[Note: Numbers in brackets refer to the printed pages of the Emanuel Law Outline where the topic is discussed.]

Emanuel Law Outlines 
Evidence

Chapter 1 
BASIC CONCEPTS

I. KINDS OF EVIDENCE

A. Direct versus circumstantial [11]

1. Direct evidence: Direct evidence is evidence which, if believed, automatically resolves the issue. (Example: W says, "I saw D strangle V." This is direct evidence on whether D strangled V.)

2. Circumstantial: Circumstantial evidence is evidence which, even if believed, does not resolve the issue unless additional reasoning is used. (Example: W says, "I saw D running from the place where V's body was found, and I found a stocking in D's pocket." This is only circumstantial evidence of whether D strangled V.)

3. Probative value: The probative value of direct evidence is not necessarily higher than circumstantial evidence, but it will sometimes be more readily admitted by the judge.

B. Testimonial versus real and demonstrative: [458]

1. Testimonial: Testimonial evidence arises when W makes assertions in court. The fact-finder must rely on W's interpretation of W's sensory data, W's memory, etc.

2. Real and demonstrative: Real evidence is a thing involved in the underlying event (e.g., a weapon, document, or other tangible item). Demonstrative evidence is a tangible item that illustrates some material proposition (e.g., a map, chart, summary). The fact-finder may interpret either real or demonstrative evidence by use of its own senses, without intervening sensing and interpreting by a witness.

II. CONDITIONS FOR ADMITTING EVIDENCE

A. Relevant: Only relevant evidence may be admitted. (FRE 402) [10 - 16]

1. Definition: Evidence is "relevant" if it has "any tendency to make the existence of [a material] fact ... more probable or less probable than it would be without the evidence." (FRE 401)

a. "Brick is not wall": The piece of evidence need not make a material fact more probable than not; it must merely increase the probability (even by a small amount) that the material fact is so. "A brick is not a wall," and the piece of evidence merely has to be one brick in the wall establishing a particular fact.

2. Exclusion: Even relevant evidence may be excluded if its probative value is substantially outweighed by the danger of: (1) unfair prejudice; (2) confusion of the issues; (3) misleading of the jury; or (4) considerations of undue delay, waste of time, or needless presentation of cumulative evidence. (FRE 403)

B. Offering testimonial evidence

1. Lay (i.e., non-expert) witness:

a. W must take oath, i.e., solemnly promise to testify truthfully. (FRE 603)

b. W must testify from personal knowledge. (FRE 602)

c. W must preferably state facts rather than opinions. At common law this rule is sometimes stated as a firm requirement (although often loosely enforced). Under FRE 701, W may give an opinion if it is: (1) rationally based on his own perceptions; and (2) helpful to the fact-finder.

d. At common law, W must be competent, and many groups of witnesses are deemed not to be (e.g., atheists, felons, interested parties). Under Federal Rules (and by statute in most states), nearly everyone with first-hand knowledge is competent. See, e.g., FRE 601: everyone is competent (except for judges and jurors, made incompetent by Rules 605 and 606 respectively). (But the federal court must generally honor a state rule of competency in diversity cases.)

2. Experts: Same rules apply to experts as to lay witnesses, except:

a. The expert may give opinion if this will be helpful to trier (FRE 702).

b. The expert's opinion need not be based on his personal knowledge - it may be based on information supplied by others. At common law, this is usually done by the hypothetical question. Under Federal Rules, it may be done either by the hypothetical or by out-of-court statements made to the expert (even inadmissible evidence); FRE 703. Under FRE 705, facts relied on by the expert need not be disclosed except under cross-examination or as required by court.

c. Qualification: Expert may be qualified by reason of "knowledge, skill, experience, training, or otherwise" (FRE 702), so formal academic training is not necessary.

3. Ultimate issues: At common law, opinions on "ultimate" issues are usually barred. But under FRE 704, even such opinions are allowed (except when they relate to the mental state of a criminal defendant).

C. Offering real and demonstrative evidence: See Chapter 8 of this Capsule Summary.

D. Making and responding to objections: [4 - 6]

1. Making objections:

a. Not automatic: Evidence will not be excluded unless the opponent makes an objection. FRE 103(a)(1).

b. Timely: The objection must be timely (usually before the witness can answer the question). FRE 103(a)(1).

c. Specific: The objection must be specific enough to explain to the trial judge and the appeals court the basis for it. Id.

d. Taking of exceptions: At common law, the opponent whose objection is denied must "take exception" in order to preserve the objection for appeal. In most states today, and under the Federal Rules, exceptions are no longer necessary.

2. Responding to objection: If the judge sustains objection, the proponent must usually make an "offer of proof" in order to preserve his right to argue on appeal that the evidence should have been admitted. That is, proponent must make it clear to the court (either by the lawyer's own explanation of what the evidence would be, or by questions and answers to the witness outside the jury's presence) what the evidence would be. FRE 103(a)(2).

Chapter 2 
CIRCUMSTANTIAL PROOF: SPECIAL PROBLEMS

I. RELEVANT EVIDENCE SOMETIMES EXCLUDED

A. Possible exclusion: Normally, all relevant evidence is admissible. (FRE 402) But even relevant evidence may be excluded if its probative value is "substantially outweighed by the dangers of unfair prejudice, confusion of the issues, or misleading the jury...." (FRE 403) Special rules govern certain types of circumstantial evidence which have been found over the years to be so misleading or so prejudicial that they should be categorically excluded without a case-by-case balancing of probative value against prejudice. [10, 14 - 16]

II. CHARACTER EVIDENCE

A. General rule: Evidence of person's character is, in general, not admissible to prove that he "acted in conformity therewith on a particular occasion." FRE 404(a). (Example: In a civil suit from an auto accident, P cannot show that D has the general character trait of carelessness, or even that D is a generally careless driver, to suggest that D probably acted carelessly in the particular accident under litigation.) [20 - 22]

B. Character in issue: [22 - 23]

1. Essential element: A person's general character, or his particular character trait, is admissible if it is an essential element of the case. (Example: P says that D has libeled him by calling him a liar. D may introduce evidence of P's character for untruthfulness, since that character trait is an essential element of D's defense that his statement was true.)

a. Illustrations: True "character in issue" situations are rare. Civilly, negligent entrustment (D gave dangerous instrumentality, like a car, to one he should have known was of careless or otherwise bad character) and defamation (above example) are the most common. Criminally, entrapment (prosecution rebuts by showing D was "predisposed" to commit the crime) is the only instance.

2. Types of evidence: When character is directly in issue, all three types of character evidence (specific acts, W's opinion, or the subject's reputation) are admissible.

C. Circumstantial evidence in civil cases: In civil cases, circumstantial evidence of character is generally inadmissible. [24 - 25]

1. Quasi-criminal acts: A few courts allow one who is charged in a civil case with conduct that would also be a crime to rebut this charge by presenting circumstantial evidence of his good character. But most courts, and the Federal Rules, do not.

D. Other-crimes (and "bad acts") evidence in criminal cases: [25 - 40]

1. General rule: The prosecutor may not introduce evidence of other crimes committed by D for the purpose of proving that because D is a person of criminal character, he probably committed the crime with which he is charged. Nor may the prosecutor show D's prior "bad acts" that didn't lead to convictions for this purpose.

a. FRE: See FRE 404(a): "Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith."

2. Proof of elements: But other crimes or bad acts by D may be admitted if this is done not to show D's general criminal disposition, but to establish circumstantially some element of the crime charged. See FRE 404(b) (other crimes, wrongs or acts "may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.")

Here are some common elements that may be circumstantially proved by other crimes that D has committed:

a. Signature: If the perpetrator's identity is in doubt, proof that D has committed prior crimes that are so similar in method that they constitute his "signature," and thus identify him as the perpetrator of the crime charged, may be proved. This is often described as proof of "modus operandi" or "m.o." [30 - 32]

b. Intent: Other crimes may be used to prove that D had the particular intent required for the crime charged. Generally, this is done to rebut D's contention that he did the act charged innocently or unknowingly. (Example: D, a mailman, is charged with stealing a coin from the mails; the prosecution is allowed to show that D also unlawfully possessed credit cards taken from the mails, in order to rebut D's argument that the coin accidentally fell out of an envelope and he planned to return it. U.S. v. Beechum.) [32 - 34]

c. Motive: Other crimes may be used to establish the defendant's motive for the crime charged. (Example: D is charged with car theft; prosecution may show that D had previously escaped from jail, and thus had a motive to steal the car.) [35]

d. Identity: Other crimes may be used to show that D was really the perpetrator, if he disputes this. For instance, the prosecution may be allowed to show that D committed other crimes, and that the other crimes and the crime charged are part of a common plan or scheme. (Example: D is charged with embezzling from his employer; he claims that someone else did the embezzling. The prosecution will be allowed to show that D embezzled from three prior employers, since this demonstrates that D was probably acting as part of a general scheme to steal from each of his employers.) [30, 36]

3. Other aspects of other-crimes evidence:

a. No conviction: The other crimes need not have led to a conviction. Many state courts require that the evidence of the defendant's guilt of the other crime be "clear and convincing" or "substantial." But in federal courts, it does not even have to be by a preponderance of the evidence. (Huddleston v. U.S.) [37]

b. Acquittal: The fact that the defendant was acquitted of the other crime will be a factor in determining whether there is "substantial" evidence of his guilt (in courts requiring this). But most courts will probably not automatically exclude the evidence of the other crime merely because of the acquittal. (Example: D is charged with murdering her child. Evidence that four of her other children died of unnatural causes will probably be allowed because of its strong tendency to prove that the death currently charged was not accidental, even though D was acquitted of similar charges as to the first death, when no cumulative evidence was available.) [38]

c. Balancing: Even where other crimes by D circumstantially establish an element of the present charge, the judge must still balance probative value against prejudice, and must exclude if the latter substantially outweighs the former. (FRE 403) [39]

d. Use by D: It's ordinarily the prosecution that uses the proof of D's prior crime or bad act to show some element of the present crime. But D, too, may show someone's past crimes or bad acts, to suggest that it's that other person, not D, who did the present crime. [29]

E. Evidence of criminal defendant's good character: [40-42]

1. Allowed: Evidence by a criminal defendant that he has a good general character is allowed by all courts. Evidence that he possesses a narrow favorable trait is allowed, but only if it is relevant to the crime charged. (Example: D is charged with murder. He will be allowed to show that he has the general character of being law-abiding. He will also be permitted to show the narrower trait of being peaceable. But he will not be allowed to show the narrow trait of being truthful, since this is not relevant to the murder charge.)

2. Method of proof:

a. Common law: At common law, proof of good character must be made by reputation evidence only (not by the character witness' opinion, or by proof of specific acts showing good character).

b. Federal: FRE 405(a) allows not only reputation evidence but also the character witness' own opinion as to D's good character. (But not even the Federal Rules allow proof of specific incidents showing D's good character.)

3. Rebuttal by prosecution: If D puts on proof of his good character, the prosecution may rebut this evidence:

a. Own witnesses: The prosecution may do this by putting on its own witnesses to say that D's character is bad.

b. Cross-examination: The prosecution may cross-examine D's character witness to show that D's character is not really good. The prosecutor may even do this by asking the witness about specific instances of bad conduct by D, provided that: (i) the prosecutor has a good faith basis for believing that D really committed the specific bad act; and (ii) the specific bad act is relevant to the specific character trait testified to by the witness (so if W testified that D was honest, the prosecutor could not ask about specific bad acts showing D's character for violence). Even an arrest that did not lead to a conviction may be brought up in cross-examination, if relevant to the character trait in question.

c. No extrinsic evidence: The prosecutor's ability to show specific bad acts is limited to cross-examination. He may not put on extrinsic evidence (e.g., other witnesses) to prove that the specific acts took place, if the character witness denied that they did. Conversely, the defendant may not put on other witnesses to show that the specific act referred to by the prosecutor on cross-examination never took place.

F. Character of victim: [43-51]

1. V's violent character: The defendant in a homicide or assault case who claims that the victim was the first aggressor, may in all courts introduce evidence that the victim had a violent character. This is true even if D cannot show that he was aware of the victim's violent character at the time of the assault or murder. This character evidence must generally be in the form of reputation or opinion evidence; most states (and the Federal Rules) prohibit evidence of specific past acts of violence by the victim.

2. Federal Rules: FRE 404(a)(2) allows not only proof of a murder or assault victim's violent character, but any "evidence of a pertinent trait of character of the victim of the crime offered by an accused...." (But this is very limited in rape cases, discussed below.)

3. Rebuttal by prosecution: Once the defendant introduces evidence of the victim's character for violence, the prosecution may then rebut this evidence by showing the victim's peaceable character. The Federal Rules expand this right of rebuttal; if the defendant claims that the victim was the first aggressor (even though the defendant does not put in proof of the victim's general character for violence), the prosecution may put in evidence of the victim's peaceable character. FRE 404(a)(2).

4. Rape: At common law, the defendant in a rape or sexual assault case could usually show the victim's character for unchastity, to show that the victim consented on this particular occasion. But nearly all states have now enacted rape shield statutes to restrict evidence of the victim's past sexual conduct.

a. FRE: The FRE's rape shield provision, FRE 412, completely disallows reputation or opinion evidence concerning the victim's past sexual behavior. FRE 412 also prohibits evidence of specific acts concerning the victim's past sexual behavior in most situations; for instance, D is never allowed to offer evidence of V's past sexual behavior with persons other than himself if offered on the issue of whether there was consent.

i. Civil: FRE 412 also applies to certain civil suits. For instance, if P sues for sexual harassment, D usually can't show that P was known to be promiscuous with others or dressed seductively, and thus indicated her willingness to accept sexual advances at work.

III. METHODS OF PROVING CHARACTER: REPUTATION, OPINION AND PROOF OF SPECIFIC ACTS

A. FRE: Whenever proof of a character trait is allowed, the FRE let that proof be by either reputation or opinion testimony. FRE 405(a).[51 - 56]

1. D's good-character evidence: So D in a criminal case can show his own good character by W's testimony that D has a good reputation for, say, honesty or non-violence, or by testimony that in W's opinion, D possesses these favorable character traits. (But D can't show specific instances of his own good character.) [51-52]

a. Rebuttal: If D makes this showing (thus "opening the door"), the prosecution may rebut by reputation or opinion evidence of D's poor character. Also, the prosecution may use specific acts evidence during its cross of D's good-character witnesses. (Example: Prosecution can ask D's character witness, "Would it change your opinion of D's peaceful nature to know that he started three fights at the Tavern on the Green in the last year alone?") [52]

i. Good-faith basis for specific-act question: Before the cross examiner asks about a specific act during cross, she must have a "good faith basis" for believing that the specific act really occurred. (Example: In above example, prosecutor must have a good-faith basis for believing that the barroom fights really occurred.) [55 - 56]

ii. No extrinsic acts: Also, the prosecution can't use extrinsic evidence of the specific acts, merely ask the defense's witness about them. (Example: On the above barroom-fights Example, if D's witness W said, "I don't believe those fights ever happened, and if they did they weren't started by D," the prosecution can't prove otherwise.) [55]

2. Character of victim: Similarly, D can show the character of the victim by use of reputation or opinion evidence. (Example: In murder case where D claims self-defense, D can put on W to testify, "In my opinion, V was always the kind of guy who liked to start fights.") [51 - 53]

a. Rebuttal: Again, the prosecution in rebuttal can not only use reputation or opinion, but can also refer to specific acts on cross.

3. Proof for "other purposes": Where a party (usually the prosecution) is using D's prior crimes or bad acts for some "other purpose" (e.g., identity, knowledge, etc.), this proof can be by "specific acts." (Example: If D is charged with robbing the 2nd Nat'l Bank with a blue ski mask and yellow raincoat, and D denies that he's the one who did it, prosecution can show that on June 21, D robbed the 1st Nat'l Bank wearing this distinctive garb, because it's so unusual as to amount to a "signature.") [53 - 54]

IV. PAST SEXUAL ASSAULT OR CHILD MOLESTATION BY D

A. FRE allows: Under FRE 413, if D is accused of a sexual assault, evidence that D has committed a sexual assault in the past is admissible, and may be considered on any relevant matter. (Example: If D's charged with raping V, prosecution may show that 20 years ago, D raped someone else. Prosecution may also argue, "The fact that D raped before means he's extra likely to have committed the present rape.") [57 - 58]

1. Child molestations; civil suits: Similar rules (FRE 414 and 415) allow: (i) proof that D previously molested a child to be introduced in his present molestation trial, and (ii) proof of D's prior sexual assaults or child molestations to be introduced in civil proceedings where P claims D sexually assaulted or molested P.

V. HABIT AND CUSTOM

A. Generally allowable: Evidence of a person's habit is admissible in most courts (and the FRE) to show that he followed this habit on a particular occasion. "Habits" are thus to be distinguished from "character traits" (generally disallowed as circumstantial evidence that the character trait was followed on a particular occasion). [62]

1. Three factors: There are three main factors courts look to in deciding whether something is a "habit" or merely a trait of character: [63]

a. Specificity: The more specific the behavior, the more likely it is to be deemed a habit. (Example: If V is killed when his car is hit on the railroad tracks, his estate will be allowed to show that he had almost always stopped and looked before crossing those tracks every day - this conduct will be a "habit," because it is very specific. But V's general "carefulness" will be found to be a character trait, not a habit, and will thus not be admissible to show that he probably behaved carefully at the time of the fatal crossing.)

b. Regularity: The more "regular" the behavior, the more likely to be a habit. "Regularity" means "ratio of reaction to situations." (So something that X does 95% of the time she's in a particular situation is more likely to be a habit than something X does 55% of the time in that situation.)

c. Unreflective behavior: The more "unreflective" or "semi-automatic" the behavior, the more likely it is to be a habit. (Examples: Using a left-hand turn signal is probably a habit because it's semi-automatic; going to temple for the Sabbath each Friday night is probably not a habit, because it requires conscious thought and volition.)

B. Federal Rules: FRE 406 follows the majority rule, by providing that "evidence of the habit of a person or of the routine practice of an organization, ... regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice." [65]

C. Business practices: All courts allow evidence of the routine practice of an organization, to show that that practice was followed on a particular occasion. (Example: A business may prove that a particular letter was mailed by showing that it was the organization's routine practice to mail all letters placed in any worker's "outgoing mail" box, and that the letter in question was placed in such a box.) [65]

VI. SIMILAR HAPPENINGS

A. General rule: Evidence that similar happenings have occurred in the past (offered to prove that the event in question really happened) is generally allowed. However, the proponent must show that there is substantial similarity between the past similar happening and the event under litigation. [65 - 70]

1. Accidents and injuries: Thus evidence of past similar injuries or accidents will often be admitted to show that the same kind of mishap occurred in the present case, or to show that the defendant was negligent in not fixing the problem after the prior mishaps. But the plaintiff will have to show that the conditions were the same in the prior and present situations.

2. Past safety: Conversely, the defendant will usually be allowed to show due care or the absence of a defect, by showing that there have not been similar accidents in the past. However, D must show that: (1) conditions were the same in the past as when the accident occurred; and (2) had there been any injuries in the past, they would have been reported to D.

VII. SUBSEQUENT REMEDIAL MEASURES

A. General rule: Courts generally do not allow evidence that a party has merely taken subsequent remedial measures, when offered to show that the party was negligent, or was conscious of being at fault. (Example: P trips on D's sidewalk; P may not show that just after the fall, D repaved the sidewalk and thus conceded the sidewalk's dangerousness.) [70 - 71]

1. Federal Rules: FRE 407 follows this rule: subsequent remedial measures may not be admitted to prove negligence or culpable conduct in connection with an event.

B. Other purposes: But subsequent remedial measures may be shown to prove elements other than culpability or negligence. For instance, such measures may be used to rebut the defendant's claim that there was no safer way to handle the situation. Or, if the defendant claims that he did not own or control property involved in an accident, the fact that he subsequently repaired the property may be shown to rebut this assertion. [71 - 74]

C. Product liability: Courts are split on whether the plaintiff in a product liability suit may show subsequent redesign to prove that the product was initially defective. Most federal courts reject such evidence. [74 - 75]

VIII. LIABILITY INSURANCE

A. General rule: Evidence that person carried or did not carry liability insurance is never admissible on the issue of whether he acted negligently. See FRE 411. (But evidence of the existence or non-existence of liability insurance is admissible for purposes other than proving negligence. For instance, the fact that W, a witness for D in a tort suit, works for D's liability insurance company, could be admitted to show bias on W's part.) [75 - 76]

IX. SETTLEMENTS AND PLEA BARGAINS

A. Settlements: The fact that a party has offered to settle a claim may not be admitted on the issue of the claim's validity. See FRE 408. [76 - 80]

1. Collateral admissions of fact: Admissions of fact made during the course of settlement negotiations are generally admissible at common law, but not admissible under FRE 408. (Example: "I was drunk when I ran over you, so I'll pay you $5,000 in damages," would be admissible at common law to prove D's drunkenness, but not admissible under FRE 408.)

2. Other purposes: But settlement offers may be admissible to prove issues other than liability. (Example: If W testifies on behalf of D in a civil suit, the fact that W received money from D in settlement for a related claim may be admitted to show that W is biased in favor of D and against P.)

B. Guilty pleas: 8[80 - 81]

1. Defendant's offer to plead: The fact that the defendant has offered to plead guilty (and the offer has been rejected by the prosecutor) may not be shown to prove that D is guilty or is conscious of his guilt. FRE 410(4) excludes not only the offer to plead guilty but any other statement made in the course of plea discussions with the prosecutor, from being used against the defendant.

2. Withdrawn plea: Similarly, the fact that D made a guilty plea and then later withdrew it may not be admitted against D in the ultimate trial.

3. Later civil case: The plea offer or withdrawn plea, and the accompanying factual admissions, are also not admissible in any later civil case. FRE 410(4).

C. Offer to pay medical expenses: The fact that a party has paid the medical expenses of an injured person is not admissible to show that party's liability for the accident that caused the injury. See FRE 409. But only the fact of payment, not related admissions of fact, are excluded. (Example: D says to P, "I'm paying your medical expenses because if I hadn't been drunk that night, I wouldn't have hit you." This may be admitted to show D's drunkenness but not to show that D paid the expenses.) [81 - 82]

Chapter 3 
EXAMINATION AND IMPEACHMENT OF WITNESSES

I. FLOW OF EXAMINATION

A. Four stages: The examination of a witness goes through up to four stages: [3]

1. Direct: First, the party who called the witness engages in the direct examination.

2. Cross: After the calling side has finished the direct exam, the other side may cross-examine the witness.

3. Re-direct: The calling side then has the opportunity to conduct re-direct examination.

4. Re-cross: Finally, the cross-examining side gets a brief opportunity to conduct re-cross.

II. DIRECT EXAMINATION

A. Leading questions: Generally, the examiner may not ask leading questions on direct. [95 - 97]

1. Definition: A leading question is one that suggests to the witness the answer desired by the questioner. (Example: Auto negligence suit by P against D. Question by P's lawyer to P: "Was D driving faster than the speed limit at the time he hit you?" This is leading, since it suggests that the questioner desires a "yes" answer.)

2. Hostile witness: Leading questions are allowed on direct if the witness is "hostile." The opposing party will almost always be deemed hostile; so will a witness who is shown to be biased against the calling side, as well as a witness whose demeanor on the stand shows hostility to the calling side.

III. CROSS-EXAMINATION

A. Leading questions: Leading questions are usually permitted during cross-examination. (FRE 611(c)) [98]

1. Exception: But if the witness is biased in favor of the cross-examiner (e.g., one party is called by the other and then "cross"-examined by his own lawyer), leading questions are not allowed.

