Evidence Fall 2015

Purposes of the Rules of Evidence

I. Rules of Evidence
A. Limit what jury hears
B. Juries are not trusted to discriminate between information
C. Have to create safeguards
II. Purpose of Evidentiary Rules (Focus on Information Flow)
A. Accurately of fact finding
B. Mistrust of jury
C. Serve substantive policies relating to the matter being litigated (burdens
of proof)
D. Serve other societal interests (privileges)
E. Control of trial process
III. How to Enforce the Evidentiary Rules During Trial
A. FRE 103
1. Litigants responsibility to enforce the rules
2. Objections need to be raised in a timely matter and
specific reason as to why it violates a certain rule
3. Judge is not required/normally does not enforce rules;
there, it is the litigant's responsibility to do so

Logical and Legal Relevance

I. FRE 402
A. Relevant evidence is admissible unless any of the following provides
otherwise:
1. US Constitution
2. Federal Statute
3. FRE Rules
4. Other rules prescribed by the Supreme Court
B. Irrelevant evidence is not admissible
II. FRE 401
A. Evidence is Relevant if:
1. It has any tendency to make a fact more probable than it
would be without the evidence (probative); AND
2. The fact is of consequence in determining the action
(material)
B. Intended to be an advisory rule
III. Components of FRE 401
A. Probative:
1. Must have tendency to make the existence of the fact
more probable or less probable than it would be without the evidence
B. Materiality:
1. Have to know the elements of the offense, to determine
whether the evidence is material; CANNOT ignore substantive underlying law
2. Does it bear of a fact of consequence to the
determination of the action?
a) often depends on substantive law
IV. Standard of FRE 401
A. Standard is very low
 B. It just has to show that there is ANY tendency that it is more likely to
occur than to not occur
C. ANY TENDENCY standard a little something; piece of
information; brick is not a wall
V. FRE 401 Questions
A. What is the evidence being introduced?
B. What is the purpose of the evidence?
C. Why does proof of that issue matter, legally/factually?
D. What is the connection between the evidence and legal/factual issue?

Legal Relevance
I. FRE 403
A. Language
1. The court may exclude relevant evidence if its probative
value is substantially outweighed by a danger of one or more of the following:
unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting
time, or needlessly presenting cumulative evidence
B. Decisions on whether to exclude evidence is based on the trial courts
discretion
1. On appeal the review is whether there was an abuse of
discretion
a) Rare that judges overturn trial judges
discretion
C. Referred to as a balancing test:
1. The assumption that it operates under is that the
evidence comes in (allowed)
a) Not 50/50 rule; starts with the idea that
the relevant evidence should come in trial unless real SUBSTANTIAL
risk of prejudice
II. Key Provisions of FRE 403
A. Court may exclude relevant evidence - permissible rule
B. Probative value is substantially outweighed
1. Balancing test
2. Assumption evidence comes in
C. Unfair prejudice
1. Jury has to decide the case on its facts not on emotions
III. Consider
A. Are there other ways in which the information can be taken to the jury
without it being so prejudicial to the defendant? (less prejudicial ways to get the
information in)
B. How else can the persecution get the information in?
C. Old Chief =
1. alternative ways to get evidence in even without
stipulations
IV. FRE 105
A. If court admits evidence that is admissible against a party for one
purpose - but not against another purpose - the court on timely request, must restrict the
evidence to its proper scope and instruct the jury accordingly
1. If a judge is faced with evidence that serves both a
legitimate and illegitimate purpose she can let it in and then provide a limiting
instruction
 2. Limiting instruction:
a) You can consider this evidence for X but
not for Y
b) Judge is inclined to give limiting
instructions
c) Focus on the permissible aspect not the
impermissible

Special Relevance Rules

I. Ways to Interpret FRE 407 - 411
A. They reflect the rule-maker's judgment about how FRE 403 analysis
should come out
B. They are unnecessary and redundant, since FRE 403 should lead to the
same result
II. Structure of the Rules
A. FRE 407- 411
1. 407, 408, 409, 411 are rules of limited exclusion: they
exclude evidence for specific reasons but allow for all other purposes
2. 410 is rule of expansive exclusion: excluded plea
discussions for all purposes but two
III. FRE 407 - Subsequent Remedial Measures
A. When measures are taken that would have made an earlier injury or harm
less likely to occur, evidence of subsequent measures is not admissible to prove:
1. negligence
2. culpable conduct
3. a defect in product or design
4. a need for a warning or instruction
B. But the court may admit this evidence for another purpose, such as
impeachment or - if disputed ownership, control or feasibility, or precautionary measures
IV. FRE 408 - Compromise Offers and Negotiations
A. This rule applies to both parties
B. It is a broad prohibition that doesnt offer protection before a claim; cant
be used to impeach
C. From a policy standard, we want people to settle and not to go trial; in
essence, we want a system that encourages settlement
D. Without this policy, there would be a disincentive to enter negotiations or
talk about settlement
E. Doctors and saying Im sorry: this usually occurs before a claim is filed
and thats why they dont say it
V. FRE 409 - Offers to Pay Medical and Similar Expenses
A. Under the same breath of FRE 408
B. We want a system that encourages settlement
C. The offer could be given out of kindness and not due to guilt/fault
D. Contrary to FRe 408, FRE 409 does not extend to conduct or statements
not part of the act of furnishing or offering or promising to pay
VI. FRE 410- Pleas, Plea Discussions and Related Statements
A. Broad in protections but ONLY protects the defendant
B. Policy reasons: relevancy reasons for innocent people to plead; financial
considerations; want prosecution and defense to speak openly (efficiency)
1. keeping in mind the vast majority of criminal cases settle
C. Statements from plea negotiations cannot be used to impeach
 VII. FRE 411 - Liability Insurance
A. Evidence of an individuals actual/lack of insurance is not admissible but
it can be entered into evidence for another purpose such as proving witness bias or
prejudice or proving agency, ownership or control
1. Generally speaking, juries are more likely to rule
positively for a plaintiff when the defendant has insurance
B. The rule only prohibits proof of insurance when proving negligence
1. Can use it for anything else
2. The rule would not prohibit questioning

Character, Propensity and, Non-Character Theories of Admissibility

I. Character Evidence Generally
A. Can have a predictive quality; tells us what someone will do when
nobodys watching
1. Not to the extent of habit
B. It also shows us what kind of person someone really is
C. Ask friends and family
D. Test:
1. FRE 404 first
2. Then FRE 405
E. Two ways character questions arise:
1. Character in issue = may be element of crime, claim
or/and defense
2. Circumstantial = suggesting an inference that the
person acted consistently with that character trait
II. Language of FRE 404(a)(1)
A. Prohibit Uses. Evidence of a persons character or character trial is not
admissible to prove that on a particular occasion the person acted in accordance with the
character or trait (note that the concern is about propensity)
1. Essentially says you cannot use character evidence to
prove propensity
2. Have to find a way to go around the propensity box
III. Rationale for FRE 404(a)(1):
A. Character evidence is slight probative value and may be very
prejudicial. It tends to distract the trier of fact from the main question of what actually
happened on the particular occasion. It subtly permits the trier of fact to reward the good
man and to punish the bad man because of their respective characters despite what the
evidence in the case shows actually happened.

