AN ANALYTICAL APPROACH TO

EVIDENCE
EDITORIAL ADVISORS

Erwin Chemerinsky
Dean and Distinguished Professor of Law
Raymond Pryke Professor of First Amendment Law
University of California, Irvine, School of Law

Richard A. Epstein
Laurence A. Tisch Professor of Law
New York University School of Law
Peter and Kirsten Bedford Senior Fellow
The Hoover Institution
Senior Lecturer in Law
The University of Chicago

Ronald J. Gilson
Charles J. Meyers Professor of Law and Business
Stanford University
Marc and Eva Stern Professor of Law and Business
Columbia Law School

James E. Krier
Earl Warren DeLano Professor of Law
The University of Michigan Law School

Richard K. Neumann, Jr.

Professor of Law
Maurice A. Deane School of Law at Hofstra University

Robert H. Sitkoff
John L. Gray Professor of Law
Harvard Law School

David Alan Sklansky

Stanley Morrison Professor of Law
Stanford Law School
Faculty Co-Director
Stanford Criminal Justice Center
 AN ANALYTICAL
APPROACH TO
EVIDENCE
TEXT, PROBLEMS, AND CASES

Sixth Edition

RONALD J. ALLEN
John Henry Wigmore Professor of Law
Northwestern University School of Law

ELEANOR SWIFT
Professor of Law Emerita
University of California at Berkeley School of Law

DAVID S. SCHWARTZ
Foley & Lardner-Bascom Professor of Law
University of Wisconsin Law School

MICHAEL S. PARDO
Henry Upson Sims Professor of Law
University of Alabama School of Law

ALEX STEIN
Professor of Law
Benjamin N. Cardozo School of Law
Copyright © 2016 Ronald J. Allen, Eleanor Swift, David S. Schwartz, Michael S. Pardo, and
Alex Stein.

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Library of Congress Cataloging-in-Publication Data

Names: Allen, Ronald J. (Ronald Jay), 1948- author.

Title: An analytical approach to evidence: text, problems, and cases /
Ronald J. Allen, John Henry Wigmore Professor of Law, Northwestern
University School of Law, Eleanor Swift, Professor of Law Emerita, University of
California at Berkeley School of Law, David S. Schwartz, Foley &
Lardner-Bascom Professor of Law, University of Wisconsin Law School,
Michael S. Pardo, Henry Upson Sims Professor of Law, University of Alabama
School of Law, Alex Stein, Professor of Law, Benjamin N. Cardozo School of
Law.
Description: Sixth edition. | New York: Wolters Kluwer, [2016]
Identifiers: LCCN 2016000011 | eISBN: 978-1-4548-7608-3
Subjects: LCSH: Evidence (Law)—United States. | LCGFT: Casebooks.
Classification: LCC KF8935 .A53 2016 | DDC 347.73/6—dc23
LC record available at http://lccn.loc.gov/2016000011
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vii

SUMMARY OF CONTENTS
Contents
Preface
Acknowledgments
Why Study Evidence? A Student's Preface
Special Notice on Citations

CHAPTER ONE The Case of People v.

Johnson
CHAPTER TWO The Process of Proof: How
Trials Are Structured
CHAPTER THREE Relevance, Probative Value,
and the Rule 403 Dangers
CHAPTER FOUR Foundation
CHAPTER FIVE The Character, Propensity,
and Specific Acts Rules
CHAPTER SIX The Other Relevance Rules
CHAPTER SEVEN The Impeachment and
Rehabilitation of Witnesses
CHAPTER EIGHT The Hearsay Rule
CHAPTER NINE Lay Opinions and Expert
Witnesses
CHAPTER TEN The Process of Proof in Civil
and Criminal Cases: Burdens
of Proof, Judicial Summary
and Comment, and
Presumptions
CHAPTER ELEVEN Judicial Notice
CHAPTER TWELVE Privileges
Table of Cases
Table of Authorities
Index
ix

CONTENTS
Preface
Acknowledgments
Why Study Evidence? A Student's Preface
Special Notice on Citations

CHAPTER ONE
THE CASE OF PEOPLE v. JOHNSON
The People of the State of California v. James Johnson
Notes and Questions

CHAPTER TWO
THE PROCESS OF PROOF: HOW TRIALS ARE STRUCTURED
A. Introduction to the Study of Evidence
B. The Adversary/Jury Trial System: An Overview
1. The Adversary System
2. Adversarial Presentation of Proof: The Idea of Competing
Narratives and “Theory of the Case”
C. The Structure of a Trial
1. Pretrial Motions
2. Jury Selection
3. Preliminary Instructions
4. Opening Statements
5. Presentation of Evidence and the Burden of Production
a. The Order of the Parties' Presentation of Cases
b. The Burden of Production
6. Post-evidence Matters
7. Closing Arguments
8. Jury Instructions and the Burden of Persuasion
9. Jury Deliberations and Verdict
10. Post-trial Motions
x

D. Examination of Witnesses and FRE 611

1. FRE 611
2. Explanation of FRE 611(a) and (b)102
3. FRE 611(a) and (b) and the Examination of Witnesses:
Practical Applications
a. Direct Examination
b. Cross-examination
c. Direct Examination of “Adverse” and “Hostile” Witnesses
4. Explanation of FRE 611(c): Leading Questions
5. FRE 611(c) and Leading Questions: Practical Applications
a. What Is a Leading Question?
b. Leading Questions: Tactical Considerations
E. Objections and Preservation of Error for Appeal: FRE 103
1. FRE 103
2. Explanation of FRE 103(a) and (d): Objections, Offers of
Proof, and Preservation of Evidentiary Issues for Appeal
3. FRE 103(a)(1) and (2) and Objections: Practical Applications
a. Two Types of Objections
b. Timing of Objections
c. Stating the Objection
d. Tactical Considerations
4. FRE 103(a) and (d): Preservation of Error for Appellate
Review
a. Making the Record—in General
b. Making the Record for Appeal of Evidentiary Rulings
c. Standards of Appellate Review of Evidentiary Errors
F. Reflections on Natural Reasoning and the Adversary System
1. The Adversary System Reconsidered
2. Why Have Rules of Evidence?124
3. Natural Reasoning and the Trial Process
4. The Behavior of Factfinders

CHAPTER THREE
RELEVANCE, PROBATIVE VALUE, AND THE RULE 403
DANGERS
A. Relevance—the Basic Concept
1. FRE 401 and 402
2. Explanation of FRE 401 and 402
a. Relevant Evidence Is Offered to Prove a Fact of
Consequence
b. Relevant Evidence Must Make a Fact of Consequence
More Probable or Less
c. Relevance Is Not Sufficiency
d. Direct Versus Circumstantial Evidence
e. Background Information
3. Applications of FRE 401 and 402
Knapp v. State

xi

United States v. Stever

Notes and Questions
Key Points
Problems
B. Probative Value and the Rule 403 Dangers
1. FRE 403
2. Explanation of FRE 403
a. Probative Value
b. Rule 403 Dangers
c. Probative Value Substantially Outweighed by One of the
FRE 403 Dangers
3. FRE 403: Specific Problems and Applications
a. Gruesome Exhibits and Other Potentially Inflammatory
Evidence
b. Spoliation
c. Curative Admissibility
Key Points
Problems
 4. Appellate Review of Judicial Discretion Under FRE 403
United States v. Hitt
Old Chief v. United States
Notes and Questions
C. Reflection on Relevance, Probative Value, and Judicial
Discretion
1. Can Relevance and Probative Value Be Measured?
2. Are Juries Rational?
3. How to Regulate Judicial Discretion?
Assessments

CHAPTER FOUR
FOUNDATION
A. Foundation for Witnesses: Credibility and the Firsthand
Knowledge Requirement
1. FRE 601
2. Explanation of FRE 601
3. FRE 602
4. Explanation of FRE 602
5. FRE 602: Practical Applications
Key Points
Problems
B. Foundation For Exhibits
1. FRE 901
2. Explanation of FRE 901
3. FRE 901—Practical Applications: The Problem of
Incomplete Foundations

xii

a. Basic Procedure: Offering an Exhibit Through a

Foundation Witness
b. Partial Foundations and Connecting Up
4. FRE 901—Practical Applications: Procedural Steps
Key Points
 Problems
5. FRE 901—Practical Applications: Generic Foundation
Questions for Various Exhibit Types
a. Real Evidence Foundation Issues
b. Depictive Evidence Foundation Issues
c. Written Documents
d. Authenticity and Genuineness of Exhibits
e. Sum Up: The Flexibility of FRE 901 Foundations
Key Points
Problems
6. FRE 902
7. Explanation of FRE 902
Key Points
Problems
C. Preliminary Fact Questions Under FRE 104
1. FRE 104
2. Explanation of FRE 104(a)
Key Points
3. Explanation of FRE 104(b)
a. Relevance Depending on “Whether a Fact Exists”: FRE
104(b) as a General Foundation Requirement
b. Conditional Admissibility
4. FRE 104(b) in Practice
5. Theoretical Justifications for the FRE 104(a)/104(b)
Distinction
Key Points
Problems
6. Reflection on FRE 104(b): Is There a Conditional Relevance
“Problem”?
Problem
D. The Best Evidence Rule
1. FRE 1001–1008
2. Explanation of Best Evidence Rule
3. When Is Evidence Offered to “Prove Content” of a
Document?245
 4. Best Evidence Rule: Definitions and Exceptions
a. Definitions
b. Exceptions
5. Best Evidence Rule: Practical Applications
6. Explanation of FRE 1008
Key Points

xiii

Problems
7. The Best Evidence Rule: Policies and Problems
Seiler v. Lucasfilm, LTD.
Notes and Questions
Assessments

CHAPTER FIVE
THE CHARACTER, PROPENSITY, AND SPECIFIC ACTS RULES
A. The Relevance of Character Evidence to Prove Conduct on a
Particular Occasion
B. General Prohibition on Use of Character and “Crime, Wrong, or
Other Act” Evidence
1. FRE 404
2. Explanation of FRE 404(a) and (b)265
a. The Rationale for Restricting Evidence of a Person's
Character
b. Exceptions to the FRE 404(b) Prohibition Against the
Use of Specific Acts
Key Points
Problems
C. The Admissibility of Specific Acts that Are Deemed Relevant
Without a Character Inference
1. Explanation of FRE 404(b)(2)271
a. Types of 404(b)(2) Evidence
b. Preliminary Factfinding with Respect to Whether the
Person in Question Committed the Act
c. Probative Value and Prejudice Generally
 Key Points
Problems
2. Difficulties Distinguishing FRE 404(b)(2) Evidence from
Prohibited Character Evidence
a. The Problem of “Res Gestae”
b. The Problem of Specific Acts Evidence to Prove Intent
or Knowledge
c. The Problem of Specific Acts Evidence to Prove Mental
States That Are Not Disputed
d. Past “Accidents” or “Coincidences” and the
Anticoincidence Theory
e. Modus Operandi and the Character Inference
Key Points
D. An Application of FRE 404(B) and FRE 403
United States v. Varoudakis
Notes and Questions
Problems

xiv

E. Habit and Routine Practice

1. FRE 406
2. Explanation of FRE 406
a. The Importance of Habit and Routine Practice Evidence
b. Methods of Proving Habit and Routine Practice
c. The Distinction Between Habit and Character
d. The Rationale for Permitting Habit and Routine Practice
Evidence
e. Strategies for Distinguishing Between Habit and
Character
f. Judicial Factfinding on the Question of Habit
g. An Application of the Character/Habit Distinction:
Drinking “Habits”
h. Evidence of Custom or Routine Practice of an
Organization
 Key Points
Problems
F. Similar Happenings
1. No Specific Federal Rule for Similar Happenings
2. Similar Happenings, Character, and Habit Evidence
Compared
3. The Admissibility of Similar Happenings Evidence Depends
on FRE 403
4. Applications of FRE 403 to Similar Happenings Evidence in
Practice
5. Similar Happenings Offered to Show an Institutional Policy
or Practice
6. Evidence of Similar Nonhappenings
Key Points
Problems
G. Exceptions to the Prohibition on Use Of Character to Prove
Conduct on a Particular Occasion
1. Explanation of FRE 404(a)(2), (3)309
a. FRE 404(a)(2)(A) and (B): A Criminal Defendant's Right
to Open the Door to Character Evidence
b. FRE 404(a)(2)(A) and (B): The Prosecution's Right to
Respond to a Defendant's Character Evidence
c. FRE 404(a)(2)(C): The Prosecution's Right to Use
Character Evidence to Respond to Defense Attacks on a
Homicide Victim's Conduct
d. The FRE 404(a)(2) Requirement of Pertinence
e. The Rationales for the FRE 404(a)(2) Exceptions
f. FRE 404(a)(3): The Character of Witnesses
g. An Application of the Character Rules: People v.
Johnson
Key Points
2. Explanation of 405(a): How Character Is Proven When the
FRE 404(a)(2) and (3) Exceptions Apply
a. The Prohibition Against Using Specific Acts to Prove
Character
xv

b. The Probative Value of Opinion and Reputation

Evidence to Prove Character
c. Reputation Evidence versus Opinion Evidence
Key Points
Problems
3. The Cross-examination of Character Witnesses
a. The Relevance of the Specific Acts Inquiries
b. The Prejudicial Impact of Specific Acts Questions
c. The Relationship Between the Character Trait and the
Specific Acts Inquiries
d. The Character Witness's Likely Knowledge of the
Specific Act
e. The Cross-examiner's Reasonable Belief That the Act
Occurred
f. Acts, Arrests, and Convictions
g. The Form of the Questions on Cross-examination
4. Limitations on the Use of Character Evidence in Practice
a. The Inherent Weakness of Good Character Evidence
b. The Potential Unfairness of FRE 405
Key Points
Problems
H. Evidence of A Person's Character When Character Is an
Essential Element of a claim or Defense
1. Explanation of FRE 405(b)
2. An Application: Reputation versus Character in Defamation
Cases
Key Point
Problems
I. Evidence of Sexual Assault and Child Molestation
1. FRE 413-415
2. Explanation of FRE 413-415
a. The Relationship Between FRE 413-415 and Other
Rules of Evidence
 b. FRE 413-415 and Preliminary Factfinding
c. The Broad Definition of “Offense of Sexual Assault”
d. The Meaning of “Without Consent” in FRE 413(d)(2) and
(3)
3. Elaboration of FRE 413-415
a. The Application of FRE 403 to Previously Inadmissible
Character Evidence
b. The Underlying Rationale for Rules 413-415
c. The Significance of FRE 413-415 to Federal Litigation
Key Points
Problems
J. Evidence of an Alleged Victim's Past Sexual Behavior or
Disposition in Sex Offense Cases
1. FRE 412
2. Explanation of FRE 412
a. The Relevance of an Alleged Victim's Sexual Behavior
or Disposition

xvi

b. The Underlying Propensity Theory

c. The Scope of FRE 412
3. Elaboration of FRE 412
a. The Rationale for a Rule Excluding Evidence of Prior
Sexual Behavior and Sexual Predisposition
b. Two Approaches to the Exclusion of Other Sexual
Behavior and Sexual Predisposition Evidence
c. Rape Shield Rules and the Defendant's Right to Testify
d. FRE 412 and Discovery in Civil Cases
Key Points
Problems
Assessments

CHAPTER SIX
THE OTHER RELEVANCE RULES
A. Inadmissible to Prove “Negligence,” “Culpable Conduct,” or
“Liability”
1. FRE 407
2. Explanation of FRE 407
a. The Exclusionary Mandate
b. Permissible Uses of Subsequent-Remedial-Measure
Evidence
c. The “If Disputed” Requirement
d. The Relationship Between FRE 407 and FRE 403
3. Elaboration of FRE 407
a. The Rationales for FRE 407
b. Subsequent Remedial Measures by Third Persons
Key Points
Problems
3. FRE 408
4. Explanation of FRE 408
a. The Exclusionary Mandate; Permissible Uses; FRE 403
b. Conduct or Statements Made During Negotiations
c. The “Disputed Claim” Requirement
d. The Applicability of FRE 408 to Criminal Cases
e. A Party's Own Offer of Compromise
f. Compromises and Offers of Compromises by Third
Persons
5. FRE 409
6. Explanation of FRE 409
a. The Exclusionary Mandate
b. The Admissibility of Statements Made in Conjunction
with Medical and Similar Payments
c. FRE 409 Permits Evidence of Payment for Purposes
Other Than to Show Liability
d. What Constitutes a “Similar” Expense?
7. FRE 411

xvii
 8. Explanation of FRE 411
a. The Exclusionary Mandate
b. The Permissible Uses of Evidence of Liability Insurance
Key Points
Problems
B. Reflection on Rules 407–409, 411
C. Withdrawn Guilty Pleas, Pleas of No Contest, and Statements
Made During Plea Discussions
1. FRE 410
2. Explanation of FRE 410
a. Withdrawn Guilty Pleas
b. Pleas of No Contest
c. Statements Made in Conjunction with the Process of
Making and Negotiating Pleas
d. The Scope of FRE 410(a)(4)
e. The FRE 410(b) Exceptions
f. Waiver of FRE 410's Exclusionary Mandate
Key Points
Problems
Assessments

CHAPTER SEVEN
THE IMPEACHMENT AND REHABILITATION OF WITNESSES
A. Basic Concepts
1. Impeachment: The Inferential Process
a. The Testimonial Inferences
b. Types of Impeachment Evidence
c. Impeachment Evidence versus Substantive Evidence
2. “Extrinsic Evidence” and Impeachment
3. “Rehabilitating” versus “Bolstering” Evidence
B. Impeachment and Rehabilitation with Character Evidence
1. FRE 608
2. Explanation of FRE 608(a)
a. Reputation and Opinion Evidence to Prove Character for
Untruthfulness
 b. The FRE 608(a) Limitation on Evidence of Good
Character for Truthfulness
Key Points
Problems
3. Explanation of FRE 608(b)
a. The Prohibition Against the Use of Extrinsic Evidence
b. The Limited Scope of Permissible Inquiry
c. No Fifth Amendment Waiver

xviii

d. The Scope of FRE 608(b)(1): Questioning Witnesses

About Their Own Specific Acts
e. Questions About Specific Acts and FRE 403
f. Good-Faith Requirement; Practical Considerations
g. Specific Acts Showing Good Character for Truthfulness
h. “Cross-Examination”
i. The Scope of FRE 608(b)(2): Questioning Character
Witnesses Regarding Specific Acts of the Witnesses
They Testify About
Key Points
Problems
4. FRE 609
5. Explanation of FRE 609(a) and (b)
a. The Two FRE 609(a)(1) Balancing Tests
b. The Automatic Admissibility of FRE 609(a)(2) “Dishonest
Act or False Statement” Convictions
c. The FRE 609(b) Reverse Balancing Test
6. Elaboration of FRE 609(a) Impeachment: Policy and
Practical Consideration
a. The Rationale for FRE 609(a)(1)
b. Prior Convictions and Prejudice
c. Extrinsic Evidence
d. The Factual Details of the Conviction
e. The Relationship Between FRE 609(a) and FRE 608(b)
 f. Hearsay
g. Practical Considerations
Key Points
Problems
C. Impeachment and Rehabilitation with a Witness's Prior
Statements
1. FRE 613
2. Explanation of FRE 613
a. FRE 613(a)
b. FRE 613(b)
c. FRE 613(b)'s Departure from the Common Law
d. Extrinsic Evidence in Practice: Practical Considerations
e. Probative Value and FRE 403 Concerns
3. Prior Consistent Statements
Key Points
Problems
D. Other Impeachment Techniques
1. Bias
a. Relevance
b. Extrinsic Evidence
c. Possible FRE 403 Limitations on Extrinsic Evidence of
Bias
d. Bias Versus Character

xix

Key Points
Problems
2. Mental or Sensory Incapacity
a. Relevance
b. Extrinsic Evidence
c. Mental Incapacity as a Bar to Testimony
Keys Points
Problems
3. Contradiction
 a. Relevance
b. Extrinsic Evidence
c. The Impeachment of Experts with Statements in
Treatises
d. The “No Extrinsic Evidence to Impeach on a Collateral
Matter” Doctrine
Key Points
Problems
E. Reflection on the Impeachment Process
Assessments

CHAPTER EIGHT
THE HEARSAY RULE
A. The General Rule of Exclusion and the Definition of Hearsay
1. FRE 801 and 802
2. Explanation of FRE 801 and 802
a. The Relevancy of Sally's Testimony Depends on
Generalizations About Sally's Testimonial Qualities
b. The Relevancy of Sally's Hearsay Statement Also
Depends on Generalizations About Sally's Testimonial
Qualities
c. Hearsay Policy Differentiates Between Witnesses and
Hearsay Declarants
Key Points
Problems
3. Elaboration of FRE 801 and 802: Implications of the General
Rule of Exclusion
a. Identifying What a Hearsay Statement Is Offered to
Prove
b. Testimony by Witnesses About Their Own Out-of-Court
Statements May Still Be Hearsay
c. Hearsay, Lay Opinions, and the Firsthand Knowledge
Rule
d. Multiple Hearsay
Key Points
 Problems
4. Explanation of FRE 801(c): Nonhearsay Statements with No
Hearsay Dangers
a. Nonhearsay Uses
b. Statements Relevant for Both Nonhearsay and Hearsay
Uses

xx

Key Point
Problems
5. Explanation of FRE 801(a)(2): Nonverbal Conduct
a. The Relevancy of Nonverbal Conduct to Prove Belief
b. Application of FRE 801(a)
6. Elaboration of FRE 801(a): Justification for the Distinction
Between Assertive and Nonassertive Conduct
a. Absence of Hearsay Danger
b. Necessity
c. Should Nonassertive Conduct Be Excluded from the
Definition of Hearsay?
d. Disguised Assertions
Key Points
Problems
7. Utterances Relevant for the Truth of the Declarant's
Unstated Beliefs
a. The Relevancy of Unstated Beliefs
b. Application of FRE 801(a) and (c)
8. Elaboration of FRE 801: Courts Reject the Literal Approach
and Apply an “Intent” Test
a. The Judicially Created Intent Test
b. The Difficulties of Applying an Intent Test
c. Some Courts Still Adhere to the Common Law Approach
Key Points
Notes and Questions
Problems
 9. Reflection on the Definition of Hearsay: Should FRE 801 Be
Revised?
B. A General Approach to the Admission of Hearsay Under the
Exemptions and Exceptions
1. Justification for the Exemptions and Exceptions
2. The Categorical Approach
3. The Process of Admission
4. The Foundational Requirements
5. Multiple Exemptions and Exceptions May Apply
6. FRE 805
7. The Confrontation Clause
C. Hearsay Exemptions
1. FRE 801(d)(1) and (2)
2. Explanation of FRE 801(d)(1): The Testifying Declarant Must
Be “Subject to Cross-examination About the Prior
Statement”
a. Preliminary Factfinding
b. Other Justifications for the FRE 801(d)(1) Exemptions
3. Explanation of FRE 801(d)(1)(A): Prior Inconsistent
Statements
a. Preliminary Factfinding

xxi

b. Justification for the FRE 801(d)(1)(A) Limitations

c. Prior Inconsistent Statements Not Within FRE 801(d)(1)
(A)
4. Explanation of FRE 801(d)(1)(B): Prior Consistent
Statements
a. Preliminary Factfinding
b. Justification for the FRE 801(d)(1)(B)(i) Limitation
c. Beyond Motive: FRE 801(d)(1)(B)(ii)
d. Limits on Credibility-bolstering Statements Continue to
Apply
5. Explanation of FRE 801(d)(1)(C): Prior Statements of
Identification
a. Preliminary Factfinding
b. Justifications for the Admissibility of Prior Statements of
Identification
c. Constitutional Dimension
Key Points
Problems
6. Explanation of FRE 801(d)(2): Party Admissions in General
7. Explanation of FRE 801(d)(2)(A): A Party's Own Statements
a. Preliminary Factfinding
b. Individual and Representative Capacity
c. Admissions, Personal Knowledge, and Lay Opinions
8. FRE 801(d)(2)(A): Policies and Practical Applications
a. The Opportunity to Cross-examine and Explain
b. Fifth Amendment Concerns
9. Further Elaboration of FRE 801(d)(2)(A)506
a. Preliminary Factfinding on the Identity of the Declarant
b. Admissibility of Party Admissions in Multiparty Cases:
The Bruton Problem
10. Explanation of FRE 801(d)(2)(B): Adoptive Admissions
a. Preliminary Factfinding
b. Justification for the Admissibility of Adoptive Admissions
c. Adoption by Silence
11. Explanation of FRE 801(d)(2)(C) and (D): Admissions by
Agents, Servants, and Employees
a. Preliminary Factfinding
b. Justification for the Admissibility of Statements Under
FRE 801(d)(2)(C) and (D): Necessity, Fairness, and
Reliability
c. Personal Knowledge and Lay Opinions
d. Admissions by Government Employees
12. Explanation of FRE 801(d)(2)(E): Co-conspirators'
Admissions
a. Preliminary Factfinding
 b. Justification for the Admissibility of Co-conspirators'
Statements
13. Elaboration of FRE 801(d)(2)(E): Applying FRE 104 to the
Co-conspirator Exemption
a. Bourjaily v. United States

xxii

b. The Amendment to FRE 801(d)(2): The Requirement of

Additional Evidence
c. Process for Admission of a Co-conspirator's Statement
Key Points
Problems
D. Hearsay Exceptions Not Requiring the Unavailability of the
Declarant
1. FRE 803
2. Explanation of FRE 803(1): Present Sense Impression
a. Preliminary Factfinding
b. Justification for the Admissibility of Present Sense
Impressions
3. Explanation of FRE 803(2): Excited Utterance
a. Preliminary Factfinding
b. Justification for the Admissibility of Excited Utterances
4. FRE 803(1) and (2): Pratical Effects of the Categorical
Approach
a. The Categories Determine Admissibility
b. The Categorical Terms Require Judicial Interpretation
c. Use of the Statement Itself in Preliminary Factfinding
d. Proof of Personal Knowledge
e. Criticism of FRE 803(1) and (2)
Key Points
Problems
5. Explanation of FRE 803(3): Declarant's Statement of His
Then-Existing State of Mind
a. Preliminary Factfinding
 b. Exclusion of “Facts Remembered or Believed”
c. Justification for the State-of-Mind Exception
d. State-of-Mind Utterances Are Classified as Either Direct
or Circumstantial
6. FRE 803(3): Relevant Uses of State-of-Mind Evidence
a. Future and Past State of Mind of the Declarant
b. Statements of Intent to Prove the Declarant's
Subsequent Conduct
c. Distinguishing State of Mind from Past Facts
d. Statements About the Declarant's Will
e. The Hillmon Case: Using the Declarant's Statement of
Intent to Prove the Conduct of Another
Key Points
Problems
7. Explanation of FRE 803(4): Statement Made for Medical
Diagnosis or Treatment
a. Preliminary Factfinding
b. Justification for the Admissibility of Statements for
Medical Purposes
c. Statements About the Cause or External Source Must
Be “Pertinent”
d. Requiring Proof of Medical Purpose

xxiii

8. FRE 803(4): Patient's Statements to Medical Expert

Witnesses
Key Points
Problems
9. Explanation of FRE 803(5): Recorded Recollection
a. Preliminary Factfinding
b. Justification for the Admissibility of Recorded
Recollections
c. Recorded Recollections Created by Multiple Declarants
10. Refreshing Memory versus Recorded Recollection: FRE
612
a. Explanation of Refreshing Memory
b. The Impact of FRE 612 on Refreshing Recollection
c. Witness Memory Lapses in Practice: The Interplay of
Recorded Recollection and Refreshing Memory
Key Points
Problems
11. Explanation of FRE 803(6): Records of a Regularly
Conducted Activity
a. Preliminary Factfinding
b. Justification for the Admissibility of Records of Regularly
Conducted Activities
12. FRE 803(6): Practical Applications and Problems
a. Exclusion for Untrustworthiness
b. Opinions and Diagnoses
c. Records Containing Multiple Levels of Hearsay
d. Computer Documents and Electronic Data
Key Points
Problems
13. Explanation of FRE 803(8): Public Records and Reports
a. Preliminary Factfinding
b. Justification for the Admissibility of Public Records
14. FRE 803(8)(A)(ii) and (iii) in Practice
a. The Meaning of Law Enforcement Personnel
b. The Relationship Between FRE 803(8)(A)(ii) and (iii) and
Other Exceptions
15. FRE 803(8): The Problem of Multiple Hearsay Sources
Within Investigative Reports
a. Is the Report Itself Admissible?
b. Are Otherwise Inadmissible Hearsay Sources
Admissible?
c. Administrative Findings Problems
16. Other Exceptions for Records Under FRE 803
Key Points
 17. Explanation of FRE 803(22): Judgment of Previous
Conviction
a. Preliminary Factfinding
b. Justification for the Admissibility of Criminal Judgment
c. The Admission of Misdemeanor Convictions for
Impeachment

xxiv

E. Hearsay Exceptions Requiring the Unavailability of the

Declarant
1. FRE 804
2. Explanation of FRE 804(a): Grounds for a Finding of
Unavailability
Problem
3. Explanation of FRE 804(b)(1): Former Testimony
a. Preliminary Factfinding
b. Justification for the Admissibility of Former Testimony
Note
4. FRE 804(b)(1): Practical Problems and Applications
a. Former Testimony Offered By or Against a Nonparty to
the Original Action
b. Lack of Similar Motive Due to Differences in Procedural
Context
c. Using Former Testimony at the Current Proceeding
Key Points
Problem
5. Explanation of FRE 804(b)(2): Dying Declarations
a. Preliminary Factfinding
b. Justification for the Admissibility of Dying Declarations
Key Point
Problem
6. Explanation of FRE 804(b)(3): Declarations Against Interest
a. Preliminary Factfinding
 b. Justification for the Admissibility of Declarations Against
Interest
7. FRE 804(b)(3): Practical Applications and Problems
a. Doubts About the Underlying Rationale for the Exception
b. Statements That Inculpate Accomplices
c. Requirement of Corroboration for Inculpatory Statements
in Criminal Cases
Key Points
Problems
8. Explanation of FRE 804(b)(4): Statements of Personal or
Family History
a. Preliminary Factfinding
b. Justification for the Admissibility of Statements of
Personal or Family History
Key Points
Problems
9. Explanation of FRE 804(b)(6): Forfeiture by Wrongdoing
a. Preliminary Factfinding
b. Justification for the Admissibility of Forfeiture-by-
Wrongdoing Statements
c. Acquiescence in Wrongdoing
d. Practical Applications

xxv

Key Points
Problems
F. The Residual Exception
1. FRE 807
2. Explanation of FRE 807
a. Principles and Policies Underlying the Residual
Exception
b. Preliminary Factfinding
c. FRE 807(a)(1): Circumstantial Guarantees of
Trustworthiness
 d. FRE 807(a)(1) (continued): Equivalence
e. FRE 807(a)(2)–(4): Preventing Overuse of the Exception
f. Notice
3. FRE 807 in Practice: How Much Hearsay Is Admitted Under
the Residual Exception
Key Points
Problems
G. Hearsay and the Confrontation Clause
1. Ohio v. Roberts
a. “Firmly Rooted” Hearsay Exceptions
b. Not Firmly Rooted Exceptions Require “Particularized
Guarantees of Trustworthiness”
2. Crawford v. Washington
Crawford v. Washington
Key Points
Problems
Notes
3. The Definition of “Testimonial” Statements After Crawford:
Statements Made During Questioning by Police
a. The “Primary Purpose” Test: Davis v. Washington
Davis v. Washington, Hammon v. Indiana
Key Points
Problem
Notes and Questions
b. The “Primary Purpose” Test: Michigan v. Bryant
Problems
Notes and Questions
4. The Definition of “Testimonial” Statements After Crawford:
Government Forensic Reports
a. Melendez-Diaz v. Massachusetts
Notes
b. Bullcoming v. New Mexico
Problem
Notes
 c. Williams v. Illinois
Notes
5. The Definition of “Testimonial” Statements After Crawford:
Statements Not Made to Law Enforcement

xxvi

a.Child Statements: Ohio v. Clark

Notes
b.Medical Interviews and Examinations
c.Other Types of Nontestimonial Hearsay
6. Testimonial Statements That Satisfy the Confrontation Right
a. The Declarant Testifies
b. Unavailability and Prior Opportunity for Cross-
examination
7. Exceptions to the Requirement of Confrontation
a. Dying Declarations
b. Forfeiture by Wrongdoing
Notes and Questions
H. Reflection on the Hearsay Rule
1. The Traditional Goals of Hearsay Policy
2. The Reliability Theory Does Not Work
3. A Rule of Discretion
4. Abolition
5. Reformulating Hearsay Policy
a. Is There a Need for a Hearsay Rule in Modern Civil
Litigation?
b. Regulation Premised on the Excesses of the Adversary
System
c. Notice-based Admission in Civil Cases: Reliance on the
Adversary System
d. Why Hearsay Should Be Treated Differently in Criminal
Cases
6. A Rebuttal
7. Conclusion
 Assessments

CHAPTER NINE
LAY OPINIONS AND EXPERT WITNESSES
A. Lay Opinions
1. FRE 701
2. Explanation of FRE 701
3. FRE 701: Practical Applications
a. Recognizing Opinions
b. Fact Versus Opinion
c. Rationally Based on the Perception of the Witness
d. Helpful to the Trier of Fact
e. Not Based on Specialized Knowledge
f. Opinion Testimony: Practice Pointers
Key Points
Problems
B. Admissibility of Expert Testimony
1. FRE 702
2. Explanation of FRE 702(a)

xxvii

a. Scientific, Technical, or Other Specialized Knowledge

b. Help the Trier of Fact
c. A Witness Qualified as an Expert
d. Burden of Proof
3. Explanation of FRE 702(b)-(d): The Reliability Requirement
4. Development of the FRE 702 Reliability Requirement:713
Daubert and Its Progeny
a.The Frye Test
b.Daubert
Daubert v. Merrell Dow Pharmaceuticals, Inc.
Notes and Questions
c. Joiner
General Electric Co. v. Joiner
 Notes and Questions
d. Kumho Tire
Kumho Tire Company, LTD. v. Carmichael
Notes and Questions
5. The 2000 Amendments to FRE 702
Key Points
Problems
C. Factual Basis for Expert Opinion
1. FRE 703
2. Explanation of FRE 703
3. FRE 703: Policies, Problems, and Applications
a. Historical Background
b. The Jury's Use of Inadmissible Facts Underlying Expert
Opinion (Inadmissible “Basis Evidence”)
4. FRE 705
5. Explanation of FRE 705
6. FRE 705: Practical Applications
Key Points
Problems
D. Opinions on an Ultimate Issue
1. FRE 704
2. Explanation of FRE 704(a)
3. FRE 704: Policy, Problems, and Applications
Key Points
Problems
E. FRE 702–705: Practical Applications
1. Defining the Scope of Expertise
2. Types of Expert Opinions
3. Types of Expert
a. Retained Versus Percipient Experts
b. Consultants Versus Testifying Experts
4. Working with Experts
5. Direct and Cross Examination of Experts

xxviii
 Key Points
Problems
F. Reflections on Expert Testimony
1. Data on the Use of Experts in Litigation
Samuel Gross, Expert Evidence
Carol Krafka et al., Judge and Attorney Experiences,
Practices, and Concerns Regarding Expert Testimony in
Federal Civil Trials
2. Scientific Evidence and the Daubert Case
a. Introduction
b. Three Models of Expert Testimony
3. Court Appointed Experts
a. FRE 706
b. Is FRE 706 Underutilized?
4. Summary Witnesses
5. Problems in Forensic Science: Overview
6. Problems in Forensic Science: Some Specific Controversies
a. Recent Debates in DNA Testing
b. Psychological and Behavioral Sciences
c. Toxic Tort Causation
d. Traditional Law Enforcement Investigative Tools
Question
7. A Law and Economics Perspective on Experts
Richard A. Posner, The Law and Economics of the
Economic Expert Witness
Assessments

CHAPTER TEN
THE PROCESS OF PROOF IN CIVIL AND CRIMINAL CASES:
BURDENS OF PROOF, JUDICIAL SUMMARY AND COMMENT,
AND PRESUMPTIONS
A. The Process of Proof in Civil Cases
1. The Burdens of Proof in Civil Cases
a. The Burden of Production
Key Points
 b. The Burden of Persuasion
Schechter v. Klanfer
Notes and Questions
Key Points
2. Judicial Summary and Comment in Civil Cases
a. The Advantages and Disadvantages of Permitting
Judicial Summary and Content
b. The Criteria for Evaluating Judicial Summary and
Comment
c. Standardized Comments
d. The Relationship Between Comments on the Evidence
and the Burden of Persuasion

xxix

Key Points
Notes and Questions
3. Presumptions in Civil Cases
a. Irrebuttable or Conclusive Presumptions
Key Points
Problems
b. Mandatory Rebuttable Presumptions
Notes and Questions
Key Points
Notes and Questions
Key Points
Key Point
Problems
c. Permissive or “Weak” Presumptions
Key Points
Notes and Questions
d. The Federal Rules Approach to Presumptions
Key Points
B. The Process of Proof in Criminal Cases
1. The Burdens of Proof in Criminal Cases
 a. The Burden of Persuasion: In re Winship's Mandate of
Proof Beyond a Reasonable Doubt
Notes and Questions
Key Point
b. The Scope of Winship: Explicit Shifts in the Burden of
Persuasion and Other Matters
(1) The Elements Test
(2) Federalism and the Political Compromise Test
(3) The Proportionality Test
(4) Justice Powell's Two-Part Test
Martin v. Ohio
Notes and Questions on Martin
Key Points
Notes and Questions on the Application of Winship
in Other Contexts
c. The Burden of Production in Criminal Cases
Notes and Questions
Key Points
2. Judicial Summary and Comment on the Evidence in
Criminal Cases
Notes and Questions
3. Presumptions in Criminal Cases: The Impact of Winship
Notes and Questions
Key Points

xxx

Problems
Assessments

CHAPTER ELEVEN
JUDICIAL NOTICE
A. Judicial Notice of Adjudicative Facts
1. FRE 201
2. Explanation of FRE 201(a) and (b)
 a. Types of Adjudicative Facts That Are Frequently Noticed
b. The Scope of FRE 201(a): What Are Adjudicative Facts?
c. The Scope of FRE 201(b): The Required State of
Knowledge of Adjudicative Facts That May Be Judicially
Noticed
3. An Application of FRE 201(a) and (b)
In re Thirtyacre
Notes and Questions
4. Explanation of FRE 201(c) and (e)
5. Explanation of FRE 201(d) and (f)
a. Judicial Notice of Adjudicative Facts in Civil Cases: Mini
Directed Verdicts
b. Judicial Notice of Adjudicative Facts in Criminal Cases:
Judicial Comments
c. Timing of Judicial Notice
Key Points
Notes and Questions
Problems
B. Judicial Notice as Part of Judicial Decisionmaking
1. Judicial Cognizance of Common Knowledge Without Formal
Judicial Notice
a. The Jury's General Background Knowledge
b. Judges' Own Background Knowledge
In re Marriage of Tresnak
Notes and Questions
2. Judicial Cognizance of Legislative Facts
Notes and Questions
3. Judicial Notice of Substantive Law
Key Point
Problems
Assessments

CHAPTER TWELVE
PRIVILEGES
A. The Law of Privilege
 1. A General Introduction
2. The Unique Operation of Privilege Rules

xxxi

3. Historical Background and Current Status of Privilege Rules

B. General Structure of Privileges
1. Holder of the Privilege
2. Invocation
3. Scope and Limits
4. Waiver
5. Exceptions
6. Drawing Adverse Inferences from Invoking a Privilege
7. Constitutional Limitations on Privileges
C. The Attorney-Client Privilege
1. Elements of the Privilege
a. Communications with a Lawyer or Representative of a
Lawyer
b. Communications for the Purpose of Legal Service
c. The Scope of Confidential Communications Included in
Privilege
d. Limitations on Waiver of the Privilege
e. Explanation of FRE 502
f. Applying FRE 502: Practical Issues
g. Potential Problems with FRE 502
Key Points
Notes and Questions
Problems
Notes and Questions
Problems
2. The Corporate Client
Upjohn Co. v. United States
Key Points
Notes and Questions
Problems
 3. The Government Client
4. Exceptions to the Privilege
a. Breach of Duty by a Lawyer or Client
b. Document Attested by a Lawyer
c. Identity of Client, Fee Information, and Related Matters
d. Communication in Furtherance of a Crime or Fraud
Problems
5. Reflection on the Attorney-Client Privilege
Ronald J. Allen et al., A Positive Theory of the Attorney-
Client Privilege and the Work Product Doctrine
Notes and Questions
D. The Marital Privileges
1. The Marital Communication Privilege
a. Elements of the Privilege and Its Justifications
b. Holder
c. Scope of the Privilege

xxxii

d. Exceptions
Problems
2. The Marital Testimonial Privilege
a. Elements of the Privilege and Its Justifications
Trammel v. United States
Notes and Questions
b. Exceptions
Key Points
Problems
E. The Physician-Patient and Psychotherapist-Patient Privileges
1. The Physician-Patient Privilege
2. The Psychotherapist-Patient Privilege
a. Jaffee v. Redmond
Jaffee v. Redmond
Notes and Questions
b. Scope of the Privilege After Jaffee
 c. Exceptions to the Privilege
Key Points
Problems
F. The Clergy-Communicant Privilege
1. The Privilege and Its Justifications
2. Scope of the Privilege
a. Definition of Clergy
b. Nature of the Communication
c. Expectation of Confidentiality
d. Exceptions
Key Points
Problems
G. Other Privileges
1. Other Professional-Client Relationships
2. Parent-Child Privilege
3. Communications Made in Settlement Negotiations
4. Privileges Protecting Outside Sources of Information
a. Government Informant's Privilege
b. Journalist's Privilege
c. Scholar's (Academic Researcher's) Privilege
5. Peer Review Privilege
6. Self-evaluative Privilege
7. Government Privileges—Executive Privilege
a. State Secrets Privilege
b. Presidential Communications Privilege
c. Official Information (Deliberative Process) Privilege
8. Miscellaneous Privileges

xxxiii

Problems
Assessments

Table of Cases
Table of Authorities
Index
xxxv

PREFACE
In this sixth edition of our book, we maintain our focus on the study
of evidence law through the text of the Federal Rules of Evidence
and the ideas and principles that underlie those rules. The book
presents the rules in a systematic format that is used consistently
throughout. This format provides students with the text of the rules,
interpretations and illustrations of the rules' terms, an elaboration of
principles and policies used to explain and interpret the rules,
illustrations from recent case law, and problems that call for the
application of each significant rule in its most basic as well as its
most challenging contexts.
We have returned to the book's former name, An Analytical
Approach to Evidence, because we believe it captures one of the
unique contributions of this book. This is a problem-based casebook
designed to elicit a critical examination of the Federal Rules of
Evidence in context and to illuminate the Rules' underlying theories
and perspectives. Analysis is encouraged through explanatory text,
excerpted materials, case summaries, and problems. Lively
discussion and interesting problems engage students in discovering
the principles, policies, and debates that surround evidence law. In
every instance, although we begin with the basics, we deepen the
analysis to the conceptual foundations of the particular aspects of
evidence under consideration, and indeed to the conceptual
foundations of the entire field.
Although the casebook text has been edited throughout, adding
new excerpts from judicial opinions and scholarly work, updating the
case citations that illustrate application of the rules, and adding new
problems, much remains familiar. As always, we have sought
throughout to present each set of problems in ascending order of
difficulty—easy, medium, and difficult. This edition still includes
ongoing “saga” problems that build, in successive chapters, on each
developing “saga” fact pattern. These unique problems demonstrate
how the rules of evidence actually apply to individual items of
evidence in “layers” as students' knowledge of those rules increases.
New to this edition are:

probing discussions of fundamental moral questions (e.g.,

sexual politics rules);
enhanced focus on the way in which evidence law serves not
just an epistemological function but also involves critically
important allocations of authority between trial and appellate
courts, between the trial judges and the parties, and others;

xxxvi

emphasis on another increasingly important aspect of the law of

evidence in its effects on both non-litigation (“primary”) and
litigation behavior;

economic justifications for different rules of evidence;

self-assessment questions, accompanied with answers and
explanations, in each chapter;
additional pedagogical elements, redesigned formatting, and
softened notes/questions to make the discussion less austere
(without sacrificing intellectual sophistication).

As in previous editions, we have not been content to present a

mass of doctrines and cases. We have endeavored instead to show,
through discursive text and problems, the relationship between the
theories underlying the rules and the rules themselves. This
emphasis on the underlying theories reflects our view that the study
of any field of law should not consist primarily of ingesting enormous
amounts of doctrinal “stew.” Rather, the pursuit should be gaining an
understanding of the conditions that give rise to the forms of
regulation of decision making that are contained in the rules of
evidence.
 From its inception, another factor has heavily influenced this book.
We believe that the field of evidence is in large measure a coherent
whole rather than an amalgam of virtually unrelated parts. Unlike
traditional works on evidence, we present an analytic theme in our
text that attempts to show the underlying relationships between the
various common law categories of evidence. This theme is relevancy
and the assumptions about decision making that inhere in a system
of proof based on relevancy. With this theme in mind, we explore all
of the major federal rules of evidence, requiring students to develop
a systematic approach to the admission of evidence that begins with
the relationship of evidentiary facts to the essential elements of the
case. Only with such a beginning can one properly understand the
principles governing the selection of evidence and their judicial
interpretation.
We also emphasize the process by which facts are established in
court, and the roles played by each of the participants in the
courtroom. Chapter One begins with the study of a transcript from a
real case. This introduces students to the process of analyzing
evidence in terms of the essential elements of a legal dispute, as
well as experiencing what is at stake in run-of-the-mill trials. We
believe that the transcript serves as an effective introduction to much
of the course to follow. Although accurate fact finding is the dominant
goal of trial, the rules of evidence also regulate with other goals in
mind, such as efficiency, fairness and incentives to out-of-court
behavior. The transcript usefully illustrates these matters, and we
return to it at relevant points throughout the text. We have also
generated a series of problems on the transcript so that student
investment in reading it pays off with a deeper understanding of the
context within which isolated evidence issues arise and are resolved.
Chapter Two provides additional background information on trial
process and strategy that brings the evidence course alive. After a
brief introduction advising students on how to incorporate the book
into their study of evidence, the chapter describes how trials are
structured, how witnesses are examined, and it begins our
exploration of the relationship between inferential reasoning as used
by the factfinder and the process of presenting proof at trial.
 Chapter Three examines the single most important concept in the
study of evidence—relevance—and introduces students to the trial
judge's discretion to exclude even relevant, and probative, evidence.
Some judicial opinions, including the U.S.

xxxvii

Supreme Court's majority opinion in Old Chief v. United States,

give students a more concrete understanding of how the context of
the whole “case” can influence the judge's exercise of discretion.
Chapter Four discusses the foundation principle underlying
evidence law: that no evidence is admissible until it is first shown to
be what its proponent claims that it is. The chapter analyzes and
elaborates the complex of rules from which this principle is derived,
and applies the principle specifically to testimony and exhibits in
various forms. Because of its close connection to documentary
evidence, Chapter Four also covers the Best Evidence Rule.
Chapter Five focuses on the character and propensity rules. We
start by introducing the primary rule of exclusion, the policies that
justify exclusion, and the policing of the borderline between
forbidden “character” and permitted “non-character” uses of specific
acts. We then turn to instances in which character is a permissible
topic of proof.
Chapter Six contains other relevancy rules. These rules determine
the admissibility of subsequent remedial measures evidence,
settlement and plea bargain discussions, availability of insurance
and offers to pay an opponent's medical expenses. Our analysis of
these rules separates between permissible and impermissible uses
of the evidence and explains how it affects the parties' litigation
conduct and primary behavior.
Chapter Seven presents the doctrines of impeaching and
rehabilitating witnesses, prior to the study of the hearsay rule. The
attention paid to examining witnesses, we believe, helps students
better understand the hearsay rules, which we discuss in Chapter
Eight.
 Chapter Eight unfolds a comprehensive analysis of hearsay
dangers and the hearsay doctrine. This chapter contains revised text
on the problem of “implied assertions” that we think streamlines
presentation without sacrificing accuracy. It also provides an up-to-
date discussion of the U.S. Supreme Court's recent jurisprudence on
the Confrontation Clause.
Chapter Nine, focuses on the rules governing lay and expert
witness opinion testimony, and includes principal Supreme Court
cases on rule 702 and the 2000 amendments to the Federal Rules.
The chapter proceeds to elaborate on both practical and theoretical
issues arising out of expert testimony, concluding with a substantial
reflection section that features excerpts from the National Academy
of Science Report in 2009 largely critiquing the current state of the
forensic sciences.
Chapter Ten has reorganized the presentation of the burdens of
proof and presumptions by focusing separately on civil and criminal
law.
Chapter Eleven has streamlined the study of judicial notice.
The book concludes, as before, with an examination of rules of
privilege in Chapter Twelve, which we thoroughly updated. This
discussion includes material on the recent Federal Rule 502
concerning waiver of the attorney-client privilege.
Despite the substantial amount of text, this book is not a treatise on
the law of evidence. We have not attempted to cover everything.
Rather, we have put together materials that we believe will contribute
to the effective teaching and learning of the law of evidence. Our
selection of materials has been driven by one criterion alone. We
have selected materials that in our judgment are the most effective
pedagogical tools.
Perhaps the most important change in this edition has been the
addition of our new co-author Alex Stein (Cardozo). Professor Stein
is an eminent authority in evidence, torts, medical malpractice,
criminal law, and legal theory, and brings a wealth

xxxviii
 of expertise to the sixth edition. We are very pleased to have him
on board. Professor Swift unfortunately has retired and did not
contribute to this revision. We are very sorry to see her go. Because
her immense contribution to the previous editions continues in the
current edition, Professor Swift's name has been retained among the
authors. Her calm and erudite influence will be sorely missed, and
we wish her well in her new endeavors.

Ronald J. Allen
David S. Schwartz
Michael S. Pardo
Alex Stein

January 2016
xxxix

ACKNOWLEDGMENTS
The authors gratefully acknowledge permission to reprint excerpts
from the following:
Allen, Ronald J., The Evolution of the Hearsay Rule to a Rule of
Admission, 76 Minn. L. Rev. 797 (1992). Reprinted with
permission.
Allen, Ronald J. et al., A Positive Theory of the Attorney-Client
Privilege and the Work Product Doctrine, 19 J. Legal Stud. 359
(1990). Reprinted with permission.
Blakely, Newell H., Article IV: Relevancy and Its Limits, 30 Hous. L.
Rev. 281 (1993). Reprinted with permission.
Chayes, Abram, The Role of the Judge in Public Law Litigation, 89
Harv. L. Rev. 1281 (1976). Reprinted with permission of Harvard
Law Review; permission conveyed through Copyright Clearance
Center, Inc.
Gross, Samuel R., Expert Evidence, 1991 Wis. L. Rev. 1113 (1991).
Copyright © 1991 by The Board of Regents of the University of
Wisconsin System. Reprinted by permission of the Wisconsin
Law Review.
Krafka, Carol et al., Judge and Attorney Experiences, Practices, and
Concerns Regarding Expert Testimony in Federal Civil Trials.
Federal Judicial Center (2002).
McCormick, Charles Tilford et al., McCormick on Evidence (Kenneth
S. Broun ed., 6th ed. 2006). Reprinted with permission of the
West Group.
Park, Roger C., A Subject Matter Approach to Hearsay Reform, 86
Mich. L. Rev. 51 (1987). Reprinted with permission.
Posner, Richard A., The Law and Economics of the Economic Expert
Witness, 13 J. Econ. Perspectives 91 (1999). Reprinted with
permission.
Pennington, Nancy, and Reid Hastie, Juror Decision-Making Models:
The Generalization Gap, 89 Psychol. Bull. 246 (1981). Reprinted
 with permission.
Seigel, Michael L., Rationalizing Hearsay: A Proposal for a Best
Evidence Hearsay Rule, 72 B.U. L. Rev. 893 (1992). Reprinted
with permission. Copyright © 1992 by Boston University Law
Review, Boston University. Forum of original publication. Boston
University bears no responsibility for any errors which have
occurred in reprinting, translation, or editing.
xli

WHY STUDY EVIDENCE?

A STUDENT'S PREFACE
Evidence law is, in one sense, one of the most practical courses that
you will take in law school. It is the study of rules in action, rules that
are interpreted and applied in the often heated context of adversarial
litigation over matters of life and death, personal rights (and
obligations), property rights, human relationships, and even such
matters as the structure of government and the meaning of the
Constitution. As you read the text, the judicial opinions, and the
problems in this book, you will be analyzing and evaluating the
impact that evidence law has on the litigants and the outcomes of
their cases. One of the most significant manifestations of evidence
law is the rules of evidence. We concentrate in this book on the
Federal Rules of Evidence. The Federal Rules were adopted by
Congress in 1975, and since then more than 40 states have revised
their rules of evidence more or less adopting the Federal Rules, in
many instances virtually verbatim. When you first read the Federal
Rules of Evidence you many think them to be cold and sterile
doctrines written in abstract conceptual terms, but you will soon find
them imbued with the human drama of the courtroom. Behind the
formalities of the law there are real people who are called on to
testify concerning matter of great personal and social import, as well
as parties whose cases rest on that testimony.
The study of evidence, however, is not just the study of the rules of
evidence. It is the study of the vast complex of ideas, principles,
customs, and values underlying the process of litigation. The rules of
evidence give form and content to this process—they determine the
admissibility of evidence, define the roles of all the participants at
trial (judge, jury, advocates, and witnesses), and structure the
relationships among these various actors. They reflect our society's
views on many issues, among them: (1) the appropriate means of
resolving disputes; (2) the nature of knowledge, what it means to
“know” something, and how knowledge is transmitted to others; (3)
the dynamics of small group decision-making, and the confidence
that we invest in the common person to reach wise and informed
judgments that affect the lives of fellow citizens; (4) moral and ethical
concerns, such as how difficult it should be for the prosecution to
obtain a conviction in a criminal case, or whether certain individuals
(spouses, children, friends) should have a privilege not to testify
against those close to them; and (5) the relationship between the
ideal of justice and the value of efficiency. The rules of evidence rest
on and are a crystallization of these various, often conflicting, views.
To understand the rules requires an understanding of the
compromises

xlii

they make between competing beliefs and interests; thus, to study

the rules one must engage with the foundation of beliefs that
underlies them.
The study of evidence will serve any lawyer well, no matter what
specialization that person pursues. Obviously litigators must know
and understand the rules of evidence in order to use them
effectively. Do not overlook that while litigation is virtually always the
worst-case scenario of any legal transaction, competent lawyers
must always be prepared for it no matter what the nature of the
relevant legal enterprise happens to be. If a contractual relationship
fails or a merger is not consummated and litigation results, what will
matter is how well the parties will be able to defend their respective
positions. That will be determined in significant measure by the
application of the rules of evidence in the trial itself, and by their
implications throughout pretrial procedures, including negotiations
leading to settlement.
To use the rules effectively, one must understand their meaning,
source, and purpose. To do so requires that one see the rules in
relationship to the assumptions, values, and concerns that give rise
to them. Even if—indeed, especially if—one intends to become a
litigator, it will not do to be content with a cursory grasp of the
language of the various rules. One must be in a position to work with
the rules, and to argue for one's position from the perspective of the
purposes that underlie the relevant provisions.
Whatever legal path the student may be planning to follow, a
thorough grasp of the law of evidence and its conceptual foundations
is a critical component in the education of a responsible attorney.
The value of the inquiry lies not just in some future utility but instead
in its enlightenment of our shared vision of how disputes should be
resolved in a civilized society. With that enlightenment may come—
indeed, we hope will come—disagreement. You may not like all that
you see; and if you do not, you will be in a better position to work for
change through the legislative and rule-making processes.
We attempt in these materials to facilitate an inquiry into the
meaning and use of the rules of evidence and all that underlies
them. At times we focus extensively—in fact, almost exclusively—on
the rules themselves, while at other times we deal quite explicitly
with the assumptions and values from which the rules originate. On
completion of this inquiry, you should have a thorough understanding
of the rules of evidence, as well as considerable appreciation for the
concerns that give rise to them.
xliii

SPECIAL NOTICE ON CITATIONS

In general, some citations and footnotes have been omitted from
quoted material without indication. Footnotes are numbered
consecutively in each chapter; that is, the original footnote numbers
in quoted material have not been retained. Footnotes in quoted
material that are written by the casebook authors are marked “—
E .” In addition, throughout the text we quote from the Federal
Rules of Evidence and from the Federal Rules' legislative history
without giving specific citations. The Federal Rules quoted in the text
are the restyled Rules that became effective on December 1, 2011.
These Rules are available at
http://www.supremecourt.gov/orders/courtorders/frev11.pdf and
https://www.law.cornell.edu/rules/fre.
The Notes of the Advisory Committee appointed by the Supreme
Court to draft the rules remain applicable to the restyled Rules. The
Advisory Committee Notes are set forth at 56 F.R.D. 183. The
judiciary committees of both the House of Representatives and the
Senate held hearings on the Federal Rules. The report of the House
Committee is H.R. Rep. No. 650, 93d Cong., 1 Sess. (1973),
appearing at 1974 U.S.C.C.A.N. 7075; and the report of the Senate
is S. Rep. No. 1277, 93d Cong., 2d Sess. (1974), appearing at 1974
U.S.C.C.A.N. 7051. The Conference Committee report is H.R. Rep.
No. 1597, 93d Cong., 2d Sess. (1974), and appears at 1974
U.S.C.C.A.N. 7098.
We have deleted cert. denied references throughout the book.
1

CHAPTER ONE
THE CASE OF
PEOPLE V. JOHNSON
We start with an edited transcript of a real trial, People v. Johnson.1
A trial transcript is a good place to start for a number of reasons.
Most of you have not experienced litigation, and the transcript allows
you to study a complete trial, to get a sense of its structure and
dynamic, that is, a sense of how it is put together and how it unfolds.
The transcript introduces you to the principal stages of trial process
so that you can begin to appreciate the organization of a case, who
is doing what to whom, and why. The transcript also introduces you
to the Federal Rules of Evidence2 and gives an overview of much
that is to follow in succeeding chapters. We hope that you will get a
sense of the rules of evidence in action, and an awareness of the
distinction between the rules in real life and their theoretical
justifications.
Another reason we begin with a transcript is to increase your
understanding of the human element at work in the law of evidence.
The Johnson case involves serious issues of real people in a
dangerous environment with a lot at stake. The case concerns
criminal charges of battery brought against an inmate at a California
state prison. But Pelican Bay is not just any prison; rather, it was
designed as a high-tech “state of the art” facility to house the state's
most violence-prone inmates. The Security Housing Unit (SHU) at
Pelican Bay was designed for control of prison gang members, not
for rehabilitation. A class action lawsuit brought under the federal
civil rights act alleged that the isolation conditions in the SHU
amounted to cruel and unusual punishment. Prisoners housed in the
general population areas of the prison also complained of the use of
excessive force by guards and the denial of basic medical attention
and access to legal counsel. In January of 1995, U.S. District Court
Judge Thelton Henderson found that Pelican Bay staff routinely used
unwarranted violence on inmates (based

on 105 pages of documented violent incidents including assaults,

beatings, and naked cagings in inclement weather, and an unusually
high number of lethal shootings). He also found that Pelican Bay
operated a medical and mental health care program that was
significantly deficient. The judge ordered prison officials to stop
housing mentally ill inmates in the SHU, but refused to hold that
incarceration there constituted cruel and unusual punishment for all
prisoners. Judge Henderson's opinion is reported as Madrid v.
Gomez, 889 F. Supp. 1146 (N.D. Cal. 1995).
As you begin reading the transcript, remember that much has
already occurred in the Johnson case. The parties have selected a
jury and have participated in a preliminary hearing, mutual discovery,
and motions in limine. These pretrial events shape issues of proof,
as you will see. In addition, they shape the understanding of the
participants: Judges are informed, and perhaps influenced, by what
they learn in the pretrial stage; jurors are educated in the voir dire
process; and the lawyers learn more about the respective strengths
and weaknesses of their own case and that of their opponent.
Indeed, this last point cannot be overemphasized. The single most
important variable in success at litigation is preparation. If you take
away one “rule” of evidence from this course, let it be “prepare,
prepare, prepare.” As you read the transcript, try to get an insight
into how well these lawyers prepared.

THE PEOPLE OF THE STATE OF CALIFORNIA V. JAMES

JOHNSON
 S C ,D N C ,C
DATE: Monday, July 27, 1992, 1:45 . .
A
For the People: William Cummings, II, ESQ., District Attorney
For the Defendant: Mark Deemer, ESQ., Attorney at Law
The Court: In the People versus Johnson let the record reflect that
all jurors, counsel and the defendant are present. I am going to
read to you now the charge that has been filed against the
defendant, again reminding you that the information is not
evidence but is charged as follows:3 “Superior Court of Del
Norte, State of California. The People of the State of California,
plaintiff, versus James Johnson, C-66125, defendant, No. 92-
190-X. Information.
“The District Attorney of the County of Del Norte, State of California, hereby charges
James Johnson (C-66125) with having committed, in the County of Del Norte, the
crime of:
“Count 1. Battery on a correctional officer, in violation of Section 4501.5 of the Penal
Code, a felony.

3
“On or about March 28, 1992, the defendant did willfully and unlawfully being a
person confined in a State Prison of this state, commit a battery upon the person of
any individual who is not himself a person confined therein to wit, Officer Huston.
“Count 2. Battery on correctional officer, in violation of Section 4501.5 of the Penal
Code, a felony.
“On or about March 28th 1992, the defendant did willfully and unlawfully being a
person confined in a State Prison of this state, commit a battery upon the person of
any individual who is not himself a person confined therein to wit, Officer Van Berg.
“Dated June 23rd, 1992, William Cummings, II, District Attorney.
Signed Wm. Cummings for Richard Davis Deputy District Attorney.”4
Mr. Deemer: At this time there is a motion to exclude witnesses. I see two are in the
courtroom.
The Court: All persons who are present as witnesses in the matter will have to remain
outside the courtroom and not discuss their testimony with any other witnesses until
the hearing is concluded.5 Counsel are responsible for enforcing this order as to their
own witnesses.
Now, before we get under way with the evidence there are also a few other things.
One is an instruction that I will read to you that will cover how you are to handle certain
things that may come up during the course of the trial. Because you must determine
the facts in this case solely from the evidence, you must be guided by the following
 principles.6 One, you must not consider as evidence any statement or arguments of
counsel, meaning the attorneys, except that if counsel agree or stipulate to any fact
you must regard such fact as being conclusively proved.
Second, you must not consider as evidence any off the record evidence that was
rejected or any evidence that is stricken out by me.
Third, as to any question to which an objection is sustained, you must not speculate
as to what the answer might have been or as to the reason for the objection.
And fourth, since a question is not evidence you must not suspect that any
insinuation suggested by a question is true. In other words, you can consider the
questions only as they supply meaning to the answer. Because, for instance, an
answer of “yes” or an answer of “no” doesn't mean anything unless

4
you know what the question was. But the question is not evidence. Only the
evidence that comes from the witness is evidence. So nothing that is said in a question
should be assumed by you to be true or considered by you to be fact.
It may also happen during the course of the trial, in fact it has happened a couple
times already, that you have seen we'll have what are called bench conferences, and
this is where the attorneys come up here to the bench and we discuss matters out of
your hearing. The reason for this is from time to time things come up in the course of
the trial. Sometimes it has to do with objections to the admissibility of evidence.
Sometimes it has to do with motions the attorneys are making before the court or other
matters that should be heard out of the presence of the jury. If it is going to be
something lengthy we'll probably give you a recess and have you step out of the court
room. But if it is something very brief, to save the time of doing that, we come up here
to the bench and we try and speak in tones of voice that are low enough and for that
very reason you should try not to overhear what we are saying. If it would help you,
certainly feel free to converse among yourselves as long as it is not about the case. If
you would like to stand up in place and stretch and generally make yourself
comfortable, feel free to do that and we can get back to you shortly if that happens.7
If there is anyone in the jury that feels they need a recess for any reason, please do
not hesitate or feel embarrassed. If you need to use the rest room or whatever it is, I
would rather take care of it, just take a few minutes and break the proceedings and
have you take care of it and then you won't be distracted and thinking about something
else when you are listening to the evidence when we are here in court.
Also, if any of you would like to take notes you may do so. Usually it's not necessary.
I expect in this case where it's going to be a fairly short trial lasting a couple days or so
that you will probably be able to hold most everything in your memory. We do have the
court reporter taking everything down on a word for word basis. So during your
deliberations if you need to know exactly what some witness said that will be available
to you and that testimony can be read back to you by the reporter. A few juries like to
take notes and you may if you wish.8

5
 The one caution is you should be very careful that your note taking does not
interfere with your ability to closely watch and observe the witnesses as they give their
testimony because it oftentimes happens in trials and it may happen in this trial that
one witness will testify to something and another will testify to exactly the opposite.
Just in the words that they are saying you may not be able to figure out which one you
believe. It may be necessary for you to rely upon such things as facial expression or
tone of voice or what we call body language, the general things that we use in our day
to day life when we decide whether we believe what somebody is telling us or we don't.
Don't let your note taking interfere with closely watching and scrutinizing and observing
the witnesses as they testify.
Also, you should not on your own undertake any investigation of this matter.9 You
should not try to interview any witnesses, not try to visit the scene where anything may
have happened. You should not consult any reference works and you should not try to
perform any experiments. And that is because the evidence in this case, strictly the
evidence that comes from the witnesses, is all that should be considered in deciding
what your verdict should be in this case. So do not try to gather evidence of facts or
information from any other source except from the witnesses.10
I have already mentioned to you that you should be very careful not to—when you
encounter the attorneys or other people involved in this case during the recesses be
very careful not to fall into conversation with them.11 We mentioned that before lunch.
One final thing and that is that you should not consider as evidence the fact that the
defendant is here in physical custody of officers. You should not take into consideration
as evidence either for him or against him whether he is confined in physical restraints
or the clothing that he is wearing or that there may be additional security here in the
courtroom. Those are not facts that should be considered in any way as showing
whether the defendant is guilty or not guilty. Disregard those matters and decide the
case strictly on the evidence.
All right. The final thing before we get under way with the evidence is that the
attorneys have the opportunity to make opening statements to the jury and

6
these are very brief outlines the attorneys could give you if they wish showing what
they expect the evidence in the case is going to prove. Sometimes it happens, of
course, that the evidence comes out differently from what they expect. The witness
may remember something differently from what one or the other of the attorneys may
think the witness is going to testify to. But generally speaking the attorneys can give a
fair outline of what's going to happen in the case and what they expect the issues are
going to be. But, of course, if there is any difference between what they say the
evidence is going to be and what it actually is, of course you follow the evidence.
Since the prosecution has the burden of proof and presents evidence first, the
prosecutor makes the first opening statement. When he is finished defense counsel
has a choice. He can either make his opening statement at that time or if he prefers he
can wait until the prosecution presents their evidence and then make his opening
statement. Mr. Cummings?12
 Mr. Cummings: Thank you, Your Honor.13 Ladies and gentlemen, we are about to get
under way and the purpose of my opening statement is basically to give you some idea
of where I believe our witnesses are going to take us in testimony. Witnesses are the
people who testify from the witness stand, nowhere else. In other words, as the judge
told you, what the attorneys have to say is not evidence, and you notice neither side
here have raised their hands to tell the truth and nothing but the truth. So your
testimony comes from the witness stand.
As the prosecutor in the case I expect to call three, probably four witnesses. I may
call more. I have an option of putting on rebuttal witnesses if I want to. You will see that
if it happens. Eye witnesses are going to start out with Officer Huston who has worked
at Pelican Bay State Prison who is what we call a percipient witness, which means he
saw, he was present when the incident happened in 1992 at one of the branches at
Pelican Bay State Prison. They call it B Facility. And I will have testimony about what B
Facility means and what type of people are housed in B Facility.
The defendant, Mr. Johnson, was in his cell with his cell mate, a person by the name
of Butler and that for whatever reason they refused to give up some trays, food trays.
That on that date, March the 28th, 1992, Butler and inmate Johnson were in their cell.
They had been fed in their cell, and, as I indicated before, for unknown reasons they
weren't going to give up their trays.

7
At that point in time several officers were summoned to go over to the cell and try to
talk to them to give up their trays. And it's a mainline production, meaning they have to
feed, get back the trays, and they have a lot of people to take care of. Officer Huston
will testify that basically there was a couple trays inside the cell and that he and other
officers went into his cell along with some other people and talked to them about giving
up the trays.
Officer Huston will tell you—and I would suspect Officer Van Berg will tell you
basically the same story—that Mr. Johnson had possession of the trays, he was
holding on to them, and that in the door of the cell, the actual cell door, there was a
little food port door. You can slide one tray at a time through there. And you can't slide
two through and you can't slide one with a lot of garbage piled on top, just enough to
slide one tray back and forth.
For whatever reason, inmate Johnson, the defendant in this case, was standing in
the cell with the trays in his hand and he had had some discussion with the officers
about a package. He wanted some package. And he was not going to relinquish those
two trays. So basically what happened in the case, as Officers Huston and Van Berg
and Walker will testify, is that a sergeant sent some of them over to discuss the matter
with inmate Johnson and to try to persuade them basically verbally to give up the tray,
“we have got to get on our route, our day's business.”
He asked at that point in time to see a sergeant. And the officers will testify that what
they told Johnson at that point in time was, “We'll get you a sergeant; we'll have a
sergeant drop by and talk to you, but we can't do it right now. We have got our work to
do. We have got to finish up what we are doing.”
At that point Johnson was going to give up the trays. He was not verbally abusive.
He was not physically—didn't appear to be physically dangerous at that point. He was
 just standing there with his trays. So the officer—and he wasn't too far back from the
cell door. So one of the officers, the Officer Smith, signaled to the gentleman who
controls—the sectional officer who controls the doors electronically or hydraulically but
they are controlled from a different location—go ahead and open up the cell door.
So the cell door was opened a substantial distance, wide enough for somebody to
charge out. And behind the door you have Johnson hanging on to the two trays piled
with garbage. And basically at that point with Walker in front, Van Berg, Smith was
there and Huston was there, their testimony is going to be that Johnson dropped the
trays, kind of lowered his head a little bit and charged Officer Walker who was kind of
at the head of this line where he can get the job done.
At that point in time the officers met him. The approximate location was the doorway
to the cell. Stopped him at the door as he tried to approach them rapidly. He was
swinging his fists, clenched right fist, that the officers basically pushed him back into
the cell. The cells are not that large. Got him on top of a table and subdued him. One
officer had handcuffs on one side of him and Mr. Johnson still was swinging, being
combative. He was still trying to injure people and they were trying to subdue him. So
four or five officers at this point, trying to subdue him and get him cuffed up,
handcuffed.

8
During the course of that melee two officers were injured. One ended up with a
broken bone—I think it was a bone chip in his thumb—and was off work a period of
time, suffered some injuries. Another officer went down to Sutter Coast Hospital with a
shin injury, received a small laceration on his shin.
These are the two counts of battery that I am going to ask you to consider. The
people will put on a final witness, probably an officer by the name of Henderson who
will testify about a 969B package. It's a package of documents from the prison certified
to verify that that person was lawfully in custody at Pelican Bay State Prison at the
time. I do have to prove that he was in custody at the time. And it basically establishes
the fact that he was in our prison system as well, which is another element that I have
to prove.
I would expect at this point in time that would be my case in chief. Depending on
how and what the defense puts on, I may call rebuttal witnesses, probably officers or
actually two lieutenants, Foster and Kurtz. I will call those two as rebuttal. Thank
you.14
Mr. Deemer: Reserve.15
The Court: First witness.
Mr. Cummings: Officer Huston I believe is outside.
The Court: Raise your right hand.

G H
called as a witness by the People, after having been sworn to tell the
truth, the whole truth and nothing but the truth, was examined and
testified as follows:
 The Clerk: Be seated and state your name and address for the record.
The Witness: George Huston, Pelican Bay State Prison.
Direct Examination

Q: by Mr. Cummings: Thank you, Your Honor. Sir, what's your occupation?16
A: Correctional officer.
Q: How long have you been a correctional officer?
A: Six years.
Q: Where are you currently employed?

9
A: Pelican Bay State Prison.
Q: How long have you worked at Pelican Bay?
A: Since November '89.
Q: Was that basically the opening date for the prison?
A: Yes.
Q: So you are part of the original team that started out at the institution?
A: Yes, sir.
Q: Sir, were you working in the capacity of a correctional officer on March the 28th,
1992?
A: Yes.
Q: Did you have occasion to come into contact with an inmate by the name of Johnson
seated at the other end of this table?
A: Yes.
Q: Do you recognize him today?
A: Yes, I do.
Q: What facility was he housed in, do you know?
A: Facility B.
Q: What is the significance of Facility B?
A: It's a general population.
Q: As opposed to what, sir?
A: Security Housing Unit.
Q: Is there a transition of inmates from one facility like SHU, Security Housing Unit, to,
say, general population?
A: Yes.
Mr. Deemer: Objection. I don't see the relevance.17
The Court: Sustained.
Q. by Mr. Cummings: Officer, what type of people—what type of inmates are typically
housed in Facility B?
Mr. Deemer: Again, objection. I don't see the relevance.18

10
The Court: Approach the bench.
 (The following bench conference was had outside the presence of the jury.19)
The Court: Where is the relevance?
Mr. Cummings: The relevance is the fact that Facility B is a transition facility from Security
Housing Unit to General Population and there are more incidents of violence and
reported violence in general at Facility B than there is in the General Population.
Conversely there is less out of SHU.20
Mr. Deemer: Less what?
Mr. Cummings: Less reported violence and there is actually less in SHU than there is in
Facility B. Facility B is a transition facility where they take people who have been in
SHU and kind of mainline them back into the way of General Population.
The Court: How does that help the jury?
Mr. Cummings: I think where you have an allegation of battery against the officers I think
it's important that they understand that the facility which this person was housed is a
facility where—it's a facility where people go, they are in transition. I am not going to
say in transition from what to what. The fact of the matter is that you have already
given these preliminary rulings that you are going to allow Mr. Deemer to go into some
issues of “Do you know Officer Walker's propensity” or “Do you know his reputation for
violence among other inmates?”21 I think when you have that kind of testimony
coming out,

11
I think it is relevant on the issue that in Facility B we have people who are in fact more
prone to violence and have proven to be more prone to violence and are in fact in
transition trying to get back into the general mainstream of General Population.
The Court: I will allow you to establish that this is a maximum security section, but I think
the implication that the jury is likely to get from this testimony if you are allowed to go
forward with it is in fact he has just been in trial for something coming out of SHU. I
don't think you should be allowed to do that because it gets into impermissible
character evidence.22 So if you want to describe physically what Facility B is and if
you want to describe what precautions are taken in Facility B, you can do that. But you
can't go into what he may have done in prison unless it becomes otherwise relevant. At
this point I don't think it is relevant so I am going to sustain the objection.
(The following proceedings were had in open court.)
Q. by Mr. Cummings: Officer Huston, would you tell me physically how Facility B is set
up? Are they single-celled, are they double-celled cells?
A: They are double-celled cells.
Q: Are they arranged in what sort of a format?
A: One hundred twenty-eight inmates available per housing unit, eight housing units.
Q: This is still a Level IV maximum security prison setting; is that correct?
A: Yes.
Q: Sir, do you work or were you working on March the 28th, 1992, in B Facility?
A: Yes, I was.
Q: What was your position or what did you do in B Facility?23
A: Yard officer.
Q: What's a yard officer?
A: Yard officer maintains safety and security on the yard, General Population inmates.
And in that first response, emergency response.
Q: When you say “first response,” what do you mean by “first response”?
A: In an emergency I am designated to respond anywhere in the facility.
Q: So if there was an incident in B Facility, it would be expected that you would respond;
is that correct?24

12
A: Yes.
Q: Are you aware of an incident involving inmate Johnson on March 28th of this year?
A: It wasn't really an incident.
Q: What was it?
A: It was a simple denial of a breakfast tray. When an inmate gets fed in the morning
they are supposed to—after breakfast they gave up their breakfast trays and
silverware. Floor officer on that day said that inmate Johnson and his cellie, cell mate
Butler, were holding their breakfast trays.
Q: And at some point in time somebody summoned you; is that correct?
A: Yes.
Q: Who was that, do you know
A: I don't remember on the day. There was several of us and we were told to go over and
see if we could get the breakfast trays.
Q: What did you expect to do that day, did you know?
A: Go over and simply, “Give us the trays.”
Q: Talk to them first?
A: Yeah.
Q: Is that what you did?
A: I didn't myself. The officer that ordered him to give up the trays is the one that ordered
—gave him the direct order.
Q: Which officer ordered him to give up the trays?
A: Officer Smith.
Q: Was the order to give up the trays once or more than once if you know?
A: More than twice.
Q: Could you see from where you were at inmate Johnson inside his cell?
A: Yes.
Q: Physically tell us how he appeared at the time that he was ordered to give up and
relinquish those two trays.
A: Quiet. Did not say anything except he asked to see the sergeant.
Q: Did he indicate why he wanted to see a sergeant?
A: No.
Q: Did he have anything in his hands as you remember?
A: Not at that immediate moment. After the food port was opened, he picked up his trays
and acted like he was going to give us the trays.
Q: You indicated the food port. Where is the food port located?
A: In the middle of the door about waist high.
Q: Can you describe it for us?
A: It's approximately probably a four-to-five-inch opening. Has a door on it, probably
twelve inches wide.
Q: It's a hinged door?
A: Yes.

13
Q: And that door opens and shuts?
A: Yes, and it is locked when it's not used.
Q: It is locked when it's not used?
A: When it's not used.
Q: Normally a person can pass how many trays through a food port opening?
A: One.
Q: How many trays did inmate Johnson have in his hands?
A: He had two trays with disposable garbage on the top of them.
Q: Would those two trays with the garbage on top pass through the food port door?
A: No.
Q: How would a person normally pass the trays through, just slide them through?
A: Yes. Officer would unlock the food port and it's got another lock. When you pull down
on it and at that time they pass the food tray through and the officer grabs it and takes
it.
Q: At some point in time it became clear to you that inmate Johnson was not going to
slide the trays through the food port door.25
A: No. When he picked up the trays and brought them to the food port it was not subtle, I
guess. He didn't say anything, he was calm, walked up to the door and held the tray.
Q: At that point in time did somebody order the door be opened?
A: Yes. Officer Smith.
Q: And is that an appropriate method to get back the trays?
A: Yes.
Mr. Deemer: Excuse me. A, lack of qualifications; B, lack of foundation; and, C, it's
leading.26
The Court: Are you asking for an expert opinion, Mr. Cummings?
Q. by Mr. Cummings: Officer Huston, you stated that you have worked as a correctional
officer at Pelican Bay for six years?
A: Yes.
Q: And during those six years, did you receive special education and training for your
job?
A: Yes.
Q: What was that?
A: There are training manuals, and training courses for correctional officers on-site and
throughout the state that we attend.

14
Q: And does this training include the handling of specific problems that inmates
sometimes cause?
A: Yes it does.
Q: And based on this training, do you have an opinion on the proper means to handle
situations like inmate Johnson's, that is, on whether it is appropriate to open the cell
door? Just tell us whether you have an opinion.
A: Yes I do.
Mr. Cummings: I would offer Officer Huston's opinion now based on his special
experiences and training at Pelican Bay.
The Court: You may answer.
Q. by Mr. Cummings: Is opening the cell door an appropriate way to get back the food
trays?
A: Yes, on the General Population side it is. If the inmates are General Population
inmates so they are out of their cells a lot of the time and if they are, what we say,
programmed and everything else and they seem calm and everything else, well, we—
yeah, we get the trays that way, especially when they have more than two trays or
have two trays with garbage on the top.
Q: I am going to draw a distinction here between the Secured Housing Unit, the SHU
inmates, and the General Population inmates. Inmate Johnson was at that point a
General Population inmate?
A: Yes, he was.
Q: And if this incident had occurred on the Secured Housing Unit side, the other section
of the prison, would the doors have been opened in this fashion?
A: Absolutely not.
Q: So the procedure is different from your experience whether a person is in General
Population or is in the Secured Housing Unit?
A: Yes, it is.
Q: For inmate Johnson, housing in General Population, this was an appropriate way to
retrieve the trays, if necessary?
A: Yeah.
Q: Was the door opened?
A: Yes, the door was opened.
Q: What happened when the door opened?
A: Inmate Johnson—when the door was opened up inmate Johnson immediately
instantly dropped the food trays. He was standing just inside the door, up next to the
door. Dropped the food trays immediately and bowed his head, brought up his fists
and just tried to come through the door and hit Officer Walker in the chest.
Q: Where did Officer Walker make contact or where did Johnson make contact with
Walker?
A: In the door. In the doorway after the door was opened. Officer Walker was on the
outside of the cell.
Q: Do you recall the other officers who were present?
A: The other officers that I knew that were present were Officer Smith and Officer Walker
and Officer Van Berg.

15
Q: Were there other officers there that you don't recall by name?
A: Yes, Officer White was there, but I didn't find that out until after the incident.
Q: When officers are retrieving food items, trays, et cetera, in General Population are
they wearing protective gear?
A: No.
Q: What happened when Johnson charged the officers and made contact with Walker?
A: Officer Walker immediately grabbed him and pushed him inside the cell and inmate
Johnson fell back up against the desk area, which is approximately three feet inside
the cell.
Q: What was inmate Johnson doing at that time?
A: Combative.
Mr. Deemer: One moment, Your Honor. I am going to object to that term. It's
conclusionary.27
The Court: Overruled.
Q. by Mr. Cummings: Describe for me what you mean by “combative”?
A: Swinging his arms, not complying with orders, using his strength.
Q: What sort of orders were being given to Johnson at that time?
A: To cuff up.
Q: What's cuff up?
A: Handcuff.
Q: Standard procedure?
A: Yes.
Q: Was there a cell mate in the same cell?
A: Yes.
Q: Do you recall his name?
A: Inmate Butler.
Q: What did inmate Butler do, if anything?
A: Inmate Butler was immediately told to get down by Officer Smith in the cell.
Q: What does “get down” mean?
A: “Get down” means hit the floor in a prone position.
Q: Did he comply?
A: Yes, he did comply immediately.
Q: And he was secured, too?
A: Yes, Officer Smith restrained him.
Q: Why was inmate Johnson and inmate Butler secured, handcuffed? What's the
purpose?
A: Because if they are combative or not complying with orders; disciplinary reasons, you
know.

16
Q: Officer safety reasons?
A: Yes, officer safety and security.
Q: Inmate Butler basically did exactly what he was told to do?
A: Yes, he did.
Q: Was there kind of a wrestling or a pushing or a shoving or some sort of an altercation
inside the cell?
A: Yes. Inmate Johnson was not complying. He was swinging, he was kicking, he was
using his strength against us. In fact, after we got him pushed up against the desk
 area, we couldn't get him handcuffed in the cell. So we brought him out of the cell, put
him in the prone position outside the cell. He was in the prone position. He wouldn't
give up his hands for restraint. I finally got one handcuff on the right wrist. Several
orders—he wouldn't give up his left one. He kept it underneath him. When I did get it
out from underneath him, he brought—and husbanding his strength he wouldn't let me
have his wrists. It took me a little while to get him restrained and in the left handcuff.
He was resisting it.
Q: Using both his hands and his feet?
A: Both hands and feet.
Q: Was he saying anything during this period of time?
A: No.
Q: Sir, were you injured in that altercation?
A: Yes, I was.
Q: Describe your injuries for us.
Mr. Deemer: Excuse me. May we approach the Bench at this time?
(The following proceedings were had at the bench, outside the hearing of the jury.)
Mr. Deemer: My understanding is that the witness is going to testify that he received a
gash and yet he also testifies at the preliminary hearing—and I assume his testimony
isn't going to change today—that he doesn't know how he received the injury. So I
think this testimony at this point becomes irrelevant.
Mr. Cummings: I think that's an awkward summary. What he is going to testify to is he
received the injuries as a result of this melee. He cannot testify that inmate Johnson
slugged him, kicked him or directly caused it. But for the melee he certainly would not
have been injured in that fashion. Obviously this witness can testify to what he
observed on his own body. He doesn't have to be a doctor or a nurse or anything else
to testify what injuries he personally received on his own body, and that's all I am
looking for, and whether or not he went to the hospital or went home or returned to
work.
The Court: I would possibly preclude you or limit you in some fashion if you attempted to
call a doctor.
Mr. Cummings: I have no intention of it.
The Court: He can testify to his own knowledge what he observed on his own body. I am
not going to preclude him from that.
(The following proceedings were had in open court.)
Q. by Mr. Cummings: Officer Huston, where were you injured?
A: My left shin had a one-inch gash.

17
Q: Did you ever seek medical attention for that?
A: Yes, they did a triage and then I was sent to Sutter Coast Hospital.
Q: And you were treated at Sutter Coast?
A: Yes.
Q: How long did this whole thing take—or how little time did it take?
A: Everything happened real fast. I couldn't give you a time on it. Everything was
instantaneous from the time the food trays were dropped and Mr. Johnson trying to
 get through the door and I really couldn't give you—several—probably several
seconds. When the adrenaline is flowing you have no idea how long it is.
Q: Sir, when you are working as a yard officer as you were that day, do you carry a side-
handled baton?
A: Yes, I do.
Q: In this incident involving inmate Johnson did you have to—or did you have time to
remove your side-handled baton?
A: I did not. At that time I had no time to.
Q: I take it, then, you were not expecting trouble when the door was being opened.
A: Absolutely not.
Q: You were taken by surprise?
A: Yes, I was.
Mr. Cummings: Thank you sir. Nothing further.
Cross-examination
Q. by Mr. Deemer: Officer Huston, who at that point unlocked the food port?
A: Officer Smith.
Q: And then was anything done with the food port prior to the door being opened?
A: You mean was there anything—it was opened prior to the door being—
Q: But was it then closed again?
A: I could not say whether it was or not.
Q: Now, the defendant, if he was going to pass you these trays they can be passed
through the food port one at a time?
A: Yes.
Q: And that's a normal way to pass through the food port?
A: Yes.
Q: Now, normally the inmates aren't fed in the cells, are they?
A: Not all the time, no—
Q: And they are fed in the cells on this particular instance because they are on lock-down?
28
A: I don't know what the particulars were at that time. They might have been on a lock-
down.

18
Q: Normally you only feed them in the cell when inmates are on lock-down, don't you?
A: Normally, except if the kitchen isn't running right, the dining room isn't running right or
other—if we get some confidential information or whatever, yeah.
Q: Now, did any of the other officers at the time you were all at the door—and I take it
there is eight or ten officers at the door; is that correct?
A: I have no idea if there was eight or ten. I am saying there was the four that I know of.
Q: But there were more than four. There were some other officers—
A: I understand that there was, but I didn't have any identification and know who the
officers are and how many others.
Q: Hey, I am not trying to trip you. All I am trying to figure out is there were four officers
there that you know including yourself?
A: Yes.
Q: And there were some officers you didn't know?
A: Yes.
Q: You don't remember what the total number of the other officers were?
A: No.
Q: Could it have been as many as eight or ten?
A: I guess maybe, yes.
Q: Now, did any of the officers just prior to the time the cell door was opened put on
some gloves?
A: I have no idea. I didn't put any on my myself, no.
Q: Do you recall any officers putting on—pulling out the side-handled batons, PRC 24 or
something like that?
A: No, I don't recall that.
Q: Now, when the door was opened—first of all, there is absolutely nothing aggressive
about the defendant up until the time the door is opened; is that correct?
A: No, there wasn't anything aggressive about him until he dropped the trays.
Q: Okay. And when the door is opened Walker is standing in front of him?
A: Yes.
Q: And at that point the defendant is standing there and he has got two trays in his hands
and he just drops the trays like that; is that correct?
A: Instantly.
Q: And brought his hands up toward his head?
A: He brought them up, yeah.
Q: How were they shaped when he brought them up towards his head?
A: In a clenched fist.
Q: And at that point you observed Walker push him?
A: I, at that point—he had struck Walker in the chest.
Q: With what?
A: With his fist.
Q: And then Walker pushed him back?
A: And Walker pushed him back into the cell.
Q: And then the melee ensues?
A: Yes.

19
Q: Now, you search inmates' cells frequently, don't you?
A: In my job once in a while I do.
Q: And when you search an inmate's cell, whether he is in General Population or in SHU,
the first thing you do is get the inmate out of the cell; is that correct?
Mr. Cummings: Objection. Relevance.
The Court: Overruled. You may answer.
The Witness: If you are going to search the cell, yes, you bring the inmate out and—out of
the cell.
Q. by Mr. Deemer: In your training except when you are forming some sort of what they
call a cell extraction team, you are never supposed to be in the same room like a
closed room, like a cell or a sally port or something like that with an inmate, are you?
29
A: Not in a cell with an inmate. In a sally port, yeah, you are in with the General
Population inmates.
Q: Let's stick with a cell. The reason you don't go into a cell with an inmate is because
you are afraid something might happen; is that correct?
A: It's safety and security.
Q: So wouldn't the normal procedure of removing these trays have been to order the
inmates to the cell port to cuff up and remove them from the cell?
A: It depends on the circumstances.
Q: All right. How long have you known Officer Walker?
A: Approximately one and a half years.
Q: You weren't at Folsom with him?
A: No.
Q: If something is to be removed forcibly from an inmate or an inmate is to be forcibly
moved, isn't the normal way to do it by means of a cell extraction team?
A: If he is to be forcibly removed from his cell?
Q: Either something is to be forcibly removed from him or he is to be forcibly moved from
the cell. In either instance—and he is in the cell. Isn't the cell extraction team normally
the way to do that?
A: If he fails to comply with cuffing up and stuff like that, yes, it could be done.
Q: Prior to opening the cell door you never asked the inmate to cuff up, did you?
A: No, not that I—not myself, no.
Q: Now, when you opened the door—or excuse me. When the door was opened, did you
expect that the trays were going to be handed out to you?
A: Yes. Yes, I did think he was going to give the trays to the officer.
Q: Now, in connection with this case did you prepare some sort of a report?
A: Yes, I did a 115, CDC 115 report.
Q: And that's a rules violation report?
A: That's a rules violation report.
Q: And that's basically what is done for disciplinary purposes; is that correct?
A: Yes.

20
Q: Do you have a copy of that with you?
A: Yeah, yes, I do.
Q: Could you look at that? Have you got it there?
A: Yes.
Q: On the CDC 115—and I am asking you to go down one, two, three lines, the sentence
that begins “The inmates were given repeated orders.” Would you read that to
yourself?
A: “The inmates were given —”
Q: Just read it to yourself. You don't have to read it to the jury.
A: Yes.
Q: All right. And in that report basically you state that Officer Smith instructed the control
booth officer, quote, “to open the door to the cell in order for staff to enter and retrieve
the trays.” Is that correct?
A: What line are you reading there?
Q: One, two, three, four, five, six lines down. I think that is the fifth line down. “Officer
Smith instructed the control booth officer,” quote, “to open the door.” Do you see that
there?
A: Yes.
Q: So Smith instructed—what you thought at least at that point in time was that staff was
going to enter and retrieve the trays; is that correct?
A: Well, when you say “enter,” if I am handing my hand through the door I am entering
the cell.
Q: But earlier you testified that he was going to hand—you expected the trays to be
handed out; is that correct?
A: Yes, hand them right at the door, yes.
Q: Now, on the next line down you indicate that Johnson rushed toward Correctional
Officer Walker; is that correct?
A: Yes.
Q: Attempting to strike him with clenched fists; is that correct?
A: Yes.
Q: Doesn't say any place in there that he actually struck him with a clenched fist, does it?
A: What line are we reading here? Yes.
Q: It doesn't say that, does it?
A: No.
Q: And it doesn't say anything in your report about an open food port, does it?
A: No.
Q: It doesn't say anything in your report about who opened the food port, does it?
A: No.
Q: Sir, do you remember testifying at the preliminary hearing?
A: Yes, I do.
Q: Is it correct to state—you have had an opportunity to review your preliminary hearing
transcript, haven't you?
A: Yes, I did read it.
Q: By the way, did you discuss your testimony with some of the other officers?
A: No.

21
Q: And is it correct that based on your testimony from the preliminary hearing transcript
you don't know how you received the gash in your leg?
A: No, I don't.
Q: And, sir, in connection with injuries that you received on the job you get some sort of
Workers' Comp; is that correct?
Mr. Cummings: Objection. Relevance.30
Mr. Deemer: Want me to make my offer of proof in front of the jury or the bench?
The Court: Overruled. You may answer.
The Witness: Yes. Yes, I do get workmen's compensation.
Q. by Mr. Deemer: And officers get a different level of Workers' Comp if they are injured
by an inmate as opposed to some sort of accidental injury; isn't that correct?
A: Yes.
Q: If you are injured by an inmate you get three-quarters of your base pay as Workers'
Comp. If you just happened to have an ordinary injury on the job it's one-half; is that
correct?
A: No. If it's an assaultive by an inmate the first three days I get back on sick time. So in
other words, if I am out on sick time because of an injury from an inmate, well, then I
don't lose those three days' sick time. It's taken off my books and it's covered. Doesn't
come off my books.
Q: But if you have been injured on an ordinary type accident, that would come off your
books?
A: Yes, the first three days would be on-site injury. The first three days I would lose, okay,
and then would be picked up by workmen's comp.
Q: And there is also a difference in the Workers' Comp rate, too; isn't there?
Mr. Cummings: Same objection. Relevance.
The Court: Overruled.
The Witness: It's two-thirds pay whether it is one injury or not, whether it's a staff injury
from an inmate or—
Mr. Deemer: No further questions.

Redirect Examination31
Q. by Mr. Cummings: If a person is in General Population is it to the best of your
knowledge appropriate for food trays to be retrieved in the fashion that

22
they were retrieved in this case? In other words, open up the door a little bit.
A: Yes.
Q: There was nothing wrong with that?
A: No. I had a housing unit for a year and a half down there with General Population
inmates. They are programmed inmates.
Q: Tell us what “programmed” means.
A: Program is they go to work, they are—disciplinaries are very few, they are usually not
staff assaultive. I don't know how to say this. They are calm inmates. They are
programmed to prison life.
Q: Now, that is very different from somebody who is in another portion of the institution
that is, a SHU, Security Housing Unit, inmate; is that correct?
A: Oh, yes, it's a lot different in Security Housing Unit.
Q: If hypothetically this same incident happened on the Secured Housing Unit side of
Pelican Bay, which is not where it occurred, if it happened over there would it be
appropriate for the correctional officers to order a door opened to retrieve the tray?
A: No.
Q: Why not?
A: Because they are assaultive to inmates or staff. They are highly disciplinary.
Q: Is it safe to say that if they are in the other side, the Secured Housing Unit side, you
are basically expecting trouble all the time?
A: Yes.
Q: Are you expecting less trouble or hopefully none at all when they are in the General
Population side?
 A: Yes, hopefully, yes.
Q: What would you have done if inmate Johnson had been in the Secured Housing Unit?
What would have been appropriate then?
A: I would have a vest on. I would have a partner with me before I went to the cell. When
I picked up the breakfast tray I would open the food port. There would only be one
inmate up to the food port and he would pass the tray in and I would not be standing
in front of the food port.
Q: You take additional precautions?
A: Oh, yes.
Q: It's embarrassing to even ask you this, but are you in any way financially benefitted by
getting injured on the job?
A: Heavens, no. I have got a scar to prove it, and I don't like my scar.
Q: That scar came out of this incident?
A: Yes, it did.
Mr. Cummings: Thank you sir. Nothing further.
Mr. Deemer: Nothing.
The Court: Thank you. You are excused. You can either leave or stay, as you wish. Next
witness.
Mr. Cummings: Officer Van Berg.
The Court: Come up to the front, please, and raise your right hand.

23
R V B
called as a witness by the People, after having been sworn to tell the
truth, the whole truth and nothing but the truth, was examined and
testified as follows:
The Clerk: Be seated in the witness chair and state your name and business address for
the record.
The Witness: Richard Van Berg.
Direct Examination
Q. by Mr. Cummings: Your business address is fine. Pelican Bay State Prison?
A: Right.
Q: Officer, what's your occupation?
A: Correctional officer.
Q: How long have you been so employed?
A: Six years.
Q: Where are you currently stationed?
A: Pardon?
Q: What's your current assignment at the prison?
A: B Facilities at Pelican Bay.
Q: How long have you been at Pelican Bay?
A: Two and a half years.
Q: You were there when the institution opened?
A: Yes.
Q: Sir, were you working as a correctional officer on March the 28th, 1992?
A: Yes, I was.
Q: Did you have occasion on that day to come into contact with an inmate by the name
of Johnson?
A: Yes, I did.
Q: Same individual seated at the end of counsel table?
A: Yes, it is.
Q: Do you recall where he was?
A: He was inside of his cell.
Q: Was there a cell mate?
A: Yes, there was.
Q: Do you recall his name?
A: Not offhand.
Q: What is your routine assignment in B Facility?
A: I am a search and escort officer.
Q: Would you tell us what a search and escort officer does?
A: Searches cells, escorts inmates, delivers 115 rules violations, assists the program
sergeant. He has a variety of duties.
Q: Were you involved in attempting to retrieve some trays from inmate Johnson on that
date?
A: Yes, I was.

24
Q: Were you assigned to that or was that your normal duty for that day? Did someone tell
you to assist?
A: I was ordered to go to A block and assist in receiving the trays.
Q: Had you had any prior contact with inmate Johnson?
A: No.
Q: Do you know inmate Johnson at all?
A: No.
Q: What other officers were in front of inmate Johnson's cell when you got there?
A: The only two that I recall were Officer Smith and Walker.
Q: Were there other officers besides those two and you don't recall the names?
A: Yes.
Q: Did you hear Officer Smith make any orders or any commands of inmate Johnson?
A: Yes.
Q: What did he order him to do?
A: He ordered him to return the food trays to him through the food port on several
occasions.
Q: I take it two or more?
A: Yes.
Q: Could you observe what inmate Johnson was doing from your position?
A: From what I could see he was just standing at the door holding his food trays.
Q: Door was closed at that point?
A: Yes.
Q: I am referring to the full cell door now, not the food port door.
A: Right. The food port was open.
Q: Do you recall if the food port door was open?
A: Yes.
Q: Did you have a pretty good view of the person behind that door?
A: Fairly well, yeah.
Q: You can tell whether or not they are swinging their arms or they look like they might be
combative, I take it.
A: Yes.
Q: Did it appear to you that inmate Johnson was going to be combative?
A: No, he was just standing there holding those two trays and had once asked to speak
to a sergeant.
Q: And did you hear anybody reply what would happen as far as getting a sergeant to
see him?
A: He was told that he could see a sergeant but first he had to return the food trays.
Q: Did he say anything?
A: No.
Q: Did he take one of the trays off the other tray and slide it on through the food door as
ordered?
A: No.
Q: He just stood there with the two trays in his hand?
A: Yes.

25
Q: At some point in time did Officer Smith order the door be opened?
A: Yes.
Q: Was the door open?
A: Yes, it was.
Q: Was it open wide enough so that inmate Johnson could charge through if he wanted
to?
A: Yes.
Q: Were you expecting that to happen?
A: No.
Q: Did inmate Johnson—was he verbally assaultive or verbally threatening at all?
A: No.
Q: Was he physically assaultive? Did he appear to be physically dangerous at all?
A: No, not at that point.
Q: When the cell door opened what happened?
A: Inmate Johnson just dropped the food trays and rushed, you know, one sudden step
towards the door.
Q: Did he do anything with his hands?
A: I seen one hand come out through the cell door. I believe it was his right hand and it
was in a clenched fist. Officer Walker was standing right up against the door so when
it opened he was attempting to assault Officer Walker.
Q: Let me make this clear. Did inmate Johnson make forward motions towards
Correctional Officer Walker?
A: Yes.
Q: Or did Officer Walker make motions towards Johnson?
A: No, inmate Johnson stepped towards Officer Walker.
Q: So he moved forward?
A: Yes.
Q: Did he appear to be attempting to fight or strike Walker?
A: Yes
Mr. Deemer: One moment. That's leading.
The Court: Overruled. You may answer.
Q. by Mr. Cummings: Did you see inmate Johnson strike Officer Walker?
Mr. Deemer: Same objection.
The Court: Overruled. You may answer.
The Witness: Actual body contact, no.
Q. by Mr. Cummings: Is that because from your position you couldn't see it?
A: Yes.
Q: What did you see Officer Walker do when inmate Johnson moved toward him?
A: The two just came together, Officer Walker had ahold of inmate Johnson and they
were going back inside the cell.
Q: Is that appropriate? Is that what a correctional officer should do in that situation is take
command of him?
A: Yes.

26
Q: At some point in time did you come in contact with the other officers' hands on inmate
Johnson?
A: Yes.
Q: Was that inside the cell or outside the cell?
A: That was outside the cell.
Q: And why did you get involved at that point?
A: I assisted Officers Walker and I believe Huston in trying to get inmate Johnson's arm
behind him so we could place it in handcuffs.
Q: And at that point in time was inmate Johnson being combative?
A: Yes.
Q: Was he being resistive?
A: Yes, absolutely.
Q: Was he complying with the orders that were being given him at that point?
A: No.
Q: Were you injured, sir?
A: Yes, I was.
Q: Where?
A: My left thumb.
Q: How?
A: I'm not sure how it happened.
Q: In the course of that altercation you were injured, I take it.
A: Yes.
Q: Did you seek medical attention?
A: Yes, I did.
Q: Where did you go?
A: Sutter Coast Hospital.
Q: Did they tell you that something had happened to your hand?
A: Yes, I had a bone chip.
Q: One of the bones in your hand was chipped?
A: Yes, sir.32
Mr. Cummings: Thank you sir. Nothing further.
Cross-examination
Q. by Mr. Deemer: I have been watching you around the court. Those cowboy boots
aren't state issue, are they?
A: No.
Q: Sir, you wrote a report in this matter, didn't you?
A: Yes, I did.
Q: You have a copy of that report with you, don't you?
A: Not with me, no.

27
Mr. Deemer: If I could approach the witness, Your Honor.
The Court: Yes.
Q. by Mr. Deemer: You will have to pardon my underlining, but I would like to show you
your report and see if it refreshes your recollection at all.33
Mr. Cummings: I don't believe there has been a question posed that indicates he does not
recall.
Mr. Deemer: I would just appreciate it if he would review it.
The Witness: Yes, I'm done with that.
Q. by Mr. Deemer: There is nothing in that report that gives any indication about a food
port being opened, is there?
A: No.
Q: How high up is the food port from the floor?
A: I'm going to guess probably three and a half feet.
Q: And the food port is up high enough so that, for example, if you want to move an
inmate or have an inmate cuff up that he can basically back up to the food port and
stick his hands sort of like that; is that correct?
A: Yes.
Q: And so basically the food port is probably just a little bit lower than waist high for most
people?
A: Yeah, probably pretty close to waist high.
Q: Now, who opened the food port?
A: Officer Smith, I believe.
Q: And how did he open the food port?
A: Take your key and take the padlock off the food port and then open it up.
Q: And again your report doesn't make any mention about the defendant being—
requested to pass food trays through the food port, was there?
A: No.
 Q: Now, as a practical matter while the defendant is standing in front of the door with
these—he is standing with two trays in his hand; is that correct?
A: Yes.
Q: If the port is open the trays could just be slid right through; isn't that correct?
A: One at a time, yes.
Q: And of course also if the doors—if the food tray door is open somebody could just
reach in and grab a tray fairly easily, is that correct, if somebody handed it to them?
A: If it was pushed out to you. I wouldn't advise anybody sticking their hands though
there.
Q: Would it be fair to state that most of the inmates are afraid of Officer Walker?34
A: That what?

28
Q: That the inmates are afraid of Officer Walker?
A: No.
Q: And you don't know how you sustained the injury that you sustained?
A: No.
Mr. Deemer: No further questions.
Mr. Cummings: Officer Walker.

B W
called as a witness by the People, after having been sworn to tell the
truth, the whole truth and nothing but the truth, was examined and
testified as follows:
The Clerk: Be seated in the witness box and state your name and business address for
the record, and could you also spell your name, please?
The Witness: Brandon Walker and I am at Pelican Bay State Prison.
Direct Examination
Q. by Mr. Cummings: Thank you. Sir, what's your occupation?
A: Correctional officer.
Q: How long have you been a correctional officer?
A: Just over five years.
Q: What prison are you currently assigned to?
A: Pelican Bay State Prison.
Q: How long have you been at Pelican Bay?
A: Since April of '91.
Q: Where did you come from, what institution?
A: Folsom.
Q: Sir, were you a correctional officer on duty on March the 28th, 1992?
A: Yes, I was.
Q: Did you have occasion on that date to come into contact with inmate Johnson?
A: Yes.
Q: Do you recognize inmate Johnson today?
A: Yes, I do, sir. He is sitting over next to Mr. Deemer.
Q: Before March the 28th, 1992, the day of this incident, did you know inmate Johnson?
A: No, I did not.
Q: Had you had any prior contact to your knowledge with inmate Johnson at Pelican
Bay?
A: Not to my knowledge.
Q: What about at Folsom?
A: Not to my knowledge.
Q: What's your assignment at Pelican Bay or what was your assignment on March the
28th?
A: B Facility, 7 block, floor.
Q: What's a floor officer do?
A: We do just cell searches. We have to take inmates to R and R for packages or for
picture ID, we take them there. Basically it's an escort position.

29
Q: Is feeding part of your normal duties?
A: Oh, yes, sir.
Q: Actually takes up quite a bit of time?
A: Well, for cell feeding it takes about an hour to feed both buildings. And then if we are
feeding in the dining room it takes anywhere from an hour and a half to two hours.
Q: When you say you worked normally 7 Block, is that the same block that inmate
Johnson is on?
A: No, sir.
Q: I believe he is in 8 Block; is that correct?
A: That is correct.
Q: Were you sent to inmate Johnson's cell that day?
A: Yes, I was.
Q: Who sent you?
A: Sergeant Kurtz.
Q: What were you told?
A: I was told that he had two food trays that he would not give up and we were to go and
relinquish those trays.
Q: How did you expect to do that, do you know?
A: Well, ideally it would have been to open the food port and have him hand us the trays.
Q: When you arrived on March the 28th, what other officers were present outside
Johnson's cell?
A: My partner. He came. The two yard officers, Smith and Huston, they came. And
Officer Van Berg. So there were five of us.
Q: Do you know whether any of those officers normally work 8 Block or were they all
sent?
A: They were all sent from the yard.
Q: When you arrived did you make—did you order inmate Johnson to give up the trays?
A: No.
Q: Did you hear somebody else do it?
A: Yes.
Q: Who?
A: Officer Smith.
Q: How many times, roughly?
A: Three or four. He had been sitting on his bed and then when he started telling him to
give up the trays then he stood up and stood at the door. So three, four times maybe.
Q: Was inmate Johnson saying anything to any of the officers at that time?
A: No, he indicated that he had a 602, which is an appeal form that the inmate fills out for
a sergeant, and then he was requesting to see a sergeant at that time.
Q: Did you hear anybody respond to his request to see a sergeant?
A: Yes, Officer Smith did.

30
Q: What did he say?
A: He said that he would be permitted to see the sergeant but that we needed to have
the food trays at that time.
Q: Why couldn't you just stop the whole operation and get him a sergeant right away?
A: Because sergeants on the yard have got other duties and if we were to set precedents
in calling a sergeant over every time there was a small problem, then sergeant—we
wouldn't be able to operate with just one sergeant in the yard.
Q: Somebody ordered the door to be opened?
A: Yes.
Q: Who?
A: Smith.
Q: And when Officer Smith ordered the door be opened, you were the first one who
would normally have contact with whoever was behind it?
A: Right, because of my position where the door was opening. As the door opened I was
number one.
Q: What were you expecting to happen?
A: I was expecting to get the trays and then to leave.
Q: I take it you had your own job to do that day?
A: Yes.
Q: Did you carry on that day a side-handled baton?
A: Every day, yes.
Q: In this incident did you pull your side-handled baton?
A: No, I did not.
Q: Did you use your side-handled baton in any fashion?
A: No, sir.
Q: If you are expecting trouble, officer, do you normally pull out your side-handled baton
if you are anticipating it?
A: If I am anticipating it, yes.
Q: Were you anticipating trouble on this day in this incident?
A: No, I was not based on—he was not showing any signs of any kind of tension or
anger or anything. He was merely standing with two trays with trash all over them.
Q: That's what I want to go into next. Was he being verbally abusive to anybody?
A: Not at all.
Q: Did he give you indications from his body language that he was going to be
aggressive or going to be violent?
A: None.
Q: The door opened up. What happened next?
A: He dropped the food trays.
Q: Then what happened?
A: Then he lunged towards me.
Q: Did he make contact with you?
A: Yes, he did.
Q: What part of his anatomy struck what part of your anatomy?
A: He attempted to strike me in the facial area with his fists, but as soon as he lunged
towards me and basically, you know, grabbed my body, then I was able

31
to turn him back around and push him back into the cell trying to put him on the floor.
Q: Is that what you are trained to do?
A: Yes.
Q: Is that what you are supposed to do to take control of the situation?
A: Yes.
Q: And when you got your hands on him did he go backwards or what happened?
A: No. We were kind of almost kind of like dancing. We were kind of wrestling standing
up and trying to get him to go to the floor and the whole time he was still trying to
punch me. You know, he was punching me in the side.
Q: You two were basically face to face real close together?
A: Right, holding on to one another.
Q: And you are doing your best to hold on to him and he is attempting to strike you?
A: Yes.
Q: And he is striking you?
A: Yes, he is. And kicking.
Q: And kicking? Were there other officers behind you?
A: Yes, there was.
Q: Did several of them go into the cell also?
A: Yes.
Q: At some point in time did you actually end up on the ground?
A: Yes, I did.
Q: Did somebody get a handcuff on him?
A: Before he left the cell he had handcuffs.
Q: One or both, do you remember?
A: He had both.
Q: Before he left the cell?
A: Uh-huh.
Q: Was he resisting being handcuffed?
A: Ever since—ever since he lunged towards me. See, when we are assaulted out there
it's our job to, you know, communicate as much as possible telling him what we want
them to do. And in this case we were all telling him to get down and his cellie was
possibly a problem. So one of the officers went in and told him to stay back and he
resisted the whole time.
Q: When you say “he,” you are referring to Johnson.
A: Inmate Johnson, yes.
Q: Were you injured to the point of having to receive any outside medical treatment?
A: No, I was not.
Mr. Cummings: Thank you sir. Nothing further.
Cross-examination
Q. by Mr. Deemer: Sir, you prepared a report in this matter, did you not?
A:Yes, I did, sir.

32
Q: And you got it with you?
A: Yes.
Q: And you got an opportunity to review it today, haven't you?
A: Yes.
Q: That report doesn't mention anything about food ports, does it?
A: Well, or cell ports.
Q: I am talking about your report, the one you signed.
A: Yes, sir, I am looking at that right now. No, it does not indicate.
Q: And when the door gets open you say the defendant dropped the trays; is that
correct?
A: Yes, yes, he did.
Q: About how far from the door is he when the trays dropped?
A: An inch. Well, the trays—we have to count for the distance that composes the trays
was about maybe twelve inches plus a couple more. He was within a foot and a half.
Q: And the door opens and the trays drop; is that correct?
A: That is correct.
Q: Do you recall seeing his head drop?
A: No, I don't recall that.
Q: Do you recall what he did with his head?
A: No, I don't.
Q: You say Johnson's hands come up; is that correct?
A: I'm sorry?
Q: Johnson's hands come up?
A: His hands come up simultaneously as he is lunging toward me, yes.
Q: And how far out the door does he get?
A: Just about—he wasn't all the way out of the door.
Q: And you are telling me that Johnson is totally cuffed in the cell itself; is that correct?
A: Yes, he was.
Q: At some point in the cell you had him—I wasn't sure exactly what you are talking about.
But you simply kind of demonstrated there to the jury.35 You had him actually turned
around with his hands behind his back and pushed over something?
A: Over the desk.
Q: And at that point that's when he was cuffed?
A: Yes.
Q: And then he was taken outside?
A: Yes, he was.
33
Q: You came here from Folsom; is that correct?
A: That is correct.
Q: And regardless of what your beliefs are about what your behavior patterns are, isn't it
fair to state that inmates are generally afraid of you?
Mr. Cummings: Objection. Lack of foundation.
The Court: Overruled. You may answer.
The Witness: I don't know the fact that an inmate is afraid of me. Why would they be
afraid of me?36
Q. by Mr. Deemer: Well, I will put it this way. Are you aware of the fact that inmates are
afraid of you because you tend to be, say, a little bit more physical with them than they
think you should be?
A: No, I don't think that's accurate.
Mr. Deemer: I have no further questions.
Redirect Examination
Q. by Mr. Cummings: Sir, why did you transfer from Folsom to Pelican Bay?
A: The area.
Q: I take it it was your choice?
A: Oh, yes.
Q: Do you know what a 602 is?
A: Oh, yes.
Q: What is it?
A: It's an inmate appeal form.
Q: Is that where the inmate typically could write down grievances regarding an officer?
A: Sure.
Q: When an inmate grieves an officer on a 602 that's an actual document, correct?
A: Yes, it is.
Q: Are you made aware of that?
A: I am supposedly. If it pertains to me, yes.
Q: And by CDC policies are you required to respond to that?
A: Within five days.
Q: To an actual written response?
A: Yes.
Q: To your knowledge had you had any other contact with Johnson anywhere in the CDC
system or outside the CDC system before March 28th of this year?
A: Prior to the day that he refused to give up his food tray, I don't think I have ever met
the man.
Mr. Cummings: Thank you. Nothing further.
Recross-examination
Q. by Mr. Deemer: Emotionally exciting though, isn't it?
Mr. Cummings: Objection. Relevance.
The Court: Overruled. You may answer.

34
Q. by Mr. Deemer: It's emotionally exciting, though, isn't it, when you are involved in an
altercation?
A: Well, is a victim emotionally excited?
Q: Well, it's emotionally exciting when you win, isn't it?
Mr. Cummings: Object as being argumentative.
The Court: Sustained as argumentative.37
Q. by Mr. Deemer: When you get into one of these altercations with an inmate is
it fair to say your adrenaline gets pumped up pretty good?
A: Oh, absolutely. And then understand this, it's not my desire to go and get into a
physical altercation because not only is that not my job, but I could get hurt. And so
when I am asked by the department to go and do something that is going to require
possibly physically taking something away or restraining them, I have possibilities of
getting hurt and that's not what my intentions are.
Q: When you go to—when you went to the door you are not dressed the way you are
now, are you?
A: Oh, no.
Q: You got a jumpsuit on of some sort. Let me rephrase it. Some sort of utility type
fatigues on; is that correct?
A: I might have. If we are not on lock-down then I am not entitled to wear the jumpsuit-
type clothing.
Q: Do you recall whether you had a jumpsuit-type clothing on or fatigue clothing?
A: I was not wearing fatigues, no.
Q: What were you wearing that particular day?
A: I don't recall.
Q: But regardless of what you are wearing when you go in there, your name tag or some
sort of a name thing is on.
A: Absolutely.
Q: Your shirt?
A: That's part of the uniform, yes.
Q: And those cell doors, they got little holes in them, don't they?
A: Yes.
Q: When you stand up close to the cell door you can look outside and you can see
what's there?
A: I'm sure I wouldn't have to stand even right up to the cell door. You can probably see
me if I was standing in the day room with my name.
Mr. Deemer: No further questions.
(Court was adjourned at 4:05 . ., to be resumed at 9:00 . ., Tuesday, the 28th
day of July, 1992.)

35
C C , C .,
DATE: Tuesday, July 28, 1992, 9:00 . .
(The following proceedings were had in camera.)
The Court: We are in chambers out of the presence of the jury. Both attorneys are
present. The defendant is not present. Do you waive his appearance for this?
 Mr. Deemer: Yeah.
The Court: Mr. Cummings, you have indicated you wish to make a motion out of the
presence of the jury.
Mr. Cummings: I do, Your Honor. It regards the offer of testimony from inmate Grant
which I believe has been transported and is available today for testimony. Inmate Grant
was approximately one week ago, maybe ten days ago at the most, found to be 1368.
Actually I believe it was a stipulated 1368. And that he was not competent to stand
trial in his own case and could not assist counsel and didn't know the nature of the
proceedings. And I find it somewhat amazing that someone who there has been a
finding of 1368 on and a pending transportation order to Atascadero is being offered as
some sort of a witness. This is the same individual who wants to talk about an instance
going back to December of '91 if my memory serves me. In other words, he is not
claiming to offer anything as a percipient witness to this action. He is claiming that he
has had previous dealings with one or two of the officers but nothing to add as far as
this particular incident.
Mr. Deemer: The Grant testimony is going to be directed, I hope—and I agree that he is
certified 1368 and I'm not sure I am going to get this out of him as a witness. He
rambles all over the place. Grant's testimony is going to be directed that he has had
prior instances with Officer Walker and Officer Walker has a reputation and he knows
who Walker is and the reputation amongst the inmates for using force and violence to
excess.
The Court: Well, competent to stand trial and competent to take an oath are not the
same.38 And if anything I would say standing trial involves a good many more
considerations. If Grant appears to be reasonably rational as the

36
questioning proceeds, he can testify. If his testimony comes out as gibberish, of course,
we can terminate the testimony.
Mr. Deemer: I freely admit it may well come out as gibberish because his attention span is
so short I don't think he can, you know, at this point he is not capable of lying anyhow.
Mr. Cummings: How do you know?
Mr. Deemer: You don't. In other words, all I'm saying is his attention span is so short there
is no way you can tell him “I want you to testify to such and such a thing,” and he is
going to get on the stand and testify to it. Admit that's a problem with him and I think
that's something the DA can comment on to the jury. I think that's for the jury to take a
look at.
Mr. Cummings: Is it a problem you can tell him what to say?
Mr. Deemer: I assure you, you could not tell him what to say.
The Court: Have you spoken with him this morning?
Mr. Deemer: I have not spoken with him this morning. I tried to cut my witness list down
substantially. I haven't looked. What I propose to do is to call the two inmates and one
of whom observed Walker's incident with Grant in the—outside the kitchen and will
basically testify as to what it is and what that's based on, what their fear is of Walker
and what it's based on and also basically what took place in the cell during this
incident. And I'm probably not going to call the other lieutenants because after some
brief discussions with them it's obvious they are all going to support, you know—it's
 officer versus inmate or inmate versus officer so they are not going to undercut their
officers. . . .
(The following proceedings were had in open court.)

C C , C .,
DATE: Tuesday, July 28, 1992, 9:00 . .
The Court: The record will reflect that all jurors, counsel and defendant are present. You
may call your next witness.
Mr. Cummings: Officer Smith.

S S
called as a witness by the People, after having been sworn to tell the
truth, the whole truth and nothing but the truth, was examined and
testified as follows:
The Clerk: Please be seated and state your name and business address for the record.
The Witness: Stephen Smith, Pelican State Prison.
Direct Examination
Q. by Mr. Cummings: Sir, what's your profession?
A: Correctional officer.
Q: How long have you been a correctional officer?
A: Eight years.

37
Q: What institutions have you worked at?
A: I worked at the Idaho State Prison for two years, San Quentin for three and a half
years, and I have been in Pelican Bay for approximately three years.
Q: Are you part of the start-up team up here?
A: Yes, sir.
Q: Sir, were you a correctional officer employed in that capacity on March the 28th,
1992?
A: Yes, sir, I was.
Q: And did you have occasion to come into contact with inmate Johnson and actually
Johnson's cell mate Butler on that date?
A: Yes, I did.
Q: Under what circumstances?
A: I was—I'm a yard officer. I was out on a yard and my supervisor asked me, wanted me
to go over to A block and pick up a tray. Apparently Mr. Johnson didn't want to give up
his food tray that morning out of his cell. So I went over to pick up the tray.
Q: And where was inmate Johnson in the cell when you first saw him?
A: He was sitting on the end of the bunk, the lower bunk.
Q: Where were the trays if you remember?
A: The trays were approximately less than a foot inside the door sitting on the floor next
to the wall.
Q: How many were there?
A: There was two trays with a pile of garbage on them.
Q: Would those trays pass through the food port door if they wanted to?
A: If you took the tray, took the garbage off and everything one at a time they would.
Q: If you were going to pass it through the food port door would you have to pass it
lengthwise or could you pass them crosswise?
A: Lengthwise.
Q: So I take it the food port door is somewhat narrow.
A: I really can't tell you the exact width of it. I have never measured one, but it would be
difficult to put a tray through sideways.
Q: What exactly did you order inmate Johnson to do?
A: Well, if I may, I didn't order him at first. What I did is I walked up. He was sitting on the
end of the bunk. He had a piece of paper in his hand. As I arrived at his cell I said,
“How are you doing? What's up? Are you having a bad day?” Mr. Johnson at that time
stood up. He said, “I need to see a sergeant, man.” I said, “Well, you can see a
sergeant later on. Right now I am here to pick up those trays. Sergeant asked me to
get them.”
At that time he walked over towards the door. He had some paperwork in his hand, a
602, a green piece of paper. Started to come towards the door and he never spoke
again. He reached down, picked up the trays, both trays with a pile of garbage. He had
them both in his hand like in this manner. He had the piece of paper underneath
holding all of that in his hands. He walked over to the door. And it's a normal procedure
—as I walked up to the door I had already opened up the port—

38
Q: The food port door?
A: Yes, sir. I had opened that up. It's a little slot about this wide, that high. I already
opened that up as I arrived and he stood there in front of the door. He never spoke
again, not another word.
Q: Did you ask him anything else?
A: Yes, I asked him at that time, “Can I have the trays?” He stood there looking at me.
Q: No response?
A: No response, just stood there looking. I asked him a second time, “Are you going to
give me the trays?”
Q: Let me show you this photograph that has been marked Exhibit 1 for identification.
Can you tell me what that is a photograph of?
A: It's the port door.
Q: Do you mean the food port door like the one in inmate Johnson's cell door?
A: Yes.
Q: How do you know?
A: It looks just like the food port doors in all the cells in B facility.
Q: Is it a fair and accurate picture of the food port door?
A: Yes.
Mr. Cummings: I move the admission of People's Exhibit 1.39
Mr. Deemer: This photograph may be misleading, Your Honor, because it does not show
the width of the cell door. It does not show how wide the food port door is, to any scale.
Mr. Cummings: There has already been testimony that the port door is twelve inches
wide, wide enough for the tray. The jury knows this, so the photograph is not
misleading.
The Court: I'll admit it in this situation since there has been testimony about its width
already. Exhibit 1 is received in evidence.
Q. by Mr. Cummings: Now, Officer, if the door to this food port is open, and you are
standing in front of it, you can pass your trays through here just by sticking them
through?

39
A: One at a time. It was obvious that he had such a load in his hands that he could not
pass them through the port.
Q: Did it appear to you that inmate Johnson was acting aggressively towards the
correctional officers?
A: Well, when we first arrived no, sir. He had a very docile attitude. He was not
aggressive. That's why we went with the procedure we did. There was no vulgarities,
which is the normal—you usually get, “Well, I want to see so and so; you are not doing
this and that.” There was no argumentativeness out of him at all. When I explained to
him, “You will see the sergeant after you give me the trays, I will tell the sergeant to
come and talk to you,” he got up, walked over in a very docile manner.
Q: If an inmate had been acting violently, verbally abusive, kicking, spitting, screaming,
would it then be appropriate to have the door opened?
A: No.
Q: What is the difference?
A: Well, if the inmate is violent, we just can't open the door up and have him attack us.
So if he is already in his cell, we are not going to open the door up just to get, you
know, a bunch of trouble.
Q: Do you know why inmate Johnson wanted to see a sergeant?
A: I found out later. I didn't know then. But apparently he had a 602, something about
some property. He wanted his property right now or something and I don't work the
unit so I wasn't involved in that. I found out later.
Mr. Deemer: Objection. Hearsay and not the best evidence. If there is going to be
testimony about the 602 report it should be admitted on its own.
Mr. Cummings: The exact contents are not important here, Your Honor. He had a
complaint. That's all we're testifying to.
The Court: Testimony about the complaint in general is permitted. Detail about the
contents is not important.
Q. by Mr. Cummings: So, tell us in general what a 602 is.
A: A 602 is an appeal process that the convicts use if there is a discrepancy, any type of
discrepancy. They can utilize it if they don't get enough toothpaste, if they think they
want some toothpaste. If an officer is disrespectful they can utilize a 602, which is an
appeal process. We have four different levels on that. It will come to you directly,
which is an informal level, which you respond directly to that convict. If he has a
complaint against me, I file or I give him a written answer on that. It is processed
through the department. We have a system where it is logged in a log and then once
 —if he is not satisfied with my response, he sends it on up the line. There are four
separate levels.
Q: So there is a whole appeal process for inmates to air their grievances?
A: Yes, sir.
Q: Is the point of that to cut down on friction between correctional officer staff?
A: Absolutely. That is the main purpose of the 602 process is to alleviate any problems at
a lower level.
Mr. Cummings: Thank you. Nothing further.

40
Cross-examination
Q. by Mr. Deemer: Sir, is it fair to state that some inmates at least have a certain fear of
officers' use of force and violence, whether or not that is justified?
A: I'm sure they probably feel that way.
Q: And is it also fair to state that if an officer starts into a cell with the presence of other
officers that it would be reasonable for an inmate to assume that some sort of force
and violence is going to be imposed upon him?
Mr. Cummings: Objection. Lack of foundation.40
The Court: Overruled. You may answer.
The Witness: I don't think so. We are on a GP.
Q. by Mr. Deemer: You are what?
A: It's a General Population and many times we go in the cells with the inmates there.
Q: But basically the more officers—talking of the type of situation we are talking about
here. The more officers that are outside the door, the more likely it is for an inmate to
believe that because of his refusal when that door is opened, what is going to
happen?
A: Whenever we have a problem we always send over a lot of officers. That is not an
unusual thing. And we do not open the door up and rush in there and do anything. In
the three years that I have worked B Facility, I have never cell extracted anyone on
second watch, not one time.
Mr. Deemer: One moment. No further questions.
Mr. Cummings: Nothing.
The Court: Thank you. You are excused. You can leave or stay as you wish. Next
witness.
Mr. Cummings: Yes. Ruth Taylor.
The Court: Come up to the front and raise your right hand.

R T
called as a witness by the People, after having been sworn to tell the
truth, the whole truth and nothing but the truth, was examined and
testified as follows:
The Clerk: Be seated in the witness chair and state your name and business address for
the record and could you spell your name for us, please.
 The Witness: Sure. My name is Ruth Taylor and my business address is Pelican Bay
State Prison.
The Court: You may examine.
Direct Examination
Q. by Mr. Cummings: Thank you, Your Honor. Miss Taylor, what's your occupation?
A: I am a correctional case records specialist.

41
Q: Tell us what your job basically entails.
A: Analyzing commitments, calculating release dates, normally case work for the
inmates.
Q: Keeping track of how many days they gain or they lose and when they are due out?
A: Yes, sir.
Q: Do you have with you today the C File—and I will ask you in a minute what a C File is.
But do you have the C File of inmate Johnson?
A: Yes, I do.
Q: What is a C File?
A: It's a collection of all of his records during the period that he was incarcerated with the
Department of Corrections under that CDC number. It is maintained by the
Department of Corrections and contains all original records, except medical records,
pertaining to that inmate's incarceration, including information on sentencing,
classification actions, disciplinary hearings and grievances, and parole. Information
related to an inmate's movement in and out of the prison system is summarized on a
sheet attached to the cover of the file.
Q: I am going—do you know what a 969B package is?
A: Yes, I do. It is a collection of certified copies of documents from the C file, including
abstracts of judgments and the chronological case history.
Q: This has been marked People's Exhibit No. 2 for identification and would ask you to
identify that if you could, please.
(Exhibit 2 was marked.)
A: Yes.
Q: Does it show abstracts, court abstracts?
A: Yes, it does.
Q: What is an abstract?
A: That is the document the courts provide committing an individual to the Department of
Corrections.
Q: Are those true copies, certified to be true copies of the ones in the original C File?
A: Yes, they are.
Q: And to the best of your knowledge are they identical to the ones in the C File?
A: Yes, they are.
Mr. Cummings: Thank you, ma'am. Move People's 2 in.
Mr. Deemer: Objection, yes, sir, to pages—well, considering the cover letter page 1,
would be pages 2 and 3, the chronological listings, in view of the fact there is great
varieties of inadmissible hearsay.
The Court: Any reason why those pages should not be included?
 Mr. Cummings: It will be stipulated that in any case he is a state inmate.
Mr. Deemer: We'll stipulate he is an inmate.
The Court: Both sides are stipulating the defendant was a state inmate on the date of this
alleged offense, which would have been March 28th, 1992?41

42
Mr. Cummings: With that stipulation I will withdraw Exhibit 2.
The Court: Ladies and gentlemen, you should regard the fact that the defendant was
confined as an inmate in the state prison on March 28th, 1992 as being conclusively
true because of the stipulation without any further proof as to that fact.
Mr. Cummings: Thank you. Nothing further.
Mr. Deemer: I have no questions.
The Court: You are excused. You may leave or stay as you wish.
Mr. Cummings: No further witnesses, Your Honor.
The Court: People rest?
Mr. Cummings: I am resting.42
(The following proceedings were had outside the presence of the jury.)
The Court: Let the record reflect that the jury has left the court room. We still have left the
attorneys and defendant.
Mr. Deemer: Motion to dismiss at this time.43 The information charge is battery on
Huston and a battery on Van Berg. Battery is described as the unlawful application of
force upon the person of another. Van Berg does not know how he got injured. Huston
does not know how he got injured. There is no testimony—no testimony from anybody
that any of these injuries were inflicted by the defendant. There is no testimony about
any of his feet coming in contact. There is no testimony about what he had on in the
way of shoes. There is no testimony of his fists coming in contact. And frankly I never
felt there was enough evidence to even bring this case past the preliminary hearing
stage. Judge Schott did.
But we are at trial now and there is simply not enough evidence before the jury from
which the jury can conclude beyond a reasonable doubt that a battery has been
committed upon these officers. They could have scraped themselves going through a
door. Anything could have happened. And there is absolutely no evidence whatsoever
of the defendant striking either Officer Van Berg or Officer Huston, and I don't think you
can submit this case to the jury at the present time. You are just asking them to totally
speculate as to what took place.

43
Mr. Cummings: Sometimes I wonder whether Mr. Deemer and I actually sat through the
same trial and heard the same evidence. I find it somewhat amazing when he says
there is no evidence of any direct striking. There is no evidence and that is true of any
direct striking. No one can testify truthfully that this right blow caused injury to my left
hand or et cetera. However, what the testimony is very clear on and is clear from
multiple witnesses is that the fracas continued, resistance continued. He was kicking.
 Multiple officers testified he was kicking. Multiple officers testified he was swinging over
and over again with a clenched fist.
A couple of officers viewed it a little differently. One saw him duck down as to put his
head down. A couple officers did not see it that way. It's just the perception of different
officers perceiving the same incident slightly different, an honest recitation of what the
facts were.
You have a person who is obviously of a stocky build, of a firm stature, and he is for
some reason hell-bound that he is going to go ahead and do what he can to make his
point for whatever reasons. Drops those trays and moves forward at a rapid motion.
Multiple officers testified in an aggressive fashion. Defense attorney would have you
believe that Walker walks in and subdues him. That's not what the testimony was.
Walker's testimony was that “he was on top of me pushing me back for a while; I was
on top of him pushing him back for a while.” He even said it was “kind of like dancing”
at one point and basically the whole time the order is to “get down,” none of which are
being complied with. I mean what standard are we going to put on correctional officers
in a prison? Are we going to say, “Unless you can come in and say this person kicked
me in my left thumb and because of that I know I was injured”? These officers know
they were injured because inmate Johnson caused a nothing incident to grow into a
significant injury with two injuries, both of which required some hospital treatment.
Submit it.
The Court: The motion is denied. I agree that the case is weak, particularly with the two
counts that are charged. Had there been a charge of an assault against Officer Walker
it would be almost a slam dunk.44 There is plenty of evidence to suggest to the jury
that count. But that was not charged. As to the two who were charged I think the jury
can draw the inference because there was ample testimony of the defendant striking
and kicking in the course of this struggle. They could draw the inference that it was
kicks or blows from the defendant causing injury to Officers Huston and Van Berg. So
the motion is denied.45

44
Mr. Cummings: Your Honor, People have a motion at this time basically to amend and
conform the information to the facts as they were deduced during the trial. That would
be Count 3, Penal Code Section 4501.5, the victim being Walker.
Mr. Deemer: Your Honor, I think it's a little bit late for that motion. Number one, the district
attorney has rested. Prior to that he might have made the motion. Secondly, the real
problem is there really isn't any testimony to support that allegation in the 995. Motions
to attend—Mr. Cummings did the preliminary hearing in this matter and he is the one
that did the charging, and I think that if that's the way he feels at this point in time, that
—I mean he has simply charged—there is just no way that he should be allowed to
add Count 3 at this point in time or to amend it.
The Court: Well, there is no showing of why that could not have been done in a timely
fashion. Apparently the facts were out front in the beginning, at least at the time of the
hearing. So the motion to amend is denied. Anything further before we hear the
defense case?
Mr. Cummings: No, Your Honor.
 Mr. Deemer: No, Your Honor.
The Court: Return the jury to the courtroom, please.
(The jury was returned to the courtroom.)
The Court: The jury has returned to the courtroom. Both attorneys and defendant are
present. It is the defense case, Mr. Deemer.
Mr. Deemer: Thank you. Ladies and gentlemen of the jury, it's my opportunity at this time
to outline to you basically where I expect the defense case is going to go. And again,
you never know what witnesses are going to testify to sometimes so I may end up
being surprised. But essentially what I believe took place is this.46 Is that the
defendant was notified that a package had arrived—that he was aware of the fact
somehow or other that a package had been sent to him by his family. A substantial
period of time goes by.
The first thing that happens is that apparently the wrong Johnson is taken down to
get the package. To get the package the inmates in General Population have to go to
what they call R and R, which I understand stands for release and receiving or
receiving and release or something of that sort. I wonder if there is some sort of
analogy with R and R in the service.
So apparently around the 12th of March the wrong Johnson goes down to R and R
to get the package. The next day—and probably most of you remember this; it was the
13th of March—the electricity goes off and there was some delays. Now, the officer
that's in charge of doing the R and R routine and escorting inmates out to get the
package had to go on vacation. So he leaves a note in the sergeant's office or in the
office in this unit, which the defendant watches this note written and gets stuck up on
one of those little post-em slips to go down and get the package.

45
This officer goes on vacation and this drags on and drags on. The defendant says “I
want to see a lieutenant or a sergeant I can get my package.” That never happens.
Finally on the 28th he withholds the tray, which I agree is disobedient. He is asked to
give up the tray.
Now, essentially everything that you have heard up until the time that the defendant
drops the trays is consistent with the defendant's recollection except one or two things.
Number one, the defendant does not recall the tray slot being opened and is standing
there waiting for the tray slot to be opened in order to slide the trays through the slot.
The second thing is that he has this recollection of Officer Walker placing gloves on
just before the doors open. And the third thing is that the defendant has been
incarcerated as you have heard since around 1983 or '85 and he knows Officer Walker,
knows who Officer Walker is. Officer Walker came up here from Folsom and he knows
what Walker's reputation is. At least among the inmates Officer Walker has a
reputation for pounding on inmates.
So there he is standing with the trays in his hand. Walker is on the other side. He
can obviously identify him because it says Walker on the name tag. And the door
opens and instead of the tray slot opening, the door opens and he figures he is going
to get pounded. He drops the trays, drops his head, puts his hands up over his head,
and as the officers testified, the melee ensues.
 The defense testified that to his knowledge he never, ever came in contact with
Officer Huston or Officer Van Berg, which is really curious because so far they have—
and I doubt that it will come back to this, but neither of them testify as to any contact by
them between them and the defendant in terms of force. And the only officer he comes
in contact with is this Officer Walker until after he is escorted out of the cell, at which
place some additional incidents take place. But it wasn't any of the officers that got
battered at that time.
There are two other inmate, possibly three other inmate witnesses. One of them is
the defendant's cell mate, whose recollection of the incident is somewhat different from
the officers and who I believe in essence is going to testify that Officer Walker came in,
just piled through the door and the defendant ended up getting beaten. The other
inmate is an inmate who is in an adjacent cell who could see the crowd of what they
believed is eight or ten officers outside the door and see this incident take place. There
is—one of these two inmates, I'm not sure which, was with the defendant I believe at
some point in time prior to this incident and observed Walker engaging in some, shall
we call it, aggressive conduct towards another inmate outside a kitchen area and then
some comments made by either Walker or Walker and Van Berg afterwards. And
which goes to basically what he thinks is going to happen when the door opened.
Now, what I got to have you understand is this, is that I'm not trying to establish that
Walker is a bad guy or is an aggressive officer in this case. The key thing is this, if you
have reason to believe that you are going to be assaulted you can do something to
defend yourself. And in essence I believe what the testimony is going to show is that
the defendant had this belief that when

46
this door opens he drops—I mean he is standing there totally not aggressive,
dropped the trays, okay, ducks his head and does the most normal thing that all of us
would do under those circumstances, puts his hands over his head to avoid getting
beat.47 . . .

G B
called as a witness by the Defendant, after having been sworn to tell
the truth, the whole truth and nothing but the truth, was examined
and testified as follows:
The Clerk: Could you state your name for the record, please.
The Witness: George Butler.
Direct Examination
Q. by Mr. Deemer: Mr. Butler, you are an inmate out at Pelican Bay, right?
A: Yes.
Q: And the jury is going to know this anyhow. You are out there because you are
convicted of a felony of some sort?48
A: Yes.
Q: What kind of felonies have you been convicted of?
A: Robbery.
Q: Anything else?
A: Battery.
Q: And do you know Mr. Johnson?
A: Yes.
Q: How do you know him?
A: He was my cell mate.
Q: How long was he your cell mate?
A: Three months.
Q: And where was he your cell mate?
A: In Pelican Bay B Facility, 8 Block.
Q: And do you remember an incident taking place with him on or about, say, towards the
end of March sometime?
A: Yes.
Q: Where did that incident take place?
A: In his cell.

47
Q: Do you recall—I take it you got fed in the cell that day; is that correct?
A: Yes.
Q: Why were you fed in the cell?
A: Because we was on institutional lock-down.
Q: Institutional lock-down?
A: Yes.
Q: What's that mean?
A: They was having problems out off the main facilities and for institutional security
reasons they felt the best to feed us in our cells.
Q: And did you get fed in your cells that morning?
A: Yes.
Q: Did somebody come around to pick up the trays?
A: Yes.
Q: Do you know whether or not the trays were turned over?
A: Yes.
Q: They were or weren't?
A: No.
Q: And do you know why the trays weren't turned over?
A: Yes.
Q: Can you tell the court why—or the jury why?
A: Because we had a problem. We was having a problem with the cell in which my cell
mate felt the need to talk to the sergeant, you know, a higher, you know, correctional
officer other than a floor officer.
Q: What was that problem?
A: My cell mate had a package up in R and R. They continuously played around with him
and wouldn't give him his package and which is a known procedure is go to the higher
person in the chain of command. And he continuously asks the floor officer can he
speak to a sergeant, which the floor officer continually denied and ignored him.
Q: How long had this problem been going on about a package?
A: About 30 days.
Q: Would you tell the jury what R and R is?
A: It's receiving and release. It's where if you get mail packages it comes to there and
they got to inspect and everything. They will call you up there when your property is
ready to come get it.
Q: And do you know—do you know how Johnson got notified there was a package of
some sort?
A: Yes. In the beginning of the month they told him that he had a package up there, but
they want to send it back home because that they didn't have a proper form on the top
of the box. So they told him to send the address and everything back to R and R. But
about 20 days later he filled the 602—that's a document that you form when you have
a grievance with the correctional facility. And they wrote him back and said that they
would talk to him about it. And they told him his package has been sitting up there for
like 20, 30 days, and they say they would give it to him and he continuously asked the
correctional officers about it and they just ignored him.

48
Q: How often are you allowed to get packages?
Mr. Cummings: Objection. Relevance.
The Court: Overruled.49
The Witness: I believe every 90 days, 90 days to six months, I believe.
Q. by Mr. Deemer: Ninety days to six months?
A: Yes.
Q: What kind of packages? These packages come from your family?
A: Yes.
A: What do they send you?
A: Shoes, sweat suits and thermals, you know, little food to eat.
Q: Little what?
A: Food, little cookies and chips, Kool-Aid.
Q: And on the day this incident took place was it an officer that you asked to be taken
back out initially?
A: Yes.
Q: What was the next thing that happened?
A: He asked us to get our trays up. And my cell mate said, “I would like to speak to a
sergeant.” And the officer said, “Give us the trays.” The officer didn't say, “Well, I will
go get a sergeant.” He said, “Give me the trays.” And then my cellie said, “I want to
talk to a sergeant.” And the officer just closed the door to the cell and say, “You guys
will be sorry for this,” and walked off.
Q: Then did some other officers appear?
A: Yeah, about 20 minutes later we sitting in the cell and about like—it was about seven
to twelve officers walked inside the building with their gloves and everything on, you
know, and came to the door and said, “Give us the trays.” And my cellie, he walked up
to the door, they cracked the door open and ran up in there.
Q: How many times do you recall when the officers were there at the front of the door,
how many times do you recall somebody asking for the tray to be given?
A: They only said it one time.
Q: Do you recall whether the cell port was open or closed at that time?
A: The door to the cell?
Q: The port.
A: It was closed.
Q: Did you ever see the cell port open?
A: No.

49
Q: And when the door was open what happened?
A: They rushed in. They just rushed in.
Q: What did your cellie do?
A: He was like—they had him held—like three or four held him. They rushed me and
pushed me to the back of the wall and told me to get down.
Q: Did you see what happened after that?
A: No. Then they picked me up and they said, “Let's take him out.” They had him
handcuffed and they was grabbing him by his arms and they said—I think he had a
cut or something on the side. They said, “This must be a weapon.” And the MTA was
laughing about it. In the sally port they was banging him up against the wall, and he
pushed my head against the wall and took us to the—outside in front of the program
office.
Q: All right. Where was Johnson cuffed up to the best of your recollection?
A: In the cell.
Q: Now, do you know Officer Walker?
A: Excuse me?
Q: Do you know who Officer Walker is?
A: No. I believe he is a tall officer. I don't really—
Q: And when you saw—have you ever—excuse me. When you saw the number of
officers you saw outside the door, what did you think was going to happen?
Mr. Cummings: Objection. Relevance. Calls for speculation.
The Court: Overruled. You can answer.
The Witness: I knew they was going to rush up in there.
Q. by Mr. Deemer: That was what was in your mind?
A: Yes.
Mr. Deemer: No further questions.
Cross-examination
Q. by Mr. Cummings: Mr. Butler, how long had you lived with your cell mate, Mr.
Johnson?
A: I think about three months.
Q: Are you pretty good friends with him?
A: Yeah, he was all right.
Q: Do you know whether or not Mr. Johnson has any gang affiliation?
A: No.
Mr. Deemer: Objection. That's irrelevant. Highly prejudicial.
The Court: The no answer will stand. However, it's not relevant.
Q. by Mr. Cummings: Sir, do you have any gang affiliation?
A: Yes.
Q: What is it?
A: I'm a Crip.
Mr. Deemer: Well, again there is some case law just came down. Counsel knows that is
clearly not admittable under these circumstances.
Mr. Cummings: I will do it here or I will do it at the side bar.
The Court: Approach the bench.

50
(The following proceedings were had outside the presence of the jury.)
Mr. Cummings: I believe Lieutenant Stokes is the one who can testify to the fact that he
has knowledge, I find out today, that Mr. Johnson is also a Crip. That is also typical to
put fellow gang members of the same gang in the same cells.
The Court: How is he going to confess that he is a Crip?
Mr. Cummings: Through intelligence gathering techniques. I'm not sure exactly how.
Mr. Deemer: You haven't provided me with any discovery on this.
Mr. Cummings: I just found out today.
The Court: Intelligence gathering techniques other than hearsay?50
Mr. Cummings: Well, certainly if he asked the person and he admitted it, it would be an
admission. I would have an exception to the hearsay.51
Mr. Deemer: But the problem is that whether or not they are gang members at this stage
of the proceedings is really totally irrelevant and highly prejudicial.
Mr. Cummings: No, it is not. It is not irrelevant because what a gang expert is I believe
Lieutenant Stokes will testify that gang members testify in a fashion that is helpful to
other gang members and that's also been common knowledge of the jury.52 And
probably don't even need an expert for that.
Mr. Deemer: First of all, if you were to ask my client if he were a gang member he would
simply deny it. Secondly, if you were a gang member based on what other gang
members—based on what I know about and they had confidential information sufficient
to establish that—based on what I know about the handling of these matters, it
wouldn't be a General Population. He would be in SHU.
Mr. Cummings: Pure speculation.
Mr. Deemer: It's not speculation because that is their policy and I mean—
Mr. Cummings: This gentleman has an admitted gang affiliation and he is in GP.
The Court: If you can show that this defendant has admitted to some officer that he is a
member of the same gang as this witness, you might be able to make it, other than by
hearsay. But certainly if it's going to be the usual way that they determine they are
gang members just by confidential informants, they can make administrative decisions
based on that, but that's not admissible in court. So you have established this
defendant is a member of the gang and the defendant is—
Mr. Deemer: If he proposes to go with somebody else—other than an admission, if it is
based on some sort of confidential arrangement—

51
Mr. Cummings: That has already been ruled on. I am clear on the rule.
The Court: All right.
(The following proceedings were had in open court.)
Q. by Mr. Cummings: Mr. Butler, you already indicated that you have been or at least you
are a member of the Crips; is that correct?
A: Yes.
Q: What is the Crips?
A: An organization in Los Angeles.
Q: What kind of organization?
A: A neighborhood protecting organization.
Q: Is “a gang” a fair term to apply to that or not?
A: No, that's not a fair term.
Q: Sir, when you were in your cell—do you recall what day this happened by the way?
A: Saturday. It happened on Saturday.
Q: Do you know what month?
A: It was May or March the 28th.
Q: March the 28th is the date. And on March the 28th when this incident started to
happen where were you in your cell?
A: I was sitting at the desk.
Q: An officer earlier testified that you were sitting either—I think you testified you were
sitting either at the desk or on a bunk. Does that sound possible?
A: Yes, 'cause I was at the desk.
Q: So the officer would have been truthful about that; is that correct?53
A: Yes.
Q: The officer, one of the officers also testified that when the incident actually started that
you stood up for a short period of time; is that correct?
A: Yes.
Q: So the officer would have been truthful about that; is that correct?
A: Yes.
Q: The officer, one of the officers testified that you were given a command the same way
that you said you had been to get down and the officer testified that you complied fully.
Is that what you did, exactly what you were told?
A: Yes.
Q: Is that accurate?
A: Yes.
Q: So the officer is being truthful about that; is that correct?
A: Yes.
Q: The officer testified the way they are trained in their procedures require them to
basically secure you or handcuff you until the incident is over and then release you. Is
that what happened?
A: To me, yes.

52
Q: To you, correct?
A: Yes.
Q: So the officer was truthful in that line of questioning; is that correct?
A: Yes.
Q: You indicated that you heard your cell mate request a package; is that correct?
A: He requested to talk to the sergeant.
Q: About a package.
A: Yes.
Q: And what was the response of the officers at that point?
A: When they came to the door they had the gloves and everything on. They came up,
they said “give us the trays.” And my cellie says, “Can I talk to a sergeant” “Give us
the trays.” I bent and my cellie bent over to the doors. And there was no talking until
they rushed in there hollering “get down, get down.”
Q: Did your cell mate at some point in time drop the trays in his hands?
A: He didn't have time to touch them. When he bent over, the door opened up.
Q: Did he have the trays in his hand?
A: I don't believe so.
Q: Is that because you were in the back of the cell and couldn't see everything?
A: No, I was standing—the reason why I was standing up is because when they say
“give us the trays” I was going to attempt to give them the trays. He was in front. So
when he bent over I stood and that's when the door opened up.
Q: Did you see your cell mate raise either one of his two arms?
A: No.
Q: Did you see your cell mate make a fist?
A: No.
Q: Did you see your cell mate swing at any of the officers?
A: No.
Q: Sir, from the position that you were in inside the cell did your roommate, your friend,
Mr. Johnson, did he kind of duck his head down?
A: He bent over to grab the trays, of course.
Q: You are saying he did not have his trays in his hands; is that correct?
A: That's correct.
Q: How many trays were on the floor in front of him?
A: Two.
Q: Was there some garbage piled up on top of them?
A: No, food.
Q: Food or whatever. Was there a mound of something on top of them?
A: No.
Q: Can you put two food trays through the food port door in the cell door at the same
time?
A: Yes.
Q: You don't have to feed them out one at a time?
A: No.
Q: And if there is some garbage piled on top, some paperwork, wrappers, whatever,
some disposable garbage on top, can you feed them through that food port door?

53
A: Yes, you would have to compact it down a little bit.
Mr. Cummings: Thank you sir. Nothing further.
 Mr. Deemer: No questions.
The Court: You are excused. Thank you. Next witness.
Mr. Deemer: Call inmate Green.

M G
called as a witness by the Defendant, after having been sworn to tell
the truth, the whole truth and nothing but the truth, was examined
and testified as follows:
The Clerk: Would you state your name for the record and spell it, please.
The Witness: Michael Green.
Direct Examination
Q. by Mr. Deemer: Mr. Green you are an inmate at Pelican Bay; is that correct?
A: Yes.
Q: And you are in there because you have been convicted of a felony. The jury is going
to know this anyhow so go ahead and tell them what the felony is.
A: Murder.
Q: Any others?
A: (No audible response.)
Q: And do you know Johnson, Mr. Johnson?
A: Yes.
Q: Did you know him around the end of March 1992?
A: Yes.
Q: Do you recall an incident taking place either—well, excuse me. Where did you live in
relationship to where he lived?
A: In the next cell.
Q: Do you recall an incident taking place in connection with attempting to get a food tray
from him sometime?
A: Yes.
Q: Do you recall what date that was?
A: No.
Q: Do you recall what time of day it was?
A: The morning.
Q: Do you have any recollection of what day of the week it was?
A: No.
Q: First of all, do you recall how many officers you could see outside his cell?
A: About eight.
Q: And what did you observe those officers do?
Mr. Cummings: Objection. Vague as to time.54

54
Q. by Mr. Deemer: Well, when you first observed the officers, what did you observe the
officers do?
A: Come to Johnson's cell.
Q: In front of the cell, yes.
A: They was talking to him.
Q: Do you recall what they said?
A: No, I was in the vent.
Q: You were what?
A: I was listening in the vent.
Q: What did you hear?
A: They had asked him to give him the tray.
Q: And did he say anything?
A: Yeah, he was going to give them the tray.
Q: Then how were the officers that were outside—did you take a look to see how they
were dressed?
A: They was in—
Q: What were they wearing?
A: Police uniforms.
Q: After he said something about giving the tray, then what happened?
A: One of the police, they didn't care. They just went to get it anyway.
Q: Now, do you know who Officer Walker is?
A: Yeah, I know him.
Q: Did you see him there that day?
A: Yeah, I seen him.
Q: How long have you known him?
A: Just since he has been over there.
Q: In where, Pelican Bay?
A: Yeah, since I have been in Pelican Bay.
Q: Did you ever know him at Folsom?
A: I never been to Folsom.
Q: Do you have a fear of Officer Walker?
A: Yeah.
Q: Why is that?
A: Because I hear he is, you know, a bad cop.55
Q: When you say he is a “bad cop,” you mean what?
A: That he is no good, he sets inmates up and, you know, he don't go by the policy of
Pelican Bay.
Q: I am having a hard time understanding.
A: He doesn't go by the policy of Pelican Bay.

55
Q: All right. And do you know—have you ever seen him rough anybody up?
A: No.
Q: What about Officer Van Berg, do you know him?
A: Yeah.
Q: Do you know what his reputation is amongst the inmates?
A: Same thing.
Q: And do you recall any discussion between officers and inmate Johnson with respect to
a sergeant?
A: Yeah, he had asked—he had been trying to see the sergeant for his package prior to
the events several days and on that day and before all the doors came, but they kept
denying him.
Q: Then after the officers went into the cell, when they came back out again did you see
anything?
A: Yeah, they had him handcuffed, pulling his hair. They had him bent over, pulling his—
how they grab his hands.
Q: Did they move him past your cell or in some other direction?
A: Just go straight out.
Mr. Deemer: No further questions.
Cross-examination
Q. by Mr. Cummings: Mr. Green, you indicated that you have previously been convicted
of a murder; is that true?
A: Yeah.
Q: First or second degree?
A: First.
Q: You said that was your only felony conviction?
A: Yeah, it is.
Q: Did you go to trial or did you plead?
A: I went to trial.
Q: At the same time you went to trial were you charged with Count 2, an assault with a
deadly weapon on the person, use of a firearm.
A: That's all in with the murder.
Q: But you were convicted of that, too, weren't you?
A: Yeah, everything.
Q: Were you convicted also of burglary at first degree?
A: Yeah.
Q: All at the same time?
A: It's all during the same offense.
Q: What's your term you are serving, sir?
A: Life sentence.
Q: You indicated that you—let me go back a little bit. You indicated that you did hear the
officers asking for trays; is that correct?
A: Yes.
Q: And how many times did they ask?
A: I can't remember.

56
Q: Once, twice, three, four times?
A: I don't remember.
Q: Was it more than once?
A: I don't remember.
Q: How good of a position are you in to hear when you got your ear up to that vent?
A: All I got to do is jump up on the sink and put my ear to the vent and I can hear what
goes on in the next cell.
Q: Pretty darn well?
A: Pretty darn well.
Q: You indicated that you personally expressed some concern, some fear regarding
Officer Walker; is that true?
A: Uh-huh.
Q: What are you basing it on?
A: What am I basing it on?
Q: Yeah. You testified that you never saw him rough anybody up; is that correct?
A: Right.
Q: So this is stuff—
A: But I had an experience with police that do that sort of thing.
Q: But you are not talking about Officer Walker, are you?
A: No.
Q: You are talking about some other policemen.
A: Yeah.
Q: You basically have a fear or a concern with a lot of cops, a lot of policemen about
getting roughed up, don't you?
A: With anybody?
Q: I think the answer to that probably is how would you answer that? Do you?
A: I mean if I hear you use unprofessional cop, of course.
Q: Are you personally scared, concerned for your own safety around probably most
cops?
A: No, not most cops.
Q: Around a certain percentage of them?
A: Just the ones I know don't go by the procedure.
Q: And had you ever been roughed up by Officer Van Berg?
A: No, but I seen him in action.
Q: Do you know what Van Berg looks like?
A: No, I know what he looks like.
Q: Tall, short?
A: Short.
Mr. Cummings: Thank you, sir. Nothing further.
Redirect Examination
Q. by Mr. Deemer: But it is common knowledge amongst black inmates that Officer
Walker as—you people that Officer Walker is prone to beat on you; is that correct?

57
A: Uh-huh.
Mr. Deemer: No further questions.
Mr. Cummings: Nothing.
The Court: Anything further of this witness?
Mr. Deemer: No, sir.
The Court: You may step down. The next witness.
Mr. Deemer: Call the defendant.

J J
called as a witness by the Defendant, after having been sworn to tell
the truth, the whole truth and nothing but the truth, was examined
and testified as follows:
The Clerk: Please state your full name for the record.
The Witness: James Johnson.
Direct Examination
Q. by Mr. Deemer: Mr. Johnson, you are an inmate at Pelican Bay State Prison?
A: Yes, sir.
Q: Are you—or obviously you are there because you have been convicted of a felony.
A: Rape.
Q: How many times?
A: Once.
Mr. Cummings: Say that again.
The Defendant: Once.
Q. by Mr. Deemer: And back sometime in February or March was there a problem
concerning a package of some sort?
A: Yes, there was.
Q: And would you explain to the jury what that problem was?
A: Well, February my family and them send me a package. The package—I didn't know
that the package was there in the institution until the institution sent me a little form
and let me know that they had the package. But they say the package was improper
to issue to me because the fact that the package didn't have a form on top of the
package. So they wouldn't let me have the package. But instead the officer that was
working down there, I wrote a 602 out to the officer and he wrote me back and let me
know I could come down there and we can settle the difference over the package. He
stated this to the officer that was working on floor to bring me out. But instead of
bringing me down there they brought this other Johnson down there in my place
because they didn't see fit to use the numbers which we go by, C numbers, D
numbers and things like that in prison.
Now, by them not doing that and just going by the last name there was a mistake
made. So they sent the wrong guy down there. When I come back I talked to the floor
officer and floor officer let me know that my package was

58
down there and he would make an effort to get me down there on time. That was on
Friday. But on occasion they get me down there they couldn't get me down there
because there was so much going on. Friday he wrote out a note and he stuck it on
the window. I am right there in the office with him. He stuck it on the window and he
stated on the note for the next officer to come on to take me down on R and R.
I am asking all the officers that's in the building that know about the note that he left
in there, let me go down and get my package. Now, they tell me, “We can't let you go
down there now; we got the lights went out on us; we can't let you go down there. So
we try next Friday.” And that next Friday continued on and continued on and continued
on until so many Fridays.
 Now, I started asking the floor officer to see a sergeant. They wouldn't let me see a
sergeant, too. I asked them over and over again to let me see a sergeant and the
sergeant never come see me. So I found out that my package had been setting down
there 27 days after that. You know what I'm saying? So now nobody is making no
efforts to let me get my property. You know what I'm saying?
So what I do is at that Friday they had an incident in the building, building eight.
They had an incident where another convict cut another convict with a razor. That put
us on lock-down. We can't go nowhere. We can't do nothing. No moving or nothing.
So now that Saturday before that incident happened I asked them about a sergeant
and he told me no. So that Saturday came along. I asked the floor officer that morning
about seeing the sergeant. He said no. I took the trays and I hold the trays.
Mr. Cummings: Objection, Your Honor, at this point. No question pending.56
Q. by Mr. Deemer: So Saturday morning you held the trays, right?
A: Uh-huh.
Q: What time do you guys get fed?
A: We got fed around seven.
Q: And does somebody come around to get the trays?
A: Yeah.
Q: Who comes around to get the trays?
A: Floor officer.
Q: When you are being fed how does he get the trays?
A: He come by and you can unlock the tray slot to receive trays.

59
Q: And what did you tell him when he unlocked the tray slot?
A: I told him I would like to see a sergeant. He said, “No, you ain't seeing no sergeants.”
So I say, “I am going to hold these trays until I see a sergeant.”
Q: Then what did he do with the tray slot?
A: He locked the tray slot back and he said I was in trouble and he walked to the next cell
and picked up their trays and walked out the block. Then when he came back about
20 minutes, 30 minutes later, he came back with at least 12 officers. When they come
in the building, Walker is in front of all the officers.
Q: When they come up, where is Walker standing? Do they come up to the cell door?
A: Yeah.
Q: Who was in the lead?
A: Walker.
Q: Do you know him?
A: Yes, I do.
Q: How long have you known him?
A: I been knowing him ever since Folsom.
Q: Did you ever have contact with him there?
A: I had contact with him and I know of other inmates that had contact with him, too.
Q: And does that—did that cause some sort of apprehension to you?
A: Yes, it does.
Q: Could you explain to the jury what apprehension your prior association and
knowledge of Walker caused in you?
A: The officer as he claimed to be is not—he is not a good officer at all. He give you this
one side of him. He will give you this one side of him and then the next time you see
him is another side that came out in him and he is violent. He is a violent officer.57
Q: What did you think would happen to you when Walker showed up?
A: I thought—what I thought was going to happen did happen. When he opened up that
door and ran in on him, he assaulted me.
Q: Did the officers come up to the door of the cell?
A: Walker was the only officer. It wasn't no Smith, there wasn't no Huston. It wasn't no
Van Berg. It wasn't none of them guys. Walker was the only guy that came and
ordered—they say Smith ordered the officer open up the door. Smith did not order
officer to open up the door. It was Walker that ordered them to open up the door.
Q: Did anybody talk to you—before they opened the cell door did anybody talk to you
about giving up the trays?
A: Walker asked me—he asked me and my cellie—we both in the cell. He says, “Are you
going to give up the trays?” I gets up off my bed and go and pick up the trays. As soon
as I get ready to pick up the trays, the door come open and Walker run in on me.

60
Q: Was the cell port open at any time?
A: No.
Q: What do you do when Walker comes in on you?
A: There wasn't nothing I could do but cover myself up because I already knew what was
coming.
Q: What happened?
A: Walker come up in there socking me with the gloves that he had on.
Q: And how long did that go on?
A: That went on for about a good two seconds.
Q: Then what happened?
A: Then all the rest of the officers came in, they come in the cell, and they was all like
grabbing me over this way, grabbing me over that way. And then when they did get
me on the ground and gets me handcuffed, it wasn't I was resisting the officer. I wasn't
resisting no officer at all.
Mr. Cummings: Objection.
Q. by Mr. Deemer: At some point they got you on the ground?
A: Yes.
Q: They described you as resisting.
A: No, wasn't no resisting.
Q: What happened?
A: Once Walker ran into the cell on me and have me on the table, me off the table, put
me on the floor, and handcuffed me right away. It can't be no more than three seconds
for them to do all that.
Q: Then what happened?
A: They took me out the building. Van Berg had my hair behind like this, pulling my hair.
Took me out the section, took me right there on the side of the section right where the
entrance is to coming into the building, and Van Berg took my head and smashed it
into the wall.
Q: Did he say anything?
A: He said he been wanting to do that for a long time.
Q: Did he use any expression which you might think is impolite in front of a jury? Do you
remember that?
A: (No audible response.)
Q: It's all right if you don't. Did you ever have any contact with Officer Huston.
A: I never had no contact with Officer Huston.
Q: Other than Mr. Van Berg grabbing you by the head—
A: I never had no contact with Officer Van Berg.
Q: Did you ever kick Officer Van Berg?
A: No, I never touched him. I never touched Officer Huston neither.
Q: You indicate that you had some other—you say you have known Walker for a long
time.
A: Yeah.
Q: How long had you known him at Folsom?
A: It's New Folsom. He was there up until the time he came here, which was two years
ago. And when he was there he had the same type of attitude that he got here.

61
Q: While he has been up here have you ever observed him, either he or Van Berg—have
you ever observed him lay hands on an inmate?
A: Yes, I have.
Q: Where did that take place?
A: In the kitchen.
Q: What happened then?
A: He snatched a Hispanic guy up off the seat, took him out the kitchen, drug him by the
hair out of the kitchen in the front by the sally port and jumped on the guy.
Q: Then when they came back do you recall a statement being made?
A: Yes, Van Berg said that the guy that he did like that had assaulted the staff, and it
wasn't like that.
Q: Did that—how did that make you feel?
A: At the time I looked at it like this: If they did him like that, who would be next? You
know what I'm saying? And he showed—it shows in the action that anybody could
have been next, you know? That's not no frequent thing. It's not nothing that a person
—a person has to be taught to treat somebody like that. And it had to have been in all
this time to do this. This is not no “I'm going to do this today and tomorrow I am not
going to do it.” This is an everyday occasion when they can do this.
Q: Did this cause you to fear Officer Walker?
A: Yes, it did.
Q: Are there other inmates, for example, besides yourself and inmate Green who is here
that have expressed to you their fear of Mr. Walker?
A: There is plenty of guys that I ran across that have the same feeling.
Q: Is that fear more in connection with—is that by black inmates or is that all inmates?
A: It's about all inmates, not just black inmates.
Mr. Deemer: No further questions.
Cross-examination
Q. by Mr. Cummings: Mr. Johnson, you indicated that you had been convicted, what, one
time before of rape?
A: Yes.
Q: It sounds like you took real personal offense at the way Officer Walker treated you; is
that true?
A: No, it wasn't the way he treated me.
Q: What was it?
A: The things I knew about him.
Q: So it wasn't what he did, it's what you thought he was going to do.
A: It wasn't what I thought—it wasn't what I was thinking he was going to do. It's what I
knew he was going to do. Once I seen him in the front of the line, I knew.
Q: In other words, Officer Walker didn't have to do anything. As you just said, when you
saw him in the front of that line in your mind you were sure to yourself, I'm positive of
that, you knew what was coming.
A: Yes.

62
Q: Now, given that state of mind, sir, your state of mind, you were going to protect
yourself?
A: No, I was not going to protect myself.
Q: Why not?
A: There wasn't no need to protect myself.
Q: There wasn't any need?
A: No, there was no need to protect myself.
Q: Let me see if I got this straight. You are positive in your own mind that Walker, who
you fear is at the head of the line, you see it doors go closed and you know what's
going to happen, don't you?
A: Yes.
Q: And you are not scared?
A: I'm not going to put up no defense towards him.
Q: So you didn't act in self-defense.
A: I didn't act at all.58
Q: Do you respect the rights of other people?
A: Yes, I do.
Q: And you want them to respect your rights, too?
A: Yes, I do.
Q: You had indicated earlier that you were convicted one time of rape, Sir?
A: Yes, I was.
Q: Does that go back to a 1981 conviction out of Long Beach, Los Angeles?
A: No, it goes back to '85.
Q: Let's go back a little further than that. Your rap sheet seems to indicate that you were
convicted in '81 of forcible rape.
A: I wasn't—what you mean is a conviction? What do you mean by that?
Q: Says convicted, felony conviction.
Mr. Deemer: Excuse me, Your Honor. I am going to object to this line of questioning, and I
think counsel has agreed based on the information which he provided to the Court,
 which I think he has offered, in that there is a conviction in 1983. I don't know what the
1981 conviction is he is talking about.
Mr. Cummings: Counsel has seen the rap sheet the same as I have.
Mr. Deemer: The rap sheet is obviously in error, then, because the abstract says 1983.
Mr. Cummings: We'll get to that one, counsel.
The Court: You can question him. The jury is, of course, reminded that the questions are
not evidence. The answers that come from the witness are evidence.59

63
Q. by Mr. Cummings: Sir, are you denying you were convicted in 1981 out of Long
Beach, Los Angeles court, sentenced to five years felony on a rape forcible?
A: I could see conviction of a jury, being convicted by a jury. I thought the plea bargain—
Q: That was a plea bargain?
A: Yes, it was.
Q: And in your mind that's different than a conviction?
A: Yes.
Q: Were you paroled out of the Department of Corrections?
A: Yes.
Q: Sometime in '84?
A: August 31st, '84.
Q: That's exactly the right date, August 31st, 1984. And went home for a while?
A: Yes.
Q: Did you end up back in the criminal system?
A: Yes.
Q: And was that as a result of a 1985 conviction again out of Long Beach, Count 2, you
were convicted of a rape by force or fear?
A: Yes.
Q: Also convicted of a burglary first degree?
A: Yes.
Q: Sentenced to 23 years state prison?
A: Yes.
Q: Sir, do you have any gang affiliations?
A: No.
Q: Your testimony was that at the head of that cell door that Officer Walker was there and
you knew him.
A: Yeah.
Q: And at least you knew of him.
A: Yes.
Q: Smith wasn't there?
A: Smith was there, Smith was there, but Smith was not like Smith say he was on the
side of the door. Smith was way behind. He was way behind Walker. Walker is the
only one in front of this door. Walker is the only one. Ain't no—I can't even imagine at
that time that this happened that any other officers could have been in front of Walker.
It wasn't no other officer in front of Walker. It was only Walker in front of the cell.
Q: Now, the officers testified almost unanimously—and you heard them—that actually it
was unanimously that you were acting aggressive once the cell door opened and you
 dropped the trays.
A: No, I was not acting aggressively at all with no officers, period.
Q: Sir, have you ever acted aggressively?
A: What do you mean?
Q: Are you an aggressive person?
A: I think everybody have aggression in them.

64
Q: And I know you said for the defense attorney you weren't resisting, but tell us what
you were doing.
A: I wasn't doing—it wasn't too much that I could do, period.
Q: Officer Walker testified that he was the first one through, made contact with you—or
actually you made contact with him close to the door. True or not true?
A: That's not true.
Q: Where did contact get made?
A: Contact got made when that door came open and Walker ran up in that cell on me.
That's where contact got made, the only contact.
Q: Multiple officers testified that they saw a clenched fist, probably your right fist, come
swinging at the front officer. True or not true?
A: Not true.
Q: Officers are lying about that?
A: Officers are lying about that.
Q: Officers testified they saw you kicking. True or not true?
A: Not true.
Q: Officers lying about that?
A: Officers are lying about that.
Q: All of them?
A: All of them.
Q: Officers testified that you were difficult to handcuff. True or not true?
A: Not true.
Q: Officers are lying about that, too?
A: Yes, sir.
Q: Officers testified that you ended up going from inside the cell to the outside of the cell
so that they could finish up what they had to do, which was get you cuffed up and
secured.
A: I was handcuffed on the outside of the cell, yes. That's where they brought me out of
the cell to the outside of the cell.
Q: And you got handcuffed.
A: Yes.
Q: So the officers were telling the truth about that?
A: They had to get me handcuffed.
Q: How well do you know Officer Walker?
A: I know him—I know him quite—I think I know him well enough.
Q: How many times did you come in contact?
A: I come in contact with Officer Walker this time here and a time when he was in New
Folsom.
Q: So one time three years ago or more and one time up here?
A: Yes.
Q: Two times three years apart?
A: Yes. But I see him do other things besides how many times I know him.
Mr. Cummings: Nothing further.
The Witness: Him and Van Berg, too.

65
Redirect Examination

Q. by Mr. Deemer: Are you right-handed or left-handed?60

A: I am left-handed.
Mr. Deemer: No further questions.
Mr. Cummings: Nothing.
(There was a lunch recess taken from 12:00 . . to 1:38 . . of the same day.)
The Court: The district attorney is now present and, Mr. Deemer, you have indicated you
do not intend then to call any further witnesses?
Mr. Deemer: No, sir.
The Court: Defense rests. Prosecution, any rebuttal evidence?
Mr. Cummings: Yes, Your Honor. Lieutenant Stokes.
Mr. Deemer: Your Honor, while he is calling Lieutenant Stokes, could we have an offer of
proof at the bench?
The Court: Yes, approach the bench.
(The following proceedings were had outside the presence of the jury.)
Mr. Cummings: I intend to call Stokes and ask him whether or not he is aware of the
professional reputation of Correction Officer Walker.
Mr. Deemer: The only thing you can ask him is whether or not—what his reputation is
among the inmates. What his reputation is among the staff, I don't think is very
relevant.
The Court: I am going to overrule the objection because although the inmates and the
staff are not precisely the same, they are a part of the community within the prison and
are in communication with one another on a constant basis. So reputation is something
that is back and forth and it is the kind of thing that would be known. And it's a question
that goes solely to reputation and not to prior incidents in the officers' personnel file. I
think the whole Pitchess issue is side stepped anyway, so you can ask strictly about
reputation.
Mr. Cummings: Reputation both among the inmates and among the correctional staff?
The Court: Yes, if he knows. Of course, foundation first.
Mr. Cummings: I just want to make it clear in the record that we are at the rebuttal stage
at this point.
The Court: Right, the defense has rested.61
Mr. Cummings: Exactly.
(The following proceedings were had in open court.)

R S
 called as a witness by the People, after having been sworn to tell the truth, the whole
truth and nothing but the truth, was examined and testified as follows:

66
Rebuttal Examination
Q. by Mr. Cummings: Thank you, Your Honor. Lieutenant, we know that you are currently
employed as a lieutenant and you were employed as a lieutenant, a correctional
lieutenant, on March the 28th, 1992, when you were at Pelican Bay State Prison,
correct?
A: Yes, sir.
Q: What were your duties on the 28th of March this year?
A: I was the watch commander, second watch, six o'clock in the morning until two o'clock
in the afternoon.
Q: Lieutenant, as a watch commander are you responsible for any specific business
within the prison or as a whole on that shift?
A: I am basically in charge of the overall security of the prison. And as the watch
commander I coordinate any problems that one facility would have that would need
assistance from another facility.
Q: Are you directly responsible for B Facility when you are on duty?
A: No, sir, I am not.
Q: Do you have occasion to work with or direct the work of different correctional officers?
A: Yes, sir, I have.
Q: Sir, do you know the reputation among the inmates of certain correctional officers?
A: Yes, I do.
Q: Where does that information come from?
A: That comes—
Q: How is it you would know that?
A: Specifically, sir, are we talking about the staff, specific staff in B Facility?
Q: Yes, specific staff. Do you have occasion in your job capacity to know what the
reputation is of certain staff members among the inmates?
A: Yes, sir, I would. Mainly through the appeal process.
Q: Would you explain that?
A: The appeal process is a way of airing grievances by the inmates. It is generally
recorded on a CDC 602.
Mr. Deemer: Excuse me, Your Honor. If this is the basis of his knowledge, I don't think
that he ought to be allowed to testify to that. Moreover, that is just hearsay statements
of the inmates.
The Court: Approach the bench, counsel.
(The following proceedings were had outside the presence of the jury.)
The Court: Well, I'm not going to permit Bob go into specific instances to prove conduct
on a particular occasion. But I will allow him to go as far as he has, i.e., to show that
that's generally how he keeps his finger on the pulse of what's going on in there. But
that point we are going to have to get to the bottom-line question of what reputation is,
if there is one.
Mr. Cummings: That's fine. This is being preliminary and foundational. That's all.
67
The Court: I will note for the record that since I handle several hundred habeas corpus
issues a year and almost all of that have to go through the 602 process before they go
to court and usually the 602s are attached, I read hundreds of 602s myself and I am
aware that they give a pretty good overview of what's—what the scuttlebutt is inside
the prison. So it seems to me that this is an appropriate place for his source of
knowledge, but not specific instances, as to reputation generally.
Mr. Cummings: That's fine.
(The following proceedings were had in the presence of the jury.)
Q. by Mr. Cummings: Sir, in your capacity as a lieutenant in Pelican Bay State Prison
have you had occasion to determine what you believe is the reputation of Officer
Walker among the inmates?
A: Yes, sir, I have.
Q: What would your opinion be as to what his reputation is among the inmates?
A: Among—his reputation among inmates and of staff—and as he worked for me for 13
months—is he is an excellent officer; he is very fair and he is very understanding and
he runs a very smooth block.62
Q: And what are you basing this on?
A: My 13 months of supervision of B Facility.
Q: And when you were supervising B Facility was Officer Walker one of the officers in
your command?
A: Yes, sir, he was.
Q: And that was for a period of 13 months?
A: Approximately 11 months for Officer Walker. He left for two months and then came
back.
Mr. Cummings: Thank you, sir. Nothing further.
Cross-examination
Q. by Mr. Deemer: When was the last time you discussed Officer Walker's reputation
amongst inmates?
A: I'm sorry.
Q: Have you ever discussed Officer Walker's reputation with inmates?
A: No, sir, I have not.
Q: All right. And as a practical matter as a lieutenant you really don't have that much
contact with inmates, do you?
A: Not as much as you do as a sergeant over an officer.
Q: And basically what you are really familiar with is reputation amongst the other
correctional officers. Would that be fair to say?
A: No, I am familiar with his manner of doing his job for that time that he worked for me.
Q: Are you aware of the fact that at least one lieutenant out there has refused to have
Officer Walker on his or her watch because of problems?
A: I'm not familiar with that, no, sir.

68
Q: Do you know Lieutenant Rodriguez?
A: I know of Lieutenant Rodriguez, yes.
Q: Does she have something to do with B Facility?
A: I believe she works the evening watch from two o'clock in the afternoon till ten o'clock
at night.
Q: And you are aware of the fact that she has refused to work on the watch with Officer
Walker?
A: I am not aware of it, no, sir.
Q: No further questions.
Mr. Cummings: Nothing further.
The Court: May he be excused?
Mr. Deemer: Yes.
Mr. Cummings: Yes.
The Court: You can leave or stay as you wish. Any further evidence, prosecution?
Mr. Cummings: No, People would rest. People have rested.
The Court: Defense?
Mr. Deemer: I have one witness but she is not going to be able to be here, Your Honor, so
I have no choice but to rest at this time.
The Court: Both sides rest then?
Mr. Cummings: Yes.
The Court: What remains, ladies and gentlemen, is to put their jury instructions in their
final form. That could not be done until this point, although there has been some done
to this point already. I am going to give you a recess for that purpose.
(The following proceedings were had in the presence of the jury.)
The Court: Let the record reflect that all jurors, counsel, and defendant are present.
Ladies and gentlemen of the jury, you have heard all the evidence and now it is my
duty to instruct you on the law that applies to this case.
The law requires that I read the instructions to you, and you will have these
instructions in written form in the jury room to refer to during your deliberations.
You must base your decision on the facts and the law. You have two duties to
perform. First, you must determine the facts from the evidence received in the trial and
not from any other source. A fact is something proved directly or circumstantially by the
evidence or by stipulation. A stipulation is an agreement between attorneys regarding
the facts. Second, you must apply the law that I state to you, to the facts, as you
determine them, and in this way arrive at your verdict and any finding you are
instructed to include in your verdict.
You must accept and follow the law as I state it to you, whether or not you agree with
the law. If anything concerning the law said by the attorneys in their arguments or at
any other time during the trial conflicts with my instructions on the law, you must follow
my instructions.
You must not be influenced by pity for a defendant or by prejudice against him. You
must not be biased against the defendant because he has been arrested for these
offenses, charged with a crime, or brought to trial. None

69
of these circumstances is evidence of guilt and you must not infer or assume from
any or all of them that he is more likely to be guilty than innocent. You must not be
 influenced by mere sentiment, conjecture, sympathy, passion, prejudice, public
opinion, or public feeling. Both the People and the defendant have a right to expect
that you will conscientiously consider and weigh the evidence, apply the law, and reach
a just verdict regardless of the consequences.63
Statements made by the attorneys during the trial are not evidence, although if the
attorneys have stipulated or agreed to a fact, you must regard that fact as conclusively
proved.
If an objection was sustained to a question do not guess what the answer might
have been and do not speculate as to the reason for the objection.
Do not assume to be true any insinuation suggested by a question asked a witness.
A question is not evidence and may be considered only as it enables you to
understand the answer.
Do not consider for any purpose any offer of evidence that was rejected, or any
evidence that was stricken by the court; treat it as though you had never heard it.64
Evidence consists of testimony of witnesses, writings, material objects, or anything
presented to the senses and offered to prove the existence or non-existence of a fact.
Evidence is either direct or circumstantial. Direct evidence is evidence that directly
proves a fact, without the necessity of an inference. It is evidence which by itself, if
found to be true, establishes that fact.
Circumstantial evidence is evidence that, if found to be true, proves a fact from
which an inference of the existence of another fact may be drawn.
An inference is a deduction of fact that may logically and reasonably be drawn from
another fact or group of facts established by the evidence.
It is not necessary that facts be proved by direct evidence. They may be proved also
by circumstantial evidence or by a combination of direct evidence and circumstantial
evidence. Both direct evidence and circumstantial evidence are acceptable as a
means of proof. Neither is entitled to any greater weight than the other.
However, a finding of guilt as to any crime may not be based on circumstantial
evidence unless the proved circumstances are not only (1) consistent with the theory
that the defendant is guilty of the crime, but (2) cannot be reconciled with any other
rational conclusion. If the circumstantial evidence permits two reasonable
interpretations, one of which points to the defendant's guilt and the other to his
innocence, you must adopt that interpretation that points to the defendant's innocence,
and reject that interpretation that points to guilt.

70
Further, each fact which is essential to complete a set of circumstances necessary to
establish the defendant's guilt must be proved beyond a reasonable doubt. In other
words, before an inference essential to establish guilt may be found to have been
proved beyond a reasonable doubt, each fact or circumstance upon which such
inference necessarily rests must be proved beyond a reasonable doubt.65
Every person who testifies under oath is a witness. You are the sole judges of the
believability of a witness and the weight to be given the testimony of each witness.
In determining the believability of a witness you may consider anything that has a
tendency in reason to prove or disprove the truthfulness of the testimony of the
 witness, including but not limited to any of the following:66
The extent of the opportunity or the ability of the witness to see or hear or otherwise
become aware of any matter about which the witness has testified;
The ability of the witness to remember or to communicate any matter about which
the witness has testified; The character and quality of that testimony;
The demeanor and manner of the witness while testifying; The existence or
nonexistence of a bias, interest, or other motive;
Evidence of the existence or nonexistence of any fact testified to by the witness;
The attitude of the witness toward this action or toward the giving of testimony;
A statement previously made by the witness that is consistent or inconsistent with
the testimony of the witness or the witness's prior conviction of a felony.
Discrepancies in the witness's testimony or between his or her testimony and that of
others, if there were any, do not necessarily mean that the witness should be
discredited. Failure of recollection is a common experience; and innocent
misrecollection is not uncommon. It is a fact, also, that two persons witnessing an
incident or a transaction often will see or hear it differently. Whether a discrepancy
pertains to a fact of importance or only to a trivial detail should be considered in
weighing its significance.
A witness who is willfully false in one material part of his or her testimony is to be
distrusted in others. You may reject the whole testimony of a witness who willfully has
testified falsely as to a material point, unless, from all the evidence, you believe the
probability of truth favors his or her testimony in other particulars.

71
You are not bound to decide an issue of fact in accordance with the testimony of a
number of witnesses, which does not convince you, as against the testimony of a
lesser number or other evidence, which appeals to your mind with more convincing
force.
You may not disregard the testimony of the greater number of witnesses merely from
caprice, whim, or prejudice, or from a desire to favor one side against the other. You
must not decide an issue by the simple process of counting the number of witnesses
who have testified on the opposing side. The final test is not in the relative number of
witnesses, but in the convincing force of the evidence.
The fact that a witness has been convicted of a felony, if such be a fact, may be
considered by you only for the purpose of determining the believability of that witness.
The fact of such a conviction does not necessarily destroy or impair a witness's
believability. It is one of the circumstances that you may take into consideration in
weighing the testimony of such a witness.
A defendant in a criminal action is presumed to be innocent until the contrary is
proved, and in case of a reasonable doubt whether his guilt is satisfactorily shown, he
is entitled to a verdict of not guilty. This presumption places upon the People the
burden of proving him guilty beyond a reasonable doubt.
Reasonable doubt is defined as follows. It is not a mere possible doubt because
everything relating to human affairs and depending on moral evidence is open to some
possible or imaginary doubt. It is that state of the case, which after the entire
comparison and consideration of all the evidence, leaves the mind of the jurors in that
 condition that they cannot say that they feel an abiding conviction or a moral certainty
of the truth of the charge.67
In the crimes charged in the information there must exist a union or joint operation of
act or conduct and general criminal intent. To constitute general criminal intent it is not
necessary that there should exist an intent to violate the law. When a person
intentionally does that which the law declares to be a crime, he is acting with general
criminal intent, even though he may not know that his act or conduct is unlawful.
Any person who, while confined in a state prison, commits a battery upon a person
who is not themselves confined in a state prison, is guilty of a felony.
Every person who willfully and unlawfully uses any force or violence upon the person
of another is guilty of battery.
As used in the foregoing instruction, the words “force” and “violence” are
synonymous and mean any unlawful application of physical force against the person of
another, even though it causes no pain or bodily harm or leaves no mark and even
though only the feelings of such person are injured by the act. The slightest unlawful
touching, if done in an insolent, rude, or angry manner, is sufficient.
It is not necessary that the touching be done in an actual anger or with actual malice;
it is sufficient if it was unwarranted and unjustifiable.

72
The touching essential to a battery may be a touching of the person, of the person's
clothing, or of something attached to or closely connected with the person.
It is lawful for a person who is being assaulted to defend himself from attack if, as a
reasonable person, he has grounds for believing and does believe that bodily injury is
about to be inflicted upon him. In doing so such person may use all force and means
which he believes to be reasonably necessary and which would appear to a
reasonable person in the same or similar circumstances to be necessary to prevent the
injury which appears to be imminent.68
I have not intended by anything I have said or done, or by any questions that I have
asked, or by any ruling I may have made, to intimate or suggest what you should find
to be the facts, or that I believe or disbelieve any witness.
The People and the defendant are entitled to the individual opinion of each juror.
Each of you must consider the evidence for the purpose of reaching a verdict if you
can do so. Each of you must decide the case for yourself, but should do so only after
discussing the evidence and instructions with the other jurors.
Do not hesitate to change an opinion if you are convinced it is wrong. However, do
not decide any question in a particular way because a majority of the jurors, or any of
them, favor such a decision.
Do not decide any issue in this case by chance, such as the drawing of lots or by
any other chance determination.
The attitude and conduct of jurors at all times are very important. It is rarely helpful
for a juror at the beginning of deliberations to express an emphatic opinion on the case
or to announce a determination to stand for a certain verdict. When one does that at
the outset, a sense of pride may be aroused, and one may hesitate to change a
 position even if shown it is wrong. Remember that you are not partisans or advocates
in this matter. You are impartial judges of the facts.
In your deliberations do not discuss or consider the subject of penalty or
punishment. That subject must not in any way affect your verdict.
At this time the attorneys will give their closing summations, and like the opening
summations they are not evidence. They are a chance for the attorneys to sum up for
you what they claim the evidence has shown.69 In doing that I assume they will
discuss both the testimony that you have heard and also some of the instructions I
have read to you. Of course, if you notice any

73
difference between what they tell you the evidence is and what the instructions were,
you must decide what the evidence is and follow my instructions that I have given to
you.
Since the prosecution has the burden of proof the prosecutor makes the first closing
summation followed by defense counsel, and then in order that each side will have an
opportunity to reply to the other, the prosecutor is allowed a rebuttal argument.
Mr. Cummings: Thank you, Your Honor. Ladies and gentlemen, this is my opportunity to
sum up what I believe the evidence has been, which is just what the judge explained to
you. If anything you hear from me differs from what your own recollection was, from
what your recollection of what the witnesses swore to tell you the truth about on the
witness stand, you should go by your own recollection and you should go by your own
notes. Neither counsel is trying intentionally to mislead you, and sometimes when we
are explaining our case we are thinking a witness or two ahead and sometimes we
don't get exactly all the details right.
I told you in the beginning that I expected the case to be predominantly Pelican Bay
State Prison officers. It was. I told you that it was going to involve two batteries. In
reality it involved three batteries. I will explain that in a little bit. It involves the credibility
of numerous officers. This was a scenario which I believe the very first officer, Officer
Huston, almost wanted to sum up as a great big nothing originally because that's really
what it was, something that the inmate himself had some control over.
Inmates for whatever reason do things that you and I do not understand and we are
never going to understand because we don't think that way and we are not in that
environment. But for some reason inmate Johnson chose to draw the line that day over
some package that he claimed that he wasn't getting, may or may not be true. Maybe
it's 100 percent true for all I know. Entirely possible. However, in any case, as the
officer explained to you in court and to Mr. Johnson in his cell, that wasn't the way to
go about it.
Pelican Bay State Prison and the State of California cannot stop all things and run in
and get this man, a sergeant, at that point in time and run and get his parcel for him.
It's just not possible. They deal with a mainline system or a mainline production and it
really is. You are feeding a tremendous number of inmates, got to get trays back, you
have got to go on to the next one, you have got another job assignment. That's what
these officers had to do.
What is interesting is that it appears that the major thrust of the evidence in this case
is not, although the defendant denies doing it, is not so much that it didn't happen—he
 certainly acknowledges that it happened—but it was all their fault. Of course, it is never
their fault. It is always somebody else's fault. But what we really have here and what
the defense would like to paint the picture of is that Walker, Officer Walker, is on trial.70
See, Officer Walker

74
ought to be sitting over there where inmate Johnson is because what they are really
trying to do is prosecute Officer Walker, and I urge you and the law urges you to stay
focused on who is on trial. The person on trial in this case is inmate Johnson. There is
no other. It is inmate Johnson that caused the fracas. It is inmate Johnson that drew
the line. It is inmate Johnson who decided for whatever reason something was going to
give that day and something did give and of course it had nothing to do with him.
So the People put on witnesses like Officer Huston, who when I asked him about
“Would you describe for us what happened on March the 28th, 1992 as that incident,”
his response was something like “I mean, it wasn't really even an incident originally,”
and it wasn't an incident. It escalated into an incident and it is a serious matter where
two officers were injured.
In this situation it is important to remember that basically none of the officers that
were actually there came in and testified in court were assigned to Mr. Johnson's care.
They were rovers.
They were yard officers. They were other block officers who were called by the
sergeant and went to go and basically talk this guy out of his trays, do what was
necessary to talk him out of his trays, get the trays back and get on with their own
assignments, and that's exactly what they tried to do.
Classic situation where three officers tell you what they see and what they feel is
exactly what happened, and I'm sure you all noticed there were some differences
between Officer Huston's version, Officer Van Berg's version and Officer Walker's
version. Those are the three primary ones that ended up in the cell at least in one point
in time and there were three different versions to a slight degree.71
One person has the inmate holding two trays. Don't be confused. It is not important
whether he is holding two trays in two separate hands or two trays in one hand. That's
not important. What is important is that the officers are telling you the truth because the
three stories do not come out exactly the same. These three officers or these four
officers or these five officers did not get together and decide, “Okay, folks, this is what
happened,” because obviously you are not going to have some small discrepancies,
and one of the instructions in the jury instruction package that the judge just read to
you and that you will see back in the jury room is that people who see and hear an
event often see and hear it differently and report it differently. That does not mean they
are not being truthful. Be more suspicious of the people that take the stand and tell you
five people in a row exactly what happened almost verbatim. Common sense tells you
there is probably something wrong.
In this case they relayed that basically the officer that did most of the talking was
Smith. Smith came in and told you what he said. He explained that he made a demand
that basically started out as a request. It escalated into a demand or an order to return
the trays, get the trays back. He made comments
75
like, “Are you having a bad day today, guy?” and stuff to that effect, something to try
to spark the guy to just give up the trays. They have got their job to do. These are not
correctional officers who are dealing with Johnson on a regular basis. There is no
vendetta here. The only one who alleges any sort of vendetta is Johnson.
You heard Officer Walker say, “I don't know inmate Johnson.” I don't recall any officer
that was there that had any prior dealings with this particular inmate. Now, that doesn't
mean that this inmate was necessarily lying to you when he says, “There is some sort
of history here between Walker and myself.” He may very well believe that for reasons
you and I cannot understand. But in his mind he may be telling the truth in his own
mind. That happens unfortunately quite often.
So basically the way the story seemed to shake out remarkably consistently in his
point of view was the person, inmate Johnson, gets up in the cell. He is holding them in
front of him, he is roughly a little bit behind, foot, foot and a half, whatever, behind the
door. Smith again signals to the control booth officer to open the door.
As soon as the door is opened wide enough for a person to get through if he wanted
to, trays are dropped instantly, denied by the defendant, but the officers were all pretty
consistent. And immediately—and some officers saw him duck his head, some officers
didn't, and you would have to understand that they all had a different perspective.
That's common sense. They all had a different perspective from where they were.
The ones closer are going to see a little bit better than the ones behind. One officer
had to go off to the side and look through what is the equivalent of a window so he
could see whether or not Johnson had any weapons because he is concerned for the
officers. He actually left and went off to one side.
So you had a person who has just dropped the trays, who was not showing any sign
of aggression before. He is not being violent and everybody agrees on this, no sign of
aggression. If they were trying to make Johnson out to be a bad guy, they would make
him out to be violent, they would make him out to be verbally abusive, they would
make him out to be throwing a fit, acting out some frustration or some anger. And they
were all consistent in that there was no hint that this guy was going to go off and
unfortunately these people do go off at times. Folks do blow up in prisons and that
happened in this case.
So he drops his trays and the officers were not exactly the same as to what they
saw, but it was remarkably similar to what the threat was. They saw inmate Johnson
making a forward motion coming at the officer in front, Walker. Walker happened to be
in front. He of course was going to be the one that came in contact with him first. It's
the only logical conclusion.
Walker basically does what he is trained to do, wrestles with the guy for a while. He
even says it is even like dancing a little bit, but basically gets him back into the cell,
and the whole time he is saying, “Get down, get down, knock it off, stop the
aggression,” and that's for everybody's safety, including the inmates. Butler, the
defendant's roommate, cell mate in his cell, does

76
 exactly what he is told and he basically complies with all instructions. He gets cuffed
up for a few minutes while they secure the situation and it's all over.
Is that what happens with this gentleman? No, it is not. He continues to fight. Every
officer was consistent to the extent that the aggression continued, the fighting
continued, kicking and fists were going. And then the officer, I believe it was Van Berg
who was trying to handcuff him, said, “I couldn't get the second cuff on him.” So they
did what they had to do. They got him cuffed up. Perfectly reasonable, perfectly
responsible to do when you are operating in a maximum-level prison. You are not
operating out of the streets of Crescent City. You are not operating at Del Norte High
School. You are operating in a maximum-security prison.
Every officer had a little bit different version, but every officer also had a little bit
different role and a little bit different perspective as to where they were.
I started out by saying that this is a credibility issue and you should think of it as a
credibility issue and think about, as the judge explained to you in the instructions, who
has a motive in this case. Let's say a motive to lie. You can consider that. Who has a
motive to be less than truthful with you?72 Four correctional officers who come in here
and swore to tell you the whole truth and they got their law enforcement career on the
line. If they were caught lying they would lose their jobs. I am sure their whole
usefulness to the California correction system goes right out the window.
Or the defendant? You heard the defendant is serving 20-plus years or about. Some
of his witnesses, one of which is serving life for murder in the first degree who has
nothing to lose with a few lies. Not a thing. We can't do anything to him and he knows
that. And everybody basically admitted to one degree or another that they are friends.
One of the inmates admitted that he was a Crip. The defendant denied any Crip
affiliation but they were roommates together. There is some degree of friendship
among the whole group of them. I think that's fairly obvious.
It is fair to look at who has the motive to tell you the truth, who has got the motive to
lie in that case. There is no motive on the part of the correctional officers, but coming
here and telling you basically what happened as best they can recall. In this case one
of the elements the People do have to prove—and I do have to prove that he was a
state prisoner at the time of the incident. It's a small thing, but it has been proven. That
was stipulated to. It just means that both defense attorney and I agreed he was a state
prisoner at the time the judge accepted the stipulation, and that is a fact that has been
proven at this point in time. No further documentary evidence or anything else need be
given.
The verdict forms in this case are basically three separate pieces of paper. The first
one is going to have Count 1 on it and it's going to say was guilty and

77
it will name—it will say battery and it will name Officer Huston being the victim of that
battery. Officer Huston was the first gentleman who testified, who testified that as a
result of this fracas, had it not been for this fracas with this fight, he would not have
gotten a gash. He got a gash in his shin, went to Sutter Coast and got medical
treatment. That's an injury. That's more than a battery, okay? But certainly qualifies as
a battery. But that's Count 1. I am asking you to return a verdict of guilty on Count 1.
 A separate piece of paper has Count 2. Again it's a battery and it's a battery of, in
this case, Officer Van Berg. Officer Van Berg was the second officer that testified. As a
result of this fracas he cannot tell you exactly what blow but that's not what their
attention is focused on. Their attention is focused on quieting people down and
breaking it up. As a direct result of this fracas and this fight he ended up with a bone
chip knocked on his hand, basically a fracture of one of the bones in his hand, and
ended up going to Sutter Coast and was treated medically for it. Those are two
batteries.
Let's talk a little bit about how simple the section is, the section of the law is. Penal
Code section 4501.5, which is the battery section, it says, “Any person who while
confined in a state prison,” we have stipulated to that, he is confined in the state
prison, “commits a battery on a person who is not themselves confined in a state
prison,” that would be staff, correctional officers, civilian workers, “is guilty of a felony,”
period. It's one sentence. It's not a big complicated law. “Any person who while
confined in the state prison commits a battery upon a person who is not themselves
confined in a state prison is guilty of a felony.”
I told you earlier I would define battery for you, too, while I am at it. Battery has a
one-sentence definition. “Every person who willfully and unlawfully uses any force or
violence upon the person of another is guilty of a battery,” period. That's it.73
I told you earlier there was a third battery in the case and legally there is a third
battery in the case and I am not asking you to return a verdict of guilty on that. It is not
before you for your consideration. But a battery does not require injuries. Legally
speaking you don't have to have people actually injured.
The relevant portion of that instruction says the slightest unlawful touching, if done in
an insolent, rude or angry manner is sufficient for a battery. So no injury need result.
So you really could have another battery which was not charged as far as the victim
being Officer Walker because he was attacked basically when the person charged the
front door. That was not charged. Thank you, ladies and gentlemen.
Mr. Deemer: I don't mean to sound like I am running away. When I opened that door to
get something I remember one time many years ago when I was a deputy district
attorney down in Compton with an attorney there who had problems and one day after
going to trial he said, “Your Honor,” he says, “I

78
am going out to get the witness, going to solve my case and prove my client innocent,”
and he walked out the door. We all sat around and sat around and nothing happened.
Sat around and nothing happened and finally they sent the bailiff out to get him. He
had completely forgotten about the trial and he was sitting in his office talking to
clients.74
Mr. Cummings always makes a lot of fun about my chart and I admit I use it on a
regular basis. I am supposed to stop waving my hands so I wave the stick instead.
This is basically kind of a circumstantial evidence case and I know that there is a lot of
direct testimony about what people observed, but unfortunately one of the things you
have to do when you evaluate that testimony is to decide do people see what they
really say they saw. That is, you have to evaluate some circumstances that go around
 that testimony because there is a lot of things that cause people to perceive—that may
cause Johnson to perceive things one way and the officers to perceive things a
different way.75
What you got to do with this is figure out what's going on in this guy's mind, what's
he doing. And one of the things—basically three rules which you are going to get in the
jury instructions. First of all, the circumstances have to be consistent with the theory.
Not only consistent with the theory of defense guilt, but it can't be reconciled with any
other rational conclusion. Each fact necessary to the set of circumstances has to be
proved beyond a reasonable doubt.
And of course the other thing which I also keep on the back of this—I only billed the
court once for this by the way—is the presumption of innocence. You got to remember
that burden is on the district attorney, not on me. I don't have any burden. James
Johnson doesn't have any burden. And if there is a reasonable doubt as to whether
James is guilty or not, you got a moral obligation and a legal obligation to come back
with a not-guilty verdict. You got to remember that. That's very important.
So when you look at that—and part of this I will sort of backtrack over Mr.
Cummings's argument. You look at that and you talk about, first of all, the motive to be
truthful. All right. These officers don't have a motive to be untruthful. Well, you know,
there is something I found really interesting is that when they got Lieutenant Stokes on
the stand about how we really stress making sure these officers write down every last
important detail. What's the important detail that wasn't in any of the reports by their
own admission? There isn't anybody that mentions anything about the cell port in the
reports but the witnesses were asked about it. Not a one. Not even Lieutenant Stokes.
All right. I think Lieutenant Stokes made it clear, his testimony made it clear that
these reports start out at the lower level and get passed on up to the upper level, and I
think it's highly unlikely that he, in the kind of environment you are dealing with out
there, that you are not going to get a certain amount

79
of cover your derriere. And this isn't because they are trying to protect themselves
against the inmates.
I think what you are dealing with is a suggestion where they are kind of—they got to
make it look good and I think that's a normal course of events, make it look good to the
higher-ups, that the lower-downs are doing the job right. In other words, the farther up
the paperwork goes, you want to make sure there is no criticism that is going to float
back down to the bottom. So there is a motive and there is a motive to ignore things.76
When I look at the circumstances in this case, the first thing that struck me is that the
three officers all—and demeanor of a witness is something you can look at. The three
officers that testified about the assaultive behavior all give the appearance—I'm sorry, I
don't know how to express it—of being—give the appearance of being cowboys. There
is just something about their manner, their dress, their boots, everything. They are
cowboys. And I suspect that they run that institution pretty much the same way. That's
the first thing that bothers me.77
The second thing, a significant item is the cell port.78 The third thing is the
defendant—by the way, the comment was made that the defendant's motive is, “Well, I
 don't want to accept responsibility; it is always somebody else's fault.” And again I think
that same issue goes with the report-writing issue. I mean, I dare say that any of you
that get in an auto accident and write a report to your insurance company are going to
try to diminish your fault somewhat. There is very few of us that come around and say,
“Yeah, I made a left turn in front of the guy and smacked him and that's it.”
The officers have the same motive. They want to make sure it's somebody else's
fault and that's inevitable. That affects their appreciation—excuse me, their perception.
But you go and you look at the circumstances and Johnson obviously wanted
something done about his seeing a sergeant. He listened to a great number of people,
“Well, the sergeant can't see everybody,” although this problem seems to have been
one that had been floating around since the first part of the month. And Mr. Cummings
says Johnson chose to draw the line. I agree. He drew the line, “I want something
done; I want to see a sergeant.”
And it's obvious from the testimony that if he just kept on drawing the line at some
point in time he would have seen a sergeant. That doesn't mean Johnson made a
choice to go out and start battering the officer or officers.79 When you look at the
circumstances surrounding this whole situation,

80
Johnson is calm, he is not abusive, and all the testimony is, depending on who
perceived it correctly—and there is obviously some different perceptions—he is
standing there. When the door opens he doesn't throw the tray at the officers. He just
drops it.80
And the general testimony is that his head drops down and I gather whatever was
going on with his fists, whether it was pushing towards the officer or whatever, there
was no—I guess there is even some discrepancy amongst the officers' testimony as to
whether there was, quote, an assault or an attempt to assault the officer—or Officer
Walker.81 But, you know, I am accused of putting Officer Walker on trial and I
apologize. But, you know, you are dealing with somebody that's in a maximum-level
prison, level four, and I'm not concerned with really whether Walker is a bad guy or not
as I told you originally. You know, there is a lot of testimony around here brought in by
the prosecution about Walker as a great officer, he is wonderful. I expect CDC staff to
stick with each other on those kind of issues. You notice none of them go down the
inmate population and say, “Hey, have you guys had problems with Walker,” or,
“What's your opinion about Walker in terms of how he uses force and violence?”
I think what's significant is that this inmate is terrified of him and at least two other
inmates seem to think that—or one other inmate, rather, says, “You know, I have seen
him engage in this kind of conduct before.” You are kind of totally at the mercy of those
cops out there. It's not like being out in the street.
So he is standing here and he is waiting for the cell port door to be opened. Now,
possibly the cell port door was open.82 I suspect the cell port door was closed. But
even if it is open you notice nobody ever says, “Pass the food tray through the cell
port.” It's, “Give us the food tray, give us the food tray.”
You know, if this cell port is, say, basically at waist high or a little below—some say
it's a little below, it's twelve inches wide, six inches high and four inches deep—I can
 understand how in his perception even if the officers are right about the cell port door
being open—and I question that—I can understand from his perception how standing
there he would be aware of the cell port door opening.
What happened? The cell door opens and here is Walker. What goes through his
mind? “I am going to get the you know what beat out of me.” He drops the trays, ducks
and the melee ensues. I really think that's an honest interpretation of what happen.
And it's obvious that in any kind of a confrontation like that the officers are going to see
and believe in the fact that they are going to assume that an assault has taken place
and obviously the inmate is the one that's going to get blamed.83

81
I think what really happens is the officers may well have perceived this as a battery,
but what happens is Mr. Johnson figures, “I am going to get the you know what kicked
out of me,” he drops the trays and down he goes. Now, regardless of how you see that
initial confrontation, Mr. Cummings is right. The issue involving a battery against
Walker ain't on trial here today. The issue that's on trial is was there a battery against
Van Berg and was there a battery against Huston.
You know what? If you sit back and think about the testimony I will bet your
recollection is the same as mine. There wasn't one bit of testimony about this
defendant striking any other officer. In fact, none of the officers—neither of those two
officers testified the defendant struck him. They didn't testify that way at the preliminary
hearing. They didn't testify here that way.
I assume with all these other officers, “Oh, yeah, I saw him strike Van Berg,” or, “I
saw him strike somebody else with his foot” or something of this sort. None of—
nobody has testified about the defendant striking anybody other than Walker and that
issue isn't on trial here. Huston and Van Berg both stated—and I'm going to just
paraphrase their testimony to my notes—but I believe that there was a question to the
effect of, you know, on Officer Huston's part, “Do you know how you received the gash
specifically?” “No.” And on Van Berg's part, “Do you know how you got hurt?” “No.”
I don't know if they banged their legs on the cell door. I don't know if they banged
their legs when Van Berg was banging my client's head against the wall, if he banged
his thumb by accident at the same time. I don't know what happened. And you don't
know what happened. The problem is that you can't speculate as to what happened
because without that evidence that's presented before you in some way, shape or form
that my client kicked them or hit them or did something like that, the DA doesn't have a
case. And there is absolutely not one bit of evidence before the court as to Van Berg
and as to Huston and I think you need to go look at that and go into that jury room and
come back with a verdict of not guilty.
This case has absolutely no business wasting your time and your money. This is not
—the defendant is entitled to a not-guilty verdict. There is absolutely no contact where
the defendant is exercising force. There is lots of force being exercised on the
defendant. But there is absolutely not one shred of evidence that the defendant
exercised any force against Huston or Van Berg.84 Thank you.
Mr. Cummings: I would suspect Mr. Deemer has been watching the Olympics on TV the
last couple of nights and he has watched how some of the referees score those boxing
 matches where one makes contact, okay, that's a point.

82
That one didn't score, this one did score. Ladies and gentlemen, this whole argument
regarding that not one bit of evidence did either one of these officers actually testify
that a blow struck them causing that injury and the DA doesn't have a case is
nonsense. It's ridiculous.
There is nothing in the law that requires any officer to come in here or anybody to tell
you or anybody else that “It was his third right jab that caught my thumb that jammed it
against the floor that caused the injury.” It's ridiculous. Think about it logically.
What the law is trying to prevent and punish is the acts and the resulting injury.
Because you have officers who are honest enough to come up here and say, “We can't
tell you exactly what blow it was, I can't tell you exactly even when it happened
because professionally what we are trying to do is subdue a person, get him down, get
him quiet, get him cuffed. We are trying to do it fast for everybody's safety, officer
safety, safety of this gentleman, safety of his roommate, cell mate, everybody
involved,” and that's what they are supposed to be doing. That's what the State of
California pays them to do.
So this idea that because they cannot truthfully tell you exactly what blow caused the
injury the People don't have a case is not true. Legally it's just a fiction, a lie. It seems
like Mr. Deemer and the defense is—what they are really trying to say is that Walker
had it in for—at least this guy believed that Walker had it in for him. Remember the
testimony from the defendant himself. Had two prior contacts. Walker recalls none but
then again he probably deals with thousands of people, or has in his career. It's had
two prior contacts with him, one at Folsom and one here. Based upon that and some
other perceptions that he has from other people he is scared to death of an officer that
he doesn't have regular contact with, scared to death.
Ladies and gentlemen, that type of an argument, if that were legally sufficient for a
self-defense argument, which is what he is really saying, he is really saying that it was
perfectly appropriate for Johnson in this case to do what he did. Now, the defense is
trying to minimize, of course, what he did. The defense would have you believe, “Well,
you know, he was covering up his head so of course he had to drop the trays; and
because he didn't throw the trays at the officer, which is one thing he could have done,
then it couldn't really be an assault.”
That's ridiculous. He chose to drop the trays, maybe duck, maybe not duck. The
evidence is 50/50 on that. But in any case it was real clear about right fist coming up
clenched and moving forward, him being the aggressor. I even asked one officer is
there any way—it's almost embarrassing asking these questions. But is there any way
that you could have mistaken him for bowing down, the forward motion. He said no.
Did he act aggressively? Was he acting violently? At that point he was. That's all that
mattered.85

83
 Because Johnson initiated that and the officers responded in a professional and
appropriate fashion and because of that two of them were injured and that's all we are
asking you to return a verdict on are those two counts. Nothing more. It is real
important that people realize that the burden is on the People and I do have to prove
my case and I have to prove my case beyond a reasonable doubt and just that,
beyond a reasonable doubt.
As the law says, it is not a mere possible doubt, because everything is open to some
doubt. In other words, you can have some doubt and you can still convict Mr. Johnson
of Counts 1, Counts 2. You can have some doubt. I could not and I cannot and no
prosecutor can ever prove their case beyond any shadow of a doubt. This is not Perry
Mason. Nor can we do it beyond any possible doubt. I can't do it. I don't believe
anybody can because we are dealing with human fears and human people and you
are always going to have different perceptions. Always do.
It's just gut level feelings, folks. Beyond a reasonable doubt, four correctional officers
come in here and tell you what happened on March the 28th, 1992, to the point where
you believe beyond a reasonable doubt that what they say happened really did
happen; and if you can do that, you can find Mr. Johnson guilty of Count 1, guilty of
Count 2. Thank you very much.
The Court: You shall now retire and select one of your number to act as foreperson. He or
she will preside over your deliberations. In order to reach verdicts all twelve jurors must
agree to the decision, to the findings you have been instructed to include in your
verdict. As soon as all of you have agreed upon a verdict so that when polled each
may state truthfully that the verdict expresses his or her decision, dated and signed by
your foreperson and then return with them to this courtroom. Return any unsigned
verdict forms.
Count 1 has to do with Officer Huston. Count 2 is identical except it applies to the
allegation concerning Officer Van Berg. It is either guilty or not guilty, date and sign the
verdict form.
(The bailiff was sworn.) . . .
(At 6:37 . . court was reconvened.)
The Court: Let the record reflect the defendant and both attorneys and the jury are
present in court. Mr. Baker, has the jury reached a verdict?
Mr. Baker: Yes, sir.
The Court: Hand the verdict to the bailiff, please.
The Clerk: Superior Court of the State of California, County of Del Norte, People of the
State of California versus James Johnson. We the jury impaneled in the above-entitled
matter find the defendant, James Johnson, guilty of battery on a correctional officer in
violation of Section 4501.5 of the Penal Code, Officer Huston, Count 1.
We the jury empaneled in the above-entitled matter find the defendant, James
Johnson, guilty on Count 2, battery on correctional officer in violation of Section 4501.5
of the Penal Code, Officer Van Berg.

84

NOTES AND QUESTIONS

 1. Defendant Johnson appealed his conviction to the District Court
of Appeals in California. The appellate court stated that “[t]he only
real dispute in appellant's case was who provoked the incident.” Was
this the way the case was presented to the jury in the closing
arguments? Did the defense attorney even make an argument that
the correctional officers started the melee? Consider the evidence in
the case that would sustain such an argument, or the related
argument that the various combatants misinterpreted each other's
conduct to be aggressive. Think about the stories you could tell to
the jury that would raise a reasonable doubt about Johnson's guilt.
2. Would evidence of other incidents at Pelican Bay have affected
the outcome in Johnson? Here is an excerpt from Judge
Henderson's opinion in the Pelican Bay class action, Madrid v.
Gomez, 889 F. Supp. 1146, 1162, 1199-1200 (N.D. Cal. 1995):
. . . Castillo refused to return his food tray in protest against a correctional officer who
had called him and other inmates derogatory names. After leaving the tray near the
front of the cell, Castillo retreated to the back and covered himself with his mattress for
protection, in anticipation of a cell extraction. . . . Castillo, who is small in stature, made
no verbal threats or aggressive gestures. . . .
To accomplish [his] removal, two rounds from a 38 millimeter gas gun were fired into
the cell. A taser gun was also fired, striking Castillo in the chest and stomach. Then,
without attempting to retrieve the tray, . . . some number of officers entered the cell. . . .
Castillo testified that one of the officers then hit him on the top of the head with the butt
of the gas gun, knocking him unconscious. When he regained consciousness, he was
on the floor with his face down. An officer was stepping on his hands and hitting him on
the calves with a baton. . . . When he regained consciousness again, he was dragged
out of the cell face down; his head was bleeding, and a piece of his scalp had been
detached or peeled back. . . . [H]e was taken to the infirmary and then the hospital. . . .
On the basis of this and other incidents, Judge Henderson
concluded:
We agree that the extent to which force is misused at Pelican Bay, combined with the
flagrant and pervasive failures in defendants' systems for controlling the use of force . .
. reveal an affirmative management strategy . . . . All together, [the evidence] paints a
picture of a prison that all too often uses force, not only in good faith efforts to restore
and maintain order, but also for the very purpose of inflicting punishment and pain.
Why do you think the defense lawyer in Johnson did not put the
“management strategy” of Pelican Bay on trial? If the lawyer had
tried, would the judge have permitted it? How many incidents would
have to be tried in such a case? How would the prosecution have
responded? How long would the Johnson case have taken to try if
other incidents were explored at trial?

1. The names of all the participants have been changed to provide some anonymity to the
parties involved. In addition, we have added footnotes, made very minor editorial changes,
and eliminated essentially repetitious testimony.
2. The Johnson case was tried in California state court and was governed by the
California Evidence Code. The California Code, enacted in 1965, was extremely influential
in the drafting of the Federal Rules of Evidence seven years later and there are only a few
substantive differences between the Code and the Rules. We refer to the applicable Federal
Rules in the footnotes to the transcript.
3. The role of the judge includes informing the jury of the substantive law that will govern
the jury's verdict. In California, an information is the pleading filed in Superior Court for the
prosecution of a felony. Is there any reason why the judge read the information to the jury
rather than simply reading the Code section that the defendant allegedly violated? Is there
any reason why the judge did not try to translate the legalese into English?
4. Substantive law provides the essential elements that the prosecution will have to prove
to obtain a conviction. What are the essential elements of the crimes with which defendant
Johnson is charged? Battery is not defined in the information but an instruction on the
elements of a battery is given at page 64 infra. In a civil case, the essential elements of the
plaintiff's case are derived from the common or statutory law that governs the dispute.
5. FRE 615 permits the court to exclude witnesses from the courtroom while another
witness is testifying to safeguard against the possibility of “contaminating” a witness. The
objective is to preclude a witness from altering or modifying testimony to explain or dovetail
with the testimony of another witness.
6. When you have finished reading the instructions, consider how well they communicate
the salient aspects of the role that the jurors are about to undertake. Note in particular that
the judge provides very little illumination concerning the legal standards relevant to this trial.
Why do you suppose that is?
7. A “bench conference” or a “sidebar” may be initiated by either side or by the judge
when a point of contention or procedure arises that requires resolution for the smooth
functioning of the proceeding. Most bench conferences are on the record—that is, they are
recorded by the court reporter—but they occur outside the jury's hearing, in order to keep
the jury from overhearing what is discussed. Longer hearings on the admissibility of
evidence may also be held without the jury present. See FRE 104.
8. What might be the advantages and disadvantages of note taking by jurors? A classic
study has concluded that note taking has neither strong benefits nor strong disadvantages.
Larry Heuer & Steven Penrod, Increasing Jurors' Participation in Trials: A Field Experiment
with Juror Note Taking and Question Asking, 12 Law & Human Behavior 231 (1988).
Heuer and Penrod also examined the implications of jurors being allowed to pose
questions at trial, usually by having the judge ask their questions. Lawyers and judges tend
to be wary of encouraging such behavior, but there is some reason to believe that involving
the jury somewhat in the evidence production process has beneficial results. Allowing jury
questions may help resolve critical ambiguity, as well as keep the attention of the jurors. In
general, should lawyers be receptive or hostile to questioning from jurors?
9. Why shouldn't jurors learn more about the specific facts of the case by conducting their
own inquiry? Jurors bring their own background knowledge and general experience with
them, and they use this knowledge to interpret the testimony they hear. Wouldn't it be useful
for them to read up on subjects that are pertinent to the dispute as well?
10. Later in the transcript, you will see that documentary exhibits are entered into
evidence, too. Why not explain exhibits at this point? Are verbal testimony and exhibits the
only sources of evidence? The judge has just told the jury to pay close attention to the
demeanor of witnesses, and to use common sense. On the basis of common sense, jurors
also draw inferences from the evidence. Is there a clear distinction between “evidence” and
the “inferences” one draws from evidence? Begin to think about what it means for
something to be “evidence.”
11. Why should jurors not discuss the case with anyone else, including other jurors?
Jurors are undergoing a learning process. Does learning occur most effectively when the
learner sits passively, as this instruction directs these jurors to do? What are possible risks
of discussion that offset its value in an educational process? Why is the court imposing this
type of decisionmaking process on the jury?
12. What aspect of the jury's role did the judge focus on in the instructions? Do the
instructions prepare the jury for its decisionmaking role? Has the judge adequately informed
the jury about the role of the court or the adversaries?
13. The primary purposes of an opening statement are to state the facts that the advocate
expects to produce at trial; to present these facts within the framework of a story or theme
that is persuasive and that will be the basis for closing argument; and to personalize the
client. Argument about what inferences should be drawn from the evidence is made in the
closing arguments, not here. The opening statement is also used to introduce the jury to
weaknesses in the case. Jury surveys have shown that opening statements are very
important in jury decisionmaking, and that jurors often vote consistently with views they form
during the opening. See the discussion in Chapter Two, Section F. Reflections on Natural
Reasoning and the Adversary System.
14. Has the prosecutor fulfilled the primary purposes for opening statements discussed in
note 13? Did a story or theme emerge? Could it have been done more vividly? Does
vividness matter in an opening statement? Compare the effectiveness of the prosecutor's
opening to the defense's opening statement, which follows the close of the prosecution's
case.
15. Defense counsel is reserving his right to make his opening statement following the
presentation of the state's case. Should he have delayed, or should he have made his
statement right now? Most defense attorneys make their opening statement right after the
plaintiff or prosecution in order to challenge that version of the case and to make sure that
the jury hears both sides. Otherwise, there is a risk that the jury is already convinced by the
time the defense begins.
16. As you read the prosecutor's direct examinations, make a note of what testimony you
think tends to establish the essential elements of the prosecution's case against the
defendant. For example, at what point does Officer Huston provide testimony to show that
the defendant's alleged battery was committed against a person not confined in State
Prison?
17. There are two general types of objections. The first is to the form of the question. For
example, the question might be leading, argumentative, assume facts not in evidence, be
compound (that is ask two or more questions in the guise of one), or call for a narrative
response. These issues are discussed in Chapter Two. The other type of objection goes to
the answer that is likely to be obtained. The answer might be irrelevant, hearsay, violate a
dead man's statute, violate the parol evidence or best evidence rules, lack a sufficient
foundation, or involve privilege. In each case, the proper procedure is to interpose the
objection after the question has been asked. Witnesses should allow the adversary time to
interpose the objection before the answer. There will be times when such a procedure will
be inadequate, such as whenever asking the question itself is as damaging as getting the
answer. (“Isn't Facility B a transition facility for violent inmates coming out of SHU, before
they are placed in general population?”)
18. Consider FRE 103. Is Deemer's objection satisfactory to preserve the issue for
appeal? The stock objection “irrelevant” or “irrelevant, incompetent, and immaterial” is just
that, a stock objection that communicates virtually nothing to the trial judge except the
objector's desire to exclude the proffered evidence. Unless that evidence is clearly not
admissible for any purpose, the objector must state the specific ground of objection to the
trial judge. FRE 103(a)(1). Evidentiary rulings admitting evidence over objection will virtually
never be the basis of appellate reversal if the objector has not been clear, direct, and
correct in the objection and if there is any ground on which the trial judge can be sustained.
If evidence is excluded, the losing side must make sure that the substance of the evidence,
and the theory of its admissibility, are apparent from the record in order to preserve the
issue for appeal. FRE 103(a)(2). It is the job of the advocates to create a record that
adequately reflects the objection, any response to it, and the judge's ruling. This is called
“perfecting the record” and “preserving the issue for appeal.”
There are tactical issues to take into account when deciding whether to object to an
opponent's question. First, if a question will not elicit damaging information, there is no
reason to weigh the proceedings down with trivial objections. Attorneys should also be wary
of imparting the impression to the jury that they have something to hide. Moreover, an
objection can often underscore the damaging aspects of an objectionable question, and
wisdom may on these occasions dictate silence in the hope that the jury will miss the point.
Finally, objectionable questions sometimes will be helpful to one's own case either because
the specific answer will be helpful or because the question will “open the door” to one's own
testimony that might not otherwise be admissible.
19. Here, the bench conference was recorded by the court reporter. If the conference
were held off the record, the lawyers must remember to summarize what occurred for the
record when the trial goes back on the record. Failure to “perfect the record” may result in
an inability to appeal any asserted error in the trial judge's ruling.
20. If the trial judge is unable to tell whether the proffered evidence is admissible because
the necessary context is lacking, the advocate has the duty to make an offer of proof. The
lawyer presents to the judge what evidence is expected to be produced so that the judge
can analyze the objection in that light. See FRE 103(a)(2).
Offers of proof may be made in a number of different ways. The lawyer may simply describe
for the trial judge what the evidence is going to be. Alternatively, the court may require that
the attorney put the relevant witnesses on the stand and ask the appropriate questions of
the witnesses. Again, it is the lawyer's obligation to make sure that the record is sufficiently
complete so as to preserve any asserted error for appeal. A useful short description of the
process of perfecting the record is Jon Waltz & John Kaplan Evidence: Making the Record
(1982).
21. If an advocate knows that an evidentiary problem is likely to arise at trial, the
advocate can attempt to get a pretrial resolution of that issue. Motions to suppress illegally
obtained evidence are examples of this. A more general procedure involves filing a motion
in limine. Motions in limine (meaning at the threshold) can be used to get pretrial rulings on
virtually any evidentiary question. Here, the defense has obtained a ruling from the judge
that he will admit reputation evidence about one of the officers. Whether raising an
evidentiary objection in a motion in limine is sufficient to preserve that objection for appeal is
discussed in Chapter Two.
 22. Why is the judge going to admit reputation evidence with respect to Officer Walker,
but not character evidence with respect to the defendant? The answer to this question
requires analysis of why character evidence is relevant. The testimony regarding Walker's
reputation for violence would be relevant to show defendant's state of mind of fear of
Walker, whereas the testimony about the defendant's violent character would be relevant to
show that he acted in conformity with his character and was the aggressor. As you will see
in Chapter Five, infra, under FRE 404 character evidence is normally not admitted to show
that a person committed an act in conformity with that character. This is one example of the
general principle that relevancy is a necessary but not a sufficient condition for admissibility.
23. Notice the form of the prosecutor's questions to Officer Huston concerning his work at
B Facility and the incident involving the defendant. The prosecutor is using “who, what,
where, when, why, and how” questions. A direct examination usually takes the form of short,
nonsuggestive questions that, when asked and answered in sequence, tell the witness's
story efficiently.
24. The prosecutor here, and three questions later, is using a common form of “leading
question” that explicitly suggests the answer that the advocate is looking for. The tag “isn't
that correct” or “isn't it true that” permits only a yes or no answer. Thus, the information that
the jury hears is really supplied by the lawyer's question; the witness's response simply
confirms or denies it.
25. Here is another leading question that directs the witness's attention back to what the
prosecutor thinks is important.
26. The objection's references to lack of qualifications and foundation amount to the
same thing. Does this witness possess the knowledge to answer the question adequately?
Essentially the witness is being asked to offer an opinion concerning the proper operation of
the prison system. To do so, he should be qualified as an expert, who is a specially qualified
person empowered under the Rules of Evidence to offer testimony because of special
competence. See FRE 702. Opinions by nonexperts are admissible in somewhat limited,
but very important, circumstances. See FRE 701.
27. The objection that a question calls for a conclusion is just another way to say that it
calls for an opinion. Here the opinion would be a lay opinion, not an expert opinion. But is
“combative” a fact or an opinion? What is the difference? Even though the objection is
overruled, note how the prosecutor develops the record by having the witness explain what
“combative” means.
28. What is a lock-down? Is the lawyer adequately attending to the jury?
29. What is an extraction team? A sally port? Again, is the lawyer attending to the jury?
30. Relevance refers to whether an item of evidence tends to prove the proposition it is
offered to prove, and whether that proposition is of significance—is material—to the
litigation. Here, the objection is that Workers' Compensation payments have no significance
—are not “material”—to the litigation. Relevancy is examined in Chapter Three.
31. The direct examiner may conduct a redirect examination when cross-examination has
been completed. The scope of redirect is limited to matters that were raised in cross-
examination; this means that the direct examiner is usually not permitted to prove an
essential element of the case that was overlooked, although judges vary widely in how
strictly they will enforce this limitation. There is no Federal Rule of Evidence that covers this
specific topic. See generally FRE 611. The two parties in this case constantly seesawed
back and forth with redirect and recross-examinations, trying to have the last word. This is
quite boring for the jury, and usually develops no new information. Much of this repetitive
testimony has been edited out of this transcript.
 32. Does Officer Van Berg have personal knowledge of the bone chip in his thumb? He
does have knowledge of what the hospital told him about his injury, but if he testified “They
told me I had a bone chip,” it would be hearsay under FRE 801 and would be inadmissible
unless it fit within an exception under FRE 803 or 804.
33. Is the report admitted into evidence? Should it be? Normally an advocate can “refresh
the memory” of a witness in any fashion that the judge will allow. If one party uses a
document to refresh a witness's memory, the opposing party will be permitted to inspect it,
examine the witness on it, and in many cases admit it into evidence. See FRE 612.
34. How would the witness know this? What objections can be made to this question?
Why was none made?
35. Suppose you were an appellate judge reading this record on appeal. Would you have
any idea what the lawyer is talking about? Indeed, reading the transcript, did you notice
when the witness was demonstrating something to the jury? The examiner must always
keep well in mind that the court reporter has ears but not eyes. Whatever demonstration the
witness made should have been described by the lawyer in adequate detail.
36. How would he know the answer to that question? Why was this allowed?
37. Although all jurisdictions recognize the objection that a question is argumentative, the
boundaries of the concept are difficult to define. A question is argumentative if it is
essentially an argument to the jury, eliciting no new information. Like a leading question, it
simply states a conclusion and asks the witness to agree with it. Here, the defense
counsel's questions seem to be actually arguing with a witness, calling for an argument in
response, also objectionable as argumentative.
38. Under the Federal Rules, Rule 601 states the general rule of competency that “all
persons are competent to be witnesses.” Under this standard, are there any grounds to
exclude the testimony of Grant? What risks are identified in the ensuing discussion between
counsel and the court?
At common law, there were numerous rules of competency that would keep a person off
the stand entirely. Spouses at common law were incompetent to testify for or against each
other; interested persons, including parties, could not testify; atheists were incompetent, as
were children and the mentally ill. The Federal Rules have largely eliminated competency
as a separate limitation on the admissibility of evidence. FRE 601 provides that everyone is
competent to be a witness, except as “otherwise provided in these rules.” Except in diversity
cases, FRE 602 is the only general competency rule left, limiting testimony to those with
personal knowledge. FRE 605 and 606 provide narrow exceptions that, for obvious
reasons, make judges and jurors incompetent to testify in the case before them. As we
explore in Chapter Seven, there are also restrictions on the testimony of experts that are
analogous to FRE 602's “competency” restriction of firsthand knowledge. In diversity cases,
FRE 601 provides that state law determines competency. Apart from these matters, the
word “incompetency” today simply refers to evidence excluded by a specific exclusionary
rule. These matters are discussed more fully in Chapter Three.
39. There is a universal principle of evidence law that no evidence is admissible until the
proponent shows that the evidence is what the proponent claims it to be. Tangible evidence,
including real objects, photographs, and documents, must be shown to be “authentic.” See
FRE 901, 902. Authentication usually requires the testimony of a witness who can supply
the facts necessary to satisfy these rules. In the case of a photograph, the witness must be
familiar with the subject of the photograph; identify the subject; and state whether the
photograph is a fair and accurate depiction of the subject. The process of authentication is
referred to as “laying the foundation” for admission. You will study this process again in
Chapter Three. For a very useful work on the subject of foundations, see Edward
Imwinkelreid, Evidentiary Foundations (3d ed. 1995). Generally speaking, to have an exhibit
admitted into evidence the attorney must first have the exhibit marked for identification by
the court reporter. By marking an exhibit for identification and then by referring to the
identification number or letter when the exhibit is used, the attorney can ensure that the
record accurately reflects which exhibit is being discussed. The attorney must then
introduce the necessary foundational testimony to show that the exhibit is what the attorney
claims it to be. Then the proponent offers the exhibit into evidence (“Your Honor, we now
offer Exhibit 1 into evidence”), and makes sure that the trial court rules on its admissibility.
The requirement of authentication is a prerequisite to the admissibility of evidence, and thus
it is for the judge to decide whether the conditions of admissibility have been satisfied under
the terms of FRE 901(a). Authentication of all kinds of exhibits is discussed in Chapter Four.
40. Under FRE 701, a lay witness's opinion must be rationally based on personal
knowledge. Could Officer Smith know what is reasonable for inmates to assume? As it turns
out, he does have personal knowledge on which to base his opinion and defense counsel
probably regrets asking this question.
41. Parties can stipulate that certain facts are not subject to dispute for purposes of
deciding their case. Such an agreement relieves the party with the burden of proof from
having to submit evidence on the stipulated fact. And the opponent may be willing to
stipulate to facts that are uncontrovertible or that might require evidentiary proof that is even
more harmful or embarrassing to their own case. Because stipulations eliminate the need
for proof, their enforcement can be justified on grounds of efficiency.
There is recent authority that a court can require the prosecution in a criminal case to
accept a stipulation offered by the defendant, and thus to forego proof of the stipulated fact,
when that proof is not probative of any other fact or issue in the case. But a party may not
be required to forego proof when this would impair the presentation of the party's case or
would be relevant to other issues. The effect of stipulations on the application of FRE 403 is
discussed in Chapter Three.
42. The prosecution has now completed its case. The court will entertain various motions
from defense counsel; after that the defense will present whatever case it chooses to.
Before reading the remainder of the transcript, think about how the prosecution has proved
its case and about what you might do were you defense counsel.
43. At the close of the prosecution's case, the defense may move for judgment of
acquittal based on the insufficiency of the evidence to sustain a conviction. The test in
California, which is fairly standard, is whether there is “substantial evidence”—that is,
evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact
could find the defendant “guilty beyond a reasonable doubt” on each element of the offense.
People v. Johnson, 26 Cal. 3d 557, 606 P.2d 738 (1980). The same test is applied by an
appellate court deciding an appeal that alleges insufficiency of the evidence.
44. So why wasn't the defendant charged with assault on Walker?
45. Consider the prosecution and defense theories of what evidence is necessary to
sustain a conviction for the crime of battery. Wouldn't there likely be case law on this point
that should be helpful to the court? Why didn't either lawyer refer to any? When you read
the judge's final charge to the jury, notice whether the court gives the jury any instructions
that are helpful in answering the question “what is a battery.”
46. It is actually improper for a lawyer to express a belief as to what happened. Why
might that be so? Why, in any event, did the state not object at this point?
47. What do you think of the style and effectiveness of this opening statement? Has
defense counsel personalized his client? Has he effectively summarized the facts
concerning the defense of self-defense and presented them as a memorable story or
theme?
48. FRE 609 provides that felony convictions may be admitted to impeach the character
for truthfulness of any testifying witness. Why would inmate Butler's commission of the
crimes of robbery and battery have anything to do with his truthfulness on the witness stand
at this trial? The defense could make a motion in limine seeking a ruling that Butler's
convictions should not be admissible under Rule 609. If this is not successful, the defense
will often bring out the convictions on direct examination—as was done here—to minimize
the impact on the jury.
49. This question does probably call for irrelevant information. Why, then, does the judge
allow it? The rules of evidence provide only a minimal structure for what actually occurs at
trial. Natural everyday reasoning processes form the core of the event. There is a natural
inclination for the jury to want to know the full details of events, even when aspects of those
details may not be formally relevant or material to a litigated case. Almost always in such
cases, the rules of evidence are ignored, and the parties are allowed to provide information
of the event regardless of its technical admissibility. Indeed, an undefined rule of evidence,
known as the res gestae rule, developed as the cover for just such activity. It is often said
that the jury may be informed of the “res gestae” of the event, which means all its details,
whether otherwise admissible or not.
50. Lieutenant Stokes does not appear to have firsthand knowledge that inmate Johnson
is a gang member, as would be required by FRE 602. Therefore, he would be relating
hearsay if he stated that his “intelligence sources” had told him that Johnson was a Crip.
51. As you will see in Chapter Eight, statements made by parties, in this case by inmate
Johnson, are exempted from the general prohibition against hearsay under FRE 801. Thus
if Johnson himself told Stokes that he was a Crip, Stokes could testify about this statement
to the jury.
52. Do you think the behavior of gang members is well known to the public? Why would it
be well known to this particular jury?
53. What do you think of the technique of cross-examination reflected in this question and
the line of questioning that follows? Notice how the prosecutor's use of leading questions
allows him to recite the information—to “play the tune”—that he wants the jury to hear.
54Occasionally, advocates object to clarify the other side's question, which seems to be
the case here. This may explain why no one seems to care whether the judge rules on the
objection.
55. In questioning inmate Green, is defense counsel seeking to prove that Officer Walker
is, in truth, a “bad cop” who roughs up inmates? Or, is he seeking to prove that Walker has
a bad reputation and that, whether true or not, this reputation causes inmates to fear him?
The first purpose would be to prove that Walker was aggressive and acted consistently with
his character, inadmissible under FRE 404. The second would be reputation evidence used
to prove effect on Johnson's state of mind. Keep this distinction in mind as you read the
testimony of inmate Johnson, and of Lieutenant Stokes later in the transcript.
56. How did you respond to this lengthy narrative by the defendant? As previously
explained, a direct examination usually takes the form of short, nonsuggestive questions
that, when asked and answered in sequence, tell the witness's story efficiently. A narrative
response is the witness's account in his or her own words and chronology without the
benefit of the examining counsel's direction. Was it an effective technique for the direct
examiner to let Johnson proceed to tell his story?
Why do you think the prosecutor objected here? The advantage of a narrative form of
questioning, from the point of view of the direct examiner, is that often more information is
presented when a witness is given free rein to testify in a narrative. The disadvantage is that
it is often less orderly, and more objectionable or inadmissible information may be
transmitted. There is no evidence rule that forbids a narrative form of testimony, but the trial
judge has discretion under FRE 611 to ensure that the adversary is not disadvantaged by
being unable to anticipate objectionable material.
57. Again, consider what the defense is seeking to prove: that Officer Walker is in fact a
violent officer, or that inmate Johnson has reason to believe that he is, and therefore fears
him?
58. Does this testimony contradict the officers' testimony that they saw the defendant
raise his fist against Officer Walker? Would the raising of the fist be justified under the
theory of self-defense—a use of force reasonably necessary to prevent an injury that the
defendant reasonably believes to be imminent? Given this testimony, what story of the
incident, from the defendant's point of view, should defense counsel argue to the jury?
Remember this point when you read the closing argument for the defense.
59. Can a juror successfully separate the implications of the questions from the answers?
Can anyone?
60. Why is this question asked? More importantly, pay attention to whether any further
reference is made to the answer.
61. Rebuttal evidence is put on by the prosecution after the defense has rested. It is
restricted to evidence made necessary by defendant's case—such as response to new
evidence or to new grounds of innocence—and should not include what the prosecutor
should have proved in the case-in-chief.
62. Is it possible that this testimony about Officer Walker's reputation among inmates can
be based solely on the 602 forms? Do the 602 forms contain such positive assertions about
officers?
63. Why does the judge give this instruction? Does it describe the normal way an
individual absorbs information? If not, why is an artificial decisionmaking process being
urged upon the jury?
64. Such instructions are common in the course of a trial. Do you think jurors are
influenced by rejected or stricken evidence, a judge's instruction notwithstanding?
65. What, exactly, might this instruction mean? See the discussion of “circumstantial
evidence” in Chapter Three.
66. This instruction tracks the language of Cal. Evid. Code §780, which lists permissible
topics of impeachment. You will study the Federal Rules governing cross-examination and
impeachment in Chapter Seven.
67. Does either advocate make use of this reasonable-doubt instruction in closing
argument?
68. Does either advocate make use of this self-defense instruction in closing argument?
Which party has the burden of proof on this issue? Does the judge ever make this clear?
69. Closing argument is the final opportunity for the advocates to speak directly to the jury
about the case. Many closing arguments contain summations of the evidence, meaning a
recitation of the key witnesses and key testimony. But where the case is not long and
complicated, and where not many witnesses have testified, the jury may not need much
help keeping things straight. Summing up the evidence should be contrasted, then, with
arguing the evidence, where the advocate seeks to persuade the jury about contested facts
and about why his or her client is entitled to prevail. Such arguments should be simple
enough to be clearly understood, and sound enough to withstand the jury's scrutiny. As you
read the closing arguments of the prosecution and the defense, consider whether these two
standards have been met.
 70. Here the prosecutor seems to be challenging the defense theory of the case, that
Officer Walker was the first aggressor. This puts the defense on the defensive, as you will
see.
71. The prosecutor is able to summarize the testimony of several officers by emphasizing
the consistency in their stories. Arguing the facts involves more than reciting testimony; it
requires choosing those facts and inferences that together create the story that should win
the case.
72. How persuasive do you find the arguments that follow concerning the motives of the
officers and the inmates to lie? What could the defense argue in response? Which group do
you think had the most compelling reason to lie about the incident?
73. Advocates often refer to the instructions during closing argument, particularly those
that define critical legal terms. Here, the prosecutor reads the definition of battery, but
makes no argument that the facts proved against the defendant satisfy the definition.
74. Jury attention is at its peak during the first minutes of argument. Does defense
counsel accomplish anything with this opening gambit?
75. Does defense counsel argue from the facts how inmate Johnson did perceive things?
76. Was this an effective argument about the officers' motive to be untruthful about the
incident? Did it respond to the prosecutor's argument about motive?
77. Does defense counsel weave in the other facts that might support the defendant's
story that the officers were the first aggressors?
78. If the cell port is significant, why doesn't defense counsel say anything about it here?
79. This appears to be a response to the prosecutor's theme that inmate Johnson chose
to have this aggressive encounter with the officers. Defense counsel does present some of
the facts that tell the story from Johnson's point of view. Notice, however, that on a few key
points, he does not forcefully argue the truth of Johnson's own testimony.
80. The defendant testified that he bent over to pick up the trays.
81. Defense counsel does not mention that the defendant testified that he was left-
handed, whereas Officers Van Berg and Smith testified that it was Johnson's right fist that
was thrust through the cell door at Walker.
82. The defendant testified that the food port door was closed.
83. Could everybody be telling the truth? Perhaps the defendant did drop the trays, duck
his head from fear, and even raise his fist to protect himself, but perhaps his behavior was
interpreted as aggressive by the equally fearful officers. Wouldn't this be an appropriate
point in the argument for the defense counsel to remind the jury of the self-defense
instruction, and to argue that it applies? Or even to relate this self-defense theory to the
reasonable doubt instruction?
84. Shouldn't the judge's instructions cover the question whether evidence of direct
touching is required for battery? Do they? It is the advocate's responsibility to request
instructions on issues of law that are raised by the facts. Then the advocate can read those
instructions to the jury during closing.
85. The theory of a self-defense claim is that the defendant has the right to respond with
reasonable force when he has reasonable fear of bodily injury. Thus, inmate Johnson's
aggressive move, if it occurred, could be viewed as a reasonable response to the
aggression he feared from the assembled group of officers. Is this ever explained to the
jury?
85

CHAPTER TWO
THE PROCESS OF PROOF:
HOW TRIALS ARE STRUCTURED
This chapter provides context for studying the rules of evidence in
two ways. First, we briefly introduce you to our methodology and to
the Federal Rules of Evidence (“FRE”), and offer some study tips.
Second, we provide you an overview of the structure of the proof
process in our adversarial system of trials. This is the setting in which
the evidence rules operate.

A. INTRODUCTION TO THE STUDY OF EVIDENCE

How to Use This Book. This book uses the problem method. We
present the evidence rules and explain them in straightforward text,
somewhat like a treatise or hornbook, rather than by requiring you to
extract doctrinal points from judicial opinions. To enable you to put the
rules into practice, and explore their limits and applications, we rely
on realistic hypothetical problems. Our approach reflects our
considered judgment that the problem method is preferable to the
case method for studying evidence. Since your professor assigned
this book, undoubtedly she or he agrees. We include just a handful of
case excerpts in this book, doing so only where a case is critical to
fully presenting a significant doctrine, or where the fact pattern is
particularly useful to demonstrating a particular application of the rule.
We cover most of the Federal Rules of Evidence in this book, but
have been selective, omitting some of the less important ones. Our
general approach is to start by reproducing the text of the rule, and in
the next section, explaining its core meaning and application. In
sections after that, where the rule warrants it, we discuss more
difficult applications of the rule, problems and doubts surrounding the
rule, its underlying policies, and practice-related issues. These
problems are interspersed throughout the book, starting in Chapter
Three, after significant chunks of rule-explanation material (typically
around 5 to 12 pages). At the end of each chapter (again, starting
with
Chapter Three), we offer “assessments,” typically multiple choice or
true/false questions

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testing a core application of the rule. Answers to all the assessment

questions are found in the back of the book.
Studying Evidence. Techniques for studying the law of evidence
depend heavily on how your professor teaches the course. But we
can offer some general ideas that are likely to work in most classes.
Law students tend to rely heavily on course outlines as a study tool,
whether commercially prepared or prepared by themselves or
classmates. While commercial outlines may be helpful for casebooks,
where the doctrinal takeaway from a given case may be unclear, we
think they are less useful in connection with this book. We don't hide
the ball in presenting black letter doctrine; it's challenging enough to
apply the rule to the problems.
As for an outline you prepare yourself, our suggestion is that you be
strategic. If you write an outline that simply summarizes black letter
evidence law, you may gain something from your efforts, but it may
inefficient. You'll wind up with something that looks a lot like a slightly
annotated copy of the Federal Rules of Evidence themselves.
Instead, consider the following approach. For each one-hour
assignment, write the number of the rule you studied (e.g., FRE 602)
and a short phrase identifying its gist (e.g., “firsthand knowledge”).
Copy a bullet point version of the rule if you like—we do this in the
book, and the formatting of the many rules in the FRE is pretty much
bullet-pointed. More important is to bullet-point any doctrinal points
that are not obvious from the text of the rule—that have been added
by judicial interpretation, for example.
 So far, we've suggested nothing different from a normal outline.
Here's where our suggestion differs, and ties in to the problem
method. For each rule, you should do two additional things. First,
write up a short fact pattern that captures your understanding of the
core application of the rule. Then write up at least one or two fact
patterns that illustrate problematic or uncertain applications of the
rule. You can draw these fact patterns from the problems in the book,
from problems supplied by your professor, or (even better) from
problems you make up yourself. When you write up the fact pattern,
the key point is that you write in your own words how the rule applies,
or the arguments for and against applying the rule to the fact pattern.
This approach will help your learning and your exam preparation.
Reading the “Restyled” FRE. While the Federal Rules of
Evidence are by no means perfect in the way they're written, they are
more compact and well organized than many other federal codes and
rules regulating some aspect of litigation. To give yourself an
overview, you should try to become familiar with the FRE's table of
contents. There are 11 main sections (called “Articles”), each dealing
with a separate subject matter. The rules for the most part attempt to
explain themselves in straightforward language, giving you a good
starting point to study their applications and difficulties.
Another thing you should know is that at the end of 2011, the FRE
were “restyled.” That is to say, the pre-2011 version of the FRE was
edited to express the rules in plainer language. In addition, some
subsection numbering within each of several rules was changed
around in the hope of making them clearer and more bullet-pointed.
These changes necessarily had to go through the amendment
process: The rules Advisory Committee proposes changes to the
Supreme Court, which reviews

87

and approves them before sending them to Congress for final

approval. However, the revisions are called a “restyling” to make clear
that the intention was not to make substantive changes to the
meaning or interpretation of any rule, but rather to make them easier
to read and understand. In a few cases, the restyling attempted to
clarify a formerly ambiguous wording by conforming the rule's new
wording to a dominant judicial interpretation.
In this book, we of course reproduce the FRE in their current,
“restyled” form. Our explanations and discussions use the current
wording and subsection numbering. The reason we bring all this up is
to alert you to the fact of the change. Cases decided under the pre-
2011 (that is, pre-restyled) rules may have slightly different language
and subsection numbering, so we want to make sure you're not
thrown off by this. And you can now understand what we mean later
in the text when, on occasion, we explicitly mention the “restyling.”

B. THE ADVERSARY/ JURY TRIAL SYSTEM: AN OVERVIEW

As you begin your study of the law of evidence, it can be useful to put
yourself in the role of the trial lawyer trying to present a case
persuasively to the jury. This necessarily requires you to imagine at
the same time how the trial process appears to the jurors. It is a
bewildering mixture of the familiar and the unfamiliar. To begin with,
most litigated events involve conventional human affairs. Although
the prison setting in the Johnson case is outside the personal
experience of most people, the crucial question for decision is simply
how a fight came about, which reduces, as is typical, to the question
of whom to believe—here, the inmate or the guards. Although the
issues that typify litigation are usually within general experience, the
decisionmaking methodology differs radically from the manner in
which an ordinary citizen makes day-to-day decisions. The trial
setting is unusual, perhaps on occasion mystifying, and often
intimidating for jurors. Indeed, a theme running through the trial
process that you may have already detected is the insulation of the
jury from much of what happens during trial. Although, historically,
juries were allowed to decide issues of law as well as fact—even as
late as the end of the nineteenth century in the United States—the
modern jury decides only factual issues. Therefore, virtually all legal
discussion—including the proper substantive and procedural law to
be applied to the case, and whether evidence should be admitted or
excluded—occurs outside the hearing or presence of the jury.
Relatively brief legal discussions in the midst of trial may be
conducted in a sidebar conference, in which the lawyers and judge
talk in low voices so as not to be heard by the jurors. Longer
discussions are held either in the judge's chambers, or, if in the
courtroom, at times when jurors are not present.
This theme of jury insulation also runs through the evidence course,
because, to a large degree, the rules of evidence focus directly on the
question of what evidence the jury will be allowed to hear. The policy
implications of most evidence rules are therefore based on
someone's answer to the question: What is the effect on the accurate
resolution of disputes of allowing a jury to consider this type of
information?

88

1. The Adversary System.

The rules structuring litigation, including the rules of evidence, are
derived from, and implement, the dominant theory of dispute
resolution in this country, known as the adversary system. Adverse
parties each present a self-serving version of the truth to a
presumably disinterested factfinder, judge or jury, which hears the
evidence the parties present and decides in a disinterested fashion
what actually happened, and thus what verdict is appropriate. The
adversarial process, in turn, is derived from a conception of the
appropriate role of government in the resolution of disputes between
private individuals and between the state and an individual. The
government has the obligation to provide a fair and disinterested
forum for the impartial resolution of disputes; and for the most part
that is all the government has an obligation, or a right, to do. Even in
criminal cases, the courts stand apart from the prosecution, treating
the representatives of the sovereign as though they were
representing a private party. The parties are responsible for
investigating the case, preparing the case for trial, and in large
measure controlling the presentation of evidence at trial. In this
country, many believe that adversarial investigation and presentation
of evidence is more likely to yield a verdict consistent with the truth
than is a process more dominated by a tribunal.
The Roles of the Trial Participants. Although probably quite
familiar to you from fictional and real-life courtroom dramas, the well-
defined roles of participants in a trial are worth briefly reviewing:
Witnesses are people with knowledge of out-of-court
events who are called on to reveal that knowledge in court, under
oath, in front of the judge, jury, and litigants.
The jury (meaning each of its members) uses its senses to
perceive information in the courtroom and its reasoning capacity to
evaluate and make inferences about that information in order to reach
a conclusion about which version of disputed events is (closer to?)
the truth. Jurors are expected to come to conclusions about disputed
facts in the case without bringing to bear any outside or firsthand
knowledge of their own: Typically, they know nothing about the case
beforehand, and (as in the Johnson case, Chapter One) are
instructed by the judge not to investigate the facts on their own.
However, jurors are not expected to disregard their own generalized
background knowledge and experience, and indeed it is assumed
that they will use their knowledge and experience in reasoning and
making inferences about the evidence before them. As is typical, the
jury instructions in the Johnson case did not give the jury any
guidance about what its reasoning process should be, other than to
define “inference” and “circumstantial evidence,” and to rule out
certain “irrational” factors: emotions, the number of witnesses on a
side, chance, or the drawing of lots. Pages 68-72, supra.
The lawyers provide information to the jury through the use of
witnesses, documents, and other exhibits.1 Because the jury is
passive, the role of the advocates is to investigate, interview, select,
prepare, and present the sources of information that the

89
 advocates think will most advance their respective cases. This
competitive process is at the heart of the adversary system of proof
and it results in the presentation of competing and contradictory
versions of events. The advocates also argue inferences and
conclusions to the jury, but the jury is instructed that attorneys'
statements are not evidence.
The judge controls the trial process by setting limits, primarily
pursuant to the rules of evidence, on the advocates' proof in the
interests of rationality of results, fairness between the parties, social
and moral values, and efficiency. The judge has power to make all the
trial participants conform to their roles in courtroom behavior and
decorum. In addition, the judge may call witnesses and may question
witnesses whether called by the court or not. See FRE 611 and 614.
But the judge is not supposed to control the content or the overall
presentation of the advocates' cases. Thus, a standard jury
instruction states that neither side had to produce all witnesses who
might have knowledge of the facts, or present all objects or
documents that might be mentioned. Throughout this course you
should ask whether the judge should have the power to keep
knowledge about the disputed facts from the jury.
Jury Trials versus Bench Trials. The rules of evidence have been
created and shaped over time with the jury in mind as the factfinder.
However, many trials are held without a jury. While the parties in most
criminal cases and many civil claims for damages have a
constitutional right to trial by jury, the parties sometimes waive that
right and agree to a try the case to the judge without a jury. In
addition, many civil cases—primarily, those seeking so-called
equitable relief, such as injunctions—are tried before a judge without
a jury. In such “bench trials,” the judge acts not only as the decision
maker on points of law and admission or exclusion of evidence, but
also as the sole fact finder, weighing the evidence. A similar situation
is presented by “evidentiary hearings”: pretrial proceedings (such as
a preliminary hearing in a criminal case) in which witnesses are called
to testify. The rules of evidence typically apply in bench trials and
evidentiary hearings, but because no jury is present, the application
of the rules may be relaxed somewhat. The theory is that a judge,
due to experience and professional training, can disregard
inadmissible evidence far more easily and effectively than a jury.
Therefore, erroneous admission or exclusion of evidence is thought
to be less problematic; and the judge can couch findings in such a
way as to claim that the decision would not be affected by a particular
doubtful evidentiary ruling.

C. ADVERSARIAL PRESENTATION OF PROOF: THE IDEA OF

COMPETING NARRATIVES AND “THEORY OF THE CASE”

In the adversary system of trials, the opposing parties each present a

narrative or story of civil liability or criminal guilt, or their negations
(nonliability or not guilty). As Professor Thomas Mauet says, “A jury
trial is essentially a competition to see which party's theory of the
case the jury will select as more probably true.” Thomas A. Mauet,

90

Trial Techniques 62 (8th ed. 2010). Trials (1) render a final and
binding decision that leads to imposition of the coercive power of the
state, and (2) gather facts exclusively from the presentations of
adverse parties. Consider how this differs from the many other forms
of investigative factfinding inquiry. Many investigatory processes, like
trials, attempt to reconstruct past events. But investigations take a
different approach to facts. Investigators examine plausible
hypotheses, consider “leads” that are deemed possibly true but that
may not be probably true (at least at early stages). In investigations,
speculation is a useful tool to generate leads and possible avenues of
further inquiry. Investigations need not come to a conclusion. A
congressional committee may fail to reach a conclusion or
recommend legislation; a police detective may fail to identify a
suspect, and leave the case classified as “unsolved.”
Trials thus differ from investigations in two significant ways. First,
trials must come to a conclusion. Second, evidence is presented,
rather than gathered. This means that the parties are not inquiring
into what the facts may be, but claiming what the facts are.
From what may have been several plausible hypotheses in an investigatory stage,
parties to a trial are required to have committed themselves to a specific version of
events. It is axiomatic in our justice system that a claim is entitled to a remedy only if it is
true. While our system of trial and evidence is designed to accommodate the uncertainty
inherent in reconstructing past events, it does so by allowing parties to base their claims
on proof of what probably happened; but it does not permit parties to assert “possibly-
true” alternative claims. David S. Schwartz, A Foundation Theory of Evidence, 100 Geo.
L.J. 95, 126 (2011).
To see this point, Consider an opening statement in a medical
malpractice trial in the absence of such a principle:
The defendant may have left a surgical sponge in the plaintiff's body when the incision
was re-sewn—we're not sure. If he did not, it's possible that he injured the plaintiff by
cutting a nerve. Or maybe it wasn't a surgery at all; maybe he prescribed unnecessary
heart medication. All we know is that he was negligent in some way.

This example is extreme, but you can see the point. If a party “may
rely on ways in which the litigated event could have happened . . . ,
the task becomes one of establishing a probability conditioned on all
conceivable evidence. This is obviously a burden that neither party
could bear[.]” Ronald J. Allen, The Nature of Juridical Proof, 13
Cardozo L. Rev. 373, 378 (1991). If the claiming party doesn't know
what happened to him, he can't claim entitlement to a remedy.
This means that the parties must commit themselves to a specific
story in order to proceed to trial. Moreover, the story has to follow a
certain structure: It must contain “elements” prescribed by the
substantive law. The elements of a contract claim are (1) a contract
(consisting of offer, acceptance and consideration), (2) a breach, (3)
causation, and (4) damages. A good way to think of elements is to
think of legal claims as recurring genres or types of story. The way
that you can recognize a case as a “negligence case” is analogous to
the way that you can recognize a movie as a romantic comedy. A
movie is a Rom Com if it has the following elements: (1) boy meets
girl, (2) the couple falls in love and starts a relationship, (3) the couple
has a falling out,

91
 and (4) the couple winds up together—typically after a montage set
to music of their poignant together moments, followed by a scene in
which the boy runs through city streets or drives at great speed to
stop the girl from doing the thing that will break them up irrevocably.
The details of the story differ, but the presence of those elements
defines it as a romantic comedy. Same for negligence, breach of
contract, or what have you.
The story told by a claiming party at trial must do two things. It must
commit to a specific version of events. That doesn't necessarily mean
that every last detail must be known. But the party must meet the
second requirement: The story must contain facts that establish each
of the elements the substantive law requires for that type of legal
claim (that genre, if you will). Establishing an element in the previous
sentence means meeting the burden of proof. The case-specific facts
have to be weighty and detailed enough that a factfinder could be
persuaded that the generic element is probably true. The degree of
probability depends on the applicable burden of persuasion, as we
examine in Chapter Ten.
The story told by the claiming party that meets these two criteria is
called the “theory of the case.” A theory of the case “is your side's
version of 'what really happened.' . . . It must be logical, fit the legal
requirements of the claims or defenses, be simple to understand, and
be consistent with the jurors' common sense[.]” Mauet, supra, at 62.
Some trial practitioners and practice manuals refer to “theory of the
case” in a looser sense, referring to trial tactics and persuasive
storytelling. We use it in a more rigorous sense to refer to an implicit
requirement. It is a narrative containing all the facts necessary to
establish the probable truth of the essential elements of the claim.
Viewed this way, the theory of the case is also essential to determine
relevance: A relevance argument shows how an item of evidence fits
into the offering party's theory of the case.
Thus far, we've been defining “theory of the case” with a focus on
the claiming party (the plaintiff or prosecution). For civil defendants,
the points made about theory of the case apply equally to their
affirmative defenses (because the defendants bear the burden of
proof). Theory of the case differs slightly for defendants, to the extent
that they can claim nonliability or nonguilt based on casting doubt on
the claimant's case. For defendants in this sense, having a theory of
the case may be more of a strategic imperative than a formal
requirement. Nevertheless, if a defendant offers a countertheory of
the case that includes facts left out of the claimants' theory of the
case, the effect will be to expand the scope of what will be deemed
relevant evidence in the litigation.

D. THE STRUCTURE OF A TRIAL

1. Pretrial Motions
Trials usually begin with “motions in limine” (pronounced “in lim-in-ay,”
meaning “at the threshold”). These are motions made by the parties
to obtain rulings on anticipated evidentiary problems. Parties
anticipating the introduction of problematic

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evidence by their adversaries make motions in limine to exclude that

evidence, though motions in limine can be used to get a pretrial ruling
on any evidentiary question. Motions in limine are often made in
writing, with short supporting briefs, and argued outside the presence
of the jury.
Tactical considerations will typically drive counsels' decisions on
whether to file motions in limine. For example, a criminal defendant,
such as Johnson, may want to testify only if the jury will not learn of
his prior criminal convictions. In order to make an informed decision
about whether to testify, the defendant could file a motion in limine
asking that the prior convictions be excluded from evidence. This
would eliminate uncertainty as to whether the defendant's prior
felonies will come before the jury. If no motion in limine were made,
defense counsel would have to wait until the prosecutor were to ask,
while cross-examining the defendant, “Isn't it a fact, Mr. Johnson, that
you were convicted of rape in 1981?” and then object. Even if the
objection were sustained, the jury, having heard the question, might
nevertheless believe the prosecutor had a good-faith basis for
asserting that the defendant had such a conviction. But if defense
counsel were to have made a successful motion in limine, the
prosecutor would be instructed ahead of time by the judge not to ask
such a question at all.

2. Jury Selection
Following motions in limine, the jury selection process begins. Jury
selection varies both in the process for selection and the number of
jurors empanelled, depending on the type of case and the jurisdiction;
anywhere from 6 to 12 jurors may be required.
In federal court, 12 jurors sit in criminal trials and six in civil trials.
The jury selection process is founded on the belief that trials are
more likely to result in an accurate verdict—assigning liability or
blame only where warranted by the facts—by having cognitively
competent, disinterested jurors. Consequently, the process allows
parties to object to potential jurors who are incompetent, who have a
financial or emotional interest in the case, or who cannot put aside
any preconceptions about the case they may have in order to decide
it based on the evidence produced at trial.
The primary means of selecting a jury is by questioning the jury
“venire”—the group from whom the jury panel will be chosen—in
order to uncover any ground for dismissing them. The questioning
process, called “voir dire,”2 may be conducted by the trial judge, the
lawyers, or by means of a written questionnaire, or by a combination
of any of the three. (The most common practice in federal court is for
the judge to do the questioning, with the lawyers' participation limited
to suggesting questions to ask.) Questions may be directed to
individual jurors, or to the venire as a whole. The judge can dismiss
potential jurors “for cause” (such as some type of bias for or against

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one of the parties) or practical reasons (such as inability to serve for

the length of the trial). The lawyers can request dismissal for cause,
or may make so-called peremptory challenges. Because the lawyers
are not required to give reasons for exercising peremptory
challenges, they may be used, as a practical matter, for any reason at
all, or no reason beyond a hunch or a whim. The only constraints on
peremptory challenges are that each side is given only a limited
number, and that they may not be used merely because of the race or
sex of the potential juror. See Batson v. Kentucky, 476 U.S. 79 (1986)
(race); J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994) (sex).
Properly conducted, voir dire is a sensible way to begin a trial
designed to elicit a rational verdict. Even if people are generally
rational, competent actors, from time to time some are also unable to
put aside interests and biases that may infect their decisions (as is
true of judges as well, who are disqualified for similar reasons).
Investing some time and effort in removing such people from the trial
makes eminent good sense. Like much of the trial process, the
laudable social goal is achieved through taking advantage of the self-
interest of the parties, whose respective desires to wind up with the
most favorable jury possible will, it is hoped, cancel out and result in a
reasonably fair-minded panel of jurors.

3. Preliminary Instructions
Once the jury is empanelled and sworn, the judge will typically issue
some preliminary jury instructions. Again, practice varies from court to
court, and judge to judge: These instructions may be nothing more
than admonitions not to talk about the case prior to jury deliberations;
or may include certain generic guidelines about considering the
evidence or credibility of witnesses; or, less typically, may even
include instructions about the substantive law governing the case. In
Johnson, the court read the jury a series of generic instructions as
well as the “information,” the written criminal pleading setting forth the
charge, which stated the statutory elements of the alleged crime.

4. Opening Statements
Now, the lawyers take turns introducing their respective cases to the
jury, in the order in which they will present evidence: The plaintiff
(civil) or prosecution (criminal) proceeds first, then the defendant. An
opening statement is neither evidence nor argument, but is supposed
to be a compact narrative of what the lawyer believes in good faith
the evidence will show. The “official” purpose is to provide the jury
with a coherent overview of the case to make it easier for the jurors to
assimilate the testimony they will soon hear, testimony that may
necessarily tell the story in a fragmented, nonchronological fashion.
Argument is not allowed in an opening statement, and can result in
an objection being sustained. Generally speaking, conclusions or
inferences derived from the evidence, contentions about legal rules,
and comments about witness credibility are considered “argument.”
For example, pointing out weaknesses in your adversary's case

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would clearly constitute objectionable argument. However, the line

between a factual statement and an argument is not always clear,
much like the distinction between factual news reporting and
editorializing, and is equally hard to draw. A great deal falls into a
gray area between “evidence” and “argument.” Consider the facts of
People v. Johnson: To say in an opening statement that “the
defendant violently attacked Officer Walker” is closer to “argument”
than is “the defendant punched Officer Walker with his fists,” yet both
could be considered statements of evidence. How much leeway the
lawyers get depends heavily upon the discretion of the trial judge. A
good practical method to assess the evidence/argument distinction is
to ask whether a witness could say it on the stand—if so, then it is
probably evidence.
Notwithstanding the rule against argument, the lawyers are
advocates, and they will present the facts in the light most favorable
to their cases. A well-presented opening statement can, without
editorializing, offer a compelling argument for one side, and many trial
advocates contend that juries begin to make up their minds on
hearing the opening statements. (There is empirical research to
support this view.)
 Trial lawyers often describe the opening statement as the lawyer's
“covenant with the jury.” The representations about what “the
evidence will show” are best viewed as promises, because the jury
may resent or mistrust the lawyer whose claims in the opening
statement are not backed up by evidence admitted during trial. This
means that it is risky in the opening statement to stress evidence
whose admissibility is in doubt.

5. Presentation of Evidence and the Burden of Production

The evidence-presentation phase is obviously the core of the trial.
The manner in which the parties introduce evidence is discussed
below. (See infra, subsection D.) This section deals with the order in
which the parties present their cases and with the key, related issue
of the burden of production.
a. The Order of the Parties' Presentation of Cases
After opening statements, the plaintiff/prosecution presents its case-
in-chief. This means calling a series of witnesses to the stand.
Primarily through the direct examination of these witnesses,3 the
plaintiff/prosecution must present evidence sufficient to prove—that
is, sufficient to support a finding by the jury to establish—each
element of its cause of action (or of the crime charged). In the
Johnson case, for example, the charge of battery (one of several
charges against Johnson) required the prosecution to prove: (1)
willful and unlawful (2) use of force or violence (3) upon the person of
another.
After the plaintiff or prosecution “rests” its case, and any motion to
dismiss is heard (and denied), defendant's case begins. Like the
plaintiff, the defendant conducts direct examinations of witnesses, but
the thrust of the defense case is to cast doubt on

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the plaintiff's evidence and to present evidence sufficient to prove

each element of any affirmative defenses.
 When the defense rests its case, the plaintiff/prosecution has an
opportunity to call witnesses in a so-called rebuttal case. (The term
“case-in-chief ” is used to distinguish the plaintiff's main case from its
rebuttal case.) The presentation of rebuttal evidence proceeds in the
same way as in the case-in-chief, except that the scope of rebuttal
evidence is limited. Rebuttal evidence must respond to either (a)
matters raised as part of defendant's affirmative defenses; or (b)
attacks during the defense case on the credibility of the
plaintiff/prosecution's evidence. Normally, a plaintiff or prosecutor will
not be allowed to repeat evidence presented in its case-in-chief, or to
present evidence that should have been part of its case-in-chief. A
defendant may be entitled to a “sur-rebuttal” (a rebuttal to the
rebuttal), but this is unusual. The rebuttal case is necessarily much
shorter than the case-in-chief.
b. The Burden of Production
The “burden of production” (discussed in detail in Chapter Ten)
means producing enough evidence so that a “reasonable” factfinder
can make a finding for the plaintiff or prosecution on each element of
the civil claim or criminal charge. The “factfinder,” again, is the jury in
jury trials (or the judge in bench trials). The “finding” involved is a
finding of the facts necessary to establish those elements of the claim
or charge, and it must meet the applicable “burden of
persuasion”—“beyond
a reasonable doubt” in criminal cases, and “more likely than not” (also
known as “a preponderance of the evidence”) in civil cases.
Thus, the plaintiff meets its burden of production in civil cases with
evidence sufficient for a reasonable jury to find that the facts
establishing each element of the plaintiff's claim are more likely than
not true. In a tort case, for instance, the plaintiff has to present
evidence sufficient for jury findings on duty, breach, causation, and
damages. In a criminal case, the prosecution meets its burden of
production if it offers enough admissible evidence so that a
reasonable jury can find that each element of the crime charged has
been established “beyond a reasonable doubt.” In the Johnson case,
for example, this meant producing evidence sufficient for the jury to
find beyond a reasonable doubt that, among other things, Johnson
“touched” Huston or Van Berg in the manner described in the jury
instructions.
Note: In civil cases, defendants have the burden of production on
their affirmative defenses. In criminal cases, however, the prosecution
has the burden of production to negate any defenses, such as “self
defense” in the Johnson case.
A failure by the plaintiff or prosecutor to meet the burden of
production on each element of a claim can result in a judgment as a
matter of law for the defense on that claim. Motions for judgment as a
matter of law can be made at several different points in the litigation
process. In civil cases, motions for summary judgment (before trial),
nonsuit/directed verdict/dismissal (after plaintiff's case-in-chief),
directed verdict (after close of evidence) or JNOV (after verdict) all
argue that the moving party wins the case on facts that are not
genuinely disputed. (In federal civil cases, such motions made during
or after trial are now all called motions for judgment as a matter of
law.

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See Fed. R. Civ. P. 50.) In criminal cases, only the defendant can
move for judgment as a matter of law, and may do so after the
prosecution's case-in-chief, after close of evidence or after the
verdict.
There is a basic similarity between all these motions seeking
judgment as a matter of law on a factual record: In each, the court is
supposed to refrain from usurping the jury's role. This means that the
judge should not resolve conflicts in the evidence or questions of
witness credibility. Moreover, if the party with the burden of production
has produced enough evidence to support a finding by a reasonable
jury, the court should not issue judgment based on the judge's own
view of how the jury should decide the case. Put another way, the
judge has to make all inferences in favor of the party opposing
judgment as a matter of law.
 The verbal formulae for judgment as a matter of law may sound
different in summary judgment as compared to a post verdict motion,
and in civil as compared to criminal cases, but they are all essentially
the same: whether there is evidence sufficient for a reasonable jury to
find for the prosecutor or plaintiff (or civil defendant on an affirmative
defense). A defense counsel in a civil case might argue:
Your Honor, plaintiff's evidence is not sufficient to support a finding by a reasonable jury
that its version of the facts is more likely than not true. Some of the necessary facts are
just plain missing, and on others, the evidence is based on inferences that are just too
weak. Plaintiff's case should not get to the jury; judgment should be granted as a matter
of law.

For criminal cases, substitute “prosecution” for “plaintiff” and “beyond

a reasonable doubt” for “more likely than not.”
The burden of production, and the resultant prospect of losing a
judgment as a matter of law, has important implications for the order
in which a party will present its evidence. While evidence that arises
during the defendant's case can ultimately be relied upon by the
plaintiff or prosecution as proof of such elements, it is extremely
unwise for a plaintiff or prosecutor to do so, because the defense can
make its motion for judgment as a matter of law at the end of the
plaintiff's (or prosecutor's) case-in-chief, without putting on any of its
own witnesses. The defense in People v. Johnson, did just that,
arguing that there was insufficient testimony to show that the alleged
battery victims, Huston and Van Berg, were ever actually touched by
the defendant Johnson.

6. Post-evidence Matters
After the close of evidence, the court may take up certain legal
matters with the lawyers outside the presence of the jury. The
defendant may make a motion for “directed verdict” on the ground
that “no reasonable jury” could find for the plaintiff because the
evidence, as a matter of law, fails to establish one or more elements
of the plaintiff's claims; or that the plaintiff has not raised sufficient
evidence to dispute an affirmative defense. Similarly, the plaintiff
could move for judgment as a matter of law on the ground that the
defendant has not raised sufficient evidence to dispute its claims. The
prosecution cannot move for a directed verdict of guilt, because that

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would be deemed a violation of the criminal defendant's Sixth

Amendment right to jury trial.
At this stage the parties also argue over jury instructions. Most
courts require the litigants to submit proposed jury instructions. These
are to assist the court, which has the ultimate responsibility to decide
how the jury will be instructed; indeed, the trial court can come up
with its own instructions, and need not adopt what is proposed by the
parties. Many of the instructions are standard (and may be contained
in books or manuals of “pattern” jury instructions). The parties
typically agree quickly upon generic instructions of the sort given in
every case—an instruction on the burden of persuasion, for example.
Arguments usually arise over how to instruct the jury on substantive
law, particularly in areas where the law is developing or unsettled. If a
party disagrees with an instruction the court decides to give, it may
object and argue instructional error as a basis for appeal. For that
reason, some trial judges, hoping to reduce grounds for appeal, may
try to pressure or cajole the parties to agree on compromise
instructions on controversial points.
In order to avoid keeping the jury waiting while the final jury
instructions are physically typed up, the court may hold the jury
instruction conference before the close of evidence; however, most
judges like to wait until the evidence phase is near an end, because
some important jury instruction questions will depend upon what
evidence was actually presented. Once these legal issues are
resolved, the jury is called back to the courtroom for one last phase of
presentations—closing argument and jury instructions.

7. Closing Arguments
Unlike opening statements, in which argument and discussion of the
law are prohibited, closing argument permits both. In closing
argument, the lawyers “argue” the facts. Significantly, they may only
discuss facts based on evidence admitted at trial. “Arguing the facts”
is not merely summarizing the evidence; rather, lawyers in closing
argument should analyze the evidence, identifying and arguing for the
inferences and conclusions they believe should be drawn from it. A
critical feature of closing argument should be to explain to the jury the
chain of inferences that connect the evidentiary facts heard by the
jury with the facts of consequence in the case. If you found the
closing argument of defense counsel Deemer in the Johnson trial to
have been unsatisfactory, an important reason for this may be that he
failed to establish this inferential chain as to much of his key
evidence. Throughout this book, we use diagrams to illustrate this
chain of inferences, which you will see is necessary not only to argue
the significance of evidence to a jury, but also to determine the
application of such rules as relevance and hearsay.
An effective closing presents a coherent story of the events that
proves one's case, while trying to show how the most likely
interpretation of every point of conflict or ambiguity in the evidence
supports that story. The lawyers should stress evidence corroborating
key points of their cases as well as evidence that undermines the
credibility of witnesses whose testimony contradicts key points.

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Finally, it is also important to weave key jury instructions into the

closing argument: In this way, the lawyers can show the jury how they
believe the evidence maps onto the controlling substantive law—how
they have proved the elements of their case and how the other side
has failed to cast doubt on the proof or to prove its own case. This
aspect of the closing links the facts of consequence with the essential
elements required by the substantive law, a point that we illustrate
diagrammatically throughout this book.
Courts vary in their practice of whether closing argument goes
before or after jury instructions. The important point is that
disagreement over jury instructions has been resolved before closing
argument. That way, even if closing argument goes before the jury is
actually instructed, the lawyers can refer to the jury instructions in
their closing.

8. Jury Instructions and the Burden of Persuasion

Because jury instructions are a fertile source of “error” for the losing
litigant to raise on appeal, most trial judges instruct the jury by simply
reading word-for-word the written set of instructions. While
extemporizing or ad-libbing might keep the jury's attention better than
a droning verbatim recitation, trial judges typically opt for the prudent
(if dull) approach of sticking to the script. (An exception to this might
be the type of boilerplate instructions and admonitions given to the
jury before opening statements.) Jury instructions can be quite
lengthy and complex, and difficult if not impossible to remember on
one hearing. Thus, courts in many jurisdictions provide the jury with a
written copy of the instructions to take into the jury room for their
deliberations; strangely, however, many courts do not allow that, and
at most will offer only verbal repetition of instructions if it occurs to the
jurors to request it.
An important concept explained to the jury in every case in the form
of a jury instruction (and usually by the lawyers in closing argument
as well) is the burden of persuasion. Earlier, we explained the burden
of production as requiring a party to produce evidence sufficient to
support a finding on a particular issue. The burden of persuasion
specifies the degree of certainty that the jury must have in order to
make a finding on a particular issue. This concept is further explained
in Chapter Ten. In civil cases, the jury must find by a preponderance
of the evidence that the plaintiff's claims are true. A preponderance of
the evidence means greater than a 50 percent probability, or “more
likely than not.” In criminal cases, the burden of persuasion is guilt
“beyond a reasonable doubt.”

9. Jury Deliberations and Verdict

After closing arguments and jury instructions, the jurors go into the
jury room for their deliberation. Jurors are allowed to have all the
exhibits—the documents and objects admitted into evidence—with
them in the jury room. They can also request to have portions of
testimony read back to them (and are usually instructed that they can
do this). Such “read-backs” involve bringing the jurors back into the
courtroom, with

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the lawyers present, to hear the court-reporter reading the testimony

from the stenographic notes (typically in a monotone). Some courts
allow jurors to take notes during trial, and to bring their notes with
them into deliberations. While jurors may ask questions about the
facts or the law during deliberations (by having the bailiff bring out a
note to the judge), the answers are often very uninformative. Unless
the parties agree on a response, the judge will be loath to create
grounds for appeal with an informative but arguably erroneous
response to a question.
Again, depending on the type of case, the jury verdict may or may
not have to be unanimous. While unanimity is required in federal
criminal cases, many jurisdictions permit nonunanimous verdicts in
civil and even some criminal cases. Federal civil verdicts must be
unanimous unless the parties agree otherwise. Fed. R. Civ. P. 48.
In criminal cases, a verdict takes the form of a decision—guilty or
not guilty—on each crime charged. Civil verdicts present more
possibilities. In some trials, the jury is asked only for a general verdict
—“we find for the plaintiff,” plus an amount of money damages—
where that is the issue, or just “we find for the defendant.” In many
cases, particularly where the legal issue has a more complex
structure, the court may use a “special verdict” form or “jury
interrogatories.” Under these latter practices, the jury is asked for its
answers to a series of questions from which a judgment can be
derived. These questions might ask for separate jury findings on each
element of a claim or a defense. Given that the burden of proof is on
the plaintiff to prove each element of its case, a special verdict form
or jury interrogatories may work to the defendant's advantage,
because a “wrong” answer to any one of several questions may result
in a defense judgment. On the other hand, if a general verdict is used
in a legally complex case, the jury may not have followed the correct
path to its final verdict. Such mistakes in the jury's reasoning process
are not considered proper grounds for an appeal. Indeed, the
evidence rules in most jurisdictions prohibit any inquiry into the jury's
mental processes or deliberations. See, e.g., FRE 606(b). Once the
jury has rendered its final verdict, and announced it in court, the jury
is dismissed.
Some trials are “bifurcated” or even “trifurcated”—conducted in two
or three separate phases, each one with its own set of jury
instructions and closing arguments, and its own separate verdict.
Examples of this are civil cases involving punitive damages and
criminal cases involving the death penalty. In both these examples,
the logically prior issue is liability or guilt—is the defendant liable at
all?—whereas the issue of penalty, which may be based (at least in
part) on other bad conduct separate from the tort or crime alleged in
the case, calls for evidence irrelevant to liability or guilt but that might
sway the jury against the defendant. These kinds of cases are thus
“bifurcated” into a “liability” or “guilt” phase—whether the defendant
committed the tort or crime—and a “penalty” phase. The penalty
phase is not even reached if the jury returns a defense verdict in the
liability phase.

10. Post-trial Motions

Once the jury has rendered its verdict and been dismissed, the jury
trial proper is over. Significantly, the “verdict” is not the same as the
“judgment” in a case. A verdict is

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the jury's ultimate decision. A judgment is a judicial act that concludes

a case. After a jury trial, the trial judge eventually enters a judgment
on a jury verdict. The judgment, usually a short document of a page
or two signed by the trial judge, may do nothing more than restate the
jury's verdict. In some cases, however, the judgment may include
further issues that are not decided by a jury—such as injunctive relief,
for example. It is the judgment, rather than the verdict itself, which
has such legal effects as res judicata and that is subject to appellate
review. Also, the judgment may differ from the jury verdict if, for
example, the court grants a post-trial motion reversing the verdict.
Post-trial motions form an important aftermath of the trial. They do
not occur right away, but within periods of a few weeks (set by statute
or court rule) after the jury's verdict, but before the entry of judgment
in the case. There are two types of post-trial motions: motion for
judgment notwithstanding the verdict, and motion for new trial. The
party that loses the case (or loses at least one ultimate issue) can
bring either of these motions, and typically brings both together. In
essence, a post-trial motion is an “appeal” from a jury verdict, only it
is made to the trial judge rather than to an appellate court. And,
indeed, an appeal from a jury verdict to a court of appeal requires that
these motions have been made; technically, appellate review of a jury
trial is actually review of a trial court decision denying a motion for
new trial or for judgment notwithstanding the verdict.
A motion for judgment notwithstanding the verdict (also known by its
Latin equivalent, “judgment non obstante veredicto,” or “JNOV” for
short) seeks judgment as a matter of law, on the ground that (again,
considering the evidence in the light most favorable to the nonmoving
party), the court can say that no reasonable jury could have reached
this particular verdict. If the motion is granted, the court reverses the
jury verdict and enters a directly contrary judgment: A defense verdict
is overruled and judgment entered for the plaintiff, or vice versa.
A judgment notwithstanding the verdict allows the court, in effect, to
delay the type of decision put to it in a directed verdict motion. A court
might be inclined to direct a verdict in favor of the defendant, for
example, due to the apparent insufficiency of the plaintiff's evidence.
By deferring its ruling on this question until after the jury renders its
verdict, however, the court allows the jury the opportunity to find
against the plaintiff and thereby possibly avoids the need itself to
make an outcome-dispositive ruling that would be subject to appellate
review. In federal court, a motion for judgment notwithstanding the
verdict can only be made if the moving party had previously moved
for a directed verdict. (Fed. R. Civ. P. 50(b).)
 The parties can move for a new trial on any of several grounds:
erroneous jury instructions, excessiveness or inadequacy of a jury's
damage award, irregularities in the trial or the jury deliberations, or—
most significant for our purposes—erroneous admission or exclusion
of evidence. These new trial motions argue that significant errors
undermined the trial, which, therefore, must be done over.
The losing party can also move for a new trial on the ground that
the verdict is “against the weight of the evidence.” This is a lower
standard than that required to get a judgment as a matter of law. Put
another way, while a JNOV argues, in essence that the nonmoving
party has failed to meet its burden of production, a new trial motion

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typically argues that the nonmoving party failed to meet its burden
of persuasion. In contrast to motions for judgment as a matter of law,
the trial judge gets to weigh conflicting evidence and assess witness
credibility in considering whether to grant a new trial. Again, granting
a new trial motion results in trying the case over, rather than
determining the outcome of the case.

E. EXAMINATION OF WITNESSES AND FRE 611

The questioning (or “examination”) of witnesses, and the witnesses'

answers—their testimony—form the core of the trial, as seen above.
Most evidence in most trials takes the form of testimony. Of course,
documents, photographs, demonstrative and other tangible objects
are introduced into evidence. However, as we will see in this course,
the rules of evidence require presentation of testimony about
documentary or tangible evidence to establish its admissibility and
often to explain its significance. (Documentary and tangible evidence
requires a witness to provide foundation testimony unless the parties
agree to forgo the formalities.) Therefore, witness testimony is
generally the most crucial form of evidence.
The examination of witnesses in the evidence-presentation phases
of the trial follows a pattern of taking turns. The party calling the
witness conducts a direct examination. The opposing party cross-
examines, with cross-examination being limited in scope to matters
raised on direct examination. The party calling the witness may
respond to points made on cross by conducting a redirect
examination. Recross and further redirect examinations can be
permitted.
The rules for presenting testimony, including the order of
examinations, are not set out in the rules of evidence or any
procedural code. Rather, they arise from an unwritten tradition of trial
practice that has developed over the years. The only provision of the
Federal Rules dealing directly with witness examinations is FRE 611,
which seems to take largely for granted the established modes of
presenting direct and cross-examinations, specifying only a few
limitations and otherwise granting the trial judge broad discretion over
“the mode and order” of examining witnesses.

1. FRE 611
RULE 611. MODE AND ORDER OF EXAMINING WITNESSES AND PRESENTING
EVIDENCE

(a) Control by the Court; Purposes. The court should exercise reasonable control over
the mode and order of examining witnesses and presenting evidence so as to:
(1) make those procedures effective for determining the truth;
(2) avoid wasting time; and
(3) protect witnesses from harassment or undue embarrassment.
(b) Scope of Cross-Examination. Cross-examination should not go beyond

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the subject matter of the direct examination and matters affecting the witness's
credibility. The court may allow inquiry into additional matters as if on direct examination.
(c) Leading Questions. Leading questions should not be used on direct examination
except as necessary to develop the witness's testimony. Ordinarily, the court should
allow leading questions:
(1) on cross-examination; and
(2) when a party calls a hostile witness, an adverse party, or a witness identified
with an adverse party.

2. Explanation of FRE 611(a) and (b)

 Breadth of the Court's Power. FRE 611(a) recognizes in broad
terms the sweeping authority of the judge to control the examination
of witnesses during the trial. Indeed, even the two express provisions
purporting to limit the scope of cross-examination (subsection (b))
and the use of leading questions (subsection (c)) may be overridden
in the discretion of the trial judge to serve the purposes outlined in
Rule 611(a). This principle is reflected by the words “should” in Rule
611(b) and (c) and the Advisory Committee Note to FRE 611(a),
which states:
Spelling out detailed rules to govern the mode and order of interrogating witnesses and
presenting evidence is neither desirable nor feasible. The ultimate responsibility for the
effective working of the adversary system rests with the judge. The rules set forth the
objectives which he should seek to attain.
Thus, the following discussion of FRE 611 and witness examination is
best understood not as a summary of binding rules, but rather as a
description of the common trial practice that judges tend to follow out
of long-standing tradition.
Direct Examination. Trials are usually won or lost on the strength
of a party's case-in-chief rather than the weaknesses in the
opponent's case. Direct examination—the questioning of witnesses
you call in your case-in-chief—is the most straightforward and
effective way to prove your case. Indeed, each party must plan to
meet its burden of production with evidence developed through direct
examination. Civil defendants, who cannot win simply by raising a
reasonable doubt, must also usually rely on direct examination to put
their case before the jury. It's neither feasible nor strategically prudent
to depend on eliciting the needed evidence through cross-
examination. Therefore, direct examination is extremely important,
and probably the dominant feature of success at trial.
FRE 611 says nothing affirmatively about direct examination, but
simply assumes that direct examination will be conducted. As we
discuss below, FRE 611(b) states that direct examination should set a
limit on the scope of cross-examination and in 611(c) provides that,
with limited exceptions, leading questions should not be used on
direct examination.
 FRE 611(b): The Scope of Cross-examination. Cross-
examination is one of the defining features of the adversary system.
“For two centuries, common law judges and

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lawyers have regarded the opportunity of cross-examination as an

essential safeguard of the accuracy and completeness of testimony.
They have insisted that the opportunity is a right, not a mere
privilege.”4 Direct examination generally reflects some degree of
cooperation between the examiner and the witness, and therefore
raises the danger that the witness will be permitted, if not
encouraged, to present a self-serving version of events. Cross-
examination is an effective way to test the witness's credibility and
show that there may be another side to the story. It also provides
some of the more exciting moments in a trial.
FRE 611(b) establishes, as a guideline, that two general areas of
inquiry are permissible for cross-examination. First, it is permissible to
explore matters about which the witness has testified on direct
examination. For example, in the Johnson case defense counsel's
cross-examination of the correctional officers explored details of the
altercation about which the witnesses testified on direct examination.
Second, it is always permissible to ask questions that may impeach
the credibility of the witness even though there may have been no
reference to these matters on direct examination. For example, the
prosecutor in the Johnson case cross-examined Johnson's cell mate,
George Butler, about Johnson's and Butler's gang affiliations even
though this subject was not part of the direct examination (pages 51,
76, supra). The purpose of these questions, as the sidebar
conference makes clear, was to undermine Butler's credibility by
showing his bias or prejudice in favor of Johnson. Similarly, in the
Johnson case it was appropriate for the prosecutor to ask defense
witnesses about prior convictions not mentioned on direct
examination because proof of prior convictions is one of the
traditional ways to impeach a witness's character for truthfulness.
 The same principle applies to the rehabilitation of witnesses on
cross-examination. Thus, if a direct examiner impeaches a hostile
witness, it would be appropriate to rehabilitate the witness on cross-
examination with questions about matters relating to credibility that
were not covered on direct examination.
Unless the court exercises its discretion pursuant to the last
sentence of FRE 611(b), it is improper to explore on cross-
examination subjects that were not mentioned on direct examination
and that do not affect the credibility of a witness. Consider, for
example, the testimony in the Johnson case of Ruth Taylor, the
records specialist (page 40, supra). Her direct examination testimony
was limited to questions about Johnson's criminal record. Thus, even
if Taylor had been an eyewitness to the jail cell incident, it would have
been inappropriate, in the absence of special permission from the
court, to question her about the incident on cross-examination. If the
defendant wanted to explore the matter with Taylor, the proper course
of action would be to call her as a witness during the presentation of
the defense.

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Redirect and Recross-examination. The direct examiner may

conduct a redirect examination when cross-examination has been
completed. The scope of redirect is limited to matters that were raised
in cross-examination; this means that the direct examiner is usually
not permitted to prove an essential element of the case that was
overlooked, although judges vary widely in how strictly they will
enforce this limitation.
Recross and further redirect examinations are sometimes allowed.
Each such successive examination is smaller in scope since it is
limited to responding to the immediately preceding redirect or
recross-examination. Although the party calling the witness is
theoretically entitled to the “last word,” judges will not let this process
go on ad nauseam. Such seesawing back and forth with redirect and
recross, trying to have the last word, can irritate the judge and jury,
and usually develops no new information. (This occurred frequently in
the Johnson trial, but has been edited out of the transcript in Chapter
One.)

3. FRE 611(a) and (b) and the Examination of Witnesses:

Practical Applications
a. Direct Examination
On direct examination, the goal is to let the witness provide pieces
of narrative, in his or her own words, that build an overall “story” to
the jury. It is important to help your witness appear as credible as
possible, since the witness will be supporting your case. Furthermore,
most of the evidence you will introduce at trial comes in through direct
examination. Although you can also introduce evidence through
cross-examination, the danger in relying on cross-examination (by
definition, the questioning of witnesses called by your opponent) to
introduce key evidence is that you have no control over what
witnesses your opponent will call; if your opponent elects not to call a
witness you were counting on to introduce some vital testimony,
document, or other evidence, you may find you have failed to prove
some essential element of your case.
Conducting an effective direct examination can be more challenging
than you might think. Generally speaking, the witness will describe
one or more incidents or factual occurrences, things the witness did
or perceived. Your role as questioner is generally that of a skilled,
sympathetic interviewer. Imagine that you know someone who has a
very interesting story to tell, and that you would like someone else to
hear the story. Although you could tell the story in your own words,
you believe it would be much more effective coming from the person
who had the experience firsthand. The witness should be allowed to
testify in a narrative format, with the lawyer's questions keeping the
story moving forward, keeping the witness from digressing, and
helping to vary the pace so the witness's story does not become
boring.
Questions for the most part should be open-ended: “What
happened next?” “What did you see?” “Why did you do that?”
Witnesses should be allowed to explain their actions. One way to
remind a witness to concentrate on communicating with the jury is
occasionally to begin a question with an admonition: “Tell the jury . . .
” As the direct examiner, you also have to pace the testimony by
asking several short questions

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and answers followed by a question with a longer narrative answer,

followed by short questions again. Consider the kind of narrative that
occurs when a lawyer fails to pace the testimony with questions, such
as when defendant Johnson spoke at the outset of his direct
examination. Was this an effective presentation of Johnson's story?
Should witnesses be allowed to testify in that manner?
As a general rule, a witness you call in your case will be cooperative
enough to meet with you in advance. (There is an important
exception to this. See “c. Direct Examination of 'Adverse' and 'Hostile'
Witnesses,” below.) This means that you can and should “prepare”
the witness by giving some idea of the subject matter you plan to
cover. Many attorneys rehearse the direct examination, asking the
planned questions and giving tips about how to answer them. The
idea of this is not to put words in the witness's mouth but to help the
witness tell the story effectively and avoid pitfalls that would unduly
damage credibility. Preparing the witness, while essential, also poses
an additional challenge. Having rehearsed the direct testimony with a
cooperative witness and become thoroughly familiar with it, you must
nevertheless appear to have a genuine interest in the questions being
asked and to ensure as much as possible that the witness is not
merely reciting a rehearsed text, but sincerely communicating to the
jury.
b. Cross-examination
FRE 611(b) embodies the “American” or “restrictive” rule of cross-
examination, in contrast to the wide-open rule of cross-examination,
used in the English trial system, which permits the opposing party to
question witnesses about anything that is relevant to the case. The
primary advantage of the American rule is that it allows the parties to
control the development of their cases. For example, the plaintiff may
wish to introduce a document into evidence early on in the trial and
may need to call the defendant or somebody closely associated with
the defendant to authenticate the document. Even if the witness has
knowledge of other aspects of the case, the plaintiff, for reasons of
strategy, may not want to go into those matters at this time or with this
witness. If the plaintiff limits the direct examination to the question of
authentication, application of the restrictive cross-examination rule
will prevent the defendant on cross-examination from exploring the
witness's knowledge about other aspects of the case.
The primary advantage of the English rule is that it allows the cross-
examiner to go directly to any relevant fact and incentivizes parties to
select their witnesses carefully. This rule also avoids the necessity of
determining what the scope of direct examination was. While the
English rule also avoids the necessity of recalling witnesses who may
have testimony to give regarding several issues in a case, FRE
611(b) reserves for the trial judge the discretion to accomplish the
same efficiency by permitting questions about matters that are
beyond the scope of direct examination, in which case the
examination shall be conducted “as if on direct examination.” This
means, in effect, that the witness has become the cross-examiner's
witness and that, therefore, “leading questions should not be used . . .
except as may be necessary to develop the witness' testimony.” FRE
611(c).

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Strategy and Goals of Cross-examination. An important strategic

goal for you as a cross-examiner is to take advantage of the subtle
opportunity to argue your case. Whole lines of questioning can
develop themes that you can emphasize by repetition and then argue
to the jury in closing. Leading questions, which can be asked on
cross-examination, also provide an opportunity to make assertions
that emphasize the inferences or interpretations you want the jury to
draw from the evidence.
 A second goal of cross-examination is to fill in gaps in your
evidence or obtain favorable admissions. Sometimes an adverse
witness is the only witness who can provide admissible testimony
needed to establish an element of your claim or defense, or to tell
part of the story you want to convey to the jury. In many instances,
you may have to call such a witness yourself as an “adverse witness.”
In addition to filling in gaps, some witnesses called by your opponent
may make (voluntarily or otherwise) admissions favorable to your
side. Helpful testimony can be particularly strong when it comes from
the mouth of the adversary or his witnesses.
Finally, you can use cross-examination questions to control damage
by minimizing the effect of adverse testimony by one or both of two
means. Without discrediting the witness, you can try to show how the
witness's version of the facts is consistent with, or at least not
inconsistent with, your theory of the case. Or you can discredit the
witness by attacking his or her credibility, either on specific points or
overall. Typically, a witness will not have been called by your
opponent to testify unless that testimony helps the opponent's case.
(If it does not, you may not need to bother with cross-examination.)
There are several techniques for discrediting, or attacking the
credibility of, a witness. These techniques, known collectively as
“impeachment,” are discussed in Chapter Seven.
Cross-examination Technique. The manner of conducting cross-
examination is perhaps most easily understood by contrasting it with
direct examination. Because direct examination seeks to develop the
story through the witness's own words and to bolster the witness's
credibility, the direct examiner wants the jury to focus on the witness.
Factual information arising out of the testimony should therefore
come from what the witness says, not the questioner. Questions
should be shorter than the answers; and should generally be open-
ended. The question “why” is often effective on direct.
On cross-examination, by contrast, the lawyer wants to provide (in
effect) most of the information the jury hears, while attempting to
control what the witness actually says by asking leading questions.
This usually means making an assertion of fact to which the witness
can fully respond by simply agreeing with a “yes” or “no” answer.
Skilled cross-examiners try to formulate precise, narrow questions
that don't call for explanation, keeping open-ended questions to a
minimum. In particular, “how” and “why” questions are generally
avoided like the plague: Such questions relinquish the cross-
examiner's control over the flow of information to factfinders and give
it to the witness. Asking such questions allows the witness to give a
self-serving explanation of the facts and argue inferences adverse to
your case. After a “why”-type question, you may be standing there
while the witness goes on at length and you have no basis to shut the
witness off.

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An old saw about cross-examination is not to ask “one question too

many.” This usually means that you shouldn't ask the witness to
agree to a conclusion or inference that constitutes the point you will
make in closing argument, even if you feel that the conclusion follows
logically from a series of propositions that the witness has agreed to.
The witness will invariably disagree and attempt to give a self-serving
explanation, arguing his or her own case. It can be difficult to know
when you have reached the stopping point where the next question is
the “one too many.” If words like “thus” and “therefore” seem to be
part of the question, that is a red flag not to ask it.
c. Direct Examination of “Adverse” and “Hostile” Witnesses
FRE 611(c) sets forth two circumstances in which a direct
examination may be conducted in the manner of a cross-examination,
using leading questions and following the tactics of cross-
examination: the direct examination of “adverse” and “hostile”
witnesses.
“Adverse witness” is a term used in common legal parlance to refer
to “an adverse party, or a witness identified with an adverse party”
within the meaning of FRE 611(c). This concept includes not only the
adverse party, but also his/her/its agents, employees, and people
who, through legal or other ties, are strongly identified with the
adverse party. It is not uncommon to call such an adverse witness in
your case-in-chief. You would typically call an adverse witness where
some item of evidence necessary to prove your case is uniquely
within the knowledge of the adverse witness; or where there is reason
to believe that the adverse witness will be so disliked or disbelieved
by the jury that his testimony will necessarily help rather than hurt
your case. An example would be calling the alleged sexual harasser
to the stand to show the jury what a bad guy he is, with the goal of
thereby supporting the plaintiff's credibility. If an adverse witness is
necessary or strategically helpful to your case, you may not want to
run the risk of waiting to cross-examine this witness. Your adversary
may not call this witness; or may do so but keep the direct
examination so circumscribed that you will not be able to cover the
subjects you want on cross-examination. (See FRE 611(b), limiting
scope of cross-examination.)
When questioning an adverse witness on direct examination, you
are allowed to use leading questions and, as a tactical matter, should
use all the techniques of cross-examination. Although using cross-
examination techniques, you do not have a limitation on the scope of
questioning as you do on an actual cross-examination. When you are
finished, your adversary has the right to do a “friendly cross-
examination,” during which leading questions will normally be
prohibited, as though that were a direct examination. See Advisory
Committee Notes to FRE 611(c) (the word “Ordinarily” in “Ordinarily
leading questions should be permitted on cross-examination” is
designed to encourage judges to prohibit leading questions on
“friendly cross-examination”).
A “hostile witness” is one who is presumed friendly or neutral when
called to the stand (i.e., a non-adverse witness), but who, during
questioning, demonstrates an attitude sufficiently hostile to the
questioner to raise an inference of opposition to the examiner's client
or identification with the adverse party. The examining attorney then
asks the court to declare the witness “hostile.” If the court does so,
the examiner can proceed with leading questions, and may want to
use the other cross-examination techniques as well.
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In addition to asking leading questions, the party calling an adverse

or hostile witness may also impeach that witness—attack the
witness's credibility using the techniques and rules discussed in
Chapter Seven. According to FRE 607, “the credibility of a witness
may be attacked by any party, including the party calling the witness.”
Indeed, the rule suggests that a party may impeach a witness on
direct examination even if the witness is not formally adverse or
hostile. FRE 607 abolishes the common law “voucher rule,” according
to which a party who called a witness was held to vouch for the
credibility of that witnesses. See 3A John Henry Wigmore, Evidence
§896, at 658-660 (James Chadbourne rev. 1970). Despite the
unqualified language in FRE 607, some courts have held that it is
impermissible to impeach one's own witness if the impeachment is a
subterfuge to get otherwise inadmissible evidence before the jury.
The admissibility of evidence for impeachment purposes, when that
evidence is inadmissible as “substantive evidence,” is discussed in
Chapter Seven.

4. Explanation of FRE 611(c): Leading Questions

Leading questions are questions that suggest the answer the
examiner is seeking. A classic example of a leading question takes
the form of a statement with a brief interrogative tag at the beginning
or end, such as “You saw defendant Johnson lunge out of his cell with
his fist, didn't you?” FRE 611(c) confirms—again, in the form of a
guideline to the trial judge—the common practice that leading
questions are normally prohibited on direct, but allowed on cross-
examination. This rule thus accounts for the most obvious difference
between the mode of conducting direct and cross-examination.
(“Redirect” is treated the same as direct examination, and recross the
same as cross-examination for purposes of the leading question
rule.) The assumption underlying FRE 611(c) is that a witness is likely
to be friendly or at least cooperative with the party calling the witness,
and will not be equally cooperative with the cross-examiner. This
presumed bias against the cross-examiner may make leading
questions essential in order to get at the truth. If counsel were not
permitted to ask a very specific “Isn't it true that . . . ?” question that
calls for a yes or no answer, it might be impossible adequately to
explore the details and nuances of the witness's knowledge and
testimonial qualities. Conversely, because of the witness's presumed
willingness to cooperate with the direct examiner, there is thought to
be a risk that the suggestiveness in leading questions on direct
examination may cause the witness to distort the truth in the direct
examiner's favor.

5. FRE 611(c) and Leading Questions: Practical Applications

a. What Is a Leading Question?
A leading question is best defined as one that suggests the answer
the questioner wants the witness to give. This definition is probably
overbroad; on some level, many if not most questions asked on direct
suggest in some way what the questioner wants the witness to say. If
they didn't, there would be no way to direct the witness's attention

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to the type of information the examiner is seeking. Therefore, many,

perhaps most, questions that fit this definition will ultimately be
allowed, because the judge (or opposing counsel) believes them to
be nonleading or else to be “borderline” or close calls that do not
merit the trouble of making or sustaining an objection. Ultimately, the
“test” of a leading question may often come down to a matter of
degree—how suggestive is the question?—that is heavily dependent
on context. You have to develop an intuitive feel for when these
“borderline” questions are leading or nonleading.
A common misconception is that questions calling for “yes or no”
answers are leading; in actuality, some in that form are, some aren't.
For example, “Do you live in Chicago?” is not leading.
Leading questions are often phrased as an assertion of fact, ending
either with a tone of voice implying a question mark at the end, or
with an actual verbal tag asking the witness to agree.

You were at home the night of the murder, isn't that correct [ . . . isn't that true? . . . right?
. . . weren't you?]?
Weren't you at home the night of the murder?
You were at home the night of the murder?
Isn't it a fact that you were at home the night of the murder?

In this form, the questions are clearly leading. But questions can be
leading without taking this form. It is the suggestion of the desired
answer that makes a question leading. A typical leading question
occurs when the questioner suggests a fact to a witness who seems
to have overlooked it. Consider the following piece of direct
examination of Officer Huston from the Johnson trial (page 15,
supra).
Q: Why was inmate Johnson and inmate Butler secured, handcuffed? What's the
purpose?
A: Because if they are combative or not complying with orders; disciplinary reasons, you
know?
Q: Officer safety reasons?
A: Yes, officer safety and security.
The prosecutor wanted the witness to give “safety” as the reason for
handcuffing the inmates, but the witness said “discipline” instead.
Imagine that defense counsel had made a timely objection after “Q:
Officer safety reasons?” and that the objection was sustained (as it
should be). The problem with the question is its leading form, not that
the answer will put inadmissible matter before the jury. (This will be
further explained when we deal with the subject of “objections.”)
Here, the prosecutor can then simply rephrase the question.
Q. by Mr. Cummings: Okay, Officer Huston, was “officer safety” a further reason to handcuff
the inmates?
Mr. Deemer: Objection. That's still leading.
The Court: Sustained.
This question is phrased more like a normal question than a
statement, but it is really no different from the first time it was asked:
It still suggests the desired answer.

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 Q. by Mr. Cummings: [Huge sigh.] Did you have any reasons other than disciplinary
reasons for handcuffing the inmates?
This question may be borderline. It could technically be construed as
leading because, in the present context, the question suggests that
Huston should say “yes.” Whether a question unduly suggests the
desired answer may often depend on context. But the judge would in
all likelihood overrule a “leading” objection at this point; also the jury
will start to think that the objecting lawyer did not want the information
to come out.
A: Yes.
Q: What other reason or reasons?
A: Officer safety.
To be sure, the “leading” objection did not keep the witness from
supplementing his answer in the manner suggested by the questioner
—an attentive witness would know what he's supposed to say from
the first phrasing of the leading question. However, the objections
may serve to make the point to the jury that the ultimate answer was
the “lawyer's answer” more than the witness's, and—who knows—the
questioner might have moved on without getting the answer after the
first objection was sustained.
b. Leading Questions: Tactical Considerations
In practice, there will be considerable variation in how much leading
you can “get away with” in direct examination. If the opposing counsel
does not object, the court is unlikely to stop you on its own initiative.
Even if objections are made, the trial judge has virtually unreviewable
discretion to allow leading questions. In the Johnson case, the
prosecutor got away with numerous leading questions that were truly
objectionable because the defense counsel didn't bother to object
(perhaps because he was discouraged that the judge overruled his
“leading” objection when he made one). See, e.g., pages 11-12, 13,
25, supra.
There is a downside, however, to asking a lot of leading questions.
Because the focus on direct examination should be on the witness,
rather than on the examiner, leading questions can backfire as a
direct examination technique. A witness who delivers key testimony in
response to leading questions on direct examination will give the
impression of saying whatever the lawyer wants, and can lose
credibility. And of course, conducting a direct examination in this way
makes the examiner vulnerable to objection: “Your Honor, counsel is
testifying rather than the witness.” On the other hand, if the witness is
weak, equivocal, or otherwise has difficulties getting his testimony out
in his own words, it may on balance be better to lead than not—if you
can get away with it.

F. OBJECTIONS AND PRESERVATION OF ERROR

FOR APPEAL: FRE 103

The substantive rules of evidence revolve most clearly around two

features of the trial process that remain to be considered: trial
objections, and “making a record” that

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preserves evidentiary issues for appellate review. These two subjects

are closely intertwined. Evidentiary rulings admitting evidence over
objection will virtually never be the basis of appellate reversal without
a clear, direct, and correct objection in the trial record. If evidence is
excluded, the losing side must make sure that the substance of the
evidence, and the theory of its admissibility, are apparent from the
record in order to preserve the issue for appeal. FRE 103(a)(2). It is
the job of the advocates to create a record that adequately reflects
the objection, any response to it, and the judge's ruling. This is called
“perfecting the record” and “preserving the issue for appeal.” In this
section we will first discuss the principles and mechanics of
objections, and then turn to appellate review of the trial record.

