Evidence Outline

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Evidence
Prof. Strickler
2009
UNIT I – RELEVANCE
Rules: 401, 402, 403, 104(a), 104(b), 407 - 411
CHAPTER 1 – GENERAL PRINCIPLES of RELEVANCE
Rules: 401, 402, 403, 104(a), 104(b)
I. Probativeness and Materiality

• FRE 401, 402, and 403 are the primary “relevance” rules
• 402 establishes the basic principle that evidence that is not relevant is not admissible,
while most evidence that is relevant is admissible.
• 403 is one of the exceptions to the norm that relevant evidence is admissible (402) 
relevant evidence may be excluded if it poses problems that substantially outweigh its
probative value.
• 401 defines relevance – Relevant evidence means evidence having any tendency to make
the existence of any fact that is of consequence to the determination of the action more
probably or less probable than it would be without the evidence.  So there are really 2
definitions in 401 (See Diagram on p19):
o 1. Materiality: Evidence must be material – that is, it must bear on a fact that is
of consequence to the determination of the action.
 Whether evidence is material turns on what issues are at stake, which
usually turns on the substantive law of the jurisdiction; to decide whether
an issue is material, look to the substantive law.
 Example: Evidence of a victim’s lost earning potential is immaterial (and
therefore irrelevant) in a criminal murder trial, but material (and possibly
relevant) in a civil wrongful death suit.
o 2. Probativeness: Evidence must be probative of a material fact. The evidence
must have a tendency to make the existence of that fact more probable or less
probable than it would be without the evidence.
o Logical relevancy
• Relevancy is not an inherent characteristic of any item of evidence but exists as a relation
btn an item of evidence and a proposition sought to be proved. If an item of evidence
tends to prove or disprove any proposition, then it is relevant to that proposition.
o An offered item of evidence may be excluded as irrelevant for either of these 2
reasons: (1) bc it is not probative of the proposition at which it is directed; (2)
because that proposition is not provable in the case.
• Two kinds of evidence:
o 1. Direct evidence – if the evidence is believed, then the fact is established; no
inference has to be drawn; just have to believe. Example: Eye-witness testimony
 Evidence  Fact
o 2. Indirect / Circumstantial Evidence – does not directly prove anything but leads
to inference that something happened / establishment of fact; requires deductive
reasoning.
 Evidence  Inference  Fact
o Evidence + A premise or generalization about the way things are  Material Fact
• 401 and 104(a) doesn’t allow the jury to decide if it is relevant and if it’s not, then they
can dismiss it; the judge has to determine whether to admit or reject the evidence.
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• US v. JAMES
o Question: Should the TJ have allowed court documents, detailing Ogden’s violent
past or was it irrelevant for the self-defense claim? – It should have been
allowed.
o Holding: The records, if admitted, would have corroborated D’s testimony that
she had heard Ogden tell her the stories of his violent past. The DCt thought the
only function of the evidence would have been to show D’s state of mind and that,
since she had not seen the records, the documents proved nothing as to her state
of mind. That interpretation was too narrow. Because the crux of D’s defense
rested on her credibility and bc her credibility could be directly corroborated
through the excluded documentary evidence, exclusion was prejudicial and more
probably than not affected the verdict
II. Conditional Relevance
o FRE 104(b) Relevancy conditioned on fact - When the relevancy of evidence
depends upon the fulfillment of a condition of fact, the court shall admit it upon, or
subject to, the introduction of evidence sufficient to support a finding of the fulfillment
of the condition
• Compare 104(a) with 104(b)
o 104(a)
 Judge determines
o 104(b)
 Judge asks if there is sufficient evidence for a reasonable fact-finder to
decide that the condition was fulfilled
 Burden of proof standard is a mere preponderance of the evidence.
o COX v. STATE
o Question: Was the admission of the evidence proper? Under 104(b), did the ct
make a preliminary determination that there was sufficient evidence to support a
finding that the conditional fact (that D knew about what happened at the bond
reduction hearing) existed? - Yes.
o Rule: Standard for determining if the evidence is sufficient to support a finding
of the conditional fact: This court adopts the standard that the judge must
determine only that a reasonable juror could make the requisite determination
based on the evidence before it.
o Analysis: The admissibility of Puckett’s testimony is governed by 104(b). The
relevance of Puckett’s testimony depends on a condition of fact – whether D
knew about what happened at the bond reduction hearing. Here, the state
introduced evidence that D spent almost every day at the Hammer house where
Hammer’s mother lived. Hammer and Cox were close friends and Hammer’s
mother attended the hearing. This evidence is sufficient to support the inference
that Cox had learned what transpired at the hearing. The admission of evidence
was proper.
o A. The Problem of Conditional Relevance
o In Cox and Fitzhugh (Prob 1.7), there is evidence that might be relevant, but only
if some other condition is met. In each case, 104(b) tells us that the contested
evidence is admissible only upon, or subject to, the introduction of evidence
sufficient to support a finding of the conditional fact. The theory behind the rule
is that the chain of inferences leading from the contested fact to the conclusion of
D’s guilt is severed if the conditional fact is not established.
o B. 104(b) v. 401: How do we know when the evidence is conditional?
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o It seems that all cases involve conditional relevance and a chain of inferences.
Most experts agree that there is no separate problem of conditional relevance
 Within any logical chain of inferences, a clever lawyer could spot a

missing link. Those lawyers would then argue a conditional relevance
objection and force the judge to analyze the problem under 104(b).
Where no conditional relevance objection is made, the judge is likely to let
in the proffered evidence so long as it surmounts the bare relevance
standard of 401.
o 401 Standard – bare relevance: The TJ would ask simply whether the evidence
has any tendency to make the existence of a fact relevant to the outcome more
probable or less probable. Example: Whether the outcome of Hammer’s bond-
reduction hearing had any tendency to make it more probable that Cox had a
motive to kill (and therefore did kill) Leonard. The answer would presumably
have been yes, as long as there was any non-negligible chance that Cox had heard
about the outcome of the hearing.
o 104(b) Standard – conditional relevance: The TJ would only admit the evidence
if the prosecutor introduced sufficient evidence to support a finding that a
relevant condition was fulfilled. Example: Evidence of the bond-reduction
hearing could come in only if the prosecutor had introduced evidence to support
a finding that Cox had heard about the hearing.
 What kind of finding is needed? – In HUDDLESTON v. US, the SCt found

that 104(b) requires that the proponent introduce sufficient evidence
that the jury could reasonably find the conditional fact by a
preponderance of the evidence (lenient).
• Therefore, there is little difference in the HUDDLETON standard

of conditional relevance for 104(b) and 401’s bare relevance
standard.
o C. “Upon, or subject to” in 104(b)

o If evidence of the fulfillment of the condition is not already in the record, the
judge may permit the evidence to be permitted subject to evidence of the
connection being admitted. The prosecution still must introduce evidence that
connects the evidence and the outcome/fact; if the prosecution fails to do so, the
judge will instruct the jury to disregard the conditional evidence.
III. Probativeness v. The Risk of Unfair Prejudice
• 403 – virtually every piece of evidence admitted at trial must survive this rule’s
Probativeness-versus-risk-of-unfair-prejudice weighing test. Only the narrow class of
evidence defined by 609(a)(2) is altogether exempt from 403 scrutiny. Must first be
admissible under 401 to undergo 403
o Although Relevant…: 403 permits exclusion of otherwise relevant evidence.
o Evidence may be excluded…: may; decisions whether to exclude evidence under
403 are committed to the TJ’s discretion and are reviewable on appeal only for
abuse of discretion.
o If probative value is substantially outweighed by…: 403 is a liberal evidence
rule in that it is friendly toward admission of evidence. Even if the evils of
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evidence actually outweigh probative value, though only slightly, the rule still
grants no permission to exclude; the evils must substantially outweigh the
probative value.
o The danger of unfair prejudice…: Relevant evidence is inherently prejudicial;
but it is only unfair prejudice, substantially outweighing the probative value,
which permits exclusion of relevant matter under 403.
o The danger of confusion of the issues, or misleading the jury
o Or by considerations of (1) undue delay, (2) waste of time, or (3) needless
presentation of cumulative evidence
• A. Photos and Other Inflammatory Evidence
o STATE v. BOCHARSKI
 Question: Under 403, did the prejudice of the gruesome photos outweigh
their probative value? – Yes, but they did not affect the outcome of the
trial.
 Rule: Standard for admissibility of photographic evidence: Relevant
photographs may be received in evidence even though they also have a
tendency to prejudice the jury against the person who committed the
offense. However, if a photo is of a nature to incite passion or inflame the
jury, the ct must determine whether the danger of unfair prejudice
substantially outweighs the exhibit’s probative value. A TCt’s decision in
this regard will generally not be disturbed unless we find a clear abuse of
discretion.
 Holding: Here, the photos introduced by the state went to largely
uncontested issues; D did not challenge the fact of the victim’s death, the
extent of her injuries, or the manner of her demise. The issue is over two
of the photos, which were admitted for the purpose of showing the angles
of the wounds; however, there was no testimony at trial rendering the
photos particularly meaningful. The pictures had little tendency to
establish any disputed issue in the case; accordingly, the photos were
introduced primarily to inflame the jury. Judges have an obligation to
weigh the prejudice against the probative value; but here, he did it wrong.
However, their admission did not prejudice the jury.
o COMMONWEALTH v. SERGE
 Brief Fact Summary: Defendant appeals his conviction
for murder after the prosecution introduced a computer-
generated animation short based on the prosecution's theory of
the case.
 Rule of Law and Holding: "It should be noted that
conspicuously absent among the factors to be considered in
determining the relevancy and prejudice of evidence is the
potency of the evidence. Thus, although the use of illustrative
demonstrative evidence by an expert, such as a CGA, may help
explain his or her opinion and make the testimony more
persuasive than it otherwise might have been, it is not proper
grounds for excluding this relevant evidence.
o U.S. v. JAMES – SEE PREVIOUS CASE DESCRIPTION
CHAPTER 2 – THE SPECIALIZED RELEVANCE RULES
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Rules: 407-411
I. Intro
• FRE 407-411 reflects the rule-writers’ judgment that, as a matter of law, the evidence it
governs fails a 403 weighing test.
• See CHARTS (81-83)
• FRE 407, 408, 409, and 411 all prohibit only certain uses of the evidence they govern,
while permitting all other uses. 410 is a distinct outlier, as it bars evidence of aborted
pleas of guilty or no contest for all purposes and specifies only 2 narrow windows of
admissibility.
II. Subsequent Remedial Measures
• FRE 407
• Third Party Reparis
o Most courts admit evidence of subsequent remedies carried out by someone other
than D bc the public policy of the rule provides no grounds for excluding evidence
of third-party repairs. However, some cts disagree bc the language of 407 states,
“When…measures are taken…”, implicating that when anyone takes measures.
o How can another party’s later repair be relevant to D’s negligence?  The
probative value of most subsequent remedies is that they amount to an admission
by D that its previous conduct was unsafe. Some cts have found that evidence of
third-party repairs, although not barred by 407, has too little probative force to
get past 403.
• Strict Liability: A 1997 amendment to 407 made it clear that the rule applies in strict
liability (defective product) lawsuits.
• “If Controverted”: The qualifier, “if controverted,” should be construed to apply to
ownership, control, and feasibility.
• TUER v. MCDONALD
o I. Feasibility: The issue about feasibility that arose here was when D offers some
other explanation for not putting the measure into effect sooner – often a
judgment call as to comparative value or a trade-off btn cost and benefit or btn
competing benefits – and P characterizes that explanation as putting feasibility
into issue. Here, D was not asserting in any absolute sense that restarting the
Heparin would have been unsafe but only that, given the complications that could
have arisen, and that, in other cases had arisen, from an inadvertent puncture of
the carotid artery, weighed against Mr. Tuer’s apparently stable condition at the
time and then intensive monitoring he would receive during the waiting period,
there was a relative safety risk that, at the time, he and the hospital believed was
not worth taking. That does not constitute an assertion that a restarting of the
Heparin was not feasible. It was feasible but, in their view, not advisable.
o II. Impeachment: Whether the evidence is allowed for impeachment seems to
depend more on the nature of the contradiction than on the fact of it. Consistent
with the feasibility approach, SRM evidence has been held inadmissible to
impeach testimony that, at the time of the event, the measure was not believed to
be as practical as the one employed, or that D was using due care at the time of
the accident. With respect to the reasons cited to the feasibility issue, the change
in protocol was inadmissible to impeach D’s brief statement that restarting
Heparin would have been unsafe. The statement must be read in context. The
belief that it was “unsafe” was a judgment call and based on the knowledge at the
time. The fact that the protocol was changed following Mr. Tuer’s death in no way
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suggests that D did not honestly believe that his judgment call was appropriate at
the time.
III. Compromise Offers and Payment of Medical Expenses
• FRE 408 and 409
• 408 excludes evidence of conduct or statements made during compromise negotiations.
o 408 only applies in civil cases; 410 addresses compromises in criminal cases.
o 408 does not protect offers to compromise made before a “claim” of some sort
has been made
o The policy considerations which underlie 408 do not come into play when the
effort is to induce a creditor to settle an admittedly due amount for a lesser sum.
Hence, the rule requires that the claim be disputed as to either validity or
amount.
o May evidence of statements be used to impeach?
 With 410, Congress specifically rejected the use of statements made
during negotiations to impeach D if she later testifies at trial in a criminal
case. 408 does not say whether statements made during compromise
negotiations may be used to impeach a witness who later makes
contradictory statements in courts:
• For impeachment – The language of the Rule: A strict reading of
408 suggests that there is no bar against statements made during
compromise negotiations if used to impeach later contradictory
statements.
• Against impeachment – The Rationale of the Rule: 408 is meant
to encourage settlements. If inadvertent statements made during
negotiations can be later used against you in trial, then it will
frustrate the purpose of the rule.
• 409 bars evidence of a person’s statements to pay the other’s medical bills, but will not
bar evidence of anything else including careless blubbers such as apologies, etc.
• Compromises with Third Parties: Neither 408 nor 409 limits its exclusionary reach to
compromises or payments btn the 2 parties in this suit. Evidence that one of the parties
in the suit settled with a 3rd party, if offered to prove liability for or invalidity of the claim,
is also barred by the rule. But remember that such settlements may be admissible to
show a witness’s bias; for example, a witness may be biased in favor of a party that it
settled with or vice versa.
• BANKCARD AMERICA v. UNIVERSAL BANCARD SYSTEMS
o Holding: 408 forbids the admission of statements made during settlement
negotiations to prove liability or the lack of liability. The rule does not require
exclusion when the evidence is offered for another purpose, such as proving the
bias or prejudice of a witness. It would be an abuse of 408 to let P lull D into
breaching the K and then prevent D from explaining its actions bc the lulling took
place around the settlement table. D’s testimony was admitted to show his state
of mind and to explain why D converted accounts (ie: breached). The purpose of
408 is to encourage settlements. Settlements will not be encouraged if one party
may seduce a party into violating a K during settlement and then accuse the other
party of violating the K, without the other party having the opportunity to rebut
that at trial.
IV. Liability Insurance
• FRE 411
• Two rationales
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o 1. Having insurance doesn’t have any probative value that you were negligent
o 2. Danger of unfair prejudice
V. Pleas in Criminal Cases
• FRE 410  Unlike the other specialized relevance rules, the evidence that 410
addresses is always barred except where specifically permitted.
• UNITED STATES v. BIAGGI
o Facts: D sought to prove that P had offered him immunity if he would give what P
regarded as truthful information regarding wrongdoing by other Ds and various
public officials, and that D, in response to this offer, denied knowledge of any
such wrongdoing, thereby “rejecting” immunity. P does not dispute that it made
the offer but contended that P had rejected immunity for D after reaching the
conclusion that the testimony he would give, based on his denial of knowledge of
wrongdoing, was not credible. Was evidence of the offer admissible? - Yes
o Holding: Even on P’s view or the matter, it rejected immunity bc D did not come
forward with incriminating evidence about the other Ds. The available inference
is that he really lacked such knowledge, as he claimed throughout the trial. The
inference is the same whether the immunity offer is viewed as “rejected” by D’s
inability to satisfy P’s condition or “rejected” by P’s assessment that its condition
was not satisfied. Plea negotiations are inadmissible against D, according to 410,
but it does not necessarily follow that P is entitled to a similar shield. The
probative force of a rejected immunity offer is clearly strong enough to render it
relevant under 401.
UNIT II – RELIABILITY
Rules: 801, 802, 803, 804, 805, 807 104
CHAPTER 7 – HEARSAY
Rules: 801, 802, 803, 804, 805 807, 104
I. Defining Hearsay
• 801(a)-(c); 802
• The Hearsay rule is about the reliability of the evidence the jury hears.
• Hearsay is an out-of-court statement offered by a litigant to prove what the statement
asserts. To decide whether any particular out-of-court statement is hearsay, we must ask:
o 1. Is the litigant offering the statement to prove (the truth of) what is says?
 Non-Hearsay Uses of Out-of-Court Statements:
• When deciding whether evidence of an out-of-court statement is
or is not hearsay, focus on what the statement is offered to prove
and how the statement proves that fact. Example: B offered
evidence that A told him, “Watch out for Joey. He’s looking for
you, and he has a gun.” If this statement was offered to prove that
Joey really was looking for him and really did have a gun, then A’s
statement would be hearsay. On the other hand, the testimony
would not be hearsay if offered to prove that he had reason to fear
Joey at the time of the attack. In that case, B is not offering A’s
statement to prove the truth of what is asserts. The evidentiary
significance of A’s words, when offered to prove B’s reasonable
fear of Joey, does not depend on the soundness of A’s testimonial
capacities.
• The critical question is whether the litigant is offering evidence of
the out-of-court statement to prove what the out-of-court speaker
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was asserting (hearsay use) or merely to prove that the statement

