Relevance & general admissibility fre 401—Relevance Defined


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FRE 401—Relevance Defined (any tendency…fact of consequence…more or less likely).

  • Relevance not affected by fact that point can be proved another way. Old Chief v. US (I)

FRE 402—Admissibility (all relevant admissible, except as excluded by FREs, statute, Consts., SCOTUS)
FRE 403—Prejudice, Confusion, Waste of Time (probative value substantially outweighs…)

  • …danger of:

    • unfair prejudice

    • confusion of issues

    • misleading jury

    • undue delay, waste of time, needless presentation of cumulative evidence

  • Standard of Review: Abuse of Discretion

  • Applied:

    • Simple prejudice not enough

    • Details of previous conviction inadmissible where only status at issue. Old Chief (II)

    • Gruesome photos inadmissible where Miss-ID only issue in case, although such photos have other valid uses (proving death, injury location, aggravated circumstances, corroborate or explain witness testimony—still ask if unfair prejudice). State v. Chapple

FRE 104(a)—Questions of Admissibility Generally (prelim questions about witness qualification, existence of privilege, or evidence admissibility…

  • NOT bound by FREs…except w/respect to privilege

  • Burden of Proof: Preponderance

FRE 104(b)—Relevancy Conditioned on Fact (judge can admit either…

  • BEFORE evidence sufficient to support finding that condition fulfilled (“subject to”)

    • Jury instruction

  • AFTER (“upon”)

FRE 106—Remainder of or Related Writings or Recorded Statements (ADVERSE party may request…

  • When offering party introduces writing or recorded statement

  • Introduction of other part or any other writings which ought in fairness be considered contemporaneously.


“In all criminal prosecutions, the accused shall enjoy the right… to be confronted with the witnesses against him.” 6th Am.

Entitles accused to: (1) be in view of witness and hear when testifying, (2) cross-examine
PRE-Crawford CASES
Ohio v. Roberts: Prosecution must try to secure declarant’s availability. If declarant is unavailable, hearsay can come in if:

  1. Firmly-Rooted Hearsay Exception: business records, dying declarations, co-conspirator, public records, excited utterance, medical diagnosis or Tx.

  2. Particularized guarantees of trustworthiness—rather than treating this as a limitation, courts use it as a way to let stuff in.

Roberts devalued over time:

  • Inadi – don’t need unavailability for the coconspirator exception

  • White—don’t need unavailability if exception firmly rooted—excited utterance, medical diagnosis & Tx examined
  • Bourjaily – co-conspirator exception easier to meet. Judge can consider statement itself in determining admissibilty when determining “in furtherance” issue

Crawford v. Washington: Where “testimonial evidence” is at issue, hearsay statements admissible:

  • Declarant UNAVAILABLE  Accused had PRIOR opportunity to cross

  • Declarant AVAILABLE DEFFERRED cross OK

NOTE: Conversation that begins w/purpose of determining need of emergency assistance can EVOLVE into testimonial statements—trial courts must recognize point at which statements become testimonial. Davis v. Washington

  • Must redact or exclude testimonial portions through in limine procedure.

Defining “testimonial” (“such statements are an obvious substitute for live testimony, because they do precisely what a witness does on direct examination…inherently testimonial” Hammond)

  • Statements taken by police in the course of an interrogation—TESTIMONIAL. Crawford v. Washington

  • Statements where primary purpose is to enable police to meet ongoing emergency—NOT TESTIMONIAL. Davis v. Washington

  • NON-testimonial under Davis if: (primary purpose is to

    • Circimstances objectively indicate that primary purpose of interrogation is to enable police assistance to meet an ongoing emergency

      • Declarant described events as they occurred, presence of bona fide physical threat, informal interview

      • Nature of Q&A such that elicited statements necessary to be able to resolve present emergency (rather than just to learn about something that happened in past).

  • TESTIMONIAL under Davis if:

    • Circumstances objectively indicate that there is no ongoing emergency

      • Declarant not in danger, actively separated from defendant, etc.

    • Primary purpose of interrogation is to establish or prove past events potentially relevant to later criminal prosecution.

      • Mirandized, tape-recorded, stationhouse. Crawford (strengthen, but not necessary for something to be testimonial)

  • Can statements made to people other than law enforcement be testimonial?

Interpreting the “opportunity to cross” requirement

  • Prior OPPORTUNITY to cross may be enough, even if didn’t cross when had opportunity. California v. Green (deferred cross) (Preliminary hearing testimony—statement made under oath, accused represented by (same) counsel, oppty to cross, judicial record avail).

    • FRE 801(b)(1)—prior testimony exception—provided D had motive and oppty. to devel testimony by direct/cross/redirect

    • BAD—there are plenty of reasons you wouldn’t cross during prelim, but you’d want to at trial

FRE 802—Hearsay Rule—Hearsay is not admissible, except as provided by these rules or by other rules prescribed by the SCOTUS pursuant to statutory authority or by Act of Congress.
FRE 805—Hearsay within hearsay—Hearsay within hearsay admissible if each part conforms to an exception

  • CANNOT cure other hearsay  admit b/c statement was mad

  • CAN cure other hearsay  admit for truth

FRE 801(a)—“statement” defined

  • oral assertion

  • written assertion

  • assertive conduct—conduct intended by the person as an assertion

    • Non-assertive conduct is NOT hearsay—meant to accomplish something but NOT to effect a communication—Two-step inference, (1) actor’s belief in fact, hence (2) fact.