1. FRE 103
RULE 103. RULINGS ON EVIDENCE

(a) Preserving a Claim of Error. A party may claim error in a ruling to admit or exclude
evidence only if the error affects a substantial right of the party and:
(1) if the ruling admits evidence, a party, on the record:
(A) timely objects or moves to strike; and
 (B) states the specific ground, unless it was apparent from the context; or
(2) if the ruling excludes evidence, a party informs the court of its substance by an
offer of proof, unless the substance was apparent from the context.
(b) Not Needing to Renew an Objection or Offer of Proof. Once the court rules
definitively on the record—either before or at trial—a party need not renew an objection
or offer of proof to preserve a claim of error for appeal.
(c) Court's Statement About the Ruling; Directing an Offer of Proof. The court may
make any statement about the character or form of the evidence, the objection made,
and the ruling. The court may direct that an offer of proof be made in question-and-
answer form.
(d) Preventing the Jury from Hearing Inadmissible Evidence. To the extent practicable,
the court must conduct a jury trial so that inadmissible evidence is not suggested to the
jury by any means.
(e) Taking Notice of Plain Error. A court may take notice of a plain error affecting a
substantial right, even if the claim of error was not properly preserved.

2. Explanation of FRE 103(a) and (d): Objections, Offers of Proof,

and Preservation of Evidentiary Issues for Appeal
An objection is the means by which a lawyer can interrupt the trial to
oppose the introduction of evidence. Although objections are most
frequently made to questions or answers during a witness's
testimony, objections can be made to any type of evidence:

112

real evidence, demonstrative evidence, or testimony. The purpose of

an objection is twofold: (1) if the objection is sustained, to increase
your chances of winning the trial by excluding harmful evidence from
consideration by the trier of fact; (2) if the objection is overruled, to
preserve for appeal your argument that the evidence should have
been excluded, pursuant to FRE 103(a)(1).
When an objection is made, one of three things will usually happen.
The court will “sustain” (agree with) the objection, “overrule” (disagree
with) the objection, or ask counsel for further elaboration or argument,
usually outside the hearing of the jury, such as at the sidebar. If the
judge rules on the objection right away, the losing lawyer may feel it
necessary to try to make further argument before the trial proceeds
any further, and may ask to approach the bench to argue the point.
Trial lawyers typically request such sidebar conferences when the
judge's ruling will admit significantly prejudicial evidence, or will
deprive the party of an opportunity to present evidence at the right
moment in the trial.
Moreover, where an objection has been sustained, it may be
necessary for the lawyer offering the evidence to approach the bench
to make an offer of proof. FRE 103(a)(2) provides that in order to
preserve an appeal of an erroneous ruling excluding evidence (an
incorrectly sustained objection), the party must “[make] the substance
of the evidence . . . known to the court” unless the substance “was
apparent from the context in which the questions were asked.” This
procedure of advising the court of the substance of the excluded
evidence is called an “offer of proof.” Id. An offer of proof can take the
form of a statement on the record by counsel summarizing what the
excluded evidence would show (e.g., “Your Honor, the witness would
testify that Officer Smith told him that the prison was on lockdown
because Officer Walker had beaten an inmate.”).
FRE 103(a) provides that an evidentiary ruling will be a ground for
reversal on appeal only if two conditions are met. The error must
“affect a substantial right” of a party, meaning that the ruling made
some difference in the outcome of the trial. Second, the party must
have made a timely objection and, where the ruling excludes
evidence, an “offer of proof” alerting the court to the substance of the
excluded evidence. Failure to object will probably mean that the
judge's ruling, or the adversary's behavior, cannot be grounds for
reversal. There is an exception to this general rule. “Plain” error,
referred to in FRE 103(d), means an error so serious, and so obvious,
that it can be grounds for reversal even though no objection was
made to it during trial. The trial judge should have noticed it, and it is
highly probable that it affected the outcome. This doctrine was
originally developed in criminal cases to protect defendants from the
errors of appointed counsel. Under FRE 103(d) it applies in civil
cases as well.

3. FRE 103(a)(1) and (2) and Objections: Practical Applications

a. Two Types of Objections
 There are two basic types of objections: an objection to the
improper form of a question, and an objection to the admissibility of
the answer.

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An objection to admissibility of the answer is intended to exclude

inadmissible evidence. Such objections are made when it appears
that the question, even if properly phrased, calls for evidence barred
by exclusionary rules of evidence or whose relevance or foundation
has not been established. Most of the substantive law of evidence
that you will study in this course concerns these questions of
admissibility, and the grounds for ruling on the objections are for the
most part found in the rules of evidence.
An objection to the form of the question is intended to regulate the
mode of questioning and the behavior of the examiner. In contrast to
objections going to admissibility, objections as to form are governed
by traditional trial practice and the trial judge's inherent, discretionary
authority rather than formal evidence rules.5 Examples of objections
to the form of the question include “leading,” “argumentative,” or “calls
for a narrative response.” Other examples of objections to the form of
the question include “compound,” “vague,” “ambiguous,”
“mischaracterizes the testimony.” (See “Trial Objection Cheat Sheet,”
page 120-22, infra.)
Questions objectionable as to form may be sustained even though
the evidence they seek is ultimately admissible. Consider the
beginning of Officer Van Berg's direct examination in People v.
Johnson (page 23, supra):
Q: Did you have occasion on that day [March 28] to come into contact with an inmate by
the name of Johnson?
A: Yes, I did.
Q: Same individual seated at the end of counsel table?
A: Yes.
The last question is leading, and would have been objectionable had
the defendant's identity as the perpetrator been in dispute. It would be
the form of the question that is objectionable, not the answer. The
same information could be obtained through a proper nonleading
question:
Q: Do you see that person in the courtroom today?
A: Yes.
Q: Where?
A: Seated next to the defense counsel.
A common mistake of inexperienced attorneys is to move on to the
next question after an objection to the form of the question—such as
“leading”—has been sustained.
Questions can violate more than one rule relating to form, and it is
appropriate to mention multiple grounds for the objection.
Q: Did you see the defendant first lunge at Officer Walker and then eventually strike
Officer Huston?

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Defense Counsel: Objection: leading, compound.
The Court: Sustained.
In addition to its leading form, the question is also compound
because it asks the witness to describe two logically separable facts
of importance to the case. The objections can also be made one after
the other, if the first one is overruled.
Defense Counsel: Objection, compound.
The Court: Overruled.
Defense Counsel: Leading.
The Court: Sustained.
It is also possible, of course, that a question can be framed in an
objectionable form and seek arguably inadmissible matter. Consider
the discussion of “Facility B” during the Huston direct examination in
Johnson. Suppose the prosecutor, Cummings, had introduced this
subject with the question:
Q: Isn't Facility B a transition facility for violent inmates coming out of SHU, before they
are placed in general population?
This question is not only leading (an objection to form), but it also
calls for arguably inadmissible character evidence to the effect that
defendant Johnson is a violent person because he was housed in
Facility B. This example also illustrates how a timely objection will not
always be adequate to prevent the jury from hearing inadmissible
matter—here, it was embedded in the prosecutor's leading question.
b. Timing of Objections
Making timely objections is probably the most difficult trial skill to
learn. In a very short time—often no longer than the second or two
before the witness answers the question—you have to determine
whether the question is objectionable, on what basis, whether
tactically the objection is worth making, and then actually say
“objection,” typically while getting to your feet. This is challenging to
do. But failing to make a timely objection can result in a failure of both
goals of objecting at all. A failure to object—and even an untimely
objection—fails to keep the evidence from the jury, and normally
waives the evidentiary error on appeal. There is a narrow exception
to this so-called contemporaneous-objection rule: Under FRE 103(d),
an appellate court may correct “plain error” in spite of the absence of
a contemporaneous objection. The plain error exception is used
“sparingly,” and only to correct “particularly egregious errors” that
would result in a miscarriage of justice if not corrected. United States
v. Young, 470 U.S. 1, 15 (1985).
A timely objection to the form of the question must be made before
the question is answered. This point is easy to understand. In
Johnson, the defense counsel was consistently late in objecting to the
prosecutor's questions (see, e.g., pages 9, 25, 39):
Q: Did he appear to you to be attempting to fight or strike Walker or any of the officers?
A: Yes.
Mr. Deemer: One moment. That's leading.

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If the answer is given before the objection, judges will often allow the
answer to stand, and will either overrule the objection or simply say,
“the witness already answered” or “the answer stands.” But there is
also an expectation that the witness should not jump the gun with his
answer. If the witness answers an objectionable question after the
objecting lawyer has already started speaking or before the judge
rules, the judge may strike the answer and caution the witness not to
answer questions while objections are being made or ruled on.
A timely objection to the inadmissibility of an answer must be made
as soon as the inadmissibility becomes apparent. This can be tricky.
Typically, it will be apparent that a question is likely to call for an
objectionable response: “Did they tell you that something had
happened to your hand?” sounds like it calls for inadmissible hearsay,
for example. Or suppose a supervising correctional officer were to
testify that he sent the correctional officers to Johnson's cell to
retrieve the trays, but that he did not go himself. If such a witness
were asked whether Johnson hit or kicked Huston or Van Berg, the
question would clearly call for speculation or lack the foundational
requirement of firsthand knowledge. Where a clear potential for an
inadmissible answer inheres in the question, the objection should be
made before the answer is given. However, in contrast to objections
to the form of the question, where the judge is unlikely to strike the
answer, if you did not object fast enough to an inadmissible answer,
you might still object belatedly and ask the judge to strike the answer.
Sometimes, the objectionable matter cannot be anticipated from the
question. “Tell us what happened next” is generally an
unobjectionable question, but the witness could say all kinds of things
that are not admissible testimony. Consider, for example the lengthy
narrative defendant Johnson gave in response to defense counsel's
question “Would you explain to the jury what that problem
[concerning the package] was?” The lengthy answer that followed
contained some arguably objectionable hearsay and irrelevant matter.
It is fair game to cut the witness off with an objection and motion to
strike as soon as the objectionable character of the answer becomes
clear; most judges will be more lenient about striking inadmissible
portions of an answer in this situation, even if you did not jump in at
the first possible moment. For example:
Q: Tell us what happened next.
A: Well, the Sergeant told me we were on lockdown because—
Counsel: Objection. Hearsay. Move to strike.
The Court: Sustained. The answer is stricken.
When inadmissible matter has gotten in front of the jury and you
failed to object (presumably because you couldn't anticipate the
objectionable matter from the question) the proper response is a
motion to strike the offending testimony, and perhaps a request for
the judge to admonish the jury to disregard it.
Q: Tell us what happened next.
A: Well, the Sergeant told me we were on lockdown because another inmate had gotten
beat up by Officer Walker.
Counsel: [Snapping belatedly to attention.] I move to strike the last answer. It's inadmissible
hearsay.
The Court: The last answer is stricken. The jury will disregard it.

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c. Stating the Objection
An objection is not preserved for appeal unless “a timely objection
or motion to strike appears of record, stating the specific ground for
the objection.” FRE 103(a)(1).
In practice, you will encounter and even make both specific and
general objections. A general objection is an expression of an
objection without stating the grounds. Where the basis for the
objection seems obvious, the lawyer may say nothing more than
“objection”—or the judge may rule on it without waiting for the lawyer
to specify the grounds. You may hear similarly “general” objections
using some boilerplate phrase that does not specify the ground, such
as “Objection to the form of the question,” or one that is merely vague
and conclusory, such as “irrelevant, incompetent, and immaterial.” It
may not hurt your case if you make a general objection that is
sustained, because your goal of keeping the evidence out is
accomplished, and you have no basis to appeal your own successful
objection. If a general objection is overruled, however, it is likely to be
deemed to waive the issue on appeal for failure to state the ground.
Therefore, it is better practice to specify your grounds in the
objection.
It is vital to state the correct basis for the objection. The judge is
required to rule only on the stated ground of the objection. If you state
an invalid basis for an otherwise proper objection, your objection
could be overruled even if it could have been sustained on another
ground. Judges do not usually cue an attorney as to the correct
objection, or make the correct objection on their own. More likely, the
judge will simply overrule an incorrect objection.
Specific objections need only communicate the basic reason for the
objection. “Objection, hearsay” should probably be sufficient to
preserve the point for appeal; it is not necessary to spell out your
theory as to how the only relevant use of the out-of-court statement is
for the hearsay purpose of proving the truth of the matter asserted.
Indeed, most judges frown upon so-called speaking objections—
making arguments in the course of stating an objection—and may
even specifically warn the lawyers at the start of the trial to refrain
from doing so. The general rule of decorum, then, is to state the
ground for an objection as succinctly as possible; and if extended
argument is needed, the objecting lawyer is expected to request a
sidebar conference.
As you can see from the “Trial Objection Cheat Sheet,” which
follows on pages 120-22, there are certain commonly used words or
phrases to make certain routine objections. But these are not magic
words; anything that gets the point across succinctly will do.
“Objection, calls for inadmissible character evidence” and “Objection,
Rule 404” probably would both suffice to make the same point. In
addition, laundry lists of common or boilerplate objections should not
obscure the fact that an objection can be based on any rule or
principle that would exclude the evidence. Some of these principles
may not be adequately expressed in the common boilerplate terms.
Some experienced trial practitioners suggest trying to put objections
into plain language rather than using legal buzz-words. Since the
objection tends to signal the jury that you want to keep them from
hearing something, that impression may only be reinforced when the
objection is stated in legalese. Thus, it may be preferable to say
“Objection—this witness has no way of knowing who wrote the
document” rather than to say “Objection—lack of foundation.” On the
other hand, using plain language

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 could run afoul of a judge's warning against “speaking objections.”
In addition, there may be occasions when you want to obscure your
reasons from the jury. You have to use your judgment.
If offending matter has already been stated by the witness, the
proper procedure is to make a motion to strike. You need to specify
both the grounds for the motion (which are the same kinds of points
as grounds for objections) and the portion of testimony you contend
should be stricken. “I move to strike the witness's answer in its
entirety. It's hearsay.” or “Motion to strike as nonresponsive. I move to
strike the witness's answer after the word 'yes.' ” Having testimony
stricken is, of course, a much less effective remedy than preventing it
from coming into the record before the jury. As the old saying goes,
“you can't unring a bell.” However, it should be done to preserve the
issue for appeal. Moreover, the remedy can have a practical
consequence if the jury asks for a “read-back” of the trial transcript
during jury deliberations: Stricken portions of testimony are omitted
from the read-back.
d. Tactical Considerations
Many objectionable questions are asked with impunity because the
opposing counsel decides an objection is not worth making. Again, an
objection signals to the jurors that counsel wants to keep them from
hearing some information. This could create an impression of having
something to hide, and this downside of objecting has to be weighed
against the damage to one's case if the evidence comes in. Other
downsides to objecting can include irritating the judge or jury, or (if
the objection is made during your opponent's cross-examination of
your witness) possibly confusing the witness. Objections to the form
of a question may simply cue your adversary to phrase a clearer,
more effective question. Moreover, an objection can often underscore
the damaging aspects of an objectionable question, and wisdom may
on these occasions dictate silence in the hope that the jury will miss
the point. Finally, objectionable questions sometimes will be helpful to
your case either because the specific answer will be helpful or
because the question will “open the door” to helpful testimony that
might not otherwise be admissible.
 On the other hand, there are tactical advantages to making
objections. Jurors will expect the lawyers to make some objections,
which gives you some leeway to do so without reaching an irritation
threshold. Moreover, by sitting mute while your witness is being
flogged with seemingly unfair questions, you may send a signal that
you are being lazy, inattentive, or indifferent to your case. Finally,
objections—particularly if sustained—can disrupt the rhythm or flow
of your opponent's examination or leave your opponent stumped as
to how to ask a proper question to get in some important piece of
evidence.
Of course, these tactical considerations in favor of objections—
particularly those regarding disruption of one's adversary's
questioning—do not justify making objections in bad faith. To be sure,
some trial attorneys will cross the line and make objections purely to
rattle the opposing counsel; but one hopes that bad karma will be
visited upon them. You should have a good-faith, arguable basis for
any objection you make.

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4. FRE 103(a) and (d): Preservation of Error for Appellate Review

The appellate court reviewing the defendant's conviction in People v.
Johnson ruled that the prosecutor committed prosecutorial
misconduct by referring to Johnson's alleged gang membership when
questioning inmates Butler and Johnson, and in closing argument to
the jury. (See pages 49-51, and 76, supra). The court held this
to be misconduct because no evidence was ever produced that gave
the prosecutor reasonable grounds for believing that Johnson was in
fact a gang member. The court held the error was harmless, however,
because
the passing mention of gangs was a peripheral matter in appellant's case. The jury knew
that the defense witnesses were inmates in a maximum security prison [and that]
appellant was a rapist, Butler a robber, and Green a murderer. In these circumstances, it
is not reasonably probable that the jury's assessment of credibility would have been
materially different if gangs had never been mentioned.
 How are such issues concerning erroneous admission (or
exclusion) of evidence raised and preserved for appellate review?
a. Making the Record—in General
When a judgment is rendered based on a jury or bench trial, any
appeal is most likely to focus on the evidence “in the record.”
Appellate questions of substantive law will look at whether sufficient
evidence supports the legally defined elements of the claims or
defenses. Evidentiary questions will consider whether the appellant's
rights were unduly harmed by excluding evidence that should have
been admitted or admitting evidence that should have been excluded.
Such determinations can't be made without, typically, a review of “the
record” of the trial.
The phrase “the record” often is meant as a broad reference to the
trial court's file on the case. It contains all the court papers filed by the
parties' lawyers, transcripts of any trial or evidentiary hearing held by
the court, and any evidence submitted in a trial, hearing, or motion.
The trial “record” is a subset of the court's file, including the trial
transcripts and exhibits. The key point is that the record serves as the
universe of facts and trial court rulings within which an appellate court
must operate in making its rulings on appeal. Appellate courts are not
allowed to “go outside the record” by considering facts or legal
arguments that have not been presented to the trial court.
At trial, therefore, it is vitally important for counsel to be attentive to
the record to ensure that it is complete, both in terms of evidence and
legal arguments and rulings. “Making the record” very often means
nothing more or less than having what is said recorded (typically
stenographically) and ultimately transcribed by the court reporter so
that it becomes part of the official trial transcript. Sometimes, the
judge, either inadvertently or by design, will conduct some important
moments of legal argument or ruling during the trial without the court
reporter present—an argument in chambers or a sidebar conference,
for example, might go unrecorded, and therefore be “off the record.”
In such cases, it is the responsibility of the lawyer to put the matter
“on the record”—that is, to summarize what occurred when the court
reporter is back on duty and making the verbatim record. Otherwise
the matter occurring off the record could be effectively

119

insulated from appellate review. For example, the sidebar

conference involving whether to admit evidence about “Facility B” in
Johnson happened to be held on the record. Had it not been, an
appellate court would have been no more able to review the issues
raised in that discussion than you would have been as a reader of the
transcript.
Likewise, lawyers have to be conscious of the record becoming
garbled or confusing. There are a number of mistakes that
inexperienced trial lawyers occasionally make that can be avoided by
paying careful attention to what is occurring at trial. Think about the
following issues: (a) overlapping—if a trial is being conducted with a
court reporter, which is still typical today, the reporter cannot
accurately record what happens when more than a single person
talks at once. In such a circumstance, the careful attorney will be sure
to go back and explain “for the record” what transpired; (b) spelling—
names often cause problems because quite different spellings are
often pronounced similarly (e.g., White, Whyte, Wite, Wyatt); (c)
figures—when an attorney says “thirty-one-o-four,” does this mean
3104, 31.04, 30,104, or what? Make sure it is clear; (d) gestures—
make sure gestures are explained (“let the record show that the
witness pointed at the defendant”).
b. Making the Record for Appeal of Evidentiary Rulings
For purposes of appeal of evidentiary rulings, “making the record”
means complying with FRE 103. The appealing party must have
made (“on the record”) a specific objection or an offer of proof,
depending on whether the disputed item of evidence was admitted or
excluded. See FRE 103(a)(1) and (2). This requirement of FRE
103(a) is a mainstay of the adversary system. The judge is not
responsible for running an error-free trial. Rather, the burden is on the
parties to protect their own interests through timely arguments aimed
at redressing errors that significantly affect their interests. The
advocates must therefore take the initiative to object to their
opponents' improper use of evidence or other inappropriate
courtroom behaviors. In addition, the advocates must make known
the grounds for their objections, and the opponent is always given the
opportunity to respond. Only then is the judge required to, and is in a
better informed position to, make a ruling that affects the conduct of
the trial. This requirement raises the stakes of the lawyer's tactical
decisions as to when or when not to object.
Motions in limine and FRE 103 interact in important ways. Formerly
in many federal courts (and still in several state court systems), if a
motion in limine to exclude evidence was denied, the advocate was
required to renew the objection to the evidence at trial in order to
preserve the issue for appeal. Effective December 1, 2000, however,
FRE 103(a) was amended to provide that any “definitive ruling on the
record admitting or excluding evidence, either at or before trial” is
now sufficient “to preserve a claim of error for appeal.” This
amendment was specifically intended to apply to “so-called in limine
rulings.” Advisory Committee Notes to FRE 103.
c. Standards of Appellate Review of Evidentiary Errors
Analytically, appellate courts proceed through two steps in
considering whether a trial judgment should be reversed for an
erroneous evidentiary ruling. The first

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analytical step asks “was there error?” Most, but not all, trial court
decisions about whether to admit or exclude evidence are reviewed
on appeal under an “abuse of discretion” standard. This means the
appellate court will not “substitute its judgment” for that of the trial
court—that is, the appellate court will not redecide the issue as
though it were the original decision maker. (The latter kind of
appellate review is called “independent” or “de novo” review. De novo
review is applied to trial court rulings deemed “questions of law,” such
as whether the court selected the correct legal rule or interpreted it
properly. This is discussed further in Chapter Three, Section B.3.)
Under the abuse of discretion standard, to find error at all, the
appellate court has to conclude that the trial court's decision was not
merely wrong, but something close to an unreasonable decision.
Second, if there was error, was the error “harmless”? FRE 103(a)
states that an appeal based on an erroneous ruling admitting or
excluding evidence at trial cannot win a reversal unless the error
affects a “substantial right” of the party. “Substantial right” has been
construed by courts in most circumstances as invoking the “harmless
error” standard. An error is harmless if it did not affect the outcome of
the trial. Would the jury have reached the same result had the
erroneously admitted evidence been excluded (or had the
erroneously excluded evidence been admitted)? If so, the error is
harmless. California Evidence Code §353, interpreted in the appeal of
the Johnson case, similarly requires that the error resulted in a
“miscarriage of justice.” Both FRE 103 and the California Code thus
require the appellate court to answer the same question—how likely
is it that the error actually affected the outcome?
What degree of certainty must there be in evaluating the
hypothetical state of affairs (the outcome of the trial had the error not
been made)? Here, there is some variation among different courts.
For example, the U.S. Court of Appeals for the Ninth Circuit
formulated the “harmless error” standard as requiring the appellate
court to affirm the trial court if the evidentiary error “more probably
than not was harmless,” or if there was a “fair assurance” that the
error was harmless (e.g., United States v. Hitt, 981 F.2d 422 (9th Cir.
1992)). The Third Circuit phrased the standard differently: The trial
court will be affirmed only if it is “highly probable” that the evidentiary
error did not affect substantial rights (e.g., McQueeney v. Wilmington
Trust Co., 779 F.2d 916 (3d Cir. 1985)). The California standard
applied in the People v. Johnson appeal holds that a judgment should
be reversed only if it is “reasonably probable” that the error affected
the outcome.
The foregoing has assumed what might be thought of as “garden
variety”—that is to say, nonconstitutional—error. Some erroneous
evidentiary rulings are held to violate constitutional rights—for
example, erroneous admission of hearsay might violate a criminal
defendant's Sixth Amendment right to confront opposing witnesses.
Where constitutional error occurs, the trial court judgment will be
affirmed only if the error was “harmless beyond a reasonable doubt.”

TRIAL OBJECTION CHEAT SHEET

Note: This list of objections is not intended to be exhaustive. A
comma separating objections suggests interchangeable phrasing; a
semicolon suggests different but closely related objections.

121
OBJECTIONS TO THE FORM OF THE QUESTION:
122

G. REFLECTIONS ON NATURAL REASONING AND THE

ADVERSARY SYSTEM

1. The Adversary System Reconsidered

In the United States, the adversary system remains the dominant
theory of litigation. The concept that disputes are for the most part
private matters controlled by private

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individuals before relatively passive judges does not seem under

serious reconsideration on a broad scale. Perhaps it should be,
however, for at least two reasons.
The first is that the adversary system is based on the assumption
that each party will be effectively represented, which means among
other things that the parties will have the resources necessary to fund
the litigation. This assumption is often false and can lead to poor
presentation of one side or the other (or both) of a dispute. Such
wealth disparity can in turn lead to the dramatic effect of litigants with
resources being systematically and on occasion decisively favored
over their impecunious adversaries.
The second reason for reconsidering our commitment to the
adversarial system is the possibility that the nature of cases being
litigated is changing from the bipolar assumptions of the traditional
model, which involves two private litigants disputing an essentially
private matter, to a “public law model” that looks much different.
Consider the following:
The characteristic features of the public law model are very different from those of the
traditional model. The party structure is sprawling and amorphous, subject to change
over the course of the litigation. The traditional adversary relationship is suffused and
intermixed with negotiating and mediating processes at every point. The judge is the
dominant figure in organizing and guiding the case, and he draws for support not only on
the parties and their counsel, but on a wide range of outsiders—masters, experts, and
oversight personnel. Most important, the trial judge has increasingly become the creator
and manager of complex forms of ongoing relief, which have widespread effects on
 persons not before the court and require the judge's continuing involvement in
administration and implementation. School desegregation, employment discrimination,
and prisoners' or inmates' rights cases come readily to mind as avatars of this new form
of litigation. But it would be mistaken to suppose that it is confined to these areas.
Antitrust, securities fraud and other aspects of the conduct of corporate business,
bankruptcy and reorganizations, union governance, consumer fraud, housing
discrimination, electoral reapportionment, environmental management—cases in all
these fields display in varying degrees the features of public law litigation. . . .
[As a consequence of this changing model of litigation] [t]he courts . . . continue to rely
primarily on the litigants to produce and develop factual materials, but a number of
factors make it impossible to leave the organization of the trial exclusively in their hands.
With the diffusion of the party structure, fact issues are no longer sharply drawn in a
confrontation between two adversaries, one asserting the affirmative and the other the
negative. The litigation is often extraordinarily complex and extended in time, with a
continuous and intricate interplay between factual and legal elements. It is hardly
feasible and, absent a jury, unnecessary to set aside a contiguous block of time for a
“trial stage” at which all significant factual issues will be presented. The scope of the fact
investigation and the sheer volume of factual material that can be exhumed by the
discovery process pose enormous problems of organization and assimilation. All these
factors thrust the trial judge into an active role in shaping, organizing and facilitating the
litigation. We may not yet have reached the investigative judge of the continental
systems, but we have left the passive arbiter of the traditional model a long way behind.
[Abram Chayes, The Role of the Judge in Public Law Litigation, 89 Harv. L. Rev. 1281,
1282-1283, 1284, 1297-1298, 1302 (1976).]
These two matters, wealth disparity and the changing nature of
litigation, cast some doubt on the foundations of the adversarial
system of litigation, although they

124

are by no means dispositive arguments against it. As you proceed

with your studies, consider on the one hand whether full-blown
adversarial litigation within the rules of evidence is too complex and
burdensome for simple, straightforward cases involving at least one
party with relatively scarce resources, and on the other hand whether
the adversarial process and strict rules of evidence are too rigid and
crude to deal with complex modern litigation. Think also of what
possible alternatives there might be.
Recall the connection between the adversary system and the role of
limited government, mentioned at the beginning of Section B of this
chapter. This conception of the role of the government in the
resolution of disputes is not universally shared. In the “inquisitorial”
systems of many Western European countries, disputes are not
“private” matters to the extent that they are in the United States, and
the adjudicative tribunal often involves itself actively in investigation,
and controls the trial process much more than the litigants do. Those
who favor continental systems are inclined to the view that control by
a disinterested tribunal will lead to less abuse and manipulation of the
evidence, thus increasing the chances that judgments consistent with
the truth will emerge. For a discussion of these and related matters,
see John Langbein, The German Advantage in Civil Procedure, 52 U.
Chi. L. Rev. 823 (1985); Ronald J. Allen, Stefan Köck, Kurt
Riechenberg & D. Toby Rosen, The German Advantage in Civil
Procedure: A Plea for More Details and Fewer Generalities in
Comparative Scholarship, 82 Nw. U. L. Rev. 705 (1988); Mirjan
Damsaka, Evidence Law Adrift (1997).
Yet another issue to consider emerges from the Johnson transcript.
The rules of evidence are not rigidly adhered to at every turn in a trial;
in many specific instances, they are either largely ignored or applied
for the most part with a large dose of lenient discretion. On the other
hand, at a few crucial places in the trial the rules of evidence seem to
matter a great deal and lead to pointed arguments. In the Johnson
trial, for example, this occurred where character evidence is
disallowed in order to preclude inference of action in conformity
therewith. See pages 11, 55, supra. Why is that? Is that a healthy or a
troubling sign? How typical do you think the transcript is in this
respect?
As you will also see, each year more and more cases involve expert
testimony of various kinds, which means that one or both of the
litigants think that the case can be tried fairly only by employing
specialized knowledge that is beyond the common knowledge and
experience of the layperson. As your studies progress, ask how well
the legal system takes advantage of the knowledge and expertise of
other disciplines. For that matter, how well does it take advantage of
the knowledge of the common citizen? That question leads to the
next issue.

2. Why Have Rules of Evidence?

To resolve disputes about past events, we have to make judgments
about what actually happened. This means finding facts, which in turn
requires evidence of those facts. The law of evidence structures the
process of proof at trial, but it does so with an interesting constraint.
In many instances the individuals deciding the facts will be

125

laypersons chosen at large from the community to serve on juries.

They are amateurs at legal factfinding. Jurors are not, however,
amateurs at factfinding in general. Every competent member of
society from an early age begins to collect and perfect methods of
factfinding that facilitate navigating the environment, and most of us
do so with remarkable efficiency. In large measure, the law relies on
these natural reasoning processes that its factfinders (juror or judge)
possess. Indeed, the law could rely on them exclusively. It could
permit the parties to present whatever evidence they like, the
factfinders to make whatever investigation they like, and let the
natural reasoning process of the factfinders lead them to whatever
decision they believe to be appropriate. This would be a system of
free proof rather than one constrained by a complex law of evidence.
Obviously, the legal system has not adopted a system of free proof,
or else the previous sentence would have ended your course on
evidence. It instead regulates the process of proof in various ways for
various reasons. Some of these ways and their underlying reasons
are perfectly understandable and uncontroversial. Others are more
problematic. Consider the following justifications for regulating the
proof process and reflect on how persuasive they are:
(1) Efficiency. Litigants pay only a small fraction of the cost of
maintaining the judicial system. Judicial resources are provided free
of charge to litigants, and they constitute a large subsidy to litigation.
The litigants have virtually no incentive to preserve judicial resources;
indeed they have every incentive to squander them in an effort to win
their cases. Economists call this problem a fundamental misalignment
between private incentives to use the legal system and social good.
See Steven Shavell, The Fundamental Divergence Between the
Private and the Social Motive to Use the Legal System, 26 J. Legal
Stud. 575 (1997). A system of free proof allowing the litigants to do
more or less what they liked would lead to a substantial wasting of
judicial resources. Further, a rich litigant could simply wear down a
more impecunious opponent through the endless presentation of
trivia. For both reasons, trials are structured by judges to keep
irrelevant, redundant, and unimportant issues out of the process in
order to maximize the value of the resources available to decide
disputes and in order to advance the likelihood that truth will
determine outcomes. See FRE 403.
Moreover, experience often allows lawmakers to identify “noisy”
evidence: evidence whose probative value is generally too expensive
to examine and determine. Such evidence—hearsay or a defendant's
criminal record, for example, —may occasionally be probative, but in
the majority of the cases factfinders would not be able to use it
efficiently as a basis for decision. Setting up rules that suppress such
evidence across the board thus eliminates many factfinding
procedures and deliberations that are more expensive than
productive. See Alex Stein, Inefficient Evidence, 66 Ala. L. Rev. 423
(2015). Such categorical exclusionary rules also eliminate errors that
factfinders' improper reliance on “noisy” evidence would otherwise
engender. This twin benefit offsets the social cost of the errors that
factfinders commit due to their inability to use “noisy” evidence.
Exclusion of “noisy” evidence thus promotes a fundamental economic
objective of the legal system: It reduces the cost of errors and the
cost of error-avoidance as a total sum. See Richard A. Posner, An
Economic Approach to the Law of Evidence, 51 Stan. L. Rev. 1477,
1522–1530 (1999).

126

(2) Allocation of Errors. Allowing errors in factfinding to affect

adjudicative decisions randomly may be unfair. Some adjudicative
errors (e.g., conviction of an innocent defendant) are more harmful
than others (e.g., acquittal of a guilty defendant). For that reason,
lawmakers will do well to set up evidentiary rules that decrease the
risk of error for one party (a criminal defendant) while increasing it for
that party's adversary (the prosecution). But even when the stakes
are symmetrical—as normally is the case in civil litigation—
randomizing errors may not be a good policy because of the potential
inequality in the parties' exposure to the risk of error. For example,
when one party brings evidence that supports its case, but the
evidence is not open to examination by the party's opponent,
admitting such evidence (an out-of-court statement, for example)
would create inequality in the allocation of the risk of error. The
proponent of the evidence would reduce its exposure to the risk of
error, while its opponent would face an increased prospect of losing
the case undeservedly. Arguably, to avoid this result, lawmakers
should devise evidentiary rules that equalize parties' exposure to the
risk of error. See Alex Stein, Foundations of Evidence Law 118–140
(2005).
(3) Policy. Various policies extraneous to the system of litigation
itself are affected by litigation. Consider two general examples. First,
compelling witnesses to testify about certain kinds of communications
they have had can have a destructive effect on human relationships,
both professional and personal. Maintaining the privacy of these
relationships are equally or more important than accurate
adjudication, and thus litigation is structured to protect them through
the provision of various privileges—such as attorney-client,
psychotherapist-patient, or husband-wife—that exempt certain
individuals from testifying in certain circumstances. See Article V of
the Federal Rules of Evidence.
The second general example of extraneous policy considerations
has to do with encouraging kinds of socially useful activity other those
arising out of confidential communications. Suppose an accident
occurs at a bridge, and the owner of the bridge does some repair to
the bridge that reduces the probability of a similar accident occurring.
The act of repair may indicate that the bridge was dangerous and
thus be evidence of negligence on the owner's part. Admitting
evidence of the act of repair at trial to prove negligence will create
disincentives for future bridge owners to repair their bridges. In order
to encourage the reduction of social risk, after-the-fact repairs are
excluded at trial. See FRE 407. There are many similar examples.
See FRE 408-410.
(4) Accuracy. Another argument for regulating the proof process is
to help jurors avoid reaching erroneous results. Frederick Schauer,
On the Supposed Jury-Dependence of Evidence Law, 155 U. Pa. L.
Rev. 165, 199–202 (2006). One reason for the hearsay rule (Article 8
of the Federal Rules) is the belief that jurors cannot accurately
appraise hearsay evidence. FRE 403 allows judges to keep “unfairly
prejudicial” evidence from the jury, on the ground that admitting it
risks leading jurors away from rationality. This argument,
paradoxically, calls into question the very institution of jury
decisionmaking. The argument is in essence that the proof process
must be controlled in order to keep distracting, prejudicial, and
difficult-to-appraise material away from the jury, because such
material will lead the jurors to substitute emotion or caprice for
rationality, thus increasing the risk of wrong results. Consider

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in the next section how the trial process both accommodates and
attempts to modify how the law assumes jurors will reason and
behave.
(5) Fairness. Rules regulating admission and exclusion of evidence
can also be justified for their tendency to promote fairness to the
parties. One aspect of fairness relates to the system's goal of
achieving factually accurate results. Rule 403, which allows the trial
judge to exclude evidence that may cause “unfair prejudice” to the
objecting party, is an obvious example of such a fairness-based rule.
Rules restricting evidence of a party's “character” or his conduct
before or after the relevant events in the case (see FRE 404) are
designed, in part, to prevent juries from punishing parties for matters
other than their specifically alleged wrongdoing. Another value related
to fairness is that the system regards participants as fully
autonomous individuals whose choices control many aspects of the
proceedings, such as the responsibility to prepare and present their
own case and to object to improper evidence from the opponent (see
FRE 103). Finally, burdening the proponent with the obligation of
presenting its own evidence with a foundation that aids the jury's
decisionmaking (authenticating exhibits under FRE 901 and
presenting original documents under FRE 1002) can be seen as
preventing the proponent from overwhelming the opponent with unfair
evidentiary burdens.

3. Natural Reasoning and the Trial Process

As we previously indicated, the trial must look somewhat strange
from the point of view of the jurors. Jurors typically sit passively
through disjointed presentations of evidence, although there are now
some experiments being done with allowing jurors to ask questions
during the presentation of evidence that suggest jury questions may
promote juror understanding of the facts and issues, and alleviate
doubts about the trial
evidence. Steven D. Penrod & Larry Heuer, Tweaking
Commonsense: Assessing Aids to Jury Decision Making, 3 Psychol.
Pub. Poly. & L. 259 (1997); see also Franklin Strier, The Road to
Reform: Judges on Juries and Attorneys, 30 Loy. L.A. L. Rev. 1249
(1997). Particularly because of the passivity of jurors, the judge's
initial instructions to the jury and the parties' opening statements are
crucial—they are the only sources of information that will create a
context for the jury. Only after the close of the evidence does the
judge typically give full instructions on the law, as occurred in
Johnson. Often the instructions are not clear, although the ones in
Johnson are for the most part fairly clear. Consider, though, the
instruction on reasonable doubt, on page 71, supra:
Reasonable doubt is defined as follows. It is not a mere possible doubt because
everything relating to human affairs and depending on moral evidence is open to some
possible or imaginary doubt. It is that state of the case, which after the entire
comparison and consideration of all the evidence, leaves the mind of the jurors in that
condition that they cannot say that they feel an abiding conviction or a moral certainty of
the truth of the charge.
How helpful is that? Can it be made any clearer? This instruction is
somewhat vague because the idea lying behind it is somewhat
vague. In many cases, however, the instructions are vague because
they are filled with incomprehensible legalese that

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simply leaves the jury baffled. The lack of helpfulness of many jury
instructions, and the resultant lack of comprehension of them, is
scandalous in a system dedicated to both lay decision makers and
rationality. Again, though, can you think of any reason why such a
scandal continues to persist? Jury instructions are not just the means
by which jurors are controlled by trial judges. They are also one of the
important means by which appellate judges control trial judges. Jury
instructions embody the substantive law that the trial judge applies to
the trial, and appellate courts review jury instructions nondeferentially.
Moreover, in contrast to evidentiary errors, instructional errors are
almost never deemed “harmless” by appellate courts. What might be
the implications of that point? In any event, you should ask yourself
whether this ordering of events makes sense, and whether the jury
should be better informed by the trial judge at an earlier time in the
process.
Professor Phoebe Ellsworth has spent considerable time studying
the deliberative process of jurors. Her work confirms prior work and
anecdotal experience that, notwithstanding the difficulties, juries are
quite good at factfinding. Her work also confirms earlier findings that
jurors are less adept at dealing with the legal issues in cases. She
recently summarized her findings in a way that vividly captures the
difficulty of being a juror:
There is no reason to believe that the jurors' misunderstanding of the law is a function of
their mental capacities. It seems more plausible that the system is set up to promote
misunderstanding. Factors blockading the serious jury trying to perform its task include:
the convoluted, technical language; the dry and abstract presentation of the law
following the vivid, concrete, and often lengthy presentation of evidence; the
requirements that jurors interpret the evidence before they know what the verdict
choices are; the fact that juries usually do not get copies of the instructions to take with
them into the jury room; the lack of training in the law for jurors as part of their jury duty;
the general failure to discover and correct jurors' preconceptions about the law; the
failure to inform jurors that they are allowed to ask for help with the instructions; and the
fact that those who do ask for help are often disappointed by a simple repetition of the
 incomprehensible paragraph. [Phoebe Ellsworth, Are 12 Heads Better Than 1?, 38 Law
Quadrangle Notes 56, 64 (1995).]
The jurors' task involves finding facts and applying the law to those
facts. We say we want the hallmark of trials to be rational
deliberation, which includes accurate factfinding and an adequate
understanding of the law, yet the structure of trials is somewhat,
perhaps significantly, at odds with effective learning on the part of
jurors. Why might that be so? How would power shift at trials if they
were structured otherwise? Is much of what you have seen designed
to keep control of a trial in the hands of the lawyers? The trial judge?
Is that sensible?
We have so far concentrated on the manner in which jurors learn
about the litigated events. After the presentation of evidence and
closing argument of counsel, juries retire to deliberate and reach a
verdict. The law's reach extends to this aspect of the process as well.
Because certainty is never possible to achieve at trial, jurors are
instructed as to the proper decision rule to apply in the face of the
inevitable uncertainty with which they will have to grapple. This
comes in the form of an instruction on burdens of persuasion. In civil
cases, the normal burden of persuasion is proof by a

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preponderance of the evidence; in criminal cases it is proof beyond

reasonable doubt. Jurors are told that the relevant burden of
persuasion is to be applied to “every element” of the cause of action.
These matters are discussed in detail in Chapter Eleven.
Coupling the burden of persuasion to “every element” seems
unproblematic on its face, but there is a problem lurking in the
shadows. This coupling recommends an unnatural decisionmaking
process to jurors. If followed literally, jurors would be obligated to
analyze the various combinations and permutations of elements,
applying the appropriate burden of persuasion as they go. There are
two difficulties. First, this procedure would quickly get impossibly
complicated; second, people do not typically reason about
conventional, everyday affairs in this fashion. The chart below shows
how complicated and unconventional the recommended
decisionmaking process is. Compiled by Professors Nancy
Pennington and Reed Hastie, the chart on the following page displays
the jury instructions for a relatively simple homicide case involving a
defense of self-defense.
Had you come across something like this chart in a book on
chemical analysis or medical diagnosis, it perhaps would not have
appeared strange; but as a protocol for juror decisionmaking, it
appears completely out of place. The chart, and the instructions it
implements, implies that the focus at trial is on the discrete issues
identified as “elements”; but as we have already commented, the
jurors are not fully informed of those elements until just prior to
retiring to deliberate. In the Johnson case, for example, battery was
not defined until the court's closing instructions. The focus at trial is
thus not on whether some formal element is true or false; it is on
competing versions of reality—in the Johnson case, who started the
fight and why? Even the lawyers in Johnson more or less ignore the
elements in their closing arguments, focusing again on the two
competing versions of reality. To be sure, the competing versions of
reality involve differing elements. And once the jury has settled on
“what happened,” it must consult the judge's instructions to determine
who wins, which is precisely the finding that emerges from the
empirical work of Nancy Pennington and Reed Hastie.
That the process of deliberation involves mediating among the
conflicting versions of what happened rather than a minute parsing of
the individual elements of the causes of action is supported by
another consideration. Any decisionmaking methodology to which a
chart like the one below could be applied would have to involve
issues with relatively clear answers. Chemical analysis provides a
good example.
Litmus paper turns blue or red when immersed in an acid or an
alkaline solution; a solvent does or does not dissolve a substance.
Trials rarely involve questions that can be answered so unequivocally.
At the end of the day, the jury in the Johnson case will have to decide
who started the fight and why, but in doing so the jurors will have to
sift through a lot of ambiguous and conflicting testimony.
 That the intellectual task at trial involves organizing the proffered
evidence in light of competing versions of the plausible is
unavoidable, given the structure of trials. Cases possess ambiguity
because of the need to organize large amounts of data (evidentiary
complexity), to resolve conflicting and inconsistent testimony
(evidentiary tension), and to fill in intermediate premises unsupported
by evidence presented at trial (evidentiary gap). The presentation of
information at trial quite obviously must be incomplete in the typical
case (neither Officer Huston nor Officer Van Berg could

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say how they received their injuries) and often inconsistent

information will be presented (eyewitness testimony about Officer
Walker's conduct differed considerably). Witnesses testify only to
what they have observed, and rarely will one witness observe
everything relevant to any particular litigated issue.
 Even in a case with a single witness, what is observed must be
richer than what is related, if for no other reason than that memory
decays with time. In addition, rhetorical skills invariably are less
developed than observational skills. Consider a simple example—a
case involving assault where part of the proof is testimony that the
defendant made “threatening” gestures toward the plaintiff. Testimony
characterizing seemingly simple gestures is often a summary of richly
textured human acts that may be observed with ease but related only
with difficulty, which is precisely why lay opinions such as this are
often allowed. To understand such testimony, the juror must
reconstruct this richly textured event. And of course in doing so, the
juror may have to account for testimony to the effect that the gesture
was not made in a threatening way. As case complexity increases, it
is implausible that a juror merely continues to add data to the data
banks rather than organizing and simplifying the data, which

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after all is how individuals apparently cope with the complexity of

everyday life. One remembers a trip to the store yesterday rather
than walking to the garage, opening the door, entering the garage,
opening the car door, searching for the proper key, identifying the
ignition, and so on.
There is another interesting aspect of jury decisionmaking that is
highlighted by the chart. The chart suggests an orderly, deductive
approach to decisionmaking: Lay out the assumptions and deduce
the correct results. At some point, jurors will indeed “deduce” their
verdict in such a fashion, but probably only after all the hard work is
done. The hard work involves figuring out what happened. In that
effort, deduction, the law's prize tool in virtually all other areas, takes
a backseat to induction. Consider again the closing arguments in the
Johnson case. Neither side attempted to lay out a formal proof of guilt
or innocence; instead, they used the testimony to stitch together a
story that, they hoped, would seem plausible to the jurors, given their
(the jurors') general knowledge and experience.

4. The Behavior of Factfinders

The advocates at trial attempt to persuade the factfinder by
advancing plausible accounts of what happened, but what seems
“plausible” to a person is determined by the sum of that person's
knowledge and experience rather than by the outcome of formal
logical manipulations. That this is so is evident from your own
experience. Reflect for a moment on how you appraise the things that
you see. You look for patterns in them, searching for common
threads, especially ones that tie what you are observing to what you
have previously observed, although always holding yourself open to
the twin possibilities that something is unique in the event under
observation or that you made a mistake previously in what you came
to believe. You engage in various kinds of analogical reasoning, some
involving cause and effect, some filling in unobserved aspects of what
you are observing by reference to what you have come to believe is
commonly associated with what you presently are viewing; you rely
on generalizations formed out of prior experience, and so on. These
are the tools that humans use to understand, navigate, and
manipulate their environment, and not surprisingly they are the tools
that jurors use to resolve the disputes of historical fact before them.
At the end of the day, when a consensus has emerged out of bringing
the combined experience of the jurors to bear on the evidence
presented at trial, the jurors look to the verdict options to determine
who wins and loses. And probably on occasion when they do so and
see the implications of their positions, they reconsider. To this extent
there is a relationship between the largely (but not exclusively)
inductive processes that drive evidence comprehension and
deliberation and the virtually exclusively deductive process that drives
verdict selection.
The instructions on elements, in short, merely provide the verdict
options. By contrast, few instructions are given on how to reason or
deliberate, because jurors, as competent members of their
community, are assumed to know how to do both, an assumption that
is surely correct. Judges do typically give one instruction about jury
reasoning, the one given in the Johnson case—“use your common
sense.” If more

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elaborate instructions are necessary, the argument becomes one

for deciding cases in some other way.
One last point. At the beginning of the Johnson transcript, the judge
instructed the jury on what “evidence” is. Think about the nature of
“evidence”: What exactly, is it? Before reading these pages, you most
likely would have thought it a dumb question—“evidence,” obviously,
is the testimony and exhibits at trial. Is that now so obvious? The
testimony and exhibits at trial are meaningless until interpreted by a
human observer—judge or juror. Moreover, the interpretation given to
any piece of evidence cannot be determined in advance, for it is a
function of the background and experience of the factfinder. If
“evidence” is what is presented at trial, how can it be that one
factfinder thinks the “evidence” proves guilt and another innocence?
Does everyone in this class agree that defendant Johnson was guilty
of a battery, or do some believe he should have been acquitted? The
point we want you to think about, though, is the dynamic nature of
trials and “evidence.” There is a relational aspect to “evidence”; it (the
evidence) is what some human being thinks it is, and what that
person thinks it is cannot be determined in advance by a set of rules.
If it could, factfinding perhaps could make the transformation from
being largely inductive to largely deductive; but if it could, jurors (and
judges) would become superfluous. Another way of looking at this is
that historical factfinding requires judgment in addition to logic—not in
contrast to logic, but in addition to it.
The necessary reliance on judgment is one of the distinguishing
features of peculiarly human institutions, which the law of evidence
surely is for all of its pretense to analytical rigor. These are matters
we would encourage you to reflect on as you proceed throughout the
course. Nor are they just matters of academic interest. You are about
to turn the page to begin your study of the concept of relevancy. Right
at the heart of that concept lie many of the issues we have been
addressing here.

1. The judge in Johnson instructed the jury that “[e]vidence consists of testimony of
witnesses, writings, material objects, or anything presented to the senses and offered to
prove the existence or non-existence of a fact.” Page 69, supra.
2. “Voir” is pronounced “vwahr” and “dire” is usually pronounced “deer,” although the
prevailing pronunciation in the South is “dire” (as in “dire straits”). The term voir dire applies
not only to jurors in jury selection, but also to trial witnesses, when the latter are asked
questions outside the presence of the jury in order to determine whether some aspect of their
testimony will be admitted into evidence in front of the jury.
3. Two important devices make it unnecessary, in many instances, to prove facts through
testimony or other evidence at trial: These are known as “stipulation” (facts agreed by the
parties) and “judicial notice” (see Fed. R. Evid. 201, discussed in Chapter Eleven).
 4. John W. Strong, et al., McCormick on Evidence 34 (5th ed. 1999). Wigmore suggested
that the “abuses and puerilities often found associated with cross-examination” were
outweighed by its value. “It may be that in more than one sense it takes the place in our
system which torture occupied in the mediaeval system. . . . Nevertheless, it is beyond any
doubt the greatest legal engine ever invented for the discovery of truth.” 2 John Henry
Wigmore, A Treatise on the System of Evidence in Trials at Common Law 1697 (1904). The
latter phrase is oft-repeated. See, e.g., California v. Green, 399 U.S. 149, 158 (1970).
5. An arguable “source” of authority to rule on objections as to form is FRE 611(a), which
directs the trial judge to “exercise reasonable control over the mode and order of
interrogating witnesses and presenting evidence[.]” Courts rarely cite FRE 611(a) for these or
other purposes, however. In fact the rule adds little, if anything, to what is explicit or implicit in
other rules. For example, FRE 403 provides authority to exclude cumulative evidence, and
FRE 102 admonishes courts to construe the rules “to secure fairness in administration,
elimination of unjustifiable expense and delay, and promotion of growth and development of
the law of evidence to the end that the truth may be ascertained and proceedings justly
determined.”
133

CHAPTER THREE
RELEVANCE, PROBATIVE VALUE,
AND THE RULE 403 DANGERS
Relevance is the foundational principle for all modern systems of
evidence law. Only relevant evidence helps the jury achieve rational
outcomes based on the jurors' use of their reasoning capacities. The
basic tenets of this principle were spelled out more than a century
ago by James Bradley Thayer:
There is a principle—not so much a rule of evidence as a presupposition involved in the
very conception of a rational system of evidence . . . which forbids receiving anything
irrelevant, not logically probative. How are we to know what these forbidden things are?
Not by any rule of law. The law furnishes no test of relevancy. For this, it tacitly refers to
logic and general experience—assuming that the principles of reasoning are known to
its judges and ministers, just as a vast multitude of other things are assumed as already
sufficiently known to them.
There is another precept which should be laid down as preliminary, in stating the law
of evidence; namely, that unless excluded by some rule or principle or law, all that is
logically probative is admissible. This general admissibility, however, of what is logically
probative is not, like the former principle, a necessary presupposition in a rational
system of evidence; there are many exceptions to it. Yet, in order to [have] a clear
conception of the law, it is important to notice this also as being a fundamental
proposition. In an historical sense it has not been the fundamental thing, to which
different exclusions were exceptions. What has taken place, in fact, is the shutting out by
the judges of one and another thing from time to time; and so, gradually, the recognition
of this exclusion under a rule. These rules of exclusion have had their exceptions; and
so the law has come into the shape of a set of primary rules of exclusion; and then a set
of exceptions to these rules. . . .
In stating thus our two large, fundamental conceptions, we must not fall into the error
of supposing that relevancy, logical connection, real or supposed, is the only test of
admissibility; for so we should drop out of sight the chief part of the law of evidence.
When we have said (1) that, without any exception, nothing which is not, or is not
supposed to be, logically relevant is admissible; and (2) that, subject to many exceptions
and qualifications, whatever is logically relevant is admissible; it is obvious that, in
reality, there are tests of admissibility other than logical relevancy. Some things are
rejected as being of too slight a significance, or as having too conjectural
134
and remote a connection; others, as being dangerous, in their effect on the jury, and
likely to be misused or overestimated by that body; others, as being impolitic, or unsafe
on public grounds; others, on the bare ground of precedent. It is this sort of thing, as I
said before—the rejection on one or another practical ground, of what is really probative
—which is the characteristic thing in the law of evidence; stamping it as the child of the
jury system. [James Bradley Thayer, A Preliminary Treatise on Evidence at the Common
Law 264-266 (1898).]

Thayer's analysis provides two fundamental ideas that are important

to keep in mind when analyzing evidentiary issues. First, whether
evidence is relevant or not will depend primarily on the
“commonsense” reasoning of judges and juries (and sometimes on
the reasoning of expert witnesses) and not on legal rules. This is
what Thayer meant by, “[t]he law furnishes no test of relevancy,”
relying instead on “logic and general experience.” Second, relevance
is necessary but not sufficient for evidence to be admissible. In other
words, many rules exclude evidence even though the evidence is, in
fact, relevant. We discuss one such rule, FRE 403, in section B.

A. RELEVANCE—THE BASIC CONCEPT

The discussion of relevance under the Federal Rules of Evidence that

follows is the foundation for your study of evidence law. It provides
you with analytic tools to develop, articulate, and defend your own
theories of why evidence is relevant in any factual dispute. This
analysis is fundamental to the understanding of relevance that you
must have as the proponent, opponent, or judge of the admissibility of
evidence. And you will soon see that the application of all rules of
evidence flows from the initial question: Why is the evidence
relevant?

1. FRE 401 and 402

RULE 401. TEST FOR RELEVANT EVIDENCE
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.
 RULE 402. GENERAL ADMISSIBILITY OF RELEVANT EVIDENCE
Relevant evidence is admissible unless any of the following provides otherwise:

the United States Constitution;

a federal statute;
these rules; or
other rules prescribed by the Supreme Court.

Irrelevant evidence is not admissible.

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2. Explanation of FRE 401 and 402

In deciding whether an item of evidence is relevant under FRE 401, a
judge must consider two issues: (1) Is the item offered to prove a fact
that “is of consequence” to the case? (2) Could a reasonable jury
think that the item has a tendency to make that fact of consequence
more (or less) probable? The common law perceived these two
issues as two separate concepts—materiality (meaning the
connection to a fact of consequence in the case) and relevance
(meaning that the connection was logically probative). While the term
“materiality” is not used in the Federal Rules, it is still common
parlance among judges and lawyers and you should be familiar with
it. If a proper objection is made, judges will exclude all evidence that
is not relevant, under FRE 401 and 402.
a. Relevant Evidence Is Offered to Prove a Fact of Consequence
In general, a proposition of fact is “of consequence” (i.e., material)
in a legal dispute if it matters to the legal resolution of that dispute. A
fact matters to the legal resolution of a dispute if it is one that a jury
(or a judge in a bench trial) could rationally use in determining the
existence of guilt or liability. In order to determine which facts are of
consequence in a particular legal dispute, one must look to the
offering party's “theory of the case” (or what that party is arguing at
trial) and the elements that comprise the substantive law (the crime,
civil cause of action, or affirmative defense at issue). The essential
elements are defined by the applicable criminal or civil law, and they
are the facts that the party with the burden of proof must prove at
trial. This inferential reasoning process from evidence to facts of
consequence can be illustrated with a simple diagram:

The “evidence” refers to the witness testimony and exhibits presented

in the courtroom. The FOC is a proposition of fact the jury can decide
to believe, on the basis of drawing an inference from the evidence.
The arrow represents an inference the jury can make. To be “of
consequence” the inferred fact must either (1) itself be an essential
element or (2) be one that a jury could rationally use in determining
whether an essential element is more or less probable through one or
more further inferences.
For an example of how a fact of consequence may require a further
inference to connect to an essential element, consider the following:

136

The evidence is a witness's testimony that she saw the defendant

holding a knife over the victim. From this testimony, the jury may infer
that the defendant did in fact stab the victim. This act by the
defendant is a fact of consequence because from it the jury may infer
the identity of the person who caused the victim's death, which is a
fact of consequence because it is an essential element in the law of
homicide.
 The substantive law determines the essential elements in every
case. In the Johnson case, for example, the essential elements of the
crime with which Johnson was charged were (1) the unlawful use of
force or violence (2) by a person incarcerated in state prison (3)
against a person not incarcerated. The prosecution presented
testimony from several eyewitnesses that Johnson was kicking and
struggling with the correctional officers both inside and outside his
cell. This testimony was relevant to prove that Johnson used force
and violence, as required by the first essential element listed above.
Now consider the defense attorney's question to inmate Butler
concerning the frequency with which prisoners at Pelican Bay are
allowed to receive packages from home (page 48, line 1, supra).
Does this information tend to prove a fact of consequence in the
Johnson case? Can you identify any connection between it and one
of the essential elements? If you cannot, then the information may be
irrelevant—“immaterial,” in common law parlance—and would be
excluded under FRE 401 and 402.
The relevance of some evidence requires several inferences to
rationally connect it to an essential element. For example, the
prosecution offered testimony that Officer Huston suffered a gash on
his left shin (page 16, line 44, supra). The following diagram shows
how this testimony can be used to prove that Johnson used force and
violence against Huston, as required by the first and third essential
elements in the Johnson case:

The first inference is that Huston's testimony is true—he did have the
gash after the struggle with Johnson. From this inferred fact, the facts
of consequence, including the essential element, can be identified.
 Sometimes longer chains of reasoning are required. For example,
inmate Butler testified that the correctional officers were wearing their
gloves when they approached Johnson's cell (page 48, line 24,
supra). This testimony connects to the defense theory that the guards
started the fight with Johnson. The fact that a guard was wearing
gloves generates the inference that the guard was prepared to have
contact with an inmate, not just collect a food tray; and if the guard
was prepared to have contact, then he intended to fight; and if he
intended to fight, then he started the fight; and if a guard started the
fight, then Johnson's use of force was self-defense and not unlawful.
This chain of inferences is shown in Diagram 3-4.

137

Each arrow represents an inference in the chain starting from the

evidence, leading to a series of facts of consequence, including an
essential element in the case. Whether the chain of reasoning is long
or short, what is important to remember is that the facts of
consequence in a case cannot be determined without knowing the
essential elements of the substantive law that governs the dispute.
b. Relevant Evidence Must Make a Fact of Consequence More Probable or Less
Probable
 Once the proponent identifies the fact of consequence, the
proponent must also be prepared to show how the evidence makes
the fact of consequence more probable or less probable than if the
evidence were not presented. The phrase “more or less prob-able”
means that evidence is relevant if it is capable of having any rational
effect at all on the jury's perception of a fact of consequence. The
evidence might make that fact slightly more believable (more
probable) or it might make that fact slightly less believable (less
probable). In either case, it is relevant. Only when the evidence is not
capable of having any rational effect in either direction is it irrelevant.
FRE 401's Minimal Standard of “Any Tendency.” FRE 401
defines relevant evidence as having “any tendency” to make the
existence of a fact of consequence more or less probable. This is a
minimal test of logically probable inferences from the offered item to a
fact of consequence. For example, in determining the relevance of
inmate Butler's testimony in the Johnson case that the guards wore
gloves, it need only be the case that “guards who wear gloves are at
least slightly more likely to have anticipated contact with inmates than
if they were not wearing gloves.” The judge will find evidence relevant
if a reasonable jury could think that it makes a fact of consequence
even slightly more or less likely than it would be were the evidence
not known.
If and only if the probability . . . is the same with and without the evidence, the evidence
is irrelevant. . . . If these probabilities are different, the evidence is relevant. It seems to
be recognized on all sides that the size of the change is of no importance in determining
relevancy . . . . [T]here are no degrees of relevancy. . . . [T]he term relevant refers to the
distinction between some probative force and no probative force . . . between some
change in probability and no change. [Vaughn C. Ball, The Myth of Conditional
Relevancy, 14 Ga. L. Rev. 435, 446 (1980).]

138

But in a specific instance, how does the proponent of evidence

articulate why it makes a fact of consequence more or less probable?
And if the opponent objects, how does the judge decide whether FRE
401 is satisfied? The answer to these questions requires an
understanding that reasoning from evidence to a fact of consequence
requires the use of generalized knowledge and experience.
Inferential Reasoning Is Based on Generalizations from
Knowledge and Experience. Inferential reasoning requires
generalized knowledge and experience, as well as the various
intellectual tools discussed on pages 127-32 of Chapter Two,
to reason from evidence to facts of consequence. We all have a well-
developed body of generalized knowledge that we use in our
inferential reasoning:
All of us . . . have accumulated vast storehouses of commonly held notions about how
people and objects generally behave in our society. From this storehouse one
formulates a generalization about typical behavior. The generalization, in turn, becomes
the premise which enables me to link specific evidence with an element one hopes to
prove. [David A. Binder & Paul Bergman, Fact Investigation 85 (1984).]
The Advisory Committee Note to FRE 402 calls these generalizations
“principles evolved by experience or science, applied logically to the
situation at hand.”
To test whether evidence is logically probative of a specific fact of
consequence, the judge examines the generalizations underlying
each inference in the proponent's proposed chain of reasoning. For
example, the inferential leap from “the guards wore gloves” to “the
guards were prepared to fight” requires a generalization about the
behavior of prison guards. Such a generalization might be articulated
as follows: “Guards probably don't wear gloves to pick up food trays,
but they would be likely to wear gloves when they prepare to come
into contact with inmates.” What do you think of this generalization?
Does it support the necessary inference? Does it make the inferred
fact more probable? Because such generalizations are only rough
estimates of human behavior (and other kinds of occurrences), they
cannot establish with certainty that an inference is true. Nevertheless,
the generalizations operate logically as part of a syllogistic reasoning
process: from major premise (the generalization) and minor premise
(the evidence) to the conclusion (the inference to be drawn). This
form of reasoning, based on generalizations from knowledge and
experience, can also be diagramed:
139

Relevance Requires Reasonable Generalizations. Judges will

admit evidence as making a fact of consequence more probable or
less probable when the generalizations from common knowledge and
experience are reasonable. Phrased another way, the test of
relevance is “whether a reasonable person might believe the
probability of the truth of the consequential fact to be different if that
person knew of the proffered evidence.” (2 Jack B. Weinstein &
Margaret A. Berger, Weinstein's Federal Evidence §401.04[2](b)
(Joseph M. McLaughlin, ed., Matthew Bender 2d ed. 2001)).
The judge thus evaluates the reasonableness of the underlying
generalizations from the perspective of a reasonable juror. When
relevance is disputed, the offering party must be prepared to explain
and justify the underlying generalization for the judge.
Generalizations Can Be the Subject of Proof. What if the
opponent objects that a generalization necessary to an item's
relevance is either unknown to the jury or unreasonable, and the
judge also has the same doubts? In such a case, the judge can
require the proponent of the evidence to produce evidence for the
generalization itself. In the Johnson case, for example, the judge
might ask: “How would the jury know that guards wear gloves to
prepare for contact with inmates?” The judge could require the
defense to produce testimony about glove-wearing practices in
Facility B at Pelican Bay. This evidence would then become part of
the chain of reasoning:

A proponent will have to present proof of an underlying generalization

if the judge requires it. Of course, the proponent may also offer such
proof simply to persuade the jury that the generalization has
particularly strong probative force.
Limits on Reasonable Generalizations. There are many types of
generalized knowledge, all of which may be involved in factual
adjudication:
Generalizations range over a broad spectrum. At one end are scientific laws . . . well-
founded scientific opinions . . . and widely shared conclusions based upon common
experience (for instance, everyone knows that a driver must stop at a red light). In the
middle are commonly held, but unproven or unprovable beliefs (for instance, fleeing the
scene of a crime is evidence of a guilty conscience). At the other end are biases or
prejudices that may be strongly held irrespective of available data . . . and less strongly
held but still operative beliefs (for instance, men's fixed designs are probably carried
out). [Terence Anderson & William Twining, Analysis of Evidence 68 (1991).]

140

Judges do not require objective proof of most generalizations that

sound reasonable. To do so would be impractical because many
aspects of common knowledge have not been validated by rigorous
empirical study. Trials would grind to a halt if litigants
had to offer formal proof of every generalization about human
behavior and the physical world. Nevertheless, there are two limits
implicit in the “reasonable juror” test: The necessary generalizations
cannot be known to the judge to be false (“people can see through
brick walls”)1 and they cannot be unduly speculative (“people with red
hair seem to be more aggressive than people with black hair”).2 A
relevance theory based on such generalizations should be rejected.
Some generalizations express invidious stereotypes based on factors
such as gender, race, ethnicity, religion, age, and sexual preference.
Once articulated, many such generalizations probably fall within the
“false” or “guesswork” categories of unacceptability, or lack any
connection to the individual case. Jinro America Inc. v. Secure
Investments, Inc., 2001 U.S. App. LEXIS 25987, at *37 (9th Cir. 2001)
(majority held syllogism “(a) Korean businesses are generally corrupt;
(b) Jinro is a Korean business; (c) therefore, Jinro is corrupt” to be
impermissible under FRE 403; concurrence held that generalizations
about Korean businesses were irrelevant to prove Jinro's conduct). Of
course, stereotypes and biases may also surface during confidential
jury deliberations if the background facts necessary to trigger them
are available. Some of these problematic stereotypes have been
identified and addressed in the Federal Rules. For example, FRE 610
prohibits evidence of religious beliefs or opinions on the question of
credibility, and FRE 412 limits the use of evidence of a victim's sexual
behavior or predisposition in cases involving allegations of sexual
misconduct. It is also assumed that a diverse jury will express a
range of views during deliberation and will correct for such
stereotypes.
Judges Do Not Assess the Evidence Themselves. In
determining whether there is a reasonable connection between
evidence and a fact of consequence, judges do not assess whether
they themselves believe the evidence. When the evidence is a
witness's testimony, the judge does not assess whether the witness is
credible. When the evidence is an exhibit, the judge does not assess
whether the exhibit is genuine. Rather, for relevance determinations,
the judge will assume the jury finds the witness to be credible or the
exhibit is genuine and then will examine whether there is a
reasonable connection to the fact of consequence. The foundational
admissibility requirements for testimony and exhibits are discussed in
Chapter Four.
The Policy of FRE 401 Favors Admissibility. The minimal test of
relevance serves one of the most important goals of the Federal
Rules of Evidence: to promote rational decisionmaking by providing
the jury with as much relevant information as possible (subject to the
rules that exclude otherwise relevant evidence). FRE 401

141

fosters this goal by preventing the judge's own beliefs about the
significance of the evidence to distort the flow of information that a
reasonable jury may consider to be relevant. By contrast, suppose
that a judge could reject a proponent's generalization based on the
judge's own assessment of the generalization's plausibility. For
example, a judge might think: “I just don't believe that guards wear
gloves in anticipation of contact with inmates. I think that guards wear
gloves to keep their hands clean.” Excluding evidence that the guards
wore gloves, based on the judge's own beliefs about the evidence
and its underlying generalization, would prevent the jury from hearing
this evidence, which it might reasonably consider to be relevant for
determining who started the fight.
This raises the question of how certain the trial judge has to be that
the evidence has the minimal relevant connection to the case. The
minimal test of relevance established in FRE 401 suggests that the
judge should find evidence to be relevant if the judge believes there is
any probability that the relevant connection exists. Thus, even if there
are alternative explanations of the glove-wearing practices of guards
at Pelican Bay, if the proponent's underlying generalizations are
reasonable, the evidence is relevant. For a synopsis of the
philosophical, academic, and legal debates underlying “the strong
federal policy favoring admissibility of, and reliance on, all helpful
information . . . ,” see District Judge Jack B. Weinstein's opinion in
United States v. Shonubi, 895 F. Supp. 460, 492 (E.D.N.Y. 1995), 103
F.3d 1085 (2d Cir. 1997) (sentence vacated).
 After a judge admits evidence under the minimal test of FRE 401, it
ultimately will be up to the jury to determine the relevance and
significance of the evidence. Even if a judge admits evidence over a
relevance objection, the jury may nevertheless reject the evidence as
irrelevant during their deliberations.
c. Relevance Is Not Sufficiency

The question of admissibility under FRE 401 is separate from the

question of whether an item of evidence is sufficient proof of an
essential element. The question of admissibility goes to logical effect,
and “any tendency” under FRE 401 requires only a minimum level of
logical effect. The question of sufficiency refers to the burden of
production discussed in Chapter Two at pages 95-96; that is, whether
a reasonable person could be persuaded by the evidence to the level
demanded by the applicable burden of persuasion. Both burdens will
be discussed further in Chapter Ten. Typically, a party's case will
require many items of evidence to meet the burden of producing
evidence sufficient to support a verdict. As the Advisory Committee
Note to FRE 401 states, quoting McCormick's treatise, “A brick is not
a wall.” The “brick” is each item of relevant evidence; the “wall” is the
totality of evidence meeting a burden of proof.
Moreover, most items of evidence will not trigger just one inference
or just one underlying explanatory generalization. Evidence typically
can be interpreted in several different ways, thus triggering competing
and often contradictory inferences. For example, several competing
explanations have probably already occurred to you as to why the
guards were wearing gloves (if they were) in the Johnson case.
These competing explanations may be made the subject of proof by
the opponent, and may be

142

argued to the jury during closing argument. It is usually for the jury,
in its ultimate deliberations, to choose among them. To be admitted
under FRE 401, an item of evidence is tested from the perspective of
its proponent. The evidence needs only to make a fact of
consequence somewhat more or less likely than it would be were the
evidence not known.
d. Direct versus Circumstantial Evidence

The common law distinguished between two types of relevant

evidence: direct and circumstantial. Direct evidence typically is
defined as evidence that, if believed, establishes an essential
element without any additional intervening inferences. For example, if
the correctional officers had testified in the Johnson case that they
saw Johnson kick Officers Huston and Van Berg, this testimony, if
believed, would have been direct evidence that Johnson committed a
battery. And the testimony of an eyewitness identifying a bank robber,
if believed, would be direct evidence of the element of identity. In both
examples, the fact of consequence is itself identical, or essentially
identical, to the essential element, the difference being the legal
terminology in which the essential element is phrased.
In most cases, however, the connection between an item of
evidence and an essential element is not so immediate and may
require many intervening inferences. This type of evidence is called
“circumstantial.” Suppose a witness testifies that immediately after a
bank was robbed, he saw the defendant (charged with the bank
robbery) running a block away from the bank. This would be viewed
as circumstantial evidence of the defendant's guilt on the ground that
the testimony does not directly establish the essential element of
identity. Additional inferences are necessary to explain the
defendant's conduct in such a way as to connect the defendant to the
robbery—he was attempting to flee to avoid being caught after he
had committed the crime. And because there are numerous other
explanations for the defendant's running, an inference of identity does
not automatically follow.
Nevertheless, direct and circumstantial evidence both require the
jury to use inferential reasoning. Direct evidence establishes an
essential element only if the jury believes the eyewitness, and this
requires inferential reasoning about the eyewitness's ability to
observe the event correctly, to remember it, and to describe it
honestly and accurately. These standard issues of credibility must be
resolved by the factfinder
in order to evaluate any testimonial evidence, and they are the kinds
of issues about which people use natural reasoning constantly in their
everyday lives. Generally speaking, then, what distinguishes
circumstantial from direct evidence is the length of the inferential
chain.
It is important to understand, however, that the labels “direct” and
“circumstantial” do not reflect the evidence's probative force.
Circumstantial evidence can often be more reliable than direct
evidence. A blood spot found on a murder weapon, identified as the
defendant's through DNA testing, is an example of circumstantial
evidence that can be very accurate, and is probably more reliable
than many eyewitnesses, as will be discussed in Chapter Nine.

143

Virtually all litigated cases rely on at least some circumstantial

evidence, and many essential elements (intent, for example) are
typically proved only in this way. Some jurisdictions distinguish
between circumstantial and direct evidence in instructing the jury, as
was done in the Johnson case—that each fact in a chain of
circumstantial evidence necessary to proof of guilt must be proved
beyond a reasonable doubt (page 70, line 4, supra). This instruction
cannot possibly be applied to every intermediate step in a chain of
reasoning, and giving such an instruction is very confusing to the jury.
The ultimate inference of guilt in a criminal case will typically depend
on a number of intermediate steps, each proved by a number of
individual items of evidence. Only rarely will any one such
intermediate fact of consequence, of itself, be necessary to proof of
guilt. As stated by the High Court of Australia:
[I]t may sometimes be necessary or desirable to identify those intermediate facts which
constitute indispensable links in a chain of reasoning towards an inference of guilt. Not
every possible intermediate conclusion of fact will be of that character. If it is appropriate
to identify an intermediate fact as indispensable it may well be appropriate to tell the jury
that that fact must be found beyond reasonable doubt before the ultimate inference can
be drawn. But where . . . the evidence consists of strands in a cable rather than links in
a chain, it will not be appropriate to give such a warning. It should not be given in any
event where it would be unnecessary or confusing to do so. It will generally be sufficient
 to tell the jury that the guilt of the accused must be established beyond reasonable
doubt and, where it is helpful to do so, to tell them that they must entertain such a doubt
where any other inference consistent with innocence is reasonably open on the
evidence. . . .
[T]he prosecution bears the burden of proving all the elements of the crime beyond
reasonable doubt. That means that the essential ingredients of each element must be so
proved. It does not mean that every fact—every piece of evidence—relied upon to prove
an element by inference must itself be proved beyond reasonable doubt. . . .Indeed, the
probative force of a mass of evidence may be cumulative, making it pointless to
consider the degree of probability of each item of evidence separately. [51 A. Crim. R.
181, 184-185 (1990).]

e. Background Information
In most cases, judges admit some testimony that may not seem to
have any obvious connection to any fact of consequence in the case.
Reasonable background information about the witness who is
testifying is “always admissible . . . it allows the jury to make better
informed judgments about the credibility of a witness and the
reliability of that witness' observations.” United States v. McVeigh,
153 F.3d 1166, 1201 (10th Cir. 1998). And when witnesses describe
actions or events, they are often allowed to describe them in some
detail, simply to help the jury relate to and understand what it did not
and cannot see for itself. Inmate Butler's explanation of how inmates
receive packages from home, referred to on page 136, supra, is an
example of such detail. The Latin phrase res gestae—meaning
“things done”—is often used to justify the admission of broader
context to an important incident. Parties also use many kinds of
exhibits that in and of themselves do not tend to prove any fact of
consequence but that are nonetheless part of, or illustrate, the story
to which the jury is listening.

144

The Advisory Committee Note to FRE 401 explicitly approves of the

admission of this kind of contextual evidence, despite its lack of
immediate consequence to the case:
Evidence which is essentially background in nature can scarcely be said to involve
disputed matter, yet it is universally offered and admitted as an aid to understanding.
Charts, photographs, views of real estate, murder weapons, and many other items of
evidence fall in this category.
3. Applications of FRE 401 and 402
Two judicial opinions, rendered over 100 years apart, illustrate the
low threshold of probative connection required by the concept of
relevance.

KNAPP V. STATE3

168 Ind. 153, 79 N.E. 1076 (1907)

The appellant appeals from a judgment in the above-entitled cause,
under which he stands convicted of murder in the first degree. Error is
assigned on the overruling of a motion for new trial.
Appellant, as a witness in his own behalf, offered testimony tending
to show a killing in self-defense. He afterwards testified, presumably
for the purpose of showing that he had reason to fear the deceased,
that before the killing he had heard that the deceased, who was the
marshal of Hagerstown, had clubbed and seriously injured an old
man in arresting him, and that he died a short time afterwards. On
appellant being asked, on cross-examination, who told him this, he
answered: “Some people around Hagerstown there. I can't say as to
who it was now.” The state was permitted, on rebuttal, to prove by a
physician, over the objection and exception of the defense, that the
old man died of senility and alcoholism, and that there were no
bruises or marks on his person. Counsel for appellant contended that
it was error to admit this testimony; that the question was as to
whether he had, in fact, heard the story, and not as to its truth or
falsity. While it is laid down in the books that there must be an open
and visible connection between the fact under inquiry and the
evidence by which it is sought to be established, yet the connection
thus required is in the logical processes only, for to require an actual
connection between the two facts would be to exclude all
presumptive evidence. Within settled rules, the competency of
testimony depends largely upon its tendency to persuade the
judgment. As said by Wharton: “Relevancy is that which conduces to
the proof of a pertinent hypothesis.” 1 Wharton, Ev. §20. In
Stevenson v. Stuart, 11 Pa. 307, it was said: “The competency of a
collateral fact to be used as the basis of legitimate argument is not to
be determined by the conclusiveness of the inferences it may afford
in reference to the litigated fact. It is enough if these

145

may tend in a slight degree to elucidate the inquiry, or to assist,

though remotely, to a determination probably founded in truth.”
We are of opinion that the testimony referred to was competent.
While appellant's counsel are correct in their assertion that the
question was whether appellant had heard a story to the effect that
the deceased had offered serious violence to the old man, yet it does
not follow that the testimony complained of did not tend to negative
the claim of appellant as to what he had heard. One of the first
principles of human nature is the impulse to speak the truth. “This
principle,” says Dr. Reid, whom Professor Greenleaf quotes at length
in his work on Evidence (volume 1 §7n), “has a powerful operation,
even in the greatest of liars; for where they lie once they speak truth
100 times.” Truth speaking preponderating, it follows that to show that
there was no basis in fact for the statement appellant claims to have
heard had a tendency to make it less probable that his testimony on
this point was true. Indeed, since this court has not, in cases where
self-defense is asserted as a justification for homicide, confined the
evidence concerning the deceased to character evidence, we do not
perceive how, without the possibility of a gross perversion of right, the
state could be denied the opportunity to meet in the manner indicated
the evidence of the defendant as to what he had heard, where he,
cunningly perhaps, denies that he can remember who gave him the
information. The fact proved by the state tended to discredit
appellant, since it showed that somewhere between the fact and the
testimony there was a person who was not a truth speaker, and,
appellant being unable to point to his informant, it must at least be
said that the testimony complained of had a tendency to render his
claim as to what he had heard less probable. . . .
Judgment affirmed.
 UNITED STATES V. STEVER

603 F.3d 747 (9th Cir. 2010)

[Defendant Stever appealed his conviction on one count of
conspiracy to manufacture 1,000 or more marijuana plants and one
count of manufacture of marijuana in violation of 21 U.S.C. §841.
Stever sought to defend on the ground that the marijuana growing
operation found on an isolated corner of his mother's 400-acre
property was the work of one of the Mexican drug trafficking
organizations (DTOs) that had recently infiltrated Eastern Oregon.
Stever sought discovery from the government of materials related to
the operations of DTOs in Eastern Oregon, and made proffers of
proof at trial for the following purposes: (1) to rebut the inference that
the owners of the property must have been involved in the marijuana
operation, because Mexican DTOs have grown marijuana by
trespassing on large tracts of public and private land in Eastern
Oregon without the knowledge of the owners; (2) to buttress the
inference that this particular marijuana operation was the work of a
Mexican DTO by demonstrating that operations run by Mexican DTOs
have several distinctive characteristics in common with this operation;
and (3) to show that Mexican DTOs are secretive and familial and so
are unlikely to have involved a local Caucasian in their operations.

146

The government argued that those inferences were not relevant to

Stever's guilt or innocence. The district court agreed. The court
refused to compel discovery and rejected Stever's proffers of proof,
repeatedly insisting that evidence about who else was responsible for
the marijuana operation was not relevant to assessing the likelihood
that Stever was involved. On appeal, the Court of Appeals rejected
both of the district court's rulings on the basis of the following analysis
of relevance.]
The district court's conclusion was illogical. Evidence is relevant if it
has “any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less
probable than it would be without the evidence.” Fed. R. Evid. 401
(emphasis added). The requested evidence, if it existed, tended to
show that a Mexican DTO planted the marijuana. It also tended to
make it more probable that Stever was not involved, as there would
then be an alternative explanation for the grow that would not entail
the consent, much less the participation, of any of the Stevers.
The Government makes several arguments in support of the district
court's ruling. First, the Government argues that evidence must relate
to a particular Mexican DTO to be probative of Stever's innocence.
This argument fails. Evidence that makes it more likely that a
Mexican DTO—any Mexican DTO—was responsible for this
operation makes it less likely that Stever was.
Next, the Government argues that a showing that this grow was the
work of a Mexican DTO would not tend to exonerate Stever, because
Stever could have conspired with the DTO. Although such
cooperation is certainly possible, Stever correctly argues that his guilt
is less likely with Mexican DTO involvement than without it, both
because without such involvement a jury would naturally assume that
someone with legitimate authority over the land was at least in part
responsible, and because he proffered evidence of the exclusivity of
Mexican DTO operations . . . .
Finally, the Government argues that the evidence would invite the
jury to engage in impermissible speculation about Mexican DTOs and
their “correlat[ion] with the Stever property grow.” But the district court
is not free to dismiss logically relevant evidence as speculative: “[I]f
the evidence [that someone else committed the crime] is in truth
calculated to cause the jury to doubt, the court should not attempt to
decide for the jury that this doubt is purely speculative and fantastic
but should afford the accused every opportunity to create that doubt.”
United States v. Vallejo, 237 F.3d 1008, 1023 (9th Cir. 2001) (quoting
John Henry Wigmore, Evidence in Trials at Common Law §139
(1983)) (alterations in original). The jury will still be instructed to
decide whether a doubt created by the evidence is a reasonable one
and, if it is not, to convict. Viewed in that light, the danger the
Government invokes is only the danger that the jury will not follow the
instructions given, a risk which we may not entertain in light of “the
crucial assumption underlying our constitutional system of trial by jury
that jurors carefully follow instructions.” [Citation omitted.]
Moreover, as the Government conceded, the case against Stever
was circumstantial. Prosecutors asked the jury to infer that Stever
was involved in the operation based primarily on its location on his
property and his various interactions with Pulido [one of his
employees], who was linked to the operation by physical evidence.
Stever sought to counter the circumstantial inferences that the
Government asked the jury

147

to draw with evidence of other, logically relevant circumstances from

which obverse inferences to those sought by the Government could
be drawn. The district court's conclusion that the discovery was not
relevant was thus based on a misapplication of the principles of
logical relevance, and the denial of Stever's motion to compel
therefore an abuse of discretion.
[Judgment reversed on the ground that Stever was denied his Sixth
Amendment right to make a defense, an error that was not harmless.]

NOTES AND QUESTIONS

1. Although the court in Knapp does not state the essential
elements of the case under the substantive law, you can probably
deduce those elements yourself from the Johnson case. What are
they? How does the physician's testimony connect to a fact of
consequence in the case? Can you draw a diagram of this
connection? Are the tests of relevance stated in the court's opinion
similar, if not identical, to FRE 401 and 402?
2. The court articulates the chain of reasoning that it relies on to
establish the relevance of the physician's testimony. It requires a
generalization about the truth-telling propensities of people. Is this
generalization reasonable? Why does the court think so? Do you?
3. Notice the emphasis that the court gives to the defendant's
inability to remember who told him about the incident involving the old
man. What is the court's point? Consider this point again after reading
Section B, infra on FRE 403.
4. Stever's discovery request for government reports, training
materials, and other documents relating to Mexican DTOs in Eastern
Oregon was made pursuant to Fed. R. Crim. P. 16(a)(1)(E)(i), which
provides that the government must disclose all “documents . . . within
the government's possession, custody or control . . . [that are]
material to preparing the defense.” The government never denied that
it possessed such materials; it simply considered them irrelevant and
refused to make anything available to Stever.
5. The classic articles that have forged the concept of logical
relevance adopted by the Federal Rules of Evidence and described in
this chapter are George F. James, Relevancy, Probability and the
Law, 29 Cal. L. Rev. 689 (1941); Herman C. Trautman, Logical or
Legal Relevancy—A Conflict in Theory, 5 Vand. L. Rev. 385 (1952).
See also 2 Jack B. Weinstein & Margaret A. Berger, Weinstein's
Federal Evidence §401 (Joseph M. McLaughlin ed., Matthew Bender
2d ed. 2001); 1A Wigmore on Evidence §37 (Peter Tillers rev. 1983).
6. The approach of the Federal Rules is typically contrasted with
that of Wigmore, who argued that the law distinguished between
“logical” and “legal” relevancy. 1 John Henry Wigmore, Evidence in
Trials at Common Law §28, at 409-410 (3d ed. 1940): “[L]egal
relevancy denotes . . . something more than a minimum of probative
value.” Presumably, Wigmore was attempting to distinguish between
evidence that had some very slight probative value and that which
had considerably more persuasive force. The concept of “legal
relevancy” does not appear in the Federal Rules, but it is a term that
is still used by some practicing lawyers and judges.

148

KEY POINTS
1. FRE 402 requires that evidence must be relevant to be
admitted at trial, and that all relevant evidence is admissible
 unless otherwise provided.
2. FRE 401 requires that to be relevant, an evidentiary fact must
connect by a process of inferential reasoning to a “fact of
consequence” in the case. The essential elements of the
substantive law that governs the case determine what facts
are “of consequence.”
3. FRE 401 requires that to be relevant, evidence must make a
fact of consequence “more or less probable.” The judge
decides this issue under the “any tendency” standard by
examining the necessary inferences and the reasonableness
of the generalizations underlying them.

PROBLEMS
3.1. Consider the following items of evidence from the Johnson
case. Are they relevant under FRE 401? State the argument for
the proponent of the evidence: What fact of consequence (and
essential element) is the item offered to prove? Why does the
item make this fact more or less probable? Then make the
opponent's argument.
(a) The prosecution asked Officer Huston, “What type of
inmates are typically housed in Facility B?” (Page 9, line
27, supra.) Why would this information be relevant?
(b) Several correctional officers testified that the reports that
they wrote following the incident did not state that they
opened the food port door before the cell door was
opened electronically.
(c) The prosecution asked inmate Butler whether he was a
gang member and whether defendant Johnson was a
gang member. Butler answered that he himself was a Crip
and that he did not know if Johnson had any gang
affiliation. (Page 49, lines 33-40, supra.)
3.2. At 2:00 . . in the afternoon of September 15, 2010, Denise
Driver stopped her school bus at its regular stop on Cedar
Street. Several young school children between the ages of 8
 and 12 left the bus and stood on the gravel shoulder along the
side of Cedar Street. As the bus started forward, it hit one of
the children, Paul Pedroso, age 10. Paul has been hospitalized
since the accident.
Paul's parents have sued Driver and Driver's employer, the
San Ramon School District, for negligence on Paul's behalf.
They allege that Driver failed to keep a proper lookout and
veered off the roadway onto the gravel shoulder where Paul
was standing quietly, waiting for the bus to pass. Driver and the
school district allege that Driver kept a proper lookout; that Paul
was not standing quietly but was playing tag with several other
children along the side of the road; and that when Paul ran out
into the roadway unexpectedly, Driver had no opportunity to
stop in time to avoid hitting him.

149

At trial in the case of Pedroso v. Driver, Denise Driver testifies in her

own defense. Assume that she is a competent witness. During the
direct examination of the driver, the following questions and answers
occur.

Q: Are you still employed as a bus driver?

A: No, I quit after the accident.
Q: Why?
A: It is just like trying to haul a truck load of diamonds. (Voice breaks)Every one of those
kids were precious and I just did not have the heart to go back.
Q: Would you like a glass of water?
A: No, I am okay.

During cross-examination of the driver by the plaintiffs' attorney, the

following occurred:

Q: Isn't it true that you received a speeding ticket for driving the school bus with the
children in it, at 70 miles per hour in a 45 m.p.h. speed zone just a month before the
accident in this case occurred?
A: Yes.
 As attorney for the defendant, what is your theory of relevance for
the testimony at lines 4-6?
As attorney for the plaintiff, what is your theory of relevance for the
question and answer in lines 9-12? For each item, state the
connection between the evidence and the essential element.

3.3. In the case of United States v. Ray, Bernard Ray, the Chief
Executive Officer of Rundown Corp., is charged with the
federal crime of trading on inside information. The prosecution
must prove that Ray intended to profit from the purchase or
sale of securities by using “inside” information—information
confidential within Rundown and not yet known to the public.
Specifically, the prosecution alleges that Ray sold 100,000
shares of Rundown stock on March 16, 2015; that Ray made
this sale based on his knowledge of “inside” information that
Rundown was facing disastrous losses during the upcoming
second quarter (April to June) of 2015; and that Ray intended
to profit from this sale. In fact, Rundown Corp. did suffer
disastrous financial losses between April and June of 2015,
causing the company to file for bankruptcy in December of
2015.
These losses had been projected by Rundown Corp.'s outside
auditing firm in early March of 2015. The chief outside auditor
Arthur Andrews sent a confidential memorandum stating these
loss projections to the office of June Jacobs, the Chief
Financial Officer of Rundown, that was delivered to Jacobs on
the morning of March 14. Later in the afternoon of March 14,
chief auditor Andrews also sent an e-mail to Jacobs advising
her to inform Ray about these projections. Ray claims that he
was not informed about the projected losses until March 18,
just before the weekly meeting of Rundown's Executive
Committee. If called as a witness, Jacobs will assert her Fifth
Amendment privilege to refuse to testify about these events.
The government has a copy of the March 14 e-mail from

150
Andrews to Jacobs that it wants to enter into evidence to prove that
Ray knew about the projected losses before March 16.
Is the e-mail relevant under FRE 401? Why?
3.4. In the case of State v. Blair, on September 14, 2010, Norma
Waits, a 35-year-old woman, was brutally attacked in her
apartment. There were no signs of forced entry. Norma's
housekeeper found Norma unconscious the next morning and
then called 911.
Norma was a successful and beloved singer for the local Opera
Company. After an extensive investigation, police arrested
Jimmy Blair, a 45-year-old prominent entertainment lawyer, and
charged him with aggravated assault and battery and
attempted murder. Norma does not remember the attack and
cannot identify the attacker.
Jimmy and Norma had been dating since 2007. Their
relationship began when they met at a fundraising gala for the
Opera. Norma's friends reported that Jimmy was charming and
supportive. None of them had suspected any trouble, though
they did note that Norma had become more isolated in the two
years preceding the attack. Norma's best friend stated that she
had been unable to see much of Norma in 2010, despite
repeated attempts to arrange activities. Additionally, Norma's
career had begun to falter, and she took an extensive leave
from the Opera, citing unspecified health problems. As the
prosecution builds its case against Jimmy, many items of
potentially admissible evidence are considered. For the
following items, decide whether you think each item is relevant
under FRE 401 and 402 and why. Identify the fact of
consequence that the item might make more or less probable,
and the generalizations needed to support any inferences. Is
other evidence needed to determine relevance?
(a) A friend of Norma's says that a month before the attack,
Norma told the friend that she planned to tell Jimmy that
she was going to break up with him and leave the Bay
Area soon. Norma also said that she was afraid Jimmy
would be furious.
 (b) A police witness would testify that on the morning after
the attack, police found a suitcase in Norma's apartment
half-packed with her belongings. The police also found a
plane ticket for a flight to Los Angeles on that day with
Norma's name on it. The ticket was torn in half.
(c) Exhibits include photographs of Norma showing severe
bruising on parts of her body that would normally be
covered by clothing. The photos are date stamped July
25, 2009. A police witness will testify that she found these
photographs in a locked drawer in Norma's apartment,
which she opened with a key found among Norma's
personal effects.
3.5. During the course of a professional United States Soccer
League game, a player for the Blazers, Bob Broadback, was
injured by a blow struck by Tony Trapp, a player for the
opposing Tomcats. The injury occurred immediately after the
Blazers had scored and appeared likely to win the game. Just
before the score, Broadback and Trapp had run into each other
and both had fallen onto the field. As Broadback was getting
up, Trapp struck a blow with his forearm to the back of
Broadback's head and neck. Broadback suffered a serious
neck injury.

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Broadback files a personal injury lawsuit against Trapp for

battery. Broadback must prove that Trapp's blow caused his
injury. If Broadback also proves that Trapp struck him “with the
specific intent to cause grievous injury,” then Broadback can
claim punitive damages. In his deposition, Trapp has testified
that his contact with Broadback was a mere “slap,” that “stuff
like that happens all the time during games,” and that
Broadback must have been injured when they ran into each
other on the field.
(a) At trial, Broadback offers a recorded excerpt from the
televised filming of the soccer game that shows the
 sequence of events leading up to and including the blow
by Trapp to Broadback's neck. The recording also shows
an Official Referee immediately ejecting Trapp from the
game. Trapp objects on grounds of relevance. What
ruling and why?
(b) Broadback also offers a copy of Article V, Section A,
Subsection (3) of the Official Rules Governing the
Conduct of Play (Rules) of the United States Soccer
League, which reads as follows:

All players are prohibited from striking another player on the

head, face or neck with the hand, wrist, forearm, elbow or
clasped hands.

Is this Rule relevant? To prove what?

B. PROBATIVE VALUE AND THE RULE 403 DANGERS

FRE 403 affords the trial court authority to exclude evidence that is
admittedly relevant under Rules 401 and 402, but that the judge
believes might distract the jury from its role of rational
decisionmaking. As you read FRE 403, you will see that the rule
guides the court's discretionary power to exclude evidence. The judge
is not free to choose between admission and exclusion unrestrained
by fixed principles. Rather, the judge has some flexibility but is
restrained by the criteria articulated. Rule 403 does not allow a trial
judge “to remove relevant evidence from the jury's universe solely
because he finds the evidence unpersuasive; the ultimate arbiter of
the persuasiveness of the proof must be the factfinder, not the
lawgiver.” Blake v. Pellegrino, 329 F.3d 43, 47 (1st Cir. 2003). The
judge's power to exclude under FRE 403 means that the advocates
cannot present all the relevant evidence they would like to offer to the
jury, and the jury will not see and hear some admittedly relevant
information.

1. FRE 403
 RULE 403. EXCLUDING RELEVANT EVIDENCE FOR PREJUDICE, CONFUSION,
WASTE OF TIME, OR OTHER REASONS
The court may exclude relevant evidence if its probative value is substantially
outweighed by a danger of one or more of the following: unfair prejudice, confusing the
issues, misleading the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.

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2. Explanation of FRE 403

Relevant evidence is to be excluded only if its probative value is
substantially outweighed by one of the rule's articulated dangers.
When the opponent objects to the admission of evidence on any of
the grounds stated in the rule, the judge must carefully evaluate the
probative value of the offered item, estimate the Rule 403 “danger”
that it poses, and then apply the terms of the balancing test that the
rule sets forth. The rule itself and its Advisory Committee Note give
judges little guidance in interpreting the meaning of its terms. How is
the judge to measure probative value? What is the difference
between “confusion of the issues,” “misleading the jury,” and “unfair
prejudice”? We will develop the meaning of these terms in some
detail. We believe that careful analysis of the Rule 403 dangers can
have a critical impact on the trial judge's ruling.
Consider an example of evidence raising Rule 403 dangers. James
Johnson, the defendant, testified in the Johnson case that he
observed Officer Walker attack another inmate, allegedly for no good
reason: “He snatched a Hispanic guy up off the seat, took him out the
kitchen, drug him by the hair out of the kitchen in the front by the sally
port and jumped on the guy” (page 61, lines 7-19, supra). This
testimony was offered to show that Johnson had good reason to fear
Officer Walker when Walker came to his cell door. But the evidence
presents a problem: This testimony about Officer Walker's conduct on
another occasion could also cause the jury to think about Walker, not
about Johnson's state of mind. The jury could think that Walker is a
bad person and hold this against the government; also, the jury could
think that Walker has a propensity for violence and therefore would
have attacked Johnson. As we explain at page 156, infra, these are
the two ways in which this evidence might be unfairly prejudicial to
the government's case. Thus, Johnson's testimony might be objected
to by the prosecution under the state-law equivalent of FRE 403,4
and the judge must weigh the probative value of the evidence against
these risks of unfair prejudice.
a. Probative Value
To decide the merits of a Rule 403 objection, the judge must first
analyze the persuasive effect that the item of evidence will be likely to
have on the jury's thinking about the fact of consequence it is offered
to prove. This is its probative value. Remember that evidence is
relevant if it has “any” tendency to make the fact of consequence
more probable or less probable; probative value measures the
strength of the evidence, even if only in general terms like “highly,”
“somewhat,” or “minimally” probative. Defendant Johnson's testimony
as to Officer Walker's conduct is clearly relevant to show that
Johnson had reason to fear Walker, but what is its probative value?

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In United States v. Buchanan, 964 F. Supp. 533, 537 (D. Mass.

1997), the district court posed the issue as follows:
In evaluating probative value I am obliged to consider first “how strong a tendency” the
proffered evidence has to prove the issue of consequence in the litigation,. . . and
second, the proponent's need for the evidence.
In order to examine both the strength of the evidence and the
proponent's need for it, the judge will need some appreciation of the
other evidence in the case.
Strength of the Underlying Inferences. Most courts and
commentators agree that the primary measure of probative value is
the strength of the inferences that connect the evidence to the
essential element. This strength depends on the strength of the
generalizations underlying those inferences. If, as Johnson said, he
saw Officer Walker beat up another inmate with no provocation, then
a generalization underlying the inference that Johnson feared Walker
could be articulated as follows:
The judge's rough estimate of the probability expressed in this
generalization—here, the frequency with which inmates do become
afraid, estimated as “very likely”—is the major component of the
judge's estimate of the probative value of Johnson's testimony. There
is no single “correct” way to articulate this generalization, and there is
no precise or accurate way to estimate its degree of frequency.
Moreover, details of the offered evidence would affect how the
generalization is framed, such as was the beating extremely violent?
Would it cause extreme or only mild fear in the minds of other
inmates? Additional evidence can also increase or decrease the
probative value of the offered item. Were such beatings frequent or
unusual? Was there already “bad blood” between Johnson and
Walker, or between the Hispanic inmate and Walker? Some of these
facts could be the subject of further testimony from Johnson, or from
additional witnesses as well. The jurors, if the evidence is admitted,
will then make inferences from these facts, based on their own
background knowledge and experience. You can see that the judge's
estimate is just that—a rough attempt to place a value on an
inference that a reasonable jury could make and that cannot be
quantified with precision.

154
 Certainty of the Starting Point. The certainty of testimony that is
the starting point of an inferential chain can also affect probative
value. For example, what if Johnson testified that he “thought” it was
Officer Walker who beat the other inmate but he “wasn't sure”? If
witnesses admit that they are themselves uncertain about what facts
they actually perceived, or if a document contains ambiguous
language, judges may lower their estimate of the probative value that
they attribute to the evidence for purposes of FRE 403. United States
v. Rodriguez-Cabrera, 35 F. Supp. 2d 181, 184 (D.P.R. 1998)
(meaning of defendant's nod so ambiguous that prejudice
substantially outweighs probative value).
Judges Do Not Weigh Credibility. Judges do not take witness
credibility into account in assessing probative value. For example,
should defendant Johnson be believed when he said he saw Officer
Walker attack another inmate? Doubts about Johnson's credibility
could reduce the probative value of the facts he testifies about. But
courts do not count the witness's credibility when estimating probative
value. 22 Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure §5214 at 265-266; United States v. Wallace, 124 Fed.
Appx. 164, 167 (4th Cir. 2005) (“the credibility of a witness has
nothing to do with whether or not his testimony is probative with
respect to the fact which it seeks to prove.”). The judge's role is to
estimate the probative value of testimony if believed.
Length of the Inferential Chain. The length of an inferential chain
of reasoning does not necessarily reduce the probative value of an
item of evidence. Indeed, DNA evidence, for example, requires
complicated chains of reasoning and can yield a high probability.
While it is true that some chains of reasoning are longer and some
are shorter, the important point is that some are stronger in the sense
of being more convincing, while some are weaker in the sense of
being not very persuasive. At issue is the strength of the connection
between the evidence and the conclusion rather than the number of
steps that must be taken to get to that conclusion. This is a function
primarily of the strength of the generalizations underlying each step.
 Need. The Advisory Committee Note to FRE 403 mentions two
other factors that a judge may take into account in applying the rule's
balancing test. First, the Note advises that judges should balance “the
probative value of and need for the evidence against the harm likely
to result from its admission” (emphasis added). Then, the Note closes
with the statement that the “availability of other means of proof” may
also be weighed in the decision to exclude evidence on grounds of
unfair prejudice. No explanation of these terms is given, nor is the
judge advised how to take these factors into account. Case law
reveals that there are many ways in which judges do take need into
account. The centrality of the point to be proved with the proffered
evidence, the degree to which this point is disputed by the opponent,
and the strength of the evidence in proving the point, can
demonstrate a party's need for evidence. United States v.
DeLaurentis, 83 F. Supp. 2d 455, 467-468 (D.N.J. 2000) (evidence
that defendant engaged in a prior criminal scheme with government's
star witness was necessary to rehabilitate that witness's credibility
after defendant's attack, and was particularly probative of the
witness's truthfulness).

155

Need for a particular item of evidence because there is no

alternative means of proving a fact of consequence can also affect
the FRE 403 decision. Courts have held that such need for evidence
“should be weighed along with its probative value to determine
whether it should be admitted under Rule 403 [but] need . . . does not
make the evidence more likely to prove that which it is offered to
prove.” United States v. Stout, 509 F.3d 796, 800 (6th Cir. 2007).
Thus, if unfair prejudice substantially outweighs the probative value of
an item, the court may still exclude the item despite lack of other
means of proof.
Alternatively, if there is already substantial evidence on the same
point, there is less need for an additional item. Frank v. County of
Hudson, 924 F. Supp. 620, 626 (D.N.J. 1996) (evidence of unrelated
child sexual abuse by a defendant in a sexual harassment and
discrimination case was excluded, although admissible under FRE
413-415, because four plaintiffs making similar accusations of
defendant's workplace harassment “reduces the relative weight” of
the proffered child abuse evidence); United States v. Bell, 516 F.3d
432, 445 (6th Cir. 2008) (quantity of illegal drugs possessed, along
with drug scales, a cutting board and other drug paraphernalia,
substantially reduced government's need for past drug distribution
convictions to prove defendant's “intent” to distribute).
You can see that this fine-tuning of the Rule 403 factors requires
that the judge be familiar with evidence that is already admitted, and
that is expected to be admitted, at trial. The judge may also need to
inquire about what other evidence is available to the parties. In United
States v. Gonsalves, 668 F.2d 73, 75 (1st Cir. 1982), evidence of
defendant's threat leveled against an eyewitness who would testify
against him was admissible as showing consciousness of guilt
despite the risk of unfair prejudice. The government's eyewitness
identification evidence against defendant was strong, and defendant's
alibi evidence was equally strong; the appellate court affirmed in part
because the government had no other means to corroborate its
eyewitnesses and its need was “substantial.” If the judge is not able
to make this contextual judgment at the time a Rule 403 objection is
made, the judge can defer decision until later in the trial when more
evidentiary context has been provided, using the technique of
conditional admissibility that will be discussed in Chapter Four,
Section E.
b. Rule 403 Dangers
The second step in resolving a Rule 403 objection is for the judge to
estimate the danger that the item of evidence poses to the jury's
rational decisionmaking process and to the judicial system's interest
in efficient decisionmaking. FRE 403 identifies two types of dangers.
One type involves major sources of risk of error in the jury's
reasoning process. Evidence that is unfairly prejudicial or confusing
or that will mislead the jury can be excluded. The other type involves
dangers to trial efficiency. If the production of evidence will cause
undue delay, is a waste of time, or is needlessly cumulative, it may be
excluded. Whatever the kind of danger, the judge will attempt to make
a realistic estimate of the danger posed. This will include the nature
of the danger, the likelihood that the jury will be negatively affected,
and the probable degree of the harmful effect. And if a single item of
evidence raises more than one of these probative dangers, this may
significantly increase the probable degree of harm.

156

Unfair Prejudice. The term unfair prejudice refers to the danger

that evidence might suggest an improper basis upon which the jury
could decide the case. Evidence is not unfairly prejudicial simply
because it is detrimental to a party's case.
If all evidence adverse to a defendant was subject to exclusion under F.R.E. Rule 403,
then no government evidence would ever be deemed admissible. The test . . . is not
whether the evidence is detrimental, but whether it is so unfairly prejudicial as to
substantially outweigh its probative value. [United States v. Weinstock, 153 F.3d 272,
278 (6th Cir. 1998).]
There are two principal risks of unfair prejudice within the scope of
FRE 403. The first risk is that evidence about a party can trigger a
response that has nothing to do with its logical connection to a fact of
consequence. This response can turn the jury against that party (or in
favor of that party) and improperly influence the jury's
decisionmaking. The Advisory Committee Note to FRE 403 suggests
that this improper reaction is “commonly, though not necessarily, an
emotional one.” Wigmore describes the danger as occurring when
evidence would “be likely to stimulate an excessive emotion or to
awaken a fixed prejudice . . . and thus dominate the mind of the
tribunal and prevent a rational determination of the truth.” John Henry
Wigmore, Code of Evidence 355 (3d ed. 1942).
For example, recall the testimony of defendant James Johnson
concerning Officer Walker's attack on another inmate, discussed on
page 152, supra. Walker's attack might trigger a response of anger or
disgust that prejudices the jury against Walker. There is a risk that
this prejudice could influence the outcome in the Johnson case in an
unfair way, such as the jury viewing a verdict in favor of Johnson as a
punishment of Walker. If a Rule 403 objection is made, the trial judge
would have to estimate this danger of unfair prejudice by identifying
the nature of the danger and its likely effect. United States v. Bell, 516
F.3d 432, 445 (6th Cir. 2008) (“evidence of Bell's prior crimes painted
a picture of Bell as a repeat drug offender, greatly increasing the
chance that the jury would punish him not for his involvement in the
offense at issue, but rather because he appeared to be a 'bad guy' ”).
Evidence that could generate undue sympathy for a party can also be
excluded as unfairly prejudicial. Lewis v. City of Chicago Police Dept.,
590 F.3d 427, 440 (7th Cir. 2009) (evidence that plaintiff suffered a
broken neck when accidentally hit on the head during a forced house
entry was excluded as highly inflammatory in the context of her
employment claim of retaliation).
The second principal risk of unfair prejudice is if evidence admitted
for a proper purpose could also be used by the jury in a manner that
is prohibited by another evidence rule. For example, Officer Walker's
attack on the other inmate triggers the permissible inference that
defendant Johnson feared Walker. It also triggers an impermissible
inference about Officer Walker's propensity to use violence against
inmates in general, and thus to use violence against Johnson. This is
impermissible under FRE 404(b), which prohibits the use of prior
specific acts, such as Walker's attack, to prove action in conformity
with character, as we will see in Chapter Five. The risk that the jury
will use Johnson's testimony for this improper purpose qualifies as a
danger of unfair prejudice under FRE 403. Johnson's testimony thus
has a proper relevant use—to prove that he feared Walker—as well
as an improper use—to prove

157

Walker's violent character. If the prosecution objects to Johnson's

testimony, FRE 403 requires the judge to balance the testimony's
permissible probative value against the danger that it will be used
improperly. In Smith v. City of Oakland, 538 F. Supp. 2d 1217 (N.D.
Cal. 2008), plaintiff sued two Oakland police officers for violating his
constitutional rights by planting a semi-automatic rifle in his residence
in order to frame him. The officers sought to cross-examine Smith
about his being a candidate for “three-strikes” penalty in California if
he possessed the rifle, thus giving him a powerful motive to lie. The
court ruled under FRE 403:
Mr. Smith already possessed a strong motive to lie . . . because his parole was subject
to revocation for illegal possession of the gun. Moreover, any probative value to the
three strikes evidence was substantially outweighed by the danger of unfair prejudice.
Strikes are given for serious felonies only, and thus there was a significant risk that the
jury would infer that Mr. Smith was a violent offender and improperly consider the
evidence as character evidence.
When assessing unfair prejudice, courts take into account whether a
jury instruction explaining the permissible and impermissible uses of
evidence is likely to be effective. FRE 105. We discuss FRE 105 in
more detail below.
Confusion of the Issues. Evidence confuses the issues when it
focuses the jury's attention too closely on a factual issue that is not
central to the outcome of the case. Such issues are termed
“collateral,” which usually means that their connection to the essential
elements is trivial and may be based on complicated or attenuated
theories of relevance. Typically, then, proof of collateral issues will
require the use of multiple witnesses or will consume considerable
time in court. If the jury gets involved and interested in deciding a
collateral issue, it will spend less of its attention on the important
questions. It is not that these collateral issues are irrelevant; rather,
they are too distracting and tend to confuse the issues. For example,
evidence of several other incidents of violence against inmates at
Pelican Bay, offered by the defense to show that defendant Johnson
was justified in being fearful of prison guards, would require testimony
from several witnesses, and might be hotly disputed by the
prosecution. The jury might confuse the issues and focus its attention
on whether those other incidents occurred, instead of on whether
Johnson committed the alleged acts of battery. Halvorsen v. Baird,
146 F.3d 680 (9th Cir. 1998) (evidence from six witnesses that each
had been involuntarily detained in a detoxification center when they
were not drunk was not permitted to bolster plaintiff's case that he
had been treated similarly; risk of confusing jury by involving it in a
dispute over whether these six individuals were drunk or not).
 Another risk of confusion in the Johnson case would be that the
evidence of additional violent incidents might cause the jury to focus
on an issue that is not a question that the jury is being asked to
decide in the lawsuit—such as the prison's policy toward inmates at
Pelican Bay. In contrast, in United States v. Crosby, 75 F.3d 1343,
1348 (9th Cir. 1996), the court held that the trial court erred in
excluding as “confusing” evidence that the victim's own husband may
have committed the assault for which the defendant was on trial. This
evidence was not confusing, the appellate court said, because it
“added no new issues to the case, as it dovetailed neatly with
defendant's theory that someone else had committed the crime.”

158

Misleading the Jury. Courts often refer to evidence as both

“confusing and misleading” and make no effort to distinguish between
the two dangers. The danger of being misleading, however, usually
involves a risk that an item of evidence will cause the jury to draw a
mistaken inference. In Jones v. Ford Motor Co., 320 F. Supp. 440
(E.D. Va. 2004), plaintiff alleged that a defect in the design of the Ford
cruise control system caused her automobile to accelerate suddenly,
resulting in her personal injuries. To prove that Ford was on notice of
the defective condition, the plaintiff offered government reports from
Canada and Japan about sudden acceleration problems with cruise
control systems in General Motors cars. The district court excluded
these reports under Rule 403 as potentially misleading, since the
cruise control systems in Ford cars were not functionally similar and
the jury could mistakenly equate them to the General Motors
systems. Facts taken out of context or presented in a falsely
suggestive manner can also trigger this danger.
Courts are usually not persuaded by the argument that a jury will be
misled into giving evidence more weight than it deserves. Juries are
assumed to possess reliable generalized knowledge and experience
that allows them to evaluate most aspects of human affairs that are
presented at trial. Occasionally, however, the risk of over-valuation
can rise to the level of “misleading” the jury. For example, videotaped
reenactments of accidents or other events have been called
misleading because jurors may treat them as documentations of the
actual event. Many courts reject a criminal defendant's lie detector
evidence on the grounds that the jury may over-value polygraph
results as an indicator of truthfulness because of their scientific
nature. United States v. Call, 129 F.3d 1402, 1406 (10th Cir. 1997).
But a court should not exclude such testimony simply on the theory
that scientific techniques by their very nature overwhelm the jury.
United States v. West, 962 F.2d 1243, 1248 (7th Cir. 1992) (error to
exclude psychiatrist's testimony on the ground that it would mislead
the jury with confusing psychiatric terminology—“there was nothing
more technical or confusing about [the doctor's] testimony here than
the psychiatric testimony in most cases”); In re Paoli R.R. Yard PCB
Litigation, 35 F.3d 717, 746 (3d Cir. 1994) (“[t]here must be something
about the particular scientific technique such as its posture of mythic
infallibility that makes it especially overwhelming”).
The use of complex statistics and probabilistic evidence, such as
DNA identification evidence, epidemiological studies in toxic tort
cases, and employer hiring practices in discrimination cases, is also
challenging for the jury. Even experts do not agree about the proper
calculation and interpretation of the probability of a DNA match in
“cold hit” cases, where the match is the only evidence connecting a
defendant to the charged crime. David H. Kaye, Rounding Up the
Usual Suspects: A Legal and Logical Analysis of DNA Trawling
Cases, 87 N.C. L. Rev. 425 (2009). Even where the probability data is
empirically valid, there is still a risk that the translation of statistical
probability into “real numbers” that the jury can understand may
mislead or confuse the jury: “The apparent precision of statistical
evidence often stands in marked contrast to the uncertainties of other
testimony. . . . The danger is that such evidence will overshadow
equally probative but admittedly unscientific and anecdotal
nonstatistical evidence.” The Evolving Role of Statistical
Assessments as Evidence in the

159
 Courts 150 (Report of the Panel on Statistical Assessments as
Evidence in the Courts) (Stephen E. Fienberg, ed., 1989). “The
danger . . . is that statistics on the frequency with which certain blood
type combinations occur in a population will be understood by the jury
to be a quantification of the likelihood that the defendant, who shares
that unique combination of blood characteristics, is guilty.” State v.
Joon Kyu Kim, 398 N.W.2d 544, 548 (Minn. 1987).
Despite the risk of over-persuasion, the probative value of, and the
need for, this kind of evidence is very high. State statutes provide for
the use of blood testing and probability estimates in paternity cases,
and many courts have approved the admission of probability
testimony about DNA testing.
Undue Delay, Waste of Time, and Needless Cumulative
Evidence. Each of these dangers illustrates a different aspect of the
same underlying problem: The introduction of evidence always
absorbs court time, incurs expense by the opposing parties and by
the state-run judicial system, and expends the attention of the jury.
The dangers of delay and waste of time are easily quantifiable. For
example, if a continuance is required for production of evidence or to
transport the jury to view the scene of the crime, the trial will be
delayed. And if a trial judge has imposed strict time limits on the
length of trials, requests for extension of time to present rebuttal
evidence are decided under the FRE 403 balancing test: “As a
general rule, evidence may not be excluded solely to avoid delay. . . .
Under Rule 403, the court should consider the probative value of the
proffered evidence and balance it against the harm of delay.” General
Signal Corp. v. MCI Telecommunications Corp., 66 F.3d 1500, 1509-
1510 (9th Cir. 1995). Courts have held that evidence may waste the
jury's time if offered to prove stipulated, collateral, or background
facts. And research does show that “the longer a trial goes, the more
the jury forgets and the less accurate the decision becomes.”
Securities and Exchange Commission v. Koenig, 557 F.3d 736, 739
(7th Cir. 2009).
The danger underlying needless presentation of cumulative
evidence is less quantifiable. It includes the expenditure of trial time
on repetitive testimony, plus the risk of losing the attention of the jury.
During the Johnson trial, Officer Smith described for the prosecution
what happened between Officer Walker and defendant Johnson when
Johnson's cell door was opened. Officers Huston, Van Berg, and
Walker had already testified about this occurrence. Thus, the defense
might have objected, in the terms of FRE 403, that Officer Smith's
testimony was a needless presentation of cumulative evidence and
should be excluded. Here the judge must assess the degree to which
the testimony actually is repetitive. Obrey v. Johnson, 400 F.3d 691
(9th Cir. 2005) (in an action alleging a pattern of discriminatory
promotion practices, testimony from three witnesses who would have
testified to their own experiences of discrimination was not cumulative
or repetitive as it tended to support the pattern or practice theory).
Also, there may be reasons why repetition is needed—such as the
centrality of the fact of consequence being proved, the degree to
which that fact is in dispute, and the probative value of the
corroboration itself. It is unlikely that Officer Smith's testimony would
be considered “needless” in the Johnson case, since Johnson's
behavior was

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the central focus of the dispute and each side offered several
witnesses to the events. Coles v. Jenkins, 1998 WL 964506 (W.D. Va.
1998) (court denied motion in limine to prevent defendant's use of
three experts to testify regarding the dangerousness of a state
highway, since each expert had a slightly different area of expertise).
c. Probative Value Substantially Outweighed by One of the FRE 403 Dangers
The final step is for the trial judge to weigh the probative value of
the offered item of evidence against the danger that this item poses
under FRE 403. The rule states that the evidence should be excluded
only when its probative value is “substantially outweighed by” one or
more of the FRE 403 dangers. The rule does not provide further
explanation of how to determine when a danger substantially
outweighs probative value. The Rule does make clear, however, by
its use of the term “substantially,” that the balance is tilted heavily in
favor of admission of the evidence.
The Meaning of “Substantially Outweigh.” There does not
appear to be a scale—a common measure—with which to compare
probative value versus the degree of risk that Rule 403 dangers pose
to the jury's reasoning process. If that is so, a fortiori there is no
means of calibrating which weighs more. There is no “quantum effect
on rationality” that can be assigned to an item of evidence. One way
that judges might think about the balancing test is to predict an
overall effect of an item of evidence on the jury: What is the likelihood
that the “bad” aspect of the evidence will seriously dominate the mind
of the jury, overwhelming the “good” aspect? If the likelihood seems
high, admission of such evidence may lead to “bad” factfinding as the
incremental “badness” of the evidence exerts itself, and exclusion
under FRE 403 would be justified.
We might ask, however, why evidence should ever be admitted if its
“bad” aspect appears to dominate over the “good” to even a small
degree? Would not such evidence always taint the jury's factfinding?
The rule's requirement that probative value be outweighed
“substantially” appears to require that some risks of negative impact
be tolerated. This is sensible because the judge's ability to predict
such effects is so imprecise.
Another way to think about the requirement of substantiality is that it
measures the judge's confidence level: Evidence should be excluded
only when the judge is quite confident that the prejudicial aspects of
the evidence outweigh its probative value. The requirement can be
thought of, in other words, as providing a burden of proof to be
applied under FRE 403 to the admission of evidence. The burden in
FRE 403 favors wrongful decisions to admit evidence over wrongful
decisions to exclude it. This is in keeping with the strong belief of the
drafters of the Federal Rules of Evidence that the underlying
principles of the rules—truth and justice—will best be furthered when
more rather than less evidence is deemed admissible.
In practice, how do judges conduct the balancing test of FRE 403?
One commentator suggests the following table to show how Rule 403
would properly operate:

161

(Newell Blakely, Article IV: Relevancy and Its Limits, 30 U. Hous. L.

Rev. 281, 317 (1993).)
The Effect of Limiting Instructions on the Balancing Process.
The balancing of probative value versus a Rule 403 danger is also
affected by FRE 105, which provides as follows:
When evidence which is admissible as to one party or for one purpose but not
admissible as to another party or for another purpose is admitted, the court, upon
request, shall restrict the evidence to its proper scope and instruct the jury accordingly.
The Advisory Committee Note to FRE 403 states that “[i]n reaching a
decision whether to exclude on grounds of unfair prejudice,
consideration should be given to the probable effectiveness or lack of
effectiveness of a limiting instruction.”
This means that when an item of evidence has a proper relevant
use to prove a fact of consequence but also creates the risk of an
improper use—an impermissible inference or an unfairly prejudicial
effect—the judge may give a limiting instruction that directs the jury to
consider the evidence only for its proper use. In the example from the
Johnson case, Johnson's testimony about Officer Walker's attack on
another inmate could have been accompanied by a limiting
instruction—that the jury was to consider this testimony only for its
effect on Johnson's state of mind, and for no other purpose. If the
judge believes that the jury will probably follow such an instruction,
the judge may find that the risk of unfair prejudice is lowered and will
admit the item. Other instructions can be given that could reduce the
confusing or misleading risks of admitted evidence. The judge's belief
that the jury can and will follow limiting instructions could decrease
the judge's estimation of the risk of Rule 403 dangers.
It is not clear, however, that the jury can or will follow such an
instruction. Social science researchers have attempted to investigate
this issue. The findings from many empirical studies are summarized
in Lieberman & Arndt, Understanding the Limits of Limiting
Instructions, 6 Psychol. Pub. Poly. & L. 677 (2000). Some of this
research

162

has concluded that the giving of an instruction may serve to

emphasize the inadmissible evidence or improper inference, which
may be more damaging than simply letting the matter go unnoticed.
Other studies show that jurors follow limiting instructions selectively,
and should be more likely to follow them when the judge offers an
explanation as to why jurors should ignore certain uses of the
evidence. The most common explanation for the failure of jurors to
follow limiting instructions is that jurors react negatively to limits on
their ability to perform “free behaviors”—especially when they are
instructed to ignore uses of evidence that appear to them highly
relevant. However, a recent study found that limiting instructions
given prior to exposure to gruesome crime photos produced a pro-
defense bias in survey responses. The authors hypothesize that pre-
exposure instructions “function as a forewarning about the potential
for bias and allow for attempts to avoid or correct bias” whereas
limiting instructions given at the close of trial arrive after evidence has
been encoded and perhaps judged, “when jurors are impotent to
remove the influence of emotions that have infused processing.”
Cush & Delahunty, The Influence of Limiting Instructions on
Processing and Judgments of Emotionally Evocative Evidence, 13
Psych., Psychol. & Law 110, 120 (2006). Overall, the effectiveness of
limiting instructions may be hindered by the jury's lack of
understanding of the policy behind a rule of exclusion and the jury's
lack of comprehension of the instruction itself. See Peter Meijes
Tiersma, Reforming the Language of Jury Instructions, 22 Hofstra L.
Rev. 37 (1993). Lieberman & Arndt propose a number of strategies
for mitigating the problem of ineffectiveness, including judicial
instructions that “soft sell” the limits on the jury and emphasize issues
of procedural fairness. 6 Psychol. Pub. Poly. & L. at 704-705 (2000).
As a general rule, however, courts assume that instructions do
effectively exclude improper evidence from the jury's consideration.
The U.S. Supreme Court has offered the following rationale:
The rule that juries are presumed to follow their instructions is a pragmatic one, rooted
less in the absolute certitude that the presumption is true than in the belief that it
represents a reasonable, practical accommodation of the interests of the state and the
defendant in the criminal justice process. [Richardson v. Marsh, 481 U.S. 200, 211
(1987).]
And an experienced trial judge supports the giving of limiting
instructions:
While the videos might be used by the jury improperly, a limiting instruction to the jury,
here given repeatedly, specifying the purpose for which they can use the videos is
sufficient to ensure that there will be no unfair prejudice to the defendant. . . .
There is always some danger that the jury will ignore the court's instructions about the
limited way in which evidence should be considered. Juries in the product liability cases
tried in this court have been responsible. The “runaway jury” concern is not
substantiated. [Gonzalez v. Digital Equipment Corp., 8 F. Supp. 2d 194, 198 (E.D.N.Y.
1998) (Weinstein, J.).]
Judicial reliance on the use of limiting instructions to resolve FRE 403
problems will be demonstrated throughout this book. United States v.
Candelaria-Silva, 162 F.3d 698 (1st Cir. 1998) (evidence of
defendant's flight admitted as evidence of guilt of the crime charged;
danger that jury would give it undue weight was cured by court's
instruction that flight may not always reflect feelings of guilt, that
many innocent
163

people flee, and that flight alone is insufficient to sustain a

conviction). In some circumstances, however, courts recognize that
limiting instructions are not a “sure-fire panacea for the prejudice
resulting from the needless admission of [prejudicial] evidence.”
United States v. Haywood, 280 F.3d 715, 724 (6th Cir. 2002). In
United States v. Garcia-Rosa, 876 F.2d 209, 222 (1st Cir. 1989), the
court held that the prejudicial effect of the evidence was so severe
that it could not “be remedied merely through a limiting instruction . . .
[and] [i]f limiting instructions could remedy all such errors, the
government would easily be able to circumvent Rule . . . 403.” And in
Stockman v. Oakland Dental Center, 480 F.3d 791, 804 (6th Cir.
2007), the limiting instruction was not given until the jury charge,
“making it all the more difficult to un-ring the bell . . . [and] opened
Defendants' case to the full brunt of the injury.”
Are limiting instructions the best resolution to Rule 403 problems?
Some commentators urge that rather than reforming limiting
instructions, they should be abolished, and that this will require trial
judges to weigh probative value versus risk of unfair prejudice more
carefully in making FRE 403 decisions.

3. FRE 403: Specific Problems and Applications

a. Gruesome Exhibits and Other Potentially Inflammatory Evidence
Numerous cases in federal court apply Rule 403 to the
prosecution's use of photographs, videotapes, and other
demonstrative evidence to portray the graphic effects of violent crime
and accidents. The inflammatory nature of such exhibits calls for
careful analysis of their probative value and limitations on their use.
In United States v. Yahweh, 792 F. Supp. 104 (S.D. Fla. 1992), the
district judge admitted gruesome autopsy photographs from “arguably
the most violent case ever tried in a federal court.” The defendant
objected to the use of these photographs, particularly in enlarged
format, under FRE 403. To determine probative value, the judge
carefully reviewed the relevance of each of the photographs and
noted that the enlarged size was necessary to furnish the detail that
corroborated witnesses' description of events prior to death. The
judge required the medical examiners to select those photographs
that illustrated their testimony and to explain the need for each
photograph on the basis of content and size. In addition, the judge
found that the display of the enlarged photographs enabled all jurors
simultaneously to follow the witnesses' testimony. The judge also
brought his own background knowledge and experience out into the
open:
For twenty years, this court has stood by the jury box to observe as witnesses testified in
front of the jury box concerning exhibits being published to the jury there. In this court's
view, the larger 30” × 40” pictures were the right size to illustrate and clarify the witness'
testimony; in fact, even the 16” × 20” size was inadequately small by comparison. [Id. at
108.]
On the issue of unfair prejudice, the judge determined that the blown-
up photos did not distort the nature of the wounds, acknowledged the
grisly nature of the pictures, and ordered that the most offensive ones
be reduced in size to 16” × 20” for use in jury deliberations. The
photographs were not, in the judge's opinion, flagrantly or deliberately
gruesome depictions of the crime. The judge also “carefully observed
the jurors

164

and their reactions to the photos. . . . [T]he jurors showed no signs of

being disturbed by the exhibits.” Id. at 168. Finally, the judge
commented on the nature of unfair prejudice cognizable under FRE
403:
Relevant evidence is inherently prejudicial; but it is only unfair prejudice, substantially
outweighing probative value, which permits exclusion of relevant matter under Rule 403.
Unless trials are to be conducted on scenarios, on unreal facts tailored and sanitized for
the occasion, the application of Rule 403 must be cautious and sparing. . . . It is not
designed to permit the court to “even out” the weight of evidence, to mitigate a crime. . .
. [Id. at 106.]
Appellate courts are also likely to defer to the conscientious efforts
of trial judges to limit the amount and impact of potentially prejudicial
evidence. In a case involving the leaking of confidential government
information about ongoing criminal investigations for purposes of
“short-selling” in the securities market, testimony was given that some
of the leaked information concerned one of the defendant's possible
involvement in the attacks on September 11, 2001. That defendant
objected under FRE 403. The appellate court held:
The record thus demonstrates that, far from abusing its discretion, the district court
engaged in precisely the sort of “conscientious assessment” that our precedents require
. . . . It carefully weighed the probative value of the 9/11-related evidence the
Government wished to offer, excluded that evidence that was more potentially prejudicial
than probative (such as references to Al Qaeda), issued limiting instructions to the jury
on several occasions [to the effect that the defendant was not involved in terrorism or
the events of 9/11], and continued to keep tight control over the introduction of such
evidence even after [a different] defendant's testimony explicitly addressed the topic of
9/11. [United States v. Royer, 549 F.3d 886, 903 (2d Cir. 2008.]
In capital punishment cases, statements from victims and victims'
families about the effect of the defendant's conduct are admitted in
the sentencing phase of trial, after guilt has been determined. But in
the prosecution of Timothy McVeigh for the 1998 bombing of the
federal building in Oklahoma City, statements from victims about the
horrific injuries they and others suffered were admitted during the
guilt phase of trial. The appellate court acknowledged that “[t]he
description of the destruction and carnage following the explosion is
the most emotionally powerful of the evidence presented during the
guilt phase.” United States v. McVeigh, 153 F.3d 1166, 1202-1203
(10th Cir. 1998). Proof of how the crime occurred was, however, held
to be probative of the elements of the crimes charged—use of a
weapon of mass destruction and a malicious intent to kill. Id.
Testimony concerning long-term effects of the bombing, however,
such as loss of jobs, attendance at funerals, and the lasting emotional
trauma of severe injury, were found to be “not particularly relevant” to
the guilt phase and to have emotional content. Any error in the
admission of such testimony was, however, held to be harmless. Id.
at 1203-1204.
b. Spoliation
There are many cases involving various ways in which parties, and
sometimes their lawyers, attempt to destroy, alter, or suppress
evidence that is adverse to their position in a lawsuit. Instances of
such “spoliation” take many forms—subornation
165

of perjury, threats to and intimidation of witnesses, solicitation of

murder of a witness, and alteration or destruction of documents.
Evidence of spoliation conduct is generally admissible against the
spoliator—giving rise to an inference that evidence was unfavorable
to the spoliator's position or to an inference of the party's general
consciousness of guilt or liability. See generally Kathleen Kedigh,
Spoliation: To the Careless Go the Spoils, 67 U. Mo. (K.C.) L. Rev.
597 (1999) (describing the standards of proof of spoliation and the
other remedies available, including discovery sanctions, exclusion of
the spoliator's evidence, and a separate tort claim against the
spoliator).
For our purposes, evidence of spoliation offered at trial raises
recurring questions of relevance and of unfair prejudice under Rule
403. In a civil case involving circumstantial proof that the plaintiff
attempted to suborn favorable perjured testimony from a witness, the
Third Circuit stated the relevance theory as follows, citing analysis
from Wigmore's treatise, existing case law, and the text of FRE 401
itself:
One who believes his own case to be weak is more likely to suborn perjury than one
who thinks he has a strong case, and a party knows better than anyone else the truth
about his own case. Thus, subornation of perjury by a party is strong evidence that the
party's case is weak. Admittedly the conclusion is not inescapable: Parties may be
mistaken about the merits or force of their own cases. But evidence need not lead
inescapably towards a single conclusion to be relevant. . . . The evidence of subornation
here does cast into doubt the merits of [plaintiff's] claim, even if it does not extinguish
them. [McQueeney v. Wilmington Trust Co., 779 F.2d 916, 921 (3d Cir. 1985).]
Spoliation behavior is usually illegal and may involve threats of
violence or worse. Thus, evidence of such behavior raises a risk of
unfair prejudice, in the sense of generating an emotional response
against the party as a “bad person,” under Rule 403. The court in
McQueeney reversed the trial court's decision to exclude evidence of
the plaintiff's alleged attempt to suborn perjury with the following
analysis of its probative value and potential for unfair prejudice:
Intuition and the unanimity of the commentators and numerous courts that have
considered it suggest not only that subornation of perjury is relevant but that it is
powerful evidence indeed. . . . The court did not articulate any reasons for its finding of
 prejudice, and this does not appear to us to be the kind of evidence with obvious or
overwhelming potential for unfair prejudice. In the absence of a showing of particularized
danger of unfair prejudice, the evidence must be admitted. Were we to rule otherwise,
evidence could be excluded on an unfounded fear of prejudice and we would effectively
preclude all evidence of subornation of perjury. [Id. at 922-923.]
Consider whether in McQueeney the Third Circuit has, in effect,
created a precedential ruling of law on the strong probative value and
general lack of unfair prejudicial effect of spoliation evidence. We
return to the topic of appellate rulings on Rule 403 questions on
pages 169-71, infra.
c. Curative Admissibility
The doctrine of curative admissibility permits a party to introduce
normally inadmissible evidence in order to respond to specific
evidence that the opponent has introduced previously. It is related to
FRE 403 in that this evidence is needed to respond

166

effectively to the opponent's prior submission. The broadest

statement of the curative admissibility doctrine is as follows:
The rule of “opening the door,” or “curative admissibility,” gives the trial court discretion
to permit a party to introduce otherwise inadmissible evidence on an issue (a) when the
opposing party has introduced inadmissible evidence on the same issue, and (b) when it
is needed to rebut a false impression that may have resulted from the opposing party's
evidence . . . . When a defendant offers an innocent explanation he “opens the door” to
questioning into the truth of his testimony, and the government is entitled to attack his
credibility on cross-examination. A defendant has no right to avoid cross-examination
into the truth of his direct examination, even as to matters not related to the merits of the
charges against him. [United States v. Elfgeeh, 515 F.3d 100, 128 (2d Cir. 2008).]
As you can see, the doctrine permits the court to waive an opponent's
evidentiary objections in order to prevent the opponent from gaining
an unfair advantage.
In Elfgeeh, defendants were charged with operating an illegal
money-transmitting business. There was evidence that some of the
funds, transmitted by defendants from New York to Yemen, were
being paid to groups involved in “tribal wars, blood feuds and
violence” within Yemen. The trial court ruled this evidence
inadmissible under FRE 403 but held that if the defendants
themselves testified that they merely transmitted money to help
Yemeni immigrants send money home to their family and friends, “it
would open the door to allow the government to attempt to show that
the [defendants] sent money instead for bellicose purposes.” Id. at
128. When the defendants made three separate statements that their
money transmittals were to families of their clients, the government
was allowed to ask a defendant “whether he knew that the money he
sent was being used to buy arms and ammunition and was allowed to
submit documentary evidence obliquely referring to such use . . . in
order to attack [the defendant's] credibility.” Id.
Most, but not all, jurisdictions recognize some version of the
curative admissibility doctrine, although there is no Federal Rule of
Evidence dealing with the subject. Byrd v. Maricopa County Sheriff's
Dept., 565 F.3d 1205 (9th Cir. 2009) (plaintiff's videotape initially
excluded under FRE 403 later admitted under doctrine of curative
admissibility after defense counsel mentioned the tape and
suggested it had been edited or destroyed); Henderson v. George
Washington University, 449 F.3d 127, 139 (4th Cir. 2006) (in a
malpractice case, plaintiff's evidence of a report of a similar
procedure on another patient excluded under FRE 403 as confusing
to the jury, but admitted under the curative admissibility doctrine when
the defense relied on the exclusion of the report in cross-examining
the plaintiff's expert, using the court's ruling “not only to shield
themselves from potentially damaging evidence, but also . . . as a
sword to slice through the foundation” of plaintiff's case).

KEY POINTS
1. An objection made under FRE 403 to an item of evidence
requires the trial judge to determine whether admission of the
evidence creates any Rule 403 danger to the jury's decision-
making process and, if so, whether this danger will
substantially outweigh the probative value of the evidence.

167
 2. Probative value refers to the strength of the evidence in
proving an essential element in the case. This is determined
primarily by the judge's estimate of the strength of the
generalizations connecting the evidence to the disputed issue
and by the proponent's need for the evidence.
3. The judge estimates the risk of harm from evidence that bears
a Rule 403 danger by predicting the nature of the jury's
reaction to the evidence, the degree of that reaction, and the
likelihood that the harmful reaction will occur.
4. Because FRE 403's balancing test requires the danger to
substantially outweigh the probative value, even a very
significant risk of danger may not result in exclusion if there
are no alternative or less dangerous means of proving the fact
of consequence. The court will also use a limiting instruction to
reduce the danger in order to admit the evidence.

PROBLEMS
3.6. Return to Problem 3.1, State v. Johnson, at page 148. Does the
question posed to Officer Huston in (a) present any of the Rule
403 dangers? How would you rule on an FRE 403 objection?
3.7. Return to Problem 3.2, Pedroso v. Driver, at page 148. Does
evidence of Driver's testimony in (a) present any of the Rule
403 dangers? How would you rule on an FRE 403 objection?
3.8. In Problem 3.2, what if the plaintiffs request that the jury be
taken to the scene of the accident in order to view Cedar Street
and the gravel shoulder? What arguments could be made in
support of and in opposition to this request under FRE 401 and
403?
3.9. Return to Problem 3.3, United States v. Ray, at page 149. The
prosecution offers the following evidence:
(a) In October 2013, Ray sold 25,000 shares of Rundown
stock one week before a major and abrupt fall in
Rundown's share price.
 (b) In May 2014, Ray purchased 30,000 shares of Rundown
30 days before the company announced the profitable
acquisition of a competitor, an event which caused the
stock price to rise by 25 percent.
Will the defense prevail if it objects to this evidence under
FRE 403?
3.10. K and G were indicted for arson in the burning of a diner that
they owned in Great Neck, New York. The report of the Fire
Marshal's Office concludes that the diner fire had been
intentionally set. The prosecution will prove that K and G
owned two diners; that their diner in Westbury, Connecticut,
operated at a profit; and that the diner in Great Neck sustained
serious losses for several years. The prosecutor wants to
introduce the following evidence: the fact that K and G had not
paid property taxes on the Great Neck diner for several years;
the fact that tax liens had been recorded against the diner;
testimony from a cook at the Westbury diner that K and G
asked him whether he knew anyone who would be willing to
“start a fire.” Are these items admissible? Are they sufficient to
send

168

the case to the jury? What if K and G testify that they were about to
make a profitable sale of the Great Neck diner?
3.11. Carl Smith was arrested at Washington National Airport when
the X-ray machine disclosed a suspicious metallic object in the
paper bag he was carrying. This object was a loaded Beretta
pistol wrapped in red cloth and a pair of pants. Smith was
charged with attempting to board an aircraft with a concealed
weapon. Smith claimed that the pistol was planted in his
shopping bag by someone else at the airport and that he did
not intend to board an airplane because he had no ticket and
no luggage.
To support its claim that Smith was in knowing possession of
the gun, the prosecution offered evidence of Smith's Jamaican
 citizenship, his possession of $450 in cash, and the presence
of marijuana residue in his pants pocket. These facts, it
claimed, showed that Smith met the “drug courier” profile, an
informally compiled abstract of characteristics thought typical of
persons carrying illicit drugs, used to argue reasonable
suspicion in support of drug trafficking stops; further, it argued,
drug couriers frequently carry guns for protection. Should the
district court admit this evidence and permit an FBI agent to
testify as an expert about the drug courier profile and its
relevance to the crime charged?
3.12. Cynthia Richards allegedly slipped and fell on a Halloween
costume in the “seasonal” area of a Kmart store. She claims
that Kmart was negligent in failing to adequately maintain its
store by not locating and picking up the costume before the
accident. Kmart denies negligence, contending that its policy
and practices of maintaining the store were reasonable.
During discovery, a Kmart supervisor testified that the store
had no particular schedule for patrolling the store for cleanup,
but that all employees were trained to pick up clutter promptly
and that this policy is stated in the Handbook given to all
employees. Ken Ceasar, a Kmart customer service employee
on duty the night of Richards's fall, testified that he was in
charge of watching the whole floor, that he had no knowledge
that the costume was in the aisle, that he always walked the
aisles and picked up items that were not supposed to be on the
floor “as soon as he discovered them.” Ceasar also stated that
he had no particular memory of his own actions on the night in
question.
Kmart has filed a motion in limine to exclude a videotape
made secretly in the store by an investigator for Richards. The
videotape was made one year after the incident, during
Halloween season. It is a genuine video, and has not been
altered or edited in any way. It shows merchandise on two
unidentified store aisles that had fallen to the floor, and it shows
Mr. Ceasar ignoring the merchandise and stepping on it, rather
 than promptly removing it. Prepare arguments for Kmart and
for Richards on this motion in limine.
3.13. Denise McCallum is charged with armed robbery for holding
up a convenience store at gunpoint. The police found a .38
caliber, “snub-nosed” revolver in a trash can a block away from
the convenience store, and the store clerk told police that the
robber's gun “looked just like that one.” Consider arguments for
and against an FRE 403 objection to the following evidence
offered by the prosecutor at trial:

169

(a) Testimony of McCallum's roommate that two months

before the robbery, she saw a snub-nosed .38 caliber
revolver in McCallum's bedroom.
(b) Evidence that McCallum was unemployed for six months
before the robbery.
In response to (a) above, consider arguments for and against
an FRE 403 objection to the following evidence offered by the
defense:
(c) Official statistics report that there are known to be at least
25,000 such handguns in the possession of individuals in
the city.

4. Appellate Review of Judicial Discretion Under FRE 403

Application of FRE 403 calls for the exercise of judicial discretion,
meaning that the judge applies criteria and standards that are not
mechanical but require the use of judgment. The trial court makes
judgments that estimate the probability of inferences; that evaluate
the nature, likelihood, and degree of dangers to jury decisionmaking;
and that compare probative value to those dangers. On appeal, these
judgments are reviewed under the abuse of discretion standard,
which is a very deferential standard of appellate review. It means that
appellate courts will tolerate trial court decisions that the appellate
judges would not have made themselves. Reversal is justified only
when the trial court “abuses” its discretion:
 Had any one of us been in a position to exercise the discretion committed to a trial judge
. . . we would have no hesitancy in stating that the decision would have been otherwise;
but as appellate judges we cannot find that the action of the district judge was so
unreasonable and so arbitrary as to amount to a prejudicial abuse of the discretion
necessary to repose in trial judges during the conduct of a trial. [Napolitano v. Compania
Sud Americana De Vapores, 421 F.2d 382, 384 (2d Cir. 1970).]
There are many reasons why appellate courts defer to the trial
courts' judgments under FRE 403. Here are some of them:
(1) Complexity and Uncertainty. The Rule 403 balancing test
requires complex fact-based judgments unique to each case.
Judgments about probative value and the Rule 403 dangers are at
best, as we have just discussed above, rough estimates and
predictions of effect on the jury's decisionmaking. The estimates that
are made in one case may have little bearing in the next. The ultimate
standard of “substantially outweighs” also requires balancing where
there is no calibration for the weighing process, and the standard is
such that precision is not called for. What is “substantial” can vary
greatly among judges: “[T]he district court is engaged in a
'comparison of intangibles' and is thus 'afforded a special degree of
deference.' ” Estate of Moreland v. Dieter, 395 F.3d 747, 755 (7th Cir.
2005).
(2) Competence. The trial judge has more experience than
appellate judges with making judgments of this kind. The trial judge is
also closer to the evidence in the particular case, meaning that the
judge has watched its presentation in the context of the entire trial
and has observed its effect on the particular jury: “Only in an extreme
case are appellate judges competent to second-guess the judgment
of the person on the spot, the trial judge.” Id.

170

(3) Tolerance for Outcomes That Appear Inconsistent. Under an

abuse of discretion standard of review, appellate courts will affirm trial
court outcomes that may appear to be inconsistent, even in cases
that appear to be similar to the appellate court. That is what it means
for the appellate court to “defer” to the trial court's judgment, even
when it (or another trial court) might have decided the Rule 403
question differently. Largely because of the factors of competence,
complexity, and uncertainty, appellate courts may not be able to know
whether outcomes actually are inconsistent, and probably could not
create sufficiently detailed precedent necessary to achieve uniform
and consistent outcomes among trial courts. The contextual facts of
Rule 403 decisions affect the weighing process too greatly.5 The
abuse of discretion standard of review is an acknowledgment of the
limits of the knowledge of an outside reviewer.
Most appellate decisions affirm district courts' FRE 403 decisions,
whether they admit or exclude the disputed evidence. The standard
of review for abuse of discretion is often defined somewhat differently
by the Circuit Courts of Appeal. Here is a clear statement of the
applicable principles: “Under this standard, we will leave rulings about
admissibility of evidence undisturbed unless we are 'left with the
definite and firm conviction that the [district] court . . . committed a
clear error of judgment in the conclusion it reached upon a weighing
of the relevant factors or where it improperly applies the law or uses
an erroneous legal standard.' ” United States v. Lucas, 357 F.3d 599,
608 (6th Cir. 2004). Thus, there are some errors in applying Rule 403
that appellate courts will hold to be errors of law, such as not giving
the terms of the rule their legally correct meaning, Blake v. Pellegrino,
329 F.3d 43, 45 (1st Cir. 2003) (“When . . . the admission or exclusion
of evidence involves a question of law, such as the proper
interpretation of a provision contained in the Federal Rules . . . , we
afford de novo review”), or violating a criminal defendant's
constitutional right to put on witnesses in his defense, United States
v. Turning Bear, 357 F.3d 730, 734 (8th Cir. 2004) (improper exclusion
of opinion testimony about a witness's credibility under Rule 403 held
to violate the defendant's Fifth and Sixth Amendment rights to present
witnesses in his defense).
Some balancing decisions are held to be abuses of discretion when
the results are “clear errors of judgment,” plainly against the logic and
effect of the facts in the case. McQueeney v. Wilmington Trust Co.,
779 F.2d 916 (3d Cir. 1985) (discussed at page 165, supra). And
appellate courts also try to ensure that district courts will engage in
the full consideration of all the Rule 403 factors. See, e.g., Securities
and Exchange Commission v. Peters, 978 F.2d 1162, 1172 (10th Cir.
1992) (failure to consider adequately the possibility of a limiting
instruction, contrary to suggestion in the Advisory Committee Note to
FRE 403, is considered to be significant in finding abuse of
discretion); United States v. McCallum, 584 F.3d 471, 477 (2d Cir.
2009)

171

(the district court gave no explanation for its conclusion under FRE
403; the appellate court held that “[w]ithout the benefit of its
reasoning we are in no position to assume that the court appreciated
the seriousness of the risk that introducing the convictions would
undermine the fairness of the trial.”).
Sometimes appellate review of FRE 403 decisions does create
precedent for district courts to follow. Consider the McQueeney case
discussed at page 165, supra. The two appellate opinions presented
below will give you practice in evaluating probative value and FRE
403 dangers yourself, and in applying the rule's balancing test. You
should ask yourself why the appellate court found an abuse of
discretion, and whether its decision will have precedential effect.

UNITED STATES V. HITT

981 F.2d 422 (9th Cir. 1992)

K , Circuit Judge.
Dale Lee Hitt was convicted of possessing an unregistered machine
gun in violation of 26 U.S.C. §5861(d). The government alleged he
had altered a semiautomatic rifle so it would discharge more than one
shot per trigger pull—the defining characteristic of a machine gun. 26
U.S.C. §5845(b). The rifle had indeed been modified in a way
consistent with the government's theory, though Hitt's lawyer
suggested it had been modified by its previous owner. Some internal
parts usable for machine guns (but not themselves illegal) were found
in a gun case in Hitt's room, but Hitt's lawyer suggested they too
might have come from the rifle's previous owner.
 The key question, though, was whether the rifle would in fact rapid-
fire. The government and Hitt each had their own experts test-fire it:
In the government's test, the rifle did fire more than one shot per
trigger pull, but when Hitt's expert (witnessed by two police officers)
tested it, it didn't. Hitt's expert suggested the gun may have fired
automatically in the government's test because of a malfunction,
perhaps because the internal parts were dirty, worn or defective. In
response, the government introduced a photograph of the rifle which,
it argued, showed the rifle was neither dirty, worn nor defective.
Unfortunately, the photograph showed nothing of the gun's interior.
All the jury could see was the outside, and not very well at that, as the
gun occupied only a small part of the 4” × 6” photograph. The rest
was taken up by about a dozen other weapons—nine other guns,
including three that looked like assault rifles, and several knives—all
belonging to Hitt's housemate. Hitt objected to admission of the
photograph under Fed. R. Evid. 403, but the district court overruled
his objection.
I
A. Under Fed. R. Evid. 402, “[a]ll relevant evidence is admissible,”
except as otherwise provided. We let jurors see and hear even
marginally relevant evidence, because we trust them to weigh the
evidence appropriately. Nonetheless, when the probative value of the
evidence is “substantially outweighed by the danger of unfair
prejudice. . .or misleading the jury,” Fed. R. Evid. 403, the evidence
must be kept out.

172

B. The photograph's probative value was exceedingly small. The

defense theory was that the gun fired as an automatic because the
internal parts were dirty, worn or defective. The prosecution
understood this too: When the prosecutor cross-examined the
defendant's expert, he asked whether there was “exceptional dirt in”
the rifle, and whether there were “worn or dirty parts in that machine.”
But the gun's external appearance reveals nothing at all about its
internal state. Firearms are designed so the internal parts suffer most
of the strain from the discharge. Wear, dirt and defects that affect the
internal mechanism generally have no effect on the firearm's
appearance; it's not uncommon for a gun that looks clean and in
working order to misfire because of dirt or defects inside. Here there
was absolutely no indication that the type of wear, dirt or defect Hitt's
expert was talking about could be seen by inspecting the outside of
the gun.
Moreover, even if the rifle's inside condition were somehow related
to its outside appearance, it's virtually impossible to tell whether the
gun is clean or dirty from the photograph, in which the rifle is seen
from several feet away. The photograph might well have been
excludible under Rule 402 as totally irrelevant, had a Rule 402
objection been made.
C. At the same time, the photograph was fraught with the twin
dangers of unfairly prejudicing the defendant and misleading the jury.
It showed a dozen nasty-looking weapons, which the jury must have
assumed belonged to Hitt. The photograph looked like it was taken at
Hitt's residence: The guns were laid out in an obviously residential
room; the jury knew Hitt was arrested at home, the photograph was
talked about in the same breath as two others identified at trial as
having been taken in Hitt's bedroom. Moreover, there was no one
else the jury could have suspected of owning the guns. Hitt's
roommate, who in fact owned all the other weapons, wasn't even
mentioned during Hitt's trial. Inferring that all the weapons were Hitt's
wasn't just a plausible inference; it was the only plausible inference.
Once the jury was misled into thinking all the weapons were Hitt's,
they might well have concluded Hitt was the sort of person who'd
illegally own a machine gun, or was so dangerous he should be
locked up regardless of whether or not he committed this offense.
Rightly or wrongly, many people view weapons, especially guns, with
fear and distrust. Like evidence of homosexuality, see, e.g., United
States v. Gillespie, 852 F.2d 475, 478 (9th Cir. 1988); Cohn v. Papke,
655 F.2d 191, 194 (9th Cir. 1981), or of past crimes, see, e.g., United
States v. Bland, 908 F.2d 471, 473 (9th Cir. 1990), photographs of
firearms often have a visceral impact that far exceeds their probative
value. See, e.g., United States v. Green, 648 F.2d 587, 595 (9th Cir.
1981) (per curiam). The prejudice is even greater when the picture is
not of one gun but of many.
But the photograph could do more than arouse irrational fears and
prejudices. It could also lead the jury to draw some perfectly logical—
though mistaken—inferences. Hitt's main defense was that he had
the bad luck of owning a rifle that was defective or dirty, or perhaps
had been modified by its previous owner. A jury that thought Hitt
owned almost a dozen guns could very reasonably have viewed this
argument with skepticism. The jurors could have inferred that a gun
enthusiast like Hitt would be able to tell if the gun had been modified
by someone else, or be able to make the modifications himself. Or
they could have thought that someone that

173

interested in guns would naturally keep them clean and in good

working order. Of course, the jury shouldn't have drawn these
inferences, because none of the other guns were Hitt's. Yet the
inferences were entirely plausible once the jury concluded Hitt owned
the whole arsenal.
D. The district judge has wide latitude in making Rule 403
decisions. But this latitude isn't unlimited. Where the evidence is of
very slight (if any) probative value, it's an abuse of discretion to admit
it if there's even a modest likelihood of unfair prejudice or a small risk
of misleading the jury.
The evidence here was not only highly prejudicial and at most
marginally probative—it was also misleading. It's bad enough for the
jury to be unduly swayed by something a defendant did; it's totally
unacceptable for it to be prejudiced by something he seems to have
done but in fact did not. Admitting the photograph, with nothing at all
to keep the jury from being misled—no limiting instruction, no
redaction—violated Rule 403.
II
Having determined there was error, we must next decide whether it
was harmless. There is a conflict in our circuit about the standard of
review for harmless error. Some cases require that we affirm only if
we can say with “fair assurance” that the error was harmless. This
standard seems to have the Supreme Court's blessing. See
Kotteakos v. United States, 328 U.S. 750, 764-65, 90 L. Ed. 1557, 66
S. Ct. 1239 (1946). Other Ninth Circuit cases compel affirmation if it is
“more probable than not” that the error was harmless. See, e.g.,
United States v. Lui, 941 F.2d 844, 848 (9th Cir. 1991). . . .6
We needn't resolve this conflict here, though, because the error
wasn't harmless under either standard. This was a close case: An
expert on one side claimed the gun fired more than one shot per
trigger pull; an expert on the other (corroborated by two police
officers) said it didn't. The photograph may well have made the
difference between acquittal and conviction. We can't say it was more
probable than not that Hitt would have been convicted without the
photograph. A fortiori, then, we can't say with “fair assurance” that he
would have been convicted without it.

NOTES AND QUESTIONS

1. Judge Kozinski's opinion in Hitt relies on several generalizations
to estimate probative value and the danger of unfair prejudice. What
are they? How does Judge Kozinski know they are valid? Were they
the subject of proof at trial? Is there any justification offered for them?

174

2. Did the prosecution need to use the photograph in Hitt to rebut

the suggestion that the interior of Hitt's rifle was dirty or worn? Was
there alternative, less prejudicial evidence available? For example,
where was the rifle itself? Who has the obligation to raise the issue of
minimizing the misleading impact of the photograph?
3. Judge Kozinski also stated a general rule for conducting the
balancing test under FRE 403: “Where the evidence is of very slight
(if any) probative value, it's an abuse of discretion to admit it if there's
even a modest likelihood of unfair prejudice or a small risk of
misleading the jury.” How does this language fit within the table
reproduced on page 161, supra? Does it contradict the FRE 403
requirement that the danger “substantially” outweigh the probative
value?

OLD CHIEF V. UNITED STATES

519 U.S. 172 (1997)

S , Justice.
Petitioner Johnny Lynn Old Chief was arrested in 1993 after a
fracas involving at least one gunshot. He was charged with assault
with a dangerous weapon, using a firearm in relation to a crime of
violence, and with violation of 18 U.S.C. §922(g)(1), which makes it
unlawful for anyone “who has been convicted in any court of a crime
punishable by imprisonment for a term exceeding one year” to
“possess in or affecting commerce, any firearm.”7 In the indictment,
Old Chief was charged with having been convicted of an earlier
assault causing serious bodily injury. Before trial, he requested that
the trial court order the government not to mention any detail
regarding the prior conviction except to state that defendant had been
convicted of a crime punishable by imprisonment exceeding one year.
This was treated as an offer to stipulate and agree that the jury could
be instructed that he had been convicted of such a crime as required
under §922(g)(1). Old Chief contended that Rule 403 rendered the
name and nature of his prior offense unfairly prejudicial, since the jury
was likely to generalize his earlier bad act into bad character, and to
use his character as increasing the probability that he did the bad act
with which he was now charged. The government refused to join in
any stipulation and insisted on its right to prove its case its own way.
The district court agreed, ruling that if the government did not want to
stipulate, it did not have to. At trial, the government introduced a
document regarding Old Chief's prior conviction that showed that on
December 18, 1988, he did knowingly and unlawfully assault Rory
Dean Fenner, said assault resulting in “serious bodily injury” for which
Old Chief was sentenced to five years' imprisonment.
Justice Souter's opinion noted that the jury's potential use of this
prior conviction for a propensity inference would violate FRE 404(b),
and thus the admission of Old Chief's specific prior conviction raised
a risk of unfair prejudice that must be analyzed under Rule 403.

175

As for the analytical method to be used in Rule 403 balancing, two

basic possibilities present themselves. An item of evidence might be
viewed as an island, with estimates of its own probative value and
unfairly prejudicial risk the sole reference points in deciding whether
the danger substantially outweighs the value and whether the
evidence ought to be excluded. Or the question of admissibility might
be seen as inviting further comparisons to take account of the full
evidentiary context of the case as the court understands it when the
ruling must be made. This second approach would start out like the
first but be ready to go further. On objection, the court would decide
whether a particular item of evidence raised a danger of unfair
prejudice. If it did, the judge would go on to evaluate the degrees of
probative value and unfair prejudice not only for the item in question
but for any actually available substitutes as well. If an alternative were
found to have substantially the same or greater probative value but a
lower danger of unfair prejudice, sound judicial discretion would
discount the value of the item first offered and exclude it if its
discounted probative value were substantially outweighed by unfairly
prejudicial risk. As we will explain later on, the judge would have to
make these calculations with an appreciation of the offering party's
need for evidentiary richness and narrative integrity in presenting a
case, and the mere fact that two pieces of evidence might go to the
same point would not, of course, necessarily mean that only one of
them might come in. It would only mean that a judge applying Rule
403 could reasonably apply some discount to the probative value of
an item of evidence when faced with less risky alternative proof going
to the same point. Even under this second approach, as we explain
below, a defendant's Rule 403 objection offering to concede a point
generally cannot prevail over the Government's choice to offer
evidence showing guilt and all the circumstances surrounding the
offense.8. . .
 The first understanding of the Rule is open to a very telling
objection. That reading would leave the party offering evidence with
the option to structure a trial in whatever way would produce the
maximum unfair prejudice consistent with relevance. He could
choose the available alternative carrying the greatest threat of
improper influence, despite the availability of less prejudicial but
equally probative evidence. The worst he would have to fear would
be a ruling sustaining a Rule 403 objection, and if that occurred, he
could simply fall back to offering substitute evidence. This would be a
strange rule. It would be very odd for the law of evidence to recognize
the danger of unfair prejudice only to confer such a degree of
autonomy on the party subject to temptation, and the Rules of
Evidence are not so odd.
Rather, a reading of the companions to Rule 403, and of the
commentaries that went with them to Congress, makes it clear that
what counts as the Rule 403 “probative value” of an item of evidence,
as distinct from its Rule 401 “relevance,” may be calculated by
comparing evidentiary alternatives. The Committee Notes to Rule 401
explicitly say that a party's concession is pertinent to the court's
discretion to exclude evidence on the point conceded.

176

. . . The Notes to Rule 403 then take up the point by stating that
when a court considers “whether to exclude on grounds of unfair
prejudice,” the “availability of other means of proof may . . . be an
appropriate factor.”. . .
Old Chief's proffered admission would, in fact, have been not
merely relevant but seemingly conclusive evidence of the element.
The statutory language in which the prior-conviction requirement is
couched shows no congressional concern with the specific name or
nature of the prior offense beyond what is necessary to place it within
the broad category of qualifying felonies, and Old Chief clearly meant
to admit that his felony did qualify, by stipulating “that the Government
has proven one of the essential elements of the offense.” App. 7. As
a consequence, although the name of the prior offense may have
been technically relevant, it addressed no detail in the definition of the
prior-conviction element that would not have been covered by the
stipulation or admission. Logic, then, seems to side with Old Chief. . .
.
There is, however, one more question to be considered before
deciding whether Old Chief's offer was to supply evidentiary value at
least equivalent to what the Government's own evidence carried. In
arguing that the stipulation or admission would not have carried
equivalent value, the Government invokes the familiar, standard rule
that the prosecution is entitled to prove its case by evidence of its
own choice, or, more exactly, that a criminal defendant may not
stipulate or admit his way out of the full evidentiary force of the case
as the Government chooses to present it.
This is unquestionably true as a general matter. The “fair and
legitimate weight” of conventional evidence showing individual
thoughts and acts amounting to a crime reflects the fact that making a
case with testimony and tangible things not only satisfies the formal
definition of an offense, but tells a colorful story with descriptive
richness. Unlike an abstract premise, whose force depends on going
precisely to a particular step in a course of reasoning, a piece of
evidence may address any number of separate elements, striking
hard just because it shows so much at once; the account of a
shooting that establishes capacity and causation may tell just as
much about the triggerman's motive and intent. Evidence thus has
force beyond any linear scheme or reasoning, and as its pieces come
together a narrative gains momentum, with power not only to support
conclusions but to sustain the willingness of jurors to draw the
inferences, whatever they may be, necessary to reach an honest
verdict. This persuasive power of the concrete and particular is often
essential to the capacity of jurors to satisfy the obligations that the
law places on them. Jury duty is usually unsought and sometimes
resisted, and it may be as difficult for one juror suddenly to face the
findings that can send another human being in prison, as it is for
another to hold out conscientiously for acquittal. When a juror's duty
does seem hard, the evidentiary account of what a defendant has
thought and done can accomplish what no set of abstract statements
ever could, not just to prove a fact but to establish its human
significance, and so to implicate the law's moral underpinnings and a
juror's obligation to sit in judgment. Thus, the prosecution may fairly
seek to place its evidence before the jurors, as much to tell a story of
guiltiness as to support an inference of guilt, to convince the jurors
that a guilty verdict would be morally reasonable as much as to point
to the discrete elements of a defendant's legal fault.

177

But there is something even more to the prosecution's interest in

resisting efforts to replace the evidence of its choice with admissions
and stipulations, for beyond the power of conventional evidence to
support allegations and give life to the moral underpinnings of law's
claims, there lies the need for evidence in all its particularity to satisfy
the jurors' expectations about what proper proof should be. Some
such demands they bring with them to the courthouse, assuming, for
example, that a charge of using a firearm to commit an offense will be
proven by introducing a gun in evidence. A prosecutor who fails to
produce one, or some good reason for his failure, has something to
be concerned about. “If [jurors'] expectations are not satisfied, triers
of fact may penalize the party who disappoints them by drawing a
negative inference against that party.” Saltzburg, A Special Aspect of
Relevance: Countering Negative Inferences Associated with the
Absence of Evidence, 66 Calif. L. Rev. 1011, 1019 (1978) (footnotes
omitted). Expectations may also arise in jurors' minds simply from the
experience of a trial itself. The use of witnesses to describe a train of
events naturally related can raise the prospect of learning about
every ingredient of that natural sequence the same way. If suddenly
the prosecution presents some occurrence in the series differently, as
by announcing a stipulation or admission, the effect may be like
saying, “never mind what's behind the door,” and jurors may well
wonder what they are being kept from knowing. A party seemingly
responsible for cloaking something has reason for apprehension, and
the prosecution with its burden of proof may prudently demur at a
defense request to interrupt the flow of evidence telling the story in
the usual way. . . .
In sum, the accepted rule that the prosecution is entitled to prove its
case free from any defendant's option to stipulate the evidence away
rests on good sense. A syllogism is not a story, and a naked
proposition in a courtroom may be no match for the robust evidence
that would be used to prove it. People who hear a story interrupted by
gaps of abstraction may be puzzled at the missing chapters, and
jurors asked to rest a momentous decision on the story's truth can
feel put upon at being asked to take responsibility knowing that more
could be said than they have heard. A convincing tale can be told
with economy, but when economy becomes a break in the natural
sequence of narrative evidence, an assurance that the missing link is
really there is never more than second best.
This recognition that the prosecution with its burden of persuasion
needs evidentiary depth to tell a continuous story has, however,
virtually no application when the point at issue is a defendant's legal
status, dependent on some judgment rendered wholly independently
of the concrete events of later criminal behavior charged against him.
As in this case, the choice of evidence for such an element is usually
not between eventful narrative and abstract proposition, but between
propositions of slightly varying abstraction, either a record saying that
conviction for some crime occurred at a certain time or a statement
for admitting the same thing without naming the particular offense.
The issue of substituting one statement for the other normally arises
only when the record of conviction would not be admissible for any
purpose beyond proving status, so that excluding it would not deprive
the prosecution of evidence with multiple utility; if, indeed, there were
a justification for receiving evidence of the nature of prior acts on
some issue other than status (i.e., to prove “motive,

178

opportunity, intent, preparation, plan, knowledge, identity, or

absence of mistake or accident,” Fed. Rule Evid. 404(b)), Rule 404(b)
guarantees the opportunity to seek its admission. Nor can it be
argued that the events behind the prior conviction are proper
nourishment for the jurors' sense of obligation to vindicate the public
interest. The issue is not whether concrete details of the prior crime
should come to the jurors' attention but whether the name or general
character of that crime is to be disclosed. Congress, however, has
made it plain that distinctions among generic felonies do not count for
this purpose; the fact of the qualifying conviction is alone what
matters under the statute. . . . The most the jury needs to know is that
the conviction admitted by the defendant falls within the class of
crimes that Congress thought should bar a convict from possessing a
gun, and this point may be made readily in a defendant's admission
and underscored in the court's jury instructions. Finally, the most
obvious reason that the general presumption that the prosecution
may choose its evidence is so remote from application here is that
proof of the defendant's status goes to an element entirely outside the
natural sequence of what the defendant is charged with thinking and
doing to commit the current offense. Proving status without telling
exactly why that status was imposed leaves no gap in the story of a
defendant's subsequent criminality, and its demonstration by
stipulation or admission neither displaces a chapter from a
continuous sequence of conventional evidence nor comes across as
an officious substitution, to confuse or offend or provoke reproach.
Given these peculiarities of the element of felony-convict status and
of admissions and the like when used to prove it, there is no
cognizable difference between the evidentiary significance of an
admission and of the legitimately probative component of the official
record the prosecution would prefer to place in evidence. For
purposes of the Rule 403 weighing of the probative against the
prejudicial, the functions of the competing evidence are
distinguishable only by the risk inherent in the one and wholly absent
from the other. In this case, as in any other in which the prior
conviction is for an offense likely to support conviction on some
improper ground, the only reasonable conclusion was that the risk of
unfair prejudice did substantially outweigh the discounted probative
value of the record of conviction, and it was an abuse of discretion to
admit the record when an admission was available. What we have
said shows why this will be the general rule when proof of convict
status is at issue, just as the prosecutor's choice will generally survive
a Rule 403 analysis when a defendant seeks to force the substitution
of an admission for evidence creating a coherent narrative of his
thoughts and actions in perpetrating the offense for which he is being
tried.
The judgment is reversed, and the case is remanded to the Ninth
Circuit for further proceedings consistent with this opinion.

NOTES AND QUESTIONS

1. Justice Souter's discussion of the “evidentiary richness” and
“narrative integrity” components of probative value reflect the theory
of jury reasoning that we noted

179

in Chapter Two on page 131—that jurors focus at trial on competing

versions of reality, not on whether a formal element of law is true or
false. Considerable research indicates that juries evaluate evidence
within the framework of a story, or narrative account, of the events
central to the case. Jurors start to construct a story at the start of trial,
and then accept or reject evidence in relation to the narratives that
are available to them as the trial continues. At the end of this process,
jurors will usually accept one story as the “best” account of “what
happened” and match it to the verdict definitions in the instructions.
This “story model” of jury decisionmaking is founded on empirical
work of social scientists. A classic work is Nancy Pennington & Reid
Hastie, A Cognitive Theory of Juror Decision Making: The Story
Model, 13 Cardozo L. Rev. 519 (1991). Evidentiary richness and
narrative integrity can be seen as contributing to the quality of an
advocate's story.
Use of these factors in making and reviewing decisions under FRE
403 would not seem to be limited to §922(g)(1) cases. For example,
in United States v. Vallejo, 237 F.3d 1008 (9th Cir. 2001), defendant
Vallejo was charged with illegal importation of marijuana in a car he
was driving from Mexico to the United States. Vallejo claimed that he
did not know that the packages of marijuana were hidden inside the
vehicle. The Ninth Circuit held that it was error for the district court to
exclude Vallejo's evidence of the identity of the person who he
claimed had hidden the drugs in the car, intending to smuggle them
into the United States himself. The court made the point that the need
to satisfy juror expectations added to the probative value of this
evidence. The court wrote: “Vallejo . . . was not allowed to provide an
answer for the jurors' question: 'If defendant did not know there were
drugs in the car and did not place them there himself, who did?' ” Id.
at 1023.
2. Justice Souter's opinion holds that the trial court should have
“discounted” the probative value of the proffered evidence of Old
Chief's actual felony conviction because other evidence—the
stipulation as to his status as a felon—was of equal probative force
and was substantially less prejudicial. What does “discount” mean? Is
this another way of stating that the prosecution did not “need” to
prove the actual conviction, and that the lack of need should be
dispositive in the balancing under FRE 403 under these
circumstances?
3. Despite the Old Chief opinion, some prosecutors continue to offer
evidence of the nature of a defendant's prior felony in cases filed
under 18 U.S.C. §922(g)(1), and some district courts continued to
admit such evidence over a defense offer to stipulate to the
defendant's status as a felon. Appellate courts have found error when
the prior felony would generate the risk of unfair prejudice but in
many cases found the error to be harmless due to the “overwhelming
evidence” of the defendant's unlawful possession of a firearm. See,
e.g., United States v. Harris, 130 F.3d 829, 830 (8th Cir. 1998) (“When
evidence of a defendant's guilt is overwhelming, the Old Chief
violation is harmless.”); Comment, The Undoing of Old Chief:
Harmless Error and Felon-in-Possession-of-Firearms Cases, 48 Kan.
L. Rev. 431, 457 (2000), suggests that the “effect-on-the-verdict”
standard of harmless error replace the “weight of the evidence”
standard, requiring “the judge to consider the proceedings in their
entirety to determine whether the error had a substantial effect on the
jury's decision.”

180

4. Also following Old Chief, parties have offered a wide variety of

stipulations to avoid the admission of evidence that bears the danger
of unfair prejudice. In the majority of cases, trial courts have rejected
such stipulations and appellate courts have refused to extend Old
Chief beyond its holding on the issue of “status” §922(g)(1). See, e.g.,
United States v. Hall, 152 F.3d 381, 401 (5th Cir. 1998) (defendant's
offer to stipulate to the identity of a murder victim and the cause of
death did not render irrelevant photographs of victim's body in a
decomposed state after defendant had buried it); United States v.
Crowder, 141 F.3d 1202 (D.C. Cir. 1998) (defendant's offer to
stipulate to intent element in crime of possession of drugs with intent
to distribute does not render government's evidence of a similar crime
inadmissible to prove intent); United States v. Hammoud, 381 F.3d
316, 342 (4th Cir. 2004) (not error to show the jury excerpts from
tapes found in his home; defendant's stipulation that the tapes were
produced by a terrorist organization did not relieve the government
from its burden of proving that defendant knew that the organization
engaged in terrorist activity; tapes showed speeches by organization
leaders advocating violence). But see United States v. Merino-
Balderrama, 146 F.3d 758 (9th Cir. 1998) (in a prosecution for
possession of child pornography videos, the trial court allowed the
jury to watch the videos; defendant had offered to stipulate to their
pornographic content but denied ever watching them and thus denied
the requisite element of knowing what the videos were. The appellate
court held this was error because the videos were highly prejudicial,
the box covers of the videos were equally probative on the issue of
knowledge since they depicted child pornography, and defendant
admitted he had seen the covers).

C. REFLECTIONS ON RELEVANCE, PROBATIVE VALUE, AND

JUDICIAL DISCRETION
The Federal Rules of Evidence have as their central goal the factually
accurate resolution of disputes that are brought to federal court. This
is not to say that other values do not affect the Rules, as explicitly
stated in FRE 102, or that the search for truth does not accommodate
other values. It is to say, however, that the dominant policy expressed
in the Rules, in the Advisory Committee Notes, in judicial
interpretations, and professional and academic commentary is the
pursuit of factually accurate outcomes.
This policy rests on a belief that disinterested factfinders, such as
jurors, have the capacity to reconstruct prior events by using their
powers of reasoning—by drawing inferences from evidence
presented to them in the courtroom, based on their own generalized
knowledge and experience. To the extent that the evidence presented
is accurate and complete and the jury's generalizations are accurate,
this reasoning process can yield accurate outcomes. The accuracy of
this reasoning process is advanced in no small measure by the
requirement of relevance. As we discussed at the beginning of this
chapter, any evidence that jurors might rationally use in determining
the existence of guilt or liability is relevant and potentially admissible
(unless another rule

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dictates its exclusion), and irrelevant evidence—that is, evidence

that has no rational bearing on the existence of guilt or liability—is
inadmissible.9
The trial system, in short, pursues the search for truth from the
perspective of a correspondence theory of knowledge. It assumes
that things happen and that what happens is knowable by human
beings. The system also assumes that accurate knowledge is
produced through human reasoning—that persons (witnesses) can
coherently communicate information about happenings to
disinterested third parties (jurors) who then will draw accurate
inferences based on that information. You can see that the role of
witnesses and the role of the jury described on page 88, supra, are
grounded in these assumptions.
 These assumptions raise three issues for you to consider as you
study the law of evidence: First, are relevance and probative value
features of evidence that can be known and measured? Second, are
juries rational? Third, how should judicial discretion in admitting or
excluding evidence be regulated? We offer some brief reflections on
each of these questions.

1. Can Relevance and Probative Value Be Measured?

The essence of the Federal Rules' approach to relevance is that
evidence is relevant if it has the capacity to influence a disinterested
person on a fact of consequence. “Influence” in this context is
somewhat vague, though. We know when we have a sense of being
“convinced” or “persuaded” or of being placed in “doubt” by an
argument or by evidence. But must an analysis of the influence of
evidence stop at such an ephemeral point? Some have argued that it
must. See, e.g., Henry M. Hart, Jr. & John T. McNaughton, Evidence
and Inference in the Law, 87 Daedalus 40, 44 (Fall 1958):
The adjudicative facts of interest to the law, being historical facts, will rarely be triable by
the experimental methods of the natural sciences. . . . For the most part the law must
settle disputed questions of adjudicative fact by reliance upon the ambiguous
implications of non-fungible “traces”—traces on human brains and on pieces of paper
and traces in the form of unique arrangements of physical objects.
Perhaps Hart and McNaughton are correct that the law must be
satisfied with evidence in the form of “traces on human brains.” But
must the implications of these traces be ambiguous? There has been
great interest recently in efforts to articulate in a more rigorous
fashion what it means for evidence to have persuasive force. These
efforts have centered primarily on the implications of a theorem of
mathematics known as Bayes's Theorem, which provides a rigorous
method for combining a

182

person's assessment of the probability of an event with new

evidence concerning that event to arrive at a new assessment of the
probability of the event.10
 English mathematician Thomas Bayes (1702-1761) demonstrated
that the following formula is derivable from the axioms of conventional
probability:

This formula expresses that the odds of guilt or liability after evidence
is received are determined by the relationship between the probability
of obtaining the evidence if the person is guilty or liable and the
probability of obtaining the evidence if the person is not guilty or
liable. In other words, to go from a prior assessment of the odds of
liability to an assessment in light of the new evidence requires that
the prior assessment be modified by the likelihood that the evidence
would have been presented at trial if the person is liable as compared
to the likelihood that it would have been presented if the person is not
liable.
Do not let the discussion of probability theory obscure an important
insight here. What makes evidence “relevant” is its capacity to
influence the factfinder. That, in turn, is a function of the probability of
receiving the evidence if the person is liable as compared to the
probability of receiving the evidence if the person is not liable. Take a
simple example. Suppose that in a burglary case, the prosecution
wished to introduce evidence that the defendant does not like the
Chicago Bears. If the defendant is guilty, the probability of receiving
this evidence is a function of the proportion of burglars who are
Chicago Bears fans, which we shall assume is .95 (at least in
Chicago). The probability of receiving the evidence if the defendant is
not guilty is a function of the proportion of nonburglars who are
Chicago Bears fans, and there is no reason

183

to think that proportion would differ from the proportion of burglars

who are fans of the Bears. Thus, the ratio of these probabilities
(.95/.95) is 1.0, and 1.0 multiplied by the prior odds of guilt will result
in no change in those odds. Therefore, this evidence is irrelevant
because it has no impact on the assessment of the odds of guilt. By
contrast, suppose a drop of blood found at the crime scene matches
the burglar but also matches 20 percent of the population. The ratio
of probabilities for this evidence (1.0/ 0.2) is 5. This result, when
multiplied by the prior odds of guilt, makes guilt appear more likely
and thus the evidence is relevant.
We do not suggest that this way of viewing relevance has any value
other than perhaps explaining how some people may evaluate
evidence. Even as an explanatory effort, however, it has serious
limitations. The formula requires that the decisionmaker have a
preliminary assessment of the odds of guilt or liability before the
receipt of an item of evidence that is subjected to Bayesian analysis,
and it is unclear what that should be in our system of trials (especially
criminal trials). Davis v. State, 476 N.E.2d 127, 138 (2d Dist. Ct. App.
Ind. 1985) (In applying Bayes's Theorem, expert witnesses, who
testified to the probabilities of parentage derived from blood test
evidence, properly employed a neutral prior probability (50/50)
instead of a prior probability variable based upon circumstantial,
nontest evidence of the defendants' parentage.). In addition, the
probabilities associated with most evidence will virtually always defy
quantification. More troublesome still, Bayes's Theorem requires that
the decisionmaker evaluate each bit of evidence as it is introduced,
rather than permitting the decisionmaker to hear all the evidence and
deliberate on all of it at the conclusion of the trial process. At trial, by
contrast, jurors are explicitly told not to form any conclusions until all
the evidence is in. The reason for this is the belief that once opinions
are formed, they are hard to change. Individuals will rationalize new
evidence they hear to make it consistent with their preconceptions. To
the extent that this is true, the party first producing evidence would
have a great advantage at trial, since presumably that evidence
would tend to establish that party's case. And, while it may be correct
that if the likelihood ratio is 1 after the correct questions about the
probabilities of obtaining evidence are asked, it is not clear that
correct answers to those questions can be obtained in litigation. Care
must be taken in thinking about relevance and Bayes's Theorem.
Consider evidence that a defendant (charged with bank robbery)
was running from the scene of the bank robbery that took place close
to a train station. Fleeing might mean that the defendant robbed the
bank and was trying to escape. It also might mean that she was trying
to catch a train. Assume that it could be established as an empirically
valid proposition that 70 percent of the people running from the crime
scene are running because of guilt. The probability of obtaining the
evidence of running if the defendant is guilty is .7; the probability of
obtaining the evidence if defendant is innocent is .3. So far, the
prosecution would be able to show the relevance of the evidence of
running. Now suppose that the defendant establishes that 70 percent
of the people near a train station who are running are doing so to
catch a train. Now, is the probability of obtaining the evidence of
running if the defendant is innocent also .7? If so, is the likelihood
ratio under Bayes's Theorem 1? The trouble with relying on this ratio
in litigation is that these are not the only two explanations of people
running

184

that will occur to the jury, and these other explanations could
change the ratio. Many other evidentiary facts in the case, such as
how fast or slow the defendant was running, or what she was
wearing, will also affect the probabilities of each explanation of what
the running means. And, of course, there are very few statements
about the probabilities of human behavior that can be established
with such precision. In most cases, the likelihood ratio cannot be
established definitively, and the judge will admit the evidence, leaving
it up to the jury to interpret or explain it.
An additional limitation with a probabilistic conception is that some
of the relevant evidence admitted at trial overlaps with the theories of
the case or stories being offered by each side. Such “overlapping”
evidence will fit with each side's explanation of what happened, even
though the evidence by itself may not distinguish probabilistically
between the two explanations. Consider, for example, the evidence in
Johnson about the package sent to the defendant by his family and
his failure to receive it. This evidence formed part of each side's
explanation of what occurred and why, and the lawyers each made
use of this evidence to argue that their version of events was more
plausible.
Bayes's Theorem, in short, is an interesting way of thinking about
the idea of relevance, even if it is not completely compatible with the
trial process. It may also provide a useful way to think about probative
value and FRE 403: Evidence is misleading whenever the jury forms
a likelihood ratio that is quite different from the “true” likelihood ratio.

2. Are Juries Rational?

Regardless of whether relevance and probative value can be
measured precisely, suppose you are convinced of the more
fundamental points that there is a reality and that you can know it
based on evidence. Are you as convinced that your fellow human
beings can know it, or do you have doubts about the rationality of the
human species? Even if you are a disinterested observer of events, is
anyone else? How often have you seen a person's perceptions of an
event determined by ideology or wishful thinking? Viewers'
perceptions of the same event can differ dramatically. If that is not an
uncommon occurrence, what are its implications for the social
reconstruction of reality that occurs at trial based on the testimony of
witnesses (whose perception may be affected by factors that are not
rational)?
Moreover, how much faith do you have in disinterested third parties
such as jurors drawing the appropriate inferences about what
happened based on the evidence presented? How different was
student opinion in your class about the credibility of witnesses in the
transcript of the Johnson case in Chapter One? Do people use a
uniform body of generalized knowledge and experience to evaluate
such data? Or are you more impressed with the remarkable
divergence of opinion that constantly seems to follow from the
presentation of information to a group of individuals? Again, does that
increase or decrease your faith in the rationality of the trial process?
Empirical research has also been done on the intellectual strategies
that people use—alone and in groups—to come to conclusions about
disputed facts. The landmark works in this field that may have the
most compelling applications to

185

jury decisionmaking are Michael J. Saks & Robert F. Kidd, Human

Information Processing and Adjudication: Trial by Heuristics, 15 Law
& Socy. Rev. 123 (1980-1981), and Amos Tversky & Daniel
Kahneman, Judgment Under Uncertainty: Heuristics and Biases, 185
Science 1124 (1974). Recent work on the “narrative theory” of jury
decisionmaking includes Nancy Pennington & Reid Hastie, A
Cognitive Theory of Juror Decision Making: The Story Model, 13
Cardozo L. Rev. 519 (1991) and Dan Simon, A Third View of the
Black Box: Cognitive Coherence in Legal Decision Making, 71 U. Chi.
L. Rev. 511 (2004). The following offer good overviews of the
empirical literature on juries: Vidmar & Hans, American Juries: The
Verdict (2007); Shari Diamond, Beyond Fantasy and Nightmare: A
Portrait of the Jury, 54 Buff. L. Rev. 717 (2006). This literature offers
practitioners the opportunity to understand jurors' decisionmaking
strategies, and it offers law reformers the opportunity to improve the
procedures and evidentiary policies underlying our system of trial.
Questions about the validity of the assumption of jury rationality are
of great importance. The outcomes of jury factfinding are always
uncertain. There is no methodology and no objective point of view
within the system of trials to test whether the jury has correctly
decided the ultimate facts.11 To the extent that one has doubts about
jury rationality, one should have serious reservations about continuing
our current system of trial. On the other hand, to the extent one has
greater faith in our capacity to understand and communicate our
knowledge about the world in a rational manner, then one may feel
somewhat more sanguine about the model of jury reasoning. And
whatever degree of skepticism you possess, you must also consider
what alternatives there are to our reliance on this model.12

3. How to Regulate Judicial Discretion?

The exercise of judicial discretion required by FRE 403 allows the trial
court considerable freedom to admit or exclude evidence. Appellate
courts treat lower-court Rule 403 decisions with great deference, and
appellate findings of abuse of discretion are infrequent. As you study
the major rules of exclusion, you will see that these rules—the
character rule, the other relevance rules, the hearsay rule, the best
evidence rule, and the rules of privilege—do not grant such explicit
discretion to the trial court. Rather, these exclusionary rules, and their
exceptions, are so-called bright-line rules. Some of these, such as the
rule prohibiting the use of extrinsic evidence to prove

186

specific acts that impeach a witness's truthfulness, are truly “bright

line.” Others control the admission/exclusion decision with doctrinal
definitions and categories.
The categorical rules operate in two ways. The hearsay rule, for
example, establishes categories that require judicial factfinding; the
character rule establishes categories of permissible uses of specific
acts that require the trial judge to identify particular noncharacter
theories of relevance. Under both types of categorical rules, the trial
judge's task is to determine whether the proffered item of evidence
fits within a doctrinal category. This decision of whether the item “fits”
usually is determinative of admission or exclusion. Thus, discretion—
the estimation and balancing of probative value and dangers to jury
decisionmaking—is not exercised under these categorical rules. This
is not because the categorical terms are applied mechanically; they
require very careful thinking by the trial judge. But it is a different kind
of thinking, and it can be treated less deferentially by appellate courts
if they treat the application of the categorical term as a question of
law.
As you study these major exclusionary rules, you should consider
the justifications for their bright-line or categorical nature as opposed
to the discretionary standards of Rule 403. Think in terms of how best
the exclusionary policy of the rule can be enforced; which type of rule
best serves the goals of accurate outcomes, fairness to the parties,
and an efficient judicial system; and which type of rule judges are
most competent to decide and to review.

ASSESSMENTS
A-3.1 FRE 401-02. Defendant is on trial for burglary. An eyewitness testifies that she saw
someone wearing a Chicago Cubs baseball hat running from the crime scene on the night of
the burglary. The prosecution attempts to introduce evidence that Defendant is an avid
Chicago Cubs fan. Defendant objects that this evidence is irrelevant. How should the court
rule on the objection, and why?
A. Overruled. A reasonable jury could think that a fan of the Chicago Cubs is more likely to
own a Cubs hat than someone who is not a fan, which would thus make it more likely
that Defendant was the person seen running from the crime scene, which would make it
more likely that he committed the crime.
B. Overruled. Background information about criminal defendants is always admissible.
C. Sustained. Just because Defendant is a fan of the Chicago Cubs, this does not mean
that he owns a Cubs hat.
D. Sustained. It is unreasonable to think that Cubs fans are more likely to commit burglary
than people who are not Cubs fans.
A-3.2. FRE 401-02. Defendant is on trial for battery. The prosecution attempts to introduce
testimony from the alleged victim about injuries he suffered after being pushed by Defendant
at an outdoor concert. Defendant objects that this testimony

187
is irrelevant because injury is not an element of battery and therefore not something the
prosecution must prove. In arguing for admissibility, what is the prosecution's best argument?
A. Injuries are always relevant in criminal cases.
B. The evidence is relevant because the injuries make it more likely that Defendant
committed battery (i.e., used unlawful force or violence against the victim).
C. The evidence is relevant because it will make the victim a more sympathetic witness.
 D. FRE 401-02 allow for the admissibility of irrelevant res gestae evidence.
A-3.3. FRE 403. TRUE or FALSE: When a trial judge thinks that the probative value and the
potential for unfair prejudice of an item of evidence are counterbalanced, the court should
exclude the evidence.
A-3.4. FRE 403. Plaintiff sued Defendant for negligence, alleging Plaintiff was injured after
falling on stairs outside of Defendant's business. At trial, Plaintiff attempted to introduce
testimony from a witness, a friend of Plaintiff, to testify that he fell on the same stairs six
months before Plaintiff's accident. The evidence was offered to prove Defendant should have
known that the stairs were potentially dangerous. The trial judge excluded the testimony after
concluding that the differences between the two incidents were likely to confuse the jury, and
the probative value was low because of the witness's friendship with Plaintiff. The trial court
commented, “I doubt this prior incident even took place.” In reviewing the trial court's ruling to
exclude the evidence, how is the appellate court likely to decide the issue?
A. There was no error because the trial court engaged in proper FRE 403 balancing.
B. There was no error because appellate courts must review all trial court FRE 403 rulings
deferentially.
C. The trial court abused its discretion because it weighed the credibility of the witness in
assessing probative value. Because of this error, the judgment must be reversed.
D. The trial court abused its discretion because it weighed the credibility of the witness in
assessing probative value. The judgment will be reversed only if the appellate court
concludes the error was not harmless.
A-3.5. FRE 403. Which statement most accurately describes the U.S. Supreme Court's
holding in Old Chief?
A. Parties must accept any reasonable stipulations offered by the other side.
B. The prosecution must accept all offers to stipulate by criminal defendants.
C. When a criminal defendant's status as a felon is an essential element, the prosecution
must accept an offer to stipulate on the issue.
D. Parties can admit irrelevant evidence when it is important for the moral force of the
stories they are presenting at trial.

188

ANSWERS
A-3.1. The best answer is A. Because it would be reasonable for a jury to think that fans are
at least slightly more likely than nonfans to own the hat, and therefore that Defendant is at
least slightly more likely to be guilty, the evidence meets the minimal test for relevance under
FRE 401. B is incorrect because not all background information about criminal defendants is
admissible. Such evidence might be excluded as irrelevant, under FRE 403, or under several
other rules we will discuss in subsequent chapters. C is incorrect because the
generalizations that underlie theories of relevance do not have to establish conclusions with
certainty: The evidence has to make it only slightly more likely that he owns a Cubs hat (not
establish with certainty that he owns one). D is incorrect because the theory of relevance
does not depend on this generalization.
A-3.2. The best answer is B. Even though injury is not an essential element, evidence that
an injury occurred makes it more likely that force or violence was used against the victim and
thus that a battery occurred. Therefore, the evidence is relevant. A is incorrect because
sometimes evidence of injury may be irrelevant (for example, a case involving the sale of
illegal drugs to an undercover officer). C is incorrect because evidence that makes a witness
appear sympathetic to the jury will not necessarily be relevant. Rules governing evidence
relating to witness credibility will be discussed in Chapter Seven. D is incorrect because FRE
402 states that “[i]rrelevant evidence is not admissible.” Courts may admit res gestae
evidence but only when it is relevant (typically, for understanding other evidence) and
otherwise admissible under the rules.
A-3.3. FALSE. FRE 403 states that evidence should be excluded only when probative value
is “substantially outweighed” by one or more of the FRE 403 dangers. Therefore, when the
two sides of the balancing are similar, the evidence should be admitted.
A-3.4. The best answer is D. Although appellate courts review FRE 403 balancing
deferentially, the trial court abused its discretion by weighing the credibility of the witness.
When assessing probative value for purposes of FRE 403, the trial court should assume the
jury finds the witness's testimony credible and then estimate its probative value. Therefore, A
and B are incorrect. Even though the trial court committed an error, the appellate court will
reverse only if it concludes that the error affected the outcome (i.e., was not harmless).
Therefore, C is incorrect.
A-3.5. The best answer in C. In Old Chief, the Court held that the prosecution had to accept
the defendant's offer to stipulate to his status as a felon, for purposes of 19 U.S.C. §922(g)
(1). In general, however, the Court explained that parties, including the prosecution, may
refuse offers to stipulate when doing so would disrupt their evidentiary presentations.
Therefore, A and B are incorrect. D is incorrect because Old Chief did not assert that parties
can introduce irrelevant evidence because of narrative considerations. This aspect of the
opinion concerned how to assess probative value when a party has more than one item of
relevant evidence for the same fact of consequence.

1. Conversations in the cockpit of an airliner just before crashing were not relevant to the
mental state and psychic damages of the passengers because the passengers could not
hear the conversations. Pregeant v. Pan Am. World Airways, Inc., 762 F.2d 1245, 1249 (5th
Cir. 1985) (error harmless).
2. Testimony by an expert that it was “possible” but “not probable” that the defendant's
Nike sneaker was the source of an inculpatory footprint was excluded as “lacking probative
value” under Rule 401. United States v. Ferreira, 821 F.2d 1, 5 (1st Cir. 1987). Whether this
ruling was rightly decided under FRE 401 would depend on the nature of the generalization
that the expert relied on to find a “possibility.”
3. For an interesting discussion of the Knapp case and the appropriate manner of
analyzing the questions it raises, see Richard D. Friedman, Route Analysis of Credibility and
Hearsay, 96 Yale L.J. 667, 679 (1987).—E .
4. California Evidence Code §352, on which FRE 403 is based, contains essentially the
same balancing test:
The court in its discretion may exclude evidence if its probative value is substantially
outweighed by the probability that its admission will (a) necessitate undue consumption
 of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of
misleading the jury.
5. In countering the prosecution's argument that one of its prior opinions conclusively
established how a Rule 403 balancing should come out, the Ninth Circuit replied:
[The prior opinion] doesn't help the government because it did not purport to set a
minimum level for probative value under Rule 403. Nor could it, as probative value must
be weighed against offsetting factors, such as delay, which differ in every case.
Moreover, probative value itself can only be determined in light of the evidence and
arguments of a particular case. [United States v. Crosby, 75 F.3d 1343, 1348 (9th Cir.
1996).]
6. This isn't just wordplay: A 55% likelihood that the error was harmless qualifies as “more
probable than not,” but it's hardly a “fair assurance” of harmlessness. Kotteakos defines “fair
assurance” as absence of a “grave doubt,” 328 U.S. at 765, and a 45% chance that the
defendant would have been acquitted but for the error certainly seems like a “grave doubt.”
While we obviously don't deal in such precise probabilities, “more probable than not” and “fair
assurance” can, in some cases, lead to conflicting results.
7. “[A] crime punishable by imprisonment for a term exceeding one year” is defined to
exclude “any Federal or State offenses pertaining to antitrust violations, unfair trade
practices, restraints of trade, or other similar offenses relating to the regulation of business
practices” and “any State offense classified . . . as a misdemeanor and punishable by a term
of imprisonment of two years or less.” 18 U.S.C. §921(a)(20).
8. While our discussion has been general because of the general wording of Rule 403, our
holding is limited to cases involving proof of felon status. On appellate review of a Rule 403
decision, a defendant must establish abuse of discretion, a standard that is not satisfied by a
mere showing of some alternative means of proof that the prosecution in its broad discretion
chose not to rely upon.
9. The relevance requirement in the Federal Rules may be contrasted with the formal
system of required proof in some continental legal systems. For example, a conviction for a
serious crime could only be had upon the presentation of two eyewitnesses or a confession.
Circumstantial evidence would not do. But strong circumstantial evidence constituted a “half-
proof” that legitimated the use of torture in order to extract a confession. For discussions, see
John Langbein, Torture and the Law of Proof: Europe and England in the Ancien Régime
(1977); L. Jonathan Cohen, Freedom of Proof, in Facts in Law (William L. Twining, ed.,
1983); Mirjan Damaska, The Death of Legal Torture, 87 Yale L.J. 860 (1978).
10. For what follows we are indebted to Professor Richard Lempert's work on Bayes's
Theorem, which can be found in Richard Lempert, Modeling Relevance, 75 Mich. L. Rev.
1021 (1977). That work was heavily influenced by Professor John Kaplan's article, Decision
Theory and the Factfinding Process, 20 Stan. L. Rev. 1065 (1968), which in turn was heavily
influenced by Vaughn C. Ball, The Moment of Truth: Probability Theory and Standards of
Proof, 14 Vand. L. Rev. 807 (1961). Some commentators have proposed alternatives to
Bayes's Theorem, see Jonathan L. Cohen, The Probable and the Provable (1977), while
others have critiqued its application to jury reasoning, among them William L. Twining & Alex
Stein, Evidence and Proof, The International Library of Essays in Law and Legal Theory
(1992); Ronald J. Allen, Rationality, Algorithms, and Juridical Proof: A Preliminary Analysis, 1
Intl. J. of Evidence and Proof 253 (1997); Ronald J. Allen & Michael S. Pardo, The
Problematic Value of Mathematical Models of Evidence, 36 J. Legal Studies. 107 (2007);
Craig R. Callen, Notes on a Grand Illusion: Some Limits on the Use of Bayesian Theory in
Evidence Law, 57 Ind. L.J. 1 (1982); David Kaye, Naked Statistical Evidence, 89 Yale L.J.
601 (1980); Nancy Pennington & Reid Hastie, A Cognitive Theory of Juror Decision Making:
The Story Model, 13 Cardozo L. Rev. 519 (1991).
11. The results of DNA testing may come as close to “objective certainty” as our system
can provide. Numerous persons convicted of rape or murder have been freed from
incarceration on the basis of subsequent DNA testing (not available at the time of trial) of
body samples, such as hair and semen, found on the victim. The testing virtually excludes
the defendant as the source of the samples.
12. Additional critical perspectives on the assumptions and policies that underlie the
Federal Rules of Evidence can be found in Kenneth W. Graham Jr., There'll Always Be an
England: The Instrumental Ideology of Evidence, 85 Mich. L. Rev. 1204, 1219-1220, 1227-
1234 (1987); Rosemary C. Hunter, Gender in Evidence, Masculine Norms vs. Feminist
Reforms, 19 Harv. Women's L.J. 127 (1996); Kit Kinports, Evidence Engendered, 1991 U. Ill.
L. Rev. 413; Michael L. Seigel, A Pragmatic Critique of Modern Evidence Scholarship, 88
Nw. U. L. Rev. 995, 998 (1994); Frederick Schauer, On the Supposed Jury Dependence of
Evidence Law, 155 U. Pa. L. Rev. 165 (2006); Todd E. Pettys, The Emotional Juror, 76
Fordham L. Rev. 1609 (2007).
189

CHAPTER FOUR
FOUNDATION
There is a universal principle of evidence law that no evidence is
admissible until it is first shown to be what its proponent claims that it
is. This principle is sometimes called “foundation.” Except where
expert testimony is involved (see Chapter Nine), the foundation
principle requires that the party offering evidence must show that the
item of evidence is rooted in (1) firsthand knowledge (2) of a specific
fact that (3) is logically connected to the offering party's theory of the
case. In the Johnson case the judge gave the jury a standard
instruction that “[e]vidence consists of testimony of witnesses,
writings, material objects, or anything presented to the senses and
offered to prove the existence or nonexistence of a fact.” Generally
speaking, before an offered item of evidence of any type will be
admitted, the offering party must affirmatively show its foundation,
unless that foundation is readily apparent.
Practitioners, courts and commentators universally acknowledge
foundation as a fundamental principal of evidence law, and use the
word “foundation” to describe its various aspects. Oddly, the word
foundation doesn't actually appear in any federal rule of evidence.
Instead, the principle of foundation is implicit in a constellation of
rules, primarily FRE 602, 901, 902, 701, and 104(b).
This chapter covers the rules that establish what foundation is
required for admission of various types of evidence. Section A
discusses the necessary foundation for introducing testimony from
witnesses, the firsthand knowledge requirement of FRE 602. Section
B presents the various foundational requirements for documents and
other objects, collectively known as “exhibits.” These are set out in
FRE 901 and 902. Section C focuses on FRE 104, the rule
distinguishing foundation questions from preliminary fact questions
that trigger evidence exclusion rules. Section D concerns the cluster
of rules commonly known as “the best evidence rule” (FRE 1001-
1008).

190

A. FOUNDATION FOR WITNESSES: CREDIBILITY AND THE

FIRSTHAND KNOWLEDGE REQUIREMENT

A fundamental attribute of our litigation system is that the facts of

disputed cases must be established primarily through the testimony
of witnesses who recount their relevant firsthand knowledge.
Moreover, these witnesses are generally required to appear
personally in court, where the trier of fact—the jury in a jury trial, or
the judge in a bench trial—can assess their credibility while
absorbing the factual information they provide. These fundamental
attributes of live, firsthand testimony and factfinder control over
credibility questions are reflected in FRE 601 and 602.

1. FRE 601
RULE 601. COMPETENCY TO TESTIFY IN GENERAL
Every person is competent to be a witness unless these rules provide otherwise. But in
a civil case, state law governs the witness's competency regarding a claim or defense
for which state law supplies the rule of decision.

2. Explanation of FRE 601

The first sentence of FRE 601 abolishes all categorical qualifications
and disqualifications for witnesses to be allowed to testify. Common
law evidence rules and numerous state statutes previously imposed
rigid rules of “competency” that kept certain categories of persons off
the witness stand entirely. Persons whom judges and legislators
thought were categorically untrustworthy were deemed
“incompetent” to testify at trial. Persons interested in the case,
including parties, could not testify. Spouses were incompetent to
testify for or against a spouse. Atheists were categorically held to be
incompetent, as were felons, young children, the mentally ill, and, in
many jurisdictions, nonwhites. It was assumed that they either
possessed a motive for distorting the facts in favor of their interest,
or suffered defects of character, youth, or mental capacity that
created risks of untrustworthiness.
FRE 601 is extremely important as an expression of a fundamental
principle of modern evidence law: that the primary authority and
responsibility for determining the credibility of witnesses lies with the
trier of fact. A core concern of this policy is to protect the jury's role
from judicial encroachment and thereby to safeguard the parties'
right to trial by jury. Judge-made categorical rules deeming
witnesses incompetent to testify due to credibility concerns are no
longer permitted, by implication, under FRE 601. (Likewise, FRE 603
abolishes the moral qualification inherent in the former requirement
of taking an oath—swearing before God—by allowing witnesses to
take a secular “affirmation” to tell the truth.) Qualities that might raise
doubts about a witness's testimonial qualities can be brought out
during the examination of the witness, as impeachment. You'll study
impeachment of witnesses in Chapter Seven. The

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Federal Rules of Evidence, and most modern state evidence

codes, permit the jury to decide whether such status or interest
affects a witness's credibility.
Exceptions. The second sentence recognizes an exception for
state-created categories of incompetency for state-law claims tried in
federal court. FRE 605 and 606 recognize a narrow exception to the
general rule of witness competence by prohibiting the presiding trial
judge and members of the sitting jury from testifying in the case at
issue. These prohibitions are established not because of doubts
about the trustworthiness of such witnesses, but because of the
procedural complications and the potentially unfair prejudicial effect
such testimony would be likely to have on the (other) jurors. But
apart from the judge and the jury, people who witnessed relevant
events cannot be prevented from testifying solely because of their
status or their interest in the case.
Testimonial Competence May Be Challenged on Individual
Basis. Although the Advisory Committee Note to FRE 601 states
that “[n]o mental or moral qualifications for testifying as a witness are
specified,” federal case law has recognized the authority of trial
judges to entertain individual challenges to the mental competency
of witnesses who are “so impaired in some manner that they cannot
give meaningful testimony” or who can't understand the duty to
testify truthfully. See, e.g., United States v. Ramirez, 871 F.2d 582,
584 (6th Cir. 1989); see also Cal. Evid. Code §701. Child witnesses
can raise troublesome issues of competence with regard to their
ability to remember events and to relate them accurately and
truthfully. A federal statute establishes a presumption of competency
for children who are victims of crimes of abuse and who have
witnessed crimes against others. 18 U.S.C. §3509(c). A competency
examination may be held only if compelling reasons exist and only
upon motion by the opposing party and an offer of proof of
incompetency. See United States v. Allen J., 127 F.3d 1292, 1296
(10th Cir. 1997).

3. FRE 602
RULE 602. NEED FOR PERSONAL KNOWLEDGE
A witness may testify to a matter only if evidence is introduced sufficient to support a
finding that the witness has personal knowledge of the matter. Evidence to prove
personal knowledge may consist of the witness's own testimony. This rule does not
apply to a witness's expert testimony under Rule 703.

4. Explanation of FRE 602

Rule 602 sets out the personal knowledge requirement for witnesses
at trial. The first sentence states the requirement and describes the
evidentiary showing necessary to meet it. The second sentence tells
us how that requirement can be easily satisfied. The third sentence
tells us that the rule does not apply to expert witnesses.
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Personal Knowledge. Personal knowledge means firsthand

knowledge acquired directly by perception through one of the five
senses. Typically, this will involve perception through the senses of
sight or sound, but in theory any of the five senses could be the
basis for observation of a relevant occurrence. Because personal
knowledge is based on perception, the witnesses who provide such
testimony are often called “percipient witnesses.”
Personal or firsthand knowledge is to be contrasted with
speculation and hearsay. Speculation refers to a witness offering
more or less plausible theories or hypotheses based on generalizing
rather than direct perception. For example, a witness who comes
onto the scene of a car accident at an intersection sees a red car
with its front end smashed at a right angle into the rear passenger
door of a blue car. At trial, the witness could testify based on
firsthand knowledge of the relative positions of the two cars and the
appearance of damage. This would meet the personal knowledge
requirement of FRE 602. But suppose she goes on to testify, “The
red car must have run a red light—otherwise I don't see how it could
have hit the blue car in the side like that.” That testimony would be
objectionable speculation—plausible, perhaps, but not something the
witness knows based on actual observation. Instead, she surmises it
based on general knowledge about cars and intersections.
Hearsay is a bit more complicated. Information acquired second
hand, from the statements or reports of others, is not personal
knowledge and doesn't meet the requirement of FRE 602, even if it
is highly reliable. Testimony offering such secondhand information
will trigger the hearsay rule. The general rule excluding hearsay
(FRE 802) can be seen as a close relative of the firsthand
knowledge requirement. But while hearsay evidence is subject to a
general rule of exclusion, there are many exceptions; as a result, a
lot of what appears to be secondhand information can be admitted at
trial. Does this mean that the hearsay exceptions are also exceptions
to FRE 602? Not exactly. Generally speaking, a witness who testifies
to the statement or report of another person must have firsthand
knowledge of the statement or report, even if not of the information it
contains. But you can set this problem to one side for now, until you
get to your study of the hearsay rule in Chapter Eight.
Evidence Sufficient to Support a Finding. The first phrase of
FRE 602 tells us that a witness must have personal knowledge of
what he testifies about. But the witness's personal knowledge is itself
an evidentiary question. In other words, there must be some
evidence that the witness did perceive firsthand what he's testifying
about. The phrase “evidence sufficient to support a finding” sets out
the evidentiary standard for that fact.
What is evidence sufficient to support a finding? (For ease of
reference, we will use the abbreviation “ESSF”.) It means enough
evidence on which a reasonable jury could find that the fact in
question is more probably than not true. It's the same standard as
that used in a civil case, on a motion for summary judgment. Could a
reasonable jury find this fact by a preponderance of the evidence?
Putting it another way, could a reasonable jury find that it is more
probably than not true that this witness has firsthand knowledge? If a
reasonable jury could believe, based on the evidence, that the
witness saw what he said he saw or heard what he claims to have
heard, then this requirement is met.

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The question of whether there is evidence sufficient to support a

finding of firsthand knowledge should be treated by the judge in a
similar way to questions of summary judgment. Because the finding
is ultimately for the jury, ESSF must consist of admissible evidence.
The judge is not supposed to decide witness credibility or resolve
conflicts in the evidence. Even though it is the same as the civil
summary judgment standard, the ESSF standard applies to Rule 602
in both civil and criminal cases. Deciding that there is ESSF on the
question of firsthand knowledge simply submits the question to the
jury. The jury may believe that the witness has firsthand knowledge,
but doesn't have to.
 A witness's own testimony asserting firsthand perception will
usually suffice to establish personal knowledge for admissibility
purposes. The judge cannot disregard the witness's testimony of
firsthand perception based on a credibility determination or because
the judge finds contradicting evidence more persuasive: Credibility
and factual dispute resolution are for the jury. (There is perhaps a
very limited exception for inherently incredible testimony. For
example, a judge might be justified in excluding testimony of a
witness who claims to have x-ray vision.) There is also a practical
dimension to taking the witness's own word for it. If a second witness
—“Witness 2”—were needed to establish or corroborate Witness 1's
claim of personal knowledge, then Witness 2 would have to have
firsthand perception of Witness 1's firsthand perception; and a third
witness would have to testify to Witness 2's firsthand perception,
creating an infinite regress. Thus, as a practical matter, if a witness
makes a plausible claim of having firsthand knowledge, it must in
most instances be assumed to be true by the judge for admissibility
purposes.
Finally, it is important to note that FRE 602 does not actually call
upon the jury to make an express and specific “finding” about the
witness's firsthand knowledge. The rule is directed to the parties and
the judge to ensure that evidence sufficient to support a
(hypothetical) finding of the witness's firsthand knowledge has been
presented. If the jury ultimately decides to believe a witness's
firsthand testimony, it implicitly “finds” that the witness has firsthand
knowledge. If the jury is not persuaded that the witness in fact had
personal knowledge, it issues no specific finding or statement to that
effect—it simply discounts that witness's testimony when weighing all
the evidence during its deliberations. And if the jury believes that the
witness actually had firsthand knowledge of the events, but
described them incorrectly on the witness stand—due to poor
memory or lying—the jury will discount the witness's testimony and
the question of firsthand knowledge will be moot.
Exception for Expert Witnesses. Expert witnesses are expressly
exempted from coverage of FRE 602 and its personal knowledge
requirement. As you'll see in Chapter Nine, expert witnesses are
called at trial to offer information and opinions that are often not
based on firsthand knowledge of the litigated events. Returning to
the car accident example, an expert witness might very well be
allowed to offer an opinion that the red car probably ran the red light,
based on expert knowledge and analysis of the positions of the two
cars after the collision, without having directly observed the collision
as it occurred.

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5. FRE 602: Practical Applications

In practice, laying a foundation for firsthand knowledge under FRE
602 is very straightforward. Either the witness has personal
knowledge based on firsthand sense perception of the matter in
question, or she does not. If the witness did not perceive the matter
firsthand, there is no set of questions and answers that can finesse
the witness's inability to satisfy the personal knowledge requirement.
On the other hand, if the witness did perceive the matter firsthand,
all that need be done is to have the witness explain how she came to
perceive it. ESSF of personal knowledge can be established simply
by having the witness explicitly or implicitly answer the question,
“How do you know?” The witness's answer need only either state or
imply “because I perceived it with my senses.” A simple “I saw it”
may be all that's needed. Even testimony from which firsthand
knowledge could be inferred—such as, “I was standing right at the
intersection when the accident occurred”—could be enough to
establish ESSF of firsthand knowledge. The jury can decide
ultimately to disbelieve that the witness “saw it,” but admitting the
evidence means that the jury will hear and consider it. More often
than not, FRE 602 is satisfied without any special formalities. A good
direct examination allows the witness to tell a coherent story, which
should invariably place the witness at the scene in a position to
observe relevant events. Trial lawyers who get into trouble by
overlooking the FRE 602 foundation can simply lay the foundation by
asking, “How do you know?” or “What did you see (hear, etc.)?”
For the sake of clear illustrations, we've been describing the
personal knowledge requirement as it applies to percipient witness
observation of events or occurrences, such as a car accident.
Certainly, much testimony takes the form of describing such
incidents, but that's not the only form. Any relevant fact that can be
perceived with the senses can be the subject of percipient witness
testimony. For example, if a spoken statement is relevant—“we have
a deal” in a contract dispute, for instance—anyone who heard the
statement could potentially testify to it as a percipient witness.
The firsthand knowledge principle of Rule 602 gives you an
important insight about how to put together a case at trial or in
pretrial investigation or discovery. In many cases you will know of, or
at least suspect, the existence of certain facts relevant to your case
through secondhand sources. In such instances, FRE 602 tells you
that your task is to find a witness with firsthand knowledge of that
fact—someone who perceived it with her senses. Otherwise, you
may not have admissible evidence to prove the fact.
The firsthand knowledge requirement of FRE 602 also explains the
basis for a general problem with trials. As discussed in Chapter Two,
each party in a trial will try to present a coherent and persuasive
narrative of liability or nonliability for the crime or civil claim. The
coherent narrative is usually conveyed in the opening statement. But
once the evidence presentation phase begins, that narrative is
chopped up into bits, typically out of chronological sequence, as one
witness follows another, telling a piece of the whole story. This
piecemeal presentation of facts is a necessary consequence of the
firsthand knowledge requirement: Each witness can tell only that part
of the story about which she has personal knowledge. Typically in
litigated cases,

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there is not one witness who knows all the facts of the case
firsthand. Thus, FRE 602 explains the need for opening statements
at trials. Opening statements, which are told by lawyers with
secondhand knowledge of the case and are not deemed evidence,
are a way to accommodate the factfinder's need to understand facts
through coherent stories, while still maintaining the trial system's
strong preference for evidence based on firsthand knowledge.

KEY POINTS
1. FRE 601 abolishes prior prohibitions against categories of
persons from testifying as witnesses. Questions going to the
credibility of a witness are for the trier of fact to determine on
an individual basis.
2. FRE 602 requires that witnesses must have personal
knowledge of the facts about which they testify. Personal
knowledge means firsthand knowledge acquired directly by
perception through one of the five senses. (Such witnesses
are often called “percipient witnesses.”) Personal knowledge
excludes speculation, as well as information acquired second
hand, through the statements of others (hearsay). Expert
witnesses are exempt from this rule.
3. The party eliciting the testimony must present evidence
sufficient to support a finding of the witness's personal
knowledge. Evidence sufficient to support a finding (“ESSF”)
means enough evidence on which a reasonable jury could
find that the witness more probably than not has firsthand
knowledge. The jury is not asked to make a specific finding: it
merely takes the matter into account in its deliberations.
4. ESSF of firsthand knowledge can be shown simply by having
the witness expressly or impliedly state that she saw or heard
the matter in question. It often comes out naturally through
direct examination that elicits clear testimony from the
witness.
5. FRE 602 tells you that your task in pretrial discovery or
investigation may often be to find a witness with firsthand
 knowledge of a fact you want to prove, even though you may
already know that fact through secondhand sources.

PROBLEMS
4.1. Reconsider the evidence offered in problem 3.13 (page 168)
as well as in the Hitt case. Who has firsthand knowledge of
the evidence to be able to testify to it, under FRE 602? Identify
a witness and draft a series of direct examination (i.e.,
nonleading) questions to establish that witness's personal
knowledge.
4.2. Review the testimony by Officers Huston and Van Berg in the
Johnson case concerning the injuries they claimed they
received in the struggle with Johnson (pages 8 and 23, supra.)
Did the officers speak from personal knowledge? Would you
object to any of their testimony if you were the defense? Could
you lay a proper foundation under Rule 602 if you were the
prosecutor?

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B. FOUNDATION FOR EXHIBITS

In addition to witness testimony, parties convey facts to the jury by

presenting documents and other tangible objects, known collectively
as exhibits. The foundational requirements for exhibits are set forth
in FRE 901 and 902.
The primary focus of this section will be on FRE 901. As noted
above, the word “foundation” does not appear in FRE 901 (or any
other evidence rule). Instead, the rule speaks of “authenticating” or
“identifying.” Moreover, FRE 901 does not mention the word
“exhibits.” Instead, the rule addresses the authentication and
identification of “an item of evidence.” This language indicates that
the principles set out in FRE 901 extend beyond exhibits to other
foundation questions. But for the present, our concern is with the
extent to which FRE 901 governs the foundation for exhibits.

1. FRE 901
RULE 901. AUTHENTICATING OR IDENTIFYING EVIDENCE

(a) In General. To satisfy the requirement of authenticating or identifying an item of

evidence, the proponent must produce evidence sufficient to support a finding that the
item is what the proponent claims it is.
(b) Examples. The following are examples only—not a complete list—of evidence
that satisfies the requirement:
(1) Testimony of a Witness with Knowledge. Testimony that an item is what it is
claimed to be.
(2) Nonexpert Opinion About Handwriting. A nonexpert's opinion that handwriting
is genuine, based on a familiarity with it that was not acquired for the current
litigation.
(3) Comparison by an Expert Witness or the Trier of Fact. A comparison with an
authenticated specimen by an expert witness or the trier of fact.
(4) Distinctive Characteristics and the Like. The appearance, contents, substance,
internal patterns, or other distinctive characteristics of the item, taken together with
all the circumstances.
(5) Opinion About a Voice. An opinion identifying a person's voice—whether heard
firsthand or through mechanical or electronic transmission or recording—based on
hearing the voice at any time under circumstances that connect it with the alleged
speaker.
(6) Evidence About a Telephone Conversation. For a telephone conversation,
evidence that a call was made to the number assigned at the time to:
(A) a particular person, if circumstances, including self-identification, show that
the person answering was the one called; or
(B) a particular business, if the call was made to a business and the call related
to business reasonably transacted over the telephone.
(7) Evidence About Public Records. Evidence that:
(A) a document was recorded or filed in a public office as authorized by law; or

197
(B) a purported public record or statement is from the office where items of this
kind are kept.
(8) Evidence About Ancient Documents or Data Compilations. For a document or
data compilation, evidence that it:
(A) is in a condition that creates no suspicion about its authenticity;
(B) was in a place where, if authentic, it would likely be; and
(C) is at least 20 years old when offered.
(9) Evidence About a Process or System. Evidence describing a process or
system and showing that it produces an accurate result.
 (10) Methods Provided by a Statute or Rule. Any method of authentication or
identification allowed by a federal statute or a rule prescribed by the Supreme Court.

2. Explanation of FRE 901

FRE 901(a) sets out the foundational requirement that must be
shown to get an exhibit admitted into evidence. A party offering
evidence must present facts that (1) indicate what the proponent
claims the exhibit to be, and (2) are “sufficient to support a finding”
that the exhibit is indeed what the proponent claims. FRE 901(b) lists
examples of recurring foundation issues, most (but not all) relating to
exhibits, and illustrating the kinds of facts that would satisfy the
foundation requirement, at least in part.
FRE 901(a), the core of the rule, is stated in somewhat abstract
terms. To help you understand it, we will break it down and give
examples.
What the Exhibit Is Claimed to Be. Although the title of the rule
speaks of “identifying” and “authenticating” evidence, the text of the
rule uses the significant word “claims.” This suggests a very
particular form of identification. It is not enough, when offering an
exhibit into evidence, to identify it as “a gun” or “a beer can.” Exhibits
are not simply random objects, but rather have specific meanings in
the context of the case. Instead, the proponent of the evidence must
make a claim about how the exhibit fit into the events underlying the
case. “This is the gun that was used by the defendant when
committing the robbery in question.” “This is the can of beer that the
defendant drank just a few minutes before the car accident.” The
“claim” about an item of evidence referred to in FRE 901 is in effect a
statement showing that the exhibit is relevant, and how it is relevant.
Evidence Sufficient to Support a Finding. As with FRE 602, the
standard for establishing the foundation for an exhibit is evidence
sufficient to support a finding, or ESSF. There must be ESSF that the
offering party's claim about the exhibit is (more probably than not)
true. This supporting evidence about the exhibit might be offered at
the time the exhibit is offered into evidence, or it might come from
other evidence already admitted in the case. The supporting
foundation evidence must be admissible, since the test asks whether
there is sufficient evidence to support a finding by the trier of fact.
Thus, for example, a party cannot establish foundation for an exhibit
by relying on inadmissible hearsay. As with any other kind of proof,
the

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foundation evidence can be direct or circumstantial. For example,

evidence that the gun being offered into evidence is the one used by
the defendant in the armed robbery might consist of testimony that it
had defendant's fingerprints on it and was found in a dumpster a
block away from the crime scene the morning after the robbery.
How is evidence sufficient to support a finding determined? The
process is the same as determining ESSF for the firsthand
knowledge of a witness under FRE 602, which, again, is analogous
to the civil summary judgment standard. ESSF means enough
evidence of a fact that a reasonable jury could find that fact to be
probably true. The judge will not assess credibility in making this
determination, but assume that the witnesses supplying the
foundation facts are testifying truthfully. (The jury has the prerogative
to decide otherwise and disregard the testimony after it has been
admitted into evidence.) Thus, in the hypothetical just discussed, if
the judge thinks that a reasonable jury could find the gun to have
been used by the defendant in the robbery based on testimony that
the gun bore the defendant's fingerprints and was found in the
nearby dumpster the next morning, then the ESSF standard has
been satisfied, and sufficient foundation has been laid to admit the
gun into evidence.
Like the civil summary judgment context, ESSF is in theory a
burden of production—meaning that the party offering an exhibit has
an affirmative obligation to make the evidentiary showing that the
claim about the exhibit is probably true. The opposing party can
object that an offered item of evidence lacks foundation, taking one
of two different approaches to making the objection. First, the
opposing party may simply argue that the foundation evidence is
insufficient to support the required finding (e.g., that the gun
belonged to the defendant). Second, the opposing party might offer
contrary evidence. (The procedure for doing so is discussed below.)
But as with summary judgment, if the offer of contrary evidence
raises a factual dispute that a factfinder could reasonably resolve
either way, the exhibit must be admitted and the foundation question
ultimately resolved by the trier of fact. Putting this another way, once
the offering party has presented ESSF that the claim about the
exhibit is probably true, the exhibit should be admitted (assuming
that no exclusionary rules apply to the exhibit, like hearsay). But
admission of the exhibit does not bar the opposing party from
presenting evidence and argument to the jury that the exhibit is not
what the proponent claims (e.g., the gun was not the defendant's).
Moreover, courts have consistently held that the sufficiency standard
“does not erect a particularly high hurdle. . . . Indeed, the proponent
of the evidence is not required to rule out all possibilities inconsistent
with authenticity, or to prove beyond any doubt that the evidence is
what it purports to be. Rather, a court may find proper authentication
merely upon a showing that a reasonable juror could find in favor of
authenticity or identification.” CA, Inc. v. Simple, Inc., 2009 U.S. Dist.
LEXIS 25242, at *49 (E.D.N.Y.).

3. FRE 901—Practical Applications: The Problem of Incomplete

Foundations
We've seen that FRE 901's requirement to show that an item of
evidence “is what the proponent claims it is” requires showing that
the fact is logically connected to the

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offering party's theory of the case. The FRE 901 foundation rule can
be restated in the following terms: A complete foundation for an item
of evidence consists of all facts necessary to show the relevance of
the offered evidence. This definition of foundation is theoretically
correct, and useful for understanding the underlying concept of
foundation. But theoretically complete foundations raise practical
problems, and as a result, practitioners and judges frequently skip
over them in practice. It's important to understand both the fact that
this occurs, and the reason why this occurs. In this section, we'll
examine those questions and, at the same time, explain the
procedure for establishing exhibit foundations.
a. Basic Procedure: Offering an Exhibit Through a Foundation Witness
The first thing to know about the procedure for laying the
foundation for an exhibit is this: Pretty much everything you've seen
in courtroom scenes on TV and in movies about the handling of
exhibits is wrong. The courtroom drama A Few Good Men is typical.
Tom Cruise, representing two marines charged with homicide in a
court martial (a tribunal that is supposed to adhere to the FRE),
waves a piece of paper in the air. He says that after his clients were
arrested, the barracks room of the victim, Private Santiago, was
sealed off and searched. He tells us that the paper is an inventory of
Santiago's closet, and then reads off a long list of clothing items—
numbers of pants, shirts, boots, socks, etc.
But in real court, lawyers are not permitted, on merely their own
say-so, to supply the information identifying an exhibit. There must
be “evidence sufficient to support a finding” that the exhibit is what
the proponent claims—whether an accurate inventory of the contents
of Private Santiago's closet, or anything else. And as judges instruct
juries in every trial in every jurisdiction in the United States,
“statements of counsel are not evidence.” (See, e.g., the transcript of
the Johnson trial, at page 69).
What this means is that ESSF of foundation facts must be
presented in the same manner as any other evidence: by witnesses
with firsthand knowledge of the facts they testify to. While the FRE
recognize certain exceptions (see FRE 902, discussed below), the
general rule is that an exhibit must be introduced through the
testimony of a percipient witness. You might think of this foundation
witness as a sort of evidentiary “sponsor” for the exhibit. Thus for
example, ct. kaffee would have needed to call a witness, such as a
person who actually observed the contents of Santiago's closet, and
wrote up the inventory. (Since that would have been tedious for
moviegoers, the filmmakers dispensed with it.)
This approach to foundation is suggested in FRE 901(b)(1).
Although FRE 901(b)(1) seems to suggest that “Testimony of a
Witness with Knowledge. . . . that an item is what it is claimed to be”
is only one of a menu of options for providing foundations, it is better
to think of it as a restatement of the general rule combining FRE 602
(the firsthand knowledge requirement) and FRE 901(a), the basic
foundation requirement. With a few exceptions, foundation must be
provided by the testimony of a witness (or witnesses) with firsthand
knowledge that the item is what the proponent claims.

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Once a witness with firsthand knowledge of the relevant foundation

facts has been called to the stand, establishing the foundation for the
exhibit need not be all that complicated. Many trial practice
handbooks provide numerous sample foundation-witness
examinations. But don't be fooled into thinking that there are litanies
of magic words that must always be uttered, and that these litanies
differ for each different type of exhibit—as if the foundation for each
exhibit were its own magic spell. Remember, all foundations are
shown by ESSF that the exhibit is what the offering party wants to
claim that it is. And remember too that witnesses are required by
FRE 602 to testify from personal knowledge.
This means that on direct examination, most exhibit foundations
can be established by asking some variation of two simple
questions: (1) “What is this?” and (2) “How do you know?” The
“what-is-it/how-do-you-know” approach will generate 90 percent of
the foundation examinations you will ever need. Let's try applying
this to the inventory of Private Santiago's closet. What is our claim
about that sheet of paper? It is an inventory or list of items found in
Private Santiago's closet the morning after his homicide; and it is
accurate. So the direct examination would go like this:
 [Tom Cruise]: I show you [the witness] what has been marked as Defense Exhibit 2 for
identification. What is this?
The Witness: It's an inventory of items found in Private Santiago's
closet.
Q. How do you know?
A. Because I wrote it.
Q. Is the inventory accurate?
A. Yes.
Q. How do you know?
A. Because I carefully looked at every item in Santiago's closet and wrote it down.
[Tom Cruise]: Your Honor, I move exhibit 2 into evidence.
How hard is that? Note that the foundation is a kind of story about
the exhibit, and one that the party offering the exhibit would want the
jury to hear anyway. The foundation explains not only what the
exhibit is, but vouches for its accuracy and identifies the original
source of the information.
The only formalities that are not organically linked to telling the jury
a persuasive story are marking the exhibit for identification and
moving it into evidence. Marking the exhibit for identification is a
necessary housekeeping detail. It allows the court and the parties to
keep track of the exhibit through the trial, and to make clear
references to it for the record on appeal. (A reference merely to “this”
in a transcript is ambiguous, and it may be easier to say “Exhibit 2”
than “the inventory of Santiago's closet.”) Moving the exhibit into
evidence signals to the judge that the offering party believes he has
met his FRE 901 burden of ESSF and allows the judge to rule on it.
It also signals to opposing counsel that a foundation objection, which
would have been premature up to that point, should be made now if
at all. If the judge admits the exhibit into evidence, it becomes part of
the trial record. The jury may be allowed to examine it in the
courtroom, and it will be given to the jury along with the other
admitted exhibits to examine in the jury room during deliberations.

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b. Partial Foundations and Connecting Up
Difficulties often arise with foundation evidence owing to the
application of the firsthand knowledge requirement to foundation
witnesses. As discussed in connection with FRE 602, party
narratives at trial are chopped into pieces due to the personal
knowledge requirement: Witnesses can tell only that part of the story
they know from firsthand sense perception. This same problem can
also affect foundation evidence, which after all constitutes a mini-
narrative about an item of evidence. In other words, it is frequently
the case that no single witness is capable of providing the entire
evidentiary foundation for an exhibit through firsthand knowledge. In
practice, a partial foundation will be sufficient to gain admission of an
exhibit if the balance of the evidence—the additional evidence
needed to meet the ESSF threshold—has been previously
introduced or is promised to be introduced later in the trial.
There are two situations in which partial foundations are treated as
sufficient. The first is a widely recognized situation, and is referred to
by courts and practitioners as “connecting up” or “conditional
admissibility.” The second situation is not widely acknowledged, and
does not have a name; we will refer to that situation as simply
overlooking the incompleteness of the foundation.
Conditional Admissibility: “Connecting Up.” “In [some] cases it
is customary to permit [the offering party] to introduce the evidence
and 'connect it up' later.” Huddleston v. United States, 485 U.S. 681,
690 n.7 (1988). This customary practice is called “connecting [or
linking] up” or “conditional admissibility.” See FRE 104(b). When an
exhibit is introduced into the case through the testimony of a witness
who can provide only an incomplete foundation, the judge may admit
the exhibit into evidence “conditionally”—that is, on the condition that
the offering party will complete the foundation through subsequently
presented evidence. The offering party represents to the court—
promises, in essence—to “connect up” the exhibit to the theory of the
case through the anticipated further evidence.
For example, suppose the prosecution seeks to introduce into
evidence a bag of cocaine allegedly sold to a government informant
by the defendant. The informant can testify that he paid money to the
defendant, for which he received a package of cocaine, completely
wrapped in duct tape so that the contents could not be seen. But
suppose he handed the package over to the police without ever
having opened it; he therefore doesn't know for sure whether it
contained cocaine or some other powdery substance. The police
officer received a duct-taped package from an informant and was
told that it was purchased from the defendant. The officer opens the
package and finds a white powdery substance, from which he sends
a sample to the crime lab. The officer doesn't know whether the
substance is cocaine or something else, and he lacks firsthand
knowledge of who sold it to the informant, not having seen the
handover. Finally, the crime lab chemist knows that white powder
given him by the police tested positive as cocaine, but she has no
personal knowledge of how it came into the police officer's
possession.
As you can see from this example, none of the three witnesses can
testify to a complete foundation for the exhibit—that it is a package
of cocaine sold by the defendant to the informant. Each witness can
testify only to a piece. The crime lab

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chemist testifies that the substance is cocaine; the officer testifies

that the substance was received from the informant and that the
officer sent a sample to the chemist; and the informant testifies that
the defendant sold him the taped package. The problem of the
incomplete foundation is the same no matter the order in which the
witnesses are called to testify.
Suppose the first witness to be called is the informant. He might be
asked: “Do you recognize this package? What is it? How did you get
it? What did you do with it after you left the scene?” The informant
can testify that he gave money to the defendant and got the package
in return, and that he later handed off the package to the police
officer. If the prosecutor moves the package into evidence, the
defense can object that the package is irrelevant, because there is
no evidence that there was any cocaine in the package. Or defense
counsel can object that the exhibit lacks foundation, because there is
not ESSF that it was a package of cocaine. (As you can see, the two
objections are essentially the same.) You can play the scenario out
and make the pertinent foundation objections if the first witness is
the police officer, or the chemist. (Take a moment, and try this.)
At this juncture, the court has two options. First, it can deny
admission of the exhibit until the foundation is complete. The cocaine
package will be admitted after the third of the three witnesses has
testified, because by then there should be ESSF that the exhibit is
what the prosecution claims—a package of cocaine sold by the
defendant to the informant.
Second, the prosecutor can promise to the court that she will
subsequently connect up the exhibit to the case through the
remaining foundation evidence—here, the testimony of the other two
foundation witnesses. The court can accept this promise and admit
the package of cocaine after the first (or the second) of the three
witnesses testifies, on the condition that the prosecutor follows
through with the additional evidence. If the full foundation evidence
never materializes, the court can subsequently exclude the evidence
—the condition of further foundation evidence having gone
unfulfilled. (In some cases, if the conditionally admitted evidence
were prejudicial enough to the defendant, and the prosecutor fails to
connect up, the court could declare a mistrial.) This latter option is
what is meant by “conditional admissibility” of the evidence.
Reducing the “Claim” Not an Option. It is important to note that
the offering party usually can't finesse an incomplete foundation by
reducing the “claim” about the exhibit. Suppose the first witness to
testify is the crime lab chemist, who says, “I tested a sample of white
powder provided to me by Detective Thompson. The sample,
marked 'Case No. 15-241,' tested positive as cocaine.” The
prosecutor moves the cocaine into evidence. Defense counsel
objects that the exhibit is irrelevant and lacks foundation. It won't
suffice at this point for the prosecutor to say, “But your honor, I just
want to prove that it was cocaine. I'm not trying to prove it had
anything to do with the defendant (at least not yet).” The testimony is
not ESSF that this particular sample had anything to do with the
defendant. Indeed, because there is a lot of cocaine in the world,
and the jury knew this fact before the trial started, as a matter of
common knowledge, proof of the existence of cocaine is not by itself
relevant.

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So here, the prosecutor's effort to finesse a foundation problem by

shrinking her purported “claim” about the exhibit necessarily fails.
Her claim about the exhibit must be nothing less than that it was the
cocaine sold by the defendant to the informant. The “claim” under
FRE 901 is not something that can be crafted or reshaped to match
the testimony of a particular witness at a particular moment in the
trial. Rather, it is the claim that has to be made in order to establish
the relevance of the exhibit. That claim is dictated by the offering
party's theory of the case, and can't be manipulated at will to gain
admissibility on an incomplete foundation.
Overlooked Incomplete Foundations. Connecting up is a widely
acknowledged and recurring situation that has a name and a
procedural solution. The evidence will be admitted with an
incomplete foundation, or it will be temporarily excluded until the
foundation has been completed.
A second situation involving incomplete foundations is also a
recurring one, but it is not widely acknowledged and does not have a
name. In many instances, the foundation is not complete, but the
court will fail to see the problem or will consciously ignore it. In these
situations, the facts supplying a complete foundation are already in
the case, or they have been implicitly promised by the very nature of
the claim brought. In one sense, you could practice trial law
successfully without thinking about this problem, since judges and
opposing counsel are likely to overlook it. The reason we discuss it is
that, by understanding it, you'll have a better grasp of foundation as
a concept and avoid some of the pitfalls and confusion that judges,
lawyers, and scholars sometimes fall into, by mistaking incomplete
for complete foundations.
 The rule drafters have contributed to this problem. FRE 901(b)
purports to list examples of “evidence that satisfies the [foundation]
requirement.” But we can see that that's not quite true—that at least
some of the examples could be incomplete foundations that do not
fully satisfy the requirement of FRE 901(a). Consider the example in
FRE 901(b)(5), stating that foundation can be laid for a voice
(presumably on an audio recording or phone call) by “[a]n opinion
identifying a person's voice—whether heard firsthand or through
mechanical or electronic transmission or recording—based on
hearing the voice at any time under circumstances that connect it
with the alleged speaker.”
Suppose that a defendant is being tried for conspiring to distribute
narcotics. The prosecution offers a tape recording of the following
phone conversation: Speaker 1 says “Yes?” Speaker 2 says, “It's
me.” Speaker 1 replies, “Let's do it.” The prosecutor claims that
Speaker 1 is the defendant, and that “let's do it” is a directive to
Speaker 2 to buy a shipment of narcotics with Speaker 1's money.
The prosecution offers a witness who is familiar with the defendant's
voice through years of acquaintance, and the witness says that the
voice of Speaker 1 is the defendant's. Such testimony seemingly
satisfies the example in FRE 901(b)(5). It is ESSF to identify the
voice on the recording as the defendant's—which is probably all that
the drafters of FRE 901(b)(5) intended to convey by their example.
But the evidence is hardly ESSF to show that the defendant saying
“let's do it” is a green light to make a large drug buy—as opposed to,
say, answering a trivia question about Cole Porter. The complete
foundation must entail sufficient context so that a reasonable jury
could find that “let's do

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it” was a directive to buy drugs, which in this example would

require the testimony of other witnesses.
As noted above, incomplete foundations might sometimes be a
question of linking up. But it is noteworthy that FRE 901(b) does not
mention the possibility of connecting up to complete the foundation
evidence; it says its examples are sufficient foundations. We think
the best explanation of this is that in many cases the missing
foundation evidence has already been either admitted into the case
or else has been implicitly promised by the theory of the case
identified in the party's opening statement. In the above example, the
prosecution may already have identified Speaker 2 as the
defendant's henchman who made a series of narcotics buys on
behalf of the defendant based on terse, encoded commands.
Perhaps this evidence came in during the course of presenting
evidence on the basic narrative of defendant's alleged guilt as a
narcotics dealer. At this stage in the trial, the context for “let's do it”
might be sufficiently clear that neither the judge nor opposing
counsel find it necessary to question the completeness of this limited
foundation testimony: merely, that Speaker 1's voice is the
defendant's.
Incomplete foundations are often overlooked when the complete
foundation requires reference to consequential case facts that are
closely linked to the essential elements of the claim. (These are facts
designated “FOC(EE)” in the diagrams throughout the book.) To take
another example: The defendant is charged with armed robbery, and
the prosecution's theory of the case, as indicated in his opening
statement, is that the weapon used by the defendant was an
automatic pistol. The prosecution calls the first two witnesses, a
police officer and a forensic expert, who testify respectively that an
automatic pistol was found in a dumpster near the crime scene the
next morning and that it had defendant's fingerprints on it. But at this
point in the trial, there has been no evidence that the defendant
actually committed a robbery—the prosecution plans to have the
victim testify last, for tactical reasons. Technically speaking, the fact
that the defendant pointed this gun at the victim is necessary to
complete the prosecution's full foundational claim about the gun. But
that claim closely overlaps with an essential element in the case—it
is an FOC(EE). In that situation, the judge and the opposing counsel
might feel that the missing foundation facts “go without saying” for
purposes of admitting the gun in evidence. The prosecutor has
implicitly promised, with his theory of the case, to present evidence
showing that the defendant pointed a gun at the victim. Otherwise,
there would be no basis for the robbery charge and the case would
have to be dismissed. In such a situation, the technical
incompleteness of the foundation would probably be overlooked in
practice.
The important point is this: The fact that, in practice, the judge or
opposing counsel might not demand more foundation does not mean
that “Speaker 1 is the defendant” or “this is defendant's gun” are
complete or adequate foundations in themselves.

4. FRE 901—Practical Applications: Procedural Steps

Some aspects of the procedure for admitting an exhibit into evidence
under FRE 901 have been discussed, but it is worth putting them all
together here in a step-by-step guide.

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Step One: The Claim. First, figure out the “claim” about the
exhibit. What is the story about the exhibit that makes it relevant—
that makes it fit the offering party's theory of the case? The claim
need not entail every fact known about the exhibit, but rather the
most pared down story of the exhibit, all those facts strictly
necessary to show its relevance.
Step Two: The Witness. Second, figure out the witnesses who
have firsthand knowledge of the foundation facts you've just
identified. Does one witness have all the relevant knowledge, or will
you need more than one witness to lay a complete foundation? If
more than one witness is required, determine whether those other
facts will already have been presented before you try to introduce
the evidence—in which case, your foundation will be complete—or
whether, instead, those other facts will come later. In the latter
instance, you'll have to say that you will “connect up” the foundation,
and you'll probably ask for conditional admission of the exhibit.
 Step Three: Marking the Exhibit. Third, identify the exhibit for the
record. The
traditional approach is to ask the court clerk to “mark” the exhibit “for
identification” with a sequential exhibit number. The clerk will literally
place a sticker on the exhibit saying “Plaintiff's Exhibit no. 10” or
some such. Many courts now require that exhibits be identified and
marked for identification by the parties, before the trial begins. This
saves time during the trial.
Step Four: Showing the Exhibit. Now show the exhibit to the
witness. For the record, narrate what you're doing. (E.g., “I'm
showing you [showing the witness] what has been marked as
plaintiff's Exhibit 10.”)
Step Five: Laying the Foundation. Fifth, lay the foundation
through questions to the foundation witness, who, again, must have
firsthand knowledge of facts relating to the exhibit. On direct
examination, the foundation questions will be some variant of “What
is it?” and “How do you know?” The precise questions will depend on
the details of steps one and two, above.
Thus far, our examples and discussions have assumed that
exhibits are always offered through friendly witnesses called by the
offering party—and hence, require open-ended direct examination
questions. But, in fact, any party can introduce an exhibit through
any witness called by any party, as long as the witness has firsthand
knowledge. You can use an adverse witness, or the other side's
witness to lay a foundation. This means that, in some instances, you
will lay a foundation on cross-examination (or an adverse or hostile
direct examination). This will permit you to ask leading questions,
which makes the foundation questioning even easier. As the
questioning lawyer, you simply tell the witness the foundation facts
about the exhibit with the expectation of getting affirmative answers.
Instead of “What is it?” and “How do you know?” you ask: “Exhibit 10
is a tape recording of a voice saying 'let's do it.'—true? And you
recognize the voice as the defendant's—right? You know the
defendant's voice, because you've known him for over ten years—
correct?”

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Step Six: Moving the Exhibit. When you, as offering party,

believe the foundation is complete, you move the exhibit into
evidence. “Your honor, I move plaintiff's Exhibit 10 into evidence.”
Step Seven: Objection, Ruling, Counterevidence. The motion to
admit the exhibit is a signal to the opposing party to make any
pertinent objections to the foundation or relevance of the evidence.
Since a complete foundation consists of all facts strictly necessary to
make the exhibit relevant, the failure to present a complete
foundation will often mean that whatever the exhibit has been shown
to be is not relevant to the case. Where the offered foundation
evidence fails to establish the claim about the evidence, the
technically correct objection is that the exhibit lacks foundation. (E.g.,
the evidentiary “claim” is that the exhibit is cocaine sold by the
defendant to the government informant, but the supporting evidence
is limited to the lab chemist's testimony that “this is some cocaine.”)
Where the offering party makes a claim that is insufficient (for
example, the government says, “we are simply claiming this is some
cocaine”), the technically correct objection is that the exhibit is
irrelevant. But in practice, there are no magic words, so long as the
basic point is conveyed, and objecting on foundation or relevance
grounds should suffice—the two objections are interchangeable, as
a practical matter.
The contents of an exhibit normally should not be shown to the jury
before the exhibit is admitted in evidence. Thus, for example, a
document should not be read to the jury until its foundation has been
established and the document admitted. Likewise, a video or audio
recording should not be played to the jury before its admission in
evidence. With certain kinds evidence, this general rule is not
practical. Items of so-called real evidence, like a gun or a bag of
cocaine, may have to be shown to the witness in order to lay the
foundation, and the jury will see it before it is formally admitted. If the
opposing counsel thinks it would be unfairly prejudicial for the jury to
see the exhibit, it may be appropriate to ask the court to conduct the
initial foundation inquiry outside the presence of the jury—provided,
of course, that there is a good faith argument that the proper
foundation cannot be laid. The rule providing for such mini-hearings
outside the presence of the jury is FRE 104(c).
Objecting to foundation prematurely, before the offering party has
had the chance to complete her foundation questions, should lead to
the objection being overruled. That's why the step of moving the
exhibit into evidence functions as a sort of cue to the opposing party
to make a foundation objection. On the other hand, since contents of
an exhibit normally should not be shown before the exhibit is
admitted, opposing counsel has to be on the alert for premature
disclosure to the jury. If the offering party tries to disclose the
contents to the jury before completing the foundation, the opposing
party can object to lack of foundation.
Even if the offering party provides evidence constituting a complete
foundation, the opposing party can try to counter that evidence. The
most direct way to do this would be to ask to cross-examine the
foundation witness before the court rules on admission of the exhibit.
The opposing party might also try to present affirmative
counterevidence—for example, a witness who says that someone
other than the defendant sold the package of cocaine to the
informant. The problem here is that

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the ESSF standard, like the civil summary judgment standard,

does not allow the court to make credibility rulings or resolve factual
disputes. Thus, in the example just given, it would be for the jury to
decide which witness to believe—the government informant, or the
defense witness. In cases of a factual dispute, where a reasonable
jury could decide the question either way, the ESSF standard has
been satisfied. Only if the rebuttal evidence somehow negates the
foundation evidence beyond reasonable dispute should a court rule
that foundation has not been established. Assuming that the ESSF
standard has been satisfied, and the evidence admitted, the jury will
be allowed to hear and consider the evidence on both sides and
ultimately decide for itself whether the exhibit is indeed what the
proponent claims.
Streamlined Exhibit Procedures. Traditionally, the above steps
are handled at trial, during the witness examination phase. However,
there is a growing trend to handle some of these matters prior to
trial. It has long been common for federal and state courts to require
that parties exchange lists before trial of the exhibits they intend to
use, at least in civil cases. Nowadays, some court rules require that
the exhibits be marked for identification prior to trial, and some even
specify that the parties state their objections to exhibits in writing
prior to trial. The goal of such rules is to resolve as many of such
objections as possible prior to empaneling the jury, thereby
streamlining the trial.

KEY POINTS
1. FRE 901 is generally considered the rule governing
foundation for exhibits. FRE 901(a) provides that a party
offering an item of evidence (its proponent) must present
evidence sufficient to support a finding (ESSF) that the item is
what the offering party claims it is.
2. The “claim” about the exhibit under FRE 901(a) comprises all
facts necessary to show that the offered item is relevant
under the offering party's theory of the case. A complete
foundation is a showing, by ESSF, of all the facts that make
up the claim about the exhibit.
3. ESSF that the exhibit is what its proponent claims is evidence
sufficient for a reasonable jury to make such a finding. The
supporting evidence must come from witnesses with firsthand
knowledge, and must itself be admissible. The judge does not
determine credibility, but asks whether a reasonable jury
 could make the finding, assuming the witnesses are testifying
truthfully.
4. If one witness can't provide a complete foundation, the
offering party must either point to other facts already in the
record or else should ask for conditional admission of the
exhibit subject to “connecting up” the foundation—completing
it with subsequent evidence.
5. In some instances, particularly where the missing facts are
closely connected to the essential elements of the case and
were promised in opening statement, the court is likely to
overlook incompleteness of the foundation.

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PROBLEMS
4.3. In the Hitt case, page 171 supra, how did the prosecution
authenticate the photograph that included Hitt's rifle? Who do
you think the foundation witness was?
4.4. Return to Problem 3.3, United States v. Ray, at page 149. For
each item of evidence or alleged fact below, identify the
various possibilities for laying a proper foundation under FRE
901. Note that there may be more than one approach for each
item of evidence. Also, think about this from the standpoint of
investigating the case: What evidence would you want to
gather before trial in order to introduce the evidence at trial?
Once at trial, what different witnesses could you call, and what
questions would you ask?
(a) Exhibit 1: A copy of Andrews' confidential written memo
to Rundown CFO June Jacobs dated March 14, 2015.
(b) Exhibit 2: A copy of Chief Auditor Andrews' e-mail to
Jacobs, also dated March 14, 2015.
(c) Ray's sale of 100,000 shares on March 16, 2015.
4.5. Home run king Barry Bonds testified under oath to a grand jury
charged with investigating the distribution of illegal anabolic
steroids by the BALCO laboratory. Bonds denied knowingly
using such steroids. Bonds was then charged with ten counts
of making false statements to the grand jury. Federal agents
executed a search warrant on BALCO and searched its
premises. The government found samples of urine that tested
positive for the presence of illegal anabolic steroids. The
government claims that these are samples of Bonds's urine. It
contends that Bonds's urine samples were obtained by his
trainer, Greg Anderson, and then taken by Anderson to
BALCO employee James Valente. Valente delivered the
samples to Quest Diagnostics, which sent the samples and
test results back to BALCO. The test results do not identify
Bonds as the source of the urine. Quest can identify the tested
urine samples as coming from Valente. Valente will testify that
each time Anderson gave him the urine samples, Anderson
said something to the effect of “this is from Bonds.” Greg
Anderson refuses to testify and has been jailed for contempt
of court. Have the urine samples been adequately identified as
coming from Bonds?

5. FRE 901—Practical Applications: Generic Foundation

Questions for Various Exhibit Types
The foundational requirements established by FRE 901 are
described in the rule's title as requirements of “authentication” or
“identification.” These are not doctrinal terms that have a single, well-
defined meaning. Instead, as we have seen, the standard of FRE
901(a) is flexible. The starting point is always to ask: Why is this
exhibit relevant? What does the proponent claim it to be, based on
its connection to the offering party's theory of the case? The answers
to these questions are primarily case-specific and highly contextual,
and will therefore vary from case to case. But there are in addition a
few recurring, generic foundation issues that frequently arise in
certain
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broad categories of exhibits. Some of these are covered by FRE

901(b)(2) through (9), which lists a set of examples of generic
foundation questions. The list is nonexhaustive, and is intended to
provide analogies for the authentication of exhibits of all types.
Types of Exhibits: Real versus Depictive. It's useful to think of
exhibits as falling into two broad types: things that are relevant
because they were actually part of the litigated events, and things
that are relevant because they describe, depict, or reconstruct the
litigated events. The former are called “real” evidence. The latter
category for some reason doesn't have a universally accepted name
in the cases or academic literature. For ease of reference, we'll call it
“depictive” evidence. It primarily consists of photographs, video and
audio recordings, and so-called demonstrative evidence.
The usefulness of this division is that these two types correlate with
certain recurring questions. With real evidence, it is usually
necessary to show the identity and, often, the unchanged condition
of the exhibit. With depictive evidence, it is usually also necessary to
show the accuracy of the depiction as part of its foundation.
Written documents are sometimes viewed as a third category.
While in some sense, they too could be categorized as either real or
depictive, or even as a hybrid of the two, it's common for judges,
practitioners, and scholars to view documents as their own category.
a. Real Evidence Foundation Issues
Real evidence refers to tangible items that played some role in the
litigated event. Examples are easily thought of: the weapon used in a
crime, the cocaine allegedly sold to the government informant, the
allegedly defective appliance in a products liability action. The item's
connection to the specific events in dispute makes it relevant, and
that connection is “what the proponent claims” for purposes of
satisfying FRE 901.
The foundation for real evidence typically consists of a description
of the item's physical involvement in the case. We have already
examined the kinds of case-specific questions that may need to be
answered to establish the foundation for such items. Not just any
gun, or any cocaine will do. Under FRE 901(a), the prosecution must
claim that this was the gun used by the defendant in the robbery, or
that this was the cocaine sold by the defendant to the government
informant.
Identity. In addition to those case-specific foundation questions,
real evidence can raise recurring questions regarding identity and
unchanged condition. For example, how do we know that the sample
of white powder sent to the crime lab was in fact taken from the
package sold by the defendant to the government informant? What if
the sample really came from a supply seized in a different cocaine
case? These are questions of identity of the real evidence. Identity
questions often arise when an item of real evidence is generic or
fungible: a gun, cocaine, or a pile of cash, for example.
Unchanged Condition. The machine gun in the Hitt case was real
evidence. There, the entire case turned on the question of
unchanged condition. There was inevitably a lapse of time between
the seizure of the gun at the time of Hitt's arrest,

210

and the prosecution expert's test-firing of the gun to determine that

it rapid fired (and so functioned as a machine gun, as opposed to a
single-shot rifle). The defense argued that in the intervening time,
enough dirt had accumulated in the gun's inner workings as to cause
the gun to malfunction by rapid firing. Thus, the defense argued, it
wasn't converted into a rapid-fire (i.e., machine) gun by Hitt. The
unchanged condition of the gun thus became an element of the
foundation for the gun that had to be proven by the prosecution.
Proving Identity Through an Identifiable Marking or
Characteristic. Real evidence can be identified by a percipient
witness who perceived the item at some relevant time during the
litigated events, and who sufficiently remembers it at the time of trial.
You might think of this kind of foundation testimony as “then-and-
now” or “endpoint” testimony (as in the end points of a time line).
This assumes, of course, that the item is sufficiently distinctive so
that a person could remember it. Conceivably, the bank teller in an
armed robbery might remember with some precision what the
shotgun pointed at him by the robber looked like, to the extent that
two years later, at the time of trial, he can plausibly identify it in court.
The foundation witness testifies, in essence, “I saw it then, and I see
it now in court. It is the same thing.” (In-court eyewitness
identifications are a form of “then-and-now” testimony applied to the
person of the defendant.)
If the item is generic (a gun) or fungible (a pile of $1,000 in 20-
dollar bills), the witness may not be able to remember it with
particularity; conceivably, a judge could find that a claim to be able to
do so is so implausible that no reasonable jury could believe it, under
the ESSF standard. Such generic or fungible items might be
identified in one of two ways. Perhaps the generic item had
distinctive markings on it—a person's initials, or a carved design, for
example. This essentially transforms the generic item into something
more unique that a witness could remember and identify in court.
(E.g., “The shotgun had a skull and crossbones carved on the
wooden stock.”)
Generic or fungible items might also be identified by a label, a
number, or a tag affixed to it at the time it was discovered. Evidence
collection practices of law enforcement officers require the use of
evidence tags for this reason. In many cases, the evidence tag will
suffice to establish the identity of a generic item. See, e.g., United
States v. Abreu, 952 F.2d 1458, 1467-1468 (1st Cir. 1992) (a drug
agent sufficiently identified a shotgun as the one he seized at
defendant's apartment by identifying the evidence tag placed on the
gun at the time of seizure and by his signature on the tag).
Proving Identity Through Chain of Custody. Chain of custody is
the second typical method of identification, most often used when an
exhibit is generic and has no readily identifiable characteristics. The
links in the chain of custody of the item of evidence would consist of
all the people who handled the evidence between the time of its
discovery at the crime scene and its appearance in the courtroom. A
complete chain of custody under FRE 901(b)(4) would require the
testimony of all such people, plus testimony to show that the exhibit
was stored in a secure place when it was not being handled.

211

Proving Unchanged Condition Through Chain of Custody. The

chain of custody can also establish that the item was not tampered
with and remains in the same condition as when it was discovered.
This showing may be required if the condition of the item is as
important as its identity. In the examples we have been discussing,
the gun found in the dumpster near the crime scene allegedly has
the defendant's fingerprints on it. The substance bought from the
defendant by the government informant is supposed to be cocaine.
The complete chain of custody would show that these conditions
existed when the items were found, when they were tested, and
perhaps even when they were presented in court. If the gun is tested
for fingerprints—or if a chemical test is conducted on drugs seized
from a defendant—the laboratory chemist becomes part of the chain
of custody. There needs to be evidence that the gun or the drug that
reached the laboratory was the same gun or drug found at the crime
scene or seized from the defendant, and that it has not been
tampered with before or since.
A complete chain of custody can be quite burdensome to prove, as
shown in Jeter v. Commonwealth, 607 S.E. 734, 737-740 (Va. App.
2005). Testimony from the detective who seized the substance from
the defendant established that he immediately sealed the suspected
cocaine in a “clear plastic baggie,” then at the station placed it in a
lock-sealed envelope, sealed the envelope with evidence tape, and
marked the envelope with the date, his initials, and his identification
number; gave the envelope to an authorized agent of the Division of
Forensic Sciences (DFS), who gave it to a security officer at DFS,
who gave the envelope to the laboratory analyst. The envelope was
in the analyst's “continuous care and control” while he was
performing the analytical tests on the suspected cocaine. And, after
performing the analyses, the analyst resealed the envelope with
evidence tape and marked the envelope with his initials, the date,
and the lab number. Both the analyst and the detective identified the
envelope at trial. This established every “vital link” in the chain of
possession, thereby demonstrating with “reasonable certainty” that
the evidence had not been altered, substituted, or contaminated.
Cases decided under FRE 901(a) make it clear that the complete
chain of custody need not always be proved to satisfy the sufficiency
standard. Even where gaps exist in the chain of custody of
substances that require testing, courts have held that a jury could
reasonably find that the exhibit in question was adequately identified
and still in an unchanged condition. “A break in the chain of custody
will not necessarily lead to the exclusion of the evidence . . . . Rather,
the ultimate question is whether the authentication testimony is
sufficiently complete so as to convince the court that [a reasonable
jury could decline to find] that the original item had been exchanged
with another or otherwise tampered with.” United States v. Grant,
967 F.2d 81, 82 (2d
Cir. 1992). In making this decision, courts routinely give the
government the benefit of a presumption that evidence has been
handled properly. United States v. Glawson, 322 Fed. Appx. 957
(11th Cir. 2009) (absent evidence to the contrary, the trial judge may
assume that a police officer would not tamper with exhibits).
This informal but habitual presumption means that courts will
typically demand that a claim of tampering must be supported by
specific evidence to contest the government's proof of chain of
custody. Where such evidence is offered, the court could decide to
exclude the government's exhibit on the ground that it has failed to
establish

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unchanged condition through chain of custody. Or it could admit

both the disputed item of real evidence together with the defendant's
evidence of changed condition. The defendant can try to persuade
the jury that it has no relevance or probative value in the case. See
United States v. Ladd, 885 F.2d 954, 956-957 (1st Cir. 1989)
(admitting blood and urine test results from state crime lab together
with defense evidence of sloppy lab practices, but excluding blood
tests conducted for government by private lab). Note that the
informal presumption of reliability accorded to criminal forensics labs
may be subject to change, as such labs become the subject of
increasingly widespread reports of negligence or fraud in handling
forensic evidence.
Once an item of real evidence has been authenticated, it is still
potentially subject to the judge's discretion to exclude pursuant to
FRE 403. However, it is customary for judges to treat real evidence
as being highly probative and thus of considerable assistance to the
jury, sometimes with little analysis of what the jury would learn for
purposes of deciding a fact of consequence in the case. Thus, the
admission of even gruesome objects has been upheld if they played
a part in the litigated events.
b. Depictive Evidence Foundation Issues
As noted above, “depictive” evidence is a term we use in this book
to mean items of evidence (primarily, exhibits) that describe, depict,
or reconstruct litigated events. This category does not include actual
testimony from percipient witnesses recounting their firsthand
knowledge of those events. Depictive evidence raises the standard
foundation questions of identity and unchanged condition. Further,
the relevance of an item of depictive evidence also depends on the
accuracy with which it depicts an aspect of the litigated events.
Accuracy therefore becomes part of the foundation for such
evidence.
Recordings and Photographs. Audio, video, and photographic
recordings are generally not litigated events in themselves, but are
an independent record of those events. Although they may be
offered together with the testimony of a witness who perceived the
events, the recordings themselves are not testimony, since they are
imprinted on tape or film or some other medium rather than in human
memory. The recording reveals what the equipment “saw” or “heard,”
perhaps with less risk of human fallibility than an eyewitness. Even if
there were reasonably reliable eyewitnesses, the recording in effect
offers an independent version of an occurrence that could be used
as substantive evidence. Such a photographic or sound recording, if
properly authenticated, would be admissible as substantive proof as
to what out-of-court events occurred.
The types and sources of such recordings can vary widely. Law
enforcement officers produce audio recordings of intercepted phone
conversations. Automatic security cameras in banks, stores, ATMs,
or elsewhere create continuous audiovisual records in the hope of
preserving evidence of, if not deterring, crimes. Police departments
increasingly require digital cameras to be worn by their officers as
“body cams,” or to be mounted on police cars, in order to create
independent evidentiary records. And of

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course, individuals with cameras may happen to capture

occurrences that eventually become relevant in litigation. As
individuals increasingly carry cell phones with fairly high-quality
digital cameras, and as digital cameras become cheaper, easier to
use, and of better recording quality, the availability of digitally
recorded evidence will only increase. The impact of these
technological developments may be highly significant. Consider, for
example, the recent spate of police excessive force incidents
captured on cell phone cameras by bystanders, compared to the
extreme rarity of such footage at the time of the shocking video of
the infamous Rodney King beating in 1991.
“Now-and-Then/Endpoint” Foundations for Recordings and
Photographs. There are two fundamental ways to lay a foundation
for recordings and still photos. As with real evidence, the foundation
for a recording or photograph can be laid with “now-and-
then/endpoint” testimony. This foundation is straightforward. A
percipient witness who perceived the actual event at the time it
occurred and remembers it now, and therefore has personal
knowledge of it, can be shown the photograph or recording of the
event and testify that the photograph or recording is an accurate
depiction of the actual event. While technically the FRE don't require
the utterance of magic words by the foundation witness, it's very
common for witnesses to be asked whether the recording is a “fair,”
or “accurate,” or “true” record or some combination of those three
words. This testimony to the accuracy of the recording also suffices
to establish the identity and unchanged condition of the contents
without a separate or additional inquiry.
Note that it's not necessary with this type of foundation to take
testimony from the photographer herself—if there even is a human
photographer. Note also, that the timing for showing the photo or
recording to the foundation witness is flexible. It can be done in
court. Or it can have been done prior to trial, in which case the
foundation witness could testify: “Two months ago, I was shown the
video, and it accurately depicted the events I remember seeing.” It
might be necessary, in that situation, for a further foundation witness
to testify that the video is now in the same condition as it has been
when the other witness saw it.
“Process” Foundations for Recordings and Photographs. The
second type of foundation for recordings and photographs is needed
when there is no “then and now” witness available. In that situation,
the fairness and accuracy of the recording or photograph will have to
be inferred from testimony showing that the process of making and
keeping the recording or photograph demonstrates its fairness and
accuracy. Recall that a chain of custody is a process to preserve
both the identity and unchanged condition of an item of real
evidence. What sort of process questions would you need to answer
if you wanted to show that a recording or photograph accurately
recorded its content and has not been changed, due to deterioration
or “doctoring”?
You could call the photographer as a foundation witness. Working
behind the camera, the photographer may or may not be a useful
percipient witness to events: The photographic record may have
captured a lot more relevant information than the photographer was
able to see or remember. Instead, she testifies about the process of
taking the photograph, and we rely on the technical qualities of the
equipment to infer

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that the recording is a “fair and accurate” depiction of the actual

events. Some chain-of-custody type testimony would need to be
added to establish unchanged condition, because the photographer
is not acting as a “then-and-now” foundation witness.
Of course, with automated recording equipment, there is no human
photographer making the recording of the relevant occurrence. In
this situation, the only alternative to a then-and-now witness would
be a “process” witness who can testify to the process by which the
photo was taken: what sort of equipment was used, how the camera
was set up to operate automatically, how the recordings were
preserved, etc. Again, in this situation, the reliability of the process
for producing and maintaining the recording or photograph is used
as ESSF that the end product is a “fair and accurate” record of the
underlying events.
The Impact of Technological Change on Foundation for
Recordings and Photographs. How much evidence must be
presented about the technical characteristics of the recording
equipment, whether or not there was a human photographer making
the recording? There is a general tendency in the cases—one that
might have more to do with the human nature of judges than with the
doctrinal logic of evidence law—to require more technical
characteristics evidence to establish foundation for the output of
novel technological processes, and less such evidence where the
technology is more familiar. Compare United States v. Stephens, 202
F. Supp. 2d 1361, 1368 (N.D. Ga. 2002) (automatic recordings “may
satisfy the requirements of the [FRE] . . . so long as a witness
testifies to the type of equipment or camera used, its general
reliability, the quality of the recorded product, the process by which it
was focused, or the general reliability of the entire system”) with
United States v. Harris, 55 M.J. 433, 438 (CAAF 2001) (“Any doubt
as to the general reliability of the video cassette recording
technology has gone the way of the BETA tape”). For example, in
older cases, courts adopted a much stricter attitude to ensure the
accuracy of tape and film recordings, requiring proof of the
equipment operator's qualifications, the working condition of the
equipment, and the absence of material alterations, typically through
a complete chain of custody of the recording itself from the time it
was made until presentation in the courtroom. See, e.g., United
States v. McMillan, 508 F.2d 101, 104 (8th Cir. 1974) (establishing
seven-factor McKeever-McMillan test for authenticating recordings);
United States v. Starks, 515 F.2d 112, 121 n.11 (3d Cir. 1975)
(adopting this test). Such strict foundation requirements for now-
familiar technology have eroded or been abandoned. See, e.g.,
United States v. Spence, 566 F. App'x 240, 242-244 (4th Cir. 2014)
(rejecting McKeever-McMillan test in favor of simple accuracy
showing); United States v. Henley, 766 F.3d 893, 912 (8th Cir. 2014)
(treating McKeever-McMillan test as merely “helpful guidelines”).
Some still-valid precedent raises the burden in criminal cases by
requiring that the prosecution provide “clear and convincing
evidence” that a tape recording is a “true, accurate, and authentic
recording of a conversation between the parties,” but the foundation
requirement no longer generally requires elaborate evidence
explaining the technical recording process. United States v.
Emerson, 501 F.3d 804, 813-814 (7th Cir. 2007); accord United
States v. Hamilton, 334 F.3d 170, 186-187 (2d Cir. 2003).

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While our society, including judges, may be increasingly accepting

the capacity of digital cameras to make accurate recordings and
photographs, a countertrend may offset the willingness of courts to
accept simple and easy foundations for such exhibits. Specifically,
related technical advances may make it easier to falsify or “doctor”
digital recordings and photographs. This raises a question we have
already seen in the real evidence context. Who has the burden, and
what is the burden, of showing unchanged condition? The general
tendency of courts over the years has been to liberalize foundations
and allow disputes over genuineness to go to the jury. It might be
said that a minimal chain of custody to prove the continued integrity
of the recording will suffice, in effect, to shift the burden to the
objecting party to produce evidence raising doubts about the
unchanged condition of a recording. See People v. Goldsmith, 326
P.3d 239, 248-249 (Cal. 2014) (“We decline to require a greater
showing of authentication for the admissibility of digital images
merely because in theory they can be manipulated.”); United States
v. Harris, supra, at 440 (although “technology makes alteration of
photographs a possibility. . . . the Government need only show by
direct or circumstantial evidence a reasonable probability that the
evidence is authentic”); United States v. Stephens, 202 F. Supp. 2d
at 1369 (noting that the same technical advances that make it easier
to tamper with photos “have also greatly improved our ability to
detect and expose such electronic tampering”). However, the case
law is sufficiently variable and in flux that you would have to research
this question carefully to determine the required foundation in an
individual case. See Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534,
544 (D. Md. 2007) (“Obviously, there is no 'one size fits all' approach
that can be taken when authenticating electronic evidence, in part
because technology changes so rapidly that it is often new to many
judges.”).
FRE 403 and Recordings or Photographs. Sometimes
foundation questions relating to recordings will shade into FRE 403
arguments. Recordings or photographs whose accuracy is
questionable can raise FRE 403 dangers of misleading the jury. And
of course, photographic records that portray gruesome events such
as personal injuries or autopsies of crime victims, are frequently
objected to as unfairly prejudicial. The important point to remember
is that FRE 403 objections are different from foundation objections,
and can be made even if the ESSF standard for foundation has been
met.
 Demonstrative Evidence. Demonstrative evidence reproduces or
depicts persons, objects (such as items of real evidence that are not
brought into court), or scenes that are connected to the litigated
events in the case. Examples are models, diagrams, and drawings.
In addition, recordings or photographs made at times different from
those of the underlying events might also be classed as
demonstrative. For example, a photo of an intersection made long
before or after a car accident may give the jury a visual impression of
the layout of the scene, or demonstrate lighting conditions at a
relevant time of day. These exhibits are offered to illustrate or explain
the testimony of witnesses, including experts, and to present or
summarize significant portions of complex and voluminous
documents.

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Some demonstrative exhibits are reconstructions of litigated events

or conditions, or summaries of facts, that have been created
expressly for the litigation. Examples include things like a chart or
tables or relevant data (for example, a one-page summary of
expenditures boiled down from hundreds of checks and receipts), a
map of an accident or crime scene, an organizational chart, a model
of a human body with a particular type of injury, a scale model of a
defectively designed car or airplane. Computer-generated animation
or simulations can be used in trials to portray out-of-court events for
the jury. Demonstrative exhibits are often, but need not, be fully
created in advance: A witness could be asked to make a drawing
from scratch, or to mark a pre-made map, to illustrate a point in his
testimony.
In theory at least, such demonstrative exhibits do not have
independent probative value on the substantive issues in a case.
They are relevant, and permitted to be viewed by the jury, because
they assist the jury in understanding testimonial, documentary, and
real evidence. Such demonstrative exhibits are typically not admitted
into evidence, yet they nevertheless require foundation. There must
be testimony of one or more percipient witnesses to provide “then-
and-now” testimony to establish ESSF that the demonstrative exhibit
is a “fair and accurate” representation of the underlying events or
conditions it depicts. Where the demonstrative evidence has been
created by more complex technical processes, such as computer
animation, some kind of process testimony will be required by
someone who knows the technology and can speak to how the
evidence was created. Courts also require a showing that
demonstrative evidence will assist the trier of fact by increasing its
understanding of the relevant events.
Some demonstrative evidence takes the form of a courtroom
demonstration, which is not a tangible thing that would be marked as
an exhibit. A witness might be asked to get up from the witness chair
to show the jury the position of his body during a fight, perhaps with
the lawyer taking part in the demonstration. A lawyer might try to
demonstrate a distance in a litigated event by making reference to
persons or objects in the courtroom. The proponent of the
demonstration must lay a proper foundation establishing the
similarity of circumstances and conditions between the out-of-court
event and the in-court presentation. The conditions need not be
identical, but they must be sufficiently similar to provide a fair
comparison. In United States v. Gaskell, 985 F.2d 1056, 1060-1061
(11th Cir. 1993), a demonstration by an expert witness as to the
amount of force needed to cause a seven-month-old infant's fatal
injuries was held inadmissible. Shaking a rubber doll was not
substantially similar due to stiffness of the doll's neck, differences in
the weight of head, and absence of testimony concerning the
number of oscillations required to produce the infant's injuries.
A Further Note About Photographs and Recordings. We've
discussed recordings and photographs as depictive evidence
because they depict relevant occurrences and are not an intrinsic
part of what happened that gave rise to a case. A bank robbery
would be a crime whether the surveillance camera caught it on video
or not. The video is evidence of “what happened,” but is not itself
what happened. In such circumstances, the recording or photograph
is treated as depictive evidence, relevant only if it fairly and
accurately depicts the relevant events.

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But sometimes a photograph or recording is part of the chain of

occurrences giving rise to a case. Suppose a robbery eyewitness
identifies the defendant from a mug shot or photo array. At trial, the
defendant claims mistaken identity and will want to prove that the
photo identification procedure was improperly suggestive, causing
the eyewitness to mistakenly select the defendant's photo. The
photo or photos used in the identification procedure are thus real
evidence—they played a role in the litigated events. But the manner
in which they were shown to the eyewitness during the police
investigation would have to be re-created in court, for the jury. That
re-creation would be demonstrative evidence. The photo of the
defendant may not be “fair and accurate”—indeed, the defense
claims that it was misleading in some way. But a courtroom re-
creation is demonstrative evidence, and must be a “fair and
accurate” depiction of the manner in which the photos were shown to
the witness by the police.
c. Written Documents
Written documents tend to be treated as a separate category of
evidence that is neither real nor depictive. That categorization of
written documents has more to do with convention than logic. But it
may stem from the fact that written documents can have elements of
either or both real or depictive evidence, and that they often raise
issues governed by the hearsay rule and its exceptions. The
relevance of writings in a given case virtually always stems from a
logical connection between their contents and the litigated events,
and in many cases their language supplies sufficient context or
information to make that logical connection clear. Whether that is
true or not in a particular instance, a writing resembles real evidence
if its creation is a relevant occurrence in itself—the signing of a
written contract or the writing and publication of a libelous statement,
for example. And it resembles depictive evidence if its relevance
consists in its description of some relevant event, such as a diary
entry recounting an instance of workplace harassment, or a time
card showing that the defendant was clocked in at work when he
was purportedly committing a robbery on the other side of town.
Foundation for Writings. As with any other exhibit, the foundation
for a writing will depend on how the offering party asserts it is
relevant—on the claim about what the writing is. In most cases,
ESSF of the authorship of the document, combined with a few case-
specific context facts about the document and its contents, will
provide sufficient foundation.
If the writing is an act that is relevant because of who executed it—
the signature on a contract, for example—the foundation will include
both facts that make the contract relevant to the case as well as
ESSF that the signature was made by the relevant person. A witness
who observed the defendant signing the contract could testify to that
based on firsthand knowledge. See FRE 602, 901(b)(1).
Alternatively, the signature could be attributed to the defendant
based on the testimony of a witness familiar with the defendant's
handwriting under FRE 901(b)(2), or by a comparison between the
signature and a known sample of the defendant's handwriting, under
FRE 901(b)(3). Authorship of a writing could even be proved by
circumstantial evidence. See, e.g., United States v. Thompson, 449
F.3d 267, 274 (1st Cir. 2006) (finding ESSF

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that defendant authored letter that precisely fit his circumstances

and conveyed facts known peculiarly to him); United States v.
Gonzalez-Maldonado, 115 F.3d 9, 20 (1st Cir. 1997) (notebook found
in a person's briefcase in that person's room, along with an
identification card, was sufficiently authenticated as belonging to that
person by such circumstantial evidence).
Depictive Writings Are Usually Hearsay. If the writing is relevant
because its contents depict relevant events, we are concerned on
some level with the fairness and accuracy of the depiction. But this
situation is likely to mean that the writing is hearsay—a statement
made outside the trial that is relevant because the offering party
claims it makes true factual assertions. In that situation, the writing
will be admitted only if it fits a hearsay exception or exemption. Since
many of the rules regarding hearsay exceptions or exemptions are
themselves concerned with accuracy or reliability, the accuracy
aspects of foundation for depictive writings will tend to be rolled into
a hearsay analysis. Nevertheless, the foundation could require ESSF
that the facts conveyed are accurate or reliable. Depending on the
type of document, this could require, again, some showing of who
authored the document. In addition, it may require a showing that the
author had reason to know the facts depicted. As will be seen when
we study the hearsay exceptions, this may simply be a question of
showing ESSF that the author of the writing probably had firsthand
knowledge of the matters stated in the writing.
Business Records. Records of a business or other institution can
be authenticated as to their source under FRE 901(b)(4) through
proof of matching letterhead, comparison with matching forms,
testimony about the routine practices of the institution in generating
such records, and through testimony of a custodian about how the
business's filing or data retrieval system operates and that the
document was retrieved from a certain file or in a certain way. FRE
901(b)(7) provides for the authentication of certain types of public
records or reports. Proof that they “are from the public office where
items of this nature are kept” can be provided by testimony from the
custodian, or by a certificate of authenticity from the public office.
See FRE 902(2), discussed below.
Ancient Documents. FRE 902(b)(8) provides that a writing that is
more than 20 years old will be deemed authentic based on ESSF
that it was found in a place where it would likely be if it were
authentic. See Threadgill v. Armstrong World Industries, Inc., 928
F.2d 1366, 1376 (3d Cir. 1991) (admitting correspondence from the
1930s showing corporate knowledge of asbestos risks that had first
been stored in a company vault, then moved to various corporate
departments); and “in a condition that creates no suspicion about its
authenticity.” FRE902(b)(8)(A). This latter requirement refers to
subsequent tampering with the document, and not its accuracy when
originally created. See United States v. Demjanjuk, 367 F.3d 623,
631 (6th Cir. 2004) (suspicion about the accuracy of the original
contents of Nazi document “goes to its weight and is a matter for the
trier of fact”). An extremely broad “ancient documents” exception to
the rule excluding hearsay, FRE 803(16), provides for the admission
of a “document in existence twenty years or more the authenticity of
which is established.”

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Electronic Writings. Due to the enormous growth in digital

document creation and storage in recent years, electronic writings
(also known as “e-evidence”) are increasingly used in both civil and
criminal litigation. Most common are computer-generated data files,
e-mails, chat group discussions, text messages, and web postings of
various types. The authentication of such electronic writings can be
hotly contested when authorship is in dispute.
Judicial approaches to foundation for these types of e-evidence are
very much in flux. In some instances, judges seek analogies to
traditional writings, and decline to presume technology-based
accuracy problems in e-evidence. In United States v. Safavian, the
court observed:
The possibility of alteration does not and cannot be the basis for excluding e-mails as
unidentified or unauthenticated as a matter of course, any more than it can be the
rationale for excluding paper documents (and copies of those documents). We live in
an age of technology and computer use where e-mail communication now is a normal
and frequent fact for the majority of this nation's population, and is of particular
importance in the professional world. [435 F. Supp. 2d 36, 41 (D.D.C. 2006).]
See also CA, Inc. v. Simple, Inc., 2009 U.S. Dist. LEXIS 25242, at
*55-56 (E.D.N.Y. 2009) (“The mere theoretical possibility” or “bare
assertions” “that the archive CD could have been altered does not
make it inadmissible”). In other cases, the tendency to demand more
exacting foundation showings for new technology is apparent. See
Devbrow v. Gallegos, 735 F.3d 584, 586-587 (7th Cir. 2013) (“While
circumstantial evidence—such as an e-mail's context, e-mail
address, or previous correspondence between the parties—may
help to authenticate an e-mail, the most direct method of
authentication is a statement from the author or an individual who
saw the author compose and send the e-mail.”); St. Clair v. Johnny's
Oyster & Shrimp, Inc., 76 F. Supp. 2d 773, 775 (S.D. Tex. 1999)
(“Anyone can put anything on the Internet . . . the Court holds no
illusions that hackers can[not] adulterate the content on any website
from any location at any time.”).
The most likely approach at present would be to require a prima
facie showing of authorship from such circumstances as e-mail
headers and return addresses, ownership of accounts, access to
websites, source numbers for text messages, document metadata,
and the like. Where authorship can be disputed by evidence of the
likelihood of unauthorized access, shared accounts and the like, the
court is likely to admit both evidence supporting and opposing
foundation and allow the jury to resolve the factual dispute. Perhaps
the primary difference between electronic and traditional writings is
the room, or need for expert testimony regarding the reliability of the
processes producing the e-communications.
d. Authenticity and Genuineness of Exhibits

FRE 901 speaks of “authenticating or identifying” items of

evidence. Courts and commentators (as well as this book, in places)
often use the word “authenticating” or “authentication” essentially as
synonymous with “laying the foundation” for an exhibit. The word can
be a bit misleading, to the extent that it suggests that the sole, or
even primary, concern of the foundation rules is to ensure that the
exhibit is “genuine,”

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meaning not a forgery. While the common law may have been
exceedingly focused on preventing the use of forged or fraudulent
documents, these concerns have given way to the FRE's broader
emphasis on establishing relevance of evidence and on shifting
credibility issues away from the judge and into the hands of the jury.
(We discuss this further in the next section on FRE 104.) After all,
there is little reason to believe that falsifying documents or exhibits is
easier or more widespread than falsifying testimony. But such
credibility issues are clearly for the jury under modern evidence
rules. While “genuineness” of an exhibit (that it's not a forgery) may
be an issue in specific instances, that point can be established under
FRE 901 through the simple assertion of a witness purporting to
have firsthand knowledge, and that witness is presumed by the court
to be telling the truth for foundation purposes. The word
“authenticating” may be a holdover from older doctrinal issues, or it
may be a reference to the kind of showing required for real evidence,
that it was the actual thing that played a role in the litigated events.
The best way to define “authenticating” under current law is as
synonymous with “laying the foundation for” an item of evidence.
e. Sum Up: The Flexibility of FRE 901 Foundations
We hope that the above discussions have clearly conveyed that
foundation for exhibits is highly context specific, and not based on
rigid rules or litanies of magic words. And the FRE's approach to
exhibit foundations is intended to be sufficiently flexible to
accommodate the infinite number of case-specific contexts into
which exhibits must be placed.
You can see this in FRE 901(b)'s claim that its list is illustrative, and
not intended to be complete. The foregoing discussions have
demonstrated that the FRE 901(b) illustrations are sometimes useful
in a particular situation, and sometimes not. Moreover, because the
FRE 901(b) illustrations are generic, they tend to be useful only in
answering generic questions about exhibits: Whose signature or
voice is it? Is the exhibit accurate? The rule couldn't have been
written concisely to address highly context-specific foundations, such
as that “this is a package of cocaine sold by the defendant to the
informant.” In drafting the ultimate criterion of FRE 901(a) so broadly
—that a matter is what the proponent claims it to be—the drafters of
the Federal Rules have permitted flexibility in the application of the
foundation requirement. Remember that the starting point of your
analysis of the required foundation should always be to ask: Why is
this exhibit relevant?

KEY POINTS
1. Real evidence is a tangible exhibit that played some role in
the underlying litigated events. In addition to highly case-
specific foundation facts linking the item of real evidence to
the offering party's theory of the case, recurring generic
foundation questions about real evidence usually involve the
identity and unchanged condition of the item.

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2. Identity of unique or recognizable objects can be established

by “then-and-now” or “endpoint” testimony from a witness who
saw the item during the events in question and who
recognizes the item now in court. Identity of fungible or
generic items can be established through a chain of custody.
Where unchanged condition is an issue, a chain of custody is
usually necessary, though courts do not always insist on a
complete chain.
3. Depictive evidence describes, depicts, or reconstructs litigated
events. It includes recordings, photographs, and
demonstrative evidence. The primary generic foundation
issue is that the depictive evidence fairly and accurately
depicts the underlying event.
4. A witness who saw the underlying events can provide “then-
and-now” testimony that the depictive evidence is “fair and
accurate.” In the absence of such a witness, fairness and
accuracy will be an inference to be made from testimony
about the accuracy of the process in which the depictive
evidence was created and maintained.
 5. Written documents can be real evidence, depictive evidence,
or a hybrid. Generic foundation questions will tend to be about
identifying the author of the document, and possibly showing
his firsthand knowledge of depicted events. Writings
functioning as depictive evidence are likely to be hearsay.

PROBLEMS
4.6. Jim Zeal and Stephani Goldstein were in a sailboat, the
Rastafari, when it was stopped and boarded by the U.S. Coast
Guard on the high seas, some 300 nautical miles southeast of
Miami, Florida. The boarding officers searched the vessel and
discovered a large quantity of a green leafy substance.
Subsequently, Zeal and Goldstein were charged with
conspiracy to import marijuana into the United States.
(a) At trial nine months later, the prosecution offers into
evidence 11 nautical charts with navigational markings
on them indicating a planned route between Kingston,
Jamaica, which the government offers to show was a
standard port of call for drug runners, and Miami. The
prosecution asserts that the Coast Guard had seized the
charts from the boat and that they are relevant to prove
the conspiracy of illegal importation. To establish the
authenticity of the charts, the prosecution calls Coast
Guard Ensign Smythe, who testifies that he recognizes
the charts as the ones he seized from the boat, and then
deposited in the safe aboard the Coast Guard cutter,
because of drawings of Bob Marley on each one. Is this
testimony sufficient under FRE 901(b)(1)?
(b) The prosecutor also wants to establish that the leafy
green substance found on board the Rastafari is
marijuana. The prosecutor plans to show Exhibit C, a
bag containing a leafy green substance, to a government
chemist who testifies that, based on her in-court
 inspection, the substance in the bag is marijuana. But
first the prosecution offers Ensign Smythe to testify that
he seized a bag of a leafy green substance from the ship
and placed it in the

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Coast Guard safe along with the charts, and that while Exhibit
C “could be” that bag, he does not know whether it is.
Does this testimony satisfy FRE 901? What if FBI Agent
Owens testifies that he found both the bag and the
charts in the same box in the FBI evidence room and
brought them to the courthouse. Would that be
sufficient?
4.7. Darren is charged with possessing an unregistered sawed-off
shotgun in violation of federal law. “Possession” is defined as
the control of, or ability to control, the weapon. At trial, a
federal agent testifies as follows: “I conducted a lawful search
of the home of Rhonda Adams; I found Darren asleep in the
master bedroom; I searched the master bedroom and found a
black attaché case under the bed in which Darren was
sleeping; I opened the case, and it contained a sawed-off
shotgun.” Now the prosecution wants to offer a sawed-off
shotgun into evidence as Exhibit 2. The prosecutor claims that
Exhibit 2 is the gun found in the black attaché case in the
room where Darren was sleeping. First, the agent will identify
Exhibit 2 as being a Korean-made Shinn A Sipja 12-gauge
shotgun with a sawed-off barrel and cut-back stock. What
additional questions would the prosecution ask the agent to
satisfy FRE 901(a)? Try to use both the readily identifiable
characteristic and the chain of custody methods of identifying
real evidence.
4.8. In the Johnson case, if the prosecutor asked Officer Huston to
look at a model of the food port door that was constructed
before the trial, what questions would the prosecutor ask to lay
the foundation to admit the model into evidence as an exhibit?
 Suppose that the prosecutor wants to show that two food trays
cannot fit through the model food port door. Why is this
relevant? What other exhibits would be needed for this
demonstration? What questions would the prosecutor ask to
lay the foundation for the demonstration? What other
considerations should enter into the judge's decision whether
to admit the model or permit the demonstration?
4.9. Return to Problem 3.5 on page 150: (a) How would
Broadback's attorney lay the proper foundation for the
recorded excerpt from the televised filming of the soccer
game? Might defendant Trapp make any other objections? (b)
Should the court permit the plaintiff, Broadback, to
demonstrate to the jury the force of Trapp's blow to his neck?
How might he do this?
4.10. Plaintiff Burch, an African American woman, has filed suit
against her former employer, a Fifth Avenue New York
department store, for discrimination against her in the terms
and conditions of her employment. Plaintiff alleges that African
American employees of the Fifth Avenue Store are compelled,
as a condition of their employment, to either retain the hair
color they were born with or color their hair only dark brown or
black to conform with the color of their skin, while non-African
American employees sport hair highlights and colors other
than their “natural” hair color without being threatened with
termination. During her testimony at trial, Burch proffers a
photograph she states that she found and downloaded from
Facebook that shows a white employee of the Fifth Avenue
Store, Elaine, with bright red hair that is not her natural color.
Is this testimony sufficient to authenticate the photograph?
What additional information be would necessary to secure its
admission into evidence?

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6. FRE 902
 RULE 902. EVIDENCE THAT IS SELF-AUTHENTICATING
The following items of evidence are self-authenticating; they require no extrinsic
evidence of authenticity in order to be admitted:
(1) Domestic Public Documents That Are Signed and Sealed. A document that
bears:
(A) a seal purporting to be that of the United States; any state, district,
commonwealth, territory, or insular possession of the United States; the former
Panama Canal Zone; the Trust Territory of the Pacific Islands; a political subdivision
of any of these entities; or a department, agency, or officer of any entity named
above; and
(B) a signature purporting to be an execution or attestation.
(2) Domestic Public Documents That Are Not Sealed but Are Signed and Certified. A
document that bears no seal if:
(A) it bears the signature of an officer or employee of an entity named in Rule
902(1)(A); and
(B) another public officer who has a seal and official duties within that same entity
certifies under seal—or its equivalent—that the signer has the official capacity and
that the signature is genuine.
(3) Foreign Public Documents. A document that purports to be signed or attested by
a person who is authorized by a foreign country's law to do so. The document must be
accompanied by a final certification that certifies the genuineness of the signature and
official position of the signer or attester—or of any foreign official whose certificate of
genuineness relates to the signature or attestation or is in a chain of certificates of
genuineness relating to the signature or attestation. The certification may be made by a
secretary of a United States embassy or legation; by a consul general, vice consul, or
consular agent of the United States; or by a diplomatic or consular official of the foreign
country assigned or accredited to the United States. If all parties have been given a
reasonable opportunity to investigate the document's authenticity and accuracy, the
court may, for good cause, either:
(A) order that it be treated as presumptively authentic without final certification; or
(B) allow it to be evidenced by an attested summary with or without final
certification.
(4) Certified Copies of Public Records. A copy of an official record—or a copy of a
document that was recorded or filed in a public office as authorized by law—if the copy
is certified as correct by:
(A) the custodian or another person authorized to make the certification; or
(B) a certificate that complies with Rule 902(1), (2), or (3), a federal statute, or a
rule prescribed by the Supreme Court.
(5) Official Publications. A book, pamphlet, or other publication purporting to be
issued by a public authority.

224
(6) Newspapers and Periodicals. Printed material purporting to be a newspaper or
periodical.
 (7) Trade Inscriptions and the Like. An inscription, sign, tag, or label purporting to
have been affixed in the course of business and indicating origin, ownership, or control.
(8) Acknowledged Documents. A document accompanied by a certificate of
acknowledgment that is lawfully executed by a notary public or another officer who is
authorized to take acknowledgments.
(9) Commercial Paper and Related Documents. Commercial paper, a signature on it,
and related documents, to the extent allowed by general commercial law.
(10) Presumptions Under a Federal Statute. A signature, document, or anything else
that a federal statute declares to be presumptively or prima facie genuine or authentic.
(11) Certified Domestic Records of a Regularly Conducted Activity. The original or a
copy of a domestic record that meets the requirements of Rule 803(6)(A)-(C), as shown
by a certification of the custodian or another qualified person that complies with a
federal statute or a rule prescribed by the Supreme Court. Before the trial or hearing,
the proponent must give an adverse party reasonable written notice of the intent to
offer the record—and must make the record and certification available for inspection—
so that the party has a fair opportunity to challenge them.
(12) Certified Foreign Records of a Regularly Conducted Activity. In a civil case, the
original or a copy of a foreign record that meets the requirements of Rule 902(11),
modified as follows: the certification, rather than complying with a federal statute or
Supreme Court rule, must be signed in a manner that, if falsely made, would subject
the maker to a criminal penalty in the country where the certification is signed. The
proponent must also meet the notice requirements of Rule 902(11).

7. Explanation of FRE 902

FRE 902 provides a list of documents that are deemed “self-
authenticating.” Because of their nature, appearance, or self-evident
content alone, they are viewed as presenting a low risk of forgery or
misidentification relative to the high degree of inconvenience and
inefficiency involved in obtaining the testimony of a foundation
witness. Hence, the rule dispenses with the need to produce
extrinsic evidence to prove certain “authenticity” aspects of
foundation: the genuineness, generic identity, and authorship of the
exhibit.
What FRE 902 does not do is dispense with the case-specific
aspects of foundation, an explanation of why the “self-authenticating”
item is relevant to the case. Thus for example, in a drunk driving
accident case, the plaintiff seeks to introduce six empty cans with the
label “Duff Beer.” Under FRE 902(7), the can's label by itself should
be ESSF that the can contained beer, of the quantity and alcohol
percentage
225

shown on the label (and produced by the Duff Beer Co.). No

witness need be offered to testify to these facts. But why are the
cans relevant? Self-authentication has taken the exhibit only so far;
we still need foundation witnesses to testify that the cans were
found, empty but still damp and smelling strongly of beer residue, in
the back seat of the defendant's car immediately following the
accident. Only then might we have ESSF to support the finding that
these are cans of beer consumed by the defendant shortly before
the accident.
Certain kinds of public documents and public records have been
produced by a formal process that triggers a generalization that the
document itself, and the signatures on it, are very likely to be
genuine. The formalities, such as a seal or a statement of
certification as required by FRE 902(1)-(4) and (8), indicate that
someone has paid attention to genuineness. Self-authentication
under FRE 902(1) requires that the document bear the official seal,
not a copy of it. See United States v. Hampton, 464 F.3d 687, 689
(7th Cir. 2006). For similar reasons, notarization of a signature is not
sufficient under FRE 902(3); a final certification is required.
Depositions, court records, public reports, notices, assessments, and
payment of federal tax liens may all be self-authenticated under FRE
902(4) if accompanied by the proper certification. A public authority's
printed publications, handbooks, manuals, regulations, and
documents published on a website are self-authenticating under
FRE 902(5) without a certification.
Various kinds of writings, just from looking at them, trigger a
generalization that they are genuine because they are very difficult to
forge. For example, it may more reliably be inferred that the writings
defined in FRE 902(5)-(7) and (9) are from the source they appear to
be from. Specht v. Google, Inc., 758 F. Supp. 2d 570 (N.D. Ill. 2010)
(a news story from Forbes.com is not automatically self-
authenticating as a periodical; printing a serial publication involves
work and expense that make forgery unlikely while web printouts do
not carry the same degree of authenticity). However, this justification
for the rule has been weakened: “[M]odern technological
developments [computers, scanners, publishing software, and
internet access] make it easier to produce . . . a counterfeit.” Wright
& Gold, Federal Practice and Procedure: Evidence §7140 (2000).
Pursuant to FRE 902(7), trade inscriptions and the like—“Macintosh
Portable” on computers, “Product of Malaysia” inscriptions—are
usually treated as establishing the authenticity of the item to which
they are affixed, as well as their own genuineness. There is split
authority as to whether writings such as an owner's manual, or
electronic writings such as e-mail messages, that bear a company's
trademark should also be considered self-authenticating.
FRE 902(11) and (12), which are referred to in the business
records exception to the hearsay rule, FRE 803(6), are intended to
simplify the authentication of business records and to substitute a
written declaration for the production at trial of a custodian or other
live witness. Courts have held that the author of the certification does
not need personal knowledge of the contents of the specific business
records, but must have knowledge of how the records were created
and maintained. The rule does not specify whether the written
declaration must include detailed information to support each factor
of FRE 803(6)—that, for example, the record was made “as a regular
practice”—or whether the declaration can simply recite that
conclusion. Case authority is

226

not uniform on this point, but the majority of reported cases seem
to express a preference for verbatim recitation of the required
factors. Notice of a party's intent to use Rules 902(11) and (12),
together with the records themselves, must be provided to the
opponent for verification and potential challenge. If only conclusory
statements are made in written declarations, then the burden falls on
the opponent to take discovery on the underlying specific facts.
As stated in the Advisory Committee Note to FRE 902, admission
of a document pursuant to Rule 902 is not dispositive of authenticity.
The opponent can offer proof that the document is a phony or bears
a forged signature. Self-authentication also does not resolve
questions as to the source or accuracy of information that is reported
in self-authenticated documents. Objections can also still be made
that inadmissible hearsay statements or expert opinions are included
in, for example, newspapers or periodicals.

KEY POINTS
1. FRE 902 provides that some exhibits can be authenticated by
their appearance alone, without the testimony of a foundation
witness. Authentication here means proving the genuineness,
generic identity, and authorship of the exhibit. The opponent
may still dispute the authenticity of these “self-authenticating”
exhibits.
2. A foundation witness will still be needed to provide sufficient
facts to show why the exhibit is relevant.

PROBLEMS
4.11. In defending a personal injury suit filed by an employee
injured while operating a milling machine, the employer sought
to prove the year of manufacture of its machine. It did so by
offering the serial number of its machine plus Exhibit C, an
excerpt from the “Serial Number Reference Book for
Metalworking Machinery—11th Edition,” published by the
“Machinery Dealers National Association.” The excerpt
includes the cover, the title page, and pages 114-115; the
latter contains a list of what appear to be serial numbers for
Bridgeport milling machines for each year from 1950 to 1977.
The employer asserts that this excerpt is self-authenticating
under FRE 902(6) as a periodical because it is published and
updated by the Association every five years. What result?
C. PRELIMINARY FACT QUESTIONS UNDER FRE 104

FRE 104 establishes the respective roles of judge and jury in

deciding fact questions that determine the application of evidence
rules. Deciding how a particular evidence

227

rule will apply in a specific situation always requires reference to one

or more facts about the case, naturally raising the question which of
the two decisionmakers at trial—judge or jury—will decide what the
facts are. In a nutshell, FRE 104(a) tells us that fact questions going
to application of rules of exclusion of relevant evidence are decided
by the judge. FRE 104(b) tells us that fact questions going to
relevance and foundation—the affirmative threshold showing that
must be made by the offering party to have evidence admitted—are
ultimately decided by the jury. The judge merely screens the facts to
ensure that there is evidence sufficient to support a finding by the
jury.

1. FRE 104
RULE 104. PRELIMINARY QUESTIONS

(a) In General. The court must decide any preliminary question about whether a
witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the
court is not bound by evidence rules, except those on privilege.
(b) Relevance That Depends on a Fact. When the relevance of evidence depends on
whether a fact exists, proof must be introduced sufficient to support a finding that the
fact does exist. The court may admit the proposed evidence on the condition that the
proof be introduced later.
(c) Conducting a Hearing So That the Jury Cannot Hear It. The court must conduct
any hearing on a preliminary question so that the jury cannot hear it if:
(1) the hearing involves the admissibility of a confession;
(2) a defendant in a criminal case is a witness and so requests; or
(3) justice so requires.
(d) Cross-Examining a Defendant in a Criminal Case. By testifying on a preliminary
question, a defendant in a criminal case does not become subject to cross-examination
on other issues in the case.
(e) Evidence Relevant to Weight and Credibility. This rule does not limit a party's right
to introduce before the jury evidence that is relevant to the weight or credibility of other
 evidence.

2. Explanation of FRE 104(a)

The trial judge's decision to admit or exclude an item of evidence
always requires the judge to answer one or more preliminary
questions. Such preliminary matters include questions of law,
questions of fact, and questions that require the exercise of
discretion. Legal and discretionary questions are assigned to the
judge, rather than the jury, based on fundamental understandings
about our litigation system. The jury is the “trier of fact.” While FRE
104(a) addresses “preliminary questions” in general, the only ones
requiring a clarification with regard to a judge/jury division of
responsibility are preliminary fact questions.

228

FRE 104(a) is written as though, in general, all of these preliminary

questions are to be decided by the court: “The court must decide any
preliminary question about whether ... evidence is admissible.” But
the breadth and nature of the exception to this general rule stated in
FRE 104(b) makes clear that the concern of FRE 104(a) is with the
admissibility of relevant evidence under the various rules that
exclude relevant evidence: such as FRE 403, the hearsay rule, and,
as expressly mentioned in FRE 104(a), rules concerning privilege.
FRE 104(b) distinguishes and covers those fact questions that
determine whether evidence is relevant, and makes the jury the
ultimate decisionmaker. The judge's role under FRE 104(b) is to
determine whether there is ESSF that the preliminary fact exists.
FRE 104(a) also gives the judge control over “any preliminary
question about whether a witness is qualified.” This phrase is
understood to refer to the qualifications of expert witnesses
(discussed in Chapter Nine), as well as the very narrow scope for
judicial determinations of an individual witness's competence to
testify. See FRE 601. It is important to understand that this language
in FRE 104(a) is not meant to include the preliminary fact question of
whether a witness has firsthand knowledge. FRE 602 makes crystal
clear that that question is for the jury, subject to the judge's
screening for ESSF.
Judicial Factfinding Under FRE 104(a). The application of many
evidence rules requires the judge to determine preliminary questions
of fact pursuant to Rule 104(a). For example, whether a hearsay
statement qualifies for one of the numerous hearsay exceptions will
depend on certain facts: Was the statement made “under the stress
of excitement”? FRE 803(2); or was a business record “kept in the
course of a regularly conducted activity”? FRE 803(6)(B), and the
like. Application of the attorney-client privilege requires determination
of the preliminary fact question that the communication was made
during the attorney-client relationship.
FRE 104(a) states that preliminary questions of fact to determine
the applicability of such evidence exclusion rules shall be decided by
the court, but it does not contain an explicit standard of proof. The
Supreme Court has held that judges are to decide preliminary
questions of fact under FRE 104(a) “by a preponderance of the
evidence” in both civil and criminal cases. Bourjaily v. United States,
483 U.S. 171, 175 (1987).
Evidence is placed before the jury when it satisfies the technical requirements of the
evidentiary Rules, which embody certain legal and policy determinations. The
[admissibility] inquiry . . . is not whether the proponent of the evidence wins or loses his
case on the merits, but whether the evidentiary Rules have been satisfied. . . . The
preponderance standard ensures that before admitting evidence, the court will have
found it more likely than not that [the facts that are necessary to] the technical issues
and policy concerns addressed by the Federal Rules of Evidence have been afforded
due consideration. [Id.]
The Bourjaily decision means that the party asserting an evidence
exclusion rule (or an exception to that rule) has the burden to
persuade the judge of all the facts necessary for the rule to apply.
See United States v. Mitchell, 365 F.3d 215, 240 (3d Cir. 2004)
(“Rule 104(a) places the burden of proof on the proponent of the
evidence” asserting hearsay exception, under Bourjaily).

229
 Under FRE 104(a), the asserting party must produce evidence that
actually persuades the judge that the preliminary fact is more
probably than not true. In making this decision, the judge is the
factfinder: She resolves factual disputes, decides how much weight
to give the evidence, and determines the credibility of witnesses.
And, by the terms of Rule 104(a), the judge is not bound by the rules
of evidence, except for privileges. This means that the judge may
take otherwise inadmissible evidence, such as hearsay, into account.
As we'll see in Chapter Eight, this also means that the judge may
take the contents of the proffered item of evidence itself into account,
even though it has not yet been admitted. If the judge is not
persuaded on the preliminary question of fact, the judge will not
apply the rule in favor of the party seeking application of the rule.
The Decision Process Under FRE 104(a). Factfinding under FRE
104(a) is normally triggered by an objection to offered evidence, or
by a pretrial motion in limine to exclude evidence. When the
evidence ruling depends on preliminary facts that have already been
presented earlier in the trial, the parties may simply make legal
arguments. But where the evidence ruling depends on preliminary
facts that have not yet been presented, or that are disputed by the
parties, both sides may present evidence to the judge on the factual
issue. The evidence might be presented as verbal offers of proof by
the attorneys (see the discussion of FRE 103 in Chapter Two), or it
might take the form of actual evidence presented by examining
witnesses.
While this evidence presentation may take place in front of the jury,
it is very common to hold mini-hearings outside the presence of the
jury. See FRE 104(c). The reason should be apparent. The factual
inquiry is to determine whether or not an item of evidence should be
admitted—that is, presented to the jury. If the judge ultimately
decides to exclude the evidence, it would be problematic for the jury
to have heard it first. Instructions to a jury to disregard inadmissible
evidence are not ideal. Moreover, FRE 104(a) expressly states that a
preliminary fact showing may be based on inadmissible evidence—
that is, evidence that the jury probably should not hear. There are
thus good reasons to conduct FRE 104(a) factfinding outside the
presence of the jury—either at the sidebar, or at a time when the jury
is not present in the courtroom. FRE 104(c) expressly provides for
hearings on preliminary facts to be held outside the presence of the
jury, leaving the decision whether to hold such a hearing to the
discretion of the judge in most instances. (Subsections 1, 2, and 3
state circumstances when the hearing must be held outside the
presence of the jury.)
Once the judge has decided the preliminary fact question, the jury
does not re-decide the preliminary question. Nor is the jury ever told
what preliminary facts the judge has found. But sometimes, there is
overlap between a preliminary fact determination by a judge and
essential elements of a case that a jury must decide. For example,
statements of co-conspirators can be admitted over a hearsay
objection, if the judge finds under FRE 104(a) that a conspiracy
existed. But if one of the criminal charges is the defendant's
participation in the same conspiracy, this finding by the judge will not
be deemed binding on (or even be told to) the jury. The jury will be
fully free to decide whether or not the prosecution has proven the
existence of the conspiracy at issue.

230

KEY POINTS
1. FRE 104(a) tells us that fact questions that determine the
application of rules excluding relevant evidence are decided
by the judge. FRE 104(b) tells us that fact questions that
determine relevance and foundation are ultimately decided by
the jury.
2. In deciding preliminary fact questions pursuant to FRE 104(a),
the judge must herself be persuaded by a preponderance of
the evidence that the facts warrant the application of the rule.
The judge decides witness credibility, weighs the evidence,
and resolves factual disputes. The judge may consider
 inadmissible matter. The judge may also consider the
objected-to evidence itself in deciding whether the 104(a)
facts have been proven.
3. The party asserting the benefit of an evidence exclusion rule,
or an exception to such a rule, has the burden of production
and persuasion to show that the facts warrant application of
the rule.
4. After the judge decides the preliminary question under FRE
104(a), the judge either admits or excludes the item. The
judge does not inform the jury about the decision on the
preliminary question. If the item of evidence is admitted, the
opponent may still attempt to dispute that evidence, but the
jury does not redecide the preliminary question.

