Evidence Reading Notes

Evidence Reading Notes
Reading #1 (CB 1-24, Federal Rules of Evidence 101; 102; 103; 104(a); 401; and 402,
Problems 1.1 and 1.2, pg 16 CB)
• Motions in limine (evidentiary motions heard before trial, as opposed to during the trial)
• Trial Judge’s Authority
• The applicability of a particular rule of evidence often depends upon the existence of a
condition which the judge must determine (qualified physician? etc.)
• If the question is factual the judge will receive evidence both pro an con (rules of
evidence don’t apply here)
• Trial Judge’s Discretion
• Courts disregard errors that do affect the substantial rights of the parties (and the converse
is true). Courts differ on what is and is not harmless.
• When no objection was made at trial, the appellate court will reverse only if ti finds plain
error (a term not easily defined, but it means a big mistake).
• chances of reversal on the ground of an evidentiary error are slim
• United States v. Walton
• great deference is afforded to the trial court’s determination of the admissibility of
evidence because of the trial judge’s first hand exposure to the witnesses and the
evidence as a whole, and because of the judge’s familiarity with the case and ability to
gauge the impact of the evidence int he context of the entire proceeding.
• Banera v. City of Quincy
• Quincy is appealing jury verdict against the city. Verdict awarded Banera damages for
sexual harassment.
• One of Banera’s witness was Coletta (police officer who had a pending sexual
harassment case agains the police department). It was denied before trial that Coletta’s
testimony would be irrelevant or unduly prejudicial.
• During trial Coletta both described her treatment (as was expected and had been
allowed pre-trial) and was allowed, over objections of the defense, to say how she felt
about and assessed Bandera’s own allegations
• Her description of her own treatment was relevant, but her assessment of Banera’s
treatment was irrelevant was inappropriate opinion testimony (FRE 701 she wasn’t
qualified as an expert and did not give limited opinion) and shouldn’t of been
admitted.
• What is significant is that , FRE 103(a) states an objection resolved in limine need not be
restated during trial, and it was ruled that Coletta’s assessment was denied in limine.
• Defense counsel objected during the testimony, but seemingly on other grounds, but
had made relevance and prejudice arguments earlier
• FRE 103(a)(1) is clear that an objection’s grounds must be obvious to be
preserved.
• Defense council didn’t make clear objections to the second part of the testimony
• Whether Coletta’s assessment was probably harmless, but that is up for debate. But
debate alone is enough to bar reversal under the plain error doctrine (FRE 103(d)).
• Problem 1.1
• If the evidence was accepted only in plain error, not if it just affected the substantial
rights of the parties. Since no relevant objection was made at trial this high burden must
be met (see previous case for why the objection had to be the right kind).
• Problem 1.2
• Probably the plaintiff, but it is ultimately up to the judge as the rules are “scattered and
inconclusive”. FRE 104(a)
• Relevance/Irrelevance
• Irrelevant evidence should be excluded and relevant evidence admitted (with some
exceptions).
• evidence is relevant if it is rationally probative
• the standard is the items must make the case more probable than it would be without
the evidence (not every piece of evidence must be dispositive)
• Knapp v. State
• Knapp is appealing a judgment which found him guilty of first degree murder.
• Knapp offered testimony showing he was acting in self defense. He testified that he
had heard the deceased has clubbed and seriously injured an old man while
carrying out an arrest and that the old man had died. He said he was told this by
“some people around Hagerstown there. I can’t say as to who it was now.” State
then provided the old man died because of other reasons and there were no
bruises or marks on him. Knapp contends the states evidence was irrelevant
(question was whether Knapp heard the story, not whether it was true).
• The competency of testimony depends largely upon its tendency to persuade the
judgment
• the testimony was competent. the main issue was whether the story was heard.
whether the story was true has some bearing on whether it was heard. claim people
are more likely to tell the truth and so if the story is false it is less likely to be told.
• US v. Dominguez
• Relevant evidence is evidence “having any tendency to make the existence of any
fact that is of consequence…more probably or less probable than it would be without
the evidence.”
• This allows a chance of evidence where the piece tie into each other (in this case it
was a series of evidence about Dominguez’s gun).
• Government can introduce weak evidence (would of been better to present the gun
than evidence about it, but they don’t have to).
• State v. Larson
• Larson was convicted of negligent endangerment and is appealing. Larson was riding
a horse with Perry, horse reared, Perry was crushed and died shortly afterwards.
Larson was warned the horse was “hot blooded” and “inexperienced.” Larson’s blood
was measured and he was shown to have been higher than the amount allowed for
driving (.17 v. .08)
• Forensic expert showed Larson’s blood alcohol level to be higher than allowed for a
person driving a motor vehicle. Prosecution argued that Larson made mistakes cause
he was drunk.
• Larso argues blood alcohol level is irrelevant compared to a high-spirited young
horse. That doesn’t mean his blood alcohol level isn’t relevant (FRE 401). Larson’s
objection was therefore overturned.
• Probative force always related to the weakest link.
• What function does evidence law play in the civil and criminal justice system in the United
States?
• Regulates what can and cannot be submitted at trial, which informs both how the trial will
proceed and how the pretrial work of the lawyers will proceed.
• What is the test used in federal court to determine whether evidence is relevant?
• Evidence is relevant if it is rationally probative. The standard is the evidence must make
the case more probable than it would be without the evidence (not every piece of evidence
must be dispositive).
• Why does the federal evidence code (as well as all other evidence codes) exclude irrelevant
evidence? If a party wants to introduce irrelevant evidence what harm is caused?
• Clogs the process and dilutes the effect of important relevant evidence.
• Why shouldn’t all relevant evidence be admissible?
• Not all methods of evidence gathering are the same. Some are more reliable or more
ethical than others.
Reading #2 (24-38 and FRE 404,405) Probative Value and Prejudice

• Relevant evidence can be excluded for risk of unfair prejudice (undue tendency to suggest
decision on an improper basis [ie an emotional one]), confusion of issues, misleading the jury
or waste of time.
• Consideration should be given to the probable effectiveness or lack of effectiveness of a
limiting instruction, the availability of other means of proof may also be an appropriate
factor
• US v. Noriega (don’t want evidence with minimal probative value to shift focus of the trial)
• Noriega was charged with drug-related charges. He wanted to use classified information to
show he did intelligence work for the US and use this to explain his unexplained wealth.
US objected to disclosing why the US paid Noriega. US and Noriega differed on amounts
paid as well.
• Court held that operations Noriega engaged in were irrelevant, argued that tendency of
evidence to confuse issues before the jury out-weighted the probative value of the evidence.
This did let Noriega still show the amounts, time, source, and method of conveyance of
money he had received form he US. Noriega didn’t show the money at trial because he
claimed that it wouldn’t have appeared credible without details about the services he
performed.
• Appellate court believes there is probative value to why Noriega was paid, might help
explain the huge disparities about claims regarding how much he was paid (320k v 10mill).
However, this connection is tenuous and not too helpful especially considering the focus of
the trial would then shift to “geo-political intrigue.”
• US v. Flitcraft (cumulative evidence has less importance)
• Flitcrafts appealing convictions that they failed to file tax returns and false withholding
exemption certificates. Recognize they did these things, but claim they weren’t voluntary.
Mrs. Flitcraft said she trusted her husband that he had researched tax law and they didn’t
need to file (wages not income but exchange of money for time).
• Judge wouldn’t let Flitcraft submit the legal materials he relied on, but would let him testify
orally, Flitcraft claims this delegitimized his legal claims.
• In this case the value of presenting the actual documents would only have been cumulative
and would have little probative value and might only confuse the jury about the stasis of the
law.
• Abernathy v. Superior Hardwoods, Inc. (judge not required to allow evidence of little
probative value because effective cross-examination may later show its weaknesses)
• Abernathy was hit by a log that was dropped by a Superior Hardwoods forklift.
• President of Superior Hardwoods made a videotape years later to show how logs are
normally unloaded. Judge allowed showing of tape, but only without audio. Superior
Hardwoods claims that audio was necessary because ti shows Abernathy should have heard
the forklift beginning to unload the logs.
• While the noise seems relevant the tape has to meet standards of reliability, which it does
not. Rather than allowing bad evidence to be submitted and then have its weakness
revealed in cross examination the judge is allowed the discretion to refuse the evidence.
• United States v. McRae
• D killed his wife, admitted it, but claimed it was accidental.
• D objects to admission of the deceased and the death scenic because they might cause unfair
prejudice by being gross, distasteful, and disturbing. Court found the photos necessary to
establishing parts of the case, such as the positioning of the shooter and the victim.
• Relevant evidence is inherently prejudicial, but it is only unfair prejudice, substantially
outweighing probative value that can be dismissed. FRE 403 is not designed to permit the
court to even out the weight of the evidence to mitigate a crime, or to make a contest where
there is little or none.
• Old Chief v. United States
• Old chief arrested both for owning a gun after he’d been convicted of a crime with a
sentence of one year or greater and of being in a farcas. Old Chief didn’t want the court to
reveal the previous crime he’d been charged with (assualt causing bodily injury). Worried
about unfair prejudice.
• Main issue of the case is scope of discretion under FRE 403 and unfair prejudice.
• unfair prejudice speaks to the capacity of some concededly relevance evidence to lure the
fact finder into declaring guilty on a ground different from proof specific to the offense
charged. (which would certainly cover using a form bad act to create the impression of
bad character, see FRE 404(b) “evidence of other crimes, wrongs, or acts is nota
admissible to prove the character of a person in order to show action in conformity
therewith”)
• probative value can be determined in part by considering evidentiary alternatives and then
also by balancing probative v. prejudice for that specific piece of evidence
• so in this case, stating he had been convicted of a crime greater than 1 year in length
would be sufficient
• What about prosecution being able to chose their evidence? (Parr v. United States)
• this can be done by the prosecution as much to tell a story of guiltiness as to support an
inference of guilt, and there is a need for evidence to satisfy the juror’s expectations
about what proper proof should be
• In this case, as in any other in which the prior conviction is for an offense likely to support
conviction on some improper ground, the only reasonable conclusion was tha the risk of
unfair prejudice did substantially out-weight the discounted probative value of the record of
conviction and it was an abuse of discretion to admit the record when an admission was
available.
• (Dissent)
• FRE 105 provides that when evidence is admissible for one purpose, but not another, “the
court upon request, shall restrict the evidence to its proper scope and instruct the jury
accordingly.”
• Problem 2.1
• I’d assume so. This seems like a textbook example of proving that someone possessed a
gun by showing the gun.
Reading #3 (38-42, 703-10, 43-51, US v. Vayner .pdf)