      • Broad view of hearsay says this can be hearsay.

  • Applied:

    • Indirect Hearsay—HEARSAY—trying to get after unspoken thoughts not asserted in statement. Anna Sofer’s Will, child describing room, US v. Pacelli (murder discussion), US v. Check (tell me what you said w/o telling what he said)

      • Informant Statements—COULD GO EITHER WAY—saying began to investigate accused b/c of informant’s tip could be (State v. Litzau) or could not be (US v. Obi) hearsay.

      • Proving unspoken thoughts

      • ARGUE CIRCUMSTANTIAL EVIDENCE as well for borderline cases

FRE 801 (b)—“hearsay” defined: (1) out-of-court, (2) statement, (3) offered for truth of matter asserted

  • out-of-court—other than while testifying at hearing or trial (other than testimony RIGHT NOW)

statements” that are not hearsay

  • Impeachment (FRE ­­­­___)—NOT HEARSAY—you’re not asking jury to believe that prior statement is true, just want to show that current testimony contradicts).
  • Lying—NOT HEARSAY—not offering statement for truth (Interest in cross? Verbal act?)

    • Only non-parties (w/parties, comes in as admission)

  • Effect on Listener or Reader—NOT HEARSAY—don’t care if statement is true, just want to show effect of hearing/reading the statement. gas leak example

  • Defense Offer of Statements Disclosing Inculpatory Information—NOT HEARSAY—not offering to prove truth, offering as circumstantial evidence of innocence (wouldn’t give this sort of information if believed were doing something wrong).

  • Evidence on Non-Complaint (‘negative hearsay’)—NOT HEARSAY—value derives solely from credit given to testifying witness. Cain v. George (motel heater).

  • Verbal Acts—agreement, contract, perjury, etc.—NOT HEARSAY--only get this if the (fact of) agreement, contract, perjury, etc. is what we actually care about (not that what we care about is merely in one of those things).


  • Verbal Objects—NOT HEARSAY—Circumstantial evidence, object isn’t making a statement, just so happens that words are part of the chain of inferences. Eagle’s Rest mints, ABC truck (could just as well have a red dot).

  • Circumstantial Evidence of State of Mind—ARGUE NOT HEARSAY—not saying that statement is true, just want to show speaker’s state of mind. Anna Sofer’s will, Betts v. Betts (child statement that stepfather killed brother admissible in child custody proceeding to show state of mind would strain relationship w/mother).


  • Circumstantial Evidence of Memory or Belief—ARGUE NOT HEARSAY—not offering to prove this is the way something did happen, just want to show memory or belief. Child describing room (would prolly admit picture to show what room actually looked like).


FRE 801(d)(1)(A)—Prior Inconsistent Statements by Witness—NOT hearsay, can use substantively

  • Requirements:

    • declarant must testify at trial

    • declarant must be subject to cross about the statement at trial

    • prior statement was given

  1. under oath & subject to penalty of perjury,

  2. at trial, hearing, or other proceeding, or in a deposition.

  • Applied:

    • “other proceeding”

      • Station-house declarations—HEARSAY—most federal cases exclude

        • BUT SEE State v. Smith (WA—other proceeding, so NOT HEARSAY)

      • Administrative proceeding—DEFINED NOT HEARSAY

        • US v. Castro-Ayon (9th C) (witness often have more legal rights than GJ)

        • BUT SEE US v. Day (6th C) (refusing to follow Castro-Ayon—state. under oath to IRS agent doesn’t qualify)(more like stationhouse though?)

      • Preliminary Hearing—DEFINED NOT HEARSAY

      • Grand Jury—DEFINED NOT HEARSAY

        • Accused does NOT have prior opportunity to cross here.

    • Memory Loss

      • Feigned—DEFINED NOT HEARSAY—b/c is said to be inconsistent

        • US v. Williams (7th C) (particularly where manifest reluctance to testify)
      • Honest—DEFINED NOT HEARSAY—inconsistent w/prior positive statement

        • BUT SEE JUR of CA—say have to be feigned to be inconsistent

      • Witness not remembering subject of statement?

        • CAN TESTIFY—US v. Owens (SCOTUS) (can be “subject to cross” even if lack memory of subject matter of statement)

        • BUT SEE US v. DiCaro (7th C) (cross req shouldn’t be made “effectively meaningless”)

      • As Substantive evidence?

        • NO—State v. Amos (Minn); People v. Rios (CA); People v. Simmons (CA); US v. Torrez-Ortega (10th C).

        • Not all JURs say no, though.

FRE 801(d)(1)(B)—Prior Consistent Statements by Witness—NOT hearsay, can use substantively

  • Requirements:

    • declarant must testify at trial

    • declarant must be subject to cross about the statement at trial

    • express or implied charge of…

      • recent fabrication, improper influence, improper motive—

        • Improper motive can’t be present when when prior statement made. Tome v. US

  • What kind of attacks DO qualify?