3. Explanation of FRE 104(b)

FRE 104(b) says:
Relevance That Depends on a Fact. When the relevance of evidence depends on
whether a fact exists, proof must be introduced sufficient to support a finding that the
fact does exist. The court may admit the proposed evidence on the condition that the
proof be introduced later.
At first glance, this rule may seem strange. Doesn't the relevance of
all evidence depend on the existence of a fact or facts? Clearly, this
rule is written to address a specific situation, and might have been
rewritten this way: “When the relevance of an item of evidence
depends on a missing fact, that item of evidence will be deemed
relevant if and when the offering party introduces evidence sufficient
to support a finding that the missing fact is true.” Here, “missing
facts” in our rewording of the rule, or “whether a fact exists” in the
actual wording of the rule, refers to facts that have not yet been
introduced at trial and supported with ESSF.
FRE 104(b) might thus be called “the missing fact rule.” But even
with this simplified name, we might still be scratching our heads over
the question, “What does it mean to say that a fact is missing from
the relevance of an item of evidence?” Fortunately, we've already
seen and analyzed this question.
As discussed above in connection with FRE 901, the foundation for
an item of evidence consists of all facts necessary to show that the
evidence is relevant—that is, to show the logical connection of the
offered evidence to the offering party's theory of the case. We've
also seen that FRE 901 states this concept of foundation as ESSF

231

that the item of evidence is what the offering party claims it is. We
discussed FRE 901 as relating to exhibits—that is, tangible things
offered in evidence—but the actual language of FRE 901 addresses
any “item of evidence.” Is “item of evidence” in FRE 901 properly
limited to exhibits? An “item” need not be a tangible thing;
dictionaries also define “item” as “a piece of information.” Thus
testimony about a fact or facts can constitute an item of evidence.
Nothing in theory or stated in the FRE suggests that items of
testimony are somehow exempt from the requirement that there be
ESSF that those testimonial items are what the proponent claims.
On the contrary, the theory that requires admissible evidence to be
relevant implies the opposite, so that FRE 901 is probably best
understood to apply beyond exhibits to testimonial “items” of
evidence.
FRE 104(b) confirms that complete foundations are required for all
items of evidence, including those set out entirely in testimony. In
other words, FRE 104(b) tells us how to deal with incomplete
foundations for evidence in general. When a fact is missing from the
complete foundation, the item of evidence is not yet relevant. FRE
104(b) specifically tells us three things. First, FRE 104(b) requires
that the missing fact must itself be offered in evidence such that a
reasonable jury can find it to be true—ESSF of the missing fact.
Second, FRE 104(b) expressly acknowledges the trial judge's
authority to admit evidence conditionally on an incomplete
foundation, subject to subsequent evidence completing the
foundation. Third, FRE 104(b) distributes the responsibility for this
factfinding between the judge and jury.
The implications of FRE 104(b) go somewhat further. As we will
see, FRE 104(b) implies a broad principle of foundation that applies
to all evidence. But a “problem” or objection under FRE 104(b) arises
only where a necessary fact is missing from a party's offer of
evidence.
Note on Conditional Relevance. FRE 104(b) is sometimes
referred to as the “conditional relevance” rule. This is because the
former version of the rule, before the restyling, spoke of “relevance
conditioned on a fact.” What we are calling the “missing fact” was
formerly called the “conditional fact” or “fact condition.” While it's
important to know that “conditional relevance” refers to FRE 104(b),
it's also important to understand that that phrase has a misleading
quality. Not only does it fail to track the current language (which
replaces the “fact condition” phrasing with “depends on a fact”), but it
also wrongly implies that conditional relevance is a special case of
relevance. In fact, FRE 104(b) is a general principle that applies to
all evidence: All relevance depends on other facts. It's just that a
problem only arises where one or more of those other facts are
missing. Putting it differently, evidence can be relevant only when it
has a complete foundation.
a. Relevance Depending on “Whether a Fact Exists”: FRE 104(b) as a General
Foundation Requirement
We have seen that certain facts about an offered item of evidence
must be probably true if the offered item is to be relevant. The beer
can is relevant only if it was a can of beer consumed by the plaintiff
shortly before the accident. The package of

232

white powder is relevant only if it contained cocaine and was sold

by the defendant to the government informant. A reasonable jury
must have sufficient evidence to believe that these facts about the
item of evidence are probably true—that's what we mean by ESSF;
otherwise, the exhibits aren't relevant. This idea is expressed in the
FRE 901 language requiring the proponent of evidence to “produce
evidence sufficient to support a finding that the item is what the
proponent claims it is.”
An example used by the Federal Rules of Evidence Advisory
Committee is illustrative: “[I]f a letter purporting to be from Y is relied
upon to establish an admission by him, it has no probative value
unless Y wrote or authorized it.” This could well have been written
about FRE 901, but in fact this statement is found in the Advisory
Committee Note to FRE 104(b). “No probative value,” of course,
means irrelevant. If the jury concludes that the letter was not written
by Y, it will not hold the contents of the letter against Y as an
admission. Obviously, evidence sufficient to support a finding that Y
wrote the letter would be an ordinary part of the foundation for the
letter; this would be one of the purposes for using the kinds of
handwriting authentication listed as examples in FRE 901(b)(2) and
(3). The foundational fact—that Y wrote the letter—is also the factual
condition on which the letter's relevance depends. Both FRE 901(a)
and 104(b) require that this factual condition be established by
evidence sufficient to support such a finding. Courts and scholars
have noted how, in this sense, foundation for exhibits, or FRE 901, is
“a special case” of the concept of “relevance that depends on a fact”
expressed in FRE 104(b).
Consider the following hypothetical example that involves an item
of testimony, but not an exhibit. In a car accident case, the plaintiff's
theory of the case is that the defendant caused the accident by
negligently failing to maintain her car in a safe condition: specifically,
that her brakes were not working properly and that she failed to get
them repaired despite being on notice of the problem. To prove
notice to the defendant, the plaintiff offers the testimony of a
technician at Kwik Lube, a retail chain specializing in oil changes.
The technician will testify that the defendant brought her car in for a
routine oil change. While performing the oil change, the technician
thought he noticed a possible brake problem, but believed that he
lacked the equipment and expertise to confirm his suspicion.
 Q. Did you tell the defendant about her possible brake problem?
A. I honestly can't remember one way or the other. I'd like to think that I did, but I see lots
of cars, some in better shape than others. Anyhow, I just do oil changes.
At this point, the defendant objects to the whole line of testimony,
arguing that it is irrelevant unless there's evidence that the
technician told the defendant that he suspected her brakes were
bad. The objection is sound. The “claim” about this item of testimony
is that it shows that the defendant was on notice of her brake
problem, and the substantive law would have required that she
inquire further (by taking the car to someone who could check out
the brakes). Whether the defendant was actually told about the
brake problem is a missing fact from this “item” of evidence. The
Kwik Lube story is not relevant without the missing fact. Using the
language of FRE 104(b), we see the problem as one in which the
“relevance of evidence” (here, the

233

technician's “bad brakes” testimony) “depends on whether a fact

exists” (the technician actually told the defendant about the bad
brakes). This triggers the applicability of FRE 104(b), which goes on
to require “proof ... sufficient to support a finding that the fact does
exist.” FRE 104(b); see Huddleston v. United States, 485 U.S. 681
(1988). In other words, there must be ESSF that the technician told
the defendant about the brakes.
b. Conditional Admissibility
In the “bad brakes” hypothetical above, we can see that the “item”
of evidence is not simply the technician's testimony. The “item” is the
factual claim that someone found a brake problem that was told to
the defendant. As with the earlier example of the package of cocaine
that required three witnesses to complete the foundation, here the
technician can't provide the complete foundation through his own
testimony.
A possible solution to the problem of the admissibility of the
technician's testimony is one that we have already discussed in the
context of FRE 901 and exhibits: Under the doctrine of conditional
admissibility, or connecting up, the plaintiff could ask that the
technician's testimony be admitted conditionally, subject to the
additional evidence sufficient to show that this information reached
the defendant. Perhaps another witness, such as a coworker or
customer, remembers hearing the technician tell the defendant, “I
think your brakes may be bad.” Perhaps the defendant herself
remembers, and will admit to, such a conversation. There might also
be circumstantial evidence of such a conversation: A witness might
testify that he overheard the the Kwik Lube technician tell an unseen
customer to get his or her brakes checked, at around the time the
defendant was known to have been in the shop.
FRE 104(b) expressly provides that “[t]he court may admit the
proposed evidence on the condition that the proof [of the missing
fact] be introduced later.” The device of conditional admissibility thus
includes admitting an item of evidence provisionally and controlling
the order of proof if necessary. FRE 104(b) questions are decided by
the judge in the same manner as other foundation questions under
FRE 602 and 901. The judge determines whether the offering party
has presented ESSF that the missing fact is true. See Huddleston v.
United States, 485 U.S. at 690 (“The court simply . . . decides
whether the jury could reasonably find the [missing] fact”). If the
party offering the conditionally admitted item provides this ESSF, the
item will eventually be deemed admitted, and it will ultimately be up
to the jurors to decide whether the item of evidence is relevant to
their decision. On the other hand, if the offering party fails to provide
the necessary required proof of the missing fact, the conditionally
admitted item of evidence should be excluded and the jury instructed
to disregard that item.1

234

4. FRE 104(b) in Practice

FRE 104(b) expresses a foundation concept that applies to all
evidence. Every item of evidence depends on at least some other
facts in order to be relevant. Does this mean that trials become
hopelessly bogged down by FRE 104(b) objections, hearings, and
separate jury findings on every item of evidence? The answer is no,
no, and no.
In actual practice, there are relatively few problems and objections
that arise under FRE 104(b). (This is reflected in the fact that there
are very few reported cases in which preliminary questions of fact
are identified and formally decided under FRE 104(b), relative to
other evidence issues.) Despite the ubiquity of the foundation
requirement, FRE 104(b) is expressed as a rule governing missing
foundation evidence. Thus, an FRE 104(b) problem arises only
where there is a missing foundation fact for an offered item of
evidence. Out of the hundreds of “items of evidence” (exhibits and
testimonial facts) introduced in an average trial, it would be
surprising to see more than a handful of missing fact problems, if
any. In the remainder of this section, we will look briefly at the
recurring situations in which FRE 104(b) objections arise, and how
those objections are made and resolved.
Objections Under FRE 104(b). FRE 104(b) objections arise when
it appears that an offered item of evidence seems irrelevant but
could potentially be made relevant with more information. There is
no particular required form or phrasing to the objection. The
objecting party might simply argue that the offered evidence is
irrelevant, or might make a more thorough point that the evidence is
irrelevant in the absence of one or more particular facts. The
objecting party could cite FRE 104(b) or even FRE 401/402, the
relevance rules.
There are several possible resolutions to the objection, depending
on what has occurred in the trial. First, as we have seen, the offering
party can ask to have the offered evidence admitted conditionally,
subject to connecting up by providing ESSF of the missing fact(s).
Second, it is possible that the purportedly missing facts are already
in the record. The offering party can then simply remind the judge
and opposing counsel of the previously admitted evidence. In the
example from A Few Good Men, discussed earlier in this chapter,
Tom Cruise, defending two marines accused of homicide, offered
evidence of the contents of the victim's closet. The evidence seemed
irrelevant on the surface, until defense counsel pointed out that the
prosecution's theory of the case included the assertion that the
victim, Private Santiago, had been ordered to leave the base but was
killed hours before his flight was scheduled to leave. The evidence
that clothes remained in Private Santiago's closet suggested that he
had not yet packed his bags, which could support the inference that
he had not in fact been ordered to leave the base. The evidence
appeared irrelevant until defense counsel pointed to an apparently
missing, but previously introduced fact—Santiago had supposedly
been ordered off the base—that made the evidence relevant.
(Remember: Evidence can be relevant by making a fact of
consequence more probable or less probable. See FRE 401.)
Third, it is possible that the judge might simply overlook the
incomplete foundation, and dispense with the formality of conditional
admissibility, because the missing

235

fact is an obvious one that the offering party has promised in her
theory of the case or opening statement. We discussed overlooked
foundations in connection with exhibits offered under FRE 901. The
same issue pertains to testimonial evidence under FRE 104(b).
Suppose the first item of evidence offered by the plaintiff in a breach
of contract case is the plaintiff's testimony describing an oral
agreement between herself and the defendant. Technically speaking,
the contract is not relevant without the “fact” that it was breached by
the defendant. The complete foundation is not “this is a contract
between the plaintiff and defendant,” but rather “this is a contract
with the plaintiff that was breached by the defendant.” Yet opposing
counsel and the judge are unlikely to insist that the contract
testimony be “admitted conditionally” subject to ESSF that the
contract was breached. Why? Because much of the plaintiff's case
will be devoted to showing that the contract was breached. The
plaintiff's theory of the case, probably described in her opening
statement, has promised ESSF that the contract was breached. If
there were not evidence sufficient to support a finding of breach,
judgment as a matter of law would have to be entered against the
plaintiff—perhaps even before trial, in a motion for summary
judgment. To apply conditional admissibility in this context would
appear to the participants as a needless formality.
Inadequate Generalizations as Missing Facts. There is a fourth
possibility for resolution of an FRE 104(b) objection. The offering
party might try to argue that the evidence is relevant without the
purportedly missing fact. The nature of this argument is that the
missing fact can be supplied by inference. In the earlier hypothetical
example, the Kwik Lube technician could not remember one way or
the other whether he actually told the defendant she might have a
brake problem. But plaintiff's counsel might argue that that
supposedly missing fact can be inferred from his testimony. Consider
the following relevance chain:

Plaintiff's counsel would argue that the first inferential step can be
taken by making the following generalization about the world: Oil-
change technicians who see a brake problem probably notify their
customers about it. As discussed in Chapter Three, a relevance
chain always depends on making inferences based on applying
commonsense generalizations about the world to evidence
presented at trial. Here, the controversial link in the chain is between
the evidence and the first FOC. What makes the inference
controversial is the generalization. Is it a matter of common
knowledge that oil-change technicians probably report suspected
brake problems to their customers? More accurately, could a
reasonable jury believe that that generalization is probably true? The
relevance argument will turn on that question.

236

This example illustrates a recurring pattern of FRE 104(b)

problems. Whenever a relevance argument arises due to an
arguably inadequate generalization—one that is weak, or untrue, or
not a matter of common knowledge—a judge can require that the
generalization be replaced by actual evidence. The inadequate
generalization becomes, in effect, a missing fact on which relevance
depends, and FRE 104(b) says that such missing facts must be
proven by ESSF.
There are two ways for an offering party to substitute admissible
evidence for an inadequate generalization. One is to offer case-
specific evidence. Evidence specifically showing that the oil-change
technician's observation about the defendant's brakes was conveyed
to the defendant should suffice to establish the missing fact. It
thereby replaces the perhaps questionable generalization that oil-
change technicians usually warn their customers.
The second way is to offer expert testimony. Sometimes the
generalization will not be a matter of common knowledge, in which
case the only way to prove it may be through expert testimony. This
will be discussed further in Chapter Nine.
Judge and Jury Functions Under FRE 104(b). FRE 104(b)
questions are decided by the judge in the same manner as other
foundation questions, under FRE 602 and 901. The judge
determines whether the offering party has presented ESSF that the
item of evidence is what the proponent claims. The evidence may be
presented in front of the jury, or might be summarized at the sidebar
as an “offer of proof” under FRE 103. Judges may permit both sides
to present evidence, and may even hold a hearing outside the
presence of the jury pursuant to Rule 104(c). Any evidence
presented (or summarized) on this question has to be admissible in
order to be considered. But in screening the sufficiency of this
evidence, the judge may not take witnesses' credibility into account.
The sufficiency standard (ESSF) asks whether a reasonable jury
could find by a preponderance of the evidence that the offering party
has made out her evidentiary claim. Huddleston v. United States,
485 U.S. 681, 690 (1988). The judge does not ask whether she
herself is persuaded that the evidentiary claim is probably true.
Rather, “The court simply . . . decides whether the jury could
reasonably find the [missing] fact.” Huddleston, 485 U.S. at 690.
Again, this is analogous to the civil summary judgment standard.
As implied by the foregoing discussion, the judge has four decision
options: (1) admit the evidence by finding that the missing fact has
been shown by ESSF; (2) admit the evidence by finding that a
reasonable jury can infer the missing fact by relying on the contested
generalization; (3) admit the evidence conditionally, subject to linking
up later; (4) exclude the evidence as irrelevant, due to the failure to
show ESSF of the missing fact.
If the evidence is admitted conditionally, and it later becomes
evident that the offering party has failed to produce ESSF of the
missing fact, the judge can at that time instruct the jury to disregard
the evidence. In that way, the judge effectuates the admissibility
condition. The judge might also, on request of the opposing party,
instruct the jury that an item of evidence has been admitted only
conditionally, and later advise the jury whether the condition has
been fulfilled. As with other foundation questions, even if the
evidence is admitted, the opposing party can still introduce

237

evidence that the missing fact is untrue, and can argue to the jury
that the item of evidence without that missing fact should be
disregarded as irrelevant.
Finally, the jury is not expected to make an express, particularized
finding on whether a missing fact in an FRE 104(b) situation has
been proven to its satisfaction. The jury “finding” is purely
hypothetical. As the Supreme Court stated in Huddleston, “The court
simply . . . decides whether the jury could reasonably find the
[missing] fact[.]” 485 U.S. at 690 (emphasis added). The ESSF
requirement is directed to the parties and the judge to ensure that
evidence sufficient to support a finding of the missing fact has been
presented. If the jury ultimately decides to believe that the foundation
for the offered evidence has been completed—because the missing
fact has been proven (e.g., the technician told the defendant about
her bad brakes)—then the jury will consider the entire item of
evidence along with the other evidence in the case. If the jury is not
persuaded that the missing fact has been proven, it simply will
disregard ignores the item of evidence (e.g., the technician's
unreported suspicion of a brake problem) when weighing all the
evidence during its deliberations. And if the jury believes that one or
more witnesses telling the story of warning the defendant about her
bad brakes were lying on a significant point, the jury will discount
that part of the evidence.

5. Theoretical Justifications for the FRE 104(a)/104(b)

Distinction
There are important reasons for carefully maintaining the FRE
104(a)/104(b) distinction. FRE 104(a) questions are mainly those in
which relevant evidence is subject to exclusion under one of the
many policy-based exclusion rules in the law of evidence.2 The facts
that trigger an exclusion rule, or that qualify an offered item of
evidence for an exception to an exclusion rule, can be proven by
inadmissible evidence. Because 104(a) questions deal with
excludable relevant evidence, the evidence under consideration can
logically be used against the party opposing its admission even if
policy reasons mandate its exclusion from evidence. To allow the
jury to hear the evidence while its admissibility is being debated can
prejudice the opposing party's rights if the evidence is ultimately
excluded. Such a situation would leave the opposing party with the
cold comfort of an instruction for the jury to disregard evidence it just
heard. This is what is meant by the standard lawyers' refrain, “You
can't unring a bell.” While, theoretically, a judge has the training and
discipline to disregard inadmissible matter that she hears, a jury is
undoubtedly less able to do so.
In contrast, FRE 104(b) questions, and other foundation questions,
are those in which the offered evidence is irrelevant if the preliminary
facts do not pan out. In most cases, there is little or no harm done if
the jury hears evidence that is ultimately deemed irrelevant. The
irrelevance of the evidence means that it has no logical probative
value; and because relevance is a commonsense concept, the jury
can be trusted to apply logic and common sense to disregard
evidence whose relevance depends on an alleged fact that turns out
to be untrue. Moreover, FRE 104(b) fact conditions, as

238

well as FRE 901 or 602 foundations, must be based only on

admissible evidence. For these reasons, the risk of unfair prejudice
is much lower in FRE 104(b) situations.
The division of preliminary fact issues into FRE 104(a) questions
for the judge and FRE 104(b) questions for the jury was a significant
reform in federal evidence law. It was designed to liberalize the
admission of evidence, to guarantee more consistently the jury's
function in resolving factual disputes and credibility issues, and to
reduce the ability of judges to keep strict control over the parties'
presentation of their cases. Prior to the Federal Rules of Evidence,
judges usually assumed the authority to decide all preliminary
questions of fact themselves, pursuant to the preponderance of the
evidence standard or even a higher “clear and convincing” standard
of proof for some questions. The lower standard of FRE 104(b)
protects, at least to some degree, the authority of the jury over
factfinding, while giving more leeway to the parties and preserving
the jury's function. If preliminary questions raised by FRE 602
(personal knowledge) and FRE 901 (authentication and
identification) were to be decided by the judge under the
preponderance standard of FRE 104(a), “the functioning of the jury
as a trier of fact would be greatly restricted and in some cases
virtually destroyed. These are appropriate questions for juries.”
Advisory Committee Notes to FRE 104. Thus, maintaining the FRE
104(a)/(b) distinction furthers the overarching goal of the Federal
Rules: to promote rational decisionmaking through the liberal
admission of relevant evidence.

KEY POINTS
1. FRE 104(b) fact questions are those that determine relevance
and foundation. FRE 104(b) provides that when the relevance
of an offered item of evidence depends on a missing fact, the
offering party must also present ESSF that the missing fact is
true. This is a general version of the foundation requirement
applied to more specific types of evidence in FRE 602 and
901.
2. FRE 104(b) objections arise only where a fact necessary to
show relevance of an offered item of evidence is missing.
Where the fact is missing because it has not yet been shown
by ESSF, the evidence depending on that missing fact can be
admitted conditionally, subject to later proof (“connecting up”)
that the missing fact is probably true.
3. Both parties may present evidence on FRE 104(b) “factual
condition” questions, and the judge must determine whether
there is ESSF by a reasonable jury that the missing fact is
true, by a preponderance of the evidence. In making this
decision, the judge may consider only evidence that would be
admissible to the jury. In contrast to FRE 104(a), the judge
may not weigh the evidence, resolve factual disputes, or
consider witness credibility. If the evidence is admitted, the
opponent may still present evidence relevant to disprove the
missing fact to the jury. The jury will decide the preliminary
fact as part of its ultimate decisionmaking.
4. FRE 104(b) “missing fact” problems sometimes arise when
the judge determines that a generalization in a chain of
relevance for an offered item of evidence is doubtful.
239

5. The FRE 104(a)/(b) distinction preserves the jury's factfinding

role by reserving to it the authority to decide all factual
disputes and witness credibility issues underlying the
relevance of offered evidence.

PROBLEMS
4.12. Return to Problem 4.4, United States v. Ray, at page 208.
Exhibits 1 and 2 have been admitted into evidence. Exhibit 3
is a photocopy of Exhibit 1. It bears original handwritten initials
“BR” on the upper left corner. Government investigators have
obtained the following information from interviewing Beth
Barker:
I have been employed as Bernard Ray's executive secretary since 2005. I adhere
to the following practice in handling Mr. Ray's mail, including hand delivered
documents. Each work day I place incoming mail and other delivered documents
in the “in” box on Mr. Ray's desk at around 10 . ., around 1:30 . . and around
4:00 . . At 8:30 . . each morning, I take all of the documents in Mr. Ray's “out”
box, check to make sure that Mr. Ray has initialed them, and then place them in
Mr. Ray's files. Mr. Ray always reads and initials his mail and other documents
and puts them in his “out” box. In response to a request from federal
investigators, on September 1 of 2015 I found Exhibit 3 in Mr. Ray's files in a
folder labeled “Correspondence–Andrews.” I recognize the initials “BR” as Mr.
Ray's handwriting.
The prosecution offers Exhibit 3 into evidence to prove that
Ray read Exhibit 3 prior to his sale of stock on March 16,
2015. Is there an FRE 104(b) objection to admitting the
memo? Is there an argument that the existence of the memo,
without more, is sufficient to meet this objection? Would the
testimony of Barker be sufficient to prove any missing facts?
What should the trial court do?
4.13. Plaintiff seeks to prove that defendant Asbestos, Inc. (AI), a
manufacturer of asbestos fireproofing material, knew or
should have known of the dangers of asbestos before selling
 its product to Plaintiff, and that AI was therefore liable to
Plaintiff for failure to warn. AI sold the asbestos material to
Plaintiff in September of 1970. Plaintiff's only evidence that AI
had knowledge of the danger of such material is an undated
five-page document warning of the dangers of asbestos,
found in the bottom of a file drawer belonging to an AI official,
in a stack of unrelated and undated papers. The drawer was
labeled “1969-1972.” Should the document be admitted into
evidence against AI?
4.14. Lindstrom is charged with possession and sale of two boxes
of stolen smart phones. Knowledge that the smart phones
were stolen is the one element of the crime that Lindstrom
disputes. To prove knowledge, the prosecution offers the
testimony of two witnesses, a store owner and an undercover
FBI agent, in which Lindstrom had offered to sell them
televisions and kitchen appliances at a suspiciously low price
and without a bill of sale. It was undisputed that these other
incidents occurred around the same time as the charged
smart phone sale. The prosecution argues that Lindstrom's
contemporaneous sale of apparently

240

stolen TVs and appliances made it more likely that he knew the
smart phones were stolen. Lindstrom claims that he did not
know that the TVs and appliances had been stolen either, and
he objects that the evidence of the television and kitchen
appliance incidents cannot be admitted unless the trial court
makes a preliminary factual finding by a preponderance of the
evidence that those items had been stolen. How should the
court rule?

6. Reflection on FRE 104(b): Is There a Conditional Relevance

“Problem”?
A handful of commentators criticized FRE 104(b) some years ago,
claiming that the rule—at that time called the “conditional relevance”
rule—would undermine the efficiency of trials. “[S]topping a trial to
entertain [FRE 104(b)] arguments, decide which point should be
proved first, obtain a commitment to prove some other point, assess
the sufficiency of proof, and even instruct the jury, would confound
trials, confuse everyone, and hamstring lawyers and judges.”
Christopher B. Mueller & Laird C. Kirkpatrick, Evidence §1.13 (2d ed.
1999); see also Vaughn C. Ball, The Myth of Conditional Relevancy,
14 Ga. L. Rev. 435, 445-454 (1980) (worrying about requiring a
separate, express jury finding on every FRE 104(b) issue). As the
relative infrequency of reported FRE 104(b) cases attests, these
fears have simply not born out in practice. FRE 104(b) objections
arise infrequently, for the reasons discussed above. Moreover, the
concern about frequent and confusing jury findings on FRE 104(b)
issues was, from the start, based on a misunderstanding of the rule:
As noted above, the jury finding is purely hypothetical, and the only
finding actually required is the one that must be made by the judge
on any disputed foundation question.
A more enduring criticism argues that the ESSF standard of FRE
104(b) appears to be a higher standard than, and inconsistent with,
the “any tendency” standard stated in FRE 401. These critics argue
that since all offered items require additional facts to link them to the
case at hand, an FRE 104(b) objection can be made to any offered
evidence at any time. According to these critics, the mere
happenstance of basing a relevance objection on FRE 104(b) can
take a relevance argument out of the permissive FRE 401/402
relevance rule, which makes clear that relevance does not depend
on sufficiency. Evidence is relevant if it makes another relevant fact
more probable, and does not require a showing that it makes
another fact probably true (the ESSF/preponderance standard). See
Ball, supra; Ronald J. Allen, The Myth of Conditional Relevancy, 25
Loyola L.A. L. Rev. 871 (1992); Dale A. Nance, Conditional
Relevance Reinterpreted, 70 B.U. L. Rev. 447, 459-462 (1990);
Richard Friedman, Conditional Probative Value: Neoclassicism
Without Myth, 93 Mich. L. Rev. 439, 449 (1994).
 The most sustained version of this argument has been made by
one of the coauthors of this book. See Allen, supra, The Myth of
Conditional Relevancy. Another coauthor disagrees. See David S.
Schwartz, A Foundation Theory of Evidence, 100 Geo. L. Rev. 95
(2011). According to Schwartz, conditional relevance critics mix up
two different things. To be sure, relevant evidence need only make
another fact slightly more probable, not probably true. But in order to
have that relevant quality,

241

evidence must itself be based on facts that are probably true. The
package of facts that make an item relevant (its foundation) must all
be sustainable by ESSF. Thus, FRE 104(b)'s requirement that a
missing fact must be probably true for evidence to be relevant is, he
claims, consistent with FRE 401. Once the foundation is complete,
the offered evidence need only have a slight tendency to make
another fact more probable.

PROBLEM
4.15. Kristof is accused of first-degree homicide for the alleged
premeditated killing of his uncle Max, who died in a boating
incident in which Kristof was the only other person present.
The prosecution's theory of the case is that Kristof was
motivated by financial gain: specifically, that Max rewrote his
will two months before his death to add Kristof as an heir. An
earlier version of the will divided Max's estate equally between
his two children, Peter and Roxana; the revised will, gave
equal one-third shares to Peter, Roxana, and Kristof. In his
defense, Kristof argues that Max's death was accidental. As to
the will, Kristof claims he had no knowledge that he was
named in it. The prosecution offers the revised will into
evidence without any evidence that Kristof knew of its
existence or contents. Defense counsel objects that the will is
irrelevant to establish a motive without ESSF that Kristof knew
 about it. (No other relevance theory besides motive has been
offered by the prosecution.) The prosecution argues that the
mere existence of the will increases the probability that Kristof
had a motive, and is therefore relevant.
How should the court rule? Consider the following subsidiary
questions: Does the existence of the will make the existence
of a motive probable? If not, is the prosecutor simply asking
the jury to speculate about a possible motive? Does the mere
possibility of a financial gain motive (through a will) increase
the probability that Kristof murdered his uncle over what the
probability would be without any evidence of the will? Note
that, even with ESSF that Kristof knew about the will and
therefore probably had a motive, the motive evidence has only
slight probative value. Very few people who stand to gain from
the death of another person actually kill that person; here,
Peter and Roxana stood to gain to the same extent as Kristof,
but they have not been charged.

D. THE BEST EVIDENCE RULE

The so-called best evidence rule requires a party to present an

original or exact duplicate of any document (“writing, recording, or
photograph”) the party offers in evidence—at least when the original
is available and the document is offered to prove its content. The
theory of the rule is simple: When a writing, recording, or photograph
is offered to prove the facts contained in it, the chances are good
that the original

242

will be more trustworthy than an inexact copy or a description of the

original. The requirement to produce the original may be excused,
and “other” or “secondary” evidence of the content may be admitted
if the absence of the original is explained or justified. The best
evidence “rule” is really a complex of rules in the Federal Rules, FRE
1001-1008.
 The best evidence rule (“BER”) is a rule for excluding relevant
evidence: It excludes “other evidence” of an original document's
content in any form (testimony or exhibits) when an original writing,
recording, or photograph can and should be introduced instead. It
does not specify a showing that must be made affirmatively to
establish the relevance of an item of evidence. Thus, the BER differs
from foundation rules like FRE 901, 104(b), and 602. But we include
the BER in this chapter as an organizational convenience, due to its
close connection to the foundation questions involved in offering
exhibits into evidence.
We also note that the rule is misnamed. It does not literally require
the presentation of the “best” form of evidence, as in the most
reliable or persuasive, available to the party. Indeed, there may be
cases where an original document is not the most reliable or
persuasive evidence, and yet the only way to satisfy the rule would
still be to produce the original document. More generally, there is no
“best evidence principle” anywhere in the Federal Rules that requires
the proponent to offer the best available evidence to prove a point:
Generally speaking, a party may prove its case by any admissible
evidence, regardless of whether anything “better” is available. But
suggestions by some scholars to rename the rule more descriptively
as “the original document rule” have not caught on.

1. FRE 1001-1008
RULE 1001 DEFINITIONS THAT APPLY TO THIS ARTICLE
In this article:
(a) A “writing” consists of letters, words, numbers, or their equivalent set down in
any form.
(b) A “recording” consists of letters, words, numbers, or their equivalent recorded
in any manner.
(c) A “photograph” means a photographic image or its equivalent stored in any
form.
(d) An “original” of a writing or recording means the writing or recording itself or
any counterpart intended to have the same effect by the person who executed or
issued it. For electronically stored information, “original” means any printout—or
other output readable by sight—if it accurately reflects the information. An “original”
of a photograph includes the negative or a print from it.
 (e) A “duplicate” means a counterpart produced by a mechanical, photographic,
chemical, electronic, or other equivalent process or technique that accurately
reproduces the original.

RULE 1002. REQUIREMENT OF THE ORIGINAL

An original writing, recording, or photograph is required in order to prove its content
unless these rules or a federal statute provides otherwise.

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RULE 1003. ADMISSIBILITY OF DUPLICATES
A duplicate is admissible to the same extent as the original unless a genuine question
is raised about the original's authenticity or the circumstances make it unfair to admit
the duplicate.
RULE 1004. ADMISSIBILITY OF OTHER EVIDENCE OF CONTENT
An original is not required and other evidence of the content of a writing, recording, or
photograph is admissible if:
(a) all the originals are lost or destroyed, and not by the proponent acting in bad
faith;
(b) an original cannot be obtained by any available judicial process;
(c) the party against whom the original would be offered had control of the original;
was at that time put on notice, by pleadings or otherwise, that the original would be a
subject of proof at the trial or hearing; and fails to produce it at the trial or hearing; or
(d) the writing, recording, or photograph is not closely related to a controlling issue.

RULE 1005. COPIES OF PUBLIC RECORDS TO PROVE CONTENT

The proponent may use a copy to prove the content of an official record—or of a
document that was recorded or filed in a public office as authorized by law—if these
conditions are met; the record or document is otherwise admissible; and the copy is
certified as correct in accordance with Rule 902(4) or is testified to be correct by a
witness who has compared it with the original. If no such copy can be obtained by
reasonable diligence, then the proponent may use other evidence to prove the content.
RULE 1006. SUMMARIES TO PROVE CONTENT
The proponent may use a summary, chart, or calculation to prove the content of
voluminous writings, recordings, or photographs that cannot be conveniently examined
in court. The proponent must make the originals or duplicates available for examination
or copying, or both, by other parties at a reasonable time or place. And the court may
order the proponent to produce them in court.
RULE 1007. TESTIMONY OR STATEMENT OF A PARTY TO PROVE CONTENT
The proponent may prove the content of a writing, recording, or photograph by the
testimony, deposition, or written statement of the party against whom the evidence is
offered. The proponent need not account for the original.
 RULE 1008. FUNCTIONS OF THE COURT AND JURY
Ordinarily, the court determines whether the proponent has fulfilled the factual
conditions for admitting other evidence of the content of a writing, recording, or
photograph under Rule 1004 or 1005. But in a jury trial, the jury determines—in
accordance with Rule 104(b)—any issue about whether:

244
(a) an asserted writing, recording, or photograph ever existed;
(b) another one produced at the trial or hearing is the original; or
(c) other evidence of content accurately reflects the content.

2. Explanation of Best Evidence Rule

The Basic Rule. FRE 1002 and 1003 provide the basic principle of
the best evidence rule (“BER”): An original is required when a
proponent seeks to prove the content of a writing, recording, or
photograph. An exact duplicate (such as a photocopy) can be used
instead of the original so long as there is no reason to doubt the
accuracy of the duplicate. FRE 1002 says that the rule applies only
to a “writing, recording, or photograph.” These terms are defined in
FRE 1001. For convenience, we will use the term “document” in this
discussion as an occasional substitute for “writing, recording, or
photograph.”
Exceptions. FRE 1004 further explains the meaning of the rule by
setting out the principal exceptions. “Other evidence” of the content
of the original document is admissible if the original document is
unavailable to the offering party because it has been lost or
destroyed, is being withheld by the opposing party, or can't otherwise
be obtained by judicial process. But if the original was lost or
destroyed by the offering party in bad faith, this exception is
unavailable. Finally, the original is not required where the writing,
recording, or photograph is “not closely related to a controlling
issue.”
What does it mean to qualify for an exception to the best evidence
rule? Putting it another way, what does it mean to say that an
“original [or exact duplicate] is not required” to “prove [the] content”
of a writing, recording, or photograph? It means that the content of
the document can be proven by “other evidence.”
Other Evidence of Content. FRE 1004's reference to “other
evidence of the content” means a visual or verbal depiction or
summary of a document that is not an exact duplicate. Most
commonly, other evidence that is objectionable under the BER will
consist of a verbal description by a witness. For example, a witness
might say: “I read the contract, and it said basically that the
defendant promised to pay me $50,000 for my services.” “I saw the
video, and it showed a police officer hitting the plaintiff with his
baton.” These are both examples of verbal descriptions of a
document's content. They are “other evidence” of the content of the
document—“other” than showing the jury the writing, recording, or
photograph itself.
A verbal description is not the only prohibited means of “proving”—
in essence, conveying to the factfinder—the content of a document.
A party might offer a sketch that attempts to replicate a photograph.
Or perhaps the lawyer's secretary listened to an original audiotape
and typed up a verbatim transcript. The transcript is still “other
evidence” of the content of the original tape recording. This is true
even if the transcript is “better” than the tape: Perhaps the recording
is of poor quality, whereas the transcript is 100 percent accurate and
is more convenient than playing the tape. It is still “other evidence” of
the content of the tape, and can't be admitted in evidence if the tape
is available. Here, then, is an example of how the rule does not
necessarily end up requiring the literal “best” evidence.

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In Order to Prove Its Content. The BER, by its terms, applies

when a writing, recording, or photograph is offered “in order to prove
its content.” In fact, a writing, recording or photograph is nearly
always introduced in evidence because something contained in it is
relevant to the case. If the offering party maintains that the content of
the written, recorded, or photographic exhibit is relevant, then the
exhibit is offered “to prove its content” within the meaning of the rule.
Therefore, the BER potentially applies whenever a document is
available to prove a point. The question then becomes, when such a
document is available, when does the BER block “other evidence” of
the content? The analysis for answering this question is probably the
most difficult aspect of the BER. We address it in the next section.

3. When Is Evidence Offered to “Prove [the] Content” of a

Document?
When does the Best Evidence Rule apply? The BER has no bearing
when a party tries to prove a fact in the absence of any relevant
documentary evidence. On the other hand, when a party seeks to
introduce an original document (or exact duplicate) to prove a fact,
the BER technically governs, but the party's use of the original or
duplicate conforms to the rule, so there is no need to interpret or
argue over the rule.
Interpretive questions and arguments about the BER thus arise
only where a party seeks to prove a fact through “other evidence”
when a document that could be used to prove the same point does
exist (or did exist). The question then becomes whether in fact the
party is trying to “prove the content” of the document. If the answer
to that question is yes, then the BER does apply; and if none of the
exceptions (FRE 1004, 1006, and 1007) are applicable, then the
BER will prohibit the use of “other evidence.” The question of
whether evidence is offered to prove the content of a document is
probably the most challenging concept regarding the BER. We will
try to break it down in this section.
The best way to think about this question is by distinguishing
broadly between two situations involving documentary evidence. In
the first situation (let's call it “Type 1”), the content of a writing,
recording, or photograph is a fact of independent legal significance in
the case. In the second situation (“Type 2”), the goal is to prove an
underlying event, one that is not itself a writing, recording, or
photograph. But there may be documentary (written, recorded, or
photographic) evidence depicting that event. In Type 1 situations, the
best evidence rule always applies. In Type 2 situations, the best
evidence rule applies only to the party's reliance on the document to
prove the underlying event; but it does not bar evidence that avoids
reliance on the document, to prove the underlying event.
Type 1: Document Content Has Independent Legal
Significance. In some instances, the content of a writing, recording,
or photograph has independent legal significance. A common
example is a written contract. The content of such a writing is a
relevant occurrence in itself, and has independent legal significance:
It is the manifestation of the exchange of promises creating legally
enforceable obligations. The terms of other legal instruments, such
as wills, are likewise legally significant

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occurrences. A document might also constitute a crime or tort. For

instance, a libel is a printed and published statement that is false and
damaging to the plaintiff's reputation. This, too, is in itself a relevant
occurrence manifested in the written document. If notice or
knowledge is an issue in the case, the content of the document
giving that notice or knowledge is likewise a relevant event.
Putting it another way, in each of the above examples the writing,
recording, or photograph is the source of the relevant fact. Where
this is the case, the content of the document must necessarily be
proven somehow in order to get the relevant fact into the record. The
best evidence rule always applies in this situation.
Documents whose contents have independent legal significance
have two other characteristics that might help you identify them as
belonging to this category. First, in all of these examples, the writings
and recordings are “nonhearsay” statements that are relevant as
legally operative facts or for their effect on the listener (or viewer), as
will be discussed in Chapter Eight, infra. Their relevance is not that
they contain truthful assertions of fact, but rather that they manifest
intentions or opinions or that they had a certain effect on persons
who saw or read them. Second, such documents are “real” rather
than “depictive” evidence, as discussed above in connection with
FRE 901. They played a role in the litigated events, rather than
simply recording or depicting relevant events.
Type 2: Document Could Be Used to Prove an Underlying
Event. Writings, recordings, and photographs can also be relevant
as evidence because they provide a record of what happened. But
when the proponent uses a percipient witness to prove that an event
happened, there is no requirement that the proponent produce a
recorded version of that event instead.
In such instances, the underlying event occurs outside of the
writing, recording, or photograph, but is captured or described in the
document. In this situation, the writing, recording, or photograph is
depictive (as opposed to real) evidence. The best evidence rule
applies only to evidence that relies on the writing, recording, or
photograph to prove the underlying event. Other evidence offered to
prove the underlying event without relying on the medium of the
writing, recording, or photograph is not affected by the BER. Even
though a writing, recording, or photograph exists depicting the same
underlying event, that does not bar “other evidence” of that
underlying event, in the form of testimony, visual reconstructions, or
the like—so long as that other evidence is not derived from viewing
the writing, recording, or photograph. The witness's testimony is
being used to prove the event, not the content of a record. “The fact
that a video recording may at times be in fact the 'best' evidence of
what occurred does not render first-hand testimony of the event
incompetent.” Jackim v. Sam's E., Inc., 378 Fed. Appx. 556, 565-566
(6th Cir. 2010).
A “Type 2” Example. An example can make this point clearly.
Suppose in a police excessive force case, a police officer was seen
by several eyewitnesses hitting an unresisting suspect with a baton.
In addition to the eyewitnesses, a passerby captures the incident on
a video taken with his cell phone. The plaintiff offers testimony from
one of the eyewitnesses describing the entire incident. The plaintiff
then offers the testimony of the passerby to corroborate the
eyewitness. On direct examination, the

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passerby admits “I did not actually see the incident, because I was
looking into my cell phone to aim the camera at the officer and the
plaintiff. There was glare from bright sunlight, so I couldn't see the
image while it was recording. However, I later watched my video,
and saw the whole thing on the video. Here's what happened. . . .”
How does the best evidence rule apply to these two witnesses'
testimony? The first witness is simply presenting relevant eyewitness
testimony based on firsthand knowledge, in accord with FRE 602.
This testimony is not objectionable. Even though there happens to
be a video of the incident, the BER does not apply to the
eyewitness's testimony, because the eyewitness is not proving the
contents of the video: He is proving what he saw, directly. This
analysis would not change even if the video were introduced in
evidence—the witness is still testifying to what he saw. Nor would
the analysis change even if the eyewitness also served as a
foundation witness to introduce the video—by offering “then and
now” testimony to say that the video is a fair and accurate depiction
of what he saw. In that case, the eyewitness has still provided a
firsthand account of what he saw, plus foundation testimony for
introducing the original (or a duplicate) of the video. Since the
original video is offered, it conforms to the best evidence rule. What
the eyewitness is not doing is trying to describe the content of the
video in lieu of his own firsthand perception. Testifying that the video
is a fair and accurate depiction of what happened is not what the
BER means by the phrase “other evidence of content.”
However, the passerby's testimony does trigger, and violate, the
BER. The passerby is not describing the excessive force incident as
he saw it firsthand, but rather describing what the video shows.
Although the plaintiff's ultimate objective in presenting the passerby's
testimony is to prove the underlying excessive force incident, here—
unlike with the eyewitness testimony—the passerby's testimony
does so only by proving what was on the video. The passerby's
testimony relies on the video, not on firsthand knowledge of the
underlying event. The passerby's description of what he saw on the
video is what the BER means by “other evidence” of a recording. But
the BER prohibits the use of “other evidence” of a recording if the
recording is available. Rather than having the passerby testify to
what he saw on the video, the plaintiff would have to offer the video
itself into evidence.
“Type 2” Situations: Document and Other Evidence Both
Permitted. As this last comment should make clear, when there are
both one or more eyewitnesses to an underlying event and a
document recording that event, both can be offered in evidence. The
only restriction is that a witness will not be allowed to summarize or
describe the content of the document.

4. Best Evidence Rule: Definitions and Exceptions

a. Definitions

Writings, Recordings, or Photographs. The definition of writings,

recordings and photographs in FRE 1001 is broad, and probably
intended to convey common understandings of these things. Where
the applicability of the definition is debatable,

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it may be useful to refer to the pre-restyling version of the rule. For

example, is a video a “recording” or “photograph” (or a combination
of the two)? The former rule explicitly defined “photograph” to include
“still photographs, X-ray films, videotapes and motion pictures.”
Remember that the re-styling was not intended to change the
substance of any rule. The main difference in language is a switch
from an effort to list various technologies to a broad definition
intended to encompass technological changes in the production of
writings, recordings, or photographs.
 Originals and Duplicates. An “original” of a document includes
the intuitive sense of the word “original” with certain additions: An
accurate printout of an electronic document or photographic print
from a negative (or the negative itself), are originals. “Counterparts”
intended to function as originals are both (or all) deemed original.
For example, a frequently followed contracting formality is to print
two identical contracts with signature lines; each party signs both
copies, so that each party may have a contract bearing original
(rather than photocopied) signatures. Both are deemed originals by
FRE 1001(d).
A duplicate is an accurate copy reproduced from the original by an
automated technological process, like photocopying. FRE 1001(e).
(Gone are the days when legal secretaries, like Melville's “Bartleby,
the Scrivener,” copied out legal documents by hand. A handwritten
copy would be deemed “other evidence” under the modern BER.)
Under FRE 1003, a duplicate can be used instead of the original,
unless there is an actual reason to question its accuracy or it would
somehow be unfair to use it in place of the original. A duplicate need
not take the same technological form as the original, so long as the
contents are accurately reproduced: For example, a digitally
enhanced recording, or a CD version of an audio recording originally
made on tape, qualifies as a duplicate. (A court might require some
foundation-type testimony to establish the accuracy of the copy.)
Inscriptions on Objects Are Not Writings. Inscriptions on objects
are usually not treated as “writings” under FRE 1002, and the best
evidence rule does not apply. Courts have discretion to treat such
objects as a writing depending on the need for the exact inscription,
the simplicity or complexity of the inscription, and the ease or
difficulty of production. Presumably, this principle would apply to
street signs giving the names of streets or traffic instructions. A
witness could testify to having seen a stop sign, or to knowing his
location by having seen a sign identifying the street name, without
producing the original signs in court.
b. Exceptions
 Other evidence of the content of a writing, recording, or photograph
is permitted in situations described in FRE 1004, 1006, and 1007.
FRE 1004: Originals Unavailable. The most prevalent exception
to the BER occurs when the original document is not available to the
offering party. FRE 1004(a) states that other evidence is admissible
to prove the content of original documents

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that have been “lost or destroyed, unless the proponent lost or

destroyed them in bad faith.” Loss or destruction of the original,
pursuant to FRE 1004(a), may be proved by testimony from a person
with knowledge, or by circumstantial evidence that the proponent
has made a reasonable, diligent, and unsuccessful search for the
original. The proponent need not explain with absolute certainty what
happened to the original, but has the burden to prove that its loss or
destruction was not in bad faith. See, e.g., Knit With v. Knitting
Fever, Inc., 742 F. Supp. 2d 568, 586 (E.D. Pa. 2010); Seiler v.
Lucasfilm, 613 F. Supp. 1253, 1260 (N.D. Cal. 1984) aff'd, 808 F.2d
1316 (9th Cir. 1986). Negligent destruction of documents has been
held insufficient to establish bad faith. Likewise, destruction of
documents as part of a routine purge, pursuant to a document
retention policy or practice, is generally not deemed bad faith. See
Cross v. United States, 149 F.3d 1190 (10th Cir. 1998) (negligent
destruction); United States v. Balzano, 687 F.2d 6 (1st Cir. 1982)
(routine purging).
Under FRE 1004(b), if the originals are not lost but are in the
possession of others, the court may require the proponent to show
that they cannot be obtained by the proponent's reasonable, diligent,
and unsuccessful use of judicial process or other inquiry (such as
pretrial discovery or investigation). If the original is in the possession
of the opposing party, then, pursuant to the requirements of FRE
1004(c), secondary evidence of its content may be offered if the
opponent was on notice that the original would be the subject of
proof but failed to produce it at trial.
 FRE 1004 permits the proponent to use any “other evidence” of the
content of the original. No preference is given to any particular type
of secondary evidence once the original is not available. A common
form of secondary evidence is the oral testimony of a witness who
once perceived the original and claims to remember it. All types of
copies are also equally acceptable, such as a transcripts of an
audiotape. Official records are an exception to this principle of equal
acceptability. FRE 1005 establishes a priority for proof of such official
records: A certified copy or a copy that a witness can testify is
correct is preferred over other types of secondary evidence. Only if
such copies cannot be obtained with “reasonable diligence” may
other evidence of contents be given.
FRE 1006: Voluminous Originals. FRE 1006 permits the
proponent of voluminous writings, recordings, and photographs to
present the contents of these items in the form of a summary, chart,
or calculation. The FRE 1006 summary is treated as evidence in
place of the voluminous underlying documents. The underlying
voluminous materials need not actually be admitted at trial. In this
sense, an FRE 1006 summary or chart is not the same as a visual
aid that is used simply to summarize or illustrate other evidence—
exhibits or testimony—that has already been, or will be, admitted at
trial. In contrast to FRE 1006 summaries, mere demonstrative aids
are not deemed evidence, and many courts don't allow them to be
taken into the jury room during deliberations.
Even though the voluminous materials don't have to be admitted in
evidence, FRE 1006 requires a showing that they would have been
admissible, including the laying of a proper foundation. The
proponent is also obligated to produce the originals in time to permit
the opponent to examine and copy them, obviously to check

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the summary for any errors or inconsistencies, and for purposes of

cross-examination. Courts are strict in enforcing this requirement.
United States v. Modena, 302 F.3d 626, 633 (6th Cir. 2002)
(willingness to provide underlying documents, if requested prior to
trial, is inadequate; opponent has absolute right to production of
underlying material, and party seeking to use summary must state
when and where material may be reviewed even absent a discovery
request).
FRE 1007: Opposing Party Description of Content. If the
opposing party in the litigation has described the content of a writing,
recording, or photograph, FRE 1007 permits the use of this
description against that party to prove that content, without
accounting for the absence of the original. Clearly, the opposing
party's verbal description is “other evidence” of content. But this
exception, in addition to its potential convenience, is justified by the
general principle that it is not unfair to use a party's own words
against him. The only restriction on this form of other evidence is that
it must have been committed to writing: It must be testimony at a
hearing or deposition, a written response to a discovery request, or a
written statement.

5. Best Evidence Rule: Practical Applications

Objecting to “Other Evidence” Under the BER. If a party offers
testimony verbally describing the content of a document, or some
other form of depiction or reproduction of an original document that
is not an accurate duplicate, the opposing party should object that
the offer is “not the best evidence.” The offering party's response
depends on whether, in fact, she is offering “other evidence.” If the
answer to this question is yes, then the offering party needs to
establish an exception to the BER under FRE 1004, 1006, or 1007.
But if the answer is no—if the offered evidence is not offered to
prove the content of a writing, recording, or photograph, the BER
doesn't apply to bar the evidence.
We have seen that testimony about an underlying event that
happens to have been captured on video or otherwise described in a
document can be proven with testimony and other evidence, so long
as the evidence recounts the underlying event itself rather than
recounting a document's description of the underlying event. In
addition, it may be the case that evidence relates to a document, but
is not offered to prove its content.
Facts About the Document Are Not “Other Evidence of
Content.” It is extremely important (though at times difficult) to
distinguish between a description of the content of the document and
facts about the document—its surrounding circumstances or
“envelope information.” For example, foundation testimony about an
exhibit—identifying its author, explaining the circumstances of its
creation, or describing it as a “fair and accurate” depiction of some
underlying event—is not what the BER means by “other evidence of
content.” Rather, that is simply lay-ing the foundation for admitting an
original (or duplicate) writing, recording, or photograph so that the
document can prove its own content, in conformity with the

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BER. In addition, testimony that a document exists, or testimony

describing the circumstances of its creation, is not what the BER
means by evidence of content. This is more in the nature of
“envelope information” about the document, rather than some sort of
recapitulation of its content. Finally, in many cases it may be relevant
to know what a particular person understood a document to mean, or
how he reacted or responded to it.
In the foregoing examples, a witness can testify “about” a
document without really attempting to prove what its contents are.
This testimony is permissible under the BER, whether or not the
document is introduced in evidence.
A commonly heard objection is that “the document speaks for
itself.” This is an imprecise, and potentially incorrect attempt to get at
a BER objection. It is true that a document “speaks for itself,” insofar
as an original or accurate duplicate must be used to prove the
document's content under the BER (in the absence of an exception,
anyway). But the document doesn't necessarily speak for itself in the
other important senses just described: A document may or may not
contain information about its own creation or information sources.
And a document generally does not contain information about how
its readers or viewers perceived or understood it. If those latter facts
are relevant, then testimony about the document is admissible, and a
BER or “the document speaks for itself” objection should be
overruled.

6. Explanation of FRE 1008

FRE 1008 makes a specific allocation of factfinding between judge
and jury in the application of the best evidence rule's various
provisions. The judge's general authority to make the preliminary fact
determinations necessary to apply exclusionary rules of evidence is
established in FRE 104(a). What rule FRE 1008 does is to
distinguish between FRE 104(a)- and 104(b)-type questions in the
application of the BER.
FRE 1008 explains that preliminary facts necessary to the
application of FRE 1001–1007 are 104(a) questions for the judge to
decide. But FRE 1008(a), (b), and (c) go on to identify three specific
factual questions that are for the trier of fact to determine “in
accordance with Rule 104(b).” This means that the judge should not
decide the question by a preponderance of the evidence, but should
determine only whether there is evidence sufficient to support a jury
finding on the matter. The Advisory Committee Note to Rule 1008
explains that these are questions that “go beyond the mere
administration of the rule preferring the original and into the merits of
the controversy.”
FRE 1008(a), (b), and (c) in essence involve disputed relevance
and foundation questions about a writing, recording, or photograph
offered into evidence. Recall that FRE 901 requires ESSF that the
item in question is what its proponent claims. And FRE 104(b)
requires ESSF of the probable truth of an underlying fact on which
relevance depends. FRE 1008(a), (b), and (c) are each examples of
a contention that the item in question is not what the proponent
claims. If an offered document is not a genuine original because no
original ever existed, or because there is a different original, then the
offered document is not relevant to prove the fact in question.
Likewise,

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if other evidence of the content of a document (e.g., testimony

purporting to describe or summarize it) is false or inaccurate, the
testimony will not be relevant to prove the contents. To maintain
consistency with FRE 901 and 104(b), these issues are treated as
foundation issues that must be decided by the trier of fact. The judge
screens for ESSF rather than reaching her own factual conclusion
under FRE 104(a).

KEY POINTS
1. The best evidence rule prohibits a party from proving the
content of a writing, recording, or photograph by verbal
descriptions or inexact reproductions. Instead, the original
document or an exact copy must be used. FRE 1001–1003.
2. “Other evidence” of the content of a document—typically,
verbal descriptions or inexact reproductions—may be used to
prove the content of the orig-inal, if the original was justifiably
unavailable. The proponent of the other evidence has the
burden to prove the facts justifying the unavailability of the
original, under FRE 104(a). The proponent of the other
evidence must show that any loss or destruction of the
original was not due to his own bad faith.
3. The BER applies to all instances where the original writing,
recording, or photograph would be real evidence, if offered.
But where the writing, recording, or photograph is relevant
only to prove the underlying events it depicts, then the BER
applies only to evidence attempting to summarize or inexactly
reproduce the writing, recording, or photograph. The BER
imposes no restriction on other evidence proving the
 underlying event without the writing, recording, or photograph,
such as direct eyewitness testimony.
4. FRE 1006 permits the use of summaries of voluminous
writings, recordings, and photographs without the admission
of the originals into evidence. The originals or duplicates
must, however, be available to the opponent. A summary
admitted under Rule 1006 is itself substantive evidence.
5. FRE 1008 provides that most preliminary questions of fact
under the best evidence rules are for the judge to decide
pursuant to FRE 104(a). The only FRE 104(b) questions for
the jury are disputes as to the true content or existence of the
original.

PROBLEMS
4.16. Return to Problem 4.4, United States v. Ray, at page 208.
Does FRE 1002 apply to the government's offer of Exhibits 1
and 2? Why? Do Exhibits 1 and 2 satisfy FRE 1002? Could
the government prove Ray's stock sale on March 16, 2015, by
calling Ray's stockbroker as a witness and asking her whether
she sold Ray's 100,000 shares of Rundown stock at his
direction on March 16th? Would this violate FRE 1002?

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4.17. Workman, a dentist, was indicted for his participation in a

scheme to conceal his income and assets from the Internal
Revenue Service. In 2011, before the indictment was issued,
Workman was interviewed by Donna Jackson, a lawyer
representing Workman's wife in their divorce proceedings. The
conversation, in which Workman made statements about
concealing assets, was tape recorded. Jackson also took
notes. Jackson's secretary, who was not present at the
interview, typed a transcription of the conversation based on
 the tape recording. Assume that the tape, the notes, the
transcript, Jackson, and her secretary are still available. What
are the several ways in which the prosecution could present
the content of the 2011 conversation at Workman's trial?
Would any of the best evidence rules apply?
The prosecution now learns that Jackson erased the tape in
the ordinary course of business, lost her notes, and does not
remember the contents of the conversation. Can the transcript
be admitted into evidence?
4.18. In a wrongful death case alleging that the defendant driver
was intoxicated when his car crossed a median strip in a
divided highway, causing a head-on collision with the plaintiff's
intestate, the plaintiff offers testimony from the state police
officer who was first on the scene of the accident. The officer
would tes-tify that when he approached the defendant's car
and saw several empty bottles of Budweiser beer on the front
seat. Must the plaintiff produce the original labels and bottles?
4.19. Return to Problem 4.6 at page 221. To prove that Jim Zeal
and Stephani Goldstein were conspiring to import marijuana
from outside of the United States, the prosecution offers the
testimony of Ensign Chandler who also boarded the Rastafari.
Chandler will testify that he discovered a global positioning
system (GPS) in the boat; that a GPS device uses global
positioning satellites to track and record the location of any
device and therefore the location of an object, such as the
boat, to which the device is attached; and that the backtrack
feature on the GPS graphed the Rastafari's journey from
Kingston, Jamaica, to the point at which it was seized by the
Coast Guard. Chandler will have to admit that he did not seize
the GPS or obtain any record of the data he observed as a
display on its screen. The defendants object on the grounds
that Chandler's testimony violates the best evidence rule.
What result?
4.20. Flanagan sues Zeppelin Electric Products, Inc., alleging that
an oral agreement was made whereby Flanagan would
remove gravel from Zeppelin's lot for consideration of $65 per
 hour. Flanagan and his crew toiled away until the gravel was
completely removed. Zeppelin refused to pay Flanagan's bill,
disputing the actual number of hours worked. At trial Flanagan
offers into evidence a summary of data that he says he
transcribed each week from tally sheets recorded at the
worksite, indicating the number of hours worked by each
employee. He claims that the tally sheets were discarded or
lost. Defense counsel objects on the ground that the summary
violates the best evidence rule and claims that the so-called
tally sheets probably never existed. What result under FRE
1004, 1006, and 1008? What fact questions would the judge
instruct the jury to decide?

254

7. The Best Evidence Rule: Policies and Problems

The following opinion of the Ninth Circuit Court of Appeals concerns
a party's attempt to offer secondary evidence of detailed drawings
when that party's good-faith loss of the originals had not been
proved. The opinion discusses the policies that justify requiring
production of originals in general, as well as when nonproduction is
not excused.

SEILER V. LUCASFILM, LTD.

808 F.2d 1316 (9th Cir. 1986)

F , Circuit Judge.
Lee Seiler, a graphic artist and creator of science fiction creatures,
alleged copyright infringement by George Lucas and others who
created and produced the science fiction movie The Empire Strikes
Back. Seiler claimed that creatures known as “Imperial Walkers”
which appeared in The Empire Strikes Back infringed Seiler's
copyright on his own creatures called “Garthian Striders.” The
Empire Strikes Back appeared in 1980; Seiler did not obtain his
copyright until 1981. . . .

FACTS

Seiler contends that he created and published in 1976 and 1977

[drawings of] science fiction creatures called Garthian Striders. In
1980, George Lucas released The Empire Strikes Back, a motion
picture that contains a battle sequence depicting giant machines
called Imperial Walkers. In 1981 Seiler obtained a copyright on his
Striders, depositing with the Copyright Office “reconstructions” of the
originals as they had appeared in 1976 and 1977.
Seiler contends that Lucas's Walkers were copied from Seiler's
Striders which were allegedly published in 1976 and 1977. Lucas
responds that Seiler did not obtain his copyright until one year after
the release of The Empire Strikes Back and that Seiler can produce
no documents that antedate The Empire Strikes Back.
Because Seiler proposed to exhibit his Striders in a blow-up
comparison to Lucas's Walkers at opening statement, the district
judge held an evidentiary hearing on the admissibility of the
“reconstructions” of Seiler's Striders. Applying the “best evidence
rule,” Fed. R. Evid. 1001–1008, the district court found at the end of
a seven-day hearing that Seiler lost or destroyed the originals in bad
faith under Rule 1004(1) and that consequently no secondary
evidence, such as the post–Empire Strikes Back reconstructions,
was admissible. In its opinion the court found specifically that Seiler
testified falsely, purposefully destroyed or withheld in bad faith the
originals, and fabricated and misrepresented the nature of his
reconstructions. The district court granted summary judgment to
Lucas after the evidentiary hearing.
On appeal, Seiler contends (1) that the best evidence rule does not
apply to his works, [and] (2) that if the best evidence rule does apply,
Rule 1008 requires a jury determination of the existence and
authenticity of his originals. . . .

255
 DISCUSSION
1. A B E R
. . . We hold that Seiler's drawings were “writings” within the
meaning of Rule 1001(1); they consist not of “letters, words, or
numbers” but of “their equivalent.” To hold otherwise would frustrate
the policies underlying the rule and introduce undesirable
inconsistencies into the application of the rule. . . .
In the days before liberal rules of discovery and modern techniques
of electronic copying, the rule guarded against incomplete or
fraudulent proof. By requiring the possessor of the original to
produce it, the rule prevented the introduction of altered copies and
the withholding of originals. The purpose of the rule was thus long
thought to be one of fraud prevention, but Wigmore pointed out that
the rule operated even in cases where fraud was not at issue, such
as where secondary evidence is not admitted even though its
proponent acts in utmost good faith. Wigmore also noted that if
prevention of fraud were the foundation of the rule, it should apply to
objects as well as writings, which it does not. . . .
The modern justification for the rule has expanded from prevention
of fraud to a recognition that writings occupy a central position in the
law. When the contents of a writing are at issue, oral testimony as to
the terms of the writing is subject to a greater risk of error than oral
testimony as to events or other situations. The human memory is not
often capable of reciting the precise terms of a writing, and when the
terms are in dispute only the writing itself, or a true copy, provides
reliable evidence. To summarize . . . the importance of the precise
terms of writings in the world of legal relations, the fallibility of the
human memory as reliable evidence of the terms, and the hazards of
inaccurate or incomplete duplication are the concerns addressed by
the best evidence rule. . . .
. . . The contents of Seiler's work are at issue. There can be no
proof of “substantial similarity” and thus of copyright infringement
unless Seiler's works are juxtaposed with Lucas's and their contents
compared. Since the contents are material and must be proved,
Seiler must either produce the original or show that it is unavailable
through no fault of his own. Rule 1004(1). This he could not do.
The facts of this case implicate the very concerns that justify the
best evidence rule. Seiler alleges infringement by The Empire
Strikes Back, but he can produce no documentary evidence of any
originals existing before the release of the movie. His secondary
evidence does not consist of true copies or exact duplicates but of
“reconstructions” made after The Empire Strikes Back. In short,
Seiler claims that the movie infringed his originals, yet he has no
proof of those originals.
The dangers of fraud in this situation are clear. The rule would
ensure that proof of the infringement claim consists of the works
alleged to be infringed. Otherwise, “reconstructions” which might
have no resemblance to the purported original would suffice as proof
for infringement of the original. Furthermore, application of the rule
here defers to the rule's special concern for the contents of writings.
Seiler's claim depends on the content of the originals, and the rule
would exclude reconstituted proof of the originals' content. Under the
circumstances here, no “reconstruction” can substitute for the
original.

256

Seiler argues that the best evidence rule does not apply to his
work, in that it is artwork rather than “writings, recordings, or
photographs.” He contends that the rule both historically and
currently embraces only words or numbers. Neither party has cited
us to cases which discuss the applicability of the rule to drawings.
To recognize Seiler's works as writings does not, as Seiler argues,
run counter to the rule's preoccupation with the centrality of the
written word in the world of legal relations. Just as a contract
objectively manifests the subjective intent of the makers, so Seiler's
drawings are objective manifestations of the creative mind. The
copyright laws give legal protection to the objective manifestations of
an artist's ideas, just as the law of contract protects through its
multifarious principles the meeting of minds evidenced in the
contract. Comparing Seiler's drawings with Lucas's drawings is no
different in principle than evaluating a contract and the intent behind
it. Seiler's “reconstructions” are “writings” that affect legal relations;
their copyrightability attests to that.
A creative literary work, which is artwork, and a photograph whose
contents are sought to be proved, as in copyright, defamation, or
invasion of privacy, are both covered by the best evidence rule. We
would be inconsistent to apply the rule to artwork which is literary or
photographic but not to artwork of other forms. Furthermore,
blueprints, engineering drawings, architectural designs may all lack
words or numbers yet still be capable of copyright and susceptible to
fraudulent alteration. In short, Seiler's argument would have us
restrict the definitions of Rule 1001(1) to “words” and “numbers” but
ignore “or their equivalent.” We will not do so in the circumstances of
this case.
Our holding is also supported by the policy served by the best
evidence rule in protecting against faulty memory. Seiler's
reconstructions were made four to seven years after the alleged
originals; his memory as to specifications and dimensions may have
dimmed significantly. Furthermore, reconstructions made after the
release of The Empire Strikes Back may be tainted, even if
unintentionally, by exposure to the movie. Our holding guards
against these problems.

NOTES AND QUESTIONS

1. The key to the Seiler court's decision to apply the BER to
Seiler's lost original drawings was that they were “equivalent” to
“letters, words or numbers.” Are you convinced? If this interpretation
is a stretch, is it justified by its arguable furtherance of the policy of
the BER? Suppose that Seiler's 1976 and 1977 original Garthian
Striders had been models, instead of drawings, and that he had
obtained a copyright based on a reconstruction of those models in
1981. Would the result be different? Do the policies of the best
evidence rule apply equally to models?
 2. The district judge had decided under FRE 1004(a) that Seiler
had destroyed all originals of his drawings in bad faith, obviously
taking Seiler's credibility into account—as he was allowed to do
under FRE 104(a). This ruling meant that Seiler's nonproduction of
his original drawings was not excused, and therefore no secondary
evidence of their contents (his reconstructions) could be admitted.
Seiler argued

257

on appeal that the judge was required to give to the jury the
question under FRE 1008(c) whether “other evidence of contents”
(his reconstructions) correctly reflected the contents of his original
drawings, and thus had to admit his reconstructions. The appellate
court held, however, that the Rule 1008(c) did not come into play
unless the district court had decided the Rule 1004(a) issue in
Seiler's favor. If the district judge had decided that Seiler's loss of his
original drawings was in good faith, the judge would not then be
permitted to refuse admission to Seiler's reproductions because the
court did not believe that the reconstructions genuinely reflected
Seiler's originals. It would be for the jury to resolve this issue under
FRE 1008(c). It seems logical to view the FRE 1004(a) question as
logically prior to the 1008(c) question.
How would the issues have been analyzed if Lucasfilms had
contended that the original, pre-Star Wars Garthian Striders had
never existed?

ASSESSMENTS
A-4.1. FRE 602. The plaintiff in an automobile accident case testifies that, almost
immediately after impact with the other car, he lost consciousness; that when he came to,
he had an intense pain in his right knee; and that he had suffered a fractured tibial plateau
(where the tibia bone ends at the knee). The defendant objects that the testimony is
inadmissible. The objection should be:
A. Overruled, because the plaintiff is describing physical occurrences to his own body, of
which he has personal knowledge through sensory perception.
B. Overruled as to the loss and regaining of consciousness and knee pain, but sustained
as to the facture.
 C. Sustained, because the loss of consciousness makes it implausible that he can
remember details immediately before and after.
D. Sustained, if the judge believes the witness's claim of memory is unlikely, given the
trauma and loss of consciousness.
A-4.2. FRE 901. Plaintiff Jason Jones is suing his former employer, Acme Corp., for
employment discrimination. Jones contends that Acme fired him because of his disability in
violation of the Americans with Disabilities Act. Acme contends that it fired Jones
legitimately, for falsely stating on his employment application that he had never been
convicted of a felony. Jones testifies first in the plaintiff's case in chief. On cross-
examination of Jones, defense counsel introduces “Defendant's Exhibit 1.” Jones admits on
cross-examination that he recognizes Exhibit 1 as an Acme employment application, and
that he filled out and signed it. Next to the question “Have you ever been convicted of a
felony?”, are two check boxes, one on top of the other, labeled “no” and “yes.” Jones
testifies that he checked the top box, “no,” thinking it was the “yes” box, because he
believed that “yes” boxes always come before “no” boxes on forms. He further testifies that
he would have readily admitted his prior felony conviction had anyone ever asked him.
Defense counsel moves Exhibit 1 into evidence. The exhibit should be:

258
A. Admitted, because defense counsel has offered ESSF that the exhibit is what the
proponent claims.
B. Admitted conditionally, pending ESSF from official records that Jones had a felony
conviction.
C. Admitted conditionally, pending affirmative testimony from a defense witness with
firsthand knowledge that Jones knowingly checked the “no” box.
D. Excluded, because at this stage in the trial, there is not ESSF that Jones intentionally
checked the “no” box.
A-4.3. FRE 104(b). Steven Cross is charged with possession with intent to sell cocaine, and
conspiracy to sell cocaine. Government informant Tony Genovese will testify that Cross
drove to a motel parking lot, where Genovese was waiting for him. Genovese said, “Let's
open the trunk.” When the automatic trunk latch didn't work, Cross got out and the two men
went to the back of the car. Cross opened the trunk with the car key, revealing ten 16-oz.
packages of Gold Label brand granulated sugar. Cross was arrested in the parking lot by
waiting FBI agents. It is undisputed that the packages contained cocaine. But Cross testifies
that he thought he was merely dropping off the car for his friend Barry Styles, whom he
claims told Cross he was loaning the car to Genovese. As evidence tending to show Cross's
guilty knowledge, Genovese testifies that Cross “did not look surprised” to see the packages
of sugar in the trunk. The defendant's best argument for excluding Genovese's “did not look
surprised” testimony is:
A. The packages are not self-authenticating under FRE 902, because they were
obviously tampered with, even though the “Gold Label” trade inscription appears
genuine.
B. The testimony is irrelevant absent ESSF that Cross put cocaine in the packages.
C. The testimony is irrelevant absent ESSF that Cross knew they contained cocaine.
D. Genovese's testimony is self-serving and therefore not credible.
A-4.4. Best Evidence Rule. In an employment discrimination case, the defendant Store
Mart asserts that it fired the plaintiff Victor Diaz a year into the Diaz's employment because
of an alleged discovery that Diaz had lied on his job application form by falsely stating that
he had an Associate of Arts degree from community college. It is undisputed that he had no
such degree, but Diaz asserts that he never claimed he did on his employment application.
Donald Clay, the Store Mart manager who hired Diaz, will testify as follows (in the absence
of an objection): “I have made a diligent search through the files and have been unable to
find Diaz's application form. However, I distinctly remember reviewing Diaz's employment
application at the time we hired him. He wrote in the 'education' section of the application
form that he had an Associate of Arts Degree from Northern Virginia Community College.”
Does the plaintiff have a basis to object to this testimony under the best evidence rule?
A. Yes, because the testimony seeks to prove the content of a writing.
B. Yes, because Clay's purported memory is self-serving and the original document
would be more probative evidence of whether Diaz lied on his application, since it
does not raise the same credibility issues.

259
C. No, because the purported lie is an underlying event that can be proven through any
firsthand witness even though it also happened to take written form.
D. No, because the original document is the blank application form, and Diaz's answers
on the form do not qualify as a writing, recording or photograph.

ANSWERS

A-4.1. FRE 602. The best answer is B. The witness has direct firsthand perception of his
own loss and regaining of consciousness, and feeling of pain. The particular cause of the
pain—a knee fracture—is not observable through the senses, however, and instead
requires some sort of expert medical diagnosis or opinion. Therefore, A is wrong: in contrast
to observable symptoms, internal physical processes are not within a person's firsthand
knowledge, even those within one's own body. D is plainly wrong, because ESSF of
personal knowledge asks whether a reasonable jury could believe the witness, not whether
the judge does. For related reasons, C is not a good answer: although a judge can screen
out “implausible” testimony (i.e., that a jury couldn't reasonably believe), the idea that a
person remembers events shortly before losing and after regaining consciousness does not
rise to the level of implausibility of, say, a claim of super-human perception.
A-4.2. FRE 901. The best answer is A. The claim about the exhibit is that Jones knowingly
put a false answer on the form. The answer is concededly false, and the question on the
form is sufficiently straightforward that a reasonable jury could infer that Jones understood
what he was doing; mental states like knowledge and intent must usually be inferred from
such circumstantial evidence. Therefore, C and D are wrong. There is no requirement that
the final inference in a relevance chain (Jones's knowledge or intent) be proven by direct
firsthand knowledge; only that the evidence starting the chain be within the witness's
firsthand knowledge. Nor is there a requirement that an exhibit be offered with evidence
supplied by witnesses called by the party; foundations can be laid on cross-examination.
Moreover, while Jones has raised a factual dispute about his intent, that is a jury question;
the judge can't resolve factual disputes in ruling on foundation matters. B is not the best
answer, because Jones has firsthand knowledge of his own felony conviction; therefore,
“official” corroboration is not required.
A-4.3. FRE 104(b). The best answer is C. The testimony implies that Cross knew there was
cocaine in the trunk because he was “unsurprised” when he saw it. Therefore, there should
be ESSF that Cross knew what he was looking at when he was unsurprised. Arguably,
there already is ESSF, insofar as a jury could infer guilty knowledge from Cross's
unsurprised expression. But that doesn't make any of the other answers better than C. A is
nonsensical, since the government is not offering the packages to show that they contained
sugar. B is not the best answer, since the government does not necessarily contend (or
need to contend) that Cross packed the cocaine himself—only that he knowingly delivered
it. D is wrong because the objection is based

260
on a missing fact under FRE 104(b): the judge does not determine witness credibility in
ruling on admissibility.
A-4.4. Best Evidence Rule. The best answer is A, for the reason stated. B is wrong; even
though it may reflect part of the BER's underlying policy, the rule itself does not depend on
which evidence is more probative, but on whether the offering party seeks to prove the
content of a writing. C is wrong because the lie is a writing with no independent evidentiary
existence apart from the written job application. Nothing in the fact pattern suggests that he
also lied orally, and in any event the accusation is that he lied on his application form. D is
wrong because the relevant writing necessarily includes Diaz's allegedly false answer;
nothing in the BER's definitions excludes writing added to a document after the document
was first created.

1. There are other situations, outside the FRE 104(b) foundation context, in which
evidence might be admitted “conditioned upon” the proponent offering additional proof. For
example, when judges balance probative value versus a danger under FRE 403, the full
probative value of the evidence, its full measure of danger, or the proponent's need for it,
may not be apparent until additional evidence is taken in the case.
2. The foundation for expert testimony is treated as an FRE 104(a) question, and is thus
an exception to this point. See Chapter Nine.
261

CHAPTER FIVE
THE CHARACTER,
PROPENSITY, AND SPECIFIC
ACTS RULES
The law of evidence would be very simple if it were the case that “all
relevant evidence is admissible,” but FRE 402 goes on to say “except
as otherwise provided . . . by these rules.” The exceptions and
qualifications to the general rule admitting relevant evidence are the
focus of many of the Federal Rules of Evidence. FRE 403, as you
have seen, allows the trial judge to exclude relevant evidence on a
discretionary, case-by-case basis. In contrast, FRE 404-415 establish
certain categorical exclusions of otherwise relevant evidence. In this
chapter, we will focus on the most important of these rules: the
exclusion of otherwise relevant character evidence and evidence of
specific acts. FRE 404-406 and 412-415.
As we begin our examination of these rules, you should keep in
mind that the exclusionary provisions may not be a complete bar to
the admissibility of a particular piece of evidence. Rather, they
prohibit the proponent from offering the evidence only in a particular
context or for a particular purpose. For example, FRE 404(b) limits
the use of specific acts to prove character but authorizes their use for
other purposes, such as to prove motive or intent. Thus, in order to
apply the rules properly, you must ask the question that should
always be your first question: What is the proponent of the evidence
trying to prove? In other words, what is the proponent's theory of
relevance? Only after you answer this question will you be able to
apply the rules.
A. THE RELEVANCE OF CHARACTER EVIDENCE TO PROVE
CONDUCT ON A PARTICULAR OCCASION

Imagine a simple tort case in which a pedestrian is hit by a car and

injured. The plaintiff pedestrian claims that he was walking in a clearly
marked crosswalk when the defendant driver negligently drove his
SUV into him. The defendant claims that the plaintiff was
contributorily negligent because he darted out into the middle of the

262

street and was not in the crosswalk. What sort of evidence would the
attorneys want to put before the jury to corroborate the testimony of
their clients?
Suppose counsel for the plaintiff has the following evidence.
(1) Witness 1, who has seen the defendant drive on many
occasions, to testify that the defendant is a careless driver who
often fails to stop for pedestrians in crosswalks;
(2) Witness 2, a public records custodian, together with Exhibits A
through E, public records establishing that the defendant has
had several car accidents and traffic infractions in the past;
(3) Witness 3, a shopkeeper whose storefront overlooks the
crosswalk, to testify that he sees the plaintiff cross the street
nearly every day, and that he invariably uses the crosswalk.
And the defendant offers:

(4) Witness 4, a friend of the defendant, to testify that the defendant

has remade himself into a very safe driver in the past two years.
All of this evidence meets the basic test of relevance under FRE 401,
tending to make a fact of consequence (was the driver negligent?
was the pedestrian contributorily negligent?) more likely or less likely.
While this evidence may not be compelling by itself, you can see that
a rational jury could find it useful to consider. As a matter of common
sense, it is easy to see how each item of evidence is logically
connected to the issues that the parties have to prove in the case.
Yet, for reasons that will be explained in this chapter, only the
testimony of Witness 3 is likely to be admitted; the rest should be
excluded as improper character evidence under FRE 404.
A few definitions will be helpful in analyzing the material presented
in this chapter.
1. Propensity means a tendency of a person or thing to behave in a
certain way. A common thread in this chapter is the “propensity
inference”—an argument that evidence about propensity is relevant
to show how a person or thing behaved or operated on a specific
occasion that is the subject of the litigation. All four of the examples of
evidence in the Pedestrian v. Driver hypothetical are of this nature.
2. Character (FRE 404) is a type of propensity, probably the most
common and familiar. The Federal Rules, however, do not define the
terms character or character trait. This absence of a definition can
occasionally raise difficulties. For a working definition, “character” in
evidence law refers to the general traits, qualities, or characteristics
that make up an individual's personality or behavioral tendencies.
Evidence that the defendant is a “negligent” or “careless” driver is
character evidence. Evidence of a person's character is relevant—
but, as we shall see, generally inadmissible—to show that he
committed a particular act consistent with his character on a specific
occasion that is the subject of the litigation. Importantly, the character
inferences that the rules generally prohibit are propensity inferences,
but not all propensity inference are character inferences. Evidence
can be relevant because of a propensity inference even though it
does not depend on an individual's character or character trait.
3. Specific Acts, also known as “crimes, wrongs, or other acts” (FRE
404(b)) are instances of a person's conduct that are not the subject of
the case being litigated.

263

That is, they are not the conduct giving rise to alleged civil or
criminal liability in the litigation before the court—they are most often
specific acts that took place in the past (before the litigated events
occurred) but they may also have taken place after the litigated
events occurred. Although they are not part of the litigated events,
such specific acts may nevertheless be relevant to the current case.
In the Pedestrian v. Driver hypothetical, the driver's past accidents
and traffic infractions are examples of past specific acts. The driver's
previous accidents and infractions (other than hitting Plaintiff
Pedestrian) are relevant to the case because they give rise to an
inference that Driver may have driven negligently on the occasion in
question when he collided with Plaintiff Pedestrian. Similarly, the
many specific times Pedestrian walked in the crosswalk prior to the
accident are not themselves the subject of the litigation. What matters
is whether Pedestrian walked inside the crosswalk when he was hit
by Driver. But the prior instances may give rise to an inference that he
stayed inside the crosswalk on the occasion in question.
4. Habit (FRE 406) refers to a type of propensity evidence that the
law of evidence distinguishes from character. While character
evidence is generally excluded, evidence of habit is admissible.
Generally speaking, propensities toward conduct that is more
consistent, routine, and repetitive tend to be categorized as “habit,”
while conduct that is less so tends to be called “character.” “Habits”
also tend to be somewhat more morally neutral while behavior that is
more morally loaded tends to be categorized as “character.” The
testimony of Witness 3 in the above hypothetical, that Pedestrian
invariably walks within the lines of the crosswalk, would probably be
admitted as habit evidence.
In preparing a case for trial, it is natural for litigants to search out
evidence of character and evidence of relevant specific acts beyond
the litigated events. In terms of sheer volume, most evidence
introduced in trials (civil or criminal) is circumstantial evidence, and
evidence of character and past specific acts is a very commonplace,
easily found, and intuitive form of circumstantial evidence. The
personalities of all of us are often conceived of as a set of “character
traits,” and our lives are a constant stream of actions. Who we are
and what we do are closely intertwined. In a typical litigated case,
where it is disputed whether a (civil or criminal) defendant acted in a
certain way, what could be more natural than to look at the kind of
person the defendant is, and what he has done before, in order to
determine whether he committed the acts alleged in the litigation? If a
person is charged with fraud, it would be useful to know whether he is
“honest.” If he is alleged to have committed an assault, it seems
relevant to know whether he is “violent.” The “character” inference is
a commonsense form of reasoning which holds that a person with a
dishonest character is more likely than an honest person to have
committed the fraud in question; or that a violent person is more likely
than a nonviolent one to initiate a physical assault. (See Diagram 5-1,
infra.) Thus, use of character evidence is tempting for litigants.
It is crucial to see how specific acts fit into the character inference.
How do we know what someone's character is? How do we know
whether a person is “careless” or “dishonest” or “violent”? And how
would we prove that in court, in the absence of a rule restricting such
proof? Perhaps the most intuitive answer is to look at the person's
conduct. Character traits are ultimately generalizations based on
specific instances of

264

conduct. Thus, specific acts are the intuitively obvious source of

character evidence and in practice are often relevant to prove
character, which in turn is relevant as circumstantial evidence of how
a person may have acted on a particular (disputed) occasion. This
chain of reasoning is illustrated in Diagram 5-2, infra. As
commonsense and intuitive as this chain of reasoning may be, it is
precisely what the Federal Rules prohibit. As we will see, while
evidence of character may sometimes be used to prove or disprove
conduct on a specific occasion, FRE 404(b) does not allow specific
acts to prove character in order to prove, in turn, conduct on a
particular occasion.

B. GENERAL PROHIBITION ON USE OF CHARACTER AND

“CRIME, WRONG, OR OTHER ACT” EVIDENCE

1. FRE 404
RULE 404. CHARACTER EVIDENCE; CRIMES OR OTHER ACTS
 (a) Character Evidence.
(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.
(2) Exceptions for a Defendant or Victim in a Criminal Case. The following
exceptions apply in a criminal case:
(A) a defendant may offer evidence of the defendant's pertinent trait, and if the
evidence is admitted, the prosecutor may offer evidence to rebut it;
(B) subject to the limitations in Rule 412, a defendant may offer evidence of an
alleged victim's pertinent trait, and if the evidence is admitted, the prosecutor may:
(i) offer evidence to rebut it; and
(ii) offer evidence of the defendant's same trait; and
(C) in a homicide case, the prosecutor may offer evidence of the alleged victim's
trait of peacefulness to rebut evidence that the victim was the first aggressor.
(3) Exceptions for a Witness. Evidence of a witness's character may be admitted
under Rules 607, 608, and 609.
(b) Crimes, Wrongs, or Other Acts.
(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to
prove a person's character in order to show that on a particular occasion the person
acted in accordance with the character.
(2) Permitted Uses; Notice in a Criminal Case. This evidence may be admissible for
another purpose, such as proving motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of accident. On request by a
defendant in a criminal case, the prosecutor must:

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(A) provide reasonable notice of the general nature of any such evidence that the
prosecutor intends to offer at trial; and
(B) do so before trial—or during trial if the court, for good cause, excuses lack of
pretrial notice.

2. Explanation of FRE 404(a) and (b)

Our initial focus is on two parts of FRE 404:
(a) Character Evidence.
(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 . . . .
(b) Crimes, Wrongs, or Other Acts.
(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to
prove a person's character in order to show that on a particular occasion the person
acted in accordance with the character.
The text of FRE 404(a) begins by prohibiting the use of evidence of a
person's character to prove action in accordance with that character
trait on a particular occasion. This general prohibition provides the
backdrop against which the more specific and detailed rules admitting
and excluding various forms of character evidence must be
understood. The basic prohibitions of FRE 404(a) and 404(b) (putting
aside, for the moment, the qualifications and exceptions stated in the
rule) are broad and straightforward. Under FRE 404(a), evidence of
character is not permitted to show action on a particular occasion.
This bars the basic inference shown in Diagram 5-1:

FRE 404(b) elaborates on this principle by making clear that crimes,

wrongs, and other specific acts cannot be admitted to prove that a
person had a certain character trait and in order “to show” the person
acted in accordance with the character trait on a particular occasion.
(Note: to “show” in FRE 404(b) simply means to “prove.”) This
inference, too, relies on the prohibited character inference. As a
matter of logic, evidence of past conduct similar to the acts that
allegedly give rise to liability—for instance, evidence of past driving
infractions and accidents to show that it is more likely that the driver
was negligent in the incident in question—is usually relevant precisely
because we make the character inference. Driver's past driving
conduct shows him to be a certain type of driver, the kind who is more
likely to do that type of

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thing—negligent driving—on further occasions. FRE 404(b) thus

prohibits the chain of inferences shown in Diagram 5-2:
FRE 404(b)'s prohibition of a particular mode of proving character to
prove action in accordance with that character trait may seem
unnecessary given the general prohibition in FRE 404(a). But there
are two good reasons for spelling it out. First, there are limited
exceptions set out in FRE 404(a)(2) in which character evidence may
be offered to prove conduct on a specific occasion. FRE 404(b)
makes clear that even when these exceptions apply, the means of
proving character cannot include specific acts.
Second, as suggested above, past specific acts are a common and
intuitively obvious form of evidence that litigants are naturally inclined
to look for. Absent the express prohibition in FRE 404(b), it might not
be sufficiently clear to courts and litigants that specific acts evidence
is in many instances relevant only because it proves character in
order to prove actions in accordance with character, i.e., that the
relevance of this evidence depends on the prohibited character
inference. FRE 404(b) stands as a reminder that specific acts
evidence is objectionable on this ground.
a. The Rationale for Restricting Evidence of a Person's Character
There are good reasons for restricting the use of character evidence
to prove a person acted in accordance on a particular occasion:
Weakness of the Propensity Inference. First, the probative value
of character evidence to show action in accordance with character
will seldom, if ever, be very great. A person who is generally honest
will at least occasionally be less than fully honest; a person whom we
may fairly describe as having a violent character will on many
occasions react to adverse situations in a peaceful manner.
Moreover, on the occasion giving rise to the litigation, there may have
been particular stresses on the individual or some other unusual
circumstances that increased the likelihood of acting “out of
character.”
In the Johnson case, for example, evidence of Walker's reputation
for violence is relevant to show that he was violent at the time of the
alleged jail cell altercation. Yet the evidence does not suggest that
Walker was violent in a majority of his encounters with inmates. If that
were the case, it is unlikely that he would have retained his job.

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Rather, the defendant's evidence suggests only that Walker

happened to be violent somewhat more often than the other
correctional officers. Alternatively, consider the prosecution's
evidence about Walker's good character. Walker may have been a
generally peaceful person, but the stress of the incident with Johnson
could have caused Walker to act “out of character.” Even if one fully
credits the defense evidence and discounts the prosecution evidence
(or vice versa), the evidence tells the fact finder very little about the
likelihood that Walker behaved violently at the one specific time that
is the focus of the litigation. In short, the inference in Diagram 5-1
from a general character trait like violence, peacefulness, honesty, or
dishonesty to action in accordance with that character trait on a
particular occasion is likely to be quite weak.
Low Probative Value of the Evidence to Prove Character.
Furthermore, the inference from the evidence offered (e.g., the
testimony about Walker's reputation for violence) to what a person's
character actually is may itself be weak. As will be seen below, when
character evidence is permitted, it must take the form of the witness's
opinion about a person's character or that person's “reputation” in the
community. Such evidence often comes across as too vague and
general to be convincing. How convinced were you by the inmates'
testimony about Walker's reputation for violence in the Johnson
case?
 Evidence of past specific acts—for instance, specific instances in
which Walker beat an inmate, if such evidence existed—may be
much more powerful than general opinions, but even that evidence
may not be very probative of a person's character. While a person's
character is undoubtedly reflected in his conduct, how much conduct
do we need to observe before we can make reliable “character”
judgments? Would two instances of Walker assaulting inmates suffice
to prove that he had a “character” to be violent toward inmates? What
if those incidents were “out of character” for him?
Diversion from Main Issues. If the character evidence is disputed,
there is a risk of digressing into a “minitrial” on character and diverting
the factfinder's attention from the main issues in the case. In
Johnson, for example, there was conflicting testimony about Walker's
reputation for violence or nonviolence. Moreover, the risk of confusion
of issues would be heightened if character were to be proven by past
specific acts. If, for instance, the defense in Johnson wanted to
introduce evidence that Walker had previously assaulted two inmates,
we can easily see the potential for minitrials on those incidents. Were
those prior assaults similar in relevant respects to Johnson's
situation? Did Walker provoke the assault or simply defend himself?
How many facts are disputed about the prior assaults, and how many
witnesses are there to those events?
“Bad Person” Prejudice. Character evidence may also be unfairly
prejudicial, particularly if it is evidence of the character of a party to
the lawsuit. Inherent in the concept of character—or at least in the
attributes that most people and most courts think of as character—is
a moral quality or sense of rightness or wrongness. Consider,

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for example, the meaning of the words we use to describe what we

refer to as character traits, e.g., honesty, dishonesty, peacefulness,
and violence. Evidence that a litigant possesses one of these traits
may arouse an emotional response and dispose the jury to decide in
favor of that person if it is a positive character trait or against the
person if it is a negative one.
This danger is intensified when a negative character inference
might be drawn from past specific acts. Consider, for example, a
murder case in which the prosecutor offers evidence that the
defendant has committed an unrelated murder on a prior occasion.
One way that this evidence is relevant is to show that the defendant
has a generally violent character—and more specifically, a character
trait to commit murder—and thus may have committed the murder on
the occasion in question. At the same time, the prejudicial impact of
the evidence may be substantial. The jury is likely to have little
sympathy for a one-time murderer even if it has a reasonable doubt
about the defendant's guilt on the current charge. The jurors may also
make unfounded assumptions about the likelihood that someone who
has committed murder in the past will do so again. The risk is
probably especially great that a jury, on hearing about a criminal
defendant's bad character, may be willing to ignore a reasonable
doubt and convict a person who may not (in the jurors' view) have
been sufficiently punished in the past and who may commit crimes in
the future. But as Justice Cardozo famously said, “the law has set its
face against the endeavor to fasten guilt upon [a criminal defendant]
by proof of character or experience predisposing to an act of crime.”
People v. Zackowitz, 254 N.Y. 192, 172 N.E. 466 (1930).
As you can see from the foregoing points, character evidence raises
classic FRE 403 issues, in which probative value must be weighed
against FRE 403 dangers of consumption of time, confusion of
issues, and unfair prejudice. FRE 404 can be understood as
reflecting a judgment that the FRE 403 dangers inherent in character
evidence will so often substantially outweigh the probative value that
it makes sense to exclude it as a general rule rather than to permit
case-by-case decisions on whether to admit it. And while character
evidence admissible under the FRE 404(a) exceptions can be proven
by opinion or reputation testimony, it cannot be proven by specific
acts. Although specific acts may be slightly more probative of
character than vague, general reputation or opinion evidence, the
FRE 403-type dangers of minitrials and unfair prejudice are probably
much greater.
b. Exceptions to the FRE 404(b) Prohibition Against the Use of Specific Acts
Despite the unqualified nature of the prohibition against specific
acts evidence in FRE 404(b), there are limited instances in which it is
permissible to use evidence of a person's specific acts to prove that
person's character to prove action in accordance with character. FRE
608(b) and 609, which we will consider in Chapter Seven, explicitly
authorize the use of specific acts for this purpose. The revised
Federal Rules dealing with the admissibility of sexual misconduct
evidence, FRE 413-415, also contemplate the use of specific acts to
prove character to show action in accordance with character.

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KEY POINTS

1. Evidence of a person's character is relevant to prove the

person's action in accordance with character on a particular
occasion.
2. The Federal Rules, however, prohibit the use of character
evidence to prove action in accordance with character except
in the situations set forth in FRE 404(a) (discussed in Section
G, infra).
3. The Federal Rules do not define “character” or “character trait.”
Typically, “character” refers to the general traits, qualities, or
characteristics of a person that makeup that person's
personality or behavioral tendencies. Character traits tend to
be reflected in occasional, rather than routine, conduct and
tend to have moral overtones (e.g., honesty or dishonesty)
and, therefore, inherent prejudice.
4. Crimes, wrongs, or other acts that are not part of the events
being litigated are often relevant to prove character in order to
prove action in accordance with that character trait on a
 particular occasion. However, they are excluded from evidence
for this purpose by FRE 404(b).

PROBLEMS
5.1. Return to Problem 3.3, United States v. Ray, at page 149. The
prosecution offers evidence that (a) in October 2013, Ray sold
25,000 shares of Rundown stock one week before a major and
abrupt fall in Rundown's share price; and (b) in May 2014, Ray
purchased 30,000 shares of Rundown 30 days before the
company announced the profitable acquisition of a competitor,
an event that caused the stock price to rise by 25 percent. For
what purposes is this evidence relevant? Is it objectionable?
5.2. Return to Problem 3.4, State v. Blair, at page 150. The
prosecution offers the following evidence. For what purposes is
this evidence relevant? Is it objectionable?
(a) That in 2008, Blair pleaded guilty to a charge of simple
assault after making an unprovoked attack with his fists
on a man in a bar.
(b) Testimony from Blair's then-girlfriend that on two
occasions in 2005 she called 911 because Blair had
beaten her. She received medical treatment on both
occasions, though she did not press charges against
Blair.
(c) That Blair was arrested for battering Norma in September
2008. Norma received medical treatment for her injuries,
but no charges were filed against Blair.
5.3. Return to the case of United States v. Hitt, at page 171. Recall
that the prosecution offered a photograph of the defendant's
rifle surrounded by several guns that were not his. Suppose
that the guns did in fact belong to Hitt. With that assumption,
what arguments could be made for the relevance of the
photograph? Can any objection be made under FRE 404(b)?
 Can you think of any additional arguments in support of an
FRE 403 objection?

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5.4. Return to Problem 3.2, Pedroso v. Driver, at page 148. The

defendant offers the following evidence. For what purposes is
this evidence relevant? Is it objectionable?
(a) Testimony of the transportation supervisor for the entire
school district that defendant Driver “is the best and most
safety conscious driver in the district.”
(b) Testimony from the same witness that Driver “had a
spotless driving record prior to this incident.”
The plaintiff offers the following evidence. For what purpose
is this evidence relevant? Is it objectionable?
(c) Testimony from Driver's neighbor that Driver had been
depressed for weeks prior to the incident and that “half a
dozen” empty liquor bottles could be seen in Driver's
trash each week.
(d) Driver's admission that she had been speeding while
driving her bus route prior to the incident.
5.5. Joseph Zachary has been convicted of first degree murder for
the premeditated killing of Marty Coppola. According to the
evidence presented to the jury, Zachary got into a heated
argument with Coppola at a bar. He went back to his apartment
where he retrieved a 9 mm pistol, returned to the bar and shot
Coppola. To prove premeditation, the prosecution argued that
Zachary returned to the bar intending to kill Coppola. The
defense argued for first degree manslaughter based on (1)
Zachary's testimony that he did not intend to use the gun on
Coppola and (2) corroborated testimony that Zachary pulled
the gun only after Coppola tried to punch him in the face. The
prosecution, over defense counsel's objection, introduced
evidence that Zachary also owned a .38 caliber magnum
revolver and a .45 caliber pistol in addition to the murder
weapon. No evidence was offered about how or why Zachary
 chose the 9 mm pistol. In admitting the evidence of the other
guns, the trial judge agreed with the prosecutor's argument that
the evidence “shows the defendant had a murderous
propensity.”
Assuming that all arguments have been properly preserved
for appeal, what arguments should the defense make to the
appellate court that the evidence concerning the other guns
should have been excluded from the trial? How should the
prosecutor respond?

C. THE ADMISSIBILITY OF SPECIFIC ACTS THAT ARE DEEMED

RELEVANT WITHOUT A CHARACTER INFERENCE

Rule 404(a)(1) prohibits a certain kind of propensity inference—

specifically, a “character” inference, one that asks the jury to infer that
a person acted a certain way on the occasion in question because it
was his “character” to act that way. FRE 404(b)(1) emphasizes this
prohibition with respect to evidence of specific acts. But nothing in
these rules prohibits the use of specific acts that are relevant for
some purpose other than to prove character to prove, in turn, conduct
on a particular occasion. In other

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words, specific acts that are relevant without making the full character
inference illustrated in Diagram 5-2, supra, are not excluded by FRE
404(b)(1).
Because past specific acts are an important and common type of
evidence, the drafters of the rules did not leave this point about their
admissibility for noncharacter purposes to implication, but chose
instead to spell it out in FRE 404(b)(2).

1. Explanation of FRE 404(b)(2)

FRE 404(b)(2) provides:
(2) Permitted Uses; Notice in a Criminal Case. This evidence [of a crime, wrong or
other act] may be admissible for another purpose, such as proving motive, opportunity,
 intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. On
request by a defendant in a criminal case, the prosecutor must:
(A) provide reasonable notice of the general nature of any such evidence that the
prosecutor intends to offer at trial; and
(B) do so before trial—or during trial if the court, for good cause, excuses lack of
pretrial notice.

Specific acts may be admissible pursuant to FRE 404(b)(2) to prove a

fact of consequence without proving “character” or a “character trait.”
In order to admit evidence pursuant to FRE 404(b)(2), the proponent
must satisfy three requirements. First, the proponent must articulate
some noncharacter purpose for which the specific acts evidence is
relevant. Second, the proponent must introduce evidence that the
person who allegedly committed the act in fact did commit the act.
Third, the proponent must be prepared to respond to a likely FRE 403
objection to the evidence.
Assume, for example, a case in which the defendant is charged with
shooting a police officer, and the prosecution wants to introduce
evidence that the defendant robbed a bank shortly before the
shooting. The prosecution would first have to articulate a
noncharacter purpose for introducing evidence of the defendant's
involvement in the bank robbery. In this case, the prosecution would
maintain that the bank robbery evidence is offered, not to show that
the defendant more likely shot the police officer in accordance with a
general character for dishonesty or lawlessness, but rather to
establish a motive for the shooting: Because the defendant had
recently robbed a bank, the defendant had a particular fear of capture
and, therefore, a motive for shooting the police officer. Second, the
prosecution would have to have evidence—perhaps, for example, a
videotape of the robbery or eyewitness testimony—sufficient to
support a finding that the defendant was indeed the bank robber.
(Note: This is a finding under 104(b). See Chapter Four, Section E.)
Finally, the prosecution would have to be prepared to respond to an
objection that the probative value of the bank robbery evidence (to
prove that the defendant had a motive for the shooting and, therefore,
that the defendant did shoot the officer) is substantially outweighed
by the FRE 403 dangers.
 If the proponent of the evidence is the prosecutor, there is a fourth
requirement—that the prosecution respond to a criminal defendant's
demand for notice. According

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to the Advisory Committee Note on this notice requirement, its

purpose is “to reduce surprise and promote early resolution on the
issue of admissibility.” The rule states no absolute time limits and no
particular form that the request and response must take.
a. Types of 404(b)(2) Evidence
The eight examples listed in FRE 404(b)(2)—motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence of mistake
or accident—can be grouped into three broad and overlapping
categories. However, the phrase “such as” in FRE 404(b)(2)
expressly makes clear that the list is not exhaustive. To secure
admission pursuant to FRE 404(b)(2), it is not necessary to identify
one of the listed purposes. It is sufficient for the proponent of specific
acts evidence to convince the court that the evidence is outside the
scope of FRE 404(b)(1)—i.e., it is offered for some purpose other
than proving a person's character to prove conduct in accordance
with character on a particular occasion.
Evidence of Motive, Opportunity, Preparation, or Plan.
Sometimes the events giving rise to civil or criminal liability are an
inextricable part of a larger story involving other actions by a party.
These other actions are in turn relevant to an essential element,
tending to prove who did the act or what the act was. The prosecution
in a homicide case might want to present evidence that the defendant
stole a gun in a burglary a week before the homicide to explain how
he came into possession of the gun used in the crime—an example
of opportunity or preparation. In the same homicide case, the
prosecution might offer evidence that the defendant was involved with
the victim in a drug deal that went bad, in order to establish the
defendant's motive to kill the victim. Or, under a different set of facts,
a homicide might be part of a broader plan or scheme to further a
drug-dealing conspiracy—if the victim were a potential witness
against the conspirators, or a competing drug dealer—in which case
the prosecution might offer specific acts evidence in the form of
evidence of the (uncharged) drug dealing conspiracy.
“Motive,” “opportunity,” “preparation,” and “plan,” are all terms that
capture the idea of essential aspects of the story of the case, such
that the story can only be fully understood if the other actions are
presented to the jury. As we saw in the Old Chief case, litigants have
an acknowledged strong interest in presenting evidence that tells the
jury a story that is coherent and has “narrative integrity”—that doesn't
leave the jury wondering “how” and “why.” In addition, these kinds of
facts are relevant in other ways, typically as circumstantial evidence
tending to show identity—who committed the crime or conduct that is
the subject of the litigation—or the fact that the crime or conduct
occurred, where those facts are in dispute.
It could be said that the examples given above are not properly
considered past specific acts at all, in the sense we that have been
using the term. Why not? Because, at least in some cases, they
arguably are indeed part of a single, cohesive chain of events giving
rise to liability. Even if this is so, they nevertheless are frequently
lumped into the 404(b)(2) category to the extent that they theoretically
could have been the subject of additional civil claims or criminal
charges.

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Evidence Showing Relevant States of Mind. States of mind are

at issue in many litigated cases: Mental states may be an element of
the criminal charge or the civil claim, and the defendant can put his
state of mind at issue by asserting mistake, accident, or lack of
knowledge. In such cases, past specific acts can be admissible for
the noncharacter purpose of proving knowledge, intent or absence of
mistake or accident. The same evidence that showed “preparation” or
“motive” in the homicide example above, may also be relevant to
show an intent to kill or the kind of premeditation that must typically
be shown in a murder case. Past specific acts might also show the
requisite knowledge. For instance, in a prosecution for conspiracy to
distribute narcotics, the prosecution might offer a prior conviction for
dealing cocaine to show the defendant's knowledge that the
substance he transported was in fact cocaine.
This last example also illustrates what is meant by absence of
mistake or accident. Past specific acts may be relevant to rebut a
defendant's assertion that he is not liable or guilty because he was
mistaken about crucial facts or that the conduct was unintentional. In
the cocaine dealing example, if the defendant claims he did not know
the white powder was cocaine, his past conviction for dealing powder
cocaine would be relevant to undermine that claim. Past specific acts
are also occasionally offered to rebut a claim of accident. For
instance, in a case where an alleged arsonist charged with burning
down his business to collect insurance proceeds claims that the fire
was an accident, the prosecution might introduce evidence of prior
purported accidents in which the same defendant lost other
businesses in fires and collected insurance proceeds. The theory is
that such accidents are unlikely to recur with the same person so
frequently, implying that intentional conduct must be involved.
Evidence Showing Identity. In cases where the defense theory is
that the wrongful conduct was perpetrated by some other known or
unknown person, specific acts can be relevant as circumstantial
evidence that the defendant is indeed the perpetrator. To be sure,
“other conduct” offered for any of the other noncharacter purposes
above is ultimately relevant to “identify” the defendant as the culprit.
Identity is probably listed separately as a way of including the “modus
operandi” theory: Where other conduct is so distinctive and nearly
identical in its attributes or methods to the litigated conduct as to
suggest by itself that the same perpetrator did the past and present
acts, it can be admitted as showing identity.
b. Preliminary Factfinding with Respect to Whether the Person in Question
Committed the Act
The probative value of specific acts evidence for any of the
noncharacter purposes covered by FRE 404(b) depends in part on
the strength of the proof that the person committed the act and, if
culpability is important to the relevance of the evidence, that the
person did so culpably. What standard should the trial judge use in
determining whether to admit the specific acts evidence? In
Huddleston v. United States, 485 U.S. 681 (1988), the Supreme
Court resolved a conflict in the federal circuits by holding that the
question of the person's culpable involvement was one of conditional
relevance governed by FRE 104(b). Thus, under the Federal Rules,
the proponent of

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the evidence can satisfy the preliminary fact requirement by

introducing “evidence sufficient to support a finding” by a
preponderance of the evidence that the person was culpably involved
in the act. This standard of proof is relatively low, as we discussed at
pages 192-93, supra. Despite Huddleston, some state courts apply a
higher standard in assessing a person's involvement in prior acts.
c. Probative Value and Prejudice Generally
Finding a relevant “noncharacter” purpose for specific acts evidence
under FRE 404(b)(2) and satisfying the preliminary fact standard
does not mean that the evidence is automatically admissible. The
term “may” in FRE 404(b) makes it clear that admissibility is subject
to compliance with the other rules of evidence, the most important of
which in the context of specific acts evidence is FRE 403. FRE 404(b)
(2) evidence nearly always raises a potential FRE 403 objection. This
is because in virtually every (perhaps every) instance in which
evidence offered for one of the FRE 404(b)(2) purposes, there will still
be the risk that the jury will consider the conduct for the impermissible
purpose of proving character to prove conduct in accordance with
character on a specific occasion. Thus, for example, if the prosecutor
in a homicide case offers evidence of the defendant's burglary-theft of
a gun to show preparation and opportunity, the jury may nevertheless
use the evidence to determine that the defendant has a character to
commit crimes and is therefore more likely to have committed the
homicide—or is just a bad person who should be punished on that
basis. In other words, FRE 404(b)(2) evidence is likely to be relevant
for two purposes—one admissible, the other not. Thus, a classic FRE
403 objection is presented, based on the argument that the prejudice
flowing from the impermissible purpose substantially outweighs the
probative value of the permissible purpose.
Factors for the court to consider in making the FRE 403 balancing
decision include
(1) how probative the noncharacter purpose is of some contested
issue in the case;
(2) how probative the specific act is to prove the noncharacter
purpose (e.g., whether there is a sufficiently close temporal
proximity between the specific act and the crime charged;
whether there is a “substantial similarity” between the past act
and the crime charged, see United States v. Haywood, 280 F.3d
715 (6th Cir. 2002));
(3) how probative the evidence is to establish that the act occurred
(e.g., whether there is a dispute about the nature of the act or
the defendant's involvement in it);
(4) how much of a risk of unfair prejudice would result from
introduction of the evidence (e.g., how heinous is the specific
act); and
(5) how effective a limiting instruction is likely to be in reducing the
risk of unfair prejudice.
In sum, when the prosecution offers specific acts evidence against a
criminal defendant, there inevitably will be the risk of “bad person”
prejudice: Jurors may be willing

275

to ignore a reasonable doubt because they regard the defendant as a

bad person who perhaps has not been sufficiently punished for prior
misdeeds and who may commit similar bad acts in the future. In
addition, there is a risk that the jury may use the act in an improper
character-propensity sense as evidence that the defendant
committed the crime charged. Keep in mind, though, that FRE 403 is
a rule favoring admissibility (probative value must be “substantially
outweighed” by the countervailing factors) and that courts often admit
potentially prejudicial 404(b)(2) evidence.

KEY POINTS
1. FRE 404(b)(1) prohibits the use of specific acts only to prove
character to prove action in accordance with character.
2. Admissibility of specific acts for noncharacter purposes
requires the proponent to do three things: (a) convince the
judge that there is a legitimate noncharacter purpose for the
evidence; (b) satisfy the preliminary fact standard for the
specific act; and (c) respond to an FRE 403 objection.
3. The list of purposes in FRE 404(b)(2) for which specific acts
evidence may be admissible is not exhaustive. Specific acts
evidence may be admissible for any noncharacter purpose.
4. Under the Federal Rules, the question of whether a person
was culpably involved in the specific acts is an FRE 104(b)
preliminary fact question. The proponent can satisfy the
standard by offering evidence sufficient to support a finding by
a preponderance of the evidence that the person was culpably
involved in the act.
5. FRE 403 may sometimes require exclusion of specific acts
evidence offered for noncharacter purposes.

PROBLEMS
5.6. Consider whether the specific acts evidence should be
admissible in the following cases:
(a) Jill's home was burglarized, and there was no evidence of
a forced entry. In the case against the defendant, the
prosecution offers evidence that a week before the
 burglary, the defendant stole Jill's purse containing her
key ring.
(b) The defendant is charged with growing marijuana. She
claims that her friends are responsible and that she
thought the plants were weeds. The prosecution offers
eyewitness testimony from a neighbor that he had seen
the defendant harvest marijuana on her property the year
previously.
(c) The defendant is charged with killing X, who was about to
testify as an eyewitness in a major drug conspiracy trial.
The prosecution offers evidence of the defendant's
participation in the conspiracy.
5.7. Jerry Kozinski is being tried for burglary of an office building. A
“Z” was found spray-painted on the front door of the burglarized
building the same morning

276

the burglary was discovered. The prosecution offers the following

evidence. Is it admissible?
(a) Evidence that Kozinski had pleaded guilty to a residential
burglary two years ago in which a “Z” was found spray-
painted on the front door of the burglarized house.
(b) Records from Blockbuster Video showing that Kozinski
had rented “The Mark of Zorro” (in which the protagonist
leaves behind a letter “Z” at the scenes of his exploits)
eight times in the past three years.
5.8. Return to Problem 5.4, Pedroso v. Driver, at page 148.
Reconsider each of the offered items of evidence in light of
FRE 404(b)(2). Is the admissibility of any of this evidence
affected in light of the additional rule?
5.9. Return to Problem 3.3, United States v. Ray, at page 149. The
prosecution offers evidence that (a) in October 2013, Ray sold
25,000 shares of Rundown stock one week before a major and
abrupt fall in Rundown's share price; and (b) in May 2014, Ray
purchased 30,000 shares of Rundown 30 days before the
 company announced the profitable acquisition of a competitor,
an event which caused the stock price to rise by 25 percent.
Assume that the defense counsel's earlier FRE 403 objection
to this evidence (see Problem 3.9, at page 167) has been
overruled. Can the defense object to this evidence under FRE
404? Does that objection suggest any additional arguments for
an FRE 403 objection? How should the prosecutor respond?
5.10. Return to Problem 3.4, State v. Blair, at page 150. The
prosecution offers the following evidence. What arguments can
be made for and against admission?
(a) That in 2008, Blair pleaded guilty to a charge of simple
assault after making an unprovoked attack with his fists
on a man in a bar.
(b) Testimony from Blair's ex-girlfriend that he had beaten her
on two occasions in 2005. She received medical
treatment on both occasions, though she did not press
charges against Blair.
(c) That Blair was arrested for battering Norma in September
2008. Norma received medical treatment for her injuries,
but no charges were filed against Blair.
5.11. Return to Problem 3.5 on page 150. A retired player on the
Tomcats team who has played with Trapp for the past ten
years would testify that Trapp often has extreme outbursts of
rage when the Tomcats are losing. He also would testify that
when that happens, he has seen Trapp hit players from the
opposing team on several occasions.
5.12. Greg Simpson is charged with armed robbery and burglary.
According to the testimony of Fred Able, a knife-wielding man
wearing jeans, a T-shirt, and a ski mask broke into his home by
coming through an unlocked window. The intruder, who had a
slight limp and appeared to be over six feet tall, demanded
Able's money and threatened to kill him if he called the police.
The prosecution offers the testimony of Pam Wellington that
one week before the incident at Able's house, a man who she
identifies as Simpson came to her door, said his car had
broken down, and asked to use the telephone. He was wearing
 jeans and a T-shirt. Before Wellington could respond, Simpson
pushed his way into

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the house, pulled out a knife and demanded Wellington's money and
jewelry. As Wellington began to comply, her dog attacked
Simpson and bit him in the leg. Simpson fled through the front
door. Simpson is six feet tall. Both crimes occurred at
approximately 11:00 . . in the same neighborhood. Simpson
objects to Wellington's testimony on the grounds that the
evidence (a) is impermissible character evidence, (b) should
be excluded because of FRE 403, and (c) should be excluded
because he was acquitted of burglary and attempted robbery in
the Wellington incident. How should the court rule?
5.13. Garvin is charged with illegal possession of a firearm, which
was discovered in a Cadillac parked outside Garvin's house.
Garvin frequently used the Cadillac, which belonged to his
aunt. The prosecution wishes to introduce evidence that Garvin
had previously been arrested for robbery, that the police were
at his house to execute a warrant to search for proceeds of
robbery, that they discovered the key to the Cadillac during the
search, and that Garvin's aunt then identified herself as the
owner of the Cadillac and consented to its search. How much
of this evidence should be admissible? For what purpose?

2. Difficulties Distinguishing FRE 404(b)(2) Evidence From

Prohibited Character Evidence
Our description of three categories of specific acts evidence
admissible under FRE 404(b)(2)—essential parts of a larger story
(motive, opportunity, preparation, plan), states of mind (knowledge,
intent, absence of mistake, lack of accident), and identity (including
modus operandi)—was not intended to suggest that any past specific
act that can be shoehorned into one of these descriptors should be
deemed admissible. On the contrary, we believe that lax application
of the 404(b)(2) categories poses a real risk of undermining the
policies behind the 404(b)(1) prohibition of specific acts to prove
character to prove conduct on a particular occasion. In this section
we discuss five areas in which applications of FRE 404(b)(2) may be
in tension with the FRE 404(b)(1) ban on character evidence.
a. The Problem of “Res Gestae”
While evidence of past acts to show “motive” or “opportunity” might
supply elements that fill out the story of the case, they are also
independently relevant: for example, a person with a motive is more
likely to have done the act in question than someone with no motive.
However, parties sometimes argue for admission of evidence that is
not technically relevant on the ground that it purportedly involves the
“same transaction” as the conduct at issue in the case, or helps to
“complete the story” of the case. Such evidence is often called res
gestae, a Latinism that may give the argument to admit such
evidence more weight than it deserves. For example, it is all too easy
for a prosecutor to argue that prior criminal acts of a defendant are
part of the “larger narrative” the prosecution wants to tell. Consider
People v. Zackowitz, 254. N.Y. 192, 172 N.E. 466 (1930), which forms
the basis of Problem 5.5 at page 270, supra. The

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prosecution did in fact argue that the past acts evidence was
relevant background narrative (using the term res gestae). But why
was that particular part of the narrative at all helpful, let alone
necessary to understanding the “story” of the crime? Judge Cardozo,
writing for the court, plainly believed it was not.
Courts have taken different views on how carefully to limit
marginally relevant or irrelevant past acts evidence that is offered
only to “complete the story.” Compare United States v. Bowie, 232
F.3d 923, 929 (D.C. Cir. 2000) (“there is no general 'complete the
story' or 'explain the circumstances' exception to Rule 404(b) in this
Circuit”) with United States v. Brooks, 670 F.2d 625, 628-629 (5th Cir.
1982) (admitting evidence that marijuana was found in defendant's
car as “arising out of the same transaction or series of transactions as
the charged offense” of possession of cocaine with intent to
distribute). In our view, courts should not admit such evidence unless
it is necessary to a coherent and intelligible description of the conduct
giving rise to civil or criminal liability.
b. The Problem of Specific Acts Evidence to Prove Intent or Knowledge
FRE 404(b) identifies “intent” and “knowledge” as two of the
permissible noncharacter uses of specific acts evidence. “Intent” and
“knowledge” are two mental states that permeate our laws. Acts that
may be deemed nonculpable when done with an “innocent” state of
mind might give rise to civil or criminal liability with a “guilty” state of
mind. The presence of “knowledge” or “intent” may convert an
accident or innocent mistake into a crime or tort. (Consider Holmes's
famous quip, “even a dog knows the difference between being tripped
over and being kicked.”)
Some courts have formulated the admissibility of past specific acts
evidence to prove such states of mind this way: “Where a defendant
claims that his conduct has an innocent explanation, prior act
evidence is generally admissible to prove that the defendant acted
with the state of mind necessary to commit the offense charged.”
United States v. Zackson, 12 F.3d 1178, 1182 (2d Cir. 1993). In
Zackson, for example, the prosecution introduced evidence that the
defendant had previously participated in a marijuana-selling
conspiracy to rebut his contention that he did not willingly participate
in a cocaine-dealing conspiracy.
Does the prior marijuana selling prove intent without relying on a
character inference? The relevance of the prior marijuana conspiracy
is to prove that the defendant has a propensity to engage intentionally
in drug-selling activities, offered to show that he so intended on the
occasion of the charged cocaine conspiracy. If the defendant's
propensity to sell drugs illegally implicates a character trait, then this
use of past specific acts requires the very type of character inference
prohibited by FRE 404(b)(1).
Finally, consider how “knowledge” and “intent” are different? They
may be distinguished this way: “knowledge” is an understanding of
the nature of the elements of an act, while “intent” is the conscious
purpose to do that act. But in application, such a distinction may be
overly subtle or even a moot point. Many legal rules lump “intent” and
“knowledge” together. The federal Controlled Substances Act, for
instance, defines numerous drug crimes in terms of acts that are
done “knowingly or intentionally.” 21 U.S.C. §§841, 846 (emphasis
added). Nevertheless there may be instances in

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the context of past specific acts evidence where this distinction

could matter. Perhaps knowledge may be something that, once
acquired, is usually retained indefinitely, so that proving that someone
knew something in the past proves that he knew it on a subsequent
occasion without a character inference. In contrast, intentions are
subject to change and vary with circumstances. There is no reason to
infer that someone who intentionally kicked a dog a year ago also
intended to kick a different dog yesterday rather than, as claimed,
accidentally tripped over it—unless one infers a propensity (and
related character trait) for kicking dogs.
c. The Problem of Specific Acts Evidence to Prove Mental States That Are Not
Disputed
The danger of allowing specific acts to prove character to prove
mental states is particularly troubling in the following scenario.
Suppose the defendant is charged with the sale of heroin.
Prosecution witnesses will include the alleged purchaser and
individuals who can identify the substance as contraband and
establish a chain of custody. The defense will be that the police
arrested the wrong person and that the defendant had nothing to do
with the heroin transaction to which the prosecution's evidence
relates. The prosecution offers evidence that the defendant knowingly
sold heroin two years ago on the ground that this prior sale is
evidence of the defendant's knowledge, which is one of the elements
of the offense. The defendant objects: “knowledge of what”? The
prosecution responds: “knowledge of what heroin is and knowledge
of what a heroin sale is.” The defendant then objects that the
evidence should be excluded according to FRE 403. In support of the
objection, the defendant offers (a) to stipulate that whoever sold the
heroin did so with the requisite knowledge and (b) to accept a jury
instruction explaining the stipulation to the jury.
The Argument for Exclusion. As we discussed in Chapter Three,
the need for evidence is one of the factors to applying FRE 403. Even
without the stipulation and jury instruction, there may be little need for
the prior act evidence in the heroin sale case as long as the
defendant does nothing to suggest lack of knowledge. It seems likely
that the jury would infer knowledge from the facts of possession and
sale and from the failure to deny knowledge. Thus, even if one
believes there is a strong inferential link between the prior knowing
sale and present knowledge, the evidence, in context, appears to
have low probative value. (Do you think the prosecutors would
consider dropping the drug sale case if they did not have evidence of
previous drug selling?) The stipulation and jury instruction further
decrease the need for the evidence.
Against this low probative value, one must assess the FRE 403 risk
of unfair prejudice. If the evidence were admitted, there is the risk that
the jury would consider it in two improper ways: first, the jury might
infer that because the defendant sold heroin once before, the
defendant is the kind of person who has a character trait for selling
heroin and, therefore, probably sold it on this occasion. This particular
chain of inferences, however, is clearly prohibited by FRE 404(b)(1).
Second, there is the risk of “bad person” prejudice: the jurors may be
willing to forgo a reasonable doubt in order to convict and remove
from the streets someone who is involved with drugs. The lack

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of need for the evidence coupled with the possibility of misuse of

the evidence by the jurors creates a strong argument to exclude the
prior heroin sale evidence on FRE 403 grounds.
Early leading cases on this issue held that the past specific act
evidence should be excluded where the defendant offered to
stipulate. See United States v. Colon, 880 F.2d 650, 660 (2d Cir.
1989); United States v. Jenkins, 7 F.3d 803, 806-807 (8th Cir. 1993);
United States v. Crowder, 87 F.3d 1405, 1410 (D.C. Cir. 1996),
vacated and remanded, 519 U.S. 1087 (1997), reversed on remand,
141 F.3d 1202 (D.C. Cir. 1998) (en banc).
The Impact of Old Chief. Recall that in Old Chief v. United States,
page 174, supra, the Supreme Court acknowledged that the FRE 403
balancing process must include the “assessment of evidentiary
alternatives.” The Court then held that the defendant's stipulation
precluded the prosecution from introducing evidence of the
defendant's prior conviction when the conviction was relevant only to
show the defendant's legal status as a former felon. At the same time,
the Court observed that the probative value of evidence includes its
“descriptive richness,” its contribution to the “narrative integrity” of a
party's case, and its ability to convince a jury of what is “morally
reasonable.” With respect to FRE 404(b) issues, the Court stated in
dictum:
The issue of substituting one statement [i.e., the stipulation] for the other [i.e., the
evidentiary proof] normally arises only when the record of conviction would not be
admissible for any purpose beyond proving status, so that excluding it would not deprive
the prosecution of evidence with multiple utility; if, indeed, there were a justification for
receiving evidence of the nature of prior acts on some issue other than status (i.e., to
prove “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident,” Fed. Rule Evid. 404(b)), Rule 404(b) guarantees the opportunity to
seek admission. [519 U.S. at 190 (emphasis added).]
What impact should Old Chief have on our sale-of-heroin
hypothetical? Superficially, Old Chief seems to state two general
rules about when prosecutors are free to decline defense stipulations
that would eliminate prosecution evidence: a general rule that
prosecutors may decline such stipulations, and a narrow exception in
the circumstances of a defendant's “status.” Yet the central focus of
Old Chief is less about “stipulations” than about the FRE 403
balancing process. In the above drug-dealing hypothetical, there
seems to be no greater need to prove intent than to prove a
defendant's status as a felon because it is not disputed; intent is
reduced to something of a technicality and is not part of the narrative
of the prosecution's case. It seems clear to us that under the FRE
403 balancing process, the past acts of drug dealing to prove
(undisputed) intent should usually be excluded.
 In fact, some courts have taken the opposite view, holding that Old
Chief generally supports the admissibility of such evidence. United
States v. Bilderbeck, 163 F.3d 971, 977-978 (6th Cir. 1999); United
States v. Williams, 238 F.3d 871, 876 (7th Cir. 2001). At least two
courts of appeals have held that Old Chief overrules or at least
greatly restricts prior circuit precedent allowing defendants to rely on
stipulations to avoid the prejudicial impact of prior crimes offered to
show intent or knowledge. United States v. Hill, 249 F.3d 707 (8th Cir.
2001); United States v. Crowder, 141 F.3d 1202

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(D.C. Cir. 1998) (en banc). We view these cases as mistakenly

decided, to the extent that they seem to construe Old Chief as a
restriction on the need for a careful FRE 403 balancing.
d. Past “Accidents” or “Coincidences” and the Anticoincidence Theory
What does FRE 404(b) have to say in cases where the defendant
disputes intent—by claiming mistake or accident—and the
prosecution (or plaintiff) wants to offer evidence of prior similar
purported “accidents”? Another application of FRE 404(b)(2) that
carries the potential for misuse are anticoincidence theories of
relevance, also known as “the doctrine of chances.” Used to refute a
defense of “mistake or accident,” an anticoincidence theory is based
on the generalization that if the specific acts are sufficiently numerous
and similar to the crime charged, “coincidence” or “randomness” is
unlikely to explain their occurrence. Instead, it is more likely that there
is some unifying causal explanation—for example, a single person's
intentional, repetitive action—for the occurrence of such numerous
and similar events. As one court colorfully put it, “The man who wins
the lottery once is envied; the one who wins it twice is investigated.”
United States v. York, 933 F.2d 1343, 1350 (7th Cir. 1991); see United
States v. Beechum, 555 F.2d 487, 495 (5th Cir. 1977), vacated on
other grounds, 582 F.2d 898 (5th Cir. 1978) (en banc) (“doctrine of
chances is the idea that '[t]he prior commission of similar acts
reduces the possibility that a conceded act of disputed intent was
performed with innocent intent' ”); Paul F. Rothstein, The Doctrine of
Chances, Brides of the Bath, and a Reply to Sean Sullivan, 14 Law,
Probability & Risk 51 (2015).
Consider the following hypothetical: Adam White is charged with
aggravated battery on his three-year-old son, Jeremy, who suffered a
facial bruise and a broken left arm. White claims that the injuries
occurred when Jeremy accidentally fell down a flight of stairs. The
prosecution offers to prove that on three prior occasions when
Jeremy was in the custody of his father he suffered broken bones,
and that on two occasions White brought Jeremy's younger sister,
Ruth, to the hospital emergency room with severe head injuries.
Defense counsel objects that the past specific acts are offered to
prove that White has a character trait for physically abusing his
children and is therefore barred under FRE 404(b)(1). The prosecutor
responds that the evidence is offered for the noncharacter purpose of
proving “absence of mistake or accident” pursuant to FRE 404(b)(2).
Defense counsel then objects that there is not evidence sufficient to
support a finding, as required under Huddleston and FRE 104(b), that
any of the prior incidents are (as the prosecution claims) intentional
batteries by White rather than accidents or batteries committed by
someone else.
Viewing each incident in isolation, the defense argument seems to
have merit: there is not evidence sufficient to support a finding of the
defendant's culpable involvement with respect to any single incident.
But how likely is it that mere coincidental occurrence of similar
“accidents” can explain all of the injuries? Instead, it may be rational
to infer that intentional acts account for at least some of the injuries.
Moreover, the defendant is the only identifiable person present at the
time the

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incidents occurred. Thus, it seems reasonable to believe—perhaps

even highly probable—that the defendant was culpably involved in
one or more of the incidents, even though we do not know which
one(s). Is the evidence sufficient to support a finding by a reasonable
trier of fact under FRE 104(b) that the defendant was probably
culpably involved in one or more of the past incidents as well as the
present one? However that question is answered, it seems
appropriate in this type of situation to focus attention for preliminary
factfinding on the acts in the aggregate rather than on each individual
incident viewed separately.
Finally, defense counsel could object under FRE 403 that, even if
there is evidence sufficient to support a finding that the prior acts
were intentionally committed by White, that is insufficiently probative
that the current incident was nonaccidental to overcome the FRE 403
dangers of undue prejudice and confusion of issues.
As you can see, the doctrine of chances allows past specific acts to
prove intent where there may not be evidence sufficient to support a
finding that any single past specific act was itself intentional. To be
relevant, “anticoincidence” evidence has to support the inferences
both that at least some of the past “accidents” were not in fact
accidents and that the number of past nonaccidents suffices to refute
the defense of accident on the occasion giving rise to the current
claim or charge.
This reasoning process poses a danger of creating a significant
“doctrine of chances” loophole in FRE 404(b)(1)'s specific acts
prohibition. As Professor Imwinkelried has pointed out, one can
always conceptualize the inference from specific act to character to
action in accordance with character in terms of the doctrine of
chances. Edward J. Imwinkelried, The Use of Evidence of an
Accused's Uncharged Misconduct to Prove Mens Rea: The Doctrines
That Threaten to Engulf the Character Evidence Prohibition, 130 Mil.
L. Rev. 41, 54-75 (1990). For example, evidence of a murder
defendant's prior violent acts—which would be objectionable as
evidence of the defendant's violent character to show action in
accordance with that character—can be portrayed as “doctrine of
chances” evidence. The prosecutor could focus on the objective
improbability that the prior acts and the act in question would have
occurred randomly and suggest that, therefore, the defendant must
be culpably responsible for them as well as the act that is the subject
of the current prosecution.
 Moreover, how do we know when we have enough past purported
“accidents” to refute the current claim of accident or coincidence?
Prosecutors have often argued—sometimes successfully—that one
prior incident is enough. Compare United States v. York, 933 F.2d
1343, 1350 (7th Cir. 1991) (upholding admission of evidence of prior
unsolved murder of defendant's wife to rebut claim that death of
defendant's business partner was accidental) with Wynn v. State, 718
A.2d 588 (Md. 1998) (reversing admission of prior incident of
allegedly knowing possession of stolen goods offered to rebut
defense that current possession of stolen goods was not knowing).
But if one or two or even a few prior incidents are deemed enough to
satisfy the anticoincidence theory—at least for occurrences more
commonplace than winning the lottery—much of FRE 404(b)(1)'s
prohibition could be eroded, at least in cases where a party claims
mistake or accident.
On closer examination, the doctrine of chances looks a lot like a
version of the character inference prohibited by FRE 404(b)(1). If it is
justified, it is in cases where

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the statistical inference is strong enough to make the evidence

more probative than garden-variety evidence of past specific acts.
The question is: “How frequently does a typical, innocent person
suffer this type of loss?. . .Once the inquiry focuses on relative
frequency, it is evident that sometimes even just one uncharged
incident will be admissible to trigger the doctrine of chances.”
Imwinkelreid, supra, at 282; see also Westfield Ins. Co. v. Harris, 134
F.3d 608, 615 (4th Cir. 1998) (evidence that defendant made at least
seven prior fire insurance claims probative of whether fire in question
was deliberately set or an accident).
A final concern is this: are unaided intuitions of jurors sufficient to
make what is arguably a complex statistical inference? You have
undoubtedly encountered instances in which statisticians have
estimated the likelihood that a certain eventuality “could have
occurred by chance.” Indeed, in criminal cases, forensic evidence is
often expressed in terms of statistical probabilities. An argument
could be made that, in many—if not all—cases, courts should require
expert statistical evidence to establish how many incidents are
sufficient to trigger the doctrine of chances.
e. Modus Operandi and the Character Inference
A “modus operandi” is a pattern of behavior sufficiently distinctive or
idiosyncratic to support the inference that the same person who
committed the prior act must also have committed the one in question
in the current case. It is thus relevant where the defendant denies
committing the act in the case before the court. Because a high
degree of distinctiveness and similarity is required to establish modus
operandi, the doctrine will necessarily apply only in limited
circumstances. See United States v. Thomas, 321 F.3d 627, 635 (7th
Cir. 2003).
Courts have traditionally accepted past specific acts evidence under
a “modus operandi” theory for the noncharacter purpose of proving
“identity.” Yet, modus operandi evidence to prove identity may be
difficult to distinguish from prohibited character evidence. With each,
the proponent asks the fact finder to infer that the defendant has a
propensity to act in a certain distinctive way, as shown by past
instances, and therefore acted in that way on the occasion in
question. The only justification to treat modus operandi evidence
differently from prohibited character evidence is that, because of the
high standard of uniqueness and similarity of the behavior, it is more
probative than generic character traits.

KEY POINTS
1. FRE 404(b)(2) permits use of past specific acts to prove
“intent” even though the relevance of such evidence may
depend on making the same sort of character inference
usually prohibited by FRE 404(b)(1).
2. Where “intent” or “knowledge” is an element of the criminal
charge or civil claim but is not disputed by the defendant, the
 use of past specific acts to prove intent should arguably be
excluded under FRE 403. However, some courts have held
that Old Chief supports admission of such evidence.

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3. The “doctrine of chances” allows admission of prior incidents

as to which the defendant denies culpable involvement in
order to rebut a defense of “mistake or accident” under an
“anticoincidence” theory of relevance—the argument that it is
extremely unlikely that the past and current incidents could
have occurred randomly without the defendant's intentional
involvement.

D. AN APPLICATION OF FRE 404(B) AND FRE 403

UNITED STATES V. VAROUDAKIS

233 F.3d 113 (1st Cir. 2000)

L , Circuit Judge. . . . The government alleged that defendant
George Varoudakis, charged with arson and conspiracy to commit
arson in violation of 18 U.S.C. §844(i) and 18 U.S.C. §371, hired an
acquaintance to burn down his failing restaurant, Destinations, in
order to collect insurance proceeds. Following his conviction,
Varoudakis argues on appeal that the district court abused its
discretion by admitting evidence of a prior bad act, namely, testimony
by Varoudakis's long-time girlfriend and co-conspirator in the
Destinations arson, Cheryl Britt, that she saw Varoudakis set fire to
his leased car sixteen months before the Destinations fire. We agree
with Varoudakis that the evidence should have been excluded under
Rule 403, and that the error was not harmless. Accordingly, we
vacate the judgment.
I.
In 1991, George Varoudakis opened a restaurant and night club
called Destinations at One Congress Street in Boston. The
establishment's general manager was Cheryl Britt, Varoudakis's
girlfriend since the mid-1980s. Initially, Destinations succeeded
financially, but business declined about a year after it opened.
Varoudakis paid his suppliers cash on delivery and owed his workers
back wages. His landlord claimed $600,000 in back rent and
damages, and began eviction proceedings in December 1994.
In late 1994, after several years of carrying insurance that was
inadequate under the terms of his lease, Varoudakis increased the
contents insurance coverage for Destinations to $500,000 and bought
business interruption insurance for $100,000.
Cheryl Britt testified that Varoudakis told her he increased the
insurance so he could burn the restaurant and collect the insurance
proceeds.
Britt testified that several weeks before the April 1995 fire,
Varoudakis told her to stop paying Destinations's bills. As a result,
Britt did not pay the February 1995 insurance bill. On March 27,
1995, the insurance policy was cancelled. At trial, Varoudakis relied
on the cancellation to contest the government's theory that he burned
Destinations to collect insurance. Britt, however, testified that
Varoudakis did not know the insurance was cancelled.

285

Also sometime in March, Varoudakis began moving sound and

lighting equipment from Destinations to a property he owned in
Everett. Several employees worked long hours loading the equipment
into trucks on the days and nights leading up to the fire. According to
Britt and others, the removal included a drop-safe, tables, kitchen
equipment, liquor, and paperwork. More than $100,000 worth of
equipment was removed.
Britt and her sister, Diane Casey, testified that at the end of March
1995, Varoudakis hired Casey's boyfriend, Nick Adams, to torch
Destinations. Britt said that Varoudakis told her to pay Adams $2,000
when the job was completed.
 Destinations burned on April 4, 1995. Investigators determined that
arson caused the fire. Varoudakis did not dispute this finding at trial.
Cheryl Britt initially denied to investigators that Varoudakis had hired
Adams to set the fire. After she learned that Varoudakis had accused
Casey and Adams, and after investigators told her she could be
indicted, she implicated Varoudakis. In the course of these
discussions with investigators in October 1995, Britt was promised
immunity. However, she lied about her involvement in the fire and her
relationship with Varoudakis to investigators and in two grand jury
appearances. The government did not revoke her immunity. At
Varoudakis's trial, Britt was one of the government's main witnesses.
[A]fter a thirteen-day trial, a jury convicted Varoudakis of both arson
and conspiracy to commit arson. . . .
II.
At trial, the court allowed Cheryl Britt to testify that in December 1993
she saw Varoudakis set fire to a Cadillac he had leased. Britt said
that Varoudakis parked the car on a piece of property he owned in
Everett and that he left in another car to buy gasoline, with her as a
passenger. When he returned, he threw newspapers into the back of
the Cadillac, poured gasoline over them, and ignited the newspapers.
Britt said Varoudakis told her that he torched the car because the
lease had expired and he owed excess mileage charges, and that he
expected insurance to cover the loss. On cross-examination of Britt,
Varoudakis offered the car lease agreement to impeach Britt's
testimony that the lease had expired. The agreement showed that the
lease had 23 months remaining. Following Britt's testimony, Officer
Richard Gamby of the Everett Police Department testified that he
investigated the burning of a Cadillac in December 1993 that
matched Britt's description.
Varoudakis argues that the car fire evidence should not have been
admitted under Rule 404(b) because its sole purpose was to
demonstrate criminal propensity, or that the evidence should not have
been admitted under Rule 403 because its probative value was
substantially outweighed by its unfairly prejudicial effect. The
government responds that the car fire evidence was properly
admitted, or, if not, that its admission was harmless error.
We review the district court's determination that the prior bad act
evidence was admissible under 404(b) and 403 for an abuse of
discretion.

286
A. S A U F R E 404( )
Rule 404(b) provides that evidence of a defendant's prior bad acts
may not be admitted to prove his criminal character or propensity to
commit crimes of the sort for which he is on trial. To admit evidence of
prior bad acts, a trial court must find that the evidence passes two
tests. First, the evidence must have “special relevance” to an issue in
the case such as intent or knowledge, and must not include “bad
character or propensity as a necessary link in the inferential chain.”
Second, under Rule 403, evidence that is specially relevant may still
be excluded if its probative value is substantially outweighed by the
danger of unfair prejudice.
As the text of Rule 404(b) indicates, prior bad act evidence may be
specially relevant if, for example, it goes to the defendant's intent,
knowledge, plan, absence of mistake, or identity. Additionally, prior
bad acts may be admitted in conspiracy cases under 404(b) if they
“explain the background, formation, and development of the illegal
relationship.” We have focused on two factors to determine the
probative value of prior bad act evidence: “the remoteness in time of
the other act and the degree of resemblance to the crime charged.”
B. A R 404( )
1. The Court's Ruling
Immediately before the opening statements of counsel, in response
to a motion in limine filed by the defendant to exclude the car fire
evidence, the court ruled that Britt's testimony about the car fire would
be admissible to show Varoudakis's “plan, knowledge, and intent” in
relation to whether he “knowingly participated in a common scheme
to defraud.” In support of this rationale, the court cited the
government's allegations that Varoudakis committed both the car fire
and the Destinations arson “for a financial motive” and with “one of
the same conspirators [Britt].”
The court cited United States v. Gonzalez-Sanchez, 825 F.2d 572
(1st Cir.), cert. denied, 484 U.S. 989 (1987), as authority for its ruling.
In Gonzalez-Sanchez, the defendants, who were gang members,
were convicted of an October 1981 arson. The trial court admitted
prior bad act evidence primarily concerning two other recent fires.
Like the arson charged, both fires had also destroyed businesses
owned by the defendants and insured by the same insurance
company. These fires occurred just two months and six months
before the October 1981 fire. In upholding the court's decision to
admit the evidence, we said: “The issue at trial was not just whether
[defendant] Latorre committed arson. The broader issue was whether
Latorre knowingly participated in a common scheme to defraud.” Id.
at 581.
There are important differences between the facts supporting a
common scheme rationale in Gonzalez-Sanchez and this case.
Unlike the recurring fires in Gonzalez-Sanchez—three arsons of
business properties in six months—Britt's testimony does not suggest
a plan connecting the car fire to the Destinations fire. In United States
v. Lynn, 856 F.2d 430 (1st Cir. 1988), we held that evidence of a prior
conviction for marijuana was not admissible to show a common plan
or scheme connected to the defendant's instant prosecution for
marijuana distribution because there was no

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evidence that the previous offense “leads in a progression” to the

second. Id. at 435. Similarly here, no evidence suggests that “a
continuing or connected scheme” linked the car fire and the
Destinations fire. Id.
Finally, the court said that the car fire was specially relevant to
Varoudakis's motive to commit the Destinations fire because, in both
instances, he allegedly committed arson to alleviate a financial
burden by collecting insurance proceeds. Unlike knowledge and
intent, motive is not an element of the crime that the government
must prove. For that reason, proof of motive must be offered to show
some other element, for example, that the crime was committed, the
identity of the accused, or the accused's requisite mental state.
When prior bad act evidence is offered to prove a motive for the
crime, “courts must be on guard to prevent the motive label from
being used to smuggle forbidden evidence of propensity to the jury.”
That is the problem here. As proof of motive, the car fire testimony is
offered as circumstantial evidence that Varoudakis committed the
Destinations fire. It involves an inference of propensity as “a
necessary link in the inferential chain.” Frankhauser, 80 F.3d at 648.
Put most simply, the government argues that Varoudakis's
commission of the car fire arson in response to financial stress makes
it more likely that he committed the restaurant arson in response to
financial stress. Contrast this forbidden inference with the permissible
inference to be drawn in a case in which the prior bad act—say, a
botched robbery by the defendant that was frustrated by the
ineptitude of his cohort—provided the motive for the defendant's
subsequent assault on his cohort. There the prior bad act would
provide circumstantial evidence of the commission of the assault
without the involvement of any propensity inference.
In a case that also involved arson of a restaurant owned by the
defendant, the Eleventh Circuit excluded evidence that the defendant,
in a separate incident, threatened to “burn out” a tenant after she did
not pay a full month's rent. See United States v. Utter, 97 F.3d 509,
514 (11th Cir. 1996). As in this case, the government argued that the
tenant's testimony would show “how the defendant reacts to financial
stress.” Id. The court rejected this rationale, stating: “This is the type
of character and propensity evidence prohibited by Rule 404(b).” Id.
See also Lynn, 856 F.2d at 436. For the same reason, we find error in
the district court's financial motive rationale.

2. The Britt-Varoudakis Relationship

There is, however, a proper rationale for admitting the car fire
evidence under 404(b) that differs subtly, but importantly, from the
district court's rationale that Britt was a co-conspirator in both fires.
The government urges on appeal that the car fire evidence was
properly admitted because it demonstrates the background and
formation of the conspiratorial relationship between Varoudakis and
Britt during the planning for and commission of the Destinations fire.
In United States v. Escobar-De Jesus, 187 F.3d 148, 169 (1st Cir.
1999), we said that prior bad act evidence is admissible “to help the
jury understand the basis for the co-conspirators' relationship of
mutual trust.”
Cheryl Britt's relationship with George Varoudakis was similarly
material to the conspiracy case against him. Britt testified to the key
facts that Varoudakis hired Nick

288

Adams to torch Destinations and that he believed he still had

insurance when the arson took place. Britt's testimony also refuted
Varoudakis's alibi, and his claim that he removed the sound system
and other equipment for a legitimate purpose.
Britt knew these things because Varoudakis trusted her. Her
testimony that he allowed her to watch him torch his Cadillac
demonstrated that trust. It also demonstrated Varoudakis's
willingness to involve her in some way in his illegal acts. Like the prior
bad act evidence admitted in Escobar-De Jesus, Britt's car fire
testimony helped explain the nature of their relationship.
The defense argues that the prior bad act evidence should not be
admissible to show the background and formation of Britt's
relationship with Varoudakis because Varoudakis did not dispute that
he and Britt were long-time intimates. At first blush, this argument
seems plausible. However, we have held that evidence of prior bad
acts may be probative even when it is relevant to an issue that the
defendant does not contest. . . . [T]he fact that the defendant does
not contest the issue for which the prior bad act evidence is offered
does not, “by itself, remove those issues from the case.”
We conclude, therefore, that the car fire evidence is specially
relevant under Rule 404(b) to Varoudakis's relationship with Britt
because it shows that he trusted her so much that he was willing to
commit a crime in her presence. . . .
C. R 403
Prior bad act evidence that surmounts the bar of Rule 404(b) may
still be inadmissible under Rule 403. This rule requires the trial court
to exclude the evidence if its probative value is substantially
outweighed by “the danger of unfair prejudice.” Fed. R. Evid. 403.
Otherwise relevant evidence may also be excluded if its probative
value is substantially outweighed by “confusion of the issues, or
misleading [of] the jury, or by considerations of undue delay, waste of
time, or needless presentation of cumulative evidence.”
The district court's determination on this issue merits great
deference on appeal. Nonetheless, we find that in this case the
district court erred in finding that the car fire evidence was admissible
under Rule 403.
Under Rule 403's weighing test, “it is only unfair prejudice which
must be avoided.” We stress “unfair” because “by design, all evidence
is meant to be prejudicial.” Id. Usually, courts use the term “unfair
prejudice” for evidence that invites the jury to render a verdict on an
improper emotional basis. For example, we have upheld the
exclusion of prior bad act evidence in part because it was “undeniably
explosive,” Gilbert, 229 F.3d at 26. We are also cautious when the
prior act is a “shocking or heinous crime likely to inflame the jury.”
As the district court noted, the car fire evidence is not particularly
shocking. There is little danger that it swayed the jury toward a
conviction on an emotional basis. But Rule 403 also protects
defendants from unfair prejudice resulting from criminal propensity
evidence. As the Supreme Court has stated, improper grounds under
Rule 403 “certainly include . . . generalizing a defendant's earlier bad
act into bad character and taking that as raising the odds that he did
the later bad act now charged.” Old Chief v. United States, 519 U.S.
172, 180 (1997).

289
 To be sure, all prior bad act evidence involves some potential for an
improper propensity inference. That is why, under Rule 404(b), the
possibility that a jury may infer something negative about a
defendant's character or propensity to commit crime does not make
the evidence inadmissible unless no permissible inference may also
be drawn. Under Rule 403, however, that risk of an improper criminal
propensity inference should be considered in light of the totality of the
circumstances, including the government's need for the evidence
given other available testimony, to prove the issue identified pursuant
to the 404(b) special relevance analysis. See Old Chief, 519 U.S. at
184 (“what counts as the Rule 403 'probative value' of an item of
evidence, as distinct from its Rule 401 'relevance,' may be calculated
by comparing evidentiary alternatives”).
Here is the crux of our analysis. “The prejudice to an opponent can
be said to be 'unfair' when the proponent of the evidence could prove
the fact by other, non-prejudicial evidence.” Wright & Graham, supra,
§5214. Doubts about the probative value of prior bad acts evidence
are thus “compounded” when prosecutors have other evidence
available, “rendering negligible their need to show intent by the prior
bad acts.”
There is clearly a tension between Rules 404(b) and 403. The more
similar the prior bad act evidence is to the charged crime, the more
likely it is to be deemed relevant under 404(b). Yet the more the prior
bad act resembles the crime, the more likely it is that the jury will infer
that a defendant who committed the prior bad act would be likely to
commit the crime charged. This is precisely the kind of inference that
Rule 403 guards against.
D. A R 403
The government primarily used the car fire evidence to cast
Varoudakis as an arsonist. In its opening statement, the government
said the following: “Now, the Defendant knew very well how to plan
an arson because this wasn't the first arson he had planned.”
Although Rule 404(b) permits the admission of prior bad acts
evidence as proof of plan, we have already concluded that no
common plan or scheme linked the car fire and the Destinations fire.
In reality, this opening statement underscored Varoudakis's criminal
propensity to burn Destinations because of the car fire. In questioning
Britt about the car fire, the government did not stress the
development of her relationship with Varoudakis, a proper rationale
for admission under 404(b). Instead, Britt's testimony focused on the
facts of the car fire and Varoudakis's statement to her that he burned
the car to collect insurance coverage.
Moreover, as in Gilbert, the probative value of the car fire evidence
was minimal. The government did not need the car fire to
demonstrate the close nature of Varoudakis's relationship with Britt.
Britt testified that she and Varoudakis began a romantic relationship
in about 1985, and that they lived together for six years, beginning in
about 1989, in an apartment that Varoudakis helped Britt purchase.
Britt said Varoudakis bought her jewelry and furniture and took her on
expensive vacations.
The government also did not need the car fire evidence to prove
Varoudakis's knowledge or intent relating to the Destinations arson.
Varoudakis denied setting the fire at all, rather than arguing that he
burned Destinations unknowingly or unintentionally. There was no
evidence suggesting that Varoudakis was an innocent “tool” of

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others in the arson conspiracy like the defendant in Gonzalez-

Sanchez, 825 F.2d at 581. The absence of a dispute on these issues
weighs against admitting the evidence under 403. See Gilbert, 229
F.3d at 24 (citing as a factor weighing in favor of exclusion that “four
of the five issues adduced by the government in support of admitting
the [prior bad act] evidence do not appear to be much in dispute in
this case.”).
Britt's testimony revealed that the government did not need the car
fire evidence to establish Britt's close relationship with Varoudakis,
the only legitimate purpose of the evidence under 404(b). The
absence of any other special relevance under 404(b), including those
cited by the court and the government, was also discernible at this
juncture. The propensity danger of the evidence was unmistakable.
Thus the probative value of the car fire evidence was substantially
outweighed by the danger of unfair prejudice at the time the district
court admitted it. That ruling was erroneous.
We add two further observations. First, given the nature of appellate
review, with its restrictions to the cold record, we rarely reverse a
district court's judgment about the admissibility of prior bad act
evidence pursuant to the weighing analysis of Rule 403. Indeed, as
we have said repeatedly, “only in exceptional circumstances will we
reverse the exercise of a district court's informed discretion vis-ă-vis
the relative weighing of probative value and unfairly prejudicial effect.”
We reiterate our commitment to that principle. Here, however, we
have the exceptional case that requires us to intervene.
Second, although we do not reach the conclusion that we must
intervene on the basis of hindsight, we do reach it with advantages
unavailable to the district court.
By contrast, the prosecution does have these advantages of context
and time. Before trial, the prosecution generally knows the totality of
its case and how the prior bad act evidence fits into it. The
prosecution also has the time to analyze rigorously whether the
exceptions to Rule 404(b),1 and the limitations of Rule 403, apply to
the facts. The failure to engage in that analysis leads to the needless
complications we find in this case and others. . . . United States v.
Simon, 842 F.2d 552, 556 (1st Cir. 1988) (Torruella, J., concurring)
(“Almost any excuse or far-fetched theory is made to fit within [Rule
404(b)'s] truly exceptional language.”).
In oft-quoted language, Justice Jackson explained why our rules of
evidence are so wary of propensity evidence:
The State may not show defendant's prior trouble with the law, specific criminal acts, or
ill name among his neighbors, even though such facts might logically be persuasive that
he is by propensity a probable perpetrator of the crime. The inquiry is not rejected
because character is irrelevant; on the contrary, it is said to weigh too much with the jury
and to so overpersuade them as to prejudge one with a bad general record and deny
him a fair opportunity to defend against a particular charge. [Michelson v. United States,
335 U.S. 469, 475-76 (1948) (footnotes omitted) (quoted approvingly in Old Chief, 519
U.S. at 181)].

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Despite the fairness implications of the prosecution's use of prior bad
act evidence, the prosecution too often pushes the limits of
admissibility of this evidence, knowing its propensity power and
gambling that the time constraints on the trial court, the court's broad
discretion, the elasticity of Rule 404(b), and the harmless error rule of
the appellate court, will save it from the consequences of
overreaching. That is not always a good gamble.
[The judgment was vacated after the court further found that the
error at trial was not harmless.]

NOTES AND QUESTIONS

1. Varoudakis replicates the three-step analytical process described
in subsection C.1 for offering specific acts as evidence. The
prosecution articulated a noncharacter purpose (several in fact) for
which the evidence of the car-arson was relevant. The parties
litigated a factual dispute over whether in fact the car fire was an
arson to recover insurance proceeds. And finally, an FRE 403
objection was considered, since the danger of unfair prejudice due to
the jury's drawing the impermissible character inference is present,
despite the apparent existence of valid noncharacter purposes.
2. See if you can answer the following questions about FRE 404
and the Varoudakis case:
(a) The defendant disputed the prosecution's claim that the
car fire was in fact an arson to recover insurance
proceeds. Conflicting evidence on that point was
presented to the jury. If the question of whether the past
specific act occurred at all (or occurred in the relevant
way asserted by the offering party) is disputed, why would
the jury be permitted to hear that evidence? Under what
rule?
(b) Apparently, the prosecution offered other instances of
past specific acts of defendant Varoudakis that were not
objected to (or at least not discussed by the court as
raising difficulties). These included his decision to stop
paying the restaurant's bills and his landlord's claim of
 $600,000 in unpaid rent and unspecified “damages.”
Suppose the defense had objected to this evidence as
inadmissible under FRE 404(a) and (b)(1) because it was
offered to show his generally bad character as a
deadbeat and an irresponsible tenant. How should the
court have ruled on such an objection?
(c) Why wasn't the alleged car-arson admissible to show
Varoudakis's “knowledge, plan, intent or motive” as
argued by the prosecution? Did the court of appeals get
that issue right?
(d) Nevertheless, the appellate court held that the car-arson
evidence overcame an FRE 404(b)(2) objection. On what
theory? Does that theory fall within any of the categories
in 404(b)(2)? If not, does that mean the court made a
mistake?
(e) What ultimately is the basis for excluding the evidence?
(f) The court seemed concerned about what the prosecution
said about the car-arson evidence in its opening
statement and closing argument. How did that

292

factor into the court's analysis? A standard principle of trials is

that “statements and arguments of counsel are not
evidence.” Shouldn't a reviewing court look only at the
evidentiary record, and not at counsel's statements and
arguments, in determining the FRE 403 and 404 issues
raised in this case?
3. It is unusual for courts to be openly critical of attorneys, as the
Varoudakis court was in the last few paragraphs of the opinion. What
was the court getting at?
4. Courts and commentators frequently refer to the prohibition
against use of specific acts evidence in FRE 404(b)(1) as a
prohibition against the use of “propensity evidence” or a prohibition
against making “propensity inferences” or using specific acts for
“propensity purposes.” Almost all of the permissible uses of specific
acts evidence, however, also require the factfinder to make
propensity inferences. Thus, despite the common association of the
term propensity with FRE 404(b)(1), the concept of “propensity” is not
helpful in determining what FRE 404(b) prohibits and what it permits.

PROBLEMS
5.14. Felix Unger is charged with arson for allegedly intentionally
setting fire to a business he owns, the Odd Cuppa Joe Diner, in
order to collect on insurance proceeds. Unger contends that
the fire, which destroyed the diner, was an accident. The
prosecution offers the following evidence. Is it admissible?
(a) Evidence that two other businesses owned by Unger
burned down, one 20 years ago and one 10 years ago,
and that he claimed the fires were accidental. In each
instance, he collected insurance proceeds.
(b) Evidence that Unger pleaded guilty to arson in connection
with the fire 10 years ago.
5.15. Return to Problem 5.5 at page 270. Assume that the trial court
admitted evidence of the other guns, not to show Zachary's
“murderous prosperity,” but to “complete the story of the
crime.” Based on all that you have read, how should Zachary's
appeal be argued by the defense and prosecution? How
should the appeal be decided?
5.16. (a) In her trial for possession of one kilogram of cocaine with
intent to sell, Ann has pleaded not guilty. The prosecution
offers the testimony by a police officer that three weeks prior to
the charged crime, Ann sold cocaine to Brenda. The defense
objects, and the following colloquy takes place at the side bar:

Defense: It's improper character evidence, Your Honor.

Prosecutor: No, it's admissible on the issue of intent.
Defense: We haven't put intent in issue here, Your Honor, so at
best the testimony is premature. And there wasn't even a
conviction, so it can't get in.
What should be the ruling of the trial court on these arguments, and
why?
(b) During the defense case-in-chief, Ann testifies that she didn't know that the one
kilogram of material found in the trunk of her car was cocaine. On cross-examination,
the prosecutor asks, “Isn't it true, Ann, that you were involved in

293
drugs 11 years ago, which led to a conviction for selling heroin?” Ann's truthful answer
would be “Yes.” The defense again invokes the rule against character evidence, but the
prosecutor claims, “It goes to knowledge, intent, and plan, Your Honor.” What should be
the ruling of the trial court on this argument, and why?

E. HABIT AND ROUTINE PRACTICE

Although the Federal Rules severely limit the circumstances in which

a party may introduce character evidence to show action in
accordance with character, the Federal Rules permit the use of
evidence of a person's habit to show action in accordance with that
habit on a particular occasion. Similarly, they permit evidence of
business custom or the routine practice of an organization to show
action in accordance with that custom or practice.

1. FRE 406
RULE 406. HABIT; ROUTINE PRACTICE
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.

2. Explanation of FRE 406

Most of the Federal Rules address the issue of exclusion or
admissibility; FRE 406, which announces that a certain category of
evidence is admissible, seems technically unnecessary: FRE 402
makes all relevant evidence admissible unless it is subject to an
exclusionary rule, and nothing in the Federal Rules excludes
evidence of “habit” (as distinct from “character”).2 Nonetheless, FRE
406 serves two important functions.
First, FRE 406 places no special restrictions on admitting habit
evidence. Although most jurisdictions today do not limit the use of
habit and routine practice evidence, many older cases—including
some federal cases—required eyewitnesses or other corroboration to
admit the evidence. FRE 406 makes clear that these former
restrictions no longer apply.

294

Second, FRE 406 provides a useful clarification that habit evidence

is not subject to the strictures of the character provisions even though
habit evidence closely resembles character evidence in its form and
logic. Like traits of “character,” “habits” are tendencies or propensities
of persons to behave in certain predictable ways. Like character
evidence, the relevance of habit evidence depends on a “propensity
inference”—the inference that a person is more likely to have acted in
a certain way on a particular occasion if it was his propensity
(character or habit) to act in such a way.
Organizations may also have behavioral propensities. FRE 406
implies that inadmissible character traits are understood by evidence
law to be traits of individual persons, rather than collective groups of
persons.
a. The Importance of Habit and Routine Practice Evidence
Habit or routine practice evidence can be very useful circumstantial
proof of action on a particular occasion. For example, to show that
Alex was in the crosswalk of an intersection when he was hit by the
defendant's car, Alex may introduce evidence of his habit for using
the crosswalk at that intersection. To establish this habit Helen may
testify, “I have seen Alex cross the street at this intersection hundreds
of times, and every time he has used the crosswalk.”
Moreover, evidence of routine practice of an organization may
sometimes be the only way to prove action on a particular occasion.
Consider, for example, how an insurance company could prove that it
had sent out a cancellation notice. It seems unlikely that any
employee would have a specific memory of mailing the notice in
question. The insurance company, however, will probably be able to
rely on its routine practice to prove that the notice was sent: The
company could introduce a copy of the cancellation notice along with
the following testimony of one of the company employees: “This copy
came from our filing cabinet. It is the routine practice of the company
to put such copies in the file only when originals are prepared,
signed, and placed in the outgoing mail box. Every day at 3:00 . ., a
designated employee takes mail from our outgoing mailbox and
deposits it with the U.S. mail.” The sorts of organizations to which
FRE 406 applies must be cohesive enterprises rather than loose
associations. See United States v. Rangel-Arreola, 991 F.2d 1519,
1523 (10th Cir. 1993).
b. Methods of Proving Habit and Routine Practice
FRE 406 does not deal with the types of evidence that a proponent
may use to prove habit or routine practice in order to prove conduct
on a particular occasion, but that would be unnecessary. The FRE
404(b) prohibition on specific acts evidence to prove “character” does
not apply to the use of specific acts to prove “habit,” which by
definition is distinct from character. Typically, proponents use
evidence of the type described in the foregoing illustrations: The habit
witness is likely either to mention a number of specific acts or to offer
a summary or “opinion” based on a large number of observations that
are not individually described. If the court characterizes the summary
as opinion testimony rather than specific act testimony, that
characterization

295

should cause no problem as long as the opinion meets the

helpfulness and firsthand knowledge requirements of FRE 701, the
lay opinion rule. A routine practice witness may describe specific
instances or, as in the illustration, describe generally what the
practice is.
 Although reputation evidence is one of the traditional methods of
proving a character trait, a proponent should not be able to use
reputation evidence to prove habit or routine practice. Reputation
evidence offered for this purpose would be hearsay, and while there
is a hearsay exception for reputation evidence offered to prove
character, FRE 803(21), there is no exception for reputation evidence
offered to prove habit or routine practice.
c. The Distinction Between Habit and Character
Federal Rules 404-406 restrict the use of character evidence but
not habit evidence to show conduct on a particular occasion, and as
suggested above, habit evidence closely resembles character
evidence and relies on the same kind of “propensity” inference in
order to be relevant. Thus, the classification of a person's propensity
as “habit” rather than “character” is frequently dispositive of its
admissibility.
The Federal Rules define neither “character” nor “habit.” However,
both common usage and the case law suggest that the term habit
refers to a propensity that is much more specific and routine than a
character trait. For example, getting up every morning at 6:00 . . is
an activity that as a matter of common usage we would refer to as a
habit, whereas being violent (which typically is not something that
occurs in a regularized, routine manner) is something we would call a
character trait. Similarly, as we suggested, a court would probably
regard testimony about Alex's crossing the same intersection in the
crosswalk as habit evidence. Charmley v. Lewis, 302 Or. 324, 729
P.2d 567 (1986). Courts, however, would consider testimony that Alex
acted carefully and cautiously in general as evidence of a character
trait. Should evidence that a person “regularly stayed within
crosswalks when crossing the street” be regarded as character
evidence or habit evidence? Cf. Kovacs v. Chesapeake & Ohio Ry.,
134 Mich. App. 514, 351 N.W.2d 581 (1984) (testimony that person
approached railroad crossings in prudent, careful manner admissible
as evidence of habit).
Although courts rely almost exclusively on the extent to which
activity is specific and routine in deciding whether to call it habit
evidence, there is another factor that tends to distinguish habit from
character. As the preceding crosswalk and 6:00 . . rising examples
suggest, activity that we think of as constituting a habit tends to be
morally neutral, at least compared to character traits, which have a
more salient moral connotation: being violent is bad; being careful is
good.
The same factors that distinguish habit from character—regularity,
specificity, and moral neutrality—inhere in what the common law
referred to as business custom and what FRE 406 refers to as
“routine practice of an organization.” Indeed, according to the
Advisory Committee Note to FRE 406, this phrase refers to “behavior
on the part of a group” that is “equivalent” to the behavior of an
individual that we characterize as habit.

296
d. The Rationale for Permitting Habit and Routine Practice Evidence
The factors that tend to distinguish habit and routine practice from
character—the relatively more routine and specific nature of the
activity and the absence of moral connotation—suggest the rationales
for permitting evidence of the former and severely restricting
evidence of the latter. First, because of the regularized, specific
nature of habit and routine practice evidence, it is likely to be much
more probative of action on a particular occasion than is character
evidence. In other words, the generalization that people have a
propensity to act in accordance with their habits is likely to be true
more of the time than the generalization that people act in
accordance with their character traits. Second, to the extent that habit
or routine practice evidence is morally neutral, it does not have the
potential for prejudice that inheres in character evidence.
Gamerdinger v. Schaefer, 603 N.W.2d 590, 594 (Iowa 1999). In
addition, given the difficulty of recalling a specific instance of routine,
repetitive behavior, habit, or routine practice may be the only
evidence available for an individual, or particularly an organization to
prove a particular instance of conduct.
e. Strategies for Distinguishing Between Habit and Character
 Legal authority distinguishing habit from character is less clear than
one would like. The Advisory Committee Note to FRE 406 is vague, if
not inconsistent, on this point. The Note begins by quoting
McCormick's Handbook on the Law of Evidence that habit is “more
specific” than character and is defined as a “person's regular practice
of meeting a particular kind of situation with a specific type of
conduct, such as the habit of going down a particular stairway two
stairs at a time, . . . or of alighting from railway cars while they are
moving.” But the Note follows this only slightly helpful definition by
citing language from a case suggesting that habit means activities of
“invariable regularity that are perhaps not 'volitional.' ” Advisory
Committee Note to FRE 406 (quoting Levin v. United States, 338 F.2d
265 (D.C. Cir. 1964)).
While the Levin definition seems unduly narrow, the McCormick
passage does not tell us much about any qualitative difference
between character and habit; nor does it provide us with much of a
basis for labeling activity that falls between the fairly extreme
examples of generality and specificity. For example, what about
evidence that a person (a) is a careful driver, (b) always or usually
stops at stop signs, (c) always or usually stops at a particular stop
sign? The case law indicates that the first and probably the second
pieces of evidence would be character evidence and that the last
piece of evidence would be habit evidence. Jones v. Southern Pacific
Railroad Co., 962 F.2d 447, 448 (5th Cir. 1992) (nine various safety
violations over 29-year period not evidence of habit); Weil v. Seltzer,
873 F.2d 1453 (D.C. Cir. 1989) (passing off steroids as antihistamines
not habit; habit is something that occurs with “invariable regularity”);
Simplex Inc. v. Diversified Energy Systems, Inc., 847 F.2d 1290 (7th
Cir. 1988) (supplier's conduct in making late deliveries on other
contracts not a habit); Charmley v. Lewis, 302 Or. 324, 729 P.2d 567
(1986) (frequently crossing same intersection within unmarked
crosswalk is habit evidence). These results, however, are by no
means obvious from McCormick's description. For an excellent
discussion of the difficulties in distinguishing between character and

297
 habit, see 1A John Henry Wigmore, Evidence in Trials at Common
Law 1624-1630 (Peter Tillers rev. 1983).
Given the difficulty in articulating a priori criteria for distinguishing
between habit and character, the advocate who wishes to convince a
judge that evidence should fall into one category or the other should
follow a twofold strategy. First, of course, it will be important to look at
the existing case law and to draw analogies to and distinctions from
situations in which courts have designated evidence as habit or
character. Second, one should try to relate the desired classification
to the evidentiary justifications for having different rules for habit
evidence and character evidence in the first place. For example, if the
specificity of the conduct, the consistency of the behavior, and its
contextual similarity to the conduct at issue suggest relatively high
probative value, argue that these specific factors warrant placing the
evidence in the habit category. Similarly, to the extent that there is a
risk of unfair prejudice, argue that risk of prejudice is one of the
hallmarks of character evidence and that the evidence in question
therefore should fall in the character category. Focusing on probative
value and prejudice has the benefit of promoting rational evidentiary
decisionmaking, though to be sure, this focus will not always provide
easy answers to the question whether one is dealing with habit or
character. The reality seems to be that the distinction between habit
and character is a difference of degree rather than a clear categorical
distinction.
f. Judicial Factfinding on the Question of Habit
The immediately preceding discussion has dealt with whether a
particular activity is a habit or a character trait. A closely related but
distinct issue, which can arise both with proffered habit evidence and
with proffered routine practice evidence, is whether the evidence
establishes the existence of the habit or routine practice in the
particular case. Reconsider, for example, the illustration in which
Helen offered to testify about Alex's habit of using the crosswalk at a
particular intersection. The first question that one must ask is whether
the activity is the type that can qualify as a habit rather than a
character trait. In other words, is crossing a particular intersection in
the crosswalk, if sufficiently regularized, a habit as opposed to a
character trait? Assuming that the answer is affirmative, one must
then consider whether the witness's testimony can establish that
Alex's activity is sufficiently regularized to be his habit. If Helen had
seen Alex cross the intersection many times, always using the
crosswalk, the answer to this second question would also be
affirmative. On the other hand, if Helen offered to testify (1) that Alex
used the crosswalk only 60 percent of the time or (2) that she had
seen Alex cross at the intersection only three times, a court would
exclude the evidence on the ground that it does not show Alex's
habit. In the first alternative, Alex's activity is not sufficiently
regularized or routine; in the second alternative, Helen's knowledge of
Alex's activity is insufficient to determine whether the activity is
regularized and routine. Consider what the result should be if Helen
offered to testify that on all of the hundreds of times she had seen
Alex use the crosswalk she was crossing the street with him. Should
this evidence be admissible to prove Alex's habit to show that he was
using the crosswalk on the occasion in question, when he was alone?

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In situations in which it is arguably a close question (1) whether the

type of activity could fit within the habit or routine practice category or
(2) whether in the particular case the evidence is sufficient to
establish the habit or routine practice, courts tend to exercise fairly
tight control over the admissibility of the evidence. Courts rarely
articulate the precise bases for their conclusions, however. Consider,
for example, a situation in which a court has excluded proffered habit
evidence on the ground that the witness has not observed the activity
enough times to establish whether the habit in fact exists. The court
may have decided by a preponderance of the evidence pursuant to
FRE 104(a) that the evidence did not establish a habit. Alternatively,
the court, applying FRE 403, may have concluded that the relatively
low probative value of the evidence (in light of the few instances to
which the witness could testify) did not warrant taking the time to
litigate the matter. It may not be clear which of these theories the
court relied on. Indeed, the court may not specifically have
considered these two theoretically distinct justifications for its
exclusionary decision.
g. An Application of the Character/Habit Distinction: Drinking “Habits”
The occasional difficulties in distinguishing character from habit are
well illustrated by the special, but frequently recurring, situation of
evidence of a person's alcohol consumption practices offered as
circumstantial evidence of intoxication on a specific occasion.
Consider a case in which the defendant is charged with vehicular
homicide following a hit-and-run accident on a Friday evening and the
prosecution wants to establish that the defendant was drunk at the
time of the accident. Assume that the prosecutor is prepared to
introduce eyewitness testimony about the defendant's propensity to
drink and drive. Regardless of whether one regards a drinking
problem as an illness, presenting such evidence to the jury is likely to
be prejudicial in the sense that jurors may tend to ignore a
reasonable doubt because of their lack of sympathy for a person who
drinks and drives. Thus, in this respect, for evidentiary purposes a
tendency to drink too much—or at least a tendency to drink too much
and then drive—is like a character trait. On the other hand, if the
evidence of drinking were quite specific—for example, drinking six or
seven shots of whiskey between 5:00 . . and 6:00 . . every Friday
after work for the last 50 Fridays—the activity is as regular and
routine as much of the evidence that gets the label habit.
Ultimately, admissibility of the prosecution's evidence in our
vehicular homicide prosecution will turn on comparing the precise
nature of the evidence with the existing case law. As the Advisory
Committee's Note to FRE 406 points out, “evidence of intemperate
'habits' is generally excluded when offered as proof of drunkenness in
accident cases.” A number of courts, however, admit evidence of a
person's drinking propensities that tend to be specific and routine.
Loughan v. Firestone Tire & Rubber Co., 749 F.2d 1519, 1522-1523
(11th Cir. 1985) (“uniform pattern of behavior” over six years that
included drinking on job, usually drinking in early morning hours, and
carrying beer cooler in truck); State v. Kately, 270 N.J. Super. 356,
637 A.2d 214 (1993) (admitting testimony that defendant had been
drinking in field across from defendant's home every night each week
for about a year, that defendant would consume from one to two six-
packs of beer, and that defendant was drunk four or five nights a
week).

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h. Evidence of Custom or Routine Practice of an Organization
Do organizations have character traits? An argument can be made
that, as far as the law of evidence is concerned, they do not: The
character evidence prohibitions set out in FRE 404 apply to evidence
of the character of “a person.” While corporations and other
organizations may be treated as a “person” for certain legal issues,
FRE 406 distinguishes between the conduct of “a person” and that of
“an organization.” Reading FRE 404 and 406 together, and giving the
same terms the same meaning, thus suggests that “a person” in FRE
404 does not include organizations.
If a court assumes that organizations do not have character traits,
then there is no risk of slipping across the “line” that theoretically
distinguishes habit from character, and these courts may not look to
precisely the same criteria for proving the custom or practice of an
organization as they do for proving the habit of an individual. While
courts may insist upon a showing that an organizational practice is
routine and repetitive, they might not insist that the conduct be
morally neutral or even so commonly repeated as to happen on a
daily basis. See Vining ex rel. Vining v. Enterprise Financial Group,
148 F.3d 1206 (10th Cir. 1998) (applying FRE 406 to admit routine
practice evidence of abusive pattern of insurance policy rescissions);
United States ex rel. Koch v. Koch Industries, 1999 U.S. Dist. LEXIS
16632 (N.D. Okla. Sept. 28, 1999) (applying FRE 406 to admit routine
practice evidence of company-wide, management-directed scheme to
mismeasure the volume of oil it produced on virtually all leases).
As with habit, an objection can be made to evidence of the custom
or routine practice of an organization on the ground that the proffered
specific acts of the organization are insufficient to establish the
custom or practice, or that the witness offering an opinion of the
organizational practice lacks sufficient firsthand knowledge of the
claimed practice. In addition, the opponent can object to
organizational practice evidence under FRE 403 by arguing that, for
example, past bad acts of the organization have low probative value
for proving a routine practice, but high prejudicial effect. However, in
one important respect, the objections to organizational practice
evidence may differ from the objections that can be made to
individual habit evidence. The opponent can object to evidence
offered to show the habit of a person by arguing that the propensity is
in fact not a habit, but rather a character trait. In contrast, there may
be no “character” objection to evidence of organizational practice.
Note, however, that even where past specific acts of an organization
may be deemed insufficiently routine to fit within FRE 406, the
evidence may still be deemed admissible as “similar happenings,”
discussed in Section F, infra.
The kinds of organizations contemplated in FRE 406 are made up
of human beings, and in many cases, the custom or practice of the
organization will necessarily be shown by evidence of specific acts of
individuals who work for or otherwise constitute the organization.
Likewise, when FRE 406 speaks of using “routine practice” to prove
the “conduct of . . . [an] organization on a particular occasion,” the
rule glosses over the reality that organizations act through their
individual agents or employees. This reality should occasionally raise
the red flag of an objectionable character inference if the proponent of
the evidence is trying to use purported organizational practice to
prove the conduct of an individual.

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In a comparatively straightforward case of routine organizational

practice, consider again the problem of an insurance company
proving it sent out a cancellation notice based on an inference from
its routine practice of mailing such notices. The inference from the
routine practice is that the notice “was sent by the company.” Clearly,
some unidentified person or persons did the sending, but the law of
evidence seems to gloss over this on the theory that the identity of
the employee(s) who did the sending is not so important, and the
conduct is legally attributable to the organization anyway.
A somewhat more problematic example might arise where the
routine practice of the organization involves misconduct. Numerous
instances of police brutality or employment discrimination might be
offered to show a “pattern and practice” of such misconduct as
circumstantial evidence that the plaintiff suffered such a wrong on a
particular occasion. If the numbers are sufficient to establish the
“routine practice” of the organization, it should be permissible for the
jury to infer conduct on a particular occasion so long as the proponent
seeks to prove the organization's conduct, as opposed to the conduct
of a particular person. It is unclear whether such evidence is more
appropriately admitted as “routine practice” under FRE 406, see
Vining, supra, or instead as evidence of “similar happenings”
governed by FRE 401-403. See Sprint/United Management Co. v.
Mendelsohn, 552 U.S. 379 (2008) (analyzing alleged company-wide
pattern of discriminatory acts under FRE 403). The distinction is
probably academic, however.

KEY POINTS
1. FRE 406 places no specific limitations on the use of habit or
routine practice evidence to show action on a particular
occasion.
2. The admissibility of habit or routine practice evidence is likely
to turn on the resolution of two closely related but distinct
questions: Is the activity in question a habit (or routine
practice), or is it a character trait? Is the evidence in the
particular case sufficient to establish the existence of the habit
or routine practice?

PROBLEMS
5.17. Return to Problem 3.2 at page 148, supra. Leaving aside any
problem of hearsay, is Driver's Exhibit A admissible to show
her habit of good driving?
5.18. Consider the following two offers of evidence:
(a) Defendant Lefty Frizzell is charged with shoplifting some
tools from Deuce Hardware. At trial, he testifies that he
bought the items but was not given a sales receipt. In
rebuttal, the prosecution offers testimony of the store
manager that it was the standard practice of the cashiers
to give sales receipts for every purchase. Is the testimony
admissible over the defense's objection that

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this is inadmissible character evidence?

(b) Defendant Harry Lately is being sued for negligence for
speeding through a yellow light and colliding with the
plaintiff's car on Lately's way to work. The plaintiff offers
the testimony of Lately's supervisor that Lately was
“frequently late to work and always seemed to be in a
rush.” Is the testimony admissible over the defense's
objection that this is inadmissible character evidence?
5.19. Return to Problem 3.3, United States v. Ray, at page 149. The
prosecution
offers Beth Barker as a witness. On direct examination, Barker
is prepared to testify:
I have been employed as Bernard Ray's executive secretary since 2008. I followed
the following practice in handling Mr. Ray's mail, including hand-delivered
documents and intra-office memos. I would place incoming mail and other
delivered documents in the “in” box on Mr. Ray's desk three times each day, at
around 10 . ., around 1:30 . . and around 4:00 . . At 8:30 . . each morning,
I take all of the documents in Mr. Ray's “out” box, check to make sure that Mr. Ray
has initialed them, and then place them in Mr. Ray's files. Mr. Ray always reads
and initials his mail and other documents and puts them in his “out” box. In
response to a request from federal investigators, on September 1, 2016, I found
Exhibit 3 in Mr. Ray's files. Exhibit 3 is a March 14, 2015 memo from auditor Arthur
Andrews to Rundown CFO June Jacobs. It has Mr. Ray's initials in the top left
corner.
 Any objections? What additional questions might the prosecution have to ask in order to
secure admission of this testimony?
5.20. You are preparing to prosecute Petro R. for aggravated
manslaughter involving a fatal hit-and-run accident. There is no
dispute that Mr. R. was driving his car on a Sunday evening
and that he hit another car that was waiting to make a turn,
killing the driver. Your theory of the case is that Mr. R. was
drunk at the time of the accident and that his intoxication
supports the aggravated manslaughter charge, which requires
“extreme indifference to human life.” Mr. R. was never tested
for drunkenness because he had left the scene.
You have a witness, Bernie Zurella, the bartender, who is
prepared to testify as follows:
For the past five years Mr. R. has come into the bar virtually every weekend;
usually both Saturday and Sunday nights. He always stays about an hour, drinks
vodka steadily, becomes loud and noisy, and leaves. I really cannot remember
whether he was actually at the club on the night of the accident.
Will you be able to use this testimony?
5.21. The plaintiff has sued the defendant manufacturer for injuries
sustained when a can of refrigerant exploded. The plaintiff
claims that the explosion was caused by a defect in the
product, and the manufacturer claims that the explosion
resulted from the plaintiff's use of a heating coil to heat the
refrigerant before pouring it, contrary to the instructions on the
can. Should the court admit the manufacturer's evidence that it
was the plaintiff's habit to use an immersion heating coil to heat
cans of refrigerant? What additional information, if any, would
you want to know to decide the admissibility issue?

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F. SIMILAR HAPPENINGS

In thinking about “specific acts” or occurrences other than those

giving rise to the civil claim or criminal charge, there remains one
further category. This category is typically referred to as “similar
happenings,” and it entails prior conduct by persons or occurrences
involving inanimate objects that are offered for some purpose other
than to prove character, habit, or routine practice. Evidence of similar
happenings (or nonhappenings) falls into three broad categories:
(1) Organizational propensity offered to prove conduct on a
specific occasion. Past similar conduct of, or occurrences
within, an organization, offered to show that the organization has
a “propensity” toward certain acts or occurrences to prove the
organization's conduct (strictly speaking, the conduct of one or
more agents or employees of the organization) on a specific
occasion. Organizational “propensity” is some factor attributable
to the organization, rather than to chance (typically a formal or
informal policy), that would tend to cause the acts or
occurrences. (Some of this type of evidence may fall within FRE
406.)

Examples include evidence of numerous instances of race

discrimination against others to show a company-wide practice
offered as circumstantial proof that the company discriminated
against the plaintiff; evidence of other contracts between the plaintiff
and the defendant offered to prove the terms of the current contract
between the plaintiff and the defendant; evidence of prior safety
violations of a company to raise an inference of negligent behavior on
the occasion giving rise to the plaintiff's injury; past fraudulent
transactions by a company to show fraud against the plaintiff on a
particular occasion.
(2) Organizational liability based on policy, practice or notice.
Past similar conduct of, or occurrences within, an organization,
offered to establish an element of liability, such as “notice” or
“pattern or practice” liability, or to establish a standard of care.

Examples include prior safety violations of a company to show that

the company “knew or should have known” about potentially tortious
conditions; repeated acts of police misconduct to show an institutional
“policy, pattern or practice,” the latter being an element of municipal
liability for torts of employees; evidence of a routine custom of vehicle
safety inspections to show a standard of care that was breached in a
case where no safety inspection was made prior to the accident in
question.
(3) Characteristics of objects. Past similar behavior or operation
of, or occurrences involving, an inanimate object.

Examples include evidence that an instrumentality has caused other

similar injuries in the past (e.g., that people have injured themselves
falling on the same set of stairs, or that an allegedly defective product
or machine has malfunctioned in the past); or

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evidence that similar objects have had other characteristics similar to

an object at issue in the case (such as evidence that similar real
properties have a value comparable to the value claimed in a
property dispute).

1. No Specific Federal Rule for Similar Happenings

There is no specific Federal Rule dealing with similar happenings.
Indeed, you might wonder why it is even considered a particular
category of evidence at all.
Yet courts and commentators do, in fact, usually treat evidence of
similar happenings or nonhappenings as a distinct category of
evidence, see, e.g., 1 McCormick on Evidence §196-200 at 691-710
(John W. Strong, ed., 5th ed. 1999), for two reasons. First, similar
happenings evidence bears close resemblance to the kinds of
“specific acts” evidence that is strictly regulated by the character
provisions. Second, the reasoning process that makes “similar
happenings” evidence relevant often relies on a propensity inference
similar to that involved in character evidence. Thus, the same kinds of
recurring FRE 403 dangers that undoubtedly underlie FRE 404 may
arguably exist for similar happenings. Perhaps for this reason, many
older cases reflect a fairly strict judicial control—as a matter of case
law applying FRE 403 and its common law analogues—over similar
happenings evidence. Modern cases have liberalized admission of
similar happenings evidence and tend to treat it as a classic instance
of FRE 403.

2. Similar Happenings, Character, and Habit Evidence Compared

If you take another look at the examples of the three categories of
similar happenings evidence, you can see some obvious points of
comparison with the kinds of “propensity” evidence we have studied
so far in this chapter. Category (1) resembles character evidence
prohibited by FRE 404(b)(1), in that past similar happenings are
being offered to show organizational propensity to prove the conduct
of the organization on a specific occasion. The reason FRE 404(b)(1)
does not apply is that the propensity in question is not that of a
person, but a thing. Even though most organizations consist of
groups of people, so long as the propensity is being attributed to an
organization, courts will usually not consider it to be “character”
evidence. Similarly, category (3) evidence is offered to show the
propensity of a thing (like a machine or a piece of property). This too
falls outside the scope of FRE 404 since character (as that term is
understood by most courts) is an attribute of individual people, not
inanimate objects.
Category (1) of similar happenings evidence will sometimes overlap
with routine practice evidence under FRE 406, which allows proof of
the routine practice of an organization in order to prove conduct on a
specific occasion. But there will also be instances in which a court will
find evidence of organizational behavior to be insufficiently routine or
morally neutral to qualify as FRE 406 evidence. For instance, a
company may often defraud customers, but perhaps not so often as
to make it a “routine.” Again, such evidence is analogous to evidence
of an organization's

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“character,” but the law of evidence recognizes character traits only

of individual persons. Therefore, specific acts to prove the (quasi)
“character” of an organization to prove the organization's conduct on
a specific occasion comes within the “similar happenings” rather than
the “character” rubric. Ultimately, it is somewhat academic whether
such evidence is deemed to fall within FRE 406 or the “similar
happenings” category: either way, the admission or exclusion is likely
to depend on an application of FRE 403. See Sprint/United
Management Co. v. Mendelsohn, 552 U.S. 379 (2008) (rejecting per
se rule against admitting evidence of discriminatory acts by
supervisors other than the alleged perpetrator in the particular case,
and analyzing such evidence under FRE 403).
Where the proponent offers evidence of an “institutional propensity,”
the opponent of the evidence should be alert to the possibility that the
evidence is really a disguised effort to prove the character of an
individual. The use of past specific acts to show organizational
propensity makes sense if the acts tend to show a causal mechanism
by which some factor intrinsic to the organization—a formal or
informal policy, for example—supports the inference that the
individual acts or occurrences are not based on random factors. (The
relevance of such similar acts evidence may be, in effect, a kind of
“doctrine of chances” theory raising similar dangers of misuse.)
If, however, the purported “similar happenings” are really the actions
of a person offered to show how that person behaved on a particular
occasion, the admissibility of the proffered evidence will involve the
character provisions. Consider a product liability case in which the
plaintiff sustained injuries after a can of refrigerant exploded. The
defendant claims the can exploded because, contrary to the
instructions on the can, the plaintiff used an immersion heating coil to
heat the refrigerant. To substantiate this claim, the defendant offers
evidence that on other occasions the plaintiff used a heating coil to
heat cans of refrigerant. If the court regards the evidence as showing
the plaintiff's character trait for carelessness, it is inadmissible under
FRE 404. On the other hand, (1) if the court finds that the evidence
falls within some noncharacter FRE 404(b) purpose or (2) if the court
regards the evidence as sufficient to establish a habit, the evidence is
potentially admissible. Either way, however, what on the surface
appears to have been a past similar happening involving the can of
refrigerant turns out to be a question of individual human behavior.
3. The Admissibility of Similar Happenings Evidence Depends
on FRE 403
Don't be too caught up in the notion of “similarity” with similar
happenings evidence. Assuming the proponent of similar happenings
evidence offers witnesses with firsthand knowledge of these events,
the only rules that a judge will probably have to consider are FRE
401-403. Since no rule makes similarity a special condition of
admissibility, it is not an FRE 104 preliminary fact for the judge to
consider. Rather, the judge's task is to determine only whether the
evidence is relevant and if so whether the probative value is
substantially outweighed by the countervailing FRE 403 factors. As
with any evidence, the probative value of similar happenings
evidence depends on

305

the purpose for which the evidence is offered. The probative value
may or may not depend heavily on similarity of the proffered
happenings. For example, in a civil rights suit alleging municipal
liability based on a “pattern and practice” of excessive force by police,
it may be that the only relevant “similarity” of the incidents is that they
were all committed by members of the defendant's police force. On
the other hand, in a product liability case, courts may require a
showing of similarity of past injury incidents to establish that the other
users all used the product as directed and thereby eliminate possible
causes of injury other than product defect. Similarity in this category
of evidence really refers to the presence or absence of extraneous
factors that will make the past happenings more or less probative for
the case at hand. This probative value is balanced against the FRE
403 dangers: waste of time, confusion of issues, and unfair prejudice
caused by risk of improper inferences.

4. Applications of FRE 403 to Similar Happenings Evidence in

Practice
Since the FRE 403 balancing test favors admissibility, one's initial
instinct may be that courts should be liberal in admitting similar
happenings evidence when the only barrier to admissibility is FRE
403. The case law is consistent with this instinct when similar
happenings evidence is offered to show notice of a possible defect
(e.g., prior fuel tank explosions offered to show defendant had notice
of dangerous placement of fuel tank). Four Corners Helicopters, Inc.
v. Turbomeca, 979 F.2d 1434 (10th Cir. 1992). When the issue is
notice, the probative value of the evidence depends primarily on
whether the defendant was or should have been aware of the other
incidents and not on how similar they are to the incident that gave
rise to the litigation. But see First Security Bank v. Union Pac. R. Co.,
152 F.3d 877 (8th Cir. 1998) (substantial similarity required even
when evidence offered to show notice).
By contrast, when the probative value of the evidence depends on
the degree of similarity among the happenings, courts are likely to
require a high degree of similarity as a condition of admissibility. Most
federal courts speak of a requirement of “substantial similarity.” First
Security Bank v. Union Pac. R. Co., supra; Wheeler v. John Deere
Co., 862 F.2d 1404, 1407 (10th Cir. 1988). For example, if the plaintiff
offers incidents of uncontrollable skidding by cars with Acme tires to
prove Acme tires caused the plaintiff's car to skid uncontrollably, the
evidence is not likely to be admissible unless the plaintiff can
introduce evidence of similarity in the type of road, weather
conditions, and other factors that tend to eliminate alternative causal
explanations for the skidding incidents. Brooks v. Chrysler Corp., 786
F.2d 1191 (D.C. Cir. 1986) (excluding other automobile accidents
because of insufficient showing of substantial similarity). Perhaps one
can justify this careful screening by courts on the ground that the
probative value of similar incidents standing alone is sufficiently low
that it is substantially outweighed by the FRE 403 efficiency and
confusion factors.
In making the FRE 403 determination, one should look not merely
at the time that it will take initially to introduce the evidence but also at
the total time that it will take to deal with the evidence. Once the
proponent introduces the evidence,
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the other party is likely to feel compelled to respond with evidence

suggesting that the events did not occur at all or that there are not
relevant similarities among the events—a process that may be quite
time consuming. Thus, unless the proponent is prepared to
demonstrate at the outset that the evidence has more than minimal
probative value, an FRE 403 decision to exclude similar happenings
evidence may often be warranted.

5. Similar Happenings Offered to Show an Institutional Policy or

Practice
One of the most important uses of similar happenings is to show an
institutional policy or practice. For example, in a prisoners' class
action challenging the practices of violence at Pelican Bay Prison, the
setting that gave rise to the Johnson case in Chapter One, the
plaintiffs relied on testimony and records describing numerous
incidents of excessive force against inmates to establish their claim
that state prison officials were aware of the problem at Pelican Bay
and, in fact, “implicitly sanctioned the misuse of force and acted with
knowing willingness that harm occur.” Madrid v. Gomez, 889 F. Supp.
1146, 1199-1200 (N.D. Cal. 1995). See also Austin v. Hopper, 15 F.
Supp. 2d 1210 (M.D. Ala. 1998). In that lawsuit, the institutional
practice was itself the focal point of the suit: liability followed directly
from the establishment by the plaintiffs of the institutional practice,
without having to draw further inferences about conduct on a specific
occasion.
In civil rights cases brought by individuals against a municipal police
force for police brutality, evidence of other incidents of excessive
force is legally necessary in order for plaintiffs to win a judgment
against a city, county, or other “municipality”: “[A] plaintiff must prove
a specific pattern of conduct or series of incidents violative of
constitutional rights in order to sustain the existence of a municipal
policy or custom.” Sherrod v. Berry, 827 F.2d 195, 206 (7th Cir. 1987);
see Monell v. New York City Dept. of Social Servs., 436 U.S. 658
(1978).

6. Evidence of Similar Nonhappenings

“Similar happenings” evidence is also understood to include evidence
of nonhappenings offered to prove lack of notice or that an event did
not occur or did not occur in the manner or for the reason alleged
(e.g., evidence of the absence of people falling down a staircase to
rebut the plaintiff's claim that the staircase was dangerous). See
Landis v. Jarden Corp., 5 F. Supp. 3d 808, 818 (N.D. W.Va. 2014) (“In
general, courts have recognized that the absence of prior accidents
involving a product may be admissible in a product liability case to
show (1) absence of defect, (2) the lack of a causal relationship
between plaintiff's injury and the defect alleged, (3) the nonexistence
of an unduly dangerous situation, and (4) lack of notice.”). In this type
of case a court is likely to require evidence that the conditions were
similar during the time of the nonhappenings. In addition, the court is
likely to require a significant number

307

of nonhappenings. Whereas evidence that two or three people fell

down a staircase may be quite probative to show that the staircase
was dangerous, evidence that two or three people managed to use
the staircase without falling is not very probative of the proposition
that the staircase is safe. Those two or three people may fortuitously
have avoided the dangerous spot. Evidence that several hundred
people used the staircase without falling under conditions similar to
the conditions that existed when the plaintiff fell, however, is quite
probative of the proposition that the staircase was not dangerous at
the time of the plaintiff's fall.

KEY POINTS
 1. Evidence of similar happenings or nonhappenings is offered to
show such matters as (a) the behavioral propensity of an
organization or an object, (analogous to the “character” of a
person) to show the behavior of the organization (or its agents
or employees) on a specific occasion, (b) the institutional
policy of an organization where that is a fact of consequence
or essential element, or (c) the behavior or characteristics of
an inanimate object.
2. There is no specific Federal Rule governing the use of similar
happenings. Admissibility depends on an application of FRE
401-403.
3. Because similar happenings evidence involves either no
propensity inference at all, or else a propensity inference
about organizations or things rather than individual persons, it
is not considered to be evidence of “character” and is therefore
not governed by FRE 404.
4. Except when similar happenings evidence is offered to show
notice, courts tend to require a showing of similarity as a
condition of admissibility.

PROBLEMS
5.22. Henry purchased Acme Household Cleanser and used it for
the first time to clean his kitchen. He suffered severe burns
where the cleanser came into contact with his skin. Henry sues
Acme Corp., the manufacturer, for strict product liability,
alleging $50,000 in damages. Henry offers testimony that
during the five years before the incident seven people were
severely burned by Acme Household Cleanser and that four of
these instances were reported to Acme. Should any of this
evidence be admissible?
5.23. Paul Preston has sued National Motor Corporation (NMC) for
personal injuries arising out of an auto accident in which his
“Bounder” sports utility vehicle rolled over while making a tight
 turn on a highway entrance ramp. Preston claims that a design
defect in the Bounder makes it prone to rollover accidents.
Preston offers evidence showing 50 incidents of rollovers by
Bounders on entrance or exit ramps while traveling at or below
the speed limit. On what basis could the defense object?
Should the evidence be admitted?

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5.24. The plaintiff William Lane has brought a damages action

against the Los Angeles Police Department for violating his
civil rights by using a potentially lethal “chokehold” in making
arrests under circumstances where deadly force is not
warranted. Lane offers evidence of 20 incidents in which the
chokehold was applied to persons other than himself. Lawyers
for the LAPD argue that the evidence is inadmissible character
evidence to prove that Lane was choked on a specific occasion
and that the other incidents are too dissimilar from one another
to be probative and too sporadic to constitute a routine practice
under FRE 406. Lane argues that the evidence is offered to
prove that the LAPD had a “custom, policy, pattern or practice”
of unwarranted use of the chokehold. Should the evidence be
admitted?
5.25. Fred Johnson is suing Farming Partners for breach of an oral
contract for the sale of tomatoes grown by Johnson. Johnson
claims that the contract was for the sale of tomatoes outright at
a quoted price. Farming Partners claims that the agreement
was for it to take the tomatoes on consignment. To establish
Farming Partners' routine business practice, Johnson offers
the testimony of two other tomato farmers that they entered
into oral contracts with Farming Partners for the sale of
tomatoes, that the contracts were for outright sales, and that
Farming Partners breached the contracts by maintaining the
position that they had accepted the tomatoes only on a
consignment basis. Is this evidence admissible?
5.26. Ed Naples has brought an action against Acme Lawn Tool
Company for breach of an oral employment contract. Acme
fired Naples six months after he had been hired as Vice
President for Sales. Naples claims the contract was for a fixed
term of one year; Acme claims that it was an “at will” contract.
Acme offers the testimony of several members of the Acme
Board of Directors that all officers of the company are
employed on an at-will basis. Should this evidence be
admitted? What, if any, additional information would be helpful
to your decision?
5.27. Pamela King has sued the Whoopie Amusement Park for
personal injuries she sustained riding on Whoopie's roller
coaster. According to Pamela's testimony, “A tree limb hit me in
the face when I was riding on the roller coaster.” The force of
the blow broke her glasses and pieces of the lens were lodged
in her eye. As part of its defense Whoopie offers the testimony
of the amusement park manager (a) that during the entire
summer up to the time of the plaintiff's injury nobody had
complained about low-hanging branches along the path of the
roller coaster and (b) that on the day the plaintiff was injured
over 1,000 other persons rode the roller coaster without
incident. For what purposes is the defendant's evidence
relevant? Should it be admitted?
5.28. Return to Problem 3.2 at page 148. Should Driver be permitted
to testify on direct examination that she has never had a
driving accident?

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G. EXCEPTIONS TO THE PROHIBITION ON USE OF

CHARACTER TO PROVE CONDUCT ON A PARTICULAR
OCCASION

1. Explanation of FRE 404(a)(2), (3)

There are four exceptions to FRE 404(a)'s prohibition on character
evidence to prove conduct on a specific occasion. These are set out
in FRE 404(a)(2) and (3). FRE 404(a) provides:
(a) Character Evidence.
(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.
(2) Exceptions for a Defendant or Victim in a Criminal Case. The following
exceptions apply in a criminal case:
(A) a defendant may offer evidence of the defendant's pertinent trait, and if the
evidence is admitted, the prosecutor may offer evidence to rebut it;
(B) subject to the limitations in Rule 412, a defendant may offer evidence of an
alleged victim's pertinent trait, and if the evidence is admitted, the prosecutor may:
(i) offer evidence to rebut it; and
(ii) offer evidence of the defendant's same trait; and
(C) in a homicide case, the prosecutor may offer evidence of the alleged victim's
trait of peacefulness to rebut evidence that the victim was the first aggressor.
(3) Exceptions for a Witness. Evidence of a witness's character may be admitted
under Rules 607, 608, and 609.

a. FRE 404(a)(2)(A) and (B): A Criminal Defendant's Right to Open the Door to
Character Evidence
A criminal defendant is free to introduce evidence of the defendant's
own “pertinent trait” of character (FRE 404(a)(2)(A)) or of the victim's
character (FRE 404(a)(2)(B)). This is often called “opening the door”
to the character issue. For example, in the Johnson case the
defendant could have introduced evidence of his own peaceful
character for the purpose of showing action in accordance with that
character trait at the time of the altercation with the prison guards
(i.e., for the purpose of showing that he was behaving peacefully and
was not the aggressor). FRE 404(a)(2)(A). Similarly, Johnson could
have introduced evidence that one or more of the prison guards who
were victims had a violent character in order to suggest that they
were the aggressors in the incident. FRE 404(a)(2)(B). In fact,
Johnson did introduce evidence of prison guard Walker's character
for violence (see, e.g., pages 54, 59-61. As we discuss in

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subsection g, infra, however, it is not clear that Johnson introduced

the evidence to suggest that Walker was the first aggressor.
 b. FRE 404(a)(2)(A) and (B): The Prosecution's Right to Respond to a Defendant's
Character Evidence
When a defendant elects to open the character evidence door, the
prosecution in its rebuttal case may introduce character evidence to
rebut the defendant's evidence. For example, if an assault defendant
introduces evidence of the defendant's own good character for
peacefulness, the prosecution can respond with evidence that the
defendant has a character trait for violence in order to show that the
defendant was the aggressor. FRE 404(a)(2)(A). Similarly, if an
assault defendant introduces evidence of the victim's character for
violence in order to suggest that the victim was the aggressor, the
prosecution may respond with evidence of the victim's character for
peacefulness. FRE 404(a)(2)(B)(i). In the Johnson case, some of the
prosecution's rebuttal focused on Officer Walker's good character
(page 67, supra). One thing the prosecution may have been
attempting to do was to prove Walker's good character so that the
jury could infer that Walker did not act improperly at the time of the
altercation with Johnson.
Note that when defendants open the door to a victim's bad
character, they also open the door to their own bad character. FRE
404(a)(2). Thus, in the preceding hypothetical where the assault
defendant introduced evidence of the victim's character for violence,
the prosecutor could respond not only with evidence of the victim's
character for peacefulness, FRE 404(a)(2)(B)(i), but also with
evidence of the defendant's character for violence, (B)(ii).
Whenever the prosecution is rebutting the defendant's character
evidence, the prosecution's evidence must be about the same
character trait addressed by the defendant's evidence. This limitation
is implicit in the term rebut, and FRE 404(a)(2)(B)(ii) makes the
limitation explicit when the prosecution responds to evidence of the
victim's bad character with evidence of the defendant's “same” bad
character. Thus, in the foregoing hypotheticals, the prosecutor could
not respond to the defendant's evidence about the victim's violence or
the defendant's peacefulness with evidence of the victim's honesty or
the defendant's dishonesty. This prosecution evidence would not
rebut the defendant's evidence because a person can be both violent
and honest or peaceful and dishonest.
c. FRE 404(a)(2)(C): The Prosecution's Right to Use Character Evidence to Respond
to Defense Attacks on a Homicide Victim's Conduct
FRE 404(a)(2)(C) also provides that the prosecution may introduce
evidence of a homicide victim's character for peacefulness, if the
defendant has suggested that the victim was the first aggressor.
Assume, for example, that Johnson had killed Officer Walker and was
being prosecuted for homicide. Assume further that Johnson or other

311

defense witnesses testified that Walker was the first aggressor and
that Johnson had acted in self-defense. This defense testimony is not
character evidence. The defendant is not trying to show Walker's
general character for violence. Rather, the defendant is offering
evidence of specific actions of Walker that constitute an element of
the self-defense claim. The prosecutor, however, can respond to this
testimony with evidence of Walker's good character for peacefulness.
This character evidence is admissible because Johnson introduced
evidence that Walker had been the first aggressor; it is not dependent
upon Johnson's opening the door to his own or Walker's character.
However, since Johnson was not actually a homicide case, the
prosecution could not open the door to Walker's peaceful character to
show action in accordance with character.
Even if Johnson had been a homicide case, the prosecution could
not have opened the door to defendant Johnson's character for
violence. The prosecution can never introduce evidence of the
defendant's character unless the defendant has first introduced
character evidence. The possibility that the prosecution might
improperly open the door to Johnson's character was the focus of a
sidebar early on in the Johnson case. When the prosecution sought,
over objection, to inquire into the nature of the facility where the
defendant was housed, the court indicated that the prosecution
witnesses could describe Facility B but could not directly state that
the inmates in that facility tended to be violent (pages 9-10, supra). If
the jurors heard such testimony about the inmates, they might infer
that Johnson, one of the inmates, was a violent person and therefore
probably had acted violently at the time of the alleged attack on the
guards.
d. The FRE 404(a)(2) Requirement of Pertinence
According to FRE 404(a)(2)(A) and (B) the defendant's and the
prosecution's character evidence must tend to establish a “pertinent”
character trait. For example, in the Johnson case it would have been
permissible for the defendant to introduce evidence of his own
character for peacefulness or evidence of a prison guard victim's
character for violence to show that the guard, not Johnson, was the
aggressor. Similarly, it would be permissible for a defendant charged
with perjury to introduce evidence of the defendant's character for
honesty to show that the defendant did not intentionally lie on the
particular occasion in question. In the Johnson case, however, it
would not have been permissible for the defendant to introduce
evidence of a prison guard's character for dishonesty to show that the
guard was the aggressor; and it would not be permissible to introduce
evidence of a perjury defendant's character for peacefulness to show
that the defendant did not commit the perjury.
e. The Rationales for the FRE 404(a)(2) Exceptions
As we have seen, there are substantial concerns justifying the FRE
404(a)(1) prohibition against the use of character evidence to show a
person's action in accordance

312

with character. One might ask why, then, there are any exceptions
to the FRE 404(a)(1) general rule of exclusion. First, as we suggested
in subsection B.3.a, above, the problem of unfair prejudice is likely to
be greatest with respect to evidence of a criminal defendant's bad
character. This type of evidence, however, will never be admissible
unless the defendant chooses to open the door to the character
evidence inquiry. Second, despite the low probative value of
character evidence to show action on a particular occasion and
despite the risk of unfair prejudice to the prosecution (e.g., the jury
may be willing to acquit a guilty defendant who assaulted a person
with a bad character), a criminal defendant should not have to face
the consequences of conviction without having had every opportunity
to establish a reasonable doubt. Proof of the defendant's good
character or the victim's bad character may establish such a doubt.
Third, any risk of unfair prejudice to the defendant from evidence of
a victim's good character seems relatively remote. The concern here
is that jurors, on hearing of the victim's good character, would be
willing to convict a defendant about whose guilt they had a
reasonable doubt but who they believe nonetheless may have
committed a crime against a good person. Moreover, the defendant
has the right to keep the victim-character evidence door closed
except in homicide cases where the defendant claims that the victim
was the first aggressor. In these relatively rare instances, the
defendant and the victim may have been the only persons present at
the time of the killing. The unavailability of the victim to contradict the
defendant's evidence arguably justifies allowing the prosecution to
resort to character evidence to establish its case.
f. FRE 404(a)(3): The Character of Witnesses
FRE 404(a)(3) is a cross-reference to the rules that permit the
impeachment and rehabilitation of witnesses with evidence of their
character for truthfulness. FRE 404(a)(3) allows impeachment and
rehabilitation of witnesses based on their character for truthfulness
pursuant to FRE 607-609, which applies to both criminal and civil
actions. Otherwise, there are no exceptions in civil cases to 404(a)
(1)'s prohibition on character evidence to prove action on a particular
occasion. The relevance of any witness's testimony depends upon
the assumption that the witness is testifying truthfully. Thus, parties
are permitted to introduce evidence that either undermines or
supports a witness's truthfulness. One way to do this is to show the
witness's character for truthfulness. From evidence that a witness has
a bad (or good) character for truthfulness, one can infer that the
witness is acting in accordance with that character trait by being
untruthful (or truthful) on the witness stand. We will consider the rules
that govern evidence of a witness's character for truthfulness in
Chapter Seven.
g. An Application of the Character Rules: People v. Johnson
The evidence of Walker's character in the Johnson case is relevant
for two distinct purposes. Diagrams 5-3 and 5-4 illustrate these two
purposes.

313

314

315

As Diagram 5-3 indicates, reputation evidence of Walker's character

is relevant to show that Walker acted in accordance with that
character on March 28, 1992 (i.e., to show that he may have been the
aggressor against Johnson). The evidence, however, may not be
admissible for this purpose under FRE 404(a)(2), which permits the
defendant to open the door to a pertinent character trait of “the victim
of the crime.” Although Walker was one of the correctional officers
present at the scene, the defendant was charged with battery against
only Officers Huston and Van Berg (pages 2-3, supra). Thus, in a
formal sense, Walker was not the victim of any crime. What
arguments can you make that the evidence of Walker's character
should nonetheless be admissible to prove that Walker was the first
aggressor?
Diagram 5-4 illustrates an alternative theory of relevance. Because
the reputation evidence of Walker's violent character was introduced
in conjunction with evidence that the defendant knew of the
reputation, the evidence is relevant to a claim of self-defense. One
element of self-defense is that any aggressive action by a defendant
must be the result of a reasonable fear of bodily harm. Johnson's
awareness of Walker's reputation for violence suggests the
reasonableness of Johnson's actions. Similarly, the prosecution
testimony that Walker was not known among the inmates as a violent
person is evidence from which one may infer that Johnson had no
reason to fear Walker.
This second theory of relevance does not involve using character
evidence to show action in accordance with character. Therefore, it is
not within the scope of FRE 404; rather, admissibility of the evidence
for this purpose depends solely on the application of the basic
relevance concepts embodied in FRE 401-403. The fact of
consequence is what Johnson was thinking when Johnson acted, not
whether Walker acted in accordance with Walker's character. Indeed,
for the purpose of showing what Johnson was thinking, it does not
matter whether Walker really was a violent or peaceful person. What
is important is whether the defendant had a reasonable (even if
incorrect) belief that Walker was violent.
We suggest that you reread pages 45-46, 59-60, 62-63, and 79-81,
supra, in Chapter One. Did the judge and the attorneys adequately
distinguish these two theories of relevance?

KEY POINTS
 1. The Federal Rules allow character evidence to prove action in
accordance with character in the situations set forth in FRE
404(a)(2):
(a) a criminal defendant may open the door to a pertinent trait
of the defendant's own good character, in which case the
prosecution may then offer evidence to rebut that same
character trait;
(b) a criminal defendant may open the door to a pertinent trait
of the victim's bad character, in which case the prosecution
may then offer evidence to rebut that same character trait
of the victim and to prove the same pertinent trait of the
defendant's bad character;
(c) in a homicide case the prosecution may open the door to
the victim's character for peacefulness in order to rebut the
defendant's claim that the victim was the first aggressor.

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2. Any party may introduce character evidence for impeachment

and rehabilitation purposes to the extent allowed by FRE 607-
609.
3. When the use of character evidence is permissible, the
character evidence must relate to a pertinent character trait.
4. Except in the context of impeaching and rehabilitating
witnesses, FRE 404 prohibits the use of character to prove
action in accordance with character in civil cases.

2. Explanation of 405(a): How Character Is Proven When the FRE

404(a)(2) and (3) Exceptions Apply
When character evidence is admissible under one of the FRE 404(a)
(2) or (3) exceptions, in what form can the evidence be offered?
Rules 404(b)(1) and 405(a) govern this question. FRE 404(b)(1)
provides:
 Evidence of a crime, wrong, or other act is not admissible to prove a person's character
in order to show that on a particular occasion the person acted in accordance with the
character. . . .
RULE 405. METHODS OF PROVING CHARACTER
(a) By Reputation or Opinion. When evidence of a person's character or character trait
is admissible, it may be proved by testimony about the person's reputation or by
testimony in the form of an opinion. On cross-examination of the character witness, the
court may allow an inquiry into relevant specific instances of the person's conduct.
There are three possible ways one might try to prove character in the
absence of the above rules. First, a witness might offer specific
instances of conduct of the person whose character is in question.
One's character, after all, is known to others by how one behaves.
Second, a witness could offer to testify that in the witness's opinion
the person in question has the particular character trait. Finally, a
witness could offer to testify that the person has a reputation in the
community for having the kind of character trait that is relevant to the
litigation. An individual's reputation is what people say about the
individual, and when reputation evidence is offered to prove
character, it is the truth of the reputation that is important. Thus,
reputation evidence is hearsay—evidence of what people out of court
say about the individual offered to prove the truth of what they say.
FRE 803(21) provides an exception to the hearsay rule for evidence
of reputation offered to show an individual's character.
FRE 404(b)'s prohibition on the use of specific acts to prove a
person's character for the purpose of showing action in accordance
with that character trait expressly applies to the FRE 404(a)
exceptions. Therefore, even when character evidence is admissible
under FRE 404(a)(2), it may not be proven by past specific acts. For
example, during the prosecution's rebuttal in the Johnson case, the
trial judge made it clear that Lieutenant Stokes could not testify about
specific acts for the purpose of proving Walker's good character
(page 65, supra).

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FRE 405(a) provides that reputation evidence and opinion evidence

are permissible means of proving character whenever a party offers
admissible character evidence to show action in accordance with that
character. Assume, for example, that in the Johnson case, Walker
was properly considered a victim (which technically he was not,
because no charge was based on the alleged assault on him).
Assume further that the defense and the prosecution were interested
in proving Walker's character for violence or peacefulness for the
purpose of showing whether he was the first aggressor. See Diagram
5-3 at page 313, supra. The following evidence could be used for this
purpose: Inmate Green, a defense witness, testified on direct
examination that Walker had a reputation for being a “bad cop” (page
54, supra); on redirect examination Green testified that Walker was
known among the inmates—that is, had a reputation among the
inmates—for violence; and during the prosecution's rebuttal case,
Lieutenant Stokes testified Walker had the reputation as a good
correctional officer (page 67, supra). Pursuant to FRE 405(a) it also
would have been permissible for these witnesses to offer their
opinions about Walker's violence or peacefulness.
For ease of reference, we will refer to witnesses who give reputation
or opinion testimony about a person's character pursuant to FRE
405(a) as “character witnesses.” The last sentence of FRE 405(a)
permits the opposing party to ask character witnesses questions
about specific acts on cross-examination. We discuss this part of the
rule in subsection 5, infra.
a. The Prohibition Against Using Specific Acts to Prove Character
The FRE 404(b)(1) prohibition against the use of specific acts to
prove character to show action in accordance with character may
seem counterintuitive. The people that we know—or that we think we
know—the best are likely to be people that we know by their deeds.
Thus, it would seem that specific acts evidence would often be the
most probative form of character evidence. Nonetheless, as
discussed above, there are substantial FRE 403-type countervailing
concerns that justify excluding specific acts to prove character to
show action in accordance with character. These include: bad person
prejudice stemming from evidence of prior bad acts; confusion of
issues and undue consumption of time if there are factual disputes
surrounding the alleged prior conduct; and the relatively low probative
value of the character inference generally.
There are limited instances in which it is permissible to use
evidence of a person's specific acts to prove that person's character
to show action in accordance with character. FRE 608(b) and 609
contemplate use of specific acts to prove the character of a witness
for truthfulness or untruthfulness, and FRE 413-415 contemplate the
use of specific acts to prove character to show action in accordance
with character in certain cases of sexual misconduct.
b. The Probative Value of Opinion and Reputation Evidence to Prove Character
The probative value of opinion or reputation evidence to prove a
person's character will depend in part on how long, how well, and in
what contexts the witness has

318

known (opinion) or has known about (reputation) the person whose

character the evidence is offered to prove. The common law (which
did not permit opinion evidence at all in most jurisdictions) required
that a reputation witness testify to the person's reputation in the
community. In theory, this focus on the community as a whole was
designed to ensure that evidence be fairly reflective of the views
about the person in question. As a practical matter today, however,
there will not be many instances in which an individual has a
reputation throughout the entire community in which the person lives.
Indeed, in our complex, urbanized society, it is not clear what the
entire community would be. Courts wisely recognize this fact and
permit reputation testimony to be based on what a witness has heard
in some relevant community—perhaps the neighborhood where the
person lives or the place where the person works. Consider, for
example, the Johnson case, where defense counsel objected on
relevance grounds to evidence of Walker's good reputation among
the prison staff. According to the defense, the evidence should have
been limited to Walker's reputation among the inmates, but the judge
disagreed:
 I am going to overrule the objection because although the inmates and the staff are not
precisely the same, they are a part of the community within the prison and are in
communication with one another on a constant basis. So reputation is something that is
back and forth and it is the kind of thing that would be known. [Page 65, supra.]
Even if there is no difficulty in defining the relevant community, there
may be a question whether the witness knows or knows about the
individual well enough to testify in the form of opinion or reputation.
The Federal Rules do not deal specifically with the foundation
requirement for character witnesses. FRE 403, however, provides
latitude for trial judges to exclude testimony that is marginally
probative because the witness does not have much of a basis for
knowing or knowing about the person in question. United States v.
Watson, 669 F.2d 1274 (11th Cir. 1982) (not error to exclude
testimony of character witness who knew individual for brief period of
time, which did not coincide with relevant events at trial).
Character witnesses are likely to be friendly, cooperative witnesses
on direct examination. Thus, if the witness in fact has a sufficient
basis for offering character evidence, there should seldom be any
difficulty in eliciting the appropriate foundational information and in
getting responses in the form of reputation or opinion testimony to
questions about pertinent character traits. Michelson v. United States,
335 U.S. 469, 471 (1948), where a bribery defendant opened the
door to his own character, provides a good, albeit somewhat sparse,
example of a direct examination of a character witness:
Q: Do you know the defendant Michelson?
A: Yes.
Q: How long do you know Mr. Michelson?
A: About 30 years.
Q: Do you know other people that know him?
A: Yes.
Q: Have you had occasion to discuss his reputation for honesty and truthfulness and for
being a law-abiding citizen?

319
A: It is very good.
Q: Have you talked to others?
A: Yes.
Q: And what is his reputation?
A: Very good.
For an elaboration of the common law foundation requirements for
reputation and opinion testimony, see Mason Ladd, Techniques and
Theory of Character Testimony, 24 Iowa L. Rev. 498 (1939).
c. Reputation Evidence versus Opinion Evidence
Opinions are generalizations from more specific facts, and an
opinion about a person's character will naturally be a generalization
based on the witness's perception of that person's behavior. In
situations other than character testimony, when a witness testifies in
the form of opinion, it is permissible—indeed, desirable—to inquire
into the underlying basis for the opinion on both direct and cross-
examination. Because of this standard practice, the use of opinion
evidence to prove character creates the possibility that the opinion
witness could testify about various specific acts that provide the basis
for the opinion. The common law's reluctance to permit litigation over
specific acts is precisely the reason that the majority common law
rule prohibited opinion testimony, along with specific acts testimony,
to prove character to show action in accordance with character.
Nonetheless, witnesses who are called to testify about an
individual's character are likely to have rather strong personal feelings
about the individual who is the subject of their testimony. If they testify
in terms of reputation, the real gist of what they are thinking and of
what motivates their testimony may well be their opinion about the
defendant's character. Recognizing this possibility, the drafters of the
Federal Rules took the position that these character witnesses should
be permitted to offer their opinions directly. Thus, FRE 405(a) permits
both reputation and opinion testimony in all instances in which
character evidence is admissible. At the same time, however, the
Advisory Committee Note to FRE 405 makes it clear that the use of
opinion testimony to prove character to show action in accordance
with character should “be confined to the nature and extent of
observation and acquaintance upon which the opinion is based.”
Opinion testimony should not be allowed to evolve into testimony
about specific acts on which the opinion may be based.
 KEY POINTS
1. FRE 404(b) prohibits the use of specific acts to prove a
defendant's character for the purpose of showing action in
accordance with character, except in the limited situations
governed by FRE 413-415, FRE 608(b), and FRE 609, which
we will consider later.
2. FRE 405(a) permits the proponent to offer both reputation and
opinion testimony in the limited situations in which FRE 404(a)
allows the use of character evidence to prove action in
accordance with character.

320

3. If a character witness offers opinion testimony, it is not

permissible to explore on direct examination the specific acts
that may be the basis for the witness's opinion.

PROBLEMS
5.29. In the Johnson case, assume that one of the charges was
assaulting Officer Walker. For what purposes, if any, should the
following evidence be admissible?
(a) Officer Huston's testimony for the prosecution that on
several previous occasions Johnson had assaulted other
prisoners and prison guards;
(b) Inmate Green's testimony for the defense that Officer
Walker has a reputation for violence;
(c) Officer Walker's testimony for the prosecution in rebuttal
that Johnson has a reputation for violence.
5.30. Mayer is charged with assault with a deadly weapon and
claims self-defense. In his defense, Mayer offers testimony that
(a) two weeks before the alleged assault the victim had
threatened him with a knife, (b) the victim had a reputation for
carrying weapons, and (c) on the morning of the trial the victim
 threatened to kill Mayer's sister. For what purposes is this
evidence relevant? Is it admissible?
5.31. Clarence Hill is being prosecuted for the attempted murder of
Ted Ellsworth in a jurisdiction that views mere words as
potentially adequate provocation, which would be a defense to
the attempted murder charge.
Clarence and several eyewitnesses testify as follows: They
and Ted Ellsworth were all in a local tavern, and Hill and
Ellsworth were at opposite ends of the bar. Ellsworth taunted
Hill with racial slurs and derogatory references to Hill's wife. Hill
became enraged and shot Ellsworth.
The prosecutor is convinced that these witnesses are lying
and wants to introduce the testimony of Ruth Watson that
Ellsworth has a reputation in the community for peacefulness,
compassion, and absence of racial prejudice. Ellsworth is not
available to testify. Is Ruth Watson's testimony admissible?
5.32. On the night of October 7, Elton Haywood called the police to
report a prowler in his backyard and then went outside with a
shotgun to search for the prowler. When the police arrived,
they mistook Haywood for the prowler, and despite—or
perhaps because of—Haywood's loud, persistent protestations,
they handcuffed him. Eventually the police took Haywood to
the Dry-U-Out Detoxification Facility, where he spent the night
locked in a cell with a urine-soaked floor. Haywood has filed a
civil rights and false imprisonment suit against the facility and
several of its employees. Although Haywood has had a
drinking problem in the past, he claims that he had had nothing
to drink on the night of the incident and that he was wrongfully
detained. The defendants offer expert opinion testimony that
Haywood is an alcoholic and that a common characteristic of
alcoholics is to deny that they have been drinking when they
plainly have. Is the evidence admissible?

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3. The Cross-examination of Character Witnesses

Although a character witness cannot testify about specific acts on
direct examination, the cross-examiner is allowed to question the
character witness about specific acts relevant to character, pursuant
to the last sentence of FRE 405(a). Assume, for example, that John
Smith is charged with murder and that as part of the defense Mary
Martin testifies, pursuant to FRE 404(a)(1), that John has a good
reputation in the community for peacefulness. The prosecutor, when
cross-examining Mary, can ask about various violent acts that John
supposedly committed.
a. The Relevance of the Specific Acts Inquiries

The permissible relevant purpose for asking specific acts questions

in the preceding example is not to prove John's character for
violence. Indeed, FRE 404(b) prohibits questions about specific acts
to prove John's character. Rather, the permissible relevant purpose of
the prosecutor's questions is to test Mary's credibility as a reputation
witness: If she denies having heard of the acts of violence, one can
infer that she does not have a very good sense of what John's
reputation is; and if she has heard of the acts, one may doubt the
truth of her testimony (or question her conception of what a reputation
for peacefulness means). United States v. Adair, 951 F.2d 316, 319
(11th Cir. 1992); United States v. Alvarez, 860 F.2d 801, 826-827 (7th
Cir. 1988).
Because the specific act questions are admissible only to impeach
the character witness and not to prove the character of the person
who is the subject of the testimony, the party calling the character
witness is entitled to a limiting instruction pursuant to FRE 105. For
example, in our John and Mary hypothetical, the judge might say,
“Ladies and gentlemen of the jury, I instruct you that the questions the
prosecutor asked Ms. Martin about various acts of violence allegedly
engaged in by Mr. Smith were asked for the sole purpose of
assessing Ms. Martin's knowledge of Mr. Smith's reputation. You must
not consider them as evidence of Mr. Smith's character.”
b. The Prejudicial Impact of Specific Acts Questions
 To the extent that jurors are unwilling or unable to follow a limiting
instruction regarding specific acts questions posed pursuant to FRE
405(a), there is a two-fold risk of prejudice. In the preceding
hypothetical, for example, the jurors may infer from the questions to
Mary about John's violent acts that John is a violent person and may
have acted in accordance with that violent character trait by
murdering the victim of the charged crime, as the prosecution has
alleged. This use of the evidence would violate FRE 404(b), thereby
raising the FRE 403 danger of unfair prejudice in the sense that the
jury may use the evidence in a logically relevant but legally
impermissible manner. In addition, the jurors may be willing to ignore
a reasonable doubt if they regard John as a bad, dangerous person.
This possibility raises the FRE 403 danger of unfair prejudice in the
sense that the jurors may base their decision on an emotional and
legally improper ground.

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The most prejudicial specific acts questions, as the preceding

hypothetical demonstrates, are those that relate directly to the
character trait about which the character witness testified. These
questions, however, are also likely to be the most probative for the
legitimate purpose of testing a character witness's knowledge of the
defendant's character for peacefulness. Since FRE 405(a) specifically
authorizes these questions, and since high prejudice is likely always
to be a concomitant of high probative value with FRE 405(a) specific
acts questions, courts regularly permit the cross-examiner to ask
character witnesses questions that are in fact extremely prejudicial.
c. The Relationship Between the Character Trait and the Specific Acts Inquiries
Specific act inquiries made pursuant to FRE 405(a) must be
“relevant” to the character trait about which the character witness
testified on direct examination. One aspect of this relevance
requirement is that the specific acts must relate to the character trait
in question. For example, in our hypothetical involving Mary's
testimony about John's reputation for peacefulness, it would be
appropriate to ask Mary about John's specific acts of violence but not
about acts of dishonesty. United States v. Westerbrook, 896 F.2d 330,
335 (8th Cir. 1990) (character witness testified as to defendant's
honesty; it is improper to ask character witness about defendant's
conviction for possessing controlled substance).
One might argue that, in a minimal FRE 401 sense, any bad act is
relevant to a bad character trait, and any good act is relevant to a
good character trait. Moreover, since the purpose of the inquiry is to
test the character witness's knowledge of the principal witness's
character, the key to relevance arguably should be the likely notoriety
of the act rather than its relationship to the character trait about which
the witness testified. Nonetheless, courts are likely to require that
FRE 405(a) specific acts questions to character witnesses relate to
the character trait about which the witness has testified—a result that
one can probably justify under FRE 403, if not FRE 401.
d. The Character Witness's Likely Knowledge of the Specific Act
A second restriction on the use of specific acts evidence to impeach
a character witness is also a matter of relevance—or at least
probative value for the purpose of FRE 403 balancing.
The questions should be limited to acts about which the witness is
likely to have known or to have heard. United States v. Alvarez, 860
F.2d 801, 827 (7th Cir. 1989). For example, if Mary on direct
examination testified that she had known John well for five years and
was familiar with his reputation during that time, it may not be
reasonable to expect that she would have heard about an isolated act
of violence that occurred 15 years ago. Even if she had heard about
the act, it may not be reasonable to expect a single 15-year-old act of
violence to affect her view of John's reputation for peacefulness
during the past five years. But see Alvarez, supra (trial court did not
abuse its discretion by permitting inquiry about specific act occurring
ten years before character witness giving reputation testimony knew
the defendant). Cf. Michelson v.

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 United States, 335 U.S. 469 (1948) (where two character witnesses
testified to knowing defendant 30 years and a third character witness
testified to knowing defendant half that long, not error to allow
questions about matters that occurred 20 and 27 years ago).
Assessing whether a character witness is likely to have heard of
any particular act will involve consideration of several factors. For
example, in our Mary and John hypothetical, how well and how long
has Mary known or known about John? Is John's act likely to have
been the subject of discussion because of the nature of the act? Is
John the kind of person whose activities are likely to be known to
people situated similarly to Mary? Questions that are only marginally
probative for legitimate impeachment purposes may be excluded
because of their low probative value and high degree of unfair
prejudice.
e. The Cross-examiner's Reasonable Belief That the Act Occurred
A third limitation on the use of specific acts questions (not
specifically mentioned in FRE 405(a)) relates to the cross-examiner's
belief that the specific acts occurred. If the prosecutor had no
knowledge about whether John, in our hypothetical, had committed
any violent acts, it should be permissible to ask Mary in a
nonsuggestive manner, “Do you know of any violent acts that John
has committed?” However, any but the most general inquiry about
specific acts is likely to suggest to the jury that the cross-examiner
believes that the act occurred. When such an implication inheres in
the question, the cross-examiner must have a reasonable basis for
believing that the act occurred. United States v. Adair, 951 F.2d 316,
319 (11th Cir. 1992); United States v Alvarez, supra.
Some courts have suggested that the better practice is to require
the cross-examiner to demonstrate the factual basis to the judge,
outside the presence of the jury, before asking the questions. United
States v. Reese, 568 F.2d 1246 (6th Cir. 1977). In Alvarez, supra, the
court followed this practice, and the prosecutor responded with an
affidavit from an FBI officer stating that defendant had confessed to
the act in question.
 In discussing this limitation on the cross-examination of character
witnesses, the Supreme Court in Michelson v. United States, supra,
noted that as a matter of logical relevance the requirement should be
that the cross-examiner of the reputation witness have a reasonable
belief that there were rumors about the act, regardless of whether it in
fact occurred. Nonetheless, the Court approved the existing rule
requiring the cross-examiner to demonstrate to the judge the
reasonable basis for believing that the act in fact occurred:
But before this relevant and proper inquiry [here, a question to the defendant's character
witness about the defendant's arrest] can be made, counsel must demonstrate privately
to the court an irrelevant and possibly unprovable fact—the reality of the arrest. From
this permissible inquiry about reports of arrest, the jury is pretty certain to infer that
defendant had in fact been arrested and to draw its own conclusions as to character
from that fact. The [requirement of a reasonable basis] thus limits legally relevant
inquiries to those based on legally irrelevant facts in order that the legally

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irrelevant conclusion which the jury probably will draw from the relevant questions will
not be based on unsupported or untrue innuendo. It illustrates Judge Hand's suggestion
that the system may work best when explained least. Yet, despite its theoretical
paradoxes and deficiencies, we approve the procedure as calculated in practice to hold
the inquiry within decent bounds. [335 U.S. at 481 n.18.]
Although the cross-examiner needs a reasonable belief for believing
the act occurred, the cross-examiner may not introduce evidence at
trial for the purpose of proving that the acts occurred, even if the
character witness denies them. See, e.g., United States v. Benedetto,
571 F.2d 1246, 1250 (2d Cir. 1978); see also United States v. Pruitt,
43 M.J. 864, 868 (U.S. A.F. Ct. Crim. App. 1996) (“it is a strange
cross-examination, because the cross-examiner is not allowed to
prove the existence of the acts about which he asks” quoting
Saltzburg et al., Military Rules of Evidence Manual (3d ed. 1991)).
f. Acts, Arrests, and Convictions
Like Michelson, decisions under the Federal Rules permit
prosecutors to ask defense character witnesses not only about
defendants' prior acts but also about their prior arrests. United States
v. Wellons, 32 F.3d 117 (4th Cir. 1994); United States v. Jordan, 722
F.2d 353, 358 (7th Cir. 1983). An arrest, however, is “conduct” by the
police, not the defendant.
As a matter of logical relevance, asking about the arrest rather than
the conduct leading to it is not inappropriate. The purpose of the
question is to test what the character witness knows or has heard
about the defendant, and in some instances there may have been as
much or more publicity about the arrest than the underlying acts. On
the other hand, if there is reason to believe that the defendant did not
engage in the conduct leading to the arrest, the question may be
particularly prejudicial. There is always the risk that the jury may use
a specific act question improperly to infer that the defendant has a
bad character. If the defendant has engaged in the conduct
suggested by the question, the jury at least gets an accurate
assessment of the kind of person the defendant is. Evidence of the
defendant's arrests creates not only this risk but also the risk that the
jury will regard the arrest, perhaps incorrectly, as evidence that the
defendant actually engaged in the illegal activity. Nonetheless, inquiry
about arrests may be appropriate. United States v. Grady, 665 F.2d
831, 834-835 (8th Cir. 1981) (permitting inquiry about arrests on
charges that were later dismissed).
Sometimes specific act questions to a defendant's character
witness refer to the defendant's prior convictions. United States v.
Collins, 779 F.2d 1520 (11th Cir. 1986). Like an arrest, a defendant's
prior conviction is logically relevant—without regard to the truth of the
underlying facts—to test the character witness's awareness of the
defendant's background or reputation. Permitting questions about
convictions, however, may be even more prejudicial than permitting
questions about arrests. While there may be little likelihood that the
defendant did not commit the acts leading to a conviction, the very
certainty of those facts, as validated by the conviction, may make it
especially difficult for the jury to disregard the improper inference that
the defendant is a bad person.

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g. The Form of the Questions on Cross-examination
 The common law, which in most jurisdictions permitted a criminal
defendant to use only reputation evidence when opening the door to
character, was quite exacting about the proper form of specific acts
questions on cross-examination. Since the direct examination
testimony was limited to what the witness had heard people say
about the defendant, asking on cross-examination whether the
witness knew about some bad act was objectionable. The proper
form for the specific acts questions on cross-examination was, “Have
you heard . . . ?” not “Did you know . . . ?” By contrast, if the
jurisdiction happened to permit opinion testimony on direct
examination, a witness offering an opinion about the defendant's
character presumably would be basing that opinion in whole or in part
on personal knowledge. Thus, it would be proper to ask on cross-
examination whether the opinion witness knew about specific acts.
If there were ever sound reasons for insisting on the proper form of
cross-examination questions about specific acts, those reasons have
been seriously eroded by the allowance of opinion as well as
reputation testimony on direct examination. The Advisory Committee
Note to FRE 405 asserts that the distinctions in the form of the cross-
examination questions “are of slight if any practical significance” and
that the second sentence of FRE 405(a) “eliminates them as a factor
in formulating questions.” United States v. Scholl, 166 F.3d 964, 974
(9th Cir. 1999) (no merit to argument that “Did you know . . . ?” rather
than “Have you heard . . . ?” was improper in cross-examining
character witness).

4. Limitations on the Use of Character Evidence in Practice

a. The Inherent Weakness of Good Character Evidence
The most common use of character evidence to show action in
accordance with character pursuant to FRE 404(a)(2) is a criminal
defendant's opening the door with evidence of the defendant's own
good character. Nonetheless, for reasons that are probably apparent,
the occasions on which criminal defendants elect to open the door to
the character evidence inquiry are relatively rare. In most cases,
reputation and opinion evidence about a defendant's good character
is not likely to be highly persuasive. The ban on using specific acts to
prove character means that the opinion or reputation witness cannot
provide persuasive or illustrative examples to support the opinion or
reputation testimony. As a result, that testimony will necessarily take
the form of (often bland) generalities. In sharp contrast, the cross-
examiner of such character witnesses can go into specific bad acts
under FRE 405(b). Depending on what the prior bad acts look like,
they are potentially very persuasive and effective in undermining the
positive character testimony.
Consider, then, who is likely to benefit from a rule that permits
criminal defendants to open the door to character evidence. Or to put
the issue somewhat differently, consider what kinds of people you
would like to be able to call as character witnesses if you were a
criminal defendant. To the extent that criminal defendants may benefit
from the use of character evidence, is the benefit likely to be derived
from the content

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of the character testimony or from the character (and/or reputation)

of the character witnesses? If the character of the character
witnesses is likely to make the biggest difference, is it desirable to
have a rule that, in effect, benefits people primarily because of whom
they know?
b. The Potential Unfairness of FRE 405
We have already noted that courts may exclude on FRE 401-403
grounds questions about acts that do not relate to the character trait
in issue and that are sufficiently remote from the time frame about
which the character witness testified. As we pointed out above,
however, FRE 403 is not often applied to exclude Rule 405 specific
acts questions. As a result, FRE 405 appears to give a significant
unfair advantage to the cross-examiner. For example, in our
preceding murder hypothetical, the defendant, John, is limited to the
use of relatively bland reputation or opinion evidence of his peaceful
character. The prosecutor, by contrast, can ask Mary, the character
witness, about all sorts of violent acts in which
John may have engaged. Granted, in theory the purpose of the
prosecutor's questions is not to prove the defendant's character but
only to impeach the credibility of the character witnesses. And
granted, the defendant is entitled to a limiting instruction from the
judge. How likely is it, though, that the jury will be able to confine its
consideration of the violent acts to the theoretically legitimate
impeachment purpose?
Is it sufficient to answer that the process is not unfair because the
defendant has the choice initially to decide whether to open the door
to character evidence? If you are defense counsel and if you feel
compelled to call character witnesses, what can you do to blunt the
effect of the prosecutor's cross-examination of your character
witnesses?

KEY POINTS
1. Whenever a character witness testifies in the form of reputation
or opinion about a person's character, FRE 405(a) permits the
opposing party to ask the witness on cross-examination about
specific acts committed by the person who is the subject of the
character testimony. Courts also permit questions about the
person's arrests or convictions.
2. The specific acts (or arrests or convictions) must relate to the
character trait about which the witness has testified.
3. The purpose of the specific acts question is to impeach the
testimony of the character witness, not to show the character
of the person about whom the witness has testified.

PROBLEMS
5.33. Dick Davis is charged with the murder of Ralph Green and
claims self-defense. After the prosecution has presented its
case, Davis offers the following evidence:

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(a) Witness1 to testify that he and Davis are Elks, that he

knows Davis well from weekly meetings, and that Davis
has an excellent reputation for honesty among the Elks.
(b) Witness2 to testify that Ralph Green has a reputation in
the community for violence.
(c) Witness3 to testify that two years ago Ralph Green was
convicted of aggravated assault, a felony.
(d) Witness4 to testify that she told the defendant of three
different times that she had seen the victim make
unprovoked attacks on other people.
In rebuttal, the prosecution offers the following evidence:
(e) Witness5 to testify that Ralph Green has a reputation in
the community for peacefulness.
(f) Witness6 to testify that Davis has a reputation in the
community for violence.
Which evidence is objectionable?
5.34. Return to Problem 3.3, United States v. Ray, at page 149. Is
the following evidence admissible? Might the answer change
depending on the order in which the evidence is offered?
(a) For the prosecution: Testimony from a partner in the
brokerage firm that handled Bernard Ray's stock
transactions: “Bernard Ray is an unusually shrewd and
well-informed investor. He personally directs each and
every trade of shares in his account.”
(b) For the defense: Testimony from June Jacobs,
Rundown's CFO: “Bernard Ray, although a great
salesman and inspirational leader to the company, is
extremely unsophisticated about finance and securities
markets. He delegated all financial matters to others in
 both the running of the company and in decisionmaking
regarding his personal investments.”
(c) For the defense: Five instances since the year 2013 in
which major trades of securities (other than Rundown
stock) were made at the discretion of one of Bernard
Ray's brokers.
(d) For the prosecution: Evidence that Ray has a PhD in
economics.

H. EVIDENCE OF A PERSON'S CHARACTER WHEN

CHARACTER IS AN ESSENTIAL ELEMENT OF A CLAIM OR
DEFENSE

Consider an action in which Martha sues George for libel because

George has circulated a leaflet claiming that Martha was dishonest.
An element of Martha's claim is that the allegedly libelous statement
is false. Since the statement that Martha is dishonest is a statement
about her character, Martha's actual character for dishonesty is an
essential element of her claim.
Nothing in FRE 404 or in any other Federal Rule specifically
prohibits or restricts the use of character evidence when character is
an essential element of a claim or a defense. FRE 405, however,
addresses the type of character evidence that one can use in this
type of situation.

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1. Explanation of FRE 405(b)

RULE 405. METHODS OF PROVING CHARACTER

(b) By Specific Instances of Conduct. 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.

Occasionally, the substantive law makes a person's character an

essential element of a claim or a defense, as the element of falsity (or
in some jurisdictions, the defense of truth) does in a defamation
action when an allegedly defamatory statement is a statement about
a person's character. For example, the fitness or character of a
person is a factor to consider in deciding whether to award child
custody to that person. A claim that a hospital was negligent in hiring
a careless physician makes the physician's carelessness—that is,
character for lack of care—an element that the plaintiff must establish
in order to recover. Similarly, a negligent entrustment claim that the
defendant was negligent in permitting a careless, unqualified
employee to drive the plaintiff's vehicle makes the employee's
character for lack of care an element that the plaintiff must prove in
order to prevail. In wrongful death cases, the plaintiff's damages may
depend in part on the character of the decedent, thereby making the
decedent's character an essential element of proof.
FRE 405(b), in conjunction with FRE 405(a), makes it clear that all
three forms of character evidence—reputation, opinion, and specific
acts—are potentially admissible when character is an essential
element of a claim or defense. For example, in our libel hypothetical
in which George wants to establish the truth of the statement that
Martha is a dishonest person, George could call witnesses to testify
(1) that Martha had a reputation for dishonesty in the community, (2)
that in the witnesses' opinion Martha was dishonest, and (3) that
Martha had engaged in specifically described dishonest acts.
The only limitation on the use of any of these types of evidence to
prove character when character is an essential element of a claim or
defense is FRE 403. In particular with respect to specific acts, courts
should balance the probative value of the acts in proving the
character trait at issue against (1) the risk that the evidence may
engender an emotional response from the jury, and (2) the time and
effort it would take to litigate the details of what the person may or
may not have done.
It is important to understand that FRE 405(b) is not an exception to
FRE 404(b)(1)., which prohibits using character evidence only to
prove conduct on a particular occasion. When character is an
essential element, however, it is not being offered to prove that
someone acted a certain way on a particular occasion. Proof of
character under 405(b) is an end in itself—it is proof of the essential
element or fact of consequence—rather than circumstantial proof of
some further conduct. Looked at another way, the use of character in
FRE 405(b) does not fall within the chain of inferences described in
Diagrams 5-1 and 5-2 at pages 265-66, supra, and does not fall
within 404(b)(1)'s prohibition at all. So even if 405(b) did not expressly
mention that specific acts are permitted—indeed, even if it had not
been written at all—it would still be the case that character as an
essential element would be subject to proof by any relevant

329

means. FRE 405(b) is thus another “reminder” to courts (like FRE

404(b)(2) and FRE 406) not to apply the character prohibitions
beyond their confined boundaries.

2. An Application: Reputation versus Character in Defamation

Cases
In our discussion of FRE 404(a), we noted that evidence of a person's
reputation is one way to prove a person's character. It is important to
keep in mind, particularly in the context of defamation actions, the
difference between “character” and “reputation.” Character is an
integral part of a person. Reputation, by contrast, is what people say
about a person. In defamation actions, a plaintiff's reputation—
regardless of whether it happens to coincide with the plaintiff's actual
character—is always relevant, because the substantive law makes
injury to reputation the basis for assessing damages. Consider, for
example, the previous hypothetical in which George circulated a
pamphlet stating that Martha was dishonest. Her damages, if she
prevails on the substantive claim, will be based on how much
George's statement damaged her reputation, not on what kind of a
person she is or was. Character becomes an essential element in a
defamation action, as we illustrated previously with the George and
Martha example, only if (1) the defendant claims that the allegedly
defamatory statement is true and (2) the statement is one about the
plaintiff's character.
 KEY POINTS
When character is an essential element of a claim or a defense, FRE 405(b) permits
proof of character with evidence of specific acts. In addition, it is permissible to prove
character with reputation or opinion evidence pursuant to FRE 405(a).

PROBLEMS
5.35. Paul Vincent has sued Office Barn for injuries he sustained
from being physically abused by store security guard Arnold
Stallone, who mistakenly believed Vincent had been
shoplifting. The claim is negligent supervision and/or hiring,
and the plaintiff must prove (1) that Stallone had a propensity
for violence and (2) that Office Barn knew or should have
known of the propensity and was therefore negligent in hiring
him as a security guard and in failing to supervise him
adequately. Vincent offers the following testimony. Is it
admissible?
(a) Witness1 to testify that he has known Stallone for ten
years, and in his opinion, Stallone is a violent person.
(b) Witness2 to testify that Stallone beat him up with no
provocation in a bar one year before Stallone began
working at Office Barn.
(c) Witness3 to testify that Stallone had been arrested four
times, and convicted twice, for assault prior to working for
Office Barn.

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Office Barn offers the following testimony. Is it admissible?

(d) Witness4 to testify that she has lived in the same
neighborhood as Stallone for five years and that he has a
reputation as a peaceful person.
5.36. Return to Problem 3.2 at page 148. Is the evidence of Driver's
speeding ticket likely to be admissible? For what purpose(s)?
5.37. Paul Plant, a candidate for public office, has sued Diane
Daniels for defamation for circulating a pamphlet stating that
Paul is a violent person with a bad temper and that on May 23
Paul stole a pistol from a local sporting goods store. Paul
testifies that both statements are untrue.
(a) Paul calls Edgar James, who offers to testify that since
the publication of the pamphlet Paul has had a reputation
in the community for violence and for dishonesty.
(b) Diane calls Zelda Young, who offers to testify that she
observed Paul engaged in a fistfight at a local tavern last
year.
(c) Diane calls Florence Newman, who offers to testify that
before the alleged defamation Paul had a reputation in
the community for being violent and for being dishonest.
(d) Diane calls Winston Hampton, who offers to testify that on
two occasions last year when he was with Paul, Paul
stole merchandise from a local department store.
Assuming that proper objections are made, which pieces of
evidence should be admissible?
5.38. The defendant is charged with the sale of heroin. He claims
that he was entrapped by the entreaties of the purchaser, a
supposed friend who was in fact an undercover narcotics
officer. According to the substantive law, the defense of
entrapment is not available if the defendant was predisposed
to commit the crime. To show predisposition the prosecution
offers evidence (a) that the defendant has the reputation in the
community as a drug dealer and (b) that on five specific
occasions the defendant has sold drugs to schoolchildren.
Should the defendant's objections to these pieces of evidence
be sustained?

I. EVIDENCE OF SEXUAL ASSAULT AND CHILD MOLESTATION

As part of the Violent Crime Control and Enforcement Act of 1994,
Congress enacted three rules, FRE 413-415, that relate to the
admissibility of sexual misconduct evidence in cases involving
charges of sexual assault and child molestation. The obvious purpose
of the rules is to make sexual misconduct evidence more freely
admissible. In our discussion of these rules, the terms sexual assault
and sexual misconduct include both sexual assault and child
molestation.
Evidence commentators have been particularly critical of FRE 413-
415, which were enacted directly by Congress and not subject to the
typical rule-making process. Charles Alan Wright & Kenneth W.
Graham Jr., Federal Practice and Procedure §5411-5417B (Supp.
2001); Edward J. Imwinkelried, A Small Contribution to the

331

Debate over the Proposed Legislation Abolishing the Character

Evidence Prohibition in Sex Offense Prosecutions, 44 Syracuse L.
Rev. 1125 (1993); Perspectives on the Proposed Federal Rules of
Evidence 413-415, 22 Ford. Urban L.J. 265 (1995).
Because most criminal sexual assault cases arise in state courts, a
significant potential impact of FRE 413-415 is as a model for state
evidence codes. The idea here was also to give states a “safe
harbor”: a dependable indication as to when prosecutors can
constitutionally use prior sexual misconduct evidence to prove guilt.
Presumptively, FRE 413-415 comport with Due Process. As stated by
a chief sponsor of FRE 413-414, Senator Robert Dole, “it's possible –
perhaps even likely – that the States may follow suit and amend their
own rules of evidence [accordingly].”140 Cong. Rec. S10,276 (daily
ed. Aug. 2, 1994). See also Alex Stein, Constitutional Evidence Law,
61 Vand. L. Rev. 65, 112-13 (2008). Approximately three-quarters of
the states have evidence rules based on the Federal Rules. States,
however, have not rushed to adopt these new rules. But see Ariz. R.
Evid. 404(c); Cal. Evid. Code §1108 (West 1995); Mo. Ann. Stat.
§566.025 (Vernon Supp. 2001).
1. FRE 413-415
RULE 413. SIMILAR CRIMES IN SEXUAL-ASSAULT CASES

(a) Permitted Uses. In a criminal case in which a defendant is accused of a sexual

assault, the court may admit evidence that the defendant committed any other sexual
assault. The evidence may be considered on any matter to which it is relevant.
(b) Disclosure to the Defendant. If the prosecutor intends to offer this evidence, the
prosecutor must disclose it to the defendant, including witnesses' statements or a
summary of the expected testimony. The prosecutor must do so at least 15 days before
trial or at a later time that the court allows for good cause.
(c) Effect on Other Rules. This rule does not limit the admission or consideration of
evidence under any other rule.
(d) Definition of “Sexual Assault.” In this rule and Rule 415, “sexual assault” means a
crime under federal law or under state law (as “state” is defined in 18 U.S.C. § 513)
involving: (1) any conduct prohibited by 18 U.S.C. chapter 109A; (2) contact, without
consent, between any part of the defendant's body—or an object—and another person's
genitals or anus; (3) contact, without consent, between the defendant's genitals or anus
and any part of another person's body; (4) deriving sexual pleasure or gratification from
inflicting death, bodily injury, or physical pain on another person; or (5) an attempt or
conspiracy to engage in conduct described in subparagraphs (1)-(4).

RULE 414. SIMILAR CRIMES IN CHILD MOLESTATION CASES

[This rule is similar in structure and content to FRE 413, but it applies to offenses of child
molestation rather than sexual assault. Section (d) defines “child” as “a person below the
age of fourteen” and removes the “without consent” phrase that occurs in subdivisions
(2) and (3) of FRE 413.]

332
RULE 415. SIMILAR ACTS IN CIVIL CASES CONCERNING SEXUAL ASSAULT OR
CHILD MOLESTATION
[This rule makes FRE 413 and FRE 414, including the notice requirement, applicable to
civil cases in which a claim is based on a party's alleged sexual assault or child
molestation.]

2. Explanation of FRE 413-415

a. The Relationship Between FRE 413-415 and Other Rules of Evidence

FRE 413-415 and FRE 404. The purpose of FRE 413-415 is to

liberalize the admissibility of character evidence in sexual assault and
child molestation cases by removing the two primary objections that
would otherwise be available under FRE 404. First, the prosecution is
permitted to open the door to use of propensity evidence in such
cases, a right otherwise reserved to criminal defendants under FRE
404(a). Second, the prosecution may offer past specific acts of sexual
assault or child molestation as evidence that the defendant
committed the current offense, notwithstanding the FRE 404(b) ban
on past specific acts to prove character to show action in accordance
on a particular occasion. United States v. Enjady, 134 F.3d 1427,
1431 (10th Cir. 1998) (Congress intended “to lower the obstacles to
admissibility of propensity evidence in a defined class of cases”). This
liberalization of the preexisting rules is consistent with the language
of FRE 413-415: sexual assault evidence “may be considered on any
matter to which it is relevant.” In addition, this understanding of FRE
413-415 is suggested by their legislative history (David J. Karp,
Evidence of Propensity and Probability in Sex Offense Cases and
Other Cases, 70 Chi.-Kent L. Rev. 15, 15 n.* (1995); Dale A. Nance,
Forward: Do We Really Want to Know the Defendant?, 70 Chi.-Kent
L. Rev., 3, 8 (1994)) and by the Justice Department, which lobbied for
the enactment of the rules (Karp, supra at 19).
Consider, for example, a case in which the defendant is charged
with attempted rape and the prosecution offers to prove that on two
occasions within the past five years the defendant had sexually
assaulted two women. Assume that the two women were unrelated to
the victim of the attempted rape and that there were no unusual
similar features among the three incidents. Are the two prior incidents
relevant to identify the defendant as the perpetrator of the crime
charged? Perhaps, but only because the evidence shows a general
tendency to engage in sexual assaults. That sounds like a description
of propensity evidence. If so, then the evidence, before the adoption
of FRE 413, would have been inadmissible pursuant to both FRE
404(a) and FRE 404(b)(1). FRE 413 removes the FRE 404
impediments to the admissibility of relevant sexual assault evidence.
FRE 413-415 and FRE 403. When FRE 413-415 were first enacted,
there was some concern that these rules made no explicit reference
to existing exclusionary rules and no indication of the extent to which
judges may have discretion to exclude

333

sexual misconduct evidence under FRE 403.3 However, every

appellate case dealing with this issue has concluded that sexual
misconduct evidence is subject to FRE 403 balancing. United States
v. Guardia, 135 F.2d 1326 (10th Cir. 1998). In fact, some federal court
decisions have suggested that if FRE 403 were not available to
exclude prejudicial evidence of sexual misconduct, admitting such
evidence would violate a defendant's due process right to a fair trial.
United States v. Castillo, 140 F.3d 874 (10th Cir. 1998) (FRE 414);
United States v. Enjady, 134 F.3d 1427 (10th Cir. 1998) (FRE 413);
United States v. Mound, 149 F.3d 799, 801 (8th Cir. 1998) (holding
that FRE 413 does not violate due process and that neither FRE 413
nor FRE 414 violates equal protection because trial judges' discretion
under FRE 403 to exclude excessively prejudicial evidence
adequately protects defendants against prejudice); see also Aviva
Orenstein, Deviance, Due Process, and the False Promise of Federal
Rule of Evidence 403, 90 Cornell L. Rev. 1487, 1517 (2005) (“it would
be foolish for those who are concerned about the reach of FRE 413
and 414 to count on a successful due process challenge”). Thus, in
the attempted rape hypothetical, the defendant could argue that the
prior sexual assaults should be excluded on FRE 403 grounds.
FRE 413-415 and Other Rules of Evidence. Can the FRE 413-415
language that prior sexual assault evidence is admissible be
construed as an exception to other exclusionary rules of evidence,
such as the hearsay rule? The argument strikes us as unsound.
“Congressional proponents of the legislation creating Rule 413
intended that 'the general standards of the rules of evidence will
continue to apply, including the restriction on hearsay evidence and
the court's authority under rule 403 to exclude evidence whose
probative value is substantially outweighed by its prejudicial effect.'” 2
Weinstein's Federal Evidence 413-411 (2d ed. 2005). In light of the
uniform view that FRE 403 can be invoked to exclude sexual assault
evidence, it seems likely that courts will conclude that other
established rules—for example, the hearsay rule—are also applicable
to evidence offered pursuant to FRE 413-415. Thus, in the attempted
rape hypothetical, it is unlikely that a court would permit the prior
sexual assaults to be proven by out-of-court hearsay statements that
would not otherwise be admissible. In cases involving the defendant
who was convicted for his prior act of sexual misconduct, the
prosecution would be able to introduce it into evidence under the
hearsay exception for judgments of conviction, FRE 803(22). When
the prosecution relies on uncharged sexual misconduct, it must prove
it to the jury by admissible evidence.
b. FRE 413-415 and Preliminary Factfinding
As is the case with specific-act evidence admissible pursuant to
FRE 404(b)(2), there is no requirement that the sexual assault
resulted in a conviction or even a criminal charge. If there is a
question about the nature of the defendant's involvement in an
alleged sexual assault, a court should resolve this issue in the same
manner that it

334

resolves the issue when there is a question about a defendant's

culpable involvement in other types of specific acts. Under the
Federal Rules, as a result of the Supreme Court's decision in
Huddleston, discussed at page 236, supra, there must be “evidence
sufficient to support a finding” (FRE 104(b)) that the defendant was
culpably involved in the act. United States v. Mann, 193 F.3d 1172
(10th Cir. 1999). For example, in the preceding rape hypothetical,
assume that the defendant offers the testimony of a friend who
provides the defendant with an alibi for the times of the noncharged
sexual assaults; assume further that the prosecution's proof of those
specific acts consists of the alleged victims' testimony and that there
is a history of personal animosity between the alleged victims and the
defendant. Even though the judge may disbelieve the alleged victims,
there is sufficient “evidence to support a finding” under FRE 104(b)
that the assaults occurred, because the judge is not permitted to take
credibility into account. Importantly, prior to admitting evidence of
uncharged sexual misconduct under FRE 413-414, the judge must
also “make a preliminary finding that a jury could reasonably find by a
preponderance of the evidence that the 'other act' occurred.” In
United States v. Enjady, 134 F.3d 1427, 1433 (10th Cir.1998).
The prosecution also can rely on prior sexual-misconduct evidence
even when the defendant was acquitted of the underlying
misconduct. Because acquittals can rest on a reasonable doubt and
thus do not constitute an affirmative finding of innocence, the
prosecution cannot be barred from adducing such evidence, subject
to the trial judge's discretion to exclude it pursuant to FRE 403. See
Dowling v. United States, 493 U.S. 342, 347-53 (1990) (holding that
admission of inculpatory similar-act evidence pursuant to FRE 404(b)
(2) does not violate the defendant's right to due process and
protection against double jeopardy even when the evidence relates to
accusations of which he was acquitted). Note, however, that Dowling
relates to similar-act evidence that falls under FRE 404(b)(2) and thus
arguably does not extend to general propensity evidence made
admissible by FRE 413 and 414. Cf. Hess v. State, 20 P.3d 1121,
1129 (Alaska 2001) (holding that although the prosecutor could rely
on the defendant's prior sexual assault despite the acquittal, “it was
error not to inform the jury of [the] acquittal”).
That the defendant was acquitted of the prior sexual misconduct
would often prevent the evidence from passing the Enjady multifactor
test, which requires the trial judge to consider “(1) how clearly the
prior act has been proved; (2) how probative the evidence is of the
material fact it is admitted to prove; (3) how seriously disputed the
material fact is; and (4) whether the government can avail itself of any
less prejudicial evidence.” Id. at 1433. See also United States v.
Benally, 500 F.3d 1085, 1090 (10th Cir. 2007) (approving district
court's application of the multifactor test to uncharged sexual
misconduct); United States v. Pascal, 2015 WL 2384347, (10th Cir.
2015).
 c. The Broad Definition of “Offense of Sexual Assault”
The definition of what constitutes an “offense of sexual assault” is
potentially very broad. Any acts having the characteristics described
in §§(d)(2) through (d)(5) are apparently included as long as some
state has enacted a criminal statute that prohibits that conduct.
Assume, for example, in our rape hypothetical that the prosecution

335

seeks to introduce evidence that the defendant has engaged in

consensual sexual activity that involves pain or injury. If any state
happens to encompass that sexual activity within its criminal law, the
prosecution's evidence arguably falls within the scope of the rule as
admissible even if the activity is not a federal crime or a crime in the
state where the defendant is being prosecuted.
d. The Meaning of “Without Consent” in FRE 413(d)(2) and (3)
Nothing in FRE 413 indicates whether the term consent in section
(d) means legal or actual consent. Consider a situation in which a
defendant is charged with the rape and the victim is an adult. Prior
sexual contact with other adults against their will (i.e., without actual
consent) is without question a type of sexual assault that falls within
the scope of FRE 413. What about prior sexual contact with a minor
that was with the minor's actual consent but not legal consent
because of the minor's age? Should this type of evidence be
admissible? Should it matter whether the defendant was aware of the
minor's age?

3. Elaboration of FRE 413-415

a. The Application of FRE 403 to Previously Inadmissible Character Evidence
The clear intent of FRE 413-415 is to make previously inadmissible
evidence admissible. How, if at all, is a judge to take into account this
mandate for more liberal admissibility in making the FRE 403
determination with respect to a particular piece of evidence?
 Perhaps not surprisingly, the cases take a variety of approaches to
this issue. At one extreme is Frank v. County of Hudson, 924 F. Supp.
620 (D.N.J. 1996), where the court stated, “Child sexual abuse
deservedly carries a unique stigma in our society; such highly
prejudicial evidence should therefore carry a very high degree of
probative value if it is to be admitted.” Id. at 626-627. The analysis in
Frank suggests that FRE 403 is likely to require exclusion of sexual
misconduct evidence not falling within one of the traditional
noncharacter purposes for admitting specific acts evidence. That may
or may not be desirable as a matter of policy. As a matter of law, it is
wrong because it makes FRE 413-415 a nullity.
At the other extreme, some courts have been willing to admit
evidence of very old, seemingly isolated, and sometimes dissimilar
instances of sexual misconduct. For example, in United States v.
Meacham, 115 F.3d 1488 (10th Cir. 1997), where the defendant was
charged with transporting a minor in interstate commerce with the
intent that she engage in sexual activity, the court held that it was
proper to admit two similar incidents of child molestation that
occurred over 30 years earlier. There was no evidence of more recent
incidents with third persons to indicate a continuing pattern of
conduct. See also United States v. Gabe, 237 F.3d 954 (8th Cir.
2001) (20-year-old incident of child molestation admissible); United
States v. Eagle, 137 F.3d 1011 (8th Cir. 1998) (upholding admission
of evidence of prior statutory rape of defendant's current common law
wife in prosecution for child molestation); United States v. Larson,

336

112 F.3d 600 (2d Cir. 1997) (16- to 20-year-old similar incidents of
child molestation admissible; 21- to 23-year-old similar incidents
excluded). For two cases in which the court of appeals first held that
the admission of specific acts evidence pursuant to FRE 404(b) was
prejudicial error and then later held that the same evidence was
properly admissible pursuant to FRE 414, see United States v.
Sumner, 204 F.3d 1182 (8th Cir. 2000), and United States v.
LeCompte, 131 F.3d 767 (8th Cir. 1997).
 Despite—or perhaps because of—the variety of approaches to FRE
403, the results in particular cases may sometimes have more to do
with the nature of the case than with what the court articulates about
the relationship between FRE 403 and FRE 413-415. Although in the
past courts have been divided on the admissibility of sexual assault
evidence in child molestation cases, David P. Bryden and Roger C.
Park, “Other Crimes” Evidence in Sex Offense Cases, 78 Minn. L.
Rev. 529, 531 n.12 (1992), the trend seems to be strongly in favor of
admitting such evidence under FRE 414. United States v. Gabe and
United States v. LeCompte, supra; Christina E. Wells & Erin Elliott
Motley, Reinforcing the Myth of the Crazed Rapist: A Feminist
Critique of Recent Rape Legislation, 81 B.U. L. Rev. 127, 177-178
(2001). In rape cases, on the other hand, courts traditionally appear
to have been less willing to admit prior sexual assault evidence in
acquaintance rape cases than in stranger rape cases, see Bryden &
Park, supra at 531 n.11, and this tendency may be continuing. Both in
acquaintance rape cases (FRE 413) and in sexual harassment
actions involving acquaintances (FRE 415), courts have seemed
particularly sensitive to unfair prejudice concerns and have not been
reluctant to exclude sexual misconduct evidence. United States v.
Acevedo, 117 F.3d 1429 (table of unpublished decisions), No. 96-
2149, 1997 U.S. App. LEXIS 17578 (10th Cir. July 14, 1997);
Cleveland v. KFC Natl. Mgmt. Co., 948 F. Supp. 62 (N.D. Ga. 1996).
For a discussion of these and other similar cases, see Wells &
Motley, supra; Jane Harris Aiken, Sexual Character Evidence in Civil
Actions: Refining the Propensity Rule, 1997 Wis. L. Rev. 1221.
The apparent willingness to exclude sexual assault evidence in
cases involving alleged sexual misconduct by an acquaintance may
be undermining one of the objectives of FRE 413 and FRE 415.
Bryden & Park, supra at 576-582, note that in acquaintance rape
cases in which defendants claim consent, there may be a relatively
greater need for sexual assault evidence. There is not as likely to be
physical evidence to establish that a rape occurred. Thus, the
defendant's prior sexual misconduct may be particularly important in
resolving the inevitable credibility conflict between the defendant and
alleged victim. Karen Andrews, The Admissibility of Other-Crimes
Evidence in Acquaintance-Rape Prosecutions, 17 S. Ill. U. L.J. 341
(1993); Sara Beale, Prior Similar Acts in Prosecutions for Rape and
Child Sex Abuse, 4 Crim. L.F. 307 (1993).
b. The Underlying Rationale for Rules 413-415
Regardless of how much or how little FRE 413-415 in practice have
liberalized the use of sexual misconduct evidence, their underlying
premises must be (1) that sexual misconduct evidence has relatively
high probative value to show action on a particular occasion and (2)
that the probative value of this type of evidence is not

337

likely to be outweighed by its prejudicial impact. Both of these

propositions may be true, but neither is free from doubt. Because of
the controversy surrounding FRE 413-415, we include references
here to some of the legal and social science literature that has
examined these two basic propositions.
Unfair Prejudice. The prejudicial impact of any specific acts
evidence—that is, the extent to which it may make the jury willing to
ignore a reasonable doubt and convict a bad, perhaps dangerous
person—is a function of how bad or dangerous the specific acts are
in the minds of the factfinder. We suspect many of you and many
jurors share the view that child molestation and sexual assault are
among the most serious and heinous crimes. To the extent that this
assessment is correct, the only justification for creating an exception
to the prohibition against the prosecution's opening the door to proof
of the defendant's character and doing so even with specific acts
evidence is the relatively high probative value of such evidence.
Probative Value and Recidivism. The already liberal admissibility
of sexual misconduct evidence in some jurisdictions suggests that at
least some courts regard sexual assault evidence as more probative
than other types of character evidence. Moreover, some—perhaps
many—of you may believe intuitively that prior sexual misconduct
evidence is particularly probative propensity evidence. The important
empirical question is whether this intuition is in fact true with respect
to sexual misconduct against third persons. Repeated abuse of the
same person—particularly a spouse or son or daughter—may be
quite common. Evidence of repeated sexual violence against the
same person, however, is likely to be considered noncharacter
evidence and, therefore, potentially admissible in any event pursuant
to FRE 404(b)(2).
Studies of recidivism indicate that the recidivism rate for sexual
offenders is not consistently higher than for other serious crime
offenders. Roger Park, however, has argued that the important
recidivism factor should be how often sex offenders commit other sex
crimes in comparison to how often other offenders commit crimes
similar to the ones of which they were convicted. Roger C. Park,
Character at the Crossroads, 49 Hast. L.J. 717, 756-754 (1998). By
this standard, the propensity of rapists to be recidivists is relatively
high. Id. at 762. Moreover, sex crimes are known to be
underreported, and recidivism statistics rely on arrest and conviction
rates. A. Nicholas Groth, Robert E. Longo & J. Bradley McFadin,
Undetected Recidivism among Rapists and Child Molesters, 28
Crime & Delinquency 450 (1982). Forty-five percent of all rapes in the
United States are never reported, and studies show that only 5 to 10
percent of acquaintance rape cases are reported. Karen Andrews,
The Admissibility of Other-Crimes Evidence in Acquaintance-Rape
Prosecutions, 17 S. Ill. U. L.J. 341, 342-343 (1993). Moreover, there
is evidence that police do not pursue an arrest if they do not believe
the victim. Gary D. LaFree, Rape and Criminal Justice: The Social
Construction of Sexual Assault 59-60, 66-69, 207-226 (1989); Julie
Horney & Cassia Spohn, Rape Law Reform and Instrumental Change
in Six Urban Jurisdictions, 25 Law & Soc'y Rev. 117 (1991). Cf.
Tamara Rice Lave & Aviva Orenstein, Empirical Fallacies of Evidence
Law: A Critical Look at the Admission of Prior Sex Crimes, 81 U. Cin.
L. Rev. 795 (2013) (criticizing psychological and empirical
justifications for

338
 FRE 413-415 for failing to account for important nuances in
interpreting recidivism in and under-reporting of sex crimes).
A Contextual Assessment of Probative Value. Consider the likely
impact of one's political and social values in assessing the probative
value of sexual assault evidence. If one regards sexual assaults as
largely analogous to all other violent crimes, then there is no reason
for character evidence rules to differ across those crimes. The
generally low probative value of character evidence to show action in
accordance with character and the potential for unfair prejudice to
criminal defendants would militate against using the action-in-
accordance with character inference in all cases.
On the other hand, if one considers sexual assaults as one
manifestation of a male-dominated social structure that tends to
discriminate against and oppress women—especially women of color
and poor women—in a variety of ways, it is reasonable to expect that
prosecutors, judges, and factfinders may approach sexual assault
cases with some of the biases that inhere in that societal oppression.
Special rules of admissibility to compensate for those biases may be
appropriate. Bryden and Park, supra at 583.
Legal literature suggests that this type of discriminatory bias does
exist. Empirical research based on Uniform Crime Reports and real
and mock jury trials reveals that men are more likely to rape women
of color and poor women, but are less likely to be convicted when
they do so. If the perpetrators are convicted, they serve less jail time
when these women are their victims. One explanation is that judges
and juries are more likely to see these women as sexually available
and therefore not capable of being assaulted. Gary D. LaFree, Rape
and Criminal Justice: The Social Construction of Sexual Assault 219-
220 (1989); G. Chezia Carraway, Violence Against Women of Color,
43 Stan. L. Rev. 1301 (1991); Kimberle Crenshaw, Mapping the
Margins: Intersectionality, Identity Politics, and Violence Against
Women of Color, 43 Stan. L. Rev. 1241 (1991); Dorothy E. Roberts,
Rape, Violence, and Women's Autonomy, 69 Chi.-Kent L. Rev. 359
(1993). In addition, traditional and still currently powerful stereotypes
blame the woman for acquaintance rape or even deny that the activity
is rape when the woman is seen as contributing to her predicament.
Lois Pineau, Date Rape: A Feminist Analysis, 8 Law and Philosophy
217 (1989). See also Andrews, supra; David P. Bryden & Sonja
Lengnick, Rape in the Criminal Justice System, 87 J. Crim. L. &
Criminology 1194 (1997); Karen M. Kramer, Note, Rule by Myth: The
Social and Legal Dynamics Governing Alcohol-Related Acquaintance
Rapes, 47 Stan. L. Rev. 115 (1994). These attitudes make jurors
willing to discount, if not disbelieve, victims' stories, and since there
often will be no evidence of physical injury in an acquaintance rape
situation, the victim's credibility will usually be critical to a successful
prosecution. To the extent that jurors share these stereotypical
attitudes, the likelihood of a conviction is small; and if juries are
unlikely to convict, prosecutors are unlikely to bring cases. Admitting
evidence of a defendant's prior sexual assaults may challenge the
jurors' stereotypes and in turn make prosecutors more willing to
pursue acquaintance rape cases. Allowing evidence of a defendant's
prior sexual assault record also may increase convictions in cases
where poor women and women of color are the victims.

339

Perhaps this bias and stereotyping explains the pre-FRE 413-415

state of the law. As we noted there, many courts have tended to be
relatively liberal in admitting evidence of a defendant's prior sexual
conduct in child molestation cases and in cases involving sexual
assaults by strangers. This same liberal view of admissibility,
however, has not extended to cases involving sexual assault by an
acquaintance. We can think of no basis for believing that a sexual
assault defendant's prior sexual conduct is likely to be less probative
in acquaintance assault situations than in stranger assault situations.
Some scholars have argued that FRE 413-415 merely reenforce
societal stereotypes of rapists as vicious predators and revive the
idea that women who make accusations of rape need to have a
corroborating witness (in these cases, women who have been prior
victims). Aviva Orenstein, No Bad Men!: A Feminist Analysis of
Character Evidence in Rape Trials, 49 Hastings L.J. 663 (1998);
Wells and Motley, supra. See also Katharine K. Baker, Once a
Rapist? Motivational Evidence and Relevancy in Rape Law, 110 Harv.
L. Rev. 563 (1997) (criticizing FRE 413 for creating a dangerous sex-
offender stereotype that increases the risk of wrongful conviction for
certain underprivileged defendants, while allowing date-rapists who
don't fit the stereotype to escape conviction). Do these analyses
change your views about the desirability of FRE 413-415?
c. The Significance of FRE 413-415 to Federal Litigation
The controversy surrounding the adoption of FRE 413-415 focused
almost exclusively on the role of FRE 413 and FRE 414 in criminal
prosecutions. As we noted at the outset of Section E, however,
sexual assault and child molestation are predominantly state crimes.
Thus, although most of the limited number of FRE 413-415 cases to
date are criminal cases, there will probably be relatively few
opportunities for federal courts to apply FRE 413 and FRE 414. By
contrast, FRE 415—the civil case counterpart to FRE 413 and FRE
414—may become the primary vehicle for giving content to the
federal sexual misconduct rules. 23 Wright and Graham, supra at
§5411B (Supp. 2001). For example, plaintiffs with sexual harassment
claims (including federal civil rights suits) based on unlawful sexual
touching may seek to introduce evidence of the defendants' prior
sexual misconduct pursuant to FRE 415. Cleveland v. KFC Natl.
Mgmt. Co., 948 F. Supp. 62 (N.D. Ga. 1996); Jane Harris Aiken,
Sexual Character Evidence in Civil Actions, 1997 Wis. L. Rev. 1221.

KEY POINTS
1. FRE 413-415 permit the use of specific acts to establish a
person's character or propensity for engaging in sexual assault
and prove action on a particular occasion.
2. Evidence potentially admissible under FRE 413-415 may be
excluded pursuant to FRE 403.
340

PROBLEMS
5.39. Defendant has been charged with “intentionally having sexual
contact with a minor with the intent to become sexually
aroused or gratified.” During its case in chief, the prosecution
introduced evidence that the defendant lured a three-year-old
girl into his home, fondled her, and gave her a piece of candy.
Defendant testified in his own behalf and denied the incident.
On rebuttal, the prosecution offers the testimony of a 12-year-
old girl that, a week before the alleged incident with the three-
year-old girl, the defendant offered the witness $20 if she
would come into his home and expose herself. Should the
evidence be admitted?
5.40. Alex Abrams is charged with attempted sexual assault and
battery. Brenda Bailey, the alleged victim, testifies that she was
at a bar where she met a man whom she identifies as the
defendant Abrams; that he followed her to her car as she left
the bar after midnight; that he grabbed her from behind, pinned
her to the ground, and attempted to assault her sexually; and
that her screams brought other patrons from the bar and her
assailant ran away. Abrams testifies that Bailey has
misidentified him; that it was a dark night; and that he had
been at the bar earlier but left before midnight and was at
home when the alleged attack occurred.
The prosecution seeks to admit the following evidence:
testimony from two women that seven years ago and five years
ago, respectively, they were sexually assaulted by Abrams
after he followed them out of a bar. Should this evidence be
admitted prior to the adoption of FRE 413-415? After their
adoption?
Would the result be different if the sexual assaults were more
recent? If they had occurred during the daytime at the women's
homes?
5.41. Carl Corbin is charged with rape. Doris Davis, the alleged
victim, testifies that she met Corbin in a bar; that they talked for
a while and she agreed to accompany him to another bar for
drinks and dancing; that after spending a few hours at this
second bar she accepted his offer of a ride back to her car;
that along the way he stopped at a park and said he wanted to
have sex with her; that she said no and told him she was afraid
she would get pregnant; and that he forcibly raped her. Corbin
testifies that Davis consented to have sexual relations with him
after a fun evening.
The prosecution seeks to admit the following evidence:
testimony from a woman that she had dated Corbin for a brief
period of time three years ago; that he wanted to have sexual
relations with her; that she told him no but he then forced her
to have sex; and that she never reported the incident to
anyone. Should this evidence be admitted prior to the adoption
of FRE 413-415? After their adoption?
Would the result be different if the woman would testify that
she met Corbin in a bar; that after a few drinks and dancing he
offered to drive her home; that he stopped at the same park
where he had stopped with Davis; and that he forced her have
sex after she said no?
5.42. Agatha Lewis has brought an action for damages against
Brian Bellows, who, she alleges, transmitted AIDS to her.
Agatha establishes with blood test evidence that she did not
have the AIDS virus 18 months ago, that she now has the
virus, and

341

that Brian has the virus. Agatha testifies that she is not an
intravenous drug user, that she has not had a blood
transfusion, and that the only person with whom she has had
intimate sexual contact subsequent to the negative AIDS test
was Brian. She further testifies that she met Brian at a party;
that they went to his apartment after the party and had sexual
 intercourse; that she had sexual intercourse with him two or
three additional times in the next two weeks; and that she had
no further contact with him. In his defense, Brian admits that he
met Agatha at a party. He claims that he gave her a ride to her
apartment after the party and that he did not on that night or on
any other occasion have sexual intercourse with Agatha. In
rebuttal, Agatha offers the testimony of three women that
during the past year they met Brian at parties and had brief
sexual affairs with him. Should this evidence be admitted prior
to the adoption of FRE 415? After its adoption?
5.43. Steve Sanders, a 21-year-old college junior, is charged with
the rape of Betty Brown, a classmate. According to the
prosecution, the rape occurred during their first (and only) date.
Sanders admits having had intercourse but claims that Brown
consented. The prosecution offers the following pieces of
evidence:
(a) the testimony of Ann Williams, a 16-year-old high school
student, that she recently had consensual sexual
intercourse with Sanders;
(b) the testimony of Ellie Wilson, another student, that on her
first date with Sanders he was extremely aggressive and
ripped some of her clothing before she could stop him;
(c) a wallet belonging to Mary Miller that was seized from
Sanders's room and Mary Miller's testimony that one
month ago a masked man raped her in the laundry room
of the dormitory and stole her wallet (Sanders claims that
he found the wallet on a street corner the night before it
was seized from his room, and that he was studying in the
library at the time of the rape).
How should the court rule prior to the adoption of FRE 413-
415? After their adoption?

J. EVIDENCE OF AN ALLEGED VICTIM'S PAST SEXUAL

BEHAVIOR OR DISPOSITION IN SEX OFFENSE CASES
Until fairly recently, many courts were quite liberal in permitting rape
and other sex crime defendants to introduce evidence of the alleged
victim's sexual history when the defendant claimed that the victim had
consented. The most common form of prior sexual history evidence
was reputation testimony, but a number of jurisdictions also permitted
specific acts evidence. Starting in the 1970s, states began to enact
“rape shield” legislation to curb the admissibility of some of this
evidence. FRE 412, subsequently amended in 1994, was also the
product of specific legislative action. Congress added FRE 412 to the
Federal Rules in 1978. For a discussion of the background and
legislative history of Rule 412, see 23 Charles Alan Wright & Kenneth
W. Graham Jr., Federal Practice and Procedure §5381 at 483-491
(1980), §5381.1 at 190-199 (Supp. 2001).

1. FRE 412

342
RULE 412. SEX-OFFENSE CASES: THE VICTIM'S SEXUAL BEHAVIOR OR
PREDISPOSITION

(a) Prohibited Uses. The following evidence is not admissible in a civil or criminal
proceeding involving alleged sexual misconduct: (1) evidence offered to prove that a
victim engaged in other sexual behavior; or (2) evidence offered to prove a victim's
sexual predisposition.
(b) Exceptions.
(1) Criminal Cases. The court may admit the following evidence in a criminal case:
(A) evidence of specific instances of a victim's sexual behavior, if offered to prove
that someone other than the defendant was the source of semen, injury, or other
physical evidence;
(B) evidence of specific instances of a victim's sexual behavior with respect to the
person accused of the sexual misconduct, if offered by the defendant to prove
consent or if offered by the prosecutor; and
(C) evidence whose exclusion would violate the defendant's constitutional rights.
(2) Civil Cases. In a civil case, the court may admit evidence offered to prove a
victim's sexual behavior or sexual predisposition if its probative value substantially
outweighs the danger of harm to any victim and of unfair prejudice to any party. The
court may admit evidence of a victim's reputation only if the victim has placed it in
controversy.
(c) Procedure to Determine Admissibility.
(1) Motion. If a party intends to offer evidence under Rule 412(b), the party must:
 (A) file a motion that specifically describes the evidence and states the purpose
for which it is to be offered;
(B) do so at least 14 days before trial unless the court, for good cause, sets a
different time;
(C) serve the motion on all parties; and
(D) notify the victim or, when appropriate, the victim's guardian or representative.
(2) Hearing. Before admitting evidence under this rule, the court must conduct an in
camera hearing and give the victim and parties a right to attend and be heard. Unless
the court orders otherwise, the motion, related materials, and the record of the hearing
must be and remain sealed.
(d) Definition of “Victim.” In this rule, “victim” includes an alleged victim.

2. Explanation of FRE 412

FRE 412 has a twofold rationale. First, the combination of relatively
low probative value and significant countervailing FRE 403 concerns
warrants a flat rule of exclusion rather than individual case-by-case
balancing to determine admissibility. Second, independent of FRE
403 concerns, substantive policy considerations justify

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the exclusion of relevant evidence. Thus, FRE 412 excludes some

evidence of an alleged sexual assault victim's sexual conduct in order
to protect the alleged victim from harassment and embarrassment
and to avoid deterring such a person from coming forward to
complain and testify about the sexual assault.
a. Relevancy of an Alleged Victim's Sexual Behavior or Disposition
Some people adamantly maintain that evidence of a sexual assault
victim's prior sexual history is irrelevant to the issue of consent. FRE
412 (b)(1)(B), however, explicitly permits evidence of sexual behavior
between the defendant and the alleged victim to prove the victim's
consent. Moreover, there is no explicit limitation on the use of prior
sexual conduct to prove consent in civil cases. Is such conduct
relevant under the minimal threshold of FRE 401? Consider an
alleged victim whose only prior consensual intercourse was in the
context of a marriage relationship. What generalizations can you
frame that say something about the likelihood that such a victim
consented or did not consent to sexual intercourse with a stranger?
With an acquaintance? If the defendant's defense of consent is based
on evidence that is arguably ambiguous as to whether the victim
consented, is evidence of the alleged victim's prior consensual sexual
conduct with third persons probative of consent? Again, can you think
of a generalization that permits one to make the inference from the
evidentiary fact (prior sexual conduct) to the fact of consequence
(consent)? We suggest that in both examples the relevance of the
evidence depends on whether one can frame a valid generalization
about the alleged victim's sexual conduct.
b. The Underlying Propensity Theory
The concept of relevance with which we have been dealing
explicitly and implicitly throughout the course rests on the premise
that individuals have propensities to behave in particular ways and
that we can arrive at reasonable conclusions about historical facts by
taking these propensities into account. For example, at the most
basic level, when a person says that event X occurred, we regard the
person's statement as relevant, at least in a minimal FRE 401 sense,
to establish that X occurred because we assume, on the basis of our
common experience, that individuals generally have a propensity to
tell the truth. Similarly, a premise underlying the character evidence
rules is that individuals have propensities to behave in characteristic
ways and that if we know something about the individuals' conduct on
some occasions, we can make reasonable—although sometimes
weak—inferences about their conduct on other occasions. Given this
pervasive reliance on the premise that we can infer something about
an individual's conduct on some occasions if we know how the
individual behaved on other occasions, and given the very low FRE
401 threshold requirement for “relevance,” courts have not been
willing to reject all evidence of an alleged victim's prior sexual
behavior as irrelevant to the issue of consent.
Indeed, before rape shield legislation such as FRE 412, the rape
defendant's right to introduce reputation evidence about the victim's
prior sexual conduct was regarded as an application of the general
principle, codified in FRE 404(a)(2), that a defendant
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can introduce reputation (and under FRE 405(a), opinion) testimony

to prove the victim's character trait to show action in conformity with
that trait. In other words, just as a homicide defendant claiming self-
defense could introduce evidence of the victim's reputation for
violence to suggest that the victim was the first aggressor, it was
regarded as appropriate for a rape defendant claiming consent to
introduce evidence of the victim's reputation for promiscuity or lack of
chastity to suggest that the victim consented to the intercourse.
The theoretical justification for introducing evidence of specific
instances of the victim's consensual sexual intercourse was more
varied. Some courts claimed that the evidence was admissible to
show the victim's “intent.” Other courts admitted the evidence to
“impeach” the credibility of the rape victim without bothering to
explain what relationship existed between consensual sexual
intercourse and truth-telling. Still other courts frankly admitted that the
specific-act evidence was being used in a propensity sense or that it
was being used to show character. These latter courts took the
position that there was an exception to the propensity-character rule
for evidence of prior sexual conduct, an exception that one might
analogize to the use of a criminal defendant's prior sexual misconduct
in sexual assault prosecutions.
c. The Scope of FRE 412
FRE 412 excludes most evidence of an alleged victim's prior sexual
behavior and sexual predisposition, even when it is relevant under
the above-described propensity theory. We will deal with the reasons
for this rejection of past practice in the next section. Here we want to
focus on the actual application of FRE 412.
The Meaning of “Other Sexual Behavior” and “Sexual
Predisposition.” The exclusionary provisions in FRE 412(a) come
into play only with respect to evidence of “other sexual behavior” and
“sexual predisposition.” The rule does not define either of these
phrases, but the Advisory Committee's Note provides some
examples. Sexual behavior “connotes all activities that involve actual
physical conduct . . . or that imply sexual intercourse or conduct”—for
example, “use of contraceptives,” “birth of an illegitimate child,” or
“venereal disease.” It also includes “activities of the mind, such as
fantasies or dreams.” Sexual predisposition includes “evidence that
does not directly refer to sexual activities or thoughts but that the
proponent believes may have a sexual connotation for the
factfinder”—for example, evidence “relating to the alleged victim's
mode of dress, speech, or lifestyle. FRE 412(a) applies to all general
sexual propensities of the alleged victim, and operates similarly to
FRE 404(a)(1), which provides that “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 Applicability of FRE 412 When the Issue Is the Victim's
Behavior on a Particular Occasion. If a defendant offers evidence
for the purpose of showing the alleged victim's sexual conduct on a
particular occasion, the theory of relevance presumably will be that
the evidence shows something about the sexual predisposition

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(i.e., propensity) of the individual and that from this predisposition

one can infer how the victim behaved on a particular occasion. Thus,
all evidence (whether in the form of reputation, opinion, or specific
act) offered to show conduct on a particular occasion would be
evidence of “sexual predisposition.” If evidence of dressing in a
provocative manner, telling lewd jokes, or soliciting sex were offered
for this purpose, it would not be necessary to determine whether the
evidence constituted “other sexual behavior.” Such evidence,
however, to the extent it purports to show the alleged victim's sexual
conduct on a particular occasion, either falls into the excluded “sexual
predisposition” category or is altogether irrelevant. Such evidence,
when offered by a criminal defendant, ostensibly falls within the terms
of FRE 404(a)(2)—opening the door to a “pertinent” character trait of
the victim. However, FRE 404(a)(2)(B) makes clear that character
evidence relating to the victim's sexual predisposition is governed by
the stringent “rape shield” limitations of FRE 412.
 The Applicability of FRE 412 in Other Contexts. The definitions
of “other sexual behavior” and “sexual predisposition” become
important when evidence of an alleged victim's prior activity is offered
for some purpose other than to show sexual conduct on a particular
occasion. Assume, for example, that a defendant is charged with
rape and claims that the alleged victim has falsely accused him. To
suggest a motive for the false accusation the defendant offers to
testify that he had threatened to reveal to the alleged victim's spouse
that she had a secret job as a nude dancer and had solicited sex from
him.
Do these activities constitute “sexual behavior”? Perhaps the
answer is yes with respect to soliciting sex, for the Advisory
Committee's Note indicates that sexual behavior includes “activities of
the mind, such as fantasies or dreams.” Nude dancing, on the other
hand, seems to fall more readily into the Advisory Committee's
description of “sexual predisposition”—activity that “may have a
sexual connotation for the factfinder . . . [such as] mode of dress . . .
or lifestyle.” It is not clear, however, that evidence is governed by FRE
412 merely because it may suggest a sexual predisposition to the
factfinder. If the activity in question is not “sexual behavior,” it falls
within the scope of FRE 412 only if it is “offered to prove any alleged
victim's sexual predisposition.” Does the language “To prove . . .
sexual predisposition” apply only to evidence offered to show action
in accordance with that predisposition, or does it apply to evidence
that may suggest to the factfinder a sexual predisposition but that is
offered for some other purpose? In our hypothetical, the defendant
would argue that the evidence of nude dancing (and soliciting sex, if
that activity is not “sexual behavior”) is being offered to prove the
alleged victim's motive for lying, not her sexual predisposition.
If nude dancing and soliciting sex fall within the FRE 412(a) general
exclusionary rule for “other sexual behavior” or “sexual
predisposition,” then the evidence would be inadmissible unless it
falls within one of the FRE 412(b) exceptions (the defendant would
argue that the court must admit the evidence pursuant to FRE 412(b)
(C) because the Constitution's Due Process and Compulsory Process
Clauses entitle him to use it in his defense). If these activities do not
fall within either of the prohibited categories of evidence, the only
limits on the admissibility of the evidence are FRE 401-403.

346

Hostile Work Environment Cases. There is at least one line of

cases holding that FRE 412 applies to evidence suggesting a sexual
predisposition even when the evidence is offered to prove something
other than the alleged victim's action in accordance with the
predisposition. In sex discrimination suits based on a hostile work
environment, defendants frequently contend that the plaintiffs
welcomed or created the environment that they claim to be
discriminatory. To establish this defense, defendants offered evidence
showing that the plaintiffs have behaved provocatively, used vulgar,
sex-charged language, and engaged in other behavior that is similar
to the activity about which they are complaining. Courts have held
that FRE 412 applies to this evidence. Socks-Brunot v. Hirschvogel
Inc., 184 F.R.D. 113 (S.D. Ohio 1999); Sheffield v. Hilltop Sand &
Gravel Co., 895 F. Supp. 105, 108-109 (E.D. Va. 1995). According to
Socks-Brunot:
Evidence tending to prove both prior sexual conduct of the plaintiff and workplace
conversations of the plaintiff is covered by Rule 412. Generally, evidence admissible for
one purpose but inadmissible for another may be heard by a jury, pursuant to Federal
Rule of Evidence 105. The general rule is inapplicable with regard to evidence covered
by Rule 412. [184 F.R.D. at 119.]
But cf. Morales-Evans v. Administrative Office of the Courts, 102 F.
Supp. 2d 577, 581 n.7 (D.N.J. 2000) (evidence of prior sexual
relationship with supervisor considered only “to provide context” for
supervisor's allegedly inappropriate remark; “not . . . considered as
evidence of sexual predisposition or behavior . . .; therefore this
consideration does not run afoul of Rule 412.”).
The Admissibility of “Other Sexual Behavior” and “Sexual
Predisposition” Evidence in Civil Cases. In hostile work
environment and other civil cases, the balancing test in FRE 412(b)
(2) governs admissibility of evidence of an alleged victim's sexual
behavior and predisposition. This test differs from the FRE 403
balancing test in two respects. First, it is a reverse FRE 403 test. In
contrast to FRE 403, which favors admissibility, FRE 412(b)(2), by
requiring that the probative value must substantially outweigh
countervailing factors, favors exclusion. Wolak v. Spucci, 217 F.3d
157, 163 (2d Cir. 2000).
Second, as per the Advisory Committee Note to FRE 403, one
should interpret “unfair prejudice” in FRE 403 as referring to the
evidence's “undue tendency to suggest decision on an improper
basis, commonly, though not necessarily, an emotional one.” By
contrast, FRE 412(b)(2) specifically refers to prejudice against a party
and harm to the alleged victim. Consider, for example, an alleged
rape victim's civil suit against a defendant who claims that the plaintiff
consented to the intercourse. If the defendant offers evidence of prior
consensual intercourse with the plaintiff, the court must weigh the
probative value of this evidence against both the risk that the
evidence may make the jury improperly discount the plaintiff's
credibility as a witness (FRE 403-type prejudice) and the harm to the
victim (such as embarrassment and invasion of privacy) from the
presentation of evidence about the victim's prior sexual activity. The
court must also consider the risk that the jury might discount the
plaintiff's moral worth as a person and effectively modify the burden
of proof by making itself more willing than it should be to err against
her interest in the face of uncertainty.

347

The Admissibility of “Other Sexual Behavior” and “Sexual

Predisposition” Evidence in Criminal Cases. For criminal cases,
FRE 412(b)(1) delineates only three exceptions to the general rule of
exclusion. The first two exceptions are quite narrow. Both refer to
case-specific evidence of (a) the victim's sexual behavior with third
persons to suggest that they may be the source of semen or injury
and (b) the victim's sexual behavior with the defendant to suggest
consent. As a result, these exceptions may not encompass all of the
situations in which, in fairness, a court should permit a criminal
defendant to introduce evidence of an alleged victim's sexual
behavior or predisposition. The rule acknowledges this possibility by
providing in the third exception for admission in those cases in which
“exclusion . . . would violate the constitutional rights of the defendant.”
This language is a reference (1) to the due process and compulsory
process doctrines that embody criminal defendants' constitutional
right to present a defense and (2) to the Sixth Amendment
Confrontation Clause right to confront and cross-examine witnesses.
While these rights do not allow criminal defendants to present
evidence and cross-examine witnesses in complete disregard of the
rules of evidence, the Supreme Court has held on numerous
occasions that rules of evidence can restrict these rights only for
compelling reasons. See Alex Stein, Inefficient Evidence, 66 Ala. L.
Rev. 423, 460-69 (2014). There was, of course, no need to expressly
state this third exception in the rule. The Constitution is the supreme
law of the land. When the defendant has a constitutional right to
introduce the evidence, this right trumps any exclusionary rule.
The “constitutionally required” exception to the Kentucky version of
FRE 412(a) was at work in the Supreme Court's decision Olden v.
Kentucky, 488 U.S. 227 (1988). The defendant responded to the
complainant's kidnapping and rape accusations by introducing
evidence that he and the complainant had consensual sex, after
which he and his friend drove the complainant—at her request—to
the house belonging to a person named Russell, with whom she had
an extramarital relationship. This evidence was supposed to impeach
the complainant's testimony by showing that she feared jeopardizing
her relationship with Russell and thus had a motive to fabricate the
rape story. On both trial and appellate levels, Kentucky courts held
that the state's “rape shield” statute does not permit the defendant to
use this evidence, but the Supreme Court disagreed. The Court ruled
that the suppression of the defendant's exculpatory evidence violated
his Sixth Amendment right “to be confronted with the witnesses
against him.” Id. at 231. Importantly, the defendant's evidence
implicated, but did not rely on, the alleged victim's general
promiscuity. Rather, it relied on her case-specific motive to lie. This
characteristic puts the defendant's evidence on a par with evidence
admissible under the first two exceptions to the “rape shield,” FRE
412(b)(1)(A)&(B).
When the defendant's evidence falls within one of those exceptions,
it is not automatically admissible. Rather, the evidence must be
“otherwise admissible under these rules.” Consider, for example, a
rape case in which the defendant claims that the alleged victim
consented to the sexual intercourse. To prove consent, the defendant
offers to testify that on one occasion three years ago he had
consensual sex with the victim. This evidence falls within the FRE
412(b)(1)(B) exception, but the court retains discretion to exclude the
evidence on FRE 403 grounds.

348

The Notice Requirement. The notice and hearing requirement in

FRE 412(c) is more demanding than any other notice requirement in
the Federal Rules. Cf. FRE 404(b), FRE 413-415. Any notice
requirement makes the decisionmaking process more rigorous
because it gives the parties time to prepare their arguments. A
stringent notice requirement may have the additional impact of
deterring litigants from pressing weak claims.

3. Elaboration of FRE 412

a. The Rationale for a Rule Excluding Evidence of Prior Sexual Behavior and Sexual
Predisposition
There are substantial reasons to be concerned about the liberal
admissibility of an alleged sexual assault victim's sexual history. The
ability to introduce evidence of the victim's sexual history gives the
defendant the opportunity to try to make the victim and the victim's
character the focal point of the litigation. The prospect of a degrading
and humiliating examination by defense counsel may discourage
many victims from cooperating with prosecutors, or even reporting
sexual assaults in the first place. One cannot, however, attribute the
humiliation and degradation of rape victims solely—or perhaps even
primarily—to liberal rules of admissibility for prior sexual conduct.
Disbelief of, disrespect for, and insensitivity toward rape victims have
existed throughout the criminal justice system. Susan Brownmiller,
Against Our Will: Men, Women and Rape 408-420 (1976); Colleen A.
Ward, Attitudes Toward Rape: Feminist and Social Psychological
Perspectives (1995); Morrison Torrey, When Will We Be Believed?
Rape Myths and the Idea of a Fair Trial in Rape Prosecutions, 24
U.C. Davis L. Rev. 1013 (1991).
In cases that are tried, there may be disputes about whether the
victim in fact engaged in any of the conduct that the defendant wishes
to attribute to the victim. In addition, the jury might overestimate the
probative value of the prior sexual history evidence on the question of
consent or be prejudiced against the victim because of the sexual
conduct. There is evidence that juries may too readily acquit
defendants because they disbelieve a female victim or believe that
“she got what she deserved.” Harry Kalven & Hans Zeisel, The
American Jury 249-54 (1966); David P. Bryden & Sonja Lengnick,
Rape in the Criminal Justice System, 87 J. Crim. L. and Criminology
1194 (1997); Aviva Orenstein, No Bad Men!: A Feminist Analysis of
Character Evidence in Rape Trials, 49 Hastings L.J. 663 (1998);
Beverly J. Ross, Does Diversity in Legal Scholarship Make a
Difference?: A Look at the Laws of Rape, 100 Dick. L. Rev. 795
(1966); Torrey, supra. Because of widespread racism, class biases
and sexual stereotypes, this phenomenon is particularly likely to
occur when the victim is a woman of color or poor, or when she was
acquainted with the man who raped her. Gary D. LaFree, Rape and
Criminal Justice: The Social Construction of Sexual Assault 219-220;
G. Chezia Carraway, Violence Against Women of Color, 43 Stan. L.
Rev. 1301 (1991); Kimberle Crenshaw, Mapping the Margins:
Intersectionality, Identity Politics, and Violence Against Women of
Color, 43 Stan. L. Rev. 1241 (1993); Lois Pineau, Date Rape: A
Feminist Analysis, 8 Law & Philosophy 217 (1989);

349

Dorothy E. Roberts, Rape, Violence, and Women's Autonomy, 69

Chi.-Kent L. Rev. 359 (1993).
 Finally, there is the problem that prior sexual history will frequently
be of no more than marginal relevance to the question of whether the
victim consented on the occasion in question. Indeed, as we noted
earlier, one of the principal reasons that the rules of evidence
severely restrict the use of character to show action in conformity is
that the strength of the inference from character to action on a
particular occasion is almost invariably weak. We can think of no
reason to believe that the inference from prior consensual intercourse
—especially when the activity is with third persons—to consensual
sex with the defendant is valid.
In theory, FRE 403 and its common law counterparts might have
been adequate devices for taking into account these concerns that
warrant caution in the use of evidence of a rape victim's prior sexual
conduct. However, the policy of protecting a rape victim from
humiliation is not, strictly speaking, the sort of concern that readily fits
among the FRE 403 dangers. Moreover, in practice, many individuals
perceived—correctly, we believe—that courts were often too willing to
admit marginally probative, highly prejudicial evidence of the victim's
prior sexual activity in rape and other sexual assault prosecutions.
The response to this perception has been the adoption of “rape
shield” rules or statutes such as FRE 412 that specifically address
and limit the situations in which evidence of a victim's prior sexual
conduct may be admitted. Rape victims need an assurance against
bias and mistreatment by the justice system, and FRE 412 aims at
satisfying that need as well.
Because “rape shield” provisions are now common, it is difficult to
assess how liberal judges would have been in admitting evidence of
victims' past sexual behavior and sexual predisposition in the
absence of such rules. Some might argue that recent increased
public awareness and concern with sexual assault crimes
(exemplified by the enactment of FRE 413-415) make “rape shield”
provisions less necessary today than when they were first enacted.
Others firmly believe, as we suggested earlier, that social attitudes
that stereotype women as sexual objects and as provoking sexual
contact will somehow find their way into the jury box. From this
perspective, “rape shield” provisions continue to be vitally important
both as devices for contributing to accurate factfinding and as
affirmations of the autonomy of women.
b. Two Approaches to the Exclusion of Other Sexual Behavior and Sexual
Predisposition Evidence
FRE 412 presents an interesting example of two quite different
approaches to the problem of regulating the admissibility of sexual
behavior and sexual predisposition evidence. In civil cases, where
there is no established doctrine of constitutionally required evidence,
Congress chose to rely exclusively on a balancing test that favors
exclusion. By contrast, in criminal cases, where the constitutionally
required evidence doctrine provides what is in effect a safety valve for
an overly strict exclusionary rule, Congress created only two specific,
very narrow, exceptions to a general rule of exclusion.
Do you think it is desirable to have an evidentiary rule that tends to
force courts to resolve issues of admissibility in terms of constitutional
law? In any event, are the

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criteria for determining whether evidence is constitutionally required

likely to be applied consistently from case to case?
Particularly in light of your analysis and discussion of the following
problems, consider whether it would be preferable to have a general
balancing test for both criminal and civil cases. If your answer is no,
are there any additional exceptions that you would add to FRE 412(b)
(2)?
c. Rape Shield Rules and the Defendant's Right to Testify
When a criminal defendant seeks to testify about a rape victim's
prior sexual conduct, there may be a conflict between the
jurisdiction's rape shield rule and the constitutional right to testify, a
right closely related to the due process and confrontation clause
rights that we have been discussing. The Seventh Circuit dealt with
such a situation in Stephens v. Miller, 13 F.3d 998 (7th Cir. 1994) (en
banc), a case involving suppression of the defendant's testimony
about the remark he made to the alleged victim during what he
described as consensual sex. This remark referred to the way the
victim allegedly had sex with another man, and its suppression
generated seven opinions that included concurrences and dissent.
We urge you to read Stephens and to consider (1) whether the court
resolved the constitutional issue properly and (2) what implications
Stephens may have for the questions we raised at the end of
subsection b, supra.
d. FRE 412 and Discovery in Civil Cases
The prohibition in FRE 412 raises recurring questions in certain civil
cases, particularly sexual harassment cases, about the scope of
pretrial discovery into, for example, the sexual behavior or
predisposition of a plaintiff alleging sexual harassment. It is a black-
letter principle of civil procedure that the scope of discovery is
broader than the scope of evidentiary admissibility at trial. The
Federal Rules of Civil Procedure require parties to respond fully to
discovery requests that are “reasonably calculated to lead to the
discovery of admissible evidence.” Fed. R. Civ. P. 26. The prospect of
compelled disclosure of private or embarrassing information in
discovery raises many of the same problems: deterring plaintiffs from
filing meritorious claims and witnesses from coming forward. These
problems are addressed by FRE 412, but FRE 412 deals expressly
only with admission of evidence at trial, not disclosure in pretrial
discovery. For a compelling instance of invasive discovery into female
plaintiffs' sexual histories in a sexual harassment case, see Jenson v.
Eveleth Taconite Co., 130 F.3d 1287 (8th Cir. 1997); Clara Bingham &
Laura Leedy Gansler, Class Action: The Story of Lois Jenson and the
Landmark Case That Changed Sexual Harassment Law (2002).
Courts have held, in the context of objections to discovery requests
or motions for protective orders, that discovery requests into a
plaintiff's sexual behavior are governed by Fed. R. Civ. P. 26(c).
However, because that provision expressly incorporates the ultimate
admissibility of evidence as a benchmark, it is clear that FRE 412
should be taken into account in deciding discovery motions on these
issues. See Sanchez v. Zabihi, 166 F.R.D. 500, 510-502 (D.N.M.
1996). Indeed, the Advisory Committee
351

Note to proposed FRE 412 states that “in order not to undermine
the rationale of Rule 412, however, courts should enter appropriate
orders pursuant to Fed. R. Civ. P. 26(c) to protect the victim against
unwarranted inquiries and to ensure confidentiality. Courts should
presumptively issue protective orders barring discovery unless the
party seeking discovery makes a showing that the evidence sought to
be discovered would be relevant[.]” Arguably, the party seeking
discovery should also show that the evidence would not be barred by
FRE 412, which means that FRE 412 would have the same effect on
discovery as privileges.

KEY POINTS
1. FRE 412 severely limits the extent to which a party can
introduce evidence of an alleged victim's sexual predisposition
or sexual behavior in both criminal and civil cases.
2. FRE 412(a) and (b)(1) prohibit a criminal defendant from
introducing such evidence unless it is (1) specific instances of
sexual behavior with a third person offered to show the source
of semen, injury, or other physical evidence; (2) specific
instances of sexual behavior with the defendant offered to
show consent; or (3) constitutionally required evidence.
3. In civil cases, evidence of an alleged victim's sexual
predisposition or behavior is admissible only if it satisfies the
FRE 412(b)(2) reverse FRE 403 balancing test that takes into
account both prejudice to a party and harm to the alleged
victim.

PROBLEMS
5.44. Return to Problem 5.41 at page 326. To prove that Davis in
fact consented to sexual intercourse, the defense seeks to
 admit the following evidence:
(a) testimony from Corbin that he and Davis had consensual
sexual relations on several prior occasions;
(b) testimony from three men that they had met Davis at bars
and had consensual sex with her;
(c) testimony that Davis has a reputation in the community
for promiscuity;
(d) testimony from Sue Smith, a friend of Corbin, that at the
first bar on the night in question Davis told Smith that she
was attracted to Corbin and would like to have sexual
relations with him.
Should this evidence be admitted prior to the adoption of FRE 412?
Should it be admitted under FRE 412, assuming the defense has
complied with the procedural requirements of FRE 412(c)?
5.45. In Problem 5.41, assume that Corbin claims that he did not
have the requisite mental state for rape because he reasonably
(although perhaps mistakenly) believed that Davis had
consented to sexual intercourse. Should any of the

352

evidence be admissible to support his claim prior to the adoption of

FRE 412? After its adoption?
5.46. The defendant, a successful banker with no known history of
sexual misconduct, is accused of sexually assaulting the
teenage daughter of his next door neighbor. He claims that she
is falsely accusing him because he threatened to reveal to her
parents that she and the defendant's son were having a sexual
affair. FRE 412 is applicable. Should the court sustain the
prosecution's objection to the defendant's evidence about the
alleged victim's sexual affair?
5.47. Dawkins, age 23, has been charged with forcibly raping M.M.,
a 15-year-old girl. Dawkins claims that he believed M.M. was
18 and that she consented. M.M. will testify about the rape.
The medical evidence is inconclusive on the question of
whether there had been forcible rape. The prosecution wants
 to offer evidence that two years ago Dawkins forcibly raped his
12-year-old niece and claimed that she had consented.
Dawkins wants to offer evidence that last year M.M. charged
Craig Wilson with rape. Assume, alternately, (a) that Wilson is
unavailable to testify, (b) that, if permitted, Wilson will testify
and deny the rape, and (c) that, if permitted, Wilson and other
witnesses will present compelling evidence that the rape
charge against Wilson was false. FRE 412-414 are applicable.
How should the court rule?
5.48. Frances Meyer, a police officer, has brought sex discrimination
hostile work environment action against the police chief, the
mayor, and the town of Pleasantville. Her claim includes
allegations that pornographic magazines and wall posters were
continually on display at the police station despite her
objections; that the police chief would regularly relate in her
presence the plots of pornographic movies; that he pinched her
buttocks; that he continually told her she was “really missing
something” by not having sex with him; and that he used lewd
language in her presence. The defense is based on the theory
that Meyer welcomed or encouraged this type of behavior. For
this purpose, the defense offers evidence that Meyer herself
told lewd jokes at the police station; that she regularly watched
pornographic movies at home; that she was having a very
public affair with a married man; that she would talk at the
police station about her sexual fantasies; and that on several
occasions she had gone to a strip club. FRE 412 is applicable.
Should some or all of the defense evidence be admissible?
5.49. Bryan, a 25-year-old superstar basketball player, is charged
with felony sexual assault on a 19-year-old woman, Mary, who
worked at the front desk in a resort hotel where Bryan was
staying. Bryan admits having sex with Mary in his hotel room
but asserts it was consensual. Mary asserts that Bryan forced
her to have sexual relations and that she said “no” several
times. There are no other witnesses to these events.
Mary received a medical examination approximately 15
hours after the encounter with Bryan. The exam revealed some
 internal injuries that the prosecution claims are consistent with
the use of force during sexual relations, although the report of
a prosecution expert states that the injuries could also be

353

consistent with consensual sex. Bryan's T-shirt was found to have a

small stain of Mary's blood on it. Are the following items of
evidence admissible?
(1)In its case in chief, the prosecution offers the testimony of
three women as follows: Witness1 says that ten years
ago, she and Bryan were “making out” when he tore her
blouse off and fondled her; Witness2 says that in college
she and Bryan were dating and having consensual sex
but that several times he was very aggressive and
intimidated her into having sexual relations when she
didn't want to; Witness3 says that she met Bryan in a
hotel a year ago, flirted with him, and then went to his
hotel room where he forced her to have sex.
(2)The defense will ask several witnesses about Mary's sexual
activities in the three days before her hospital
examination. Their answers will reveal several sexual
encounters, possibly including one (based on DNA
evidence) after the events with Bryan and before Mary's
hospital exam.
(3)For the defense, hospital records showing that Mary was
treated for an intentional overdose of a prescribed
antidepressant medication one month before the
encounter with Bryan, which the defense claims was an
“attention-seeking” suicide attempt. (The court would first
have to hold that Mary waived her right to keep her
medical records private.)
5.50. In the British case, R. v. Funderburk, [1990] 2 All E.R. 482, the
defendant responded to statutory rape charges accusing him
of having sex with a 13-year-old girl by introducing evidence of
the girl's prior sexual encounters with other men. He claimed
 that he needed this evidence to make the jury properly
understand the girl's ability to give a graphic description of the
alleged intercourse, as well as to show that the girl had
fantasized or transposed her experience of other liaisons to
him. The court decided that the British “rape shield” statute (the
Sexual Offenses (Amendment) Act of 1976) does not block this
evidence. How should a federal court rule on that evidence
under FRE 412?