B. Scope: The majority (and federal) rule is that cross is limited to the matters testified to on the direct examination. (FRE 611(b)) [98 - 100]

C. Credibility: The witness' credibility may always be attacked on cross-examination. [99]

IV. RE-DIRECT AND RE-CROSS

A. Re-direct: Re-direct is limited to those aspects of the witness' testimony that were first brought out during cross. [101 - 102]

B. Re-cross: Similarly, re-cross is limited to matters newly brought up on the re-direct. [102]

V. REFRESHING RECOLLECTION AND OTHER TECHNIQUES

A. Refreshing recollection [103 - 106]

1. General rule: If the witness' memory on a subject is hazy, any item (picture, document, weapon, etc.) may be shown to the witness to refresh his recollection. This is the technique of "present recollection refreshed."

2. Not evidence: The item shown to the witness is not evidence at all; it is merely a stimulus to produce evidence in the form of testimony from the witness.

3. Abuse: If the item shown to the witness is a document, and the trial judge concludes that the witness is really reading the document on the stand instead of testifying from his now-refreshed recollection, he may order the testimony stricken.

4. Cross-examination: The cross-examiner may examine the document or other item shown to the witness, and use any part of the document during cross-examination. Further, the cross-examiner may introduce into evidence any parts of the document that relate to the witness' testimony.

5. Documents seen before trial: If a document has been consulted by the witness before he took the stand, the Federal Rules give the trial court discretion to order that the document be shown to the other side, if "necessary in the interests of justice." (FRE 612)

B. Argumentative and misleading questions: A question will be stricken if it is either argumentative or misleading: [106 - 107]

1. Argumentative: An argumentative question is one which tries to get the witness to agree with counsel's interpretation of the evidence. It is more common on cross than on direct, and usually has an element of badgering the witness.

2. Misleading: A misleading question is one that assumes as true a fact that is either not in evidence or is in dispute. It usually has a "trick" aspect. (Example: "When did you stop beating your wife," will be misleading if there is no or disputed evidence of wife-beating, since any answer by W will be an implicit admission that he has beaten her.)

VI. EXAMINATION BY COURT

A. General rule: The trial judge may call his own witnesses, and may question any witness (whether called by the judge or by a party). (FRE 614(a) and (b)) [107]

VII. IMPEACHMENT - GENERALLY

A. Five types: There are five main ways of impeaching a witness, i.e., of destroying the witness' credibility: (1) by attacking W's general character (e.g., by showing past crimes, past bad acts, or bad reputation); (2) by showing a prior inconsistent statement by W; (3) by showing that W is biased; (4) by showing that W has a sensory or mental defect; and (5) by other evidence (e.g., a second witness' testimony) that contradicts W's testimony. [108]

B. Impeaching one's own witness: [108 - 111]

1. Common law: At common law, a party may not impeach his own witness. That is, impeachment is generally not allowed on direct examination.

a. Exceptions: But this common-law rule has several exceptions. Impeachment on direct is allowed if: (1) W's unfavorable testimony comes as a genuine surprise to the direct examiner (who may then show prior inconsistent statements by W); or (2) W is an adverse party or a hostile witness.

2. Modern and Federal Rule: Many states, and the Federal Rules, have now completely abandoned the common law rule prohibiting impeachment of one's own witness. See, e.g., FRE 607 ("The credibility of a witness may be attacked by any party, including the party calling the witness.") Also, a criminal defendant may have the right under the Sixth Amendment's Confrontation Clause to impeach a witness he has called.

VIII. IMPEACHMENT BY PRIOR CRIMINAL CONVICTION

A. Common-law rule: At common law, two types of prior convictions may be used to impeach W's credibility: [111]

1. Any felony conviction;

2. A misdemeanor conviction, but only if the crime involved dishonesty or a false statement.

B. Federal Rule: The Federal Rules make it slightly harder to use prior convictions to impeach the witness. Under FRE 609(a): [112 - 120]

1. Crimen falsi: If the crime involved dishonesty or false statement ("crimen falsi"), it may always be used to impeach W, regardless of whether it was a misdemeanor or a felony, and regardless of the degree of prejudice to W (who will usually be the defendant in a criminal proceeding). (The judge may not even exclude the evidence under FRE 403, which normally allows exclusion of evidence whose probative value is substantially outweighed by the danger of unfair prejudice.) [113 - 116]

Examples of crimen falsi: Perjury; false statement; criminal fraud; embezzlement; taking property by false pretenses; counterfeiting; forgery; filing false tax returns.

a. Other theft crimes: Most courts hold that theft crimes other than false pretenses and embezzlement are not crimen falsi. So shoplifting, robbery and receiving stolen goods aren't crimen falsi in most courts.

b. Look to underlying facts: Most courts say that the court may treat a crime as crimen falsi if the defendant actually behaved in a deceitful way, even if the crime isn't defined so as to require deceit.

2. Felony: If the crime was a felony not involving dishonesty or false statement, and the witness is the defendant in a criminal case, the crime may be used only if the court "determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused." [116 - 118]

a. Witnesses other than an accused: The above rule applies only when the witness is a criminal defendant. If the witness is not a criminal defendant (e.g., a prosecution witness, a witness for a criminal defendant, or any witness in a civil case), the witness gets no special protection against impeachment. Instead, FRE 403 applies, allowing a prior conviction to be excluded only if the person opposing its introduction shows that the conviction's probative value is "substantially outweighed by the danger of unfair prejudice...."

3. Other misdemeanors: If the crime was a misdemeanor not involving dishonesty or false statement, it may not be used for impeachment at all.

4. Old convictions: If more than 10 years have elapsed from both the conviction and the prison term for that conviction, the conviction may not be used for impeachment unless the court determines that there are "specific facts and circumstances" that make the probative value of the conviction substantially outweigh its prejudicial effect. FRE 609(b). This makes it much harder to get more-than-10-year-old convictions into evidence. [118]

5. In limine motions: D may, before taking the stand, ask the trial court to rule in limine whether a particular conviction will be allowed to impeach him. If the ruling goes against D, D can then elect not to take the stand. (But if he doesn't take the stand, the in limine ruling will not be reviewed on appeal, at least in federal courts.) [118]

6. Ineligible convictions: Certain types of convictions are excluded by special rules: If W was pardoned, based on a finding of innocence, the conviction may never be used. (If the pardon was because W was rehabilitated, it may be used for impeachment only if W has been convicted of a subsequent felony.) A "juvenile adjudication" of D may not be used to impeach him. FRE 609(c), (d). [119]

IX. IMPEACHMENT BY PRIOR BAD ACTS

A. Common law: [120 - 121]

1. Generally allowed: Most common-law courts allow the cross-examiner to bring out the fact that the witness has committed prior bad acts, even though these have not led to a criminal conviction. (E.g., "Isn't it true that you lied on your job application by falsely stating that you had never used drugs?")

a. Questions about arrests: Most courts say that the witness can't be asked whether he's been arrested for a particular act - the question must be, "Did you commit thus-and-such an act?" not "Did you get arrested for thus-and-such an act?"

2. No extrinsic evidence: The prior bad acts must be introduced solely through the cross-examination, not through extrinsic evidence. (Example: If W denies having lied on a job application, the cross-examiner cannot call a different witness to prove that the lie occurred.)

3. Good-faith basis: Before the prosecutor may ask a witness about a prior specific bad act, he must have a good faith basis for believing that the witness really committed the act.

B. Federal Rule: The Federal Rules basically follow the common-law approach to prior bad act impeachment. (FRE 608(b)) [121 - 127]

1. Probative of truthfulness: However, only prior bad acts that are probative of truthfulness may be asked about. (Example: A prior act of lying on a job application or embezzling from an employer could be asked about, but the fact that W killed his wife and was never tried could not be, because this act does not make it more likely than it would otherwise be that W is now lying.)

2. No extrinsic evidence: As at common law, any prior bad act must be shown only through cross-examination, not through extrinsic evidence.

3. Discretion of court: All questions about prior bad acts are in the discretion of the court. The extent to which the questioner has a good faith basis for believing W really committed the act will, of course, be one factor the court normally considers.

X. IMPEACHMENT BY OPINION AND REPUTATION REGARDING CHARACTER

A. Common law: [127 - 128]

1. Allowed at common law: Common law allows W1's credibility to be impeached by testimony from W2 that W1 has a bad reputation for truthfulness.

2. Opening issue: As soon as a criminal defendant takes the stand, he opens himself up to this kind of evidence, even if he does not affirmatively state that he is a truthful person.

3. Opinions: W2 must say that W1 has a bad reputation for truthfulness; W2 may not state his own opinion that W1 is untruthful. Nor may W2 describe specific instances of conduct by W1 that led to his bad reputation for truthfulness.

4. General bad character: W2 must talk only about W1's reputation for truthfulness, not W1's reputation for general bad character.

B. Federal Rules: FRE 608(a) basically follows the common law, except that W2 may state his opinion that W1 is a liar (as well as stating that W1 has a reputation for being a liar). Here, too, no specific instances of untruthfulness by W1 are allowed. [128 - 129]

XI. IMPEACHMENT BY PRIOR INCONSISTENT STATEMENT

A. General rule: W's credibility may generally be impeached by showing that he has made a prior inconsistent statement. [130]

B. Foundation: But before W's prior inconsistent statement may be admitted to impeach him, a foundation must be laid. [130 - 133]

1. Common law: At common law, the foundation requirement is rigid: W must be told the substance of the alleged statement, the time, the place, and the person to whom it was made. He must then be given a chance to deny having made the statement, or to explain away the inconsistency. Only after all this may the prior inconsistent statement be introduced into evidence.

2. Federal Rule: The Federal Rules liberalize the foundation requirement: W must still be given a chance to explain or deny the prior inconsistent statement, but this opportunity does not have to be given to him until after the statement has been proved (e.g., by testimony from W2 that W1 made the prior inconsistent statement).

3. Writing: If the prior inconsistent statement is written, the common-law rule is that the writing must be shown to the witness before it is admitted. But FRE 613(a) relaxes this requirement, too: the examiner may first get W to deny having made the prior statement, and then admit it into evidence.

C. Extrinsic evidence: Special rules limit the questioner's ability to prove that W made a prior inconsistent statement by "extrinsic" evidence, i.e., by evidence other than W's admitting that he did so (e.g., testimony by W2 or admission of a copy of W's prior written statement). Such extrinsic proof can only be made where two requirements are satisfied: [133 - 134]

1. Collateral: First, at common law extrinsic proof of the prior inconsistent statement is not allowed if the statement involved only "collateral" matters. Thus the statement must relate to a material issue in the case, or to some other fact that could be proved even if there were no claim that W had contradicted himself (e.g., W's prior statement showing bias could be introduced to contradict his trial testimony that he is unbiased, since extrinsic evidence could be used to show W's bias even if W did not deny the bias). Nothing in the Federal Rules expressly bars extrinsic proof of a prior inconsistent statement on a collateral matter (though the trial judge could keep such testimony out under FRE 403's balancing test).

2. Material: Also, extrinsic evidence of the prior inconsistent statement is allowed only if the inconsistency between the prior statement and the trial testimony is material (i.e., the variation is great enough to cast doubts on the veracity of W's present testimony).

XII. IMPEACHMENT FOR BIAS

A. Generally allowed: All courts allow proof that the witness is biased.W may be shown to be biased in favor of a party (e.g., W and P are friends or relatives), or biased against a party (e.g., W and D were once involved in litigation). W's interest in the outcome may be also shown as a form of bias (e.g., if W is an expert, the fact that he is being paid a fee for his testimony is generally allowed as showing that he has an interest in having the case decided in favor of the party retaining him). [134 - 135]

B. Extrinsic evidence: Bias may be shown by use of extrinsic evidence. However, most courts require a foundation before extrinsic evidence may be used for this purpose: the examiner must ask W about the alleged bias, and only if W denies it may the extrinsic evidence (e.g., testimony by another person that W is biased) be presented. [135 - 136]

XIII. IMPEACHMENT BY SENSORY OR MENTAL DEFECT

A. Generally allowed: W may be impeached by showing that his capacity to observe, remember, or narrate events correctly has been impaired. (Example: W may be shown to have such poor eyesight that he couldn't have seen what he claims to have seen.) [136 - 137]

B. Alcohol and drugs:

1. Use during event: W may be impeached by showing that he was drunk or high on drugs at the time of the events he claims to have witnessed.

2. Addiction: Courts are split on whether W may be shown to be a habitual or addicted user of alcohol and drugs - many courts will not allow this if there is no showing that W was drunk or high at the time of the events in question.

XIV. IMPEACHMENT BY CONTRADICTION; THE "COLLATERAL ISSUE" RULE

A. Showing of contradiction allowed: W1 may be impeached by presenting W2, who contradicts W1 on some point. (Example: W1 says that perpetrator of robbery had red hair; defense can put on W2 to testify that robber had brown hair - this not only is evidence of a material fact, but also impeaches W1.) [138 - 141]

B. Collateral issue rule: However, the right to put on a second witness to impeach the first by contradicting him, is limited by the "collateral issue" rule, at least at common law. By this rule, certain types of testimony by W2 are deemed to be of such collateral interest to the case that they will not be allowed if their sole purpose is to contradict W1. [141 - 146]

1. Disallowed: Thus, W2 may not testify as to: (1) prior bad acts by W1 that did not lead to a conviction; (2) prior inconsistent statements made by W1 that do not relate to a material fact in the case; or (3) things said by W1 in his testimony which according to W2 are not true, unless these facts are material to the case.

2. Allowed: On the other hand, testimony by W2 will not be deemed to be collateral, and will thus be allowed, as to the following subjects: (1) prior criminal convictions by W1; (2) W1's bad character for truthfulness; (3) W1's bias; or (4) W1's sensory or mental defect that prevents W1 from observing, remembering or narrating events correctly.

3. Federal Rule: The Federal Rules do not contain any explicit "collateral issue" rule. However, the trial judge can apply the policies behind the rule by using FRE 403's balancing test (evidence excludable where its probative value is substantially outweighed by confusion, prejudice, or waste of time).

XV. RELIGIOUS BELIEFS

A. General rule: Most courts do not allow W to be impeached by a showing that he does not believe in God. Impeachment based on religious beliefs is also barred by FRE 610. [146 - 147]

XVI. REHABILITATING IMPEACHED WITNESS

A. No bolstering: A lawyer may not offer evidence supporting his witness' credibility, unless that credibility has first been attacked by the other side. This is known as the rule against "bolstering one's witness". (Example: On direct, W tells a story favorable to P. P's lawyer will not be permitted to bring out on direct the fact that prior to the trial, W told the same story to the police - W's credibility has not yet been attacked, so it may not be bolstered by a showing that W made a prior consistent statement.) [147]

1. Prior identification: However, the "no bolstering" rule does not apply where W has made a prior out-of-court identification - most courts allow this to be brought out as part of the direct examination of W.

2. Prompt complaint: Similarly, in rape cases most courts allow the victim to in effect bolster her own testimony by stating that she made a prompt complaint to the police immediately following the crime.

B. Rehabilitation: Apart from these exceptions, W's credibility may be supported only to rehabilitate it, i.e., only to repair the damage done by the other side's attack on that credibility. [148]

1. Meet attack: The rehabilitating evidence must "meet the attack." That is, it must support W's credibility in the same respect as that in which the credibility has been attacked by the other side. (Example: P attacks W as being biased because he is D's son. D may rehabilitate W's credibility by showing evidence of non-bias. But D may not rehabilitate W by showing W's good reputation for truthfulness, or W's prior out-of-court statements that are consistent with his trial testimony - D's attempts at rehabilitation do not respond directly to the charge of bias.)

2. Good character: If W's credibility is attacked by evidence tending to show that he is generally untruthful, the proponent may show that W has a good character for truthfulness. Thus evidence of W's good character for truthfulness may be used to rebut evidence that: (1) W has a bad reputation for truthfulness; (2) that W2 has a bad opinion of W's truthfulness; (3) that W has been convicted of a crime; or (4) that W has committed a prior bad act; and perhaps (5) that W has been subjected to a slashing cross-examination by the opponent, implying or stating that W is a liar.

a. Attack on present testimony: But if the attack on W has merely been to show that his testimony in the present case is inaccurate, W's credibility may not be rehabilitated by a showing of his general good character for truthfulness. Thus good character evidence will not be allowed to rebut evidence that: (1) W is biased because he is related to the other party; (2) W has given erroneous testimony in this case, perhaps through honest mistake.

b. Prior inconsistent statement: If W has been attacked by a showing that he made a prior inconsistent statement, the courts are split. Most treat this as an implicit attack on W's general credibility, and thus allow him to be rehabilitated by a showing of good general character for truthfulness.

3. Prior consistent statement: The fact that W has made a prior consistent statement (i.e., an out-of-court statement that matches his trial testimony) may be used only to rebut an express or implied charge that W's trial testimony is a recent fabrication or the product of improper influence or motive. This is the common-law rule, and is also carried out by FRE 801(d)(1)(B). [149 - 151]

a. Attack on general character: Thus if W is attacked by showing his prior criminal convictions, prior bad acts, or his general bad reputation for veracity, his credibility may not be rehabilitated by a showing that he made prior consistent statements.

b. Prior inconsistent statement: The opponent's showing that W has made a prior inconsistent statement will not, by itself, entitle the proponent to show that W has also made a prior consistent statement. The proponent must demonstrate that the adversary's use of the prior inconsistent statement amounts to an express or implied claim that W has recently made up his trial testimony, or is lying because of improper influence or ulterior motives. (Thus if the showing of the prior inconsistent statement can reasonably be interpreted as suggesting that W is merely honestly mistaken, W cannot be rehabilitated by the prior consistent statement.)

c. Before motive arose: The proponent who wants to use a prior consistent statement must show that the prior statement was made before the alleged motive to fabricate or improper influence arose. This rule applies both at common-law and under FRE 801(d)(1)(B). [Tome v. U.S.]

XVII. SPECIAL TECHNIQUES FOR DEVELOPING OR EVALUATING TESTIMONY

A. Psychiatric testimony: The trial judge has discretion to allow psychiatric expert testimony to show that W's accuracy is doubtful because of some mental illness or defect. For instance, the judge might appoint a psychiatrist to give expert testimony as to whether V's mental illness may have caused her to imagine a rape, or to have falsified the surrounding details. But judges will generally order a party or witness to undergo psychiatric examination for purposes of evaluating credibility only if there are compelling reasons to do so. [157 - 158]

B. Hypnosis and truth serum: [158 - 160]

1. Statement made under influence: Statements made under the influence of hypnosis or truth serum are almost always rejected.

2. Testimony at trial: Live testimony by W about an event, his recall of which has been refreshed through hypnosis or truth serum, is also usually rejected. But a minority of courts allow hypnosis-influenced testimony if stringent safeguards have been followed (e.g., a video tape was made of the hypnosis session).

a. Criminal defendant's right to testify: Where the hypnotized witness is a criminal defendant, the court's right to reject hypnotically-refreshed testimony is limited by the defendant's constitutional right to testify in his own defense. [Rock v. Arkansas]

C. Lie detectors: [160 - 162]

1. General rule: Nearly all courts reject lie detector evidence when offered on the issue of whether the statements made by the subject during the test are true. (However, Daubert v. Merrell Dow, holding that scientifically valid techniques can't be excluded from federal trials just because they're not "generally accepted," may now be changing this blanket rule.)

2. Stipulation: A substantial minority of courts allow lie detector results where both parties have stipulated before the test that the results may be admitted.

Chapter 4 
HEARSAY

I. DEFINITION

A. Simple definition: Hearsay is "a statement or assertive conduct which was made or occurred out of court and is offered in court to prove the truth of the matter asserted." (Example: V says, "D tried to poison me last night." This is hearsay if offered to show that D really tried to kill V last night, since it is an out-of-court statement offered to prove the truth of the matter asserted.) [173]

1. Writing: Hearsay may be written as well as oral. (Example: A letter written by V to her mother, "D tried to kill me last night," would be hearsay if offered to prove that D really did this, just as would V's oral statement to her mother to the same effect.)

B. Four dangers: The use of hearsay testimony presents four main dangers: (1) ambiguity; (2) insincerity; (3) incorrect memory; and (4) inaccurate perception. All of these relate to the fact that the person making the out-of-court statement (the declarant) is not available for cross-examination. [173 , 174 - 175]

C. Triangle: In terms of the following "testimonial triangle," O's statement will only be hearsay if the trier of fact is asked to travel from point A to point B to point C (i.e., the fact-finder must be asked to determine that the declarant truly held the belief which his declaration suggests he held - point B - and also that declarant's belief accurately reflects reality - point C). [175]]

Error! Unknown switch argument.

Example: O is prosecuted for robbery; he claims that he was captured and forced to take part in the robbery. He offers a note he wrote to his wife during the captivity, "If I don't take part in the robbery, they'll kill me." The fact-finder is asked to travel from point A to point B (i.e., to determine whether O really believed his statement), but not to travel from point B to point C (i.e., to determine whether O's belief accorded with reality). Since the fact-finder is not asked to travel all the way around the triangle, O's statement is not hearsay.

II. SPECIAL ISSUES

A. "Out of court" statement: An out-of-court statement is any statement except one made "by a witness during the trial while testifying before the trier of fact." Therefore, the following will be out-of-court statements (and thus might be hearsay): [182]

1. Any oral or written statement by someone other than the at-trial witness; and

2. A prior statement by the at-trial witness, where the prior statement was not made in the present trial before the trier of fact. Therefore, W's prior statement made in a deposition or at an earlier trial, or even W's statement made in the judge's chambers during the present trial, are all "out of court" and so may be hearsay.

B. "Truth of matter asserted": Here are some uses to which a statement may be put that do not constitute offering the statement for the "truth of the matter asserted": [182 - 189]

1. Verbal acts: The statement is a "verbal act," i.e., an operative fact that gives rise to legal consequences. (Example: O says to W (a vice officer), "If you pay me $25 I will have sex with you." If O is prosecuted for solicitation, her statement will not be hearsay because it is not offered to show its truth (that O would really have had sex with W had he paid her $25); rather, the crime of solicitation is defined so as to make an offer to have sex for money an act with legal consequences.)

a. Verbal parts of act: Similarly, a "verbal part of the act", i.e., words that accompany an ambiguous physical act, is not offered for truth and thus is not hearsay. (Example: O gives X money, saying, "This will repay you for the money you lent me last year." If offered by X in defense of a bribery charge, this will be non-hearsay because the words that accompanied the payment give the payment its particular legal effect - loan repayment.)

2. Effect on hearer/reader: A statement offered to show its effect on the listener or reader will generally not be hearsay. Thus if a statement is offered to show that the listener or reader was put on notice, had certain knowledge, had a certain emotion, or behaved reasonably or unreasonably, this will not be hearsay. (Example: Malpractice suit against D, a hospital, for having hired X as a doctor. P offers written statements by two other hospitals refusing to allow X on their staffs because he was incompetent. If P shows that D saw the letters before admitting X to the staff, this will not be hearsay - the letters are not being offered to prove the truth of the matters asserted (that X was really incompetent), merely to show that a reasonable person in D's position would have doubted X's competence.)

3. Declarant's state of mind: Statements introduced to show the state of mind of the declarant are not offered for the "truth of the matter asserted" and thus are not hearsay.

a. Knowledge: Thus a statement offered to show the declarant's knowledge is not hearsay. (Example: D says to X, "I need to get my brakes checked because they haven't been working well." In a negligence suit by P against D, that statement is not hearsay, because it is not offered to show that the brakes really were defective, merely that D had knowledge that the brakes might be defective.)

b. Other mental state: Statements offered to show the declarant's sanity or emotion (e.g., fear) are similarly not offered for truth and thus are not hearsay. (Also, there is an exception for "statements evidencing states of mind").