was made and heard (non-hearsay use).
o 2. Is it an assertion?
 Conduct as an assertion
• Non-assertive conduct cannot constitution hearsay. Some conduct
is clearly assertive. This is so when conduct (often a gesture) is the
equivalent to a verbal assertion. An example is when a person rubs
his thumb and fingers together to mean money.
• One has to intend his actions to communication something. And
that communicative intent is the essence of an assertion. The
Advisory Committee Note to 801(a) states, “nothing is an
assertion unless intended to be one.”
• Where evidence of non-verbal conduct is relevant only as
supporting inferences from the conduct to the belief of the actor
and thence to the truth of his belief, prevailing doctrine
stigmatizes the evidence as hearsay, inadmissible unless
accommodated within one of the exceptions to the rule.
• A key difference between assertive conduct and non-assertive
conduct is the out-of-court actor’s sincerity. If a person does not
intend to assert anything (or there is no audience), then the person
could not have been lying, because a man does not lie to himself.
But a person who intends to assert something (or has an audience)
could be lying to them. 801 is our unwillingness to rely on the out-
of-court declarant’s sincerity.
• Note that the distinction btn an assertion and a nonassertion often
will depend on context. When trying to determine whether certain
conduct is an assertion, ask yourself, “Could this conduct be a lie?”
If a person acts without an audience, then the answer must be no,
bc people do not usually lie to themselves.
• The Advisory Committee’s Note to 801(a) says that close
cases should “be resolved in favor of admissibility.”
 Nonassertive Words
• This usually only encompasses involuntary expressions, such as
saying “ouch” when you hit your knee.
• Most oral and written expressions are manifestly assertive.
Commands also have assertive intent; Example: by saying, “Don’t
run that stopsign.”, the speaker asserts, “there is a stopsign
ahead.” Questions may be assertive; Example: by saying, “What is
your name?”, the speaker asserts, “I don’t know your name.”
 Words may be offered to prove something other than what they assert.
 Implied Assertions
• If a fried said, “Laura ought to give that dog a bath,” you would
naturally conclude Laura’s dog was dirty. That is what your friend
intended to communicate. Your friend’s statement contains the
implied assertion that the dog needs a bath. There is no reason to
distinguish sharply, in the hearsay context, between express and
implied assertions.
 Indirect Assertions
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• Example: The out-of-court statement “Alice is starting

chemotherapy,” would be hearsay if offered to prove the nature of
Alice’s treatment. The prosecutor might get around the rule by
saying that the statement is being offered to prove that Alice’s son,
who supported his mother, was financially stressed and therefore
had a motive to rob the bank. Since the statement is being offered
to prove something other than what it asserts, the prosecutor
would argue, it is not hearsay. However, the immediate fact (that
Alice was starting chemo) is a necessary link in the chain of
inferences leading to the intermediate fact (that her son was
financially stressed), which in turn leads to the ultimate fact (that
he had a motive to rob). The statement therefore is being offered
to prove what it asserts – and is hearsay.
o Unless the answer to both questions is yes, the statement is not hearsay.
II. Exceptions to the Hearsay Rule
• Note: 805 covers hearsay within hearsay
• The Fed Rules exceptions to the hearsay exclusion are organized, accordingly, in 3
categories:
o 1. Hearsay exceptions that apply without regard to whether the declarant is
available as a witness;
 These types of hearsay statements are thought to be particularly free from
the risk that the maker of the statement intended to lie. Statements of this
kind are usually admissible, whether or not the declarant is available to
testify.
o 2. Hearsay exceptions that apply only if the declarant is unavailable as a witness;
and
 These types of hearsay are thought to be particularly necessary in special
circumstances. These types of statements are usually admissible only if
the proponent shows that the declarant is unavailable.
o 3. Exemptions from the definition of hearsay for certain out-of-court statements
offered for the truth of what they assert. 801(d)(1) and 801(d)(2).
 These are out-of-ct statements offered to prove the truth of what they
assert that universally is allowed into evidence despite the hearsay rule,
even without a belief that the statement is likely to have been truthful
when made or that the statement is particularly necessary to a party’s
case. This class of statements includes admissions, which are any
statement ever made by a party in the current case if introduced against
that party, and certain statements made out of court by a person who
appears in court as a witness.
o Additionally, a residual or “catch-all” exception allows admission of statements
that are outside the coverage of the enumerated exceptions by that seem similarly
trustworthy.
III. Statements Exempted from the Federal Rules Definition of Hearsay (# 3 above)
• A. Admissions
o 801(d)(2)
o An admission is anything a party has ever communicated sought to be introduced
by the opposing party at trial
o The proponent of an out-of-court statement who seeks to take advantage of the
admission rationale is only required to show that the statement was once made
by the opposing party, and that it is relevant in the current trial.
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o Primary Rationales:
 1. It seems fair to many that people ought to be forced to live up to their
own claims, promises, and statements.
 2. When a prosecutor offers a D’s own words against her, usually it is bc
those words incriminate the D. Although people often lie to advance their
interests, people rarely lie in ways that hurt themselves. As a general
matter, then, a statement that harms the speaker’s interests is more likely
to be truthful than is ordinarily hearsay.
 3. Cross-examination. Our inability to cross-examine hearsay declarants
is a principal justification for the hearsay rule. It would seem odd, though,
for a party to complain that she can’t cross-examine the declarant when
she is the declarant.
o Five types of statements are defined as admissions by 801(d)(2):
 (A) A party’s own words, relevant at the time of trial to an issue in the
trial. (See Example on p95 in Examples and Explanations)
 (B) Adoptive admissions – a party’s reaction to a statement or action by
another person when it is reasonable to treat the party’s reaction as an
admission of something stated or implied by the other person. Silence can
be treated as an admission if most people would have spoken to contradict
something like a statement just made to the party. (See Examples on p95
in Examples and Explanations)
• Advisory Committee Notes (208): When silence is relied
upon, the theory is that the person would, under the
circumstances, protest the statement made in his presence, if
untrue. Requirements: The party against which the statement is
offered would have had to heard the statement; he could have
responded; the circumstances naturally call for a response; he
failed to respond rather than responding in a natural way
• According to the Supreme Courts’ interpretation of the Due
Process Clause and 5th Am, silence during a custodial
interrogation cannot be treated as an admission of guilt.
 (C) The statements of a person authorized to speak on behalf of someone
who becomes a party to a lawsuit are admissible as admissions when
offered against the party. A lawyer is the most common example.
 (D) A statement is an admission usable against a party if it is made by a
party’s agent or employee concerning something within the scope of
agency or employment during the time of the agency or employment. (See
Example on p96 in Examples and Explanations)
• MAHLANDT v. WILD CANDID SURVIVAL & RESEARCH
CENTER, INC.
o Holding: The notes of the Advisory Committee on the
Rules discuss the problem of “in house” admissions with
referent to 801(d)(2)(C) situations. This is not a (C)
situation bc Poos was not authorized or directed to make a
statement on the matter by anyone. Communication to an
outsider has not generally been thought to be an essential
characteristic of an admission. Thus a party’s books or
records are usable against him, without regard to any
intent to disclose to third persons. 801(d)(2)(D) adopts
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the approach which, as a general proposition, makes