Other Non-Character Theories of Admissibility

I. Language of FRE 404(b)
A. Prohibited Uses. Evidence of a crime, wrong or other act is not
admissible to prove a persons character in order to show that on a particular occasion the
person acted in accordance with the character
B. Permitted Uses (with notice in a criminal case). This evidence may
[401/403 analysis] be admissible for [any other] another purpose such as proving
motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or
lack of accident.
1. Not an exclusive list; by way of examples
2. Not exceptions instead they are non-character evidence
II. 3 Step -Analysis FRE 404(b)
 A. Sufficient evidence that prior incident occurred? How much is needed?
(Preponderance of evidence)
B. What purpose is the evidence offered for? Is the purpose proper and is
this evidence relevant?
C. Probative worth vs. unfair prejudice
III. Compare FRE 404(a)(1).404(b)(1) and 404(b)(2)
A. FRE 404(b) is NOT an exception to character rule 404(a)(1).
B. FRE 404(b)(1) simply lists prohibited used
C. FRE 404(b)(2) can be used in either criminal or civil case and is not an
exhaustive list: ultimately may let evidence in for another purpose
1. Addition ones are doctrine chances and res gesta
IV. Things to Remember with FRE 404(b)
A. Not an exhaustive List
B. Includes other crimes, wrongs, or acts- does not have to be crime
1. does not have to be similar to the charged offense
depending on relevance of the evidence
C. There are notice requirements in the criminal context
D. Both sides can suffer unfair prejudice but unfair prejudice to the
government is less likely
E. Often used by the prosecution in rebuttal or to blunt a suspect claim by
the defense
F. Can include incidents ex post facto
V. Identity/ Modus Operandi (M.O.)
A. Modus Operandi General
1. Formula
a) Detailed evidence of distinctive
crime +
b) Evidence that defendant
committed other similarity distinctive crime +
c) More likely that defendant commits
distinctive crimes =
d) Past behavior so distinctive that no one
else could have committed it
2. Unique crime
a) In totality of circumstances
B. Other Routes Around the Propensity Box
1. Narrative integrity (res gestae): more of a story needed
a) It is part of the event
b) Helps explain the story
2. Absence of mistake/ Lack of accident
3. Unique Circumstance
a) Event so out of ordinary

Propensity Evidence in Sexual Assault Cases

I. Sexual assault cases ARE 404(b) exceptions
II. Evidence of Similar Crimes in [FRE 4.13 Sexual Assault] and [4.14 Child-Molestation]
Cases
A. In a criminal case in which a defendant is accused of a sexual assault,
child molestation, the court may admit evidence that the defendant committed any other
sexual assault. The evidence may be considered on any matter to which it is relevant
1. Allows for propensity evidence
 B. Policy Reasons:
1. Recidivism (makes the propensity argument stronger)
2. Makes the case easier for prosecution
a) Lowering the standard of proof that is
needed to prove
3. Unique vulnerability of victim credibility
C. What Happens at trial factually when you have that prior sexual assault?
1. Committed suggest that it should be an official
response to this incident
2. Evidence is subjected to FRE 403 balancing test
a) How does 403 balance work?
(1) Questions to decide?
(a) Other
alternatives to prove this/ how badly do you need this
evidence
(b) Freque
ncy; need; similarity of crime; other evidence; closeness
in time
III. FRE 412 (Rape-Shield Rule + Creates the rule of Super Relevancy)
A. Common Pre-Rape Shield Law Instruction
1. In a prosecution for a sexual offense in which lack of
consent is an element, any evidence, otherwise competent, tending to show the
unchaste character of the alleged victim is admissible on the issue of the
probability of consent by the alleged victim to the act charged (whether or not
the alleged victim has testified as witness) and on the question of the credibility
of the alleged victim, and this is so whether or not there was conviction of any
offense involved
a) Issue is that evidence could be used as
relevant to consent
b) Credibility as well based on prior
activity
c) In broad terms, the truthfulness of
consent doesnt really fit 401
d) Concern of this is of a likelihood of a
victim would not come forward
B. Prohibited Uses
1. The following evidence is not admissible in a civil or
criminal proceeding involving alleged sexual misconduct:
a) Evidence offered to prove that a victim
engaged in other sexual behavior; OR
b) Evidence offered to prove a victims
sexual predisposition
2. Language is very broad mode of dress
3. Shield the victim and relevancy argument
rule of super relevancy
C. Exceptions
1. Criminal Cases:
a) Can be offered to show someone else
b) Consent in the past with defendant
admissible
 c) Violate defendants constitutional rights
(ex. when victim in past untruthful about rape/false reporting)
(1) Has a right to put on a
defense
(2) Another example:
(a) a
prostitute claimed rape when solicitor wouldnt pay
IV. FRE 412(b)(2) Civil Case
A. balancing test

Character Evidence in Criminal Cases and Habit Evidence

I. FRE 404(a)(2)(A)
A. Character Evidence
B. Exceptions for a defendant or victim in a criminal case. The following
exceptions in CRIMINAL CASES:
1. A defendant may offer evidence of the defendants
pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence
to rebut it
a) defendant can open the door to his own
character trait
C. Character Trait of the Accused
1. Accused holds the key
2. Pertinent character trait
3. Once the door is open the prosecutor can rebut with
contrary character evidence
II. FRE 404(a)(1)(b) and (c)
A. Language
1. (2) Exceptions are for a Defendant and Victim in a
criminal case
a) (b) subject to Rule 412 limitations, a
defendant may offer evidence of a victims pertinent trait and if admitted,
the prosecutor may:
(1) offer the evidence to
rebut and
(2) offer evidence of the
defendants same trait
b) (c) Prosecutor can offer victims
peacefulness in a homicide case to rebut evidence that the victim was the
first aggressor
B. Character of the Victim
1. Accused holds the key
2. Pertinent character trait of the victim
3. Victims character in homicide case