• Conditional Relevance (still not sure on conditional relevancy v. logical relevancy)
• Conditional relevance is when the relevancy of an item of evidence depends upon the
existence of a particular preliminary fact (different from logical relevancy, e.g. evidence in a
murder case that accused on the day before purchased a weapon of the kind used in the
killing)
• judge does not ask whether the preliminary fact is actually true but whether a reasonable
jury could think so, given the other evidence in the case
• State v. McNeely
• Thompson testified about statements McNeely made to him in jail (that he strangled the
victim), Thompson was unable to identify McNeely at trial as the man who spoke to him
• When dealing with a matter of condiutional relevancy the judge determines whether the
foundation evidence is sufficient for the jury reasonably to find that the relevant condition
on which relevance depends has been fulfilled.
• court allowed evidence (guy speaking to thompson either said he was McNeely or was
representing McNeely, by time of trial McNeely had gained 25 pounds and shaved his
mustache)
• Problem 2.2
• Doesn’t matter whether judge believe defendant knew about the assault, what it matters is
whether the jury could reasonably believe this. If this piece of evidence is conditionally
relevant.
• Physical Evidence
• All physical evidence must be authenticated (sufficient evidence must be provided to allow
the fact finder to conclude that the evidence is genuine, this is like conditional relevance)
• Certain physical evidence (and forms of testimony) may be rendered inadmissible by the
best evidence rule (does not require that a part introduces the best evidence available on any
given point, instead it requires only that a party seeking to prove the content of a document
introduce the original)
• Real v. Demonstrative Evidence
• Real evidence are items that allegedly played some role in or were generated by the
events in dispute
• Demonstrative evidence is things like charts and maps
• Authentication
• US v. Vayner
• Facts
• Zhyltson (“Z”) convicted of unlawful transfer of a false identification document.
Friend of Z (“T”) testified, claimed he was familiar with Z’s work because he had paid
Z to create false diplomatic identification documents. Specifically “T” asked asked Z
to create a forged birth certificate saying he had a infant daughter. Z emailed the
forgery to T. The US introduced the email and had some other witnesses, but no
evidence about which computer sent the email. Gov then called agent “C” to show
printout of “Z’s” Russian social network page (had his employers, which partially
collaborated T’s testimony, and more significantly had his name as Azmadeuz so the
same as the gmail address used to email the fake id). Debate over validity of the
webpage and that it was not presented ahead of time before the trial.
• Discussion
• Obviously the page needed to be authenticated, which requires “sufficient proof that a
reasonable juror could find in favor of authenticity or identification.” The ultimate
determination as to whether the evidence is in fact what its proponent claims is
thereafter a matter for the jury.
• The type of evidence required for authentication is related to the purpose for which
evidence is offered and depends upon a context-specific determination whether the
proof advanced is sufficient to support a finding that the item in question is what its
proponent claims it to be.
• The proof of authentication may be direct or circumstantial, the simplest proof being
the testimony of a witness with knowledge.
• Note the difference between authentication and reliability. Just because something is
authenticated does not mean it is definitive.
• Court holds that page should not have been admitted without authentication
• government did not provide a sufficient basis on which to conclude that the
proffered printout was what the government claimed it to be.
• government only said that “C” would testify about what the page said, not its
validity, which is what he did. he never said it belonged to Z
• FRE 901 requires evidence sufficient to support a finding that the item is what the
proponent claims it is, and there was no evidence that Z himself created the page or
was responsible for its contents (even though his picture was there)
• In order to uphold a verdict in the face of an evidentiary error, it must be highly
probable that the error did not affect the verdict.
• this seems unlikely here, only evidence was T testimony (and T is a deceitful guy)
and the VK page
• US v. Long
• Long (“L”) called wife “S” as witness. She mentioned a contract “L” signed which led
them to believe he was participating in a legitimate business venture. Gov. did not object,
until later when they claimed it was hearsay.
• L argued exhibit was not being offered for its truth, but to show state of mind, to show
contract was real, and best evidence about what S testified about during cross. Court
questioned whether contract was authenticated.
• Gov claims contract right not to be submitted cause it was not authenticated.
• Document only needs to be authenticated in regards to what it is being used for (here
bolstering testimony) not as a real contract
• Bruther v. GE
• P electrocuted while changing a light bulb, glass envelope separated from the base, and
sustained permanent debilitating injuries
• D moved for SJ on ground P cannot authenticate build be wishes to introduce into
evidence
• FRE 901 “the requirement of authentication or identification as a condition precinct to
admissibility is satisfied by evidence sufficient to support a finding that the matter in
question is what its proponent claims.” without this there is no relevance
• gap of chain in custody of the light bulb and lack of identifying marks, a broken bulb was
found after the accident and guy who found it can’t imagine another reason they’d keep a
broken bulb and no other brand of bulb was used in the sockets
• court finds this evidence sufficient to support the finding that the bulb is the one that
caused the injury and is made by D, but the jury must make a specific ruling on that
• US v. Casto
• D contends that a break in custody of drugs D was accused of selling is enough to
make them inadmissible.
• Drugs were seized, sent to lab (held in vault for two months), tested, resent to agent
• “a break in the chain of custody affects only the weight and not the admissibility of the
evidence.”
• US v. Grant
• D claims government failed to prove packages contained heroin.
• Packages signed out of airport vault and then signed into DEA lab two weeks later.
Claims that this break means there is no way to know it was the same packages that
were tested as having heroin.
• slightly strange chain of custody case because what is in dispute is the testimony not
the drugs, drugs were never submitted
• Failure to explain chain of custody not determinative, and argument wasn’t even made
at trial
• Hearsay
• Basic idea is that factual disputes in criminal and civil cases should be decided based on
live, sworn testimony, not secondhand accounts of what other people said outside of court.
• Trial of Sir Walter Raleigh
• Raleigh charged with plot to put Lady Stuart on the throne. Cobham was interrogated,
and signed a sworn confession, which was the key evidence (he later recanted).
• court disagrees that Cobham must face Raleigh
• Leake v. Hagert
• P claimed D negligent in operation of a motor vehicle and hit plow being towed by the
tractor drove by P, this injuredP and damaged the plow. D acknowledge the accident, but
claimed it was because of negligence of D not having lights at night. Jury dismissed both
claims.
• evidence objected to was testimony from an adjuster who investigated the accident, he
claimed that he was told by P’s son tat the rear light had been out for quite some time.
• “The hearsay rule prohibits the 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 probed and cross-examined as the grounds of his assertion and qualifications to
make it.”
• P’s son’s testimony did not meet these conditions
• Was this decision prejudicial?
• other witnesses testified about the taillight, so no
• The factors upon which the value of testimony depends are the perception, memory,
narration, and sincerity of the witness
• problem with hearsay is the person making the original statement is not under oath, not at
the trial, and cannot be cross examined
• Problem 3.1
• No because no one is testifying she wrote those things, it is her diary. However, it
violates all the problems with hearsay and so counts (not at trail, not under oath, can’t be
cross examined).
Reading #4 (51-62) Hearsay

