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Evidence Outline

I. Introduction/Basics a. Course of Trial i. Beginning i. Civil – complaint ii. Criminal – indictment or preliminary hearing ii. Standard of Proof i. Civil – preponderance of the evidence ii. Criminal – beyond a reasonable doubt iii. Pretrial: i. Discovery a. Civil – always b. Criminal – depends on jurisdiction; usually no, unless there is exculpatory evidence ii. Pretrial orders a. Motions in limine – motion to exclude evidence b. 12(b)(6) motion c. summary judgment iii. Procedural Hearings/Meetings iv. Beginning of Trial i. Jury selection: 103(c) – rulings on evidence should be done outside the hearing of the jury ii. Burden of proof: prosecutor/plaintiff iii. Making a record – FRE 103: to preserve an issue for appeal, a ruling must: a. Affect a substantial right of the party b. If ruling admits evidence, a timely objection or motion to strike must appear on the record, stating the specific grounds for objection c. If ruling excludes evidence, there must be an offer of proof on the record v. Case Phases and Scope i. 611 – Mode and Order of Interrogation and Presentation a. Court can control interrogation and presentation of witnesses to: i. Make interrogation/presentation effective for finding truth ii. Avoid needless consumption of time iii. Protect witness from harassment/undue embarrassment b. Scope of cross-examination limited to scope of direct, impeachment c. Leading questions i. Should not be used on direct or redirect ii. May be used on cross iii. May be used on hostile witness, adverse party ii. Opening statements iii. P’s case (defines scope of trial) a. Presentation of witnesses b. Presentation of evidence i. Exhibit numbers ii. The Offer 1. lay foundation 2. opposing counsel may object a. Motion in Limine b. Sidebar iii. Offer of proof (make record) c. 103 – Rulings on evidence i. CTA will not reverse for erroneous ruling on evidence unless: 1. affects substantial right of party 2. if ruling admits: timely objection or motion to strike made stating specific grounds 3. if ruling excludes: substance must be made known by offer of proof ii. Court may add information to record on character of evidence (including offer of proof in Q/A form) iii. Plain error always reversible, even if no objection on record d. 104 – Objections and Preliminary Questions i. FRE (except for privilege) does not apply during preliminary question hearing ii. Does not limit the right of party to introduce evidence to challenge weight and credibility iii. Questions of admissibility generally: 1. Qualification 2. Existence of privilege e. Stipulations i. May be used to try to exclude evidence ii. May be entered into evidence iv. D’s case (within scope of P’s case) v. P’s rebuttal vi. D’s rebuttal vii. Surrebuttal viii.Closing Statements – party with burden always goes last b. Scope of Rules: i. 101 – Scope of Rules i. Federal ii. Bankruptcy (not Art. III courts) iii. US Magistrate judges ii. 1101 – Applicability of Rules i. geographic: DC and US territories ii. type of cases: civil, criminal, bankruptcy iii. Rule of Privilege: super objection – applies to all stages of actions, cases, proceedings; it can be waived, but it will always win if asserted iv. When not applicable: a. Preliminary questions of fact (104) b. Grand jury proceedings c. Miscellaneous proceedings (extradition, sentencing) iii. 102 – Purpose and Construction i. fairness ii. efficiency iii. growth of law of evidence in the name of justice and truth II. Relevance/Judicial Notice a. Relevance – 401 i. Definition: evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence ii. Very low standard iii. Conditional relevance: probative value depends on existence of some matter of fact iv. 402 – Relevant evidence generally admissible; irrelevant evidence inadmissible (except as otherwise provided by Constitution, Act of Congress, FRE, or other rules promulgated by S.Ct.) b. Prejudicial, Confusing, Cumulative Evidence – 403 i. Must substantially outweigh relevance ii. Potentially prejudicial: i. Generally admissible in criminal trial ii. Does not create presumption of guilt or suffice for conviction iii. Examples: i. Evidence of attempt to avoid capture ii. False ID or alias iii. Destroying or concealing evidence iv. Fabricated evidence or suborned perjury v. Witness tampering vi. Attempted escape from detention vii. Attempted bribery of public official c. 105 – Limited Admissibility i. Evidence that can come in for one purpose or party, but not for another purpose or party ii. Court can instruct jury as to scope of evidence State v. Chapple: Victim dead of GSW to head. Only evidence against D was testimony of two “witnesses” who alleged that D was “Dee,” and that “Dee” confessed to them. Issue: During trial, TC allowed P to present graphic photographic evidence of victim’s wounds. Gave limiting instruction. D convicted. On appeal, D argues pictures were inflammatory and were improperly admitted. Rule: Exhibits which tend to inflame must meet two criteria for admissibility: Must be found relevant Court must consider probative value: does it outweigh danger of prejudice? What is the purpose of the offer? Holding: Photos only served to show 1st degree murder, did not prove that D was killer. Should have been excluded.

d. Judicial Notice of Adjudicative Facts - 201 i. Adjudicative facts = facts that a jury could find ii. Facts not subject to reasonable dispute in that they are either: i. Generally known within the territorial jurisdiction of trial court (Silver Spring is within 30 miles of DC) ii. Capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned (What day was Super Bowl Sunday in 2005?) iii. May be done on request by party or sua sponte iv. Hearsay admissible to show preliminary questions of fact v. Opposing party must be given time to object if timely request made vi. May be made at any stage of proceeding vii. Instruction to jury: i. Civil case: a. Jury should accept as conclusive any fact judicially noticed b. Opposing party may make the record that judicial notice is opposed ii. Criminal case: Jury may, but is not required to, accept as conclusive any fact judicially noticed III. Authentication, BER, Opinion, Scientific Evidence a. Authentication – 901 i. Condition precedent to admissibility ii. Need only be sufficient to support a finding that the matter in question is what the proponent claims iii. Purpose of offer matters to authentication: illustrative vs. actual evidence iv. Evidence may be authenticated by “sponsoring witness” or by stipulation v. 902 – Self-identification (extrinsic evidence need not be presented to authenticate) vi. Issues of authentication: i. Chain of custody

United States v. Howard-Arias: “Marijuana Boat Case” USCG arrives at disabled ship, finds substance later found to be marijuana on board. Issue: Chain of custody broken – agent who delivered the drugs from USCG to DEA agent does not testify. Holding: Authentication must only be reasonably complete to convince court that the evidence is what the offering party purports it to be; chain of custody is not “iron-clad requirement.” ii. Tangible objects

United States v. Johnson: P offers ax; victim used to authenticate that it was the ax he was attacked with. TC admits evidence under FRE 901 (evidence sufficient to support finding that the evidence is what party says it is). D convicted. Issue: should court have applied FRE 403 and found that prejudicial value substantially outweighed the probative value? Holding: Reasonable juror could have found that the ax was the weapon based on authentication. D free to offer evidence to challenge weight of authenticating testimony (FRE 104(e)). No abuse of discretion.

iii. Authenticating writings: a. consistent misspellings can be used to authenticate b. Circumstantial evidence can be used to authenticate United States v. Bagaric: D is convicted of racketeering under RICO. On appeal challenges admission of letter purported to be to him from an unindicted co-racketeer. Issue: Was letter properly authenticated if the only method of authentication is circumstantial evidence? Holding: Authentication may be based solely on circumstantial evidence, including “appearance, contents, substance, and other distinctive characteristics.”

iv. Sound recordings a. McMillan factors (not a strict test by any means): i. Recording device was capable of taking the conversation now entered into evidence ii. Operator of device was competent to operate device iii. Recording is authentic and correct iv. Changes, additions, or deletions have not been made in recording v. Recording has been preserved in a manner that is shown to the court vi. Speakers are identified vii. Conversation elicited was made voluntarily and in good faith, without any kind of inducement

United States v. Biggins: D convicted for possessing and distributing heroin. P introduced tape recorded surveillance of sales made within informant’s apartment. Issue: Was sufficient foundation laid? What is required to make an identification of the voice on the recording? Holding: Under 901(b)(5), a witness’s familiarity with the voice sought to be identified, whether familiarity developed before or after the time of the recording, is sufficient for reliable voice identification.

v. Telephone Conversations

United States v. Pool: D convicted for using telephone to facilitate illegal importation of marijuana. Testimony by DEA Agent offered that he had a telephone conversation with a person using D’s nickname. Issue: No recording of conversation, and Agent never met D and never made any comparison between D and caller. D challenges admission. Holding: Insufficient basis for authentication.

b. Best Evidence Rule – 1002 i. To prove the content of a writing, recording, or photograph, the original is required ii. 1001-1002: What is a writing? i. letters, words, numbers…set down by handwriting, type, printing ii. Includes still photos, x-ray film, video tape, motion picture iii. Chattel vs. writing: they become one, and court has discretion to treat as either chattel or writing United States v. Duffy: D convicted of stealing car. When car found, there is a shirt in the trunk with a laundry mark reading “D-U-F.” P seeks to admit what the shirt says, but not the shirt itself. Issue: Since the shirt has writing on it, does BER apply? Holding: Chattel and writing merge, court has discretion to treat as either. iii. 1001(3): What is an original? i. The writing or recording itself, or any counterpart intended to have the same effect by a person executing or issuing ii. Photo: includes negative and any print therefrom iii. Hardcopy from a computer is considered an original of data stored in computer or similar device iv. Independent Knowledge Rule (only applies to BER)

Meyers v. United States: D convicted of suborning perjury in testifying before Senate Committee. Witness to testimony before Senate Committee testified at trial as to what D said before Senate Committee, which was also recorded in a transcript. Issue: Under BER, does P have to admit the transcript? Holding: If witness has independent knowledge, and is testifying as to what was actually said, and NOT what the transcript contained, objection overruled. (This applies to photos, etc.)