    • EXPRESS charge of fabrication

    • IMPLICIT charge of fabrication

  • What kinds of attacks DON’T qualify?

    • Attacks on character for truth

    • Bias in favor of one party

    • Witness incapacity

    • Impeaching attack that simply contradicts
  • Substantive Use, or just to Rehab?

    • Common law said only to rehab (now can use substantively)

    • Two possibilities under Tome:

  1. Can only use for both—have to satisfy Tome to get statement in, but once you do, you can use it for whatever you want.

  2. Can use just to rehab OR for both—can use to rehab w/o satisfying Tome, but if you can satisfy Tome you can use it substantively too.

    • “Just to rehab” uses:

      • Rebut claim of faulty memory

      • Put seemingly inconsistent statement in context

      • Rebut improper motive claim where motive was just weaker.

FRE 801(d)(1)(C)—Statements of Identification—NOT hearsay, can be used substantively

  • Requirements:

    • declarant must testify at trial

      • declarant/identifier must themselves testify.

    • declarant must be subject to cross about the statement at trial

      • Only have to be crossable about statement, NOT prior event. US v. Owens (doesn’t violate Confrontation Clause, even though declarant can’t remember event).

    • Prior identification must be a statement must be one of identification of a person after perceiving them

      • Composite sketch—can be hearsay, but DEFINED NOT HEARSAY if requirements satisfied. State v. Motta

FRE 801(d)(2)—Admission by Party-Opponent---NOT hearsay, can be used substantively

  • Requirements:

    • Offered against a party and…

    • (A) is party’s own statement

    • (B) party has manifested adoption or belief in its truth

    • (C) by a person authorized by the party to make a statement concerning the subject

    • (D) by party’s agent or servant concerning matters w/in the scope of employment, and made during the existence of the relationship.

    • (E) by coconspirator made during the course or in the furtherance of the conspiracy

  • Applied:

    • Doesn’t have to be against interest when made (CHECK THIS)

    • (A)—Party’s Own Statement

    • (B)—SILENCE—adoption/belief in truth

      • Factors showing manifestation of belief in truth (US v. Hoosier)

        • Made in presence of party saddled w/admission

        • only declarant, party and party’s girlfriend present when statement made

        • party trusted declarant in past

        • probable human behavior.

      • Factors (generally—SG gave in class)

      • and Miranda—may be admissible to impeach (wouldn’t make sense to admit for truth)

        • Post-Arrest, POST-MIRANDA silence CANNOT be used to impeach. Doyle v. Ohio.

        • PRE-ARREST silence CAN be used to impeach. Jenkins v. Anderson (Miranda warning is what makes it unfair to use silence against accused)

        • POST-arrest, PRE-Miranda silence CAN be used to impeach. Fletcher v. Weir

    • (C)—person authorized by party

      • Can consider statement itself in establishing authority, BUT statement alone is NOT enough. FRE

      • SG says:

        • public relations person, high official, lawyers & other agents (NOT in settlement context), others specifically designated.

      • Employer’s statements against itself NOT admissible against employees. Mahlandt v. Wild Canid Survival and Research Center.

      • Lack of knowledge/basis for statement NOT reason to exclude (goes to weight). Mahlandt.

    • (D)—agent or servant

      • Can consider statement itself in establishing agency or employment relations, BUT statement alone is NOT enough. FRE

      • Employer’s statements against itself NOT admissible against employees. Mahlandt v. Wild Canid Survival and Research Center.

      • Lack of knowledge/basis for statement NOT reason to exclude (goes to weight). Mahlandt.

    • (E)—coconspirator

      • Can consider statement itself in establishing existence of conspiracy or declarant and party’s participation in the conspiracy, BUT statement alone is NOT enough. FRE

      • Judge makes threshold determination of (i) whether there was a conspiracy, and (ii) scope of that conspiracy (what it was a conspiracy to do)—w/o deciding this, there’s no way to determine whether statements were made during the course and in the furtherance of it. Bourjaily v. US

Abuse of Discretion review
FRE 803—Hearsay Exceptions—Availability of Declarant Immaterial

  • (1) Present Sense Impression

  • (2) Excited Utterance

  • (3) Then Existing mental, emotional, or physical condition
  • (4) Statements for purposes of medical diagnosis and treatment

  • (5) Recorded Recollection

  • (6) Records of regularly conducted activity

  • (8) Public records and reports

FRE 803(1)—Present Sense Impression

  • Requirements: A statement…

    • describing or explaining an event or condition

    • while the declarant was perceiving the event or condition, OR

    • immediately thereafter.

      • temporal requirement

  • Applied:

    • admissible where wife gave testimonial account of deceased husband’s conversation that witness overheard with boss. Nuttal v. Reading Co. (heard husband characterize his boss’ statement at the very moment boss made the statement and immediately after).

    • admissible to prove compulsion where decedent said he wasn’t feeling well, and had requested day off but was denied. Nuttal v. Reading Co.