statements made by agents within the scope of their
employment admissible. Once agency, and the making of
the statement while the relationship continues, are
established, the statement is exempt from the hearsay rule
so long as it relates to a matter within the scope of the
agency.
 (E) A coconspirator’s statements are considered admissions when offered
against another coconspirator so long as the statements were made during
and in furtherance of their conspiracy. (See Example on p96 of Ex and
Explanations). Note that 104(a) is also important to this rule.
• BOURJAILY v. UNITED STATES
o Holdings of this case:
o 1. The preliminary questions posed by the coconspirator
exception to the hearsay rule - such as whether a
conspiracy in fact existed at the time the out-of-court
statement was made and whether any such conspiracy
included the declarant and the D – are to be decided by the
TJ under 104(a).
o 2. The Ct declared that the TJ should resolve such
questions by a preponderance of the evidence.
o 3. The contested hearsay statement itself could be evidence
of the existence of the conspiracy and other preliminary
facts.
o 4. The ct reserved the question whether the contested
hearsay statement could be admitted if the statement is the
only evidence of such preliminary facts.
o Note that this case was decided before the FRE were
enacted. Now the last two issues of the case are
encompassed in the last sentence of 801(d)(2).
• B. Prior Statements by a Witness and Past Testimony
o 801(d)(1)
o Inconsistent Statements offered to Impeach
 There are 2 rules that do not concern hearsay at all, but are important to a
witness’s testimony:
 613 governs the impeachment of witnesses with past inconsistent
statements
• Past inconsistent statements, when offered to impeach, are not
offered for the truth of what they assert, but merely to show that
the witness says different things at different times and therefore
should not be believed. The party against whom such statements
are offered may ask the judge for a limiting instruction to the
effect.
• The problem does not arise when a witness’s past inconsistent
statement is admitted under 801(d)(1)(A). Such statements
come in substantively, and the jury may consider them for their
truth. Note that a litigant must satisfy far more stringent
conditions to admit a past inconsistent statement for its truth
under 801(d)(1)(A) than to use it merely to impeach under 613
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 612 doesn’t concern hearsay. This rule deals with the mechanics of
refreshing a witness’s memory.
 See Chart (386 of Casebook)
o There are 3 types of out-of-court statements by a witness that may fall outside the
definition of hearsay (See Chart on 99 of Examples and Explanations); 801(d)
(1):
 (A) prior inconsistent statements
• A prior inconsistent statement is any statement by a witness: (1)
made out of ct; (2) before the witness testifies; that (3) conflicts
with something the witness says in testimony; and (4) was made
under oath at a proceeding. This type of statement may be
introduced for the truth of what it asserts.
• The Rule as adopted covers statements made under a grand jury.
(Legislative History)
 (B) prior consistent statements
• A prior consistent statement is any statement by a witness made
out of court before the witness’s testimony that reinforces or
supports the testimony.
• Under the Fed Rules, a prior consistent statement does not have to
have been made under oath in a proceeding as is required for
substantive use of a prior inconsistent statement. However,
evidence that a prior consistent statement was made is permitted
to be introduced only if the proponent shows: (1) that the witness’s
testimony has been attacked as recently fabricated or influenced
by a motive to lie; and (2) that the witness made the prior
statement before the time of the alleged fabrication or before the
time that he or she was subject to the alleged motive to lie.
o Although 801(d)(1)(B) does not explicitly state that the
prior consistent statement must have been made before the
witness had a motive to falsify his or her testimony, the SCt
has interpreted it to include that requirement in TOME v.
US. Thus a statement made after the speaker had a motive
to testify falsely but before the witness testified in court
would not be eligible for the non-hearsay treatment of
801(d)(1)(B).
• See Example on p99 of Examples and Explanations
 (C) statements identifying a person
• See Example on p100 of Examples and Explanations
• COMMONWEALTH v. WEICHELL
o Holding: Since the statements of the witness that led to the
creation of the composite drawing of the suspect are
admissible, the composite which is prepared from the
statements similarly ought to be admissible either bc the
composite retains the character of the statements that led
to its creation or bc the composite is not a statement within
the meaning of the hearsay rule. [Note that the court does
not answer whether the composite sketch was a
“statement” as defined by 801(a)]
• US v. OWENS
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o 802 is not violated by admission of an identification

statement of a witness who is unable, bc of a memory loss,
to testify concerning the basis for the identification.
 For any of them to qualify for exclusion from the hearsay definition, there
must be a showing that the declarant is “available for cross-examination”
concerning the declarant’s out-of-court statement.
III. Statements Defined as Hearsay but Admissible without Regard to Declarant’s Availability
• 803 - 23 Specific categories of hearsay are admissible under the Fed Rules whether or
not the declarant is available. Additionally, there is a “catch-all” provision.
• A. Present Sense Impressions
o 803(1)
• B. Excited Utterances
o 803(2)
o If a statement about a stress-inducing event is made in response to someone’s
question, some cts may rule that it was not the product of the speaker’s stress.
o Present Sense Impression and Excited Utterance Compared
 803(1) – must “describe” something; 803(2) – must only “relate” to the
event that was startling.
 803(1) – can be made during/immediately after; 803(2) – must be
made while declarant is under the stress/excitement.
• C. Statements of Current Mental, Emotional, or Physical Condition
o 803(3)
o The mental state exception allows proof of a person’s statement of fact to show
that the person believed the fact to be true but prohibits the use of a person’s
statements of feeling to prove that a remembered fact is true.
 Thus, proof that a declarant said, “I saw Billy yesterday,” would be
inadmissible if offered to prove that the declarant did see Bill on the day
before he spoke. It would be admissible to show that at the time the
declarant said it, the declarant thought he had seen Bill on the previous
day.
o A statement of a person’s plan or intention is considered an expression of then-
existing mental state. It will be admitted as relevant on 2 issues: whether the
declarant had that plan; and whether the declarant carried out the plan. In
contrast, a statement about a past act will be hearsay if offered to prove that the
past act occurred.
o The mental state exception permits the introduction of testimony that a declarant
stated a plan to meet another person to show that the other person went to the
location where the declarant said they would meet.
 Some courts have permitted this only when there is other evidence to back
it up.
o Most survey research is intended to develop information about what people
think, not whether what they think is an accurate reflection of reality. Thus, proof
that respondents articulated particular beliefs is admissible under the mental
state exception.
o MUTUAL LIFE INSURANCE CO. v. HILLMON
 Holding: Evidence that just before March 5 Walters had the intention of
leaving Wichita with Hillmon would tend to corroborate the evidence
already admitted, and to show that he went from Wichita to Crooked
Creek with Hillmon. Letters from him to his family and his wife were the
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natural, if not the only attainable, evidence of his intention. The evidence
should have been admitted. The existence of a particular intention in a
certain person at a certain time being a material fact to be proved,
evidence that he expressed that intention at that time is as direct evidence
of the fact, as his own testimony that he then had that intention would be.
The letters in question were competent, not as narratives of facts
communicated to the writer by others, nor yet as proof that he actually
went away from Wichita, but as evidence that, shortly before the time
when other evidence tended to show that he went away, he had the
intention of going, which made it more probable that he did, than if there
had been no proof of such intention.
• Note that most authorities discredit this holding now because they
find that Hillmon and Walters would have had to have made plans
to go away together before he wrote the letters, so it wasn’t
intention since they had already met and agreed to it.
o SHEPARD v. UNITED STATES
 Holding: (Discussing the statement “Dr Shepard has poisoned
me.”)Declarations of intention, casting light upon the future, have been
sharply distinguished from declarations of memory, pointing backwards
to the past. There would be an end, or nearly that, to the rule against
hearsay if the distinction were ignored. The testimony now questioned
faced backward and not forward. This at least it did in its most obvious
implications. What is even more important, it spoke to a past act, and
more than that, to an act by someone not the speaker.
• D. Statements for Medical Diagnosis or Treatment
o 803(4)
o This exception does not require that the statements be made by the person who
needs medical help, and it does not require statements to be made to a doctor.
o UNITED STATES v. IRON SHELL
 Holding: 803(4) admits 3 types of statements: (1) medical history, (2)
past or present sensations, and (3) inception or general cause of the
disease or injury. All three types are admissible where they are
“reasonably pertinent to diagnosis or treatment.” Lucy’s statements fall
primarily into the 3rd category. The key question is whether theses
statement were reasonably pertinent to diagnosis/treatment. The
rationale behind the rule has often been stated. It focuses upon the
patient and relies upon the patients’ strong motive to tell the truth bc
diagnosis or treatment will depend in part upon what the patient says.
Thus, 2 independent rationales support the rule and are helpful in its
application. A 2 part test flows naturally from this dual rationale: first, is
the declarant’s motive consistent with the purpose of the rule; and second,
is it reasonable for the physician to rely on the info in
diagnosis/treatment. We find no facts in the record to indicate that Lucy’s
motive in making these statements was other than as a patient seeking
treatment. Also, there is nothing in the content of the statements to
suggest that Lucy was responding to the doctor’s questions for any reason
other than promoting treatment. All of her statements were within the
scope of the rule bc they were related to her physical condition and were
consistent with a motive to promote treatment.
• E. Past Recollection Recorded
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o 803(5) and 612

o The person first has to demonstrate a loss of memory or bad recollection. If a
writing is used to refresh the memory, then 612 has to be used.
o If you can’t get the person to remember, you may can get the writing in by itself if
the person says that they remember saying it or writing it down and it was true,
they just don’t remember what it says. In 803(5) the declarant has to take the
stand, otherwise his memory cannot be refreshed.
o It is imperative that the proponent try to refresh the memory first before
admitting the statement into evidence.
o The proponent of the document (or other type of record) must show that the
witness once had knowledge about the subject, that the witness does not have
adequate recollection of the subject to testify “fully and accurately,” and that the
witness made the record (or adopted a record) when the witness had a fresh
memory of the info.
 The record will be read to the jury, but it will not be treated as an exhibit.
o JOHNSON v. STATE
 Requirements for Past recollection recorded in 803(5): 803(5) requires
that 4 elements be met:
• (1) the witness must have had firsthand knowledge of the event,
• (2) the written statement must be a memorandum made at or
near the time of the event while the witness had a clear and
accurate memory of it,
• (3) the witness must lack a present recollection of the event, and
• (4) the witness must vouch for the accuracy of the written
memorandum.
• In particular, to meet the fourth element, the witness may testify
that she presently remembers recording the fact correctly or
remembers recognizing the writing as accurate when she read it at
an earlier time. At the extreme, it is even sufficient if the
individual testifies to recognizing her signature on the statement
and believes the statement is correct bc she would not have signed
it if she had not believed it true at the time. However, the witness
must acknowledge at trial the accuracy of the statement. An
assertion of the statement’s accuracy in the acknowledgement line
of a written memorandum or such an acknowledgment made
previously under oath will not be sufficient.
o Past Recollection Recorded vs. Past Recollection Refreshed
 Past Recollection Refreshed has no connection with hearsay. A party
questioning the witness is permitted to try to stimulate the witness’s
memory in a wide variety of ways. If showing a witness a document
revives the witness’s memory, there si no hearsay issue bc the document
(which is a written out-of-court statement) is not introduced into
evidence. If showing the witness the statement doesn’t enable the witness
to say truthfully that his or her memory about some relevant subject has
been refreshed, then the witness will not be able to testify about that
subject.
 The party against whom the “refreshed memory” witness has testified is
entitled to introduce the doc the witness used, subject to 612 safeguards.
• F. Business Records
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o 803(6), 803(7)
o To qualify a doc for treatment under 803(6), the proponent must show that it
was made as part of the usual activities of the org, that a person with knowledge
of what the records says made the record or reported the info to the person who
made the record, and that the record was made near the time of the occurence of
what it describes. A witness must testify about how the record meets these
requirements. A record may still be hearsay if the circumstances of its
preparation indicate a lack of trustworthiness or if the source of the info similarly
seems unreliable.
o Business records often involve multiple hearsay or hearsay within hearsay and
have to satisfy 805
o Lack of an entry in a business record is admissible evidence, if relevant, of
something’s nonoccurrence or nonexistence if its occurrence or existence would
normally have been recorded. 803(7)
o Usually, you don’t need the business record exception for documents of a party (if
offered against him) because that would come in as an admission.
o PALMER v. HOFFMAN
 Holding: An accident report is not typical of entries made systematically
in business. The probability of trustworthiness of records because they
were routine reflections of the day to day operations of a business would
be forgotten as the basis of the rule. In short, the reports are not for the
systematic conduct of the enterprise as a railroad business. Unlike
payrolls, accounts receivable, accounts payable, bills of lading and the
like, these reports are calculated for use essentially in the court, not in the
business. Their primary utility is in litigating, not in railroading
o UNITED STATES v. VIGNEAU
 Holding: 803(6) does not embrace statements contained within a
business record that were made by one who is not a part of the business if
the embraced statements are offered for their truth. Some cases have
admitted under the business records exception “outsider” statements
contained in business records, like the sender’s name on the WU form,
where there is evidence that the business itself used a procedure for
verifying identity. We thus conclude that the sender name, address and
phone number on the forms should not have been admitted for their truth
(since there was no other verification).
• G. Public Records and Reports
o 803(8), 803(10).
o 803(8) deals with public records and reports. It describes 3 types of reports and
varies the power of the hearsay exception according to whether they are sought to
be introduced in a civil or criminal case, and according to which party seeks to
introduce them.
 The rule’s categories are reports about: the activities of the govt entity;
matters observed an reported under legal duty by police and law
enforcement personnel; matters observed and reported under legal duty
by public employees other than police and law enforcement personnel;
and factual findings resulting from legally authorized investigations.
 In criminal trials, the D, but not the prosecution, may introduce findings
from official investigations.
 Like in business records, 803(10) covers proof that a govt report does
not say something.
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 See Chart 14 (p117)