ASSESSMENTS
A-5.1 FRE 404. Defendant is on trial for burglary. At trial, the prosecution attempts to
introduce evidence that when the police arrested Defendant at his home, the police also
seized a firearm, which had previously been reported as stolen six months prior to the
burglary. The prosecution contends that evidence of the stolen firearm makes it more likely
Defendant committed the subsequent burglary. Defendant objects that the evidence is
inadmissible character evidence. How should the court rule, and why?
A. Sustained. The prosecution's theory of relevance depends on an impermissible
character inference.
B. Sustained. Evidence of other crimes is not admissible in criminal cases.
C. Overruled. The evidence is not offered to prove Defendant's character.
D. Overruled. Either party can introduce character evidence in criminal cases.
A-5.2 FRE 404. Plaintiff sues Defendant for negligence, alleging that Defendant, a car
mechanic, was negligent in installing a tire in Plaintiff's car. According to Plaintiff,

354
the tire blew out shortly after installation, causing an accident and injuries to Plaintiff.
Defendant contends that Plaintiff's negligent driving caused the accident. Defendant attempts
to introduce evidence that Plaintiff was involved in another car accident two months after the
one at issue in the case, for which Plaintiff received a ticket. Defendant also contends
Plaintiffs injuries are the result of this second accident, not the first one. Plaintiff objects that
any evidence regarding the second accident is inadmissible under FRE 404 and FRE 403.
Which statement most accurately reflects how the court should rule on the objection?
A. The evidence is inadmissible because Defendant's theory of relevance is not listed in
FRE 404(b)(2).
B. The evidence is inadmissible under FRE 404(b)(2) because the evidence involves an
act that did not occur prior to the events being litigated.
C. The evidence is inadmissible because this is a civil case.
D. The evidence is relevant for both a permissible purpose under 404(b)(2) and for an
impermissible character purpose. Admissibility will depend on an application of FRE
403.
A-5.3 FRE 406. In a products liability suit against a drug manufacturer, Defendant claims that
it is not liable because its sales representative fully informed the treating doctor of the
dangers associated with the drug. Defendant offers the testimony of the sales representative
that he always discusses the dangers of the drug in question with physicians; that the
discussions include information about a particular study detailing the dangers; and that the
presentations to physicians would “go virtually the same way every time.” Moreover, he
estimates that he has made approximately 20 or 25 such presentations. Plaintiff objects that
this is inadmissible character evidence. How is the court likely to rule, and why?
A. The evidence is admissible as habit evidence.
B. The evidence is admissible as character evidence.
C. The evidence is inadmissible character evidence.
D. The evidence is inadmissible under FRE 403.
A-5.4. FRE 404-05. Defendant has been charged with committing perjury before a federal
grand jury. As part of its case-in-chief at trial, the prosecutor offers the following evidence:
(1) Witness1's testimony that he knows of at least five occasions on
which Defendant has lied.
(2) Witness2's testimony that Defendant has a reputation in the
community for dishonesty.
How should the court rule on these two items of evidence?
A. Both are admissible.
B. (1) is admissible but (2) is inadmissible.
C. (2) is admissible but (1) is inadmissible.
D. Both are inadmissible.

355
A-5.5. FRE 413-14. New State legislates a rule that mandates admission of the defendant's
prior sexual misconduct as evidence of guilt in any trial involving accusations of rape, sexual
assault, or child molestation, while giving courts no discretion to exclude such evidence due
to its prejudicial effect on or confusion of the jury. This rule likely violates constitutional due
process. TRUE or FALSE?

ANSWERS
A-5.1. The best answer is A. The evidence makes it more likely Defendant committed the
burglary by relying on an implicit character inference. There is no evidence the firearm was
even used in the burglary. The theory of relevance depends on an inference about
Defendant's general propensity for crime. Therefore, C is incorrect (assuming the above
theory of relevance). B is incorrect because evidence of other crimes is sometime admissible
in criminal cases (so long as it doesn't violate the character rules). D is incorrect because
none of the exceptions that would allow the prosecution to introduce character evidence (for
example, those involving homicide, sexual assault, or witnesses) apply in this case.
A-5.2. The best answer is D. There is a non-character theory of relevance for this evidence
(i.e., the cause of Plaintiff's injury) and a character theory of relevance (i.e., the second
accident makes it more likely Plaintiff is a negligent driver and drove negligently on the
occasion at issue). Therefore, admissibility of the evidence, and how many details to admit,
will depend on an application of FRE 403. A is incorrect because FRE 404(b)(2) does not
require that the theory of relevance fit one of the enumerated categories—any non-character
theory will do. B is incorrect because FRE 404(b)(2) does not require that the “other acts”
must have occurred prior to the litigate events; relevant acts occurring after the litigated
events are also potentially admissible. C is incorrect because FRE 404(b)(2) evidence is
permitted in civil cases as well as in criminal cases.
A-5.3. The best answer is A. The evidence is specific enough and involves a sufficient
number of incidents to quality as habit (as opposed to character) evidence. Therefore, B and
C are incorrect. (If the evidence were character evidence, it would be inadmissible to prove
the representative's conduct on the particular occasion.) D is unlikely because the probative
value of this evidence appears to be high and there do not appear to be any countervailing
FRE 403 dangers.
A-5.4. The best answer is D. Because Defendant has not “opened the door” by introducing
character evidence, the prosecution may not introduce evidence about Defendant's character
for truthfulness. Therefore, A, B, and C are incorrect. If an exception to the general ban
character evidence applied, then the prosecution would be limited to reputation or opinion
evidence on direct (in which case, (2) but not (1) would be admissible).
A-5.5. TRUE. The trial court's discretion to exclude overwhelmingly prejudicial past-crime
evidence is what makes FRE 413-414 and their state equivalents constitutional, as
emphasized by several circuit court decisions (cited above).

1. Because of its many exceptions to the general statement that prior bad act evidence
should not be admitted, Rule 404(b) is sometimes understood as one of inclusion, and
sometimes as one of exclusion. Whatever the proper formulation, the exceptions must not . .
. the rule.
2. Prior to the restyling, FRE 406 provided that evidence of habit or organizational routine
is “relevant to prove that the conduct of the person or organization on a particular occasion
was in conformity with the habit or routine practice.” FRE 406 (2010) (emphasis added). The
relevance of such evidence is even more obvious than its admissibility. Clearly, FRE 406 was
always intended to distinguish this type of “propensity” evidence from character evidence
barred by FRE 404, and the replacement of the word “relevant” with “may be admitted” in the
restyled rule should not change the rule in substance.
3. May be recute the referened passage? indicates that admissibility is subject to other
exclusionary provisions, including a court's power to exclude probative evidence pursuant to
FRE 403. Note that in the one instance where the drafters of the Federal Rules clearly
intended for admissibility to be mandatory, the rule states that the evidence “whose
emphasis.” See FRE 609(a)(2), discussed in Chapter Seven.
357

CHAPTER SIX
THE OTHER RELEVANCE RULES
In Chapter Five we noted that the Federal Rules—like the common
law—have a variety of rules, sometimes referred to as “relevance
rules,” which exclude relevant evidence. In Chapter Five we
discussed the relevance rules regulating character evidence. Our
focus in this chapter will be on relevance rules that make evidence
inadmissible to prove fault or liability, but that permit such evidence
for other purposes. FRE 407-409, 411. What unites these rules is that
they exclude relevant evidence, in part, to encourage various types of
out-of-court conduct, deemed socially desirable, and to serve policy
goals external to the goal of accurate factfinding at trial. We conclude
the chapter with a discussion of FRE 410, which makes inadmissible
certain evidence relating to guilty pleas.

A. INADMISSIBLE TO PROVE “NEGLIGENCE,” “CULPABLE

CONDUCT,” OR “LIABILITY”

The Federal Rules preclude evidence of subsequent remedial

measures (FRE 407), compromises and offers of compromise (FRE
408), payment of medical and other similar expenses (FRE 409), and
liability insurance (FRE 411) to prove fault or liability. These rules do
not exclude evidence altogether. Rather, they prohibit the proponent
from offering the evidence to prove liability or fault. For example, FRE
408, which prohibits offer-of-compromise evidence for this purpose,
acknowledges that offers of compromise may be admissible for other
purposes, such as showing the bias of a witness. Thus, as with the
character evidence rules we examined in Chapter Five—and as you
will see with the impeachment and hearsay rules we examine in
Chapters Seven and Eight—your analysis of admissibility must
always begin with the question of relevance: What is the proponent of
the evidence trying to prove; what is

358

the proponent's theory of relevance? Only after you answer these

questions will you be able to apply FRE 407, 408, 409, or 411.
If the answer to the relevance inquiry is that there is both a
permissible and an impermissible purpose for which the proponent
may wish to offer the evidence, admissibility of the evidence will
depend on the application of FRE 403: Is the probative value of the
evidence for the permissible purpose substantially outweighed by the
risk that the jury may consider the evidence for the impermissible
purpose? If the answer is no (i.e., if the answer is that the evidence is
admissible), the party against whom the evidence is admitted will be
entitled to a limiting instruction pursuant to FRE 105.

1. FRE 407
FRE 407. SUBSEQUENT REMEDIAL MEASURES
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 the
feasibility of precautionary measures.

2. Explanation of FRE 407

a. The Exclusionary Mandate

The Inference of Negligence or Culpable Conduct. When a

person alters a condition or object that caused an injury and the
change could make future injury less likely, one possible inference to
draw from the remedial action is that the person who made the
alteration believed that the object or condition before the alteration
posed an unreasonable risk of injury. If we know that the person (or
organization) responsible for the object or condition had this belief, it
is more likely that the object or condition did create an unreasonable
risk of injury than if we knew nothing about the person's belief.
Indeed, pursuant to this theory of relevance, when a party to an
action takes subsequent remedial action, it is equivalent to a
recognition or implicit acknowledgment of fault. Diagram 6-1
illustrates this reasoning.
There is, however, an alternative explanation. The person (or
organization) may have carried out the remedial measure to improve
safety conditions that were not inadequate. That scenario involves no
acknowledgment of fault whatsoever. To paraphrase Baron
Bramwell's saying in Hart v. Lancashire & Yorkshire Ry. Co., 21 L.T.R.
N.S. 261, 263 (1869), “because the world gets wiser as it gets older,”
it doesn't

359

mean that “it was foolish before.” Subsequent remedial measures

evidence is therefore inherently ambiguous. More often than not, its
contribution to factfinding would be minimal. At the same time,
allowing tort plaintiffs to use such evidence as proof of the
defendant's acknowledgment of fault would discourage individuals
and firms from implementing subsequent remedial measures. This
twin vice of evidentiary ambiguity and the potential chilling of socially
desirable conduct justifies the exclusionary mandate of FRE 407.
Flaminio v. Honda Motor Company, Ltd., 733 F.2d 463 (7th Cir. 1984).
In addition to negligence and culpable conduct, FRE 407's
exclusionary mandate extends to subsequent remedial measures
offered to prove product defects and the need for a warning or
instruction.

360
 Activities That May Be Subsequent Remedial Measures. A
subsequent remedial measure includes any action that a person
takes after a damaging event that reduces the likelihood of the
event's reoccurrence. It may include, for example, an employer's
change in its promotion policy, Hamilton v. New York, 627 F.3d 50, 53
(2d Cir. 2010) (evidence employer changed promotion policy to
involve more individuals to “help prevent unsuccessful candidates
from feeling as if they were unfairly passed over” excluded as a
subsequent remedial measure in employment-discrimination case);
sending a memorandum to employees urging them to observe safety
regulations, First Security Bank v. Union Pac. R. Co., 152 F.3d 877
(8th Cir. 1998) (admonishing employees about location of rail cars in
relation to crossing); altering the design of a product, Flaminio v.
Honda Motor Co. 733 F.2d 463 (7th Cir. 1984) (motorcycle design);
repairing or altering the condition of property, Knight v. Otis Elevator
Co., 596 F.2d 84 (3d Cir. 1979) (placing “guards” around elevator
buttons); disciplining or firing an individual whose alleged negligence
was responsible for an accident, Specht v. Jensen, 863 F.2d 700
(10th Cir. 1988) (disciplining police officers for violation of Fourth
Amendment); Hull v. Chevron U.S.A., Inc. 812 F.2d 584 (10th Cir.
1987) (firing forklift operator following accident); sending a recall
notice, Chase v. General Motors Corp., 856 F.2d 17 (4th Cir. 1988)
(recall of cars manufactured before design change); changing rules or
regulations, Ford v. Schmidt, 577 F.2d 408 (7th Cir. 1978) (change in
prison regulations); or posting warning signs, In re Joint Asbestos
Litigation, 995 F.2d 343 (2d Cir. 1993) (posting warning sign on
asbestos product); Tuer v. McDonald, 684 A.2d 478 (Md. 1996),
decided under a Maryland rule identical to FRE 407 (changing
medical protocols for treating patients with anticoagulants).
There Is No Intent or Motive Requirement. FRE 407 applies to
measures that would have made earlier injuries less likely had the
measures been implemented before the injuries. The inferences
prohibited by FRE 407—from subsequent action to negligence,
culpable conduct, defect, or the need for a warning—depend on
beliefs by those engaging in subsequent actions that prior conditions
were unreasonably dangerous. In other words, without these beliefs,
the evidence is irrelevant for proving the prohibited purposes. David
P. Leonard, The New Wigmore §2.2 (2002) (“Relevancy is assumed
on the basis that the evidence constitutes a recognition of fault by the
party whose conduct is in question.”). In applying FRE 407's
exclusionary mandate,

361

however, there is no additional requirement that the subsequent

actions were done with the proven intent or motive to prevent future
injuries or to make conditions safer. See Chlopek v. Federal Ins. Co.,
499 F.3d 692, 700 (7th Cir. 2007) (rejecting argument that a change
in a warning was not “remedial” because it was not prompted by
safety concerns: “motive for making the change is irrelevant.”).
The Effectiveness of the Remedial Action. Courts rarely focus on
how effective a remedial measure would have been in making earlier
injury or harm less likely. For example, courts readily accept that firing
an employee can be a subsequent remedial measure within the
meaning of FRE 407 without examining whether the action is likely to
reduce the chance of future accidents. There is, however, precedent
for the proposition that FRE 407 does not apply to investigations that
are not “remedial” but only “initial steps toward ascertaining whether
any remedial measures are called for.” Fasanaro v. Mooney Aircraft
Corp., 687 F. Supp. 482, 487 (N.D. Cal. 1988); Fox v. Kramer, 994
P.2d 343 (Cal. 2000) (accepting the prevalent view that doctors' peer
review and other investigative procedures are not “subsequent
remedial measures”). Compare Rocky Mountain Helicopters, Inc. v.
Bell Helicopters, 805 F.2d 907, 918 (10th Cir. 1986) (investigative
reports not subsequent remedial measures) with Maddox v. Los
Angeles, 792 F.2d 1408, 1417 (9th Cir. 1986) (“investigation and
measures taken were remedial measures”).
The Timing of the Remedial Action. For evidence of a remedial
measure to be inadmissible under FRE 407, it must occur after “an
earlier injury or harm.” The purpose of this language, according to the
Advisory Committee Note, is to make it clear that “the rule applies
only to changes made after the occurrence that produced the
damages giving rise to the action.” Thus, if the defendant changed a
product design after the plaintiff was injured, FRE 407 would apply to
prevent the plaintiff from introducing evidence of the design change to
show defect. On the other hand, if the defendant took the remedial
action subsequent to the injuries of several other people but prior to
the plaintiff's injury, FRE 407 would not preclude admissibility of the
design change. Trull v. Volkswagon, Inc., 187 F.3d 88 (1st Cir. 1999).
In appropriate cases, however, the court may still exclude such
evidence pursuant to FRE 403.
Remedial Actions Mandated by the Law and Government
Agencies. Compliance with a statute, regulation, or a government
agency's requirement is not a “remedial” measure. Such compliance
is primarily motivated by the person's or the firm's desire to avoid
penalty rather than to fix a safety problem. Furthermore, penalties for
noncompliance sufficiently incentivize individuals and firms to take
the mandated actions. This “stick” renders the FRE 407 “carrot”
redundant and, consequently, inapplicable. See O'Dell v. Hercules,
Inc., 904 F.2d 1194, 1204 (8th Cir. 1990) (“An exception to Rule 407
is recognized for evidence of remedial action mandated by superior
governmental authority or undertaken by a third party because the
policy goal of encouraging remediation would not necessarily be
furthered by exclusion of such evidence.”). Compliance evidence,
however, would normally be irrelevant as proof of negligence, fault, or
a product defect.
362
b. Permissible Uses of Subsequent-Remedial-Measure Evidence
FRE 407 makes it clear that subsequent-remedial-measure
evidence may be admissible for other purposes. As with FRE 404(b),
the list of permissible purposes in FRE 407 is not exclusive. Subject
to FRE 403 and other exclusionary rules, subsequent-remedial-
measure evidence may be admissible for any purpose other than to
show negligence, culpable conduct, defect, or the need for a warning
or instruction.
The purposes listed in the second sentence of FRE 407 are the
permissible purposes for which subsequent-remedial-measure
evidence is most likely to be relevant. For example, the fact that the
defendant repaired a staircase suggests that the defendant was the
owner of the building containing the staircase or that the defendant,
rather than somebody else, had control over the staircase and was
responsible for keeping it in good order. Cf. Lee v. E.I. Dupont, 249
F.3d 362 (5th Cir. 2001) (subsequent design change to scaffold
admissible against defendant to show that defendant rather than
plaintiff's employer was responsible for maintaining the scaffold). If a
defendant testifies that the staircase was in good condition at the time
of the accident, the fact that the defendant had repaired or authorized
the repair of the staircase is relevant to impeach the defendant's
credibility: Making or authorizing the repair seems inconsistent with
the witness's testimony that the staircase was safe at the time of the
accident. Cf. Anderson v. Malloy, 700 F.2d 1208 (8th Cir. 1983) (in
rape victim's negligence action against motel operator, defendant
testified that safety chains and peep holes on doors would only
provide false sense of security and that everything necessary for
security had been done; plaintiff permitted to show subsequent
installation of safety chains and peep holes both to show feasibility
and to impeach defendant).
Finally, as we suggested previously, taking subsequent remedial
action may rebut a defendant's claim that it was not feasible to
maintain the staircase in a safer condition. Cf. Dixon v. International
Harvester Co., 754 F.2d 573 (10th Cir. 1985) (defendant claimed
additional protective metal on logging vehicle not feasible because it
would impair vision; evidence of subsequent installation of protective
metal on similar vehicles held admissible). Importantly, however,
when a defendant testifies that he acted according to the then-
applicable safety standards, his denial of the negligence allegations
cannot be interpreted as disputing the feasibility of the safety
improvements that he subsequently implemented. For the FRE 407
exception to apply, the defendant must argue that those
improvements were not feasible at the time of the accident. Tuer v.
McDonald, 684 A.2d 478 (Md. 1996).
c. The “If Disputed” Requirement
Even if the “if disputed” phrase did not appear in FRE 407, FRE 403
should be a basis for excluding evidence of a subsequent remedial
measure offered to prove an issue that is not disputed. By the terms
of the rule, the “if disputed” phrase does not apply to evidence offered
for impeachment. There is no need for it to do so. Impeachment
evidence is evidence offered to undermine the credibility of a witness,

363

and every witness's credibility is regarded as a matter that can be

disputed. See FRE 611(b). Prior to the 2011 restyling amendments to
the FRE, the “if disputed” requirement was phrased as “if
controverted,” and therefore prior judicial opinions applying FRE 407
will use the “if controverted” language.
d. The Relationship Between FRE 407 and FRE 403
When a party offers subsequent-remedial-measure evidence for a
legitimate, disputed purpose, the question of admissibility in theory
should turn on the applicability of FRE 403: Is the probative value of
the evidence for the legitimate purpose (e.g., feasibility) substantially
outweighed by the possibility that the jurors may use the evidence for
the impermissible purpose of inferring negligence or other culpable
conduct? In fact, if subsequent-remedial-measure evidence is
relevant to prove some contested issue other than negligence,
culpable conduct, defect, or need for a warning, the result almost
invariably is that the evidence is admissible. Christopher B. Mueller
and Laird C. Kirkpatrick, Federal Evidence §130 (2d ed. 1994). If so,
the party against whom the evidence is admitted is entitled to a
limiting instruction pursuant to FRE 105.
Courts, however, do sometimes rely on FRE 403 to exclude
evidence that does not fit within FRE 407's language but that may
raise similar policy concerns. See, e.g., Bogosian v. Mercedes Benz,
Inc., 104 F.3d 472 (1st Cir 1997) (excluding evidence of modifications
made to a product after purchase by plaintiff, but before injury,
because jurors may overestimate probative value).

3. Elaboration of FRE 407

a. The Rationales for FRE 407
There are four rationales for FRE 407. Some of them also apply to
other rules—FRE 408 (offers of compromise), 409 (medical
expenses), and 411 (liability insurance)—that exclude evidence to
prove negligence, liability, or culpable conduct. We discuss these
other rules later in this chapter.
Low Probative Value. First, as we already mentioned, the evidence
may have relatively low probative value because of its ambiguity.
Although a defendant may have engaged in subsequent measures to
remedy prior negligence, culpability, defect, or the need for a warning,
the defendant may have engaged in the same conduct for a variety of
other reasons. For example, a defendant may take subsequent
remedial action to make a product safer out of an abundance of
caution even though there was no negligence or design defect at the
time of an injury. (Indeed, the injury or harm at issue may have
revealed information for making conditions safer, which the defendant
could not have reasonably foreseen beforehand.) The defendant may
also undertake subsequent changes for reasons unrelated to
improving safety. Similarly, a party may offer to settle a claim (FRE
408) in order to avoid litigation costs, not because the party is at fault.

364
 Countervailing FRE 403 Factors. Second, countervailing FRE 403
considerations may warrant exclusion. These considerations include
a concern that admission of the evidence to prove negligence or fault
may tend to mislead the jury. Jurors may reasonably expect that the
evidence they hear has a bearing on what they are supposed to
decide. Thus, if they hear evidence that in fact has low probative
value, they may be misled into thinking that the evidence is more
probative than it really is. Moreover, jurors may overestimate the
probative value of the evidence because of “hindsight bias.” Jurors
who learn that a defendant responded to an accident or injury by
making changes may overestimate how likely the defendant should
reasonably have foreseen the accident or injury ahead of time. See
Dan M. Kahan, The Economics—Conventional, Behavioral, and
Political—of “Subsequent Remedial Measures” Evidence, 110 Colum.
L. Rev. 1616 (2010).
Although jurors may overestimate the probative value of evidence of
subsequent remedial measures (and this overvaluation may
contribute to erroneous decisions), keep in mind that depriving jurors
of relevant and probative remedial evidence may also contribute to
erroneous decisions.
Not Discouraging Desirable Conduct. Third, the rules excluding
evidence to prove liability or fault traditionally have been justified on
the ground that we do not want to discourage individuals from
engaging in socially desirable conduct such as making conditions and
products safer. In this respect, these rules are similar to some rules of
privilege. We exclude evidence of confidential communications
between lawyers and clients in part because we do not want to
discourage clients from being candid when they consult lawyers for
legal advice. Similarly, we exclude evidence of subsequent remedial
measures, offers of compromise (FRE 408), payment of medical
expenses (FRE 409), and maintaining liability insurance (FRE 411) to
prove fault, in part because we do not want to discourage individuals
from engaging in these types of socially desirable conduct.
Consider whether this justification provides a sufficient basis for
excluding relevant evidence. To what extent do you think individuals
take into account—or even know—the rules of evidence in making
decisions about subsequent remedial measures, offers of
compromise, or payments of medical expenses? Would you
distinguish in this context between individuals and firms? (The
answers may depend to a substantial extent on whether the individual
has sought the advice of counsel before engaging in the activity.)
Not Punishing Desirable Conduct. A fourth rationale for these
rules is that—regardless of low probative value, misleading the jury,
or deterring socially desirable conduct—we do not want to punish or
disadvantage individuals for doing good things. This rationale is most
frequently associated with the exclusionary rule for payment of
medical expenses, sometimes referred to as the “good Samaritan”
rule. We suggest, however, that the rationale is equally applicable to
—and perhaps more compelling than the deterrence rationale for—
the limitations on the use of remedial measures, offers to
compromise, and insurance.

365
b. Subsequent Remedial Measures by Third Persons

Courts frequently admit evidence of remedial measures taken by

persons other than the party against whom the evidence is offered.
See Diehl v. Blaw-Knox, 360 F.3d 426, 430 (3d Cir. 2004) (following
plaintiff's injury, employer modified piece of road-widening equipment
that injured plaintiff; evidence of modification admissible against
manufacturer of equipment); Mehojah v. Drummond, 56 F.3d 1213
(10th Cir. 1995) (suit against ranch by couple whose automobile
struck cattle on highway; FRE 407 not applicable to subsequent
installation of fence by owner of land leased to ranch); Pau v.
Yosemite Park & Curry Co., 928 F.2d 880 (9th Cir. 1991) (suit against
bike rental company following fatal accident on National Park trail;
evidence that Park Service posted sign prohibiting bikes following the
accident not precluded by FRE 407); but see In re Air Crash Disaster,
86 F.3d 498 (6th Cir. 1996).
 KEY POINTS
1. FRE 407 makes evidence of subsequent remedial measures
inadmissible to prove negligence, culpable conduct, defect in a
product, or need for a warning or instruction.
2. FRE 407's exclusionary mandate applies only to remedial
action taken after the event that is the subject of the litigation.
3. Subject to FRE 403, subsequent-remedial-measure evidence
may be admissible for other purposes, the most likely of which
are those listed in FRE 407: to show ownership, control,
feasibility, or to impeach the credibility of a witness. The
evidence should be admissible for these other purposes only if
they are disputed issues in the case.

PROBLEMS
6.1. Return to Problem 3.2 at page 148. Assume that six months
ago the San Ramon School District adopted a policy requiring
all of its bus drivers to take a special driver education course
each year. Will the plaintiff be able to admit evidence of this
policy adoption?
6.2. Return to Problem 3.12 at page 168. The plaintiff, Cynthia
Richards, offers evidence that shortly after the accident the
Kmart supervisor who testified during discovery required store
employees to walk the aisles every 15 minutes to look for
clutter on the floor. Can you articulate a theory of relevance for
this evidence? For the theory of relevance you have identified,
should the evidence be excluded under FRE 407?
Would your answers change if the supervisor testifies at trial:
“At the time of Ms. Richards's accident our store was very safe;
no policy of patrolling the store was necessary because our
employees always picked up clutter in the aisles immediately”?
Again try to articulate a theory of relevance for this evidence
and explain whether it should be excluded under FRE 407.

366
6.3. Lisa Evans is suing the Jones Manufacturing Co. for the
wrongful death of her husband, Edward. Edward suffered
injuries that resulted in his death when a coworker turned on an
industrial baling machine, manufactured by the defendant,
when Edward was inside the hopper attempting to clear a jam.
Lisa wishes to introduce evidence that after Edward's death
(a) Jones Manufacturing Co. fired the individual responsible
for designing safety features on the baler; and
(b) Edward's employer, Loman Industries, modified the baler
by installing an access door to the hopper and by making
the baler inoperable when the access doors were open.
Jones objects that both items of evidence should be excluded
under FRE 407. Should Jones's objections be sustained?
6.4. Eugene Wright is suing the Loop Ladder Co. for personal
injuries that he received when a ladder on which he had been
standing fell to the ground with him on it. Eugene claims that a
plastic tip on the ladder was too weak and that it broke, causing
the ladder to fall. The defendant claims that the plastic tip broke
from the impact of the fall or at some later time. An expert
witness testifies for the defendant that the tip was adequate for
its purpose. Plaintiff offers evidence that shortly after his
accident, the Loop Ladder Company substituted a
strengthened plastic cap on all of its ladders. Should this
evidence be excluded under FRE 407? Would it make any
difference in your analysis if the expert were a Loop employee
who had authorized the change in the plastic tip?
6.5. Return to Problem 5.22 at page 307. Consider the admissibility
of the following evidence against Acme:
(a) testimony that following the incident involving Henry,
Acme hired outside consultants to prepare a report on the
safety of its cleanser;
(b) the consultants' post-accident report analyzing the toxicity
of the cleanser;
(c) testimony that following the report Acme reduced the
toxicity of its cleanser formula.
 Would any of your answers change if an Acme executive had
testified, “There is nothing safer than Acme Cleanser”?

3. FRE 408
RULE 408. COMPROMISE OFFERS AND NEGOTIATIONS

(a) Prohibited Uses. Evidence of the following is not admissible—on behalf of any
party—either to prove or disprove the validity or amount of a disputed claim or to
impeach by a prior inconsistent statement or a contradiction:
(1) furnishing, promising, or offering—or accepting, promising to accept, or offering
to accept—a valuable consideration in compromising or attempting to compromise the
claim; and
(2) conduct or a statement made during compromise negotiations about the claim—
except when offered in a criminal case and when the

367
negotiations related to a claim by a public office in the exercise of its regulatory,
investigative, or enforcement authority.
(b) Exceptions. The court may admit this evidence for another purpose, such as
proving a witness's bias or prejudice, negating a contention of undue delay, or proving
an effort to obstruct a criminal investigation or prosecution.

4. Explanation of FRE 408

a. The Exclusionary Mandate; Permissible Uses; FRE 403
One plausible inference to draw from offers of compromise is that
the offerors—like people who take subsequent remedial action—
believe they were at fault in the incident giving rise to a claim against
them. If they have this belief, one can then make the further inference
that they were in fact at fault. In short, one way in which
compromising or offering to compromise a claim is relevant is as a
tacit recognition of fault or liability.
As is the case with subsequent-remedial-measure evidence, there
are other possible explanations for wanting to compromise a claim.
For example, some individuals who adamantly believe they are not at
fault may be willing to settle a claim because their potential litigation
costs are too high or because their involvement in the litigation may
hurt their business or reputation.
 The FRE 408 exclusionary mandate and its exceptions are the
equivalent of the two sentences in FRE 407. To encourage
settlements, FRE 408 excludes evidence of compromises and of
offers to compromise on the questions of liability for or the amount of
claims. At the same time, the rule makes it clear that such evidence
may be admissible for other purposes. The list of other purposes,
which is not exclusive, includes the purposes for which offers of
compromise are most likely to be relevant. For example, to show the
bias of a witness who testifies for the plaintiff, the defendant may
want to establish that the witness had previously settled a similar
claim with the defendant for less than the witness had wanted, see
Croskey v. BMW of North America, Inc., 532 F.3d 511, 519 (6th Cir.
2008), or that the witness's claim against the plaintiff includes a
provision for the plaintiff to pay to the witness a portion of any
judgment obtained against the defendant, see Brocklesby v. United
States, 767 F.2d 1288 (9th Cir. 1985). More contestably, a
municipality's settlement of a police brutality action may be
admissible to show that the municipality knew of and condoned the
officer's conduct. Spell v. McDaniel, 824 F.2d 1380 (4th Cir. 1987).
Proof of negotiations and offers to compromise may indicate that a
party was acting in good faith to resolve a claim and thus rebut a
charge of undue delay, Californian & Hawaiian Sugar Co. v. Kansas
City Terminal Warehouse Co., 602 F. Supp. 183 (W.D. Mo. 1985), or
was acting in bad faith, Athey v. Farmers Ins. Exch., 234 F.3d 357
(8th Cir. 2000) (compromise negotiations admissible to show bad
faith in negotiating); Bankcard Am., Inc. v. Universal Bancard Sys.,
Inc., 203 F.3d 477, 484 (7th Cir. 2000) (“It would be an abuse of Rule
408 to allow one party during compromise negotiations to lead his
opponent to believe he will not enforce applicable time limitations and
then object when the opponent attempts to prove the waiver of time
limitations”).

368

Offers of compromise during an income tax audit may be admissible

to show the taxpayer's knowledge and to rebut a claim of good faith in
a tax evasion prosecution. United States v. Hauert, 40 F.3d 197 (7th
Cir. 1994). Compromise evidence may also be admissible to prove
“absence of mistake” or that an event was not an “isolated incident.”
See Orr v. Albuquerque, 531 F.3d 1210, 1219 (10th Cir. 2008)
(compromise evidence admissible to prove that “Ms. Vigil's treatment
of Officers Orr and Paiz was not a random accident, as defendants
claim, but part of a larger and deliberate pattern of treating pregnant
women differently from other employees.”).
FRE 408 also prohibits using compromise evidence to impeach a
witness “by a prior inconsistent statement or a contradiction.” Such
uses of compromise evidence, according to the Advisory Committee,
“would tend to swallow the exclusionary rule and would impair the
public policy of promoting settlements.”
Unlike FRE 407, FRE 408(b) does not contain “if disputed”
language in specifying permissible uses. Nonetheless, in order to
have sufficient probative value to overcome an FRE 403 objection,
the purpose for which the evidence is offered should be a disputed
issue in the case.
b. Conduct or Statements Made During Negotiations
FRE 408 excludes not only compromises and offers of compromise
but also—at least in civil actions—conduct or statements made during
compromise negotiations. (We discuss FRE 408 and criminal
prosecutions in subsection d.) This is a significant departure from the
common law rule, which excluded only statements of offer and
acceptance. Consider, for example, a situation in which Amy and
John are involved in an automobile accident. Amy threatens to sue,
asserting that John was at fault and must pay for the damage to
Amy's car. In response, John says:
(1) “Let's settle this matter ourselves so we don't have to pay fat
fees to lawyers. I'll give you $500 and we'll call everything even.”

Alternatively, he says:
(2) “There's no need to deal with lawyers, who'll demand a fat fee.
This was my fault. I'll give you $500 and we'll call everything
even.”
Assume that Amy rejects the settlement offer and sues John. Both
the common law and FRE 408 would preclude use of the offers of
compromise against John to prove liability. The common law, but not
FRE 408, would permit Amy to use John's acknowledgment of fault in
the second statement to prove liability.
c. The “Disputed Claim” Requirement
Offers of compromise and statements of fault are inadmissible
pursuant to FRE 408 only if made during compromise negotiations
over a disputed claim. If there is no disputed claim or if the statement
of fault occurs outside the context of compromise negotiations, the
statement of fault will be admissible. For example, in the preceding
hypothetical if John made the offer and statement of fault before Amy
made any

369

claim, the statement would be admissible. Big O Tire Dealers, Inc. v.

Goodyear Tire & Rubber Co., 561 F.2d 1365, 1372-1373 (10th Cir.
1977) (statements admissible as “business communications”;
“discussions had not crystallized to the point of threatened litigation”).
If John conceded full liability and was not attempting to reach a
compromise, his statements also would be admissible. Perzinski v.
Chevron Chem. Co., 503 F.2d 654 (7th Cir. 1974) (salesperson's
statement that company would “take care of” plaintiff admissible).
In applying FRE 408, the trial judge must usually decide some
preliminary questions of fact. What type of information is likely to be
important to the preliminary question whether there is a disputed
claim and a legitimate attempt to compromise that claim? Reconsider
whether John's initial two statements, which we characterized as
having been made after Amy threatened to sue, would be admissible
under the following circumstances:
(a) There had been no threat to sue.
(b) The threat had been a spontaneous outburst at the time of the
accident.
(c) The possible suit had been mentioned in the context of a polite
but restrained conversation between Amy and John about
various options available to them.
(d) The value of Amy's claim did not exceed $500. (Does it matter
whether John or a reasonable person would probably have been
aware of this fact?)
To what extent are the foregoing factors relevant to the judge's
decision whether Amy and John were engaged in compromise
negotiations over a disputed claim?
The answer to the foregoing question, of course, depends in part on
how courts interpret “a disputed claim,” and the courts of appeals
provide varying answers. For example, compare Blu-J, Inc. v. Kemper
C.P.A. Group, 916 F.2d 637, 642 (11th Cir. 1990) (FRE 408
exclusionary rule applies to “statements or conduct . . . intended to be
part of the negotiations toward compromise”) with Big O Tire Dealers
v. Goodyear Tire & Rubber Co., supra at 1373 (FRE 408 exclusionary
rule applies only after discussions “crystalize to the point of
threatening litigation”).
d. The Applicability of FRE 408 to Criminal Cases
If a person admits some wrongdoing in the course of negotiations to
settle a civil claim, may the prosecution use the statement against the
wrongdoer in a subsequent criminal prosecution? FRE 408 prohibits
the use of compromises and offers and acceptances in criminal
prosecutions, but it creates a limited exception to the general
prohibition against the use of conduct or a statement made during
compromise negotiations. The exception—that is, the right to use in
criminal prosecutions conduct and statements made during civil
compromise negotiations—exists when “negotiations related to a
claim by a public office in the exercise of its regulatory, investigative,
or enforcement authority.” To illustrate a factual scenario that fits the
scope of this exception, the Advisory Committee cited United States
v. Prewitt, 34 F.3d 436, 439 (7th Cir. 1994). Prewitt was a mail fraud
prosecution in which the court upheld the admissibility of statements
of fault made during the compromise of a civil securities enforcement
action. According to the Advisory Committee, “Where an individual
370

makes a statement in the presence of government agents, its

subsequent admission in a criminal case should not be unexpected.”
e. A Party's Own Offer of Compromise
In Pierce v. F.R. Tripler & Co., 955 F.2d 820, 828 (2d Cir. 1992), the
court held that FRE 408 applies to a party's effort to introduce its own
offer of compromise. Pierce was an age discrimination suit in which
the defendant, to show mitigation of damages, sought to introduce its
offer of a job to the plaintiff. Although the purpose of the offer was to
contest the amount of a claim, the defendant had argued that the
policies underlying FRE 408 were inapplicable when a party sought to
introduce evidence of its own offer of compromise. The “on behalf of
any party” language in FRE 408 was intended to codify the result in
Pierce. The Advisory Committee offered two reasons for the
amendment. First, the offeror's revealing its own offer could “reveal
the fact that the adversary entered into settlement negotiations,”
which would undermine the policy of FRE 408. Second, “proof of
statements and offers made in settlement would often have to be
made through the testimony of attorneys, leading to the risks and
costs of disqualification.” There is yet another, possibly more
compelling, reason for suppressing “own settlement offer” evidence
under FRE 408 or 403. Making such evidence admissible would
motivate parties to make unattractive settlement offers strategically in
order to use them as evidence in a subsequent litigation. This
strategic behavior would impede settlements while unnecessarily
increasing the cost of settlement negotiations for all parties involved.
See generally Gideon Parchomovsky & Alex Stein, The Distortionary
Effect of Evidence on Primary Behavior, 124 Harv. L. Rev. 518
(2010).
f. Compromises and Offers of Compromises by Third Persons
Consider a case in which the plaintiff sues the defendant, a
restaurant, for food poisoning. The plaintiff claims that the restaurant
was responsible for mishandling the food. The defendant seeks to
introduce evidence that it had made a claim against its food supplier
for $300,000, and that the supplier had settled the claim for $250,000.
The defendant argues that the settlement evidence is an admission
by the supplier that the supplier provided the restaurant with
adulterated food, and that the adulteration—not the defendant's
alleged mishandling of the food—was responsible for the food
poisoning. Assume that the court must decide this case under the
negligence rule, rather than the doctrine of strict liability for defective
products.
Just as we suggested that evidence of a third person's subsequent
remedial measure does not implicate the policies underlying FRE 407
(see page 365, supra), evidence of a third person's offer of
compromise does not implicate the policies underlying FRE 408. The
negotiations and settlement have nothing to do with the party against
whom the evidence is offered, and it will be adequate protection for
the third person to exclude the evidence if and when the third person
becomes a party. Courts, however, have taken different approaches
for compromise evidence involving distinct claims and third parties.
Compare Towerridge, Inc. v. T.A.O., Inc., 11 F.3d 758, 770 (10th

371

Cir. 1997) (“Rule 408 does not require the exclusion of evidence
regarding the settlement of a claim different from the one litigated”)
with C&E Serv., Inc. v. Ashland, Inc., 539 F. Supp. 2d 316, 320
(D.D.C. 2008) (“The very policy of Rule 408 would be defeated if it did
not operate to preclude the admissibility of settlement negotiations in
a case involving another party or another claim.”).

5. FRE 409
RULE 409. OFFERS TO PAY MEDICAL AND SIMILAR EXPENSES
Evidence of furnishing, promising to pay, or offering to pay medical, hospital, or similar
expenses resulting from an injury is not admissible to prove liability for the injury.

6. Explanation of FRE 409

 a. The Exclusionary Mandate
Just as evidence of a subsequent repair or an offer to compromise
may be relevant as a recognition of fault, paying or offering to pay
another person's medical expenses may be relevant for similar
reasons: The payments may imply that those paying believe they are
legally responsible for the injuries.
For reasons similar to Rules 407 and 408, FRE 409 excludes such
evidence to prove liability. For example, if a driver hits a pedestrian
and offers to pay the pedestrian's medical expenses, neither the offer
nor the payment is admissible to prove the driver's liability. Similarly, if
an insurance company pays a person's medical expenses before any
trial or settlement, evidence of the payment is not subsequently
admissible to prove the insurance company's liability. See Galarnyk v.
Hostmart Mgmt., 55 Fed. Appx. 763 (7th Cir. 2003) (plaintiff “fell in the
bathroom of [a motel], converting gravitational energy to kinetic
energy with such effectiveness that he punched a hole in the wall”;
offers by defendant and defendant's insurance carrier to pay medical
expenses not admissible to show liability).
b. The Admissibility of Statements Made in Conjunction with Medical and Similar
Payments
In one significant respect FRE 409 differs from FRE 408:
Statements made in conjunction with the payments—including
statements of fault—are not excluded. According to the Advisory
Committee:

This difference in treatment arises from fundamental differences in nature.

Communication is essential if compromises are to be effected, and consequently broad
protection of statements is needed. This is not so in cases of payments [governed by
FRE 409], where factual statements may be expected to be incidental in nature.

372
c. FRE 409 Permits Evidence of Payment for Purposes Other Than to Show Liability
Although FRE 409 does not include an illustrative list of possible
permissible uses for evidence of medical and similar payments, this
evidence—like FRE 407, 408, and 411—may be admissible for any
relevant purpose other than to prove liability. See, e.g., Savoie v. Otto
Candies, Inc., 692 F.2d 363 (5th Cir. 1982) (maintenance payments to
prove status as seaman).
d. What Constitutes a “Similar” Expense?
FRE 409 is rarely invoked, perhaps because there are not enough
good Samaritans among us. If there were, an issue that would
undoubtedly arise in applying FRE 409 is what constitutes “similar
expenses.” For example, should evidence of paying to have an
automobile repaired or paying subsistence income while an individual
is recuperating from injury be excluded? See Great Coastal Express,
Inc. v. Atlanta Mut. Cos., 790 So. 2d 966 (Ala. Civ. App. 2000) (state
equivalent of FRE 409 not a bar to evidence that defendant paid for
some of clean up following fuel leak; evidence admissible to infer
defendant's negligence).

7. FRE 411
RULE 411. LIABILITY INSURANCE
Evidence that a person was or was not insured against liability is not admissible to prove
whether the person acted negligently or otherwise wrongfully. But the court may admit
this evidence for another purpose, such as proving a witness's bias or prejudice or
proving agency, ownership, or control.

8. Explanation of FRE 411

a. The Exclusionary Mandate
This rule is similar in purpose, structure, and application to FRE
407-409. With respect to liability insurance, however, the probative
value of the forbidden inference is particularly weak. This inference
holds that people with liability insurance are likely to be less careful
than people without insurance, who must pay their own money for the
injuries they cause. Apart from being empirically unfounded, this
inference pays no regard to the “moral hazard” exceptions to
insurance and to the premium increases charged to people
responsible for accidents.
 The exclusionary mandate of FRE 411 is often rationalized by the
need to prevent jurors from basing their verdict on “deep pocket”
considerations. Arguably, if evidence of liability insurance were
admissible on the question of fault, there would be a substantial risk
of unfair prejudice. Jurors might be inclined to impose damages
because of insurance or to forgo or minimize damages out of
sympathy for the uninsured. On

373

the other hand, given the pervasiveness of liability insurance, if an

uninsured party is not able to present evidence of absence of
insurance, there is a risk that the jury may assume that the party is
insured and impose damages on the basis of this incorrect
assumption. Moreover, empirical studies of jurors indicate that,
despite instructions to the contrary, jurors frequently discuss and
make assumptions about insurance. See, e.g., Shari Seidman
Diamond & Neil Vidmar, Jury Ruminations on Forbidden Topics, 87
Va. L. Rev. 1857, 1876 (2001) (in a study of 40 tort cases, jurors
discussed insurance in 85% of the cases). Granted that jurors rely on
their beliefs about insurance in their deliberations (even when they
are instructed not to), why not set up a rule that provides the jury with
accurate information about insurance? Would such a rule improve the
existing legal regime?
b. The Permissible Uses of Evidence of Liability Insurance
Like FRE 407-409, FRE 411 excludes evidence of liability insurance
only to prove negligence or wrongful conduct. The second sentence
of FRE 411 lists the most common permissible uses of evidence of
liability insurance. Like the lists of permissible purposes in FRE 407
and FRE 408, the FRE 411 list is not exhaustive. When there is a
permissible purpose, the admissibility of the evidence should depend
on the application of FRE 403, and FRE 403 should require at a
minimum that the issue for which the evidence is offered is disputed.
Liability insurance offered for some legitimate, disputed purpose is
usually admitted. Morton v. Zidell Explorations, Inc., 695 F.2d 347 (9th
Cir. 1982) (proof of purchasing insurance to rebut claim that contract
not in effect); Hunziker v. Scheidemantle, 543 F.2d 489 (3d Cir. 1976)
(proof of insurance covering alleged agent to prove agency); Newell
v. Harold Shaffer Leasing Co., 489 F.2d 103 (5th Cir. 1974)
(maintaining insurance introduced to show ownership or control). If,
as is frequently the case, an insurance investigator testifies about the
results of an investigation, evidence that the investigator represents a
company that insures one of the parties will probably be admissible
both as part of the general background information about the witness
and as an indication of the possible bias of the witness. Conde v.
Starlight I, Inc., 103 F.3d 210 (1st Cir. 1997); see also Cook v.
Rockwell Intl. Corp., 580 F. Supp. 2d 1071, 1155 (D. Colo. 2006)
(evidence of indemnification obligations to defendants admissible to
prove bias or prejudice of witnesses affiliated with indemnitor).

KEY POINTS
1. Under FRE 408, 409, and 411, evidence of compromises,
offers of compromise, payment or offers to pay medical and
similar expenses, and liability insurance is not admissible to
prove liability.
2. Subject to FRE 403, such evidence may be admissible for
other purposes. The permissible purposes listed in FRE 408
and FRE 411, like the permissible purposes listed in FRE 407,
are the most common purposes for which evidence governed
by those rules is likely to be admissible, but the lists are not
exclusive.
3. When evidence is offered for a theoretically legitimate
permissible purpose, FRE 401-402 or 403 would require
exclusion if the issue is not a disputed one.

374
 PROBLEMS
6.6. Return to Problem 3.2 at page 148.
(a) Paul's mother offers to testify that shortly after the
accident she received a note from Driver with $200. The
note, which the plaintiff would like to introduce into
evidence, says: “I'm so sorry about Paul's accident. I'm
not a rich person but I hope this will help with some of the
expenses.”
(b) Plaintiff wishes to introduce evidence that, after the
lawsuit was filed, the school district offered to settle the
suit for $25,000.
(c) In cross-examining the school district's accident
reconstruction expert, plaintiff wishes to show that the
witness has a professional relationship with the School
District's liability insurance carrier.
Should any of this evidence be admitted?
6.7. While sitting in Evidence class, Dave was preoccupied with his
plans for the semester break. His hot coffee spilled on Paula,
who was sitting next to him. Paula suffered a serious burn in
the area where the coffee spilled. She sued Dave for
negligence and Espresso-to-Go, where Dave purchased the
coffee, for a defectively designed take-out cup, alleging
$50,000 in damages. Paula offers to testify as follows on direct
examination:
Q: Paula, what happened immediately after the spill?
A: Dave said he would pay for my ruined clothes.
Q: Did you ever talk to Dave about the case again?
A: Yes. After I filed this suit, Dave saw me in the hall one day
and said he was sorry I had been hurt because he had been so
clumsy and that he'd like to talk more, but he was late for class.
Then the next day he said he didn't think my case was worth
$50,000, but that he'd like to pay all my bills and give me
money for a “bar trip” after graduation.
What objections should defense counsel make to this
testimony?
6.8. Assume that Paula settles with Dave and proceeds to trial
against Espresso-to-Go.
(a) Paula calls Dave to testify about the incident and to
describe the severity of her burns. Are the following
questions by defense counsel on cross-examination
objectionable: “Isn't it true that you were sued by Paula
for your own negligence? And isn't it true that you and
Paula reached a compromise of that claim for a mere
$500? And isn't it true that Paula really dropped the suit
against you in exchange for your testimony here today?”
(b) Can Paula introduce evidence of Espresso-to-Go's
substantial liability insurance policy? Would your answer
change if, at trial, the owner of Espresso-to-Go had
mentioned during testimony (1) that its products were so
low risk that the company did not carry much insurance or
(2) that he could not afford to lose the lawsuit because he
needed everything to care for his ailing mother?
6.9. Paul Preston has sued Daniel Dripps for damages for assault
and battery after Dripps attacked Preston at their daughters'
hockey game. In a mediation session to discuss settlement,
Preston's lawyer says that Preston would settle for payment of
his medical expenses plus $5,000 if Dripps would admit he was
wrong and

375

apologize. Dripps says, “Well, I am sorry—I was in the wrong.” He

counter-offers to offer an apology and pay the medical
expenses and no more. Preston says he doubts Dripps's
sincerity about the apology. To demonstrate Dripps's sincerity,
Dripps's attorney shows Preston's attorney an entry from
Dripps's diary the day of the fight saying that he was at fault
and was sorry. Negotiations break down over the $5,000. The
day after the mediation, Preston's counsel sends out a
document request demanding production of the diary, which
the plaintiff had not known about prior to the mediation.
 Eventually, the case goes to trial. Is the following evidence
offered by Preston admissible?
(1) Dripps's statement at the mediation that he was sorry and
is in the wrong;
(2) Dripps's willingness to cover Preston's medical expenses;
(3) The entry from Dripps's diary admitting fault; and
(4) Evidence that Dripps's homeowners' insurance company
denied coverage for the alleged assault and battery on
the ground that the policy did not cover intentional
wrongful acts. (Preston argues that it shows that the
insurance company found Dripps to have acted wrongfully
and intentionally.)
Would any of your answers be different if this were a
criminal prosecution of Dripps for battery?
6.10. Pam Palmer has sued Dick Davis for injuries she received in
an automobile accident involving her car and the cars of Davis
and Walter Williams. According to the plaintiff's complaint she
was headed west on a two-lane road when Davis, who was
heading east, crossed the road into her lane of traffic and hit
her. Davis claims that he had been taking necessary evasive
action in an unsuccessful effort to avoid hitting another car that
had suddenly pulled in front of him from a side street. The
driver of the third car was Walter Williams.
Williams has testified for the plaintiff that Davis was
responsible for the accident. According to Williams, he had
been traveling east at a normal rate of speed when Davis, who
was speeding, suddenly approached from the rear. In an
unsuccessful effort to avoid hitting Williams, Davis veered to
the left, clipping the rear end of Williams's car and hitting the
plaintiff's car as well.
Davis offers to show that he had filed suit against Williams
for damage to his automobile and that Williams had paid Davis
$500 to settle the suit, in which Davis had asked for $2,000.
Should this evidence be admitted over plaintiff's objection?
6.11. Roland Nast has filed an age discrimination suit against the
Jones Hardware Co. for failing to promote him to a manager
 position and giving the job instead to a much younger
employee.
(a) Although Nast had a reputation for being a bit hotheaded
and argumentative, Jim Jones, president of Jones
Hardware, maintained during settlement negotiations that
Nast's attitude and personality had nothing to do with his
not getting the manager job. Instead, according to Jones,
the problem was Nast's tardiness record. At trial,
however, Jones testified that Nast's attitude and
personality were primary factors in the decision not to
promote him to a manager position. Can Nast introduce
Jones's settlement negotiation statements?

376

(b) To rebut the claim of discrimination, Jones Hardware

offers evidence that after Nast filed his complaint Jones
Hardware offered Nast a position at a different branch
store. This newly offered position had the same salary as
the manager salary. Should the evidence be admitted?

B. REFLECTION ON RULES 407-409, 411

Consider whether it makes sense for the Federal Rules to retain the
exclusionary mandates set forth in FRE 407-409 and FRE 411.
Commentators have pointed out, particularly with respect to FRE 407,
that it is common for proponents to be able to articulate some
alternative, permissible reason for admitting the evidence. See, e.g.,
David. P. Leonard, Selected Rules of Limited Admissibility, The New
Wigmore §2.8 (2002). To the extent that one can readily find some
alternative permissible theory for the use of evidence that is subject
to these rules, one can with good reason question the desirability of
the rules in their present form: If courts tend to resolve the FRE 403
balance between the permissible and impermissible use in favor of
admissibility (which is usually the case), and if one doubts the efficacy
of limiting instructions, the rules in fact would seem not to be serving
their designed purposes very well. Alternatively, if the FRE 403
balance were usually to come out in favor of exclusion, the rules
would be stated in a deceptively (and thus perhaps undesirably)
narrow manner: Despite the limited nature of the express
exclusionary mandates, FRE 403 concerns could make the mandates
quite broad.
Regardless of whether most decisions involving FRE 407-409 and
FRE 411 result in admission or exclusion of the evidence, it may be
that judges are simply applying the FRE 403 balancing test wisely on
a case-by-case basis. Or perhaps the inherent difficulty of balancing
and the breadth of judicial discretion lead to arbitrary and inconsistent
results from case to case. Unfortunately, we do not have enough
reliable information to assess the need for these rules. Consider, for
example, FRE 407's limitation on evidence of subsequent remedial
measures. The rule depends on assumptions regarding how the
presence or absence of the rule affects or would affect behavior—i.e.,
that the rule encourages people to make conditions safer and that its
absence would discourage such behavior—but we do not have
reliable information about whether the rule actually produces or would
produce these effects. (For further discussion of the empirical
assumptions underlying FRE 407 and the limited information
available regarding these assumptions, see Kahan, supra.)
Perhaps answers will emerge as we gain more experience and
sophistication in studying the operation of the rules of evidence in
practice. In the meantime, however, these potential problems should
not be ignored. The task of the rule drafters should be to devise the
best possible rules in light of the best available information (based on
rational choice, logic, empiricism, and intuition) as to how various
alternative formulations of the rules are likely to work in practice.

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C. WITHDRAWN GUILTY PLEAS, PLEAS OF NO CONTEST, AND

STATEMENTS MADE DURING PLEA DISCUSSIONS

1. FRE 410
 RULE 410. PLEAS, PLEA DISCUSSIONS, AND RELATED STATEMENTS

(a) Prohibited Uses. In a civil or criminal case, evidence of the following is not
admissible against the defendant who made the plea or participated in the plea
discussions:
(1) a guilty plea that was later withdrawn;
(2) a nolo contendere plea;
(3) a statement made during a proceeding on either of those pleas under Federal
Rule of Criminal Procedure 11 or a comparable state procedure; or
(4) a statement made during plea discussions with an attorney for the prosecuting
authority if the discussions did not result in a guilty plea or they resulted in a later-
withdrawn guilty plea.
(b) Exceptions. The court may admit a statement described in Rule 410(a)(3) or (4):
(1) in any proceeding in which another statement made during the same plea or
plea discussions has been introduced, if in fairness the statements ought to be
considered together; or
(2) in a criminal proceeding for perjury or false statement, if the defendant made the
statement under oath, on the record, and with counsel present.

2. Explanation of FRE 410

a. Withdrawn Guilty Pleas
Once a defendant has pleaded guilty, the defendant may withdraw
the plea only with the permission of the court. The standards for
permitting withdrawal of a plea typically are not articulated with any
degree of specificity, but there must be “cause” or some good reason
to permit the withdrawal. A court is likely to permit withdrawal of a
plea if there is reason to believe that the plea is inaccurate because
the defendant is innocent or if it appears that the defendant's rights
were violated in the process of procuring the plea. To the extent that
the concern is with the violation of the defendant's rights, exclusion
may be necessary in order to make the remedy for the violation
meaningful. If the prosecutor could respond to a withdrawn plea by
using that plea against the defendant in a subsequent proceeding,
the value of withdrawal as a remedy would often be substantially
undermined. To the extent that the concern is with the reliability of a
plea, the fact that a judge has already determined that the plea is
unreliable casts doubt on the plea's probative value.

378
 b. Pleas of No Contest
Only some jurisdictions permit pleas of no contest, and where they
are permitted the court usually must approve the pleas. Pleas of no
contest are by their nature compromises. They constitute
acquiescence to a criminal conviction without an admission of guilt or
a determination of guilt after an adjudicatory trial. Their compromise
nature makes uncertain their probative value to prove that the person
committed the acts charged. Moreover, use of no-contest pleas for
this purpose may undermine the initial value of the plea as a device
to encourage settlement. Olsen v. Correiro, 189 F.3d 52 (1st Cir.
1999).
c. Statements Made in Conjunction with the Process of Making and Negotiating
Pleas
Federal Rule of Criminal Procedure 11, to which FRE 410(a)(3)
refers, governs plea bargaining and the judicial acceptance or
rejection of guilty pleas. By specifically excluding (a) statements
made in Rule 11 plea bargaining proceedings and (b) statements
made in the course of plea bargaining with prosecutors, FRE 410(a)
(3) and (4) operate in the criminal negotiating process as the
counterpart to FRE 408's prohibition against using evidence of
attempts to settle or compromise civil claims.
As a matter of general principle, and perhaps even as a matter of
practical reality, one may question the soundness of such a rule. An
offer to plead guilty, at least if the plea is to a relatively serious
charge, may have more probative value than the offer to settle—even
for a substantial amount of money—a civil claim. Moreover, offers to
plead guilty that FRE 410 excludes usually occur in the context of
plea negotiations, and there are several reasons why settling or
compromising criminal charges may be regarded as undesirable and,
therefore, something to be deterred. First, the possibility of pleading
guilty to a charge that is substantially less severe than the crime
initially charged may have the undesirable effect of pressuring an
innocent individual to plead guilty in order to avoid the risk of possible
conviction on the more serious charge. Second, the possibility of a
plea to a lesser charge may have the arguably undesirable effect of
undermining a legislatively dictated mandatory sentence for the crime
initially charged or of limiting the range of the judge's sentencing
discretion. Finally, a consequence of encouraging or even condoning
plea bargaining is the possibility of unfairness or at least the
appearance of unfairness from what are or seem to be inconsistent
and arbitrary plea bargaining decisions from case to case by
prosecutors. This, in turn, may lead to cynicism about or disrespect
for the criminal law and perhaps undermine the force of criminal
prohibitions and penalties as general deterrents.
Despite these concerns, the Supreme Court has acknowledged that
plea bargaining is an acceptable method for disposing of criminal
cases, Santobello v. New York, 404 U.S. 257 (1971), and the reality is
that plea bargaining is pervasive in the criminal justice system.
Depending on the jurisdiction, anywhere from 70 percent to 95
percent of all criminal charges are disposed of by guilty pleas, and
many of these pleas are the result of plea negotiations. Moreover, the
criminal justice system does not have the resources to process the
current and ever increasing volume of cases without heavy reliance
on guilty pleas. Thus, as a practical matter, plea bargaining is a fact
of

379

life. In light of this reality, it may be at least as important to

encourage guilty pleas as it is to encourage settlement of civil cases.
Just as excluding statements made in conjunction with offers to settle
a civil suit may facilitate the negotiating process, excluding
statements made during plea negotiations may motivate criminal
defendants to enter into a plea bargain and plead guilty.
d. The Scope of FRE 410(a)(4)
There are two important limitations on the scope of the rule
excluding statements covered by FRE 410(a)(4). First, the statements
must be made “in the course of plea discussions.” For example, if a
defendant is merely seeking leniency in the charging decision without
suggesting any possibility of pleading guilty, a court may conclude
that the conversation is not a plea discussion. Similarly, seeking
dismissal of charges against third persons may be outside the scope
of plea negotiations, United States v. Doe, 655 F.2d 920 (9th Cir.
1980), as are statements made following the completion of plea
negotiations, United States v. Perry, 643 F.2d 38 (2d Cir. 1981).
Second, the defendant's statements must be made “to an attorney for
the prosecuting authority.”
For example, statements to police officers, who have no formal
authority to plea bargain in any event, do not fall within the FRE
410(a)(4) exclusion. United States v. Stern, 313 F. Supp. 2d 155, 167-
168 (S.D.N.Y. 2003); United States v. Brumley, 217 F.3d 905 (7th Cir.
1997). Statements made to police officers as part of the plea
negotiation, however, may be covered by the rule if the police are
acting as agents of the prosecutor. United States v. Millard, 139 F.3d
1200 (8th Cir. 1998).
Even if the statements are made to a prosecuting attorney, they
may not be protected. There is a split of authority on the question of
whether proffer sessions that explore possible cooperation with the
government but that do not include discussions of a guilty plea fall
within the FRE 410 exclusionary mandate. Compare United States v.
Morgan, 91 F.3d 1193, 1195-1196 (8th Cir. 1996) (statements not
protected) with United States v. Frank, 173 F.R.D. 59, 69 (W.D.N.Y.
1997) (statements protected). See United States v. Stein, 2005 U.S.
Dist. LEXIS 11141 (E.D. Pa.) (collecting cases).
Importantly, a defendant's statement will receive the FRE 410
protection only when he (or his attorney speaking as an agent) has a
subjective belief that plea negotiations with a prosecuting authority
are taking place and that belief is objectively reasonable. United
States v. Olsen, 450 F.3d 635 (7th Cir. 2006); United States v.
Sayakhom, 186 F.3d 928 (9th Cir. 1999); United States v. Bridges, 46
F. Supp. 2d 462 (E.D. Va. 1999) (collecting cases).
e. The FRE 410(b) Exceptions
The two enumerated exceptions in FRE 410(b) will rarely be of
consequence. The first exception merely acknowledges the rule of
completeness encompassed in FRE 106. For example, if a defendant
introduces part of a statement made in conjunction with plea
negotiations, the prosecution can introduce other statements that
provide a context or explanation for the statement introduced by the
defendant. The second exception in effect permits the prosecution to
bring perjury charges against

380

a defendant who lies under oath during plea negotiations. Perjury

prosecutions are relatively rare, however; and in any event, plea
negotiations are seldom carried out under oath.
f. Waiver of FRE 410's Exclusionary Mandate
In United States v. Mezzanatto, 513 U.S. 196 (1995), the Supreme
Court held that a defendant may waive the FRE 410(a)(4)
exclusionary mandate with regard to the impeachment use of
statements made in the process of plea negotiations as part of an
agreement with the prosecutor in which the defendant obligated
himself to reveal the truth. In Mezzanatto, the prosecutor, at the
outset of plea discussions with the defendant and his counsel
required the defendant to undertake to tell the truth and insisted on
the right to be able to use the defendant's statements against him for
impeachment purposes in the event of a trial. Mezzanatto agreed to
this waiver, and during the plea discussions he made some
incriminating statements. The prosecutor, however, terminated the
plea negotiations for reasons that included false statements that
Mezzanatto had made. The case proceeded to trial. Mezzanatto
testified, and over his objection the prosecution introduced into
evidence some of Mezzanatto's plea bargain statements to impeach
his testimony. In his opinion for the Court, Justice Thomas rejected
the defendant's claims that waiver was inconsistent with the purpose
of FRE 410 and that the possibility of waiver provided potential for
prosecutorial overreaching. Moreover, Justice Thomas suggested
that the waiver would be valid even if it were not limited to the
impeachment use of the statements. Only Chief Justice Rehnquist
and Justice Scalia expressed agreement with this dictum.
 Nonetheless, several federal circuits have extended Mezzanatto by
upholding waivers that allow prosecutors to use FRE 410 evidence
substantively to rebut any contrary evidence offered by the
defendant, United States v. Hardwick, 544 F.3d 565 (3d Cir. 2008);
United States v. Velez, 354 F.3d 190, 196 (2d Cir. 2004); United
States v. Rebbe, 314 F.3d 402 (9th Cir. 2002); United States v. Krilich,
159 F.3d 1020 (7th Cir. 1998); or even substantively in their cases-in-
chief: United States v. Mitchell, 633 F.3d 997 (10th Cir. 2011); United
States v. Sylvester, 583 F.3d 285 (5th Cir. 2009); United States v.
Young, 223 F.3d 905 (8th Cir. 2000); United States v. Burch, 156 F.3d
1315 (D.C. Cir. 1998). Importantly, a defendant's Mezzanatto waiver
is held to be effective only when it is drafted in unambiguous terms:
United States v. Escobedo, 757 F.3d 229 (5th Cir. 2014).
Consider the effects of the Mezzanatto decision. It seems likely that
at least some defendants will be unwilling to enter into plea
negotiations if prosecutors demand waivers. Of course, prosecutors
could choose to forgo the demand in some or all of those cases. If a
demand for waiver becomes the standard prosecutorial policy,
however, there may well be a net decrease in the number of
defendants willing to enter into plea negotiations. On the other hand,
the Mezzanatto waiver allows defendants to credibly commit
themselves to telling the truth in plea bargain discussions. If the
waiver were ineffectual, the defendants would have suffered no
penalties for lying. Their promise to tell the truth would consequently
be “cheap talk” that prosecutors cannot rationally trust. Facing this
predicament, prosecutors would tend to steer

381

away from plea bargains that could benefit both sides. The
Mezzanatto waiver thus produces a socially beneficial sorting effect:
It facilitates plea bargains between prosecutors seeking to obtain
truthful statements from defendants and defendants willing to commit
themselves to providing those true statements. See Eric B.
Rasmusen, Mezzanatto and the Economics of Self Incrimination, 19
Cardozo L. Rev. 1541 (1998).
 KEY POINTS
1. FRE 410(a)(1) and (2) provide that a defendant's withdrawn
guilty pleas and pleas of nolo contendere are not admissible
against the defendant.
2. FRE 410(a)(3) provides that a defendant's statements made
during a judicial plea-acceptance proceeding are not
admissible against the defendant if the guilty plea was
withdrawn or was a plea of no contest.
3. FRE 410(a)(4) provides that a defendant's statements made
during plea discussions are not admissible against the
defendant. According to the language of FRE 410(a)(4),
statements qualify for exclusion only if they are made (a) to a
prosecuting attorney, (b) during plea discussions, and (c) the
discussion failed to result in a guilty plea or it resulted in a plea
that was later withdrawn.
4. In determining whether the “plea discussions” and “attorney for
the prosecuting authority” requirements are satisfied, courts
consider the matter from the defendant's perspective. The
defendant's statement will be excluded only if he had a
subjective belief that he was engaging in plea discussions with
a prosecuting attorney and if that belief was objectively
reasonable.
5. Defendants may waive the right not to have plea bargaining
statements used against them, at least for impeachment
purposes (the “Mezzanatto agreement”).

PROBLEMS
6.12. Attorney Yvonne Gruber heard a rumor that her client, Dawn
Carson, was about to be indicted for income tax evasion. On
behalf of Carson, Gruber spoke with an assistant U.S. Attorney
about the possibility of a plea bargain. In response to a
 question, Gruber acknowledged that her client would be willing
to plead guilty to a relatively minor charge. There were no
further discussions, and Carson was eventually indicted for
income tax evasion. Can the prosecution use Gruber's
statement about Carson's willingness to plead guilty? Would
your answer be different if Gruber had contacted the IRS and
had the conversation with an IRS agent?
6.13. In the course of plea negotiations with an assistant U.S.
Attorney, Tom Mason, after acknowledging that he sold heroin
on three specific occasions, entered into a cooperation
agreement. According to the agreement, Mason would not

382

be prosecuted if he helped the police develop evidence against his

supplier. Mason reneged on the agreement and is now being
prosecuted for sale of heroin. During its case in chief the
prosecution offers Mason's statement about selling heroin.
Should Mason's objection be sustained? Does you answer
depend upon whether the cooperation agreement contained a
waiver of Mason's FRE 410 rights?
6.14. Return to Problem 3.2 at page 148. Assume that Driver was
charged with reckless driving, a misdemeanor, as a result of
the accident with Paul. Driver is grief stricken and has no
interest in fighting the charge. Moreover, she is worried that if
she seriously contests the ticket and is found guilty, the penalty
may be stiffer than if she pleads guilty. If Driver pleads guilty,
however, the plea can be used against her in a civil suit. The
jurisdiction does not permit nolo pleas. What advice can you
give her?

ASSESSMENTS
A-6.1. FRE 410. A criminal defendant made a plea bargain agreement with the prosecution
in which he acknowledged his participation in a criminal enterprise and named his
accomplices. The agreement entitles the prosecution to rescind it and use the defendant's
confession as evidence against him if it turns out that the defendant lied about any of the
accomplices.
A. This agreement is void because it violates the Fifth Amendment (but not FRE 410).
B. This agreement is void because it violates FRE 410 (but not the Fifth Amendment).
C. Under the prevalent view, this agreement is valid, but the prosecution can use the
defendant's self-incriminating statement for impeachment purposes only.
D. Under the prevalent view, this agreement is valid and the prosecution can use the
defendant's self-incriminating statement for any purpose to which it is relevant.
A-6.2. FRE 407. Hospital patient P fell on the floor and broke her hip when she tried to step
down from an MRI machine. Following this event, the hospital appointed a committee of
safety experts that recommended requiring MRI technicians to help patients step down. P's
tort suit against the hospital goes to trial in a federal court. P subpoenas one of the safety
committee members to testify about the committee's findings and recommendation. The
hospital objects.
A. The court must sustain this objection.
B. The court must overrule this objection.
C. Pursuant to FRE 403, the court ought to use its discretion and sustain the hospital's
objection.
D. More information is needed to properly deal with this objection.

383
A-6.3. FRE 407. To prove that the elevator in D's store was unsafe on the day of the
accident, P testifies that D had it fixed the day after the accident. P's testimony is clearly
inadmissible. TRUE or FALSE?
A-6.4. FRE 408-09. P sues D in tort. To prove that she tried to mitigate her damage, P
testifies that she offered D to settle the case by agreeing to pay her medical expenses.
A. P's testimony should be excluded pursuant to FRE 409.
B. P's testimony should be excluded pursuant to FRE 408.
C. P's testimony should be excluded pursuant to FRE 403.
D. P's testimony is admissible.

A. 6.5. FRE 411. Car accident victim V sues O for negligently

entrusting his vehicle to unlicensed driver D, who caused the
accident. O claims that he did not own the vehicle. To support this
claim, O produces a car-sale agreement naming D as the purchaser
of the vehicle. For her part, V offers into evidence a liability insurance
policy purchased by O. The policy names O as the owner of the
vehicle and covers his liability for accidents up to $2,000,000.
The proffered insurance policy is:
A. Clearly admissible.
B. Clearly inadmissible.
C. Facially admissible, but most courts exclude such evidence to avoid prejudicing the
jury, pursuant to FRE 403.
 D. Potentially admissible, but more information is needed to answer this question.

ANSWERS
A-6.1. The best answer is D, as per United States v. Mezzanatto, 513 U.S. 196 (1995),
discussed earlier on page 380-381.
A-6.2. The best answer is D. Under FRE 407, remedial measures do not include internal
investigations and recommendations when these are merely initial steps toward ascertaining
what, if any, remedial measures are called for. However, expert recommendations that the
organization will likely implement are remedial measures that fall under the FRE 407
exclusionary mandate. See supra page 361. The court therefore needs to ascertain the
likelihood of the hospital's acting upon the committee's recommendations.
A-6.3. TRUE. This is a straightforward application of the FRE 407 ban on subsequent
remedial measures evidence, however probative of negligence it might be.
A-6.4. The best answer is D. P's testimony is admissible because it falls under the “another
purpose” exception to the FRE 408's ban on settlement negotiation evidence. P's testimony
purports to show that she attempted to mitigate her injury and not that D implicitly
acknowledged its liability by agreeing to negotiate a settlement. Hence, B is false. A is false
as well because FRE 409 only excludes a defendant's

384
offer—as opposed to a plaintiff's request—to pay the injured party's medical expenses. P's
testimony also does not purport to prove “liability for the injury.” Rather, it negates the
“avoidable consequence” exception to the defendant's potential liability, which P must
establish independently. C is false, too, because P's testimony is probative and has no
prejudicial effect since it attributes no acknowledgment of fault to D.
A-6.5. The best answer is A. The proffered insurance policy falls under the “another purpose”
provision of FRE 411 that explicitly lists “ownership” as an admissible purpose.
385

CHAPTER SEVEN
THE IMPEACHMENT AND
REHABILITATION OF WITNESSES
Many trials turn on the question of credibility. The rules of evidence
considered in this chapter establish the framework within which the
parties may present evidence of witnesses' credibility to the jury.
Many of the issues and techniques discussed in this chapter will also
apply to impeaching and rehabilitating the credibility of hearsay
declarants (i.e., those who make statements out of court that are
admitted as evidence at trial). See FRE 806. We discuss the
impeachment of hearsay declarants in Chapter Eight.

386

A. BASIC CONCEPTS

1. Impeachment: The Inferential Process

a. The Testimonial Inferences
The strength and accuracy of any witness's testimony depends
upon certain testimonial abilities: A witness must be able to observe
events, to remember them, and to relate them honestly and
accurately. The jury must make inferences about these abilities—the
ability to narrate accurately, to be honest, to perceive, and to
remember—in order to credit the truth of what a witness says. For
example, when a witness testifies, “The defendant's car ran the red
light,” the jury, in crediting this testimony, must infer that (1) the
witness is communicating that the defendant was driving a car that
did not stop at a red light; (2) the witness believes this assertion; (3)
the witness's belief is based on the witness's accurate perception of
what happened; and (4) the witness accurately remembers what
happened.
Diagram 7-1 illustrates these inferences. If any of the inferences in
the diagram is false, the evidence is not relevant to prove that the
defendant did not stop at the red

387

light. To help ensure that they are not false, the law requires
witnesses to testify from firsthand knowledge (FRE 602) and to affirm
that they will testify truthfully (FRE 603). For several reasons,
however, the law does not generally require the proponent of
evidence to make any other special showing regarding the accuracy
of these inferences as a condition of admissibility. First, although
there are obvious exceptions, our common experience tells us that
people tend to be honest and accurate in most situations. (Consider
the chaos in which we would live if the foregoing statement were not
generally true.) Second, typically witnesses will testify to general
background information about their residences and occupations,
which will provide some minimal personal information for the jury to
consider in assessing the strength of the inferences. Third, in the
Anglo-American legal system, the task of assessing the accuracy of
these inferences traditionally has been one for the jury rather than the
judge. Finally, opposing counsel will have the opportunity to try to
raise doubts about the strength of these inferences.

b. Types of Impeachment Evidence

Impeachment is the process of trying to raise doubts about the

inferences illustrated in Diagram 7-1. It is, in other words, an attempt
to show that a witness may have inadvertently narrated the events
incorrectly, lied, misperceived the events about which the witness
testified, or forgotten some or all of what happened. To the extent that
the jury believes the impeaching evidence, the jury should conclude
that what the witness said is less likely to be accurate than if there
had been no impeaching evidence.
If the witness has offered an opinion or conclusion about some
matter, there is a further impeachment concern. Consider, for
example, a witness's testimony that the defendant was drunk. Even if
the witness is sincere, is using the term drunk in a commonly
understood sense, correctly perceived the events, and recalls them
accurately, the witness may have misevaluated the defendant's
symptoms and used erroneous generalizations for either of two
reasons. First, the witness may not be a very good judge of
drunkenness. For example, the witness may have associated loud,
boisterous talk with drunkenness without realizing that the defendant
always speaks in a loud, boisterous manner. Second, the defendant's
symptoms, although indicative of drunkenness, may in fact have had
some other source. The impeaching party may suggest both of these
possibilities to the jury, and the jury may then tend to disregard the
witness's opinion.
There are a variety of ways to impeach a witness:
(1) Evidence that a witness has a character trait for untruthfulness
suggests that the witness may be untruthful on the witness
stand.
(2) Showing that the witness has a bias or interest in the case
suggests a motive for being untruthful.
(3) Attacks on other testimonial qualities such as the witness's
narrative or perceptive abilities may also undermine a witness's
credibility. Such attacks may focus on general abilities (e.g.,
color blindness) or on the specific exercise of those abilities on
the occasion relevant to the case (e.g., witness not wearing
glasses at time event observed).

388
(4) Proof of a witness's inconsistent statements suggests that the
jury should be skeptical about the accuracy of the witness's
testimony.
(5) Testimony from other sources that contradicts the witness may
reduce the witness's believability.
c. Impeachment Evidence versus Substantive Evidence

Evidence offered to impeach the credibility of a witness—like all

other evidence that is admitted—must be relevant to prove or
disprove some fact that is of consequence to the litigation. If it were
not, the impeachment evidence would be inadmissible pursuant to
FRE 402. The difference between evidence offered for
“impeachment” purposes and evidence offered for “substantive”
purposes is in the relevance theory that leads to a fact of
consequence.
The evidentiary facts discussed in this chapter relate to essential
elements of a case because they may influence the jury's evaluation
of witnesses. Sometimes evidence that impeaches the credibility of
witnesses will also be relevant and admissible as substantive
evidence of an essential element. When this is the case, there is no
need to consider whether the evidence is admissible to impeach a
witness because the evidence will already be admitted for its
substantive purpose (i.e., as evidence that makes a fact of
consequence more or less probable independent of its effect on the
credibility of a witness). In other words, evidence must be analyzed
for its impeachment purpose only when it is inadmissible for a
substantive purpose, which will often be the case. Here are three
examples to illustrate these points:
(1) In the case of a bank robbery, the teller who handed money over
to the robber may testify that the defendant was not the robber.
Other witnesses, customers in the bank, may identify the
defendant as the robber. A police officer may establish that the
teller is the sister of the defendant. The testimony of the
customers contradicts—and therefore implicitly impeaches—the
credibility of the teller (and vice versa), but each witness's
 testimony is also independently admissible on the substantive
question of the robber's identity. The testimony of the police
officer is not independently admissible for a substantive
purpose; its only relevance is to impeach the credibility of the
teller by showing bias.
(2) In the running-the-red-light hypothetical, the defendant wishes to
impeach the plaintiff's witness with the witness's prior
inconsistent statement, not made under oath, that the light was
green when the defendant entered the intersection. Because of
the hearsay rule, the prior statement is inadmissible as
substantive evidence that the light was green. FRE 801(d)(1)(A).
The defendant, however, may use the prior inconsistent
statement, without regard to its truth, to infer that the witness's
direct examination testimony is not accurate. Knowing that the
witness has made inconsistent statements about the same
subject, regardless of which statement is true, casts some doubt
on the witness's credibility. On one of the two occasions the
witness may have been lying; at the very least, the
inconsistency shows that the witness is not particularly careful
about narrating the events of the accident.

389

(3) Della Dean is charged with perjury and testifies in her own
defense. To impeach the truthfulness of Della's testimony, the
prosecution offers evidence that Della was convicted of perjury
two years ago. It would be impermissible under FRE 404 to
introduce evidence of past perjury to prove that Della committed
perjury on the occasion charged in the current indictment.
Because Della has testified as a witness, however, it will be
permissible to introduce her prior conviction in order to impeach
her character for truthfulness. FRE 609(a). The inferential
process is as follows: Because Della has committed perjury, she
is a generally untruthful person, who may be lying on the
witness stand.
 Evidence admitted for the purpose of impeaching the credibility of a
witness will sometimes not be admissible for a substantive purpose—
either because it would be irrelevant, as in the first hypothetical, or
because some exclusionary rule (e.g., the hearsay rule or FRE
404(b)) would prohibit its substantive use, as in the latter two
hypotheticals. When evidence is not admissible for a substantive
purpose, you must also evaluate whether it may be admitted for an
impeachment purpose.
When evidence is admissible only to impeach the credibility of a
witness, the limited admissibility has three significant consequences.
First, the proponent of the evidence cannot rely on that evidence as
substantive evidence to satisfy a burden of production in response to
a motion for summary judgment or judgment as a matter of law.
Second, the proponent cannot rely on the evidence as substantive
proof of disputed facts during closing argument. Third, whenever the
evidence is relevant but inadmissible for a substantive purpose, the
party against whom the evidence is offered can make an FRE 403
objection and, if the evidence is admitted, is entitled to a limiting
instruction. Consider, for example, the hypothetical in which the
defendant introduced evidence that a plaintiff's witness had made an
inconsistent statement about whether the defendant ran the red light:

The defendant could not rely on the substance of the

inconsistent statement to support the production burden on the
question of contributory negligence.
If the case went to the jury, the defendant could argue that the
inconsistency suggested the witness was mistaken or lying about
the color of the light, but the defendant could not argue that the
statement was a truthful assertion that the light was green for the
defendant.
The plaintiff would be entitled to an instruction that the jury could
use the statement only to assess the witness's credibility, not as
substantive evidence of the color of the light.

Do you think jurors are likely to be able to understand or follow a

limiting instruction? If not, would it be desirable either (1) to exclude
the evidence altogether on FRE 403 grounds or (2) to forgo the
limiting instruction?

2. “Extrinsic Evidence” and Impeachment

One can impeach a witness (1) by examining (usually cross-
examining) the witness and (2) by introducing extrinsic evidence.
Extrinsic evidence means any evidence

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other than that developed through direct or cross-examination of the

witness. It may be an exhibit, such as a record of a prior conviction,
or the testimony of another witness that impeaches the first witness
by showing, for example, bias or an inconsistent statement that the
first witness denied making.
As we discuss various impeachment techniques, we will consider
the extent to which the impeachment rules permit extrinsic evidence.

3. “Rehabilitating” versus “Bolstering” Evidence

When a witness has been impeached, the nonimpeaching party may
respond with evidence that attempts to counter or undue the
impeachment evidence. For example, if one side impeaches a
witness with evidence that the witness has an untruthful character,
the opposing party may respond with evidence purporting to prove
that the witness is a truthful person. Evidence that rebuts
impeachment evidence is known as “rehabilitation” evidence. The
relevance of such evidence is the opposite of impeachment evidence
—rehabilitation evidence is relevant because it makes it less likely
that the witness's testimony has the testimonial problems that were
the subject of impeaching evidence. Just as impeachment may relate
to any of the four testimonial problems (narration, sincerity,
perception, or memory), rehabilitation evidence may likewise be
relevant for any of these issues.
Parties may also attempt to introduce evidence that purports to
make a witness's testimony more believable when the witness has
not been impeached. Such evidence is known as “bolstering” the
credibility of a witness and is generally disfavored. A general common
law rule prohibited bolstering evidence. See, e.g., United States v.
Bolick, 917 F.2d 135, 137-140 (4th Cir. 1990) (referring to a general
ban on preimpeachment bolstering: “We are among the courts to
adhere to that time-honored principle.”); United States v. Wells, 623
F.3d 332, 345 (6th Cir. 2010) (“By prematurely calling attention to
prior consistent statements in the opening statement, a prosecutor
creates the chance of mistrial and an issue for appeal.”). The Federal
Rules contain provisions that prohibit bolstering with character
evidence, FRE 608(a), and with prior consistent statements, FRE
801(d)(1)(B). Other types of bolstering evidence are governed by
FRE 403.

B. IMPEACHMENT AND REHABILITATION WITH CHARACTER

EVIDENCE

In Chapter Five we considered evidentiary restrictions on the

substantive use of character evidence. We noted that one of the FRE
404(a) exceptions to the general prohibition against using character
evidence to show action in conformity with character was the use of
character evidence for impeachment and rehabilitation. FRE 404(a)
(3). It is to this subject that we now turn. We are concerned here with
using evidence of a witness's character for truthfulness to infer action
in conformity with that character trait on a particular occasion (i.e., to
infer that the witness is either lying or telling the truth on the witness
stand). FRE 608 refers to a witness's “character for

391

truthfulness or untruthfulness.” Unless the context suggests a

contrary meaning, our use of the term truthfulness includes both
truthfulness and untruthfulness.
The rules governing impeachment and rehabilitation with character
evidence, as well as the rules governing other forms of impeachment
and rehabilitation evidence, apply to all witnesses and to all kinds of
cases. With some minor exceptions that we will discuss in due
course, it makes no difference whether the witness happens to be a
party. A party may use character evidence to impeach a witness in
civil as well as criminal trials, and criminal defendants do not have the
option to keep the door closed to inquiries about any witness's
character for truthfulness.
Because the rules governing the use of character evidence for
impeachment purposes (FRE 404(a)(3), 608, and 609) are different
from the rules governing character evidence for substantive purposes
(FRE 404(a)(1) and (2), 404(b), and 405) and because both sets of
rules are intricate, the general subject of character evidence may
seem confusing. The best way to eliminate the confusion is to focus
initially on what should always be the first question: How is the
evidence relevant? Once you answer this question, it should be
relatively easy to apply the proper rules.

1. FRE 608
RULE 608. A WITNESS'S CHARACTER FOR TRUTHFULNESS OR
UNTRUTHFULNESS

(a) Reputation or Opinion Evidence. A witness's credibility may be attacked or

supported by testimony about the witness's reputation for having a character for
truthfulness or untruthfulness, or by testimony in the form of an opinion about that
character. But evidence of truthful character is admissible only after the witness's
character for truthfulness has been attacked.
(b) Specific Instances of Conduct. Except for a criminal conviction under Rule 609,
extrinsic evidence is not admissible to prove specific instances of a witness's conduct in
order to attack or support the witness's character for truthfulness. But the court may, on
cross-examination, allow them to be inquired into if they are probative of the character
for truthfulness or untruthfulness of:
(1) the witness; or
(2) another witness whose character the witness being cross-examined has testified
about.
By testifying on another matter, a witness does not waive any privilege against self-
incrimination for testimony that relates only to the witness's character for truthfulness.

2. Explanation of FRE 608(a)

a. Reputation and Opinion Evidence to Prove Character for Untruthfulness
 One method to impeach a witness is with reputation or opinion
evidence offered to prove the witness's character for untruthfulness in
order to suggest that the witness

392

is lying on the witness stand. For example, in the Johnson case the
defendant could have called witnesses to testify that Officer Huston
(or any other prosecution witness) had a reputation for being
untruthful. FRE 608(a) permits both reputation and opinion evidence
of character for untruthfulness. The process of eliciting reputation or
opinion testimony from a character witness pursuant to FRE 608(a) is
identical to the process described in Chapter Five, where we dealt
with the use of reputation and opinion evidence for substantive
purposes. For a review of the foundation requirement and a
discussion of why opinion witnesses should not be permitted to set
forth the factual bases for their opinions, see pages 316-19, supra.
FRE 608(a) limits the use of reputation or opinion evidence to
“character for truthfulness or untruthfulness.” This limitation
repudiates the position of a few jurisdictions, which have permitted
parties to impeach witnesses with evidence of general bad character
or bad moral character. According to the Advisory Committee Note:
In accordance with the bulk of judicial authority, the inquiry is strictly limited to character
for veracity, rather than allowing evidence as to character generally. The result is to
sharpen relevancy, to reduce surprise, waste of time, and confusion, and to make the lot
of the witness somewhat less unattractive.

After a witness's character for truthfulness has been attacked, the

opposing party may then rehabilitate the witness by introducing
evidence regarding the witness's good character for truthfulness. Just
as the impeaching evidence is offered to suggest the witness is lying
on the witness stand, the rehabilitation evidence is offered to suggest
the witness is being sincere on the witness stand.
b. The FRE 608(a) Limitation on Evidence of Good Character for Truthfulness
According to FRE 608(a) reputation or opinion testimony regarding
a witness's good character for truthfulness is not admissible until the
witness's character has been “attacked.” It is not entirely clear,
though, what kind of impeachment constitutes an attack on character
for truthfulness. Courts traditionally have regarded impeachment by
showing prior convictions, FRE 609, or bad acts that did not result in
convictions, FRE 608(b), as an attack on a witness's character. Thus,
rehabilitation with reputation or opinion evidence would be
appropriate. For example, since the prosecution in the Johnson case
impeached the credibility of both inmate Michael Green and the
defendant with evidence of prior convictions (page 55, lines 20, 34;
page 61, line 30, supra), it would have been permissible for the
defendant to call witnesses who would offer their opinions that Green
and Johnson were truthful individuals. On the other hand, courts have
declared that some prior acts are not relevant to attack a witness's
character for truthfulness. See United States v. Holden, 557 F.3d 698,
702 (6th Cir. 2009) (“As a general matter, prior drug use is not
relevant to a witness's character for truthfulness.”).
Although proof of bias may suggest that a witness is not testifying
truthfully, courts generally regard proof of a witness's bias as not
being an attack on the witness's character for truthfulness. United
States v. Figueroa, 548 F.3d 222 (5th Cir. 2008) (cross-examining
witness about swastika tattoos relevant to bias toward defendant not

393

character for untruthfulness). For example, in the Johnson case, if

the prosecution could have established that Johnson and his cellmate
belonged to the same gang (page 49, line 32, supra), this evidence
would show the cellmate's possible bias but not the cellmate's bad
character for truthfulness. Similarly, proof in a civil case that a witness
for the plaintiff had recently gone through an acrimonious, contested
divorce with the defendant suggests that the witness may be biased
against the defendant but not that the witness is a generally untruthful
person. Thus, FRE 608(a) would not permit Johnson or the defendant
in the civil action to rehabilitate the impeached witness by offering
opinion or reputation evidence of that witness's good character for
truthfulness. Depending on the circumstances of the case, however,
some evidence of bias may also constitute an attack on the witness's
character, thus permitting FRE 608(a) rehabilitation evidence. See,
e.g., United States v. Medical Therapy Sciences, Inc., 583 F.2d 36, 41
(2d Cir. 1978) (evidence of corrupt conduct by a witness that
indicates bias, such as embezzling money, may also constitute an
attack on witness's character for truthfulness). The key inquiry is
whether the evidence of bias also suggests that the witness has a
character for untruthfulness.
Sometimes there will be disagreement about how to categorize the
impeaching evidence. For example, recall in the Johnson case that
defense counsel on cross-examination of Officer Huston suggested
Huston's alleged injury in the altercation with Johnson was fabricated
because of the workers' compensation rules (page 21, line 4, supra).
This inquiry suggests a particular bias or motive to lie. Does it also
impugn Huston's character for truthfulness, so that the prosecution
could have responded with FRE 608(a) character witnesses to testify
about Huston's reputation for truthfulness? See if you can articulate a
difference between character and bias that justifies different treatment
under FRE 608(a).

KEY POINTS
1. FRE 608(a) permits a party to impeach the credibility of a
witness by offering extrinsic evidence in the form of opinion or
reputation testimony about the witness's character for
untruthfulness. The evidence must focus on untruthfulness,
not general moral character.
2. FRE 608(a) permits reputation or opinion evidence offered to
prove a witness's good character for truthfulness only after the
opposing party has attacked the witness's character for
truthfulness.

PROBLEMS
7.1. Darby is being prosecuted for the armed robbery of a liquor
store proprietor. During the presentation of the prosecution's
case the proprietor made a positive identification of Darby as
the robber. As part of the defense, Darby calls Sue Williams to
testify that the proprietor has a reputation in the community for
lying. Is the evidence admissible?

394

7.2. In the same case, another defense witness offers to testify that
the proprietor has a reputation in the community for not
remembering faces and for misidentifying people. Is the
evidence admissible? Would your answer be different if the
witness offered to testify that on the basis of her experience
with the proprietor she is of the view that the proprietor has
difficulty remembering faces and often misidentifies people?
7.3. Harper was arrested for sale of cocaine and accepted the
government's offer to cooperate in obtaining evidence against
his supplier. Harper identified Ellsworth as the supplier, and
Ellsworth was eventually charged with sale of cocaine. At
Ellsworth's trial, Agent Fowler, who was in charged of the
investigation, testified that Harper had delivered what was in
fact cocaine to him, and Harper testified that he had obtained
the cocaine from Ellsworth. During the cross-examination of
Harper, defense counsel elicited information about Harper's
cooperation with the police. During the cross-examination of
Agent Fowler, defense counsel elicited that Harper had three
independent sources for cocaine. On redirect of Agent Fowler,
the prosecutor asks:
(a) Do you believe Mr. Harper received the cocaine involved
in this case from a source other than the defendant,
Ellsworth?
(b) In your opinion is Mr. Harper's testimony in this case
truthful?
(c) In your opinion is Mr. Harper a truthful person?
 How should the court rule on Ellsworth's objections to these
questions? Would any of your answers be different if defense
counsel had referred to Harper as a liar in the opening
statement? If defense counsel had elicited from Harper on
cross-examination that two years ago he was convicted of
embezzlement?
7.4. Dan Dickson is charged with perjury and testifies in his own
behalf. The prosecutor's cross-examination fails to shake
Dickson's story or cast doubt on his credibility. Dickson then
offers the testimony of Willa Wilson that Dickson has a good
reputation in the community for truthfulness. Is Wilson's
testimony admissible?

3. Explanation of FRE 608(b)

FRE 608(b) provides:

(b) Specific Instances of Conduct. Except for a criminal conviction under Rule 609,
extrinsic evidence is not admissible to prove specific instances of a witness's conduct in
order to attack or support the witness's character for truthfulness. But the court may, on
cross-examination, allow them to be inquired into if they are probative of the character
for truthfulness or untruthfulness of:
(1) the witness; or
(2) another witness whose character the witness being cross-examined has testified
about.
By testifying on another matter, a witness does not waive any privilege against self-
incrimination for testimony that relates only to the witness's character for truthfulness.

395
a. The Prohibition Against the Use of Extrinsic Evidence
FRE 608(b) prohibits the use of extrinsic evidence of a witness's
specific acts to support or attack the witness's character for
truthfulness. FRE 608(b) and a majority of states, however, do permit
inquiry into (1) a witness's own acts during the examination of that
witness, and (2) the acts of “another witness whose character the
witness being cross-examined has testified about.” The prohibition
against the use of extrinsic evidence means that the examiner is
bound by the answer of the witness; the impeaching party cannot
introduce extrinsic evidence to contradict the witness. For example, in
the Johnson case, defense counsel could have asked Officer Huston
if he lied on his job application form. If Huston denied lying, however,
defense counsel could not prove the lie by introducing the job
application form, which would be extrinsic evidence, and then proving
with other extrinsic evidence that the information contained on the
form was false. Similarly, if another witness had testified that Huston
had a good reputation for truthfulness, then that witness could be
asked on cross-examination whether he knew Huston had lied on the
job application form. However, defense counsel could not prove the
lie with extrinsic evidence.
Not permitting the examiner to challenge the witness's answer with
extrinsic evidence of bad character for truthfulness may sometimes
appear unfair. For example, in our hypothetical in which Officer
Huston denies that he lied on his job application form, assume that
defense counsel is prepared to authenticate the job application form
and to call ten witnesses who will testify that the facts stated in the
application are false. What could be better impeaching evidence than
this extrinsic proof that the witness had lied not only on the job
application form but also on the witness stand?
There may be no more relevant or more effective impeachment. But
fairness dictates that if the impeaching party is allowed to introduce
the extrinsic evidence, the party whose witness was impeached
should have an opportunity to counter that evidence. It may be, for
example, that the job application form is a forgery, that the statements
on the job application are reasonably subject to more than one
interpretation, or that the witnesses who would testify that Officer
Huston lied on the application are themselves dishonest. And if that
opportunity exists, a substantial amount of time and energy could be
devoted to litigating the truth or falsity of facts whose only value is to
impeach the credibility of a witness. Moreover, there would be the
potential for this type of minitrial with every witness. Thus, while it
may be true that catching the witness in a lie on the stand would be
extremely effective impeachment, FRE 608(b), out of concern with
the time and distraction that could result from litigating collateral
matters, prohibits the impeaching party from introducing extrinsic
evidence to prove the lie.
b. The Limited Scope of Permissible Inquiry
FRE 608(b) is consistent with FRE 608(a) in that the specific acts
must relate to character for truthfulness. See, e.g., United States v.
Holden, supra (witness's prior marijuana use is not relevant
impeachment evidence under 608(b)). This rule is considerably
narrower than the rules in some state jurisdictions, which permit
inquiry into acts relevant to prove a generally bad moral character.

396
c. No Fifth Amendment Waiver

Because of the centrality of cross-examination to our adversary

system, the giving of testimony by a witness is regarded as a waiver
or forfeiture of the witness's Fifth Amendment right against self-
incrimination, at least with respect to the subject matter of the
witness's direct examination testimony. The last sentence of FRE
608(b) makes it clear that testifying is not a waiver of the privilege
with respect to questions that are permissible only to undermine the
witness's credibility. Consider, for example, our hypothetical question
about whether Officer Huston had lied on his job application form. If
making false statements on the form were a crime, Officer Huston
could rely on the Fifth Amendment to refuse to answer.
d. The Scope of 608(b)(1): Questioning Witnesses About Their Own Specific Acts

The Meaning of Untruthfulness. Although the Advisory Committee

Note to FRE 608(b) makes it clear that the terms truthfulness and
untruthfulness are intended to limit the types of specific acts about
which one may inquire, there is not uniform agreement about the
scope of the limitation. At the extremes, courts tend to find that
perjury or other instances of making false statements suggest
untruthfulness, United States v. Velarde, 485 F.3d 553 (10th Cir.
2007) (prior false accusations by witness); United States v. Jensen,
41 F.3d 946 (5th Cir. 1994) (submission of false tax return and false
loan documents to obtain loan); see also United States v. Torres, 569
F.3d 1277 (10th Cir. 2009) (prosecution witness's prior breach of
agreement with DEA relevant under FRE 608(b)), and that acts of
violence (e.g., murder, destruction of property) or drug crimes do not
suggest untruthfulness, United States v. Geston, 299 F.3d 1130, 1137
(9th Cir. 2002) (violent conduct while under influence of alcohol not
probative of untruthfulness); United States v. Wilson, 344 F.2d 1208
(10th Cir. 2001) (drug crimes not probative of truth or untruth). There
is, however, a gray area where courts sometimes reach seemingly
inconsistent results. Compare, e.g., United States v. Wilson, 985 F.2d
348, 352 (7th Cir. 1993) (bribery probative of untruthfulness) with
United States v. Rosa, 891 F.2d 1063, 1069 (3d Cir. 1989) (bribery
“not the kind of conduct which bears on truthfulness or
untruthfulness”).
Questions about Arrests, Charges, and Administrative or
Judicial Findings. Sometimes an impeaching party will have
evidence that a witness was arrested or charged with some offense
relating to untruthfulness or that an administrative or judicial body has
found that a witness behaved in a manner indicating untruthfulness.
For example, the witness may have been arrested for or charged with
falsifying loan documents; the witness may have been disbarred for
deceitful conduct; or a judge in an earlier proceeding may have
implicitly or explicitly found that the witness had lied. In these
situations FRE 608(b) permits the impeaching party to ask about the
underlying conduct—whether the witness in fact falsified documents,
engaged in deceitful conduct, or lied in an earlier proceeding. But
what about asking whether the witness

397

was arrested or charged with falsifying documents, whether the

witness was disbarred for the deceitful conduct, or whether a judge
found that the witness had lied?
A witness's arrest or a factual finding about the witness is not a
specific instance of the witness's conduct. Rather, as we pointed out
in Chapter Five at page 324, an arrest or a finding is activity engaged
in by the arresting officer or the fact finder. Moreover, as we point out
in Chapter Eight at pages 468, this type of evidence is hearsay. The
witness is not being asked directly whether the witness engaged in
the conduct. Instead, the witness is being asked whether somebody
else—the arresting officer (or person who authorized the arrest) or
the factfinder—said that the witness engaged in the conduct. And, of
course, that statement of the police officer or the factfinder is relevant
to impeach the witness only if one believes the truth of what the
officer or fact finder said. For this reason, some courts have limited
FRE 608(b) questioning to the witness's conduct in these instances.
See, e.g., United States v. Holt, 486 F.3d 997 (7th Cir. 2007) (not
abuse of discretion for trial court to allow cross-examination of police
officer about his conduct but to exclude questioning about whether
the officer was suspended for the conduct); United States v. Davis,
183 F.3d 231, 257 n.12 (3d Cir. 1999) (“the government cannot make
reference to [the defendant's] . . . suspension or that Internal Affairs
found he lied . . . . The government needs to limit its cross-
examination to the facts underlying those events.”). Other courts,
however, have permitted these questions. See, e.g., United States v.
Whitmore, 359 F.3d 609 (D.C. Cir. 2004) (judge's finding that witness
had lied); United States v. Scott, 74 F.3d 175,177 (9th Cir. 1996)
(question about prior arrest).
e. Questions About Specific Acts and FRE 403
FRE 608(b) states that courts “may” allow questions about specific
acts when they are probative of character for truthfulness. Even when
specific acts are probative of character for truthfulness, courts may
exercise their discretion and exclude such questions because of FRE
403 concerns. First, in some instances the witness's conduct, even if
relevant for untruthfulness, may have low probative value. Compare
Ad-Vantage Telephone Directory Consultants, Inc. v. GTE Directories
Corp, 37 F.3d 1460 (11th Cir. 1994) (accountant's 1969 sanction for
ethical violation inadmissible on FRE 403 grounds because of
remoteness in time) with United States v. Munoz, 233 F.3d 1117, 1135
(9th Cir. 2000) (14- to 16-year-old incident not too remote). Second, if
the witness acknowledges an act of untruthfulness, there is a risk of
unfair prejudice. See United States v. Bunchan, 580 F.3d 66 (1st Cir.
2009) (“The district court's determination that the nature of sexual
assault charges was not sufficiently probative of [the witness's]
character for truthfulness to outweigh the serious danger of
prejudicing the jury against him was well within its discretion.”). This
risk is particularly great if the witness happens to be a party: The jury
may be willing to decide against the party because the jury regards
the witness as a bad person. United States v. DeGeratto, 876 F.2d
576, 582-583 (7th Cir. 1989) (emphasizing prejudicial nature of cross-
examination about defendant's involvement in prostitution without
discussing how such evidence was probative of truthfulness). Third, if
there are numerous inquiries about the specific acts of truthfulness,
there are likely to be concerns with

398

time-consumption and confusion of the issues. Fourth, even if the

witness honestly denies having committed a dishonest act, there is a
risk that the jury may be more swayed by the suggestiveness of the
question than by the answer. United States v. Dring, 930 F.2d 687,
692 (9th Cir. 1991) (quoting McCormick on Evidence for proposition
that a “ 'slashing cross-examination may carry strong accusations of
misconduct and bad character, which the witness's denial will not
remove from the jury's mind' ”). Finally, if the witness is a party and if
the question relates to conduct similar to the conduct that is the
subject of the litigation, there is a risk that the jury will consider the
evidence, contrary to the dictate of FRE 404(b), as evidence that the
defendant engaged in the conduct that is the subject of the litigation.
United States v. Pintar, 630 F.2d 1270, 1285-1286 (8th Cir. 1980)
(prosecution unduly emphasized illegal kickbacks that were not part
of the charge and not admissible pursuant to FRE 404(b) in cross-
examination of defendant).
Despite the FRE 403 grounds for objecting to FRE 608(b)
questions, courts typically are quite liberal in permitting inquiry about
specific acts to prove character for impeachment purposes.
According to the Advisory Committee, “Effective cross-examination
demands that some allowance be made for going into matters of this
kind.” See also David P. Leonard, Appellate Review of Evidentiary
Rulings, 70 N.C. L. Rev. 1155 (1992), a particularly thoughtful
analysis of the role of appellate courts in reviewing trial judges' FRE
608(b) decisions.
f. Good-Faith Requirement; Practical Considerations

Because of the suggestiveness that is likely to inhere in a question

about a specific act relating to truthfulness, courts have held that the
examiner must have a good-faith basis for believing that the act
occurred. United States v. DeGeratto, 876 F.3d 576, 584 (7th Cir.
1989). Such a requirement is probably satisfied, for example, by
knowledge that the witness had been arrested for the activity that is
the subject of the question or by hearsay information obtained during
the investigation of the case. See United States v. Whitmore, 359
F.3d 609 (D.C. Cir. 2004) (record from state Motor Vehicle
Administration provided reasonable basis to ask witness about
suspended driver's license, even though record was hearsay).
A litigant who suspects that the opponent may ask a question
without a factual basis for the inquiry should request a hearing on that
issue outside the presence of the jury. Similarly, if a litigant suspects
that the opponent may ask about some act falling outside the
truthfulness limitation in FRE 608(b), the litigant should consider filing
a motion in limine seeking a ruling on the issue. Unless the litigant
knows that the opponent is aware of the potential impeaching
evidence, however, filing such a motion may have the undesirable
effect of alerting the opponent to the evidence.
An additional practical consideration in criminal cases concerns the
constitutional obligation of prosecutors under Brady v. Maryland, 373
U.S. 83 (1963), to turn over evidence favorable to the defense. This
obligation extends to evidence that the defense may use to impeach
government witnesses under FRE 608(b). United States v. Torres,
569 F.3d 1277 (10th Cir. 2009) (abuse of discretion by trial court in
failing to find Brady violation when prosecutor failed to disclose
government witness, a confidential informant, had previously
breached an agreement with the government and
399

had been involved in unrelated criminal conduct); see also United

States v. Price, 566 F.3d 900 (9th Cir. 2009); United States v.
Johnson, 519 F.3d 478 (D.C. Cir. 2008); United States v. Velarde, 485
F.3d 553 (10th Cir. 2007).
g. Specific Acts Showing Good Character for Truthfulness
Most FRE 608(b) questions involve attempts to impeach witnesses
with their untruthful acts; however, the rule also permits questions
about truthful acts. For example, a witness who has been impeached
with character evidence may be asked about specific truthful acts as
a means of rehabilitating the witness's character. FRE 608(b)
prohibits extrinsic evidence for specific acts relating to truthfulness as
well as untruthfulness. See United States v. Melia, 691 F.2d 672, 674-
675 (4th Cir. 1982) (improper to rehabilitate witness with extrinsic
evidence that witness helped to solve various crimes). Technically,
FRE 608(b), unlike FRE 608(a), does not contain a provision that
permits questions about truthful acts only after the witness has been
impeached with character evidence. Nevertheless, this kind of
bolstering evidence is unlikely to be allowed (because of either FRE
403 or FRE 608(a)'s prohibition on preimpeachment character
evidence). The reported cases and academic commentary devote
little attention to FRE 608(b) truthful acts. This category of evidence
does not appear to generate problems for courts. The evidence is
obviously self-serving and, therefore, seldom worth introducing or
challenging.
h. “Cross-Examination”
FRE 608(b) states that the court may allow specific instances to be
inquired into on “cross-examination.” Although FRE 608(b) questions
about untruthful acts arise most often during cross-examination (as
an attempt to impeach a witness called by the opposing party), there
are other instances in which FRE 608(b) questions will be allowed.
Therefore, the term “cross-examination” should not be interpreted to
limit the scope of the rule. For example, FRE 607 permits parties to
impeach the credibility of their own witnesses. Therefore, a party who
calls a witness, and attempts to impeach that witness, may ask
608(b) questions on direct examination. Moreover, if one party asks
608(b) questions relating to untruthfulness on cross-examination,
then the opposing party may attempt to rehabilitate the witness by
inquiring into specific acts relating to truthfulness on redirect
examination, or vice versa. See, e.g., United States v. Powell, 124
F.3d 655, 661 n.4 (5th Cir. 1997) (when defendant raised issue of his
own truthful character during cross-examination of a witness, it was
permissible for the prosecution to ask about specific acts of the
defendant during redirect).
i. The Scope of FRE 608(b)(2): Questioning Character Witnesses Regarding Specific
Acts of the Witnesses They Testify About
FRE 608(b)(2) addresses an issue we have considered previously
in Chapter Five: the cross-examination of reputation or opinion
witnesses to test their knowledge of the reputation or the basis for the
opinion about which they testify.

400

Once a character witness has given reputation or opinion testimony

pursuant to FRE 608(a), the opposing party—in addition to
impeaching the character witness with questions about the character
witness's own acts of untruthfulness (FRE 608(b)(1))—may impeach
the character witness in the same manner in which a party may
impeach character witnesses who give reputation or opinion
testimony pursuant to FRE 404(a)(2): The impeaching party may ask
the character witness if the character witness is aware of relevant
specific acts committed by the person whose character was the
subject of the witness's testimony. For example, if, as we
hypothesized earlier about the Johnson case, the defense had called
witnesses to testify that in their opinion Johnson was a truthful
person, it would have been appropriate to ask these witnesses on
cross-examination both about their own acts of untruthfulness (FRE
608(b)(1)) and about their knowledge of acts of dishonesty in which
Johnson had engaged (FRE 608(b)(2)). It would not have been
appropriate, however, to ask them if they knew about Johnson's
previous violent acts. As FRE 608(b) makes clear, the specific acts
must relate to the character trait about which the FRE 608(a)
character witness testified—truthfulness—and acts of violence are
not probative of truthfulness.
This FRE 608(b)(2) impeachment process is identical to the process
for impeaching character witnesses that we described in Chapter
Five. In effect, FRE 608(b)(2) is a specific, somewhat awkwardly
worded application to FRE 608(a) character witnesses of the general
principle set forth in the second sentence of FRE 405(a): “On cross-
examination [of a character witness who offers reputation or opinion
testimony], the court may allow an inquiry into relevant specific
instances of the person's conduct.” As is the case in the context of
relying on FRE 405(a) to impeach FRE 404(a) character witnesses,
(1) the cross-examiner must have a good-faith basis for asking the
questions, United States v. Reese, 568 F.2d 1246, 1249 (6th Cir.
1977), and (2) the legitimate purpose of the inquiry is to impeach the
credibility of the character witness, not to prove the character of the
principal witness, about whom the question is asked. Indeed, using
the character witness's testimony about the principal witness's
specific act to prove the principal witness's truthfulness would violate
the FRE 608(b) prohibition against using extrinsic evidence to prove
the principal witness's character.

KEY POINTS
1. FRE 608(b)(1) permits the impeachment and rehabilitation of
witnesses with questions about the witnesses' own specific
acts that show character for truthfulness. The examiner is
bound by the witness's answer to such questions and may not
introduce extrinsic evidence to challenge the answer.
2. FRE 608(b)(1) specific-acts questions must relate to character
for truthfulness, and they are subject to exclusion on FRE 403
grounds.
 3. When an FRE 608(a) character witness offers opinion or
reputation testimony about another witness's character for
truthfulness, FRE 608(b)(2) permits the opposing party to ask
the character witness about specific acts probative of
truthfulness that the other witness may have committed. The
purpose of the questions is to test the basis for the character
witness's reputation or opinion testimony.

401

PROBLEMS
7.5. Defendant is on trial for a burglary, which took place at 10:00
. . in a house at 1251 Hazel Street. Defendant has bright red
hair. The defense calls Jones to testify, and Jones testifies as
follows: “On the night of the burglary, I was walking out of the
Century Pub around 10:00 . . The Pub is across the street
from 1251 Hazel Street. I saw a man with black hair running
out of the house at 1251 Hazel Street.”
In order to impeach Jones, may the prosecution:
(a) call another witness, Smith, to testify that Jones has a
bad reputation for truthfulness in their neighborhood? (;)
(b) ask Jones whether he lied on a job application a year ago
when he denied ever having been convicted of a crime?
Suppose the prosecution has a copy of both the job
application and a record of Jones's conviction for armed
robbery four years ago. If Jones denies lying on the job
application, may the prosecution respond by admitting an
authenticated copy of the job application? An
authenticated record of the conviction?
7.6. Sam Browning is charged with murder. He plans to testify in his
own behalf and to call Walt Williams to testify that Browning
has a good reputation for peacefulness. The prosecutor has a
good-faith basis for believing that three years ago Browning
was involved in a bribery scheme; that he beat his wife
 (although no charges have ever been filed); and that last year
Williams filed a false income tax return.
(a) Can the prosecutor ask Browning about the bribery
incident? The beating?
(b) Can the prosecutor ask Williams if he has heard that
Browning was involved in a bribery scheme three years
ago? That Browning beat his wife three years ago?
(c) Can the prosecutor ask Williams if he intentionally filed a
false income tax return last year?
7.7. Ed Duke is being prosecuted for murdering Harry Howe, owner
of Harry's Hash House. Harry was found dead on the floor of
his Hash House and the till was open and empty. At trial Fred
Finley testifies for the prosecution that the day before the
murder Ed Duke said he was going to get Harry.
(a) On cross-examination of Finley, defense counsel asks
Finley whether he has ever been arrested for possession
of marijuana.
(b) Alex Adams offers to testify that several years ago he was
an altar boy at the local church, that Finley was a
chorister, and that several times Alex saw Finley steal
church property such as cups and other religious objects.
(c) Jane Jackson, a neighbor of Finley's parents, offers to
testify that she has known Finley for Finley's entire life
and that in her opinion he is untruthful.
(d) In rebuttal, the prosecution calls Mark Mayer, who offers
to testify that he lives in the same neighborhood as Fred
Finley and that he knows Finley's reputation in the
neighborhood for truth and veracity is good.
(e) On cross-examination of Mayer, defense counsel asks if
Mayer has heard that Finley was convicted of perjury two
years ago.

402

Should objections to any of this evidence be sustained?

7.8. Williams is charged with being a convicted felon in possession
of a firearm. The only evidence of his possession was the
testimony of Detective David Martin. Martin testified that while
giving chase, he saw Williams throw a black object. After
arresting Williams, Martin returned to the area and found a gun
that showed signs of being thrown against a wall. Williams
claims that he had no gun and that it was planted by Martin.
Can Williams cross-examine Martin about (a) a Superior
Court judge's finding that Martin lied on the stand during a trial,
(b) Martin's driver's license being suspended for driving while
intoxicated and the fact that Martin never reported the
information to his superiors, and (c) Martin's failure to comply
with a court order to pay child support?
Consider whether the court should permit Williams to call the
following witnesses:
(a) Johnny Caravella to testify about a news story he wrote
five years ago that identified Detective Martin as the
subject of many police harassment complaints in the
neighborhood. The sources for the story were unnamed
people who lived in Martin's neighborhood.
(b) Defense attorney Alice Weaver to testify that Martin has a
reputation in the “court community” for being untruthful.
Weaver's testimony is based on the opinions of three
other defense lawyers she knows and her own
experience with cases in which Martin has been a
witness.
(c) Chris Brown, an acquaintance of Martin, to testify that
Martin wrongfully arrested him for drug possession, that a
friend's belongings went missing when Martin arrested
the friend, and that in his (Brown's) opinion Martin is very
dishonest. Until six years ago Brown lived in Martin's
neighborhood and saw Martin almost daily. Brown
continues to see Martin regularly when he returns to the
neighborhood to visit his mother.

4. FRE 609
 RULE 609. IMPEACHMENT BY EVIDENCE OF A CRIMINAL CONVICTION

(a) In General. The following rules apply to attacking a witness's character for
truthfulness by evidence of a criminal conviction:
(1) for a crime that, in the convicting jurisdiction, was punishable by death or by
imprisonment for more than one year, the evidence:
(A) must be admitted, subject to Rule 403, in a civil case or in a criminal case in
which the witness is not a defendant; and
(B) must be admitted in a criminal case in which the witness is a defendant, if the
probative value of the evidence outweighs its prejudicial effect to that defendant;
and
(2) for any crime regardless of the punishment, the evidence must be admitted if the
court can readily determine that establishing the elements

403
of the crime required proving—or the witness's admitting—a dishonest act or false
statement.
(b) Limit on Using the Evidence After Ten Years. This subdivision (b) applies if more
than ten years have passed since the witness's conviction or release from confinement
for it, whichever is later. Evidence of the conviction is admissible only if:
(1) its probative value, supported by specific facts and circumstances, substantially
outweighs its prejudicial effect; and
(2) the proponent gives an adverse party reasonable written notice of the intent to
use it so that the party has a fair opportunity to contest its use.
[Section (c) restricts the use of convictions that have been the subject
of pardon or annulment; section (d) restricts the use of juvenile
adjudications; and section (e) provides that the pendency of an
appeal does not make evidence of a conviction inadmissible.]

5. Explanation of FRE 609(a) and (b)

FRE 609(a) permits impeachment with two types of convictions: (1)
convictions for serious crimes (i.e., those punishable by imprisonment
for more than one year, which is the federal definition of a felony),
and (2) convictions, regardless of potential punishment, for crimes
involving a dishonest act or false statement. The theory of relevance
underlying the use of both types of prior convictions is similar to the
theory of relevance underlying inquiries about specific instances of
conduct pursuant to FRE 608(b)(1): The witness's specific acts that
are the basis for the conviction show a general character trait or
disposition for untruthfulness from which one can infer that the
witness may not be telling the truth on the witness stand. The
limitations of FRE 609 do not apply when prior convictions are offered
for a relevant purpose other than to prove the witness's character for
truthfulness, such as to show contradiction or bias. United States v.
Gilmore, 553 F.3d 266, 272 (3d Cir. 2009) (defendant's prior drug
convictions admissible to contradict his testimony that he never sold
drugs); United States v. Allen, 540 F.3d 821, 824 (8th Cir. 2008)
(witness's prior conviction for misdemeanor domestic battery
admissible to show witness was prohibited from possessing a firearm
and, therefore, had a self-interested motive in denying knowledge or
possession of a firearm in a car in which he and defendant were
arrested).
An essential feature of FRE 609 is that, unlike FRE 608(b), it
contains no prohibition against the use of extrinsic evidence. Thus, if
a witness denies a conviction, it is permissible to establish the
conviction with extrinsic evidence—for example, with a record of the
conviction.
a. The Two FRE 609(a)(1) Balancing Tests
If a conviction falls within FRE 609(a)(1)—that is, if it is a felony that
is not a crime involving a dishonest act or false statement (e.g., if it is
murder)—its admissibility to impeach a witness is subject to a
balancing test. The balancing test for all

404

witnesses except criminal defendants is FRE 403. For criminal

defendants who are witnesses, FRE 609(a)(1) mandates a reverse-
FRE 403 test: The probative value must outweigh the prejudice to the
defendant. Whereas FRE 403, by requiring that the probative value
must be substantially outweighed by the countervailing factors, favors
admissibility, and in effect puts the burden on the party arguing for
exclusion to justify that result, the reverse FRE 403 test in FRE 609
favors exclusion and in effect puts the burden on the prosecution to
justify admissibility.
 Consider, for example, a situation in which a witness has been
released from imprisonment for murder six years ago. In deciding
whether to admit evidence of the murder conviction to impeach the
witness, the judge must first assess the probative value of the
conviction. Then the judge must assess the prejudicial impact of the
evidence and apply the appropriate balancing test. All of the issues
that you studied in Chapter Three concerning the application of FRE
403 apply to the trial judge's decision.
Probative Value. The evidentiary fact that the conviction is offered
to prove is the truthfulness of the witness at the time of the witness's
testimony. Thus, the probative value assessment should include
consideration of (1) the age of the conviction, (2) how probative
murder is to show bad moral character or general disposition for law-
breaking, which in turn shows a disposition for untruthfulness, and (3)
the witness's intervening behavior. Six years may seem like a long
time, and murder may not seem very probative of untruthfulness. On
the other hand, six years is only slightly more than half of the time
period prescribed in FRE 609(b), and in the absence of mitigating
circumstances relating to the murder, it may be reasonable to infer
that a person who is willing to commit such a serious crime has little
regard for the law, including the requirement to testify truthfully.
Moreover, a crime that in isolation may not seem very probative of
truthfulness may be more probative if it is part of a continuing pattern
of untruthfulness. Thus, conduct reflecting on truthfulness during the
time between release from imprisonment and giving testimony should
be an important part of the probative value determination. United
States v. Gilbert, 668 F.2d 94, 97 (2d Cir. 1981) (conviction
admissible; age of conviction and subsequent history did not suggest
abandonment of earlier ways).
Unfair Prejudice. Against the probative value assessment the
judge must balance the potential for unfair prejudice. Here there are
two primary concerns: First, to what extent will the jury consider the
witness to be a bad person and, therefore, be disposed against the
witness? For example, if the witness is the defendant, there is a risk
that jury may ignore the reasonable doubt standard because it
regards the defendant as a bad or dangerous person. Even if the
witness is not a party, there is a risk that prejudice against the witness
may spill over and affect the jury's attitude about the party who called
the witness.
Second, to what extent is there a risk that the jury may use the
conviction not only in its proper propensity sense to prove that the
witness may be untruthful on the witness stand but also in an
improper propensity sense? For example, if the witness is a
defendant charged with a crime of violence, there is a risk that the
jury, in violation

405

of the prohibition in the first sentence of FRE 404(b), may use the
murder conviction as evidence of the defendant's character for
violence, for the purpose of inferring that the defendant behaved
violently in committing the crime charged. This risk is particularly high
when the witness is the defendant and the prior crime is similar in
nature to the one at issue in the current trial.
The Reverse FRE 403 Balancing Test for Criminal Defendants.
The probative value of the murder conviction to prove untruthfulness
remains the same regardless of whether the witness is a party to the
action. The prejudice, however, is likely to be greatest when the
witness is a criminal defendant. Even if the jury regards a nonparty
witness as a bad person, it seems less likely that the jury would
respond by thinking ill of and, as a result, punishing the party who
called the witness. And the risk that a jury may utilize a prior
conviction in an improper propensity sense exists only if some
conduct of the witness is the subject of the current litigation. That, of
course, will always be the case with criminal defendants who testify
on their own behalf.
Because the risk of prejudice to criminal defendants is particularly
high and because the probative value versus prejudice balancing
process is inherently imprecise, FRE 609(a)(1) employs a reverse
FRE 403 balancing test for witnesses who are criminal defendants.
As a result, it is somewhat more likely, at least in theory, that the
murder conviction— and other FRE 609(a)(1) convictions—will be
admissible against witnesses who are not criminal defendants than
against criminal defendants. See United States v. Caldwell, 760 F.3d
267, 285-289 (3d Cir. 2014) (excluding the defendant's prior
convictions under reverse 403 balancing test after considering: (1)
the nature of the crime, (2) the date of conviction, (3) the importance
of the defendant's testimony, and (4) the importance of the
defendant's credibility).
The FRE 403 Balancing Test for Other Witnesses. FRE 609(a)
does not give civil parties who are witnesses the benefit of the
reverse FRE 403 balancing test. Rather, FRE 609(a) treats them in
the same manner as it treats nonparty witnesses. Their prior
convictions will be admissible unless the probative impeachment
value of the convictions is substantially outweighed by the FRE 403
countervailing factors.
The subject matter of civil litigation often does not involve the same
type of morally culpable conduct that is typically the subject of
criminal prosecutions. As a result, the risk of prejudice from using
prior convictions for impermissible propensity purposes may be less
in civil cases generally than in criminal prosecutions. Moreover, civil
litigants as a class are not as likely to have prior convictions as are
criminal defendants. On the other hand, some civil claims—for
example, fraud or sexual assault—involve allegations of criminal
conduct; and as we suggested in subsection iii, supra, the risk of bad
person prejudice is likely to be greater with party witnesses than with
nonparty witnesses. Do you think civil party witnesses should receive
the same reverse balancing test that criminal defendants receive?
The Factual Circumstances of the Crime. When courts balance
the probative value of a conviction against its unfair prejudice and
other countervailing factors, they frequently discuss the issue in only
general terms—such as the type, the punishment,

406
 the date, and the number of convictions—because this is the
information that will be presented to the jury. United States v. Howell,
285 F.3d 1263 (10th Cir. 2002). We discuss the factual details that
may be presented below in subsection 6(d). Courts also inquire into
the facts underlying a conviction when determining whether a
conviction involves a “dishonest act or false statement” for purposes
of FRE 609(a)(2). We discuss this issue below in subsection 5(b).
b. The Automatic Admissibility of FRE 609(a)(2) “Dishonest Act or False Statement”
Convictions

The Rule. “Dishonest act or false statement” convictions, as the

language of FRE 609(a)(2) makes clear, are automatically admissible
without regard to balancing and without regard to the seriousness of
the crime. In short, if the conviction is for a crime involving a
dishonest act or false statement, it is unnecessary to consider what
the potential penalty for the crime is or any potential prejudicial
impact of the conviction. As long as the conviction falls within the time
limitation set forth in FRE 609(b), a court has no discretion to exclude
it. For example, if a witness had been convicted of a misdemeanor
offense of making a false statement on some type of application form,
the impeaching party could admit the conviction to impeach the
witness even if the conviction were nine years old and thus arguably
not very probative of the witness's truth-telling on the witness stand
now, nine years later. Even if the witness were a criminal defendant
charged with the identical crime the evidence would be admissible.
The Meaning of “Dishonest Act or False Statement.” Because of
the automatic admissibility for crimes involving dishonest acts or false
statements, the contours of this category of crimes are extremely
important. To the extent that one equates “dishonest act” with “illegal,”
all crimes are crimes involving a dishonest act. Clearly, however, the
term dishonest in FRE 609(a)(2) should not be interpreted that
broadly, for limitations in FRE 609(a)(1) would then be meaningless.
Prior to the 2011 restyling amendments, FRE 609(a)(2) referred to
crimes involving “dishonesty or false statement,” and the Advisory
Committee Note to FRE 609 equates “dishonesty or false statement”
with the common law classification crimen falsi. The Senate Judiciary
Committee Report and the Conference Report on the Federal Rules
contain the following identical elaboration:
[It means] crimes such as perjury or subornation of perjury, false statement, criminal
fraud, embezzlement or false pretenses, or any other offense, in the nature of crimen
falsi the commission of which involves some element of untruthfulness, deceit or
falsification bearing on the accused's propensity to testify truthfully.
Federal courts have interpreted “dishonesty or false statement”
relatively narrowly. United States v. Osazuwa, 564 F.3d 1169, 1175
(9th Cir. 2009) (“It is undisputed that bank fraud is an act of
dishonesty”); United States v. Harper, 527 F.3d 396, 408 (5th Cir.
2008) (“theft by check convictions fall under Rule 609(a)(2)”); United
States v. Morrow, 977 F.2d 222 (6th Cir. 1992) (counterfeiting is crime
of “dishonesty or false

407

statement”); Wagner v. Firestone Tire & Rubber Co., 890 F.2d 652 (3d
Cir. 1989) (forgery is crime of “dishonesty or false statement”); Walker
v. Horn, 385 F.3d 321, 334 (3d Cir. 2004) (robbery is not crime of
dishonesty or false statement); United States v. Mejia-Alarcon, 995
F.2d 982 (10th Cir. 1993) (conviction for unauthorized use of food
stamps not within FRE 609(a)(2)); United States v. Karmer, 923 F.2d
1557 (11th Cir. 1991) (misdemeanor theft not usually within FRE
609(a)(2)). There are gray areas, however, and the case law is not
entirely consistent. Compare, e.g., United States v. Wilson, 985 F.2d
348 (7th Cir. 1993) (failure to file income tax return is crime of
“dishonesty or false statement”) with Cree v. Hatcher, 969 F.2d 34 (3d
Cir. 1993), (failure to file income tax return not within FRE 609(a)(2)).
See generally Stuart P. Green, Deceit and Classification of Crimes:
Federal Rule of Evidence 609(a)(2) and the Origins of Crimen Falsi,
90 J. Crim. L. & Criminology 1087 (2000).
The Significance of the Underlying Details of the Crime. FRE
609(a)(2) provides that a conviction falls within its scope when “the
court can readily determine that establishing the elements of the
crime required proving—or the witness's admitting—a dishonest act
or false statement.” In the absence of the witness's admission, the
Advisory Committee provides examples of what may satisfy the
“readily apparent” requirement:
Where the deceitful nature of the crime is not apparent from the statute and the face of
the judgment—as, for example, where the conviction simply records a finding of guilt for
a statutory offense that does not reference deceit expressly—a proponent may offer
information such as an indictment, a statement of admitted facts, or jury instructions to
show that the factfinder had to find, or the defendant had to admit, an act of dishonesty
or false statement in order for the witness to have been convicted. (Emphasis added.)
In United States v. Jefferson, 623 F.3d 227, 234-235 (5th Cir. 2010),
for example, the court concluded that a prior conviction for
obstruction of justice involved a dishonest act or false statement, and
thus qualified under FRE 609(a)(2), because the indictment in that
case alleged that the witness attempted to persuade another to lie to
federal law enforcement authorities. See also United States v. Collier,
527 F.3d 695, 699 (8th Cir. 2008) (conviction for credit card fraud
within 609(a)(2) because offense included “intent to defraud” as a
statutory element).
c. The FRE 609(b) Reverse Balancing Test

All prior convictions falling within the scope of FRE 609(a)—

including dishonest act and false statement convictions—are subject
to a reverse FRE 403 balancing test in FRE 609(b) if they fall outside
the ten-year time period specified in that subsection. The ten-year
time period runs from the date of conviction or release from
imprisonment, whichever is later. See United States v. Rogers, 542
F.3d 197, 201 (7th Cir. 2008) (“confinement” for purposes of FRE
609(b) “does not include periods of probation or parole”—“The clock
starts at the witness's release from any physical confinement.”). Thus,
for example, a 12-year-old perjury conviction for which the witness
served a three-year sentence would be automatically admissible
despite the age of the conviction. If the witness had been imprisoned
for only one year, however, FRE

408
 609(b) would apply, and the conviction would be admissible only if
its probative value substantially outweighed its prejudice—a test that,
by virtue of the term substantially, is even more stringent than the
reverse FRE 403 test in FRE 609(a).
Indeed, although courts have not developed specific standards to
distinguish FRE 609(b) balancing from FRE 609(a) balancing, they
have indicated that FRE 609(b) convictions should rarely be
admissible. United States v. Bensimon, 172 F.3d 1121, 1126-1127
(9th Cir. 1999).

6. FRE 609(a) Impeachment: Policy and Practical Considerations

a. The Rationale for FRE 609(a)(1)
FRE 609(a)(1)—like the rules in most states—permits a trial judge
to balance probative value and prejudice in deciding whether to admit
evidence of felonies, regardless of whether the underlying conduct
could reasonably be described as having a bearing on the witness's
character for truthfulness. The rule is thus far broader than FRE
608(b).
The common law origin of impeachment with prior convictions
probably accounts in part for its breadth and its uniform acceptance:
At common law a person's conviction of treason, any felony, or a misdemeanor involving
dishonesty (crimen falsi), or the obstruction of justice, rendered the convict completely
incompetent as a witness. These were said to be “infamous” crimes. Thanks to statutes
or rules virtually universal in the common law world, this primitive absolutism has been
abandoned. The disqualification for conviction of crime has been repealed, and by
specific provision or by decision it has been reduced to a mere ground for impeaching
credibility. [1 McCormick on Evidence §42, at 184-85 (Kenneth S. Broun ed., 6th ed.,
2006).]
In addition, the rule is justified by the belief that prior convictions,
even if they are based on activity that does not relate very directly to
truthfulness, may be especially relevant to the question of the
witness's general credibility. Neither courts nor commentators,
however, attempt to justify the assumption that convictions for acts
only remotely related to truthfulness (e.g., aggravated assaults) may
be especially probative of truthfulness on the witness stand. But see
Campbell v. Greer, 831 F.2d 700 (7th Cir. 1987) (“The proposition that
felons perjure themselves more often than other, similarly situated
witnesses . . . is one of many important empirical assertions about
law that have never been tested, and may be false.”); Schmude v.
Tricam Indus., Inc., 556 F.3d 624, 628 (7th Cir. 2009) (asserting that
the assumption that convicted felons are more likely to lie on the
witness stand is “underinclusive, since many people who have
committed a felony have not been caught.”).
Consider to what extent the following explanation justifies FRE 609:
A person of generally bad moral character is more likely to lie than a
person of generally good moral character. Indeed, compelling proof of
bad moral character may be particularly probative of untruthfulness.
All of us, however, from time to time engage in “bad” acts that tend to
suggest bad moral character; and since few, if any, of us are likely to
consider ourselves to be of bad moral character, it must follow that a
single bad act—or

409

even a series of bad acts—is not necessarily very probative of

general moral character. Thus, in the absence of a conviction, most
jurisdictions prohibit inquiry into these acts unless they are likely to
have more than very marginal value to the question whether the
witness is lying—that is, unless they relate fairly directly to that issue
by suggesting a character trait of untruthfulness as opposed to
general bad moral character. On the other hand, because the criminal
law traditionally has tended to proscribe only the most reprehensible
activities, convictions (especially when they are for serious crimes)
are likely to be particularly probative of bad moral character and,
therefore, untruthfulness. Of course, this justification for FRE 609 is
weakened by the modern trend to also criminalize conduct that many
do not consider to be morally reprehensible.
b. Prior Convictions and Prejudice
Most prior convictions admissible under FRE 609(a) are likely to be
more prejudicial than most nonconviction bad act evidence
admissible under FRE 608(b). This is so because the substantive law
tends to criminalize the most reprehensible behavior; because police
and prosecutors tend to focus their limited resources on the most
serious offenders; and because the fact of conviction represents the
community's judgment of moral condemnation. As a result, there is a
relatively high risk that juries may be predisposed against witnesses
who are shown to have prior convictions. Whenever the witness is a
party or somebody closely associated with the party, jurors' attitudes
about the witness may improperly affect their decision.
In assessing probative value and prejudice, it is important to keep in
mind the significance of the similarity between the prior conviction
evidence and the current criminal charge. When the witness is a
criminal defendant (or some other person whose alleged actions are
the basis for the current litigation), similarity between the current
criminal allegations and the facts underlying the impeachment
evidence enhances the prejudice, not the probative value, of the prior
conviction. The only permissible inference to draw from the conviction
is that the witness is an untruthful person and therefore may be lying
on the witness stand.
c. Extrinsic Evidence
Convictions are the result of a plea or a factfinder's beyond-a-
reasonable-doubt finding of guilt. They provide highly probative
evidence that the underlying bad acts occurred, and the fact of a
conviction can be easily established with a public record. Thus, the
concern with time-consuming litigation about collateral matters that
arguably justifies the FRE 608(b) prohibition against extrinsic
evidence, see page 395, supra, does not apply to convictions offered
pursuant to FRE 609, which may be proven with extrinsic evidence.
In practice, however, there is seldom any need for such extrinsic
evidence. Because a party can so easily establish a conviction, it is
unlikely that a witness will deny the conviction in the first place.
Indeed, as we discuss at page 412, infra, if a prior conviction will be
admissible to impeach a witness, the party calling the witness may
have the witness acknowledge the conviction on direct examination.

410
 d. The Factual Details of the Conviction
Just as courts have an interest in avoiding lengthy inquiry into
alleged bad acts that have not resulted in convictions, courts also
have an interest in not spending a great deal of time exploring the
facts underlying a witness's conviction. Moreover, eliciting the factual
details underlying a conviction is likely to increase its prejudicial
impact. Thus, courts typically will permit the impeaching party to
mention the name of the crime, when and where it occurred, what
sentence was imposed, and nothing more. United States v. Lopez-
Medina, 596 F.3d 716, 738 (10th Cir. 2010) (“Ordinarily it is improper
for the prosecution to examine into the details of the crime . . . . The
cross-examination should be confined to the essential facts of
conviction, nature of crime, and the punishment.”); United States v.
Osazuwa, supra (“Absent exceptional circumstances, evidence of a
prior conviction for impeachment purposes may not include collateral
details and circumstances attendant upon the conviction.”); United
States v. Commanche, 577 F.3d 1261 (10th Cir. 2009) (abuse of
discretion for trial court to allow detail that defendant's prior two felony
convictions involved sharp objects when defendant was on trial for
allegedly stabbing two men); United States v. Pandozzi, 887 F.2d
1526, 1534-1535 (1st Cir. 1989) (impeachment with sexual assault
conviction; proper to elicit that crime was sexual assault and to
prohibit reference to fact that victim was a child). The details of a
conviction that may be admitted will depend on an application FRE
403. See United States v. Lopez-Medina, supra (“A district court must
conduct a Rule 403 balancing test before determining [whether to
admit or exclude evidence] other than the fact and date of such
convictions.”). Further details regarding a crime may be admissible if,
for example, the witness tries to explain away or minimize the
seriousness of the crime. United States v. Amachia, 825 F.2d 177
(8th Cir. 1987); see also United States v. Commanche, supra (witness
does not “open the door” to details about the conviction merely by
answering questions about it).
e. The Relationship Between FRE 609(a) and FRE 608(b)
 To what extent may parties rely on FRE 608(b) to admit additional
details or specific acts related to criminal convictions that may be
admitted under FRE 609? Recognizing the potential for FRE 608(b)
to undermine limitations on the details of criminal conduct that may
be presented under FRE 609, several federal appellate courts have
clarified recently that FRE 608(b) may not be used to admit specific
acts related to criminal convictions. FRE 608(b) applies only to
specific acts that did not result in a criminal conviction; FRE 609
governs impeachment with criminal convictions and any underlying
conduct. United States v. Osazuwa, 564 F.3d 1169 (9th Cir. 2009)
(“Echoing the observations of the Fifth, Eighth, and Tenth Circuits, we
hold that Rule 608(b) permits impeachment only by specific acts that
have not resulted in a criminal conviction. Evidence relating to
impeachment by way of criminal conviction is treated exclusively
under Rule 609”); United States v. Lightfoot, 483 F.3d 876 (8th Cir.
2007); United States v. Parker, 133 F.3d 322 (5th Cir. 1998); Mason v.
Texaco, Inc., 948 F.2d 1546 (10th Cir. 1991).

411
f. Hearsay
Regardless of whether the prior conviction is elicited from the
witness or proved extrinsically with the record of conviction, the
evidence is hearsay. The theory underlying FRE 609 is that the
witness committed the acts that constitute the elements of the crime
for which the witness was convicted and that proof of these acts
suggests something important about the witness's credibility. In other
words, the conviction is a manifestation of the jury's or the judge's
assertion in an earlier proceeding that the witness committed the acts
essential for the conviction, and it is the truth of this assertion that is
critical to the relevance of the evidence. To the extent one doubts the
reliability of this assertion, one should also doubt the probative value
of the evidence for its impeaching purpose. For a recent argument
that problems regarding the reliability of convictions and guilty pleas
fall disproportionately on racial minorities, and that FRE 609
exacerbates these problems by generating evidence for further
convictions, see Montré D. Carodine, “The Mis-Characterization of
the Negro”: A Race Critique of the Prior Conviction Impeachment
Rule, 84 Ind. L.J. 521, 526 (2009) (“Rules such as Rule 609 keep
Blacks ensnared in the criminal justice system, perpetuating the
criminalization of a staggering percentage of the Black population.”).
The Federal Rules, as well as a number of other jurisdictions, have
a judgments exception to the hearsay rule. Typically, however, the
judgments exception is narrower than the rule authorizing
impeachment with prior convictions. For example, FRE 803(22)
extends the judgments exception only to convictions for crimes
punishable by imprisonment for more than one year, whereas FRE
609(a)(2) authorizes the use of “dishonest act or false statement”
convictions regardless of the potential penalty. If courts have even
noticed this conflict between FRE 609(a) and FRE 803(22), they have
not been bothered by it. Courts considering the admissibility of
misdemeanor convictions for impeachment under FRE 609(a)(2)
have relied on that rule, which deals specifically with that issue, and
have ignored the limitations in the more general FRE 803(22).
g. Practical Considerations
Frequently parties will file motions in limine seeking an advance
ruling on whether prior convictions will be admissible against them. In
deciding whether or not to testify in their criminal trials, defendants
will want to know ahead of time whether their prior convictions will be
admissible to impeach them. The admissibility determination may
affect a defendant's trial strategy in two important ways. First,
defendants who learn their prior convictions will be admissible for
impeachment purposes may choose not to testify in order to prevent
the jury from learning about the convictions. There is some empirical
evidence suggesting that the admission of a criminal defendant's prior
convictions contributes to the likelihood of a guilty verdict. Harry
Kalven Jr. & Hans Zeisel, The American Jury 159-160 (1966);
Anthony N. Doob & Hershi M. Kirshenbaum, Some Empirical
Evidence on the Effect of Sec. 12 of the Canada Evidence Act Upon
the Accused, 15 Crim. L.Q. 88, 91-95 (1972-1973). However, other
evidence suggests that the prejudicial impact of prior convictions may
not be as strong as is commonly asserted or assumed. See Ronald J.
Allen &

412

Larry Laudan, The Devastating Impact of Prior Crimes Evidence

and Other Myths of the Criminal Justice Process, 101 J. Crim. L. &
Criminology 493 (2011) (discussing a study of over 350 state court
criminal trials in which the acquittal rates for defendants with prior
convictions was similar for defendants who had their convic-tions
admitted at trial and for those who did not have their convictions
admitted: 20.3% versus 23.9%).
Second, when a defendant chooses to testify and the defendant's
prior convictions will be admissible, it will often be tactically important
for the defendant to mention admissible prior convictions on direct
examination. If the jury learns of the convictions for the first time on
cross-examination, there is the risk that the jury will be prejudiced
against the defendant for not “coming clean” on direct examination.
The direct examiner, however, obviously has no interest in calling to
the jury's attention convictions that would not otherwise be
admissible.
In the Johnson case, defense counsel brought out on direct
examination the prior convictions of the defendant, his cellmate,
Butler, and inmate Green. Unfortunately, however, the direct
examination was not complete with respect to Green's prior
convictions. Thus, the prosecution was still able to benefit from the
implication that the witness was not fully forthcoming on direct
examination (page 55, lines 20-39, supra).
Judges will frequently rule on motions in limine regarding the
admissibility of convictions before a defendant has to decide whether
to testify. There is apparently no obligation to make such a ruling,
however. In Luce v. United States, 469 U.S. 38 (1984), the Supreme
Court held that a defendant who chose not to testify after the trial
judge refused to rule on his motion in limine could not seek reversal
on the ground that the convictions should not have been admissible.
To preserve that claim, the Court held, the defendant must testify.
 The Luce Court relied primarily on two factors. First, there was a
concern that with a contrary holding defendants who had no genuine
interest in testifying might file motions in limine in the hope of creating
reversible error in the event that the court ruled the convictions to be
admissible. Second, Luce made his motion before trial and did not
accompany it with any indication of how he planned to impeach
prosecution witnesses or what the testimony of defense witnesses
(including himself) would be. In this context, the Supreme Court quite
reasonably took the position that the trial judge may not have had
enough information to engage in the balancing process required by
FRE 609.
Consider what should happen if the defendant receives an
unfavorable ruling on a motion in limine before testifying. Can the
defendant acknowledge the conviction on direct examination in order
to remove any inference of hiding unfavorable information and at the
same time preserve the admissibility issue for appeal? Despite the
fact that this situation does not implicate the two concerns that were
central to Luce, the Supreme Court in Ohler v. United States, 529
U.S. 753 (2000), held 5 to 4 that a defendant who acknowledges prior
convictions on direct examination after a ruling that they will be
admissible pursuant to FRE 609 cannot claim on appeal that the
admissibility decision was erroneous. See also United States v.
McConnel, 464 F.3d 1152, 1162 (10th Cir. 2006) (extending Ohler's
waiver rule to impeachment evidence

413

under FRE 608(b)). For a case refusing to follow Ohler and

reaching the opposite result, see State v. Daly, 623 N.W.2d 799 (Iowa
2001). Which decision do you think is better—Ohler or Daly?
Even after Ohler and Luce, a defendant who contemplates the
possibility of testifying should probably pursue a motion in limine to
exclude prior convictions. If the judge rules on the motion, the
defendant at least will have a better sense of the consequences of
testifying.
 For defense counsel who pursue such motions, there are several
important considerations. First, and most important, while there may
be legitimate tactical reasons for withholding some information from
the court and the prosecution, a defense counsel who is serious
about wanting a ruling on the motion should provide the trial court
with as much information as possible to make the decision. For
example, the defense should indicate what the impeachment of
prosecution witnesses is likely to entail, what the defense testimony
will probably be, and why the defendant's testimony is important for a
fair trial. Providing the judge with this information removes one of the
principal concerns expressed by Luce.
Second, if the court does not grant the motion before trial, defense
counsel should renew the motion at the close of the prosecution case
and, if necessary, again immediately before the defendant will have to
decide whether to take the stand. At each renewal of the motion
defense counsel should refine the argument for exclusion of the
convictions in light of the evidence that has been presented and the
anticipated evidence. At some point along the way it is likely that the
court will have sufficient information to make a reasoned FRE 609
ruling. And if the judge has all of the relevant information, there is no
reason why the judge should not rule on the motion. Indeed, in this
type of situation the defendant might argue that—particularly in light
of the Luce and Ohler—it is an abuse of discretion and an
unreasonable burden on the defendant's right to testify for the judge
to refuse to make the ruling.
Third, if the trial judge is reluctant to make a definitive FRE 609
balancing decision without knowing what the evidence in the case
actually is, defense counsel should seek a conditional ruling: For
example, as long as the evidence presented by the defendant is
limited to the representations accompanying this motion, the
defendant's prior convictions are not admissible.

KEY POINTS
 1. FRE 609(a)(2) provides that convictions involving dishonest
acts or false statements falling within the ten-year time limit
described in FRE 609(b) are automatically admissible to
impeach all witnesses (including criminal defendants) without
regard to penalty or balancing.
2. FRE 609(a)(1) provides that other convictions falling within the
ten-year time limit are admissible only if they are punishable
by more than a year's imprisonment and if they satisfy the
appropriate balancing test.
3. The balancing test for all witnesses except criminal defendants
is FRE 403 (admissible unless probative value substantially
outweighed by countervailing

414

factors); the balancing test for criminal defendants who are

witnesses is a reverse FRE 403 test (probative value must
outweigh the prejudicial impact on defendant).
4. The ten-year time limitation in FRE 609(b) runs from the date
of conviction or the date of release from imprisonment,
whichever is more recent.
5. In federal courts, a defendant who acknowledges prior
convictions on direct examination following an in limine ruling
that the convictions will be admissible cannot challenge the in
limine ruling on appeal.

PROBLEMS
7.9. Return to Problem 7.5 at page 401. During cross-examination,
may the prosecution ask Jones whether he has ever been
convicted of armed robbery? If Jones answers, “No,” may the
prosecution respond by admitting an authenticated record of
Jones's conviction from four years ago?
7.10. Return to Problem 3.5 at page 150. Suppose Trapp testifies
consistently with his deposition. Broadback's attorney has an
 authenticated record of Trapp's felony conviction for illegally
possessing methamphetamine. The attorney also has an
authenticated copy of a recent application for a life insurance
policy in which Trapp denied ever using illegal drugs. During
cross-examination, may Broadback's attorney:
(a) Ask Trapp whether he was convicted for possessing
methamphetamine? If Trapp denies the conviction, may
Broadback's attorney introduce the record of conviction?
(b) Ask Trapp whether he lied on his life insurance
application? If he denies doing so, may the attorney
introduce the application and the record of conviction?
7.11. Ellen Jamison is being prosecuted for perjury, and she testifies
in her own defense. Eight years ago Ellen was convicted of
perjury, and last year she was convicted of felonious assault
against her husband. Can the prosecutor introduce evidence of
these convictions?
7.12. In the Johnson trial, which occurred in 1992, the following
convictions were used to impeach the credibility of defense
witnesses:
(a) robbery and battery (years not specified) by George
Butler, the defendant's cellmate;
(b) first degree murder, assault with a deadly weapon, and
first degree burglary (years not specified) by Michael
Green, another inmate;
(c) rape (paroled in 1984) and first degree burglary (1985) by
the defendant, Johnson.
Which of these convictions would be most likely and least
likely to be admitted pursuant to FRE 609?
7.13. Tom Jackson has filed a federal civil rights against Larry Oster,
a prison guard, for injuries sustained in what Jackson claims
was an unprovoked assault. Jackson

415

is currently in prison for life with no possibility of parole as a result of

his conviction eight years ago for aiding and abetting his
 brother in the murder of a police officer. Jackson has filed a
motion in limine asking the court to exclude any reference to
the conviction. Oster has filed a motion in limine asking the
court to rule that for impeachment purposes the defendant can
introduce evidence that the conviction was for murdering a
police officer and that Jackson is serving a life sentence
without possibility of parole. How should the court rule?
7.14. Houghton has been charged with bank robbery, using a
firearm during the robbery, and possession of a firearm after
having been convicted of a felony. Houghton was convicted of
murder 15 years ago and paroled three years ago. He is willing
to stipulate that he has been “convicted of a felony,” and he
plans to testify that he was not the robber. In a motion in limine
he asks the court to exclude any evidence of or reference to
the prior conviction except for the stipulation. How should the
court rule?
7.15. Dawn Drabble is charged with robbery. In cross-examining a
prosecution witness, Dawn wishes to show that the witness
was convicted of felonious assault eight years ago. Later,
Dawn testifies in her own defense, and the prosecution offers
to show that she was convicted of felonious assault eight years
ago. Are the convictions admissible?
7.16. Jane and Ed Farley are charged with embezzlement, and they
both plan to testify. Dan Evans will testify for them as a
character witness. Jane Farley was convicted of filing a false
income tax return 15 years ago, and Ed Farley was convicted
of felonious theft five years ago. Dan Evans was convicted of
misdemeanor battery two years ago. Pursuant to FRE 608(b)
the prosecutor plans to ask the following questions on cross-
examination:
(a) To Jane Farley: Isn't it true that you filed a false income
tax return 15 years ago?
(b) To Ed Farley: Isn't it true that five years ago you made
false representations to induce individuals to invest in a
get-rich-quick scheme? (As the prosecutor knows, this
was the underlying basis for theft charge.)
 (c) To Dan Evans: Isn't it true that two years ago you
pretended to be a friend to Joe Newhouse and lured him
to a deserted building where you knew he would be
beaten? (As the prosecutor knows, this was the basis for
the battery charge; Evans was convicted as an aider and
abettor.)
Are any of these questions objectionable?

C. IMPEACHMENT AND REHABILITATION WITH A WITNESS'S

PRIOR STATEMENTS

A witness's prior statement—that is, a statement made at another

time and place prior to the witness's current testimony—falls within
the core definition of hearsay, and thus may be inadmissible, if the
statement is offered to prove its truth. FRE 801(a)-(c); FRE 802.
Sometimes a witness's prior statement will be admissible for its truth
because it falls within an exception to the hearsay rule or an explicit
exemption from

416

the definition of hearsay. FRE 801(d), 803-804, 807. If a witness's

prior statement is admissible for its truth, there is no need to consider
whether it may also be admissible for the nonhearsay purpose of
impeaching or rehabilitating the witness. We discuss hearsay in
Chapter Eight. Our focus here is on the nonhearsay use of prior
inconsistent and consistent statements that are not independently
admissible for their truth.
When a witness's prior inconsistent statements are offered to
impeach the witness, the relevance of this evidence derives not from
its truth but from its inconsistency with the witness's trial testimony.
Proof of an inconsistency, regardless of which statement is true,
suggests that the witness may have lied in making one of the
statements or that the witness for some other reason—for example,
faulty memory or lack of interest in the subject matter—has on one
occasion not reported accurately what happened. Such proof allows
the impeaching party to argue to the jury that the witness is not
reliable. The admissibility of a prior inconsistent statement for an
impeaching purpose is governed by FRE 401-403, that is, whether it
is relevant for an impeaching purpose, its probative value for this
purpose, and whether its probative value is substantially outweighed
by FRE 403 concerns. In addition, FRE 613 establishes the process
for admitting prior inconsistent statements that are relevant and
admissible under FRE 403.
A witness's prior consistent statements may also be relevant for
rehabilitating a witness's testimony. The theory of relevance is similar
to that for prior inconsistent statements. Proof that a witness has
made statements consistent with the witness's current testimony
suggests that the witness is careful and thoughtful in speaking about
the matter to which the statements relate. Thus, except to the extent
that there is reason to believe the witness is deliberately telling
consistent lies, knowing about the consistency gives us more reason
to credit and rely on the witness's testimony.

1. FRE 613
RULE 613. WITNESS'S PRIOR STATEMENT
(a) Showing or Disclosing the Statement During Examination. When examining a
witness about the witness's prior statement, a party need not show it or disclose its
contents to the witness. But the party must, on request, show it or disclose its content to
an adverse party's attorney.
(b) Extrinsic Evidence of a Prior Inconsistent Statement. Extrinsic evidence of a
witness's prior inconsistent statement is admissible only if the witness is given an
opportunity to explain or deny the statement and an adverse party is given an
opportunity to examine the witness about it, or if justice so requires. This subdivision (b)
does not apply to an opposing party's statement under Rule 801(d)(2).

2. Explanation of FRE 613

FRE 613 establishes the process by which an examiner may
introduce evidence of a witness's prior inconsistent statement for the
purpose of impeaching the witness's

417
credibility. Typically, the examiner will confront the witness with a prior
inconsistent statement during cross-examination.
a. FRE 613(a)
FRE 613(a) makes it clear that the examiner need not disclose the
contents of a prior inconsistent statement to the witness before
asking whether the witness made the statement. This provision
formally abolishes the rule derived from the Queen Caroline's Case, 2
Br. & B. 284, 129 Eng. Rep. 976 (1820), which required, at least with
respect to written statements, that the witness be shown the
statement prior to any questioning about the statement. The rationale
for the rule of the Queen's Case stems from a concern that the
witness may honestly have forgotten what is or appears to be an
inconsistent statement. If such a witness were not shown the
statement prior to questioning, a clever cross-examiner might be able
to get the witness to deny having made the statement, thereby giving
the false impression that the witness was a liar. On the other hand,
showing the statement to the witness before questioning gives the
dishonest witness the opportunity to concoct a false story that
minimizes the impact of the inconsistency. For this reason many
commentators have criticized the Queen's Case rule, which the
Advisory Committee Note to FRE 613(a) characterizes as a “useless
impediment to cross-examination.”
FRE 613(a) provides that opposing counsel has the right, upon
request, to learn of the statement. According to the Advisory
Committee Note, this provision “is designed to protect against
unwarranted insinuations that a statement has been made when the
fact is to the contrary.” Assume, for example, that defense counsel
had reason to believe that one of plaintiff's eyewitnesses to an
automobile accident had made a statement inconsistent with the
witness's trial testimony about who was at fault. Counsel could
interrogate the witness about whether the witness had ever made
such a statement without first revealing its contents to the witness.
Upon request, however, defense counsel would have to reveal the
inconsistent statement to plaintiff's counsel.
 b. FRE 613(b)
FRE 613(b) also acknowledges that extrinsic evidence of
inconsistent statements may be admissible, but it provides that in
most instances there is a twofold condition for the admissibility of
extrinsic evidence. The witness must have an opportunity to explain
the statement, and the opposing party must have an opportunity to
explore the inconsistency with the witness. To fulfill these
requirements the party offering the prior inconsistent statement must
generally do so when the witness is still testifying or must make sure
that the witness is available for recall. United States v. Moore, 149
F.3d 773, 781-782 (8th Cir. 1998).
Requiring that the witness have the opportunity to explain the
statement gives the factfinder a reasonable basis for evaluating the
alleged inconsistency. For example, the witness may have a plausible
explanation for why an apparently inconsistent statement is not in fact
inconsistent, or the witness may deny having made the statement, in
which case the factfinder will have to assess the relative weight of the
extrinsic evidence and the witness's denial.

418

The “if justice so requires” exception exists because there may be

situations in which it is not possible to give the witness an opportunity
to explain the apparent inconsistency. Consider, for example, a
situation in which the impeaching party becomes aware of the prior
inconsistent statement only after the witness has been dismissed and
is no longer available. In such a case it may further the search for
truth to permit extrinsic evidence of the inconsistent statement without
any opportunity for the witness's explanation rather than to exclude
the impeaching evidence altogether.
The final sentence of FRE 613(b) provides another exception to the
usual requirement that the witness have an opportunity to explain or
deny the statement: The requirement is inapplicable to inconsistent
statements by a party falling within FRE 801(d)(2). That rule provides
that a party's prior statements may be admissible for their truth
regardless of whether the party testifies. Thus, there is no need to
restrict admissibility under FRE 613 when the party happens to be a
witness.
c. FRE 613(b)'s Departure from the Common Law
The common law imposed a rigorous foundation requirement as a
condition for introducing extrinsic evidence of an inconsistent
statement. The impeaching party could not introduce extrinsic
evidence of a witness's statement without first indicating the precise
time and place of the statement and the person to whom it was made
and then asking the witness whether the witness had made the
statement. The drafters of the Federal Rules made clear their intent
to have a more flexible foundation requirement. According to the
Advisory Committee Note to FRE 613(b):
The traditional insistence that the attention of the witness be directed to the statement
on cross-examination is relaxed in favor of simply providing the witness an opportunity
to explain and the opposite party an opportunity to examine on the statement, with no
specification of any particular time or sequence.
As a result of this liberalization of the common law foundation
requirement, it is possible that an impeaching party may introduce
extrinsic evidence of an inconsistent statement without ever having
mentioned the statement to the witness. Consider, for example, a
situation in which the witness suggests on direct examination that the
defendant was speeding. Now suppose that the opposing counsel
has information that the witness had said the defendant was not
speeding. Under FRE 613, opposing counsel on cross-examination
may do nothing more than get the witness to reconfirm the direct
examination testimony. Then, later in the trial during the presentation
of the defense case, counsel may attempt to introduce extrinsic
evidence of the inconsistent statement. As long as the witness has
not been dismissed and is subject to recall (or perhaps as long as
witness is available and can be called anew by the opposing party),
extrinsic evidence of the statement may be admissible.
d. Extrinsic Evidence in Practice: Practical Considerations
Some trial judges have prohibited litigants from introducing extrinsic
evidence of prior inconsistent statements that they made no effort to
explore with the witness on cross-examination, and appellate courts
have upheld these decisions on the ground

419

that the trial judges were appropriately exercising discretion to

control manner and order of proof. FRE 611(a). United States v.
Sutton, 41 F.3d 1257, 1260 (8th Cir. 1994). As a result, the
impeaching party in these cases lost the opportunity to show the
inconsistent statement. To avoid this situation, unless counsel feels
that there is a compelling tactical reason not to do so, the safe course
of action is to lay the traditional common law foundation and to
confront the witness with the inconsistent statement on cross-
examination. (Indeed, many cross-examiners regularly use the
elements of that foundation as part of their impeachment technique.)
If the impeaching party lays the common law foundation and the
witness denies making the inconsistent statement, the door should be
open to proof of the statement with extrinsic evidence. If the party
admits the statement, it is less clear whether extrinsic evidence of the
statement will be admissible. Some courts take the position that the
witness's acknowledgment of the statement removes any need for the
extrinsic evidence, while other courts permit extrinsic evidence. The
appropriate course of action, in our view, is not to have a flat rule of
inadmissibility or admissibility but rather to view the issue as one
governed by FRE 401-403.
e. Probative Value and FRE 403 Concerns
Since everyone occasionally makes inconsistent statements, proof
of an apparently trivial inconsistency does little, if anything, to
impeach a witness's credibility. If the inconsistency relates to the
subject matter of the lawsuit, however, it provides a reason to be wary
generally of the witness's testimony. The inconsistency, regardless of
which statement is true, suggests either that the witness is willing
intentionally to lie about the subject matter of the litigation or at least
that the witness has been careless and inaccurate in reporting
information important to the resolution of the litigation.
 The Risk of Improper “Substantive” Use. When an inconsistent
statement relates to an issue in the lawsuit, there is, of course, the
possibility that the jury will consider the statement not merely for its
impeachment value but also for its truth. The risk of improper use is a
danger of unfair prejudice within the scope of FRE 403. This risk of
unfair prejudice, however, will seldom, if ever, be a basis for exclusion
of the evidence. Inconsistent statements about the issues in the
lawsuit are likely to be more probative for impeachment purposes
than inconsistent statements about unrelated matters. Thus, the most
prejudicial inconsistent statements are also the most probative for
their impeachment value. As you know, the FRE 403 balancing test
favors admissibility. Thus, the FRE 403 unfair prejudice argument is
not likely to succeed unless the objecting party can show some way
in which the statement at issue is likely to be uniquely prejudicial in
comparison to other inconsistent statements. For a rare example of a
case holding that prior inconsistent statements should have been
excluded because their impeachment value was outweighed by the
risk that the jury would use the statements for their truth, see United
States v. Logan, 121 F.3d 1172 (8th Cir. 1997). Cf. United States v.
Young, 248 F.3d 260, 268 (4th Cir. 2001) (probative value of witness's
ambiguous responses to questions (e.g., “uhm-hmm”) outweighed by
risk that jury would consider truth of matters asserted in questions).

420

Loss of Memory and Inconsistency. There is at least one type of

situation in which an FRE 403 unfair prejudice argument should have
a reasonable chance of succeeding. If a witness who testifies to a
lack of memory about an event has made a prior statement about the
event, some courts view the claimed current loss of memory and the
prior statement as inconsistent with each other. When it is reasonable
to regard the loss of memory as feigned and, therefore, tantamount to
a denial of the earlier statement, the characterization of the
statements as inconsistent is reasonable. To the extent that the
claimed loss of current memory seems plausible, however, there is no
inconsistency between the witness's testimony and the prior
statement. United States v. DeSimone, 488 F.3d 561, 572 (1st Cir.
2007) (not abuse of discretion to find no inconsistency between prior
statement and trial testimony because it was “not implausible” that
the witness did not recall a conversation that took place five years
before trial). Thus, the prior statement has relatively low probative
value for its legitimate impeachment use, but there is no reduction in
the likelihood that the jury will consider the prior statement for its
truth.
Inconsistent Statements About Collateral Matters. Sometimes a
witness's alleged inconsistent statement will be about a “collateral”
matter—a matter that is wholly unrelated to the issues in the case. If
an inconsistent statement is about a collateral matter, its probative
value may be so low that on at least some occasions the FRE 403
efficiency concerns should require its exclusion. Consider, for
example, a situation in which George sees an automobile accident as
he is leaving a movie theater. A month later, in an interview with an
insurance investigator, George states that he had been going to the
theater every night the week of the accident because there was a
Bogart festival. He further relates that he had seen Casablanca on
the night of the accident. (Which Bogart movie George saw may be
technically irrelevant to the issues in the case, but it is not unusual for
a witness to include such details as part of a narrative of events.) At
the trial George's testimony is consistent with his earlier statement in
every respect except that he says he had seen Key Largo on the
night of the accident. Assume that there is no dispute about what
night the accident occurred and that it was the night that Key Largo
was shown. Assume further that everyone concedes that there was
not an accident on the night Casablanca was shown. Despite the
facts that the inconsistency is collateral to the issues in the case and
that it seems plausible that a person might have conflicting memories
about which of two Bogart movies was showing on a particular night
during the Bogart festival, one might want to permit the impeaching
party to examine George about the inconsistency. The very low
probative value of the evidence, however, may not warrant the
consumption of time required to call an additional witness to offer
extrinsic evidence of the inconsistency. Indeed, this is the result
mandated by a common law rule that prohibited extrinsic evidence of
an inconsistent statement about a collateral matter. Moreover, some
federal courts have specifically adopted this rule. United States v.
Grooms, 978 F.2d 425 (8th Cir. 1992); United States v. Tarantino, 846
F.2d 1384, 1409-1410 (D.C. Cir. 1998) (reciting the FRE 403
discretionary balancing test as authority).

421

Despite the cases approving the “collateralness” doctrine, the

admissibility of extrinsic evidence of inconsistent statements under
the Federal Rules should turn on an application of FRE 403 to the
details of the case.

3. Prior Consistent Statements

A witness's prior consistent statements may be relevant to rehabilitate
a witness's credibility by demonstrating that the witness has spoken
consistently about a matter. The prior statements may also be
relevant for their truth, in which case they implicate hearsay
concerns. FRE 801(d)(1)(B), however, exempts from the definition of
hearsay a witness's prior consistent statements. This means that
consistent statements admitted for rehabilitation purposes may also
be considered for their truth.
FRE 801(d)(1)(B) exempts two categories of prior consistent
statements. The first category (FRE 801(d)(1)(B)(i)) applies to a
statement offered “to rebut an express or implied charge that the
[witness] recently fabricated it or acted from a recent improper
influence motive in so testifying.” As we discuss in Chapter Eight at
pages 494-95, infra, the Supreme Court in Tome v. United States has
interpreted this category narrowly: Only prior consistent statements
made prior to the time that a motive to fabricate or an improper
influence arose fall within the scope of this category. The second
category (FRE 801(d)(1)(B)(ii)), created by a recent amendment to
the Federal Rules, exempts prior consistent statements offered “to
rehabilitate the [witness's] credibility as a witness when attacked on
another ground.” We discuss the hearsay exemptions in detail in
Chapter Eight.
If a prior consistent statement is admissible, there is no specific
limitation on proof of the statement by extrinsic evidence. Typically,
however, a party will be eliciting the statement from the witness who
made it, and the witness is likely to be friendly to the examiner. Thus,
there will seldom be any need for extrinsic evidence.

KEY POINTS
1. Prior inconsistent statements may be admissible for the
nonhearsay purpose of impeaching the credibility of a witness.
2. FRE 613(b) provides that normally a party may not introduce
extrinsic evidence of a prior inconsistent statement unless the
witness has an opportunity to explain or deny the statement
and opposing counsel has an opportunity to question the
witness about the statement.
3. Although FRE 613(b) liberalizes the common law foundation
requirement for extrinsic evidence of inconsistent statements,
some federal courts prohibit extrinsic evidence if the
impeaching party does not call the statement to the witness's
attention.
4. Prior consistent statements offered to rebut an express or
implied charge of recent fabrication or improper influence are
admissible for their truth pursuant

422

to FRE 801(d)(1)(B)(i) as long as the statements were made

before the motive to fabricate arose.
5. Prior consistent statements offered to rehabilitate a witness
whose credibility has been attacked on another ground are
admissible for their truth pursuant to FRE 801(d)(1)(B)(ii).
 PROBLEMS
7.17. Return to Problem 7.5 at page 401. May the prosecution
introduce testimony from a police officer who investigated the
burglary that, when he first spoke with Jones the night of
burglary, Jones said that he saw someone running from the
house at 1251 Hazel Street but that it was dark and he could
not see who it was?
7.18. Return to Problem 3.2 at page 148. Assume that Jake O'Leary,
an eyewitness, testifies for the defense that Driver did not veer
off the roadway onto the gravel shoulder. Plaintiffs' counsel has
a written statement from Pam Peters, Jake's former girlfriend,
that the evening after the accident Jake said, “That bus driver
should have been more careful.” Can plaintiffs' attorney ask
O'Leary about the statement on cross-examination? If the
question is permitted and Jake denies having made the
statement, can plaintiff's attorney call Pam to testify that Jake
made the statement?
7.19. Danny Dickson has been charged with murdering a fellow
prison inmate. Three inmates testified for the prosecution that
Danny committed the murder, and none of them was cross-
examined. Later in the trial Danny offered the testimony of two
other inmates to the effect that the prosecution witnesses had
told them that Danny had not committed the murder. The
prosecution objects to this evidence. What result?
7.20. Return again to Problem 3.2 at page 148. Plaintiffs' counsel
has located Wanda White, another school bus driver, who had
dinner with Driver shortly after the accident. According to
White, Driver said that she was going to quit her job because
she hated “having to deal with those little brats every day.” Can
plaintiff's attorney call White to testify to this statement? Does
your answer depend upon (a) whether Driver testifies as set
forth at page 149, line 4? (b) whether plaintiff's counsel first
asks Driver about the statement on cross-examination?
7.21. Review the direct and cross-examination of Officer Huston in
the Johnson case (page 8, line 27, supra). What was the
 relevance of defense counsel's questions on cross-
examination about whether the incident report prepared by
Officer Huston made any reference to an open food port?
Would that inquiry be appropriate under the Federal Rules?
Would it be appropriate under the Federal Rules to introduce
the incident report to show that it contained nothing about the
food port?
7.22. Return to Problem 3.2 at page 148. Assume the following
occurred on direct examination of Driver after the direct
examination set forth at page 149:

423

Q: Did you drive the bus onto the gravel shoulder?

A: No.
Q: In the days following the accident did you discuss it with
anyone?
A: Yes, with my friend Wanda.
Q: And what did you talk about.
A: I told her that I'd been very careful, that I hadn't driven the
bus onto the gravel shoulder, and that I felt so sad for those
dear little children that I thought I was going to have to quit my
job.
Is any of this evidence objectionable? Would your answer be
different if this were redirect and if evidence of the “little brats”
statement (see Problem 7.20 at page 422) had been elicited on
cross-examination? In answering this last question, does it
matter whether the discussion with Wanda referred to in
Problem 7.20 and the discussion with Wanda referred to here
were (a) part of the same conversation or (b) conversations
occurring on different days?
7.23. Pam Peters has brought an action for personal injuries against
the Ace Department Store for injuries that she claims to have
sustained when she fell on some ice in the parking lot on
January 23. Peters first consulted an attorney in March, and
the suit was filed in April. The trial is taking place the following
 December. On direct examination Peters testified about the
accident, the severe bruises that she suffered, and the
continuing backaches and headaches that she has had
continually from the day of the injury. During cross-examination
defense counsel elicited the fact that Peters did not mention
the fall or her alleged injuries when she visited her doctor for a
routine checkup on March 1. Later in the trial the defendant
offered the testimony of two women who have monthly bridge
games with Peters to the effect that Peters said nothing about
the fall or any injuries at their bridge games on January 30 and
on February 28. Plaintiff objects to the admissibility of this
evidence.
In rebuttal, the plaintiff offers the testimony of Ed Peters,
Pam Peters's husband, that she told him about the accident on
January 23 and that she has frequently mentioned headaches
and backaches—at least two or three times a week ever since
January 23. The defendant has objected to Ed Peters's
testimony.
Should either plaintiff's or the defendant's objection be
sustained?
7.24. Return to Problem 3.3 at page 149. On direct examination,
Beth Barker testifies for the prosecution that she definitely
remembers placing the March 14, 2015, auditor's memo in
Ray's “in box” on the afternoon of March 14 and removing it the
next day from his “out box,” and that Ray's initials were on the
memo.
(a) Consider the following cross-examination of Ms. Barker:
Q: Ms. Barker, on July 10, 2016, you made a statement in my
office that was recorded by my assistant, did you not?
A: Yes.
Q: And at that session in my office I asked you some questions
about a March 14, 2015, auditor's memo, did I not?
A: Yes.

424
 Q: Isn't it true that I asked you the following questions and you
gave the following answers: [reading from the transcript
prepared by the assistant]
Q: Ms. Barker, of all the memos you deal with, do you specifically
recall the March 14 memorandum from Rundown's auditors?
A: No, I can't say that I recall that specific memo.
Should the prosecutor's objection to defense counsel's
reading from the transcript be sustained?
(b) Defense counsel next offers into evidence Exhibit B, an
authenticated written statement of Beth Barker dated
December 19, 2015, which states (in pertinent part):

Should the prosecutor's objection to the admission of Exhibit

B be sustained?
(c) On cross-examination, defense counsel asks Barker the
following:
Q: Ms. Barker, on August 12, 2016, were you arrested for
embezzling $250 from a petty cash fund while you were
employed at Rundown?
A: Yes.
Q: And when did the alleged embezzlement occur?
A: I don't remember?
Q: Was it before August 1st?
A: I don't remember.
 Q: Ms. Barker, isn't it a fact that you made up this story about
seeing the signed memo in Bernard Ray's mail box in order to
get a deal with the prosecutor on your embezzlement charge?
A: No, that's not true.
Defense Counsel: I have no further questions.

On redirect, the prosecutor offers into evidence an authenticated

written statement of Beth Barker dated June, 30, 2016, stating that “I
recall removing the March 14, 2015, auditor's memo from Mr. Ray's
“out box” on March 15, 2015. It had Mr. Ray's initials on it, and I filed
it.” There is a dispute as to whether the alleged embezzlement
occurred before or after June 30.
Should the June 30 statement be admitted over defense counsel's
objection?

425

D. OTHER IMPEACHMENT TECHNIQUES

Recall that at the outset of the impeachment discussion we described

impeachment as the process of attempting to raise doubts about the
testimonial abilities of witnesses—that is, to show that the witness is
lying, careless with words, imperceptive, or forgetful. The Federal
Rules specifically address only two permissible methods for raising
these doubts: attacking a witness's character and showing a
witness's prior inconsistent statement. The process of impeachment,
however, is not so limited. The common law permitted the
impeachment of witnesses with evidence of unorthodox religious
beliefs, bias, mental or sensory incapacity, and contradiction.
FRE 610 prohibits relying on the content of a witness's religious
beliefs to assess credibility: “Evidence of a witness's religious beliefs
or opinions is not admissible to attack or support the witness's
credibility.” For impeachment techniques that the Federal Rules do
not specifically address, FRE 401-403 determine the admissibility of
evidence.
1. Bias
a. Relevance
Courts and commentators frequently attach the label “bias” to what
Wigmore identified as three methods of showing a witness's
“emotional incapacity.” According to Wigmore:
Three different kinds of emotion constituting untrustworthy partiality may be broadly
distinguished—bias, interest, and corruption: Bias, in common acceptance, covers all
varieties of hostility or prejudice against the opponent personally or of favor to the
proponent personally. [E.g., intimate family relationship with one of the parties.] Interest
signifies the specific inclination which is apt to be produced by the relation between the
witness and the cause at issue in the litigation. [E.g., the expectation of favorable
treatment from the prosecutor or sentencing judge in return for the testimony.]
Corruption is here to be understood as the conscious false intent which is inferable from
giving or taking a bribe or from expressions of a general unscrupulousness for the case
at hand. [E.g., an attempt to bribe another witness or the receipt of money for
testimony.] The kinds of evidence available are two:
[1] the circumstances of the witness' situation, making it “a priori”
probable that he has some partiality of emotion for one party's
cause;
[2] the conduct of the witness himself, indicating the presence of
such partiality, the inference here being from the expression of
the feeling to the feeling itself.
[3A John Henry Wigmore, Evidence §947, at 782 (James Chadbourn rev. 1970)
(emphasis original).]
Proof of any of these types of bias can be particularly effective in
discrediting a witness because it is highly probative of insincerity.
Compare, for example, the likely impact of a prior inconsistent
statement or an FRE 608(b) bad act with proof of a witness's close
relationship with or expected favorable treatment from one of the
parties. All of us make

426

inconsistent statements at least occasionally, and having a bad

character for truthfulness may mean nothing more than that the
person is untruthful a bit more often than most people. Neither of
these forms of impeachment suggests any particular reason to
believe that the witness is being untruthful on the particular occasion
of the witness's current testimony. By contrast, the types of bias
described by Wigmore suggest a specific, concrete motive for
fabricating testimony or at least being less than fully candid.
b. Extrinsic Evidence
In United States v. Abel, 469 U.S. 45 (1984), the Supreme Court
upheld the proof of bias with extrinsic evidence under the Federal
Rules. The evidence in Abel consisted of testimony from a
prosecution witness that a defense witness and the defendant were
both members of the same secret prison gang that required its
members to commit perjury, theft, and murder on each member's
behalf. Which type of bias, under Wigmore's analysis, does this
suggest? Remember that the prosecution in the Johnson case tried to
prove that defendant Johnson and his cell mate, Butler, belonged to
the same gang outside of prison.
c. Possible FRE 403 Limitations on Extrinsic Evidence of Bias
Despite Abel, the right to introduce extrinsic evidence of bias is not
automatic under the Federal Rules. Typically, evidence of bias is
highly probative, but if the witness fully admits the bias or if the
evidence in fact suggests little about the witness's possible bias, a
court should probably sustain an FRE 403 objection to extrinsic
evidence. United States v. Adams, 799 F.2d 665, 671 (11th Cir. 1986)
(extrinsic evidence of bias excluded because bias adequately shown
through cross-examination). Evidence of bias may also raise the FRE
403 issue of unfair prejudice. Consider, for example, United States v.
Abel, supra:
Respondent argues that even if the evidence of membership in the prison gang were
relevant to show [witness Mills's] bias, the District Court erred in permitting a full
description of the gang and its odious tenets . . . .
Respondent specifically contends that the District Court should not have permitted
Ehle's precise description of the gang as a lying and murderous group. Respondent
suggests that the District Court should have cut off the testimony after the prosecutor
had elicited that Mills knew respondent and both may have belonged to an organization
together. This argument ignores the fact that the type of organization in which a witness
and a party share membership may be relevant to show bias . . . . The attributes of the
Aryan Brotherhood—a secret prison sect sworn to perjury and self-protection—bore
directly not only on the fact of bias but also on the source and strength of Mills' bias. The
 tenets of this group showed that Mills had a powerful motive to slant his testimony
towards respondent, or even commit perjury outright.
A district court is accorded a wide discretion in determining the admissibility of
evidence under the Federal Rules. Assessing the probative value of common
membership in any particular group, and weighing any factors counseling against
admissibility is a matter first for the district court's sound judgment under Rules 401 and
403 . . . . [469 U.S. at 53-54.]

427

Some courts also consider whether the witness was given an

opportunity to explain or deny the evidence of bias in determining
whether extrinsic evidence ought to be admitted. United States v.
Betts, 16 F.3d 748, 764 (7th Cir. 1994).
d. Bias versus Character
A troublesome issue that sometimes arises—particularly with the
type of evidence that Wigmore refers to as “corruption”—is whether
the evidence should fit within the “bias” category or the “character”
category. For example, is proof that the witness attempted to bribe
another witness evidence of corruption-bias, or is it evidence of
character, or both? Is the evidence of gang membership in Abel
character evidence or evidence of bias or both? The issue is
important because extrinsic evidence of the witness's conduct is
admissible to prove bias but not to prove character under FRE
608(b).
The issue is difficult to resolve in part because the term character is
not defined. Similarly, the contours of corruption, which the Advisory
Committee's Note to FRE 608 equates with “character” and
distinguishes from “bias” and “interest,” are not clear. Moreover, it is
not clear to what extent one should regard the concepts of character
and bias as mutually exclusive or as potentially overlapping. In Abel
the Court noted that the evidence of gang membership may show a
bad character for truthfulness as well as bias. The Court suggested
but did not decide that the FRE 608(b) prohibition against extrinsic
evidence to prove character should not apply when the evidence is
relevant and otherwise admissible to show bias.
 To the extent that it is reasonable to infer from the corrupt act that
the witness has some particular concern about or interest in the
outcome of the present litigation, the evidence has relatively high
probative value on the question of whether the witness's testimony is
tainted because of this interest. Thus, it seems appropriate to attach
the bias label to the evidence in order to permit exploration of the
matter with extrinsic evidence. On the other hand, if the only
reasonable inference to draw from the corrupt act is that the
individual has a general lack of integrity or disregard for the truth, the
probative value of the evidence to suggest untruthfulness on one
specific occasion on the witness stand is relatively low. This evidence
should receive the “character” label in order to prevent the possibility
of time-consuming and distracting exploration of the matter with
extrinsic evidence. In short, as Wigmore observed, “The only
distinction that is here legitimate is between conduct indicating a
corrupt moral character in general and conduct indicating a specific
corrupt intention for the case at hand.” 3A John Henry Wigmore,
Evidence §963, at 808-810 (James Chadbourn rev. 1970).

KEY POINTS
1. Showing a witness's bias is relevant to impeach the witness's
credibility, because the bias suggests a particular reason or
motive for the witness to lie or at least be less than completely
candid.
2. FRE 401-403 govern questioning regarding bias and the
admissibility extrinsic evidence.

428

PROBLEMS
7.25. Return to Problem 3.2 at page 148. Assume that plaintiff called
Nancy Patterson, an accident reconstruction expert, who
 testified that in her opinion the bus veered on the roadway and
was on the gravel shoulder when it hit Paul. Defense counsel
has learned that Patterson is receiving a $5,000 fee, that she
has testified ten times on behalf of plaintiffs and only once on
behalf of defendants, and that her husband's sister is married
to Paul's uncle. Plaintiff's counsel has filed a motion in limine
requesting that the court not permit any mention of these
matters on the grounds that they are irrelevant and prejudicial.
The motion is accompanied by affidavits from Patterson and
other accident reconstruction experts stating that a $5,000 fee
is in the low to normal range for the work that she has done
and an affidavit from Patterson stating that she has not seen or
heard from her husband's sister in over five years.
How should the court rule on the motion?
If the court denies the motion, can plaintiffs' counsel call
other experts to testify that the fee is in the low to normal
range?
7.26. Joan Dominick is being prosecuted for selling and conspiring
to sell controlled substances. According to the prosecution's
case, the conspiracy has lasted for a number of years and has
involved three closely knit families. Joan acknowledges that
some members of her family were involved in the conspiracy,
and she admits being acquainted with the other alleged co-
conspirators. However, she claims that she was not involved in
any illegal activity. The principal witness against Joan is Sean
Matthews, an acknowledged member of the conspiracy, who
has pleaded guilty and entered into a cooperation agreement
with the government. According to Sean, Joan supplied him
with large quantities of drugs on a number of occasions. On
cross-examination, Joan wants to inquire about (a) the extent
of Sean's involvement in the conspiracy, (b) his plea, and his
cooperation agreement, (c) an occasion five years ago when
she rejected his sexual advances and he became angry, and
(d) a ten-year-old drug scam in which Sean lost $30,000 and
claimed (incorrectly, according to Joan) that Joan was
 responsible for defrauding him. How much of this inquiry
should the court permit?
7.27. Stella Starlet is a rising movie star, rock singer, and television
personality. She has sued Frances Fisher, her former manager
and agent, for fraud and breach of contract. Stella's services
were in great demand, and according to the complaint Fisher
would negotiate contracts only with individuals willing to pay a
substantial sum, above the negotiated contract amount, in
cash directly to Frances. One of Stella's key witnesses is Ken
Olsen, a former employee of Fisher. Olsen testified in detail
about Fisher's demanding and receiving sums to book Stella
that were never accounted for. The following cross-
examination of Olsen took place without objection:
Q: Do you know Stella Starlet personally?
A: Yes.
Q: You're quite fond of her, aren't you?
A: Well, I like her and respect her.

429

Q: You feel indebted to her, don't you?

A: Indebted? No.
Q: Isn't it true that in the two months prior to this trial she has
taken you to dinner at expensive restaurants on at least seven
occasions?
A: No, she has never done that.
Q: And isn't it true that last month she bought you diamond cuff
links and a new set of expensive golf clubs?
A: No.
Q: Two weeks ago when you were having lunch with your friend
Tom Thompson at the River Edge Cafe, didn't you tell
Thompson that Stella had taken you to dinner seven times in
the last two months and that she had bought you diamond cuff
links and new golf clubs?
A: No.
As part of its defense, the defendant calls Tom Thompson to testify
that two weeks ago at the River Edge Cafe, Ken Olsen was bragging
that he had had dinner with Stella Starlet on seven occasions in the
last two months and that she recently bought him diamond cuff links
and new golf clubs. Should this evidence be admitted over plaintiff's
objection?

2. Mental or Sensory Incapacity

a. Relevance
Any sensory or mental deficiency that inhibits a witness's ability to
perceive events accurately at the time they occur or to remember and
to narrate accurately what happened at the time of trial is relevant to
cast doubt on the witness's credibility. Thus, for example, it is relevant
to prove that a witness suffers from faulty memory; some form of
mental illness that contributes to a witness's inability to distinguish
fact from fantasy; intoxication at the time of the event to which the
testimony relates or while on the witness stand; or color blindness if
accuracy with respect to color is important. Indeed, any fact relating
to the witness's general testimonial capacities for narration,
perception, and memory or about the exercise of these capacities on
the occasion in question is relevant to impeach the witness. Subject
to a court's discretion to control the mode of cross-examination (FRE
611(a)) and to FRE 403, it is permissible to inquire about these
matters during the examination of the witness whose sensory or
mental condition is at issue. United States v. Robinson, 583 F.3d
1265 (10th Cir. 2009) (reversible error to exclude evidence about
prosecution witness's mental health, prescription medication use, and
auditory hallucinations); United States v. Pryce, 938 F.2d 1343, 1345
(D.C. Cir. 1991) (prejudicial error to limit questions about witness's
hallucinations to the time frame of the events about which witness
testified); United States v. DiPaola, 804 F.2d 225, 229-230 (2d Cir.
1986) (permissible to exclude questions about witness's drinking
problem in the absence of any showing that witness was under the
influence at the time of the events or when giving testimony); Roberts
v. Hollocher, 664 F.2d 200, 203 (8th Cir. 1981) (questions about
Roberts's drug use

430

permissible because they were “relevant to Roberts' physical state

at the time of the alleged incidents and to his ability to accurately
recall those incidents”).
b. Extrinsic Evidence
In addition to making inquiry on cross-examination, parties may
introduce extrinsic evidence of a witness's mental or sensory
incapacity. Courts traditionally have regarded such evidence as
showing something different from a moral incapacity or character trait.
Thus, the restrictions on the proof of character are not applicable. As
a result, for example, courts have permitted extrinsic evidence of
such matters as strange, seemingly irrational acts of a witness, expert
testimony from a psychiatrist about a witness's mental capacity, and
courtroom experiments to demonstrate a witness's poor memory or
eyesight.
It is appropriate to decide on a case-by-case basis how extensive a
cross-examination to permit and how much, if any, extrinsic evidence
to introduce about a witness's sensory or mental incapacity. The
Federal Rules take this approach. In the absence of any exclusionary
rule, admissibility decisions should turn on the application of FRE
401-403 and, if expert testimony is offered, FRE 702-706.
c. Mental Incapacity as a Bar to Testimony
In considering an individual's mental incapacity it is important not to
confuse mental incapacity as a subject matter for impeachment with
mental incapacity as a complete bar to testimony. Early in the
development of the common law, courts barred individuals regarded
as mentally deranged or defective from testifying. As we discussed in
Chapter Four, FRE 601 now presumes that every person is
competent to be a witness, including a person with mental illness. If
an individual's mental condition prevents the individual from
understanding the oath or the obligation to testify truthfully, however,
that would be a legitimate reason for refusing to let the individual
testify.

KEY POINTS

1. Courts regard a witness's sensory or mental incapacity as

something different from a character trait. Thus, impeachment
on these grounds is not limited by FRE 404 or FRE 608.
2. FRE 401-403 and, if expert testimony is involved, FRE 702-
706 govern proof of a witness's sensory or mental incapacity.

PROBLEMS
7.28. Al Drummond has been charged with possession and sale of
cocaine. The key government witness is Jimmy Jones, an
informant and, according to the government, a former co-
conspirator in drug trafficking with Drummond. Jones had

431

already pleaded guilty and been sentenced for his involvement in the
drug incident for which Drummond is on trial. On cross-
examination of Jones, defense counsel (with a factual basis for
each question) asks:
(a) “Isn't it true that you are a heroin addict?”
(b) “Isn't it true that you are under the influence of heroin right
now on the witness stand?”
(c) “Isn't it true that last week you sold two ounces of heroin
to James Edwards?”
Are any of these questions objectionable? If objections are
not made or are overruled, can the defendant later introduce
extrinsic evidence to prove that Jones is an addict? Was under
the influence of heroin on the witness stand? Sold heroin last
week to James Edwards?
 The defense calls as a witness Dr. Helen James, who is
qualified as an expert on mental disorders. She offers to testify
that she recently diagnosed Jimmy Jones as suffering from
AKSS syndrome, a severe mental disorder. Should plaintiff's
objection to this evidence be sustained?
7.29. Return to Problem 5.32 at page 320. If the court rules that the
evidence is not admissible substantively, may the defendant
nonetheless introduce the expert testimony to impeach
Haywood's credibility?

3. Contradiction
a. Relevance
The last traditional method of impeaching a witness's credibility is
by means of contradiction—that is, introducing evidence that
contradicts something the witness has said. For example, if the
witness said that she was wearing a yellow dress when she saw the
automobile accident, it would contradict her testimony to establish
that she was wearing a blue dress on that occasion; and if one can
establish that a witness is incorrect about one thing, it is arguably
appropriate to infer that the witness may be wrong about other things,
including perhaps the substantively important aspects of the witness's
testimony.
As Wigmore observed:
The peculiar feature of [the] probative fact of error on a particular point [i.e.,
contradiction] is its deficiency with respect to definiteness and its wide range with
respect to possible significance. Looking back over the various [impeachment devices]
already considered, it will be seen that the evidence in those classes of cases was
aimed clearly and specifically at a particular defect; it showed either that or nothing.
Former perjury would indicate probably a deficient sense of moral duty to speak truth;
relationship to the party, a probable inclination to distort the facts, consciously or
unconsciously . . . .
[Evidence of contradiction] is not offered as definitely showing any specific defect of
any of these kinds, and yet it may justify an inference of the existence of any one or
more of them. We know simply that an erroneous statement has been made on one
point, and we infer that the witness is capable of making an erroneous statement on
other points. We are not asked, and we do not attempt to specify, the particular defect
which was the source of the proved error and which might therefore be the source
432
of another error. The source might be a mental defect as to powers of observation or
recollection; it might be a lack of veracity character; it might be bias or corruption . . . .
The inference is only that since, for this proved error, there was some unspecified defect
which became a source of error, the same defect may equally exist as the source of
some other error, otherwise not apparent. [3A John Henry Wigmore, Evidence §1000, at
957-958 (James Chadbourn rev. 1970) (emphasis original).]
All of us, of course, from time to time make erroneous statements
that can be contradicted. Thus, at least in the absence of showing
many contradictions by the same witness, see id. §1000, at 958,
proof of contradictions about matters unrelated to the issues being
litigated—for example, that the witness in the preceding example was
wearing a blue dress instead of a yellow dress—are often of only
marginal probative value to impeach the witness's credibility.
b. Extrinsic Evidence
FRE 401-403 govern the admissibility of evidence of contradiction,
and as is the case with evidence of sensory or mental defects, courts
applying FRE 403 may permit cross-examination but exclude
extrinsic evidence to prove the contradiction if the contradiction
appears to have little probative value to impeach the witness. For
example, in our blue dress hypothetical, a court may permit some
cross-examination about the color of the witness's dress, but if the
witness does not admit being wrong about the color of her dress, the
court may not permit the impeaching party to establish the
contradiction with extrinsic evidence by calling other witnesses to
testify that the dress was in fact blue. The color of the witness's dress
is not relevant to any issue in the case; and although it is not
uncommon for witnesses to include irrelevant details in their
testimony, contradicting such matters is typically not very probative of
how reliable the witness's testimony is on relevant, disputed facts.
Thus, under FRE 403, it will seldom if ever be worth the time and risk
of confusing the jury to prove these contradictions with extrinsic
evidence. As we observed earlier, all of us occasionally make
statements that are subject to contradiction, and as the Wigmore
excerpt points out it is seldom clear precisely what testimonial
deficiency a contradiction shows.
c. The Impeachment of Experts with Statements in Treatises
Parties may attempt to impeach an expert witness with statements
made by other experts. FRE 803(18) contains a relatively broad
hearsay exception for learned treatises. The Advisory Committee
acknowledged that, in part, the rationale for this hearsay exception is
that it “avoids the unreality of admitting evidence for the purpose of
impeachment only, with an instruction to the jury not to consider it
otherwise.” The hearsay exception, however, does more than merely
eliminate the need for a limiting instruction. FRE 803(18) does not
require that any particular expert rely on or acknowledge the treatise
as authoritative, nor does it require that the statements in the treatise
be inconsistent with any expert's testimony. Thus, as other portions of
the Advisory Committee Note make clear, the purpose of the
exception is to permit

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affirmative use of statements in learned treatises apart from

whatever impeachment value they may have.
d. The “No Extrinsic Evidence to Impeach on a Collateral Matter” Doctrine

At common law the admissibility of extrinsic evidence to contradict a

witness was governed by the general principle that one may not
introduce extrinsic evidence to impeach on a collateral matter. This is
the same principle that we mentioned earlier in discussing extrinsic
evidence of prior inconsistent statements, at pages 420-21, supra.
For example, in the blue dress hypothetical, the collateralness
doctrine would require exclusion of extrinsic evidence contradicting
the witness's testimony that she had been wearing a yellow dress and
also extrinsic evidence of a prior inconsistent statement in which she
stated that she had been wearing a blue dress at the time of the
accident. The color of the dress is collateral in that it has no bearing
on an issue in the case.
 We offer an examination of the collateralness doctrine here for two
reasons. First, although the Federal Rules do not mention the
collateralness doctrine, some federal courts have adopted and apply
it both in the contradiction context, United States v. Catalan-Roman,
585 F.3d 453, 469 (1st Cir. 2009), and in the inconsistent statement
context, United States v. Grooms, 978 F.2d 425 (8th Cir. 1992).
Second, mastering the collateralness doctrine requires focusing on
the inferential process involved in the use of evidence that contracts a
witness, and this focus is critical to a reasoned, persuasive argument
about admissibility in FRE 403 terms.
What Is Not Collateral Generally. Whether extrinsic evidence is
collateral and therefore inadmissible pursuant to the collateralness
doctrine is not always intuitively obvious. Three types of facts are not
collateral:
(1) facts relevant to the substantive issues in the case;
(2) facts relevant, apart from the contradiction, to impeach the
credibility of a witness, if extrinsic evidence is generally
admissible for the noncontradiction impeachment purpose; and
(3) facts recited by the witness that, if untrue, logically undermine
the witness's story.
See 1 McCormick on Evidence §49, at 232-238 (Kenneth S. Broun
ed., 6th ed., 2006).
Evidence That Is Directly Relevant to the Issues in Litigation.
Evidence that is directly relevant to substantive issues can be
introduced for its substantive value apart from any impeachment
value that it may have. In effect, the impeachment value of the
evidence is secondary. As we stated earlier, if evidence is
independently admissible, there is no need to consider whether it is
also admissible for impeachment purposes.
Evidence That Impeaches a Witness Apart from Contradiction.
The collateralness doctrine should not prohibit the use of extrinsic
evidence that both contradicts

434
 the witness and also impeaches credibility in some other way, as
long as it is clear that extrinsic evidence would be admissible for that
independent impeachment purpose (e.g., to prove bias or a prior
conviction). On the other hand, if a specific impeachment rule
prohibits extrinsic evidence as FRE 608(b) does, it would undermine
that prohibition to admit extrinsic evidence on the theory that the
evidence contradicts the witness. Consider for example, the impact of
a contrary rule with respect to FRE 608(b). In every case in which the
witness denied committing a bad act, the proponent of the extrinsic
evidence could argue that extrinsic evidence of the bad act was being
offered not to prove character for untruthfulness but to show a
contradiction. If that argument were accepted, the prohibition against
extrinsic evidence in FRE 608(b) would become meaningless.
Evidence That Logically Undermines a Witness's Story.
Contradictions that logically undermine the witness's story are also
considered noncollateral. To illustrate this third category, consider a
personal injury action in which Sadie testifies for the plaintiff and
explains that she happened to see the accident as she was walking
home from the grocery store where she had gone to purchase milk
for her children. Proof that Sadie bought beer instead of milk would
contradict her story, but such proof would not logically undermine her
testimony. What she bought is collateral. Thus, on cross-examination
counsel could question Sadie about what she bought, but the counsel
would have to accept her answers; extrinsic evidence would be
inadmissible. On the other hand, evidence that Sadie had not been in
the area of the grocery store at all suggests that she may not have
seen the critical events to which she testified. Just as there would be
no general prohibition against extrinsic evidence that Sadie was
almost blind, there should be no prohibition against the use of
extrinsic evidence suggesting that Sadie might not physically have
been in a position to observe what she claimed to have seen. In
short, proof that Sadie had not been near the grocery store on the
day of the accident tends logically to undermine her story about the
accident. Thus, it should not be regarded as collateral, and extrinsic
evidence of her absence from the store should be admissible.
 A Test for “Collateralness.” There is a commonly stated test for
collateralness that, if properly understood and applied, is consistent
with all we have said so far: Could the fact have been proven with
extrinsic evidence for any purpose except to show a (mere)
contradiction? If the answer is yes, if, in other words, there is some
relevant, permissible use for extrinsic evidence above and beyond its
value as showing a mere contradiction, it is not collateral. On the
other hand, if the only permissible purpose for offering the evidence is
to prove a contradiction, the extrinsic evidence is collateral. Thus, for
example, in our preceding illustrations it would not be collateral to
prove by extrinsic evidence (a) a prior conviction that the witness
denied, (b) facts constituting bias that the witness denied, (c)
substantively relevant events that the witness denied, or (d) Sadie's
absence from the grocery store. It would be collateral to prove (a) that
the witness was wearing a blue dress instead of a yellow dress, (b)
that the witness falsely denied committing a dishonest act, or (c) that
Sadie bought beer.

435

KEY POINTS
1. Proving a contradiction is relevant to cast doubt on the
credibility of a witness. FRE 401 and 403 govern the
admissibility of evidence for this purpose.
2. Rather than invoking FRE 401-403, some federal courts rely
on the common law prohibition against the use of extrinsic
evidence to impeach on a collateral matter to exclude extrinsic
evidence that contradicts a witness on a collateral matter.
Extrinsic evidence is collateral if the fact that the evidence
establishes cannot be proven with extrinsic evidence for any
purpose other than to show the contradiction.
3. In most cases proper application of FRE 403 would probably
lead to the same result as the common law prohibition against
extrinsic evidence to contradict on a collateral matter.
 PROBLEMS
7.30. Return to Problem 7.5 at page 401. For the following evidence,
may the prosecution (1) question Jones about it during cross-
examination, and (2) introduce extrinsic evidence if he denies
it:
(a) that Jones had ten beers at the Pub;
(b) that the woman he was speaking with at the Pub was
wearing a red dress;
(c) that Jones left the Pub at 11:00 . .?
7.31. Return to Problem 3.2 at page 148. Assume that Eddie Keller,
a 13-year-old who had been on the bus with Paul, testifies for
the plaintiff that Driver veered onto the gravel shoulder and hit
Paul. Plaintiff's counsel then asks Eddie what happened next
and he replies, “I don't know. I was scared. I went straight
home and stayed in my room until supper.” Defense counsel
has learned from Jim Tobin, one of Eddie's classmates, that
Eddie did not go straight home. Instead, he went to the local
playground where he found Jim and beat him up in order to
settle an argument that had developed earlier in the day. Can
defense counsel ask Eddie about the incident with Jim? If there
is no objection and Eddie denies the incident, can defense
counsel call Jim to testify that Eddie beat him up?
7.32. See Problem 7.31. After beating up Jim, Eddie went to the
corner drug store, where he was caught trying to steal comic
books and candy. Can defense counsel ask Eddie about this
incident? If there is no objection and Eddie denies the
attempted theft, can defense counsel call Mark Manning, the
druggist, to testify about what happened?
7.33. Defendant is charged with a liquor store robbery that occurred
Sunday shortly after noon. To establish an alibi, Witness1
testifies for Defendant as follows: “On Sunday morning at
12:15 . ., as I was walking out of church, I observed
Defendant across the street.” (Other testimony establishes that
the church and the liquor store are at opposite ends of the city.)
 Witness2 offers to testify for the prosecution that on Sunday
morning at about 12:15 . . he saw Witness1 walking out

436

of an all-night bar. Defendant objects to this evidence on the ground

that its admission would violate (a) FRE 608(b)'s prohibition
against extrinsic evidence of specific instances of conduct, (b)
the general prohibition against the use of extrinsic evidence to
impeach on a collateral matter, and (c) FRE 403. How should
the court rule?
7.34. Daniels is charged with selling cocaine to an undercover police
officer. Daniels testified on direct examination that he did not
sell the drugs. He further testified that at the time of the alleged
sale he had been playing dice with several other people, one of
whom periodically left the game and returned with cash.
Daniels suggested that the companion was the seller and that
the undercover officer identified the wrong person. On cross-
examination, the prosecutor asked if Daniels had actually seen
the companion sell the cocaine. Daniels responded negatively.
The prosecutor then asked Daniels if he was familiar with
cocaine, and Daniels responded that he had never seen
cocaine.
The prosecutor knows that Daniels tested positively for
cocaine use three times in the last two years. Can the
prosecutor inquire about these matters on cross-examination
or introduce extrinsic evidence of the tests?

E. REFLECTION ON THE IMPEACHMENT PROCESS

In our initial discussion of the difference in the inferential process

between using evidence for impeachment purposes and using
evidence for substantive purposes, we used two examples of
situations in which evidence is relevant for both substantive and
impeachment purposes but potentially admissible only for the latter
purpose. See pages 388-89, supra. One involved a witness's
inconsistent statement not under oath about the color of a traffic light
at the time of an automobile accident. On direct examination the
witness testified that the light was red. The inconsistent statement
was that the light was green. The other example involved a prior
conviction for perjury by a defendant-witness who was charged with
perjury. In both examples the permissible impeachment use of the
evidence involves an inferential chain of reasoning that arrives at an
essential element in the case by a route that is more circuitous than
the chain of reasoning required to make the evidence relevant for its
prohibited substantive purpose: This circuitous route requires the
factfinder to make an inference that what the witness says is not
reliable.
The Inconsistent Statement Case. Because of the hearsay rule the
witness's inconsistent statement is not admissible as a direct
assertion that can be relied on to prove that the light was green. The
statement is admissible, however, because its inconsistency suggests
fabrication or lack of care in making the statement that the light was
red. Thus, the witness may have been unreliable in claiming that light
was red. And, if it was not red, it must have been some other color—
green, or perhaps yellow.
The Perjury Case. Because of FRE 404(b) the witness-defendant's
prior perjury conviction is not admissible as evidence of the
defendant's character for untruthfulness to prove directly that the
defendant lied at the time of the alleged perjury. The

437

conviction is admissible, however, to suggest that the defendant is

an untruthful person who may be lying on the witness stand. Thus,
the defendant may have been unreliable in denying the alleged
perjury. This leaves as the alternative the proposition that the
defendant committed the perjury as charged.
What justifies permitting the jury to take the circuitous route but not
the direct route to the same conclusion? Even if there is a reasonable
answer to the preceding question, do you believe that trial judges are
capable of instructing juries on the distinction and that jurors are
capable of comprehending and acting on the instruction?
If the distinction between the impeachment use and the substantive
use of a prior inconsistent statement or a prior perjury conviction is
not one that judges and juries are likely to be able to appreciate and
understand, there is a fundamental problem with our current
approach to “impeachment” evidence. Moreover, it is a problem that,
at least in practice, is not adequately addressed by the balancing
process of FRE 403: In the overwhelming number of cases in which
there is more than very marginal impeachment value to evidence that
is inadmissible substantively, it will be admitted with limiting
instructions. For example, in the perjury hypothetical, the defendant is
entitled to an instruction that the prior perjury conviction is admissible
only to impeach the credibility of the defendant as a witness and that
it is not proper to infer that because the defendant committed perjury
once before it is more likely that the defendant committed perjury on
the occasion in question. If we are serious about the “substantive”
prohibitions, we should not be so ready to admit for impeachment
purposes evidence that in theory is inadmissible for substantive
purposes; or if we want to admit evidence for impeachment purposes
that theoretically is not admissible substantively, we need to rethink
the desirability of the substantive prohibitions.
One possibility would be to retain the current distinctions between
impeachment and substantive uses of evidence only for the purpose
of deciding whether or at what point evidence will be admissible. In
other words, specific acts would still be inadmissible as part of a
prosecutor's case-in-chief to prove character to show action in
accordance with character, and unsworn prior inconsistent
statements would initially be inadmissible for their truth. However, if
this type of evidence gains enough added relevance from its
impeachment value that it should be admissible for that purpose, it
should be admissible for whatever probative value it has for any
matter of consequence in the litigation. The primary benefit of this
proposal is that it would eliminate often confusing and difficult-to-
follow limiting instructions.
 ASSESSMENTS
A-7.1 FRE 608. Defendant is on trial for murder. Defendant claims self-defense and testifies
that the alleged victim followed him home and attacked him in his driveway. At trial, Neighbor
testifies that Defendant has a good reputation in the community for honesty. During cross-
examination, the prosecution asks Neighbor whether Neighbor violated her law school's
honor code two years ago. The defense objects. How should the court rule, and why?

438
A. The question is permissible, but only if the prosecutor persuades the judge that there is
a reasonable basis for believing that the violation occurred.
B. The question is permissible because the defendant first introduced character evidence.
C. The question is impermissible because it does not call for opinion or reputation
testimony.
D. The question is impermissible because Neighbor's character is irrelevant.
A-7.2 FRE 609. Defendant is on trial for aggravated assault. At trial, Defendant testifies that
he acted in self-defense. The prosecution seeks to introduce evidence that Defendant
pleaded guilty five years ago to making a false statement to a federal agent. Defendant
pleaded guilty as part of a plea agreement, after he was arrested for participating in an illegal
drug conspiracy. The false statement concerned his denial of any involvement in the
conspiracy when first questioned by federal drug agents. The defense objects. How should
the court rule, and why?
A. Admissible under FRE 609 regardless of any FRE 403 dangers.
B. Admissible under FRE 609 because the probative value substantially outweighs any
FRE 403 dangers.
C. Inadmissible because the defendant has not introduced any character evidence.
D. Inadmissible under FRE 609 because the potential for unfair prejudice substantially
outweighs the probative value of the evidence.
A-7.3. FRE 609. TRUE or FALSE: When considering the admissibility of a testifying criminal
defendant's prior conviction for impeachment purposes under FRE 609(a)(1), if a court thinks
that its probative value and its potential for unfair prejudice to the defendant are
counterbalanced, the court should exclude the evidence.
A-7.4. FRE 613. Ed Macy is charged with felonious assault. He claims not to have been the
assailant and will present an alibi defense. During his incarceration prior to trial, Macy's
cellmate told him that Wally Wilder had confessed to committing the assault. At trial, Macy
calls Wilder as a defense witness, and Wilder denies any involvement in the assault. Can
Macy (1) ask Wilder about Wilder's alleged confession to the cellmate, and (2) call the
cellmate to testify about Wilder's alleged confession if Wilder denies confessing?
A. Both items of evidence are admissible under FRE 613.
B. (1) is admissible but (2) is not.
C. (2) is admissible but (1) is not.
D. Both items are inadmissible under FRE 613.
A-7.5 Other Impeachment Techniques. Extrinsic evidence to prove a witness's bias is
admissible:
 A. Whenever it is relevant.
B. Never.
C. Only if it satisfies FRE 403 balancing.
D. Only if the witness is first given an opportunity to explain.

439

ANSWERS
A-7.1. The correct answer is A. Under FRE 608(b), witnesses can be asked about their own
specific acts that relate to untruthfulness. Here, violating the honor code is relevant for
Neighbor's character for untruthfulness; however, the prosecution must have a good faith or
reasonable basis for believing that the act occurred. B is incorrect because the prosecution
can ask this question regardless of whether the defendant first introduces character
evidence. C is incorrect because FRE 608(b) permits questions about specific acts. D is
incorrect because a witness's character for truthfulness is relevant.
A-7.2. The correct answer is A. Because the defendant testified, the evidence is admissible
under FRE 609(a)(2). The crime involved a false statement and thus is admissible without
the need for FRE 403 balancing or “reverse 403” balancing for criminal defendants.
Therefore, B and D are incorrect. C is incorrect because the evidence is admissible
regardless of whether the defendant introduces character evidence.
A-7.3. TRUE. When the witness is a criminal defendant, “reverse 403” balancing applies.
FRE 609(a)(1)(B). According to the rule, the evidence must be admitted only when probative
value outweighs prejudicial effect to the defendant. Therefore, when the two are
counterbalanced the evidence should be excluded.
A-7.4. The best answer is A. Both are permissible under FRE 613. Even though Wilder is a
defense witness, parties can impeach their own witnesses. FRE 607. External evidence is
also admissible, subject to FRE 403. If Wilder denies making the confession, the probative
value of the external evidence should be sufficiently high to survive an FRE 403 objection.
A-7.5. The best answer is C. FRE 403 governs the admissibility of evidence of bias—both
the questioning of witnesses and external evidence. A is incorrect because some relevant
bias evidence should be excluded by FRE 403, and B is incorrect because some relevant
bias evidence should be admissible under FRE 403. D is incorrect because there is no
requirement that witnesses must first be given an opportunity to explain any bias evidence.
441

CHAPTER EIGHT
THE HEARSAY RULE
The general rule excluding hearsay is one of the hallmarks of the
Anglo-American law of evidence. It establishes as a general
proposition that when statements are made by people outside of
court, those statements are not admissible when offered to prove the
truth of the matters asserted therein. But recall the excerpt from
Thayer's Treatise quoted in Chapter Three: “[T]he law has come into
the shape of a set of primary rules of exclusion; and then a set of
exceptions to these rules. . . .” James Bradley Thayer, A Preliminary
Treatise on Evidence at Common Law 26 (1898). The hearsay rule
illustrates this principle. FRE 802 is the primary rule of exclusion. It is,
however, subject to 8 exceptions and 29 exemptions pursuant to
which many kinds of hearsay statements are admitted.
We will examine the exemptions in Section C and the exceptions in
Sections D, E, and F of this chapter. Initially, however, it is important
to understand what hearsay is, how it is defined, and what justifies its
exclusion from the factfinding process of trial. Remember that the
classification of evidence as hearsay or not hearsay is not necessarily
determinative of admissibility. Evidence of an out-of-court statement
that is not hearsay may be inadmissible for some other reason (e.g.,
privilege), and evidence that is hearsay may be admissible under one
of the exemptions or exceptions. Your desire ultimately to admit or
exclude a particular out-of-court statement should not influence your
initial analysis of whether that statement falls within the definition of
the exclusionary rule.

A. THE GENERAL RULE OF EXCLUSION AND THE DEFINITION

OF HEARSAY
Exclusion of hearsay requires a test that judges apply to individual
items of evidence. Under FRE 801(c), hearsay is a statement offered
“to prove the truth of the matter asserted.” This brief definition of
hearsay is deceptively simple. Its application will require an
understanding of the reasons for the hearsay prohibition—reasons
that are captured only imperfectly in any brief doctrinal definition.

1. FRE 801 and 802

442
RULE 801. DEFINITIONS THAT APPLY TO THIS ARTICLE; EXCLUSIONS FROM
HEARSAY

(a) Statement. “Statement” means a person's oral assertion, written assertion, or

nonverbal conduct, if the person intended it as an assertion.
(b) Declarant. “Declarant” means the person who made the statement.
(c) Hearsay. “Hearsay” means a statement that:
(1) the declarant does not make while testifying at the current trial or hearing; and
(2) a party offers in evidence to prove the truth of the matter asserted in the
statement.
(d) Statements That Are Not Hearsay. A statement that meets the following conditions
is not hearsay:
(1) A Declarant-Witness's Prior Statement. The declarant testifies and is subject to
cross-examination about a prior statement, and the statement:
(A) is inconsistent with the declarant's testimony and was given under penalty of
perjury at a trial, hearing, or other proceeding or in a deposition;
(B) is consistent with the declarant's testimony and is offered:
(i) to rebut an express or implied charge that the declarant recently fabricated it
or acted from a recent improper influence or motive in so testifying; or
(ii) to rehabilitate the declarant's credibility as a witness when attacked on
another ground; or
(C) identifies a person as someone the declarant perceived earlier.
(2) An Opposing Party's Statement. The statement is offered against an opposing
party and:
(A) was made by the party in an individual or representative capacity;
(B) is one the party manifested that it adopted or believed to be true;
(C) was made by a person whom the party authorized to make a statement on
the subject;
(D) was made by the party's agent or employee on a matter within the scope of
that relationship and while it existed; or
(E) was made by the party's coconspirator during and in furtherance of the
conspiracy.
 The statement must be considered but does not by itself establish the declarant's
authority under (C); the existence or scope of the relationship under (D); or the
existence of the conspiracy or participation in it under (E).

RULE 802. THE RULE AGAINST HEARSAY

Hearsay is not admissible unless any of the following provides otherwise:

a federal statute;
these rules; or
other rules prescribed by the Supreme Court.

443

Our initial discussion focuses on FRE 801(a)-(c) and 802. We

discuss FRE 801(d) in Section C.

2. Explanation of FRE 801 and 802

To appreciate the significance of the general rule of exclusion,
consider that a friend of yours, Sally, tells you that she saw a gray
SUV run through a red light and hit a pedestrian. Would you believe
Sally? Would you rely on her information? If you know that Sally is a
trustworthy person, and that she usually is a careful observer of
things and has a good memory, you would probably have little reason
to doubt what she says. You would view Sally as a reliable source of
information about the accident. We learn many useful things about
people, events and conditions from what others tell us.
Sally's knowledge about the accident would be particularly useful in
a lawsuit brought by the pedestrian against the driver of the SUV.
Sally herself could be called to testify as a witness. In response to a
question about what she saw, she would testify: “On June 1, I
observed the gray SUV run a red light and hit a pedestrian.” But now
assume that Sally made this same statement to her friend George
after the accident. Subsequently, George is called as a witness to
testify that “On June 2, Sally told me that on June 1 she had seen a
gray SUV run a red light and hit a pedestrian.” Sally's own testimony
would be welcome in any courtroom in America. But George's
testimony would be excluded by the hearsay rule. Why? Apply the
terms of FRE 801(a)-(c): George's testimony describes (1) a
statement (an “oral assertion”); (2) the statement is made by a
declarant (Sally is “the person who made the statement”); (3) the
statement was not made by Sally while testifying at the current trial or
hearing; and (4) the statement is being offered by the pedestrian to
prove the truth of the matter asserted by the declarant (that the gray
SUV ran the red light). Thus, Sally's statement is hearsay and
George's testimony about that statement would consequently be
inadmissible under FRE 802.
Notice that the term hearsay applies to Sally's statement because
when she made it she was an out-of-court declarant; the hearsay rule
operates to exclude evidence of that statement no matter how it is
presented in court—through testimony such as George's, through a
letter Sally wrote to George, through her diary, through a tape-
recording of Sally speaking to George, or even if Sally testified about
her own out-of-court statement. And, by the way, there is no
traditionally recognized hearsay exception that could make Sally's
out-of-court statement admissible.
a. The Relevancy of Sally's Testimony Depends on Generalizations About Sally's
Testimonial Qualities

Why should Sally's statement of belief about the gray SUV be

admitted if Sally says it in court as a witness, but be excluded if
George reports her statement to the jury? The answer to this
question, which involves an explication of hearsay policy, begins with
relevancy. Under FRE 401, Sally's testimony as a witness is offered
to prove that it is more likely that the SUV did run the red light and hit
a pedestrian. We know from our study of impeachment in Chapter
Seven that inferences about Sally's narration,

444

sincerity, perception, and memory are necessary to connect her

statements to the fact of consequence. These inferences about
Sally's four testimonial qualities, and the generalizations that underlie
them, are shown in Diagram 8-1. The final inference—from the
accuracy of Sally's belief to the conclusion about the event itself—is
an inference that does not rest on a generalization about one of
Sally's testimonial qualities. Rather, it expresses the assumption
underlying the model of rational factfinding that people's beliefs about
the world can and do generally correspond to reality.
It is possible that, contrary to the generalizations articulated in
Diagram 8-1, Sally did not speak accurately and honestly, or did not
perceive accurately or remember accurately the event involving the
SUV. If this is so, then relying on her belief about this event generates
risks of error. We refer to these four risks as testimonial dangers, or
as hearsay dangers when an out-of-court statement is being
considered.
445

A narration danger is present when a person uses a wrong or

ambiguous word or expression, by failing to articulate in sufficient
detail, or by otherwise conveying a misleading version of what s/he
intended to say. For example, Sally may mistakenly call the SUV's
color gray, despite intending to report its color as green. To illustrate
ambiguity, consider a person who says, “Jon had a great catch” and
try to determine whether s/he is referring to fishing or baseball. The
answer may be clear from the context within which the statement is
made, but ambiguity problems arise when the hearer or reader might
misinterpret what the speaker is thinking and communicating. Thus,
even when Sally is sincere and has an impeccable memory of the
event after properly perceiving it, the narration danger means that an
inference from her words to what she means to say—FOC-1 in the
Diagram 8-1—may be incorrect.
If Sally is trying to deceive the listener (a sincerity danger), her
words will misrepresent what she really perceived and remembers. If
Sally is lying, then the inference from Sally's words to her belief about
the SUV that we (or the jury) as listeners attribute to Sally—FOC-2 in
the Diagram—will not correspond to what she actually knows about
the accident.
Inferences about Sally's perception and memory affect the congruity
between what Sally honestly believes she saw and what actually
happened. To prove that the SUV did fail to stop at the red light,
Sally's belief about what happened must be accurate—Sally must
have observed and understood the incident properly. The prospect of
her not observing and understanding the event properly is called the
perception danger. Perception, as used here, includes impressions
received from any of the person's senses. The identification of an
odor or the hearing of another person's speech might present
perception issues. A memory problem arises when Sally forgets
some or all of the details of the event she perceived; for example, that
the gray car was a truck rather than an SUV (a memory danger). If
there are perception or memory problems with Sally's statement, then
the inferences of perception (FOC-3) or memory (FOC-4) will be
incorrect and the ultimate inference that Sally's belief accurately
reflects what the SUV did (the FOC(EE)) will also be incorrect.
To summarize: We cannot know with absolute certainty whether
Sally is lying or using the wrong or ambiguous words, or whether she
misperceived or has forgotten what happened. Each of these risks—
faulty narration, insincerity, faulty memory, and misperception—
affects the trustworthiness of Sally's testimony. We assume, on the
basis of our common experience, that people generally tend to be
truthful and accurate in their statements. Sally's statement that the
gray SUV ran the red light is relevant to the trial and we leave it to the
jury to evaluate her testimonial qualities.
b. The Relevancy of Sally's Hearsay Statement Also Depends on Generalizations
About Sally's Testimonial Qualities

The very same inferences about Sally's testimonial qualities are

necessary if Sally's statement is presented to the jury as hearsay.
This can be illustrated with the example of George testifying about
Sally's out-of-court statement to the jury. The inferential chain of
reasoning shown in Diagram 8-2, an abbreviated version of Diagram
8-1, would be necessary to the relevancy of George's testimony.

446

As you can see, inferences about Sally's testimonial qualities are

the same in form and in basic content as they were in Diagram 8-1.
Essentially, then, the content of the jury's inferential reasoning
process about the probative value of what Sally says about the SUV
is the same whether she testifies or not. Moreover, the same potential
risks of error, associated with Sally's faulty narration, insincerity, faulty
memory, and misperception, are present here as well.
The relevance of hearsay has also been illustrated with a
“testimonial triangle,”1 which collapses the four inferences into two
legs of a triangle:

447

The triangle starts with the declarant's words—spoken or written

outside of court—which are usually presented to the jury through
testimony or an exhibit. The left leg of the triangle from A to B
represents the inference from the declarant's words to the declarant's
state of mind of “belief,” an inference that requires reliance on the
declarant's sincerity and narrative ability. The right leg from B to C
represents the inference from the declarant's state of mind of belief to
the existence of an event that caused that belief. This inference
requires reliance on the declarant's perception and memory (and,
again, on our general assumption that accurate beliefs correspond to
real events). Thus, the relevance of Sally's statement requires both
legs of the testimonial triangle, and requires that we make the
inferences about all four of Sally's testimonial qualities. Once again,
this is the same structure of inferential reasoning that the jury would
make if Sally were presented to testify as a witness. If so, why then
does the hearsay rule differentiate so sharply between Sally's
admissible statement as a witness and her inadmissible statement as
a hearsay declarant?
c. Hearsay Policy Differentiates Between Witnesses and Hearsay Declarants
The most common answer to this question focuses on three factors
that differentiate witnesses (like Sally speaking in court) from hearsay
declarants (like Sally speaking out of court). First, the witness in the
courtroom is always under oath, thereby reducing the likelihood of
insincerity, whereas a declarant's out-of-court statement may or may
not be made under oath. Moreover, the solemnity and formality of the
court proceedings may cause the witness to be particularly careful
about properly narrating the event.
Second, the jury is able to observe the demeanor of the in-court
witness. Observing how the witness responds and reacts to
questions, particularly on cross-examination, may give the jurors a
somewhat better sense of the witness's sincerity, narrative ability,
perception, and memory than they would get from having the content
of the statement related to them by some third person. While
demeanor evidence is often criticized as an ineffective indicator of
outright insincerity, its use in evaluating other aspects of witness and
party behavior has been noted. The opportunity for the trier of fact to
assess the credibility of witnesses in person is a principal reason for
the deference that appellate courts afford to factual findings at the
trial level. See, e.g., Olin Guy Wellborn III, Demeanor, 76 Cornell L.
Rev. 1075, 1077 (1991).
Third, and most important, the in-court witness is subject to cross-
examination, which the opponent may use to elicit facts from the
witness that are relevant to all four of the witness's testimonial
qualities. We have seen in Chapter Seven how the topics of
impeachment can all be addressed through cross-examination of a
witness. The witness's answers, and the behavior of the witness in
responding to questions, may clarify ambiguity, reveal mistakes in
narration, reveal weaknesses in perception or memory, and provide
information about the witness's character for truthfulness, the
witness's bias, or the witness's motive to misrepresent the facts of the
case. In addition, fear of cross-examination may motivate witnesses
to be truthful and accurate in their testimony.
Without cross-examination, it is feared, hearsay statements may
bear more testimonial dangers that are not exposed to the jury and
hence may be less reliable than

448

in-court testimony. Some witnesses, of course, may beat the system

and lie quite persuasively. But to recognize that possibility is to
recognize only that our adjudicatory system is not perfect. It is a
truism, and many trial lawyers believe, that in the context of our
adversary system, cross-examination is “beyond any doubt the
greatest legal engine ever invented for the discovery of truth.” 5 John
Henry Wigmore, Evidence in Trials at Common Law 32 (James
Chadbourn ed. 1974).
The problem with hearsay is succinctly stated by the District of
Columbia Circuit:
The problem with hearsay is that it deprives the defendant of the opportunity to cross-
examine the person who uttered the statement at issue. Here, the government
presented allegations of prior drug dealing, and the defendant was unable to cross-
examine the person who made them. At the time of the testimony, that person—the less-
than-reputable convict, Thomas Rose—was sitting in a federal correctional institution.
Meanwhile in court, telling Rose's story, was the clean-cut FBI agent, Neil Darnell. Thus,
Evans had no opportunity to “test the recollection and sift the conscience” of his accuser
. . . Cross-examination may be the “greatest legal engine ever invented for the discovery
of truth,” . . . but it is not of much use if there is no one to whom it can be applied.
[United States v. Evans, 216 F.3d 80, 84 (D.C. Cir. 2000).]
However, even though cross-examination of a hearsay declarant is
usually not possible, it is not the only way to expose potential hearsay
dangers. A hearsay declarant's inconsistent statements, bias against
one of the parties, or untruthful character may be shown through the
testimony of other witnesses or exhibits. FRE 806 explicitly permits
impeachment of hearsay declarants: “When a hearsay statement . . .
has been admitted in evidence, the declarant's credibility may be
attacked . . . by any evidence that would be admissible for those
purposes if the declarant had testified as witness.” Furthermore,
cross-examination may not always contribute to accurate factfinding.
Cross-examination leads to the exposure of a witness's deliberate
falsehood much less frequently in real life than in courtroom dramas.
It may yield only the jury's intuitive sense about a witness's general
credibility. But some witnesses may appear to be less than reliable,
when in fact they are only shy or nervous or scared. Stereotypes can
also affect the jury's perception of who is, or is not, a reliable witness.
Nevertheless, it is certainly more difficult and burdensome for the
opponent to obtain and present impeaching facts about hearsay
declarants. Cross-examination of a live witness does operate as an
efficient means of providing relevant information about a witness's
testimonial qualities to the jury. And the Evans case above also
shows that a proponent could use hearsay as a strategic choice to
keep a less-than-convincing declarant off the witness stand. For all
these reasons, the opponent's lack of ability to cross-examine a
hearsay declarant is the primary reason for excluding hearsay
evidence.
Hearsay policy may be summarized as follows: A witness's oath,
demeanor, and cross-examination are thought to reduce testimonial
dangers and to make in-court testimony more reliable. Cross-
examination also increases the likelihood that testimonial dangers—
sincerity, narration-ambiguity, perception, or memory problems—will
be exposed and evaluated by the jury. And it generates information
that helps

449

the jury decide whether to rely on a witness's statement. Therefore,

because of these differences between a witness's in-court testimony
and declarant's out-of-court statement, hearsay is viewed as less
reliable and more difficult for the jury to evaluate. It is excluded in the
interest of increasing the accuracy of jury decisionmaking. And we
remind you that whenever the relevance of an out-of-court statement
requires inferences about all four testimonial qualities of the
declarant, or the complete trip around the triangle, then hearsay
policy is implicated.
It is not an argument for excluding hearsay that the witness who
reports a hearsay statement to the jury while on the stand (like
George) may be lying, or be mistaken, about what the hearsay
declarant (like Sally) said. All testimony bears risks of misperception,
faulty memory, and fabrication. A witness who reports hearsay is no
different. We rely on oath, the formalities of the courtroom, demeanor,
and cross-examination to help the jury evaluate the testimonial
qualities of all witnesses (including George).
Hearsay policy could operate as a rule of preference. If a hearsay
declarant like Sally is available to testify as a witness, it may be
preferable to have her testify at the trial. But what if the hearsay
declarant is not available to testify? Sally may be ill or out of the
country. If we still want to exclude her hearsay statement, we are not
talking about a rule of preference but about whether the jury will hear
Sally's information at all. If Sally is unavailable, how critical is it to
provide the opportunity for the opponent to cross-examine her?
Should we exclude relevant evidence for the sake of whatever benefit
cross-examination might have brought? See, e.g., Justin Sevier,
Testing Tribe's Triangle: Juries, Hearsay, and Psychological Distance,
103 Geo. L.J. 879, 923-924 (2015) (demonstrating experimentally
that “jurors attend to the infirmities that lurk beneath the evidence
provided by out-of-court hearsay declarants” and properly discount
the credibility of such evidence). It is still much too soon for you to be
formulating any definitive judgments about these issues. But you
should keep them in mind as you continue to study the definition of
hearsay.

KEY POINTS
1. Hearsay is a person's statement (a) that is made at a time
other than while the person is testifying at the hearing in which
the statement is offered and (b) that is offered to prove the
truth of the matter asserted in the statement.
 2. A hearsay statement may be oral or it may be written.
3. Hearsay policy is to exclude hearsay because there is no oath,
no observation of demeanor, and no opportunity to cross-
examine the hearsay declarant to determine if there are
sincerity, narration-ambiguity, perception, or memory problems
(the hearsay dangers).
4. If an out-of-court statement is offered to prove the sincere
belief of the declarant in the matter asserted, and then to
prove the accuracy of that belief about an event, then all four
testimonial qualities of the declarant are involved in the
relevancy of the statement and hearsay policy is implicated.

450

PROBLEMS
8.1. Return to Problem 3.2, Pedroso v. Driver, at page 148. If the
defendant denies (on line 00) that she received a speeding
ticket, the plaintiffs will offer the ticket itself into evidence. How
can the ticket be authenticated? Defendants will object that it is
hearsay. Is it?
8.2. Return to Problem 3.3, United States v. Ray, at page 149. June
Jacobs' assistant would testify for the prosecution that on the
afternoon of March 14, 2015, Jacobs told the assistant that she
had just gotten some bad news and that she was going to
Ray's office to tell him. Would this testimony be hearsay? What
if Jacobs sent a text message to the outside auditor Andrews:
“Just told CEO about loss projections.” Hearsay? What if
Jacobs testified under oath to a grand jury that on March 14,
2015 she told Ray about the loss projections?
8.3. Return to Problem 3.4, State v. Blair, at page 150. The
prosecutor seeks to admit the following out-of-court statements
by Norma. Who would testify to present this evidence? Are the
statements hearsay? Do you think they should be excluded?
 (a) A friend of Norma's says that a month before the attack,
Norma told the friend, “Last week I told Jimmy that I was
going to break up with him and leave the Bay Area soon.
Jimmy was furious.”
(b) In 2008, Norma's mother visited her apartment. Norma
was upset and crying. Norma said to her mother that
Jimmy had lost his temper and hit her earlier that day, and
that when she tried to leave her apartment, he threw a
vase at her. The mother saw the shattered vase on the
floor.
(c) Inside the locked drawer in which police found
photographs of Norma showing severe bruising and date-
stamped July 25, 2009, a handwritten diary was also
found. On the page dated July 21, 2009, it stated: “Jimmy
beat me after an argument.”

3. Elaboration of FRE 801 and 802: Implications of the General

Rule of Exclusion
a. Identifying What a Hearsay Statement Is Offered to Prove
The truth-of-the-matter-asserted test of FRE 801(c) requires the
identification of the “matter” that an out-of-court statement is offered
to prove. Looking at the testimonial triangle in Diagram 8-3 on page
446, supra, the event at point C—that the SUV failed to stop at the
red light—is the fact of consequence that, for purposes of FRE
801(c), the declarant's utterance is offered to prove. This fact must
then be connected to an essential element in a lawsuit. The line
running from point C to “Issue” represents any further inferences that
may be necessary to reach the essential element in the case. In this
hypothetical, the only remaining inferential task after reaching point C
is to decide whether failing to stop at the red light violated the
requisite standard of care and therefore satisfies the essential
element of negligence.

451
 In many cases, however, after reaching point C, several additional
inferences will be necessary for the utterance to be relevant to an
essential element in the case. For example, George might testify that
Sally said to him, “I had the green light and was just about to cross
Main Street when I saw the gray SUV coming toward me down Main
Street. It passed in front of me and hit a pedestrian who was also
crossing Main Street with the green light.” For this evidence to be
relevant, the complete trip around the testimonial triangle is
necessary to prove that Sally's statements—that she and the
pedestrian had the green light—are true. Then, further inferences can
be made: first, that if Sally and the pedestrian did have the green
light, the red light must have been showing for oncoming traffic on
Main Street; second, that the SUV therefore had the red light; third,
that the SUV therefore failed to stop at this red light as illustrated in
Diagram 8-4.

Are Sally's out-of-court statements to George hearsay? Clearly, they

are statements made by a declarant not while testifying at the trial.
Applying FRE 801(c), are they offered to prove the truth of the matter
asserted? You might answer “no,” because it seems that her
statements are offered to prove that the driver of the SUV failed to
stop at the red light and Sally's statement did not assert this. But this
is not a correct analysis. The truth-of-the-matter-asserted test should
be applied to the last inference that depends on Sally's testimonial
qualities. This is FOC-1—that Sally did have the green light. Sally's
statement is being offered to prove the truth of this assertion. Only if
FOC-1 is true can the conclusion about the driver being negligent be
drawn. The truth of FOC-1 rests on generalizations about all four of
Sally's testimonial qualities; thus hearsay policy is implicated. The
further inferences that connect Sally's statements to the essential
element in the case do not relate to her beliefs and do not require any
further reliance on her narrative ability, sincerity, perception, or
memory. Thus, they do not implicate hearsay policy. Do not be misled
into applying FRE 801(c) to the final conclusions—that the light for
the SUV was red, that the SUV failed to stop at the red light, or that
the SUV driver was negligent. Sally's statements are hearsay.

452

They are offered to prove the truth of the matters “asserted in the
statement,” as FRE 801(c) defines hearsay.
This same analysis must be made each time you apply the truth-of-
the-matter-asserted test of FRE 801(c). If an inference that the
matters contained in the declarant's assertions are true is required for
relevance, then the assertions are “offered to prove” those matters,
even if those matters are just a necessary step in the chain of
reasoning that continues to some further conclusion.
b. Testimony by Witnesses About Their Own Out-of-Court Statements May Still Be
Hearsay
FRE 801(b) defines a “declarant” as a person who made a
statement. This term generally is used to refer to people when they
made statements outside of court, and we have used it that way in
the preceding sections. When people make statements to the jury in
court, under oath, and subject to cross-examination, they are,
obviously, functioning as witnesses. When witnesses testify in court
about statements that they themselves made not while testifying in
the current trial or hearing, those statements are defined as hearsay
by FRE 801(c). For example, in the case of the gray SUV, suppose
that Sally testifies as a witness that “right after the accident, I
remember telling George that the gray SUV ran the red light.” Sally is
testifying about her own hearsay statement. In this circumstance the
hearsay declarant (Sally) is in fact in the courtroom and can be cross-
examined. Some commentators have therefore argued that if
witnesses report their own out-of-court statements, their evidence
should not be regarded as hearsay. See, e.g., Edmund M. Morgan,
Hearsay Dangers and the Application of the Hearsay Concept, 62
Harv. L. Rev. 177, 192-193 (1957). Others disagree, contending that
cross-examination is less valuable when it is conducted long after the
statement was made. And, if a witness's prior statements were not
hearsay, witnesses could refer to and rely on their own prior prepared
statements in their testimony. This is undesirable since the witness
was not subject to cross-examination or to the scrutiny of the jury
when preparing those statements. The various positions in the debate
over the hearsay status of prior statements of witnesses are
described in the Advisory Committee Note to FRE 801(d)(1). Under
FRE 801(c), prior statements of witnesses are defined as hearsay
unless specifically exempted. See FRE 801(d)(1), which we will
examine in Section C infra.
c. Hearsay, Lay Opinions, and the Firsthand Knowledge Rule
You have previously encountered the lay opinion rule (FRE 701)
and the firsthand knowledge rule (FRE 602) in Chapter Four. Here we
address briefly the relationship between those rules and the hearsay
rule.
Consider a situation in which Ellen, a bystander, is prepared to
testify in the suit between the pedestrian and the driver of the gray
SUV. Ellen might testify that “The gray SUV ignored the red light and
hit the pedestrian in the crosswalk.” There are three possible bases
for Ellen's belief: First, she may have observed the entire incident;
second, Sally may have told her what happened; or third, on the
basis of her observation of the position of the car and the pedestrian
after the accident, she could

453
 have concluded that the defendant's SUV must have run the red
light. If the second variation were true, Ellen would in effect be
relating a hearsay statement. She has no firsthand knowledge of the
event herself. In the third variation, Ellen's testimony that the
defendant ignored the red light would be a lay opinion, based on her
firsthand knowledge of the position of the car and the person who
was hit. If she testified about the facts she did observe, instead of just
stating her conclusion, the jury might be just as capable as she is to
draw the appropriate inference.
If the opponent is unsure about the basis for Ellen's testimony, the
initial objection can always be “lack of firsthand knowledge.” The
objecting attorney should immediately ask the judge to permit inquiry,
outside the presence of the jury, into the basis for Ellen's testimony.
The opponent should ask, “How do you know that the defendant
ignored a red light?” If this inquiry reveals that Ellen is in fact relating
hearsay (“Sally told me what happened”), the objecting attorney can
then change the objection to hearsay. If the inquiry reveals that Ellen
is expressing an opinion that is not based on her observation of the
accident itself, then the objection would be lack of firsthand
knowledge or a lay opinion objection. What is important, as a
practical matter, is for the attorney to make some objection that will
get the judge's attention and permit inquiry, preferably without the jury
listening, into the basis for the witness's knowledge. Once the basis
of knowledge is established, it should be relatively easy for the
parties to address the question of why the evidence should or should
not be admissible.
d. Multiple Hearsay
On some occasions evidence will contain multiple hearsay.
Consider, for example, the pedestrian's attempt to prove that the gray
SUV went through a red light by offering a properly authenticated
police report that states “George reports that 'Sally told me that the
gray SUV ran the red light.' ” Here we have multiple hearsay. We care
about the sincerity, narration, perception, and memory of the police
officer who wrote the report, as well as both Sally and George, and
none of them is on the witness stand subject to cross-examination
when making their statements.
If the plaintiff called George as a witness to testify from memory
about what Sally said, we would have single hearsay. If the plaintiff
called the police officer as a witness to testify about what George
said, we would still have double hearsay. Sally is still a declarant
because her statement continues to be offered for its truth. In
addition, George is a declarant as well. In multiple hearsay situations,
the evidence will be inadmissible unless there is a hearsay exception
or exemption for each layer of hearsay. FRE 805 provides that
“[h]earsay within hearsay is not excluded by the rule against hearsay
if each part of the combined statements conforms with an exception
to the rule.”

KEY POINTS
1. If a statement made outside of court is offered to prove the
truth of what it asserts, it is defined as hearsay even though
the declarant is the witness who is testifying about the
statement.

454

2. A hearsay objection is appropriate after determining that a

witness does not have firsthand knowledge of the events
testified to, but is relying on what others have said.
3. Some hearsay statements include additional hearsay within
them. In such cases of multiple hearsay, each hearsay
component must be admissible through an exception or
exemption.

PROBLEMS
8.4. Return to Problem 3.5, Broadback v. Trapp, on page 150.
During his own testimony, plaintiff Broadback testifies as
follows:
(a) “I told the ambulance driver that I felt tremendous pain
after my collision with Trapp.”
The ambulance driver then testifies that one of Broadback's
teammates spoke to her on the way to the hospital:
(b) “The teammate told me that 'Trapp has always had it in
for Broadback.' ”
(c) “The teammate also said that he heard Trapp say 'I did
this on purpose.' ”
Are any of these statements objectionable as hearsay?
8.5. John and Mary Smith had a son, Brent, who was born on
August 20, 1976. John and Mary were killed in a plane crash,
and their son, if he survived them, was entitled to inherit their
entire estates. In a probate proceeding in December 2000, an
individual offers to testify as follows to establish his right to
inherit the assets of John and Mary Smith: “My name is Brent
Smith. I was born on August 20, 1976. I am 24 years old. I am
the son of John and Mary Smith.” Is any of this testimony
objectionable as hearsay?

4. Explanation of FRE 801(c): Nonhearsay Statements with No

Hearsay Dangers
Not all out-of-court statements are hearsay. A critical aspect of the
definition of hearsay is that, under the proponent's relevance theory,
the statements are offered to prove the truth of the matters they
assert. Many out-of-court statements are not offered for this
relevance theory; they are offered for a nonhearsay use.
a. Nonhearsay Uses
In our hypothetical concerning the gray SUV and the pedestrian,
consider the following testimony of Sally about an event she
witnessed: “In the morning, just before the accident, when I was
getting gasoline at the service station, I heard Mike, a mechanic, say
to the defendant who was driving a gray SUV, 'Your brakes are in bad
shape. It would be dangerous for you to drive that SUV.' ” Is Mike's
statement hearsay? It is a statement made by a declarant who is not
testifying at trial, but is it offered for

455

the relevance theory of proving the truth of the matter Mike is

asserting? The proponent of Sally's testimony, the plaintiff, might well
argue as follows:
Your Honor, we are not offering this evidence to prove the truth of the matter asserted by
the mechanic—that the brakes were in fact bad. Rather, we are offering the evidence to
prove only that the mechanic spoke those words. This is relevant to show that the
defendant had notice of the dangerous condition of his brakes before he got into his car
and drove through the red light. One of the things that we must prove in order to prove
one of our claims of negligence is that the defendant either knew or should have known
about the dangerous condition of his brakes. This out-of-court statement is relevant to
show that the defendant heard it, that he had knowledge that his brakes were bad, and
that he should have had his brakes repaired.

This theory of nonhearsay relevance is known as “effect on the

listener.” Under this theory, evidence of Mike's statement is not
hearsay. Sally's testimony tends to prove that Mike's statement was
made, and Mike's statement is relevant for what is called the
“nonhearsay” use of “notice.” It tends to prove that the driver heard
these words and knew his brakes were bad, a fact of consequence in
the case. In terms of FRE 801(c), the proponent is not offering Mike's
statement to prove that the matters asserted are true. In terms of the
inferential process in Diagram 8-1, the proponent is not offering
Mike's statement to prove that Mike's beliefs about the condition of
the brakes are accurate in order to prove that the brakes were bad.
Indeed, it is not being offered to prove anything about the Mike's
belief. This can be illustrated with the testimonial triangle, below.
The line from the declarant's utterance at point A to the Issue
represents the inference required to use Mike's statement to prove
the fact of consequence—that the driver of the SUV had notice that
his brakes were bad. The relevance of the evidence does not depend
on making the inference from A to B or from B to C. Relevancy does
not depend on what belief was in Mike's mind, or on whether that
belief was accurate and corresponded to some event in the real
world. Stated another way, relevance does not depend on Mike's
memory, perception, sincerity, or narration. Therefore, hearsay policy
is not implicated. There is no need to be concerned about the lack of
oath, demeanor, and cross-examination of Mike.

456

Effect on the Listener. As we noted, the proponent of Mike's

statement is offering it for the relevant nonhearsay use of showing its
effect on the listener. Arguably, given the warning, the driver of the
SUV had notice and therefore had the opportunity to respond. How
the warning affected him—his conduct in responding to it—is relevant
to whether he breached a requisite duty of care, which is an essential
element of a negligence case. Under this theory of relevance, Mike's
testimonial qualities become virtually insignificant, as shown in
Diagram 8-6.
 Of course, we do care about whether Mike spoke any words at all
(is Sally lying?), whether Sally heard the words correctly, and
whether, at the time she testifies, Sally remembers accurately what
was said. But Sally is a witness, making her statement in court, under
oath, and can be cross-examined on all these points. The proponent's
theory of relevance—that the driver was unreasonable in disregarding
Mike's warning—depends on Mike's apparent sincerity, not on Mike's
actual sincerity. It also requires that the driver hear Mike's statement
—thus, that Mike's words were spoken loudly enough for the driver to
hear. Anybody who heard the warning—Sally, Mike himself, a
bystander—can testify about the loudness of the warning and the
apparent sincerity with which it was given. In his own defense, the
driver of the SUV may claim that it was reasonable for him to
disregard what the mechanic said because Mike was always joking
about brakes. But that is a defense, and does not alter the
nonhearsay status of Sally's testimony for the plaintiff as to what she
heard Mike say.
Out-of-court statements offered to prove their effect on the listener
are relevant in many different kinds of cases. The classic English
hearsay law decision, Subramaniam v. Public Prosecutor [1956] 1
W.L.R. 965, provides a vivid illustration. Subramaniam was accused
of aiding and abetting terrorists and pled not guilty by reason of
duress. He took the stand to testify about his out-of-court
conversations with terrorists that included the terrorists' threat to kill
him if he did not help them. The trial court

457

excluded this part of Subramaniam's testimony as hearsay, but the

Privy Council (the British Commonwealth's highest court) disagreed.
It held that Subramaniam did not purport to prove that the terrorists'
statements were true. Rather, he wanted to prove that those
statements made him fear for his life and do what the terrorists
wanted him to do because of that fear. These facts made the defense
of duress available to him. The same is true about different rules of
substantive law that make liability depend on the reasonableness of a
listener's response to warnings, notices, and instructions. For
example, in a civil rights action for an unwarranted shooting by police
officers, brought against the officers and their supervisors, prior
complaints charging abuse by one of the officers were not hearsay
because they were offered to show the failure of the supervisors to
respond to those prior complaints. Gutierrez-Rodriguez v. Cartagena,
882 F.2d 553, 575 (1st Cir. 1989). The effect of a statement can also
be to create a specific state of mind, such as knowledge, good faith,
provocation, or reasonable apprehension of bodily harm. This state of
mind may be an essential element in a civil or a criminal case. For
example, whether a police officer acted with “probable cause” in
making an arrest may be determined by what the officer was told the
arrested person was doing. Reports of “homosexual violence” among
prison inmates to prison officials are relevant to prove the officials'
“deliberate indifference”—the state of mind required in a civil rights
suit. Roland v. Johnson, 933 F.2d 1009 (6th Cir. 1991). In a case
involving the issue of bad-faith denial of insurance coverage,
appraisal reports were not offered to show the amount of loss actually
suffered, but instead to show what information the insurance
company had when it denied the claim. Talmage v. Harris, 486 F.3d
968, 975 (7th Cir. 2007). Finally, statements made to a listener can
provide motive for conduct, and thus are relevant to explain the
listener's subsequent behavior.
Legally Operative Facts. Another relevant nonhearsay use for an
out-of-court statement is when the statement is itself a legally
operative fact. For example, suppose Paul says to Sarah outside of
court, “I offer to sell you my five-year old horse for $500.” To prove the
age of the horse, Paul's statement to Sarah is hearsay. However, in
an action to establish that there was an offer for the sale of the horse,
Sarah—or Paul or anyone else who heard the words—could testify to
what Paul said. Under the substantive law of contracts, the words are
themselves the event to be proved—the offer. McNaboe v. NVF Co.,
2000 U.S. Dist. LEXIS 4418, at *39 (D. Del. 2000) (“The words the
offerors . . . uttered in making the offer are admissible as nonhearsay
as they are utterances to which the law attaches duties and
liabilities.”). Anyone who heard Paul's statement can testify that it was
made, just as any eyewitness to an automobile accident could testify
to the event that the gray SUV ran a red light. In the words of the
Seventh Circuit:
[This kind of utterance echoes] the linguist's distinction between performative and
illocutionary utterances. The latter narrate, describe, or otherwise convey information,
and so are judged by their truth value (information is useful only if true—indeed it is
information only if it is true); the former—illustrated by a promise, offer, or demand—
commit the speaker to a course of action. Performative utterances are not within the
scope of the hearsay rule, because they do not make any truth claims. [United States v.
Montana, 199 F.3d 947, 949 (7th Cir. 1999).]

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Such utterances do not make truth claims because none of the

inferences required for relevance depend on Paul's testimonial
qualities. No memory or perception danger exists because Paul is not
relating some fact that he has observed. Moreover, under the
prevalent objective theory of contract formation, there is no sincerity
or narration-ambiguity danger here, for we do not have to make any
inference that Paul is sincere. The proponent's theory of relevance is
that Paul said the words in an apparent manner such that the offeree
might reasonably be expected to take it seriously; this would be a
valid and binding offer. And whether the words were spoken in an
apparently serious manner is something about which anyone who
heard the words can testify and be fully cross-examined. Paul's
subjective intent or understanding may be relevant to the issue of
mutual mistake, which Paul may raise as a defense. But mistake only
becomes an issue once there has been an offer and an acceptance.
Thus, to prove the offer, Paul's statement is nonhearsay. Its relevance
can be shown on the testimonial triangle as the line from A to the
Issue: From the fact that Paul spoke the words, we infer an essential
element in a contract case.
Many different kinds of statements are legally operative facts
because principles of substantive law give them independent legal
significance. For example, in litigation over whether a group
insurance policy is excluded from ERISA coverage, the policy itself is
admissible as nonhearsay, “excluded from the definition of hearsay . .
. because it is a legally operative document that defines the rights
and liabilities of the parties.” Stuart v. Unum Life Ins. Co., 217 F.3d
1145, 1153 (9th Cir. 2000). Some statements are acts done with
words that, under the substantive law, give rise to civil obligations or
consequences—e.g., acknowledging debts, agreeing to marry a
person in an official ceremony, and uttering words of defamation or
slander. And some words are criminal acts—perjury, extortionate
threats, offers to sell drugs, statements forming a conspiracy. For
example, a statement soliciting a bribe was held to be a legally
operative fact, “important for the mere fact that the words were said
and not for the truth of the matter.” Transportes Aereos Pegaso v. Bell
Helicopter Textron, Inc., 623 F. Supp. 2d 518, 530 (D. Del. 2009).
Sometimes verbal statements have immediate legal significance
when they also accompany nonverbal acts. If information about the
context within which such statements were made is necessary, it can
be supplied by anyone who was there. Cross-examination of the
declarant is not necessary to supply it.
Credibility-related Statements. An out-of-court statement is often
instrumental for discrediting a testifying witness's testimony. For
example, when a declarant's statement is offered to show that it
contradicts his in-court testimony, it becomes relevant and admissible
as nonhearsay. The theory of relevance is not that the prior statement
is necessarily true, but that the equivocation reflected in the
inconsistent statements—whichever one, if any, is true—suggests
that the witness is not credible.
Identifying Nonhearsay Uses. A proponent's boilerplate response
to a hearsay objection in court is, “Not offered for its truth, Your
Honor.” That response will not satisfy a thoughtful judge or a well-
trained opponent. The proponent should be able to articulate the
nonhearsay theory of relevance; for example, that the statement is
offered to prove an effect on the listener (regardless of its truth) and
that this effect on the listener is a fact of consequence in the case.
The proponent should also be able to

459

explain why exclusion of the statement is not appropriate; that is,

why hearsay policy is not implicated. The critical point is that the
evidence is relevant without reliance on the declarant's testimonial
qualities that purport to establish the statement's truth.
Some texts and study aids provide a laundry list of nonhearsay
uses for out-of-court statements. Such lists typically include the three
nonhearsay uses already identified—statements relevant for their
effect on the listener; statements that are legally operative facts; and
credibility-related statements, discussed in Chapter Seven at pages
415-416, supra. The lists also include statements offered as
circumstantial evidence of the declarant's state of mind. A leading
treatise, Christopher B. Mueller & Laird C. Kirkpatrick, Evidence
§8.20-21 at 829-834 (2d ed. 1999), also includes words that operate
as identifying characteristics of an object (a license plate, a trade
insignia) and words that have a performative aspect that dominates
the assertive aspect (the ability to speak French, or to speak at all).
These written or spoken words generate logical factual inferences
that have nothing to do with their “truth” value; thus they might be
called “logically operative facts.” While these lists may help you to
identify some common nonhearsay uses for out-of-court statements,
the key to understanding nonhearsay is to focus on the inferences
necessary to the relevance of the out-of-court statement. The list is
no substitute for the analysis that underlies it.
b. Statements Relevant for Both Nonhearsay and Hearsay Uses
Sally's testimony about what Mike the mechanic said to the driver of
the gray SUV could also be relevant to prove that the brakes on the
Honda were in fact bad. If offered for this purpose, the evidence is
clearly hearsay. Relevance would depend on the mechanic's
sincerity, narration, perception, and memory. It would be excluded if
no hearsay exception applies.
When a particular piece of evidence is admissible for one purpose
(to prove notice) but inadmissible for another (to prove the brakes
were bad), the question of admissibility is one of discretionary
balancing for the trial judge under FRE 403. The risk of unfair
prejudice is that the jury, even after being given limiting instructions,
will use the evidence for its improper hearsay purpose (here, to prove
bad brakes). Is the probative value of the evidence for the admissible
purpose (here, notice) substantially outweighed by the danger of
unfair prejudice? We have seen in the discussion of FRE 403 in
Chapter Three that need for the evidence can alter the balancing
when there are alternative means to prove notice. If there are not, the
need for evidence of Mike's warning will be very high. And in many
cases, other evidence to prove the truth that the SUV's brakes were
bad will already have been admitted. This diminishes the risk of unfair
prejudice. The Rule 403 decision is made within these contextual
facts of the specific case.

KEY POINT
When an out-of-court statement is offered to prove its effect on the listener, some legally
operative fact, some factor pertaining to the declarant's credibility as a witness, or some
other matter where relevance does not depend on inferences about the accuracy of the
declarant's belief about an event, the statement is not hearsay. It is not offered for the
truth of the matter it asserts.
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PROBLEMS
As you examine the following problems, consider why the out-
of-court statements are relevant and whether they are hearsay
or nonhearsay. We have discussed three ways of articulating
the hearsay test, and you should try to apply each one. Ignore
the possibility that the statement may fall within a hearsay
exception and focus solely on the question of whether the
evidence is hearsay.
8.6. The Federal Election Commission (FEC) has brought an
enforcement action against the Christian Coalition for violating
federal campaign finance laws during congressional elections
in 2000, 2002, and 2004. Federal law prohibits corporations
and labor unions from using their general treasury funds to
make direct contributions to candidates; but they can make
expenditures related to federal elections so long as these
expenditures are for communications that do not expressly
advocate the election or defeat of a clearly identified candidate.
The Christian Coalition is a corporation and in 2002 it paid for
its Executive Director to speak at a conference in Montana. In
this videotaped speech, the Executive Director said that
Montana's Democratic Congressman Pat Williams “is one of
your top targets in the entire nation,” and, “We're going to see
Pat Williams sent bags-packing back to Montana in November
of this year.” The FEC asserts that this violates federal law. The
Christian Coalition objects that the videotape of the speech is
hearsay. What result?
8.7. Lucy Rawlins is suing Lagoon Resort in the State of Hawaii for
injuries she allegedly suffered during a scuba diving trip
organized by the Resort. Resort's defense is that Rawlins
signed a valid form that releases it from liability for the claim
Rawlins has alleged against it. The general manager of Lagoon
Resort testifies that he is responsible for explaining the release
 to guests, obtaining signatures, and filing and storing these
records. He claims that Exhibit A is the Liability Release Form
signed by Rawlins. Rawlins does not contest that she signed
Exhibit A but objects that it is hearsay. What result?
8.8. In a libel suit, Plaintiff alleges that the defendant sent a signed,
typewritten letter to Plaintiff's employer stating that plaintiff was
a liar and thief. Plaintiff offers an authenticated photocopy of
the letter into evidence. Defendant objects that the letter is
hearsay. What result? Defendant then calls a coworker of
Plaintiff who will testify that Plaintiff lied on the job and stole
from the company. Plaintiff objects that this testimony is
hearsay. What result? Coworker also testifies that “For years
Plaintiff has had a reputation in the company for lying and
stealing on the job.” Is this testimony hearsay? Is it
inadmissible character evidence?
8.9. Return to Problem 3.3, United States v. Ray, at page 149. To
prove that Ray was responsible for the sale of his 100,000
shares of Rundown stock, the prosecution offers Ray's e-mail
to his broker directing the broker to make the sale. Hearsay?
To prove that Ray gave this order on March 16, 2015, the
prosecution points to the typed date of “March 16, 2015” in the
e-mail. Hearsay?

461

8.10. In a prosecution of Joe Jamal for bank robbery, FBI Agent

Guerrero testifies that a confidential FBI informant identified
Jamal as a suspect. Defense counsel objects that the
testimony is hearsay, offered to prove the truth of the matter
asserted. The government claims that the testimony is offered
to explain the Agent's investigatory procedures and to show
why he developed a photo identification display for witnesses
that included Jamal's photograph. What ruling?
8.11. In a racketeering prosecution pursuant to the RICO statutes, a
witness for the prosecution appears visibly nervous, speaks
haltingly, and changes his testimony several times, but finally
 does identify one of the defendants as the person who paid
him to deposit cash in phony bank accounts, a violation of
RICO. At the close of the witness's testimony, the prosecutor
asks whether the defendants have threatened him. The
witness responds that two of the defendants called him at his
home a week before the trial and made threats on his life if he
testified. Hearsay?
8.12. Joseph Blackstone, a professor of economics at a leading
business school, is charged with insider trading in violation of
18 U.S.C. §78. Blackstone was a director of NF, a small natural
foods company that was purchased by the Kellogg Company in
February of 2011. Just prior to the purchase, several of
Blackstone's family and friends purchased large amounts of
stock in NF and made a significant profit when Kellogg
purchased the company. Blackstone is charged with tipping all
of these individuals with inside information about the
impending Kellogg purchase. Blackstone denies
communicating any tips about the purchase and states that all
of the individuals could have learned of the purchase through
“leaks” in the industry and in the press. At trial, Blackstone
offers the following testimony of Voss, one of his friends: “In
January of 2011, I heard that a Yahoo message board
contained a rumor about the Kellogg purchase.” Should the
court exclude this testimony as hearsay?
8.13. Sondra Evers is suing Jones's Deli for personal injuries
sustained when she slipped and fell on a pool of spilled
ketchup near the food takeout counter. Sondra claims that the
ketchup had been on the floor long enough for Jones's
employees to have known about it. Sondra calls Bertha Barlow,
who offers to testify as follows: “About half an hour before Ms.
Evers had her accident, I was walking past the takeout counter
when I overheard someone exclaim loudly, 'There's ketchup on
the floor!' ” Should this testimony be excluded as hearsay?
What if Bertha also testifies that she saw a Jones's Deli clerk
near the takeout counter when she heard the statement?
8.14. Return to Problem 3.2, Pedroso v. Driver, at page 148. Max
testifies for defendants that he always rode the same school
bus with Paul Pedroso and Paul's friend Tom, and that Paul
and Tom used to play tag after getting off the bus together.
Max testifies that on the day of the accident, he heard Tom say
“Paul, you're it” as the two boys left the bus. Plaintiffs object to
this testimony as hearsay. What result?
8.15. Brian Andronico is charged with conspiracy to distribute
counterfeit currency. An undercover agent, Pamela Mertz,
testified that she made purchases of

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counterfeit money from a man driving a car with the license plate “ICE
2000.” The prosecution can prove that the license plate “ICE
2000” is registered to Andronico. The defendant objects on
grounds of authentication, best evidence, and hearsay. Should
Mertz's testimony be admitted?
8.16. To prove consciousness as a basis for pain and suffering after
an accident, plaintiff offers a witness to testify as follows:
“Within 30 seconds of the accident I was at the plaintiff's side.
She was lying on the ground, and I shouted to a passerby, 'Get
help; she's unconscious.' At that moment the plaintiff said, 'I'm
not unconscious.' ” Is the evidence hearsay?

5. Explanation of FRE 801(a)(2): Nonverbal Conduct

a. The Relevancy of Nonverbal Conduct to Prove Belief
Thus far, all of our examples of hearsay have involved oral or
written utterances, but in some instances hearsay is completely
nonverbal. Consider, for example, the following testimony offered by
a police officer in a battery prosecution: “When I arrived at the bar
that was the scene of the fight, I asked who threw the first punch.
One of the women who was present pointed at Jim Harris, the
defendant, who was wearing a red shirt.” This testimony is relevant to
prove the woman's belief, as shown by her nonverbal conduct, that
Harris threw the first punch. Consider Diagram 8-7 on page 463.
This theory of relevance depends on inferences about the
testimonial qualities of the police officer, who is a witness, and of the
woman. The inference from the woman's conduct (IF1) to her belief
(IF3) (from A to B on the testimonial triangle) and the inference from
her belief to the occurrence of the event at issue (FOC) (from B to C
on the testimonial triangle) show that all of the hearsay dangers are
present. The woman may have been falsely representing her belief to
get Jim Harris in trouble (a sincerity risk); the arm movement may
have been an involuntary tic that was not based on any belief about
Jim (an ambiguity risk); the woman may not have seen clearly who
threw the first punch (a perception risk); and she may have forgotten
who threw the first punch by the time the officer asked (a memory
risk). Indeed, in terms of the inferential process involved in using this
evidence to prove that Harris threw the first punch, there is no
pertinent difference between the intentional pointing and a verbal
response that identifies Harris (e.g., “It was Jim Harris” or “It was the
man in the red shirt”).
Remember that often conduct is just conduct, offered to prove that
an act was done, without regard to the actor's belief. In a medical
malpractice case, the defendant physician testified that while treating
his patient's snake bite, he placed a telephone call to a toxicology
specialist. Since the content of that call was not disclosed, this
testimony revealed only the doctor's intent to place the call and was
not hearsay. Field v. Anderson, 2006 WL 3043431 (W.D. Ky.).

463
 b. Application of FRE 801(a)
FRE 801(a) defines a “statement” as “a person's oral assertion,
written assertion, or nonverbal conduct, if the person intended it as an
assertion.” (Emphasis added.) Applying this definition to our
hypothetical raises a preliminary question of fact: Did the woman
intend her nonverbal conduct (pointing) to be an assertion of her
belief that Jim threw the first punch? What facts would you contend
are relevant to the question of her intent? If the woman did so intend,
her act of pointing, commonly called assertive conduct, will be found
to be a “statement” and will be excluded as hearsay. If she did not so
intend, her act is commonly called nonassertive conduct, and it may
be admitted because it is not a “statement” and therefore not hearsay.
Assertive Conduct. Sometimes conduct is intentionally used by
the actor as a substitute for words. That is, the actor wants to
communicate a belief and uses conduct to do so. By raising your
hand in class, for example, you communicate “I want to speak.” Or by
shaking your head from side to side when asked a question, you
communicate that your answer is “no.” Both of these actions would
usually be intended by the actor to be assertions of what the actor is
thinking. If they are so intended, then in the words of the Advisory
Committee Note, such conduct “is clearly the equivalent of words,
assertive in nature, and [is] to be regarded as a statement.” The act
of pointing, mentioned in the Note, would typically be found to be
assertive conduct, intended by the actor as the equivalent of words,
and thus would be hearsay.
Nonassertive Conduct. Sometimes conduct is not intended by the
actor as an assertion. In our hypothetical about the fight in the bar,
what if the woman did not point at Jim Harris but instead carefully
maneuvered Jim to the back door of the bar and gave him a push out
the door? If the police officer saw her do this and arrested

464

Jim Harris, would the officer's testimony as to what the woman did
be relevant in the battery prosecution? Would it be hearsay? It can be
inferred from her conduct that the woman believed Jim started the
fight, that her belief was accurate, and that Jim did in fact start the
fight. Thus, her conduct is relevant. But unlike the act of pointing, the
act of carefully pushing Jim out of the back door may not be intended
by the woman to assert her belief in Jim's guilt. She may be trying to
protect Jim, and the last thing she wants is for the police officer to
arrest him. If she does not intend to communicate her belief, then her
conduct is nonassertive and, under the definition of FRE 801(a),
would not be a “statement” and hearsay. Notice that the woman's
conduct communicates her underlying belief or intent to people who
observe it, and that the key question here is whether she intended to
make that communication. If she did, the conduct would be hearsay
(deeds substituting for words). If she had no such communicative
intent, the conduct would not be hearsay (“deeds speak louder than
words”).
However, you can still see that the relevance of the woman's
conduct, even if it is nonassertive, depends on inferences about all of
her testimonial qualities. If any of these inferences is false, the
woman's conduct is not relevant to prove Jim started the fight. For
example, the woman may actually think Jim did not start the fight but
wants the police to think he did (a sincerity risk); or she may want him
to leave the bar for other reasons, such as that he has illegal drugs in
his possession (an ambiguity risk). There are also potential
perception and memory dangers: The woman may have confused
Jim with another man wearing a red shirt who actually threw the first
punch, or she may have forgotten what she actually saw. These are
the same risks we have previously identified with regard to the
woman pointing at Jim; and if the woman shouted “Jim Harris” in
response to the officer's question, the same risks would be present.
The intended and the unintended communication scenarios still differ
from each other: In the intended-communication scenario, factfinders
must rely on the woman as a truth teller, whereas in the unintended-
communication scenario, they do not have to do so. Instead, they can
use their general knowledge of the world to infer what people
normally want to accomplish when they do what the woman did under
similar circumstances. Arguably, this substitution would reduce the
hearsay risks (without eliminating them completely). We analyze this
argument in Section 6 below.
FRE 801(a)'s Intent Test. FRE 801(a) creates a doctrinal test for
determining whether any particular item of nonverbal conduct
evidence is or is not hearsay. Nonverbal conduct intended as an
assertion, is hearsay; nonverbal conduct not intended as an assertion
is not hearsay. This test thus involves a preliminary question of fact:
Was the actor's nonverbal conduct intended as an assertion? This
preliminary question will be decided on the basis of the nature of the
conduct and the circumstances surrounding it as presented by both
parties. There will be some close cases, and there may be situations
in which conduct that is normally nonassertive is in fact intended to
be assertive. For example, if the woman pushing Jim Harris out the
back door made a lot of noise and called attention to her conduct,
these contextual facts could generate the inference that she was
intending to communicate her belief in Jim's guilt to the police officer.

465
 FRE 104 governs the preliminary factfinding that is necessary to the
judge's application of FRE 801(a)'s intent test. Should the question of
“intent” be governed by FRE 104(a) or (b)? As you know from
Chapter Four, preliminary questions of fact are for the judge under
FRE 104(a), unless they establish the relevance of the offered
evidence. In the hypotheticals that we have just discussed, the
woman's intent to use her conduct to assert Jim's guilt is not
necessary to the relevance of that conduct. The relevance of her
conduct does depend on her belief about who started the fight; but
that she intends to assert that belief is not an inference that is
necessary to relevance. Instead, it is a test imposed by hearsay
policy. Thus, under FRE 104(a), the judge must be persuaded by a
preponderance of the evidence on the question of intent. This rule
reflects the general policy of FRE 402, which deems all relevant
evidence presumptively admissible: if the evidence is relevant, the
burden always shifts to the opponent to show the judge that a rule of
exclusion applies. Furthermore, as explained by the Advisory
Committee Note to FRE 801, “the rule is so worded as to place the
burden upon the party claiming that the intention existed; ambiguous
and doubtful cases will be resolved against him and in favor of
admissibility.” To what language in FRE 801 do you think the Advisory
Committee is referring?

6. Elaboration of FRE 801(a): Justification for the Distinction

Between Assertive and Nonassertive Conduct
Since the relevance of both the woman pointing and the woman
pushing Jim out the back door depends on the accuracy of her belief
and requires a complete trip around the testimonial triangle, both
kinds of conduct implicate hearsay policy. Yet only the assertive
conduct of the woman pointing is defined as hearsay; the
nonassertive conduct of pushing Jim is not hearsay under FRE
801(a)'s definition. Why?
a. Absence of Hearsay Danger
 The Advisory Committee's Note to FRE 801(a) suggests that
nonassertive conduct should not be defined as hearsay because of
the probable absence of any sincerity danger. If an actor has a belief
about a disputed fact—that Jim Harris threw the first punch—but is
not intending to assert or to communicate that belief, then the actor
cannot be “lying” about it. It is the view of the Advisory Committee
that a person can be insincere—can tell a lie—only if the person is
intending to communicate a particular fact that would be the subject
of the lie. Without the intent to assert that fact, there is no opportunity
to fabricate it. Is this a common sense generalization? Do you agree
with it? Is the absence of sincerity risk a sufficient reason to admit the
woman's pushing Jim as not hearsay?
Surprisingly and unaccountably, the Advisory Committee Note to
FRE 801(a) asserts that the testimonial qualities other than sincerity
also do not present a high risk: “Admittedly [nonassertive conduct] is
untested with respect to the perception, memory, and narration (or
their equivalents) of the actor, but the Advisory Committee is of the
view that these dangers are minimal in the absence of an intent to
assert . . .”

466

(emphasis added). On what empirical data does the Advisory

Committee base this conclusion? There seems to be nothing inherent
in nonassertive conduct that tends to reduce or eliminate the other
hearsay dangers. Can you think of anything about the woman's
conduct in pushing Jim out the back door that reduces the danger of
ambiguity (she was worried about illegal drugs) or perception (she
confused Jim with another man in a red shirt)? The Note indicates
that the actor's motivation to be accurate and the need to rely on the
actor's own conduct can reduce the degree of perception and
memory dangers. But these factors are not automatically present in
every case. As a result, the woman's conduct in pushing Jim could be
admitted as not hearsay without any reduction in the perception or
memory danger involved.
 Thus, you should ask yourself whether the probable absence of just
one hearsay danger (sincerity) is sufficient justification for removing
nonassertive conduct from the definition of hearsay altogether. When
we study the hearsay exceptions, we will see that the probable
absence of one or more of the hearsay dangers is a principal
justification for many of them.
b. Necessity
In general, excluding relevant evidence because of some hearsay
dangers may be too great a price to pay when it is very burdensome
or perhaps even impossible to obtain other, “better” evidence on the
same point. Thus, “necessity” is a reason for many of the exceptions
to the hearsay rule. The concern about nonassertive conduct is that it
is so pervasive and so often relied on as a matter of course in our
everyday lives that we would be giving up too much relevant
evidence by classifying such conduct as hearsay. For example, if we
look out the window and see people wearing heavy overcoats, we
assume it is cold outside; if a northbound vehicle proceeds through
an intersection with a traffic light, we assume the driver thinks that the
light is green for that vehicle; if we see people on the street begin to
put up their umbrellas, we assume they believe it has begun to rain; if
a shopkeeper repairs a loose board in the threshold to a shop after
someone has tripped on it, we assume the shopkeeper thinks the
loose board was dangerous. In these situations, the individual actors
have beliefs about events or conditions that motivate their conduct;
but they are probably not intending to assert the belief that it is cold,
that the light is green, that it is raining, or that the loose board is
dangerous.2 Consequently, their conduct would not be defined as
hearsay under FRE 801(a).
Another variation of the necessity argument for treating
nonassertive conduct as not hearsay is that attorneys are not
immediately sensitive to the hearsay characteristics of such evidence.
If a rule treating nonassertive conduct as hearsay would be only
sporadically applied, the rule arguably ought not to exist at all.

467
 c. Should Nonassertive Conduct Be Excluded from the Definition of Hearsay?
Whether the foregoing reasons are sufficient to exclude
nonassertive conduct from the hearsay prohibition has long been the
subject of academic debate.
The Difficulty of Applying the Intent Test. One concern relates to
the task of classifying conduct as assertive or nonassertive. The
judicial task of determining under FRE 801(a) whether conduct is
intended as an assertion is not easy, and inevitably entails the risk
that the wrong decision will be made, either because the actor has
cleverly disguised an assertion (e.g., the woman is trying to
communicate that Jim is guilty by pushing him out the door when she
knows he is not), because sufficient evidence of intent is not
available, or because the court misapplies the concept of intent to
assert. Even if judges reach the correct result most of the time, too
much time and effort are spent on arguing and deciding the question
of intent.
The Danger of Ambiguity. A second, and perhaps more
substantial, concern is that significant hearsay dangers are still
attached to such conduct. The lack of intent to assert inevitably
increases the ambiguity danger. Conduct can be the product of many
different beliefs, and the factfinder may attribute a belief to the actor
that the actor does not in fact hold. We have seen that the woman
may have other reasons for pushing Jim out the back door. Similarly,
a driver going through the intersection is unlikely to be intending to
assert that the light is green but it may also be wrong to infer that the
driver believes that the light is green. The driver may know that the
light is red but because of some emergency the driver feels
compelled to ignore the red light. A substantial ambiguity problem
means the conduct has low probative value to prove the specific
belief for which it is offered. At some point the conduct may be so
ambiguous, and the probative value so low, that a court could rely on
FRE 403 to exclude the evidence. Moreover, the driver of the car may
be color-blind, or distracted, and may not have perceived the color of
the stop light. As noted previously, there is nothing about all
nonassertive conduct that tends to minimize perception or memory
problems.
Is the Admission of Nonassertive Conduct Good Policy?
Remember that the principal impact of the rule excluding hearsay is
to require the presentation of witnesses, subject to oath, demeanor,
and cross-examination. If the woman's pointing is assertive conduct,
the proponent must produce that woman as a witness (unless her
conduct falls within a hearsay exception or exemption). If her conduct
is nonassertive, she need not be called as a witness. However, cross-
examination of the woman might uncover some risk of her insincerity.
And, it might provide specific information about her belief that would
obviously reduce the ambiguity risk. Furthermore, it is generally
thought that cross-examination is most effective in exposing
perception and memory problems, neither of which is minimized by
the fact that out-of-court conduct is nonassertive. These factors might
call for defining nonassertive conduct as hearsay, which would
require the proponent to bring the actor to court to testify and to be
cross-examined. There is a middle ground between defining all
nonassertive conduct as hearsay, thus excluding it wholesale, and
FRE 801(a)'s position of allowing it to be

468

admitted wholesale. It would be possible to define hearsay as

including all conduct relevant to prove belief; then to create a hearsay
exception for nonassertive conduct; and to condition the applicability
of that exception on the unavailability of the actor. Alternatively, the
exception for nonassertive conduct could depend on a case-by-case
showing of the kind of motivation or reliance by the actor that
minimizes perception and memory dangers. Do you think such
alternatives would be preferable to the Federal Rules' approach?
Consider a rule that allows jurors to draw adverse inferences against
a party who fails to call an available and potentially important witness.
United States v. Pierce, 785 F.3d 832, 843-844 (2d Cir. 2015)
(confirming appropriateness of “adverse inference against a party that
fails to call a witness whose production . . . is peculiarly within [that
party's] power.” (citing United States v. Gaskin, 364 F.3d 438, 463 (2d
Cir. 2004)). Does this rule change anything in your analysis?
d. Disguised Assertions
Sometimes evidence that appears to be nonassertive conduct is in
fact relevant only because of underlying assertive behavior of
particular persons. The easiest example is when a judgment of
conviction for a crime is used to prove that the defendant did do the
illegal act. The conviction is relevant because it is evidence that 12
jurors voted, or one judge decided, that the defendant did do the act.
Such conduct clearly is intended to assert the belief in guilt. Because
the jury's vote may not appear on the face of the judgment of
conviction itself, it is what we call a disguised assertion. Convictions
are uniformly classified as hearsay (and are generally admissible
pursuant to FRE 803(22)). Once again, locating the hidden declarant
(the jury) who is making a disguised assertion (the verdict of guilt)
depends on your identification of the inference of belief that is
necessary for the relevance of the offered item of evidence.
Now consider evidence that Greta was arrested (not convicted) for
robbery. Is the arrest hearsay, if used to prove that Greta actually
committed the illegal act? The answer depends on whether the arrest
is assertive or nonassertive conduct of the hidden declarants, the
officers who arrested Greta. There are several ways to analyze this
problem. The officers may have been making the arrest because they
observed Greta in the act and thus they believed that she did commit
the robbery. If so, we think it is appropriate to regard their conduct in
arresting her as their intended assertion of that belief. Alternatively,
the officers may have been executing a warrant or acting in response
to a victim's accusation. They have no firsthand knowledge of Greta's
behavior and may not be intending to assert their own belief about
her criminal activity. But the officers are making the arrest only
because another hidden declarant—the individual who made an
accusation or the officer who signed the affidavit for the warrant—did
make an intended assertion of belief that Greta robbed the bank. The
apparently nonassertive arrest is occurring only because of, and is
relevant only because of, this disguised assertion of belief in Greta's
guilt, the fact that the evidence is being offered to prove. The
evidence, therefore, should be regarded as hearsay.
Consider also testimony that John's driver's license was revoked,
which is offered to prove that John engaged in unsafe driving. It may
well be that the hidden declarant, the person who generated the
paperwork that officially revoked John's license, was

469

acting in a bureaucratic manner and was not intending to assert

anything about how John drove. Nonetheless, the revocation is
occurring only because somebody—presumably the judge who found
John guilty of a traffic offense—asserted that John had engaged in
some illegal driving activity.
Our characterization of the arrest and revocation evidence as
assertive is either a minority position or a refinement that most
discussions of nonassertive activity do not bother to make.
McCormick classifies the revocation evidence as nonassertive. See
Charles T. McCormick, The Borderland of Hearsay, 39 Yale L.J. 489,
491 (1930). See also Ted Finman, Implied Assertions as Hearsay:
Some Criticisms of the Uniform Rules of Evidence, 14 Stan. L. Rev.
682, 683 n.4 (1962) (citing conduct that leads to the
institutionalization of a patient as nonassertive). Morgan, on the other
hand, characterizes the institutionalization evidence and the
revocation evidence as assertive. Edmund M. Morgan, Hearsay
Dangers and the Application of the Hearsay Concept, 62 Harv. L.
Rev. 177, 190 (1948). What do you think?

KEY POINTS
1. Evidence of nonverbal conduct is sometimes offered to prove
the accuracy of the beliefs of the actor about events. If the
actor is intending to communicate that belief through conduct,
then the evidence is defined as hearsay. The actor's
 testimonial qualities of sincerity, perception, and memory are
involved in the relevancy of the conduct.
2. If the actor is not intending to communicate belief, then the
evidence is defined as not hearsay and is admitted to prove
the truth of that belief, even though the actor's testimonial
qualities of perception and memory are still involved.
3. The question of the actor's intent is a preliminary question of
fact for the judge to decide pursuant to FRE 104(a). The
burden to persuade the judge on the question of intent is on
the opponent who is objecting to the admission of the actor's
conduct as hearsay.

PROBLEMS
8.17. Ed Stephens is being prosecuted for bank robbery.
Eyewitnesses claim that the robber wore a loud Hawaiian shirt.
The prosecution offers the following testimony of Officer Emily
James:
The day after the robbery, I was following leads on various possible suspects. I
went to the Stephens's home, and found only Mrs. Stephens there. I asked her if
she would give me the shirt that her husband wore the previous day. She handed
me a Hawaiian shirt, which is marked as Exhibit A. I also watched her as she
entered the bedroom and I saw her conceal a leather bag under the bed. After she
gave me the shirt, I conducted a search for the leather bag and found that it was
full of money, which is marked as Exhibit B.

470

Defense counsel has objected to this entire testimony, and to

Exhibits A and B on grounds of hearsay. What result?
8.18. Ralph Benson and Jerry Jackson owned a small yacht that
they kept docked on Leech Lake, Minnesota. On the morning
of June 15, Ralph, his wife, and two children set off across the
lake in the yacht. A storm suddenly arose on the lake, and
nobody has seen the Benson family or the yacht since that
morning. Jackson sued the company that insured the yacht
 against damage or loss due to bad weather. The insurance
company relies on a clause in the policy that permits recovery
only if the yacht was navigable at the time of the loss. To prove
that the yacht was navigable, Jerry Jackson offers to testify,
“On the morning of June 15, I observed Ralph Benson carefully
look around the yacht, place his wife and children on board,
and set off across the lake.” Counsel for the insurance
company objects to this testimony on the ground that it is
hearsay.
8.19. Return to Problem 8.13 at page 461, supra, Sondra Evers's
case against Jones's Deli.
(a) Plaintiff Evers offers a videotape prepared at the request
of her attorney showing her activities at her home, as
relevant to prove the serious effect of the fall on her
physical condition.
(b) For the defendant, Karen Larson would testify: I am the
manager of Jones's Deli and I was at the store from 8:00
. . until 5:30 . . on the day Ms. Evers fell. On that day I
received no complaints about any spilled ketchup on the
floor. Is this testimony relevant? What additional facts
might the proponent need to present? Should the
testimony be excluded on grounds of hearsay?
8.20. Ben Jacobsen, a 50-year-old former railroad firefighter, is
charged with homicide for fatally shooting a man who had been
sleeping in a box car in an infrequently used area of the
switching yard. The crime occurred at approximately 11:00 . .
on Tuesday, July 23. Jacobsen claims that he is not guilty and
suggests that two teenage boys committed the crime. He calls
to the stand Harry Winters, a railroad employee, who offers to
testify as follows: “Shortly after 11:00 . . on Tuesday, July 23,
I observed two teenage boys near the box car. They were
running away from it.” Is this evidence hearsay?
8.21. Plaintiff is suing a police officer for false arrest. The officer
arrested Plaintiff for driving while under the influence of
intoxicating liquor. At trial, Plaintiff submits properly
 authenticated proof that she had been acquitted by a jury of
the charge in question. Hearsay?
8.22. Return to Problem 8.10 at page 461, supra. What if Agent
Guerrero had not testified as to the specific contents of the
confidential informant's statement but did testify that “in the
course of my investigation leading to defendant Jamal's arrest,
I had contact with a confidential informant.” Hearsay?
8.23. To prove that Darcey had been using drugs, testimony of one
of Darcey's friends is offered: “Last December 31, I visited
Darcey at the State Drug Rehabilitation Center, where he is a
patient.” Hearsay?
8.24. In the prosecution of Donna Draper for conspiracy to import
heroin, an illegal substance, the prosecution offered the
testimony of Sergeant Edward Conley concerning a nine-year-
old German shepherd named Bosco. Sergeant Conley

471

testified that Bosco was trained to detect narcotics by smell. Sergeant

Conley further testified that he took Bosco to a room in a bank
in which a bag containing $9,000 was located, and, when he
instructed Bosco to search for drugs, the dog “showed a
strong, positive aggressive alert, shaking the bag, ripping it
apart, grabbing the money in his mouth, and ripping the
money.” Other evidence establishes that the currency to which
Bosco reacted had been brought to the bank by Draper in
order to purchase cashier's checks. Should this evidence be
excluded on the ground that it is hearsay? On any other
ground?
8.25. Return to Problem 4.19 at page 253. Is Ensign Chandler's
testimony about the display on the GPS screen hearsay?
8.26. In the prosecution of Clive Bailey for conspiracy to possess
marijuana with the intent to distribute, the prosecution offered
the testimony of the arresting officer. The officer testified that a
Ms. Washington had been caught collecting a shipment of a
barrel of marijuana. Washington agreed to cooperate with the
 government by having agents accompany her to deliver the
barrel to the intended recipient. She then drove her van to her
residence, with two task force agents hiding in the back, and
placed a phone call, punching in a code. Fifteen minutes later,
Clive came up to the van, opened the back of the van, and fled
upon seeing the agents, but was apprehended. The agents
recovered his pager, which reflected receipt of the call from
Ms. Washington's telephone and the code she had entered. Is
any of this testimony hearsay?

7. Utterances Relevant for the Truth of the Declarant's Unstated

Beliefs
Verbal conduct, that is, oral or written words of a declarant, often
expresses the belief of a declarant explicitly. But sometimes, the
beliefs of the declarant that generate verbal conduct are not stated
explicitly but can be inferred from the words that are spoken or
written. Is verbal conduct hearsay when offered to prove the truth of
the unstated (inferred) beliefs? To answer this question we must first
address the relevancy of such utterances.
a. The Relevancy of Unstated Beliefs
Here are some examples of utterances that can be relevant only if
they are offered to prove beliefs that the declarant holds but does not
state explicitly (see also supra, page 463-467). In our hypothetical
case brought by the pedestrian against the driver of the gray SUV,
suppose that Sally says to George “That SUV driver must be drunk”
just after the pedestrian is struck. And suppose that the pedestrian is
not trying to prove that the driver was drunk. The relevance of Sally's
statement would depend on the inference that Sally has an unstated
belief that the driver of the gray SUV was driving in a careless or
wrongful manner when his car hit the pedestrian. The pedestrian
would offer Sally's statement to prove that this unstated belief is true.
The fact of consequence is that the driver was driving carelessly or
wrongfully. Under this theory,

472
 the relevance of the statement depends on all of Sally's testimonial
qualities, thus requiring a complete trip around the testimonial
triangle, as Diagram 8-8 illustrates:

Further inferences to reach the issue in the pedestrian's case will

involve deciding what kind of wrongful driving Sally perceived. Other
facts about the incident will show that Sally was probably referring to
the driver's failure to stop at the red light.
In the hypothetical about Jim Harris's prosecution for battery,
suppose that the woman said to Jim “get out of here quick” just after
the police officer asked who had thrown the first punch. Or, a man
said, “Jim Harris ought to confess.” These statements might be
relevant to the prosecution's case, but not to prove that Jim ought to
get out or confess. The relevance of the statements would depend on
an inference that the woman and the man held the belief that Jim had
thrown the first punch. Again, this belief is unstated, but the
prosecution would be offering the two statements to prove that this
unstated belief is true. And again, this theory of relevance requires
reliance on all of the testimonial qualities of the woman and man.
 It may occur to you to ask why the pedestrian would want to use
Sally's out-of-court statement when questioning Sally at trial would
reveal with more certainty what she believed about the accident. The
same is true for the woman and man in the bar. Why not call them as
witnesses and ask them whether they saw Jim throw the first punch?
The answer is that sometimes declarants cannot be called as
witnesses—they are unavailable, unwilling, or forgetful. Their out-of-
court statements are the best source of their knowledge and beliefs,
even if those beliefs are unstated.
One final example will help to make this point. In State v. Dullard,
668 N.W.2d 585 (Iowa 2003), Brent Dullard was convicted of
possession of the precursor materials with intent to manufacture
methamphetamine, a controlled substance. On a tip, police had
conducted a legal search of the house and garage that Dullard
shared with his mother. In the garage, police found materials that are
potential precursors of methamphetamine (ephedrine and ether) plus
items commonly used in the manufacture of methamphetamine.
Under Iowa law, Dullard and his mother had joint possession

473

of the garage where all of the substances were found. Thus, the
prosecution had to prove Dullard's “actual knowledge or
circumstances from which a jury could infer knowledge” in order to
establish his possession of the precursors. This led the prosecution to
offer into evidence a small spiral notebook found in a wooden desk in
the garage that contained a handwritten note from an unknown
person. The note read:
B-
I had to go inside and pee + calm my nerves somewhat down. When I came out to go
get Brian I looked over to the street North of here + there sat a black + white w/ the dude
out of his car facing our own direction—no one else was with him.

The prosecution contended that the note was intended for Dullard
(“B”) and that it was relevant to show the writer's belief that Dullard
needed to be told about the policeman because he was involved in,
and had actual knowledge of, the drug activity in the garage. This
relevant belief was unstated; and, the unknown writer was not
available as a witness.
You can see that, just as with the hypothetical statements of Sally
and about Jim Harris discussed above, inferences about all of the
unknown writer's testimonial qualities are necessary to the relevancy
of the note. Perhaps the author knew that Brent Dullard was ignorant
of the contents of his garage and wanted to misrepresent his
involvement (a sincerity risk); perhaps the author mistakenly wrote
“B” and intended the note for “E” (a narration risk); perhaps the author
had misperceived or forgotten about Brent's actual conduct and was
mistaken about Brent's involvement (perception and memory risks).
Even if all of these risks, or some of them, seem small to you, their
existence implicates hearsay policy. If you were the attorney for
Dullard, you would certainly want the opportunity to cross-examine
the author of the note.
b. Application of FRE 801(a) and (c)
Courts and commentators have struggled for two centuries with the
problem of how the rule against hearsay should classify the kinds of
utterances that we have been discussing. The Iowa Supreme Court
posed the question of whether this implied, unstated belief—which it
also called an “implied assertion” using the terminology of the
common law—is a hearsay statement under the definition contained
in the Iowa rule of evidence identical to FRE 801(a) and (c).
The Literal Approach. FRE 801(a) defines a “statement” as “a
person's oral assertion, [or] written assertion.” FRE 801(c) defines
hearsay as a “statement [of a declarant] that a party offers in
evidence to prove the truth of the matter asserted in the statement.”
Taking these terms literally, the declarant's written assertions in the
note in Dullard were not offered to prove the truth of the matters or
propositions that they assert. Instead, the Court wrote, “the
handwritten note is offered solely to show the declarant's belief,
implied from the words and the message conveyed” that Dullard, the
alleged recipient, had knowledge and thus possession of the drug lab
materials. 668 N.W.2d at 591.
 Under a literal approach to FRE 801(a) and (c), since that relevant
belief was not stated as an assertion in the note, the note could not
be a statement that was offered

474

to prove the truth of the matter it asserted. The same result would
be reached if these definitions were applied to Sally's statement that
the “driver must be drunk” and to the statements that Jim Harris
should “get out quick” or “ought to confess” in the hypotheticals we
have just discussed. These utterances would not be hearsay because
they are not offered to prove the truth of the matters they explicitly
and literally assert.
The Common Law Approach. At common law, courts used the
phrase implied assertions to identify those utterances that were
relevant not for the stated beliefs but for the implied unstated beliefs
of the declarant. The Iowa Supreme Court in Dullard treated the note
as containing an “implied assertion” of the author's belief that Dullard
had knowledge and possession of the drug lab materials. The court
described the common law approach:
The starting point for the common law approach to implied assertions inevitably begins
with the celebrated and durable case of Wright v. Tatham, 112 Eng. Rep. 488 (Ex. Ch.
1837). The case involved an action to set aside a will based on the incompetency of the
testator . . . . At trial, the proponents of the will offered several letters written to the
testator by various individuals concerning a variety of business and social subjects . . . .
The purpose of the letters was to show the absent declarants must have believed the
testator was able to engage in intelligent discourse on the various topics discussed in
the letters . . . . This belief, therefore, constituted evidence of the testator's competency.
[668 N.W. 2d at 591.]
The opinion in Wright became the general rule at common law. The
court analogized the written letters to nonverbal conduct, the
relevance of which depends on the belief of the actor. It held that
“assertions that are relevant only as implying a statement or opinion
of the absent declarant on the matter at issue constitute hearsay in
the same way the actual statement or opinion of the absent declarant
would be inadmissible hearsay.”
 If the goal of a definition of hearsay is to identify those out-of-court
utterances that require evaluation of all of the declarant's testimonial
qualities—where the trip around the complete testimonial triangle is
required—then the holding in Wright makes sense. All of the
examples of utterances relevant to prove unstated beliefs that we
have discussed so far (which the common law would call implied
assertions) require inferences about all of the declarants' testimonial
qualities. Under hearsay policy, this justifies requiring oath,
demeanor, and cross-examination. Professor Roger Park labeled this
common law risk analysis a “declarant-oriented” test for hearsay; a
test that “focuses on whether the use of the utterance will require
reliance on the credibility of the out-of-court declarant.” Roger C.
Park, McCormick on Evidence and the Concept of Hearsay: A Critical
Analysis Followed by Suggestions to Law Teachers, 65 Minn. L. Rev.
423, 424 (1981).
FRE 801(a)-(c) Rejects the Common Law Approach. The
Advisory Committee Note to FRE 801(a) states that certain
utterances are removed from the definition of hearsay, even though
their relevance depends on the testimonial qualities of the declarant.
This rejection of the “declarant-oriented” common law approach is
briefly stated and sparingly justified as follows:

475
[S]ituations giving rise to [nonassertive] . . . conduct are such as virtually to eliminate
questions of sincerity. Similar considerations govern nonassertive verbal conduct and
verbal conduct which is assertive but offered as a basis for inferring something other
than the matter asserted, also excluded from the definition of hearsay by the language
of subdivision (c).
The Note relies on an analogy between nonassertive conduct,
defined as not hearsay by FRE 801(a), and two kinds of verbal
utterances. The first sentence states that evidence of an actor's
nonassertive conduct involves no sincerity danger. Why? Because
the actor has no intent to use his conduct to communicate his belief.
Think back to the earlier examples of nonassertive conduct admitted
as not hearsay under FRE 801(a). Without the intent to communicate,
there is no opportunity for the actor to lie, that is, to decide to
communicate false information through conduct. In the next sentence,
the Note implies that the risk of insincerity is also nonexistent for all
“nonassertive verbal conduct and verbal conduct which is assertive
but offered as a basis for inferring something other than the matter
asserted” and that therefore such utterances should also be defined
as not hearsay.
“Nonassertive verbal conduct” may refer to hortatory declarations,
instructions, and commands. The exclamation “Jim, get out quick”
would be an example of this type of utterance. Assertive verbal
conduct “offered as the basis for inferring something other than the
matter asserted” may refer to assertions like the note in Dullard—
utterances relevant for unstated beliefs that still bear hearsay
dangers. The Note does not explain or give examples of either kind of
statement, however, so its meaning is somewhat ambiguous.
Furthermore, “nonassertive verbal conduct” is an oxymoron, for
virtually all conscious utterances are efforts to assert something.
Nonetheless, when utterances are offered as relevant to prove the
declarant's unstated beliefs, the Advisory Committee appears to
reject the common law approach to the definition of hearsay.

8. Elaboration of FRE 801: Courts Reject the Literal Approach

and Apply an “Intent” Test
Many federal courts faced with a choice between the literal approach
of FRE 801(c) and the common law approach to statements relevant
for unstated beliefs have rejected both. Instead, they have sought to
identify those statements that bear the highest risk of insincerity and
to exclude only those statements as hearsay. This approach rests on
the understanding that words may be spoken or written with the intent
to communicate something different from, or in addition to, what the
words themselves formally articulate. People use language in many
different ways to communicate. If the man stating “Jim Harris ought to
confess” is intending to communicate his unstated belief that Jim
threw the first punch by using this form of speech, it follows that he
could choose to “lie” by communicating false information about Jim.
When a speaker intends to communicate an unstated belief, there is
enhanced danger of insincerity.

476
a. The Judicially Created Intent Test
The test used by courts to identify those statements with the
greatest sincerity danger has been articulated in different ways.
Some courts have read “matter asserted” broadly enough to include
matters that are intentionally implied, as well as explicitly stated—
hence the label “implied assertions” for this type of hearsay. In Park v.
Huff, 493 F.2d 923, 927 (5th Cir.), rev'd on other grounds, 506 F.2d
849 (5th Cir. 1974) (en banc), the court said that a declarant's
statements implying that the defendant was financing a murder
conspiracy are hearsay when there is a “possibility that the declarant
intended to leave a particular impression.” The court in United States
v. Zenni, 492 F. Supp. 464, 468-469 and n.21 (E.D. Ky. 1980)
acknowledged that FRE 801(a) “does not seem to require a
preliminary determination by the trial court whether verbal conduct is
intended as an assertion” but the court held that such a determination
of intent would be required to include some “implied assertions” within
the definition. Zenni involved callers placing bets with the defendant,
which led to criminal charges alleging that the defendant carried out
unlawful bookmaking. The callers only wanted to place their bets:
Neither of them intended to communicate that Zenni was a
bookmaker. For that reason, the court categorized those calls as
nonhearsay. Compare this decision with the English case, R. v.
Kearley, 2 App. Cas. 228 (H.L. 1992), decided under the old authority
of Wright v. Tatham. Kearley held that statements made by individuals
who called the defendant's residence to ask for drugs were hearsay.
Which of the two decisions best fits FRE 801(a)-(c): Zenni or
Kearley? Which of them stands on firmer policy grounds than the
other?
The intent test has been largely a judicial creation. Prior to the
restyling of the Federal Rules, FRE 801(a)(1), defined verbal
assertions as “statements” and did not contain an intent test, in
contrast to the definition of nonverbal conduct as “statements” in FRE
801(a)(2), which did.3 In creating this test, courts relied on the
somewhat backhanded language of the Advisory Committee Note to
FRE 801(a) that does emphasize that an intent to assert is critical to
identifying hearsay: “The key to the definition is that nothing is an
assertion unless intended to be one.” Conversely, it would seem that
if there is intent to assert, there is hearsay. Many evidence
commentators agree:
A number of scholars have advocated using the declarant's intent, or some objective
manifestation of it, in determining what the declarant's statement asserts. Some version
of an intent test seems necessary to keep the assertion definition [the literal truth-of-the-
matter-asserted test] from being wholly arbitrary. [Roger C. Park, “I Didn't Tell Them
Anything About You”: Implied Assertions as Hearsay Under the Federal Rules of
Evidence, 74 Minn. L. Rev. 783, 800 (1990).]

477
b. The Difficulties of Applying an Intent Test
An intent test might be stated as follows: When an out-of-court
utterance is relevant to prove the truth of a belief that is different from
or more than the truth of the declarant's literal utterance, the evidence
is hearsay if the declarant is intending to communicate the truth of the
unstated belief that is critical to the relevance of the evidence.
One problem with such a test is that it is not clear what the meaning
of “intent” is. When people speak, they have many beliefs in mind all
at the same time. How central to the declarant's consciousness or
thinking does a matter have to be for it to qualify as an “intended”
communication? Consider Jill's statement to a friend of hers to whom
she has been complaining about one of her coworkers, Mary. Jill
says: “Well, at least I never stole from the company!” It seems clear
from the context of the conversation that Jill has the specific intent to
communicate to her friend the specific unstated proposition that Mary
did steal from her employer. Jill has chosen a somewhat unusual way
of expressing that proposition, but this does not diminish any of the
hearsay dangers, including the danger of insincerity. Since she is
intending to make an implicit communication, Jill has the opportunity
to imply deliberately and falsely that Mary steals. The same analysis
would seem to apply to the man's statement “Jim Harris ought to
confess” in our hypothetical about who started the fight in the bar.
But while Jill's intent, and the man's intent, may be reasonably clear,
in many cases it may be quite difficult to determine whether specific
intent exists to communicate an unstated proposition. Consider the
following:
During the search of [codefendant] Mayfield's apartment, the telephone rang, and a
police officer answered it. An unidentified female voice asked to speak with “Keith.” The
officer replied that Keith was busy. The caller then asked if Keith “still had any stuff.” The
officer asked the caller what she meant, and the caller responded “a fifty.” The officer
said “yeah.” [United States v. Long, 905 F.2d 1572, 1579 (D.C. Cir. 1990).]
The defendant, Keith Long, was charged with possession of cocaine
with intent to distribute. The caller's questions were clearly based on
her belief that Keith was a drug-seller and had sold her drugs in the
past. But what was the declarant intending to communicate? It may
be that the declarant was simply intending to express her desire for
drugs and not trying to assert the proposition “Keith is a drug-seller.”
Nonetheless, the declarant, at some level of consciousness, is basing
her conduct on her knowledge that Keith has sold to her in the past
and that her questions will communicate this fact. The declarant's out-
of-court utterance was admitted at trial and Long was convicted. On
appeal, Long argued that “the questions plainly revealed assumptions
that are the functional equivalent of direct assertions . . . . [T]he caller,
through her questions, in effect asserted that 'Keith ha[d] crack and
s[old] it out of Mayfield's apartment.' ” Id. The appellate court
disagreed that “intent” was involved:
With our inquiry focused on the intent of the caller, we have little trouble disposing of
Long's theory about implied assertions. Long has not provided any evidence to suggest
that the caller, through her questions, intended to assert that he was involved in drug
dealing. The caller may indeed have conveyed messages about Long through her
questions, but any such messages were merely incidental and not intentional. [Id. at
1580.]

478

Do you agree with the court's conclusion? Is the caller's statement

more like Jill's “at least I never stole from the company” or like the
statement of the note writer in Dullard?
 To make an accurate decision about a speaker's intent, the jury will
require sufficient factual information. Out-of-court utterances are
typically described to the jury by someone who overheard them.
Testimony from this witness about the immediate context in which the
utterance was made may be the only information available to the jury.
If the utterance was written, the document, and the witness
authenticating it, may provide even less information pertinent to
intent. 3 Stephen A. Saltzburg, Michael M. Martin & Daniel J. Capra,
Federal Rules of Evidence Manual 1473 (7th ed. 1998), suggests that
factual difficulties in applying an “actual intent” test can be adequately
handled by an objective, rather than subjective, test of intent: “The
question should be whether a reasonable person making a statement
such as the declarant made would have intended to communicate the
implied assertion that the proponent is offering for its truth.”
Finally, which party should bear the burden of persuading the judge
as to whether the declarant has or does not have the requisite intent?
The traditional legal device for dealing with uncertainty about factual
issues is allocating the burden of proof. By assigning the burden of
proving intent, or lack thereof, the risk of erroneous decisions can be
assigned to one party instead of the other to further evidentiary policy.
Most proposed intent tests do place the burden to prove intent on the
opponent of the evidence in accordance with the inclusionary
presumption of FRE 402: “As with conduct, the burden should be
placed on the non-offering party to show that the declarant had the
intent to communicate the implied assertion.” 3 Stephen A. Saltzburg,
Michael M. Martin, & Daniel J. Capra, Federal Rules of Evidence
Manual at 1473.
c. Some Courts Still Adhere to the Common Law Approach
The Iowa Supreme Court in Dullard rejected both the literal
approach and an intent test, and adopted the common law's
“declarant-oriented” approach to the definition of hearsay. The court
held that the note written by the unknown declarant was hearsay,
even if its author did not intend to assert that Brent Dullard had
knowledge of and possession of the substances in his garage.
 The distinction drawn between intended and unintended conduct or speech only
implicates the danger of sincerity . . . other 'hearsay dangers remain viable, giving rise to
the need for cross-examination. Moreover, even the danger of insincerity may . . . be
present . . . where the reliability of the direct assertion . . . is insincere . . . . Implied
assertions can be no more reliable than the predicate expressed assertion. [668 N.W.2d
at 594-595.]
Two years after Dullard, the Maryland Court of Appeals made a
thorough analysis of the common law approach and the federal intent
test, as well as much of the scholarly literature. It broadened the
meaning of “matter asserted” and held that
where the probative value of words, as offered, depends on the declarant having
communicated a factual proposition, the words constitute an “assertion” of that
proposition. The declarant's intent . . . is irrelevant. If the words are . . . offered in court
to prove

479
the truth of the [communicated] proposition—i.e. of the “matter asserted”—they are
hearsay under our rules. [Stoddard v. State, 887 A.2d 564, 577 (Md. 2005) (emphasis
added).]
Some federal circuit courts also seem to have applied the common
law approach by excluding statements that are relevant only for the
declarant's unstated belief without making any finding that the
declarant intended to assert that belief. See Weinstein and Berger,
Weinstein's Federal Evidence §801.10[2][c], at 801-10 to 801-12
nn.13, 15 (McLaughlin ed., 2d ed. 2003); Callen, Hearsay and
Informal Reasoning, 47 Vand. L. Rev. 43, 47-48 n.18 (1994).
Nevertheless, it is fair to say that the prevailing judicial practice is to
admit as not hearsay statements relevant for unstated beliefs when
the declarant did not intend to assert those beliefs, and to apply an
intent test to exclude those statements that appear to bear significant
sincerity danger due to opportunity to fabricate.

KEY POINTS
1. The Advisory Committee Note to FRE 801 construes FRE
801(a) and (c) as excluding oral and written utterances that
are offered to prove a declarant's unstated beliefs from the
 definition of hearsay. Such utterances are not offered to prove
the truth of the literal matters they assert.
2. The relevancy of these utterances still depends on the
declarants' testimonial qualities. However, when the declarant
is not intending to communicate the unstated belief, the
sincerity danger may be minimal, and the utterance is
analogous to nonassertive conduct.
3. In the majority of jurisdictions, if a court finds that the declarant
specifically intends to communicate an unstated belief, it will
usually exclude the utterance as hearsay.
4. Intent to communicate may be difficult to prove either because
of factual uncertainty or because of ambiguity in the meaning
of intent.

NOTES AND QUESTIONS

1. Ever since Wright v. Tatham, there has been a continued

practical and academic debate about whether these utterances—also
called “implied assertions”—should be classified as hearsay or as not
hearsay, and about the most effective doctrinal test for accomplishing
this. An informative contribution to this debate is the Symposium on
Hearsay and Implied Assertions: How Would (or Should) the
Supreme Court Decide the Kearley Case?, 16 Miss. C. L. Rev. 1
(1995). Other articles include Michael S. Pardo, Testimony, 82 Tul. L.
Rev. 119 (2007); Michael H. Graham, Handbook of Federal Evidence
Section 801.7, at 73-77 (5th ed. 2001); Craig R. Callen, Hearsay and
Informal Reasoning, 47 Vand. L. Rev. 43 (1994); Paul S. Milich, Re-
examining Hearsay Under the Federal Rules: Some Method for the
Madness, 39 Kan. L.

480

Rev. 893 (1991); Roger C. Park, I Didn't Tell Them Anything About
You: Implied Assertions as Hearsay Under the Federal Rules of
Evidence, 74 Minn. L. Rev. 783 (1990). As noted earlier, in 1992, the
English House of Lords reaffirmed the common law approach to
implied assertions set forth in Wright v. Tatham. Regina v. Kearley, 2
App. Cas. 228 (1992). However, some ten years later, section 115 of
the Criminal Justice Act of 2003 rejected this approach. The key text
is that the definition of hearsay includes only those statements where
“the purpose of, or one of the purposes, of the person making the
statement appears to the court to have been (a) to cause another
person to believe the matter, or (b) to cause another person to act . . .
on the basis that the matter is as stated.” Would the note in Dullard
be hearsay under this test?