• FRE 801(c) The hearsay rule bars out of court statements used to prove the truth of the matter
asserted
• out of court statements are any statements other than ones made under oath and in front of
the fact finder during the same proceeding in which it is being offered in evidence
• what is a statement?
• next section
• What it means for a statement to be introduced for the truth of the matter asserted?
• matter asserted
• means matter asserted in the statement offered into evidence, not the matter asserted
by the party offering the evidence
• since evidence is typically related, if anyone of the statements is the truth of the matter
asserted in the out-of-court statement, the evidence falls under hearsay
• Witness
• often means someone who sees or observes something
• declarant
• someone who says something under oath
• Lyons Partnership v. Morris Costumes
• P owns intellectual property rights to the character Barney, claimed (D) rented a dragon
costume (Duffy) that infringed on this, District Court found for D.
• Claimed P had not demonstrated a likelihood of confusion between the dragon costume
and Barney. It reached this conclusion by disregarding most evidence of the actual
confusion. A lot of evidence suggested Duffey was confused with Barney, but it was
dismissed as hearsay.
• Appellate court disagrees evidence was hearsay.
• Statements weren’t used to prove the truth of the matter asserted (that Duffy was
Barney), but instead to prove that people thought Duffy was Barney. This was evidence
of reactions not hearsay.
• Vacate judgment, since statements are highly probative of actual confusion.
• United States v. Perry
• D was tried and convicted for conspiring to distribute PCP and of possessing with intent to
distribute. D claimed he was proceeding upon the good faith belief that he was working for
the agents, assisting them in locating drug dealers.
• D related a conversation he had with his mother far in advance of his arrest. Said man
calling his house was an agent he was working with. Court wouldn’t let his mother
testify.
• The statement was being offered not to prove that the man was an agent, but that D
thought he was and knew his identity.
• Where evidence is admissible for one purpose, but not for another, the accepted practice is
to admit the evidence with instructions that the jury consider the evidence only for the
permissible purpose. A different rule applies only when the probative value of the evidence
when used for its allowable purpose is outweighed by the prejudice that would result if it
were used for an improper purpose.
• Evidence should be admitted reverse conviction because can’t say with “fair assurance that
the jury was not substantially influenced by the error”
• Subramaniam v. Public Prosecutor
• Appellant held ammunition he wasn’t allowed to, sentenced to death. Found after being
wounded by security forces, ammo, but no weapon
• He claimed he had been captured by terrorist and forced to act under duress and at the
time of his capture by the security forces he had formed the intention to surrender, and
was found when he was about to surrender
• Appellant told his account of what the terrorists said was hearsay.
• Evidence of a statement made to a witness by someone else is not necessarily hearsay.
• It is hearsay when the object of the evidence is to establish the truth of what is contained
in the statement. It is not hearsay when it is just being proved that the statement was
made.
• in this case, the fear that threats would be committed allows statements to get around
hearsay
• Southerland v. Sycamore Community School District
• P was a bus driver, accused district of sexual harassment and negligent retention.
• Question about whether rumors about their relationship were hearsay.
• Court does not find that to be so. Issue wasn’t whether they were having a relationship,
but whether the statements were made.
• United States v. Johnson
• (D) controlled substance violation and mail fraud. P claimed D ran a clinic that distributed
illegal substances and made made illegal medical bills.
• contention over evidence:
• Former employee testified that pharmacies would call the clinic about prescriptions
written by the defendant, then employee told other doctor about the prescriptions, and
that the other doctor told (D) to stop writing prescriptions like that.
• again not hearsay, contention not that pharmacies called and he was writing bad
prescriptions, but that he was told to stop
• US v. Jefferson
• D didn’t attend court after being sent notice to attend.
• Letter and mailgrams used as evidence used to show he did receive notice, not that the
charges were correct.
• US v. Saavedra
• D convicted of conspiracy to commit wire fraud and three counts of wire fraud. Underlying
fraud involved wrongfully charging Western Union money ordres to improperly obtained
Master Card numbers. Inmates would call people in the phone book claiming to be police
officers or bank security personnel checking on credit card problems and would get people
to read their numbers to confirm them. D was picking up the money orders.
• Claim that admission of the testimony of three victims was hearsay
• witness testiefied they got phone calls etc.
• the item at issue was not whether the callers were law officials investigating credit card
problems, but instead showing the call was made
• Hanson v. Johnson (????)
• P owned and leased a farm to Schrik under a written lease, gave P 2/5 of the corn. S gave to
bank on his share of crops. Bank sold the corn to D.
• P testified over hearsay, that S showed him which corn was his and that was the corn sold.
Bystander testified to hearing the same language.
• The words were essential and was a fact to be shown in the cabin of proof of title. It was
competent evidence and not hearsay
• Creaghe v. Iowa Home Mutual Casualty Co.
• P struck truck insured by D. D claimed insurance claim cancelled before the collision.
• P challenges admission of testimony of D’s agent as hearsay.
• 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. The presence or
absence of such words and statements of themselves are part of the issues in the case.
This use of such testimony does not require a reliance by the jury or judge upon the
competency of the person who originally made the statements for the truth of their
content.
• Doesn’t matter whether man was honest we said he wanted to cancel the contract. it is
enough that the statements were made.
• US v. Montana
• D convicted of a bank robbery and related offenses, D was getaway driver. Robber testified
that D did not know there was going to be a robbery. Robber then gave D’s mother a note
demanding money for testifying favorably. Next morning deputy US Marshll heard robber
tell D cost for favorable testimony. Judge allowed the marshal to testify he heard this.
• Complaint that statement was hearsay.
• Differentiate performative and illocutionary utterances (the latter narrate, describe, or
other convey information and so are judged by their truth value; the former commit the
speaker to action)
• Performative utterances are not within the scope of hearsay cause they don’t make truth
claims. (you promised me is not ok, give me is ok)
• Problem 3.2
• No this is a performative utterance.
• United States v. Zenni
• Facts
• While officers were searching D’s apartment pursuant to a valid search warrant, they
answered many phone calls which asked them to place bets on sporting events.
Prosecution wanted to introduce to evidence as implied assertion that callers believed
that D’s place was used for betting. D objects and argues that these phone calls are
hearsay.
• Discussion
• Implied assertions can be submitted.
• Even though under common law implied assertions were excluded, but under Federal
Rules, the matter is different.
• Rule 801 excludes out-of-court statements and a statement is an oral or written assertion
or a nonverbal conduct of a person intended by him as an assertion. So only statements
that are subject to the hearsay rule are those which are "intended to be an assertion.” As
long as the conduct/statements are nonassertive, they can be admitted into evidence under
FRE 801.
• Here, the callers conduct was not intended to make any assertions. Therefore, these calls
don’t fall under the hearsay rule and are admissible.
• Basically, the callers weren't making statements that were used to prove facts, so it
didn't matter if what they said was true or not. It was only important that they made
the statements
• State v. Dullard
• Facts
• D convicted of possession of stuff to make drugs. Police found some of this stuff and
relevant equipment, also found handwritten note (see pg. 67), basically said guy was
nervous after seeing a police car. Admitted not to show proof of matter asserted.
• Discussion
• Claim note not asserted to show the author was actually nervous, but that it shows that
the recipient needed to be shown police were around since they were involved in drugs.
• Not convinced that the absence of intent necessarily makes the underlying belief more
reliable, especially when the belief is derived from verbal conduct as opposed to
nonverbal conduct.
• just because one of the four dangers of hearsay (insincertainty) is avoided doesn’t
mean the others are (erroneous memory, faulty perception, and ambiguity)
• besides maybe this isn’t even avoided, maybe the letter was a setup?
• “We think the best approach is to evaluate the relevant assertion in the context of the
purpose for which the evidence is offered.”
• Claim court read to widely in their definition of implied assertions, rule only states
unwritten conduct, so why go against common law?
• FRE 801 only expressly excludes unintended conduct, this seems far narrower
• could it be admitted under co-conspirator law?
• not enough evidence for identity, when the note was written, where, and anything else
needed for conspiracy
Reading #5 (72-98)
Hearsay & Confrontation
• The 6th amendment give every criminal defendant the right “to be confronted with the
witnesses against him.”
• Three key limitations
• applies only in criminal prosecutions
• grants a right of confrontation only to the accused
• the right is satisfied of the accused is confronted (in-court testimony, in the presence of the
defendant, subject to cross-examination)
• When does hearsay violate the confrontation clause?
• when the statement is testimonial (crawford), see Bryant to determine when that is
• Crawford v. Washington
• Facts:
• Lee stabbed at apartment, police arrested Crawford later that night. Miranda warnings
read to Crawford and wife Sylvia. Both claimed they went to confront Lee because he
had attempted to rape Sylvia. However, Sylvia claimed stabbing wasn’t in self defense.
• Sylvia did not testify in court because she was barred from doing so as a spouse.
However, in WA that privilege does not extend to a spouse’s out-of-court statements
admissible under a hearsay exception. Admitted her claim (exception was she was
incriminating herself). Crawford claimed admitting this would violate the 6th. Trial
court admitted the statement
• Discussion
• Two inferences about the meaning of the 6th amendment
• principally direct against the civil law mode of criminal procedure and it use of ex
parte examinations (interviewing witnesses before trial).
• Therefore, 6th applies to in and out of court statements (ie you can’t get around this
by having someone read someone else statements in court)
• We now interpret ex parte examinations as being prior testimony the defendant was
unable to cross examine (statements made that would lead an objective witness to
believe they were going t be used at trial). Note that this certainly covers police
officer statements.
• “In sum, even if the 6th amendment is not solely concerned with testimonial hearsay,
that is its primary object, and interrogations by law enforcement officers fall
squarely within that class.”
• The framers would not have allowed admission of testimonial statements of a witness
who did not appear at trial unless he was unavailable to testify, and the defendant had
had a prior opportunity to cross examine
• Ohio v. Roberts test and its problems
• conditions the admissibly of all hearsay evidence on whether it falls under a “firmly
rooted hearsay exception” or bears “particularized guarantees of trustworthiness.”
• too broad, applies whether there is ex parte testimony or not
• don’t want to admit statements just because they seem reliable, defeats purpose of
the amendment and is subjective
• this case was good example of problems with Roberts
• trial court and appellant court disagreed over reliability. (state supreme court relied
exclusively on the interlocking character of the statement and dismissed everything
else)
• both courts made assumptions that should have had to bear cross examination (see
79 for examples)
• Ruling
• where testimonial statements at issue the only indicium of reliability sufficient to
satisfy constitutional demands is confrontation (reverse)
• (Dissent, Rehnquist)
• Not clear all that the law should be so cut and dry
• could have just cited Idaho v. Wright (out-of court statement was not admissible
simply because the truthfulness of that statement was corroborated by other
evidence at trial)to overturn State Sup Ct
• Davis v. Washington/Hammon v. Indiana
• Issue
• when statements made to law enforcement personnel during a 911 call or at a crime scene
are “testimonial” and thus subject to the 6th amendment
• Facts
• Davis v. Washington:
• McCottry called 9/11 there was a disconnected, was redialed, operator ascertained that
Davis was beating her, Davis ran, then 9/11 caller began asking questions. when
police arrived Davis was gone, officers could only tesify that McCottry appeared to
have recent injuries, McCotrry did not appear in court. Various courts admitted the
9/11call
• Cites Hammon v. Indiana
• Police responded to a domestic violence call, victim (Amy) filled out and signed
battery affidavit. Amy did not appear at the trial. Not hearsay as an excited utterance.
Hershel found guilty all the way up the chain
• Discussion
• statements are nontestimonal when made in the course of public interrogation under
circumstances objectively indicating that the primary purpose of the interrogation is to
enable police assistance to meet an ongoing emergency. they are testimonial when the
circumstances objectively indicate that there is no such ongoing emergency, and that the
primary purpose of the interrogations to establish or prove past events potentially
relevant o later criminal prosecution.
• Primary issues with applying Crawford
• whether the confrontation cause applies only to testimonial hearsay; and if the 9/11
call qualifies
• seems to apply only to testimony, can’t circumvent this by having someone else
present the evidence
• 9/11 call produce testimonial statements?
• testimony is designed primarily to establish or prove some past fact; this is not what a
9/11 call does
• 9/11 call describes things as they happen, ongoing emergency, statements necessary to
resolve the emergency rather than learned what happened in the past.
• after Davis left and 9/11 caller started asking more questions we could say it was
testimony, so things can change from interrogation to testimony. jury did only hear
part of the call and that was the right way to go
• police affidavit certainly testimony (emergency was over, only produced on 2nd request
from the police) and so should be excluded in Hammond
• Concurrence
• claims neither case is testimonial, since neither is formalized dialogue, didn’t trigger
Miranda, not trying to evade confronation in either case (state couldn’t find McCottry
and Hammon wasn’t there)
• Michigan v. Bryant
• Facts:
• Officers arrived and found covington shot next to his car. he said he was shot by “rick”
and that he had talked to Bryant through the backdoor of his house (recognized voice)
and was shot when he turned to leave. found blood and bullet at Bryant’s house
• officers testified about what Covington said
• Supreme Court overturned saying that the officers were obtaining information about what
had already happened, not dealing with an an ongoing emergency
• Discussion
• clear that statements obtained during on going emergencies are not done to create a
record for trial, but there are other cases where this can be the truth
• first look at primary purpose (if done to “enable police assistance to meet an ongoing
emergency it is not testimony”) of the statement and then look at hearsay rules
• How to determine primary purpose
• objectively evaluate the circumstances in which the encounter occurs and the
statements and actions of parties
• inquiry is not the subjective or actual intent of the parties involved, but rather the
purpose that reasonable participants would have had
• ongoing emergency is significant cause it shifts priorities away from proving past
events that might potentially later be relevant
• when is an emergency going on?
• unclear, but consider whether the threat is neutralized (bigger deal with a gun than
fists)
• doesn’t mean an emergency is ongoing as long as the perpetrator is on the loose.
• formality of the situation is also important
• formality submits end of emergency and a more testimonial situation
• look at actions of both declarant and interrogator (ie “tell me who did it so we can
arrest them”)
• victim less calculating during an ongoing emergency
• Application
• circumstances in which the interrogation occurred
• nothing to show the threat had ended or that it was a private confrontation
• gun was being used, shooters location was unknown
• primary purpose of interrogation?
• he was dying as he made the statements, shifts his primary purpose
• danger of the situation shifts the police’s purpose
• Statement wasn’t testimonial hearsay, Michigan can apply other hearsay rules
• Concurrence
• agrees but mainly because of formality and solemnity, no evidence of avoiding
confrontation
• Dissent (Scalia)
• Covington knew that there was little value to the statements except for arrest case the
threatening situation had ended, shooting had occurred elsewhere, not pursued, and he
was surrounded by officers, shooting down by drug dealer not a spree killer
• severity of injuries and kinds of questions show officers were focusing on getting the
shooter (they only passingly asked him about his wounds, and asking questions about the
shooting doesn’t help with his treatment)
• questioning certainly seems like a court examination
• officers didn’t indicate they weren’t dealing with a past event
• never drew weapons or search the gas station, didn’t start by asking where the shooter
was
• court is making emergencies far too wide and really limiting what it means for
interrogation to be testimonial and is going away from craw fords more objective test
(looking at totality of circumstances)
• Problem 3.19
• evidence is hearsay (out of court, statement, used to assert truth of matter asserted), not
confrontation clause cause its for the defendant
• Problem 3.20
• yes this is hearsay, and would trigger the confrontation clause (testimonial)
• Problem 3.21
• not hearsay (not asserting the truth of the matter asserted), does trigger confrontation
clause (can’t get around it by having others just make the statement)
Reading #6
Exceptions to the Hearsay Rule
• Prior Statements By Witnesses
• FRE except two classes of statements from the hearsay rule
• out of court statements by declarants who testify as witnesses in court and under oath in
the very proceedings in which their earlire statements are offered as evidence
• Albert v. McKay & Co
• P worked for D, who owned a lumber mil. P had clothing caught in machinery and he
was killed. Widow brought a case, won got 8k.
• P alleged machinery was negligently started, but numerous witness were unanimous
about the machinery was running the whole time
• one witness who said this at trial, made statement immediately after the accident
that went against this, this doesn’t count as evidence either way, but discredits the
witness
• no evidence for claim that machine had been running, just invalidate the case
• Advisory Committee note to FRE 801(d)(1)
• if the witness admits on the stand that he made the statement and that it was ture, he
adopts the statement and there is no problem
• the hearsay problem arises when the witness on the stand does having made the
statement or admits having made it but denies its truth
• based on an unwillingness to countenance the general use of prior prepared
statements as substantive evidence
• prior inconsitstent statements are now substantive evidence
• US v. Owens
• Facts: Correctional officer was attacked and badly beaten by an inmate. He could not
remember who attacked him when he awoke, but later remembered and identified the
defendant. On cross, victim admitted that he could not remember seeing the defendant,
could not remember any of his other hospital visitors, and could not remember whether
any of these visitors suggested defendant was the assailant. Defense counsel
unsuccessfully sought to introduce hospital records to refresh victim’s recollection,
including one indicating he had attributed the assault to someone other than defendant.
• Issue: When is an out-of-court statement of identification admissible?
• Holding: Out-of-court statements of identification are generally admissible, and
inability to remember the reasons for making the statement is not sufficient to make
the witness not “subject to cross-examination”.
• Reasoning: Confrontation clause guarantees a defendant the right to be confronted
with the witnesses against him. The Confrontation Clause gives no guarantee that
every prosecution witness will refrain from giving testimony marred by forgetfulness,
confusion, or evasion. Defense simply must be given a full and fair opportunity to
probe and expose those infirmities through cross. The Confrontation clause guarantees
only an opportunity for effective cross, not cross that is effective whatever way, and to
whatever extent, the defense might wish. That opportunity is not denied when a
witness testifies as to his current belief but is unable to recollect the reasons for that
belief. 801(d)(1)(C) defines as not hearsay a prior statement of identification made
after seeing a person if the declarant testifies at trial and is subject to cross concerning
the statement. A witness is regarded as subject to cross when he is placed on the stand,
under oath and willingly answers questions. Limitations on the scope of examination
by the trial court or assertions of privilege by the witness may undermine the process
to such a degree that meaningful cross within the intent of the Rule no longer exists.
That effect is not produced by the witness’ assertion of memory loss, which is often the
result cross seeks to produce and can be effective in destroying the force of the prior
statement. In enacting the Rules, Congress and the advisory committee seemed to
believe that since memory fades over time it is preferable to have an out-of-court
statement admitted because it is likely more accurate. The simple fact that 804(b)
defines as unavailable a witness with memory loss does not mean they are not subject
to cross, it simply means that cross isn’t as effective as the defense would like.
• Admissions by Party-Opponents
• when an out of court statement is offered into evidence against the person who made it, the
statement qualifies as an admission and therefore is exempt from the hearsay rule,
regardless whether the statement on its face to admit anything contrary to the declarants
interest.
• Salvitti v. Throppe
• Facts
• P injured when car hit tree. Claims he swerved to avoid D’s truck.
• Discussion
• defendant and driver visited P and admitted accident was their fault, promised
everything would be taken care of
• the acknowledgement by a party that it was he who was at fault is admissible as a
declaration against interest
• d claims, since he wasn’t at accident his statement is only based on what the driver
said
• personal knowledge not required
• admissions by a party-opponent are excluded from the category of hearsay on the theory
that their admissibility in evidence is the result of the adversary system rather than
satisfaction of the conditions of the hearsay rule
• US v. McGee
• D had robbed a bank, claims there was error that his statement was not admitted
• detective said that during the event D gave three different accounts of events, claimed
this was not inculpatory,
• no requireiremnt that admissions by a party-opponent be inculpatory, only require a
party’s own statement be offered against them
• dont confuse this with declarants against interest
• that had to be against the declarants interest when made, this requirement doesn’t exist
for admissions
• US v. Phelps
• D had possession of a lot of drugs
• P wanted testimony of officer that D said bag was his, but he hadn’t put it in the trunk
• this is odd because the objection was made by co-defendant
• the statement of a party may be introduced as an admission only when offered against that
party
• testimony was excluded
• Reed v. McCord
• p claimed negligence of D lead to p’s death