4. Reputation: Statements about a person's reputation may not be hearsay. (Example: Libel action; W testifies at trial, "O told me that P has a reputation for thievery." If offered to show that O's statement caused this false reputation of P, this will not be hearsay - it is not offered to prove that P is really a thief, merely to prove that P has been given a false reputation for thievery.)

5. Impeachment: If W makes a statement at trial, use of a prior inconsistent statement made out of court by W will not be hearsay when used to impeach W's present testimony - what is being shown is not that the prior out-of-court statement was truthful, but that the conflict between the two statements raises questions about W's credibility.

C. "Statement" and conduct: The hearsay rule applies only to "statements." An oral or written assertion is obviously a statement. But certain types of conduct may also be statements: [190 - 194]

1. Assertive conduct: Assertive conduct is treated as if it were a "statement," so that it can be hearsay. (Example: O pulls D's mug shot out of a collection of photos; since by this act O intends to assert, "That's the perpetrator," this act will be hearsay if offered on the issue of whether D was the perpetrator.) [190]

2. Silence: A person's silence will be treated as a "statement," and thus possibly hearsay, only if it is intended by the person as an assertion.

a. Absence of complaints: The fact that one or more people have not made complaints about a situation will not usually be treated as the equivalent of a statement by them that there is nothing to complain about. Therefore, absence of prior complaints can usually be admitted without hearsay problems.

b. Silence in face of accusation: But a person's silence in the face of an accusation against him, where the silence is offered to show that the accusation was true, usually will be held to be intended as an assertion, and thus hearsay. (But the hearsay exception for admissions will usually apply anyway.) [190 - 191]

3. Non-assertive conduct: Conduct that is not intended as an assertion will never be hearsay, under the modern and Federal Rules. (This reverses the earlier common-law rule of Wright v. Doe.) [192 - 194]

a. Non-assertive verbal conduct: Even a verbal statement will not be hearsay if it is not intended as an assertion. (Example: D is charged with running a bookmaking operation out of his premises. W testifies that he answered D's phone, and the caller on the other end said, "Secretariat to place in the third." Caller's statement will not be hearsay, because even though it was verbal, the caller did not intend to assert, "I am talking to a betting parlor," or anything else.)

b. Non-verbal conduct: Similarly, non-verbal conduct that is not intended as an assertion will not give rise to hearsay. (Example: O, while walking down the street, suddenly puts up his umbrella. If this act is introduced to show that it was raining, it will not be hearsay - O was not intending to assert to anyone, "It's raining.")

4. Assertions not offered to prove truth of matter asserted: If an assertion is offered to prove another assertion that is implied by (or can be inferred from) the former, there is a hearsay problem only if the person making the assertion was thinking about the proposition now sought to be proved. (Example: O writes to T, "Cousin, the weather is wonderful in America and you would like it here." This assertion would not be hearsay if offered to establish that O thought T was sane, since it is unlikely that O was consciously thinking to himself when he wrote this letter, "T is sane." On the other hand, if O wrote to T, "As of your last letter, you seemed to be of sound mind," this would be hearsay even if offered as circumstantial proof that at some later date, T was still sane - O was thinking about the very issue now sought to be proved, T's sanity.) [195 - 197]

D. Multiple hearsay: If one out-of-court declaration quotes or paraphrases another out-of-court declaration, there is a problem of "multiple hearsay." The evidence is inadmissible if any of the declarations is hearsay not falling within an exception. (Example: W, an investigator, writes a report saying, "D told me that at the time of the crash, he was traveling at 65 mph." If this report is offered by P to show that D was indeed traveling at 65 mph, there are two levels of hearsay: D's original oral statement and W's out-of-court written paraphrase of it. But each would probably fall within an exception - D's original statement as an admission, and W's report under the business records rule. Therefore, the report could come into evidence.) [199 - 200]

Chapter 5 
HEARSAY EXCEPTIONS

I. ADMISSIONS

A. General rule: "Admissions" receive an exceptions from the hearsay rule. That is, a party's words or acts may be offered as evidence against him, even though these would be inadmissible hearsay if said or done by someone other than a party. (Under the Federal Rules, an admission is simply not hearsay at all. See FRE 801(d)(2). At common law, admissions are hearsay, but receive an exception.) [211 - 213]

1. Distinguished from declaration against interest: Be sure to distinguish admissions from declarations against interest. Unlike a declaration against interest, an admission need not be against the declarant's interest at the time it is made; thus even a statement that seems neutral or self-serving at the time it is made may be introduced against the party who made it.

2. Opinion: An admission is admissible even though it contains an opinion or a conclusion of law, and even though it is not based on the maker's first-hand knowledge. Thus it can be admitted more easily even than the same statement when made at trial.

B. Personal admissions: One type of admission is a party's own statement, offered against him ("personal admission"). [214 - 215]

1. Pleadings: Statements a party makes in his pleadings are treated as personal admissions for most purposes, and are thus admissible.

2. Conduct as admission: A party's conduct, even if it is intended as an assertion (and thus is hearsay under the modern rule) will be admissible under the exception for admissions. (Example: Proof of D's attempt to conceal V's body would be admissible as an admission by D of his guilt, even if the court decided that this was assertive conduct.)

C. Adoptive: Under common law and the Federal Rules, a party may be deemed to have adopted another person's statement, in which case the statement will be admissible as an admission by the former party. [216 - 220]

1. "Real and knowing" test: If a party is claimed to have adopted another's statement and the adoption is merely implied, the test is: whether, taking into account all circumstances, the party's conduct or silence justifies the conclusion that he knowingly agreed with the other person's statement.

2. Silence: Often, the party's silence in the face of the other person's statement will, under the circumstances, indicate that the party agrees with the statement. If so, he will be held to have made an adoptive admission, which will thus be admissible. (Example: While D flashes a large wad of bills, X, his girlfriend, says to W, "D got that money as his piece of the National Bank job last week." D's silence in the face of this statement will probably be found by the court to show D's knowing agreement with X's statement, since otherwise, D would have denied the statement. Therefore, the statement will be admissible against D as an adoptive admission.)

a. Criminal cases: In criminal cases, D's failure to respond to accusations made by the police while D is in custody will not be admissible against him as adoptive admissions, because this would violate the spirit of Miranda. But silence in the face of accusations made outside of police custody, or silence to accusations made by non-police, may be admitted against the criminal defendant under the adoptive-admission theory.

b. Writing: A party's silence in the face of a writing will similarly be an adoptive admission, if the party can reasonably be expected to have objected were the writing untrue. (Example: D receives a bill from a creditor, reciting certain sums owed for specified work. If D does not respond, his silence in the face of the bill will be treated as an adoptive admission by him of the truth of the bill's contents.)

D. Representative admission: Even if a party did not make (or even learn of) another person's admission, that admission may be admissible against the party because he authorized it in some way. This is a "representative" or "vicarious" admission. [220 - 223]

1. Explicit authorization: This may occur because the party explicitly authorized another person to speak for him. (Example: Transport Co. authorizes any employee who is involved in an accident to make a statement to the police. A statement made by Employee arising out of such an accident will be admissible against Transport, because it was explicitly authorized.)

a. Statements to principal: Even if the principal authorizes the agent only to make the report to the principal, the modern and federal approach is to treat this as an adoptive admission. Thus, an employee's accident investigation report, given only to the employee's boss, would nonetheless be admissible against the boss.)

2. Vicarious: Even if an agent is not explicitly authorized to make statements, statements he makes arising from a transaction within his authority will, under the modern view, be deemed to be authorized admissions by the principal. These are called "vicarious" admissions.

a. Common law: At common law, this was not so: only "authorized" admissions, not "vicarious" ones, would be admissible against the principal.

b. Modern and Federal Rule: But the modern and Federal Rule recognizes vicarious admissions. See, e.g., FRE 801(d)(2)(D), admitting a statement offered against a party if made "by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship." (Example: Truck Driver makes an accident statement to the police. Even if Employer, the company for which Driver works, never authorized him to make accident reports, under the modern/federal rule Driver's statement will be admissible against Employer because it relates to matters - driving and accidents - that were within Driver's employment. But the proponent of this admission will have to show by other evidence, not the statement itself, that Driver was acting Employer's agent at the time he made the statement.)

E. Co-conspirators: [223 - 228]

1. General rule: There is an important hearsay exception for statements by co-conspirators: a statement by one co-conspirator is admissible against other members of the same conspiracy, so long as the statement is made: (1) during the course of the conspiracy; and (2) in furtherance of the conspiracy. (Example: A says to X, "Don't you want to join B and me in robbing the First National Bank next Thursday?" This statement may be used against B in a prosecution for the robbery of that bank that took place on that date, since the statement was made by a member of the same conspiracy, made while the conspiracy was taking place, and made for the purpose of furthering its aims by recruitment.) See FRE 801(d)(2)(E).

2. "During course of": The requirement that the statement take place "during the course of" the conspiracy means:

a. After end: Statements made after the conspiracy has ended are admissible only against the declarant, not against the other members. Thus, if the conspiracy is broken up by the arrest of A and B (the only members of the conspiracy), anything B says to the police will not be admissible against A, since the arrest has terminated the conspiracy.

b. Conspirator leaves: If A leaves the conspiracy, but B and C continue the conspiracy without him, statements made by B and C after A leaves may not be admitted against A. (But the converse is not true: statements made by A to the authorities after he has left the conspiracy might be admissible against B and C, since their conspiratorial activities are still continuing at the time of A's statement).

c. Statements before: Statements made by early conspirators before a later entry joins are admissible against the latter - when a conspirator enters an ongoing conspiracy, he is held to have adopted the earlier statements of fellow co-conspirators, so these are admissible against him.

3. In furtherance: The "in furtherance" requirement means that a statement should be admitted against a co-conspirator only if it was made for the purpose of advancing the conspiracy's objectives.

a. Weakly applied: But this requirement is often not taken seriously. Thus, confessions by a co-conspirator, narratives of past events, or statements by the declarant blaming a crime on his co-conspirators rather than himself, are all frequently admitted under the exception even though, strictly speaking, they don't seem to meet the "in furtherance" requirement since they don't advance the conspiracy's objectives.

4. No need to charge conspiracy: Statements by one co-conspirator against another may be admitted under the exception even if no conspiracy crime is formally charged.

5. Procedure: It is the judge who decides whether a conspiracy has been shown, so that the exception applies. He reaches this decision as follows:

a. Preponderance: He need only find that a conspiracy exists by a preponderance of the evidence, not "beyond a reasonable doubt."

b. Statements: In determining whether a conspiracy exists by a preponderance, he may consider the alleged statement itself. (It is unclear whether there must be other, independent, evidence of a conspiracy's existence as well.)

II. AVAILABILITY IMMATERIAL - GENERALLY

A. List of exceptions: Four major hearsay exceptions apply even where the declarant is available to give courtroom testimony: [229]

1. Spontaneous, excited, or contemporaneous utterances (including statements about physical or mental condition);

2. Past recollection recorded;

3. Business records; and

4. Public records and reports.

III. SPONTANEOUS, EXCITED, OR CONTEMPORANEOUS UTTERANCES (INCLUDING STATEMENTS ABOUT PHYSICAL OR MENTAL CONDITION)

A. Statements of physical condition: There is a hearsay exception for statements by a person about his physical condition. [230 - 232]

1. Statement to lay person: If the statement is made to a lay person, it is covered by the exception only if it relates to the declarant's present bodily condition or symptoms. Usually, it will relate to pain. (Example: X says to W, "I'm feeling terrible chest pains." W can testify about this statement even if it is offered for the purpose of showing that X did indeed suffer chest pains.)

2. To treating doctor: For statements made by a person about his bodily condition, when made to a physician who is treating him, the exception is broader:

a. Past symptoms: The statement may be about past pain or past symptoms.

b. Cause: The statement may include references to the cause of the bodily condition (though statements about whose fault the condition is will generally not be allowed; thus W's statement that he was hit by a car will qualify, but his statement that the car was driven through a red light would not).

c. Statement by friend or relative: A statement made by a third person (e.g., a friend or relative of the patient) is also covered, if made to help the patient get treatment.

d. Non-M.D.: Under FRE 803(4), statements made for purposes of getting medical treatment that are made to a nurse, ambulance driver, hospital admitting clerk, or other third person involved in the health-care process, are covered by the exception.

e. Non-treating physician: If the statement is made to a doctor who is not furnishing treatment, but who is consulted so that he can testify about the patient's condition at trial, the statement is covered by the federal exception (but not by the common-law exception).

B. Declaration of mental condition: There is a hearsay exception for statements by a person concerning his present mental or emotional state. [233 - 245]

1. State of mind directly in issue: The exception is often used where a declarant's state of mind is directly in issue. (Example: P sues D for alienating the affections of W, who is P's wife. W's statement to P, "I don't like you anymore," if offered to show that W does not like P anymore - an element of P's prima facie case - comes within the exception.)

a. Presently existing: The statement must relate to the declarant's presently existing state of mind. (Example: "I hate my husband," is acceptable to show the declarant now hates her husband. But, "Yesterday I was really furious at my husband," is not admissible, because it relates to a prior mental or emotional state, rather than the declarant's present one.)

b. Surrounding circumstances: If statement of present mental state includes a reference to surrounding circumstances, the entire statement will normally be admitted, but with a limiting instruction. (Example: "I hate my husband because he's an adulterer." The whole statement will be admitted under the exception, if offered to prove that the declarant hated her husband at the time of the statement; the jury will be instructed that it may not use the statement as proof that the husband was an adulterer.)

2. Proof of subsequent event: The exception also applies where a declaration of present mental state (especially present intent) is offered not because the mental state itself is in issue, but because that mental state is circumstantial evidence that a subsequent event actually took place. (Example: O says, "I plan to go to Crooked Creek." This statement of present intent is admissible to show that O probably subsequently went to Crooked Creek. Mutual Life Ins. v. Hillmon.) [236 - 237]

a. Cooperation of other: If the statement of present intent concerns an act which requires the cooperation of a third person, most courts will allow the statement to be used as circumstantial evidence that the declarant did the contemplated act with the third person's cooperation. However, in this situation, courts usually require that there be independent evidence either that declarant really did the intended act, or that the third person actually participated. (Example: V says, "I'm going to buy drugs from D in the parking lot." This statement of present intent will be admissible to show that V probably did meet D in the parking lot, but only if there is some independent evidence - other than the statement - either that D really went to the parking lot or that V did. U.S. v. Pheaster.) [238 - 241]

3. Statements of memory or belief: The "state of mind" exception does not to statements of memory or belief about past actions or events, when offered to prove that the past action or event took place. Thus FRE 803(3) excludes "a statement of memory or belief to prove the fact remembered or believed...." (Example: O says, "I believe that my husband has poisoned me." Even though this is a statement of present belief, it is not admissible under the "state of mind" exception to prove that the husband really did poison O, since it is offered to prove the fact believed. Shepard v. U.S.) [241 - 245]

a. Intent coupled with recital of past acts: If the statement is mainly an expression of intent to do a future act, the fact that it contains a brief recital about some past, relevant, fact will not cause the statement to be excluded. This is especially true where the declarant explains a past motive for his contemplated action. (Example: O says to W, "D has asked for some bribe money. I'm going to send it to him in Bridgeport." Most courts would probably allow in the entire statement, since it is mainly a statement of intent offered to show that the intended act - delivering the money - eventually took place, and the reference to the past act is merely by way of explaining the intended act.)

b. Execution of will: A declarant's statement relating to his will is covered by the "state of mind" exception, even though the statement may be one of memory or belief offered to prove the fact remembered or believed. See FRE 803(3), making the hearsay exception applicable to a statement of memory or belief that "relates to the execution, revocation, identification, or terms of declarant's will." (Example: O says, "I changed my will yesterday to disinherit my no-good husband." If offered in a will contest to show that O intended to disinherit her husband, this statement will be admissible even though it is a statement of memory offered to prove the truth of the fact remembered.)

C. Excited utterance: There is a hearsay exception for certain statements made under the influence of a startling event; this is called the "excited utterance" exception. [245 - 247]

1. Requirements: Under the Federal Rules and most courts, there are two requirements for the exception: (1) the statement must relate to a startling event or condition; and (2) the statement must have been made while the declarant was still under the stress of excitement caused by the event or condition. See FRE 803(2).

2. Time factor: In determining whether the declarant was still under the influence of the startling event, the time that has passed between the event and the statement is of paramount importance. Usually, statements made during the exciting event or within half an hour afterward are admitted, statements made more than an hour later are not, and statements between a half hour and an hour are decided based on the surrounding circumstances.

3. Reflection: Since the rationale behind the exception is that statements made by a declarant who does not have the opportunity to reflect should be admitted as unusually reliable, facts showing that the declarant really did reflect will cause the exception not to apply. Thus if the statement is very self-serving, or is in response to a detailed question, the court is likely to find that the declarant reflected (rather than speaking spontaneously), so that the exception should not apply.

4. Reference to startling event: Some courts insist that the excited utterance explain or refer to the startling event. But this is not required by the Federal Rules or other courts. (Example: Truck Driver, after getting in an accident, says, "Hurry up, I've got to get to my next customer." If offered to prove that Driver was on business on behalf of his employer, some courts would reject the statement because it does not refer to the startling event - the accident - but the Federal Rules and other state courts would admit the statement anyway.)

D. Present sense impression: Many courts, and the Federal Rules, today recognize an exception for "present sense impressions," even where the declarant is not excited. Thus FRE 803(1) gives an exception for a statement "describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter." (Example: O sees a car speed by in the opposite direction, and says, "If the driver keeps up that rate of speed, he'll surely crash." In courts recognizing the exception for present sense impressions, this statement would be admissible to show that the car was traveling fast. Houston Oxygen Co. v. Davis) [247 - 249]

1. Immediacy: In contrast to the excited-utterance exception, the present-sense-impression exception applies only if virtually no time passes between the event being perceived and the declarant's statement about it.

2. Must describe or explain: The present sense impression must describe or explain the event that the declarant has perceived (in contrast to the usual rule for excited utterances).

IV. PAST RECOLLECTION RECORDED

A. Four requirements: A written record of an event, made shortly after the event has occurred, will be admissible under the hearsay exception for "past recollection recorded," if four requirements are met: [250 - 251]

1. First-hand knowledge: The memorandum must relate to matters of which the sponsoring witness once had first-hand knowledge. (Example: W writes down an inventory. If he says at trial that some of the information in the inventory was known only to his assistant who supplied the information, not to W, the memorandum will not be admissible under the past recollection recorded requirement unless the assistant is also available to testify.)

2. Made when fresh in memory: The record must have been made when the matter was fresh in the witness' memory. Under the Federal Rules, even a record made several days after the events in question might be held to satisfy this requirement if there was evidence that the person doing the recording would still have had a clear memory of it.

3. Impaired recollection: A sponsoring witness' memory of the event recorded must now be impaired - if he can clearly remember the events, he must testify from memory rather than have the document admitted. Under the Federal Rules, he must merely have some impairment of his memory (in contrast to the common law requirement that he lack any present memory of the event).

4. Accurate when written: The sponsoring witness at the trial must testify that the record was accurate when it was made. (But the sponsoring witness does not have to be the person who made the record; thus if X made the record, it may be sponsored by W, X's assistant, who can testify that after the record was made, W checked it and determined it to be accurate.)

a. Multi-party problem: If A knows the facts and B records them, both A and B will probably have to testify at the trial for the record to be admissible: A will testify that the facts he told B were ones that he, A, knew to be accurate; then B will testify that he accurately recorded what A told him.

B. Status as exhibit: Under the Federal Rules, the record cannot be taken into the jury room as an exhibit, unlike other forms of real or demonstrative evidence - the theory is that the record is in lieu of testimony, so it should not be given greater weight than testimony by being taken to the jury room. But the record is evidence. (This makes the past recollection recorded different from a document used to jog the witness' memory under the present recollection refreshed exception - the latter is not evidence, but is merely an aid to stimulate testimony.) [252]

V. BUSINESS RECORDS

A. General/Federal Rule: Nearly all states recognize a hearsay exception for certain types of business records. The Federal provision (FRE 803(6)) is typical; the business record is admissible if: [254 - 255]

1. Routine of business: The record was made in the routine of the business;

2. Knowledge: The record was made by, or from information supplied by, a person with personal knowledge of the matter recorded and who is working in the business; and

3. Timeliness: The entry was made "at or near the time" of the matter recorded.

Example: The shipping department of Store records every shipment sent out to a customer. Store's ledger showing a shipment made to D will be admissible under FRE 803(6) if Store establishes that: (1) it regularly kept a written record of every shipment that went out; (2) the person who wrote the ledger entries did so either from his personal knowledge that a given shipment had gone out, or by being told that this had happened by a person with such direct knowledge and a business duty to disclose that knowledge; and (3) the ledger entries were made shortly after each shipment actually went out.

B. "Business" defined: "Business" is defined broadly under modern statutes. Thus, FRE 803(6) applies to schools, churches, and hospitals, even though these are not necessarily profit-making entities. [255]

C. Person supplying information: The person who originally supplies the information that goes in to the record must satisfy two requirements: (1) he must have first-hand knowledge of the fact he reports; and (2) he must do his reporting while working in the business. The latter requirement means that if the source of the information is not an employee of the business that keeps the record, the exception may not apply - thus statements by witnesses to an accident, even if made to a police officer or other person with a business duty to compile a report, will not be admissible. Johnson v. Lutz. [255 - 256]

D. "Regular course of business": Although the proponent must show that the report was made in the "regular course of business," even reports of a sort that are rarely made may qualify. For instance, if a business makes a practice of making a record of any accident that occurs during the transaction of business, the "regular course of business" requirement will be satisfied even though accidents happen rarely. (But the rareness with which a certain type of record is kept may suggest that the particular record is untrustworthy, violating a different requirement, discussed below.) [256 - 257]

E. Opinion: The modern trend is to accept even opinions contained in the report, if these would be admissible when given as part of live testimony. Thus, if the person supplying the report or making the record is an expert, his statement (e.g., "Patient seems to be suffering from schizophrenia") will be admitted if he would be permitted to make the same statement at trial. FRE 803(6) even allows lay opinions to be admitted, assuming there is no grounds for doubting their trustworthiness. [257 - 258]

F. Untrustworthy: If the surrounding circumstances make the record seem untrustworthy, the court has discretion to exclude it. For instance, if the facts indicate that the business that made record had a strong motive to create a self-serving record, the court may exclude it. (Example: After a train crash, Railroad conducts an internal investigation, and makes a report absolving the engineer. Railroad's strong incentive to cover-up so as to avoid liability may cause the court to exclude the report for untrustworthiness.) [258]

G. Absence of entry: If a regularly kept business record would otherwise qualify, it may usually be admitted to show that a particular entry is absent, if such an entry would normally have been made had a particular event occurred. (Example: Merchant keeps regular records of every payment by a customer. If the issue is whether Customer has paid a particular bill, Merchant may admit its records to show that no indication that Customer paid this particular bill was ever placed on its records.) [258 - 259]

H. Oral reports: Most courts hold that the record must be in writing. (Example: Foreman reports to Boss that Employee has hurt his hand on a machine. Even if making such an oral report is part of Foreman's job, Boss will not be permitted to testify that Foreman made the report, because the report was not in writing.) [259]

I. Proving the record: The business record is not "self admitting." Instead, a sponsoring witness must be called who can testify that the requirements of the business-records statute were satisfied. Typically, this will be someone who knows enough about the record-keeping routine of the business to testify that the records were appropriately kept in the particular instance (even if this witness did not make or observe the particular entry in question). [259 - 260]

J. Special situations: Here are two recurring situations where the business records exception is often applied: [260 - 263]

1. Hospital records: Hospital records are often introduced to prove the truth of statements contained in them. Even statements contained in the record that are not declarations of symptoms (e.g., "Patient said he was hit by a truck") will be admitted if part of the record. But totally extraneous matter (e.g., "Patient says that the car that hit him ran a red light") will not be admitted.

a. Patient under no duty: If the information comes from the patient, it will not normally satisfy the requirement that the person supplying the information must have been working for the business (in this case, for the hospital). However, the hospital record can usually be admitted for the limited purpose of showing that the patient made a particular statement; then, some other exception may apply to allow the patient's statement to be offered for the truth of the matter asserted. For instance, if the patient is the plaintiff, the defendant will be able to introduce the statement against him because it is an admission; similarly, if the patient is reporting his current symptoms or other bodily condition, the "statement of present physical condition" exception will apply.