Methods of Impeachment and Impeachment with Character

I. FRE 405(a) A Rule About Method of Proof Not Admissibility
A. Language
1. By Reputation or Opinion (governing methods of proof;
does not talk about whether evidence is admissible)
a) By Reputation or Opinion
 (1) when evidence of a
persons character or character trait is admissible, it may be
proved by testimony about the persons reputation or by
testimony in the form of an opinion. On cross-examination of
the character witness, the court may allow an inquiry into
relevant specific instances of the persons conduct
B. General
1. All of these are testimony either by reputation or opinion
a) reputation is practically hearsay; opinion
is based on witness knowledge
2. Reputation/opinion (how do it)
3. On cross, can go to specific instances (used for how well
witness knows defendant)
C. Opinion Testimony
1. Witness knows the accused/victim
2. Witness has sufficient contact to form an opinion
3. Witness has an opinion of the accused/victims character
4. Witness state that opinion: V is a belligerent, fight-
picking fellow with a real short fuse
D. Reputation Testimony
1. Witness is a member of the accused/victims community
2. Witness has been a member for a substantial time
3. Accused/victim has a reputation
4. Witness knows Reputation
5. Witness states reputation: V is known in the workplace
as a belligerent person and people think he is aggressive
II. FRE 405(a) Specific Instances on Cross
A. Only thing you can ask a witness about is the trait they something about
B. Form: Do you know? Have you heard?
1. reason; going to knowledge/reputation; only asking 1
reason: to test witness knowledge
C. Specific instances must relate to the character trait being discussed
D. Good faith basis:
1. an arrest doesnt equal a conviction/wrongdoing
2. court will se arrest differently but you need some sort of
proof it occurred
E. Stuck with answer: if not, would really confuse issues
F. No guilt assuming questions (of the crime currently being charged with)
III. FRE 405(b) - Methods of Proving Character: By Specific Instances
A. Language
1. When the person's character or character trait is an
essential element of a charge, claim, or defense, the character or character trait
may also be proved by relevant specific instances of the persons conduct

B. When It Arises:
1. Civil = defamation, negligent entrustment, good
parenting
2. Criminal = entrapment but very rare otherwise
C. Most of the confusion stems from an overly broad conception of what it
means for a character trait to be an essential element of a charge, claim, or defense
IV. FRE 406: Habit; Routine Practice
 A. Witness does not need to have knowledge of the specific instance; non-
thinking, automatic, predictive conduct
1. Regular drinking NOT a habit; only occasionally
admitted
B. Doesnt apply much in criminal context; more likely to be used in civil
case

Impeachment with Prior Convictions and Inconsistent Statements

I. What is Witness Impeachment?
A. Trying to make the jury not believe the witness; show that they arent
credible
B. Method of attacking a witness; comes up mostly in cross-examination
(regular context)
II. How to Impeach?
A. Prior statements (inconsistent)
B. Prior convictions
C. Lapse in memory
1. Observe, recall or relate (ORR)
D. Bias (commonly used form of impeachment)
E. Character (question have to ask is character for what
character for untruthfulness (only one we can talk about) )
III. Nonspecific Impeachment
A. Impeachment mechanisms suggest reasons to doubt the witness but not a
direct attack on any particular point of the witness testimoney
B. Bias of influence (youre lying)
1. No rules on bias/capacity in FRE
2. Only to consider is 401 and 403 (those are
the rules that govern bias evidence)
3. Few Good Men example: witness has an interest in the
outcome.
4. Suggesting that by giving a clean bill of health and he
died from a heart attack it would be on him
5. His reputation would be at stake shows
that he has an interest in the outcome
C. Defect in Capacity of the Witness
1. My Cousin Vinny example: cook wrong on this occasion
2. Show that he is wrong
3. ORR/dont have to say why he is wrong can just SHOW
4. They are the way they are and dont believe them
D. Untruthful Character of the Witness (Youre a Liar)
1. Character witnesses (FRE 608)
2. Cross examination into non-conviction misconduct
related to character for untruthfulness (FRE 608)
3. Cross examination into certain criminal convictions
(FRE 609)
IV. Specific Impeachment
A. Attacks a particular point in the testimony of the witness but dont
provide reasons for those shortcomings
1. Prior inconsistent statement (FRE 613) (youre lying and
youre a liar)
a) FRE 613 witnesss prior statement
 b) Showing or disclosing the statement
during examination
2. Extrinsic evidence of a prior inconsistent statement
3. Contradiction (youre lying and maybe youre lair)
V. FRE 404(a)(3)
A. Language
1. (a) Character evidence
a) (1) Prohibited uses. Evidence of a
persons character or character trait is not admissible to prove that on a
particular occasion the person acted in accordance with the character or
trait
b) (3) Exceptions for a witness. Evidence
of a witness character may be admitted under rules 607, 608, 609
(1) How is this broader:
(a) No
limitation to civil/criminal; applies in all cases
(b) Does
not matter what party opens the door
(c) Any
character witness; for a witness or a defendant
(i)
a
nytime any person, criminal or civil, any time a
witness gets on the stand they put one-character
trait at issue just by testifying
(2) How is it narrower:
(a) Only
puts character truthfulness at issue
VI. FRE 607 - Who May Impeach a Witness
A. anybody/defendant or plaintiff can impeach a witness
VII. FRE 608(a) A Witnesss Character for Truthfulness or Untruthfulness (a) Reputation or
Opinion
A. The window of truthfulness opened as soon as a witness is put on the
stand
B. To counter attack, can bring own witness
C. However, one cannot bolster: ergo, bringing a witness to bolster
truthfulness prior to truthfulness being attacked
VIII. FRE 608(b)
A. Language of the Rule
1. Except for a criminal conviction under Rule 609,
extrinsic evidence [narrow sense/anything else other than a witness testimony] is
not admissible to prove specific instances of a witnesss conduct in order to
attack or support the witnesss character for truthfulness. But the court may, on
cross-examination, allow them to be inquired into if they are probative of the
character for truthfulness or untruthfulness of:
a) the witness; or
b) another witness whose character the
witness being cross-examination has testified about
(1) **** 608(b)(2) = for
witness
 (2) **** 405 = for
defendant
B. Limitations: can cross-examine a witness, but youre struck with the
answer
1. Judges discretion
2. Cross-examination only
3. Focus only on character trait of veracity
4. Bound by the answer
C. Theft wouldnt work but embezzlement would
D. Questioning must be in good faith
IX. FRE 609 - Impeachment by Conviction
A. Rule 609 permits impeaching a witness, including the defendant, with
evidence of a felony conviction, or with evidence of any conviction involving dishonesty
or a false statement, so long as conviction is less than 10 years old
B. Five factors to keep in mind:
1. The nature of the crime
2. The time of conviction and the witness subsequent
history
3. Similarity between the past crime and the charged crime
4. Importance of defendants testimony
5. The centrality of the credibility issue
X. FRE 609(a)(1)
A. Language
1. (a) In General. The following rules apply to attacking a
witnesss character for truthfulness by evidence of a criminal conviction:
a) (1) for a crime that, in the convicting
jurisdiction for more than one year, the evidence:
(1) (a)must be admitted,
subject to Rule 403, in a civil case or in a criminal case in which
the witness is not a defendant; and
(a) *
presumption in favor admissibility
(2) (b) must be admitted in
a criminal case in which the witness is a defendant, if the
probative value of the evidence outweighs its prejudicial effect to
that defendant;
(a) *403
balancing
XI. FRE 609(a)(2)
A. Language
1. (a)General rule. For the purpose for attacking the
character for truthfulness of a witness.
2. For any crime regardless of punishment, the evidence
must be admitted if the court can readily determine that establishing the elements
of the crime require proving - or the witnesss admitting - a dishonest act or false
statement (403 DOES NOT APPLY)
a) looks at character/nature/crimes of
dishonesty
b) if one of those than they have to let it in
 c) Figure out if there is a crime of
dishonesty because if it is than it is allowed and the analysis stops there
HOWEVER if it is not than have to look at 609(a)(1)
XII. FRE 609(b) - 10 Year Rule
A. Language
1. (b) Limit on Using the Evidence After 10 Years. This
subdivision (b) applies if more than 10 years have passed since the witnesss
conviction or release from confinement for it, whichever is later Evidence if:
2. The conviction is admissible only if:
a) its probative value, supported by
specific facts and circumstances, substantially outweighs its prejudicial
effect; and
b) the proponent gives an adverse party
reasonable written notice of the intent to use it so that the party has a fair
opportunity to consent to use
XIII. FRE 613 Impeachment by Prior Consistent Statements (* important for hearsay*)
A. If he said a on day 1 and b on day 2, how can be trusted (613(b))
B. No notice requirement (613(A))
C. Can always call cop or obtain other extrinsic evidence
D. If you are going to do it, this is what you have to do = method of proof
(this is how you can do it)