• p wanted to use coroner's testimony from previous trial
• d had made statment to cornorer, but statement was not based on personal knowledge, but
the admission was against d’s own interest
• going against own interest overrules basic hearsay concern
• Foster v. Commissioner of Internal Revenue
• a party’s lack of personal knowledge about the truth of the matter asserted does not render
the statement inadmissible
• Beech Aircraft v. Rainey
• navy pilots crashed, spoused brought suite against aircraft company, alleged crash caused
by lack of power to the engine
• D wrote letter explaining he thought lack of power lead to crash, but letter also said his wife
had tried to cancel the training flight for various reasons (students fatigue) and that a plane
appearing made the deceased bank the plane quickly
• court says there was error in not allowing Rainey to present a broader picture and show
what the main thrust of the letter was
• need to have complete presentation of evidence
• FRE 106: the opponent against whom a part of an utterance has been put n may in hist
turn complement it by putting in the remainder in order to secure complete understand
• US v. Fortes
• to link D with robbery gov relied on testimony of Ward, Ward said he was told by Fortes
(while Jemison was there) that he did a bank robbery and a lot of details were given
including Jemison’s participation (Jemison objects to the statement)
• FRE 801(d)(2)(B)
• when a statement is made that incriminates someone and the statment is not denied both
the statement and lack of detail are admissible
• enough evidence to show Jemison was there
• Souther Stone Co v. Singer
• P never paid for rock it sold, brought case against the owners and what not of the company
that bought the rock
• letter was admitted into evidence which related several statements about the business
between parties
• argument letter is admisible as a satement in which Moore manifested his adoption or belief
in its truth, not replying to the letter after being asked to shows Moore believed in the
contents of the letter
• court disagrees, mere lack of response is not assent (unless it is reasonable to expect
otherwise) no reason for Moore to expect letter to be replied to (he wasn’t attached to the
company anymore when he got the letter so he didn’t care about it)
• so its just hearsay
Reading#7
• Hanson v. Waller
• P reprsents person struck by D truck, P claim that D shouldn’t have been able to put a letter
into evidence from P’s first attorney to D’s attorney. Letter had pictures showing it was
impossible for D to see victim.
• Rule 801(d)(2)(C) excludes statements used against a party which were made by another
person authorized by the party to make a statement concerning the subject, from the
definition of hearsay. This allows statements by attorneys in a representative capacity.
• Mahlandt v. Wild Candid Survival & Research Center Inc
• Facts
• P was sent by mother to neighbors home, passed by house where wolf was chained to
fence, guy was keeping wolf not at research center (as he was suppose to), but at home
so he could take her to schools and institutions (she had been gentle and good natured),
had been chained because other night she had jumped the fence and attacked a beagle
• Poos heard cries, saw P lying face down with distance wolf could reach, didn’t see wolf
attack boy (neither did other neighboor), wolf was wailing which experts say is a way to
gett attention not attack
• Poos denies saying a “wolf got P and he is dying” left note saying wolf bit child on D’s
door. P denies he told D that wolf bit child. Minutes of D meeting discuss wolf biting
the child.
• P’s dad and Poos said child went under fence which caused injuries, not the wolf. Expert
said not wolf bites
• Discussion
• Trial judge excluded statements because Poos did not have personal knowledge and so
the evidence was hearsay
• thus court disagrees about the note on the door, and statmenet by Poos, since they were
Poos own statements and he believed them to be true
• this is a 801(d)(2)(D) situation, he had the wolf and so his opinions are accepted as basis
for action by his principal
• both admissible
• how about the minutes?
• these might fall under 801(d)(2)(C) since it was the directors making the comments
• but since he wasn’t at meeting it doesn’t apply
• Sealand Service v. Lozen International
• P brought suit to get money from a contract, D counterclaimed for damages resulting from
P’s failure to timely deliver one of the shipments at issue, P claim dismissed D not resolved
• claim that an email imporperly excluded an internal company email that was fordwarded to
P from an employee of D
• letter concerns matter within authors employment, author was a listed employee, and email
was forwarded by an employee, and had statement showing belief in the statement
• email should be included
• Bourjaily v. US
• FRE 801(d)(2)(E) a statement is hearsay if the statement is offered against a party and is a
statement by a coconspirator of a party during the course and in furtherance of the
conspiracy. Court has three concerns
• whether court must determine by independent evidence that the conspiracy existed and
that the defendant and the declarant were members of this conspiracy
• the quantum of proof on which such determination must be based
• whether a court must in each case examine the circumstances of such a statement to
determine its reliability
• Facts
• a fbi informant arranged to sell drugs to Lonardo, Londardo said he would distribute the
drugs, FBI informant spoke to a guy (P) about the quality of the drugs and price,
Londardo agreed to transfer drugs from informant to P, FBI found cash in P’s car
• P charged with possession and intent to distribute
• dispute about admissibility of phone call about drugs
• Discussion
• both P and D agree that existence of conspiracy and P’s involvement are preliminary
questions of fact and should be solved by the court
• court traditionally requires a preponderance of proof, not over whether evidence meets
substantive issues or on merits but whether evidentary rules have been satisfied
• P wants court to only look at independent evidence for determining whether a
conspiracy existed
• Court relies on FRE 104, not previous cases, FRE 104 allows use of any evidence
• At trial, the prosecution introduced the phone call between Bourjaily and Lonardo into
evidence.
• Bourjaily objected on the grounds that the conversation was hearsay.
• The prosecution countered that the conversation was not hearsay because it met the FRE
801(d)(2)(E) exception because they were statements made by a co-conspirator during the
course of and in furtherance of the conspiracy.
• Bourjaily countered that the prosecution could not establish that a conspiracy existed
between Bourjaily and Lonardo existed without the phone call, so the exception did not
apply.
• Basically, Bourjaily argued that the phone call established the conspiracy, but since it was
inadmissible you couldn't prove the conspiracy existed, and so the phone call was
inadmissible.
• Kinda like a Catch-22.
• This is known as the bootstrapping rule, because the evidence isn't allowed to pull
itself up by its own bootstraps
• The Trial Judge allowed the evidence to be admitted.
• The Trial Judge found that the statements Lonardo made in the phone call, and the incident
in the parking lot were enough to prove by a preponderance of the evidence that a
conspiracy existed.
• The Trial Court found Bourjaily guilty of drug possession. He appealed.
• The Appellate Court affirmed. Bourjaily appealed.
• The US Supreme Court affirmed.
• The US Supreme Court found that a Court does not need evidence independent of the
statements themselves in order to conclude that a conspiracy existed.
• Basically, a statement that a conspiracy exists can be admitted under the FRE 801(d)(2)
(E) exception, even if no other independent evidence exists to prove the conspiracy.
• The technical reason why this is allowed is that FRE 104(a) allows preliminary questions
concerning admissibility to be determined by the Court. Therefore, a court can decide to
listen to the statements, decide if those statements show a conspiracy, and then admit
them because they were made in furtherance of the conspiracy.
• The decision in this case reversed the pre-FRE common law, which used the bootstrapping
rule to exclude evidence that was not backed up by independent evidence.
Reading #8 (133-45)
• When two or more defendants are tried together, a prior statement by one of the defendants
will be admissible against that defendant as an admission, but typically cannot be introduced
against the other defendant or defendants without violating hearsay and confrontation clause
rules.
• Bruton v. US
• Facts:
• Bruton (B) and Evans (E) both convicted on federal charge of armed postal robbery.
Postal inspector testified that E orally confessed to him that E and B committed the
robbery. Court set aside E confession as not being under Miranda and therefore
inadmissible. Court used set aside E’s confession against B since it was hearsay.
• Discussion
• Court overturns Delli Paoli
• Delli Paoli basically said that is “reasonable possible for the jury to follow”
sufficiently clear instructions to disregard testimony. Then confrontation clause
problems can be avoided cause it is like no statement was made.
• This was kind of overturned in Jackson v. Denno
• Held that a defendant is constitutionally entitled to at least have the trial judge first
determine whether a confession was made voluntarily before submitting it to the
jury for an assessment of its credibility. (more relevantly they held that jury could be
relied on to ignore a confession of guilt)
• juries don’t really have things wiped from their memories
• Multiple people defend the exception
• admit not really capable of preventing jury from considering stuff, but does further
pursuit for truth and that’s good.
• there are other ways to pursue the truth that don’t have this harmful effect though
• joint trials shouldn’t be sacrificed (cheaper, more convenient, faster) in order to use the
confession against the declarant
• liberty more important than saving cost though
• majority in Delli Paoli argued that if we assume the jury can’t follow instructions what
is the point of the jury system
• that may be true, but some cases the risk is too high to ignore
• Extrajudicial statements of a codefendants naming another defendant are so prejudicial
that limiting instructions cannot work. Must hold new separate trial, or redact the
confession to eliminate the prejudice.
• Dissent
• argue that this is only codefendant admission and so is not as powerful
• Gary v. Maryland
• Facts:
• Woman beaten to death. One guy confessed that it was him and two other guys (one
being Gary). All three tried together. Detective read confession saying “deleated” every
time name came up besides the confessor. Then prosecutor asked the detective if the
confession allowed the arrest of Gray.
• Discussion
• Richardson v. Marsh limited Bruton
• Marsh and Williams jointly tried. State readacte the confession of Williams so Marsh
wasn’t mentioned and told jury not to consider the confession as evidence against
Marsh. Facts made it reasonable to guess Marsh was involved though.
• Court distinguished confession because it wasn’t incriminating on its face and
expressly implicated (instead it required linkage).
• “The Confrontation Clause is not violated by the admission of a non testifying
codefendant’s confession with a proper limiting instruction when, as here, the
confession is redacted to eliminate not only the defendant’s name, but any reference
to his or her existence.”
• In this case, unlike Richardson, confession refers to the confessing defendants existence.
• So, when a confession is redacted so that defendant’s name is replace with obvious
indication of deletion, is it limited by Bruton? Yes
• These cases, with redactions just using a symbol, are so close to Bruton they aren’t
ok/
• jury will figure out the redactions and act the same way
• deletion might draw even more attention to other defendant, making the confession
seem even more important
• even with a blank the statements are still worded the same and so clearly act as an
accusation
• policy reasons not applicable
• worry about strict redaction rules making confession inapplicable
• this is just being lazy
• worry that the rule is too complicated and might lead to mistrials
• basically just say say no
• Dissent
• need to assume jurors can follow instructions
• claim that just having blanks is not facially incriminating (defendant’s presence at trial is
not incriminating)
• obviously just redacting names, rather than reference to existence, will lead to less likely
incriminate. at the same time removing the name is less likely to lead to incrimination
than leading
• acting this way makes finding the bad guys harder
• can’t change wording of confessions to fit this rule, cause that is changing what the
confession said
• asks us to imagine conspiracy cases where redactions cary big implications
Reading #9 (145-67)
Spontaneous & Contemporaneous Statements
• US v. Obayagbona
• Facts
• D guilty of conspiring to sell heroin to undercover agent. D argued hearsay objection.
• When agent bought heroin he had a tape recorder, bought heroin from women next to D,
D, agent testified D handed heroin to him. Women who sold it said D wasn’t involved.
When agent was “arrested” he said a woman wearing the clothes D was wearing handed
him the drugs.
• Discussion
• 803(2) a statement relating to a startling event or condition made while the declarant was
under the trees of excitement caused by the event or condition is not excluded by the
hearsay rule.
• Excited utterance has two conditions:
• must be an occurrence prevent sufficiently startling to render inoperative the normal
reflective processes of an observer
• statement must have been spontaneous
• court says agent was excited
• 803(1) allows a statement describing or explaining an event or condition made while the
declarant was perceiving the event or condition, or immediately thereafter (this last
clause allows something to right after as long as there can be a reference of spontaneity)
• statement admissible under this rule as well
• made at first opportunity, statement as spontaneous as possible
• Bemis v. Edwards
• Facts:
• P claimed excessive use of force, claimed 911 call made by witness improperly excluded,
tape described the incident.
• Discussion
• under certain circumstances 911 class may qualify as either present sense impression or
an excited utterance, certainly if you are witnessing the action that counts
• what’s needed to qualify
• statement must be nearly contemporaneous
• must have personal knowledge of events described
• this call doesn’t meet this standard
• witeness was close to the incident at the time, but it appears the call was made as
information was relayed to the caller
• US v. Elem
• Facts:
• D convicted of owning firearm while a felon. Challenges the exclusion of statements he
made when he was taken into custody. He said gun wasn’t his and that cops wouldn’t be
able to get him for this offense.
• Discussion
• overview of how the rule works
• claim D not adequately excited
• res gestae: signifies the admission of a statement having independent legal significance, this is
a statement that is important because it was said not necessarily because it was true.
• this is different than excited utterances

