The purpose of the trial is to seek the truth of an event. “What happened?” Used to prove this event is evidence. However, the course of evidence is focused on how evidence at trial is actually limited. The judge acts as the gatekeeper of what gets in and what does not. See FRE 611.

Why is the evidence limited? For several reasons, some obvious and others not so much. The obvious reason is that the trial does not need repetitive information that would extend the trial unnecessarily. However, the ironic reason is that we systematically mistrust juries. We limit evidence so that the jury will not be either confused or misled (believing that the jury can be easily confused or misled). The ironic part of this statement is that, as soon as there is a jury verdict, we hold fast to that decision and zealously defend the private reasoning of the jury. See the following cases (Tanner outlining the rule and Warger carving out an exception).

Evidence works with observations and inferences. Observations can only approach certainty (some eyewitness accounts can be misleading). Most evidence focuses on inferences. You are presented with material that leads the jury to believe that that the person was more or less probable to have done something.

This outline will be organized:

  1. A heading introducing the topic.
  2. A heading denoting the rule(s) associated with that topic.
  3. Smaller headings of cases or principle’s to support the rule.

FRE 606

Tanner v. United States

Rule 606(b) denotes the finality of a case, and limits jury testimony except for when the testimony expounds on an outside influence on the jury. Otherwise, all testimony must come from court personal observing the public actions of the jury.

The purpose of a jury decision is to impart a finality of the decision which should not be questioned expect for in extremely rare circumstances. These circumstances should be when the jury member is influenced by outside forces. An example of an outside force is a jury member seeking employment with the court. Inside influences include mental capacity, or (in this case), alcohol consumption. As such, testimony about alcohol consumption coming from a jury member cannot be used to impeach a jury decision. Instead, that testimony would need to come from personnel outside of the jury. Additionally, had the jury member come forth before the decision, that testimony could be used.

The dissent agrees with the reasoning but disagrees on the timing. Rule 606(b) discusses any influence on jury deliberations. Therefore, testimony could be allowed by a jury member to discuss improper conduct outside of the deliberation room (i.e. during the presentation of the trial).

The majority stuck with their ruling for four main reasons:

  1. Jurors can deliberate without fear or oversight
  2. Protects jurors from harassment by lawyers and the public
  3. Ensures the finality of verdicts
  4. Maintains community trust in jury verdicts.

However, the court still wants to show that parties are given their constitutionally protected rights. They say that the rights are still protected because the system provides the court opportunities to sift out bad jurors early on through:

  • Voir Dire
  • Observing the jury during trial
  • Jurors reporting other jurors before the verdict
  • Non-jurors reporting jurors of misconduct.

But see State v. Sauls.

Warger v. Shauers, 547 U.S. 40 (2014).

Warger was involved in a motorcycle accident with Shauers which cost Warger his leg. So he sued and lost. Later, he discovered that the jury foreman stated that his daughter was involved in an accident and would have ruined her life if she had been sued. Because every jury member was asked if they could judge without bias at voir dire, an affirmative response was dishonest.

Warger sought a new trial and lost in both trial, on appeal, and towards the Supreme Court. The court reasoned that bias within voir dire would naturally lead into the jury deliberations. The experience of the juror was also an internal experience, not external.

However, the justices reserved the right to revisit the issue in the extreme case of racial bias and dishonesty within voir dire.

Pena-Rodriguez v. Colorado, 580 U.S. 206 (2017).

After a verdict, a juror approached the attorney and reported another jury for making several racial statements about the defendant (being a hispanic). Both the trial and Colorado Supreme Court said that a juror testimony could not be admitted because of Tanner. However when this case was overturned at the Supreme Court level because this was a violation of a Sixth Amendment right to an impartial jury.

To qualify, racial animus needs to be shown that it was a significant factor that led to the outcome of the jury verdict. Off-hand comments do not qualify. The majority spent some time showing how this exception still upholds the policy considerations outlined in Tanner above.

However, the dissent argued that by allowing this one exception, other exceptions will arise on the same grounds based on other protected classes (sex, religion, etc.).

General Relevance Principles: FRE 401–03

Rules of Relevance: FRE 401; 402

Evidence is relevant if:

(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and

(b) the fact is of consequence in determining the action.

Emphasis added.

In other words evidence is relevant if it has both a probative nature (the party is more or less likely to have done something) and a material nature (needs to have some impact on the outcome of the case). Rather than making an objection for probativeness or immaterial, a party can make an objection for irrelevance.

George F. James, Relevance, Probability and the Law

Probativeness has a logical element to it. It is also a very easy bar to overcome because if the evidence has any tendency to impact the likelihood, then the first element is satisfied.

United States v. James

James was dating Ogden who was violent when drunk. At several times, Ogden boasted that he had killed a person and gotten away with it. James’s daughter responded violently when Ogden became dangerous.

One instance, James was sitting in the car while the daughter and Ogden were out of the car. They were running around out of view of James. James knew that the Ogden was drunk and could be violent right now. Suddenly the daughter ran to the car, asking for the gun. James gave the gun to the daughter and later heard gunshots. The daughter had shot and killed Ogden.

James was then charged as an accessary to murder. Her present defense is self-defense. Specifically, her reasonable belief of his violence was based on the statements he made to her (even though she did not know about his actual criminal records).

When the jury heard about the Ogden’s boasts about his criminal record, they asked for evidence of that record (“did he really kill someone or was it just a boast?”). The judge refused to allow the jury to see any evidence because James had not seen any evidence. In other words, whether he had a criminal record or not would not have influenced her mind at the time of the crime (it was immaterial).

This court disagrees that the material was immaterial. They say that the material could be used to corroborate James’s testimony that the Ogden told her of those things. In other words, the evidence was material in the sense that it built her credibility. The main inference by the court is that people are predisposed to tell the truth when they are boasting.

Conditional Relevance: FRE 104(b)

Cox v. State

When evidence is only relevant if a conditional fact is prevalent, there must be a good reason to show that the conditional fact actually occurred. A conditional relevancy question must pass preponderance of the evidence.

Cox was accused of killing Mr. Leonard. He knew how Mr. Leonard had died and had no alibi. To provide a motive, the state wished to show that Cox was seeking retribution against legal action that was taken against his good friend Hammer. At the time of the shooting, Hammer had a case that was pending against him, and additional charges were filed against him of molesting Leonard’s daughter. Although Cox was not at the hearing, Hammer’s mother was. Cox was staying with Hammer’s mother at the time. The inference is that Cox heard about the hearing from Hammer’s mother.

Cox sought to exclude evidence about Hammer and the outcome of the hearing because it was conditioned on the fact that Cox knew about the outcome of the hearing, something the state had not proven.

Because Cox was staying with Hammer’s mother, who had attended the hearing, it is reasonable to assume that Cox had heard about the outcome from Hammer’s mother. If this is true, then there would have been ample motive for Cox’s actions and the evidence may be admitted.

The Risk of Unfair Prejudice: FRE 403

Probative relevant evidence may be excluded if it is substantially outweighed by: “unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”

This is a rule of inclusion rather than exclusion. The only situation where the probative evidence may not go in is if it is substantially outweighed by the factors listed.

The analysis follows as:

  1. Is the evidence relevant? If no, not admissible.
  2. If yes, is it inadmissible because of undesirable characteristics such as:
    • Rule 403 dangers
  3. Assess probabitive value
  4. Balance that value against rule 403 dangers. May only be excluded if the dangers substantially outweigh the probative value.

Probative value is not the same as relevance. Probative value is the strength (significantly increases or decreases likelihood) of relevant evidence.

Photos and Inflammatory Evidence
State v. Bocharski

Bocharski was given a knife by a friend and moved to a campsite. Later, an elderly lady moved to the campsite nearby. Bocharski was talking to a friend about possibly killing the elderly lady because she was always complaining. Sometime later, the lady was discovered dead within her trailer, already showing signs of decomposition. It was later discovered that she died from knife wounds, but Bocharski’s knife was never found.

Pictures were admitted into evidence at trial that had little impact on the case. They were relevant but did not bar on any questions that were at issue. The pictures were gruesome in nature.

The trial court did not abuse its discretion (the trial judge’s reasoning was clearly untenable or unreasonable) with a few photos because they depicted the state of decomposition, which was being questioned at trial. However, a couple other pictures showing an angle of the wounds was inadmissible because those angles were not talked about at trial and could only have been used to prejudice the jury against the defendant.

However, because the jury decision was not influenced by the photos that should have been excluded, the convictions stand. “Harmless error” Rule 103.

Rebecca Hofstein Grady et al., Impact of Gruesome Photographic Evidence on Legal Decisions: A Meta-Analysis

According to studies, gruesome photos have only a slight impact compared to non-gruesome photos in procuring a conviction. However, gruesome photos as compared to no photos has a significant impact in procuring a conviction. In other words, the inclusion of any photo at all is going to lead to an increase conviction rate, while gruesome photos may lead to more punitive feelings.

Commonwealth v. Serge

Computer Generated Animations (CGAs) are treated as any other type of evidence.

The defendant was convicted of killing his wife. He claimed self-defense. However, the evidence showed that he had staged a self-defense crime scene. The state hired two experts to prove this. Additionally, the state hired a computer animation company to create an animation that depicted what the experts were saying. The animation would be used in trial to illustrate the expert’s testimony.

This type of evidence is fine. The animation was a fair and accurate depiction of the expert’s testimony and is no different than if the experts had drawn on a chalk board to explain their testimony. Although the court spends some time debating whether the financial disparity between parties could be prejudicial (one party may have the finances to create an animation while the other does not), the court ultimately reasons the disparity is not significant in this case. Finally, the court says there is no unfair prejudice because the depiction does not contain sound, facial expressions, or emotion.

United States v. James (Dissent)

This dissent is based on the same facts mentioned earlier. In the majority, the evidence of him bragging about killing another was admitted based on the credibility of the witness. However, the dissent is saying that the evidence was admissible, but it was not a great error that the trial court didn’t let the evidence in under Rule 403. In other words, the evidence could lead to an undue prejudice on the State because the victim was not on trial.

Evidence of Flight
United States v. Meyers

There was a bank robbery in Florida and Pennsylvania but the perpetrator was not apprehended. The FBI believed that Meyers was the one who committed the robbery based on a series of evidence, including the fact that Meyers had fled from the FBI on multiple occasions (once in Florida and once in California. He was ultimately caught in California).

Evidence of flight can be used as a factor to prove the guilt of an individual. However, flight alone cannot be used.