Hearsay Definitions
I. Hearsay Overview
A. Problem with I didnt hear it is that he doesn't have direct knowledge,
cannot rely on his personal perceptions
B. Problem with hearsay is that we cannot test the person who saw/heard
the original event (this person is the declarant)
C. Do not have the person who has the knowledge therefore cannot test
them
II. FRE 801(a) - (c) Definitions that Apply to this Article
A. Language
1. (a) Statement. Statement means a persons oral
assertion, written assertion or nonverbal conduct, if the person intended is an
assertion
a) needs to be from a person
b) from an animal is not hearsay;
machines, like animals, are not hearsay
c) e-mails, would be hearsay
2. (b) Declarant. Declarant means the person who made
the statement
3. (c) Hearsay. Hearsay means a statement that:
a) The declarant does not make while
testifying at the current trial or hearing; OR
b) A party offers in evidence to prove the
truth of the matter asserted in the statement
III. ShortHand Definition
A. Out of court statement, offered to prove the matter asserted in the
statement by the declarant
B. What are key issues:
1. KEY Issues:
 a) statement intended to assert something
b) statement was not made in the
courtroom
c) being used at trial to prove a material
fact of the case
d) offered AT TRIAL to prove that the trust
of the matter asserted IN THE STATEMENT
IV. Three Tools to Find the Truth (mechanisms for this trial)
A. Whether the statement is made under oath
B. Observing the demeanor of the witness
C. Cross-Examination (viewed as the important tool to assess truthfulness)
V. States that are offered at trial can be used to prove different things:
A. Another purpose (we dont care whether the statement is true or false but
offering it for another reason) than the truth of the matter asserted than NOT HEARSAY
1. offer for an effect on the listener
VI. What is the Statement Offered to Prove?
A. However, there are some instances where the statement goes beyond
communicating the declarants thoughts about the world. In some instances, the statement
may have behavioral or performance qualities that are significant in revealing
information about declarants state of mind, and the declarants state of mind is relevant
to an issue at trial.
1. In these instances the statement by be relevant
VII. Two Overriding Questions
A. Is the litigant offering the statement to prove the truth of what the
statement says or was meant to say?
B. Did the declarant assert or mean to communicate that fact?
VIII. Hearsay Checklist
A. Is there a statement?
B. Is it an assertion?
C. What is it trying to assert?
D. Was the statement made in court or out of court (some other time)
E. What is the statement being offered for?
1. If the statement is being offered for the truth of the
matter asserted in the statement
a) HEARSAY
2. If the statement is being offered for another purpose
other than the truth asserted in the statement
a) NOT HEARSAY
F. If it is hearsay, do any exceptions apply?

Non-Hearsay uses of Out of Court Statements

I. General
A. Words offered to prove their effect on their listener
1. language offered to prove the defendant had reason to
fear an attack
2. basically, language made for the truth of the matter
asserted
B. Legally operative words (verbal acts)
1. such legally operative words are verbal acts because they
have legal force independent of the speakers intended meaning (ex. I accept,
I do)
 2. These statements operate independently of the speakers
belief or intended meaning. The soundness of testimonial capacities therefore
doesnt matter, so there is no reason to exclude the words as hearsay
3. Legally operative language is offered for what it does,
not what it says. It is deemed not to be offered for the truth of the matter asserted
because it is not offered as an assertion. It does not matter that there is an overlap
between the content of the utterance and the matter sought to be proven, so long
as the utterance is legally operative language.
C. To impeach the declarants later, in-court testimony
D. Need to take into account FRE 613
II. The Nature of Assertions
A. There is a distinction between hearsay/non-hearsay
B. Conduct
1. clearly assertive
2. sincerity is extremely important regarding assertions
C. Focus on Context
1. when trying to determine if something is an assertion,
have to ask could this conduct be a lie
2. the burden is on the party claiming assertion
3. close cases should lean towards admissibility
D. Words
1. most oral/written expressions are assertive dont run
that stop sign
2. however, close the door is ambiguous
a) depends on context
E. Implied assertions
1. intends to communicate those facts by implication
2. no reason to distinguish sharply between express and
implied assertions
a) sometimes implied assertions is
mistakenly used
F. Indirect assertions
1. sometimes the matter asserted is just one link in a chain
of inferences leading to the ultimate fact to be proved
2. can use statements to prove something other than what it
asserts
III. Non-hearsay Use of Out-of-Court Statements
A. Nonassertive words
B. Words offered to prove something other than what they assert
C. Assertions offered as Circumstantial Proof of Knowledge
1. Nonassertive words
a) Ouch!
2. Words offered to prove something other than what they
assert
a) Sometimes, a lawyer offers the
declarants words to prove something other than what the declarant
intended to communicate. Here the lawyers claim does not depend on
the trust of the declarants assertion.
3. Assertions offered as Circumstantial Proof of
Knowledge
 a) Close correspondence between what a
description was and was it actually was.