State of Mind
• US v. Harris
• Facts
• D and M convicted of conspiracy to distribute heroin and attempting to possess
• Gov had informant, who recorded talks and phone calls, D tried to say he knew Harris
was informant and was just playing along out of fear
• D called his parole officer, who did say Harris thought he was being set up
• gov rejected this as hearsay, and said he would exclude counsel’s testimony saying the
same
• Discussion
• court disagrees about excluding these cases, should come in under state of mind hearsay
exception
• these statements weren’t offered for the truth of the state of the matter, but for showing
the state of mind
Hillmon Doctrine
• The case below established "the Hillmon Doctrine:” the state of mind of the declarant can
be used inferentially to prove other matters that are in issue.
• "When the performance of a particular act by an individual is an issue in a care, his
intention to perform that act may be shown. From that intention, the fact finder may draw
the inference that the person carried out his intention and performed the act."
• Basically, if a person says that they are going to do an act, then that statement is relevant
evidence that can be used to help prove that they actually did the act.
• It isn't conclusive proof, but it can help.
• Mutual Life Ins. Co. v. Hillmon
• Facts
• Hillmon was traveling with Brown looking for a good site to build a new cattle ranch.
• Brown came out of the prairie in Colorado and claimed that he had accidentally shot and
killed Hillmon. A body was found in a creek where Brown said it would be.
• Hillmon's wife claimed that it was his body and asked the insurance company for her
insurance money (10k from P, and two other 5k claims).
• Mutual Life countered that the body was that of another man, Walters, who had left Iowa
and disappeared in Kansas. Mutual argued that Hillmon and Brown had conspired to
murder Walters and use his body to collect the insurance money.
• Mutual Life was suspicious because Hillmon recently took out three massive insurance
policies on himself that he couldn't afford.
• The body was dressed in Hillmon's clothes and carrying Hillmon's diary.
• Hillmon's wife sued the insurance companies to get her money.
• Discussion
• At trial, Mutual Life attempted to introduce letters from Walters just before he
disappeared saying that he was going with Hillmon to Colorado.
• Mrs. Hillmon objected on the grounds that the letters were hearsay.
• Mutual Life argued that under the common law, statements made in the present state
of mind are admissible as an exception to hearsay. (The Trial Judge rejected the
letters. The Trial Court found for Hillmon. Mutual Life appealed.)
• The US Supreme Court reversed and ordered a new trial.
• The US Supreme Court looked to the common law and found that evidence of
intention is an exception to hearsay.
• The Court found that the letters could not used to prove that Walters did go to
Colorado with Hillmon, but they could be used to show that Walters intended to go
to Colorado with Hillmon.
• "Wherever the bodily or mental feelings of an individual are material to be
proved, the usual expressions of such feelings are original and competent
evidence."
• Shepard v. US (only forward looking statements can be used under Hillmon doctrine)
• Facts
• Crime is that Shepard poisoned his wife. He loved another woman and wanted to marry
her instead.
• Victim talked to her nurse. Asked nurse to test whiskey for poison and said she had been
poisoned by P. This statement was allowed.
• Wife also talked about susicide. these are ok for state of mind only
• Discussion
• To rebut the idea that S was suicidal the gov introduced idea she wants to live
• Gov used wife’s statements her statements as proof of an act committed by someone
else. That is as evidence she was being poisoned and was not suicidal
• declarations are competent to prove the declarants feelings but not as evidence of
another’s acts. Also there is more weight given to statements if they look forward and
not backward (I intend to do is better than he did)
• US v. Houlihan
• Facts
• Boyden was shot, as he was leaving his sister’s apartment he told her that he was going
to meet Herd.
• Discussion
• Gov wanted to introduce this statement as circumstantial evidence that Herd killed B.
Argued it showed emotional or mental condition.
• Under Hillmon, out of court statements of a declarant are admissible to prove the
subsequent conduct of others
• 2nd circuit narrowed this to future plans (Shepard) and with independent evidence
• 9th circuit doesn’t require ind evidence
• this court holds that 803(3) codifies Hillmon and doesn’t limit it.
Reading #10 (167-82)

• Rock v. Huffco Gas & Oil Co.
• Issue:
• whether written and testimonial evidence concerning the history of Rock’s alleged
accidents, which were given by Rock to the doctors treating his ankle, should be
admissible
• Holding
• court needs to first determine whether statements were reasonably considered by the
declarant as being pertinent to the diagnosis or treatment
• who’s at fault doesn’t fall into this category
• State v. Moses
• statements attributing fault in a domestic violence case are an exception because the identity
of the abuser is relevant to treatment
• when courts have found statements to health care providers are testimonial the
prosecutorial purposes of the medical examination has been clear
• an out of court statement to a social worker is also admissible if made in the course of
diagnosis and treatment
• Fisher v. Swartz
• writing may be used by a witness in different ways. may use it to revive or stimulate a
present recollection (past recollection revived), or use it as a record of past knowledge (past
recollection recorded).
• past recollection revived: must testify to the facts as he remembers them and may not
read or show the writing to the jury
• past recollection recorded: judge in his discretion may permit a witness to incorporate in
his testimony a writing expressive of his past knowledge and to read it or show it to the
jury
• US v. Riccardi
• in this case both testified from present recollection
• no real merit here except and overview of present recollection revived v recorded
Reading #11 (182-95)

• State v. Acquisto
• Facts:
• D charged w/sexual assault, d presented evidence of alibi, both d claimed they were at
home that morning cause employees of their company were on strike and so they
couldn’t go to work. State had witness who said she got payroll vouchers from employer
of D’s witnesses for the time they said they were on strike.
• Discussion
• Common law required all participants in making the business record had to testify, this is
impractical now.
• FRE requires foundation to be laid (witness was custodian of records and for
administering payroll),
• D objects that vouchers were drawn up before day when witnesses didn’t come in, this
doesn’t matter because the vouchers would’ve been changed if wrong.
• Keogh v. Commissioner of Internal Revenue
• Facts:
• P worked for a casino as a dealer, so he had wages and tips, tips were pooled by
everyone and split evenly
• Commissioner claimed P underreported tip income, this claim was made based on diary
of a guy who also worked there and tabulated tips
• Discussion
• diary not a business record?
• was kept in account of the guys own business activity/occupation
• reliability of business concerns may be established in personal business records if they
are systematically checked and regularly and continually maintained
• no reason to suspect his motives
• entries checkout with payroll records
• not tarnished by fact he also undereported tips
• US v. Gibson
• Facts:
• d convicted of heroin trafficking, ledger admitted which implicated D
• Discussion
• ledger keeper said she kept a record of most of her large drug transactions, were recorded
contemporaneously, and were relied upon
• doesn’t matter that it is incomplete, cause doesn’t effect accuracy of other pages
• doesn’t matter entries were out of order, cause were made near time of event
• Palmer v. Hoffman
• train engineer made statement to assistant superitentdent of the road and a representative of
the MA public utilities commission.
• this was excluded
• the fact that a company records employees versions of accident does not make that
recording something done in the regular course of business, if this was the case law firms
could make the same claim, records would cease to be trustworthy
• primary use of these reports is litigation
• Lewis v. Baker
• P worked for railroad freight yard. claimed he was injured by a faulty brake. d sought to
disprove by showing evidence that break worked right before the accident and right after
the accident. initially tested by p then by company for an accident report (claim P just
didn’t use the brake right)
• accident report had to be made after injuries as a part of the regular course of business
• in this case the accident report was not made with motivation for lawsuit cause the guy who
wrote it wasn’t in the accident, so it should be included
• Wilson v. Zapata Off-Shore Co
• P left D because of emotional problems caused by hostile work environment
• challenges refusal of exclusion of portions of hospital records which had statements made
by P’s sister to social worker, where P sister says P is a liar
• there is double hearsay (social worker reporting what she hears to hospital), so need
multiple levels of hearsay exclusion, can’t just use business exception and have both
covered
• claim that the statement was made for medical diagnosis or treatment
• question becomes whether the statement was pertinent for treatment
• court ignores the question cause the statment doesn’t cause harm
• US v. Gentry
• D told employees and security at the mall he worked at that he had bit into a pin when ate
an M&M, an employee did find some metal embedded in the candy, D failed a polygraph, D
confessed after the polygraph was done
• he was prosecuted for making a false report of food tampering
• D objects to testimony from an employee of manufacturer that there were no other reports
of pins in M&Ms
• this is is allowed; to show a nonoccurence of an event
Reading #12 (195-218)