The issue here though is that the inference of flight is to lead the jury to believe that the person is not innocent (in other words, guilty). However, we have no evidence of knowing why Meyers fled (whether it was connected to the Pennsylvania robbery, Florida robbery, both, or neither). Additionally, testimony was contested about whether he was actually fleeing (while in California). As such, the evidence is not admissible.

Probability Evidence
People v. Collins

This case deals with the use of statistical evidence in the courtroom. Although this case did not allow the statistical evidence, there may be some use.

In the present case, there was a problem with the eyewitness accounts and he wanted to fill in the gaps with mathematical evidence. Here, the expert testimony of a mathematician described the probability of a blonde woman, with a particular hairstyle, with an African American individual with her, at that location, with that kind of car, etc.

Takeaways: (1) Statistical probability in a criminal case (other than DNA) has minimal use. (2) Be careful with the experts you find.

Limiting: 105

FRE 105 may also be used to limit evidence that is partially admissible. In the case of relevance, part of the evidence may be probative while other parts are substantially outwighed by the dangers listed in 403. In this kind of situation, the court could deem the evidence admissible to a certain extent (e.g., “Only consider this evidence as it relates to the identity, rather than guilt, of the defendant.”).

Specialized Relevance Rules: FRE 406–11

Each of the rules outlined below discuss evidence that is relevant, but which should be excluded for whatever reason. That means that we should still keep FRE 403 in our mind. If the material passes FRE 401 and then the associated specialized rule, a FRE 403 analysis should still occur.

Subsequent Remedial Measures

FRE 407

When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove:

  • negligence;
  • culpable conduct;
  • a defect in a product or its design; or
  • a need for a warning or instruction.

But the court may admit this evidence for another purpose, such as impeachment or–if disputed–proving ownership, control, or feasibility of precautionary measures.

In other words, subsequent remedial measures (such as a warning sign being put up after an injury) can’t be used to prove liability but can be used for another reason. Because of the phrase “such as” in the rule, this is not a complete list. As such, the evidence may be admitted to correct unfair inferences to the jury.

Why is this evidence often excluded? We don’t want to discourage individuals from taking remedial action.

Tuer v. McDonald

This was a case of medical malpractice. The plaintiff was scheduled for surgery and taken off heparin. However, the surgery was rescheduled, they determined not to put him back on heparin, and the patient died. Afterwards, the hospital changed the protocol concerning the discontinuation of heparin for certain patients.

At trial, the change of protocol was excluded with a motion in limine. However, if the issue became a matter of feasibility then the court would allow the protocol as evidence.

The issue, was the protocol feasible? Here, making the protocol may have been unsafe, but it was definitely feasible and the hospital did not content feasibility. Neither was it impeachment to say that the protocol was unsafe.

Even if the evidence can be allowed, we need to make sure that the evidence does not create an unfair prejudice against the party in accordance with FRE 403.

Compromise Offers and Negotiations

FRE 408

Bankcard America, Inc. v. Universal Bancard Systems, Inc.

These two parties had a contract that fell apart leading to a lawsuit. During the settlement proceedings, Universal was under the impression that they could work with other venders. However, this was not the case and Bankcard sued for breach of contract. During trial, Universal argued that the parties had settled. Universal won at trial, twice (because it was a new trial). However, the district court said that a new trial should be granted because the discussions about the settlement should not have been included based on FRE 408.

This court reversed, saying that the material should have been included.

According to FRE 408, compromise offers (settlements) and negotiations cannot be submitted as evidence “to prove or disprove the validity or amount of a disputed claim.”

However, this was a subsequent claim from the original claim. Additionally, the circuit court does not believe it would be fair for Bankcard to lull Universal into a false sense of security and then prevent Universal from explaining why they sought other venders. Even so, this was limited to only say that a “negotiation” occurred, but none of the settlement details could be shared.


  1. Rule of limited exclusion – not everything will be excluded.
  2. Can’t use a rule as a shield against evidence that would explain conduct.
  3. A reading of the rule says that it applies to the claim at issue (here, they were different claims)
  4. The evidence did not discuss the validity of the claim or the amount associated with it.
  5. What was permitted was limited to the bare necessities to explain the conduct.

The purpose of the rule is to encourage settlement.

Offers to Pay Medical and Similar Expenses

FRE 409

If someone offers to pay medical expenses, those statements cannot be submitted as evidence to establish liability.

Liability Insurance

FRE 411

Evidence about whether a party has liability insurance is not admissible to establish liability. However, it can be admitted for a purpose such as proving witness bias or prejudice, ownership, or control.

Ventura v. Kyle

The parties were engaged in a bar fight where Kyle claimed that Ventura was present. Ventura then filed the lawsuit against Kyle for defamation. Kyle passed while the litigation was pending and his estate took over the proceedings. During arguments, Kyle’s counsel mentioned several times that there was insurance. A jury verdict was returned for Ventura.

On appeal, Kyle is arguing that prejudicial testimony about the insurance was improperly admitted. “When a jury hears that the defendant isn’t paying the damages, they’re fine with the insurance picking up the cost.” This case was reversed, the evidence should not have been allowed. The only way for this evidence to be allowed was to show that the witnesses would have been biased, not the case here.

Jury Room Ruminations on Forbidden Topics

The question asked within this article is whether juries discuss liability insurance despite the court’s attempt to preclude evidence about insurance. Ultimately, the article found that the jury talks about insurance about 85% of cases even when they are instructed not to. The jurors are also more interested in knowing whether the plaintiffs are insured (don’t want them to double dip). As a result, the solution is to blatantly tell jurors they are not to consider insurance.


FRE 410

Withdrawn pleas and plea discussions with an attorney (not an officer) may not be admitted as evidence. Although the rule expressly names that the rule benefits the defendant, the underlying policy of the rule is to encourage plea bargains and most of the time will be equally applied when the evidence is sought to be offered against the prosecutors.

Character Evidence: FRE 404–06

Character-Propensity Rule

FRE 404(a)(1)

Prohibited Uses. Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.

The description above is called propensity evidence. This is where a person most of the time alines with the character trait described (e.g., a violent person is more likely to cause a fight).

Character is defined as a general response to one’s disposition towards certain traits such as honesty or integrity.

This kind of evidence is typically offered when there is lack of direct evidence (evidence based on senses). However, this is often prejudicial since character can change. The only way this evidence may be admitted is through FRE 405.

People v. Zackowitz

Zackowitz was charged with murder. The prosecution sought to admit into evidence the fact that Zackowitz owned a lot of weapons. Clearly, the purpose was to show that his gun ownership meant that he was likely to use a weapon to be a bad guy. This inference then leads to an inference that he acted and did so with premeditation.

The majority does not like this reasoning and says that the evidence is not admissible. However, the dissent argues that admission was part of the case development.

The rational for exclusion is that unfair prejudice comes in three ways:

  1. A jury may give excessive weight to the crime.
  2. The jury will use the character as a justification to punish the defendant.
  3. The evidence may be used to confuse the jury in a mini-trial.

The Propensity Box

Consider Zackowitz, the evidence of showing his ownership of weapons was to prove his vicious and dangerous character. In turn, this is used to prove he acted in accordance with that character. Again, to show that the premeditated murder occurred.

There are ways around the propensity box. The evidence may still be used, not to show character, but a permissible authorization (such as identify or being at the crime scene). Here, the jury may still make the inference that gun ownership was an example of character, but at least the prosecution didn’t present it (hence 105 limiting may be needed).

Other Crimes, Wrongs, or Acts: 404(b)


Evidence of another crime, wrong, or act (as long as it is not a part of this act) is not allowed to prove a person’s character to show that the person acted in accordance with the character on a particular occasion.


However, the evidence may be permitted such as a showing “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” This is an illustrative list, not exhaustive. It is also important to note that this list is not a list of exceptions. Improper use of this list may still take the evidence through the propensity box in violation of 404(a).

Escaping the Character-Propensity Box

Rule 404(b)(2) discusses a nonexhaustive list of ways to go around the character-propensity box. The following are examples of going around the box. If something qualifies in the list (and does not create the inference that the particular occasion is in accordance with the character trait), it may still be subject to a limiting instruction.

Proof of Knowledge

If another action shows the defendant had knowledge of how to perform the action, then that may be admissible. Consider the following examples.

If a hacker hacks twice and pleads guilty to the second offense, that act may be used to prove the knowledge and ability to hack in the first offense (but cannot be used to show that he had a propensity for hacking and hacked on the first occasion). The fewer people who know how to hack increases the probative value of the information.

A person charged with drug trafficking may have evidence of a previous charge of drug trafficking used to show that the individual had knowledge of the drug trade. See United States v. Crowder, 87 F.3d 1405 (D.C. Cir. 1996). Again, test the probative value based on how many people know how to sell drugs.

If a train conductor has a reputation for being drunk and causing a crash, his previous condition may not be used to say he was drunk on that occasion. However, it may be used to show that the railroad should have responded differently (the railroad knew of his condition).

Proof of Motive

State v. Skinner, 218 N.J. 496 (2014). In this case, Skinner was taken into custody for a shooting related to drug money. When searching Skinner’s car, the police found rap lyrics—seemingly written by Skinner—discussing violent actions. This was admitted to show motive. The use of rap lyrics has been very controversial. California has banned the use outright and New York has banned it unless the lyrics are directly related to the facts of the case.

United States v. Peltier, 585 F.2d 314 (8th Cir. 1978). Peltier had an arrest warrant for attempted murder in Wisconsin. He knew about this warrant when a gunfight ensued between two FBI agents and Peltier. The question is whether the warrant for attempted murder in Wisconsin could be admitted as evidence. This is a really close case, with enough discussion the defendant is likely to say enough to ensure its admittance.

Proof of Identity

United States v. Peltier, 585 F.2d 314 (8th Cir. 1978). Later, Peltier was pulled over and found in a mobile home with a paper bag that contained the FBI agent’s gun with Peltier’s thumbprint. Can the evidence be used to prove Peltier is the individual who committed the shootings? The bag and gun may be included, but not any other the evidence found within the vehicle.

United States v. Jones, 28 F.3d 1574 (11th Cir. 1994). Officers entered an apartment and recovered drugs and lottery tickets. Unsure of whether Jones was the apartment occupant, the prosecution attempted to add evidence of Jones’s previous conviction of commercial gambling, showing it was likely for him to gamble on this particular occasion. This clearly goes through the propensity box and the evidence should be barred. Consider the same fact pattern, but picture that instead of lottery tickets, Jones was an avid boater and a boating brochure was found. Would this be admissible? Maybe, the prejudice against character is much lower.

Modus Operandi (M.O.)