Hearsay Exceptions
I. Five Categories of Hearsay Exceptions
A. Prior Statement by witnesses (801(d)(1))
B. Statements by Party-Opponents (801(d)(2))
C. Declarants Availability Immaterial (803)
D. Declarant Unavailable (804)
E. Residual Exception (807)
II. Three Primary Reasons for Hearsay Exceptions
A. The out of court statements are sufficiently trustworthy and that making
them come into court is unnecessary
B. We need the evidence, hearsay is better than no say
C. Fairness in the proceeding
D. Two values:
1. necessity and trustworthiness
III. Statements by Party Opponents FRE 801(d)(2)
A. The statement is offered against an opposing party and:
1. (A) was made by the party in an individual or
representative capacity
a) Rationale:
(1) its the adversarial
environment; therefore it is fair game as long as its relevant
(2) any statements you
make you have to live with
(3) likely to be more
truthful; wouldnt lie
(4) some of the hearsay
concerns dont apply
(5) Broad rule - no personal
knowledge of statements made
b) If he has a representative capacity and
the statement is offered against him in that capacity, no inquiry whether
he was acting in the representative capacity in making the statement is
required; the statement need only be relevant to representative affairs
2. (B) Adopted admissions/statements (the party
manifested that it adopted or believed to be true)
a) Doyle Holding = after someone is given
Miranda, if they are silent, that cannot be used against them
b) Silence Rationale
(1) when silence is relied
upon, the theory is that the person would, under the
circumstances, protest the statement made in his presence, if it
was untrue
(2) civil cases:
(a) the
results have been satisfactory
(3) criminal cases:
(a) troubles
ome questions by failing to deny an admission, however,
 the rule contains no special provisions concerning failure
to deny in criminal case
c) Requirements
(1) that the party against
whom the statement is being offered heard the statement
(2) that the party could
have responded
(3) that the circumstances
naturally called for a response
(4) that the party failed to
respond or deny (or responded but did not rebut)
3. (C) Speaking Agents (made by a person whom the
party authorized to make a statement on the subject)
a) General
(1) *****The statement
must be considered but does not by itself establish the declarants
authority ******
(2) Broad based rule
(3) Communication to an
outsider hasnt generally been thought to be an essential
characteristic of an admission
b) Looking for in this exception:
(1) What was the
relationship? (was there an agency relationship = most common)
(2) What is the source of
the relationship and whether person is speaking on behalf of that
person?
4. (D) Made by the partys agent or employee on a
matter within the scope of that relationship and while it existed
a) General
(1) **** The statement
must be considered but does not by itself establish the existence
or scope of the relationship **
(2) Usually, based on the
basis of an employment relationship
(3) Can be both broader
and narrower than 801(d)(2)(C)
b) Why should the statements be binding:
(1) Knowledge
(2) The employees will
have the best information that is needed to make that
assertion/truthful on the matter asserted
5. (E) Co-conspiracy (made by the partys
coconspirator during and in furtherance of the conspiracy)
a) ***The statement must be considered
but does not by itself establish the existence of the conspiracy or
participation in it
b) Elements of Co-Conspirator Statements
(1) Must prove that the
parties conspired (example = the existence of the conspiracy)
(Coventurer requirement)
 (2) Statement made during
the conspiracy (Pendency requirement)
(3) Made in furtherance of
the conspiracy (Furtherance requirement)
(a) *
Standard that must be met = preponderance of the
evidence
c) ***The limitation upon the admissibility
of statements of co-conspirators to those made during the course and in
furtherance of the conspiracy is in the accepted pattern.
IV. FRE 805 (Double Hearsay)
A. Hearsay within hearsay is not excluded by the rule against hearsay if
each part of the combined statements conforms with an exception to the rule
1. Follow the bouncing ball
2. Exception(s) has to apply to each hearsay; both have to
be satisfied

Hearsay Exceptions Based on Deferred Cross-Examination

I. Declarant-Witnesss Prior Statement FRE 801(d)(1)
A. A statement that meets the following conditions is not hearsay:
1. The declarant testifies and is subject to cross-
examination about a prior statement and the statement:
a) is inconsistent with the declarants
testimony and was given under penalty of perjury at a trial, hearing, or
other proceeding or in a deposition
(1) very narrow/limited
exception
(2) conditions
(a) inconsi
stent with the in court testimony (need this to trigger
impeachment)
(i)
T
he other proceeding is a grand jury proceeding
defendants attorneys would not be allowed in
but could be; these are typically prosecutor run.
(b) out of
court statement was given under oath subject to the
penalty or perjury at a prior trial, prior hearing or other
proceeding deposition
(i)
n
o requirement for prior cross-examination
b) is consistent with the declarants
testimony it is offered to rebut an express or implied charge that the
declarant recently fabricated it or acted from a recent improper influence
or motive in so testifying; or
(1) Rebuts an express or
implied charge of:
(a) recent
fabrication
 (b) improp
er influence
(c) improp
er motive
(d) rehabili
tate the declarants credibility as a witness
(e) (purpos
e is to rebut not bolster)
(2) TIMELINE NEEDED
(a) timing
of when motive established is the critical issue
(b) if
motive was established before the prior statement, it
would be problematic. However, if after the prior
statement, better chance to get in
c) identifies a person as someone the
declarant perceived earlier
(1) What the rule does:
(a) it
allows the declarant to refer back to a prior statement
(i)
o
ut of court statement would be more reliable
than an in court statement
II. Preliminary Requirements of 801(d)(1)
A. The declarant testifies at the present trial or hearing and is now subject to
cross-examination concerning the prior out of court statement, and the prior out of court
statement is
1. Declarant must be testifying in court now about a
statement they made out of court
2. Declarant must now be subject to cross-examination
about the out of court statement

