CLASS 1 (Jan.

13): Introduction
Casebook: 1-19
Supplemental Material: Warger v. Shauers (U.S. Dec. 9, 2014) (posted on ANGEL)
Rules: 606(b)
Problems: I.1
Tanner v. United States
Facts: D was tried and convicted of mail fraud after the trial two jurors stepped forward
and told Ds atty that several jurors used beer, pot, wine and cocaine. D moved for new
trial

Issue: Is juror testimony to the effect that jurors sat while intoxicated a sufficient basis

upon which to grant a new trial?

Holding: NO. Jury testimony could not be admitted to impeach a verdict to hold otherwise

would be to open up juries to post verdict probing by the losing party. Juror testimony on
OUTSIDE influences may be admitted to impeach but not juror intoxication
Notes: Following a verdict in a criminal action a court is not required to consider evidence
of juror intoxication in a motion for a new trial
Rule: FRE 606(b)

Problem 1.1
Villar

CLASS 2 (Jan. 15): Relevance

Casebook: 22-42
Rules: 401, 402, 104(b)
Problems: 1.1, 1.2, 1.3, 1.6, 1.7

Probativeness and Materiality

FRE 401 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
*** to be probative, evidence need not PROVE anything conclusively. It merely must have some
TENDENCY to make a fact more or less probable***
Probativeness
1

Evidence must be probative it must tend to PROVE or DISPROVE a fact by making it more
or less probable than it would without the evidence
Materiality
Evidence is material if it bears on a fact of consequence in determining the action
- whether evidence is material therefore turns on what issues are at stake in the proceeding
Evidence may be excluded as irrelevant
1. because it is not probative of the proposition at which it is directed
2. because that proposition is not provable in the case

United States v. James

Facts: Ogden was killed by James daughter. D was charted with aiding and abetting
manslaughter -- evidence that Ogden had a violent past was not allowed by the trail judge
because it was irrelevant to the defense of self defense

Issue: Did the District Court abuse its discretion under FRE 403 by not admitting the

corroborating evidence based on the danger of unfairly prejudicing the jury again the
decedent
Holding: Yes. Corroboration of a prosecution witness by admission of criminal record is
permissible so long as the probative value of the evidence is not outweighed by the danger
of unfair prejudice.

Notes:

Probative Value of Excluded Documents

Knapp v. State 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 on trial.
** Do not confuse relevance with something that is dispositive or conclusive**
TAKE AWAY: When objecting to evidence that someone else is proffering If you can show that there are
equally plausible inferences other than what the other side is arguing you may be able to show that it isnt
relevant.
Conditional Relevance
FRE 104(b)
Cox v. State
Facts: Cox was charged with killing Leonard. Prosecution said it was in retaliation
because his friend Hammer was in jail for molesting Leonards daughter. Sought to
introduce testimony of Hammers bond hearing and that the bond wasnt reduce Cox says
2

they cant do that because it would only be relevant if Cox knew what happened at the
hearing and the state was unable to prove conclusively that cox knew.
Issue: Did the trial court err in admitting certain testimony, the relevance of which
depends upon Coxs knowledge of the content of the testimony?

Holding: No. The trial court isnt required to weigh the credibility of the evidence or

make a finding since here the relevance of the prosecutors testimony depends on a
condition of fact (whether the appellant knew of the events at the bond reduction hearing)
and because other evidence was present that would support a finding that the condition
was fulfilled the testimony is relevant and admissible.
Notes: 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 fulfillment of the condition

CLASS 3 (Jan. 20): Unfair Prejudice

Casebook: 42-65, 80-94
Rules: 403
Problems: 1.8, 1.9, 1.10
Probativeness Versus the Risk of Unfair Prejudice pg 42
Flinders Aluminum v. Mismo Fire Insurance Co.
Facts: Flinders seeks proceeds of fire insurance policy after aluminum fabtrication plant
burns down. Mismo denies flinders claim on grounds of arson asserting that Fliders hired
Avery who died in the blaze to burn down the plant to recover insurance proceeds. At trail
mismo seeked to introduce evidence that the two prior companies at which Avery worked
were destroyed by fire within the last three years.

Issue: Are the two prior fires relevant?

Holding: Relevant depends on being able to show that these fires were started by Arson
and there would need to be some evidence that Avery was involved in those prior fires

United States v. Evans courts job is to determine relevance not fact

FRE 403
State v. Bocharski
Facts: State sought to introduce photographs of the victims body into evidence (the photos

were gruesome, highly inflammatory and unduly prejudicial) D argued that they are not
contesting the manner of death they admitted that the woman was stabbed repeatedly
Issue: Did the trial court err in allowing the photographs in?
3

Holding: yes but the error did not contribute to or affect the jurys verdict. Relevant
evidence should be excluded when the probative value of the evidence is outweighed by the
risk of prejudice to the defendant. ** if a defendant does not contest the fact that is of
consequence the exhibits probative value may be minimal the photos should not have been
admitted.

Rule: FRE 403

Commonwealth v. Serge
Facts: D was charged with killing wife. State wanted to introduce CGA that demonstrated
states argument that D tampered with crime screen to stage self defense setting.

Issue: Did the court err in allowing the state to introduce the CGA?

Holding: No. The alleged prejudicial effect of the CGA did not outweigh its relevance. The
CGA was relevant evidence that enabled the commonwealth experts to illustrate their
opinions and educate the jury on the forensic and physical data

Notes: the CGA people didnt have facial features didnt look like the actual people so it
was supposed to minimize the prejudicial affect

OJ Simpson Article the court may exclude evidence if its probative value is substantially
outweighed by the probability that its admission will:
a. necessitate undue consumption of time
b. create substantial danger of undue prejudice, of confusing the issues or of misleading the
jury
Evidence of Flight
United States v. Myers
Facts: D was charged with robbery , D argues that the district court erred in instructing
the jury concerning the proper use of evidence indicating that he fled form FBI agents on
two occasionshe says it should not have been given because there was insufficient
evidence to support it.

Issue: Did the trial court err in allowing the jury instruction regarding flight?

Holding: The Flight instruction is improper unless the evidence is sufficient to furnish
reasonable support for all four of the necessary inferences -

Notes: Only evidence that D attemped to flee was furnished by Agent and agents

testimony was inconclusive

Rule: FRE 403;

Effect of Stipulation
United States v. Jackson
4

Facts: D accused of robbing bank. Made pretrial motion to exclude evidence of another
recent conviction for assault and to exclude evidence of his use of a false name after being
arrested

Issue: Is the evidence that D was arrested for assault and used a false name inadmissible

because of the danger of unfair prejudice outweighs the probabtive value? Should Ds past
convictions be admissible to show he committed the crime charged?
Holding: Yes evidence is inadmissible because it unfairly prejudices (court made
conditional ruling saying that it is inadmissible at trial provided that D enter into a
stipulation that he was in GA shortly after the robbery and while there he used a false
name) No. UNLESS D opens the door by conveying that he was never in trouble with the
law

Notes:

Rule: 403; 102

Old Chief v. United States

Facts: D was arrested after a fracas involving at least one gunshot. D moved for an order

rqing gov to not offer evidence or testimony regarding prior criminal convicitons of D
except to state that D had been convicted of crime punishable by 1 year.
Issue: Did the trial court abuse its discretion by admitting the full record of prior
judgment when the name or nature of prior offense raises risk of verdict tained by
improper considerations?

Holding: Yes. It is improper to generalize Ds earlier bad act into bad character and

taking that as raising the odds that he did the later bad act now charged. When an
element of a crime is felony-convict status, a court may force the government to accept a
defendants concession to the prior conviction as proof of that element. --- Ds prior assault
concition would take on added weight from his pending gun and assault charges.
Notes:

Rule: 403 allows the court to exclude relevant evidence whenever its probabtive value is
substantially outweighed by the danger of unfair prejudice.

United States v. Harlan

Facts:
Issue:
Holding:
Notes:
Rule:

SPECIALIZED RELEVANCE RULES

CLASS 4 (Jan. 22): Specialized Relevance Rules

Casebook: 100-22
Rules: 407, 408
Problems: 2.2, 2.3, 2.4
Tuer v. McDonald
Facts: When Ps husband went into cardiac arrest and died because it was the policy of

the hospital at the time to discontinue the use of certain drug prior to surgery she alleged
the evidence should have been admitted at trail showing the hospital changed its policy
following her husbands death.
Issue: Is evidence of subsequent remedial measures admissible to prove culpability?

Holding: NO. Evidence of subsequent remedial measures is inadmissible to prove

culpability. DR made a judgment call based on his knowledge and collective experience at
the time. The later re-evaluation of the protocol at the hospital is precisely what the
exclusionary provision of the rule was designed to encourage.
Notes:

Compromise Offers and Payment of Medical Expenses

FRE 408 forbids the admission of statements made during settlement negotiations to prove
liability or lack of liability. [doesnt require exclusion when the evidence is offered for another
purpose, such as proving the bias or prejudice of a witness. *** Not an aboluste ban on all
evidence regarding settlement negotiations permits evidence that is offered for the purpose
other than establishing liability
- does nto protect offers to compromise made before a claim of some sort has been made
Bankcard America Inc. v. Universal Bancard Systems Inc
Facts: Bankcard and University had a contract, contract stated that universal could not

steer its merchant towards bankcard competitors but it did so anyway and they negotiated
a settlement during the settlement bankcard said it would be okay for universal to steer
merchants towards competittors
Issue:

Holding: the spirit of 408 is to encourage settlements you cant induce someone and
then impeach them. Settlment will not be encouraged if on party during settlement talks
seduces the other party into violating the contract then when settlement isnt reached

accuses the party of violating the contract. To use 408 to block evidence that the
violation of the contract was invited would be unfair

Notes:

RULE: 408 and 409

CLASS 5 (Jan. 27): Propensity Rule and Other Acts Evidence Part I
Casebook: 145-71
Rules: 105, 404
Problems: 3.1, 3.2, 3.4, 3.5, 3.7
CHARACTER EVIDENCE
FRE 404(a)(1)

The Character-Preopensity Rule

People v. Zackowtiz
Facts: Ds wife was insulted on street in NY, D went back after going home, fight ensued,

D shot victim. Evidence that D owned other guns was introduced to show that D was a
desperate type of criminal a person criminally included
Issue: Evidentiary issue is the inclusion of a collection of weapons that was not the
murder weapon they were using it to say he had evil character

Holding: The evidence that D had guns prior to the murder is inadmissible they would

be admissible if they were purchased SUBSEQUENT to Ds wife being insulted in order to

show motive however ownership of weapons was not relevant to the charge.
Notes: Character is never an issue in a criminal prosecution unless the defendant choose
to make it one.