v. Duplicates: i. 1003 – Admissibility of Duplicates – admissible to the same extent as original unless: a. genuine question as to authenticity of original b. unfair to admit duplicate in lieu of original ii. 403 – Prejudicial vi. 1004 – Admissibility of Other Evidence of Contents i. Originals lost or destroyed ii. Original not obtainable iii. Original in possession of opponent iv. Collateral matters vii. 1005 – Public Records: copy may be entered if certified and authenticated viii. 1006 – Summaries: may be presented for convenience sake, but originals must be available if court requests c. Lay Opinion – 701 i. Limited to opinions or inferences which are: i. Rationally based on perception of witness ii. Helpful to a clear understanding of witness’ testimony or determination of fact in issue, and iii. Not based on scientific, technical, or other specialized knowledge within scope of FRE 702 ii. Whether or not the witness falls under 701 or 702 depends on purpose of the offer d. Experts/Scientific Evidence i. 702 – Basis i. Scientific, technical, or other specialized knowledge ii. Qualification a. Lay a foundation: resume could be entered as evidence (if authenticated under 901) b. Move for the court to recognize witness as expert c. Could be a preliminary question d. Voir dire: opposing counsel wants to conduct their own examination on qualification i. FRE do not apply (preliminary question) ii. Attempt to show that witness is not qualified, or to limit scope of expertise and testimony e. Knowledge, skill, experience, training, or education iii. Expert can give opinion on the area of expertise if: a. Testimony is based upon sufficient facts or data i. 703: Expert doesn’t have to explain all underlying facts forming the basis of the opinion ii. Basis can come from information heard by expert during the course of trial iii. 705 – underlying facts or data do not have to be presented in advance b. Testimony is the product of reliable principles and methods c. Witness has applied the principles and methods reliably to the facts of the case ii. 704 – Ultimate Issue i. Testimony in the form of an opinion or inference that is otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by trier of fact (except for provisions of subpart (b) – mental state or condition of D in criminal case constituting an element of crime or defense thereto) a. Jury can still reject expert opinion b. Reverses common law rule

Yates v. Texas: Andrea Yates convicted of killing her 5 children. Why we read it: Texas Rule 704 does not include the Hinckley Rule (Subpart (b)) – expert can testify as to ultimate issue of whether or not D’s state of mind fulfilled required mens rea.

iii. 706 – Court appointed experts i. Court may appoint experts sua sponte or by motion of party ii. Payment will come from funds for that purpose or by proportional payment from parties iv. Scientific Evidence i. Frye standard (no longer rule) – scientific evidence only admissible if the principle upon which based is “sufficiently established to have general acceptance in the field to which it belongs” Daubert v. Merrill Dow Pharmaceuticals: Case in CA state court. Drug for morning sickness also caused severe birth defects. Motion for summary judgment. TC grants SJ under the Frye standard. CTA affirmed applying same standard. Issue: Erie question – does FRE supercede or incorporate common law rule? Holding: S.Ct. interprets silence in the test of the rule to mean that Frye was not incorporated in FRE. FRE supercedes. The judge is the “gatekeeper” and has discretion to weigh reliability. ii. Daubert factors: (not a definitive checklist) a. Has the theory been tested? b. Has the theory been subject to peer review? c. Rate of error? d. General acceptance? (not dispositive)

Kumho Tire Company v. Carmichael: Family involved in car accident as a result of tire blowout. D is sued for in federal court as manufacturer and distributor of tires. P offers testimony of an expert in tire failure analysis. TC excluded evidence as unreliable. CTA reversed. Issue: Do Daubert factors apply to all expert evidence or just scientific evidence? Holding: Factors apply to all expert evidence; in this particular case, however, expert’s testimony is unreliable, and the ruling is reversed.

IV. Hearsay a. Introduction i. Common Law: whether or not you intended to make a statement by an action is irrelevant ii. Broad definition Wright v. Doe d. Tatham: Decedent willed all of his possessions to his servant. Will is challenged in court. Servant enters letters from 3rd party to decedent that seem to indicate that he was competent to “handle [his] business.” Issue: Are letters which are not intended to prove decedents competence admissible as evidence of such? Holding: Intention irrelevant, all conduct is hearsay.

iii. Modern View i. 801(c): a statement, other than one made by the declarant at the trial or hearing, offered in evidence to prove the truth of the matter asserted a. Statement: an oral or written assertion OR non-verbal conduct, if it is intended by the person as an assertion i. Negative hearsay: if someone has a responsibility to say something in the event of something happening, and they don’t, this may be evidence that nothing happened

Cain v. George: Boy dies of carbon monoxide poisoning. P’s alleged that a faulty gas heater was the cause. Motel owners testified that they had never received any complaints about the gas heater. Issue: Should this testimony have been admitted? Holding: Testimony merely proved the knowledge of the hotel owners, and was not dependent on the veracity or competency of any other persons; not hearsay.

b. To prove the truth of the matter asserted: goes to purpose of the offer c. We are not concerned with the ultimate issue of the case, only with the issue for which the evidence is offered d. An out of court statement by the witness himself may be objectionable as hearsay ii. 802: Hearsay not admissible unless there is an exception iii. Hearsay concerns: a. We want to see people as they speak b. Cross-examination c. Person doesn’t have time to think up a lie b. Nonhearsay i. Two views: i. Not offered for proof of matter asserted, and are not, by definition, hearsay ii. Exception to the rule ii. Categorical exceptions i. Impeachment by prior inconsistent statement a. One of 5 major types of impeachment b. Statement isn’t offered to show that what declarant said before is true, but rather to show that declarant “blows hot and cold” c. Two uses of prior inconsistent statement: i. Impeachment ii. Substantive (would be hearsay) – 801(d)(1) ii. Verbal Act – act of independent legal significance a. Words have significance and meaning such that they would not be casually uttered; the words are acts; even illegal acts may qualify i. Words of offer/acceptance ii. Words of gift/donation iii. Words of surrender of liability/rights iv. Words of threat iii. Effect on Hearer a. How the hearer reacted must be relevant b. Offered for the purpose of showing how the words caused the listener to act or not to act (as opposed to showing that the words themselves are true) iv. Circumstantial Evidence of State of Mind a. State of mind of the speaker must be relevant b. Note circumstantial evidence vs. direct evidence c. Requires a leap from what is testified to and what the inference is to be drawn (circumstantial) v. Circumstantial Evidence of Memory or Belief a. Not offered to prove that what declarant says is true, but rather to prove that in order to make such a statement, they must have a memory or belief vi. Verbal Object a. Object is deemed to merge with the words on it (similar to BER) b. Often used when words are attached in the course of business; contrast to writing something on an object later (writing in a book) c. Same logic as “chattel” c. Indirect Hearsay i. Testifying Witnesses/Adoption United States v. Check: D convicted of possessing cocaine with intent to distribute. P presented testimony of Spinelli, a detective assigned to investigate D. Spinelli worked undercover through an informant named Cali. Cali refused to testify, so Spinelli’s conversations with him created hearsay problems. On the stand, P asked Spinelli only to recount his end of the conversation with Check, which brought out a lot of information that otherwise would have been excluded. Issue: Should Spinelli’s testimony have been excluded on the basis that it was merely serving as a conduit to get in evidence that would have been hearsay? Holding: Statements were offered to prove the truth of the matter asserted within them (gov’t admitted that Cali’s statements would have been hearsay). As a result, testimony should have been excluded. Look at levels of hearsay. ii. Machines/Animals: Evidence often held admissible (clocks reading time; dogs reacting to drugs or people) iii. Matters Assumed United States v. Pacelli: (Pre-FRE case) Witness for prosecution in a drug dealing case is murdered brutally. In present case, P offers evidence of D’s family’s behavior to show that he was guilty (they all met and were admonishing him for messing up the hit). Testimony could not have been admitted as co-conspirator admission, because conspiracy ended with victim’s death. The purpose was to show jury that other people in D’s family believed he had committed the murder. Issue: Should testimony of others’ belief as to ultimate question of the case have been admitted? Holding: Although P argued that the purpose of the offer was merely to show what the family said, their statements implied knowledge of other facts (namely, that D had committed the murder). These statements are inadmissible because they assume matters that if directly testified to would be hearsay. d. Hearsay within Hearsay – 805: will be admitted if each part of the combined statements conforms to an exception to the hearsay doctrine e. “Nonhearsay” Out of Court Statements under FRE (801(d)) i. Statements are hearsay, but are admissible under an exception (technically refers to them as “exclusions”) ii. First exclusion (801(d)(1)): prior statement by witness (witness must testify) – declarant must testify at trial or hearing, is subject to cross- examination, and the statement is: (one of three sub-exclusions) i. Prior inconsistent statement (narrow exception) 801(d)(1)(A) a. Used for substance (as opposed to impeachment) b. Inconsistent with declarant’s testimony c. Given under oath subject to penalty of perjury i. At trial, hearing or other proceeding, preliminary hearings ii. Or in deposition d. If opponent is offering PIS for impeachment, you can ask for limiting instruction under 105 or 403 State v. Smith: Victim is savagely beaten by her boyfriend. At the hospital she is reluctant to press charges, but ultimately agrees. She tells police that D assaulted her, she was afraid, she didn’t know what to do. She signs a sworn statement to this effect, handwritten, notarized, signed on each page, with Miranda warnings on it. At trial, she admits making statement, but states that she was incorrect in statement. P wants to use prior statement for its substance (not just for impeachment). Issue: Should the “stationhouse statements” get in? Do they qualify as “proceedings?” Holding: Court finds that reliability is key, and unique facts of each case will determine whether prior statement is reliable. Statement is admitted (frequently, however, stationhouse declarations are excluded in federal cases) ii. Prior consistent statements a. Used for rehabilitation: you do NOT need an exception for this i. Happens after impeachment ii. Showing consistency in the past iii. Mere fact of consistency rehabilitates iv. Not offered for its truth b. Substantive use: hearsay exception needed 801(d)(1)(B) i. Witness in court ii. Subject to cross-examination iii. Impeachment requirement still applies iv. Temporal Requirement: consistent statement must have been made before motive to lie arose c. In both cases, must be consistent with the declarant’s testimony