 But what if the report in question satisfies the criteria of the business
records exception, Rule 803(6)? Should courts admit the report against
criminal Ds under that rule?
• UNITED STATES v. OATES
o Facts: A chemist made a report in a drug case.
o Our conclusion that the chemist’s report and worksheet do
not satisfy the standards of 803(8) components perfectly
with what we discern to be clear legislative intent not only
to exclude such documents from the scope of 803(8) but
from the scope of 803(6) as well.
o We thus think it manifest that it was the clear intention of
Congress to make law enforcement reports absolutely
inadmissible against Ds in criminal case.
• UNITED STATES v. HAYES
o Facts: An IRS tax examiner was the custodian of the
records and she testified that they were kept in the
ordinary and regular course of business. They show that D
failed to file a return for the 1981 tax year. The TCT
admitted the computer data evidence under 803(6). The
question is whether it should have been excluded under
the rationale of UNITED STATES v. OATS
o Holding: The exclusionary provision of 803(8)(B) was
only intended to apply to observations made by law
enforcement officials at the scene of a crime or in
investigating a crime, and not to reports of routine matters
made in nonadversarial settings. 803(8)(C) does not
compel the exclusion of documents properly admitted
under 803(6) where the authoring officer or investigator
testifies. This is because such testimony protects against
the loss of an accused’s confrontation rights, the
underlying rationale for 803(8) and the basis of the
court’s concern in OATES. Here, Vest testified and was
cross examined at some length, and there was no loss of
confrontation rights.
o BEECH AIRCRAFT CORP v. RAINEY
 Holding: We hold, therefore, that portions of investigatory reports
otherwise admissible under 803(8)(C) are not inadmissible merely bc
they state a conclusion or opinion. As long as the conclusion is based on a
factual investigation and satisfies the Rule’s trustworthiness requirement,
it should be admissible along with other portions of the report. As the trial
judge in this action determined that certain of the JAG Report’s
conclusions were trustworthy, he rightly allowed them to be admitted into
evidence.
• H. Other Exceptions
o 803(9)- 803(23)  these are mostly specific instances of Business Reports or
Public Records
IV. Statements Defined as Hearsay but Admissible if the Declarant is “Unavailable”
• A. Former Testimony
o 804(a) and 804(b)(1)
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o Any deposition that you take can end up being something used in trial.
o In civil and crim cases, testimony at an earlier proceeding or deposition is
admissible to prove the truth of what its statements assert if the party against
whom the testimony is offered had an opportunity to cross-examine the
declarant. It is also admissible if that party’s motive to cross-examine at the
earlier proceeding was similar to the motive the party would have if the witness
testified at the current trial. For civil cases there is an additional liberalization:
The requirement of opportunity and motive to cross-examine can be satisfied by
the presence in the earlier proceeding of a predecessor in interest to the party
against whom the testimony is offered in the current trial.
o UNITED STATES v. DINAPOLI
 Holding: The proper approach, therefore, in assessing similarity of
motive under 804(b)(1) must consider whether the party resisting the
offered testimony at a pending proceeding had at a prior proceeding an
interest of substantially similar intensity to prove (or disprove) the same
side of a substantially similar issue. The nature of the 2 proceedings –
both what is at stake and the applicable burden of proof – and, to a lesser
extent, the cross-examination at the prior proceeding – both what was
undertaken and what was available but forgone – will be relevant though
not conclusive on the ultimate issue of similarity of motive. Here, it can be
shown beyond reasonable dispute that the prosecutor had no interest at
the grand jury in proving the falsity of the witnesses’ assertion that the
“Club” did not exist (see why on p 427). Therefore, the “similar motive”
requirement of 804(b)(1) was not met and the witnesses’ grand jury
testimony, offered by Ds, was therefore properly excluded.
o LLOYD v. AMERICAN EXPORT LINES
 Holding: If it appears that in the former suit a party having a like motive
to cross-examine about the same matters as the present party would have,
was accorded an adequate opportunity for such examination, the
testimony may be received against the present party. Under these
circumstances, the previous party having like motive to develop the
testimony about the same material facts is, in the final analysis, a
predecessor in interest to the present party.
• B. Dying Declarations
o 804(b)(2)
o Notice that the declarant doesn’t actually have to had died, but still has to be
unavailable.
o SHEPARD v. UNITED STATES
 Holding: To make out a dying declaration the declarant must have spoken
without hope of recovery and in the shadow of impending death. The
record furnishes no proof of that indispensable condition. The declarant’s
illness began on May 20. She was found in a state of collapse, delirious, in
pain, the pupils of her eyes dilated, and the retina suffused with blood.
The conversation with the nurse occurred 2 days later. At that time her
mind had cleared up, and her speech was rational and orderly. There was
as yet no thought by any of her physicians that she was dangerously ill.
Nothing in the condition of the patient on May 22 gives fair support to the
conclusion that hope had then been lost. Fear or even belief that illness
will end in death will not avail of itself to make a dying declaration. There
must be “a settled hopeless expectation” that death is near at hand, and
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what is said must have been spoken in the hush of its impending
presence. What is decisive is the state of mind. Even so, the state of mind
must be exhibited in the evidence, and not left to conjecture. The patient
must have spoken with the consciousness of a swift and certain doom.
o 806 opens the credibility of declarants and live witnesses, like party admissions
and the declarant in SHEPARD, to attack. The rule permits litigants to attack a
hearsay declarant’s credibility by any of the techniques available against live
witnesses. By its terms 806 extends to statements of spokespersons, agents, and
coconspirators under 801(d)(2)(C), (D), or (E). And it applies to hearsay
admitted under 803 or 804. Only when a party’s own statement or adoption
comes in against her under 801(d)(2)(A) or (B) and when a live witness’s past
words are admitted under 801(d)(1) is there no provision for an attack on the
declarant’s credibility.
• C. Statements Against Interest
o 804(b)(3)
o Affected interest must be monetary or proprietary rights and freedom from
criminal liability; don’t include social rights.
o The declarant need not be a party nor does it matter in whose favor the statement
is sought to be introduced. The proponent must show that the declarant is
unavailable and must show also that when the declarant made the statement, it
had the potential to harm an important interest of the declarant.
o In applying this exception, a judge must consider what a statement would
typically mean to a “reasonable” person, in terms of having an effect on that
person’s monetary, property, or criminal liability interests.
o When a statement against penal interest is offered to exculpate an accused,
804(b)(3) provides that the statement may be admitted only if corroborating
circumstances clearly indicate that the statement is trustworthy. That limitation
has no application to statements introduced by the prosecution in a criminal case
or by any party in a civil case.
 WILLIAMSON v. UNITED STATES
• Holding: Non-self-inculpatory portions of a declarant’s
statement, even if combined with self-inculpatory portions, cannot
be admitted under the statements against interest rationale
• D. Statement by Person Rendered Unavailable: Forfeiture by Wrongdoing
o 804(b)(6)
o A party forfeits the right to exclude a hearsay statement if the party was involved
in an act that wrongfully kept the declarant from being a witness at trial.
o 250 (note by the Advisory Committee)
o It is important to relate this exception to the last sentence of 804(a). Difference?
 804(a): Employer takes deposition of own employee and then transfers
him oversees and that he will be fired if he voluntarily returns to testify,
and then tries to use 804(b)(1). Can’t do this because of 804(a)
 804(b)(6): ? Employee is threatened into refusing to testify
o Burden of Proof: the party seeking to use the out of court statement has to prove
by a preponderance of the evidence that the other party has done the
wrongdoing.
V. Residual Exception
• 807
19
• The residual exception may be invoked regardless of the availability or unavailability of

the declarant.
• DALLAS COUNTY CASE
• UNITED STATES v. LASTER
o Holding: The DCt did not err in admitting the purchase orders and other related
docs under 807 as there was no indication that the records were not reliable.
This rule finds an equally trustworthy statement not specifically covered by 803
or 804 admissible if it is material, more probative on the point for which it is
offered than any other evidence which the proponent can procure through
reasonable efforts, and its admission best serves the interests of justice. If a
statement is admissible under one of the traditional hearsay exceptions, that
exception should be relied on instead of the residual exception. However, the
analysis of a hearsay statement should not end when a statement fails to qualify
under a traditional hearsay exception, but should be evaluated under the residual
hearsay exception.
Chapter 3 – Character Evidence