Propensity rule -- you cant use evidence of someones character OR other crimines or
acts or wrong doings to prove that they acted in /conformed with that character
The Propoensity Box

Evidence that aprtson has a particular character trait generally is not admissible to show
that the person acted in accordance with that trait at a particular time.

Evidence of
Other
Weapons
Evidence of
Other
Weapons

To Prove His
Vicious and
Dangerous
Character
To Prove His
Vicious and
Dangerous
Character

To prove he
acted in
accordance
therewith
To prove he
acted in
accordance
therewith

to prove he
killed with
premeditatio
n
to prove he
killed with
premeditatio
n

To Prove
he was at
the crime
scene

to prove
he was
the
shooter

FRE 404(b)
-

Recognizes permissible routes around the propensity box

o (1) Prohibited uses. Evidence of a crime, wront, or other act is not admissible ot
prove a persons character in order to show that on a particular occasion the person
acte din accorded with the character
o (2) permitted uses eivce may be admissible for another purpose such as proving
motive, opportunity, intent, preparation, plan, knowledge, absence of mistake or
lack of accident.
Routes Aound the Box

Proof of Knowledge
Proof of Motive
Proof of Identity
Proof of modus operandi On way to prove guilt when identiy is in dispute is to show that the
crime matches the defendants M.O. the present offense matche a past crime in idiosyncratic
ways, we may infer that the defendant committed the present offense as well --- NOT this is the
defendants kind of crime but rather this could not be ANYONE ELSES crime

** Rul 404(b)(2) does not require that trial judges admist evidence of other acts whenever such
evidence does not violate the propensity evidence ban.
SEVEN EXCEPTIONS TO 404(a)(1)
- 404(a)(2)(A)
- 404(a)(2)(B)
8

404(a)(2)(C)
404(a)(3) as elaborated by FRE 607, 608 and 609
413
414
415

Routes of Admissibility Flow Chart (page 161)

CLASS 6 (Jan. 29): Propensity Rule and Other Acts Evidence Part II
Casebook: 171-207
Rules: 404
Problems: 3.9, 3.10, 3.11, 3.13
United States v. Trenkler

Facts: D was convicted of a bunch of stuff relating to a bomb explosion. On appeal, D

argued that the court erred by allowing evidence of another bombing to have been
presented
Issue: Did the district court abuse its discretion by allowing the evidence of another
bombing in?

Holding: No. it was proper to allow evidence of prior acts because the government showed

there existed a high degree of similarity between the other act and the charged crime
Rule: 404(b)

United States v. Stevens

Facts: Charged with robbery, he is identified in line up, D cought to introduce that there

was another robbery the next weekend and things were stolen ended up in diff states than
he was in. He says he was misidentifiedwants to introduce evidence that another person
who was robbed did not identify him as the robber.
Issue: Did the district court err by prohibiting Ds evidence?

Holding: Yes. Because the prejudice isnt an issue in this case, the standard is lowered
it is reverse 404(b) a defendant may introduce other crimes evidence so long as the
evidence tends to negate his guilt and is more probative than prejudicial

Notes:

Narrative Integrity (Res Gestae)

United States v. DeGeorge
Facts: D is accused of insurance fraud relating to yacht. Prosecution wants to offer
evidence of past insurance claims D made on yachts that were accidentally lost at sea.
9

District Court allowed evidence only to show that 3 prior vessels owned by D were insured,
that he claimed they were lost, and that they were not recovered.
Issue: Did the district court err in allowing evidence of the past yachts?

Holding: No district court reasoned that hter prior losses were inextricably

intertwined with the facts giving rise to the recent indictment against D
Notes:
o Recognize 2 categories of evidence that may be considered inextricably intertwined
with a charged offense
1. Evidence of prior acts may be admitted if the evidence constitutes a part of
the transation that serves as the basis for the criminal charge
2. Prior act evidence may be admitted when it was necessary to do so in
order to permit the prosecutor to offer a coherent and comprehensible story
regarding the crime

Absence of Accident 404(b)(2)

Docrine of Chances
Rex v. Smith Ds wife was found dead in bathtub; his previous two wives also died in a bath
tub court help that evidence of previous wives deaths were admissible only for the purpose of
helping the jury to draw an inference as to whether the dead was accidental or designed by D
----- the matter depended on the unusualness of the occurrence and the number of times it was
repeated. Each additional case increased the improbability of the accident
The Huddleston Standard Rule 104(b) the court simply examines all the evidence in the case
and decides whether the jury could reasonably find the conditional fact by a preponderance of the
evidence. There has to be evidence form which a jury could reasonably believe that the prior acts
occurred pretty low standard.
Huddleston v. United States
Facts: D charged with knowing possession of stolen tapes. D claims goods were obtained
legally prosecution wants to admit evidence that D previously offered to sell TVs cheaply
and that he could obtain thousands of them

Holding: There has to be sufficient evidence that D committed the prior act (here there

was sufficient evidence) a court does nto have to make a preliminary finding of other
acts by the preponderance of the evidence rather similar acts evidence would be
admitted if there is sufficient evidence to support a finding by the jury that the defendant
committed the similar act.
Notes: proof of knowledge
10

Propensity Evidence in Sexual Assault Cases

FRE 413, 414 & 415

CLASS 7 (Feb. 3): Propensity Rule and Other Acts Evidence Part III
Casebook: 207-34
Rules: 413, 414, 415
Problems: 3.12, 3.14
Lannan v. State
Facts: Lannan was convicted of child molestation after testimony regarding prior,
uncharged acts of molestation was introduced at trial.

Rule: Court abandoned the depraved sexual exception and held that FRE 404(b) should be

used in determining whether evidence of prior sexual misconduct should be admitted.

Holding: the justification for having the rule are no longer valid. In order for prior bad
acts to come into evidence, courts must insist that such evidence be used only to prove an
element of the crime. Prior sexual misconduct can be admitted if it proves motive,
opportuntity, intent, plan, knowledge or identity.

Notes: The depraved sexual instinct exception to the general rule against admissibility o
prior bad acts should no longer be recognized.
o *** though the court stated that they should not recognize the deparaved sexual
exception they still upheld the conviction holding that the iumpact of the improper
testimony was not sufficient to warrant reversal*****

State v. Kirsch
Facts: D was charged with molesting young girls. State moved to introduce evidence of
other uncharged sexual assaults as evidence of the defendants motive, intent and common
plan or scheme.

Issue: D the court err in admitting evidence of other bad acts committed by the defendant
Holding: yes. The testimony concerning the uncharged assaults should not have been

admitted as it constitutes evidence offered to show defendants propensity to commit

sexual assaults and the defendant acted in conformity therewith. The evidence was not
offered for Ds motive intent and or common plan.

Notes: Under FRE 414 in a criminal case in which D is accused of child molestation,
evidence of ds commission of other offenses of child molestation is admissible (child under
14)

United States v. Guardia

11

Facts: Prior to trial court excluded evidence of 4 women who alleged that defendant
abused them in ways similar to the facts in the case against defendant. Prosecution
appealed the judgment.

Issue: Did the court err in excluding the evidence?

Holding: Rule 403 (propensity) applies to all types of evidence including those that would
have been admitted under FRE 413. Court did not abuse its discretion in dtetermining
that the probative value of the evidence was substantially outweighed by the danger of
unfair prejudice.

Notes:
o Threshold requirements for Ruel 413
1. A district court must determine that the defendant is accused of an offense
of sexual assault
2. The court must find that the evidence profeered is evidence of the ds
commission of another offernse of sexual assault
3. The evidence must be relevant.

United States v. Mound

Facts: D convicted of various sexual abuse crimes with minor. D challenging cts decision
to allow into evidence a past conviction of ds for child abuse under FRE 413.

Issue: Did the trial court err in allowing evidence of Ds past conviction for child sexual

abuse? Is it error to admit items into evidence under rule 413 when the same evidence
would be inadmissible under rule 404(b)?
Holding: No. Congress has ultimate power to make exceptions to FREs, the rule bears a
rational relation to some legitimate end and congress judgment in enacting the rule was
rational. The court properly applied the Rule 403 test and determined to allow into
evidence the prior conviction. Rule 413 was intend to have the effect of allowing certain
evidence that would be inadmissible under rule 404(b) and the present case is one such
situation.

Notes:

CLASS 8 (Feb. 5): Character and Habit

Casebook: 234-56
Rules: 405, 406
Problems: 3.15, 3.16, 3.17, 3.19
Proof of the defendants and the Victims Character
FRE 404(a)(2)(A); 404(a)(2)(B); 405
Michelson v. United States
12

Facts: D was convicted of bribing revenue agent. At cross of his character witnesses the
prosecutor asked the witnesses if they had ever heard that defendant was previously
arrested for receiving stolen goods. D claimed that that question was a reversible error.

Issue: whether a party has the right to cross examine another parties character witnesses

and inquire about past bad acts such as arrests and/or convictions
Holding: Court said that the question was permissible. Rejected appellate courts request
to adopt a rule limiting character evidence on cross examination concerning defendants
prior arrests to only those arrests relating to similar offenses to those for which defendat
was on trial

Notes: ***When a defendant puts his character at issue by calling character witnesses to
testify to his good character the prosecution may ask those witnesses if they have heard of
specific bad conduct relating to D***
o Character witnesses can be used to impeach/show the person was not as honest and
truthful as the jury thought.
o Witnesses said that they had known him for 30 years so they kind of opened
themselves up to the questioning.
Prosecution could not raise question unless prosecution had hard evidence
that D was arrested forrecieivng stolen goods.

The Common Law and Federal Rules Compared

Rule 404 made CLEAR that only criminal defendants may open the matter of character under
rules 404(a)(2)(A) and 404(a)(2)(B).
Distringuishing Proof of Character Under Rules 413 and 415
Requires proof by SPECIFIC ACT
Prosecutor must offer evidence that the defendant committed any other sexual assult or
any other child molestation flow chart on page 161
404(a)(2)(b) Pertinent character trait
Evidence of Habit
FRE 406
Halloran v. Virginia Chemicals Inc
Facts: Trial judge refused to allow D to introduce evidence that P had previously used an
immersion heating coil to heat cans of refridgerent to show he was acting in such a
negligent fashion when one of the cans blew up and injured him.

13

Issue: Can evidence of habit or particular usage ever be introduced to prove negligence on
a particular occasion?