  • Hearsay problems reduced—memory, veracity (only somewhat—don’t have time to concoct story)

  • Hearsay problems still existing—veracity, perception, ambiguity

FRE 803(2)—Excited Utterance

  • Requirements: A statement…

    • relating to

    • a startling event or condition

    • made while the declarant was under stress of excitement

    • caused by perceiving the event

  • Applied:

    • “under stress of excitement”—NO temporal requirement

      • Excitement can be long-lasting. US v. Iron Shell (statement 45-90 minutes after sexual assault admitted).
      • Excitement can be rejuvenated

      • Independent evidence of excitement—some courts say you need, some say you don’t.

    • Statements in response to open-ended questions can be okay. US v. Iron Shell After Crawford???

    • Statements identifying perpetrator of crime

      • 911 calls had been admitted, but unlikely that they survive Crawford

    • Accused’ comments while committing criminal act. SG says

    • Observations of vehicles prior to accidents. SG says

  • Testifying witness has generally seen event as well

  • Hearsay risks reduced—veracity, memory (maybe--timing)

  • Hearsay risks still existing (possibly aggravated)—ambiguity, perception, memory (maybe--timing)

FRE 803(3)Then existing mental, emotional, or physical condition

  • Requirements: A statement…

    • of the declarant’s then existing: state of mind, emotion, sensation, or physical condition

    • but NOT a statement of memory of belief to prove the facts remembered

    • unless it relates to the execution, revocation, identification, or terms of declarant’s will.

  • Applied:

    • Then-existing SENSATION or PHYSICAL condition (pain, bodily injury)

    • Then-existing MENTAL or EMOTIONAL condition (plan, motive, design, mental feeling)

    • PLAN:
      • CAN be introduced to show what a person intended to do. Mutual Life v. Hillmon.

      • Likely CANNOT introduce to show what a person intended to do with another person. US v. Pheaster (9th Cir) (these statements are really two statements in one—(1) declarant’s intention, (2) other person’s intention)

        • BUT SEE—ACN (“only his future conduct, not the future conduct of another person”), and Hillmon leave this a little unclear—cases go both ways, up to attorney’s arguments


          • need for statement (declarant missing?)

          • corroborating circumstances?

          • statement clarity

          • recency of implied agreement

        • NOTE: in these cases, we’re implicitly crediting declarant’s memory of an arrangement that will allow them to do something in the future with another person).

      • CANNOT use retrospective inferences to prove what happened in the past. Shepard v. US (“Dr. Shepard has poisoned me.”)

  • Can come in even if state of mind, emotion, etc. is not a fact of consequence, if they are probative on a fact of consequence. Hillmon (intent to go to Creek probative on identity of body at creek). Applies in crim and civ.

  • SEE SG’S EXAMPLES (in long outline)

FRE 803(4)—Statements for purpose of medical diagnosis and treatment

  • Requirements: Statements made…

    • for purposes of medical diagnosis OR treatment, AND

    • describing

      • medical history,

      • past or present symptoms,

      • pain or sensations,
      • the inception or general character of the cause or external source thereof

        • CAN include identifying perpetrator in sex abuse cases (SEE BELOW)

    • in so far as reasonably pertinent to diagnosis treatment.

  • Applied:

    • BY whom?

      • Person themselves

      • Parents (sometimes)

      • Friends (sometimes)

      • Good-Samaritans (sometimes)

    • TO whom?

      • doctor / medical professional

      • SOMETIMES—childparentmedical provider, OR adultspousemedical provider

    • “reasonably pertinent to diagnosis or treatment”:

      • Identity of abuser in sex abuse cases can be “reasonably pertinent” Blake v. State (Wyo.)

        • Wyoming test:

          • declarant’s motive in making statement about diagnosis or Tx.

          • content of statement is reasonably relied on by physician in diagnosis or Tx

        • Minor children not able to protect themselves—may be sent back to abusive environment.

        • PROBLEMS: (1) ACN says statements of fault don’t normally count, (2) “diagnosis” and “treatment” not concepts that readily embrace steps like removing child from home.

803(5)—Past Recollection Recorded

  • Requirements:

    • memorandum or recording concerning the matter

      • likely won’t satisfy “other proceeding” under 801(d)(1)(A)

    • about which the witness once had knowledge

    • but now has insufficient recollection to be able to testify fully and accurately [common law said NONE]
    • shown to have been adopted by the witness

    • when the matter was fresh in the witness’ memory

    • shown to reflect that knowledge correctly

      • ODD for witness who can’t recall underlying events to be able to testify that statement reflects their forgotten knowledge correctly—come courts say that saying wouldn’t have written/adopted statement if where untrue is enough.

  • Applied:

    • Will come in as an EXHIBIT, but NOT be admitted to EVIDENCE unless opponent waives objection

      • DON”T be like Ohio v. Scott (admitted into evidence over defense objection)

      • DANGERS: jury may give statement undue weight and place special emphasis on recorded facts if admitted into evidence.