PROBLEMS
8.27. Return to Problem 8.13 at page 461, supra. To prove that
there was ketchup on the floor where she fell, Sondra Evers
presents Joel as a witness who will testify that shortly before
Sondra's fall he heard another customer say, “Watch out for
that ketchup!” Joel was standing in an aisle and did not see
what the customer was looking at. Is it hearsay?
8.28. Return to Problem 3.4, State v. Blair, at page 150 supra. In
Norma's private diary, on a page dated the day before the
attack on her, Norma has written:
Jimmy has really hurt me this time. He is getting more violent when I tell him I want
to leave. I don't want anyone to read this and I am going to burn this diary when I
leave for L.A.
Hearsay?
8.29. Victim was alone with Fred and Stanley when he was shot. To
prove Fred shot the victim, the prosecution offers the following:
(a) The victim's statement immediately thereafter: “Help me,
Stanley, I've got a bullet in me.”
(b) The victim's statement at the hospital: “Whatever you do,
don't let Fred in here. He wants to hurt me.”
8.30. Fred and John have just been arrested by the police for a
robbery. Fred says to John: “Don't worry, I didn't tell them
anything about you.” Hearsay if offered to prove John
participated in the robbery?
8.31. Roger was arrested in the parking lot of a shopping center
after selling two golf ball-sized packages of heroin to an
undercover police agent. Roger told police that Frank was
acting as his look-out during the transaction and was circling
the parking lot in a blue van. The police questioned Frank, who
insisted he knew nothing about a drug deal and denied that he
had been circling the parking lot. Frank is now on trial for
conspiracy to distribute heroin. Evidence is presented that
while the police were talking to Frank, his cell phone rang
repeatedly. An officer answered the cell phone ten times and
each time the caller “was someone

481

requesting heroin.” There is no evidence as to what the anonymous

callers actually said to the officer. The court held that the calls
were not hearsay:
Even if the calls included assertions, the government offers them, not for their
truth, but for the fact they were made. The fact that Frank received ten successive
solicitations for heroin is probative circumstantial evidence of his involvement in a
conspiracy to distribute heroin. The defense argues that the calls contain implicit
factual assertions about the callers' belief that the defendant could supply the
desired heroin. But the government did not offer the calls to prove the truth of
these implicit assertions. Even if the callers had no real desire for the drug, and no
faith that Frank could deliver it, the fact that he received ten of these calls is still
evidence of his participation in a heroin distribution conspiracy.
What do you think of the court's reasoning? Why would anyone
make such a call if he had no desire for the drug or belief that
Frank could supply it? Could the reasoning be the same if
Frank had received only one call? What result if the court had
applied the “intent” test?

9. Reflection on the Definition of Hearsay: Should FRE 801 Be

Revised?
The goal of a definition of hearsay is at least twofold. It should
advance hearsay policy by identifying evidence that should be subject
to the hearsay prohibition of FRE 802. It should also provide rules
that are as clear and as simple as possible for judges to apply quickly
in the charged atmosphere of an ongoing trial. Thus, it may be
undesirable to burden the definition of hearsay with an intent test,
both in terms of time and factfinding competence. If so, must intent be
ignored and the identification of hearsay remain focused solely on the
literal content of the words uttered to see whether the evidence was
offered to prove the truth of those words?
An alternative is, of course, the “declarant-oriented” approach to
defining hearsay adopted in Dullard. This approach would define all
of these problematic utterances as hearsay without the necessity of
any “intent” test at all. The result would be wholesale exclusion of
utterances whenever relevance depends on the complete trip around
the testimonial triangle.
There are other options for the definition. In Tex. R. Crim. Evid.
801(c) and Tex. R. Civ. Evid. 801(c), Texas has adopted a definition
of “matter asserted” that focuses on the use of utterances to prove
the beliefs of the declarant. “Matter asserted” includes “any matter
explicitly asserted, and any matter implied by a statement, if the
probative value of the statement as offered flows from declarant's
belief in the matter.” Professor Michael Graham proposes a similar
definition that focuses on the presence of a necessary inference of
sincerity:
“Hearsay” is a statement offered in evidence, other than one made by the declarant
while testifying at the trial or hearing, to the extent relevance depends upon (1) the truth
of the matter asserted or (2) the declarant's belief in the truth or falsity of the

482
matter asserted. [Michael Graham, Stickperson Hearsay: A Simplified Approach to
Understanding the Rule Against Hearsay, 1982 U. Ill. L. Rev. 887, 921 (1982).]
In practice, judges probably apply the truth-of-the-matter-asserted
language of FRE 801(c) in a literalistic fashion, until they are
confronted with an out-of-court utterance where the declarant's
specific intent to communicate an unstated belief is clear. Then they
craft some kind of intent test to exclude it. Is such muddling through
acceptable? Professor Roger Park contends that judges are doing
fine with the current rule:
 A review of the published caselaw does not reveal any obvious signs of injustice . . . .
The cases generally involve utterances classed as [not hearsay] that raise no real
insincerity dangers affecting the purpose for which they are being used . . . . [F]ederal
courts are reaching fair results in resolving implied assertion problems under the existing
assertion definition. [Park, 74 Minn. L. Rev. at 836-838.]
It would be possible to abandon the categorical thinking that
underlies the truth-of-the-matter asserted test, the intent test, and the
declarant-oriented test. The definition could focus on the more
functional question whether the utterance is one that, from its content
or context, appears to raise few sincerity risks. Professor Paul Milich
suggests a specific test that would require judicial appraisal of the risk
of insincerity:
If it appears from the circumstances and the language used that the declarant probably
would not have used that particular locution to lie about the fact in question, then the
reduced risk of insincerity frees the evidence from the definition of assertion and the
federal definition of hearsay. [Paul S. Milich, Re-examining Hearsay Under the Federal
Rules: Some Method for the Madness, 39 Kan. L. Rev. 893, 909 (1991).]
A shift in the definition toward an explicit appraisal of sincerity risk
on a case-by-case basis affords the trial judge more discretion in
applying the basic hearsay rule of exclusion. Lack of sincerity danger
would be a stand-in for greater probative value, and out-of-court
utterances would escape the definition because trial judges evaluate
them as more probative. If appellate courts defer to this evaluation,
then there could be less appellate review than is currently afforded
under any of the more categorical “truth of the matter asserted,”
“intent” and “declarant-oriented” definitions. See also Alex Stein,
Foundations of Evidence Law 193-196 (2005) (arguing that the
statement-oriented definition of hearsay is too narrow, while the
declarant-oriented definition is overinclusive, and suggesting adoption
of a broad standard authorizing courts to admit any hearsay
statement, express or implied, when the witness testifying about that
statement provides factfinders with testable information about the
statement's credibility and background conditions).
We have discussed here only a fraction of the academic ink that
has been spilled on the question of the definition of hearsay. As we
stated at the beginning of this chapter, a brief doctrinal definition can
only imperfectly capture all of the reasons for the hearsay prohibition.
Any test of hearsay that focuses solely on identifying sincerity danger
reflects a choice to ignore perception and memory dangers. This
reflects a compromise with other values at stake in our system of trial,
including the efficiency of trials, confidence in jury factfinding, the role
of the trial judge and the nature of appellate review. Different
definitions reflect a difference in thinking about where

483

the compromise should be drawn. After you have studied the

exemptions and exceptions to the general rule of exclusion, we will
again examine some of the current and diverse thinking on the
meaning, function, and future of the entire hearsay rule.

B. A GENERAL APPROACH TO THE ADMISSION OF HEARSAY

UNDER THE EXEMPTIONS AND EXCEPTIONS

Many out-of-court statements, although they are hearsay, are

admitted into evidence to prove the truth of the matters they assert.
FRE 801(d) exempts eight types of out-of-court statements from the
definition of hearsay, and FRE 803, 804, and 807 create 29 explicit
exceptions to FRE 802's rule of exclusion. In terms of the process by
which judges admit these various statements, there is no difference
between an FRE 801(d) hearsay exemption and an FRE 803, FRE
804, or FRE 807 hearsay exception. Exemptions and exceptions are
the same. As we explain below, the United States Supreme Court
also treats them as indistinguishable for purposes of the Sixth
Amendment Confrontation doctrine. We discuss exemptions and
exceptions separately in the sections of this chapter only as a matter
of organizational convenience.

1. Justification for the Exemptions and Exceptions

There are differences, however, in the justifications for admitting all
these different types of hearsay statements. The drafters of the
Federal Rules created the new status of exemption under FRE 801(d)
to admit hearsay statements whose principal rationale for admission
is the possibility for cross-examining the declarant. Most hearsay
exceptions admitted under FRE 803, 804, and 807 are justified by the
presence of circumstances that tend to minimize one or more of the
hearsay dangers, making these statements perhaps more
“trustworthy”—and certainly more amenable to in-court adversarial
scrutiny—than other hearsay. Thus, there would be, in theory, less
reason for concern about the absence of cross-examination.
We analyze these justifications in more detail in each of the
following sections in this chapter, and you should ask yourself how
persuasive you think they are. After you have spent considerable time
and effort on identifying hearsay and on understanding how and why
hearsay policy operates to exclude it, it may come as something of a
shock to see how freely a lot of hearsay is admitted through the
exemptions and exceptions.

2. The Categorical Approach

FRE 801(d), FRE 803, and FRE 804 all apply a categorical approach
to the admission of hearsay. FRE 807 applies a noncategorical
“trustworthiness” approach, which will be discussed separately in
Section F. By “categorical approach” we mean that the

484

rules establish specific categories of out-of-court statements that can

be admitted for their truth. These categories are sometimes defined
by who the declarant is, sometimes by the content of the statement,
and sometimes by the circumstances in which the statement was
made. You should read through these rules now to get a general
sense of what these categories are like.

3. The Process of Admission

The process of admission under FRE 801(d), FRE 803, and FRE 804
goes something like this: A proponent typically offers to prove a
declarant's out-of-court statement through the testimony of a witness
who overheard it or through an exhibit that contains it, such as a
document in which the statement is written or a tape or some other
recording of it. The opponent typically objects on grounds of hearsay.
In order to rule on this objection, the judge must decide whether the
statement is hearsay under FRE 801(a)-(c). If it is, then the burden is
on the proponent of the statement to produce foundational evidence
—typically evidence of who the declarant is, or what the content of
the statement is, or the out-of-court circumstances in which the
hearsay statement was made—that satisfies the categorical terms of
a specific exemption or exception. The doctrinal terms of the
exemption or exception tell you what foundational evidence needs to
be produced. The judge then decides whether the proffered
statement fits within the specific categorical exemption or exception.

4. The Foundational Requirements

We call this foundational evidence foundation facts. See Eleanor
Swift, A Foundation Fact Approach to Hearsay, 75 Calif. L. Rev. 1339
(1987). You saw in Chapter Four that the proponent of an exhibit
must produce foundation facts that satisfy the standard for
authentication and identification set by FRE 901(a). In the same way,
under FRE 801(d), FRE 803, and FRE 804, the proponent must
produce foundation facts that satisfy the standards set by the
categorical subsections of those rules. Typically, this will mean that
the proponent must produce a witness who can testify about these
foundation facts. We call this witness a foundation witness.
Take as one example a witness, Joe, who testifies in court and
identifies Sam, the defendant, as the perpetrator of a crime or tort. At
a lineup held at a police station just a few days after the crime or
accident, Joe made a statement that the perpetrator was Peter, not
Sam. Sam, the defendant, would obviously want to offer this prior
statement into evidence to prove that he was not the perpetrator. Can
Joe's prior statement be admitted for the truth of the matter it asserts?
Yes, if it fits within a categorical exemption or exception. By reading
FRE 801(d)(1)(A), you will see that the foundational requirements for
it are as follows:
 the statement was made by a declarant who is now testifying in
court as a witness;
the declarant is subject to cross-examination about the
statement;
the contents of the statement are inconsistent with testimony
given at trial;

485

the statement was made under penalty of perjury; and

the statement was made at a trial, hearing, other proceeding, or

in a deposition.

Focusing for now just on the fourth requirement, the proponent will
have to produce foundational evidence as to whether the statement
was made under penalty of perjury. A foundation witness who can
present foundation facts that Joe made his statement subject to a
formal oath or attestation might be Joe himself; it might be the police
officer at the lineup; or, it could be anyone else who observed Joe
and who could describe the oath or attestation. After hearing this
foundational testimony, the judge will decide whether the categorical
requirement has been satisfied. This is a preliminary question that is
necessary to the application of an evidence rule. FRE 104 governs
such questions, as you know. Applying the policies underlying Rule
104 you should be able to determine whether the judge applies Rule
104(a) or (b). As a general principle, FRE 104(a) applies unless the
facts listed above as foundational requirements are necessary to the
out-of-court statement's relevancy. Are they? You can see that they
are not. Joe's prior statement would be relevant to prove that Sam
was not the perpetrator whether or not it was under penalty of perjury.
This requirement is, instead, a matter of hearsay policy. Thus, the
judge would have to be persuaded by a preponderance of the
evidence, pursuant to FRE 104(a), that the foundational requirement
was satisfied. This is the proponent's burden, and it is the key to the
admission of hearsay. We will have more to say about this judicial
decisionmaking process as we discuss Rules 801(d), 803, and 804 in
greater detail.

5. Multiple Exemptions and Exceptions May Apply

As you study the hearsay exemptions and exceptions, keep in mind
that an out-of-court statement may sometimes be admissible
pursuant to more than one of them. For example, the deposition
testimony given by a party who is now testifying as a witness could
be admissible against the party as an admission under FRE 801(d)(2)
(A) or as a prior inconsistent statement under oath under FRE 801 (d)
(1)(A); a statement may be both a present sense impression under
FRE 803(1) and an excited utterance under FRE 803(2); a document
may qualify for admission as a public record under FRE 803(8) and
as a business record under FRE 803(6). When this is the case, it is
sufficient to overcome a hearsay objection to show that the evidence
falls within one exemption or exception. Similarly, except in one
context that we will consider later, the fact that evidence does not
quite fit within a particular exemption or exception does not prevent
its admission under a different one.

6. FRE 805
It's fairly common for one statement to contain another. Consider a
police report of an assault with a deadly weapon quoting a physician
who treated the victim: “The victim told me that he was stabbed three
times.” Alternatively, a friend might tell you: “You'll never believe what
Professor X just said,” and then summarize what Professor

486

X said. The police report and your friend's summary of Professor X

are both statements that contain statements. If both the outer
statement-containing statement and the inner (contained) statement
are offered for their truth, this raises a problem of “hearsay within
hearsay,” sometimes also referred to as “double hearsay” or “multiple
hearsay.” FRE 805 addresses this issue.
 FRE 805: HEARSAY WITHIN HEARSAY
Hearsay within hearsay is not excluded by the rule against hearsay if each part of the
combined statements conforms with an exception to the rule.
This means that whenever multiple layers of hearsay are
present, each hearsay statement must fall within either an FRE
801(d) exemption or an FRE 803, 804, or 807 exception. Every
individual hearsay statement must be identified as admissible by
its own exception or exemption.
The burden is on the proponent of multiple hearsay to satisfy the
factual requirements of all of the exemptions and exceptions being
used. Any combination of exceptions and exemptions is permitted.
Calling these examples “multiple hearsay” presupposes that
each level of statement is offered for its truth. That might not
always be the case. One or more levels might be offered for a
nonhearsay purpose of the type discussed earlier in the chapter.
In this sense, it might be more accurate to define the problem as
that of “statements within statements.” To cross the admissibility
barrier, each statement must either fall within a hearsay exception
or exemption or serve a nonhearsay purpose. Consider Back v.
Nestle USA, Inc., 694 F.3d 571, 577-578 (6th Cir. 2012). This age
discrimination suit was supported by an affidavit from the plaintiff's
coworker. According to that affidavit, the defendant's human
resources director repeated a statement by someone in higher
management about a plan to terminate the oldest employees. The
Sixth Circuit decided that the director's statement was admissible
pursuant to FRE 801(d)(2)(D). The higher management's
statement, the Court explained, could also be admitted under FRE
801(d)(2)(D) if the plaintiff could prove by independent evidence
that the declarant spoke within the scope of his employment.
Because the plaintiff offered no such evidence, his coworker's
affidavit failed to satisfy FRE 805.

7. The Confrontation Clause

There is one more introductory point to be made. In criminal
prosecutions, defendants have a right “to be confronted with the
Witnesses against them,” which is protected by the Sixth Amendment
to the U.S. Constitution. This right has been construed by the
Supreme Court to mean that so-called “testimonial” hearsay
statements generally may not be used by the prosecution in criminal
trials. Crawford v. Washington, 541 U.S. 36 (2004). We will discuss
the meaning given to the term testimonial and the complexities of
applying the testimonial standard in Section G of this chapter.
Crawford and its progeny affect some, but not all, of the hearsay
exceptions, and there

487

are also exceptions to its prohibition, including that the declarant is

testifying as a witness at the trial. We raise the confrontation issue
now because some inculpatory hearsay statements that you will find
to be admissible under a hearsay exemption or exception must still
undergo scrutiny under Crawford as well. We raise the Crawford
issue explicitly at a few points in Sections C, D, E, and F.

C. HEARSAY EXEMPTIONS

FRE 801(d) exempts certain types of out-of-court statements from the

definition of hearsay. These statements are admissible to prove the
truth of the matters they assert, assuming that they are otherwise
unobjectionable. FRE 801(d)(1) exempts certain kinds of statements
previously made out of court by a testifying witness. FRE 801(d)(2)
exempts out-of-court statements made by a party or by persons
affiliated with a party, so long as the statements are offered against
that party. Reading the Advisory Committee Notes to FRE 801(d) will
give you some idea of the controversy surrounding the hearsay status
of these two broad categories of out-of-court statements.

1. FRE 801(d)(1) and (2)

RULE 801. DEFINITIONS
(d) Statements That Are Not Hearsay. A statement that meets the following conditions
is not hearsay:
 (1) A Declarant-Witness's Prior Statement. The declarant testifies and is subject to
cross-examination about a prior statement, and the statement:
(A) is inconsistent with the declarant's testimony and was given under penalty of
perjury at a trial, hearing, or other proceeding or in a deposition;
(B) is consistent with the declarant's testimony and is offered to rebut an express
or implied charge that the declarant recently fabricated it or acted from a recent
improper influence or motive in so testifying; or
(C) identifies a person as someone the declarant perceived earlier.
(2) An Opposing Party's Statement. The statement is offered against an opposing
party and:
(A) was made by the party in an individual or representative capacity;
(B) is one the party manifested that it adopted or believed to be true;
(C) was made by a person whom the party authorized to make a statement on
the subject;
(D) was made by the party's agent or employee on a matter within the scope of
that relationship and while it existed; or
(E) was made by the party's co-conspirator during and in furtherance of the
conspiracy.

488
The statement must be considered but does not by itself establish the declarant's
authority under (C); the existence or scope of the relationship under (D); or the
existence of the conspiracy or participation in it under (E).

2. Explanation of FRE 801(d)(1): The Testifying Declarant Must

Be “Subject to Cross-examination About a Prior Statement”
FRE 801(d)(1) admits statements made outside of court by a hearsay
declarant who is testifying as a witness at trial. With the declarant-
witness in court, subject to cross-examination, you might think that all
of that witness's out-of-court statements should be admitted as
exempt from the hearsay rule of exclusion. This is not the case,
however, as the rule admits only three categories of prior statements.
There are two basic requirements that apply to all three categories:

the out-of-court declarant is testifying at trial; and

the declarant is subject to cross-examination about the prior
statement.

Consider the example presented on page 484, supra: Joe is an

eyewitness to a crime or accident and he testifies in a criminal or civil
case brought against Sam, the alleged wrongdoer. At trial, Joe
identifies Sam as the wrongdoer. Suppose that Joe had been brought
to a police lineup that included Sam just a few days after the incident.
After viewing the lineup Joe identified Peter, not Sam, as the
perpetrator. Sam would like to offer evidence of this prior statement in
his own defense. Would it be admissible under FRE 801(d)(1)(A), or
(B), or (C)?
a. Preliminary Factfinding

The Declarant Is Testifying at Trial. The first foundational

requirement is that the person testifying—Joe—be identified as the
same person—Joe—who made the proffered out-of-court statement.
United States v. Byrd, 210 Fed. App'x 101 (2d Cir. 2006) (defendant's
offer of his probation officer's testimony about statements made by
defendant himself was inadmissible because defendant did not
testify). The proponent of Joe's hearsay statement can fulfill this
requirement through Joe's own acknowledgment that he made the
out-of-court statement, or through the testimony of another witness
who can say that the witness Joe was the out-of-court speaker.
Examination Concerning the Statement. Then the judge must
determine that Joe is subject to cross-examination about the prior
statement. The opponent's opportunity to cross-examine the
declarant-witness is, as we have said, the principal justification for
admitting Rule 801(d)(1) statements. Although the rule speaks in
terms of cross-examination only, it has been construed to mean
redirect examination as well. Thus, either party may introduce a prior
statement of a witness, either on direct or cross-examination, and the
opposing party must then have the opportunity to examine the
witness about the statement. Prior statements can also be admitted
after the

489

witness has testified. The declarant-witness must still be available in

court or subject to recall by the opposing party to satisfy the
requirement of cross-examination about the statement, if the witness
was not asked about it during the original examination by the
opponent.4
Remember that the declarant-witness's prior hearsay statement is
now being offered for its truth. Thus, the opponent of the statement
will want to examine the declarant-witness about the hearsay
statement in order to expose reasons why it should not be relied on
by the jury. If the declarant-witness remembers both making the prior
statement and the events that are the subject of the statement, the
cross-examiner can elicit information pertinent to evaluating the
declarant-witness's testimonial qualities at the time the statement was
made. If the declarant-witness denies the truth of the prior statement,
or attempts to explain it, the jury will decide what weight to give it. If
the witness adopts as true the contents of a prior inconsistent
statement, there is then no hearsay problem because the adopted
inconsistency corrects and becomes a part of the witness's in-court
testimony. United States v. Lopez-Lopez, 282 F.3d 1, 17 (1st Cir.
2000) (witness adopted prior statement that he had observed
defendant for “only two or three seconds” as opposed to his trial
testimony of “four or five” seconds; “adoption bypasses . . . the entire
hearsay problem”). But “adoption” of a prior consistent statement
does not eliminate the hearsay problem.
Denial of, or Inability to Remember, the Prior Statement. What if
the witness denies making or cannot remember making the prior
statement? If the prior statement is an authenticated writing or
recording, there may be little doubt that it was made. If the prior
statement was not recorded, then it will be the subject of testimony
from someone who was present at the time—the police officer, for
example, who was with Joe at the police lineup when Joe identified
Peter and not Sam. At trial, if Joe denies that he made the prior
inconsistent identification, he will still be considered to be a witness
subject to cross-examination about the statement. But how would you
cross-examine him? There is likely to be nothing more than a
swearing contest between two witnesses, such as Joe and the police
officer, about whether the statement was made.
 Inability to Remember the Underlying Events. It may also
happen that the witness cannot remember the underlying event that
is the subject of the statement. If this seems far-fetched to you,
consider United States v. Owens, 484 U.S. 554 (1988), in which a
battery victim's prior statement identifying defendant Owens as his
assailant was admitted under FRE 801(d)(1)(C). At trial, the victim
had no memory of seeing the assailant. He could remember the
attack and making the prior identification of Owens at the hospital, but
he could not recall how he knew it was Owens who attacked him.
How would you cross-examine this victim about his perception or
memory of the assailant? Should the victim be considered to be a
witness subject to cross-examination about the statement, in
fulfillment of FRE 801(d)(1)?

490

In Owens, the Supreme Court rejected both a confrontation clause

and a Rule 801(d)(1) challenge to the admission of the prior
statement of identification. With respect to the adequacy of cross-
examination under FRE 801(d)(1) the Court said:
Ordinarily a witness is regarded as “subject to cross-examination” when he is placed on
the stand, under oath, and responds willingly to questions. Just as with the constitutional
prohibition, limitations on the scope of examination by the trial court or assertions of
privilege by the witness may undermine the process to such a degree that meaningful
cross-examination within the intent of the rule no longer exists. But that effect is not
produced by the witness's assertion of memory loss—which . . . is often the very result
sought to be produced by cross-examination, and can be effective in destroying the
force of the prior statement. Rule 801(d)(1)(C), which specifies that cross-examination
need only “concer[n] the statement,” does not on its face require more. [Id. at 561-562.]
Owens thus imposes a minimal requirement of what it means to
cross-examine a witness “concerning” a prior statement, which was
the applicable term prior to the restyling of the rule. There is no
reason to think that the new text—“about” the statement—changes its
meaning. Under Owens, it does not matter that the witness denies
making, or cannot remember, either the prior statement or the
underlying event, or perhaps even both. United States v. Harty, 476 F.
Supp. 2d 17, 25 (D. Mass. 2007) (witness's hearsay identification of
defendant's photograph admissible under FRE 801(d)(1)(C) despite
the witness's inability to remember the alleged crime, to recognize the
photo currently, and to remember why he had picked out defendant's
photo originally).
Lower courts following Owens have applied this minimalist position
to statements governed by FRE 801(d)(1)(A). In United States v.
Milton, 8 F.3d 39 (D.C. Cir. 1993), the court held that a witness who
claimed to have forgotten both the underlying events and the making
of the prior inconsistent statement was nevertheless subject to cross-
examination concerning it:
When a witness has forgotten the basis for and the giving of testimony under oath in an
earlier proceeding and that testimony is then introduced into evidence, defense
questioning, though impaired, is not futile for the reasons given in Owens. It is still
possible to bring out on cross-examination the “witness' bias, his lack of care and
attentiveness . . . and even (what is often a prime objective of cross-examination) the
very fact that he has a bad memory.” And that is precisely what took place in this case.
Defense counsel elicited testimony from Jones that tended to discredit her grand jury
testimony. She admitted that when she appeared before the grand jury she was addicted
to drugs, was suffering from withdrawal and was on the verge of a nervous breakdown.
[Id. at 46-47.]
In United States v. Keeter, 130 F.3d 297 (7th Cir. 1997), the
defendant claimed that the witness was feigning a loss of memory of
both the litigated event and the prior statement, and thus could not be
cross-examined. The Seventh Circuit, relying on Owens, held that the
“Supreme Court's point was that the confrontation clause (and the
rule) are satisfied when the witness must look the accused in the eye
in court; shortcomings in the declarant's memory may be made
known to the jury.” Id. at 302.

491

Personal Knowledge Is Required. The Ninth Circuit opinion in

Owens, 789 F.2d 750 (9th Cir. 1986), also discussed the requirement
of personal knowledge. Courts and commentators are agreed that the
requirement applies to statements admitted under FRE 801(d)(1).
Thus, in Owens, where the witness-declarant could not remember
seeing his assailant at the time of the attack, the defendant Owens
argued that personal knowledge had not been shown. The appellate
court concluded that it could not say whether the district court had
actually decided the personal knowledge issue. Most courts have
applied FRE 104(a) to the personal knowledge requirement for
hearsay declarants. This requires a higher threshold of proof to be
met by proponents, and requires a decision by the judge under the
preponderance of the evidence standard. In cases of failed memory,
such a decision may be difficult to make.
b. Other Justifications for the FRE 801(d)(1) Exemptions
In addition to the witness-declarant being subject to some form of
cross-examination, the foundational requirements of prior statements
admitted under subsections (A), (B) and (C) may make those
statements more reliable than other hearsay.

3. Explanation of FRE 801(d)(1)(A): Prior Inconsistent

Statements
a. Preliminary Factfinding
The foundational requirements for FRE 801(d)(1)(A) are:

the contents of the statement are inconsistent with testimony

given at trial;
the statement was given under the penalty of perjury; and
the statement was made at a trial, hearing, other proceeding, or
in a deposition.

Inconsistency. In the example of Joe's prior identification of Peter,

the foundational requirement of its inconsistency with his in-court
identification of Sam is determined by comparing the contents of the
two statements. Generally, the inconsistency will appear from the
contents alone, particularly when the statements are diametrically
opposed such that the truth of one implies the falsity of the other. But
inconsistency is not limited to such opposition; “any substantive
divergence between two statements” will permit use of the prior
statement. United States v. Jasin, 215 F. Supp. 2d 552, 591 (E.D. Pa.
2002) (citing Weinsten's Federal Evidence §801.21(2)(b)).
Sometimes there may be doubt about the fact of inconsistency,
particularly if the allegedly inconsistent statement is ambiguous. The
judge should make an FRE 104(a) determination of inconsistency—
under the higher standard of preponderance of the evidence. The
relevancy of the prior statement is to prove the truth of its own
content; relevancy is not dependent on whether the statement is
actually inconsistent with the witness's trial testimony.

492

Inconsistency Due to Evasion. Some courts have found

inconsistency when a witness claims a loss of memory of relevant
events while testifying at trial, but had previously testified in detail
about them before a grand jury. “We have previously concluded that a
witness's 'feigned' memory loss can be considered inconsistent under
the Rule, for 'the unwilling witness often takes refuge in a failure to
remember.' ” United States v. Cisneros-Gutierrez, 517 F.3d 751, 757
(5th Cir. 2008). Inconsistency may be found in evasive answers,
silence, or changes in position. United States v. Iglesias, 535 F.3d
150, 159 (3d Cir. 2008) (prior testimony from a suppression hearing
admitted when, just two days later, witness's testimony “included one
word admissions, evasive and rambling responses, and
equivocations”).
Under Penalty of Perjury and at a Trial, Hearing, or Other
Proceeding. The circumstances in which the inconsistent statement
was made are also part of the FRE 801(d)(1)(A) foundation. The
proponent must show that the statement was made under penalty of
perjury and that the statement was made in a trial, hearing,
deposition, or other proceeding. These foundation facts are relatively
easy to prove, although you can see that Joe's prior inconsistent
statement, made at the lineup, would not satisfy the requirement of
being made at a hearing. But is a lineup an “other proceeding” that
would satisfy the rule's requirement? Typically, statements made in
the course of interviews and lineups are held not to be within the
meaning of “other proceedings.” They are not made under penalty of
perjury, and the formality of trials, hearings, and depositions is
thought to be conducive to reliability and truthfulness; the informality
of most other interrogations is not. In United States v. Perez, 870 F.2d
1222 (7th Cir. 1989), the transcript of defense counsel's pretrial
interview with an adverse government witness was held not
admissible under FRE 801(d)(1)(A). The statement was under oath
and recorded by a court reporter. But it did not meet the requirements
of a deposition under the Federal Rules of Criminal Procedure. The
government was not present and the court did not authorize the
interview (note that such a statement might still be admitted pursuant
to a criminal defendant's entitlement to compulsory process under the
Sixth Amendment: see page 611 below). Some interrogations by
immigration officers have been held to be “other proceedings.” United
States v. Castro-Ayon, 537 F.2d 1055, 1058 (9th Cir. 1976)
(interrogation bore “many similarities to a grand jury proceeding; both
are investigatory, ex parte, inquisitive, sworn, basically prosecutorial .
. . recorded, and held in circumstance of some legal formality”).
b. Justification for the FRE 801(d)(1)(A) Limitations
The Advisory Committee originally proposed that all prior
inconsistent statements could be used for their truth, as is true in
California under Evidence Code §1235. Because such statements
are closer in time to the events they relate to, and the declarant-
witness is testifying before the jury, hearsay dangers are attenuated.
The House of Representatives, however, decided that admissibility
should be limited to statements made under oath and subject to
cross-examination at the time they were made. The final version of
FRE 801(d)(1)(A) represents a compromise between these two
positions: A witness's inconsistent statement may be used for its truth
only if made at a

493

trial, hearing, other proceeding, or in a deposition, but without the

requirement of cross-examination. The compromise permits
admission of statements made to grand juries under FRE 801(d)(1)
(A), used most commonly when government witnesses change their
stories at trial or claim not to remember the facts about the
defendant's culpability to which they testified previously.
 Most hearings or other proceedings are likely to be transcribed, so
the fact that the prior statement was made at all will be easier to
prove. Both sides to the debate over FRE 801(d)(1)(A), reported in
the Advisory Committee Note, also used arguments about the
reliability of prior inconsistent statements. The potential penalty of
perjury, and the requirement of being made at a hearing, were
intended to increase the trustworthiness of the statement. As we have
said before, admitting hearsay for such reasons of increased
trustworthiness is typical under the hearsay exceptions.
c. Prior Inconsistent Statements Not Within FRE 801(d)(1)(A)
At common law, any prior inconsistent statement could be admitted,
but only as nonhearsay to impeach the testifying witness, not for its
truth. Today, an allegedly inconsistent statement that does not fit
within FRE 801(d)(1)(A) may still be admitted just to show that the
witness has said inconsistent things and should not be relied on. Any
such statement qualifies as relevant and consequently admissible
pursuant to FRE 401 and 402. The use of prior inconsistent
statements for this impeachment purpose was discussed in Chapter
Seven. Notice that when a prior inconsistent statement is admissible
to prove its truth under FRE 801(d)(1)(A), its proponent must still give
the declarant an opportunity to explain the discrepancies between the
statement and her testimony, as required for all prior inconsistent
statements by FRE 613(b). Failure to give the witness that
opportunity and to allow “an adverse party . . . to examine the witness
about it” would prevent the statement's proponent from introducing it,
unless “justice so requires.” As provided by FRE 613(b), this limitation
does not apply only to party admission evidence that falls under FRE
801(d)(2).

4. Explanation of FRE 801(d)(1)(B): Prior Consistent Statements

a. Preliminary Factfinding
In our previous example, Joe might have told the police the license
plate number of the car involved in the crime or tort and then testified
to this same number at trial. The statement to the police could be
admissible for its truth as a prior consistent statement if the
requirements of FRE(d)(1)(B) are satisfied. According to these
requirements, the statement must be consistent with the declarant's
testimony and be offered:
(1) to rebut an express or implied charge that the declarant recently
fabricated it or acted from a recent improper influence or motive
in so testifying; or
(2) to rehabilitate the declarant's credibility as a witness when
attacked on another ground.
The consistency of Joe's two statements would be apparent. If there
are doubts about consistency, the preliminary question would be
decided similarly to the question of inconsistency, discussed above.

494

An Express or Implied Charge of Recent Fabrication or

Improper Influence or Motive. It seems obvious that parties would
find it advantageous to present their witnesses' prior consistent
statements to the jury for their truth. But FRE 801(d)(1)(B) applies
only if the credibility of the testifying witness has been attacked. Proof
of such attack will be apparent to the judge from the opponent's
cross-examination of the witness or from the admission of other
impeaching evidence. Prior consistent statements should not be
admitted for their truth until such an attack has actually occurred. The
kinds of impeachment techniques that qualify as charges of recent
fabrication or improper influence or motive are analyzed in Chapter
Seven. A common example of a motive to fabricate arises in criminal
cases where confederates of the defendant negotiate a plea bargain
and then testify against the defendant. The defense will seek to
impeach such witnesses with the suggestion that they have received
favorable treatment from the government in exchange for testimony
inculpating the defendant. United States v. Washington, 462 F.3d
1124, 1135 (9th Cir. 2006) (defense counsel accused witnesses of
colluding with each other, because of their plea agreements, “to make
up stories implicating [defendant] in the bank robbery”).
 To “Rebut” the Charge. In Tome v. United States, 513 U.S. 150
(1995), decided prior to the introduction of subsection B(ii), the
question was raised whether the consistent statement could rebut the
charge of improper influence or motive, as required by Rule 801(d)(1)
(B), only if it was made prior to the date at which the improper
influence or motive allegedly arose. In Tome, a child witness testified
in court about acts of sexual assault by her father. After cross-
examination, several of her prior statements making the same
accusations were then admitted under FRE 801(d)(1)(B) to rebut the
implicit charge that the child's in-court testimony was fabricated and
was motivated by a desire to live with her mother. The child's out-of-
court accusations had been made, however, after the child's motive to
fabricate arose; that is, after primary custody had been awarded to
the father. The Supreme Court majority held that the prior
accusations did not, therefore, fall within the meaning of rebut under
subsection (B). The majority reasoned first that the term meant
rebutting a specific charge, not just bolstering credibility:
[T]he question is whether A.T.'s out-of-court statements rebutted the alleged link
between her desire to be with her mother and her testimony, not whether they suggested
that A.T.'s in-court testimony was true. The Rule speaks of a party rebutting an alleged
motive, not bolstering the veracity of the story told. [Id. at 157-158.]
The majority noted that this same common law meaning of “to rebut”
had been adopted by the Advisory Committee in its Note to FRE
801(d)(1)(B), limiting the scope of subsection (B)(i) to statements
made before the motive to fabricate arose. Only pre-motive
statements could rebut an improper motive because their consistency
would show that the in-court testimony was not tainted by that motive.
Four dissenting Justices read the term rebut as raising a relevance
issue rather than a rigid pre-motive timing requirement. In their view,
not only pre-motive but some post-motive consistent statements
might be relevant to rebut a charge of recent fabrication or improper
influence or motive, and should be admitted under the rule.
Cases decided since Tome raise the question as to when a motive
to fabricate arises. When several persons are complicit in a crime,
each may seek to cooperate with

495
 the government in order to receive more lenient treatment. Typically,
cooperation involves giving incriminating testimony against others.
Does the motive to fabricate arise at the time of arrest? United States
v. Trujillo, 376 F.3d 593, 611 (6th Cir. 2004) (it is not believable that “a
day or two after [declarant-witnesses] were stopped with more than
fifty kilograms of marijuana in their car and were subsequently
arrested, they did not have a motive to lie, regarding the source of the
marijuana, to get lenient treatment”). Or, not until discussions begin
about what benefits, if any, are to be received in exchange for
cooperation? Several Circuit Courts have refused to hold that a
motive to fabricate always attaches upon arrest and require the trial
court to make a finding about motive on the specific facts:
[S]tatements made after arrest are not automatically and necessarily contaminated by a
motive to fabricate in order to curry favor with the government. Indeed, we recognize
that a variety of motives may drive a person's decision to disgorge the details of a crime
he has committed . . .
But given the complexity of the human psyche, we agree with the Fourth, Seventh,
and Eighth Circuits that whether a witness had a motive to fabricate when prior
consistent statements were made is plainly a question of fact to be resolved by the trial
court based precisely on the particular circumstances of an individual case. Quite simply,
the trial court is in the best position to make that determination and its determination
deserves great deference. [United States v. Prieto, 232 F.3d 816, 820-821 (11th Cir.
2000).]
Do you think factfinding about the motives of the human psyche is
possible? Would a bright-line legal rule about when a motive to
fabricate will be held to have arisen in plea bargaining situations be
preferable?
b. Justification for the FRE 801(d)(1)(B)(i) Limitation
At common law, it was clear that only consistent statements made
before the motive to fabricate arose were admissible. Broader
admissibility, it was thought, would create a risk of admitting
manufactured consistent statements, and could unfairly surprise the
opponent. The majority in Tome adopted this common law
justification.
c. Beyond Motive: FRE 801(d)(1)(B)(ii)
 As of December 1, 2014, subsection B(ii) allows a prior consistent
statement of a testifying declarant “to rehabilitate the declarant's
credibility as a witness when attacked on another ground.” That is,
when the attack on the declarant's credibility does not involve an
express or implicit accusation of recent fabrication or a recently
acquired motive to lie, his prior consistent statement, to the extent it is
relevant, will be admissible as evidence for its truth.
d. Limits on Credibility-bolstering Statements Continue to Apply
Consistent statements may still be relevant to bolster credibility. As
noted by the Advisory Committee, their admission for that purpose
will be subject to “the traditional and well-accepted limits,” which we
discussed in Chapter Seven.

496

5. Explanation of FRE 801(d)(1)(C): Prior Statements of

Identification
a. Preliminary Factfinding
In our lineup example, now assume that Joe identified Sam at the
lineup as the perpetrator of the crime or tort and also identified Sam
when testifying in court. Statements identifying a person are admitted
under FRE 801(d)(1)(C) without any necessary predicate testimony
from the declarant-witness that is consistent or inconsistent with the
out-of-court identification. The foundational requirements are:

the statement identifies a person; and

the statement identifies that person as someone the declarant
perceived earlier.

You can see that these foundation requirements are minimal. Joe's
identification of either Sam or Peter at the lineup clearly qualifies.
Indeed, the statement may be made in contexts other than lineups,
and no oath is required. Thus, FRE 801(d)(1)(C) adds to what may be
admitted under (A) and (B). A prior identification that is consistent
with in-court testimony (Joe's identification of Sam) can be admitted
without proof of any attack on Joe's sincerity. And it can be admitted
even if Joe has forgotten the underlying event and cannot make an
in-court identification at all. If a pretrial identification is inconsistent
with in-court testimony (Joe's identification of Peter), it can be
admitted even if not admissible under FRE 801(d)(1)(A) because not
made under oath or at a hearing. The jury as factfinder determines
the accuracy of the out-of-court identification. The inability or
hesitancy of a witness to make an in-court identification, recantation
of a prior identification, or discrepancies in the descriptions given of
the person identified, are all “customary grist for the jury mill.”
Manson v. Braithwaite, 432 U.S. 98, 116 (1977).
The Statement Identifies a Person as Someone the Declarant
Perceived Earlier. According to the Advisory Committee Note, FRE
801(d)(1)(C) was intended to include statements of identification
made at traditional lineups and show-ups. The declarant would be
reperceiving the person whom she had seen previously committing a
crime or participating in some other disputed event. But the language
used in the rule is not limited to reperceptions at lineups. Subsection
(C) has been interpreted very broadly to include statements that
identify a person seen after the disputed event in a chance
encounter; that identify the photograph of the person; and that identify
a police artist's sketch of the person. It has also been held to permit
the admission of hearsay statements that identify people (for
example, in surveillance photos) who are known to the declarant, but
when the declarant did not perceive the underlying disputed event.
The Third Circuit has held that a statement to police, made on the
day after a series of home invasions in a neighborhood, that the
witness “had seen three of the defendants in the area of the crime
during the time the homes were invaded” was admissible under FRE
802(d)(1)(C). United States v. Lopez, 271 F.3d 472, 485 (3d Cir.
2001). This statement was made without reperception of the
defendants, and was acknowledged by the court to be simply “a
person coming forward after a crime is committed and saying he saw
particular persons at a certain place and time.” This “Lopez rule”

497
 was rejected and, in our view, soundly criticized as contrary to the
meaning of “identification” as had been used in Rule 801(d)(1)(C)
prior to the restyling. United States v. Kaquatosh, 242 F. Supp. 2d
562, 566-567 (E.D. Wis. 2003) (statement of identification requires
designation of a particular person (or photo) upon reperception as
being the same as the person previously perceived). If reperception is
not required, subsection (C) allows admission of out-of-court
statements that identify perpetrators of crimes but are really nothing
but accusations that have no particular indicia of reliability. Federal
case law has not taken up the Lopez/Kaquatosh debate, but the
majority of state courts that have cited it hold with the Lopez view that
subsection (C) statements are not limited to those made at formal
lineups, etc., and, if made by a person who knows the subject of the
identification, can be made in police interviews without reperception.
Commonwealth v. Adams, 941 N.E.2d 1127, 1130-1133 (Mass. 2011)
(defendant's younger brother identified defendant as a shooter in two
police interviews). The restyling of subsection (C)—that the statement
“identifies a person as someone the declarant perceived earlier”—
does not either explicitly support or reject the Lopez view.
A similar split in authority exists as to whether a physical description
of a person given by the declarant to the police, also without any re-
perception of the person, fits within FRE 801(d)(1)(C). United States
v. Brink, 39 F.3d 419 (3d Cir. 1994) (admitting bank teller's statement
to police, on the day following a bank robbery, that the robber had
dark-colored eyes); Puryear v. State, 810 So. 2d 901 (Fla. 2002)
(excluding robbery victim's statement to police that assailant was a
black male, missing every other tooth, and had body odor). Case law
in state courts continues to reflect this split.
Our concern is that statements of accusation and description are
usually admitted under the hearsay exceptions for spontaneous and
excited statements under FRE 803(1) and (2), which we discuss on
pages 528-530, infra. If they are admitted instead under FRE 801(d)
(1)(C), it is without any of the limits of timing and stressful
circumstances that those exceptions impose, although subsection (C)
does require that the declarant testify as a witness and be subject to
cross-examination. Whether such statements are “testimonial” and
whether they are subject to exclusion in criminal trials under the
Confrontation Clause, as interpreted by Crawford v. Washington, is
discussed in Section G, infra.
Identifies a Person. As drafted, subsection (C) appears to be
limited to statements about the physical characteristics of persons.
Why should identifications of persons but not, for example,
automobiles be admissible? If that seems too far an extension of the
exemption, what about descriptions of the clothing worn by the
person? The answer to how narrowly or broadly to construe the
language of subsection (C) lies in the justification for the admission of
prior statements identifying people. In gray areas, one should be able
to state the reasons for the exemption and argue by analogy for
exclusion or admission of a particular piece of evidence.
b. Justifications for the Admissibility of Prior Statements of Identification
Remember that the basic justification for the FRE 801(d)(1)
exemptions is the opportunity to cross-examine the witness-
declarant. But since all prior statements

498

are not admitted, why are prior statements of identification included

within the exemption?
Subsection (C) is justified by the need for prior identification
testimony. Although it applies to both civil and criminal actions, this
exemption is of primary benefit to prosecutors in criminal
proceedings. The Advisory Committee Note describes identifications
made in court as “unsatisfactory and inconclusive . . . as compared
with those made at an earlier time under less suggestive conditions.”
In some cases, the prosecutor's use of the prior statement of
identification for its truth may be essential to avoid a directed verdict
of acquittal. Some witnesses may have genuinely lost the ability to
make an in-court identification, as occurred in the Owens case
discussed at page 491, supra. In this situation, neither a prior
inconsistent nor a prior consistent statement would be admissible
without subsection (C). There is also a risk that a prosecution witness
may testify falsely at trial because of intimidation or threats to self or
family members. The categorical approach to admission, however,
does not permit such a case-by-case assessment of need. If the out-
of-court statement satisfies the categorical requirements, it is
admissible.
It is not clear that the reliability of the declarant's testimonial
qualities is enhanced by the subsection (C) foundational
requirements. The out-of-court statement may be more reliable
because it was made closer in time to the event in which the person
identified participated. On the other hand, an oath is not required, the
setting may be quite informal, and no circumstance decreases the
risk of improper motive for making the identification. Moreover, when
the statement is made in the context of a police-arranged lineup,
neither the witness nor even the police officers who arranged for the
identification may have been aware of possible subtle suggestive
factors that could have influenced it. Studies have demonstrated that
individuals' memories fade quickly. For an excellent summary of the
psychological data bearing on the reliability of eyewitness
identification testimony, see Brian L. Cutler & Steven D. Penrod,
Mistaken Identifications: The Eyewitness, Psychology, and the Law
(1995). Thus, the argument for the admission of prior identifications is
strongest with respect to identifications made soon after the
perception of the person identified. Would it be desirable to amend
subsection (C) to provide that the statement of identification must be
made “soon” or “shortly” after the witness perceived the person
identified?
c. Constitutional Dimension
In addition to the hearsay issue, there is a substantial body of case
law that focuses on whether a prior identification violated a criminal
defendant's constitutional right to counsel or due process of law. See,
e.g., Gilbert v. California, 388 U.S. 263 (1967) (criminal defendant
has right to counsel at postindictment confrontation between witness
and defendant; denial of right to counsel requires exclusion of pretrial
identification evidence); Manson v. Brathwaite, 432 U.S. 98, 105-06
(1977) (due process requires exclusion of suggestive pretrial
identification in the presence of substantial likelihood of
misidentification). Equally important, when police carry out an
intentionally suggestive identification procedure that prompts the
witness to identify the defendant as a perpetrator of the alleged
crime, admitting the witness's identifying

499

statement into evidence would violate due process. Foster v.

California, 394 U.S. 440, 442-443 (1969). On the other hand, no due
process violation is present when the police mishandle a lineup or
other identification process by making it suggestive unintentionally
and in good faith. Perry v. New Hampshire, 132 S. Ct. 716 (2012).

KEY POINTS
1. The prior out-of-court statement of a testifying witness may be
admitted for the truth of the matter it asserts if it is (A)
inconsistent with the witness's testimony and was given in a
prior proceeding subject to penalties for perjury; (B) consistent
with the witness's testimony and rebuts a charge of recent
fabrication or improper influence or motive or responds to a
different attack on the witness's credibility; or (C) a statement
of identification of a person, made after perceiving that person.
2. The judge must be persuaded, pursuant to FRE 104(a), that
the foundational requirements are satisfied prior to admitting
any such statement.
3. The witness must be subject to cross-examination concerning
the statement; the witness need not necessarily remember the
underlying event or making the prior statement.

PROBLEMS
8.32. Esther Kingsley and Robert Roby were riding in a car that
crossed the median strip on a two-lane highway and collided
with a pickup truck driven by William Burditt. Esther was killed
in the crash and the executor of her estate is suing Robert for
wrongful death, alleging that he was driving the car and that his
negligence caused the accident. Robert claims that Esther was
driving and that the accident was her fault.
(a) Several hours after the accident, William Burditt told a
state trooper that “a man was driving.” Two days later
Burditt told a friend “the woman was not driving the car.”
Called by the plaintiff executor to testify at trial, Burditt
testifies “I have a picture in my mind that the woman was
behind the wheel. It seems when we hit, she was on the
driver's side.” Can the plaintiff use Burditt's prior
statements to prove that Robert was driving? To impeach
Burditt's credibility? If there is no other evidence that
Robert was driving, will the judge grant a directed verdict
against the plaintiff?
(b) What if Burditt's deposition had been taken by plaintiff
and Burditt said “a man was driving”—admissible? For
what purpose?
(c) What if there was no deposition but Burditt had previously
submitted a sworn affidavit that said “a man was driving”
in support of plaintiff's motion for summary judgment
against Robert? Admissible? For what purpose?
(d) Assume that the statements in (a) are admitted to
impeach Burditt. Plaintiff

500

also asks Burditt: “Isn't it true that Robert paid you for the
extensive damage done to your truck in the collision, just
a week before this trial?” Burditt answers “Yes.”
Relevant? Admissible?
(e) Assume that the evidence in (d) is admitted. Robert then
offers the testimony of Burditt's coworker that, on the day
 before the trial started, Burditt said: “You know, I think that
it was the woman driving.” Relevant? Admissible?
(f) Assume that two men—Edwin and Robert—were in the
car that collided with Burditt's truck. Edwin was killed in
the crash and his estate sues Robert for wrongful death,
claiming that Robert was driving. Robert says that Edwin
was driving. Plaintiff offers testimony that Burditt said to a
state trooper, just after the accident, “that man there was
driving” and then pointed at Robert. Admissible? For what
purpose?
(g) Same facts as (f). What if, several days after the accident,
Burditt said to a friend, “It was the man with black hair and
the blue jacket who was driving.” (Robert has black hair
and was wearing a blue jacket on the day of the
accident.)
8.3. Return to Problem 3.3, United States v. Ray, at page 149,
supra. At Ray's trial, in January of 2016, Beth Barker testifies
for the prosecution on direct examination that she remembers
June Jacobs giving her the March 14, 2015 memorandum
written by the outside auditor Andrews. She further testifies that
she placed it in Ray's “inbox” on that same day, March 14, and
then removed it the next day, March 15, from his “out box.” She
also remembers that Ray's initials were on the memorandum.
(a) On cross-examination, defense counsel asks the
following:
Q: Ms. Barker, you testified at a preliminary hearing on December
1, 2015, in this case, did you not?
A: Yes.
Q: And I asked you some questions at that time, do you recall
that?
A: Yes.
Q: Isn't it true that I asked you the following questions, and you
gave the following answers: [reading from transcript]
“Q: When did June Jacobs give you the auditor's memo?
A: I believe it was March 18.”
 Is Barker's answer from the preliminary hearing transcript
admissible, over the prosecutor's hearsay objection, to prove
that June Jacobs delivered the auditors' memo to Ray's office
on March 18?
(b) Defense counsel next offers Exhibit B into evidence, an
authenticated written affidavit signed by Beth Barker
dated December 19, 2015, which states (in pertinent
part):
I, Beth Barker, declare:
On March 18, 2015, June Jacobs personally handed me
a copy of Andrews' auditor's memo and said “Mr. Ray
needs to see this.” I remember this incident because it
was unusual for Ms. Jacobs to deliver a document for Mr.
Ray personally.

501

I declare under penalty of perjury that the foregoing is true and

correct to the best of my knowledge.
[signed] Beth Barker
Is this affidavit admissible, over the prosecutor's hearsay
objection, to prove that June Jacobs delivered the auditors'
memo to Ray's office on March 18?
(c) On cross examination, defense counsel asks Barker the
following questions:
Q: Ms. Barker, on January 20, 2016, you were arrested for
embezzling $250 from a petty cash fund, while employed at
Rundown?
A: Yes.
Q: And that alleged embezzlement occurred on January 5, 2016,
isn't that so?
A: I believe so.
Q: Ms. Barker, isn't it a fact that you made up the testimony you
gave today about removing the March 14, 2015, auditor's
memorandum, with Mr. Ray's initials on it, from Mr. Ray's out
 box on March 15, 2015 in order to get a deal from the
prosecutor on your embezzlement charge?
A: No, that's not true.
Defense Counsel: I have no further questions.
The prosecutor then calls an FBI agent who will testify that in
June of 2015 he interviewed Beth Barker and she told him that
she remembered removing a memorandum dated March 14,
2015, written by the outside auditor Andrews, from Mr. Ray's
out box on March 15, 2015. She also told the agent that it had
Mr. Ray's initials on it, and that she filed it. Is this testimony
admissible over defense counsel's hearsay objection?
8.34. Ed Larson is being prosecuted for armed robbery of a bank.
Terry Davis, an alleged accomplice, pleaded guilty to the same
charge and is currently serving a 20-year sentence. Davis
admitted that he was involved in the robbery, but he claimed
that he could not remember whether he had a partner or, if he
did have one, who the partner might have been. He also
claimed not to remember ever having made a statement to
anyone about having a partner. To prove that Larson
committed the robbery with Davis the prosecutor offers (a) a
transcript of Davis's grand jury testimony describing Larson's
participation in the robbery and (b) the testimony of a police
officer to the effect that following Davis's arrest several days
after the robbery, he confessed to the crime and named Larson
as his accomplice. The defendant has objected to both pieces
of evidence. What result?
8.35. Larry Emerson is being tried for arson. The government's key
witness, Alice Hastings, testified under a grant of immunity that
she had cooperated with Larry in planning the arson, but then
had withdrawn from the scheme. On cross-examination,
defense counsel inquired about promises made to Hastings in
return for her testimony and suggested that she was testifying
against Emerson in order to shift responsibility for the crime
from herself. The government then calls a police officer who
was present at Hastings's arrest to testify that Hastings
502

voluntarily began talking to the police; that she did not ask any
questions about what benefits she might obtain; that another
officer informed Hastings that her cooperation would be
brought to the attention of the District Attorney; and that before
any other statements about cooperation were made, Hastings
identified Larry Emerson as the arsonist. Is this testimony
admissible under FRE 801(d)(1)(B)?
8.36. A fight broke out between Defendant and Joe Williams in a
nightclub. Williams lay collapsed on the floor and Defendant
was ejected from the club. It is alleged that Defendant returned
with a gun and shot Williams. Although the alleged murder
weapon was never recovered, Defendant is charged in federal
court with the crime of unlawful possession of a firearm and
ammunition by a convicted felon. At trial, Holmes, a friend of
Williams, testified that he witnessed the fight and the shooting
committed by Defendant. Williams's girlfriend arrived at the
club after the shooting, having been called by her nephew and
told that Williams was lying on the floor after the fight. The
girlfriend testifies that when she arrived at the club 30 minutes
later, she met Holmes in the parking lot. She further testifies:
I asked Holmes, “What happened, what happened?” Holmes said, “He shot him.” I
said, “Who shot him?” Holmes said, “Defendant shot him.”
Was it error for the trial court to admit this testimony under FRE 801(d)(1)(C)?

6. Explanation of FRE 801(d)(2): Party Admissions in General

Each subsection of FRE 801(d)(2) defines a specific type of out-of-
court statement made by a declarant who is either a party in the case
against whom the statement is being offered or has a specified
affiliation with such a party. The foundational requirements of
subsections (A)-(E) focus primarily on the relationship between the
party and the declarant. The single common requirement for all the
subsections is that the proponent must offer the declarant's statement
against the opposing party. It is the proponent's choice whether or not
to use an opposing party's own statements, or statements of affiliates,
to prove the case against that party at trial.
Before we discuss each FRE 801(d)(2) subsection in detail, you
should read through them all again briefly:
(d) Statements That Are Not Hearsay. A statement that meets the following conditions
is not hearsay:
(2) An Opposing Party's Statement. The statement is offered against an opposing
party and:
(A) was made by the party in an individual or representative capacity;
(B) is one the party manifested that it adopted or believed to be true;
(C) was made by a person whom the party authorized to make a statement on
the subject;
(D) was made by the party's agent or employee on a matter within the scope of
that relationship and while it existed; or

503
(E) was made by the party's co-conspirator during and in furtherance of the
conspiracy.
The statement must be considered but does not by itself establish the declarant's
authority under (C); the existence or scope of the relationship under (D); or the
existence of the conspiracy or participation in it under (E).
We will use the following example to illustrate subsections (A)-(E):
Suppose that Day and Moore are partners in a business. They are being tried jointly for
preparing and filing a false partnership income tax return in 2014. The government's
evidence tends to show that Day and Moore diverted income from the partnership to
themselves by cashing checks made out to the partnership. The government claims that
Day and Moore did not account for the proceeds in either the partnership or their own
income tax returns. At trial, Moore testifies in his own defense and denies all knowledge
of and participation in such a scheme. The government then seeks to introduce against
both Day and Moore a properly authenticated tape recording of a statement that Moore
made, unbeknownst to Day, in an interview with an Internal Revenue Service agent who
was investigating the 2014 partnership return. Moore's recorded statement implicates
both Day and Moore in the income diversion and tax evasion scheme. It was not made
under oath, however, and would not be admissible as a prior inconsistent statement
under FRE 801(d)(1)(A).
Would Moore's recorded statement be admissible against Moore
himself under FRE 801(d)(2)(A)? Would it be admissible against
Day? Would the statement be admissible against Day under FRE
801(d)(2)(B), (C), (D), or (E)? If you can fit the statement under (A)
against Moore, or under (B), (C), (D), or (E) against Day, then
although it is offered for the truth of the matter it asserts—that Moore
and Day both participated in the illegal scheme to file a false tax
return—it will be exempt from the definition of hearsay and will be
admissible as substantive evidence for its truth.

7. Explanation of FRE 801(d)(2)(A): A Party's Own Statements

a. Preliminary Factfinding
The foundational requirements for a party admission are:

the statement is made by a party; and

the statement is offered against that party.

This is perhaps the simplest foundation of all the hearsay exemptions

and exceptions. Moore's recorded statement easily satisfies it, so
long as it is offered against Moore himself. Any out-of-court statement
made in any context by any party (whether plaintiff or defendant) to
any action (whether civil or criminal) may be admissible—unless
excludable on other ground—when offered against that party.
The party's statement must of course be relevant and not subject to
exclusion under other rules of evidence. Guilty pleas, depositions,
personal documents, and prepared charts, as well as conversational
oral statements, have all been admitted for

504

their truth under FRE 801(d)(2)(A). Trull v. Volkswagen of America,

Inc., 187 F.3d 88, 98 (1st Cir. 1999) (plaintiffs' diagram from a prior
lawsuit, showing a different version of the collision in question, was
admitted against them in their suit against the manufacturer of their
van). If a party's nonverbal conduct is hearsay under FRE 801(a)
because it is intended as an assertion, it is a statement for the
purposes of this or any other hearsay exception or exemption. A nod
of assent in response to an incriminating question, for example,
would be admissible as an admission against a defendant in a
subsequent prosecution.
If a proponent offers a Rule 801(d)(2)(A) statement against a party
at trial, the proponent must think that the statement is adverse to the
interest of that party. For this reason, party admissions are sometimes
referred to as “admissions against interest.” We strongly urge you to
avoid the phrase “admission against interest.” First, the foundational
requirements for the admissions exemption do not require that the
statement be “against interest” when it is made, nor that the person
making the statement think that it is. Sometimes a party's statement
attains its “against interest” significance long after it is made. Second,
as you will see, there is a completely distinct exception to the hearsay
rule for “declarations against interest.” Getting used to referring to
party admissions simply as admissions should help to avoid
confusion between declarations against interest and admissions.
b. Individual and Representative Capacity
FRE 801(d)(2)(A) controls the admission of statements made by an
individual person that are offered against that same individual person
at trial. But a person can speak, and can be a party, either as an
individual or as a representative—a trustee, executor, or guardian—of
some other entity or individual. The rule provides for the admission of
statements against the individual person even if those statements
were made when the individual was speaking as a representative
outside of court. In re Special Federal Grand Jury Empanelled Oct.
31, 1985 Impounded, 819 F.2d 56, 59 (3d Cir. 1987) (statements
made to a grand jury solely in the declarant's capacity as an agent for
a corporation is admissible against him as an individual). And
statements made outside of court by a person, whether as an
individual or as a representative, will be admissible against that
person if he appears as a party solely in a representative capacity.
Estate of Shafer v. Commissioner, 749 F.2d 1216, 1219 (6th Cir.
1984) (letter written by son of a decedent admissible against him as
coexecutor of his father's estate, whether it was written by the son as
an individual or in his capacity as executor). When an entity such as a
corporation is a party, the statements of its representatives can be
admitted against the entity under FRE 801(d)(2)(C) or (D), but not
pursuant to FRE 801(d)(2)(A), as we will discuss at pages 511-515,
infra.
c. Admissions, Personal Knowledge, and Lay Opinions
 The admissions exemption differs from other hearsay exemptions
and exceptions in two respects. First, there is no requirement that a
party admission be based on firsthand knowledge. This is in contrast
to all other hearsay exceptions and Rule 801(d)(1) statements. The
Advisory Committee Note to FRE 801(d)(2)(a) states that admissions
of a party-opponent are free from “the restrictive influences of the
opinion rule and the

505

rule requiring first hand knowledge . . . .” McCormick offers the

following justification for dispensing with the personal knowledge
requirement for a party's own admissions:
[T]he vast majority of admissions that become relevant in litigation concern some matter
of substantial importance to declarants upon which they would likely have informed
themselves. As a result, most admissions possess greater reliability than the general run
of hearsay, even when not based on firsthand observation. Moreover, the possibility is
substantial that the declarant may have significant information that the opponent cannot
prove. [McCormick on Evidence, Vol. 2 §255, at 183 (Kenneth S. Broun, ed., 6th ed.
2006).]
Do you find this justification convincing? Is there some other
justification for dispensing with the requirement? Would the
proponent of the admission find it easy to prove what a party
opponent knows about the facts of their dispute without using the
party's out-of-court statements?
Second, courts have tended to be liberal in admitting statements of
opinion if the evidence is an admission. Since the party against whom
an admission is offered can take the witness stand and explain the
basis for the opinion, suppressing the opinion rule in this context
seems reasonable. Combining freedom from the personal knowledge
requirement and from the opinion rule's limitations means that a
party's admissions may be based on hearsay statements of others, or
the party's inferences from circumstances.

8. FRE 801(d)(2)(A): Policies and Practical Applications

As you can see from the breadth of Rule 801(d)(2)(A), the justification
for its admissibility cannot rest on a claim of enhanced reliability.
There are no limitations in the rule concerning the content of the out-
of-court statement or the circumstances in which it was made. We
emphasize again that it need not have been “against interest” when
made. Instead, all five of the subsections of FRE 801(d)(2) are
justified by considerations relating to the adversarial system of trial
and to values of freedom of choice and personal responsibility in our
larger society. These considerations operate most powerfully as
justifications for the admissibility of a party's own statements under
subsection (A). A party confronted with his own out-of-court
statement has no plausible complaint about his inability to cross-
examine the declarant (himself). As we will see in succeeding
sections of this chapter, these justifications become less powerful as
the relationship between the party and the declarant becomes
weaker. Then circumstances that may increase the need for or the
reliability of the out-of-court statement are added to the foundational
requirements of each subsection.
a. The Opportunity to Cross-examine and Explain
Hearsay is excluded primarily because the opponent lacks the
opportunity to expose weaknesses in the declarant's narration,
sincerity, perception, and memory through cross-examination. As we
already mentioned, however, parties to an action cannot reasonably
complain about the lack of an opportunity for cross-examining
themselves. There is a viable alternative. If a party's hearsay
statement has been admitted against

506

him, he can take the stand in rebuttal and have a full opportunity to
explain any difficulties with the accuracy of the statement. In short, it
seems absurd for a party who is directly affected by the outcome in
the case, and who is sitting in the courtroom, to complain about not
being able to cross-examine herself. These observations hold true in
civil cases and, subject to Fifth Amendment concerns, to which we
now turn, in criminal cases as well.
b. Fifth Amendment Concerns
 When a criminal defendant's own admission is offered against him
as inculpatory evidence, it must be voluntary under the Fifth
Amendment. Miranda v. Arizona, 384 U.S. 436 (1966). This means
that government agents cannot elicit a confession by subjecting the
defendant to threats, extortion, and violence, or by carrying out a
custodial interrogation without first informing the defendant about his
right to remain silent, about the fact that anything he says might
subsequently be used as evidence against him in a court of law, and
about his right to be represented by his own attorney or a public
defender. Any such violation triggers the suppression of the
defendant's confession for being involuntary. Moreover, a defendant
cannot be convicted on the basis of her or his uncorroborated
confession. To secure the defendant's conviction, the prosecution
must produce some independent confirmation for the defendant's
self-incriminating statement. Opper v. United States, 348 U.S. 84, 89
(1954). These requirements substantially increase the reliability of
criminal defendants' confessions.
Criminal trials still differ from civil cases in one important respect for
purposes of party-admission evidence. While it is true that a criminal
defendant is as free as a civil litigant to testify and rebut any out-of-
court statement attributed to him, it is also true that he has the Fifth
Amendment right not to testify. Admitting a criminal defendant's
statement under FRE 801(d)(2)(A) thus puts some pressure on the
defendant to abandon that right. Any number of factors, however,
may make a defendant feel pressured to testify, and only some of
them raise constitutional problems. At one extreme, a direct threat of
punishment for refusing to testify would be regarded as a violation of
the Fifth Amendment right to remain silent. At the other extreme, the
defendant may feel pressure to testify simply because of the nature
or strength of the prosecutor's case, and this type of pressure raises
no constitutional problems. The right to silence means only that
defendants deciding not to testify should suffer no repercussions in
the form of punishment or inferences of guilt. In Hohfeldian terms, this
right is merely a “liberty” rather than a “claim right”: it does not
obligate the government to make it beneficial for defendants to
remain silent. The FRE 801(d)(2)(A) exemption therefore justifiably
applies to criminal defendants and not just to civil litigants.

9. Further Elaboration of FRE 801(d)(2)(A)

a. Preliminary Factfinding on the Identity of the Declarant
The foundational requirements for all hearsay exceptions and
exemptions are preliminary questions of fact subject to FRE 104, and
are typically for the judge to decide

507

pursuant to FRE 104(a). These requirements are imposed by

hearsay policy; they do not establish the relevance of the out-of-court
statement. But consider a case in which relevancy and hearsay policy
are determined by the same question of fact. Suppose that it is
alleged that the defendant started a fight with a coworker. The
defendant denies starting the fight. What if the coworker had
previously received an unsigned letter expressing great animosity
toward the coworker? The coworker claims that the defendant wrote
this letter and that the animosity is relevant to prove that defendant
started the fight. The defendant denies sending the letter and the
coworker offers it for its truth. Since the letter is hearsay, the coworker
offers it under FRE 801(d)(2)(A) against the defendant. Should FRE
104(a) or (b) control the judge's factfinding on whether the defendant
wrote the letter?
In this case, this same fact is necessary both to the relevance (and
authentication) of the letter under FRE 401 and to the admissibility of
the hearsay statement under FRE 801(d)(2)(A). FRE 104(b) governs
the relevance and the authentication questions; FRE 104(a) governs
the hearsay policy question. Which should control? The difference
between them would be that under FRE 104(b), the judge would have
to admit the letter with less foundational evidence—only evidence
sufficient to support a finding—that the defendant wrote it. Under FRE
104(a), the judge should admit the letter only if the judge is actually
persuaded by a preponderance of the evidence that the defendant
wrote it.
In this example, the letter can only be relevant and harmful to the
defendant if the defendant in fact wrote it and meant what he said. If
the defendant did not write the letter or intended it to be a prank, the
animosity it expresses could not rationally be used in a way that is
harmful to the defendant.
Arguably, since the Federal Rules of Evidence favor greater
admissibility of relevant evidence, it would seem that the question
should be decided under Rule 104(b) as a matter of relevance policy.
It would be much easier for the coworker to meet the FRE 104(b)
standard and to get the letter admitted than if FRE 104(a) were to
apply. Of course, the defendant can still deny being the author and
the jury will ultimately decide the question. The crucial point is that if
the jury finds that it was not written by the defendant, we are fairly
confident that the jury can disregard the letter as irrelevant. On the
other hand, if the hearsay policy were to tighten the conditions under
which hearsay statements become admissible, FRE 104(a) and its
preponderance requirement should trump FRE 104(b).
b. Admissibility of Party Admissions in Multiparty Cases: The Bruton Problem
In some cases, there are multiple plaintiffs or defendants. One
party's party admission is not admissible against anyone other than
the party who made the statement. The potential for improper use
against another party would be resolved under FRE 403. But in
criminal cases, there is a potential violation of the Confrontation
Clause.
In Bruton v. United States, 391 U.S. 123 (1968), Bruton and Evans
were tried jointly for armed robbery. Evans did not testify but was in
court. The prosecution introduced into evidence an earlier confession
by Evans that implicated both Evans

508

and Bruton. Since the confession was admissible as a party

admission only against Evans, the trial court instructed the jury that it
could consider the confession as evidence only against Evans.
Because Evans did not testify, Bruton could not cross-examine him.
The Supreme Court, relying in part on the probable inability of the jury
to limit its consideration of the confession to Evans, held that
introduction of the confession had violated Bruton's constitutional
entitlement to confrontation and due process. Hence, when a
defendant's out-of-court confession implicates his codefendant,
Bruton deems this spillover incurable by a FRE 105 limiting
instruction to the jury, as well as too prejudicial to the codefendant to
leave it to the trial judge's discretion under FRE 403. Based on these
assumptions, Bruton precludes the confession's admission unless the
confessor can be cross-examined.
Another way to accommodate the Bruton rule is to sever the trials of
the codefendants. This, however, is an expensive remedy and
prosecutors have sought other solutions. If all specific references to
the codefendant are redacted from the declarant-defendant's
statement, it may then be offered against the declarant-defendant
alone. Richardson v. Marsh, 481 U.S. 200 (1987). Confessions
redacted by substituting a single codefendant's name with blank
spaces or symbols have been held to be incriminating of the
codefendant and inadmissible under Bruton. Gray v. Maryland, 523
U.S. 185 (1998). Correspondingly, in United States v. Jass, 569 F.3d
47, 62 (2d Cir. 2009), the court disapproved the following redaction of
a codefendant's confession for being suggestive: “When I realized the
guard had pulled the alarm, I turned and said to another person,
'Look, other person, we have to get out of here.'” Substitution of
names with neutral pronouns such as “other guys” or “persons” has
been held not to incriminate specific codefendants when there are
several of them, and therefore not to violate Bruton. United States v.
Molina, 407 F.3d 511 (1st Cir. 2005); United States v. Taylor, 745 F.3d
15, 28-30 (2d Cir. 2014) (explaining that redaction will satisfy Bruton
when it prunes the names of actual people from the confessor's
statement and uses instead “another person,” “others,” “other people”
or similar non-suggestive terms that broaden the “choice of the
implied identity”). But in United States v. Lujan, 529 F. Supp. 2d 1315
(D.N.M. 2007), the court held that the sheer magnitude of the
incriminating statements (265 pages from two defendants other than
Lujan), the difficulty of the redaction in statements referring to all
three defendants, the risk of distorting certain statements that might
be exculpatory to one defendant, and the confusion resulting from
replacing names with pronouns, compelled the findings that redaction
would not cure the confrontation problem and that the trials must
consequently be severed.

10. Explanation of FRE 801(d)(2)(B): Adoptive Admissions

a. Preliminary Factfinding
The foundational requirements for an adoptive admission are:

a statement has been made;

the party has done something to manifest adoption of the
statement or belief in its truth; and
the statement is offered against the party.

509

Under FRE 801(d)(2)(B), there is no limitation on who may make the

statement that is subsequently offered against a party. It is thus not
an exemption based on a relationship between the declarant and the
party. Rather, it is based on the party's own communicative conduct.
In the false partnership tax return example, for the government to
use subsection (B) to secure the admission of Moore's recorded
statement for its truth against Day, it would first have to prove that
Day had heard Moore's statement or knew of it, and that he appeared
to adopt it or to accept it as true. If the recording had been played to
Day and he nodded “yes,” or said, “That's right,” the government
could argue that these words satisfied the foundational requirements
of subsection (B).
A party may manifest adoption of a statement in any number of
ways, including through words, conduct, or silence. United States v.
Jinadu, 98 F.3d 239 (6th Cir. 1996) (defendant answered “yes” during
interrogation to question “you know that's China White heroin”);
United States v. Pulido-Jacobo, 377 F.3d 1124, 1132 (10th Cir. 2004)
(to prove truth of contents of a document, mere possession does not
constitute adoption but “surrounding circumstances can tie the
possessor and the document together in a meaningful way,” e.g., by
accepting the document and acting upon it); United States v. Joshi,
896 F.2d 1303, 1311 (11th Cir. 1990) (party nodded head after
statement by another, and made a sound of agreement); Wagstaff v.
Protective Apparel Corp., 760 F.2d 1074, 1078 (10th Cir. 1985) (party
used for its own advantage a written statement prepared by another);
Pillsbury Co. v. Cleaver-Brooks Div. of Aqua-Chem, Inc., 646 F.2d
1216, 1218 (8th Cir. 1981) (party signed statement prepared by
another); United States v. Weaver, 565 F.2d 129, 135 (8th Cir. 1977)
(party repeated statement of another); United States v. Safavian, 435
F. Supp. 2d 36, 43 (D.D.C. 2006) (party's words “manifested an
adoption or belief” in the truth of the statements of other people as he
forwarded their e-mails). If ambiguous, the meaning of a party's
behavior is ultimately for the jury to assess after determination of this
preliminary question by the judge. State v. Carlson, 808 P.2d 1002
(Or. 1991). However, courts appear to disagree as to whether these
preliminary questions are decided pursuant to FRE 104(a) or 104(b).
Id. at 1006-1009 (holding that Rule 104(a) applies after a thorough
discussion of the precedent and policy).
b. Justification for the Admissibility of Adoptive Admissions
If a party has done something to manifest adoption or belief in the
truth of an uncross-examined statement made by another, an
inference can be drawn that the party knows that the contents of the
statement are accurate, or thinks that the person speaking is reliable
and knowledgeable. The party can still dispute these inferences, and
the statement's accuracy, at trial. The party can explain why the
statement was unreliable and why, at the time, the party did not
repudiate the statement. If the party in fact knew nothing about what
the statement asserted, then the party went along with it presumably
to get some advantage, or induce some reliance. This makes it fair to
admit the statement against the party at trial.

510
 c. Adoption by Silence
A common type of adoptive admission is the admission by silence.
In United States v. Duval, 496 F.3d 64 (1st Cir. 2007), Duval was
convicted of possession of a firearm by a convicted felon. To prove
possession, the prosecution offered the testimony of an undercover
informant. The informant testified at trial that while Duval and his
companion were staying at the informant's apartment, the companion
stated that he and Duval wanted to sell firearms that were in their
possession. The prosecution claimed that the companion's
incriminating statement implicated Duval because he was present
when the statement was made but did not attempt to disassociate
himself from it. Another good illustration is United States v. Hoosier,
542 F.2d 687, 687-688 (6th Cir. 1976). In this case, the Sixth Circuit
approved the admission of testimony describing the statement made
to the witness by the robbery defendant's girlfriend while the
defendant was present: “That ain't nothing, you should have seen the
[sacks of] money we had in the hotel room.” The Circuit reasoned that
“[u]nder the total circumstances, we believe that probable human
behavior would have been for appellant promptly to deny his girl
friend's statement if it had not been true. . . .”
One problem with using nonresponsiveness or silence as the basis
for an inference of a subsection (B) admission is the ambiguity of the
party's conduct. What does it mean if someone fails to respond to
another person's statement? To a letter? Or to the calculation of a
bill? These ambiguities are resolved by preliminary factfinding on the
question of whether the party's conduct “manifests” adoption or belief.
“[T]he burden is on the proponent to convince the judge [under FRE
104(a)] that in the circumstances . . . a failure to respond is so
unnatural that it supports the inference that the party acquiesced in
the statement.” Weston-Smith v. Cooley Dickinson Hospital, Inc., 282
F.3d 60, 67 (1st Cir. 2002). The judge considers the nature of the
statement, the audience, and the surrounding circumstances. For
example, in Weston-Smith, failure to respond to an accusatory
statement made at a social occasion, when the party did not have
information necessary to assess the accusation's truthfulness, was
held not to be an adoptive admission. Id. at 68. The court's decision
calls for an evaluation of probable human behavior. The party who
opposes the admissibility of the statement can of course offer
evidence on the preliminary fact questions as part of the judge's
factfinding process. This evidence may be resubmitted to the jury to
reduce the probative value of the statement, if it is admitted.
In United States v. Duval, supra, Duval contended that the facts
described were insufficient to prove that he had actually heard the
companion's statement, which was necessary to the prosecution's
showing under FRE 801(d)(2)(B) that he could have adopted the
statement or believed in its truth. Duval offered the testimony of a
fourth person present who testified that he had not heard the
statement himself. The appellate court upheld the finding of the
district judge that, based on testimony that the conversation took
place in a small room, and that Duval was in that room, the
foundation was adequate to admit the companion's statement. This
decision, alas, should have been made under FRE 104(a) and its
preponderance requirement. Hearing the companion's statement
amounted to a preliminary fact pursuant to hearsay policy rather than
relevancy (indeed, evidence of the companion's statement would be
relevant and harmful to Duval whether he heard it or not).

511

11. Explanation of FRE 801(d)(2)(C) and (D): Admissions by

Agents, Servants, and Employees
a. Preliminary Factfinding
The foundational requirements for authorized admissions under
subsection (C) are:

the statement is on a subject;

the statement was made by person whom a party authorized to
make a statement on that subject; and
the statement is offered against that party.

In the example of the false partnership tax return, Moore's recorded

statement could only be admitted against Day under subsection (C) if
the government had evidence showing that Day had given Moore
authority to make the recorded statement on Day's behalf. FRE
801(d)(2) also states that the contents of the statement itself may be
used to prove the issue of authority (if Moore stated on the tape that
Day had asked him to speak with the government about their
scheme, for example) but other independent evidence of authority (a
“corroboration”) is also required. The foundational requirements for
admissions by agents and employees under subsection (D) focus on
the existence of the agency or employee relationship and do not
require any showing of authority, which is presupposed:

the declarant is an agent or employee of a party;

the statement was made while this relationship existed;
the statement is on a matter within the scope of the agency or
employment relationship; and
the statement is offered against that party.

Under subsection (D), Moore's statement might be admitted against

Day if a principal-agent or employer-employee relationship existed
between them. Partners are treated as agents of the partnership; but
are partners agents of each other? An agency relationship is typically
defined by control; that is, the principal having “the right to control the
manner and method in which the work is carried out by the alleged
agent.” Chemtool, Inc. v. Lubrication Technologies, Inc., 148 F.3d
742, 745 (7th Cir. 1998). But authorization, express or implied, will do,
too: United States v. Saks, 964 F.2d 1514, 1523 (5th Cir. 1992) (The
general rule is that the declarations of one partner about the
partnership's affairs are admissible against the other partners.).
In addition, the proponent would need to prove that the statement
was made during the relationship and that it was on a matter within
Moore's duties as an agent of Day. The contents of the statement
itself may be used to prove the fact of agency and the scope thereof,
but the statement alone is not sufficient under FRE 801(d)(2). Gomez
v. Rodriguez, 344 F.3d 103, 117 (1st Cir. 2003) (statement by mayor's
wife that she was interviewing employment applicants for him and
applying “political” criteria, held inadmissible as statement of an
agent, since no independent evidence in the record supported the
existence of the agency relationship).

512

Statements by Attorneys. Many of the cases involving authorized

admissions offered under subsection (C) concern statements made
by attorneys on behalf of their clients. When an attorney represents a
party in litigation, statements of facts made in formal litigation
documents—pleadings, answers to interrogatories, responses to
requests for documents, briefs—and in opening and closing
statements at trial may all be found to be within the scope of the
attorney's authority even though there is no specific grant of authority
to make the particular statement. In other settings, the scope of an
attorney's representation of the party, and the specific tasks
undertaken by the attorney or other agent, create implied authority to
speak on the party's behalf. Whether or not such authority exists is a
preliminary question for the judge to decide under FRE 104(a).
Other Specifically Authorized Statements. Some agents would
ordinarily be viewed as having authority from a party to make
statements that are necessary to the performance of their duties; for
example, minutes taken by the secretary at a school board would be
admissible as authorized statements under FRE 801(d)(2)(C) if
offered against the board. Other employees of a party may be given
specific authority to speak on a one-time basis, or to speak on a topic
not within their normal relationship with the party. Subsection (C) may
also apply to authorized statements made by persons in relationships
with the party that are not within the definition of agency, such as
employer-independent contractor, or parent-child.
Statements Made During the Relationship on a Matter Within
the Scope of an Agent's Employment. Subsection (D) does not
require that the declarant have specific authority to speak. Nor does it
require that the statement be made on the job, that is, within the
scope of the agent's duties. Rather, subsection (D) focuses on
subject matter: The statement must be on a matter within the scope
of the employment or agency relationship.
Prior to its restyling, subsection (D) required that the statement
“concern” a matter within the scope of the employment or agency.
The term “concern” was interpreted as meaning the statement must
“relate to” the scope of employment or agency, or the subject matter
of the statement must “match” the subject matter of the employee's or
agent's job description. Because the restyling was not intended to
change the substance of any rule, we assume that the term “on” will
be given the same meaning as “concern.”
Typical cases have involved agents speaking about their own job
performance or about events that happened on the job that would be
of legitimate concern to the speaker. For example, statements by
superiors to company employees concerning the employee's standing
in the company may be within subsection (D), depending on the
superior's job, duties, and role in relation to the employee. In Carter v.
University of Toledo, 349 F.3d 269, 271-272 (6th Cir. 2002), the
plaintiff, an African American professor, sued the defendant for failure
to renew her contract because of her race. The plaintiff sought to
testify that the University's Vice-Provost had said to her that the Dean
who had refused the renewal was “trying to whitewash the college of
education” and “was trying to get rid of black professors.” The
appellate court held that while the

513

Vice-Provost was not a “direct decisionmaker” concerning the

plaintiff's employment, he did have “oversight of the affirmative action
process at the University” and thus his statements concerned a
matter within his authority. On the other hand, statements have been
excluded as not concerning a matter within the scope of the agency
when the declarant acted as a bystander eyewitness who describes
an event perceived at work that has no relation to her job. Wilkinson
v. Carnival Cruise Lines, 920 F.2d 1560 (11th Cir. 1991) (statement by
cabin steward about previous problems with sliding glass door in
ship's swimming pool area did not concern a matter within scope of
steward's employment since his job involved no responsibilities in the
engineering department or for the swimming pool). Since the contents
of the hearsay statement alone are not sufficient to prove the scope
of authority, the proponent must present corroborating evidence.
Mercado v. City of Orlando, 407 F.3d 1152, 1156 (11th Cir. 2005).
The proponent of a statement under subsection (D) must also
provide evidence that the statement was made while the principal-
agent relationship existed. This does not mean that the statement
must be made “on the job” or during the performance of duties. Rule
801(d)(2)(D) abandons the common law requirement that agents
must be acting within the scope of their authority when they make the
statement. The exemption thus includes statements made away from
the workplace to third parties uninvolved in the speaker's work. Kraus
v. Sobel Corrugated Containers, Inc., 915 F.2d 227, 230-231 (6th Cir.
1990) (statement praising job performance of plaintiff shortly before
her termination, made by a department manager during holiday
dinner at the home of the plaintiff, would be admissible against the
defendant in an age discrimination case).
Statements of employees are admitted not only against employer
corporations but also against their corporate supervisors if direct
supervision and control is proved. United States v. Agne, 214 F.3d 47,
55 (1st Cir. 2000) (statements admissible against the president of a
corporation under FRE 801(d)(2)(D), because evidence showed that
the declarant, an employee of the corporation's wholly-owned
company, was directly responsible to the president and often acted
for him).
b. Justification for the Admissibility of Statements Under FRE 801(d)(2)(C) and (D):
Necessity, Fairness, and Reliability
Under both subsections (C) and (D), there is no guarantee that the
declarant will be available to testify at trial. Thus, the principal
rationale for admitting statements under subsections (A) and (B)—
that the party can choose to explain the statement—may not apply. If
the declarant is out of the country or otherwise unavailable, and the
party had little or no knowledge of the statement when made, the
justification that cross-examination is unnecessary because the party
can explain the declarant's statement seems particularly weak.
Instead, other reasons justify these exemptions (and other
exceptions) to the hearsay rule: necessity, fairness, and reliability.
Necessity stems from the fact that individuals, corporations, and other
institutional entities conduct their affairs through authorized
representatives, agents, and employees. These persons constitute a
primary source of information about corporate activities. Such
information is necessary

514

to impose liability on corporate and institutional entities. And, as a

matter of substantive law, individual and corporate or institutional
parties are legally responsible for the activities of their authorized
representatives, employees, and agents. It is probably essential for
the proper functioning of this liability scheme for these declarants'
statements to be admissible against principals and employers.
Permitting the use of hearsay statements by these representatives,
agents and employees can also be justified on grounds of fairness. If
proponents cannot use this hearsay, they would either have to call
the declarants as hostile witnesses or forgo the information altogether
if the declarant has disappeared. Parties gain advantages by being
able to conduct their business affairs through their representatives,
agents, and employees. Moreover, third parties rely on statements of
these people when doing business with the principal. The advantages
obtained and the reliance incurred make it seem fair to place some
burden of accountability for such out-of-court statements onto the
principal. When an agent's hearsay is admitted under subsection (D),
the principal is not irrevocably bound by it but does bear the burden
of contesting its reliability, if the principal does not want the jury to use
it. While it may be difficult for the principal to obtain the information
necessary to explore weaknesses in the declarant's statement, the
principal is probably better able to do so, and to do so more
efficiently, than the proponent of the statement.
 In addition, the foundational requirements of FRE 801(d)(2)(C) and
(D) generate some inferences about the reliability of the declarants'
testimonial qualities. To state the strongest case, if a statement is
authorized, it may be reasonable to infer that the principal selected a
trustworthy and reliable spokesperson. Second, if a statement is
authorized or is about a matter central to the activities of the agent,
the declarant may have a solid basis for making the statement, and if
central, the statement would also be made carefully and accurately.
Third, if the declarant is an agent at the time of the statement, it may
be inferred that the declarant is loyal to the interests of the principal
and would not lie to injure the principal and risk termination.
c. Personal Knowledge and Lay Opinions
Many courts dispense with the personal knowledge requirement
and the lay opinion rule under FRE 801(C) and (D) as well as (A) and
(B). It is thus possible to admit a representative's or agent's
conclusory statement that is based only on hearsay and rumor. This
puts the principal under a heavy burden of disproving the reliability of
the statement. Abandoning the personal knowledge requirement for a
party's own admissions under subsection (A) may be justified
because parties can disprove their own out-of-court statements by
establishing their own lack of firsthand knowledge. But the principal
may not be so easily able to show lack of firsthand knowledge in an
employee's statement, especially in a far-flung corporate context and
particularly if the employee is not available. Again, necessity and
fairness must justify abandoning the personal knowledge
requirement. Abandoning the requirement means that more hearsay
will be admitted and that corporate parties will bear the burden of
attacking its reliability and suffer the consequences of being unable to
do so. Do you think that this result strikes the proper balance
between necessity and fairness?

515
d. Admissions by Government Employees
 When can statements made by government employees be offered
against the government in civil or criminal cases? Some courts
adhere to the traditional common law position that the answer is
never, based on the rationale that no individual can bind the
sovereign. Courts adhere to this principle in criminal cases. United
States v. Evans, 1990 WL 32581 (6th Cir. 1990) (excluding testimony
about an out-of-court statement made by the assistant U.S. Attorney
on the case to the effect that Evans did not have the requisite intent
to be guilty of the crime charged); United States v. Yildiz, 355 F.3d 80,
82 (2d Cir. 2004) (out-of-court statements of a government informant
are not admissible in a criminal trial under FRE 801(d)(2)(D)). But
some courts have admitted statements of prosecutors made in court
and in pleadings. United States v. Bakshinian, 65 F. Supp. 2d 1104,
1106 (C.D. Cal. 1999) (prosecutors have the power to bind the
sovereign and are not disinterested in the outcome).
In civil cases, government manuals, sworn affidavits submitted to a
judge, depositions and prior testimony given by government
employees have been admitted under subsection (D). Timber
Products Co. v. United States, 2010 U.S. Claims LEXIS 5 (Fed. Cl.
2010) (prior testimony by a litigation coordinator for the Forest
Service concerning the Service's decisionmaking process admissible
against the government under (D) in a suit for breach of contract by
the Service). In C & H Commercial Contractors v. United States, 35
Fed. Cl. 246, 256 (1996), a highly relevant memorandum by a
government contracting officer that recited damaging representations
made by government officials to a private contractor was admitted
under subsection (D) without hesitation.

12. Explanation of FRE 801(d)(2)(E): Co-conspirators'

Admissions
a. Preliminary Factfinding
The foundational requirements for coconspirators' admissions are:

the declarant and the party against whom the statement is

offered were both members of the same conspiracy;
 the statement was made during the conspiracy; and
the statement was made in furtherance of the conspiracy.

The typical coconspirator statement is offered by the government

against a criminal defendant to prove that defendant's criminal
conduct. The recorded statement by Moore in the false partnership
tax return hypothetical would not be admissible against Day under
subsection (E), even if the government had evidence that Moore and
Day were co-conspirators. Statements made to tax investigators,
after the tax return has been filed, would not be considered to be
made during or in furtherance of a conspiracy.
Consider also the following example, which is a typical situation in
which the government seeks to use subsection (E):

516

A government informer has infiltrated a drug-selling ring. He speaks

and works only with a few people involved in the ring, and never sees
or talks to the boss. The people he deals with, however, make many
statements about the boss, such as “he gets the best stuff” or “he
sold this for $100 per gram.” These out-of-court statements, if true,
are evidence of the boss's drug-selling activities.
If the boss is charged with selling drugs and with conspiracy to sell
drugs, may the informant testify that the out-of-court statements
about the boss were made by the various “small fry” in the drug ring?
Proof of Comembership. First, the proponent of a co-conspirator's
statement under FRE 801(d)(2)(E) must prove that a conspiracy
existed and that both the declarant (the “small fry”) and the party (the
boss) were its members. Membership in a conspiracy requires a
meeting of the minds to join an enterprise with others with the aim of
accomplishing a specific criminal purpose, sometimes phrased as
“specific intent to further a common objective . . . and knowing and
voluntary participation.” The conspirators do not have to have contact
with, or ever know, all of the other conspirators, but “[n]o one can join
a conspiracy without knowledge of its existence . . . [and] the aim to
forward or assist” it. United States v. Garcia-Torres, 280 F.3d 1, 4 (1st
Cir. 2002). A conspiracy can be “a joint venture for an illegal purpose,
or for a legal purpose using illegal means.” United States v. Gil, 604
F.2d 546, 549 (7th Cir. 1979). There does not have to be a formal
charge of conspiracy for the co-conspirators' statements exception to
apply. Indeed, the exception is not limited to use in criminal
prosecutions. As a practical matter, however, the exception is most
frequently invoked by prosecutors in criminal cases. Our discussion
here reflects this common usage.
During the Course of the Conspiracy. Statements made to the
government informant in the drug ring example will satisfy this
requirement if the conspiracy was ongoing when they were made.
Statements made prior to a defendant's joining the conspiracy may
not be used to prove the defendant's participation, but may be
admissible to show the nature of the illegal enterprise and its
preparations. United States v. Segura-Gallegos, 41 F.3d 1266 (9th
Cir. 1994). And statements about events that occurred prior to the
defendant's joining a conspiracy are admissible so long as these
events were part of a “single, overarching” conspiracy and not
multiple, independent conspiracies. United States v. Handlin, 366
F.3d 584, 591 (7th Cir. 2004). A defendant must affirmatively
withdraw from a conspiracy for statements of co-conspirators no
longer to be admissible against him. United States v. Robinson, 390
F.3d 853, 882 (6th Cir. 2004) (arrest or incarceration does not qualify
as affirmative withdrawal).
The principal issue with respect to the during requirement is
whether it extends to statements made in the so-called concealment
phase of the conspiracy, after the objectives of the conspiracy have
been either met or thwarted. If the conspiracy is terminated, it is
usually by arrest or failure. United States v. Osorio-Soto, 139 F.3d
913 (10th Cir. 1998) (DEA's seizure of illegal drugs ended the
conspiracy because it was no longer possible to achieve its
objectives). If statements made during a police

517
 investigation or after an arrest cast blame on others, perhaps the
declarant is lying in order to shift the blame away from him- or herself.
There is a greater likelihood that each co-conspirator will be primarily
concerned with self-protection. The majority position is that
statements made during this phase are not within the scope of the
exemption, as was true regarding Moore's recorded statement to the
tax investigator. Osorio-Soto, id. (statements made to conceal
criminal conduct after the conspiracy's objectives have either failed or
been achieved are not admissible under the co-conspirator
exception).
But if some activities of the conspiracy are still ongoing, and can be
covered up, statements in furtherance of those concealment activities
may be admissible. United States v. Gajo, 290 F.3d 922, 928 (7th Cir.
2002) (“concealment is . . . one of the main criminal objectives of an
arson-for-profit scheme because it facilitates the primary objective of
fraudulently acquiring insurance proceeds”); United States v. Urrego-
Linares, 879 F.2d 1234, 1240 (4th Cir. 1989) (statements by co-
conspirator on a monitored telephone call to the defendant who had
already been arrested held to still be in the course of the conspiracy).
In Furtherance of the Conspiracy. Statements that further the
common objectives of the conspiracy, or set in motion transactions
that are part of it, will satisfy the “in furtherance” requirement.
Statements naming the drug ring boss in order to secure a sale, or to
confirm lines of command, seem to further the goals of the illegal
enterprise. “Idle chatter” and statements among conspirators that
merely narrate past events have been held not to satisfy the
requirement. United States v. Cornett, 195 F.3d 776, 783 (5th Cir.
1999). But statements that inform new conspirators, or keep co-
conspirators informed, of significant events and problems have been
held admissible, even though they do not actually further the
enterprise. United States v. Jefferson, 215 F.3d 820, 823 (8th Cir.
2000) (conversations among three alleged co-conspirators
concerning their botched attempt to murder their target by arson, and
the resulting deaths of five others, admitted as “in furtherance”).
Statements to customers, and to outsiders from whom the co-
conspirator seeks help, may or may not further the conspiracy. In
United States v. Urbanik, 801 F.2d 692 (4th Cir. 1986), casual
conversation about weightlifting followed a drug purchase, during
which the seller described the defendant to the buyer both as an
excellent weightlifter and as the supplier of drugs. This was held not
admissible against defendant because it was not in furtherance of the
conspiracy. In United States v. Lee, 374 F.3d 637 (8th Cir. 2004), a
co-conspirator's confession of murder to his brother (not a co-
conspirator) to enlist his aid in selling weapons stolen from the
murder victim was admitted as in furtherance of the conspiracy to use
ill-gotten proceeds to fund a white supremacist group. Similarly, a co-
conspirator's statement to a person not participating in the conspiracy
was held admissible after it was shown to be instrumental to attaining
the conspiracy's goal: United States v. Gupta, 747 F.3d 111, 125 (2d
Cir. 2014). Moreover, a court's finding on a preponderance of the
evidence that a statement was made in furtherance of the conspiracy
will not be overturned on appeal unless it is clearly erroneous, which
cannot be said about a statement that could be interpreted both
ways. Id. at 124.

518
b. Justification for the Admissibility of Co-conspirators' Statements
One largely artificial rationale for the co-conspirator exemption is
that each co-conspirator authorizes (or is deemed to have authorized)
the statements of other co-conspirators.
A more practical rationale is necessity: Conspiracies tend to be
secret enterprises. The criminal activities, particularly of the
leadership, are very difficult to prove. Some of the best evidence—
and perhaps essential evidence if a prosecutor is to prove a
defendant's guilt beyond a reasonable doubt—will be statements
about the conduct of other co-conspirators. Thus, it is arguably
appropriate to burden a person who chooses to engage in a
conspiracy or an ongoing criminal enterprise (particularly, as an
organizer or leader) with the risk that false or inaccurate co-
conspirators' statements will be used against him or her.
 One should consider another, somewhat speculative, reliability
rationale for the exception. Arguably, when the “during” and “in
furtherance” requirements are taken seriously, co-conspirators'
statements tend to be trustworthy because they advance the interest
of the speaker in the success of the criminal enterprise.

13. Elaboration on FRE 801(d)(2)(E): Applying FRE 104 to the Co-

conspirator Exemption
Since it is the co-conspirator relationship that justifies the admission
of co-conspirator hearsay, much attention has been paid to the
process of proving this relationship.
a. Bourjaily v. United States
In 1987, the Supreme Court held in Bourjaily v. United States, 483
U.S. 171 (1987), that all of the preliminary facts necessary to admit
hearsay under FRE 801(d)(2)(E), including the co-conspirator
relationship, are FRE 104(a) questions for the judge to decide by a
preponderance of the evidence. The judge will not instruct the jury to
decide the relationship issue as a necessary precondition to using the
statement for its truth. This conclusion seems to be quite sound. The
foundational question of co-membership in a conspiracy is a hearsay
policy issue, not a relevance issue. Thus, Bourjaily's adoption of the
FRE 104(a) test for deciding this question appears desirable.
Bourjaily also held that it is appropriate for the judge to consider the
content of the hearsay statement itself in deciding whether the
foundational requirements have been satisfied:
Rule 104(a) provides: “In making its [preliminary fact] determination [the court] is not
bound by the rules of evidence except those with respect to privileges.” Similarly, Rule
1101(d)(1) states that the Rules of Evidence (other than with respect to privileges) shall
not apply to “[t]he determination of questions of fact preliminary to admissibility of
evidence when the issue is to be determined by the court under rule 104.” . . . The Rule
on its face allows the trial judge to consider any evidence whatsoever, bound only by the
rules of privilege . . . .

519
It is sufficient for today to hold that a court, in making a preliminary factual
determination under Rule 801(d)(2)(E), may examine the hearsay statements sought to
 be admitted. As we have held in other cases concerning admissibility determinations,
“the judge should receive the evidence and give it such weight as his judgment and
experience counsel.” [Id. at 178-81.]
Bourjaily's decision that the hearsay statement itself may
“bootstrap” the statement's admissibility is reasonable and consistent
with the terms of FRE 104(a). But since there may be reasons to
distrust the reliability of alleged co-conspirators' statements, it may
well be that it would be unwise to rely on nothing but the statement at
issue to establish the foundational requirement of the party's
membership in the conspiracy. Arguably, the statement must receive
corroboration from other evidence, but the Court found it unnecessary
to consider this argument in Bourjaily.
b. The Amendment to FRE 801(d)(2): The Requirement of Additional Evidence
Later on, the Supreme Court promulgated an amendment, effective
in December 1997, that added the following language to FRE 801(d)
(2):
The statement must be considered but does not by itself establish the declarant's
authority under (C); the existence or scope of the relationship under (D); or the
existence of the conspiracy or participation in it under (E).
This language does not specify what kind of additional proof is
needed, nor how much. Most courts post-Bourjaily had required some
additional evidence from a source independent of the co-conspirator's
hearsay statement to corroborate the defendant's membership in the
conspiracy. The Advisory Committee Note to the amendment,
however, appears to contemplate that evidence of the identity of the
speaker and the context in which statement was made, as well as
corroboration, might suffice. As we have noted previously, the
requirement of additional evidence also applies to the key
foundational issues under subsections (C) and (D) as well.
Prior to this amendment, courts found the requirement of
independent evidence to be satisfied by behavior of the defendant
that established a connection to the conspiracy: the defendant's own
statements or statements of others that the defendant adopts;
presence at locations where the co-conspirator said the defendant
would be; attempts to silence the victim of the conspiracy; frequent
phone or other contact with co-conspirators; or presence at drug
deliveries. “Mere association” was held to be insufficient evidence of
membership, but repeated meetings that coincide with large-scale
drug deliveries were held sufficient. United States v. Ammar, 714 F.2d
238, 250 (3d Cir. 1983).
Reported cases since the amendment have continued to enforce
the requirement of evidence corroborating the defendant's
participation in the conspiracy's activities. “The quantum of
independent evidence needed to corroborate the existence of a
conspiracy necessarily is dependent on the totality of circumstances,
including the strength of the hearsay statements themselves.” United
States v. Abu-Jihaad, 531 F. Supp. 2d 289, 296 (D. Conn. 1998).
Here, the court found no independent evidence

520

of the formation of the conspiracy prior to the co-conspirator

statements offered against the defendant and wrote: “[T]his case is
precisely what [those] requirements are designed to catch.” Id. at
289.
Examples of cases in which independent corroboration has been
found include: United States v. Sudeen, 434 F.3d 385 (5th Cir. 2005)
(co-conspirator received and deposited a check for defendant,
received a commission from defendant, and explained delays to
defendant's customers); United States v. Capelton, 350 F.3d 231 (1st
Cir. 2003) (defendant possessed marked bills from drug transaction
and was on the scene during the transaction); United States v. Stotts,
323 F.3d 520 (7th Cir. 2003) (defendant accompanied brother, who
actually sold the drugs, to and from the sale, gestured for the buyer to
follow him in her car, and nodded in agreement for her to inspect the
drugs before paying).
c. Process for Admission of a Co-conspirator's Statement
It is well settled that the trial court has discretion to use the tool of
conditional admissibility with respect to a co-conspirator's statements.
“A court may conditionally admit a challenged statement subject to
later proof to satisfy the co-conspirator rule and defer a final ruling on
admissibility until after hearing the relevant evidence.” United States
v. Roach, 164 F.3d 403, 409 (8th Cir. 1998). Should the judge give
any instruction to the jury when conditionally admitting the co-
conspirator's statement? The judge could say something like, “I am
provisionally admitting these hearsay statements pursuant to what is
called the co-conspirator admission provision. If the prosecutor does
not introduce sufficient independent evidence of the existence of a
conspiracy, I may ask you later to disregard these hearsay
statements.” Would this be a good idea? What are the risks?
However, once a judge has conditionally admitted a co-conspirator's
statement, the judge may be reluctant to find that the FRE 104(a)
preliminary fact standard has not been satisfied. Such a finding would
require the judge either to instruct the jury to disregard the co-
conspirator's statement or to declare a mistrial. The instruction to
disregard is not a realistic solution in many cases. Can the jury be
expected to be able to obey it? And because the prosecutor will have
presented all—or at least a substantial part—of the state's case
before it becomes clear that the foundational requirements cannot be
satisfied, the mistrial alternative will frequently be quite expensive.
For these reasons, it may be wise for the judge to insist on proof of
the foundational facts before proof of the co-conspirator's statement.
United States v. Saneaux, 365 F. Supp. 2d 493, 502 (S.D.N.Y. 2005)
(paucity of government's proof that statements were “in furtherance”
at motion in limine held to preclude conditional admission;
government should place before the jury all evidence it relies on to
satisfy the required foundation before jury may hear the recorded co-
conspirator statements).

KEY POINTS
1. Under FRE 801(d)(2)(A), any statement made out of court by a
party may be used against that party to prove the truth of the
matter it asserts, so long as it is relevant and not otherwise
objectionable.
521

2. FRE 801(d)(2) also provides a hearsay exemption for: (B)

statements about which the party manifests adoption or belief
their truth; (C) statements authorized by the party; (D) certain
statements made by an agent or employee of the party during
the relationship on matters within the scope of the agent's
employment; and (E) certain statements made by a co-
conspirator of the party during and in furtherance of the
conspiracy.
3. The judge must be persuaded, pursuant to FRE 104(a), that
the foundational requirements for each of these exemptions
are satisfied. The judge may use the statement itself in
deciding the preliminary questions, but other evidence is
necessary as well to find authority, the existence or scope of
the agency or employment, and the existence of and
participation in a conspiracy.
4. The primary justification for the FRE 801(d)(2) exemptions is
that the party cannot fairly complain about the loss of cross-
examination of the declarant because the party can explain the
unreliability in the statement, or because it is necessary and
fair to impose on the party the risk and burden of not being
able to do so.

PROBLEMS
8.37. Return to Problem 3.3, United States v. Ray, at page 149. The
prosecution offers the following evidence. Defense counsel
objects to each piece of evidence as hearsay. How should the
court rule?
(a) A Rundown V.P. to testify: “On March 15, 2015, Bernard
Ray said to me that he had just read a memo from his
auditor, Andrews, and Rundown stock was going to take a
beating.”
 (b) A senior VP at Andrews's accounting firm to testify: “On
March 16, 2015, I spoke with Bernard Ray at our club. I
said, 'Bernard, I hear that Rundown is going to project big
losses in a few days. I assume you've already dumped
most of your holdings.' Then Bernard said, 'Don't worry
about me—I'm all set.' ”
(c) The prosecution offers an authenticated copy of the
March 14, 2015 outside auditor's memo to prove that
Andrews in fact projected Rundown losses for the second
quarter of 2015.
8.38. Daniel Mahlandt has sued the Wild Canid Survival & Research
Center, Inc. and its director of education, Kenneth Poos, for
injuries sustained when Daniel was allegedly bitten by a wolf
named Sophie. Sophie was owned by the Center but lived
temporarily at the Poos home. She was enclosed in the yard
by a five-foot chain link fence and was chained to the fence
with a six-foot-long chain. Daniel, who was three-and-a-half
years old at the time of the alleged biting, was found bleeding
and hysterical inside the yard with Sophie. There were no
eyewitnesses as to how Daniel got into the yard or whether
Sophie bit him. One witness testified that she heard a child's
screams and observed Daniel on the ground with Sophie
straddling him. Sophie's face was near Daniel's, and Sophie
was wailing. Kenneth Poos's son found Daniel and carried him
into the house.

522

Kenneth Poos will testify that Sophie had been hand raised
by humans since birth, has been very gentle, and that he takes
her to various schools and institutions as part of his educational
program for the Center. A defense witness, an expert on animal
behavior, will testify that when a wolf licks a child's face, that is
a sign of care; that a wolf's wail is a sign of compassion; and
that Daniel's particular injuries were not consistent with a wolf
attack.
 Mr. Poos arrived at his home shortly after the incident. After
seeing that Daniel was taken to a hospital, Mr. Poos talked to
his son about what happened and then went to the Center to
report the incident to the Center's president. The president was
not in, so Mr. Poos left the following note on his door: “Please
call me at home. Sophie bit a child that came into our
backyard. All has been taken care of. I need to convey to you
what happened. KP.” Several weeks later there was a meeting
of the Board of Directors of the Center. Mr. Poos was not
present. The minutes of that meeting state that there was a
“great deal of discussion about the incident of Sophie biting the
child and its legal aspects.” Plaintiff has offered into evidence
against both Mr. Poos and against the Center (a) the note
written by Mr. Poos and (b) the foregoing passage from the
minutes of the board meeting. Both defendants have objected
on hearsay grounds to the admission of both pieces of
evidence. With respect to each defendant, what result?
8.39. Tom Hay went to the emergency room (ER) complaining of
chest pains and excessive sweating. Standard ER tests were
run by Dr. Gatwick. These tests ruled out a recent heart attack
but did not rule out cardiovascular disease as the cause of his
symptoms. Two weeks later Hay suffered a heart attack and
died.
Plaintiff, Hay's wife Barbara, has filed suit against Dr. Gatwick
for medical malpractice seeking damages for her loss of
consortium and support. It is agreed that the prevailing
standard of care is that Gatwick should have advised Hay, his
patient, to agree to enter the hospital for observation and
additional tests. There is evidence suggesting that Hay's heart
disease might have been treatable had it been discovered by
further tests that can be administered only to a hospitalized
patient. Gatwick asserts that he gave the required advice, and
that Hay left the hospital that day against medical advice.
At trial, Plaintiff testifies that she arrived at the ER as Hay
was leaving, and that Hay said, “The doctor told me that I was
lucky and could safely leave.” She further testifies that Gatwick
 was standing close enough that, in her opinion, he could have
heard Hay's statement. Is Plaintiff's testimony admissible?
8.40. The United States is suing the Sheriff of Paxton County,
Virginia, for refusing to consider women for a deputy sheriff
(patrol) position in violation of Title VII, 42 U.S.C. §§2000 et
seq. The government offered the testimony of an equal
opportunity employment investigator who was investigating
complaints against the Sheriff. The investigator recited the
contents of a conversation with Mr. Giana, the county attorney
who was representing the Sheriff regarding the discrimination
claim:
Mr. Giana: “The sheriff wants big tall men for that job [patrolman], that could
defend themselves and be somewhat imposing. Females don't have a chance in
this position.”
Are Mr. Giana's statements admissible against the Sheriff?

523

8.41. Return to Problem 4.5 on page 208. The prosecution wants to

argue that Bonds authorized his trainer, Greg Anderson, to
speak to the BALCO lab on his behalf. Recall that when
Anderson delivered urine samples to BALCO, he allegedly told
Valente that the samples were from Barry Bonds. The
government concedes that it cannot prove that Bonds gave
specific authority to Anderson, but that by allowing Anderson to
have the samples tested, Bonds impliedly authorized Anderson
to identify them to BALCO. What do you think of this
argument? Could any section of FRE 801(d)(2) be used to
admit Anderson's hearsay statements against Bonds?
8.42. Return to Problem 3.2, Pedroso v. Driver, on page 148. Paul's
mother testifies for plaintiffs that Paul's teacher told her,
several weeks after the accident, that Driver's supervisor had
told the teacher that, in his opinion, Driver was not keeping a
proper lookout before the accident. Defendants object on
grounds of hearsay. Admissible?
8.43. Plaintiff, an African American employee of Johnson Welding,
filed an EEOC complaint for hostile work environment on the
job. After the complaint was filed, plaintiff contends, the
company retaliated by intentionally isolating him from other
employees, instructing them not to talk with him, and moving
plaintiff's work station to the “back” of the welding facility. After
trial, the jury awarded plaintiff both compensatory and punitive
damages. On appeal, Johnson Welding claims error in the
admission of testimony by one of plaintiff's witnesses, Alan
Mason. Mason was a coworker of plaintiff at Johnson Welding.
Mason testified as follows:
At a barbecue at my home, my brother-in-law, David, made a statement to me.
David works at Johnson also. David said that Tom (plaintiff's supervisor) told David
that “some bad stuff is going to happen in the back” and that “David should tell
Mason that he should stay out of it unless he wants to be fired.”
Plaintiff claims this testimony was relevant to show Johnson
Welding's vindictive state of mind toward him and that its
treatment of him was retaliatory. Was it error to admit Mason's
testimony?
8.44. Seven members of the Gangster Disciples (GD), a street gang
(6,000 members) that operated a massive drug distribution
business in the Chicago area, are being prosecuted for drug,
weapons, and money-laundering offenses. The leader of the
GD is known to be Larry Hoover, who for years ran the gang
from inside of various prisons. His female partner owned a
legitimate business called Save the Children Promotions. In an
authorized IRS search of the Save the Children offices, agents
found a document in a folder marked “L.H./Sr.” The document
was a list describing the hierarchical and territorial organization
of the entire GD operation. In some taped conversations,
Hoover had mentioned his desire to develop such a document
to keep track of gang members and their payments to GD. All
seven defendants are mentioned in the list. On what basis can
they object to admission of the list against them at trial? What
result?
8.45. In the prosecution of a wealthy show horse owner for
insurance fraud, the government seeks to prove that the owner
conspired to have one of his horses, Charisma, killed in order
to collect insurance proceeds. The person who was

524

hired to kill Charisma, Burns, was hired by Marty, the owner's horse
trainer, and told that “the owner wanted it done on December
15 because he was in Asia, and because Charisma was
scheduled to travel from New York to Florida on December 16.”
Marty paid Burns to do the job. Can the government use
Burns's testimony about Marty's statements against the
owner? Suppose that the government has independent proof
that the owner was indeed in Asia on December 15, and that
Charisma was scheduled to travel to Florida on December 16?
What result? Suppose that the government can also prove
that, after Charisma's death, the owner intentionally lied to the
insurance company about who was allowed to ride Charisma,
in order to avoid one of the insurance policy's exceptions?

D. HEARSAY EXCEPTIONS NOT REQUIRING THE

UNAVAILABILITY OF THE DECLARANT

FRE 803 excepts 23 different types of hearsay statements from the

general rule of exclusion. There is no requirement in this rule that the
declarant be unavailable to testify as a witness. Thus, the
justifications for admitting this much hearsay are especially important
for your overall evaluation of the hearsay rule in practice. Some of the
FRE 803 exceptions are legacies of almost 300 years of common law
development and are rarely used in modern federal litigation. We will
focus primarily on the exceptions that are most used today.
The premise of all FRE 803 exceptions is that these types of
statements are reliable enough to be used in the jury's factfinding
even without cross-examination of the declarant by the opponent. In
the words of the Advisory Committee Note, these kinds of statements
“possess circumstantial guarantees of trustworthiness sufficient to
justify nonproduction of the declarant in person at the trial even
though he may be available.” This means that something about the
hearsay statement—its content, its source, the circumstances in
which it was made—reveals something “trustworthy” about the
declarant's testimonial qualities. This is the “reliability approach” to
the admission of hearsay that we already saw at work in FRE 801(a)
and (c) and in the FRE 801(d) exemptions as well.
Nearly all of the Rule 803 exceptions are categorical. They each
define a specific type of out-of-court statement that may be admitted
for the truth of the matter it asserts, and they each identify preliminary
facts that the proponent must satisfy pursuant to the process
described above in Section B. Again, the preliminary facts required to
establish the applicability of a hearsay exception (or an exception to
the exception) are FRE 104(a) questions. They are facts upon which
the application of an evidence exclusion rule depends, and the party
asserting the rule (or exception) must convince the judge by a
preponderance of the evidence that the required facts are probably
true.
In this section, we will examine the required preliminary facts and
the reliability rationales underlying the more important FRE 803
exceptions. Remember that even if a hearsay statement fits within a
Rule 803 exception, other rules may operate to

525

exclude it: the best evidence rule, the character evidence

prohibitions, privilege, and, of course, FRE 403, may all have to be
applied as well.
Two other general points apply to all Rule 803 (and Rule 804)
exceptions. Because the declarant's statement is offered for its truth,
the declarant is a source of knowledge for the jury, analogous to a
witness testifying at trial. Therefore, the fundamental requirement that
witnesses must speak from personal knowledge applies as well to
hearsay declarants under most of the FRE 803 and FRE 804 hearsay
exceptions. The Advisory Committee Note to Rule 803 makes this
clear:
In a hearsay situation, the declarant is, of course, a witness, and neither this rule nor
Rule 804 dispenses with the requirement of firsthand knowledge. It may appear from his
statement or be inferable from circumstances. See Rule 602.
In addition, the opponent to an item of hearsay can attack the
credibility of hearsay declarants in most of the ways that witnesses
can be attacked. FRE 806 makes this clear:
RULE 806. ATTACKING AND SUPPORTING THE DECLARANT'S CREDIBILITY
When a hearsay statement—or a statement described in Rule 801(d)(2)(C), (D), or (E)—
has been admitted in evidence, the declarant's credibility may be attacked, and then
supported, by any evidence that would be admissible for those purposes if the declarant
had testified as a witness. The court may admit evidence of the declarant's inconsistent
statement or conduct, regardless of when it occurred or whether the declarant had an
opportunity to explain or deny it. If the party against whom the statement was admitted
calls the declarant as a witness, the party may examine the declarant on the statement
as if on cross-examination.
It is more difficult, of course, to impeach a hearsay declarant without
the tool of cross-examination. Issues regarding impeachment under
FRE 806 are discussed in Margaret Meriwether Cordray, Evidence
Rule 806 and the Problem of Impeaching the Nontestifying Declarant,
56 Ohio St. L.J. 495 (1995).

1. FRE 803
RULE 803. EXCEPTIONS TO THE RULE AGAINST HEARSAY—REGARDLESS OF
WHETHER THE DECLARANT IS AVAILABLE AS A WITNESS
The following are not excluded by the rule against hearsay, regardless of whether the
declarant is available as a witness:
(1) Present Sense Impression. A statement describing or explaining an event or
condition, made while or immediately after the declarant perceived it.
(2) Excited Utterance. A statement relating to a startling event or condition, made
while the declarant was under the stress of excitement that it caused.
(3) Then-Existing Mental, Emotional, or Physical Condition. A statement of the
declarant's then-existing state of mind (such as motive, intent, or plan)

526
or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily
health), but not including a statement of memory or belief to prove the fact remembered
or believed unless it relates to the validity or terms of the declarant's will.
 (4) Statement Made for Medical Diagnosis or Treatment. A statement that:
(A) is made for—and is reasonably pertinent to—medical diagnosis or treatment;
and
(B) describes medical history; past or present symptoms or sensations; their
inception; or their general cause.
(5) Recorded Recollection. A record that:
(A) is on a matter the witness once knew about but now cannot recall well enough
to testify fully and accurately;
(B) was made or adopted by the witness when the matter was fresh in the witness's
memory; and
(C) accurately reflects the witness's knowledge.
If admitted, the record may be read into evidence but may be received as an exhibit
only if offered by an adverse party.
(6) Records of a Regularly Conducted Activity. A record of an act, event, condition,
opinion, or diagnosis if:
(A) the record was made at or near the time by—or from information transmitted by
—someone with knowledge;
(B) the record was kept in the course of a regularly conducted activity of a business,
organization, occupation, or calling, whether or not for profit;
(C) making the record was a regular practice of that activity;
(D) all these conditions are shown by the testimony of the custodian or another
qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a
statute permitting certification; and
(E) the opponent does not show that the source of information or the method or
circumstances of preparation indicate a lack of trustworthiness.
(7) Absence of a Record of a Regularly Conducted Activity. Evidence that a matter is
not included in a record described in paragraph (6) if:
(A) the evidence is admitted to prove that the matter did not occur or exist;
(B) a record was regularly kept for a matter of that kind; and
(C) the opponent does not show that the possible source of the information or other
circumstances indicate a lack of trustworthiness.
(8) Public Records. A record or statement of a public office if:
(A) it sets out:
(i) the office's activities;
(ii) a matter observed while under a legal duty to report, but not including, in a
criminal case, a matter observed by law-enforcement personnel; or
(iii) in a civil case or against the government in a criminal case, factual findings
from a legally authorized investigation; and

527
(B) the opponent does not show that the source of information or other
circumstances indicate a lack of trustworthiness.
(9) Public Records of Vital Statistics. A record of a birth, death, or marriage, if reported
to a public office in accordance with a legal duty.
(10) Absence of a Public Record. Testimony—or a certification under Rule 902—that a
diligent search failed to disclose a public record or statement if the testimony or
certification is admitted to prove that:
 (A) the record or statement does not exist; or
(B) a matter did not occur or exist, if a public office regularly kept a record or
statement for a matter of that kind.
(11) Records of Religious Organizations Concerning Personal or Family History. A
statement of birth, legitimacy, ancestry, marriage, divorce, death, relationship by blood or
marriage, or similar facts of personal or family history, contained in a regularly kept
record of a religious organization.
(12) Certificates of Marriage, Baptism, and Similar Ceremonies. A statement of fact
contained in a certificate:
(A) made by a person who is authorized by a religious organization or by law to
perform the act certified;
(B) attesting that the person performed a marriage or similar ceremony or
administered a sacrament; and
(C) purporting to have been issued at the time of the act or within a reasonable time
after it.
(13) Family Records. A statement of fact about personal or family history contained in
a family record, such as a Bible, genealogy, chart, engraving on a ring, inscription on a
portrait, or engraving on an urn or burial marker.
(14) Records of Documents That Affect an Interest in Property. The record of a
document that purports to establish or affect an interest in property if:
(A) the record is admitted to prove the content of the original recorded document,
along with its signing and its delivery by each person who purports to have signed it;
(B) the record is kept in a public office; and
(C) a statute authorizes recording documents of that kind in that office.
(15) Statements in Documents That Affect an Interest in Property. A statement
contained in a document that purports to establish or affect an interest in property if the
matter stated was relevant to the document's purpose—unless later dealings with the
property are inconsistent with the truth of the statement or the purport of the document.
(16) Statements in Ancient Documents. A statement in a document that is at least 20
years old and whose authenticity is established.
(17) Market Reports and Similar Commercial Publications. Market quotations, lists,
directories, or other compilations that are generally relied on by the public or by persons
in particular occupations.
(18) Statements in Learned Treatises, Periodicals, or Pamphlets. A statement
contained in a treatise, periodical, or pamphlet if:

528
(A) the statement is called to the attention of an expert witness on cross-
examination or relied on by the expert on direct examination; and
(B) the publication is established as a reliable authority by the expert's admission or
testimony, by another expert's testimony, or by judicial notice.
If admitted, the statement may be read into evidence but not received as an exhibit.
(19) Reputation Concerning Personal or Family History. A reputation among a
person's family by blood, adoption, or marriage—or among a person's associates or in
the community—concerning the person's birth, adoption, legitimacy, ancestry, marriage,
divorce, death, relationship by blood, adoption, or marriage, or similar facts of personal
or family history.
 (20) Reputation Concerning Boundaries or General History. A reputation in a
community—arising before the controversy—concerning boundaries of land in the
community or customs that affect the land, or concerning general historical events
important to that community, state, or nation.
(21) Reputation Concerning Character. A reputation among a person's associates or
in the community concerning the person's character.
(22) Judgment of a Previous Conviction. Evidence of a final judgment of conviction if:
(A) the judgment was entered after a trial or guilty plea, but not a nolo contendere
plea;
(B) the conviction was for a crime punishable by death or by imprisonment for more
than a year;
(C) the evidence is admitted to prove any fact essential to the judgment; and
(D) when offered by the prosecutor in a criminal case for a purpose other than
impeachment, the judgment was against the defendant.
The pendency of an appeal may be shown but does not affect admissibility.
(23) Judgments Involving Personal, Family, or General History or a Boundary. A
judgment that is admitted to prove a matter of personal, family, or general history, or
boundaries, if the matter:
(A) was essential to the judgment; and
(B) could be proved by evidence of reputation.

2. Explanation of FRE 803(1): Present Sense Impression

There are two exceptions that provide for the admission of two
different kinds of spontaneous hearsay statements—present sense
impressions and excited utterances. The categorical requirements for
each are somewhat different. FRE 803(1) provides:
(1) Present Sense Impression. A statement describing or explaining an event or
condition, made while or immediately after the declarant perceived it.

529
a. Preliminary Factfinding

The factual requirements for present sense impressions are:

the occurrence of an event or condition;

the contents of the statement describe or explain the event or
condition; and
the declarant made the statement while or immediately after
perceiving the event or condition.
Think back to the first illustration of an out-of-court statement that we
used in this chapter. We found that Sally's statement “the gray SUV
ran the red light and hit a pedestrian” would be hearsay, if reported by
George at trial. But Sally's statement might have been made to
George either while Sally was seeing the SUV, or within seconds or
minutes of seeing it. Thus, it might be admissible hearsay, if it
qualifies as a present sense impression. The pedestrian, the
proponent of the statement, must present evidence to show that it
falls within the categorical terms of FRE 803(1). These are
preliminary questions for the judge to determine pursuant to FRE
104(a). The court should be convinced by a preponderance of the
evidence that there was an event occurring just before Sally's
statement was made, and that Sally's statement describes it.
Many present sense impressions are presented in court through the
testimony of witnesses who also perceived the event or condition
themselves. If George saw the accident, he would be able to provide
evidence showing that the event occurred and that Sally made the
statement contemporaneously with it. The judge could then determine
whether the statement describes or explains the event or condition
from the contents of the statement itself.
b. Justification for the Admissibility of Present Sense Impressions
The primary justification for admitting present sense impressions is
that the contemporaneity of the statement and the event it is offered
to prove tends to ensure the declarant's sincerity. This rationale falls
squarely within the reliability theory advanced for admitting
trustworthy hearsay. It is based on the generalization that, with little or
no time passing between statement and event, the statement is
spontaneous rather than premeditated. If the statement is
spontaneous, there is no time to develop the intent to fabricate. If
there is no time or opportunity to fabricate, the statement is probably
sincere. Additionally, the contemporaneity of the statement and the
event virtually eliminates any memory problem.

3. Explanation of FRE 803(2): Excited Utterance

FRE 803(2) provides:
(2) Excited Utterance. A statement relating to a startling event or condition, made
while the declarant was under the stress of excitement that it caused.

530
a. Preliminary Factfinding
The factual requirements for excited utterances are:

the occurrence of a startling event or condition;

the statement relates to the startling event or condition;
the statement was made by the declarant while under stress of
excitement; and
the stress of excitement was caused by the startling event or
condition.

Sally's statement to George might also be an excited utterance.

Again, the proponent must present evidence to satisfy the factual
requirements, and the judge will decide the preliminary questions
pursuant to FRE 104(a). The judge may conclude that an SUV
running through a red light and hitting a pedestrian is a startling
event. Again, George would be the witness to testify that the event
occurred and that Sally was under stress of excitement when she
made the statement. How might George describe Sally's behavior to
prove that she was under stress of excitement? George might also
establish that Sally's stress was caused by the startling event, if he
said, “She was perfectly calm before the accident.” In Boucher v.
Grant, 74 F. Supp. 2d 444, 450 (D.N.J. 1999), the court held that
declarant Grant's hearsay statement was admissible under the
following analysis:
An automobile accident and a contemporaneous statement by an individual involved in
that accident concerning its cause undoubtedly satisfy the first three elements of the
excited utterance hearsay exception. The question becomes, then, whether the hearsay
statements meet the last condition of admissibility, namely, spontaneity. . . .
Boucher testified that his exchange with Grant occurred “within a minute” of the
accident . . . Grant himself testified that as a result of the crash, he was “scared . . .
shaken up.” . . . The brief lapse of time coupled with Grant's mental state cannot give
rise to a finding of conscious reflection. Therefore, I conclude that the statement was
made while Grant was still in an excited state and before he could reflect and fabricate.
Many factors are relevant to the question of whether the defendant
was under stress of excitement from the startling event at the time the
statement was made:
[W]e consider . . . the lapse of time between the startling event and the statement,
whether the statement was made in response to an inquiry, the age of the declarant, the
physical and mental condition of the declarant, the characteristics of the event, and the
subject matter of the statement. [United States v. Wilcox, 487 F.3d 1163, 1170 (8th Cir.
2007).]

b. Justification for the Admissibility of Excited Utterances

The justification for the exception is similar to the argument that
present sense impressions are reliable. A statement made under the
stress of a startling event or condition is likely to be spontaneous, and
a person under stress is not likely to develop the intent to fabricate. If
there is no opportunity to fabricate, the statement is likely to be
sincere. Notice, however, that there is no requirement of
“contemporaneity” between the event and the statement. Stress of
excitement is the substitute for contemporaneity. A longer time lag will
not defeat application of the FRE 803(2) exception if the

531

declarant remains under stress. So long as stress is continuous

from the moment of the startling event, there is assumed to be no
opportunity to plan to make a false statement and thus the statement
is likely to be sincere. United States v. DeMarce, 564 F.3d 989, 997
(8th Cir. 2009) (“The rationale of the excited utterance exception is
that stress of nervous excitement or physical shock stills the reflective
faculties, thus removing an impediment to truthfulness.”). In De
Marce, the plaintiff in an attempted sexual assault case initially
fabricated a story about tripping in the hallway to explain why she had
a bloody lip. Then she returned and told her mother about the
attempted assault. The court held that her statements “demonstrate a
level of reflection that prohibit their admission as an excited
utterance.”
Since the duration of the declarant's stress of excitement is likely to
be relatively short, memory danger may also be lessened. However,
as commentators have long recognized, the stress that decreases the
sincerity danger may increase perception dangers and memory
dangers, and perhaps even narration dangers as well. Consider the
effects of seeing someone hit by a car—how carefully and accurately
are you able to perceive and recount the details of such an event?
Nonetheless, the exception is well established in the Federal Rules
and in most jurisdictions.
Compare the concern for contemporaneity or spontaneity under
FRE 803(1) and (2) with the lack of such requirements for statements
identifying a person admitted under FRE 801(d)(1)(C). We noted
there that application of this exemption to statements not made at
lineups and other formal opportunities for reperception, but rather
after a lapse of time and in the absence of stress, undermines the
potential reliability of such statements.

4. FRE 803(1) and (2): Practical Effects of the Categorical

Approach
a. The Categories Determine Admissibility
Do you agree that the probability of Sally's sincerity in making her
statement about the gray SUV is increased by the fact that her
statement was made contemporaneously with seeing the SUV? Or by
the fact that it was made under stress of a startling event? Analyzing
this question requires you to think in terms of generalizations about
large groups of out-of-court declarants who share either the FRE
803(1) or the FRE 803(2) characteristic in common. How can we be
sure that everyone within this large group does have enhanced
sincerity? The answer is, we can't be sure. Even more troubling, how
do we know that Sally has good eyesight and could perceive the SUV
from the distance at which she was standing, or could perceive that
the light was red? The answer is, we don't know. The only facts about
Sally's testimonial qualities that FRE 803(1) and (2) require to be
presented to the jury are the facts about spontaneity that satisfy the
categorical requirements of the exceptions.
The effects of this categorical approach are twofold. First, if a
statement clearly fits within the broad categorical generalizations of
the specific exception, it must be admitted over a hearsay objection,
without any case-specific inquiry into its reliability. Except for three
specific exceptions that build in a case-by-case reliability

532

inquiry (FRE 803(6), 803(8), and 804(b)(3)), there is no explicit

judicial discretion to exclude a particular statement that fits within a
categorical exception where the judge doubts the sincerity,
perception, memory, or narration of the hearsay declarant. Second,
and conversely, if a judge thinks that a hearsay statement seems to
be particularly trustworthy but it is neither contemporaneous with an
event (it was made a day later) nor made under the stress of
excitement (it was made calmly), then the judge has no explicit
discretion under FRE 803(1) or (2) to admit it. The categorical
requirements of each exception determine admissibility. Only FRE
807 permits the admission of hearsay based on judicial
determinations that it is trustworthy.
b. The Categorical Terms Require Judicial Interpretation
Although there is no explicit discretion in most of the hearsay
exceptions, judges do have some leeway when they interpret and
apply the categorical terms of the exceptions to particular statements.
How long a time lag is permitted by the term “immediately thereafter”
in FRE 803(1)? Just what is “stress” in FRE 803(2), and how long
does it last? There are no clear-cut answers to these questions in the
text of the rule or the case law. You will see in many of the Rule 803
and Rule 804 exceptions that there is considerable room for judicial
interpretation. Since the categorical requirements are determinative
of admissibility, judicial interpretation of these requirements is crucial
to the administration of hearsay policy. These requirements are
intended to ensure the trustworthiness of one or more of the
declarant's testimonial qualities. It follows that judges should interpret
and apply the doctrinal terms with the awareness that different
interpretations can either increase or decrease the apparent
trustworthiness of admitted hearsay statements.
 Time Lapse Between Event and Statement. Not all seemingly
contemporaneous statements are really spontaneous. They might
have been thought up in advance, if the declarant had any
foreknowledge that the relevant event might occur. And a time lapse
of more than a few minutes may be plenty of time to think up
something self-serving to say. Particularly if a statement is obviously
self-serving, one may doubt its spontaneity and, therefore, its
sincerity. Rigorous application of the contemporaneity requirement of
FRE 803(1) would reduce this problem. Many courts have interpreted
“immediately after” in FRE 803(1) to mean within a matter of seconds,
or as soon as is possible. United States v. Shoup, 476 F.3d 38, 42
(1st Cir. 2007) (911 phone call made “only one or two minutes . . .
immediately following” event). Some courts, however, have stretched
the interpretation of that doctrinal phrase to admit apparently
spontaneous statements made 10 to 15 minutes after the event they
describe or explain. See, e.g., United States v. Obayagbona, 627 F.
Supp. 329 (E.D.N.Y. 1985) (statement made by undercover police
officer about a drug transaction, made 14 minutes afterward, “was as
spontaneous as possible” since it could not be made until after the
arrest.) Courts also look to the context within which the statement
was given, and any intervening events. United States v. Ramos, 397
Fed. App'x 767, 771 (3d Cir. 2010) (statement inadmissible when 20
minutes had elapsed between event and

533

statement and declarant was securely detained within police car;

requirement of “no time to fabricate or misrepresent” not satisfied).
FRE 803(2) places no specific time restraint on the scope of the
exception. The temporal gap is therefore not dispositive, but is a
relevant consideration in determining whether the statement is made
while the declarant is still under stress. “Our cases do not demand a
precise showing of the lapse of time . . . The exception may be based
solely on '[t]estimony that the declarant still appeared nervous or
distraught and that there was a reasonable basis for continuing [to
be] emotional[ly] upset.' ” United States v. Davis, 577 F.3d 660, 669
(6th Cir. 2009). Other relevant factors include the characteristics of
the event; the subject matter of the statement; whether the statement
was made in response to an inquiry; and the declarant's age, motive
to lie, and physical and mental condition. In cases where the event is
less startling, courts tend to require a shorter time lapse between
event and statement.
Statements of young children about incidents of sexual abuse are
frequently made hours or even days after the alleged incident
occurred. Some courts admit these statements under FRE 803(2)
citing various justifications—the “first real opportunity” to speak to an
adult or caregiver, or fear and guilt causing child to delay reporting, or
lack of capacity to fabricate—while other courts are suspicious of
such lengthy delays. Reed v. Thalacker, 198 F.3d 1058, 1062 (8th Cir.
1999) (“distorted recollection . . . can occur through deliberate
coaching, inadvertent suggestion, confusion of fact and fantasy, or a
simple defect in memory”).
Cases involving domestic violence may also justify courts in
extending the period of time during which the declarant is under
stress: “trauma and anxiety prompted by a spousal assault—which
form the predicate for calling something an excited utterance—do not
suddenly dissipate when the assailant leaves the scene.” United
States v. Green, 125 Fed. App'x 659, 662 (6th Cir. 2005). Excited
utterances about criminal activity made to 911 operators and police
present challenging issues under Crawford v. Washington's holding
that the confrontation clause applies to “testimonial” statements. See
Section G, infra.
Opportunity to Fabricate as an Interpretive Guide. The
spontaneity of the statement under FRE 803(1) or (2)—that is, the
apparent lack of the declarant's opportunity to fabricate—is an
underlying rationale for these two hearsay exceptions. But the
absence of an opportunity to fabricate is not an express factual
element: Spontaneity implies a lack of opportunity to fabricate rather
than the other way around. Nevertheless, sometimes the rationale
can be offered in argument as a persuasive guide to a judge applying
the rule in a given fact situation. For example, as noted above, some
courts have used lack of an opportunity to fabricate to justify
admitting present sense impressions despite longer time lapses.
With excited utterances, the stress of excitement is normally
supposed to be continuous from the time of the exciting event to
prevent the opportunity to fabricate. But at least one case has held
that the stress of a startling event can be rekindled by events that
remind the declarant of the startling event or generate additional
anguish. United States v. Lossiah, 129 Fed. App'x 434 (10th Cir.
2005) (child under age of 12 saw defendant at her school and “ran to
tell” her teacher “Don't let him check me out

534

. . . he raped me”; alleged attack had occurred two months before,

but caused child to be fearful when she saw defendant at school).
The reasoning here would seem to be that the rekindled stress was
itself a new startling event.
An opportunity to fabricate occurs when a person has the time and
mental space for reflection. In thinking about this issue, it should be
borne in mind that the human mind can work very rapidly. In some
circumstances, reflection could be almost instantaneous. Consider,
for example, your process as a law student in taking class notes.
Unless you are operating as a stenographer making a verbatim
record, you are most likely exercising editorial judgment and
discretion—deciding what statements are worth noting down, and
often rephrasing them in your own words. While your process is near
contemporaneous, it is also reflective. For this reason, your class
notes and, more generally, note taking to memorialize meetings and
conversations, are not good candidates for the FRE 803(1) exception.
But see United States v. Ferber, 966 F. Supp. 90 (D. Mass. 1997)
(handwritten notes reciting what someone said at a meeting fall within
the exception).
Scope of the Statement. The FRE 803(1) requirement that the
declaration be one describing or explaining an event or condition is
intended to be a limitation on the scope or subject matter of the
statement that is consistent with the exception's underlying rationale.
But the Advisory Committee Note states that the language of FRE
803(2)—relating to a startling even or condition— “affords a broader
scope of subject matter coverage.” It is not intuitively obvious why a
broader range of facts should be admissible under an FRE 803(2)
excited utterance than under an FRE 803(1) present sense
impression, but that is the significance of “relating to” as compared to
“describing” and “explaining.” Still, there are limits to how broadly the
term “relating to” will be applied. See, e.g., United States v. Alarcon-
Simi, 300 F.3d 1172, 1176 (9th Cir. 2002) (defendant sought
admission of his own exculpatory statement made just after the
“traumatic incident” of being arrested for fraudulent check-cashing;
statement that “he didn't know about [it]” held inadmissible as not
“relating to” what “occurred at the time of his arrest,” but to earlier
events).
c. Use of the Statement Itself in Preliminary Factfinding
FRE 104(a) governs the judge's preliminary factfinding necessary to
apply the categorical terms of the FRE 803 exceptions. FRE 104(a)
permits the judge to consider inadmissible evidence, including the
hearsay statement itself, in determining whether the preliminary facts
for the exceptions have been shown to be probably true. This is the
same “bootstrapping” issue that we discussed in the context of the
Rule 801(d)(2)(C), (D) and (E) exemptions for agent, employee, and
co-conspirator statements.
This issue becomes particularly important where there is limited
information about the underlying event. Recall that that the
occurrence of an event (or a startling event) is a factual element of
the FRE 803(1) and (2) exceptions. In many cases, there is likely to
be proof that the event occurred without relying on the hearsay
statement itself. But sometimes, such independent evidence will not
be available. For example, if Sally was speaking to George on her car
phone when she said “a gray SUV just ran

535
 the red light and hit a pedestrian,” George cannot provide
independent evidence that the event described by Sally actually
occurred. Statements admitted under FRE 803(1) and (2) can also be
in writing, so there may be no other person present to verify either the
event or when the written statement was made.
Strange as it may seem, the contents of the hearsay statement
alone may satisfy the Rule 104(a) burden of proving that an event
occurred, when it occurred, and what kind of an event it was. See
United States v. Arnold, 486 F.3d 177, 180 (6th Cir. 2007) (to
establish a startling event, court relied on declarant's statement
during 911 call that defendant had just threatened her with a gun).
Advisory Committee Note to FRE 803(2) (“an excited utterance may
of itself be sufficient to establish the occurrence of the startling
event”); but see Arnold, 486 F.3d at 208 (dissenting opinion) (“anyone
could contrive a fact that—if real—would cause excitement, and state
it in an exclamatory manner. To hold that such a statement, standing
alone, is admissible for the truth of the matter asserted stands the
hearsay rule on its head.”). If the judge is persuaded that the FRE
803(1) or (2) elements have been shown in this circumstance, the
statement is admitted into evidence and is, by necessary implication,
sufficient to support a finding pursuant to FRE 104(b) or 901 that the
event occurred. However, the judge's ruling admitting the hearsay
evidence does not bind the jury to agree that the event occurred; the
jury remains free to disbelieve the hearsay evidence.
d. Proof of Personal Knowledge
As we stated above, a hearsay declarant functions as a witness
because her statement is offered to prove the truth of the facts it
asserts—just as live witness testimony is offered to prove the truth of
the facts asserted by the in-court witness. Consistent with this
general principle, courts have held that the proponent of a present
sense impression or excited utterance must show that “the declarant
had personally perceived the event or condition about which the
statement is made.” United States v. Mitchell, 145 F.3d 572, 575 (3d
Cir. 1998). The content of the statement, and the circumstances
surrounding the making of it, may be sufficient, even when the
declarant is unidentified. In Miller v. Keating, 754 F.2d 507 (3d Cir.
1985), an unidentified bystander ran up to the parties involved in an
automobile collision and exclaimed that one car (the defendant's) had
cut into the line of traffic, thus causing the accident. The appellate
court reversed the trial court's admission of this statement:
When there is no evidence of personal perception, apart from the declaration itself,
courts have hesitated to allow the excited utterance to stand alone as evidence of the
declarant's opportunity to observe . . . In some cases, however, the substance of the
statement itself does contain words revealing perception. A statement such as, “I saw
that blue truck run down the lady on the corner,” might stand alone to show perception if
the trial judge finds, from the particular circumstances, that he is satisfied by a
preponderance that the declarant spoke from personal perception . . . [Id. at 511-512.]
The court in Miller found no evidence to support an inference that
the declarant actually saw what had happened, that he could have
seen it, or that he was excited. The court treated the issue of
personal knowledge as an FRE 104(a) issue for the judge. Most other
opinions on this point agree. Miller v. Crown Amusements, Inc.,

536

supra, 821 F. Supp. at 705-706 (“the Court finds by a

preponderance of the evidence that the declarant observed the
accident. The caller specifically stated, '[W]e noticed [the truck
sideswipe a person]' thus indicating actual perception.”). Since Miller,
courts are no longer hesitant in admitting excited utterances made by
unidentified bystanders. United States v. Montero-Camargo, 177 F.3d
1113, 1123 (9th Cir. 1999) (“[T]rustworthiness of the statement is
bolstered by the declarant's status as a mere bystander with no
apparent motivation for providing false information.”); Miller v. Crown
Amusements, Inc., 821 F. Supp. 703 (S.D. Ga. 1993) (unidentified
911 caller).
e. Criticism of FRE 803(1) and (2)
There is much to criticize about the purported reliability rationale of
FRE 803(1) and (2). Judge Posner put the criticism cogently in a
recent case:
The rationale for the exception for a “present sense impression” is that if the event
described and the statement describing it are near to each other in time, this “negate[s]
 the likelihood of deliberate or conscious misrepresentation.” Advisory Committee Notes
to 1972 Proposed Rules. I don't get it, especially when “immediacy” is interpreted to
encompass periods as long as 23 minutes, as in United States v. Blakey, 607 F.2d 779,
785-786 (7th Cir. 1979), 16 minutes in United States v. Mejia-Velez, 855 F. Supp. 607,
614 (E.D.N.Y. 1994), and ten minutes in State v. Odom, 316 N.C. 306, 341 S.E.2d 332,
335-336 (N.C. 1986). Even real immediacy is not a guarantor of truthfulness. It's not true
that people can't make up a lie in a short period of time. Most lies in fact are
spontaneous. See, e.g., Monica T. Whitty et al., “Not All Lies Are Spontaneous: An
Examination of Deception Across Different Modes of Communication,” 63 J. Am. Society
of Information Sci. & Technology 208, 208-209, 214 (2012). . . . Suppose I run into an
acquaintance on the street and he has a new dog with him—a little yappy thing—and he
asks me, “Isn't he beautiful”? I answer yes, though I'm a cat person and consider his dog
hideous. . . .
It is time the law awakened from its dogmatic slumber. The “present sense impression”
exception never had any grounding in psychology. It entered American law in the
nineteenth century, see Jon R. Waltz, “The Present Sense Impression Exception to the
Rule Against Hearsay: Origins and Attributes,” 66 Iowa L. Rev. 869, 871 (1981), long
before there was a field of cognitive psychology; it has neither a theoretical nor an
empirical basis; and it's not even common sense—it's not even good folk psychology.
As for FRE 803(2):
. . . .While psychologists would probably concede that excitement minimizes the
possibility of reflective self-interest influencing the declarant's statements, they have
questioned whether this might be outweighed by the distorting effect of shock and
excitement upon the declarant's observation and judgement. [United States v. Boyce,
742 F.3d 792, 800-802 (2014) (Posner, J., concurring) (quoting 2 McCormick on
Evidence §272, p. 366 (7th ed. 2013))].
On the other hand, Judge Posner's criticism might not itself be
above criticism. No hearsay exception is based on the idea that it is
perfectly reliable, in some absolute sense. That people are capable of
fabricating very quickly does not tell us much about the reliability of
spontaneous statements relative to statements made after

537

considerable time to fabricate. Compare a present sense

impression to the admissible nonhearsay testimony of a witness who
has had months to think about her testimony and perhaps also had
coaching by lawyers. And Posner's critique does not tell us much
about how to balance the unreliable aspects of spontaneous hearsay
against the cost of losing the evidence by excluding it. Here, it is also
worth noting that Posner does not actually advocate excluding
spontaneous hearsay statements; ultimately, his critique winds up in
a very debatable recommendation of admitting more hearsay
statements of all kinds under an expanded residual exception. (See
FRE 807, below.) We discuss this issue in the reflection section at the
end of this chapter.

KEY POINTS
1. Present sense impressions, FRE 803(1), describe an event or
occurrence while it is happening or very shortly thereafter,
while excited utterances, FRE 803(2), relate to a startling
event or occurrence and are made before the stress of
excitement wears off.
2. Present sense impressions, FRE 803(1), and excited
utterances, FRE 803(2) are considered reliable hearsay
because the spontaneity, near-contemporaneous timing, and,
under FRE 803(2), the stress of excitement suggest that the
declarant lacks an opportunity to fabricate and perhaps is
better able to remember what she describes. These factors
may be pertinent to considering whether too much time has
elapsed between the event and the statement. But these
factors do not address reliability concerns stemming from
perception and narration problems.
3. The scope of subject matter that can be included in an FRE
803(2) statement “relating to a startling event or condition” is
deemed broader than the permissible scope of an FRE 803(1)
statement “describing or explaining an event or condition.”
4. The judge may use the statement—either in conjunction with
other evidence, or by itself—to determine whether the factual
elements of the hearsay exception have been met, including
whether and when the event or condition occurred, and
whether the declarant had firsthand knowledge of the event or
condition. These issues will be decided by the judge pursuant
to FRE 104(a).
 PROBLEMS
8.46. In the case involving the pedestrian suing the driver of the
SUV (pages 443, 529), George would testify to the following:
(Each statement is an alternative, not cumulative.)
(a) Sally was standing right next to me on the street corner,
and she said, “That gray SUV just ran a red light and hit a
pedestrian.” I looked up and saw the SUV stopped near a
person lying on the street.

538

(b) I was at my desk when Sally came running into the office,
out of breath and very agitated. She said, “You won't
believe what I just saw. A gray SUV ran a red light and hit
a pedestrian!”
(c) Sally came back to the office from lunch and calmly
stated, “I was on my way back from lunch when I saw yet
another SUV running a stoplight and knocking someone
down. Go figure. I spoke with the police for 30 minutes.”
8.47. Victor was arrested by a group of law enforcement officers
who burst into the apartment, guns drawn, in which Victor was
meeting with others. The officers shouted at the group to “show
their hands”; asked, “Is this dope, is this dope?”; and pointed to
money inside a car seat and asked, “Is that money? How
much?” Victor responded, “I was buying a truck, man.” Victor
offers the officers' authenticated tape recording of his
statement at his trial. Admissible?
8.48. Return to Problem 3.2, Pedroso v. Driver, at page 148. A
teacher at Paul's school testifies for plaintiffs that Ann, who
was on the school bus with Paul, was playing during recess in
the schoolyard several days after the accident. Ann suddenly
started to cry and exclaimed, “That's the bus driver who hit
Paul on the side of the road” just as Denise Driver was walking
by. Admissible?
8.49. Defendant Louis D'Onofrio is charged with illegal possession
of a firearm as a convicted felon and two counts of brandishing
a deadly weapon, one occurring on January 24 and one on
January 26.
(a) A 911 call was made by Mrs. D'Onofrio from her home at
2:15 . . on January 26. She told the operator that her
husband, Louis, was drunk and threatening to shoot her.
The operator could hear Louis yelling loudly, but she
heard no threats. The operator asked whether her
husband had a weapon. Mrs. D'Onofrio said that he has a
gun and is pointing it at her. Can the tape recording of this
conversation be admitted at defendant's trial?
(b) Police officers arrived at the D'Onofrio home at 2:30 . .
Louis D'Onofrio had just left the house with the gun,
according to Mrs. D'Onofrio, who was upset and crying.
She stated that she and Louis had been arguing on the
evening of January 24; that he held the gun and
threatened to kill her during the argument; that when she
returned from work on January 25, Louis had the gun and
killed the family cat; that he spent the evening of January
25 drinking and that she had called 911 at 2:15 . . when
he began to make more threats. Mrs. D'Onofrio
consented to a search for a gun, but none was found.
Defendant had no gun in his possession when he was
arrested. Mrs. D'Onofrio now refuses to testify, claiming
spousal privilege, and there is no other evidence that
defendant possessed a firearm. Can the officers testify
about her statements at defendant's trial?

5. Explanation of FRE 803(3): Declarant's Statement of His Then-

Existing State of Mind
FRE 803(3) PROVIDES:
(3) Then-Existing Mental, Emotional, or Physical Condition. A statement of the
declarant's then-existing state of mind (such as motive, intent, or plan) or

539
 emotional, sensory, or physical condition (such as mental feeling, pain, or bodily
health), but not including a statement of memory or belief to prove the fact remembered
or believed unless it relates to the validity or terms of the declarant's will.

a. Preliminary Factfinding
The factual requirements for statements of state of mind are:

the contents of the statement express the declarant's state of

mind that is currently existing at the time of the statement;
state of mind may include motive, intent, plan; emotional,
sensory, or physical condition; mental feeling, pain, or bodily
health; and
a state of mind of memory or belief may not be used to prove the
fact remembered or believed unless it relates to the validity or
terms of the declarant's will.

As with all exceptions that depend on content as a categorical

requirement, the judge can determine content from proof of the
statement itself. Thus, the statements “I like Harold the best of all my
children” or “I am miserably unhappy at work” fall within the FRE
803(3) exception, and will be admissible for their truth, if those current
feelings are relevant. No other preliminary facts concerning the
declarant or the circumstances within which the statement was made
are required.
Notice that Rule 803(3) defines state of mind broadly to include any
sensation present in the mind of declarant. The state of mind of a
party, or of any person who becomes involved in litigated events, may
be relevant at trial: For example, a criminal defendant's state of mind
of “love” or “hate” can be relevant to show motive for the crime; a civil
defendant's state of mind of “knowledge” can be relevant to prove
notice; and in any type of case, a witness's state of mind of “bias” or
“malice” toward one of the parties can be relevant to impeach the
witness's credibility. Statements of an official representative of a
corporate or governmental entity are admissible under FRE 803(3) to
prove the motives underlying the business decisions of the entity.
Municipal Revenue Service, Inc. v. Xspand, Inc., 700 F. Supp. 2d
692, 705-706 (M.D. Pa. 2010).
 But the scope of the FRE 803(3) exception is specifically limited.
Statements of memory or belief may be used to prove a declarant's
then-existing relevant state of mind, but may not be admitted to prove
the fact remembered or believed (unless that fact relates to the terms
or validity of the declarant's will). This exclusion of facts remembered
or believed can be confusing at first and is sufficiently important to
understanding the limits of the rule that we discuss it in detail in the
next subsection.
b. Exclusion of “Facts Remembered or Believed”
FRE 803(3) provides that statements of memory or belief to prove
the fact remembered or believed may not be admitted through the
state-of-mind exception.5 Why are such statements of memory and
belief excluded from this hearsay exception?

540

Consider the drafting problem involved. A person's subjective

mental state (such as his intent, emotion, physical sensation) is very
difficult to prove. In the absence of a statement by the person
describing her own thought or feeling, we would be limited to
circumstantial evidence. A person's own statement of his subjective
mental state is thus potentially valuable, highly probative evidence, if
that mental state is relevant to a case.
At the same time, the hearsay rule is designed to restrict the
admissibility of facts asserted by persons who are not presented at
trial as live witnesses. The problem is that the kinds of fact assertions
that the hearsay rule is designed to exclude—events or conditions
that occurred outside the mind of the hearsay declarant—are known
to the hearsay declarant as thoughts in her mind. These thoughts
take the form of beliefs or memories. Even recollections of one's own
past subjective mental states can be problematic: How well do you
remember you moods, feelings, or intentions of the past week,
month, or year? Your current memory of your own past subjective
mental states can be unreliable due to the limitations of human
memory.
 The intent of the state-of-mind exception is to admit statements of
the declarant describing her subjective mental state at the moment of
speaking or writing, but to exclude (1) current memories or beliefs
about events or conditions outside of the declarant's mind, and (2)
current memories or beliefs about the declarant's own past mental
states. Such a rule is not easily written, but the FRE drafters did a
good job in describing examples of current subjective mental states,
while expressly excluding “statements of memory or belief to prove
the fact remembered or believed.”
c. Justification for the State-of-Mind Exception
A statement relevant to prove the declarant's current state of mind
requires inferences about the declarant's sincerity and narration. The
fact of consequence is what is going on inside the mind of the
declarant, and the declarant's statement must sincerely and
accurately express what that is. The declarant is not perceiving
anything outside the declarant's own mind, so there is no traditional
risk of misperception. And, since the statement expresses the then-
existing mental state, there is no memory problem. Thus, the primary
rationale for the state-of-mind exception is that there are no
perception or memory dangers. Under the reliability rationale of the
Rule 803 exceptions, the absence of these dangers provides
circumstantial guarantees of trustworthiness, and thus diminishes the
importance of cross-examining the declarant.
There is, however, a weakness in this trustworthiness justification.
Although it has been said that statements that express a present
state of mind are likely to be spontaneous and therefore sincere,
there is no independent requirement of proving spontaneity and there
is no limit to the circumstances in which such statements can be
made. The rule thus offers no purported safeguards against sincerity
and narration dangers. The statement “I love my spouse” may be
spontaneous, or it may be calculated to mislead if the declarant has a
reason to want to create the false impression of affection. There are
no definitive means of proving that the declarant really has the mental
state that is being spoken about. Thus, the sincerity risks in FRE
803(3) statements are substantial. If the statement is not
spontaneous, then the declarant has the opportunity to fabricate.

541

The categorical approach to hearsay exceptions should in theory

preclude courts from examining this latter issue: There is no element
built into FRE 803(3) that requires spontaneity or otherwise
addresses sincerity concerns. Nevertheless, some courts have taken
it upon themselves to do so. See United States v. Secor, 73 Fed.
App'x 554, 566-567 (4th Cir. 2003) (treating FRE 803(3) as a subset
of FRE 803(1) and adding requirement that the declarant “must not
have had time to reflect and to fabricate”). These cases usually
involve offers by criminal defendants of their own statements made
either long after the crime was committed, when their current states
of mind may no longer be relevant, or after they suspect they are
under investigation and have a clear motive to represent their current
mental state of “innocence.” But see United States v. DiMaria, 727
F.2d 265, 271-272 (2d Cir. 1984) (although an accused can easily
fabricate a declaration of mental state, when the statement falls within
the terms of FRE 803(3) “its truth or falsity was for the jury to
determine”).
Necessity may justify the admission of state-of-mind statements
despite their sincerity risks. Mental states are a pervasive part of our
substantive law and a person's own statements are a primary source
of evidence about mental states. However, the state-of-mind
exception is used beyond its necessity in proving essential elements,
and people's conduct can be more probative than people's words in
assessing mental states.
d. State-of-Mind Utterances Are Classified as Either Direct or Circumstantial
Some utterances directly assert the declarant's mental state. For
example, to prove that a witness has a motive to lie in favor of
plaintiff, the defendant could offer evidence that the witness once
said, “I can't stand the defendant.” This is a direct statement of the
witness's feelings and state of mind. But what if the witness said,
“The defendant is a vile person who has done me great harm”? This
statement is not a direct assertion of a mental state, but it probably
reflects a state of mind of intense dislike. Because the mental state is
not directly asserted, courts and commentators call this type of
statement “circumstantial evidence” of the witness's state of mind.
Utterances that are circumstantial evidence of the declarant's state
of mind are not offered to prove the truth of the literal matters they
assert. The witness's statement is not offered to prove that the
defendant is vile, or that the defendant has done great harm to the
witness. Thus, some courts and commentators have taken the
position that such utterances are nonhearsay. But unlike the
categories of nonhearsay that we discussed at pages 453-59, supra
—effect on listener and legally operative facts—the relevance of
state-of-mind utterances does involve potential sincerity and narration
risks. If the witness in our hypothetical is lying or joking, and does not
sincerely believe that the defendant is vile and has done wrong, then
the witness's statement is not relevant to prove a motive to lie in favor
of the plaintiff. Therefore, utterances that are circumstantial evidence
of state of mind are not a true nonhearsay category.
FRE 803(3) provides such a broad hearsay exception for
statements of a declarant's then-existing state of mind that labeling
them as direct or circumstantial, hearsay or nonhearsay, is purely
academic in terms of admissibility under the Federal Rules. United
States v. Quinones, 511 F.3d 289, 312 (2d Cir. 2007) (under either
theory, a

542

state of mind can be proved circumstantially by statements that are

not intended to assert the truth of the fact being proved).

6. FRE 803(3): Relevant Uses of State-of-Mind Evidence

a. Future and Past State of Mind of the Declarant
A declarant's current statement of state of mind may be just one
step in the inferential process to establish some fact of consequence.
Frequently, inferences both forward and backward in time are made
from statements of currently existing mental states. For example,
consider a case in which a criminal defendant wishes to establish that
some third person had a motive for killing the victim and that the third
person was in fact the killer. The third person's statement, “I hate the
victim,” made a week before the killing, is admissible under FRE
803(3) to prove that one week before the killing the third person hated
the victim. From hatred at that time we infer a future state of mind—
there was probably still hatred a week later, when the killing occurred.
The inference is based on the generalization that strong emotional
feelings about an individual are not likely to change over a relatively
short period of time. Hatred a week later is relevant to show a motive
to harm the victim, and from motive we infer the possibility that the
third person killed the victim.
State of mind can also be used to prove a past state of mind without
relying on the declarant's perception or memory. Consider in the
preceding murder case that the third person said two days after the
murder, “The thought of the victim fills me with rage.” The present
state of mind of “rage” would be relevant to prove that the declarant
was probably also angry at the victim two days earlier, again because
of a generalization about the stability of such states of mind. If angry
two days earlier, the declarant may have had a motive to kill the
victim at that time.
In these cases, the court will examine the circumstances to decide
whether the inference of continuity of state of mind is reasonable.
Some expressions of emotion last a lifetime, while others may be unlikely to persist long
after their triggering events. Some professions of state of mind may be too vague or
tenuous to support an inference of continuity, particularly where there is a significant
lapse of time between the declaration and the mens rea at issue. Intervening events
may also signal a possible change in the declarant's state of mind.” [United States v.
Farhane, 634 F.3d 127, 173 (2d Cir. 2011).]
Statements made months after the time at which the declarant's state
of mind was relevant have been held too remote to be probative.
United States v. Reyes, 239 F.3d 722, 743 (5th Cir. 2001).
b. Statements of Intent to Prove the Declarant's Subsequent Conduct
 Mary's statement on Monday “I plan to leave on my vacation to
Hawaii on Tuesday” may be relevant to prove that she in fact left on
Tuesday, and that she went to Hawaii. We first must infer the truth of
the matter she asserts—that on Monday,

543

Mary sincerely planned to leave on Tuesday for her vacation in

Hawaii. Then, from this state of mind, we can infer that she probably
had the same intent on Tuesday and, then, that she carried it out and
did go to Hawaii.
The generalizations underlying the inference from Mary's state of
mind to her future conduct concern the behavior of people; that
people with intentions or plans of the type that Mary had generally do
the things that they intend or plan to do. The probability of each
inference from intent to future conduct will vary depending on the
nature of the intended activity and the time lag involved. In some
situations, intent may be stated so far in advance, or may be so
contingent, that there is little probative force to the generalization that
people act in conformity with intent. What is important is that the
inferences from Mary's state of mind to her conduct do not require
any further evaluation of Mary's testimonial qualities.
FRE 803(3) does not itself establish the relevance of statements of
intent to prove the declarant's subsequent conduct. That relevance is
a matter of common sense generalizations and FRE 401-402. But
FRE 803(3) makes clear that such statements fit within the hearsay
exception. FRE 803(3) can thus be used to overcome a hearsay
objection against using Mary's statement of intent to show that she
had that intent and acted on it later. Staelens ex rel. Estate of
Staelens v. Staelens, 677 F. Supp. 2d 499, 503 (D. Mass. 2010)
(decedent's statement that he continued to name his former wife as
the beneficiary to his 401(k) account because he wanted to be sure
she would be okay admissible to prove that naming her was not a
mistake).
c. Distinguishing State of Mind from Past Facts
 We've already discussed that FRE 803(3) creates an exception for
presently existing, subjective mental states; but that it excludes past
facts, whether facts external to the declarant that the declarant
remembers or believes, or memories of the declarants' own past
mental states. A problem arises when both the permitted mental
states and the excluded past facts are contained in the same hearsay
statement.
It is common that past facts are asserted in the context of state-of-
mind evidence; but proof of the truth of the past facts is not an
acceptable use of FRE 803(3). To show the bias of Emily, a witness
against John, evidence is offered that Emily said outside of court, “I
am angry at John because he stole all of my money last year.” The
statement about the theft is a statement of memory or belief. FRE
803(3) could not be used if the statement is offered to prove that John
did in fact steal the money, the fact remembered or believed. Why?
The past fact of theft is an event outside of Emily's mind. Her
accurate perception and memory would be necessary to the
statement's relevance. Since the justification for the FRE 803(3)
exception is that these risks are nonexistent, the exception cannot be
used when those risks are present. The same is true if Emily, the
declarant, said, “I believe that John stole all my money last year.”
United States v. Cohen, 631 F.2d 1223 (5th Cir. 1980) (The exception
“does not permit a declarant to relate . . . why he held the particular
state of mind, or what he might have believed that would have
induced the state of mind.”).
It is possible that if the past fact of theft is not relevant to the
litigation, then the declarant's entire statement might be admissible
under FRE 803(3) simply to prove

544

the relevant fact—Emily's anger at John. Theft would be a good

reason to feel angry and it makes her statement all the more
probative of her relevant state of mind of bias against John. Indeed,
the past fact of theft need not even be true; if Emily believes it, her
state of mind of anger is more probable. Finally, even if the theft is an
issue in the case, it is possible that the judge could allow the entire
statement and instruct the jury that the theft assertion is admissible
only to the extent that it sheds light on the degree of Emily's anger,
and not to prove any facts about an alleged theft.
FRE 403 might be the basis for objection if the statement about the
theft raises dangers of unfair prejudice against a party or confusion of
the issues. It is also possible that the court could decide to split the
statement up—admitting “I am angry at John,” but excluding
“because he stole money from me.” This would depend on FRE 403
considerations.
All statements about past facts contain an implicit “I remember,” “I
think,” or “I believe.” Admitting such statements as expressing a state
of mind of “memory” or “belief” would swallow the hearsay prohibition.
For that reason, as discussed, FRE 803(3) excludes statements of
memory or belief to prove the fact remembered or believed. However,
there may be circumstances where a statement seemingly about
memory or belief is offered to prove a relevant mental state—and can
thus be admitted over a hearsay objection under FRE 803(3). For
example, the statement of belief, “I believe my brakes are bad,” or the
statement of memory, “I remember that my brakes squeaked
yesterday,” may be used to prove the declarant's current state of
mind of knowledge (notice), but not the fact that the brakes are bad.
d. Statements About the Declarant's Will
FRE 803(3) carves out a single narrow exception to the exclusion of
statements of memory or belief to prove the fact remembered or
believed. The FRE 803(3) hearsay exception extends to, and thus
admits over a hearsay objection, statements of fact about the
declarant's will. “I have left my entire estate to Harold in my will” is
admissible over a hearsay objection to prove the terms of the
declarant's will.
Statements of memory or belief used to prove facts concerning the
validity and terms of a declarant's will do require reliance on the
declarant's memory and perception, as well as sincerity and narrative
ability. Making a will is an external event that the declarant has
perceived and remembers. But admission of these statements is
justified by the likelihood that persons will speak carefully about their
wills and the necessity that arises from the unavailability of the
declarant.
e. The Hillmon Case: Using the Declarant's Statement of Intent to Prove the
Conduct of Another
Prior to the Federal Rules of Evidence, some courts applied the
state-of-mind exception more broadly (and some courts still do). One
of the leading state-of-mind cases, Mutual Life Insurance Co. of New
York v. Hillmon, 145 U.S. 285 (1892), presents a challenging
interpretation of the exception. Hillmon was an action by Sallie
Hillmon to recover the proceeds of life insurance policies on the life of
her husband

545

John Hillmon, who, she alleged, died in Crooked Creek, Colorado,

on March 17, 1879. The principal issue in the case was whether a
body found in Crooked Creek was Hillmon's. The plaintiff contended
that it was. The defendant insurance companies tried to establish that
Hillmon was not dead. They alleged that a man named Walters had
traveled to Crooked Creek with Hillmon and that the body was
Walters's, not Hillmon's. Their evidence included the contents of a
letter Walters had written to his sister:
Dear sister and all: I now in my usual style drop you a few lines to let you know that I
expect to leave Wichita on or about March the 5th, with a certain Mr. Hillmon, a
sheeptrader, for Colorado or parts unknown to me. I expect to see the country now.
News are of no interest to you, as you are not acquainted here. I will close with
compliments to all inquiring friends. Love to all. I am truly your brother, Fred. Adolph
Walters. [Id. at 288.]

The trial court excluded proof of this and a similar letter from
Walters as hearsay, and the jury found in favor of Sallie Hillmon. In
reversing this judgment, the Supreme Court explained why proof of
the letters was admissible:
The letters in question were competent, not as narratives of facts communicated to the
writer by others, nor yet as proof that he actually went away from Wichita, but as
evidence that, shortly before the time when other evidence tended to show that he went
away, he had the intention of going, and of going with Hillmon, which made it more
probable both that he did go and that he went with Hillmon, than if there had been no
 proof of such intention. In view of the mass of conflicting testimony introduced upon the
question whether it was the body of Walters that was found in Hillmon's camp, this
evidence might properly influence the jury in determining that question. [Id. at 295-296
(emphasis added).]

Walters's Future Conduct. It is correct that Walters's statement in

his letter is relevant to prove his own intent to leave Wichita and to go
to Colorado. The Court held as much in the same paragraph—
Walters's statement would be admissible to prove his own intent and
his own future conduct.
Hillmon's Future Conduct. Some courts, in apparent reliance on
the italicized portions of the above quotation, have interpreted
Hillmon to stand for the proposition that Walters's letters could also
be used to show Hillmon's future conduct—that Hillmon went to
Crooked Creek with Walters. As a result, these courts have used a
declarant's statement about what a third person plans to do to prove
what that third person in fact did, and they have justified admission of
these statements under the state-of-mind exception. See United
States v. Pheaster, 544 F.2d 353 (9th Cir. 1976) (statement of
declarant's intent to meet Angelo to get drugs admissible to show that
declarant did meet Angelo); People v. Alcalde, 148 P.2d 627 (Cal.
1944) (victim's statement of intent to go out with Frank admissible to
prove that Frank went out with victim and thus had the opportunity to
commit murder).
Such use of this exception is problematic, however, because the
relevance of Walters' assertion about Hillmon is necessarily
dependent on Walters's belief about Hillmon's state of mind to travel
to Colorado and to travel with Walters. In other

546

words, Walters's statement about Hillmon is a statement of memory

or belief to prove the fact remembered or believed: what Hillmon's
plans were. All the hearsay dangers are present in Walters's
statement: His belief must be accurate, based on Walters's
perception and memory of some past fact—something that Hillmon
said or did to indicate that he was going to Colorado and wanted to
travel with Walters. Otherwise, Walters's statement about leaving
Wichita with Hillmon for Colorado is sheer speculation and cannot be
relevant. If Walters's letter directly expressed the fact on which his
knowledge of Hillmon's intent was based (e.g., Hillmon had invited
Walters to go with him), such an additional statement would be a
statement of memory or belief offered to prove the fact believed. FRE
803(3) may not be used to admit such a past fact, as we know.
In Walters's letter, past facts about Hillmon's past state of mind and
conduct are implied, not expressed, by Walters's plan to travel “with
Hillmon.” Still, the relevance of Walters's own state of mind to prove
the state of mind of another person (Hillmon's intent to travel) or the
future conduct of another person (Hillmon did travel to Crooked
Creek) depends on an inference about Walters's perception and
memory of some past fact about that other person. Permitting the
state-of-mind exception to admit statements for purposes that so
clearly depend on the declarant's perception and memory of past
facts would undermine the policies of the rule.6
Recent Interpretations of Hillmon. A number of federal courts
have held that FRE 803(3) does not support the use of a declarant's
state-of-mind declaration to prove the conduct of a third person. The
House Judiciary Committee approved the Rule 803(3) exception
under the explicit assumption that the rule would limit the Hillmon
doctrine to use of the declarant's state of mind to prove only the
declarant's own future conduct. Other courts, however, have admitted
declarants' statements of intent to travel with or to meet a third person
against that third person, to prove that the declarant and that person
did in fact travel together or meet. United States v. Barraza, 576 F.3d
798, 805 (8th Cir. 2010) (admitting statement in declarant's diary that
she intended to travel to Mexico with Barraza); United States v.
Johnson, 354 F. Supp. 2d 939, 962 (N.D. Iowa 2005) (discussing
collected cases). Most of these decisions have required independent
corroboration of the third person's conduct. See Joseph A. Devall, Jr.,
Comment, 78 Tul. L. Rev. 911 (2004) (surveying split in state court
over Hillmon doctrine). The problem with these decisions is that if we
commit to the trial judge's discretion the evaluation of the reliability of
an inference from intent (or belief) backward to a third person's past
act that caused the intent (or belief), we are abandoning FRE 803(3)
as we know it in favor of judicial discretion.
Another possible scenario in cases like Hillmon is to rely on the
declarant's intent to act only if a specific person acts as well. For
example, would it be appropriate to infer that Walters planned to
leave Wichita and travel only if he went with Hillmon?

547

If so, since Walters was not in Wichita, the inference could be

made, without reliance on Walters's perception or memory, that
Hillmon must have decided to leave and travel with Walters. Another
ingenious solution to the problem of using state-of-mind statements to
prove the conduct of third persons was upheld in United States v.
Persico, 2011 WL 1661420, at *12-13 (2d Cir.). In a prosecution for
murder, the court upheld the admission of testimony by the victim's
wife that, on the day he disappeared, the victim telephoned her to say
that he “was going to meet” the defendant Persico [the alleged
murderer] later that day. This statement, the court held,
was in no way offered to show that in fact “Persico met [the victim] at the Shore Road
location”. . . rather, that statement was properly admitted to show [victim's] intent to meet
Persico there and to support an inference that [victim] acted in furtherance of that intent,
from which the jury could reasonably infer that [victim] had communicated to Persico
that [victim] would be at Shore Road expecting to meet Persico there.
Which inference do you think is more likely? That Persico had
engaged in some past act to lure his victim to Shore Road? Or that
the unsuspecting victim set up the meeting on his own?

KEY POINTS
1. Statements expressing a declarant's current state of mind are
admissible under FRE 803(3) to prove that state of mind, if it is
relevant in the case. States of mind include physical or mental
feelings or sensations, emotions, intentions, and motivations,
 among other things. The state of mind must have existed at
the time the declarant expressed it.
2. State-of-mind statements admissible under FRE 803(3) do not
include assertions of past facts of any kind, including past
states of mind or things that caused a past or present state of
mind. The state-of mind exception also excludes opinions,
perceptions, beliefs, or memories about facts external to the
declarant. If statements of state of mind were used to include
these matters, this exception would swallow the hearsay rule.
3. Some statements mix an admissible state of mind statement
with an assertion about a past fact or fact external to the
declarant. In such instances, only the part of the statement
dealing with the state of mind is admissible, assuming it is
relevant by itself.
4. Statements of a person's intention to do something come
within 803(3), and such statements are often relevant to prove
that the person subsequently carried out his intention and did
the thing. Some courts permit statements of a declarant's
intent to be used to prove the future conduct of a third person,
as well as the declarant's conduct, if there is corroboration.
5. Statements of past state of mind and past facts relating to the
validity and terms of declarant's will may, however, be admitted
under FRE 803(3).

548

PROBLEMS
8.50. William Winchell has just testified against Don Davis in a civil
case brought by Paul Peterson. On cross examination, Davis'
lawyer asks:
Q: Isn't it a fact that two years ago you told Don Davis that “you
would get even with him” for giving you bad investment advice?
Counsel for Peterson: Objection, relevance.
 Counsel for Davis: It's relevant to show bias your honor, that this
witness has a motive to lie against my client.
The Court: Overruled.
Counsel For Peterson: Then I object that it's hearsay.
How should the court rule?
8.51. The United States has filed an interpleader action to determine
the true owner of the boxing championship belts awarded to
boxer Roberto Duran. Duran claims they were stolen from his
house by his brother-in-law in 1993. The FBI recovered the
belts in 2003 from businessman Louis Baez, who claimed that
the belts were not stolen. To prove theft, Duran and a number
of witnesses would testify that in 2000, the brother-in-law
apologized to Duran for stealing the belts. Admissible? Would
the statement of apology alone be admissible?
8.52. Lyons Partnership owns all of the intellectual property rights to
the character “Barney,” the well-stuffed Tyrannosaurus Rex
with a green chest and stomach, green spots on its back, and
yellow “toeballs.” Barney is readily recognizable to young
children. The Barney and Friends TV show is viewed weekly
by 14 million children, and over 50 million copies of Barney-
related videos have been sold. Lyons controls the “live”
appearances of the Barney character played by adults in
costume, and Lyons does not license Barney costumes.
Lyons filed suit against Nelson Costumes, alleging trademark
infringement arising out of rental of Nelson's costume, “Duffy
the Dragon,” to the public. Lyons had to prove, under the
Lanham Act, that the defendant is infringing its valid mark by
creating consumer confusion. Proof of actual confusion is often
paramount to the success of such a claim. Lyons offered three
types of evidence of confusion at trial, all of which the district
court excluded as “unreliable hearsay.” Was this error? The
evidence offered was as follows:
(a) Testimony from parents that when they rented the Duffy
costume for their children's birthday parties, they were
confused because the costume looked just like Barney.
 (b) Testimony from a principal of an elementary school that
when she wore the Duffy costume at a school rally, the
children shouted, “Barney, Barney, Barney!”
(c) The results of a survey conducted by Lyons at several
shopping malls. Shoppers were shown a photograph of
the Duffy costume and asked whether they could identify
the character. Fifty percent identified the character as
Barney; 50 percent had no idea who the character was.

549

8.53. Return to Problem 3.2, Pedroso v. Driver, at page 148. Joan

testifies for defendants that she also rode the same school bus
as Paul and Tom, and that Paul and Tom always got off at the
same stop. On the day of the accident, Tom said to Joan, “Paul
and I are going to play tag when we get off the bus today.”
Admissible?

7. Explanation of FRE 803(4): Statements Made for Medical

Diagnosis or Treatment
FRE 803(4) states:

(4) Statement Made for Medical Diagnosis or Treatment. A statement that:

(A) is made for—and is reasonably pertinent to—medical diagnosis or treatment;
and
(B) describes medical history; past or present symptoms or sensations; their
inception; or their general cause.

a. Preliminary Factfinding
The factual requirements for FRE 803(4) statements are:

the statement must be made for the purpose of medical

diagnosis or treatment;
the statement must describe medical history, past or present
symptoms or sensations, or the inception or the general cause of
the symptoms or sensations; and
the statement is reasonably pertinent to diagnosis or treatment.
There is some overlap between this exception and statements of
mental state admitted under FRE 803(3). A patient's description of
currently existing sensation (“I feel dizzy”) could fall within both. But
FRE 803(4) also admits statements to prove current symptoms that
exist outside the mind of the declarant (“The thermometer says I have
a temperature of 102”) and to prove past symptoms as well (“I had a
runny nose yesterday, and I coughed a lot”). The relevance of these
statements depends upon the accuracy of the declarant's perception
and memory, as well as sincerity and narration. The perceived
reliability of these hearsay statements is that the declarant's motive to
obtain medical treatment provides a strong incentive to present
truthful and accurate information, thus reducing sincerity risk.
FRE 803(4) does not specify that the declarant be the patient,
relating the declarant's own medical history and symptoms. Family,
friends, nurses, and other medical personnel may convey information
for purposes of medical treatment that will be admitted under FRE
803(4). Campos v. MTD Products, Inc., 2009 WL 425012, at *12
(M.D. Tenn.) (statements by immediate family members included
under this exception). Even an unidentified declarant speaking to an
ambulance crew may qualify under the exception if the court is
persuaded that the declarant spoke for purposes of securing medical
care for the patient. Bucci v. Essex Ins. Co., 393 F.3d 285, 299 (1st
Cir. 2005). And if the patient is speaking to an intermediary—a child
to a parent, for example, so that the parent can relate the symptoms
to a doctor—the terms of the exception could still apply so long as the
purpose of seeking medical help exists. “[A]dmissibility . . . is

550

based, not on the person to whom made, but on the purpose for
which they are made, which gives rise to the presumption of
reliability.” Williams v. Virgin Islands, 271 F. Supp. 2d 696, 704-705
(D.V.I. 2003).
Courts have applied FRE 803(4) to statements made to
psychotherapists, social workers, pharmacists, and other health care
personnel, not just physicians and nurses. However, FRE 803(4) has
been interpreted to apply only to statements by persons seeking care,
not giving care. Thus, statements made by doctors to patients, by
consulting physicians to treating physicians, are not within the FRE
803(4) exception. Field v. Trigg County Hosp., Inc., 386 F.3d 729,
735-736 (6th Cir. 2004).
b. Justification for the Admissibility of Statements for Medical Purposes
The justification for this exception rests on the declarant's “selfish
motive to be truthful” in making the statement. The assumption is that
a person seeking medical diagnosis and treatment is highly motivated
to speak carefully and honestly about symptoms and conditions in
order to receive effective medical care. Thus, even though the
declaration may not be spontaneous, and even though there may be
perception and memory risks when past conditions and causes are
related, the statement bears less danger of insincerity and
inaccuracy.
Can a motive to be truthful when speaking with a physician always
be assumed? According to some surveys, between 13 and 32
percent of patients lie or stretch the truth to their doctor, in particular
about smoking, risky sex, alcohol and drug use, and taking
medications as prescribed
http://www.newsweek.com/2009/01/07/little-white-coat-lies.html.
c. Statements About the Cause or External Source Must Be “Pertinent”
It is common for persons seeking medical treatment to describe
how their injury occurred (“I was hit from behind while sitting in my
car, and my neck aches terribly”). FRE 803(4) explicitly includes such
hearsay statements to prove the truth of the matters they assert (the
declarant was hit from behind in her car) if they are “reasonably
pertinent to diagnosis or treatment.” Sanders v. The Ritz-Carlton
Hotel Co., 2008 WL 4155635, at *2 (S.D.N.Y.) (plaintiff statement in
his medical records that he “tripped” rather than “slipped” when he
injured his ankle describe the general cause of his injury).
But sometimes, patients' statements make more specific attributions
of causation, naming specific persons or entities that caused them
harm. Should these statements also be admitted by FRE 803(4)? In
general, pertinence is determined from testimony of the medical
professional as to the type of information reasonably relied on by a
physician in treatment or diagnosis. If the declarant's statements are
not medically pertinent, there is some reason to suspect the
declarant's motivation in speaking and thus to suspect lack of
sincerity. Thus, a statement such as “I was hit from behind by a red
Mustang, with license plate number 445HCN, while I was sitting in my
car” is not likely to fall within Rule 803(4).
The issue of pertinence frequently arises in cases of child abuse
and molestation when the victim names the abuser to the health care
professional. In United States v.

551

Tome, 61 F.3d 1446 (10th Cir. 1995), the child declarant's

statements identifying her father as the abuser were held to fall within
the “pertinence” requirement. Quoting its own precedent, the court
reasoned that
[a]ll victims of domestic sexual abuse suffer emotional and psychological injuries, the
exact nature and extent of which depend on the identity of the abuser. The physician
generally must know who the abuser was in order to render proper treatment because
the physician's treatment will necessarily differ when the abuser is a member of the
victim's family or household. In the domestic sexual abuse case, for example, the
treating physician may recommend special therapy or counseling and instruct the victim
to remove herself from the dangerous environment by leaving the home and seeking
shelter elsewhere. [Id. at 1450.]
Statements made by adult victims of domestic violence have also
been admitted by some courts when the identity of the abuser is
stated to a treating physician. United States v. Hall, 419 F.3d 980 (9th
Cir. 2005) (statements to doctor that live-in boyfriend caused patient's
injuries admissible). Other past facts about causation of physical and
mental problems are also subject to the dual test of “motivation” and
“pertinence.” Willingham v. Crooke, 412 F.3d 553, 561-562 (4th Cir.
2005) (plaintiff's description of her arrest, including a gun being
pointed at her, was admissible for diagnosis and treatment of her
emotional trauma and physical injuries); McCollum v. McDaniel, 32
Fed. App'x 49, 55 (4th Cir. 2002) (statement that injuries were caused
by “assault” were admissible as statements relating to cause more
than to fault).
It is important to distinguish the pertinence requirement from the
statement's relevance in the case. FRE 803(4) is simply another
categorical hearsay exception, based on the supposed reliability of
this type of statement. Hearsay that qualifies for this exception can be
admitted to prove any relevant matter—nothing in the rule restricts
use of the statement to proving medical treatment issues. Suppose
the declarant told the EMT worker that his leg was injured because
he was hit by a car. If that fact is pertinent to diagnosis and treatment,
then the statement is admissible under FRE 803(4) and can be used
to prove causation. If there is other testimony in the case that the
defendant's car was the only one seen at the time of the accident, it
might also be relevant to show the identity of the defendant in a hit
and run case, for example.
d. Requiring Proof of Medical Purpose
Courts are likely to assume that adults, and even teenagers,
understand the purpose for which they are asked to give information
to medical personnel. With young children being examined for sexual
abuse, however, many courts have rejected this assumption and
require that the child's treatment motive be established on the record.
In the Eighth Circuit, identifications of abusers by child abuse victims
are admissible only “where the physician makes clear to the victim
that the inquiry into the identity of the abuser is important to diagnosis
and treatment, and the victim manifests such an understanding.”
Olsen v. Class, 164 F.3d 1096, 1098 (8th Cir. 1999). Other courts
have rejected the Eighth Circuit's requirement of such a specific
showing.

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8. FRE 803(4): Patients' Statements to Medical Expert Witnesses

FRE 803(4) is written in terms broad enough to encompass
statements made by a party for the purpose of diagnosis in
preparation for litigation. The sincerity rationale, of course, may not
apply when a statement of physical condition is made for a litigation
purposes. The treatment motive that tends to ensure sincerity is
lacking. Moreover, the possibility of receiving a high damage award is
an incentive to exaggerate present and past symptoms or suffering.
For this reason, the common law physical condition exception did not
apply to declarations made for the purpose of diagnosis in
preparation for litigation. However, nothing in FRE 803(4) suggests
an intention to preserve this common law limitation. Most courts have
held that admission of statements made to physicians for the purpose
of providing expert testimony is now permitted by the rule.
FRE 803(4)'s admission of statements made to testifying experts
may not be justified by the reliability of such statements, but it is
understandable when one considers this exception in conjunction
with the rules regulating expert opinion testimony. When a person's
physical condition is at issue, there frequently will be an expert
witness to testify about the nature of the condition, likely based at
least in part on the basis of what the person said outside of court
about present and past symptoms. The common law restriction
against use of self-serving hearsay statements of physical condition,
combined with the common law requirement that expert witnesses
had to base their opinions solely on admissible evidence, led to
awkward evidence presentation. The patient had to testify about the
physical condition at issue and then the treating physicians would
have to testify (and be cross-examined) about the patient's treatment.
The expert would then be asked to offer an opinion in response to a
hypothetical question that incorporated the information already
described in court.
Well aware of the problems with hypothetical questions, the drafters
of the Federal Rules consciously sought to avoid them in providing for
the presentation of expert information. See FRE 702, 703, and 705,
discussed in Chapter Nine. A medical expert who has been consulted
for diagnosis in preparation for litigation is almost certainly going to
rely on the patient's statements about past and present symptoms
and will want to recite these statements when explaining the
diagnosis. FRE 803(4) takes full advantage of the information that
medical experts can supply by making statements of physical
condition fully admissible.

KEY POINTS
1. Statements describing medical history and symptoms are
admissible under FRE 803(4). If they qualify for admission
under the exception, they can be used as substantive proof on
any relevant point; they are not restricted to proving the extent
of the declarant's injuries.
2. The statements may be made by the patient or by others
seeking care by providing medical information about the
patient. They extend to statements made to medical
professionals, or to intermediaries who are expected to convey
the information to medical professionals.

553

3. If the statement contains information about the external cause

or source of the medical condition, there must be evidence
that such information is reasonably pertinent to treatment or
diagnosis.
4. Statements made for purposes of medical diagnosis
undertaken in preparation for litigation are included within the
FRE 803(4) exception.

PROBLEMS
8.54. Consider whether the following declarations would be
admissible in a personal injury action if made to the declarant's
spouse, to the declarant's physician for treatment, or to a
physician consulted for the purpose of giving expert testimony
at trial:
(a) “I have a severe headache.”
 (b) “Yesterday, I had a severe headache.”
(c) “I was hit in the head with a baseball bat.”
(d) “John Jones hit me in the head with a baseball bat.”
8.55. Return to Problem 8.4, Broadback v. Trapp, at page 454. Are
any of the statements made to the ambulance driver
admissible under FRE 803(4)?
8.56. Return to Problem 3.4, State v. Blair, at page 150. Norma's
doctor would testify that during a routine medical examination
in 2009, Norma explained some bruising on her ribs. She told
the doctor that her boyfriend had hit her in the middle of an
argument. The doctor then recommended a local counseling
program for victims of domestic violence to her. Would the
doctor's testimony be admissible? What if it is mandatory under
state law for a doctor to report, to local law enforcement,
injuries that are reasonably suspected to be related to
domestic violence?

9. Explanation of FRE 803(5): Recorded Recollection

FRE 803(5) states:

(5) Recorded Recollection. A record that:

(A) is on a matter the witness once knew about but now cannot recall well enough
to testify fully and accurately;
(B) was made or adopted by the witness when the matter was fresh in the witness's
memory; and
(C) accurately reflects the witness's knowledge.
If admitted, the record may be read into evidence but may be received as an exhibit only
if offered by an adverse party.

554
a. Preliminary Factfinding
The factual requirements for the recorded recollection exception
are:

the declarant is testifying as a witness;

the statement is in the form of a record;
 the statement is on a matter about which the witness once had
personal knowledge;
the witness cannot remember the matter sufficiently to testify fully
and accurately;
the statement was made or adopted by the witness when the
matter was fresh in the witness's memory; and
the statement accurately reflects the witness's knowledge.

Written or recorded memoranda or notes about events are often a

substitute for failed memory in our everyday lives. Try to remember
the details of something you once knew but now are unable to
remember fully—say, whether a particular case was assigned in your
Torts class during your first year of law school. You kept notes of all
your first year law school assignments. Or, when people pack their
household belongings for a cross-country move, they often keep
detailed lists of objects placed in particular moving boxes. These
kinds of memory aids are potentially admissible over a hearsay
objection under FRE 803(5).
Prior to the restyling, this rule was called “past recollection
recorded.” Since recollections are necessarily about past matters,
that wording seemed redundant—hence, the style change in the new
rule. You should be aware of the older terminology, however, since
you may encounter it in older reported cases.
No Limits on Contents of the Statement. FRE 803(5) places no
limit on the subject matter or contents of a statement admitted as a
recorded recollection. The notes and lists discussed above could
qualify. So could any form of record of any sort of event that later
becomes relevant in litigation. United States v. Cash, 394 F.3d 560
(7th Cir. 2005) (record of a threatening phone call from a veteran
written by a Veterans' Administration representative); United States v.
Jones, 601 F.3d 1247 (11th Cir. 2010) (video recording of witness's
interview with a police detective). Cases also include the use of
diaries, police arrest and booking forms, and transcripts of wiretapped
phone calls. If the record is a regular part of a business or
governmental function, the exceptions for business and public
records, FRE 803(6), (8), may also be available and the more
onerous factual requirements of FRE 803(5) would not need to be
satisfied.
The Declarant Must Be a Witness . . . with Incomplete Memory.
FRE 803(5) is unique in the Rule 803 exceptions in that it requires the
presence of the declarant in court, as a witness. In this respect,
therefore, the exception is analogous to the Rule 801(d)(1)
exemptions for prior statements of a witness. Under FRE 803(5),
however, it is categorically required that the witness have incomplete
memory of the underlying events that are the subject of the out-of-
court statement, and that the statement

555

must be in written or recorded form. Thus, in one sense the witness

is only partially unavailable: She is on the witness stand and may
remember some, but not all of the events recorded.
Statement Was Made with Personal Knowledge and Fresh
Memory. FRE 803(5) requires a showing that the witness “once
knew” the matter recorded. Typically, if the witness remembers
making the record, he will be able to testify that he knew the
substance of the record and the circumstances of its creation. If the
witness cannot remember making the written record, then the
record's own contents, or the testimony of someone who saw the
record being made, or other circumstantial evidence, would be used
to satisfy the requirement of personal knowledge and fresh memory.
See United States v. Cash, 394 F.3d at 561 (admitting memo of
phone conversation by Veterans Administration representative based
on her testimony of a habit of making such records).
The record can either be made or adopted by the witness. Thus, if
the witness did not actually write or record the statement, but read
over and signified agreement with or approval of the written
statements made by another, the requirement can be satisfied. Plaza-
Bonilla v. Cortazzo, 2009 WL 605909, at *2, n.4 (E.D. Pa.) (witness to
an alleged incident of excessive force by police “provided the
statement just a couple of hours after the incident took place . . .
initialed each and every answer he provided, signed the bottom of
every page, and subscribed the last page, on which he indicated that
he had been given 'the chance to read, correct, and initial [his]
statement' and that 'everything in this statement [was] true and
correct.' ”). That the contents of the record reflected what the witness
knew from firsthand knowledge would still have to be shown.
Courts have not adopted a bright-line rule to determine whether the
witness's memory was “fresh” when the record was made.
Statements recorded years after the events described in them have
been rejected. One court stated “it would seem difficult for a
memorandum drafted by a witness either one month or three months
after the fact” to be deemed “fresh.” SEC v. Johnson, 534 F. Supp. 2d
63, 66 n.4 (D.D.C. 2008). Other courts are more generous. United
States v. Green, 258 F.3d 683, 689 (7th Cir. 2001) (“the trial court
may consider the lapse of time along with other circumstances that
may be relevant in determining [whether] the witness had an accurate
memory,” citing cases where a three-year and 15-month delay were
held not excessive under the circumstances); United States v. Lewis,
954 F.2d 1386, 1394 (7th Cir. 1992) (trial court is in the best position
to gauge the significance of these difficulties, and this is why arbitrary
time limitations are inappropriate). Additional evidence, such as
clarity of statement, richness of detail, and making changes and
corrections, can show that the witness's recollection was still
sufficiently fresh.
The Record Reflects the Witness's Knowledge Accurately.
Some evidence that the statement is an accurate reflection of
knowledge and memory—that is, both sincerely and accurately
recorded—is required. A typical question asked is whether the
contents are “true and accurate.” United States v. Jones, supra, at
1262. But if the witness cannot adequately remember the events
recorded, it may be impossible for

556

the witness to testify truthfully that the record is an accurate

reflection of what the witness knew when the record was made. What
may often happen is that the witness-declarant simply answers “yes”
to the typical question asked and the basis for the witness's ability to
so testify is not probed. In some cases, there are circumstances from
which accuracy can be inferred. Erasures and corrections in the list
may indicate care about accuracy. Or a written statement signed by a
suspect in criminal custody could contain the language, “This is an
accurate statement to the best of my recollection.” And, the witness
can testify as to why the statement is likely to have been accurate at
the time that it was made. As a law student, you could testify that you
had strong motivation to record your Torts assignments accurately.
FRE 104(a) and 104(b). These foregoing factual requirements are
FRE 104(a) questions for the judge to decide. This is so even though
these factual requirements seem to overlap considerably with the
foundation for such a document under FRE 602, 901, and 104(b).
Assuming the recorded recollection contains relevant information,
satisfying the FRE 803(5) factual requirements will also necessarily
satisfy any remaining foundation requirements. That's because if a
judge is persuaded by a preponderance of the evidence that the
document is an accurate statement of the witness's past firsthand
knowledge made under circumstances supporting its accuracy, then a
reasonable jury could also have been so persuaded. The jury
remains free to determine what weight, if any, to give the recorded
recollection once it is admitted.
“Read into Evidence.” FRE 803(5) specifically states that an
offering party may have the contents of the recorded recollection
“read into evidence.” It may be read aloud by the witness or the
attorney in the jury's presence into the trial record. But the record may
not be received as an exhibit unless the opponent wants it to be.
Thus, it may not be handed around by the jury or taken into the jury
room for deliberations, “for fear that a factfinder would be unduly
influenced by the document rather than the testimony.” United States
v. Cuesta, 2007 WL 2729853, at *19 (E.D. Cal.). (When testimony in
a deposition is admitted into evidence, it is typically treated in the
same manner: The contents of the deposition are read to the jury, but
the deposition is not itself admitted as an exhibit, or at least is not
allowed into the jury room, unlike other admissible documents or
records.) If for some tactical reason of advantage the opponent
wishes to have the FRE 803(5) record before the jury as a document,
the opponent may offer it as an exhibit.
If there is a concern about jurors being “unduly influenced” by
looking at a recorded recollection in written form, it may seem strange
that courts have no problem in allowing audio or video recordings to
be played for the jury when they qualify as recorded recollections
under FRE 803(5). But that seems to be the general practice. See,
e.g., United States v. Sollars, 979 F.2d 1294, 1298 (8th Cir. 1992);
Pickett v. United States, 822 A.2d 404, 405 (D.C. 2003). However, as
with written documents, the recordings are not admitted in evidence
as exhibits and taken into the jury room, unless moved into evidence
by the opponent. See United States v. Mayhew, 2011 U.S. Dist.
LEXIS 13906, 2011 WL 601546 (D. Utah Feb. 11, 2011).

557
b. Justification for the Admissibility of Recorded Recollections
The limits of human memory, and the widespread use of
memoranda to compensate, create a compelling practical need for
the admission of recorded recollections. FRE 803(5) seeks to create
conditions tending to increase the probability of the record's
trustworthiness. Obviously, if the record was made when the matter
was fresh in the witness's mind, memory problems may be
minimized. The requirement of accuracy provides information
concerning the witness's sincerity and care in recording the
statement. The factual requirements do not address the accuracy of
the witness's perception of the matter reported in the statement, but
the witness's current availability for general cross-examination may
furnish information pertinent to perception ability and opportunity. The
opposing party's opportunity, through cross-examination, to probe the
basis for a witness's testimony that a written memo is “true and
accurate,” provides additional guarantees that sincerity and narration
dangers are decreased. These requirements are only effective,
however, if trial courts apply them strictly.
 c. Recorded Recollections Created by Multiple Declarants
Sometimes one person observes events and tells them to a second
person who then makes a record based on what was said. When that
occurs, there are two levels of hearsay contained in one document.
For example, John might do the packing of his household goods and
then call out what he puts into each box while a second person, Bob,
makes the list. There are two declarants in this situation: the
observer, John, who has observed the event (what item is packed
where), and the recorder, Bob, who transfers information obtained
from the observer into the record. If the observer-declarant does not
check and adopt these lists, then the observer cannot later testify in
court that the lists correctly reflect what he saw. Therefore, the
observer-declarant alone cannot provide a complete Rule 803(5)
foundation. There are many other possible examples of this scenario.
Employers may make oral statements that are recorded and
transcribed by secretarial staff; people make statements at group
meetings where one of the group members takes notes.
FRE 803(5) does not specifically address the effect of multiple
person involvement in making the record. The Advisory Committee
Note to FRE 803(5) states, “Multiple person involvement in the
process of observing and recording . . . is entirely consistent with the
exception.” A leading treatise states that “courts have held the written
statement admissible if the person reporting the facts testifies to the
correctness of the oral report (although at the time of the testimony,
the detailed facts cannot be remembered) and the recorder of that
statement testifies to faithfully transcribing that oral report.”
McCormick on Evidence, Vol. 2 §283, at 300 (Kenneth S. Broun ed.,
6th ed. 2006).
The proponent of the cooperative report can satisfy all of the FRE
803(5) requirements only if both out-of-court declarants—the original
observer of the information and the later recorder of the information—
testify about the observing and recording process. This also gives the
opposing party the opportunity to cross-examine both the observer
and the recorder about their part in the creation of the record. Thus, if
the proponent relies solely on Rule 803(5) to admit a record produced
by multiple
558

declarants, each declarant in the hearsay chain must be presented

as a witness. United States v. Green, 258 F.3d at 689 (“both the
witness and the one transcribing the statement must testify”). This
can be a cumbersome process for the proponent, and some of the
declarants may not be available.
There are other strategies to admit a cooperative report created by
multiple declarants. It can be analyzed as a generic “hearsay within
hearsay” or “statement within a statement” problem, of the sort
identified by FRE 805. This means that any combination of hearsay
exemptions, exceptions, or nonhearsay purposes can be used so
long as the admissibility of each level of statement is established.
(See the discussion of FRE 805, at pp. 485-86, supra.)
For example, suppose several friends help John pack up his
household goods, and each one tells the recorder what is in each
box. The recorder later compiles a list based on their hearsay
statements. Even if the friends are unavailable to testify, their
statements are probably present sense impressions within FRE
803(1). The combination of this exception for the observer-declarants
(the friends) and the recorded recollection exception for the recorder-
declarant who will testify in court will satisfy FRE 805 and overcome
any multiple hearsay objection. Other combinations are also possible,
if the record is made of an excited utterance or an admission by a
party opponent, for example. United States v. Cuesta, 2007 WL
2729853, at *19 (ranger's citation that recorded defendant's date of
birth from a driver's license was admitted under FRE 803(5); the date
of birth on the license is an official record or adoptive admission).
If the recorder-declarant is not available as a witness, or has no
memory of the accuracy of the particular recording, another exception
might apply to the recorder, such as FRE 803(1) or the exception for
business records, FRE 803(6). It is important in applying the recorded
recollection exception that the recorder be truly recording, as
opposed to interpreting or editing, what the witness was saying and
has now forgotten. The absence of interpretation ensures that it is the
observer's perception and memory, not the recorder's consciously
altered version, that is recorded.

10. Refreshing Memory versus Recorded Recollection: FRE 612

a. Explanation of Refreshing Memory
The recorded recollection exception should not be confused with
the process of refreshing the memory of a witness. (This process is
sometimes referred to as “refreshing recollection” or “present
recollection refreshed” to contrast with the former phrase “past
recollection recorded”). When a witness initially cannot recall
something, it may be possible to refresh the witness's memory by
presenting that witness with a document or something else that the
examiner thinks, or that the witness suggests, may cause the witness
to regain memory of the relevant fact. John, for example, might
remember actually packing the objects that he placed in a particular
box if he looks briefly at a packing list.
The idea of refreshing memory is a matter of common experience.
We've all had the experience of, for instance, a friend or family
member referring to some past incident about which we can recall
nothing. But perhaps by hearing a few details of the

559

incident, or seeing a photo, it comes back to us. It is permissible to

“jog the memory” of a witness in essentially the same ways.
Refreshing the memory of a witness is not a hearsay exception, but
rather a witness examination technique. We bring it up here because
of its overlap with recorded re-collection—both deal with the problem
of memory loss of a witness on the stand—and hence the possibility
of confusing the two concepts. The primary conceptual difference is
this: With refreshing memory, the witness has his memory refreshed
and then testifies from his own present memory. The admissibility of
the testimony is regarded no differently than if the witness did not
have the memory lapse. With recorded recollection, the witness does
not have a present memory of the past fact; the record is used in
place of the witness's testimony on that point.
In addition to that fundamental conceptual difference between
refreshing memory and recorded recollection, there are some rule
differences between the two. First, a witness's memory can be
refreshed only when the witness's memory is “exhausted”—that is,
the witness has no memory on the fact(s) in question. In contrast, the
recorded recollection exception is triggered when the witness's
memory is merely incomplete: “[T]he witness. . . cannot recall well
enough to testify fully and accurately.” FRE 803(5).
Second, recorded recollection overcomes a hearsay objection to the
use of a written or recorded memory aid—that document is
admissible evidence, and it (or the relevant portion of it) is read to the
jury. In contrast, the thing used to refresh a witness's memory is not
evidence. If feasible, it is not shown to the jury. Once the witness's
memory is refreshed, he must testify from his memory, and not by
reading from or summarizing the document or thing used to refresh. If
his memory is not sufficiently refreshed, the witness should be barred
from attempting to provide the information.
Third, recorded recollections are limited to writings or recordings
that meet the elaborate preliminary fact requirements of FRE 803(5).
In contrast, counsel can attempt to refresh a witness's memory with
anything, including inadmissible matter. As one court summarized a
state-law version of the rule:
In a more conventional mode, the process might proceed, “Your Honor, I am about to
show the witness a written report, ask him to read it and then inquire if he can now
testify from his own memory thus refreshed.” In a far less conventional mode, the
process could as well proceed, “Your Honor, I am pleased to present to the court Miss
Rosa Ponselle who will now sing 'Celeste Aida' for the witness, for that is what was
playing on the night the burglar came through the window.”7 Whether by conventional or
unconventional means, precisely the same end is sought. One is looking for the effective
elixir to revitalize dimming memory and make it live again in the service of the search for
truth. [Baker v. State, 371 A.2d 699, 705-706 (Md. App. 1977).]
Thus, inadmissible matter, such as a hearsay document, can be used
to refresh recollection. It is even permissible to use a suggestive
question. In the same way that your memory of a past incident can be
jogged with a suggested detail (“Your aunt and
560

uncle were there—do you remember now?”), such information can be

provided by the questioner: “Would it refresh your recollection if I
were to tell you that your aunt and uncle were present at the
meeting?”
b. The Impact of FRE 612 on Refreshing Recollection
With a friendly witness, the process of refreshing memory might
take place outside the courtroom while discussing and rehearsing the
direct and anticipated cross-examination. If during this or any other
preparation for courtroom or deposition testimony the witness uses a
writing to refresh memory, the opposing party may be entitled to
inspect the writing. This is because FRE 612 provides as follows:
RULE 612. WRITING USED TO REFRESH A WITNESS'S MEMORY
(a) Scope. This rule gives an adverse party certain options when a witness uses a
writing to refresh memory:
(1) while testifying; or
(2) before testifying, if the court decides that justice requires a party to have those
options.
(b) Adverse Party's Options; Deleting Unrelated Matter. Unless 18 U.S.C. §3500
provides otherwise in a criminal case, an adverse party is entitled to have the writing
produced at the hearing, to inspect it, to cross-examine the witness about it, and to
introduce in evidence any portion that relates to the witness's testimony. If the producing
party claims that the writing includes unrelated matter, the court must examine the
writing in camera, delete any unrelated portion, and order that the rest be delivered to
the adverse party. Any portion deleted over objection must be preserved for the record.
(c) Failure to Produce or Deliver the Writing. If a writing is not produced or is not
delivered as ordered, the court may issue any appropriate order. But if the prosecution
does not comply in a criminal case, the court must strike the witness's testimony or—if
justice so requires—declare a mistrial.
FRE 612 is not merely a rule of admissibility; it is also a rule of
discovery. One of the things it means is that any documents that a
person looks at in preparing for a deposition may be discoverable by
the opposing party—including perhaps documents that would
otherwise be protected by the work-product doctrine or some
privilege. Since many of you are likely to become involved in the
process of taking depositions long before you are responsible for a
trial, we urge you to find a special place in your memory for FRE 612.
 c. Witness Memory Lapses in Practice: The Interplay of Recorded Recollection and
Refreshing Memory
When a witness doesn't remember facts that you need to introduce
in evidence, you thus have various options arising from the recorded
recollection and refreshing memory rules, either used separately or in
combination. You may know about the

561

witness's memory issue before trial, in which case you can try to
plan out your strategy, or the memory problem may arise in the
course of questioning, in which case you will have to think quickly on
your feet.
If the witness does not remember a point, and you have a document
that may qualify as a recorded recollection, you have two options. If
you prefer the document to the witness's testimony, you can have the
witness testify to the preliminary facts for FRE 803(5) and then read
the document into evidence.
But you might prefer the witness to testify to the facts in her own
words, from her own memory—perhaps because the witness, with
refreshed memory, would convey the facts more completely or
persuasively. Or perhaps you don't have a document that qualifies for
FRE 803(5); or perhaps you thought you had such a document, but
the witness fails to deliver the testimony needed to show the 803(5)
preliminary facts. In any of these cases, you will want to use the
refreshing memory technique.
It's also possible that you prefer to refresh the witness's memory,
but the document doesn't succeed in doing so. Or perhaps you're
indifferent about how the evidence comes in. Here, a common way to
satisfy the FRE 803(5) foundational requirement of insufficient current
memory is to show the witness the record, ask if it refreshes the
witness's memory, and offer it as a recorded recollection if the
memory is not refreshed.
There are two important procedural points to bear in mind about all
this. First, technically speaking, the preliminary fact of memory loss is
stricter for refreshing recollection than it is for FRE 803(5) recorded
recollection. Again, to refresh memory, the witness's memory must be
exhausted; to trigger FRE 803(5), memory need only be incomplete.
If opposing counsel or the judge are strict about this preliminary fact,
you may have to switch grounds from incomplete memory to
exhausted memory by getting the witness to “draw a blank.” This can
be done by narrowing the frame of reference of the fact in question. A
witness may have a partial memory of a past event framed broadly: “I
remember packing various household items, but I don't necessarily
remember every individual item” is probably an incomplete memory
for FRE 803(5), but probably not an exhausted memory for refreshing
recollection. This problem can be solved by asking for specifics: “Do
you remember packing the Tiffany desk lamp?” If the witness says
“no,” then you have exhausted memory on that point.
The second key point is that refreshed memory is refreshed
memory, not a reading test. The witness with refreshed memory must
testify from memory, not by verbally reproducing the item used to
refresh. It is all too common, for instance, for a police officer on the
witness stand to be handed an inadmissible police report to refresh
her memory, only to have her say that her memory is refreshed, and
then proceed to read aloud from the report. That is objectionable, of
course. See United States v. Weller, 238 F.3d 1215 (10th Cir. 2001)
(not error for trial court to prohibit witness's use of an appraisal list of
objects to refresh recollection where the judge believed that the list
would be the source of direct testimony). As opposing counsel in a
refreshing recollection situation, you should be on guard for this
improper use of a refreshing document, though it may be difficult to
prevent it in specific situations.

562

If the object is a writing that refreshes the witness's memory, the

opposing party is entitled to inspect the document, and also to
introduce into evidence “those portions which relate to the testimony
of the witness.” FRE 612. If the writing has refreshed the witness's
memory, however, it will probably contain information that
corroborates what the witness has said. Thus, it is unlikely that the
opposing party would want to introduce it into evidence. If the object
does not revive the witness's memory, there will be no further
occasion to refer to the object, unless the object happens to have
some independent relevance to the lawsuit.

KEY POINTS
1. Written or recorded statements concerning any relevant
matters may be admissible for their truth under FRE 803(5) if
the declarant testifies as a witness and is not able to fully
recollect those matters. The witness must have made or
adopted the record when her memory was still fresh and have
made an effort at accuracy in making the record.
2. If a statement is the product of reporting and recording by two
or more out-of-court declarants, then all declarants must testify
if FRE 803(5) is the sole hearsay exception relied on to admit
the statement. FRE 803(5) can be used in combination with
other exemptions and exceptions to admit statements
containing multiple levels of hearsay.
3. Recorded recollection is distinguished from refreshing memory.
The latter is not a hearsay exception, but a witness
examination technique. The witness may be shown anything,
including inadmissible matter, reasonably expected to jog the
witness's memory. The witness then may only testify from her
refreshed memory.

PROBLEMS
8.57. Plaintiff Rhoda Bolt, a CPA and Chief Auditor for Aquatic
Marine Corp. (AMC), has filed suit against AMC for sexual
harassment and wrongful discharge due to AMC's creation of a
hostile work environment. She alleges that the harassment,
consisting of overtly sexual and demeaning comments and
behavior from other employees, began in July 2012; that the
 atmosphere in the Auditing Department was overtly hostile to
her; that this affected her ability to perform her job; and that
she was wrongfully discharged in 2015.
(a) At trial, Plaintiff will offer notes that she wrote outlining
many specific incidents of harassment that she cannot
entirely recall. She testifies that she is not sure when she
began taking notes on the incidents, but that it was some
time in 2013; that she made the notes at home, usually
but not always on the same day as the incident reported;
and that the only reason she made the notes was to
accurately record what happened and when. The notes
terminate in 2015 when she was discharged by AMC. Are
Bolt's notes admissible to prove a hostile work
environment?

563

(b) Defendant AMC will offer the personal notes made by

Leveritt Darnell, Chief Financial Officer of AMC and Bolt's
supervisor. Darnell testifies that after Bolt made several
complaints about the problems and hostile work
environment in the Auditing Department, he became
concerned about Bolt's job performance. He says he
wrote these notes for his own reference for a period of
several months in 2015, before he discharged Bolt. The
notes describe Darnell's analysis of accounting mistakes
made in accounting documents written by Bolt in her role
as Chief Auditor, dating back as early as 2012. The notes
were not shown to Bolt nor to anyone else, but were
placed by Darnell into his file on Bolt. Are Darnell's notes
admissible if Darnell has insufficient memory to testify
fully and accurately?
8.58. While Andrew was crossing an intersection, he was hit by an
automobile, which fled the scene of the accident. Sadie,
Andrew's companion, rushed to his side, and asked, “Are you
okay?” Andrew, who was still conscious, responded, “I don't
 know, but I got the license number of the car that hit me. It was
879-ACY. Write it down so we won't forget.” Sadie had nothing
to write on, so she kept repeating the license number to
herself. When she got home, a few hours later, she wrote down
the number. Andrew has brought an action for personal injuries
against Roland Bowers, who is the registered owner of a green
Plymouth with the license number 879-ACY. Neither Andrew
nor Sadie remembers the license number now. Is Sadie's
record of it admissible under any hearsay exceptions? Which
ones?
8.59. Officer Kristi Curtis investigated the crime scene of a
residential burglary, where she made numerous personal
observations, such as footprints in the flower bed (that
eventually matched the defendant's cowboy boots), a broken
window latch, various drawers and cupboards that were left
open, etc. She wrote up a detailed report later during the same
work shift. On direct examination at trial a year later, Curtis
seems to have forgotten many details. The prosecutor hands
Curtis a copy of her police report and asks when she wrote it.
The defense counsel objects that the police report is
inadmissible under FRE 803(8)(A)(ii), and the objection is
sustained. (You will read about that exception shortly. You don't
need to know it to answer this question.) The prosecutor then
asks if the report would refresh Curtis's recollection. Curtis
says it would. The prosecutor then asks, “What did you
observe?” Curtis responds, “Footprints were found in the flower
bed, eventually matched to defendant's cowboy boots—.”
Defense counsel wants to object. What objection? What, if
anything, can the prosecution do to get Officer Curtis' personal
observations of the crime scene into evidence?

11. Explanation of FRE 803(6): Records of a Regularly

Conducted Activity
FRE 803(6) provides:
 (6) Records of a Regularly Conducted Activity. A record of an act, event, condition,
opinion, or diagnosis if:
(A) the record was made at or near the time by—or from information transmitted by
—someone with knowledge;

564
(B) the record was kept in the course of a regularly conducted activity of a business,
organization, occupation, or calling, whether or not for profit;
(C) making the record was a regular practice of that activity;
(D) all these conditions are shown by the testimony of the custodian or another
qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a
statute permitting certification; and
(E) the opponent does not show that the source of information or the method or
circumstances of preparation indicate a lack of trustworthiness.

a. Preliminary Factfinding
The factual requirements for records of a regularly conducted
activity are:

the statement is a record;

the record is of an act, event, condition, opinion, or diagnosis;
the record was made at or near the time of the act, etc.;
the record was made by someone with knowledge of the act,
etc.; or
the record was made from information transmitted by someone
with knowledge;
the record was kept in the course of a regularly conducted
activity of a business, organization, occupation, or calling,
whether or not for profit;
it was a regular practice of that activity to make the record.

In addition to these requirements, FRE 803(6) also contains two

unique features. It requires the proponent to produce a “custodian or
other qualified witness” to testify about the factual requirements or to
present a written declaration certifying such foundation facts pursuant
to FRE 902(11) or (12). FRE 803(6)(E) also permits execlusion of a
record that otherwise fits the exception, if the opponent shows that
the record's source or method or circumstances of preparation are
untrustworthy.
 The Broad Scope of FRE 803(6)(B), “Regularly Conducted
Activity.” FRE 803(6) and its state law equivalents have long been
known as the “business records exception.” Prior to the restyling,
FRE 803(6) used the term “business records” and defined “business”
very broadly. That term continues in use, in part because the vast
majority of records admitted under FRE 803(6) are in fact business
records, even though the rule extends to activities defined more
broadly than a for-profit business. The more than 30 years of existing
case law that we draw on to interpret and apply the provisions of FRE
803(6) has focused primarily on the records of “businesses.” Also
“business records,” at four syllables, is much easier to say than the
15-syllable “records of a regularly conducted activity.” Courts and
practitioners, and probably your professor, are likely to use the term
“business records” for these reasons. We thus use the “business”
terminology in the text below.
The important point is to remember, however, that the exception is
not limited strictly to records of “businesses.” In its present form FRE
803(6)(B) explicitly includes records of organizations, occupations,
and callings, whether or not for profit. Thus, the records of groups
that do not seem to be businesses, such as the expense records of a
Scout Troop, or records of expenses kept by students working on a
student law

565

journal or other student organization, easily fall within Rule 803(6)

(B). When record-keeping activity assumes a public role, or provides
a function within an “organization,” the terms of the exception apply.
FRE 803(6)(C): Making the Record Was a Regular Practice. The
term “record” has been interpreted to include a broad range of
documents—memoranda, reports, recordings, or data compilations.
The distinguishing feature of the FRE 803(6) records is that
information about acts and events, etc., has been stored somewhere
outside of the human mind and can be recalled in some form other
than oral testimony. The permissible contents of these records are
likewise broad, and include acts, events, conditions, opinions, or
diagnoses.
The principal limitation on what counts as a record has less to do
with its contents, and more to do with the regularity with which the
organization (or the participants in the “regularly conducted activity”)
made records of that type. Regularly recorded organizational matters
are within the core of the rule. The business records exception
requires a showing that it was a regular practice to make the record,
meaning that making such a record, or records like it, happened
systematically or repeatedly. Compare United States v. Skeddle, 981
F. Supp. 1069, 1072 (N.D. Ohio 1997) (customary for an accounting
firm employee to take notes at client meetings, place them in the
client files, and refer to them at a later time; therefore, notes were
kept as part of the regular course of business) with AgriBioTech, Inc.
v. Thomas, 2005 U.S. Dist. LEXIS 6465 (D. Nev. 2005) (document
entitled “Trott conference” appears to be notes of a meeting but no
evidence offered that employee regularly took notes at meetings, or
that it was his practice to make such notes, or that he was under any
“business” duty to report his notes of the events of the meeting). In
United States v. Kaiser, 609 F.3d 556, 574 (2d Cir. 2010), a
participant in the fraudulent business scheme charged against
defendant made notes in his “business planner” concerning
telephone calls during which defendant asked him to send letters
confirming financial obligations that were false. Kaiser argued that the
participant's note taking was too sporadic and selective to meet the
standard of “regular practice,” and that the participant stated on
cross-examination that he only wrote down “highlights” and what he
thought was important. The court overruled these objections, holding
that “part of the participant's business was to sign these
confirmations, and these are records of conversations he had in
connection with that part of his business . . . [they are] unquestionably
business records.” Further,
[t]he selectivity that Kaiser points out. . . is the nature of all note-taking. A business
record need not be mechanically generated to be part of a “regular practice.” . . . [The
participant's] contact log is different in kind from the types of “miscellaneous jottings” that
courts have found inadmissible under this exception, because it was maintained in a
consistent way and was focused on a certain range of issues that were relevant to his
 business. Cf. United States v. Ramsey, 785 F.2d 184, 192 (7th Cir. 1986) (“Occasional
desk calendars, in which entries may or may not appear at the whim of the writer, do not
have the sort of regularity that supports a reliable inference.”) [Id. at 575.]
What about records made by individuals, as opposed to
organizations? The wording of FRE 803(6) does not rule out the
records of individuals. Again, the determining factor is the regularity
of the activity for which the records were kept, FRE 803(B),

566

and the regularity with which the records were made. FRE 803(6)
(C). Probably your notes as a student do not qualify as business
records, nor would casual records you keep of your household
expenses. But there are cases in which a person's own records of
expenses, or income, kept for business reasons such as balancing
bank accounts, maintaining a budget, or preparing tax returns can
qualify under FRE 803(6), so long as they are “systematically
checked and regularly and continually maintained.” Keogh v. IRS, 713
F.2d 496, 499 (9th Cir. 1983). Your receipts and bills for goods and
services that you purchase are business records of the seller or the
credit card company, but they are not your business records. Courts
do not treat people as being in the business of being a consumer.
FRE 803(6)(A): Personal Knowledge and Near Contemporaneity
Are Required. The original source of a FRE 803(6) record is like the
observer discussed in regard to FRE 803(5). This original source
must have personal knowledge of a matter and must start the
process of making a record of that matter. The source may make the
written record, or may transmit information orally or in some written
format to a series of other people who record the information in
various formats. FRE 803(6) also requires that the original source
start this process of record-keeping at or near the time that the
source observed the matter.
An example will help to illustrate these requirements. In a suit for
breach of contract, the purchaser claims that goods purchased from
the seller were delivered in a damaged condition. To prove damaged
condition, the purchaser offers a document entitled “Damage Report.”
It identifies the shipment of goods as coming from the seller and
describes the damaged condition of the items. Joan, the purchaser's
employee who wrote the report, has left the company and is
unavailable to testify. Since the report is offered to prove the truth of
the matters it asserts—that the boxes were labeled as coming from
seller, and that the goods were damaged—it is hearsay. To fit within
the business record exception, the proponent must prove that Joan
had personal knowledge of the matters described and that she wrote
the report or transmitted her knowledge close in time to her
observation of the shipment.
It is important to identify the activity with which the record should be
contemporaneous. In In Re WorldCom, Inc. Securities Litigation,
2005 U.S. Dist. LEXIS 2215, at *24-25 (S.D.N.Y. 2005), the
consolidated securities class action arising out of the collapse of the
telecommunications giant WorldCom, one of the defendants filed a
motion in limine to exclude the Restatement of WorldCom's 2000 and
2001 financial statements. The Restatement, issued in 2004,
revealed an overstatement of WorldCom's net income by $74 billion
in those two years. In response to the claim that the Restatement was
not contemporaneous with the financial events of 2000-2001, the
court held that a financial statement is never created
contemporaneously with the underlying business records, but is
always “filed months after the end of the fiscal year[.]” As for the
Restatement, that was “the result of a [regular] process of review . . .
that reflects the accounting work done [by the reviewer] 'at or near the
time' that the report was created.” In other words, the Restatement
was deemed sufficiently contemporaneous with the regular review
process, as opposed to the actual financial events reflected in the
earlier financial statements.

567

Made Pursuant to a “Business Duty.” The business record

exception has long been interpreted to include a requirement that the
persons making the business record—those who provide the initial
information and those who transmit it within the organization—have a
“business duty to report” the information. This normally means some
sort of formal obligation stemming from the person's employment in
the business, or assigned task or role in the organization or regularly
conducted activity. FRE 803(6) does not expressly state such a
factual requirement, but it has been inferred from the regularity
requirements of FRE 803(6)(B) and (C). See United States v. Patrick,
959 F.2d 991 (D.C. Cir. 1992) (receipt with defendant's name and
address on it was not an admissible business record because
defendant had no business duty to supply name and address when
purchasing a television).
The business duty to provide or report information is implicit in the
business routine of generating the record, and is considered an
element that guarantees accuracy. See MCC Mgmt. of Naples, Inc. v.
Int'l Bancshares Corp., 468 F. App'x 816, 828-829 (10th Cir. 2012);
United States v. Pazsint, 703 F.2d 420, 424-425 (9th Cir. 1983).
Indeed, the Advisory Committee refers to the business duty to report
as “a duty of accuracy.” See Advisory Committee Note to FRE 803(6).
Unlike the recorded recollection exception, FRE 803(6) does not
require testimony as to the accuracy of the contents of the record.
Instead, if “the supplier of the information does not act in the regular
course [of business activity], an essential link is broken; the
assurance of accuracy does not extend to the information itself[.]” Id.
The business duty requirement generally means that information
supplied by outsiders to the business or activity cannot be admitted
as part of the business record under FRE 803(6). Such an outsider
statement within a business record raises a problem of hearsay within
hearsay under FRE 805. If offered for its truth, the outsider's
statement would have to qualify for a different hearsay exception or
exemption. However, some courts have extended the idea of a
business duty to report to persons or entities outside the business
who have a contractual or agency relationship with the business that
requires them to report accurately. See Peak v. Kubota Tractor Corp.,
559 F. App'x 517, 523 (6th Cir. 2014) (employee of defendant's
contractor “was a participant in the chain producing the record in the
course of [defendant's] regular business activity).
 Custodian or Other Qualified Witness. Courts have interpreted
the language in FRE 803(6)(D) to require that the custodian of the
record or some other qualified witness be able to explain the record-
keeping procedures of the organization. Personal knowledge of the
specific records at issue is not required:
Rule 803(6) does not require that the custodian personally gather, input, and compile the
information memorialized in a business record. The custodian . . . need not be in control
of or have individual knowledge of the particular corporate records, but need only be
familiar with the company's recordkeeping practices. [Guillermety v. Secretary of
Education, 341 F. Supp. 2d 682, 690 (E.D. Mich. 2003).]
The foundation witness need not be an employee of the organization,
so long as there is a showing of the witness's familiarity with the
record-keeping system. And the end custodian of data may testify as
to the process by which the data was generated, and transmitted by,
other entities. Houston v. Smith, 2010 U.S. Dist. LEXIS 118135 (W.D.

568

Pa.) (satellite data generated by a computer and processed by

Qualcomm and then used and stored by defendant corporation was
shown to be transmitted from the other entities in the regular course
of business by the testimony of defendant's witness).
FRE 803(6), together with FRE 902(11) and (12), now permits the
foundation for business records to be provided by a written
declaration, rather than a live testifying witness. While the factual
requirements for the hearsay exception should not be altered by the
streamlined foundation procedure in FRE 902(11) and (12), some
cases seem to accept written declarations that speak in wholly
conclusory terms: “[T]he records were made and kept in the course of
business by an employee who had personal knowledge of the facts
recorded . . . This is sufficient.” Spurlock v. Commissioner, T.C. Memo
2003-124 (U.S. Tax Ct. 2003). In such a case, neither the opponent
nor the jury is provided with any detailed, context-specific information
with which to evaluate the reliability of the record. The notice
requirement is intended to give the opponent the opportunity to take
discovery to test the adequacy of the foundation in the declaration,
but this results in increasing the costs of the opponent's pretrial
discovery. United States v. Klinzing, 315 F.3d 803 (7th Cir. 2003)
(defendant had right to depose record keepers or call them to the
stand for cross-examination).
b. Justification for the Admissibility of Records of Regularly Conducted Activities
No business or other organized entity can survive in today's world
without keeping records of its activities. And there is very little civil
litigation that does not use some type of record as evidence. As with
many other exceptions, the admissibility of FRE 803(6) records is
justified on the grounds of necessity and reliability. The necessity is
twofold. First, there is frequently multiple person involvement in the
production of these records. It would be time-consuming,
inconvenient, and perhaps impossible to call each individual who had
a part in generating the record as a witness. Second, even if the
people who were responsible for making the record were on the
witness stand, they might not have any present memory of matters
contained in the record. With respect to routine matters recorded in
the ordinary course of business, all they can testify about is their
routine practice in making such a record. The record itself is the only
accurate source of the substantive information.
The reliability rationale for the exception is based on several factors.
The requirement that the record be made at or near the time of the
matter recorded minimizes any memory problem. A person who
makes a record in the regular course of activity has an incentive to be
honest and accurate in order to advance both the purposes of the
organization or business, and to be personally successful within the
business or organization. The fact that the record is kept in the
regular course suggests that it may be relied on or checked for
accuracy, which provides an added guarantee of trustworthiness and
an incentive for the record maker to be accurate in the first place. The
routine nature of many records that are made and kept in the regular
course of organized activity suggests that there is not likely to be an
incentive to lie about routine matters. And finally, the regularity of the
record-making process often gives the record maker some expertise
in record-making that tends to ensure accuracy. Many of these
569

generalizations might not apply to the kinds of personal records

described above that may not qualify as FRE 803(6) records.

12. FRE 803(6): Practical Applications and Problems

Not all records that are made and kept in the regular course of
business or organized activities are reliable. Consider, for example,
records that are created for self-serving purposes, such as for
promotion and public relations, or in preparation for litigation. You
might think differently about the reliability of a discussion of the safety
of an automobile braking system contained in a company's testing
report, as opposed to a discussion in a report prepared to defend
against a lawsuit. Or consider the difference between job site
accident reports filed by injured employees or by an official public
investigator.
a. Exclusion for Untrustworthiness
FRE 803(6)(E) permits the judge to exclude a record if “the source
of information or the method or circumstances of preparation indicate
a lack of trustworthiness.” This exclusionary clause is based on a
concern articulated by the Supreme Court in Palmer v. Hoffman, 318
U.S. 109 (1943). The plaintiff, who was injured in a railroad grade
crossing accident, claimed that the railroad was negligent in that the
engineer failed to ring a bell, blow a whistle, or have a light burning in
the front of the train. The defendant offered into evidence as a
business record an accident report made by the engineer, who died
before the trial. The Supreme Court, interpreting the then-existing
federal business record statute, upheld exclusion of the record as not
made “in the regular course of business.”
[I]t is manifest that in this case those reports are not for the systematic conduct of the
enterprise as a railroad business. Unlike payrolls, accounts receivable, accounts
payable, bills of lading and the like, these reports are calculated for use essentially in the
court, not in the business. Their primary utility is in litigating, not in railroading. [Id. at
113-114.]
Palmer v. Hoffman interprets what constitutes regular business
conduct so as to eliminate documents prepared with a self-interested
business or personal motivation. In our hypothetical, the Damage
Report prepared by Joan about the damaged shipment, might be
excluded under Palmer v. Hoffman. Yet it could be a regular practice
of a company to prepare such reports, and it would serve a regular
business interest to do so. The approach of FRE 803(6) is to permit
the judge to deal with the risk of untrustworthiness on a case-by-case
basis. However, Palmer v. Hoffman remains good law, and records
whose “primary utility is in litigating” are likely to face at least a heavy
presumption of unreliability under FRE 803(6)(E). As in Palmer,
litigation-oriented reports prepared by insurance claims adjusters or
investigators, whose business includes regular litigation, are
nevertheless generally held untrustworthy. See Jordan v. Binns, 712
F.3d 1123, 1135 (7th Cir. 2013) (citing Palmer); Certain Underwriters
at Lloyd's, London v. Sinkovich, 232 F.3d 200, 205 n.4 (4th Cir.2000)
(same).

570

Burden of Persuasion. FRE 803(6)(E) states, as the final element

to the business records exception, that “the opponent does not show”
circumstances indicating a lack of trustworthiness. Thus, an opponent
to the proffered record has the burden of persuading the judge that it
lacks trustworthiness. (Because a minority of judicial decisions had
held otherwise, FRE 803(6)(E) was amended in 2014 to clarify that
this burden falls on the party opposing admission of the business
record. See Advisory Committee Note to 2014 Amendment.) Thus,
the seller of the damaged goods would attack Joan's self-interest (on
behalf of her employer) in writing the Damage Report, and could
question her method of preparing it. That the custodian or other
qualified witness does not know whether the records are complete, or
completely accurate, does not establish untrustworthiness. The
opponent must produce “specific and credible” evidence of
untrustworthiness. Morris v. B.C. Olympiakos, SFP, 721 F. Supp. 2d
546 (S.D. Tex. 2010). Of course, the proponent of the record must be
prepared to respond to the opponent's attack with facts that show
trustworthiness.
Circumstances Indicating Lack of Trustworthiness. The greatest
concern about trustworthiness focuses on sincerity dangers, such as
the motivation of the preparer. The purpose of the record is central;
records specifically prepared for litigation are viewed as infused with
a motive to distort the truth. Certain Underwriters at Lloyd's, London
v. Sinkovich, 232 F.3d 200, 205 (4th Cir. 2000) (report of an insurance
investigator hired by plaintiff Underwriters was inadmissible as
prepared in anticipation of litigation, even though the investigator
regularly prepared such reports in the regular course of his business;
the primary motive was to prepare for litigation). Where accident
reports are prepared pursuant to a statutory duty, or a regular
business routine, some courts may find that they are not oriented
toward litigation. Other motives may also affect trustworthiness.
Opponents charged that the Restatement prepared in the WorldCom
case was unreliable because the preparers were motivated to
maximize the Restatement adjustments for tax purposes. The court
held that this possible motive did not justify exclusion of the
Restatement as untrustworthy, since it was required to comply with
“generally accepted accounting principles” (GAAP); was under
intense scrutiny from the courts, the SEC, and the parties; and was
created by scores of people, making any plan of manipulation
exceedingly difficult. In re WorldCom, Inc. Securities Litigation, 2005
U.S. Dist. LEXIS 2215, at *26-27. Where the original source of the
information or the method of preparation of the record is unclear or
unknown, courts may find untrustworthiness. Kay v. Lamar
Advertising of South Dakota, Inc., 2009 WL 2731054 (D.S.D.) (in an
personal injury case, speed of plaintiffs' motorcycle appearing in
ambulance report untrustworthy; source of the statement not
identified or explained; no evidence showing it was given in a routine,
business manner). It has been held that when the author of the
record is testifying as a witness, “the degree of reliability for
admission is greatly reduced.” United States v. Kaiser, 609 F.3d at
576.
 b. Opinions and Diagnoses
FRE 803(6) states that opinions and diagnoses contained within
records of regular activities are admissible. The potential subjectivity
of opinions and diagnoses do not

571

give rise to a categorical basis to object to their admission as

business records, so long as the regularity, contemporaneity, and
firsthand knowledge requirements of FRE 803(6)(A)-(C) have been
met. Thus, business records may include medical and other expert
opinions and conclusions. See In re WorldCom, Inc. Securities
Litigation, 2005 U.S. Dist. LEXIS 2215, at *26 (financial statement is a
business record even though it “reflects accounting judgments”). In
this respect, FRE 803(6) is broader than some of its state-law
counterparts. See Cal. Evid. Code §1271 (business records include
only “an act, condition, or event”).
The difficulty with admitting opinions and diagnoses is that there will
not necessarily be an opportunity to cross-examine the person who
made these statements. The opponent will be less able to explore the
underlying factual bases for the opinion or diagnosis and, in the case
of expert opinions, to explore the purported expert's degree of
expertise. In some cases, information about the expert or about the
factual support for the opinion may be available from the foundation
witness or may be contained in the document itself. To the extent that
such information is not available, the party against whom the
evidence is offered can argue for exclusion under the expert witness
rules: such as that the source has not been qualified as an expert
(FRE 702), or that the bases for the expert opinion cannot be
disclosed (FRE 703). Van der AA v. Commissioner, 2005 U.S. Tax Ct.
LEXIS 21 (U.S. Tax Ct.) (the business record rule does not override
the rules governing opinion testimony; court would not admit
valuation report into evidence without the availability of the author for
cross-examination). Some courts treat these issues as a question of
lack of trustworthiness under FRE 803(6). Aumand v. Dartmouth
Hitchcock Medical Center, 611 F. Supp. 2d 78, 86 (D.N.H. 2009)
(rather than seek exclusion of an opinion in a medical report, the
“adverse party bears the burden to show . . . lack of trustworthiness”).
Others analyze the issue under FRE 403, asking whether the
probative value of the evidence is substantially outweighed by the risk
that, in the absence of critical evaluation, the jury will be misled and
will give undue weight to the opinion. These concerns are particularly
significant “if the opinion involves difficult matters of interpretation and
a central dispute in the case, such as causation.” McCormick on
Evidence, Vol. 2 §293, at 322 (Kenneth S. Broun ed., 6th ed. 2006).
c. Records Containing Multiple Levels of Hearsay
If several people contribute to the creation of FRE 803(6) records,
then there are multiple levels of hearsay in the document. Under FRE
805, each level must fit within a hearsay exception or exemption. If
only FRE 803(6) is used to admit the entire document, then all
declarants must be shown to satisfy all of its factual requirements.
For example, in the case of the Damage Report just discussed, Joan
may have inspected the damaged goods and written notes about
them; then her assistant, Linda, may have entered the contents of the
notes onto a company Damage Form; and Eileen, the manager of the
division, may have actually written the Damage Report based on the
Damage Form. Each of these declarants perceived something as part
of their regular business duty: Joan perceived the damaged goods,
Linda perceived the notes, and Eileen perceived the Damage Form. If
the information is transmitted along this

572

business chain with near contemporaneity, then its final incarnation

as the Damage Report may fall within FRE 803(6). The actual maker
of the record, Eileen, does not have to have personal knowledge of
the damaged goods. Rather, it is sufficient, according to the language
of the rule, that the record was made at or near the time by—or from
information transmitted by—someone with knowledge. The custodian
or other foundation witness would be required to testify (or submit a
declaration) about the process by which the information was
transmitted and the record was created.
Records containing multiple levels of hearsay are created in a wide
variety of situations: A recording secretary may take notes on what
happened at a board meeting and give those notes to a stenographer
to transcribe; a doctor may orally recite her observations about a
patient, which are then recorded by a medical assistant; an employee
of a seller may report shipping information to an employee of a
purchaser, who then records it. In testifying about how third-party cost
estimates were incorporated into his own business records, a witness
testified that he would receive outside estimates, incorporate them
into his project file on his computer, do a scope comparison to see
that the estimate was what he requested, check the reasonableness
of the estimate, and look for mistakes or omissions. BP Amoco
Chemical Co. v. Flint Hills Resources, LLC, 697 F. Supp. 2d 1001,
1021-1022 (N.D. Ill. 2010).
At each level, there is of course some risk that the declarants may
fabricate, misunderstand, or incorrectly remember the events
reported or recorded. It is the belief that, in general, routinely
prepared records are accurate that justifies admission of the
documents.
Sources of Information with No Business Duty. What if the
original source of the information recorded in a business record is not
acting in the regular course of business—that is, has no business
duty to report on the events observed? In the preceding hypothetical
concerning the Damage Report, that Joan's Damage Report contains
the following statement: “Just after delivery, Bystander reported to me
that he had seen the seller's delivery truck in a rear-end collision on
the highway an hour previously.” If the Damage Report is offered to
prove that the rear-end collision caused the damage to the delivered
goods while in seller's custody, there is now an additional hearsay
step in the record—from Bystander to Joan. It is the truth of
Bystander's statement that the record is offered to prove. Bystander
has no business duty to observe or report this accident, or to ensure
the accuracy of Joan's record. Thus, the rationale for the business
records exception is not applicable to Bystander's statement to Joan.
Yet the record was made “from information transmitted by . . . a
person [Bystander] with knowledge.” FRE 803(6), if read literally,
would appear to make the record admissible.
As we have seen, FRE 803(6) has been interpreted as imposing a
requirement that the information in a business record be supplied by
persons with a business duty to report. Nevertheless, courts have
recognized an exception to this business duty requirement.
“[I]nformation provided by an outsider can become a business record
if it is shown that (1) the business has a policy of verifying the
information provided to it, or (2) the business possesses a sufficient
self-interest in the accuracy of the record to justify an inference of
trustworthiness.” MCC Mgmt. of Naples, Inc. v. Int'l Bancshares
Corp., 468 F. App'x 816, 828-829 (10th Cir. 2012); see United States

573

v. Sokolow, 91 F.3d 396, 403 (3d Cir. 1996) (proof of claim forms
submitted by insurance claimants were verified and audited before
being incorporated into the insurance adjuster's records). Although
FRE 803(6) has sometimes been used to apply to police reports,
courts have not extended this verification principle to them. Law
enforcement investigators have an interest in casting a wide net, and
typically record all witness statements rather than recording only
those which can be independently verified.
Use of Multiple Exceptions and Exemptions. The source of
information in a FRE 803(6) record may be a declarant whose
statement falls within another hearsay exception or exemption. If
Bystander's statement to Joan had been, “I just saw that truck in a
rear-end collision,” it might have been admissible under FRE 803(1),
the present sense impression exception. If so, combining that
exception for Bystander's statement with FRE 803(6) for the other
hearsay steps would make the entire record admissible, assuming
that Joan has a duty to report that a Bystander's statement was made
to her. What if a doctor's record describing a patient's symptoms
includes the patient's statement, “My arm is broken because I was
assaulted by Paul”? The patient's statements about the general
cause of injury may fit within FRE 803(4), the exception for
statements made for medical treatment. Naming the assailant,
however, is not likely to be pertinent to diagnosis or treatment.
Therefore, FRE 803(4) would probably not be available to admit the
name of the alleged attacker. And the information about who is
responsible for the patient's injury is arguably not pertinent to
treatment; therefore the doctor may have no professional duty to
record such information. Or the potential risks become a basis for
arguing that the recording of the statement about Paul lacks
trustworthiness.
Customer surveys are often taken by market research companies to
generate a report about what customers believe about products or
about their relationship with suppliers. The customers are not acting
within a business duty when they respond to a survey, but their
statements are usually admitted as “state of mind” under FRE 803(3)
as long as they are not used to prove facts remembered or believed.
DeBeans Cone Co., LLC v. Norse Dairy Systems, LLC, 678 F. Supp.
2d 883 (N.D. Iowa 2009) (categorizations of survey responses and
conclusions in the report are within the regular business activity of the
survey firm).
d. Computer Documents and Electronic Data
FRE 803(6) also permits reliance on computer, electronic and
website documents. See the Advisory Committee Note to FRE 803:
The form which the “record” may assume under the rule is described broadly . . . The
expression “data compilation” is used as broadly descriptive of any means of storing
information other than the conventional words and figures in written or documentary
form. It includes, but is by no means limited to, electronic computer storage.
Some computer documents, such as accounting records, represent
the storage and sorting of declarations of fact that are entered by
persons into the system. The process by which the data were input
and used must be pursuant to a regular duty in

574
accordance with regular practice. Some courts have also insisted on
evidence concerning procedures for input control, including tests to
insure accuracy and reliability. United States v. Scholle, 553 F.2d
1109 (8th Cir. 1997). Other computer documents, such as telephone
records, are automatically generated by the computerized system
without any human input of underlying data. These records may not
be hearsay at all because there is no human declarant making a
statement, but the accuracy of the process by which they are
produced is still necessary for authentication under FRE 901(b)(9).
Houston v. Smith, 2010 U.S. Dist. LEXIS, at *10-12 (satellite tracking
data processed through a computer authenticated by testimony of
data recipient).
Many businesses and organizations publish internal information
about their activities on websites. Every digital data entry is a record
of such information, and provided that all of the requirements are
satisfied, each printout of this information would be admitted under
FRE 803(6). For both computer and website documents, if the data
was collected and entered into the computer or onto the website in
the regular course of business, then printing out a document for
purposes of litigation does not trigger the untrustworthiness concerns
of Palmer v. Hoffman. Documents culled from a business's data base
by a query that selects a smaller subset of data is within the FRE
803(6) exception. Health Alliance Network, Inc. v. Continental
Casualty Ins. Co., 245 F.R.D. 121 (S.D.N.Y. 2007).
E-mail documents may also qualify as FRE 803(6) records if it can
be shown that it was the regular practice of employees to write and
maintain such e-mails. An exchange of e-mails between people in
different companies may also be admissible under FRE 803(6) if
adequate declarations as to business duty are provided by both
businesses. DirecTV v. Murray, 307 F. Supp. 2d 764 (D.S.C. 2004).

KEY POINTS
1. FRE 803(6) provides a hearsay exception for records of
“regularly conducted activit[ies],” which includes business as
 well as other types of organizations, and even possibly
individuals for activities sufficiently routinized and businesslike.
2. The records must be made and kept on a regular basis
pursuant to the regularly conducted activity, and must be
based on relatively recent information from firsthand sources
with a business duty to provide the information. Such
information can be passed from person to person within the
organization without taking the record outside coverage of
803(6), so long as each person has a business duty to report.
3. The factual requirements to admit a business record may come
either from a person with firsthand knowledge of the making
and keeping of the record, or from a person familiar with the
record-making and keeping practice of the organization. These
factual requirements are likely to satisfy the FRE 901-902
foundation requirements at the same time, and can be
supplied by an affidavit in place of a live witness.

575

4. The judge has discretion to exclude a business record if the

opposing party demonstrates that the information source or
circumstances of making the record indicate
untrustworthiness. Records made for litigation purposes, even
if routinely made, are given a presumption of
untrustworthiness in the case law.
5. The record may contain opinions and diagnoses, in addition to
other kinds of facts.
6. If the source of information is an outsider to the organization
(with no business duty to report), FRE 803(6) will still cover the
record if the organization makes it a routine practice to verify
the outside information. Otherwise, an additional level of
hearsay may be involved requiring combining the business
record exception with another exception or exemption.
 PROBLEMS
8.60. Return to Problem 8.57, at page 562. The notes written by
Leveritt Darnell are offered as business records under FRE
803(6) because Darnell is unavailable to testify. Who might
serve as the foundation witness for these notes? What
questions should be asked to satisfy FRE 803(6)? Will they be
admitted?
In addition, Defendant AMC will also offer a memorandum
evaluating Bolt's job performance that was written by Darnell
approximately five months after Bolt was terminated. Darnell
based the memorandum on (1) his own notes in Problem
8.57(b), and (2) interviews that he conducted with employees in
the Auditing Department who worked under Bolt. The
employees told him that from 2012 to 2015, Bolt kept
interfering in their assigned tasks, and that she refused to
delegate appropriate tasks to them. In this memorandum,
Darnell expresses his opinion that it was proper to discharge
Bolt (1) because of her lack of expertise in accounting
principles and (2) because she failed to manage her staff
effectively. He admits that this document was written to
“express management's perspective” in the face of an
impending EEOC investigation of Bolt's complaint. Is this
memorandum admissible as a business record under FRE
803(6)?
8.61. Joseph Reyes is charged with multiple counts of racketeering,
murder, assault, firearms, and narcotics violations, as well as
conspiracy charges, for the role he played as the head of a
large drug distribution organization. At the time of these
crimes, Reyes was confined in a state prison where he was
visited by Ralph Vargas and others to receive instructions.
Vargas became a cooperating witness and testified about his
meetings with Reyes in prison and the orders he received to
commit murders. To corroborate this testimony, the
government offers the visitor logbook from the prison, which
indicated that Vargas and other gang members visited Reyes
 on several occasions, including on days close in time to
several murders. The coordinator of inmate records at the
prison, who has overall responsibility for storing and
maintaining the logbooks, testified that visitors must sign the
logbooks in the prison lobby when they enter the

576

building and that they are required to show identification to the lobby
officer. The coordinator testified that she observed her own
visitors sign the books; that she had no personal knowledge
whether all visitors showed identification or whether the lobby
officer checked the identification against the log entry, but that
these were procedures that were supposed to be followed. The
logbooks themselves reflect irregularities such as missing
names, missing addresses, and different names in the same
handwriting. Reyes also contends that visitors of inmates have
an incentive to provide misinformation to avoid monitoring of
their contacts.
What arguments would you make on behalf of Reyes to
exclude the logbooks under FRE 803(6)? As the government,
how would you respond? What result?
8.62. Jeffrey Stanwick is on trial for securities fraud. The prosecution
seeks the admission of an e-mail sent by Stanwick's broker,
Stephanie Lane, to her supervisor, recounting a telephone
conversation that Lane had with Stanwick. The e-mail quotes
or summarizes various statements made by Stanwick, which
seem to show his guilty knowledge of a fraudulent scheme in
which he allegedly engaged. Lane is prepared to testify that it
was her regular practice to send such e-mails to coworkers
after important telephone conversations with clients. The
prosecution offers the e-mail as a business record. There is no
evidence that Lane had any reason to believe something illegal
was going on at the time of the phone conversation; she will
testify that this e-mail was sent to her supervisor strictly as a
matter of routine. But there is also no evidence that Lane's
 practice of sending out confirmatory e-mails was required of
her by her employer; rather it was something she did on her
own initiative. The defendant objects that Lane had no
“business duty to report” and therefore that the e-mail is not a
business record. How should the court rule?

13. Explanation of FRE 803(8): Public Records and Reports

Every jurisdiction permits certain public records and reports to be
admitted into evidence for their truth. The exception for public records
has common law origins, but there are also many statutes governing
the admissibility of particular kinds of public records. FRE 803(8)
provides for the admission of three types of records:
(8) Public Records. A record or statement of a public office if:
(A) it sets out:
(i) the office's activities;
(ii) a matter observed while under a legal duty to report, but not including, in a
criminal case, a matter observed by law-enforcement personnel; or
(iii) in a civil case or against the government in a criminal case, factual findings
from a legally authorized investigation; and
(B) the opponent does not show that the source of information or other
circumstances indicate a lack of trustworthiness.

577
a.Preliminary Factfinding
The basic factual requirements for public records under FRE 803(8)
are:

the statement is in the form of a record or statement of a public

office;
the contents set out the following:
the activities of that office;
matters observed under a duty imposed by law to report, but
not a matter observed by law enforcement in criminal cases;
or
factual findings from a legally authorized investigation, if in a
civil case or against the government in a criminal case.
 Activities of the Office. FRE 803(8)(A)(i) is generally interpreted to
admit records pertaining to a public office's own internal
“housekeeping” functions such as its own personnel records and
budgetary information. It also includes records of official activities of
the office that are necessary to the performance of its public duties
independent of any specific investigation or litigation. Such records
are likely to qualify as business records under FRE 803(6) as well as
public records, but the FRE 803(8)(A)(i) preliminary fact showing is
minimal compared to the factual requirements of FRE 803(6). In the
Johnson case, the “C” file on defendant Johnson contained records of
Johnson's movements into and out of the California Department of
Corrections, which set out the official activities of the CDC—housing
and transporting prisoners. This would probably have qualified as (A)
(i) public records. See United States v. Clarke, 628 F. Supp. 2d 15, 19
(D.D.C. 2009) (certificate of naturalization sets out the activity of the
INS, that is, a granting of a petition for naturalization by the Attorney
General).
FRE 803(8)(A)(ii): Matters Observed Under a Legal Duty to
Report. Records that report what public employees have observed
pursuant to their public duties are admitted under subsection (A)(ii)
upon a minimal foundation. Consider the differences between these
public reports and the records admitted under FRE 803(6). The
factual elements for business and other records of regular activities
require evidence of near contemporaneity and regularity—
circumstances that increase the trustworthiness of the records. These
indicia of reliability are not required by FRE 803(8)(A)(ii).
Observing and reporting matters under a legal duty to report rarely
requires independent proof of the pertinent law establishing such a
duty. Instead, a “legal duty” should be considered as roughly
synonymous with job responsibility: The legal duty is presumed from
the purpose of the public office itself and the scope of employment of
the public employee. The “matters” covered by the rule extend to
everything that might fall within the legal duty. Thus, (A)(ii) public
records span many fields, and may include weather reports, police
reports, records of border crossings, and accident scene
investigations.
The legal duty to report creates a limitation on the contents of the
public record that is closely analogous to the “business duty to report”
requirement that, we saw, has been read into FRE 803(6). Many
public records and reports are the product of multiple levels of
hearsay, when one public employee observes and reports
observations to a colleague or subordinate who is also a public
employee, and who then records

578

them. As long as each link in the chain bears a public duty, FRE
803(8)(A)(ii) encompasses the entire report. However, statements of
third parties who are not employed by the public entity do not have a
“legal duty to report.” Therefore, their statements constitute an
additional level of hearsay requiring an exception or exemption other
than FRE 803(8). Thus, “[i]t is well established that entries in a police
report which result from the officer's own observations and knowledge
may be admitted but that statements made by third persons under no
business duty to report may not.” United Technologies Corp. v. Mazer,
556 F.3d 1260, 1278 (11th Cir. 2009). Moral or legal obligations to
provide accurate information to law enforcement officials do not
qualify as a “legal duty to report” within the meaning of this exception.
FRE 803(8)(A)(iii): Factual Findings in Investigative Reports.
Subsection (A)(iii) provides for admission of a wide range of
government investigative reports in civil cases, and against the
government in criminal cases. The phrase “factual findings from a
legally authorized investigation” makes for a wide scope of admissible
reports, including official misconduct, accident reports by police, or
incident reports by specialized agencies, safety and diagnostic
studies relating to public health issues, and reports and studies on
housing and employment discrimination. Such reports are powerful
evidentiary tools, both because of the allegedly neutral weight of
government investigation behind them and because of the persuasive
impact of their findings and conclusions.
 FRE 803(8)(A)(iii) permits use of factual findings only in civil cases
and against the government in criminal cases. The prohibition against
use against criminal defendants is grounded on concern that multiple,
potentially inadmissible hearsay sources in such reports could run
afoul of the Sixth Amendment Confrontation Clause that protects a
criminal accused's right to confront and cross-examine witnesses.
The term “factual findings” has been authoritatively construed to
include evaluative opinions and conclusions contained in public
investigative reports. “As long as the conclusion is based on a factual
investigation and satisfies the Rule's trustworthiness requirement, it
should be admissible along with other portions of the report.” Beech
Aircraft Corp. v. Rainey, 488 U.S. 153, 170 (1988) (government report
concluding that pilot error caused naval air crash admissible as
“factual finding” under FRE 803(8).) The analytic difficulty of drawing
a line between “fact” and “opinion” and the opportunity for exclusion
of opinions and conclusions that lack trustworthiness under the
exclusionary clause of FRE 803(8) justified that interpretation. Id.
The scope of “factual finding” is not unlimited, however. The
following cases illustrate types of reports excluded from FRE 803(8)
(A)(iii) because not deemed factual findings. Roxbury-Smellie v.
Florida Dept. of Corrections, 324 Fed. App'x 783 (11th Cir. 2009)
(interview notes of statements of potential witnesses); Sullivan v.
Dollar Tree Stores, Inc., 623 F.3d 770 (9th Cir. 2010) (“pure legal
conclusion” that defendant was a “successor in interest”); Smith v.
Isuzu Motors Ltd., 137 F.3d 859 (5th Cir. 1998) (preliminary or interim
evaluative opinions and, interim reports).
FRE 803(8)(A)(ii): Exclusion for Criminal Cases. Subsection (A)
(ii) prohibits applying the public records exception to “a matter
observed by law-enforcement

579

personnel” “in a criminal case.” Reports authored by police officers

are readily identifiable as law enforcement. We will discuss at pages
580-82, infra, how courts have applied this term to other public
employees involved in law enforcement activities. Despite the text of
the rule, it has been held in most Circuits that criminal defendants
may offer FRE 803(8)(A)(ii) records against the government. United
States v. Carneglia, 256 F.R.D. 384 (E.D.N.Y. 2009). FRE 803(8)(A)
(iii) plainly permits use of factual findings only in civil cases and
against the government in criminal cases.
The prohibition against use of (A)(ii) observations and (A)(iii)
findings against criminal defendants is grounded on concern that
multiple, potentially inadmissible hearsay sources in such reports
could run afoul of the Sixth Amendment Confrontation Clause. That
clause protects a criminal accused's right to confront and cross-
examine witnesses. The prohibition overlaps somewhat with the
current definition of “testimonial hearsay,” but extends to
nontestimonial hearsay in such reports.
A criminal defendant is free to offer (A)(ii) observations and (A)(iii)
findings in his defense, against the government. Once the record is
admitted, the prosecution becomes free to use it against the
defendant. If the defendant offers part of a public record under (A)(ii)
or (A)(iii), the prosecution may be able to invoke FRE 106 to have the
rest of the report admitted, if excluding parts of the report would be
unfair or misleading.
Exclusion for Lack of Trustworthiness. FRE 803(8)(B) provides
an exclusion from the public records exception for lack of
trustworthiness. The exclusion for lack of trustworthiness applies to
all three subsections of FRE 803(8)(A). As with the similarly worded
untrustworthiness exclusion in FRE 803(6), the burden is on the
opponent to persuade the judge that the public record is
untrustworthy. As a practical matter, of course, the proponent should
be prepared to respond by citing factors that show trustworthiness.
Under FRE 803(B), the focus of most challenges is on the hearsay
nature of the underlying sources and the circumstances surrounding
the factual investigation. The Advisory Committee Note emphasizes
the timeliness of the report; the skill, expertise, and motivation of the
investigator; and the procedures followed in preparation of the record.
Desrosiers v. Flight International of Florida, Inc., 156 F.3d 952, 962
(9th Cir. 1998) (JAG report containing opinions regarding the cause of
an air crash was partially redacted as untrustworthy because the
author was not shown to be an expert, had not attended accident
reconstruction school, had no formal training in investigation of
aircraft accidents, and had not previously written such reports). It has
been held that the subsection (B) should be applied “in a common
sense manner . . . in determining whether the hearsay document . . .
has sufficient independent indicia of reliability to justify its admission.”
Hickson Corp. v. Norfolk Southern Railway Co., 124 Fed. App'x 336,
345 (6th Cir. 2005).
Preliminary Factfinding. In contrast with the relatively elaborate
factual requirements for business records under FRE 803(6), the FRE
803(8) requirements are relatively simple, such that a records
custodian is not required. Testimony by a police officer that she
prepared a report may be enough to qualify it as a public record.

580

FRE 902(a)(1) and (2) provide that public records can be

authenticated without a live witness, if they are certified and signed.
b. Justification for the Admissibility of Public Records
The rationale for the public records exception—at least with respect
to routine matters—is virtually identical to the rationale for the FRE
803(6) records exception: The inconvenience of calling public officials
to testify and the likelihood that public officials may not recall the
information in the records create the need for the exception. United
States v. Midwest Fireworks Mfg. Co., 248 F.3d 563, 567 (6th Cir.
2001) (the public records exception “is a practical necessity [for] . . .
government officers who have made in the course of their duties
thousands of similar written hearsay statements”). The public official's
duty and the likelihood that public access to the records will reveal
inaccuracies tend to ensure the records' reliability. As with all hearsay
exceptions, there must be a sufficient showing of personal knowledge
in subsection (A)(i) and (ii) records. There are no specific factual
requirements, however, that the record be made at or near the time of
the event or that it be a regular practice of the public agency to make
the record. Opinions and conclusions admitted under subsection (A)
(iii) may, as we shall see, rest on information outside the
investigator's own firsthand knowledge. “It is the methodology of
factual investigation which provides a threshold safeguard against
untrustworthiness.” Ariza v. City of New York, 139 F.3d 132, 133 (2d
Cir. 1998).

14. FRE 803(8)(A)(ii) and (iii) in Practice

The most contentious issues with the public records exception tend to
concern 803(8)(A)(ii) and (iii).
a. The Meaning of Law Enforcement Personnel
The phrase “law enforcement personnel” in 803(8)(A)(ii) requires
interpretation, so that we know what kinds of government reports are
excluded from criminal cases. Obviously, police officers fall within that
term. The question is, who else?8
“Law enforcement personnel” was initially given a broad
interpretation that has since been narrowed. An early Circuit court
opinion, United States v. Oates, 560 F.2d 45 (2d Cir. 1977), was
influential in the provision that is now 803(8)(A)(ii). On appeal from
the defendant's conviction for possession of heroin with intent to
distribute, the Second Circuit held that the reports of forensic
chemists were hearsay

581

and were “factual findings” under FRE 803(8)(A)(iii), thus

inadmissible against a criminal defendant. The court also considered
whether the documents were admissible under FRE 803(8)(A)(ii)
(then codified as 803(8)(B)). The court construed “law enforcement
personnel” “to include, at the least, any officer or employee of a
governmental agency which has law enforcement responsibilities”
and then elaborated on the extensive role Customs Service chemists
play in the development of evidence for criminal prosecutions. While
this interpretation is sensible, most courts since Oates have
interpreted “law enforcement” more narrowly, including the Second
Circuit. See, e.g., United States v. James, 712 F.3d 79, 89 (2d Cir.
2013) (autopsy reports by state medical examiners were not
observations by law enforcement personnel).
Prosecutorial Function. Courts have included within this
exclusionary language public officers whose functions are similar to
police officers. This includes public employees who perform a
“prosecutorial” or investigative function in specific cases. In part,
courts are responding to Congress's concern that it might violate a
defendant's confrontation right to use a police report instead of the
live testimony of a police officer, particularly when the report
contained the police officer's eyewitness account of criminal conduct.
The same concern would extend to other public officials who are
investigating specific cases of criminal conduct, such as customs
inspectors and border patrol agents. It also became clear that “law-
enforcement,” as interpreted by Oates, would exclude statements by
those who are not responsible for enforcing the criminal law, who
perform administrative duties in a regulatory scheme, make
administrative decisions, or seek compliance with fines and citations.
Since Oates, courts have upheld admission of the factual
observations contained in autopsy reports from the medical
examiner's office because the employees of the office had no
responsibilities for enforcing the law. The conclusions in the report as
to the manner and cause of death, however, would be excluded
under FRE 803(8)(A)(iii). United States v. Rosa, 11 F.3d 315 (2d Cir.
1993).
In a more recent case, an interview conducted by an official of the
Immigration and Naturalization Service (INS) resulted in the
prosecution of the defendant for having entered into a fraudulent
marriage and for lying on an immigration document. The Ninth Circuit
in United States v. Orellana-Blanco, 294 F.3d 1143, 1150 (9th Cir.
2002), overturned the trial court's admission of defendant's
statement, written by the official but signed by the defendant, under
FRE 803(B), now (A)(ii):
An interview such as the one in the exhibit is adversarial in nature. [Defendant] was
separated from his wife, obviously so that they could not coordinate their stories as they
 told them, and put under oath. Numerous cases treat INS officers and agents as “law
enforcement” personnel, which are covered by the exclusion to the hearsay exception.
Though the interview might not have been used for law enforcement purposes had the
INS officer been satisfied, it was in fact used for that purpose, and in the natural course
would be, if the INS was unsatisfied. Because [defendant] was put under oath and then
charged with lying under oath on the form, the interview itself, at the INS office, was the
“scene of the crime,” and Officer Kendall's notes were in fact his subjective recordation
of his aural observations at the scene of the crime as it took place.
In criminal cases, the focus on admissibility of many types of public
records now includes the question of whether such reports and
records are “testimonial”

582

statements of the declarant under the interpretation of the

confrontation clause set forth in Crawford v. Washington. See Section
G., infra.
Routine and Regular Activities. It is now well established that
routine, bureaucratic and nonadversarial reports made by law
enforcement personnel, and even by police officers, do not fall within
the subsection (A)(ii) exclusion. Thus, courts have admitted records
kept in an automated data base kept by the California Department of
Justice of firearms purchases from information provided by firearms
dealers; a federal Secret Service data base identifying counterfeit
currency by denomination, serial number, and date and location of its
seizure; a warrant of deportation, which records deportation of aliens;
reports of the time and date of crimes, but not the facts and
circumstances involved; a log of all 911 calls; stolen vehicle reports;
and records relating to the regular maintenance checks of a
breathalyzer unit. All of these records were considered reliable
because they were routine and ministerial, that is, not made in an
adversarial setting. Two recent cases appear to be somewhat more
problematic in holding that records are not made by “law-
enforcement” personnel: United States v. Dowdell, 595 F.3d 50 (1st
Cir. 2010) (arrest booking sheets containing identifying information
about the person arrested, including photograph and description of
clothing later used in an identification by an eyewitness); United
States v. Reyes, 2009 WL 3273896 (S.D. Fla.) (a Situation Report of
the names of persons taken on board a Coast Guard cutter,
according to standard practice, from a capsized ship smuggling illegal
aliens into the United States). Again, even for routine reports, the
question remains whether the statements made therein are
“testimonial” under Crawford.
b. The Relationship Between FRE 803(8)(A)(ii) and (iii) and Other Exceptions
If a report is excluded as a matter observed by law enforcement
personnel under FRE 803(8)(A)(ii), or a factual finding under FRE
803(8)(A)(iii), the report cannot be admitted under the public records
exception. But could it be admitted under another hearsay exception?
The two most obvious candidates for other applicable hearsay
exceptions to admit such government reports are business records
under FRE 803(6) and recorded recollections under FRE 803(5). The
court in Oates considered whether the two chemists' reports could
have been admitted as business records pursuant to FRE 803(6):
[T]he government argues . . . that the chemist's report and worksheet in the case at bar
fall clearly within the literal terms of . . . FRE 803(6) . . . [W]e assume for purpose of
argument here, that . . . the chemist's report and worksheet might fall within the literal
language of FRE 803(6) . . . This would not be the first time that a court has
encountered a situation pitting some literal language of a statute against a legislative
intent that flies in the face of that literal language. Our function as an interpretive body is,
of course, to construe legislative enactments in such a way that the intent of the
legislature is carried out . . . .
[P]olice and valuative reports not satisfying the standards of FRE 803(8)(B) and (C)
[now restyled as (A)(ii) and (iii)] may not qualify for admission under FRE 803(6) or any
of the other exceptions to the hearsay rule. . . . [560 F.2d at 73-77.]

583

Thus, under Oates, if a document is inadmissible under FRE 803(8)

because of the specific exclusionary terms in subsections (A)(ii) and
(iii), it would be a subversion of the legislative intent to permit the
document to be used as an FRE 803(6) business record. That
holding seems sound, because the justifications for admitting
business and public records are very similar. Most courts to consider
the issue have followed this aspect of Oates. See, e.g., United States
v. Hoffman-Vaile, 568 F.3d 1335, 1341 (11th Cir. 2009) (“Statements
inadmissible as public agency reports under Rule 803(8) may not be
received merely because they satisfy Rule 803(6).”); United States v.
King, 613 F.2d 670, 673 (7th Cir. 1980) (same); but see United States
v. Roulette, 75 F.3d 418, 421 (8th Cir. 1999) (admitted lab reports of
illegal drugs under FRE 803(6)). By the same token, it should not be
permissible to circumvent the specific limitations on the scope of FRE
803(8) by resorting to the residual exception FRE 807.
The rationale for prohibiting use of FRE 803(6) “as a back door for
evidence excluded by [FRE 803](8),” however, does not apply with
the same force to FRE 803(5). Recall that that rule requires the
attendance of the author of the public record as a witness, obviating
much of the confrontation-related concern. Contrary to some dicta in
Oates, if the police or law enforcement officer does testify and is
available for cross-examination, courts seem willing to allow use of
FRE 803(5) by the government in criminal cases, even though the
recorded recollection also happens to be in a public record made by
law enforcement personnel. United States v. Sawyer, 607 F.2d 1190
(7th Cir. 1979); see also Goy v. Jones, 72 P.3d 351, 353 (Ariz. Ct.
App. 2003).

15. FRE 803(8): The Problem of Multiple Hearsay Sources Within

Investigative Reports
a. Is the Report Itself Admissible?
Many investigations that result in factual findings are based on
hearsay information. Factual findings might be based on interviews of
witnesses conducted by the investigator or on research evaluating
both public and private records. In the Beech case, for example, the
investigator relied on eyewitness accounts of the plane crash and
reports analyzing the condition of the aircraft after the crash.
Subsection (A)(iii) clearly contemplates that the investigator may use
those sources, evaluate them, and then reject them or rely on them in
making factual findings. Thus, unlike records under FRE 803(6) and
public records under FRE 803(8)(A)(ii), where all sources must be
operating under a “business” or organizational or legal duty to
conform to the requirement of the exceptions, sources relied on under
FRE 803(8)(A)(iii) need not be operating under any sort of public duty
in relaying information to the investigator. In re September 11
Litigation, 621 F. Supp. 2d 131, 156 (S.D.N.Y. 2009) (“relevant and
appropriate findings made by the Commission are potentially
trustworthy and admissible. . . . The Commission heard 160
witnesses, was free from bias, and conducted public hearings that
were the adequate equivalent of cross-examination. . . .”).
Some hearsay sources may fall within their own exception or
exemption to the rule of exclusion—for example, excited utterances,
statements of parties, or business

584

records. This would satisfy FRE 805 and would also provide some
circumstantial guarantees of trustworthiness. Weinstein v. Stevens,
2010 WL 4824952, at *5 (E.D. Mich. 2010) (third-party witness
statements were defendants' employees, authorized to speak on the
subject or speaking about matters within the scope of their
employment, thus entirely admissible). If the underlying hearsay
sources are not admissible, one safeguard may be the public
agency's ability to evaluate such sources before it decides to rely on
them. If the original source has personal knowledge and no reason to
misrepresent the information to the public official, under the
circumstances, then the public report may be admitted. In re Air
Disaster at Lockerbie Scotland on December 21, 1988, 37 F.3d 804
(2d Cir. 1994) (investigation of air crash relied in part on
computerized records of passenger baggage based on hearsay
reports from passengers' and crew members' friends and relatives).
But if factual findings are based on hearsay sources that are
unidentified or that the court finds to be unreliable, the report itself
may be excluded as lacking in trustworthiness. Lang v. Cullen, 725 F.
Supp. 2d 925, 959 (C.D. Cal. 2010) (presentence report inadmissible
under FRE 803(8) because the sources are not subject to evidentiary
standards and may also contain factual errors); Hickman v. Norfolk
Southern Railway Co., 124 Fed. App'x at 346 (unknown source
reporting a toxic leak, transmitted by multiple levels of hearsay
through state agencies and resulting in an erroneous time of
occurrence, lacked “the necessary indicia of reliability”); Miller v.
Field, 35 F.3d 1088 (6th Cir. 1994) (judgment for defendants reversed
on grounds of erroneous admission of official report disputing alleged
inmate rape of plaintiff, since report was based on inadmissible
hearsay statements of the assailants and the local prosecutor).
b. Are Otherwise Inadmissible Hearsay Sources Admissible?
FRE 803(A)(iii) does not admit otherwise inadmissible hearsay
sources for the truth of the matters they assert, even if they are relied
on by the author of the report. In re September 11 Litigation, 621 F.
Supp. 2d at 157: “The statements of the terrorists, even though found
in The 9/11 Report, cannot qualify as factual findings [and] . . . will be
excluded.” If inadmissible sources appear in the text of the public
report, the jury might decide to use them anyway, in violation of the
basic principle of the hearsay rule of exclusion. Thus, there is a
conflict between admitting the investigator's entire report—including
the substantive contents of all of its sources—and keeping
inadmissible hearsay from the jury. A similar conflict exists when
opinions of testifying expert witnesses are admitted together with all
of the expert's underlying, potentially inadmissible sources, as will be
discussed in Chapter Nine. FRE 703 now provides its own approach
to this conflict, as we will discuss infra. It seems possible that the
balancing test provided in Rule 703 could be applied to subsection
(A)(iii) reports as well. The jury would be instructed that the
underlying hearsay sources are admitted not for their truth but in
order for the jury to evaluate the basis for the investigation's findings.
Otherwise, the hearsay sources would be redacted from the report, or
application of the untrustworthiness clause of Rule 803(8) could be
used to exclude the report altogether.

585
c. Administrative Findings
It is well established that the findings and conclusions that result
from judicial proceedings do not fall within FRE 803(8)(A)(iii). Nipper
v. Snipes, 7 F.3d 415, 417 (4th Cir. 1993) (“a judge in a civil trial is not
an investigator”). However, agency hearings within the executive
branch, even those presided over by officials called Administrative
Law Judges, do qualify as investigations. In a case involving a trial-
type hearing, the presentations of witnesses, cross-examination and
a review of records and tests, the ALJ issued a decision with detailed
factual findings concerning the airworthiness of an airplane for
purposes of suspending the aircraft's National Transportation Safety
Board certificate of airworthiness. These findings and decision were
later admitted in a trial for breach of contract against the company
that had attempted to restore the aircraft to airworthy condition. Zeus
Enterprises, Inc. v. Alphin Aircraft, Inc., 190 F.3d 238 (4th Cir. 1999).
Such findings are not automatically admissible, however. The trial
judge has discretion pursuant to FRE 403 to assess the probative
value of such reports and findings, as well as their Rule 403 dangers:
The party against whom such a determination is admitted must attempt to expose the
weaknesses of the report . . . an effort that may well confuse or mislead the jury and
result in an undue waste of time . . . We believe that the district court is in the best
position to consider the quality of the report, its potential impact on the jury, and the
likelihood that the trial will deteriorate into a protracted and unproductive struggle over
how the evidence admitted at trial compared to the evidence considered by the agency.
[Paolitto v. John Brown E.&C., Inc., 151 F.3d 60, 65 (2d Cir. 1998).]

PROBLEMS
8.63. Return to problem 8.59 at page 563. Suppose Officer Curtis's
police report does not refresh her recollection in the burglary
prosecution. Can she read passages of the report into
evidence?
8.64. At the trial of a suit filed against Dolores Rio for causing an
intersection collision because she failed to stop for a blinking
red light, Dolores offers a police report written by the officer
who came to the scene of the collision. The report states that
Frank Chan, the plaintiff, was talking on a cell phone when he
drove into the intersection. The officer testifies at trial to
authenticate the report and states that he cannot recall
whether the information that he wrote down came from the
 plaintiff, from someone accompanying the plaintiff, or from a
third party who observed the accident. Is the police report
admissible to prove the plaintiff's conduct?
8.65. Return to Problem 3.2, Pedroso v. Driver, on page 148. The
defendants offer a police report filed on the day of the accident
by Officer Rojas who arrived at the scene five minutes after the
accident. The report describes the location and position of the
school bus after the impact. It states that Driver said, “Paul ran
out unexpectedly.” It also states “Officer Nelson arrived at the
scene a few minutes after I did. She interviewed children who
had witnessed the incident. She

586

reports that several of them claimed that the boy ran in front of the
bus, and that although they were very distressed, they seemed
to be reliable.” In the space for “Conclusions,” Officer Rojas
wrote “No apparent violation.” How much of the police report
can the defendants introduce against plaintiffs? Must Officer
Rojas testify as a witness in order to secure the report's
admission?
8.66. John James, a New York City policeman, filed a civil rights suit
against the city and the Police Department for unlawful
retaliation taken against him because he made public
statements criticizing some of the Department's controversial
policies. He seeks admission of portions of a report written and
circulated by the Department's Internal Affairs Bureau entitled
''Police Corruption and Culture.'' He argues that the report
should be admitted pursuant to FRE 803(8)(C) and that these
portions of the report are relevant to prove the existence of an
unofficial policy of retaliation against officers who speak out
about the Department's problems in general. The report was
the product of a project in which 23 groups of 12 to 15 officers
each convened to participate in guided group discussions. The
report then summarized the discussions, which included the
unofficial retaliation James seeks to prove, and made
 generalized recommendations regarding future departmental
behavior. Its stated purpose was ''to identify and explore some
of the prevailing attitudes, perceptions, and opinions of Police
Officers toward a range of integrity-related issues.'' For the
defendants, what objections would you make to the admission
of this report? Are any other hearsay exceptions or exemptions
available? What result?

16. Other Exceptions for Records Under FRE 803

In addition to the business and official records exceptions, FRE 803
contains a variety of exceptions for other types of records. You should
read FRE 803(9), (11), (12), (13), (14), (15), (16), and (17) at least
once. These exceptions for the most part are based on the notion that
the records are likely to be reliable because of the nature of the entity
preparing them, the routine nature of their preparation, and their
subject matter. The scope and operation of these exceptions should
be easily discernable from the language of the rule and the Advisory
Committee Notes.
FRE 803(18) provides that a court can admit into evidence an
excerpt from a treatise or periodical when it “is called to the attention
of an expert witness on cross-examination or relied on by the expert
on direct examination” and when “the publication is established as a
reliable authority by the expert's admission or testimony, by another
expert's testimony, or by judicial notice.” For this hearsay exception to
apply, the publication's proponent must show that it is authored by a
“reliable authority.” Ostensibly, any source identified by the expert
witness as authoritative would satisfy this requirement. Recently,
however, the Supreme Judicial Court of Massachusetts ruled that this
is not the case and that organizations such as hospitals and even
universities cannot satisfy the “reliable authority” requirement by their
institutional credentials. This requirement—the Court explained – can
only be satisfied by the person who authors the publication. Kace v.
Liang,—N.E.3d—2015 WL 5253356 (Mass.

587
 2015). We believe that this interpretation is too narrow. There is no
good reason to exclude reputable institutional publications (e.g.,
Mayo Clinic web pages) verified by an expert witness. This
interpretation also strengthens the pro-incumbent bias of academic
and professional publishers, who tend to prefer reputable authors
over young and not yet established academics and professionals.
Those publishers now have an additional reason for acting upon that
preference: it will make their publications admissible as evidence and
increase sales.
FRE 803(7) and FRE 803(10) set forth hearsay exceptions for the
absence of entries in business, organizational and public records,
offered for the purpose of proving the nonoccurrence or nonexistence
of a matter if that matter was of a kind that was regularly recorded if it
occurred or existed. As the Advisory Committee noted, it is unlikely
that the failure to make the entry is the result of a conscious intent to
assert that an event did not occur. Thus, the failure to make an entry
may not constitute a hearsay “statement” in the first place. The
exceptions exist, according to the Advisory Committee, “[i]n order to
set the question at rest in favor of admissibility. . . .” The search for
public records must be diligent, and a showing must be made that the
documents searched are proper FRE 803(6) or public records. The
results of such a search have been held not to be excluded in
criminal cases by the exclusionary clauses of subsections FRE
803(8)(a)(ii) and (iii). United States v. Mendez, 514 F.3d 1035, 1044-
1045 (10th Cir. 2008) (search in U.S. Central Index System
containing regularly reported data on legal entries into the United
States did not disclose defendant's name, indicating he had not
entered the country legally; absence of public record admissible
pursuant to FRE 803(10) and not excluded as created with an eye
toward litigation by FRE 803(8)(B), now (A)(ii)).

KEY POINTS
1. FRE 803(8) provides for the admission of (A)(i) records of the
activities of public offices and agencies, (A)(ii) matters
 observed pursuant to public duty to report by employees of
public offices, and (A)(iii) public investigative reports, including
factual findings. The factual requirements are largely limited to
identifying the document as coming from a “public office.” The
judge has discretion to exclude a public record if the opposing
party demonstrates that the information source or “other
circumstances” indicate untrustworthiness.
2. The information in a public record may go from person to
person within the public office without taking the record outside
coverage of 803(8), so long as each person has a “legal duty
to report.” The legal duty is one imposed due to employment
by the public agency, and does not extend to outsiders,
bystanders, etc. Where relevant information comes from such
outside sources, an additional level of hearsay may be
involved requiring combining the public record exception with
another exception or exemption
3. In criminal cases, the prosecution may not use FRE 803(8)(A)
(ii) to admit reports of matters observed by law enforcement
officials against criminal

588

defendants. This limitation may not apply to matters observed by

public officers not engaged in the investigation or prosecution
of criminal cases. It plainly does not apply to FRE 803(A)(i)
routine “housekeeping” records.
4. Under FRE 803(8)(A)(iii), factual findings include opinions and
conclusions. Investigative reports and factual findings may not
be used by the prosecutor against defendants in criminal
cases. Multiple hearsay contained in such reports may be
used as the basis for the findings, but unless it falls within an
exemption or exception, is not admitted for its truth. Courts
may also exclude factual findings as lacking trustworthiness
because of reliance on inadmissible and unreliable hearsay.
17. Explanation of FRE 803(22): Judgment of Previous
Conviction
A judgment on the merits in a criminal or civil action is relevant to
prove the actual occurrence of the facts essential to support the
judgment. The judgment is hearsay evidence of those facts. Indeed, it
may be multiple hearsay. A defendant's plea of guilty is itself a
hearsay statement, and a judge's or a jury's conclusions about the
evidence presented in a trial or summary proceeding are offered to
prove the truth of those conclusions.

FRE 803(22) PROVIDES FOR THE USE OF CRIMINAL FELONY CONVICTIONS:

(22) Judgment of a Previous Conviction. Evidence of a final judgment of conviction if:
(A) the judgment was entered after a trial or guilty plea, but not a nolo contendere
plea;
(B) the judgment was for a crime punishable by death or by imprisonment for more
than a year;
(C) the evidence is admitted to prove any fact essential to the judgment; and
(D) when offered by the prosecutor in a criminal case for a purpose other than
impeachment, the judgment was against the defendant.
The pendency of an appeal may be shown but does not affect admissibility.

a. Preliminary Factfinding
The factual requirements for the use of a final judgment of
conviction are as follows:

the judgment must follow a criminal trial or guilty plea;

the judgment must be for a crime punishable by death or more
than one year's imprisonment;
the judgment must be offered to prove any fact essential to the
judgment; and
a judgment offered against a criminal defendant must be a
judgment entered against that defendant, unless it is offered only
for impeachment.

589

The relevance of a judgment to prove underlying events requires a

determination as to what “essential” facts were necessarily decided
by the judge or jury. Also keep in mind that the judgment serves only
as some evidence of those facts. The exception does not raise issues
of the possible binding effect of a prior judgment—a matter to be
resolved under principles of collateral estoppel or issue preclusion.
b. Justification for the Admissibility of Criminal Judgment
FRE 803(22) reflects confidence that a judgment of guilt in a
criminal felony case is reliable proof of the facts essential to sustain
the judgment. The high standard of proof—beyond a reasonable
doubt—is probably the strongest argument in favor of reliability. The
exclusion of judgments entered after a plea of nolo contendere is
based on the fact that a nolo plea, which can be entered only with the
leave of the court, is specifically designed to resolve a criminal matter
without the expense of a trial or the defendant's acknowledgment of
guilt. Evidence of judgments entered against persons other than the
defendant are excluded from criminal trials, unless used for
impeachment, because of concern about the defendant's right to
confront and cross-examine those adverse witnesses whose
testimony provided the basis for judgment. United States v. Austin,
786 F.2d 986 (10th Cir. 1986) (marijuana convictions reversed
because government informed jury that ten co-conspirators had
already been convicted for participating in the same alleged
conspiracy). Confidence in the reliability of judgments in civil cases is
not so deeply felt. When claims involve substantial monetary
damages or important principles, it is reasonable to believe that the
parties will put forth their best efforts in trying to vindicate their
positions. Nevertheless, the standard of persuasion—a
preponderance of the evidence—is significantly lower than in criminal
cases. If the stakes are small, a litigant may not have a serious
interest in devoting the resources that would be necessary to
vindicate the litigant's position. Even if one wanted to include
judgments from major civil cases, any attempt to define the difference
between major and minor cases would probably seem quite arbitrary.
c. The Admission of Misdemeanor Convictions for Impeachment
The most frequent use of judgments is to impeach testifying
witnesses pursuant to FRE 609. As we noted in Chapter Seven,
courts invariably admit misdemeanor convictions for crimen falsi to
impeach witnesses pursuant to FRE 609(a)(2), even though
misdemeanors are not included within FRE 803(22).

E. HEARSAY EXCEPTIONS REQUIRING THE UNAVAILABILITY

OF THE DECLARANT

FRE 804 provides five categorical hearsay exceptions that may be

used only when the hearsay declarant is unavailable—former
testimony, dying declarations, declarations

590

against interest, statements of personal and family history, and

statements offered against a party whose wrongdoing procured the
unavailability of the declarant as a witness.
Why unavailability is a requirement for only these five categorical
exceptions is by no means clear. The Advisory Committee Note to
FRE 803 suggests that unavailability is not required for the FRE 803
exceptions because they are reliable hearsay and, therefore, as
acceptable as live testimony. By contrast, according to the Advisory
Committee, hearsay falling within an FRE 804 exception “is not equal
in quality to testimony of the declarant on the stand. . . .” These
hearsay statements are admissible only as a last resort; that is, only if
the declarant is unavailable to testify in person.
We encourage you to think critically about whether there is a
significant reliability difference between the Rule 803 and the Rule
804 exceptions. At the same time, we caution you against trying too
hard to come up with an overarching theory to rationalize the existing
law. The earliest common law exceptions—former testimony and
dying declarations—were both premised in part on arguments of
necessity because of death; dying declarations were also premised in
part on religious beliefs. It is likely that historical precedent is the best
explanation for the current state of the unavailability requirement.

1. FRE 804
 RULE 804. EXCEPTIONS TO THE RULE AGAINST HEARSAY—WHEN THE
DECLARANT IS UNAVAILABLE AS A WITNESS
(a) Criteria for Being Unavailable. A declarant is considered to be unavailable as a
witness if the declarant:
(1) is exempted from testifying about the subject matter of the declarant's statement
because the court rules that a privilege applies;
(2) refuses to testify about the subject matter despite a court order to do so;
(3) testifies to not remembering the subject matter;
(4) cannot be present or testify at the trial or hearing because of death or a then-
existing infirmity, physical illness, or mental illness; or
(5) is absent from the trial or hearing and the statement's proponent has not been
able, by process or other reasonable means, to procure:
(A) the declarant's attendance, in the case of a hearsay exception under Rule
804(b)(1) or (6); or
(B) the declarant's attendance or testimony, in the case of a hearsay exception
under Rule 804(b)(2), (3), or (4).
But this subdivision (a) does not apply if the statement's proponent procured or
wrongfully caused the declarant's unavailability as a witness in order to prevent the
declarant from attending or testifying.
(b) The Exceptions. The following are not excluded by the rule against hearsay if the
declarant is unavailable as a witness:

591
(1) Former Testimony. Testimony that:
(A) was given as a witness at a trial, hearing, or lawful deposition, whether given
during the current proceeding or a different one; and
(B) is now offered against a party who had—or, in a civil case, whose
predecessor in interest had—an opportunity and similar motive to develop it by
direct, cross-, or redirect examination.
(2) Statement Under the Belief of Imminent Death. In a prosecution for homicide or
in a civil case, a statement that the declarant, while believing the declarant's death to
be imminent, made about its cause or circumstances.
(3) Statement Against Interest. A statement that:
(A) a reasonable person in the declarant's position would have made only if the
person believed it to be true because, when made, it was so contrary to the
declarant's proprietary or pecuniary interest or had so great a tendency to invalidate
the declarant's claim against someone else or to expose the declarant to civil or
criminal liability; and
(B) is supported by corroborating circumstances that clearly indicate its
trustworthiness, if it is offered in a criminal case as one that tends to expose the
declarant to criminal liability.
(4) Statement of Personal or Family History. A statement about:
(A) the declarant's own birth, adoption, legitimacy, ancestry, marriage, divorce,
relationship by blood, adoption, or marriage, or similar facts of personal or family
history, even though the declarant had no way of acquiring personal knowledge
about that fact; or
 (B) another person concerning any of these facts, as well as death, if the
declarant was related to the person by blood, adoption, or marriage or was so
intimately associated with the person's family that the declarant's information is
likely to be accurate.
(5) [Other Exceptions.] [Transferred to Rule 807.]
(6) Statement Offered Against a Party That Wrongfully Caused the Declarant's
Unavailability. A statement offered against a party that wrongfully caused—or
acquiesced in wrongfully causing — the declarant's unavailability as a witness, and
did so intending that result.
Our initial discussion focuses on FRE 804(a). We discuss the
remainder of the rule later in the chapter.

2. Explanation of FRE 804(a): Grounds for a Finding of

Unavailability
FRE 804(a) contains a broad, reasonable definition of unavailability
that applies to the exceptions under FRE 804(b)(1)-(4), though not to
FRE 804(b)(6). Before the adoption of the Federal Rules, what
constituted unavailability would vary among jurisdictions and even
among hearsay exceptions within a single jurisdiction. For

592

some exceptions, a claim of privilege or absence from the jurisdiction

or, occasionally, even absence from the courtroom would suffice. For
dying declarations, death was the only acceptable type of
unavailability. Now, any of the five subparts may be used for any of
the 804(b)(1)-(4) exceptions.
Preliminary Factfinding. As is generally true in applying the
hearsay exceptions, these preliminary questions are to be decided by
the judge pursuant to FRE 104(a). Statements of counsel to the court
have been held sufficient to establish the absence or unavailability of
a witness under FRE 804(a)(5), so long as good-faith efforts have
been made to secure the witness, including requests for voluntary
attendance and subpoenas. But when the issue is a witness's claim
of privilege under FRE 804(a)(1), some courts hold that statements
from counsel are insufficient to show that the witness actually will not
testify. In other words, the witness must claim the privilege in court.
Invocation of FRE 804(a)(2) requires the witness's presence in court
and a court order directing the witness to testify; FRE 804(a)(3)
requires testimony from the witness as to failed memory but not a
court order. Evidence that a mental or physical infirmity (confined to
home because of heart condition, unable to walk because of back
condition, incapacitated by a stroke) will continue for some length of
time is usually necessary under FRE 804(a)(4); otherwise, the court
may seek a continuance in order to call a witness who is merely ill, if
the testimony is significant. United States v. Amaya, 533 F.2d 188
(5th Cir. 1976) (FRE 804(a) requirement of unavailability satisfied by
probability that the duration of illness or loss of memory will be long
enough so that the trial cannot be postponed).
Preference for Former Testimony or Deposition. FRE 804(a)(5)
states a preference for former testimony that applies when the
declarant is absent, but not deceased. The purpose of FRE 804(a)(5)
(B) is to make clear that the proponent of an absent declarant's dying
declaration, declaration against interest, or declaration of pedigree
must first use the declarant's former testimony or deposition; if none
exists, the proponent must make reasonable efforts to obtain the
declarant's deposition testimony (and seek the declarant's attendance
as a witness) as a precondition to the declarant being held to be
unavailable. The preference for former testimony, and the
requirement of an attempt to depose a declarant, may reflect even
stronger suspicion about the reliability of FRE 804(b)(2), (3), and (4)
exceptions. After studying these exceptions, you can decide whether
this suspicion makes sense.
Unfortunately, this preference sometimes produces problematic
results. Where the absent declarant has flatly denied wrongdoing in a
deposition taken for a tort case, but has made inculpatory hearsay
statements to various people that the defendant seeks to admit, it has
been held that the deposition must be used pursuant to FRE 804(a)
(5) and that the oral statements are inadmissible for their truth
(though, presumably, they could be used to impeach). Campbell v.
Coleman Co., 786 F.2d 892 (8th Cir. 1986).
 Reasonable Means to Procure Attendance. “Reasonable means”
to procure the attendance of an absent witness under FRE 804(a)(5)
requires a good-faith effort on the part of the proponent of hearsay,
but not the doing of a futile act. At least one

593

circuit has held that, when the government has the name and
address of a foreign witness, some effort must be made to contact
that witness in the witness's native country or else a finding of
unavailability will be error. United States v. Pena-Gutierrez, 222 F.3d
1080, 1086 (9th Cir. 2000). Offers from the government to pay airfare,
met with refusal by the foreign witness, has been held to be a
reasonable effort. United States v. Siddiqui, 253 F.3d 1318, 1323-
1324 (11th Cir. 2000). A decision by the government not to personally
serve subpoenas on two allegedly unavailable witnesses until after
the first day of trial was found not to be “reasonable” absent further
extenuating facts. United States v. Pluta, 176 F.3d 43, 48 (2d Cir.
1999); compare United States v. Olafson, 213 F.3d 435 (9th Cir.
2000) (in a criminal case, district court has broad discretion under
Fed. R. Crim. P. 15(a) in deciding whether to order a deposition, and
it is not unreasonable to refuse to do so when conditions in Mexico
make it unsafe for American prosecutors, and there is no indication
that the unavailable witnesses would cooperate).
Unavailability Caused by the Proponent. If a witness is unable to,
or refuses to, testify because of the conduct of the proponent of the
hearsay statement, FRE 804(a) directs that the witness not be found
to be unavailable. Proof of threats made against a witness are not
enough; there must be an actual finding of presumptive unavailability.
United States v. Pizarro, 717 F.2d 336 (7th Cir. 1983). There must
also be a finding of “purpose” underlying the proponent's conduct.
The government's carelessness in losing custody of a witness, or an
inability to keep track of a witness, may not qualify as causing
“unavailability” of that witness under FRE 804(a). It has also been
held that the government's refusal to grant immunity to a witness who
exercises a Fifth Amendment right not to testify is neither
“procurement” nor “wrongdoing” and does not negate the witness's
status as “unavailable” under FRE 804(a)(1), so that prior testimony
may be admissible. United States v. Dolah, 245 F.3d 98, 103 (2d Cir.
2001).

PROBLEM
8.67. Consider which of the following may be sufficient to constitute
unavailability for the purposes of satisfying FRE 804(a). What
other steps might the proponent have to take before
unavailability is adequately proved?
(a) A criminal defendant asserts the Fifth Amendment
privilege not to testify at trial and the defense offers the
defendant's own prior testimony.
(b) A witness invokes the Fifth Amendment privilege against
self-incrimination in court.
(c) The party offering the hearsay evidence submits his or
her attorney's affidavit stating that the declarant is in
another state beyond the subpoena power of the court.
(d) The party offering the hearsay evidence submits the
declarant's affidavit stating that the declarant does not
recall the events in question.
(e) The hearsay declarant is on the witness stand and claims
to have no current memory of the events in question, and
the judge believes this testimony.

594

(f) The hearsay declarant is on the witness stand and claims

to have no current memory of the events in question, and
the judge does not believe this testimony.

3. Explanation of FRE 804(b)(1): Former Testimony

FRE 804(b)(1) states:
(b) The Exceptions. The following are not excluded by the rule against hearsay if the
declarant is unavailable as a witness:
 (1) Former Testimony. Testimony that:
(A) was given as a witness at a trial, hearing, or lawful deposition, whether given
during the current proceeding or a different one; and
(B) is now offered against a party who had—or, in a civil case, whose
predecessor in interest had—an opportunity and similar motive to develop it by
direct, cross-, or redirect examination.

a. Preliminary Factfinding
The factual requirements for former testimony are:

the statement must be in the form of testimony given at a hearing

or in a “lawful” deposition;
in a criminal case, the party against whom the statement is being
offered must have had an opportunity and similar motive to
develop the testimony at the prior hearing or deposition by direct,
cross- or redirect examination; and
in a civil case, either the party against whom the statement is
being offered, or a predecessor in interest to that party, must
have had an opportunity and similar motive to develop the
testimony at the prior hearing or deposition by direct, cross- or
redirect examination.

Trial, Hearing, or Lawful Deposition. This phrase broadly includes

transcripts or other recordings of sworn testimony given at a formal
adversarial proceeding before a person authorized to administer
oaths. It thus includes trials, evidentiary hearings in court, adversarial
administrative hearings, and “lawful deposition[s].” This latter phrase
simply means a deposition taken in conformity with a procedural code
governing the resolution of disputes. See, e.g., Fed. R. Civ. P. 30. The
former testimony need not have been given in the same case in
which the former testimony is currently being offered. In other words,
in the case at hand, a party could use FRE 804(b)(1) to offer a
transcript of testimony from a prior trial or a deposition taken in a
wholly different case. The former trial or deposition might even be
from a case in a different court system (such as a state court).
Opportunity and Similar Motive to Develop the Testimony. Any
former testimony admitted under FRE 804(b)(1) must have been
created in a proceeding in which the opposing party (against whom
the testimony is now offered) had an

595

opportunity and motive to examine the witness. Generally, this

requires an adversarial proceeding. But testimony from an ex parte
proceeding such as a grand jury hearing could be offered against the
prosecution.
For example:
Paula has sued Drew for personal injuries caused in an automobile accident. Wilma, a
passenger in Drew's car, testifies for Paula that Drew was drunk at the time and had
been driving on the wrong side of the road. There is a judgment for Paula, but the
judgment is reversed on appeal because of improper jury instructions and a new trial is
ordered. Wilma dies before the retrial, so Paula offers a transcript of Wilma's testimony
from the first trial.
Even though Wilma's former testimony is hearsay, it will be
admissible against Drew in the retrial under FRE 804(b)(1). All of the
factual requirements are satisfied. Wilma's statement was given at
the first trial, obviously a hearing. Drew was the adverse party at that
trial. Because exactly the same factual issues about which Wilma
testified are disputed in the retrial, Drew's motive to develop the
testimony fully was as great at the first trial as it is now. Moreover,
Drew had an opportunity to develop the testimony through cross-
examination. And it is clear that opportunity is enough, even if Drew
did not take advantage of it. Nor is it necessary that the former
testimony have been given in a trial or formal hearing: So long as the
opportunity and similar motive requirements are satisfied, testimony
taken in Wilma's deposition during discovery could be admitted under
FRE 804(b)(1) as well.
The “similar motive” requirement is a recognition that not all
opportunities to examine a witness are equal. The procedures may
differ, and the former hearings may have raised different issues that
did not require examining the witness on the now-relevant subject.
For example, suppose a criminal defendant's alleged co-conspirator
testifies at a hearing to suppress evidence of packages of cocaine
found in the search of his car. If the only issue at the hearing is the
legality of the search, the only relevant facts in the hearing may be
whether the alleged co-conspirator consented to the search of the
car. In such a case, the defendant would not have the motive to fully
explore the nature of the alleged conspiratorial relationship. In United
States v. Duenas, 691 F.3d 1070 (9th Cir. 2012), the Court held that a
criminal defendant did not have a similar motive to develop a police
officer witness's testimony at a suppression hearing as at trial: “The
issue at trial was whether the evidence proved [the defendant's] guilt
beyond a reasonable doubt, not the circumstances of his confession.”
Id. at 1090 (citations omitted).
At the same time, similar motive does not have to mean identical
motive. Courts have identified several factors to be considered in
determining whether a prior party, in a prior proceeding, had a
sufficiently similar motive to develop the testimony of a witness. Most
plainly, the questioner must be on the same side of the same issue at
both proceedings, and must have a substantially similar interest in
asserting and prevailing on the issue. United States v. DiNapoli, 8
F.3d 909, 912 (2d Cir. 1993). “Circumstances or factors which
influence motive to develop testimony include (1) the type of
proceeding in which the testimony was given, (2) trial strategy, (3) the
potential penalties or financial stakes, and (4) the number of issues
and parties.” United States v. Reed, 227 F.3d 763, 768 (7th Cir.
2000).

596

Similarity between the factual issues in dispute in the first and second
proceedings also influence a party's motive to develop the witness's
testimony. Compare McKnight v. Johnson Controls, Inc., 36 F.3d 1396
(8th Cir. 1994) (defendant manufacturer had same interest in
developing testimony of witness in previous personal injury case
involving same type of accident), with Cordance Corp. v.
Amazon.com, Inc., 639 F. Supp. 2d 406 (D. Del. 2009) with Schmidt
v. Duo-Fast Corp., 1976 U.S. Dist. LEXIS 6106 (E.D. Pa. 1996)
(defendant manufacturer did not have same interest in developing
testimony of witness in previous personal injury case involving
different kind of accident with the same equipment).
Although usually thought of as cross-examination, the requirement
of an opportunity to develop testimony has a broader meaning:
Wilma, called as a witness by Paula at the first trial, surprised Paula by testifying on
direct examination that Paula had been speeding and that Paula drove across the center
line and hit Drew's car. At the second trial, Drew offers this former testimony, and Paula
objects on the ground that she did not have an opportunity to cross-examine Wilma.
Under FRE 804(b)(1), it does not matter that Paula did not have an
opportunity to “cross-examine” Wilma. It is sufficient, in the language
of the exception, that Paula had the opportunity and similar motive “to
develop the testimony by direct, cross, or redirect examination”
(emphasis added). FRE 804(b)(1) specifically permits a party to
impeach the credibility of any witness, including a witness called by
the party, under FRE 607. And, as we discussed in Chapter Two,
FRE 611 sets forth general guidelines for the “mode and order” of
presenting evidence and provides sufficient flexibility for Paula to
develop fully and to explore weaknesses in Wilma's testimony. Thus,
unless the trial judge unduly restricted Paula's direct and redirect
examination, she has nothing to complain about.
No Opportunity. In some proceedings where the former testimony
was given, a party had no meaningful opportunity to examine the
witness. In United States v. Deeb, 13 F.3d 1532 (11th Cir. 1994),
defendant was a fugitive from justice, tried in absentia, and was not
represented. Testimony taken against him was not admissible in a
later proceeding under FRE 804(b)(1). If the former testimony is
taken at a proceeding where, due to its nature or due to the conduct
of the judge, a party was present but had no meaningful opportunity
to develop testimony, courts have held that the prior testimony is
inadmissible under FRE 804(b)(1). In re Paducah Towing Co., 692
F.2d 412 (6th Cir. 1982) (Coast Guard employee did not have
necessary skills to test an expert witness's qualifications at the first
hearing, and was not permitted to impeach the witness; held, no
adequate opportunity to examine the witness).
 No Requirement of “Offered on Same Issue.” Apart from
ensuring that the motive to develop the testimony is the same,
however, there is no reason to insist that the legal issue be precisely
the same. Assume, for example, that the judgment in our Paula v.
Drew hypothetical was reversed because the jury was instructed to
apply a gross negligence rather than a negligence standard to the
defendant's conduct. Wilma's former testimony should not be
precluded at the second trial because

597

the issue to which the testimony relates is now somewhat different.

The testimony is undoubtedly still relevant, and it is difficult to believe
that the motive of the parties to develop the testimony is any different
because of the different legal standard against which the defendant's
culpability will be measured. Before FRE 804(b)(1), some cases had
articulated a requirement that the evidence had to be offered on the
same legal issue. Appropriately, FRE 804(b)(1) makes no reference
to an “offered on same legal issue” requirement.
Opportunity to Develop by Same Party or a Predecessor in
Interest. Former testimony of a witness who has become unavailable
can be offered against a criminal defendant in the current case so
long as that defendant is the one who had the earlier opportunity and
similar motive to “develop” that former testimony. It does not matter
whether the former proceeding in which the testimony was given was
criminal or civil.
In contrast, where the former testimony of a now-unavailable
witness is offered in a current civil case, the party against whom the
former testimony is being offered need not be the same one who had
the earlier opportunity and motive to develop the former testimony. It
is permissible if a third-party “predecessor in interest” developed the
former testimony. Again, that former testimony may have been given
in either a civil or a criminal proceeding. Concern with a criminal
defendant's personal opportunity to confront and cross-examine
witnesses underlies FRE 804(b)(1)'s differing treatment of criminal
and civil cases.
 b. Justification for the Admissibility of Former Testimony
A principal justification for admitting former testimony under FRE
804(b)(1) is necessity. Since Wilma is dead, the choice is not
between live testimony or hearsay, but rather hearsay or nothing.
This all-or-nothing choice, of course, always exists when the hearsay
declarant is unavailable (although there may sometimes be other
relevant evidence on the same point, so the need for the hearsay will
in fact vary from case to case). Although perhaps the law should be
otherwise, the all-or-nothing choice is not itself enough to justify the
admission of hearsay evidence. There must also be circumstantial
guarantees of trustworthiness or some other reasons to justify the
loss of the opportunity for live cross-examination.
The prior opportunity and motive to develop testimony are important
justifications for the lack of present cross-examination. If Drew's
cross-examination of Wilma had cast any doubt on the truth of what
Wilma said, Drew could introduce relevant parts of the cross-
examination at the retrial. In fact, given the oath, courtroom
formalities and the prior opportunity to develop testimony, prior
testimony seems far closer to live testimony than any of the Rule 803
exceptions.
Yet the reason for imposing an unavailability limitation on use of
former testimony is readily apparent. Without such a limitation, parties
could make wholesale substitutions of former trial transcripts for live
testimony in cases retried after a hung jury, mistrial, or reversal on
appeal. Indeed, depositions or preliminary hearing transcripts could
be substituted wholesale for live witness testimony in the initial trial.
Plainly, the drafters of the rule wished to avoid such eventualities.

598

Note. The former testimony exception helps explain the

awkwardness of the definition of hearsay. It is common, and nicely
succinct, to refer to hearsay as “out-of-court statements,” but that
description is not entirely accurate. As FRE 804(b)(1) makes clear
(together with FRE 801(d)(1)(A), which contemplates use of former
testimony that is inconsistent with the witness's trial testimony)
hearsay includes former testimony given in court at prior proceedings.
Hence, for accuracy and completeness, FRE 801(c)(1) defines a
hearsay statement as one that “the declarant does not make while
testifying at the current trial or hearing.”

4. FRE 804(b)(1): Practical Problems and Applications

In this section, we look further at FRE 804(b)(1) problems that arise
when testimony is offered by or against parties who were not party to
the original action in which the testimony was given. We will also look
at practical aspects of using former testimony.
a. Former Testimony Offered By or Against a Nonparty to the Original Action

Offered by a Nonparty. Under FRE 804(b)(1), there is no

requirement that the party offering the former testimony must have
been a party to the original proceeding in which the testimony was
given. Indeed, FRE 804(b)(1) doesn't look at the status of the offering
party at all: Rather, the rule focuses on the party against whom the
testimony is now offered. The rule requires only that the party against
whom the evidence is offered had an opportunity to develop the
testimony. Returning to the preceding hypothetical: What if another
party, not the original plaintiff Paula, offers Wilma's testimony against
Drew at another proceeding?
Rhoda, another passenger in Paula's car, has sued Drew for her own personal injuries.
By the time Rhoda's case goes to trial, Wilma has died, and Rhoda offers Wilma's
testimony from the first Paula v. Drew trial about Drew's being drunk and driving on the
wrong side of the road.
Here, since Drew had an opportunity to develop the testimony, it does
not matter that the person now offering the testimony is a second
plaintiff, Rhoda, rather than the original plaintiff, Paula, as long as the
“similar motive” requirement is also satisfied.
Offered Against a Nonparty (“Predecessor in Interest”).
Suppose Paula offers Wilma's testimony against a new party—
someone who was an outsider to the original Paula v. Drew trial. FRE
804(b)(1)(B) specifically provides that testimony from the original
proceeding can be offered against someone who was not a party to
that original proceeding, if the current proceeding is a civil case and
the nonparty is a “predecessor in interest” to someone who had the
motive and opportunity to develop the testimony in the original case.
Paula now sues Barney to recover damages for her injuries in the accident with Drew.
Barney is the owner of the tavern where Drew had been drinking before the accident.

