Evidence Outline

I. Sources of Evidence Law

a. Common Law
b. Codification
c. Constitutionalization
i. Constitution provisions trump some state provisions of evidence
II. Context of Evidence Law
a. States of the Trial
i. Pre-trial conference
ii. Jury Selection
1. Vore dire examination
a. official purpose – to weed those who should be disqualified
b. practical purpose; begin to persuade the jury
2. Challenges for cause
3. Peremptory challenges – no reason for challenge but cannot be used to remove
suspect classes
iii. Opening Statements
1. official purpose
a. motion to dismiss after P’s OS
i. technical requirement that the OS touch on the technical
requirements of the cause of action
b. D’s OS optional, may be postponed
2. Practical Purpose
a. acquire credibility
b. tell the client’s story
c. begin to persuade
iv. Evidence Phase: sub-stages
1. P’s case-in-chief
2. D’s motion to dismiss
3. D’s case
4. P’s rebuttal
b. Significance of staging
i. not OK to call a witness or offer an aexihibit during opponent’s stage
ii. opening stages may limit what can be done if successice stages
1. scope of rebuttal
2. scope of CX, RDX, etc.
iii. leading restricted questions on DX, RD
1. leading questions are those stated so as to get a desired result
iv. some extrinsic evidences requires a foundation to be laid during a previous stage
1. objection if “no foundation”
III. The Role of the Trial Judge
a. The Trial Judge’s Authority: FRE 104(a); C.E.C. §§ 310, 400, 495
i. judge determines the pro, con factual evidence in determining whether a particular piece
of evidence should be admitted and the rule provides that the FREs do not govern the
admissibility of this evidence

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 ii. under 104(a) the trial judge determines if there is a preponderance of the evidence
whereas under CEC the judge determines whether there is sufficient evidence for a
reasonable jury to determine the fact?
b. The Trial Judge’s Discretion: FRE 103; C.E.C. § 353, 354
i. FRE requires that appellate courts disregard errors that did not affect the substantial
rights of the parties
1. Requirements for appellate court to review
a. Substantial right affected
b. Timely & Specific objection by opponent
c. or, if evidence is excluded there must be an offer of proof by opponent
2. Standard of review on appeal
a. generally, abuse of discretion
b. however, appeal may also be on a question of law with regard FRE, in
such a case it is de novo
3. Generally, no reversal for harmless error - courts define substantial rights
differently and review the whole record for prejudice but differ on the standard of
certainty that makes an error harmless
a. more probably harmless than not
b. reversal unless highly probable that the verdict would have been the same
c. reversal unless the court is sure that the error did not influence the jury, or
had but slight effect
d. For Const. issues prosecution must show that error was harmless beyond a
reasonable doubt
4. If no objection at trial then reversal only plain error
a. error was particularly egregious, miscarriage of justice
ii. United States v. Walton (evidence abuse of discretion appellants like rich men getting
into heaven)
1. Rule: Appellate court reviews admissibility of evidence under abuse of discretion
2. Reasoning:
a. first-hand exposure to witnesses
b. guage impact of evidence on the jury
IV. Evidence:
a. FRE no definition of evidence
b. CEC §140 – Evidence means testimony, writings, materials object, or other things presented to
the senses that are offered to prove the existence or nonexistence of a fact
i. two parts
1. nature of thing
a. presented to senses
2. purpose
a. to prove a fact
c. Problems
i. are opening and closing statements arguments evidence
1. thing presented to the senses but not made to prove a fact, instead they are made
to persuade
ii. Judge’s instructions

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 1. presented to senses, but only offered to lay out legal parameters in which jury can
work
iii. Witness says, that’s the man who robbed me
1. yes, it is evidence, presented to senses, offered by prosecution to lend support that
D committed the crime
iv. While witness is testifying, the D looks nervous and scared
1. No, not offered by the prosecution but it may influence the jury
v. Witness asks, “may I have a glass of water”
1. no
vi. Jurors discuss whether it is possible to drive from Sac. to Davis in 10 minutes
1. no, rule only contemplates that a party offers the evidence
vii. Juror states that she drives to Davis often, and it never takes less than 15 minutes
1. no
viii. Juror’s belied that anyone who swears falsely will go to hell
ix. A revelation that comes in a dream to a witness
1. no because the dream is not something that can be presented to the senses
V. Relevance
a. Basic rule of evidence is that all irrelevant evidence is inadmissible
b. Some relevant evidence is admissible but may be excluded
c. Relevant evidence is a thing presented to the senses that has tendency to make more or less
probable the existence of a fact of consequence to the determination of the action
d. Relevance and Irrelevance
i. Relevant = rationally probative in any way
ii. FRE 401, 402; C.E.C. §§210, 350, 351
1. 401 – relationship between evidence and issue if there is a tendency to make the
existence of any fact that is of consequence fact to be proved more probable or
less probable – fact that is of consequence to the determination of the action
2. CEC §210 – relevant means evidence including evidence relevant to the
credibility of a witness or hearsay declarant having any tendency in reason to
prove or disprove any disputed fact that is of consequence to the determination
of the action
3. The fact to which the evidence is directed need not be in dispute under the FRE
but under California relevant evidence is that which has a tendency to prove a
disputed fact
a. Significance: is that the FRE allows Plaintiff or Prosecutor to tell the story
to the jury
b. but in CA even the background info is allowed because eventually it goes
to prove a disputed fact
c. thus in practice there is really no difference
4. What are facts of consequence
a. pleadings; what facts are alleged and disputed
b. substantive law: elements of the cause of action, defense
5. How to estimate probative value
a. Probative value = product of probabilities of the evidence and the
inferences drawn from them. See. pg. 21

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6. The difference between language of “probable” and “tendency” is insignificant as
interpreted
7. FRE 402 – all relevant evidence is admissible except as otherwise provided by the
Const., Act of Congress, Supreme Court rules. All irrelevant evidence is
inadmissible
8. CEC 351 – except as otherwise provided by statute, all relevant evidence is
admissible
a. this statute is really to abrogate judge made law.
9. Knapp v. State
a. Relevance of rebuttal evidence depends on relevance of evidence it is
offered to rebut
b. There must be an open and visible connection between the evidence and
the fact to be proved but it need only be a logical connection not an actual
connection
c. QE
i. testimony of the physician
d. Stage
i. prosecutors rebuttal
e. Is staging important
i. Would it had made a difference had P called physician in case-in-
chief
ii. Yes because prior to D’s testimony it would not had been relevant
because there was no background
f. How was D’s testimony relevant?
i. Rumors tend to be true, false rumors tend not to circulate thus
if it was a lie then the evidence is relevant because it tends to
discredit the D’s own statement
ii. The testimony complained of did have a tendency to negate the
defenses claim because it cast doubt on the credibility of the D by
showing that there was at least one liar in the story of the old man
being beaten to death
iii. Prosecution would have no case if it could not use this fact to
negate the claims of one who conveniently forgot who told him the
story
10. United States v. Dominguez (D asked friend to get barrel replaced, shop owner
saw scratched on gun
a. What are the inferences?
i. that ownership of a gun places the D in a subgroup of persons to
whom it is more probable that he might commit a crime with a gun
ii. that changing a barrel makes it more probable than without the
evidence that the D had a guilty mind
11. State v. Larson
a. QE: The scientific communities determination of the safe BAL to operate
a motor vehicle
b. Inference: That there is a comparison between driving a car and riding a
horse

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 c. Reasoning: This evidence was relevant because it allowed jurors to apply
their experience to evaluate toxication in driving a car and intoxication in
riding a horse
12. Four questions in assessing relevance
a. What is the questioned evidence
b. what is the fact sought to be proved
c. Is that fact material – examine substantive and pleadings
d. Does the evidence, in logic and common experience, have some tendency
to make that fact more probable than without the evidence
13. An item of evidence may allow multiple inferences
14. relevant item does not have to be sufficient to prove a fact
15. relevant does not need to be more relevant than not
VI. First rule of Exclusion
a. Probative Value and Prejudice
i. FRE 403 – if probative value is substantially outweighed by prejudice . . . . the judge
may exclude it – this rule favors admissibility
1. In deciding
a. Dangers
i. unfair prejudice; ensures jury decides case on proper grounds
ii. confusion of the issues; accurate fact finding
iii. misleading the jury; accurate fact finding
iv. waste of time
v. cumulative evidence
2. unfair prejudice = undue tendency to suggest a decision on an imporoper basis,
typically an emotional one
3. unfair surprise is not a reason for exclusion of evidence
4. US v. Noriega
a. QE: what Noriega did for the CIA
b. How relevant: It would show that he could account for his wealth
c. Issue: Does the exclusion of probative evidence warrant finding the trial
judge in error when the trial judge believed the possibility of confusing the
issues for the jury outweighed the probative value of the excluded
evidence
d. Exlcuded evidence that has some probative value does not make the
trial judge in error when the probative value of such evidence is
outweighed by the possibility to confuse the issues in front of the jury
e. Inferences Noriega wanted to make
i. He did important work for the US
ii. US paid Noriega lots of money
iii. His wealth is not unexplained
iv. Noriega was not a drug trafficker
5. US v. Flitcraft
a. couple convicted of tax evasion, at trial their defense was that it was not
done willfully, Husband testified orally that he had relied on cases and
materials that led him to believe that his income was not really income but

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 an exchange of money for time. Tried to present the actual materials but
trial judge refused the evidence. jury found them guilty.
b. On appeal they claim that the jury would have found them more credible if
they were allowed to introduce the evidence
c. Court found that the decision was not an abuse of discretion because
the introduction of such evidence would have been cumulative in light
of the oral testimony
6. Abernathy v. Superior Hardwoods
a. P had log fall on his back. D introduced evidence of videotape showing
how logs are unloaded at the mill. However, trial judge made D show
video without sound.
b. Rule – In the interest of economy and jury clarity a trial judge should
exclude minimally relevant nonprivileged evidence
c. Analysis:
i. To be admissible evidence must be relevant but also meet
minimal standards of reliability
ii. if evidence if weak the judge may exclude even though counsel
could expose its weakness on cross-examination
7. US v. MCRAE
a. Husband shot wife in head. On appeal objects to evidence of gruesome
pictures of wife’s corpse. Blown off back of head, body seated where it
was shot
b. Trial court reviewed pictures and excluded some
c. Rule: Evidence may be prejudicial so long as it is not unfairly
prejudicial. It is unfairly prejudicial when it is of scant or cumulative
probative value, dragged in for the sake of its prejudicial effect
b. Conditional Relevance
i. Where the admissibility of a particular piece of evidence is dependent on the answer to a
preliminary question of fact
ii. FRE 104(b)
1. When the relevancy of evidence depends upon the fulfillment of a condition of
fact, the court shall admit it upon, or subject to, the introduction of evidence
sufficient to support a finding of the fulfillment of the condition
iii. C.E.C. § 403
1. The proponent of the proffered evidence has the burden of producing evidence as
to the existence of the preliminary fact, and the proffered evidence is inadmissible
unless the court finds that there is evidence sufficient to sustain a finding of the
existence of the preliminary fact, when
iv. Seems to be two requirements
1. the proffered evidence if true would be relevant
2. if the relevancy depends on the condition of a fact (that the witness if telling the
truth) then there must be evidence sufficient to a reasonable jury finding
fulfillment of the condition
v. Under FRE 104 – there is no right to vire doire examination by opposing counsel. The
judge only evaluates the proponents evidence without considering opposing evidene
vi. The judge cannot factor credibility of the evidence in determining whether to admit it

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 vii. Whether under civil or criminal trial FRE 104 does not differentiate and thus the
conditional relevance of the must only be proved by a preponderance of the evidence
viii. State v. McNeely
1. D convicted of aggravated murder. Appeals on basis that testimony from former
inmate should have been excluded because witness was unable to identify the D
2. State contends that the inmates testimony was conditionally relevant under 104
and thus properly admitted
3. Rule
a. Under FRE 104(b) when the judge determines whether the foundation
evidence is sufficient for the jury reasonably to find that the condition on
which relevance depends has been fulfilled. If so, then the evidence is
admitted
b. Once the judge admits such evidence. The other party may introduce
evidence to that is relevant to the weight and credibility of the evidence
4. Analysis
a. No question that if the D was indeed the man who the inmate purportedly
talked to, then the inmates testimony was relevant
b. Even though the inmate could not identify the D. The Court found that a
reasonable jury could conclude that the inmate had indeed talked to the D

HEARSAY

I. Hearsay
a. Hearsay is inadmissible
b. Leake v. Hagert
i. Leake sued Hagert from negligence arising from car accident. Hagert drove into back of
Leake while he was towing a plow with a tractor.
ii. QE: Testimony of D’s witness, Edwards Gross, insurance adjuster who testified that
Leake’s son told him that a rear light on the tractor had been out for some time
iii. Rule: The hearsay rule prohibits use of a person’s assertion, as equivalent to
testimony of the fact asserted, unless the assertor is brought to testify in court on the
stand, where he may be cross-examined as to the grounds of his assertion and his
qualifications to make it
iv. Issue: Was evidence of the son’s statement hearsay?
v. Court found that the trial court erred in not sustaining the P’s objection but that the error
was not prejudicial
vi. Hypo’s
1. What if the evidence brought in was a tape recording of the con saying rear light
had been broken
a. Tape recording is hearsay because it is evidence of the statement
2. What if written statement of son
a. Still heatsay
3. An affidavit by the son
a. Hearsay

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 i. this shows that statement under Oath is not whole idea behind
hearsay
4. Transcript of a deposition of son
a. Yes, hearsay but . . .
5. A videotape of a deposition of son
a. Still hearsay
c. Value of testimony depend upon
i. Purpose of testimony and purpose of the hearsay rule
1. Purpose of testimony
a. Perception
b. Memory
c. Narration
d. Sincerity
2. Purpose of hearsay
a. oath
i. out of court declarant does not speak under oath
b. personal presence at trial
i. declarant’s credibility cannot be deciphered
ii. public disgrace of lying is not present
c. cross-examination
i. no ability to cross-examine the declarant
ii. Why is it inadmissible
1. Presence of risks that may mislead the jury
a. ambiguity
b. insincerity
c. erroneous memory
d. faulty perception
2. Absence of tools by which jury can assess its credibility
a. oath
b. in jury’s presence
c. cross-examination
d. FRE 801, 802; CEC 1200
i. FRE vs. CEC
1. Under FRE hearsay is a statement under CEC, hearsay is evidence of a statement
a. this reflects the incompleteness of the FRE
2. FRE uses the word declarant, CEC uses the term “made other than by a witness”
a. the witness at current trial is not a hearsay declarant, but everyone else is a
hearsay declarant
ii. Eclectic definition Meyers
1. Evidence of an out of court statement offered to prove the truth of the matter
asserted therein
a. if the purpose does not depend at all upon the truth of the statement then it
is not hearsay
2. Out of court = any statement other than one made under oath and in front of the
factfinder during the same proceeding in which it is being offered in evidence