2. Computer print-out: Computer print-outs will often be admissible to prove the truth of matters stated in the print-out. However, the proponent must show that: (1) the print-out comes from data that was entered into the system relatively promptly; and (2) the procedures by which the data was entered, the program written, the report prepared, etc., are all reasonably reliable.

VI. PUBLIC RECORDS AND REPORTS

A. Common-law rule: At common law, there is an exception for admission of a written report or record of a public official if: (1) the official has first-hand knowledge of the facts reported; and (2) the official had a duty to make the record or report. [263 - 264]

B. Federal Rule: The federal public records and reports exception is even broader. FRE 803(8) admits three different types of public records and reports: [264 - 265]

1. Agency's own activities: Subsection (A) allows admission of a government agency's records of its own activities, if offered to show that those activities occurred. (Example: P sues the FBI for invading his privacy; he could introduce the agency's own surveillance records to prove that the agency tapped his phone.) [265]

2. Matters observed under duty: Subsection (B) makes the written records of observations made by public officials admissible if: (1) the observation was made in the line of duty; and (2) the official had a duty to report those observations. (Example: An IRS agent does a field audit of Smith's tax return at Smith's house. If Smith claims a deduction for "home office," and the agent finds no evidence of one, his written report to his superior can be introduced in a later civil suit on the issue of whether Smith had a home office. But the agent's observation that Smith possessed cocaine would not be admissible, since the agent had no duty to report non-tax related matters.) [265]

3. Investigative reports: Subsection (C) allows the admission of "factual findings" resulting from investigations, except when used against a criminal defendant. (Example: Following an accident, the police send an accident investigator, who writes a report that concludes that the crash was caused when the vehicle traveling east-west went through a stop light. This report would be admissible in a civil suit arising out of the crash.) [266]

C. Criminal cases: Use of FRE 803(8) in criminal cases raises special issues: [266 - 270]

1. No use of (B) and (C): Subsections (B) and (C) may not be used against the defendant in a criminal case. Thus a police officer's written report stating that he has seen D commit a robbery, or a detective's report concluding that a previously unsolved crime has probably been committed by D, could not be admitted against D in his trial. (Probably each of these reports, however, could be used by D against the government in the criminal trial.)

2. "Other law enforcement personnel": Subsection (B) does not apply in criminal cases to matters "observed by police officers and other law enforcement personnel." Observations by laboratory technicians working in government laboratories (e.g., the results of substance analysis performed by a police department chemist) have sometimes been excluded under this provision.

3. Use of other exceptions: It is not clear whether a report that would otherwise come within subsection (B) or (C), and that is excluded under those provisions because it is used against a criminal defendant, may nonetheless be admitted under some other exception, e.g., the business records exception.

a. Minority view: Some courts have flatly rejected all such evidence. (Example: The prosecution offers a substance analysis report prepared by a chemist working for the government, to prove that substance taken from D was heroin. Even though this was a "regularly kept record" by an organization, and thus would otherwise have qualified under the business records exception, it was disallowed because it fell within the explicit exclusion of 803(8)(B). U.S. v. Oates.)

b. Majority view: But probably the majority would allow a report of direct observations or investigations to be admitted against D at least where the maker of the report is produced in court and is subject to cross-examination. (Example: If the government chemist above were produced as a witness, most courts would admit his report concluding that the substance taken from D was heroin.)

D. Other issues: Other issues arise in both a civil and criminal context: [270 - 273]

1. Evaluations: Subsection (C) refers to the "factual findings" in investigative reports. But so long as an investigative report includes factual findings, other "evaluative" parts of the report - opinions, evaluations and conclusions - may also be admitted. [Beech Aircraft Corp. v. Rainey] (Example: The government, after investigating the crash of a Navy plane, produces a report containing numerous factual findings. The report then says that "the most probable cause of the accident was pilot error." This statement may be admitted, even though it is an "opinion" or "conclusion". Beech Aircraft.) [270 - 271]

2. Multiple hearsay: A government report must be carefully scrutinized for multiple hearsay problems. [272 - 273]

a. Report by one government agent to another: If government employee A tells facts to employee B, who writes them up into a government report, A's statements will be admissible if A had a duty to give the report to B. (Example: Officer Jones witnesses a car accident, and later says to Officer Smith, "I saw the green Plymouth run a red light and cause the accident." Smith includes this statement in a report on the accident. The entire report, including Jones' quoted statement, will be admissible under 803(8)(B), because Jones had a duty to furnish the information to Smith, and Smith's report was otherwise covered as a "report of matters observed.")

b. Statement by one without duty to talk: But if information is supplied by one who does not work for the government and does not have a duty to give the report, the resulting written report may not include the quoted statement, unless the quoted statement independently falls within some exception. (Example: Bystander tells Officer Jones, "I saw the blue car jump the light and cause the accident." Jones' report will be generally admissible as an investigative report under subsection (C), but Bystander's statement will have to be removed, because he did not observe the accident pursuant to any duty, or have any duty to make a report.)

3. Trustworthiness: If the "sources of information or other circumstances indicate lack of trustworthiness," the judge can keep the report out of evidence. This is probably the case with respect to reports falling under any of the three subsections. (Example: Evidence that the public official who prepared a report had been bribed, or was motivated by ulterior motives, would cause it to be excluded for lack of trustworthiness.) [273]

VII. MISCELLANEOUS "AVAILABILITY IMMATERIAL" EXCEPTIONS

A. Learned writings and commercial publications: A learned writing (e.g., a scientific treatise or article) may be admitted for the truth of the matter asserted, under FRE 803(18). (The common law allowed such learned works to be used only for impeachment of the other side's expert witness.) [273 - 276]

1. Use on direct: The application may come in as part of a party's direct case, if a favorable expert testifies that the treatise is authoritative.

2. Cross-examination: The publication can be used as part of the cross-examination of the other side's expert, even if the expert refuses to admit that the publication is authoritative. (But the cross-examiner must establish the authoritativeness of the publication by some other means, such as another witness.)

3. Expert must be on the stand: Whether it is introduced as part of the direct or cross-examination, the publication may only be introduced if there is an expert on the stand who can help the jury interpret its meaning.

4. Commercial publications: The Federal Rules recognize a similar exception for commercial publications that are commonly relied upon by business people. See FRE 803(17), allowing admission of "market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations."

B. Ancient documents: [[276 - 277]

1. Common law: The common law makes it easy to admit "ancient documents." A document will be presumed to be authentic if it is: (1) at least 30 years old; (2) unsuspicious in appearance; and (3) shown to have come from a place of custody natural for such a writing. However, in most courts this is merely a rule of authentication, not an exception to the hearsay rule, so the statements contained in it may not be shown for their truth. But some courts do treat it as a hearsay exception.

a. Ancient deeds: All courts allow statements contained in an ancient deed to be shown for their truth. Thus a statement in a will, "O purchased this property from X in 1872," could everywhere be used to show that O really did purchase the property in 1872, if the above three requirements are satisfied.

2. Federal Rules: The Federal Rules explicitly make the ancient documents rule a hearsay exception. The document need merely have been in existence 20 years (not the 30 required at common law). The proponent must prove that the document is "authentic" (i.e., that it is at least 20 years old and meets the "no suspicion" and "likely place of custody" requirements). See FRE 901(b)(8).

a. Newer title documents: A separate federal hearsay exception exists for less-than-20-year-old documents that relate to title to property. See FRE 803(15). (Example: A 10-year-old deed recites, "O sold this property to X in 1973." This will be admissible to prove that O did indeed sell the property to X in 1972.)

C. Reputation: There is a hearsay exception for several types of reputation evidence: [277 - 278]

1. Birth, marriage, etc.: There is an exception for a person's reputation within his family regarding some aspect of birth, marriage, or relationship. (Example: Reputation within the family that A is B's son, offered to prove that A really is B's son.) FRE 803(19) extends this to cover a reputation among one's business colleagues or one's reputation in a community, concerning some fact of the person's personal or family history.

2. General historical facts: There is an exception for proof of facts of general history and for proof of land boundaries. See FRE 803(20). (Example: To prove that there was an earthquake in San Francisco in 1906, a party could call a historian who would testify that in Northern California, it is commonly believed or remembered that there was an earthquake in that year.)

3. Reputation for character: There is an exception for proof that a person had a particular reputation for character. (Example: W may testify that P has a reputation in his hometown for being a liar, if offered by D to prove that P really is a liar and that therefore D did not commit libel by calling him one.)

D. Miscellaneous: [278 - 281]

1. Vital statistics, marriage certificates: Statements of fact contained in public records have an exception. (Examples: A report that X died on a certain day, offered to prove that fact. A statement in a marriage certificate that X married Y on a certain day, offered to prove that fact.)

2. Absence of public record: There is an exception for the fact that a certain record is absent from the public records, offered to prove that fact. (Example: Testimony that a search of the IRS's records does not disclose D's 1985 tax return, offered to prove that D did not file a return that year.)

3. Previous felony conviction: Proof that X is guilty of a particular crime may be made by showing that X was convicted of that crime. (But the fact that X was convicted of a misdemeanor may not be used in a subsequent case to prove that he did the act charged.)

VIII. UNAVAILABILITY REQUIRED - GENERALLY

A. Four exceptions: There are four main hearsay exceptions that require that the declarant be unavailable to testify at trial: [281]

1. Testimony given in a prior proceeding;

2. Statements made while the declarant believed his death was impending so-called "dying declarations");

3. Statements which were against the declarant's interest when made; and

4. Statements concerning either the declarant's or his relatives' personal or family history (so-called statements of "pedigree").

B. Meaning of "unavailable": [282 - 283

1. Federal: FRE 804(a) defines five situations in which the declarant will be deemed to be unavailable:

a. He is privileged against testifying about the subject matter of his out-of-court statement;

b. He refuses to testify despite a court order;

c. He testifies that he cannot remember the statement's subject matter;

d. He cannot be present to testify because of death, or physical or mental illness; or

e. He is absent, and the proponent of his statement has been unable to procure his attendance (or his deposition) by process or other reasonable means (e.g., persuasion).

f. Proponent's fault: But none of the above reasons will make the declarant "unavailable" if his unavailability is due to "procurement or wrongdoing" by the proponent.

2. States follow: Most states recognize the first four exceptions. But with respect to the fifth, absence from the jurisdiction, most courts automatically treat the declarant as being "unavailable" if he is outside the jurisdiction - they don't require the proponent to make non-subpoena efforts (e.g., persuasion or the taking of a deposition) to procure his attendance or testimony.

3. Constitutional problems: If the hearsay exception is one traditionally requiring unavailability, a criminal defendant's Sixth Amendment Confrontation Clause rights may be violated if the court admits the out-of-court statement without a showing that the declarant really was unavailable. For this purpose, a witness will be deemed sufficiently "unavailable" (and the use of his out-of-court declaration will not violate his Sixth Amendment right) if the state shows:

a. that the witness is beyond that state's own process; and

b. that either the government made a good faith effort to get the witness to attend by means other than process, or such efforts would have been very unlikely to succeed.

IX. FORMER TESTIMONY

A. General rule: There is a hearsay exception for former testimony - that is, testimony given in an earlier proceeding - if the witness is unavailable for trial. FRE 804(b)(1), which basically follows the common law, imposes these requirements: [283]

1. Hearing or deposition: The testimony was given either at a hearing in the same or earlier action, or in a deposition in the same or different proceeding;

2. Party present: The party against whom the testimony is now offered was present at the earlier testimony (or, in a civil case, that party's "predecessor in interest" was present); and

3. Opportunity to cross-examine: The party against whom the testimony is offered had the opportunity and similar motive to develop the testimony. Usually, this opportunity will have been the chance to cross-examine, but it may have been a chance to expand the testimony by direct or redirect examination.

Example 1: P sues D for negligence. At a deposition in which D is present, P asks questions to X, a witness to the accident. Because D has had the chance to cross-examine X during the deposition, X's deposition answers may be introduced against D in the eventual suit, if X is unavailable to testify at trial (even if D did not use his right to cross-examine X at the deposition).

Example 2: W gives testimony unfavorable to D before a grand jury while D is not present. At D's eventual criminal trial, this testimony cannot be introduced against D even if W is now unavailable, because D had no opportunity to cross-examine (but some courts might apply the residual or "catch all" exception, discussed below).

B. Meaning of "hearing" and "proceeding": "Hearing" and "proceeding" seem to include any official inquiry in which sworn testimony is taken. So a prior trial, a preliminary hearing in a criminal case, a grand jury hearing, and a deposition, all qualify. [284 - 285]

1. Not covered: But affidavits, and statements (written or oral) made to law enforcement officials during investigations, aren't covered because they're not truly hearings or proceedings.

C. Identity of issues: There must be enough overlap between the issues existing at the time of the prior hearing or deposition, and the issues existing at the present trial, that the above opportunity for cross-examination was a meaningful substitute for cross-examination in the present case. At common law, there must be "substantial identity" between issues; under the Federal Rules, the opponent must have had a "similar motive" in the earlier situation. [286 - 291]

1. Different contexts: This requirement can be satisfied even though the earlier and present proceedings are quite different contexts. (Examples: Testimony given at a preliminary hearing can be used at a later criminal trial, even though the issues are not absolutely "identical" in the two situations. Similarly, testimony given at a criminal trial can be admitted at a later civil proceeding, even though the issues and burdens of proof are not identical.)

D. Identity of parties: The proponent of the former testimony need not have been a party to the taking of the former testimony. Only the opponent must have been present. [291 - 294]

1. Similar party in interest: Furthermore, even if the opponent was not present, under the Federal Rule the testimony can be used so long as the present opponent's "predecessor in interest" was present, if the case is a civil case. This probably means merely that a person with a very similar motive must have been present. (But in criminal cases, there is no "predecessor in interest" provision. Thus a statement may not be offered against a criminal defendant who was not present, even if another person - e.g., a co-defendant - was present at the prior proceeding and had a highly similar motive to cross-examine.)

X. DYING DECLARATIONS

A. General rule: There is an exception for "dying declarations." The common law version is narrow: a declarant's statement, while believing that his death is imminent, concerning the cause or circumstances of his impending death, is admissible in a subsequent homicide prosecution concerning that death. FRE 804(b)(2) loosens several of these restrictions. [295]

B. Requirements in detail: [295 - 296]

1. Awareness of imminent death: The declarant must, at the time he made his statement, have been aware of his impending death. It is not enough that he knows he is seriously ill or wounded, or that he will probably die - at common law he must have lost all hope of recovery. (Under the Federal Rule, he must "believe ... that his death [is] imminent.")

2. Actual death: At common law, the declarant must in fact be dead by the time the evidence is offered. But this is not required under the Federal Rule (though the declarant must of course be unavailable, since this is one of the "unavailability required" exceptions).

3. Homicide: At common law, the declaration may be used only in a homicide case. Thus it may not be used in civil cases, or in criminal cases not charging homicide (e.g., a case in which D is charged with rape alone, even though V died after the rape). Under the Federal Rules, dying declarations are usable in civil suits and homicide cases, but not in non-homicide criminal cases.

4. Declarant is victim: At common law, declaration may be offered only in a trial for the killing of the declarant, not the killing of someone else. (Example: D has probably murdered both H and W. He is prosecuted for the murder of H only. At common law, the prosecution cannot introduce W's dying declaration, "D did this to H and me.") The Federal Rules drop this requirement.

5. Relating to circumstances of killing: Both at common law and under the Federal Rules, the declaration must relate to the causes or circumstances of the killing. (Example: Declarant, while dying, says, "X and I have been enemies for years." The exception probably does not apply, since it does not relate directly to the causes or circumstances of declarant's death. But, "X has been stalking me for two days," would satisfy this test.)

6. For accused: The statement may be admitted on behalf of the accused (though usually, it is admitted against him.)

XI. DECLARATIONS AGAINST INTEREST

A. Generally: There is a hearsay exception for declarations which, at the time they are made, are so against the declarant's interest that it is unlikely that they would have been made if they were not true. [298]

1. Common law: At common law, there are three main requirements for the exception:

a. The declaration must have been against the declarant's pecuniary or proprietary interest (not his penal interest) when made;

b. The declarant must now be unavailable; and

c. The declarant must have had first-hand knowledge of the facts asserted in the declaration.

2. Federal Rule: FRE 804(b)(3) follows this approach, except that declarations against penal interest are also admissible (except uncorroborated statements exculpating the accused).

B. Meaning of "against interest": [299 - 306]

1. When made: The declaration must have been made against the declarant's interest at the time it was made. The fact that later developments have turned what was an innocent-seeming statement into one that now harms some interest of the declarant is not enough to satisfy this requirement.

2. Pecuniary interest: At common law, only statements against the declarant's pecuniary or proprietary interest qualify.

a. Property: Thus, a statement limiting the declarant's property rights, or a creditor's statement that a debt has been paid, will qualify. Modern cases also allow a statement subjecting the declarant to possible tort liability to qualify.

3. Penal interest:

a. Common law: At common law, statements against the declarant's penal interest - that is, statements tending to subject him to criminal liability - do not qualify. (This is due mainly to fears that people will falsely confess, or falsely claim to have heard others confess, in order to exculpate the defendant.)

b. Federal approach: The Federal Rules treat statements against penal interest as qualifying. However, a statement against penal interest that is offered to exculpate the accused is not admissible unless "corroborating circumstances clearly indicate the trustworthiness of the statement." (Example: D is charged with burglary. W offers to testify that while in jail, he heard X, another inmate, confess to having done this burglary alone. Because both W and X are felons whose word is somewhat doubtful, this testimony will be allowed only if there is independent evidence that X may well have done the burglary - e.g., he was out of prison at the time, and is known to have performed other, similar burglaries.)

4. Collateral statements: If statement includes a disserving part but also a self-serving part, the court will try to excise the self-serving part. If the statement has both a disserving and a neutral part, the court will probably let in the whole statement. (Example: "It was Joe and I that pulled off that bank job," will be admissible against Joe, even though the part of the statement referring to Joe was not directly against the declarant's interest.) [304 - 305]

a. Neutral or self-serving statements not allowed as collateral: But a neutral or self-serving declaration won't be allowed in merely because it's part of the same broader statement that includes against-interest declarations - each individual declaration must be scrutinized to see if it's against interest. (Example: W, in custody for a particular crime, says, "I participated in a small way." W then goes on to describe D's participation in detail, and says that D was the ringleader. The description of D's participation won't be allowed in as against-interest, because that description isn't specifically against W's interest. [Williamson v. U.S.])

C. Constitutional issues: [306 - 307]

1. Use by prosecution: When the prosecution tries to introduce a third party's declaration to inculpate the accused, the Sixth Amendment Confrontation Clause rights of the accused may help him keep the statement out. For instance, a statement exposing the declarant to criminal liability, given while the declarant is in police custody, will almost always be excluded, because of the declarant's motive to try to gain favor by inculpating the accused and minimizing his own guilt. Lee v. Illinois.

2. Use by accused: Where it is the accused who seeks to exculpate himself by use of third person's declaration against interest, the accused may be able to rely on the Due Process Clause and the Sixth Amendment right to compulsory process to get the statement into evidence. (Example: D tries to show that X has confessed to the crime that D is charged with. If there are some solid facts corroborating X's confession, and X is unavailable to testify, D probably has a due process or compulsory process right to have X's out-of-court confession introduced.)

XII. STATEMENTS OF PEDIGREE

A. General rule: There is a hearsay exception for statements of "pedigree," i.e., statements about a person's birth, death, marriage, genealogy, or other fact of personal or family history. Here are the requirements at common law and under the Federal Rules: [307 - 309

1. Declarant unavailable: The declarant must be unavailable to testify;

2. Person or relative: At common law, the declarant must be either the person whose history the statement concerns, or a relative of the person whom the statement concerns. Under FRE 804(b)(4), it will also suffice if the declarant is so "intimately associated" with the family of the person the statement concerns that it is "likely [that the declarant would] have accurate information concerning the matter declared." (Example: O is the servant for X's family during X's entire lifetime. If O tells W, "X is the illegitimate son of Y," under the federal but not the common-law approach, W will be permitted to repeat the statement in court, even though O was not a member of the family.)

3. Before controversy: The statement must have been made before the present controversy arose, under the common-law approach. (But this requirement is completely dropped by the Federal Rules.)

4. Not motive to falsify: The declarant must not have had any apparent motive to falsify.

XIII. PRIOR STATEMENTS OF AVAILABLE WITNESS

A. Common-law rules: At common law, it is very difficult to make use of prior statements by a person who is a witness at the current trial: [309 - 310]

1. Prior inconsistent statement: The trial witness' prior inconsistent statement is inadmissible hearsay at common law. (However, the prior inconsistent statement may used to impeach the witness at the present trial.)

2. Prior consistent statement: Similarly, the trial witness' prior consistent statement is not substantively admissible at common law. (But if the witness is accused of having recently fabricated his trial testimony, or of having been improperly influenced or motivated, the prior consistent statement may be used for the non-substantive purpose of rehabilitating his credibility.)

3. Prior identification: Proof that the trial witness has previously made an eyewitness identification is technically hearsay, but many common-law courts allow it as substantive evidence if it seems to have probative value. (Example: D is charged with robbing V. Many common-law courts would allow trial testimony by W, a police officer, that shortly after the episode, V pointed to D in a police lineup and said, "That's the one who robbed me.")

B. Federal Rule on prior inconsistent statements: [311 - 312]

1. General rule: FRE 801(d)(1) makes certain prior inconsistent statements of the trial witness substantively admissible (i.e., not hearsay). If the defendant testifies at trial and is subject to cross-examination concerning his prior statement, that statement is admissible if it is "inconsistent with the declarant's [trial] testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition."

a. Proceeding: In other words, only statements given under oath as part of a formal proceeding (generally a trial, preliminary hearing, or deposition) may be substantively introduced if the witness' trial testimony differs. An informal oral statement previously made by the witness will not be substantively admissible. (Example: In an accident case, W testifies at trial on behalf of P, "D went through the red light." D cannot introduce for substantive purposes a previous statement by W to her husband H, "The light was green when D went through it." But if W had made that same statement during the course of a deposition under oath, or during testimony at a prior trial, it could be substantively admitted in the present trial.)

2. Cross-examination not required: This Federal Rule allows the prior inconsistent statement into evidence even when there was no cross-examination, or even any opportunity for cross-examination. (Example: W testifies in favor of D at a criminal trial. The prosecution may substantively introduce W's prior inconsistent grand jury testimony, even though D and his lawyer were not present and had no opportunity to cross-examine W at that grand jury session - the theory is that D has the opportunity to cross-examine W now.)