If a defendant has committed a crime in the past and a strikingly similar crime is committed in the future, M.O. may be admissible only when the identity is an issue.

United States v. Trenkler

Trenckler had built a remote controlled bomb for a client, the purpose was to intimidate the client’s competitor. Later, a second bomb went off, killing two bomb squad members. Trenckler was accused of building the second bomb for Slay Jr., the purpose was to target Slay Sr.

As part of this accusation, the majority pointed to the many similarities and mode of operation in obtaining bomb components to point to Trenckler. The similarities were sufficiently many, and the risk of unfair prejudice was not overwhelming. As such, the trial court did not error in admitting the second bombing, tied to the identity of Trenckler as the maker.

However, the dissent argues there are several differences and flaws with the search for a signature within the bomb. These differences make it impossible to determine that Trenckler had built both bombs. This was especially true because the first bomb utilized a harmless material (meant to simulate gunfire, like a firecracker), and the second bomb utilized TNT.

United States v. Stevens

Two Air Force officials were on base and waiting at a bus stop. While there, an individual approached them, robbed one and sexually assaulted the other. Later, the individual was identified by the two officials as Stevens. Around the same time, Mitchell was robbed by another person who had a similar description as Stevens. However, Stevens was not identified as the assailant in that case (being a part of the same line up).

Stevens sought to enter into evidence that he had been misidentified because Mitchell pointed to a different individual as the committer of the crime. This is an example of the reverse 404(b) rule, where a defendant admits evidence for the purpose of saying “I am not identified” as the perpetrator. If reverse 404(b) is applied, then the court simply needs to do a 401 and 403 analysis to test the probative value of the evidence. In this case, the evidence should not be excluded.

Narrative Integrity (Res Gestae)

United States v. Hite

Hite was charged with an illegal weapon. The prosecution called his ex-fiance to testify that Hite had showed her the gun and played Russian Roulette with her. On objection, the court said that she could testify about the gun and about Hite pulling the trigger, but references to the phrase Russian Roulette was to be denied. During trial, Stewart followed those instructions in providing her narrative testimony.

United States v. DeGeorge

DeGeorge had been involved in three boat sinking and collection of insurance money for each sinking. The present case arises because DeGeorge purchased a boat for 1.6 million, then inflated its value by making several fraudulent transfers to companies controlled by DeGeorge. After the value had increased to 3.6 million, insurance was applied for. Part of the reason for the several transfers was to disguise DeGeorge as the owner of the boat, fearing lack of insurance money for his previous actions. After insurance was granted, DeGeorge and others hopped on the boat and attempted to sink it. Despite their efforts, they were unsuccessful, being cause in the act. After making up a story, they attempted to collect insurance money. DeGeorge was then charged with perjury and other crimes.

At trial, the court admitted testimony about the past sinking because they were important to the narrative of the story. The jury would not have known why there was a need to disguise himself without this narrative. Additionally, the court scrubbed the evidence by limiting it and prohibiting any talk about collecting insurance money for the sinking. This was sound and the ruling was affirmed.

Absence of Accident

People v. Burnett, 110 Cal. App. 4th 868 (2003). How much does a claim an action was an accident open the door allowing other testimony to show that the actions were not accidental based on past actions? In this case, the defendant argued that he accidentally dropped a dog who bit him (he had a previous feud with the dog owner) where the dog run into the road and was subject to a car accident.

Doctrine of Chances

Rex v. Smith

Smith had reported his wife drowned in the tub and claimed her inheritance. Previously, Smith had reported two other wives who had died in the same manner, each leaving him with their inheritance. What is to be inferred by these circumstances? Is Smith of a bad moral character because this misfortune happened to him three times? Is he guilty?

This fact pattern gives rise to the doctrine of chances. That is, it is extremely unlikely that multiple occurrences of similar circumstances is innocent in nature. The challenge with this doctrine, however, is that it may pass through the propensity box (there is debate about that). Regardless, the doctrine of chances tends to be accepted for most cases.

Huddleston Standard

The Standard

In a 104(b) hearing, the court is to consider whether enough evidence has been produced where a reasonable jury could—by a preponderance of the evidence—find the conditional fact present.

Huddleston v. United States

In the present case, Huddleston had been arrested for selling stolen goods interstate. The main question in the case was whether Huddleston had knowledge the goods were stolen (being provided by a third-party). Seeking to establish knowledge, the state sought to introduce two other similar acts; stolen appliances sold by Huddleston, and apparently stolen televisions sold by Huddleston. In each circumstance, the goods were provided by the same third-party.

Huddleston contended that the televisions could not be entered into evidence because the state failed to prove that they were stolen, their relevance being conditioned on being stolen.

Admittance of this evidence is based on rule 404(b) and 104(b). To determine whether the conditional relevance here applies, the state may use other similar acts taken together as a whole. There is no need to apply a preponderance of the evidence standard. Using these rules, the evidence of the apparently stolen televisions may be admitted.

Dowling v. United States

The defendant was accused of robbing a bank. To tie his connection to the bank and a co-robber, the state attempted to introduce evidence from a previous trial where the defendant was identified as a robber. To this, the defendant objected because he was acquitted in the previous case. Can the evidence be admitted?

Propensity Evidence in Sexual Assault Cases

FRE 413, 414, 415

Rule 404 prohibits the use of propensity evidence to prove the character of an individual. These three rules—413, 414, and 415—are exceptions to the character propensity rule. That is, the prosecution is permitted to show past acts of sexual assault as propensity evidence against the defendant. The prosecution can take this kind of evidence directly through the propensity box.

Lannan v. State

Rules 413–414 were enacted in 1994, leaving states to determine for themselves what the rule should be before then. In Indiana, they previously had an exception called the “depraved sexual instinct,” essentially the equivalent of the federal rules today. Previously, the purpose of the exception was to discourage recidivism (this type of crime has a high recidivism rate and should be punished), and to bolster the testimony of witnesses who may have society set against them. Today, recidivism wasn’t a good reason for the exception because the exception doesn’t apply to other crimes with a high recidivism rate; bolstering credibility isn’t a good reason because the perception of society has changed to recognize this type of crime occurs frequently.

So, character evidence based on sexual assault was out in this case unless it falls under an exception in 404(b), that is, it goes around the propensity box.

State v. Kirsch

The defendant had used his position as a church member to target young women who came from poor homes with no father figure. In this case, the state sought to present evidence of several past sexual acts as stated in the testimonies of several young women who the defendant targeted.

The means of admission at trial was through 404(b) stating that it showed the motive, intent, and common plan of the defendant. Motive doesn’t work because the purpose was to show his propensity, same goes for intent. According to the majority, common plan does not work because the state needs to show that each individual act was part of a grand scheme, not the same act carried about in the same manner. However, the dissent argues that the method of finding the young victims was common and the victim utilized the same plan. Thus, the majority would exclude the evidence and the dissent would admit based on 404(b) common plan.

Additional Notes

About 20 states have passed the equivalent of 413–415. Other states are left to battle with rule 404(b) to determine whether the evidence is admissible.

United States v. Guardia

For 413 to apply, (1) the defendant must be charged with a sexual assault, (2) the evidence proffered must be of a sexual assault, and (3) the evidence must be relevant subject to 402 and traditional notions of 403.

Dr. Guardia was accused by two patients of sexual assault during an examination. The prosecution wished to present evidence from four previous patients of similar conduct. At trial, the court denied the request because the admission would confuse the jury based on 403. Considering whether this was an abuse of discretion, this court affirmed because admission would require several expert witnesses, essentially creating several mini trials.

United States v. Mound

Mound argued Rule 413 was a violation of Constitutional due process. The court, however, disagreed. Essentially, because Rule 403 exists, the defendant still has the opportunity to challenge admission and so it is not fundamentally unfair.

Proof of Defendant’s and Victim’s Character

404(a)(2)(A) and (B); 405(a)

Michelson v. United States

Michelson was charged of bribing a federal agent for a policy he found favorable. This is a crime that goes to the defendant’s character of honesty. During trial, Michelson sought to bring character witnesses, to testify to his honesty (has to be honesty, because the crime he was charged with goes to his honesty). Under rule 404(a)(2)(A), a criminal defendant can call character witnesses, bringing in propensity evidence.

The character witnesses Michelson called had known him for between 15–30 years and claimed his reputation was outstanding. On cross examination, the state asked if the witnesses were aware that Michelson had been arrested (but not charged or convicted) of receiving stolen goods (again a crime that goes to his honesty) that occurred 27 years previously. This line of questioning is permitted under rule 405(a) because the defendant opened the door. Because the witnesses had known him for about 30 years, this line of questioning was fine (although controversial).

Essentially, a criminal defendant can introduce character evidence that goes straight through the propensity box. If the defendant does this, however, the defendant must be prepared for the state introduce evidence to test the knowledge and impeach the witness under rule 405(a) and 608.

On a slightly separate but related note: criminal defendants can present testimony of the character of a victim (usually in self defense cases. 404(a)(2)(B). The only time the state can bring propensity evidence is to show a victim was peaceful, but only after the defendant has claimed self-defense. 404(a)(2)(C).


“When a person’s character or character trait is an essential element of a charge, claim, or defense, the character or trait may also be proved by relevant specific instances of the person’s conduct.”

This rule simply means that if the character is a critical element of the crime, then evidence may be permitted to prove that element.

An example of when this rule is not in play is self-defense. This is because testing the violent nature of the victim is not essential to  whether the defendant reasonably feared for their life.

However, examples of when 405(b) typically comes into evidence are:

  • Rebutting entrapment defenses (“They made me do something I wouldn’t have otherwise done.” “Well, you’ve done it before.”)
  • Proving or rebutting a defense of truth in libel or slander (“This person constantly lies”)
  • Proving negligent entrustment (“The person the defendant entrusted was not competent”)
  • Parent custody disputes (who is the better parent?)
  • Whether a person is sexually violent

In this situation, this proof does not go through the propensity box and therefore is not a violation of rule 404(a).


People v. Martinez, 51 Cal. App. 4th 537 (1996). After being charged with killing an individual in a drive by shooting, Martinez testified that she only did so because she was scared of the person in the car with her. During cross-examination, the state asked whether Martinez had shot at people before, which she admitted. Is this permissible under 405(b)?

United States v. Keiser, 57 F.3d 847 (9th Cir. 1995). Keiser shot and injured Romero, claiming self defense. During the trial, Romero saw Keiser’s brother and shouted threats. Can the defense admit the incident into evidence to show Romero was violent in nature? Yes, Keiser is a criminal defendant and can bring evidence regarding the victim’s disposition under Rule 405(a)(2)(B).