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 a. testimony in an earlier trial is an out of court statement for purposes of the
present trial
iii. Truth of the Matter Asserted; What does it mean
1. if the significance of an offered statement lies solely in the fact that it was made,
no issue is raised as to the truth of the matter asserted and the statement is not
hearsay
2. Important question to ask is what purpose is the evidence being offered for: is it
being offered to prove the matter asserted, or is it being given to prove the hearers
state of mind, what the hearer knew, a legal effect, etc.
3. Always argue against the admittance of evidence that could be charactierized as
hearsay based on the hearsay risks, i.e. ambiguity, insincerity.
a. even if being admitted not to assert the truth of the matter it could be
argued that the hearsay risks outweigh admitting the evidence
4. One way to determine if it is hearsay is if it would be relevant if untrue, if
irrelevant if untrue then it is likely hearsay
a. reputation is hearsay but its falls within an exception
5. Classifications of nonhearsay uses of statements
a. Advocacy
i. proponent must demonstrate how statement is relevant without
regard to its truth
b. Informative utterances
i. inference about the declarant – permit an inference about the
speaker or the hearer
1. CESOM; knowledge, awareness, notice, belief, etc.
ii. inferences about the hearer
iii. performative utterances - verbal acts, words as operative conduct
iv. fact of speaking/writing
v. independent legal significance
vi. prior inconsistent statement
vii. association with words
6. Lyons Partnership v. Morris Costumes (Circumstential evidence of the state of
mind of the declarant)
a. Nature of Case – Trademark infringement; D was accussed of renting a
custome that significantly resembled the P’s product, Barney. Trial court
found for D after excluding much of the evidence upon which the P made
their case
b. QE – Testimony of elementary school principal – said when he wore
costume all children shouted “Barney, Barney” – parent testimony that
their kids thought the rented costume was that of Barney – newspaper
clippings showing confusion
c. Relevance – To prove confusion
d. Reasoning:
i. Not hearsay because the testimony was not offered to prove the
truth of the matter asserted – to prove that the persons wearing the
costume wear in fact Barney

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 ii. Offered to prove that the children and reporters expressed their
belief that those in the costumes were Barney
iii. It was evidence of actions not of trying to prove that they thought
the person in the costume was actually Barney
7. United States v. Parry
a. Nature of Case – D was convicted of conspiracy to distribute certain drugs
– D made defense that he thought he was simply helping under cover
agents locate drug dealers and that he knew they were under cover agents
– trial court denied testimony of mother
b. QE – Wanted to offer testimony of mother to say that her son had told her
that the person calling her home was an under cover agent
c. Relevance – To prove that he was not conspiring but was working in good
faith for the under cover agents to locate buyers
d. Holding: Court said that mother’s testimony did not violate the
hearsay rule because the D did not offer testimony to prove that the
person calling was a narcotics agent – the matter asserted to be true –
but rather to prove that he knew they were narcotics agents
8. Subramaniam v. Public Prosecutor (effect on the hearer)
a. Nature of Case – D convicted of possessing 20 rounds of ammo in
contravention of statute – tried to make defense that his possession was
under duress due to terrorists who had forced him to possess it
b. QE – D’s testimony about the conversations that he had with the terrorists
and how he feared for his life
c. Relevance: To prove his mental state and that he intended to surrender
d. Holding: D did not offer it to prove the truth of what the terrorists said but
that they said it and that he feared for his life
9. United States v. Johnson (effect on hearer, or awareness or knowledge of the
hearer)
a. QE – testimony of former employee who gave testimony that she
overheard one Dr. tell D that he was going to have to stop writing
prescriptions like that
b. Relevance – to prove the D’s mental state
c. Holding: The employee’s testimony was not hearsay even though it was a
conversation between two other people because it was not meant to prove
the fact the D shouldn’t have been writing such prescriptions but instead it
went to prove the D’s mental state
10. United States v. Saavedra (verbal acts; words as operative conduct)
a. Nature of Case – D was convicted of wire fraud, calling names and
soliciting their credit card numbers and then charging Western Union
b. QE – Testimony from the victims discussing how the inmates would call
and ask for the credit card numbers pretending to be law enforcement
c. Reasoning: The victim testimony was not hearsay because it was not
given to prove that the D’s were in law enforcement officers but
instead was given to prove how the D’s perpetrated their fraud
11. Hanson v. Johnson (verbal acts: words that have independent legal significance)

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 a. Nature of Case – Sharecropper conversion for mortgaging certain corn
crops which should have been the landowners
b. QE – testimony of P who testified as to what the D said concerning the
ownership of the corn
c. Reasoning: the words of the tenant affected a legal relationship concerning
the ownership of the corn independent of its truth
12. Creaghe v. Iowa Mutual Casualty Co.
a. Nature of Case – Case to recover unpaid damages from an insurance
company but the ins.co claims that the policy was cancelled before the P
got in an accident
b. QE – Testimony of agent who testified that he heard the insured say that
he wanted his policy cancelled and his premiums returned
c. Relevancy – to prove that fact that the policy was cancelled
d. Reasoning:
i. The agent’s testimony was not hearsay because it was not given to
prove that the insured really wanted to cancel the policy only
whether the policy was actually cancelled
e. Rule: the hearsay rule does not exclude relevant testimony as to what
the contracting parties said with respect to the making or the terms of
an oral agreement
13. United States v. Montana
a. Nature of case – D convicted of bank robbery, has accomplice testify
favorably but accomplice passed note to D’s mother to solicit money for
the favorable testimony. Marshall then over heard accomplice tell D to
tell D’s father that it was going to cost $10,000
b. QE – Marshall’s testimony about Dodd’s out of court statement
c. Rule: Performative utterances are not subject to the hearsay rule
because they do not make any truth claims
e. Implied Assertions
i. Important to understand the definition of statement
1. a statement is an oral or written assertion or nonverbal conduct of a person, if it is
intended by the person as an assertion
ii. Key case is Wright v. Tatham where the butler tried to defend the testator’s will be
showing he was competent through introducing letters written to testator implying that
the testator was competent
1. given subject matter of letter, the writer believed the testator was competent to
deal with the issues
2. Court thought there were certain hearsay risks in allowing the letters to be
admissible
a. hearsay risks
i. ambiguity – perhaps letter writers did not intend to imply that they
assumed the testator would take responsibility for these matters –
instead they assumed one of his minders would take care of the
matter
ii. insincerity – perhaps they wrote the letter so that he wouldn’t
retaliate even though they know he’s crazy

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 iii. memory – perhaps the writers had not dealt with the testator for
awhile
iv. perception – perhaps writers did not perceive his illness
b. rule: said that evidence is hearsay when proof of a particular fact
which is only relevant as implying a statement or opinion of a third
person is inadmissible in all cases where such a statement or opinion
would be of itself inadmissible – this is no longer the law under the
FRE
3. Modified Assertion Oriented Definition
a. evidence of an out of court statement or conduct implying a belief offered
to prove the truth of the matter stated or implied
4. Modern rule definitions of statement
a. statement is an oral or written assertion of nonverbal conduct of a person
if it is intended by the person as an assertion – FRE 801
iii. United States v. Zenni
1. Nature of case – government agents while using a warrant to collect evidence
received phone calls at D’s premises, the callers placed bets on certain sporting
events
2. QE – government tried to introduce evidence of callers to show that they believed
the premises were used in betting operations
3. Reasoning:
a. government does not want to offer evidence to prove the truth of the
words but rather to show what the callers believed
b. Argument for implied assertions
i. implied assertions do not carry with them the dangers
associated with hearsay; A man does not lie to himself
c. FRE approach
i. the word statement in FRE 801 excludes from the hearsay rule all
evidence of conduct, verbal or nonverbal, not intended as an
assertion
ii. Nonverbal conduct may be offered as evidence that the person
acted as he did because of his belief in the existence of the
condition sought to be proved, from which belief the existence
of the condition may be inferred
d. Court finds that the utterances of the betters was nonassertive verbal
conduct offered as relevant for an implied assertion to be inferred
iv. FRE 801(a) + CEC § 225 – virtually the same
1. both allow implied assertions by defininf “Statement”
a. in both cases they are it is a written or oral statement(assertion)
b. that is intended as an assertion
2. these legislators thought that the dangers of implied assertions are not as present,
ie.e faulty perception, memory and narration
3. scholarly criticism
a. if the conduct is truly nonassertive then no possibility of insincerity, but
there is problem of ambiguity and there are the normal problems of faulty
memory and faulty perception

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 4. how easy is it to prove assertive intent
a. opponent has burden of proving that the out of court actor’s intent was
assertive
b. hypo – to prove H was away from home on 2/28
i. A testified that W always left her living room shade up when H
was away
ii. B testifies the W’s living room shade was up on 2/28
iii. B testifies that W’s living room shade was up on 2/28
iv. Y testifies that Z, W’s boyfriend told him that the shade was to go
up to signal that H was away
5. does the failure to act act as an assertion
a. example: bus driver says if anyone is cold then raise your hand but no one
raises their hand
i. in this case it would be considered an intended assertion
b. example: investigator says he talked to everyone and found no one who
had ever heard of W
i. is this hearsay under the FRE and CEC – not technically but there
is underlying hearsay
6. trained animal and machine (radar gun) assertions are not considered hearsay,
instead it is a matter of reliability
7. Luggage tag problem
a. to prove that a suitcase belonged to a certain person, testimony that the
suitcase bore a luggage tag with that persons’s name and address
i. the statement is from the person who wrote the tag and placed it on
the suitcase
ii. but the hearsay risk is minimal because one does not ordinarily
place a false tag on a suitcase – most courts would not to consider
this hearsay
8. Gas bill
a. to prove that a person lived at a certain address, testimony that desk if
filled with gas bills from the company addressed to that person at the
address
i. this is not hearsay because the conduct of having a bill at a house
reduces the hearsay risk because people don’t normally keep bills
that are not theirs
9. Bad Pie
a. to prove that X was allergic to raspberries
i. testimony that after X ate a large slice of raspberry pie, he vomited
1. this is not hearsay because a reflective action is not
considered an assertion
ii. testimony that when X was offered a slice of raspberry pie he said
“take that away and don’t ever again offer me raspberry pie”
1. is this intended as an assertion, probably
2. thus the question is whether the assertion is intended to
show that he was allergic
II. Exclusions to the Hearsay Rule

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a. Prior Statement by Witness – Not defined as hearsay – ask yourself if the declarant is testifying
at trial
i. FRE 801(d)(1)
1. (d) Statements which are not hearsay. A statement is not hearsay if--
(1) Prior statement by witness. The declarant testifies at the trial or hearing and
is subject to cross-examination concerning the statement, and the statement is
(A) inconsistent with the declarant's testimony, and was given under oath
subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a
deposition, or (B) consistent with the declarant's testimony and is offered to
rebut an express or implied charge against the declarant of recent fabrication or
improper influence or motive, or (C) one of identification of a person made after
perceiving the person
ii. CEC § 1235, 1238
1. § 1235 - Evidence of a statement made by a witness is not made inadmissible by
the hearsay rule if the statement is inconsistent with his testimony at the hearing
and is offered in compliance with Section 770 [which provides an opportunity for
the witness to explain or deny the prior statement]
2. § 1238 - Evidence of a statement previously made by a witness is not made
inadmissible by the hearsay rule if the statement would have been admissible if
made by him while testifying and:
a. (a) The statement is an identification of a party or another as a person who
participated in a crime or other occurrence;
b. (b) The statement was made at a time when the crime or other occurrence
was fresh in the witness' memory; and
c. (c) The evidence of the statement is offered after the witness testifies that
he made the identification and that it was a true reflection of his opinion at
that time
iii. The CEC is different from the FRE in this matter, the CEC § 1235 gives an unlimited
ability to use prior inconsistent statements by witnesses says the dangers which the
hearsay rule is designed to protect is nonexistent because the witness is there and the
prior statement is more likely to be true because
a. nearer in time
b. less likely to be influenced by the controversy
2. this also protects a party against a turncoat witness who changes his story on the
stand and deprives the party calling him of evidence essential to his case
a. if the party who has the burden of proof cannot get the statement in
substantively but just for credibility then it cannot in many cases meet its
burden
i. this protects the prosecutor because witnesses typically change
their stories in criminal cases
iv. The FRE limits the ability of prior inconsistent statements to better protect the defendant
1. thus the FRE made a prior statement admissible was made under oath in a
proceeding
v. Examples of differences
1. W called by prosecutor in CIC, testifies that H did not do it. But W previously
stated that D did do it in

14
 a. Preliminary hearing testimony
i. Common law would only allow to be used for credibility
ii. CEC – can use as substantive evidence
iii. FRE – can use as substantive evidence
b. Grand jury testimony
i. FRE – would qualify for substantive evidence
1. this is a product of federal prosecutors wanting to be able to
use statements made therein
c. Written affidavit to police officers
i. Under FRE this would probably not be able to be used as
substantive evidence because it is under oath but not made in a
proceeding
1. reason for a preceding is that everything is documented
a. and so it is much less likely that a witness can ever
deny making the statement
b. this takes out of controversy whether the statement
was ever made
2. Miller does not think this should count as a proceeding
but there is a split of authority
d. Oral statement to police officers
i. Under FRE this would not be allowed as substantive evidence
ii. This would be admissible in CA
vi. What is inconsistent
1. W “forgets” some details
2. W “forgets” selectively
3. W “forgets” entirely about the event
4. W refuses to testify because afraid
5. W claims a privilege not to testify
6. What if the judge believes a claimed loss of memory is feigned? Is genuine?
a. a genuine memory loss would seem to suggest that it is not necessarily an
inconsistent statement and therefore the statement does fall within FRE
801d1
b. if he selectively forgets because he claims he is afraid to admit that he lied
to the police
i. this would be considered an inconsistent statement because it is a
repudiation of the prior statement
c. behavior in testimony that connotes inconsistency will be considered
inconsistent
vii. Calling witnees for purposes of impeachment with PIS
1. Prosecutor may call W to inculpate D, P calls W who exculpates D
2. Surprised, P asks W about W;s statement to police officer which inculpates D
3. But what if prosecutor has learned that W, if called to testify, will exculpate D
a. has the prosecutor acted improperly
i. At common law – a limiting instruction would be given such that
jury could only use to impeach credibility

15
 ii. Under the FRE a prosecutor who calls a witness to exculpate can
only use the evidence to use for credibility and not for substantive
evidence – unless the PIS was made under oath
iii. Under CEC the prosecutor may call a W to exonerate the D and
then know that he can use the prior inconsistent statement against
the W as substantive evidence against D
viii. Sufficiency of the Evidence
1. Suppose proof of the crime is very strong, but the only evidence that D was the
perpetrator is a witness’ report to the police, introduced by prosecutor as a PIS
after W testified in P’s CIC that D was not the perpetrator
a. Under FRE – this would not be able to be substantive evidence because
the PIS was not made in a preceding
2. The question is whether if the only evidence is a prior inconsistent statement is
sufficient to support a jury’s finding
a. Under FRE an unsworn PIC is not enough, but if it is made under oath and
subject to cross-exam when made then that is sufficient to support a jury’s
finding
ix. If something is excluded under the above rules then it can be used for anything, it is not
considered a non-hearsay use, it can be used to prove the truth of the matter asserted
x. Reasoning for the Rule
1. The FRE adopts the basic idea of the CEC
2. These rules allow prior inconsistent statements made by a witness at trial to be
used as substantive evidence and not simply for impeachment
a. dangers for which hearsay rule exists is non-existent in these cases
i. declarant is in court and may be examined and cross-examined
ii. the prior statement if more likely to be true because it occurred
closer to the time of the occurrence and was not clouded by the
litigation
iii. trier of fact can determine the truth or falsity of the prior statement
just as well as the contemporaneous testimony
3. The old common law rule was result oriented towards D because impeachment by
cross-examination still didn’t prove preponderance
4. Allowing testimony as to prior identifications are desirable because identifications
made soon after an occurrence are more accurate than identifications made later in
the investigation
xi. Statements of prior identification
1. Common law
a. PID admissible to corroborate in court identification, a non-hearsasy use,
like PCS
b. PID is inadmissible hearsay if there is no in court identification for the
PID to corroborate
2. FRE 801d1C
3. CEC § 1238 – this is different from FRE because it requires that the witness
testifies that he made the identification before the evidence of the out of court
statement is made
4. Justification for substantive use of statements of PID