Hearsay Exceptions Based on Declarants Unavailability

I. FRE 804 Declarants Unavailability (restricted)
A. FRE 804(a) - Criteria for unavailability (does not apply if the statements
proponent procured or wrongfully caused the declarants unavailability as a witness in
order to prevent the declarant from attending or testifying
1. Exemption (Court needs to find/rule that privilege
applies)
a) self-incrimination; spousal; attorney
-client relationship
b) need to go to state to see specific
privileges
c) witness usually has to go to the stand to
assert; except the defendant when asserting their 5th Amendment right
2. Refuses to testify despite a court order
3. Testifies as not remembering the subject matter
a) specifically, the substance
4. Because of death, mental illness, some other physical or
mental infirmity
 a) fact dependent
5. Absent and cannot be found
a) need to show exhaustive legal efforts
were made
6. General =
a) preliminary decisions the court makes
b) if it does not meet these 6 requirements
than they are not unavailable for the purposes of this rule; NARROW
rule
c) THE VERY FIRST QUESTION
UNDER AN 804 ANALYSIS IS WHETHER THE WITNESS IS
AVAILABLE. IF THE WITNESS IS AVAILABLE, THEN GET
OUT OF HERE!
B. FRE 804(B) - Exceptions (declarant has to be unavailable)
1. 1) Former Testimony
a) Language:
(1) (A) was given as a
witness at a trial, hearing, or lawful deposition, whether given
during the current proceeding or a different one; and
(2) (b) is now offered
against a party who had or, in a civil case, whose predecessor
in interest had an opportunity and similar motive to develop it
by direct, cross-, or redirect examination.
b) Elements:
(1) Testimony given at
former hearing
(2) Under oath
(3) Party against whom the
statement is now being offered had an opportunity to question
the declarant at that hearing
(4) Substantial Identity of
issue between the two hearings
(5) Substantial identity of
parties
c) If witness says one thing at 1st trial,
want to bring in the court document/transcript:
(1) Dealing with two levels
of hearsay; the prior statement and the court document/transcript
2. 2) Statement Under the Belief of Imminent Death
a) Language
(1) In a prosecution for
homicide or in a civil case a statement that the declarant, while
believing the declarants death to be imminent, made about its
cause or circumstances
(a) Death
does not have to be the result, there just needs to be a
belief that death is imminent when the statement was
made
b) Elements:
(1) Criminal homicide case
or civil case
 (2) Declarant is the victim
(3) Declarant has the belief
in impending death
(a) loomin
g, threatening, menacing
(4) Statement relates to the
cause or circumstances of the believes
c) Death does not have to be the result; just
need to believe that death is imminent when the statement was made
3. 3) Statements Against Interest
a) Language
(1) (A) a reasonable person
in the declarants position would have made only if the person
believed it to be true because, when made, it was so contrary to
the declarants proprietary or pecuniary interest or had so great a
tendency to invalidate the declarants claim against someone else
or to expose the declarant to civil or criminal liability; and
(2) (B) is supported by
corroborating circumstances that clearly indicate its
trustworthiness, if it is offered in a criminal case as one that
tends to expose the declarant to criminal liability
b) Elements (appears to be narrow rule) +
(Do not confuse with 801(d)(2)(A))
(1) Declarant believed that
the statement was against his interests
(2) The interest is one
covered in this rule
(a) Pecunia
ry
(b) Propert
y
(c) Penal
(d) Civil
liability
(3) Declarant unavailable at
trial
(4) If it is offered in a
criminal case as one that tends to expose the declarant to
criminal liability, there must be corroborating evidence
c) Williamson v. U.S.
(1) ***keep in mind, a
potential confrontation clause issue here as well***
(2) Facts: Harris pulled
over; refuses to testify w/ respect to Williamsons story. Harris
gave true story eventually and directly implicates Williamson.
Harris, in essence, saying he was guilty of transporting cocaine.
(a) His
primary motivation was to shift burden.
(b) Seems
like 804(b)(3) but Harris is just minimizing fault.
 (3) Holding: the court
wants to look at the statements, line by line, to see if they are
inculpatory versus Williamson or neutral
(a) The
neutral ones allowed in.
(b) This is
a very narrow view.
4. 6) Statement Offered Against a Party that Wrongfully
Caused the Declarants Unavailability (Does not need to be criminal conduct)
a) Language
(1) Statement offered
against a party that wrongfully caused the declarants
unavailability
(2) A statement offered
against a party that wrongfully caused or acquiesced in
wrongfully causing the declarants unavailability as a witness,
and did so intending that result
b) Elements
(1) The defendant engaged
or acquiesced in the wrongdoing
(2) The wrongdoing was
intended to render the declarant unavailable as a witness
(3) The wrongdoing did
cause the witness to be unavailable
c) U.S. v. Gray
(1) Facts: Crazy chick who
kills husbands for insurance money; insurance company wants to
use former husband (Grays) statements.
(2) Issue: Whether or not
the defendant made Gray unavailable for this particular trial?
(3) Holding: The court
doesnt limit to a particular trial; just a trial in general.

Unrestricted Hearsay Exceptions - FRE 803 Declarant's Availability Immaterial

I. FRE 803 Overview of the Rules
A. These are unrestricted hearsay exceptions because it does not matter if
the declarant is available to testify, the out of court statements can come in for their
substance, in most cases without the declarant taking the stand
B. How do the Rules Differ?
1. 801(d)(1) = exceptions requires the declarant to testify;
exception is based on delayed cross-examination
2. 801(d)(2) = exception based on the status of the
declarant and his/her relationship to the case
3. 804 = exceptions based on a showing of declarant
unavailability and are more limited
4. 803 = exceptions unrestricted based on belief that the out
of court statement has sufficient guarantees of reliability
C. 3 Mechanism for Testing Hearsay = Oath, Demeanor, Cross-Examination
1. 803 exceptions make the chance of fabrication unlikely
2. Subjecting these to the 3 mechanisms arent going to add
to truthfulness
 3. Theyre as good as having the declarant on the stand
4. Better to get hearsay into evidence than the declarants
testimony
D. With these exceptions, more than one can apply
II. FRE 803(1) Present Sense Impressions
A. Language
1. Present sense impression. A statement describing or
explain an event or condition, made while or immediately after the declarant
perceived it
a) Examples = Willie Mays catch
(described the event while declarant perceived it)
B. Elements
1. An event occurred
2. Declarant has personal knowledge of the event
3. Declarant makes the statement while perceiving the
event or immediately thereafter
a) immediately requirement while
observing it or immediately after it
4. Statement describes or explains the event
III. FRE 803(2) Excited Utterance
A. Language
1. Excited Utterance. A statement relating to a startling
event or condition, made while the declarant was under the stress of the
excitement it caused
a) A statement describing or explaining an
event or condition, made while or immediately after the declarant
perceived it.
B. Elements
1. Startling or stressful event occurred