599
Wilma has died, and Paula offers Wilma's testimony from the first Paula v. Drew trial
about Drew's being drunk and driving on the wrong side of the road.
Here, we have a civil case. Before admitting the testimony against
Barney, we have to answer two questions affirmatively. First, did
Drew have a motive and opportunity to develop Wilma's testimony?
And second, is Drew a predecessor in interest to Barney? These
questions may overlap to some degree.
“Predecessor in Interest” Analysis. Cases decided soon after the
enactment of FRE 804(b)(1) interpreted the statutory language and
legislative history in, broadly speaking, three different ways. Some
interpreted the term “predecessor in interest” narrowly, to include only
relationships in which individuals stand in privity to each other in
some traditional property or contract law sense. Under this view,
Drew would not be a predecessor in interest to Barney. Other courts
expanded the notion of privity somewhat more broadly to include, for
example, subsidiary and parent corporations, or coemployees such
as a district attorney and a city solicitor. More recently, courts have
adopted the more liberal approach of equating interest with motive,
just as the rule was originally drafted: Any party to an earlier
proceeding who had a similar motive to develop the testimony fully is
a predecessor in interest. The narrow and broad “privity” approaches
require facts about the relationship between Drew and Barney that
may not be directly relevant to the litigation. The third, or “liberal”
approach, essentially merges the “predecessor in interest” question
into the “similar motive” question.
Under this third interpretation, since the same factual issues are in
dispute in both the first and the second proceeding, and Drew and
Barney are on the same side of those issues with the same interest in
discrediting Wilma's opinion, Drew had a similar motive to develop
Wilma's testimony as Barney would have had. Both Drew and Barney
could fend off liability by showing that Drew was not drunk; hence,
their motive to discredit Wilma's opinion is similar if not identical. To
be sure, Barney might have other defenses even if Drew was drunk,
so their legal position is not identical. But their orientation toward
Wilma's testimony is probably similar enough that Drew would be
considered a predecessor in interest to Barney.
Offering Wilma's testimony against Barney, even in a civil case, is
somewhat troublesome. Here, Barney did not have an opportunity to
develop Wilma's testimony when it was given, because he was not a
party to that proceeding. By forcing Barney to rely on the prior cross-
examination of Wilma from the first trial, Drew's selection of counsel
is in effect imposed on Barney. If Drew was represented by a
mediocre attorney who did not do a good job of cross-examining
Wilma, Barney would be stuck with that result even though his
attorney might have done a much better job of discrediting Wilma. But
given the fact that the alternative is to forgo highly relevant evidence,
whatever Drew's lawyer accomplished with the cross-examination of
Wilma is arguably sufficient to permit admission of the evidence
against Barney. Moreover, absent an objectively cognizable failure of
competence (akin to an ineffective assistance of counsel claim in a
post-conviction criminal proceeding), it would be unduly complicated
to require judges to make detailed assessments of the relative skills
of attorneys as a predicate to admitting former testimony.

600
b. Lack of Similar Motive Due to Differences in Procedural Context
In some procedural contexts, parties do not have the same motive
to develop a witness's testimony that they will have later at a full trial
on the merits. United States v. Powell, 894 F.2d 895 (7th Cir. 1990)
(no error to exclude criminal defendant's offer of former testimony
given by the witness at his guilty plea hearing; the government's
motive to test the voluntariness of the plea, and its factual basis, is
not the same as at a trial).
 In United States v. Salerno, 505 U.S. 317 (1992), the Supreme
Court considered the question whether grand jury testimony could be
offered by a criminal defendant, against the government, when grand
jury witnesses were unavailable due to an assertion of privilege. The
witnesses DeMatteis and Bruno had been presented to the grand jury
by a member of the prosecution team. Their grand jury testimony,
however, tended to exculpate the defendant. The prosecutor,
presumably, then had a motive to develop their testimony—that is, to
impeach or challenge it. At trial, the defendant sought to use the
former testimony of DeMatteis and Bruno in his own defense. The
government admitted that it was the “same party,” but contended that
it had not had, and would indeed never have, a “similar motive” to
develop testimony at a grand jury proceeding as it would at trial: “A
prosecutor . . . must maintain secrecy during the investigatory stages
of the criminal process and therefore may not desire to confront
grand jury witnesses with contradictory evidence . . . [A] prosecutor
may not know, prior to indictment, which issues will have importance
at trial. . . .” Id. at 325. The Supreme Court held that this argument
had to be addressed and remanded the case to the Second Circuit.
On remand, the court held en banc that the grand jury testimony
should not have been admitted under FRE 804(b)(1):
The proper approach . . . [to similarity of motive] must consider whether the party
resisting the offered testimony at a pending proceeding has at a prior proceeding an
interest of substantially similar intensity to prove (or disprove) the same side of a
substantially similar issue. The nature of the two proceedings—both what is at stake and
the applicable burden of proof—and, to a lesser extent, the cross-examination at the
prior proceeding—both what was undertaken and what was foregone—will be relevant
though not conclusive on the ultimate issue of similarity of motive. [United States v.
DiNapoli, 8 F.3d 909 (2d Cir. 1993).]
The Second Circuit believed that the government had no motive to
press these particular witnesses at the grand jury hearing because
the defendants had already been indicted. Because the grand jury
was already persuaded that a conspiracy existed, the government
had little incentive to attack DeMatteis's and Bruno's exculpating
testimony. The prosecutor did attack them somewhat, by accusing
them of lying and confronting them with contradictory evidence. The
court held that this was not full-blown cross-examination, and that the
questions were carefully limited to matters already publicly disclosed.
Thus, no secret information was used, as it might be at trial.
In light of the holdings in Salerno and DiNapoli, perhaps the
admissibility of preliminary hearing testimony given by a government
witness against a criminal defendant should be rethought.
Traditionally, preliminary hearing testimony can be

601

admitted under FRE 804(b)(1) against the defendant later at trial,

despite the fact that the defendant had little actual motive to develop
the testimony fully at the preliminary hearing. However,
(1) the preliminary hearing is at such an early stage of the proceedings that the
defendant may not have sufficient information to cross-examine the witness adequately;
(2) like the prosecutor at the grand jury, the defendant at the preliminary hearing has no
wish to “tip his hand” by aggressive cross-examination, and would much prefer to attack
the witness at trial; and (3) because of the minimal standard of proof, it is often a
foregone conclusion that the defendant will lose at the preliminary hearing, so that any
attempted cross-examination or impeachment of inculpatory witnesses will be so much
wasted effort at that point . . . [Stephen A. Saltzburg, Michael M. Martin & Daniel J.
Capra, Federal Rules of Evidence Manual 1838 (7th ed. 1998).]
These concerns about the adequacy of opportunity to cross-examine
will also affect the defendant's right to confrontation under Crawford if
preliminary hearing testimony is offered at trial. See Section G, infra.
c. Using Former Testimony at the Current Proceeding
When former testimony is admissible, any witness with present
knowledge of the content of the former testimony can relate what was
said. In theory, this could be someone who heard the testimony in
person at the former proceeding. However, by far the most common
method of getting former testimony before the factfinder is to use a
transcript of the testimony.
Technically speaking, use of a transcript for this purpose actually
involves multiple hearsay. First, there is the statement of the now
unavailable witness; second, there is the activity of the court reporter
in making a verbatim shorthand record of what the witness says; and
third, there is the activity of the court reporter in making a transcript of
the testimony. FRE 804(b)(1) addresses only the first level of
hearsay: the witness's statement. The court reporter's hearsay could
probably be admitted as a present sense impression under FRE
803(1). The court reporter, both in taking down the testimony and
transcribing her shorthand into a transcript, is describing an event or
condition (first, the live testimony, and later, the shorthand notes)
while perceiving it; her training and official oath to transcribe
accurately, without editorial judgment, suggests a lack of opportunity
to fabricate. Alternatively, the court reporter's regular record-making
as part of her occupation, and the semi-official nature of her position
(as a court official, or as a certified freelance reporter authorized to
administer oaths) probably qualifies the transcripts for the business or
official records exceptions of FRE 803(6) and (8). Whatever the
rationale, courts and parties invariably overlook the court reporter's
hearsay declarant role in admitting former testimony, in the absence
of some genuine reason to doubt the authenticity of the transcript.
Courts generally allow counsel to use varying methods to introduce
former testimony. If the former testimony was videotaped, the relevant
portion of the video can simply be played for the jury. If the testimony
is recorded only on a written transcript, the relevant portions are read
to the jury. The reading can be done by the attorney for a short
snippet of testimony. For longer passages, courts frequently permit a

602

cocounsel, legal assistant, or even perhaps an actor to take the

witness stand and role-play the witness in a responsive reading of the
transcript between the lawyer and sit-in witness. (The jury would be
informed, of course, that the person in the witness chair is merely
reading former testimony.) The record of the former testimony is
normally not admitted in evidence as an exhibit and therefore not
taken into the jury room during its deliberations. (Nor for that matter
does the jury have access to transcripts of the testimony it heard
live.) Although the hard copy transcript is not admitted in evidence,
the court is likely to require presentation of some foundation
identifying the witness, the attorneys, and the date of testimony.
 Regardless of what method is used to introduce former testimony,
there is a possibility that particular questions and answers within the
former testimony may be objectionable for some reason. For
example, the former testimony may have been elicited in response to
a leading question; it may have contained an impermissible lay
opinion; it may have been privileged; or it may recite inadmissible
hearsay statements, within the broader hearsay of the testimony
itself. In these types of situations, the question arises whether
objections can be made to exclude former testimony that meets all
the requirements of the former testimony exception. The Federal
Rules do not address this issue. While reported decisions vary, the
majority view is that objections to the form of the lawyer's question in
former testimony are waived if they were not made at the original
hearing. Objections going to the inadmissibility of the witness's
answer are not waived, even if they weren't made at the original
hearing. They can be made for the first time at the current hearing,
when the former testimony is offered. See the Trial Objection Cheat
Sheet, Chapter 2, pages 120-22, for examples of the two types of
objections.

KEY POINTS
1. Assuming unavailability, testimony given at a prior hearing (or
deposition) may be admitted against a civil party or a criminal
party if that party was present at the prior hearing, had a
meaningful opportunity to examine the witness, and had a
similar motive to examine the witness as at the current trial.
2. A judge may find that the party did not have a sufficiently
similar motive at the prior hearing if different facts are at issue
in the two proceedings, or if the procedural context in the prior
hearing eliminated the party's incentive to fully examine the
witness.
3. Testimony given at a prior hearing (or deposition) may also be
admitted against a civil party if a predecessor in interest to that
party—someone with the same motive because disputing the
 same factual issues—had the opportunity to examine the
witness at the prior hearing.

PROBLEM
8.67. Alex and Brenda Dawson are suing the Delta Insurance
Company for the loss they sustained when a warehouse they
jointly owned was destroyed in a fire.

603

Delta has refused payment because a clause in the policy precludes

recovery in the event that either owner is responsible for
damage to the property. The insurance company claims that
Alex arranged to have Eddy Hall burn the building. Eddy
pleaded guilty to arson and testified against Alex at Alex's
arson trial, which resulted in a hung jury. Eddy falls ill in prison
and is not available to testify in the current action. Delta offers
a properly authenticated transcript of Eddy's testimony at
Alex's arson trial. Alex objects on the ground that he now has
new evidence with which to impeach Eddy; Brenda objects on
the ground that she did not have any opportunity to cross-
examine Eddy. How should the court rule?

5. Explanation of FRE 804(b)(2): Dying Declarations

FRE 804(b)(2) provides:

(b) The Exceptions. The following are not excluded by the rule against hearsay if the
declarant is unavailable as a witness:. . .
(2) Statement Under the Belief of Imminent Death. In a prosecution for homicide or
in a civil case, a statement that the declarant, while believing the declarant's death to
be imminent, made about its cause or circumstances.

a. Preliminary Factfinding
The factual requirements for dying declarations are:
 the statement concerns the cause or circumstances of what the
declarant believes is impending death;
the statement is made while the declarant believes death to be
imminent; and
the statement is offered in a homicide prosecution or a civil case.

Statements concerning the cause or circumstances of the declarant's

death include identifications of the perpetrator and descriptions of
accidents and of past events that led up to the mortal injury or
disease. Even though the belief in imminent death may generally
enhance a declarant's sincerity, contents other than the cause or
circumstances of death are not included within the exception. Does
the hearsay statement have to concern the cause of only the
declarant's death, or could it extend to the cause of death of another?
The language of FRE 804(b)(2) appears to be ambiguous on this
point, but presumably it means the declarant's own death.
A belief in imminent death means the lack of hope of recovery—“a
settled hopeless expectation that death is near at hand and what is
said must have been spoken in the hush of its impending presence.”
Shepard v. United States, 290 U.S. 96, 100 (1933). This state of mind
can be shown by the declarant's own statement, by circumstances
such as the nature of the declarant's wound, by evidence that the
declarant was told that death was imminent, or by the opinion of a
physician. Vazquez v. National Car Rental System, Inc., 24 F. Supp.
2d 197 (D.P.R. 1998). Thus, the jury is not instructed that it must find
the declarant's belief in imminent death before it may consider the

604

statement, but evidence that tends to show that the declarant did
not have this belief may be used by the opponent to argue to the jury
that the statement is not reliable.
Note that the relevant inquiry is the declarant's subjective belief of
imminent death: It need not be shown that the declarant in fact died.
This is implicit in FRE 804(a)(5)(B), which contemplates situations in
which a “dying declarant” is unavailable because “absent from the
trial or hearing.” That form of unavailability is distinguished from
absence due to death or physical incapacity in FRE 804(a)(4).
Homicide defendants have invoked the dying declaration exception
in homicide cases to show that some third person committed the
murder. As a practical matter, however, it will usually be prosecutors
who want to take advantage of the dying declaration exception.
b. Justification for the Admissibility of Dying Declarations
The dying declaration exception is one of the oldest common law
exceptions to the rule excluding hearsay. It is also one of the most
problematic in terms of the soundness of its underlying rationale. As
usual, the unavailability of the declarant means that there may not be
another means of obtaining the same or similar evidence. Reliability
is said to inhere in the notion that people who realize that death is
imminent will be especially likely to be sincere, since their condition
obviates any motive to misstate the truth. Or, declarants may believe
it is in their interest to “meet their maker” with clean hands, or least
with hands that have not recently been soiled by falsehood. Finally, it
might be argued that the exception acts as a deterrent to someone
who might try to kill a potential adverse witness.
However, both the necessity justifications for this exception are
questionable. It is not clear that the need for a dying declarant's
statement about the cause or circumstances of death is any greater
than the need for the statements of any unavailable witness. There
may be an absence of available eyewitnesses to all sorts of events;
and there may be alternative forms of evidence available to prove the
cause of death in a homicide or civil case. And the forfeiture by
wrongdoing exception is more closely tailored to the problem of killing
a potential witness.
The notion that dying declarations are likely to be reliable is also
suspect. The proposition that individuals who believe death is
imminent are particularly likely to be sincere is sheer speculation.
There is no requirement that dying declarants be shown to be
religious, and no requirement of other circumstances that reduce a
motive to misrepresent the cause of death. Furthermore, even if one
assumes that dying declarants are likely to be sincere, the
circumstances surrounding a dying declaration may exacerbate other
hearsay dangers. If the declarant is the victim of a sudden attack,
there is reason to question the accuracy of the victim's perceptions.
Additionally, an individual who is suffering enough to believe that
death is imminent may have somewhat reduced capacities for
narration and memory.
There are additional indications of doubt about the justifications for
the admission of dying declarations. In some jurisdictions the party
against whom a dying declaration is admitted is entitled to a jury
instruction that these statements are to be considered with caution.
And the limitation to homicide cases was generated by the

605

concern of the House Judiciary Committee: “The Committee did not

consider dying declarations as among the most reliable forms of
hearsay. Consequently, it amended the provision to limit their
admissibility in criminal cases to homicide prosecutions, where
exceptional need for the evidence is present.” What this means, of
course, is that we are willing to use evidence whose reliability we
question in order to obtain criminal convictions that carry the most
severe sanctions.

KEY POINT
Assuming unavailability, statements made by a declarant who believes that death is
imminent are admissible in civil cases and in homicide cases so long as the contents of
the statement concern the cause or circumstances of the declarant's impending death.

PROBLEM
8.68. Fueled by alcohol, rivalry, and the desire for the victim's new
car, five men hatched a plot to carjack an acquaintance of
theirs and murder him. Three of them carried out the plan. In
his dying moments, the victim identified by name the three who
 attacked him. Unfortunately, he was wrong about two of them,
which the government's own proof substantiates. The
government nevertheless seeks to use the dying statement
against the third attacker who, it claims, was accurately
named. May this defendant prevent the admission of the dying
declaration? On what grounds? May a fourth defendant, who
the government claims did participate in the attack but who
was not named by the victim, use the dying declaration at trial
to show that he was not an attacker?

6. Explanation of FRE 804(b)(3): Declarations Against Interest

FRE 804(b)(3) states:

(b) The Exceptions. The following are not excluded by the rule against hearsay if the
declarant is unavailable as a witness: . . .
(3) Statement Against Interest. A statement that:
(A) a reasonable person in the declarant's position would have made only if the
person believed it to be true because, when made, it was so contrary to the
declarant's proprietary or pecuniary interest or had so great a tendency to invalidate
the declarant's claim against someone else or to expose the declarant to civil or
criminal liability; and
(B) is supported by corroborating circumstances that clearly indicate its
trustworthiness, if it is offered in a criminal case as one that tends to expose the
declarant to criminal liability.

606
a. Preliminary Factfinding
The factual requirements for declarations against interest are:

the content of the statement, at the time the statement was

made, was
against the pecuniary or proprietary interest of the declarant;
could subject the declarant to civil or criminal liability; or
could render invalid a claim held by the declarant;
the statement was against any of the above interests of the
declarant to an extent great enough such that a reasonable
person, in declarant's position, would not have made such a
statement unless it was true; and
 if the statement exposes the declarant to criminal liability and is
offered in a criminal case, evidence of corroborating
circumstances that clearly indicate the trustworthiness of the
statement must be offered.

Content Against Interest. The focus of the against-interest

requirement is usually on the content of the statement. This content
must be contrary to one of the specific interests of the declarant
identified in the rule when the statement is made. At trial, the
statement is offered to prove the truth of those facts. Assume, for
example, that Mark tells a friend that he owes a lot of money to Ryan.
The fact of owing money is against Mark's pecuniary interest. We
assume that people in general have an interest in maintaining
ownership of their money as well as their possessions, so Mark's
statement that he owes money should qualify as contrary to his
proprietary interest as well. Suppose Mark told his friend that he had
robbed a convenience store in order to pay the debt. This statement
could subject Mark to criminal liability and thus would be against
Mark's penal interest.
To be against a declarant's pecuniary, penal, or civil claim interests,
a statement under FRE 804(b)(3) need not have been said in the face
of immediate adverse consequences. For instance, the rule does not
require that Mark's admission of robbing the store have been made to
a police officer. Indeed, even if Mark reasonably believed that his
friend would keep his statements confidential, that would not alter
their against-interest quality. Courts typically focus and rely on the
against-interest content of the facts disclosed. Thus, a better test is
whether the statements would harm Mark's interest if disclosed
publicly or to the relevant authorities.
Nevertheless, sometimes a statement that on its face appears to be
against interest is not in fact against the declarant's interest because
surrounding circumstances change the surface meaning of the
contents of the statement into something neutral or self-serving. A
statement by Mark that he owes Ryan $500 may not be against
Mark's interest if Mark knows that Ryan claims that the debt is really
$2,000. If the facts in the statement can no longer cause trouble for
the declarant (e.g., he has been convicted of the crime whereof he
speaks) then the against-interest element may not be satisfied. And
in many situations, particularly those that involve bargaining between
crime suspects and law enforcement officials, against-interest
admissions can be made with powerful self-serving objectives. We
discuss this problem further below.

607

Ascertaining the Declarant's Knowledge. The declarant's

knowledge comes up in two different senses under FRE 804(b)(3).
Like other FRE 803 and 804 exceptions, FRE 804(b)(3) requires a
showing that the declarant (Mark) had personal knowledge of the
against-interest fact when the statement was made. In addition, FRE
804(b)(3) applies only if Mark knows (or reasonably should know) that
the fact is against his interest. If particular facts affect the declarant's
assessment of what is against interest, then these facts will be taken
into account. FRE 804(b)(3) calls for evaluation of the probable
understanding of an individual by asking what a reasonable person in
that individual's position would be thinking; and we typically apply
“objective,” reasonable person standards in light of the circumstances
and facts known to the particular individual whose conduct or
statement is at issue. In most cases, it will be relatively easy to
determine that the declarant knows the statement is “against
interest.”
Distinct from Party Admission. It is important not to confuse FRE
801(d)(2)(A) admissions of a party with declarations against interest.
You can see that FRE 804(b)(3) requires many more factual
requirements. It also applies to statements made by anyone: The
FRE 804(b)(3) declarant need not be a party, and typically is not.
(The most common use against a party for this is the offer of one
codefendant's against-interest statement against another
codefendant, where the codefendant/declarant is unavailable due to
the assertion of a privilege.) Parties are likely available as witnesses,
whereas the FRE 804(b)(3) declarant must be unavailable. Moreover,
where the declarant is a party, it is much easier to admit the
statement as a statement of party opponent under FRE 801(d)(2)(A).
b. Justification for the Admissibility of Declarations Against Interest
The content of Mark's statement that he owes money reflects
damage to his pecuniary interest. This against-interest factor is
thought to give the statement a sufficient circumstantial guarantee of
trustworthiness to warrant admissibility, at least if the alternative is
forgoing the evidence altogether, which it is since the exception
requires unavailability. The underlying theory of human behavior is
that most people generally tell the truth in the absence of a motive to
lie, and motivations to lie are nearly always self-serving: statements
against interest, which are the opposite of self-serving by definition,
are thus seen as reflecting an absence of a motive to lie. Such a
statement is therefore likely to be reliable, even though oath and
cross-examination are lacking. The other types of interests that are
included within the exception—not being subjected to civil and
criminal liability, possessing valid claims against others—are also
assumed to be important enough that people should have no reason
to lie if they say something that reflects badly on such interests.
Some courts speak of a requirement to show that the declarant did
not have a motive to lie, but this is not an independent requirement
for the exception.

608

7. FRE 804(b)(3): Practical Applications and Problems

a. Doubts About the Underlying Rationale for the Exception
The most serious problem with the declaration against interest
exception is its empirical assumptions. The first premise underlying
the exception makes good common sense: People seldom
intentionally state facts that truly reflect against their interest. But the
next, converse, premise is more dubious: that against-interest
statements, when made, are therefore likely to be trustworthy. The
second premise is in tension with the first. It seems much more likely
that a statement that appears to be against interest is in fact not
against interest, but reflects an ulterior motive that may be difficult to
discern.
Most statements that are characterized as declarations against
interest are likely to fall into one of two categories:
Mixed Motive Statements. “Mixed motive” statements appear to be
against interest but have a high risk of being unreliable due to a likely
ulterior self-interested motive for making the statement. For example,
a declarant might say he owes money in order to justify asking the
listener for a loan; the declarant may “admit” robbing a convenience
store or dealing drugs to impress the listener. An against-interest
statement may be made to gain credibility in order to convince the
listener to believe an accompanying falsehood. Numerous criminal
cases involve statements to law enforcement officials made by
declarants who both admit culpability while also blaming others in
order to curry favor with the authorities, or to secure immunity from
prosecution. See, e.g., United States v. Bobo, 994 F.2d 524 (8th Cir.
1993) (in a prosecution for possession of a firearm, no error to
exclude the defendant's brother's statement that a gun was his, and
not the defendant's; court distrusted the brother's motive and the
timing of the statement just before trial); Donovan v. Crisostomo, 689
F.2d 869 (9th Cir. 1982) (statements of foreign employees that they
did not work overtime were not declarations against their pecuniary
interest, because they may have been motivated to make the
statements to avoid being sent back to their country of origin).
Sometimes, however, there may not be much available information
bearing on the real motivation of the declarant, and the court may fail
to see that the declarant also had a self-serving reason to make the
statement. If courts do not discern such mixed motives, untrustworthy
statements may be admitted.
Statements Made with No Motive to Lie. The second type of
statements admitted under FRE 804(b)(3) are reliable statements
whose reliability has more to do with lack of motivation to lie and less
to do with their against-interest characterization. Mark's statement
that he owes money may be, to him, merely a neutral recitation of a
fact. The fact that the statement may be characterized as being
against interest may have nothing to do with its sincerity. In this
respect the statement is no different from many other hearsay
statements that do not fall within the declaration against interest (or
any other hearsay) exception.

609
b. Statements That Inculpate Accomplices
Mixed motive statements raise special, recurring problems in
criminal cases. Consider a case in which prosecutors have charged
two defendants, Worrell and Holmes, with robbing a bank. Holmes
makes a written confession to the crime at the police station and in
the confession names Worrell as his accomplice. At Worrell's
separate trial, Holmes successfully asserts his Fifth Amendment right
not to testify and is therefore unavailable. The prosecutors offer
Holmes's written confession against Worrell, arguing that it is a
statement against the penal interest of the declarant, Holmes under
FRE 804(b)(3).
A key question presented in cases of potential statements against
penal interest that inculpate the defendant in addition to the hearsay
declarant will be whether the statement constitutes “testimonial”
hearsay under Crawford v. Washington. If it does, then the statement
is barred by the confrontation clause, unless the defendant had a
prior opportunity to cross-examine the now-unavailable declarant.
Inadmissibility under the confrontation clause cuts off any inquiry into
whether the statement qualifies for admission under FRE 804(b)(3).
Any statement given under police questioning at the station house,
whether a written confession as in the Worrell-Holmes hypothetical or
tape recorded interview, as in Crawford itself, plainly falls within the
core application of the Crawford definition.
Since Crawford, federal courts have continued to struggle with the
contours of the “testimonial” definition, as will be discussed in Section
G, infra. Suppose Holmes's statement implicating Worrell was made
in circumstances that makes the statement “nontestimonial”? For
example, suppose Holmes is arrested while trying to flee the scene of
the bank robbery. The officers ask whether he has any accomplices
and if they are armed. Holmes replies, “Yeah, Worrell robbed the
bank with me. He's probably made it back to his place by now,” and
gives the officers Worrell's address. Such a statement is arguably
nontestimonial under current doctrine, since the officers' inquiry was
intended to address an ongoing emergency (a suspected and
possibly armed bank robber still at large) rather than to establish
investigative facts for a subsequent prosecution.
If the hearsay offered under FRE 804(b)(3) is held to be not
testimonial, then it is necessary to analyze whether a mixed motive
statement like Holmes's is truly against the declarant's interest. Pre-
Crawford authorities analyzing this question in the context of
statements made to law enforcement have held that FRE 804(b)(3)
should not allow admission of statements that inculpate purported
accomplices unless they also specifically self-inculpate the declarant
as well. A broad narrative that is only generally self-inculpatory might
not be found to be sufficiently against interest, while statements that
intertwine self-inculpation could be genuinely against the interest of
the declarant; for example, “I hid the gun in Joe's apartment” could
show both self-incrimination and Joe's involvement. See Williamson
v. United States, 512 U.S. 594 (1994); United States v. Smalls, 605
F.3d 765, 780-787 (10th Cir. 2010) (remanding case to district court to
determine which parts of co-conspirator's extended, nontestimonial
confession to confidential informant were sufficiently against penal
interest); United States v. Westmoreland, 240 F.3d 618, 626 (7th Cir.
2001). The question is difficult and troubling, and context matters. In
the above example, perhaps Holmes

610

falsely named Worrell to cover the identity of the true accomplice; or

perhaps he was trying start a process of cooperating with the police
in order to mitigate his own punishment. If Holmes believed that he
was caught red-handed in the course of a bank robbery, he may have
felt that he was not giving anything away by conceding his own
involvement.
 c. Requirement of Corroboration for Inculpatory Statements in Criminal Cases
FRE 804(b)(3)(B) imposes special corroboration requirements on
declarations against penal interest that are offered in criminal cases.
In such cases, an out-of-court declarant has typically made a
statement assuming criminal responsibility for the crime with which
the defendant is charged. The requirement is framed in terms of
“corroborating circumstances” that “clearly indicate the
trustworthiness of the statement.” Courts look to circumstances that
corroborate either the content of the statement (other evidence that
the facts that exculpate the defendant are true) or the trustworthiness
of the declarant (voluntariness, lack of motive to curry favor, lack of
subsequent inconsistent statements). Recantation of exculpatory
statements, and assertions of the Fifth Amendment privilege have
been held to weigh against trustworthiness. United States v. Davis,
2001 WL 524374 (D.C. Cir. 2001).
Background to Current Rule. The history of this requirement is
worth noting. FRE 804(b)(3) was amended to its present form in
2010. Prior to that, FRE 804(b)(3) was written to require corroboration
only of exculpatory statements against interest offered by an
accused. Classic examples would include purported admissions of
guilt by declarants other than the defendant who had since died,
disappeared, or asserted the privilege against self-incrimination. The
drafters of the original version of the rule were undoubtedly
concerned about the fabrication of exculpatory evidence in criminal
cases. Since the rule applies only where the declarant is unavailable,
the drafters were undoubtedly concerned about the ease with which a
made-up confession could be attributed to a declarant known to be
unavailable—perhaps one who has absconded or died. Courts have
long been exceedingly focused on this possibility. See Advisory
Committee Note to FRE 804(b)(3) (“[O]ne senses in the decisions a
distrust of evidence of confessions by third persons offered to
exculpate the accused arising from suspicions of fabrication either of
the fact of the making of the confession or in its contents, enhanced
in either instance by the required unavailability of the declarant.”); see
also State v. Higginbotham, 212 N.W.2d 881, 883 (Minn. 1973)
(“[H]earsay statements tending to exculpate the accused must be
regarded with suspicion.”).
There were two objections to this corroboration requirement. First,
the problem it purports to address is not a hearsay problem. The FRE
804(b)(3) statement must still be presented by a live witness in court.
The witness whom the drafters fear will fabricate the against-interest
statement of an unavailable declarant will thus himself be on the
witness stand and subject to cross-examination. Second, critics
argued that if against-penal interest statements are less reliable and
require corroboration, there is no reason to limit the FRE 804(b)(3)
corroboration requirement solely to statements offered to exculpate
the defendant. Prosecution witnesses are at least as likely as

611

defense witnesses, critics argue, to fabricate FRE 804(b)(3)

statements against penal interest. Note that such statements would
necessarily take the form of mixed motive statements by a declarant
other than the accused, as described in the previous section. This is
so because inculpatory admissions by an accused would be
admissible as an opposing party's own statement under FRE 801(d)
(2)(A). If such a mixed motive statement were found to have been
made in an informal, spontaneous setting to someone unconnected
with law enforcement, there is an argument that the statement is
nontestimonial and thus falls outside Crawford. Again, this is not a
hearsay problem, but rather a problem of a witness lying on the stand
by fabricating someone else's purported statement. Nevertheless,
rather than removing the nonhearsay concern from the exception, the
rule was amended to conform to a “turnabout is fair play” principle. It
now applies to FRE 804(b)(3) against-penal-interest statements
whether offered by the prosecution or the defense.
Notwithstanding these concerns, and the corroboration requirement
for the particular category of statements against interest, doubts
about the credibility of the testifying witness should not be a factor in
assessing the trustworthiness of the declarant's statement. United
States v. Atkins, 558 F.2d 133 (3d Cir. 1977).
 Ongoing Constitutional Difficulties. Prior to its amendment in
2010, the corroboration requirement for exculpatory against-penal-
interest statements was constitutionally questionable. It applied only
to statements offered by the defense, with prosecutors being free to
rely on any statement against penal interest, corroborated and
uncorroborated. This evidentiary freedom was at odds with the Sixth
Amendment confrontation requirement, as interpreted both before
and after Crawford v. Washington, 541 U.S. 36 (2004). See Daniel J.
Capra, Amending the Hearsay Exceptions for Declarations Against
Penal Interest in the Wake of Crawford, 105 Colum. L. Rev. 2409,
2425-2427 (2005). The prosecutorial advantage under FRE 804(b)(3)
was also constitutionally suspect for violating due process. Arguably,
defendants should be able to rely on hearsay statements under the
same, if not better, conditions than prosecutors. See Richard A.
Nagareda, Reconceiving the Right to Present Witnesses, 97 Mich. L.
Rev. 1063, 1146-1148 (1999).
But the 2010 amendment of FRE 804(b)(3) equalizing the
corroboration requirement remains constitutionally suspect insofar as
it prevents defendants from using uncorroborated third-party
admissions of guilt as exculpatory evidence. An argument can be
made that the Compulsory Process Clause should entitle defendants
to present virtually any rational proof tending to make guilt less
probable. This argument received some support from Holmes v.
South Carolina, 547 U.S. 319 (2006), where the Court held that South
Carolina's restrictions on the admissibility of third-party admissions of
guilt as exculpatory evidence were unconstitutional. More recently,
however, in Nevada v. Jackson, 133 S. Ct. 1990 (2013), the Supreme
Court found that no established precedent forbade a state from
excluding exculpatory hearsay evidence suggesting that the alleged
rape victim made unfounded accusations against the defendant on
several prior occasions. For recent analysis of the Court's compulsory
process decisions, see Alex Stein, Inefficient Evidence, 66 Ala. L.
Rev. 423, 460-469 (2015).

612
 KEY POINTS
1. Assuming unavailability, statements that are against the
declarant's pecuniary, proprietary, penal, or civil liability interest
may be admissible. The statement must be so far against that
interest that a reasonable person would not be lying when
making that statement.
2. In order to determine whether the statement is against interest,
the court should examine the situation and motives of the
declarant. Mixed motive statements should be examined
carefully to see whether the predominating motive is self-
serving rather than against interest.
3. Statements of fact that inculpate others, made in the context of
a self-inculpating statement, are admissible only if each
specific statement is against the declarant's interest. Courts
are divided as to whether such statements, made in custody,
can be admitted as against the declarant's interest.
4. Statements against penal interest offered in a criminal case
must be corroborated as to contents, the trustworthiness of the
declarant, or both.

PROBLEMS
8.69. Hanna Mason has sued the Acme Rental Company for
personal injuries that she sustained as a pedestrian when she
was hit by an Acme truck driven by James Lowe, an Acme
employee. Lowe was fired the day after the accident, and six
months later moved to Acapulco. Just before leaving the
country, Lowe told his friend, Andy Becker, that he had been
drinking at the time of the accident and had failed to stop at a
stop sign. Lowe also made the same statement in a deposition
taken during the discovery phase of the current lawsuit. Lowe
has refused to respond to plaintiff's letter requesting that he
return to the United States to testify. At trial, Hanna calls Andy
 Becker to testify about Lowe's statement. Is the evidence
admissible?
8.70. In the film The Shawshank Redemption, Andy DuFresne (Tim
Robbins) is serving a life sentence at Shawshank Penitentiary
for the murder of his wife and her lover. DuFresne always
maintained his innocence. About 20 years into his sentence,
DuFresne befriends a young convict named Tommy Williams,
who has been sent to Shawshank on a burglary conviction.
Eventually, Williams tells DuFresne that a former cellmate in a
local jail, named Elmo Blatch, admitted to committing the
murder of which DuFresne was convicted. According to Blatch,
he killed the two victims (a golf pro and his girlfriend) in the
course of an armed burglary/robbery; he later learned (to his
amusement) that the murder was pinned on the woman's
husband, “a banker”—DuFresne.
Andy DuFresne wants to seek a new trial of his murder
charge based on this newly discovered evidence. He assumes
the evidence could be introduced through the testimony of
Tommy Williams. Can it?
Hint: Assume this is an evidentiary hearing pursuant to a writ
of habeas corpus by DuFresne seeking a new trial based on
the newly discovered evidence of

613

Blatch's statement to Tommy Williams. Assume also that

Williams is alive and available to testify. (Spoiler alert: in the
film, he is murdered by the warden.) The issue for this problem
is whether Williams's testimony will be admissible at all as a
statement against interest. Defense counsel should call
whatever witnesses you deem necessary to establish the
elements of this exception.
8.71. Joshua Thomas has been charged for his alleged role in arson
and vandalism of an SUV dealership, destroying a number of
Hummers and doing other property damage. Thomas denies
any involvement in the act. A group called the Environmental
 Liberation Front (ELF) claimed responsibility for the act shortly
after it occurred. The city newspaper reported that an
anonymous source communicated with reporter Bob Adams,
the author of the news story, in three e-mails and two
telephone interviews, claiming to be responsible for the arson
and vandalism, while indicating that Thomas is innocent.
Consider whether defense counsel for Thomas, preparing his
case for trial, can introduce this information as evidence. What
form would this evidence take? What witnesses would the
defense need to call? What objections would the prosecution
make, and how would the defense respond? What further
investigation would defense counsel have to undertake in order
get this evidence in admissible form?

8. Explanation of FRE 804(b)(4): Statements of Personal or

Family History
FRE 804(b)(4) provides:

(b) The Exceptions. The following are not excluded by the rule against hearsay if the
declarant is unavailable as a witness: . . .
(4) Statement of Personal or Family History. A statement about:
(A) the declarant's own birth, adoption, legitimacy, ancestry, marriage, divorce,
relationship by blood, adoption, or marriage, or similar facts of personal or family
history, even though the declarant had no way of acquiring personal knowledge
about that fact; or
(B) another person concerning any of these facts, as well as death, if the
declarant was related to the person by blood, adoption, or marriage or was so
intimately associated with the person's family that the declarant's information is
likely to be accurate.

a. Preliminary Factfinding
The factual requirements for statements of personal or family
history are:

the content must concern the declarant's own personal or family

history; or
the statement concerns the personal or family history of one to
whom the declarant is related or was intimately associated.
 Personal Knowledge of One's Own Personal and Family
History. FRE 804(b)(4)(A), like the common law pedigree exception,
does not require that the declarant

614

have personal knowledge. Obviously, a declarant has no personal

recollection of birth or place of birth. United States v. Hernandez, 105
F.3d 1330, 1832 (9th Cir. 1997) (statement that declarant was born in
Mexico admissible without personal knowledge). However, any
declarant meeting the requirements of subsection (A) is inevitably
going to have knowledge of circumstantial evidence of personal and
family relationships.
Statements of Relations and Intimate Associates. The common
law also required that a declarant speaking about the pedigree of
another be related by blood or marriage to the person about whom
the declaration is made. FRE 804(b)(4)(B) expands the common law
pedigree exception to close family members and intimate associates
so long as the relationship is such that the declarant would have
accurate information about the family history. Do the reasons for
eliminating the personal knowledge requirement in subsection (A)
also apply to the declarants listed in subsection (B)? Independent
evidence may be required that the declarant was a family member or
so intimately associated with a family as to be knowledgeable.
Concerning Personal History. The exception is limited to past
facts and events of an objective, rather than subjective, nature.
Statements as to motives or purpose for marriage are beyond the
scope of FRE 804(b)(4). United States v. Carvalho, 742 F.2d 146 (4th
Cir. 1984) (statements from former spouses as to the defendants'
previous motives to marry in order to obtain citizenship were admitted
in error).
b. Justification for the Admissibility of Statements of Personal or Family History
A justification for this exception is necessity. The kinds of details
covered by FRE 804(b)(4) are likely to be difficult or impossible to
prove through documentary evidence, and may be known through
“family lore,” statements of now-deceased relatives, and the like. The
exception overlaps to a great degree with FRE 803(19), by extending
beyond “reputation” evidence to include statements of facts that may
be known only to the unavailable declarant. Statements about the
declarant's own pedigree are assumed to be reliable enough to be
admitted if the declarant is unavailable. No special assurances of
reliability are required. The common law hearsay exception required
that the declaration be made prior to the time of the controversy that
is the subject of the litigation. The Advisory Committee Note to FRE
804(b)(4) explains the absence of this requirement on the ground that
the timing of the statement has a “bearing more appropriately on
weight than admissibility.”

KEY POINTS
1. Assuming unavailability, a statement asserting the declarant's
own family history may be admitted without a showing of
personal knowledge.
2. A statement asserting the family history of another person may
be admitted if the declarant had accurate knowledge as a
result of being related to or intimately associated with the other
person's family.

615

PROBLEMS
8.72. John Bowman has filed an action in probate court, claiming to
be the closest kin—a nephew—of the wealthy decedent,
George Bowman. George died intestate and had no children or
surviving spouse. To establish his claim, John offers the
affidavit of one Jacob Bowman, John's father, who John claims
is brother to George. Jacob is now deceased. In this affidavit,
 Jacob states that he and George are brothers and that they
emigrated to the United States together from Germany in 1905.
John offers no other evidence of a family relationship. Another
distant relative who claims the estate offers an authenticated
letter from Emily Bowman, deceased wife of Jacob. The letter
states that her husband, Jacob, was bribed by John to make
the affidavit and that, to her knowledge, George and Jacob
were not brothers. Is Jacob's affidavit admissible? Is Emily's
letter admissible?

9. Explanation of FRE 804(b)(6): Forfeiture by Wrongdoing

FRE 804(b)(6) provides:

(b) The Exceptions. The following are not excluded by the rule against hearsay if the
declarant is unavailable as a witness: . . .
(6) Statement Offered Against a Party That Wrongfully Caused the Declarant's
Unavailability. A statement offered against a party that wrongfully caused—or
acquiesced in wrongfully causing—the declarant's unavailability as a witness, and did
so intending that result.
This exception, added to the Federal Rules in 1997, codified a line of
cases beginning with United States v. Mastrangelo, 693 F.2d 269 (2d
Cir. 1982), in which key prosecution witnesses would “suddenly”
became unavailable due to violence or intimidation allegedly
perpetrated against them by the defendants against whom they were
to testify. Admission of the unavailable witnesses' hearsay statements
was justified on a theory of waiver or forfeiture. Mastrangelo held that
although a criminal defendant's Sixth Amendment right of
confrontation “is an essential trial right, it may be waived by the
defendant's misconduct.” United States v. Dhinsa, 243 F.3d 635, 651
(2d Cir. 2001). This waiver-by-misconduct rule permitted the
admission of the hearsay statements of unavailable witnesses when
the defendant had “wrongfully procured the witnesses' silence
through threats, actual violence or murder,” id., despite the lack of
confrontation. The waiver principle was then extended to include the
hearsay rule—waiver of confrontation rights simultaneously waived
“the right to object on hearsay grounds to the admission of [the] out-
of-court statements.” United States v. Houlihan, 92 F.3d 1271, 1281
(1st Cir. 1996). The Advisory Committee Note to FRE 804(b)(6)
makes it clear that the new hearsay exception was intended to
implement Mastrangelo and its progeny.

616
a. Preliminary Factfinding
The factual requirements for forfeiture-by-wrongdoing statements
are:

the party engaged or acquiesced in wrongdoing;

the wrongdoing was intended to procure the unavailability of the
declarant as a witness against the party;
the wrongdoing did render the declarant unavailable as a
witness; and
the declarant's statement is offered against the party.

The Declarant Was a Witness or a Potential Witness Against a

Party. It is clear from the case law that the purpose of FRE 804(b)(6)
is to secure the admission at trial of hearsay statements made by
unavailable declarants who were serving as witnesses against a
party, for example by giving grand jury testimony or by being
scheduled to appear in an upcoming trial. If there was instead only an
ongoing criminal investigation, declarants are potential witnesses if
they are assisting in this investigation. Both prior to and after FRE
804(b)(6), courts have held that the forfeiture rule applies to
wrongdoing against both actual and potential witnesses. United
States v. Houlihan, 92 F.3d 1271, 1279 (1st Cir. 1996) (“We see no
[difference] between a defendant who assassinates a witness on the
eve of trial and a potential defendant who assassinates a potential
witness before charges have officially been brought.”).
The Party Engaged in Wrongdoing Procured the Unavailability
of the Declarant. The party against whom the declarant's statements
are offered must be shown to have “procured” the unavailability of the
declarant by engaging in or acquiescing in “wrongdoing.” The
proponent of the statements show that the party did so act. In
general, wrongdoing is defined broadly to mean threats, intimidation,
kidnapping, hiding, acts of violence, and, ultimately, murder to secure
the silence of the then-unavailable declarant. Engaging in wrongdoing
means “he or she participated directly in planning or procuring the
declarant's unavailability.” United States v. Cherry, 217 F.3d 811, 820
(10th Cir. 2000) (defendant's obtaining the car used in the declarant's
murder under false pretenses, and her apparent proximity to the
actual murderer around the time of the murder, might be sufficient
circumstantial evidence that she participated in the planning of the
murder).
Evidence used to prove the party's engagement in wrongdoing may
include the declarant's hearsay statements. As we know from the
Supreme Court's opinion in Bourjaily, discussed on page 518-19,
supra, FRE 104(a) permits the court to “bootstrap” a finding of a
foundational fact by relying on the contested hearsay statement itself.
Should courts impose a requirement, similar to the language in FRE
801(d)(2), that the contested hearsay statement may be used but is
not sufficient to prove the party's wrongdoing?
Intent to Procure the Declarant's Unavailability as a Witness. To
admit a statement under this exception, the trial court must find that
the party acted with the specific intention of making the declarant
unavailable as a witness, at least in criminal cases. In Giles v.
California, 554 U.S. 353 (2008), the Supreme Court held

617

that the confrontation clause requires this specific intent element for
the forfeiture by wrongdoing exception to apply in criminal cases. On
that ground, the Court rejected a state law rule that applied the state's
hearsay forfeiture exception to admit statements made by a murder
victim without requiring any finding that the defendant had killed the
victim with a specific intent to make her unavailable as a witness; the
fact that the defendant had made the witness unavailable by
murdering her did not suffice to establish forfeiture in a manner that
would satisfy the confrontation clause.
 Does the intent to make the witness unavailable have to be the
defendant's sole motivation to permit the use of the unavailable
witness's statement? In Giles, for example, the defendant Giles had
been convicted of first-degree murder of his girlfriend based on
evidence that included hearsay testimony from the victim that Giles
had beaten and threatened to kill her three weeks before the murder.
The testimony had been offered to establish his intent to kill and to
rebut Giles's claim of self-defense. The Supreme Court vacated the
conviction and remanded the case to the state court to determine
whether Giles intended to make the victim unavailable as a witness.
According to the Court, the prior incident of domestic violence would
be relevant to that inquiry:
Acts of domestic violence often are intended to dissuade a victim from resorting to
outside help, and include conduct designed to prevent testimony to police officers or
cooperation in criminal prosecutions. Where such an abusive relationship culminates in
murder, the evidence may support a finding that the crime expressed the intent to isolate
the victim and to stop her from reporting abuse to the authorities or cooperating with a
criminal prosecution—rendering her prior statements admissible under the forfeiture
doctrine. [554 U.S. at 377.]
Lower courts, both before and after Giles, have held that it is not
necessary “to show that the defendant's sole motivation was to
procure the declarant's absence; rather, [the prosecution] need only
show that the defendant was motivated in part by a desire to silence
the witness.” United States v. Dhinsa, 243 F.3d 635, 652 (2d Cir.
2001); accord United States v. Jackson, 706 F.3d 264, 267 (4th Cir.
2013) (rejecting defendant's claim that sole motivation must be
shown).
At Which Trial Can the Statement Be Used? In the classic
forfeiture by wrongdoing case, the unavailable declarant's statements
pertain to past events or offenses (such as racketeering or drug
sales) that the declarant could have testified about at the time the
declarant was silenced by the defendant's wrongdoing. The
statements are then admitted against the defendant to prove these
past offenses. Increasingly, however, the government also prosecutes
the defendant for the act of wrongdoing—typically murder—that has
made the declarant unavailable. The content of some of the
declarant's hearsay statements may concern the murder itself, not the
defendant's past offenses as to which the declarant would have been
a witness or potential witness.
Defendants have argued that this is an improper extension of the
forfeiture-by-wrongdoing principle since the declarant's status as
“witness” is not related to any trial for his own murder. The above-
quoted language from Giles seems contrary to this narrow view. See
Giles, 554 U.S. at 377 (suggesting that “intent to isolate the victim
and to stop her from reporting [ongoing domestic] abuse” could
sustain a forfeiture

618

finding in a prosecution the victim's death from the abuse). Lower

courts, both before and after Giles, have unanimously declined to
impose any such limit on the application of Rule 804(b)(6), holding
that its broad terminology includes within its reach the admission of
statements by the declarant when the murder of the declarant is the
crime charged. See United States v. Stewart, 485 F.3d 666, 672 (2d
Cir. 2007) (“The text of Rule 804(b)(6) requires only that the
defendant intend to render the declarant unavailable 'as a witness.'
The text does not require that the declarant would otherwise be a
witness at any particular trial.”); Dhinsa, 243 F.3d at 652 (same).
United States v. Battle, 473 F. Supp. 2d 1185, 1195 (S.D. Fla. 2006)
(“Rule 804(b)(6) places no limitation on the subject matter of a
declarant's statement that can be offered against a defendant at
trial.”); State v. Miller, 234 Ariz. 31, 39, 316 P.3d 1219, 1227 (2013)
cert. denied, 134 S. Ct. 2668, 189 L. Ed. 2d 216 (2014) (“Miller
argues that this exception permits hearsay only in the trial for which
the defendant silenced the witness—here, the arson case. But Rule
804(b)(6) contains no such limitation. Moreover, such a restriction
would frustrate the rule's purpose of preventing a defendant from
benefiting from his wrongdoing.”).
b. Justification for the Admissibility of Forfeiture-by-Wrongdoing Statements
The justification for the admissibility of forfeiture-by-wrongdoing
statements is straightforward: “[T]he law [will not] allow a person to
take advantage of his own wrong.” Mastrangelo, 693 F.2d at 272. An
oft-quoted explication of this policy was stated in United States v.
White, 116 F.3d 903, 911 (D.C. Cir. 1997):
. . . It is hard to imagine a form of misconduct more extreme than the murder of a
potential witness. Simple equity supports a forfeiture principle, as does a common sense
attention to the need for fit incentives. The defendant who has removed an adverse
witness is in a weak position to complain about losing the chance to cross-examine him.
And where a defendant has silenced a witness through the use of threats, violence or
murder, admission of the victim's prior statements at least partially offsets the
perpetrator's rewards for his misconduct.
There is no reliability inquiry authorized by FRE 804(b)(6). The trial
court need not look for indicia of trustworthiness under either the
hearsay rule or the confrontation clause. Once the defendant has
waived these rights, the court “is not required to assess
independently the reliability of those statements.” United States v.
Dhinsa, 243 F.3d at 655.
c. Acquiescence in Wrongdoing
One of the principal concerns voiced to the Advisory Committee as
it was considering the adoption of FRE 804(b)(6) was the breadth of
the term “acquiesced in wrongfully causing . . . the declarant's
unavailability.” The broadest application of the rule has been stated
by the Tenth Circuit in United States v. Cherry, which applied the rule
to statements offered against co-conspirators who did not plan or in
any way participate in wrongdoing that caused the unavailability of
the declarant.

619
[T]he use of the words “engaged or acquiesced in wrongdoing” lends support to the
government's assertion that, at least for purposes of the hearsay rules, waiver can be
imputed under an agency theory of responsibility to a defendant who “acquiesced” in the
wrongful procurement of a witness's unavailability but did not actually “engage” in
wrongdoing apart from the conspiracy itself. [217 F.3d at 816.]
Cherry involved five defendants charged with a drug conspiracy.
Much of the evidence against them came from a cooperating witness
named Lurks, who was murdered by one of the five prior to trial. The
district court rejected the use of FRE 804(b)(6) against three of the
defendants, finding that there was “absolutely no evidence” that the
three “had actual knowledge of, agreed to or participated in the
murder of . . . Lurks.” Id. at 820. The government took an interlocutory
appeal, since exclusion of Lurks's statements against the three would
destroy its case. The Court of Appeals reversed, applying the
principles of conspiratorial liability enunciated in Pinkerton v. United
States, 328 U.S. 640 (1946) to define “acquiescence”:
. . . A defendant may be deemed to have waived his or her Confrontation Clause rights
(and, a fortiori, hearsay objections) if a preponderance of the evidence establishes . . .
[that] the wrongful procurement [of the defendant's unavailability] was in furtherance,
within the scope, and reasonably foreseeable as a necessary or natural consequence of
an ongoing conspiracy . . . Actual knowledge is not required for conspiratorial waiver by
misconduct if the[se] elements . . . are satisfied . . . We note that the scope of the
conspiracy is not necessarily limited to a primary goal—such as bank robbery—but can
also include secondary goals relevant to the evasion of apprehension and prosecution
for that goal—such as escape, or, by analogy, obstruction of justice . . . We further
reiterate that . . . a defendant is not responsible for the acts of co-conspirators if that
defendant meets the burden of proving he or she took affirmative steps to withdraw from
the conspiracy before those acts were committed. [217 F.3d at 820.]
If Cherry is correctly decided, the rule extends to active participants in
the wrongdoing, as well as those who knew about it as members of a
conspiracy and either agreed with it or simply failed to dissociate
themselves from the conspiracy. Cherry extends acquiescence even
further to include those without knowledge, as long as they were part
of a conspiracy in which some members procured a witness's
unavailability for the benefit of the conspirators. Perhaps the only
category of person excluded from this concept of acquiescence is
someone who merely benefited from the unavailability of the witness,
and nothing more. To date, other circuits have tended to follow
Cherry. United States v. Dinkins, 691 F.3d 358, 383-386 (4th Cir.
2012) (following Cherry); United States v. Martinez, 476 F.3d 961
(D.C. Cir. 2007) (FRE 804(b)(6) satisfied when defendant was
“aware” that his co-conspirators were “willing to engage in murder to
protect the conspiracy”); United States v. Thompson, 286 F.3d 950,
965 (7th Cir. 2002) (“[T]he waiver-by-misconduct of one conspirator
may be imputed to another conspirator if the misconduct was within
the scope and in furtherance of the conspiracy, and was reasonably
foreseeable to him.”).
 Whether Cherry was correctly decided or not, it is important to
undertake a careful analysis of “secondary goals” of the conspiracy.
We have seen how a conspiracy to commit a crime might be deemed
to end, for purposes of the co-conspirator hearsay exception, once
the conspiracy has entered a “concealment phase.” Whether
concealment is analyzed as the same conspiracy as that formed to
undertake the primary

620

crime, or as a new conspiracy to cover it up, may be a fact-intensive

inquiry not suitable to a broad legal rule.
d. Practical Applications

FRE 403. Admission of the unavailable declarant's statements is

not automatic, however, as the court must still perform the balancing
test under FRE 403. Prior to the adoption of FRE 804(b)(6), this
inquiry included evaluation of the reliability of the declarant's
statement to avoid the admission of “facially unreliable hearsay.”
Dhinsa, 243 F.3d at 655. Now that the specific exception is in place,
however, it would be highly unusual for the court to exclude a
statement that falls within the categorical exception on the basis of
“low probative value” based on the court's doubts about its reliability.
However, since FRE 804(b)(6) is a categorical exception that requires
absolutely no indicia of reliability, perhaps Rule 403's balancing test
should take reliability into account. There also remains the danger of
ambiguity, confusion, and undue prejudice from the inflammatory
nature of the evidence or its context for the court to consider.
Is an FRE 104(d) Hearing Required? Admission of the statement
under FRE 804(b)(6) requires the government to prove by a
preponderance of the evidence that the defendant procured the
unavailability of the declarant by wrongdoing, and did intend to do so
to prevent the declarant from being an actual or potential witness.
Courts are divided about whether this hearing should, as a matter of
course, be held outside the presence of the jury. Compare Dhinsa,
243 F.3d at 653 (hearing should be held outside presence of the jury),
with United States v. Baskerville, 448 F. App'x 243, 249-250 (3d Cir.
2011) (district court retains discretion to admit 804(b)(6) statement
conditionally “to avoid wasting judicial resources by conducting in
effect a trial before the trial”); United States v. Emery, 186 F.3d 921,
926 (8th Cir. 1999) (same). See also United States v. Gray, 405 F.3d
227, 241 (4th Cir. 2005) (“The district court need not hold an
independent evidentiary hearing if the requisite findings may be made
based upon evidence presented in the course of the trial.”). This will
be more of an issue in cases where the defendant is being tried for
the original underlying crime. Consider whether the jury could adhere
to the admonition of the judge to ignore a conditionally admitted
hearsay statement of a murder victim, where the government
eventually fails to present sufficient evidence of admissibility under
FRE 804(b)(6). Where the trial involves the defendant's participation
in the murder of the witness, however, sufficient evidence to sustain
the FRE804(b)(6) finding will be present if there is enough evidence
for the jury to convict the defendant of the murder.

KEY POINTS
1. If a party has procured the unavailability of a hearsay declarant
by wrongdoing, and intended to do so to prevent the declarant
from being an actual or potential witness, then the declarant's
statements are admissible against that party.
2. The party's conduct may have involved planning of,
participation in, or acquiescence in the wrongdoing.

621

PROBLEMS
8.73. Return to Problem 3.4, State v. Blair, at page 150. Police
investigation reveals that several weeks before the attack on
Norma, she filed a complaint against Jimmy for assault and
 battery. A police officer then interviewed both Jimmy and
Norma; Norma told the officer she wanted to drop the charges.
Since the attack, Norma is still unable to remember anything
about what happened that night, and she says she is unwilling
to testify against Jimmy. The prosecutor wants to know
whether, if Norma is called to the stand as a witness, all of the
entries in her diary that describe Jimmy's violent temper and
his beating of her over the past three years can be admitted
under FRE 804(b)(6). What issues in the application of this
exception are raised in this case? What would have to happen
at trial for the diary to be admitted?
8.74. Returning to problem 8.70 at page 612, in The Shawshank
Redemption, Andy DuFresne, in a state of great agitation, tells
the warden of Shawshank, Mr. Norton, about Williams's
potential testimony. Unfortunately for DuFresne, Warden
Norton is running a corrupt business scheme out of the prison
relying heavily on the assistance of DuFresne's accounting and
banking expertise. He therefore wants to keep DuFresne
locked up in Shawshank, and has Tommy Williams murdered
by Byron Hadley, the captain of the guards, in what is made to
look like an escape attempt by Williams.
DuFresne and several other inmates, including Red Redding
(Morgan Freeman) heard Tommy Williams's account of the
statement by Elmo Blatch. Could any of them testify about it if
DuFresne were given a new trial?
8.75. In the film Traffic, Helena Ayala (Catherine Zeta Jones) hires a
series of hit men to murder Eduardo Ruiz, a mid-level drug
dealer who has reluctantly agreed to testify for the prosecution
against Ayala's husband, Carlos, a drug kingpin who has been
jailed while awaiting trial. After an unsuccessful car bomb
attempt on Ruiz, he is murdered the morning he is due to
testify by the delivery of a poisoned breakfast to the hotel room
where he is being held in protective custody. In the movie, the
prosecution voluntarily dismisses the case telling the judge that
without Ruiz, they cannot meet their burden of proof.
 Assume that no incriminating written or verbal messages
have passed between Helena and Carlos during his pretrial
detention. Did the prosecution have any alternatives under the
rules of evidence?

F. THE RESIDUAL EXCEPTION

The Federal Rules of Evidence as originally promulgated by the

Supreme Court provided a broad residual exception in both FRE 803
and FRE 804 for a “statement not specifically covered by any of the
foregoing exceptions but having comparable circumstantial
guarantees of trustworthiness.” Effective December 1, 1997, the
Rules were amended to eliminate the two subsections and to add a
single, identical residual

622

hearsay exception as FRE 807. This repositioning of the residual

exceptions did not change the substance of the rule. Because of the
continued validity of pre-1997 case law referring to the residuals
under FRE 803(24) and 804(b)(5), and to avoid confusion, those
section numbers have not been reassigned to other rules. They
continue as placeholders that cross reference the reader to FRE 807.

1. FRE 807
RULE 807. RESIDUAL EXCEPTION
(a) In General. Under the following circumstances, a hearsay statement is not
excluded by the rule against hearsay even if the statement is not specifically covered by
a hearsay exception in Rule 803 or 804:
(1) the statement has equivalent circumstantial guarantees of trustworthiness;
(2) it is offered as evidence of a material fact;
(3) it is more probative on the point for which it is offered than any other evidence
that the proponent can obtain through reasonable efforts; and
(4) admitting it will best serve the purposes of these rules and the interests of
justice.
(b) Notice. The statement is admissible only if, before the trial or hearing, the
proponent gives an adverse party reasonable notice of the intent to offer the statement
and its particulars, including the declarant's name and address, so that the party has a
fair opportunity to meet it.
2. Explanation of FRE 807
The factual requirements for FRE 807 are:

the statement must have circumstantial guarantees of

trustworthiness;
these guarantees should be “equivalent” to the exceptions in
Rules 803 and 804;
the statement is offered to prove a material fact;
the statement is more probative on the point for which it is
offered than any other evidence that can be obtained through
reasonable efforts;
admission will serve the general purposes of the rules and the
interests of justice; and
notice is given to the opponent.
a. Principles and Policies Underlying the Residual Exception

Justification. The first thing to notice about FRE 807 is that it is not
a categorical exception. There are no categorical requirements
concerning the identity of the declarant, the content of the statement,
or the circumstances in which the statement

623

was made. There is no categorical requirement that the declarant

be unavailable. Instead, the principal requirements for admission are
that the statement has “circumstantial guarantees of trustworthiness”
and that it is “more probative” than other reasonably available
evidence—clearly individualized judgments to be made by the trial
judge.
The residual exception is justified primarily on grounds of necessity.
It envisions exceptional cases where the exclusion of hearsay
evidence will result in an injustice, due to the combined weight of the
proponent's need for the evidence and the presence of factors
suggesting that the hearsay in question is reliable and comes close to
qualifying for one of the categorical hearsay exceptions.
 At the same time, the residual exception stands in significant
tension with the system of categorical exceptions to the hearsay rule.
Although there are many exceptions that allow hearsay statements to
be admitted for their truth (and exemptions that allow many out-of-
court statements to be admitted as technical nonhearsay), a great
deal of hearsay is still excluded from evidence under the general
principle of FRE 802. By maintaining a categorical approach, and
adhering with reasonable strictness to the definitional facts that
trigger the exceptions and exemptions, the continued vitality of the
hearsay rule is preserved. Giving broad discretionary powers to
judges to admit hearsay deemed “reliable” could undermine the
hearsay rule.
Limitations on Use of the Exception. The residual exception is
quite plainly a discretionary power to admit hearsay deemed reliable.
Is there a way to square this circle—to sustain a broad general
hearsay exclusion with categorically limited exceptions and
exemptions, while at the same time acknowledging a discretionary
reliability exception? Perhaps so, but only by confining the Residual
Exception to truly exceptional circumstances. It is probably fair to say
that the intent of the Residual Exception is such that it should not be
used at all in the majority of cases.
The Advisory Committee Note to the residual exception made this
clear:
It is intended that the residual hearsay exceptions will be used very rarely, and only in
exceptional circumstances. The committee does not intend to establish a broad license
for trial judges to admit hearsay statements that do not fall within one of the other
exceptions contained in rules 803 and 804(b). The residual exceptions are not meant to
authorize major judicial revisions of the hearsay rule, including its present exceptions.
Such major revisions are best accomplished by legislative action.
Congress intended that Rule 807 “be used very rarely, and only in
exceptional circumstances.” Coyle v. Kristjan Palusalu Mar. Co., 83 F.
Supp. 2d 535, 545 (E.D. Pa. 2000); accord United States v. Bailey,
581 F.2d 341, 347 (3d Cir.1978) (residual hearsay exception is “to be
used only rarely, and in exceptional circumstances” and is meant to
“apply only when certain exceptional guarantees of trustworthiness
exist and when high degrees of probativeness and necessity are
present”).
b. Preliminary Factfinding
The following example illustrates some of the major preliminary
factfinding issues in applying the residual exception:

624
Ed Barns has sued Acme Used Cars for injuries that he sustained when he and a friend
were examining a used car at the Acme lot. The car would not start, so Fred Anders, an
Acme mechanic, offered his assistance. Barns was pouring gasoline from a small can
into the carburetor while his companion attempted to start the engine. The engine
backfired and ignited the can, and Barns suffered severe burn injuries. At trial, Barns
claimed that he was acting pursuant to Fred Anders's instructions to pour the gasoline
directly into the carburetor. Acme claimed that, to the contrary, Anders warned Barns to
stop what he was doing.
Anders died before the trial. Acme offers into evidence Exhibit B, an authenticated
handwritten statement signed by Anders that describes the incident and states that he
warned Barns not to pour the gasoline. Acme offers the foundational testimony of
Anders's supervisor, Georgia Breen:
I learned of the accident within several hours of its occurrence. I immediately
instructed Fred Anders to go into a room, not to talk to anyone else, and to write down
everything that happened. Anders obeyed my instruction and came back with a
handwritten statement within 30 minutes. I recognized his handwriting and he signed
the document in my presence. I recognize Exhibit B as that document.
Exhibit B does not fall within any of the categorical exceptions under
FRE 803 and FRE 804. Should it be admitted into evidence under
FRE 807?
c. FRE 807(a)(1): Circumstantial Guarantees of Trustworthiness
To admit Anders's statement under the residual exception, Acme
would have to show by a preponderance of the evidence that the
statement bears “circumstantial guarantees of trustworthiness.” Case
law has established two principal means of establishing
trustworthiness.
Reliability of Testimonial Qualities. The most common means of
satisfying the trustworthiness requirement is to show that one or more
of Anders's testimonial qualities appears to be reliable because of the
circumstances within which it was made.
[A]ll of the traditional hearsay exceptions minimize one or more of the four hearsay risks:
(1) insincerity; (2) faulty perception; (3) faulty memory; and (4) faulty narration . . . the
Court must determine the relative degree to which the [proffered item] is prone to the
hearsay risks, and if any of the risks are minimized by circumstantial guarantees of
trustworthiness. [United States v. Southern Indiana Gas and Electric Co., 258 F. Supp.
2d 884, 890 (S.D. Ind. 2003).]
Facts relating to the identity, knowledge, qualifications, and
motivation of the declarant; the content of the statement; and the
circumstances in which it was made are all considered for their effect
on testimonial qualities. For example, in United States v. Tome, 61
F.3d 1446, 1453 (10th Cir.1995), the Tenth Circuit considered the
admissibility under the residual exception of statements made by
defendant's daughter concerning acts of alleged sexual abuse.
Statements made to a social worker were considered to be
trustworthy because the social worker was trained in interviewing
children and used open-ended, nonleading questions (context
promotes sincerity), and the declarant used childish language while
describing the abuse with specificity and detail (content indicates
sincerity and memory). Other circumstances, however,

625

cast doubt on the statement's trustworthiness: The statement was

not spontaneous because the declarant knew that she was taken to
the social worker in order to say what the defendant had done to her
(context provides opportunity for insincerity); it was made a year after
the events described (context affects memory); and it was made
when the declarant arguably had a motive to lie because she wanted
to live with her mother, not her father (identity of declarant provides
motive to lie). The court held that the statement did not qualify for the
residual exception because of these equivocal circumstances. Other
factors relevant to reliability would be the length of time between the
incident and making the hearsay statement, and whether the child
made the same statements consistently to adults.
 Motive and incentive to lie commonly figure in evaluations of
trustworthiness: United States v. Walker, 410 F.3d 754 (5th Cir. 2005)
(interview at police station, not under oath, facing the threat of
criminal charges); United States v. Wright, 363 F.3d 237 (3d Cir.
2004) (self-serving statements made when declarant knew he was
under investigation); Land Grantors v. United States, 86 Fed. Cl. 35,
42 (Fed. Cl. 2009) (direct interest in mineral rich land indicated
guarantees of trustworthiness were lacking). Other courts mention
factors relating to perception and memory: New Colt Holding Corp. v.
RJG Holdings of Fla., Inc., 312 F. Supp. 2d 195, 223 (D. Conn. 2004)
(“A methodologically sound survey can reduce . . . the danger of
insincerity and faulty narration [and] . . . a particular memory survey
which . . . relates to events that were learned by direct perception and
are unlikely to be forgotten, can . . . minimize all five of the classes of
risk ordinarily associated with survey evidence.”); In re Columbia
Securities Litigation, 155 F.R.D. 466, 475 (S.D.N.Y. 1994) (“Unless
their author is available for cross-examination, newspaper stories
generally will present a blank face that gives little clue as to the
reliability of the reporter's perception, memory, narration, or sincerity,
and in addition facts to disclose how the article was changed in the
editing process”.).
In the hypothetical case against Acme Used Cars, what
circumstances bear on the reliability of Anders's testimonial qualities?
You should by now be able make arguments both for and against
trustworthiness.
Independent Corroboration. The second means of establishing
trustworthiness is to show by way of independent corroborating
evidence that the facts asserted in the particular hearsay statement
are probably accurate. Larez v. City of Los Angeles, 946 F.2d 630,
643 & 643 n.6 (9th Cir. 1991) (news account of a specific quotation
from the defendant met “circumstantial guarantees of trustworthiness”
requirement when three independent newspapers attributed similar
quotations to defendant). Testimony given before a grand jury was
frequently admitted under the residual exception when its contents
were corroborated. Under the Supreme Court opinion in Crawford v.
Washington, however, grand jury testimony qualifies as a
“testimonial” statement. Because the criminal defendant is not
present during the grand jury proceeding and cannot cross-examine
the witnesses there, the prosecution is prohibited from using grand
jury testimony under the confrontation clause in criminal cases,
unless the declarant also testifies. It is possible, however, that this
testimony might still be admitted under the residual exception in a
civil case.

626
d. FRE 807(a)(1) (continued): Equivalence
FRE 807(a)(1) also requires that the guarantees of trustworthiness
be “equivalent,” presumably to the guarantees in FRE 803 and FRE
804. Since the apparent trustworthiness of the hearsay admitted
under all 28 categorical exceptions varies widely in both kind and
degree, it is impossible to identify a single standard, and a rigorous
showing of “equivalence” is not required. But courts sometimes do
analogize the hearsay sought to be admitted to the indicia of
trustworthiness of some categorically admitted hearsay, such as
spontaneity, against interest, or careful routine. United States v.
Perez, 217 F.3d 323, 329 (5th Cir. 2000) (statements by illegal
immigrants “bore . . . indicia of reliability equivalent to declarations
against interest” because made to agency responsible for their
deportation and possible prosecution; however, inadmissible because
made not under oath and in an informal interview); Conoco, Inc. v.
Department of Energy, 99 F.3d 387, 392 (Fed. Cir. 1997) (purchase
summaries do not have same indicia of reliability as commercial
publications).
The “near miss” doctrine. A “near miss” is said to occur when a
hearsay statement almost, but not quite, fits within one of the
categorical hearsay exceptions and would thus be inadmissible but
for the residual exception. The majority of Circuits now agree that the
language of FRE 807—“not specifically covered by a hearsay
exception in Rule 803 or 804”—means that statements found to be
inadmissible under the Rule 803 and 804 categories may still be
considered under Rule 807. That a statement “almost fits” into other
hearsay exceptions can be held to favor admissibility under FRE 807,
but that factor is not determinative and does not alone compel
admission. United States v. Bonds, 608 F.3d 495, 501 (9th Cir. 2010).
The “near miss” doctrine obviously stands in considerable tension
with the categorical approach to the hearsay exceptions, which
presumes that the absence of one of the elements tends to
undermine the reliability of the statement.
e. FRE 807(a)(2)-(4): Preventing Overuse of the Exception
FRE 807(a)(2)-(4) are best understood as limitations intended to
prevent the residual exception from being overused and thereby
swallowing the hearsay rule. Looked at in isolation, subsections (a)(2)
and (a)(4) don't seem particularly meaningful. Subsection (a)(2)
requires that the proponent must show that the statement is offered
as evidence of a “material” fact. On its face, this term means nothing
more than that the statement must be relevant. Subsection (a)(4)'s
requirement that admitting the hearsay should “best serve the
purposes of these rules and the interests of justice” has been
criticized as “so abstruse in formulation as to constitute little guidance
for the court.” In re Drake, 786 F. Supp. 229, 233 (E.D.N.Y. 1992).
Subsection (a)(3) seems somewhat more meaningful. It requires a
showing of both great need for the evidence and that the proponent
has been reasonably diligent in attempting to secure evidence in
admissible form instead of placing undue reliance on using the
residual exception. See United States v. Patrick, 248 F.3d 11, 25 (1st
Cir. 2001) (affidavit inadmissible since officer who conducted the
search described in the affidavit was available); Andrekus v. Board of
Educ., 2004 U.S. Dist. LEXIS 19388, at *28 (N.D. Ill.) (affidavits and
depositions rather than hearsay note are

627

“better evidence” for summary judgment proceedings); Conoco Inc.

v. Department of Energy, 99 F.3d 387, 393 (Fed. Cir. 1997) (original
underlying records of purchases of crude oil were more probative
than summaries, and DOE made no showing that reasonable efforts
would not produce them). If the declarant is deceased and once had
knowledge about a central fact that would be otherwise unavailable,
courts weigh this need heavily in making the Rule 807 decision.
Bohler-Udderholm Am., Inc. v. Ellwood Group, Inc., 247 F.3d 79 (3d
Cir. 2001) (affidavit of deceased representative of plaintiff at a crucial
board of directors' meeting was the only available source to contradict
defendant's version of what was said at the meeting).
Subsections (a)(2) through (a)(4) are thus best understood in
conjunction at getting at a single idea: The residual exception should
be resorted to only when, despite diligent efforts to obtain admissible
evidence, none is available to prove a crucial point other than the
inadmissible, but reliable hearsay, whose exclusion from evidence
would result in an injustice. Viewed in this way, subsections (a)(2)
through (a)(4) signal to courts that the residual exception should be
rarely used, and as a last resort on behalf of reasonably diligent
parties. United States v. Libby, 475 F. Supp. 2d 73, 79 (D.D.C. 2007)
(hearsay admitted under the residual exception must be “very
important and very reliable such that it is the best evidence to prove
the [offering party's] point and there is no other evidence available
that would have the same influence.”). See also United States v.
Washington, 106 F.3d 983, 1001 (D.C.Cir.1997) (the residual
exception is to be narrowly construed).
f. Notice
The proponent is required by FRE 807(b) to inform the opponent of
the intent to use the residual exception, and of the particulars of the
statement and location of the declarant. This enables the opponent to
prepare in order to argue more effectively against admission. It also
serves to prevent reliance on the residual exception as a spur-of-the-
moment fallback argument for parties whose hearsay evidence has
been excluded, and to stiffen the resolve of judges to resist lawyers'
last-minute protestations of need.
The requirement that notice be given before trial is, however, far
from absolute. Some courts have interpreted the requirement liberally,
upholding admission if the hearsay statement was disclosed within
sufficient time—even on the first day of trial—to permit the opponent
to prepare to contest the use of the statement. A continuance may be
granted to permit the opponent to meet the evidence. In United
States v. Panzardi-Lespier, 918 F.2d 313, 316-318 (1st Cir. 1990), the
court discussed the conflicting case law on the strict versus the
flexible approach to pretrial notice. It held that even in a criminal
case, notice on the first day of trial was sufficient where seven days
elapsed before the statement was actually offered into evidence.
There was no surprise to its content, and opposing party had ample
time to review it and prepare its defense. And if the proponent could
not have reasonably anticipated the need for the residual exception,
the notice requirement may be excused altogether by the judge.
There are limits, however, even to this flexible approach. In United
States v. Coney, 51 F.3d 164 (8th Cir. 1995), it was held to be not an
abuse of the trial court's discretion

628

to refuse admission to a report offered by the defendant under the

residual exception 45 minutes before she wanted to introduce it. If the
opponent knows of the existence of the hearsay statement before
trial, and of the proponent's intent to use it, courts have applied the
notice requirement flexibly where there is no prejudice.

3. FRE 807 in Practice: How Much Hearsay Is Admitted Under the

Residual Exception?
The trial judge's decision whether to admit Anders's statement under
FRE 807 might be influenced by the general policy underlying the
residual exception. Is the residual exception—which is, after all, a
radical departure from the strict categorical approach of the common
law—to be used frequently or rarely? Liberally or sparingly?
According to the Senate Judiciary Committee:
It is intended that the residual hearsay exceptions will be used very rarely, and only in
exceptional circumstances. The committee does not intend to establish a broad license
for trial judges to admit hearsay statements that do not fall within one of the other
exceptions contained in rules 803 and 804(b). The residual exceptions are not meant to
 authorize major judicial revisions of the hearsay rule, including its present exceptions.
Such major revisions are best accomplished by legislative action.
There is language in appellate opinions in most of the Circuits that
FRE 807 was designed for “exceptional” circumstances, and Circuit
courts have given district courts wide discretion in its application. In a
study of reported decisions from 1975 through 1991, the following
kinds of statements were most frequently admitted under the residual
exceptions (also called “catchall” exceptions):
Prosecutors attempted to introduce grand jury testimony in thirty-seven cases pursuant
to the 804(b)(5) catchall exception. In twenty-nine of these cases, the court admitted the
hearsay. Another hidden catchall category encompasses written and oral statements
made to law enforcement officials which are prior consistent or inconsistent statements
[of a testifying witness] not fitting the Rule 801 criteria. A growing number of cases
appear to include statements to law enforcement officials by declarants not present at
trial. Such declarants have ranged from accomplices to spouses, victims, and truly
disinterested individuals. [Myrna S. Raeder, Commentary: A Response to Professor
Swift, 76 Minn. L. Rev. 507, 514-516 (1992).]
Professor Raeder expressed concern that such decisions “permit the
total erosion of the hearsay rule by judicial discretion.” Id. at 517. We
will see in Section G, infra, that the application of the confrontation
clause following Crawford v. Washington will change these results in
criminal cases. Grand jury testimony and statements made to law
enforcement may be excluded, although all prior statements of a
testifying witness would be admitted. Concern has also been
expressed that undue focus on whether a statement is or is not a
“near miss” has distracted courts from careful evaluation of the
“equivalency” of the circumstantial guarantees of trustworthiness
required by FRE 807. Elizabeth DeCoux, Textual Limits on the
Residual Exception to the Hearsay Rule: The “Near Miss” Debate and
Beyond, 35 S.U. L. Rev. 99 (2007).

629

Judge Richard Posner has recently proposed dramatically

expanding the residual exception to “swallow” the hearsay rule. In
Posner's conception, a simplified hearsay rule would simplify FRE
807 to admit hearsay “when it is reliable, when the jury can
understand its strengths and limitations, and when it will materially
enhance the likelihood of a correct outcome.” United States v. Boyce,
742 F.3d 792, 802 (2014) (Posner, J., concurring)

KEY POINTS
1. Under FRE 807, the judge has discretion to admit hearsay
statements that appear to be reliable; that is, they have
circumstantial guarantees of trustworthiness either because
the statement has circumstantial guarantees of trustworthiness
similar to one or more of the categorical hearsay exceptions or
exemptions, or because the contents of the statement are
corroborated.
2. The offering party must have great need for the evidence,
because of its importance to his case and his inability to obtain
evidence on that point despite reasonable diligence. The
proponent should have an argument that failure to admit the
evidence under the residual exception could led to an unjust
result.
3. The proponent of the statement must also notify the opponent
of the intent to invoke the residual exception, preferably before
trial. This requirement prevents reliance on the residual
exception as an afterthought.

PROBLEMS
8.76. Return to Problem 8.49 at page 538. At 3:00 . . on January
26, Mrs. D'Onofrio was asked to complete and sign a complaint
form by one of the police officers. She repeated, in writing, the
statements she had made earlier concerning her husband's
behavior on January 24, 25 and 26. She signed her name
twice, acknowledging that the police officer was relying upon
her allegations to establish probable cause to arrest Louis
D'Onofrio for brandishing a weapon, and affirming that her
 statements were true. This form, as well as the hearsay
statements in Problem 8.49, are the only proof that Louis
D'Onofrio had a gun in his possession and threatened her with
it. At trial, Mrs. D'Onofrio asserts her marital privilege, which
prevents the government from calling her as a witness against
her husband. Is the written statement admissible into
evidence?
8.77. In preparing the prosecution of Barry Bonds, Problem 4.5 on
page 208, the government contended that the statements
made by Bonds's trainer Greg Anderson to James Valente at
BALCO identifying the urine samples as coming from Bonds
were admissible under FRE 807. The government based its
argument on these statements “nearly missing” admissibility as
statements against interest under FRE 804(b)(3), and being
“exactly the type of scenario” FRE 807 was intended to remedy
when Anderson refused to testify. Should Anderson's
statements be admitted under the residual exception?
Consider all of its terms in constructing your argument.

630

G. HEARSAY AND THE CONFRONTATION CLAUSE

The Confrontation Clause in the Sixth Amendment to the United

States Constitution states: “In all criminal prosecutions, the accused
shall enjoy the right . . . to be confronted with the Witnesses against
him.” The meaning of this terse phrase is far from clear: There is
virtually no legislative history shedding light on the Framers' intent,
and the words themselves are subject to a number of possible
interpretations. When the prosecution presents a witness at trial, the
Supreme Court's most frequently cited analysis is that the clause
requires
a personal examination and cross-examination of the witness in which the accused has
the opportunity, not only of testing the recollection and sifting the conscience of the
witness, but of compelling him to stand face to face with the jury in order that they may
look at him, and judge by his demeanor upon the stand and the manner in which he
 gives his testimony whether he is worthy of belief. [Mattox v. United States, 156 U.S.
237, 242-243 (1895).]
As you know, most hearsay admitted through the exceptions and
exemptions does not require the presence of the hearsay declarant
as a witness in court. Thus, the admission of hearsay presents an
immediate threat to the criminal defendant's confrontation right. A
literal reading of the clause, however, might hold that it operates only
when the prosecutor calls witnesses. All hearsay could be admitted
without regard to confrontation rights. Or, “witnesses” might be
interpreted more broadly to include all individuals who provide
evidence against the defendant. All hearsay would then be within the
reach of the clause and no hearsay could be admitted without
confrontation and cross-examination.
In Crawford v. Washington, 541 U.S. 124 (2004), the U.S. Supreme
Court provided a new interpretation of criminal defendants'
confrontation right. In keeping with its own past opinions, the Court
held that the Confrontation Clause bars the use of some, but not of
all, hearsay against criminal defendants. It provided a new set
standard to test when the confrontation right is violated. The Crawford
opinion will concern us throughout this section. We begin our
discussion with a brief analysis of the Court's interpretation of the
confrontation clause prior to Crawford. The approach developed in
Ohio v. Roberts, 448 U.S. 56 (1980), is important for understanding
the Court's critique of Roberts, its new stance in Crawford, and its
evolving development of the confrontation right.

1. Ohio v. Roberts
In Roberts, the Supreme Court had seemed to establish a two-
pronged test—unavailability and reliability—for satisfying the
accused's confrontation right when hearsay is admitted but the
declarant does not testify:
The Confrontation Clause operates in two separate ways to restrict the range of
admissible hearsay. First, in conformity with the Framers' preference for face-to-face
accusation, the Sixth Amendment establishes a rule of necessity. In the usual case
(including
631
cases where prior cross-examination has occurred), the prosecution must either
produce, or demonstrate the unavailability of, the declarant whose statement it wishes to
use against the defendant . . . . The second aspect operates once a witness is shown to
be unavailable. Reflecting its underlying purpose to augment accuracy in the factfinding
process by ensuring the defendant an effective means to test adverse evidence, the
Clause countenances only hearsay marked with such trustworthiness that “there is no
material departure from the reason of the general rule.” The Court has applied this
“indicia of reliability” requirement principally by concluding that certain hearsay
exceptions rest upon such solid foundations that admission of virtually any evidence
within them comports with the “substances of the constitutional protection.” [Mattox v.
United States, 156 U.S. 237, 244 (1895).] . . . In sum, when a hearsay declarant is not
present for cross-examination at trial, the Confrontation Clause normally requires a
showing that he is unavailable. Even then, his statement is admissible only if it bears
adequate “indicia of reliability.” Reliability can be inferred without more in a case where
the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence
must be excluded, at least absent a showing of particularized guarantees of
trustworthiness. [448 U.S. at 65-66.]
Twelve years later, in White v. Illinois, 502 U.S. 346, 354 (1992), the
Court virtually abandoned the unavailability requirement by limiting it
to statements admitted as former testimony under FRE 804(b)(1).
Thus, for most hearsay, the confrontation clause under Roberts
imposed only an inquiry whether the hearsay statement fits within a
“firmly rooted” exception and, if it does not, whether there are
“particularized guarantees” of the statement's trustworthiness.
a. “Firmly Rooted” Hearsay Exceptions
Many exceptions under FRE 803 and 804 were then found to be
“firmly rooted.” In Roberts, the Court stated that exceptions for
business records, dying declarations, and public records are firmly
rooted. Co-conspirator statements were found to be firmly rooted in
Bourjaily v. United States 483 U.S. 171, 182 (1987) (with vigorous
dissent); and statements falling within the traditional exceptions for
present sense impression, excited utterances, statements of state of
mind, and past recollection recorded survived challenge under the
confrontation clause. This meant that the legislatively drawn
categorical hearsay exceptions of the Federal Rules stood in for
judicial analysis of the right to confrontation in most cases.
 b. Not Firmly Rooted Exceptions Require “Particularized Guarantees of
Trustworthiness”
A Supreme Court plurality in Lilly v. Virginia, 527 U.S. 116 (1999),
held that statements against penal interest, admitted under FRE
804(b)(3), are not firmly rooted. The Court had previously discussed
the “particularized guarantees of trustworthiness” test in Idaho v.
Wright, 497 U.S. 805 (1990), when it held that the residual exception
(now FRE 807) was not firmly rooted. In Wright, the Court
characterized “particularized guarantees of trustworthiness” as the
inherent trustworthiness of the declarant's

632

statement, to be found in the circumstances that “surround the

making of the statement.” Id. at 821. The Court specifically prohibited
the consideration of corroboration, that is, independent evidence that
corroborates the contents of the statement itself. Courts had come to
rely on corroboration to satisfy the residual exception's requirement of
“circumstantial guarantees of trustworthiness,” particularly in
admitting statements of grand jury witnesses, which often bore few
indicia of inherent trustworthiness. Under Wright, the use of
corroboration was prohibited to satisfy the “particularized”
trustworthiness standard for all not firmly rooted hearsay.
Also in Lilly v. Virginia, Justices Scalia and Thomas each wrote
separately to state their views that the proper scope of the
confrontation right was more limited than the Court's opinions in
Roberts, Wright, and Lilly had held. That right, they asserted, “is
implicated by extra judicial statements only insofar as they are
contained in formalized testimonial material, such as affidavits,
depositions, prior testimony or confessions.” 527 U.S. at 365. Justice
Breyer wrote in his separate concurrence that Roberts's linkage of the
confrontation right so closely to the “firmly rooted” provisions of the
hearsay rule was both too broad and too narrow a standard, and that
this linkage was an open question to be considered at another time.
In Crawford, five years after Lilly, that time had come.
2. Crawford v. Washington

CRAWFORD V. WASHINGTON

541 U.S. 36 (2004)

Justice S delivered the opinion of the Court, in which
S ,K ,S ,T ,G , and B , JJ.,
joined. R , C.J., filed an opinion concurring in the judgment,
in which O'C , J., joined.
Petitioner Michael Crawford stabbed a man who allegedly tried to
rape his wife, Sylvia. At his trial, the State played for the jury Sylvia's
tape-recorded statement to the police describing the stabbing, even
though he had no opportunity for cross-examination. The Washington
Supreme Court upheld petitioner's conviction after determining that
Sylvia's statement was reliable. The question presented is whether
this procedure complied with the Sixth Amendment's guarantee that,
“[i]n all criminal prosecutions, the accused shall enjoy the right . . . to
be confronted with the witnesses against him.”
I
On August 5, 1999, Kenneth Lee was stabbed at his apartment.
Police arrested petitioner later that night. After giving petitioner and
his wife Miranda warnings, detectives interrogated each of them
twice.9 Petitioner eventually confessed that he and

633

Sylvia had gone in search of Lee because he was upset over an

earlier incident in which Lee had tried to rape her. The two had found
Lee at his apartment, and a fight ensued in which Lee was stabbed in
the torso and petitioner's hand was cut.
Petitioner gave the following account of the fight:
“Q. Okay. Did you ever see anything in [Lee's] hands?
“A. I think so, but I'm not positive.
“Q. Okay, when you think so, what do you mean by that?
“A. I coulda swore I seen him goin' for somethin' before, right before everything happened.
He was like reachin', fiddlin' around down here and stuff . . . and I just . . . I don't know,
 I think, this is just a possibility, but I think, I think that he pulled somethin' out and I
grabbed for it and that's how I got cut . . . but I'm not positive. I, I, my mind goes blank
when things like this happen. I mean, I just, I remember things wrong, I remember
things that just doesn't, don't make sense to me later.” (punctuation added).
Sylvia generally corroborated petitioner's story about the events
leading up to the fight, but her account of the fight itself was arguably
different—particularly with respect to whether Lee had drawn a
weapon before petitioner assaulted him:
“Q. Did Kenny do anything to fight back from this assault?
“A. (pausing) I know he reached into his pocket . . . or somethin' . . . I don't know what.
“Q. After he was stabbed?
“A. He saw Michael coming up. He lifted his hand . . . his chest open, he might [have] went
to go strike his hand out or something and then (inaudible).
“Q. Okay, you, you gotta speak up.
“A. Okay, he lifted his hand over his head maybe to strike Michael's hand down or
something and then he put his hands in his . . . put his right hand in his right pocket . . .
took a step back . . . Michael proceeded to stab him . . . then his hands were like . . .
how do you explain this . . . open arms . . . with his hands open and he fell down . . .
and we ran (describing subject holding hands open, palms toward assailant).
“Q. Okay, when he's standing there with his open hands, you're talking about Kenny,
correct?
“A. Yeah, after, after the fact, yes.
“Q. Did you see anything in his hands at that point?
“A. (pausing) um um (no).” (punctuation added).
The State charged petitioner with assault and attempted murder. At
trial, he claimed self-defense. Sylvia did not testify because of the
state marital privilege, which generally bars a spouse from testifying
without the other spouse's consent. In Washington, this privilege does
not extend to a spouse's out-of-court statements admissible under a
hearsay exception, so the State sought to introduce Sylvia's tape-
recorded statements to the police as evidence that the stabbing was
not in self-defense. Noting that Sylvia had admitted she led petitioner
to Lee's apartment and thus had facilitated the assault, the State
invoked the hearsay exception for statements against penal interest,
Wash. Rule Evid. 804(b)(3) (2003).

634

Petitioner countered that, state law notwithstanding, admitting the

evidence would violate his federal constitutional right to be
“confronted with the witnesses against him.” Amdt. 6. According to
our description of that right in Ohio v. Roberts, 448 U.S. 56 (1980), it
does not bar admission of an unavailable witness's statement against
a criminal defendant if the statement bears “adequate 'indicia of
reliability.' ” To meet that test, evidence must either fall within a “firmly
rooted hearsay exception” or bear “particularized guarantees of
trustworthiness.” The trial court here admitted the statement on the
latter ground, offering several reasons why it was trustworthy: Sylvia
was not shifting blame but rather corroborating her husband's story
that he acted in self-defense or “justified reprisal”; she had direct
knowledge as an eyewitness; she was describing recent events; and
she was being questioned by a “neutral” law enforcement officer. The
prosecution played the tape for the jury and relied on it in closing,
arguing that it was “damning evidence” that “completely refutes
[petitioner's] claim of self-defense.” The jury convicted petitioner of
assault.
The Washington Court of Appeals reversed. It applied a nine-factor
test to determine whether Sylvia's statement bore particularized
guarantees of trustworthiness, and noted several reasons why it did
not: The statement contradicted one she had previously given; it was
made in response to specific questions; and at one point she
admitted she had shut her eyes during the stabbing. The court
considered and rejected the State's argument that Sylvia's statement
was reliable because it coincided with petitioner's to such a degree
that the two “interlocked.” The court determined that, although the two
statements agreed about the events leading up to the stabbing, they
differed on the issue crucial to petitioner's self-defense claim:
“[Petitioner's] version asserts that Lee may have had something in his
hand when he stabbed him; but Sylvia's version has Lee grabbing for
something only after he has been stabbed.”
The Washington Supreme Court reinstated the conviction,
unanimously concluding that, although Sylvia's statement did not fall
under a firmly rooted hearsay exception, it bore guarantees of
trustworthiness: “ '[W]hen a codefendant's confession is virtually
identical [to, i.e., interlocks with,] that of a defendant, it may be
deemed reliable.' ” The court explained:
 Although the Court of Appeals concluded that the statements were contradictory, upon
closer inspection they appear to overlap . . . .
[B]oth of the Crawfords' statements indicate that Lee was possibly grabbing for a
weapon, but they are equally unsure when this event may have taken place. They are
also equally unsure how Michael received the cut on his hand, leading the court to
question when, if ever, Lee possessed a weapon. In this respect they overlap.
[N]either Michael nor Sylvia clearly stated that Lee had a weapon in hand from which
Michael was simply defending himself. And it is this omission by both that interlocks the
statements and makes Sylvia's statement reliable.10

635

We granted certiorari to determine whether the State's use of Sylvia's

statement violated the Confrontation Clause.
II
The Sixth Amendment's Confrontation Clause provides that, “[i]n all
criminal prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him.” We have held that this
bedrock procedural guarantee applies to both federal and state
prosecutions. Pointer v. Texas, 380 U.S. 400 (1965). As noted above,
Roberts says that an unavailable witness's out-of-court statement
may be admitted so long as it has adequate indicia of reliability—i.e.,
falls within a “firmly rooted hearsay exception” or bears “particularized
guarantees of trustworthiness.” Petitioner argues that this test strays
from the original meaning of the Confrontation Clause and urges us
to reconsider it.
A
The Constitution's text does not alone resolve this case. One could
plausibly read “witnesses against” a defendant to mean those who
actually testify at trial, those whose statements are offered at trial, see
3 J. Wigmore, Evidence §1397, p 104 (2d ed. 1923) (hereinafter
Wigmore), or something in-between. We must therefore turn to the
historical background of the Clause to understand its meaning.
The right to confront one's accusers is a concept that dates back to
Roman times. The founding generation's immediate source of the
concept, however, was the common law. English common law has
long differed from continental civil law in regard to the manner in
which witnesses give testimony in criminal trials. The common-law
tradition is one of live testimony in court subject to adversarial testing,
while the civil law condones examination in private by judicial officers.
See 3 W. Blackstone, Commentaries on the Laws of England 373-
374 (1768).
Nonetheless, England at times adopted elements of the civil-law
practice. Justices of the peace or other officials examined suspects
and witnesses before trial. These examinations were sometimes read
in court in lieu of live testimony, a practice that “occasioned frequent
demands by the prisoner to have his 'accusers,' i.e., the witnesses
against him, brought before him face to face.” 1 J. Stephen, History of
the Criminal Law of England 326 (1883). In some cases, these
demands were refused. See 9 W. Holdsworth, History of English Law
216-217, 228 (3d ed. 1944); e.g., Raleigh's Case, 2 How. St. Tr. 1,
15-16, 24 (1603).
Pretrial examinations became routine under two statutes passed
during the reign of Queen Mary in the 16th century. These Marian bail
and committal statutes required justices of the peace to examine
suspects and witnesses in felony cases and to certify the results to
the court. It is doubtful that the original purpose of the examinations
was to produce evidence admissible at trial. Whatever the original
purpose, however, they came to be used as evidence in some cases,
see M. Hale, Pleas of the Crown 284 (1736), resulting in an adoption
of continental procedure.
The most notorious instances of civil-law examination occurred in
the great political trials of the 16th and 17th centuries. One such was
the 1603 trial of Sir Walter Raleigh for treason. Lord Cobham,
Raleigh's alleged accomplice, had implicated him

636

in an examination before the Privy Council and in a letter. At

Raleigh's trial, these were read to the jury. Raleigh argued that
Cobham had lied to save himself: “Cobham is absolutely in the King's
mercy; to excuse me cannot avail him; by accusing me he may hope
for favour.” 1 D. Jardine, Criminal Trials 435 (1832). Suspecting that
Cobham would recant, Raleigh demanded that the judges call him to
appear, arguing that “[t]he Proof of the Common Law is by witness
and jury: let Cobham be here, let him speak it. Call my accuser
before my face . . . .” The judges refused, and, despite Raleigh's
protestations that he was being tried “by the Spanish Inquisition,” the
jury convicted, and Raleigh was sentenced to death.
One of Raleigh's trial judges later lamented that “ 'the justice of
England has never been so degraded and injured as by the
condemnation of Sir Walter Raleigh.' ” Through a series of statutory
and judicial reforms, English law developed a right of confrontation
that limited these abuses. For example, treason statutes required
witnesses to confront the accused “face to face” at his arraignment.
Courts, meanwhile, developed relatively strict rules of unavailability,
admitting examinations only if the witness was demonstrably unable
to testify in person. Several authorities also stated that a suspect's
confession could be admitted only against himself, and not against
others he implicated.
One recurring question was whether the admissibility of an
unavailable witness's pretrial examination depended on whether the
defendant had had an opportunity to cross-examine him. In 1696, the
Court of King's Bench answered this question in the affirmative, in the
widely reported misdemeanor libel case of King v. Paine. The court
ruled that, even though a witness was dead, his examination was not
admissible where “the defendant not being present when [it was]
taken before the mayor . . . had lost the benefit of a cross-
examination.”
Paine had settled the rule requiring a prior opportunity for cross-
examination as a matter of common law, but some doubts remained
over whether the Marian statutes prescribed an exception to it in
felony cases. The statutes did not identify the circumstances under
which examinations were admissible, and some inferred that no prior
opportunity for cross-examination was required . . . .
B
Controversial examination practices were also used in the Colonies.
Early in the 18th century, for example, the Virginia Council protested
against the Governor for having “privately issued several
commissions to examine witnesses against particular men ex parte,”
complaining that “the person accused is not admitted to be
confronted with, or defend himself against his defamers.” A decade
before the Revolution, England gave jurisdiction over Stamp Act
offenses to the admiralty courts, which followed civil-law rather than
common-law procedures and thus routinely took testimony by
deposition or private judicial examination. Colonial representatives
protested that the Act subverted their rights “by extending the
jurisdiction of the courts of admiralty beyond its ancient limits.”
Resolutions of the Stamp Act Congress §8th (Oct. 19, 1765). John
Adams, defending a merchant in a high-profile admiralty case,
argued: “Examinations of witnesses upon Interrogatories, are only by
the Civil Law. Interrogatories are unknown at common Law, and
Englishmen and common Lawyers have an aversion to them if not an
Abhorrence of them.” Draft of Argument in Sewall v. Hancock (1768-
1769).

637

Many declarations of rights adopted around the time of the

Revolution guaranteed a right of confrontation. The proposed Federal
Constitution, however, did not. At the Massachusetts ratifying
convention, Abraham Holmes objected to this omission precisely on
the ground that it would lead to civil-law practices: “The mode of trial
is altogether indetermined; . . . whether [the defendant] is to be
allowed to confront the witnesses, and have the advantage of cross-
examination, we are not yet told . . . . [W]e shall find Congress
possessed of powers enabling them to institute judicatories little less
inauspicious than a certain tribunal in Spain, . . . the Inquisition.” 2
Debates on the Federal Constitution 110-111 (J. Elliot 2d ed. 1863).
Similarly, a prominent Antifederalist writing under the pseudonym
Federal Farmer criticized the use of “written evidence” while objecting
to the omission of a vicinage right: “Nothing can be more essential
than the cross examining [of] witnesses, and generally before the
triers of the facts in question. . . . [W]ritten evidence . . . [is] almost
useless; it must be frequently taken ex parte, and but very seldom
leads to the proper discovery of truth.” R. Lee, Letter IV by the
Federal Farmer (Oct. 15, 1787). The First Congress responded by
including the Confrontation Clause in the proposal that became the
Sixth Amendment . . . .
III
This history supports two inferences about the meaning of the Sixth
Amendment.
A
First, the principal evil at which the Confrontation Clause was directed
was the civil-law mode of criminal procedure, and particularly its use
of ex parte examinations as evidence against the accused. It was
these practices that the Crown deployed in notorious treason cases
like Raleigh's; that the Marian statutes invited; that English law's
assertion of a right to confrontation was meant to prohibit; and that
the founding-era rhetoric decried. The Sixth Amendment must be
interpreted with this focus in mind.
Accordingly, we once again reject the view that the Confrontation
Clause applies of its own force only to in-court testimony, and that its
application to out-of-court statements introduced at trial depends
upon “the law of Evidence for the time being.” 3 Wigmore §1397, at
101; accord, Dutton v. Evans, 400 U.S. 74, 94 (Harlan, J., concurring
in result). Leaving the regulation of out-of-court statements to the law
of evidence would render the Confrontation Clause powerless to
prevent even the most flagrant inquisitorial practices. Raleigh was,
after all, perfectly free to confront those who read Cobham's
confession in court.
This focus also suggests that not all hearsay implicates the Sixth
Amendment's core concerns. An off-hand, overheard remark might
be unreliable evidence and thus a good candidate for exclusion under
hearsay rules, but it bears little resemblance to the civil-law abuses
the Confrontation Clause targeted. On the other hand, ex parte
examinations might sometimes be admissible under modern hearsay
rules, but the Framers certainly would not have condoned them.
 The text of the Confrontation Clause reflects this focus. It applies to
“witnesses” against the accused—in other words, those who “bear
testimony.” 1 N. Webster, An American Dictionary of the English
Language (1828). “Testimony,” in turn, is

638

typically “[a] solemn declaration or affirmation made for the purpose

of establishing or proving some fact.” Ibid. An accuser who makes a
formal statement to government officers bears testimony in a sense
that a person who makes a casual remark to an acquaintance does
not. The constitutional text, like the history underlying the common-
law right of confrontation, thus reflects an especially acute concern
with a specific type of out-of-court statement.
Various formulations of this core class of “testimonial” statements
exist: “ex parte in-court testimony or its functional equivalent—that is,
material such as affidavits, custodial examinations, prior testimony
that the defendant was unable to cross-examine, or similar pretrial
statements that declarants would reasonably expect to be used
prosecutorially,” Brief for Petitioner 23; “extrajudicial statements . . .
contained in formalized testimonial materials, such as affidavits,
depositions, prior testimony, or confessions,” White v. Illinois, 502
U.S. 346 (1992) (Thomas, J., joined by Scalia, J., concurring in part
and concurring in judgment); “statements that were made under
circumstances which would lead an objective witness reasonably to
believe that the statement would be available for use at a later trial,”
Brief for National Association of Criminal Defense Lawyers et al. as
Amici Curiae 3. These formulations all share a common nucleus and
then define the Clause's coverage at various levels of abstraction
around it. Regardless of the precise articulation, some statements
qualify under any definition—for example, ex parte testimony at a
preliminary hearing.
Statements taken by police officers in the course of interrogations
are also testimonial under even a narrow standard. Police
interrogations bear a striking resemblance to examinations by justices
of the peace in England. The statements are not sworn testimony, but
the absence of oath was not dispositive. Cobham's examination was
unsworn, see 1 Jardine, Criminal Trials, at 430, yet Raleigh's trial has
long been thought a paradigmatic confrontation violation. Under the
Marian statutes, witnesses were typically put on oath, but suspects
were not. Yet Hawkins and others went out of their way to caution that
such unsworn confessions were not admissible against anyone but
the confessor.
That interrogators are police officers rather than magistrates does
not change the picture either. Justices of the peace conducting
examinations under the Marian statutes were not magistrates as we
understand that office today, but had an essentially investigative and
prosecutorial function. England did not have a professional police
force until the 19th century, so it is not surprising that other
government officers performed the investigative functions now
associated primarily with the police. The involvement of government
officers in the production of testimonial evidence presents the same
risk, whether the officers are police or justices of the peace.
In sum, even if the Sixth Amendment is not solely concerned with
testimonial hearsay, that is its primary object, and interrogations by
law enforcement officers fall squarely within that class.11

639
B
The historical record also supports a second proposition: that the
Framers would not have allowed admission of testimonial statements
of a witness who did not appear at trial unless he was unavailable to
testify, and the defendant had had a prior opportunity for cross-
examination. The text of the Sixth Amendment does not suggest any
open-ended exceptions from the confrontation requirement to be
developed by the courts. Rather, the “right . . . to be confronted with
the witnesses against him,” Amdt. 6, is most naturally read as a
reference to the right of confrontation at common law, admitting only
those exceptions established at the time of the founding. As the
English authorities above reveal, the common law in 1791
conditioned admissibility of an absent witness's examination on
unavailability and a prior opportunity to cross-examine. The Sixth
Amendment therefore incorporates those limitations. The numerous
early state decisions applying the same test confirm that these
principles were received as part of the common law in this country.12
[This] is not to deny, as the Chief Justice notes, that “[t]here were
always exceptions to the general rule of exclusion” of hearsay
evidence. Several had become well established by 1791. See 3
Wigmore §1397, at 101. But there is scant evidence that exceptions
were invoked to admit testimonial statements against the accused in
a criminal case.13 Most of the hearsay exceptions covered
statements that by their nature were not testimonial-for example,
business records or statements in furtherance of a conspiracy. We do
not infer from these that the Framers thought exceptions would apply
even to prior testimony. Cf. Lilly v. Virginia, 527 U.S. 116 (1999)
(plurality opinion) (“[A]ccomplices' confessions that inculpate a
criminal defendant are not within a firmly rooted exception to the
hearsay rule.”).14
IV
...
Our cases have . . . remained faithful to the Framers'
understanding: Testimonial statements of witnesses absent from trial
have been admitted only where the declarant is unavailable, and only
where the defendant has had a prior opportunity to cross-examine.15

640

V
Although the results of our decisions have generally been faithful to
the original meaning of the Confrontation Clause, the same cannot be
said of our rationales. Roberts conditions the admissibility of all
hearsay evidence on whether it falls under a “firmly rooted hearsay
exception” or bears “particularized guarantees of trustworthiness.”
448 U.S., at 66. This test departs from the historical principles
identified above in two respects. First, it is too broad: It applies the
same mode of analysis whether or not the hearsay consists of ex
parte testimony. This often results in close constitutional scrutiny in
cases that are far removed from the core concerns of the Clause. At
the same time, however, the test is too narrow: It admits statements
that do consist of ex parte testimony upon a mere finding of reliability.
This malleable standard often fails to protect against paradigmatic
confrontation violations.
Members of this Court and academics have suggested that we
revise our doctrine to reflect more accurately the original
understanding of the Clause. They offer two proposals: First, that we
apply the Confrontation Clause only to testimonial statements,
leaving the remainder to regulation by hearsay law—thus eliminating
the overbreadth referred to above. Second, that we impose an
absolute bar to statements that are testimonial, absent a prior
opportunity to cross-examine—thus eliminating the excessive
narrowness referred to above.
In White, we considered the first proposal and rejected it. Although
our analysis in this case casts doubt on that holding, we need not
definitively resolve whether it survives our decision today, because
Sylvia Crawford's statement is testimonial under any definition. This
case does, however, squarely implicate the second proposal.
A
Where testimonial statements are involved, we do not think the
Framers meant to leave the Sixth Amendment's protection to the
vagaries of the rules of evidence, much less to amorphous notions of
“reliability.” Certainly none of the authorities discussed above
acknowledges any general reliability exception to the common-law
rule. Admitting statements deemed reliable by a judge is
fundamentally at odds with the right of confrontation. To be sure, the
Clause's ultimate goal is to ensure reliability of evidence, but it is a
procedural rather than a substantive guarantee. It commands, not
that evidence be reliable, but that reliability be assessed in a
particular manner: by testing in the crucible of cross-examination. The
Clause thus reflects a judgment, not only about the desirability of
reliable evidence (a point on which there could be little dissent), but
about how reliability can best be determined. Cf. 3 Blackstone,
Commentaries, at 373 (“This open examination of witnesses . . . is
much more conducive to the clearing up of truth”); M. Hale, History
and Analysis of the Common Law of England 258 (1713) (adversarial
testing “beats and bolts out the Truth much better”).
The Roberts test allows a jury to hear evidence, untested by the
adversary process, based on a mere judicial determination of
reliability. It thus replaces the constitutionally prescribed method of
assessing reliability with a wholly foreign one. In this

641

respect, it is very different from exceptions to the Confrontation

Clause that make no claim to be a surrogate means of assessing
reliability. For example, the rule of forfeiture by wrongdoing (which we
accept) extinguishes confrontation claims on essentially equitable
grounds; it does not purport to be an alternative means of
determining reliability. See Reynolds v. United States, 98 U.S. 145,
158-159.
The Raleigh trial itself involved the very sorts of reliability
determinations that Roberts authorizes. In the face of Raleigh's
repeated demands for confrontation, the prosecution responded with
many of the arguments a court applying Roberts might invoke today:
that Cobham's statements were self-inculpatory, that they were not
made in the heat of passion, and that they were not “extracted from
[him] upon any hopes or promise of Pardon.” It is not plausible that
the Framers' only objection to the trial was that Raleigh's judges did
not properly weigh these factors before sentencing him to death.
Rather, the problem was that the judges refused to allow Raleigh to
confront Cobham in court, where he could cross-examine him and try
to expose his accusation as a lie.
Dispensing with confrontation because testimony is obviously
reliable is akin to dispensing with jury trial because a defendant is
obviously guilty. This is not what the Sixth Amendment prescribes.
B
The legacy of Roberts in other courts vindicates the Framers' wisdom
in rejecting a general reliability exception. The framework is so
unpredictable that it fails to provide meaningful protection from even
core confrontation violations. Reliability is an amorphous, if not
entirely subjective, concept.
...
The unpardonable vice of the Roberts test, however, is not its
unpredictability, but its demonstrated capacity to admit core
testimonial statements that the Confrontation Clause plainly meant to
exclude. Despite the plurality's speculation in Lilly, 527 U.S., at 137,
that it was “highly unlikely” that accomplice confessions implicating
the accused could survive Roberts, courts continue routinely to admit
them. One recent study found that, after Lilly, appellate courts
admitted accomplice statements to the authorities in 25 out of 70
cases—more than one-third of the time. Kirst, Appellate Court
Answers to the Confrontation Questions in Lilly v. Virginia, 53
Syracuse L. Rev. 87, 105 (2003). Courts have invoked Roberts to
admit other sorts of plainly testimonial statements despite the
absence of any opportunity to cross-examine. See[, e.g.,] United
States v. Aguilar, 295 F.3d 1018, 1021-1023 (CA9 2002) (plea
allocution showing existence of a conspiracy); United States v.
Papajohn, 212 F.3d 1112, 1118-1120 (CA8 2000) (grand jury
testimony).
To add insult to injury, some of the courts that admit untested
testimonial statements find reliability in the very factors that make the
statements testimonial. As noted earlier, one court relied on the fact
that the witness's statement was made to police while in custody on
pending charges—the theory being that this made the statement
more clearly against penal interest and thus more reliable. Other
courts routinely rely on the fact that a prior statement is given under
oath in judicial proceedings, [e.g.,

642

plea allocution, grand jury testimony]. That inculpating statements

are given in a testimonial setting is not an antidote to the
confrontation problem, but rather the trigger that makes the Clause's
demands most urgent. It is not enough to point out that most of the
usual safeguards of the adversary process attend the statement,
when the single safeguard missing is the one the Confrontation
Clause demands.
C
Roberts' failings were on full display in the proceedings below. [The
Court recounted the lower courts' reliance on conflicting factors
indicating that Sylvia Crawford's recorded statement was both
seemingly unreliable and reliable as an example of Roberts's
“unpredictable and inconsistent application.”]
...
We readily concede that we could resolve this case by simply
reweighing the “reliability factors” under Roberts and finding that
Sylvia Crawford's statement falls short. But we view this as one of
those rare cases in which the result below is so improbable that it
reveals a fundamental failure on our part to interpret the Constitution
in a way that secures its intended constraint on judicial discretion.
Moreover, to reverse the Washington Supreme Court's decision after
conducting our own reliability analysis would perpetuate, not avoid,
what the Sixth Amendment condemns. The Constitution prescribes a
procedure for determining the reliability of testimony in criminal trials,
and we, no less than the state courts, lack authority to replace it with
one of our own devising.
We have no doubt that the courts below were acting in utmost good
faith when they found reliability. The Framers, however, would not
have been content to indulge this assumption. They knew that
judges, like other government officers, could not always be trusted to
safeguard the rights of the people; the likes of the dread Lord Jeffreys
were not yet too distant a memory. They were loath to leave too much
discretion in judicial hands. Cf. U.S. Const., Amdt. 6 (criminal jury
trial); Amdt. 7 (civil jury trial). By replacing categorical constitutional
guarantees with open-ended balancing tests, we do violence to their
design. Vague standards are manipulable, and, while that might be a
small concern in run-of-the-mill assault prosecutions like this one, the
Framers had an eye toward politically charged cases like Raleigh's—
great state trials where the impartiality of even those at the highest
levels of the judiciary might not be so clear. It is difficult to imagine
Roberts providing any meaningful protection in those circumstances.
...
Where nontestimonial hearsay is at issue, it is wholly consistent
with the Framers' design to afford the States flexibility in their
development of hearsay law—as does Roberts, and as would an
approach that exempted such statements from Confrontation Clause
scrutiny altogether. Where testimonial evidence is at issue, however,
the Sixth Amendment demands what the common law required:
unavailability and a prior opportunity for cross-examination. We leave
for another day any effort to spell out a comprehensive definition of
“testimonial.” Whatever else the term covers, it applies at a minimum
to prior testimony at a preliminary hearing, before a grand jury, or at a

643

former trial; and to police interrogations. These are the modern

practices with closest kinship to the abuses at which the
Confrontation Clause was directed.
In this case, the State admitted Sylvia's testimonial statement
against petitioner, despite the fact that he had no opportunity to
cross-examine her. That alone is sufficient to make out a violation of
the Sixth Amendment. Roberts notwithstanding, we decline to mine
the record in search of indicia of reliability. Where testimonial
statements are at issue, the only indicium of reliability sufficient to
satisfy constitutional demands is the one the Constitution actually
prescribes: confrontation.
The judgment of the Washington Supreme Court is reversed, and
the case is remanded for further proceedings not inconsistent with
this opinion.
It is so ordered.
Chief Justice R , with whom Justice O'C joins,
concurring in the judgment.
 I dissent from the Court's decision to overrule Ohio v. Roberts[. . . . ]
It is a change of course not in the least necessary to reverse the
judgment of the Supreme Court of Washington in this case. The result
the Court reaches follows inexorably from Roberts and its progeny
without any need for overruling that line of cases. In Idaho v. Wright,
497 U.S. 805, 820-824 (1990), we held that an out-of-court statement
was not admissible simply because the truthfulness of that statement
was corroborated by other evidence at trial. [T]he Supreme Court of
Washington gave decisive weight to the “interlocking nature of the
two statements.” No re-weighing of the “reliability factors,” which is
hypothesized by the Court, is required to reverse the judgment here.
A citation to Idaho v. Wright, supra, would suffice.

KEY POINTS
1. In Crawford, the Supreme Court held that the Confrontation
Clause of the Sixth Amendment applies to the government's
use of “testimonial” hearsay statements against a criminal
defendant. The Court based its holding on what it considered
to be the core value of the Clause, which is to protect the
criminal defendant's right to cross-examination.
2. The Court did not establish a single definition of “testimonial,”
but stated three possible definitions. At its core, according to
the Court, “testimonial” means a statement made when the
declarant is acting like a witness who “bears testimony,” further
defined as a “solemn declaration or affirmation made for the
purpose of establishing or proving some fact.”
3. Testimonial hearsay statements may be admitted at trial
against a criminal defendant only if the declarant is unavailable
and the defendant has had a prior opportunity to cross-
examine the declarant. In addition, the government's use of all
hearsay statements made by a testifying witness does not
violate the defendant's confrontation right. And, admission of
nontestimonial hearsay against the defendant does not violate
that right.
644

PROBLEMS
8.78. Return to Problem 3.3, State v. Blair, at page 149. The
prosecutor seeks to admit the following out-of-court statements
by Norma. The court cites three different doctrinal definitions of
“testimonial” statements from three different sources. How do
they differ in application to Norma's statements? Do the
different tests identify different concerns about “testimonial”
statements?
(a) A friend of Norma's says that a month before the attack,
Norma told the friend, “Last week I told Jimmy that I was
going to break up with him and leave the Bay Area soon.
Jimmy was furious.”
(b) Inside the locked drawer in which police found
photographs of Norma showing severe bruising and date-
stamped July 25, 2009, a handwritten diary was also
found. On the page dated July 21, 2009, it stated: “Jimmy
beat me after an argument.”
(c) On August 1, 2009, Norma filed a formal complaint
against Blair for assault and battery at the local police
station. A week later she withdrew the complaint.
8.79. Return to Problem 8.49 on page 538. Are Mrs. D'Onofrio's
statements dur-ing the 911 call “testimonial” under Crawford?
Are her subsequent statements to the police officers
“testimonial” under Crawford? (Assume that both sets of
statements would be admissible under the hearsay rule.)

NOTES
1. The Crawford opinion suggests that statements falling within the
hearsay exceptions for dying declarations and the doctrine of
forfeiture by wrongdoing might be excepted from the ban on
testimonial statements due to their historical pedigree. Both
exceptions are discussed in Section 7 starting on page 678, infra.
2. In dicta, the Court also indicates that certain types of hearsay are
not testimonial, including business records and co-conspirators'
statements. Unless “testimonial” is given the most narrow definition of
formalized testimonial materials, this seems plainly wrong. Both types
of statements could certainly fit within the “reasonable expectations”
test. Government business records are often created just for that
purpose, as courts have had to acknowledge. See page 666, infra.
3. Note that the Supreme Court did not review the holding below
that Sylvia Crawford was unavailable due to the defendant's
invocation of the state marital privilege. Doesn't it seem a bit peculiar
to think of Mrs. Crawford as constitutionally unavailable for cross-
examination by her husband when it is her husband's choice to keep
her off the stand?
4. The new approach to confrontation announced in Crawford was
applied to cases that were currently pending in both federal and state
courts. In Whorton v. Bockting, 549 U.S. 406 (2007), the Supreme
Court decided that Crawford was not

645

a “watershed” holding that applies retroactively, meaning that it is

not applicable to pre-Crawford convictions under habeas corpus
review in federal courts. State courts, however, may choose to give
broader effect to new rules of constitutional criminal procedure. See
Danforth v. Minnesota, 552 U.S. 264 (2008).
5. The Supreme Court held in its next major Confrontation Clause
opinion, Davis v. Washington, 547 U.S. 813 (2006), that if a statement
is nontestimonial, the confrontation clause has no bearing on its
admissibility. Id. at 824.
6. One of the definitions of “testimonial” offered by the Supreme
Court was that proposed by Justices Scalia and Thomas in White v.
Illinois—“extrajudicial statements . . . contained in formalized
testimonial materials, such as affidavits, depositions, prior testimony,
or confessions,” 502 U.S. at 346. And in Crawford itself, the majority
concluded its opinion by stating that, at a minimum, “testimonial”
applies to “prior testimony at a preliminary hearing, before a grand
jury, or at a former trial; and to police interrogations.” 541 U.S. at 68.
Courts have readily adopted these categories. United States v.
Bruno, 383 F.3d 65, 78 (2d Cir. 2004) (plea allocution transcripts and
grand jury testimony of unavailable witnesses are testimonial). The
Court itself applied the “formalized testimonial materials” standard in
Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009). See page
662, infra.
7. Another of the definitions of testimonial statements mentioned,
but not explicitly adopted, in Crawford was statements “made under
circumstances which would lead an objective witness reasonably to
believe that the statement would be available for use at a later trial.”
After Crawford, lower courts started to apply a similar definition,
usually using “reasonable expectations” terminology to exclude
statements they found to be testimonial. United States v. Cromer, 389
F.3d 662, 674-678 (6th Cir. 2004) (statements given by confidential
informants to police that implicated others in criminal activities);
United States v. Summers, 414 F.3d 1287, 1302 (10th Cir. 2005)
(statement by declarant in custody but not during interrogation);
United States v. Hinton, 423 F.3d 355, 360 (3d Cir. 2005) (victim
made identification while riding in police car).

3. The Definition of “Testimonial” Statements After Crawford:

Statements Made During Questioning by Police
Many police interrogations are like that of Mrs. Crawford. They are
formal, recorded, consist of structured questions, and have a law
enforcement purpose. Such interrogations lie at the core of concern
about a defendant's confrontation right. But a difference of opinion
quickly emerged after Crawford as to how broadly this core concern
extends. Some courts defined “interrogation” to include most
statements made in response to police questions. Other courts held
that responses to initial police inquiries at a crime scene are typically
not testimonial. In 2006, the Supreme Court addressed this split of
opinion in two companion cases, Davis v. Washington and Hammon
v. Indiana.

646
a. The “Primary Purpose” Test: Davis v. Washington

DAVIS V. WASHINGTON, HAMMON V. INDIANA

547 U.S. 813 (2006)

Justice S delivered the opinion of the Court, in which
R , C.J., S , K , S , G , B ,
and A , JJ., joined. T , J., filed an opinion concurring in the
judgment in part and dissenting in part.
These cases require us to determine when statements made to law
enforcement personnel during a 911 call or at a crime scene are
“testimonial” and thus subject to the requirements of the Sixth
Amendment's Confrontation Clause.
I
A
The relevant statements in Davis v. Washington, No. 05-5224, were
made to a 911 emergency operator on February 1, 2001. When the
operator answered the initial call, the connection terminated before
anyone spoke. She reversed the call, and Michelle McCottry
answered. In the ensuing conversation, the operator ascertained that
McCottry was involved in a domestic disturbance with her former
boyfriend Adrian Davis, the petitioner in this case:
“911 Operator: Hello.
“Complainant: Hello.
“911 Operator: What's going on?
“Complainant: He's here jumpin' on me again.
“911 Operator: Okay. Listen to me carefully. Are you in a house or
an apartment?
“Complainant: I'm in a house.
 “911 Operator: Are there any weapons?
“Complainant: No. He's usin' his fists.
“911 Operator: Okay. Has he been drinking?
“Complainant: No.
“911 Operator: Okay, sweetie. I've got help started. Stay on the
line with me, okay?
“Complainant: I'm on the line.
“911 Operator: Listen to me carefully. Do you know his last
name?
“Complainant: It's Davis.
“911 Operator: Davis? Okay, what's his first name?
“Complainant: Adran.
“911 Operator: What is it?
“Complainant: Adrian.
“911 Operator: Adrian?
“Complainant: Yeah.
“911 Operator: Okay. What's his middle initial?
“Complainant: Martell. He's runnin' now.”
As the conversation continued, the operator learned that Davis had
“just run out the door” after hitting McCottry, and that he was leaving
in a car with someone else.

647

McCottry started talking, but the operator cut her off, saying, “Stop
talking and answer my questions.” She then gathered more
information about Davis (including his birthday), and learned that
Davis had told McCottry that his purpose in coming to the house was
“to get his stuff,” since McCottry was moving. McCottry described the
context of the assault, after which the operator told her that the police
were on their way. “They're gonna check the area for him first,” the
operator said, “and then they're gonna come talk to you.”
The police arrived within four minutes of the 911 call and observed
McCottry's shaken state, the “fresh injuries on her forearm and her
face,” and her “frantic efforts to gather her belongings and her
children so that they could leave the residence.”
 The State charged Davis with felony violation of a domestic no-
contact order. “The State's only witnesses were the two police officers
who responded to the 911 call. Both officers testified that McCottry
exhibited injuries that appeared to be recent, but neither officer could
testify as to the cause of the injuries.” McCottry presumably could
have testified as to whether Davis was her assailant, but she did not
appear. Over Davis's objection, based on the Confrontation Clause of
the Sixth Amendment, the trial court admitted the recording of her
exchange with the 911 operator, and the jury convicted him. The
Washington Court of Appeals affirmed. The Supreme Court of
Washington, with one dissenting justice, also affirmed, concluding
that the portion of the 911 conversation in which McCottry identified
Davis was not testimonial, and that if other portions of the
conversation were testimonial, admitting them was harmless beyond
a reasonable doubt.
In Hammon v. Indiana, No. 05-5705, police responded late on the
night of February 26, 2003, to a “reported domestic disturbance” at
the home of Hershel and Amy Hammon. They found Amy alone on
the front porch, appearing “ 'somewhat frightened,' ” but she told them
that “ 'nothing was the matter.' ” She gave them permission to enter
the house, where an officer saw “a gas heating unit in the corner of
the living room” that had “flames coming out of the . . . partial glass
front. There were pieces of glass on the ground in front of it and there
was flame emitting from the front of the heating unit.”
Hershel, meanwhile, was in the kitchen. He told the police “that he
and his wife had 'been in an argument' but 'everything was fine now'
and the argument 'never became physical.' ” By this point Amy had
come back inside. One of the officers remained with Hershel; the
other went to the living room to talk with Amy, and “again asked [her]
what had occurred.” Hershel made several attempts to participate in
Amy's conversation with the police, but was rebuffed. The officer later
testified that Hershel “became angry when I insisted that [he] stay
separated from Mrs. Hammon so that we can investigate what had
happened.” After hearing Amy's account, the officer “had her fill out
and sign a battery affidavit.” Amy handwrote the following: “Broke our
Furnace & shoved me down on the floor into the broken glass. Hit me
in the chest and threw me down. Broke our lamps & phone. Tore up
my van where I couldn't leave the house. Attacked my daughter.”
The State charged Hershel with domestic battery and with violating
his probation. Amy was subpoenaed, but she did not appear at his
subsequent bench trial. The State called the officer who had
questioned Amy, and asked him to recount what Amy told him and to
authenticate the affidavit. Hershel's counsel repeatedly objected to

648

the admission of this evidence. At one point, after hearing the

prosecutor defend the affidavit because it was made “under oath,”
defense counsel said, “That doesn't give us the opportunity to cross
examine [the] person who allegedly drafted it. Makes me mad.”
Nonetheless, the trial court admitted the affidavit as a “present sense
impression,” and Amy's statements as “excited utterances” that “are
expressly permitted in these kinds of cases even if the declarant is
not available to testify.” The officer thus testified that Amy
“informed me that she and Hershel had been in an argument. That he became irrate
[sic] over the fact of their daughter going to a boyfriend's house. The argument became .
. . physical after being verbal and she informed me that Mr. Hammon, during the verbal
part of the argument was breaking things in the living room and I believe she stated he
broke the phone, broke the lamp, broke the front of the heater. When it became physical
he threw her down into the glass of the heater. . . . She informed me Mr. Hammon had
pushed her onto the ground, had shoved her head into the broken glass of the heater
and that he had punched her in the chest twice I believe.”
The trial judge found Hershel guilty on both charges, and the Indiana
Court of Appeals affirmed in relevant part. The Indiana Supreme
Court also affirmed, concluding that Amy's statement was admissible
for state-law purposes as an excited utterance; that “a 'testimonial'
statement is one given or taken in significant part for purposes of
preserving it for potential future use in legal proceedings,” where “the
motivations of the questioner and declarant are the central concerns”;
and that Amy's oral statement was not “testimonial” under these
standards. It also concluded that, although the affidavit was
testimonial and thus wrongly admitted, it was harmless beyond a
reasonable doubt, largely because the trial was to the bench. We
granted certiorari.
 II
The Confrontation Clause of the Sixth Amendment provides: “In all
criminal prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him.” In Crawford v.
Washington, we held that this provision bars “admission of testimonial
statements of a witness who did not appear at trial unless he was
unavailable to testify, and the defendant had had a prior opportunity
for cross-examination.” A critical portion of this holding, and the
portion central to resolution of the two cases now before us, is the
phrase “testimonial statements. . . .”
Our opinion in Crawford set forth “various formulations” of the core
class of “ 'testimonial' ” statements. . . . Among those, we said, were
“statements taken by police officers in the course of interrogations.”
The questioning that generated the deponent's statement in Crawford
—which was made and recorded while she was in police custody,
after having been given Miranda warnings as a possible suspect
herself—“qualifies under any conceivable definition” of an
“interrogation.” We therefore did not define that term, except to say
that “we use [it] . . . in its colloquial, rather than any technical legal,
sense,” and that “one can imagine various definitions . . . , and we
need not select among them in this case.” The character of the
statements in the present cases is not as clear, and these cases
require us to determine more precisely which police interrogations
produce testimony.

649

Without attempting to produce an exhaustive classification of all

conceivable statements—or even all conceivable statements in
response to police interrogation—as either testimonial or
nontestimonial, it suffices to decide the present cases to hold as
follows: Statements are nontestimonial when made in the course of
police interrogation under circumstances objectively indicating that
the primary purpose of the interrogation is to enable police assistance
to meet an ongoing emergency. They are testimonial when the
circumstances objectively indicate that there is no such ongoing
emergency, and that the primary purpose of the interrogation is to
establish or prove past events potentially relevant to later criminal
prosecution.16
III
A
...
The question before us in Davis, then, is whether, objectively
considered, the interrogation that took place in the course of the 911
call produced testimonial statements. When we said in Crawford, that
“interrogations by law enforcement officers fall squarely within [the]
class” of testimonial hearsay, we had immediately in mind (for that
was the case before us) interrogations solely directed at establishing
the facts of a past crime, in order to identify (or provide evidence to
convict) the perpetrator. . . . A 911 call, on the other hand, and at
least the initial interrogation conducted in connection with a 911 call,
is ordinarily not designed primarily to “establish or prove” some past
fact, but to describe current circumstances requiring police
assistance.
The difference between the interrogation in Davis and the one in
Crawford is apparent on the face of things. In Davis, McCottry was
speaking about events as they were actually happening, rather than
“describing past events.” Sylvia Crawford's interrogation, on the other
hand, took place hours after the events she described had occurred.
Moreover, any reasonable listener would recognize that McCottry
(unlike Sylvia Crawford) was facing an ongoing emergency. Although
one might call 911 to provide a narrative report of a crime absent any
imminent danger, McCottry's call was plainly a call for help against a
bona fide physical threat. Third, the nature of what was asked and
answered in Davis, again viewed objectively, was such that the
elicited statements were necessary to be able to resolve the present
emergency, rather than simply to learn (as in Crawford) what had
happened in the past. That is true even of the operator's effort to
establish the identity of the assailant, so that the dispatched officers
might know whether they would be encountering a violent felon. And
finally, the difference in the level of formality between the two
interviews is striking. Crawford was responding calmly, at the station
house, to a series of questions, with the officer-interrogator taping
and making notes of her answers; McCottry's frantic answers were

650

provided over the phone, in an environment that was not tranquil, or

even (as far as any reasonable 911 operator could make out) safe.
We conclude from all this that the circumstances of McCottry's
interrogation objectively indicate its primary purpose was to enable
police assistance to meet an ongoing emergency. She simply was not
acting as a witness; she was not testifying. What she said was not “a
weaker substitute for live testimony” at trial, like Lord Cobham's
statements in Raleigh's Case . . . , or Sylvia Crawford's statement in
Crawford. In each of those cases, the ex parte actors and the
evidentiary products of the ex parte communication aligned perfectly
with their courtroom analogues. McCottry's emergency statement
does not. No “witness” goes into court to proclaim an emergency and
seek help.
...
This is not to say that a conversation which begins as an
interrogation to determine the need for emergency assistance cannot,
as the Indiana Supreme Court put it, “evolve into testimonial
statements,” once that purpose has been achieved. In this case, for
example, after the operator gained the information needed to address
the exigency of the moment, the emergency appears to have ended
(when Davis drove away from the premises). The operator then told
McCottry to be quiet, and proceeded to pose a battery of questions. It
could readily be maintained that, from that point on, McCottry's
statements were testimonial, not unlike the “structured police
questioning” that occurred in Crawford. This presents no great
problem . . . . [T]rial courts will recognize the point at which, for Sixth
Amendment purposes, statements in response to interrogations
become testimonial. Through in limine procedure, they should redact
or exclude the portions of any statement that have become
testimonial, as they do, for example, with unduly prejudicial portions
of otherwise admissible evidence. Davis's jury did not hear the
complete 911 call, although it may well have heard some testimonial
portions. We were asked to classify only McCottry's early statements
identifying Davis as her assailant, and we agree with the Washington
Supreme Court that they were not testimonial. That court also
concluded that, even if later parts of the call were testimonial, their
admission was harmless beyond a reasonable doubt. Davis does not
challenge that holding, and we therefore assume it to be correct.
B
Determining the testimonial or nontestimonial character of the
statements that were the product of the interrogation in Hammon is a
much easier task, since they were not much different from the
statements we found to be testimonial in Crawford. It is entirely clear
from the circumstances that the interrogation was part of an
investigation into possibly criminal past conduct—as, indeed, the
testifying officer expressly acknowledged. There was no emergency
in progress; the interrogating officer testified that he had heard no
arguments or crashing and saw no one throw or break anything.
When the officers first arrived, Amy told them that things were fine,
and there was no immediate threat to her person. When the officer
questioned Amy for the second time, and elicited the challenged
statements, he was not seeking to determine (as in Davis) “what is
happening,” but rather “what happened.” Objectively viewed, the
primary, if not indeed the sole, purpose of the interrogation was to
investigate a possible crime—which is, of course, precisely what the
officer should have done.

651

It is true that the Crawford interrogation was more formal. It followed

a Miranda warning, was tape-recorded, and took place at the station
house. While these features certainly strengthened the statements'
testimonial aspect—made it more objectively apparent, that is, that
the purpose of the exercise was to nail down the truth about past
criminal events—none was essential to the point. It was formal
enough that Amy's interrogation was conducted in a separate room,
away from her husband (who tried to intervene), with the officer
receiving her replies for use in his “investigation.” What we called the
“striking resemblance” of the Crawford statement to civil-law ex parte
examinations, is shared by Amy's statement here. Both declarants
were actively separated from the defendant—officers forcibly
prevented Hershel from participating in the interrogation. Both
statements deliberately recounted, in response to police questioning,
how potentially criminal past events began and progressed. And both
took place some time after the events described were over. Such
statements under official interrogation are an obvious substitute for
live testimony, because they do precisely what a witness does on
direct examination; they are inherently testimonial.
Both Indiana and the United States as amicus curiae argue that this
case should be resolved much like Davis. For the reasons we find the
comparison to Crawford compelling, we find the comparison to Davis
unpersuasive. The statements in Davis were taken when McCottry
was alone, not only unprotected by police (as Amy Hammon was
protected), but apparently in immediate danger from Davis. She was
seeking aid, not telling a story about the past. McCottry's present-
tense statements showed immediacy; Amy's narrative of past events
was delivered at some remove in time from the danger she
described. And after Amy answered the officer's questions, he had
her execute an affidavit, in order, he testified, “to establish events that
have occurred previously.”
Although we necessarily reject the Indiana Supreme Court's
implication that virtually any “initial inquiries” at the crime scene will
not be testimonial, we do not hold the opposite—that no questions at
the scene will yield nontestimonial answers. We have already
observed of domestic disputes that “officers called to investigate . . .
need to know whom they are dealing with in order to assess the
situation, the threat to their own safety, and possible danger to the
potential victim. Such exigencies may often mean that “initial
inquiries” produce nontestimonial statements. But in cases like this
one, where Amy's statements were neither a cry for help nor the
provision of information enabling officers immediately to end a
threatening situation, the fact that they were given at an alleged crime
scene and were “initial inquiries” is immaterial.17

652

IV
Respondents in both cases, joined by a number of their amici,
contend that the nature of the offenses charged in these two cases—
domestic violence—requires greater flexibility in the use of testimonial
evidence. This particular type of crime is notoriously susceptible to
intimidation or coercion of the victim to ensure that she does not
testify at trial. When this occurs, the Confrontation Clause gives the
criminal a windfall. We may not, however, vitiate constitutional
guarantees when they have the effect of allowing the guilty to go free.
But when defendants seek to undermine the judicial process by
procuring or coercing silence from witnesses and victims, the Sixth
Amendment does not require courts to acquiesce. While defendants
have no duty to assist the State in proving their guilt, they do have the
duty to refrain from acting in ways that destroy the integrity of the
criminal-trial system. We reiterate what we said in Crawford: that “the
rule of forfeiture by wrongdoing . . . extinguishes confrontation claims
on essentially equitable grounds. That is, one who obtains the
absence of a witness by wrongdoing forfeits the constitutional right to
confrontation.”
We have determined that, absent a finding of forfeiture by
wrongdoing, the Sixth Amendment operates to exclude Amy
Hammon's affidavit. The Indiana courts may (if they are asked)
determine on remand whether such a claim of forfeiture is properly
raised and, if so, whether it is meritorious.
...
We affirm the judgment of the Supreme Court of Washington in No.
05-5224. We reverse the judgment of the Supreme Court of Indiana
in No. 05-5705, and remand the case to that Court for proceedings
not inconsistent with this opinion.
It is so ordered.
 Justice T , concurring in the judgment in part and dissenting
in part.
In Crawford v. Washington, we abandoned the general reliability
inquiry we had long employed to judge the admissibility of hearsay
evidence under the Confrontation Clause, describing that inquiry as
“inherently, and therefore permanently, unpredictable.” Today, a mere
two years after the Court decided Crawford, it adopts an equally
unpredictable test, under which district courts are charged with
divining the “primary purpose” of police interrogations. Besides being
difficult for courts to apply, this test characterizes as “testimonial,” and
therefore inadmissible, evidence that bears little resemblance to what
we have recognized as the evidence targeted by the Confrontation
Clause . . . . [T]he plain terms of the “testimony” definition we
endorsed necessarily require some degree of solemnity before a
statement can be deemed “testimonial.”
This requirement of solemnity supports my view that the statements
regulated by the Confrontation Clause must include “extrajudicial
statements . . . contained in formalized testimonial materials, such as
affidavits, depositions, prior testimony, or confessions.” Affidavits,
depositions, and prior testimony are, by their very nature, taken
through a formalized process. Likewise, confessions, when extracted
by police in a formal manner, carry sufficient indicia of solemnity to
constitute formalized statements and, accordingly, bear a “striking
resemblance,” to the examinations of the accused and accusers
under the Marian statutes. . . . In Crawford, for example,

653

the interrogation was custodial, taken after warnings given pursuant

to Miranda v. Arizona. Miranda warnings, by their terms, inform a
prospective defendant that “ 'anything he says can be used against
him in a court of law.' ” This imports a solemnity to the process that is
not present in a mere conversation between a witness or suspect and
a police officer.
...
B
 ...
The Court's determination that the evidence against Hammon must
be excluded extends the Confrontation Clause far beyond the abuses
it was intended to prevent. When combined with the Court's holding
that the evidence against Davis is perfectly admissible, however, the
Court's Hammon holding also reveals the difficulty of applying the
Court's requirement that courts investigate the “primary purposes” of
the investigation. . . . [T]he fact that the officer in Hammon was
investigating Mr. Hammon's past conduct does not foreclose the
possibility that the primary purpose of his inquiry was to assess
whether Mr. Hammon constituted a continuing danger to his wife,
requiring further police presence or action. It is hardly remarkable that
Hammon did not act abusively towards his wife in the presence of the
officers, and his good judgment to refrain from criminal behavior in
the presence of police sheds little, if any, light on whether his violence
would have resumed had the police left without further questioning,
transforming what the Court dismisses as “past conduct” back into an
“ongoing emergency.” Nor does the mere fact that McCottry needed
emergency aid shed light on whether the “primary purpose” of
gathering, for example, the name of her assailant was to protect the
police, to protect the victim, or to gather information for prosecution.
In both of the cases before the Court, like many similar cases,
pronouncement of the “primary” motive behind the interrogation calls
for nothing more than a guess by courts.
II
Because the standard adopted by the Court today is neither workable
nor a targeted attempt to reach the abuses forbidden by the Clause, I
concur only in the judgment in Davis v. Washington, and respectfully
dissent from the Court's resolution of Hammon v. Indiana.

KEY POINTS
1. In cases involving statements made during the course of police
questioning, a key issue is whether the statement is made in
 which the circumstances, viewed objectively, indicate that the
primary purpose of the questioning is to enable police
assistance to meet an ongoing emergency. Such statements
are nontestimonial. Statements are testimonial when
circumstances objectively indicate that there is no ongoing
emergency or that the primary purpose of

654

the questioning is to find or prove past facts potentially relevant to

subsequent criminal prosecution.
2. Several factors bear on this objective inquiry: Is the declarant
speaking about events as they are actually happening or
describing past events? Is the declarant facing an ongoing
emergency? Is the content of the questions and answers
necessary to resolve a present emergency or simply to learn
what happened in the past? Does the extent of or level of
formality in the questioning indicate an emergency or a
structured interrogation?

PROBLEM
8.80. H.D. was convicted by a jury of possession of a firearm by a
felon pursuant to 18 U.S.C. §922(g)(1). It is undisputed that
H.D. is a “felon” under this statute. Officer Carlton testified at
trial for the prosecution as follows:
I observed the defendant on Elm Street pushing another man in a wheelchair. I
exited my squad car and headed in defendant's direction. Defendant looked at me,
took a gun from his waistband, and fled on foot. I chased him on foot and I
observed a gun in his right hand. I ran at him full speed, crashed into him, subdued
him on the ground and seized the gun. The gun was not fired.
H.D. made no objection to this testimony. However, H.D.
denies that he possessed a gun and claims that Officer Carlton
lied about the gun during his testimony. It is undisputed that
H.D. was the person chased and knocked down by Officer
 Carlton. The gun that Officer Carlton said he seized from H.D.'s
possession was not offered into evidence at trial because it
could not be located. H.D. did not testify.
The court permitted Officer Carlton to testify as follows just
prior to his statements quoted above. Does admission of this
testimony violate the confrontation clause?
I answered the phone at the police station. The caller refused to identify herself.
She spoke in a calm and quiet voice. She said: “The neighborhood bully is just
walking by on Elm Street, pushing a man in a wheelchair.” I asked her what the
problem was. She said: “I see a gun stuck into his pants.” Then she hung up. I
immediately left the station and drove my squad car to Elm Street. We have been
unable to determine who this caller was.

NOTES AND QUESTIONS

1. Does the “primary purpose” test respond to hearsay risks
generated by the conduct of police interrogators, the mental state of
the declarant, or both? Does the Court explicitly hold whose “primary
purpose” is dispositive of the status of the statement—the
interrogator's or the declarant's?

655

2. Is the distinction between statements made for the purpose “to

enable police assistance in an ongoing emergency” versus “to
establish or prove past events potentially relevant to later criminal
prosecution” a bright-line rule? Is it easy to apply or are there difficult
line-drawing questions? What about the police asking a crime victim
who is lying, bleeding, on the ground, “Who did this?” versus “Is the
person who did this still around?” What about a frightened and
emotional statement made by a woman to her best friend telling the
friend that she was violently assaulted the day before by her
boyfriend? What is her purpose in making this statement? To seek
emotional support or to create a record should anything happen to
her? Courts seem to be fairly consistent in their analysis of fact
patterns that are easily analogized to the facts in Davis/Hammon fact
patterns, whereas they are decidedly more varied when considering
fact patterns far outside the scope of 911 calls or emergency
situations involving police.
3. Although the Court's opinion contained no factual basis for
inferring that either of the defendants in Davis and Hammon had
induced the hearsay declarants not to testify in their respective cases,
the Court nevertheless closed Part IV with a discussion of the
doctrine of forfeiture by wrongdoing. This Court returned to this issue
in Giles v. California, 554 U.S. 353 (2008), as will be discussed on
page 680, infra.
4. Lower court decisions, both state and federal, have indicated a
growing consensus that statements establishing the identity of a
perpetrator when made in informal settings during the immediate
aftermath of a crime can be nontestimonial if the court finds that an
“ongoing emergency” exists. See, e.g., State v. Calhoun, 657 S.E.2d
424 (N.C. App. 2008) (finding that in an interrogation with the primary
purpose of enabling police assistance to deal with an ongoing
emergency, permissible questions may “ 'establish the identity of the
assailant, so that the dispatched officers might know whether they
would be encountering a violent felon' ”) (quoting Davis); State v.
Slater, 939 A.2d 1105 (Conn. 2008) (holding that a rape victim's
statements to bystanders who inquired about her distress were
nontestimonial because the victim “clearly was seeking aid” and the
men responded with “no indication that their primary purpose was to
do anything but aid her”).
b. The “Primary Purpose” Test: Michigan v. Bryant
In 2011, the Supreme Court decided its second case involving
statements made during police questioning. In Michigan v. Bryant,
562 U.S. 344 (2011), the Court applied the primary purpose test in a
context very different from the domestic violence situations in Davis
and Hammon. In Bryant,
Around 3:25 a.m. on April 29, 2001, Detroit, Michigan police officers responded to a
radio dispatch indicating that a man had been shot. At the scene, they found the victim,
Anthony Covington, lying on the ground next to his car in a gas station parking lot.
Covington had a gunshot wound to his abdomen, appeared to be in great pain, and
spoke with difficulty.
 The police asked him what had happened, who had shot him, and where the shooting
had occurred. . . . Covington stated that “Rick” shot him at around 3 a.m. . . . He also
indicated that he had a conversation with Bryant, whom he recognized based

656
on his voice, through the back door of Bryant's house. Covington explained that when
he turned to leave, he was shot through the door and then drove to the gas station,
where police found him.
Covington's conversation with the police ended within 5 to 10 minutes when
emergency medical services arrived. Covington was transported to a hospital and died
within hours. The police left the gas station after speaking with Covington, called for
backup, and traveled to Bryant's house. They did not find Bryant there but did find blood
and a bullet on the back porch and an apparent bullet hole in the back door. Police also
found Covington's wallet and identification outside the house. [Id. at 349-50.]
Covington's statements were admitted against the defendant Bryant
at his trial on charges of second degree murder. Bryant was
convicted, and the Michigan Court of Appeals upheld the trial court's
determination that these statements were nontestimonial, made for
the purpose of resolving an ongoing emergency. The Michigan
Supreme Court reversed, applying the Davis factors and holding that
Covington's statements were testimonial and thus, Bryant's
confrontation right had been violated:
These statements related solely to events that had occurred in the past and at a different
location. None of these statements referred to events occurring at the time the
statements were made, none alleged any ongoing threat, and none asserted the
possible presence of the alleged perpetrator. The circumstances, in our judgment,
clearly indicate that the “primary purpose” of the questioning was to establish the facts of
an event that had already occurred; the “primary purpose” was not to enable police
assistance to meet an ongoing emergency. . . . The police asked the victim what had
happened in the past, not what was currently happening. That is, the “primary purpose”
of the questions asked, and the answers given, was to enable the police to identify,
locate, and apprehend the perpetrator. [People v. Bryant, 768 N.W.2d 65 (Mich. 2009).]
The Supreme Court granted certiorari, and a five-Justice majority
held as follows:
[T]he circumstances of the interaction between Covington and the police objectively
indicate that the “primary purpose of the interrogation” was “to enable police assistance
to meet an ongoing emergency.” Davis, 547 U.S., at 822. Therefore, Covington's
identification and description of the shooter and the location of the shooting were not
testimonial statements, and their admission at Bryant's trial did not violate the
Confrontation Clause.
 The majority opinion was written by Justice Sotomayor, joined by
Chief Justice Roberts, and Justices Kennedy, Breyer, and Alito.
Justice Thomas's concurrence was grounded on the same position
he had asserted in Davis, that questioning by police lacked sufficient
formality and solemnity for Covington's statements to be considered
to be testimonial. Justices Scalia and Ginsburg filed dissenting
opinions, discussed below, and Justice Kagan took no part in the
consideration of the case. The effect of the majority view is, of course,
to permit the conviction of Bryant to stand, grounded as it was on the
hearsay statements of the deceased victim of the crime who was
never cross-examined by the defendant.
The majority opinion reviewed the Court's confrontation
jurisprudence starting with Crawford and continuing through Davis,
citing the factors that the Davis

657

Court had developed to determine the primary purpose of

statements made during police questioning. Justice Sotomayor took
issue with the Michigan Supreme Court's finding of no ongoing
emergency. The opinion found that the Michigan court had focused
too narrowly on whether there was an emergency because of an
ongoing threat to the victim, and it had ignored the ongoing threat that
an unknown shooter with a gun posed both to the police themselves
and to the public. This emergency, the Justice wrote, “stretches more
broadly” than those in Davis and Hammon. The majority opinion
continued:
We reiterate, moreover, that the existence vel non of an ongoing emergency is not the
touchstone of the testimonial inquiry; rather, the ultimate inquiry is whether the “primary
purpose of the interrogation [was] to enable police assistance to meet [the] ongoing
emergency.” Davis, 547 U.S., at 822. We turn now to that inquiry, as informed by the
circumstances of the ongoing emergency just described. The circumstances of the
encounter provide important context for understanding Covington's statements to the
police. When the police arrived at Covington's side, their first question to him was “What
happened?” Covington's response was either “Rick shot me” or “I was shot,” followed
very quickly by an identification of “Rick” as the shooter. In response to further
questions, Covington explained that the shooting occurred through the back door of
Bryant's house and provided a physical description of the shooter. When he made the
statements, Covington was lying in a gas station parking lot bleeding from a mortal
 gunshot wound to his abdomen. His answers to the police officers' questions were
punctuated with questions about when emergency medical services would arrive. He
was obviously in considerable pain and had difficulty breathing and talking. From this
description of his condition and report of his statements, we cannot say that a person in
Covington's situation would have had a “primary purpose” “to establish or prove past
events potentially relevant to later criminal prosecution.”
For their part, the police responded to a call that a man had been shot. As discussed
above, they did not know why, where, or when the shooting had occurred. Nor did they
know the location of the shooter or anything else about the circumstances in which the
crime occurred. The questions they asked—“what had happened, who had shot him,
and where the shooting occurred,”—were the exact type of questions necessary to allow
the police to “ 'assess the situation, the threat to their own safety, and possible danger to
the potential victim'”18 and to the public, including to allow them to ascertain “whether
they would be encountering a violent felon,” In other words, they solicited the information
necessary to enable them “to meet an ongoing emergency.”
Nothing in Covington's responses indicated to the police that, contrary to their
expectation upon responding to a call reporting a shooting, there was no emergency or
that a prior emergency had ended. Covington did indicate that he had been shot at
another location about 25 minutes earlier, but he did not know the location of the shooter
at the time the police arrived and, as far as we can tell from the record, he gave no
indication that the shooter, having shot at him twice, would be satisfied that

658
Covington was only wounded. In fact, Covington did not indicate any possible motive
for the shooting, and thereby gave no reason to think that the shooter would not shoot
again if he arrived on the scene. As we noted in Davis, “initial inquiries” may “often . . .
produce nontestimonial statements.” The initial inquiries in this case resulted in the type
of nontestimonial statements we contemplated in Davis.
Finally, we consider the informality of the situation and the interrogation. This situation
is more similar, though not identical, to the informal, harried 911 call in Davis than to the
structured, station-house interview in Crawford. As the officers' trial testimony reflects,
the situation was fluid and somewhat confused: the officers arrived at different times;
apparently each, upon arrival, asked Covington “what happened?”; and, contrary to the
dissent's portrayal, (opinion of Scalia, J.), they did not conduct a structured interrogation.
...
Because the circumstances of the encounter as well as the statements and actions of
Covington and the police objectively indicate that the “primary purpose of the
interrogation” was “to enable police assistance to meet an ongoing emergency,”
Covington's identification and description of the shooter and the location of the shooting
were not testimonial hearsay. The Confrontation Clause did not bar their admission at
Bryant's trial. [Id. at 374-78.]
The method of the majority deserves some further comment. The
majority employed what the opinion calls a “combined” approach to
determining the primary purpose of the police interrogation. That is, in
applying the factors outlined in Davis, a court must look to the
circumstances in which an encounter between police and declarant
occurs; the statements and actions of both the declarant and the
interrogators; the nature (content) of what was asked and answered;
acknowledge the possibility of mixed motives on the part of both
police and declarant; and not look for “purpose” by looking solely at
one participant. In short, a court must arrive at an objective
determination of the primary purpose of “the interrogation” itself by
examining its contents and the combined circumstances of the
participants.
More startling is the majority's explicit reference to the “reliability” of
statements, such as Covington's, made during ongoing emergencies:
The existence of an ongoing emergency is relevant to determining the primary purpose
of the interrogation because an emergency focuses the participants on something other
than “prov[ing] past events potentially relevant to later criminal prosecution.” Davis, 547
U.S., at 822. Rather, it focuses them on “end[ing] a threatening situation.” Id., at 832.
Implicit in Davis is the idea that because the prospect of fabrication in statements given
for the primary purpose of resolving that emergency is presumably significantly
diminished, the Confrontation Clause does not require such statements to be subject to
the crucible of cross-examination.
This logic is not unlike that justifying the excited utterance exception in hearsay law.
Statements “relating to a startling event or condition made while the declarant was under
the stress of excitement caused by the event or condition,” Fed. Rule Evid. 803(2); see
also Mich. Rule Evid. 803(2) (2010), are considered reliable because the declarant, in
the excitement, presumably cannot form a falsehood. See Idaho v. Wright, 497 U.S. 805,
820 (1990) (“The basis for the 'excited utterance' exception . . . is that such statements
are given under circumstances that eliminate the possibility of

659
fabrication, coaching, or confabulation . . . . An ongoing emergency has a similar effect
of focusing an individual's attention on responding to the emergency”).19 [Id. at 361.]
This departure from the philosophy and methodology of Crawford,
and its seeming invitation to return to the reliability rationale of
Roberts, was received with scathing criticism from Justice Scalia in
dissent:
The Court attempts to fit its resurrected interest in reliability into the Crawford
framework, but the result is incoherent. Reliability, the Court tells us, is a good indicator
of whether “a statement is . . . an out-of-court substitute for trial testimony.” That is
patently false. Reliability tells us nothing about whether a statement is testimonial.
Testimonial and nontestimonial statements alike come in varying degrees of reliability.
 An eyewitness's statements to the police after a fender-bender, for example, are both
reliable and testimonial. Statements to the police from one driver attempting to blame
the other would be similarly testimonial but rarely reliable. [Id. at 392.]
Justice Scalia's dissenting opinion finds that Covington's statements
were testimonial, and in this conclusion he was joined by Justice
Ginsburg. In Davis, the majority opinion, written by Justice Scalia, has
refused to give primacy to any one of the factors it considered in
finding “primary purpose,” including whether the purpose of the police
or the declarant counted for more. In Bryant, Justice Scalia made
clear that he believes that it is the declarant's intent and
understanding that counts:
Crawford and Davis did not address whose perspective matters—the declarant's, the
interrogator's, or both—when assessing “the primary purpose of [an] interrogation.” In
those cases the statements were testimonial from any perspective. I think the same is
true here, but because the Court picks a perspective so will I: The declarant's intent is
what counts. In-court testimony is more than a narrative of past events; it is a solemn
declaration made in the course of a criminal trial. For an out-of-court statement to qualify
as testimonial, the declarant must intend the statement to be a solemn declaration rather
than an unconsidered or offhand remark; and he must make the statement with the
understanding that it may be used to invoke the coercive machinery of the State against
the accused. See Friedman, Grappling with the Meaning of “Testimonial,” 71 Brooklyn L.
Rev. 241, 259 (2005). That is what distinguishes a narrative told to a friend over dinner
from a statement to the police. The hidden purpose of an interrogator cannot substitute
for the declarant's intentional solemnity or his understanding of how his words may be
used.
A declarant-focused inquiry is also the only inquiry that would work in every fact
pattern implicating the Confrontation Clause. The Clause applies to volunteered
testimony as well as statements solicited through police interrogation. An inquiry into an
officer's purposes would make no sense when a declarant blurts out “Rick shot me” as
soon as the officer arrives on the scene. I see no reason to adopt a different test—one

660
that accounts for an officer's intent—when the officer asks “what happened” before the
declarant makes his accusation. (This does not mean the interrogator is irrelevant. The
identity of an interrogator, and the content and tenor of his questions, can bear upon
whether a declarant intends to make a solemn statement, and envisions its use at a
criminal trial. But none of this means that the interrogator's purpose matters.) [Id. at 381-
82.]
Justice Scalia is certainly correct that the majority opinion requires
judges to conduct an open-ended inquiry into the totality of the
circumstances surrounding a police interrogation in order to
determine its “primary purpose.” This inquiry would still be framed by
the factors outlined in Davis. If conflicting purposes are inferred,
some type of “balancing test” might have to be applied to determine
primacy. To what extent “reliability” will seep into that determination
remains to be seen.

PROBLEMS
8.81. Father is charged with the crime of aggravated assault and
battery on his 15-year-old son, Joe, who suffered a slash
wound on his cheek and neck. The prosecution claims that
Father and Joe got into an argument at home; Father pushed
Joe; Joe fell onto a glass coffee table and smashed the glass
top; Father grabbed a very sharp piece of glass from the coffee
table and deliberately cut Joe. Father's defense is that Joe
accidentally fell over the glass coffee table and cut his face on
the shattered glass.
Immediately after he was injured, Joe ran out of the house. A
neighbor had heard the father and son yelling and had called
911 to report a domestic disturbance. Police Officer Mullin went
to Father's home, saw blood on the floor, and saw Father
cleaning up broken glass from the smashed coffee table top.
Father told Mullin that Joe had fallen onto the table and cut
himself, but that Joe was OK. The neighbor who called 911 told
Mullin that Joe and his father were always fighting.
One hour later, Mullin was sent to a location a mile away
where a male youth was sitting on a curb, his face slashed.
Mullin asked the youth for his name, and learned that he was
Father's son, Joe. Mullin called for emergency medical
personnel to take Joe to a hospital. Mullin then asked Joe,
“What happened between you and your father?” Joe said: “I got
into an argument with my father; he pushed me and I fell over
the coffee table. The glass top broke. My father picked up a
 piece of glass and cut me.” The emergency medical team
arrived and Mullin asked no further questions.
Joe has disappeared. If Joe is not available to testify at
Father's trial, Officer Mullin would testify as to what Joe said in
response to his question. Officer Mullin would also testify that
his own primary purpose in his questioning of Joe was to
assess whether there was an ongoing emergency in Joe's
home. Would Joe's statement to Mullin about the cause of his
injury be admissible under the Confrontation Clause?

661

8.82. Hannah owns a small accessories store on a busy shopping

street. She was robbed at gunpoint as she stood behind the
counter of her store. The robber took cash from the cash box
and her purse. Immediately after the robber left her store,
Hannah ran outside and asked a bystander to observe the
license plate number of the car that she had seen the robber
get into and start to drive away. The bystander did so, and
wrote the license number on a piece of paper. He gave the
paper to Hannah, who gave it to the investigating police officer.
The license number was registered to a car owned by
defendant. The bystander is not available to testify at
defendant's trial for the robbery of Hannah's store, and the
bystander was never cross-examined by the defendant. May
the piece of paper be admitted against the defendant?
Consider all possible objections.

NOTES AND QUESTIONS

1. The split of opinions in Bryant reveals that Justice Scalia has lost
his ability to control the implementation of the “testimonial” standard,
at least insofar as the “primary purpose” test is concerned. It would
seem that application of the multifactor “combined approach” of the
majority could lead to future differences in outcomes as well.
Remember that in Crawford the Court roundly criticized the prior
“reliability” approach to the confrontation right in Ohio v. Roberts as
amorphous, indeterminate, and unpredictable. In Bryant, hasn't the
testimonial standard revealed the same weaknesses? Justice Scalia
criticizes the combined approach of the majority on those grounds:
The only virtue of the Court's approach (if it can be misnamed a virtue) is that it leaves
judges free to reach the “fairest” result under the totality of the circumstances. If the
dastardly police trick a declarant into giving an incriminating statement against a
sympathetic defendant, a court can focus on the police's intent and declare the
statement testimonial. If the defendant “deserves” to go to jail, then a court can focus on
whatever perspective is necessary to declare damning hearsay nontestimonial. And
when all else fails, a court can mix-and-match perspectives to reach its desired
outcome. Unfortunately, under this malleable approach “the guarantee of confrontation is
no guarantee at all.” [Id. at 1170.]
2. How realistic is it to search for a “primary” purpose of police
questioning of victims at or near a potential crime scene? When
asked, police officers will tell you that they have two equally powerful
motives—to define and resolve any emergency situation and to
gather evidence for future prosecution. Is it sensible for a legal
doctrine to require courts to struggle so hard to construct an alternate
reality?

4. The Definition of “Testimonial” Statements After Crawford:

Government Forensic Reports
Application of the confrontation clause to routine governmental
reports, prepared by public employees who are not directly involved
in crime investigation and law enforcement,

662

has presented a dilemma for courts making the transition from the
“reliability” theory of Ohio v. Roberts to the “testimonial statement”
theory of Crawford. Under Roberts, routine noninvestigative factual
reports were often treated as business or public records, thus
admissible under “firmly rooted” hearsay exceptions. In addition, after
Roberts, many states enacted special legislation providing that official
reports of standardized chemical tests analyzing narcotics and other
drugs, prepared and submitted under oath by the proper
governmental analyst, were admissible as prima facie evidence of the
chemical composition of the tested substance without the testimony
of the analyst in court. See, e.g., Mass. Gen. Laws, ch. 111, §13.
Routine and regularized data collection, and the application of
standardized tests, were held to provide sufficient reliability to dispel
the need for confrontation and cross-examination of both types of
documents.
After Crawford, some courts still held that government documents
that were routine and objective cataloging of unambiguous factual
matters, not made in anticipation of litigation, were nontestimonial.
Examples include a certificate of no record (CNR), reporting that a
diligent search of appropriate records indicated no license to carry a
weapon issued to a defendant; a warrant of deportation recording that
a deportee actually left the country; raw data generated by diagnostic
machines; and even the conclusion drawn from a standardized
laboratory test despite the author's knowledge that the report would
be used by the prosecution. In June 2009, the Supreme Court
decided Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), a
case that impacted the admissibility of many types of these
governmental forensic reports.
a. Melendez-Diaz v. Massachusetts
Defendant Melendez-Diaz was charged with distributing and
trafficking in cocaine. At issue was the admissibility of three
“certificates of analysis,” which stated that the substance in the bags
found in defendant's possession was cocaine. These certificates had
been prepared pursuant to the special Massachusetts statute cited
above (Mass. Gen. Laws, ch. 111, §13), and their admission into
evidence at defendant's trial had been upheld.
Justice Scalia, writing for a five-Justice majority that included
Justices Stevens, Thomas, Souter, and Ginsburg, found these
certificates to be testimonial and held that their admission against
Melendez-Diaz was error, thus requiring reversal and remand of the
judgment against him. On this point, the majority opinion was brief.
The Sixth Amendment to the United States Constitution, made applicable to the States
via the Fourteenth Amendment, Pointer v. Texas, 380 U.S. 400, 403 (1965), provides
 that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted
with the witnesses against him.” In Crawford, after reviewing the Clause's historical
underpinnings, we held that it guarantees a defendant's right to confront those “who
'bear testimony' ” against him. 541 U.S., at 51. A witness's testimony against a
defendant is thus inadmissible unless the witness appears at trial or, if the witness is
unavailable, the defendant had a prior opportunity for cross-examination. Id., at 54.
Our opinion described the class of testimonial statements covered by the
Confrontation Clause as follows:
“Various formulations of this core class of testimonial statements exist: ex parte in-
court testimony or its functional equivalent—that is, material such as affidavits,
custodial

663
examinations, prior testimony that the defendant was unable to cross-examine, or
similar pretrial statements that declarants would reasonably expect to be used
prosecutorially; extrajudicial statements . . . contained in formalized testimonial
materials, such as affidavits, depositions, prior testimony, or confessions; statements
that were made under circumstances which would lead an objective witness
reasonably to believe that the statement would be available for use at a later trial.” Id.,
at 51-52 (internal quotation marks and citations omitted).
There is little doubt that the documents at issue in this case fall within the “core class
of testimonial statements” thus described. Our description of that category mentions
affidavits twice. See also White v. Illinois, 502 U.S. 346, 365, (1992) (Thomas, J.,
concurring in part and concurring in judgment) (“[T]he Confrontation Clause is implicated
by extrajudicial statements only insofar as they are contained in formalized testimonial
materials, such as affidavits, depositions, prior testimony, or confessions”). The
documents at issue here, while denominated by Massachusetts law “certificates,” are
quite plainly affidavits: “declaration[s] of facts written down and sworn to by the declarant
before an officer authorized to administer oaths.” Black's Law Dictionary 62 (8th ed.
2004). They are incontrovertibly a “ 'solemn declaration or affirmation made for the
purpose of establishing or proving some fact.' ” Crawford, supra, at 51 (quoting 2 N.
Webster, An American Dictionary of the English Language (1828)). The fact in question
is that the substance found in the possession of Melendez-Diaz and his codefendants
was, as the prosecution claimed, cocaine—the precise testimony the analysts would be
expected to provide if called at trial. The “certificates” are functionally identical to live, in-
court testimony, doing “precisely what a witness does on direct examination.” Davis v.
Washington, 547 U.S. 813, 830 (2006) (emphasis deleted).
Here, moreover, not only were the affidavits “ 'made under circumstances which would
lead an objective witness reasonably to believe that the statement would be available for
use at a later trial,' ” Crawford, supra, at 52, but under Massachusetts law the sole
purpose of the affidavits was to provide “prima facie evidence of the composition, quality,
and the net weight” of the analyzed substance, Mass. Gen. Laws, ch. 111, §13. We can
safely assume that the analysts were aware of the affidavits' evidentiary purpose, since
that purpose—as stated in the relevant state-law provision—was reprinted on the
affidavits themselves.
 In short, under our decision in Crawford the analysts' affidavits were testimonial
statements, and the analysts were “witnesses” for purposes of the Sixth Amendment.
Absent a showing that the analysts were unavailable to testify at trial and that petitioner
had a prior opportunity to cross-examine them, petitioner was entitled to “ 'be confronted
with' ” the analysts at trial. Crawford, supra, at 54. [557 U.S. at 309-311.]
Justice Thomas, once again, filed a short concurrence to note that his
position, advanced in his opinions since 1992, is that “the
Confrontation Clause is implicated by extrajudicial statements only
insofar as they are contained in formalized testimonial materials, such
as affidavits, depositions, prior testimony, or confessions.” He joined
the majority opinion because, in his words, the “documents at issue in
this case 'are quite plainly affidavits'. . . [that] 'fall within the core class
of testimonial statements' governed by the Confrontation Clause.”
557 U.S. at 330.
In the following excerpt from the dissent, Justice Kennedy, joined by
Justices Breyer and Alito and Chief Justice Roberts, leveled a direct
attack on Justice Scalia's formal approach to defining “testimonial
statements” in Crawford, Davis, and now Melendez-Diaz, as well as
on the majority's holding in the case, and makes a series of attacks
on the outcome of the majority opinion as well.

664
II
The Court's fundamental mistake is to read the Confrontation Clause as referring to a
kind of out-of-court statement—namely, a testimonial statement—that must be excluded
from evidence. The Clause does not refer to kinds of statements. Nor does the Clause
contain the word “testimonial.” The text, instead, refers to kinds of persons, namely, to
“witnesses against” the defendant. Laboratory analysts are not “witnesses against” the
defendant as those words would have been understood at the framing. There is simply
no authority for this position.
Instead, the Clause refers to a conventional “witness”—meaning one who witnesses
(that is, perceives) an event that gives him or her personal knowledge of some aspect of
the defendant's guilt. Both Crawford and Davis concerned just this kind of ordinary
witness—and nothing in the Confrontation Clause's text, history, or precedent justifies
the Court's decision to expand those cases.
A
The Clause states: “In all criminal prosecutions, the accused shall enjoy the right . . . to
be confronted with the witnesses against him.” U.S. Const., Amdt. 6. Though there is
“virtually no evidence of what the drafters of the Confrontation Clause intended it to
mean,”. . . it is certain the Framers did not contemplate that an analyst who conducts a
 scientific test far removed from the crime would be considered a “witnes[s] against” the
defendant.
The Framers were concerned with a typical witness—one who perceived an event that
gave rise to a personal belief in some aspect of the defendant's guilt. There is no
evidence that the Framers understood the Clause to extend to unconventional
witnesses. As discussed below, there is significant evidence to the contrary. . . . In these
circumstances, the historical evidence in support of the Court's position is “ 'too meager .
. . to form a solid basis in history, preceding and contemporaneous with the framing of
the Constitution.” . . . The Court goes dangerously wrong when it bases its constitutional
interpretation upon historical guesswork.
The infamous treason trial of Sir Walter Raleigh provides excellent examples of the
kinds of witnesses to whom the Confrontation Clause refers . . . see Crawford, 541 U.S.,
at 44-45 (Raleigh's trial informs our understanding of the Clause because it was, at the
time of the framing, one of the “most notorious instances” of the abuse of witnesses' out-
of-court statements); ante, at 9 (same). Raleigh's accusers claimed to have heard
Raleigh speak treason, so they were witnesses in the conventional sense. We should
limit the Confrontation Clause to witnesses like those in Raleigh's trial.
The Court today expands the Clause to include laboratory analysts, but analysts differ
from ordinary witnesses in at least three significant ways. First, a conventional witness
recalls events observed in the past, while an analyst's report contains near-
contemporaneous observations of the test. An observation recorded at the time it is
made is unlike the usual act of testifying. A typical witness must recall a previous event
that he or she perceived just once, and thus may have misperceived or misremembered.
But an analyst making a contemporaneous observation need not rely on memory; he or
she instead reports the observations at the time they are made. We gave this
consideration substantial weight in Davis. There, the “primary purpose” of the victim's
911 call was “to enable police assistance to meet an ongoing emergency,” rather than
“to establish or prove past events potentially relevant to later criminal prosecution.” 547
U.S., at 822,

665
827 . . . . The Court cites no authority for its holding that an observation recorded at
the time it is made is an act of “witness[ing]” for purposes of the Confrontation Clause.
Second, an analyst observes neither the crime nor any human action related to it.
Often, the analyst does not know the defendant's identity, much less have personal
knowledge of an aspect of the defendant's guilt. The analyst's distance from the crime
and the defendant, in both space and time, suggests the analyst is not a witness against
the defendant in the conventional sense.
Third, a conventional witness responds to questions under interrogation. But
laboratory tests are conducted according to scientific protocols; they are not dependent
upon or controlled by interrogation of any sort. Put differently, out-of-court statements
should only “require confrontation if they are produced by, or with the involvement of,
adversarial government officials responsible for investigating and prosecuting crime.”. . .
There is no indication that the analysts here—who work for the State Laboratory
Institute, a division of the Massachusetts Department of Public Health—were adversarial
to petitioner. Nor is there any evidence that adversarial officials played a role in
formulating the analysts' certificates.
 Rather than acknowledge that it expands the Confrontation Clause beyond
conventional witnesses, the Court relies on our recent opinions in Crawford and Davis. .
. . The Court assumes, with little analysis, that Crawford and Davis extended the Clause
to any person who makes a “testimonial” statement. But the Court's confident tone
cannot disguise the thinness of these two reeds. Neither Crawford nor Davis considered
whether the Clause extends to persons far removed from the crime who have no
connection to the defendant. Instead, those cases concerned conventional witnesses.
Davis, supra, at 826-830 (witnesses were victims of defendants' assaults); Crawford,
supra, at 38 (witness saw defendant stab victim).
It is true that Crawford and Davis employed the term “testimonial,” and thereby
suggested that any testimonial statement, by any person, no matter how distant from the
defendant and the crime, is subject to the Confrontation Clause. But that suggestion was
not part of the holding of Crawford or Davis. Those opinions used the adjective
“testimonial” to avoid the awkward phrasing required by reusing the noun “witness.” The
Court today transforms that turn of phrase into a new and sweeping legal rule, by
holding that anyone who makes a formal statement for the purpose of later prosecution
—no matter how removed from the crime—must be considered a “witness against” the
defendant. The Court cites no authority to justify this expansive new interpretation.

NOTES
1. The dissent contended that confrontation and cross-examination
are not effective ways to detect errors in scientific tests. Instead, the
dissent suggested that new tests should be conducted, or the
defendant may call his own expert “to explain to the jury the test's
flaws and the dangers of relying on it . . . ,” or the defendant may
subpoena the government's analyst himself. Moreover, according to
the dissent, defendants' objections to the results of the laboratory
tests will be “formalistic and pointless” since there are rarely (as
evidenced by the Melendez-Diaz case itself) any significant
challenges made to the accuracy of such standardized, routine
procedures.

666

The majority replied by pronouncing its view of the core concept of

the Confrontation Clause:
Converting the prosecution's duty under the Confrontation Clause into the defendant's
privilege under state law or the Compulsory Process Clause shifts the consequences of
adverse-witness no-shows from the State to the accused. More fundamentally, the
Confrontation Clause imposes a burden on the prosecution to present its witnesses, not
on the defendant to bring those adverse witnesses into court. Its value to the defendant
 is not replaced by a system in which the prosecution presents its evidence via ex parte
affidavits and waits for the defendant to subpoena the affiants if he chooses. [557 U.S.
at 324-25.]
2. Several types of government reports found to be nontestimonial
under Crawford have been reclassified by courts applying Melendez-
Diaz. Many certificates of no result (CNRs) have been found
testimonial when they “are not routinely produced in the course of
government business but are generated exclusively for use at trial.”
United States v. Martinez-Rios, 595 F.3d 581 (5th Cir. 2010). Other
more routine and objective governmental reports have been found to
be nontestimonial. United States v. Caraballo, 595 F.3d 1214 (11th
Cir. 2010) (INS forms that record biographical information required of
every entrant are nontestimonial); United States v. Mashek, 606 F.3d
922 (8th Cir. 2010) (records from local pharmacies that defendant
had made frequent pseudoephedrine purchases, purportedly used to
manufacture methamphetamine, are not testimonial).
3. Forensic reports other than drug analyses have been found
testimonial, which requires the prosecution to produce the author of
the report. Wood v. State, 299 S.W.2d 200 (Tex. Ct. App. 2009)
(autopsy report); State v. Locklear, 681 S.E.2d 293 (N.C. 2009)
(reports of nontestifying forensic pathologist and forensic dentist
identifying the remains of the victim); State v. Dilboy, 2010 WL
1541447 (N.H. 2010) (blood and urine tests); Government of Virgin
Islands v. Vicars, 340 Fed. App'x 807 (3d Cir. 2009) (physician's
report of a rape examination); Commonwealth v. Loadholt, 923
N.E.2d 1037 (Mass. 2010) (ballistics certificate stating that a weapon
was a “firearm” and that bullets were “ammunition”).
b. Bullcoming v. New Mexico
Adhering closely to Melendez-Diaz, a new five-Justice majority of
the Supreme Court held in Bullcoming v. New Mexico, 131 S. Ct.
2705 (2011), that a forensic report stating a defendant's blood alcohol
content was the testimonial statement of the analyst who had run the
underlying test and signed the report. As such, its use at trial without
the appearance of the analyst as a witness violated Bullcoming's
confrontation right. The New Mexico Supreme Court had
acknowledged that the report was testimonial, but had held that in-
court testimony from a knowledgeable laboratory official provided the
defendant with an adequate opportunity for cross-examination in
satisfaction of the Melendez-Diaz and Crawford standards.
The majority opinion, written by Justice Ginsburg and joined in its
significant holdings by Justices Scalia, Thomas, Sotomayor, and
Kagan, expressed no doubt that the analyst's certification of the test
results, written for the purpose of proving a

667

particular fact in court, was testimonial. That Justice Thomas

agreed indicates that his “solemnity” and “formality” tests were
passed despite the fact that the certification was not a sworn affidavit,
as the report in Melendez-Diaz had been. The majority noted that the
report also contained statements of the analyst about the procedures
he had followed, and that the operation of the gas chromatograph
machine generates at least some risk of human error. In footnote 6,
which Justice Thomas did not join, the opinion applied the “primary
purpose” test of Davis: “To rank as 'testimonial,' a statement must
have a 'primary purpose' of 'establish[ing] or prov[ing] past events
potentially relevant to later criminal prosecution.”
The majority further held that the testimony of the surrogate witness
could not fulfill the defendant's confrontation right for two reasons.
First, the surrogate had not supervised or observed any of the testing
involved in this case and could not have answered any questions on
cross-examination about the particular test of Bullcoming's blood
alcohol content; the surrogate could not be cross-examined on why
the missing analyst was on “unpaid leave” from his job and was not
himself testifying; and the surrogate did not assert his own
independent opinion concerning the alcohol content of Bullcoming's
blood. More importantly, the majority held, the Sixth Amendment does
not itself suggest such an open-ended exception to its terms, nor
should a court create such an exception because it believes that the
underlying “values” of the confrontation clause are fulfilled:
 [T]he Clause does not tolerate dispensing with confrontation simply because the court
believes that questioning one witness about another's testimonial statements provides a
fair enough opportunity for cross-examination. [Id. at 2716.]
The Bullcoming opinion thus puts an end to speculation about
whether the majority that followed Justice Scalia in Melendez-Diaz
would survive the retirement of Justices Stevens and Souter. The
dissenters in Melendez-Diaz dissented again, making the argument
that the analyst in this case was even less of a “witness” against the
defendant and played even less of a role in the generation of the
inculpating evidence against him than had the analysts in Melendez-
Diaz. Given the testimony of the surrogate witness concerning all of
the laboratory's protocols and procedures, the dissenters rejected the
majority's insistence that the analyst be available for cross-
examination as a “hollow formality.”

PROBLEM
8.83. Prosecution of Jones for unlawful possession of a firearm by a
convicted felon. The prosecution offers a firearm, in a plastic
bag with a tag attached to it, into evidence as an exhibit. To
admit the exhibit, the prosecution must produce evidence
sufficient to support a finding that the firearm was in the
possession of Jones.
For the prosecution, Police Officer Green testifies as follows:
On January 10, 2011, I arrested Jones in his apartment. I seized a firearm from his
jacket pocket and placed it in a plastic evidence bag with a label that I wrote

668
identifying it as the firearm seized from Jones. Later that day, I took the firearm to
the evidence storage room in the Police Department. I gave the plastic bag
containing the firearm that I seized from Jones to the custodian of the storage
room. The custodian wrote on a tag, and attached the tag on the plastic bag with
the firearm in it. It is the regular and customary practice of the evidence custodian
to fill out a property receipt for any type of evidence that is stored in the storage
room and to state the source of the evidence.
 Officer Green further testifies that she cannot identify the
firearm offered by the prosecution as the weapon she seized
from Jones. She acknowledges that the plastic bag does not
have any label on it that she wrote. However, she recognizes
the handwriting on the tag as the handwriting of the custodian.
The custodian is now deceased.
The tag on the firearm reads:
PROPERTY RECEIPT:
Firearm received from Office Green.
DATE: January 10, 2010
SIGNED: A. Adams, Custodian

Is the receipt admissible to prove that the firearm offered by

the prosecution is the firearm that Officer Green seized from
Jones? Consider all possible objections.
8.84. Prosecution of defendant for murder. The state offers a
qualified expert witness to testify to all of the following:
(1) The expert is employed by the state forensic laboratory.
She herself obtained a sample of defendant's saliva for
purposes of DNA testing. After performing the proper test
procedures (extraction, amplification, detection of genetic
type), the expert obtained a DNA profile of the defendant.
(2) The expert then performed the same proper test
procedures on a blood sample, and obtained a DNA
profile of the blood sample.
(3) According to Report A, written by a police forensic
specialist, the specialist had retrieved this blood sample
from the clothes of the murder victim and had delivered it
to the state forensic laboratory for testing.
(4) The expert then compared the DNA profile of the blood
sample to the defendant's DNA profile and declared that
they match.
Would the expert's testimony be admissible under the
Confrontation Clause? Would the police forensic specialist
have to testify? What if the DNA profile of the blood sample
had been obtained after testing at Cellmark Laboratory, a
 private testing lab? Could the expert rely on the profile obtained
by Cellmark to declare a match?

669

NOTES
1. The dissent in Bullcoming also takes aim at the overall
methodology of the Court's confrontation opinions since Crawford.
The dissent noted the “weaving in and out” of concerns for reliability
and for solemnity; the elusive distinction between a primary purpose
of proving past facts and resolving an emergency; the failure to state
a clear rule on what witnesses were required to render a scientific
report admissible; the failure to command a clear set of common
principles in applying Crawford; and in particular, the “amorphous”
and “highly context-dependent” “combined approach” of Bryant, a
majority opinion in which, it must be noted, all of the Bullcoming
dissenters had joined.
The inability of the seven Justices in the Crawford majority to agree
on a single definition of “testimonial” has led to the current state of
doctrinal complexity and disarray. Perhaps the four dissenters are
indicating that they have had enough of the definitionless limbo into
which Crawford plunged the Court. The dissenters express some
nostalgia for returning to the “basic purpose” of the confrontation
clause: “to bar admission of out-of-court statements obtained through
formal interrogation in preparation for trial” which may be unreliable,
are untested, might not have been uttered at all, and might not have
been true—a purpose that they believe did not apply to the lab report
in this case.
2. The majority and dissent also engaged in a dispute over whether
requiring the test analyst to appear in court was having disastrous
practical consequences for governments' ability to prosecute. Both
opinions cite data presented to the Court in amicus briefs, and in Part
IV of the majority opinion, joined only by Justice Scalia, Justice
Ginsburg takes note of a variety of ways in which the burden on
prosecutors is and can be reduced. 131 S. Ct. at 2717-2719.
c. Williams v. Illinois
Several days after the release of the Bullcoming opinion, the
Supreme Court granted certiorari in Illinois v. Williams, 939 N.E.2d
268 (Ill. 2010). Defendant Williams had been tried and convicted of
rape in a bench trial, and the Illinois Supreme Court had upheld the
conviction against a confrontation challenge. At trial, an expert
witness testified for the prosecution, stating her opinion that there
was a match between a DNA profile obtained from vaginal swabs
retrieved from the victim of the sexual assault and a DNA profile from
a blood sample previously obtained from the defendant Williams. The
expert witness based her opinion on in-court testimony from the state
forensic analyst who had obtained the DNA profile from the
defendant's blood sample, and on the work that a private Cellmark
lab had done in deducing a male DNA profile from the vaginal swabs.
The Cellmark lab report was not itself offered or admitted into
evidence, presumably because it would have been found
inadmissible under the Confrontation Clause holdings of Melendez-
Diaz and Bullcoming. As stated above, Rule 703 can permit an expert
to rely on inadmissible evidence as a matter of policy regarding the
proper basis for an expert opinion. But other state supreme courts
have rejected this strategy

670

as a violation of the defendant's confrontation right if the testifying

expert refers to the results of a missing analyst's tests.
Commonwealth v. Bizanowicz, 945 N.E.2d 356, 365 (Mass. 2011).
Five Justices voted to uphold the ruling of the Illinois Supreme
Court that the testimony of the prosecution's expert witness did not
violate Williams' right to confrontation. Williams v. Illinois, 132 S. Ct.
2221 (2012). However, there was no majority agreement on the
grounds for this result.
 The Plurality Opinion in Williams. Justice Alito, joined by Chief
Justice Roberts and Justices Kennedy and Breyer, found that
although the prosecution's expert witness referred to the DNA profile
obtained by Cellmark, this reference did not violate the confrontation
standard established under Crawford and its progeny. Two grounds
of analysis were relied on for this holding.
First, the plurality posed the question as set forth by Justice
Sotomayor in Bullcoming: whether an expert witness could discuss
the out-of-court statements of others if those statements themselves
were not admitted as evidence. The plurality held as follows:
When an expert testifies for the prosecution in a criminal case, the defendant has the
opportunity to cross-examine the expert about any statements that are offered for their
truth. Out-of-court statements that are related by the expert solely for the purpose of
explaining the assumptions on which that opinion rests are not offered for their truth and
thus fall outside the scope of the Confrontation Clause. Applying this rule to the present
case, we conclude that the expert's testimony did not violate the Sixth Amendment. [132
S. Ct. at 2228.]
Justice Alito premised this holding on both common law practice
and Rule 703, which permit expert witnesses to rely on facts about
which they lack personal knowledge in forming their opinions. In
addition, the Justice wrote, the Illinois and Federal Rules place no
restriction on revealing such information to the judge in a bench trial.
Most importantly, the plurality opinion justified this result by stating
that the information revealed by the prosecution's witness —that “the
matching DNA profile was 'found in semen from the vaginal swabs'”—
was not admissible for the truth of the matter asserted but for a
nonhearsay purpose.
[T]hat fact was a mere premise of the prosecutor's question, and [the expert] simply
assumed that premise to be true when she gave her answer indicating . . . a match
between the two DNA profiles. There is no reason to think that the trier of fact took [the
expert's] answer as substantive evidence to establish where the DNA profiles came
from. [132 S. Ct. at 2236.]
Justice Alito also insisted that the expert's reference to the Cellmark
report was offered
not to prove the truth of the matter asserted in the report, i.e., that the report contained
an accurate profile of the perpetrator's DNA, but only to establish that the report
contained a DNA profile that matched the DNA profile deduced from petitioner's blood.
[132 S. Ct. at 2240, emphasis added.]
These nonhearsay purposes, the plurality insisted, differentiated the
expert's reliance on the Cellmark results from the use to which the
reports admitted into evidence in

671

Melendez-Diaz and Bullcoming had been put—to prove the truth of

what they asserted. Crawford, the plurality stated, had held that the
“Confrontation Clause applies only to out-of-court statements 'use[d]
to establish[h] the truth of the matter asserted.'” 132 S. Ct. at 2240.
The second ground for the plurality's holding was that the Cellmark
report was itself not a testimonial statement under the “primary
purpose” test established in Davis v. Washington and applied in
Melendez-Diaz and Michigan v. Bryant.
It plainly was not prepared for the primary purpose of accusing a targeted individual. In
identifying the primary purpose of an out-of-court statement, we apply an objective test. .
. . We look for the primary purpose that a reasonable person would have ascribed to the
statement, taking into account all of the surrounding circumstances.
Here, the primary purpose of the Cellmark report, viewed objectively, was not to
accuse petitioner or to create evidence for use at trial. When the ISP lab sent the
sample to Cellmark, its primary purpose was to catch a dangerous rapist who was still at
large, not to obtain evidence for use against petitioner, who was neither in custody nor
under suspicion at that time. Similarly, no one at Cellmark could have possibly known
that the profile that it produced would turn out to inculpate petitioner—or for that matter,
anyone else whose DNA profile was in a law enforcement database. Under these
circumstances, there was no “prospect of fabrication” and no incentive to produce
anything other than a scientifically sound and reliable profile. [132 S. Ct. at 2243-2244.]
The plurality opinion then engaged in an almost explicit analysis of
the risk of unreliability in such lab reports, both private and
governmental, finding that risk to be very low. It further harked back to
two losing arguments in Melendez-Diaz: First, that “if DNA profiles
could not be introduced without calling the technicians who
participated in the preparation of the profile, economic pressures
would encourage prosecutors to forgo DNA testing and rely instead
on older forms of evidence, such as eyewitness identification, that are
less reliable” 132 S. Ct. 2228; Second, it opined that its holding “will
not prejudice any defendant who really wishes to probe the reliability
of the DNA testing done in a particular case because those who
participated in the testing may always be subpoenaed by the defense
and questioned at trial.” Id.
Justice Thomas's Concurrence in the Judgment. Justice
Thomas concurred in the judgment of the plurality and its holding that
there had been no confrontation violation in Williams's trial. But
Justice Thomas decried the plurality's “flawed analysis” and adhered
to his own particular definition of testimonial statements.
Justice Thomas explicitly disagreed with the plurality's nonhearsay
theory concerning the expert's reference to the Cellmark report.
In my view . . . there was no plausible reason for the introduction of Cellmark's
statements other than to establish their truth. . . . There is no meaningful distinction
between disclosing an out-of-court statement so that the factfinder may evaluate the
expert's opinion and disclosing that statement for its truth. “To use the inadmissible
information in evaluating the expert's testimony, the jury must make a preliminary
judgment about whether this information is true.” D. Kaye, D. Bernstein, & J. Mnookin,
The New Wigmore: A Treatise on Evidence: Expert Evidence §4.10.1, p. 196 (2d ed.
2011) . . . [132 S. Ct. at 2256-2257.]

672

He also explicitly rejected the plurality's “new” primary purpose test

requiring “'the primary purpose of accusing a targeted individual of
engaging in criminal conduct.' . . . That test lacks any grounding in
constitutional text, in history, or in logic.” 132 S. Ct. at 2262. However,
he then found no confrontation violation because “Cellmark's
statements lacked the requisite 'formality and solemnity' to be
considered 'testimonial.'” 132 S. Ct. at 2256. The Cellmark report
differed from the reports in Melendez-Diaz and Bullcoming, he wrote,
because they were neither attested to by the reporting analyst nor
denoted as a “certificate.” This distinction is “constitutionally
significant,” Justice Thomas believes, because “the scope of the
confrontation right is properly limited to extrajudicial statements
similar in solemnity to the Marian examination practices that the
Confrontation Clause was designed to prevent.” 132 S. Ct. 2260.
Justice Thomas, therefore, continues to insist that confrontation
analysis be limited to identifying those out-of-court statements that
are “functionally identical to live, in-court testimony, doing precisely
what a witness does on direct examination.” 132 S. Ct. at 2261, citing
Melendez-Diaz.
Justice Kagan's Dissent. Joined by Justices Scalia, Ginsburg, and
Sotomayor, Justice Kagan argued in dissent that, without cross-
examination of the Cellmark analyst who generated the DNA profile
relied on by the prosecution's expert witness, the confrontation
violation is “an open-and-shut case” under the Court's precedents.
132 S. Ct. at 2265.
The dissent first characterized the Cellmark report as identical to
the report in Bullcoming
was made to establish “some fact” in a criminal proceeding; . . . the results of forensic
testing on evidence gathered by police; .. comparable title; similarly describes the
relevant samples, test methodology and results; and likewise includes the signatures of
laboratory officials. . . . So under this Court's prior analysis, the substance of the report
could come into evidence only if Williams had a chance to cross-examine the
responsible analyst. [132 S.Ct. at 2266-2267.]
And then Justice Kagan rejected the plurality's “nonhearsay” analysis
of the use made of the Cellmark report:
[F]ive Justices agree, in two opinions reciting the same reasons, that this argument has
no merit: [The expert witness's] statements about Cellmark's report went to its truth, and
the State could not rely on her status as an expert to circumvent the Confrontation
Clause's requirements . . . [T]o determine the validity of the witness's conclusion, the
factfinder must assess the truth of the out-of-court statement on which it relies. That is
why the principal modern treatise on evidence variously calls the idea that such “basis
evidence” comes in not for its truth, but only to help the factfinder evaluate an expert's
opinion “very weak,” “factually implausible,” “nonsense,” and “sheer fiction” . . . “to
pretend that it is not being introduced for the truth of its contents strains credibility.” [132
S. Ct. at 2268-2269.]
Justice Kagan also rejected the plurality's conclusion that the
Cellmark report was not testimonial because its primary purpose was
not focused on a “targeted individual.”

673
We have previously asked whether a statement was made for the primary purpose of
establishing “past events potentially relevant to later criminal prosecution. . . .” None of
our cases has ever suggested that, in addition, the statement must be meant to accuse
a previously identified individual. [132 S. Ct. at 2274.]
The expert witness at trial had acknowledged that all reports in this case were
prepared for criminal investigation and eventual litigation. The plurality's attempt to
 characterize the Cellmark report as a response to an ongoing emergency (a rapist on
the loose) was belied by the fact that the swabs were not sent to Cellmark until nine
months following the attack.
Finally, Justice Kagan also explained why there is no good reason for
such a “targeted individual” requirement: “[The] typical problem with
laboratory analyses—and the typical focus of cross-examination—
has to do with careless or incompetent work, rather than personal
vendettas.” 132 S. Ct. at 2274. The majority in Melendez-Diaz had
also rejected a reliability justification for the admission of technical
reports, noting serious deficiencies in forensic evidence used in
criminal trials.

NOTES
1. What does the split of opinions in Williams mean for the future of
the Confrontation Clause? The four plurality Justices dissented in
Melendez-Diaz (in which they hinted at their readiness to overturn
Crawford) and seem to be committed to evading the “testimonial”
standard by all possible means. Justices Kagan and Sotomayor are
aligned with Justices Scalia and Ginsburg in adhering to Crawford.
One possibility is that Justice Thomas's views about the scope of the
Confrontation Clause (endorsed by no other Justice) will control
future outcomes, at least in cases before the Supreme Court. In other
words, Justice Thomas will join with the Williams dissenters when he
thinks there is sufficient formality or solemnity and with the plurality
when he thinks there is not. Another possibility is that Williams
provides no useful holding for lower courts beyond the particular facts
of the case. This interpretation has been adopted by the Second
Circuit. Noting that “[n]o single rationale disposing of the Williams
case enjoys the support of a majority of the Justices,” the court
explained that the opinion does not “yield a single, useful holding to
the case before us.” United States v. James, 712 F.3d 79, 95 (2d Cir.
2013). Accordingly, the Court explained that it must therefore rely on
pre-Williams precedent, including Melendenz-Diaz and Bullcoming.
 2. Courts have reached different results on whether to characterize
autopsy reports as testimonial. Compare United States v. James,
supra (holding autopsy reports are non-testimonial) with United
States v. Ignasiak, 667 F.3d 1217, 1231-1232 (11th Cir. 2011)
(holding autopsy reports are testimonial).

5. The Definition of “Testimonial” Statements after Crawford:

Statements Not Made to Law Enforcement
In Crawford and subsequent cases, the Supreme Court left open a
question that had caused considerable confusion among lowers
courts: whether, and under what

674

circumstances, statements made to persons other than law

enforcement personnel can be testimonial. The Court addressed that
issue in Ohio v. Clark, 135 S. Ct. 2173 (2015).
a. Child Statements: Ohio v. Clark
Clark involved statements by a three-year-old boy to preschool
teachers. After being questioned by a teacher about his injuries, the
boy (L.P.) made statements identifying his mother's boyfriend (the
defendant) as his abuser. The child did not testify at the defendant's
trial, after being declared incompetent to do so. The child's
statements to his teachers were admitted as evidence at trial, and the
defendant was convicted. The Ohio Supreme Court concluded that
introducing the child's statements at trial violated the Confrontation
Clause, in part, because Ohio law required mandatory reporting of
such statements to law enforcement. The United States Supreme
Court reversed, with every Justice concluding that the statements are
not testimonial. Justice Alito wrote the majority opinion for the Court.
Justice Scalia (joined by Justice Ginsburg) and Justice Thomas
concurred in the result and each wrote separate opinions.
According to the Court, statements made to persons other than law
enforcement may still be testimonial. Applying the “primary purpose”
test to the facts of this case, however, the Court held that the child's
statements are not testimonial. Justice Alito explained:
We are therefore presented with the question we have repeatedly reserved: whether
statements to persons other than law enforcement officers are subject to the
Confrontation Clause. Because at least some statements to individuals who are not law
enforcement officers could conceivably raise confrontation concerns, we decline to
adopt a categorical rule excluding them from the Sixth Amendment's reach.
Nevertheless, such statements are much less likely to be testimonial than statements to
law enforcement officers. And considering all the relevant circumstances here, L. P.'s
statements clearly were not made with the primary purpose of creating evidence for
Clark's prosecution. Thus, their introduction at trial did not violate the Confrontation
Clause.
L. P.'s statements occurred in the context of an ongoing emergency involving
suspected child abuse. When L. P.'s teachers noticed his injuries, they rightly became
worried that the 3-year-old was the victim of serious violence. Because the teachers
needed to know whether it was safe to release L. P. to his guardian at the end of the
day, they needed to determine who might be abusing the child. . . .
There is no indication that the primary purpose of the conversation was to gather
evidence for Clark's prosecution. On the contrary, it is clear that the first objective was to
protect L. P. At no point did the teachers inform L. P. that his answers would be used to
arrest or punish his abuser. L. P. never hinted that he intended his statements to be used
by the police or prosecutors. And the conversation between L. P. and his teachers was
informal and spontaneous. The teachers asked L. P. about his injuries immediately upon
discovering them, in the informal setting of a preschool lunchroom and classroom, and
they did so precisely as any concerned citizen would talk to a child who might be the
victim of abuse. This was nothing like the formalized station-house questioning in
Crawford or the police interrogation and battery affidavit in Hammon.

675
L. P.'s age fortifies our conclusion that the statements in question were not testimonial.
Statements by very young children will rarely, if ever, implicate the Confrontation Clause.
[Id. at 2181-2182.]
Justice Alito's opinion also explained that historical practices may be
relevant for determining whether a particular type of statement falls
outside the scope of the Confrontation Clause:
As a historical matter, moreover, there is strong evidence that statements made in
circumstances similar to those facing L. P. and his teachers were admissible at common
law. See Lyon & LaMagna, The History of Children's Hearsay: From Old Bailey to Post-
Davis, 82 Ind. L. J. 1029, 1030 (2007); see also id., at 1041-1044 (examining child rape
cases from 1687 to 1788); J. Langbein, The Origins of Adversary Criminal Trial 239
(2003) (“The Old Bailey” court in 18th-century London “tolerated flagrant hearsay in rape
prosecutions involving a child victim who was not competent to testify because she was
too young to appreciate the significance of her oath.”). And when 18th-century courts
excluded statements of this sort, see, e.g., King v. Brasier, 1 Leach 199, 168 Eng. Rep.
 202 (K. B. 1779), they appeared to do so because the child should have been ruled
competent to testify, not because the statements were otherwise inadmissible. See Lyon
& LaMagna, supra, at 1053-1054. It is thus highly doubtful that statements like L. P.'s
ever would have been understood to raise Confrontation Clause concerns. [Id. at 2182.]
In his concurrence, Justice Scalia argued that, with regard to
historical practices, the burden is on the prosecution to demonstrate
that a particular type of hearsay was historically admitted without
cross-examination. In his concurrence, Justice Thomas continued to
adhere to his conception of testimonial statements as requiring
sufficient formality or solemnity.

NOTES
1. In Clark, the majority stated that statements by small children will
“rarely, if ever, implicate the Confrontation Clause.” This will be true in
situations similar to the circumstances in Clark, and it may also be
true if one focuses solely on the declarant's perspective. If one
focuses on the perspective of the questioner, however, the primary
purpose of the questioning may be to generate evidence for use in a
criminal prosecution. See Paul F. Rothstein, Ambiguous-Purpose
Statements of Children and Other Victims of Abuse Under the
Confrontation Clause, 44 Sw. U. L. Rev. (2015).
2. The Court in Clark rejected the idea that the teachers' mandatory
duty to report abuse made the statements testimonial: “It is irrelevant
that the teachers' questions and their duty to report the matter had
the natural tendency to result in Clark's conviction. The statements at
issue in Davis and Bryant supported the defendants' convictions, and
the police always have an obligation to ask questions to resolve an
ongoing emergency.” What do you think of this analogy?
3. When children do testify at trial they may do so by closed circuit
television, pursuant to the narrow exception established in Maryland
v. Craig, 497 U.S. 836 (1990), to protect the physical and
psychological well-being of the child. When they

676
 do so testify, this counts as an in-court appearance for purposes of
admitting their other hearsay statements, so long as the specific
finding of necessity mandated in Craig is satisfied. United States v.
Turning Bear, 357 F.3d 730, 738 (8th Cir. 2004).
b. Medical Interviews and Examinations
Statements made to medical personnel also raise difficult questions
regarding the scope of the Confrontation Clause. When medical
interviews and examinations involve nongovernment employees,
courts have engaged in a fact-intensive analysis to determine
whether the questioning is the “functional equivalent of a police
interrogation.” See Hernandez v. State, 946 So. 2d, 1284-1285 (Fla.
App. 2007) (court applied a four-factor test that included (1) the legal
status of the examining entity as an arm of law enforcement, (2) the
involvement of law enforcement in the production of the statements,
(3) the purpose of the exam conducted by the nurse, and (4) the
absence of any ongoing emergency). In Hernandez, the court
focused on the purpose of the examiner in conducting the interview:
Ms. Shulman regularly appeared in court to give testimony about the results of the
examinations that she performed on children. She told the jury that she had been
qualified as an expert in the area of child assault medical examinations “[w]ell over a
hundred times” and had testified as an expert witness in Hillsborough, Pinellas, Pasco,
and Dade counties. Based on Ms. Shulman's background and her focus on forensic
issues, there is no doubt that Ms. Shulman reasonably expected that she would be
appearing in court to testify against Mr. Hernandez about the results of her examination
and the statements made by the child and her parents during the course of the
examination.
See also United States v. Bordeaux, 400 F.3d 548, 556 (8th Cir.
2005) (“The purpose of the interview (and by extension, the purpose
of the statements) is disputed, but the evidence requires the
conclusion that the purpose was to collect information for law
enforcement.”). Other courts have focused on the declarant's
knowledge and purpose. See, e.g., Blount v. Hardy, 337 Fed. App'x
271 (4th Cir. 2009) (holding that admission at trial of out-of-court
statements made by a three-year-old victim to therapists, where the
victim did not know or have reason to know that her statements would
be used against the defendant at trial, did not violate defendant's
Confrontation Clause rights). Courts have also recognized that
statements may have multiple purposes. In State ex rel. Juvenile
Dept. of Multnomah County v. S.P., 215 P.3d 847 (Or. 2009), the court
found that an organization whose purpose was the diagnosis and
treatment of child abuse served as a “proxy” for police, a fact that
weighed in favor of finding that the victim's statements were
testimonial. Other courts have found that statements made during
medical examinations that result in immediate treatment, without the
involvement of police, are for the primary purpose of treatment and
are nontestimonial. See, e.g., People v. Cage, 155 P.3d 205, 218-220
(Cal. 2007).
c. Other Types of Nontestimonial Hearsay
The Supreme Court asserted in Crawford that there are certain
types of hearsay statements, corresponding to specific hearsay
exceptions, that are simply not

677

testimonial “by their nature” and thus not within the scope of the
Confrontation Clause. 541 U.S. at 1367. The Court repeated this
assertion in Bryant, 562 U.S. at 362 n.9 (“Many other exceptions to
the hearsay rules . . . rest on the belief that certain statements are, by
their nature, made for a purpose other than use in a prosecution.”).
Courts have relied on this seeming “categorical” approach. For
example, statements not intended as assertions (such as questions)
may escape the definition of hearsay and thus the reach of the
confrontation clause. Other such types mentioned in Crawford and
Bryant include casual remarks to acquaintances, some business and
public records, and co-conspirator statements in furtherance of a
conspiracy.
Some lower courts have adopted a categorical approach. See, e.g.,
Doan v. Carter, 548 F.3d 449 (6th Cir. 2008) (statements of victim
about abuse to friends and family were nontestimonial); United States
v. King, 541 F.3d 1143 (5th Cir. 2008) (co-conspirator statements
made in furtherance of a conspiracy not testimonial).
6. Testimonial Statements That Satisfy the Confrontation Right
Under Crawford, testimonial statements can satisfy the confrontation
right in two ways: (1) if the declarant testifies as a witness at trial and
thus is available for cross-examination by the defendant, and (2) if the
declarant is unavailable at trial but the defendant has previously had
the opportunity to cross-examine the declarant. Existing case law has
established the parameters of these requirements, and the Court in
Crawford gave no indication that their meaning was to change.
a. The Declarant Testifies
The Supreme Court stated in Crawford that
[w]hen the declarant appears for cross-examination at trial, the Confrontation Clause
places no constraints at all on the use of his prior testimonial statements. See California
v. Green, 399 U.S. 149 (1970). The Clause does not bar admission of a statement so
long as the declarant is present at trial to defend or explain it. [541 U.S. at 59, n.9.]
The prior statements must, of course, fall within a hearsay exception;
the confrontation right may not coincide precisely with the hearsay
rule.
The issue of the adequacy of cross-examination of the declarant,
such as when the declarant is unable to recall the events that are the
subject of the hearsay statement, appears to be well settled under
United States v. Owens, 484 U.S. 554 (1988), as discussed on pages
489-90, supra. United States v. Ghilarducci, 480 F.3d 542, 549 (7th
Cir. 2007) (declarant did not claim a “total loss of memory regarding
the events”); United States v. Harty, 476 F. Supp. 2d 17, 25 (D. Mass.
2007) (witness's lack of recollection of reasons why he had selected
defendant's photograph did not violate confrontation clause); Yanez v.
Minnesota, 562 F.3d 958, 963 (8th Cir. 2009) (holding that a child
witness's faulty memory did not deprive defendant of the ability to
cross-examine where the defendant could remind the jury of the
witness's “inability to recall the abuse or any details related to the
criminal acts and thus call into question her reliability.”).

678
b. Unavailability and Prior Opportunity for Cross-examination
 The Court in Crawford stated that the Framers would not have
permitted the admission of testimonial statements unless the
declarant “was unavailable to testify and the defendant had had a
prior opportunity for cross-examination.” 541 U.S. at 57. Prior cross-
examination can thus satisfy the confrontation right, if the declarant is
unavailable at trial.
Unavailability. Typically, the federal or state requirements of
“unavailability” under the hearsay rule, such as FRE 804(a), will be
used to determine unavailability for Confrontation Clause purposes as
well, with one addition. In Barber v. Page, 390 U.S. 719 (1968), the
Supreme Court held that the Sixth Amendment requires the
prosecution to demonstrate in court that it had made a good-faith
effort to produce the hearsay declarant, even if its effort was
unsuccessful. There is also Supreme Court precedent that does not
permit the prosecution to offer a testimonial statement when the
unavailability of the declarant was caused by the prosecution's own
negligence. Motes v. United States, 178 U.S. 458, 474 (1900). The
Crawford opinion does not mention Barber or Motes, although in the
circumstances of Crawford's exercise of his spousal privilege, there
was no need to do so. State courts have help that prior standards of
good faith and reasonable diligence are still applicable after
Crawford. United States v. Tirado-Tirado, 563 F.3d 117, 120 (5th Cir.
2009).
Prior Opportunity for Cross-examination. Where the defendant
had strong motive and a full opportunity to cross-examine the
declarant at a prior trial, the requirements of Crawford have been
found to be satisfied. Romans v. Berghuis, 2007 U.S. Dist. LEXIS
88905 (E.D. Mich. 2007).
In Ohio v. Roberts, the Supreme Court approved the admission of
statements made by the declarant at a preliminary hearing when the
defendant's counsel had engaged in cross-examination. However, as
we stated on page 600, a criminal defendant may lack motivation to
cross-examine witnesses vigorously at preliminary hearings, due to
an inability to prepare adequately and a reluctance to reveal strategy.
There are also states in which preliminary hearings are truncated
proceedings, and cross-examination is fruitless because the court will
not weigh the credibility of witnesses. See People v. Fry, 92 P.3d 970
(Colo. 2004). See also Beasley v. State, 258 S.W.3d 728, 731-735
(Ark. 2007) (exclusion of testimony at bond reduction hearing where
defendant did not have strong motive to cross-examine the
witness).The Court left open the question of whether opportunity
alone, or merely cursory questioning, would satisfy the confrontation
requirement. The Court in Crawford wrote in terms of “opportunity”
but did not discuss the issue fully.

7. Exceptions to the Requirement of Confrontation

The Crawford opinion mentioned two possible exceptions to the
confrontation requirement under which testimonial statements could
be admitted. The first is an exception for dying declarations,
grounded on the historical admission of such statements

679

during the time when the right to confrontation was developed. 541
U.S. at 56, n.6. The second is an exception based on a defendant's
“forfeiture” of the right to confrontation based on wrongful conduct
that has made the declarant unavailable to testify. 541 U.S. at 62. In
Clark, the Court also reaffirmed that historical evidence indicating that
a type of statement was typically admitted without cross-examination
might create further exceptions to the confrontation requirement. 135
S. Ct. at 2180 (“the Confrontation Clause does not prohibit the
introduction of out-of-court statements that would have been
admissible in a criminal case at the time of the founding.”).
a. Dying Declarations
In Crawford, Giles, and Bryant, the Supreme Court has suggested
that dying declarations, even if testimonial, may be admitted as an
historically incorporated exception to the requirement of
confrontation. Michigan v. Bryant, 131 S. Ct. at 1151, n.1. State
supreme courts and other lower courts have admitted dying
declarations as nontestimonial. People v. D'Arcy, 226 P.3d 040, 971-
973 (Cal. 2010); Commonwealth v. Nesbitt, 829 N.E.2d 299, 309-312
(Mass. 2008); Gilmore v. Lafler, 2010 U.S. Dist. LEXIS 59488, at *26-
31 (E.D. Mich. 2010) (on habeas review, held that admitting a dying
declaration is not contrary to Supreme Court precedent).
b. Forfeiture by Wrongdoing
As explained on page 615, supra, a theory of “forfeiture” of a
defendant's confrontation right developed from the holding in United
States v. Mastrangelo, 693 F.2d 269 (2d Cir. 1982), that this right may
be waived by the defendant's misconduct in making the hearsay
declarant unavailable. The Supreme Court accepted this doctrine
explicitly in Crawford:
The rule of forfeiture by wrongdoing (which we accept) extinguishes confrontation claims
on essentially equitable grounds; it does not purport to be an alternative means of
determining reliability. [541 U.S. at 62.]
And again in Davis, the Court explicitly approved the use of this
doctrine against defendants who act “in ways that destroy the
integrity of the criminal-trial system.” See page 652, supra.
A key issue in forfeiture doctrine, however, is whether the purpose
of the defendant's wrongdoing must be to prevent the declarant from
testifying against the defendant. This requirement is explicit in the
hearsay exception for forfeiture, FRE 804(b)(6). But immediately
following Crawford, several courts held such a purpose was not
necessary to justify forfeiture of the constitutional right to
confrontation. See, e.g., United States v. Garcia-Meza, 403 F.3d 364,
370-371 (6th Cir. 2005) (holding that the motive for the defendant's
wrongdoing is irrelevant, since “the forfeiture doctrine's equitable
basis, as enunciated in Crawford, prevent[s] the defendant from
benefiting in any way from his wrongdoing . . .”).
Dispensing with the “purpose” requirement expanded forfeiture
doctrine considerably. The expanded doctrine was frequently applied
in cases involving domestic violence, such as in Garcia-Meza where
the defendant was charged with the murder

680
 of his wife. The court upheld admission of the wife's statements to
police, made after being assaulted by her husband five months
previously, that her husband was becoming violent toward her
because she had spoken to a former boyfriend. Since many victim
statements in domestic violence and child abuse cases are found to
be “testimonial” and would have been excluded under Crawford, the
forfeiture exception became an important component of these
prosecutions.
However, in Giles v. California, 554 U.S. 353 (2008), the Supreme
Court rejected this broadened interpretation of constitutional forfeiture
doctrine. In that case, Dwayne Giles was charged and tried for the
murder of his ex-girlfriend Brenda Avie. Giles claimed self-defense,
asserting that Avie was jealous and violent. On the day of her death,
she threatened him and charged at him, causing him to close his
eyes and shoot to defend himself. At trial, the prosecution introduced
statements that Avie had made to a police officer responding to a
domestic violence report three weeks earlier. Avie had accused Giles
of choking her, punching her, and threatening to kill her with a knife if
she ever cheated on him. These statements describing threats of
physical injury were admissible hearsay under a California statute.
Giles was convicted of first degree murder. On appeal, the California
Supreme Court upheld Giles's conviction. The court assumed that
Avie's statements were testimonial but held that they did not violate
the Confrontation Clause because Crawford had recognized a
doctrine of forfeiture, and that Giles's intentional act had made Avie
unavailable to testify.
The Majority Opinion in Giles. The Supreme Court granted Giles's
petition for certiorari to determine whether this broadened scope of
constitutional forfeiture doctrine was legitimate: “We held in Crawford
that the Confrontation Clause is 'most naturally read as a reference to
the right of confrontation at common law, admitting only those
exceptions established at the time of the founding . . . .' We therefore
ask whether the theory of forfeiture by wrongdoing accepted by the
California Supreme Court is a founding-era exception to the
confrontation right.” 554 U.S. at 358. The majority opinion, authored
by Justice Scalia, thus focused on whether the early common law
forfeiture doctrine had required proof that the defendant's purpose in
making a declarant unavailable was to prevent the declarant from
testifying.
The Court concluded that forfeiture doctrine required at common
law, and thus must require today, that defendant's purpose in making
a declarant unavailable was to prevent his testimony.
In sum, our interpretation of the common-law forfeiture rule is supported by (1) the most
natural reading of the language used at common law; (2) the absence of common-law
cases admitting prior statements on a forfeiture theory when the defendant had not
engaged in conduct designed to prevent a witness from testifying; (3) the common law's
uniform exclusion of unconfronted inculpatory testimony by murder victims (except
testimony given with awareness of impending death) in the innumerable cases in which
the defendant was on trial for killing the victim, but was not shown to have done so for
the purpose of preventing testimony; (4) a subsequent history in which the dissent's
broad forfeiture theory has not been applied. The first two and the last are highly
persuasive; the third is in our view conclusive. [Id. at 368.]

681

Six Justices joined in this conclusion as to the proper scope of

forfeiture doctrine. The Court vacated the judgment of the California
Supreme Court and remanded the case for further proceedings on
the question whether defendant had the requisite intent to prevent
Avie from reporting abuse or cooperating with authorities when he
killed her.
The Concurring Opinion of Justices Souter and Ginsburg.
Justices Souter and Ginsburg joined in a separate concurrence20
that agreed that the majority opinion was right about the scope of the
confrontation right at the time of the Framing and ratification of the
Sixth Amendment:
[It] was subject to exception on equitable grounds for an absent witness's prior relevant,
testimonial statement, when the defendant brought about the absence with intent to
prevent testimony. It was, and is, reasonable to place the risk of untruth in an
unconfronted, out-of-court statement on a defendant who meant to preclude the testing
that confrontation provides. [Id. at 379.]
But for Justices Souter and Ginsburg, the equitable, rather than the
historical, basis for forfeiture doctrine was primary. It was the
defendant's intent to prevent testimony that made it fair to place this
risk of unconfronted hearsay on the defendant through forfeiture of
the confrontation right. Otherwise, they seemed to say, admitting a
victim's statement in a murder trial to prove the murder solely on the
ground that the defendant probably committed the killing was too
close to “question begging”:
The only thing saving admissibility and liability determinations from question begging
would be (in a jury case) the distinct functions of judge and jury: judges would find by a
preponderance of evidence that the defendant killed (and so would admit the testimonial
statement), while the jury could so find only on proof beyond a reasonable doubt. Equity
demands something more than this near circularity before the right to confrontation is
forfeited, and more is supplied by showing intent to prevent the witness from testifying.
[Id.]

The Dissenting Opinion in Giles. Three dissenters, Justices

Breyer, Stevens, and Kennedy, argued against the majority's
conclusion on the historical record. They claimed that “the language
that courts have used in setting forth the exception is broad enough
to cover the wrongdoing in the present case (murder) and much else
besides” and that the basic equitable “purposes and objectives” of
forfeiture doctrine—to prevent the defendant from gaining an
advantage from his own evil practices—applied to Giles. Their
principle dispute with the majority focused on the element of “intent”
that had been found against Giles, which they considered sufficient to
prove that it was fair to require forfeiture of his confrontation right.
Justice Breyer's dissent strongly objected to the majority opinion's
seeming substitution of purpose or motive for the element of intent.
As to the historical record found in seventeenth-, eighteenth-, and
nineteenth-century evidence law, the dissent claimed that

682
a review of the cases set forth [by the majority] makes clear that no case limits forfeiture
to instances where the defendant's purpose or motivation is to keep the witness away. . .
. Rather . . . , the relevant cases suggest that the forfeiture rule would apply where the
witness' absence was the known consequence of the defendant's intentional wrongful
act. [Id. at 389-392.]
 NOTES AND QUESTIONS
1. Only by reading the full majority and dissenting opinions can one
appreciate the difficulty of analyzing the historical record in order to
determine the precise scope of forfeiture doctrine “at the time of the
Framing and the adoption of the Sixth Amendment.” When the
historical record is in doubt, the Justices must turn to constitutional,
evidentiary, and common law policies to interpret the confrontation
right.
2. The Giles opinions acknowledge that Crawford has a special
impact on cases involving vulnerable victims who will not or cannot
testify, or who cannot be effective as witnesses. Some commentators
believe that police practices will change to accommodate the change
in law, in particular by creating more informal questioning
opportunities that do not cry out “interrogation”; by creating more
opportunities for pretrial cross-examination in hearings or depositions;
and by working closely with fearful witnesses to enable them to
testify. Articles on the effects of Crawford on these types of cases
include Rothstein, supra, David A. Sklansky, Hearsay's Last Hurrah,
2009 Sup. Ct. Rev. 1 (2010); Robert P. Mosteller, Crawford v.
Washington: Encouraging and Ensuring the Confrontation of
Witnesses, 39 U. Rich. L. Rev. 511 (2005); Tom Lininger, Prosecuting
Batterers After Crawford, 91 Va. L. Rev. 747 (2005); Celeste E.
Byrom, The Use of the Excited Utterance Hearsay Exception in the
Prosecution of Domestic Violence Cases After Crawford v.
Washington, 23 Rev. Litig. 409 (2005).

H. REFLECTION ON THE HEARSAY RULE

Critics of the hearsay rule are plentiful. Their criticisms focus primarily
on the complexity of the categorical structure of the exemptions and
exceptions and on whether such an elaborate structure is necessary
to fulfill hearsay policy. This, in turn, raises the deeper question of
what hearsay policy should be in the context of modern litigation.

1. The Traditional Goals of Hearsay Policy

We presented the traditional formulation of the policy excluding
hearsay in Section A of this chapter: A witness's oath, demeanor, and
cross-examination are thought to reduce testimonial dangers and
make in-court testimony more reliable than out-of-court statements. A
somewhat stronger version of this policy would state that hearsay is
inherently weak evidence, that juries cannot properly evaluate it, that
verdicts

683

should not be based on hearsay, and that excluding hearsay protects

against fraudulent evidence. A thorough analysis and critique of this
traditional policy can be found in Paul S. Milich, Hearsay Antinomies:
The Case for Abolishing the Rule and Starting Over, 71 Or. L. Rev.
723 (1992).
Based on this view of the weaknesses of hearsay evidence, the two
primary justifications for admitting it through categorical exceptions
and exemptions are reliability and necessity: The goal of traditional
hearsay policy is to admit hearsay that is more reliable than run-of-
the mill hearsay, or that seems necessary to the rational resolution of
litigated disputes. This “reliability theory” of the hearsay exceptions
presumes that reliable hearsay can be identified in advance by
identifying those circumstances that may reduce some risks of
insincerity, to a lesser extent risk of loss of memory, and only
occasionally a risk of inaccurate perception.

2. The Reliability Theory Does Not Work

It is easy to criticize the reliability theory of the traditional hearsay
rule. We have done so implicitly throughout this chapter by pointing
out where the factual requirements of the categorical exceptions and
exemptions fail to fulfill their goal. Much seemingly unreliable hearsay
is admitted, and it may be that much that seems reliable is excluded.
Even the Advisory Committee's Introductory Note to Article VIII of the
Federal Rules of Evidence acknowledges these criticisms:
The solution evolved by the common law has been a general rule excluding hearsay but
subject to the numerous exceptions under circumstances supposed to furnish
 guarantees of trustworthiness. Criticisms of this scheme are that it is bulky and complex,
fails to screen good from bad hearsay realistically, and inhibits the growth of the law of
evidence.
A similar critique is found in Michael Seigel, Rationalizing Hearsay: A
Proposal for a Best Evidence Hearsay Rule, 72 B.U. L. Rev. 893,
912-913 (1992):
Sadly, our current system employs the least rational means of evaluating the reliability of
hearsay evidence: preconceived categories. Each categorical exception is theoretically
supported by an initial inductive hypothesis about human behavior that, if true, reduces
the probability that an out-of-court statement falling within the category suffers from one
of the hearsay dangers. Accordingly, any such statement is deemed reliable and,
therefore, admissible. However, even assuming the accuracy of the categories'
foundation hypotheses, an out-of-court statement's reliability is simply not measurable
through what is, in effect, an unidimensional test. A statement may be grossly unreliable
despite the fact that it falls within the bounds of a categorical exception, in light of other
information in the case. This more specific information may demonstrate that the
category's behavioral assumption is inapplicable to the particular statement at issue; or
the statement may present a danger not accounted for by the assumption underlying the
specific exception; or other more definitive evidence might make the accuracy of the
hearsay suspect. At the same time, the categorical exceptions are not comprehensively
inclusive; the facts surrounding excluded hearsay may indicate that it is reliable even
though it fails to meet the strictures of any given exception.

684

The trouble is, there is not much agreement on an alternative

approach to determining the reliability of the hearsay that should be
admitted.

3. A Rule of Discretion
One option is to change the rule to a Rule 403-type of balancing test,
whereby the trial judge would be given discretion to admit hearsay
that the judge thinks is more probative because it is more credible,
and to exclude hearsay that is less probative because less credible.
Under the categorical approach, the credibility of hearsay evidence is
not to be weighed by the judge. The advantages of a discretionary
rule were forcefully argued in Jack B. Weinstein, The Probative Force
of Hearsay, 46 Iowa L. Rev. 331 (1961). A discretionary approach
was also described, but rejected, in the Advisory Committee's
Introductory Note:
 Admissibility would be determined by weighing the probative force of the evidence
against the possibility of prejudice, waste of time, and the availability of more
satisfactory evidence. The bases of the traditional hearsay exceptions would be helpful
in assessing probative force. . . . Procedural safeguards would consist of notice of
intention to use hearsay, free comment by the judge on the weight of the evidence, and
a greater measure of authority in both trial and appellate judges to deal with evidence on
the basis of weight. The Advisory Committee has rejected this approach to hearsay as
involving too great a measure of judicial discretion, minimizing the predictability of
rulings, enhancing the difficulties of preparing for trial, adding a further element to the
already over-complicated congeries of pretrial procedures, and requiring substantially
different rules for civil and criminal cases.
According to Professor Seigel, a discretionary rule would vest
considerably more authority over the outcomes of trials in the judge:
Simply put, the power to exclude evidence is the power to determine the outcome of
cases. If truly discretionary—in other words, if not subject to appellate review—this
power is too great to vest in individual trial judges. Moreover, absent clear guidelines
defining reliable hearsay, the exclusionary process would be akin to a game of roulette.
On the other hand, imposing clear guidelines and enforcing them through appellate
review would cause the standard of reliability to evolve slowly into a set of rules. The
final outcome would be the recreation of what existed prior to codification of the rules of
evidence: an ad hoc common law hearsay regime. [Seigel, 72 B.U. L. Rev. at 914.]
Another option has been suggested by Judge Richard Posner, in a
recent concurring opinion:
What I would like to see is Rule 807 (“Residual Exception”) swallow much of Rules 801
through 806 and thus many of the exclusions from evidence, exceptions to the
exclusions, and notes of the Advisory Committee. The “hearsay rule” is too complex, as
well as being archaic. Trials would go better with a simpler rule, the core of which would
be the proposition (essentially a simplification of Rule 807) that hearsay evidence should
be admissible when it is reliable, when the jury can understand its strengths and
limitations, and when it will materially enhance the likelihood of a correct outcome.
[United States v. Boyce, 742 F.3d 792, 802 (2014) (Posner, J., concurring).]

685

4. Abolition
The more extreme option would be to abandon the search for
reliability and abolish the rule of exclusion altogether. The admission
of hearsay would be governed only by its relevance under FRE 401
and its risks of FRE 403 dangers, which should not include concerns
about the credibility of the declarant. Under a truly abolitionist regime,
exclusion would depend solely on the judge's estimation of Rule 403
dangers that might negatively affect the jury's ability to evaluate the
credibility of hearsay.
What might be the consequences of an abolitionist regime? An
article by Professor Eleanor Swift, Abolishing the Hearsay Rule, 75
Cal. L. Rev. 495 (1987), predicted that potentially admissible hearsay
would raise three kinds of problems: (1) statements by unidentified
persons about whom very little is known, so that the jury has little
factual basis on which to apply its own general knowledge and
experience; (2) statements that bear obvious risks, in particular a
declarant's motive to misrepresent, requiring the jury to make hard
choices between conflicting inferences; and (3) statements presented
in documentary form without any witness to supply information about
them, thus permitting the proponent to avoid presenting either the
declarant or a foundation witness for cross-examination.
The Advisory Committee rejected an abolitionist regime on grounds
that it “has been unconvinced of the wisdom of abandoning the
traditional requirement of some particular assurance of credibility as a
condition precedent to admitting the hearsay declaration of an
unavailable declarant.”

5. Reformulating Hearsay Policy

a. Is There a Need for a Hearsay Rule in Modern Civil Litigation?
In his article, The Evolution of the Hearsay Rule to a Rule of
Admission, 76 Minn. L. Rev. 797, 797-801 (1992), Professor Ronald
Allen describes why the hearsay rule of exclusion is no longer
important in civil litigation due to prevalent use of discovery
depositions, party admissions, and the numerous exceptions and
exemptions. His concern is that its continued existence imposes too
great a cost:
My instinct is that . . . [g]iven all the inroads into the rule, it no longer can seriously be
contended that the rule contributes in any robust way to substantial justice.21 To be
sure, an occasional case will turn on hearsay, and occasionally justice might be done
because of exclusion for reason of hearsay, but against this must be balanced the
probability that without a hearsay rule the evidence would have been excluded under
some other rule, most likely relevancy. Further to be considered in the balance are
 cases of injustice resulting from the exclusion of hearsay as well as the astounding cost
of maintaining the rule.

686
The cost of maintaining the rule is not just a function of its contribution to justice. It also
includes the time spent on litigating the rule. And of course that is not just a cost
voluntarily borne by the parties, for in our system virtually all the cost of the court—
salaries, administrative costs, and capital costs—are borne by the public. As expensive
as litigation is for the parties, it is supported by an enormous public subsidy. Each time a
hearsay question is litigated, the public pays. The rule imposes other costs as well.
Enormous time is spent teaching and writing about the hearsay rule, which are both
costly enterprises. In some law schools, students spend over half their time in evidence
classes learning the intricacies of the hearsay rule, and . . . enormous academic
resources are expended on the rule.
Like other social practices, the hearsay rule should be required to pull its own freight;
only if its costs are justified should it be maintained.

b. Regulation Premised on the Excesses of the Adversary System

One justification for regulating the admission of hearsay derives
from the excesses of the adversary system of proof.
Consider for instance, the possibility that a hearsay declarant might be a bad witness, or
. . . might be shown incredible on cross-examination. A party might prefer to offer the
[hearsay statement] rather than to call the declarant to the stand. In effect, such a choice
would be a deliberate choice to mislead the factfinder, because the hearsay would not
be accompanied by information that would enable the jury to evaluate the evidence
properly. [Craig R. Callen, Foreword to the First Virtual Forum: Wallace Stevens,
Blackbirds and the Hearsay Rule, 16 Miss. Col. L. Rev. 1, 10 (1995).]
Hearsay policy could be premised on mitigating this adversarial tactic.
Professor Seigel proposes a principle for admitting hearsay only
when it is the “best evidence” available from a particular declarant
source. Seigel, 72 B.U. L. Rev. at 930-938. Professor Swift proposes
that admission of hearsay be based on the production of a foundation
witness who would be able to present information that the jury needs
to evaluate the hearsay statement. Eleanor Swift, A Foundation Fact
Approach to Hearsay, 75 Cal. L. Rev. 1339 (1987).
c. Notice-based Admission in Civil Cases: Reliance on the Adversary System
Several proposals have been made to admit hearsay more freely in
civil cases, premised on sufficient notice to the opponent. Professor
Roger Park recommends a notice-based residual exception that
makes no provision for reliability screening by judges in: A Subject
Matter Approach to Hearsay Reform, 86 Mich. L. Rev. 51 (1987). The
proponent of hearsay would state whether the declarant is available
or unavailable. Then, the opponent could demand that the declarant
be produced and examined by the proponent and be available for
cross-examination. In certain circumstances, the trial judge would be
authorized to shift costs of production to the opponent. In the view of
Professor Milich, all that is needed is notice of an intent to offer
information from a source not to be called to testify at trial. The notice
would include

687

the name and location of the source so that the opponent could
interview, depose, or produce the source if desired. Milich, 71 Or. L.
Rev. at 774-776.
d. Why Hearsay Should Be Treated Differently in Criminal Cases
The confrontation clause does place a constraint on hearsay reform
in criminal cases. Most legislators, courts, attorneys, and
commentators agree that the criminal defendant's interest in personal
liberty does weigh more heavily in favor of a requirement that the
prosecution's use of hearsay be limited. Eileen A. Scallen,
Constitutional Dimensions of Hearsay Reform: Toward a Three-
Dimensional Confrontation Clause, 76 Minn. L. Rev. 623 (1992). The
approach in Crawford is to identify what might be thought of as the
most unreliable categories of hearsay—testimonial statements—and
to exclude them unless confrontation is or has been provided. These
same risks of unreliability were identified previously by Professor
Park in recommending that a categorical approach to admitting
hearsay in criminal cases be maintained:
Generally, out-of-court statements relevant to criminal cases are made, in the broadest
sense, with a view to litigation, or at least with knowledge that the legal process may be
brought to bear on the matter being described. . . . Moreover, many of the declarants'
statements are taken by police, often under interrogation—a process essential in
producing investigative leads but not calculated to elicit spontaneous statements that
spring from a spirit of candor. [Park, A Subject Matter Approach to Hearsay, 86 Mich. L.
Rev. at 94-97, 99.]
Under Crawford, prosecutors will remain constrained in their use of
hearsay even should the hearsay rule itself be changed and further
liberalized.

6. A Rebuttal
Many of the hearsay rule's critics seem to focus on the logical and
conceptual messiness of the hearsay exceptions and exemptions.
The world of trials they seem to envision would be largely the same
with a reformed or abolished hearsay rule. Hearsay statements would
continue to represent only bits and pieces of the overall mass of
evidence offered in a trial, and the only change is that more of them
would be admitted.
But consider the following question. The hearsay rule goes hand-in-
hand with FRE 602, the firsthand knowledge requirement. How do
you enforce a firsthand knowledge requirement without a hearsay
rule? Viewed this way, the problem is not one of admitting more of the
sort of hearsay statements currently offered in trials, but rather of
replacing firsthand witnesses with hearsay declarants on a routine
basis—perhaps going so far as to entirely replace live witnesses with
paper submissions. Finding and presenting firsthand witnesses is one
of the “costs” of litigating under the hearsay rule, and parties have
strong incentives to avoid that cost.
Try to imagine on what principle you could still implement a
preference for firsthand witness testimony without a hearsay rule. You
might try to do so with some variation of the best evidence rule: A
witness with personal knowledge must be presented instead of
hearsay if that witness is reasonably available. Or rather than
categorically

688

preferring firsthand testimony, judges could require the most

probative available evidence, again under a variant of the best
evidence rule or under FRE 401/403 to enforce a broad policy of
requiring the most probative evidence. See Dale A. Nance, The Best
Evidence Principle, 73 Iowa L. Rev. 227 (1988) (advocating such a
principle). Or, as Judge Posner has proposed, FRE 807 could be
used to “swallow much of Rules 801 through 806,” to allow “reliable”
hearsay on a case-by-case basis. But then you would see parties
constantly litigating the meaning of “availability,” or “reliability,”
converting questions that might have had clear enough answers
under the hearsay rules into occasions for more extended litigation.
The additional litigation, in turn, would likely create tremendous
pressure to create a new set of various categorical convenience-and-
reliability-based exceptions—just as has happened with the hearsay
rule itself.
Arguably, all exclusionary evidence rules could be replaced by FRE
403-type discretion, not just hearsay. The problem with such ad hoc,
case-by-case approaches to admissibility is that they lack any
semblance of the regularity and predictability that the law usually
demands. Is it any less conceptually messy to bury the arguable
inconsistencies of the hearsay exceptions under the purely
discretionary approach of FRE 403? The most predictable result of
such an approach would be the reemergence of codified or common
law rules to the effect that FRE 403 requires exclusion of certain
types of evidence. (Arguably, FRE 404 is an example of this.)
Perhaps too few, or too simple, rules generate as much litigation as
too complex or too many rules: As long as there are cases and
lawyers, there will be arguments that this case is different from the
one contemplated by the general rule.

7. Conclusion
This debate over hearsay reform should convince you of at least one
thing: The general rule excluding hearsay evidence creates
significant tensions with some important values that underlie our
system of trial proof: reliance on the inferential reasoning of lay
factfinders, adversarial control of proof, and relaxed judicial control.
The hearsay rule and its exceptions are far from perfectly calibrated
to admit the most and exclude the least reliable and probative
hearsay statements. Despite the liberalization of proof under the
Federal Rules of Evidence, hearsay is treated with suspicion and
remains subject to judicial regulation.
At the same time, none of the commentators discussed above
favors total abolition of the general rule against hearsay offered
against criminal defendants, suggesting that the hearsay rule also
serves fundamental values. While the right to confront adverse
witnesses is stronger in criminal cases, and gets express
constitutional protection there, a premise of the confrontation principle
is that the presentation of live witnesses, and the ability to cross
examine them, is a fundamental part of due process of law. Consider
the difference between a witness swearing out an affidavit, putting his
signature (even under penalty of perjury) at the bottom of a document
written by a lawyer; and that same witness showing up in court,
swearing to tell the truth in the solemnity of the courtroom in front of
the judge and jury, testifying in his own words,

689

and then being tested by cross-examination. It is certainly possible

as an empirical matter that more accurate modes of factfinding are
possible; but arguably reformers bear a heavy burden of persuasion
to demonstrate that significant alteration of the hearsay rule would
serve better.

ASSESSMENTS
A-8.1. FRE 801(a)-(c). The most accurate definition of hearsay is:
A a statement made out of court by a person not testifying in court.
B an assertion made out of court by which its proponent purports to prove the truth of the
matter asserted.
C a person's out-of-court communication—verbal and nonverbal, explicit or implied—
aiming to prove the truth of the matter that the person intended to communicate.
D none of the above.
A-8.2. FRE 801(a)-(c). Witness W testified in a criminal trial that, on May 1, 2015, she saw
the defendant parking his car in a garage featuring a sign “The Main Street Garage.” This
testimony is offered to prove that the defendant was in the Main Street Garage on May 1,
2015. Not hearsay.
A-8.3. FRE 801(a)-(c). To prove that D had a motive to kill V, P calls D's friend to testify that
she heard V threatening to ruin D's business and reported to D about this threat. This
testimony is not hearsay.
A-8.4. FRE 801(a)-(c). A traveler contracts pneumonia after a three-hour bus trip through
upstate New York in January. He sues the bus company for the cost of his hospitalization,
claiming that he got sick because the driver failed to keep the bus adequately heated. The
driver testifies that two passengers took off their sweaters midway through the trip. This
testimony is hearsay.
A-8.5. FRE 801(a)-(c). To defend himself against robbery charges on the grounds of duress,
D testifies that an anonymous caller threatened to kill him if he refuses “to do the job” with
the bank robbers. D's testimony about the caller's threat is admissible hearsay.
A-8.6. FRE 801(d). To prove that Donald conspired with Edgar to kidnap Victor and demand
ransom from Victor's family, the prosecution produces a wiretapped note allegedly e-mailed
by Edgar to his girlfriend. This e-mail reads as follows: “Donald and I will soon get Victor.
Don't forget to open the bank account I told you about. E.” To make this e-mail admissible,
the prosecution only needs to properly authenticate it.
A-8.7. FRE 801(a)-(c) and the Sixth Amendment to the U.S. Constitution. In a murder
trial in which D and E appear as codefendants, the prosecution introduces E's

690
confession that also implicates D. This evidence is admissible against E alone, and the judge
must instruct the jury to ignore it in deciding whether to convict D.
A-8.8. FRE 803(1) & (2). Defendant Jack Jordan is being tried for arson as a result of a fire
that destroyed his clothing store and the apartments above it. The prosecution claims that
Jack employed his brother Mark and friend Thomas Telford to commit the deed and gave
them a key to the store, which had not been broken into. The fire was ablaze by 11:00 . .
and, apparently, Telford remained at the scene. He was told by tenants exiting the building
that there might be other people trapped inside. At 2:00 . ., Telford knocked on the window
of his friend Larry's apartment, appeared “all hyped up” and “nervous” according to Larry,
and told Larry that “Mark and I lit a building for Jack.” The prosecution offers Telford's
statement in evidence, and Jordan's counsel objects that it is hearsay. The objection should
be:
A. Overruled, because Telford is describing an event, the arson, while perceiving it.
B. Overruled, because Telford was probably “hyped up” and “nervous” due to a startling
event—having unintentionally probably injured or killed people in the arson fire—and is
likely still under the stress of excitement.
C. Sustained, because Telford is expressing remorse about unintentionally injuring or
killing people in the arson fire, and remorse suggests reflection, which undercuts the
inference that he was continuously under the stress of excitement.
D. Sustained, because Telford's statement does not relate to the startling event.
A-8.9. FRE 803(3). In a breach of contract case, in order to prove a lack of mutual assent,
the defendant David D'Amico calls a witness to testify: “As soon as he finished reading the
contract, David turned to me and said, 'I don't understand a word of this legal jargon.'” The
plaintiff's counsel objects that the statement is hearsay. The objection should be:
A. Overruled, because the statement is not offered for the truth of the matter asserted.
 B. Overruled, because it is a statement of state of mind, relevant to show a lack of
agreement to the terms of the contract.
C. Sustained, because the statement is one of belief offered to prove the fact believed,
that the contract was filled with jargon.
D. Sustained, because the statement is offered to prove the truth of the contents of the
written document.
A-8.10. FRE 803(4). Paul Preston is suing National Motor Corporation (“NMC”) for personal
injuries arising out of an auto accident in which his “Bounder” sports utility vehicle rolled over
while making a tight turn on a highway entrance ramp. Preston claims that a design defect in
the Bounder makes it prone to rollover accidents. To prove his injuries, and rebut the
defendant's anticipated contention that he was intoxicated at the time he was driving,
Preston offers into evidence his medical records from the emergency room where he was
treated immediately after the accident. The records state, “Patient reports nausea, dizziness,
and intermittent loss of

691
consciousness. Patient states that he has consumed no alcohol in the past 24 hours.” Do the
records fit within FRE 803(4)?
A. No, because we don't know who took down the information.
B. No, because the relevant portion is the statement about alcohol consumption, which is
unreliable, since anyone involved in a car accident will know he has an incentive to
claim that he has not consumed alcohol.
C. Yes, but only the symptoms, and not the statement about alcohol consumption.
D. Yes, because the entire statement was probably made for, and reasonably pertinent to,
diagnosis and treatment.
A-8.11. FRE 803(5). Mark Whitman, an executive of Pharmacorp, worked as an government
informant during the FBI's investigation of Pharmacorp for violation of antitrust laws in pricing
its drug, Vimmex. At the FBI's direction, Whitman kept a written diary in which he made notes
of events and conversations relating to Pharmacorp's pricing of Vimmex. At trial, Whitman
testifies that he faithfully made the diary entries at the end of each day while the events and
conversations were fresh in his mind, and that he tried to be as accurate as possible. From
time to time on the witness stand, when Whitman testifies that he “can't remember” or “can't
recall all the details,” the prosecutor asks him to read pertinent portions of the diary aloud, to
the jury. The defense objects to this reading from the diary. The objection should be:
A. overruled, because the witness's memory can be refreshed with anything, including
inadmissible matter.
B. overruled, because the diary qualifies as a recorded recollection and is properly
admitted by reading it into the record.
C. sustained, because there has been no showing the Whitman's memory is exhausted,
and indeed he remembers some things.
D. sustained, because Whitman was a government informant when he made diary entries,
making them inherently untrustworthy.
A-8.12. FRE 803(6). Mary Martina is suing Jan Johnson for personal injuries resulting from
an automobile accident. As part of her case, Mary calls Frank Williams, a bystander who
observed the accident. He testifies that Jan ran a red light and collided with Mary. As part of
her defense, Jan offers a properly authenticated police report, which contains the following
statement: “Bystander Frank Williams stated that Mary ran red light.” Which of the following
are the best grounds for refusing to admit Williams's statement through the police report?
A. Police accident reports are not made as a regular practice by the police organization.
B. Police reports are made for purposes of litigation.
C. Williams does not have a business duty to report.
D. All of the above are equally strong grounds for denying admission as a business record.
A-8.13. FRE 803(8). In the Johnson case, each correctional officer prepared a CDC 115
Report of his own observations of the incident involving inmate Johnson.

692
These reports may lead to officer or inmate discipline. Suppose that a state law rule identical
to FRE 803(8) applies. The prosecution offers Walker's CDC 115 Report to prove Walker's
version of the incident. Does the report qualify for admission under the public records
exception?
A. No, because Walker should be classified as “law enforcement personnel” for purposes
of the 803(8)(A)(ii) exclusion.
B. No, because the CDC report deals with Walker's own conduct and could be used to
discipline him; because he is an interested party, his report should be excluded as
untrustworthy.
C. Yes, because CDC 115 reports are routine housekeeping matters under FRE 803(8)(A)
(i).
D. A and B are arguably correct, but C is not.
A-8.14. FRE 804(b)(1). David Bond and his parents have sued David's treating physicians
and their practice group for medical malpractice in failing to diagnose David's extremely rare
form of encephalitis. Defendants noticed a deposition of plaintiffs' expert witness, Dr.
Lakeman, whose test of David's cerebral spinal fluid was positive for this disease whereas
defendants' test, administered one day previously, was negative. At trial, Dr. Lakeman is
unavailable and plaintiffs seek the admission of his deposition pursuant to FRE 804(b)(1).
Defendants object that the deposition is inadmissible hearsay. The objection should be:
A. Sustained, because the defendants did not have a “similar motive” to develop
Lakeman's testimony during pretrial discovery as they have at trial.
B. Sustained, because the deposition was not an adversarial proceeding.
C. Overruled, because the defendants had an opportunity and similar motive to discredit
Lakeman's opinion at the deposition.
D. Overruled, because defendants initiated the deposition process, and so the resulting
testimony can be used against them.
A-8.15. FRE 804(b)(3). Cosimo Demasi sued the Whitney Trust & Savings Bank for $6,500
dollars that the plaintiff claimed the bank held in a joint savings account that he maintained
with his wife. The bank defended on the ground that all but $700 had been withdrawn by the
plaintiff's daughter with the consent of Mr. or Mrs. Demasi. A judgment for the defendant was
reversed on appeal, and before the new trial Mrs. Demasi sought to withdraw the $700 that
the bank conceded remained in the account. In order to receive the money, the bank
required that Mrs. Demasi sign an affidavit indicating that she had consented to the prior
withdrawals. Mrs. Demasi signed the affidavit, withdrew the $700, and died before the
second trial began. At the retrial, the bank offers her affidavit.
TRUE or FALSE: The statement should be admitted under FRE 804(b)(3).
A-8.16. FRE 804(b)(3). Raymond Ochoa is charged with conspiracy to commit mail fraud for
filing a false insurance claim on his automobile, which he falsely reported as stolen. The
prosecution learned that Ochoa's former tenant, Dave McLaughlin, had put Ochoa in touch
with a “chop shop,” which would help him

693
dispose of his allegedly stolen car. McLaughlin was approached by an FBI agent who told
McLaughlin that he would benefit from talking to the FBI. McLaughlin made statements to the
agent describing his role in the conspiracy and implicating Ochoa in the plan to dispose of
the car and make the false claim. On the very next day, when the FBI attempted to serve
McLaughlin with a subpoena, the agents were told by McLaughlin's current landlord that he
had left town “for Maryland” with all his belongings.
TRUE or FALSE: The statement should be admitted under FRE 804(b)(3).
A-8.17. FRE 804(b)(6). Return to problem A-8.16. The FBI agent also visited McLaughlin's
employer looking for him. He learned that McLaughlin had stopped coming to work but was
owed his last paycheck. On the day after the FBI's visit, McLaughlin actually called the
employer to ask for his paycheck. When he hung up, the employer used caller ID and
determined that the call was made from Ochoa's home phone number. Phone records later
revealed that seven phone calls were made from Ochoa's phone number to McLaughlin's
employer during the next two days. McLaughlin then apparently disappeared and was never
found, despite good-faith efforts by the government. May the government use McLaughlin's
hearsay statements against Ochoa pursuant to FRE 804(b)(6)?
A. Yes, because Ochoa probably helped McLaughlin disappear.
B. Yes, because McLaughlin is unavailable and the government made good faith efforts to
find him.
C. No, because there is no evidence that Ochoa knew McLaughlin was going to try to
disappear or helped him do so.
D. No, because the government is relying entirely on hearsay statements of Ochoa's
employer.
A-8.18. FRE 807. David Dixon has been charged with conspiracy to sell and with selling
heroin. Two alleged co-conspirators, Brown and Green, were granted immunity and were
prepared to testify against Dixon. Since Green had a long history of involvement with drugs
and several drug-related convictions, the prosecution planned to make Brown the star
witness. Brown, however, died of a heart attack several days before the trial. At Dixon's trial
the prosecution authenticates and offers into evidence a letter from Brown to his mother,
telling her that he is feeling sick, that he thinks he is about to die, and that he wants to
confess to her. The letter then describes his drug dealings with Dixon. The prosecution offers
this letter in evidence.
TRUE or FALSE: The court should exclude the letter.
 ANSWERS
A-8.1 The best answer is C. A is false because it omits the critical part of the hearsay
definition: To be considered hearsay, an out-of-court statement must be offered to establish
its truth. Furthermore, A also fails to acknowledge that intentionally assertive conduct can be
hearsay as well. B is better than A, but it still fails to include

694
intentionally assertive conduct in the definition of hearsay. Answer C, on the other hand,
offers a definition that includes every aspect of hearsay. For that reason, C is the best
answer, and D is false.
A-8.2. True. “The Main Street Garage” is an out-of-court statement of the garage owners.
This statement, however, is not offered to prove the garage's location on Main Street. Rather,
it is offered to prove the name of the business, and for that reason isn't hearsay. Other parts
of W's testimony implicate no out-of-court statements and thus can't be considered hearsay
as well.
A-8.3. True. V's out-of-court statement threatening to ruin D's business is offered to show its
effect on the listener (D) rather than its truth. Hence, it isn't hearsay.
A-8.4. False. The passengers' conduct indicated that the bus was heated, but they took their
sweaters off in order to feel cooler rather than to communicate to someone that the bus was
heated. This conduct was not intentionally assertive and it isn't hearsay for that reason.
A-8.5. False. D's testimony is admissible nonhearsay because it cites an out-of-court
statement containing a threat to prove the statement's effect on D as part of his defense of
duress (as in the classic British case, Subramaniam v. Public Prosecutor [1956] 1 W.L.R.
965).
A-8.6. False. Here, Edgar's statement is offered to prove its truth about the facts of the
parties' conspiracy to kidnap Victor and demand ransom from his family. Hence, it is hearsay.
The statement is potentially admissible under the co-conspirator exception to the hearsay
rule, FRE 801d(2)(E). To make it admissible, however, it would not be enough to authenticate
Edgar's e-mail pursuant to FRE 901(a). Edgar's statement could only be admitted if the
prosecutor offers independent evidence to confirm “the existence of the conspiracy or
participation in it,” as required by FRE 801d(2).
A-8.7. False. In a regular “multiple purpose” situation, evidence admissible for one purpose
but not for another goes in subject to the court's limiting instruction pursuant to FRE 105.
Here, however, E's confession—admissible against E alone—has a strong and potentially
unconstitutional spillover effect on D, who cannot cross-examine E, in violation of Due
Process and D's Sixth Amendment right to confront witnesses. For that reason, the Supreme
Court held that such confessions cannot be admitted into evidence as a matter of
constitutional law. Bruton v. United States, 391 U.S. 123 (1968).
A-8.8. FRE 803(1) & (2). The best answer is probably B, but C is also a very good answer.
Starting with the wrong answers: A is wrong because the three-hour passage of time is
probably too long for the contemporaneity requirement of FRE 803(1)'s present sense
impression, and it's arguable that his statement is not describing an event, but rather
reporting historical (here causal) facts about it. D is wrong because the statement clearly
“relates to” the startling event. B is a good answer because learning that there were people
in the building was a startling event, and it is easily imaginable that a person could be under
stress from that event continuously for at least three hours. But C is a good answer for the
reasons stated in the answer. The problem

695
is based on United States v. Tocco, 135 F.3d 116 (2d Cir. 1998), where the court had no
trouble in admitting this statement as an excited utterance. There must also be sufficient
proof of Telford's personal knowledge that the job was done “for Jack.” The circumstantial
facts that the defendant's brother was also involved (proved by the contents of the
statement) and that the two arsonists had a key to the premises were deemed sufficient to
indicate the probable involvement of “Jack,” the store's owner.
A-8.9. FRE 803(3). The best answer is B, for the reasons stated. David's lack of
understanding is a relevant mental state experienced at the moment of making the
statement. Answer A is incorrect, because the statement asserts a fact—David's lack of
understanding—that has to be true to be relevant. C is incorrect, because whether the
contract contains jargon is not the relevant point: What matters is whether David understood
it. D is wrong because the point of the statement is to prove David's state of mind of
understanding the document: The contents of the document are relevant here for the
nonhearsay purpose of effect on the listener. (And in the case overall, the contract is relevant
as a legally operative fact, another nonhearsay purpose.)
A-8.10. FRE 803(4). The best answer is D. The relevant statement is the one about lack of
alcohol consumption, which is pertinent to diagnosis and treatment of most conditions,
especially with symptoms like those reported here. Therefore, C is wrong. A is not a good
answer, because the rule does not specify proof of the identity of the medical professional or
her particular job description. Obviously some medical professional put it in the hospital
record. B is wrong because reliability is not an independent criterion of admissibility: Like all
the categorical exceptions, reliability is built into the other factual requirements, which are
satisfied here.
A-8.11. FRE 803(5). The best answer is B. The problem provides a complete foundation for
a recorded recollection, 803(5), which can be read into the record where, as here, the
witness testifies and his memory is incomplete. A is wrong because there is no indication
that the refreshing memory technique is being used, and a witness cannot read from the
document used to refresh, but must testify from his refreshed memory. C is wrong because,
unlike the refreshing recollection technique, FRE 803(5) requires only that the witness's
memory be less than full and accurate. D is not the best answer because there is no
trustworthiness exclusion to recorded recollection, and courts routinely allow notes made in
anticipation of litigation as recorded recollections.
A-8.12. FRE 803(6). The best answer is C. Numerous cases have held that bystanders do
not have a business duty to report under FRE 803(6) (or even a legal duty to report, under
FRE 803(8)). Police departments tend not to make it a routine practice to verify witness
statements before recording them; on the contrary, standard practice is to take down all
witness statements, and evaluate their veracity later. A is wrong, however, because making
police reports is a routine practice. B is arguable, but not the best answer, because the
presumption of untrustworthiness applies to records made by parties with an interest in the
litigation; presumably, the police would be neutral as between parties to an accident. (B
would be a stronger argument in a criminal case, however.) Because A is wrong, and B is a
weaker answer than C, D cannot be correct.

696
A-8.13. FRE 803(8). The best answer is D. A and B both offer solid reasons for excluding the
report. Although there is some debate about how far the definition of “law enforcement”
extends, it is clear in the Johnson case that the guards were acting as police officers within
the prison, with power to arrest and to report misconduct leading to punishment. Therefore, A
is probably correct. B is also correct for the reason stated. C is not a good answer: Reporting
on misconduct, crimes, accidents, and the like is not a matter of “routine housekeeping.”
FRE 803(A)(i) includes things like time cards and payroll records.
A-8.14. FRE 804(b)(1). The best answer is C. The purposes of taking an adverse witness
deposition are to discover facts, preserve testimony, and discredit adverse testimony. Parties
are generally on notice that depositions may be used where witnesses become unavailable.
And a tactical decision to save cross-examination material for trial is a calculated risk that
should not be held against the opposing party. A devastating cross-examination of an expert
witness in particular can undermine the opposing party's case—so the defendant's motive
was there. Thus A is wrong. B is wrong because depositions are adversarial proceedings—
both parties are represented, and may question the witness. D is nonsensical; there is no
hearsay exception allowing statements to be used against the party who discovered them in
pretrial proceedings.
A-8.15. FRE 804(b)(3). FALSE. The statement appears against Demasi's pecuniary interest
only if taken out of context. The facts make clear that signing the statement was in her short-
term pecuniary interest in getting the money. Although it was arguably against her long-term
interest, the motive was clearly mixed, and Demasi judged the benefits of taking the smaller
sum now as outweighing the cost of giving up the uncertain larger sum in the future. The fact
that we might have weighed the cost-benefit differently does not make the statement against
interest.
A-8.16. FRE 804(b)(3). FALSE. To begin with, there is insufficient evidence to find
McLaughlin unavailable. The landlord's mere say-so is not enough to establish that
McLaughlin has left the state, and even if he had, there must be some effort to locate him
and attempt to obtain his voluntary compliance or to take his deposition where he is. Even if
McLaughlin were unavailable, it is far from clear that his statement is against interest. Since
he himself was involved in the criminal activity, McLaughlin's cooperation was currying favor.
His mixed motive statement arguably had a predominant self-serving motive.
A-8.17. FRE 804(b)(6). The best answer is C. The rule requires the government to show by
a preponderance of the evidence that Ochoa procured or acquiesced in McLaughlin's
unavailability. While circumstantial evidence is permissible, the mere fact that Ochoa housed
McLaughlin is probably not enough—there is not even any evidence that Ochoa was “hiding”
McLaughlin at his place. Thus, A is not a good answer. B is not a good answer; while
unavailability is a required element, B neglects the “procured or acquiesced in” element. The
government's diligence goes to unavailability, not to “procured or acquiesced in.” D is wrong
because hearsay evidence is permissible under 104(a), which is the governing standard for
the factual elements of this and all other hearsay exceptions.
697
A-8.18. FRE 807. We believe “TRUE” is the better answer. First, the circumstantial
guarantees of trustworthiness of this letter stem from its “near miss” to the dying declaration
and statement against interest exceptions. But those exceptions offer some of the most
dubious reliability guarantees of all the hearsay exceptions, for the reasons discussed in the
text. It is just as likely that Brown would want to minimize his bad conduct in “confessing” to
his mother by shifting blame onto Dixon, as that he would speak truthfully. Not only is his
motive mixed, but his illness might affect the accuracy of his memory. Second, the need for
the evidence and interests of justice do not strongly favor use of FRE 807 here. The purpose
of the rule is not to allow the offering party to sanitize its case or present evidence that is
more persuasive. “More probative” should be understood to mean a stronger logical
connection to the facts, rather than less subject to impeachment. Furthermore, a court
should always prefer live witness testimony to hearsay on the same point where, as here,
admissibility comes down to a comparison between the two.

1. The testimonial triangle concept was first popularized for the academic legal community
by Professor Laurence Tribe in his article Triangulating Hearsay, 87 Harv. L. Rev. 957 (1974),
and in Richard O. Lempert and Stephen A. Saltzburg, A Modern Approach to Evidence
(1977). For a much earlier version of the triangle, see Charles Kay Ogden & Ivor Armstrong
Richards, The Meaning of Meaning 10-12 (1927).
2. In Chapter Six, page 358, supra, we noted that subsequent remedial measures might be
relevant to prove the belief of the actor that the situation remedied was dangerous. Now you
can see why such conduct is unlikely to be classified as hearsay—it is unlikely that such
actors are intending by their conduct to assert “dangerousness.” But do not forget that the
relevance of remedial measures to prove liability or fault still requires a complete trip around
the testimonial triangle.
3. But see the text of the restyled FRE 801(a): “Statement” means a person's oral
assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.
Could it be argued that the “it” in the final clause refers to oral and written assertions, as well
as conduct, and thus the Rule itself applies the intent test to verbal statements of unstated
belief as well? Probably not, as this would be a substantive change in the Rule.
4. Note that this protection of the right of the opponent to examine the witness concerning
the prior statement under FRE 801(d) is equivalent to the protection afforded under FRE
613(b) when a witness's prior inconsistent statement is offered only for impeachment, as
discussed in Chapter Seven, page 417.
5. There is a very narrow exception to this point, allowing statements of memory and belief
concerning the declarant's will. We'll set that aside for now and briefly return to it later.
6. The Hillmon case has fascinated evidence law specialists for years. But never has it
aroused more interest than recently, due to the efforts of Professor Marianne Wesson to
determine, once and for all, whose body was buried at Crooked Creek. Her history of the
dispute over the proceeds of Hillmon's insurance policy is fascinating, as reported at:
www.thehillmoncase.com/index.html.
7. [The court's little piece of cultural show-offery doesn't quite work. Rosa Ponselle (d.
1981) was a great soprano. “Celeste Aida” is sung by a male tenor. Perhaps she might have
sung it in the shower?—E .]
 8. Prior to the restyling, subsection (B) of FRE 803(8) excluded matter observed by “police
and law enforcement.” The “police” has been dropped and “law enforcement personnel”
stands on its own as the term of exclusion. We assume that all prior case law interpreting the
“law enforcement” term still applies to subsection (A)(ii).
9. [Petitioner Michael Crawford's and his wife Sylvia's interrogations were tape recorded by
the Olympia Police Department.—E .]
10. The court rejected the State's argument that guarantees of trustworthiness were
unnecessary since petitioner waived his confrontation rights by invoking the marital privilege.
It reasoned that “forcing the defendant to choose between the marital privilege and
confronting his spouse presents an untenable Hobson's choice.” The State has not
challenged this holding here. The State also has not challenged the Court of Appeals'
conclusion (not reached by the State Supreme Court) that the confrontation violation, if it
occurred, was not harmless. We express no opinion on these matters.
11. We use the term “interrogation” in its colloquial, rather than any technical legal, sense.
Cf. Rhode Island v. Innis, 446 U.S. 291, 300-301 (1980). Just as various definitions of
“testimonial” exist, one can imagine various definitions of “interrogation,” and we need not
select among them in this case. Sylvia's recorded statement, knowingly given in response to
structured police questioning, qualifies under any conceivable definition.
12. The Chief Justice claims that English law's treatment of testimonial statements was
inconsistent at the time of the framing, but the examples he cites relate to examinations
under the Marian statutes. As we have explained, to the extent Marian examinations were
admissible, it was only because the statutes derogated from the common law[.]
13. The one deviation we have found involves dying declarations[.] Although many dying
declarations may not be testimonial, there is authority for admitting even those that clearly
are. We need not decide in this case whether the Sixth Amendment incorporates an
exception for testimonial dying declarations. If this exception must be accepted on historical
grounds, it is sui generis.
14. []Involvement of government officers in the production of testimony with an eye toward
trial presents unique potential for prosecutorial abuse—a fact borne out time and again
throughout a history with which the Framers were keenly familiar. This consideration does
not evaporate when testimony happens to fall within some broad, modern hearsay exception,
even if that exception might be justifiable in other circumstances.
15. [W]e reiterate that, when the declarant appears for cross-examination at trial, the
Confrontation Clause places no constraints at all on the use of his prior testimonial
statements. See California v. Green, 399 U.S. 149 (1970). The Clause does not bar
admission of a statement so long as the declarant is present at trial to defend or explain it.
(The Clause also does not bar the use of testimonial statements for purposes other than
establishing the truth of the matter asserted.)
16. This is not to imply, however, that statements made in the absence of any interrogation
are necessarily nontestimonial. The Framers were no more willing to exempt from cross-
examination volunteered testimony or answers to open-ended questions than they were to
exempt answers to detailed interrogation. . . . And of course even when interrogation exists,
it is in the final analysis the declarant's statements, not the interrogator's questions, that the
Confrontation Clause requires us to evaluate.
17. Police investigations themselves are, of course, in no way impugned by our
characterization of their fruits as testimonial. Investigations of past crimes prevent future
harms and lead to necessary arrests. While prosecutors may hope that inculpatory
“nontestimonial” evidence is gathered, this is essentially beyond police control. Their saying
that an emergency exists cannot make it be so. The Confrontation Clause in no way governs
police conduct, because it is the trial use of, not the investigatory collection of, ex parte
testimonial statements which offends that provision. But neither can police conduct govern
the Confrontation Clause; testimonial statements are what they are.
18. [References to the Davis/Hammon opinion and other cases are omitted.—E .]
19. Many other exceptions to the hearsay rules similarly rest on the belief that certain
statements are, by their nature, made for a purpose other than use in a prosecution and
therefore should not be barred by hearsay prohibitions. See, e.g., Fed. Rule Evid. 801(d)(2)
(E) (statement by a co-conspirator during and in furtherance of the conspiracy); 803(4)
(Statements for Purposes of Medical Diagnosis or Treatment); 803(6) (Records of Regularly
Conducted Activity); 803(8) (Public Records and Reports); 803(9) (Records of Vital
Statistics); 803(11) (Records of Religious Organizations); 803(12) (Marriage, Baptismal, and
Similar Certificates); 803(13) (Family Records); 804(b)(3) (Statement Against Interest).
20. Justices Thomas and Alito also wrote brief concurrences stating their doubts that
Avie's statements to the police were “testimonial” at all, but acknowledging that this issue
was not before the Court.
21. I put aside Confrontation Clause questions in criminal cases.
699

CHAPTER NINE
LAY OPINIONS AND EXPERT
WITNESSES
Considering the emphasis in trials of presenting “facts,” you may be
surprised by the amount of testimony that can be categorized as
“opinion.” In this chapter, we examine the various issues involved in
offering opinions as evidence. Ordinary fact witnesses offering
firsthand knowledge under FRE 602 are permitted to offer opinions
under certain circumstances. The term “lay” witness is used in the
context of opinion testimony to refer to a so-called layman, a person
who lacks specialized knowledge and relies on commonsense
reasoning. The term is roughly equivalent to a “percipient” witness.
We examine FRE 701, which addresses opinions by lay witnesses, in
Section A of this chapter.
A person who testifies on the basis of specialized knowledge is
identified as an expert by the law of evidence. In the remaining
sections of this chapter, we examine FRE 702-706, the rules covering
expert witnesses. The most significant part of the testimony by an
expert witness is categorized as opinion testimony.

A. LAY OPINIONS

1. FRE 701
RULE 701. OPINION TESTIMONY BY LAY WITNESSES
If a witness is not testifying as an expert, testimony in the form of an opinion is limited to
one that is:
(a) rationally based on the witness's perception;
(b) helpful to clearly understanding the witness's testimony or to determining a fact in
issue; and
 (c) not based on scientific, technical, or other specialized knowledge within the scope
of Rule 702.

2. Explanation of FRE 701

700

FRE 701 makes clear that opinion testimony by lay witnesses is

admissible. Superficially, and in the traditional language of the
common law, lay witnesses were expected to testify to what they
observed (i.e., “facts”) rather than to any inferences, summaries, or
conclusions about facts. Such inferences, summaries, and
conclusions were grouped together as “opinions.” Despite its surface
presentation as limiting opinion testimony, FRE 701 in effect relaxes a
common law tendency to disfavor opinion testimony. The rule
recognizes that opinions are unavoidable features of how people
conceptualize and describe perceived facts, and thus generally
allows lay opinion testimony, subject to three sensible qualifications.
Rationally Based on Perception. FRE 701(a)'s requirement that a
lay opinion must be “rationally based on the witness's perception”
simply expresses the idea that FRE 602 still applies to the lay witness
testimony. Allowing opinion testimony does not authorize
lay/percipient witnesses to depart from the requirement of personal
knowledge. This requirement prevents unfounded opinions, and
ensures that an opinion stems from firsthand knowledge of case-
specific facts rather than speculation or free-floating generalizations
about the world.
Helpful to the Trier of Fact. FRE 701(b) requires that the opinion
be helpful to the factfinder in “clearly understanding the witness's
testimony or to determining a fact in issue.” This rule is designed to
prevent witnesses from usurping the jury's function by drawing
inferences or conclusions that the jury can and should draw on its
own. It also tends to force witnesses to stick to the facts to the extent
possible.
 Not Based on Expert Knowledge. FRE 701(c) draws the
boundary between lay and expert opinion. Lay opinions must be
based on common knowledge. If an opinion requires “scientific,
technical or other specialized knowledge” it can't be given by a lay
witness. Only a witness qualified as an expert can give such opinions,
as we discuss further in the expert witness sections. For now, note
that “other specialized knowledge” is an extremely broad catchall,
that refers to anything outside common knowledge.

3. FRE 701: Practical Applications

Consider the following two items of testimony. (1) The defendant
grinned when he signed the contract. (2) The defendant was happy
when he signed the contract. Both statements could be characterized
as an opinion. After all, what is a grin? It is a facial expression
involving the contraction of certain muscles in the face, in which the
corners of the mouth turn up, the lips part, the corners of the eyes
crinkle, etc. The word “grin” is a conclusion or summary of those
details, together with several others not mentioned, and thus is an
opinion of sorts.

701

But you can see the problem. If a judge were to conclude that “grin”
was an impermissible opinion and direct the witness to specify the
underlying facts, it would tax the narrative abilities of the witness to
an excessive degree. And there might be a corresponding loss of
information: The detailed description of a grin given in the previous
paragraph is probably less informative than the well-understood word
“grin.” The opinion, if it is an opinion, is helpful to the jury both directly
and indirectly by allowing witnesses to testify in natural speech.
Contrast the statement that the witness was “happy.” Here it is easier
to imagine the witness supplying more underlying detail. (He smiled,
pumped his fist in the air, and shouted “woo-hoo!”) The underlying
detail is more informative and vivid, and the conclusion (if relevant) is
left to the jury. For reasons that we'll explore further, a court is much
more likely to disallow the “happy” opinion than the “grin” opinion, and
indeed, the “grin” testimony might not be deemed an opinion at all.
The difference between an opinion that a court will decide to
analyze under FRE 701 and a fact that will not be deemed to trigger
FRE 701 is a matter of . . . well . . . opinion. In the following
subsections, we'll start with a sort of “field guide” to recognizing
opinions, and then drill down analytically to provide you with tools to
distinguish fact and opinion, and to determine when opinions are
likely to be held inadmissible.
a. Recognizing Opinions
It may be useful to identify three broad categories of opinions.
These categories are not spelled out in the evidence rules or case
law, but may be useful in thinking analytically about opinion
testimony. Also the three categories should not be deemed rigidly
distinct, since they may tend to overlap somewhat.
Estimates. A witness might estimate the speed a car is going, the
duration of time of an event, or a distance between two points. You
might also think of estimates as including verbal approximations of
sense perceptions: for instance, “it smelled like something was
burning.” Courts frequently deem such estimates to be admissible
opinions, provided that there is ESSF of a firsthand opportunity to
observe.
Summaries. An opinion might take the form of a summary of a
number of more detailed items of data. In the example above,
characterizing a facial expression as a “grin” can be understood as a
summary of many composite facts, even if those composite facts are
difficult to articulate. FRE 405(a) and 406 allow testimony of character
and habit in the form an “opinion.” As used there, “opinion” refers to
the witness's summary of his own firsthand observations about the
person's behavior. In the Johnson trial, when one of the guards
described Johnson's behavior as “combative,” he was offering an
(objectionable) opinion that in effect summarized a number of specific
behaviors under a single label. Likewise, describing someone as
drunk is a summary label applied to specific observations—slurred
his speech, walked unsteadily, reeked of alcohol, spoke loudly and
offensively, etc.

702

Inferences. An opinion might be classified as an inference when it

plausibly fills in a missing fact, adds an extra fact, or draws a
conclusion from more detailed facts. Inferences also go beyond
merely labeling a set of facts and take them a step further to imply or
explain causes or motivations. For example, calling a set of facial
expressions a “grin” is a summary; concluding that the grinning
person is “happy” is an inference: It adds a plausible extra fact.
A Fourth Category: Subjective Feelings or Judgments Are Not
FRE 701 Opinions. A person's subjective likes, dislikes, tastes,
preferences, and feelings about things or persons are called
“opinions” in common parlance. Ironically, these types of “opinion” will
not be categorized as FRE 701 opinions at all. They may well be
relevant as motivations for relevant conduct, or to show the bias of a
witness, but their subjectivity takes them out of the purview of FRE
701. A witness's estimate, summary, or inference that another person
has a particular subjective feeling, or about the extent of such a
feeling, may trigger FRE 701, however.
b. Fact versus Opinion

By its terms, FRE 701 governs testimony by lay witnesses “in the
form of an opinion,” as opposed to a fact. Thus, the core problem in
deciding whether FRE 701 applies to an item of testimony is the
difficulty in distinguishing a “fact” from an “opinion. All facts are
“opinions” at some level, because any assertion of fact requires an
estimate, summary, or inference.
Consider the chair you're probably sitting on right now. (If you're
standing, or lying down, or riding an exercycle, then humor us and
picture a chair.) To assert that “this is a chair” seems like a
straightforward example of a fact: It's simple, clear, objective, not
fairly debatable. Yet labeling that thing a “chair” is certainly the result
of a summary of the discrete characteristics of chairs. You could
break down the chair's description into more specific facts: It is a
piece of furniture with four legs, a back, and a surface for sitting on.
Undoubtedly, in most cases, a witness would be allowed to testify
about the chair without triggering FRE 701. A witness to a bar fight
might testify that the defendant “threw a chair at” the plaintiff. But
imagine, instead, a civil suit for breach of contract by a client against
a furniture designer. The client contracted for a set of dining room
chairs, and paid a large sum of money to the designer. The client
received a set of beautiful objects, each with a very narrow seat and
back, and so delicate that one of them broke under the weight of a
200-pound dinner guest. As plaintiff, the client argues that what was
delivered was not a chair. In this example, the case turns on disputed
opinions about what a chair is.
This example gives you a significant insight into the fact/opinion
distinction. There is no clear analytical distinction or definitional line
between the two. Instead, the fact/opinion distinction is a pragmatic or
functional one that depends on the application of two sliding scales.
First, how specific is the assertion? The more specific the assertion,
the more likely it is to be characterized as a fact. Second, how close
is the assertion to a disputed issue? An assertion stated at a
relatively high level of generality is more

703

likely to be characterized as an opinion when the assertion involves

a disputed issue. Both of these factors will be in play in determining
whether an item of testimony will be deemed a fact or opinion.
c. Rationally Based on the Perception of the Witness

The lay opinion rule does not excuse or substitute for the
requirement of firsthand knowledge. On the contrary, FRE 701(a)
restates the firsthand knowledge requirement. The rule merely allows
firsthand knowledge to be expressed in the form of an opinion—as an
estimate, summary, or inference, in the terms we suggested. What
does it mean for an opinion to be not rationally based on a witness's
perception? Most likely, one of the following:
 Hidden Hearsay. An opinion might be based on secondhand
information—hearsay. The hearsay could be masked by the fact that
the assertion takes the form of an opinion. Suppose a police officer
was called to a car accident scene following the accident and
interviews several eyewitnesses. At trial, she may be asked, “Officer
Curtis, what in your opinion happened?” She responds, “The blue
Honda SUV ran the red light and collided with the Subaru.” On the
surface, Officer Curtis was asked for an opinion, and gave what
sounds like a fact. She answered the question truthfully without
reference to any hearsay. But the opinion is based on hearsay: She
wasn't there to see the car running a red light and is no doubt relying
on eyewitness accounts. When a lay witness is asked for an opinion,
it is important to be on the alert for hidden hearsay: The unanswered
question is, “How does the witness know that?”—the FRE 602
foundation question.
Speculation. A second common form of unfounded opinion—one
not rationally based on the witness's perception—involves
speculation. The witness doesn't have all the facts, but fills them in
more or less plausibly and reaches a conclusion—and states it as an
opinion. Such speculative opinions often arise when a witness offers
to characterize the mental state of another person.
Unfounded Inferences or Overgeneralizations. Opinions might
be deemed not rationally based on the witness's perception when a
witness states an opinion involving too large an inferential leap based
on too few case-specific facts. Similarly, the opinion might be largely
or entirely based on generalizations about the world rather than case-
specific facts. For example, in a reverse sex-discrimination case, a
witness for the male plaintiff testifies that the female applicant “must
have gotten the job because of affirmative action,” but without any
specific knowledge of that applicant's qualifications or the specific
employer's practices. What's the basis for the opinion? “Because
that's how employers are these days.” Such an opinion would fail the
personal knowledge requirement of FRE 701(a).
In any of the above examples of unfounded opinions, a clever
lawyer might argue, “but Your Honor, a witness always has firsthand
knowledge of his own opinion!” True. But an opinion not rationally
based on case-specific facts is irrelevant, and should be excluded
under both FRE 401/402 and 701.

704
d. Helpful to the Trier of Fact
Opinions must be helpful to the trier of fact. As FRE 701(b) puts it,
an admissible opinion must be “helpful to clearly understanding the
witness's testimony or to determining a fact in issue.” At this point,
let's assume that we have determined that the testimony in question
is an opinion, rather than a “fact,” that FRE 701 has been invoked,
and that FRE 701(a) has been satisfied. Thus, we are assuming that
the witness is giving an estimate, summary, or inference based on
more specific facts. We can also assume that those facts are within
the witness's personal knowledge, or else the opinion testimony
would have been barred by FRE 701(a). The question now is whether
the witness will be allowed to give the opinion, or instead will have to
provide the more specific facts.
Availability of More Detailed Facts. In deciding whether an
opinion is helpful to the trier of fact, the court will primarily consider
two factors: (1) the availability of the more detailed facts, and (2) the
proximity of the opinion to an important disputed issue in the case.
The availability of more detailed facts comes down to a problem of
narration. In some instances, it will be easy to break a fact down into
its component parts, but in others it could be quite difficult. In the
example given above, a “grin” is very difficult to break down into
specific component facts, compared to the conclusion that the
witness was “happy.” It's also possible that seeking more specificity
could result in a loss of information. A summary opinion that the
defendant “approached me in a threatening manner” might ultimately
be more informative than pressing for details from a witness who is
not a talented storyteller with an eye for minute detail. Such a witness
might not be able to manage more than, “I don't know, he was just
threatening.” Even high-level generalizations might not be amenable
to detailed breakdowns: “He was well-liked by his coworkers,” for
instance.
Perhaps a good practical test for this is to imagine posing such
questions as: “Can you be more specific?” or “Can you explain what
you mean [by 'threatening']?” If you can easily imagine a satisfactory
response to that question, you are more likely to have an opinion that
would be more helpfully replaced by detail. This question is highly
context-specific, so that case law will seemingly come out in different
ways. Compare, e.g., Alexis v. McDonald's Restaurants of Mass.,
Inc., 67 F.3d 341 (1st Cir. 1995) (rejecting opinion testimony that
rudeness to customer was racially motivated due to lack of supporting
detail), with Bohannon v. Pegelow, 652 F.2d 729 (7th Cir. 1981)
(permitting testimony that assault was racially motivated, despite lack
of supporting detail).
Proximity to a Disputed Issue. The second factor, proximity to a
disputed issue, primarily concerns the extent to which an opinion
substitutes the judgment of the witness for that of the jury. “[T]he
closer the subject of the opinion gets to critical issues, the likelier the
judge is to require the witness to be more concrete.” United States v.
Allen, 10 F.3d 405, 414 (7th Cir. 1993). The factfinder is the one
charged to draw inferences; the witnesses are supposed to relate
factual observations, leaving to the factfinder the inferences to be
drawn. “Lay opinions are not helpful when the jury can readily draw
the necessary inferences and conclusions without the aid of the

705

opinion.” Lynch v. City of Boston, 180 F.3d 1, 16 (1st Cir. 1999) (in
an employment discrimination case, the court excluded an opinion
that plaintiff was responsible for the success and growth of the
program, having already admitted much specific detail praising her
job performance). There is no hard and fast rule barring lay opinions
on “ultimate issues.” Cf. FRE 704 (permitting expert opinion on most
ultimate issues). However, where courts believe that a jury is as
capable of drawing conclusions from specific evidence as the
witness, they are likely to find a witness's ultimate conclusion to be
unhelpful.
e. Not Based on Specialized Knowledge
FRE 701(c) provides that lay opinion cannot be “based on scientific,
technical, or other specialized knowledge within the scope of Rule
702.” The rule draws a clear line between lay and expert testimony.
Lay opinions must be on matters of common knowledge, whereas
opinions based on specialized knowledge must conform to the more
rigorous requirements of the expert opinion rules.
FRE 701(c) was added as an amendment to the FRE in 2000 to
close a perceived loophole through which, it was believed, “the
reliability requirements set forth in Rule 702 [were being] evaded
through the simple expedient of proffering an expert in lay witness
clothing.” Advisory Committee Note to FRE 701. “[T]the amendment
also ensures that a party will not evade the expert witness disclosure
requirements set forth in Fed. R. Civ. P. 26 and Fed. R. Crim. P. 16.”
Id. Even prior to the revision to Rule 701(c), many courts recognized
a rigid division between expert and lay testimony. See, e.g., Certain
Underwriter's at Lloyd's, London v. Synkovich, 232 F.3d 200 (4th Cir.
2000) (“This rule . . . generally does not permit a lay witness to
express an opinion as to matters which are beyond the realm of
common experience and which require the special skill and
knowledge of an expert witness.”). This amendment allows judges
much discretion to tailor a ruling on the admissibility of testimony to
the qualifications and the extent of firsthand knowledge of an
individual witness. See, e.g., United States v. Ayala-Pizarro, 407 F.3d
25 (1st Cir. 2005) (law enforcement agent allowed to testify about
nature of drug distribution points and what occurs there without being
qualified as expert, because knowledge of points was gained through
firsthand observation). Rules 701 and 702 distinguish between expert
and lay testimony rather than expert and lay witnesses, making it
possible for the same witness to provide both lay and expert
testimony in a single case. See, e.g., United States v. Figueroa-
Lopez, 125 F.3d 1241, 1246 (9th Cir. 1997) (law enforcement agents
allowed to testify that the defendant was acting suspiciously, without
being qualified as experts; however, the rules on experts were
applicable where the agents testified on the basis of extensive
experience that the defendant was using code words to refer to drug
quantities and prices). This allows judges to faithfully follow the letter
and spirit of Rule 702 and yet not be forced into formulaic exclusions
of testimony.
Older cases tried to draw a few categorical lines distinguishing lay
and expert testimony, some of which remain good law. For example,
many courts allow lay opinion to the effect that another person was
drunk. It is also common for courts to allow lay witnesses to estimate
the speed of a motor vehicle. These, and a handful of others, have

706

been generally allowed even though, in theory, they might have

been categorized as requiring specialized knowledge.
f. Opinion Testimony: Practice Pointers

Objecting to Lay Opinion Testimony. The grounds to object to

improper lay opinion should be fairly apparent from the foregoing
discussion. Where the witness's opinion is not “rationally based” on
firsthand knowledge, the opinion lacks foundation, or may be
irrelevant, or both. It may also be based on hidden hearsay, in which
case a hearsay objection is appropriate. The opinion could be
objected to as unhelpful to the jury where it can and should be broken
down more specifically, or where it usurps the jury's function of
drawing inferences. And finally, the opinion may be objectionable
because it asks a lay witness for expert opinion. As with all
objections, no magic words are required. “Improper lay opinion”
should suffice to cover any of the above objections.
Foundation for Lay Opinion. The danger of improper lay opinion
is offset by self-correcting incentives of lawyers presenting the
testimony. Juries will almost always find details more persuasive than
naked opinions. If an opinion is admitted, it will still be more
persuasive if its basis is explained. Suppose your witness on direct
examination offers an opinion, which is admitted without objection.
The best follow-up question is likely to be, “Why do you think so?” or
“Can you explain why you say that?” Those questions elicit the basis
for the opinion, and make for more persuasive testimony.
Conversely, for the same reasons, it may be smart tactics to decline
to object if your opponent offers unsupported lay opinion testimony.
Even if your objection is sustained, you may simply succeed in
prompting your opponent to get the witness to provide more
persuasive detail. Tactically, you should object only if you have
reason to believe that the witness lacks the firsthand knowledge (or
perhaps the narrative ability) to explain the underlying details of the
opinion.
Lay Opinion on Questions of Law. Courts traditionally prohibited
opinions on questions of law. If by “questions of law” one means
questions that are for the judge rather than the jury to decide, it is
obviously appropriate that jurors not hear evidence on the issue in
any form. The evidence from their perspective would be irrelevant.
On the other hand, if the issue is one for the jury to decide, there
would appear to be no sound reason to prohibit an opinion merely
because one can characterize the issue as embodying “law” or a
“legal concept.” Indeed, to have a rule that prohibits opinions on jury
issues that are characterized as questions of law—or, as some courts
have said, “mixed questions of law and fact”—and, at the same time,
to permit opinions about ultimate issues of “fact” (see FRE 704) may
lead to an abstract, unresolvable debate about whether the issue is
one of “fact” or “law.” There may, of course, be times when an opinion
embracing a legal concept would be confusing (e.g., if the witness
were using the term differently from the manner in which the law used
it), not very helpful (e.g., if it were a substitute for the underlying
facts), or a matter of expertise.

707

A witness's opinion about law may actually itself be a relevant fact

in a case. Consider, for example, a civil rights case in which the
plaintiff is suing a municipality on the theory that it has failed to train
its officers properly in the use of reasonable force. It would be
relevant, and not an improper “legal conclusion,” to ask a police
officer employed by that municipality, “What is your understanding of
when the law allows you to use deadly force?”
Courts can deal adequately with these problems on a case-by-case
basis, just as they can deal adequately on a case-by-case basis with
opinions on ultimate issues of “fact.” Regardless of how one
characterizes the issue to which the opinion is directed, the critical
question should be whether the opinion will be helpful to the jury.

KEY POINTS
1. Lay witnesses can offer opinion testimony (estimates,
summaries, conclusions) so long as the opinion is rationally
based on the witness's firsthand knowledge, is helpful to the
jury, and is not based on specialized knowledge.
2. Limitations on lay opinion testimony are based on concerns
that such testimony may be based on hearsay or otherwise
lack foundation, that it may sometimes deprive the jury of
important factual detail, or that it may usurp the jury's role of
drawing inferences and conclusions, especially on ultimate
facts.
3. The distinction between opinions, which fall within FRE 701,
and facts, which don't, can't be determined by definition.
Instead, the distinction is a function of the level of specificity of
the fact assertion and its proximity to a disputed issue in the
case. Opinions tend to be stated at a higher level of generality,
and courts are more likely to exclude opinions on important
contested issues where facts can be described in greater
detail.

PROBLEMS
9.1. Cindy Wilton sued her former employer, Store Mart, for sexual
harassment by her manager, Donald Clay. One of the elements
of the claim under the substantive law is that the sexual
advances or conduct were “unwanted” by the plaintiff. One
element of an affirmative defense asserted by Store Mart is
that the company has good policies, procedures, and training in
place to prevent harassment.
(a) One of Cindy's coworkers is prepared to testify, “I saw
Donald Clay wink at Cindy several times a day, and on
three occasions, I saw him grope her. Clay's actions were
unwanted by Cindy. She was definitely turned off by
them.” Store Mart objects that this entire testimony is
inadmissible lay opinion.
(b) Later, in cross-examining Clay, plaintiff's counsel asks,
“Mr. Clay, can it be sexual harassment for an employee of
Store Mart to repeatedly touch the body of a coworker?”
Store Mart objects that this question seeks “an
impermissible legal opinion, in violation of Rule 701.”

708

What arguments should be made for and against admission

under FRE 701?
9.2. Review the following excerpts from People v. Johnson and
consider whether any objections could have been made, and
would have been sustained, on the ground that improper
opinion testimony was being sought or offered. (Ignore
objections to questions as “leading” – assume that a non-
leading question had been asked.)
(a) page 15, lines 6-17;
(b) page 25, line 28;
(c) page 31, lines 30-35;
(d) page 51, lines 20-27;
(e) page 62, lines 14-15.
9.3. A police officer investigating a murder found a hatchet near the
scene of the crime. In the trial of the accused, should the officer
 be allowed to testify to his estimation of how long the hatchet
had rested in that spot? Or, should the officer be required to
describe that the area where he found the hatchet contained
old, brown, moist grass in the late stages of decomposition,
and that when he retrieved the hatchet, its face was caked with
moist, decomposing grass? Or both?

B. ADMISSIBILITY OF EXPERT TESTIMONY

Expert witnesses present evidence based on specialized knowledge

acquired through training, study, or experience. Specialized
knowledge refers to a degree and focus of knowledge beyond
common knowledge. With expert witnesses, the fact-opinion
distinction discussed in the context of lay witnesses is frequently
inapplicable. In some circumstances, an expert happens also to have
been a firsthand observer of the underlying events, and may testify to
those to the same extent as a percipient witness. In all other
respects, the law of evidence considers expert testimony to be
“opinion” testimony by definition. This is a somewhat peculiar
definition of “opinion,” reflecting that expert witnesses usually give
opinion testimony that is not based on their own firsthand perception
of litigated events, but are applying specialized knowledge to the
firsthand testimony of others to help the jury draw conclusions.
Experts usually receive the case-specific background facts from the
parties who hire them. The validity of experts' opinions consequently
may depend upon independent proof of those facts.
For our analytical purposes, it is useful to think of expert “opinions”
as comprising two types.
(1) Case-specific Facts or Conclusions. Experts can provide
case-specific facts that can't be discerned by direct observation
of witnesses based on common knowledge. For example, a
chemist analyzes a substance to determine that it is cocaine.
Some case-specific facts take the form of inferences and
conclusions on ultimate issues that can be determinative of the
 case's outcome. For example, a scientist might testify that the
defendant's pharmaceutical caused the plaintiff's illness.

709

(2) Generalizations. As discussed in the Relevance and

Foundation chapters, factfinders rely on generalizations about
the world to connect evidentiary facts to essential elements
(FOC(EE)s). What if the generalizations are outside common
knowledge? Those must be supplied by experts. For example, in
a toxic tort case, an expert may have to testify about the effects
of a chemical on the human body.
An expert witness may offer an opinion of either type or both.
Everything the expert witness says on the stand will consist of
opinions of one or both of these types, as well as information relating
to the reliability of his opinions: his methodology, the facts and data
he considered, or his possible biases. The cluster of rules we will
study, FRE 702-705, all deal in one way or another with the above
aspects of expert testimony: the qualifications of an expert witness,
the reliability of the opinion, the kinds of facts that may be used, the
kinds of opinions that may be offered, and the ways that opinions
may be expressed. Although most experts by far are retained and
presented by the parties, FRE 706 authorizes the court itself to
appoint an expert witness.
The fundamental problem posed by the expert witness rules is this.
Many, perhaps the majority, of cases involve one or more important
facts that can't be perceived or fully understood by applying common
knowledge to direct sense perception. Experts are needed to
perceive such facts, or to explain generalizations needed to
understand them. Often, a party will be unable to meet its burden of
proof without such expert testimony. This raises a conundrum:
We call expert witnesses to testify about matters that are beyond the ordinary
understanding of lay people (that is both the major practical justification and a formal
legal requirement for expert testimony), and then we ask lay judges and jurors to judge
their testimony. [Samuel Gross, Expert Evidence, 1991Wis. L. Rev. 1113, 1182.]
FRE 702 and the case law applying it place a great deal of emphasis
on the judge's “gatekeeping” role. This role stems from a concern that
jurors can be overawed by experts' opinions, and are likely to have
difficulty distinguishing valid from “junk” expertise. The judge keeps
the gate by evaluating the reliability of the expert opinion as an FRE
104(a) factfinding matter before admitting it. While it is probably true
that the average judge has more formal education than the average
juror, the above quotation makes a good point: There is no guarantee
that the judge will know enough to evaluate the reliability of an expert
in nonlegal areas of specialization. As we study the specific evidence
rules dealing with experts, we should consider how well the rules deal
with that problem.

1. FRE 702
RULE 702. TESTIMONY BY EXPERT WITNESSES
A witness who is qualified as an expert by knowledge, skill, experience, training, or
education may testify in the form of an opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized knowledge will help the trier of
fact to understand the evidence or to determine a fact in issue;

710
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.

2. Explanation of FRE 702(a)

a. Scientific, Technical, or Other Specialized Knowledge

Taken together, FRE 702's introductory sentence and subpart (a)

make admissible a broad array of expert testimony. While experts
traditionally testified about scientific, technical, and medical issues,
the pragmatic phrase “other specialized knowledge” is intended to
cover any matter outside common knowledge. In addition, while
expert credentials traditionally involved advanced degrees in primarily
the “hard” sciences (chemistry, biology, medicine, etc.), FRE 702 is
written to include all potential fields of expert knowledge that might be
gained from any type of background:
The rule is broadly phrased. The fields of knowledge which may be drawn upon are not
limited merely to the “scientific” and “technical” but extend to all “specialized” knowledge.
Similarly, the expert is viewed, not in a narrow sense, but as a person qualified by
“knowledge, skill, experience, training, or education.” Thus within the scope of the rule
are not only experts in the strictest sense of the word, e.g. physicians, physicists, and
architects, but also the large group sometimes called “skilled” witnesses, such as
bankers or landowners testifying to land values. [Advisory Committee Note to FRE 702.]
Any knowledge that is not likely to be possessed by the factfinder—
i.e., that is not common knowledge—qualifies for admission under
this rule, no matter how the knowledge is obtained. A person
possessing a “skill” can testify to it and its implications, even if the
skill was gained through experience rather than formal study.
b. Help the Trier of Fact
FRE 702(a) permits only that expert testimony that will “help the
trier of fact to understand the evidence or to determine a fact in
issue[.]” This concept of helpfulness has several aspects.
Knowledge Is Relative to the Factfinder. The knowledge that
qualifies for admission is relative to the factfinder. When a potential
expert witness possesses knowledge that the factfinder is not likely to
possess, even though some other factfinder somewhere else might,
the testimony is admissible. For example, if the qualities of nitrogen
fertilizer are relevant to a case in New York City, a farmer from Iowa
knowledgeable of the matter through years of experience would
qualify as an expert, even though the farmer had never formally
studied the matter. If the trial were held in an Iowa farming
community, quite possibly no expert testimony would be admissible
because the factfinder's common knowledge and experience might
very well extend

711

to the relevant issues. It is these two factors—(1) specialized

knowledge relative to the factfinder (2) gained by experience—that
explain the court's decision in Johnson permitting Officer Huston to
give an expert opinion about tray collection from inmates.
Fact in Issue Cannot Be Determined by Common Knowledge.
Where a fact in issue can't be determined as a matter of common
knowledge applied to firsthand perception, expert opinion is
automatically helpful. (Whether it is sufficiently reliable to be admitted
into evidence is a separate question.) Some facts simply can't be
perceived by lay witnesses at all. Consider a toxic tort case in which
the plaintiff alleges that chemicals dumped by the defendant entered
the municipal water supply. No percipient witness can testify that he
saw the chemicals leach through the soil and into an underground
aquifer before making their way into the city's drinking-water wells.
Testimony of an expert in geology and groundwater flow will be
helpful—indeed necessary—to prove this fact. Similarly, expert
testimony may be necessary to supply a crucial generalization to
allow the jury to make an inference necessary to a party's burden of
proof. Suppose the plaintiff in a product liability case suffers a skin
rash that appeared several days after using defendant's household
cleanser. To link the rash to the chemicals in the cleanser may require
an expert to testify, at least as a general matter, about the likely
effects of that chemical on human skin.
Expert Testimony Sheds Light on Facts in Issue. The
helpfulness requirement can also be met in an instance where there
is a gray area between common and specialized knowledge. This sort
of gray area occurs in many cases, particularly where the specialized
knowledge arises from social science or from experience with
repeated observations of everyday life. For example, juries are asked
to determine whether a police officer used excessive force in a police
brutality case. This is considered by the law as a matter of
reasonableness based on common sense, and expert testimony is
not required. At the same time, courts are likely to allow expert
testimony on police use of force on the theory that such events are
sufficiently unusual that expert testimony can shed additional light on
the question.
 Helpfulness Requirement as a Limitation on Experts Usurping
Jury's Function. The helpfulness requirement provides a useful
limitation on expert testimony that purports to offer conclusions that
the jury is capable of reaching. This aspect of the helpfulness
requirement is more or less the same as that discussed in connection
with FRE 701. Juries are asked to draw conclusions about whether
evidentiary facts prove an essential element of the party's case.
Where that can be done as a matter of common sense and
experience, an expert opinion based on the same logical thought
process expected from the jury is properly deemed unhelpful. For
example, a police detective might testify that he has investigated over
1,000 criminal cases; that 100 of those cases went to trial; that his
judgment about the defendant's guilt or innocence was correct in 99
of those cases; and that, in his opinion, the defendant is guilty in the
current case. While the detective is no doubt an expert in criminal
investigations, it is inconceivable that this testimony would be
allowed. The most likely explanation is that it usurps the jury's role,
and is therefore unhelpful. While there is no absolute

712

bar to an expert testifying on an ultimate issue in most

circumstances (see FRE 704, discussed below), the helpfulness
requirement will frequently be used to bar such conclusions from
experts. The key question is whether the jury is capable of drawing
the ultimate conclusions from the evidence on its own.
c. A Witness Qualified as an Expert
If specialized information will help the trier of fact, the trial judge
must then determine whether the person offered to present the
information is qualified to do so. As noted above, the qualifications
need not include formal education in the subject matter. Rather, as
FRE 702 provides, one can be qualified as an expert based on
“knowledge, skill, experience, [or] training,” as well as education. As a
result, courts admit an extremely wide variety of testimony on this
basis. FBI agents have been permitted to testify to the structure of
various criminal schemes based on their law enforcement
experience. Farmers have testified to the likely value of their ruined
crops, and so on. The crucial questions are whether the proposed
witness has specialized knowledge, however obtained, and whether it
would be helpful to the jury.
d. Burden of Proof
FRE 702 should be understood as setting out criteria for the
admission of expert testimony. It is an admission rule rather than an
exclusion rule, meaning that the party seeking admission of the
testimony bears the burden of proof that the FRE 702 requirements
have been met. In theory, this might be viewed as an FRE 104(b)
foundation requirement (expert testimony is not relevant unless a
qualified expert offers reliable testimony). But FRE 104(a) includes
“any preliminary question about whether a witness is qualified,” and
this would seem to apply to expert witness qualifications. The
Supreme Court has confirmed that the admissibility of expert
testimony should be decided under FRE 104(a). See Daubert v.
Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993). In other words,
the party offering expert testimony has the burden to persuade the
trial judge that the expert is qualified and that the expert's opinions
are reliable.

3. Explanation of FRE 702(b)-(d): the Reliability Requirement

Often, the need for expert testimony and the qualifications of the
expert will be sufficiently apparent to shift the focus of dispute from
FRE 702(a) to FRE 702(b), (c), and (d). These rules work together as
an authorization for the judge to determine whether the expert's
testimony is sufficiently reliable to be admitted. The language of FRE
702(b)-(d) appears to be fairly clear and self-explanatory. For expert
testimony to be sufficiently reliable to be admitted in evidence, the
testimony must show that the expert has applied reliable analytical
methods to sufficient facts or data.
The reliability of live witness testimony is normally an FRE 104(b)
question, which the judge screens for evidence sufficient to support a
finding. Like 104(b)

713

questions, the reliability of testimony is a fact on which its relevance

depends: If an expert's testimony is unreliable, it should be
disregarded. In theory, then, the reliability of expert testimony could
be screened for evidence sufficient to support a finding: Could a
reasonable jury find the testimony reliable? Some courts seem to
analyze the question in these terms.
Nevertheless, the black letter doctrine makes clear that the
reliability of expert testimony must be treated as an FRE 104(a)
question for the judge to decide based on a preponderance of the
evidence. Perhaps this approach makes sense, for two reasons.
First, as noted above, there are significant risks that the jury may be
overawed by expertise; arguably, the judge is likely to be at least
slightly better positioned to make threshold reliability determinations.
Second, as we will see, FRE 703 allows expert testimony to rely on
hearsay and other inadmissible information. Therefore, a jury might
not be in a good position to consider the reliability of the “facts and
data” used by the expert. Whether you agree with these justifications
or not, FRE 702's reliability requirement should be viewed as an
exception to the general rule that the prima facie reliability of
testimony is an FRE 104(b) question.
Despite the apparent clarity of this rule, numerous questions arise
as to its application to certain types of experts. The most significant
case law developments regarding expert witnesses have concerned
the test that should be applied by courts to determine this reliability.
Moreover, these case law developments have a history that, as a
practitioner, you need to know to fully understand how courts
approach the question. We therefore present this material in more
traditional casebook style, using the case method.

4. Development of the FRE 702 Reliability Requirement: Daubert

and Its Progeny
a. The Frye Test
 Prior to the adoption of the FRE, federal courts nearly all applied a
test articulated in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
In Frye, the D.C. Circuit upheld the trial court's exclusion of expert
testimony based on the use of the results of an early type of lie
detection device—a systolic blood pressure test. The key language in
the opinion stated that “while courts will go a long way in admitting
expert testimony deduced from well-recognized scientific principle or
discovery, the thing from which the deduction is made must be
sufficiently established to have gained general acceptance in the
particular field in which it belongs.” Id. at 1014. The Frye opinion is
unclear about whether “the thing” that must have gained “general
acceptance” is the relationship between truth telling and blood
pressure, or the ability of an expert to measure and interpret the
changes in blood pressure, or both. Despite this ambiguity and
despite the court's failure to explain further or to cite precedent for its
holding, most federal circuits adopted the “general acceptance” test,
commonly referred to as the “Frye test.”
After the adoption of the Federal Rules, the Frye test continued to
be applied in federal courts, even though FRE 702 made no
reference to the “general acceptance” standard. As originally drafted,
FRE 702 stated:

714
If scientific, technical, or other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue, a witness qualified as an expert
by knowledge, skill, experience, training, or education, may testify thereto in the form of
an opinion or otherwise.
Given the language of FRE 702, some commentators took the
position that the Federal Rules rejected the Frye test. Lower courts
divided on the issue. The Supreme Court addressed the Frye test
and the reliability criteria in the Daubert case.
b. Daubert
If you plan to use expert witnesses in your law practice, or even to
take part in an informed discussion about the law of expert witnesses,
you have to know the Daubert case. Daubert, decided in 1993, has
been clarified by subsequent cases and an amendment to FRE 702.
Quite arguably, the extent of those clarifications and amendments are
such that Daubert has been superseded. Nevertheless, courts and
commentators invariably speak as though Daubert were a complete
statement of the controlling legal standard and the source of expert
witness law. At a minimum, Daubert represents a watershed in the
history of FRE 702. So you must read it.

DAUBERT V. MERRELL DOW PHARMACEUTICALS, INC.

509 U.S. 579 (1993)

Justice B delivered the opinion of the Court.
In this case we are called upon to determine the standard for
admitting expert scientific testimony in a federal trial.
I
Petitioners Jason Daubert and Eric Schuller are minor children born
with serious birth defects. They and their parents sued respondent in
California state court, alleging that the birth defects had been caused
by the mothers' ingestion of Bendectin, a prescription anti-nausea
drug marketed by respondent. Respondent removed the suits to
federal court on diversity grounds.
After extensive discovery, respondent moved for summary
judgment, contending that Bendectin does not cause birth defects in
humans and that petitioners would be unable to come forward with
any admissible evidence that it does. In support of its motion,
respondent submitted an affidavit of Steven H. Lamm, physician and
epidemiologist, who is a well-credentialed expert on the risks from
exposure to various chemical substances.1 Doctor Lamm stated that
he had reviewed all the literature on Bendectin and human birth
defects—more than 30 published stud

715

ies involving over 130,000 patients. No study had found Bendectin

to be a human teratogen (i.e., a substance capable of causing
malformations in fetuses). On the basis of this review, Doctor Lamm
concluded that maternal use of Bendectin during the first trimester of
pregnancy has not been shown to be a risk factor for human birth
defects.
Petitioners . . . responded to respondent's motion with the testimony
of eight experts of their own, each of whom also possessed
impressive credentials.2 These experts had concluded that Bendectin
can cause birth defects. Their conclusions were based upon “in vitro”
(test tube) and “in vivo” (live) animal studies that found a link between
Bendectin and malformations; pharmacological studies of the
chemical structure of Bendectin that purported to show similarities
between the structure of the drug and that of other substances known
to cause birth defects; and the “reanalysis” of previously published
epidemiological (human statistical) studies.
The District Court granted respondent's motion for summary
judgment. . . . The court concluded that petitioners' evidence did not
meet [the Frye] standard. Given the vast body of epidemiological data
concerning Bendectin, the court held, expert opinion which is not
based on epidemiological evidence is not admissible to establish
causation. Thus, the animal-cell studies, live-animal studies, and
chemical-structure analyses on which petitioners had relied could not
raise by themselves a reasonably disputable jury issue regarding
causation. Petitioners' epidemiological analyses, based as they were
on recalculations of data in previously published studies that had
found no causal link between the drug and birth defects, were ruled to
be inadmissible because they had not been published or subjected to
peer review.
The United States Court of Appeals for the Ninth Circuit affirmed.
Citing Frye v. United States, the court stated that . . . based on a
methodology that diverges “significantly from the procedures
accepted by recognized authorities in the field . . . cannot be shown
to be generally accepted as a reliable technique.” . . . Contending that
reanalysis is generally accepted by the scientific community only
when it is subjected to verification and scrutiny by others in the field,
the Court of Appeals rejected petitioners' reanalyses as “unpublished,
not subjected to the normal peer review process and generated solely
for use in litigation.” The court concluded that petitioners' evidence
provided an insufficient foundation to allow admission of expert
testimony that Bendectin caused their injuries and, accordingly, that
petitioners could not satisfy their burden of proving causation at trial.
We granted certiorari in light of sharp divisions among the courts
regarding the proper standard for the admission of expert testimony.

716

II
A
In the 70 years since its formulation in the Frye case, the “general
acceptance” test has been the dominant standard for determining the
admissibility of novel scientific evidence at trial. . . . The Frye test has
its origin in a short and citation-free 1923 decision concerning the
admissibility of evidence derived from a systolic blood pressure
deception test, a crude precursor to the polygraph machine. In what
has become a famous (perhaps infamous) passage, the then Court of
Appeals for the District of Columbia described the device and its
operation and declared:
Just when a scientific principle or discovery crosses the line between the experimental
and demonstrable stages is difficult to define. Somewhere in this twilight zone the
evidential force of the principle must be recognized, and while courts will go a long way
in admitting expert testimony deduced from a well-recognized scientific principle or
discovery, the thing from which the deduction is made must be sufficiently established to
have gained general acceptance in the particular field in which it belongs.
Because the deception test had “not yet gained such standing and
scientific recognition among physiological and psychological
authorities as would justify the courts in admitting expert testimony
deduced from the discovery, development, and experiments thus far
made,” evidence of its results was ruled inadmissible.
[Petitioners] . . . contend that the Frye test was superseded by the
adoption of the Federal Rules of Evidence. We agree. . . .
Here there is a specific Rule that speaks to the contested issue.
Rule 702, governing expert testimony, provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue, a witness qualified as an expert
 by knowledge, skill, experience, training, or education, may testify thereto in the form of
an opinion or otherwise.*
Nothing in the text of this Rule establishes “general acceptance” as
an absolute prerequisite to admissibility. . . . The drafting history
makes no mention of Frye, and a rigid “general acceptance”
requirement would be at odds with the “liberal thrust” of the Federal
Rules and their general approach of relaxing the traditional barriers to
“opinion” testimony. . . . [Frye's] austere standard, absent from and
incompatible with the Federal Rules of Evidence, should not be
applied in federal trials.
B
That the Frye test was displaced by the Rules of Evidence does not
mean, however, that the Rules themselves place no limits on the
admissibility of purportedly scientific evidence. Nor is the trial judge
disabled from screening such evidence. To the contrary, under the
Rules the trial judge must ensure that any and all scientific testimony
or evidence admitted is not only relevant, but reliable.