    • Steps to take if a witness doesn’t remember: DO THESE (don’t be like Ohio v. Scott)

      • first—leading questions

      • then—present recollection revived (have read exhibit, then take it back)

      • finally—FRE 803(5) (witness no longer testifying from memory)

    • FRESH in the witness’ memory”—CONSIDER:

      • gaps or qualifications on face of statement (reflecting incomplete/uncertain memory)

      • relative importance of matters described in speaker’s life

      • matters’ nature may be such that likely would be fresh longer

      • matters may be so complex/detailed that would likely be forgotten quickly

      • indications of care or attention in the statement (written by speaker? correctness? vagueness?)
    • Does not violate Confrontation Clause in criminal cases. Ohio v. Scott (Statement to police shortly after friend confessed admissible—shot someone/theater)

      • Dissent in Ohio v. Scott says this is problematic b/c

      • Still okay under Crawford? YES—CB says probably b/c declarant can be crossed at trial—

        • Can witness who does not remember the events described in her statement can adequately be crossed? YES—liken to cross requirement for statements of IDENTIFICATION under 801(d)(1)(C)—only have to be crossable about statement, NOT prior event. US v. Owens (doesn’t violate Confrontation Clause, even though declarant can’t remember event).

FRE 803(6)—Records of regularly conducted [business] activity

  • Requirements:

    • memorandum, report, or data compilation, in any form, OR

    • acts, events, conditions, opinions, or diagnoses

    • made at or near that time

    • by a person with knowledge (of matters in the record) OR from information told to the person who made the record by someone with knowledge

    • if kept in the regularly conducted business activity,

    • AND if it was the regular practice of the business activity to make the (item from first list)—as shown by the custodian or other qualified witness…

    • UNLESS the source of the information or the method or circumstances of the preparation indicate lack of trustworthiness

      • NOTE—drafters said Judge CAN exclude if perceives untrustworthy (not just to weight).

    • Business” (whether or not for profit) business, institution, association, profession, occupation, calling of every kind

  • Applied:

    • CAREFULL—these often include inner hearsay—Exception for each? Do we know how recently info was relayed from knowledgeable person to one who made record?. Norcon, Inc. v. Kotowski (AK)

    • Untrustworthy where no indication of information source. Petrocelli v. Gallison (1st C) (med rec).

    • Accident reportPalmer v. Hoffman (NOT admissible b/c not kept in regular course) SG says: read this as fact-specific holding, NOT categorical rule—should do case-by-case analysis based on trustworthiness.

      • May offer management info on which they act BUT not typical of entries made systematically or as matter of routine record

FRE 803(8)—Public Records and Reports

  • Requirements:

    • records, reports, statements, or data compilations, in any form

    • of public offices or agencies

    • setting forth

      • (A) the office/agency’s activities

      • (B) matters observed pursuant to duty imposed by law, as to which there was duty to report

        • EXCLUDING—in criminal cases—by police and other law enforcement personnel

          • [poor drafting—are we really not going to allow accused use in their defense?]

      • (C) in civil actions and proceedings against the government in criminal cases

        • factual findings resulting from investigation made pursuant to authority granted by law.

    • UNLESS sources of info or other circumstances indicate untrustworthiness

      • NOTE—drafters said Judge CAN exclude if perceives untrustworthy (not just to weight).

  • Applied:

    • CANNOT get something in under 803(6) that’s inadmissible under 803(8). US v, Oates suggests this.

    • Lack of Knowledge by maker—maybe admissible. Johnson v. Lutz (NY)—police report inadmissible b/c rested on statements by onlookers even though statute said “lack of knowledge by entrant or maker” go to weight. ARGUE ON EXAM that should go to weight, rather than admissibility (analogize to FRE 803(6), which says can admit record compiled by one from knowledge relayed to them.

    • factual findings”

      • Opinions CAN be “factual findings” (can be made by preparer from disputed evidence). Baker v. Elcona Homes Corp. (16th Cir.) (Valiant/Semi accident—(1) Valiant had red, (2) Semi-driver’s quote that couldn’t see light but talking about seeing Valiant, tending to indicate it was negligent.) Beech Aircraft Corp. v. Rainey (SCOTUS) (opinions okay).

    • Trustworthiness—look at:

      • Generally (Baker v. Elcona Homes) (case examined police report’s trustworthiness)

        • timeliness

        • experience & skill

        • motivational problems

      • Agency Findings (Zenith Radio Corp. v. Matsushita Electric Industries Co.)

        • finality of agency findings

        • extent to which findings rest on inadmissible evidence (supplied by interested parties)
        • where hearings employed—extent to which appropriate safeguards applied/observed

        • extent to which findings express policy judgment rather than factual adjudication

        • extent to which findings rest upon other bodies that may be suspect

        • where findings based upon expert opinion—extent to which facts or data upon which opinion is based are reasonably relied on by experts in the field.

    • Records reciting statements by 3d persons to preparer of record:

      • CAN admit under 803(8)(B) as “matter observed” to prove they were said to person who made record. Baker v. Elcona Homes (statement by truck driver to cop about Valiant)

      • BUT CANNOT admit for truth unless you have another exception (inner hearsay). Baker v. Elcona Homes (for truth of statement made to cop by truck driver—about Valiant’s behavior).

        • If there’s no other exception, can still use to impeach if 3d person testifies inconsistently

    • Reports by Crime-lab Chemists (who are not available to testify—if they’re there, they’re qualified as experts and allowed to say what they perceived and concluded.