2. Declarant has personal knowledge of the event
a) can be proved circumstantially
3. Declarant made a statement relating to that event
a) broader in scope then present sense
impression
4. Declarant made the statement while still under the stress
or excitement of the event
a) this is key and while immediacy is still a
factor it is not dispositive
II. FRE 803(3) Then-Existing Mental, Emotional or Physical Condition
A. Elements
1. To prove then existing
physical/mental/emotional/condition
2. To prove later conduct
3. To prove facts about a will
4. Not to prove fact remembered or believed (except for
will)
B. Rationale = nobodys a better source of how you feel than you are
1. Could make the argument, depending on the
circumstances, that this isnt even hearsay
2. You cant infer someone elses plan; focus is on the
declarant
 a) Another question is how
contemporaneous does it need to be?
3. Need to be careful not to confuse with 803(4) ( doesnt
need to be said by a doctor)
4. This rule is NOT background looking
III. FRE 803(4) Statement Made for Medical Diagnosis or Treatment
A. Elements
1. Statement made to the proper addressee
2. Declarant knew that the person was a proper addressee
3. Declarant made the statement with a medical motive
(treatment/diagnosis)
4. Declarant realized that statement was medically relevant
B. Focus is on the declarant, but problematic if declarant was not there
C. In these instances, the injured party is the declarant
1. the declarant has no reason to lie and wants to take the
pain/injury away
D. Legal components typically are not medically relevant
1. Statements to fault usually do not qualify. For example,
a patients statement that he was struck by an automobile would qualify but not
his statement that the car was driven through a red light. Another example
concludes that a statement by a patient that he was shot would be admissible but
a statement that he was shot by a white man would not be. And the fact that a
patient strained himself while operating a machine may be significant to
treatment but the fact that the patient said the machine was defective may not be.
IV. FRE 803(5) Past Recollections
A. Language
1. (5) Recorded Recollection A record that:
a) (a) is on a matter the witness once knew
about but now cannot recall well enough to testify fully and accurately;
b) (b) was made or adopted by the witness
when the matter was fresh in the witnesss memory; and accurately
reflects the witnesss knowledge
B. If admitted, the record may be read into evidence but may be received as
an exhibit only if offered by an adverse party
1. **Use something to trigger their memory HOWEVER in
this rule you are actually introducing the information directly from the document
2. Notion is that even if she doesnt remember now, at that
time when it was collected that will be sufficiently reliable
C. Elements
1. The witness lacks present recollection
a) Note FRE 612 and rule regarding
attempts to refresh
2. The recording (statement) accurately reflects knowledge
the witness once had
3. The witness made or adopted the earlier statement
4. The recording was made while the matter was fresh in
his mind
5. ** Cannot use if the witness gives inconsistent
statements; only can use if the witness cannot remember
a) Adverse party = whoever is opposing
that evidence to come in . . .
 D. General
1. SOMEWHAT predicated for declarant being at trial.
2. HAS TO BE A WRITING
3. ***IF ADMITTED, THE RECORD MAY BE READ
INTO EVIDENCE BUT MAY BE RECEIVED AS AN EXHIBIT ONLY IF
OFFERED BY AN ADVERSE PARTY***
V. FRE 803(6) Business Records
A. Language
1. (6) Records of a Regularly Conducted Activity. A record
of an act, event, condition, opinion, or diagnosis if:
a) (A) the record was made at or near the
time by or from information transmitted by someone with
knowledge;
b) (B) the record was kept in the course of
a regularly conducted activity of a business, organization, occupation, or
calling, whether or not for profit;
c) (C) making the record was a regular
practice of that activity;
d) (D) all these conditions are shown by
the testimony of the custodian or another qualified witness, or by a
certification that complies with Rule 902(11) or (12) or with a statute
permitting certification; and
e) (E) neither the source of information nor
the method or circumstances of preparation indicate a lack of
trustworthiness.
B. Elements
1. Regular business and regularly kept record
2. The source of the information must have personal
knowledge of the information
3. Information gathered/recorded must be close in time of
the event
4. Records custodian or self-authenticating document must
establish information about the record keeping system, but does not need
personal knowledge of the information recorded
C. General
1. Purpose CANNOT be for litigation; used for regular
business purposes
2. Business has the motivation to be truthful and accurate
3. How routine is routine?
a) The person present at trial doesnt need
to have personal knowledge; just knowledge of the PROCESS.
4. Can be a very broad rule: can be a charity or a non-profit
a) Rationale is because they want truthful
and accurate information.
5. Record seen as more reliable than the declarant.
VI. FRE 803(8) Public Records
A. Language
1. Public Records. A record or statement of a public office
if:
a) (A) it sets out:
(1) the officers activities;
 (2) a matter observed while
under a legal duty to report but including, in a criminal case, a
matter observed by law-enforcement personnel; or
(3) in a civil case or
against the government in a criminal case, factual finding from a
legally authorized investigation; and
b) (B) neither the source of information
nor other circumstances indicate a lack of trustworthiness.
B. Elements
1. Record Types Allowed Under the Rule
a) Activities of the office
b) Matters observed pursuant to a legal
duty (but not law enforcement reports)
c) Factual findings resulting from
investigations pursuant to legal authority
2. Recorded in official custody
3. Record was properly prepared
4. Preparer was a public official
5. Official had a duty to record the information
6. Official had personal knowledge (except in cases under
803(8)(iii) in a civil case or against the govt. in a criminal case, factual findings
from a legally authorized investigation)
7. Entry was factual in nature
C. Overview
1. Distinction between this and 803(6) is government
organizations keeping records here as opposed to a private entity
2. Tricky thing:
a) One type doesnt work: law
enforcement records against a defendant in a criminal case
(***confrontation clause problem***)
3. Overall, a lot of statements come in.
4. Public record is an easier foundation to make govt. has
a duty
a) The difference is, do they have a duty to
report?
5. Record seen as more reliable than the declarant.
6. ***courts are split on whether a denial under 803(8)
could be let in under 803(6)***
VII. FRE 807 Residual Exception- Catch-All
A. Elements
1. The statement is offered as evidence of a material fact
2. The statement is more probative on the point for which it
is offered than any other evidence which the proponent can procure through
reasonable efforts
3. The general purposes of these rules and the interests of
justice best be served by admission of the statement into evidence
4. Notice
a) reasonable notice also required with
additional information
B. Used frequently in child abuse cases
 1. If you cant find any exceptions under 803 or 804, got to
807 and try to get it in.
2. Near miss exception