Holding: Yes. Evidence of habit or regular usage should be admissible to prove the

plaintiff followed the same procedure the day he was injured demonstrated and
consistent responses under certain circumstances are more likely to be repeated when the
circumstances again present themselves
Notes:

PROBLEMS
3.15, 3.16, 3.17, 3.19
Impeachment and Character for Truthfulness
CLASS 9 (Feb. 10): Impeachment and Character for Truthfulness
Casebook: 257-66, 269-76, 284-98, 307-17
Rules: 607, 608, 609
Problems: 4.1, 4.2, 4.3, 4.5, 4.7, 4.9
Modes of Impeachment

Noncharacter impeachment lying NOW instead of just being a liar

o Contrdiction by conflicting evidence can question about facts or can contract
as claim with the common esperiences of life iwhich in light of other facts might
render her testimony implausible.
o Contradiction by post inconsistent statement
o Evidence of bias describes the relationship between a party and a witness

which might lead the witness to slant his testimony in favor of or against a party
Character based impeachment attempt to impeach by showing that she is, by trait,
a liar and lied in conformity with that trait.
o Rule 607 ETIERH party may attack a witnesss credibility including the party
that sponsored the witness.
o Rule 608(a) Either party may offer evidence of a witnesss character for
untruthfulness. Evidence must take on the form of opinion or reputation. Permitted
inference is that the witness has a bad (or good) character for truthfulness and
therefore is more (or less) likely to ahe lied in this cae.
o Rule 608 (b) on cross a party may ask a witness about specific instances of a
witnesss conduct if they are probabtive of the character for truthfulness or
untruthfulness
14

o Rule 609 either party may seek to impeach a witness by showing her past
conviction of a sufficiently serious or deceptive crime.
FLOW CHART bpage 260
United States v. Whitemore
Facts: Charged with unlawful possession of a firearm. Appealed the firearm conviction on

the ground that the district court committed a reversible error in preventing him at trial
from attacking the credibility of the arresting officer
Issue: Did the trial court err in excluding Ds proposed character witness and exluding his
proposed cross examination of the officer?

Holding: Yes; No. The court did not abuse its dicretion exluding reputation evidence
regarding officer from 3 witnesses HOWEVER the district court erred in prohibiting
defendant from cross examining the officer about certain instances of past conduct under
FRE 608(b). The error was not harmless. The government did notshow that a reasonable
jury would have put asaide relevant impeaching evidence about the govs ey witness and
reached a similar verdict had it heard the exlucded cross examination

Rule:

Notes:

PAGE 270

Character and credibility study guide

Evidence of a persons character if offered to prove action in accordance therewith is generally
barred. There are 7 exceptions
(1) FRE 413 similar offenses in a sexual assault prosecution

(2) FRE 414 similar offenses in a child molestation prosecution

(3) FRE 415 similar offenses in a civil action concerning sexual assault or child
molestation
(4) FRE 404(a)(2)(A) character of a criminal defendant, offered by the accused
(5) FRE 404(a)(2)(B) character of a victim, offered by a criminal defendant

(6) FRE 404(a)(2)(C) character of a homicide victims peaceful character offered by the
prosecutor to rebut evidence that the victim attacked first
(7) FRE 404(a)(3) character of a witness.
-

General rules 608 and 609 say that once a witness has offered testimony the opposing
lawyer may use character evidence to attack the witnesss credibility.
15

o ALL CHARACTER EVIDENCE MUST BE RELEVANT must bear on a

pertinent trait to be pertinent must bear on the witnesss character for truth
telling.
-

Rule 608(a) permites a litigant to offer evidence of a witnesss character for truthfulness

or untruthfulness in the form of opinion or reputation. This evidence must pertain to

truthfulness or untruthfulness not peacefulness, temperance or anything else.
Rule 608(b) inmposes two limits
o The specific conduct must be probative of truthfulness or untruthfulness
o It may not be proved by extrinsic evidence (must accept the witnesss answer to the
question)
o Court has discretion inquiry must survivie 403 weihing
o A lawyer may not ehticlly ask about specific instances of bad conduct without having
a good faith basis for believing they took place.

United States v. Brewer

Facts: D charged with kidnapping, filed motion to suppress prosecutions introduct of past

criminal convictions which would be used ti impeach D if he takes the stand at trial.
Issue: Under FRE 609 should Ds 4 past convicitons be admissible in Ds current trial for
kidnapping?

Holding: Motion to suppress denied s to 3 of the 4 past convictions and granted to the

prior kidnapping conviction. The probative value of the past conviction on defendants
truthfulness does not outweigh the prejudicial effect should the jury hear it.
Rules: 403; 609

Notes: cites to Gordon and 5 factors

o
o
o
o
o

1. The nature of the crime

2. The time of conviction and the witness subsequent history
similarity between the past crime and the charged crime
importance of defendants testimony
the centrality of the credibility issue.

Standards of Admission
-

609(a)(2) any crime must be admitted if the court can readily determine that
establishing the elements of the crime required proving OR the witnesss admitting a
dishonest act or false statement
609(a)(1)(A) If witness not accused in criminal case, conviction of a crime publishable
by death or by imprisonment for more than one year must be admitted subject to rule
403

16

609(a)(!)(B) IF the witness is the accused in a criminal case, conviction of a crime

publishable by death or by imprisonment for more than one year must be admitted if
the probative value of the evidence outweighs its prejudicial effect to that defendant
609(b) If more than 10 years have passed since the witnesss conviction or release from
confinement for it, whichever is later evidence of a conviction is admissible only if its
probative value outweighs prejudicial value
609(d) evidence of a juvenile adjudication is never admissible in a civil case or to impeach
the accused in a criminal case BUT may be used to impeach ANOTHER witness in a
criminal case if the evidence otherwise qualifies under rule 609 and admitting the
evidence is necessary to fairly determine guilt or innocent.

Rehabilitating the credibility of a witness 308

-

Rehabilitation concerns a partys attempt to support a witnesss character for

truthfulness
o A party may rehab its own witnesss character for truthfulness ONLY AFTER the
other party has attacked the witnesss character for truthfulness
o Rule 608

Page 312-317
The Rape Shield Law
CLASS 10 (Feb. 12): Rape-Shield Law
Casebook: 318-23, 331-60
Rules: 412
Problems: 5.1, 5.2, 5.4, 5.5

People v. Abbot (1838)

Facts: D was charged with rape. Court excluded testimony slightly impeaching the
character of the prosecutrix for truth and veracity offered to prove her bad character.

Issue: Can the female accuser be asked about her past sexual experiences?

Holding: Yes court reasoned that the accuser must answer questions concerning past
sex. Because rap by the very nature are private matters therefore the accuse is commonly
the only witness to the alleged act other than D

General Rule: In a prosecution for rape, the female accusers alleged promiscuity may be inquired
into, as may the general character of her truth and veracity and her general moral character, and the
accuser is not privileged from answering such questions.
Notes:
17

State v. Sibley 1985

Facts: D convicted of defiling step daughter. The court admitted evidence of the step
daughters chasity and virtue and other sexual acts

Issue: Did the court err in allowing evidence of victims chastity and virtue?

Holding: Yes. Evidence of victims alleged unchastely were not permissible for the purpose
of affecting her credibility or for impeaching her and therefore the lower courts admission
was an error

Rules: Evidence of specific acts of sexual deviancy by a female with persons other than the accused
defendant are inadmissible when offered for impeachment purposes.
Notes:

Past allegedly False accusations

State v. Smith
Facts: D charged with indecent behavior with juvenile. When D on cross attempted ton

inquire whether victim had ever made similar accusations against others the lower court
did not allow it citing the rape shield statute.
Issue: Did the lower court err by not allowing D to cross about similar past accusations

Holding: yes. Lower court committed reversible error by disallowing such evidence the

evidence disallowed was not concerning the victims past sexual behavior, history or
reputation for chastity but rather offered for impeachment purposes
Rule: Prior false allegations of past sexual assault do not constitute past sexual behavior
for purposes of the rape shield statute and are therefore admissible evidence.

Notes:

Olden v. Kentucky
Facts: Petitioner was convicted of forcible sodomy. P maintained that sex was consensual
victim gave a bunch of different stories. P appealed because the courts refusal to allow
him to impeach his codefendants testimony arguing that he was deprived of his 6 th
amendment right to confront witnesses against him.

Issue: Did the court err by not allowing him to confront the witness?

Holding: yes, the lower court erred. The court ruled that it was plain that a reasonable
jury might have received a significantly different impression of the witnesss credibility
had defense counsel been permitted to pursue his proposed line of cross examination

Rule: The confrontation clause mandates that a defendant be permitted to cross examine
a witness on any relevant matter FRE 412

Notes: Supreme court examined the following factors:

o The importance of the witness testimony for the prosecutions case
18

o
o
o
o

Whether the testimony was cumulative

The presence or absence of corroborating or contradicting material evidence
The extent of cross examination allowed
Overall strength of proseuctions state

Stephens v. Miller
Facts: Stevens was convicted of attempted rape. According to Stephens during sex he

made a comment to the victim concerning her sexual history with another man, victim got
mad told him to leave. Stephens argued that court violated his constitutional right to
testify in his own defense by preventing him from stating his version of the events.
Issue: Did the lower court err by not allowing him to testify about his comment regarding
her sexual history?

Holding: No a proper balance was struck between the interest of the state and the

appellants rights to testify, as appellant was permitted to give his entire version of the
facts except for the excluded evidence.
Notes:

United States v. Knox

Facts: D convicted of rape. Ds friend had been involved withi victim, after a night of

drinking D and victim had sex. D says consensual, V says no.

Issue: Should the D be allowed to testify in his offer of proof under FRE 412(c)(2) about
victims alleged promiscuous sexual past?

Holding: No. the testimony is neither material nor relevant and it was not error for the

trial court to disallow such evidence. The court cites the purpose and rationale of the rule
in reaching its holding, stating appellant sought to do what rule 412 seeks to prevent,
portray an alleged rape victim as a bad person who got no more than she deserved
Notes:
THE RULE AGAINST HEARSAY

CLASS 11 (Feb. 17): Hearsay Part I

Casebook: 374-406
Rules: 801(a)-(c), 802y
Problems: 7.1, 7.2, 7.4, 7.6, 7.9, and hearsa quiz (pp. 403-06)
-

Four testimonial capacities

o Perception
19

o Memory
o Narration
o Sincerity
Hearsay a statement that
o The declarant does not make while testifying at the current trial or hearing; and
o A party offers in evidence to prove the truth of the matter asserted in the statement
by the declarant.