Tome v. United States: Father (D) has custody; mother reports alleged sexual assault on daughter. D alleges that the daughter is making up her testimony because she wants to go live with her mother (impeachment by bias). After cross, State calls several witnesses to rebut D’s cross. These witnesses offer testimony of daughter’s prior out of court statements consistent with her allegations of abuse. Issue: should the statements be admitted as consistent if they were made after the motive to lie arose? Rule: if the statement is offered for its substance, the temporal requirement is incorporated iii. Prior identification 801(d)(1)(C) a. In court vs. out of court i. In court: no exception needed (not hearsay) ii. Out of court: exception needed if identification is offered to prove identity b. Requirements: i. Declarant must testify in court ii. Must be subject to cross AND iii. Statement must be made after perceiving the person; this is interpreted broadly – sight, hearing, other senses State v. Motta: Robbery victim gives description to police right after robbery. She then meets with sketch artist, picks D out of a photo array, and positively identified D in a preliminary hearing. At trial she confirmed her prior identifications and pointed out D in the courtroom. The sketch is admitted as evidence, and D objects. Issues: -sketch is a chattel -statement is actually hearsay within hearsay (FRE 805) – address this (adoptive admission?) -D argues that the sketch is just a prior consistent statement, which should not be admissible because the victim hadn’t been impeached Holding: Sketch is hearsay, because it is being offered as a statement made out of court to prove what the suspect looked like Admissible as long as declarant testifies at trial and is subject to cross, and statement was made after perceiving the person

Res gestae: the words are so connected to an event that they become part of the event; you have no time to lie (excited utterances, present sense impression, etc)

iii. Second exclusion (801(d)(2)): Admission by party opponent i. Basics: a. Always offered AGAINST A PARTY i. Not offered against nonparty ii. Party can’t offer on own behalf b. Covers ANY statement by a party (does not have to be against interest) ii. 5 subcategories: a. Individual admissions – 801(d)(2)(A) i. Party’s own statement either in an individual or representative capacity ii. Possible Exceptions: 1. Drunk? Usually admitted. 2. Severely injured or in a coma? Different views: some allow in unless it “conclusively appears” that declarant is “incapacitated from making a rational admission” (i.e., in a coma); some states have made laws limiting certain statements 3. Asleep? Often excluded 4. Statements by minors? Depends on context, age of declarant, etc Involuntary Admissions in the Criminal Context: Involuntary confessions are barred under 5th Amendment, but only where an agent of the state plays some kind of active role  Confessions to police by severely injured or incapacitated defendants often excluded  Asleep, attached to machines at hospital Guilty pleas: Generally, pleading guilty in a criminal proceeding will be admissible in a civil case arising from the incident Bruton v. United States: One codefendant’s (Evans) confession implicating Bruton (codefendant) is admitted against Evans with limiting instruction that it cannot be used against Bruton Holding: unreliability, compounded with inability to force declarant to testify and lack of opportunity for cross, makes statement inadmissible against co-defendant Limiting instruction is probably not effective and risk of failure is great

b. Silence/adoptive admission – 801(d)(2)(B) i. If declarant manifests his adoption or belief in the truth in the statement of another, it becomes his own ii. Truncates hearsay within hearsay (805) United States v. Hoosier: D tells witness that he is going to rob a bank. After the robbery, witness is with D and D’s girlfriend, and that in the presence of D, the girlfriend said “you should have seen the money in the hotel room.” Issue: is the girlfriend’s statement inadmissible hearsay? Holding: looking at the total circumstances, if a normal person who had not committed the crime would have denied the girlfriend’s assertions, and D did not, then the statement is treated as an adoptive admission. The jury may determine the credibility of these statements. More is needed to satisfy the standard than mere presence and silence of D, but in this case the circumstances supported an adoptive admission

Doyle v. Ohio: Undercover agents gave $1320 to informant to use in a controlled buy with D (Doyle). After the transaction Doyle was pulled over by police, arrested, and Mirandized. At trial he offered some convoluted story about the informant throwing money in his car without him knowing why. Prosecution tries to use the fact that he was silent at arrest and did not explain this to the officer at the time. Issue: can post-Miranda silence be used against D for impeachment purposes at trial? Holding: Post-arrest post-Miranda silence cannot be used to impeach D when he testifies to an innocent version of events

Miranda warning:  Pre-arrest, pre-Miranda silence: admissible  Post-arrest, pre-Miranda silence: admissible  Post-arrest, post-Miranda silence: inadmissible c. Speaking agent’s admission – 801(d)(2)(C) i. Statement of agent specifically authorized to speak about the subject ii. Offered against principal d. Agent speaking on subject w/in scope of authority – 801(d)(2)(D) i. Not specifically authorized to speak ii. Statement of agent or servant concerning a matter within the scope of agency or employment iii. Admission must be made during the relationship Mahlandt: Danny crawls under fence into yard with wolf chained up. Neighbor sees the wolf standing over the boy, but can’t tell if there is biting. (1) The son of the wolf’s owner (who works for a wildlife refuge) runs to mother’s house, and makes a statement that “a wolf got Danny and he’s dying.” (2) Poos (the owner) pins a note to researcher’s door that “Sophie bit a child.” (3) Poos makes a verbal statement to the researcher that “Sophie bit a child.” (4) Abstract of minutes of board meeting concerning “Sophie having bitten the child.” Issue: Since nobody actually saw Sophie biting Danny, should the statements be excluded for lack of personal knowledge? Rules: If you have adoptive admission, you don’t have to go to 805 to each level (compresses levels of hearsay) Court: Poos’ oral statement to researcher is admissible against Poos as an individual admission by adoption of truth 801(d)(2)(A) (he adopted Clark’s statement that ‘a wolf got Danny’) Oral statement and note admissible against Animal Center under 801(d)(2)(D) (agent speaking of matter within scope of employment) Minutes not admissible against Poos: not individual admission, not adopted admission, not statement of agent

e. Coconspirator admission – 801(d)(2)(E) i. Three requirements: 1. Statement of coconspirator of a party (coventurer requirement) 2. In the course of conspiracy (pendency requirement) 3. In furtherance of the conspiracy (furtherance requirement) ii. conspiracy is a separate charge from the charge of the crime (can be charged for both, or either) iii. existence of a conspiracy is a prerequisite to the exception, but a CHARGE of conspiracy is not Bourjaily v. United States: : Drug case. Informant called Lonardo to make a sale. Lonardo told informant that he would bring his friend. D arrived at sale with Lonardo, and was arrested with the drugs and money in his car. Issue: Are testimony of telephone statements between Lonardo and informant regarding “friend” admissible against D? (Preliminary question under FRE 104) Assuming that they would otherwise come in as coconspirator admissions, can the same statements be used to prove the existence of the conspiracy? Do the Rules import the common law rule of admissibility? Common law “bootstrap” rule: conspiracy must be shown using independent evidence Underlying evidentiary question: can you use the evidence in the statement itself to prove the conspiracy necessary to admit the statement under the exception? Rules: Judge decides whether conspiracy requirement is met under 104 by a preponderance of the evidence In making determination, judge may consider the statement as evidence of the conspiracy itself Under later amendment to 801, there must be corroborating evidence to the contents of the statement

Theory of agency law: you cannot have a self-appointed agent (or coconspirator); this rule applies to 801(d)(2)(C), (D), and (E) 801(d)(2): Contents of the statement itself may be considered, but are not alone sufficient to establish: agent’s authority, agency or employment relationship or scope of relationship, or the existence of the conspiracy and participation of declarant Truncating levels of hearsay: 801(d)(2)

f. Evidentiary standard for preliminary questions – preponderance of the evidence g. FRE 803 - Exceptions Applicable Regardless of Declarant’s Availability i. Present Sense Impressions – 803(1) i. Must describe or explain an event or condition ii. Temporal requirement: must be contemporaneous or immediately after iii. Theory: extension of concept of res gestae: you don’t have time to lie, and there is no issue of bad memory ii. Excited Utterances – 803(2) i. Statement relating to startling event or condition ii. Made while declarant was under stress of excitement iii. Caused by the event or condition iv. Theory: you wouldn’t lie or fabricate because you are excited and don’t have time to think about it v. Considerations: a. How much time should be allowed to elapse between event and statement? b. Are statements made under stress actually more reliable? iii. State of Mind – 801(3) i. Basics: a. Statement of declarant as to his state of mind, emotion, sensation, or physical condition (including intent, plan, motive, design, mental feeling, pain, and bodily health) b. Must reflect state of mind at the time of the statement c. Exception does not apply to statements of memory or belief, UNLESS it relates to the execution, revocation, identification, or terms of declarant’s will (because declarant would obviously be dead)