C. Federal Rule on prior consistent statements: If the prior statement is consistent with the witness' trial testimony, it is substantively admissible, but only if it is "offered to rebut an express or implied charge against [the witness] of recent fabrication or improper influence or motive." FRE 801(d)(1)(B). (Example: W, a witness to a robbery, testifies at trial that the robber was not D. The prosecutor asserts in cross-examination that D has recently intimidated W and gotten him to change his story. D's lawyer may substantively introduce a statement made long ago by W at a grand jury, in which W told the same story.) [318]

D. Federal Rule on prior identifications: A statement of "identification of a person made after perceiving him" is substantively admissible, if the declarant testifies at the trial and is available for cross-examination. FRE 801(d)(1)(C). [318 - 320]

1. No oath or proceeding: Unlike a prior inconsistent statement, a statement of identification is substantively admissible under this provision even though it was not made under oath or at a formal proceeding. (Example: V, a robbery victim, is walking down the street the day after the robbery when she spots D. She says to H, who is with her, "That's the robber." H will be permitted to repeat this statement at D's trial, even though W's statement was not made under oath or at a proceeding.)

XIV. RESIDUAL ("CATCH ALL") EXCEPTION

A. Federal Rule generally: Modern courts now tend to admit hearsay evidence that does not fall within any well-defined exclusion, if it is highly reliable and badly needed in the particular case. The Federal Rules codify this residual or "catch all" exception in FRE 803(24) and 804(b)(5) (depending on whether the witness is available). These sections impose five requirements: [320 - 323]

1. Circumstantial guarantees of trustworthiness: The statement must have "circumstantial guarantees of trustworthiness" that are equivalent to those inherent in the other, more specific, federal hearsay exceptions. (Factors the courts consider are summarized below.)

2. Material fact: The statement must be offered as evidence of a material fact.

3. More probative: The statement must be "more probative" on the point for which it is offered than any other evidence which is available through reasonable efforts. (Example: If the declarant can give equally probative live testimony, or if there is some other witness who can give the same evidence as that contained in the out-of-court declaration, the catch all exception does not apply.)

4. Interests of justice: Use of the evidence must be consistent with "the general purposes of [the Federal] Rules and the interests of justice."

5. Notice: The proponent of the evidence must give notice of his intention to offer the statement "sufficiently in advance of the trial or hearing to provide ... a fair opportunity to prepare to meet it." The notice must include the particulars of the statement, including the declarant's name and address. (But federal courts often disregard the precise language of this requirement, and allow use of evidence without a pre-trial notice if the need for the evidence does not become apparent until the trial starts; the court will usually give a continuance to the opponent in order to let him prepare to meet the evidence.)

Example 1: W has given detailed, credible, and important grand jury testimony, and is not available to testify at trial. The residual exception will probably apply. (The "former testimony" exception of 804(b)(1) does not apply to this testimony, because the opponent did not have the opportunity to cross-examine.)

Example 2: X took contemporaneous hand-written notes of an event he witnessed, but is not available to testify at trial. If the notes seem to be reliable, and there is no equally probative or better testimony available, the notes will be admitted under the residual exception. (The document cannot constitute Past Recollection Recorded, under FRE 803(5), because the author is by hypothesis not available as a witness to authenticate it.)

Example 3: W, D's building superintendent, orally tells P not to use a particular safety measure because it will inconvenience W's pets. P is injured. W is not available as a trial witness, and P has no other way to rebut D's claim that P was contributorily negligent. Assuming that there is some corroboration of W's alleged statement (e.g., some independent proof that the safety measure would indeed have inconvenienced W's pets), the court will probably apply the residual exception.

B. Circumstantial guarantees of trustworthiness: In determining whether the statement has "equivalent circumstantial guarantees of trustworthiness" (requirement 1 above), the court is likely to consider these factors, among others: [323 - 325]

a. Oath: Whether the declaration was under oath. (If so, it is more reliable.)

b. Time lapse: How much time elapsed between the event and the statement. (The longer the time lapse, the less reliable the statement.)

c. Motive: The declarant's motive for telling the truth. (The stronger the motive to tell the truth, the more reliable.) (Example: D1, who is been arrested on a criminal charge, tells a grand jury that the crime was committed by D2, and that D1 was just a bystander. Because D1 had a strong motive to exculpate himself by incriminating another, his statement will probably be viewed as unreliable.)

d. First-hand knowledge: Whether the declarant had first-hand knowledge of what he said. (If he merely repeated what someone else said, this makes the statement less reliable.)

e. Written vs. oral: Whether the statement is written or oral. (Written statements, whether written by the declarant or transcribed stenographically as in a confession to police, are presumed to be more reliable than oral statements.)

f. Corroboration by other evidence: In some courts, the extent to which the declaration is corroborated by other evidence in the case. But federal courts don't allow other evidence to furnish the corroboration. [Idaho v. Wright] (Example: Grand jury testimony by D1 implicating D2 matches detailed physical evidence inculpating D2. Some state courts would treat this corroboration by other evidence as making D1's statements more reliable. But the federal courts wouldn't.)

g. Recanted statement: Whether the declarant has subsequently recanted his statement. (A statement that has subsequently been recanted is less reliable.)

C. "Near miss": When a particular fact pattern comes very close to matching the requirements for a recognized hearsay exception, but just misses, a few courts refuse to apply the residual exception. But most courts are willing to apply the residual exception in this situation, if the other requirements are met. [325 - 326]

D. Grand jury testimony: The most common use of the residual exception is to allow grand jury testimony to be used against a criminal defendant when the testifier isn't available to testify at trial. [327 - 330]

Chapter 6 
CONFRONTATION AND COMPULSORY PROCESS

I. INTRODUCTION

A. Confrontation Clause: The Confrontation Clause of the Sixth Amendment guarantees a criminal defendant the right "to be confronted with the witnesses against him." This Clause may give a criminal defendant the right to keep out of evidence out-of-court declarations that are unreliable, where the declarant is not available to be cross-examined in court. [365]

B. Compulsory process: The Sixth Amendment's Compulsory Process Clause gives the criminal defendant the right "to have compulsory process for obtaining Witnesses in his favor." This Clause may allow the defendant to gain admission of otherwise-inadmissible evidence. For instance, this Clause may give the defendant the right to introduce an out-of-court declaration (e.g., a confession to the crime by someone else) that would otherwise be excluded under traditional hearsay principles. [366]

II. CONFRONTATION CLAUSE

A. General principles: [366 - 375]

1. Preference for live testimony: The Confrontation Clause reflects a preference for live testimony in lieu of out-of-court declarations wherever possible. Therefore, if the declarant is available to testify, but the prosecution instead offers his out-of-court declaration, the trial judge is more likely to find a confrontation violation than where the declarant is not available. For instance, the declarant's former testimony may normally not be admitted if the declarant is available. (But other types of out-of-court declarations, such as statements by co-conspirators made during the course of the conspiracy, are admissible even though the declarant is available, on the theory that the defendant has the right to subpoena a declarant to cross-examine him about the statement.)

2. Indicia of reliability: Whether or not the declarant is unavailable, his out-of-court declaration will not be allowed into evidence unless it contains "indicia of reliability."

a. "Firmly rooted exception": However, if the out-of-court declaration is sought to be introduced under a "firmly rooted hearsay exception," this will by itself be enough to establish the required reliability. Therefore, the court will not look at the facts surrounding the particular declaration in question, and will allow the declaration even if there is reason to believe that it may be unreliable in this particular case. (Example: While A and B are planning a burglary, A tries to recruit C by saying, "B's in this with me." At B's subsequent trial on burglary charges, this statement may be admitted against him because it falls within the well-established hearsay exception for co-conspirators' statements; this is true even though there may be evidence in this particular case that A was falsely seeking to use the name of B, a well known local mobster, as a recruitment device.)

b. Particularized facts: If the out-of-court statement does not fall within a "firmly rooted hearsay exception," the prosecution must show that the particularized facts surrounding it demonstrate that it is probably reliable. One important factor in this determination is whether the defendant has at some stage gotten the right to cross-examine the declarant about the statement. (Example: D1 is arrested for robbery. While in custody, he gives the police a statement implicating D2. At D2's trial, D1 refuses to testify on self-incrimination grounds. D1's statement will not be allowed against D2, because it is not within a firmly rooted, narrow, hearsay exception - the "declaration against interest" exception is too broad - and the particular facts of this case do not establish its reliability, since D1 had a strong motive to curry favor with the police by helping them catch and convict D2. Lee v. Illinois.)

i. Can't use corroborating evidence: In deciding whether there are "particular guarantees of trustworthiness" for the out-of-court statement, only the facts surrounding the particular statement, not other evidence that corroborates the statement's truth, may be considered. (Example: W, a child, says she was sexually abused. Evidence that W had no motive to lie may be considered. But physical evidence showing that abuse took place, thus corroborating the truth of W's statement, may not be considered in determining whether the statement had "particular guarantees of trustworthiness." Idaho v. Wright.)

3. Right to confront testifying witnesses: In addition to hearsay situations, the Confrontation Clause may also give the defendant a right to cross-examine a testifying witness, even where the usual rules of evidence would prohibit or limit such examination. (Example: A state rape shield statute prohibits the defendant from asking the victim any questions whatsoever about any prior sexual act. If this were interpreted to prevent D from demonstrating consent by showing through the cross-examination of V that V and D had had sex together on numerous prior occasions, D's Confrontation Clause rights would be violated.)

a. Right to be face-to-face with W: Also, D's Confrontation Clause right generally gives him a right to be face-to-face with the witness against him. (Example: In child-abuse cases, normally the state may not put a screen between the witness stand and D, or otherwise prevent the witness from seeing D, unless there is evidence that this particular witness needs special protection. Coy v. Iowa.)

B. Specific contexts: [375 - 379]

1. W present and testifying: If W is present at trial, testifies, and is available for cross-examination, the only time D's Confrontation Clause rights are likely to be violated is if W denies any recollection of the underlying event, and the court believes that W is lying.

2. Co-conspirator's statement: Where the out-of-court declaration is a statement made by a co-conspirator during the course of the conspiracy and in furtherance of it, D is very unlikely to succeed with a confrontation claim. This is true regardless of whether the co-conspirator is available to testify. (Nor will the court look at the reliability of the particular statement, since it falls within the general firmly rooted hearsay exception for co-conspirator's statements.) U.S. v. Inadi.

3. "Declarant's unavailability immaterial" exceptions: Where hearsay is allowed under one of the traditional "declarant's availability immaterial" exceptions (excited utterances, statements of existing mental or physical condition, recorded recollections, business records, etc.), D's Confrontation Clause argument is unlikely to succeed. Even if W is available at trial to testify, the prosecution need not produce him, so long as it cooperates with D's ability to subpoena W. Nor will the court look into the particularized facts surrounding the declaration, since by hypothesis it falls within a firmly rooted hearsay exception.

4. Declarant unavailable: As to those hearsay exceptions requiring the unavailability of the declarant, D will also generally find it hard to keep the testimony out on confrontation grounds:

a. Former testimony: Former testimony given at a prior proceeding or deposition under oath, where D had an opportunity to cross-examine W, can be admitted at D's trial without confrontation problems, if W is now unavailable. (But if W is available, the Confrontation Clause requires that he be produced, even if the local evidence rule deviates from the traditional approach by not requiring that the declarant be unavailable.)

b. Dying declaration: Statements meeting the traditional dying declaration requirements are almost certainly admissible without any Confrontation Clause problems.

c. Statement against interest: A statement against interest is the defendant's best opportunity to invoke the Confrontation Clause successfully. If his co-defendant has given a confession implicating D, the confession will be allowed against D only if the particular facts surrounding it give a special assurance of reliability (something that will rarely be the case, because of the co-defendant's motive to curry favor with the authorities). Lee v. Illinois. Furthermore, even if the co-defendant's statement has indicia of reliability, the prosecution must probably produce him at trial if he is available.

III. COMPULSORY PROCESS

A. Generally: The Compulsory Process Clause gives the defendant the right to obtain and present all evidence helpful to his defense. [379 - 380]

B. State rules restricting evidence: This means that a state evidence rule that restricts the defendant's ability to present exculpatory evidence may run afoul of his Compulsory Process rights. [380 - 381]

1. Ban on accomplice's testimony: For instance, a statute providing that if A and B are charged as co-participants, A may not testify in B's defense, violates B's compulsory process rights.

2. Restrictive hearsay rule: Similarly, a state hearsay rule that prevents D from showing that someone else has made an out-of-court declaration confessing to the crime, may violate D's compulsory process rights. However, this will only happen if D convinces the court that the third person's alleged out-of-court confession is somewhat corroborated by surrounding circumstances. Thus if D offers X's out-of-court confession, but the prosecution shows that X was in jail at the time of the crime, D has no compulsory process right to present that confession.

C. Equality principle: State rules that consistently favor the prosecution are especially likely to violate the Compulsory Process Clause. (Example: A state rule banning one accomplice from testifying on behalf of another, but not banning one accomplice from testifying against the other, favors the prosecution consistently, and therefore, violates the Compulsory Process Clause.) [381 - 382]

Chapter 7 
PRIVILEGES

I. PRIVILEGES GENERALLY

A. Not constitutionally based: Most privileges are not constitutionally based. (The privilege against self-incrimination is the only exception.) Therefore, each state is free to establish whatever privileges it wishes and to define the contours of those privileges as it wishes. [387 - 389]

1. Federal: There were a number of specific proposed federal rules of privilege. But these were never enacted. Instead, FRE 501 is the only Federal Rule dealing with privileges. It provides that privileges "shall be governed by the principles of the common law as they may be interpreted by the [federal] courts in the light of reason and experience." That is, normally federal judges will decide what privileges to recognize based on prior federal case law and the court's own judgment.

a. Diversity: But in diversity cases, the existence and scope of a privilege will be decided by the law of the state whose substantive law is being followed.

2. States: The states vary greatly on what privileges they recognize. All recognize the husband-wife and attorney-client privileges, most by statute. All recognize a privilege for certain government information. Nearly all recognize some kind of physician-patient and clergyman-penitent privileges. Three other privileges are recognized only in a minority of states: journalist-source, parent-child, and accountant-client.

B. Proceedings where applicable: If a privilege not to disclose certain information exists, that privilege applies regardless of the proceeding. That is, it will apply to protect the holder against disclosure in a trial, administrative hearing, deposition, or any other proceeding. [388]

C. Who may assert: The privilege belongs to the person whose interest or relationship is intended to be fostered by that privilege. Therefore, he is the only one who may assert it. (Examples: The client is the one protected by the lawyer-client privilege, so it may be asserted only by him, or on his behalf, not by the lawyer on the lawyer's behalf. Similarly, the physician-patient privilege is meant to protect only the patient, so only he, not the doctor, may assert it.) [388]

D. Third person learns: Most privileges protect communications between two parties to a specified relationship. If a third party somehow learns of the conversation, the privilege may be found to have been waived. [388 - 389

1. Older, strict view: The traditional view is very strict: if a third party somehow learns of the conversation, even if the original parties to it had no reason to anticipate this, the privilege will be held to be lost. (Example: Telephone operator eavesdrops on a phone conversation between lawyer and client; the privilege is held to be lost, and the operator may testify as to what she heard.)

2. Modern view: But modern courts usually hold that the communication is protected even if intercepted, as long as the interception was not reasonably to be anticipated. (So the prior example would be decided differently today.) But if the party protected should reasonably have anticipated the interception, he will not be protected. (Example: Patient or client discloses a confidence to his doctor or lawyer in a crowded elevator; the risk of it being overheard is so great that if it is overheard, the privilege will be held waived.)

II. THE ATTORNEY-CLIENT PRIVILEGE

A. Generally: The privilege is basically that a client has right not to disclose (and the right to prevent his lawyer from disclosing) any confidential communication between the two of them relating to the professional relationship. The key elements are: [390 - 392]

1. Client: The "client" can be a corporation as well as an individual.

2. Belongs to client: The privilege belongs to the client, not to the lawyer or any third persons. The lawyer may assert it, but only if he is acting on behalf of the client in doing so.

3. Professional relationship: The privilege applies only to communications made for the purpose of facilitating the rendition of professional legal services.

4. Confidential: The privilege applies only to communications which are intended to be "confidential."

5. Fact of employment or client's identity: The fact that the lawyer-client relationship exists, and the identity of the client, are normally not privileged. Only the substance of the confidences exchanged between them is generally privileged (though there are a couple of exceptions).

6. Physical evidence: Normally, the privilege does not permit the lawyer to conceal physical evidence or documents given to him by the client; the lawyer may not only have to turn over the physical evidence but describe how and where he got it.

7. Crime or fraud exception: The privilege does not apply where the confidence relates to the commission of a future crime or fraud.

B. Professional relationship: The privilege applies only in the context of a professional lawyer-client relationship. [393 - 394]

1. No retainer: The required relationship can exist even though the client does not pay a fee. (Example: Client receives a free initial consultation; the privilege applies even though, at the end of the consultation, either lawyer or client decides that the lawyer will not handle the case.)

2. Non-legal advice: But the mere fact that the person giving the advice is a lawyer is not enough - the relationship must involve the giving of legal advice. Thus, if the lawyer gives business advice, friendly advice, political advice, etc., the privilege does not apply.

3. Reasonable belief: So long as the client reasonably believes that the person he is talking to is a lawyer, the privilege applies even though the other person is in fact not a lawyer. Similarly, the privilege applies if the person is a lawyer who is not, and is known to the client not to be, admitted to practice in the state where the advice is given.

C. Confidential communications: Only "confidential" communications are protected. [394 - 397]

1. Client-to-lawyer: Disclosures by the client to the lawyer are protected if they are intended to be confidential.

a. Lawyer's observation: However, if the lawyer makes an observation that third parties could also have made, this will not be a confidential communication. (Example: Lawyer observes scratch marks on Client's face, in a meeting that takes place right after Client's wife has been found stabbed to death. Since anyone could have made this observation, it is not privileged, and Lawyer can be forced to testify at Client's trial about the scratches.)

2. Lawyer-to-client statements: The privilege also applies to statements made by the lawyer to the client.

3. Information involving third parties:

a. Representative of lawyer: If a third party is assisting the lawyer, he is treated as being a representative of the lawyer and communications involving him are treated the same way as if he were himself a lawyer. (Example: Lawyer retains Private Detective to help investigate the case; statements made by Client to Detective, Lawyer to Detective, Detective to Client, Detective to Lawyer, are all privileged.)

b. Not assisting lawyer: But if a third person is not assisting the lawyer, there is no privilege for communications between that third person and the lawyer, even if these communications relate to the lawyer's providing of legal services. (Example: Lawyer interviews Witness; statements made by Witness that incriminate Client are not privileged, because Witness is not working on behalf of Lawyer. However, if the only reason Lawyer knew to interview Witness is because Client told him to do so, the privilege might apply to Witness' statements.)

4. Presence of third person: The presence of a third person when the communication takes place, or its later disclosure to such a person, may indicate that the communication was never intended to be "confidential." If so, it will be deemed waived. But if the third party's presence is reasonably helpful to the conference, that presence will not destroy the confidentiality. (Example: Client's friend or relative attends the meeting in order to help supply facts or to cope with language difficulties; this will not cause the privilege to be waived.)

5. Underlying facts: It is only the communication that is privileged, not the underlying fact communicated.

D. Fact of employment; client's identity: Generally, the fact that the attorney has been hired, and the identity of the client, are not privileged. (Example: At a grand jury investigating local cocaine trafficking, L, a well known specialist in defending high-level cocaine importers, may be required to say whether he is representing X, one such importer.) [397 - 398]

1. Exceptions: Some courts have recognized one or both of the following exceptions to this general rule of non-privilege:

a. Anonymous restitution: Some courts allow Lawyer to make anonymous restitution on behalf of Client. (Example: Lawyer sends tax money to the IRS, without disclosing that it comes from Client - the purpose is to give Client a restitution defense if his taxes are ever audited. Some courts will allow Lawyer to refuse the IRS' demand to identify the Client.)

b. "Missing link": Most courts will allow the lawyer to keep the client's identity secret where so much other information is already public that disclosure of the client's identity would have the effect of disclosing a privileged communication, or violating the client's self-incrimination privilege. (Example: X and Y are both suspected of murdering V. L represents X before a grand jury. A court might allow L to refuse to say whether Y is paying L's fee for representing X, on the theory that an affirmative answer might tend to incriminate Y.)

E. Physical evidence: If the client turns over to the lawyer physical evidence, the lawyer may generally not conceal this evidence or refuse to answer questions about whether he has it, on attorney-client privilege grounds. [398 - 402]

1. No ongoing fraud: The most important rule concerning this problem is that the attorney-client privilege does not apply where the lawyer's assistance is sought to enable the client to commit a future crime or fraud. Since all states prohibit the concealment or destruction of evidence in a pending proceeding, a lawyer who helps his client conceal or destroy evidence is a co-conspirator to a new crime, and the lawyer's assistance is thus not privileged. This is especially true where the evidence is contraband, stolen money, or a weapon or other instrument used to commit the crime.

2. Destruction advice: Similarly, the lawyer may not advise his client to destroy the evidence, and if he does so, the giving of that advice is not privileged.

3. Lawyer's choices: The lawyer may, however, simply return the evidence to the client with the advice not to conceal it; if the lawyer does this, he is probably privileged not to disclose the evidence's existence to the other side (usually the prosecution). Alternatively, he may take the evidence for a reasonable time for inspection or testing, and then return it to the client, without disclosing this fact to the other side. (But if the property is stolen, the lawyer must take steps to return it to his rightful owner. Similarly, if the lawyer believes that the client will destroy the evidence, he probably must turn it over to the other side, and is not privileged to keep silent about the evidence's existence.)

4. Evidence of source: If the other side (e.g., the prosecution) learns of particular physical evidence in the lawyer's possession, some courts hold that the lawyer is not privileged to refuse to say how he came into possession of it. (Example: D is charged with murdering and robbing V. From prison, D tells L to inspect D's garbage can; L does so, and finds V's wallet, which he takes with him and puts in his safe. At trial, many courts would require L to testify about how he came into possession of the wallet, since otherwise the prosecution is unfairly impeded in its efforts to tie the wallet to D.)

a. No custody: But if the lawyer merely learns of an item's existence for his client, or inspects it and then gives it back to the client, the lawyer may not be required to say at trial how he learned about the item.

F. Corporations as clients: [402 - 405]

1. Corporations have privilege: A corporation may possess the attorney-client privilege just as an individual may.

2. Who may communicate: Only communications made "on behalf" of the corporation's business are covered. But probably no matter how low level an employee is, if he is really acting in what he reasonably perceives to be the corporation's interests, communications made between him and the corporation's lawyer will be privileged as to the corporation.

3. Must concern employment: The mere fact that one party to the communication is an employee is not sufficient - the communication must relate to the employee's performance of corporate duties. (Example: Driver, who works for Bus Co., happens to see an accident involving one of the company's buses while he is off duty. Statements about the accident by Driver to Bus Co.'s lawyer are not privileged, because they do not relate to anything that happened while Driver was performing his corporate duties.)

4. Reports and routine communications: The communication must be primarily for the purpose of obtaining legal services. Therefore, if the communication is a routine report generated in the ordinary course of the corporation's business, the privilege will not apply merely because the report happened to be received by one of the corporation's attorneys. (Examples: Accident reports, personnel records, and financial documents probably won't be privileged even if circulated to the company's attorneys, because none of these is typically created for the primary purpose of obtaining legal services.)

5. Confidentiality: The requirement of confidentiality means that only those communications that the corporation handles on a "need to know" basis will be privileged.