State v. Shabazz, 246 Conn. 746 (1998). Charged with murder and claiming self-defense, Shabazz sought to introduce into evidence the testimony of an expert witness. The testimony said the victim had several substances within his system that increased the liklihood the victim of violence from the victim (because these substances increase violence generally). However, this evidence should be admitted because this goes to the whether the defendant had drugs, not the character.

Habit Evidence

FRE 406

Evidence of a person’s habit or an organization’s routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness.

Halloran v. Virginia Chemicals Inc.

Halloran was a mechanic that would treat air-conditioning units by installing refrigerant in the unit. These cans were manufactured by the defendant. Upon install on a particular occasion, the can had difficulty emptying into the vehicle. Halloran attempted to heat up the can to ease the flow. When he inserted the can again into the car with no change, he realized too late that the pressure was increasing and the can exploded causing his injuries.

At trial, the defendant sought to produce evidence that Halloran had a habit of heating up the cans in an unsafe manner which would have resulted in the explosion. This evidence was denied and Halloran obtained a verdict in his favor.

The appellate court reversed the decision, stating that the defendant ought to have the opportunity to show past actions if they could show that Halloran had regularity and predictability engaged in the conduct. One instance is not going to cut it. So, the case is remanded to determine how many times the plaintiff engaged in the conduct.

Additional Notes

This evidence is generally admissible because there is usually no moral connotations with it. Sure, smoking is bad, but a jury is not likely to see a smoker as a bad person. This can become a little more difficult though when the habit is one of violence or heavy drinking. As such, rule 406 seems generally to apply to those circumstances that are more routine and innocuous.

Rape Shield Law

FRE 412


People used to (and some still do) view the victim as bringing the crime upon herself. Abbot and Sibley below illustrate this view.

People v. Abbot

The court takes the view that the victim had a predisposition to sexual activity because she was a prostitute. For this reason, the court found it reasonable to admit evidence of her prior activity with other men to show that she may have consented on the occasion for which she is claiming there was no consent.

State v. Sibley

Sibley had abused his step daughter and she testified at trial of these actions. The purpose of the testimony was introduced to impeach him as a witness but went against his character as an improper chastity moral ground. This the court found objectionable, stating the evidence should not have been admitted.

The Shield Law

The rape shield law is a reform that protects victims of rape from admitting as evidence past instances of sexual conduct used to establish the victim had a predisposition to sexual activity. Why? Because the victim in question, regardless of her sexual conduct previously, is asserting that on this particular occasion, there was no consent.


Other Sexual Behavior or Predisposition

In State v. Steele, 2021 Ut. App. 39, Emma was a bisexual who was married to a woman and lived on a farm. She obtained a trucking job and on the first day was raped by her supervisor. The state wants to admit the wife’s testimony but exclude references to her bisexuality. Steele wanted to exclude any evidence that the complainant was married to a woman. So, can the wife testify? She was permitted to testify as a close acquaintance to the victim.

Explaining the Source of Physical Evidence

In United States v. Walker, 917 F.3d 1004 (8th Cir. 2019), Walker was charged and convicted of having sexual conversations with a minor over a dating website. Although the website required users to be 18, the victim was 14 at the time and informed the defendant of her age. During trial, the defendant sought to introduce evidence of the victim having other intimate conversations with men on the site. This evidence was excluded at trial. On appeal certain images were admitted because the defendant was able to show that other men (source) had enticed the images, not him. 609(b)(1)(B).

Past Behavior with the Accused

In People v. Jovanovic, 700 N.Y.S.2d 156 (App. Div. 1999), the defendant engaged in painful intimate relations with the victim and claimed they were consensual. He wished to present evidence from past emails outlining intimate conversations they had together. These were excluded at trial. The analysis to be conducted is to first determine whether this falls under the exception of 412(b)(1)(B), were the emails sexual behavior, does it survive a 403 analysis? On appeal, these should have been admitted.

Past False Accusations

Admissible if fine under 608(b).

State v. Smith, 743 So. 2d 199 (La. 1999). Smith is the grandfather of a victim who is accusing him of indecent touching spread throughout several years. The victim’s testimony is the only evidence. At trial, the defendant sought to present evidence that the victim had made several other allegations about other family members, but this testimony was excluded on objection by the state. On appeal, the court said the testimony should have been considered as proper impeachment evidence (going towards her untrustworthiness rather than her chastity), subject to rules 403, 404, and 608(b).

Consider State v. Alvey, 458 N.W.2d 85) (Iowa), abrogated by State v. Baker, 679 N.W.2d 7 (Iowa 2004). In this case, the defendant sought to call a witness who would testify that the victim and another man had engaged in consensual activities before she accused him of rape. This is barred on the face based on 412 (goes to whether she consented to a past sexual encounter). However, this may be admissible under 412(b)(1)(C) and 608.

In People v. Vasquez, No. E071610, 2020 WL 3969860 (Cal. Ct. App. July 14), the defendant was charged with molesting his niece. The niece had put images of herself online and when confronted, lied about it. Now the defendant is attempting to establish admissibility of the evidence by means of the lie. At trial, the court permitted the word “texting” but not “sexting” to describe the evidence. Admissible based on 6089(b)

Style of Evidence—404(b)

What if Rule 412 was instead encompassed in 404(b), would there be different results. Consider the following cases.

Olden v. Kentucky

Olden and Harris were charged with kidnap, rape, and forced sodomy of the victim. After the incident, the victim was dropped off at her partner’s home and told her partner that she had just been raped. Olden sought the defense of consent, said the three of them were engaged in extramarital affairs, and that the victim had fabricated the story to protect her relationship with her then partner. At trial, the defendant was not permitted to cross-examine the partner about their relationship targeting the potential bias the parties would have had. On appeal, this was reversed and remanded.

Johnson v. State, 490 S.W.3d 895 (Tex. Crim. App. 2016). Here, the defendant was a church leader accused of assaulting one of the teens in the congregation. The defendant sought to present evidence of the victim’s home life to show that the the victim had fabricated the story to deflect attention from the victim’s negative actions.

Stephens v. Miller

Stephens and the victim tell two very different stories. The victim states that Stephens forced himself upon her, she fled, and he fled. Later Stephens told a friend to testify that he had been dropped off at a different location. Stephen’s story says that he and the victim were in a consensual act when he made a comment about the position and past intimate relations the victim had with another man. These comments were excluded at trial and the defendant was convicted. He argues that these statements were necessary for the storytelling of what happened. However, the court disagreed, stating that he had his full defense other than those comments and that he was still free to say “I said something that upset her.” The dissent argued that the words were essential to his defense and should have been admitted.

United States v. Knox

Knox was accused of raping the victim as she was asleep. She recounts that when she woke up and discovered the activity, she was angry resulting in Knox’s fear of her anger and his portrayed remorse. Knox’s story was that she was awake and consented to the encounter and that he did not make any statements of remorse or admission of guilt. To testify as to his belief that the victim was awake, he sought to present evidence of the victim’s highly active sexual activities, that he had known about these activities, and he believed these activities meant she had consented in the present case. This evidence was excluded because it is the exact reason rule 412 was enacted in the first place: it was “presented to portray the allege rape victim as a bad person who got no more than she deserved.”


Impeachment: FRE 600s

Impeachment Methods

It is important to note that there is no issue with saying a witness is mistaken, going towards their perception, memory, or narrative accuracy. Attacking the witnesses poor eyesight or memory is not an attack on character, so it is generally admissible (assuming relevancy).

Noncharacter Impeachment

This is impeaching the witness by saying that there are lying now, not saying that they are a liar. There are several ways to do this:

  • Contradiction by conflicting evidence.
  • Past inconsistent statement
  • Bias

Character Impeachment

Character impeachment is saying that the witness is a liar and lied in accordance with that attribute. Rule 404(a)(3) would allow this evidence if permitted under Rules 607–609.

  • 607: Either party can attack witness credibility.
  • 608(a): Either party can offer evidence of untruthfulness.
  • 608(b): Cross-examination may ask about specific instances of the witness’s conduct regarding truthfulness.
  • 609: Either party can impeach by showing a witness’s past conviction of a serious or deceptive crime. “Lied then, lying now.”

Opinion, Reputation, Past Lies

FRE 404(a)(3), 607, 608

Rule 404(a)(3) allows a party to present evidence regarding the character of a witness in accordance with Rules 607–609. To be pertinent, the evidence must go against the witness’s character for truth-telling. 608(a) allows a party to present character for truthfulness in the form of reputation or opinion and must be focused only on truthfulness. Additionally, 608(b) allows a party on cross-examination to question specific instances if the credibility of the witness has been attacked (again limited to truthfulness, and not by extrinsic evidence. The witness also is protected from harassment or undue embarrassment. 611(a)(3). Finally, courts are unwilling to admit evidence under 608 if it would be inadmissible under 609.).

United States v. Whitmore

Whitmore was approached by officers and began to flee. Officer Soto joined in the chase and testified that he saw Whitmore discard a weapon. He was the only one to see the weapon discarded and discover the weapon with signs of damage. Whitmore now seeks to attack the credibility of the officer by showing that the officer had (1) a reputation for lying (608(a)) and (2) cross-examination of specific instances that go against his honesty (608(b)). The trail court denied both opportunities.

On appeal, the court agrees that the trial court was correct in excluding reputation and opinion evidence because the witnesses were too disconnected from the officers to give much probative value (excluded on 403 grounds). However, the defendant should have been allowed to cross-examine the officer related to a suspension of his driver’s license and failure to make child-support payments because they went towards his honesty. Thus, the case needs to be reversed and remanded for a new trial.

Past Convictions

FRE 609


Rule 609 allows a witness to be impeached by past criminal actions in certain conditions. The proposition is to attack the witness’s honesty. This principle has several implications for criminal defendants. First, criminal defendants are in a precarious situation, they either fail to take the stand (avoiding cross examination of prior convictions) and make themselves susceptible to jury inferences of guilty by silence, or take the stand and suffer the effects of cross examination of prior convictions. The result? A likely conviction regardless of the chosen path.


For FRE 609 evidence against a criminal defendant to be admissible it needs to (1) pertain to a crime punishable by death or imprisonment in excess of a year (609(a)(1)(B)); (2) not be over 10 years old (609(b)) unless justice so requires outweighing prejudicial effect; (3) provide advance notice; and (4) consider a weighing analysis factoring the nature of the crime, conviction and subsequent history, similarity between past crimes and current crime, importance of the defendant’s testimony, and how central is credibility.