Nuttall: Widow is filing suit under Federal Employers’ Liability Act; her husband died after being forced to come into work, even though he was sick. She offers testimony that she overheard her husband on the phone with his employer, trying to convince him that he was sick. She then hears him agree (against his will) to come in, and after he hangs up, he tells her that he will have to go to work after all. Purpose of the offer: to show that he didn’t want to go in to work, but that the person on the other end was forcing him. (state of mind) There are actually two levels of hearsay here: -Nuttall: why are you forcing me? -George: you have to come in This could actually come in as effect on the hearer or verbal act; imperatives or commands are often not offered to prove the truth of the matter

ii. Hillmon Doctrine – common law rule incorporated into FRE Mutual Life Insurance v. Hillmon: Woman is suing insurance company for life insurance policies. She alleges that the husband was accidentally shot. Insurance companies argue that it is all a scheme, and that the husband’s body is actually this other guy Walker. Insurance company wants to offer letters that indicate Walker’s intent to go out to Crooked Creek, the place where the body was later found. Issue: Should these be admitted to show that Walker was at Crooked Creek? Rule: Declarant’s statements to show state of mind and intent to do a certain act may be admitted to show that the act actually occurred. a. Scope of Hillmon statements: statements that express declarant’s present intent to do a future act offered to show that the act was done (NOT to prove the declarant’s state of mind) b. “I intend to get something to eat,” offered to prove that I ate something (Hillmon exception) c. “I intend to get something to eat,” offered to prove that I was hungry (803 exception) iii. Pheaster Variation United States v. Pheaster: Victim tells his friends that he is going to meet “Angelo” in the parking lot. He goes out there and disappears. At trial for conspiracy to kidnap, prosecution offers this statement to prove that Angelo kidnapped Victim from the parking lot. Issue: can a declarant’s statements of intent be used to prove a Defendant’s actions? Holding: allows the statements in citing the Hillmon doctrine This is NOT the rule under FRE a. Minority rule: some courts won’t let it in at all, some require corroborating evidence b. Statements of declarant’s intent offered to prove Defendant’s actions iv. Statements for purposes of medical diagnosis/treatment – 803(4) i. Requirements: a. Statement must be made for the purpose of medical diagnosis or treatment (theory: declarant wouldn’t lie about their condition if they were making the declaration for the purpose of receiving help) b. Describing certain characteristics: medical history, past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source of such c. Must be reasonably pertinent to medical diagnosis and treatment – there must be a relationship between the statement and the declarant getting treatment ii. Special cases: a. Child Abuse cases: generally this exception won’t allow in statements about fault, but in child abuse cases there may be an exception b. Third Party Statements: if a person cannot speak for themselves, statements made by someone speaking on behalf of the person who would otherwise be the declarant are admissible as statements if they otherwise fall under the exception c. Statements between medical professional for the purpose of medical diagnosis or treatment v. Past recollection recorded – 803(5) i. Circumstances leading to the use of this exception: a. Witness fails to remember critical points b. Has written down what he knew c. Proponent cannot refresh their memory i. FRE 612: Present Recollection Refreshed: witness is permitted to look at the memorandum to refresh memory, the memorandum is then removed and the witness proceeds to testify on the basis of present independent knowledge Baker v. State: Baker was convicted of robbery and first degree murder. When officer Bolton arrived at the scene and was with the victim, he was informed by officer Hucke that they might have apprehended a potential suspect. Office Bolton took the victim to identify the man apprehended (who happened to be Baker) on the way to the hospital and the victim said Baker was not the one. This comes out in a report written by officer Hucke but, at trial, the judge did not let officer Bolton look at the report written by officer Hucke to refresh his memory. Issue: can another declarant’s statement be used to refresh the memory of a witness on the stand? Rule: when used to refresh memory, a writing need not be the statement of the witness testifying and need not be adopted by him; it also doesn’t have to be contemporaneous with the incident in question, and it doesn’t even have to be accurate Competence of the writing is not at issue because the writing is not offered as evidence Opposing counsel may examine the statement, but merely for the purpose of challenging whether or not the statement actually refreshed the witness’s recollection, NOT to challenge the competence of the statement Foundation: all that is required is that the witness has a lack of memory

ii. Compare to Past Recollection Recorded: with refreshing, witness again regains memory; with recollection recorded, they still have no present memory, but testify that at the time the memorandum was drafted, their memory was accurate ii. Requirements: a. Witness lacks present recollection of the matter necessary to allow full/accurate testimony b. Statement accurately reflects the knowledge he once had c. He “made” or “adopted” the statement, and, d. He did so while the matter was “fresh” in his mind iii. Procedure: a. Some jurisdictions may require an attempt to refresh the memory first b. If found admissible, it will be read into evidence only (by a lawyer), unless the party against whom admitted requests the document itself to be admitted Ohio v. Scott: (pre-FRE) Randy Scott convicted of shooting at another with intent to kill and shooting at two police officers. . At trial, the statement of Carol Tackett was admitted in evidence over the objection of the defendant. Ms. Tackett’s statements were admitted after being shown (the jury was not shown) a statement she gave to police following the incident itself. Issue: should the statements have been admitted under the concept of past recollection recorded? Holding: the statement meets the requirements of past recollection recorded because: the statement consisted of facts of which the witness had firsthand knowledge; the written statement was the original memorandum made near the time of the event while the witness had a clear and accurate memory of it; the witness lacked a present recollection of the words used by the defendant in the conversation; and 4. the witness stated that the memorandum was accurate. iv. FRE 106: When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it vi. Records of Regularly Conducted Activity (Business Records) – FRE 803(6) i. What is a business? a. Calling of any kind b. For profit or not for profit c. Legal or illegal ii. Rule also applies to any “regularly conducted activity” iii. Theory of reliability: a. People in the normal course of business have an incentive to be truthful in the records they keep b. People keeping records can’t know how a lie on the records might affect the business in the future iv. Types of records covered is broad, including (but not limited to): company files; medical files; legal files; government agency files (but see FRE 803(8)); files of a hobbyist; ship’s manifest; religious organization’s membership records; PTA board’s financial reports; records of a collector of memorabilia FRE 803(8): For agencies, the records must be either: (1) having to do with the activities of the office or agency; (2) matters observed pursuant to duty imposed by law to which there was a duty to report, but in criminal cases, excludes public records of matters observed by police officers or other law enforcement personnel; or, (3) in civil actions/proceedings OR against the gov’t in criminal court, factual findings resulting from an investigation made pursuant to authority granted by law (unless there is some other reason to believe the records are untrustworthy) v. Foundation: a. Temporal requirement: record must be made at or near the time of the activity recorded b. Must be made by, or from information transmitted by, a person with knowledge (this allows for records produced by secretaries) i. Author need not have personal knowledge, but must have a duty to record the information ii. Information must come from a person with knowledge c. Records must be kept in the regular course of a regularly conducted business activity d. Must be accompanied by testimony of custodian or other qualified person i. Exception: FRE 902(11) or (12) (self identification of certified domestic or foreign records of regularly conducted activity) vi. Absence of Entry – FRE 803(7): may be used to establish that an event did not occur if the event is the type of thing that would ordinarily be recorded Note on FRE 803(7) and (8): always look for FRE 805 problems (hearsay w/in hearsay); not all statements in records kept by a business meet the rule – office correspondence, for example, would probably not qualify, because it is not standard practice to keep records of that sort Petrocelli v. Gallison: Plaintiff has hernia surgery at MGH. After first surgery he has pain, and allegedly the surgeon told P’s wife that he cut a nerve during surgery. (She testifies to this at trial as an admission by party opponent). He then has two more surgeries: P’s want to admit patient records from those surgeries that both mention the severed nerve. Issue: should these doctor’s records be admitted under 803(6)? There is no way of knowing whether the statement that the nerve was severed was actually the doctors’ observations, or just their recording Mr. Petrocelli’s belief that his nerve had been severed FRE 805 issue: is there an exception for each of the 3 levels of hearsay in the case? It could have been argued that the original doctor’s statement was admission by party opponent (801(d)(2)(A); Mrs. Petrocelli recounting this admission to the new doctors as a statement made for purpose of medical diagnosis and treatment (803(4)); new doctors recording Mrs. Petrocelli’s statement in their medical records (803(6)), BUT court doesn’t recognize this b/c P chose not to proceed with this theory of case for strategic reasons Holding: Statements are excluded because there is no way of knowing whether or not they actually came from someone with knowledge Norcon, Inc. v. Kotowski: Sexual harassment case. They basically threaten her with termination if she doesn’t sign a statement saying that she was insubordinate. She is then terminated for consuming alcohol, even though everyone else was consuming alcohol too. Issue: should the subcontractor’s investigator’s report concerning statements of the roommates of the man accused of harassment be admitted as business records? Were they created in the “regular course of business?” D’s argument: even if investigator conducted the investigation in regular course of business, the two roommates were not acting within regular course of business therefore it is hearsay within hearsay, and business records rule does not satisfy both levels of hearsay question: was there a duty for the roommates to report what happened? Holding: Court admits the records, holding that as supervisors and safety employees, the roommates had a duty to report alcohol use and sexual harassment.