16
 a. statements of PID is more reliable because of the closeness of time
b. in court identifications are almost worthless
c. and the person who made the prior statement if subject to cross-
examination
5. Hypo: W remembers making a correct lineup identification
a. but cant remember of whom
b. QE: cop testifies that W picked D our of a lineup
6. Hypo: W does not remember or denies making a prior ID
a. QE: Cop testifies that W picked D out of a lineup
7. Comparing these two hypos
a. Under CEC § 1238
i. the first hypo would allow the cops statement
ii. the second hypo would not be allowed under CEC § 1238 under
subsection C
b. Under FRE
i. the first and second hypo would work because the statement is one
under subsection C
8. May an admissible statement if PID include details about
a. the basis for identification
b. pass contacts between W and the person
c. the crime and exactly what the person did
9. Answer it is just the identification and only the other parts of a statement that are
pertinent to the identification
xii. United States v. Owens (prior statement of identification)
1. Nature of the Case
a. In hospital an FBI agent was unable to get the V to identify the D but at a
later date the V had further recovered and was able to identify the V
b. V testified that he remembered identifying the D in the hospital with the
FBI agent
c. on cross, the V admitted not remembering actually seeing his assailant and
that he could not remember seeing any visitors at the hospital other than
the Fed
d. D counsel tried to refresh Vs memory about attributing the attack to
someone else while in the hospital
2. QE: The testimony of the V regarding his identification in the hospital because
the P believes that due to the Vs memory loss he was not able to be cross-
examined as required by the rule
3. Rule: The “subject to cross-examination” requirement may be undermined
to such a degree within the intent of the rule so as to render it null if the
court limits the scope of cross-examination but memory loss of the V is not
sufficient to not warrant the witness as subject to cross examination
a. cross-examination often tries to show that the witness suffers from an
incorrect memory and thereby destroying the force of his prior
statement
4. Question from Miller is whether the holding of Owens applies to prior
inconsistent statements under FRE 801d1A

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 xiii. Prior Consistent Statements
1. CEC § 770, 1235
2. FRE 801(d)(1)(B) – allowed substantively if it can rehabilitate the witnesses
credibility
a. this FRE avoids a limiting instruction when PCS is used to rehabilitate
3. Common law – admissible in limited circumstances to rehabilitate credibility of
witness
b. Admissions by parties opponent & their affiliates – what is the relationship of the declarant to the
party opponent - A statement made by a party offered against that party – no person knowledge
necessary – may also include an opinion
i. Vocabulary
1. Evidentiary admission
a. testimony that would appear to be hearsay that is nonetheless admissible
hearsay under one of the exclusion theories
b. admissible for the FOTOMAT
c. not binding – party may contest accuracy of own evidentiary admission
d. Types – grouped according to relationship between declarant and
opponent
i. personal – party opponent’s own statement
ii. adoptive – party opponent’s own statement
iii. authorized – court thinks important to make the party opponent
responsible for these statements
iv. agent/servant - id
v. co-conspirator - id
2. Judicial admission
a. conclusively established a fact, cannot be contested until withdrawn
ii. FRE 801(d)(2)(A)
1. Admission by party-opponent. The statement is offered against a party and is (A)
the party's own statement in either an individual or a representative capacity or
(B) a statement of which the party has manifested an adoption or belief in its
truth, or (C) a statement by a person authorized by the party to make a statement
concerning the subject, or (D) a statement by the party's agent or servant
concerning a matter within the scope of the agency or employment, made during
the existence of the relationship, or (E) a statement by a coconspirator of a party
during the course and in furtherance of the conspiracy. The contents of the
statement shall be considered but are not alone sufficient to establish the
declarant's authority under subdivision (C), the agency or employment
relationship and scope thereof under subdivision (D), or the existence of the
conspiracy and the participation therein of the declarant and the party against
whom the statement is offered under subdivision (E).
iii. CEC § 1220
1. Evidence of a statement is not made inadmissible by the hearsay rule when
offered against the declarant in an action to which he is a party in either his
individual or representative capacity, regardless of whether the statement was
made in his individual or representative capacity

18
 iv. An out of court statement is offered into evidence against the person who made it, the
statement qualifies as an admission and is therefore exempt from the hearsay rule
1. it is an admission because it was made by the party declarant
2. in this sense the admission need only be made by the party against whom it is
offered
3. the admission does not have to be against the party’s interest when made
v. An admission may not be admitted by the declarant party in his favor, it may only
be admitted against him
vi. This exception is rooted in adversarily fairness and not the other hearsay considerations
vii. Why allow admissions
1. accuracy of fact finding
2. efficiency/economy
3. extrinsic policy – promote personal responsibility
4. underlying rational
a. adversary system
viii. Misconceptions
1. never say admission against interest
a. call it admission by party opponent
b. Save declarations against interest for FRE 804
2. never say “he didn’t admit anything”
a. all that is required is that it is relevant and made by the opponent party
3. wrong- an admission is any statement by a party
a. statement must be offered against the party declarant – it cannot be made
offered by the declarant party
ix. Admissible against whom
1. Hypo
a. Farmer claims crop failed because seed defective or pesticide was unsafe
for this kind of corn
b. QE – farmer testified that pesticide sprayer told the farmer that the seed
farmer bought from the seed seller was extremely sensitice to the product
applied by the pesticide sprayer
i. this is relevant because it tends to prove that both that the pesticide
was unsafe and that the seeds were defective
ii. under the hearsay exception it is admissible against the sprayer
iii. but not against the seed seller
x. Direct Admissions – statement by a party offered against that party
1. Generally
a. Statement by a party offered against party is admissible even if
i. the statement is not based on the personal knowledge of the party
ii. not against interest when made
iii. it is an opinion or speculation
iv. made in different capacity than party’s capacity in the litigation
b. Salvitti v. Throppe
i. QE – D now contends that his admission should not have been
admissible because he was not personally at the accident and based
his admission on the account of his driver

19
 ii. Rule – A declarant’s out of court admission is admissible as a
declaration against interest. Even if such an admission is not
based on personal knowledge of the facts that gave rise to the
admission
c. United States v. McGee
i. QE – Detective testified at trial that the D had changed his story
several times during the investigation and gaves accounts of the
changed stories. D contends that his prior statements should not
have been admitted as admissions because they were not
inculpatory
ii. Rule – Under FRE 801(d)(2)(A) An admission does not have to
be inculpatory to be considered an admission, it need only a
party’s own statement offered against the party
d. United States v. Phelps
i. QE – At trial the D sought to introduce testimony of officer to
testify to the fact that when officer discovered the bag, the D said it
was his bag but that co-D put it in the trunk.
1. the Co-D objected to this testimony
ii. Issue: Is evidence of a party’s past admission, admissible when
that party seeks to introduce it in his favor
iii. Rule: A prior out of court statement made by the party declarant is
not exluded from the hearsay definition when that party seeks to
offer the evidence for his favor and such a statement is an
admission
1. a party’s prior statement may be introduced as an
admission only when offered against that party and not
in his favor
iv. To allow such evidence would be to allow the party to give a self-
serving declaration
2. Admissions and Multiple Hearsay
a. FRE 805 - Hearsay included within hearsay is not excluded under the
hearsay rule if each part of the combined statements conforms with an
exception to the hearsay rule provided in these rules.
b. CEC § 1201 - A statement within the scope of an exception to the hearsay
rule is not inadmissible on the ground that the evidence of such statement
is hearsay evidence if such hearsay evidence consists of one or more
statements each of which meets the requirements of an exception to the
hearsay rule.
c. Even though statements under FRE 801(d) are not technically hearsay
such statements should fall under the category of “exceptions” for
purposes of 805
d. Reed v. McCord
i. Nature of the Case – D was sued for injuries to plaintiff’s intestate
based on D’s negligence in operating some factory equipment
ii. QE – P offered testimony of coroner stenographer who said what
the D told him that the dog of the machine was not in its proper

20
 place but that the operate of the machine though it was and started
the machine but slipped on it and that was how the accident
happended
1. however, the D was not present at the accident and so only
told the coroner what he knew based on what other people
had told him – D had no personal knowledge
iii. D argues that because his admissions were not based on his own
knowledge they cannot be used against him
iv. Rule – In civil actions the admissions by a party of any fact
material to the issue are always competent evidence against
him, wherever, whenever or to whomsoever made
v. Analysis –
1. court says that if D simply he heard people say how
accident happened that wouldn’t be admissible because it is
simply hearsay
2. but D’s statement was an admission of facts which attented
the P’s death
e. Farmer Hypo
i. QE – Letter from seed seller to farmer stating that pesticide sprayer
told seed sellder that the product used by the pesticide sprayer was
extremely damaging to the type of corn seed seller sold to farmer
ii. who is it admissible against?
1. the seed seller letter is only admissible against the seed
seller
2. but the evidence of what ps told ss per the letter is not
admissible against the ps
3. also for some reason it is not admissible against the seed
but I am not sure in what context
f. Foster v. Commissioner of IRS
i. A party’s lack of personal knowledge that X is a fact does not
render inadmissible his statement to that effect
1. this is so even if the admission is based on what someone
else told the party as a fact
3. Admissions and Completeness
a. FRE 106 - Remainder of or Related Writings or Recorded Statements
i. When a writing or recorded statement or part thereof is
introduced by a party, an adverse party may require the
introduction at that time of any other part or any other writing
or recorded statement which ought in fairness to be considered
contemporaneously with it.
b. CEC § 356 - Entire act, declaration, conversation, or writing may be
brought out to elucidate part offered
i. Where part of an act, declaration, conversation, or writing is given
in evidence by one party, the whole on the same subject may be
inquired into by an adverse party; when a letter is read, the answer
may be given; and when a detached act, declaration, conversation,

21
 or writing is given in evidence, any other act, declaration,
conversation, or writing which is necessary to make it understood
may also be given in evidence.
c. The rule of “at that time” would require the opponent party to introduce
the remainder of the document on direct examintation but this rule is not
read to so strictly because the common law rule allows the introduction of
the remainder of the document “in his turn”
d. Thus the question is whether the CL survives the FRE -
e. Beech Aircraft Corp. v. Rainey (common law rule, different from the FRE)
i. the opponent against whom a part of an utterance has been put
in, may in his turn complement it by putting in the remainder
in order to secure for the tribunal a complete understanding of
the total tenor and effect of the utterance
ii. if one party uses a portion of a document such that
misunderstanding or distortion can be averted only through
presentation of another portion, the material required for
completeness is ipso facto relevant and therefore admissible
f. Court in Beech says that strict adherence to FRE would result in a
distorted view of the evidence
g. The CL and 106 makes admissible evidence that would not otherwise be
admissible because it would lead to misleading the jury by allowing only a
portion of the relevant document
xi. Adoptive Admissions
1. FRE 801(d)(2)(B) – A statement is not hearsay if –
a. The statement is offered against a party and is (B) a statement of which the
party has manifested an adoption or belief in its truth
2. CEC 1221 - Evidence of a statement offered against a party is not made
inadmissible by the hearsay rule if the statement is one of which the party, with
knowledge of the content thereof, has by words or other conduct manifested his
adoption or his belief in its truth.
3. Implied adoption
a. Example – Widow submits death certificate in support of claim to life
insurance on husband. Certificate states that he died of a disease
b. Widow then discovers accidental death policy on husband and applies for
the proceeds. Company denies the claim. Widow sues
c. QE: In its defense, company offers the death certificate and letter
submitted by widow in support of her claim on the life insurance co
4. United States v. Fortes
a. Nature of case – D was convicted of armed robbery, after the robbery his
accomplice described the robbery to Ward while D was present.
b. QE – Testimony of Ward who gave a recitation of what D’s accomplice
had told him in D’s presence concerning the burglary
c. Rule – FRE 801(d)(2(B)
i. When a statement tending to incriminate one accused of
committing crime is made in his presence and hearing and
such statement is not denied, contradicted, or objected to by

22
 him, both the statement and the fact of his failure to deny are
admissible in a criminal prosecution against him, as evidence
of his acquiescence in its truth, if made under such conditions
as would warrant the inference that he would naturally have
contradicted them if he did not assent to their truth
d. Acquiesence in a statement made under conditions which would lead to an
inference the party assented to the statement is an adoption of a belief in
that statement by that party
e. Hypo:
i. Suppose Fortes had testified that Jemison was not in the oroom
during the Ward-Fortes conversation, contradicting Ward’s
testimony that Jemison was in the room
1. Should the issue of whether Jemison heard Ward & Fortes
be decided under FRE 104(b) relevancy or FRE 104(a)
admissibiltiy
a. if 104b the judge does not wegh the evidence; only
asks whether there is sufficient evidence from
which a reasonable jury . . .
i. this allows the jury to decide whether
Jemison adopted the conversation
b. under 104a the judge weighs the evidence and finds
whether the required preliminary facts exist whom
the judge believes is crucial
i. this offers a more robust screen between the
testimony and the jury
c. so what sorts of things do we want to screen
i. inflammatory statements should be screened
until we determine it falls within a hearsay
exception
ii. reason is that if we view this under 104b
then we allow the jury to first determine
whether it believes either Ward’s testimony
or Fortes’ testimony – if it does not believe
Ward’s testimony it still hears the
inflammatory testimony that Jemison
committed the crime – thus 104a allows the
judge to keep such evidence out of the jury’s
mind until he determines whom to believe
5. Southern Stone v. Singer
a. Nature of case – P attempted to pierce corporate veil of D. P used letter
from its own counsel to Moore reciting the lawyers understanding of the
situation as related by Moore – Ds appeal on the basis of the prejudicial
effect of the letter – P argues that the letter is admissible under 801d2B
b. QE – Letter from corporate counsel to D relating what D had said about
Singer to the corporate counsel

23
 c. Rule – The mere failure to respond to a letter does not indicate an
adoption unless it was reasonable under the circumstances for the
sender to expect the recipient to respond and to correct erroneous
assertions
d. Reasoning
i. Just because the letter requested D to respond if corrections had to
be made did not make the D adopt what was in the letter
ii. Court thought that the circumstances surrounding the letter did not
warrant a reasonable expectation for response
iii. the Ps needed to lay a better foundation to introduce the letter
under 801d2B
iv. Two hearsays in the letter
1. the statement of the corporate counsel
2. Moore’s purported admissions
6. Miller thinks it is important to look at all the facts in these situations to determine
why exactly the D would not contradict the other persons statement
xii. Authorized Admissions
1. Where the declarant was an agent or servant of the party against whom the
out of court statement is offered
2. FRE 801(d)(2)(C) A statement is not hearsay if—
a. The statement is offered against a party and is (C) a statement by a person
authorized by the party to make a statement concerning the subject
3. CEC § 1222 Authorized admission
a. Evidence of a statement offered against a party is not made inadmissible
by the hearsay rule if:
i. (a) The statement was made by a person authorized by the party to
make a statement or statements for him concerning the subject
matter of the statement; and
ii. (b) The evidence is offered either after admission of evidence
sufficient to sustain finding of such authority or, in the court's
discretion as to the order of proof, subject to the admission of such
evidence.
4. FRE implies that the judge under 104a, admissibility, the judge determines
whether there was authority
5. The CEC may make it more difficult to get the statement in because of § 1222(b)
6. The FRE seems to imply that an admission by an agent may be used against the
principal even if the statement was not intended to be heard by third parties
7. The CEC in using the language of “for him” implies that the statement need be for
third persons only
8. FRE allows a statement made by an agent to the employer to be admissible
9. CEC does not allow an agent’s statement to the employer to be admissible
10. Hanson v. Waller
a. Nature of the Case – Wrongful death case where D ran over the deceased
of P