THREE INITIAL QUESTIONS

o 1. Is there a statement?

o 2. Was it made out of court?

o 3. Is it now being offered for the truth of the matter asserted?
NON hearsay
-

Words offered to prove their effect on the listener

o Ex. To establish his fear was reasonable Bill might offer evidence that Alice had
warned him of Joeys ill intentions he might say Alice told me Watch out for
Joey. Hes looking for you and he has a gun. Admissible
NOT hearsay because it is offered to prove the defendant had reason to fear
Joey at the time of the attack
o Ex. Bill offered Alices statement to prove Joey really was looking for him and really

had a gun inadmissable

Hearsay

Legally operative words (Verbal Acts)

o Depending on the word it may be admissible
I will kill you = a threat and admissible
Hes a thief = said in public can be slander
Statement operate indepdently of the speakers belief or intended
meaning. The soundness of the testimonial capacities therefore doesnt
matter, so there is no reason to exclude her words as hearsay.
Inconsistent statements offered to impeach

HEARSAY FLOWCHART page 383

CLASS 12 (Feb. 19): Hearsay Part II
Casebook: 406-30
Rules: 104(a), 801(d)(2), 805
Problems: 7.11, 7.12, 7.13, 7.15, 7.16
EXCEPTIONS TO THE HEARSAY RULE
20

(1) 801(d)(1): Declarant-Witness Prior Statements

(A) Prior inconsistent statements
(B) Prior consistent statements

(C) Statements of identification

(2) 801(d)(2): Opposing Parties Statements
(A) A partys own statements
(B) Adopted Statements
(C) Statements by spokepersons
(D) Statements by agents
(E) Coconspirators statements
(3) 803: Exceptions applicable regardless of the declarants availability
(1) Present sense impressions
(2) Excited utterances
(3) Statements of Then existing mental, emotional or physical condition
(4) Statements for medical diagnosis or treatment
(5) Recorded recollections
(6) & (7) Business records
(8) & (10) Public Records and Reports
(4) 804: exceptions applicable only when the declarant is unavailable
(b)(1) former testimony
(b)(2) dying declarations
(b)(3) statements against interest
(b)(6) forefeiture by wrongdoing
(5) 807: Residual exception
Opposing partys statements 801(d)(2)(A) a statement made by the defendant is not
hearsay when offered against her at trial
Mahlandt v. Wild Canid Survival & Research Center
Facts: Trial court hearing Ps civil action against D refused to let into evidence certain
conclusionary statements against interest made by employee at the center employee at
center had left a note on door saying that the wolf had bit a child and said something
similar later that day (no one actually saw the wolf bite the child)

Issue: Whether the note the employee left and the statement made later to his superior

were inadmissible as hearsay? Whether the statement in the board of directors meeting
minutes was inadmissible hearsay?
Holding: No and No the note left by the employee and the statement that he later made
were admissible under the statement of a party opponent exception to the hearsay rule. It
21

was admissible against the corporate defendant because the employee was an agent of the
corporate defendant at the time. The minutes were admissible against the corporate
defendant but not against the employee because the employee wasnt there
Rule: FRE 801(d)(2)(D) makes statements made by agents within the scope of their
employment admissible and there is no implied requirement that the declarant have
personal knowledge of the facts underlying the statement viucarious admissions

Bourjaily v. United States

Facts: D was charged with conspiring to distribute cocaine and possession of coke after he

attempted to buy coke from FBI informant through his co-conspirator Leonardo. D object
to admission of taped conversations between Leonardo and informant.
Issue: Are statements made by the co-conspirator admissible hearsay against the
petitioner?

Holding: Yes. Lower court was correct in allowing co-conspirators statements. The

standard of review for determining whether a conconspiracy exists for the purpose of
801(d)(2)(E) is preponderance of the evidence and the evidence available met that
threshold.
Rules: A statement by a co-conspirator is admissible evidence under rule 801(d)(2)(E)

Notes: The co-conspirator exception not only allows statements by co-conspirators to come in as a
hearsay exception, but the statements themselves can be used to determine if there is a conspiracy for the
purposes of letting the statements in.

Rule

Topic

613

Past inconsistent
statements offered to
impeach

801(d)(1)

Past inconsistent
statement offered
substantively

(A)

801(d)(1)(B) Past consistent

statements

Conditions
Regarding
Declarants
Availability or
Memory
Declarant must
testify at current
proceeding

Conditions
Regarding post
statement

Declarant must
testify at current
proceeding and be
subject to cross
examination about
the prior statement

Past statement is
inconsistent and was
given under oath at a
proceeding or
deposition

Declarant must
testify at current

Past statement is
consistent, is offered

22

Questioning lawyer
must have good faith
belief that witness
made past statement

proceeding and be
subject to cross
examination about
the prior statement

to rebut charge of
recent fabtrication or
improper motive and
meets Tome rule

801(d)(1)(C) Statements of
identification

Declarant must
testify at current
proceeding and be
subject to cross
examination about
the prior statement

Past statements
identifies a person
whom declarant
perceived earlier

804(b)(1)

Past testimony

Declarament must
be unavailable as
defined by rule
804(a)

Past statement was

testimony (given
under oath) and was
a. at a trial,
hearing or
lawful
deposition and
b. subject to
examination
by party
against whom
now offered (or
by civil
predecessor in
interest) who
then had
similar motive

612

Refreshing witness
memory

Witness must be on
stand; memory must
be exhausted

None (note that

memory may be
refreshed with many
things; if a writing is
used rules 612
imposes conditions

803(5)

Recorded recollection

Witness must be on
stand; must be
unable to recall well
enough to testify
fully and accurately

Record was made or

adopted when
witnesss memory
was fresh and
accurately reflects
witnesss knowledge

23

CLASS 13 (Feb. 24): Hearsay Part III

Casebook: 430-74
Rules: 613, 801(d)(1)
Problems: 7.17, 7.18, 7.19, 7.20, 7.21

United States v. Barrett

Facts: D identified as having participated in theft and sale of stamp collection from
museum. D appeals conviction D sought to exclude testimony by an alleged co
conspirator that he had participated in the burglary as he was only charged with the sale
of goods. He sought to introduce evidence of various exculpatory conversations between
other alleged co-conspirators

Issue: Did the trial court err by excluding conversation tending to exculpate the

defendant? Whether the testimony of the last two defense witnesses was improperly
excluded
Holding: Yes. The testimony was not offered to show propensity but rather show identiy
and knowledge. Coconspirator who made the statement died prior to Ds trial. Court
agreed with D that the testimony could be admissible as a statement against interest
pursuant to FRE 804(b)(3).

Rule: Where a declarant was unavailable as a witness, a statement made by him that exposed him to
criminal liability and offered to exculpate the accused was admissible provided that the statement was
proven to be trustworthy by corroborating circumstances.
Notes:

United States v. Ince

Facts: D appealed decision convicting him of assault with a dangerous weapon with intent

to do bodily harm arguing that it was a reversible error to admit his alleged confession in
order to impeach the credibility of the government witness. On night of shooting Neuman
a companion of Ds told officer and signed a statement that D had fired shots. At trial
Neumann could nto remember what she told officer, prosecution called officer to stand to
testifie as to what Neumann told him.
Issue: Was the testimony of the officer offered to prove the truth of the matter asserted in
Neumanns out of court statement or offered to impeach Neumanns credibility and did the
lower court err in admitting the officers testimony

Holding: Officers testimony was offered to impeach Neumann BUT the lower court
committed an error because the testimony carried a high risk of prejudice and was lackin
gin any probative value.
24

Rules:

Notes:

Fletcher v. Weir
Facts: D was convicted of first degree manslaughter after he stabbed victim in parking lot.
D asserted for the first time at trial that he acte din self defense and that the stabbing was
accidental. When arrested however he didnt assert that he acted in self defense

Issue: Was it a violation of Respondents due process rights under the Fourteenth Amendment to the
United States Constitution to use Respondents post-arrest silence for impeachment purposes, where
there was no evidence that Respondent had received the required Miranda warnings?
Holding: No. no violation of due process occurs under such circumstances where there is
evidence that no Miranda warnings were given and when the d took the stand. Court
stated that

Notes: Miranda warning by their very nature implied assertion that ones silence will not
be used against them. Here since no Miranda warnings were present when respondent
chose to take the stand he was open to cross and no violation of due process occurred.

Evidence of SILENCE may serve to impeach

Adopted Admissions governed by Rule 801(d)(2)(B) are substantive evidence of guilt,
admissible to prove the truth of the adopted acusation.
- 4 preconditions to deeming silence an adoption
1. The adopted statement was heard and understood by the party against whom it
is offered
2. The party was at liberty to respond
3. The circumstances naturally called for a response
4. The party failed to respond.
custody

Defendant in
custody/pre-Miranda

May silence be an
adoption under FRE
801(d)(2)(B)

?? Circuits are split

Yes. US v. Fraiser

May silence be used to

impeach?

Yes.
Jenkins v. Anderson

Yes.
Fletcher v. Weir

Defendant NOT in

Defendant in
custody/POSTMirand
a
No.

No. US v. Florida

Tome v. United States

25

No.
Doyle v. Ohio

Facts: D convicted of felony sexual abuse of child appealed contending that the trial court
abused its discretion by admitting out of court consistent statements made by his daughter
to six prosecution witnesses who testified as to the nature of Ds sexual assault on
daughter.

Issue: Whether out of court consistent statements made after the alleged fabrication or

after the alleged improper influence or motive arose are admissible under FRE 801(d)(1)
(B)
Holding: No. statements were inadmissible 801 defines prior consistent statements as
non hearsay only if they are offered to rebut a charge of recent fabrication or improper
influence or motive Prior consistent statements are not admissible to counter all forms of
impeachment or to bolster the witness merely because she has been discredited.
Additionally the prosecution emphasized the statements for their probative value not their
tendency to rebut the impact of the alleged motive.

Rule: FRE 801(d)(1)(B) permits prior consistent statements to be used for substantive

purpose after the statements are admitted to rebut the existence of an improper influence
or motive.
Notes:

Commonwealth v. Weichell
Facts: D involved in fight, day after fight Shea saw D and Vic arguing. 10 days later Vic

was shot and killed. Foley was nearby and claimed he heard 4 bangs, saw a man run and
pass under a street light. Foley assisted police in making a composite drawing of the mans
face. D argued that the composite sketch was inadmissible hearsay
Issue: Did the court err by admitting the composite sketch?

Holding: No. Under 801(d)(1)(C) a statement of prior identification is not hearsay if made

by a witness who testifies at trial and is subject ot cross examination concerning it.
Rules:

Notes:

United States v. Owens

Facts: Victim was beaten with a pipe and badly injured. Suffered memory loss. When
interviewed couldnt remember name of attacker however at a later meeting he
remembered and identified D from series of photographs.

Issue: Does the confrontation clause of the 6th amendment bar testimony concerning prior
out of court identification when the identifying witness is unable, because of memory loss,
to explain the basis for the ID? Does Rule 802 bar testimony?