vii. Public Records – FRE 803(8) i. Theories of reliability: a. Necessity b. Routine c. Integrity of the position: public officials will do their jobs with integrity ii. Three types of Public Records under the Rule: a. Activities of office or agency (local/state/federal/international) b. Records relating to matters observed: i. Must be observed ii. Must be pursuant to a duty iii. Exception: in criminal cases, matters observed by police officers or other law enforcement 1. Confrontation Clause – D should have the ability to cross-examine declarant 2. Police officers are perceived to be biased c. Facts and findings from official investigations, but only: i. In civil actions/proceedings ii. Against gov’t in criminal cases iii. Foundation: a. Witness (same as business records) b. Self-authentication under FRE 902 Baker v. Elcona Homes: Issue: is the police report of the officer admissible under 803(8)? Holding: yes; they are matters observed pursuant to duty imposed by law as to which matters there was a duty to report, and the case is a civil case Additional issue: inclusion of party’s statement (hearsay w/in hearsay – FRE 805) Holding: they admit it as prior consistent statement, because he had been impeached by the other side United States v. Oates: D was picked up carrying a substance believed to be heroin. Substance was tested by chemist working for U.S. Customs Service, and is found to be heroin. Chemist writes a report on it, and is expected to testify. Unfortunately, he gets ill the day of the trial, and can’t testify. Prosecutor decides to introduce the report along with the testimony of Shirley Harrington, another chemist, who is familiar with the process. She must identify and authenticate under 901. Issue: can the report be admitted as a public record under 803(8)? Holding: no, it violates both (B) and (C) because its criminal case and the report was done by law enforcement Issue: can the report be admitted as a business record under 803(6)? Holding: no; court looks to legislative history and determines that Congress intended to prevent 803(6) from acting as a backdoor to admit evidence that otherwise would not have been admitted under 803(8) viii. Vital Statistics – FRE 803(9): birth certificates, death certificates ix. Absence of Public Record/Entry – FRE 803(10) i. May be used as evidence that the event in question never happened ii. Must be the type of thing that would regularly have been recorded x. Other 803 Exceptions i. Generally: a. Preference for live testimony b. Exceptions backed by assumptions about: i. Reliability ii. Necessity iii. Other policies (e.g. adversarial system) c. Themes of reliability: property statements; religion; personal affairs/history; business; government; long established/widely held ii. Record of Religious Organizations – FRE 803(11) a. Same as business records, but more narrow b. Includes: membership lists, genealogies, burial/gravesite records, christening/birth records c. Requirements: i. Must be regularly kept ii. Must be facts related to personal or family history iii. Record of Marriage, Baptismal, and similar certificates of Religious Organizations or gov’t official or other authorized person – FRE 803(12) a. Requirements: i. Must be authorized by religion or law ii. Temporal requirement (must have been issued at about the time of the act) iii. Maker of certificate must have performed ceremony or administered sacrament b. Narrower requirement than 803(11) c. Offered to prove that the activity occurred Note Comparing (11) and (12):  (12) relates to certificates, while (11) allows statements in any form  (11) requires record to be regularly kept, while (12) does not  (11) is exclusively records of religious organizations, while (12) is not iv. Family Records – FRE 803(13) a. Requirements: i. Statements of facts ii. Concerning personal or family history b. Various types: Bibles, genealogies, charts, engravings on rings/urns/crypts/tombstones, etc v. Records of Documents Affecting an Interest in Property – FRE 803(14) a. May act as proof of the content of the original recorded document, its execution, and delivery b. Recording must be required by statute vi. Statements in Documents Affecting An Interest in Property – FRE 803(15) a. Must purport to establish or affect an interest in property b. Matter stated must be relevant to the purpose of the document c. Dealing subsequent to the record to the contrary may prevent statement from being used Note Comparing (14) and (15):  (14) – record of document  (15) – statement in document vii. Statements in Ancient Documents – FRE 803(16) a. Must be 20 years or older b. Authenticity must be established under 901 viii.Market Reports, Commercial Publications – FRE 803(17) a. Must be generally used or relied upon by public or person in particular professions b. Non-profit publications would be included, even though not for commercial purpose ix. Learned Treatises – FRE 803(18) a. Foundation must be laid b. Must be called to the attention of the expert on cross or relied upon by expert under direct c. May be read into evidence, but will not be received as an exhibit unless the side against whom it is offered insists x. Reputation Exceptions – FRE 803(19)-(21) a. Generally, reputation as to what many people think; the person testifying doesn’t have to know the person to testify to reputation (by contrast to opinion evidence) b. Reputation Concerning Personal or Family History i. Reputation ii. Among person’s family or associates, or in community iii. Concerning person’s family history (birth, adoption, marriage, ancestry, divorce, death, etc) c. Reputation Concerning Boundaries or General History i. Reputation ii. In a community iii. Arising BEFORE a dispute arose (so not infected by it) iv. Regarding boundaries of, or customs affecting, land in the community, and events of general history important to that state or community d. Reputation Concerning Character i. Requires knowledge of what others say, not direct knowledge of the person themselves ii. Character includes personality, tendencies, and attitudes Note on Reputation Concerning Character: there may be other considerations that block character evidence, such as 404 – character evidence not admissible to prove conduct, and 405 – methods of proving character; also, 412-414 (character evidence and behavior in sexual conduct cases) xi. Judgments of Previous Conviction – FRE 803(22) a. Final judgment after a trial or guilty plea b. Felonies only c. May be used to prove any fact essential to sustain the judgment, with the exception of the following, in criminal cases: i. Judgments against persons other than the accused when offered for substantive purposes, unless offered by the defense (although they may be offered by either party for impeachment purposes) xii. Judgment as to Personal, Family, or General History or Boundaries – FRE 803(23) a. Judgments offered as proof of matters of personal or general history or boundaries essential to the judgment b. If the same would be provable by evidence of reputation c. Includes judgments re: adoptions, divorces, etc Evidence of judgments:  The judgment itself  Testimony about the judgment if no Best Evidence problem (doesn’t have to be the judgment itself) xi. Catchall Exception – FRE 807 i. Generally: for statements that are otherwise really reliable that doesn’t fit into one of the other exceptions ii. Requirements: a. Must be offered as evidence of material fact b. Must be more probative on the point for which it is offered than any other reasonably available evidence c. Interests of justice best served by admission of evidence d. Notice to adverse party h. 804 Exceptions: Declarant Unavailable: i. Unavailability is a prerequisite to all exceptions: i. Privilege will satisfy unavailability requirement ii. Refuses to testify despite order iii. Testifies to a lack of memory of subject matter of statement iv. Death, suffering from mental or physical disability that prevents appearance v. Declarant is absent and outside of subpoena power, or is simply not available by any means ii. Former Testimony – FRE 804(b)(1) i. Requirements: a. Testimony given as a witness b. In a hearing or deposition c. If the party against whom it is offered here had both and opportunity or (?) a similar motive (if predecessor in interest) to cross examine the declarant ii. Theory of exception: court reporter has a duty to report, party had opportunity to cross examine iii. Dying Declarations – FRE 804(b)(2) i. Requirements: a. Declarant must believe death is imminent, based on the circumstances: this is a subjective test b. The declarant does not actually have to die or be dying c. Statement must concern the cause or circumstances of the “death” ii. Admissible in homicide cases and civil cases; under CL, only admissible in homicides iii. Theory of exception: people don’t want to die lying for spiritual reasons; consider: injuries or medications may actually make statements less reliable – could be used for impeachment by sensory perception iv. Most dying declarations are also excited utterances iv. Statements Against Interest – FRE 804(3) (not the same as the Admissions Doctrine) i. Requirements: a. Temporal: at the time of making the statement b. The statement is so far contrary to the interest i. Pecuniary or proprietary ii. Subject declarant to civil or criminal penalty iii. Render invalid a claim by declarant against another c. That a reasonable person, in the declarant’s position, would not have made the statement unless they believed it to be true d. Exculpatory statements: require additional corroboration to show trustworthiness ii. Statements implicating 3rd parties: a. Statements can be mildly inculpatory but very exculpatory b. Statements that tend to shift blame seem to be less credible (currying favor) c. Issue: how to strike a balance: i. Introduce the entire narrative? ii. Introduce only those parts against interest? iii. Introduce parts that are against interest and collateral parts? Williamson v. United States: Harris was pulled over for driving erratically, and a search of the car uncovered a large stash of cocaine. He claimed that it belonged to “a Cuban,” and that he was supposed to deliver the cocaine to a dumpster that night. Then he changed his story and said that he was supposed to deliver the drugs to Williamson, who saw Harris get arrested and ran away. There was, however, other proof of Williamson’s involvement, including luggage with his sister’s initials, an envelope addressed to him, and a receipt with his gf’s address. At trial, Harris refused to testify, and his prior statement to the police officers was admitted. Issue: does the statement against interest provision allow statements to come in that implicate third parties? Justices do not all agree: O’Connor (opinion): look at each part of test, only allow in the self-inculpatory statements Scalia (concurring): test each part of test, but everything that is inculpatory gets in (even with collateral information) Kennedy: (concurring w/ Rehnquist/Thomas): collateral statements should come in; really self-serving statements that are currying favor shouldn’t come in Ginsburg (concurring w/ Blackmun/Stevens/Souter): goes to Confrontation Clause – people who are implicated tend to shift blame to others; the whole statement is untrustworthy