24
 b. QE – Letter from P’s first attorney to D’s attorney discussing how D could
not have seen the deceased if the P had been in front of the truck when the
light turned green
c. Rule – FRE 801d2C
i. An attorney does have authority to make admissions on behalf of
his client which are directly related to the management of litigation
11. Examples of agents and employees who are authorized
a. president of corp
b. VP for product development for product development
c. press agent
d. sales rep
e. lawyer retained to represent that party in litigation re litigation
f. family member appointed by family re family tragedy
12. Examples of no authorize
a. spouse for spouse
b. accountant for client
c. laborer for employer
d. driver for employer
13. Other issues
a. there is no express requirement under the rule as to when, where or to
whom the agent is authorized to speak
xiii. Agent and Employee Admissions
1. FRE 801(d)(2)(D)
a. Admission by party-opponent. The statement is offered against a party and
is
b. a statement by the party's agent or servant concerning a matter within the
scope of the agency or employment, made during the existence of the
relationship
2. CEC § 1224, 1225
a. § 1224 - When the liability, obligation, or duty of a party to a civil action
is based in whole or in part upon the liability, obligation, or duty of the
declarant, or when the claim or right asserted by a party to a civil action is
barred or diminished by a breach of duty by the declarant, evidence of a
statement made by the declarant is as admissible against the party as it
would be if offered against the declarant in an action involving that
liability, obligation, duty, or breach of duty.
3. The policy behind § 1224 is substantive, it wants to allow the same evidence used
to prove derivative liability should be able to prove primary liability in order to
not protect the employer and to promote respondeat superior
4. The FRE and CL does not adopt this same policy
5. Mahlandt v. Wild Canid Survival & Research Center
a. Nature of the Case- Child was walking along neighbors fence, child
somehow ended up on other side of the fence where a wolf was chained.
Child suffered injuries but the issue is whether the wolf caused the injuries
or the child crawling under the fence. Homeowner was sued personally

25
 and the company he worked for was sued because he was housing the wolf
for job purposes
b. QE –
i. Note left by Poos on bosses door stating that Sophie bit child
ii. Statement made directly to boss from Poos stating Sophie bit child
iii. Director minutes discussing Sophie biting child
c. Analysis:
i. Note left by Poss is admissible against Poos as a direct admission
and against the Center because Poos was agent of Center and made
in his official capacity. However, it is not admissible against
Center under 801d2C because Poos was not authorized to make the
statement
ii. Statement made by Poos to boss falls under same analysis
iii. The note of director minutes are admissible against the Center
under 801d2C because the directors and officers are authorized to
make such a statement but not against Poos because they were not
authorized to make a statement on his behalf nor were they his
agents
iv. In house statements – statements made in-house are not
necessarily 801d2C statements because not all employees are
authorized to make statements concerning a particular topic.
v. Personal knowledge – personal knowledge is not a necessary
predicate for a statement made by the declarant/agent to have
personal knowledge of the subject
vi. Last issue is extent to which a judge can exclude evidence under
801d2C under FRE 403
1. court found that the evidence of the minutes was okay to be
excluded because it was of little probative value, limited
admissibility, repetitive nature
6. Sea-Land Service v. Lozen International
a. Nature of Case – Contract dispute regarding damages over untimely
delivery
b. QE – An email by D’s employee that was passed on to another D
employee and then forwarded to P
c. Trial court excluded evidence because P makes no argument nor provides
any evidence as to the identity of the sender and the sender’s title
d. Analysis:
i. Court found that email had electronic signature identifying author
and title and concerned a matter within the scope of his
employment
ii. Found that the forwarded email from Martinez fell within 801d2B
because her message was an adoption of the truth and further that
she sent the email to P under the scope of her employment and was
thus admissible under 801d2D
xiv. Co-Conspirator Admissions
1. Common law recognizes the basic elements of the FRE and CEC

26
2. FRE 801(d)(2)(E) - A statement is not hearsay if—
a. The statement is offered against a party and is (E) a statement by a
coconspirator of a party during the course and in furtherance of the
conspiracy.
b. CEC § 1223 - Evidence of a statement offered against a party is not made
inadmissible by the hearsay rule if:
i. (a) The statement was made by the declarant while participating in
a conspiracy to commit a crime or civil wrong and in furtherance
of the objective of that conspiracy;
ii. (b) The statement was made prior to or during the time that the
party was participating in that conspiracy; and
iii. (c) The evidence is offered either after admission of evidence
sufficient to sustain a finding of the facts specified in subdivisions
(a) and (b) or, in the court's discretion as to the order of proof,
subject to the admission of such evidence
3. Elements: Must walk through these elements in analyzing whether this exception
applies
a. In furtherance of . . .
i. a conspiracy
1. agreement
a. express agreement not required
b. tacit agreement may be inferred from conduct
c. details of the agreement are unimportant
2. between two or more persons
a. withdrawal from conspiracy is necessary to not be
inculpated by the conspiracy
3. with a common purpose
a. achievement of objectives ends the conspiracy
b. arrest of members ends conspiracy
c. frustration of objective & arrest of some members
does not necessarily terminate the conspiracy as to
the remaining members
4. overt act by one conspirator in furtherance
ii. Concealment phase
1. generally the concealment does not imply that the
conspiracy continues even after the wrongful act
2. but it may be proved as an actual objective or as to
achievement of the unlawful objectives
3. minority view – cover-up conspiracy implied as a matter of
law
iii. ask whether the statement was actually made in furtherance of
1. a statement to the cop after the fact would not be in
furtherance of
iv. reason for the furtherance requirement

27
 1. reliability – we want some requirements that foster
reliability and statements made in furtherance of engender
reliability
2. limits the range of admissible statements – keeps the
exception in manageable bounds
3. Minority rule – Georgia does not require a statement made
in furtherance of
v. The Key to determining in furtherance of is the declarants purpose
for making the statement
1. examples: recruiting new members, securing help,
encouraging members, keeping members informed,
allaying fears of members, keeping accurate books
2. declarant’s purpose is not defeated if the hearer has an anti-
conspiracy motive
3. Disqualifyign purposes
a. gossip
b. mere narratives
c. boasting
d. confession to law enforcement
b. During the course of the conspiracy
i. declarant in the conspiracy when statement made
ii. Party opponent in the conspiracy when statement made, or joined
thereafter
iii. focus is on the actus reus of the wrongful act to determine if the
statement was made during the course of the conspiracy
4. Not Elements
a. Statement need not be made under circumstances guaranteeing reliability
b. Acievement of conspiracy’s objective is not required
c. Exception is available in both civil and criminal cases
d. Need not be one of the charges or claims
i. the exception if available if the evidence is there to build the
foundation for a conspiracy
5. Rationale
a. Agency law
i. but this rationale has pretty much been discredited
b. Reliabiltiy
i. but some commentators say that there is no reason to think that
criminals are truthful
ii. but realibility is not an element of the exception
c. Probative need
i. Miller thinks this is the best rationale for the exception
6. FRE allows the party to not just be a co-conspirator but also a joint venturer n the
case where no conspiracy has been charged
7. Alternative uses
a. Nonhearsay uses may be used; examples
i. overt acts

28
 ii. circumstantial evidence of agreement
8. Under FRE the court shall consider the contents of the declarant’s statement
in determining the existence of a conspiracy and the participation therein of
the declarant and the party against whom the statement if offered
a. but the court may not rely entirely on such a statement in determining the
existence of the conspiracy
9. Under CEC § 1223 the jury decides foundational facts, but under the FRE 104 the
judge decides the foundational facts
10. Under CEC § 1223 the judge does have to explain to the jury its role in
determining the foundational facts as it relates to the exception but under the FRE
the jury is not given a limiting instruction
11. Bourjaily v. United States – Lonardo made statement on phone to FBI agent
stating that he intended to sell the drugs to his “friend” and that his friend would
be waiting in the parking lot after the FBI sold the drugs to Lonardo and that
Lonardo would then drop the drugs in his “friends” car
a. QE – the telephone conversation where Lonardo discussed how his
“friend” would be involved in distributing the drugs
b. Issue:
i. Must a court determine the existence of a conspiracy on
independent evidence aside from the supposed hearsay
ii. what quantum of proof is sufficient to determine the existence of a
conspiracy under 104
c. Rule:
i. the quantum of proof necessary for a judgment to make a
preliminary finding of a conspiracy under 104 for purposes of
801d2D is simply a preponderance of the evidence
ii. Hearsay may not bootstrap itself into proving the existence of a
conspiracy, some independent proof must be given for a
preliminary finding of a conspiracy
d. Analysis:
i. Court said that even though co-conspirators statements are
unreliable, a court must be allowed to consider them for their
evidentiary worth
1. in this case co-conspirtators statements coupled with the D
actions strongly suggest a conspiracy
c. Spontaneous and Contemporaneous Statements (Hearsay allowed because we have faith in the
subject matter of the statement, thus we have faith in the reliability of the statement)
i. FRE 803(1)-(2) The following are not excluded by the hearsay rule, even though the
declarant is available as a witness:
1. (1) Present sense impression. A statement describing or explaining an event or
condition made while the declarant was perceiving the event or condition, or
immediately thereafter.
2. (2) Excited utterance. A statement relating to a startling event or condition made
while the declarant was under the stress of excitement caused by the event or
condition.

29
 ii. CEC § 1241 - Evidence of a statement is not made inadmissible by the hearsay rule if the
statement:
1. (a) Is offered to explain, qualify, or make understandable conduct of the declarant;
and
2. (b) Was made while the declarant was engaged in such conduct.
iii. CEC § 1240 – A statement that purports to narrate describe or explain an act condition or
event perceived by the declarant; and, was made spontaneously while the declarant was
under the stress of excitement caused by such perception
iv. Analysis:
1. FRE 803(1) (presence sense impression)
a. Contemporaneity is the key but a slight lapse in time is allowable
b. under the circumstances, misrepresentation is not a danger with such a
statement because the shortness in time removes the danger of insincerity
and ambiguity
c. the risk of faulty memory is also removed because the contemporaniety of
the statement reduces faulty memory
d. the risk of perception is also removed because there are no factors that
would cloud perception, i.e. excitement, scared, etc.
2. FRE 803(2)
a. spontaneity is the key
i. the standard of measurement is the duration of the excitement
b. under this theory the circumstances create a condition where the declarant
in unable to hinder his speech through conscious fabrication
3. Under both rules
a. The declarant must have personal knowledge of the events
b. participation in the event is not required, observation may be sufficient
c. in some circumstances the statement itself may be proof of the statement
causing event
i. if the declarant is an unidentified bystander the cases will likely
not uphold that the statement alone is sufficient
d. Subject matter
i. under (2) the allowable subject matter of the statement is broader
than in (1), hence the use of the word “relate” in (2)
4. How are the CEC § 1241 and FRE rules different and similar
a. The time frame when the statement is made is different
b. FRE says the statement must be used to describe in the CEC it is used to
explain
c. CEC uses the statement to make understandable the conduct of the
declarant whereas under FRE it is used to explain an even or condition
d. Under CEC the declarant must be engaged whereas under FRE the
declarant perceived the event
5. The CEC § 1241and FRE are totally different
a. The purpose of the CEC is to allow hearsay to be used to explain the
declrarant’s conduct
b. Miller says that 1241 really has nothing to do with the FRE
6. Spontaneity

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 a. what are the differences between § 1240 and 803(2)
i. FRE in using the language of “relating to” is broader than the CEC
requirement of “narrating, describing, or explain an act”
1. for example – a truck driver under the FRE could say
immediately after collision and say “I was in a hurry to
make a delivery for my boss”
a. this does not describe, narrate, etc. but it does
“relate to” the event and could therefore be used to
prove vicarious liability
ii. CEC also has requirement that the statement be made
“spontaneously” – this word means that the statement cannot be
induced from an outside source - but Miller does not think that
spontaneity has much meaning apart from the FRE
7. Risks with Spontaneous statements
a. ambiguity – excited persons do not necessary express themselves clearly
b. insincerity – theory is that there is no risk because if made spontaneity
then there is no filter
i. but if the statement is made while the declarant is made when
calmed down then there is a risk that the declarant can be in a state
of mind to fabricate
c. memory – no risks if the statement is made right after the event, but if the
statement is made several hours after the event but while the declarant is
still excited then there may be more risk
d. perception – there is a greater risk of faulty perception because of the
excitement
8. Subjectivity of excitement
a. if a person is truly upset then it doesn’t matter how long the upsettedness
continues, therefore there is no objectivity as to how long the excited state
of mind can last
b. thus the question of excitedness is a question of fact
v. United States v. Obayagbona
1. Nature of case – D guilty of selling drugs
2. QE – Tape recording of undercover FBI agent 2 minutes after being arrested but
14 minutes after the drug transaction – stating that the D had handed him the
heroin
3. Rule:
a. Under FRE 803(2) – the court must consider two things
i. was there an occurrence or event sufficiently startling to
render inoperative the normal reflective thought processes of
an observer
ii. the statement must have been a spontaneous reaction to the
event and not the result of reflective thought
b. Under FRE 803(1)
i. precise contemporaneity is not possible
ii. thus a relatively short period after the event falls within the
scope of “immediately after”

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 iii. near contemporaneity is sufficient
c. Analysis:
i. Law enforcement officers involved in the arrest may also make
excited utterances
ii. Typically, as in this case, statements can be made under 803(1) and
(2)
vi. State v. Lee
1. QE – Statements made by victim, not present at trial, on a 911 recording
indicating that her husband had hit her, had a knife and was yelling
a. other testimony was from cop
2. Rule – There were admissible under 803(2)
3. Issues:
a. The husbands statements in the background can get in as a personal
admission
vii. Bemis v. Edwards
1. QE – Statement describing D’s beating the shit out of the P – declarant of
statement gave it in a 911 call but there was doubt as to whether the declarant
actually observed the incident
2. Rule – The declarant’s statement, for purposes of 803(1)-(2) must be based on
first hand knowledge and cannot be relayed to him by a third party
d. State of Mind
i. Generally
1. FRE 803(3) - Then existing mental, emotional, or physical condition. A
statement of the declarant's then existing state of mind, emotion, sensation, or
physical condition (such as intent, plan, motive, design, mental feeling, pain, and
bodily health), but not including a statement of memory or belief to prove the fact
remembered or believed unless it relates to the execution, revocation,
identification, or terms of declarant's will.
2. CEC § 1250 – Statement of declarant's then existing mental or physical state
a. Subject to Section 1252, evidence of a statement of the declarant's then
existing state of mind, emotion, or physical sensation (including a
statement of intent, plan, motive, design, mental feeling, pain, or bodily
health) is not made inadmissible by the hearsay rule when:
i. (1) The evidence is offered to prove the declarant's state of mind,
emotion, or physical sensation at that time or at any other time
when it is itself an issue in the action; or
ii. (2) The evidence is offered to prove or explain acts or conduct of
the declarant.
iii. (b) This section does not make admissible evidence of a statement
of memory or belief to prove the fact remembered or believed.
3. CEC § 1251 - Statement of declarant's previously existing mental or physical
state
a. Subject to Section 1252, evidence of a statement of the declarant's state of
mind, emotion, or physical sensation (including a statement of intent, plan,
motive, design, mental feeling, pain, or bodily health) at a time prior to the
statement is not made inadmissible by the hearsay rule if:

32
 i. The declarant is unavailable as a witness; and
ii. The evidence is offered to prove such prior state of mind, emotion,
or physical sensation when it is itself an issue in the action and the
evidence is not offered to prove any fact other than such state of
mind, emotion, or physical sensation.
4. CEC § 1252 - Restriction on admissibility of statement of mental or physical state
a. Evidence of a statement is inadmissible under this article if the statement
was made under circumstances such as to indicate its lack of
trustworthiness.
5. Differences between FRE and CEC
a. it appears that the FRE fully codifies Hillmon such that statements of
future intent may be used to prove to actions of others
b. CEC appears only to allow the declarant’s statement of intent to prove the
declarant’s actions and not that of another
c. the CEC counterpart of 803(3) is § 1252 but this is much broader in giving
judge discretion because of the language of “indicate lack of
trustworthiness”
i. thus, under CEC is it important to characterize the statement as
either an explicit declaration of the declarant’s state of mind or a
circumstantial statement of state of mind because if it is an explicit
statement and it lacks trustworthiness, it will not get in CA
whereas in FRE the statement will get in either way.
ii. In CA an explicit statement could not be characterized as a
statement of circumstantial evidence of the declarant’s state of
mind
6. Relevancy analysis
a. Example:
i. testator’s statement that he intends to favor Harold as used to
interpret his will
1. statements made prior to making the will or after making
the will may be relevant to determine the actual intent of
the will because a present state of mind is relevant to prove
a past or future state of mind
a. reason is that intent or feeling is typically not
fleeting
ii. State of PSOM offered to prove another person’s past conduct
1. Issue: Who hit John? Evidence: the day after John was hit,
John said, “I am afraud of Mary”
a. inference that John’s fear probably had an external
source and that source was Mary hitting him
b. this PSOM may survive the hearsay objection, the
use of the hearsay that John’s fear had an external
source gives the statement questions of reliability
and ambiguity
7. Similarities

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 a. then existing state of mind, Miller refers to this as present state of mind
when the statement was made
8. Declarant’s State of Mind
a. DSM may be used as a nonhearsay use or hearsay use
i. Nonhearsay
1. Cindy is my dreamboat
2. Bob is worthless jerk
3. 9 squared is 81
4. Aspen if a fun place
ii. Hearsay
1. I love Cindy
2. I despise Bob
3. I plan to go to Aspen
b. Risk Analysis
i. nonhearsay risks of “Bob if a worthless jerk”
1. there are no risks of memory or perception but there may
be risks of sincerity and ambiguity
ii. hearsay risks of “I despise Bob”
1. no issue of memory or perception
2. but there is a risk of sincerity and ambiguity
iii. thus both uses have the exact same risks
9. Why is an exception created for this state of mind when CSEOM could be used as
non-hearsay
a. hearsay risks are low
b. statements of PSOM are usually spontaneous
c. Analogy to FRE 803(1) present sense impression (be sure not to confuse
these) (803(3) does not explain external events)
d. special need for this kind of evidence
10. Harris v. United States
a. QE – testimony of D told to his parole officer and counsel indicating that
he thought the gov’t was trying to set him up
b. Analysis
i. Court found that the statement of D that he “believed” the gov’t
was trying to set him up was hearsay because D was trying to
prove the fact as the matter asserted
ii. Court found that statement that “the government is trying to set me
up” could have a non-hearsay use because as CEOSM
c. Gov’t tries to argue that the statement should be excluded based on severe
reliability
i. but Court responds that hearsay exceptions are categorical and a
statement either is or is not excluded and therefore weighin
reliability is not relevant
d. Basically under the FRE it does not matter how the statement is
characterized because either way it can come in as a hearsay
exception regardless of reliability, or it can come in as non-hearsay

34
 ii. The Hillmon Doctrine – Statement of declarant’s intentions may be used to prove the
doing of the act intended
1. Mutual Life v. Hillmon (whose body was it)
2. Shepard v. United States
a. Nature of Case
i. D was convicted of murdering his wife by poison
b. QE – Statement made by decedent to nurse claiming that her husband had
poisoned her whickey. – Prosecution wished to use the statement to prove
not the declarant’s state of mind but as actual evidence that he poisoned
her
c. Rule – Statement of declarant’s state of mind may not be used to
prove the doing of an act in the past which led to the declarant’s state
of mind, particularly where the past act was done by someone else
d. Analysis
i. Court said that the evidence may have been used for the very
narrow purpose of proving the declarant’s state of mind
ii. Court distinguished between,
1. declarations of intention casting light upon the future,
which are permissible under Hillmon, and
2. declarations of memory pointing backward, if these
were allowed there would be purpose for the hearsay
rule
3. United States v. Houlihan
a. Nature of case: Murder, victim was found shot in the back of the head
b. QE – statement made by declarant/victim to his sister that he was going to
meet Billy Herd – prosecution wanted to use the statement as
circumstantial evidence against Herd
c. Analysis
i. Circuit split as to whether 803(3) has completely codified
Hillmon to the point where statements of the declarant’s
intention may be used to prove the conduct of others, or
whether 803(3) is limited such that statements of intent may
only be admissible to prove the actions of the declarant
ii. Court finds that plain language of 803(3) does not limit
Hillmon in any sense and therefore declarant’s statement of
intent may be admissible to prove the conduct of others
iii. Reasoning for the rule
1. state of mind provable by hearsay may not be used as the basis for an inference of
the happening of the event which produced the state of mind
2. but evidence of intention may be used to prove the doing of the act intended
iv. Look at question # 3 on page 121 and read the Rufo case to understand who fear of a past
act may be relevant
e. Injury Reports
i. FRE 803(4)
1. (4) Statements for purposes of medical diagnosis or treatment. Statements
made for purposes of medical diagnosis or treatment and describing medical

35
 history, or past or present symptoms, pain, or sensations, or the inception or
general character of the cause or external source thereof insofar as reasonably
pertinent to diagnosis or treatment.
ii. Analysis under 803(4) to distinguish it from other exceptions
1. Who made the statement
a. declarant
i. patient
ii. parent or analog on behalf of the patient
iii. stranger making statement for the patient
2. To whom was the statement made
a. physician
b. other health professional
c. lay person if the purpose is medical diagnosis and treatment
3. What was the subject of the statement
a. present symptoms
b. past symptoms
c. medical history
d. cause is so far as reasonable pertinent to diagnosis or treatment
i. thus any statement of pure fault are not exceptable
4. What was the purpose of the statement
a. medical treatment
b. medical diagnosis
i. examinations made for forensic purposes are also included in this
rule
c. non-medical – do not count
5. Was the statement pertinent to the purpose
a. yes or no
iii. Examples
1. statement of declarant’s then-existing state of mind
a. under the following laws
i. Common law – not okay
ii. CEC § 1250
iii. FRE 803(3)
2. statement of declarant’s past state of body
a. under
i. CL –no
ii. 1251 – okay
iii. 803(3) no
3. statement for purposes of medical diagnosis
a. under
i. CL –no
ii. CEC – no – except for statement made by minor victim of child
abuse
iii. 803(3) – yes
iv. 803(4) – yes
4. statement of external causation not pertinent

36
 a. not exceptable under rule
iv. Comments
1. Does not extend to statements that place fault on another person
2. Does extend to statements as to causation that may be pertinent
3. the statement need not be made to a physician
4. the rule allows statements made to physicians consulted with an eye for litigation
v. United States v. Joe
1. Nature of Case – Estranged husband ran over wife and another lady in a fit of
drunken rage
2. QE –
a. Statements made by wife to doctor that were admitted under FRE 803(3)
b. Statements included report to doctor by wife when she saw him for
treatment that she was
i. raped by her husband
ii. D suspected her of having an affair
iii. that if he ever caught her with another man that he would kill her
3. Analysis
a. Gov’t used the threat and rape testimony to prove the requisite mens rea
b. Threat statement under 803(3)
i. 803(3) would only allow the statement that wife was afraid
ii. 803(3) would not allow the statement that she was afraid of Joe
because she thought he might kill her
1. the latter is a statement of memory or belief used to
prove the truth of the matter asserted and is therefore
excluded under 803(3)
2. a statement of belief cannot be used to prove the fact
believed
iii. Who are the fear statements relevant
1. Not relevant because her belief is not part of the charge
against him
2. nor is her conduct part of the charge against her
3. Miller does not see how this fear is relevant
4. Always talk about why a statement is relevant
c. Rape statement under 803(4)
i. 803(4) does not normally allow statements to physicians assigning
fault to a particular person
ii. however, exception to this rule where a statement is made by a
child to a physician concerning sexual abuse
1. it is permissible because it is reasonably pertinent to
diagnosis or treatment
a. reason is that treatment by the physician includes
emotional and psychological treatment
iii. Court finds in this case the domestic abuse allows assignment of
guilt under 803(4) because such an identification is pertinent to
physician treatment
d. Threat statement under 803(4)

37
 i. Court found that the threat statement was not admissible under
803(4) because it does not fall within the statutory requirements
vi. Problem #1 pg. 126
1. Mother tells intake clerk in ER that boyfriend burned her daughter with cigarette.
He gets nasty when drinking
a. go through the analysis
i. who made statement
ii. whom was statement madeto
iii. what was the subject of the statement
iv. what was the purpose of the statement
v. was the statement pertinent to the purpose
b. in this case all the elements have been met to allow the statement
admissible
vii. Problem # 2 pg. 126
1. Miner and wife sues employer for causing respiratory illness – miner tells expert
doctor that lungs started to hurt ten years ago, just after he started working
a. go through analysis
b. in this case the statement is admissible even though it was not made for
treatment, it was made for diagnosis
viii. CEC provisions
1. Victim Statements
a. excited utterances
b. PSOM
c. Dying Declarations
d. § 1228 - Minor-sex crimes – corpus delicti
e. §1231 – Street terrorists
f. § 1360 – Minors-child abuse/neglect
g. §1370 – threat of injury
f. Recorded Recollection
i. FRE (803)(5)
1. Recorded recollection. A memorandum or record concerning a matter about
which a witness once had knowledge but now has insufficient recollection to
enable the witness to testify fully and accurately, shown to have been made or
adopted by the witness when the matter was fresh in the witness' memory and to
reflect that knowledge correctly. If admitted, the memorandum or record may be
read into evidence but may not itself be received as an exhibit unless offered by
an adverse party.
ii. CEC § 1237 - Past recollection recorded

1. (a) Evidence of a statement previously made by a witness is not made

inadmissible by the hearsay rule if the statement would have been admissible if
made by him while testifying, the statement concerns a matter as to which the
witness has insufficient present recollection to enable him to testify fully and
accurately, and the statement is contained in a writing which:
a. (1) Was made at a time when the fact recorded in the writing actually
occurred or was fresh in the witness' memory;

38
 b. (2) Was made (i) by the witness himself or under his direction or (ii) by
some other person for the purpose of recording the witness' statement at
the time it was made;
c. (3) Is offered after the witness testifies that the statement he made was a
true statement of such fact; and
d. (4) Is offered after the writing is authenticated as an accurate record of the
statement.
2. (b) The writing may be read into evidence, but the writing itself may not be
received in evidence unless offered by an adverse party.
iii. Differences
1. Writing – FRE will only allow writing to refresh memory, CEC is more broad, it
allows any evidence of a statement
2. By the witness – FRE requires only that the statement be made or adopted by the
witness – CEC appears to be more strict in that the witness must somehow have
made the statement or initiated the statement
iv. FRE 612 - Writing Used to Refresh Memory
1. Except as otherwise provided in criminal proceedings by section 3500 of title 18,
United States Code, if a witness uses a writing to refresh memory for the purpose
of testifying, either—
a. (1) while testifying, or
b. (2) before testifying, if the court in its discretion determines it is necessary
in the interests of justice,
2. an adverse party is entitled to have the writing produced at the hearing, to inspect
it, to cross-examine the witness thereon, and to introduce in evidence those
portions which relate to the testimony of the witness. If it is claimed that the
writing contains matters not related to the subject matter of the testimony the
court shall examine the writing in camera, excise any portions not so related, and
order delivery of the remainder to the party entitled thereto. Any portion withheld
over objections shall be preserved and made available to the appellate court in the
event of an appeal. If a writing is not produced or delivered pursuant to order
under this rule, the court shall make any order justice requires, except that in
criminal cases when the prosecution elects not to comply, the order shall be one
striking the testimony or, if the court in its discretion determines that the interests
of justice so require, declaring a mistrial.
v. CEC § 771 Production of writing used to refresh memory
1. Subject to subdivision (c), if a witness, either while testifying or prior thereto,
uses a writing to refresh his memory with respect to any matter about which he
testifies, such writing must be produced at the hearing at the request of an adverse
party and, unless the writing is so produced, the testimony of the witness
concerning such matter shall be stricken.
2. (b) If the writing is produced at the hearing, the adverse party may, if he chooses,
inspect the writing, cross-examine the witness concerning it, and introduce in
evidence such portion of it as may be pertinent to the testimony of the witness.
3. (c) Production of the writing is excused, and the testimony of the witness shall not
be stricken, if the writing:

39
 a. (1) Is not in the possession or control of the witness or the party who
produced his testimony concerning the matter; and
b. (2) Was not reasonably procurable by such party through the use of the
court's process or other available means.
vi. Comments on the rules
1. This exception is allowed because we have faith in the reliability inherent in a
record made while the event was still fresh in the declarant’s mind
vii. Refreshing Present Recollection
1. obtaining witness’ in-court testimony by using things that will help witness
remember
viii. Record of Past Recollection Recorded
1. A hearsay exception for out of court statements that witnesses make to help
preserve their perceptions
2. FRE 803(5) elements
a. witness must have once had knowledge of a matter
b. has insufficient recollection to testify fully and accurately
i. this is liberalization from common law which required complete
ignorance
c. any record of the matter
i. made when memory was fresh
ii. reflects knowledge correctly
3. To Impeach – if counsel tries to refresh witness’s memory by a record but witness
lies or fights counsel on it, the only way counsel can get the record into the record
to impeach is if the foundational elements of 803(5) are laid which may be tough
if witness doesn’t cooperate
a. under FRE third parties may be able to lay the foundation
ix. Fisher v. Swartz
1. Nature of Case – Breach of contract case for damages for labor and materials
provided
2. QE – P while testifying, refreshed his recollection by using an itemized statement
of charges made by him
a. P then admitted the statement into evidence – D objected
3. Analysis
a. Record of past knowledge may be used as either
i. a way to stimulate his past knowledge to testify but not to actually
use it as evidence, or
ii. having no present recollection even with the record, he may use the
record itself as evidence of his past knowledge
b. D argues that the writing may not be introduced into evidence because it is
hearsay
c. Court disagrees and says that the writing may be introduced into evidence
because the jury already has knowledge of the writing because the witness
testified about it and was cross-examined accordingly
i. Court says that it might be error but that it will always be harmless
error and so it may be admitted as a matter of law
4. The Fischer rule is contrary to the CEC and FRE

40
 x. United States v. Riccardi
1. Nature of Case – D was convicted of transporting stolen goods in commerce
2. QE
a. Testimony of Farid of her refreshed memory as to articles in her house
based on one handwritten note by her and a typed list of her articles made
shortly after itemizing them
b. Testimony of Berlow of his refreshed memory of Farid’s articles and their
value based on the same
c. The lists were not offered into evidence, just used to refresh memory
3. Analysis
a. This evidence is present recollection revived
b. Court finds that his evidence is okay even though Berlow was not
refreshed by his own writing because
i. the primary evidence is the oral testimony and it is not
important where that statement came from because the
opposing party can always question the veracity of the
testimony based on the purported recollection
4. How could we attack the validity of the witness’s refreshed memory
a. We can ask questions that a person who really remembered would be able
to answer
b. in this case we want to expose the witness in a way to show that the
witness did not really remember but only relied on the list, which in this
case was questionable
c. In this case the witness relied on the indictment but the court found that it
was okay because anything could be used to to refresh memory and the
opposing counsel can attack the veracity
xi. Choosing how to refresh recollection
1. while testifying or before testifying
2. or whatever works
3. whatever you are willing for the other side to see
4. whatever you are willing to be basis for CX
5. Documents from litigation file: loss of confidentiality
a. attorney-client communications
b. attorney work product
xii. Problem pg. 134
1. Eyewitness calls wife, tells her tag number & asks her to write it down which she
does
2. Eyewitness no longer remembers tag no.
3. Refresh present recollection?
a. yes, it may be used to refresh present recollection
4. Past Recollection Recorded?
a. Under CEC?
i. go through elements of § 1237
1. it satisfies the elements
ii. go through FRE 803(5)