717

. . . [Rule 702] clearly contemplates some degree of regulation of

the subjects and theories about which an expert may testify. . . . The
subject of an expert's testimony must be “scientific . . . knowledge.”
The adjective “scientific” implies a grounding in the methods and
procedures of science. Similarly, the word “knowledge” connotes
more than subjective belief or unsupported speculation. The term
“applies to any body of known facts or to any body of ideas inferred
from such facts or accepted as truths on good grounds.” Webster's
Third New International Dictionary 1252 (1986). Of course, it would
be unreasonable to conclude that the subject of scientific testimony
must be “known” to a certainty; arguably, there are no certainties in
science. But, in order to qualify as “scientific knowledge,” an
inference or assertion must be derived by the scientific method.
Proposed testimony must be supported by appropriate validation—
i.e., “good grounds,” based on what is known. In short, the
requirement that an expert's testimony pertain to “scientific
knowledge” establishes a standard of evidentiary reliability.3
Rule 702 further requires that the evidence or testimony “assist the
trier of fact to understand the evidence or to determine a fact in
issue.” This condition goes primarily to relevance. . . . The
consideration has been aptly described . . . as one of “fit.” “Fit” is not
always obvious, and scientific validity for one purpose is not
necessarily scientific validity for other, unrelated purposes. . . . The
study of the phases of the moon, for example, may provide valid
scientific “knowledge” about whether a certain night was dark, and if
darkness is a fact in issue, the knowledge will assist the trier of fact.
However (absent creditable grounds supporting such a link),
evidence that the moon was full on a certain night will not assist the
trier of fact in determining whether an individual was unusually likely
to have behaved irrationally on that night. Rule 702's “helpfulness”
standard requires a valid scientific connection to the pertinent inquiry
as a precondition to admissibility.
That these requirements are embodied in Rule 702 is not surprising.
Unlike an ordinary witness, see Rule 701, an expert is permitted wide
latitude to offer opinions, including those that are not based on first-
hand knowledge or observation. See Rules 702 and 703.
Presumably, this relaxation of the usual requirement of first-hand
knowledge—a rule which represents “a 'most pervasive
manifestation' ” of the common law insistence upon 'the most reliable
sources of information,' ” Advisory Committee's Notes on Fed. Rule
Evid. 602—is premised on an assumption that the expert's opinion
will have a reliable basis in the knowledge and experience of his
discipline.

718
C
Faced with a proffer of expert scientific testimony, then, the trial judge
must [make] a preliminary assessment of whether the reasoning or
methodology underlying the testimony is scientifically valid and of
whether that reasoning or methodology properly can be applied to the
facts in issue. We are confident that federal judges possess the
capacity to undertake this review. Many factors will bear on the
inquiry, and we do not presume to set out a definitive checklist or test.
But some general observations are appropriate.
Ordinarily, a key question to be answered in determining whether a
theory or technique is scientific knowledge that will assist the trier of
fact will be whether it can be (and has been) tested. K. Popper,
Conjectures and Refutations: The Growth of Scientific Knowledge 37
(5th ed. 1989) (“[T]he criterion of the scientific status of a theory is its
falsifiability, or refutability, or testability”).
Another pertinent consideration is whether the theory or technique
has been subjected to peer review and publication. Publication (which
is but one element of peer review) is not a sine qua non of
admissibility; it does not necessarily correlate with reliability, see S.
Jasanoff, The Fifth Branch: Science Advisors as Policymakers 61-76
(1990), and in some instances well-grounded but innovative theories
will not have been published, see Horrobin, The Philosophical Basis
of Peer Review and the Suppression of Innovation, 263 J. Am. Med.
Assn. 1438 (1990). Some propositions, moreover, are too particular,
too new, or of too limited interest to be published. But submission to
the scrutiny of the scientific community is a component of “good
science,” in part because it increases the likelihood that substantive
flaws in methodology will be detected. The fact of publication (or lack
thereof) in a peer-reviewed journal thus will be a relevant, though not
dispositive, consideration in assessing the scientific validity of a
particular technique or methodology on which an opinion is premised.
Additionally, in the case of a particular scientific technique, the court
ordinarily should consider the known or potential rate of error, and the
existence and maintenance of standards controlling the technique's
operation.
Finally, “general acceptance” can yet have a bearing on the inquiry.
A “reliability assessment does not require, although it does permit,
explicit identification of a relevant scientific community and an
express determination of a particular degree of acceptance within that
community.” United States v. Downing, 753 F.2d, at 1238.
Widespread acceptance can be an important factor in ruling particular
evidence admissible, and “a known technique that has been able to
attract only minimal support within the community,” Downing, supra,
may properly be viewed with skepticism.
The inquiry envisioned by Rule 702 is, we emphasize, a flexible
one. Its overarching subject is the scientific validity—and thus the
evidentiary relevance and reliability—of the principles that underlie a
proposed submission. The focus, of course, must be solely on
principles and methodology, not on the conclusions that they
generate.
Throughout, a judge assessing a proffer of expert scientific
testimony under Rule 702 should also be mindful of other applicable
rules. Rule 703 provides that expert opinions based on otherwise
inadmissible hearsay are to be admitted only if the facts or data are
“of a type reasonably relied upon by experts in the particular field in
forming opinions or inferences upon the subject.” Rule 706 allows the
court at its

719

discretion to procure the assistance of an expert of its own

choosing. Finally, Rule 403 permits the exclusion of relevant evidence
“if its probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the jury . . . .”
Judge Weinstein has explained: “Expert evidence can be both
powerful and quite misleading because of the difficulty in evaluating
it. Because of this risk, the judge in weighing possible prejudice
against probative force under Rule 403 of the present rules exercises
more control over experts than over lay witnesses.”
III
We conclude by briefly addressing what appear to be two
underlying concerns of the parties and amici in this case. Respondent
expresses apprehension that abandonment of “general acceptance”
as the exclusive requirement for admission will result in a “free-for-all”
in which befuddled juries are confounded by absurd and irrational
pseudoscientific assertions. In this regard respondent seems to us to
be overly pessimistic about the capabilities of the jury, and of the
adversary system generally. Vigorous cross-examination,
presentation of contrary evidence, and careful instruction on the
burden of proof are the traditional and appropriate means of attacking
shaky but admissible evidence. Additionally, in the event the trial
court concludes that the scintilla of evidence presented supporting a
position is insufficient to allow a reasonable juror to conclude that the
position more likely than not is true, the court remains free to direct a
judgment, Fed. Rule Civ. Proc. 50(a), and likewise to grant summary
judgment, Fed. Rule Civ. Proc. 56. These conventional devices,
rather than wholesale exclusion under an uncompromising “general
acceptance” test, are the appropriate safeguards where the basis of
scientific testimony meets the standards of Rule 702.
Petitioners and, to a greater extent, their amici exhibit a different
concern. They suggest that recognition of a screening role for the
judge that allows for the exclusion of “invalid” evidence will sanction a
stifling and repressive scientific orthodoxy and will be inimical to the
search for truth. It is true that open debate is an essential part of both
legal and scientific analyses. Yet there are important differences
between the quest for truth in the courtroom and the quest for truth in
the laboratory. Scientific conclusions are subject to perpetual revision.
Law, on the other hand, must resolve disputes finally and quickly. The
scientific project is advanced by broad and wide-ranging
consideration of a multitude of hypotheses, for those that are
incorrect will eventually be shown to be so, and that in itself is an
advance. Conjectures that are probably wrong are of little use,
however, in the project of reaching a quick, final, and binding legal
judgment—often of great consequence—about a particular set of
events in the past. We recognize that in practice, a gatekeeping role
for the judge, no matter how flexible, inevitably on occasion will
prevent the jury from learning of authentic insights and innovations.
That, nevertheless, is the balance that is struck by Rules of Evidence
designed not for the exhaustive search for cosmic understanding but
for the particularized resolution of legal disputes.
IV
 To summarize: “general acceptance” is not a necessary
precondition to the admissibility of scientific evidence under the
Federal Rules of Evidence, but the Rules of

720

Evidence—especially Rule 702—do assign to the trial judge the

task of ensuring that an expert's testimony both rests on a reliable
foundation and is relevant to the task at hand. Pertinent evidence
based on scientifically valid principles will satisfy those demands.
The inquiries of the District Court and the Court of Appeals focused
almost exclusively on “general acceptance,” as gauged by publication
and the decisions of other courts. Accordingly, the judgment of the
Court of Appeals is vacated and the case is remanded for further
proceedings consistent with this opinion.
It is so ordered.
Chief Justice R , with whom Justice S joins,
concurring in part and dissenting in part. . . .
[I] defer to no one in my confidence in federal judges; but I am at a
loss to know what is meant when it is said that the scientific status of
a theory depends on its “falsifiability,” and I suspect some of them will
be, too. I do not doubt that Rule 702 confides to the judge some
gatekeeping responsibility in deciding questions of the admissibility of
proffered expert testimony. But I do not think it imposes on them
either the obligation or the authority to become amateur scientists in
order to perform that role. I think the Court would be far better
advised in this case . . .to leave the further development of this
important area of the law to future cases.

NOTES AND QUESTIONS

1. Daubert was decided under a pre-2000 version of Rule 702. In
2000, the rule was amended “in response to Daubert,” and
consistently with it, though without intending “to codify” Daubert. See
Advisory Committee Notes on 2000 Amendment to Fed. R. Evid. 702.
The new rule, and excerpts from the Advisory Committee Notes, are
presented following the Kumho Tire case, below.
2. Does it make sense to apply the four Daubert factors to expert
testimony that is not based on “science”?
3. What would be the consequences of using the Frye rule in tort
cases claiming that chemical exposures caused diseases or cellular-
level physical injuries?
4. Is the Daubert rule more “liberal” toward admission of expert
testimony than the Frye rule? Note that “general acceptance” is
retained as one of the four Daubert factors. The immediate reaction
to Daubert was that it loosened the standards of admissibility for
expert testimony, but at least some lower federal courts have tended
to interpret Daubert as justification to take long, hard looks at expert
witnesses being proffered. Some commentators detected a trend in
reported cases suggesting that courts have increasingly declined to
admit the testimony. But see Advisory Committee Note to FRE 702—
2000 Amendment (“A review of the caselaw after Daubert shows that
the rejection of expert testimony is the exception rather than the rule.
Daubert did not work a sea change over federal evidence law.”). The
post–Supreme Court history of the Daubert litigation itself is
instructive. On remand, the Ninth Circuit, now applying Daubert,
reached the same conclusion it had previously that the evidence was
inadmissible. Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d
1311 (9th

721

Cir. 1995). In reaching that conclusion, however, the court also

considered a number of factors in addition to the Supreme Court's
list. One was whether the expert was testifying on the basis of
research conducted independently of the litigation. How important is
this criterion? Consider how much research is now conducted for hire
in one way or another. See also Edward K. Cheng & Albert H. Yoon,
Does Frye or Daubert Matter? A Study of Scientific Admissibility
Standards, 91 Virginia L. Rev. 471 (2005) (using a jurisdiction-
removal criterion for ascertaining tort defendants' revealed
preferences to show that the shift from Frye to Daubert was
operationally insignificant).
5. The actual holding in Frye excluding the result of lie detector
tests became for a time the universal rule in this country. This rule
began to slowly change in the mid-1990s with several decisions
allowing polygraph evidence coming in the wake of Daubert. A
number of jurisdictions began admitting the evidence, probably
because a per se rule of exclusion seemed contradictory to the new
statement of the standard which was enunciated in Daubert. For an
influential, pre-Daubert decision, see, e.g., United States v.
Piccinonna, 885 F.2d 1529 (11th Cir. 1989). Piccinonna held that
polygraph results would be admissible to impeach or corroborate
testimony if three conditions were met: (1) notice of intent to use the
evidence must be given to the opposition; (2) the opposing side must
be given an opportunity to administer its own test; and (3)
admissibility of the evidence is to be governed by the normal rules for
the admissibility of corroboration and impeachment evidence, so that,
for example, corroborating evidence would not be admissible until a
witness's character for truthfulness has been attacked under FRE
608. The 11th Circuit has continued to adhere to these three
conditions post-Daubert. See United States v. Henderson, 409 F.3d
1293 (11th Cir. 2005) (stating that Piccinonna's ruling is still valid
post-Daubert). In United States v. Posado, 57 F.3d 428 (5th Cir.
1995), the court held that the results of polygraph examinations may
be admissible in certain criminal cases regardless of stipulations
(here one was offered but rejected). The court read Daubert as
liberalizing the admission of scientific evidence, and concluded that
the 70 percent to 90 percent accuracy rate now achieved with
polygraphs exceeded the level of reliability of much evidence
presently admitted. The court expressed concern about the
prejudicial effect of such evidence, but found it not to be a problem
here because the issue was who to believe, the state or the
defendants, at a suppression hearing where dramatically different
stories were being told and where other evidence cast doubt on the
state's version of events. Despite these decisions, courts in some
jurisdictions are still regularly excluding polygraph evidence. See
United States v. Gill, 513 F.3d 836 (8th Cir. 2008) (“polygraph
evidence is disfavored”); United States v. Prince-Oyibo, 320 F.3d 494
(4th Cir. 2003) (adhering to per se inadmissibility standard for
polygraph results); United States v. Thomas, 167 F.3d 299, 308 (6th
Cir. 1999) (polygraph evidence “generally disfavor[ed]”). See also D.
Michael Risinger, Navigating Expert Reliability: Are Criminal
Standards of Certainty Being Left on the Dock?, 64 Alb. L. Rev. 99
(2000); David C. Raskin, et al., The Scientific Status of Research on
Polygraph Techniques: The Case for Polygraph Tests, 19-2.0, in 1
Modern Science Evidence: The Law and Science of Expert Testimony
(David L. Faigman, David H. Kaye, Michael J. Saks & Joseph
Sanders eds., 2002 & Supp. 2003).

722

6. Daubert stimulated, and continues to stimulate, an avalanche of

academic writing on the topic of scientific evidence. See, e.g., David
E. Bernstein, The Misbegotten Judicial Resistance to the Daubert
Revolution, 89 Notre Dame L. Rev. 27, 30, 67 (2013); Ronald J. Allen
& Esfand Nafisi, Daubert and Its Discontents, 76 Brook. L. Rev. 131
(2010); Cheng & Yoon, supra; Jennifer L. Groscup et al., The Effects
of Daubert on the Admissibility of Expert Testimony in State and
Federal Criminal Cases, 8 Psy. Pub. Poly. & L. 339 (2002); Joseph
Sanders et al., Legal Perceptions of Science and Expert Knowledge,
8 Psy. Pub. Poly. & L. 139 (2002); Jeffrey L. Harrison,
Reconceptualizing the Expert Witness: Social Cost, Current Controls
and Proposed Responses, 18 Yale J. on Reg. 253 (2001); Brandon L.
Jensen, Litigating the Crossroads Between Sweet Home and
Daubert, 24 Va. L. Rev. 169 (2000); Derek L. Mogck, Are We There
Yet? Refining the Test for Expert Testimony Through Daubert, Kumho
Tire and Proposed Federal Rule of Evidence 702, 33 Conn. L. Rev.
303 (2000).
c. Joiner

Chief Justice Rehnquist dissented in Daubert from the idea that

judges could adequately act as gatekeepers for expert testimony, but
within just a few years, he seems to have accommodated himself to
the idea in the next major Supreme Court decision on expert
witnesses, General Electric Co. v. Joiner. Use the following questions
to focus your reading of the case:
1. What is the central legal principle articulated by the Joiner
decision?
2. What does it mean to say that the district court did not “abuse its
discretion” in Joiner? Does that mean that the district court's
ruling excluding plaintiff's expert was “correct”?
3. How does Daubert apply to this case? Does it help explain what
was wrong with the expert's opinion?

GENERAL ELECTRIC CO. V. JOINER

522 U.S. 136 (1997)

Chief Justice R delivered the opinion of the Court.
[Respondent Robert Joiner worked as an electrician in the Water &
Light Department of Thomasville, Georgia (City) for several years,
during which his work exposed him to repeated contact with
chemicals containing polychlorinated biphenyls (PCBs). After being
diagnosed with lung cancer in 1991, Joiner, a smoker, sued various
manufacturers of the chemicals in Georgia state court, claiming that
his exposure to PCBs contributed to his cancer. Petitioners (the
defendants) removed the case to federal court. The district court
granted summary judgment for the defendants because the testimony
of Joiner's experts had failed to show that there was a link between
exposure to PCBs and lung cancer. The court believed that the
testimony of respondent's experts to the contrary did not rise above
“subjective belief or unsupported speculation,” and was therefore
inadmissible.

723

The Court of Appeals for the Eleventh Circuit reversed. It held that
“[b]ecause the Federal Rules of Evidence governing expert testimony
display a preference for admissibility, we apply a particularly stringent
standard of review to the trial judge's exclusion of expert testimony.”
Applying that standard, the Court of Appeals held that the District
Court had erred in excluding the testimony of Joiner's expert
witnesses, because a district court should limit its role to determining
the “legal reliability of proffered expert testimony, leaving the jury to
decide the correctness of competing expert opinions.”]
We have held that abuse of discretion is the proper standard of
review of a district court's evidentiary rulings.. . . [The] Court of
Appeals erred in its review of the exclusion of Joiner's experts'
testimony. In applying an overly “stringent” review to that ruling, it
failed to give the trial court the deference that is the hallmark of
abuse-of-discretion review. . . .
III
. . . [A] proper application of the correct standard of review here
indicates that the District Court did not abuse its discretion. Joiner's
theory of liability was that his exposure to PCBs and their derivatives
“promoted” his development of small-cell lung cancer. In support of
that theory he proffered the deposition testimony of expert witnesses.
Dr. Arnold Schecter testified that he believed it “more likely than not
that Mr. Joiner's lung cancer was causally linked to cigarette smoking
and PCB exposure.” Dr. Daniel Teitelbaum testified that Joiner's “lung
cancer was caused by or contributed to in a significant degree by the
materials with which he worked.”
Petitioners contended that the statements of Joiner's experts
regarding causation were nothing more than speculation. Petitioners
criticized the testimony of the experts in that it was “not supported by
epidemiological studies . . . [and was] based exclusively on isolated
studies of laboratory animals.” Joiner responded by claiming that his
experts had identified “relevant animal studies which support their
opinions.” He also directed the court's attention to four
epidemiological studies on which his experts had relied.
[Epidemiological studies examine the pattern of disease in human
populations.]
 The District Court agreed with petitioners that the animal studies on
which respondent's experts relied did not support his contention that
exposure to PCBs had contributed to his cancer. The studies involved
infant mice that had developed cancer after being exposed to PCB's.
The infant mice in the studies had had massive doses of PCBs
injected directly into their peritoneums or stomachs. Joiner was an
adult human being whose alleged exposure to PCB's was far less
than the exposure in the animal studies. The PCBs were injected into
the mice in a highly concentrated form. The fluid with which Joiner
had come into contact generally had a much smaller PCB
concentration of between 0-to-500 parts per million. The cancer that
these mice developed was alveologenic adenomas; Joiner had
developed small-cell carcinomas. No study demonstrated that adult
mice developed cancer after being exposed to PCBs. One of the
experts admitted that no study had demonstrated that PCBs lead to
cancer in any other species.
Respondent failed to reply to this criticism. Rather than explaining
how and why the experts could have extrapolated their opinions from
these seemingly far-removed

724

animal studies, respondent chose “to proceed as if the only issue

[was] whether animal studies can ever be a proper foundation for an
expert's opinion.” Of course, whether animal studies can ever be a
proper foundation for an expert's opinion was not the issue. The issue
was whether these experts' opinions were sufficiently supported by
the animal studies on which they purported to rely. The studies were
so dissimilar to the facts presented in this litigation that it was not an
abuse of discretion for the District Court to have rejected the experts'
reliance on them.
The District Court also concluded that the four epidemiological
studies on which respondent relied were not a sufficient basis for the
experts' opinions. The first such study involved workers at an Italian
capacitor plant who had been exposed to PCBs. The authors noted
that lung cancer deaths among ex-employees at the plant were
higher than might have been expected, but concluded that “there
were apparently no grounds for associating lung cancer deaths
(although increased above expectations) and exposure in the plant.”
Given that [the study was] unwilling to say that PCB exposure had
caused cancer among the workers they examined, their study did not
support the experts' conclusion that Joiner's exposure to PCBs
caused his cancer.
The second study . . . . found that the incidence of lung cancer
deaths among [the subjects] was somewhat higher than would
ordinarily be expected. The increase, however, was not statistically
significant and the authors of the study did not suggest a link between
the increase in lung cancer deaths and the exposure to PCBs. The
third and fourth studies were likewise of no help. . . .
Respondent points to Daubert's language that the “focus, of course,
must be solely on principles and methodology, not on the conclusions
that they generate.” He claims that because the District Court's
disagreement was with the conclusion that the experts drew from the
studies, the District Court committed legal error and was properly
reversed by the Court of Appeals. But conclusions and methodology
are not entirely distinct from one another. Trained experts commonly
extrapolate from existing data. But nothing in either Daubert or the
Federal Rules of Evidence requires a district court to admit opinion
evidence that is connected to existing data only by the ipse dixit4 of
the expert. A court may conclude that there is simply too great an
analytical gap between the data and the opinion proffered. That is
what the District Court did here, and we hold that it did not abuse its
discretion in so doing. . . .
. . . Whether Joiner was exposed to furans and dioxins, and whether
if there was such exposure, the opinions of Joiner's experts would
then be admissible, remain open questions. We accordingly reverse
the judgment of the Court of Appeals and remand this case for
proceedings consistent with this opinion.

NOTES AND QUESTIONS

 1. A central issue in appellate procedure is the applicable “standard
of review.” This refers to the degree of scrutiny or deference that an
appellate court will apply when reviewing the decision of the trial
court. Nondeferential review (called “de

725

novo” review in the federal system, meaning “from scratch” or

“anew”) means that the appellate court will redecide the question
without giving any weight to the lower court's decision: It will
substitute its judgment for that of the district court. Deferential review
means that the appellate court will give latitude to the lower court's
decision, and ask whether it was reasonable: that is, within a range in
which reasonable minds could disagree. A reasonable decision will
be upheld on appeal under such a standard even if the appellate
judges would themselves have decided the matter differently had
they been the trial judge. Which standard was applied in Joiner?
2. The last two sentences of the “ipse dixit” paragraph are a crucial
aspect of Joiner. Try to articulate in your own words what the Court
meant.
3. Does Joiner stand for the proposition that PCBs do not cause
lung cancer, and that the opinion of any expert who claims otherwise
will be excluded from evidence in federal courts?
d. Kumho Tire
Daubert explicitly dealt only with scientific evidence. Immediately
following the case, the circuits split on how, or whether, Daubert
applied to “technical or other specialized knowledge.” The Court
addressed this issue in the following case involving a tire blowout.
Consider the following questions to focus your reading of the case:
1. What is the central legal principle articulated by Kumho Tire?
2. Does Daubert apply to cases that do not involve “scientific”
knowledge? If so, how? Do the four Daubert factors apply or
not?
3. What is the trial judge's role in evaluating expert testimony?
 KUMHO TIRE COMPANY, LTD. V. CARMICHAEL

526 U.S. 137 (1999)

Justice B delivered the opinion of the Court.
. . . [This] case requires us to decide how Daubert applies to the
testimony of engineers and other experts who are not scientists. We
conclude that Daubert's general holding—setting forth the trial judge's
general “gatekeeping” obligation—applies not only to testimony
based on “scientific” knowledge, but also to testimony based on
“technical” and “other specialized” knowledge. See Fed. Rule Evid.
702. We also conclude that a trial court may consider one or more of
the more specific factors that Daubert mentioned when doing so will
help determine that testimony's reliability. But, as the Court stated in
Daubert, the test of reliability is “flexible,” and Daubert's list of specific
factors neither necessarily nor exclusively applies to all experts or in
every case. Rather, the law grants a district court the same broad
latitude when it decides how to determine reliability as it enjoys in
respect to its ultimate reliability determination. Applying these
standards, we determine that the District Court's decision in this case
—not to admit certain expert testimony—was within its discretion and
therefore lawful.

726

I
[The Carmichaels brought a diversity suit against the manufacturer
and distributor of a tire that blew out while the Carmichaels were
driving their minivan, causing the death of one passenger and severe
injuries to other passengers. The plaintiff's claim that the tire was
defective rested in significant part on the testimony of their tire failure
analysis expert, Dennis Carlson. It was undisputed that the blowout
was caused by a separation of the tire tread from the inner steel-
belted “carcass” of the tire. However, the defendants disputed
Carlson's conclusion that a defect caused the separation. This
conclusion was based on Carlson's belief that a design or
manufacturing defect is probably the cause of such a separation
whenever the blown-out tire in question has fewer than two of the
following four physical signs of “overdeflection” (essentially, car-owner
misuse) of the tire: (a) tread wear on the tire's shoulder that is greater
than the tread wear along the tire's center; (b) signs of a “bead
groove,” where the beads have been pushed too hard against the
bead seat on the inside of the tire's rim; (c) sidewalls of the tire with
physical signs of deterioration, such as discoloration; and/or (d)
marks on the tire's rim flange.]
Carlson added that he had inspected the tire in question. He
conceded that the tire to a limited degree showed greater wear on the
shoulder than in the center, some signs of “bead groove,” some
discoloration, a few marks on the rim flange, and inadequately filled
puncture holes (which can also cause heat that might lead to
separation). But, in each instance, he testified that the symptoms
were not significant, and he explained why he believed that they did
not reveal overdeflection. For example, the extra shoulder wear, he
said, appeared primarily on one shoulder, whereas an overdeflected
tire would reveal equally abnormal wear on both shoulders. Carlson
concluded that the tire did not bear at least two of the four
overdeflection symptoms, nor was there any less obvious cause of
separation; and since neither overdeflection nor the punctures
caused the blowout, a defect must have done so.
[Kumho Tire moved for summary judgment, arguing that Carlson's
testimony should be excluded from evidence because his
methodology failed Rule 702's reliability requirement; and without
Carlson's testimony, plaintiff would be unable to prove that a
manufacturing or design defect caused the blow-out and the injuries.
The district court agreed, excluded Carlson's testimony, and
dismissed the case. The Eleventh Circuit reversed, holding that
Carlson's testimony, which it viewed as relying on experience rather
than scientific methodology, “falls outside the scope of Daubert,” that
“the district court erred as a matter of law by applying Daubert in this
case,” and that the case must be remanded for further (non-Daubert-
type) consideration under Rule 702.]
 . . .We granted certiorari in light of uncertainty among the lower
courts about whether, or how, Daubert applies to expert testimony
that might be characterized as based not upon “scientific” knowledge,
but rather upon “technical” or “other specialized.”
II
A
In Daubert, this Court held that Federal Rule of Evidence 702
imposes a special obligation upon a trial judge to “ensure that any
and all scientific testimony . . . is not

727

only relevant, but reliable.” The initial question before us is whether

this basic gatekeeping obligation applies only to “scientific” testimony
or to all expert testimony. We, like the parties, believe that it applies to
all expert testimony.
For one thing, Rule 702 itself says:
If scientific, technical, or other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue, a witness qualified as an expert
by knowledge, skill, experience, training, or education, may testify thereto in the form of
an opinion or otherwise.

This language makes no relevant distinction between “scientific”

knowledge and “technical” or “other specialized” knowledge. It makes
clear that any such knowledge might become the subject of expert
testimony. In Daubert, the Court . . . referred only to “scientific”
knowledge . . . [but only] “because that was the nature of the
expertise” at issue.
Neither is the evidentiary rationale that underlay the Court's basic
Daubert “gatekeeping” determination limited to “scientific” knowledge.
Daubert pointed out that Federal Rules 702 and 703 grant expert
witnesses testimonial latitude unavailable to other witnesses on the
“assumption that the expert's opinion will have a reliable basis in the
knowledge and experience of his discipline.” The Rules grant that
latitude to all experts, not just to “scientific” ones.
Finally, it would prove difficult, if not impossible, for judges to
administer evidentiary rules under which a gatekeeping obligation
depended upon a distinction between “scientific” knowledge and
“technical” or “other specialized” knowledge. There is no clear line
that divides the one from the others. . . . Neither is there a convincing
need to make such distinctions. Experts of all kinds tie observations
to conclusions through the use of what Judge Learned Hand called
“general truths derived from . . . specialized experience.” And whether
the specific expert testimony focuses upon specialized observations,
the specialized translation of those observations into theory, a
specialized theory itself, or the application of such a theory in a
particular case, the expert's testimony often will rest “upon an
experience confessedly foreign in kind to [the jury's] own.” The trial
judge's effort to assure that the specialized testimony is reliable and
relevant can help the jury evaluate that foreign experience, whether
the testimony reflects scientific, technical, or other specialized
knowledge.
We conclude that Daubert's general principles apply to the expert
matters described in Rule 702. The Rule, in respect to all such
matters, “establishes a standard of evidentiary reliability.” It “requires
a valid . . . connection to the pertinent inquiry as a precondition to
admissibility.” Id., at 592, 113 S. Ct. 2786. And where such
testimony's factual basis, data, principles, methods, or their
application are called sufficiently into question, see Part III, infra, the
trial judge must determine whether the testimony has “a reliable basis
in the knowledge and experience of [the relevant] discipline.” 509
U.S. at 592, 113 S. Ct. 2786.
B
Petitioners ask more specifically whether a trial judge determining
the “admissibility of an engineering expert's testimony” may consider
several more specific factors

728

that Daubert said might “bear on” a judge's gatekeeping

determination. These factors include:
— Whether a “theory or technique . . . can be (and has been)
tested”;
— Whether it “has been subjected to peer review and publication”;
— Whether, in respect to a particular technique, there is a high
“known or potential rate of error” and whether there are
“standards controlling the technique's operation”; and
— Whether the theory or technique enjoys “general acceptance”
within a “relevant scientific community.”
Emphasizing the word “may” in the question, we answer that
question yes.
Engineering testimony rests upon scientific foundations, the
reliability of which will be at issue in some cases. In other cases, the
relevant reliability concerns may focus upon personal knowledge or
experience. As the Solicitor General points out, there are many
different kinds of experts, and many different kinds of expertise. See
Brief for United States as Amicus Curiae 18–19, and n.5 (citing cases
involving experts in drug terms, handwriting analysis, criminal modus
operandi, land valuation, agricultural practices, railroad procedures,
attorney's fee valuation, and others). Our emphasis on the word
“may” thus reflects Daubert's description of the Rule 702 inquiry as “a
flexible one.” Daubert makes clear that the factors it mentions do not
constitute a “definitive checklist or test.” And Daubert adds that the
gatekeeping inquiry must be “'tied to the facts'” of a particular “case.”
We agree with the Solicitor General that “[t]he factors identified in
Daubert may or may not be pertinent in assessing reliability,
depending on the nature of the issue, the expert's particular
expertise, and the subject of his testimony.” The conclusion, in our
view, is that we can neither rule out, nor rule in, for all cases and for
all time the applicability of the factors mentioned in Daubert, nor can
we now do so for subsets of cases categorized by category of expert
or by kind of evidence. Too much depends upon the particular
circumstances of the particular case at issue. . . .
At the same time, and contrary to the Court of Appeals' view, some
of Daubert's questions can help to evaluate the reliability even of
experience-based testimony. In certain cases, it will be appropriate for
the trial judge to ask, for example, how often an engineering expert's
experience-based methodology has produced erroneous results, or
whether such a method is generally accepted in the relevant
engineering community. Likewise, it will at times be useful to ask even
of a witness whose expertise is based purely on experience, say, a
perfume tester able to distinguish among odors at a sniff, whether his
preparation is of a kind that others in the field would recognize as
acceptable.
We must therefore disagree with the Eleventh Circuit's holding that
a trial judge may ask questions of the sort Daubert mentioned only
where an expert “relies on the application of scientific principles,” but
not where an expert relies “on skill- or experience-based
observation.” We do not believe that Rule 702 creates a schematism
that segregates expertise by type while mapping certain kinds of
questions to certain kinds of experts. Life and the legal cases that it
generates are too complex to warrant so definitive a match.

729

To say this is not to deny the importance of Daubert's gatekeeping

requirement. The objective of that requirement is to ensure the
reliability and relevancy of expert testimony. It is to make certain that
an expert, whether basing testimony upon professional studies or
personal experience, employs in the courtroom the same level of
intellectual rigor that characterizes the practice of an expert in the
relevant field. Nor do we deny that, as stated in Daubert, the
particular questions that it mentioned will often be appropriate for use
in determining the reliability of challenged expert testimony. Rather,
we conclude that the trial judge must have considerable leeway in
deciding in a particular case how to go about determining whether
particular expert testimony is reliable. That is to say, a trial court
should consider the specific factors identified in Daubert where they
are reasonable measures of the reliability of expert testimony.
[Our] opinion in Joiner makes clear that a court of appeals is to
apply an abuse-of-discretion standard when it “review[s] a trial court's
decision to admit or exclude expert testimony.” That standard applies
as much to the trial court's decisions about how to determine
reliability as to its ultimate conclusion. Otherwise, the trial judge
would lack the discretionary authority needed both to avoid
unnecessary “reliability” proceedings in ordinary cases where the
reliability of an expert's methods is properly taken for granted, and to
require appropriate proceedings in the less usual or more complex
cases where cause for questioning the expert's reliability arises. . . .
III
We further explain the way in which a trial judge “may” consider
Daubert's factors by applying these considerations to the case at
hand, a matter that has been briefed exhaustively by the parties and
their 19 amici. The District Court did not doubt Carlson's
qualifications, which included a masters degree in mechanical
engineering, ten years' work at Michelin America, Inc., and testimony
as a tire failure consultant in other tort cases. Rather, it excluded the
testimony because, despite those qualifications, it initially doubted,
and then found unreliable, “the methodology employed by the expert
in analyzing the data obtained in the visual inspection, and the
scientific basis, if any, for such an analysis.” . . . It fell outside the
range where experts might reasonably differ, and where the jury must
decide among the conflicting views of different experts, even though
the evidence is “shaky.” In our view, the doubts that triggered the
District Court's initial inquiry here were reasonable, as was the court's
ultimate conclusion.
[The] specific issue before the court was not the reasonableness in
general of a tire expert's use of a visual and tactile inspection to
determine whether overdeflection had caused the tire's tread to
separate from its steel-belted carcass. Rather, it was the
reasonableness of using such an approach, along with Carlson's
particular method of analyzing the data thereby obtained, . . . . could
reliably determine the cause of this tire's separation. . . .
[The] transcripts of Carlson's depositions support both the trial
court's initial uncertainty and its final conclusion. Those transcripts
cast considerable doubt upon the reliability of both the explicit theory
(about the need for two signs of abuse) and the implicit proposition
(about the significance of visual inspection in this case).

730

Among other things, the expert could not say whether the tire had
traveled more than 10, or 20, or 30, or 40, or 50 thousand miles,
adding that 6,000 miles was “about how far” he could “say with any
certainty.” The court could reasonably have wondered about the
reliability of a method of visual and tactile inspection sufficiently
precise to ascertain with some certainty the abuse-related
significance of minute shoulder/center relative tread wear differences,
but insufficiently precise to tell “with any certainty” from the tread wear
whether a tire had traveled less than 10,000 or more than 50,000
miles. And these concerns might have been augmented by Carlson's
repeated reliance on the “subjective[ness]” of his mode of analysis in
response to questions seeking specific information regarding how he
could differentiate between a tire that actually had been overdeflected
and a tire that merely looked as though it had been. They would have
been further augmented by the fact that Carlson said he had
inspected the tire itself for the first time the morning of his first
deposition, and then only for a few hours. (His initial conclusions were
based on photographs.)
Moreover, prior to his first deposition, Carlson had issued a signed
report in which he concluded that the tire had “not been . . .
overloaded or underinflated,” not because of the absence of “two of
four” signs of abuse, but simply because “the rim flange impressions .
. . were normal.” That report also said that the “tread depth remaining
was 3/32 inch,” id., at 336, though the opposing expert's (apparently
undisputed) measurements indicate that the tread depth taken at
various positions around the tire actually ranged from .5/32 of an inch
to 4/32 of an inch, with the tire apparently showing greater wear along
both shoulders than along the center.
Further, in respect to one sign of abuse, bead grooving, the expert
seemed to deny the sufficiency of his own simple visual-inspection
methodology. He testified that most tires have some bead groove
pattern, that where there is reason to suspect an abnormal bead
groove he would ideally “look at a lot of [similar] tires” to know the
grooving's significance, and that he had not looked at many tires
similar to the one at issue.
Finally, the court, after looking for a defense of Carlson's
methodology as applied in these circumstances, found no convincing
defense. Rather, it found (1) that “none” of the Daubert factors,
including that of “general acceptance” in the relevant expert
community, indicated that Carlson's testimony was reliable; (2) that its
own analysis “revealed no countervailing factors operating in favor of
admissibility which could outweigh those identified in Daubert”; and
(3) that the “parties identified no such factors in their briefs.” For
these three reasons taken together, it concluded that Carlson's
testimony was unreliable.
[No] one denies that an expert might draw a conclusion from a set
of observations based on extensive and specialized experience. Nor
does anyone deny that, as a general matter, tire abuse may often be
identified by qualified experts through visual or tactile inspection of
the tire. See Affidavit of H.R. Baumgardner 1–2, cited in Brief for
National Academy of Forensic Engineers as Amicus Curiae 16 (Tire
engineers rely on visual examination and process of elimination to
analyze experimental test tires). . . .
The particular issue in this case concerned the use of Carlson's
two-factor test and his related use of visual/tactile inspection to draw
conclusions on the basis of what seemed small observational
differences. We have found no indication in the record

731

that other experts in the industry use Carlson's two-factor test or

that tire experts such as Carlson normally make the very fine
distinctions about, say, the symmetry of comparatively greater
shoulder tread wear that were necessary, on Carlson's own theory, to
support his conclusions. Nor, despite the prevalence of tire testing,
does anyone refer to any articles or papers that validate Carlson's
approach. Indeed, no one has argued that Carlson himself, were he
still working for Michelin, would have concluded in a report to his
employer that a similar tire was similarly defective on grounds
identical to those upon which he rested his conclusion here. Of
course, Carlson himself claimed that his method was accurate, but,
as we pointed out in Joiner, “nothing in either Daubert or the Federal
Rules of Evidence requires a district court to admit opinion evidence
that is connected to existing data only by the ipse dixit of the expert.”
Respondents additionally argue that the District Court too rigidly
applied Daubert's criteria. They read its opinion to hold that a failure
to satisfy any one of those criteria automatically renders expert
testimony inadmissible. . . . [However, the court] explicitly recognized
that the relevant reliability inquiry “should be 'flexible,'” that its
“'overarching subject [should be] . . . validity' and reliability,” and that
“Daubert was intended neither to be exhaustive nor to apply in every
case.” And the court ultimately based its decision upon Carlson's
failure to satisfy either Daubert's factors or any other set of
reasonable reliability criteria. In light of the record as developed by
the parties, that conclusion was within the District Court's lawful
discretion.
In sum, Rule 702 grants the district judge the discretionary authority,
reviewable for its abuse, to determine reliability in light of the
particular facts and circumstances of the particular case. The District
Court did not abuse its discretionary authority in this case. Hence, the
judgment of the Court of Appeals is reversed.

NOTES AND QUESTIONS

1. Note that in all three cases on experts and FRE 702, Daubert,
Joiner, and Kumho Tire, the issue arose in the context of a motion for
summary judgment. The moving party in a summary judgment motion
must meet its burden of production with admissible evidence. (Why?)
Why do you think a summary judgment motion could turn on an
evidence objection under FRE 702?
2. We have now heard a few times that the trial judge (the district
court judge) is the “gatekeeper” when it comes to admitting expert
testimony. What does this mean?
 3. Would the district court have abused its discretion if it had
admitted Carlson's testimony?
4. Suppose the Eleventh Circuit had reversed the district court, as
here, but had done so by applying Daubert and concluding that
Carlson's testimony met one of the Daubert factors. Would the
Supreme Court have affirmed the Eleventh Circuit?
5. It is widely assumed that Daubert establishes the basic standard
for admitting expert testimony. Does that mean that at least one
prong of the four-part Daubert test must be met in order to admit
expert testimony? What does Kumho say about this?

732

5. The 2000 Amendments to FRE 702

In 2000, FRE 702 was amended to its current form, replacing the
original language that was quoted in the previous section of the
textbook. Judges and practitioners now find themselves in the
unenviable position of having to quote three sources of authority that,
while generally consistent, adopt varying language (and arguably
slightly varied approaches) to expert witness reliability. Daubert sets
out its four-factor test, noting that not all of them will apply in all
cases. Kumho Tire purports to reaffirm Daubert and extend it beyond
the traditional “laboratory” sciences, but notes that in some cases, it
may be appropriate to apply none of the four Daubert factors:
[t]he factors identified in Daubert may or may not be pertinent in assessing reliability,
depending on the nature of the issue, the expert's particular expertise, and the subject of
his testimony. The conclusion, in our view, is that we can neither rule out, nor rule in, for
all cases and for all time the applicability of the factors mentioned in Daubert[.] [Kumho
Tire, 526 U.S. at 150 (internal quotations omitted).]
Finally, in 2000, FRE 702 was amended to specify three reliability
factors in subsections (b)-(d). For convenience, we repeat them here:
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods;
and
(d) the expert has reliably applied the principles and methods to the
facts of the case.
As the Advisory Committee explained, these factors were added “in
response to Daubert,” but “no attempt has been made to 'codify' the
specific factors” stated in Daubert. Advisory Committee Notes to FRE
702—2000 Amendment (emphasis added). Daubert is thus one of the
stranger controlling precedents you will encounter: Everyone claims
to be following it, but its factors need not be adhered to, either in
whole or in part. The one doctrinal point we know for sure is that trial
judges have broad discretion to rule on the reliability of expert
testimony, and their rulings will be reviewed deferentially on appeal—
subject to reversal only for an abuse of discretion.
The Advisory Committee Note to the 2000 Amendment to FRE 702
provides a particularly comprehensive and well-reasoned explanation
of the reliability requirement, and its application to various types of
expert testimony. It is worth reading in its entirety. Here, we break it
down to emphasize its most important points.
Daubert Not Codified in Rule 702. The Advisory Committee
begins by making clear that amended FRE 702 is not a codification of
Daubert.
Rule 702 has been amended in response to Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579 (1993), and to the many cases applying Daubert, including Kumho
Tire Co. v. Carmichael, 119 S. Ct. 1167 (1999). In Daubert the Court charged trial judges
with the responsibility of acting as gatekeepers to exclude unreliable expert testimony,
and the Court in Kumho clarified that this gatekeeper function applies to all expert
testimony, not just testimony based in science. The amendment affirms the trial court's
role as gatekeeper and provides some general standards that the trial court must

733
use to assess the reliability and helpfulness of proffered expert testimony. Consistently
with Kumho, the Rule as amended provides that all types of expert testimony present
questions of admissibility for the trial court in deciding whether the evidence is reliable
and helpful. . . . [T]he proponent [of the expert testimony] has the burden of establishing
that the pertinent admissibility requirements are met by a preponderance of the
evidence.
Daubert set forth a non-exclusive checklist for trial courts to use in assessing the
reliability of scientific expert testimony. . . . The Court in Kumho held that these factors
might also be applicable in assessing the reliability of nonscientific expert testimony,
depending upon “the particular circumstances of the particular case at issue.” 119 S. Ct.
at 1175.
 No attempt has been made to “codify” these specific factors. Daubert itself
emphasized that the factors were neither exclusive nor dispositive. Other cases have
recognized that not all of the specific Daubert factors can apply to every type of expert
testimony. . . . The standards set forth in the amendment are broad enough to require
consideration of any or all of the specific Daubert factors where appropriate.

Other Factors Relevant. The Advisory Committee proceeds to

outline its own list of reliability factors.
Courts both before and after Daubert have found other factors relevant in determining
whether expert testimony is sufficiently reliable to be considered by the trier of fact.
These factors include:
(1) Whether experts are “proposing to testify about matters growing
naturally and directly out of research they have conducted
independent of the litigation, or whether they have developed
their opinions expressly for purposes of testifying.” Daubert v.
Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1317 (9th Cir.
1995).
(2) Whether the expert has unjustifiably extrapolated from an
accepted premise to an unfounded conclusion. See General
Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997) (noting that in
some cases a trial court “may conclude that there is simply too
great an analytical gap between the data and the opinion
proffered”).
(3) Whether the expert has adequately accounted for obvious
alternative explanations.
(4) Whether the expert “is being as careful as he would be in his
regular professional work outside his paid litigation consulting.”
See Kumho Tire Co. v. Carmichael, 119 S. Ct. 1167, 1176 (1999)
(Daubert requires the trial court to assure itself that the expert
“employs in the courtroom the same level of intellectual rigor
that characterizes the practice of an expert in the relevant field”).
(5) Whether the field of expertise claimed by the expert is known to
reach reliable results for the type of opinion the expert would
give.
[Other] factors may also be relevant. See Kumho, 119 S. Ct. 1167, 1176 (“[W]e
conclude that the trial judge must have considerable leeway in deciding in a particular
case how to go about determining whether particular expert testimony is reliable.”). Yet
 no single factor is necessarily dispositive of the reliability of a particular expert's
testimony.

734

Daubert Did Not Raise the Bar for Admitting Expert Testimony.
The Advisory Committee stated “A review of the case law after
Daubert shows that the rejection of expert testimony is the exception
rather than the rule. Daubert did not work a 'sea change over federal
evidence law,' and 'the trial court's role as gatekeeper is not intended
to serve as a replacement for the adversary system.' ”
Contradictory Expert Testimony Not Per Se Unreliable. Parties
frequently present experts who contest one another's testimony. It is
perfectly logical for a court to admit both as reliable, and allow the
jury to decide between them.
When a trial court, applying this amendment, rules that an expert's testimony is reliable,
this does not necessarily mean that contradictory expert testimony is unreliable. The
amendment is broad enough to permit testimony that is the product of competing
principles or methods in the same field of expertise. As the court stated in In re Paoli
R.R. Yard PCB Litigation, 35 F.3d 717, 744 (3d Cir. 1994), proponents “do not have to
demonstrate to the judge by a preponderance of the evidence that the assessments of
their experts are correct, they only have to demonstrate by a preponderance of evidence
that their opinions are reliable. . . . The evidentiary requirement of reliability is lower than
the merits standard of correctness.”. . .

Reliability Inquiry May Extend to Conclusions. The Advisory

Committee observed that a focus on the reliability of methodology
does not insulate conclusions from inquiry:
The Court in Daubert declared that the “focus, of course, must be solely on principles
and methodology, not on the conclusions they generate.” 509 U.S. at 595. Yet as the
Court later recognized, “conclusions and methodology are not entirely distinct from one
another.” General Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997). Under the amendment,
as under Daubert, when an expert purports to apply principles and methods in
accordance with professional standards, and yet reaches a conclusion that other experts
in the field would not reach, the trial court may fairly suspect that the principles and
methods have not been faithfully applied. The amendment specifically provides that the
trial court must scrutinize not only the principles and methods used by the expert, but
also whether those principles and methods have been properly applied to the facts of
the case. . . .

Reliability Inquiry Applies to All Expert Testimony. The Advisory

Committee emphasized Kumho Tire's holding that reliability is a
question for all expert testimony, not just scientific experts.
As stated earlier, the amendment does not distinguish between scientific and other
forms of expert testimony. The trial court's gatekeeping function applies to testimony by
any expert. While the relevant factors for determining reliability will vary from expertise
to expertise, the amendment rejects the premise that an expert's testimony should be
treated more permissively simply because it is outside the realm of science. An opinion
from an expert who is not a scientist should receive the same degree of scrutiny for
reliability as an opinion from an expert who purports to be a scientist.

735
Some types of expert testimony will be more objectively verifiable, and subject to the
expectations of falsifiability, peer review, and publication, than others. Some types of
expert testimony will not rely on anything like a scientific method, and so will have to be
evaluated by reference to other standard principles attendant to the particular area of
expertise. The trial judge in all cases of proffered expert testimony must find that it is
properly grounded, well-reasoned, and not speculative before it can be admitted. The
expert's testimony must be grounded in an accepted body of learning or experience in
the expert's field, and the expert must explain how the conclusion is so grounded. . . .
The amendment requires that the testimony must be the product of reliable principles
and methods that are reliably applied to the facts of the case. While the terms
“principles” and “methods” may convey a certain impression when applied to scientific
knowledge, they remain relevant when applied to testimony based on technical or other
specialized knowledge. For example, when a law enforcement agent testifies regarding
the use of code words in a drug transaction, the principle used by the agent is that
participants in such transactions regularly use code words to conceal the nature of their
activities. The method used by the agent is the application of extensive experience to
analyze the meaning of the conversations. So long as the principles and methods are
reliable and applied reliably to the facts of the case, this type of testimony should be
admitted.

Demonstrating Reliability of Nonscientific Expert Testimony.

The Advisory Committee attempted to fill in an important gap in the
Kumho Tire opinion: How can experts outside the science and
technology fields demonstrate reliability, in the absence of peer
publications, error rates, and testing?
Nothing in this amendment is intended to suggest that experience alone—or experience
in conjunction with other knowledge, skill, training or education—may not provide a
sufficient foundation for expert testimony. To the contrary, the text of Rule 702 expressly
contemplates that an expert may be qualified on the basis of experience. In certain
fields, experience is the predominant, if not sole, basis for a great deal of reliable expert
testimony.
If the witness is relying solely or primarily on experience, then the witness must explain
how that experience leads to the conclusion reached, why that experience is a sufficient
basis for the opinion, and how that experience is reliably applied to the facts. The trial
 court's gatekeeping function requires more than simply “taking the expert's word for it.”
The more subjective and controversial the expert's inquiry, the more likely the testimony
should be excluded as unreliable. . . .

The Rule Does Not Forbid Hypothetical Opinions. Prior to the

FRE, experts were not allowed to testify about case-specific facts.
Instead, they framed their testimony in the form of opinions on
hypothetical questions designed to track the facts in the case. Such
hypotheticals were often extremely cumbersome and elaborate, and
resulted in making expert testimony even harder to follow than it is
today. Although the rules no longer require such expert hypotheticals,
neither do they forbid them. The Advisory Committee states that “the
language 'facts or data' is broad enough to allow an expert to rely on
hypothetical facts that are supported by the evidence.”

736

Courts May Not Resolve Underlying Factual Disputes in Ruling

on Admissibility of Expert Testimony. Under FRE 104(a), a court
may have to resolve factual disputes going to the reliability of the
expert's qualifications and methodology, and the reliability of the
“facts or data.” The problem here is that at least some of the “facts or
data” used by the expert will include reliance on the offering party's
version of disputed underlying case facts. As the Advisory Committee
states, “When facts are in dispute, experts sometimes reach different
conclusions based on competing versions of the facts. The emphasis
in the amendment on 'sufficient facts or data' is not intended to
authorize a trial court to exclude an expert's testimony on the ground
that the court believes one [party's] version of the facts and not the
other.” Thus, the court can't use its ruling on the admissibility of
expert testimony as an occasion to resolve disputed “what happened”
facts that are for the jury to decide.

KEY POINTS

1. FRE 702 permits expert opinion testimony based on

specialized knowledge that is helpful to the jury to
 understanding a fact in issue. Specialized knowledge includes
scientific, technical, or any other kind of knowledge outside
common knowledge. Expertise can be gained through study,
training, skill, or experience.
2. Expert opinion is automatically deemed helpful to the trier of
fact where a case-specific fact or generalization necessary to
a party's case either can't be known or can't be understood as
a matter of common knowledge. Expert opinion may be helpful
to the trier of fact where expert information sheds additional
light on matters that fall within a gray area of common and
expert knowledge.
3. FRE 702(b)-(d) require that expert testimony be based on
applying reliable methods to sufficient facts or data. The trial
judge has broad discretion to determine reliability, as an FRE
104(a) question, which will be reviewed deferentially on
appeal.
4. The reliability inquiry, requiring use of “reliable principles and
methods,” applies to all expert testimony, whether scientific or
not. The original Daubert factors may be applicable in certain
cases, but are not controlling in cases where they are not
pertinent to the expert opinion in question.

PROBLEMS
9.4. In United States v. Cross, defendant Steven Cross is charged
with possession with intent to sell cocaine and conspiracy to
sell cocaine. Cross had driven a car to a motel parking lot,
where he met Tony Genovese, a government informant.
Genovese said, “Let's open the trunk.” When the automatic
trunk latch didn't work, Cross got out and the two men went to
the back of the car. Cross opened the trunk with the car key,
revealing ten 16-oz. packages of Gold Label brand

737
granulated sugar. Cross was arrested in the parking lot by waiting
FBI agents. It is undisputed that the packages contained
cocaine. But Cross testifies that he thought he was merely
dropping off the car at the request of his friend Barry Styles,
who was loaning the car to Genovese. The prosecution wants
to call Drug Enforcement Agency (DEA) Agent Barbara
Cousins to testify as follows:
I have been involved in the investigation and prosecution of over 500 cases of
narcotics dealing over the course of 15 years with the DEA. I have trained state
and federal law enforcement agents in investigating drug crimes for the past five
years. I have investigated at least 100 cases in which a defendant making a drug
delivery has claimed that he was unaware that he was carrying drugs in the
luggage or car trunk, but merely believed he was delivering something for a friend.
That claim has never been true in any of those cases, not even once. It is a
standard lie told by drug couriers.
What arguments can be made for admission or exclusion of this
testimony under FRE 702?
9.5. In a personal injury suit against a grocery store, Maxine Black
sought to introduce the testimony of Dr. Reyna, her algologist
(a doctor who treats persistent pain). Ms. Black developed
fibromyalgia (a nonspecific, chronic-pain illness) after a slip-
and-fall accident. At trial, Dr. Reyna testified that she fully
apprised herself of Ms. Black's prior medical history before the
accident, that she determined that no post-accident incident
was an intervening cause for the onset of Ms. Black's
fibromyalgia, and that no other factors—based upon her review
of tests performed prior to accepting Ms. Black as a patient, as
well as those tests which Dr. Reyna, herself, directed to be
made—contributed to Ms. Black's fibromyalgia. Reyna
acknowledged that fibromyalgia has no known etiology (i.e.,
medical science does not know whether the cause of the
condition is muscle, nerve, or hormone damage); but she was
willing to testify that the fall contributed to the development of
Ms. Black's condition. Should Dr. Reyna be allowed to testify?
9.6. As part of a conspiracy trial, the government called a
handwriting analyst to testify to the identity of persons who had
addressed an envelope containing illegal drugs. The analyst,
 Dr. Learned, had attended courses and seminars on
handwriting identification, was employed by the secret service
as a handwriting expert, and had testified in over 100 court
cases. Handwriting analysis essentially involves comparing a
known sample of a person's writing with the writing on the
document sought to be identified. The analyst compares the
characteristics of the writing, including the slant of the writing,
the height and shape of the letters, and the spacing between
letters and words. After the court ruled that Dr. Learned's
testimony was admissible, the defense tried to call Lou
Bowden, a law professor who had no formal training in
handwriting analysis and who lacked practical experience in
the field. Bowden nevertheless had published an article in a
well-respected law review, criticizing the field of handwriting
analysis and its use in litigation. Bowden's main critique of this
type of analysis was that it lacked standards to guide experts in
weighing the match or nonmatch of particular handwriting
characteristics. The prosecution objects that Bowden is

738

not a handwriting analysis expert, and therefore his testimony is

irrelevant and inadmissible. What are the arguments for and
against admissibility?

C. FACTUAL BASIS FOR EXPERT OPINION

FRE 702(b)-(d) tell us that an admissible expert opinion must be

based on “sufficient facts or data” (or “facts of the case”) to which
“reliable principles and methods” have been “reliably applied.” The
judge will have access to these underlying “facts or data” in
determining whether the expert meets FRE 702's test for reliability.
But if knowing the underlying facts is important to assessing the
reliability of an expert's opinion, doesn't it stand to reason that the jury
should learn those facts too?
 Of course it does. But the problem is that expert analysis outside
the courtroom is not limited to the rules of evidence: Experts consider
hearsay and other sorts of inadmissible evidence all the time.
Requiring experts to conform to courtroom evidence rules risks
unduly interfering with the reliability of their analytical work or
hampering their explanation of it in their testimony, or both. But
freeing expert witnesses from evidence rules risks presenting
inadmissible evidence to the jury through the testimony of the expert.
Prior to the adoption of the FRE, common law evidence rules tended
to opt for the first (restrictive) approach. The FRE has shifted
somewhat in the other direction, loosening the restrictions on experts
while still trying to limit the amount of inadmissible evidence that may
come in. FRE 703 and 705 attempt to deal with these issues.

1. FRE 703
RULE 703. BASES OF AN EXPERT'S OPINION TESTIMONY
An expert may base an opinion on facts or data in the case that the expert has been
made aware of or personally observed. If experts in the particular field would reasonably
rely on those kinds of facts or data in forming an opinion on the subject, they need not
be admissible for the opinion to be admitted. But if the facts or data would otherwise be
inadmissible, the proponent of the opinion may disclose them to the jury only if their
probative value in helping the jury evaluate the opinion substantially outweighs their
prejudicial effect.

2. Explanation of FRE 703

FRE 703's three sentences make three basic points about the “facts
or data” an expert witness can rely on in offering an admissible
opinion.
“Made aware of or personally observed.” An expert witness can
be given case facts through hearsay. Prior to trial, the attorney may
simply summarize case facts for

739

the expert with a written or verbal summary, or give the expert

copies of evidentiary documents, depositions, and other discovery
materials to review. These are the most typical ways that expert
witnesses are “made aware of” case facts or data.
In some instances, an expert may have personally observed
litigated events as they occurred. The most common example is a
treating physician or other medical staff, who may have observed a
victim's or plaintiff's injuries very shortly after they occurred. Such a
witness may be asked both to explain what happened, as a percipient
witness with firsthand knowledge under FRE 602, and to give an
expert diagnosis or opinion under FRE 702.
What about a forensic chemist who tests a substance weeks after it
was seized from the defendant, and identifies it as cocaine—is that a
personal observation, or a fact of which the chemist was “made
aware”? You could argue for either, but the distinction is academic
here. The point is that the chemist could present his observations in
expert testimony either way.
“Reasonably rely on.” The second sentence makes clear that an
expert witness may base an opinion on facts that would be
inadmissible as courtroom evidence “[i]f experts in the particular field
would reasonably rely on those kinds of facts or data in forming an
opinion on the subject.” The opinion does not become inadmissible
because the underlying facts on which it is based are inadmissible.
An example of this would be an opinion based on hearsay. Most
experts practice their disciplines outside the litigation system without
using the hearsay rule. In medicine, for example, the hospital night
nurse informs the day nurse who informs the doctor that the patient
had a high fever, and the doctor prescribes action in part on the basis
of that report. Given the reasonableness of reliance on hearsay to
make medical diagnoses, FRE 703 allows medical experts to base
their opinions on hearsay in litigated cases. Note that the hearsay
provided to an expert does not necessarily have to take the exact
form and manner it would have take in “the real world”: As an
attorney, you don't have to provide hearsay to your retained medical
expert by having a nurse make entries on a hospital chart. The point
is that doctors reasonably rely on hearsay reports of symptoms and
other medical facts; therefore, you can provide such hearsay
information to the doctor you have retained as your expert witness.
Hearsay is not the only example, of course. A psychiatrist or social
worker may reasonably rely on character evidence that would be
inadmissible in litigation. A building contractor might reasonably rely
on a verbal summary of information from a blueprint, rather than
always looking at the original blueprint herself (violating the best
evidence rule). FRE 703 allows you as an attorney to provide your
expert witness any information that, though inadmissible as evidence
in court, is of a general type or form that that an expert in that field
would use when practicing her expertise outside the litigation system.
Whether an expert in a particular field “reasonably relies on” a
certain type of inadmissible matter is a fact question that the judge
would decide under FRE 104(a). Sometimes, it is easily disposed of
as a matter of common sense. Where reasonable reliance is
disputed, the question is likely to overlap with disputes over the
reliability of the opinion, or the scope of the witness's expertise.
Compare Sphere Drake

740

Insurance PLC v. Trisko, 226 F.3d 951 (8th Cir. 2000) (in insurance
coverage dispute over stolen jewelry, police detective allowed to
testify as expert about modi operandi of jewel thieves based in part
on conversations with informants), with Redman v. John D. Brush &
Co., 111 F.3d 1174 (4th Cir. 1997) (in products liability case for
allegedly defective store safe, design expert on materials and
assembly of safes did not reasonably rely on conversations with store
personnel to identify a standard of burglary protection capacity).
Finally, it is important to remember that the “reasonably rely on”
limitation applies only to inadmissible matter that the expert relies on
for his testimony. Experts may rely on any admissible evidence in
forming an opinion, whether or not that evidence is of a type the
expert usually encounters and relies on outside of the litigation
setting.
 Reverse 403 Test for Inadmissible Facts. As noted above, logic
dictates that a jury be informed about the factual basis for an expert's
opinion. FRE 702 sensibly states that the reliability of the factual
basis is a key logical factor in the judge's assessment of the reliability
of an expert opinion. And what's logic for the judge is logic for the
jury. The problem, however, is that if all the facts and data made
known to an expert were passed on to the jury, the expert witness
could become a conduit for getting all kinds of inadmissible evidence
in front of the jury. Expert testimony could thereby become an
exception that swallows the entire body of exclusionary evidence
rules.
FRE 703 tries to strike a balance between these two goals—
protecting the policies underlying the various evidence exclusion
rules, and allowing the jury a meaningful opportunity to assess the
reliability of expert testimony. The rule does so by imposing a
“reverse FRE 403” balancing test. Inadmissible facts relied on by the
expert can be disclosed to the jury “only if their probative value in
helping the jury evaluate the opinion substantially outweighs their
prejudicial effect.”

3. FRE 703: Policies, Problems, and Applications

a. Historical Background.
When faced with a conflict between the legal requirements
concerning evidence, such as the hearsay rule, and the conventions
of other disciplines, such as the reliance on hearsay accounts in a
hospital setting, the common law tended to demand that witnesses
from other disciplines conform their practice to ours. Experts were
permitted to testify only on the basis of evidence that was admissible
under the rules. Further, experts could not themselves present facts
that had not been presented to the jury—that would, in effect, be
hearsay testimony. Thus, an expert could only refer to facts that had
been admitted in evidence at that point in the trial that the expert
heard while sitting in the courtroom. But if the expert had not sat
through the trial, or the relevant evidence had not yet been
presented, the expert could not be deemed to know the case facts
because he could not be supplied the facts through hearsay (such as
a lawyer's summary of the evidence). See Williams v. Illinois, 132 S.
Ct. 2221, 2257 (2012) (Thomas, J., concurring in the judgment). To
work around this limitation, experts typically were asked long and
involved hypothetical questions. The examiner

741

would summarize the evidence presented to that point, and

expected to be presented, in the form of hypothetical factual
assumptions. The expert then offered an opinion based on the
assumed facts. Use of the hypothetical question approach ensured
that the premises of an opinion had been the subject of earlier
testimony or admissible testimony forthcoming from other witnesses.
But it also created a significant artificiality in trials. The hypothetical
questions were extremely awkward, the expert's testimony would be
made harder to follow, and advocates often felt compelled to put their
experts on the stand at the end of their case, by which time
admissibility questions would have been resolved.
The drafters of the Federal Rules rejected this aspect of the
common law in FRE 703, providing that experts can testify on the
basis of data that would be legally inadmissible, so long as “experts in
the particular field would reasonably rely on those kinds of facts or
data in forming an opinion on the subject.” Thus, under FRE 703
experts no longer must conform their practices to the law's
conventions, but rather the law bends to accommodate the practices
of the other disciplines. The rule change also resolved a conundrum
in common law treatment of expert testimony. What makes an expert
an expert in many instances is a heavy dose of book learning. To the
extent that an expert relies on academic study (books and treatises
and the like) or on conversations with others such as occur during
“rounds” at teaching hospitals, the expertise is based on hearsay,
much of which would be inadmissible or too costly to produce at trial.
The common law courts overlooked this point. Thus, even though the
common law courts “purported” to require a basis of admissible
evidence for an expert's opinion, opinions remained admissible even
though they relied heavily on knowledge gained through a form of
inadmissible, or at least unadmitted, hearsay. Under FRE 703, this is
not a problem.
b. The Jury's Use of Inadmissible Facts Underlying Expert Opinion (Inadmissible
“Basis Evidence”)
The biggest problem presented by FRE 703 has always been the
extent to which the rule permits the jury to be informed of
inadmissible evidence relied on by the expert to form an opinion,
when that opinion has itself been admitted in evidence. Does FRE
703 take precedence over various specific exclusionary rules by
allowing the expert to divulge various items of inadmissible evidence,
or does it restrict the expert to expressing and explaining the opinion,
without divulging the inadmissible evidence? Can an expert witness
in effect become a conduit for presenting inadmissible evidence to
the jury?
FRE 703's Restrictive Approach to Inadmissible Basis
Evidence. The original version of FRE 703 did not address this issue
at all. For 25 years following the adoption of the federal rules, courts
took inconsistent approaches to this question. Some liberally allowed
experts to describe what has come to be called “basis evidence,”
referring to the facts (whether admissible or not) on which the expert
reasonably based her opinion. See, e.g., Williams v. Illinois, 132 S.
Ct. at 2239 (using the term “basis evidence”). Others approached
such basis evidence with varying degrees

742

of restrictiveness. In 2000, FRE 703 was amended to add the last

sentence of the rule: The proponent of the opinion may not present
the jury with inadmissible basis evidence unless a reverse FRE 403
standard is met: “probative value . . . substantially outweighs . . .
prejudicial effect.” There is an unavoidable cost to this resolution of
the controversy: In some, perhaps many cases, the jury will not know
all the facts the expert considered, and therefore will not be in a
position to give a full evaluation to the expert's opinion. But the
alternative is costly too: With no restriction, FRE 703 would make
expert witnesses a conduit for much, if not all, the inadmissible
evidence otherwise excluded in the case.
Limited Use of Otherwise Inadmissible Basis Evidence. The
addition of the reverse 403 balancing test clears up only part of the
controversy over the rule's meaning. Basis evidence will still be
disclosed to the jury where the reverse 403 test is met. In such a
case, is it admissible only to help the factfinder understand the
opinion that is based on it? Or may the factfinder rely on the
inadmissible basis evidence to draw inferences concerning the
material propositions in the case?
The answer is clear: The factfinder may use the otherwise
inadmissible basis evidence only to evaluate the expert's opinion, and
not as substantive proof of other issues in the case. The rule
apparently codifies what had been the majority approach to basis
evidence even before the 2000 amendment. The reverse 403
balancing test in FRE 703 weighs the inadmissible fact's “probative
value in helping the jury evaluate the opinion.” Thus, the rule allows
disclosure of otherwise inadmissible facts for the express purpose of
evaluating the expert's opinion. To be sure, this language does not
unambiguously imply the converse—disallowing jurors from
considering the evidence for other purposes, namely as substantive
proof of other issues in the case. But courts interpret it as restricting
the use of otherwise inadmissible facts to evaluating the expert
opinion. As the Supreme Court recently stated, FRE 703 “in
appropriate cases, permits an expert to explain the facts on which his
or her opinion is based without testifying to the truth of those facts.”
Williams v. Illinois, 132 S. Ct. 2221, 2228 (2012) (plurality opinion).
The Limiting Instruction Problem. There remains a problem,
however. Where inadmissible basis evidence is relevant to prove a
contested point outside the expert's testimony, it becomes necessary
to give a puzzling limiting instruction to the jury—to consider the basis
evidence only to the extent that it bears on the reliability of expert's
opinion. In some cases, such an instruction can appear illogical. The
expert's reliance on a fact necessarily implies that the expert believed
it to be true and accurate. And if the jury believes that the expert
opinion is reliable, then it too will believe that the disclosed basis facts
are true and accurate. How can it be reasonable for an expert to rely
on inadmissible basis facts, but not a jury to do so?
This problem was pointedly raised in an influential nonfederal
appellate case operating under rules analogous to FRE 703. See In
re Melton, 597 A.2d 892 (D.C. 1991). In Melton, a civil commitment
hearing tried before a jury, the key issue was whether the respondent,
Melton, was a danger to himself or others. Called as experts by the
prosecution, two psychiatrists characterized Melton as schizophrenic
and dangerous,

743

citing secondhand accounts of Melton's violent or antisocial

behavior. The trial court instructed the jury that the hearsay reported
in the experts' testimony was to be considered only “for the purpose
of evaluating the reasonableness and correctness of the doctors'
conclusions,” and not “to establish the truth of the matters asserted
by [the declarants].” But as the appellate court cogently observed:
The problem raised by Melton cannot, however, be avoided simply by calling the
evidence expert testimony rather than hearsay. Labels cannot perform juridical alchemy.
By resort[ing] to expert testimony, the District was able to bring to the jury's attention
matters that could obviously prejudice Melton, including, e.g., reports that he had
punched his mother, and that on an earlier occasion he had threatened his sister with a
screwdriver. Melton was never able to cross-examine those who accused him of these
anti-social acts.
The trial judge in Melton had tried to address this problem by giving a
jury instruction fairly typical of what most federal courts do in allowing
disclosure of otherwise inadmissible basis evidence.
[T]hese statements are admitted only to demonstrate the information relied upon by the
doctors in forming their conclusion. They are to be considered by you only for the
purpose of evaluating the reasonableness and correctness of the doctors' conclusions.
They are not to be considered by you as actual proof of the incidents described. They
are hearsay and as such are not admissible to establish the truth of the matters asserted
by them.
Critics observe that limiting instructions are unlikely to be followed by
juries when they require jurors to ignore relevant evidence. Likewise,
jurors may be unable to make subtle or sophisticated distinctions to
avoid using evidence for a relevant, but impermissible purpose. But in
a case like Melton, the problem is worse: The jury is being asked, not
to make a sophisticated distinction, but an illogical one. The problem
with the reasoning underlying the Melton trial court instruction is that,
as the Melton appellate court so aptly put it, “you cannot believe that
the testimony about the punch tends to show that Melton is
dangerous unless you first believe that he actually punched his
mother.” 597 A.2d at 907. A jury cannot accept an opinion as true
without accepting its factual basis as true. If the basis evidence is
inadmissible hearsay, then logically it is offered for its truth, to
substantiate and explain an expert opinion offered as valid.
The logical problem is not present in every case. For example,
suppose the issue in Melton had been not the broad and rather all-
inclusive question of “dangerousness,” but rather whether he had
committed an armed robbery. Suppose further that the psychiatrists
were testifying about the validity of an insanity defense offered by
Melton. Here, the apparent conundrum of accepting the truth of the
hearsay about Melton punching his mother, but disregarding it for the
substantive question of whether he committed the armed robbery, is
not really different from admitting any other specific acts evidence for
a limited purpose. Juries are routinely instructed to consider a prior
bad act as relevant to “motive, intent, opportunity,” etc., but not to
consider it as showing a propensity to commit crime. Here, the
problem seems no different.
However, where the inadmissible basis evidence gives rise to the
same inference in the expert's testimony as it would when disclosed
directly to the jury, such a limiting

744

instruction seems much more problematic. This will almost

invariably be the case where the basis evidence is inadmissible
hearsay. Consider an arson case where the defendant contends that
the fire was an accident. An arson investigator testifies for the
prosecution that, in his expert opinion, the fire was set intentionally.
The basis for his conclusion is that the remnants of a can of a
flammable accelerant were found on the premises. Although such an
accelerant is a common item found stored in people's basements, he
believes this can was brought to the building the day before the fire,
supporting his conclusion of arson. How does he know that? Because
a witness interviewed by police stated that he saw the defendant
bringing the can of accelerant to the building the day before the fire.
In this hypothetical, the witness's statement is inadmissible
testimonial hearsay, but is reasonably relied on by the inspector in
investigating the cause of the fire—and in forming an opinion as an
expert witness. But because the inspector uses the hearsay to draw
the same conclusion that the jury would draw, the limiting instruction
doesn't work. The jury can't consider the hearsay true for the expert's
reasoning without considering it true for its own independent
reasoning on the same point: that the defendant is more likely guilty
of arson because he brought a can of accelerant to the building the
day before the fire.
FRE 703's Compromise Solution. FRE 703, as amended,
attempts to deal with the problem of the illogical jury instruction by a
sort of compromise. By limiting the number of cases in which
inadmissible basis evidence will be disclosed to the jury, the
restrictive reverse 403 balancing test in effect limits the number of
cases in which the troublesome jury instruction will be needed. Where
inadmissible basis evidence passes the reverse 403 test, and is thus
disclosed to the jury, federal courts seem committed to the idea that a
jury instruction will address the problem of the jury using the basis
evidence for an inadmissible purpose. See Sphere Drake Insurance
PLC v. Trisko, 226 F.3d 951 (8th Cir. 2000) (affirming the jury
instruction to “give no weight to the statements of [the informants] in
the consideration of the issues in this case. You are to consider that
testimony only in developing what [the expert witness] did in the
course of his investigation.”); United States v. Madrid, 673 F.2d 1114
(10th Cir. 1982) (“I have instructed you as to opinions by experts and
that they may state their reasons for such opinions. You are not to
consider such evidence for any other purpose than in evaluating the
expert testimony.”). If you find the jury instruction unsatisfactory,
consider how this problem would occur more frequently without the
restrictive reverse-403 balancing test.
FRE 703 Basis Evidence and the Confrontation Clause. A new
wrinkle is added to the implications of FRE 703 by way of Crawford
and Melendez-Diaz, which have been discussed at greater length in
Chapter Eight, Section G. The question becomes whether
inadmissible matter reasonably relied on by an expert is testimonial
hearsay. If it is, does it violate the confrontation clause to disclose it to
the jury under the FRE 703's reverse 403 balancing test? Courts and
commentators have struggled with this question. Compare United
States v. Mejia, 545 F.3d 179 (2d Cir. 2008) (expert on gang culture
barred from describing gang procedures because the information was
gathered through custodial interrogations with informants, and was
therefore

745

testimonial hearsay), with United States v. Ayala, 601 F.3d 256 (4th
Cir. 2010) (“the question when applying Crawford to expert testimony
is whether the expert is, in essence, giving an independent judgment
or merely acting as a transmitter for testimonial hearsay.”); United
States v. Henry, 472 F.3d 910 (D.C. Cir. 2007) (Crawford “did not alter
an expert witness's ability to rely on (without repeating to the jury)
otherwise inadmissible evidence”); United States v. Forstell, 656 F.
Supp. 2d 578 (E.D. Va. 2009) (holding Melendez-Diaz does not apply
to every person involved in establishing chain of custody or accuracy
of testing devices). See also Julie A. Seaman, Triangular Testimonial
Hearsay: The Constitutional Boundaries of Expert Opinion Testimony,
96 Geo. L.J. 827 (2008).
The Supreme Court addressed the FRE 703 issue somewhat
obliquely, and not definitively, in Williams v. Illinois, 132 S. Ct. 2221
(2012). In a bench trial for rape, the prosecution called a forensic
laboratory specialist, Sandra Lambatos, to testify that she compared
the DNA profile of a blood sample taken from the defendant with the
DNA profile of a semen sample taken from a vaginal swab of the
victim, and found a match between the two samples. While the blood
sample was authenticated through live testimony of another state
forensic analyst, the semen sample was analyzed by a private
forensic lab, Cellmark. The only evidence of the Cellmark analysis
was a lab report. The defendant objected that the Cellmark lab report
was inadmissible testimonial evidence barred by the Confrontation
Clause, so that it could not be disclosed to the trier of fact under FRE
703 or used substantively to prove the necessary forensic link
between the victim and the defendant.
Five justices agreed that the evidence was admissible, but without a
majority opinion. The Court's Confrontation Clause analysis has been
discussed in Chapter Eight. The implications of the case for FRE 703
is unclear. A four-justice plurality suggested both that a hearsay
statement can be admitted under FRE 703's reverse balancing test,
because the fact finder can disregard the evidence as substantive
proof “for its truth,” and consider it only as it bears on the expert's
testimony. See 132 S. Ct. at 2234 n.2. The bulk of the plurality's
argument seems to be that expert basis evidence is a nonhearsay
purpose, which implies that hearsay statements in basis evidence are
in fact admissible in the same manner as any hearsay statement that
is relevant for both a nonhearsay and hearsay purpose. That would
be strange as a general proposition: It would have the effect of taking
all hearsay statements used as basis evidence out of FRE 703
entirely, because it would be admissible nonhearsay evidence,
without any need to apply a reverse 403 test. Fortunately for the
future of FRE 703, five justices disagreed with this conclusion:
[W]hen a witness, expert or otherwise, repeats an out-of-court statement as the basis for
a conclusion, . . . the statement's utility is then dependent on its truth. If the statement is
true, then the conclusion based on it is probably true; if not, not. So to determine the
validity of the witness's conclusion, the factfinder must assess the truth of the out-of-
court statement on which it relies. That is why the principal modern treatise on evidence
variously calls the idea that such “basis evidence” comes in not for its truth, but only to
help the factfinder evaluate an expert's opinion “very weak,” “factually implausible,”
“nonsense,” and “sheer fiction.” D. Kaye, D. Bernstein, & J. Mnookin, The New
Wigmore: Expert Evidence §4.10.1, pp. 196-197 (2d ed. 2011); id., §4.11.6, at 24 (Supp.
2012). “One can sympathize,” notes that treatise, “with a court's desire to

746
 permit the disclosure of basis evidence that is quite probably reliable, such as a routine
analysis of a drug, but to pretend that it is not being introduced for the truth of its
contents strains credibility.” Id., §4.10.1, at 198 (2d ed. 2011).
132 S. Ct. at 2268-2269 (Kagan, J., joined by Scalia, Ginsburg and
Sotomayor, JJ, dissenting); accord 132 S. Ct. at 2257 (Thomas, J.,
concurring in the judgment) (“statements introduced to explain the
basis of an expert's opinion are not introduced for a plausible
nonhearsay purpose”). Even the plurality seemed somewhat queasy
about admitting this type of evidence. The plurality relied heavily on
the fact that the case involved a bench trial, and that therefore the
Justices “must assume” that the trial judge could carefully distinguish
between using the basis evidence to assess the expert's opinion and
using it as substantive proof of its hearsay assertion. Had the case
involved a jury trial, “[t]he dissent's argument would have force” and
“[a]bsent an evaluation of the risk of juror confusion and careful jury
instructions, the testimony could not have gone to the jury[.]” 132 S.
Ct. at 2236 (plurality opinion).

4. FRE 705
RULE 705. DISCLOSURE OF THE FACTS OR DATA UNDERLYING AN EXPERT'S
OPINION
Unless the court orders otherwise, an expert may state an opinion—and give the
reasons for it—without first testifying to the underlying facts or data. But the expert may
be required to disclose those facts or data on cross-examination.

5. Explanation of FRE 705

FRE 705 gives the direct examiner the flexibility to elicit the opinion or
conclusion before developing all the details that support it, unless
ordered by the judge to present the underlying basis first. The rule
goes on to imply that the direct examiner need not present the jury
with the underlying facts and data at all—otherwise, the last sentence
would not be meaningful. The cross-examiner has the option to bring
out any facts underlying the expert's opinion that have not been
disclosed on direct examination.
“And give the reasons for it.” The phrase set off in dashes—“and
give the reasons for it”—is distinguished from “underlying facts or
data.” Presumably, then, “reasons” refers to methodology. This
suggests that FRE 705 does not permit an expert to give a bare
conclusion without explaining her methodology. But that explanation
can follow the opinion.
Facts and Data Must Be Presented to the Judge. Significantly,
FRE 705 is a rule of trial practice, not a rule of admissibility.
Admissibility is determined under FRE 702, under which experts are
not permitted to offer opinion testimony unless and until the offering
party has persuaded the court that the requirements of FRE 702

747

have been met. Thus, FRE 705 manifestly does not permit parties
to offer conclusory expert opinions without at least ensuring the judge
that a reliable methodology has been applied to reliable underlying
facts or data. See FRE 702(c), (d). Whether those facts or data must
thereafter be presented to the jury is discretionary with the judge
under FRE 703 and 705.

6. FRE 705: Practical Applications

FRE 705, in conjunction with FRE 703, implicitly eliminates the
common law requirement that experts testify in the form of responses
to hypothetical questions. The advantage to FRE 705's approach is
that it permits the proponent of the evidence to structure her case in
the manner she deems most effective. The proponent of the expert
testimony might be concerned that jurors will get lost in the details, or
will not pay careful attention to them, if they haven't first heard the
summarizing opinion of the expert. FRE 705 permits that concern to
be addressed by introducing the opinion early in the expert's
testimony. On the other hand, if the proponent prefers to lay the
foundation first and then bring out the opinion, that approach is also
permissible.
Since presenting a bare opinion without explaining the underlying
factual basis generally makes for an unpersuasive presentation, few
practitioners are likely to avail themselves of the right under FRE 705
to forgo presenting the underlying data. But rather than ensuring in
every case that direct examination will reveal the basis for an opinion,
FRE 705 leaves these matters to the proponents' incentives and to
cross-examination. In some cases, the information revealed on cross-
examination can be quite damaging to the party that offered the
expert witness, either because it weakens the expert's credibility or
because it muddles the story the jury hears. By clarifying the cross-
examiner's right to bring out undisclosed facts, the rule tends to
discourage cherry-picking by the direct examiner (that is, presenting
only favorable facts and trying to ignore unfavorable ones).
If there is reason to suspect that the information on which the expert
bases the opinion is so unreliable that it may be appropriate to
exclude the opinion altogether, the opponent will often want to test
that suspicion before rather than after the jury hears the opinion. By
explicitly giving the judge authority to require that the basis for an
opinion be brought out before the opinion is given, FRE 705 provides
a reasonable means for solving this type of problem. See, e.g.,
United States v. Brien, 59 F.3d 274 (1st Cir. 1995) (holding that the
defense was not entitled to offer expert testimony without disclosing
the underlying data; rather the data must be supplied to the judge
upon demand and may be used in making a preliminary ruling on
admissibility). This is more of an issue in criminal cases, since in civil
cases, the discovery process usually results in a relatively full pretrial
disclosure of the expert opinion and its grounds. Neither the rule nor
the Advisory Committee Note suggests any criteria for the judge to
apply in deciding whether to require that the basis evidence precede
the opinion. This is a matter that could not easily be reduced to rules,
and thus is best left to the discretion of the trial judge.

748

The Advisory Committee explained the role of cross-examination as

follows:
If the objection is made that leaving it to the cross-examiner to bring out the supporting
data is essentially unfair, the answer is that he is under no compulsion to bring out any
facts or data except those unfavorable to the opinion. The answer assumes that the
cross-examiner has the advance knowledge which is essential for effective cross-
 examination. This advance knowledge has been afforded, though imperfectly, by the
traditional foundation requirement. Rule 26(b)(4) of the Rules of Civil Procedure, as
revised, provides for substantial discovery in this area, obviating in large measure the
obstacles which have been raised in some instances to discovery of findings, underlying
data, and even the identity of the experts. [Emphasis added.]
The Advisory Committee's answer to bringing out supporting data
may be sufficient for civil cases. In criminal cases, where discovery
traditionally has been more limited, the cross-examiner may be at a
serious disadvantage if the underlying facts and data are not revealed
on direct examination. In such a case it would be appropriate for the
trial judge to require that the bases for the opinion be elicited on
direct examination.

KEY POINTS
1. Under FRE 703, an expert may give opinion testimony on the
basis of admissible evidence “made known to” her by the
offering party's attorneys or by reviewing the evidence and
litigation documents. Under FRE 703 and 705, an expert is no
longer required to base her testimony on assumed facts posed
in hypothetical questions.
2. FRE 703 allows expert witnesses to base their opinions on
reasonably reliable but otherwise inadmissible facts or data. If
inadmissible, these facts must be of the sort that experts in
that field normally rely on. The underlying inadmissible facts
will normally not be disclosed to the jury.
3. Under FRE 703, inadmissible evidence reasonably relied on by
the expert will be disclosed to the jury only on a showing that
the probative value in helping the jury evaluate the opinion
substantially outweighs its prejudicial effect.
4. FRE 705 allows the offering party to have the expert testify to
her opinion before—or without—explaining its underlying
factual basis to the jury.
 PROBLEMS
9.7. Return to problem 9.4, at page 736, United States v. Cross.
What arguments can be made for admitting and excluding
evidence of some of the 100 other cases under FRE 703?
9.8. Wally Daniels is charged with murder and arson. The
prosecution's theory is that Wally killed his wife and then, at
about 7:00 . ., set fire to the house in order to make the death
look like an accident. Wally claims that he was not near the
house at the relevant times and that the fire was the result of
bad electrical wiring. The prosecutor's expert, a fire marshal,
offers to testify that in his opinion the

749

fire was the result of arson. The fire marshal is prepared to testify
about the bases for his opinion, which include, inter alia, the
following:
(a) interviews with next door neighbors, John and Wilma
Smith, who say they saw Wally running from the house at
about 7:00 . . shortly before they noticed the fire;
(b) a written police report prepared by Officer June Adkins,
stating that she was patrolling the area shortly before the
fire was discovered and that she observed an adult male
running from the defendant's house at about 7:00 . .;
and
(c) the fact that Wally had twice previously been convicted of
arson.
Wally has objected to all of this evidence. To support the
objection, he offers to prove that John Smith is an alcoholic
who almost daily is in an alcohol-induced stupor from 3:00 . .
until midnight. What result?
9.9. In a criminal trial, the defendant pleaded not guilty by reason of
insanity. The prosecution called a psychiatrist as an expert
witness to testify to an opinion that the defendant was sane at
the time he committed the criminal act. During direct
examination, the witness was asked how confident he was in
 his opinion. He responded: “Very confident. Indeed, I called Dr.
Smith, the world's leading expert in this particular area. I
explained the case and my diagnosis to him, and he concurred
in my conclusions.” The defense counsel objected and moved
to strike this answer. Should it be stricken?

D. OPINIONS ON AN ULTIMATE ISSUE

In the most radical rejection of the common law dealing with opinion
testimony, the Federal Rules explicitly permit opinion on ultimate
issues in all save one situation.

1. FRE 704
RULE 704. OPINION ON AN ULTIMATE ISSUE

(a) In General—Not Automatically Objectionable. An opinion is not objectionable just

because it embraces an ultimate issue.
(b) Exception. In a criminal case, an expert witness must not state an opinion about
whether the defendant did or did not have a mental state or condition that constitutes an
element of the crime charged or of a defense.

2. Explanation of FRE 704(a)

FRE 704(a) makes clear that opinion testimony by a witness on an
“ultimate issue” in the case is not per se inadmissible. The one
exception to this rule, stated in subsection

750

(b), is that experts can't opine that a criminal defendant has or lacks a
mental state that constitutes an element of the crime or defense.
Nothing in FRE 704(a) limits its application to expert opinions. The
rule covers both lay and expert testimony. The FRE 704(b) exclusion
applies only to expert witnesses, and only in criminal cases. See
United States v. Goodman, 633 F.3d 963 (10th Cir. 2011) (“there is no
[express] prohibition against allowing lay witnesses to give their
opinions as to the mental states of others”); Advisory Committee Note
to FRE 704.
An “ultimate issue” is not defined in the rule, but that term is best
thought of as synonymous with an essential element expressed in
case-specific terms. In other words, it is the case-specific factual
conclusion or inference that establishes one of the elements of the
claim or defense required by the substantive law—what we have
been identifying as FOC (EE) in the diagrams. An opinion on an
ultimate issue, in effect, makes the last inference that a jury must
make in order to find that an FOC (EE) has been proven.
While FRE 704(a) does not require exclusion of ultimate issue
opinions, it does not require their admission either. An opinion on an
ultimate issue will often be relevant, but the risk of usurping the role
of the jury by providing the last needed inference remains a concern.
Instead of automatically excluding such opinions, their admission will
depend on a judge's determination that the opinion is helpful to the
jury. Note that both FRE 701 (lay opinions) and 702 (expert opinions)
have a helpfulness-to-the-jury requirement as a condition of admitting
the opinion testimony.

3. FRE 704: Policy, Problems, and Applications

FRE 704(a). FRE 704 abolishes a previous common law rule that
lay and expert witnesses could not offer opinions on an ultimate issue
in a case. The typical rationale for this rule was that such an opinion
would invade the province of the jury. As Wigmore pointed out, it is
not clear how or why an opinion on an ultimate issue “invades the
province of the jury.” 7 John Henry Wigmore, Evidence §1920 at 18
(James Chadbourn rev. 1978). The rule drafters took the view that
this policy was better served by discretionary application of the
helpfulness requirements of FRE 701 and 702, together with FRE
403. “The basic approach to opinions, lay and expert, in these rules is
to admit them when helpful to the trier of fact. In order to render this
approach fully effective and to allay any doubt on the subject, the so-
called 'ultimate issue' rule is specifically abolished by the instant rule.”
Advisory Committee Note to FRE 704. Further, according to the
Advisory Committee, the rule against opinions on ultimate issues
generally served only to deprive the trier of fact of useful information. . . . Efforts to meet
the felt needs of particular situations led to odd verbal circumlocutions which were said
not to violate the rule. . . . [In] cases of medical causation, witnesses were sometimes
required to couch their opinions in cautious phrases of “might or could,” rather than “did,”
though the result was to deprive many opinions of the positiveness to which they were
entitled, accompanied by the hazard of a ruling of insufficiency to

751
support a verdict. In other instances the rule was simply disregarded, and, as
concessions to need, opinions were allowed upon such matters as intoxication, speed,
handwriting, and value, although more precise coincidence with an ultimate issue would
scarcely be possible.
FRE 704(b). Subsection (b) was added by amendment to the
original version of FRE 704, which simply abolished the categorical
“ultimate issue” exclusion. The legislative impetus for the change
arose out of John Hinckley's acquittal on insanity grounds of the
attempt to assassinate President Reagan, which led to substantial
public controversy over the insanity defense. Congress enacted
legislation that for the first time provided a federal statutory definition
for insanity and that made insanity an affirmative defense that must
be proved by the defendant. As part of that legislation, Congress
amended FRE 704 to add FRE 704(b).
According to the Report of the House Judiciary Committee (quoting
an earlier Senate Judiciary Committee Report):
The purpose of this amendment is to eliminate the confusing spectacle of competing
expert witnesses testifying to directly contradictory conclusions as to the ultimate legal
issue to be found by the trier of fact. Under this proposal, expert psychiatric testimony
would be limited to presenting and explaining their diagnoses, such as whether the
defendant had a severe mental disease or defect and what the characteristics of such a
disease or defect, if any, may have been. . . .
Moreover, the rationale for precluding ultimate opinion psychiatric testimony extends
beyond the insanity defense to any ultimate mental state of the defendant that is
relevant to the legal conclusion sought to be proven. The Committee has fashioned its
Rule 704 provision to reach all such “ultimate” issues, e.g., premeditation in a homicide
case, or lack of predisposition in entrapment.

What Is an Ultimate Issue? The question of what constitutes an

opinion on an ultimate issue would be academic, but for FRE 704(b).
Whether a lay opinion under FRE 701(a) “embraces an ultimate
issue” need not be determined precisely, because there the only
question is whether the opinion helps the jury. But because ultimate
opinions by experts on a defendant's mental state are excluded under
FRE 704(b), it becomes important to draw the distinction with clarity
only in those instances where expert testimony touches on a criminal
defendant's mental state.
Deciding what constitutes an opinion on an ultimate issue can raise
a challenging analytical problem. Consider a case in which the
defendant is charged with possessing cocaine with the intent to sell.
To prove intent to sell, the prosecution calls a narcotics investigator
who is prepared to offer the following expert testimony:
(1) A typical user or addict possesses X amount of cocaine for
personal use at any one time.
(2) The defendant possessed Y amount of cocaine, which is much
more than X, the amount a typical user or addict possesses for
personal use at any one time.
(3) The defendant possessed Y amount of cocaine, which is an
amount that usually suggests that the person intends to sell it.
(4) In my opinion, because the defendant possessed Y amount of
cocaine, he intended to sell it.

752

We've defined an opinion on the ultimate issue as the last factual

inference to be made in concluding that an essential element has
been proven. If that definition is right (and we think it is), then
statement (1) seems clearly permissible under FRE 704(b)'s ultimate
mental state opinion prohibition and statement (4) is impermissible.
But those are easy cases.
Statements (2) and (3) are much harder. Statement (3) is a bit
closer to the ultimate issue than statement (2). Both can be said to
require one inference more to reach the ultimate issue that the
defendant intended to sell cocaine. But it could be said that the
argument to exclude them under FRE 704(b) is that the “one
inference more” is trivially small, so that statement (3) and perhaps
even statement (2) are mere circumlocutions of statement (4). If
either of these statements were admitted, it could be argued, the
prohibition against opinions on an ultimate issue would appear to be
more one of form than of substance.
It could also be argued that statements (2) and (3) should be
admitted over an FRE 704(b) objection. The expert has not
specifically asserted that the jury should conclude that the defendant
intended to sell. The jury's finding of the defendant's intent may be
influenced by the presence or absence of other evidence on intent
aside from the amount in possession. Putting it another way, the jury
can accept the truth of statements (2) and (3) while, at the same time,
logically concluding that the defendant did not intend to sell. So long
as that is the case, arguably there remains one substantial inference
between the expert's opinion and the ultimate issue.
The best test we can articulate for defining an ultimate issue is
admittedly imperfect, but serviceable: An opinion does not “embrace
the ultimate issue” so long as the opinion can be accepted as true
without logically compelling the conclusion that the defendant had or
lacked the mental state in question. Statements (2) and (3) probably
pass this test, and our sense is that the majority of courts would
permit statements (2) and (3).
FRE 704(b) Policies and Problems. The above cocaine
prosecution example illustrates both the benefit and one of the
potential problems with opinions about matters that are, or are closely
related to, ultimate issues in a lawsuit. Jurors unfamiliar with the use
of drugs may not know what quantities of a particular drug individuals
are likely to possess for personal use. Thus, the narcotics officer's
testimony can be helpful—indeed, perhaps critical—to the jury's
evaluation of the defendant's intent. The narcotics officer's testimony
would be most helpful if the jury were assured of learning the basis
for the officer's opinion, for example, how much of the particular drug
a person can be expected to use in a given period of time and the
habits of drug users with respect to stockpiling. Yet the prosecutor
may fail to bring out all of the underlying data on direct examination
for fear of running afoul of the “ultimate opinion” rule, and defense
counsel may be reluctant to explore the matter on cross-examination
for fear of bolstering the officer's testimony. If the subject matter of the
opinion testimony is not critical to the resolution of the lawsuit, the
failure to develop the underlying facts may not be a problem of major
concern. It is particularly important, however, that jurors have as
much detailed factual information as possible on the ultimate issues
in a lawsuit, for the resolution of those issues is their primary
responsibility.

753

There are important countervailing policies in support of FRE

704(b). First, even if jurors have all of the underlying facts and data
and are fully capable of resolving the ultimate issues, the mere fact
that they hear witnesses express opinions on those issues may
mislead them into believing that they should give some special
deference to the opinions. Why else would the evidence be presented
to them? Second, if an opinion on an ultimate issue embraces a legal
concept or conclusion, there may be uncertainty about whether the
expert is using that concept in the same manner in which the law
uses it.
In support of its 1984 amendment adding subsection (b), the House
Judiciary Committee quoted from the American Psychiatric
Association's Statement on the Insanity Defense (1982):
[I]t is clear that psychiatrists are experts in medicine, not the law. As such, it is clear that
the psychiatrist's first obligation and expertise in the courtroom is to “do psychiatry,” i.e.,
to present medical information and opinion about the defendant's mental state and
motivation and to explain in detail the reason for his medical-psychiatric conclusions.
When, however, “ultimate issue” questions are formulated by the law and put to the
expert witness who must then say “yea” or “nay,” then the expert witness is required to
make a leap in logic. He no longer addresses himself to medical concepts but instead
must infer or intuit what is in fact unspeakable, namely, the probable relationship
between medical concepts and legal or moral constructs such as free will. These
impermissible leaps in logic made by expert witnesses confuse the jury. Juries thus find
themselves listening to conclusory psychiatric testimony that defendants are either
“sane” or “insane” or that they do or do not meet the relevant legal test for insanity. This
state of affairs does considerable injustice to psychiatry and, we believe, possibly to
criminal defendants. In fact, in many criminal insanity trials both prosecution and
 defense psychiatrists do agree about the nature and even the extent of mental disorder
exhibited by the defendant at the time of the act.
Psychiatrists, of course, must be permitted to testify fully about the defendant's
diagnosis, mental state and motivation (in clinical and common sense terms) at the time
of the alleged act so as to permit the jury or judge to reach the ultimate conclusion about
which they and only they are expert. Determining whether a criminal defendant was
legally insane is a matter for legal factfinders, not for experts.
Do you think that jurors may sometimes have difficulty relating a
psychiatrist's diagnosis to the legal standard for insanity without some
expert assistance? If so, does the problem lie with the amendment to
FRE 704 or with the legal definition of insanity or both?
Even if a witness cannot offer an opinion about a defendant's
“sanity,” “premeditation,” “predisposition,” or other mental state, is it
likely that jurors will be unaware of what the witness feels about such
an issue? If not, of what practical benefit is the amendment to FRE
704? Keeping in mind that FRE 403, 701, 702, and 705 are available
to regulate opinion testimony about ultimate issues, do you believe
that the amendment to FRE 704 improved the Federal Rules of
Evidence? Notably, the Supreme Court has held that a state-law
equivalent of FRE 704(b) comports with due process. See Clark v.
Arizona, 548 U.S. 735 (2006) (rejecting due process challenge to
Arizona 704(b) equivalent that excluded testimony of psychological
experts as to whether the defendant had the requisite mens rea for
the crime on trial, while

754

allowing experts to opine on whether the defendant was mentally ill

and give observational testimony about the defendant's behavioral
traits).

KEY POINTS
1. FRE 704(a) permits an opinion by a lay or expert witness on an
ultimate issue, so long as the opinion is helpful to the jury. An
“ultimate issue” is the case-specific factual conclusion or
 inference that establishes one of the elements of the claim or
defense (an “FOC (EE)”).
2. FRE 704(b) prohibits expert testimony on the ultimate issue
where that issue is whether a criminal defendant did or did not
have a mental state that constitutes an element of the crime or
defense.

PROBLEMS
9.10. Return to problem 9.4, at page 736, United States v. Cross.
What arguments can be made for admitting and excluding the
opinion under FRE 704?
9.11. Corey Boyd was convicted by a jury in the United States
District Court for the District of Columbia for possession with
intent to distribute crack cocaine. Boyd was arrested after
police officers briefly spotted him on the street holding a plastic
bag between himself and another individual. The officers
observed the two men for only a couple of seconds, so they
could not see precisely what Boyd and his compatriot were
doing, nor could they tell who controlled the plastic bag that
was between them. Neither Boyd nor his compatriot was heard
to say anything, nor seen to do anything (other than look into
the plastic bag), and no money or drug paraphernalia was
seen or found. Both men ran upon being spotted by the police,
Boyd with the plastic bag still in hand. While being chased, he
threw the bag under a truck, and it was recovered by the
police. During his trial, the government introduced the expert
testimony of Officer Stroud, who testified that, on the basis of a
“hypothetical situation” exactly mirroring the facts of Boyd's
arrest, in his opinion, the hypothetical facts showed possession
with intent to distribute. Is there a problem with, or an
appropriate objection to, this testimony?
9.12. Edward Santos is being tried for threatening to kill President
Bill Clinton. In its attempts to prove the mental element of the
 crime, the prosecution elicits testimony from a psychiatric
expert that Santos's efforts to “throw people off his trail”
indicate that he “knew what he was doing was wrong.” As an
attorney for the defense, make an objection. Do you think you
will be able to persuade the judge that the statements should
be stricken from the record?

755

E. FRE 702–705: PRACTICAL APPLICATIONS

In this section, we present various practice issues and practical

applications of FRE 702 through 705.

1. Defining the Scope of Expertise

There is no such thing as an expert on everything. FRE 702 states
that a person “qualified as an expert by knowledge, skill, experience,
training, or education” may offer opinion testimony to the extent that
“the expert's scientific, technical, or other specialized knowledge will
help the trier of fact.” FRE 702 & subd. (a). Two key points follow from
the joint requirement of specialized knowledge to qualify as an expert,
and the need for this expert knowledge to assist the factfinder “to
determine a fact in issue.” (1) The expert's field of specialization must
be identified. And (2) the expert's opinion testimony must stay within
the field. The expert is a “specialist”—not a free-ranging know-it-all
who can opine on all matters outside of common knowledge. This
requires that the party offering the testimony and the party opposing it
pay careful attention to the scope of the expert's opinion.
In practice, it's typical for the offering party to state the subject
matter on which the expert will testify. This may be done in very
specific or more general terms. Opposing counsel must be alert to
whether the expert's qualifications reasonably support the claim of
expertise on the proposed subject matter of the testimony, and, then,
whether the testimony stays within the specified topics. Going outside
the scope of a witness's expertise can be properly objected to as
“improper opinion” or “beyond the scope of the witness's expertise.”
Consider, for example, an orthopedic surgeon who testifies for the
plaintiff in a personal injury case. Plaintiff's counsel states that the
orthopedic surgeon will “give opinions regarding the extent of
plaintiff's broken leg, his prognosis for healing, and the physical after-
affects of the plaintiff's broken leg.” Suppose the expert then offers
the following opinions:
(1) The bone will never completely fuse and will, therefore, be
permanently weaker than before the break.
(2) The plaintiff will be unable to run and will walk with a permanent
limp.
(3) The plaintiff will be unable to carry more than 40 pounds of
weight, or to run more than 20 yards without risk of re-injury to
the leg.
(4) The plaintiff will likely experience pain from standing in excess of
two hours at a time.
(5) The plaintiff will be unable to perform jobs that require running,
standing more than two hours at a time, or lifting more than 40
pounds of weight.
(6) The plaintiff will be precluded from resuming his former work in
the construction field.
(7) The plaintiff is unlikely to find new work that will match his former
income as a construction worker.

756

As a matter of common sense, Opinions 1 and 2 fit fairly within the

designated subject matter and expertise. Arguments might
reasonably begin with Opinions 3 and 4: defense counsel might
argue that these are outside the surgeon's field, and fall within
another area of specialization (e.g., the relatively new field of physical
medicine and rehabilitation). Yet that argument might be said to take
a very restrictive view of the expert's field. Opinion 5, while still within
the designated subject matter, is probably in a gray area at the
margin of the witness's expertise—the argument that the expert is not
qualified to give that opinion is stronger than the argument against
Opinion 4. Opinion 6 is something of a stretch for both the subject
matter and the expertise. If the surgeon can testify to having a lot of
experience in follow-up care with construction workers, perhaps the
subject matter could be redescribed to include this opinion. Opinion 7
is clearly outside the designated subject matter expertise of an
orthopedic surgeon. An occupational therapist or some other
specialist would be needed for this issue.

2. Types of Expert Opinions

Generalizations Versus Case-specific Assertions. The most
common form of expert opinion is rendered as a case-specific fact. A
physician testifies, “In my medical opinion, the plaintiff's son suffered
leukemia as a result of ingesting the chemical tri-chlorethylene in his
drinking water over a period of years.” This opinion goes to the
specific fact of causation in a specific toxic tort case.
But expert opinions can also take the form of generalizations.
Consider this example, from the Johnson trial. Johnson's cellmate
Butler testified that, after Johnson's initial refusal to hand over the
tray, the guards who returned to the cell door to retrieve Johnson's
tray were wearing gloves. The relevance argument was that by
putting on work gloves, the guards outwardly revealed an intent to
beat up Johnson. The following diagram illustrates:

If the prosecution wanted to object to this evidence as irrelevant, its

argument would necessarily focus on the debatable generalization in
the first inferential step. Could a reasonable jury believe, in general,
that guards put on work gloves right before going to an inmate's cell
because they probably intend to beat up the inmate? Again, if the
judge doubts this generalization, he could require that it be replaced
with case-specific evidence: Perhaps there is testimony that one of
the guards said, “Let's put on the boxing gloves!” But suppose there
is no such case-specific evidence, and that Johnson's relevance
argument relies entirely on inference from the generalization to

757

supply the missing fact (why did the guards put on gloves?). Here,
the judge might ask: Is the glove-wearing behavior of prison guards a
matter of common sense and common knowledge of jurors?
If the answer to that question is “no,” the judge might require the
opinion of an expert witness. Expert witnesses testify about matters
outside the common knowledge of jurors. Johnson would need
someone who, through experience, training, or study, has acquired
specialized knowledge about prison guard behavior to offer an expert
opinion to help the jury determine the significance of the gloves.
Indeed, Butler might qualify as an expert based on sufficiently long
experience with prison culture, or with Pelican Bay's prison culture, as
an inmate.
An increasingly common example of expert opinions in the form of
generalizations occurs in eyewitness identification cases. The expert
opinions typically take the form of a generalization about cognitive
biases and other perception problems that can reduce the accuracy
of eyewitness identifications. The jury is asked to consider those
“facts about the world” in deciding how much weight to give the
testimony of an eyewitness who identifies the defendant. Indeed,
while courts increasingly admit such testimony, most expressly
prohibit the expert from rendering a case-specific opinion on the
accuracy of the eyewitness identification in the case at hand. (These
are discussed further at the end of this chapter, at pp. 793-94.)
For present purposes, the point is to understand that expert
testimony can be used to supply a missing generalization that
establishes the relevance of an important piece of evidence. FRE 702
requires that expert testimony must “help the trier of fact to
understand the evidence or to determine a fact in issue.”
Generalizations can meet this test in the appropriate circumstances.
There is no requirement that admissible expert opinions always
express case-specific conclusions.
Ultimate and Subsidiary Opinions. An expert's testimony will
usually consist of one or a small number of ultimate opinions. But
these might depend on a number of subsidiary, more specific
opinions. For example, a plaintiff's expert in a police excessive-force
case might offer the following overarching or ultimate opinion: “In my
opinion, the use of deadly force by officer Smith in this case was
excessive.” In explaining this opinion, the expert might say, “Officer
Smith could have gotten Mr. Jones [the plaintiff's decedent] under
control by kicking Mr. Jones's legs out from under him, putting him
down on the ground, and handcuffing him.” Further, “Mr. Jones was
not threatening serious bodily harm.”
Note that the two assertions offered in support of the ultimate
conclusion, that Smith could have gotten control over Jones without
deadly force and that Jones was not threatening serious bodily harm,
could be characterized as “facts” or “opinions.” As we discussed in
the context of lay opinions under FRE 701, the fact/opinion distinction
is indefinite, and often based on contextual or functional
considerations. Here, a court is more likely to consider the assertions
as opinions, since they are disputed, close to the dispositive issue,
and can be broken down into further detail. But note, too, that the
fact/opinion distinction here is academic. There is no requirement in
FRE 702 that opinions be stated at the highest level of generality or
that an expert can offer only an “ultimate opinion,” nor does any
language in the FRE suggest that

758

subsidiary, more specific opinions are inadmissible. At the same

time, opinions can be based on “facts or data.” So the underlying
assertions in this example are allowable whether characterized as
“fact” or “opinion.”
 Opinions on Questions of Law. A common law rule barred
opinion testimony on questions of law, deeming them to be either
“purely legal” matters for the judge rather than the jury to decide, or
else “mixed questions of law and fact” that were ultimate issues for
the jury. As noted above in our discussion of lay opinions (see page
706), questions for the judge to decide should not be the subject of
evidence presented to the trier of fact in any event. But opinion
testimony going to the factfinder's duty to apply facts to the legal
elements of a claim—“ultimate issues” in former parlance—should not
be objectionable as calling for “a legal conclusion.” Such opinion
testimony is properly viewed as coming within the scope of FRE 704,
and should be disallowed only if it is unhelpful to the jury. You still
may encounter courts sustaining objections to questions calling for “a
legal conclusion” when what they really mean is that it is an ultimate
issue opinion that is unhelpful to the trier of fact.
Indeed, it is not unknown (and certainly not forbidden) in litigation in
highly specialized areas of the law, such as antitrust or intellectual
property matters, to present opinion testimony from legal experts on
ultimate issue questions involving interpretations of complex statutes
and legal doctrines.

3. Types of Experts
Experts can play various roles in a litigated case. Procedure and
evidence rules may vary somewhat, depending on whether the expert
witness was hired (“retained”) for the express purpose of testifying in
the case, or was instead actually involved in the litigated events. A
second distinction is drawn among hired experts between those hired
to give opinion testimony, and those who consult behind the scenes
to help the attorneys prepare the case.
a. Retained Versus Percipient Experts
“Retained” experts are hired for the purposes of rendering expert
testimony or consultation in the litigation. But experts may have been
involved in the underlying litigated events. A physician who treated a
person injured in a crime or tort can be a percipient witness to
relevant events when that case is litigated. Investigating law
enforcement officers, accountants, engineers, or experts of all sorts
may have played some role in litigated events. We refer to such
experts here as “percipient experts,” to reflect the fact that they may
have relevant information both as lay witnesses testifying from direct
perception under FRE 602 and as witnesses whose expert opinions
about what they saw or heard are relevant to the case. Although the
Federal Rules of Evidence do not distinguish between these two
types of experts, the distinction between them matters for certain
evidence-related purposes.

759

Disclosure in Civil Cases. The formal distinction between retained

and percipient experts can be found in the Federal Rules of Civil
Procedure. Rule 26(a)(2)(B) refers to an expert witness who is
“retained or specially employed to provide expert testimony in the
case or one whose duties as the party's employee regularly involve
giving expert testimony.” All experts, whether retained or percipient,
must be disclosed under F. R. Civ. P. 26(a)(2)(A): “[A] party must
disclose to the other parties the identity of any witness it may use at
trial to present evidence under Federal Rule of Evidence 702, 703, or
705.” Typically, this must be done 90 days before trial.5 But retained
experts are subject to special disclosure requirements: Their
disclosure must include a detailed packet of information. This so-
called expert report must include “a complete statement of all
opinions the witness will express and the basis and reasons for
them,” including supporting facts, data, and exhibits. The report must
be accompanied by a statement of the witness's expert qualifications
(typically, a résumé or curriculum vita (“CV”)), a list of other cases in
which the witness testified as an expert going back four years, and a
statement of the witness's compensation. F. R. Civ. P. 26(a)(2)(B).
Disclosure of nonretained experts must meet the 90-day advance
disclosure requirement, but need only contain a description of the
subject matter and “a summary of the facts and opinions” about which
the witness will present expert testimony.
 The purpose of these disclosures is to allow the other side to
conduct discovery relating to the expert's testimony. Primarily,
discovery of expert testimony is conducted through the deposition of
the expert, which can be taken on relatively short notice. There is
insufficient time to serve written party discovery on the expert witness
(interrogatories, document requests), since expert witness
disclosures are normally made very close to the “discovery cutoff”—
the date set by the court in which to “complete discovery” under Rule
16(b)(2). However, since the expert report must be detailed and must
include supporting exhibits, the need for document requests is
obviated.
The practical difference here is that the opposing party will receive
considerable information to use in deposing and cross-examining a
retained, but not a percipient, expert prior to taking the expert's
deposition.
Disclosure in Criminal Cases. Under the Federal Rules of
Criminal Procedure, Rule 16(a)(1)(G), the prosecution must give the
defendant, on request, a written summary of any expert testimony it
intends to use during its case-in-chief at trial. The defense's
disclosure obligation is not symmetrical: It must disclose a written
summary of any expert testimony it plans to use at trial if either (1)
the prosecution has complied with the defense request, above; or (2)
the defense has given notice of an intent to present expert testimony
on the defendant's mental condition. See F. R. Crim. P. 16(b)(1)(c).
There is no provision for pretrial depositions or further discovery into
the expert opinion, as there is in civil cases.

760

Qualifying Experts “On the Fly.” Consider the following testimony

from the Johnson trial:
Prosecutor, Mr. Cummings: At that point in time did somebody order the door be opened?
Correctional Officer Huston: Yes. Officer Smith.
Q: And is that an appropriate method to get back the trays?
A: Yes.
Mr. Deemer: Excuse me. A, lack of qualifications; B, lack of foundation; and, C, it's leading.
The Court: Are you asking for an expert opinion, Mr. Cummings?
 Q. by Mr. Cummings: Officer Huston, you stated that you have worked as a correctional
officer at Pelican Bay for six years?
A: Yes.
Q: And during those six years, did you receive special education and training for your job?
A: Yes.
Q: What was that?
A: There are training manuals, and training courses for correctional officers on-site and
throughout the state that we attend.
Q: And does this training include the handling of specific problems that inmates sometimes
cause?
A: Yes it does.
Q: And based on this training, do you have an opinion on the proper means to handle
situations like inmate Johnson's, that is, on whether it is appropriate to open the cell
door? Just tell us whether you have an opinion.
A: Yes I do.
Mr. Cummings: I would offer Officer Huston's opinion now based on his special experiences
and training at Pelican Bay.
The Court: You may answer.
Q. by Mr. Cummings: Is opening the cell door an appropriate way to get back the food
trays?
A: Yes, on the General Population side it is. [He proceeds to elaborate.]
In the foregoing example, the prosecutor asked a percipient witness
for what was arguably considered an expert opinion. The answer
required specialized knowledge beyond ordinary common knowledge,
based on training and experience. You can also see that the
prosecutor had not planned to qualify Officer Huston as an expert in
anything. But following the objection and the court's question,
prosecutor Cummings spontaneously asked a few voir dire questions
to establish Huston's expertise in prison procedures. The court
allowed this rather informal qualification of Huston as an expert.
Given the comparatively lax rules about disclosure of experts in
criminal cases, perhaps this was technically proper. On the other
hand, in a civil case, such ad hoc, “on the fly” attempts to qualify an
expert witness would seem to violate the disclosure rules of F. R. Civ.
P. 26(a)(2)(C). That would provide a ground to object to such expert
testimony.

761

In practice, however, courts may not always be strict about this

even in civil cases. The problem is that there are too many situations
in too many cases where ordinary people gain a limited amount of
specialized knowledge not known outside a particular workplace or
other specialized community. Is a clerical worker an “expert” in his
employer's particular intra-office procedures for assigning e-mail
addresses? At what point does training become sufficiently
specialized to qualify for expert treatment under FRE 702? Courts are
unlikely to have frequent occasion to answer such imponderables,
because they arise only where (1) the matter is characterized as an
“opinion” rather than a fact observed firsthand, and (2) the opinion is
reasonably claimed to be one involving specialized knowledge. In
borderline cases, a court is likely to allow the testimony by
characterizing it as fact, or lay opinion, or perhaps by allowing an “on
the fly” qualification of the witness as an expert, as in the Johnson
excerpt, above.
Nevertheless, a significant potential problem remains. There can
sometimes be a strong incentive on the part of attorneys to try to
frame what really should be expert opinions as lay opinions. Doing so
can avoid the strictures of FRE 702, and the procedural notice
requirements cross-referenced to it. As a practitioner, you should be
on guard against this.
b. Consultants versus Testifying Experts
Not all retained experts give testimony. Experts might also be hired
to assist lawyers in fact investigation, trial strategy, and other trial
preparation. Consider a complex business lawsuit involving
sophisticated accounting issues. The lawyers handling the case may
not be able to understand the basic case facts without assistance
from an accountant. Similarly, in Anderson v. Cryovac, the toxic tort
case portrayed in the nonfiction book A Civil Action (and portrayed
more loosely in the 2000 film by the same title), plaintiffs' attorney Jan
Schlictmann retained a geological expert during the prefiling
investigation of the case to help him determine whether chemicals
dumped by nearby industries could have leached into the ground and
reached the city's drinking-water wells. Schlictmann hired different
experts to provide trial testimony on this point.
 The key evidence implication of this distinction between testifying
and nontestifying experts stems from differences in what those
experts are required to disclose. No disclosures need be made
regarding nontestifying consulting experts. Work performed by
nontestifying experts has always been deemed “trial preparation
material” subject to the qualified work product privilege. See F. R. Civ.
P. 26(b)(4)(D). A party might even claim work product protection for
the identity of such consultants and even the fact that they were
hired.
The scope of discovery of testifying experts is notably broader. The
opposing party is entitled to inquire into all the facts considered by the
expert, as well as the full details of the methodology employed by the
expert in reaching a conclusion. But as amended in 2010, F. R. Civ. P.
26(b)(4)(B) and (C) place restrictions on what was formerly
discoverable from experts. Prior to the 2010 amendment, it was
generally assumed that anything said or shown to the testifying
expert by the attorney was discoverable—subject to mandatory
disclosure to the opponent through the civil discovery process.
Practitioners sometimes said that when talking to your expert, you
should act as if there is a microphone in the room transmitting directly
to opposing counsel. This

762

former rule was based on the fiction that expert witnesses were
completely objective and independent analysts of the facts. The
former rule made it exceedingly difficult to prepare experts for their
deposition and trial testimony, and virtually impossible to consult with
them about trial strategy and tactics. Under the current rule,
communications between the expert and the attorneys retaining her,
as well as preliminary drafts of expert reports, are protected as
attorney work product to the same degree as other “trial preparation
materials” under Rule 26(b)(3). The older “microphone-in-the-room”
rule may still be operative under some state practice codes.
With the rule change limiting discovery of testifying experts'
preliminary work, the utility of nontestifying experts seems to be
somewhat diminished. Nevertheless, Rule 26(b)(4)(D) specifically
provides that discovery cannot be made into the opinions of
nontestifying experts absent a showing of exceptional need. The
nontestifying expert still provides a much surer and safer avenue to
expert consultation on case strategy without fear of disclosure.

4. Working with Experts

When Do You Need an Expert Witness? In some cases experts
are necessary, in other cases optional. Where a party cannot prove
an essential element of the case based on commonsense inferences
from facts perceived by witnesses with personal knowledge, an
expert is required. In Daubert, for example, no percipient witness
could observe firsthand the effect of the drug Bendectin on a human
fetus. In Anderson v. Cryovac, described above, no percipient witness
could observe firsthand the leaching of chemicals from the
defendants' manufacturing plants into the ground water and their flow
into the city's wells. Circumstantial evidence of firsthand witnesses
would undoubtedly be held insufficient by a court to meet the burden
of production on causation. A witness could say, “I saw the chemical
dumped on the ground. A few months later, the drinking water tasted
funny.” The plaintiff in Daubert could testify to taking Bendectin during
pregnancy and to the appearance of her newborn baby. But these
examples would fall far short of what a court would accept as proof of
causation: Too many other things could have happened to allow a
causation inference to be drawn from these remote before-and-after
stories.
In sum, expert testimony is required when a fact necessary to a
party's theory of the case can't be directly perceived, or reasonably
inferred from circumstantial facts that were perceived by witnesses
with firsthand knowledge. As noted above, where a generalization
needed to connect two facts perceived firsthand falls outside common
knowledge, expert testimony will be required there, too. In addition,
where complex calculations have to be made, even on the basis of
evidence that is not itself complex, experts are usually required. A
common example involves calculations of money damages where
past losses include compound interest, or future losses must be
reduced to present value.6 A forensic economist is typically called to
provide such testimony.

763

Expert testimony is optional where the necessary inferences or

conclusions are deemed to be matters of common sense and
common knowledge, but are also subjects of expert study, training, or
experience that can improve the jury's understanding of the facts.
These are, in essence, gray areas at the border between common
and expert knowledge, and there are many of them. Whether a
person is intoxicated, whether a person acted in reasonable self
defense, whether a police officer used excessive force, whether a
certain type of injury would produce emotional distress in the victim
are just a few examples. The list is as unlimited as are the plausible
areas of expertise about everyday occurrences and conditions. In
such matters, whether to call an expert witness is a strategic
decision, not a legal requirement.
Sometimes percipient witnesses can present more compelling
testimony than experts, as the following actual case illustrates. A
developmentally disabled man who was unable to speak, was briefly
employed as a janitor by a national pizza restaurant chain. He sued
for disability discrimination after he was fired from his job just three
weeks after he had started work. A visiting district manager made
statements suggesting an aversion to the plaintiff's disability, and
ordered the plaintiff fired. A number of former employees of the
restaurant, who quit in protest of the plaintiff's firing, testified to these
revealing comments by the district manager. On the issue of
damages, the employer presented testimony by an expert witness, a
psychiatrist, who opined that it was unlikely that the plaintiff suffered
any emotional distress, primarily because the plaintiff had held the job
only a short time and because his inability to use language suggested
a lack of emotional sensitivity to such an incident. Rather than calling
an expert to rebut this testimony, the plaintiff introduced testimony of
family members and coworkers that the plaintiff woke up early every
morning to go to work, and that he frequently smiled on the job;
whereas, after his firing, he lost weight, became withdrawn, and
stopped shaving. The jury found the employer liable and awarded
$13 million in damages—obviously rejecting the expert testimony.
(Under the damages caps of the Americans with Disabilities Act, this
award was reduced to $300,000.) See David Callendar, Jury awards
disabled man $13 million, The Capital Times (Madison, Wis., Nov. 6,
1999).
Finding Subject Matter Experts. It can be challenging to find an
expert witness for your case. As a lawyer, your professional
colleagues are likely to be other lawyers, so your network of
acquaintances may not include physicians, accountants, or scientists
who are interested in testifying in a court case.
To find an expert witness, the first thing you need to do is think
about the issues on which expert testimony is needed, and use your
own knowledge about the world to try to identify the appropriate field
of specialization. From there your research is likely to differ from
standard legal research. Using more general research techniques,
you might be able to refine the field of specialization (e.g., “geriatric
oncology” as opposed to “general oncology” or “general medicine”).
Consulting with colleagues in your firm or outside it, you may get
some leads about experts other lawyers have used (or opposed) in
litigation. Some legal research databases have expert witness
directories and transcripts of expert witness testimony. Once you start
getting names, you can start a winnowing-down interview process. In
a brief conversation with a potential

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expert, you might learn more about relevant subspecialties. After

describing the facts of your case in a general way, perhaps the expert
says, “This isn't exactly my field; what you need is a ___.”
When you have narrowed down your list of candidates, you have to
start considering more practical issues. Are the expert's qualifications
sound and impressive? Can the expert, in good faith, offer a reliable
opinion that meets the needs of your case? Does the expert seem as
though she will make a convincing, appealing witness before a jury?
Are her rates affordable given the economics of the case and your
client's ability to pay?

5. Direct and Cross Examination of Experts

Direct Examination. The rules of direct examination apply to expert
witnesses with certain modifications. Traditionally, it was required to
start the expert examination with “voir dire” (not to be confused with
jury voir dire discussed in Chapter Two), in which the direct examiner
would elicit the expert's qualifications. When the direct examiner
believed he had done enough, he would offer the witness as an
expert on a stated subject matter. The court would then signal
acceptance of the expert.
Federal court and many state courts now dispense with these
formalities. The “offer” was deemed awkward since it might convey to
the jury the judge's approval of the persuasiveness of the expert's
opinion, rather than simply its reliability and admissibility. As for the
qualifications, it is likely in contemporary trials for the expert to have
been prescreened by the judge during summary judgment or a
pretrial conference; or the opposing counsel may be willing to
“stipulate” (agree) that the expert is qualified in order to dispense with
the voir dire. As the party offering the expert, it is a mistake to
dispense with voir dire. The jury needs to hear the expert's
qualifications to properly assess the reliability of the testimony, both
as a matter of persuasion and logical relevance. And you need to be
absolutely certain that the witness's qualifications are somewhere in
the record for appeal purposes. Under current practice in most courts,
you will complete your voir dire—usually a series of questions to have
the expert present their résumé in an abbreviated, verbal form. You'll
then go straight into the substance of the testimony without “offering”
the witness.
FRE 705, as noted above, permits you next to go straight to the
witness's ultimate opinion, if you choose. It is probably required to
have the witness explain the methodology, and you will want the
expert to explain as much as possible of the underlying facts
considered to show the thoroughness of the expert's analysis. This is
subject to the limits of FRE 703, discussed above.
As a matter of tactics and of the requirements of FRE 611, you will
conduct your examination primarily with nonleading questions. FRE
611 generally requires nonleading questions on direct, and you want
as much as possible for the jury to be persuaded that the expert
knows what she is talking about. If you supply the answer with
leading questions, you diminish this impression. That being said, FRE
611 allows the judge latitude to allow leading questions on direct to
facilitate a clear presentation of evidence. Where the expert's
testimony is lengthy and complicated, filled with

765

technical terms, or (heaven forbid) confusing, courts will often allow

the direct examiner leeway to pose a leading “sum-up” question, in
layman's terms if possible: “So, what you're saying is ___.”
While evidence law usually permits practical communication rather
than magic words, with expert testimony, there are sometimes magic
words required by case law to meet an applicable burden of proof
with expert testimony. For example, some federal or state courts
require a medical expert to couch the opinion as having “a
reasonable degree of medical certainty.” Where the expert testimony
is your sole proof of an essential element (like causation), the expert's
degree of certainty needs to meet or exceed your burden of
persuasion. In the Ninth Circuit decision in Daubert after remand from
the Supreme Court (“Daubert II”), the Court of Appeals reaffirmed its
earlier decision to exclude the plaintiff's medical experts. Some of
those experts were excluded because they testified that it was merely
“possible” that Bendectin caused the birth defects. The court
observed that, even if believed, this testimony could not support the
necessary jury finding that the drug probably (more likely than not)
caused the plaintiff's injuries. In Daubert II, it may have been
reasonable for the court to conclude that the experts' hedging on
probability did indeed fail to meet the burden of proof. In other cases,
the requirement of specific language to express probability (e.g.,
“reasonable degree of medical certainty”) might seem to elevate form
over substance. Either way, you must carefully research the question
of how your expert's testimony has to be framed to meet your burden
of proof.
Cross-examination. Cross-examination of experts is challenging
because, as the questioning lawyer, you are likely dealing with
someone who knows her subject matter better than you do. FRE 702
implies various avenues to discredit the expert's opinion. You can try
to attack the expert's qualifications, though unless your opponent has
done a poor job by retaining an obviously unqualified expert, this is
unlikely to be fruitful. A slightly better option might be to show that the
expert is a biased “hired gun”—perhaps because the expert's résumé
shows that he has always testified on one side of the kind of case in
question, or because expert testimony is his main source of income,
or because he makes frequent presentations at trade shows to drum
up business. But juries often resent personal attacks on witnesses, so
the utility of this approach, too, may be limited to extreme cases.
FRE 702(b)-(d) tell us that a reliable opinion must be based on
sufficient facts and data, reliable methodology, and reliable
application of that methodology to the facts and data. This suggests
three further avenues of attack. Attacking the witness's methodology
in general (subdivision (c)) is the most difficult, because this is where
the expert usually holds the greatest knowledge advantage over the
lawyer. Unless the expert is an obvious quack, in which case he is
unlikely to have gotten past a screening for qualifications, you are
likely to need assistance of your own expert to help you see any
methodological problems. The same goes for the application of
methodology in subdivision (d), with one exception. You can always
score a few points by showing what the expert didn't do in analyzing
the case. Unless your adversary has an unlimited expert budget, and
the expert has a lot of time to spend, the expert witness is likely to
have economized somewhere in working up his analysis. “You didn't
read the deposition of [key witness X]” or “You have an opinion of my
client's emotional state, but

766
 you've never actually spoken with him,” will give the jury something
to think about in considering how much weight to give the expert
testimony.
The most promising avenue of cross-examination is often to attack
the validity of the underlying facts and data. Even the most reliable
methodology will produce an incorrect result when applied to
incorrect facts. (“Garbage in, garbage out” in accounting and
computer lingo.) It is very common for expert witnesses to base their
opinions on the disputed version of key facts asserted by the party
calling the expert. You can sometimes get the expert to admit that if
your side's version of events were true, the ultimate opinion would be
different. “You have testified that Officer Smith's use of force was
excessive because the plaintiff was unarmed. But if the plaintiff had
been armed, your conclusion would be different?”
When cross-examining experts, it is particularly important to be
disciplined about asking leading rather than open-ended questions.
Expert witnesses are disposed by their educative role to speak at
great length, so asking any nonleading question—most particularly,
“Why?” or “Can you explain?”—almost guarantees a long, self-
serving answer. You have to try your best to control the expert with
short, leading questions, and avoid as much as possible trying to get
the witness to agree with your major arguments. The expert is likely
to argue back. At the same time, because the expert purports to have
superior knowledge of his subject in contrast to a lay witness, the
judge is likely to be less protective of expert witnesses, giving you
more latitude to argue with the witness or cut off a long-winded
answer with your next question.

KEY POINTS
1. Expert witnesses must confine their opinions to the scope of
their qualifications and to the subject matter on which they're
called to testify. This boundary is not always completely clear.
2. Experts testifying in civil cases must be disclosed at least 90
days before trial under the Federal Rules of Civil Procedure.
 As part of this disclosure, those hired for the express purpose
of testifying, or whose job duties include regular expert
testimony, must provide detailed background information on
their qualifications and on their opinions in the case. Experts
who are also percipient witnesses need not provide such
information, but must still be identified 90 days before trial.
3. Experts hired to consult for trial preparation and strategy, but
not testimony, need not be disclosed. Their work is protected
by the attorney work product doctrine.
4. Expert testimony must be used to prove an essential element
of the case where that element can't be proved by
commonsense inferences from facts perceived by witnesses
with personal knowledge. Expert testimony is optional where
the necessary inferences or conclusions are deemed to be
matters of common sense and common knowledge, but are
also subjects of expert study, training, or experience. Where
common and expert knowledge overlap, the expert testimony
will be admissible, and may be desirable, if it can improve the
jury's understanding of the facts.

767

PROBLEMS
9.13. Return to one of the expert witness problems, above, and try
to outline a brief direct and cross-examination of the expert
witness in question. We recommend problems 9.4, 9.6, or 9.8
as particularly well suited to this exercise.
9.14. Scott Michaels is a professor of law at the Wisconsin State
University Law School. His area of research specialization is
community policing, which includes the building of ties between
a police department and its local community, including its high-
crime areas, as well as community-based alternatives to
reliance on a strong police presence as a deterrent to crime.
Prior to becoming a professor, Michaels was a police officer in
 Green Bay, Wisconsin (a city of approximately 105,000 people)
for ten years, rising through the ranks from a patrol officer to
the rank of lieutenant. He then attended law school, and after
graduating, was hired as chief of police of La Cross,
Wisconsin, a city of approximate 52,000 people. He served in
that job for four years before being hired onto the law faculty at
Wisconsin State.
Michaels has been retained as an expert witness in a federal
civil rights suit arising out of an alleged excessive force incident
in Kansas City, Kansas, in which an allegedly nonresisting
suspect was shot and wounded. The plaintiff claims that the
use of deadly force was unreasonable and excessive. He has
sued the individual officer, Darrell Spear, for using excessive
force, and has sued Kansas City for inadequately training its
officers in the use of force. Michaels has been offered as an
expert on “the appropriate use of force by police officers in
arrest situations.” His opinions will include the following
assertions:
(1) Deadly force was unreasonably used in this case;
therefore, force was excessive.
(2) Defendant Darrell Spear was inadequately trained.
(3) Kansas City improperly trains its officers in the use of
deadly force, because Spear should have been fired
based on a previous incident in which he hit a handcuffed
suspect with his flashlight.
Prepare a direct and cross-examination of Professor
Michaels. Consider all possible objections to his testimony and
responses to those objections.

F. REFLECTIONS ON EXPERT TESTIMONY

1. Data on the Use of Experts in Litigation

The following studies are now several years old, but there is no more
recent research indicating that the extent of expert usage has
significantly diminished. They thus provide a useful snapshot of the
usage of experts in federal court.

768

SAMUEL GROSS, EXPERT EVIDENCE

1991 Wis. L. Rev. 1113, 1118-1120

There is next to nothing to be learned from published data on the
use of experts in American litigation. A few patchy studies report that
experts are used in a sizeable minority of felony prosecutions, and
that they are more likely to be called by the prosecution. There are no
systematic studies of the use of experts in civil cases. The data
described here will begin to fill that gap. They are based on reports
on 529 civil trials that led to jury verdicts in California State Superior
Courts in 1985 and 1986 . . . .
1. The frequency of expert testimony. Experts testified in 86 percent
of these civil jury trials. Overall, there were an average of 3.3 experts
per trial; in the trials in which any experts appeared, there were an
average of 3.8. Most trials with experts had two, three, four or five of
them. Plaintiffs called more expert witnesses than defendants—about
64% of the total.
2. The specialties of expert witnesses. Half of the experts in our
data were medical doctors, and an additional 9 percent were other
medical professionals—clinical psychologists, rehabilitation
specialists, dentists, etc. Engineers, scientists and related experts
made up the next largest category, nearly 20 percent of the total. The
only other sizeable categories were experts on various aspects of
business and finance (11%), and experts in reconstruction and
investigation (8%).
3. The cases in which experts appear. Over 70 percent of these
trials concerned claims of wrongful death or personal injury. As a
group, these trials involved more experts than the remainder. There
were expert appearances in nearly 95 percent of the personal injury
or death trials, an average of 3.8 witnesses per case. Looking at
smaller categories, the highest rates of use were in: (i) medical
malpractice cases (97% of trials, an average of five witnesses per
trial), where almost all the witnesses were medical experts and (ii)
products liability cases (100% of trials, an average of 4.7 witnesses
per trial), where an unusually high proportion of the witnesses (1.8
per trial) were engineers, scientists and the like.
4. Conflicts between opposing experts. In nearly three-quarters of
the trials in which experts testified (or 63% of all trials) there were
experts on both sides. In two-thirds of the trials with expert testimony
(57% of all trials) there were opposing experts in the same general
area of expertise—most often, opposing medical experts. Similarly,
for over two-thirds of the appearances by expert witnesses, there
were opposing experts in the same general area. Again, such
conflicts were particularly common for medical witnesses—their
testimony was opposed by other medical witnesses 78 percent of the
time. In sum, most expert witnesses were disputed by similar experts
for the opposing side, and most juries had to resolve such disputes.
5. The testimonial experience of expert witnesses. Most expert
testimony is given by repeat players. Nearly 60 percent of the
appearances by expert witnesses in California Superior Court civil
jury trials were by witnesses who testified in such cases at least two
times over a six-year period. For a particular appearance before a
jury, the average number of times the same expert testified over a six-
year period was 9.4; the median was 2.2. It is important to note that
these numbers greatly underrepresent the experts' total experience in
litigation. They do not, for instance, include testimony in criminal

769

trials or in civil trials in courts other than California State Superior

Courts. More important, the numbers do not catch the many cases in
which the same experts were consulted, wrote reports, or even
testified in depositions, but failed to testify in court because the cases
were settled or dismissed before trial.
One way to put the trial experience of witnesses in perspective is to
compare it to that of trial lawyers. Judging from the 1985-1986 cases,
when an attorney examines an expert witness in a civil jury trial in
California, the expert is twice as likely to have testified in another
such case in the preceding six months as the attorney is to have tried
one (42% to 21%).

CAROL KRAFKA ET AL., JUDGE AND ATTORNEY

EXPERIENCES, PRACTICES, AND CONCERNS
REGARDING EXPERT TESTIMONY IN FEDERAL CIVIL
TRIALS

Federal Judicial Center (2002)

Questions that remain about expert evidence far outnumber those
that research has begun to address. . . . What types of cases, for
instance, are most likely to involve expert testimony? What types of
experts testify, how frequently do they appear, and on whose behalf
are they testifying? What issues do the experts address? . . . The
research we report here involved [three] surveys of judges and
attorneys. Data sources included a 1998 survey of [303 U.S. district
court] judges, a 1991 survey of [335 U.S. district court] judges, and a
1999 survey of [302] attorneys [involved in district court cases
presided over by the aforementioned judges]. The most frequent
types of [federal] trials involving experts—45 percent of the 299 trials
reported—were tort cases, primarily those involving personal injury or
medical malpractice. Tort cases were followed in frequency by civil
rights cases (23%); contract cases (11%); intellectual property cases,
primarily patent cases (10%); labor cases (2%); prisoner cases (2%);
and other civil cases (8%).
To gauge whether expert testimony is differentially associated with
certain case types, we compared the distribution of sample cases to
the distribution of all federal civil cases terminating during or after a
bench or jury trial in the year before and year of our survey.
Compared to all civil trials, experts were overrepresented in tort
cases (which constituted only 26% of all civil trials) and intellectual
property cases (3% of all civil trials). Experts were underrepresented
in contract cases (14% of all civil trials); labor cases (4% of all civil
trials); general (nonprisoner) civil rights cases (31% of all civil trials);
and prisoner cases, nearly all of which are civil rights actions (14% of
all civil trials). In cases classified as “other” civil trials, experts were
represented in equal proportion to the general case type (8%).
Ninety-two percent of reported trials involved expert testimony by
plaintiffs, and 79 percent of trials involved expert testimony by
defendants. Seventy-three percent of the trials had experts testifying
for both plaintiffs and defendants. These figures are comparable to
statistics from 1991, when 95 percent of trials involved expert
testimony for the plaintiff, 81% involved expert testimony for the
defendant, and 76 percent had experts

770

testifying on both plaintiff and defendant side. Seventy-seven

percent of the civil trials we surveyed in 1998 were conducted before
juries. . . . The jury trial rate for cases with expert evidence is
somewhat higher than for cases as a whole—in 1998 jury trials
accounted for 64 percent of all civil trials—suggesting that experts
appear with somewhat disproportionate frequency in jury trials.
The average number of experts testifying for plaintiffs was 2.47,
compared to 1.85 for defendants. Tort cases had the highest mean
number of testifying experts—an average of 3.11 experts testified for
plaintiffs, with 2.28 testifying for defendants. Civil rights cases
averaged 1.81 experts for the plaintiff and 1.24 experts for the
defense; case types that fell into the “other” category averaged 2.70
and 2.00 experts, respectively. . . . The mean number of testifying
experts in 1998 was 4.31 per trial. This figure is somewhat lower than
in 1991, when cases averaged 4.80 experts per trial. . . .
In both the judge and attorney surveys, respondents were asked to
describe the types of experts who testified and the issues addressed
by their testimony . . . Medical and mental health specialists were the
most frequently presented category of experts, accounting for more
than 40 percent of the experts presented overall. The medical
profession, representing many types of specialists, collectively
accounted for about one-third of all testifying experts. This showing is
not surprising, given that 45 percent of the survey trials were tort
cases. Specialists from business, law, and financial worlds accounted
for another 25 percent of experts. This category includes the most
frequently heard professional, the economist, representing almost 12
percent of all experts. Engineers and other safety, or process,
specialists registered close behind experts from the business/ law/
financial sector. These professionals accounted for about 22 percent
of all experts. Individuals representing scientific fields such as
chemistry, ballistics, toxicology, and metallurgy accounted for only a
small percentage, less than 8 percent, of testifying experts.

***

2. Scientific Evidence and the Daubert Case

a. Introduction
Trials in the Anglo-American tradition originally gathered together
individuals with knowledge of local affairs to decide notorious
disputes. Jurors were expected to have, and use, specific knowledge
of the case. As times changed, the self-informing aspect of juries was
supplemented with the testimony of other members of the community.
Eventually, litigated matters became more complex, and the gap of
knowledge separating the factfinders from the witnesses increased.
More and more frequently what witnesses said had to be explained to
make it understandable. As such cases became more common, the
traditional model of factfinding was largely followed. The parties were
merely obligated to explain a little bit more, to put the juror in a
position to understand what the witnesses were saying, and thus to
decide the case in an intelligent fashion.
Are there any cases that cannot be accommodated within the
traditional model? Do some cases present issues for decision that
defy the ability of factfinders to understand them? The answer is
surely no. Judges and jurors lack knowledge about various

771
 branches of human inquiry, as we all do, but there is little reason to
believe that, with instruction, they could not adequately master the
relevant fields. Ironically, and again counterintuitively, jurors, because
they sit on juries, are possibly better able to master the relevant
subjects than judges. The issue is not whether every single juror
understands adequately every single issue, but whether the jury,
collectively, adequately understands. With the wealth of talent almost
always contained in even a randomly selected group of six to 12
individuals, it would be a remarkable case that truly defied their
collective cognitive abilities. The need for expert witnesses does not
disprove this point. Experts may very well develop skills that could not
be imparted to a jury. But the knowledge acquired by those skills
surely can. If deciding a case is actually reduced to a choice between
the hunches of experts that cannot be further explained, perhaps it
does not belong in the courts.
The real objection to the argument for educating juries is not that it
is wrong, but that it would be too costly. In some cases, undoubtedly
that is true. At the same time, some case require months of what
amounts to educating the jury on extensive case facts that do not
require expert explanation. Traditional white-collar criminal cases and
complex conspiracy cases may be tried without experts. In these
cases we do not permit juror deference to juridical outsiders such as
experts; we require the parties to connect the case through evidence
to the experience of the jurors.
Why, then, do we flirt with, and perhaps adopt, a more deferential
mode when something comes into court labeled “expert testimony”?
The cognitive questions are highly similar, even if not identical, in
both sets of cases. The social costs of the resources devoted to
litigation are largely identical. Perhaps the difference between
complex conventional cases and cases that call for expert testimony
is that the latter demand expertise that is missing from the former.
People do possess specialized nonconventional knowledge about
mathematics, economics, toxicology, oncology, and so on. Perhaps
no one possesses expertise about complex conventional cases such
as bank fraud or criminal conspiracies. Perhaps so, but this argues
not for our current system of presenting competing versions of
expertise at trial, but instead for a form of judicial notice (see FRE
201, discussed in Chapter Eleven, infra).
If expertise exists and can be identified with the certainty that the
existence of Lake Michigan bordering the city of Chicago can be,
trials should not pause over it. Its lessons should be taken as true,
and the factfinder so constricted. Whether in any particular case there
is expertise in this sense should be easy to determine by judges or
legislatures, and its implications mined for what they are worth. We
would defer to such knowledge just as we defer to the indisputable
knowledge that Lake Michigan borders Chicago. We would not litigate
whether Lake Michigan does; that would simply waste resources. If
expertise does exist, we waste resources each time (at least beyond
the first or unless conditions have changed) that we litigate the issue.
We not only waste time when we litigate the existence of expertise;
we also deliberately engage in nonsensical activity. One of the
reasons to litigate the existence of expertise is to provide opinions to
which jurors can defer. This is the opposite of education, of course.
Jurors are not expected to understand the relevant fields of inquiry;
they are simply to decide which expert to believe. How is this to be
done intelligently without understanding the relevant fields? This
question, which reverberates over the

772

increasing use of expertise at trial, has no satisfactory answer,

precisely because the two points cannot be reconciled. Though it is
true that juries routinely evaluate the credibility of witnesses and the
veracity of their statements, the senses and instincts useful in judging
the testimony of an eyewitness are useless when contrasting the
credentials of two experts or the scientific likelihood of the theories
they propound. It is painfully obvious that jurors (and judges) who do
not know enough about the relevant fields of knowledge to decide
intelligently cannot decide intelligently which expert to believe among
those providing competing versions of that field. Consequently, even
if our view of the cognitive capacity of juries is rejected, the present
system still is nonrational, and the central problem remains.
Obversely, if jurors can decide intelligently about which expert to
believe, they can with a little more education reason intelligently
about the matters in issue, so that deference to the expert is not
necessary.
Deference and education are not analytically distinct entities; they
are opposite points on a spectrum. Jurors will virtually never see true
“raw” data at trial. Deference occurs to some extent whenever a jury
decides whether a witness has testified truthfully.
Still, the extent of deference, or of education, is a variable; one can
have more of one and less of the other. This is particularly obvious
when one considers a case involving not just reporting of sensory
experience (“the light was red”) but the drawing of inferences (“in light
of these studies, I am of the opinion that Bendectin causes birth
defects”). In the typical case, the jury is supposed to be able to
understand the reasoning process that led the witness from
observation to conclusion. Understanding may bring either
acceptance or rejection, of course, and the decision will be made by
the jury's own lights. Often with experts there is no expectation that
the reasoning process can be understood. Acceptance or rejection
cannot occur by the jury's own lights, and thus we see a much larger
dose of deference. How well a witness's analytical process can be
understood is again clearly a variable. Some can be understood
completely, some partially, and some not at all. The legal question is
the significance of this variable.
b. Three Models of Expert Testimony

The Normal, Educational Approach. Expert testimony can be

treated just like any other testimony, which means for it to be relevant
it must be understandable by the factfinder. To make an expert's
testimony understandable will require the jury to be educated about
the relevant matters, and thus the “normal approach” collapses into
adopting an education model. The difficulty is cost, especially the fact
that cost may skew decision toward those with greater resources.
The more impecunious a party, the less able the party will be to
provide the necessary educative function or to respond to an
opponent's case. The latter point is another detrimental aspect of our
system's failure to make parties bear the true cost of their cases,
which includes the opponent's cost of responding. Without cost
shifting, a wealthier party can make the cost of suit too high for the
opponent. Adopting the normal approach to expert testimony would
exacerbate this problem by tending to make cases involving expertise
more protracted. Offsetting this factor in part is that higher costs are a
laudable disincentive to sue or an equally laudable incentive to agree
to resolution in other, less costly forums.

773

The Deference Model. Factfinders can be required to defer to

established expertise, as occurs whenever experts are required to
testify in hypothetical question format. The advantages are obvious.
Those with the ability to decide rationally make the decision, costs
are reduced, and consistency in decision is advanced. If the
decisions about expertise are correct, accuracy in decision should be
advanced as well. The disadvantage is the resultant extension of
official orthodoxy, which removes decision from the jury and trial
judge to some higher level court or legislature. Also, if the decision
about expertise is incorrect, consistency of decision will remain, but
the decisions will be consistently wrong.
The Adversary Model. Parties can choose either to educate the
jury with the assistance of expert testimony or to convince the jury to
defer to an expert's opinion. This leaves the whole matter up to the
parties, save only for the admissibility decision of judges. That
admissibility decision, in turn, would have to be made in anticipation
of either education or a request for deference. Again, the advantages
are obvious. The parties know their dispute and their resources better
than anyone else, and are in the best position to make choices that
optimize their interests. The difficulties are that the cost of education
will tend to make deference more attractive and that deference
cannot occur rationally with any great frequency. The reduction in the
likelihood of rationality is at odds with the essence of the common law
mode of trial, that is, the pursuit of factual accuracy through rational
deliberation. Indeed, there is a high irony here: In a case in which the
parties employ a deference mode, the mere admission by the trial
judge of competing expert views without requiring full explanation of
those views, including instruction on the underlying field of inquiry,
ensures that a decision will be nonrational if not irrational. Only if a
juror could see clearly that one side was right and the other wrong
would nonrationality be avoided; but if that were so, the judge would
admit only the one version and exclude the other. If reasonable
people could rationally disagree about which expert is right, they in
addition would be able to understand the underlying dispute, and thus
deference would not be needed. Note also what a dramatic
qualification of the normal rules of relevancy deference entails.
Normally, a party must explain the relevance of evidence by
adequately connecting the evidence to the factfinder's understanding.
With experts in a deferential model, one party can shift that cost of
explanation to the opponent by producing an unexplained opinion.
As this brief presentation demonstrates, the use of expert testimony
poses fundamental challenges to the common law system of
adjudication. Experts are often expert because of years of specialized
training, and thus there often will be formidable barriers to educating
the fact finder about the relevant issues at trial. Hence, pressure
arises to defer to the expertise of experts as a means of keeping trials
to a manageable length, but the pressure to defer constitutes a
challenge to the core concept of trials, and puts into issue our basic
commitment to decisions based on rational deliberation on the
evidence. This explains in part the remarkable controversy over
expert testimony even as expert testimony is becoming ever more
prevalent at trial, for lurking here is the fundamental question of the
nature of litigation: To what extent is rational deliberation the hallmark
of adjudication?

774

The Daubert case presented these issues to the Court, but its
opinion did not address them. The opinion offered no recognition that
what was at stake was not just a technical rule of evidence but a
conception of trial, and thus the implications of its decision for rational
deliberation were not addressed. The Court focused on two other
matters that formed the basis of the lower court's ruling in favor of the
defendants: First, that the general acceptance standard of Frye
governed the admissibility of expert testimony in federal court, and
second that the standard could not be met with evidence of
reanalyses of data that had not previously been published and
subjected to peer review. The deep conceptual issue of the defining
characteristics of litigation was overlooked in the Court's
unenlightening, but thankfully not positively harmful, discussion of the
general acceptance standard.
The Court's failure to deal with the core issues presented to it in
Daubert is all the more unfortunate because still operating are the
pressures that over time have resulted in modification of the litigation
process to permit large amounts of deference to experts. First is the
added cost of educating fact finders so that they may follow the
reasoning of the expert in the same way the factfinders can follow the
reasoning of a lay witness (thus essentially converting an expert into
a lay witness). There is in addition the lottery effect. If reasons for
opinions need not be given in detail, one has an increased chance of
a lottery-effect jury verdict if the trial judge qualifies a witness as an
expert. One effect of Daubert has been to transmute the mechanical
invocation of the Frye test by the trials courts into a more ostensibly
subtle but in fact largely identical process of qualification of expert
witnesses. What else can they do? The Supreme Court did not take
its opportunity to tell trial judges to admit purported expertise only if
the basis of the expertise were understandable, as it could and
should have done. Trial judges will thus continue to look for a
justification to defer to expertise, and they will continue to find it in the
general acceptance of that expertise in generally accepted bodies of
knowledge.
Telling the lower courts not to invoke mechanically “general
acceptance” may prove marginally helpful, but none of the important
questions in the case were addressed. In particular, the conflict
between the demands of education and deference was ignored.
Indeed, if anything the dichotomy between deference and education
was reinforced by the Court's opinion. The list of criteria provided by
the Court is only relevant to a system willing to defer; by providing the
list, the Court, although surely unintentionally, gave sustenance to
deference. This is also why the Court's limitation of its discussion to
“scientific” evidence is not problematic. The other kinds of information
listed in Rule 702 are unlikely to require deference; information of
those types can be explained. A car mechanic can qualify as an
expert under the rule, but few would claim that such expertise would
defy the cognitive capacity of factfinders. As you saw in Kumho,
however, the Court has proved even more willing to perpetuate the
tendency to allow deference than some critics initially thought.
The most regrettable aspect of Daubert is that the Court seemed
quite unaware of the implications of admitting data without a basis for
believing that the data can be understood. By doing so, it seems to
be putting its stamp of approval on undeliberative and nonrational
legal decisionmaking, which are the antitheses of the law's
aspirations. Jurors or judges who cannot understand the reasoning of
a witness can only

775

accept or reject the witness's conclusions, but neither acceptance

nor rejection will occur rationally. The choice will not be made
because a factfinder understands the reasoning and sees either its
cogency or its flaws; it will be made for some other reason. And the
set of “some other reasons” is, from the point of view of the law's
aspirations, filled with unsavory characters.
Yet another interesting aspect of the expert evidence area that may
remain undisturbed by Daubert is the special treatment that expert
testimony gets with regard to the distinction between sufficiency and
admissibility. Often trial courts seem to make a sufficiency
determination in the guise of an admissibility determination. The
explanation, we think, is that trial judges are admitting evidence that
they know they and jurors cannot be expected to understand. Such
evidence should not be admitted unless the trial judge is willing to let
a verdict rest on it, and so the admissibility decision becomes a
sufficiency decision. This all confirms the entrenchment of a
deference mode of decision at the trial court level.
Perhaps there is no feasible alternative. Perhaps the cost of truly
educating the factfinders would be too high in some cases, or
perhaps our skepticism about the point does not dispose of concerns
about the cognitive capacity of factfinders. If either is true, the answer
again is obvious: Unless we are also wrong that the core aspiration of
litigation is decision through rational deliberation, the common law
form of decisionmaking should not be employed for those cases.

3. Court Appointed Experts

One possible response to some of the problems discussed in the
previous section is an increased use of court-appointed experts. The
FRE provides for this.
a. FRE 706
RULE 706. COURT APPOINTED EXPERT WITNESSES

(a) Appointment Process. On a party's motion or on its own, the court may order the
parties to show cause why expert witnesses should not be appointed and may ask the
parties to submit nominations. The court may appoint any expert witness that the parties
agree on and any of its own choosing. But the court may only appoint someone who
consents to act.
(b) Expert's Role. The court must inform the expert of the expert's duties. The Court
may do so in writing and have a copy filed with the clerk or may do so orally at a
conference in which the parties have an opportunity to participate. The expert:
(1) must advise the parties of any findings the expert makes;
(2) may be deposed by any party;
(3) may be called to testify by the court or any party; and
(4) may be cross-examined by any party, including the party that called the expert.

776
(c) Compensation. The expert is entitled to reasonable compensation, as set by the
court. The compensation is payable as follows:
(1) in a criminal case or in a civil case involving just compensation under the Fifth
Amendment, from any funds that are provided by law; and
(2) in any other civil case, by the parties in the proportion and at the time that the
court directs—and the compensation is then charged like other costs.
(d) Disclosing the Appointment to the Jury. The court may authorize disclosure to the
jury that the court appointed the expert.
 (e) Parties' Choice of Their Own Experts. This rule does not limit a party in calling its
own experts.

b. Is FRE 706 Underutilized?

FRE 706 permits courts to appoint their own experts. The
advantage in doing so is the securing of disinterested, objective
testimony concerning the issues in the case. This can provide a
factfinder with important information when the adversarial system fails
to bring the two sides of an issue to light. See, e.g., Grove v. Principle
Mutual Life Insurance Co., 200 F.R.D. 434 (S.D. Iowa 2001)
(appointing two experts to assist the court where both parties in a
class action suit supported a settlement agreement but what was
missing was someone to play the “devil's advocate”). As one circuit
court observed, a neutral expert in a Fair Debt Collection Case could
have been a “possible alternative to the often unedifying spectacle of
a battle of party-appointed experts,” and suggested that, at least in
such cases, “[d]istrict judges may want to consider exercising the
clearly authorized but rarely exercised option of appointing their own
expert.” DeKoven v. Plaza Associates, the Seventh Circuit pointed
out that 599 F.3d 578 (7th Cir. 2010).
There are certain disadvantages to employing FRE 706. First, is
cost. In criminal and civil “just compensation” cases (i.e., cases
involving condemnation or other takings of property), the funding to
pay the expert must come from a statutory source, perhaps the
court's own budget. In other civil cases, the expert fees are charged
to the parties, who are likely to resist the appointment. Second, is the
disconnect between the procedure and the adversarial norm. A court-
appointed expert is likely to have a significant impact on factfinding,
but is not party directed. Many judges and may simply be
uncomfortable with interjecting “neutral” evidence presentation into
the process, and lawyers are likely to resent what they will perceive
as interference with the presentation of their cases.
A third problem is that many disciplines have internal disputes so
that any expert selected by the court might not be fully “objective.”
Instead he or she might have an axe to grind within the discipline,
and would be testifying from the perspective of one whose view of the
field is not universally shared. A good example of this is psychiatry.
Freudian psychiatrists are called as expert witnesses, yet very little
within the field has been empirically verified. As a consequence,
psychiatry as a field is moving away from Freudian concepts, yet
Freudian concepts still have their adherents. The choice of an
“expert” in psychiatry must thus resolve the contested issue of the
validity of these

777

concepts. In contrast, adversarial presentation of experts could

counteract what might otherwise be a tendency toward the creation of
an official orthodoxy in litigated cases.
Whether animated by these concerns or others, courts have
essentially refused to take advantage of the power given them by this
rule, leaving it a functional dead letter, and leaving it to the parties to
fight out among themselves basic disciplinary disputes when
necessary for the adjudication of a case.
An illustration of how Rule 706 can work in practice arose from the
nationwide litigation of silicone breast implant tort claims. U.S. District
Judge Robert E. Jones, while he was overseeing all federal breast
implant litigation in Oregon, noted that “litigation over the ability of
silicone gel breast implants to cause disease in women has been
chaotic in its results” and thus appointed a panel of independent
experts to review all of the scientific evidence supporting the plaintiffs'
claim that breast implants have caused serious diseases in women.
See Hall v. Baxter Healthcare Corp., 947 F. Supp. 1387 (1996). In this
decision, however, Judge Jones made the interesting decision to
appoint the panel under FRE 104 (Preliminary Questions) rather than
under FRE 706. He appointed a panel of “technical advisors,”
representing the fields of epidemiology, rheumatology, immunology,
toxicology, and polymer chemistry, but refrained from designating
them as court appointed experts “[t]o keep the advisors independent
of any ongoing proceedings.” Faced with the daunting task of
evaluating extensive scientific evidence in silicone breast implant
cases, other courts followed suit. U.S. District Judges Jack Weinstein
and Harold Baer, Jr., who managed all breast implants cases in the
U.S. District Courts for the Eastern and Southern Districts of New
York respectively, came up with a similar plan but named a team of
three special masters to help determine the types of expertise that
would be needed in a Rule 706 panel. See Mark Hansen, Panel to
Examine Implant Evidence: Unusual Move by Two New York Federal
Judges Could be Copied Elsewhere, A.B.A. J., June 1996, at 34.
The most far-reaching order was issued by Judge Samuel Pointer
of the U.S. District Court for the Northern District of Alabama, who
was at the time coordinating about 21,000 cases on a pretrial basis.
In a two-step plan, Judge Pointer appointed a “Selection Panel”
whose duty it would be to recommend to the court the names of
“neutral, impartial persons,” qualified to sit on the “Science Panel”
and “review, critique, and evaluate exiting scientific literature,
research, and publications—addressing such matters as the
meaning, utility, significance, and limitations of such studies—on
topics as, from time to time, may be identified by the Court as
relevant in breast-implant litigation, particularly on issues of 'general
causation.' ” Order No. 31 (May 31, 1996). As Judge Pointer
envisioned it, the appointments would be made on a national basis
“for potential use in all federal courts and as permitted in state
courts.” Though both the attorneys for the plaintiffs and for the
defendants expressed some trepidation about the process, Rule 706
preserves a party's right to call its own expert witnesses and to cross-
examine the court appointed experts. The four member panel of
scientists eventually appointed by Judge Pointer, issued a report in
December of 1998, after two years of investigation, concluding that
the evidence had not yet shown that silicone breast implants caused
disease, though the connection might still be established in the future.
By all accounts, the report was very damaging to plaintiffs, who

778

now found themselves in a disadvantaged position for settlement

and with diminished prospects for success at trial. In the years since
the report was issued, judges from many jurisdictions have cited the
panel's findings as support for exclusion of expert testimony intended
to prove a causal link between implants and disease. See, e.g.,
Pozefsky v. Baxter Healthcare Corp., 2001 U.S. Dist. LEXIS 11813
(N.D.N.Y. Aug. 16, 2001); Havard v. Baxter International Inc., 2000
U.S. Dist. LEXIS 21316 (N.D. Ohio, July 21, 2000); Toledo v. Medical
Engineering Corp., 50 Pa. D. & C.4th 129 (C.P. Ct. Phila. Cnty., Dec.
29, 2000). Though the courts succeeded in adopting a more efficient
system of hearing expert testimony, do you think that one court
should be able to exercise so great an influence over the success of
cases in so many jurisdictions?

4. Summary Witnesses
Summary witnesses represent a blurring of the line between who
qualifies as an “expert witness” and who remains a “lay witness.” In
some trials, usually those involving large amounts of evidence or
extraordinarily complicated evidence, a lay witness will be permitted
to testify as to what the aggregate of the evidence shows—in other
words, to summarize the evidence. Because the witness is simply
serving as a human “tape recorder,” the witness need not be qualified
as an expert to provide this summary. However, if the witness draws
conclusions from this evidentiary summation for the purposes of
assisting the jury, it is probable that the witness should be certified as
an expert. See, e.g., United States v. Pree, 408 F.3d 855, 869 (7th
Cir. 2005) (admission of summary witness testimony regarding the
tax consequences of a series of complicated stock sales in a fraud
case). For more on summary witnesses, see D. Michael Risinger,
Preliminary Thoughts on a Functional Taxonomy of Expertise for the
Post-Kumho World, 31 Seton Hall L. Rev. 508 (2000).

5. Problems in Forensic Science: Overview

Different kinds of scientific evidence and expert testimony have, for
one reason or another, caused difficulties for the courts. Interestingly,
it was only recently that DNA evidence was regularly questioned by
defendants and courts. Now, while it seems that the acceptance of
most DNA evidence is firmly rooted in the judicial system, more
traditional methods of forensic science are causing controversy
because they lack the theoretical scientific basis of DNA.
The concerns about the dearth of detailed analysis outside of DNA
led Congress to authorize a study of forensic sciences. In 2009,
under the supervision of the National Academy of Sciences (NAS),
members of the forensic community, including crime laboratories,
legal experts, and medical examiners, published a report on the
serious problems present in the traditional forensic science fields as
well as recommendations on how best to solve them. Selected
excerpts from the report follow.7

779

THE NATIONAL ACADEMIES, STRENGTHENING

FORENSIC SCIENCE IN THE UNITED STATES: A PATH
FORWARD

(2009)
CHALLENGES FACING THE FORENSIC SCIENCE COMMUNITY
For decades, the forensic science disciplines have produced valuable evidence that
has contributed to the successful prosecution and conviction of criminals as well as to
the exoneration of innocent people. Over the last two decades, advances in some
forensic science disciplines, especially the use of DNA technology, have demonstrated
that some areas of forensic science have great additional potential to help law
enforcement identify criminals. Many crimes that may have gone unsolved are now
being solved because forensic science is helping to identify the perpetrators.
Those advances, however, also have revealed that, in some cases, substantive
information and testimony based on faulty forensic science analyses may have
contributed to wrongful convictions of innocent people. This fact has demonstrated the
potential danger of giving undue weight to evidence and testimony derived from
imperfect testing and analysis. Moreover, imprecise or exaggerated expert testimony
has sometimes contributed to the admission of erroneous or misleading evidence.
Further advances in the forensic science disciplines will serve three important
purposes. First, further improvements will assist law enforcement officials in the course
of their investigations to identify perpetrators with higher reliability. Second, further
improvements in forensic science practices should reduce the occurrence of wrongful
convictions, which reduces the risk that true offenders continue to commit crimes while
innocent persons inappropriately serve time. Third, any improvements in the forensic
science disciplines will undoubtedly enhance the Nation's ability to address the needs of
homeland security.
 ...

PROBLEMS RELATING TO THE INTERPRETATION OF

FORENSIC EVIDENCE
Often in criminal prosecutions and civil litigation, forensic evidence is offered to
support conclusions about “individualization” (sometimes referred to as “matching” a
specimen to a particular individual or other source) or about classification of the source
of the specimen into one of several categories. With the exception of nuclear DNA
analysis, however, no forensic method has been rigorously shown to have the capacity
to consistently, and with a high degree of certainty, demonstrate a connection between
evidence and a specific individual or source. In terms of scientific basis, the analytically
based disciplines generally hold a notable edge over disciplines based on expert
interpretation. But there are important variations among the disciplines relying on expert
interpretation. For example, there are more established protocols and available research
for fingerprint analysis than for the analysis of bite marks. There also are significant
variations within each discipline. For example, not all fingerprint evidence is equally
good, because the true value of the evidence is determined by the quality of the latent
fingerprint image. These disparities between and within the forensic science disciplines
highlight a major problem in the forensic science community: The simple

780
reality is that the interpretation of forensic evidence is not always based on scientific
studies to determine its validity. This is a serious problem. Although research has been
done in some disciplines, there is a notable dearth of peer-reviewed, published studies
establishing the scientific bases and validity of many forensic methods.
...

THE ADMISSION OF FORENSIC SCIENCE EVIDENCE IN

LITIGATION
Forensic science experts and evidence are used routinely in the service of the criminal
justice system. DNA testing may be used to determine whether sperm found on a rape
victim came from an accused party; a latent fingerprint found on a gun may be used to
determine whether a defendant handled the weapon; drug analysis may be used to
determine whether pills found in a person's possession were illicit; and an autopsy may
be used to determine the cause and manner of death of a murder victim. In order for
qualified forensic science experts to testify competently about forensic evidence, they
must first find the evidence in a usable state and properly preserve it. A latent fingerprint
that is badly smudged when found cannot be usefully saved, analyzed, or explained. An
inadequate drug sample may be insufficient to allow for proper analysis. And, DNA tests
performed on a contaminated or otherwise compromised sample cannot be used reliably
to identify or eliminate an individual as the perpetrator of a crime. These are important
matters involving the proper processing of forensic evidence. The law's greatest
dilemma in its heavy reliance on forensic evidence, however, concerns the question of
whether—and to what extent—there is science in any given forensic science discipline.
 Two very important questions should underlie the law's admission of and reliance upon
forensic evidence in criminal trials: (1) the extent to which a particular forensic discipline
is founded on a reliable scientific methodology that gives it the capacity to accurately
analyze evidence and report findings and (2) the extent to which practitioners in a
particular forensic discipline rely on human interpretation that could be tainted by error,
the threat of bias, or the absence of sound operational procedures and robust
performance standards. These questions are significant. Thus, it matters a great deal
whether an expert is qualified to testify about forensic evidence and whether the
evidence is sufficiently reliable to merit a factfinder's reliance on the truth that it purports
to support. Unfortunately, these important questions do not always produce satisfactory
answers in judicial decisions pertaining to the admissibility of forensic science evidence
proffered in criminal trials.
In 1993, in Daubert v. Merrell Dow Pharmaceuticals, Inc.,8 the Supreme Court ruled
that, under Rule 702 of the Federal Rules of Evidence (which covers both civil trials and
criminal prosecutions in the federal courts), a “trial judge must ensure that any and all
scientific testimony or evidence admitted is not only relevant, but reliable.”9 The Court
indicated that the subject of an expert's testimony should be scientific knowledge, so
that “evidentiary reliability will be based upon scientific validity.”10 The Court also
emphasized that, in considering the admissibility of evidence, a trial judge should focus
“solely” on the expert's “principles and methodology,” and “not on

781

the conclusions that they generate.”11 In sum, Daubert's requirement that an expert's
testimony pertain to “scientific knowledge” established a standard of “evidentiary
reliability.”12
In explaining this evidentiary standard, the Daubert Court pointed to several factors
that might be considered by a trial judge: (1) whether a theory or technique can be (and
has been) tested; (2) whether the theory or technique has been subjected to peer review
and publication; (3) the known or potential rate of error of a particular scientific
technique; (4) the existence and maintenance of standards controlling the technique's
operation; and (5) a scientific technique's degree of acceptance within a relevant
scientific community.13 In the end, however, the Court emphasized that the inquiry
under Rule 702 is “a flexible one.”14 The Court expressed confidence in the adversarial
system, noting that “[v]igorous cross-examination, presentation of contrary evidence,
and careful instruction on the burden of proof are the traditional and appropriate means
of attacking shaky but admissible evidence.”15 The Supreme Court has made it clear
that trial judges have great discretion in deciding on the admissibility of evidence under
Rule 702, and that appeals from Daubert rulings are subject to a very narrow abuse-of-
discretion standard of review.16 Most importantly, in Kumho Tire Co., Ltd. v. Carmichael,
the Court stated that “whether Daubert's specific factors are, or are not, reasonable
measures of reliability in a particular case is a matter that the law grants the trial judge
broad latitude to determine.”17
 Daubert and its progeny have engendered confusion and controversy. In particular,
judicial dispositions of Daubert-type questions in criminal cases have been criticized by
some lawyers and scholars who thought that the Supreme Court's decision would be
applied more rigorously.18 If one focuses solely on reported federal appellate decisions,
the picture is not appealing to those who have preferred a more rigorous application of
Daubert. Federal appellate courts have not with any consistency or clarity imposed
standards ensuring the application of scientifically valid reasoning and reliable
methodology in criminal cases involving Daubert questions. This is not really surprising,
however. The Supreme Court itself described the Daubert standard as “flexible.” This
means that, beyond questions of relevance, Daubert offers appellate courts no clear
substantive standard by which to review decisions by trial courts. As a result, trial judges
exercise great discretion in deciding whether to admit or exclude expert testimony, and
their judgments are subject only to a highly deferential “abuse of discretion” standard of
review. Although it is difficult to get a clear picture of how trial courts handle

782
Daubert challenges, because many evidentiary rulings are issued without a published
opinion and without an appeal, the vast majority of the reported opinions in criminal
cases indicate that trial judges rarely exclude or restrict expert testimony offered by
prosecutors; most reported opinions also indicate that appellate courts routinely deny
appeals contesting trial court decisions admitting forensic evidence against criminal
defendants.19 But the reported opinions do not offer in any way a complete sample of
federal trial court dispositions of Daubert-type questions in criminal cases.
The situation appears to be very different in civil cases. Plaintiffs and defendants,
equally, are more likely to have access to expert witnesses in civil cases, while
prosecutors usually have an advantage over most defendants in offering expert
testimony in criminal cases. And, ironically, the appellate courts appear to be more
willing to second-guess trial court judgments on the admissibility of purported scientific
evidence in civil cases than in criminal cases.20
Prophetically, the Daubert decision observed that “there are important differences
between the quest for truth in the courtroom and the quest for truth in the laboratory.
Scientific conclusions are subject to perpetual revision. Law, on the other hand, must
resolve disputes finally and quickly.”21 But because accused parties in criminal cases
are convicted on the basis of testimony from forensic science experts, much depends
upon whether the evidence offered is reliable. Furthermore, in addition to protecting
innocent persons from being convicted of crimes that they did not commit, we are also
seeking to protect society from persons who have committed criminal acts. Law
enforcement officials and the members of society they serve need to be assured that
forensic techniques are reliable. Therefore, we must limit the risk of having the reliability
of certain forensic science methodologies judicially certified before the techniques have
been properly studied and their accuracy verified by the forensic science community.
“[T]here is no evident reason why ['rigorous, systematic'] research would be
infeasible.”22 However, some courts appear to be loath to insist on such research as a
condition of admitting forensic science evidence in criminal cases, perhaps because to
 do so would likely “demand more by way of validation than the disciplines can presently
offer.”23
The adversarial process relating to the admission and exclusion of scientific evidence
is not suited to the task of finding “scientific truth.” The judicial system is encumbered by,
among other things, judges and lawyers who generally lack the scientific expertise
necessary to comprehend and evaluate forensic evidence in an informed manner, trial

783
judges (sitting alone) who must decide evidentiary issues without the benefit of judicial
colleagues and often with little time for extensive research and reflection, and the highly
deferential nature of the appellate review afforded trial courts' Daubert rulings. Given
these realities, there is a tremendous need for the forensic science community to
improve. Judicial review, by itself, will not cure the infirmities of the forensic science
community.24 The development of scientific research, training, technology, and
databases associated with DNA analysis have resulted from substantial and steady
federal support for both academic research and programs employing techniques for
DNA analysis. Similar support must be given to all credible forensic science disciplines if
they are to achieve the degrees of reliability needed to serve the goals of justice. With
more and better educational programs, accredited laboratories, certified forensic
practitioners, sound operational principles and procedures, and serious research to
establish the limits and measures of performance in each discipline, forensic science
experts will be better able to analyze evidence and coherently report their findings in the
courts. The current situation, however, is seriously wanting, both because of the
limitations of the judicial system and because of the many problems faced by the
forensic science community.
The NAS report is thoroughly discussed in Symposium: Forensic
Science for the 21st Century, 50 Jurimetrics J. 1-146 (2009). For
additional research on issues arising out of this report, see, e.g.,
Jessica D. Gabel, Realizing Reliability in Forensic Science from the
Ground Up, 104 J. Crim. L. & Criminology 283 (2014); Paul C.
Giannelli, Daubert and Forensic Science: The Pitfalls of Law
Enforcement Control of Scientific Research, 2011 U. Ill. L. Rev. 53.

***

6. Problems in Forensic Science: Some Specific Controversies

In part because Daubert has given trial judges such broad discretion
in their role as “gatekeepers,” inconsistent rulings on admissibility are
not uncommon when a new type of “scientific” evidence first begins
appearing in court. There is often significant disagreement even
between experts within a field, thus making it almost impossible for a
factfinder using the deference model to reach a rational conclusion.
We have already mentioned the ongoing debates surrounding
polygraph testing, see note 5, page 721. The following discussion
highlights a few more of these topics.
a. Recent Debates in DNA Testing
Courts and commentators are currently debating the extent to which
trawling DNA databases to find a match to a sample taken at a crime
scene could result in a

784

false match. The likelihood of a false match is highly contested, and

defendants prosecuted based on these matches have argued that the
lack of an agreement in the scientific community should prevent
courts from admitting the evidence. Nonetheless, courts faced with
the question have allowed the DNA evidence to be admitted, and as
governments and various organizations establish DNA databases,
law enforcement officials are increasingly able to solve both old and
new cases after finding a DNA match in a database. For more
information on the current debate and an argument courts should
continue to allow the DNA evidence, see David H. Kaye, Rounding
Up the Usual Suspects: A Legal and Logical Analysis of DNA
Trawling Cases, 87 N.C. L. Rev. 425 (2009).
b. Psychological and Behavioral Sciences
Following some widely publicized convictions based on syndrome
evidence and repressed memory, courts recognize that such
“scientific evidence,” if misused, can be a dangerous tool.
“Syndromes” are collections of symptoms that occur together and
characterize a particular abnormality. Experts frequently are offered at
trial for information and opinions about syndromes of various kinds. In
medical science, the term tends to be used to refer to a set of
symptoms whose underling etiology was not fully understood at the
time the syndrome was identified, as is the case, for example, with
Down Syndrome. The knowledge of experts in the relevant medical
areas frequently is based on carefully controlled studies (Down's
Syndrome is again a good example), and can be valuable in litigation.
In a medical malpractice suit alleging a mistake involving
amniocentesis leading to the birth of a seriously disabled child,
medical testimony concerning Down's Syndrome and its detectability
through amniocentesis will be crucial.
Over the last few decades, syndrome evidence of a different kind
has emerged. Battered woman syndrome, posttraumatic stress
disorder, post-Vietnam syndrome, rape trauma syndrome, and child
sexual abuse accommodation syndrome, are just a few. As the
diagnosis of these syndromes began producing therapeutic
successes and thus respectability, experts were permitted to testify
that a person has suffered some legally cognizable harm, such as
child or sex abuse, based on various symptoms that the alleged
victim possesses.25 These claims were often coupled with testimony
that the victim repressed memory of the traumatic event for a
considerable period of time, in many instances stretching into
decades.
When a therapist diagnoses a patient with a psychological
syndrome, the therapist is making a decision to use certain methods
of treatment that have been beneficial to patients with like symptoms.
The diagnostic process may not reveal any of the causes of the
patient's symptoms and a therapist's speculative opinions about such
causes may be highly prejudicial. Though syndrome evidence is
usually inadequate for proof of causation, it can be effectively and
appropriately used as rebuttal evidence. An example is in rape
prosecutions where the victim has delayed reporting the crime. The
defense may present this fact as an indication of a false charge. It
may be helpful

785

to the factfinder in such a case to be educated about the frequency

of delayed reports among rape victims. See, e.g., United States v.
Simmons, 470 F.3d 1115 (5th Cir. 2006) (finding no error in admitting
such evidence even though not all Daubert factors were satisfied);
People v. Hampton, 746 P.2d 947 (Colo. 1987) (admitting such
evidence). For a more detailed examination of the controversy
surrounding this and other types of psychological and behavioral
evidence, see Henry F. Fradella et al., The Impact of Daubert on the
Admissibility of Behavioral Science Testimony, 30 Pepp. L. Rev. 403
(2003) (studying Daubert's application to psychological expert
testimony); Christopher Slobogin, Doubts About Daubert: Psychiatric
Anecdata as a Case Study, 57 Wash. & Lee L. Rev. 919 (2000)
(arguing that opinion testimony from psychologists and psychiatrists
concerning past mental state and proffered by criminal defendants,
should be admissible under Daubert-Kumho though it may be
considered “unreliable”); Rosemary L. Flint, Child Sexual Abuse
Accommodation Syndrome: Admissibility Requirements, 23 Am. J.
Crim. L. 171 (1995).
c. Toxic Tort Causation
A toxic tort . . . is a cause of action that arises when a plaintiff has developed a
disease following long-term exposure to a physical agent—either a chemical or a form of
energy such as electromagnetic fields (EMFs). Typically, the defendant's economic
activity resulted in the plaintiff's exposure to the agent. Courts essentially must
determine whether the plaintiff's exposure and subsequent disease are causally related,
as that relationship is defined by the applicable law, or whether the exposure and
disease are associated merely by chance. For example, did the asbestos inhaled by the
plaintiff cause his lung cancer? Did the radar gun used by the traffic control officer cause
his testicular cancer? Did the Bendectin taken by the plaintiff cause the birth defects that
occurred thereafter? Traumatic injury occurs instantaneously, but disease develops over
a period of time. The cause of disease, therefore, cannot be the direct object of the
senses and can only be inferred. [Andrew A. Marino and Lawrence E. Marino, The
Scientific Basis of Causality in Toxic Tort Cases, 21 Dayton L. Rev. 1, 2 (1995).]

You will recall that Daubert addressed the admissibility of expert

testimony in a case in which a family alleged that their children's birth
defects had been caused by the mothers' ingestion of Bendectin
during pregnancy. The defendant, Merrell Dow Pharmaceuticals, Inc.,
argued that the plaintiffs could not prove that the prescription
antinausea drug had caused the defects.26 It is not surprising that
such a seminal case should grow out of a dispute about toxic tort
causation. As a central element of all toxic tort claims and one about
which most fact finders know little, proving causation can be
extremely difficult and often requires the plaintiff to call numerous
expert witnesses.
The expert in a toxic tort case must rationalize an assertion that the plaintiff's disease
and the dosage of the toxin received were causally related and not merely a chance
association. For example, in the case of a traffic control officer who used a radar gun
and developed cancer, the plaintiff's exposure to electromagnetic fields and his disease

786
occurred in the context of many factors, among others: the plaintiff ate peanuts; smoked
cigarettes; wore blue socks; drove a motorcycle; lifted weights; collected coins; lived
near a superhighway; and had arthritic knees. The question arises, therefore, why the
expert singled out electromagnetic fields as the causative agent, as opposed to myriad
other co-existing circumstances. [Andrew A. Marino & Lawrence E. Marino, The
Scientific Basis of Causality in Toxic Tort Cases, 21 Dayton L. Rev. 1, 21 (Fall, 1995).]

Since it is unlikely that the mechanism by which an agent causes a

disease will be known in a toxic tort case, to be able to opine that the
agent “caused” the disease, the expert will have to express why this
explanation is more likely than other possible explanations. It may be
that this logical gap, inherent in evidence of a toxic tort, creates a
certain uneasiness among trial courts and leads them to decide
cases one at a time, making it difficult for observers to predict the
outcomes.
In Wright v. Willamette Industries, Inc., 91 F.3d 1105 (8th Cir. 1996),
the appellate court asked whether sufficient evidence had been
offered at trial to support the plaintiffs' claim that the formaldehyde
emitted by the defendant's fiberboard manufacturing plant had
caused the plaintiffs' headaches, sore throats, watery eyes, running
noses, dizziness, and shortness of breath. The jury found for the
plaintiffs and awarded compensatory damages of $226,250.00. The
court reversed, explaining that, although the plaintiffs had proved
their exposure to the defendant's emissions, they had failed to prove
that their level of exposure was hazardous and that the defendant's
emissions probably caused their particular ailments. The court
characterized the expert testimony that had been offered in the
following way:
Their experts' information on this subject was simply insufficient. Dr. Fred Fowler, an
industrial hygienist, and Dr. Jimmie Valentine, a pharmacologist, did offer testimony
 about the levels of gaseous formaldehyde that might be expected to cause symptoms
like the ones that plaintiffs claim to have experienced. But the Wrights do not claim to
have been injured from breathing gaseous formaldehyde, and they make no reference
to any studies that reveal the levels of exposure to wood fibers impregnated with
formaldehyde that are likely to produce adverse consequences. It is true that Dr. Frank
Peretti, after a great deal of prodding, testified that the Wrights' complaints were more
probably than not related to exposure to formaldehyde, but that opinion was not based
on any knowledge about what amounts of wood fibers impregnated with formaldehyde
involve an appreciable risk of harm to human beings who breathe them. The trial court
should therefore have excluded Dr. Peretti's testimony, as Willamette requested it to do,
because it was not based on scientific knowledge. See Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 589-91 (1993); Fed. R. Evid. 702; Federal Judicial
Center, Reference Manual on Scientific Evidence 47-48 (1994). Dr. Peretti's testimony
regarding the probable cause of the Wrights' claimed injuries was simply speculation.
[Wright v. Willamette Industries, Inc., 91 F.3d 1105, 1107-1108 (8th Cir. 1996).]
Thus, the court accepted scientific testimony that “gaseous
formaldehyde” could cause the types of ailments suffered by the
plaintiffs but it distrusted the experts' opinion that formaldehyde
carried by particulate matter could have the same effect. For a
critique of Wright, see Erica Beecher-Monas, The Heuristics of
Intellectual Due Process: A Primer for Triers of Science, 75 N.Y.U. L.
Rev. 1563 (2000).
In Zuchowicz v. United States, 140 F.3d 381 (2d Cir. 1998), the
United States appealed an unfavorable decision in which the district
court held that the plaintiff's

787

wife's fatal lung condition was the result of the government's

negligence in prescribing an overdose of the drug Danocrine. There
was no question that the government had erred in its prescription or
that the plaintiff's wife died from primary pulmonary hypertension
(PPH). The only question before the trial court had been whether the
one had caused the other. The trial court found that Danocrine had
been extensively studied and prescribed for many years and that
even though the Food and Drug Administration had approved it for
use in dosages not exceeding 800 mg/day, the plaintiff's wife was
accidentally instructed to take 1,600 mg/day. At the time of the trial,
there had been no formal studies of effects of such high doses of
Danocrine and it was thought that very few women had ever taken so
much. Despite the plaintiff's inability to close this gap, his experts
were permitted to testify that, although all of the other possible
causes of the plaintiff's wife's PPH could not be excluded, the experts
were “confident to a reasonable medical certainty that the Danocrine
caused Mrs. Zuchowicz's PPH.” There are many more examples of
courts being more or less demanding of a plaintiff's experts in toxic
tort litigation. With the great discretion accorded to trial judges within
this area, it will take some time for courts to begin reaching more
consistent conclusions. But cf. Plourde v. Gladstone, 190 F. Supp. 2d
708, 721 (D. Vt. 2002) (discussing some factors considered in
admissibility of expert testimony in toxic tort cases); see also Williams
v. Utica College, 453 F.3d 112 (2d Cir. 2006) (distinguishes
Zuchowicz based on factors, found in Zuchowicz but absent in the
present case, that make the causal inference reliable).
d. Traditional Law Enforcement Investigative Tools
Recently, several types of evidence that have been used for years
in U.S. courtrooms have been questioned anew. The renewed
scrutiny of handwriting identification, fingerprint identification, and
comprehensive bullet lead analysis (CBLA) may be attributed to a
belated recognition that “new” scientific techniques are not the only
ones that should be subject to a Daubert analysis. As a result, the
use of each of these techniques, though not novel, is less settled now
than ten or even five years ago.
Handwriting Identification. According to the thorough history
provided in D. Michael Risinger, Mike P. Denbeaux & Michael J. Saks,
Exorcism of Ignorance as a Proxy for Rational Knowledge: The
Lessons of Handwriting Identification “Expertise,” 137 U. Pa. L. Rev.
731, 762 (1988), by 1925 all but five jurisdictions in the United States
had declared handwriting expertise permissible. Despite its early and
continued27 recognition, some courts can still be persuaded to
exclude handwriting identification

788
 evidence. In United States v. Saelee, 162 F. Supp. 2d 1097 (D.
Alaska 2001), the defendant, charged with three counts of importing
opium in violation of federal drug laws, sought to exclude the
testimony of John W. Cawley, III, a forensic document analyst with the
U.S. Postal Service. After concluding that the 2000 amendments to
FRE 702 required a Daubert hearing on the admission of Mr.
Cawley's testimony, as it was based on “technical or other specialized
knowledge,” the court concluded that testimony on handwriting
identification was unreliable for several reasons:
[Reliability in this case may be determined by asking] whether the theories and
techniques of handwriting comparison have been tested, whether they have been
subjected to peer review, the known or potential error rate of forensic document
examiners, the existence of standards in making comparisons between known writings
and questioned documents, and the general acceptance by the forensic evidence
community [of handwriting analysis]. [United States v. Saelee, 162 F. Supp. 2d 1097,
1101 (D. Alaska 2001).]
After concluding that the field of handwriting analysis failed to meet
the first four of these requirements, the court examined the fifth and
ultimately excluded the evidence, stating:
Finally, the evidence does indicate that there is general acceptance of the theories and
techniques involved in the field of handwriting analysis among the closed universe of
forensic document examiners. This proves nothing. Testimony from these experts has,
until recently, been uncritically accepted as reliable in the courts. Having previously
testified somewhere as an expert document examiner was usually sufficient
qualification. “Courts have long received handwriting analysis testimony as admissible
evidence.” United States v. Paul, 175 F.3d 906, 910 n.2 (11th Cir. 1999). However, the
fact that this type of evidence has been generally accepted in the past by courts does
not mean that it should be generally accepted now, after Daubert and Kumho. [United
States v. Saelee, 162 F. Supp. 2d 1097, 1104-1105 (D. Alaska 2001).]
Nonetheless, one commentator points out: “Even when the most
vulnerable forensic sciences—[including] handwriting—are attacked,
the courts routinely affirm admissibility citing earlier decisions rather
than facts established at a hearing. Defense lawyers generally fail to
build a challenge with appropriate witnesses and new data. Thus,
even if inclined to mount a Daubert challenge, they lack the requisite
knowledge and skills, as well as the funds, to succeed.”28 The NAS
Committee Report agrees that “[t]he scientific basis for handwriting
comparisons needs to be strengthened.” However, while concerned
that research to quantify the “reliability and replicability” of
handwriting analysis is limited, the Committee acknowledged that
“recent studies have increased [the scientific community's]
understanding of handwriting,” and that “there may be a scientific
basis for handwriting comparison.”29
Fingerprint Identification. The Saelee court's statement to the fact
that handwriting analysis evidence “has been generally accepted in
the past . . . does not mean that it should be generally accepted now”
might just as well be applied to a recent

789

decision on fingerprint analysis, which seemed to be well-settled

evidence until United States v. Plaza, 179 F. Supp. 2d 492 (E.D. Pa.
2002), vacated, 188 F. Supp. 2d 549 (E.D. Pa. 2002). In Plaza, the
defendant moved to exclude testimony on FBI fingerprint analysis
(ACE-V) for failure to meet the criteria set forth in Daubert and
Kumho. After a lengthy consideration of the history of the use of
fingerprint evidence in U.S. courts and the science behind such
evidence, the court ruled that “no expert witness for any party will be
permitted to testify that, in the opinion of the witness, a particular
latent print is—or is not—the print of a particular person.” Plaza, 179
F. Supp. 2d at 518. The reasoning for the ruling was stated as
follows:
The court finds that ACE-V does not adequately satisfy the “scientific” criterion of testing
(the first Daubert factor) or the “scientific” criterion of peer review (the second Daubert
factor). Further, the court finds that the information of record is unpersuasive, one way or
another, as to ACE-V's “scientific” rate of error (the first aspect of Daubert's third factor),
and that, at the critical evaluation stage, ACE-V does not operate under uniformly
accepted “scientific” standards (the second aspect of Daubert's third factor). [United
States v. Plaza, 179 F. Supp. 2d 492, 517 (E.D. Pa. 2002).]
Though the court later reversed its decision in light of new evidence
on the reliability of the ACE-V methodology, the Plaza case marked
the first time that fingerprint evidence had been rejected under a
Daubert analysis. Subsequent cases have generally admitted
testimony on fingerprint identification. See, e.g., United States v.
Mitchell, 365 F.3d 215 (3d Cir. 2004) (admitting fingerprint
identification testimony after extensive Daubert hearing); United
States v. Crisp, 324 F.3d 261 (4th Cir. 2003), cert. denied, 540 U.S.
888 (2003); United States v. George, 363 F.3d 666 (7th Cir. 2004);
United States v. Janis, 387 F.3d 682 (8th Cir. 2004); United States v.
Abreu, 406 F.3d 1304 (11th Cir. 2005). However, after Plaza,
exclusion of fingerprint evidence is now at the district court's
discretion in at least one jurisdiction. See Jacobs v. Virgin Islands, 53
Fed. App'x. 651 (3d Cir. 2002) (affirming exclusion of fingerprint
evidence as within district court's discretion).
For current views on the issue, it is once again useful to turn to the
NAS Committee Report:
Over the years, the courts have admitted fingerprint evidence, even though this
evidence has “made its way into the courtroom without empirical validation of the
underlying theory and/or its particular application.”30 The courts sometimes appear to
assume that fingerprint evidence is irrefutable. For example, in United States v. Crisp,
the court noted that “[w]hile the principles underlying fingerprint identification have not
attained the status of scientific law, they nonetheless bear the imprimatur of a strong
general acceptance, not only in the expert community, but in the courts as well.”31 The
court went on to say:

[E]ven if we had a more concrete cause for concern as to the reliability of fingerprint
identification, the Supreme Court emphasized in Daubert that “[v]igorous cross-
examination, presentation of contrary evidence, and careful instruction on the burden
of proof are the traditional and appropriate means of attacking shaky but admissible
evidence.” Daubert, 509

790
U.S. at 596. Ultimately, we conclude that while further research into fingerprint
analysis would be welcome, “to postpone present in-court utilization of this bedrock
forensic identifier pending such research would be to make the best the enemy of the
good.”32
Opinions of this sort have drawn sharp criticism:
[M]any fingerprint decisions of recent years . . . display a remarkable lack of
understanding of certain basic principles of the scientific method. Court after court, for
example, [has] repeated the statement that fingerprinting met the Daubert testing
criterion by virtue of having been tested by the adversarial process over the last one-
hundred years. This silly statement is a product of courts' perception of the
incomprehensibility of actually limiting or excluding fingerprint evidence. Such a
prospect stilled their critical faculties. It also transformed their admissibility standard
into a Daubert-permissive one, at least for that subcategory of expertise.33
 This is a telling critique, especially when one compares the judicial decisions that have
pursued rigorous scrutiny of DNA typing with the decisions that have applied less
stringent standards of review in cases involving fingerprint evidence.
In holding that fingerprint evidence satisfied Daubert's reliability and relevancy
standards for admissibility, the Fourth Circuit's decision in Crisp noted approvingly that
“the Seventh Circuit [in United States v. Havvard, 260 F.3d 597 (7th Cir. 2001)]
determined that Daubert's 'known error rate' factor was satisfied because the expert in
Havvard had testified that the error rate for fingerprint comparison was 'essentially zero.'
”34 This statement appears to overstate the expert's testimony in Havvard, and gives
fuel to the misconception that the forensic discipline of fingerprinting is infallible. The
Havvard opinion actually described the expert's testimony as follows:

[The expert] testified that the error rate for fingerprint comparison is essentially zero.
Though conceding that a small margin of error exists because of differences in
individual examiners, he opined that this risk is minimized because print
identifications are typically confirmed through peer review. [The expert] did
acknowledge that fingerprint examiners have not adopted a single standard for
determining when a fragmentary latent fingerprint is sufficient to permit a comparison,
but he suggested that the unique nature of fingerprints is counterintuitive to the
establishment of such a standard and that through experience each examiner
develops a comfort level for deciding how much of a fragmentary print is necessary to
permit a comparison.35
This description of the expert's equivocal testimony calls into question any claim that
fingerprint evidence is infallible.
The decision in Crisp also pointed out that “[f]ingerprint identification has been
admissible as reliable evidence in criminal trials in this country since at least 1911.”36
The court, however, pointed to no studies supporting the reliability of fingerprint
evidence. When forensic DNA first appeared, it was sometimes called “DNA
fingerprinting” to suggest that it was as reliable as fingerprinting, which was then viewed
as the premier identification science and one that consistently produced irrefutable
results. During the effort to validate DNA evidence for courtroom use, however, it
became

791
apparent that assumptions about fingerprint evidence had been reached without the
scientific scrutiny being accorded DNA. When the Supreme Court decided Daubert in
1993, with its emphasis on validation, legal commentators turned their attention to
fingerprinting and began questioning whether experts could match and attribute
fingerprints with a zero error rate as the FBI expert claimed in Havvard, and whether
experts should be allowed to testify and make these claims in the absence of
confirmatory studies. As noted above, most of these challenges have thus far failed, but
the questions persist.
The 2004 Brandon Mayfield case refueled the debate over fingerprint evidence. The
chronology of events in the Mayfield case is as follows:
 March 11, 2004: Terrorists detonate bombs on a number of trains in Madrid, Spain,
killing approximately 191 people, and injuring thousands more, including a number of
United States citizens.
May 6, 2004: Brandon Bieri Mayfield, a 37-year-old civil and immigration lawyer,
practicing in Portland, Oregon, is arrested as a material witness with respect to a
federal grand jury's investigation into that bombing. An affidavit signed by FBI Special
Agent Richard K. Werder, submitted in support of the government's application for the
material witness arrest warrant, [avers] that Mayfield's fingerprint has been found on a
bag in Spain containing detonation devices similar to those used in the bombings,
and that he has to be detained so that he cannot flee before the grand jury has a
chance to obtain his testimony.
May 24, 2004: The government announces that the FBI has erred in its
identification of Mayfield and moves to dismiss the material witness proceeding.37
In March 2006, the Office of the Inspector General of the U.S. Department of Justice
issued a comprehensive analysis of how the misidentification occurred.38 And in
November 2006, the federal government agreed to pay Mayfield $2 million for his
wrongful jailing in connection with the 2004 terrorist bombings in Madrid.39 The Mayfield
case and the resulting report from the Inspector General surely signal caution against
simple, and unverified, assumptions about the reliability of fingerprint evidence.
In Maryland v. Rose, a Maryland State trial court judge found that the
Analysis, Comparison, Evaluation, and Verification (ACE-V) process
of latent print identification does not rest on a reliable factual
foundation.40 The opinion went into considerable detail about the
lack of error rates, lack of research, and potential for bias.
The judge ruled that the State could not offer testimony that any
latent fingerprint matched the prints of the defendant. The judge also
noted that, because the case

792

involved the possibility of the death penalty, the reliability of the

evidence offered against the defendant was critically important.41
Compositional Analysis of Bullet Lead. Another previously well-
settled area of expert testimony that has been largely discredited is
Compositional Analysis of Bullet Lead (CABL or CBLA), a method by
which bullets used in the commission of a crime are compared with
bullets found in the possession of a suspect. In such an analysis,
metal from the bullets at the scene is compared on a molecular level
with metal from bullets possessed by the suspect; if the bullets are
sufficiently similar in composition, the bullets are deemed to be from
the same lot and the suspect may be charged accordingly. This
method of analysis has been used by law enforcement since the
1960s.42 Courts have traditionally admitted CABL. However, in the
wake of a number of recent reports calling into question the reliability
of CABL as a methodology,43 courts subject the method to increased
scrutiny and, in some cases, exclude expert testimony on CABL for
failure to meet Daubert criteria. In United States v. Mikos, 2003 U.S.
Dist. LEXIS 22069 (N.D. Ill. Dec. 5, 2003), the defendant moved to
exclude CABL expert testimony that a bullet recovered from the body
of a murder victim matched bullets found in the defendant's
possession. The reasoning of the court in that case reflects the
skepticism in CABL as a scientific technique:
We understand that the FBI Laboratory has performed comparative bullet lead analysis
(CBLA) for many years. Furthermore, we understand that persons from the FBI

793
Laboratory . . . have for years been allowed to testify at trials as to their opinions
regarding the source of tested bullets based on CBLA. In our opinion, however, the
required standard of scientific reliability is met only as to the proposed opinion testimony
that the elements composition of the bullets recovered from the body is indistinguishable
from the composition of the bullets found in the Defendant's car. There is no body of
data to corroborate the government's expert's further opinion that from this finding it
follows that the bullets must or even likely came from the same batch or melt. The
motion to exclude the expert testimony . . . relating to comparative bullet lead analysis is
therefore granted. [United States v. Mikos, 2003 U.S. Dist. LEXIS 22069, at *18 (N.D. Ill.
Dec. 5, 2003).]
In contrast to fingerprint evidence, which is still generally believed to
be reliable despite recent findings to the contrary, CABL evidence is
beginning to be viewed with disfavor in many jurisdictions, to the point
that some courts have reversed previous convictions that were based
on CABL evidence. See, e.g., State v. Behn, 375 N.J. Super. 409
(N.J. Super. Ct. App. Div. 2005) (reversing conviction and remanding
for new trial where defendant was convicted on the basis of unreliable
CABL testimony). See also Ragland v. Commonwealth, 191 S.W.3d
569 (Ky. 2006) (disallowing CABL evidence and describing
scholarship that criticizes CABL).
Perhaps most pertinently, in 2004, at the request of the FBI, the
National Academies of Science completed a study on the reliability of
CABL as a technique, concluding:
The available data do not support any statement that a crime bullet came from a
particular box of ammunition. In particular, references to “boxes” of ammunition in any
form should be avoided as misleading under Federal Rule of Evidence 403.
Compositional analysis of bullet lead data alone also does not permit any definitive
statement concerning the date of bullet manufacture.
Detailed patterns of the distribution of ammunition are unknown, and as a result,
experts should not testify as to the probability that the crime scene bullet came from the
defendant. Geographic distribution data on bullets and ammunition are needed before
such testimony can be given.
It is the conclusion of the committee that, in many cases, CABL is a reasonably
accurate way of determining whether two bullets could have come from the same
compositionally indistinguishable volume of lead. It may thus in appropriate cases
provide additional evidence that ties a suspect to a crime, or in some cases evidence
that tends to exonerate a suspect. CABL does not, however, have the unique specificity
of techniques such as DNA typing to be used as standalone evidence. It is important
that criminal justice professionals and juries understand the capabilities as well as the
significant limitations of this forensic technique.

Eyewitness Identifications. Courts historically were reluctant to

admit expert testimony on the limits of eyewitness identifications. At
first, courts tended to deem this evidence as highly reliable while
distrusting the contrary expert testimony. Later, courts tended to
assume that the expert opinions were matters of common sense
already known to the jury.. If the jurors already are appropriately
skeptical of eyewitness identifications, putting an expert on the stand
to discourage the jury from believing eyewitness testimony may result
in an erroneous verdict through increasing the already appropriate
level of skepticism of the jurors. See, e.g., United States v.

794

Smith, 122 F.3d 1355 (11th Cir. 1997) (holding expert testimony on
the reliability of eyewitness identification inadmissible, because not
helpful to jury); United States v. Hall, 165 F.3d 1095 (7th Cir. 1998) (“.
. . expert testimony relating to eyewitness identification is strongly
disfavored.”). To be confident that such testimony is “helpful,” one
must know the reliability of the information presented and how it is
likely to affect the factfinder, which includes knowing the baseline
from which the factfinder is presently operating. This judicial attitude
is changing, however, as most courts find that such evidence is
admissible in certain circumstances. See, e.g., United States v.
Rodriguez-Berrios, 573 F.3d 55 (1st Cir. 2009) (affirming that
admission of expert testimony on the flaws inherent in eyewitness
identification “is a matter of case-by-case discretion”); United States
v. Brownlee, 454 F.3d 131 (3d Cir. 2006) (holding that expert
testimony on eyewitness identification would have been helpful to
trier of fact and exclusion of expert was reversible error); United
States v. Smithers, 212 F.3d 306 (6th Cir. 2000) (exclusion of expert
on eyewitness identification reversible error); United States v. Brien,
59 F.3d 274 (1st Cir. 1995) (holding the exclusion of such evidence
discretionary, not per se inadmissible); United States v. Rodrigues-
Felix, 450 F.3d 1117 (10th Cir. 2006) (collecting cases).
Admissibility of such testimony has gained credence with the growth
of what are collectively called “social framework” research. This refers
to cognitive biases that can affect perception and belief arising out of
racial and other social differences. This research has influenced
scholars who favor admission of expert testimony raising doubts
about eyewitness identifications. See Harvey Gee, Eyewitness
Testimony and Cross-Racial Identification, 35 New Eng. L. Rev. 835
(2001) (reviewing Elizabeth Loftus, Eyewitness Testimony (1996));
Jennifer L. Devenport, Steven D. Penrod, and Brian L. Cutler,
Eyewitness Identification Evidence: Evaluating Commonsense
Evaluations, 3 Psy. Pub. Poly. & L. 338 (1997); Michael R. Leippe,
The Case for Expert Testimony About Eyewitness Memory, 1 Psy.
Pub. Poly. & L. 909 (1995). In any event, the person offering an
expert witness must be prepared to qualify the witness as having
knowledge that the jury lacks that would be helpful to its decision.

QUESTION
The above discussion touches only a few of the more controversial
types of scientific evidence. Debates also surround statistics, survey
research, horizontal gaze nystagmus (the observation of eye tremors
as a method for gauging intoxication), the estimation of economic
losses in damages awards, identification through bite marks, modus
operandi, and the outer reaches of medical testimony. Though each
type of scientific evidence raises unique questions, can you articulate
a systematic approach for determining whether a given piece of
expert testimony will be admissible under the Federal Rules and
Daubert/Kumho? Do you have a sense of the concerns, either
enunciated by judges or not, that will lead courts to exclude probative
evidence?

795

7. A Law and Economics Perspective on Experts

RICHARD A. POSNER, THE LAW AND ECONOMICS OF

THE ECONOMIC EXPERT WITNESS

13 J. Econ. Perspectives 91 (1999)

There are several recurrent criticisms of the use of expert
witnesses. They are made with reference to expert witnesses in
general, but they do not exclude economists. All these criticisms
belong to the genre of economic theory known as “agency costs.”
The court corresponds to the principal in an ordinary principal-agent
relation, and the expert witness to the agent. The parties have
asymmetric information. The agent knows more; the principal knows
this and takes steps to try to align the agent's incentives with those of
the principal.
The first criticism is that expert witnesses paid by the respective
parties are bound to be partisans (“hired guns”) rather than being
disinterested, and hence presumptively truthful, or at least honest,
witnesses. This factor alone does not distinguish expert witnesses
sharply from a number of other common types of witnesses, notably
the parties themselves; but the difference, and the second criticism, is
that expert witnesses, it is feared, can mislead judges and juries more
readily than lay witnesses can because they are more difficult to pick
apart on cross-examination—they can hide behind an impenetrable
wall of esoteric knowledge. Even if an expert witness is demolished
on cross-examination by a lawyer who has been carefully prepped by
another expert, the jury may not understand the questions and
answers given on cross-examination well enough to realize that the
expert has been demolished.
The concern with tilt and the concern with the “bounded rationality”
of the trier of fact interact. The expert has both motive and means of
slanting the truth in favor of the client.
Third, and related to both preceding points, it is believed that
opposing experts often cancel each other out; the jury cannot choose
between them, so it ignores them and decides the case on the basis
of the nonexpert evidence. In such a case the expert evidence is
wasted.
The first concern (excessive partisanship) does not seem to me
very grave with respect to economic witnesses when they are
testifying in areas in which there is a substantial professional
consensus (a vital qualification, however, as we'll see). There are four
reasons for my conclusion.
1) Because most expert witnesses, including most economic expert
witnesses, are repeat players (unlike most lay witnesses), they have,
like other potentially disloyal agents, a financial interest in creating
and preserving a reputation for being honest and competent. Any
public judicial criticism of a witness—in an opinion, whether or not
formally published, or even in the transcript of a trial or other hearing
—is apt to impair the witness's career as a witness, sometimes fatally,
because the criticism is likely to be mentioned in the cross-
examination of the witness in any future case. Furthermore, many
economic expert witnesses are employed by consulting firms, which
have a corporate reputation that can be damaged by the errors of
their employees. There is a danger that judicial criticism of an expert
may be uninformed. But,

796
 if so, the negative impact on the expert's reputation will be less,
since the next time the expert testifies will offer an opportunity to
rebut the criticism if confronted with it during cross-examination.
The foregoing is not a complete answer to the criticism, because it
is the repeat player who also has an incentive to please clients so as
to be rehired in the future. The one-time expert witness presumably
has nothing to lose or gain from testifying in a partisan manner, given
the impermissibility of contingent fees for expert witnesses.
2) An expert witness who has a record of academic publication will
be “kept honest” by the fact that any attempt to repudiate his
academic work on the stand will invite devastating cross-examination.
This implies that a warning flag should go up whenever the expert
witness either has no record of academic publication or is testifying
about matters on which he has never published. Not only is such an
economist less likely to testify truthfully, but the lawyer's choice of that
person as an expert implies that the lawyer was unable to find a
knowledgeable economist willing to testify in support of the client's
position.
3) Because of the adversarial character of the American system of
litigation, and the requirement that the expert disclose evidence
during the pretrial discovery process and thus before the trial begins
(and in machine-readable form), expert evidence is subject to intense
critical scrutiny, which should deter irresponsible expert testimony. In
the case of economics, where the tradition of replicating previous
academic studies is weaker than in the natural sciences, a study
conducted for purposes of litigation is likely to receive more intense
scrutiny than an academic study, even one published in a refereed
journal.
4) An expert witness's evidence is inadmissible if it does not satisfy
the methodological standards in the expert's field—something that is
easier for the judge to determine than whether the analysis is correct.
This rule acts as a screen against “junk science.” The mesh of the
screen may actually be too fine, especially for economic expert
evidence, much of which is statistical. There is some judicial
reluctance to admit into evidence statistical studies that do not pass
the 5 percent test of statistical significance. . . .
 The second concern with the use of expert witnesses—the concern
with intelligibility once the evidence has been admitted—has
undoubted merit, but is easily overstated because it ignores the
lawyer's incentive to call persuasive witnesses. If a witness cannot
communicate in a way that the court understands, the testimony is
unlikely to be persuasive. This is a particularly important
consideration in jury trials, because jurors give less weight to
credentials than to clarity, and leads me to predict that jurors may
understand expert testimony as well as judges do; that is, the lawyer
will adjust the complexity of expert testimony to the comprehension of
the audience.
The third concern about expert testimony—that opposing experts
often cancel each other out—would be alleviated if, instead of
testifying, they selected a neutral expert. Even when there is no
neutral, it might seem that whenever the opposing experts canceled
each other out the parties would agree not to call them as witnesses,
to reduce the expense of litigation. This happens occasionally, but not
often, maybe because a lawyer who suggested that neither side
should call expert witnesses would be understood to be signaling that
the available experts on one side would actually be weaker than the
opposing experts.

797

Note that if market or other incentives kept experts fully honest,

defendants' lawyers would often not introduce expert testimony at all,
because they would find it difficult to locate a reputable expert who
would contradict the plaintiff's expert. So we should expect both sides
in a lawsuit to present expert witnesses more often the “softer” the
science related to the case. Where the use of economic experts is
most problematic is in the areas of economics in which there is no
professional consensus. This used to be, and to some extent still is,
the situation with regard to antitrust economics. A perfectly
respectable economist might be an antitrust “hawk,” another equally
respectable economist a “dove.” Each might have a long list of
reputable academic publications fully consistent with systematically
pro-plaintiff or pro-defendant testimony, and so a judge or jury would
have little basis for choosing between them. There might be no
available neutrals, in which event a court-appointed expert would
perforce be a partisan.

ASSESSMENTS
A-9.1. FRE 701. Defendant crashed into Plaintiff's car at an intersection. Plaintiff alleges that
Defendant was driving over the speed limit, was intoxicated, and ran a red light. To establish
these facts, Plaintiff wants to call Walter Wheeler, who was at the scene and will testify that
Defendant, when he exited his car, was wobbly and looked like he was drunk, that the smell
of alcohol was detectable, and that he slurred his speech and acted belligerently toward
bystanders who offered to help him. What is the best argument against admitting that portion
of Wheeler's testimony that the defendant “looked like he was drunk”?
A. The opinion is not rationally based on the witness's perception.
B. The opinion is not helpful to the jury, because the witness can describe the underlying
facts in greater detail and let the jury reach the conclusion about whether the witness
was drunk, a key issue in the case.
C. The opinion requires application of “scientific. . . or other specialized knowledge” that
can only be offered by an expert witness.
D. The opinion lacks foundation.
A-9.2. FRE 702-705. Donald Downs is being prosecuted for armed bank robbery. His
defense is mistaken identity: The perpetrator was someone other than himself. As its final
witness, the prosecution calls FBI agent Eugene Columbo, who investigated the case, as an
expert witness. He will testify that he is a specialist in bank robbery investigations, with over
15 years of field investigative experience; that he teaches bank robbery investigation and
criminal profiling techniques at the FBI training academy; and that he has been invited as a
guest instructor in bank robbery investigations by over 20 police departments around the
country. Based on his investigation, which includes reviewing all of the evidence offered by
the prosecution in the case, plus certain inadmissible evidence from the case file that has not
been disclosed to the jury, Columbo is prepared to testify that he is certain that Downs
robbed the bank in question in this case. The best argument for the defense to exclude this
testimony is:

798
A. The opinion usurps the jury's role and is therefore unhelpful, because the jury should be
able to reach this conclusion on its own from the admissible evidence.
B. FRE 704 bars Columbo's testimony, because it embraces the ultimate issue in a
criminal case.
C. FRE 703 bars Columbo's testimony, because an expert witness cannot base his opinion
on inadmissible matter.
D. Columbo is not qualified to give an expert opinion on this subject.
A-9.3. FRE 702-705. Brent Nemerov is being prosecuted for possession of marijuana with
intent to distribute. The FBI agent who arrested Nemerov is on the witness stand, and will
testify as follows, in the absence of any objection: “On April 19, 2015, I executed a search
warrant of Nemerov's home and discovered 30 plants in his growing room. Government's
Exhibit 1 is a photograph taken by a forensic photographer (whose name I forget) which
accurately depicts Nemerov's growing room. Under my personal supervision, the plants were
removed from Nemerov's house by evidence technicians and taken to the FBI evidence
storage facility.” Defense counsel objects to the term “growing room” as an “improper
conclusion or opinion.” The objection should be:
A. Overruled, because growing room is a fact perceived by the witness with his senses,
and not an opinion.
B. Overruled, because the defense counsel stated no valid ground or evidence rule.
C. Sustained, because growing room is an opinion.
D. Sustained, because growing room is an expert opinion, and the Agent must be qualified
as an expert before giving it.
A-9.4. FRE 702-705. A jury found that ABC Radio breached its contract with Children's
Radio and misappropriated trade secrets. During the trial, the judge allowed economist
Stephen Willis to testify that, absent ABC's damaging conduct, Children's Radio would have
been valued at $30 million. The expert stated that any or all of the defendant's allegedly
wrongful acts would have caused the same amount of damages. On defendant's post-trial
motion, the judge ruled that Willis's testimony should not have been admitted because,
although he applied an “uncontroversial accounting method,” his ultimate opinions were
dubious. On appeal, Children's Radio argued that, under Daubert, a court can review only
the methodology of the expert, not his or her conclusions.
TRUE or FALSE: The trial judge's post-trial motion excluding the
expert testimony is within the trial court's discretion, because the trial
court can decide that the ultimate opinion is dubious even if the
methodology is reliable.
A-9.5. FRE 702-705. James Boyd was terminated from his job when, after he missed five
weeks of work for claimed mental health reasons, the company's psychologists reported that
his leave was not medically required. Boyd brought suit under the Family Medical Leave Act
(FMLA). On a motion for summary judgment the employer offered the depositions of the
company's psychologists, neither of whom

799
supported Boyd's claim that his absence, purportedly due to the stress and anxiety of his job,
constituted protected leave under the FMLA. Boyd responded with the affidavit testimony of
his expert witness, Dr. Emory. The affidavit consisted of three paragraphs detailing Dr.
Emory's expert credentials. The one paragraph dealing specifically with Boyd's case stated
as follows, in its entirety:
Based upon my review of the records and my examination of Mr. Boyd, it is my
professional opinion that Mr. Boyd's health condition rendered him unable to perform his
job, and in fact left him disabled. Continued work would have increased his health
problems and, in my professional opinion, the only solution to Mr. Boyd's medical
 condition would have been a leave of absence. At a minimum, Mr. Boyd required a leave
of absence to obtain treatment for his condition.
The defendant moves for summary judgment, claiming that the
Emory affidavit should be excluded and that, without it, Boyd raises
no genuine issue as to whether he suffered a serious health condition
under FMLA. Boyd argues that Dr. Emory's affidavit should not be
excluded because Rule 705 permits Dr. Emory to give his opinion
without prior disclosure of the underlying facts and data.
TRUE or FALSE: The affidavit should be excluded.

A-9.6. FRE 702. The CEO of a company suspected of bribery and kickbacks allegedly
deleted documents from the company's computer. The government's specialist electronically
searched the computer for deleted files, using special software, and came to court to testify
about the findings. This testimony must satisfy FRE 702 in order to be admissible. TRUE or
FALSE?
A-9.7. FRE 702. TRUE or FALSE: When a scientific expert's testimony contradicts scientific
consensus, the trial judge must exclude it.

ANSWERS
A-9.1. FRE 701. The best answer is B, for the reasons stated. See FRE 701(b). A is not the
best answer, because the witness has firsthand knowledge of facts from looking at the
defendant that might support the opinion. D is a restatement of A, and is not the best answer
for the same reason. C is not the best answer, because most courts deem observing
drunkenness to be a matter of ordinary experience of most people.
A-9.2. FRE 702-705. The best answer is A. The expert opinion, to be admissible, must
“assist the trier of fact to understand the evidence.” Here, because the opinion goes to the
ultimate issue in the case, there is a risk that it will intrude on the factfinders' job. Columbo
has made inferences based on circumstantial evidence in his investigation and concluded
that Douglas is guilty. But making inferences based on nontechnical, circumstantial evidence
to determine guilt or innocence is exactly what we rely upon juries to do. If that were viewed
as requiring special expertise, there would be no point in having a lay jury sit as the
factfinder. Finally, the opinion is unhelpful to the jury because it goes without saying that the
government believes Douglas is guilty—otherwise, they should not be prosecuting him. The
jury system is supposed to be an independent review of the government's decision; this type
of

800
opinion would turn it into a rubber stamp. B is wrong because FRE 704 bars ultimate issue
opinions only when they purport to state whether or not a criminal defendant has the mental
state constituting an element of the crime charged or an element of a defense. Any policy
concern about ultimate issue opinion testimony here folds back into answer A. D is wrong,
because Columbo would undoubtedly qualify as an expert under FRE 702 based on his
specialized knowledge arising from his extensive skill, experience, and training.
C is not a good answer, if your ground for making it is the mere fact
of reliance on inadmissible matter. FRE 703 permits an expert to rely
on inadmissible evidence so long as such evidence is of a type
“reasonably relied upon by experts in the particular field.” FRE 703.
However, C could be built into a good argument—perhaps as strong
as A—based on the concern that Columbo is suggesting there is
evidence of guilt available to him but not the jury. This raises a
significant issue of unfair prejudice. Moreover, it is far from clear that
inadmissible evidence should be considered by experts in criminal
investigations, at least in reaching conclusions about whether to bring
a case to trial. To the extent that investigation methodology properly
relies on inadmissible evidence, that methodology seems directly to
conflict with the policy of trying criminal defendants on admissible
evidence.
A-9.3. FRE 702-705. The best answer is D, for the reasons stated. Characterizing the room
as a “growing room” suggests a conclusion about how the room is being used based on
various specific facts, only some of which have been provided. Undoubtedly, the opinion is
not a matter of common knowledge; the Agent could probably be qualified as an expert
without great difficulty, however. For this reason, A is not a good answer. The fact/opinion
distinction is relative, but here the level of generality and closeness to a central, disputed
issue make “growing room” highly likely to be found an opinion. B is wrong, because no
magic words are required for an objection; counsel used enough language to make clear that
he was invoking FRE 701 and 702. C is not the best answer, because it is incomplete—not
all opinion testimony is objectionable.
A-9.4. FRE 702-705. TRUE:
This assertion [by Willis] that any or all of the alleged wrongful acts would have caused
the same outcome is dubious. Children's argues that, under Daubert, a court can review
only the methodology of the expert, not his or her conclusions. “But nothing in . . .
Daubert . . . requires a district court to admit opinion evidence that is connected to
existing data only by the ipse dixit of the expert. A court may conclude that there is
simply too great an analytical gap between the data and the opinion proffered.” General
Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997).
Children's Broadcasting Corp. v. Walt Disney Co., 245 F.3d 1008, (8th
Cir. 2001).
A-9.5. FRE 702-705. TRUE. FRE 705 is intended to permit the expert to state his opinion
first, before explaining the methodology. But FRE 705 does not dispense with the need to
explain methodology to the trier of fact. Moreover, FRE 705 governs only how the evidence
will be presented at trial, and does not trump FRE 702(b)'s requirement that admissibility
depends on a showing of “sufficient facts or data.” Here, the expert gives only a bare
conclusion. Again, as Joiner makes clear, a district court has

801
discretion to exclude such opinions—and probably should, in the absence of the FRE 702
showing. An important practice point here is that, in a summary judgment affidavit, expert
conclusions should be affirmatively supported by the showings required under FRE 702(b)-
(d) for admissible expert testimony.
A-9.6. TRUE. This testimony relies on technical or, at the very least, “other specialized”
knowledge as to how the government's software works to detect deleted computer files.
Hence, it falls under FRE 702. The government's specialist testifies as an expert, rather than
percipient, witness. United States v. Ganier, 468 F.3d 920 (6th Cir. 2006) (categorizing
government's witness as an expert on similar facts).
A-9.7. FALSE. FRE 702 and the Daubert multifactor test have rejected the consensus rule of
Frye and given trial judges broad discretion in the matter.

1. Doctor Lamm received his master's and doctor of medicine degrees from the University
of Southern California. He has served as a consultant in birth-defect epidemiology for the
National Center for Health Statistics and has published numerous articles on the magnitude
of risk from exposure to various chemical and biological substances.
2. For example, Shanna Helen Swan, who received a master's degree in biostatics from
Columbia University and a doctorate in statistics from the University of California at Berkeley,
is chief of the section of the California Department of Health and Services that determines
causes of birth defects, and has served as a consultant to the World Health Organization, the
Food and Drug Administration, and the National Institutes of Health. Stewart A. Newman,
who received his master's and a doctorate in chemistry from Columbia University and the
University of Chicago, respectively, is a professor at New York Medical College and has
spent over a decade studying the effect of chemicals on limb development. The credentials
of the others are similarly impressive.
3. We note that scientists typically distinguish between “validity” (does the principle support
what it purports to show?) and “reliability” (does application of the principle produce
consistent results?). See Black, A Unified Theory of Scientific Evidence, 56 Ford. L. Rev.
595, 599 (1988). Although “the difference between accuracy, validity, and reliability may be
such that each is distinct from the other by no more than a hen's kick,” Starrs, Frye v. United
States Restructured and Revitalized: A Proposal to Amend Federal Evidence Rule 702, 26
Jurimetrics J. 249, 256 (1986). Our reference here is to evidentiary reliability—that is,
trustworthiness. Cf., e.g., Advisory Committee's Notes on Fed. Rule Evid. 602 (“ '[T]he rule
requiring that a witness who testifies to a fact which can be perceived by the senses must
have had an opportunity to observe, and must have actually observed the fact' is a 'most
pervasive manifestation' of the common law insistence upon 'the most reliable sources of
information;' ” (citation omitted)): Advisory Committee's Notes on Art. VIII of the Rules of
Evidence (hearsay exceptions will be recognized only “under circumstances supposed to
furnish guarantees of trustworthiness”). In a case involving scientific evidence, evidentiary
reliability will be based upon scientific validity.
4. [Latin for “the mere say-so.” – E .]
 5. This disclosure must be made at the time designated by the court or by stipulation, or
else “at least 90 days before the date set for trial or for the case to be ready for trial.” F. R.
Civ. P. 26(a)(2)(D)(i). Experts whose testimony “is intended solely to contradict or rebut
evidence on the same subject matter” covered by the opposing expert may be disclosed
“within 30 days after the other party's disclosure.” Id., at (ii). The idea of this latter provision is
to give a party time to obtain a rebuttal expert.
6. “Present value” is the amount of money that would have to be paid in a lump sum today
in order to equal one or more payments of money expected in the future. The key variable in
present value calculations is the interest rate. If you were owed $10 at the end of one year, a
$9 payment today would be the equivalent if you could invest it at an interest rate of 11%.
The law regarding damage awards generally requires that future income streams—such as
lost future wages—be “reduced” to present value, i.e., a lump sum.
7. Hereinafter NAS Report 2009.
8. 509 U.S. 579 (1993).
9. Ibid., p. 589.
10. Ibid., pp. 590 and 591 n.9 (emphasis omitted).
11. Ibid., p. 595. In General Electric Co. v. Joiner, 522 U.S. 136, 146 (1997), the Court
added: “[C]onclusions and methodology are not entirely distinct from one another. Trained
experts commonly extrapolate from existing data. But nothing in Daubert or the Federal
Rules of Evidence requires a district court to admit opinion evidence that is connected to
existing data only by the ipse dixit of the expert.”
12. Daubert, 509 U.S. at 589, 590 n.9, 595.
13. Ibid., pp. 593-94.
14. Ibid., p. 594. In Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999), the Court
confirmed that the Daubert factors do not constitute a definitive checklist or test. Kumho Tire
importantly held that Rule 702 applies to both scientific and nonscientific expert testimony;
the Court also indicated that the Daubert factors might be applicable in a trial judge's
assessment of the reliability of nonscientific expert testimony, depending upon “the particular
circumstances of the particular case at issue.” Ibid., at 150.
15. Daubert, 509 U.S. at 596.
16. See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 142-143 (1997).
17. Kumho Tire, 526 U.S. at 153.
18. See, e.g., P. J. Neufeld. 2005. The (Near) Irrelevance of Daubert to Criminal Justice:
And Some Suggestions for Reform. American Journal of Public Health 95(Supp.1): S107.
19. Ibid., p. S109.
20. See, e.g., McClain v. Metabolife Int'l, Inc., 401 F.3d 1233 (11th Cir. 2005); Chapman v.
Maytag Corp., 297 F.3d 682 (7th Cir. 2002); Goebel v. Denver & Rio Grande W. R.R. Co.,
215 F.3d 1083 (10th Cir. 2000); Smith v. Ford Motor Co., 215 F.3d 713 (7th Cir. 2000);
Walker v. Soo Line R.R. Co., 208 F.3d 581 (7th Cir. 2000); 1 D.L. Faigman, M.J. Saks, J.
Sanders, & E.K. Cheng. 2007-2008. Modern Scientific Evidence: The Law and Science of
Expert Testimony. Eagan, MN: Thomson/West, §1.35, p. 105 (discussing studies suggesting
that courts “employ Daubert more lackadaisically in criminal trials—especially in regard to
prosecution evidence—than in civil cases—especially in regard to plaintiff evidence”).
21. Daubert, 509 U.S. at 596-597.
22. J. Griffin & D.J. LaMagna. 2002. Daubert Challenges to Forensic Evidence: Ballistics
Next on the Firing Line. The Champion, September-October:20, 21 (quoting P. Giannelli and
E. Imwinkelried. 2000. Scientific Evidence: The fallout from Supreme Court's Decision in
Kumho Tire. Criminal Justice Magazine 14(4):12, 40).
 23. Ibid. See, e.g., United States v. Crisp, 324 F.3d 261, 270 (4th Cir. 2003) (noting “that
while further research into fingerprint analysis would be welcome, to postpone present in-
court utilization of this bedrock forensic identifier pending such research would be to make
the best the enemy of the good.” (internal quotation marks omitted)).
24. See J. L. Mnookin, Expert Evidence, Partisanship, and Epistemic Competence. 73
Brook. L. Rev. 1009, 1033 (2008) (“[S]o long as we have our adversarial system in much its
present form, we are inevitably going to be stuck with approaches to expert evidence that are
imperfect, conceptually unsatisfying, and awkward. It may well be that the real lesson is this:
those who believe that we might ever fully resolve—rather than imperfectly manage—the
deep structural tensions surrounding both partisanship and epistemic competence that
permeate the use of scientific evidence within our legal system are almost certainly destined
for disappointment.”).
25. See Robert Rosenthal, State of New Jersey v. Margaret Kelly Michaels: An Overview,
1 Psychol., Pub. Poly. & L. 246 (1995) for a description of the prosecution of Margaret Kelly
Michaels for child abuse on the basis of repressed memory.
26. For a thorough look at the steady stream of Bendectin cases that began in 1977, see
Joseph Sanders, Bendectin on Trial: A Study of Mass Tort Litigation (Ann Arbor: The
University of Michigan Press, 1998).
27. Many courts continue to allow handwriting identification evidence. See D. Michael
Risinger, Navigating Expert Reliability: Are Criminal Standards of Certainty Being Left on the
Dock?, 64 Alb. L. Rev. 99, 140 n.161 (2000) for an extensive list which includes: United
States v. Battle, No. 98-3246, 188 F.3d 519 (10th Cir. Aug. 6, 1999) (rejecting the defendant's
challenge to the testimony of a qualified document examiner who testified that the defendant
had forged the signature of another individual); United States v. Paul, 175 F.3d 906, 911
(11th Cir. 1999) (affirming the trial court's decision to allow an FBI document examiner to
testify that the defendant authored an extortion note); United States v. Jones, 107 F.3d 1147,
1161 (6th Cir. 1997) (upholding the admissibility of a United States Postal Service forensic
document analyst's testimony that the defendant's signature was on various documents
related to a stolen credit card).
28. NAS Report 2009, citing P. J. Neufeld. 2005. The (near) irrelevance of Daubert to
criminal justice: And some suggestions for reform. American Journal of Public Health 95
(Supp. 1): S107, S110.
29. NAS Report 2009 (internal citations omitted).
30. M. A. Berger, Procedural Paradigms for Applying the Daubert test. 78 Minn. L. Rev.
1345, 1354 (1994).
31. 324 F.3d 261, 268 (4th Cir. 2003).
32. Ibid., pp. 269-270 (second alteration in original) (other internal citation omitted).
33. 1 Faigman et al., op. cit., §1:1, p. 4; see also J. J. Koehler, Fingerprint Error Rates and
Proficiency Tests: What They Are and Why They Matter. 59 Hastings L.J. 1077 (2008).
34. 324 F.3d at 269 (quoting Havvard, 260 F.3d at 599).
35. Havvard, 260 F.3d at 599. The Havvard decision is sharply criticized by 1 Faigman et
al., op. cit., §1:30, pp. 86-89.
36. Crisp, 324 F.3d at 266. The decision cites a number of other legal references,
including, inter alia: People v. Jennings, 96 N.E. 1077 (1911); J. L. Mnookin, Fingerprint
Evidence in an Age of DNA Profiling. 67 Brook. L. Rev. 13 (2001) (discussing history of
fingerprint identification evidence).
37. S. T. Wax and C. J. Schatz. 2004, A Multitude of Errors: The Brandon Mayfield Case.
The Champion. September-October, p. 6. The facts of the case and Mayfield's legal claims
against the government are fully reported in Mayfield v. United States, 504 F. Supp. 2d 1023
(D. Or. 2007).
38. Office of the Inspector General, Oversight and Review Division, U.S. Department of
Justice. 2006. A Review of the FBI's Handling of the Brandon Mayfield Case. Available at:
www.usdoj.gov/oig/special/s0601/exec.pdf.
39. E. Lichtblau. 2006. U.S. Will Pay $2 Million To Lawyer Wrongly Jailed. New York
Times. November 30, at A18.
40. Maryland v. Rose, Case No. K06-0545, mem. op. at 31 (Balt. Cnty. Cir. Ct. Oct. 19,
2007) (holding that the ACE-V methodology of latent fingerprint identification was “a
subjective, untested, unverifiable identification procedure that purports to be infallible” and
therefore ruling that fingerprint evidence was inadmissible). The ACE-V process is described
in Chapter Five.
41. Professor Jennifer Mnookin has also highlighted an important concern over “the
rhetorical dimensions of the testimony . . . provide[d] in court” by members of the fingerprint
community:
At present, fingerprint examiners typically testify in the language of absolute certainty.
Both the conceptual foundations and the professional norms of latent fingerprinting
prohibit experts from testifying to identification unless they believe themselves certain
that they have made a correct match. Experts therefore make only what they term
“positive” or “absolute” identifications—essentially making the claim that they have
matched the latent print to the one and only person in the entire world whose fingertip
could have produced it. In fact, if a fingerprint examiner testifies on her own initiative that
a match is merely “likely” or “possible” or “credible,” rather than certain, she could
possibly be subject to disciplinary sanction! Given the general lack of validity testing for
fingerprinting; the relative dearth of difficult proficiency tests; the lack of a statistically
valid model of fingerprinting; and the lack of validated standards for declaring a match,
such claims of absolute, certain confidence in identification are unjustified, the product of
hubris more than established knowledge. Therefore, in order to pass scrutiny under
Daubert, fingerprint identification experts should exhibit a greater degree of
epistemological humility. Claims of “absolute” and “positive” identification should be
replaced by more modest claims about the meaning and significance of a “match.”
J. L. Mnookin, The Validity of Latent Fingerprint Identification: Confessions of a Fingerprinting
Moderate. Law, Probability and Risk 7(2):127 (2008); see also Koehler, supra note 33.
42. See Committee on Scientific Assessment of Bullet Lead Elemental Composition
Comparison, National Research Council: Forensic Analysis: Weighing Bullet Lead Evidence
(2004).
43. See, e.g., Michael O. Finkelstein & Bruce Levin, Compositional Analysis of Bullet Lead
as Forensic Evidence, 13 J.L. & Poly. 119 (2005); William A. Tobin, Comparative Bullet Lead
Analysis: A Case Study In Flawed Forensics, 28 Champ. 12 (July 2004); Edward J.
Imwinkelried and William A. Tobin, Comparative Bullet Lead Analysis (CBLA) Evidence: Valid
Inference or Ipse Dixit?, 28 Okla. City U. L. Rev. 43 (2003); William A. Tobin and Wayne
Duerfeldt, How Probative Is Comparative Bullet Lead Analysis?, 17 Crim. Just. 26 (2002);
Robert D. Koons and Diana M. Grant, Compositional Variation in Bullet Lead Manufacture,
47 J. Foren. Sci. 950 (2002); Erik Randich et al., A Metallurgical Review of the Interpretation
of Bullet Lead Compositional Analysis, 127 Foren. Sci. Intl. 174 (2000).
* [Again, this is FRE 702 prior to its 2000 amendments.—E .]
803

CHAPTER TEN
THE PROCESS OF PROOF IN CIVIL
AND CRIMINAL CASES:
Burdens of Proof, Judicial Summary and
Comment, and Presumptions
We have studied in great detail the proof process at the level of
individual elements and items of evidence. We turn now to aspects of
the process of proof that affect the structure of trials and the
sufficiency of evidence as a whole. The roles of the judge and the jury
and their relationship to each other continue to be a central focus of
our inquiry.
Even if all the evidence each party wishes to produce is admitted
into evidence, the role of the trial judge is not at an end. Just as the
trial judge must make a preliminary determination concerning the
logical force and legal admissibility of any offered evidence, she must
also make a preliminary determination of the overall strength of each
party's case. The judge is empowered to issue rulings that terminate
the litigation at various stages in the proceedings based in large
measure on her assessment as to how reasonable people would
analyze the evidence offered at trial. In civil cases, judges may issue
a summary judgment before trial, Fed. R. Civ. P. 56, or a judgment as
a matter of law at or after trial, Fed. R. Civ. P. 50, if no reasonable jury
could find for the party against whom the judgment is issued (usually,
the plaintiff). Similarly, courts may dismiss a criminal case, Fed. R.
Crim. P. 29, or overturn a criminal conviction, Jackson v. Virginia, 443
U.S. 307 (1979), if no reasonable jury could find guilt beyond a
reasonable doubt. Judges must also instruct juries about what
standard of proof to apply in assessing the evidence as a whole.
 In addition to evaluating the sufficiency of the evidence and
instructing the jury about the standard of proof, the trial judge has
various means to influence the jury's deliberations. We have already
encountered one indirect instance of such power. By ruling on the
admissibility of specific proffers, the judge can dramatically influence
the jury's perspective. For example, if a judge finds that a proposed
witness lacks personal knowledge and thus cannot be placed on the
stand, the jury will not have before it that witness's testimony.
Suppose that the witness would have contradicted an important
witness of the adversary. By excluding the testimony, the judge
affects the proof process by constraining the jury's perspective. Thus,
the judge, by deciding questions of the admissibility of evidence, has
significant power to influence the deliberative

804

process. As we will see, the judge may also influence the

deliberative process by summarizing or commenting on the evidence.
We first discuss the process of proof in civil cases and then discuss
the process of proof in criminal cases. We treat them separately
because of the different standards and constitutional issues that arise
in criminal cases. First understanding how the various evidentiary
devices operate in civil cases will allow you to better understand the
additional complexities that arise in criminal cases. Although our
primary focus will be on jury trials, many of the same principles,
issues, and devices arise in bench trials as well.

A. THE PROCESS OF PROOF IN CIVIL CASES

In this section, we discuss three related aspects of the process of

proof in civil cases: the burdens of proof, judicial summary and
comment on the evidence, and evidentiary presumptions.

1. The Burdens of Proof in Civil Cases

A critical part of evaluating the parties' evidence is the application of
rules governing the burden of proof. There are two aspects to the
burden of proof—the burden of persuasion and the burden of
production. For the burden of persuasion, there are decision rules
that the jury must apply in evaluating the evidence. For most civil
cases the decision rule is a “preponderance of the evidence.” For
example, a plaintiff in a negligence action must persuade the jury by
a preponderance of the evidence that the defendant negligently
injured the plaintiff. In some special civil actions, the standard is “clear
and convincing evidence.” The second aspect of the burden of proof
is the production burden or the burden of producing evidence. For the
burden of production, the judge applies rules to determine whether a
party has produced enough evidence to create a factual issue before
the jury and avoid an adverse judgment on that issue. If a party fails
to meet its production burden prior to trial, the judge will issue a
summary judgment for the other side. Fed. R. Civ. P. 56. If a party
fails to meet a production burden at trial, the judge will issue a
judgment as a matter of law for the other side. Fed. R. Civ. P. 50. We
first discuss the burden of production and then the burden of
persuasion.
a. The Burden of Production

The Role of and Rationale for Production Burdens. Our system

of civil litigation does not give each party the automatic right to
proceed through the entire trial process and have the jury resolve the
case on the basis of whatever evidence the parties choose to
introduce. Rather, in order to proceed to that stage a party must
produce evidence that satisfies a burden of production.

805

Each issue to be litigated, whether it is an element or an affirmative

defense, has a burden of production associated with it that requires
one party or the other to produce evidence relevant to the particular
issue. If the party with a burden of production fails to produce
sufficient evidence on a particular issue, the judge will not permit the
issue to go to the jury. Thus, the burden of production informs the
parties how issues will be decided if no evidence is produced.
How, though, is one to know when a party with a burden of
production has produced sufficient evidence to avoid a ruling that
would decide an issue for the other side? A burden of production is
satisfied when the underlying purpose of the requirement is met. In
civil cases, the primary purpose of a burden of production is to ensure
that there are issues in the case that need to be resolved by the jury.
Issues need to be resolved by juries whenever there could be
reasonable disagreement as to which party should prevail. If there
could be no reasonable disagreement, there is no reason to go to the
expense and trouble of a trial, or to risk the possibility that the jury will
render an unsubstantiated verdict. In such a case, the judge should,
and will, render a judgment for the appropriate party. Thus, the failure
to satisfy a burden of production will result in the adversary's
prevailing on that particular issue. For this reason, the burden of
production is sometimes referred to as the risk of nonproduction.
The Relationship Between Production Burdens and Persuasion
Burdens. To decide if there could be reasonable disagreement about
which party should prevail, the judge must consider the burden of
persuasion. Assume, for example, that the plaintiff must prove a
particular fact by a preponderance of the evidence, a standard
commonly understood to mean that the disputed fact is “more likely
true than not.” The plaintiff will satisfy the burden of production by
presenting enough evidence to create a jury issue regarding that fact.
In other words, the plaintiff must produce enough evidence so that a
jury could find that the fact is “more likely true than not.” If no
reasonable person could conclude that the plaintiff has satisfied the
relevant burden of persuasion, then there is no reason to prolong the
proceedings on that issue. The judge should terminate the
proceedings with respect to the fact in favor of the defendant.
Similarly, if the plaintiff's evidence is so overwhelming that any
reasonable jury would find the fact more likely true than not, and the
defendant does not challenge or rebut the plaintiff's evidence, the
judge should terminate the proceedings with respect to that fact in
favor of the plaintiff. In short, the burden of production is a function of
the burden of persuasion. John T. McNaughton, Burden of Production
of Evidence: A Function of a Burden of Persuasion, 68 Harv. L. Rev.
1382 (1955). Whether a burden of production has been met depends
on whether, in light of the evidence, there could be reasonable
disagreement over which party should win. When there is room for
such disagreement, a jury question has been generated and the case
should proceed to trial.
The Relationship Between the Two Burdens Illustrated. The
relationship between burdens of production and burdens of
persuasion may be understood in more detail by reflecting on the
burdens in terms of probabilities. Jurors evaluate evidence by making
rough estimates of the likelihood that facts are true. In other words,

806

although jurors may not articulate or even tacitly assign specific

quantified degrees of probability to their conclusions, they make
factual assessments that may be expressed as probabilities. We may
also express burdens of persuasion in terms of probabilities—for
example, the preponderance standard could be taken to mean “more
than 50 percent likely.” For purposes of illustration only, assume that
jurors do think in roughly probabilistic terms and that a
preponderance of the evidence means more than a 50 percent
chance of the relevant fact being true.
Under these assumptions, one may diagram the evidentiary
process in such a way as to highlight the relationship between
burdens of production and burdens of persuasion. Assume that the
party with a burden of production produces some evidence. That
evidence will indicate that there is a certain chance that the relevant
facts are true. However, the evidence is likely to be not perfectly clear
as to what probability it generates. Looking at that evidence,
reasonable people could disagree about the probability to which the
evidence establishes some necessary fact. Does that mean that
every time evidence is produced a jury issue is generated because
there always will be reasonable disagreement about its implications?
No; a jury issue will be generated only when there is disagreement
about which party should win, and that requires referring to the
burden of persuasion. Consider now the three possibilities charted in
Diagram 10-1:

After a party produces evidence on an issue, this chart reflects the

three relevant possibilities in terms of the implications of the
evidence. First, the evidence produced may not be very convincing. A
reasonable person looking at it may conclude that it has some
persuasive force, but not very much. That possibility is represented
by Case 1. It indicates that, given the evidence, the probability of the
relevant fact being true ranges from about 10 to 35 percent (we could
have drawn that line segment anywhere between 0 and 50%, just so
long as it did not exceed 50%). In this case, the burden of production
has not been satisfied. Since no reasonable person could conclude
that the party producing the evidence should win, there is no reason
to send this issue to the jury. In Case 2, the evidence has generated
a jury issue. The evidence indicates a range of reasonable
persuasiveness from about 40 to 60 percent (here we could have

807

drawn the line segment in any fashion so long as it ranged over

50%). Since reasonable people could disagree about the implications
of the evidence in this case, the issue will be sent to the jury. Case 3
is similar to Case 1 in that again no reasonable disagreement could
exist as to the implications of the evidence. The evidence indicates
somewhere between a 65 and 90 percent chance of the relevant fact
being true (here the line could be drawn anywhere to the right of
50%).
Case 3 is different from Case 1 in one respect. We have been
assuming that the party with the burden of production has produced
evidence. In Case 1, the burden has not been met, and thus there is
no reason to proceed further. In Case 2, the burden of production has
been met, and the case will proceed. In Case 3, the burden has not
only been met, but exceeded. No reasonable person could disagree
about who should win. This conclusion, though, is based solely on the
evidence produced by one party. Case 3 differs from Case 1 in that
rather than the judge disposing of the issue, Case 3 requires that the
adversary be given a chance to produce contrary evidence in order to
demonstrate that there is a reasonable dispute about the relevant
fact. In Case 1, there is no reason to have the adversary proceed
because the party's evidence itself indicates that the relevant fact
cannot be established. Having the adversary produce still more
information substantiating that conclusion would be a waste of time
and other resources. In Case 3, however, the adversary has not yet
been heard and may be in possession of information that would affect
the analysis of how likely the relevant fact is, given all the evidence
(including the adversary's). Accordingly, in Case 3, the judge will not
dispose of the relevant issue. The party with the initial burden of
production cannot prevail before the adversary has an opportunity to
respond. After the adversary responds—and each side has had a
chance to rebut evidence submitted by the other side—one or both
parties may ask the judge to rule on the sufficiency of the evidence.
Procedural Mechanisms for Enforcing Burdens of Production.
The manner in which a party asks a judge to determine whether the
opponent has met a production burden depends on the time at which
the judge is asked to make such a ruling, and here we see the
interaction between the rules of evidence and civil procedure. One
possibility is that before any evidence is produced a party can move
for summary judgment. Fed. R. Civ. P. 56. The judge will grant the
motion if it can be determined from the pleadings and any supporting
documentation that there are no issues in need of judicial resolution
in the case. Such a decision, however, is equivalent to saying that
either Case 1 or Case 3 in the Diagram 10-1 is present—evidence
presented by the party with the production burden is either manifestly
insufficient (Case 1) or overwhelmingly strong (Case 3). If Case 2 is
present, the judge will deny the motion for summary judgment (by
either party) and the litigation will proceed.
Another possibility is that, if a case goes to trial, the judge may be
asked to test the strength of the evidence by a motion for judgment
as a matter of law at the end of a party's case. Fed. R. Civ. P. 50. The
analysis is similar to the analysis of summary judgment. For both
summary judgment and judgment as a matter of law, the judge's
decision will rest on the ability of a party to meet its burden of
persuasion and the adversary's ability to respond with sufficient
evidence to justify taking the issue to a

808

jury. As the Supreme Court observed in Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 252 (1986):
[T]he inquiry involved in a ruling on a motion for a summary judgment . . . necessarily
implicates the substantive evidence standard of proof that would apply at trial on the
merits. . . . The judge's inquiry, therefore, invariably asks whether reasonable jurors
could find by a preponderance of the evidence that the plaintiff is entitled to a verdict.
See also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,
150 (2000) (explaining that the standard for judgment as a matter of
law “mirrors” the standard for summary judgment). In short, the
burden of production and the motions for summary judgment and
judgment as a matter of law are functions of the burden of
persuasion. For further discussion of the relationships between these
procedural devices and the proof process, see Michael S. Pardo,
Pleadings, Proof, and Judgment: A Unified Theory of Civil Litigation,
51 B.C. L. Rev. 1451 (2010).
 The Allocation of Burdens of Production. Typically, the pleading
or moving party bears both the burden of pleading and the burden of
production. In general, whoever is asking the court to modify the
status quo, which is either the plaintiff or a party who filed a motion
for some sort of relief, must introduce sufficient evidence of the
relevant factual claims to justify a finding of fact consistent with those
claims. Thus, who bears the burden of production will normally be a
function of the position of the parties. If X sues Y for a breach of
contract, X will bear the burden of production on most factual issues.
If, by contrast, Y sues X in a declaratory judgment action asking the
court to certify that no breach had occurred, Y will bear the burden of
production on most of the identical factual issues. In most instances
there will be a well-established precedent allocating the burden of
production. If there is no such precedent, however, there is “no
satisfactory test” for allocating the burden of production. Fleming
James Jr., Burdens of Proof, 47 Va. L. Rev. 58, 58 (1961). We should
note in this connection that the Supreme Court's introduction of
“plausibility” requirements for pleadings (Ashcroft v. Iqbal, 556 U.S.
662 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)) did
not change the allocation of the burdens of proof. See Littlejohn v.
City of New York, 795 F.3d 297, 307-311 (2d Cir. 2015).

KEY POINTS
1. Every factual element of a claim or a defense has a production
burden associated with it.
2. The purpose of the production burden is to require the party
who has it to present enough evidence to create a jury
question.
3. The failure to satisfy the burden of production will result in a
judgment against the party with the burden.
4. The party with the burden of pleading a matter typically has the
burden of production with respect to that matter.
809
b. The Burden of Persuasion

The skeptic will say that we can know nothing with certainty
(although one might ask how the skeptic knows that). Even if there
are matters that we can know with certainty, disputes at trial typically
do not fall into that category. Indeed, without some uncertainty cases
would not make it to trial in the first place. Jurors (or judges in bench
trials) will usually be less than certain about the determinations they
are called upon to make. There may be credible, conflicting accounts
about what happened; there may be uncertainty about how much
weight to give scientific evidence; or there may be conflicting views
about how much weight to give a circumstantial inference. For
example, in the Johnson case, to what extent does evidence of
Officer Walker's character for violence suggest that he may have
been the first aggressor?
Burdens of Persuasion Are Decision Rules That Manage
Uncertainty. A burden of persuasion is a rule of decision that informs
the jury how to decide a case in light of the uncertainties that
inevitably will accompany the presentation of evidence. For example,
one possible rule of decision is that a plaintiff should prevail only if the
evidence establishes the plaintiff's case to a 95 percent certainty. This
rule would require a verdict for the defendant if there were more than
a slight doubt about the truth of the facts that the plaintiff must
establish.
Such a rule may initially seem to have an intuitive appeal—people
(defendants) should not be required to pay unless they have done
something wrong. Notwithstanding this intuitive appeal, it is not the
rule generally found in civil litigation because it would put plaintiffs at
a serious disadvantage. Requiring plaintiffs to meet such a high
burden, it is believed, would result in a disproportionate number of
wrongful verdicts for defendants at the expense of deserving
plaintiffs. The opposite rule—requiring defendants to show to a 95
percent certainty that they should not be held liable—would have the
opposite effect. Rather than adopt either of these two extremes, the
virtually uniform practice in civil litigation is to define the burden of
persuasion as a preponderance of the evidence. Plaintiffs must prove
each of their necessary factual claims to a preponderance of the
evidence, and defendants must establish affirmative defenses by the
same standard. Accordingly, judges instruct juries in civil cases to
analyze the evidence and render a verdict for the party in whose
favor the evidence “preponderates.” As we noted earlier,
preponderance is usually defined as meaning “more likely true than
not.” Thus, the task for juries is to determine whether the evidence
makes the plaintiff's story appear more likely true than not with
respect to the factual elements of a cause of action and to determine
whether the evidence makes the defendant's story appear more likely
true than not with respect to affirmative defenses.
The Premises Underlying the Preponderance Rule. The
preponderance rule incorporates an underlying assumption
concerning the participants in litigation: Plaintiffs as a class and
defendants as a class generally ought to be treated as equals. The
reason behind this assumption is twofold. First, the legal system must
be unbiased and evenhanded: Granted that mistakes in adjudicative
decisions are inevitable, money or property that a plaintiff loses
undeservedly should be considered to be as regrettable as a similar
undeserved loss suffered by the defendant. With the loss factor

810

being equal for both sides, the party with better—that is,
preponderating—evidence should prevail. Second, before a case is
resolved, one cannot know who should win; hence, it is as likely that
the defendant should win as the plaintiff. (Probability theorists call this
assumption the “principle of indifference” or the “principle of
insufficient reason.”) Assume that the plaintiff is suing the defendant
for $200 allegedly owed under a contract. Before the parties to this
dispute produce evidence relevant to its resolution, how should we
conceptualize the case—as one in which the plaintiff is trying to get
$200 of the defendant's money, as a case in which the defendant is
wrongfully refusing to pay, or as a case in which two individuals are
contesting whose $200 it is? The last view is intuitively most
compelling. Without knowing the facts, it seems just as likely that the
defendant is refusing to pay what is owed as that the plaintiff is
attempting to obtain an undeserved benefit.
One implication of the equivalency notion is that there should be
roughly the same number of errors made for plaintiffs as for
defendants. The preponderance standard may implement this result if
certain conditions exist. First, assume that in the set of all cases
going to trial there are approximately as many deserving plaintiffs as
deserving defendants. To cast it in terms of the famous Priest-Klein
hypothesis, when a civil dispute goes to trial, it is generally safe to
assume that the plaintiff's and the defendant's chances to prevail are
more or less equal. Had this not been the case, the parties would
have cheaply settled their dispute out of court instead of litigating it
expensively. George L. Priest & Benjamin Klein, The Selection of
Disputes for Litigation, 13 J. Legal Stud. 1 (1984).
Second, assume further that the jury will make a rough probability
assessment of the strength of each case presented by the parties.
Presumably, those probability assessments will range from 0.0 to 1.0.
Now compare the set of cases in which plaintiffs deserve to win to the
set of cases in which defendants deserve to win. For each set, it is
reasonable to suppose that evidence will reflect the merits of the
case. That is, in most of the cases in which plaintiffs deserve to win
the facts will support that conclusion, thus creating a probability
assessment of more than .5, which will result in a verdict for the
plaintiff. Only in the minority of cases in which the probability
assessment is .5 or less will there be wrongful verdicts for
defendants. By the same token, in most cases that defendants
deserve to win evidence will demonstrate that the defendant
deserves to win, thus creating a probability assessment of .5 or less
for the plaintiff's claim. Only in the minority of cases in which the
probability assessment is more than .5 will there be wrongful verdicts
for plaintiffs. If one assumes that the probability assessments for
these two sets are in a normal distribution over the range of 0.0 to
1.0, then the number of errors made for plaintiffs will approximate the
number of errors made for defendants, and the preponderance of the
evidence standard will have done its job. Moreover, the number of
factually correct jury verdicts will be greater than the number of
verdicts that are factually incorrect.
Diagram 10-2 demonstrates this proposition geometrically.1 The
horizontal axis is the probability that juries assign to cases, and the
vertical axis is the number of cases assigned a particular probability.
Graph I is the set of cases in which defendants deserve to win (which
means if we knew all the facts to certainty, the defendant would win).
Graph II is the set of cases in which plaintiffs deserve to win.

811

In Graph I, all of those cases to the right of the .5 level, which is the
heavily shaded area, are errors. In Graph II, all of the cases to the left
of the .5 level, which is again the heavily shaded area, are errors. The
larger the heavily shaded areas are, the more errors there are; the
smaller the heavily shaded areas are, the fewer errors there are. So
long as the heavily shaded areas under the two graphs are of
approximately equal size, then the preponderance standard will have
done its appointed task of equalizing errors among plaintiffs and
defendants. Note, however, that this equalization will occur only if
three conditions are met: The relevant areas under the two graphs
are roughly the same size; evidence presented in the cases is
generally a good indicator of which party deserves to win; and the
juries make no systematic errors in assessing the evidence. If any of
these conditions are not met, errors may not be allocated equally and
the jurors' verdicts might not be predominantly correct.
Higher Burdens of Persuasion. We can use these same graphs to
demonstrate why alternative, higher burdens of persuasion are
occasionally relied upon in civil cases. Courts use these burdens
when the parties' stakes in the dispute are unequal. For example,
many jurisdictions require allegations in civil cases of fraud or of
activity that would be criminal to be proven by clear and convincing
evidence. See also Addington v. Texas, 411 U.S. 418 (1979) (civil
commitment requires clear-and-convincing proof as a matter of
constitutional Due Process). Because of the gravity of such
allegations for one party, the chosen allocation of errors should favor
that party (which also explains the higher burden of persuasion in
criminal cases). Making the same assumptions as we did above, we
illustrate the effect of raising the burden of persuasion from a
preponderance to “clear and convincing” evidence in Diagram 10-3.
The shaded area again represents errors, and the effect of raising the
burden of proof is obvious. Errors favoring defendants increase and
errors favoring plaintiffs decrease, which is precisely the effect that
the higher burden of persuasion is designed to accomplish. Again,
though, bear in mind that the actual distribution of errors will depend
on the accuracy of the assumptions we are making.

812
 Although our primary concern here is civil cases, note that Diagram
10-3 can also explicate the proof beyond reasonable doubt
requirement for criminal cases: Assume that the horizontal and
vertical axes retain the same significance and simply move somewhat
to the right the vertical line representing the burden of persuasion
standard. This will show that the criminal proof standard allows many
guilty criminals to go free to avoid a mistaken conviction of a single
innocent defendant. This societal preference is understandable and
likely justified, but it is not as straightforward as many people believe.
See Larry Laudan, Truth, Error and Criminal Law: An Essay in Legal
Epistemology 55-61 (2006).
The Meaning of “Preponderance of the Evidence” in Practice.
Burdens of persuasion, or at least the preponderance burden, may
not operate as they are intended to. In an interesting study,
Professors Rita James Simon and Linda Mahan obtained data
indicating that jurors may understand “preponderance of the
evidence” to mean a probability somewhere between .7 and .8, while
judges consistently indicate that it means slightly more than .5. Rita
James Simon and Linda Mahan, Quantifying Burdens of Proof, 5 Law
& Soc'y Rev. 319 (1971). In this study, jurors were asked to translate
the phrase preponderance of the evidence into a probability
assessment rather than being informed that the phrase means “50
percent plus.” When so informed, however, there is data indicating
that individuals can follow such instructions. Dorothy K. Kagehiro &
W. Clark Stanton, Legal v. Quantified Definitions of Standards of
Proof, 9 Law & Hum. Behav. 159 (1985). When factfinders base their
decisions on the “relative plausibility” criterion, discussed in Chapter
Two, they must choose the best explanation for the evidence and
adopt the factual scenario that is more comprehensive, more
coherent, and better evidenced than its rivals. This system allows a
plaintiff to prevail only when her evidence clearly outscores the
defendant's evidence. See Ronald J. Allen & Alex Stein, Evidence,
Probability, and the Burden of Proof, 55 Ariz. L. Rev. 557, 574 (2013).
As also discussed in Chapter Two, there is empirical evidence that
jurors decide cases by constructing and evaluating overarching
stories or theories of what happened, often selecting among one of
the two presented by the parties. See pages 89-91, supra. Thus, in
practice, the preponderance standard will often be implemented by
selecting which version of what happened jurors find to be more
plausible, rather than by making explicit probability assessments. See
Michael S. Pardo, Second-Order Proof Rules, 61 Fla. L. Rev. 1083
(2009).

813

The Relative Nature of the Burden of Persuasion. From the

standpoint of the parties to an action, any burden of persuasion is
relative. If the plaintiff has a greater than 50 percent burden of
persuasion, the defendant will lose unless the jury can be convinced
by at least a 50 percent probability that the plaintiff's version of the
facts is untrue. If the defendant does not carry that burden, the
inevitable logical result will be that the jury believes that the plaintiff's
version of the facts is more than 50 percent likely to be true. Thus, to
say that the plaintiff has a greater than 50 percent burden of
persuasion is to say that the defendant has a 50 percent burden of
persuasion. Similarly, to say that a plaintiff has a 70 percent burden of
persuasion is to say that a defendant has a greater than 30 percent
burden of persuasion.
The Allocation of the Burden of Persuasion. As is true of
production burdens, a burden of persuasion for each necessary
element of a cause of action must be allocated to one party or the
other. Usually, the law is clear on which party has the burden of
persuasion. Plaintiffs typically bear the burden to prove by a
preponderance all of the elements of their claims, and defendants
bear the burden of persuasion for the elements of “affirmative
defenses.” If the law is not clear on this issue, however, there is no
very helpful formula or litmus test for determining who should have
the burden. Courts may consider a variety of factors, including (1)
which party has better access to evidence; (2) “the extent to which a
party's contention departs from what would be expected in light of
ordinary human experience”; (3) “a feeling that a charge of
wrongdoing should in fairness be proven by the party making it”; and
(4) “real or supposed reasons of policy [for which] the law sometimes
disfavors claims or defenses which it nevertheless allows.” Fleming
James Jr., Burdens of Proof, 47 Va. L. Rev. 58-59 (1961).
As far as constitutional law is concerned, states are free to allocate
burdens of proof in civil cases virtually any way they like. Lavine v.
Milne, 424 U.S. 577, 585 (1976) (“Outside the criminal area, where
special concerns attend, the locus of the burden of persuasion is
normally not an issue of federal constitutional concern.”); Cruzan v.
Dir., Mo. Dep't of Health, 497 U.S. 261, 280 (1990) (due process does
not forbid states from requiring clear and convincing evidence as a
proof of patient's wish for the withdrawal of life-sustaining treatment).
For example, a state may require one party to bear a burden of
production on an issue and the other party to bear the burden of
persuasion on that issue. States on occasion exercise the power to
allocate the burdens of proof in interesting ways. Consider the
following case.

SCHECHTER V. KLANFER

321 N.Y.S.2d 99, 28 N.Y.2d 228, 269 N.E.2d 812 (1971)

B , Judge.
In this negligence action for personal injuries, the issue is whether
the jury should have been instructed to hold plaintiff, who had by
amnesia lost his memory of the events causing his injury, to a lesser
degree of proof than a plaintiff who could have testified to the events.

814

Upon the trial, a verdict in favor of defendants was returned. The

trial court initially instructed the jury to hold plaintiff to a lesser degree
of proof if it found his amnesia to be genuine. Upon defendants'
objection, however, the charge was withdrawn, plaintiff taking
exception.
There should be a reversal and a new trial in order that the jury may
consider whether plaintiff should be held to a lesser degree of proof.
 Robert Schechter and his companion, Alice Stone, were involved in
a motorboat collision on the night of August 25, 1964. Both were then
14 years old. They had left a party at a lakeshore home and, with
Robert operating his father's boat, had begun motoring across the
lake. Alice sat in the front seat, to the left of Robert. Alice testified that
the night was clear and moonlit, that the boat's lights were on, and
that Robert was taking a straight course at about four miles an hour.
They had not gone far, Alice continued, when she looked to her right
and saw a motorboat some 50 feet distant heading towards them, its
bow out of water. About one second later, she estimated, the other
boat, operated by defendant Robert Klanfer, struck the Schechter
boat near the driver's seat. Alice estimated that the Klanfer boat was
traveling at 30 miles an hour. The nighttime speed limit on the lake
was 10 miles an hour. The defendants disputed Alice's testimony as
to the speed of their boat and the lighting of the Schechter boat.
Robert testified but not as to the accident, claiming that, as a result of
the collision, he had no memory of the events. He had sustained a
fractured skull, fractured arm, fractured jaw, and other physical
injuries. He had been comatose for several days. Plaintiff's medical
expert testified that Robert had suffered severe emotional shock and
psychiatric change, including amnesia, due to brain damage.
The rule providing when a plaintiff may prevail on a lesser degree of
proof was best crystallized in Noseworthy v. City of New York, 80
N.E.2d 744. The court there held that “in a death case a plaintiff is not
held to as high a degree of proof of the cause of action as where an
injured plaintiff can himself describe the occurrence.” Moreover,
despite some contrary notions, the rule has been applied in wrongful
death cases where the plaintiff has called an eyewitness. . . .
The Committee on Pattern Jury Instruction of the Association of
Supreme Court Justices recommends, in a pattern instruction, that
the amnesiac plaintiff be held to a lesser degree of proof if the jury is
satisfied from medical and other evidence that plaintiff is suffering
from loss of memory and that the injuries plaintiff incurred were a
substantial factor in causing plaintiff's loss of memory (PJI 1:62).2 In
a thoughtful and well-documented comment to the instruction, the
committee explains: “The limitation that the accident must have been
a substantial factor in causing the loss of memory is predicated on
the rationale of the Noseworthy case, which is not merely plaintiff's
inability to present proof, but the unfairness of allowing the defendant,
who has knowledge of the facts, to benefit by standing mute when
plaintiff's inability results from defendant's acts.” (1 N.Y. PJI 36,
emphasis in original).

815

Of course, an amnesiac plaintiff can no more “describe the

occurrence” that produced his injury than can a plaintiff's decedent, a
toddler or an imbecile. Other States, faced with an analogous choice
of extending to amnesiac plaintiffs a “presumption of due care”
normally accorded plaintiffs' decedents, have reasoned that the
amnesiac's inability to testify entitles him to the preferential rule.
The rule even as applied to amnesiacs does not, however, shift the
burden of proof or eliminate the need for plaintiffs to introduce
evidence of a prima facie case. The jury must rest its findings on
some evidence to establish negligence and also the absence of
contributory negligence. In this case, however, plaintiff did introduce
evidence to make out a prima facie case, so that there was an
opportunity to apply the lesser burden of persuasion. If the jury had
been told to apply a lesser burden of persuasion, it could have and,
therefore, might have found plaintiff free from contributory negligence.
The circumstances testified to by Alice Stone that Robert drove the
boat in a straight line, at a speed of four miles an hour, and with the
boat lights on, were relevant on the issue of contributory negligence.
It also could have found defendants negligent upon Alice's testimony
of the speed and course of the Klanfer boat.
The danger is, of course, that amnesia is easily feigned. The
dangers may be ameliorated. Plaintiff has the burden of proof on the
issue of amnesia as on other issues. A jury should be instructed that
before the lesser burden of persuasion is applied, because of the
danger of shamming, they must be satisfied that the evidence of
amnesia is clear and convincing, supported by the objective nature
and extent of any other physical injuries sustained, and that the
amnesia was clearly a result of the accident.
The above is undoubtedly a more severe test than that suggested
by the Pattern Jury Instructions. Yet it would seem a small price to
pay for a liberal rule treating amnesiac plaintiffs on a par with the
representatives of decedents in death actions. The reasons for so
treating amnesiacs are similar to those advanced for representatives
of persons silenced in fatal accidents, but the risk and ease of
shamming are measurably greater.
Accordingly, the order of the Appellate Division should be reversed
and a new trial ordered, with costs to abide the event.
Order reversed, etc.

NOTES AND QUESTIONS

1. According to the Schechter court, the plaintiff must present a
prima facie case of negligence in order to be in a position to get the
benefit of the reduced burden of proof rule. What is a prima facie
case? The Schechter court does not tell us, but usually courts use
that term to describe the production burden that a party must meet. If
that is what the court means here, and it seems likely that it is, the
plaintiff must introduce enough evidence of the defendant's
negligence to raise a jury issue. In other words, in holding that the
plaintiff had presented a prima facie case, the court, in effect, was
saying that the evidence of the defendant's negligence resembled
Case 2 in Diagram 10-1 on page 806, supra.

816

2. Could or should the Schechter court have been more precise in

articulating how amnesia could affect the plaintiff's burden of proof?
The court stated that in the case of amnesia caused by the defendant
the plaintiff “is not held to as a high a degree of proof as would be a
plaintiff who can himself describe the occurrence,” and the court also
stated that “the rule even as applied to amnesiacs does not . . . shift
the burden of proof.” If the plaintiff's ordinary burden of persuasion is
just slightly greater than 50 percent, and if that burden is lessened,
how is the burden of persuasion not shifted to the defendant?
3. What justification is there for giving a reduced burden of
persuasion to a plaintiff with amnesia?
4. If burdens of persuasion operate as they are intended to operate,
precisely what cases would come out differently under a rule that
allocated the preponderance burden of persuasion to one party
instead of the other? Is not the answer only those cases in which the
jury is in equipoise and is unable to say whether the burden of
persuasion is met or not? How large a class of cases do you think
that is likely to be? Changing a burden of persuasion from
preponderance to clear and convincing evidence, by contrast, is more
likely to affect the results in cases, again assuming burdens of
persuasion operate roughly as intended.
Consider the implication of these observations in the context of
Schechter. If holding the plaintiff with amnesia to a lower standard of
persuasion than other plaintiffs means that the plaintiff's burden is
reduced slightly from the preponderance standard, the effect is to
make the plaintiff's burden something less than 50-plus percent—say,
49 percent. This is the equivalent of saying that the burden of
persuasion shifts to the defendant to persuade the jury by a 51-plus
percent preponderance that the defendant is not negligent. Thus,
contrary to the court's assertion, the amnesia rule does shift the
burden of proof to the defendant (unless, of the course, the fact finder
understands preponderance to mean more than 50-plus percent).
Such a shift, however, is unlikely to affect many cases. The practical
impact of the amnesia rule lies not in the question whether there is a
shifting of the preponderance burden but rather in how much of a shift
the amnesia rule creates.
5. In Santosky v. Kramer, 455 U.S. 745, 768-770 (1982), the
Supreme Court decided that misconduct justifying the termination of a
person's parental rights must be proven by clear and convincing
evidence. The Court also explained that the applicable standard of
proof will depend on the general type of case at issue, and is not
something to be allocated on a case-by-case basis, because “litigants
and the factfinder must know at the outset of a given proceeding how
the risk of error will be allocated.” Id. at 757. Is Schechter consistent
with this principle?
6. There are statements in many cases that the “burden of proof
never shifts; it always rests with the party to whom it was originally
allocated.” For the most part this statement is true, but it is more
misleading than helpful. Factfinders generally tend to give a party's
evidence more credence when her opponent provides no
counterevidence. As a practical matter at least, this means that the
opponent bears the burden of countering the proponent's evidence.
This informal burden is often identified as “tactical.” Also reconsider
Diagram 10-1, page 806, supra. When a party has demonstrated
such a strong case that no reasonable person could disagree that the
party

817

deserves on the evidence so far produced to win, a judgment will be

entered unless the adversary produces more evidence that lowers
the probabilities to a point where reasonable people could disagree.
In such a case, the adversary bears a functional burden of
production; the adversary can produce evidence or lose. In this
sense, the “burden of production” can shift numerous times during the
course of a trial.
7. There are various policies that could be pursued through different
choices concerning burdens of persuasion. We have mentioned
some, such as error equalization over parties. Others include the
reduction of erroneous determinations of liability, reduction of total
dollars wrongfully allocated as a result of trial, and the minimization of
large mistakes. Different burden of proof rules may serve these
various policies better than others. Alex Stein, Foundations of
Evidence Law 143-153 (2005).

KEY POINTS
 1. Burden of persuasion is a rule of decision that requires a party
to persuade the factfinder of a proposition to a specified
degree of certainty.
2. The usual burden of persuasion in civil cases is a
“preponderance of the evidence,” which is generally
understood as meaning “more likely true than not”; in some
special categories of civil cases, the burden of persuasion is
“clear and convincing evidence.”
3. From the perspective of the parties to the action, the burden of
persuasion is relative: To say that the plaintiff must prove some
proposition to be true by greater than 50 percent in order to
win is to say that the defendant must prove that proposition to
be false by no less than 50 percent.
4. Each party must plead and prove her own case. The plaintiff
must plead and subsequently prove all the facts underlying her
cause of action, as defined by substantive law. The defendant,
in turn, must plead and subsequently prove all the facts
underlying his affirmative defenses, as defined by substantive
law. Hence, the burden of persuasion usually tracks the
burdens of pleading and production: The party who has the
burdens of pleading and production on the matter bears the
burden of persuasion as well.

2. Judicial Summary and Comment in Civil Cases

At common law, trial judges had the power to sum up the evidence at
the close of the trial and to comment on its implications. The power to
sum up the evidence allows the judge to review for the jury all the
evidence that the parties presented. The value of summary is that it
gives the jury an impartial review of the evidence. The power to
comment on the evidence goes considerably further, though. It
permits the court to express its own views on the implications of the
evidence, thus injecting the judge's personal opinion into the litigation.
Many states therefore have outlawed the summary and comment
practice by statute or on constitutional grounds.
818
a. The Advantages and Disadvantages of Permitting Judicial Summary and
Comment
The attractiveness of comment and summary is that it may inject
into the trial process a disinterested element that is valuable to the
jury in its appraisal of the evidence. To the extent one believes that
there is such a thing as a “disinterested observer,” and to the extent
one distinguishes the “evidence” presented at trial from “inferences”
one draws from the evidence, one may be convinced that summary
and comment are laudable features of trials. Both of these points
have another side to them, however.
Trial judges certainly are disinterested in some respects, but they,
like the rest of us, have their own way of looking at things that
undoubtedly affects both what they observe and retain as well as
what inferences they draw from evidence. Reconsider the discussion
of relevancy in Chapter Three. Factfinders evaluate evidence in the
context of their belief systems—the way they look at the world.
Suppose, for example, that a person returns home one night and
before entering the house wonders if her husband is at home. She
notices that the evening paper is not on the doorstep and that the
deadbolt on the front door is unlocked. Moreover, she knows from
prior experience that when her husband returns home he invariably
picks up the paper and leaves the deadbolt unlocked after entering
the house. She also knows that she has a reliable paper delivery
service. By comparing what she observes—no newspaper and
deadbolt unlocked—she can infer that her spouse has already arrived
home.
Of course, the inference she has drawn may be erroneous. It is
possible, for example, that the paper blew away or was not delivered
that day and that she or her husband inadvertently left the deadbolt
unlocked in the morning. These matters, too, might be considered in
light of observations made at the time, which would also be compared
to previous experience. Is it a windy day? What happens to the paper
on such a day? How often is the deadbolt inadvertently unlocked?
The process of inference, in short, requires that evidence be
compared to previous experience. That is what jurors do collectively
when they consider evidence, and indeed it explains in large measure
why we cherish the jury system. In deciding the facts of a case, we
want a representative mix of the population to bring their differing
views to bear on the question of what inferences may be drawn from
evidence and what generalizations about the world can and cannot
go into factfinding.
This inevitable reliance on personal experience in factfinding
explains in large measure the resistance to judicial comment on the
evidence, and to some extent summary as well. Judges commenting
on the implications of evidence are, in a very real sense, commenting
on their previous experience, and the injection of their previous
experience into the factfinding process may have an undesirable
influence. Trial judges, like all of us, have individual biases and
prejudices that may affect how they summarize or comment on the
evidence. In addition, there may be a kind of group bias stemming
from the common, not particularly diverse backgrounds that judges to
a substantial extent still share. Judges as a class tend to be well
educated, educated in a similar manner, economically comfortable,
and accustomed to respect in the community. In addition, judges still
tend to be predominantly white and male and from middle- or upper-
class backgrounds. Any small and cohesive group—such as trial
judges were, and probably still are—tends to share beliefs and
attitudes that may

819

affect how they perceive evidence as well as what inferences they

draw from that evidence. Allowing judges to summarize and comment
on the evidence permits their beliefs and attitudes to creep into the
factfinding process, skewing it in favor of the interests of this
particular elite group. See Dan M. Kahan et. al, Whose Eyes Are You
Going to Believe? Scott v. Harris and the Perils of Cognitive
Illiberalism, 122 Harv. L. Rev. 837 (2009).
b. The Criteria for Evaluating Judicial Summary and Comment
 In federal courts, summary and comment are appropriate “to assist
[the jury] in arriving at a just conclusion.” Vicksburg & M.R.R. v.
Putnam, 118 U.S. 545, 553 (1886). The difficulty is that the criteria for
determining what properly assists a jury—and what goes too far—are
not clear.
Consider Nunley v. Pettway Oil Co., 346 F.2d 95 (6th Cir. 1965),
where the jury was unable to decide if the plaintiff had been an invitee
or a licensee. In order to encourage the jury to break the impasse, the
judge gave the jury the following instruction during a break from
deliberations:
Now, the jury of course is the sole and exclusive judge of the facts in this lawsuit. It is
appropriate that the court in an effort to be possibly of some help to the jury may
comment upon the evidence. I refrain from doing that and have refrained until this time
from doing it in this case. However, in an effort to be of some possible assistance to you
I think that I should under these circumstances make some comment upon the evidence
upon this issue of invitee-licensee. I want you to understand, however, that in making
these comments that you are not in any degree, in any respect, obligated to receive or
accept or agree with what I may say. It is your duty to accept what I say with regard to
the law in the case, but it is not your duty to accept any comment that I may make or any
evaluation that I make or conclusion that I might reach on the evidence. That is solely
your responsibility and solely your duty. But, with that understanding, it is the opinion of
the court in this case that, from all the evidence upon the issue of invitee or licensee,
that the evidence will establish that at the time and place of the accident the plaintiff was
a licensee and not an invitee. Now, I say that just for the purpose, as I say, of possibly
being of some help to you, but I want you to understand that making that comment you
are not obligated whatsoever to accept that comment as your comment or as your
opinion in the case, because it is your job and your responsibility to resolve that issue. I
only make that with the thought and the hope that it may be of some possible assistance
to you. At any rate, I want to ask you once again to retire and consider your verdict and
see if you cannot come to some agreement, some verdict that will reflect the views of all
of the jurors. Have respect for the views of your fellow jurors. If you find there are jurors
that have different views from you, don't hesitate to change your mind if you should be
persuaded by reason and logic to accept a different view. Attempt if you can in good
conscience to arrive at a unanimous verdict. After you have considered the views of all
others you shouldn't give up a firm conviction that you have just for the purpose of
arriving at a unanimous verdict, but see if you cannot resolve this issue. Make one more
effort, please. [Id. at 98.]
In reversing a judgment for the defendant, the court of appeals said
that “the trial judge's opinion on the licensee-invitee issue was an
opinion on an ultimate fact

820
question peculiarly for jury consideration and amounted to an
instructed verdict as to defendant. . . .” Id. Do you agree?
c. Standardized Comments
Perhaps in response to restraints on the power to summarize and
comment, a practice of providing “standardized inferences” has
developed. These are instructions that inform the jury that proof of
one fact gives rise to an inference of another fact. Such instructions
come in a variety of forms. For examples, see Longenecker v.
General Motors, 594 F.2d 1283 (9th Cir. 1979) (inference of a defect
from a product failure); Ina Aviation Corp. v. United States, 468 F.
Supp. 695 (E.D.N.Y.), aff'd, 610 F.2d 806 (1st Cir. 1979) (inference
that evidence in a party's control but not produced at trial would have
been unfavorable to that party). For a discussion, see 2 McCormick
on Evidence §342, at 496-497 n.9, 497-498 (Kenneth S. Broun ed.,
6th ed. 2006).
The sources of a standardized inference can be statutory or
common law based. When the source is the common law, the
standardized inference is, in essence, a summary of collected judicial
wisdom with respect to a certain matter. Such a standardized
inference may be preferable to a normal comment on the evidence
because the personal views of the trial judge are relegated to a lesser
role. To some extent the same is true of standardized inferences that
are authorized by statute, except that the source of the inference is
legislative rather than judicial wisdom. On the other hand, because
instructions on standardized inferences typically do not incorporate
references to specific evidence in the case and because they
sometimes contain excessive legal jargon, they may not convey
information to the jury as well as individualized comments. Charles T.
McCormick, Charges on Presumptions and Burdens of Proof, 5 N.C.
L. Rev. 291, 299-301 (1972).
d. The Relationship Between Comments on the Evidence and the Burden of
Persuasion

By commenting on the evidence, the judge puts her thumb on the

scales. When her comment has its intended effect on the jury, it
inevitably has the consequence of shifting the burdens of persuasion
of the parties in the case. Consider, for example, a comment that is
favorable to the plaintiff, who has the persuasion burden of proving
fact X by a preponderance of the evidence. If there were no
comment, the plaintiff in order to prevail would have to introduce
enough evidence to convince the jury that fact X is 50-plus percent
likely to be true; the defendant in order to prevail would have to
convince the jury that there was at least a 50-50 chance that fact X is
untrue. With a comment favorable to the plaintiff, the plaintiff will have
to do less to persuade the jury that fact X is true, and the defendant
will have to do more to persuade the jury that fact X is untrue. For
example, the plaintiff's evidence standing alone may convince the jury
that there is only a 45 percent probability that X is true, but the
evidence along with the comment may convince the jury by a greater
than 50 percent probability that X is true. In such a case, the effect of
the comment is to permit the plaintiff to prevail even though the
plaintiff has introduced evidence to satisfy only a

821

45 percent persuasion burden. The defendant, in order to prevail in

the case, would have had to introduce enough evidence to convince
the jury by a 55-plus percent probability that X was untrue.

KEY POINTS
1. Judicial summary of and comment on the evidence are
permissible in federal courts, but many states prohibit judicial
comment or summary or both.
2. If summary or comment is permissible, an important criterion
for evaluating the propriety of a particular summary or
comment should be its accuracy.
3. Unless a summary or comment merely states the obvious to
the jury, the summary or comment will inevitably be helpful to
 one party and harmful to the other, thereby shifting the parties'
relative burdens of persuasion.

NOTES AND QUESTIONS

1. Reconsider the Schechter case at page 813, supra. Try to
formulate a comment on the evidence that would have roughly the
equivalent effect of the burden-reducing amnesia instruction that the
court approved.
2. Would a comment of the type contemplated in Note 1 be
permissible? If the answer is yes, which device—the comment or the
explicit burden-reducing instruction—is preferable? If the answer is
no, why should it be permissible to reduce the plaintiff's burden of
persuasion in one way but not the other?

3. Presumptions in Civil Cases

Presumption is a term that courts and commentators use to describe
rules that regulate the process of proof by creating a special legal
relationship between one fact, A, a proven basic fact that gives rise to
the presumption, and another fact, B, the presumed fact. For
example, many jurisdictions have a rule that on proof of the fact that a
person has been missing for seven years (fact A), there is a
presumption that the person is dead (fact B). Typically, this rule or
presumption means that proof of fact A (e.g., that a person has not
been heard from in seven years) requires a finding of fact B (e.g., that
the person is dead) unless the party against whom the presumption
operates adequately rebuts fact B.
There almost always will be some inferential relationship between a
presumed fact and the fact that gives rise to the presumption, the
basic fact. For example, under the presumption-of-death, proof of fact
A (not heard from in seven years) provides some inferential support
for fact B (death). Indeed, in some cases a reasonable factfinder may
be warranted in finding fact B on proof only of fact A even if there
were no presumption. The significance of saying that proof of fact A
gives rise to a presumption of fact B is that the presumption connotes
some special legal relationship

822

between the two facts. There is, however, no unique evidentiary

device or concept referred to by the term “presumption.” Rather,
presumption is a label that courts, legislatures, and commentators
attach to a variety of devices that manipulate the process of proof. It
would be possible to describe those manipulations specifically and
directly and to eliminate the term presumption from legal discourse.
Morejon v. Rais Constr. Co., 851 N.E.2d 1143 (N.Y. 2006) (“The
dizzying array of formulations (from mandatory inferences to
permissive presumptions), however, suggests that things would be far
less complicated if we viewed [the issue] without undue emphasis on
labels and pigeonholes.”). Indeed, as the materials throughout this
section imply, such a reform would be desirable.
Presumptions come in different shapes and forms. Some are
irrebuttable or conclusive, and some are rebuttable. Some rebuttable
presumptions affect only the burden of production, and some affect
the burden of persuasion. Some rebuttable presumptions are
mandatory, in the sense that they require a finding of the presumed
fact in the absence of sufficient rebuttal. Other rebuttable
presumptions are permissive inferences. They permit but do not
require a finding of the presumed fact even if there is no rebuttal. The
use of the term “presumption” is therefore often ambiguous, and
when it is not clear from the context which type is being referred to
this ambiguity creates confusion.
As we will explain, presumptions fall into four main types or
categories: (1) conclusive presumptions, (2) production-burden
presumptions, (3) persuasion-burden presumptions, and (4)
permissive presumptions. After discussing examples of these four
types of presumptions, we will explore some further complexities in
presumption analysis. We will then consider and critique the
approach to presumptions in the Federal Rules of Evidence.
 As we begin the consideration of presumptions, you should keep in
mind two issues that affect the operation of presumptions.
First, who has what burden of persuasion with respect to the basic
facts? In other words, in order for the aforementioned presumption of
death (fact B) to come into play, who has what burden of persuasion
with respect to proof that the individual has not been heard from in
seven years (fact A)? The “Who?” part of this question is not
controversial: The person who wishes to take advantage of the
presumption has the burden of establishing the basic facts that give
rise to the presumption. The answer to the “What?” part of the
question is likely to be a preponderance of the evidence, which is the
common, although seldom articulated, standard of proof for basic
facts. There may be instances, however, in which a court sets forth a
higher standard. Cf. Schechter v. Klanfer at page 813, supra (to get
advantage of reduced burden of proof plaintiff must prove amnesia by
clear and convincing evidence).
Second, who decides whether the party wishing to take advantage
of a presumption has satisfied the appropriate burden of persuasion
with respect to the basic facts? Assume, for example, that a woman
wishes to take advantage of the presumption of death (fact B) with
respect to her husband. If there is conflicting evidence about whether
he has been heard from within seven years (fact A), does the judge
decide or does the jury decide that question? We will elaborate on
this issue in the context of our discussion of the different types of
presumptions.

823
a. Irrebuttable or Conclusive Presumptions
Some presumptions are conclusive or irrebuttable. In other words,
once there is proof of fact A, the fact giving rise to the presumption,
fact B, the presumed fact, is conclusively established. The party
against whom the presumption operates is not even allowed to
present evidence of non-B. The Federal Coal Mine Health and Safety
Act of 1969, which entitles totally disabled coal miners to
compensation, creates such an irrebuttable or conclusive
presumption. Upon proof by X-ray or other clinical evidence that a
miner has complicated pneumoconiosis (fact A), the law conclusively
presumes that the miner is totally disabled (fact B) and, therefore,
entitled to compensation. 30 U.S.C. §921(c) (1994). In other words,
when the miner establishes fact A, the miner becomes entitled to
compensation; the mine owner is not permitted to try to prove that the
miner may not in fact be totally disabled (fact B).
A conclusive presumption is nothing more than a somewhat
awkwardly worded substantive rule of law: If the law states that a
plaintiff must prove fact B to prevail and if, on proof of fact A, fact B is
conclusively presumed to exist, the rule of law really is that the
plaintiff will prevail by proving either fact A or fact B. Usery v. Turner
Elkhorn Mining Co., 428 U.S. 1 (1976); Wiehe v. Kissick Constr. Co.,
232 P.3d 866 (Kan. App. 2010) (irrebuttable presumption of
impairment under workers' compensation statute if employee tests
above a specified level for alcohol or drugs).
As long as the classification created by a conclusive presumption is
not so arbitrary or irrational that it raises due process or equal
protection concerns, there is no valid basis for objecting to it. For
example, if, as the Court held in Usery, Congress could have enacted
a statute specifically providing that the two categories of miners were
entitled to compensation, there should be no reason to object to the
statute merely because Congress utilized presumption jargon to
accomplish this objective. On the other hand, if a court were to
conclude that a legislative classification is so arbitrary or irrational
that it is unconstitutional, the classification should be unconstitutional
regardless of whether the legislature used presumption language to
create the categories. In re Adoption of Doe, 2008 WL 5070056 (Fla.
Cir. Ct. Aug. 29, 2008) (irrebuttable presumption that “it is never in the
best interest of any adoptee to be adopted by a homosexual” held
unconstitutional). In short, what should matter is not the manner in
which the legislature chooses to formulate its categories, but rather
whether the categories themselves present constitutional issues.
Because a conclusive presumption is nothing more than a
substantive rule of law, the question whether the facts giving rise to a
conclusive presumption exist is, as it should be, one for the jury to
decide. To put the matter somewhat differently, a conclusive
presumption is nothing more than a somewhat awkward way of
stating that identical legal ramifications follow from two classifications
(fact B, which may be proved without regard to the presumption, and
fact A, which by virtue of the conclusive presumption is legally
indistinguishable from fact B). If the jury is the decision maker with
respect to fact B, the jury should also be the decision maker with
respect to fact A.

824

KEY POINTS
1. A conclusive presumption is a somewhat awkward way of
drafting a substantive rule of law.
2. As long as it is constitutionally permissible to attribute the same
legal consequences to the presumed fact and the fact giving
rise to the conclusive presumption, there should be no reason
for objecting to a conclusive presumption.

PROBLEMS
10.1. Casanova, a life beneficiary, and Linus and Lucy, two
remaindermen of a testamentary trust, seek to accelerate and
thereby terminate the trust. They argue that the class of
remaindermen who are the issue of Casanova has been
effectively closed by reason of a vasectomy performed on
Casanova, which rendered him sterile. The Trustee defends on
the ground that there is in this jurisdiction an irrebuttable
presumption that a man or woman irrespective of his or her
age or physical capacity is conclusively presumed to be
capable of producing children. Moreover, the Trustee argues
the vasectomy may be reversible. The Trustee moves for a
directed verdict. Should it be granted?
10.2. Husband is being sued by Wife for support for a child born to
Wife during the marriage to Husband. The marriage has since
ended in divorce, and Husband defends on the ground that he
and his wife had not had sexual relations for two years before
the birth of the child. Wife asks the trial judge to instruct the
jury on the irrebuttable presumption that a child born during
wedlock is presumed to belong to the husband. Should such
an instruction be given, assuming that the law is as Wife
asserts? Would it make any difference if Husband could prove
beyond any doubt, based on blood test for example, that he is
not the father of the child?
b. Mandatory Rebuttable Presumptions
Mandatory rebuttable presumptions create special burden of proof
rules for designated situations. The particular rationale for a special
burden of proof rule—like the rationales for general allocations of
production and persuasion burdens—is often elusive. Nonetheless, it
is fair to say that in general the purpose for creating special burden of
proof rules is to fine-tune the process of proof in order to advance the
goal of rational and accurate factfinding or other goals related to the
allocation of burdens of proof. See Notes 4 and 7 at pages 816-817.
Because of the complexity and confusion in the analysis of
presumptions, however, the use of presumptions often detracts from
rather than advances these goals.
Mandatory Rebuttable Presumptions That Shift a Burden of
Production. Some presumptions create a mandatory relationship
between fact A, the basic fact, and fact B, the presumed fact, that
affects only the burden of producing evidence.

825

Once a party establishes fact A, there must be finding of fact B

unless the party against whom the presumption operates produces
evidence of non-B. In other words, if the party against whom the
presumption operates fails to produce evidence of the presumed fact,
the party will lose on that fact. If the party meets the production
burden, the presumption has no further impact on the case. Courts
and commentators, following the lead of Professor James Bradley
Thayer, commonly refer to this type of presumption as a “bursting
bubble” presumption. Once the party against whom the presumption
operates produces sufficient evidence, the presumption—the bubble
—disappears or bursts. See James B. Thayer, A Preliminary Treatise
on Evidence at Common Law 336-337 (1898).
Consider a case in which, in the absence of any presumption, the
plaintiff would have to establish that the defendant received a letter in
order to prevail. Assume that there is a mandatory production burden
presumption that on proof of mailing (fact A) receipt of the letter (fact
B) is presumed. In re Yoder Co., 758 F.2d 1114 (6th Cir. 1985); City &
County of Denver v. East Jefferson County Sanitation District, 771
P.2d 16 (Colo. App. 1988); Winkfield v. American Continental
Insurance Co., 110 Ill. App. 2d 156, 249 N.E.2d 174 (1969) (all
dealing with the presumption of receipt on proof of mailing). In order
to take advantage of the presumption, the person in whose favor the
presumption operates must establish that the basic facts exist. Thus,
in our example, to take advantage of the presumption the plaintiff
must establish that the letter was mailed. If the plaintiff fails to do so
and if there is no other evidence of receipt, the plaintiff will lose. If the
plaintiff establishes that the letter was mailed (fact A) and if the
defendant produces no evidence of nonreceipt (non-B), the court will
direct a verdict in favor of the plaintiff on the receipt issue regardless
of the strength or weakness of inference of receipt in the particular
case; the presumption mandates that result. On the other hand, if the
defendant presents counterproof that meets the production burden,
the presumption disappears and the case will proceed without
inferential mandates. Typically, this means that the judge will send the
case to the jury with the instruction that the plaintiff, in order to
prevail, must convince the jury by a preponderance of the evidence
that the defendant received the letter (fact B). In any particular
instance, however, whether the judge should send the matter to the
jury or issue a judgment as a matter of law for one of the parties
should depend on which Case in Diagram 10-1 at page 806, supra,
accurately represents the totality of the evidence. In re Estate of
Wood, 374 Mich. 278, 132 N.W.2d 35 (1965).
As the preceding discussion demonstrates, a mandatory production
burden presumption is in effect a specialized judgment-as-a-matter-
of-law rule. As such, it has two consequences. First, establishing the
basic facts will require the court to render a judgment as a matter of
law on the presumed fact against an opposing party who fails to meet
the production burden mandated by the presumption. Second,
establishing the basic facts protects the party in whose favor the
presumption operates from a judgment as a matter of law, at least
until the opposing party produces counterproof. Since proof of fact A
requires a finding of fact B in the absence of rebuttal, it would be
improper, before rebuttal, to issue a judgment against the person
invoking the mandatory presumption regardless of how weak the
inference from fact A to fact B may be.

826

NOTES AND QUESTIONS

1. Courts rarely focus in detail on how much evidence a party must
produce to burst the bubble of a mandatory production burden
presumption. Courts use phrases like “some evidence” or “any
evidence” or “credible evidence” to describe what the presumption
demands, but whether a party's evidence meets the articulated
standard is seldom an issue. As a general matter, evidence
necessary to rebut a production burden presumption should be no
different from the evidence required to satisfy other production
burdens. The question should be whether the party who has the
production burden has produced enough evidence to create a jury
issue on the nonexistence of the presumed fact. See Diagram 10-1
and accompanying discussion at pages 806-808, supra.
2. Even if there are instances in which special production burden
rules seem appropriate, it is important to note that there is no need to
resort to the rhetoric of presumption to accomplish the desired end.
One can simply and directly allocate the production burden.
 KEY POINTS
1. A mandatory production burden presumption is the equivalent
of a specialized judgment-as-a-matter-of-law rule.
2. Once a party establishes facts giving rise to a mandatory
production burden presumption, the presumption requires a
finding of the presumed fact in the absence of any rebuttal of
that fact.
3. Establishing the facts that give rise to a mandatory production
burden presumption also protects a party in whose favor the
presumption works from an opponent's request for a judgment
as a matter of law—at least before any rebuttal of the
presumed fact.

Mandatory Rebuttable Presumptions That Shift the Burden of

Persuasion. Some mandatory rebuttable presumptions shift the
burden of persuasion to the party against whom they operate.
Consider, for example, a case in which the plaintiff wishes to
establish that the defendant, her former husband, is the father of her
child. Normally, the plaintiff as the moving party would have both the
burden of producing sufficient evidence of paternity and the burden of
persuading the factfinder that the defendant was the father. Assume,
though, that there is a mandatory rebuttable presumption in the
jurisdiction that a child born or conceived during a valid marriage
relationship is the child of the husband. Assume further that this
presumption shifts the burden of persuasion to the person against
whom it operates. Cal. Fam. Code §7611. To take advantage of the
presumption the plaintiff will have to establish that she was legally
married (fact A-1) to the defendant (fact A-2) at the time of the child's
conception or birth (fact A-3). If the plaintiff can establish these basic
facts, the factfinder must find that the defendant is the father (fact B)
unless the defendant rebuts the presumption. One possible strategy
for the defendant in this case is to attack one
827

or more of the basic facts: A-1, A-2, or A-3. If the plaintiff cannot
establish by the requisite degree of proof—probably a preponderance
of the evidence—that they exist, there is no presumption in the case,
and the plaintiff retains the burden of persuading the factfinder that
the defendant is the father of the child. (Even if there were doubts
about whether the child was born or conceived during the marriage
relationship, the plaintiff may be able to establish with a DNA test or
other evidence that the defendant is probably the father.) Another, not
mutually exclusive, strategy for the defendant is to attack the
presumed fact, paternity, directly. For example, the defendant might
present witnesses to testify that he was out of the country during the
possible time of conception and, therefore, could not be the father. If
the plaintiff can establish facts A-1, A-2, and A-3, the reasonable
inference of paternity that one can draw from these facts is
sufficiently strong, without regard to the presumption, to permit the
factfinder to find paternity. Regardless of the strength of this
inference, however, the mandatory persuasion burden presumption
means, at a minimum, that the defendant must persuade the jury by a
preponderance of the evidence that he is not the father of the child.
A persuasion burden presumption has the same effect as an
affirmative defense, the term used to describe the direct placement of
a persuasion burden on a defendant. Fed. R. Civ. P. 8(c) (listing a
number of affirmative defenses that must be proven by defendants).
Consider, for example, the persuasion burden presumption of
paternity that arises on proof of conception during a valid marriage.
To say that there is a “presumption of paternity that allocates or shifts
the burden of persuasion” to the defendant and that there is an
“affirmative defense of nonpaternity” that requires the defendant to
prove that fact is to make functionally identical statements. There is
nothing in the concept of a presumption as such that facilitates the
allocation of a burden of persuasion. Rather, presumptions that shift
the burden of persuasion are simply affirmative defenses created for
the same reasons of policy that generally inform the lawmaker's
decision to allocate burdens of persuasion.
 NOTES AND QUESTIONS
1. What is the justification for allocating the burden of persuasion to
a (former) husband in a paternity action?
2. As we pointed out in our initial discussion of burdens of
persuasion, shifting the preponderance burden from one party to
another may not have an impact on very many cases.

KEY POINTS
1. A mandatory persuasion-burden presumption requires the
party against whom the presumption operates to carry the
burden of persuasion on the issue.
2. A mandatory persuasion-burden presumption is the functional
equivalent of an affirmative defense.

828

Decisionmaking with Respect to the Facts Giving Rise to

Mandatory Presumptions. Despite the functional equivalence of
mandatory rebuttable presumptions and direct allocations of burdens
of proof, courts tend to implement the two sets of rules differently. If
there is a question about who has the “normal” burden of proof with
respect to an issue, there is general agreement that the question is
one for the court or legislature to determine. This question is
categorized as a “question of law.” By contrast, when the burden of
proof rule depends on proof of some particular fact, which is of
course always the situation with presumptions, the question whether
that basic fact exists typically is one for the jury.
Revisit our “mailing and receipt” example. If the defendant produces
sufficient evidence of nonreceipt to satisfy the production burden
created by the presumption, there is no need to deal further with the
presumption; the bubble has burst. Indeed, it is not necessary even to
consider whether the presumption arose in the first place. When the
defendant offers no evidence of nonreceipt, however, it is necessary
to determine whether the plaintiff should have the benefit of the
presumption. In any such case, the jury typically decides whether the
plaintiff has established the basic fact of mailing (fact A), which gives
rise to the presumption of receipt (fact B). Subsequently, absent
evidence of receipt other than the plaintiff's proof of mailing, the court
would instruct the jury that it must find for the plaintiff if it finds that the
plaintiff mailed the letter.

KEY POINT
Typically, the jury decides whether the facts giving rise to a mandatory rebuttable
presumption exist.

PROBLEMS
10.3. Plaintiff sues Defendant and one element of Plaintiff's claim is
fact B. In the absence of any presumption, Plaintiff would have
to prove fact B by a preponderance of the evidence. There is a
presumption in the jurisdiction that if fact A is proven, fact B is
presumed to exist. It is a mandatory production burden
presumption.
Assume that Plaintiff introduces no direct evidence of fact B,
but that Plaintiff introduces sufficient evidence of fact A to
create a jury issue over whether fact A exists. Assume further
that the inference from fact A to fact B is sufficiently strong that
if fact A exists, a reasonable juror could find that fact B exists,
too. Finally, assume that there is nothing in the evidence or
common experience that would permit a finding of fact B in the
absence of fact A.
(a) At the close of Plaintiff's case, both parties move for
judgment as a matter of law. What result?
(b) Assume that there is no motion for judgment as a matter
of law at the close of Plaintiff's case and that Defendant
 rests without presenting any evidence.

829

Now both parties move for judgment as a matter of law.

Should either party's motion be granted? If not, what
should the judge tell the jury about how to decide the
case? In answering this question assume alternatively (1)
that Plaintiff's evidence of fact A is so overwhelming that
no reasonable person could disbelieve it and (2) that
reasonable people could disagree about the existence of
fact A.
(c) Assume that Defendant introduces evidence of only non-
A before resting and that reasonable people viewing all of
the evidence could disagree about the truth of both fact A
and fact B. What should the judge tell the jury about how
to decide the case?
(d) Assume that Defendant introduces evidence of only non-
B before resting and that reasonable people could
disagree about the truth of both fact A and fact B. What
should the judge tell the jury about how to decide the
case?
(e) Assume that Defendant introduces evidence of both non-
A and non-B before resting and that reasonable people
could disagree about the truth of both fact A and fact B.
What should the judge tell the jury about how to decide
the case?
10.4. Assume the same facts and alternative possibilities as in
Problem 10.3 except now the mandatory rebuttable
presumption is one that places the burden of persuasion on the
party against whom it operates.
c. Permissive or “Weak” Presumptions
Sometimes the law creates a special relationship between two facts
—fact A, the basic fact, and fact B, the presumed fact—but makes
that relationship discretionary for the jury to find out, rather than
mandatory. In other words, upon proof of fact A the factfinder may,
but is not required to, find fact B even when the opponent makes no
effort to rebut fact B. Courts and commentators refer to these
permissive relationships variously as “permissive presumptions,”
“weak presumptions,” or “permissive inferences.”
The most common permissive presumption is res ipsa loquitur.
Although the content and effect of res ipsa loquitur vary somewhat
among the jurisdictions, a fair statement of the doctrine is this: If the
plaintiff proves that she was injured in an event that normally does
not occur without negligence (fact A-1), that the defendant was in
exclusive control of the instrumentality that caused the plaintiff's injury
(fact A-2), and that the plaintiff was not contributorily negligent (fact
A-3), the factfinder may (but is not required to) find that the defendant
negligently caused the plaintiff's injury (fact B). Although facts A-1, A-
2, and A-3 standing alone create a fairly strong inference of fact B
without regard to the res ipsa doctrine, the significance of res ipsa is
twofold. First, the judge will tell the jury that they may, but are not
obligated to, deduce the defendant's negligence from facts A-1, A-2,
and A-3, if they find that the plaintiff proved these facts by a
preponderance of the evidence. The res ipsa presumption thus
creates a standardized judicial comment on the plaintiff's
circumstantial evidence of negligence. Second, and perhaps more
important, the res ipsa presumption helps the plaintiff's suit survive
the defendant's motion to dismiss it summarily. When the

830

plaintiff makes a prima facie showing that facts A-1, A-2, and A-3
are present, the judge must move the case to the jury. See Ariel Porat
& Alex Stein, Tort Liability Under Uncertainty 84-100 (2001).

KEY POINTS
 1. Permissive presumptions—sometimes referred to as “weak”
presumptions or permissive inferences—are the equivalent of
standardized comments on the evidence.
2. Permissive presumptions also help the plaintiff make a prima
facie case against the defendant, thus obligating the judge to
move the case to the jury rather than dismiss it summarily.

NOTES AND QUESTIONS

1. The Supreme Court has recognized that legislatures have wide
latitude in allocating civil burdens of proof as they like. Lavine v.
Milne, 424 U.S. 577, 585 (1976). Thus, one would think that the use
of a presumption to allocate a burden of production or burden of
persuasion should present no special difficulty. Nonetheless, in
dealing with rebuttable presumptions, the Supreme Court has
stressed the need for a rational relationship between the basic fact
that gives rise to a presumption and the presumed fact. Consider, for
example, Usery v. Turner Elkhorn Mining Co., 428 U.S. 1 (1976),
where the Court upheld several production burden presumptions set
forth in the Federal Coal Mine Health and Safety Act of 1969. One of
the presumptions provided that upon proof that a coal miner with ten
years of employment in the mines had pneumoconiosis, it was
presumed that the miner contracted the disease from employment.
According to the Court:
We have consistently tested presumptions arising in civil statutes such as this, involving
matters of economic regulation, against the standard articulated in Mobile, J. & K.C.R.
Co. v. Turnipseed, 219 U.S. 35, 43 (1910):

That a legislative presumption of one fact from evidence of another may not constitute
a denial of due process of law or a denial of the equal protection of the law it is only
essential that there shall be some rational connection between the fact proved and
the ultimate fact presumed, and that the inference of one fact from proof of another
shall not be so unreasonable as to be a purely arbitrary mandate.
Moreover, as we have recognized:

The process of making the determination of rationality is, by its nature, highly
empirical, and in matters not within specialized judicial competence or completely
 commonplace, significant weight should be accorded the capacity of Congress to
amass the stuff of actual experience and cull conclusions from it. United States v.
Gainey, 380 U.S. 63, 67 (1965).
Judged by these standards the . . . [presumption is] constitutionality valid . . . . [I]t is
agreed here that pneumoconiosis is caused by breathing coal dust, and that the
likelihood of a miner's developing the disease rests upon both the concentration of dust
to

831
which he was exposed and the duration of his exposure. Against this scientific
background, it was not beyond Congress' authority to refer to exposure factors in
establishing a presumption that throws the burden of going forward on the operators.
And in view of the medical evidence before Congress indicating the noticeable incidence
of pneumoconiosis in cases of miners with ten years' employment in the mines, we
cannot say that it was “purely arbitrary” for Congress to select the ten-year figure as a
point of reference for these presumptions. No greater mathematical precision is
required. [428 U.S. at 28-29.]
Perhaps an allocation of a burden of proof—whether by way of
presumption or otherwise—could be so arbitrary or unreasonable as
to raise a constitutional issue. See, for example, Western & A.R. Co.
v. Henderson, 279 U.S. 639, 642-644 (1929) (holding Georgia Civil
Code provision “A railroad company shall be liable for any damages
done to persons, stock, or other property by the running of the
locomotives, or cars, or other machinery of such company, or for
damage done by any person in the employment and service of such
company, unless the company shall make it appear that their agents
have exercised all ordinary and reasonable care and diligence, the
presumption in all cases being against the company” unreasonable
and arbitrary contrary to the Due Process Clause of the Fourteenth
Amendment).
If the implications of Lavine are correct, however, Congress
seemingly could enact—without regard to any medical evidence—a
compensation scheme for coal miners that did not mention
presumptions that placed on coal mine operators the burden of
coming forward with evidence that a miner's pneumoconiosis was not
contracted during employment. If that is correct, why is the Court
concerned, as it was in Usery, about the empirical relationship
between the proven and presumed facts when Congress uses
presumption language to allocate the burden of production?
2. Compare Usery with the following passage from Lavine, supra. In
Lavine, the Court considered the constitutionality of a statute that
“deemed” persons applying for welfare within 75 days after voluntarily
terminating their employment or reducing their earning capacity to
have done so “for the purpose of qualifying for such assistance or a
larger amount thereof, in the absence of evidence to the contrary. . . .
N.Y. Soc. Serv. Law §131(11)”:
Although the District Court found this [provision] to be an unconstitutional “rebuttable
presumption,” the sole purpose of the provision is to indicate that, as with other eligibility
requirements, the applicant rather than the State must establish that he did not leave
employment for the purpose of qualifying for benefits. The provision carries with it no
procedural consequence; it shifts to the applicant neither the burden of going forward
nor the burden of proof, for he appears to carry the burden from the outset.
The offending sentence could be interpreted as a rather circumlocutory direction to
welfare authorities to employ a standardized inference that if the Home Relief applicant
supplies no information on the issue, he will be presumed to have quit his job to obtain
welfare benefits. However, such an instruction would be superfluous for the obvious
reason that the failure of an applicant to prove an essential element of eligibility will
always result in a nonsuit. The only “rebuttable presumption”—if, indeed, it can be so
called—at work here is the normal assumption that an applicant is not entitled to
benefits unless and until he proves his eligibility.