State of Law: after Williamson the law is unclear; pay attention to each argument v. Statement of Personal or Family History – FRE 804(4) i. Deals with declarant’s own personal or family history ii. Doesn’t require actual first-hand knowledge iii. May be the statement of another person if they were related or intimately associated with the person/family vi. Forfeiture by Wrongdoing – FRE 804(6) i. Offered against party who ii. Has engaged in wrongdoing which iii. Was intended to make the declarant unavailable, and in fact did so i. Hearsay and the Constitution i. Confrontation Clause i. Introduction: a. Issue: statutory unavailability (under 804) vs. constitutional unavailability under Confrontation Clause (similar to long-arm statute) Barber v. Page: (pre-FRE, pre-Crawford) During a preliminary hearing to find probable cause, one D testified against Barber (co-defendant). Originally, they had the same attorney. Co-D waived his right to self-incrimination; attorney withdraws as his attorney, but continues to be Barber’s attorney. At the time, Barber’s lawyer doesn’t cross-examine the other D (because of attorney-client privilege). At the time of trial, co-D is in prison, and the state just admitted the transcript of his testimony against Barber. Issue: are the Oklahoma state rules on unavailability constitutional? -the state had not attempted to seek his presence; there is a duty to actually make efforts to get the person before court Holding: this is a very BROAD view of CC (compare to Scalia’s narrow view in Crawford) Marshall’s view on Conf. Clause: right of confrontation is a trial right. It includes both the opportunity to cross AND the opportunity for jury to perceive the witness as they are testifying. He does NOT distinguish between testimonial and other types of statements b. Analysis for 804 exceptions: i. Is there an exception under 804? ii. Is there a Confrontation Clause challenge? c. Right to Confront: i. Right to see/cross-examine witness ii. Right to be seen by witness Maryland v. Craig: Child molestation case. Concern was that if the child could see the alleged molester, the child would become frightened. Court arranged to have child testify in front of one-way CC television: D could see child, child could see lawyers, could NOT see D. Issue: is there a right to be seen by witnesses? Holding: Court has already held that there is, but an exception is made for these children Policy: balance rights of accused against interests of the child d. Requirements of Confrontation Clause: i. Unavailability of witness ii. Opportunity to cross-examine 1. Both prior and subsequent are sufficient ii. “Firmly Rooted” and Testimonial Hearsay a. Beginning of Firmly Rooted Doctrine Roberts v. Ohio: Roberts on trial for possessing stolen credit cards and checks. Anita Isaacs had allowed Roberts to use her apartment, and the credit cards/checks were her parents. At the preliminary hearing, the defense called her to the stand to testify that she had not told Roberts that he didn’t have permission to use them. She did not cooperate, and would not testify to what the defense thought she was going to testify to. Although she was subpoenaed, she didn’t show up. The prosecution enters her testimony from the preliminary hearing, and Roberts is convicted. Issue: Should Barber’s broad interpretation of CC still be controlling? (this would uphold Ohio Supreme Ct’s holding that it is a trial right, and testimony should have been excluded) Rule: Two prong confrontation clause test: Unavailability Only admissible if it bears adequate indicia of reliability Develops “firmly rooted” doctrine; essentially cuts off the reliability prong (testimony is per se reliable if firmly rooted) Holding: prior testimony subject to cross is “firmly rooted” Examples (dicta): dying declaration; prior trial testimony subject to cross; excited utterances; statements for medical diagnosis/treatment; coconspirator statement; business/public records; speaking agency exception

Inadi: holds that coconspirator exception is firmly rooted White v. Illinois: Child sexual assault case. Child made statements to mother, babysitter, nurses and others. Court admits statements as excited utterances and statements for medical diagnosis and treatment under state law. Holding: excited utterances and statements for purposes of medical treatment are firmly rooted hearsay -no need to show that the child is unavailable for CC purposes because the statements are firmly rooted This combines Craig and Roberts Holding is not based on the fact that there is a child involved, however, but rather the nature of the statements themselves Scalia and Thomas (concurring in part/in judgment): begin to develop their own CC theory – only applies to testimonial statements

Lilly v. Virginia: Declarant was allegedly involved in a robbery spree with two others including his brother; he was questioned for many hours, and finally made statements implicating himself and others. Statements were later offered at trial against D, but declarant refused to testify. Under VA law, the rule is satisfied because the statement is against interest. Issue: Is “firmly rooted” judged according to a federal or state standard? Rule: SCOTUS finally says how to determine if an exception is firmly rooted: In light of longstanding judicial and legislative experience Exception rests on such a solid foundation that admission of virtually any evidence within it comports with the ‘substance of the constitutional protection’ Holding: Statements were NOT firmly rooted; federal standard applies (?)

b. Roberts overruled? CC only applies to testimonial statements Crawford v. Washington: Defendant stabbed Victim allegedly because Victim tried to rape his wife. Both D and wife were arrested, and were questioned separately. There was some disparity as to whether or not Victim had something in his hands prior to being stabbed by D. At trial, wife is unavailable because of the marital privilege. In Washington, adverse testimony privilege does not apply to hearsay statements, so while she cannot take the stand, her statement can be entered.

Holding: If you have a testimonial statement, then you need to have BOTH unavailability AND the ability to cross-examine.

On Roberts: Roberts is too broad b/c applies CC to all sorts of out of court statements, both testimonial and nontestimonial Roberts is too narrow because it could admit ex parte testimonial statements

Scalia doesn’t clearly define “testimonial statement” – in the context of the case, he says it is clearly testimonial because it was taken by police officers, and she was possibly threatened with charges Holding doesn’t explicitly limit CC to testimonial statements

c. Testimonial vs. nontestimonial statements Davis v. Washington: Woman makes 911 call in which she identifies her boyfriend as her attacker. He runs away, the police show up, and she gives a statement to police officers. At trial, she refuses to testify, and prosecution wants to admit the statement she gave to the 911 operator at trial.

Hammond v. Indiana: Victim handwrites an affidavit describing the attack on her by her husband. She then fails to show up at trial, so prosecution tries to admit the affidavit and have the officer that questioned her testify as to what she told him.

Issue: Are the statements testimonial? If not, does the CC still apply? Rule: Nontestimonial: in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to aid an ongoing emergency Testimonial: Circumstances objectively indicate that there is NO such ongoing emergency, and primary purpose of interrogation is to establish or prove past events potentially relevant to later criminal prosecution

Holdings: Davis – nontestimonial because statement was to aid police in dealing with ongoing emergency Hammond – testimonial, because emergency had passed, and police were interrogating as part of their investigation

Major note in Footnote 4 in the case: Crawford overruled Roberts by restoring the unavailability and prior cross-examination requirements w/ respect to testimonial statements This leads to several questions: What about statements that are not made to police at all? Does the firmly-rooted doctrine apply to anything? Does CC apply to other statements?

d. State of the law after Crawford and Davis i. Various approaches: 1. Testimonial approach revives CC (those who think Roberts was too narrow) 2. Testimonial approach restricts CC as was originally intended (because limited to testimonial statements) 3. Testimonial approach replaces one bad test with another 4. Testimonial approach is a solid outcome ii. New questions: 1. What is testimonial under the facts? 2. Who is a law enforcement officer? 3. When is a person in custody and the discussion formal? iii. Firmly-rooted hearsay is no longer the CC doctrine ii. Constitutional Right to Use Hearsay – Chambers Doctrine Chambers v. Mississippi: McDonald signs affidavit confessing to killing cop. He later repudiates. At trial, D gets the affidavit admitted, and calls McDonald as a witness. McDonald recants the confession. Because Mississippi applies voucher rule which prohibits party from impeaching his own witness (compare: to FRE 607 which allows any part to impeach a witness). D then wants to call 3 witnesses to whom McDonald allegedly confession (horizontal impeachment). Trial court prohibits this, saying Confrontation Clause doesn’t apply because the witness was not adverse to D.

Issue: does the CC permit a D to impeach his own witness if the witness’s testimony is harmful to him? (Due Process challenge, CC challenge)