Evidence against a witness, not the defendant, only requires a 403 analysis under the fourth element illustrated above.

Crimes regarding dishonesty must be admitted, regardless of the punishment and does not require a 403 balancing unless 609(b), (c), or (d) applies (based on time or juvenile crimes).

United States v. Brewer

Brewer was being tried for kidnapping. On initial hearing, the court decided to let four past convictions into evidence (kidnapping, rape, aggravated assault, and assault with a deadly weapon). All of these convictions occurred some time ago, but the defendant had been released within the 10 year limiting period. Upon further consideration however, the court determined the weighing factors would limit the previous kidnapping conviction to be excluded because it may lead the juror to believe the defendant may have kidnapped again.

Case Notes

United States v. Valencia, 61 F.3d 616 (8th Cir. 1995), the state attempted to offer a prior conviction during its case in chief which was denied due to 404(b). Later, during cross-examination, the state brought the same conviction up during questioning which was admitted. The defendant argues this should not have been done because the court already did the balancing earlier finding it inadmissible. However, this is admissible because the two tests are figuring out different things: 404(b) goes towards character solely, and 609 is designed to address the credibility of the witness. Thus, the admission was fine.

Altobello v. Borden Confectionary Products, Inc., 872 F.2d 215 (7th Cir. 1989), the state attempted to admit a past conviction about a theft that carried only a six month penalty, but affirmed that the defendant “tampered” with electronic meters to help others reduce electric bills. Short penalty, but does it go to truthfulness? Yes, this could come in through 609(a)(2), not 609(a)(1).

Luce v. United States, 469 U.S. 38 (1984). In Luce a defendant chose not to testify after assuming his past convictions would be admissible. He later appealed. However, the Court said that the defendant’s failure to testify barred his appeal because there is no way of knowing how the challenged evidence would have affected the outcome of the case.

Ohler v. United States, 529 U.S. 753 (2000). In Ohler, the government made a motion regarding the admissibility of past convictions and the judge said they would be admissible. On direct examination (before the prosecution) Ohler testified regarding the past convictions and was convicted. On appeal, the court said the prosecution had to introduce the evidence. Admission on her own accord barred the right to complain about admission.


After the character of a witness for truthfulness has been attacked, the other party has the opportunity of rehabilitating that witness. How does one know if the character of a witness has been attacked? There are three primary methods, found in Rule 608 and 609:

  1. Opinion or reputation of witness’s bad character for truthfulness
  2. Cross-examination of specific acts of untruthful character
  3. Evidence of a past conviction.

Thus, if the opposing party offers any of those three things, then the rehabilitating party can counter.

In United States v. Bonner, 302 F.3d 776 (7th Cir. 2002), Bonner objected to the admission of character witnesses provided to bolster the credibility of the prosecution’s main witness. Generally, bolstering is not permitted unless the character of the witness has been attacked. Here, the credibility has been attacked because Bonner implied that the prosecution’s witness was being untruthful to receive benefits from helping out the case.

Extrinsic Evidence

“Extrinsic evidence will not be admitted on a collateral matter.” This principle typically occurs in two contexts, admission of character evidence and contradicting specific testimony.

Character Evidence

When permitted, all the lawyer can do is ask the witness about the prior act. No other outside (extrinsic) evidence may be permitted to describe the act. In other words, all the lawyer can say is, “Were you convicted of such crime?” to which the witness gives the response. Regardless of the answer, the lawyer cannot supplement the information (even if the answer is a denial). However, there is a way around this rule, if the purpose is to prove another matter, then the evidence may be admissible.

Contradicting Specific Testimony

Extrinsic evidence may be admitted if the purpose is to contract specific testimony. For instance, witness answers “no” to a question. The questioner may then present outside evidence to show that the answer really ought to have been “yes.”

In Hall v. State, 109 P.3d 499 (Wyo. 2005), Hall was being charged with running a drug lab. One witness had already pleaded guilty to running the lab and was offered benefits for testimony against others in the crime. Hall now wants to present testimony that the witness has (1) a propensity to threaten turning people in for self-interest reasons, and (2) has falsely accused others of possession. The purpose of presenting this material is to show the witness was biased.

Hearsay: FRE 800s

Overview of Hearsay

The whole point of the hearsay objection is to keep out evidence the defendant would not have the opportunity to cross-examine.

FFRE 801(a)–(c), 802

The Basic Rule

The issue with hearsay is reliability. A witness may falsely present incorrect evidence based on a faulty perception, memory, narration, or sincerity. Despite the flaws, this is admissible if presented by one who observed the incidents. The issue comes when another party is testifying about the observations of another. Now, the jury is forced to review perception, memory, narration, or sincerity from two witnesses, one of which is not on the stand to testify.

“Hearsay means an out of court statement that a party offers in evidence to prove the truth of the matter asserted in the statement by the declarant.

Two questions then arise:

  1. Is the party offering the statement to prove the truth of what the statement says?
  2. Did the party mean to assert (communicate) that fact?

If the answer to both questions is “yes” the statement is hearsay.


United States v. Washington, 498 F.3d 225 (4th Cir. 2007). After taking a blood sample from Washington, a machine ran tests to produce lab results showing Washington had drugs in his system. Is the printout hearsay? The court said no, but Judge Carroll disagrees.

United States v. Schwarz, 283 F.3d 76 (2d Cir. 2002). Schwarz was charged with assault, comments were made about Schwarz’s presence on the occasion. If the statements were admitted is it hearsay? It depends on the purpose for which it was admitted. If offered to show that someone wasn’t there, then it is hearsay. If it is offered to show that counsel was ineffective and on notice, then it is not hearsay.

United States v. White, 87 Fed. Appx. 566 (6th Cir. 2004). White arrived in the airport and filled declaration forms but excluded declaring firearms. He was searched and firearms were discovered. White wanted to admit at trial testimony from his traveling companion that he declared more items during the search. Is this statement hearsay?

Defining Assertions

An assertion is the intent to communicate something to others. This can include oral or written words and conduct.

Consider conduct, if an out of court gesture was made and that gesture is commonly understandable to have a meaning, then the meaning attaches. Further, if an out of court analysis inspection of a ship was used to assure the inspector, the inspector is not asserting anything. However, if an out of court visit to a nuclear test site is designed to communicate to an audience the safety of the site, visiting the site is asserting the site is safe. This goes to the sincerity of the individual.

Introducing Exceptions

There are five main categories of exceptions. That is, if the statement is hearsay, it is not admissible unless there is an exception. These categories include:

  • 801(d)(1): Past statements of a testifying witness
  • 801(d)(2): Opposing parties’ statements
  • 803: Exceptions applicable regardless of the declarant’s available
  • 804: Exceptions applicable only if the declarant is unavailable
  • 807: Residual exception

Most of the time these exceptions exist because of a need for the evidence or because the statement is more reliable than standard hearsay.

Opposing Party Statements

A party’s own words are not considered hearsay when offered against that party at trial (even though the statement follows the basic rule for hearsay).


Party’s Own Words

Jordan v. Binns, 712 F.3d 1123 (7th Cir. 2013). Jordan was a motorcycle driver involved in a car accident against a truck. The truck driver seeks to admit into evidence testimony from a witness claiming to have heard another person hear Jordan taking the blame and releasing the truck driver from liability. Is this testimony admissible? No, see 805 (hearsay on hearsay).

Adoptive Admissions

State v. Stubbs, 78 A.3d 987 (N.J. Super. App. Div. 2013). After being arrested for possession of drugs and drug money, Ms. Stubbs signed a form as the claimant stating that the money would be returned if nothing happened with the case. Is the form admissible if offered to prove that Ms. Stubbs had ownership of the money? No, this is a statement made by someone other than who it is trying to admit it against.

United States v. Beckham, 968 F.2d 47 (D.C. Cir. 1992). Undercover officers approached Monroe and Beckham and purchased drugs from Monroe. When the officer’s asked for more, Monroe responded that she was out but the officers could obtain more from her buddy. Beckham then stood up and fetched more drugs. At this point the officers arrested both parties. Now the state wishes to admit into evidence statements made by Monroe and adopted by Beckham’s actions. Admitted.

Franklin v. Duncan, 70 F.3d 75 (9th Cir. 1995). Duncan was arrested and accused of murder. His daughter (the accuser) visited him in jail. There she said that she was telling the truth. In response the father pointed to the sign saying that the message was being monitored. Now the state wants to get this jail visit into evidence. At trial, his silence was admitted as an adoption of the statement. Should have been excluded.

For silence to count as an admission four prongs need to be satisfied:

  1. Did the opposing party hear and understand the statement?
  2. Was the opposing party at liberty to respond?
  3. Was there a call for a response?
  4. Did the opposing party fail to deny or otherwise respond?

801(d)(2)(C) and (D)

Statements of Agents
Mahlandt v. Wild Canid Survival & Research Center, Inc.

Daniel Mahlandt was a young child who was sent out to fetch his older brother down the street. Along the way he passed by the home of Mr. Poos, director of the Wild Canid Survival & Research Center. The center owned a wolf that Mr. Poos would take to schools and institutes for presentations. This wolf had a reputation for being gentle and was kept at the Poos home. Daniel was discovered in the back enclosure of the home where the wolf was kept while the wolf was standing over him. He had sustained several injuries. Hot in dispute is how those injuries were sustained. Mr. Poos arrived home later to discover Daniel, called the institute and said the wolf had bit a child. Later, the board had a meeting to discuss the implications of the event.

At trial, none of the evidence was admissible. On appeal, the statements made by Mr. Poos could be admitted against him and the center because Mr. Poos was an agent of the center. Although the board minutes could be admitted against the center, they could not be admitted against Mr. Poos.

Notice that Poos had no knowledge, but because he said something, the comments could be made against him.

Pappas v. Middle Earth Condominium Ass’n, 963 F.2d 534 (2d Cir. 1992). Pappas slipped and fell outside a vacation condominium causing extensive injuries. Management was called to take care of the ice problem. One worker said that others were supposed to be on duty and should have taken care of the ice earlier. Is this statement admissible against the condominium company?

801(d)(2)(E) & 104(a)

Coconspirators’ statements

For a coconspirator statement to be admitted, there must (1) be a conspiracy, (2) the conspiracy included both the declarant and the party against whom the statement is sought to be admitted, (3) the statement went in furtherance of the conspiracy. Determination of the existence of a conspiracy occurs in a 104(a) hearing and may consider all the evidence, hearsay included, based on a preponderance of the evidence.