26

Holding: No and no. Confrontation clause guarantees only an opportunity for effective
cross examination, not cross examination that is effective in whatever way and to whatever
extent the defense might wish

Rule: as long as the opponent has the ability to ask question to the declarant about his

prior identification, the prior identification qualifies as non-hearsay under 801(d)(1) even
though declarant admits to having a total lack of memory about the evnt that gave rise to
the ID.
Notes:

CLASS 14 (Feb. 26): Hearsay Part IV

Casebook: 474-510
Rules: 804
Problems: 7.22, 7.23, 7.25, 7.27, 7.28
United States v. Duenas
Facts: Witness cop unavailable

Issue: Can testimony from suppression hearing come in/ Did D have similar motive
quesiotning cop at suppression hearing as he does now?

Holding:

Rules:

Notes:

Lloyd v. American Export Lines, Inc.

Facts: In defending against a counterclaim brought by D, D sought to introduce into
evidence testimony that P who was unavailable had given at a Coast Guard hearidng
regarding the right between himself and Alvarate on board one ot he Exports (d) ships.

Issue: Should Ps testimony from the prior hearing regarding the revocation of his license

have been admitted in alvarezs claim under 804(b)(1)s exception to the hearsay rule for
prior testimony
Holding: Testimony was admissible Coast Guard and Alvarez shared a community
interest which meets the rules predecessor in interest requirement and because both the
coast guard and alvarez had similar motive to develop plaintiffs prior testimony

Rules: The prior testimony of an unavailable witness is admissible under 804(b)(1) if the

party against whom it is offered or a predecessor in interest had the opportunity and
similar motive to develop the testimony by direct, cross or redirect examination
Notes:
27

Williamson v. United States

Facts: Car driven by Harris stopped he consented to search, kilos of coke in trunk. Harris
admitted to DEA agent that coke belonged to D. When agents sought to arrange controlled
delivery of coke Harris changed story indicating that D was driving ahead of him in a
rented car and witnessed the whole thing. Trial ct allowed agent to relate statemenst by
Harris into the record cuz he refused to testify.

Issue: Whether Harris statements to law enforcement were admissible under 804(b)(3)

dealing with statements against interest

Holding: Some statements were admissible some were not only the statements that were
directly inculpatory fell under the exception to the hearsay rule dealing with statements
against interest. All other statements in larger narrative should have been excluded.

Rules: 804(b)(3)

Notes: Reasoned statements which at the time of their making so far tended to subject
the declarant to criminal liability that a reasonable person in the declarants position
would not have made the statements unless believing them to be true.

Shepard v. United States

Facts: D convicted of poisioning wife. Prosecution alleged he was in love with another

woman and wanted to marry her. While on deathbed wife had convo with nurse and asked
nurse to obtain whiskey from Ds closet explaining that was the bottle she drank from
before getting sick. Asked nurse to test for poision went on to say that hubby poisioned her.
Issue: Whether the statements of dying wife were admissible under the dying declaration
exception to the hearsay rule? Whether the statements that the dying woman made to her
nurse were admissible to show her state of mind thus qualifying as an exception to the
hearsay rule?

Holding: No and No. No evidence that statements were made under the shadow of

impending death or that the patient had lost all hope of recovery (the statements made to
doctor later she implored him to make her well). Statements looked backward in time and
did not fall under Hillmon doctrine allowing admission of statements that would show the
state of mind or intention of an unavailable declarant.
Rules: dying declarations FRE 804(b)(2)

Notes: Mrs. Shepard, Mr. Poos and testifying witnesses are all alike in that 806 opens the
credibility of each of them to attack (or support)

United States v. Gray

Facts: D convicted of mail fraud and wire fraud relating to receipt of insurance proceeds
following death of second husband and former lover. D told Wilson that she had killed both
28

her husbands and another man. D seeks new trial based on admission of testimony
concerning several out of court statements made by former husband during 3 months prior
to murder.
Issue: Were the statements made by deceased husband inadmissible hearsay?

Holding: No. Court correctly allowed statements in. A defendat who wrongfully and

intentionally renders a declarant unavailable as a witness in ANY proceeding forfeits the

right to exclude, on hearsay grounds, the declarants statements at that proceeding and
any subsequent proceeding.
Rules: 804(b)(6) Forfeiture by wrongdoing

Notes: D argued that rule doesnt apply because she didnt INTEND to procure Gray as a

witness. Court says that rule doesnt require any specific trial rule applies WHENEVER
ds own wrongdoing renders witness unable to testify
Court must find, by preponderance of the evidence that
1. D engaged or acquiesced in wrongdoing
2. That was intended to render the declarant unavailable as a witness
3. And that did, in fact, render declarant unavailable as a witness

*** Court need not hold an independent evidentiary hearing if the requisite findings may
be made based upon evidence presented in the court of the trial***

CLASS 15 (Mar. 3): Hearsay Part V

Casebook: 510-38, 542-48

Rules: 602, 612, 803

Problems: 7.29, 7.30, 7.31, 7.33, 7.34, 7.38

Mutual Life Insurance Co v. HIllmon

Facts: D brought suit against Mutual Life to collect on insurance policy for dead husband.

Insurance company alleged that Hillman wa not dead and at trial attempted to show that
the body that had been buried was NOT Hillmon but Frank Walters. Insurance co
attempted to introduce a letter written TO Walters fiance that he intended to go to
crooked creek at the time when the body was discovered. Letter was not admitted.
Issue: Where an actors intentions are material factor in a controversy, is evidence
admissible to establish this intent?

Holding: Yes. Where a partys intention is a distinct matieral fact in a chain of

cirucmstances it may be proved by contemporaneous oral or written declarations of the
party. Evidence of walters intention to go to crooked creek is admissible to create the
inference that since he intended to go there at the time the letter was written that he DID
29

go there. It is NOT proof that he actually went only that it is more likely than not that he
did. The letters were probative on walters current state of mind and it was an error to
exclude them.
Rule: 803(3) Statements of Then existing condition

Notes:

Shepard v. United States (1933) page 521

Facts:

Issue:

Holding:

Rules:

Notes:

United States v. Iron Shell

Facts: Victim was sexually assaulted, following assault, victim sought help and was
interviewed by police and examined by physician within hours. Vic. Told officer she was
grabbed, held around the neck and threatened. Officer testified to these statements at
trial. Statements vic made to Hopkins during the examination were also admitted into
evidence. Appellant appeals arguing that statements were inadmissible hearsay

Issue: Did the trial court err in allowing the officers statements in? Did the trial court err

in allowing the Doctors statements in?

Holding: No and No. The amount of time that had passed form the assault until the
statement was made was not too long( under an hour) for the trial court to have found that
victim was still under the stress of excitement

Rules: Admissibility of statements made for medical diagnosis 803(4) an exception to the

hearsay rule is created that permits admission of statements made fore purpose of medical
diagnosis or treatment.
o Statement made to doctor admissible under 803(4)
o Statement made to officer admissible under 803(2)
Notes: confrontation clause not violated because statements had sufficient indicia of
reliability

Johnson v. State
Facts: D convicted of murdering a man. D argued that court erred in allowing the
admission of extraneous evidence in the form of a previously recorded statement of a
prosecution witness that was read into the record after the witness indicated he had no
recollection of the events in question
30

Issue: Did the trial court err in allowing the written statement of a prosecution witness
into the record?

Holding: Yes. Admission of the recorded recollection was a reversible error because the

elements of a state equivalent to 803(5) were not present there was no evidence that the
witness had first hand knowledge of the event and no testimony given that the witnesss
memory was correctly transcribed or that the factual assertions obtained in the statement
were true.
Rules: 803(5)

Notes: Four Factors to admit

o 1. Witness must have firsthand knowledge of the event
o 2. The written statement must be (a) memorandum made at or near the time of the
vent while the witness had a clear and accurate memory of it
o 3. The witness must lack a present recollection of the event
o 4. The witness must vouch for the accuracy of the written memorandum

CLASS 16 (Mar. 5): Hearsay Part VI

Casebook: 548-85
Rules: 807
Problems: 7.39, 7.40
Palmer v. Hoffman
Facts: Respondent and spouse were injured at railroad crossing. Jury deliberated whether
the train failed to blow whistle, ring bell or have light burning in front of train. Petition
attempted to admit statements from train engineer made in interview 2 days after
accident. Engineer died before trial, petition attempted to admit statmanes as a business
record arguing that they were made in the course of a routine accident report. Court did
not allow statements.

Issue: Did the court err by not allowing the statements of the deceased engineer into

evidence?
Holding: no. The supreme court reasoned that the statements were not in a record
inherent for a railroad company. they didnt want to broadent the scope of the rule by
declaraing that preparation for litigation was a routine practice of the business.
MOREOVER the engineer had motive to be untrustworthy in the interview

Rules: 803(6) and 803(7)

Notes:

United States v. Vigneau

31

Facts: D convicted of money laundering, at trial court allowed gov to introduce western
union to send money forms that D allegedly filled out to establish that D sent the money
in question. Forms were admitted as business record exception to hearsay rule. D argued
that gove should not have allowed them to be admitted

Issue: Are routine forms and records complete?d by individual customers admissible as

business records exception to the hearsay rule

Holding: No business records exception does not render admissible statements containe
within business records that were made by persons who are not part of the business.

Rules: Business and public Records business records otherwise admissible under an
exception to the hearsay rule are NOT precluded from admission merely because they are
based on other buwiness records or the nonhearsay statements of agents on matters
within the scope of their agency.
Notes: This document might have been admissible if Western Union had used a procedure for verifying
the identity of the sender, but at the time of this trial, Western Union had no such procedure, making it
impossible to prove that the person who filled out the sender information on the forms was who he
said he was.

Beech Aircraft Corp v. Rainey

Facts: Product liability suit filed against Beech for the death of two navy pilots when a

Beech aircraft crashed during training manuvers, the trial judge allowed some conclusions
and opinions in an investigative report be admitted by excluded others.
Issue: Are statements in public records and reports in the form of opinions or conclusions
admissible?

Holding: Yes. The court wanted a broad interpretation of the rule to encompass records

that may have these statemetns and yet have a high level of trustworthiness (report was
written by a navy lt) The plaintiff should be allowed to introduce other portions of a record
under the rule of completeness a doctrine that ensures that misunderstanding or
distortions of partially admitted records will be clarified.
Rules: 803(8)(c)

Notes: Court concluded that facts as definied by FRE should include conclusions or
inferences that are based on facts. Concern of whether the record is trustworthy btu rule
includes escape clause that refuses admittance of records where circumstances lead to its
unreliability.