      • 803(8)(B)—ARE “other law enforcement personnel”—matters they observe can’t come in against defendant in criminal case. US v. Oates

      • 803(8)(C)—if D wanted to admit—argue they’re part of an official investigation

Type of Report









(A) Activities of public office





(B) Matters observed and reported pursuant to duty by public employees other than law enforcement personnel





(B) Matters observed and reported by law enforcement personnel pursuant to a legal duty




No—even though doesn’t make sense

(C) Factual findings from official investigations





FRE 804—Hearsay Exceptions—Declarant Unavailable

  • (a)—“unavailable” defined

  • (b)—the following are NOT excluded by the hearsay rule if the declarant is unavailable as a witness

  • (b)(1) Former Testimony

  • (b)(2) Statement under belief of Impending Death

  • (b)(3) Statement Against Interest
  • (b)(4) Statement of Personal or Family History

  • (b)(6) Forfeiture by Wrongdoing

FRE 804(a)—“Unavailable” defined—includes situations in which…

  • Privilege (a)(1)—declarant is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant’s statement, or

  • Refusal (a)(2)—declarant persists in refusing to testify concerning the subject matter of the declarant’s statement despite a court order to do so, or

  • Lack of Memory (a)(3)—declarant testifies to lack of memory of the subject matter of their statement

  • Death or Illness (a)(4) —is unable to be present or testify at the hearing because of death or then existing illness (physical OR mental) or infirmity.

    • Illness must be severe—minor ailment from which speedy recovery expected is not enough.

  • Proponent Unable to Procure (a)(5)—absent from hearing and proponent unable to procure attendance by process or other reasonable means.

    • Proponent MUST make reasonable effort to secure attendance. Barber v. Page (Confrontation is essentially a trial right) (declarant in prison in another state, prosecution does nothing to try to bring him to testify, then offers his preliminary hearing testimony)

Memory loss and cross-examination—the 804(a)(3) / 801(d)(2) PARADOX

  • About “the subject-matter of the statement”—about the underlying event the statement is about.

  • About “the statement”—about making the statement, but not about the underlying event the statement is about.

  • 804(a)(3)—witness declared unavailable when they are unable to testify to the SUBJECT MATTER of the statement

  • 801(d)(1)—witness only has to be crossable about statement, NOT subject matter. US v. Owens

  • How do we feel about this? Should “about the statement” satisfy the Confrontation Clause.

Barber v. Page says Confrontation is essentially a trial right.

FRE 804(b)(1)—Former Testimony (declarant unavailable)

  • Requirements: Testimony given…

    • as a witness in another hearing (same proceeding or other proceeding)

    • OR deposition taken in compliance with law (in course of same or different proceeding)

    • AND prior (i) opportunity, and (2) similar motive to develop testimony by direct, cross or re-direct.

      • CRIMINAL—actual party against whom offered has to have had this

      • CIVIL—party OR predecessor in interest has to have had this

  • Applied:

    • predecessor in interest”
      • No privity necessary as long as parties share sufficient community of interest. Lloyd v. American Export Lines, Inc. (3d C) (Lloyd and Alvarez got into fight. Lloyd crossed at administrative proceeding by Coast Guard attorney—ct says Coast Guard and Alvarez’ attorney in civil suit had sufficient community of interest in crossing Lloyd). Did they?

        • ALSO ARGUE you should have to have PRIVITY—SG says Lloyd holding is a stretch when you look at legislative history (dissent in Lloyd points out), and that it seems should be read narrowly to require privity.

FRE 804(b)(2)—Dying Declaration (declarant unavailable)

  • Requirements:

    • CRIMINAL—In a prosecution for homicide…

    • CIVIL—In a civil action or proceeding…

      • FRES extended to civil—used to just be in criminal cases

    • statement made by declarant while declarant under belief that death was imminent

    • concerning the cause or circumstances of what declarant believed to be impending death.

  • Applied:

    • How imminent? “settled hopeless expectation” / “without hope of recovery and in the shadow of death” / “consciousness of swift and certain doom.” Shepard v. US (SCOTUS) (“Dr. Shepard poisoned me”—none of doctors thought declarant was seriously ill at time of statement).

FRE 804(b)(3)—Statement Against Interest (declarant unavailable)

  • Requirements: A statement which…


    • so far contrary to declarant’s pecuniary or proprietary interests, OR

    • so far tended to subject the declarant to civil or criminal liability, OR

    • so far tended to render invalid a claim by the declarant against another,

    • that a reasonable person in the declarant’s position would not have made the statement UNLESS BELIEVING it was true.

  • Applied:

    • Disclosure doesn’t have to be to law enforcement—idea is that you won’t spread this kind of info about yourself if untrue, even if you don’t think cops will find out.

    • Must look at statement in-CONTEXT (“I owe you $1,000” hypo—renders invalid a claim/against pecuniary interest if claim is for $1,000, but is not against interest if claim is for $5,000).