Bourjaily v. United States

The FBI had a call with Lonardo arranging the sale of drugs. Lonardo said that a friend would call to discuss the sale and also to facilitate pickup of the drugs. The friend facilitated the rest of the sale and was apprehended after completed. That friend is Bourjaily. At trial, the court sought to admit the telephone call the FBI had with Lonardo as evidence. This was permitted as a coconspirator statement. A 104(a) hearing was conducted, determined that the statement leads to a conspiracy and furtherance thereof, by a preponderance of the evidence. Thus, this is admissible under 801(d)(2)(E).

United States v. Aboumoussallem, 726 F.2d 906 (2d Cir. 1984). An undercover agent organized a deal for drugs with N. N said more family deals in the business and the agent arranged further dealings with Y, N’s cousin. Y executed a sale with the agent over a flight. Because neither spoke the other’s language, N translated. Once the officers attempted to arrest, N resisted resulting in his death. At Y’s trial, can N’s translation be admitted as furtherance of a conspiracy?

Past Statements of Witnesses and Past Testimony


There are seven main rules associated with past statement and past testimony made by witnesses, they include:

  • 613: Past inconsistent statements offered to impeach
  • 801(d)(1)(A): Past inconsistent statements offered substantially
  • 801(d)(1)(B): Past consistent statements
  • 801(d)(1)(C): Statements of identification
  • 804(b)(1): Past testimony
  • 612: Refreshing memory
  • 803(5): Recorded recollection

This article will cover the first five. Although these are generally considered exceptions to hearsay, the rule writers were quite clear in how the exceptions need to be crafted to be admissible.

Inconsistent Statements Offered to Impeach—613

United States v. Barrett

Barrett was arrested along with two others regarding a theft and transport of stamps. He alone went to trial. Earlier, one of the other arrestees (Adams) testified that Barrett had been involved. Later, Adams was telling the other arrestee it was too bad Barrett was caught charged because he was not involved. A waitress heard this conversation and was going to testify at trial. However, the trial court denied this evidence. On appeal, the court disagreed and said the statement should have been offered because it was offered to attack the credibility of the witness by impeachment.

Holland v. French, 273 N.C. App. 252 (2020). French ran a stop sign and caused an accident. The city sought to remove testimony of subsequent remedial measures under 407 regarding discussions to move the stop sign. They called an expert to testify that the placement was fine. Now the plaintiff wants to impeach by asking the expert about a statement they prepared saying the sign was too far back.

United States v. Harris, 881 F.3d 945 (6th Cir. 2018). Harris told his friend to lie saying that their business was selling watches. His friend agreed and lied on the stand. Now the state wants to admit the friend’s text response to impeach his trial testimony.

United States v. Ince

After a shooting in a parking lot of a concert, military police stopped several vehicles and apprehended Ince. Ince testified that he had not been the shooter, but other eyewitnesses identified him as the shooter. One of Ince’s friends also told the officer at the time of the incident that Ince confessed to the shooting. However, when presented at trial, the friend could not recall this statement, and even after her memory was refreshed, could not recall the details. So, the state attempted to impeach her by presenting testimony of the individual who she gave the statement to. At trial, this was admitted. On appeal, however, this was inadmissible because the sole purpose was for the state to circumvent hearsay by impeaching their witness. Essentially, if the state is seeking to impeach their witness for the reason of getting around hearsay, the evidence is not admissible.

United States v. Flecha, 539 F.2d 874 (2d Cir. 1976). Flecha was stopped at customs with a friend. The friend said “If they find the goods, they find the goods.” Flecha said nothing. Can the friend’s testimony be admitted against Flecha? This presents issues related to Miranda and silence. (1) If the defendant is not in custody, silence may be an adoption of admission and be used to impeach. (2) If the defendant is in custody but before being Mirandized, it is debatable of whether the silence is an adoption of admission, but the statement may still be used to impeach. (3) Finally, if the defendant is in custody and has been Mirandized, the silence is not an adoption and may not be used to impeach.

Inconsistent Statements Offered Substantively—801(d)(1)(A)

United States v. Cooper, 767 F.3d 721 (7th Cir. 2014). In a grand jury proceeding, Donia testified that the defendant and others were using her apartment to sell drugs. At trial however, she refused to testify of this matter. Can the state bring in her previous inconsistent statements made at the grand jury proceedings?

Past Consistent Statements—801(d)(1)(B)

Tome v. United States

Tome was accused of sexually abusing his four year old daughter. After a recent divorce, the Tome and his ex-wife was given joint custody of the daughter, but Tome was given primary custody. The daughter spent the summers with her mother. During a summer, the daughter disclosed comments to her mother and several other individuals upon further questioning about abuse committed by her father. In response, the father is testifying that the stories were fabricated by the mother so the daughter would not return to the father.

801(d)(1)(B) allows past consistent statements to rebut a theory of fabrication “when those statements were made before the charged recent fabrication.” Thus, the state attempted to present several witnesses where the daughter had told the same story. At trial, this testimony was admitted. On appeal, however, the testimony ought to have been excluded because the statements were not made before the charged fabrication. That is the statements made to others testifying occurred after the mother was accused of fabricating the story, not before.

Statements of Identification—801(d)(1)(C)

Commonwealth v. Weichell, 390 Mass. 62 (1983). After hearing four bangs, Folley caught a glimpse of a man running away from a crime scene. He described the man to the police, created a composite drawing, and identified Weichell as the man he saw. Can the composite drawing be admitted at trial? Yes.

United States v. Owens

Foster was attacked and suffered severe memory loss from the attack. During a several month stay at the hospital, he had one moment where he was visited by the FBI, and identified Owens as his attacker. He could remember no other visitors during his stay (although he had many). At trial, Foster again recalled the identification procedure at the hospital, but was unable to recount any other hospital encounters on cross-examination, including encounters where Foster had proposed someone else was the attacker. At trial, his testimony was admitted, reversed on appeal, but again reversed and admitted by the United States Supreme Court. Essentially, he had the opportunity to be cross-examined, so his out-of-court identification was fine. The dissent however argues that he was effectively unable to be cross-examined because his memory was so faulty.

State v. Robinson, 718 N.W.2d 400 (Minn. 2006). F.T. testified that she had obtained injuries by accident, but the nurse at the hospital said that F.T. told her Robinson had slapped her really hard. Can the nurse’s testimony be admitted? No, because they already knew who it was (known offender).

804 Hearsay Exceptions: “Declarant Unavailable”

Past Testimony—804(a) and 804(b)(1)

Volland-Golden v. City of Chicago

Volland was pulled over. At a previous criminal trial, he testified that the officers stopped him with no reasonable suspicion and abused him before effectuating an arrest. The officers testified that Volland resisted producing identification and pushed the officer through the window of his car, so the officers effectuated an arrest. At that trial, Volland was acquitted of all charges. Now, he is suing the officers for damages based on the same events. Since instigating the lawsuit Volland died, his estate took over the lawsuit, and sought to admit his testimony from the previous case due to his unavailability. The testimony is admitted because there is a predecessor in interest (also had a stake in the outcome) and similar motive to obtain the testimony.

United States v. Duenas, 691 F.3d 1070 (9th Cir. 2012). Ray was arrested for dealing in drugs. He made a statement testifying to the dealings but later recounted that statement as obtained involuntarily and without his Miranda rights being read to him. In the suppression hearing, the state called the officer who took the statement to testify that the statement was properly taken (he was cross-examined at the hearing). After the suppression was denied, but before trial, the officer passed away. May the state offer the testimony from the hearing at trial? No, there was no opportunity to contradict the testimony.

Statements Against Interest—804(b)(3)

Williamson v. United States

Harris was pulled over and drugs were discovered in the trunk of his car. Upon interrogation later, he said that the drugs were to be dropped off at a certain dumpster for Williamson to pick up. When the officers attempted to organize a drop, Harris came clean, said that he was following Williamson, and that a drop would be unsuccessful. He refused to write this statement down and would not testify about it at trial. So, the state offered up testimony of the officer to recount Harris’s statement on the theory that Harris had made a statement against his self-interest, making his testimony more reliable. This was admitted and affirmed on appeal. The Supreme Court however argued that Harris’s statements contained a mix of reliable information and none of the statements used to implicate Williamson were against his self-interest. So, the testimony should not have been admitted.

United States v. Barone, 114 F.3d 1284 (1st Cir. 1997). After a bank robbery made by two people, one of the robbers confessed to his sister saying that he and Barone had robbed the bank. Later, the confessing robber was murdered. Can the sister’s testimony regarding the confession be admitted at trial? Yes.

Dying Declarations—804(b)(2)

Mattox v. United States, 146 U.S. 140 (1892). Mullen was shot and dying but fully conscious and aware of his actions. When he was informed that he was not likely to survive he turned to a visitor and said, “I saw the people who shot me, and your son [Mattox] was not one of them.” The state sought to suppress this testimony as inadmissible hearsay. Motion to suppress ought to be denied.

O’Dell v. Ballard, No. 13–0220 (W. Va. 2013). Brookman committed suicide and left a note saying that he and O’Dell had planned on and followed through with murdering an individual. Is the suicide note admissible as a dying declaration against O’Dell? No, not covered by the rule because the comments are made a leisure before the infliction begins to set.

Shepard v. United States

Mrs. Shepard had fallen ill and remained in that state for quite some time. Her recovery showed signs of improvement before she ultimately succumbed to the illness and died. Before she died, at one point she asked the nurse to fetch a certain bottle of whiskey and have it tested for poison, believing her husband to have poisoned her. Now, the state seeks to admit the testimony of the nurse testifying to Mrs. Shepard’s words as a dying declaration. The Supreme Court said this was not allowed because Mrs. Shepard (1) still had a hope of recovery and had (2) lacked the knowledge that her husband had in fact prepared the murder (only stating her suspicions. see 602).

Forfeiture by Wrongdoing—804(b)(6)

United States v. Gray

Gray had several husbands and boyfriends, each one dying and leaving her with some insurance money. At one point, Gray had obtained a friendship with Wilson and confessed the murders to her. Previously, Gray was on trial for murdering her first husband when her then husband began to fear for his life. He testified (before his murder) that she had threatened him with a gun, knife, and other weapons. Before he could testify at that trial, he was found murdered.

Admissibility of Mr. Gray’s statements against Mrs. Gray is determined whether Mrs. Gray forfeited her arguments by her wrongdoings. For admission, the state needs to show that (1) Gray engaged in wrongdoing, (2) the purpose was to render the witness unavailable, and (3) the witness did become unavailable.

That happened here so the evidence against her was admissible.