41
 1. this hypo does satisfy 803(5) because the FRE requires the
witness to either make or adopt, not as the CEC allows the
witness to direct another but the disctinction is
inconsequential because the legislative history allows such
a statement to be made through a chain of participants
xiii. Difference between §1237 and FRE 803(5)
1. FRE requires the recording shown to reflect that knowledge correctly
2. CEC requires the witness himself to prove that the statement was a true reflection
of the fact
3. FRE is more broad by not requiring the witness himself to testify that it reflects
his knowledge corrently

g. Business Records
i. FRE 803(6) -Records of Regularly Conducted Activity.--A memorandum, report,
record, or data compilation, in any form, of acts, events, conditions, opinions, or
diagnoses, made at or near the time by, or from information transmitted by, a person with
knowledge, if kept in the course of a regularly conducted business activity, and if it was
the regular practice of that business activity to make the memorandum, report, record or
data compilation, all as shown by the testimony of the custodian or other qualified
witness, or by certification that complies with Rule 902(11), Rule 902(12), or a statute
permitting certification, unless the source of information or the method or circumstances
of preparation indicate lack of trustworthiness. The term "business" as used in this
paragraph includes business, institution, association, profession, occupation, and calling
of every kind, whether or not conducted for profit.

ii. CEC § - 1271

1. Evidence of a writing made as a record of an act, condition, or event is not made
inadmissible by the hearsay rule when offered to prove the act, condition, or event
if:
2. (a) The writing was made in the regular course of a business;
3. (b) The writing was made at or near the time of the act, condition, or event;
4. (c) The custodian or other qualified witness testifies to its identity and the mode
of its preparation; and
5. (d) The sources of information and method and time of preparation were such as
to indicate its trustworthiness.

iii. 803(6) important elements – memorize these elments

1. record – some form of immutable memorialization of information
2. event – opinions or diagnoses is also included in this rule which is different from
the CEC, this allows medical reports
3. timely
4. knowledge
5. RCBA – business does not mean “business” it means any organized enterprise
whether individual enterprises or government enterprises – must be regularly
conducted,

42
 a. business includes business, institution, association, profession, occupation
and calling of every kind whether or not for profit
6. Practice – it must be the regular practice of that business activity to make the
memorandum, not just a one time thing
7. Proof – all that is required is that the custodian of the records testify that the
record if kept in the normal course of business
a. this person must also be able to testify how the record is made and thus
must know about how the business is run
b. this element may also be satisfied by certification
8. Trustworthy – focus is on the circumstances that tend to show trustworthiness, not
of the person who made the record
iv. Difference between CEC and FRE
1. under CA the burden of proof as to trustworthiness is on the proponent of the
evidence
2. under the FRE the opponent of the evidence must show a lack of trustworthiness
v. Generally
1. This is a very powerful exception because it can cover multiple layers of hearsay
if each layer satisfies an exception
2. We trust this evidence because it is created such that there is unusual reliability
a. reason is that such records are
i. systematically checked
ii. made with regularity and continuity which produce habits of
precision
b. 803(6) does not require that foundation witnesses as to every step in
record process have to testify to fulfill the requirements of 803(6)
c. Statements of opinion are admissible under this rule because they are
commonly used in some business records
3. we a business record is offered against the party who made it, then it may also
admitted as an admission
4. State v. Acquisto
a. Nature of Case - D was charged with sexual assault, called as alibi’s his
mother and another lady – they claimed that he was at home at time of as
b. QE- called payroll clerk from place of employment of the alibi’s who
testified that according to the records the alibi’s were at work and not at
home
c. Analysis
i. D claims that the records were inadmissible because they failed to
comply with the common law rule that each human link in the
chain of a record must testify that the entry was made in the
regular course of business
ii. Court disagrees with common-law rule as unreasonable and in
light of present business practices unnecessary
vi. Qualifying Businesses
1. Keogh v. Commissioner of Internal Revenue
a. Nature of Case – D was convicted in trial court of under reporting his
income because he did not report all of his tip income

43
 b. QE – IRS showed into evidence a diary by a fellow blackjack dealer
which reported that dealers dialing tip earnings during the same time as D
worked at the casino
c. Analysis –
i. D argued that photocopied portion of Whitlock’s diary did not fall
under 803(6) because it was not a business record but a personal
record
ii. Court found that personal business records kept by Whitlock were
systematically and regularly maintained
1. he updated the diary every night he worked or shortly
thereafter
2. no evidence that Whitlock had suspect motives in making
the entries
3. Court did not think it was fatal that Whitlock’s ex-wife laid
the foundational elements for the diary to be reliable
iii. Criteria that allowed the diary to fall in the exception
1. personal record kept for business reasons
2. systematically checked and regularly and continually
maintained
3. motives
4. partial corroboration
d. Rule – So long as a record is kept in the course of a person’s own
business activity, occupation or calling and is shown to be reliable as
such then it is admissible
i. personal records kept for business reasons may be able to
qualify under 803(6) if they are systematically checked and
regularly and continually manintained
2. United States v. Gibson
a. Nature of Case – D was convicted of drug trafficking
b. QE – Account ledger from a co-conspirator implicating D in the
conspiracy
c. Analysis
i. D argued that the ledger was inadmissible because the records
were not kept in the course of regularly conducted business activity
ii. Court found that it was not fatal to the evidence that the record was
not entirely complete
iii. Court found it significant that the entries were made
contemporaneously to the transactions and that the person who
made the ledger relied on it
iv. in this case the court was only concerned about the
trustworthiness of the circumstances not of the trustworthiness
of those who made the record
v. Foundation
1. recorded most large transactions – not fatal that some
transactions were missing – but Miller thinks that this is

44
 a large argument against admissibility because it tends
toward incompleteness
a. number of balloons
b. cash receipts
2. Contemporaneous entries
3. Reliance on the records
vi. Arguments against admissibility
1. incompleteness
2. variety of purpose served by the ledger, unrelated
entries
3. entries made out of sequence
vii. Significance of this case is that 803(6) may be very broad
vii. Qualifying Records
1. Records that would appear to satisfy the business records exception but fail
nonetheless
2. Palmer v. Hoffman
a. Nature of Case – Railroad accident
b. QE – Statement of train engineer shortly before he died regarding the
accident to certain officials
c. Analysis
i. P’s tried to offer the statement as one made in the regular course of
business
ii. Court disagreed and found that just because a business makes a
recording of an employee’s statement regarding what happened
does not make it a statement made in the regular course of business
iii. A recording is not made in the regular course of business
where it is not made for the systematic conduct of the
enterprise, particularly where the recording is made with an
eye towards litigation
3. Lewis v. Baker
a. Nature of Case – P was injured in R.R. yard, contended that the result was
a faulty hand brake of one of the cars –
b. QE - accident report and inspection report were made as required – the
reports were signed and prepared under certain employees not personally
involved in the accident –
c. Analysis
i. P urged that Palmer is controlling so that the injury reports are not
made in the regular course of business because they were made
with an eye towards litigation and to exculpate the employer
ii. An accident or injury report may be considered to be made in
the regular course of business particularly where the making
of such reports is required
1. the true question is whether the reports have the
earmarks of reliability which establish trustworthiness
iii. In this case Court found that this case was distinguishable from
Palmer because the employees here were not personally involved

45
 in the accident and therefore did not have the motivation to
fabricate as the declarant in Palmer did
4. Reconciling Palmer and Lewis; the advisory committee notes
a. Miller thinks the difference between the two cases was that the Palmer
decision was written by Douglas; Miller does not think that the Palmer
decision is well reasoned and therefore may not necessarily be given much
weight – Miller thinks that the Lewis decision simply explains better the
rationale behind Palmer
b. FRE 803(6) deals with the problem of records or reports made where a
person might have a motivation to fabricate by assuming that records
made in the regularly conducted activity will be admissible but subject to
exclusion if the sources or information indicate lack of trustworthiness
c. The record does not have to be made by a person to be a participant in the
matter reported
5. How does 803(6) incorporate the two cases
a. “lack of trustworthiness” language encompasses class of cases like Palmer
and Lewis where the motivation of reporting employee may be suspect
viii. Sources of Information
1. All participants furnishing the information must act routinely under a duty of
accuracy with employer reliance on the result
a. but the rule does not apply where the informant does not act in the regular
course
2. Wilson v. Zapata Off-Shore Co.
a. Nature of Case – P sued employer for emotional distress caused by a
hostile work environment
b. QE – District Court refused to exclude hospital records with a statement
from P’s sister to social worker stating the P was a habitual liar
c. Analysis
i. The hospital records contained double hearsay, this is okay under
803(6) so long as all information supplied is supplied by an
employee acting in the regular course of business
ii. Second level of hearsay is the statement made by the sister since
she was not acting as an employee in the regular course of business
in giving her statement – she was not under business duty
1. Court found that the sister’s statement fell within the
803(4) exception and so was okay
a. but this Court doubted that the generality and
conclusory nature of the sister’s statement satisfied
the “reasonably pertinent to diagnosis or treatment”
i. the question is whether this clause modifies
the immediately preceding (cause or
external source) clause or the whole rule
b. this makes us ask the question of what does
“pertinent” modify and what does “purpose” mean

46
 i. if purpose the subjective purpose of the
declarant or the objective “purpose” of the
rule
d. Rule; Under FRE 803(6) multiple hearsay is excused if an employee
prepares a record with information supplied by another person so
long as that other person is acting in the regular course of business
i. the report must be made a person acting under a business duty
ii. if the information supplied is provided by an outsider and thus
not in the normal course of business then the recording is only
admissible if the outsiders statement falls within another
hearsay exception
3. Grogg v. Missouri Pacific Railroad
a. Nature of Case – P sued D employer for an injury allegedly resulting from
a faulty air hose
b. QE – District Court excluded evidence of a document prepared by a D
employee indicating that an air hose was faulty because that employee had
relied on hearsay in making the notation
c. Analysis
i. if both the source and recorder of the information contained in
the business’s document were acting in the regular course of
business, the multiple hearsay is excused under FRE 803(6)
d. Question:
i. Why would counsel want to use documentary evidence if it only
duplicates live testimony
1. because documentary evidence may be used by the jury in
the jury room
2. documentary evidence is also more credible in the minds of
the jurors
4. Problem pg. 148
a. Go through the 803(6) elements
i. question in this case is the RCBA element
1. is an unpublished author’s email to brother updating
brother on status a RCBA
2. this is debatable
3. for a published author the element is satisfied
4. for an unpublished author it is debatable but will probably
be satisfied
ix. Absence of Record
1. FRE 803(7)
a. Absence of entry in records kept in accordance with the provisions of
paragraph (6). Evidence that a matter is not included in the memoranda
reports, records, or data compilations, in any form, kept in accordance
with the provisions of paragraph (6), to prove the nonoccurrence or
nonexistence of the matter, if the matter was of a kind of which a
memorandum, report, record, or data compilation was regularly made and

47
 preserved, unless the sources of information or other circumstances
indicate lack of trustworthiness.
2. United States v. Gentry
a. Nature of Case – P claimed that there was a pin in an M & M candy that
he bought then admitted to lying about making that claim
b. QE – P objected to testimony of an M & M employee that there were no
other complaints in the record
3. Why is 803(7) in the rules
a. because the non-assertive statement exception in the rules is fairly elusive
and most judges don’t get it – it is a backup to the non-assertive exception
h. Public Records
i. Generally
1. we place trust in these records because we assume a public official will perform
his duty properly
ii. 803(8) – Public Records and Reports
1. Records, reports, statements, or data compilations, in any form, of public offices
or agencies, setting forth (A) the activities of the office or agency, or (B) matters
observed pursuant to duty imposed by law as to which matters there was a duty to
report, excluding, however, in criminal cases matters observed by police officers
and other law enforcement personnel, or (C) in civil actions and proceedings and
against the Government in criminal cases, factual findings resulting from an
investigation made pursuant to authority granted by law, unless the sources of
information or other circumstances indicate lack of trustworthiness.
iii. 803(9) – Records of Vital Statistics
1. Records or data compilations, in any form, of births, fetal deaths, deaths, or
marriages, if the report thereof was made to a public office pursuant to
requirements of law.
iv. 803(10) – Absence of Public Record or Entry
1. To prove the absence of a record, report, statement, or data compilation, in any
form, or the nonoccurrence or nonexistence of a matter of which a record, report,
statement, or data compilation, in any form, was regularly made and preserved by
a public office or agency, evidence in the form of a certification in accordance
with rule 902, or testimony, that diligent search failed to disclose the record,
report, statement, or data compilation, or entry.
v. CEC § 1280
1. Record by Public Employee
a. Evidence of a writing made as a record of an act, condition, or event is not
made inadmissible by the hearsay rule when offered in any civil or
criminal proceeding to prove the act, condition, or event if all of the
following applies:
i. (a) The writing was made by and within the scope of duty of a
public employee.
ii. (b) The writing was made at or near the time of the act, condition,
or event.
iii. (c) The sources of information and method and time of preparation
were such as to indicate its trustworthiness.