    • Statements INCULPATING accused (and likely exculpating declarant)

      • Do not have to be corroborated—some argue they should have to be b/c of Confrontation Clause

      • Williamson v. US:

        • Collateral parts of statements can’t be admitted under 804(b)(3) only self-incriminating parts can be—collateral-neutral and collateral-self-serving parts excluded

          • under this standard, in a prosecution against A and B for conspiracy to murder X, A’s statement that “I killed X” would be admissible.

        • Kennedy’s concurrence: would not automatically exclude collateral parts of statements but would look at each statement and exclude statements that are “so self-serving” as to be “unreliable” and statements to authorities to curry favor.

        • Ginsburg’s partial concurrence: Would throw it all out b/c declarant is talking to law enforcement and statement is “too closely intertwined with self-serving…to be trustworthy.”

      • Williamson after Crawford—Where Crawford applies:

        • Courts CANNOT admit statements taken by police from a co-offender that implicate defendant directly. Crawford (these are “testimonial”)

          • “I killed X” no longer admissible where A unavailable to testify

      • Williamson after Crawford—Where Crawford does not apply:

        • Can’t say whether Confrontation Clause continues to require an individualized inquiry into reliability or trustworthiness.

        • Crawford may not reach statements among friends.

      • Williamson “gloss” remains important

    • Statements EXCULPATING accused

Statement Against Interest Exception

Party Admission Exception

Must declarant be party to the action?



Must statement be against interest WHEN MADE?


NO—can be in interest when made, but then boomerang

Who can offer statement, and against whom?

Anyone can offer, and against anyone

Only party-opponent can offer, and only against party making admission

Criteria for admission

Those listed in FRE 804(b)(3) +

relevant (and not excluded under 403)

Relevant (and not excluded under 403)

FRE 804(b)(4)—Personal or Family History (declarant unavailable)—Statement…
  • (A) concerning the declarant’s own birth, adoption, marriage, divorce, legitimacy, relationship by blood, adoption, or marriage, ancestry or other similar facts of personal history,

    • even though the declarant had not means of acquiring personal knowledge of the matter stated;

  • OR (B) concerning the foregoing matters, and death also, of another person, if the declarant was related to the other by blood, adoption, or marriage or was so intimately associated with the other’s family as to be likely to have accurate information concerning the matter declared.

FRE 804(b)(6)—Forfeiture by Wrongdoing (declarant unavailable)

  • Party CANNOT use unavailability exceptions if they procured witness’ unavailability (whether they did it themselves, or merely acquiesced in it being done)

FRE 807—Residual Hearsay Exception

  • Requirements:

    • Statement NOT “specifically covered” by 803 or 804

    • but having equivalent circumstantial guarantees of trustworthiness

    • IF the court determines that:

      • (A) statement offered as evidence of a material fact, AND

      • (B) statement is more probative on the point for which it’s offered than any other efforts, AND

      • (C) the general purposes of the FREs and interests of justice best served by admission.

    • CANNOT admit under this exception unless:

      • proponent notifies adversary of:

        • intention to offer

        • particulars of statement

        • declarant’s name and address

      • notice is sufficiently in advance of trial or hearing to provide them a fair opportunity to meet it:

  • Applied:

    • LIMITED by Confrontation Clause
    • CRIMINAL—Where the prosecution tries to use the residual exception to introduce inculpatory statements, only “the circumstances surrounding the making of the statement may be considered, Court CANNOT consider corroborating information. Idaho v. Wright (SCOTUS)

    • Near-Miss” Debate: “specifically covered”—if offered statement just misses satisfying one of traditional exceptions, it defeats the purpose of having specific language to allow near-misses in under 807

    • General Trustworthiness factors: (State v. Weaver)

      • Indicating Trustworthiness:

        • witness credibly/lack of reason to lie

        • declarant available to testify

        • declarant’ statement made soon after incident

        • declarant has personal knowledge of event

        • declarant responded to open-ended questions

        • consistency (same statement separately to multiple people)

      • Indicating LACK of Trustworthiness:

        • long passage of time between statement and recounting by witness

        • “collective memory efforts”

    • Sex Abuse Cases: Trustworthiness factors:

      • child’s precocious age

      • behavior changes

      • temporality

      • lack of motive to lie

      • consistency

      • leading questions v. spontaneity

      • purpose of investigation


(special rules of relevance)
FRE 404(b)—Other Crimes, Wrongs, or Acts


  • Requirements:

    • Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show conformity therewith.

    • May, however, be admissible for other purposes, such as proof of:

      • motive

      • opportunity

      • intent (e.g. prior drug sale where D not found w/enough to infer intent to sell & it’s only issue)

      • preparation

      • scheme/plan (e.g. apartment owner hiring people to attack tenants to get out of building)

      • knowledge

      • identity (e.g. signature crimes to prove identity based upon unusual similarity)

      • absence of mistake or accident (e.g. frequent occurrence of unusual—head injury, say fell/stairs)

    • As long as prosecution gives notice in advance or ct excuses lack of notice on good cause

  • Applied:

    • Proving the Prior Act: (US v. Huddleston—NOT a constitutional decision, does NOT bind states)

      • FIRST—JUDGE makes threshold determination under 104(b) (relevance conditioned on fact) if a reasonable jury could find by preponderance that act occurred.