Rule: sometimes the Constitution requires that hearsay (or other evidence) be admitted even though the Rules forbid it; D can use hearsay if it is exculpatory V. Forbidden Evidence a. Subsequent Remedial Measures – FRE 407 i. Rule: evidence of subsequent remedial measures is not admissible to show evidence of negligence, etc. ii. Theory: we want to encourage people to take remedial measures iii. Permitted uses: show ownership, control, feasibility of precautionary measures if controverted, or impeachment b. Compromise and Offers to Compromise – FRE 408 i. Type of evidence covered: i. Furnishing or offering to furnish or accepting or offering to accept valuable consideration for compromising the claim ii. Conduct or statements made in compromise negotiations regarding the claim, except when offered in a criminal case and the negotiations related to a claim by a public office or agency in exercise of regulatory, investigative, or enforcement authority ii. Prohibited uses: cannot be used to prove liability for, invalidity of, or amount of claim that was disputed, or to impeach through prior inconsistent statement or contradiction iii. Theory: we want to encourage people to settle iv. Examples of permitted uses: proving bias, or prejudice; negating a contention of undue delay; and proving an effort to obstruct a criminal investigation or prosecution c. Payment of Medical or Similar Expenses – FRE 409 i. Prohibited uses: not admissible to prove liability for injury ii. Theory: we don’t want to penalize people for doing the right thing d. Proof of Insurance Coverage (“David Lee Roth Rule”) – FRE 411 i. Prohibited uses: showing negligence or other wrongful act ii. Theory: jury may think it implies guilt; person is more capable of paying; may want to punish insurance company iii. Examples of permitted uses: proof of agency, ownership or control, or bias or prejudice e. Inadmissibility of Pleas, Plea Discussions, and Related Statements – FRE 410 i. Evidence covered: i. Withdrawn plea ii. Nolo contendere iii. Statements made during arraignment iv. Statements made during plea discussion made with attorney for prosecution present ii. Evidence not covered: guilty pleas ARE admissible iii. Prosecutor may require waiver of rights under §410 as part of a plea agreement (Mezzonato) iv. Permitted uses: i. In any proceeding where another statement made within the same course as the plea or plea discussions has been introduced, and the statement should in fairness be considered contemporaneously with it ii. In a criminal proceeding for perjury or false statement if the statement was made by defendant under oath, on the record, and in the presence of counsel. VI. Character Evidence a. Relevance: it is relevant, but is often so prejudicial that special rules serve to exclude it b. Character Evidence Not Admissible to Prove Conduct (The Propensity Rule) – FRE 404 i. Generally: i. Propensity evidence: tendency for someone to do something in conformity with something they did in the past ii. Encourages fact finder to extrapolate from general evidence a conclusion as to what one might have done in a specific situation iii. Not admissible ii. Exceptions: i. Character of the accused (criminal defendants) a. Typically not admissible in civil cases i. Exceptions: FRE 406 (Habit, Routine Practices) b. Evidence of a pertinent trait may be offered by accused c. Accused must offer evidence first (opening the door); P may then offer evidence to rebut (subject to scope rule) d. If accused offers character evidence against victim, P can then rebut with evidence of similar nature against accused e. FRE 403 still applies f. If the accused takes the stand, he becomes a witness, and is governed by FRE 404(a)(3) as well as FRE 404(a)(1) Note on Prior Convictions: If accused takes the stand, prior convictions can come in under FRE 609; if accused does NOT take the stand, then prior convictions can only come in if accused opens the door ii. Character of a “Victim” (criminal cases) a. In a criminal case, evidence of a pertinent trait of character may be offered by accused or by prosecution to rebut the same b. Limited by FRE 412 (Rape Shield Statute) c. In a homicide case, P can present evidence that victim was peaceful and was not first aggressor iii. Character of a “Witness” – Character for Credibility a. Witness: one who takes the stand and testifies (or one whose hearsay testimony is admitted) b. Applies to accused if they take the stand c. Propensity to lie is a form of impeachment, and is governed by impeachment rules FRE 607- 609 i. Reputation for untruthful nature FRE 608(a) 1. Evidence may only refer to character for truthfulness or untruthfulness 2. Evidence of truthful character is only admissible if the witness’s truthfulness has been impeached ii. Specific acts of untruthful nature FRE 608(b) 1. May not be proved by extrinsic evidence (other than conviction for a crime under 609) 2. May be offered on cross concerning the witness’s character for truthfulness/untruthfulness 3. May be offered on cross concerning the truthfulness/untruthfulness of another witness as to which character the witness being cross-examined has testified iii. Convictions for behavior indicating untruthful nature FRE 609 (see Impeachment) c. Methods of Proving Character - FRE 405 i. Does not govern more specific rules (404(b), 406) ii. Only go to this rule if the evidence is admissible under 404(a) iii. Reputation and Opinion (405(a)) i. Reputation a. Strongest (under common law) b. Does not require personal knowledge of the person ii. Opinion – does require person knowledge iv. Specific Acts (405(b)) i. Only allowed on cross – to challenge whether or not a witness knows the person as well as they claim to a. Example: “You testified that Sara was a good person, but did you know that on one occasion she….” ii. Character or trait must be an essential element of a charge, claim or defense a. Examples: hate crimes – you have to show that the person had a hatred of that group; civil cases for defamation, libel d. Character Offered for Reasons Other than Propensity – FRE 404(b) i. Evidence of other crimes, wrongs or acts is not admissible to prove action in conformity ii. May be admissible for the purpose of showing (for example): motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident iii. If requested, prosecutor must provide reasonable notice in advance of trial, unless court excuses pre-trial notice for good cause iv. May be used in civil or criminal cases v. Rule 403 still applies vi. The crime, wrong, or act sought to be admitted must be shown to have been committed by a preponderance of the evidence Huddleston: Issue: Who determines whether a preponderance of the evidence shows that an act was committed, judge or jury? Holding: Judge need not decide by preponderance; simply must determine if evidence is reliable enough to go to jury Question of preponderance is for a jury; conditional relevance e. Habit/Routine Practice of a Person or Organization – FRE 406 i. Need not be corroborated or viewed by eyewitness ii. Relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice iii. A few times does not constitute a habit f. Rape Shield Statute – FRE 412 i. Basics: i. FRE applies to federal law only: sexual assault must have occurred on federally-owned lands/properties; Indian Reservations ii. Does not protect confidentiality; only deals with admissibility in court iii. This Rule is meant to protect the victim, and it may be waived if she offers evidence of her good character (D may rebut) ii. Inadmissible Evidence in civil and criminal proceedings: i. Evidence that victim engaged in any other sexual behavior ii. Evidence of victim’s sexual predispositions iii. Examples: a. Victim took birth control b. Wore short skirts c. Had sex with 4 other men three months before alleged assault d. Liked to “talk dirty” iii. Admissible Evidence in Criminal Case: i. Specific acts to show that another person was the source of semen, injury, or other physical evidence (she had sex with another man the same night) – temporal requirement ii. Evidence the exclusion of which would violate the constitutional rights of the defendant iii. Reputation evidence is not admissible iv. Admissible Evidence in Civil Case: i. Presumption against admissibility ii. Evidence of victim’s sexual behavior or predisposition iii. Must be otherwise admissible and its “probative value substantially outweighs the danger of harm to any victim and unfair prejudice to any party” (contrast this with 403) – balancing test iv. Evidence of a victim’s reputation is admissible only if it has been placed in controversy by the victim v. Procedure to determine admissibility: a. Written notice at least 14 days before trial b. Victim notification c. In camera hearing: victim and parties may speak g. Character of D in Sexual Assault/Child Molestation Cases i. Rules: i. Sexual Assault (Criminal) – FRE 413 ii. Child Molestation (Criminal) – FRE 414 iii. Either of the above (Civil) - FRE 415 ii. Admissible Evidence: i. Prior acts ii. For the purpose of proving propensity or any other matter to which it is relevant iii. No conviction required iv. Violation includes attempts iii. Procedure: i. Government must disclose evidence to D, including a statement of witness or a summary of the substance of testimony ii. At least 15 days before the date of trial VII. Impeachment – attacking the witness’s credibility a. Overview: i. Rules do not specifically mention bias, mental/sensory capacity, or contradiction ii. Methods of impeachment: i. Vertical impeachment: attacking witness during cross- examination ii. Horizontal impeachment: attacking witness using other witnesses iii. Extrinsic evidence other than another witness iii. Rehabilitation i. Redirect to refute points raised during attack or explain behavior ii. Prior consistent statement iii. Subject to 611 – judge’s discretion to limit excursions into side issues iv. You may impeach your own witness – FRE 607 v. Generally, only a witness who takes the stand may be impeached, but see FRE 806: the hearsay evidence of a declarant may be attacked for credibility, even if they do not take the stand b. Definite but non-specific Impeachment: Tell trier why to doubt witness, but not which testimony to doubt i. Bias United States v. Abel: Alleged co-perpetrator testifies against D; in pre-trial hearing, D wants to call witness who was in prison with co-perpetrator, and who will testify that he was lying. P wants to call witness who was in prison with D’s witness, and will testify that they are both members of gang called Aryan Brotherhood, and that he is therefore biased (horizontal impeachment)

Issue: is gang membership probative of bias for the purposes of impeachment?

Rule: Group Tenent: under Brandenberg v. Ohio, you can’t hold someone responsible by association; they actually have to manifest intent or support of illegal activity CTA overturns citing the above rule; holds that the testimony was too prejudicial SCOTUS reverses Holding: Brandenburg only applies to guilt or liability; this only goes to credibility Finds that despite some prejudice, the value of evidence to show bias outweighed prejudice

ii. Sensory and Mental Capacity i. Inadequate opportunity to perceive ii. Under the influence of alcohol, drugs etc iii. Not wearing glasses iv. Others iii. Character for Truthfulness/Credibility i. Prior Bad Acts w/o Conviction – FRE 608(b) a. Limited to cross-examination b. There must be an adequate basis for the accusation c. Specific acts are admissible only as they are relevant to credibility, and are not used for the substantive case d. Allows person to answer questions truthfully without fear that they will be used against him in later prosecution ii. Prior Convictions – FRE 609 a. FRE amended to allow extrinsic evidence; does not need to be during cross b. Type of convictions to be allowed in: i. If the witness is other than the accused: 1. Subject to FRE 403 2. If crime was punishable by death or imprisonment in excess of one year ii. If the witness is the accused: if the court determines that the probative value outweighs the prejudicial value (NOTICE: the word “substantially” is not in this test) iii. Convictions of any witness shall be admitted if it can readily be determined that the crime required dishonesty or false statement by the witness: perjury, forgery, etc c. Time Limit i. Inadmissible if more than 10 years have elapsed since date of conviction or release from prison, whichever is later ii. Court may allow evidence of conviction older than 10 years in upon determination that probative value substantially outweighs its prejudicial effect iii. Evidence older than 10 years only admissible if proponent gives other party sufficient notice to contest use of evidence d. Not admissible if conviction: i. Subject of pardon, annulment, certificate of rehabilitation, AND person has not been convicted of subsequent crime that would also be admissible, or, ii. Subject of pardon, annulment, etc., based on finding of innocence e. Juvenile Adjudications: i. Generally inadmissible ii. In criminal case, may be admitted if: 1. Witness is not the accused 2. Conviction would be admissible to attack credibility of an adult, and, 3. Court is satisfied that admission is necessary for fair determination of guilt or innocence iii. Never admissible against accused f. Pendency of appeal does not render conviction inadmissible Luce v. United States: Holding: If you challenge the admission of a prior conviction, you must testify and be subject to cross and be impeached Otherwise, you have not preserved your appeal; even a motion in limine is not sufficient

iii. Reputation and Opinion – FRE 608(a): same as above in Character Evidence a. Limited to reputation/opinion concerning truthfulness/untruthfulness of witness b. Evidence concerning truthfulness only admissible if witness’s truthfulness has been impeached c. Indefinite but Specific Impeachment: Call into doubt particular points in the testimony of the witness, but do not necessarily reveal the underlying cause i. Prior Inconsistent Statements – FRE 613 i. Distinguish FRE 801(d)(1)(a) from impeachment by prior inconsistent statement a. 801(d)(1)(a) – narrow rule, allows statements to be used substantively ii. Cross or extrinsic evidence OK iii. Requires that witness be permitted to explain prior statements iv. Opposing counsel must be given opportunity to interrogate v. Not applicable to admission by party opponent United States v. Webster: Webster tried for aiding and abetting bank robbery. Prosecution called King as a witness, without knowing how he would testify. Court denied prosecution’s motion for a voir dire. On the stand, King testified to statements that exculpated the defendant. Prosecution then impeached King using prior inconsistent statements made to the police. (These statements were not hearsay because they were not being used for their substance, but it is important to note that there was no hearsay exception under which they could have been admitted).