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vi. Concerns with subsection C of 803(6)
1. There is ample common law authority for the exceptions in (a) and (b)
2. (c) is more troublesome because of reliability
a. Factors that guide whether evaluative reports should be admissible
i. timeliness of investigation
ii. special skill or experience of the official
iii. whether a hearing was held and the level at which conducted
iv. possible motivation problems
3. the rule assumes admissibility as in 803(6) but leaves room for doubt
4. Evaluative reports are admissible only in civil cases and against the
government in criminal cases but not against the defendant in criminal cases
5. Elements of CA – follows the business records model
a. scope of duty of public employee
b. at or near the time
c. trustworthy
d. no custodian or regularity requirement
i. this is different from the business records exception
1. we do not think that the regularity requirement is the
hallmark of reliability for public records
6. Elements of FRE – not modeled after the business records exception
a. records must be of public offices or agencies
b. no custodian, regularity or timeliness requirement
c. three specific types
i. activities of office or agency
1. internal focus
ii. matters observed per legal duty
1. geological, climatology, maps, surveys
2. census records
iii. factual findings resulting from investigation
1. EPA, NIOSH, NIH
2. what does this mean and how does it relate to
trustworthiness
d. narrower than business records exception?
i. Miller does not think that it is narrower
7. Workings of 803(8)
a. can be any governmental agency, not necessarily federal government
b. Categorical Restrictions
i. Activities of the office or agency
1. trustworthiness
ii. matters observed
1. legal duty to observe and report
2. trustworthy
3. excluding in criminal cases, matters observed by police
officers and other law enforcement personnel
iii. factual findings

49
 1. must have legal authority to investigate – within scope of
duty
2. not against the accused in criminal cases
3. trustworthiness
8. Breadth of governmental information
a. Scientific
i. medical
ii. geological
iii. agricultural
b. Economic
c. Political
9. Major Issues
a. What is a factual finding per 803(8)(C)
b. Criminal case restrictions
10. Elements
a. applies to public offices or agencies – applies widely
b. three types of reports – important so far as the types of restrictions on
each one
i. activities of the agency
ii. matters observed
iii. factual findings
c. safety valve for untrustworthy
d. factual findings in(C) includes evaluative reports
e. criminal case restrictions on (B) and (C)
i. holding of Oates
1. law enforcement personnel
2. across the board exclusionary effect
ii. splits of authority re Oates
11. Beech Aircraft v. Rainey – Factual finding issue
a. Supreme held that opinions in reports setting forth factual findings are
admissible
i. Reasoning
1. Court also thinks that it is difficult if not impossible to
draw a distinction between fact and opinion
2. Court also thinks it is important that the factual findings
themselves are not admissible but reports setting forth
factual findings
3. legislative history
ii. limitations on allowing such reports with opinions or conclusions
1. the report must contain factual findings
2. the report must have sufficient trustworthiness in the eyes
of the court
12. United States v. Oates – Criminal case
a. Nature of Case – D was convicted of possession of heroin with intent to
distribute
b. QE-

50
 i. Testimony of Customs chemist who was substituting for the
chemist who conducted the actual tests, the testifying witness
introduced the handqritten and types report of the absent chemist
who analyzed the substances seized from D
c. Issue: D appeals on basis that introduction was barred as hearsay and that
it did not fit under 803(8), government contends that it fits under 803(6)
d. Rule – In criminal cases reports of public agencies setting forth
matters observed by police officers and other law enforcement
personnel and reports of public agencies setting forth factual findings
from an investigation made pursuant to authority of law will not
satisfy either the public records or business records exception where
such evidence is sought to be introduced against the accused
i. Shorter rule – police and evaluative reports not satisfying the
standards of 803(6)(B)-(C) may not qualify for admission
under 803(6)
e. Analysis
i. 803(8)(B) – this rule clearly prohibits the use in criminal
proceedings against the D, of reports of police or reports of other
law enforcement officials
1. Congress does not want police reports to be used against
the accused
2. Court found that “law enforcement official” was a very
broad term which encompasses any officer or employee
of a governmental agency which has law enforcement
responsibilitites
a. in this case the Chemist qualified as a law
enforcement official even he worked for the
Customs Agency and not a dedicated law
enforcement agency but with incidental law
enforcement responsibilities
b. Court found that this was consistent with 803(8)(C)
ii. 803(8)(C) – this rule clearly excludes from the hearsay exception
reports of factual findings if the government seeks to use those
findings against the accused in a criminal case
iii. 803(6) – here the government contends that the report is admissible
under the business records exception even though it is not
admissible under the government reports exception
1. Court finds that the intent of Congress was to make sure the
accused was confronterd by the accuser
a. even though 803(6) does not explicitly prohibit the
government using police reports as business records
against the accused in a criminal case, that same
prohibition in 803(8) carries over into 803(6)
13. United States v. Sokolow
a. Nature of Case – D was convicted of mail fraud

51
 b. QE – Documents produced by private company at direction of state
agency later used against D in a criminal trial
c. Analysis
i. Court notes how other courts have disagreed with the Oates
Court’s unduly broad interpretation of 803(8) extending the
limitations of 803(B)-(C) to other hearsay exceptions, namely the
business records exception
ii. This finds that the business records in this case were trustworthy
iii. but this case is significant because the producer of the record
testified in court
14. United States v. Brown
a. Nature of Case – D was arrested for possession of a firearm, D threw
firearm while being chased, cop retrieved the gun then had it entered into
found property where it was duly recorded.
b. QE – The property receipt of the gun when it was entered into found
property – contained such information as, case number, date, location
found, description of property – P used 803(6) to enter the receipt into
evidence
c. Analysis
i. D argues that 803(6) cannot be used as a backdoor to introduce
reports from law enforcement personnel
ii. Court says that the objective, mechanical nature of the receipt is
not the type of evidence sought to be excluded by 803(8)
iii. Congress was concerned about biased police reports in passing
803(8)
iv. that danger is not present where the police report in question
contains only, routine, objective observations with no inkling
of motivation to fabricate because such information is highly
reliable
15. United States v. Orozco
a. Nature of Case – Ds were convicted of possession of heroin – arrested
while stepping out of cars – Ds claimed that they had just returned from a
double date in L.A.
b. QE – data cards from the TECS indicating that the car they claimed they
were in in L.A. was in fact crossing the San Ysidro border that same night
c. Analysis
i. Court found that this evidence belonged in 803(8), not 803(6)
1. said that 803(8) is the business records exception for the
government counterpart to 803(6)
ii. In excluding matters observed by law enforcement officials
from the 803(8) exceptions, Congress did not intend to exclude
records of routine, nonadversarial matters.
1. the reason for excluding law enforcement observations
from the hearsay exception is because observations
made at the scene of the crime of the D are not as
reliable as observations by public officials in other cases

52
 because of the adversarial nature of the confrontation
between police and the defendant
2. Congress was concerned about prosecutors attempting
to prove their case in chief simply by putting into
evidence police officer’s reports of their
contemporaneous observations of crime
iii. this is cuts down the Oates restriction of not applying to bean
counting reports
i. Former Testimony
i. FRE 804(a) Declarant Unavailable
1. (a) Definition of unavailability. "Unavailability as a witness" includes situations
in which the declarant—
a. (1) is exempted by ruling of the court on the ground of privilege from
testifying concerning the subject matter of the declarant's statement; or
b. (2) persists in refusing to testify concerning the subject matter of the
declarant's statement despite an order of the court to do so; or
c. (3) testifies to a lack of memory of the subject matter of the declarant's
statement; or
d. 4) is unable to be present or to testify at the hearing because of death or
then existing physical or mental illness or infirmity; or
e. (5) is absent from the hearing and the proponent of a statement has been
unable to procure the declarant's attendance (or in the case of a hearsay
exception under subdivision (b)(2), (3), or (4), the declarant's attendance
or testimony) by process or other reasonable means.
2. A declarant is not unavailable as a witness if exemption, refusal, claim of lack of
memory, inability, or absence is due to the procurement or wrongdoing of the
proponent of a statement for the purpose of preventing the witness from attending
or testifying.
ii. 804(b) – Hearsay Exceptions
1. (b) Hearsay exceptions. The following are not excluded by the hearsay rule if the
declarant is unavailable as a witness:
a. (1) Former testimony. Testimony given as a witness at another hearing of
the same or a different proceeding, or in a deposition taken in compliance
with law in the course of the same or another proceeding, if the party
against whom the testimony is now offered, or, in a civil action or
proceeding, a predecessor in interest, had an opportunity and similar
motive to develop the testimony by direct, cross, or redirect examination.
iii. CEC § 240 – Unavailable Witness
1. (a) Except as otherwise provided in subdivision (b), "unavailable as a witness"
means that the declarant is any of the following:
a. (1) Exempted or precluded on the ground of privilege from testifying
concerning the matter to which his or her statement is relevant.
b. (2) Disqualified from testifying to the matter.
c. (3) Dead or unable to attend or to testify at the hearing because of then
existing physical or mental illness or infirmity.
d. (4) Absent from the hearing and the court is unable to compel his or her
attendance by its process.

53
 e. (5) Absent from the hearing and the proponent of his or her statement has
exercised reasonable diligence but has been unable to procure his or her
attendance by the court's process.
2. (b) A declarant is not unavailable as a witness if the exemption, preclusion,
disqualification, death, inability, or absence of the declarant was brought about by
the procurement or wrongdoing of the proponent of his or her statement for the
purpose of preventing the declarant from attending or testifying.
3. (c) Expert testimony which establishes that physical or mental trauma resulting
from an alleged crime has caused harm to a witness of sufficient severity that the
witness is physically unable to testify or is unable to testify without suffering
substantial trauma may constitute a sufficient showing of unavailability pursuant
to paragraph (3) of subdivision (a). As used in this section, the term "expert"
means a physician and surgeon, including a psychiatrist, or any person described
by subdivision (b), (c), or (e) of Section 1010.
4. The introduction of evidence to establish the unavailability of a witness under this
subdivision shall not be deemed procurement of unavailability, in absence of proof
to the contrary.
iv. CEC § 1291-1292
1. (a) Evidence of former testimony is not made inadmissible by the hearsay rule if
the declarant is unavailable as a witness and:
a. (1) The former testimony is offered against a person who offered it in
evidence in his own behalf on the former occasion or against the successor
in interest of such person; or
b. (2) The party against whom the former testimony is offered was a party to
the action or proceeding in which the testimony was given and had the
right and opportunity to cross-examine the declarant with an interest and
motive similar to that which he has at the hearing.
2. (b) The admissibility of former testimony under this section is subject to the same
limitations and objections as though the declarant were testifying at the hearing,
except that former testimony offered under this section is not subject to:
a. (1) Objections to the form of the question which were not made at the
time the former testimony was given.
b. (2) Objections based on competency or privilege which did not exist at the
time the former testimony was given.
3. a) Evidence of former testimony is not made inadmissible by the hearsay rule if:
a. (1) The declarant is unavailable as a witness;
b. (2) The former testimony is offered in a civil action; and
c. (3) The issue is such that the party to the action or proceeding in which
the former testimony was given had the right and opportunity to cross-
examine the declarant with an interest and motive similar to that which
the party against whom the testimony is offered has at the hearing.
4. (b) The admissibility of former testimony under this section is subject to the same
limitations and objections as though the declarant were testifying at the hearing,
except that former testimony offered under this section is not subject to
objections based on competency or privilege which did not exist at the time the
former testimony was given.
v. Generally
1. FRE 804
a. important to keep in mind whether the proceeding in which the exception
is invoked is criminal or civil
i. what matters is the nature of the second preceeding not the first

54
 b. the rule shows preference for appearance by the declarant, but if not, then
the rule prefers the testimony over its complete loss
c. Often times former testimony is admissible through another hearsay
exception such as prior inconsistent statement
2. Differences between unavailability under CEC § 240 and § 804(a)
a. FRE does allow the witness to be unavailable as a result of lack of
memory; CEC does not allow a witness to be unavailable for lack of
memory – but mental infirmity may allow lack of memory in certain
circumstances
b. FRE allows witness to be unavailable if he refuses to testify; CEC does
not have such an exception but judicial interpretation has allowed an
exception where the witness refuses to testify out of fear
c. CEC has been interpretated as not being the only way a witness is
unavailable as a result of wanting to expand the definition
3. United States v. Bollin
a. Nature of Case – D was convicted in participating in investement fraud
scheme
b. QE – Government introduced evidence a redacted version of his grand jury
testimony but the trial court refused to allow D to introduce the
unredacted portion of the transcript under either the completeness rule or
the former testimony exception
c. Analysis:
i. D claimed that he fell within the former testimony exception
because his 5th amendment assertion made him unavailable
ii. A party who invokes his 5th amendment privilege not to
testify against himself does not make himself “unavailable”
as a witness because he procured his unavailability
iii. D also argued that the rule of completeness required the court to
allow him to introduce the rest of his grand jury testimony
1. Court said that the rule of completeness only applied where
it would be misleading not to allow the completeness, court
said that in this case the grand jury testimony used by the
prosecutor was not misleading
4. Kirk v. Raymark Industries
a. Nature of Case – Widow sued Owens-Corning for manufacturing asbestos
that allegedly led to her husbands death
b. QE – D offered expert testimony saying that the asbestos it used did not
cause mesothelioma – P rebutted the expert testimony by reading a trial
transcript from a previous trial where D had expert witness testify that it
was possible for the type of asbestos used by D to cause mesothelioma
c. Analysis:
i. P contends that the admission was allowed as not hearsay or as
under the 804(b)(1) exception
ii. 801(d)(2)(C)
1. Court says that testimony of an expert witness is not
equivalent to testimony of an agent
iii. 804(a)
1. Court says that proponent of the evidence has burden
to prove that the witness is unavailable

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 2. in this case the P did not satisfy burden because
there was nothing in the record to show that
reasonable means were taken to procure the witness’
services
3. even though the witness was in another state,
absence of attempt to procure the witness will result
in the evidence failing the exception
5. Clay v. Johns-Manville
a. Nature of Case – Asbestos products liability
b. QE – Exclusion of evidence offered by P of a deposition of Ds former
physician, the deposition was taken in a previous case where physician
was acting as Ds physician
c. Issue: What is a predecessor in interest under 804(b)
d. Rule: A “predecessor in interest” is a party in the former suit who
had a like motive to cross-examine about the same matters as the
present party would have
e. However, some courts read the “predecessor in interest” language
differently such that is means the former party was in privity with the
present party
6. What is a predecessor in interest mean?
a. one interpretation is that it means the predecessor from whom the present
party received the right
b. the other interpretation is the rule from Clay
c. but there is a split of authority – majority finds for Clay minority goes
with privity
7. Criminal cases
a. in criminal case the party against whom the former testimony if offered
must have been a party to the prior trial – thus, to predecessor in interest
for criminal in criminal cases
i. but in cases where the government is the party it becomes fuzzy
whether one government agency will be considered the same party
in a subsequent case where a different government agency is the
party
8. United States v. Salerno
a. Court of Appeals originally allowed the D to use witness grand jury
testimony where that witness refused to later testify under the 5th
b. Reason for CA decision was that to exclude the grand jury testimony
would violate adversarial fairness
i. adversarial fairness is a factor because the government has the
power to determine whether the W will testify because it can
control whether the W will be immunized
c. Court rejects the adversarial fairness ruling because it is not within the rule
and therefore cannot be an exception to the rule based on adversarial
fairness
d. Court said that the issue is whether the prosecutor in the grand jury
testimony had the same motive to develop the testimony as in the trial

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 e. Court found that the district court found as a matter of fact that the
prosecutor did not have the same motive to develop testimony at the grand
jury that it does at trial because of his desire to maintain secrecy
i. Ds disagree and state that the district courts rule was one of law in
that the prosecutor will always have a different motive
f. Case was remanded for an actual determination of similar motive
9. 804(b)(1) HYPOs
a. P v.D for price of goods delivered. D claims breach of warranty
i. W testifies for P that the goods were of excellent quality
ii. judgment for P
iii. Reversed on appeal and remanded
iv. second trial W dies
1. options
a. do without Ws testimony
b. Use transcript of Ws testimony in trial #1
v. Does 804b allow the transcript to be used in trial #2
1. Question goes to opportunity and similar motive and in this
case it clearly satisfies the requirement
a. this would even satisfy the common law which
required identical parties and issues
vi. Miller says that this exception makes the choice that as between
no evidence and transcript evidence, evidence is the better choice
even over the lack of demeanor of the witness
b. Suppose D chose not to CX W in trial #1
i. under the rule it doesn’t matter but is this right
1. a contrary rule would influence attorney’s trial practice
2. the fact that a witness wasn’t cross-examined may speak
for itself
c. Suppose stakes in lawsuit have changed - $10,000 claim if now $1 million
i. yes, this may change the analysis under 804(b)(1)
ii. but Miller wants to know how to measure the motive to cross-
examine and thinks this is the reaon for the rule
1. is this witness there only for a preliminary matter or a
substantive matter
d. Suppose Ws testimony in trial #1 was more helpful to D than P, and in
trial #2, D offers transcript of Ws testimony from trial #1
i. this motive is the same
ii. but CEC is different
e. X v. D for purchase price of identical goods. D claims breach of warranty.
X offers transcript of Ws testimony in trial #1 of P v. D
i. the focus on this hypo is the second proceedings and the party
against whom the evidence if offered
1. motivation of D in these trials is the same even though the
parties are different
f. X v. Y for purchase price . . . Y claims breach of warranty. X offers
transcript of Ws testimony in trial #1 of P v. D
i. question in this case is whether Y is a predecessor in interest to D
1. Look at how CEC §§ 1290, 1291, 1292
a. these statutes focus on whether the party in the
former proceedings had the right to cross-examine
based only on the same motivation of the former
party
2. 804(b)(1)