G. Exceptions: There are several situations where the privilege will be held not to apply even though the usual requirements are met: [405 - 408]

1. Crime or fraud: As noted above, a communication relating to the carrying out of a future crime or wrong is not privileged. (Example: Client says to Lawyer, "If X and I were to rob the First National Bank, and X were then to get caught and give a confession implicating me, could the police use this confession against me?" If the robbery is later committed, the statement may be used against Client, since even though he was seeking legal services, he was doing so with reference to a future crime.)

2. Death of client: In general, the privilege survives the death of the client. But there is a key exception: if the suit is a will contest or other case in which the issue is who receives the deceased client's property, the privilege does not apply. (Example: In will contest, Son may call Lawyer to testify about Lawyer's conversations with Testator, in which Testator said that he wanted to provide for Son in his will.)

3. Attorney-client dispute: The privilege does not apply to a dispute between lawyer and client concerning the services provided by lawyer. (Examples: The privilege does not apply if Lawyer sues Client for a fee, or if Client sues Lawyer for malpractice.)

4. Joint clients: The privilege may be inapplicable to a dispute between multiple clients who were originally on the same side of a transaction.

a. Same lawyer: If two clients retain a single lawyer, and a dispute later breaks out between the two, the privilege does not apply. This is true regardless of whether the other client was privy to the communication in question. (Example: Driver is sued by Passenger for injuries from a car crash. Insurer, who insures Driver, hires Lawyer for the case. Driver makes confidential communications to Lawyer. Later, Driver and Insurer have a dispute about policy limits. In that dispute, Insurer may probably compel Lawyer to disclose otherwise-privileged statements between Driver and Lawyer.)

b. Different lawyers: But if two clients retain separate lawyers, and both lawyers and both clients meet together and discuss common legal issues, the privilege applies even in the event of a later dispute between clients.

H. Work product immunity: Separately from the attorney-client privilege, the doctrine of work product immunity prevents an attorney from being required to disclose certain information that he obtains while preparing for a lawsuit. [408 - 409]

1. Qualified protection: Generally, documents prepared in anticipation of litigation may be discovered by the other side only if the party seeking discovery shows that he has a substantial need for the materials, and that he cannot get the substantial equivalent by other means. This is a "qualified" immunity. Fed. R. Civ. Proc. 26(b)(3). (Example: Client fills out a questionnaire about the facts of his injuries, to help Lawyer prepare the case for trial. Even if the questionnaire is not covered by the attorney-client privilege - perhaps because Client has disclosed it to a journalist - Lawyer can refuse to release it in response to a discovery request by the other side.)

a. Absolute immunity: Documents that show a lawyer's "mental impressions, conclusions, opinions, or legal theories" concerning litigation are probably absolutely privileged, in the sense that no showing of need by the other side will be sufficient to overcome the work product immunity.

III. PHYSICIAN-PATIENT PRIVILEGE

A. Generally: All but 10 states have a statutory physician-patient privilege. These statutes usually apply to: [410]

1. a confidential communication;

2. made to a physician (including psychiatrist);

3. if made for the purpose of obtaining treatment, or diagnosis looking toward treatment.

B. Constitutional underpinning: Some aspects of the privilege may be constitutionally compelled. At least one state court (California) has held that the "confidentiality of the psychotherapeutic session" falls within one of the "zones of privacy" created by the U.S. Constitution (though California has held that its statute, with exceptions for the patient-litigant situation, see below, is constitutional). [410]

C. Relationships covered: All statutes that cover general physician-patient confidences also cover psychotherapist-patient confidences. In fact, virtually all states (even ones that don't cover physician-patient confidences) protect psychotherapist-patient confidences. [412, 416]

1. Psychologist: Nearly all states cover psychologists (not just psychiatrists) within the psychotherapist-patient privilege.

2. Consulted for litigation: Consultations that take place concerning litigation rather than for purposes of treatment or diagnosis are not covered. For instance, examination by or disclosures to a court-appointed physician, or an expert witness consulted so that he can testify at trial, are not covered.

D. Patient-litigant exception: Nearly all statutes have some kind of exception for the "patient-litigant" situation, under which a patient-litigant who puts his medical condition in issue is deemed to have in effect waived the privilege. (Example: Car collision case; P sues D for a broken leg. P's doctor and hospital records, including notations of disclosures made by P to the doctor, will be admissible, because P has placed the nature and extent of his injuries in issue by seeking damages for them.) [412 - 413]

IV. THE PRIVILEGE AGAINST SELF-INCRIMINATION

A. Generally: [416 - 418]

1. Constitutional basis: The privilege derives from the U.S. Constitution. The Fifth Amendment provides that "no person ... shall be compelled in any criminal case to be a witness against himself...."

a. Applicable to states: This provision is binding not only on the federal judicial system but also on the states, by operation of the Fourteenth Amendment's Due Process Clause.

b. Two types: The privilege applies not only to criminal defendants, but also to any other person who is asked to give testimony that may incriminate him (e.g., witnesses in grand jury proceedings, congressional investigations, other people's criminal trials, etc.)

B. Requirements: The privilege applies only when four requirements are met: (1) it is asserted by an individual; (2) the communication sought is testimonial; (3) the communication is compulsory; and (4) the communication might incriminate the witness. [420-23]

1. Individuals: The requirement that the privilege be individual and "personal" means that:

a. Another's privilege: A person may not assert another's privilege. (Example: D is on trial for robbery. The prosecution puts on testimony by X, an unindicted co-conspirator, in which X says that he and D did the robbery together. D may not exclude this testimony by claiming that it violates X's privilege - since it is X who is testifying, only he may assert or waive the privilege.)

b. Business organization: Business organizations do not have the privilege. Thus, neither corporations, partnerships, nor labor unions may claim the privilege. (But a person doing business as a sole proprietorship may assert it - it is not the fact of doing business that removes the privilege, but rather the use of an "artificial organization.")

c. Agent: An employee or other agent of a business organization will usually have to produce and identify the organization's books and records on request, even though those books and records (or the fact that the agent has them) might incriminate him. But he will usually not have to do anything more if this would incriminate him (e.g., he usually will not have to state the whereabouts of corporate records that he does not possess).

2. Testimonial: Only "testimonial" activity is covered. Thus, the suspect may be required to furnish a blood sample, fingerprints, handwriting samples, or even to speak so that his voice may be compared with a previously recorded conversation. Also, a suspect may be required to appear in a lineup for identification.

3. "Compulsory": A communication must be "compulsory." The main importance of this requirement is that if a person voluntarily puts the information in written form, the document is not privileged. (But the writer may have a privilege against producing the document for the government, as discussed below.)

4. Incriminatory: The response must have a tendency to incriminate the person. Thus if there are procedural reasons why no prosecution can take place (e.g., the statute of limitations has run, or the witness has been given immunity), the privilege does not apply. The fact that answering the question might subject the witness to ridicule or civil liability is not enough.

C. Proceedings where applicable: The privilege applies not only where asserted by a defendant in a criminal trial, but also by any witness in any kind of proceeding. Thus it may be asserted by witnesses to a grand jury investigation, to another person's criminal trial, to a civil proceeding, to pre-trial discovery proceedings (e.g., W's deposition is being taken), or to questioning by the police. [420 - 422]

D. Procedure for invoking: [422 - 423]

1. Criminal defendant: When the assertion is made by the defendant in a criminal trial, he may invoke the privilege merely by declining to testify. In that event, he does not have to take the stand at all, and cannot even be questioned.

2. Non-defendant witness: But if the privilege is being claimed by a witness (i.e., someone other than the defendant in a criminal trial), the procedure is different: the witness must take the stand, be sworn, listen to the question, and then assert the privilege. In this event, it is the judge who decides whether the response might be incriminatory; but the person seeking the testimony bears an extremely heavy burden of proving that the response could not possibly incriminate W, a showing that can only rarely be made.

E. Waiver: A person who takes the stand and gives some testimony may be held to have waived the privilege with respect to further questions: [423 - 425]

1. Criminal defendant: If a criminal defendant does take the stand, and testifies in his own defense, he has waived his privilege at least with respect to those questions that are necessary for an effective cross-examination. (Example: In a murder trial, D testifies that he was not anywhere near the scene of the crime. The prosecution would certainly be entitled to ask D where he was, and D could not assert the privilege in refusing to answer.)

2. Witness: Since an ordinary witness must take the stand and listen to each question, a witness who answers non-incriminating questions will not be held to have waived the privilege with respect to later, incriminating, questions. However, if W makes a general and incriminatory statement about a matter, he must then answer follow-up questions eliciting the details, at least where these details would not add significantly to the incrimination.

3. Later proceedings: If the defendant or witness does waive the privilege, this waiver is effective throughout the current proceedings, but not for subsequent proceedings. (Example: W's waiver during grand jury proceedings would not prevent him from asserting the privilege when called as a witness at a subsequent trial of X on an indictment returned by that same grand jury.)

F. Documentary evidence: When a document is subpoenaed by the government, the person receiving the subpoena may have a fifth amendment right not to comply: [425 - 428]

1. Contents: The contents of the subpoenaed document will practically never be protected by the Fifth Amendment: so long as the taxpayer was not originally compelled to create the document, its contents are not protected by the privilege.

2. Act of producing: But a person's act of producing the documents in response to a subpoena may implicitly incriminate him, in which case he probably has a Fifth Amendment privilege not to produce it. For instance, if there were no way that the government could obtain or authenticate a certain personal diary kept by D except through production of this diary by him, D might be allowed to plead the Fifth by arguing that his production would implicitly mean that he is stating: (1) that the diary exists; (2) that the diary was in his possession or control; and (3) that he believes that this is indeed the genuine diary the government is seeking. (But if the government can show that it has other ways of authenticating this diary, then the privilege will not apply.)

3. "Required records" exception: Even if a person is compelled to keep a certain type of record, he may not have a Fifth Amendment right to refuse to do so: the record keeper must turn the record over even though it might incriminate him, if: (1) the record is one that a party has customarily kept, (2) the law requiring the keeping of it is "essentially regulatory," and (3) the records are analogous to a "public document." This is the "required records" exception to the privilege against self-incrimination. (Example: Records of prices charged to customers, kept under a mandatory price control law, still have to be turned over because they are essentially regulatory.)

G. Inference and comment: When a criminal defendant pleads the Fifth, he gets two other procedural safeguards to extend the privilege's usefulness. [428 - 430]

1. "No comment" rule: First, neither the judge nor the prosecution may comment adversely on D's failure to testify (e.g., by saying, "If D is really innocent, why hasn't he taken the stand to tell you that?")

2. Instruction: Second, D has an affirmative right to have the judge instruct the jury that they are not to draw any adverse inference from his failure to testify.

3. Prior silence: If the criminal defendant has remained silent at prior proceedings, the judge and prosecutor may not comment if the silence was the result of clear exercise of a constitutional privilege:

a. Arrest: Thus, if D was previously silent during custodial police interrogation, the prosecutor and judge may not comment on this fact at D's later criminal trial.

b. Pre-arrest silence: But if D remained silent before being arrested, this fact may be comment on, since D was not exercising any formal Fifth Amendment privilege. (Example: D pleads self-defense to a murder charge. The prosecution may comment upon the fact that for the two weeks between the killing and D's arrest, he did not go to the police to tell them his story.)

4. Civil suit: If the suit is a civil one, either side may freely comment adversely on the other party's (or a witness') failure to testify. (Example: P sues D for causing a car accident; D fails to take the stand because he is afraid that if he does so, the fact that he was drunk will come out, and he may be prosecuted. P may nonetheless say to the jury, "If D wasn't driving drunk, why doesn't he take the stand and tell you that?")

H. Immunity: If W is given immunity from prosecution, he may not assert the privilege (since he has received the same benefit - freedom from having his testimony used against him - that the privilege is designed to provide). [430 - 431]

1. "Transactional" vs. "use" immunity: There are two types of immunity: "transactional" and "use." Transactional protects the witness against any prosecution for the transaction about which he testifies. Use immunity is much narrower - it merely protects against the direct or indirect use of the testimony in a subsequent prosecution.

2. Use immunity sufficient: Use immunity is sufficient to nullify the witness' Fifth Amendment privilege. (But the prosecutor then bears a heavy burden of showing that he could not have used the testimony, even indirectly, in preparing for the subsequent case.)

3. Defense witness immunity: If a person could give testimony that a criminal defendant thinks would help exonerate him, but the witness refuses to testify without immunity, the defendant may attempt to have "defense witness immunity" conferred upon this witness. But the vast majority of courts have refused to grant such defense witness immunity.

I. Prosecutorial discovery: A criminal defendant is sometimes required to disclose to the prosecution, as part of discovery proceedings, certain facts about his defense. Such "prosecutorial discovery" might conceivably violate D's Fifth Amendment right, but only if D can show that: (1) the information will not be disclosed by D at trial (so that D may be forced to disclose such anticipated trial claims as an alibi defense); and (2) the information derives from him and not from some third party (so that D may be required to disclose statements obtained from X, a witness). But D might be able to refuse to turn over a report by a private investigator hired by D, containing statements made in confidence by D to the investigator. [432]

V. THE MARITAL PRIVILEGES

A. Generally: [432 - 435]

1. Two privileges: In most states, two distinct privileges protect the marital relationship:

a. Adverse testimony: The adverse testimony privilege (sometimes called "spousal immunity") gives a spouse complete protection from adverse testimony by the other spouse. (Example: H is on trial for murder; the adverse testimony privilege protects H from having W take the witness stand to testify against him, regardless of whether her testimony concerns anything he said.)

b. Confidential communication: The confidential communications privilege is narrower: it protects only against the disclosure of confidential communications made by one spouse to the other during the marriage. (Example: H is on trial for murder. The confidential communications privilege protects H against having W disclose that H confessed to her, "I shot V," but does not protect him against having W describe to the jury how she witnessed H kill V.)

2. Distinctions: Here are some of the practical differences between the two privileges:

a. Before marriage, or after marriage ends: The adverse testimony privilege applies only if the parties are still married at the time of the trial, but applies to statements made before the marriage took place. Conversely, the confidential communications privilege covers only statements made during the marriage, but applies even if the parties are no longer married by the time of the trial.

b. Civil vs. criminal: The adverse testimony privilege is usually allowed only in criminal cases, but the confidential communications privilege is usually available in civil as well as criminal cases.

c. Acts: The adverse testimony privilege prevents the non-party spouse from testifying even as to acts committed by the spouse, but the confidential communications privilege does not (since it covers only "communications").

3. State coverage: Only a slight majority of states recognize the adverse testimony privilege, but virtually all recognize the confidential communications privilege. In federal courts, both privileges are recognized.

B. Adverse testimony privilege: [435 - 436]

1. Who holds: Courts disagree about who holds the adverse testimony privilege:

a. Federal: In federal cases, the privilege belongs only to the testifying spouse, not the party spouse. Thus, D in a federal criminal trial may not block his spouse's testimony; only the witness-spouse may assert or waive the right.

b. States: Of those states recognizing the adverse testimony privilege, a slight majority give the privilege to the party (i.e., the criminal defendant); the rest follow the federal approach of giving the privilege only to the witness-spouse.

2. Criminal vs. civil: Most jurisdictions (including the federal courts) grant the adverse testimony privilege only in criminal cases.

3. Special marriage: If D is worried about his girlfriend's being required to disclose something she has heard or seen, he may marry her the night before the trial, and thereby keep her off the stand using the adverse testimony privilege.

C. Confidential communications: Virtually every state recognizes the confidential communications privilege. [436 - 438]

1. Federal: Federal courts apply this privilege on the basis of general federal common law, since there is no federal rule granting it.

2. Who holds: In most states, either spouse may assert the privilege. (But a few states grant it only to the spouse who made the communication.)

3. "Communication" required: Only "communications" are privileged. Strictly speaking, an "act" that is not intended to convey information is not covered. (But some states have held that if an act is done in front of the spouse only because the actor trusts the spouse, the privilege should apply. Thus if H allows W to see his recently-fired shotgun before putting it away, the court might hold that this was the equivalent of a "communication" since it would not have happened had H not trusted W.)

4. Marital status: The parties to the communication must be married at the time of the communication. If so, the privilege applies even though they have gotten divorced by the time of the trial.

5. Exceptions: Here are some common exceptions to the confidential communications privilege:

a. Crime against other spouse: Prosecution for crimes committed by one spouse against the other, or against the children of either;

b. Suit between spouses: Suits by one spouse against the other (e.g., a divorce suit);

c. Facilitating crime: Communications made for the purpose of planning or committing a crime. (Example: H brings home loot from a robbery, and asks W to help him hide it. Since H is seeking W's help in committing an additional crime - possession of stolen goods - most courts would find the privilege inapplicable to H's request for assistance.)

VI. MISCELLANEOUS PRIVILEGES

A. Priest-penitent: Virtually all states recognize a privilege for confidential communications made to a clergyman in his profession capacity as spiritual advisor. [438]

B. Journalist's source: Most states now recognize a privilege for a journalist's sources: [439 - 441]

1. Statutes: A slight majority of states have enacted "shield laws" preventing a journalist from being compelled to testify about his confidential sources. All of these statutes at least protect the journalist from having to disclose the identity of his sources; some protect him against forced disclosure of his notes and records of information learned from the source.

2. Constitutional argument: Some state and lower-federal courts have recognized a First Amendment basis for the privilege in some situations. (Example: If the information being sought is not very central to the case of the litigant who is seeking it, or can be gotten from other sources, the court may find that the journalist has a constitutional right not to supply it.) But the Supreme Court has never found such a First Amendment privilege to exist, and in one major case, a four-justice plurality concluded that no such privilege exists. Branzburg v. Hayes.

3. Conflict with defendant's rights: If the journalist's statutory or constitutional privilege conflicts with a criminal defendant's Sixth Amendment right to compulsory process or confrontation, the journalist's privilege will probably have to give way. (Example: Reporter conducts a murder investigation, leading to charges against D; D's constitutional right to compulsory process outweighs Reporter's rights under the state shield provision, so Reporter is required to supply his notes on his investigation. In re Farber.)

C. Government information: The government may have a privilege not to disclose information in its possession: [441 - 446]

1. Military or diplomatic secrets: The government has an absolute privilege not to disclose military or diplomatic secrets. No matter how badly a litigant needs such information, the government is privileged not to disclose it.

2. Other government information: Other types of government information receive merely a qualified privilege. That is, the privilege applies only where the harm to the public welfare from disclosure outweighs the litigant's need for the information.

a. Internal deliberations and policy making: Thus internal government opinions, deliberations, and recommendations about policies are qualifiedly privileged. (But factual reports are not.)

b. Law enforcement investigatory files: Similarly, investigatory files compiled by a law enforcement agency are qualifiedly privileged. (Example: A criminal defendant has no general evidence-law right to force the government to turn over to him the files it has compiled in investigating and preparing the case against him, though criminal discovery rules may give him the right to certain items, such as witnesses' statements.)

3. Informers: The government has a special privilege to decline to disclose the identity of informants who have given information about crimes.

a. I.D. only: Usually, the government informant privilege protects only the identity of the informant, not the substance of the information that he gives to the government (unless that information would effectively reveal the informant's identity).

b. Qualified: The privilege is only a qualified one. Thus if disclosure of the informant's I.D. is likely to materially help the criminal defendant in his defense, the government must disclose it or drop the case. Participants and eyewitnesses are usually held to be so central that their I.D.s must be disclosed; but a mere "tipster" is not, so his identity may usually be concealed. Anyone called as a witness by the prosecution must be identified.

4. Consequences of upholding claim: If the court upholds the government's claim of privilege, and the government is the plaintiff (as in a criminal prosecution or a civil suit brought by the government), the government must normally choose between releasing the information or dropping the case.

D. Trade secrets: Some courts recognize a qualified privilege for trade secrets; that is, special secrets which a business possesses that aid it in competing. (Examples: Information about a company's relative market position; secret information about a device or process; design information about a product.) If the judge does partly override the privilege because of a litigant's great need for the material, he may issue a protective order limiting the use to which the information may be put (e.g., by ordering that the litigant not disclose it to anyone else). [446]

E. Newly emerging privileges: [447 - 448]

1. Parent-child communications: Three states have recognized a privilege for communications from minor child to parent (but not from parent to child).

2. Other professional relationships: One third of the states have granted a privilege for communications made to accountants. A few have granted a privilege for communications made to professional counselors (e.g., social workers, marriage counselors, etc.)

Chapter 8 
REAL AND DEMONSTRATIVE EVIDENCE, INCLUDING WRITINGS

I. INTRODUCTION

A. "Real" vs. "demonstrative" evidence: [459 - 460]

1. "Real": "Real" evidence is a tangible object that played some actual role in the matter that gave rise to the litigation. (Example: A knife used in a fatal stabbing.)

2. "Demonstrative": Demonstrative evidence is tangible evidence that merely illustrates a matter of importance in the litigation. (Examples: Maps, diagrams, models, summaries, and other materials created especially for the litigation. For instance, if the prosecution cannot find actual knife used in stabbing, a newly-acquired knife believed to be similar to the one actually used may be presented as a model to help the jury understand.)

3. Significance of distinction: The foundation requirements needed to authenticate the two types of evidence are different. See below.

II. AUTHENTICATION

A. Generally: All real and demonstrative evidence must be "authenticated" before it is admitted. That is, it must be shown to be "genuine." This means that the object must be established to be what its proponent claims it to be. See FRE 901(a). [462]

1. Real evidence: If the object is real evidence, authentication usually means showing that the object is the object that was involved in the underlying event (e.g., the actual knife used in the stabbing).

2. Demonstrative: If the evidence is demonstrative, authentication usually means showing that the object fairly represents or illustrates what it is claimed to represent or illustrate (e.g., proof that a diagram offered in evidence really shows the position of the parties and witnesses at the time of the murder).

B. Methods of authentication: [463 - 467]

1. Real evidence: For real evidence, authentication generally is done in one of two ways:

a. Readily or uniquely identifiable: If the item is readily or uniquely identifiable, it can be authenticated by showing that this is the case, and that the object is therefore the one that played the actual role. (Example: "I found the knife at the stabbing, and marked it with my initials; the knife you have just shown me has my carved initials, so it must be the knife found at the murder scene.")

b. Chain of custody: Otherwise, the item's "chain of custody" must be demonstrated. That is, every person who handled or possessed the object since it was first recognized as being relevant must explain what he did with it. (Example: Each person who handled the white powder taken from D must testify about how he got it, how he handled it during his custody, and whom he turned it over to.)

2. Demonstrative evidence: If the evidence is demonstrative, authentication is done merely by showing that the object fairly represents some aspect of the case.

3. Federal Rules: The Federal Rules have a simple, basic principle of authentication that applies to all evidence (real, demonstrative, writings, and intangibles): the proponent must come up with evidence "sufficient to support a finding that the matter in question is what its proponent claims." FRE 901(a). (901(b) gives illustrations of proper authentication.)

4. Judge's role: The judge does not have to decide whether the proffered item is what its proponent claims it to be (the jury does this). But the judge does have to decide whether there is some evidence from which a jury could reasonably find that the item is what it is claimed to be.

C. Authentication of writings and recordings: Special rules exist for authenticating writings and other recorded communications: [467 - 474]

1. Authorship: Usually, authentication of a writing consists of showing who its author is.

2. No presumption of authenticity: A writing or other communication (just like any non-assertive evidence like a knife) carries no presumption of authenticity. Instead, the proponent bears the burden of making an affirmative showing that the writing or communication is what it appears to be and what the proponent claims it to be. [467 - 468]

a. Signature: Thus, a writing's own statement concerning its authorship (e.g., its signature) is not enough - the proponent must make some independent showing that the signature was made by the person who the proponent claims made it.