POLICE REPORTS AND BUSINESS RECORDS

United States v. Oates
Facts: D arrested, cops found heroin during terry stop. Sent to chemist who determined
drug found was heroin, chemist unable to come to court (due to illness) state wanted to
32

admit the chemist report that identified the substance found. D argued that evidence
found at stop should be suppressed. D argued that chemist report should be excluded.
Issue: Whether the chemist report should be excluded because of hearsay

Holding: Yes. The chemist is considered a law enforcement personal under FRE 803(8)(B)

and the report cannot be considered a pubic record. Heightened concern over the
admittance of lawwhen we move form private businesses to public officers and if we
imagine a criminal prosecution wh hold out specter of serious confrontation clause
problems.
Rules: Business and Public records evaluative and law enforcement reports which fail to
quality under the public records exception to the hearsay rule cannot be admitted as
business records.

Notes: Police and evaluative reports not satisfying the standards fo FRE803(8)(B) and (C)
may not qualify for admission under 803(6) or any other exceptions ot the hearsay rule.

United States v. Hayes

Facts: D charged with tax evasion. D argues that trial court erred in admitting computer
data evidence which showed that he failed to file an income tax return for the 1981 tax
year he argues that computer data is untrustworthy and therefore inadmissible under
803(6)

Issue: Did the trial court err in admitting the computer data evidence under 803(6)
Holding: No. Rule 803(6)(A) does not compel the exclusion of documents properly

admitted under rule 803(6) where the authoring officer or investigator testifies. Ct found
that general evidence presented by D even if taken as true does not lead to the conclusion
that the IRS record keeping system is unreliable or untrustworthy.

Rules: 803(6)
Notes:

United States v. Weiland

Facts: Concerned the admission against a criminal d of items contained in his

penitentiary packet (documents concerning an inmate kept by corrections departments

records office) D challenged the admission of records reflecting his criminal convictions,
booking style ID photo and finger print card.
Issue: Whther the documents could be admitted under 803(6)

Holding: No. The government may not circumvent specific requirements of 803(8) by

seeking to admit public records as business records under 803(6). HOWEVER the
documents are public records of routin and nonadversarial matters that fall within
803(8(A)(ii)
Rules:
33

Notes:

Dallas County v. Commerical Union Assurance Co.

Facts: Clock tower fell into courtroom casuing 100k in damage. D was inurer of

courthouse, disagreement concerning cause of the accident. D tried to bring in evidence of

a fire that happened in 1901 and that the construction phase fire had caused damage to
the clock tower
Issue: Was the newspaper evidence properly admissible to show that the dallas county
courthouse was damaged by a fire in 1901

Holding: Yes. Although the newpaper did not fall under any readily identifiable speacies
of hearsay exceptions it was nonetheless properly admissible because of its necessity,
trustworthiness, relevant and materialness and because the lower court judge has the
discretion to admit it.

Rules:

Notes:
CONFRONTATION CLAUSE

CLASS 17 (Mar. 17): Confrontation Clause Part I

Casebook: 594-646
Problems: 8.1, 8.2, 8.3
Crawford v. Washington
Facts: D stabbed man he claimed tried to rape wife. During trial prosecutors played for

the jury Ds wifes tape recorded statement to the policy describing the stabbing. tape
recorded statement contradicted Ds argument (whether man had drawn a weapon)
because it was pre recorded Crawford could not cross examine.
Issue: Whether the states use of Ds wifes tape recorded statements violated the
confrontation clause?

Holding: Yes. When statements are testimonial in nature, the D must be given the

opportunity to contront the witness. In this case D could not confront his wife due to
marital immunity and thus her statement should have been immune from the prosecution.
Rules: Confrontation Clause

Notes: while there is an exception to hearsay, which says that testimonial statements can

be used against a defendant for impeachment purposes, they cannot be used if the
defendant is not given the opportunity to confront the witness.
*** KEY TAKE AWAY confrontation clause is separate from the hearsay rule and acts as a
check on the prosecution. Under Crawfod v. Washington the whole idea of the confrontation

34

caluse is whether something is testimonial. You can forfeit your confrontation clause rights If
your bad conduct renders the witness absent *****
Post Crawford confrontation clause 617

Davis v. Washington/Hammon v. Indiana to asses whether statements made during

police interrogation are testimonial, trial courts should apply a primary-purpose test
distinguishing between statements aimed primarily to assist a criminal investigation and
those aimed primarily to resolve an ongoing emergency
o Davis hit during the phone call = ongoing emergency

o Hammon after the fact, not considered ongoing emergency so confrontation

clause comes in and the statement may be hearsay if the person does not have the
opportunity to cross examine

Whorton v. Bockting the confrontation clause offers no protection against admission of

nontestimonial statements, even if unreliable

Giles v. California A defendants wrongful conduct forfeits his confrontation right

ONLY IF that conduct made a witness unavailable AND the accused intended to prevent
the witnesss trial testimony

Melendez-Diaz v. Massachusetts A state lab tech s sworn statement declaring a

substance the D possessed to be cocaine is testimonial and therefore inadmissible absent
testimony by the certifying chemist

Michigan v. Bryant A dying gunshot victims answer to police questions about who
shot him were not testimonial because the gunmans unknown motives, intentions and
location created an ongoing emergency

Bullcoming v. New Mexico An analysis of the defendants blood and alcohol contect
certified by an absent state lab tech is testimonial and inadmissible even though another
tech testified about the procedures followed and equipment used in such analyses.

Williams v. Illinois testimony by an expert witness who relies heavily on the lab
report of an absent tech does NOT violte the confrontation clause at least when the author
of the underlying report did not know if the reported results would aid the prosecution.

CLASS 18 (Mar. 19): Confrontation Clause Part II

35

Casebook: 646-94
Problems: 8.4, 8.5, 8.6

HEARSAY AND CONFRONTATION FLOWCHART 675

Page 676 -677
Testimonial Statements
- Solemn declarations made for the purpose of proving some face
- Formalized testimonial materials
Non testimonial statements
- casual and offhand remarks
- coconspirators statements
- some business records
People v. Loy (682)
Dying Declarations a person who tells the police or other witnesses her killers name
arguably
CLASS 19 (Mar. 24): Confrontation Clause Part III
Casebook: 694-734
Problems: 8.8, 8.9
The Bruton Doctrine
Ways to avoid a confrontation clause violation
Severed Trials
Separate Trials
Testimony by the confessing accomplice
Redaction
Bench trial
Admissibility of statement against non-maker
When non of these options applies
Bruton v. United States
Facts: At a joint trial of D and alleged accomplice, the accomplice did not testify but the
gov introduced accomplices oral confession which satted that the accomplice and
defendant had committed robbery. Court of appeals set aside the accomplices conviction
on the grounds that his oral confession should not have been received in evidence against
36

him but upheld conviction cuz lower court told jury confession was inadmissible hearsay
against the defendant and had to be disregarded in determining defendants guilt or
innocent.
Issue: Whether the conviction of a defendant at a joint trial should be set aside although
the jury was instructed that a codefendants confession inculpating the d had to be
disregarded in in determining his guilt or innocence.

Holding: Yes. Despite the limiting instruction the introduction of the accomplices out of

court confession at defendants trial violated defendants 6 th amendment right to cross

examine witnesses against him.
Rules: 6th Amendment.

Notes:

Cruz v. New York

Facts: D challenged an order form court of appeals of NY which affirmed the trial courts
conviction after holding that during a joint trial, the confession of a codefendant was not
required to be excluded because petitionerhimself had confessed and his confession
interlocked with that of his codefendant.

Issue: Was it a violation of Ds 6A right for the ct to allow codefendants videotaped

confession to be admitted into evidence

Holding: Yes. Ds 6a rights were violated by the admission of the codefendants tape
recorded confession, despite the fact that the petitioners own confession interlocked with
co defendant and despit thelimiting instruction given by the trial judge to the jury

Rules: Right to exclude a codefendants confession the confrontation clause bars the

admission of a nontestifying codefendants confession incriminating the defendant at their

joint trial even if the defendants confession is admitted.
Notes:

Gray v. Maryland
Facts: Bell and Gray were tried jointly for murder. Bell refused to testify and his

convfession was entered against him at trial. When confession read instad of Gray it said
deleted
Issue: Whether the confession of one defendant, whether or not it has been redacted to
remove the mention of another defendant, can be used at a trial where both defendants are
being tried.

Holding: Court held that such a confession was damaging to a defendant and would still
lead a jury to suspect that deleted actually meant the other defendant who had not
confessed. To remove just the name of the defendant is just as damning because any
reasonable juror would only have to look up to realize what deleted meant.
37

Rules: A confession of one defendant in a joined case cannot be used against another

Notes:

Chambers v. Mississippi
Facts: D convicted of murder of policeman. Court granted cert to consider whether Ds
trail conducted in accord with principles of due process in light of the trial courts failure to
allow D to cross examine a key witness (McDonald who confessed to 3 people on 3 separate
occasions that he killed the cop but under MS law D cant call and adverse witness) and
the exclusion of evidence by application of state hearsay rule

Issue: Whether MS under state voucher rule can prevent D from cross examining witness.

And whether evidence of witness confessions can be admitted under a hearsay exception
Holding: Court held states voucher rule violated ds constitutional right to due process
specifically the right to confront witnesses. Court held that confession by McDonald fell
under hearsay exception rules and are therefore admissible confessions fall under the
declarations against interest exception.

Rules:

Notes:

Holmes v. South Carolina

Facts: D charged with murder. Attempted to introduce evidence that a third party had

committed the murder, offered witnesses who were prepared to testify BUT under court
rule evidence that another person committed the crime should be excluded if it creates a
bare suspeicion and the acse against the D is strong.
Holding: Ct held that holmes was deprived of his constitutional right to a meaningful
opportunity to present a complete defense held that the rule did not rationally serve the
end that the rule was designed to promote (i.e focus the trial on the central issues by
excluding evidence that ahd only a very weak logical connection to the central issues)

Rules:

Notes:

CLASS 20 (Mar. 26): Lay Opinion

Casebook: 735-48
Rules: 602, 701
Problems: 9.1, 9.2, 9.3, 9.4
United States v. Ganier

38

Facts: Morning trial was to begin D filed motion to exclude the proposed testimony of the
gov computer specialist arguing that it was expert testimony and that the government had
not provided a written summary as required by federal rule of crime pro 16(a)(1)(G).

Issue:

Holding: vacated and remanded because remedies less severe than exclusion were not
given adequate consideration it was vvacated and remanded.