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 a. rejected the CEC handling of this issue and used
“predecessor in interest” language
10. Problems pg. 173
a. Janitor testifies for newspaper regarding his being instructed by hospital to
dump toxic waste in action for libel against newspaper – in second trial
prosecutor wants to use former janitor testimony against hospital director
i. in the second case there may not be similar motive because the
director was not liable in the first
ii. Under FRE, in a criminal trial, the director would have had to be a
party in the first trial, not just a predecessor in interest
b. Mechanic testimony in criminal case against manager of gasoline station
that he dumped engine oil illegally at direction of manager – in second
case, civil case against gas station owner, may the mechanic’s testimony
be used against owner
i. yes, similar motive for manager to develop testimony, the owner is
a predecessor in interest to the manager because it is a civil case
and the owner had a like motive to cross-examine on the same
matters
c. The cases show the importance of distinguishing between the civil and
criminal cases
j. Dying Declarations
i. FRE 804(b)(2) - Statement under belief of impending death. In a prosecution for
homicide or in a civil action or proceeding, a statement made by a declarant while
believing that the declarant's death was imminent, concerning the cause or
circumstances of what the declarant believed to be impending death.
ii. CEC § 1242 - Evidence of a statement made by a dying person respecting the cause and
circumstances of his death is not made inadmissible by the hearsay rule if the statement
was made upon his personal knowledge and under a sense of immediately impending
death.
iii. Reasons
1. Traditional belief of rewards after death
2. Secular
a. may be important to look at stage in death acceptance was the person
in?
3. Reason to or not to allow - a legacy of knowledge upon which the world
might act
iv. See handout
v. Hypos for dying declaration
1. Case for negligent homicide
a. CL
i. yes
2. Case for attempted murder
a. ?
3. Action for wrongful death
a. CL
i. no
b. CA
i. yes
c. FRE
i. yes
4. Action for IIED

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 a. CL
i. no
b. CA
i. probably
c. FRE
i. yes
vi. Shepard v. United States
1. QE – V said that her husband had poisoned her. She was sick when she made
this statement but her sickness did not begin until two days earlier and she did
not die for several weeks thereafter
2. Rule – In order for a statement to be a dying declaration, there must be a
settled hopeless expectation
a. what is important is the state of mind and it must be supported by
evidence and not left to conjecture
3. Analysis –
a. at the time when she made her statement
i. doctors did not think she was dangerously ill
ii. her case was not hopeless
b. Court says that nothing in her condition when she made the statement
indicated that all hope was lost
c. Court did not think that the evidence supported a finding that she made
the statement in a state of mind of impending doom
vii. United States v. Sacass
1. QE – Testimony from cellmate of deceased who would testify that the deceased
said that the Greek had nothing to do with the job – D was convicted of bank
robbery
2. Analysis
a. Court would not allow this testimony under the dying declaration
exception even though the declarant made it shortly before dying
because the deceased did not die of a homicidal attack and the D
was not charged with homicide prosecutions
viii. Generally
1. The FRE is broader than the common law by allowing dying declarations in civil
cases but remains consistent with the common law that only allowed such
statements in homicide prosecutions
2. under FRE there must be a causal connections between the declaration and cause
of death
k. Declarations Against Interest
i. FRE 803(b)(3) – Statement against interest. A statement which was at the time of
its making so far contrary to the declarant's pecuniary or proprietary interest, or so
far tended to subject the declarant to civil or criminal liability, or to render invalid a
claim by the declarant against another, that a reasonable person in the declarant's
position would not have made the statement unless believing it to be true. A
statement tending to expose the declarant to criminal liability and offered to
exculpate the accused is not admissible unless corroborating circumstances clearly
indicate the trustworthiness of the statement.
ii. Generally
1. Reason for exception is the reliability of a person not making such a damning
statement unless true
2. Statement against a party offered his opponent is an admission under 801d2

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 3. requirement of corroborating circumstances require a showing beyond what the
accused can show of himself
4. Declarations against interest apply to anyone, not just the person against whom
they are introduced
5. different from admissions,
a. declarations against interest are obviously contrary to the interest of the
declarant at the time it was made
i. a reasonable person would make the statement only if true
6. ask about party requirement?
iii. Elements
1. statement against interest when made
2. so far against the declarant’s recognized interest that a reasonable person in
declarant’s position would have made the statement unless believing it to be true
3. CA – requires sufficient knowledge whereas might be a little more strict then
simply minimal knowledged, but this might be the equivalent to the FRE
“reasonable” person standard
iv. Recognized interests
1. pecuniary and propriety - all
2. civil liability – FRE + cec
3. penal – FRE
a. not recognized by the common law even though a declaration that take
away liberty inheres trustworthiness
i. but common law was concerned that declarations against penal
interest would most likely be used by a person to take the blame in
order to exonerate another
b. FRE solution to the penal declarations
i. when offered by the accused to exculpate
1. corroborating circumstances that indicate trustworthiness
are necessary
ii. when offered against the accused
1. in this situation there are issues of whether the declaration
violates the confrontation clause
2. this question is still up in the air but the 2000 proposals
would require that the evidence offered against the accused
be supported by particularized guarantees of
trustworthiness
3. but this is on hold until the Crawford decision
4. social (risk of being made an object of hatred, ridicule or social disgrace) - CEC
v. Williamson v. United States
1. Can a statement against interest made by a declarant be used as evidence to
inculpate another defendant
2. Issue is whether the statement as a whole inculpates the declarant is admissible
or only that portion of the statement that inculpates the declarant – thus narrow
or broad interpretation
3. Ruling: the fact that a person makes a broadly self-inculpatory confession does
not make more credible the non-self-inculpatory parts – thus, the court adopts
the narrow view

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 4. Court says that when a self-inculpatory statement is made the court must look to
the context to decide if the statement if self-inculpatory or if it is an attempt to
shift blame
a. this Court adopts a narrow view but that may also allow a statement by
declarant that necessarily inculpates another accomplice as well
i. in this type of situation a balancing type approach may need to be
adopted
1. example
a. Joe and I robbed the bank
5. A statement within the meaning of 804(b)(3) is only that part of the
declarant’s testimony that includes self inculpatory statements and not the
broader narrative that is generally self-inculpatory
a. says that arrest statements inculpating others are less reliable because of
the declarant’s strong motivation to fabricate fault
6. Kennedy would adopt a broader approach
a. Thinks Court should first include all fact statements against penal interest
subject to two limitations
i. court should exclude collateral statement that is so self-serving as
to be unreliable
ii. also exclude the statement where the declarant had sufficient
motivation to obtain favorable treatment
vi. Problems pg. 184
1. H injured in car crash and says he’s not going to make it
a. H told S “D did not do the robbery, I did”
i. Dying declaration?
ii. Declaration against interest
1. maybe against social interest but that interest is only
protected under CA, not the FRE
2. maybe against pecuniary interest because his decedents will
not get the money
2. G told F that G helped D plan D’s robbery of the bank
a. ask how the insider knowledge theory could be used to get this statement
in
b. also ask about how allowing only the narrow statement would kill
relevance
l. Forfeiture by Wrongdoing
i. FRE 804(b)(6)
1. Forfeiture by wrongdoing. A statement offered against a party that has
engaged or acquiesced in wrongdoing that was intended to, and did, procure the
unavailability of the declarant as a witness.
ii. Court uses 104(a) preponderance of the evidence standard to determine if evidence is
sufficient to be shown to jury
iii. United States v. Peoples
1. Nature of Case – D convicted of murder
2. QE – gpvernment witness testimony about what the V said and would have
testified to at trial implicating D had D not allegedly killed V
a. prosecutor defending the statement said that the D murdered the witness
3. Analysis:

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 a. Court found that 804(b)(6) did allow the statement
b. Court gave limiting instruction that just because the court allowed the
statement did not mean that it believed that D caused the murder
c. Miller is concerned that the prosecutor’s statement was improper because
it was simply the prosecutor’s opinion
i. so the question is whether the jury was prejudiced by hearing the
statement of opinion
iv. Hypo
1. D kidnapped a child and held her for ranson. D knows that V told W that D was
involved in the kidnapping
2. D killed V in order to silence him
3. Is W’s testimony as to Vs statement admissible in prosecution of D
a. for kidnapping
i. most definitely
b. for murder of V
i. issue is whether V’s statement to W bout kidnapping could be used
in the murder trial since D only intended to silence V for purposes
of a kidnapping prosecution and not the murder prosecution – why
would D want to kill someone to silence V to testify about Vs
murder
ii. the Peoples decision upholds this use
v. Hypo
1. D was so distressed that from knowing that V had this information that he drank a
lot of alcohol
2. D then went out driving. He negligently ran down and killed a pedestrian in a
crosswalk who turned out to be V
3. Is W’s testimony as to V’s statement admissible in prosecution of D
4. The exception would not allowed here because D did not have the intent to kill V
vi. Big issue in this exception is whether the V’s statement involved a crime or wrongdoing
for which it is being used against the D – if the statement being used in a trial for D’s
conduct in actually procuring the unavailability of the witness then the question of
relevancy
m. Residual (Discretionary) Exeption
i. FRE 807 - A statement not specifically covered by Rule 803 or 804 but having equivalent
circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, if the
court determines that (A) the statement is offered as evidence of a material fact; (B) 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; and (C) the general
purposes of these rules and the interests of justice will best be served by admission of
the statement into evidence. However, a statement may not be admitted under this
exception unless the proponent of it makes known to the adverse party sufficiently in
advance of the trial or hearing to provide the adverse party with a fair opportunity to
prepare to meet it, the proponent's intention to offer the statement and the particulars of
it, including the name and address of the declarant.
ii. Elements
1. statement not specifically covered
2. equivalent circumstantial guarantees of trustworthiness
3. material fact – Miller says nobody pays attention to this
4. more probative on the point for which offered than any other reasonably
obtainable evidence
5. interest of justice

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 iii. United States v. Laster
1. Nature of Case – Ds arrested for manufacturing meth
2. QE – Business records from supplier of the raw material showing sales to D –
foundational elements laid down by government, not business, witness – did not
satisfy the foundational elements of 803(6) but court allowed it in under 807
3. Analysis:
a. Majority – close enough
i. took position that 807 allows hearsay evidence that is close
enough to another specified exception yet is equally trustworthy
and is more probative than any other evidence which the
proponent can procure through reasonable efforts
ii. thinks the exception says that if evidence is admissible under
another exception it should be admitted only under that exception
iii. but the analysis should not end if the evidence is found to fail
under a specified exception
b. Minority – near miss renders the evidence inadmissible under 807
i. thinks that 807 “not specifically covered” means that if evidence
fails to meet the foundational elements of a specified exception
then it cannot qualify under 807 – 807 is reserved for those
exceptional circumstances not at all covered by the exceptions
1. but in practice the dissent has become obsolete because
the residual exception is used very frequently under the
majority approach
ii. thinks “covered by” means that 807 does not apply where the QE
is of a kind specifically addressed by the enumerated exceptions
iii. 807 applies only to new and presently unanticipated situations
iv. Argument for the close enough theory
1. is something fails to meet a foundational element then it is no longer “specifically
covered” and therefore can be analyzed under 807
2. a contrary rule would result in litigation over what is “close enough” such that it
should be “specifically covered” by an existing rule
v. Is the residual exception good
1. THE FRE gives the judge more discretion whereas the CEC does not. Thus, the
residual exception gives a trial judge more protection from appellate review

Confrontation Clause

I. Confrontation Clause and Hearsay—Confrontation clause has no bearing in a civil case and also no
bearing in criminal case where its evidence by ∆ against π .
a. Issues dealing with Confrontation Clause limits on hearsay are divided into two categories; where
declarant testifies at trial and where the declarant does not testify
i. Available Declarant: Cross-Examination at trial
1. confrontation clause will be satisfied when the declarant testifies in cross-
examination
ii. Unavailable Declarant: Two-Pronged test
1. two pronged test to satisfy the confrontation clause – Roberts Test
a. unavailability of the declarant
i. the test was once rigorous requiring a showing that the
prosecutorial authorities made a good faith effort to obtain the
declarant

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 1. but this has largely been eroded for some hearsay
exceptions where it can be argued that the hearsay
statement is better evidence than the declarant’s own
testimony
b. reliability of the hearsay statement
i. reliability is presumed where the statement falls within a firmly
rooted exception, or
1. it is generally not difficult for an exception to be considered
deeply rooted
ii. the statement possesses particularized guarantees of
trustworthiness
1. ad hoc determination looking at the totality of the
circumstances at the time the statement was made
a. factors
i. spontaneity
ii. consistency of repetition
iii. mental state of declarant
iv. use of terminology unexpected of a child of
that age
b. A new Approach: Crawford v. Washington
i. Rule
1. If the evidence is testimonial the Confrontation Clause allows the evidence
only if
a. the declarant is unavailable and the defendant had the opportunity to
cross-examine the witness
i. testimony at a minimum is
1. prior testimony at a preliminary hearing, before a
grand jury, or at a former trial
2. statements made in a police interrogation
ii. testimony may also include
1. affidavits, custodial examinations, prior testimony that the
defendant was unable to cross-examine, or similar pretrial
statements that declarants would reasonably expect to be
used prosecutorially"; "extrajudicial statements . . .
contained in formalized testimonial materials, such as
affidavits, depositions, prior testimony, or confessions
2. Qualifiers
a. where the witness appears at trial and subject to cross-examination, the
Confrontation Clause places no restraint on the use of the witness’s prior
testimonial statement
b. Hearsay
i. Hearsay that is non-testimonial or that has been grandfathered in
1. business records is non-testimonial
2. co-conspirator declarations are non-testimonial
3. dying declarations have been grandfathered in
ii. Non-hearsay uses

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 1. the prior testimonial statement may also be used,
notwithstanding the Confrontation Clause, for purpose
other than proving the truth of the matter asserted
c. nontestimonial hearsay is apparently still to be analyzed under the Roberts
framework
i. nontestimonial hearsay may be admitted against criminal
defendants if it fits a firmly rooted hearsay exception or if a
particularized guarantees of trustworthiness appear
d. confrontation rights can be forfeited by misconduct under 804(b)(6)
ii. Questions left open
1. do we take a broad or narrow approach to “testimony”
a. if broad then it could be
i. A statement made knowingly to the authorities that describes
criminal activity
ii. A statement made by a person claiming to be the victim of a crime
and describing the crime is usually testimonial, whether made to
the authorities or not
iii. statements to private parties about the crime or not knowing that
the party is a law enforcement officer
b. if narrow then
i. those statements outlined in Crawford
ii. most courts are taking this approach
iii. Effects of Crawford on the hearsay exceptions
1. Crawford puts an end to the use of the against-interest exception to admit against
the defendant third-party statements to police describing obvious criminal acts, at
least where the declarant never testifies in a setting that permits defense cross-
examination
2. statements by the defendant himself are not excludable as "testimonial" when
offered against him under the admissions doctrine contained in FRE 801(d)(2)(A).
this includes adoptive admissions as well
3. Crawford calls into question the use of such standard hearsay exceptions as the
ones for excited utterances and medical statements, now codified in FRE 803(2)
and 803(4), to admit statements by victims of sexual and other assaults
describing the criminal acts in question
4. Crawford calls into question the use of the exceptions for excited utterances or
present sense impressions to admit 911 calls reporting apparent criminal acts
5. Crawford gives a constitutional green light to the use of statements offered under
FRE 801(d)(1)

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