3. Direct testimony: One way to authenticate a writing or communication is by direct testimony that the document is what its proponent claims. (Example: If proponent wants to show that X really signed the document, he may produce W to testify that W saw X sign it.)

4. Distinctive characteristics: A writing's distinctive characteristics, or the circumstances surrounding it, may suffice for authentication. See FRE 901(b)(4). (Example: The fact that a diary contains the logo of D Corp.; its entries match testimony previously given by X (D Corp.'s employee); it was produced by D Corp. during discovery; and it is similar to other diaries previously authenticated, all suffices to authenticate the diary as having been kept by X.) [468]

5. Signature or handwriting: A document's author can be established by showing that it was signed or written in the hand of a particular person. Even if no witness is available who saw the person do the signing or writing, the document may be authenticated by a witness who can identify the signature or handwriting as belonging to a particular person. [469]

a. Expert: If W, the person identifying the signature or handwriting, is a handwriting expert, he may base his testimony based solely on handwriting specimens from X that he examined in preparation for his trial testimony.

b. Non-expert: But if W, the authenticating witness, is not a handwriting expert, his testimony may not be based on comparisons and studies made directly for the litigation; instead, he must testify that he saw X's handwriting at some time before the litigation began, and that he recognizes the signature or handwriting in question to be that of X.

c. Exemplars: Exemplars (specimens prepared by the person claimed to have written the document in question) may be shown to the jury, which is then invited to make its own conclusion about whether the exemplar and the questioned document were by the same person.

6. Reply letters and telegrams: A letter or telegram can sometimes be authenticated by the circumstantial fact that it appears to be a reply to a prior communication, and the prior communication is proved. (Example: P proves that he wrote a letter to D on Jan. 1; a letter purporting to have been written by D to P on Jan. 15, that alludes to the contents of the earlier P-D letter, is authenticated by these circumstantial facts as indeed being a D-P letter.) [469 - 470]

7. Phone conversation: When the contents of a telephone conversation are sought to be proved, the proponent must authenticate the conversation by establishing the parties to it. [470 - 472]

a. Outgoing calls: For outgoing calls (calls made by the sponsoring witness), the proponent can authenticate the call by showing that: (1) W made a call to the number assigned by the phone company to a particular person; and (2) the circumstances show that the person who talked on the other end was in fact the person the caller was trying to reach. FRE 901(b)(6). [470 - 471]

i. Circumstances: The "circumstances" showing that the person on the other end was the one the caller was trying to reach, include: (1) self-identification by the callee ("This is George you're speaking to"); or (2) the caller's identification of the callee's voice through prior familiarity.

ii. Call to business: If the outgoing call is to a business, FRE 901(b)(6)(B) says that authentication can be made by showing that the call was made to the listed number for the business and that the conversation "related to business [of a sort that would be] reasonably transacted over the telephone."

b. Incoming calls: Where the call is an incoming one (i.e., the sponsoring witness is the recipient), self-authentication by the caller is not enough. There must be some additional evidence that the caller is who he said he was. (Example: W wants to testify that she received a call from X. It's not enough for W to testify, "I received a call from someone who said he was X." But if W adds, "I recognized the voice as belonging to X, from prior conversations with him," that would be enough to authenticate the call as having been from X.) [471 - 472]

8. Attesting witnesses: If a document is attested to or subscribed to by witnesses (e.g., a will), special rules sometimes apply:

a. Common law: At common law, at least one attesting witness must be called to testify (even if he does not authenticate the document) before non-attesting witnesses may authenticate it.

b. Federal Rule: But FRE 903 drops this requirement (except where the relevant state law imposes it).

9. Ancient documents:

a. Common law: At common law, a writing is automatically deemed authenticated as an "ancient document" if it: (1) is at least 30 years old; (2) is unsuspicious in appearance; and (3) has been found in a place of custody natural for such a document.

b. Federal Rules: FRE 901(b)(8) applies the same requirements as the common law (above) for ancient documents, except that: (1) the document needs to be only 20 years old; and (2) the rule covers not only "documents" but "data compilations" (e.g., a computer tape, and probably photos, X-rays, movies, and sound tapes as well).

c. No guarantee of admissibility: But keep in mind that a document that satisfies these requirements for the "ancient document" rule of authentication merely overcomes the authentication hurdle. The document still has to survive other obstacles (e.g., it must be not hearsay or fall within some exception; but there is also an ancient document exception to the hearsay rule; see supra).

D. Self-authentication: A few types of documents are "self-authenticating," because they are so likely to be what they seem, that no testimony or other evidence of their genuineness need be produced. [474 - 475]

1. State provisions: Under most state statutes, the following are self-authenticating: (1) deeds and other instruments that are notarized; (2) certified copies of public records (e.g., a certified copy of a death certificate); and (3) books of statutes which appear to be printed by a government body (e.g., a statute book appearing to be from a sister state or foreign country).

2. Federal Rules: FRE 902 recognizes the above three classes, and also adds: (1) all "official publications" (not just statutes); (2) newspapers or periodicals; and (3) labels, signs, or other inscriptions indicating "ownership, control, or origin" (e.g., a can of peas bearing the label "Green Giant Co." is self-authenticating as having been produced by Green Giant Co.).

E. Ways to avoid: Authentication is not necessary if: [476]

1. Admission: The proponent has served on the opponent a written request for admission, and the opponent has granted this.

2. Stipulation: The parties have jointly stipulated to the genuineness of a particular document or object.

III. THE "BEST EVIDENCE RULE" FOR RECORDED COMMUNICATIONS

A. Generally: [479 - 481]

1. Text of rule: The Best Evidence Rule (B.E.R.) provides that "in proving the terms of a writing, where the terms are material, the original writing must be produced unless it is shown to be unavailable for some reason other than the serious fault of the proponent."

2. Components: The B.E.R. has three main components:

a. Original document: The original document must be produced, rather than using a copy or oral testimony about the document;

b. Prove terms: The Rule applies only where what is to be proved is the terms of a writing (or, under the modern approach, an equivalent recorded communication such as an audio tape of a conversation); and

c. Excuse: The Rule does not apply if the original is unavailable because it has been destroyed, is in the possession of a third party, or cannot be conveniently obtained, and the unavailability is not due to the serious fault of the proponent.

3. Not applicable to evidence generally: The B.E.R. does not apply to evidence generally, only to writings (or equivalent recorded communications).

4. Federal Rule: FRE 1002 gives the federal version of the B.E.R.: "To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required...." The federal approach changes the common-law rule in two major ways:

a. Broadened coverage: Not just writings, but also recordings and photographs are covered by the Federal Rule in contrast to the common-law rule. (Examples: An audio tape of a conversation, or a computer tape of data, would be covered under the federal approach, so that if these items are available, they must be introduced instead of using oral testimony to describe their contents.)

b. Duplicate: But unlike the common law, the federal rules allow a duplicate (e.g., a photocopy) in lieu of the original unless the opponent raises a genuine question about authenticity or it would be unfair in the circumstances to allow the duplicate. FRE 1003.

B. What is a "writing" or other recorded communication: [481 - 482]

1. Short inscription: An object that contains a short inscription (e.g., a pocket watch with words of affection engraved on it) might be held to be a "writing" covered by the B.E.R., depending on the surrounding circumstances (e.g., how important its precise, rather than approximate, content is to the litigation).

2. Photographic evidence: Under the modern and federal approach, a photograph or X-ray will be covered by the rule, if offered to prove the contents of the item. (Example: P, to prove that she has been injured, wants to prove that her X-rays show a spinal injury; the X-rays themselves must be used if available, rather than a radiologist's testimony about what the X-rays show.)

3. Sound recordings: Similarly, if a party tries to prove the contents of a sound recording, he must do so by presenting the actual recording rather than an oral or written account of what it provides.

C. Proving the contents: The B.E.R. only applies where what is sought to be proved are the "terms" or "contents" of the writing. [482 - 483]

1. Existence, execution, etc.: Thus if all that is proved is that a writing exists, was executed, or was delivered, the B.E.R. does not apply. (Example: Prosecution of D for kidnapping; a prosecution witness, W, mentions that a ransom note was received but does not testify about the note's contents. Since this proof that the ransom note was delivered does not constitute proof of its terms, the note need not be produced in evidence. But if W goes on to give the details of what the note said, the note would have to be produced if available.)

2. Incidental record: The fact that there happens to be a writing memorializing a transaction does not mean that the transaction can only be proved by the introduction of a writing. Here, the writing is treated as an incidental by-product of the transaction. (Example: The earnings of a business can be proved by oral testimony, rather than by submitting the books and records, because those books and records are merely an incidental memorializing of the earnings.)

a. Transcript: A person's prior testimony can generally be proved by an oral account of a witness who heard the testimony, even if a transcript exists. The transcript is merely an incidental by-product of the testimony. (But a confession by a defendant to the crime charged must generally be proved by the transcript or recording.)

b. Photo: If a photograph, X-ray, audio recording, video tape, etc., has been made of an object or event, live testimony about the object or event will generally be allowed in lieu of introducing the photograph, etc. (Example: W may testify to seeing D shoot V, even though there happens to be a home movie showing the shooting. The movie is an incidental memorial of the event, so the event can be proved without the movie.)

c. Contract: But if a document truly embodies a transaction, the document comes within the B.E.R. and must be produced if available. (Example: If two parties to an agreement have signed a formal written contract, that contract must be produced at the litigation, even though the parties could have bound themselves orally to the same terms; the contract embodies their arrangement, rather than merely being an incidental by-product of it.)

D. Collateral writings: The "collateral writings" exception means that a document which has only a tangential connection to the litigation need not be produced, even though its contents are being proved. See FRE 1004(4) (original need not be produced if the writing, recording, etc., is "not closely related to a controlling issue"). [484]

E. Which is original: If one writing is derived from another, the earlier one is not necessarily the "writing itself" that must be produced. The proposition being proved may be such that the derivative writing is the one whose contents are being proved, in which case it is the original of that derivative writing that must be produced. (Example: D writes a handwritten letter to X possibly defaming P; D then hands the letter to his secretary, who retypes it and sends the typed version. At P's libel suit against D, it is the derivative typed version, not the handwritten version, which is the "original" that must be produced if available.) [484 - 486]

F. Reproductions: [486 - 487]

1. Common law: At common law, no subsequently-created copy was the equivalent of the original. Therefore, if the B.E.R. applied, no copy (e.g., a handwritten version) could suffice.

2. Modern statutes: But today, most states have a statute by which regularly-kept photocopies of business and public records are admissible even if the original is available. Such statutes override the B.E.R.

3. Federal: The Federal Rules have a broad copying provision: copies produced by any reliable modern method (including photocopying) are "duplicates" that are presumptively admissible. Such a duplicate is admissible even if the original is available, unless the opponent raises a "genuine question ... as to the authenticity of the original" or it would be unfair in the circumstances to admit the duplicate instead. FRE 1003; 1001(4). (Examples: Photocopies, mimeograph copies, carbon copies, images scanned into a computer and then printed out, copies of an original video or audio tape made by re-recording, etc., would all qualify as "duplicates" under the federal approach. But any copies produced manually, whether by typing or handwriting, are not "duplicates" and therefore may not be used if the original is available.)

G. Excuses for non-production: There are several types of "excuses" for non-production, which will allow the proponent to use derivative evidence (e.g., a manual copy or oral testimony) instead of the original: [487 - 489]

1. Loss or destruction: If the proponent can show that the original has been destroyed or lost he may use a copy (unless the loss or destruction is due to the proponent's bad faith or serious fault).

2. Inconvenience: In some courts, extreme inconvenience of producing the original will suffice.

3. Possession by third person: If the original is in the possession of a third person, and cannot be obtained by judicial efforts (e.g., a subpoena duces tecum), this will excuse non-production.

4. Original in opponent's possession: If the original is in the hands of the opponent, or under the latter's control, and the proponent has notified him to produce it at the trial but the adversary has failed to do so, the proponent may use a copy instead. See FRE 1004(3).

H. Summaries: If original writings are so voluminous that they cannot conveniently be introduced into evidence and examined in court, most courts permit a summary to be introduced instead. FRE 1006. [489]

1. Sponsoring witness: The summary must be sponsored by a witness (usually an expert) who testifies that he has reviewed the underlying writings and the summary, and that the summary accurately reflects the underlying documents.

2. Originals: Usually, the court requires that the underlying documents be made available for examination by the opponent, and that the underlying documents be at least generally admissible. (But the underlying documents need not be individually admitted, since the purpose of the summary is to avoid this.)

I. Admission by adversary: An adversary's admission about the terms of a writing is sometimes usable in lieu of the writing itself, to prove the terms of the writing. [490]

1. Written: A written admission or an admission under sworn testimony is always usable to prove the terms of the writing. (Example: D writes to P, "Remember that I wrote you in December offering to buy your farm." This later letter is evidence that D made this statement in his December letter. Similarly, D's oral deposition testimony - "I wrote to P in December asking to buy his farm" - would suffice to prove that the December letter contained such an offer.)

2. Oral: But courts are more reluctant to allow an unsworn oral admission by a party to be used by the other party to prove the terms of a writing. Thus FRE 1007 does not allow such proof of an unsworn oral admission.

J. Preferences among secondary evidence: If the original does not exist, courts are split as to whether the next best available evidence must be used. [490 - 491]

1. Majority rule: Most American state courts do recognize "degrees of substantive evidence," and hold that where there is a choice between a written copy and oral testimony, the written copy must be used.

2. Minority/Federal Rule: A minority of states (but also the Federal Rules) hold that "there are no degrees of substantive evidence." Thus under FRE 1004, even if handwritten notes or a typed copy of a writing exist, a party may instead prove the terms of the writing by oral testimony.

K. Judge-jury allocation: The judge, not the jury, decides most questions relating to application of the B.E.R. Thus under FRE 1008, it is the judge who decides such questions as: (1) whether a particular item of evidence is an "original"; (2) whether the original has been lost or destroyed; and (3) whether the evidence relates to a "collateral matter." [491 - 492]

IV. SPECIAL TYPES OF REAL AND DEMONSTRATIVE EVIDENCE

A. Pictorial evidence: [492 - 493]

1. Authentication: There are now usually two ways to authenticate pictorial evidence (e.g., photographs, X-rays, movies, and video tapes):

a. Illustration of what W saw: First, the proponent puts on a sponsoring witness, W, who says that the picture illustrates what W saw. (Example: W testifies, "I observed the scene of the crime just as the police photographer was arriving, and this photograph accurately depicts the scene as it was at that moment.")

b. "Silent witness" method: Alternatively, most courts allow a photograph to be verified not by the testimony of any witness who actually witnessed the scene or event portrayed, but rather from testimony about the reliability of the process by which the photo was produced. This is often used for X-rays and automatic picture-taking devices. (Example: W, an engineer for a company that makes bank surveillance photographic equipment, testifies, "Our machine reliably creates a photo with an image of a person doing a transaction at the teller's window on one side, and the document presented by that person to the teller on the other side. Therefore, this piece of film accurately shows that the person pictured presented the check pictured.")

B. Computer print-outs: [493 - 494]

1. Authentication: If a computer print-out is offered as evidence of the facts contained in the print-out (e.g., financial or numerical facts), the print-out must be authenticated. This is usually done by a witness who testifies that the methods used to put data into the computer, to program it, and to produce a print-out of the data, were all reliable.

2. Best Evidence Rule: Generally, a computer print-out can be used to prove the facts represented in the print-out without B.E.R. problems (the opponent can claim that the print-out is merely a "duplicate" of the original pre-computer paper documents, but he would then have the burden of showing that the print-out is not an accurate reproduction of the original paper record).

C. Maps, models, diagrams, etc.: [494 - 495]

1. Evidentiary status: Courts will treat maps, models, diagrams, etc., as being incorporated into the witness' testimony, so that they become evidence for purposes of trial and appeal.

D. Views: The judge may permit the jury to journey outside the courtroom to visit and observe a particular place, if this would help them understand an event. The excursion is called a "view." [495 - 496]

1. Discretion: The judge has broad discretion about whether to allow the jury to take a view.

2. Presence of judge: In civil cases, the judge need normally not be present. In criminal cases, most states have statutes requiring the judge to be present at the view.

3. Defendant's right to be present: A criminal defendant usually has a statutory right to be present at the view (and may have a constitutional Confrontation Clause right to be present).

4. Evidentiary status: Courts are split as to whether the view is evidence, or merely an aid to the understanding of the evidence.

E. Experiments: An experiment conducted by a party may sometimes be admitted. If the experiment takes place out of court, its admissibility will depend mostly on whether the conditions are sufficiently similar between the experiment and the event that it is attempting to explain. (Example: Where P complains that his crash was caused by a defective transmission in a car produced by D, an experiment to see if the transmission breaks in a different car will be allowed only if both the test car and the conditions are shown to be highly similar to the original conditions.) [497-98]

Chapter 9 
OPINIONS, EXPERTS, AND SCIENTIFIC EVIDENCE

I. FIRST-HAND KNOWLEDGE AND LAY OPINIONS

A. First-hand knowledge required: An ordinary (non-expert) witness must limit his testimony to facts of which he has first-hand knowledge. [509 - 510]

1. Distinguished from hearsay: You must distinguish the "first-hand knowledge" requirement from the hearsay rule. If W's statement on its face makes it clear that W is merely repeating what someone else said, the objection is to hearsay; if W purports to be stating matters which he personally observed, but he is actually repeating statements by others, the objection is to lack of first-hand knowledge.

2. Experts: The rule requiring first-hand knowledge does not apply to experts. (See below.)

B. Lay opinions: [509 - 511]

1. Traditional view: The traditional view is that a non-expert witness must state only facts, not "opinions." (Example: If W observes D's driving behavior leading to a crash, W may not testify that D "drove very carelessly," but must instead give more specific testimony, e.g., D's estimated rate of speed, degree of attention, etc.)

a. Exception for short-hand renditions: Even under the traditional view, W may give an "opinion" that is really a "short-hand rendition." That is, if W has perceived a number of small facts that cannot each be easily stated, he may summarize the collective facts with a "shorthand" formulation. (Example: W may testify that D was "mentally disturbed," even though this has a conclusory aspect.)

2. Modern/federal approach: But the modern/federal view is that lay opinions will be allowed if they have value to the fact-finder. See FRE 701, allowing opinions or inferences that are "(a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue."

C. Opinion on "ultimate issue": Of those courts that allow lay opinions, a few bar opinions on "ultimate issues." But most today allow even opinions on ultimate issues. Thus FRE 704(a) allows opinions on ultimate issues except where the mental state of a criminal defendant is concerned. [511 - 513]

1. Exceptions: But even the liberal federal approach excludes a few types of opinions on ultimate issues. For instance, a witness will not be permitted to express his opinion on a question of law (except foreign law), or an opinion on how the case should be decided.

II. EXPERT WITNESSES

A. Requirements for allowing: Expert testimony must meet two requirements to be admissible: [514 - 515]

1. Qualifications: First, the expert must be "qualified." That is, he must have knowledge or skill in a particular area that distinguishes him from an ordinary person.

a. Source of expertise: This expertise may come from either education or experience.

b. Need for sub-specialist: Generally, a specialist in a particular field will be treated as an expert even though he is not specialist in the particular sub-field or branch of that field. (Example: If a medical condition involves kidney failure, a general practitioner would probably be found a qualified expert, even though he is not a sub-specialist in nephrology.)

2. Suitable subject matter: Second, the expert's testimony must concern a topic that is so specialized that without the testimony, the jury would be less able to reach an accurate conclusion.

a. Traditional rule: Traditionally, the subject matter of the expert testimony had to be so specialized that it was "beyond the ken" of laymen.

b. Modern and federal rule: But the Federal Rules illustrate the modern trend: the expert's testimony must merely be "helpful" to the jury's understanding of the case. (FRE 702). This requirement will generally be found to be satisfied if the issue is a technical one. But where the matter is one that juries and ordinary people are often called upon to evaluate, the requirement may be found not to be satisfied. (Example: Since juries and ordinary people are often called upon to evaluate the reliability of an eyewitness identification, expert testimony purporting to tell the jury why such I.D.s are often unreliable will often be rejected as not satisfying this requirement of "helpfulness.")

B. Basis for expert's opinion: The expert's opinion may be based upon any of several sources of information, including: (1) the expert's first-hand knowledge; (2) the expert's observation of prior witnesses and other evidence at the trial itself; and (3) a hypothetical question asked by counsel to the expert. [516 - 519]

1. Inadmissible evidence: Today, the expert's opinion may be based on evidence that would otherwise be inadmissible. Under FRE 703, even inadmissible evidence may form the basis for the expert's opinion if that evidence is "of a type reasonably relied upon by experts in a particular field in forming opinions or inferences upon the subject...." (Example: Driver tells an accident investigator that the accident occurred when his brakes failed. The investigator writes a report, which is read by Expert, an accident analysis specialist. Even though Driver's statements are probably otherwise-inadmissible hearsay, if experts in the field of accident analysis would rely on such hearsay statements, Expert's opinion may be based upon this statement.)

2. Disclosure of basis to jury: Some courts require the expert to state the facts or assumptions that he has based his opinion on, as part of his direct testimony. But most courts, and the Federal Rules, do not require this. Thus FRE 705 provides that the expert need not make prior disclosure of the underlying facts or data, except that the court may in a particular case require him to do so, and in any event the cross-examiner may require the expert to state these underlying facts or data.

C. The hypothetical question; basis for: If the expert's underlying facts and assumptions come from a hypothetical question, courts today are liberal about the source of these underlying facts and assumptions. Thus: (1) the underlying assumptions need not be supported by evidence in the record at the time of the question, or even by admissible evidence at all; (2) the assumptions may be based upon opinions by others, if an expert in that situation would rely on such an opinion. But there must be some basis for the assumptions in the hypothetical - if the assumptions are so far-fetched that no jury could possibly find them to be true, the hypothetical question will be stricken. [520 - 522]

D. Some procedural aspects: [522 - 524]

1. Cross-examination by use of learned treatise: All courts allow an expert to be cross-examined by use of a learned treatise that contains a differing view. (Example: "Isn't it true, Doctor, that according to Smith's Handbook of Pathology, lung cancer is sometimes caused by asbestos exposure or other factors, not always smoking as you have asserted?") Most courts today allow the use of the treatise as impeaching evidence even if the expert did not rely upon it in forming his opinion, so long as the expert concedes that the treatise is authoritative; the Federal Rules even allow the treatise to be used substantively, not just for impeachment.

2. Court-appointed expert: The Federal Rules allow the appointment of an expert by the court, in which case each party may cross-examine the expert.

III. SCIENTIFIC EVIDENCE - THE DAUBERT STANDARD

A. The Daubert ("scientifically valid") standard: In federal courts, when the results of a scientific test or principle are sought to be introduced, the proponent must show that the test or principle is "scientifically valid" or "scientifically reliable." [Daubert v. Merrell Dow] [525 - 530]

1. Factors: The federal court will consider the following factors, among others, in deciding whether the test or principle is "scientifically valid." (A "yes" answer makes the test/principle more likely to be scientifically valid).

• whether it can be reliably tested;
• whether it's been subjected to peer review and/or publication;
• whether it's got a reasonably low error rate;
• whether there are professional standards controlling its operations;
• whether it's "generally accepted" in the field. (This used to be an absolute requirement for science in the federal courts, but Daubert makes it merely one factor.)
• whether it was developed for purposes other than merely to produce evidence for the present litigation.