      • THEN—JURY must decide whether prosecution proved prior act by a preponderance.

      • PROBLEM with this—NO guidance about when 104(a) applies and when 104(b) applies—evidence scholars think we need to be more sure about things before we let jury hear.

FRE 404(a)—Character Evidence Generally

  • ONLY APPLIES TO CRIMINAL CASES— Motivated by POLICY—jury doesn’t know anything about accused. We rely on this kind of evidence in everyday life. We leave it up to the accused to decide whether to “open the door” and make this an issue.

  • Requirements:

    • Evidence of person’s character NOT admissible to prove action in conformity therewith on an occasion

    • EXCEPT where the ACCUSED OPENS DOOR to…

      1. pertinent trait in SELF  prosecution can then intro evidence to negate or show opposite trait

      2. pertinent trait in VICTIM  prosecution can then intro evidence of same trait in accused

    • HOMICIDE—if D argues self-defense, prosecution can intro evidence of trait of peacefulness in victim

FRE 405(a)—Methods of Proving Character—Reputation or Opinion

  • Requirements:

    • In cases where evidence of character or a trait of character is admissible [see FRE 404(a)]

    • proof may be made by TESTIMONY of:

      • Reputation (of community—only kind allowed at common law)

      • Opinion

    • On CROSS, can inquire into relevant specific instances of conduct (“did you have any idea that…”)

      • Offering party has to have good-faith basis to believe specific instance occurred

      • Limiting Instructions—“you may not conclude it happened, it’s just a question…only purpose it to test the basis of the witness’ opinion”—hard to understand how jury would understand this.

  • Applied:

    • Sequence of Witnesses

  • ACCUSED CALLS character witness to testify to HER pertinent trait. Prosecution can:

  • ACCUSED CALLS character witness to testify to VICTIM’s character. Prosecution can:

    • Call character witness to testify to accused’ character for same trait

    • Call character witness to testify to victim’s character for same trait

      • Accused can cross with specific instances

    • Cross accused’ character witness on specific instances (good-faith basis

  • HOMICIDE CASE—accused alleges self-defense—Prosecution can call character witness to testify to decedent’s character for peacefulness.

      • Accused can cross with specific instances

  • ON RE-DIRECT—proponent of witness will likely be able to address specific instances, even though rule only mentions cross.

  • Lookalikes”

  • Accused wants to prove had reason to believe victim was violent person by testifying to comments he heard about victim’s violent tendencies

    • Effect on listener—what is important is his state of mind, not victim’s character

  • Accused wants to prove victim had made threats to “get” accused, though accused had not heard these threats.

    • Not like above b/c didn’t hear so doesn’t go to state of mind

    • Admissible hearsay—(1) relevant—people tend to do what they say they’re gong to, (2) then existing state of mind exception (percipient witness would have to come testify to the event of him saying that).

FRE 405(b)—Methods of Proving Character—Specific Instances of Conduct

  • Requirements: In cases where…

    • Character is an element of the charge, claim, or defense,

    • proof may be made of specific instances of the person’s conduct.

FRE 412(a)—Sex Offense Cases; Relevance of Alleged Victim’s Past Sexual Behavior or Alleged Sexual Predisposition—Evidence Generally Inadmissible

  • In the past this kind of evidence could come in for (1) general impeachment, (2) proof of consent in this case—character trait for chastity.

  • Requirements:

    • Not admissible in civil or criminal proceedings involving alleged sexual misconduct:

      • Evidence offered to prove that any alleged victim engaged in other sexual behavior

      • Evidence offered to prove any alleged victim’s sexual predisposition.

    • UNLESS it fits and exception in 412(b) and 412(c)—SEE BELOW

FRE 412(b)— Sex Offense Cases; Relevance of Alleged Victim’s Past Sexual Behavor or Alleged Sexual Predisposition—EXCEPTIONS to General Inadmissibility

  • Requirements:

    • (1) CRIMINAL—admissible…

      • (A) Evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of semen, injury, or other physical evidence.

      • (B) Evidence of specific instances of sexual between the alleged victim and the accused

        • offered by the accused to prove consent,

        • OR by the prosecution
      • (C) Evidence, the exclusion of which would violate the constitutional rights of the accused

    • (2) CIVIL—

      • Evidence offered to prove the sexual behavior or sexual predisposition of any alleged victim is ADMISSILBE if it is otherwise admissible under these rules and its probative value substantially outweighs danger of harm of unfair prejudice to victim.

      • Evidence of an alleged victim’s reputation only admissible if alleged victim opens the door

  • Applied:

    • Improper not to allow testimony that alleged victim lived with boyfriend to show improper motive (making up to save relationship). Olden v. Kentucky (SCOTUS)

FRE 413(a)—Evidence of Similar Crimes in Sexual Assault Cases

  • Requirements: In a criminal case in which the defendant is accused of an offense of sexual assault, evidence of the defendant's commission of another offense or offenses of sexual assault is admissible, and may be considered for its bearing on any matter to which it is relevant.

    • Does NOT have to be a conviction

    • Poorly drafted—subject to multiple interpretations re: whether judge can exclude under 401 and 403

FRE 406—Habit; Routine Practice
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