• Beech Aircraft Corp. v. Rainey
• Facts
• navy training aircraft crashed
• spouses of people in plane brought suit
• one piece of evidence was an investigative report by JAG: had finding of fact: opinion
(said pilot error most probable explanation): recommendations
• judge admitted the whole thing, except for where pilot error and rollback were considered
• Issue
• Whether FRE 803(8)(C) extends to conclusions and opinions contained in public
investigation reports
• it odes if they are based on factual findings
• Discussion
• held that conclusions should be barred by circuit court judge
• factually based conclusions or opinions are not excluded from the scope of 803(8)(c)
• court discusses language of the rule, legislative history, advisory committee’s comments
199
• judge can exclude reports if he deems them unreliable
• also difficult to distinguish fact and opinion
• Meledez-Diaz v. Massachusetts
• Facts
• MA courts admitted affidavits reporting material was cocaine
• Issue
• where reports testimonial making them subject to the confrontation clause
• Discussion
• the documents here are clearly affidavits, which are covered by the confrontation clause
• these certificates are the same as in court testimony
• were clearly made to serve as evidence
• state argues the documents are not accusatory
• no support for this, the evidence does act against the defendant
• state also argues that the analysts are not ordinary witnesses
• this might be true, but that’s not the limit of the confrontation clause
• state tries to differ testimony of historical and scientific events
• still need cross examination
• testing might not be neutral or competent
• state argues that the documents are like business records
• business record exception doesn’t cover documents produced for use at trial
• an important reason these records don’t trigger the confrontation clause is they aren’t
testimonial. this is not the case here
• state also argued that since analysts could’ve been subpoenaed confrontation clause doesn’t
apply
• this is not the case
• also won’t relax confrontation clasue rules to make the trial easier
• Dissent
• not clear which analysts would need t be confronted
• if its all of them its impractical
• petitioner didn’t argue against the material being cocaine just made confrontation clause
argument that is troubling
• not likely seeing defendant will make analyst change their mind
• confrontaiton calsue refers to people not kinds of statements
• Bullcoming v. NM
• Facts
• P arrested for DWI, evidence was forensic report on his blood alcohol level
• state called an analysts who was familiar with the testing process not the analyst who
actually conducted the test
• Discussion
• state wanted the finding put in as a business record, used another scientist
• certification is testimonial, but NM supreme court was ok with it cause the guy who didn’t
testify just transcribed the numbers he saw, ie true accuser was the machine
• problem is a lot of witnesses testify to factual observations
• court said there was no interpretation, but guy also said he got sample with unbroken
seal, that he performed a particular test, etc
• using other analyst was justified because the new guy was an expert witness
• this testimony couldn’t convey what the first analyst knew or observed (what test he did)
• also couldn’t convey lapses or lies on first analyst part, such as why first analyst was
placed on unpaid leave
• the real problem is Crawford can’t be dismissed just because the court wants to
• also tried to distinguish cause first analysts didn’t swear on his results and therefore make a
testimony, but this is silly, after all he did sign the report
• what about the idea this causes an undue burden?
• can’t disregard constitution for convince
• this hasn’t been too bad in jurisdictions where testifying is common practice
• Concurrence
• alternate purpose for the BAC reading wasn’t given (ie medical)
• person testifying wasn’t there (ie supervisor)
• expert witness wasn’t asked for independent opinion on testimonial statements that were
not admitted
• there wasn’t just a printout
• Dissent
• callign the actual technician is a formality
• defense can challenge any forensic evidence
• may call and examine the actual technician or an expert witness
• court is over using the confrontation clause
Reading 13 (218-36)
• US v. Bollin
• B convicted of being part of a fraud scheme. Claims court overstepped by presenting a
redacted version of his grand jury testimony and wouldn’t let him submit the retracted parts.
• Circuit court disagrees
• FRE 804(b)(1) provides an exception to the hearsay rule for the former testimony of a
declarant where the declarant is unavailable as a witness. The 5th amendment does make
you unavailable, but this is done for the purpose of preventing testimony and so doesn’t
count. Issue here is you can’t choose to make yourself unavailable.
• Omitted parts don’t get in under rules of completeness either.
• Kirk v. Raymark Industries, Inc.
• Kirk died from mesothelioma. Wife sues 8 parties on his behalf. Claims he got
mesothelioma from expose to asbestos while working at shipyards.
• D offered testimony from doctor that the material it had didn’t have asbestos that caused
Kirks illness. Kirk read prior testimony of another Dr from an unrelated action. Other Dr
had represented Owens and said it was posible for Owens material to cause mesothelioma.
• Owens argues this was hearsay. Kirk makes two arguments
• not hearsay 801(d)(2)(C): argue its an admission by party opponent, since dr was
authorized to speak on behalf of Owens. But expert witness gives his own opinion, so
unless expert is an agent this doesn’t apply.
• 804(b)(1): the proponent of the statement has to prove unavailability though, but Kirk
didn’t do this
• Clay v. Johns-Manville Sales Corp
• P brought actions against D on product liability claims based on exposure to asbestos. P
argues judge errored in excluding a deposition taken from a witness in a different trial. Dr
had very relevant deposition due to relevant knowledge. Dr died before this trial.
• 804(b)(1) claim was made. Question is whether the other trial was a predecessor in interest.
• used to just require similair interest
• now defined as “if it appears that in the former suit a party having a like motive to cross
examine about the same matter as the present party would have was accorded an adequate
opportunity for such examination, the testimony may be received against the present party.
• it gets in
• US v. Salerno
• Issue:
• whether the Rule permits a criminal defendant to introduce the grand jury testimony of a
witness who asserts the 5th at trial
• Facts:
• D were part of the mob, specifically fraud in the construction industry. Two owners of a
concrete construction company testified before a grand jury with a grant of immunity. US
still tried to show they were guilty.
• Company subpoenead some of the d’s. They claimed the 5th. Company tried to get
grand jury testimony in. Court refused. Claimed motive of prosector in grand jury and
in trial are very different.
• Appellate court reversed.
• Discussion
• Court holds onto needing similar motive and that just because the law does not state all
of its conditions explicitly (such as sworn statements) motive cannot be overridden
• company also claims sometimes fre are departed from in the interest of justice. this is the
case when information is give by declarant, but here they remained silent
• fairness argument made, that grand jury shouldn’t be supressed, court disagrees
• Ok what about motive?
• argues motive not the same cause secrecy must be maintained early on
• respondents argue that this isn’t the case here because major witnesses were revealed
• motive should be further considered
• Concurrence
• motive is factual inquiry.
• Dissent
• argues the motive was the same
• Shepard v. US
• D convicted of murdering wife. Wife’s nurse testified that D had poisoned her. Also asked
for drink to be tested for poison then said that she was going to die.
• Court says this was not a dying declaration
• for this to apply the declarant must have spoken without hope of recovering and in the
shadow of impending death
• illness occurred two days before the statement, no thought she was dangerously ill, her
mind was clear, she died over 20 days later
• being worried you are going to die isn’t enough for a dying declaration, must be spoken
when death is near at hand
• US v. Sacasas
• right before dying guy said that if he died to say that D was not guilty
• no homicidal attack though and no charge of homicide
• State v. Lewis
• D convicted of criminally negligent homicide and facilitation of robbery. Morning of
robbery, owner called wife, said woman with vases was coming, after he was hot he said he
was shot in the heart.
• D described assailant as young male and black. Pointed to information about the “lady
with the vases” Said she was connected to the robbery.
• Discussion
• statement was testimonial after ongoing emergency
• is crawford met? dying declarations were set aside in a footnote
• no one has ruled against them
• argument statement was opinion not statment of fact
• opinion allowed for identifying assailant if it is reasonable in view of surrounding
circumstances
• statement admissible as long as it is more than “lay opinion”
Reading #14 (236-53)

• Declarations Against Interest
• applies to statement by anyone (unlike admissions doctrine), but only applies to statements
that are obviously contrary to the interest of the declarant, so reasonable that a reasonable
person would only make the statement if it were true.
• US v. Duran
• Facts
• Boxer claims championship belts were stolen from house
• belts were sold to undercover agents, but not by guy boxer alleged stole them
• guy who attempted to sell them said they weren’t stolen
• Issue
• whether apology should be allowed, suspected thief apologized for stealing the belts
• Discussion
• claim that apology was hearsay, allowed as describing state of mind (803(3))
• apology is evidence of then existing state of mind or emotion, admissible to prove truth
of the matter asserted (felt remorse)
• problem is state of mind exception doesn’t allow admission of why the state of mind
was possessed (I’m scared not I’m scared because)
• want to include that he asked forgiveness for having stolen the belts
• this is not under the hearsay rule
• use 804(3) instead, this is a statement against interest because it would subject the
declarant to civil or criminal liability
• was he unavailable? they did try to find him and couldn't
• US v. Jackson
• Facts
• d guilty of conspiring to import cocaine
• d claims court erred in not admittiing entire plea of co-conspirator, specifically that he new
supervised d
• Discussion
• 804(b)(1)
• d was unavailable due to invoking the 5th
• was there similar motive? plea proceeding isn’t similar enough for same motive, they
had no reason to cross examine
• 804(b)(3)
• does not allow admission of non-self-inculpatory statements, even if they are in a broad
narrative that is self-inculpatory
• without this there is no guarantees of trustworthiness
• in fact not supervising people would shrink the conspiracy and help the declarant
• statements also weren’t cooperated
• Forfeiture by Wrongdoing
• Giles v. California
• Facts
• P shot ex gf, convicted of murder, denied self defense claim
• statement of ex gf about domestic violence claim was relied on, (claim said he tried to
choke her, punched her, threatened her with a knife)
• court admitted these statements under provision that allows statements describing
infliction of or threat of physical injury on declarant when declarant is unavailable.
• Discussion
• statements were testimonial, but confrontation can be overridden when a wrongful act
leads to the confrontational issue
• prior to founding
• statements are allowed by a witness who was detained or kept away by the mean or
procurement of defendant, so long as this was done to prevent witness testifying
• case like murder would not satisfy this requirement, unless there was a dying
declaration
• problem with extending this rule too far is it presumes guilt
• no jurisprudence since founding
• intent required in all cases
• intent as means that exception applies only if the defendant has in mind the particular
purpose of making the witness unavailable
• see 4 reasons for their interpretation (246)
• doesn’t particularly help victims of abuse cause it only extends to testimonial statements
• note that cases of abuse that culminate in murder may be shown to have occurred to
prevent testimony
• Concurrence (Alito & Thomas)
• statement was non testimonial so no confrontation clause issues in the first place
• Concurring(Souter, Ginsburg)
• nothing interesting here
• Dissent (Breyer, Stevens, Kennedy)
• murder is ultimate evil practice
• knowledge of preventing testimony is sufficient for intent
• Residual Exception
• US v. Laster
• Facts
• Lasters sentenced for drug making stuff
• gov introduced sale records of drug component, wanted to get in under business records
or residual exception
• Discussion
• detective wanted to be qualified witness and laid the foundation for the business records
exception
• he did not examine the books ro ledger sheets
• didn’t know if there was an accountant or book keeper
• didn’t know if documents were prepared simultaneously with the transactions they
reflected
• so he was unqualified
• right to fit them under residual hearsay exception
• no indiciation records weren’t reliable, they are material and more probably than other
evidence, serves interest of justice, not covered by 803 or 804
• can get in under 807 even if not under 803, but should try others first
• Dissent
• argues that it only applies to evidence not covered by 803 or 804
• argues for minority approach: applies to those cases in which no rule applies but evidence
meets criteria
Reading #16 (269-87)