Confrontation Clause and Hearsay

I. Language
A. In all criminal prosecutions, the accused shall enjoy the right . . . to be
confronted w/ the witnesses against him
II. Basic terms of the Confrontation Clause
A. Applies in criminal prosecutions ONLY
B. Applies only to the rights of the defendant; prosecution doesnt get this
right
C. Confrontation in some form is required
D. Cross-examination: the confrontation is to cross-examine
III. If read broadly . . .
A. There could be no hearsay exceptions
B. Rule will allow some hearsay while others not allowing it in.
IV. Additional things to remember
A. Once you go through the hearsay analysis, see if exception applies; if an
exception applies, see if there is a confrontation clause problem.
B. Nothing is automatic just because you satisfy hearsay exception,
doesnt mean you satisfy confrontation clause
C. Confrontation clause applies in criminal cases; Congress or states can
abolish or modify hearsay rules but not the Clause itself.
D. Both the Confrontation Clause and the hearsay rules are rules of
exclusion. Each trumps the other. Confrontation Clause, if it applies, will exclude
hearsay evidence that otherwise meets an exception. Hearsay rules, if they apply, will
exclude evidence that satisfies the Clause, if no exception to the hearsay rules applies.
E. The scope of the Clause similar to the scope of the hearsay rules because
both have concerns about the inability to cross-examine declarant.
V. Crawfords Testimonial Formulation
A. Testimony or function equivalent (affidavits, custodial interrogations,
prior uncross-examined testimony) . . . that declarant would reasonably expect to be used
prosecutorial.
B. Extrajudicial statements contained in formalized testimonial materials
(affidavits, depositions, prior testimony, confessions) (Justice Thomass definition in
White v. Illinois, 502 U.S. 346 (1992)).
C. Statements made under circumstances which would lead an objective
witness to reasonably believe statement would be preserved for trial.
VI. Question left open after Crawford, what is testimonial?
A. Solemn declaration[s] or affirmation made for the purpose of
establishing or proving some fact. Statement made in response to police interrogation,
even if not sworn Note: need not be sworn
B. Statements produced w/ the involvement of government officers . . . w/
an eye toward trial
C. Prior testimony at a preliminary hearing, grand jury, former trial
D. Non-testimonial: business records; dying declarations; on-going
emergencies; overheard remark.
VII. What is not Testimonial?
A. An off-hand, overheard remark
B. casual remark to an acquaintance
 C. statements in furtherance of a conspiracy:
D. At least some business records
VIII. Gray Areas?
A. Present sense impression/911 calls
B. Excited utterance
C. Medical diagnosis
D. Statements of children to social workers
E. Lab reports/business records
F. Forfeiture by wrongdoing (Waiver)
G. Statements against interest that implicate a co-defendant
IX. What happened to reliability?
A. The [Confrontation] Clauses ultimate goal is to ensure reliability of
evidence, but it is a procedural rather than a substantive guarantee. It commands, not that
evidence be reliable, but that reliability be assessed in a particular manner: by testing in
the crucible of cross-examination.
X. Primary Purpose Test (Davis/Hammon)
A. Statements are non-testimonial when made in the course of police
interrogation under circumstances objectively indicating that the primary purpose of the
interrogation is to enable police assistance to meet an ongoing emergency.
B. They are testimonial when the circumstances objectively indicate that
there is no such ongoing emergency, and that the primary purpose of the interrogation is
to establish or prove past events potentially relevant to later criminal prosecution.
C. Factors:
1. Scope of the emergency
2. Type of dispute
3. Facts known to the police at the time of investigation
4. Potential threat to public
5. Whether suspect was apprehended
6. Medical condition of the declarant
7. Types of questions asked by the police (initial or follow-
up?)
8. Informality of the questioning, etc.
9. Taken in calm circumstances when the declarant out of
danger
10. Taken in the stationhouse or at the scene
11. Involving a series of questions
12. Being recorded by police interrogator
13. Following custody and Miranda warnings
14. Involving separation of the declarant from the suspect
15. Being made in circumstances which deliberate
falsehood risked severe consequences
XI. Crawford Holding
A. The Confrontation Clause bars the admission of testimonial statements of
a witness who did not appear at trial unless he was unavailable to testify, and the
defendant had a prior opportunity for cross examination
XII. Melendez-Diaz v. Mass.
A. Certain types of statements are sufficiently format, that, by any account,
they are testimonial (such as forensic lab report meant to establish the defendant's BAC
or to determine whether a substance is cocaine)
B. Bring just lab report without technical = Court said no cannot not do that
XIII. Bullcoming v. New Mexico
 A. The confrontation requirement in the Sixth Amendment cannot be met by
questioning one witness about anothers testimonial statements even if a court believes
that such questioning provides a fair enough opportunity for cross-examination.
B. FN 6: a statement is testimonial if its primary purpose is to establish or
prove past events potentially relevant to later criminal prosecutions
C. Is FN6 the law? Good argument that is because Justice Sotomayor, who
wrote Bryant agree withed it. But only time will tell
D. 4 Justices (maybe 5?) ready to jettison Crawford revolution and return to
the days where the essential question was the reliability of the statement, in other Ohio v.
Roberts.
E. For now, Crawford, modified by Davis/Hammon, Bryant, and
Bullcoming is still good law. But it seems to be hanging on by a thread
XIV. Key Points
A. When the declarant is present, testifies at trial, and responds to questions
about the out-of-court statement there is no Confrontation Clause violation.
B. If, despite best efforts, the prosecutor cannot produce the declarant, no
Confrontation Clause problem when the out of court statement was made under oath and
subject to cross-examination.
C. Also, no confrontation clause problem when the out of court statement is
not offered for the truth of the matter asserted.
XV. Confrontation Clause on the Exam
A. If the question addresses a settled issue (i.e., clear ongoing emergency,
former testimony, an off-hand remark, co-conspirator statement, etc.), you should state
the law, apply it, and move on.
B. If the question addresses a more ambiguous question (i.e., an ambiguous
911 call, child witness who tells a state social worker about past sexual abuse, other), you
need to argue from the available factors.
C. Credit will be given for the quality of your arguments, not merely your
conclusion. Which factors suggest that a statement is testimonial? Which do not? Why?
D. Williams v. IL: Dont have to worry about too much because it was a
judge alone case, not a jury trial; court found the situation OK.

Confrontation Clause and Bruton Doctrine

I. The Bruton Doctrine
A. (if applicable) the third question after hearsay and Confrontation Clause.
B. Concerns an out-of-court admission made by an accomplice tried jointly
w/ the defendant.
1. The confessing accomplices words are admissible
against him/her as an opposing partys statement; however if offered against the
defendant, they most likely would fail Confrontation Clause scrutiny.
2. Situation arises when A says nothing and B implicates A.
C. Problem as using it against A: no cross-examination (if A unavailable);
definitely a hearsay problem and maybe even a confrontation clause issue.
D. Ways to avoid confrontation violation (Bruton applies if none of these
opts avail):
1. Severed trials
2. Separate juries
3. Testimony by the confessing accomplice
4. Redaction
5. Bench trial
6. Admissibility of statement against non-maker
 E. Bruton v. U.S.
1. Facts: a jury instruction given limiting the postal
inspectors testimony; Bruton convicted and appeals.
2. 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 defendant had to be disregarded in determining his
guilt or innocence?
3. Holding: The Court holds because of the substantial risk
that the jury, despite instructions to the contrary, looked to the incriminating
extrajudicial statements in determining petitioners guilty, admission of Evans
confession in this joint trial violated petitioners right of cross-examination
secured by the Confrontation Clause of the Sixth Amend.
F. The point of Bruton is to show that a jury instruction limiting testimony
doesnt work.

Lay Witness and Experts

I. FRE 701: Opinion Testimony by Lay Witnesses
A. Overview
1. Lay witnesses: may not be in a position to give opinion (
example = Defendant is negligent; tire falling)
2. In some form or another, theyre all opinions/legal
conclusions
3. May not be direct observation
B. Opinion is limited to:
1. rationally based perception
2. helpful to understand testimony or helpful in
determining an issue of fact
3. and not based on scientific, technical, or other
specialized knowledge in the scope of FRE 702
4. cannot be testifying an expert
5. limited to what they observe
II. Expert Witness Overview
A. May be authority in something to give an opinion
B. Why can expert opinions be helpful: pretty powerful evidence; theres a
lot at stake; however, there are many problems (such as the inexactness of fingerprints)
C. Can give a wider girth as to what they can testify to can become one by
time in field, degree, etc.; can be powerful
III. FRE 702: Testimony by Expert Witnesses
A. Individual has expertise and can testify if:
1. Individual has expertise and can testify if
a) (a) will be helpful to the trier of fact to
understand evidence or determine an issue of fact
b) (b) testimony is based on sufficient
facts/data
c) (c) testimony is product of reliable
principles/methods
d) AND (d) expert reliably applied
principles/methods to the cases facts
B. Factors:
1. Qualified expert: training, skill, knowledge, experience;
quite broad; nexus needed between expert and evidence
 2. Proper subject matter: stuff the jury may not know; in
an area where jury experience may be counterintuitive
3. Proper basis: FRE 703
4. Relevant
5. Reliable
6. 403 Balancing
IV. FRE 703: Bases of an Experts Opinion Testimony
A. Expert needs to be made aware of or personally obscure information; can
also observe during trial
B. Limited to facts/data in forming their opinion (how they normally
conduct their studies)
C. Point is so expert can apply what they need for their analysis (reason
why hearsay allowed)
D. Balances based on exclusion (reverse 403 analysis)
V. FRe 704: Opinion on an Ultimate Issue
A. Evidence is not automatically objectionable because it embraces an
ultimate issue
B. (b) Couldnt say defendant acted with or without x intent; could say
that defendant presents x characteristic(s)
1. A medical determination is up to the jury (such as the
defendant is insane)
2. ***still a 403 issue evidence has to be helpful; cant
say other witness lying or person raped or victim abused***

Evidentiary Privileges