803 Exceptions: Declarant’s Availability is Immaterial

Even if the witness is available to testify, hearsay evidence may still be admissible under the following circumstances:

Present Sense Impressions and Excited Utterances —803(1) & (2)

United States v. Boyce

The premise of the present sense impression is that a statement made at the time or shortly thereafter is admissible, even if coming through as hearsay, because the party making the statement has less time to fabricate the story, making the testimony more reliable.

Statements of Then-Existing Conditions—803(3)

Mutual Life Insurance Co. v. Hillmon

Hillmon attempted to claim a life insurance policy on her claimed deceased husband. However, the insurance policies attempted to show that Hillmon was not dead, but hiding, and the body presented was one of Walters. At trial, the defendant’s attempted to show letters written by Walters to show his intentions around the time of his disappearance. These were denied at trial, but should have been admitted according to the appellate court. The takeaway is simple: a statement about a declarant’s plan is admissible, the jury is left to infer whether the declarant followed through with that plan, and can infer the plans of others.

United States v. Pheaster, 544 F.2d 353 (9th Cir. 1976). Adell disappeared at a restaurant. He told his friends and family that he was going to meet Angelo then come back, but he never did. Can the testimony of the friends be admitted as evidence against Angelo? Yes.

Statements of Medical Diagnosis or Treatment—803(4)

State v. Smith

A victim called 911 and was taken to the hospital to treat several injuries. At the hospital, she was asked by a nurse what happened and she recalled how her partner had caused the injuries. Later, the victim was unwilling to testify against Smith and recanted her identification of his as the perpetrator. Can the state admit the testimony of the nurse as a statement of medical diagnosis? To do so, the need of identity must be relevant to the diagnosis or treatment. The majority say the identity was not needed for the diagnosis or treatment (medication applied to all types of injuries irrespective of identity). However, the dissent argues that identity is significant, and believes that there should be a categorical rule admitting identification of perpetrators of domestic abuse.

State v. Reidhead, 146 Ariz. 314 (Ct. App. 1985). A doctor noticed a slap mark across a child’s face while treating for a broken arm. At trial, the doctor testified that the child told her he had been playing with his father’s records so the father twisted his arm. Is her testimony admissible? If the state has the proper foundation, then yes; as described in this fact pattern, no.

Refreshing Memory and Recorded Recollections—803(5) & 612

Rathbun v. Brancatella, 93 N.J.L. 222 (1919). One bystander witnessed a hit and run and shouted out the license plate number. Another bystander wrote down the number as shouted for the purpose of recalling later. At trial, the second bystander could not recall the number and refreshment did not help. The first bystander had forgotten the number but could instantly recall once the number was shown. Should the number be admitted as evidence, when? Yes, see 803(1) and 803(5).

Johnson v. State

Taylor was a surviving victim who went to the police to provide a statement about the murder of his friend. The statement incriminated Johnson, the defendant. At trial, the state put Taylor on the stand but Taylor could not recall the nature of his statement, even after it was read to him. This statement was then admitted at trial, despite objections that it was hearsay. On appeal, the court reversed saying the state had not laid the foundation enough to verify the truth of the statement.

Business Records—803(6) & (7)

Palmer v. Hoffman

Hoffman was involved in an accident, hit by a train and sued the railroad company for negligence. One of the train’s engineers filled out an accident report after the incident and testified in the report that nothing had been wrong. Before testifying, the entangler had died. This report was offered up at trial as a business record, but denied by the trial court as inadmissible hearsay. The Supreme Court affirmed and said that accident reports are not “in the regular course” of business (unlike payroll, accounts receivable, etc.). Instead, these reports give opportunity for a self-interested person the chance to lie, having every incentive to do so.

United States v. Vigneau

Vigneau was convicted of money laundering because there were several money orders placed with his name, address, and number listed on it. These records could be admitted as business records as to the amount of money transferred, etc. but these could have been filed by anyone. So, it is inadmissible hearsay to use the money orders to identify Vigneau as the recipient of the money. Thus, the trial court errored in admitting the money orders as a business record.

Public Records and Reports—803(8) & (10)

Beech Aircraft Corp. v. Rainey

After a military training exercise occurred that resulted in a plane crash and deaths of the pilots, the spouses brought this action against the manufacturer. A report was conducted by an expert that outlined the most likely scenarios for the crash (pilot error being most likely with aircraft error still remaining a possibility). At trial, the court allowed the first statement (pilot error), but disallowed the second statement (aircraft error) because the first statement was a conclusion while the other was opinion. On appeal, neither statement was permitted. On further appeal to the Supreme Court, all the statements could be admitted if deemed trustworthy by the trial judge.

Residual Exception


Dallas County v. Commercial Union Assurance Co.

An old courthouse bell tower collapsed and cost about 100,000 to repair. The town sought to make the repairs with income from an insurance claim. A claim could be made if the courthouse fell from fire or lightning. Thus, the county provided evidence to show that the tower fell from a lightning strike, and charred wood came from the lightning strike. On the other hand, the insurance companies said it was faulty contstruction and the charred wood came from a fire in the courthouse reported in a newspaper nearly 60 years previously. In question is whether the newspaper article could come into evidence.

The article is hearsay. However, it can be admitted if there is an exception. Here, the court says that if there is a need for the article, and there is no question about its trustworthiness, it may be admitted. The article is old, so any other sources for verification of the fire is slim (bears in favor of admission by necessity). Additionally, the article is trustworthy. That is, the author would have faced ridicule for making a false report at the time. So, the article could be admitted as testimony.

So, what is the residual exception? It simply states that when no other hearsay exception rule applies, but there is need for the material and no doubt about the reliability, the evidence may still be admitted.

Confrontation Clause

Confrontation Clause and Hearsay

These questions only arise in criminal cases where hearsay with an exception exists. If the statement falls into this category, the court needs to ask if (1) the declarant appeared for cross-examination, (2) if unavailable, there was an opportunity to cross-examine earlier, (3) the statement is not testimonial, (4) the defendant forfeited their confrontation right, and (5) in some cases whether the statement is a dying declaration. If the answer to any of those questions is “yes” then there is no confrontation violation and is admissible subject to a 403 analysis.

Mattox v. United States

Mattox was convicted of murdering Mullen. Two witness’s affidavits were admitted against him because the witnesses had since died. The issue is that the courts do not want to allow ex party affidavits against the defendant without the ability to cross-examine. Here, the defendant had the ability to cross-examine so the material could be admitted against him.

So long as the need for the hearsay evidence is (1) necessary and (2) reliable, it can survive the confrontation clause challenge. This all changed in Crawford v. Washington.

Crawford v. Washington

Lee was stabbed by Crawford and Crawford was later implicated by his wife. When the wife was not available to testify at court due to martial privilege, Crawford said her testimony was inadmissible as a violation of the confrontation clause. The new rule: “Testimonial statements of witnesses absent from trial have been admitted only where the declarant is unavailable, and only where the defendant had a prior opportunity to cross-examine.” That is, we will no longer test for reliability and only focus on whether there was an opportunity to cross-examine.

How do you determine whether a statement is testimonial? See the cases below.

Davis v. Washington

To determine “testimonial” ask “what was the primary purpose of the statement?” Was it to help a criminal investigation (testimonial) or resolve an ongoing emergency (not)?

Giles v. California

Wrongful conduct will forfeit the confrontation right if the wrongful conduct made a witness unavailable and the defendant’s actions had the intent to make the defendant unavailable.

People v. Santiago, 2003 N.Y. Slip Op. 51034(U) (Sup. Ct. 2003). Here, the wife was undergoing battered wife syndrome and had previously approached officers about her abuse. She showed up to a preliminary hearing and recanted her statement. Fearing that she would not show up to the trial, based on the defendant’s actions, the state sought to admit her previous statements before recanting. Can they do so? Yes, but likely only once she does not show up to testify. In the preliminary hearing the judge is likely to put it on the back burner until then.

Michigan v. Bryant

Covington had been shot and found in a gas station parking lot. He implicated Bryant as the shooter and died shortly thereafter. The question was whether Covington’s statements were testimonial. Here, the Court said no because this was an ongoing emergency. The officers did not know where Covington had been shot, whether the shooter was still around, or what other dangers it might pose. Further the statements made by Covington did nothing to decrease that emergency. So, the statements are not testimonial and may be admitted.

Commonwealth v. Nesbitt, 452 Mass. 236 (2008). Nesbitt made a 911 call requesting help and implicating Nesbitt as “beating her” and that she “didn’t want to die.” There was no indication to the dispatcher that she was dying, or that the attacker was still present (having been told that he ran away). Is there an ongoing emergency? Likely no, and this is testimonial, excludable unless this is a dying declaration

United States v. Polidore, 690 F.3d 705 (5th Cir. 2012). Officers received an anonymous tip and the dispatcher attempted to gain more information about the criminal. Was there an ongoing emergency? Not likely, the statements were primarily made to help police activity and are therefore testimonial.

Bullcoming v. New Mexico

Bullcoming had a blood sample drawn to test his blood-alcohol. The lab report was prepared and certified by one of the hospital technicians. The technician was unavailable at trial. So, the state attempted to admit it as evidence as a business record by testimony of another technician. At trial, this testimony was evidence.

On appeal, the Supreme Court reversed. The lab report is a statement and is testimonial because the primary purpose is to help with the prosecution. Here, the technician who prepared and certified the report was unavailable to be cross-examined so the statement is not admissible.

State v. Thomas, 2016–NMSC–024, what if a technician had moved and the best way to testify would be over Skype? Is there a confrontation problem there? Likely yes.

Williams v. Illinois

A technician report if interpreted in part by an expert witness is not a violation of the confrontation clause.

Ohio v. Clark

Here, a preschool child reported physical abuse to his teachers. His statement and the teachers questioning was not a violation of the confrontation clause. To determine testimonial, ask “was the primary purpose to assist in a prosecution?” If yes, then testimonial. Here, the answer was no, so no violation.

State v. Jensen, 2021 WI 27 (2022). Jensen wrote a note saying that she would never take her own life and was worried her husband was getting ready to kill her. After her death, can this note be used against the husband? No.

State v. Jones, 140 Conn. App. 455 (2013). An officer approached Jones’s car who fled and ran over the officer’s foot. Two nurses treated him at the hospital and one was unable to testify. Can their report be admitted against the defendant? Probably not admissible under hearsay 803(4), but would pass confrontation clause if it makes it past hearsay.