• People v. Zackowitz
• Facts
• D shot Coppola. Coppola and 3 other guys had been preparing a car, said something
insulting to d’s wife, d found wife in years, she didn’t repeat insult at first, he chewed out d
and the other guys, told them if they didn’t leave he’d kill them. He went back, there was a
fight, he shot Coppola. he’d been carrying the pistol and drinking
• at trial vital question was d’s state of mind
• P tried to make D look like an “evil character”, showed he kept three pistols and a tear gas
gun, this was done to show he was violent and dangerous and so more like to deliberately
and premidately kill
• Discussion
• character of d is never at issue in criminal case unless d makes it an issue, it’ll bias judge or
jury
• different story if weapons were relevant to the case (brought to the crime)
• Cleghorn v. NY Central
• Facts
• accident caused by carelessness of switchman, didn’t close switch after a train passed and
incorrectly said track was ok to the next train
• question of whether his intemperate habits could be introduced
• in a past case it was ruled that habit of intemperance didn’t necessairly show being drunk
at the time and so was irrelevant
• Discussion
• showing he was intemperate here was not done just to show he was negligent, but that
company was negligent in keeping him on, knowing of his habits
• Berryhill v. Berryhill
• P asked respondent if he had ever killed anyone in a civil suit
• this was a child custody proceeding and so character was at issue and so stuff relating to their
ability to be the custodian of a child was admissible
• Larson v. Klapprodt
• Facts
• D claims P slandered him in telling people that D was an excessive drinker and sexually
promiscuous
• P claim was reputation was already bad enough this didn’t matter
• since D is making a claim involving his character stuff about his reputation and misdeeds is
admissible
• Michelson v. US
• Facts
• P convicted of bribing a federal revenue agent. P claimed he gave the money only in
response to demands because he was entrapped by the agent. This was a he said she said
case and so issue turns on who the jury should believe.
• P brought 5 witnesses to prove he had a good reputation, see pg 278 for their defenses
• prosecution asked if they knew P had been arrested for stealing, they hadn’t, judge asked
if P had been arrested for stealing and they said he had to the best of their knowledge
• judge warned jury about the limited admissibility of this evidence
• P challenges the question
• Discussion
• common law don’t allow character evidence to establish probability of guilt
• state can’t show previous bad acts
• defendant may introduce testimony that is favorable towards his character
• testimony must be based on hearsay, can’t testify about specific acts, can’t testify about
his own independent opinion about the defendant
• this is suppose to be less biased and show the “average intelligence”
• of course if defendant brings in his character the prosecution can respond
• can bring in their own witnesses or cross examine the defendants witnesses on the
hearsay they are relying on
• court uphold judgment cause judge tried and the law, even though its a mess has worked so
far
• Dissent (Murphy, Rutledge)
• problem that d can’t rebut the fact or innuendo, jury will probably assume the robbery
happened or it wouldn’t be admitted
• this is obviously not fair
• Virgin Islands v. Roland
• Facts
• Roland tried for murder. Wife of his nephew testified, was cross examined by D’s lawyer,
asked questions about character, then on redirect murder conviction was brought up
• Discussion
• D claims error for court to allow murder conviction question, court claims asking about
Roland’s social habits opened up the line of inquiry
• forming of questions doesn’t matter either
• US v. Krapp
• Facts
• D accused of false records defrauding the gov
• D was a postmaster, an investigation revealed stamps were missing, D said she knew about
the shortage, but hadn’t told anyone or filled out the forms cause she didn’t know how
• D brought a character witness, on cross examination it was asked if witness knew D’s
husband had omitted stuff from tax returns
• Court agreed this question was no good cause only evidence was the husband committed
information on a return he never filed
• Discussion
• question needs to be fair and grounded in demonstrations of good faith
• prosecution though returns were joint returns and that the cash would’ve come up during
time the stamps disappeared
• court said not bad faith, but prejudicial question
• you need to ask judge first
• US v. Setien
• D convicted of importing cocaine
• character witness brought in, said he met with D socially during the relevant time, and that
he (the witness) had been a major cocaine importer/distrubtor, offered D money to quit job
and help him, D had said no and said drugs were bad
• testimony ruled irrelevant
• good conduct does not negate criminal intent
Reading #17 (287-305)