Rules:

Notes:

Five Demands the Law Places on Expert Testimony

Propert Qualifications the witness must be qualified as an expert by knowledge, skill,

experience, training or education [FRE 702]

Proper topic must concern a topic that is beyond the ken of jurors. May not tell the
jurors what result to reach in the case and may not intrude on the judges role as legal
expert [Rules 702(a) and 704]

Sufficient basis expert must have an adequate factual basis for her opinions [FRE
702(b) and 703]

Relevant and reliable methods the experts testimony must the the product of reliable
principles and methods reliabily applied to the facts of the case [FRE 702(c]

Rule 403 Challenge The evidence if challenged must survive a 403 weighing test

CLASS 21 (Mar. 31): Expert Opinion Part I

Casebook: 749-81
Rules: 702, 704
Problems: 9.5, 9.7, 9.9, 9.10
United States v. Johnson
Facts:

Issue:

Holding:

Rules:

Notes:

Jinro America, Inc v. Secure Investments Inc.

Facts: Jinro sued various companies over an international deal for the sale of frozen
chicken that had gone bad. At trial an expert witness testified that Korean companies have
a propensity to deal fraudulently . lower court allowed testimony as expert testimony
under 702
39

Issue: Was it an error for the lower court to allow the appellees private investigator
witness to testify as an expert?

Holding: Yes. The testimony was unrealizable under 702 and unduly prejudicial under

403 and therefore should not have been admitted.

Rules: 702; 403

Notes:

Hygh v. Jacobs
Facts: Plaintiff filed claim against officer municipality and individuals after he was
injured during an arrest. Trial Cox testified as an expert witness and stated that in his
opinion using a flashlight as a weapon greatly increased the risk of physical injury posed

by the use of a baton or night stick and testified that offered had used deadly force not
warranted under the circumstances
Issue: Was the admission of Coxs opinion testimony proper under FRE 704?

Holding: No. the testimony pointed to an ultimate legal conclusion and therefore crossed

the line between admissible opinion testimony and inadmissible testimony. It should have
been excluded.
Rules: 704

Notes: Court reasoned that by testitfying as he did Cox essentially told the jury what
conclusion to reach.

OPINIONS ON CREDIBILITY
State v. Batangan
Facts: D was indicted for rape after his daughter accused him of having sexual contact

with her. D tried twice, at first trial he was acquitted of rape and mistrial at second trial
convicted of sex abuse. At second trial Dr. Bond a clinic psychologist testified that it was
his opinion that victim was believable and that she had been abused by D
Issue: Did the lower court err in admitting Dr. Bonds testimony as expert opinion
testimony

Holding: Yes. Testimony was inadmissible under 702 and clearly prejudicial to D. Expert

testimony may not testify as to the credibility of a witness and Bonds assessment of
credibility may arguably provide
Rules:

Notes:

OPINIONS ON EYE WITNESS TESTIMONY

State v. Guilbert

40

Facts: Jurty found D guilty of capital felony. On appeal the defendant contends that the
trial court improperly precluded him from presenting expert testimony on the fallibility of
eyewitness identification testimony

Issue: Did the trial court err by not allowing the defendant to bring in expert testimony

regarding eye withness identification

Holding: Yes. Ct recognized that expert testimony on the reliability of eye witness IDs do
no invade the province of the juty to determine what weight or effect it wishes to give to
eyewitness testimony. The expert was not giving an opioion just giving information.

Rules:

Notes: CT court held that an expert witness was admissible on the reliability of
eyewitness identification

CLASS 22 (Apr. 2): Expert Opinion Part II

Casebook: 793-817, 837-56
Rules: 703
Problems: 9.15, 9.16
PROPER BASES OF OPINOIN TESTIMONY
Frye v. United States
Facts: D was charged with and put on trial for murder. At trial he attempted to call an
expert witness to testify that D had taken a systolic blood pressure deception test and to
further testitfy as to the results of the test (lie detector) expert testimony was held
inadmissible by lower court.

Issue: Did the lower court err in excluding the expert testimony regarding the lie detector

test?
Holding: No. Test results D attempted to introduce into evidence did not meet the
requirement that such evidence be sufficiently establish to have gained general acceptance
in the particular field in which it belongs and therefore the test results were properly
excluded by the lower court.

Rules:

Notes:

Daubert v. Merrel Dow Pharmaceuticals, Inc

Facts: Minor plaintiffs were injured when their mothers ingested drugs manufactured by

D. According to plaintiff experts the drug cause the baby deformities. However the
majority of the scientic field does not agree that the drug causes limb deformities and the
FDA continues to approve its use in preggo women
Issue: Whether the expert testimony offered by the Plaintiffs is admissible

Holding: Several factors to consider when determining if expert testimony is admissible

41

Whether the theory is general accepted in the scientific community

Whether the theory/method has been subjected to peer review and publication
Whether the theory/method has been test or can be tested
Whether the potential or known rate of error is acceptable
Expert testimony was properly excluded they did not meet the qualificaitons
set forth by 702
Rules:

Notes:

o
o
o
o

The Daubert Trilogy = Daubert, Semrau and Kuba Tire Co.

United States v. Semrau
Facts: D was accused of improperly biling servies to medicare and charged with health
care fraud. At trial he sought to introduce expert testimony of Dr. Laken who had patented
his own version of a lie detection test and had conducted studies in a lab setting to
determin ability to detect lies. District court excluded Laken testimony, D appealed.

Issue: Did the district court abuse its discretion in excluding Dr. Lakens testimony.

Holding: District court did not abuse its discretion in excluding the fMRI evidence under
FRE 702 because the technology had not been fully examined in real world settings and
the testing administered to defendant was not consistent with tests done in research
studies.

Rules:
Notes:

Kumho Tire Company v. Carmichael

Facts: Carmichael was driving van when right tire blew out and passenger of vehicle died.

At trial Carmichaels sought to introduce testimony from a tire failure expert. Expert relied
on features of tire technology that the manufacturer did not dispute as well as background
facts and concluded there was a defect.
Issue: Did the district court err in refusing to admist expert testimony?

Holding: No. Ct had to determine whether the experts methods could reliably determine
what had caused the tire to explode. The issue was that the expect said his inspection of
the tire led to t he conclusion that a defect caused the tired to explore because he did not
see evidence of other causes. NOTHING requires district court to admist opinion evidence
that is connected to existing data only by the statmenet of the expert himself.

Rules:

Notes:

CLASS 23 (Apr. 7): Authentication

42

 Casebook: 894-913
Rules: 901, 902, 903
Problems: 10.1, 10.3, 10.4, 10.6
Proof of Chain of Custody
** Proper authentication demands that the proponent produce sufficient evidence that the jury
could reasonably find by a preponderance of the eivdnece that the exhibit is what its proponent
claims
- most common authentication technique for drugs and other fungible evidence is proof of chain
of custody
Authentixity does NOT mean admissibility.
United States v. Stelmokas
Facts: D was Lithuanian who got citizenship under displaced persons. Citizenship revoked

after found out he was involved in Nazi persecution during WWII . Nazi gov had doc. That
had been stored in archives of former soviet union. There was a gap in the chian of custody
Issue: Did the court err in allowing the ancient documents into evidence even though
there was not a chain of custody.

Holding: The court reaonsed that they wouldnt have tried to destroy them if they were

false. If you wanted to set someone up you wouldnt create documents and hide them for 50
years and hope that someone finds them.
Rules: 901(b)(8) Authentication of ancient documents

Notes:

ANONYMOUS NOTE?

State v. Mitchell anonymous note left for police that led to arrest of defendant was
erroneously admitted at trial. Anoynmous note not admissible as present sense impression
where record is devoid of evidence the author of the note actually saw or heard events
described and it was unclear if the author had opportunity to reflect and fabtricate before
making the statement.

State v. Small
Facts: D convicted of murder. On appeal D alleges that trial court violated hearsay rules
in admitting testimony from Elios concerning statements of the individual calling himself
Dominique. [Dominique was name killer went by, guy on phone had jamacian accent so did
smalls]
43

Issue: Did the trial court err in allowing the testimony from Ellios concering statements
on the phone from an individual named Dominique. And both smalls and the person on
the phone owed Medhin money.

Holding: The party seeking admission must produce direct and cirucumstantial evidence

which reasonably identifies the defendant as a party to a telephone conversation. The

mere fact that the called identified himself as defendant is insufficient r
o Look at (must render it improbable that the caller could be anyone other than the
person the proponent claims him to be)
Contents of the conversation
Characteristics of the speech itself
Cirucmstances of the call
Rules:

Notes: Evidence that a call was made to the number the telephone company assigned at
the time to a particular person can satisfy the authentication requirement, if the
circumstances, including the self identification, show the person answering to be the one
called.

Simms v. Dixon
Facts: P & D were in car accident. Testimonial evidence irreconcilable as to who was at
fault. P attempted to admit into evidence photos of Ps car to show who was at fault. Trial
court refused to admit them UNLESS the person who took the photographs first testitfied
and opposing counsel was able to cross photog could not be found trial court said that
the Ps testimony would not be sufficient to lay proper foundation

Issue: Did the trial court err in excluding the photo?

Holding: Yes. The trial court erred and improperly exercised its discretion as the
photographer was not necessary to lay a dfoundation for the admission of thephotographs

Rules:

Notes: essential test of whether photos are admissible is whether the photos accurately
represent the facts allegedly portrayed in them doesnt require the testimony of
photographer to lay a foundation

Wagner v. State
Facts: Officer and informant bought coke while in car with video camera showing steering

wheel. Informant and vehicle searched prior to operation and no contraband was found. At
trial jury was able to view the video but not permitted to hear the audio of the purchase.
Jury found appellant guilty. D argues that video tape was invalde because there was no
pictoral testimony (officer or infoamnt testifying as to accuracy of incidents portrayed)
Issue: Did the court err in admitting the video tape without any pictoral testimony?
44

Holding: No. video tape was admissible under silent witness theory which allows video
tape evidence so long as there is proof of the reliability of the process that produced the
video tape evidence
o Judge considers
Evidence es. The time and date of photographic evidence
Any evidence of editing or tampering
The operating condition and capability of the equipment producing the
photographic evidence as it relates to the accuracy and reliability of the
photographic product
The procedure employed as it relates to the preparation, testing, operation
and secutiy of the equipment used to produce the photographic product
including the security of the product itself
Testimony identifying the relevant participants depicted in the photographic
evidence.

Rules:

Notes:

CLASS 24 (Apr. 9): Best Evidence Rule

Casebook: 913-28
Rules: 1001, 1002, 1003, 1004
Problems: 10.8, 10.9, 10.10
Best evidence rule law no longer requires that litigants produce the best evidence on any
particular point.
Requirement of original
proof of content
Seiler v. Lucasfilm
Facts: P sued D claiming that certain creatures that appeared in the movie impermissibly

infringed on a copy right of Ps. At trial, lower court applied best evidence rule 1004 and
found that P had lost or destroyed the originals in bad faith and denied admissibility of
any secondary evidence.
Issue: Did the lower court properly exclude secondary evidence of Ps works and therefore
properly grant summary judgment in favor of D

Holding: Yes under best evidence rule 1004, secondary evidence was inadmissible
because P had not shown that the originals were NOT lost or destroyed in bad faith.
45

Rules: Best evidence rule applies to drawings (P tries to claim it isnt best evidence rule
because it isnt a writing, recording or photograph court says nah brah, its best
evidence)

Notes: Ct reasoned that there could be no proof of substantial similarity unless the
works were juxtaposed and the P would have to producethe original OR show that it is
unavailable through no fault of his own which he could not do.