State v. Stahl, 2005–Ohio–1137 (Ct. App. 2005). A victim accused Stahl of rape and she went to the police. She submitted herself for testing with a nurse to examine for any sexually transmitted issues related to the rape. Before trial could occur, the victim unexpectedly died of another cause. Could her statements to the nurse implicating the defendant be used against him at trial?

Bruton Doctrine

The Burton doctrine is straightforward: if a co-defendant makes a statement implicating another, then the statement may be used against the declarant, but not against the defendant.

Burton v. United States

Burton and Evans were co-defendants and had robbed a postal worker. Later Evans confessed to another postal worker that he and Burton were involved. This statement could be permitted against Evans, but not Burton. So, the trial court instructed the jury to forgot that Evans mentioned Burton. Both were convicted. This appeal says that the statement should not have been admitted at all because of the implications it has against Burton without the right to cross-examine the maker of the statement.

Gray v. Maryland

Gray and another committed a crime together and a statement made by the other was admitted at trial. The statement redacted and replaced any reference to Gray with “deleted”. On appeal, the Court said that this was not enough to protect Gray’s confrontation rights. Specifically, a jury is smart enough to realize that the redacted statements are about the defendant. Without the ability to cross-examine, the statements are inadmissible.

United States v. Edwards, 159 F.3d 1117 (8th Cir. 1998). Edwards and others were arrested for starting a fire that took the lives of several firefighters. Edwards gave a statement naming several of the co-defendants. At trial, the judge admitted the statement replacing any of the pronouns with gender neutral variations. Was this enough to protect the confrontation rights of the co-defendants? Probably not.

Expert and Opinion Evidence

Lay Opinion

Lay witnesses may also provide opinions, not just facts, in certain situations. Under 701 if the witness provides an opinion based on a rational basis of the perception, the testimony is helpful to the jury’s fact-finding (reliable and material), and avoid the expert’s realm, then the testimony may be admissible.

United States v. Yazzie, 976 F.2d 1252 (9th Cir. 1992). Yazzie was charged with selling cigarettes to a minor and wanted to present testimony of others who would testify that the minor appeared older. This is admissible.

United States v. Paiva, 892 F.2d 148 (1st Cir. 1989). A lay witness expressed her opinion that a substance was a certain kind of drug based on her frequent experience with it in the past. Is this testimony admissible? Yes.

United States v. Ganier

Ganier was involved in deletion of certain files to hide evidence of his wrong doing. A day before trial, the government received a report from a computer specialist running certain search terms. This report was excluded because the witness was considered an expert and did not meet deadlines. The government is arguing the person is not an expert witness but instead is a lay witness because anyone could have run the programs used (Microsoft word and outlook). However, the court said that the procedure of searching was more technical and agreed that the witness was an expert within 702. The appropriate remedy though was no suppression, but a continuance.

United States v. Cano, 289 F.3d 1354 (11th Cir. 2002). An officer was able to decipher a code used in a phone book found in the defendant’s home. He was able to testify as a lay witness, not an expert, because the code was reasonably easy to crack. However, the court should have used a different word than “hieroglyphics.”

Expert Testimony

An expert needs to have:

  1. Proper Qualifications
  2. Proper Tocis
  3. Sufficient Basis of facts of the opinion
  4. Reliable Methods
  5. Survive 403 challenges

Who Qualifies—702

United States v. Johnson

The government attempted to have a witness testify that the source of the drugs were from another country (the drugs were not attainable). In an objection, the court considered whether the witness was qualified to testify about the source of the drugs. During this questioning, the witness said he had smoked the drug one 1000 times, dealt in it over 20 times, and asked to identify it over 100 times (without ever making an error). With this, the court determined he was qualified and allowed the testimony. Qualifications can come from experience or education. Here, it is within the court’s discretion to determine whether those conditions are satisfied, and the defense is still permitted to present opposite experts.

Jinro America, Inc. v. Secure Investments, Inc.

Jinro (a Korean business) sued Secure over a business deal gone bad. Secure stated the deal was a sham and submitted an expert to testify about the poor dealings of Korean businesses. When asked about the basis of the opinion, he listed his “hobby,” office staff, and negative experiences based on the nature of his work (security). Although admitted at trial, this is not enough to establish the qualifications of an expert.

United States v. Plunk, 153 F.3d 1011 (9th Cir. 1998). An officer had been undercover for several years working on large-scale drug trafficking organizations. He was called to testify as to the lingo code to interpret some of the meanings. Is his testimony admissible? Experience is probably better than education in this sort of field, admitted.

Proper and Improper Topics of Expert Testimony—702(a) & 704

Common Knowledge

Chesebrough-Pond’s, Inc. v. Faberge, Inc., 666 F.2d 393 (9th Cir. 1982). In a trademark dispute, is it common knowledge that the words “macho” and “match” are confusingly similar? Should an expert in language be called to tell apart the differences? Not likely, the testimony is unhelpful.

Tyus v. Urban Search Management, 102 F.3d 256 (7th Cir. 1996). Housing ads used only white-models. Can an expert be called to testify on the effect this might have on African-American viewers? Trial court said no, but the 7th Circuit disagreed saying this goes towards social studies.

Rosenfeld v. Oceania Cruises, Inc. 654 F.3d 1190 (11th Cir. 2011). Rosenfeld slipped and fell on a cruise. She wanted to present an expert to testify that the tiles used by the cruise are naturally slippery based on a coefficient of friction. Can she do so? Likely.

Opinions on Law and Ultimate Issues

State v. Montgomery, 183 P.3d 267 (Wash. 2008). Montgomery had purchased supplies that are consistent with the manufacture of an illegal drug. Combined with the co-defendant’s purchases, this would be sufficient to establish the makings of the drug, but alone the purchases were not enough. Montgomery offered that his purchases were for innocent reasons. An expert testified against him and said that the material was indeed known and established to be ingredients for the drug. This testimony is not admissible because the expert is testifying as to an element of the crime.

Hygh, v. Jacobs

Hygh accused Jacobs of excessive force in effectuating an arrest. He called an expert to the stand that provided a definition of deadly force different from the statute and said that Jacob’s actions were “totally improper.” Essentially, these statements overburdened the jury, telling them what result to reach. However, there was not reversible error because everything else said was admissible.

Opinions on Witness Credibility

Nimely v. City of New York, 414 F.3d 381 (2d Cir. 2005). In a dispute about whether the victim was shot in the back or front, the defense called a forensic witness to testify that the victim had been shot from the front. In part of his analysis, he concluded that the officer’s truthfulness was fine because otherwise it would have been such an easy lie to disprove. Was this testimony admissible? No.

United States v. Herron, 2014 WL 1871909 (E.D.N.Y.). The defense wished to call a witness to testify that rap lyrics are not designed to be expressions of truth by the artist. Is this testimony on witness credibility?

State v. Batangan

Bantangan was accused of raping his daughter. An expert was called to testify as to the behavior of children who suffer this form of abuse. He testified that the child was believable that the defendant had committed the crime. To this the defense objected. The material should not have been admissible because his testimony did nothing more to help the jury than they could have deduced by themselves. The expert could testify to the behavior, but not to the credibility of the accusation.

Basis of Expert Opinion Testimony—702(b), 703, & 705

In re Melton

Melton was considered to likely injury himself or others by expert testimony. Could these experts rely on the mother’s account that Melton had hit her? Yes, to an extent.

United States v. Kantengwa, 781 F.3d 545 (1st Cir. 2015). Kantengua was convicted for perjury and obstruction of justice related to a Rwandan genocide. She testified that there was no roadblock outside the hotel where she was staying. A political science testified that there was a roadblock, based on information obtained form 25 interviews, letters, and minutes of the government, etc. Is this a proper basis for the testimony? The court needs to conduct a 104(a) hearing to assess reliability, but ultimately the answer is yes.

Ricciardi v. Children’s Hospital Medical Center, 811 F.2d 18 (1st Cir. 1987). Should a doctor’s testimony be admitted based on the testimony of another doctor and his note (doctor’s identity is unknown). The testimony is only admissible if experts in the field generally rely on notes of this kind.

Assessing Reliability of Scientific Testimony

Frye v. United States

Frye was subject to a blood pressure deception test, new scientific test that was transforming from experimental to recognized scientific principles. Was the use of the machine and the testimony associated with it, admissible against the defendant? It was admissible if there was a “general acceptance” within the field.

Daubert v. Merrill Dow Pharmaceuticals, Inc.

Experts were called to question whether Bendectin could cause birth defects in humans. The defendants showed that the drug could not while the plaintiffs presented new studies that had not been peer reviewed to say that they could. At trial, this was not allowed. Even so, this is a presentation of “scientific” evidence that was not scientific because it still lacked a scientific founding. Based on a 104(a) hearing determining admissibility, the court should determine whether the evidence is scientific or not. Reversed and remanded.

Assessing Reliability of Non-Scientific Testimony

Kumho Tire Company v. Carmichael

An expert testified how a tire had exploded. Although his analysis was not scientific, it was technical. Does the court need to apply a Daubert analysis for technical testimony to test reliability. Yes. So, the court should ask if there are standard practices to test the theory, whether there was peer review of those practices, etc. but it still has the flexibility to determine what method makes material more reliable.

Ayers v. Robinson, 887 F. Supp. 1049 (N.D. Ill. 1995). An economist had developed a method on how to value human life in dollar amounts by lost earning capacity. Can Ayers admit this testimony to inform the jury how a calculation could be done and award her $2 million dollars for the life of her son? Maybe. Ultimately this is likely to be inadmissible based on a 403 analysis.

Tardif v. City of New York

When evaluating expert witnesses, the court considers the qualifications, reliability, and helpfulness of the witness.

Tardif was involved in protests within New York on several occasions. She is suing the city and officers for injuries she sustained and specifically for PTSD related to the protests. She presented an expert to testify that she has PTSD, and it was caused by the officer’s actions at the protests. Although the expert can testify as to PTSD, he is not permitted to discuss causation. The state also produced an expert on PTSD. This expert is considered reliable and helpful and so could testify that Tardif did not suffer from PTSD.

How could the court determine that both the experts were reliable beyond a preponderance of the evidence, when the obtained opposite results?

Ryan v. State, 988 P.2d 46 (Wyo. 1999). Keri Ryan was found shot to death in her home. Evidence showed that she suffered from battered wife syndrome, abused by her husband Ryan. Eventually, she left Ryan and started dating another man. At trial, the state wished to offer evidence that this period of time is called “separation violence” a phase where the victim is in the most danger because the abusing spouse can’t handle the idea of the separation. Could this testimony be offered as the logical extension of battered wife syndrome?



Best Evidence Rule




The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.

Will Laursen

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