• US v. Beechum
• D stole silver dollar from the mail. Gov introduced credit cards found on D which weren’t
issued to him and not signed by him and mailed to address on his route
• evidence of extrinsic offenses should not be admitted just to show bad character
• Two step test:
• must be determined that the extrinsic offense evidence is relevant to an issue other than
the defendant’s character
• the evidence must possess probatitve value that is not substantially outweighed by undue
prejudice and meet other requirements of 403
• look at availability of other evidence and means of proof
• application
• having illegal credit cards makes it unlikely he would turn in the silver dollar
• other proof of intent was calling in supervisor to show D had chances to turn in the
silver dollar and didn’t, d called employees who would testify other wise, credit card
evidence would’ve tipped the scales
• also he kept the credit cards, so even though it had been awhile since he stole them
they were close by at time of crime, wrongful intent was always there
• US v. Boyd
• D marijuana trafficking
• evidence was d using marijuana and cocaine
• he claims it was just showing bad character
• gov claimed he was trafficking to support his habit
• so submitting personal use would show motive
• the evidence of doing drugs wasn’t more sensational than the crime he was charged
with, jury had heard evidence that he supplied 100s of pounds of marijuana
• US v. DeJohn
• D uttering and publishing treasury checks
• evidence was YMCA security guard stating he arrested D when he found d behind reception
desk of YMCA
• evidence was police offer that searched d and found treasury checks from behind the
reception desk at a different time
• evidence of similar action is admissible when purpose is not just to show propensity to
commit the crime
• testimony showed opportunity, which was relevant once d argued it wasn’t their client who
forged the checks
• Lewis v. US
• d convicted of burglarizing post office and destroying gov property
• evidence was testimony he had early robbed garage store earlier that night
• this shows plan and intent cause he stole equipment which would let him rob a post office
• US v. Crocker
• d convicted conspiring to rob a bank by cashing counterfeit checks and acting as a co-
conspirator by driving someone else to the banks to cash the checks
• evidence was his prior arrest
• showed defendant knowingly participated in the conspiracy
• he had previously been arrested in a car with counterfeit checks, so he knew this was bad
• US v. Dossey
• D convicted of armed bank robbery
• evidence, bank teller said she was approached by young white female who drew a pistol and
demanded money, teller described robber, said d “looked like” the robber, but wasn’t certain
• evidence, testimony put d near robbery at the right time
• evidence, testimony of hearing d say she robbed banks in little rock in a way that lined up
with teller
• same testimony said d robbed bank in AZ with same approach and had robbed MN bank
• AZ robbery evidence gets in cause it identifies who robbed AK bank, which is important
cause teller couldn’t identify
• MN testimony was irrelevant, judge gave good jury instructions
• US v. Wright
• d convicted of distributing cocaine and doing so near a school
• under cover officers bought coke in daylight, didn’t arrest, got warrant
• warrant had D saying over phone he was coke dealer, but he didn’t admit the specific sales
that under cover officers were involved in
• judge said jury had to be limited to identifying and intent
• but there was no issue of intent, so jury could’ve only used phone call for identity
• by identity judge must’ve met guilt, which isn’t ok, there is no relation between phone
call and specific sale
• phone call was not immaterial due to officer identification during earlier sale
• Huddleston v. US
• Issue
• Must the district court make a preliminary finding that the gov has proved the other act by
a preponderance of the evidence before it submits the evidence to the jury
• NO
• Facts
• D charged selling stolen goods in interstate commerce, posing stolen property in interstate
commerce, specifically videocassette tapes
• tapes stolen from illinois, sold in MI, issue is whether seller knew the tapes were stolen
• introduced similar acts
• case of selling black and white tvs out of same MI place
• under cover agent bought appliances from O, Wesby was driving the truck
• argue tapes, tvs, and appliances all provided by Wesby, who had claimed it was all
legititimate
• P claimed he was selling tapes from Wesby, didn’t know goods were stolen
• Discussion
• P argues that evidence admitted for proper purpose (showing knowledge), but claims that
no evidence that tv’s were stolen
• wanted 104(a) examination before claim submitted
• 404 doesn’t make any claim about preliminary showing, just proper purpose
• must be relevant and jury must reasonably conclude that the act occurred and the
defendant was the actor
• in this case it was a 104(b) issue about whether the tvs were stolen
• with 104(b) look at only whether jury could reasonably find the fact by
preponderance of evidence
• this can be done from low price, large quantity, no bill of sale, and involvement
in selling stolen merchandise in the past
Reading 18 (314-40)
• Rape Shield Laws
• Character evidence used to be allowable in sexual assault cases to show lack of charity of
victim
• Graham v. State
• P tried to introduce character evidence about the victim not being chaste
• jury might have tried to have sex, but when that was denied she would have fought which
would’ve lead to injuries
• Olden v. Kentucky
• Facts
• Matthew went to bar with friend, separated from friend, got in car with P and Harris, had
sex in car twice, dropped off at Russels house/ Claimed to have been raped by P twice
(once at first then alter at dump), P claimed consent.
• State wanted to introduce Matthews was living Russel cause while both were married to
show motivation for Matthews saying she’d been raped.
• Trial court kept this out
• P convicted of forcible sodomy, but not kidnapping and rape (Harris off on all accounts)
• inconsitiencies in testimony (who raped her, was Russell armed, etc.)
• Discussion
• Claim that suppressing living arrangement and denying motive violated 6th amendment
• claim that living arrangements bared by rape shield laws
• probative value outweighed by prejudice (since Russell was black)
• Confrontation clause issue cause cross examination was limited
• reasonable jury might have had different opinions with testimony
• guessing about jury’s racial biases cannot justify exclusion of cross-examination with such
strong potential
• the testimony in this case was not harmless, mainly supported by Russell’s testimony, to
not exclude have to conclude beyond reasonably doubt that testimony is harmless
• US v. Pablo
• Facts
• Two groups met after a dance driving two cars. One car got stuck and there was some
towing. Eventually Gordo and D attacked boyfriend of victim. Gordo and D drove away,
victim woke up in truck, claims she was raped in truck after truck got stuck.
• D wanted to introduce that victim had been seen undressed with two other men that night
and that victim made advances on Gordo.
• Discussion
• issue is whether evidence D wants in meets exceptions
• wants the evidence of undress to get in to show others were source of vaginal injuries,
that she was intoxicated, and unreliable testimony (partially 421(b)(1)(A))
• failed to raise this in district court and no plain error
• not explanation for vaginal injuries, those injuries only in rape not consensual sex
(unless really violent)
• he didn’t show sex, least of all rape or violent consensual sex
• level of intoxication shouldn’t be in cause he wanted it in to show she was more
likely to engage in casual sex
• wanted earlier sexual advances under 412(b)(1)(C)
• these were awhile before sex, in a different car, and a different location
• claims that without showing consent in the first case he couldn’t show consent in the
second (sex with him)
• again under plain error standard
• jury disbelieved other testimony about her consenting
• even if this got in still possible he raped her after consensual sex
• US v. Smith
• Facts
• At coast guard academy, victim made a mistake (“indiscretion” having sex with enlisted
member) that could have jeopardized her career, D sent text saying he hoped it wasn’t the
case and said he’d try and squash rumors and that everything’d be ok
• When they got back to school rumors persisted, D said he’d help, but that he needed a
naked picture to build trust. Eventually he came back and performed oral sex and fingered
her, she did the same.
• Discussion
• D wanted to get in evidence of her indiscretion under 412(b)(1)(C)
• D said he’d been told by victim she’d had noncensual sexual encounters with enlisted
member, but later said they were consensual. Wanted to testify about these to show she
lied about sexual enocunters.
• Judge only let in that indiscretion could’ve effected her career
• victim admited she’d lied about the situation, which game chance to impeach her
credibility
• Concurrence
• No obligation of d to tell about her sexual encounter, lying to him doesn’t mean she’d lie to
police
• Victim reported their sexual encounter, showing she won’t hide misconduct
• Just needed to know lie, not specificity of misconduct
• Concurrence/Dissent
• logical argument can be made if specific evidence admitted
• lost his best chance for getting notice
• US v. Lecompte
• d abuse wife’s niece
• moved to exclude prior uncharged sex offenses against another niece by marriage
• had been admitted under 404(b), later overturned
• could it get in under 414
• yes, but excluded by 403(excluding relevant evidence for prejudice)
• examined probative value (see pg 336)
• prejudicial value (very high)
• however
• strong legislative judgment that evidence of prior sexual offenses should be
admitted so probabtive value was enough
• prejudice of this kind is allowed by the rule
Reading 19 (341-68)
• Higgins v. Hicks
• d resurfacing road, drop off in different lanes, caused injury
• claim was should’ve been signs v. contributory negligence
• jury found in favor of d
• evidence at issue: state has liability insurance, eliminate bias of jurors as tax payers
• needs to relevant to prove bias or prejudice of witness, or be relevant in the case
• ACN 411 say liability insruance would lead to findings on improper grounds
• Charter v. Chleborad
• malpractice case; p struck by truck while working as highway flagman, complications in
surgery, transferred and legs amputated above the knee
• dr testified that amputation result of negligence, d offered testimony of lawyer who said dr
who gave testimony had bad rep (said he represented insurance companies in med mal cases)
• in this case that the attorney was employed by the same insurer is relevant for credibilityy
of witness, expert testimony mattered, not harmless error
• US v. Mezzantto
• Facts
• d arrested for selling meth to undercover agent
• d met with prosecutor to discuss cooperation, d told by prosecutor he had to be truthful and
any statements he made then could be used to impeach contradictory testimony during trial
• d said he knew he was selling meth, but only small amounts. tried to distance himself
from manufacturer, was shown video of him at the house
• gave contradictory testimony, p bought agent to recall statements
• Discussion
• there isn’t a waiver exception to FRE 410
• generally waivers to FRE are ok
• common to stipulate prior to trial
• some rules may be to important to waive, but this does not seems to be case here
• waiving this rule allows more accurate trials
• waiving this might discourage settlement, but some prosecutors wouldn’t proceed without
it
• disparity in barganing power, yes but mere existence in disparity of power doesn’t
invalidate the rule
• Holding:
• absent some affirmative indication that the agreement was entered into unknowingly or
involuntarily, an agreement to waive the exclusionary provisions of the plea-statement
Rules is valid and enforceable.
• Dissent
• waiver only ok cause d can’t really object
• argue that allowing waivers for impeachment will allow more general waivers, evidence
can be used in the general case
• PRL USA Holdings v. US Polo Association
• appeal on trademark infringement denial
• both organizations had mounted polo players, polo association had 2 PRL had 1
• evidence: consumers were likely to confuse the horsemen, counter by PRL. then evidence
that PRL had consented to USPA using double horsemen (objection cause it consisted of
staemtenents made in compromise negotiations)
• FRE 408 has exception if not offered for primary claim, in this case it was offered to show
PRL was estopped from claiming infringement
• evidence certainly was made in compromise negotiations, essentially offered against
infringement claims (if estoppel succeed infringement would fail)
• if PRL succeeded 408 would loose all meaning, all evidence at trial is meant to help
establish its own position
• Carney v. American University
• discrimination suit (for not being selected as dean and later for being fired), and that
severance pay withheld in retaliation for her exercising her civil rights
• discrimination waived in summary judgment
• district court says no evidence of causation for severance pay
• severance package formed before knowledge of lawsuit
• 408 prohibited Carney from relying on settlement correspondence
• Carney offered evidence that could show retaliation
• Settlement letters are inadmissible to prove liability or amount, they are admissible when the
evidence is offered for another purpose. in this case it was offered to show retaliation, which
is unrelated to the underlying claim (offered for showing benefits conditioned on waiver of
rights not discrimination)
• Ramada Development v. Rauch
• Ramada built hotel, D stopped paying at some point
• evidence: Goldsmith Report; architect paid to study defects, held inadmissible because it was
tool in failed settlement attempt
• FRE 408 meant to foster free settlement
• report made in effort to compromise and so it is anadmissible
• counter argument
• just cause something in compromise it isn’t excludable (yes but this was made
explicitly for compromise)
• offered to show defects and knowledge of defects and that is another purpose (maybe,
but not enough that court abused discretion)
• US v. Davis
• treasure of frat accused of stealing
• had been making checks out in cash and not depositing them
• d had said “can we just split money and make this go away”
• was this a settlement/negotiation?
• he was offering to compromise disputed claim (there was a give and take: what would
it take to make this go away, pay it all back, split 29k, there was over 100k missing)
• exception for buying off prosecution or prosecution witness, but no charge of
obstructing investigation
• Clausen v. Storage Tank Development Corp
• Facts
• p slipped and fell on job
• evidence at issue is that ramp (where P fell) was replaced by stairs
• FRE 407 allows subsequent or remedial measure to prove negligence or culpable conduct
when offered for another purpose such as proving control
• control of ramp area was material issue (claim that employer in charge of area)
• ramp replaced 3 years later so not probative, maybe but that is not enough for plain error
• there was a sufficently limiting jury instruction, again no plain error
• In re Asbestos Litigation
• wrongful death suit, guy worked with asbestos manufactured by Crane
• evidence: warnings placed on asbestos product after last exposure by d
• does language of whether they were not there during injury differ from they were put on
after, does saying they were put on after get in under 407
• feasibility wasn’t a contested issue
• Diehl v. Blaw-Knox
• injured as construction worker, machine backed over him
• claimed machine defective (lacked a bumper over rear wheels, inaudible backup alarm,
lacked proper warnings)
• after incidence bumper was installed, backup alarm moved, warning signs placed on back
of machine
• done in response to accident and to prevent future accidents
• 407 policy concerns not implicated when the remedial concerns not taken by a party of the
law suit
• district judge ignored this, which makes some sense, but ACN side with above
interpretation
• district court shouldn’t of excluded
• 403 use because worry of unfair prejudice
• many reasons after market modifications made and there is prejudice possibility (also
possible that modifications couldn’t of been made hten)
• however in this case the changes could’ve been made just as easily then as now
• redesign done in response to injury, so no worry of prejudice
Reading#20 (395-415)
• US v. Lollar
• conviction of interstate transport of stolen property
• witness (former employer) asked whether he would believe appellant under oath, he denied
• once criminal d testifies he places his credibility at issue
• this means his believability as a witness
• originally it was ok “would you believe this person under oath”
• FRE 608 addressed this directly, said it was ok
• US v. Rosa
• D part of cocaine trafficking ring, D testified for the government
• other conspirators wanted to cross examine about criminal conduct D hadn’t been convicted
of
• judge said conduct wasn’t probative of truthfulness or untruthfulness
• allowed questions about oath of loyalty to crime family and fraudulenty insurance claims
(fraud bears on character), just alleged bribing of public officials that was excluded
(doesn’t bear on truthfulness)
• US v. Ling
• D convicted of making drugs and conspring to violate narcotics laws
• D admitted he agreed to make DMT for a motorcycle gang
• claimed he was going to sabotage the manufacture before it was complete
• evidence showed he wasn’t popular with the biker gang, apartment had been robbed and he
had been beaten
• said he owned guns, but hadn’t shot or threatened anyone, only drank on occasion
• cross examination, he dnied shooting guns on public street, officer testified he had
arrested Ling for this (Ling denied firing weapon wasn’t charged) and drinking and
driving (too low bui too get charged)
• when a dis cross examined for the purpose of impeaching his credibility by proof of
specific acts of past misconduct the subject of a conviction, the examiner must be
content with the witness’ answer (can’t introduce independent evidence)
• US v. White
• intent to distribute and possesion of cocaine
• d wanted to show extrinsic offense committed by gov witness
• he had offered to fabricate testimony previously to get leniency
• only can get evidence of this on cross examination of witness not with independent
evidence
• 404(b) prohibts external evidence to show witness had a proclivity to lie
• 608 probibts extrinsic evidence to show specify instances of misconduct
• US v. Aponte
• conspiracy to rob USPS truck
• sworn statement with false descriptions and fabricated statements describing robbers, not
hearsay
• excludable under 608 as extrinsic evidence of specific instances of deception
• US v. Wong
• D charged with mail fraud and racketeering
• D had previously been convicted of mail and medicare fraud, D moved to preclude the use of
those convictions for impeachment
• court let them in cause they involved dishonesty and false statements and didn’t balance
prejudice v. probabtivw value
• The distinction between 609(a)(1)&(2) is what’s at issue
• 609(a)(2) doesn’t require balancing test, but D claims it odes under 403
• 403 doesn’t overcome specific rules
• 609(3) would’ve specifically addressed 403, but when 609 was redrafted the legislative
history makes it clear 403 doesn’t apply
• US v. Amechi
• convicted of drug trafficking based on evidence of taking deliver of suitcase full of drugs
• D argues that evidence of witness shoplifting conviction should’ve been included
• 609 requires the crime’s punishment to exceed a year (it didn’t) or involve dishonesty or
false statements
• shoplifiting is not a crime of dishonesty (court doesn’t like underlying logic of the rule
though)
• US v. Sanders
• D assault with dangerous weapon intent to do bodily harm
• D filed motion to exclude evidence of prior convictions
• court didn’t allow cross on stabbing and armed robbery (convictions had been overturned),
but did allow assault and contraband possession
• issue was balancing of prejudice and probative value
• particularly with similair offenses, no explicit balancing test, but even if there had been
the prejudicial value is too great
• no probative value to get the crimes to show 404(b) intent, only fact at dispute was
reason for admitted act, not related to old crimes
• US v. Oaxaca
• D charged with armed robbery
• P wanted to show two prior felony convictions, d wanted to limit inquiry into nature of the
convictions, judge disagreed (burglary and bank robbery)
• argues evidence was more prejudicial than probative
• crimes reflected adversly on honesty and integrity
• doesn’t matter that bank robbery was same crime, that is not per se exclusion, important
due to their impeachment value
• US v. Hernandez
• D convicted of conspiracy to kidnap
• D claims prior conviction (Possession of cocaine and marijuana) shouldn’t of been admitted,
claims those were related cause kidnapping was done to get money and pay back a drug deal,
he admites this shows bad character
• conviction 5 years earlier (within 609)
• credibility was important enough similarity was overlooked
• Luce v. US
• P charged with conspiracy cocaine possession and distribution
• P moved to exclude state conviction to impeach him if he testified, he never said he would
testify or what he would testify about
• gov said conviction fell under 609(a), but it would depend on nature of testimony
• can’t know how conviction will be used until testimony is made
• can’t be sure refusing entrance of conviction will influence testifying
• question of harmless error

• tesifying is required for 609(a) claims
• Ohler v. US
• possession and distribution of marijuana
• testified and admitted convicted of possessing meth in the past (motion to do so granted in
limine for gov, but P testified about it and then tried to challenge the validity of the in limine
ruling)
• don’t want d to have to wait for conviction to be introduced on cross examination, better to
get it out of the way first. gov disagrees this effects credibility, says if it works it is unfair
cause the conviction is only introduced after trying to get the gov not to introduce the
conviction
• P claim would deny gov right to decide after testimony whether to use past conviction (want
to submit it herself and persevere admission as a claim of error on appeal)
• can’t claim denial of right until the evidence is brought forth an in limine ruling is not
enough

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Evidence Reading Notes

Reading #2 (24-38 and FRE 404,405) Probative Value and Prejudice

Reading #3 (38-42, 703-10, 43-51, US v. Vayner .pdf)

Reading #4 (51-62) Hearsay

• p claimed negligence of D lead to p’s death

• this is different than excited utterances

Reading #10 (167-82)

Reading #11 (182-95)

Reading #12 (195-218)

Reading #14 (236-53)

Reading #16 (269-87)

Reading #17 (287-305)

• question of harmless error

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