Rules: 403, 404, 607, 608, and 609
I. The Character-Propensity Rule

• PEOPLE v. ZACKOWITZ
o Holding: The endeavor of introducing the evidence here was to generate an
atmosphere of professional criminality. It was an endeavor the more unfair in
that, apart from the suspicion attaching to the possession of these weapons, there
is nothing to mark the D as a man of evil life. He was not in crime as a business.
The judgment of conviction should be reversed.
• A. The Propensity Box
o Evidence that a person has a particular character trait generally is not admissible
to show that the person acted in conformity with that trait at a particular time.
 In ZACKOWITZ, the prosecutor’s aim was exactly the purpose the rule
forbids: the state was trying to show that the D had a propensity to act in a
particular way in order to prove that he acted in that way on the night of
the shooting.
 Problem = this evidence can cause unfair prejudice, which can take 2
forms:
• 1. The risk that the jury will give excessive weight to the vicious
record of crime thus exhibited, and allow it to bear too strongly on
the present charge. The danger of giving too much weight to
evidence of character is especially great bc litigants sometimes
seek to prove a person’s character with evidence of specific acts of
the person.
• 2. The jury may take proof of character as justifying condemnation
irrespective of guilt of the present charge. For example, the jury
might punish the person against whom character evidence is
brought simply for being a man of bad character, or the jury might
punish that person for having done the specific act (which the
other side wants to use to prove bad character) on the theory that
his offense deserves punishment even if he is not guilty of the
crime charged.
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 Other dangers = the specific acts often used to prove character could
distract or confuse the jury.
o When conducting a weighing test under 403, a TJ normally must weigh the risk
of all of these harms – unfair prejudice, juror confusion, and waste of time –
against the probative value of the evidence. In a sense, 404 reflects the judgment
of Congress that the probative value of propensity evidence is, as a matter of law,
substantially outweighed by the risk it poses of unfair prejudice, juror confusion,
and waste of time.
o See 133 for diagramming the propensity box. In general, a litigant may not lead
the jury on a chain of inferences that goes through the propensity box.
• B. Routes Around the Propensity Box
o Instead of going through the propensity box, a litigant may find ways to go
around the propensity box. 404 would not forbid this alternate use of the
evidence.
 This is not to say that the judge necessarily should admit evidence. There
is still the risk that the jury would use the evidence as something other
than proof he was at the crime scene. For example, the jury could hear
that Zackowitz owned several guns and conclude on its own that he is a
man of vicious propensities who acted in conformity therewith in shooting
Coppola (See Diagram on 135)
• In such situations, 105 directs the TJ, at the D’s request, to deliver
a limiting instruction to the jury. The judge’s instruction should
explain in clear terms the permitted, around-the-box purpose for
which the evidence of other acts is being admitted. If the D wishes,
the judge should spell out as well the forbidden, through-the-box
purpose to make clear to the jurors how they are not supposed to
use the evidence (Example of Instruction on page 135).
o Such an instruction cannot always ensure that the jury will
not use evidence of other acts in the forbidden way. The
Advisory Committee’s Note to 403 says that one of
the factors a judge should consider when weighing the risk
of unfair prejudice is “the probable effectiveness or lack of
effectiveness of a limiting instruction” (RB 47). If the judge
believes the jury will not abide by the limiting instruction,
she may choose to exclude the evidence under 403.
• C. 404(b)
o 404(b) specifically recognizes several permissible routes around the propensity
box.
o Sources of confusion from this rule:
 1. The phrase “other crimes, wrongs, or acts” refers to any acts other than
those directly at issue in the case, and it could have taken place either
before or after the crime charged.
 2. The statement that such evidence “is not admissible to prove the
character of a person in order to show action in conformity therewith” is
superfluous. This provision merely restates the substance of 404(a).
Also, the list of possible “other purposes” presented in the rule is
unnecessary; 404(b)’s list of possible “other purposes” is merely
illustrative but not exhaustive.
 3. 404(b) does not require trial judges to admit evidence of other acts
whenever such evidence does not violate the propensity evidence ban. The
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rule says “may”. The admission of such evidence remains within the
court’s discretion. Typically, judges will evaluate the evidence under 403
and exclude if its probative value is substantially outweighed by the risk of
unfair prejudice, confusion of the issues, or undue delay.
 4. The permitted purposes listed by 404(b) are not “exceptions” to
404(a). They are merely possible uses of other-acts evidence not banned
by 404(a).
• Genuine exceptions to 404(a) are:
o 404(a)(1)
o 404(a)(2)
o 404(a)(3), as elaborated by 607, 608, and 609
o 413
o 414
o 415
• Sometimes the error of calling these other purposes “exceptions”
to the propensity evidence ban can lead a court to the wrong
result. (See illustration on 138 of Case Book)
• Evidence of other acts, even when offered to prove identity, is not
admissible if the chain of inferences leads through the propensity
box. 404(b) simply doesn’t grant litigants permission to invite the
jury through the propensity box.
• See DIAGRAM of CHARACTER EVIDENCE (140)
II. Routes Around the Propensity Box
• Remember that 404 bars only one thing – the forbidden inference of action on a
particular occasion in conformity with a character trait.
• 404(b)’s list of permitted routes around the box is not exhaustive:
o 1. Proof of Knowledge
o 2. Proof of Motive
o 3. Proof of Identity
 One way to prove guilt when identity is in dispute is to show that the
crime matches the D’s Modus Operandi (M.O.). If we know that the D
committed a particular crime in the past, and the present offense matches
that crime in idiosyncratic wasy, then we may infer the D committed the
present offense as well. The permitted inference is not that this is the D’s
kind of crime, but that this could not be anyone else’s crime. For this
route around the propensity box to be legitimate, the similarities btn the
2 crimes must be so distinctive that the inference that nobody else could
have committed the crime overcomes the jury’s temptation to engage in
propensity reasoning pure and simple.
• UNITED STATES v. TRENKLER
o I. Other Act Evidence: In the First Circuit, we have
adopted a 2-part test for determining the admissibility of
404(b) evidence. (1) The DCt must determine whether
the evidence has some special relevance independent of its
tendency simply to show criminal propensity. (2) If the
evidence has special relevance on a material issue, the ct
must then carefully conduct a 403 analysis to determine if
the probative value of the evidence is not substantially
outweighed by the danger of unfair prejudice.
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o II. Identity: a. 404(b) Evidence: Special Relevance:

When, as in this case, 404(b) evidence is offered bc it has
special relevance on the issue of identity, we have
required, as a prerequisite to admission, a showing that
there exists a high degree of similarity btn the other act
and the charged crime. Indeed, the proponent must
demonstrate the 2 acts exhibit a commonality of
distinguishing features sufficient to earmark them as the
handiwork of the same individual. The question for the ct,
therefore, must be whether the characteristics relied upon
are sufficiently idiosyncratic to permit an inference of
pattern for purposes of proof. However, in resolving
whether the evidence supports an inference that the 2
incidents are sufficiently idiosyncratic, we have cautioned
that an exact match is not necessary. The test must focus
on the totality of the comparison, demanding not a
facsimile or exact replica but rather the conjunction of
several identifying characteristics or the presence of some
highly distinctive quality.
o b. 404(b) Evidence: Probative Value and Unfair
Prejudice: Resolving that the DCt didn’t abuse its
discretion in finding that the Quincy bomb had special
relevance on the issue of identity does not end the
analysis. We must also review the TCt’s determination that
the probative value of the evidence was not substantially
outweighed by the risk of unfair prejudice. Several factors
weigh hevily in this balancing, such as the govt’s need for
the evidence, the strength of evidence establishing the
similarity of the 2 acts, the inflammatory nature of the
evidence, and the degree to which it would promote an
inference based solely on the D’s criminal propensity.
Here, the DCt acted within its discretion.
• US v. STEVENS
• US v. DEGEORGE
o 4. Narrative Integrity (Res Gestae)
o 5. Absence of Accident
o 6. Doctrine of Chances
 REX v. SMITH
• At trial, both judge and prosecutor suggested a number of around-
the-box theories that might – or might not – have justified Justice
Scrutton’s decision to admit evidence of Burnham’s and Lofty’s
deaths. Scutton instructed the jury at the outset that the evidence
was admissible to help the jury to draw an inference as to whether
the death of Mundy was accidental or designed by the prison (ie,
proof of absence of mistake or accident); He also advised the
jurors that they could use the evidence of Burnham’s and Lofty’s
deaths when considering whether the D had a system of
murdering women he married in order to get their money (ie,
proof of motive or plan); finally, the jury could draw from that
series of fortunate accidents the inference of design. The matter
23
depended on the unusualness of the occurrence and the number

of times it was repeated. Scrutton’s insight – the sheer
improbability that Smith’s 3 wives could all die in their tubs
without foul play – has become known as the doctrine of chances,
recognized in some quarters as an around-the-box use of other-
acts evidence.
 See 2 articles on Doctrine of Chances
III. The HUDDLESTON Standard
• HUDDLESTON v. UNITED STATES
o Question: Whether the TCt must make a preliminary finding before “similar act”
and other 404(b) evidence is submitted to the jury. – No, such evidence should
be admitted if there is sufficient evidence to support a finding by the jury that D
committed the similar act.
o Holding: 404(b) protects against the introduction of extrinsic act evidence when
that evidence is offered solely to prove character. The text contains no intimation,
however, that any preliminary showing is necessary before such evidence may be
introduced for a proper purpose. If offered for such a purpose, the evidence is
subject only to general strictures limiting admissibility such as 402 and 403.
Advisory Committee’s Notes on 404(b) indicates that the tct should asses
such evidence under the usual rules for admissibility: “the determination must be
made whether the danger of undue prejudice outweights the probative value of
the evidence in view of the availability of other means of proof and other factors
appropriate for making decisions of this kind under 403…We conclude that a
preliminary finding by the ct that the Govt has proved the act by a preponderance
of the evidence is not called for by 104(a). But, evidence is admissible under
404(b) only if it is relevant; in this context, similar act evidence is relevant only
if the jury can reasonable conclude that the act occurred and that the D was the
actor. Such questions of relevance conditioned on a fact are dealt with under
104(b), in which the ct simply examines all the evidence in the case and decides
whether the jury could reasonably find the conditional fact – here, that the tvs
were stolen – by a preponderance of the evidence.
IV. Proof of The Defendant’s and the Victim’s Character
• 404(a) and 405
• MICHELSON v. UNITED STATES (pre-rules case)
o A D may introduce affirmative testimony that the general estimate of his
character is so favorable that the jury may infer that he would not be likely to
commit the offense charged. When D elects to initiate a character inquiry, not
only is he permitted to call witnesses to testify from hearsay, but indeed such a
witness is not allowed to base his testimony on anything but hearsay. The witness
may not testify about D’s specific acts or courses of conduct or his possession of a
particular disposition or of benign mental and moral traits; no can he testify that
his own acquaintance, observation, and knowledge of D leads to his own
independent opinion that D possesses a good general or specific character,
inconsistent with commission of acts charged. [405 modified this aspect of
evidence law by permitting character witnesses to testify about their opinion of
the D’s character as well as about D’s reputation]. The witness is, however,
allowed to summarize what he has heard in the community. However, the witness
must qualify to give an opinion by showing such acquaintance with the D, the
community in which he has lived and the circles in which he has moved. But, the
price a D must pay for attempting to prove his good name is to throw open the
24
entire subject which the law has kept closed for his benefit and to make himself
vulnerable where the law otherwise shields him. The prosecution may pursue the
inquiry with contradictory witnesses to show that damaging rumors, whether or
not well-grounded, were afloat…Since the whole inquiry is calculated to ascertain
the general talk of people about D, rather than the witness’ own knowledge of
him, the form of inquiry, “Have you heard?” has general approval, and “Do you
know?” is not allowed. Only a conviction may be inquired about to undermine the
trustworthiness of the witness. It is not only by comparison with the crime on
trial but by comparison with the reputation asserted that a ct may judge whether
the prior arrest should be made subject of inquiry. By this test, the inquiry was
permissible. It was proper cross-examination bc reports of his arrest for receiving
stolen goods, if admitted, would tend to weaken the assertion that he was known
as an honest, and law-abiding citizen. The cross-examination may take in as
much ground as the testimony it is designed to verify.
• A. The Common Law and the Federal Rules Compared
o 404(a)(1), 404(a)(2), and 405(a) generally perpetuate the traditional
common law principles you see at work in MICHELSON.
o These rules diverge from the Cl in only 2 significant ways:
 1. 405(a) provides that whenever proof of character is allowed under
either 404(a)(1) or 404(a)(2), that proof may take the form of either
reputation or opinion evidence. The CL permitted proof only by rep.
 2. 404(a)(1) provides that if D offers evidence of an alleged victim’s
character under 404(a)(2), then the prosecution may offer evidence that
the D shares this same trait of character, even if the D has not put his own
character in issue. There was no corresponding principle at CL.
• B. Proving Character Under 404(a)(1) and 404(a)(2)
o 404(a)(1) permits criminal Ds to offer proof of pertinent traits of their own
character.
o 404(a)(2) permits criminal Ds to offer proof of pertinent traits of the alleged
victim’s character.
 Ds most often deploy 404(a)(2) when pleading self-defense against a
charge of violence. D typically aims to prove that the victim is a violent
person who, acting in conformity with this violent propensity, was the
first aggressor in the encounter with the D. Both 404(a)(1) and 404(a)
(2) specifically permit the D to lead the jury through the propensity box.
o Both rules give the D the sole option to open the character inquiry.
 The only exception to this rule is a narrow one: In homicide cases 404(a)
(2) permits the prosecution to offer evidence of the victim’s peaceable
character if the D has offered evidence (even non-character evidence) that
the victim was the first aggressor.
o Both rules, by their terms, give only criminal Ds the option to open the character
inquiry. The rule rejects granting the privilege to civil litigants (ACT to 404(a);
RB 50-51).
o Both rules permit Ds to prove only pertinent traits of character.
o Whether the D offers evidence of her own character under 404(a)(1) or of the
alleged victim’s character under 404(a)(2), the manner of proof is controlled by
405(a).
25
 405(a) permits the character witness to testify in the form of opinion or