2. State response: State courts (even ones adopting the FRE) don't have to follow Daubert if they don't want to. Some already have. Others have rejected Daubert and continue to apply the older "generally accepted" standard. [529]

IV. PARTICULAR TYPES OF SCIENTIFIC EVIDENCE AND EXPERTISE

A. Probabilities: Courts increasingly accept probability evidence where it supplies a scientifically reliable way of estimating the probability that a disputed event occurred. (Example: In a paternity case, most courts will now accept the results of analysis of genetic markers, whereby an expert testifies that not only are D's genetic markers consistent with those of the child, but only, say, one adult American male out of 3,000 would have markers consistent with those of the child. Similarly, some courts would allow evidence in a rape case that only one in 10,000 males would have semen containing genetic markers consistent with the markers found in the semen in the victim, and that D's semen has such markers.) [531 - 535]

B. Speed detection: The results of radar and VASCAR are commonly admissible to prove the speed at which D's vehicle was traveling. But most courts require the prosecution to prove that the particular speed detection equipment in question was properly calibrated and properly used. [535 - 536]

C. Voice prints: Courts are almost evenly split as to the admissibility of "voice print" analysis, whereby the voice of an unidentified suspect on a taped telephone call is compared with a sample given by D after his arrest. [536 - 537]

D. Neutron activation analysis: Neutron activation analysis (NAA) is generally admitted as a method of identifying a small sample of material (e.g., whether a hair found near a crime scene belongs to D). [537]

E. Psychiatry and psychology: [537 - 540]

1. Mental condition of criminal defendant: Courts generally allow a psychiatrist or psychologist to testify as an expert on the mental condition of a criminal defendant. However, courts try hard to keep the expert from crossing over into areas that are properly the province of law rather than medicine (e.g., whether the defendant knew right from wrong). Thus, FRE 704(b) provides that "no expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto." (Example: In a federal case in which D claims insanity, the defense psychiatrist would be permitted to say that D is a schizophrenic, but will probably not be permitted to say that this condition prevented D from appreciating the wrongfulness of his conduct, now the substantive federal insanity standard.)

2. Reliability of evidence: Courts hesitate to allow expert psychiatric or psychological testimony concerning the reliability of other witnesses' testimony. Thus evidence that a particular eyewitness identification is likely to be unreliable for psychological reasons, or that a particular alleged victim is probably telling the truth because she shows the signs of Rape Trauma Syndrome, will be rejected by many courts.

Chapter 10 
BURDENS OF PROOF, PRESUMPTIONS, AND OTHER PROCEDURAL ISSUES

I. BURDENS OF PROOF

A. Two burdens: There are two distinct burdens of proof, the burden of production and the burden of persuasion. [550 - 554]

1. Burden of production: If P bears the burden of production with respect to issue A, P has the obligation to come forward with some evidence that A exists. This burden is sometimes also called the burden of "going forward."

a. Consequence of failure to carry: If a party does not satisfy this burden of production, the court will decide the issue against him as a matter of law, and will not permit the jury to decide it.

2. Burden of persuasion: If P has the burden of persuasion on issue A, this means that if at the close of the evidence the jury cannot decide whether A has been established with the relevant level of certainty (usually "preponderance of the evidence" in a civil case), the jury must find against P on issue A. This burden is also often called the "risk of non-persuasion" - if neither P nor D have persuaded the jury about whether A exists, to say that P bears the burden of persuasion or the risk of non-persuasion means that he is the one who will lose when the jury decides this issue.

3. One shifts, other does not: The burden of production as to issue A can, and often does, shift throughout the trial. (Example: Suppose P has the burden of showing that D received notice of a fact. If P comes up with evidence that D received notice - e.g., P's own testimony that he told the fact to D - the burden will shift to D to come up with evidence that he did not receive notice.) The burden of persuasion, by contrast, always remains on the party on whom it first rests.

B. Allocating the burdens in civil cases: [554 - 555]

1. Factors: In most issues in civil cases, both the burden of production and the burden of persuasion are on the plaintiff. (Example: In a negligence case, the plaintiff bears the burdens of production and persuasion with respect to showing D's negligence, P's harm, and the causal link between the two. But D bears both burdens with respect to contributory negligence, in most jurisdictions.) Courts consider a number of factors in determining where to place the burdens, including: (1) which party is trying to change the status quo (he is more likely to bear the burdens); (2) who is contending that the more unusual event has occurred (he is more likely to bear the burdens); and (3) which way do policy considerations cut (the court may allocate the burdens in a way that promotes some extra-judicial social policy).

2. "Prima facie" case: The collection of issues on which a civil plaintiff has the burden of production is sometimes called his "prima facie case." (Example: P has established a prima facie case for negligence if he has produced enough evidence of D's negligence, P's own harm, and a causal link between the two, to permit the case to go to the jury.)

C. Allocation in criminal cases: In criminal cases, the Due Process Clause of the U.S. Constitution places limits on the extent to which the burdens of proof may be placed on the defendant: [555 - 559]

1. Element distinguished from affirmative defense: The state is more limited in allocating the burdens as to an "element" of the offense than it is on allocating the burdens as to an "affirmative defense." An element of the crime is an aspect that is part of the basic definition of the crime; an affirmative defense is an aspect that is not part of the basic definition, but which the defendant is allowed to show as a mitigating or exculpating factor. (Examples: "Intent to kill" is an element of the crime of murder, but "self defense" is generally an affirmative defense.)

2. General rules of allocation:

a. Elements: The state is constitutionally required to bear both the burdens of production and persuasion with respect to all elements of the crime.

b. Affirmative defense: The defendant may constitutionally be required to bear both burdens with respect to affirmative defenses.

c. Overlap: If the state defines an affirmative defense in a way that causes that defense to overlap almost completely with some element of the crime, the state must bear both burdens. (Example: Suppose the state makes "malice aforethought" an element of murder, and defines malice aforethought to include "any deliberate act committed by one person against another." If the state makes "heat of passion" an affirmative defense, the state, not D might have to bear the burden of proof and persuasion, because a court might hold that proof that D acted in the heat of passion is tantamount to proof that he did not act with malice aforethought.)

d. Allowable affirmative defenses: At least the following may be established as affirmative defenses on which D bears both burdens: insanity, self-defense, and extreme emotional disturbance.

D. Satisfying the burden of production: [559 - 561]

1. Civil case: In civil cases, on most issues (those as to which the persuasion burden follows the "preponderance of the evidence" standard), the party bearing the production burden must come forward with enough evidence so that a reasonable jury could conclude, by a preponderance of the evidence, that the fact exists.

a. Judge decides: It is the judge, not the jury, who decides whether the party bearing the production burden has satisfied that burden. (Example: At the close of P's case, the judge decides whether P has come up with enough evidence of negligence that a reasonable jury could find that D was negligent by a preponderance of the evidence. The judge may find that P has done this even though the judge himself believes that it is less likely than not that D was negligent.)

b. Cross-examination of adversary: If the burden of proof on issue A in a civil case is borne by P (as is usually the case), P will have to come up with a witness or real evidence tending to prove that A exists. It will not be enough that P conducts a withering cross-examination of a defense witness' denial of A. (But if it is D who bears the burden of proving A, his cross-examination of P and P's witnesses may be enough for him to avoid a directed verdict against him.)

2. Criminal case: In a criminal case, the prosecution, to satisfy its burden of production on all elements of the case, must come forward with enough evidence on each element that a reasonable jury could find that the element was proved beyond a reasonable doubt. (In other words, the persuasion burden affects the production burden.)

E. Satisfying the burden of persuasion: [561 - 563]

1. Civil cases: On most civil issues, the burden of persuasion must be satisfied by a showing that A exists "by a preponderance of the evidence." That is, the party bearing the burden must show that the existence of A is "more probable than not."

a. Sheer statistics: Most courts refuse to find that this burden has been met by evidence that is purely statistical. (Example: If P testifies that he was hit by a blue bus, and shows that 60% of all the blue buses in the town are owned by D, this will not be enough to meet P's persuasion burden.) Instead, the party bearing the persuasion burden must come up with some evidence that will lead the jury to have an "actual belief" (rather than a mere statistical estimate) in the truth of the fact in question.

2. Criminal cases: In criminal cases, the prosecution's burden of persuasion on all elements of the crime means that these elements must be proved "beyond a reasonable doubt." This is required by the Due Process Clause. In re Winship. (But issues other than elements of the crime may be decided according to a lesser standard. For instance, a confession usually only has to be shown to be voluntary by a preponderance of the evidence.)

II. PRESUMPTIONS

A. Generally: The term "presumption" refers to a relationship between a "basic" fact (B) and a "presumed" fact (P). When we say that fact P can be presumed from fact B, we mean that once B is established, P is established or at least rendered more likely. [563 - 565]

B. Effect of presumptions in civil cases: In civil cases, most courts hold that a presumption has one of two types of effects: (1) a "bursting bubble" effect; or (2) a so-called "Morgan" effect. [565 - 570]

1. "Bursting bubble": Most courts believe that a presumption should be given the following effect: if B is shown to exist, the burden of production (but not the burden of persuasion) should be shifted to the opponent of the presumption. This is called the "bursting bubble" approach, because once the opponent discharges his production burden by coming up with some evidence that the presumed fact does not exist, the presumption disappears from the case, and the jury decides the issue as if the presumption had never existed. (Example: A presumption is established that where a letter has been properly addressed and mailed - the basic fact - the letter will be presumed to have been received by the addressee - the presumed fact. Suppose that P is the beneficiary of this presumption, and that P starts out bearing the burden of proving that D received the letter. If P shows that the letter was properly addressed and mailed, under the bursting bubble view D will have to come up with some evidence that he never received the letter, but once he does so, the presumption will not be mentioned to the jury, which will be told that P has the burden of persuading the jury that D received the letter.)

2. Morgan (minority) view: A minority of courts follow the so-called "Morgan" view, that the presumption should not only shift the burden of production, but also the burden of persuasion, to the presumption's opponent. (Example: On the above letter scenario, once P showed that he properly addressed and mailed the letter, it would become up to D to not only come forward with evidence that he never received the letter, but also to persuade the jury by a preponderance of the evidence that he never received it.)

3. Federal Rules: The Federal Rules adopt the majority, "bursting bubble" view. Under FRE 301, "a presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption, but does not shift to such party the burden of proof in the sense of the risk of nonpersuasion, which remains throughout the trial upon the party on whom it was originally cast."

a. Instructions to jury: Under the majority/federal "bursting bubble" approach, the judge normally will not mention that the presumption exists (e.g., he will not say, "The law presumes that a properly addressed and mailed envelope was received by the addressee unless there is evidence to the contrary"). But the judge has discretion to tell the jury that it may presume P if B is shown.

4. Conflicting presumptions: If a case presents two conflicting presumptions, and neither is rebutted by the opponent, the court will generally apply the presumption that reflects the weightier social policy. If neither presumption reflects a social policy (both merely reflect an estimate of probabilities, or concerns for trial convenience), both presumptions will generally be held to have dropped from the case.

5. Constitutional questions: A civil presumption that is given either the "bursting bubble" or "Morgan" effect presents no significant constitutional issues. But a so-called "irrebuttable presumption" (which is really a substantive rule) must meet the same constitutional standard as any other substantive rule of law - the legislature must have had a rational reason for linking the basic fact to the presumed fact.

C. Effect in criminal cases: The constitutionality of a presumption in a criminal case depends on precisely the effect given to the presumption: [570 -75]

1. Permissive presumptions: A so-called "permissive" presumption (one in which the judge merely instructs the jury that it "may" infer the presumed fact if it finds the basic fact) will almost always be constitutional, so long as the fact finder could "rationally" have inferred the presumed fact from the basic fact, the presumption will be upheld. (Example: The jury is told that where a weapon is found in a car, the jury may infer that each person in the car possessed that weapon. Since the presumption was rational on these circumstances, it was constitutional even though it relieved the prosecution from showing that each D actually knew of or possessed a gun.)

2. Mandatory: But a "mandatory" presumption is subjected to much more stringent constitutional scrutiny:

a. Shift of persuasion burden: If the presumption shifts the burden of persuasion to D, and the presumed fact is an element of the crime, the presumption will normally be unconstitutional. Such a presumption runs afoul of the rule that the prosecution must prove each element of the crime beyond a reasonable doubt. (Example: D, a dealer in second-hand goods, is charged with knowingly receiving stolen goods. The judge tells the jury that a dealer who buys goods that are in fact stolen, and who does not make reasonable inquiries about the seller's title to the goods, shall be presumed to have known they were stolen unless he shows that he didn't know this. Since this presumption has the effect of shifting to D the burden of showing that he did not know the goods were stolen - an element of the crime - it is unconstitutional.)

b. Possibly constitutional: But even a presumption that shifts the burden of persuasion on an element of the crime will be constitutional if the presumed fact flows from the basic fact beyond a reasonable doubt, and the basic fact is shown beyond a reasonable doubt. However, few if any presumptions can satisfy this stringent pair of requirements.

D. Choice of law: In federal diversity cases, the court must apply the presumptions law of the state whose substantive law applies. (FRE 302). (Example: P sues D for negligence in a diversity suit in New Jersey federal court. If New Jersey law controls on the issue of negligence, then New Jersey law on the effect to be given to a presumption that one whose blood alcohol is more than .1% is legally drunk, must be applied by the federal court. Therefore, if New Jersey would apply a "Morgan" rather than "bursting bubble" approach to presumptions, the federal court must do the same.) [575-76]

III. JUDGE-JURY ALLOCATION

A. Issues of law: Issues of law are always to be decided by the judge, not the jury. Therefore, when the admission of a particular piece of evidence turns on an issue of law, it is up to the judge to decide whether the item should be admitted. (Example: W refuses to disclose a statement she made to L, asserting the attorney-client privilege; L is a law school graduate but is not admitted to practice. It is the judge, not the jury, who will decide the legal issue of whether the privilege applies on these facts.) [576]

B. Issues of fact: If admissibility of evidence turns on an issue of fact, the division of labor between judge and jury depends on the nature of the objection: [576-80]

1. Technical exclusionary rule: If an objection to admissibility is based on a technical exclusionary rule (e.g., hearsay), any factual question needed to decide that objection belongs solely to the judge. Thus for factual issues in connection with a hearsay objection, an objection based on privilege, or most issues regarding the Best Evidence Rule, the judge decides.

a. Rules of evidence not binding: Under FRE 104(a), when the judge makes such a finding he is not bound by the rules of evidence except those regarding privileges. (Example: In deciding whether V's out-of-court statement, "X shot me," qualifies as a "dying declaration" exception to the hearsay rule, the judge may consider other, inadmissible, hearsay declarations by V at about the same time that shed light on whether V knew he was dying.) The judge will normally decide such a factual issue by a preponderance of the evidence standard.

2. Relevance: If the objection is that the evidence is irrelevant, the judge's role may be more limited:

a. Ordinary relevance problem: Ordinarily, a relevance objection may be decided without any finding of fact - the judge merely has to decide whether, assuming the proffered fact is true, it makes some material fact more or less likely; this is purely a legal conclusion, so the judge handles it himself.

b. Conditional relevance: In some cases, the proffered evidence is logically relevant only if some other fact exists. If fact B is relevant only if fact A exists, B is "conditionally relevant." It is the jury that will decide whether fact A exists, but the judge decides whether a reasonable jury could find that fact A (the preliminary fact) exists. (Example: P is injured when his tire blows out; D claims that he warned P of the problem. The preliminary fact is whether P heard the warning; the conditionally relevant fact is the warning's contents. The judge will decide whether a reasonable jury could find that P heard the warning; if he decides that the answer to this question is "yes," he will let the jury hear the warning's alleged contents, and it will be up to the jury to decide whether P really heard that warning and its contents.) The judge may allow the conditionally relevant fact into evidence prior to his showing of the preliminary fact; the conditionally relevant evidence is said to be admitted "subject to connecting up." (Example: In the tire blow-out example, D might be allowed to say what the warning's contents were, subject to subsequent proof by some other witness that P really heard the warning. If D does not come up with that later evidence, his testimony about the contents of the warning will be stricken.)

C. Limiting instructions: If evidence is admitted that should properly be considered only on some issues, the judge will on request give a limiting instruction, which tells the jury for what issues the evidence can and cannot be considered. [580]

D. Non-jury trials: [581]

1. Same rules: In general, all rules of evidence applicable to jury trials also apply to bench trials. Thus if an item of evidence would be inadmissible in a jury trial, it is inadmissible in a bench trial.

2. Practical relaxation: On the other hand, appellate courts are generally less strict in reviewing evidentiary rulings made in a bench trial than in a jury trial.

a. "Sufficient competent evidence" rule: Thus even if the trial judge in a bench trial admits inadmissible evidence over objection, the appellate court will not reverse if there was also admissible evidence in the case supporting the findings. The trial judge is presumed to have disregarded the inadmissible and relied on the admissible evidence. (But if the trial judge in the bench trial erroneously excludes evidence, the appellate court will be strict, and will reverse if that exclusion is likely to have damaged the losing party. Therefore, judges in bench trials err on the side of admitting too much rather than too little.)

IV. APPEALS AND "HARMLESS ERROR"

A. "Harmless error": Appellate courts will only reverse if the error may have made a difference to the outcome. An error that is unlikely to have made a difference to the outcome is called "harmless," and will not be grounds for reversal. See FRE 103 (error must affect a "substantial right" of a party). [582-83]

1. Standards for determining: The test for determining whether an error is "harmless" varies depending on the context:

a. Constitutional criminal issue: In a criminal case in which evidence is admitted in violation of the defendant's constitutional rights, the appellate court will find the error non-harmless unless it is convinced "beyond a reasonable doubt" that the error was harmless. (Example: A co-defendant's confession implicating D, given to the police while in custody, and admitted against D in violation of his Confrontation Clause rights, will almost never be found to be harmless beyond a reasonable doubt, and will thus generally be grounds for reversal.)

b. Other errors: But in civil cases, and in criminal cases involving non-constitutional errors, the error will be ignored as harmless unless the appellate court believes it "more probable than not" that the error affected the outcome.

B. Sufficiency of evidence: If the appellate court needs to decide whether the evidence was sufficient to support the findings of fact, the standard will depend on whether the case is civil or criminal: [583-84]

1. Civil: In civil cases, the sufficiency test mirrors the "preponderance of the evidence" standard used at the trial. (Example: If P wins, the appellate court will ask, "Could a reasonable jury have concluded that P proved all elements of his case by a preponderance of the evidence?")

2. Criminal: In a criminal case where D is appealing, the appellate court will ask, "Could a reasonable jury have found, beyond a reasonable doubt, that D committed all elements of the crime?"

Chapter 11 
JUDICIAL NOTICE

I. JUDICIAL NOTICE GENERALLY

A. Function: Under the doctrine of judicial notice, the judge can accept a fact as true even though no evidence to prove it has been offered. In a civil jury case, if the judge takes judicial notice of a fact he will instruct the jury that it must find that fact. [587-88]

B. Three types: The doctrine of judicial notice has evolved to recognize three distinct types of judicial notice: (1) "adjudicative" facts; (2) "legislative" facts; and (3) law. [588-89]

1. Adjudicative facts: Adjudicative facts are those facts which relate to the particular event under litigation.

2. Legislative facts: Legislative facts are more general facts that do not concern the immediate parties. (Example: A judge considering whether to impose an implied warranty of habitability for urban apartment buildings would take notice of legislative facts concerning the low bargaining power of urban tenants.)

3. Law: Judicial notice of "law" relieves a party from having to formally plead and prove what the law is, in certain situations.

4. Federal Rules: The only Federal Rule dealing with judicial notice, FRE 201, deals only with notice of adjudicative facts, not legislative facts or law.

II. ADJUDICATIVE FACTS

A. General rule: At common law, there are two different types of adjudicative facts which may be judicially noticed: (1) those that are "generally known"; and (2) those that are "capable of immediate and accurate verification." A fact will not be found to fall into either of these categories unless the court is convinced that it is virtually indisputable. [589-91]

1. "General knowledge": An instance of "general knowledge" in the community might be that a particular portion of Mission Street in San Francisco is a business district, or that traffic going towards Long Island beaches on Friday afternoon during the summertime is frequently very heavy.

a. Judge's own knowledge: The fact that the judge himself knows a fact to be so does not entitle him to take judicial notice of it if it is not truly common knowledge.

2. Immediate verification: Some of the kinds of facts that are capable of "immediate verification by consulting sources of indisputable accuracy" include: (1) facts of history and geography; (2) scientific principles, and the validity of certain types of scientific tests (e.g., the general reliability of radar for speed detection); and (3) a court's own record of things that have happened in the same or other suits in that court.

3. Federal Rule: FRE 201 treats as being an adjudicative fact any fact that is "beyond reasonable dispute" because it is either: (1) "generally known" within the community; or (2) "capable of accurate and ready determination" by the use of "sources whose accuracy cannot reasonably be questioned." (This basically matches the common-law approach.)

B. Jury's right to disregard: [591-92]

1. Civil case: In civil cases, courts usually treat judicial notice as being conclusive on the issue. Therefore, the judge instructs the jury that it must treat the fact as being so. (FRE 201(g)).

2. Criminal: But in criminal cases, courts usually hold that the notice fact is not conclusive on the jury - if it were, D's constitutional right to a jury trial might be impaired. (FRE 201(g)).

a. On appeal: This means that if the prosecution has failed at trial to ask for judicial notice of a fact, the appeals court may not take notice of that fact.

C. When taken: Most courts hold that judicial notice of an appropriate adjudicative fact may be taken at any time during the proceeding. Thus notice may be taken before trial, or even on appeal (except in criminal cases). (See FRE 201(f).) [593]

III. LEGISLATIVE FACTS

A. General rule: A court may generally take notice of a "legislative fact" (i.e., a fact that does not pertain to the particular parties, but is more general) even though the fact is not "indisputable." [594-95]

1. Standard: Most jurisdictions allow the judge to take notice of a legislative fact so long as the judge believes it to be true, even though it is not indisputable.

2. Examples: (1) A fetus does not generally become viable until 28 weeks after conception (relevant to the constitutionality of state abortion rules); (2) Urban tenants have very little bargaining power (relevant to whether there should be an implied warranty of habitability of city apartments).

3. Federal Rules silent: The Federal Rules, and most state evidence statutes, are silent about whether and when judicial notice of legislative facts may be taken. This is simply an implicit part of the process of deciding cases.

B. Binding on jury: A judicially-noticed legislative fact will be binding on the jury even in a criminal case. (Example: The judge's decision that cocaine falls within the statutory ban on importing "cocoa leaves and any derivative thereof" is binding on the jury.) [595]

IV. NOTICE OF LAW

A. Generally: Judges may take judicial notice of some types of law. When they do so, the consequence is that a party need not plead the provisions of the law, and need not make a formal evidentiary showing that the law is such-and-such; also, the judge may do his own research into the law. [595-96]

B. Domestic law: A judge may always take judicial notice of domestic law. [596]

1. State courts: For a state court, "domestic" law is the law of that state, plus federal law. A state's own law is generally held to include administrative regulations (but usually not municipal ordinances, which must therefore be proved).

2. Federal: In federal courts, "domestic" law is usually held to include not only federal law, but also the law of all states if relevant.

C. Laws of sister states: At common law, one state may not take judicial notice of a sister state's laws; instead, the sister state's laws must be "proved" by submitting evidence as to what that sister state's law really is. (But most states have now adopted a uniform act that allows judicial notice of a sister state's laws.) [596]

D. Law of other countries: The law of other countries may not be judicially noticed, according to most states. Therefore, a party must generally plead and prove such law. [596-97]

1. Federal Rules: But this is not true in the federal courts: FRCP 44.1 allows the judge to conduct his own research on an issue of foreign law (though a party who intends to raise an issue concerning foreign law must nonetheless give notice of this fact in his pleadings).