United States v. Jackson

Facts: Internat chat between underage girl and man. D drove to location to meet girl at
park then drove home. Agent participating incov cut and pated them after each session
into another document. Then made a second copy on which he made notes and other
alterations. At time of trial originals were missing, agent didnt have origianls and Ds
computer did not archive convos. Trial court excluded

Issue: Did the trial court err in excluding the cut and paste copy of the conversations?

Holding: No. The government failed to meet its burdern to authenticate the document
the remaining document contained alterations and missing infoamtion and was therefore
not an accurate record of the conversation.

Rules:

Notes: The court would have admitted the evidence had it been saed on the computer and
was the actual computer print out.

PRIVILEGES
CLASS 25 (Apr. 14): Privileges Part I
Casebook: 930-73
Rules: 501 & Proposed Rules 504, 506, 511
Problems: 11.1, 11.2
Jafee v. Redmond
Facts: D responded to a fight at apt complex. D shot Allen believing he was about to stab
the man he was chasing with a nice. P sought access to notes taken by Ds social worker
during sessions. D argued they shouldnt be admitted because of psychotherapist-patient
privilege. Judge allowed it but D and therapist did not comply so judge gave jury
instruction that a refusal to turn over notes could be considered a presumption that the
content of the notes would have been unfavorable to D. Court of appeals over turned.

Issue: Is it appropriate for fed court to recognize psychotherapist privilege under 501?
Holding: Yes. There is a need for the privilege and it is appropriate for fed courts to

recognize psychotherapist privilege under 501 is confirmed by the fact that all 50 states
have enacted into law some form of psychotherapist privilege
46

Rules: 501 includes psychotherapist privilege .

Notes:

In re grand jury subpoena Judith Miller

Facts: New media accounts reported identify of CIA agent. Department of Justice began
investigating if gov employees had violated fed law by disclosing id of CIA agent. Gov
required docs and testimony relating to articles D had written and published concerning
agent. Refused to comply court held them in contempt

Issue: Did the court err in holding them in compet and not recognizing privilege?

Holding: No. Court had preivoulsy rejected the existence of such a privilege (protecting
reporters

Rules:

Notes:

Morales v. Portuondo
Facts: Morales convicted of murder. After trial and before sentencing another person told

a priest the co-Ds mother, petitioners atty and legal aid atty that he and two other
individuals had committed the murder. Ct determined statements by mom an dpetitioners
atty were inadmissible hearsay. Declarant died and priest and legal aid disclosed
declarants statements
Issue: Did the trial court err by not allowing petitioner to introduce evidence that someone
else did it through testimony?

Holding: Yes. Ps due process rights were violated becase he had right to present evidence
of the statements to a jury and trial court imrpoerly exldued statements. Statements
made to the MOTHER and the petitioners attorney were ADMISSIBLE because the
statemetns met the rquirements of the exceptions for declaractions against penal interests.
Statements made to priest and legal aid atty were admissible under the residual
exception

Rules:

Notes: both statmetns bore sufficient indicia of reliability and trustworthiness to make
them admissible.

CLASS 26 (Apr. 16): Privileges Part II

Casebook: 974-1010
Rules: 502 & Proposed Rule 503
Problems: 12.1, 12.2, 12.5, 12.6
Scope of the Lawyer- Client Privilege: The Nature of Legal Services
47

People v. Gionis
Facts: One year after marrying D and wayne had a baby. Wayne left D and took baby
with her. Wayne had D served with divorce papers. D called friend Luec. Who said he was
not coming over as his lawyer making it clear that he would not be willing to have any
involvement as a lawyer for D cuz he knew Wayne and D. D claimed that he could have
Wayne taken care of Lueck testified to Ds statements in court.

Issue: Was it error for the trial court to allow statements made by D to lueck?

Holding: No. The statements made by D to Lueck were NOT privileged as d did not make
statements while trying to retain a lawyer and admission of the statements was not
prejudicial to D.

Rules:

Notes:

Maintaining Confidentiality
Williams v. District of Columbia
Facts: Williams claims that DC retaliated against her in violation of whistleblower
protection act for testimony she provided before DC council. She received a
recommendation to terminate packet by mistake. DC asked for it back but Williams never
responded. Neither party did anything for almost 3 years.

Issue: Whether the district took reasonable steps to protect the information from

inadvertent disclosure and whether the sitrict took reasonable steps to rectify the
inadvertent disclosure once discovered.
Holding: District failed to show it took reasonable steps to prevent the inadvertent
disclosure, district failed to establish that it took reasonable steps to rectify there is no
injustice to denying the district the protections of rule 502(b) the district did not make
reasonable efforts to guard against the disclosure or to rectify its error.

Rules: 503
Notes:

o When made in a federal proceeding the disclosure of communication of information

covered by attorney client privilege or work product does NOT operate as a waiver
in federal or state standing IF:
The disclosure is inadvertent
The holder of the privilege or protection took reasonable steps to prevent
disclosure
The holder promptly took reasonable steps to rectify the error.
*** Take away**** EVERYTHING SHOULD BE SHREDDED
48

Duration of the Privilege

Swidler & Berlin v. United States
Facts: issue arises out of investigation conducted by the office of independent counsel into
whether various individuals made false statements, obstructed justice, or committed other
crimes during investigations. Foster met with Hamilton (atty) to discuss investigation,
Hamilton took notes at the top of which he wrote PRIVILEGED. Foster killed himself. Gov
issues subpoena seeking handwritten notes. P argued that notes were work product and
privileged, court of appeals held that work product privilege did not apply and that ACP
should not necessarily apply after the death of a client

Issue: Does attorney-client privilege apply to the communicaitons mad eby Foster to

Hamilton even though Foster was deceased at the time the subpoena was issues?
Holding: Yes. Attorney-client privilege survives the clients death and applies to the
communications at issue here, even though the information sought here was in connection
with a criminal investigation.

Rules: 502

Notes: Court reasoned that is it generally and universally accepted for well over a
centrury that ACP survives the death of a client.

FAMILIAL PRIVILEGES
CLASS 28 (Apr. 23): Privileges Part IV
Casebook: 1043-76
Rules: Proposed Rule 505
Problems: 13.1, 13.2, 13.3
Spousal Testimonial Privilege
Tilton v. Beecher super old case, wife told husband Beecher made advances at her. Beecher
and Tilton testified wife didnt have to because of spousal privilege
Tramel v. United States
Facts: Otis Trammel indicted for importing Heroin. Idcitment also named his wife as co-

conspirator. Otis wife agreed to cooperate with gov and prior to trial Otic adviset he court
that the gov intended to call his wife as an adverse witness and he asserted his claim to
privilege to prevent her from testifying against him.
Issue: May the accused invoke the privilege against adverse spousal testimony so as to
exclude the voluntary testimony of his wife?

Holding: Rule should be motified so that the witness psoue alone has
49

Rules: FRE 505

Notes: Court discusses the historical privilege against spousal immunity and alters the
rule to permit nonconfidential marital communications to be testified to when the witness
chooses to testify.

TWO MAIN MARITAL PRIVILEGES

Spousal Testimonial Privilege

o Usually takes one of two forms

Most jx, permits witnesses at criminal proceedings to refuse to testify against
their spouses.
In a few jx it permits criminal defendants to prevent their spouses from
testifying against them.
CRITICAL DISTINCTION is whether the witness-spouse or the
defendant-spouse holds the privilege.
Less common form bars spousal testimony unless both spouses consent.
o Some states though not most refuse to recognize the privilege in cases involving
crimes committed jointly by the two spouses.
o Most jx, privilege does not apply in cases in which one spouse is charged with a
crime against the person or property of the other or of a child of either.
Marital confidences privilege
o In traditional form, permits either spouse to refuse to reveal and to prevent the
other from revealing confidential communications made between the spouses during
their marriage.
o In most jx the privilege prevents only communications. It extends to communicative
conduct but not to one spouses observations of the others appearance or non
communicative conduct.
Spousal testimonial

Marital communications

privilege

privilege

Generally only criminal and

only when the prosecution
wishes to call the witness
spouse to testify adverse
against the defendant spouse
(doesnt apply if D wants to
call witness-spouse)

Any type of proceeding, civil

and criminal

Who may assert the

Federal witness spouse is

privilege

the one who may assert the

Either spouse may assert the

privilege

Does it apply in civil,

criminal or both?

50

privilege and decide whether

they are going to testify
against the spouse
some jx where D-spouse has
privilege (like Washington)
Does the privilege surivive

No. But it does cover the

things that happened before
the marriage

Privilege survives the

marriage as long as the
dissolution happened AFTER
the communication

Peace and harmony in the

home

Ability to talk freely between

parties and not have to worry
about what youre saying

when both spouses are

engaged in crime?

Some courts though not most

refuse to recognize the
privilege in cases involving

Almost all fed. courts refuse to

extent the privilege to
communicaiotns concerning
ongoing or future criminal
committed jointly by the
spouses.

Does the privilege apply

No.

No.

There has to be a marriage

There has to be a marriage

the marriage?

What is the rationale for

the privilege?
Does the privilege apply

when one spouse is

charged with an offense

against the other one or
against their children

What is the fundamental

requirements of this
privilege

United States v. Rakes

Facts: D sold liquor store that he owned with wife for must less than reasonable amount.

Gov. alleged that he had been threatened to make the sale. D denied that. Convicted of
perjury, at perjuy trial sought to deny conversations he had with his wife (they are now
divorce) court granted with exception of convo in front of third party.
Issue: Was ct correct to suppress communicaitons between D and wife?

Holding: Yes. Communications at issue were privilege under the spousal privilege and

were not subject to any expcetion

Rules:
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Notes:

A parent child privilege?

In re Grand Jury Proceedings
Facts: Ct considered to cases together DE and Virgin Island.

Issue: Should parent-client privilege be recognized?

Holding: No. Overwhelming majority of federal and state courts have declined to
recognize the privilege. 501 does not support creating the privilege and congress would be
better suited to recognize such a privilege instead of the courts.

Rules:

Notes: The privilege could hurt the parent child relationship if a parent is allowed to
waive privilege because the childs assurances of confidence only exist as long as the
parent chooses.

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