reputation only. The rule preserves the CL bar against proving character
by evidence of specific acts.
• 405(a) does, however, permit inquiry into relevant specific
instances of conduct on cross-examination of the character
witness. But cross-examination about specific acts is not a means
of proving or disproving that the D (or victim) actually has the
character trait in question. Rather, the litigant may ask about
specific acts only to test the character witness’s knowledge of the
D’s reputation (if the witness has offered reputation evidence) or
her familiarity with the D (if she has offered opinion evidence)
o The judge will most likely limit how the jury will use these
inquiries.
 The risk of the jury using this evidence to show that
the person actually did the act in question and
therefore has a propensity for that act is one species
of unfair prejudice and might be considered by the
ct when conducting a 403 weighing test.
• C. Distinguishing Proof of Character Under 413-415
o 405(a)’s requirement that proof be by reputation or opinion doesn’t apply to
413 – 415. These rules in fact require proof by specific acts.
• D. Distinguishing Proof of Character Under 405(b)
o 405(b) causes much confusion, mostly from what is considered “an essential
element of a charge, claim, or defense.”
o One case in which 405(b) does not apply is in self-defense. Ds charged with
violent crimes often claim that the alleged victim was the first aggressor and that
the D therefore acted in self-defense. To persuade the jury that the victim
attacked first, a D often offers evidence of the victim’s violent character.
However, the essential element here is that the D have been reasonably in fear –
and not that the victim have been a violent person. Acting in self-defense simply
isn’t defined as “attacking someone of violent character.” It may help, but is not
necessary. (see 220)
o 405(b) does apply when the existence of the character trait – and not any
conduct done in conformity with that triat – is the thing to be proved. The 3 most
common examples are:
 1. Rebutting an Entrapment Defense (see 220)
 2. Rebutting a Defense of Truth in a Libel or Slander action (see 220)
 3. Resolving a Parental Custody Dispute (see 221)
 These 3 situations have 1 fact in common: the litigant’s aim is to prove
the existence of the character trait, not to prove any action done in
conformity with that trait. This never leads the jury through the
“propensity box.”
V. Proof of Defendant’s and Victim’s Character in Civil Cases
• PERRIN v. ANDERSON
o Holding: Although the literal language of the exceptions to 404(a) applies only
to criminal cases, we agree with the DCt here that, when the central issue
involved in a civil case is in nature criminal, the D may invoke the exceptions to
404(a). Accordingly, Ds were entitled to present evidence of Perrin’s character
from which the jury could infer that Perrin was the aggressor. The self-defense
26
claim raised in this case is not functionally different from a self-defense claim
raised in a criminal case. However, the DCt should not have permitted testimony
about prior specific incidents.
• SECURITIES AND EXCHANGE COMMISSION v. TOWERS FINANCIAL CORP.
o Holding: There are a small number of cases from outside the 2nd Circuit that
allow the 404(a)(1) exception to apply in civil cases. But, whatever the validity
of allowing evidence of the victim’s character under 404(a)(2) in a wrongful
death claim, the Court is not convinced that PERRIN should extend to admission
of evidence concerning the D’s character under 404(a)(1) in a civil securities
fraud suit.
• The rule-writers clearly intended that only criminal Ds should have the option to offer
character evidence under 404(a)(1) and 404(a)(2). Why?
o 1. Permission to offer character evidence about Ds and their alleged victims was a
special dispensation to criminal Ds whose life or liberty were at hazard.
o 2. All parties agree that character evidence typically has little probative power. It
is therefore of little use to a litigant who bears a substantial burden of proof. But
criminal Ds bear the slightest burden of any litigant.
o 3. Character evidence about an accused creates an asymmetrical risk of unfair
prejudice. A prosecutor’s evidence about the accused’s bad character could
prompt the jury, even if unconvinced of the D’s guilt in the present case, to
punish the D for his past bad acts or for his general bad character. When the
accused offers evidence of his good character, however, there is little risk of
unfair prejudice to the govt.
VI. Evidence of Habit
• 406
• HALLORAN v. VIRGINIA CHEMICALS INC
o Because one who has demonstrated a consistent response under given
circumstances is more likely to repeat that response when the circumstances
arise again, evidence of habit has, since the days of the CL reports, generally been
admissible to prove conformity on specified occasions…At least in this kind of
case, where the issue involves proof of a deliberate and repetitive practice, a party
should be able, by introducing evidence of such habit or regular usage, to allow
the inference of its persistence, and hence negligence on a particular occasion.
o To justify introduction of a habit or regular use, a party must be able to show on
voir dire, to the satisfaction of the TJ, that he expects to prove a sufficient
number of instances of the conduct in question (see FRE 406). Here, if D’s
witness was prepared to testify to seeing P using an immersion coil on only one
occasion, exclusion was proper. If on the other hand, P was seen a sufficient
number of times, and it is preferable that D be able to fix, at least generally, the
times and places of such occurrences, a finding of habit or regular usage would be
warranted and the evidence admissible for the jury’s consideration.
• Evidence of past conduct generally vs. Evidence of a habit
o Evidence of habit or regular usage, if properly defined and therefore
circumscribed, involves more than unpatterned occasional conduct, that is,
conduct however frequent yet likely to vary from time to time depending upon
the surrounding circumstances; it involves a repetitive pattern of conduct and
therefore predictable and predictive conduct…the keyword is predictive.
• What is habit?
o Habit = invariable regularity (ACN to 406, RB 60). Our most invariable actions
are those we do automatically and almost without volition. Few of us think about
27
putting on a seatbelt, yet many of us do so every single time we drive. Lack of

volition is therefore one sign that behavior qualifies as a habit. But the true
touchstone of habitual behavior is regularity and hence predictability.
o Can a person be habitually violent?
 ACN to 406 (RB 59) says that “evidence of other assaults is inadmissible
to prove the instant one. Although it is easy to think of people who
commit repeated violent acts, it is far harder to identify someone who
(almost) always, in a frequently recurring set of circumstances, lashes out.
o Is regular drinking a habit?
 ACN to 406 (RB 59) suggests that regular drinking does not qualify as a
habit. But, Cts occasionally admit evidence of habitual drinking, especially
when the drinking in question is precisely defined.
• Because proof of habit doesn’t involve drawing inferences from general “traits of
character,” it falls outside 404(a)’s bar against evidence of character offered to show
action in conformity therewith. 406 therefore permits proof by evidence of specific acts.
CHAPTER 4 – CHARACTER FOR TRUTHFULNESS

Rules: 404(a)(3), 405, 607, 608, 609 413, 414, 415
I. Character and Credibility: Study Guide

• Evidence of a person’s character, if offered to prove action in conformity therewithin, is
generally barred. There are 6 exceptions to this general rule of exclusion:
o 1. 413 – Similar offenses in a sexual assault prosecution
o 2. 414 – Similar offenses in a child molestation prosecution
o 3. 415 – Similar offenses in a civil action concerning sexual assault or child
molestation
o 4. 404(a)(1) – Character of accused
o 5. 404(a)(2) – Character of victim
o 6. 404(a)(3) – Character of witness
• 404(a)(3)
o Proof of the character of a witness may be admitted as provided in 607, 608 and
609
 In general these rules say that once a witness has offered testimony, the
opposing lawyer may use character evidence to attack the witness’s
credibility. The witness’s sponsor may then use character evidence to
support her credibility.
 608 and 609 constrain when and how a party may offer evidence about
a witness’s character for truthfulness.
• But these rules also offer more liberal proof of character of the
witness than the rules governing evidence of the character of the
accused (404(a)(1)) and the victim (404(a)(2))
o 1. The latter rules apply by their terms only in criminal
cases, whereas the rules governing evidence of the
character of a witness apply in both criminal and civil
cases.
o 2. The latter rules permit only the criminal D to initiate the
use of character evidence; 608 and 609 permit either
party to initiate an attack on a witness’s character for
truthfulness.
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o In addition, all character evidence, to be relevant, must bear on a “pertinent trait

of character.” (404(a)(1) and 404(a)(2)). A person charged with a crime of
violence, for example, may offer evidence of her character for peaceableness
under 404(a)(1). That same evidence, offered in an embezzlement case, would
be excluded bc the D’s peaceableness would no longer be pertinent.
• Impeachment Evidence
o See Flowchart on 247 of Case Book
• Non-Character Modes of Impeachment
o Most attacks on a witness’s credibility are not attacks on the witness’s character
for truthfulness. Rather, most attacks on credibility suggest merely that this
testimony is a lie. Attacks on the truth of specific testimony most often take one
of 3 forms: evidence of the witness’s bias; contradiction in the form of a past
inconsistent statement made by the witness; or contradiction in the form of
other evidence, such as physical evidence, the testimony of another witness, or
the common experiences of life, which may expose the testimony as implausible.
o Can an attack on the truthfulness of a witness’s testimony in this proceeding ever
constitute an attack on the witness’s general character for truthfulness?
 CAN to 608(a) says that “evidence of bias or interest does not” qualify
as an attack on the witness’s character for truthfulness under 608(a)(2)
(RB 125); but this kind of evidence may call in questions of the witness’s
general character of truthfulness, but it depends on the circumstances.
 In general, if the contradicted testimony can be explained as a mistake of
memory, perception, or narration, and might not be a lie at all, then the
contradiction certainly would not qualify as an attack on character for
truthfulness.
• 607 – permits either party to attack a witness’s credibility, including the aprty that
sponsored the witness.
• 608(a) – permits either party to offer evidence of the witness’s “character for
truthfulness or untruthfulness” in the form of opinion or reputation.
o 2 limiting principles:
 1. Evidence must pertain to character for “truthfulness or
untruthfulness.”
 2. A witness’s character for truthfulness may be supported only after it
has been attacked.
• 608(b) – permits a party to ask on cross-examination about specific instances of the
conduct of a witness.
o 608(b) allows more liberal use of specific instances of conduct than does
405(a), which governs the forms of character evidence offered under 404(a)(1)
and 404(a)(2).
 405(a) permits inquiry into specific instances of conduct during cross-
examination of the character witness, but not during cross-examination
of any other person, including the person about whom the character
witness is testifying. Whereas, 608(b) would allow this.
o See Example and more explanations on 244
• Limitations on 608(b)(1)
o 608(b)(1) exposes every witness who takes the stand to possible cross-
examination about past “specific instances of conduct” of the witness that might
suggest she has an untruthful character.
 608(b) provides 2 explicit limitations:
29
 1. the specific instances of conduct must be “probative of truthfulness or

untruthfulness.”
 2. It may not be proved by extrinsic evidence.
• The ban on extrinsic evidence means the lawyer must accept the
witness’s answer to the question. If the lawyer asks about a
specific lie allegedly told by the witness at some point in the past
and the witness denies it, that is the end of the matter; the lawyer
may not call a 2nd witness to prove that the 1st indeed told the lie.
 A third limitation is implicit in 608(b)’s reference to “the discretion of
the court”: the inquiry must survive a 403 weighing test.
 A fourth limitation comes from MICHELSON: In general, a lawyer may
not ethically ask about specific instances of conduct without having a
good-faith basis for believing that they took place.
 Finally, most cts will not permit a lawyer to use 608(b) to offer evidence
that is of a type covered by 609, but is excluded by 609. Ie, convictions
over ten years ago.
• See Impeachment Diagram on 247 of Casebook
• US v. WHITMORE
III. Use of Past Convictions
• 609 – permits counsel to impeach witnesses with evidence of their past crimes
o 609(a)(1) gives criminal Ds stronger protections against impeachment by past
crimes than are accorded most witnesses. Note the extra-protective weighing test
that 609(a)(1) erects for criminal Ds.
• US v. BREWER
o Balancing Test under 609(a): There are 5 factors to determine if the probative
value of admitting the evidence outweighs its prejudicial effect under 609(a):
 (1)The nature of the crime
• Here, the nature of these crimes is that of violent action against
individuals. Acts of violence which may result from a short temper,
a combative nature, extreme provocation, or other causes,
generally have little or no direct bearing on honesty and veracity.
Thus, the nature of these 4 convictions is a factor against
admitting them for impeachment.
 (2) The time of conviction and the witness’ subsequent history
• The Court is of the opinion that the D’s continued conflict with the
law, even while on parole, is a factor supporting admission of the
convictions for impeachment purposes.
 (3)Similarity btn the past crime and the charged crime
• Where multiple convictions of various kinds can be shown, strong
reasons arise for excluding those which are for the same crime bc
of the inevitable pressur on lay jurors to believe that if he did it
before he probably did so this time. As a general guide, those
convictions which are for the same crime should be admitted
sparingly. Here, this principle would apply only to the prior
kidnapping conviction. If the Court should admit any of the four
convictions, a limiting instruction would be given to the jury
emphasizing that they are admitted only to impeach. There is a
strong argument to keep the prior kidnapping conviction from the
jury’s knowledge.
30
 (4) Importance of D’s testimony; and