Issue: should the ability to impeach one’s own witness under 607 be used to get in statements that would otherwise have been inadmissible?

Holding: In general, you can’t Here, there was no bad faith; Prosecution wanted to voir dire, but was denied vi. What is an ‘inconsistent’ statement? a. Total denial b. Forgetful or “forgetful” witness i. Some courts hold that lack of memory is only “inconsistent” if it appears to be feigned ii. Some courts hold that lack of memory is always inconsistent vii. Inconsistent Statements and Miranda Miranda summary: If you are in custody, you must be advised of your rights: right to silence, right to an attorney, anything you say may be used against you  If a statement is taken in violation of that rule, the Exclusionary Rule applies, meaning that the statement cannot be used by the prosecutor in its case-in-chief Harris v. New York: Harris charged with selling heroin to an undercover police officer on two occasions. He admitted knowing the officer, but denied the first occasion, and said that on the second occasion he was selling baking powder so he could make $12. On cross, prosecution asked about some statements that were made to police prior to being Mirandized; Defendant objects as inadmissible on constitutional grounds.

Issue: can the statements be used not for their substance, but for impeachment?

Holding: Yes – if a defendant voluntarily takes the stand and impeaches himself, he should not be able to use Miranda to lie on the stand The Exclusionary Rule is not necessary, because prohibiting the prosecution from using the evidence in its case-in-chief is deterrence enough Contrast Harris and Doyle: In Doyle, evidence of his silence is excluded, because if someone is told to be quiet under the 5th Amendment, you shouldn’t be able to use their silence against them Jenkins v. Anderson: D stabbed and killed Redding. He was not apprehended and finally turned himself in 2 weeks later. At his trial for murder, he contended that the killing was in self-defense. P sought to impeach these statements by admitting his silence (failure to come forward and say this) before.

Issue: Does the use of pre-arrest silence to impeach a defendant’s credibility violate his rights under either the 5th or 14th Amendments?

Holding: Use of pre-arrest silence for impeachment does not violate D’s rights under the 5th amendment Not a violation under 14th amendment: no governmental action induced D to remain silent prior to arrest ii. Contradiction i. May be shown through cross examination or (more commonly) extrinsic evidence ii. Limiting rule: most courts require that contradiction have some sort of relevance independent of its contradictory effect iii. Three types of contradiction: a. Evidence that contradicts and proves a substantive point (preferred) b. Evidence that contradicts and provides some other impeaching effect (i.e. bias) c. Evidence that merely contradicts; this is generally excluded iv. Limited by FRE 403 and 611 d. Collateral Matters i. Religious Beliefs – FRE 610: cannot be used to attack or repair witness credibility VIII. Privileges a. Introduction: i. FRE 1101 – Privilege is the super objection; it applies at all stages of proceedings ii. FRE 501 i. Unless otherwise provided, privilege is governed by common law ii. In civil actions under state law, state privilege rules apply iii. In a case with claims under both federal and state law, court will try to interpret privilege laws w/out conflict; if it is impossible, they will balance policy interests between rules iii. Proposed Rule 502 – Required Reports Privileged by Statute i. A person, corporation, etc., making a return or report required by law to be made has a privilege to refuse to disclose, and to prevent any other person from disclosing, the return or report, if the law requiring it so provides ii. Would not apply to actions involving perjury, false statements, fraud in the return or report, or other failure to comply with law in question iv. Proposed and Rejected Specific Rules of Privilege: treated as common law i. Attorney-Client ii. Psychotherapist/Patient iii. Spousal Privilege iv. Priest/Penitent v. Political Vote vi. Trade Secrets vii. State Secrets/Official Information viii.Informer Identity b. Attorney-Client Privilege i. General Rule: if a lay person in good faith thinks that they are consulting an attorney for the purpose of obtaining legal advice, then privilege would apply United States v. Evans: Evans is indicted and goes with his best friend/family attorney to the office of a criminal attorney. The criminal attorney tells Evans that if his friend stays in the room, there won’t be privilege. Evans insists that his friend stay, and at trial, he is prohibited from asserting privilege over his communications w/ criminal attorney. Holding: even if you are communicating with an attorney, privilege will only apply if you are consulting with that attorney for the purpose of obtaining legal advice in that matter. Although multiple attorneys may consult for one client, in this case the family friend was not acting as an attorney for that situation. ii. What is protected: i. Reflects only what the client says to the attorney, not what the attorney said to the client, unless what the attorney says reflects what the client said ii. Attorney’s communications are protected by Work-Product Doctrine iii. Only the communications are privileged, not the underlying facts iv. There must be a reasonable expectation of confidentiality at the time the communication was made iii. How to assert/waive privilege: i. Privilege must be asserted; it is not assumed ii. Client is the holder; an attorney only may waive privilege while acting as agent for client iii. Waiver must be intentional iv. Privilege and 3rd parties: a. Typically is tied to necessity (e.g. translator, having your young child in the room) b. Agents of client/attorney do not break privilege c. Eavesdroppers do not constitute a waiver iv. Exclusions from Privilege: i. Imminent future crime ii. Contesting will beneficiaries/claimants iii. Breach of duty by lawyer or client (malpractice) iv. Joint clients against one another v. Crime-Fraud Exception a. Using the services of an attorney to commit a crime or fraud b. Attorney need not know about the crime/fraud c. Generally you only need to make a prima facie case that crime or fraud has occurred In re Frank Carter: Monica Lewinsky used her affidavit to defraud, because she lied and said she didn’t have sexual relations w/ Clinton v. Privilege survives death vi. Corporate Clients

Upjohn v. United States: Upjohn is aware that the IRS is investigating them. They hire independent accountants to investigate subsidiaries and payments to foreign national. Independent auditors notify the general counsel. GC conducts investigation by sending questionnaires to lower-level employees. At trial, Prosecution tries to subpoena those communications.

Issue: Which employees are covered by the privilege? Does Work-Product Doctrine apply?

Holding: Control group test does not govern; instead Court applies a “case-by-case” test in which they determine that the communications are covered by ACP. vii. Two tests: i. “Control group” test ii. Covers most employees c. Psychotherapist-Patient Privilege Jaffee v. Redmond: Police officer shoots someone. Afterwards, she receives counseling from a licensed clinical social worker. During the civil trial, the plaintiffs sought to admit statements made by her to the social worker concerning the incident.

Issues: Do the courts recognize a psychotherapist/patient privilege under FRE? Should it be extended to social workers providing therapeutic care?

Holding: Court recognizes psychotherapist/patient privilege, looking to CAN Also hold that the psychotherapist/patient privilege should be extended to cover communications made to social workers in the course of psychotherapy

d. Spousal Privilege i. Basics: i. Under DOMA, applies to married couples only a. Heterosexual b. Full faith and credit not required to states that do recognize other relationships ii. Adverse Testimony i. Holder of privilege: testifying spouse ii. Marriage must be valid at the that the privilege is invoked iii. Policy: not force spouses to testify against one another Trammel v. United States: Trammel is indicted with another person for importing heroine. Moves to sever because State plans to call his wife as a witness. He claims privilege on the basis of spousal confidences. Court denies motion to sever, but limits her testimony to communications made in the presence of a third party and any act she observed (excludes testimony that would be privileged under spousal confidences). He was found guilty. On appeal, he claims that his wife should not have been permitted to testify adversely against him.

Issue: can a D invoke adverse testimony privilege to prevent spouse from testifying against him?

Holding: The testifying spouse alone can invoke the privilege and refuse to testify against spouse. iii. Confidential Marital Communication i. Neither party can waive privilege ii. There must have been a reasonable expectation of privacy and confidence at the time the communication was made iii. Marriage must be valid at the time the communication was made; does not have to be valid at the time the privilege is invoked a. Post-divorce communication will not be protected despite an ongoing sexual relationship between former spouses iv. Exceptions to privilege: a. Ongoing joint criminal activity b. Suits between spouses c. Spouse accused of child molestation d. No reasonable expectation of confidentiality e. Some jurisdictions: long term separations at the time communication was made United States v. Estes: After an initial communication involving stolen money, in which husband told his wife he stole money and poured money on the bed, the wife agrees to tape her conversations with her husband in exchange for grant of immunity. She then testifies to all of his behavior to the grand jury.

Issue: Even if his oral communications to her are privileged, could she have testified to what she observed?

Holding: a spouse can testify to things observed (as opposed to oral or written communication) unless the action was intended to convey a confidential communication between the actor and the observer Linking Privileges:  If someone makes a communication to lawyer, and then goes home and makes the same communication to spouse, no breach in privilege  If spouse and lawyer are in the same room, but the spouses are not jointly represented by the lawyer, there may be a breach in privilege

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