 (5) The Centrality of the Credibility issue.
• US v. BRACKEEN
o Under 609(a)(2), the House Committee Report seems to indicate that a
narrow interpretation of the word “dishonesty” should be used. Congress
intended 609(a)(2) to apply only to those crimes that factually or by definition
entail some element of misrepresentation or deceit, and not to those crimes
which bad though they are, do not carry with them a tinge of falsification.
Therefore, a bank robbery is not per se a crime of dishonesty.
• If the TJ disregards 609’s safeguards and wrongly admits evidence of past convictions
to impeach a D, the D normally may appeal. The SCT has ruled, however, that a D may
not appeal from the tiral judge’s ruling unless 2 conditions are met: (1) the D must in fact
testify at trial (LUCE); (2) the prosecutor must introduce evidence of the contested
conviction (OHLER)
• Character and Credibility: Study Guide
o 609(a)(1)
 Is written in terms of the available penalty, not the penalty actually
assessed; in general it will be a felony, but the only requirement is that it
is punishable by at least 1 year or death.
 The evidence is admissible against a witness other than the accused in a
criminal case only if it survives a 403 weighing test.
• Evidence offered against the accused in a criminal case must
survive a stricter weighing test: It is admitted only if its probative
value outweighs its potential to cause unfair prejudice to the D.
The BREWER court laid out the 5 factors for determining this.
o The ct suggested that the 4th standard, the “important of
the defendant’s testimony,” means that the more critical
the D’s tetstimony is to his case, the more hesitant the ct
should be to admit the impeaching evidence.
o 609(a)(2)
 The BRACKEEN ct focused on the meaning of the “dishonesty or false
statement” standard in 609(a)(2), holding that bank robbery generally
doesn’t qualify under this standard.
 When deciding whether a crime involved dishonesty of false statement,
courts overwhelmingly look to the underlying facts of the crime and not
merely the charge.
 Evidence that meets the “dishonesty or false statement” standard “shall be
admitted.” It need not survive a 403 test and is not subject to the trial
court’s discretion. However, it is subject to the constraints imposed by
609(b), (c), and (d).
o 609(b) – When the conviction is more than 10 years old, it will be excluded
unless the ct determines that the probative value of the conviction substantially
outweighs its prejudicial effect.
 This is a stricter weighing test than either of those called for in 609(a)
(1).
 The endpoint for this time limit could be the date of the present
indictment, the date trial begins, or the date the witness testifies. The date
of indictment seems preferable.
31
o 609(d) – juvenile adjudications are never admissible in civil cases or to impeach

the testimony of criminal defendants. Even when used against other witnesses in
a criminal case, they must survive the strictest standard of any prescribed in
these rules. (See the rule)
o The Various Standards of Admission (See 267 of Case Book)
IV. Rehabilitation
• “Rehabilitation” concerns a party’s attempt to support a witness’s character for
truthfulness.
o As 608(a)(2) makes clear, one party may rehabilitate its own witness’s character
for truthfulness only after the other party has attacked the witness’s character
for truthfulness.
 What is an attack? – any attack under 608 and 609; an attack on the
truthfulness of a witness’s testimony in this proceeding can sometimes
constitute an attack on the witness’s general character of truthfulness,
depending on the circumstances.
• The truthfulness of a witness’s testimony in this proceeding may
be corroborated by non-character evidence without regard to the
constraints imposed by 608; and the litigant need not wait for the
opposing party to attack first.
V. Use of Extrinsic Evidence
• CL principle = extrinsic evidence will not be admitted on a collateral matter.
• A. Extrinsic Evidence In the Context of Character Evidence
o Under 405(a) the litigant may ask a character witness on cross-examination
whether that witness has heard of a specific act committed by the person about
whose character the witness is testifying; however, regardless of the witness’s
answer, the lawyer may present no other evidence (ie, no extrinsic evidence)
regarding the act.
o Under 608(b), the litigant may cross-examine a witness about specific instances
of conduct that bear on character for truthfulness; but the rule explicitly states
that such conduct, other than conviction of a crime as provided in 609, may not
be proved by extrinsic evidence.
o Extrinsic evidence that tends to prove both a collateral matter and something
else may well be admissible
 See Examples on 282-83
o 608(b)’s bar against extrinsic evidence applies only to evidence offerd to show
the witness’s general character for truthfulness. The rule places no restriction on
extrinsic evidence offered to show that the witness lied in this case. A lawyer
therefore may offer any sort of evidence otherwise permitted by the rules to prove
that the witness is biased or to contradict the witness’s testimony.
 Also, one very easily could read the vague term “credibility” in 608(b) to
include more than “character for truthfulness.”
• B. Extrinsic Evidence in the Context of Contradicting Specific Testimony
o Counterproof is admissible if it contradicts on a matter that counts, but not
otherwise. In other words, “Rule 402 and 403 displace the CL rules prohibiting
non-character-based impeachment on “collateral matters.” (CAN to Rule
608(b), (RB 129))
CHAPTER 5 – THE RAPE SHIELD LAW

Rules: 412, 404(b), 413, 414, 415
32
I. Historical Backdrop
• PEOPLE v. ABBOT
o Evidence of an alleged prostitute’s prior sexual encounters with other men was
admissible to rebut the accusation of rape.
• STATE v. SIBLEY
o Testimony that D’s general character for chastity and virtue was bad was
admitted to support that D raped victim.
II. The Shield Law
• 412
• A. Past Sexual Behavior with the Accused
• B. Explaining the Source of Physical Evidence
• C. Past Allegedly False Accusations
o STATE v. SMITH
 Question: Did the TCt improperly preclude D from introducing the
evidence of prior false allegations of molestation made by the victim? –
Yes
 Analysis: 412 is inapplicable to the instant situation as evidence that the
victim had previously accused another male of molesting her and then
quickly retracted those accusations is not evidence of past sexual behavior
of the victim, but rather impeachment evidence used to attack the victim’s
credibility. Because the evidence that D attempted to introduce did not
concern the victim’s prior sexual behavior, history or reputation for
chastity, the prior false allegations of sexual assault by the victim do not
constitute “past sexual behavior” for purposes of 412. Therefore, 412 is
inapplicable in sexual assault cases where D seeks to question witnesses
regarding the victim’s prior false allegations concerning sexual behavior
for impeachment purposes…When considering the admissibility of such
evidence, the question for the TCt is not whether it believed the prior
allegations were false, but whether reasonable jurors could find, based on
the evidence presented by D, that the victim had made prior false
allegations. (as in HUDDLESTON)
• D. 404(b)-Style Uses of Evidence of Past Sexual Behavior
o 1. Proof of Bias
 OLDEN v. KENTUCKY
• Holding: The Kentucky Ct of Appeals failed to accord proper
weight to petitioner’s Sixth Amendment right “to be confronted
with the witnesses against him.” The exposure of a witness’
motivation in testifying is a proper and important function of the
constitutionally protected right of cross-examination. A criminal
defendant states a violation of the Confrontation Clause by
showing that he was prohibited from engaging in otherwise
appropriate cross-examination designed to show a prototypical
form of bias on the part of the witness, and thereby to expose to
the jury the facts from which jurors could appropriately draw
inferences relating to the reliability of the witness. Here, petitioner
has consistently asserted that he and Matthews engaged in
consensual sexual acts and that Matthews – out of fear of
jeopardizing her relationship with Russell- lied when she told
Russell she had been raped and has continued to lie since. A
33
reasonable jury might have received a significantly different

impression of the witness’ credibility had defense counsel been
permitted to pursue his proposed line of cross-examination.
 BOGGS v. COLLINS
• Holding: Cross-examination as to bias, motive, or prejudice is
constitutionally protected, but cross-examination as to general
credibility is not. No matter how central an accuser’s credibility is
to a case, the Constitution does not require that a D be given the
opportunity to wage a general attack on credibility by pointing to
individual instances of past conduct.
 STEPHENS v. MILLER
• Synopsis of Rule of Law. When applying state rape shield
statutes, courts are required to evaluate whether the interests served
by the statute’s prohibitions give good reason for any restrictions
placed on a defendant’s right to testify.
• Issue. Did the lower court error in its application of the state rape
shield law by denying Appellant his constitutional right to testify
in his own defense by preventing him from stating his version of
the events?
• Held. No; a proper balance was struck between the interests of the
state and Appellant’s right to testify, as Appellant was permitted to
give his entire version of the facts except for the excluded
evidence.
o 2. D’s State of Mind
 United States v. Knox
• Holding: The TJ admitted some portions of the A/t’s proposed
testimony, but excluded any reference to individual acts of sexual
conduct by the prosecutrix. He concluded that neither those
individual acts nor her reputation, either known or believed by the
A/t, had any tendency to make the existence of any fact more or
less probable than it would be without the evidence. The fact-
finders received 2 distinct, and widely divergent, account of the
event which posed a factual issue of consent, unfettered by any
true possibility of mistake.
III. Propensity Evidence in Sexual Assault Cases

• 413, 414 and 415 are 3 of the true exceptions to the propensity evidence ban. These 3
rules permit prosecutors and civil plaintiffs to offer evidence of the D’s other acts of
sexual assault or child molestation “on any matter to which they are relevant.”
o Many are opposed to these rules
• LANNON v. STATE
o Synopsis of Rule of Law. The Indiana common law rule that
evidence of various types of prior sexual behavior is admissible (as an
exception to the general evidence principle that prior bad acts are
inadmissible), known as the “depraved sexual instinct exception,” is
abandoned, and the essence of Federal Rule of Evidence 404(b) is
adopted in Indiana as a result. However, the conviction is affirmed, as
34
the “impact” of the evidence of prior sexual behaviors, “was not of

sufficient weight to require reversal.
o Issue.
Should the Indiana common law “depraved sexual instinct exception”
be abandoned in favor of the standard set forth by Federal Rule of
Evidence 404(b), which provides, in essence, that evidence of
uncharged prior bad acts are not admissible? Was the admission into
evidence of the testimony of Victim and the other alleged victim
reversible error?
o Held.Yes; the rule should be abandoned and the standard of FRE
404(b) is adopted. No; the adoption of the new rule does not merit
reversal, as the probable impact on the jury was minimal; since other
testimony corroborated the testimony of Victim regarding the present
charged crime, the conviction is affirmed.
• STATE v. KIRSCH
o Synopsis of Rule of Law. New Hampshire’s equivalent to Federal Rule of
Evidence 404(b) prohibits the admission of evidence of “other crimes, wrongs, or
acts . . . in order to show the person acted in conformity therewith,” and only
allows evidence of prior bad acts to be admitted when it is offered to prove such
things as motive, intent, or a common plan.
o Issue.
Was the testimony from the alleged victims of the uncharged crimes
properly admitted under Rule 404(b) as evidence of Defendant’s
motive, intent, and/or common plan or scheme?
o Held. Reversed and remanded.
No; the testimony concerning the uncharged assaults should not have
been admitted, as it constitutes evidence offered to show Defendant’s
propensity to commit sexual assaults and that Defendant acted in
conformity therewith, not evidence of Defendant’s motive, intent,
and/or common plan or scheme.
• UNITED STATES v. GUARDIA

o Holding: 403 applies to all evidence admitted in federal court, except in those
rare instances when other rules make an exception to it, such as 609(a)(2).
Therefore 403 applies to evidence admitted under 413.
• US v. MOUND
o Synopsis of Rule of Law. Courts must apply a Rule 403 test to all evidence
offered, and Rule 413, so long as it is, “subject to the constraints of Rule 403,” is
constitutional.
o Issues.
Is Federal Rule of Evidence 413 unconstitutional as applied because it
allows punishment for past acts not currently at issue? Is Federal Rule
of Evidence 413 unconstitutional as applied because it violates
Defendant’s equal protection rights? Was it an abuse of discretion for
the lower court to admit Defendant’s prior conviction under Federal
Rule of Evidence 413, following a Rule 403 determination? Is it error to
admit items into evidence under Rule 413 when the same evidence
would be inadmissible under Rule 404(b)?
35
o Held. Affirmed.
No; Congress has the ultimate power to create exceptions to the
Federal Rules of Evidence it creates, and Rule 413 is essentially an
exception to the past practice of excluding evidence of prior bad acts.
• No; the Rule bears a rational relation to some legitimate end and Congress’s
judgment in enacting the Rule was rational.
• No; there were two alleged past acts, and the court properly applied the Rule
403 test and, in its discretion, determined to allow into evidence the prior
conviction, but not allow testimony concerning the uncharged crime.
• No; according to the legislative history of Rule 413, the rule was intended to
have the effect of allowing certain evidence that would be inadmissible under
Rule 404(b), and the present case is one such situation.
•
Chapter 8: Hearsay and the Confrontation Clause

MATTOX v. US
Issues
Was it error for the lower court to allow into evidence the court reporter’s record of
the testimony of witnesses who were deceased at the time of Appellant’s trial?
Was it error for the lower court to exclude the evidence offered by Appellant for the
purpose of impeaching one of the deceased witnesses?
Synopsis of Rule of Law. When a defendant is convicted of murder and then has that conviction
set aside and a new trial is held, a court reporter’s stenographic notes of the testimony of a
prosecution witness made at the first trial may be properly read into evidence at the second, so
long as the notes are properly verified; also, the Confrontation Clause is not violated by
disallowing a defendant from introducing evidence offered to impeach a witness that has died
since the
CRAWFORD v. WASHINGTON
reformulated the standard for determining when the admission of hearsay statements in criminal
cases is permitted under the Confrontation Clause of the Sixth Amendment. The Court held that
cross-examination is required to admit prior testimonial statements of witnesses that have since
become unavailable.
he United States Supreme Court held that the use of the spouse's recorded statement made during
police interrogation violated the defendant's Sixth Amendment right to be confronted with the
witnesses against the defendant where the spouse, because of the state law marital privilege, did
not testify at the trial and so was unavailable.
This decision had an immediate, profound effect upon the ability of prosecutors to prove their
cases through the use of evidence that had previously been admissible via various exceptions to
the hearsay rule. Justice Scalia's opinion explicitly states that any out-of-court statement that is
"testimonial" in nature is not admissible, unless the declarant is unavailable to testify in court,
and the defendant has had a prior opportunity to cross-examine him or her.
DAVIS v. WASHINGTON
Issue: Under the U.S. Supreme Court's interpretation of the Sixth Amendment in Crawford v.
Washington, may statements made to police during investigation of a crime, though not made
with the intent to preserve evidence, be admitted in court without allowing defendants to cross-
examine the person who made the original statements?
36
Holding: Yes. In a 9-0 decision authored by Justice Antonin Scalia, the Court ruled that the
Confrontation Clause of the Sixth Amendment, as interpreted in Crawford v. Washington, does
not apply to "non-testimonial" statements not intended to be preserved as evidence at trial.
Although McCottry identified her attacker to the 911 operator, she provided the information
intending to help the police resolve an "ongoing emergency," not to testify to a past crime. The
Court reasoned that under the circumstances, McCottry was not acting as a "witness," and the
911 transcript was not "testimony." Therefore, the Sixth Amendment did not require her to
appear at trial and be cross- examined.
HAMMON v. INDIANA
Issue: Under the U.S. Supreme Court's interpretation of the Sixth Amendment in Crawford v.
Washington, may statements made to police during investigation of a crime, though not made
with the intent to preserve evidence, be admitted in court without allowing defendants to cross-
examine the person who made the original statements?
Held: Yes. In an 8-1 decision authored by Justice Antonin Scalia, the Court ruled that the
Confrontation Clause of the Sixth Amendment, as interpreted in Crawford v. Washington, does
not apply to "non-testimonial" statements not intended to be preserved as evidence at trial. In
Hammon's case, however, the Court ruled that Mrs. Hammon's statements to the police were
testimonial. At the time of her questioning, Hammon faced "no emergency in progress" and "no
immediate threat to her person." Instead, the relative safety of the conversation between Mrs.
Hammon and the officer made it "formal enough" to qualify as a "testimonial" statement
intended as evidence of the past crime.
MELENDEZ-DIAZ v. MASSACHUSETTS
Question:
Is a state forensic analyst's laboratory report prepared for use in a criminal
prosecution "testimonial" evidence subject to the demands of the Sixth
Amendment's Confrontation Clause as set forth in Crawford v. Washington?
Held: Yes. The Supreme Court held that a state forensic analyst's lab report that is
prepared for use in a criminal prosecution is subject to the demands of the Sixth
Amendment's Confrontation Clause. the Court reasoned that the lab reports
constitute affidavits which fall within the "core class of testimonial statements"
covered by the Confrontation Clause. Therefore, when Mr. Melendez- Diaz was not
allowed to confront the persons who created the lab reports used in testimony at his
trial, his Sixth Amendment right was violated.
MICHIGAN V. BRYANT
Question:
Are inquiries of wounded victims concerning the perpetrator non-testimonial if they
objectively indicate that the purpose of the interrogation is to enable police
assistance to meet an ongoing emergency, and, thus, not afforded heightened
protection under Crawford v. Washington?
Yes. The Supreme Court reversed and remanded the lower court decision in a
majority opinion by Justice Sonia Sotomayor. The court held that the identification
and description of the shooter and the location of the shooting were "not
testimonial statements because they had a 'primary purpose . . . to enable police
assistance to meet an ongoing emergency.' Therefore, their admission at Bryant's
trial did not violate the Confrontation Clause."
37
Chapter 9 – Expert Testimony

Rules: 701, 702, 703, 704, 705
FRYE v. US
Synopsis of Rule of Law. When a test (such as a systolic blood pressure deception test) has not
gained scientific recognition from psychological and physiological authorities, expert testimony
regarding the results of such a test is inadmissible.
Issue. Was it error for the lower court to have excluded the expert testimony regarding the
systolic blood pressure deception test at Appellant’s criminal trial?
Held. No; the test results Appellant attempted to introduce into evidence did not meet the
requirement that such evidence be “sufficiently established to have gained general acceptance in
the particular field in which it belongs,” and therefore the test results were properly excluded by
the lower court.
DAUBERT v. MERELL DOW PHARMACEUTICALS

Synopsis of Rule of Law. The common law does not trump the legislatively enacted Federal
Rules of Evidence (F.R.E.).
Issue. Was the Frye test superseded by the adoption of the F.R.E.?
Held. Justice Harry Blackmun (”J. Blackmun”) delivered the opinion of the Supreme Court of
the United States (”Supreme Court”) holding that the F.R.E. provide the standard for admitting
expert scientific testimony, not Frye v. United States
The F.R.E. place appropriate limits on the admissibility of scientific evidence by assigning the
trial judge the task of ensuring that an expert’s testimony is reliable and relevant. The trial judge
is required to make a preliminary assessment of whether the underlying reasoning or
methodology of the testimony is scientifically valid and can be properly applied to the facts.
Cross examination, presentation of contrary evidence, and careful instruction on the burden of
proof are the appropriate means to challenge evidence based on valid principles, not the general
acceptance standard.
US v. CRUMBY
Synopsis of Rule of Law. When the prosecution has impeached a criminal Defendant’s
credibility and also impeached the criminal Defendant’s testimony by contradiction, the criminal
Defendant may introduce, to support his own testimony, evidence that he took and passed a
polygraph examination.
Issue. Are the results of the polygraph test to which Defendant submitted admissible at
Defendant’s criminal trial for bank robbery and aid and abet?
Held. Yes; the evidence is admissible under Federal Rule of Evidence 702 as scientific evidence,
but the use of the evidence must be narrowly tailored to the circumstances for which it is
relevant, and the prosecution must be given sufficient notice of Defendant’s intention to use the
test and a reasonable opportunity to administer its own test.
The court notes that its holding (that polygraph evidence is admissible) is limited to
impeachment evidence; the court does not address the issue of the general admissibility of all
polygraph evidence. This Court’s decision is clearly limited to the facts of this case . . . [and] the
Court has limited the potential prejudicial effects of the polygraph evidence by restricting the
purposes for which it may be introduced
38
KUMHO TIRE v. CARMICHAEL

Synopsis of Rule of Law. Federal Rules of Evidence (”F.R.E.”) Rule 702 gives a
district judge discretion to determine reliability of evidence in regards the
circumstances and facts of a particular case
Stop Here:
CHAPTER 10 – AUTHENTICATION, IDENTIFICATION, AND THE BEST
EVIDENCE RULE
Rules: 901, 902, 104
I. Authentication and Identification

• 901 and 902
• The problem of authentication reduces to a simple question: Is this exhibit what its
proponent says it is?
• By what standard must the proponent prove that the exhibit is what she says it is?
o 901(a): “The requirement of authentication is satisfied by evidence sufficient to
support a finding that the matter in question is what its proponent claims.”
 The rule therefore embraces the same standard applied by 104(b) when
the relevance of a piece of evidence turns on some other condition of fact.
Authentication is in fact a matter of conditional relevance.
o In addition, proper authentication demands that the proponent produce
sufficient evidence that the jury could reasonably find by a preponderance of the
evidence that the exhibit is what its proponent claims. (the same standard as
applied to 104(b) in HUDDLESTON)
o 901(b) supplies a helpful list of authentication techniques that “conform with
the requirements of this rule.”  these are illustrations only and do not limit the
litigant’s options.
o 902 designates several categories of docs as “self-authenticating.”  rests on the
theory that when a doc meets the conditions of one of these categories, practical
considerations reduce the possibility of unauthenticity to a very small dimension.
 Thus, Newspapers and other self-authenticating docs are therefore
admitted as prima facie genuine.
o Proof of Chain of Custody
 The most common authentication technique when drugs or other fungible
evidence are involved is to prove “chain of custody.” Proof of a “perfect”
chain of custody consists of testimony by each person who had custody of
the item from the moment it was seized from D until its delivery to the
courtroom; however, a chain of custody need not be perfect. 901(a) just
demands that the chain of custody be good enough to support a finding
that the matter in question is what its proponent claims.
 Normally a chain of custody is good enough if it supports a finding that
the item in question is the same item and that it is in substantially the
same condition.
• A. Documents
o UNITED STATES v. STELMOKAS
 Nothing really profound, just applies 901(b)(8) to the facts to
authenticate some documents, relying heavily on testimony.
• B. Phone Calls
o PEOPLE v. LYNES
39
 Question: The issue in this case is whether the proof was such that a jury
could find that d was indeed the caller? – Yes
 Holding: In some instances, the placing of a call to a number listed in a
directory or other similarly responsible index of subscribers, coupled with
an unforced acknowledgment by the one answering that he or she is the
one so listed, has been held to constitute an adequate showing. In other
cases, the substance of the conversation itself has furnished confirmation
of the caller’s identity; or if the caller recognizes the other’s voice. In each
case, the issue is one to be judged upon its own peculiar facts and decided
whether the proffered proof permits the drawing of inferences which
make it improbable that the caller’s voice belongs to anyone other than
the purported caller. Here, the caller called the detective hours after the
detective requested that he call; he stated his name; and asked for the
detective by name. There was enough proof for the jury to decide.
• C. Photographs and Videos
o SIMMS v. DIXON
 Admissibility of Photographs: The prime condition on admissibility is
that the photograph be identified by a witness as a portrayal of certain
facts relevant to the issue, and verified by such a witness on personal
knowledge as a correct representation of these facts. The witness who
thus lays the foundation need not be the photographer nor need the
witness know anything of the time or conditions of the taking. It is the
facts represented, the scene or the object, that he must know about, and
when this knowledge is shown, he can say whether the photograph
correctly portrays these facts…The photographer need not be at trial.
o WAGNER v. STATE
 “Silent Witness” Theory of Authentication for Videos/Photos: Relevant
photographic evidence may be admitted into evidence on the “silent
witness” theory when the TJ determines it to be reliable, after having
considered the following:
• 1. Evidence establishing the time and date of the photographic
evidence.
• 2. Any evidence of editing of tampering
• 3. The operating condition and capability of the equipment
producing the photographic evidence as it relates to the accuracy
and reliability of the photographic product.
• 4. The procedure employed as it relates to the preparation, testing,
operation, and security of the equipment used to produce the
photographic product, including the security of the product itself.
• 5. Testimony identifying the relevant participants depicted in the
photographic evidence.
40

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I. Probativeness and Materiality

 Within any logical chain of inferences, a clever lawyer could spot a

 What kind of finding is needed? – In HUDDLESTON v. US, the SCt found

• Therefore, there is little difference in the HUDDLETON standard

o C. “Upon, or subject to” in 104(b)

o U.S. v. JAMES – SEE PREVIOUS CASE DESCRIPTION

CHAPTER 2 – THE SPECIALIZED RELEVANCE RULES

was asserting (hearsay use) or merely to prove that the statement

• Example: The out-of-court statement “Alice is starting

the approach which, as a general proposition, makes

o 802 is not violated by admission of an identification

o 803(5) and 612

 See Chart 14 (p117)

• The residual exception may be invoked regardless of the availability or unavailability of

Chapter 3 – Character Evidence

I. The Character-Propensity Rule

o II. Identity: a. 404(b) Evidence: Special Relevance:

depended on the unusualness of the occurrence and the number

 405(a) permits the character witness to testify in the form of opinion or

putting on a seatbelt, yet many of us do so every single time we drive. Lack of

CHAPTER 4 – CHARACTER FOR TRUTHFULNESS

I. Character and Credibility: Study Guide

o In addition, all character evidence, to be relevant, must bear on a “pertinent trait

 1. the specific instances of conduct must be “probative of truthfulness or

 (4) Importance of D’s testimony; and

o 609(d) – juvenile adjudications are never admissible in civil cases or to impeach

CHAPTER 5 – THE RAPE SHIELD LAW

reasonable jury might have received a significantly different

III. Propensity Evidence in Sexual Assault Cases

the “impact” of the evidence of prior sexual behaviors, “was not of

• UNITED STATES v. GUARDIA

Chapter 8: Hearsay and the Confrontation Clause

Chapter 9 – Expert Testimony

DAUBERT v. MERELL DOW PHARMACEUTICALS

KUMHO TIRE v. CARMICHAEL

I. Authentication and Identification

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