832
Despite the rebuttable presumption aura that the second sentence of §131(11)
radiates, it merely makes absolutely clear the fact that the applicant bears the burden of
proof on this issue, as he does on all others. And since appellees do not object to the
substantive requirement that Home Relief applicants must be free of the impermissible
benefit-seeking motive, their underlying complaint may be that the burden of proof on
this issue has been unfairly placed on welfare applicants rather than on the State [a
complaint that the Court rejected]. 424 U.S. at 583-85.
Note that the Court said that there was no “procedural
consequence,” as though it is one thing to structure burdens of proof
before any evidence is heard, and another to provide for burdens of
proof to shift after evidence is heard. Can you make any sense out of
that distinction?
3. In St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993), a racial
discrimination case brought under Title VII of the Federal Civil Rights
Act of 1964, the Supreme Court elaborated on the nature of a
rebuttable presumption that it had created to help resolve
discrimination claims. The Hicks Court began with a description of the
prior law:
With the goal of “progressively . . . sharpening the inquiry into the elusive factual
question of intentional discrimination,” Texas Dept. of Community Affairs v. Burdine, 450
U.S. 248, 255 n.8 (1981), our opinion in McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973), established an allocation of the burden of production and an order for the
presentation of proof in Title VII discriminatory-treatment cases. The plaintiff in such
case, we said, must first establish, by a preponderance of the evidence, a “prima facie”
case of racial discrimination . . . .
. . . “[E]stablishment of the prima facie case in effect creates a presumption that the
employer unlawfully discriminated against the employee.” To establish a “presumption”
is to say that a finding of the predicate fact (here, the prima facie case) produces “a
required conclusion in the absence of explanation” (here, the finding of unlawful
discrimination). Thus, the McDonnell Douglas presumption places upon the defendant
the burden of producing an explanation to rebut the prima facie case—i.e., the burden of
“producing evidence” that the adverse employment actions were taken “for a legitimate,
nondiscriminatory reason.” 509 U.S. at 506-507.
There was no dispute in Hicks that the defendant had established a
prima facie case by proving “(1) that he is black, (2) that he was
qualified for the position of shift commander, (3) that he was demoted
from that position and ultimately discharged, and (4) that the position
remained open and was ultimately filled by a white man.” Id. at 506.
There was also no dispute that upon adequate rebuttal the plaintiff
retained the burden of persuasion. The issue involved the adequacy
of the defendant's rebuttal:
The District Court, acting as trier of fact in this bench trial, found that the reasons
petitioners gave [severity and accumulation of rule violations] were not the real reasons
for respondent's demotion and discharge. . . . It nonetheless held that respondent had
failed to carry his ultimate burden of proving that his race was the determining factor in
petitioners' decision first to demote and then to dismiss him. In short, the District Court
concluded that “although [respondent] has proven the existence of a crusade to
terminate him, he has not proven that the crusade was racially rather than personally
motivated.” The Court of Appeals set this determination aside on the ground that “once
[respondent] proved all of [petitioners'] proffered reasons for the adverse

833
employment actions to be pretextual, [respondent] was entitled to a judgment as a
matter of law. Id. at 508.
A majority of the Supreme Court, in an opinion by Justice Scalia,
agreed with the district court and reversed the judgment of the court
of appeals. Justice Souter, in a dissent joined by Justices White,
Blackmun, and Stevens, agreed with the court of appeals.
4. Neither opinion in Hicks is right or wrong as far as presumptions
in the abstract are concerned. Presumption, after all, is only a term
used to describe various rules that modify or fine-tune general burden
of proof rules. Once the plaintiff establishes a prima facie case, it is
analytically coherent, as the majority holds, to have a burden of proof
rule that merely requires the defendant to come forward with some
evidence of nondiscrimination and that has no other impact on the
case. Similarly, it is analytically coherent to have a burden of proof
rule that, on proof of a prima facie case, treats the defendant's
rejected reasons as the equivalent of failing to produce evidence.
This latter approach, as the Hicks dissent points out, has the effect of
focusing the inquiry on the legitimacy of the defendant's reasons. The
plaintiff's burden of persuasion, once the prima facie case is
established, is to show the falsity of the defendant's proffered
reasons. The ultimate question should be which burden of proof rule
better serves the objectives of Title VII of the Civil Rights Act.
5. In defense of his position that offering disbelieved reasons was
adequate to rebut the presumption in Hicks Justice Scalia wrote:
We have no authority to impose liability upon an employer for alleged discriminatory
employment practices unless an appropriate factfinder determines, according to proper
procedures, that the employer has unlawfully discriminated. We may, according to
traditional practice, establish certain modes and orders of proof, including an initial
rebuttable presumption of the sort . . . [that we hold applies in this case]. But nothing in
law would permit us to substitute for the required finding that the employer's action was
the product of unlawful discrimination, the much different (and much lesser) finding that
the employer's explanation of its action was not believable. Id. at 514-515.
If the Court can, as the Hicks majority conceded, hold the
nonresponding employer liable regardless of how weakly the
plaintiff's prima facie case may suggest discrimination, why should
the Court not be able to require that the employer's explanation be
believable? Indeed, is it not true, as the dissent maintained, that the
majority's approach substantially undermines the purpose for placing
a production burden on the employer in the first place?
 6. In Reeves v. Sanderson Plumbing Prods, Inc., 530 U.S. 133
(2000), the Supreme Court again addressed the relationship between
production burdens and the burden of persuasion in Title VII cases.
The jury returned a verdict in favor of the plaintiff on his age
discrimination claim after the plaintiff proved a prima facie case and
offered sufficient evidence that explanations the defendant produced
in response were “pretextual” (i.e., not the real reasons for its conduct
toward the plaintiff). The defendant argued that this was insufficient
evidence to get to a jury and that it was entitled to judgment as a
matter of law. In other words, the defendant argued that the plaintiff—
who bore the burden of persuasion—needed additional evidence to
meet its burden of production. The Supreme Court disagreed. While
noting that the plaintiff did have

834

additional evidence, the Court explained that in Title VII cases proof
of a prima facie case, along with disproving the defendant's proffered
explanations, may be sufficient evidence from which a reasonable
jury could find for the plaintiff.
d. The Federal Rules Approach to Presumptions
Congress attempted to deal with the problem of presumptions in
FRE 301, which provides that the effect of a presumption is to place a
burden of production on the party against whom the presumption
operates:
In a civil case, unless a federal statute or these rules provide otherwise, the party
against whom a presumption is directed has the burden of producing evidence to rebut
the presumption. But this rule does not shift the burden of persuasion, which remains on
the party who had it originally.

The exception for what is otherwise provided in “these rules” is an

apparent cross-reference to FRE 302:
In a civil case, state law governs the effect of a presumption regarding a claim or
defense for which state law supplies the rule of decision.
For similar deferrals to state law, see FRE 501 (privileges) and FRE
601 (competency). These deferrals originate from the Erie doctrine,
which holds that in diversity cases procedures will be governed by
federal law, but issues that are substantive (privileges and
competency) or outcome-determinative (presumptions and burdens
of proof) will be decided by applicable state law. Erie Railroad Co. v.
Tompkins, 304 U.S. 64 (1938).
Despite the seemingly straightforward language of FRE 301, the
rule is fraught with difficulties. We touch briefly on two of them here.
For a more comprehensive analysis of FRE 301's deficiencies, see
Ronald J. Allen, Presumptions, Inferences and Burdens of Proof in
Federal Civil Actions—An Anatomy of Unnecessary Ambiguity and a
Proposal for Reform, 76 Nw. U. L. Rev. 892 (1982).
The “Federal Statute” Exception. What are the criteria for
determining whether a federal statute “provide[s] otherwise”? Nothing
in the rule or its legislative history specifically addresses this
question. As a result, it is not clear whether, for example, this
category includes presumptions that do not directly shift the burden of
persuasion but that have been interpreted as doing so. Similarly, it is
not clear whether the language extends to all of the variations of
language that Congress has chosen to employ in formulating
evidentiary burdens created by statute. Poncy v. Johnson & Johnson,
460 F. Supp. 795, 803 (D.N.J. 1978) (FRE 301 applies to federal
statute containing provision for a prima facie case).
If FRE 301 does not apply to a wide variety of statutes and is limited
only to those that clearly allocate burdens of production, then it is
superfluous. If, by contrast, it has a wider application, then Congress
has significantly changed federal law in the form of a simple rule of
evidence. Courts that have wanted a presumption to have a greater
effect than merely shifting a production burden have not found FRE
301 to be a constraint. Hood v. Knappton Corp., 986 F.2d 329 (9th
Cir. 1993); American Coal Co. Benefits Review Board, 738 F.2d 387
(10th Cir. 1984).

835

The Relationship Between FRE 301 Presumptions and Other

Means of Allocating Burdens of Proof. FRE 301 does not address
presumptions and their relationships to a judge's authority to allocate
burdens of production and persuasion, to instruct the jury on
inferences, or to comment on the evidence. Yet, as we have seen, the
word presumption is merely a label applied to various manipulations
of these other judicial prerogatives. Any attempt to define the scope
of presumptions without dealing with these related areas was thus
doomed to fail. The dominant judicial response to FRE 301with
regard to these issues has been to ignore it. The Supreme Court has
noted the impotency of FRE 301 in this context. In National Labor
Relations Board v. Transportation Management Corp., 462 U.S. 393
(1983), the Court reviewed a change in NLRB rules that required
employers to bear the burden of persuasion on the issue whether
discharge of an employee was for a permissible reason. The
employer argued that this shift in the burden of persuasion was in
contravention of FRE 301. The Court concluded to the contrary, but in
such a way that demonstrates the insignificance of FRE 301: “The
Rule merely defines the term 'presumption.' It in no way restricts the
authority of a court or an agency to change the customary burdens of
persuasion in a manner that otherwise would be permissible.” Id. at
403 n.7.

KEY POINTS
1. FRE 301 purports to make federal presumptions production-
burden presumptions unless Congress has otherwise
provided.
2. Because of the uncertain scope of the “provide otherwise”
clause, and because FRE 301 fails to address devices other
than statutory presumptions that allocate burdens of proof,
FRE 301 provides little guidance for or constraint on judicial
decision-making.

B. THE PROCESS OF PROOF IN CRIMINAL CASES

The process of proof in criminal cases is similar but not identical to
the process of proof in civil cases. As in civil cases, the law
determines what facts need to be proven in order to establish that a
crime has occurred. The criminal law also possesses virtually the
same rules for the allocation of burdens of proof as in civil cases. The
“plaintiff,” which is the state, must plead and prove the elements of
the crime, and in many jurisdictions there are affirmative defenses
with respect to which defendants bear the burden of production or
persuasion. The primary differences between the civil and criminal
arenas are that the burden of persuasion in criminal cases is proof
beyond reasonable doubt and that as a result of In re Winship, 397
U.S. 358 (1970), the prosecution always carries that burden with
respect to the necessary elements of the offense.
In this section, as with the process of proof in civil cases, we first
discuss the burdens of proof and then discuss comments on the
evidence and presumptions.

836

1. The Burdens of Proof in Criminal Cases

a. The Burden of Persuasion: In re Winship's Mandate of Proof Beyond a
Reasonable Doubt
Because the proof beyond a reasonable doubt rule has been so
uniformly accepted as the standard of proof for criminal cases, the
Supreme Court did not have occasion specifically to address the
question whether due process required that standard of proof until
1975 in In re Winship. Even then, the immediate issue for the Court
was not whether a criminal defendant was entitled to have guilt
proven beyond a reasonable doubt. Rather, Winship was a challenge
to the New York rule utilizing the preponderance standard in juvenile
delinquency cases. The Court affirmed its prior dictum that due
process required the proof beyond a reasonable doubt standard in
adult criminal prosecutions and went on to hold that due process
required the same standard in delinquency adjudications based on
conduct that would be criminal if committed by an adult. According to
the Court:
The requirement that guilt of a criminal charge be established beyond a reasonable
doubt dates at least from our early years as a Nation. The “demand for a higher degree
of persuasion in criminal cases was recurrently expressed from ancient times, [though]
its crystallization into the formula 'beyond a reasonable doubt' seems to have occurred
as late as 1789. It is now accepted in common law jurisdictions as the measure of
persuasion by which the prosecution must convince the trier of all the essential elements
of guilt.” Although virtually unanimous adherence to the reasonable-doubt standard in
common-law jurisdictions may not conclusively establish it as a requirement of due
process, such adherence does “reflect a profound judgment about the way in which law
should be enforced and justice administered.” . . .
The reasonable-doubt standard plays a vital role in the American scheme of criminal
procedure. It is a prime instrument for reducing the risk of convictions resting on factual
error. The standard provides concrete substance for the presumption of innocence—that
bedrock “axiomatic and elementary” principle whose “enforcement lies at the foundation
of the administration of our criminal law.” . . .
The requirement of proof beyond a reasonable doubt has this vital role in our criminal
procedure for cogent reasons. The accused during a criminal prosecution has at stake
interests of immense importance, both because of the possibility that he may lose his
liberty upon conviction and because of the certainty that he would be stigmatized by the
conviction. Accordingly, a society that values the good name and freedom of every
individual should not condemn a man for commission of a crime when there is
reasonable doubt about his guilt. As we said in Speiser v. Randall [357 U.S. 513, 525-26
(1958)]: “There is always in litigation a margin of error, representing error in factfinding,
which both parties must take into account. Where one party has at stake an interest of
transcending value—as a criminal defendant his liberty—this margin of error is reduced
as to him by the process of placing on the other party the burden of . . . persuading the
factfinder at the conclusion of the trial of his guilt beyond a reasonable doubt. Due
process commands that no man shall lose his liberty unless the Government has borne
the burden of . . . convincing the factfinder of his guilt.” To this end, the reasonable-doubt
standard is indispensable, for it “impresses on the trier of fact the necessity of reaching
a subjective state of certitude of the facts in issue.” Dorsen & Rezneck, In re Gault and
the Future of Juvenile Law, 1 Family Law Quarterly, No. 4,

837
pp. 1, 26 (1976).
Moreover, use of the reasonable-doubt standard is indispensable to command the
respect and confidence of the community in applications of the criminal law. It is critical
that the moral force of the criminal law not be diluted by a standard of proof that leaves
people in doubt whether innocent men are being condemned. It is also important in our
free society that every individual going about his ordinary affairs have confidence that
his government cannot adjudge him guilty of a criminal offense without convincing a
proper factfinder of his guilt with utmost certainty.
 Lest there remain any doubt about the constitutional stature of the reasonable-doubt
standard, we explicitly hold that the Due Process Clause protects the accused against
conviction except upon proof beyond a reasonable doubt of every fact necessary to
constitute the crime with which he is charged. [397 U.S. at 362-364 (emphasis added)].

NOTES AND QUESTIONS

1. Despite the wide acceptance and the familiarity of the reasonable
doubt standard, its precise meaning remains elusive. Although the
due process clause requires courts to apply the beyond a reasonable
doubt standard, “the Constitution neither prohibits trial courts from
defining reasonable doubt nor requires them to do so as a matter of
course.” Victor v. Nebraska, 511 U.S. 1, 8 (1994). Consider the
following three attempts to define proof beyond a reasonable doubt:
(a) A reasonable doubt is one that is founded upon a real tangible
substantial basis and not upon mere caprice and conjecture. It
must be such doubt as would give rise to a grave uncertainty,
raised in your mind by reasons of the unsatisfactory character of
the evidence or lack thereof. A reasonable doubt is not a mere
possible doubt. It is an actual substantial doubt. It is a doubt that
a reasonable man can seriously entertain. What is required is
not an absolute or mathematical certainty, but a moral certainty.
(b) A defendant in a criminal action is presumed to be innocent until
the contrary is proved, and in case of a reasonable doubt
whether his guilt is satisfactorily shown, he is entitled to a verdict
of not guilty. This presumption places upon the State the burden
of proving him guilty beyond a reasonable doubt.
Reasonable doubt is defined as follows: It is not a mere
possible doubt; because everything relating to human affairs,
and depending on moral evidence, is open to some possible or
imaginary doubt. It is that state of the case which, after the
entire comparison and consideration of all the evidence, leaves
the minds of the jurors in that condition that they cannot say they
feel an abiding conviction, to a moral certainty, of the truth of the
charge.
(c) The burden is always on the state to prove beyond a reasonable
doubt all of the material elements of the crime charged, and this
burden never shifts.

“Reasonable doubt” is such a doubt as would cause a reasonable

and prudent person, in one of the graver and more important
transactions of life, to pause and hesitate before taking the
represented facts as true and relying and acting thereon.

838

It is such a doubt as will not permit you, after full, fair, and impartial
consideration of all the evidence, to have an abiding conviction, to a
moral certainty, of the guilt of the accused. At the same time, absolute
or mathematical certainty is not required. You may be convinced of
the truth of a fact beyond a reasonable doubt and yet be fully aware
that possibly you may be mistaken. You may find an accused guilty
upon the strong probabilities of the case, provided such probabilities
are strong enough to exclude any doubt of his guilt that is reasonable.
A reasonable doubt is an actual and substantial doubt arising from
the evidence, from the facts or circumstances shown by the evidence,
or from the lack of evidence on the part of the state, as distinguished
from a doubt arising from mere possibility, from bare imagination or
from fanciful conjecture.
In Cage v. Louisiana, 498 U.S. 39 (1990) (per curiam), the Supreme
Court held that instruction (a) above violated the defendant's right to
due process. The Court concluded that “a reasonable juror could
have interpreted the instruction to allow a finding of guilt based on a
degree of proof below that required by the Due Process Clause.” Id.
at 41. Instructions (b) and (c) were before the Court in Victor v.
Nebraska, supra. The Victor Court distinguished Cage and held that
the instructions were constitutional. What precisely is there in
instructions (b) and (c) that suggests the requirement of a higher
degree of proof than the first instruction? Are any of the instructions
likely to be helpful to the jury? Or is that question impossible to
answer until we have clearer guidance as to what the legal meaning
of “beyond a reasonable doubt” in fact is?
2. Is the notion of reasonable doubt sufficiently difficult to define that
we would be better off not trying to define it for jurors? No, according
to Justice Ginsburg in her separate opinion in Victor:
Because the trial judges in fact defined reasonable doubt in both jury charges we review,
we need not decide whether the Constitution required them to do so. Whether or not the
Constitution so requires, however, the argument for defining the concept is strong. While
judges and lawyers are familiar with the reasonable doubt standard, the words “beyond
a reasonable doubt” are not self-defining for jurors. Several studies of jury behavior have
concluded that “jurors are often confused about the meaning of reasonable doubt,” when
that term is left undefined. Note, Defining Reasonable Doubt, 90 Colum. L. Rev. 1716,
1723 (1990) (citing studies). Thus, even if definitions of reasonable doubt are
necessarily imperfect, the alternative—refusing to define the concept at all—is not
obviously preferable. Cf. Newman, Beyond “Reasonable Doubt,” 68 N.Y.U. L. Rev. 979,
984 (1993) (“I find it rather unsettling that we are using a formulation that we believe will
become less clear the more we explain it.”) [511 U.S. at 43].
Justice Ginsburg then endorsed the following reasonable doubt
instruction:
The government has the burden of proving the defendant guilty beyond a reasonable
doubt. Some of you may have served as jurors in civil cases, where you were told that it
is only necessary to prove that a fact is more likely true than not true. In criminal cases,
the government's proof must be more powerful than that. It must be beyond a
reasonable doubt.
Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the
defendant's guilt. There are very few things in this world that we know with absolute

839
certainty, and in criminal cases the law does not require proof that overcomes every
possible doubt. If, based on your consideration of the evidence, you are firmly convinced
that the defendant is guilty of the crime charged, you must find him guilty. If on the other
hand, you think there is a real possibility that he is not guilty, you must give him the
benefit of the doubt and find him not guilty. [Id. at 44, quoting Federal Judicial Center,
Pattern Criminal Jury Instructions 17-18 (1987) (instruction 21)]
3. Commentators have also lamented the lack of clarity surrounding
“beyond a reasonable doubt.” See Larry Laudan, Truth, Error, and
Criminal Law: An Essay in Legal Epistemology 31 (2006) (“The most
earnest jury, packed with twelve people desirous of doing the right
thing and eager to see that justice is done, are left dangling with
respect to how powerful a case is required before they are entitled to
affirm that they believe the guilt of the defendant beyond a
reasonable doubt. In such circumstances, simply muddling on is not
an attractive prospect.”).
4. The criminal proof standard is sometimes explained and justified
based on the idea that it is designed to produce a certain ratio of false
acquittals to false convictions. The common source cited for this idea
is William Blackstone's adage that it is better for ten guilty men to go
free than for one innocent man to be convicted, although several
other sources and ratios may be found. See Alexander Volokh, Guilty
Men, 146 U. Pa. L. Rev. 173 (1997). This idea may be more
misleading than it is enlightening, however. A ratio of ten to one, for
example, would be satisfied by a decision rule that in 100 cases
produced (1) 90 false acquittals; (2) nine false convictions; and (3)
one accurate verdict. We obviously care about accurate verdicts—
acquittals and convictions—as much as we care about errors. For
further discussion, see Ronald J. Allen & Larry Laudan, Deadly
Dilemmas, 41 Tex. Tech. L. Rev. 65 (2008).

KEY POINT
In a criminal prosecution, due process requires proof beyond a reasonable doubt of
every fact necessary to constitute the crime charged.

b. The Scope of Winship: Explicit Shifts in the Burden of Persuasion and Other
Matters

The Mullaney Decision. Mullaney v. Wilbur, 421 U.S. 684 (1975),

involved a homicide defendant who claimed that he killed his victim in
the heat of passion provoked by a homosexual assault. The issue
was the applicability of Winship to a Maine homicide statute that
defined murder as requiring “malice aforethought” on top of a simple
intent to kill a person and placed the burden of persuasion on the
defendant to prove that the killing was “in the heat of passion on
sudden provocation” in order to reduce the crime from murder to
manslaughter. The Supreme Court affirmed the granting of a writ of
habeas corpus to the defendant:
After reading the statutory definitions of both offenses [murder and manslaughter], the
court charged that “malice aforethought is an essential and indispensable element of the
crime of murder,” without which the homicide would be manslaughter. The jury

840
was further instructed, however, that if the prosecution established that the homicide
was both intentional and unlawful, malice aforethought was to be conclusively implied
unless the defendant proved by a fair preponderance of the evidence that he acted in
the heat of passion on sudden provocation. The court emphasized that “malice
aforethought and heat of passion on sudden provocation are two inconsistent things”;
thus, by proving the latter the defendant would negate the former and reduce the
homicide from murder to manslaughter. . . .
. . . Felonious homicide is punished as murder—i.e., by life imprisonment—unless the
defendant proves by a fair preponderance of the evidence that it was committed in the
heat of passion on sudden provocation, in which case it is punished as manslaughter—
i.e., by a fine not to exceed $10,000 or by imprisonment not to exceed 20 years. . . .
[T]he fact at issue here—the presence or absence of the heat of passion on sudden
provocation—has been, almost from the inception of the common law of homicide, the
single most important factor in determining the degree of culpability attaching to an
unlawful homicide. And . . . the clear trend has been toward requiring the prosecution to
bear the ultimate burden of proving this fact. . . .
Petitioners . . . note that as a formal matter the absence of the heat of passion on
sudden provocation is not a “fact necessary to constitute the crime” of felonious
homicide in Maine. This distinction is relevant, according to petitioners, because in
Winship the facts at issue were essential to establish criminality in the first instance . . . .
[H]ere . . . , petitioners maintain, the defendant's critical interests in liberty and reputation
are no longer of paramount concern since, irrespective of the presence or absence of
the heat of passion on sudden provocation, he is likely to lose his liberty and certain to
be stigmatized. . . .
Maine has chosen to distinguish those who kill in the heat of passion from those who
kill in the absence of this factor. Because the former are less “blameworth[y],” they are
subject to substantially less severe penalties. By drawing this distinction, while refusing
to require the prosecution to establish beyond a reasonable doubt the fact upon which it
turns, Maine denigrates the interests found critical in Winship.
. . . [W]hen viewed in terms of the potential difference in restrictions of personal liberty
attendant to each conviction, the distinction established by Maine between murder and
manslaughter may be of greater importance than the difference between guilt or
innocence for many lesser crimes.
Moreover, if Winship were limited to those facts that constitute a crime as defined by
state law, a State could undermine many of the interests that decision sought to protect
without effecting any substantive change in its law. It would only be necessary to
redefine the elements that constitute different crimes, characterizing them as factors that
bear solely on the extent of punishment. Id. at 696-98.
Mullaney, which was a unanimous decision, generated considerable
litigation challenging state rules placing burdens of persuasion on the
defendant. The Court revisited the issue two years later in Patterson
v. New York, 432 U.S. 197 (1977). Although the Patterson Court
purported to distinguish Mullaney, Patterson in fact overrules
Mullaney in all but the most formalistic sense. As you will see,
however, that formalistic sense retains considerable importance.
The Patterson Decision. Patterson was convicted of murdering the
partner of his estranged wife. The killing took place after the
defendant had “observed his wife

841

through a window in a state of semiundress” with the victim. The

New York homicide statute defined the elements of murder as an
“intent to cause the death of another person” and “causing the death
of such person.” The statute required no “malice aforethought” nor
premeditation. New York also recognized as an affirmative defense
acting “under the influence of extreme emotional disturbance for
which there was a reasonable explanation or excuse.” Extreme
emotional distress reduced murder to manslaughter, and the burden
of persuasion with respect to this affirmative defense rested with the
defendant.
In rejecting Patterson's contention that placing the burden of proof
with respect to extreme emotional distress on him was
unconstitutional the Court observed that
1. “dealing with crime is much more the business of the States than
it is of the Federal Government”;
2. the New York “extreme emotional distress” defense is “a
considerably expanded version of the common-law defense of
heat of passion on sudden provocation”;
3. subsequent to Mullaney, the Court in Rivera v. Delaware, 429
U.S. 877 (1976), reaffirmed its previous ruing in Leland v.
Oregon, 343 U.S. 790 (1952), that placing the burden of proof
 with respect to insanity on the defendant did not violate due
process; and
4. states may be reluctant to create or expand affirmative defenses
if they have to disprove them beyond a reasonable doubt.
Mullaney, according to the Court, was not controlling for the following
reasons:
The crime of murder [in New York] is defined by statute . . . as causing the death of
another person with intent to do so. The death, the intent to kill, and causation are the
facts that the State is required to prove beyond a reasonable doubt if a person is to be
convicted of murder. No further facts are either presumed or inferred in order to
constitute the crime. The statute does provide an affirmative defense [of extreme
emotional disturbance] . . . which, if proved by a preponderance of the evidence would
reduce the crime to manslaughter, an offense defined in a separate section of the
statute. It is plain enough that if the intentional killing is shown, the State intends to deal
with the defendant as a murderer unless he demonstrates the mitigating circumstances.
...
In Mullaney . . . the Maine statute defined [murder] as the unlawful killing of a human
being “with malice aforethought, either express or implied.” The trial court instructed the
jury that the words malice aforethought were most important because “malice
aforethought is an essential and indispensable element of the crime of murder.” . . . The
instructions emphasized that “malice aforethought and 'heat of passion on sudden
provocation are two inconsistent things.' ” . . .
The Maine Supreme Judicial Court held that murder and manslaughter were varying
degrees of the crime of felonious homicide and that the presumption of malice arising
from the unlawful killing was a mere policy presumption operating to cast on the
defendant the burden of proving provocation if he was to be found guilty of
manslaughter rather than murder. . . .
This Court . . . unanimously agreed with the Court of Appeals [in Mullaney] that [the
defendant's] due process rights had been invaded by the presumption casting upon him
the burden of proving by a preponderance of the evidence that he had acted in the heat
of passion upon sudden provocation.

842
Mullaney's holding, it is argued, is that the State may not permit the blameworthiness
of an act or the severity of punishment authorized for its commission to depend on the
presence or absence of an identified fact without assuming the burden of proving the
presence or absence of that fact, as the case may be, beyond a reasonable doubt. In
our view, the Mullaney holding should not be so broadly read. . . .
Mullaney surely held that a State must prove every ingredient of an offense beyond a
reasonable doubt, and that it may not shift the burden of proof to the defendant by
presuming that ingredient upon proof of the other elements of the offense. . . . Such
shifting of the burden of persuasion with respect to a fact which the State deems so
important that it must be either proved or presumed is impermissible under the Due
Process Clause.
 It was unnecessary to go further in Mullaney. . . . [A] killing became murder in Maine
when it resulted from a deliberate, cruel act committed by one person against another,
“suddenly without any, or without a considerable provocation.” . . . [M]alice, in the sense
of absence of provocation, was part of the definition of that crime. Yet malice, i.e., lack of
provocation, was presumed and could be rebutted by the defendant only by proving by a
preponderance of the evidence that he acted with heat of passion upon sudden
provocation. . . .
As we have explained, nothing was presumed or implied against Patterson. 432 U.S.
at 205-206, 212-216.

The Functional Equivalence of Mullaney and Patterson. Except

for the fact that New York's “extreme emotional distress” defense is
somewhat broader than the Maine “heat of passion” defense,
Mullaney and Patterson are functionally identical. In both cases to
obtain a murder conviction the state had to prove an intentional killing
beyond a reasonable doubt, and in both cases proof of provocation
made a killing, that would otherwise be murder, manslaughter. The
only difference between the two cases is in the language that the
state legislatures used to achieve this gradation in homicide crimes.
Maine defined the critical element of murder as “malice aforethought,”
a concept that encompassed the absence of provocation and cold-
blooded killing. Maine then created a rule that proof of intent gave
rise to a presumption or mandatory finding of malice unless the
defendant proved provocation by a preponderance of the evidence.
New York defined murder initially as requiring only proof that the
defendant intentionally killed a person and then defined provocation
as an affirmative defense for the defendant to prove by a
preponderance of the evidence. This means that in New York, too, a
person becomes guilty of murder only when he kills another human
being with malice aforethought. Technically, however, “malice
aforethought” was not written into the definition of murder as one of
its elements, and this technical detail was the only factor that
separated Patterson from Mullaney.
Evaluating Mullaney and Patterson: The Theory That the
Greater Includes the Lesser. Our preceding discussion does not
necessarily lead to the conclusion that Patterson rather than Mullaney
was the correct decision. Whenever a defendant fails to establish an
affirmative defense, the possibility is presented that, had the
prosecution been required to disprove the defense beyond a
reasonable doubt, the trier of fact would have either convicted the
defendant of a lesser offense or acquitted altogether.

843

Such verdicts would expose the defendant to a lesser punishment

or no punishment at all. Thus, affirmative defenses undeniably affect
the interests articulated in Winship. Yet one cannot jump from this fact
alone to the conclusion that requiring the prosecutor to disprove
affirmative defenses beyond a reasonable doubt serves the due
process interest. Assuming that the punishment for the higher offense
is constitutionally acceptable, given that the prosecution must prove
its elements beyond a reasonable doubt, the allocation of the
persuasion burden for the mitigating factor has no bearing on whether
the defendant suffers unconstitutional punishment.
An example may help to clarify this point. Consider a state with an
intentional homicide statute that punishes every intentional homicide
with 30 years of imprisonment; if the state proves that the defendant
intentionally killed the victim, then a flat sentence of 30 years is
imposed regardless of the presence of any mitigating factor. Assume
that such a statute is constitutional. Now consider how the
constitutionality of that statute is affected if we simply add to it a
provision that no more than 20 years of imprisonment may be
imposed when defendants prove by a preponderance of the evidence
that they acted under the influence of extreme emotional disturbance.
If the constitutional interest in the reasonable doubt standard centers
on liberty deprivation, the addition of a chance to mitigate a
constitutionally valid punishment cannot invalidate the statute. To put
it another way, if a state may constitutionally imprison all intentional
killers for 30 years by proving beyond a reasonable doubt only intent
and causation, then whatever liberty interest defendants
constitutionally possess in the context of homicide prosecutions
surely is fully accommodated by such a statute. The addition of a
mitigating circumstance in the form of an affirmative defense that
reduces punishment as a matter of concession to human frailty, as
some describe it, cannot violate the already fully accommodated
interest.
According to this theory—sometimes referred to as “the greater
includes the lesser” theory — the analysis of the constitutionality of
an affirmative defense must proceed to another level. One must ask
whether the greater punishment—the punishment authorized in the
event the defendant fails to establish the affirmative defense—is
constitutional. In other words, one must ask how to give content to
Winship's command that the state “prove beyond a reasonable doubt
every fact necessary to constitute the crime.” To state the matter in
terms of the issue in Mullaney and Patterson: Is it constitutionally
permissible for Maine or New York to impose its penalty for intentional
killings perpetrated in cold blood on individuals whose homicidal
actions are the result of extreme provocation or extreme emotional
distress? In the next subsection, we discuss several possible tests for
resolving this issue.
Giving Content to Winship: Tests for Assessing the Validity of
Affirmative Defenses.
(1) The Elements Test. Pursuant to the technical “elements” test
adopted by Patterson, the state must prove beyond reasonable doubt
whatever factual issues it labels as elements of the offense. A
component of this test is the “physical location” rule, a rule of
statutory construction providing that a particular factual issue is an
element of an offense only if it is incorporated into the text of the
basic statute formulating the offense.

844

At various points throughout the Patterson opinion, the Court

alluded to that test, most explicitly in the statement that it “will not
disturb the balance struck in previous cases holding that the Due
Process Clause requires the prosecution to prove beyond reasonable
doubt all of the elements included in the definition of the offense of
which the defendant is charged.” 432 U.S. at 210. Furthermore, the
Court emphasized that the emotional upheaval defense raised by Mr.
Patterson was extraneous to that definition: It did “not serve to
negative any facts of the crime which the State is to prove in order to
convict of murder.” Id. at 207. Both examples given by the Court of
unconstitutional burden shifts also tend to support this view. The
Court noted that the legislature cannot declare an individual guilty or
presumptively guilty, nor can it declare that the filing of an indictment
or proof of the identity of the accused shall create a presumption of
the existence of all the facts essential to guilt. These are situations in
which no elements are included within the definition of “crime,” which
may suggest that any affirmative defense will be sustained so long as
the legislature does not drain all substantive content from a crime's
definition.
It is difficult to see what constitutional interest is served by the
elements test. The physical location rule is obviously an arbitrary
means of determining the “definition” of an offense. The legislature
may wish to “define” an offense in one way but determine the
elements of the prosecution's case in another, and either could be
considered the “definition” of the crime. There is no reason why the
validity of a state statute placing the burden of proving provocation on
the defendant should depend on whether the state “defines” murder
(1) as intent, causation, and no provocation in one statute and in
another places the burden of proving provocation on the defendant,
or simply (2) as intent and causation with another statute authorizing
provocation as an affirmative defense.
(2) Federalism and the Political Compromise Test. A second
standard that has been proposed for judging the validity of an
affirmative defense, while somewhat more sophisticated than the
elements test, is no more persuasive. This is the “political
compromise” test, which permits affirmative defenses that result from
the compromise of competing forces in state legislatures. This test
responds to the fear that states may be unwilling to provide certain
affirmative defenses if they cannot place on the defendant the burden
of proof for the factual issue created. The Patterson decision
mentioned this fear as well. Id. at 209-210. Commentators have often
pointed out that a decision like Mullaney, if followed, would likely
inhibit states' experimentation with new affirmative defenses and
undermine their self-government in the field of criminal law. To avoid
that harsh irony, the political compromise test looks to whether the
legislature would have refused to adopt the defense but for the
provision imposing the burden of proof on the defendant.
This test suffers from an inner paradox: If the only justification for
legitimizing burden-shifting affirmative defenses is that otherwise the
legislature would be forced to choose between two diametrically
opposed but constitutional alternatives, then the argument implicitly
assumes the unconstitutionality of those defenses. The real point, in
other words, is that burden-shifting affirmative defenses are
unconstitutional, but because this constitutional truth triggers bad
legislative choices, it is socially preferable to vindicate those defenses
as constitutional.

845

(3) The Proportionality Test. Within the last century, the Cruel and
Unusual Punishment clause of the Eighth Amendment3 has been
interpreted to require a rough proportionality between the culpability
of an offense and the punishment imposed on the offense's
perpetrator. This requirement of proportionality provides the method
of testing the constitutionality of affirmative defenses, and it also
provides the means of delineating the extent of the federal interest in
the reasonable doubt standard. Reconsider the intentional homicide
hypothetical in subsection 1.b.5, supra. If the courts conclude that a
given punishment (30 years in the hypothetical) is not disproportional
to what the state has proved beyond reasonable doubt (intentional
killing), notwithstanding the presence or absence of any mitigating
factors, then a defendant's liberty interest would obviously be
satisfied by a statute that required proof of only those elements and
that imposed that particular punishment. Accordingly, the mere
addition to that statute of an affirmative defense, which after all could
constitutionally be ignored, should be equally satisfactory. The import
of the proportionality principle is, then, that the state should be
required to prove enough to justify the imposition of the maximum
sentence permissible under the statute. Once that is accomplished,
the accused has been fully protected against an unwarranted
deprivation of liberty, and the state should be permitted to elaborate
on the basic statute as it sees fit.
The thesis that due process requires proof beyond a reasonable
doubt only with respect to those elements of the offense that are
“essential” by virtue of the Eighth Amendment concretely expresses
the role of the reasonable doubt standard. Due process and the
Eighth Amendment protect criminal defendants from unwarranted
deprivations of liberty by requiring the state to establish sufficient
factual elements to justify the allotted punishment and by requiring
the state, in establishing those elements, to minimize the risk of error
adverse to the defendant. Once the overriding constitutional
command is satisfied, however, the need for the protective procedure
is likewise satisfied, and the traditional state power should reassert
itself, permitting the states to allocate burdens of proof as they desire.
The theoretical appeal of the proportionality test, in our view, is
compelling. The inherent vagueness of the notion of proportionality,
however, may lead courts to impinge on legislative judgments about
affirmative defenses. Alternatively, the vagueness may lead courts to
defer to legislative judgments except in the most extreme cases.
Indeed, the Supreme Court, particularly in recent years, has upheld
against proportionality challenges quite severe penalties for relatively
minor misconduct. Hutto v. Davis, 454 U.S. 370 (1982) (upholding 40-
year prison term for possession and distribution of approximately nine
ounces of marijuana); Rummell v. Estelle, 445 U.S. 263 (1980)
(upholding constitutionality of a recidivist statute under which
defendant received mandatory life sentence for three crimes of fraud
that netted a total sum of less than $230). But see Solem v. Helm,
463 U.S. 277 (1983) (striking down life sentence for uttering “no-
account” check for less than $100). In the civil context, however, the
Supreme Court has been more willing to impose constitutional
proportionality

846
 limits in cases involving punitive damages. See State Farm v.
Campbell, 538 U.S. 408 (2003); BMW v. Gore, 517 U.S. 559 (1996).
(4) Justice Powell's Two-Part Test. In his Patterson dissent,
Justice Powell suggested a two-part test for determining whether it is
unconstitutional to place the burden of persuasion on the defendant.
First, the facts must make “a substantial difference in punishment of
the offender and in the stigma associated with the conviction.”
Second, in the Anglo-American legal tradition the facts must
historically have had “that level of importance.” If, but only if, both of
these things are true—as Justice Powell argued they were with
respect to extreme emotional distress, it is unconstitutional to place
the burden of proof on the defendant.
Affirmative Defenses After Patterson. Patterson did not adopt
either the proportionality test or Justice Powell's two-part test for
determining what the state must prove beyond a reasonable doubt.
Patterson, however, did acknowledge, as Mullaney pointed out
earlier, that reliance solely on the elements test creates the possibility
that states can undermine Winship by making most factors critical to
the imposition or degree of punishment 'affirmative defenses'.
Moreover, the Patterson Court stated that “there are obviously
constitutional limits beyond which the States may not go in this
regard.” What might those limits be?
Singling Out Excusatory Defenses. Arguably, it is both
constitutional and morally justified to require defendants relying on
excusatory defenses to prove these defenses by a preponderance of
the evidence. Excusatory defenses—insanity, diminished
responsibility, duress, and several others—relate to the personal traits
and circumstances of the defendant and have nothing to do with the
general and impersonal characteristics of his criminal act. These
defenses are granted as a matter of leniency and concession to
human frailty and not because the defendant's act was not criminal or
less criminal. The Winship mandate therefore does not extend and
should not extend to these defenses. See Alex Stein, Foundations of
Evidence Law 180-183 (2005). Do you agree with this argument and
its underlying act-actor distinction?

MARTIN V. OHIO

480 U.S. 228 (1987)

Justice W delivered the opinion of the Court.
The Ohio Code provides that “(e)very person accused of an offense
is presumed innocent until proven guilty beyond a reasonable doubt,
and the burden of proof for all elements of the offense is upon the
prosecution. The burden of going forward with the evidence of an
affirmative defense, and the burden of proof by a preponderance of
the evidence, for an affirmative defense, is upon the accused.” Ohio
Rev. Code Ann. §2901.05(A) (1982). An affirmative defense is one
involving “an excuse or justification peculiarly within the knowledge of
the accused, on which he can fairly be required to adduce supporting
evidence.” Ohio Rev. Code Ann. §2901.05(C)(2) (1982). The

847

Ohio courts have “long determined that self-defense is an

affirmative defense,” and that the defendant has the burden of
proving it as required by §2901.05(A).
As defined by the trial court in its instructions in this case, the
elements of self-defense that the defendant must prove are (1) that
the defendant was not at fault in creating the situation giving rise to
the argument; (2) the defendant had an honest belief that she was in
imminent danger of death or great bodily harm and that her only
means of escape from such danger was in the use of such force; and
(3) the defendant must not have violated any duty to retreat or avoid
danger. The question before us is whether the Due Process Clause of
the Fourteenth Amendment forbids placing the burden of proving self-
defense on the defendant when she is charged by the State of Ohio
with committing the crime of aggravated murder, which, as relevant to
this case, is defined by the Revised Code of Ohio as “purposely, and
with prior calculation and design, caus[ing] the death of another.”
Ohio Rev. Code Ann. §2903.01 (1982).
The facts of the case, taken from the opinions of the courts below,
may be succinctly stated. On July 21, 1983, petitioner Earline Martin
and her husband, Walter Martin, argued over grocery money.
Petitioner claimed that her husband struck her in the head during the
argument. Petitioner's version of what then transpired was that she
went upstairs, put on a robe, and later came back down with her
husband's gun which she intended to dispose of. Her husband saw
something in her hand and questioned her about it. He came at her,
she lost her head and fired the gun at him. Five or six shots were
fired, three of them striking and killing Mr. Martin. She was charged
with and tried for aggravated murder. She pleaded self-defense and
testified in her own defense. The judge charged the jury with respect
to the elements of the crime and of self-defense and rejected
petitioner's Due Process Clause challenge to the charge placing on
her the burden of proving self-defense. The jury found her guilty.
Both the Ohio Court of Appeals and the Supreme Court of Ohio
affirmed the conviction. . . . We granted certiorari, and affirm the
decision of the Supreme Court of Ohio.
In re Winship declared that the Due Process Clause “protects the
accused against conviction except upon proof beyond a reasonable
doubt of every fact necessary to constitute the crime with which he is
charged.” A few years later, we held that Winship's mandate was fully
satisfied where the State of New York had proved beyond reasonable
doubt, each of the elements of murder, but placed on the defendant
the burden of proving the affirmative defense of extreme emotional
disturbance, which, if proved, would have reduced the crime from
murder to manslaughter. Patterson v. New York[, 432 U.S. 197
(1977)]. . . . Referring to Leland v. Oregon, 343 U.S. 790, and Rivera
v. Delaware, 429 U.S. 877, we added that New York did no more than
Leland and Rivera permitted it to do without violating the Due
Process Clause and declined to reconsider those cases. It was also
observed that “the fact that a majority of the States have now
assumed the burden of disproving affirmative defenses—for whatever
reasons—[does not] mean that those States that strike a different
balance are in violation of the Constitution.” As in Patterson, the jury
was here instructed that to convict it must find, in light of all the
evidence, that each of the elements of the crime of aggravated
murder must be proved by the State beyond reasonable doubt and
that the burden of proof with respect to these elements did not shift.
To find guilt,

848

the jury had to be convinced that none of the evidence, whether

offered by the State or by Martin in connection with her plea of self-
defense, raised a reasonable doubt that Martin had killed her
husband, that she had the specific purpose and intent to cause his
death, or that she had done so with prior calculation and design. It
was also told, however, that it could acquit if it found by a
preponderance of the evidence that Martin had not precipitated the
confrontation, that she had an honest belief that she was in imminent
danger of death or great bodily harm, and that she had satisfied any
duty to retreat or avoid danger. The jury convicted Martin.
We agree with the State and its Supreme Court that this conviction
did not violate the Due Process Clause. The State did not exceed its
authority in defining the crime of murder as purposely causing the
death of another with prior calculation or design. It did not seek to
shift to Martin the burden of proving any of those elements, and the
jury's verdict reflects that none of her self-defense evidence raised a
reasonable doubt about the state's proof that she purposefully killed
with prior calculation and design. She nevertheless had the
opportunity under state law and the instructions given to justify the
killing and show herself to be blameless by proving that she acted in
self-defense. The jury thought she had failed to do so, and Ohio is as
entitled to punish Martin as one guilty of murder as New York was to
punish Patterson.
It would be quite different if the jury had been instructed that self-
defense evidence could not be considered in determining whether
there was a reasonable doubt about the state's case, i.e., that self-
defense evidence must be put aside for all purposes unless it
satisfied the preponderance standard. Such instruction would relieve
the state of its burden and plainly run afoul of Winship's mandate.
The instructions in this case could be clearer in this respect, but when
read as a whole, we think they are adequate to convey to the jury that
all of the evidence, including the evidence going to self-defense, must
be considered in deciding whether there was a reasonable doubt
about the sufficiency of the state's proof of the elements of the crime.
We are thus not moved by assertions that the elements of
aggravated murder and self-defense overlap in the sense that
evidence to prove the latter will often tend to negate the former. It
may be that most encounters in which self-defense is claimed arise
suddenly and involve no prior plan or specific purpose to take life. In
those cases, evidence offered to support the defense may negate a
purposeful killing by prior calculation and design, but Ohio does not
shift to the defendant the burden of disproving any element of the
state's case. When the prosecution has made out a prima facie case
and survives a motion to acquit, the jury may nevertheless not convict
if the evidence offered by the defendant raises any reasonable doubt
about the existence of any fact necessary for the finding of guilt.
Evidence creating a reasonable doubt could easily fall far short of
proving self-defense by a preponderance of the evidence. Of course,
if such doubt is not raised in the jury's mind and each juror is
convinced that the defendant purposely and with prior calculation and
design took life, the killing will still be excused if the elements of the
defense are satisfactorily established. We note here, but need not
rely on it, the observation of the Supreme Court of Ohio that
“Appellant did not dispute the existence of [the elements of
aggravated murder], but rather sought to justify her actions on
grounds she acted in self-defense.” Petitioner submits that there can
be no conviction under Ohio law unless the defendant's conduct is
unlawful and

849

that because self-defense renders lawful what would otherwise be a

crime, unlawfulness is an element of the offense that the state must
prove by disproving self-defense. This argument founders on state
law, for it has been rejected by the Ohio Supreme Court and by the
Court of Appeals for the Sixth Circuit. White v. Arn, 788 F.2d 338,
346-347 (6th Cir. 1986); State v. Morris, 8 Ohio App. 3d 12, 18-19,
455 N.E.2d 1352, 1359-1360 (1982). It is true that unlawfulness is
essential for conviction, but the Ohio courts hold that the
unlawfulness in cases like this is the conduct satisfying the elements
of aggravated murder—an interpretation of state law that we are not
in a position to dispute. The same is true of the claim that it is
necessary to prove a “criminal” intent to convict for serious crimes,
which cannot occur if self-defense is shown: the necessary mental
state for aggravated murder under Ohio law is the specific purpose to
take life pursuant to prior calculation and design.
As we noted in Patterson, the common law rule was that affirmative
defenses, including self-defense, were matters for the defendant to
prove. “This was the rule when the Fifth Amendment was adopted,
and it was the American rule when the Fourteenth Amendment was
ratified.” Indeed, well into this century, a number of States followed
the common law rule and required a defendant to shoulder the
burden of proving that he acted in self-defense. We are aware that all
but two of the States, Ohio and South Carolina, have abandoned the
common law rule and require the prosecution to prove the absence of
self-defense when it is properly raised by the defendant. But the
question remains whether those States are in violation of the
Constitution; and, as we observed in Patterson, that question is not
answered by cataloging the practices of other States. We are no
more convinced that the Ohio practice of requiring self-defense to be
proved by the defendant is unconstitutional than we are that the
Constitution requires the prosecution to prove the sanity of a
defendant who pleads not guilty by reason of insanity. We have had
the opportunity to depart from Leland v. Oregon but have refused to
do so. Rivera v. Delaware, 429 U.S. 877 (1976). These cases were
important to the Patterson decision and they, along with Patterson,
are authority for our decision today.
The judgment of the Ohio Supreme Court is accordingly affirmed.
 NOTES AND QUESTIONS ON MARTIN
1. Consider carefully the relationship between self-defense and the
“prior calculation and design” element of aggravated murder. In a
dissenting opinion, Justice Powell argued that “prior calculation” and
self-defense were mutually exclusive. Thus, he regarded self-defense
as negating one of the elements of murder. The defendant, however,
pursued a different line of argument. As the majority pointed out, she
did not dispute the existence of the elements of aggravated murder.
To the extent that Justice Powell's characterization of the
relationship between “prior calculation” and self-defense is correct,
the principal problem with Martin, as Justice Powell pointed out, is a
potentially confusing jury instruction: “It makes no sense to say that
the prosecution has the burden of proving an element beyond a
reasonable doubt and that the defense has the burden of proving the
contrary by a

850

preponderance of the evidence.” On the other hand, if the mens rea

for aggravated murder is not inconsistent with self-defense, Martin is
a much more troubling decision. Assume for the sake of argument
that “prior calculation and design” means no more forethought than
would typically go into a decision to kill in self-defense or under
extreme emotional distress. Now compare a killing allegedly
committed under extreme emotional distress with a killing allegedly
committed in self-defense. Reasonable people may differ about
whether extreme emotional distress is sufficiently mitigating that the
defendant should not be punished as a murderer unless the
prosecution disproves the extreme emotional distress claim beyond a
reasonable doubt. The defendant who kills under the influence of
extreme emotional distress will be punished, however. The killing is a
culpable, criminal act; the extreme emotional distress mitigates the
crime but does not justify or excuse it. By contrast, the person who
kills in self-defense has not committed a crime; the killing is justified.
Thus, when the central issue in a case is self-defense, the entire
question whether there was culpable criminal conduct turns on a
resolution of that issue. To convict a person claiming self-defense of
aggravated murder—a capital offense in Ohio—without requiring the
prosecution to disprove self-defense beyond a reasonable doubt is to
convict someone for whom there has been no proof beyond a
reasonable doubt of culpable conduct!
2. Unfortunately, the broad, troublesome implications of Martin
appear to be the correct ones. The Martin majority's superficial
analysis did not move beyond the fact that Ohio proved beyond a
reasonable doubt the elements that it had included in its murder
statute. Moreover, White v. Arn, 788 F.2d 338 (6th Cir. 1986), one of
the cases setting forth constitutional interpretations of Ohio law that
the Martin majority was “not in a position to dispute,” involved self-
defense and nonaggravated murder. In that case, there was no
plausible inconsistency between having the mental state defined in
the murder statute (purposefulness) and having the mental state
required for self-defense. In other words, there could be a purposeful
killing in self-defense. Indeed, White specifically relied on this lack of
inconsistency to hold that proof of self-defense does not negate
purposefulness and, therefore, that it was not unconstitutional to
place the burden of proof with respect to self-defense on the
defendant. Id. at 346.
3. After Martin, is it still true, as the Patterson majority claimed, that
“there are obviously constitutional limits beyond which the States may
not go”? Could a state constitutionally define murder simply as
“causing the death of another human being” ? How would that statute
differ from what the Court approved in Martin?
4. Consider now a different line of argument that seemingly
vindicates the Martin decision. To the extent Ms. Martin relied on self-
defense as an affirmative defense, then, as per Ohio law, she had to
prove it by a preponderance of the evidence. But she could—and,
arguably, did—rely on the underlying facts of self-defense, along with
the evidence supporting her self-defense claim, to negate the “prior
calculation and design” element of aggravated murder. To the extent
she pursued this line of defense, she benefited from the Winship
protection as the prosecution had to disprove these facts beyond a
reasonable doubt. Does this argument vindicate the Martin decision?
Cf. Leland v. Oregon, 343 U.S. 790 (1952) (upholding the
constitutionality of Oregon law requiring defendants to prove the
insanity defense beyond a reasonable doubt (!)

851

while allowing the defendant to use any evidence of his insanity to

negate mens rea); Clark v. Arizona, 548 U.S. 735 (2006) (holding that
states can constitutionally require defendants to prove the insanity
defense by clear and convincing evidence, while emphasizing that
the defendant could—and did—use the facts underlying his mental
illness, save for conclusory psychiatric opinions banned by Arizona
law, to raise a reasonable doubt as to his intent to kill the victim);
Dixon v. United States, 548 U.S. 1, 10-11, 15-17 (2006) (holding that
defendants accused of federal crimes must prove duress by a
preponderance of the evidence, but when the alleged offense
includes malice, the defendant may use her evidence of duress to
raise a reasonable doubt as to whether her actions were malicious).

KEY POINTS
1. Courts interpret the Winship mandate as a requirement that the
prosecution prove beyond a reasonable doubt each fact listed
in the statutory definition of the crime.
2. It is permissible to place the burden of persuasion on the
defendant with respect to affirmative defenses such as
extreme emotional distress or self-defense, as long as the
state categorizes them as affirmative defenses rather than
elements of the crime.
3. When a defendant's affirmative defense overlaps an element of
the alleged crime, the defendant can—and will do well to—use
the evidence underlying that defense to raise a reasonable
doubt as to the presence of the requisite element. By pursuing
this line of defense, the defendant will avail himself of the
Winship protection.
 4. There are some unspecified limits beyond which the states
may not go in creating affirmative defenses that limit the
Winship proof beyond a reasonable doubt mandate.

NOTES AND QUESTIONS ON THE APPLICATION OF WINSHIP IN OTHER CONTEXTS

1. Winship and Sentencing. In Apprendi v. New Jersey, 530 U.S.

466 (2000), the defendant was convicted of weapons offenses as a
result of his shooting a gun into the home of an African-American
family that had recently moved into a previously all-white
neighborhood. The maximum sentence for Apprendi's offenses was
ten years, but a separate New Jersey statute—a “hate crimes” statute
—permitted adding up to ten additional years to the sentence if the
judge found by a preponderance of the evidence that the crime was
racially motivated. At Apprendi's sentencing, the judge made the
requisite finding and sentenced Apprendi to 12 years imprisonment.
The Supreme Court held that the sentencing violated Apprendi's
constitutional rights. According to the Court, any fact increasing the
penalty beyond the prescribed statutory maximum (here ten years),
other than the fact of a prior conviction, must be submitted to the jury
and proven beyond a reasonable doubt.

852

Apprendi, like Mullaney v. Wilbur, page 839, supra, unleashed a

flood of litigation. Would Apprendi apply if, for example, (a) the hate-
crime provision had been part of the same statute that was the basis
for Apprendi's conviction, (b) the judge did not exceed the statutory
maximum but gave an unusually harsh sentence on the basis of facts
found by a preponderance of the evidence at sentencing, or (c) the
judge relied on sentencing guidelines to increase a defendant's
sentence? In the last case, would it matter if the guidelines were
mandatory or discretionary?
Patterson v. New York, page 840, supra, resolved many of the
uncertainties created by Mullaney with its adoption of the “elements”
test for determining what the prosecution must prove beyond a
reasonable doubt. Similarly, United States v. Booker, 543 U.S. 220
(2005), appears to have resolved many of the constitutional
uncertainties created by Apprendi.
Booker was convicted of possessing with the intent to distribute
over 50 grams of cocaine. The statutory penalty for the offense was
ten years to life imprisonment. The Federal Sentencing Guidelines,
however, required a sentence of between 17 and 22 years in the
absence of any aggravating or mitigating factors. The sentencing
judge found by a preponderance of the evidence that Booker had
obstructed justice and had possessed an additional 566 grams of
cocaine. With these aggravating factors, the Federal Sentencing
Guidelines mandated a sentence of between 30 years and life. The
judge imposed a 30-year sentence—12 years longer than the
sentence that could have been imposed on the basis of facts found
by the jury beyond a reasonable doubt.
The same five-Justice majority that had upheld Apprendi's claim
(Stevens, Souter, Scalia, Thomas, and Ginsburg) held that Apprendi
applied to mandatory sentencing guidelines: The judge cannot
impose a sentence that exceeds the maximum authorized by the
jury's finding or a guilty plea, regardless of whether the maximum was
created by statute or sentencing guideline. All nine Justices agreed
that in the absence of statutory or guideline mandates, there would
be no constitutional problem. In other words, if there had been no
mandatory guidelines alongside the statutory penalty of ten years to
life, the trial judge could have given Booker any sentence within the
statutory range—even if the judge chose a relatively high sentence
on the basis of a preponderance finding that Booker obstructed
justice and possessed additional amounts of cocaine! In short, the
Booker “solution” to the Apprendi problem is as formalistic and
artificial as is the Patterson solution to the Mullaney problem. In one
case it is a matter of statutory “elements,” and in the other it is a
matter of mandatory sentencing limits.
In one important respect, though, Booker is quite different from
Patterson. Patterson's elements test has the effect of deferring to
legislative judgments about how to define crimes. By contrast, Booker
interferes with legislative judgments about how to regulate
sentencing: Mandatory sentencing guideline systems, which a
number of jurisdictions had adopted to regulate sentencing disparity,
are now unconstitutional. Unregulated sentence discretion, on the
other hand, is alive and well. What values protected by the Winship
reasonable doubt requirement and the Sixth Amendment jury trial
right justify Booker's interference with legislative judgments?
2. Winship problems may arise when a state permits the jury to
convict the defendant of a single crime without necessarily agreeing
on the facts that support the

853

conviction or when a jury convicts a defendant of a greater crime

(for which there is reasonable doubt) because they were not given
the option of convicting for a lesser crime (for which there is proof
beyond a reasonable doubt). See Schad v. Arizona, 501 U.S. 624
(1991) (upholding first degree murder conviction under jury
instructions that did not require jury to distinguish between felony-
murder and premeditated murder); Beck v. Alabama, 477 U.S. 625
(1980) (holding unconstitutional a statute that prohibited instructions
for lesser included offenses in criminal cases).
3. In Montana v. Egelhoff, 518 U.S. 37 (1996), a murder
prosecution, the Supreme Court upheld a Montana statute that made
evidence of voluntary intoxication inadmissible “in determining the
existence of a mental state which was an element of the offense.”
According to Justice Scalia's plurality opinion, this restriction on the
right to introduce evidence did not violate a “ 'fundamental principle of
justice.' ” Id. at 42.
The defendant had argued, inter alia, that the statute had the effect
of reducing the state's burden of proof on the mens rea element in
violation of Winship. The Montana Supreme Court had agreed,
relying on the following passage from Martin v. Ohio:
It would be quite different if the jury had been instructed that self-defense evidence could
not be considered in determining whether there was a reasonable doubt about the
State's case, i.e., that self-defense evidence must be put aside for all purposes unless it
satisfied the preponderance standard. Such instruction would relieve the State of its
 burden and plainly run afoul of Winship's mandate. The instructions in this case . . . are
adequate to convey to the jury that all of the evidence, including the evidence going to
self-defense, must be considered in deciding whether there was a reasonable doubt
about the sufficiency of the State's proof of the elements of the crime. 480 U.S. at 233-
234.
Justice Scalia's response to the Winship-Martin argument was as
follows:
This passage can be explained in various ways—e.g., as an assertion that the right to
have a jury consider self-defense evidence (unlike the right to have a jury consider
evidence of voluntary intoxication), is fundamental, a proposition that the historical
record may support. But the only explanation needed for present purposes is the one
given in Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 379 (1994): “It is to the
holdings of our cases, rather than dicta, that we must attend.” [518 U.S. at 56.]
What do you think of the defendant's Winship argument? Of Justice
Scalia's response?
Justice Ginsburg, concurring in the judgment, maintained that the
Montana statute should be understood as redefining mens rea, not as
restricting evidence:
Beneath the labels (rule excluding evidence or redefinition of the offense) lies the
essential question: Can a State, without offense to the Federal Constitution, make the
judgment that two people are equally culpable where one commits an act stone sober,
and the other engages in the same conduct after his voluntary intoxication has reduced
his capacity for self-control? Id. at 57.
What do you think of Justice Ginsburg's formulation of the issue? Of
her affirmative answer? See Ronald J. Allen, Forward: Montana v.
Egelhoff—Reflections on the Limits of Legislative Imagination and
Judicial Authority, 87 J. Crim. L. & Criminology 633 (1997).

854

4. In Clark v. Arizona, 548 U.S. 735 (2006), the Supreme Court

upheld Arizona's statute and common law that limited a defendant's
psychiatric expert testimony about his mental illness to the affirmative
defense of insanity—an issue the defendant needed to prove by clear
and convincing evidence—and excluded the expert's opinion on the
issue of mens rea that went beyond factual observations about the
defendant's tendency to think in a certain way and his behavioral
characteristics. The defendant, who was convicted of first degree
murder for intentionally killing a police officer, argued that expert
testimony about his schizophrenia showed that he was acting out of
delusions caused by his mental illness and not with the requisite
intent. By upholding the state law limiting the use of this evidence, is
the Court in effect saying that it is constitutional to make defendants
prove lack of mens rea when they wish to introduce expert testimony
on the issue? Consider in this context FRE 704(b), according to
which, “In a criminal case, an expert witness must not state an
opinion about whether the defendant did or did not have a mental
state or condition that constitutes an element of the crime charged or
of a defense. Those matters are for the trier of fact alone.”
If states may shift the burden of persuasion on the issue of mens
rea (at least with regard to mentally ill defendants), we ask once
again: What are the constitutional limits on what states may do? For
further discussions of Clark, see Ronald J. Allen, Clark v. Arizona:
Much (Confused) Ado About Nothing, 4 Ohio St. J. Crim. L. 135
(2006); Peter Westen, The Supreme Court's Bout with Insanity: Clark
v. Arizona, 4 Ohio St. J. Crim. L. 143 (2006); Alex Stein,
Constitutional Evidence Law, 61 Vand. L. Rev. 65, 120-121 (2008).
5. Federal criminal law, both statutory and judge made, routinely
requires defendants to prove affirmative defenses by a
preponderance and even by clear and convincing evidence. See
Dixon v. United States, 548 U.S. 1, 15-17 (2006) (requiring
defendants relying on duress as an affirmative defense to prove it by
a preponderance of the evidence). See also 18 U.S.C. §17 (b) (“The
defendant has the burden of proving the defense of insanity by clear
and convincing evidence.”).
c. The Burden of Production in Criminal Cases
As we discussed in Section A, at pages 804-807, supra, the primary
significance of a production burden is that the failure to meet it will
preclude the party who has that burden from presenting the matter to
the jury. The court will resolve the issue against the party with the
production burden. For example, if the prosecution fails to present
sufficient evidence to permit a finding beyond a reasonable doubt of
each element of the crime, the court will direct a verdict of acquittal
for the defendant.
 It is frequently said that because of a criminal defendant's
constitutional right to a jury trial, it is impermissible to direct a verdict
against a criminal defendant. In fact, however, courts commonly
engage in activity that is the equivalent of directing verdicts against
criminal defendants. Consider, for example, the refusal of a judge to
instruct the jury on a particular defense or lesser included offense on
the grounds that insufficient evidence of that defense has been
produced—a practice approved by the Supreme Court in United
States v. Bailey, 444 U.S. 394 (1980).

855

Bailey involved defendants' challenges to their convictions for

escaping from a federal institution. In upholding the convictions, the
Court rejected claims that the trial court erred in failing to instruct the
jury on the common law defenses of duress and necessity. The
defendants testified that their actions were motivated by death
threats, and they requested an instruction on duress or necessity.
The Court concluded that even if Congress intended to allow such
defenses—a point left undecided until the defenses were recognized
in Dixon v. United States, 548 U.S. 1 (2006)—the defendants failed to
make a sufficient showing of duress or necessity to justify a jury
instruction. The defendants, in other words, failed to meet a burden of
production, and the district court practically directed a verdict on their
defenses by refusing to instruct on them.

NOTES AND QUESTIONS

1. What the Bailey Court did not do, unless it did so implicitly, was to
inquire into the constitutional necessity of establishing the fact in
issue—in this case, whether or not the defendants had acted under
duress or necessity. Without that inquiry, the Court's analysis is
incomplete. If the fact in issue was one that must be established in
order to justify the potential sanction, then permitting the district court
to remove that issue from the case resulted in a conviction when one
essential fact had not been proven beyond reasonable doubt to the
jury's satisfaction, which is inconsistent with Winship. But see Dixon
v. United States, 548 U.S. 1 (2006) (holding that duress and
necessity are available as affirmative defenses under federal law, but
only when the defendant proves the underlying facts by a
preponderance of the evidence).
2. If the fact in issue does not need to be established beyond a
reasonable doubt, then Bailey provides an acceptable, if not ideal,
analysis of burdens of production on nonessential elements. The
analysis is not ideal because of the majority's position that personal
testimony of the defendants did not justify a jury instruction. 444 U.S.
at 415. The Court is playing the role of factfinder with such a test and
concluding that the defendants' testimony is incredible. As a matter of
policy, such questions should be left to the jury even on nonessential
issues. Indeed, pursuant to the Dixon precedent, it is up to the jury to
decide whether the defendant proved duress or necessity by a
preponderance of the evidence.

KEY POINTS
1. Courts typically refuse to give instructions on defenses and
lesser included offenses when they find that the defendant has
produced insufficient evidence to warrant such instructions.
These rulings are the equivalent of directed verdicts against
criminal defendants.
2. Although the Supreme Court has not addressed the issue,
refusing to give such an instruction has the potential for
undermining Winship.

856

2. Judicial Summary and Comment on the Evidence in Criminal

Cases
In the criminal context, courts apply a similar standard for evaluating
summary and comment as in civil cases. See our discussion of
summary and comment in civil cases in Section A.2, supra. For
example, in Quercia v. United States, 289 U.S. 466, 468-469 (1933),
the trial judge instructed the jury in the following manner:
And now I am going to tell you what I think of the defendant's testimony. You may have
noticed, Mr. Foreman and gentlemen, that he wiped his hands during his testimony. It is
rather a curious thing, but that is almost always an indication of lying. Why it should be
so we don't know, but that is the fact. I think that every single word that man said, except
when he agreed with the Government's testimony, was a lie.
Now, that opinion is an opinion of evidence and is not binding on you, and if you don't
agree with it, it is your duty to find him not guilty.
In reversing the ensuing conviction, the Supreme Court stated:
This privilege of the judge to comment on the facts has its inherent limitations. His
discretion is not arbitrary and uncontrolled, but judicial, to be exercised in conformity
with the standards governing the judicial office. In commenting upon testimony he may
not assume the role of a witness. He may analyze and dissect the evidence, but he may
not either distort it or add to it. His privilege of comment in order to give appropriate
assistance to the jury is too important to be left without safeguards against abuses. . . .
Nor do we think that the error was cured by the statement of the trial judge that his
opinion of the evidence was not binding on the jury and that if they did not agree with it
they should find the defendant not guilty. His definite and concrete assertion of fact,
which he had made with all the persuasiveness of judicial utterance, as to the basis of
his opinion, was not withdrawn. Id. at 469, 472.

NOTES AND QUESTIONS

1. Courts regularly cite and quote from Quercia in cases involving
challenges to judicial summary and comment. In most of these cases,
the judge's statements to the jury are not as extreme as the remarks
in Quercia. United States v. Maguire, 918 F.2d 254, 268-269 (1st Cir.
1990) (instruction summarizing government's theory of the case
proper); United States v. Paiva, 892 F.2d 148, 159 (1st Cir. 1989)
(judge's explanation of what a field test for cocaine is went beyond
proper bounds of judicial comment absent testimony about what a
field test involved, but error was harmless).
2. Is the standard implicit in Quercia inherently inconsistent? How
can one “analyze and dissect the evidence” without “adding to it”? For
a discussion, see Ronald J. Allen, More on Constitutional Process-of-
Proof Problems, 94 Harv. L. Rev. 1795 (1981); and Charles R.
Nesson, Rationality, Presumptions, and Judicial Comment: A
Response to Professor Allen, 94 Harv. L. Rev. 1574, 1589-1590
(1981).

857

3. A judicial comment will either be obvious or not obvious to the

jury. If it is obvious, the reiteration of the obvious by the trial judge
should not be grounds for reversal. If the judge's comment is not
obvious, a critical question should be whether the comment is
accurate:
Consider a murder trial where the defendant has injected the “defense” of alibi. Assume
that on the basis of the evidence adduced without judicial comment, a well-informed,
rational jury would conclude that there is a 15 percent chance that the facts of the alibi
story are true. The verdict would be not guilty, since a 15 percent chance of error surely
is a “reasonable doubt.” First, take the case in which the trial judge comments on the
evidence tending to prove or disprove the alibi and assume that the comment is factually
inaccurate. Assume further that as a result of the inaccurate comment, the same jury
would conclude that there is only a very small chance that the alibi is true. The verdict,
then, all other things remaining the same, would be guilty. In order to escape the guilty
verdict, and the effect of the trial judge's comments, the defendant would unfairly be
forced to produce stronger, more persuasive evidence of the alibi. In effect, his burden of
persuasion has been increased beyond that of merely raising a reasonable doubt.
Now consider the case where the judge's comments on the evidence are accurate.
Assume again that the comments caused the jury to discredit the alibi sufficiently to
render a guilty verdict. Once again, the defendant's burden of persuasion has been
increased—he would have to present stronger evidence to gain an acquittal—but this
time the defendant has no constitutional grounds to complain. By altering the jury's
factual matrix to one more in accordance with reality, the judicial comment has enabled
the jury to perceive that guilt was indeed proven beyond a reasonable doubt.
The example illustrates that inaccurate judicial comment detrimental to the defendant,
on an issue that constitutionally must be included in a state's definition of a crime,
violates the mandate of In re Winship by effectively lowering the state's burden of
proving guilt beyond a reasonable doubt. . . . Accurate comment, on the other hand, can
prevent an erroneous verdict when the jury is unable to appreciate the implications of
certain facts proven at trial. Ronald J. Allen, Structuring Jury Decisionmaking in Criminal
Cases: A Unified Constitutional Approach to Evidentiary Devices, 94 Harv. L. Rev. 321,
348-349 (1980).

3. Presumptions in Criminal Cases: The Impact of Winship

Review the discussion of Mullaney and Patterson at pages 839-840,
supra. A presumption that explicitly shifts the burden of persuasion to
the defendant is obviously unconstitutional if the presumed fact is one
that the prosecution must prove beyond a reasonable doubt. For
example, the Court in Mullaney, beginning with the premise that the
prosecution must establish malice aforethought beyond a reasonable
doubt, held unconstitutional the “conclusive inference” of malice from
proof of an unlawful, intentional killing. This “conclusive inference,”
which Patterson characterized as a presumption, was indeed a
traditional mandatory persuasion burden presumption.
Patterson, of course, called into question the underlying premise
that the state had to prove malice (i.e., the absence of provocation)
beyond a reasonable doubt. As we

858

suggested in Section B, however, the Supreme Court has relied

primarily on how a state chooses to define a crime as the basis for
determining what the state must prove beyond a reasonable doubt.
Thus, Mullaney stands for the proposition that once a state includes a
fact as part of the definition of a crime, the state cannot create a
presumption that shifts the burden of persuasion on that fact.
Similarly, the state cannot create a conclusive or irrebuttable
presumption that an element of a crime exists. Sandstrom v.
Montana, 442 U.S. 510 (1979). Unless we state otherwise, we will
assume in the ensuing discussion that we are dealing with facts that
the state has defined as elements of offenses and that must,
therefore, be proven beyond a reasonable doubt.
In order to avoid a Mullaney-type conflict with Winship,
presumptions in criminal cases are typically permissive rather than
mandatory: If the factfinder believes the facts giving rise to the
presumption, the factfinder may, but is not required to, find the
presumed fact. The factfinder must be convinced of the presumed
fact beyond a reasonable doubt. Merely making the presumption
permissive, however, does not altogether eliminate Winship-related
problems.
To determine whether a jury instruction about a presumption
violates Winship, it is important to focus on the language of the
instruction itself. If jurors could reasonably understand the instruction
as permitting proof of the presumed fact by less than beyond a
reasonable doubt, the instruction is unconstitutional. Sandstrom v.
Montana, 442 U.S. at 510. According to County Court of Ulster
County v. Allen, 442 U.S. 140 (1979), a permissive presumption
instruction with respect to an element of an offense is constitutional
(1) if the instruction as a whole makes it clear that the jury must be
convinced of each element of the crime beyond a reasonable doubt;
(2) if there is a rational connection between the basic facts—that
need to be proved beyond a reasonable doubt—and the presumed
facts; and (3) if the presumed facts are more likely than not to flow
from the basic facts. In deciding whether the crucial “more likely than
not” relationship exists, the primary focus is on the evidence in the
case, not on whether the relationship exists in the abstract. In Ulster
County, the Court upheld the constitutionality of a permissive
presumption that allowed jurors to find any person occupying an
automobile to be in possession of a firearm that is found in the
automobile except when the firearm is found upon the person of
another occupier of the same car. The Court ruled that it was “more
likely than not” that the defendants possessed the handguns
recovered from their vehicle, which established the requisite nexus
between the basic and the presumed facts and authorized jurors to
find the fact of possession on the totality of the evidence.
A production burden presumption—that is, a presumption
instructing the jury that the presumed fact is present unless the
defendant produces evidence to rebut it—is constitutionally suspect.
According to a dictum in Ulster County, if jurors could reasonably
understand the instruction as requiring them to find the presumed fact
unless the defendant produces a certain amount of evidence, the
instruction would likely be unconstitutional. In essence, it
recommends jurors to convict the defendant because of his failure to
come forward with evidence, regardless of whether the jury is
convinced beyond a reasonable doubt that the defendant committed
the crime. On the other hand, if the instruction makes it clear that the
defendant's obligation is minimal while underscoring Winship's
beyond-a-reasonable-doubt mandate, it may
859

be tantamount to a permissive presumption. Such an instruction

would likely be constitutional when the presumption meets the “more
likely than not” requirement for the case-specific connection between
the basic and the presumed facts.

NOTES AND QUESTIONS

1. In criminal cases prior to Ulster County, the Supreme Court had
assessed the constitutionality of presumptions primarily in terms of
the empirical relationship between the presumed facts and the facts
giving rise to the presumption. The recurring issue was whether the
relationship had to exist beyond a reasonable doubt or whether a
more-likely-than-not relationship was sufficient. Barnes v. United
States, 412 U.S. 837 (1973); Turner v. United States, 396 U.S. 398
(1970). Ulster County resolved the issue for permissive presumptions
by settling on the more-likely-than-not standard. In addition, dictum in
Ulster County suggests that a presumption shifting the burden of
persuasion to the defendant may be constitutional if the general (as
opposed to case-specific) relationship between the basic and the
presumed facts exists beyond a reasonable doubt. 442 U.S. at 157-
159 and nn.16-17. Sandstrom v. Montana, however, makes no
reference to this dictum in holding unconstitutional a presumption
instruction that could have been understood as shifting the burden of
persuasion to the defendant.
2. Why should the empirical relationship between the basic and the
presumed facts matter?
For a discussion of the criteria that should be used in evaluating
presumptions in criminal cases, see Ronald J. Allen, Structuring Jury
Decisionmaking in Criminal Cases: A Unified Constitutional Approach
to Evidentiary Devices, 94 Harv. L. Rev. 321 (1980).

KEY POINTS
 1. In assessing the constitutionality of a presumption instruction, it
is important to focus precisely on what the court tells the jury. If
the jury could understand the instruction in a manner that
violates Winship, the presumption is unconstitutional.
2. Presumptions that conclusively deem elements of crimes
present are unconstitutional.
3. Presumptions that shift the burden of persuasion to the
defendant with respect to elements of offenses are
unconstitutional as well (subject to the above-mentioned
dictum in the Ulster County case, not followed in Sandstrom v.
Montana).
4. Permissive presumptions are constitutional if the relationship
between the basic facts—that must be proven beyond a
reasonable doubt—and the presumed facts meets the “more
likely than not” standard in light of the evidence in the case.

860

PROBLEMS
10.5. Defendant Morgan was convicted of driving under the
influence of intoxicating beverages. Some 90 minutes after
Morgan drove his vehicle off the road and through a fence, an
officer interviewed him at a friend's home. According to the
officer, Morgan appeared unsteady and smelled of alcohol, but
Morgan claimed that he had not consumed any alcohol since
the accident. A breathalyzer test at the time of the interview
indicated that Morgan had a blood alcohol level of .14 percent.
Morgan is 19 years old, 5 feet 10 inches tall, and weighs 190
pounds. In the instructions to the jury, the judge stated that
Morgan was to be found guilty “if, and only if, you believe from
all the evidence beyond a reasonable doubt (a) that the
defendant was driving a motor vehicle and (b) that while doing
so he was under the influence of alcohol.” The judge also read
 verbatim to the jury the following statutory language and told
the jury to “consider this as evidence in the case”:
(a) In any criminal prosecution in which the defendant is
charged with having operated a vehicle while under the
influence of intoxicating beverages, the amount of alcohol
in the defendant's blood as determined at the time of
making an analysis of his blood, urine, breath, or other
bodily substance, shall give rise to the following
presumptions: (i) If there was .05 percent or less by
weight of alcohol in such blood, it shall be presumed that
the defendant was not under the influence of intoxicating
beverages; (ii) If there was more than .05 percent but less
than .10 percent by weight of alcohol in such blood, such
fact shall not constitute a presumption that the defendant
either was or was not under the influence of intoxicating
beverages, but such fact may be considered together with
other competent evidence, in determining the guilt or
innocence of the defendant; (iii) If there was .10 percent
or more by weight of alcohol in such blood, it shall be
presumed that the defendant was under the influence of
intoxicating beverages.
(b) The provisions of subsection (a) of this section shall not
be construed as limiting the introduction of any other
competent evidence bearing on the question whether the
defendant was under the influence of intoxicating
beverages.
Did the instruction violate the defendant's constitutional
rights?
10.6. Davis, a union official, was convicted of lying to the grand jury.
The allegedly false statement was his denial that he had
accepted campaign contributions from an employer. The trial
judge's jury instructions included the following:
Under federal law, it is improper for a union official to accept any union campaign
contributions from any employer. Specifically, federal law provides that “no moneys
of an employer shall be contributed or applied to promote the candidacy of any
person in any election.” This law applied even where the contribution may have
been minimal.
 I want to caution you that the defendant is not charged in this indictment with
receiving improper payments of union campaign expenses. I want to instruct you
that you may only consider this instruction in determining the defendant's intent
and state of mind in answering questions before the grand jury.

861

The purpose of the instruction, according to the prosecution,

was to suggest to the jury that Davis had a motive to lie to the
grand jury: Because receiving such funds is illegal and
because Davis presumably knew it was illegal, he had a motive
to lie about whether he had received the funds. Davis, on the
other hand, points out that the only sanction for receiving such
funds would have been his removal from office for the one
remaining month of his term. Avoiding such a minor sanction,
he suggests, is not worth the risk of a possible criminal
conviction for lying to the grand jury. He claims that the
instruction was unconstitutional because it created for the jury
either an irrational permissive inference or a mandatory
presumption. What result?
10.7. Libby was convicted of murder for stabbing his victim to death
in a fight. There were no eyewitnesses to the stabbing, but
witnesses did testify that Libby had been seen carrying a knife
before the stabbing, that he had been seen running away from
the site of the fight with blood on his clothes, that he was seen
holding a knife shortly after the stabbing, that he admitted
having stabbed the victim, and that he threatened anyone who
might “snitch” on him. There was also testimony that he
stabbed the victim because he thought the victim was about to
jump him from behind and because he believed the victim was
beating up a third person. The trial judge instructed the jury
with respect to murder and voluntary manslaughter. The
murder instruction included the following:
Murder is the killing of a human being without legal justification or without excuse
or without such extenuating circumstances as may reduce the crime to
manslaughter; but with what is called in the law malice aforethought.
Any intentional killing of a human being without legal justification or excuse and
with no extenuating circumstances sufficient in law to reduce the crime to
 manslaughter is malicious.
If the wicked intent to do injury to another person precedes the act by which the
injury was done, it is malice aforethought. If the homicide is committed without
legal justification or, that is to say, without due authority of law and not in self
defense, and there is no issue here of self defense, nor in the heat of passion on
great provocation, but with the specific intent to take the life of the one killed, or an
unlawful act, the natural consequence of which would be to deprive another
person of life, it is murder.
Malice is implied in every deliberate cruel act by one against another.
The judge then gave the manslaughter instruction explaining
that a killing under the influence of extreme emotional distress
was manslaughter and that if there were evidence of extreme
emotional distress, the jury could convict the defendant only of
manslaughter unless the prosecution proved beyond a
reasonable doubt that the killing was not done under the
influence of extreme emotional distress. The judge told the jury
to consider first whether the defendant was guilty of murder
and then to consider the manslaughter charge unless the jury
agreed that the defendant was guilty of murder. The judge also
told the jury that to find the defendant guilty of any crime the
prosecution had to prove each element beyond a reasonable
doubt.
What constitutional challenges can the defendant make to
these instructions?

862

ASSESSMENTS
A-10.1. Proof Beyond a Reasonable Doubt. New State's statute requires criminal
defendants who raise the defense of duress to prove that defense by clear and convincing
evidence. This requirement violates constitutional due process. True or False?
A-10.2. Proof Beyond a Reasonable Doubt. Under New State's Criminal Code, a person
will be guilty of aggravated assault if he “maliciously inflicts grievous bodily harm on another
person.” The Code also provides that the defendant will be acquitted of aggravated assault
charges if he proves self-defense by a preponderance of the evidence. This proof
requirement is unconstitutional. True or False?
A-10.3. Presumptions in Criminal Cases. Permissive presumptions can be used by the
prosecution in criminal trials so long as they satisfy the preponderance standard in
connecting basic to presumed facts and make it clear to the jury that it should acquit the
defendant when it has a reasonable doubt as to one of the elements of the alleged crime.
True or False?
A-10.4. Presumptions in Criminal Cases. The New State's Patterned Jury Instructions
authorize judges to instruct jurors that they can, but are not obligated, to presume that a
person intends to bring about the ordinary consequences of his actions and to illustrate this
presumption by a person who fires a gun at another human being.
Using this presumption in murder cases would be:
A Unconstitutional because it would reduce the prosecution's burden of proving criminal
intent.
B Unconstitutional because the instruction would imply without evidence that a person
who shoots another human being normally intends to kill him.
C Unconstitutional because the jury might think that they have to follow the presumption
when the defendant produces no evidence to the contrary.
D Perfectly constitutional if the judge also tells the jury that it is the prosecution's burden to
prove the defendant's intent to kill beyond a reasonable doubt.
A-10.5 Presumptions in Civil Cases. Under West Virginia Law, a plaintiff suing a car
manufacturer in products liability needs to prove by a preponderance of the evidence that the
alleged car defect “was a factor in causing some aspect of the plaintiff's harm.” This showing
activates a permissive presumption of causation that allows the jury to find the defendant
responsible for the entire damage suffered by the plaintiff even when there is no evidence
linking that damage to the car defect.
This presumption is:
A Constitutional.
B Unconstitutional because it violates due process.
C Unconstitutional because it discriminates against defendants and thereby violates equal
protection.
D Constitutionally suspect and may be voided on constitutional grounds following a
thorough judicial inquiry into its motives and implications.

863
A-10.6. Presumptions in Civil Cases. Res ipsa loquitur is:
A A mandatory presumption that shifts the burden of persuasion to the defendant on the
issue of negligence.
B A permissive presumption that allows the plaintiff to move her case to the jury on the
issue of negligence and have the judge instruct the jury that it is allowed, but not
obligated, to find the defendant negligent when the basic facts are proven by a
preponderance of the evidence.
C Merely a judicial comment on the plaintiff's circumstantial evidence that identifies the
defendant as prima facie negligent.
D None of the above.
A-10.7. Affirmative Defenses. You are defending a company sued for a breach of contract.
The company could not carry out its contractual obligations because of unexpected military
activities in the Middle East that blocked its access to oil supplies. This development made
two equally plausible arguments available: (1) Under the contract's proper interpretation, the
company's nonperformance did not amount to a breach; (2) the company's nonperformance
was completely excused by the impossibility and frustration of purpose defenses.
Your best trial strategy is:
A To assert and subsequently try to prove both arguments.
B To assert and subsequently try to prove Argument (2) only.
C To assert and subsequently try to prove Argument (1) only.
D To find more information in the hopes to improve the choice between the two arguments.

ANSWERS
A-10.1. FALSE. Duress is an affirmative defense, which the defendant can be
constitutionally required to prove. Dixon v. United States, 548 U.S. 1, 10-11 (2006).
A-10.2. TRUE. Here, there is a complete overlap between “malice” as an element of the
crime and lack of self-defense. Put differently, self-defense negates malice as a matter of the
crime's definition. Hence, requiring a defendant to prove self-defense by a preponderance of
the evidence is similar to requiring him to prove by a preponderance of the evidence that he
acted without malice. This requirement violates due process, as interpreted in Mullaney, see
supra at pages 839-840, because “malice” is an element of the crime that the prosecution
must prove beyond a reasonable doubt.
A-10.3. TRUE. As per Sandstrom v. Montana, 442 U.S. 510 (1979), and County Court of
Ulster County v. Allen, 442 U.S. 140 (1979).
A-10.4. The best answer is D, as per Sandstrom v. Montana, 442 U.S. 510 (1979).
A-10.5. The best answer is A. States are free to allocate burdens of proof in civil cases as
they deem fit. Lavine v. Milne, 424 U.S. 577, 585 (1976).

864
A-10.6. The best answer is B, as explained in our discussion of the res ipsa presumption.
See supra at page 829.
A-10.7. The best answer is C. Argument (1) will negate the plaintiff's breach allegation, which
the plaintiff needs to prove by a preponderance of the evidence. If factfinders remain
undecided about that allegation, the defendant will win the case. Argument (2), on the other
hand, raises an affirmative defense that the defendant would have to prove by a
preponderance of the evidence. Raising and trying to prove both arguments would not be a
good strategy. Here is why: When the defendant fails to convince factfinders that Argument
(1) is as likely as not, it would also fail to prove Argument (2) that requires preponderance of
the evidence. From the defendant's perspective, therefore, pursuing Argument (2) is either
bad or superfluous (given that Argument (1) is equally plausible). Because Argument (2) is
never a good strategy, Answer D (“more information needed”) is false as well.

1. We are indebted for what follows, including the graphs, to Richard S. Bell, Decision
Theory and Due Process: A Critique of the Supreme Court's Lawmaking for Burdens of
Proof, 78 J. Crim. L. & Criminology 557 (1987).
 2. “If, however, you are satisfied from the medical and other evidence presented that
plaintiff is suffering from a loss of memory that makes it impossible for him to recall events at
or about the time of the accident and that the injuries plaintiff incurred in the accident were a
substantial factor in causing his loss of memory, the plaintiff is not held to as high a degree of
proof as would be a plaintiff who can himself describe the occurrence.”
3. U.S. Const. amend. VIII (“Excessive bail shall not be required, nor excessive fines
imposed, or cruel and unusual punishment inflicted.”).
865

CHAPTER ELEVEN
JUDICIAL NOTICE
Consider a case in which a large-scale livestock operation is being
sued for allowing agricultural wastes to run off the animal lot into
nearby waterways. Suppose the plaintiff is required to establish, as
part of its case, the amount of rainfall that fell in the area during the
preceding year. It seems as though there should be a clear,
undisputed answer to the rainfall question; yet for the plaintiff to
prove the rainfall amount using the kinds of evidence you have
studied thus far might be difficult or exceedingly costly. There is no
percipient witness who could give precise eyewitness testimony
about how many inches of rainfall occurred. The plaintiff might have
to go to the trouble of retaining an expert simply to establish an
undisputable fact.
Fortunately, the Federal Rules provide a procedure that might
simplify proof in this situation, known as “judicial notice.” Judicial
notice encompasses a range of situations in which judges take
official cognizance of propositions of fact and of law. FRE 201,
discussed in Section A, deals with judicial notice in the strict sense of
a formal judicial determination that a particular “adjudicative” fact is
“not subject to reasonable dispute.” However, the term judicial notice
is also often used more loosely to refer to other forms of judicial
factfinding not addressed by the Federal Rules of Evidence. These
are discussed in Sections B and C, infra.

A. JUDICIAL NOTICE OF ADJUDICATIVE FACTS

1. FRE 201
RULE 201. JUDICIAL NOTICE OF ADJUDICATIVE FACTS
 (a) Scope. This rule governs judicial notice of an adjudicative fact only, not a
legislative fact.
(b) Kinds of Facts That May Be Judicially Noticed. The court may judicially notice a
fact that is not subject to reasonable dispute because it:

866
(1) is generally known within the trial court's territorial jurisdiction; or
(2) can be accurately and readily determined from sources whose accuracy cannot
reasonably be questioned.
(c) Taking Notice. The court:
(1) may take judicial notice on its own; or
(2) must take judicial notice if a party requests it and the court is supplied with the
necessary information.
(d) Timing. The court may take judicial notice at any stage of the proceeding.
(e) Opportunity to Be Heard. On timely request, a party is entitled to be heard on the
propriety of taking judicial notice and the nature of the fact to be noticed. If the court
takes judicial notice before notifying a party, the party, on request, is still entitled to be
heard.
(f) Instructing the Jury. In a civil case, the court must instruct the jury to accept the
noticed fact as conclusive. In a criminal case, the court must instruct the jury that it may
or may not accept the noticed fact as conclusive.

2. Explanation of FRE 201(a) and (b)

FRE 201 authorizes, and in some circumstances requires, the judge
to instruct the jury to accept certain facts as true, if those facts are
“not subject to reasonable dispute.” The judge may make such a
ruling whether requested or not, but must make such a ruling on
request of a party who properly demonstrates the undisputable
quality of the fact. In criminal cases, the judge must qualify the
instruction by advising the jury that it “may,” but need not, accept the
fact as true.
a. Types of Adjudicative Facts That Are Frequently Noticed
In theory, a court could take judicial notice of any evidentiary facts
or propositions of background knowledge that meet the high
standards of certainty required by FRE 201(b). In practice, the kinds
of facts judicially noticed under this rule tend to fall into a predictable
set of broad categories: business or government custom; calendar
dates and time limits; product characteristics in copyright, patent,
and trademark litigation; current events; general principles of
economics and economic information; fees and salaries; geography;
historical information; judicial records and proceedings; medical
information; official records; scientific facts and principles, and
performance of scientific equipment; and weather.
The rise of the Internet as a research tool has provided judges and
lawyers with quick and easy access to a wealth of judicially
noticeable facts, which might otherwise have required time-
consuming research. Courts frequently rely on government and
corporate websites, online news sources, and tools such as Google
Maps to take judicial notice of facts that meet the criteria of FRE 201.
See, e.g., Benavidez v. City of Irving, 638 F. Supp. 2d 709, 721 (N.D.
Tex 2009) (census data from government website); Sprint Nextel
Corp. v. AT&T Inc. 821 F. Supp. 2d 308, 325 n.29 (D.D.C.

867

2011) (news reports); Rindfleisch v. Gentiva Health Sys., Inc., 752

F. Supp. 2d 246, 259 n.13 (E.D.N.Y. 2010) (“Courts commonly use
internet mapping tools to take judicial notice of distance and
geography.”). Indeed, in some circumstances it may be an abuse of
discretion not to take judicial notice of such facts. See, e.g., O'Toole
v. Northrop Grumman Corp., 499 F.3d 1218, 1225 (10th Cir. 2007)
(abuse of discretion in failing to take judicial notice of earnings-
history data available on the Internet); but see Lodge v. Kondauer
Capital Corp., 750 F.3d 1263 (8th Cir. 2014) (no abuse of discretion
in declining to take judicial notice when plaintiff failed to provide
necessary information to do so). Whether such facts otherwise meet
the criteria of FRE 201—in particular, whether the source's “accuracy
cannot reasonably be questioned”—will depend on the particular
website or source and the facts of the case. See generally Jeffrey
Bellin & Andrew Guthrie Ferguson, Trial by Google: Judicial Notice in
the Information Age, 108 Nw. U. L. Rev. 1137 (2014).
b. The Scope of FRE 201(a): What Are Adjudicative Facts?
 FRE 201(a) states that the rule applies only to those situations in
which judges take official cognizance of “adjudicative facts,” but the
rule itself does not define that term. Adjudicative facts are those facts
that the jury typically decides at trial. Adjudicative facts may be either
the alleged facts of consequence that are the essential elements of a
dispute under the substantive law or the evidentiary facts that are
relevant to prove those facts of consequence. As described by the
Advisory Committee Note to FRE 201(a):
Adjudicative facts are simply the facts of the particular case . . . . [T]he adjudicative
facts are those to which the law is applied in the process of adjudication. They are the
facts that normally go to the jury in a jury case. They relate to the parties, their
activities, their properties, their businesses. [2 Kenneth Davis, Administrative Law
Treatise 353 (1958).]
You know by now from your study of evidence how broad this
concept of adjudicative facts really is—potentially any fact relevant to
a dispute under FRE 401 would be an adjudicative fact and could be
subject to FRE 201. The real limits to the scope of this rule come
from FRE 201(b).
c. The Scope of FRE 201(b): The Required State of Knowledge of Adjudicative
Facts That May Be Judicially Noticed
If a party requests the court to take judicial notice of an
adjudicative fact pursuant to FRE 201, the party must persuade the
court that the fact satisfies the standards of FRE 201(b). The fact
must be indisputable as defined by the rule; it must not be subject to
“reasonable dispute.” That indisputability can be established through
either of two means. First, the fact may be the kind of fact that is
“generally known within the territorial jurisdiction of the trial court.”
For example, in Goldblatt v. Fed. Deposit Ins. Corp., 105 F.3d 1325,
1329 n.3 (9th Cir. 1999), the court took judicial notice of the interest
bearing nature of money market accounts. By contrast, in Carley v.
Wheeled

868

Coach, 991 F.2d 1117, 1126 (3d Cir. 1993), the appellate court
concluded that the trial court had erred in taking judicial notice of the
“well known rollover propensities of vehicles having a high center of
gravity.” According to the court, “[m]ost people probably know little, if
anything, about how high centers of gravity cause vehicular
accidents.” The parties thus had to produce evidence on this issue,
and the jury would ultimately decide it.
The second way to establish indisputability is by reference to
“sources whose accuracy cannot reasonably be questioned.” For
example, in United States v. Pozsgai, 999 F.2d 719, 731 (3d Cir.
1993), the appellate court held that the trial court had properly taken
judicial notice of the fact that the Pennsylvania Canal was or could
be used in interstate commerce. The status of the Canal in interstate
commerce was established by two scholarly history books and a
U.S. Army Corps of Engineers report. As a result, the parties needed
to produce no evidence on this issue, and the jury was instructed as
to its truth. If indisputability cannot be established under either of
these standards, the factual issue is subject to proof at trial.
These two criteria significantly narrow the scope of facts subject to
judicial notice from FRE 201(a)'s broad reference to “adjudicative
facts.” Facts that are “generally known” or that are established by
“unquestionably accurate” sources tend to be what we would think of
as “background information.” Such facts may be highly relevant and
indeed essential to a party's claim or defense, but they are probably
not unique to the case.

3. An Application of FRE 201(a) and (b)

IN RE THIRTYACRE

154 B.R. 497 (Bankr. C.D. Ill. 1993)

W V. A , Bankruptcy Judge.
[In a bench trial, a judgment creditor sought a finding from the
Bankruptcy Court that the debt was nondischargeable as a willful
and malicious injury, because it was based on a state court judgment
that the debtor Thirtyacre had assaulted the creditor. The debtor
Thirtyacre's defense was that his mental capacity to form an intent to
act in a willful and malicious manner was impaired because he had
been taking the drug Pamelor and drinking alcohol at the time of the
assault. Thirtyacre asked the court to take judicial notice of the
effects of Pamelor.] . . .
The first evidentiary issue is whether this Court should take judicial
notice of the drug manufacturer's pamphlet for the drug Pamelor.
This pamphlet contains sections entitled: Description, Actions,
Indications, Contraindications, Warnings, Precautions, Adverse
Reactions, Dosage and Administration, and How Supplied. The
Defendant [Mr. Thirtyacre] asked this Court to take judicial notice of
the definition of Pamelor. In effect he was asking this Court to take
judicial notice of the matters in the pamphlet, including that the drug
when taken with an excessive consumption of alcohol may have
adverse consequences.

869

Rule 201 of the Federal Rules of Evidence governs judicial notice

of adjudicative facts . . . .
Clearly the pamphlet does not fall within the scope of the rule . . .
.It cannot be said that the effects of Pamelor when taken with an
excessive consumption of alcohol are generally known within the
jurisdiction of this Court. As stated in McCormick on Evidence:
[T]he more reflective opinions speak in terms of the knowledge of “most men,” or of
“what well-informed persons generally know,” or “the knowledge that every intelligent
person has.”
The information contained in the pamphlet does not fall within those
standards.
Nor can it be said that the effect of the drug when taken with an
excessive consumption of alcohol can be accurately or readily
determined by resorting to the pamphlet. It is appropriate to take
judicial notice of a proposition of science, but the Defendant's
request does not fall within that category. Rather, the Defendant asks
this Court to take judicial notice from the pamphlet of the effect on
the Defendant of his using the drug while drinking. It does not follow
from the pamphlet what the specific effect of the Defendant's use
while drinking might be.
As the court stated in Clark v. South Central Bell Tel. Co. . . . :
F.R.E. 201 states that facts may be noticed if they are “capable of accurate and ready
determination by resort to sources whose accuracy cannot reasonably be questioned.”
For a Court to notice facts judicially, if they are not matters of general knowledge, the
sources of those facts must be placed before the Court. If a party places the source
before the Court and requests judicial notice, the Court must take it if the facts are
susceptible of judicial notice.
This standard of “indisputability” was discussed in Louisell & Mueller,
Federal Evidence, §57, Rule 201, p.437:
Facts may be indisputable within the meaning of Rule 201 because (even though not
generally known) they can be verified by resort to sources whose accuracy cannot
reasonably be questioned. At one time courts indulged in the obvious fiction of
consulting sources to refresh recollection, but it is clear enough that courts in reality
simply inform themselves of facts which nobody is likely to carry around in his head
from whatever sources the trial judge deems to be unquestionably accurate. Almanacs,
encyclopedias, calendars, historical works and charts tabulating information deduced
from the application of the laws of physics form only a part of what must be a list too
long to be worth enumerating of sources to which a court may in proper circumstances
resort for the purpose of deriving judicially noticeable information.
If the Defendant had submitted information regarding Pamelor that
had been obtained from the FDA or a medical dictionary (as he
represented it was), then perhaps it would have been admissible.
But for this Court to find that the manufacturer's own representations
regarding the drug are “sources whose accuracy cannot reasonably
be questioned” within the meaning of FRE 201(b) goes far beyond
any reported application of that rule. There is no element of
objectivity with such an application. In United States v. Houston, . . .
the court held that judicial notice could be taken of a two-page
publication setting out information pertaining to the background,

870

pharmacological information, pattern of use, and subjective effects of

the drug phencyclidine, finding that the information was factual and
could be readily obtained from the National Institute of Drug Abuse.
The court in that case was willing to go beyond the record and do its
own independent verification. In this Court's view, the burden is on
the party seeking to have the court take judicial notice of the fact to
put the sources before the court and establish their complete
accuracy.

NOTES AND QUESTIONS

1. As Thirtyacre's lawyer, how would you state the proposition of
fact that you would ask the court to judicially notice? Why is this an
adjudicative fact?
2. If you sought judicial notice of this fact on behalf of Thirtyacre,
what kind of information might you have attempted to present to
satisfy FRE 201(b)? What kind of instruction, in a jury trial, would you
request from the court if you were able to satisfy FRE 201? And what
would you do if the court refused to take judicial notice of this fact?
3. The Thirtyacre opinion lists the kinds of sources of information
that judges typically use to satisfy the “general knowledge” and
“accurate and ready determination” standards of FRE 201(b). The
more specifically the facts concern the individual litigant, the more
difficult it is to satisfy these standards. Storm Plastics, Inc. v. United
States, 770 F.2d 148, 155 (10th Cir. 1985) (trial judge improperly
took judicial notice of the quality of plaintiff's fishing lures, as this fact
was not generally known in the community nor one capable of
accurate determination by plainly accurate sources). If sources are
used to establish propositions of generalized background
knowledge, then they must be well recognized. United States v.
Simon, 842 F.2d 552, 555 (1st Cir. 1988) (trial judge not required to
take judicial notice of the fact that Rastafarians use marijuana as
part of their religion because this fact is not generally known and the
offered sources—a 1967 dissertation and a 1960 research paper—
were “hardly sources whose accuracy cannot reasonably be
questioned”). And if judges take judicial notice of adjudicative facts
on the basis of their own personal experience, they are likely to be
reversed. United States v. Lewis, 833 F.2d 1380, 1384 (9th Cir.
1987) (judge erred in finding a confession to be involuntary by taking
judicial notice of the effects of general anesthetic following an
operation, relying on his own personal experience).
4. Explanation of FRE 201(c) and (e)
Subsection (c) of FRE 201 provides that a court may take judicial
notice of a fact on its own initiative; the court may determine that a
fact should be noticed, and it may obtain information from its own
investigation to determine whether the standards of FRE 201(b) are
met. The judge in Thirtyacre refused to engage in his own search for
information concerning the indisputability of the Pamelor pamphlet.
He held instead that “the burden is on the party seeking to have the
court take judicial notice of the fact to put the sources before the
court and establish their complete accuracy.” This

871

holding is consistent with FRE 201(c)(1) and (2), which plainly imply
that a court is not required to take judicial notice on its own initiative.
Under subsection (c)(2), the court must take judicial notice of an
adjudicative fact only when the party seeking notice has provided the
information necessary to satisfy FRE 201(b).
FRE 201 contains only minimal direction for the court on the
process to be followed before notice of an adjudicative fact is taken.
Because of the close connection of these facts to the matters in
dispute, they will usually have an immediate impact on the litigants'
case. Therefore FRE 201(e) provides that a party, upon timely
request, has the right to be heard on the “propriety of taking judicial
notice and the nature of the fact to be noticed.” For example, if
defendant Thirtyacre had produced scientific literature concerning
the effects of taking Pamelor with alcohol, the plaintiff could have
requested the opportunity to attack the accuracy of defendant's
sources or to produce other contradictory information. This
opportunity must be given upon the party's request whether the
judicial notice was initiated by the opposing party under subsection
(c)(1) or the judge under (c)(2). The “opportunity to be heard” does
not necessarily mean the right to a formal hearing, but simply the
right to object to judicial notice. See American Stores v. Commission
of Internal Revenue Service, 170 F.3d 1267 (10th Cir. 1999).
5. Explanation of FRE 201(d) and (f)
a. Judicial Notice of Adjudicative Facts in Civil Cases:Mini Directed Verdicts

Judicial notice of adjudicative facts has two major effects on the

civil trial process: (1) It simplifies the jury's factfinding role because it
removes a fact from dispute and (2) it relieves a party both from the
burden of producing evidence of the noticed fact to the jury and from
the threat of having the jury hear contradictory evidence from the
opponent. Remember that the party must present evidence to the
judge that satisfies the standards of FRE 201(b). Under the first
sentence of FRE 201(f), once the judge decides that these standards
are satisfied, the jury will be instructed that it must accept the noticed
fact. The party's evidence need not be presented to the jury; the
opponent may present no contradictory evidence; no closing
argument need be made in support of the fact; and no argument can
be made against it. In effect, the court is directing a verdict on the
judicially noticed fact.
b. Judicial Notice of Adjudicative Facts in Criminal Cases: Judicial Comments
Judicial notice in criminal cases poses somewhat different
problems from judicial notice in civil cases. The second sentence of
FRE 201(f) provides: “In a criminal case, the court must instruct the
jury that it may or may not accept the noticed fact as conclusive.”
(Emphasis added.) It may seem contradictory to tell the jury that it
“may” accept a fact that has been judicially noticed. After all, judicial
notice is supposed to dispose of issues. The explanation for this
apparent incongruity is that juries are given

872

greater deference in criminal cases than in civil. Indeed, it is

frequently said that there are no directed verdicts against criminal
defendants, and as we have just observed, to take binding judicial
notice of a fact is to direct a verdict on that fact. Thus, treating
judicial notice as binding would seem to conflict with the
conventional view of the role of jurors in criminal cases. United
States v. Mentz, 840 F.2d 315, 318 (6th Cir. 1988) (a conclusive
instruction to the jury on a noticed fact in a criminal case is an error
of constitutional magnitude). If the judge takes judicial notice in a
criminal case, she will call the noticed fact to the jury's attention in
something like the following terms:
You may accept the court's declaration as evidence and regard as proved the fact or
event which has been judicially noticed. You are not required to do so, however, since
you are the sole judges of the facts.

United States v. Chapel, 41 F.3d 1338, 1339 (9th Cir. 1994). Such an
instruction allows the judge, in effect, to make a nonbinding
comment that the judicially noticed fact is obvious, generally known,
or indisputable.
c. Timing of Judicial Notice

Pursuant to FRE 201(d), judicial notice may be taken at any time in

the proceeding. This means that adjudicative facts may be noticed
during pretrial proceedings, such as in motions to dismiss, to narrow
the scope of discovery, or for summary judgment. See, e.g., Milo &
Gabby, LLC v. Amazon.com, Inc., 12 F. Supp. 3d 1341 (W.D. Wash.
2014) (explaining that district courts may use FRE 201(b) to take
judicial notice of documents mentioned in pleadings “when there is
no factual dispute about the documents' authenticity or
enforceability.”) In a jury trial, facts are usually noticed before the
court gives its instructions so that the proper instructions may be
given. In a bench trial, notice can be taken or refused at any time
during the judge's deliberations, as was done in the Thirtyacre case.
Judicial Notice to Preserve Civil Verdicts. At least in civil cases,
courts may also take judicial notice after a case has been submitted
to the jury, after the jury's verdict has been rendered, or on appeal,
even if not requested during the trial. When there is a gap in a
winning party's proof, judicial notice of that fact could be taken by
either the trial court or the appellate court in order to protect the
jury's verdict. If the gap in proof is discovered after a party moves for
a judgment as a matter of law, the trial court might be persuaded to
take judicial notice of the missing fact by the nonmoving party as a
way to fend off the judgment as a matter of law. FRE 201(d) has
even been construed to allow an appellate court to take judicial
notice where the other criteria for judicial notice are satisfied. See,
e.g., Gustafson v. Cornelius Co., 724 F.2d 75, 79 (8th Cir. 1983)
(appellate court took judicial notice of an unfair labor practice charge
for the purpose of determining date at which a cause of action
accrued); Havens Steel Co. v. Randolph Eng'g Co., 813 F.2d 186
(8th Cir. 1987) (appellate court took judicial notice of the average
annual prime interest rate in rejecting the defendant's claim that the
proof of damages at trial had been too imprecise); but see Colonial
Leasing

873

Co. v. Logistics Control Group Int'l, 762 F.2d 454, 461, modified,
770 F.2d 479 (5th Cir. 1985) (taking judicial notice after trial would
raise due process concerns).
Judicial Notice to Preserve Criminal Verdicts. Some courts
have taken the same verdict-saving approach in criminal cases in
which prosecutors have failed to prove the facts necessary for
federal jurisdiction. United States v. Lavender, 602 F.2d 639 (4th Cir.
1979) (court took judicial notice that the Blue Ridge Parkway was
located in federal territory); United States v. Piggie, 622 F.2d 486,
487-488 (10th Cir. 1980). Proponents of this approach argue that it is
consistent with the spirit of judicial notice to promote judicial
efficiency by obviating the need for evidentiary proof of irrefutable
facts.
But such an approach seems to violate the clear intent of the
second sentence of subsection (f), which prohibits binding judicial
notice in criminal cases in order to preserve the jury's role to decide
all issues of fact in criminal cases. See United States v. Dior, 671
F.2d 351, 358 n.11 (9th Cir. 1982); United States v. Jones, 580 F.2d
219 (6th Cir. 1978).
 KEY POINTS
1. FRE 201 provides that courts may take judicial notice of
adjudicative facts. Adjudicative facts are those facts that are
usually decided by the jury.
2. Facts judicially noticed pursuant to FRE 201(b) must be
established as certain beyond reasonable dispute, and this
standard of certainty must be satisfied on the basis of general
knowledge within the jurisdiction or from sources whose
accuracy cannot reasonably be questioned.
3. In civil cases, the judge will instruct the jury that it must accept
a judicially noticed fact as true. In criminal cases, the judge
will instruct the jury that it may, but need not, accept the
noticed fact as true.
4. Facts may be judicially noticed at any time, but if the winning
party has failed to prove an essential element at trial, the
taking of judicial notice to preserve the winning party's jury
verdict may violate the constitutional rights of the opponent in
both criminal and civil cases.

NOTES AND QUESTIONS

1. Although the second sentence of FRE 201(f) applies to criminal
cases generally, the underlying concern is the supposed tension
between binding judicial notice and a criminal defendant's right to
jury trial. Compare FRE 201(f) with Md. R. Evid. 5-201(g), which
makes judicial notice nonbinding only when the noticed fact is
“adverse to the defendant.”
2. Particularly in light of the fact that courts regularly direct verdicts
against criminal defendants by not instructing juries on defenses for
which there is insufficient evidence, why is it arguably
unconstitutional for courts to take binding judicial notice in criminal

874
 cases? Should it matter whether the noticed fact is a jurisdictional
matter (e.g., the location of the crime) or a substantive element (e.g.,
the value of stolen goods)?
3. Even if binding judicial notice adverse to criminal defendants is
not unconstitutional, one may for prudential reasons want to avoid
restricting the scope of the jury's factfinding role. If so, would it be
preferable to ban any form of “judicial notice” that is adverse to
criminal defendants? Consider whether a nonbinding judicial notice
instruction like the one quoted at page 872, supra, is likely to
contribute to the jury's rational decisionmaking.
4. Since the last sentence of FRE 201(f) calls for what is in effect
judicial comment, does FRE 201 imply that all judicial comment in
criminal prosecutions must satisfy the certainty requirements of FRE
201(b)?

PROBLEMS
11.1. Review the agricultural waste runoff hypothetical at the
beginning of this chapter. What sources might the plaintiff rely
upon to request that the court take judicial notice of the
amount of rainfall that occurred in the region the year
preceding the runoff event? Can the defendant object to
judicial notice without having a reasonable basis to dispute the
amount of rainfall asserted in plaintiff's request for judicial
notice?
11.2. The ship S.S. Norton broke from its moorings and ran
aground, releasing 200,000 barrels of crude oil into the ocean
near Guam. The owner, Kramden, sued the captain and the
charterers for negligence, arguing that mooring the ship in
Guam during the month of November—the peak of the
typhoon season—posed a great danger to both the cargo of
oil and the environment. At trial, the judge is asked to take
notice that Guam is seriously vulnerable to typhoons, and that
the month of November is the peak of the typhoon season.
Objection? What kind of sources might be found that would
satisfy FRE 201(b)?
11.3. In imposing sanctions against an extremely litigious inmate
and issuing an injunction against further filings without paying
full filing fees, the trial judge made a finding of fact that the
inmate had access to considerable sums of money. That
finding was based in part on the judge's judicial notice of a
local newspaper article describing the inmate as extremely
wealthy and quoting him as saying that he had made
thousands of dollars from his extortion activities in prison. Was
taking judicial notice proper?
11.4. In an age discrimination suit against Acme Aircraft Corp.,
defendant claims that the reason plaintiff lost his job was
inadequate performance and reduction in the workforce. To
support the latter claim, the defendant presents the court with
a newspaper article describing widespread layoffs at Acme
and asks the court to take judicial notice of the contents of the
article. What result?
11.5. In a suit against tobacco companies for injuries related to
smoking, the defendants request that the court take judicial
notice that since the late 1960s (when plaintiffs began
smoking) the health hazards and the addictive nature of
smoking have been common knowledge. Are these proper
matters for judicial notice?

875

11.6. The United States brought a civil action against Dr. Jones to
recover federal student loans that Jones had received from
the National Health Service Corps. Dr. Jones allegedly
breached his mandatory four-year contract of employment
with a community health center. The issue at trial was whether
Dr. Jones left the health center because of a salary dispute or
whether he was terminated because of attendance and other
problems, which would trigger an obligation to pay back his
loans. The district court granted summary judgment in favor of
the government by taking judicial notice of factual findings that
Jones was terminated for attendance and other problems.
 These findings had been made in an order entered by another
district court in a suit by Jones against the health center. Dr.
Jones contests this result on appeal. What result?
11.7. Defendant is charged with assault within federal territory. After
proof at trial that Raybrook Federal Prison was owned by the
federal government, the district court gave the following
instruction that removed the federal jurisdictional element from
defendant's assault charge:
The Government must prove the alleged assault took place within the special
maritime and territorial jurisdiction of the United States. This simply means that
the alleged assault must have occurred in any lands reserved or acquired for the
use of the United States and under the exclusive or concurrent jurisdiction
thereof. I charge you now that [Raybrook] is a place that falls within the territorial
jurisdiction of the United States. Therefore, if you find beyond a reasonable doubt
that the acted [sic] alleged occurred at [Raybrook], the sixth element of the
offense has been met.
On appeal, defendant contends that this instruction violated
FRE 201(f) and his constitutional right to be convicted by the
jury on proof beyond a reasonable doubt. What result?
11.8. Plaintiff has sued defendants alleging that they participated in
a scheme to defraud him through the fictitious sale of Nigerian
crude oil. Plaintiff asks the trial court to take judicial notice of
the following: (1) that at all times pertinent to the lawsuit, there
were Nigerian fraud scams perpetrated on people in the
United States and other countries in the world, and (2) that the
fraud scams involved, among other things, oil deals that never
materialized. To support this request for judicial notice plaintiff
has provided the trial judge with a congressional report dated
December 12, 1995, a Senate committee report, at least two
newspaper articles, a videotape from the television news
magazine “20/20,” a videotape from the television news
magazine “60 Minutes,” and a videotape from the British
Broadcasting Corporation. What result?

B. JUDICIAL NOTICE AS PART OF JUDICIAL DECISIONMAKING

In performing their judicial function, judges must take official account
of propositions of law, of generalized knowledge, and of specific
facts in many different contexts.

876

Although the types of propositions, the sources from which they are
established, and the uses to which they are put in judicial
decisionmaking vary enormously, all of these judicial behaviors are
sometimes called “taking judicial notice,” even though FRE 201 does
not—and often, as a practical matter, could not—apply. For example,
if preliminary facts necessary to make admissibility decisions had to
meet the certainty standard of FRE 201(b), much currently
admissible evidence would be inadmissible. Similarly, if the factual
premises underlying a court's interpretation of law had to meet the
FRE 201(b) standard, it would be virtually impossible for courts to
engage in the process of law interpretation. This section briefly
discusses some of the contexts in which judges take official account
of facts and of law—sometimes, but not always, under the guise of
taking “judicial notice”—without the necessity of complying with FRE
201. As you can imagine, this loose and inconsistent usage of the
term judicial notice occasionally creates confusion.
A caveat is in order about the materials that follow. Outside the
area of adjudicative facts, the term judicial notice is most commonly
associated with “legislative facts,” which we discuss in subsection 2,
infra. Keep in mind, though, that (1) there is nothing analytically
significant about the use of the term judicial notice for any of the
factfinding that we discuss here and (2) there is nothing analytically
significant about the distinct categories of judicial fact finding that we
describe here. Rather, the controlling and only analytically significant
issue should be whether the judge is making a factual finding that
would normally be made by a jury or whether the judge is making the
finding for some other purpose. In the former situation FRE 201
applies; in the latter, it does not. If there is uncertainty about whether
the finding is an adjudicative fact—that is, a “jury issue”—the
uncertainty has nothing to do with judicial notice. Rather, the
uncertainty is about application of the criteria for allocating fact
finding generally between judge and jury.
For the leading scholarly critique of the limited scope of FRE 201 in
light of these broader notions of “judicial notice,” see Kenneth C.
Davis, Judicial Notice, 1969 Law and the Soc. Order 513 (1969); and
Dennis J. Turner, Judicial Notice and Federal Rule of Evidence 201
—A Rule Ready for Change, 45 U. Pitt. L. Rev. 181 (1983).

1. Judicial Cognizance of Common Knowledge Without Formal

Judicial Notice
a. The Jury's General Background Knowledge

We know that when juries decide questions of fact they must rely
on their own generalized knowledge and experience to make the
inferences necessary to jury reasoning. The jury's background
knowledge and experience are largely unexamined by the judicial
system. In a few contexts, however, judges do consider what
common generalized knowledge the jury can be assumed to have.
This is sometimes called taking judicial notice of such common
knowledge, although FRE 201 does not apply and the propositions
relied on could not possibly satisfy the rule's standards of certainty.

877

For example, when judges rule on questions of relevance in

admitting evidence, they will occasionally articulate the generalized
background knowledge that they assume the jurors can use to make
the necessary inferences. And when there is a gap in proof to
sustain a verdict, the court may find that, based on all the evidence,
the jury's background knowledge could fill the gap. In United States
v. Luckenbill, 421 F.2d 849 (9th Cir. 1970), the defendant was
charged with forcing an accomplice to forge an endorsement on a
government check in Spokane, Washington. No evidence was
presented that the crime occurred in Spokane, which was necessary
for venue. However, references in testimony to areas called “Nine
Mile” and “Seven Mile” (areas known to be close to Spokane) were
sufficient, the court held, to justify the jury in finding that the crime
took place in Spokane.
Consider also the problem of jurors relying on unique personal
knowledge or their independent investigatory information. If such
independently obtained information is not general or common
enough for the judge to assume that reasonable jurors already share
it, then its injection into the jury room may violate the principles of
public, adversarial proof-taking. In Thomas v. Kansas Power & Light
Co., 340 P.2d 379 (Kan. 1959), for example, the court granted a new
trial when it discovered that a juror had borrowed a book on
electricity and had shared information on the arcing characteristics of
electricity with other jurors.
b. Judges' Own Background Knowledge

When judges decide questions of fact, they must draw inferences

on the basis of their own generalized knowledge and experience.
Commentators sometimes refer to the process of using such
background knowledge and experience as judicial notice:
When the judge or jury use their pre-existing knowledge, they are said to be taking
“judicial notice” of the facts thus utilized. Probably 99% of the judicial notice taken could
be called “tacit” or “unconscious” judicial notice; that is, the process goes on without
anyone being aware that reliance is being placed on extra-record facts. [21 Charles A.
Wright & Kenneth W. Graham Jr., Federal Practice and Procedure §5102, at 460
(1990).]
As the Advisory Committee Note to FRE 201(a) makes clear, the
rigors of FRE 201 do not apply: “It is apparent that this use of non-
evidence facts in evaluating the adjudicative facts of the case is not
an appropriate subject for a formalized judicial notice treatment.”
Unlike juries, however, judges must account for their decisions.
Frequently, judges will articulate in their judicial opinions the
background generalizations that they have used in their factfinding.
Since FRE 201 does not apply, these generalizations are reviewed
on appeal for their reasonableness. If reasonable, appellate courts
will defer to the trial court's use of them under the deferential
standard of “abuse of discretion.” But what if a judge's background or
experience is relatively unusual, giving the judge a unique factual
perspective on the case? Should it be sufficient that the judge's
factfinding is reasonable, or should any unique factual assumptions
have to satisfy the certainty criteria of FRE 201(b)? Some of these
issues are raised in the following case.

878

IN RE MARRIAGE OF TRESNAK

297 N.W.2d 109 (Iowa 1980)

M C , Justice.
This appeal involves a parental dispute over custody of two sons,
Rick, age eleven, and Ryan, age nine. The parents are Emil James
Tresnak (Jim) and Linda Lou Tresnak (Linda) who were married in
1965. In the August 1979 decree dissolving the marriage, the trial
court awarded custody of the children to Jim. Linda appeals. We
reverse and remand . . . .
In awarding custody of the children to Jim, the trial court said:
The Petitioner at this time in life now desires to continue her education by attending law
school at the University of Iowa. Although this is commendable insofar as her ambition
for a career is concerned, in the opinion of the Court, it is not necessarily for the best
interest and welfare of her minor children, who are now ten and eight years of age.
Anyone who has attained a legal education can well appreciate the time that studies
consume. Although the Petitioner, during her undergraduate work, was able to care for
the children while attending the Northeast Missouri University at Kirksville by studying
after the children were placed in bed, the study of law is somewhat different in that it
usually requires library study, where reference material is required. Also, other than
time in class during the day, there will be study periods during the day in the library
necessary, as well as in the evening, and which would necessarily require the children
being in the hands of a babysitter for many hours a day when not attending school. The
weekends are usually occupied by study periods, and although the Petitioner has a
high academic ability, she will find that by reason thereof there will be additional
activities bestowed upon her, such as becoming a member of a law review, which is
time-consuming. Although the Petitioner may believe that she would not have to
engage in such, she by not doing so would be interfering with her own achievements
for her own benefit and welfare in future years.
In challenging the trial court's reasoning, Linda contends no
evidentiary support existed for the court's assumptions about law
school and the children's activities. She also contends the assumed
facts are not a proper subject of judicial notice. . . .
 The only evidence about the demands of law school appeared in
Linda's testimony. She acknowledged on cross-examination that law
school would require many hours of study. However, she also said
she did not expect to leave the children with babysitters often, she
would take them to the library with her if necessary, and she did not
believe her studies would interfere with her care of the children.
Thus, while the record supports the trial court's inference that law
school studies would occupy much of Linda's time, it does not lend
much support to the court's statements about the necessity of library
work away from the children, the likelihood of her involvement in
extracurricular activities, or the effect of such factors on her care of
the children.
Nor are these matters subject to judicial notice. “To be capable of
being judicially noticed a matter must be of common knowledge or
capable of certain verification.” Motor Club of Iowa v. Department of
Transportation, 251 N.W.2d 510, 517 (Iowa 1977). Courts are
permitted to dispense with formal proof of matters which everyone

879

knows. In this case, in overruling Linda's motion for new trial, the
trial court defended its findings by asserting a “personal
acquaintanceship with the studies of law school.” However, judicial
notice “is limited to what a judge may properly know in his judicial
capacity, and he is not authorized to make his (personal) knowledge
of a fact not generally or professionally known the basis of his
action.” Bervid v. Iowa State Tax Commission, 78 N.W.2d 812, 816
(1956). It is common knowledge in the legal profession that law
school studies are demanding and time-consuming, but the
requirements of a specific law school curriculum are not generally or
professionally known.
The trial court's statements about the necessity of extensive library
study and likelihood of Linda's work on the law review at the
University of Iowa law school are not matters of common knowledge
or capable of certain verification within the meaning of the judicial
notice principle. Because the statements have only tenuous support
in the evidence, they are entitled to little weight in evaluating the
merits of the custody dispute. In saying this, however, we do not
suggest the court could not consider the demands of law school
which were shown in the evidence. . . .
Because either parent would be a good custodian of the children,
the decision on the merits is difficult. Linda and Jim are stable and
responsible persons who love their children and are capable of
giving them adequate care. . . .
It is common knowledge that in many homes today both parents
have demanding out-of-home activities, whether in employment,
school or community affairs. Neither should necessarily be penalized
in child custody cases for engaging in such activities. In this case,
Linda seeks a legal education for self-fulfillment and as a means of
achieving financial independence. These goals are not inimical to the
children's best interests. Because the record shows she is capable
of continuing to provide the children with the same high quality of
care she has given them in the past, her attendance at law school
should not disqualify her from having their custody. We perceive no
reason for believing she will not give the children excellent care
during her law school years and thereafter.
. . . We believe the long-range best interests of the children will be
better served if Linda has their custody. Therefore we reverse the
trial court and remand to permit the court to enter appropriate orders
relating to child support and visitation.
Reversed and remanded.

NOTES AND QUESTIONS

The appellate court's reliance in Tresnak on “common knowledge”
seems somewhat ironic, given its discussion of the trial court's
decision. What kind of facts had the trial court judicially noticed? Can
you tell, based on the appellate opinion, whether FRE 201 should
have applied if the action were in federal court? Or was the court
taking cognizance of propositions of fact that were not adjudicative
facts? Would you say that the real lesson of cases like Tresnak is
that trial judges should not explain the basis of their reasoning if they
wish to avoid being reversed? Is that a disturbing commentary on the
legal system?

880

2. Judicial Cognizance of Legislative Facts

Courts must make factual assumptions to decide law. Thus, judges
take cognizance of propositions of fact when they interpret statutes
(facts about legislative history or policy, or about how the statute
affects the population) and when they develop principles of common
law (facts about changed societal or economic conditions that justify
a new legal rule). As an example, the Advisory Committee Note to
FRE 201(a) cites the Supreme Court case of Hawkins v. United
States, 358 U.S. 74 (1958), in which the Court relied on the following
proposition to uphold the spousal testimonial privilege: If spouses
testify against each other this would “be likely to destroy almost any
marriage.” Id. at 78. Another frequently cited example is the social
science research, showing that segregation creates a feeling of
inferiority, relied on in Brown v. Board of Education, 347 U.S. 483,
494 n.11 (1954), to hold that segregated schools are inherently
unequal. These propositions are rarely indisputable, and they are
necessary for judges to make sense of most questions of legal
policy. It is clear from the text of the rule, and from the Advisory
Committee Note, that FRE 201 does not apply to judges' use of such
facts; and even the rules of evidence do not limit the materials that
courts can use to resolve disputed issues of legislative fact.
Judges obtain information about these empirical propositions from
their own research and from the parties, either at trial or in briefs to
the court. Thus, the parties often do have the opportunity to debate
the propriety of the court's reliance on certain legislative facts.
However, not all facts necessary to creating law or policy can be put
“into a party-prepared record of evidence. Judges . . . cannot confine
their thoughts to facts that parties have prepared in a formal record. .
. .” 2 Kenneth C. Davis & Richard J. Pierce Jr., Administrative Law
Treatise §10.5, at 142 (3d ed. 1994). When judicial use of disputable
legislative facts is based on the judges' own independent research,
the parties may be excluded from the decisionmaking process.
Some commentators have found this to be troublesome:
We do not claim that Judges cannot rely on a broad range of facts to force the law
forward. We suggest only that the parties should be permitted to participate in the
march. . . . If a fact or set of facts is likely to be critical to a decision on the law to be
applied to parties, there is every reason to want the parties to be heard on the factual
question. Evidence need not always be taken. Briefs may work better in many
situations. But some chance for the parties to be heard on decisive legislative facts is
desirable. [1 Stephen A. Saltzberg, Michael M. Martin & Daniel J. Capra, Federal Rules
of Evidence Manual 125 (7th ed. 1998).]
Although the Federal Rules do not expressly authorize judicial notice
of legislative facts, the reality that courts must make factual
assumptions to decide legal questions—under the rubric of
“legislative fact”—has been recognized in numerous judicial
decisions. Therefore the distinction between “adjudicative” and
“legislative” facts can have significant practical impact on whether
and how a party meets its burden of proof. Consider United States v.
Gould, 536 F.2d 216 (8th Cir. 1976), in which the prosecution's
expert failed to provide testimony that the cocaine hydrochloride
found in defendants' possession was a derivative of coca leaves, as
required to establish a violation of the drug laws then in force. The
appellate court affirmed the conviction

881

on the ground that the trial judge had permissibly taken judicial
notice of a legislative fact. Not only did this obviate the need for
expert testimony linking cocaine hydrochloride to cocaine, but the
court could simply issue a jury instruction permitting the jury to so
find without going through the formalities of FRE 201, which apply
only to adjudicative facts:
The precise line of demarcation between adjudicative facts and legislative facts is not
always easily identified[.] “Legislative facts . . . do not relate specifically to the activities
or characteristics of the litigants. . . .” Legislative facts are established truths, facts or
pronouncements that do not change from case to case but apply universally, while
adjudicative facts are those developed in a particular case.
. . . When a court attempts to ascertain the governing law in a case for the purpose of
instructing the jury, it must necessarily rely upon facts which are unrelated to the
 activities of the immediate parties. These extraneous, yet necessary, facts fit within the
definition of legislative facts and are an indispensable tool used by judges when
discerning the applicable law through interpretation. The District Court, therefore, was
judicially noticing such a legislative fact when it recognized that cocaine hydrochloride
is derived from coca leaves. . . . [536 F.2d at 219-220.]

NOTES AND QUESTIONS

1. Was the result in Gould correct, or was the court struggling to
resolve the tension created when indisputable facts are essential
elements in criminal cases? How does one determine whether a fact
is legislative or adjudicative? Should the result in Gould depend
upon the generality or universality of the fact that cocaine
hydrochloride is a derivative of coca leaves, the incongruity of giving
a nonbinding judicial notice instruction, the intent of congress, or
something else?
2. Reconsider the instruction given in Problem 11.7 at page 875. Is
this instruction a violation of FRE 201(f)? Is the federal status of
Raybrook prison an adjudicative or a legislative fact?
3. In United States v. Dior, 671 F.2d 351 (9th Cir. 1982), the court
considered whether the American-Canadian exchange rate could be
classified as a legislative fact. Should it be under Gould? If not, then
could the jurors be permitted to find that the illegally imported goods
(worth $13,690 in Canadian dollars) were worth $5,000 or more in
U.S. currency, based on their own generalized knowledge? The
dissent in Dior suggested they could:
[T]he only issue is whether the jurors could find beyond a reasonable doubt that
$13,690 Canadian dollars equaled $5,000 American dollars at the time of the theft.
Seattle, the place of trial, is approximately 100 miles from the long Canadian border.
The two countries share a long history of cultural, personal and trade relations
sustained and encouraged by easy and warm reciprocal travel on many levels. They
interconnect by multi-lane superhighways. Out of this proximity and close relationship
the jurors, as people of both countries everywhere, could easily have possessed the
elementary and practical knowledge of the worth of Canadian currency. [671 F.2d at
359.]

882
 4. What if a frustrated juror deciding the Dior case looked up the
American-Canadian exchange rate for the date of the alleged crime
and reported this fact to the rest of the jury during deliberations? If
Dior is convicted, is the juror's conduct grounds for a new trial?
Would your answer be the same if the trial judge in a bench trial had
looked up the exchange rate?

3. Judicial Notice of Substantive Law

A court may “judicially notice,” or is “presumed to know,” the law of
its own jurisdiction, which governs the cases before it. Obviously the
judge investigates such law through traditional legal research.
Questions of sister state and foreign law, however, have proved
more troublesome. Common law rules required parties to plead and
prove the content of such law. This requirement has been eliminated
in the federal courts by Fed. R. Civ. P. 44.1 and Fed. R. Crim. P.
26.1, which commit the question of foreign law to the judge, whose
“determination shall be treated as a ruling on a question of law,” but
many states still possess the common law rule.

KEY POINT
Courts use propositions of generalized knowledge in their own factfinding. Courts also
use propositions of specific or general fact when interpreting legal standards and
applying and developing rules of law. FRE 201 does not apply to judicial use of facts in
these contexts.

PROBLEMS
11.9. To establish the unavailability for the purpose of offering
testimony pursuant to the declaration against interest
exception to the hearsay rule, the defendant offers affidavits of
several individuals who state that the declarant is living
someplace in Milan. In ruling that the hearsay testimony is
 admissible the trial judge states, “On the basis of the
uncontested affidavits I find that the declarant is living in
Milan, and I take judicial notice of the fact that Milan is in Italy,
far beyond the jurisdiction of this court.” Following a verdict for
the defendant, the plaintiff appeals on the ground that the trial
judge's taking of judicial notice was improper. According to the
plaintiff, the declarant's unavailability is subject to reasonable
dispute because “Milan” could refer to the small farming
community of Milan (pronounced MY-lan), which is only
several miles away. Assuming that the hearsay testimony is
critical to the defendant's defense, what result?
11.10. The local M&P Grocery Store has sued Harold Hays for food
purchased on credit by his estranged wife, Stella. M&P bases
its claim on a state statute that makes husbands liable for all
“necessaries” purchased by their wives. It is clear from the
statute that food falls within the category of necessaries. At
trial M&P

883

establishes that Stella did in fact make the purchases and that she
was married to Harold at the time. Harold establishes that he
did not authorize or benefit from any of the purchases. The
judge takes the matter under advisement and eventually
issues the following opinion:
The statute was enacted at a time when husbands were the primary
breadwinners; its purpose was to ensure that merchants would not deny wives
the necessities of life. Today, we live in a much different world. I take judicial
notice that the statute in question actually perpetuates the stereotypical notions of
women as second class citizens. As a result I declare the statute unconstitutional
under the state constitution's due process and equal protection provisions.
On appeal the plaintiff claims that the judicial notice was
improper because the matter noticed does satisfy the certainty
criteria in FRE 201(b). Plaintiff further claims that because
there was no mention of the statute's possible
unconstitutionality or the judicially notice fact at trial, plaintiff
 was denied the FRE 201(e) opportunity to be heard. What
result?
11.11. Reconsider Problem 11.8 at page 875, where the plaintiff
asked the court to take judicial notice of Nigerian fraud scams
throughout the world. The problem is based on Qualley v. Clo-
Tex Int'l, Inc., 212 F.3d 1123 (8th Cir. 2000). The trial judge
granted the judicial notice request, and the jury returned a
verdict for the plaintiff. The court of appeals, relying on Gould
and quoting a portion of the excerpted passage, supra, held
that the facts were legislative facts:
The facts of which the trial court took judicial notice did not specifically concern
the parties before the court. The trial court acknowledged that the evidence
underlying the noticed facts “[had] to do with the pretty much universal publicity
that was out about what Nigeria was doing. . . .” The videotapes contained
nothing involving anyone with whom [plaintiff] had communicated. Nor were the
other exhibits considered “specific to . . . others [involved in the scheme . . . ].” . . .
Thus . . . [the facts] were “legislative” rather than “adjudicative,” and were
therefore outside the scope of [FRE 201]. [212 F.3d at 1128.]
The court of appeals then concluded that the trial judge's
action was prejudicial error:
[B]oth during the trial and in the final instructions, the trial court instructed the jury
pursuant to Federal Rule of Evidence 201[(f)] that it must accept the judicially
noticed facts as proven. Thus, the trial court injected legislative facts—facts not
within the jury's factfinding province—into the jury's deliberations by telling the
jury that they must treat those facts as conclusively proven. [Id. at 1132.]
What do you think of the court's reasoning? The result?
11.12. Perez, an illegal alien, is seeking review of his denial of
political asylum. The asylum request is based on his claim that
if he is returned to his native country, he will be persecuted
because of his religious affiliation. He claims to be a
Jehovah's Witness. The immigration judge rejected Perez's
asylum request on the ground that Perez had failed to
establish the sincerity of his claim to

884

religion and membership in the Jehovah's Witnesses. The judge's

decision rested in part on the following: “In this proceeding
 Perez took the standard oath to testify truthfully. I take judicial
notice that Jehovah's Witnesses are prohibited from swearing
under oath.” The judge went on to explain that “many
Jehovah's Witnesses who have appeared before this court
have declined to take the oath and have indicated that it is
prohibited by their religion to swear under God or swear under
oath.” Was the judge's action proper?
11.13. In United States v. Jakobetz, 955 F.2d 786, 799-800 (2d Cir.
1992), the district court had conducted an extended hearing
on the admissibility of DNA evidence against the defendant.
The court heard nine experts, five for the government and four
for the defense. The appellate court held:
Given the findings made by the district court, and after careful consideration and
review by this court, it appears that in future cases with a similar evidentiary
issue, a court could properly take judicial notice of the general acceptability of the
general theory and the use of these specific [laboratory] techniques. . . . Beyond
such judicial notice, the threshold for admissibility should require only a
preliminary showing of reliability of the particular data to be offered. . . .
Is this a proper application of FRE 201? Is the “general
acceptance” (under Frye) or the “validity” (under Daubert) of
the basic scientific theory and techniques underlying DNA
profiling an adjudicative fact?
11.13. Lewis was convicted of carjacking in the Virgin Islands. The
statute is applicable only to motor vehicles that have been
“transported, shipped, or received in interstate or foreign
commerce.” To establish this element the prosecution relied
on the testimony of Edgar Ames. Ames described himself as a
police officer and lifelong resident of the Virgin Islands. He
testified that no motor vehicles are manufactured in the Virgin
Islands that all motor vehicles have to be shipped to the
islands. On appeal Lewis claims that there is insufficient
evidence of interstate or foreign commerce. He argues that
Ames was not qualified to testify to this element merely
because he was a lifelong resident of the Virgin Islands and
that no foundation was laid for his testimony. In affirming the
conviction, the court of appeals stated:
 We take judicial notice of the fact that the United States Virgin Islands consist of
three main islands, which are closely grouped and have an area of only 136
square miles. We further take judicial notice of the fact that a police officer and life
long resident of a place of this size has a sufficient basis to testify as to whether
any motor vehicle manufacturing facilities are located there.
Was the court's action proper?

ASSESSMENTS
A-11.1 FRE 201. In deciding a motion to transfer venue in a civil case, a district court used
Google Maps to estimate the distance and driving times for potential witnesses. Which
statement is the most accurate?

885
A. This was a proper use of judicial notice only if the parties were given an opportunity to
be heard on the issue if requested in a timely manner.
B. This was a proper use of judicial notice even if the parties were never given an
opportunity to be heard because the accuracy of the information could not reasonably
be doubted.
C. This was an improper use of judicial notice because it took place before trial.
D. This was an improper use of judicial notice because neither party requested it.
A-11.2 FRE 201. Defendant is on trial for illegally manufacturing methamphetamine. At trial,
Defendant denied any involvement and testified that he has no knowledge of how to
manufacture the drug and no knowledge of how to obtain the necessary equipment. The
prosecution requested that the court take judicial notice of the fact that recipes and
instructions for manufacturing the drug are readily available on the Internet, as are websites
offering to sell the necessary equipment. The court took judicial notice of these facts and
instructed the jury that it must accept these facts as proven. Which statement is the most
accurate?
A. The trial court abused its discretion in taking judicial notice of these facts.
B. The trial court abused its discretion in instructing the jury.
C. Judicial notice and the instruction were proper.
D. Judicial notice was improper because this was a criminal case.
A-11.3 FRE 201. TRUE or FALSE: In civil cases, judicial notice is mandatory if a party
requests it and supplies the court with the information necessary for determining the
accuracy of the facts at issue.

ANSWERS
A-11.1. The best answer is A. Under FRE 201, the court may take judicial notice at any
stage of the proceeding and may do so on its own. Therefore, C and D are incorrect.
However, the court must allow the parties to be heard on the issue, if they make a timely
request. Therefore, B is incorrect.
A-11.2. The best answer is B. Judicial notice is permissible in criminal cases, if the other
criteria in FRE 201 are satisfied. However, the court must instruct the jury that it may or may
not accept the judicially noticed fact as conclusive. A is incorrect because the judge could
accurately and readily determine whether such websites exist. C is incorrect because the
instruction was erroneous. D is incorrect because courts may take judicial notice in criminal
cases.
A-11.3. TRUE. Courts must take judicial notice if requested and supplied with the necessary
information. FRE 201(c)(2).
887

CHAPTER TWELVE
PRIVILEGES

A. THE LAW OF PRIVILEGE

1. A General Introduction
Most rules of evidence are designed to facilitate the factfinding
process, but rules creating evidentiary privilege are different. For the
most part, they exclude relevant evidence in order to promote
extrinsic policies unrelated to accurate factfinding. Their primary aim
is to protect certain relationships and interests in the world outside
the courtroom that are deemed of sufficient importance to justify the
costs imposed on the judicial process through the loss of useful
evidence. Lawmakers also set up privileges to encourage socially
beneficial activities that otherwise would not take place.
The scope of privilege law is quite broad. Some privileges have a
direct constitutional basis: examples are the Fifth Amendment
privilege against self-incrimination (the Fourth Amendment
exclusionary rule for evidence obtained as the result of an illegal
search and seizure has aspects of a privilege) and the executive
privilege claimed on various occasions by presidents of the United
States. These rules typically are studied in criminal procedure and
constitutional law courses and they will be addressed in this chapter
only where they intersect with privileges that have no constitutional
pedigree. Our main focus will be on evidentiary privileges originating
from common law and statutes. Many of these privileges are
designed to protect confidential communications, thereby
encouraging the free flow of information in certain relationships. This
group includes the most prevalent privileges: the attorney-client,
physician-patient, psychotherapist-patient, priest-penitent, and
marital communications privilege. Still other privileges are intended
to prevent interference with certain favored relationships, such as the
marital testimonial privilege. Finally, privileges also exist to protect
against the disclosure of specific types of information, such as
privileges for the identity of news reporters' sources, diplomatic
secrets, and other sensitive government information (the identity of
police informants is an example).

888

The traditional justification for rules of privilege is the utilitarian

argument espoused by John Henry Wigmore. This argument has
been most commonly advanced in support of the confidential
communication privileges. It is based on an underlying, untested
empirical assumption: The benefit derived from recognizing a
privilege—such as candid communication between attorney and
client or between spouses—outweighs the cost of barring relevant
evidence. The argument rests on an empirical assumption about
how the existence of the privilege affects individual behavior. Without
the protection of the privilege, Wigmore argued, communication will
be impeded and certain relationships, such as attorney-client and
physician-patient, will be jeopardized. This justification has been
widely accepted by the courts and has greatly influenced the
development of the law of privilege. Wigmore's conditions for the
establishment of a privilege flow directly from his justification for
privileges: (1) the communications must originate in a confidence
that they will not be disclosed; (2) the element of confidentiality must
be essential to the full and satisfactory maintenance of the relation
between the parties; (3) the relation must be one that in the opinion
of the community ought to be sedulously fostered; and (4) the injury
that would inure to the relation by the disclosure of the
communications must be greater than the benefit thereby gained for
the correct disposal of the litigation. 8 John Henry Wigmore,
Evidence §2285, at 527 (John T. McNaughton ed., rev. ed. 1961).
 Another justification for privileges originates from the economics of
rational choice. This justification is theoretical, rather than empirical:
It presupposes that rational actors always try to generate evidence
that might help them in future litigation and to avoid disclosure of
unfavorable evidence. See Gideon Parchomovsky & Alex Stein, The
Distortionary Effect of Evidence on Primary Behavior, 124 Harv. L.
Rev. 518 (2010). A rational self-interested actor would disclose
unfavorable information while interacting with his attorney, spouse,
psychotherapist, or another professional only when his benefit from
disclosure is greater than the loss. When the loss is greater than the
benefit, the actor will keep the information to himself, and it is here
where privileges come in handy. By granting the actor confidentiality
protection, they incentivize him to engage in a beneficial exchange of
information that otherwise would not take place. Such privileges
therefore operate at a zero cost to factfinding because they suppress
the same information that they bring into existence.
A distinct privacy-based rationale has also emerged for certain
privileges. Rather than focus on the inducement of conduct in certain
relationships, the privacy argument emphasizes the protection that
privileges afford to individual privacy. According to this rationale, the
confidentiality of communications is a privacy interest that itself acts
as a legitimate constraint on the truth-finding function of trial. An
advocate of the privacy rationale would argue, for example, that the
existence of a marital communications privilege may have little, if
any, impact on the extent to which spouses engage in confidential
communications; nonetheless, the privilege is socially desirable
because it provides recognition of and protection for the privacy of
intimate aspects of the marital relationship. For an argument
reconciling the traditional utilitarian justification and the privacy
rationale, see Developments in the Law—Privileged

889

Communications, 98 Harv. L. Rev. 1450, 1481-1486 (1985).1 The

existence and scope of privileges vary from jurisdiction to
jurisdiction. Under FRE 501 (reproduced in subsection 3, infra),
federal common law governs the privileges applicable in federal
question and criminal cases, while state law determines the
privileges applicable in diversity actions and other suits decided by
state law, for example, suits filed pursuant to the Federal Tort Claims
Act of 1946. In state courts and in federal cases applying state law,
the law of privilege is a varied collection of rules, created mostly by
the state legislatures.

2. The Unique Operation of Privilege Rules

Regardless of the particular justification, rules of privilege operate
differently from other rules of evidence in at least two and sometimes
three respects. First, since the objective of the privilege would be
frustrated by forced disclosure of privileged information at any time,
the rules of privilege apply to all stages of judicial proceedings. Other
rules of evidence are designed primarily to enhance the accuracy of
factfinding, particularly in jury trials, and they therefore do not apply
to various preliminary or relatively informal aspects of the
adjudicatory process. For example, FRE 1101 provides that the rules
of evidence, other than those relating to privileges, do not apply to
FRE 104(a) preliminary fact determinations, grand jury proceedings,
and other specified, relatively informal proceedings.
Second, the person who can claim or invoke a rule of privilege to
exclude evidence will not necessarily be one of the litigants.
Because the rules of evidence other than the rules of privilege are
designed to enhance the factfinding process, they exist for the
benefit of and may be invoked only by the parties to the dispute. By
contrast, rules of privilege exist for the benefit of the persons whose
communications or actions are covered by a privilege. Only these
intended beneficiaries of a privilege (or persons acting on their
behalf), who need not be parties to the action, can claim or forgo a
privilege.
The third way in which rules of privilege sometimes differ—and
perhaps should always differ—from other evidentiary rules relates to
the impact on appeal of an erroneous trial court decision regarding
admissibility of allegedly privileged information. If the trial judge
erroneously excludes the evidence, the party who would have
benefited from the evidence will be able to raise the improper
exclusion on appeal. As is true whenever a judge erroneously
excludes relevant evidence, the exclusion deprives the factfinder of
information that would have enhanced the likelihood of a factually
accurate result; this type of error, if serious enough, can be cured on
appeal by reversal and retrial. And if a trial judge erroneously admits
evidence, inflammatory character evidence, for example, the result
often is to interject prejudicial or misleading information into the trial.

890

By contrast, a trial judge's erroneous admission of privileged

information results in the jurors having before them more relevant,
helpful information than they would otherwise have had. The only
impact of such an error is to enhance the likelihood of a factually
accurate result. Thus, even if the person entitled to invoke the
privilege happens to be one of the litigants, the injury from the
erroneous admission of the evidence does not adversely affect the
person's underlying substantive entitlement or liability. Moreover, the
injury caused by the wrongful denial of the privilege is complete at
the time the privileged information is presented to the factfinder.
Reversal on appeal cannot un-ring the bell. Unless there is reason to
believe that the possibility of reversal on appeal is a desirable way to
make litigants and trial judges more sensitive to and more prone to
accept claims of privilege, the error should not be grounds for
reversal. And if the erroneous denial of a privilege claim is
recognized as a possible ground for reversal on appeal, it should
make no difference whether the person entitled to claim the privilege
happens to be one of the litigants. Nonetheless, appellate courts do
entertain such grounds for reversal, particularly in situations in which
the appellant is also the primary beneficiary of the privilege, but they
typically do not analyze carefully what interests are being vindicated.
A similar question relates to the timing of an appeal. In Mohawk
Industry Inc. v. Carpenter, the District Court found that Mohawk had
waived the attorney-client privilege, and Mohawk sought to appeal
that decision through a collateral order before proceeding with the
remainder of the trial. After dismissal at the appellate level, the
Supreme Court addressed whether an allegedly erroneous
admission of evidence, specifically when adverse to the attorney-
client privilege, “qualifies for immediate appeal under the collateral
order doctrine.” 558 U.S. 100 (2009). Justice Sotomayor wrote that
“[It does] not. Postjudgment appeals, together with other review
mechanisms, suffice to protect the rights of litigants and preserve the
vitality of the attorney-client privilege.” The Court did not address the
effect its decision would have on litigants and trial judges, but
instead focused on the effects delayed review would have on the
privilege versus the cost of allowing immediate appeal. In denying
review, the Court reasoned that ex ante incentives for clients to have
open conversations with counsel are not reduced by deferring review
until final judgment, while the cost on the system of allowing
immediate appeal would be significant. Note, however, that
immediate appeal can still be available when a witness holding the
allegedly privileged information disobeys the court's order and is
held in contempt: The witness can then appeal the contempt order.
In re Grand Jury, 705 F.3d 133, 137 (3d Cir. 2012).

3. Historical Background and Current Status of Privilege Rules

The earliest recognized privileges, the attorney-client, priest-
penitent, and marital privileges, were judge made.2 The attorney-
client privilege, which has Roman law roots, finds its first
expressions in the common law in the sixteenth century. The

891

priest-penitent privilege was recognized by English courts before the

Reformation and possibly after the Reformation as well. Robert John
Araujo, S.J., International Tribunals and Rules of Evidence: The
Case for Respecting and Preserving the “Priest-Penitent” Privilege
Under International Law, 15 Am. U. Int'l L. Rev. 639, 648-649 (2000).
The privilege of a witness spouse not to testify against a party
spouse, which we will refer to as the marital testimonial privilege,
also dates back to the sixteenth century. The origins of this privilege
are obscure, although the privilege is frequently associated with the
general common law rule of competency that prevented interested
parties from testifying as witnesses. By contrast, the privilege for
confidential communications between spouses received wide
recognition in the later part of the nineteenth century, and it is
frequently said to have common law origins. The privilege, however,
received substantial support and recognition through legislative
action both in this country and in England. We discuss these two
privileges in Section D.
During the last half of the nineteenth century, courts became
increasingly reluctant to expand existing privileges or to create new
ones. Since that time the fashioning of privileges has become
primarily—but not exclusively—a legislative matter. For example, the
physician-patient privilege is a creature of the legislature, not the
common law. As a result of such statutory revision of evidence law,
privilege law varies widely from state to state.
Significantly, a detailed law of privileges has not been codified by
the Federal Rules of Evidence. As drafted by the Advisory
Committee and proposed by the Supreme Court, the Proposed
Federal Rules of Evidence set forth nine discrete privileges
governing: (i) required reports; (ii) attorney-client confidential
communications; (iii) psychotherapist-patient confidential
communications; (iv) prevention of spousal testimony; (v) clergy-
communicant confidential communications; (vi) political vote; (vii)
trade secrets; (viii) state secrets and other official information; and
(ix) the identity of an informer.3 Noticeably absent were the
physician-patient, marital confidential communication, and
journalist's privileges. Moreover, Proposed FRE 501 made it clear
that, in the absence of a constitutional mandate, courts were not at
liberty to alter the list.
Once submitted to Congress, the proposed rules excited
considerable controversy and criticism, culminating in a
congressional decision to delete the proposed rules relating to
privilege. In its place, Congress enacted one general privilege rule,
FRE 501, updated in 2009 to read:
The common law—as interpreted by United States courts in the light of reason and
experience—governs a claim of privilege unless any of the following provides
otherwise:

the United States Constitution;

a federal statute; or
rules prescribed by the Supreme Court.

But in a civil case, state law governs privilege regarding a claim or

defense for which state law supplies the rule of decision.

892

At the same time, Congress revoked the Supreme Court's rule-

making power with respect to rules of privilege. This new Enabling
Act stated that “[a]ny . . . amendment creating, abolishing, or
modifying a privilege shall have no force or effect unless it shall be
approved by act of Congress.” 28 U.S.C. §2076 (1976). Note that
this provision applies only to statutory amendments of privileges and
that the Supreme Court still has the power to devise common law
rules of evidence for federal courts, pursuant to Article III §1 of the
Constitution, as interpreted in McNabb v. United States, 318 U.S.
332, 340-347 (1943), and Johnson v. United States, 318 U.S. 189,
198-199 (1943). Under FRE 501, the Supreme Court's power to
create and develop evidentiary privileges as a matter of federal
common law has become crucial.
In contrast to the proposed rules, FRE 501 provides for fluidity in
the federal law of privilege. FRE 501's reference to “principles of the
common law . . . interpreted . . . in light of reason and experience”
grants courts discretion both to modify common law privileges and to
create new ones:
In rejecting the proposed rules and enacting Rule 501, Congress manifested an
affirmative intention not to freeze the law of privilege. Its purpose rather was to “provide
the courts with the flexibility to develop rules of privilege on a case-by-case basis” and
to leave the door open to change. Trammel v. United States, 445 U.S. 40, 47 (1980),
quoting Statement by Representative Hungate, 120 Cong. Rec. 40,891 (1974).
In accordance with this mandate, the Supreme Court, as we shall
see shortly, has substantially narrowed the scope of one common
law privilege.4 The Supreme Court, and lower courts as well, have
also recognized new privileges.5 Although courts have referred to
the proposed rules in deciding privilege questions, such rules have
not controlled the development of the federal law of privileges.
Although most states, 42 to date, have adopted rules of evidence
modeled after the Federal Rules, the failure of Congress to enact
specific rules of privilege has contributed to less uniformity among
the states in this area of evidence law. Approximately one-third of the
states that have promulgated rules of evidence since the adoption of
the Federal Rules have followed their lead and omitted specific
privilege provisions. In these states, the preexisting statutory and
common law rules of privilege govern. Most of the remaining states
have tended to use as models the Proposed Federal Rules relating
to privilege or the privilege provisions in the Revised Uniform Rules
of Evidence (1974) (a variation from the Proposed Federal Rules6).
States using either model have not been reluctant

893

to deviate from it.7 Within the fluid, bifurcated, system of privilege

rules, new privileges can spread among jurisdictions, gradually
gaining or losing recognition over time. An interesting example of a
privilege not recognized at common law, but slowly gaining
acceptance, is the parent-child privilege. Under Wigmore's utilitarian
test and the privacy-based rationale discussed above, this privilege
has obvious appeal. There is currently no federal parent-child
privilege, but a few states recognize some form of the privilege and it
seems to be gaining support with federal legislators. See Section G
at page 999, infra, for a discussion of the evolution of the parent-
child privilege.
As we already mentioned, FRE 501 created a bifurcated system of
privilege rules. In the situations in which state law supplies the rule of
decision, such as diversity cases, state rules of privilege apply even
though the case is in federal district court. In the situations in which
federal law governs, the common law determines the applicable
rules of privilege. This system is designed to protect state policies
concerning privilege, but it does so only to a degree. If a case is not
based on state law, state privileges do not apply, and information
that a state would immunize from disclosure will be disclosed unless
there is a corresponding federal privilege (which often there is not).
For an example, see United States v. Schoenheinz, 548 F.2d 1389
(9th Cir. 1977) (holding that an employer-stenographer privilege
available under Oregon law did not apply to a proceeding to enforce
an IRS summons). Cases involving supplemental jurisdiction
(pendent and ancillary jurisdiction) can pose particular problems,
because the same case will have both federal and state claims. The
typical resolution is to apply federal privilege law to all claims. See
Hancock v. Hobbs, 967 F.2d 462 (11th Cir. 1992).

B. GENERAL STRUCTURE OF PRIVILEGES

1. Holder of the Privilege

A critically important concept in dealing with rules of privilege is that
of the “holder” of a privilege—the person to whom in a sense the
privilege “belongs.” Since the attorney-client relationship exists for
the benefit of the client, for example, the client is the holder of the
privilege. The holder is entitled to claim the privilege and only the
holder may waive a privilege. Once the holder has waived a
privilege, no other person can invoke it.
The person who holds a privilege will not necessarily be one of the
litigants. Nonparty witnesses may hold privileges that allow them to
withhold evidence. Jurisdictions sometimes differ as to who holds a
given privilege. Within the marital privilege, for example, the holder
may be the spouses jointly, the communicating spouse, the witness
spouse, or the party spouse. Section D at page 956, infra, discusses
some of the reasons behind, and the implications of, locating the
marital privilege with one or both spouses.
894

2. Invocation
A person other than the holder may be able to invoke the privilege
on the holder's behalf. For example, a nonparty eyewitness to the
event that is the subject of litigation may have made a confidential
communication to his or her attorney for the purpose of obtaining
legal advice about the event. The out-of-court communication of
some historical fact, of course, is hearsay, but the communication
may fall within a hearsay exception. Assume, for example, that the
declaration is an excited utterance, or that the declarant is presently
unavailable and the communication is a declaration against interest.
The nonparty declarant may invoke the privilege; and in the absence
of the declarant, the declarant's attorney may invoke the privilege on
behalf of the declarant. If the declarant has expressed a desire not to
claim the privilege, however, nobody can invoke the privilege.
Typically, if the holder of a privilege is unavailable to claim the
privilege, individuals acting on behalf of the holder or the holder's
estate, such as the holder's conservator or guardian, may claim the
privilege. In the case of privileges covering conversations between a
patient or client and a professional, the professional may claim the
privilege on behalf of the patient or client. For example, in the
physician-patient relationship, if the patient-holder has not
specifically waived the privilege, the doctor may be able to claim the
privilege on the patient's behalf. In some instances, as in the
attorney-client relationship, the professional is obligated by rules of
professional conduct to maintain confidentiality where the client has
not expressed an intent to waive his privilege. In addition, there is
precedent permitting the trial judge to invoke a privilege on behalf of
an absent holder.8 Interesting questions sometimes arise when the
holder of the privilege is an entity, such as a corporation or
governmental agency, rather than an individual. In Nixon v.
Administrator of General Services, 433 U.S. 425 (1977), the former
President sought to invoke the executive privilege “against the very
Executive Branch in whose name the privilege is invoked.” The
Presidential Recordings and Materials Preservation Act required the
former President to deliver presidential papers and tape recordings
to an archivist of the Executive Branch to be screened and
cataloged. Nixon resisted turning the materials over and invoked the
presidential privilege. The Supreme Court held that the “privilege
survives the individual President's tenure” but that the expectation of
the confidentiality of executive communications is “subject to erosion
over time after an administration leaves office.” Though the Court
allowed Nixon to invoke the privilege on behalf of the government, it
upheld the Act as facially constitutional because the screening by the
archivist would be but a “limited intrusion by personnel in the
Executive Branch sensitive to executive concerns.” It is unclear
whether the former President would have been allowed to invoke the
privilege if the Office of the President had attempted to waive it.

895

In the corporate setting, some courts have struggled with whether

an attorney may invoke the attorney-client privilege on behalf of the
client-corporation when shareholders seek disclosure of
communications between corporate officers and corporate attorneys.
In Fausek v. White, 965 F.2d 126 (6th Cir. 1992), the defendant and
majority shareholder of the corporation, Robert E. White, appealed
from a district court judgment denying his claim of attorney-client
privilege in an action alleging securities violations. The plaintiffs,
former shareholders, brought suit against White alleging that he had
abused his position to their financial detriment. The plaintiffs
subpoenaed the corporation's attorney to testify about
communications he had had with White but the attorney resisted,
asserting the attorney-client privilege on behalf of the corporation.
The appellate court affirmed the lower court, holding that the
corporation could not claim the attorney-client privilege because it
owed fiduciary duties to the plaintiffs and the latter had shown “good
cause” for not permitting defendant to rely on the privilege.
The court provided a long list of factors for determining whether
there is “good cause” to recognize an exception to the attorney-client
privilege, including the
number of shareholders and the percentage of stock they represent; . . . the nature of
the shareholders' claim and whether it is obviously colorable; the apparent necessity or
desirability of the shareholders having the information and the availability of it from
other sources; . . . the extent to which the communication is identified versus the extent
to which the shareholders are blindly fishing; the risk of revelation of trade secrets or
other information in whose confidentiality the corporation has an interest for
independent reasons.
The Fifth Circuit took a similar approach in Garner v. Wolfinbarger,
430 F.2d 1093 (5th Cir. 1970), and Ward v. Succession of Freeman,
854 F.2d 780 (5th Cir. 1988), but the Ninth Circuit drew a distinction
between derivative suits brought by current shareholders and class
actions brought by past shareholders and refused to recognize the
exception in Weil v. Investment/Indicators, Research & Management,
647 F.2d 18 (9th Cir. 1981). For further discussion, see Keith W.
Johnson, Fausek v. White: The Sixth Circuit Garners Support for a
Good Cause Exception to the Attorney-Client Privilege, 18 Dayton L.
Rev. 313 (1993). For more discussion on the derivative suit
distinction, see Paul R. Rice, Attorney-Client Privilege in the U.S.,
Cause to Overcome Privilege—Limitations on Applicability of Garner
—Must the Action Be Derivative for Garner Rule to Apply? ACPRIV-
FED §8:20 (2010).
Another related subtlety of privileges is the ability of third parties to
invoke them after the holder's death. Though confidential
communications privileges are generally thought to survive the death
of a holder, they may not always be invoked. The personal
representative of the deceased, for example, may choose not to
invoke the privilege; or an attorney may be deprived of the
opportunity to invoke a privilege by the commonly recognized
exception to the attorney-client privilege for communications
“relevant to an issue between parties who claim through the same
deceased client.” Proposed FRE 503(d)(3).
The Supreme Court acknowledged the importance of maintaining
the attorney-client privilege after a client's death in Swidler & Berlin v.
United States, 524 U.S. 399 (1998). The Court allowed Deputy White
House Counsel Vince Foster's attorney
896

to invoke the attorney-client privilege on Foster's behalf after

Foster committed suicide. The government sought to obtain notes
from Foster's attorney that were taken in a meeting between the two,
nine days before Foster's death. The Court held that an attorney's
notes from his meeting with his client are privileged and immune to a
federal grand jury subpoena. The dissent agreed that attorney-client
privilege ordinarily survives the death of the client, but emphasized
that the common law also dictates that privileges should be
construed narrowly. In this criminal investigation into wrongdoings in
the White House, the dissent stated, the “paramount value” of our
criminal justice system—the protection of an innocent defendant—
should “outweigh a deceased client's interest in preserving
confidence.”

3. Scope and Limits

Each privilege has a particularized scope; it covers some things but
not others. The confidential communications privileges, for example,
extend only to confidential communications. If an unnecessary third
party is present during a conversation between lawyer and client or
husband and wife, the conversation will not be privileged. Another
example: The attorney-client privilege extends only to
communications for purposes of obtaining legal advice. If a person
who happens to be, or who becomes, a client communicates with a
lawyer for some other purpose, the communication is not privileged.
Similarly, conversations between clergy and their flock are only
privileged if in a confessional, or perhaps counseling, situation.
Privileges may also be limited by the potential benefit and harm to
the litigants. While most of the confidential communications
privileges are immune to claims of need by the opposing party,
privileges to protect disclosure of specific types of information are
often less secure. When considering whether to protect the identity
of an informant, for example, a court may balance the importance to
the defendant of the informant's testimony against the government's
interest in resisting disclosure. See United States v. Fischer, 531
F.2d 783 (5th Cir. 1976). Similarly, academic researchers enjoy a
privilege limited by a party's non-frivolous claim of need and inability
to otherwise obtain the information. See Cusumano v. Microsoft
Corp., 162 F.3d 708 (1st Cir. 1998).9

4. Waiver
The holder of a privilege may waive the privilege in at least four
different ways. First, the holder may indicate through words or
conduct a desire to forgo the privilege. Second, if the holder refrains
from invoking the privilege, the failure to assert the privilege typically
will be regarded as a waiver. However, newly enacted FRE 502,
discussed infra on pages 905-912, addresses the effects of waiver
when communication

897

or information protected by the attorney-client privilege and the work-

product doctrine is inadvertently disclosed; the rule generally limits
the effect of such disclosure. Third, voluntary disclosure of a
communication protected by those privileges, such as a client
discussing legal advice he received from his attorney with a third
person, will constitute a waiver. Voluntary disclosure of a confidential
communication in the context of another privileged communication
will not result in waiver, however. For instance, if a person, in the
presence of his spouse, made a confidential statement to his
attorney that was covered under the attorney-client privilege, the
marital communication privilege would preclude the waiver of the
attorney-client privilege. Proposed FRE 511 captured well this aspect
of the common law:
A person upon whom these rules confer a privilege against disclosure of the
confidential matter or communication waives the privilege if he or his predecessor while
holder of the privilege voluntarily discloses or consents to disclosure of any significant
part of the matter or communication. This rule does not apply if the disclosure is itself a
privileged communication.
 With respect to waiver by disclosure, it is important to note that the
voluntary disclosure must be a disclosure of the confidential
communication itself. A voluntary statement—either as a witness or
in a casual conversation—of facts that were the subject of the
communication is not a waiver of the privilege. The privilege protects
solely the confidential communication, not the facts for which any
witness with knowledge can be subpoenaed.
Fourth, waiver may also occur through asserting a claim based on
privileged information. “Waiver by claim assertion” of privileged
materials has been generally recognized as requiring disclosure
when a party “asserts a claim that in fairness requires examination of
protected communications.” United States v. Bilzerian, 926 F.2d
1285, 1292 (2d Cir. 1991). For example, in In re Grand Jury
Proceedings, 350 F.3d 299, 305 (2d Cir. 2003), the Second Circuit
held that where a letter was sent by a corporation to a U.S. attorney
explaining that it had been told by federal agents that its actions
were legal, there was no unfairness to the government and thus the
company did not waive its privilege as a result of placing its claims at
issue. In contrast, a party who asserts that action was taken on the
advice of counsel waives the attorney-client privilege with respect to
those communications. For example, in United States v. Cohn, 303
F. Supp. 2d 672, 681 (D. Md. 2003), the court held that an
investment company indicted for mail and wire fraud waived its
attorney-client privilege after its general counsel raised an advice of
counsel defense in his opening statement at trial. The same principle
applies to actions for damages caused by an attorney's malpractice.
By filing such an action, the client waives the privilege with respect to
all of her relevant communications with the defendant attorney. See,
e.g., Christenbury v. Locke Lord Bissell & Lidell, LLP, 285 F.R.D. 675,
681-684 (N.D. Ga. 2012) (applying the principle and discussing
supporting case law). By the same token, in a habeas suit claiming
ineffective assistance of counsel, the defendant seeking to vacate
his conviction must specify his allegations against the former
attorney, which implicitly waives the privilege with respect to the
required information. United States v. Pinson, 584 F.3d 972 (10th Cir.
2009).
898

5. Exceptions
Each privilege has a set of exceptions that are derived from the
underlying policies the particular privilege is created to serve. For
example, the attorney-client privilege does not extend to
communications in furtherance of a crime or fraud. The purpose of
the privilege is to facilitate the giving of legal advice with respect to
presently existing legal problems and to assist a client in conforming
to the dictates of the law; its purpose is not to facilitate
transgressions of the law. Similarly, the marital privileges do not
apply in cases of alleged spousal abuse and the priest-penitent
privilege cannot be relied upon to cover up ongoing child abuse.
Again, these privileges are designed to preserve relationships, not to
encourage assaultive behavior.

6. Drawing Adverse Inferences from Invoking a Privilege

In Griffin v. California, 380 U.S. 609 (1965), the Supreme Court held
that allowing comment on the defendant's decision not to testify
violated his Fifth Amendment privilege against self-incrimination “by
making its assertion costly.” Proposed FRE 513 applied the Griffin
rationale to the law of privileges generally:

(a) Comment or inference not permitted. The claim of a privilege, whether in the
present proceeding or upon a prior occasion, is not a proper subject of comment by
judge or counsel. No inference may be drawn therefrom.
(b) Claiming privilege without knowledge of jury. In jury cases, proceedings shall be
conducted, to the extent practicable, so as to facilitate the making of claims of privilege
without knowledge of the jury.
(c) Jury instructions. Upon request, any party against whom the jury might draw an
adverse inference from a claim of privilege is entitled to an instruction that no inference
may be drawn therefrom.

Presently, there appears to be no general constitutional rule barring

comment on a party's invocation of a confidential communications
privilege, and the case law is divided10 as to the propriety of
comment about invoking privileges outside the Griffin context.11
Cases allowing comment frequently draw an analogy to the long-
established practice of permitting comments on and drawing adverse
inferences from the destruction of evidence or the failure to produce
available witnesses or documents. In contrast, cases barring
comment echo Griffin's concern that comment or adverse inferences
undermine the privilege.

899

7. Constitutional Limitations on Privileges

The Due Process Clause of the Fourteenth Amendment and the
Sixth Amendment Compulsory Process Clause set constitutional
limits for privileges in criminal prosecutions. When a privilege is
claimed by a witness from whom a criminal defendant seeks to elicit
relevant testimony or documents, it directly conflicts with the
defendant's rights under these constitutional provisions, and in
appropriate cases with the Confrontation Clause as well. The
Constitution resolves such conflicts in the defendant's favor, a
principle succinctly explained by Judge Learned Hand: “The
government must choose; either it must leave the transactions in the
obscurity from which a trial will draw them, or it must expose them
fully.” United States v. Andolschek, 142 F.2d 503, 506 (2nd Cir.
1944). See also Jencks v. United States, 353 U.S. 657, 671-672
(1957) (holding that government cannot withhold potentially
exculpatory information by alluding to state secrecy); Davis v.
Alaska, 415 U.S. 308 (1974) (defendant's right to confront and cross-
examine key prosecution witness includes right to bring out witness's
juvenile record despite state statute privileging those records);
Pennsylvania v. Ritchie, 480 U.S. 39, 58-59 (1987) (defendant
accused of sexual offenses against minor victim was entitled to have
Pennsylvania Children and Youth Services file reviewed by trial court
to determine whether it contained potentially exculpatory information,
but he had no right to access that file by himself); Matter of Farber,
394 A.2d 330 (N.J. 1978) (holding statutory privilege protecting
confidentiality of media informant's identity unconstitutional to the
extent it limited criminal defendants' access to potentially
exonerating information); Alex Stein, Constitutional Evidence Law,
61 Vand. L. Rev. 65, 77 (2008) (explaining that a criminal defendant
is entitled to receive from the government all potentially exonerating
information so long as it presses the charges and that the
government cannot hide such information by communicating it to its
attorney and claiming the attorney-client privilege, and citing relevant
cases).
Another line of decisions imposes limits upon privileges that
impede governmental investigation. Such privileges may be held
unconstitutional as well. Courts also may refuse to recognize them
as a matter of the common law development of privileges. See, e.g.,
Nixon v. United States, 418 U.S. 683 (1974) (sweeping claim of
absolute executive privilege for general presidential communications
will not prevail over demonstrated need for specific evidence).

C. THE ATTORNEY-CLIENT PRIVILEGE

1. Elements of the Privilege

A good statement of the modern attorney-client privilege is contained
in Proposed FRE 503:
(a) Definitions. As used in this rule:
(1) A “client” is a person, public officer, or corporation, association, or other
organization or entity, either public or private, who is rendered

900
professional legal services by a lawyer, or who consults a lawyer with a view to
obtaining professional legal services from him.
(2) A “lawyer” is a person authorized, or reasonably believed by the client to be
authorized, to practice law in any state or nation.
(3) A “representative of the lawyer” is one employed to assist the lawyer in the
rendition of professional legal services.
(4) A communication is “confidential” if not intended to be disclosed to third
persons other than those to whom disclosure is in furtherance of the rendition of
professional legal services to the client or those reasonably necessary for the
transmission of the communication.
 (b) General Rule of Privilege. A client has a privilege to refuse to disclose and to
prevent any other person from disclosing confidential communications made for the
purpose of facilitating the rendition of professional legal services to the client,
(1) between himself or his representative and his lawyer or his lawyer's
representative, or
(2) between his lawyer and the lawyer's representative, or
(3) by him or his lawyer to a lawyer representing another in a matter of common
interest, or
(4) between representatives of the client or between the client and a representative
of the client, or
(5) between lawyers representing the client.
(c) Who May Claim the Privilege. The privilege may be claimed by the client, his
guardian or conservator, the personal representative of a deceased client, or the
successor, trustee, or similar representative of a corporation, association, or other
organization, whether or not in existence. The person who was the lawyer at the time of
the communication may claim the privilege but only on behalf of the client. His authority
to do so is presumed in the absence of evidence to the contrary.
(d) Exceptions. There is no privilege under this rule:
(1) Furtherance of crime or fraud. If the services of the lawyer were sought or
obtained to enable or aid anyone to commit or plan to commit what the client knew or
reasonably should have known to be a crime or fraud; or
(2) Claimants through same deceased client. As to a communication relevant to an
issue between parties who claim through the same deceased client, regardless of
whether the claims are by testate or intestate succession or by inter vivos
transaction; or
(3) Breach of duty by lawyer or client. As to a communication relevant to an issue
of breach of duty by the lawyer to his client or by the client to his lawyer; or
(4) Document attested by lawyer. As to a communication relevant to an issue
concerning an attested document to which the lawyer is an attesting witness; or
(5) Joint clients. As to a communication relevant to a matter of common interest
between two or more clients if the communication was made

901
by any of them to a lawyer retained or consulted in common, when offered in an
action between any of the clients.

As Proposed FRE 503 suggests, much of the law governing the

attorney-client privilege is quite straightforward. The attorney-client
privilege originally was based on the theory that it would be
unprofessional for the lawyer to reveal confidential communications
from the client. Thus, the lawyer was the holder of the privilege.
Today, jurisdictions uniformly recognize that the attorney-client
privilege exists for the benefit of the client, who is thus now the
holder of the privilege. The privilege may be claimed on the client's
behalf by various individuals representing the client. If the client
waives the privilege, the attorney cannot refuse to reveal the
confidential communications. Although Proposed FRE 503 does not
treat the matter, the client alone may waive the privilege by
disclosing the information, and Proposed FRE 503(d) lists the
standard exceptions to the attorney-client privilege.
The primary difficulty here is determining the scope of the privilege.
The following sections discuss which communications are and which
are not covered by the attorney-client privilege.
a. Communications with a Lawyer or Representative of a Lawyer
The attorney-client privilege applies to any communication
between client and lawyer made for the purpose of securing legal
advice. If a person approaches someone reasonably believed to be
an attorney for the purpose of obtaining legal advice, confidential
communications between the two are privileged even if the person is
mistaken in the belief, unless one of the exceptions applies. The
privilege also attaches to preliminary discussions with an attorney,
even if the attorney is not ultimately retained. Moreover, the
presence of third parties who are necessary or useful to the objective
of rendering legal advice, such as translators, does not destroy
confidentiality. The attorney-client privilege applies not only to
communications between the attorney and the client but also to
communications between the client and a representative of the
attorney, which is defined as a person who is “employed to assist the
lawyer in the rendition of professional services.” Proposed FRE
503(a)(3). But how far does the privilege extend over employees of a
law firm who are not attorneys? In United States v. Kovel, 296 F.2d
918 (2d Cir. 1961), Judge Friendly wrote an influential opinion
discussing the issue. In Kovel, an accountant was employed by a
law firm specializing in tax law. Id. at 919. Although Kovel was not an
attorney, he met with clients to discuss complex tax issues. Id. The
suit involved Kovel's refusal to reveal communications with one of
his clients when subpoenaed by a grand jury, invoking the attorney-
client privilege. Id. The court held that the attorney-client privilege
extends to nonlawyer employees of a law firm so long as the
communications relate to legal advice. Id. at 922. The court justified
extending the privilege as follows:
[T]he complexities of modern existence prevent attorneys from effectively handling
clients' affairs without the help of others. . . . “The assistance of these agents being
indispensable to his work and the communications of the client being often necessarily
committed to them by the attorney or by the client himself, the privilege must include all
the persons who act as the attorney's agents.” 8 Wigmore, Evidence, §2301. [Id. at
921.]

902

The court in Kovel further stated that the privilege exists if the lawyer
has directed the client to tell his story to an accountant in order to
provide better advice. Id. at 922.
The notorious prosecution of Martha Stewart for obstructing justice
raised an interesting twist on the Kovel situation. In re Grand Jury
Subpoenas Dated March 24, 2003, 265 F. Supp. 2d 321 (S.D.N.Y.
2003), dealt with “the troublesome question whether and to what
extent the attorney-client privilege and the protection afforded to
work product extend to communications between and among a
prospective defendant in a criminal case, her lawyers, and a public
relations firm hired by the lawyers to aid in avoiding an indictment.”
Martha Stewart and her lawyers had hired a public relations firm, and
the grand jury subpoenaed communications between Stewart, the
lawyers, and the firm. Discovery was resisted on the ground that the
public relations firm had been hired as part of Stewart's legal
defense. In particular, Stewart claimed that the “unbalanced and
often inaccurate press reports about Target created a clear risk that
the prosecutors and regulators conducting the various investigations
would feel public pressure to bring some kind of charge against her,”
and the public relations firm was hired to help redress the purported
imbalance in the media. In an interesting opinion that relied heavily
on Kovel, the court concluded that:
This Court is persuaded that the ability of lawyers to perform some of their most
fundamental client functions—such as (a) advising the client of the legal risks of
speaking publicly and of the likely legal impact of possible alternative expressions, (b)
seeking to avoid or narrow charges brought against the client, and (c) zealously
 seeking acquittal or vindication—would be undermined seriously if lawyers were not
able to engage in frank discussions of facts and strategies with the lawyers' public
relations consultants. For example, lawyers may need skilled advice as to whether and
how possible statements to the press—ranging from “no comment” to detailed factual
presentations—likely would be reported in order to advise a client as to whether the
making of particular statements would be in the client's legal interest. And there simply
is no practical way for such discussions to occur with the public relations consultants if
the lawyers were not able to inform the consultants of at least some non-public facts,
as well as the lawyers' defense strategies and tactics, free of the fear that the
consultants could be forced to disclose those discussions. In consequence, this Court
holds that (1) confidential communications (2) between lawyers and public relations
consultants (3) hired by the lawyers to assist them in dealing with the media in cases
such as this (4) that are made for the purpose of giving or receiving advice (5) directed
at handling the client's legal problems are protected by the attorney-client privilege.

The court did note that, notwithstanding the formalism of it all, had
Stewart hired the public relations firm herself, the privilege would not
apply, and further that any communications for purposes other than
legal advice would not be covered by the privilege.
A difficult question is whether the privilege covers communications
between a criminal defendant and psychiatric experts retained by
defense counsel, where the defendant asserts an insanity defense.
The rule noted above that the attorney-client privilege applies to
communications between a client and agents retained by defense
counsel usually is extended to include psychiatrists. See Ballew v.
State, 640 S.W.2d 237 (Tex. Crim. App. 1982); United States v.
Talley, 790 F.2d 1468, 1470-1471 (9th

903

Cir. 1986) (recognizing “attorney-psychotherapist-client privilege”

based in common law); but see Colo. Rev. Stat. §13-90-107(3)
(scope of attorney-client privilege does not cover communications
between a psychiatrist and a criminal defendant who asserts an
insanity defense). However, some jurisdictions consider an insanity
defense a waiver of the privilege through the assertion of a claim
based on privileged information. This “waiver by claim assertion” of
privileged materials has been generally recognized as requiring
disclosure when a party “asserts a claim that in fairness requires
examination of protected communications.” United States v.
Bilzerian, 926 F.2d 1285, 1292 (2d Cir. 1991). Compare Gray v.
District Court, 884 P.2d 286, 292 (Colo. 1994) (holding that a
defendant waives the right to claim the attorney-client and
psychiatrist-patient privileges if mental condition is an issue), with
People v. Knuckles, 165 Ill. 2d 125, 140, 650 N.E.2d 974, 981 (1995)
(holding that there was no waiver of the attorney-client privilege with
respect to communications between a defendant who raises an
insanity defense and a psychiatrist employed by defense counsel to
aid in the preparation of the defense). Also, Sixth Amendment
challenges may arise from a state's limiting of the scope of the
attorney-client privilege with respect to defense psychiatrists.
However, the majority rule is that the Sixth Amendment is not
violated by denying the privilege. See, e.g., Lange v. Young, 869
F.2d 1008, 1013 (7th Cir. 1989), aff'g State v. Lange, 126 Wis. 2d
513, 376 N.W.2d 868 (1985).
b. Communications for the Purpose of Legal Service
The person invoking the privilege bears the burden of proof to
show that the attorney was contacted for a legal professional
purpose. If the attorney was contacted for some other purpose, the
privilege does not apply. For example, if the client solicits business
or financial advice, or sees a lawyer about an accounting issue
rather than legal matters, any communications between them are not
protected by the privilege. See, e.g., In re Grand Jury Testimony of
Attorney X, 621 F. Supp. 590, 592 (E.D.N.Y. 1985) (“where attorney
is a mere 'conduit' the client may not invoke the privilege”); United
States v. Woodruff, 383 F. Supp. 696, 698 (E.D. Pa. 1974) (attorney-
client communication regarding time of trial not privileged). It can be
a challenge to distinguish a “legal” purpose from another purpose,
such as business or financial advice. In Georgia-Pacific Corp. v. GAF
Roofing Manufacturing Corp., 1996 U.S. Dist. LEXIS 671 (S.D.N.Y.
Jan. 24, 1996), GAF's in-house counsel, Scott, was asked to review
certain environmental provisions of a proposed asset purchase
agreement. He then negotiated the provisions of the agreement, and
after execution of the agreement, he negotiated related matters.
After the agreement was terminated, his testimony was needed to
determine whether GAF agreed to assume certain environmental
risks. Scott asserted the attorney-client privilege to avoid disclosure,
stating that he had merely provided legal advice to management.
The court held that, as a negotiator for GAF, Scott was acting in a
business capacity, and with no litigation in sight, he was not giving
legal advice. Therefore, no attorney-client privilege applied.
Proposed FRE 503(d)(5) implies that in a joint client situation,
communications between an attorney and either of his joint clients
are privileged against outsiders, which is the standard rule. Where
two different parties have different representation,

904

courts typically extend the privilege to cover what is called

“common interest” or “joint defense” situations, as again Proposed
FRE 503(b)(3) indicates. United States v. Schwimmer, 892 F.2d 237
(2d Cir. 1989). Problems arise when the joint defense breaks down
and the previous cooperating parties become adversaries. Some
courts take the position that in such circumstances a lawyer may not
use against the now adverse party any confidences disclosed while
the parties were cooperating, at least if their agreement so specifies.
See, e.g., United States v. Anderson, 790 F. Supp. 231 (W.D. Wash.
1992).
c. The Scope of Confidential Communications Included in Privilege
Confidential conversations between an attorney and client are
covered, so long as the conversations relate to legal advice.
However, what about non-verbal communications, or documents
exchanged between an attorney and client? In In re Navarro, 93 Cal.
App. 3d 325, 155 Cal. Rptr. 522 (1979), the court considered
whether an attorney's act of handing a police report to his client was
a “communication” within the attorney-client privilege. In Navarro, an
attorney was subpoenaed and refused to answer whether or not she
showed a police report to her client, invoking the privilege. The court
stated that the privilege covers “information transmitted between a
client and his lawyer,” and thus even turning over to the client a
public document, such as the police report in question, if given as
part of her legal advice or strategy, is covered by the privilege. Id. at
327.
Some courts have extended the privilege beyond mere
communications. In State v. Meeks, 666 N.W.2d 859 (Wis. 2003), the
Wisconsin Supreme Court held that an attorney's opinions and
impressions of a former client's competence were protected by the
attorney-client privilege. Although the attorney's opinion is not a
communication, the court stated that “a lawyer's opinion about a
client's competence or state of mind is inextricably mixed with the
client's private communications.” Id. at 870. However, a majority of
courts have held that the attorney-client privilege does not protect an
attorney's perceptions of a former client's mental competency unless
relating the perceptions would reveal the substance of a confidential
communication. See Darrow v. Gunn, 594 F.2d 767 (9th Cir. 1979).
For the privilege to attach, not only must the communication be
confidential, but also clients must take “reasonable precautions” to
ensure confidentiality. See, e.g., Suburban Sew 'N Sweep v. Swiss-
Bernina, 91 F.R.D. 254 (N.D. Ill. 1981) (client who placed confidential
documents in dumpster failed to take adequate precautions and lost
protection of the privilege). Eavesdroppers present special problems
for the privilege. The modern trend is to allow the claim of privilege to
prevent testimony by the eavesdropper as long as the setting of the
conversation suggests that the speakers intended the conversation
to be confidential. Communicating in a public setting, for example,
would tend to negate the claim that the participants intended the
conversation to be confidential. Still, location is not dispositive. If the
parties were speaking in hushed tones and thus not likely to be
overheard, that their meeting took place in a public place would not
automatically negate a claim of confidentiality. See, e.g., In re Sealed
Case, 737 F.2d 94, 101-102 (D.C. Cir. 1984).

905
d. Limitations on Waiver of the Privilege
 What if confidential material is inadvertently disclosed, perhaps as
a result of a clerical error during discovery? Whether inadvertent
disclosure of privileged lawyer-client communications and attorney
work product should operate as a waiver of the protected material is
a question that has plagued courts for decades. The problem has
grown exponentially worse since e-discovery has become prevalent
in most major civil litigation. As vast amounts of electronic
documents are exchanged, it is increasingly easy to disclose
inadvertently protected materials.
Outdated legal precedents added uncertainty as to the results of
such disclosure. Most courts provided some protection where
inadvertent waivers have occurred in modern, document-intensive
litigation if the party holding the privilege could show that it had not
been careless with the privileged materials. See, e.g., Gray v.
Bicknell, 86 F.3d 1472, 1484 (8th Cir. 1996). Some courts, however,
continued to strictly find waiver in cases of inadvertent disclosure.
See, e.g., Wichita Land & Cattle Co. v. American Federal Bank,
F.S.B., 148 F.R.D. 456 (D.D.C. 1992) (“Disclosure of otherwise-
privileged materials, even where the disclosure was inadvertent,
serves as waiver of the privilege.”). Inadvertent waiver could be
particularly harsh when conjoined with what is sometimes called
subject matter waiver. Some courts held that disclosure of any
aspect of privileged material resulted in a waiver of all privileged
material related to the topic. For an excellent discussion of the
general area of waiver, see Richard L. Marcus, The Perils of
Privilege: Waiver and the Litigator, 84 Mich. L. Rev. 1605 (1986). As
a result, large amounts of resources were dedicated to document
reviews, and costs were frequently grossly disproportionate to the
stakes of the litigation. Further, the in-depth review process itself
impeded the efficient processing of cases through the system.12
Federal Rule 502, the first new rule concerning privileges since
1975, has been adopted to deal with this problem, among other
issues.

RULE 502. ATTORNEY-CLIENT PRIVILEGE AND WORK PRODUCT; LIMITATIONS

ON WAIVER
 The following provisions apply, in the circumstances set out, to disclosure of a
communication or information covered by the attorney-client privilege or work-product
protection.
(a) Disclosure Made in a Federal Proceeding or to a Federal Office or Agency; Scope
of a Waiver
When the disclosure is made in a federal proceeding or to a federal office or agency
and waives the attorney-client privilege or work-product protection, the waiver extends
to an undisclosed communication or information in a federal or state proceeding only if:
(1) the waiver is intentional;
(2) the disclosed and undisclosed communications or information concern the
same subject matter; and

906
(3) they ought in fairness to be considered together.
(b) Inadvertent disclosure
When made in a federal proceeding or to a federal office or agency, the disclosure
does not operate as a waiver in a federal or state proceeding if:
(1) the disclosure is inadvertent;
(2) the holder of the privilege or protection took reasonable steps to prevent
disclosure; and
(3) the holder promptly took reasonable steps to rectify the error, including (if
applicable) following Federal Rule of Civil Procedure 26(b)(5)(B).
(c) Disclosure Made in a State Proceeding
When the disclosure is made in a State proceeding and is not the subject of a state-
court order concerning waiver, the disclosure does not operate as a waiver in a federal
proceeding if the disclosure:
(1) would not be a waiver under this rule if it had been made in a federal
proceeding; or
(2) is not a waiver under the law of the state where the disclosure occurred.
(d) Controlling Effect of a Court Order
A federal court may order that the privilege or protection is not waived by disclosure
connected with the litigation pending before the court—in which event the disclosure is
also not a waiver in any other federal or state proceeding.
(e) Controlling Effect of a Party Agreement
An agreement on the effect of disclosure in a federal proceeding is binding only on
the parties to the agreement, unless it is incorporated into a court order.
(f) Controlling Effect of this Rule
Notwithstanding Rules 101 and 1101, this rule applies to state proceedings and to
federal court-annexed and federal court-mandated arbitration proceedings, in the
circumstances set out in the rule. And notwithstanding Rule 501, this rule applies even
if state law provides the rule of decision.
(g) Definitions
In this rule:
(1) “attorney-client privilege” means the protection that applicable law provides for
confidential attorney-client communications; and
 (2) “work-product protection” means the protection that applicable law provides for
tangible material (or its intangible equivalent) prepared in anticipation of litigation or
for trial.”

e. Explanation of FRE 502

As the Advisory Committee Notes explain, this new rule serves two
major purposes:

1) It resolves some longstanding disputes in the courts about the effect of certain
disclosures of communications or information protected by the attorney-client privilege
or as work product—specifically, disputes involving disclosure of privileged information

907
and whether it constitutes a comprehensive subject-matter (or transactional) waiver,
as opposed to a waiver limited to the information actually disclosed.
2) It responds to the widespread complaint that litigation costs necessary to protect
against waiver of attorney-client privilege or work product have become prohibitive due
to the concern that any disclosure (however inadvertent or minimal) will operate as a
subject matter waiver of all protected communications or information.
FRE 502 seeks to provide a predictable, uniform set of rules that determine the
consequences of a disclosure of a communication or information covered by the
attorney-client privilege or work-product protection. Parties to litigation need to know
what happens when they disclose privileged information intentionally or by mistake.
Parties also need to have an assurance that if they exchange privileged information
pursuant to a confidentiality order, the court's order will be enforceable. Moreover, if a
federal court's confidentiality order is not enforceable in a state court, then the
burdensome costs of privilege review and retention are unlikely to be reduced.13

The new rule does not alter federal and state law governing whether
information is protected under the attorney-client privilege or the
work-product doctrine. This rule only determines the consequences
of disclosing information protected by the attorney-client privilege.
The effect of disclosure of information protected by other evidentiary
privileges continues to be a question of federal common law.14 The
rule also does not displace applicable waiver doctrines. Rather, it
limits the consequences of those doctrines in a uniform way.
f. Applying FRE 502: Practical Issues

Scope of Waiver Under FRE 502(a) and Subject Matter Waiver.

Inadvertent disclosure of privileged information will never result in a
subject matter waiver. Rather, the waiver will only extend to the
information actually disclosed. Similarly, when intentional disclosure
of privileged information is found to waive the protection, the waiver
will not extend beyond the disclosed information. The important
exception to this rule is when protected information is intentionally
disclosed in a selective or misleading manner to disadvantage the
adversary. Under such circumstances, a judge may find that fairness
requires further disclosure of related, protected information, i.e., a
subject matter waiver. Note the similarity of the language to Rule
106. The principle behind the “ought in fairness” language is the
same under both rules. According to the Committee, “Under both
Rules, a party that makes a selective, misleading presentation that is
unfair to the adversary opens itself to a more complete and accurate
presentation.”15
Appleton Papers, Inc. v. E.P.A., 702 F.3d 1018 (7th Cir. 2012)
provides an excellent example of FRE 502(a) in operation. The
government accused Appleton Papers Inc. (“API”) and seven other
companies of contaminating the Fox River near Green

908

Bay, Wisconsin, and causing a $1 billion damage. The government

then hired a consultant that prepared reports on the companies'
responsibility for the contamination. The government disclosed some
of those reports to obtain a consent decree that established another
company's liability. Following that disclosure, API claimed that the
government must now show it all of the reports, otherwise protected
by the “work product” doctrine. The Seventh Circuit disagreed.
“Federal Rule of Evidence 502,” it explained, governs such situations
where a party unfairly discloses only a portion of privileged material.
This Rule “abolished the dreaded subject-matter waiver, i.e., that any
disclosure of privileged matter worked a forfeiture of any other
privileged information that pertained to the same subject matter.”
(citing Trustees of Elec. Workers Local No. 26 Pension Trust Fund v.
Trust Fund Advisors, Inc., 266 F.R.D. 1, 11 (D.D.C. 2010). The circuit
court then went on to determine that there is no indication of
unfairness on the part of the government and that “to the extent API .
. . fears that the government will use the newer numbers against it in
future litigation, Rule 26 requires disclosure before trial.” Id. at 1026.
Subsection (a) also stipulates that a waiver made under FRE 502
“extends to an undisclosed communication or information in a federal
or state proceeding.” Thus, when the effect of a party's waiver of the
attorney-client privilege is determined by federal law—FRE 502—it
will not be changed in a subsequent state court proceeding. State
law, no matter what it says, cannot modify the nature and
consequences of a waiver that took place in a federal proceeding.
When Does an Inadvertent Disclosure Waive Protection Under
FRE 502(b)? FRE 502(b) is about inadvertent disclosure. Under this
rule, the privilege is waived only when its holder does not take
reasonable steps to prevent disclosure and does not take
reasonable steps to rectify his error (e.g., by demanding the return of
the mistakenly disclosed documents pursuant to Fed. R. Civ. P. 26(b)
(5)(B), when applicable). Previously, some courts ruled that
inadvertent disclosure of information waives the privilege
automatically, while others decided that it did not. FRE 502(b) “opts
for the middle ground.” Reasonableness of the steps taken by the
holder of the privilege will be decided on the particular facts of each
case. The Advisory Committee Notes clarify that factors previously
employed by the courts to determine the reasonableness of
disclosure can still be persuasive. Specifically, the Notes state that:
[Various cases] set out a multifactor test for determining whether inadvertent disclosure
is a waiver. The stated factors (none of which is dispositive) are the reasonableness of
precautions taken, the time taken to rectify the error, the scope of discovery, the extent
of disclosure and the overriding issue of fairness. The rule does not explicitly codify that
test, because it is really a set of non-determinative guidelines that vary from case to
case. The rule is flexible enough to accommodate any of those listed factors. Other
considerations bearing on the reasonableness of a producing party's efforts include the
number of documents to be reviewed and the time constraints for production.
Depending on the circumstances, a party that uses advanced analytical software
applications and linguistic tools in screening for privilege and work product may be
found to have taken “reasonable steps” to prevent inadvertent disclosure. The
implementation of an efficient system of records management before litigation may also
be relevant.
909

FRE 502(b) does not require the producing party to engage in a

post-production review to determine whether any protected
communication or information has been produced by mistake. But
the rule does require the producing party to follow up on any obvious
indications that a protected communication or information has been
produced inadvertently.
If Disclosure Is Made in a State Proceeding, the More
Protective Law Will Apply Under FRE 502(c). FRE 502(c)
addresses the problems that arise when disclosure is made in a
state proceeding and the same information or communication is
offered as evidence in a subsequent federal proceeding. When the
state and federal laws are inconsistent, the federal court will apply
the law most protective of the privilege. The reason for this rule is
laid out in the Advisory Committee Notes:
If the state law is more protective (such as where the state law is that an inadvertent
disclosure can never be a waiver), the holder of the privilege or protection may well
have relied on that law when making the disclosure in the state proceeding. Moreover,
applying a more restrictive federal law of waiver could impair the state objective of
preserving the privilege or work-product protection for disclosures made in state
proceedings. On the other hand, if the federal law is more protective, applying the state
law of waiver to determine admissibility in federal court is likely to undermine the
federal objective of limiting the costs of production.
Note that this rule is not intended to change the effect of a state
court order concerning waiver. The Advisory Committee Notes point
out that under existing law (28 U.S.C. §1738) and principles of
federalism and comity, a state court order continues to be generally
enforceable in a subsequent federal proceeding. However, this
enforceability is “not absolute.” See Tucker v. Ohtsu Tire & Rubber
Co., 191 F.R.D. 495, 499 (D. Md. 2000). Under certain
circumstances, federal courts will modify or circumvent a state court
order. Thus, it may be the case that after FRE 502 federal court
orders will have greater consequences in state courts than state
court orders have in federal courts.
 Controlling Effect of a Court Order Under FRE 502(d). This
subsection authorizes a federal court to “order that the privilege or
protection is not waived by disclosure connected with the litigation
pending before the court—in which event the disclosure is also not a
waiver in any other federal or state proceeding.” This authorization
allows a party to condition her disclosure of a document or other
information that she claims to be privileged upon “opting out” from
the default provisions set by FRE 502(a) and (b). That is, a party can
argue that the information in question is privileged, but she would be
willing to disclose it if she gets full protection against disclosure of
further information by the court's order. Then, if the court issues the
protective order, it would be effective in any subsequent court
proceeding, state or federal. Moreover, the order would be effective
against all parties (in rem) and not only against the parties to the
proceeding in which it was given. Such orders can be issued with or
without the parties' agreement.
FRE 502(d) recognizes that confidentiality orders are needed to
reduce the cost of document review for purposes of discovery.
Confidentiality orders can reduce those costs effectively only when
they provide protection in subsequent suits and against

910

third parties. Without such protection, parties will carry out an

extensive and costly document review and will claim the attorney-
client privilege whenever they can plausibly do so.
Controlling Effect of a Party Agreement Under FRE 502(e). This
subsection codifies the well-established practice of using party
agreements to limit the effect of waiver by disclosure. It is important
because of its relationship to FRE 502(d). An agreement under this
subsection applies only to the documents exchanged between and
among the parties and binds only the parties to the agreement.
Unlike court orders, such agreements have no in rem effect. The
Advisory Committee Notes make clear that parties who seek
protection against nonparties must make the agreement pursuant to
a court order under FRE 502(d). As a practical matter, parties can
ask the court to issue the agreed-upon protective order to enable
them to disclose specific documents without claiming the privilege.
Controlling Effect of FRE 502. According to the Advisory
Committee Notes, subsection (f) clarifies that (1) FRE 502 protection
against waiver must be applicable in subsequent state proceedings,
and that (2) FRE 502 “applies to state law causes of action brought
in federal courts.” The first part reiterates subsection (d) and implies
that privileged communication or information disclosed in a federal
proceeding, and not waived due to application of FRE 502, cannot
be used in a subsequent state proceeding. The second part dictates
that FRE 502 will be followed even if state law provides the rule of
decision. Federal law thus always determines the consequences of a
waiver that took place in a federal proceeding. Additionally,
subsection (f) makes clear that FRE 502 should not be limited by
FRE 101 and FRE 1101, which could otherwise be seen as in
tension with this rule.
g. Potential Problems with FRE 502

The Rule Does Not Eliminate the Need to Review Documents Prior
to Disclosure. As noted above, the rule applies only to information
and communication protected by the attorney-client privilege or the
work-product doctrine. However, documents are reviewed during
discovery for various reasons other than fear of waiving these
protections. For example, rules of professional conduct, privacy
laws, or confidentiality agreements may prohibit lawyers from
breaching confidentiality or waiving the attorney-client privilege.
Failure to review documents during discovery will also potentially
produce documents protected by other privilege doctrines (e.g.,
settlement negotiations and self-evaluative documents). FRE 502
does not extinguish an attorney's responsibilities under the lawyer's
code of conduct or other legal standards, nor does it protect
information and communication protected by other privileges.
Furthermore, disclosure of protected information has the potential
to severely prejudice a case, even if the information cannot be used
directly by the receiving party. Once a receiving party has read
privileged information, the court can only prohibit its use in trial; it
cannot force the attorney to unlearn the information. The document

911

itself may reveal strategy or thinking about the case. It may contain
business-sensitive documents, such as trade secretes or processes
that should not be revealed to a competitor. The document may
expose the client to additional unrelated claims, or allow the
receiving attorney to formulate further discovery requests that will
target critical information. For all these reasons, attorneys and their
clients may find that extensive document review is necessary,
notwithstanding FRE 502.
The Constitutionality of the Rule's Application to State Court
Proceedings. Constitutional concerns arise because FRE 502, a
federally created rule, directs state courts on how to handle potential
evidence. As Henry Noyes points out, FRE 502 may face a
constitutional challenge because it is a federal action that causes a
“direct loss of state control over the operation of the state courts.”
Henry S. Noyes, Federal Rule of Evidence 502: Stirring the State
Law of Privilege and Professional Responsibility with a Federal Stick,
66 Wash. & Lee L. Rev. 673, 727 (2009). A possible response to this
argument is that it was within Congress's power to determine both
the scope of the attorney-client privilege for federal proceedings and
the effects of federal litigation behavior (waiver of the attorney-client
privilege in a federal proceeding). Also, FRE 502 was passed under
Congress's power to regulate activity that substantially affects
interstate commerce. However, the rule regulates all attorney-client
or work-product material; it is not limited to information that relates to
interstate commerce. Cf. Pierce Country v. Guillen, 537 U.S. 129
(2003) (holding a federal statute, protecting information relating to
highway safety from discovery in state courts, constitutional under
Congress's commerce clause power, because it addressed the
channels and instrumentalities of interstate commerce). Further,
while Congress passed FRE 502 to make the discovery process
more efficient and cost-effective, there are no findings about the
burden and cost of privilege review on interstate commerce.
The Rule May Not Significantly Reduce the Cost of Discovery.
One of the admitted goals of FRE 502 is to reduce the cost of
discovery. The theory is that limiting the necessity for pre-disclosure
review will significantly reduce cost. However, under FRE 502(b),
pre-disclosure review must be “reasonable” to prevent waiver;
without further elaboration of this requirement, attorneys may
continue to impose extensive reviews to ensure the process is
considered reasonable. There are two additional problems with this
contention. First, as discussed above, there are numerous reasons
why parties will continue to engage in intensive pre-disclosure
review. Second, if the parties are not concerned with negative
implications of disclosing documents, the new rule may encourage
parties to turn over too much information. These “data dumps” shift
the cost of discovery from the disclosing party to the receiving party.
Importantly, the overall cost likely increases as well, because the
receiving party is likely to be less efficient at sorting through the
documents.
The Rule May Jeopardize the Attorney-Client Privilege. As
mentioned above, an FRE 502 order can be initiated by a judge
without the consent of the parties. A short time-frame imposed on
discovery requests combined with a mandated FRE 502

912

order may effectively force attorneys to hand over confidential

information. However, the attorney-client privilege exists for the
benefit of the client and is beneficial because it creates incentives for
the client to disclose information to her attorney. If FRE 502
damages the confidentiality of the relationship, it may have
significant, counter-productive, long-term consequences.
 KEY POINTS
1. The attorney-client privilege extends to confidential
communications between an attorney and client made for the
purpose of obtaining legal advice. The privilege does not
cover communications made to a lawyer for the purpose of
obtaining any other kind of advice, such as business or tax
advice. Determining which is which is not always easy.
2. The client is the holder of the privilege, but the privilege may
be claimed on behalf of the client by the attorney and other
individuals responsible for the client's interests.
3. The privilege extends over communications between joint
clients and their attorney, and also covers “common interest”
or “joint defense” cases, in which multiple parties and multiple
attorneys are involved.
4. A communication does not necessarily have to be verbal.
However, reasonable precautions must be taken by the
parties to ensure confidentiality for the privilege to attach.
5. The privilege is not waived due to inadvertent disclosure in a
federal proceeding if reasonable steps were taken to prevent
disclosure.

NOTES AND QUESTIONS

1. The fact that FRE 502 is limited to attorney-client and work-
product-protected information may have a significant impact on the
effectiveness of the rule. Do you understand why a protective order
under FRE 502 may not entice lawyers to forgo pre-disclosure
document review?
2. Under FRE 502(a), a party that intentionally produces a
privileged document may face a subject matter waiver. However, a
party that unintentionally produces a privileged document will never
face a subject matter waiver and will only be found to waive the
privilege as to the disclosed document if the steps taken to protect
the document and to rectify the error were unreasonable. Thus, FRE
502(b) requires courts to determine whether disclosure was
“inadvertent” and whether “reasonable steps” were taken. How much
room does this leave for courts to determine the definition of
“inadvertent”? See Silverstein v. Federal Bureau of Prisons, 2009
U.S. Dist. LEXIS 121753 (D. Colo. Dec. 14, 2009) (finding that
502(b) covers “unintended, rather than mistaken, disclosure,” and
disclosure was not inadvertent when document was mislabeled).
Similarly, after reading the Advisory Committee Notes for subsection
(b), are you confident that you can employ “reasonable steps” to
prevent waiving

913

the privilege through unintentional disclosure? What does it mean

to take “reasonable steps”? How much is still left to the discretion of
the judge? See Amobi v. D.C. Dept. of Corr., 262 F.R.D. 45 (D.D.C.
2009) (finding that reasonable steps were not taken when
procedures were not described to the court and there was “no
indication of what specific efforts were taken to prevent disclosure”);
Rhoads Industries, Inc. v. Building Materials Corp., 254 F.R.D. 216
(E.D. Pa. 2008) (finding steps taken to prevent disclosure were not
reasonable after reviewing multiple factors and specifically
concerned that party claiming privilege did not prepare for discovery
sufficiently far in advance). Do you think that a judge's definition of
“reasonable” or “inadvertent” may be affected by the old waiver rules
in his or her Circuit?
3. FRE 502 frequently refers to “subsequent state and federal
proceedings,” specifically indicating that the federal ruling governs
subsequent determinations on the scope of a waiver. The Advisory
Committee Notes indicate that this is necessary “to assure protection
and predictability.” Why is this so? Does it help if you know that
plaintiff groups frequently share documents that are produced during
a lawsuit? Would the rule be effective if protective orders ceased at
the end of trial? How much confidence would an FRE 502 order give
defendants if it was not enforceable in subsequent procedures and
against third parties?
 4. As a defense attorney, do you want the judge to unilaterally
impose an FRE 502 order?

PROBLEMS
12.1. Brent Carson and Gloria Green were charged with importing
cocaine, and retained separate counsel. At a meeting
involving Brent, Gloria, and Gloria's attorney, Gloria
supposedly said that Brent did not know anything about the
plan to import cocaine. Gloria subsequently fled the
jurisdiction, and Brent is now on trial. He calls Gloria's
attorney to testify about her statement that he was not
involved in the cocaine scheme. The prosecutor has objected
to this testimony and asserted the attorney-client privilege on
behalf of Gloria. How should the court rule?
12.2. Metro Display Advertising, Inc. (MDA) was in the business of
buying and selling advertising space on bus stop shelters
before it was forced to declare bankruptcy in the aftermath of
an SEC investigation. The government has charged Munoz,
one of MDA's independent sales agents, with mail fraud and
has subpoenaed Sherron to testify against him. Sherron was
once Munoz's attorney in an unrelated matter prior to either's
employment with MDA. Subsequently, Sherron was retained
by MDA. Munoz communicated to Sherron about the current
charges against him, mistakenly believing that Sherron was
representing him as well as MDA. Munoz now seeks to
prevent Sherron from testifying about his damaging
statements by invoking his attorney-client privilege. Should the
court allow Sherron's testimony?
12.3. Dunlap was the director of the Lincoln Challenge Project, a
betterment program for teenaged high school dropouts. In
1994, he hired Peters to teach in

914
the program, requiring him to consent to criminal and educational
background checks as a condition of his employment. When
Peters sought to have his contract renewed in 1996, Dunlap
informed him that he would be required to sign a much
broader release consenting to, among other things, the full
and complete disclosure of the records of attorneys, whether
representing him or another person, in any case in which
Peters has had an interest. Peters refused to sign the release
and his employment contract was not renewed. Peters sued
Dunlap. Can an employer require an employee to waive all
attorney-client privileges as a condition of employment? Could
any constitutional argument(s) be made by Peters to protect
the privileged information?
12.4. Suburban Sew 'N Sweep is a retail store selling sewing
machines manufactured and distributed by Fritz, Inc. A few
years ago Suburban began suspecting that Fritz was
engaging in unlawful price discrimination and conspiring to
restrain trade in violation of the Clayton Act and the Sherman
Antitrust Act. To confirm its suspicions, Suburban began
regularly searching the Dumpster behind Fritz's office. Over
the course of two years, Suburban found hundreds of relevant
documents, many of which were confidential correspondences
between Fritz's officers and Fritz's corporate counsel. It is
uncontested that the documents were intended to be
confidential and would be protected by attorney-client privilege
if they had not been discovered by Suburban. Are these
documents privileged?
12.5. Habs Brewing Company brought suit against Blue Jay
Importers, alleging patent and trademark infringement
resulting from Blue Jay's marketing of “dry” beer. Blue Jay
motioned the court to compel production of certain
documents, which Habs claims are protected by the attorney-
client privilege. The 15 documents for which the plaintiffs are
asserting the privilege were initiated by or received by
Beardsley. Beardsley is a member of the legal department of
Habs, and serves as their Intellectual Property Officer.
 Although not an attorney, Beardsley is registered as a patent
agent before the U.S. Patent and Trademark Office. The
Patent office allows nonlawyer patent agents to perform
certain legal tasks before it, such as giving patent advice and
preparing patent applications. Patent agents do not have any
corresponding authorization to practice trademark law. Can
Habs successfully assert the attorney-client privilege with
respect to the communications by and to Beardsley? Does it
make a difference whether such communications involved
patent or trademark law?

NOTE ON THE ATTORNEY-CLIENT PRIVILEGE, THE WORK-

PRODUCT DOCTRINE, AND THE ETHICAL DUTY OF
CONFIDENTIALITY

Three sources protect confidentiality in the attorney-client

relationship: the attorney-client privilege, the work-product doctrine,
and the ethical duty of confidentiality. While the attorney-client
privilege and work-product doctrine find their source in the law of
evidence, the duty of confidentiality is grounded in the code of
professional ethics.

915

The work-product doctrine often overlaps or supplements the

attorney-client privilege. Protection for the “work product” of an
attorney or party has been codified under Fed. R. Civ. P. 26(b)(3).
Under Rule 26(b)(3), a party may obtain discovery of documents and
tangible things prepared “in anticipation of litigation” by an attorney
or representative of the opposing party only on a showing of
“substantial need” and on a showing that the party seeking discovery
is unable, without undue hardship, to obtain the substantial
equivalent from alternative means. Furthermore, even if the required
showing is put forth, the court must protect against disclosure of “the
mental impressions, conclusions, opinions, or legal theories of an
attorney or other representative of a party concerning the litigation.”
While both the attorney-client privilege and work-product doctrine act
as a bar to discovery, there exist some crucial distinctions between
the two. First, the work-product doctrine recognizes a qualified
privilege, while the attorney-client privilege is usually considered
absolute, although this is slowly beginning to change. See, for
example, Greater Newburyport Clamshell Alliance v. Public Service
Co. of N.H., 838 F.2d 13, 19 (1st Cir. 1988) (in civil damages action,
“fairness requires that the privilege holder surrender the privilege to
the extent that it will weaken, in a meaningful way, the defendant's
ability to defend”); In re Grand Jury Proc., Des Moines, Iowa, 568
F.2d 555, 557 (8th Cir. 1977) (opponent's need relevant to a
determination of privilege). At least with respect to discovery of
“documents and tangible things,” as opposed to “mental
impressions, conclusions, opinions, or legal theories of an attorney,”
work-product protection is subject to a substantial need test. By
contrast, if the attorney-client privilege is applicable, a showing of
need will typically not overcome the privilege.
Second, whereas the work-product doctrine applies only to
information prepared “in anticipation of litigation,” the attorney-client
privilege protects confidential communications, regardless of
whether litigation is expected. Although the scope of work-product
protection may seem unduly limited by the litigation requirement, in
reality the work-product doctrine covers a much larger category of
material than the attorney-client privilege. The work-product doctrine
applies to all information collected by the attorney or the agent of the
client insofar as it is gathered in anticipation of litigation. Most
Circuits hold that a document is prepared in “anticipation of litigation”
if the document is prepared “because of” the upcoming litigation. See
United States v. Adlman, 134 F.3d 1194 (2d Cir. 1998). However, the
Fifth Circuit applies a narrower “primary purpose” test—protecting a
document only if the primary purpose of the document is to prepare
for litigation. United States v. El Paso Co., 682 F.2d 530 (5th Cir.
1982). Under both standards, the protection applies not only to
information passing from client to attorney, but to information from
outside sources as well, such as a statement of a nonparty witness
to an attorney as well as work compiled by an investigator, without
the attorney's participation. In contrast, the attorney-client privilege
applies solely to confidential communications between attorney and
client, or representatives on either party's behalf.
A third source for the protection of confidentiality in attorney-client
relations is the ethical duty of a lawyer to keep confidential matters
about a client's affairs. The American Bar Association's Model Rules
of Professional Conduct set forth this obligation in Rule 1.6, which as
amended in 2005 now states:

916
(a) A lawyer shall not reveal information relating to the representation of a client
unless the client gives informed consent, the disclosure is impliedly authorized in order
to carry out the representation or the disclosure is permitted by paragraph (b).
(b) A lawyer may reveal information relating to the representation of a client to the
extent the lawyer reasonably believes necessary:
(1) to prevent reasonably certain death or substantial bodily harm;
(2) to prevent the client from committing a crime or fraud that is reasonably certain
to result in substantial injury to the financial interests or property of another and in
furtherance of which the client has used or is using the lawyer's services;
(3) to prevent, mitigate or rectify substantial injury to the financial interests or
property of another that is reasonably certain to result or has resulted from the
client's commission of a crime or fraud in furtherance of which the client has used the
lawyer's services;
(4) to secure legal advice about the lawyer's compliance with these Rules;
(5) to establish a claim or defense on behalf of the lawyer in a controversy
between the lawyer and the client, to establish a defense to a criminal charge or civil
claim against the lawyer based upon conduct in which the client was involved, or to
respond to allegations in any proceeding concerning the lawyer's representation of
the client; or
(6) to comply with other law or a court order.

Comment Two accompanying Model Rule 1.6 provides the

rationale behind the ethical obligation.
A fundamental principle in the client-lawyer relationship is that, in the absence of the
client's informed consent, the lawyer must not reveal information relating to the
representation. . . . This contributes to the trust that is the hallmark of the client-lawyer
relationship. The client is thereby encouraged to seek legal assistance and to
communicate fully and frankly with the lawyer even as to embarrassing or legally
damaging subject matter. The lawyer needs this information to represent the client
effectively and, if necessary, to advise the client to refrain from wrongful conduct. . . .
 The duty of confidentiality is an important mechanism by which the
rules of ethics protect these interests. The rule was relaxed slightly in
the 2005 update, now allowing the lawyer to breach confidentiality to
prevent any reasonably certain bodily harm, no longer limited to
harm caused by a client's criminal act. Further, in the wake of
financial scandals such as Enron, the updated rule allows for a
breach of confidentiality to prevent a client's crime or fraud from
causing harm to financial interests or property. Despite these few
exceptions, the ethical duty of confidentiality remains essential to the
protection of the client-lawyer relationship. Violation of Rule 1.6 may
lead to professional censure and possible suspension or loss of
license.
Comment Three to Rule 1.6 clarifies the distinction between
evidentiary privileges and the ethical duty of confidentiality:

917
The principle of client-lawyer confidentiality is given effect by related bodies of law: the
attorney-client privilege, the work product doctrine and the rule of confidentiality
established in professional ethics. The attorney-client privilege and work-product
doctrine apply in judicial and other proceedings in which a lawyer may be called as a
witness or otherwise required to produce evidence concerning a client. The rule of
client-lawyer confidentiality applies in situations other than those where evidence is
sought from the lawyer through compulsion of law. The confidentiality rule, for example,
applies not only to matters communicated in confidence by the client but also to all
information relating to the representation, whatever its source. A lawyer may not
disclose such information except as authorized or required by the Rules of Professional
Conduct or other law. . . .

The duty of confidentiality covers much more than the privilege—it

covers all communications between a client and an attorney,
including those that are not specifically tied to seeking legal advice,
and those that are not meant to be confidential. The duty of
confidentiality also covers more than just verbal communications,
unlike the attorney-client privilege. However, a lawyer can still be
called on to testify regarding these communications, so the
protection afforded by the duty of confidentiality may not be as great
as that afforded by the privilege.
 An interesting empirical question is whether the lawyer's ethical
obligation to maintain confidentiality is sufficiently analogous to the
privilege to encourage communications between client and attorney.
If clients can be encouraged by the attorney's ethical obligation not
to disclose information, then the attorney-client privilege may not be
needed. See, in this regard, ABA Code of Professional
Responsibility, Ethical Consideration 4-1:
A lawyer should be fully informed of all the facts of the matter he is handling in order for
his client to obtain the full advantage of our legal system. It is for the lawyer in the
exercise of his independent professional judgment to separate the relevant and
important from the irrelevant and unimportant. The observance of the ethical obligation
of a lawyer to hold inviolate the confidences and secrets of his client not only facilitates
the full development of facts essential to proper representation of the client but also
encourages laymen to seek early legal assistance.

NOTES AND QUESTIONS

1. How absolute should the protection be for a client's confidential
communications or a lawyer's thought processes and other creative
efforts? Even if the existence of rules of confidentiality produce
benefits, isn't it conceivable in a particular case that their costs would
exceed their benefits? What should happen in such cases? In
thinking about this issue, do not neglect the costs of deciding on a
case-by-case basis if the costs of confidentiality exceed the benefits.
If a witness uses a document protected by the attorney-client
privilege or the work-product doctrine to refresh the witness's
memory before testifying, should the judge be able to order
production of the document pursuant to FRE 612?

918

2. The American Bar Association's Model Code of Professional

Responsibility, the predecessor to the Model Rules of Professional
Conduct, included a similar confidentiality provision. ABA Model
Code of Professional Responsibility Disciplinary Rule 4-101. The
exception for contemplated criminal conduct by a client, however,
extended to all crimes, and there was also an exception permitting a
lawyer to reveal confidences “when required by law or court order.”
With respect to the omission of this latter exception in the Model
Rules, the Comment accompanying Rule 1.6 states: “Whether
another provision of law supersedes Rule 1.6 is a matter of
interpretation beyond the scope of these Rules, but a presumption
should exist against such a supersession.” How compelling a case
for confidentiality does the Comment to Rule 1.6 make? Do the rule
and commentary deal adequately with the relationship between the
ethical obligation of confidentiality and the attorney-client privilege?
Is Rule 1.6's permission for a lawyer to disclose a client's
contemplated criminal conduct too narrow? Why should there be a
“presumption” that provisions of law mandating disclosure do not
supersede Rule 1.6's obligation of confidentiality?
3. There is one situation in which the Model Rules of Professional
Conduct specifically provide that the rule of confidentiality is
superseded. See Model Rule 3.3:

(a) A lawyer shall not knowingly:

(1) make a false statement of material fact or law to a tribunal;
(2) fail to disclose a material fact to a tribunal when disclosure is necessary to
avoid assisting a criminal or fraudulent act by the client;
(3) fail to disclose to the tribunal legal authority in the controlling jurisdiction known
to the lawyer to be directly adverse to the position of the client and not disclosed by
opposing counsel; or
(4) offer evidence that the lawyer knows to be false. If a lawyer has offered
material evidence and comes to know of its falsity, the lawyer shall take reasonable
remedial measures.
(b) The duties stated in paragraph (a) continue to the conclusion of the proceeding,
and apply even if compliance requires disclosure of information otherwise protected by
Rule 1.6.
(c) A lawyer may refuse to offer evidence that the lawyer reasonably believes is
false.

PROBLEMS
12.6. Al Driver, who is suspected of bank robbery, tells his attorney,
George Shippers, where to locate the mask and gun used in
the robbery. Shippers retrieves the mask and gun and places
 them in the office safe. Has Shippers acted unethically? What
disclosures about the gun and mask is he now permitted or
required to make?
What if it had been Shippers's secretary who had, without
Shippers's permission, retrieved the mask and gun? In either
case, should it matter (a) whether the police or some third
person would have been likely to find the mask and gun

919

or (b) whether the initial information about the mask and gun
came from some person other than the client?
After Shippers first learned about the mask and gun, what
would have been the appropriate course of action for him to
take?
12.7. Sarah Johnson, an attorney, represents Oscar Rivers, who
has been charged with murder. Rivers and his girlfriend, Elsie
Lewis, are both prepared to testify that they were together at
Elsie's apartment at the time of the killing. Oscar has
consistently told Sarah this alibi story; Elsie, however, has
confided in Sarah that she was not with Oscar at the time of
the killing and that Oscar admitted to her that he was the
murderer. The only eyewitness to the killing, Elvira Dugan, is
an elderly woman with failing eyesight.
What should Sarah do if both Oscar and Elsie are adamant
about testifying that they were together at Elsie's apartment
when the murder was committed? Does your answer depend
on whether Sarah believes Oscar or Elsie?
Sarah is convinced that she can neutralize Elvira Dugan's
eyewitness testimony during cross-examination. Is there any
problem with her doing so if she is convinced that Oscar is
guilty and that Elvira's identification is in fact accurate?

2. The Corporate Client

The attorney-client privilege extends not only to individual clients but
also to corporate and other organizational clients. Application of the
privilege in this context has proved troublesome because an
organization can make confidential communications only through
individual members. Thus, the question necessarily arises: Who can
speak for the organization for the purposes of the attorney-client
privilege? Or to phrase the issue in terms of the language of
Proposed FRE 503: Who is a “representative of the client”?
Courts are divided as to the extent of the privilege in the corporate
context. As the law has evolved on the subject, three approaches
can be discerned. Under the early decisions, any officer, employee,
or member of an organization was a representative of the
organization. See, e.g., United States v. United Shoe Mach. Corp.,
89 F. Supp. 357 (D. Mass. 1950). Although this definition had the
advantage of ease in application, it was widely criticized for being too
broad.
A second approach to defining representative of the client was the
“control group” test. See City of Philadelphia v. Westinghouse Elec.
Corp., 210 F. Supp. 483 (E.D. Pa. 1962). According to this test an
employee's communication is privileged only if the employee “is in a
position to control or even to take a substantial part in a decision
about any action which the corporation may take upon the advice of
the attorney.” Although widely adopted, the control group test was
subject to criticism on two grounds. First, it was unclear precisely to
whom the privilege would apply, and this lack of certainty would
inhibit candid communication. Second, because the control group
test tended to limit the attorney-client privilege to communications by
upper level management, the test did not go far enough in protecting
communications of employees who might have information that
would be critical in order for the attorney to give sound legal advice
to the organization.

920

A third approach to defining representative of the client was the

“subject matter” test. See Harper & Row Publishers, Inc. v. Decker,
423 F.2d 487 (7th Cir. 1970), aff'd mem., 400 U.S. 955 (1971). Under
this test an employee's communication is privileged if the employee
“makes the communication at the direction of his superiors” and the
subject matter of the communication “is the performance by the
employee of the duties of his employment.” This test avoids both the
problem of bringing within the scope of the privilege communications
by any and all employees and the problem of limiting the privilege to
communications from members of the control group. But is the
subject matter test itself too broad? Would the first prong of the test
be satisfied if every employee were routinely directed to channel all
business reports through corporate counsel? See Note, Evidence—
Privileged Communications—The Attorney-Client Privilege in the
Corporate Setting: A Suggested Approach, 69 Mich. L. Rev. 360
(1970). Would the first prong be satisfied if any superior for any
reason directed the employee to communicate with the attorney?
The drafters of the Federal Rules chose not to define
“representative of the client.” Without elaboration, the Advisory
Committee concluded that the matter was “too hot to handle” and
“better left to resolution on a case-by-case basis.”16 The Supreme
Court addressed the issue in Upjohn.

UPJOHN CO. V. UNITED STATES

449 U.S. 383 (1981)

Justice R delivered the opinion of the Court.
We granted certiorari in this case to address important questions
concerning the scope of the attorney-client privilege in the corporate
context and the applicability of the work-product doctrine in
proceedings to enforce tax summonses. . . . We . . . conclude that
the attorney-client privilege protects the communications involved in
this case from compelled disclosure and that the work-product
doctrine does apply in tax summons enforcement proceedings.
I
Petitioner Upjohn Co. manufactures and sells pharmaceuticals here
and abroad. In January 1976 independent accountants conducting
an audit of one of Upjohn's foreign subsidiaries discovered that the
subsidiary made payments to or for the benefit

921

of foreign government officials in order to secure government

business. The accountants so informed petitioner Mr. Gerard
Thomas, Upjohn's Vice President, Secretary, and General Counsel.
Thomas is a member of the Michigan and New York Bars, and has
been Upjohn's General Counsel for 20 years. He consulted with
outside counsel and R. T. Parfet, Jr., Upjohn's Chairman of the
Board. It was decided that the company would conduct an internal
investigation of what were termed “questionable payments.” As part
of this investigation the attorneys prepared a letter containing a
questionnaire which was sent to “All Foreign General and Area
Managers” over the Chairman's signature. The letter began by
noting recent disclosures that several American companies made
“possibly illegal” payments to foreign government officials and
emphasized that the management needed full information
concerning any such payments made by Upjohn. The letter indicated
that the Chairman had asked Thomas, identified as “the company's
General Counsel,” “to conduct an investigation for the purpose of
determining the nature and magnitude of any payments made by the
Upjohn Company or any of its subsidiaries to any employee or
official of a foreign government.” The questionnaire sought detailed
information concerning such payments. Managers were instructed to
treat the investigation as “highly confidential” and not to discuss it
with anyone other than Upjohn employees who might be helpful in
providing the requested information. Responses were to be sent
directly to Thomas. Thomas and outside counsel also interviewed
the recipients of the questionnaire and some 33 other Upjohn
officers or employees as part of the investigation.
On March 26, 1976, the company voluntarily submitted a
preliminary report to the Securities and Exchange Commission on
Form 8-K disclosing certain questionable payments. A copy of the
report was simultaneously submitted to the Internal Revenue
Service, which immediately began an investigation to determine the
tax consequences of the payments. Special agents conducting the
investigation were given lists by Upjohn of all those interviewed and
all who had responded to the questionnaire. On November 23, 1976,
the Service issued a summons pursuant to 26 U.S.C. sec. 7602
demanding production of:
All files relative to the investigation conducted under the supervision of Gerard Thomas
to identify payments to employees of foreign governments and any political
contributions made by the Upjohn Company or any of its affiliates since January 1,
1971 and to determine whether any funds of the Upjohn Company had been improperly
accounted for on the corporate books during the same period.
The records should include but not be limited to written questionnaires sent to
managers of the Upjohn Company's foreign affiliates, and memorandums or notes of
the interviews conducted in the United States and abroad with officers and employees
of the Upjohn Company and its subsidiaries. . . .
The company declined to produce the documents specified in the
second paragraph on the grounds that they were protected from
disclosure by the attorney-client privilege and constituted the work
product of attorneys prepared in anticipation of litigation. . . . [T]he
United States filed a petition seeking enforcement of the summons . .
. in the United States District Court for the Western District of
Michigan. That court adopted the recommendation of a Magistrate
who concluded that the

922

summons should be enforced. Petitioners appealed to the Court of

Appeals for the Sixth Circuit which rejected the Magistrate's finding
of a waiver of the attorney-client privilege, . . . but agreed that the
privilege did not apply “[t]o the extent that the communications were
made by officers and agents not responsible for directing Upjohn's
actions in response to legal advice . . . for the simple reason that the
communications were not the client's.” . . . The court reasoned that
accepting petitioners' claim for a broader application of the privilege
would encourage upper-echelon management to ignore unpleasant
facts and create too broad a “zone of silence.” Noting that Upjohn's
counsel had interviewed officials such as the Chairman and
President, the Court of Appeals remanded to the District Court so
that a determination of who was within the “control group” could be
made. In a concluding footnote the court stated that the work-product
doctrine “is not applicable to administrative summonses issued
under 26 U.S.C. sec. 7602.” . . .
II
. . . The attorney-client privilege is the oldest of the privileges for
confidential communications known to the common law. . . . Its
purpose is to encourage full and frank communication between
attorneys and their clients and thereby promote broader public
interests in the observance of law and administration of justice. The
privilege recognizes that sound legal advice or advocacy serves
public ends and that such advice or advocacy depends upon the
lawyer's being fully informed by the client. [I]n Fisher v. United
States, 425 U.S. 391, 403 (1976), we recognized the purpose of the
privilege to be “to encourage clients to make full disclosure to their
attorneys.” This rationale for the privilege has long been recognized
by the Court. . . . Admittedly complications in the application of the
privilege arise when the client is a corporation, which in theory is an
artificial creature of the law, and not an individual; but this Court has
assumed that the privilege applies when the client is a corporation, .
. . and the Government does not contest the general proposition.
The Court of Appeals, however, considered the application of the
privilege in the corporate context to present a “different problem,”
since the client was an inanimate entity and “only the senior
management, guiding and integrating the several operations, . . . can
be said to possess an identity analogous to the corporation as a
whole.” . . . The first case to articulate the so-called “control group
test” adopted by the court below, Philadelphia v. Westinghouse
Electric Corp., 210 F. Supp. 483, 485 (ED Pa.), petition for
mandamus and prohibition denied sub nom. General Electric Co. v.
Kirkpatrick, 312 F.2d 742 (CA3 1962), cert. denied, 372 U.S. 943
(1963), reflected a similar conceptual approach:
 Keeping in mind that the question is, Is it the corporation which is seeking the lawyer's
advice when the asserted privileged communication is made?, the most satisfactory
solution, I think, is that if the employee making the communication, of whatever rank he
may be, is in a position to control or even to take a substantial part in a decision about
any action which the corporation may take upon the advice of the attorney, . . . then, in
effect, he is (or personifies) the corporation when he makes his disclosure to the lawyer
and the privilege would apply. (Emphasis supplied [by the Court].)

923

Such a view, we think, overlooks the fact that the privilege exists to
protect not only the giving of professional advice to those who can
act on it but also the giving of information to the lawyer to enable
them to give sound and informed advice. The first step in the
resolution of any legal problem is ascertaining the factual
background and sifting through the facts with an eye to the legally
relevant. See ABA Code of Professional Responsibility, Ethical
Consideration 4-1:
A lawyer should be fully informed of all the facts of the matter he is handling in order for
his client to obtain the full advantage of our legal system. It is for the lawyer in the
exercise of his independent professional judgment to separate the relevant and
important from the irrelevant and unimportant. The observance of the ethical obligation
of a lawyer to hold inviolate the confidences and secrets of his client not only facilitates
the full development of facts essential to proper representation of the client but also
encourages laymen to seek early legal assistance.
. . . In the case of the individual client the provider of information and
the person who acts on the lawyer's advice are one and the same. In
the corporate context, however, it will frequently be employees
beyond the control group as defined by the court below—“officers
and agents . . . responsible for directing [the company's] actions in
response to legal advice”—who will possess the information needed
by the corporation's lawyers. Middle-level—and indeed lower-level—
employees can, by actions within the scope of their employment,
embroil the corporation in serious legal difficulties, and it is only
natural that these employees would have the relevant information
needed by corporate counsel if he is adequately to advise the client
with respect to such actual or potential difficulties. . . .
The control group test adopted by the court below thus frustrates
the very purpose of the privilege by discouraging the communication
of relevant information by employees of the client to attorneys
seeking to render legal advice to the client corporation. The
attorney's advice will also frequently be more significant to
noncontrol group members than to those who officially sanction the
advice, and the control group test makes it more difficult to convey
full and frank legal advice to the employees who will put into effect
the client corporation's policy. See, e.g., Duplan Corp. v. Deering
Milliken, Inc., 397 F. Supp. 1146, 1164 (S.C. 1974) (“After the lawyer
forms his or her opinion, it is of no immediate benefit to the
Chairman of the Board or the President. It must be given to the
corporate personnel who will apply it”).
The narrow scope given the attorney-client privilege by the court
below not only makes it difficult for corporate attorneys to formulate
sound advice when their client is faced with a specific legal problem
but also threatens to limit the valuable efforts of corporate counsel to
ensure their client's compliance with the law. In light of the vast and
complicated array of regulatory legislation confronting the modern
corporation, corporations, unlike most individuals, “constantly go to
lawyers to find out how to obey the law,” Burnham, The Attorney-
Client Privilege in the Corporate Arena, 24 Bus. Law. 901, 913
(1969), particularly since compliance with the law in this area is
hardly an instinctive matter, see, e.g., United States v. United States
Gypsum Co., 438 U.S. 422, 440-441 (1978) (“the behavior
proscribed by the [Sherman] Act is often difficult to distinguish from
the gray zone of socially acceptable and economically

924

justifiable business conduct”).17 The test adopted by the court

below is difficult to apply in practice, though no abstractly formulated
and unvarying “test” will necessarily enable courts to decide
questions such as this with mathematical precision. But if the
purpose of the attorney-client privilege is to be served, the attorney
and client must be able to predict with some degree of certainty
whether particular discussions will be protected. An uncertain
privilege, or one which purports to be certain but results in widely
varying applications by the courts, is little better than no privilege at
all. The very terms of the test adopted by the court below suggest
the unpredictability of its application. The test restricts the availability
of the privilege to those officers who play a “substantial role” in
deciding and directing a corporation's legal response. Disparate
decisions in cases applying this test illustrate its unpredictability.
Compare, e.g., Hogan v. Zletz, 43 F.R.D. 308, 315-316 (N.D. Okla.
1967), aff'd in part sub nom. Natta v. Hogan, 392 F.2d 686 (CA10
1968) (control group includes managers and assistant managers of
patent division and research and development department), with
Congoleum Industries, Inc. v. GAF Corp., 49 F.R.D. 82, 83-85 (E.D.
Pa. 1969), aff'd, 478 F.2d 1398 (CA3 1973) (control group includes
only division and corporate vice presidents, and not two directors of
research and vice president for production and research).
The communications at issue were made by Upjohn employees18
to counsel for Upjohn acting as such, at the direction of corporate
superiors in order to secure legal advice from counsel. As the
Magistrate found, “Mr. Thomas consulted with the Chairman of the
Board and outside counsel and thereafter conducted a factual
investigation to determine the nature and extent of the questionable
payments and to be in a position to give legal advice to the company
with respect to the payments.” (Emphasis supplied [by the Court].). .
. . Information, not available from upper-echelon management, was
needed to supply a basis for legal advice concerning compliance
with securities and tax laws, foreign laws, currency regulations,
duties to shareholders, and potential litigation in each of these areas.
The communications concerned matters within the scope of the
employees' corporate duties, and the employees themselves were
sufficiently aware that they were being questioned in order that the
corporation could obtain legal advice. The questionnaire identified
Thomas as “the company's General Counsel” and referred in its
opening sentence to the possible illegality of payments such as the
ones on which information was sought. . . . A statement of policy
accompanying the questionnaire clearly indicated the legal
implications of the investigation. The policy statement was issued “in
order that there be no uncertainty

925

in the future as to the policy with respect to the practices which are
the subject of this investigation.” It began “Upjohn will comply with all
laws and regulations,” and stated that commissions or payments “will
not be used as a subterfuge for bribes or illegal payments” and that
all payments must be “proper and legal.” Any future agreements with
foreign distributors or agents were to be approved “by a company
attorney” and any questions concerning the policy were to be
referred “to the company's general Counsel.” . . . This statement was
issued to Upjohn employees worldwide, so that even those
interviewees not receiving a questionnaire were aware of the legal
implications of the interviews. Pursuant to explicit instructions from
the Chairman of the Board, the communications were considered
“highly confidential” when made, . . . and have been kept confidential
by the company. Consistent with the underlying purposes of the
attorney-client privilege, these communications must be protected
against compelled disclosure.
The Court of Appeals declined to extend the attorney-client
privilege beyond the limits of the control group test for fear that doing
so would entail severe burdens on discovery and create a broad
“zone of silence” over corporate affairs. Application of the attorney-
client privilege to communications such as those involved here,
however, puts the adversary in no worse position than if the
communications had never taken place. The privilege only protects
disclosure of communications; it does not protect disclosure of the
underlying facts by those who communicated with the attorney. . . .
Here the Government was free to question the employees who
communicated with Thomas and outside counsel. Upjohn has
provided the IRS with a list of such employees, and the IRS has
already interviewed some 25 of them. While it would probably be
more convenient for the Government to secure the results of
petitioner's internal investigation by simply subpoenaing the
questionnaires and notes taken by petitioner's attorneys, such
considerations of convenience do not overcome the policies served
by the attorney-client privilege. . . .
Needless to say, we decide only the case before us, and do not
undertake to draft a set of rules which should govern challenge to
investigatory subpoenas. Any such approach would violate the spirit
of Federal Rule of Evidence 501. See S. Rep. No. 93-1277, p.13
(1974) (“the recognition of a privilege based on a confidential
relationship . . . should be determined on a case-by-case basis”). . . .
While such a “case-by-case” basis may to some slight extent
undermine desirable certainty in the boundaries of the attorney-client
privilege, it obeys the spirit of the Rules. At the same time we
conclude that the narrow “control group test” sanctioned by the Court
of Appeals in this case cannot, consistent with “the principles of the
common law as . . . interpreted . . . in the light of reason and
experience,” Fed. Rule Evid. 501, govern the development of the law
in this area.
III
Our decision that the communications by Upjohn employees to
counsel are covered by the attorney-client privilege disposes of the
case so far as the responses to the questionnaires and any notes
reflecting responses to interview questions are concerned. The
summons reaches further, however, and Thomas has testified that
his notes and memoranda of interviews go beyond recording
responses to his questions. . . . To the

926

extent that the material subject to the summons is not protected by

the attorney-client privilege as disclosing communications between
an employee and counsel, we must reach the ruling by the Court of
Appeals that the work-product doctrine does not apply to
summonses issued under 26 U.S.C. sec. 7602.19 The Government
concedes, wisely, that the Court of Appeals erred and that the work-
product doctrine does apply to IRS summonses. . . . This doctrine
was announced by the Court over 30 years ago in Hickman v. Taylor,
329 U.S. 495 (1947). In that case the Court rejected “an attempt,
without purported necessity or justification, to secure written
statements, private memoranda and personal recollections prepared
or formed by an adverse party's counsel in the course of his legal
duties.” Id., at 510. The Court noted that “it is essential that a lawyer
work with a certain degree of privacy” and reasoned that if discovery
of the material sought were permitted
much of what is now put down in writing would remain unwritten. An attorney's
thoughts, heretofore inviolate, would not be his own. Inefficiency, unfairness and sharp
practices would inevitably develop in the giving of legal advice and in the preparation of
cases for trial. The effect on the legal profession would be demoralizing. And the
interests of the clients and the cause of justice would be poorly served. [Id., at 511.]
The “strong public policy” underlying the work-product doctrine was
reaffirmed in United States v. Nobles, 422 U.S. 225, 236-240 (1975),
and has been substantially incorporated in Federal Rule of Civil
Procedure 26(b)(3).20
. . . While conceding the applicability of the work-product doctrine,
the Government asserts that it has made a sufficient showing of
necessity to overcome its protections. The Magistrate apparently so
found. . . . The Government relies on the following language in
Hickman:
We do not mean to say that all written materials obtained or prepared by an adversary's
counsel with an eye toward litigation are necessarily free from discovery in all cases.
Where relevant and nonprivileged facts remain hidden in an attorney's file and where
production of those facts is essential to the preparation of one's case, discovery may
properly be had. . . . And production might be justified where the witnesses are no
longer available or can be reached only with difficulty. [Hickman, 329 U.S., at 511.]

The Government stresses that interviewees are scattered across the

globe and that Upjohn has forbidden its employees to answer
questions it considers irrelevant. The

927

above-quoted language from Hickman, however, did not apply to

“oral statements made by witnesses . . . whether presently in the
form of [the attorney's] mental impressions or memoranda.” Id., at
512. As to such material the Court did “not believe that any showing
of necessity can be made under the circumstances of this case so as
to justify production. . . . If there should be a rare situation justifying
production of these matters, petitioner's case is not of that type.” Id.,
at 512-513. . . . Forcing an attorney to disclose notes and
memoranda of witnesses' oral statements is particularly disfavored
because it tends to reveal the attorney's mental processes, 329 U.S.,
at 513 (“what he saw fit to write down regarding witnesses'
remarks”); id., at 516-517 (“the statement would be his [the
attorney's] language, permeated with his inferences”) (Jackson, J.,
concurring).21 Rule 26 accords special protection to work product
revealing the attorney's mental processes. The Rule permits
disclosure of documents and tangible things constituting attorney
work product upon a showing of substantial need and inability to
obtain the equivalent without undue hardship. This was the standard
applied by the Magistrate. . . . Rule 26 goes on, however, to state
that “[i]n ordering discovery of such materials when the required
showing has been made, the court shall protect against disclosure of
the mental impressions, conclusions, opinions or legal theories of an
attorney or other representative of a party concerning the litigation.”
Although this language does not specifically refer to memoranda
based on oral statements of witnesses the Hickman court stressed
the danger that compelled disclosure of such memoranda would
reveal the attorney's mental processes. It is clear that this is the sort
of material the draftsmen of the Rule had in mind as deserving
special protection. See Notes of Advisory Committee on 1970
Amendment to Rules, 28, U.S.C. App., p.442 (“The subdivision . . .
goes on to protect against disclosure the mental impressions,
conclusions, opinions, or legal theories . . . of an attorney or other
representative of a party. The Hickman opinion drew special
attention to the need for protecting an attorney against discovery of
memoranda prepared from recollection of oral interviews. The courts
have steadfastly safeguarded against disclosure of lawyers' mental
impressions and legal theories. . . .”).
 Based on the foregoing, some courts have concluded that no
showing of necessity can overcome protection of work product which
is based on oral statements from witnesses. . . . Those courts
declining to adopt an absolute rule have nonetheless recognized that
such material is entitled to special protection. . . .
We do not decide the issue at this time. It is clear that the
Magistrate applied the wrong standard when he concluded that the
Government had made a sufficient showing of necessity to
overcome the protections of the work-product doctrine. The
Magistrate applied the “substantial need” and “without undue
hardship” standard articulated in the first part of Rule 26(b)(3). The
notes and memoranda sought by the Government here, however,
are work product based on oral statements. If they reveal
communications, they are, in this case, protected by the attorney-
client privilege. To

928

the extent they do not reveal communications, they reveal the

attorneys' mental processes in evaluating the communications. As
Rule 26 and Hickman make clear, such work product cannot be
disclosed simply on a showing of substantial need and inability to
obtain the equivalent without undue hardship.
While we are not prepared at this juncture to say that such material
is always protected by the work-product rule, we think a far stronger
showing of necessity and unavailability by other means than was
made by the Government or applied by the Magistrate in this case
would be necessary to compel disclosure. . . . [W]e . . . reverse the
judgment of the Court of Appeals for the Sixth Circuit and remand
the case to it for such further proceedings in connection with the
work-product claim as are consistent with this opinion. . . .
Chief Justice B , concurring in part and concurring in the
judgment.
I join in Parts I and III of the opinion of the Court and in the
judgment. As to Part II, I agree fully with the Court's rejection of the
so-called “control group” test, its reasons for doing so, and its
ultimate holding that the communications at issue are privileged. As
the Court states, however, “if the purpose of the attorney-client
privilege is to be served, the attorney and client must be able to
predict with some degree of certainty whether particular discussions
will be protected.” . . . For this very reason, I believe that we should
articulate a standard that will govern similar cases and afford
guidance to corporations, counsel advising them, and federal courts.
The Court properly relies on a variety of factors in concluding that
the communications now before us are privileged. . . . Because of
the great importance of the issue, in my view the Court should make
clear now that, as a general rule, a communication is privileged at
least when, as here, an employee or former employee speaks at the
direction of the management with an attorney regarding conduct or
proposed conduct within the scope of employment. The attorney
must be one authorized by the management to inquire into the
subject and must be seeking information to assist counsel in
performing any of the following functions: (a) evaluating whether the
employee's conduct has bound or would bind the corporation; (b)
assessing the legal consequences, if any, of that conduct; or (c)
formulating appropriate legal responses to actions that have been or
may be taken by others with regard to that conduct. . . . Other
communications between employees and corporate counsel may
indeed be privileged . . . but the need for certainty does not compel
us now to prescribe all the details of the privilege in this case.
Nevertheless, to say we should not reach all facets of the privilege
does not mean that we should neglect our duty to provide guidance
in a case that squarely presents the question in a traditional
adversary context. Indeed, because Federal Rule of Evidence 501
provides that the law of privileges “shall be governed by the
principles of the common law as they may be interpreted by the
courts of the United States in the light of reason and experience,”
this Court has a special duty to clarify aspects of the law of privileges
properly before us. Simply asserting that this failure “may to some
slight extent undermine desirable certainty” . . . neither minimizes the
consequences of continuing uncertainty and confusion nor
harmonizes the inherent dissonance of acknowledging that
uncertainty while declining to clarify it within the frame of issues
presented.

929

KEY POINTS
1. The attorney-client privilege extends to corporations, but there
is not a simple test to determine whether a communication is
covered by the privilege. If an employee makes a
communication to a lawyer at the direction of a superior for
the purpose of obtaining legal advice for the corporation about
a matter relevant to the scope of the employee's corporate
duties, the communication is likely to be privileged.
2. Privileging the communication to the attorney does not
privilege the underlying facts. The employee may be deposed
and must answer truthfully and fully about the relevant matter,
but may not be asked “What did you say to corporate
counsel?”

NOTES AND QUESTIONS

1. Upjohn involved application of the work-product doctrine in
addition to the attorney-client privilege. The Supreme Court initially
announced the doctrine, now codified in Fed. R. Civ. P. 26(b)(3), in
Hickman v. Taylor, 329 U.S. 495, 511 (1947):
Proper preparation of a client's case demands that [the lawyer] assemble information,
sift what he considers to be the relevant from the irrelevant facts, prepare his legal
theories and plan his strategy without undue and needless interference. . . .
. . . This work is reflected, of course, in interviews, statements, memoranda,
correspondence, briefs, mental impressions, personal beliefs, and the countless other
tangible and intangible ways—aptly though roughly termed by the Circuit Court of
Appeals in this case as the “work product of the lawyer.” Were such materials open to
opposing counsel on mere demand, much of what is now put down in writing would
remain unwritten. An attorney's thought, heretofore inviolate, would not be his own.
 Inefficiency, unfairness and sharp practices would inevitably develop in the giving of
legal advice and in preparation of cases for trial. The effect on the legal profession
would be demoralizing. And the interests of the clients and the cause of justice would
be poorly served.
Although the Court's rhetoric may be a bit extreme, this language
suggests a rationale for the work-product doctrine that is similar to
that often suggested for the attorney-client privilege.
2. Should corporations possess an attorney-client privilege? How
do they differ in relevant respects from individuals? In thinking about
this, is it pertinent that corporations cannot claim the Fifth
Amendment privilege against self-incrimination? Is it sensible to
speak of a corporation's “expectation of privacy”?
3. What are the consequences of permitting assertion of the
privilege in Upjohn? What would have been the consequences of
forbidding it? How costly would discovery have been? How costly do
you think the litigation trying to avoid discovery was? How do these
costs relate to the policies of the privilege?
4. Where does the law stand in the aftermath of Upjohn? The Court
rejected the control group test, but refused to replace it with a new
test, electing instead to

930

determine on a case-by-case basis whether the privilege exists.

How clear is the Court's opinion? Could it have been clearer? Should
it have been? Where does the subject matter test stand in the wake
of Upjohn?
5. When new management take over a corporation, they, not the
previous management, are the holders of the corporation's privilege,
and may decide whether to assert or waive it, even with respect to
statements made by previous management. Commodity Futures
Trading Comm'n v. Weintraub, 470 U.S. 1026 (1985).
6. One issue that often arises is whether a corporation waives its
attorney client privilege when it conducts an internal investigation of
corporate wrongdoing. In In re Woolworth Corp. Securities Class
Action Litig., 1996 U.S. Dist. LEXIS 7773 (S.D.N.Y. June 6, 1996),
the court held that an internal investigative report prepared jointly by
attorneys and accountants was protected by the attorney-client
privilege. Relying on Upjohn, the court stated that where counsel had
been retained by upper management to conduct an internal
investigation, notes and memoranda reflecting communications
between a corporation's employees and counsel were protected by
the attorney-client privilege. The court also stated that strong public
policy considerations militated against a broad finding of waiver with
regard to the investigator's underlying notes and memoranda, when
the investigative report was given to the SEC and released to the
public: “A finding that publication of an internal investigative report
constitutes waiver might well discourage corporations from taking the
responsible step of employing outside counsel to conduct an
investigation when wrongdoing is suspected.” In contrast, in In re
Kidder Peabody Securities Litigation, 168 F.R.D. 459 (S.D.N.Y.
1996), the court held that a securities firm waived the attorney-client
privilege by publicly releasing an internal investigative report and by
attempting to use the favorable report as a “sword” in litigation. The
securities firm had invoked the privilege with respect to notes from
interviews of individuals who were employed by the firm at the time
of the interview. Relying on In re von Bulow, 828 F.2d 94, 100-103
(2d Cir. 1987), the court said that the scope of any waiver by virtue of
disclosure was to be defined by the so-called fairness doctrine,
which turns on the circumstances of the disclosure. The court said
that disclosure in a “judicial” setting does trigger a waiver by
implication for related and otherwise privileged materials. It held that,
under the particular facts of the case, Kidder had waived its privilege
by repeated injection of the substance of the investigative report into
“this and other litigations” and into related litigation contexts. The
offer of the Kidder report to the SEC was said to represent Kidder's
continuing effort to influence the outcome of pending or anticipated
litigations and agency investigations. It is not clear how this case
would be treated under the new FRE 502; however, if the disclosure
was intentional, the “ought in fairness” language of FRE 502(a)
would likely lead the court to similar results. In re Omnicom Group
Securities Litigation, 233 F.R.D. 400, 406-409 (S.D.N.Y. 2006), has a
lengthy discussion of relatively current views on the matter.
 7. Some critics express concern that privilege challenges and
crime-fraud proceedings are undermining the ability of corporate
defendants to protect legitimate claims of privilege, especially in
highly regulated industries where product liability

931

litigation has been significant. In one example, the State of

Minnesota and Blue Cross and Blue Shield of Minnesota brought suit
against 11 tobacco manufacturers for reimbursement of Medicaid
costs related to the treatment of smoking-related illnesses in State
by Humphrey v. Philip Morris, Inc., 1998 Minn. App. LEXIS 431
(Minn. Ct. App. Mar. 17, 1998), stay denied, 523 U.S. 1056 (1998).
The plaintiffs used broad allegations of fraud and conspiracy in its
production requests, which ultimately resulted in the production of
more than 33 million pages and privilege logs identifying more than
200,000 privileged documents. The Minnesota district court found
that an in camera review of the privileged documents was required
after the plaintiff's prima facie showing of crime-fraud.
To facilitate the massive task of reviewing the documents, the court
instituted a system of random review or spot checking. The
defendants were ordered to separate the privileged documents into
16 categories. To determine where there was privilege, the special
master reviewed documents from each category. He eventually
reviewed approximately 800 of the 200,000 documents and made
his recommendation based on this “illustrative” sample. The court
held that four categories of documents were not privileged, releasing
approximately 39,000 documents to the plaintiffs. Privilege
challenges, it has been argued, are becoming a more common trial
strategy for plaintiffs who are unburdened by massive production
requests that drain the resources of corporate defendants. For an in-
depth discussion of the problem, see John J. Mulderig, Leslie
Wharton & Cynthia S. Cecil, Tobacco Cases May Be Only the Tip of
the Iceberg for Assaults on Privilege, 67 Def. Counsel J. 16 (2000);
David J. Fried, Too High a Price for Truth: The Exception to the
Attorney-Client Privilege for Contemplated Crimes and Frauds, 64
N.C. L. Rev. 443 (1986). The privilege as it relates to crime-fraud
proceedings is discussed more fully in the section “Exceptions to the
Privilege,” beginning on page 934, infra. It is mentioned here to
sensitize you to one of the problems with the attorney-client privilege
that occurs within the corporate context.

PROBLEMS
12.8. Defendant Admiral Insurance Co. has filed a petition for writ
of mandamus directing the district court to vacate its order
compelling production of communications secured by
Admiral's counsel in anticipation of a securities fraud suit. In
June 1987, counsel for Admiral had interviewed the two
Admiral executives who were most informed about Admiral's
allegedly fraudulent transactions in Arizona properties. The
two executives resigned soon after the interviews. When
plaintiffs, individuals injured by the transactions, scheduled the
former executives for deposition, counsel for the two
executives responded that they would invoke the Fifth
Amendment. Plaintiffs seek production of the statements on
the basis that the information is unavailable from any other
source. Admiral argues that these statements are protected
from disclosure by the attorney-corporate client privilege. How
should the court rule?

932

12.9. Plaintiffs have moved to compel the production of a diary

written by Jeanette Curry while she was an employee of
defendant Dayco Corporation. Jeanette compiled the diary at
the direction of outside counsel to her employer. The diary
chronicled events that form the basis for part of the present
securities litigation. Plaintiffs contend that any privilege that
might protect the contents of the diary has been waived since
a newspaper reporter obtained a copy of the diary from an
unidentified source. The defendants (Dayco and Jeanette)
 argue that the contents are protected by the attorney-
corporate client privilege and work-product doctrine. They
argue that since Jeanette did not authorize disclosure, there
has been no waiver. What result?
12.10. Employees of several Chemical Bank branches under the
supervision of Demauro were investigated for violation of the
Bank Secrecy Act, which makes “laundering” money
(exchanging large denomination bills for small ones) illegal.
Demauro gave false testimony to a grand jury about his
knowledge of the violations and has been charged with
perjury. To establish that he knowingly made false statements
to the grand jury, the prosecution seeks to introduce the
testimony of Chemical Bank's attorney, Martin. When
Chemical Bank became aware of the criminal investigation, it
asked Martin to conduct an internal investigation into
employee wrongdoing. In the course of the investigation,
Martin interviewed Demauro in his capacity as Vice President
in charge of 23 branches. Demauro insists that his
communications with Martin are protected by attorney-client
privilege. Should the judge allow Martin's testimony?
12.11. Chicago Police Officer Rehling was injured and had part of
one leg amputated after an automobile ran him down several
years ago. Rehling finished a long period of medical leave and
then requested reassignment on a limited duty basis to District
16, his former assignment. He worked for a few months
processing citations at District 16 before he was transferred to
the Alternative Response Unit, where officers handle incoming
requests for the dispatch of squad cars. Rehling was unhappy
with the transfer and sued the city under the American's with
Disabilities Act, claiming discrimination against him due to his
disability and failure to provide him with a reasonable
accommodation. The City made a motion in limine to bar the
testimony of Zoufal, General Counsel to the Superintendent of
Police, based on their attorney-client privilege. Zoufal had
allegedly stated that the Chicago Police Department could not
have a “cripple” in a position where he would interact with the
 public because of the likelihood of the negative reaction it
would draw. Rehling has argued that Zoufal, in his “business
capacity as a decisionmaker,” decided to have him transferred
out of District 16. The city has countered by asserting that
Zoufal was giving legal advice when he encouraged ranking
members of the Police Department to order the transfer. Is
Zoufal's testimony privileged?

3. The Government Client

The attorney-client privilege extends to entity clients other than
corporations. Federal courts generally agree that the government, as
client, should be afforded the protection

933

of the attorney-client privilege. Some of the same difficulties that

arise in regards to corporate clients are also present when the client
is the government: Who exactly is the client? Who may invoke and
waive the privilege? What is required to maintain a privilege's
requirement of confidentiality? And, what constitutes a waiver? Since
there has been no equivalent to Upjohn to define the parameters of
the governmental attorney-client privilege, courts have tended to
follow the law of corporate privilege. See, e.g., Galarza v. United
States, 179 F.R.D. 291 (S.D. Cal. 1998).
In In re Grand Jury Subpeona Duces Tecum, 112 F.3d 910 (8th Cir.
1997), cert. denied sub nom. Office of the President v. Office of the
Independent Counsel, 521 U.S. 1105 (1997), the court held that the
White House may not use a governmental attorney-client privilege to
withhold potentially relevant information from a federal grand jury.
The strong public interest in honest government and in exposing
wrongdoing by public officials, it said, would be ill-served by the use
of a governmental attorney-client privilege in criminal proceedings.
In so deciding, the court highlighted two important distinctions
between corporate and governmental clients. The White House,
unlike private corporations, is not subject to any criminal liability and
all government agents have a public duty to report wrongdoing.
There seems to be an intuitive problem, the court said, with allowing
the government to conceal evidence from a court, especially in
criminal cases.
Only a year later, the Independent Counsel moved to compel the
grand jury testimony of Deputy White House Counsel Bruce Lindsey
after he declined to answer certain questions based on the
governmental attorney-client privilege in In re Lindsey (Grand Jury
Testimony), 158 F.3d 1263 (D.C. Cir. 1998). Like the Eighth Circuit,
the court abrogated the governmental attorney-client privilege in
criminal grand jury proceedings. Both cases clearly rejected the
privilege in criminal proceedings only, leaving the governmental
attorney-client privilege intact in civil cases. The Seventh Circuit also
has rejected the privilege. In re Witness Before the Special Grand
Jury 2000-2, 288 F.3d 289 (7th Cir. 2002) (holding that no attorney-
client privilege existed between a state officer and government
lawyer in context of federal criminal investigation).
However, the Second Circuit declined to follow Lindsey, in In re
Grand Jury Investigation, 399 F.3d 527 (2d Cir. 2005), holding that
the privilege exists and is enforceable in criminal proceedings as
well. The court held that the Connecticut governor's office could
invoke the attorney-client privilege against federal grand jury
inquiries into conversations with former legal counsel, which were
sought in connection with a federal bribery investigation. Id. at 536.
The court reasoned that “[u]pholding the privilege furthers a culture
in which consultation with government lawyers is accepted as a
normal, desirable, and even indispensable part of conducting public
business.” Id. at 534. Although federal law applied in the case, the
court gave weight to the fact that Connecticut had enacted a statute
granting the privilege, noting that “the people of Connecticut, acting
through their representatives, concluded that the public interest is
advanced by upholding a governmental privilege even in the face of
a criminal investigation.” Id.
The Second Circuit took a similarly expansive view of the scope of
privilege in civil cases. In In re County of Erie, 473 F.3d 413 (2d Cir.
2007), the court addressed whether the attorney-client privilege
protects e-mails passed between a government

934

lawyer and a public official, when the e-mails assessed “the legality
of a policy and propose[d] alternative policies in that light.” While the
trial judge had denied protection of the e-mails because they went
“beyond rendering legal advice,” the court of appeals relied on In re
Grand Jury Investigation, 399 F.3d 527 (2d Cir. 2005), and applied
the attorney-client privilege. Specifically, the court emphasized that
legal considerations should play a role in government policymaking
and when a lawyer is assessing compliance with legal requirements
“the lawyer's recommendation of a policy that complies (or better
complies) with the legal obligation . . . is legal advice.” Id. at 422.

4. Exceptions to the Privilege

There are four main exceptions to the attorney-client privilege:
a. Breach of Duty by a Lawyer or Client
The first exception applies to controversy between attorney and
client. As we already mentioned, if a client sues for damages for the
attorney's negligence or the attorney sues for fees due, the client
may not invoke the privilege to bar admission of relevant evidence.
Though the attorney-client communications remain protected against
disclosure to outsiders, as between attorney and client the privilege
is inapplicable. McCormick argues that the exception is premised on
the “practical necessity that if effective legal service is to be
encouraged the privilege must not stand in the way of the lawyer's
just enforcement of his rights to be paid a fee and to protect his
reputation.” Kenneth S. Broun et al., McCormick on Evidence §91, at
143 (5th ed. 1999). Is that persuasive to you? Why is “encouraging
effective legal service” important enough to pierce the veil of
confidentiality, but determining, say, who committed a murder is not?
b. Document Attested by a Lawyer
 A second exception concerns the attorney who acts as attesting
witness on a document executed by the client. The exception is most
commonly applied in will contests between the heirs or personal
representatives of the deceased client. Although the privilege
generally survives the death of a client, if an attorney acts as
attesting witness to his client's will, the attorney is permitted to testify
regarding the validity or interpretation of the will.
c. Identity of Client, Fee Information, and Related Matters
The third exception, which is the subject of increasing controversy
in the courts, denies the privilege for certain fundamental information
about the attorney-client relationship, such as the identity of the
client, the client's address and occupation, and the attorney's fee
arrangement. The exception is supported by some courts on the

935

ground that such information does not involve a confidential

communication. See In the Matter of Witnesses Before the Special
March 1980 Grand Jury Appeal of United States, 729 F.2d 489 (7th
Cir. 1984). Other courts have argued that such matters are not
privileged because they are “preliminary, by their nature, establishing
only the existence of the relation between client and counsel.” In re
Grand Jury Subpoenas (United States v. Hirsch), 803 F.2d 493, 496
(9th Cir. 1986).
Notwithstanding such arguments, courts have created three
exceptions to the traditional rule that attorney's fees and client
identity are not privileged. The first exception, known as the “legal
advice” exception, holds that such information is protected by the
privilege where there is a strong likelihood that disclosure would
implicate the client in the very matter for which legal advice was
sought. See In re Grand Jury Proceedings (Twist), 689 F.2d 1351,
1352 (11th Cir. 1982). The second exception, known as the
“communication rationale” exception, holds that identity and fee
information are privileged if disclosure would connect the client with
a previously disclosed and independently privileged communication.
See In re Shargel, 742 F.2d 61, 64 (2d Cir. 1984). The third
exception privileges identity and fee information if it provides the “last
link” in a chain of incriminating evidence that could result in criminal
prosecution of the client. See In re Grand Jury Proceedings
(Pavlick), 680 F.2d 1026, 1027 (5th Cir. 1982) (en banc), rev'g 663
F.2d 1057 (5th Cir. 1981); Baird v. Koerner, 279 F.2d 623, 633 (9th
Cir. 1960) (attorney made payment to IRS of back taxes for client but
refused to reveal name of client). These exceptions have not been
uniformly approved by the courts. In fact, after a small burst of
enthusiasm for them following the seminal decision in Baird v.
Koerner, the courts have become disenchanted. For example, the
Ninth Circuit, which decided Baird, now takes the position that only
the “communications rationale” exception remains good law. Tornay
v. United States, 840 F.2d 1424 (9th Cir. 1988). Much more typical of
the current judicial attitude toward these matters is In re Grand Jury
Investigation 83-2-35 (Durant), 723 F.2d 447 (6th Cir. 1983). In
Durant, checks had been stolen from IBM and deposited in various
bank accounts. Durant, an attorney, had been paid for legal services
out of one of these accounts. Thus, identifying the client who had
paid him would probably identify a person involved with the thefts.
Durant was required to disclose that information. For an argument
that exceptions to the privilege should focus exclusively on the
client's intent, see Developments in the Law—Privileged
Communications, 98 Harv. L. Rev. 1501 (1985).
d. Communication in Furtherance of a Crime or Fraud
Though communications regarding a past crime or fraud are
privileged, communications in furtherance of an ongoing or future
illegality are not. The rationale behind the exception is that where a
client seeks advice to aid a future or ongoing crime or fraud, the
client does not retain an attorney in his professional capacity. In
order to defeat the privilege, the party seeking disclosure bears the
burden of bringing the communication within the crime-fraud
exception.
In applying the crime-fraud exception, many courts follow the
intent-based test announced in Clark v. United States, 289 U.S. 1
(1933). Under this test, the party

936

invoking the exception must make a prima facie showing that the
attorney-client communications were made for the purpose of
furthering the commission of a future or present crime or fraud. The
test focuses strictly on the client's intent. Thus, even if the attorney
acted in good faith and was unaware of the wrongdoing, the privilege
may be lost. For an example, see In re Grand Jury Proceedings No.
96-55344, 87 F.3d 377 (9th Cir. 1996). The Second Circuit has
referred to the burden in terms of a probable cause showing to
believe that the client consulted the attorney for the purpose of
furthering wrongful conduct. See In re Grand Jury Subpoena Duces
Tecum Dated Sept. 15, 1983, 731 F.2d 1032, 1039 (2d Cir. 1984).
Other courts have defined the evidentiary standard differently. For
example, in In re Grand Jury Investigation, 842 F.2d 1223 (11th Cir.
1987), the court used a two-part test to decide whether the crime-
fraud exception applied to an attorney-client communication, not only
requiring the prima facie showing of crime-fraud purpose, but also
“showing that the attorney's assistance was obtained in furtherance
of the criminal or fraudulent activity or was closely related to it.” Id. at
1226. The correct answer should be that the finding is governed by
FRE 104(a), and thus that its necessary conditions must be found by
a preponderance of the evidence.
Note that the crime-fraud exception only applies to attorney-client
communications that promote a crime or a fraud, as opposed to
other misconduct. See, e.g., In re Spalding Sports Worldwide, Inc.,
203 F.3d 800, 806–807 (Fed. Cir. 2000) (inequitable conduct not
amounting to crime or fraud does not vitiate the attorney-client
privilege). For example, discussions of a possible breach of contract
by the client will remain privileged because breach of contract is
neither a crime nor a fraud, and is not even considered misconduct
from an economic standpoint. See, e.g., Barry E. Adler, Efficient
Breach Theory Through the Looking Glass, 83 N.Y.U. L. Rev. 1679,
1688-1689 (2008).
 Remember that privileges do apply in preliminary factfinding, FRE
104(a). Under what circumstances, then, may allegedly privileged
material be consulted to determine if it is privileged? This was the
question facing the Court in United States v. Zolin, 491 U.S. 554
(1989). The Court held that before engaging in in camera review of
the allegedly privileged material to decide the privilege question, the
trial court “should require a factual basis adequate to support a good
faith belief by a reasonable person” that in camera review would
establish that the crime-fraud exception applies and that the
communication would be admitted. Id. at 572. The court concluded
that the evidentiary threshold could be satisfied by any relevant
evidence, whether or not it was independent of the allegedly
privileged communication. Id. at 574.
The crime-fraud exception applies both to the attorney-client
privilege and to the attorney's ethical duty of confidentiality. See
Rules 1.2(d) and 1.6(b) in the ABA's Model Rules of Professional
Conduct (2005) for provisions dealing with a client's illegal conduct.
Is an attorney ethically obligated to report future crimes on the part of
a client? What about past crimes? Compare ABA Model Rules of
Professional Conduct, Rule 1.6(b), with ABA Model Code of
Professional Responsibility, DR 4-101(C).
The crime-fraud exception has also been applied to the work-
product privilege. In In re Murphy, 560 F.2d 326, 328 (8th Cir. 1977),
the court applied a two-part test to determine which work-product
documents would be admitted into evidence. Under

937

the test, the party must (1) make a prima facie showing of crime or
fraud; and (2) show a relationship between the illegal conduct and
the attorney's work product. This test has been criticized on the
ground that it disregards the client's intent. See, e.g., In re
International Sys. & Controls Corp Sec. Litig., 693 F.2d 1235, 1243
(5th Cir. 1982).

PROBLEMS
12.12. A federal grand jury indicted Edwin Lewis and three others
with conspiring to violate federal immigration laws. The
indictment alleged that Lewis had falsely held himself out to
be an attorney, and had filed fraudulent amnesty applications
with the Immigration and Naturalization Service (INS) on
behalf of over 100 clients. A search warrant allowed the
government to seize client files from Lewis's office. The files
contained four types of documents: (1) completed INS forms;
(2) forms prepared in house by the law firm (forms designed to
elicit information for the applications); (3) materials designed
to corroborate the information contained in the INS forms; and
(4) notes apparently prepared by agents of the law firm. Some
of the other items seized from the offices included blank
boarding passes; blank stationery from airlines and blank
stationery from various Consulates General, presumably used
to create false evidence of foreign travel; and blank pay
receipts from various businesses, presumably used to create
false evidence of employment.
Some of Lewis's clients had filed for amnesty with the INS,
while others had sought his legal advice regarding amnesty
but had not filed applications at the time Lewis was arrested.
The only way the government can find out the identity of these
latter clients is by looking at Lewis's files. What arguments can
the government make that they are entitled to all of the
evidence seized from Lewis's office? Are there any special
problems they might run into regarding the anonymous
clients?
12.13. The government obtained a warrant and seized files and
materials from a law firm that is the subject of a criminal
proceeding. The files are currently sealed by court order,
pending a decision as to whether the files should be protected
by the attorney-client privilege. The government concedes that
the firm has the right to invoke the privilege on behalf of its
clients but contends that the crime-fraud exception removes
these materials from the scope of the privilege. Should the
crime-fraud exception apply where the alleged criminality
 being investigated is solely that of the law firm? If so, the
government will be given access to the confidential files of
innocent clients. If not, the law firm will be able to hinder an
investigation of its own alleged criminal conduct by asserting a
privilege designed to protect clients. Should the court allow
the files to be unsealed?
12.14. Ralls was paid by a client/fee-payer to defend Bonnette
against criminal charges connected to Bonnette's attempt to
transport 300 pounds of cocaine from Arizona to California.
The government sought to discover the name of the person
who hired Ralls and the amount and method of payment. Ralls
moved

938

to quash the government's grand jury subpoena on the basis of

attorney-client privilege. The district court ordered Ralls to
testify as to the client's identity and the fee arrangements but
held that the conversations between Ralls and the client were
privileged. Should an appellate court affirm this decision?
12.15. Elsa and Arlen were in the midst of a messy divorce. During
a custody fight over their two sons, Lars and Herbie, Elsa met
with her attorney, Friedman. Elsa was convinced that Arlen
had been sexually abusing the children. Friedman invited
Elsa's friend, Margie, to be present in order to have a “cool
head” in the room. While in front of Friedman, Elsa and Margie
began discussing ways of killing Arlen or hurting the children
and framing Arlen for it. Friedman, afraid that Elsa and Margie
might be serious, informed a judge. The judge announced the
substance of Friedman's disclosure at the custody hearing,
and Arlen was granted custody, while Friedman's appearance
as Elsa's counsel was stricken. Margie later broke into Arlen's
house carrying a gun, found him asleep in his bed, and fired
two shots, hitting him once in the leg. Margie was arrested
and pled guilty to a series of assault related crimes. Elsa is
now on trial for conspiracy to commit murder and conspiracy
 to commit assault. The prosecution has called Friedman to
testify to the conspiracy related communications that he
witnessed between Elsa and Margie in his office, but Elsa has
asserted the attorney-client privilege to bar his testimony.
What result?

5. Reflection on the Attorney-Client Privilege

The attorney-client privilege is the oldest of the confidential
communication privileges. Still, debate has continued over why the
privilege should exist. Such debate has often focused on the costs
that the privilege entails. One argument, employing a micro-
economic perspective, has been made that the attorney-client
privilege has benefits that justify its costs. The following excerpt
discusses these and other related matters:

RONALD J. ALLEN, MARK F. GRADY, DANIEL D.

POLSBY, AND MICHAEL S. YASHKO, A POSITIVE
THEORY OF THE ATTORNEY-CLIENT PRIVILEGE AND
THE WORKPRODUCT DOCTRINE

19 J. Legal Stud. 359 (1990)

I. INTRODUCTION
Protecting the confidentiality of legal information is an odd goal in a
judicial system that values openness as highly as ours does. In
some litigation settings we make a fetish out of free access to all
information. Modern discovery rules can require parties to exchange
boxcars of records with one another, and attorneys are under an
obligation to disclose cases that run against the arguments that they
make. The argument for

939

openness is in principle strong. When there are no surprises at trial,

the parties more likely will join issue on the real questions of fact and
law—those that properly should determine case outcomes.
Why, then, do the confidentiality doctrines remain? The
conventional response quickly runs up against an insoluble dilemma.
It accepts the aspirations of modern discovery systems, including the
one forbidding counsel from participating in perjurious efforts; it
posits costless rules of confidentiality that have no effect on the
opponent's ability to obtain information; and then it asserts that these
supposedly costless rules nonetheless create incentives for clients to
disclose information to counsel.22 How can this be? If confidentiality
rules do not increase the cost of obtaining information once it is in
the lawyer's possession, and if the lawyer must rigorously police the
client's responses to the opponent to ensure no prevarication or
sleight of hand, then the client will have no incentive to disclose
unfavorable information to the lawyer.
Because of the tension between the conventional view of the
confidentiality rules and their purported consequences, some
scholars have recognized that the justifications for the rules are
insubstantial,23 but they have not examined the assumption that
confidentiality rules are costless.24 This failure may be a testament
to the strength of the commitment to openness in the legal process.
To admit that the rules of confidentiality are costly requires one to
recognize that they do indeed constrain openness. If confidentiality
rules impose costs, and we assert that they do, the effect is to
increase the cost to the opponent of securing the relevant
information, whatever it may be. Because of the confidentiality rules,
for example, rather than simply asking the attorney to turn over the
entire case file, the opponent must secure that information in other
ways, such as deposing the client. That in itself may increase costs,
and in addition the client will have the aid of counsel before and at
the deposition, which may make the opponent's task of extracting
the information more difficult and thus more costly still. After all,
merely having to ask two questions instead of one to get the
requested information increases costs. Under our theory, however,
the costs of confidentiality are not regrettable; rather, they are the
conditions that create incentives to disclose to the lawyer: the more
costly an opponent's efforts to obtain information disclosed to the
lawyer, the less likely the opponent will secure that information, and
the greater the corresponding incentive to disclose it to the lawyer.
Once the information is in the lawyer's possession, the lawyer may
guide the litigation in directions unanticipated by the client, and here
lie the benefits of the confidentiality rules that justify their costs.

940

We develop these points here and propose a positive theory that

explains the confidentiality rules. Two doctrines authorize or
mandate lawyers to preserve the confidentiality of their clients' legal
affairs. The attorney-client privilege exempts from discovery and
production at trial confidential communications from client to lawyer,
and confidential communications from lawyer to client that may
expose a client's confidential communication, if made for the
purpose of securing legal advice.25 The work product doctrine
exempts from production material generated by the attorney in
anticipation of litigation.26 These doctrines affect decisionmaking on
two margins. The expectation of confidentiality can affect a client's
decision concerning how much unfavorable information to divulge to
a lawyer and, at a limit, whether to go to a lawyer at all. Without legal
protection, a client might otherwise anticipate that divulging
information to a lawyer would reduce an opponent's cost of acquiring
it. Thus, contrary to the conventional theory of the privilege, one of
effects of the privilege must be to raise—or at least not lower—the
cost of obtaining useful information once it is in the hands of the
attorney. Confidentiality can also affect the amount of information
produced by the lawyer. When lawyers cannot produce favorable
information without also producing unfavorable information, lack of
confidentiality would reduce the amount of favorable information that
lawyers would produce.27 In brief, our argument is that the attorney-
client privilege and the work product doctrine offer two perspectives
on a larger goal, which is to increase the amount of information
available to courts about disputes and to work against the
disincentives to the production of that information which would
otherwise exist. In our legal system, lawyers are both conduits of
information from their clients to the courts and independent
producers of information for the same audience. The attorney-client
privilege takes the client's perspective and establishes the level of
confidentiality needed to get the client to consult a lawyer and to
divulge the optimum amount of information to him. The work product
doctrine then takes the attorney's perspective and provides the level
of confidentiality needed to induce the attorney to perform the
optimal amount of legal investigation. . . .

941

II. THE ATTORNEY-CLIENT PRIVILEGE AND THE CONTINGENT

CLAIM THEORY . . .
A. T A A -C T

1. The Contingent Claim Theory

In contrast to some contemporary theories of the privilege, ours
assumes that it must impose some costs upon the adversary. If a
person believes that disclosure of an unfavorable fact to an attorney
could reduce the other side's costs to discover it, this belief may
deter the party from divulging the fact to his lawyer. And without a
privilege, a party may very well believe that disclosure to an attorney
would reduce his opponent's cost of discovery. The attorney is a
repeat player in the legal system, and so is likely to co-operate with
other repeat players. Moreover, the attorney is ethically bound to
respect the system's rules. Accordingly, a client reasonably could
believe that in the absence of a privilege an attorney would truthfully
answer the question: “What has your client told you?” A client left
entirely to his own, by contrast, may feel that he has more room to
maneuver. Thus, one might expect a client to conclude that, absent a
privilege, divulging information to a lawyer will reduce his opponent's
costs of discovering information.
The existence of a privilege changes things. The privilege at a
minimum does not decrease the adversary's costs in obtaining
information, and in fact it may increase them. There is no decrease
because the adversary must still obtain information from the client,
just as he would have been required to do had the client never
consulted an attorney. Costs may increase because the lawyer may
give the client guidance in how to respond honestly but craftily to an
interrogatory, thus making the adversary's task of obtaining complete
information more difficult. In any event, if the privilege does not
increase the other side's discovery costs, there is no conceivable
reason for it, a point that Kaplow and Shavell have made before
us.28 Moreover, there is evidence suggesting that the privilege does
increase discovery costs. The most telling datum may be the
continuing existence of attorney-client privilege cases. If opponents
could acquire information just as cheaply by alternative means, there
would be little reason for them to litigate whether that same
information is protected by the privilege. In addition, studies indicate
that lawyers often assert after trial that the other side did not acquire
all the relevant unfavorable facts. Some of these unfavorable facts
must be privileged under the current rules, which is one reason they
never see the light.
Moreover, notwithstanding the ostensible dedication of the legal
system to open discovery, the attorney is not in fact expected to act
as a policeman regulating in detail the forthrightness of the client's
responses to an opponent. Perjury is a limit, but there is a large gap
between absolute candor and perjury. As the activity of the client
moves towards the perjurious pole, the chances increase that a court
will hold there to be no privilege, but there nonetheless remains a
large area within which clients and

942

attorneys may maneuver while blanketed with the protections of

the privilege.29 It is here that the actual incentives created by the
privilege become clear, and they entail the possibility that the
privilege will detract from, rather than just be neutral with respect to,
the objective of openness in the system.
 Given that the privilege must entail costs—and the enormous
volume of litigation over the privilege could hardly be explained
unless it were pretty clear that the privilege did impede full discovery
—it is necessary to understand the benefits it provides. Existing
theories of the privilege do not answer this question. In fact, two
benefits result. First, the privilege facilitates the examination of
contingent claims and in so doing furthers the values served by
those claims. Second, it reduces perjury in the system as a whole.
We discuss these points in turn.
Many legal claims depend on facts that may appear to the lay
person as unfavorable to the party asserting the legal claim. For
example, a party's defense of contributory negligence often entails
the concession of his own negligence. Similarly, for a party to claim
that he was incompetent to enter a contract often involves conceding
that an agreement was reached.
This contingent structure of the law may be the most visible
remnant of the old system of special pleading.30 Under common law
pleading requirements, the parties pleaded against each other until
they joined issue on a question of law or fact. Each time one party
pleaded, the other would have an opportunity either to demur, or to
deny the truth of his opponent's allegations, or to introduce new
matter and thus to confess and avoid it.31 In the earliest days of the
common law, unlike our modern era, the two were strict alternatives.
The common law's nurturance of special pleas made contingent
claims common. Parties could and frequently did confess and avoid
the pleas of their opponents. Thus, if a party pleaded the making of a
contract, his opponent could specially plead that he was incompetent
to contract because of age or some other reason. If a party pleaded
that the defendant struck him, his opponent could specially plead
that he was acting in self defense. A special plea (confession and
avoidance) by the defendant would open the door to further special
pleading by the plaintiff, for instance, that the defendant used more
force than was necessary to defend himself. Ultimately special
pleading made lawsuits depend on narrow issues of fact or law, a
result that seems alien to our civil procedure. Nonetheless, the
hierarchical imprint and doctrinal structure both remain.

943

Our theory proceeds on the assumption that a modern litigant, like

his common law ancestors, still has two main strategies for defeating
an adverse claim. He can deny the claim in its own terms or defeat it
with an affirmative defense, or some similar contingent claim. In the
driver-pedestrian example, the driver can deny he was negligent or
prove that the pedestrian was contributorily negligent. However, and
this is the heart of the matter, a potential client ignorant of the law
has one option and not two. He must deny the claim against him in
its own terms. Of course if potential clients were always honest, they
would never deceitfully deny claims. We assume that individuals will
sometimes be dishonest in pursuit of their self-interest. However—
and this is the second crucial component of our argument—a legal
regime that reduces the costs of information about contingent claims
should facilitate their examination and consequently reduce the
amount of perjury. Reducing the cost of litigating contingent claims
gives potential clients an incentive to substitute away from dishonest
denials. Even a client inclined to commit perjury about whether he
was in the intersection against the light will have less reason to do so
if he can easily learn from his lawyer that the plaintiff's claim can be
defeated honestly—by proving that the plaintiff was contributorily
negligent in jumping out into the intersection so soon after the light
changed, and without looking for opposing traffic.
In sum, by increasing the adversary's costs of obtaining information
about communications between lawyers and clients, the privilege
facilitates inquiry into legal claims beyond the ken of lay persons. By
doing so, the values that underlie contingent claims are furthered,
and contingent claims, no less than others, produce real benefits.
For instance, if contributory negligence were less often interposed as
a defense, it would reduce the incentives of potential victims to use
the proper amount of precaution.32 This praiseworthy result is also
accompanied by a decrease in fraud in the system, which occurs
each time an individual who otherwise would have committed fraud
in litigation is channeled to litigate a truthful contingent claim. Under
our theory, then, the ultimate justification for the privilege lies in the
improvements in behavior that result from the increased availability
of contingent claims.
The foregoing discussion has emphasized how “No, I didn't” and
“Yes, but” can be substituting strategies for defendants. What about
plaintiffs' claims, though? A plaintiff's original claim may appear to be
uncontingent, depending only on facts favorable to it, but even
plaintiffs' claims can become contingent when defendants oppose
them. For instance, a plaintiff's claim that he lent the defendant
money, which the defendant never repaid, begins life in an entirely
uncontingent form, as every prima facie showing does. Nonetheless,
if the defendant maintains that he was underage at the time he
borrowed, the plaintiff's claim changes character, because it can then
depend on whether he made the loan so that the defendant could
purchase “necessities.” Similarly a plaintiff who originally pleads that
the defendant was negligent may find that his ultimate claim
depends on whether he or the defendant had the last clear chance.

944

Contingent claims are not strictly affirmative defenses. Suppose

that someone has promised that he will put X's first born daughter
through college. Making his communication with his lawyer
confidential would increase the odds that he would truthfully claim
that there was no consideration and reduce the odds that he would
falsely claim that he never said it. So long as there is any set of facts
more favorable to the party than those which a typical lay person
would think necessary to secure a claim or defense, the contingent
claim theory would predict a privilege. To give a different example, a
plaintiff in a contracts case may think that all contracts have to be in
writing to be enforceable, and thus is willing to assert falsely that a
writing has been destroyed in order to win a case in which there was
an oral promise in front of a witness. Encouraging the plaintiff to be
truthful with the lawyer will lead the lawyer to direct the litigation
toward the enforceable oral contract. Similarly, if a plaintiff is
unaware of the nature of executory contracts, he may falsely assert
reliance; but if he fully discloses to counsel, the litigation can be
channeled in the proper direction.
Because both plaintiffs' and defendants' claims are or can become
contingent in the litigation process, we would expect that the
privilege would apply to both types. If by contrast defendants simply
denied claims made against them in precisely the same form
originally used by plaintiffs, or if plaintiffs' claims were not or could
not become contingent, we would not predict a privilege, even
though we would predict that clients would still hire lawyers. . . .
The legal system might, but does not, make confidentiality depend
on whether the client's communication actually bore on a denial or a
contingent claim. It would be difficult, even after litigation, to sort
communications so strictly; so much more while litigation is still in
progress. Moreover, a strict privilege would neglect the fact that the
critical incentives must exist at a time when the reluctant client is still
ill-informed about the law. Thus, if a hypothetical client would assess
some nontrivial probability that a communication would be helpful in
devising a contingent claim, we would expect that the
communication would be privileged (unless the opponent's costs of
self-production by other means are very high). If the privilege were
narrower, some contingent claims would be lost. Our theory thus
predicts a broad privilege, but not an unlimited one. When the lawyer
could not possibly use information to develop a contingent claim, and
even a relatively ignorant client would know it, our theory predicts
that the client's communication would not be privileged. Many cases
bear out this hypothesis.
Our theory also predicts that the privilege does not reduce the cost
of making a dishonest contingent claim.33 We will return to this point
when we examine the cases, because it is critical to our theory.
Nonetheless, even if the privilege did to some extent reduce the cost
of dishonest contingent claims, there would still be the question of
which effect dominates: whether the privilege prevents more
dishonest denials or induces more dishonest contingent claims.
 In sum, the real question raised by the attorney-client privilege is
virtually the opposite of the one posed by the many scholars who
have criticized it. The question

945

is not whether the privilege increases perjury, but whether the

increased costs created by the privilege can be justified by the
reduced perjury that the privilege brings about and the greater
number of contingent claims that it allows to be litigated, with their
beneficial real-world effects.
This perspective also provides a powerful ordering principle for the
privilege. As a result of failing properly to perceive the incentive
structure that underlies the privilege, traditional theorists such as
Wigmore have promulgated a general “absolute” rule followed by a
welter of apparently ad hoc case law exceptions. Under our theory,
the appropriate question would always remain the same: Would
providing a privilege advance the exploration of contingent claims at
trial? Cases finding no privilege can best be understood as
expressing conclusions to the contrary.34
Numerous critics have charged that the attorney-client privilege
encourages perjury and reduces the deterrent power of the law. We
think these theories are wrong, and examine the best known ones
here.
2. The Morgan Theory
Edmund Morgan's argument against the privilege was that its only
practical consequence is to protect perjurers. Morgan thought that
the complexity of modern law cases oblige lay persons to seek legal
counsel.35 Such persons could choose either to reveal all their facts
to their lawyer or to suppress some. Called as a witness at the
subsequent trial, the client would be positioned thus:
If he told his lawyer the truth, he must now tell the same thing from the witness box. If
he told his lawyer a lie and sticks to it, he will tell the same story at the trial or hearing.
If he told his lawyer the truth and now tells a lie, why should he be protected from
 exposure? Is the privilege retained in order to protect perjurers? How can that either
directly or indirectly further the administration of justice?36
Morgan's primary error was to use the average case to discredit the
marginal one. When the marginal case is considered, it becomes
evident that instead of increasing perjury, the attorney-client privilege
reduces it. Typically, a client will be motivated to commit perjury
when someone has made a claim against him. Even if Morgan was
correct that people with legal problems will usually consult lawyers, it
does not follow that therefore a client will necessarily disclose to his
lawyer all unfavorable facts about himself. On the margin, he will be
less likely to do so as the costs associated

946

with disclosure increase. The defendant who is unaware of the

defense of contributory negligence is that much less likely to admit
his own negligence.
Morgan thought, mistakenly, that the law can reduce perjury only
by using sticks; he did not think of carrots. But it makes perfect
sense to conceive of confidentiality as a carrot to induce people to
refrain from lying; when the attorney-client privilege reduces the cost
of contingent claims, it should also reduce the amount of perjury.
3. The Bentham-Kaplow-Shavell Theory
Jeremy Bentham's argument against the attorney-client privilege
has been taken up and extended by Professors Louis Kaplow and
Steven Shavell. According to Bentham, the attorney-client privilege
reduces the deterrent effect of the law by giving lawbreakers the
hope that the unfavorable information that they reveal to their
attorneys would never be presented against them in a court of law.
With his characteristic flair, he wrote,
“A counselor, solicitor, or attorney, cannot conduct the cause of his client,” (it has been
observed) “if he is not fully instructed in the circumstances attending it; but the client” (it
is added) “could not give the instructions with safety, if the facts confided to his
advocate were to be disclosed.” Not with safety? So much the better. To what object is
the whole system of penal law directed, if it be not that no man shall have it in his
power to flatter himself with the hope of safety, in the event of his engaging in the
commission of an act which the law, on account of its supposed mischievousness, has
 thought fit to prohibit? The argument employed as a reason against the compelling
such disclosure, is the very argument that pleads in favour of it. . . .
[T]o the man who, having no guilt to disclose, has disclosed none to his lawyer,
nothing could be of greater advantage than that this should appear; as it naturally
would if the lawyer were subject to examination.37
Kaplow and Shavell make the same point, albeit with a much more
elaborate model.38 Kaplow and Shavell posit that lawyers act as
filters for the information that triers of fact ultimately receive. When
the lawyer is effective, the trier of fact receives less unfavorable
information and more favorable information about the client and so is
more likely to decide in his favor. According to this theory, the
primary effect of the privilege is to reduce the expected sanction that
a party faces for a possibly unlawful act. Hence, the privilege ought
to be regarded as counterproductive whenever the client is factually
liable, excepting only the case where the sanctions for the
individual's act are too high. Deterrence would therefore increase,
and that would be undesirable only in cases in which the law had
established excessive sanctions in the first place. In such a case, the
proper reform would be to correct the sanction rather than extend a
privilege to suppress evidence.
Although superficially attractive, the Bentham-Kaplow-Shavell
theory proves too much. By the same reasoning, for example,
people should not be allowed to have

947

lawyers at all. Kaplow and Shavell give no account of the good that
the privilege might do, other than acknowledging that the privilege
makes it easier for the innocent to escape liability. Under a normative
interpretation of their theory, the privilege should be available only to
individuals who have been mistakenly (or maliciously) accused of
wrongdoing; or, put differently, that people charged with wrongdoing
should not be able to consult lawyers unless they are in fact
innocent. But of course if we knew how cases ought to be decided,
there would be little reason to have a legal process, or indeed to
have lawyers.39 Kaplow and Shavell's argument is deficient
because it ignores the useful role lawyers play in helping clients to
develop contingent claims. . . . When clients are deterred from
asserting contingent claims, because they are reluctant to reveal the
bad facts upon which such claims may depend, society loses the
benefit of whatever interest the contingent claim is supposed to
serve. Kaplow-Shavell miss this effect, as did Bentham before them.
4. The Wigmore Theory
John Henry Wigmore defended the theory of the privilege against
Bentham's attack, declaring: “In order to promote freedom of
consultation of legal advisers by clients, the apprehension of
compelled disclosure by the legal advisers must be removed; and
hence the law must prohibit such disclosure by the legal advisers
except on the client's consent.40 Bentham's argument was that the
privilege operates as a mere filter that would encourage unlawful
acts. As Wigmore pointed out, this argument erroneously assumed
that “all the acts and facts on one side have been wholly right and
lawful and all of those on the other wholly wrong and unlawful.”41
But in a large proportion of cases, each party would have something
to fear. Without a privilege, “a person who has a partly good cause
would often be deterred from consultation by virtue of the bad part or
of the part that might possibly (to his notion) be bad.”42 Wigmore's
idea that the privilege is needed to ensure full disclosure—still the
dominant theme in the literature—adumbrates the contingent claim
theory by recognizing that the facts and law will not uniformly favor
either party. Nevertheless, this idea is too simple to explain the
cases. This is particularly evident in the famous Wigmore gloss upon
the privilege. According to Wigmore, the conditions for the privilege
are:
Where legal advice of any kind is sought (2) from a professional legal adviser in his
capacity as such, (3) the communications relevant to that purpose, (4) made in
confidence (5) by the client, (6) are at his instance permanently protected (7) from
disclosure by himself or by the legal adviser, (8) except the client waives the
protection.43
The critical ingredient missing from his exegesis, which has exposed
it to the contemporary attack, is any recognition of the relevance of
behavioral incentives. Even if

948

each of Wigmore's conditions is met, it would be senseless to

provide confidentiality if the privilege would not advance the
exploration of contingent claims. Courts have intuited this point, and
have often refused to recognize a privilege, even when the Wigmore
conditions have clearly been met, where doing so would not advance
the exploration of contingent claims. Of course, courts have not
formulated the issue in this way, but have simply engrafted upon
Wigmore a long list of ad hoc exceptions. The contingent claim
theory explains the cases more parsimoniously than Wigmore's
ideas do because it focuses explicitly on the relevant incentives, and
it gives a more satisfactory account of the beneficial purposes that
the privilege seeks to advance.
5. Rights-Based Theories
Several commentators have proposed that under some
circumstances it would be wrong—immoral—for the legal system to
force the disclosure of attorney-client communications. David
Louisell, for example, has urged that respect for privacy could
adequately explain the privilege.44 Charles Fried, on another tack,
has defended the privilege as necessary to allow people in legal
scrapes to discover what their rights are.45 Neither of these theories
adequately explains the privilege.
(a) Privacy
Louisell's notion that the privilege is founded on privacy leaves one
to ponder: what is privacy founded upon? The legal system has
routinely sacrificed the privacy of litigants to the interests of justice. A
litigant can be obliged to reveal the most sordid and intimate details
of his marriage or even to pull his pants down in front of the jury. Of
course one could say that the system respects privacy, not
absolutely, but only to the extent that it respects privacy. Surely a
useful theory requires a deeper tread.
(b) Adjective Right
According to Fried, the attorney-client privilege is rooted in the
sense of personal autonomy that legal systems must respect.46 “[I]t
is immoral for society to limit [a person's] liberty other than according
to the rule of law,” and is therefore “immoral for society to constrain
anyone from discovering what the limits of its power over him are.”
Similarly, it is “immoral for society to constrain anyone from informing
another [about] those limits. . . .”47 Supposing that certain attorney-
client communications would be less likely to occur in the absence of
the privilege, Fried must explain why

949

refusing to recognize the privilege ought to count as a morally

unacceptable “constraint.” Not every change in the world that makes
a certain end state more or less likely qualifies as a “constraint.”
When government subsidizes a certain activity (or refuses to
subsidize it) it makes the activity more or less likely to occur without
“constraining” that result. But even if denial of the privilege is a
constraint, the question of justification must be addressed by more
than mere assertion. Again some inquiry into the particular
consequences and their desirability is required.48 . . .
III. THE WORK PRODUCT DOCTRINE AND THE JOINT
PRODUCTION THEORY
A. I
The work product doctrine has proven to be as puzzling as the
attorney-client privilege. The doctrine was first articulated in 1947, in
Hickman v. Taylor,49 where the Supreme Court held that there is a
qualified immunity from discovery for attorney work product prepared
in anticipation of litigation. The plaintiff had brought suit to recover for
the death of a seaman in the sinking of the defendants' tug. The
defendants' attorney had interviewed all of the survivors of the
sinking and taken statements from them. The plaintiff sought copies
of these statements in discovery, and the district court held the
attorney in contempt for failing to provide them. The Supreme Court
reversed, holding that the statements that the plaintiff sought were
protected from discovery as attorney's work product. In so holding,
the Court did not rely upon the Federal Rules of Civil Procedure—
though after the Hickman case an explicit work product provision
was added50—but instead found an analogy in the English practice
of protecting from discovery “all documents prepared by or for
counsel with a view to litigation.” Two opinions were filed in the case,
that of the Court, authored by Justice Murphy, and a concurring
opinion by Justice Jackson (in which Justice Frankfurter joined). The
Murphy opinion stressed that the plaintiff's attorney could have
acquired similar statements directly from the witnesses themselves,
since they were all still alive, and asserted that the purpose of the
doctrine is to protect the privacy of the lawyer's thoughts. He worried
that, if the plaintiff won, lawyers would be deterred from writing down
their thoughts. He also predicted that “Inefficiency, unfairness and
sharp practices would inevitably develop in the giving of legal advice
and in the preparation of cases for trial,” presumably because in the
absence of a work product doctrine lawyers would seek other ways
to keep the relevant material out of

950

the hands of their opponents.51 The Jackson approach had a

different emphasis: that discovery of work product would be
inconsistent with the adversary system and would allow a lawyer to
live on “wits borrowed from the adversary.”52 Modern scholars have
disagreed on both the merits of the doctrine and its justification.53
The best explanatory account now available is Judge Easterbrook's.
He argues that the work product doctrine operates in much the same
way as other rights restricting the use of intellectual property.54 Just
as too few songs would be written if there were no copyrights, too
little legal information would be produced in the absence of the work
product doc
trine.55 Although we rely on Easterbrook's argument that the work
product doctrine is essentially a property-right system in some ways
similar to copyright,56 we think he missed the essential idea that
makes it important for the law to enforce these property rights.
Easterbrook suggests that the doctrine protects and nurtures lawyer
creativity; we think that it mainly protects and encourages something
different but just as important—lawyer perseverance.
B. T A W P D

1. The Joint Production Theory

Most litigation activity involves a form of “joint production,” whereby
the lawyer cannot get information helpful to his side of the case
without also producing information helpful to the other side. In order
to get helpful information (of which more is preferred to less), he has
to take harmful information (of which less is preferred to more). Both
a trial lawyer's factual investigations and the resulting legal
theorizing are subject to joint production. It is difficult to generate
helpful legal theories and useful “facts” without also generating
theories and facts more helpful to the other side. In many factual
investigations, the same conditions apply. It is often impossible to
interview witnesses to find facts helpful to one's own side without
discovering facts helpful

951

to the other side.57 A lawyer will normally want to consider

carefully the strongest positions that could be asserted by an
opponent, and this may oblige an attorney to think about a case from
the opponent's point of view.
As Gordon Tullock has pointed out, the private and social value of
the investment in lawyering activity may be significantly out of line
with each other.58 Tullock hypothesized that the net benefits from
litigation would often appear higher to private litigants than they
would to society, giving private parties an incentive to overinvest. In
the context of much of lawyering activity, however, the reverse may
be true. If a legal investigation is subject to joint production, it can be
quite easy for the expected private value of the information
generated to be zero, even when its expected social value is large.
In such a case, there would be inadequate private incentive to
undertake such investigations even when they are socially valuable.
To the extent this is true, the concern is the opposite of Tullock's; it is
not that too much will be invested in the resolution of “private”
disputes but rather too little. The work product rule is a solution to
this problem. Under this doctrine, attorneys are allowed to hold the
detrimental results of their joint production investigations in
confidence from the other side, thus lowering the private costs of the
lawyering effort.59 This strategy has social costs, however, which we
predict are reflected in the rules themselves. The principal one is the
duplication of production. An optimal rule of confidentiality would
seek to maximize the private incentive to undertake socially valuable
joint production investigation subject to the constraint of duplication.
Formally stated, a party should be able to suppress disclosure up to
the point where the value of the increased information produced is
equal to the increased cost of duplicative effort. In addition, under
our theory no valuable incentive is lost by requiring a party to
disclose information favorable to his case, so we would expect that
such information would be discoverable even when it was produced
under conditions of joint production. It is coerced disclosure of
unfavorable information and ambiguously favorable information (for
example, early drafts of legal briefs) that would reduce the private
incentive for joint production, so it is here that the courts should be
especially protective if they are deciding cases in a way explained by
our theory.

952

We do not claim that courts have adopted the joint production

theory in their opinions, but only that this theory gives a better
account of their actual results in work product cases than their stated
theories. The privacy theory that Murphy emphasized in Hickman is
both too broad and too narrow when measured against the
subsequent case results that define the doctrine, including the
Court's own. Nonetheless, it is probably no accident that the Court
found the Hickman facts to be an especially appealing basis for the
doctrine. In terms of our theory, the documents that the plaintiff
sought were the quintessential result of joint production. When the
defendants' attorney interviewed the accident survivors, no one
knew the cause of the tug's sinking. Ex ante, the lawyer would have
predicted that the interviews would reveal both favorable and
unfavorable information about why the tug sank. In this situation, if
the defendants' lawyer knew that he would have to disclose to his
opponent all the information that he acquired, he would have less
incentive to conduct the interviews in the first place. The
consequence would be a reduction in the amount and quality of
information available at trial.
Indeed, Murphy's opinion may be read to suggest the joint
production theory, although one almost needs a microscope to find it.
Recall that Murphy predicted that without the doctrine lawyers would
not write things down and “inefficiency, unfairness and sharp
practices” would result. Perhaps what he meant was that in the
absence of the work product doctrine lawyers would still be reluctant
to disclose the unfavorable information yielded by their joint
production activities. Hence, lawyers would be reluctant to record
this unfavorable information, because this would make it more
accessible to their opponents. By extension, if lawyers had to
constantly cull their records to ensure that they contained nothing
unfavorable to their side, it would certainly be inefficient, and for
lawyers to suppress unfavorable information (in the absence of the
doctrine's protection) may be the sharp practice that Murphy
envisioned. Hence, what the Court wrote in Hickman is consistent
with the joint production theory.
2. The Easterbrook Theory
 Frank Easterbrook stresses that our legal system relies on the
attorney's self-interest to stimulate the production of legal goods or
“lawyering.” If such goods are to be produced, it will be necessary to
allow the producer to profit from the production or otherwise to
subsidize the production of such goods. If producers cannot derive
any special benefits from their creation, if nonproducers are welcome
to use them without having to pay for or contribute to their creation,
there is a substantial risk that not enough of the good will be
produced. Under Easterbrook's theory, the work product doctrine is
analogous to copyright protection. Just as the creative efforts of
artists must be protected in order to induce the optimal scale of
them, so must be the creative efforts of lawyers.
The copyright theory of the work product doctrine places the wrong
stress on the legal production process. The work product doctrine
protects not so much legal inspiration, but legal perspiration. Thomas
Edison would maintain that the two are related, and so do we.
Nonetheless, instead of merely protecting the lawyer's creative
inspirations as such, the work product doctrine protects a broader
class of information: the

953

results of investigations that can yield both favorable and

unfavorable information. Of course, even legal inspiration may be
produced under joint production conditions. In simply thinking about
the theory of a case, a lawyer may produce insights more helpful to
the other side than to his own. In this situation, both our theory and
Easterbrook's predict that the unfavorable insight would be protected
by the work product doctrine.
The joint production theory includes legal creativity as a subset.
When lawyer-produced information involves no legal creativity, we
would predict that the work product doctrine would nonetheless
protect it if the information is produced under joint conditions. Thus,
interviewing witnesses in an accident case certainly involves little
legal creativity—indeed, the lawyer may often delegate the task to an
investigator for this reason—but the results of the interviews should
nonetheless be protected, at least if courts accept the joint
production theory. The reason is simple: interviewing witnesses can
just as easily yield unfavorable as favorable information.
We have one further disagreement with Judge Easterbrook's
analysis. Easterbrook, elaborating on a model first suggested by
Tullock, suggests that litigation is often a “fight over spilt milk” where
the outcome of the case may have little influence on how the parties
behave in the future. If litigation has only a stakes dividing function, it
is socially desirable to restrict as much as possible the expenditure
of resources resolving the dispute. Thus, any incentives to expend
resources on such an effort—such as those created by the work
product doctrine—would be, as Tullock points out, socially perverse.
The error in this argument is that it overlooks the intimate
relationship between accurate stakes dividing and rule enforcement.
If cases are not accurately decided, the underlying rules will not be
implemented, with a corresponding loss in the deterrent function of
those rules. Thus, by offsetting disincentives to the production of
legal information, the work product doctrine advances rather than
retards the social interest, which explains its persistence in the
cases.
In any event, whether the better account of the doctrine is
Easterbrook's theory or our own is something that ultimately must be
determined by looking at the cases.

NOTES AND QUESTIONS

1. One of the many interesting facets of the attorney-client privilege
is that even its friends have serious doubts about it. Among the
strongest advocates of the privilege, Dean Wigmore stated:
[T]he privilege remains an exception to the general duty to disclose. Its benefits are all
indirect and speculative; its obstruction is plain and concrete. . . . It is worth preserving
for the sake of a general policy, but is nonetheless an obstacle to the investigation of
the truth. It ought to be strictly confined within the narrowest possible limits consistent
with the logic of its principle. [8 John Henry Wigmore, Evidence §2291, at 554 (1905).]
Similarly, in United States v. Nixon, 418 U.S. 683 (1974), the
Supreme Court addressed the scope of privileges generally,
specifically referring to the attorney-client privilege:

954
[T]he public . . . has a right to every man's evidence, except for those persons
protected by a constitutional, common-law, or statutory privilege, [citing precedents]. . .
. And, generally, an attorney . . . may not be required to disclose what has been
revealed in professional confidence. . . . [P]rivileges against forced disclosure . . . [a]s
exceptions to the demand for every man's evidence are not lightly created nor
expansively construed, for they are in derogation of the search for truth. [Id. at 709-
710.]
Thus, the Supreme Court seems to be in accord with the view that
the privilege should be narrowly construed. The reason for this is
that the costs of privilege are obvious, while the benefits obscure. Do
the contingent claim and joint production theories redress this
imbalance? Are they persuasive? Plausible?
2. Recall that the Supreme Court in Upjohn took a somewhat
different view of the privilege than that expressed in Nixon. There the
Court said: “Application of the attorney-client privilege to
communications such as those involved here, however, puts the
adversary in no worse position than if the communication had never
taken place. The privilege only protects disclosure of
communications; it does not protect disclosure of the underlying
facts by those who communicated with the attorney.” Is this correct?
In large measure it depends on what the baseline is, doesn't it? If the
baseline is the cost of securing information from the opposing client,
the Court might be right, but why is that the correct baseline? Why
isn't it instead the cheapest cost of obtaining the information, which
obviously is from the attorney, once the attorney is in possession of
the relevant information? Rather than depose the client, the
adversary need merely ask the attorney for copies of the attorney's
files. So, we are back to the same question: What justifies the
increased cost of obtaining the relevant information? In addition, do
you believe that putting the information in the hands of the attorney
will not increase the adversary's costs of obtaining that information
from the client? Isn't it obvious that part of what counsel will do is
advise how to answer discovery requests in a legal, but as unhelpful
as possible, manner?
Last, don't arguments like the Court's in Upjohn suggest that
counsel will not engage in behavior that raises the costs of their
adversary? But what exactly does that mean? Suppose a client says
X to its lawyer, but Y at a deposition. Must the lawyer correct this
misimpression? If so, as the conventional arguments for the privilege
implicitly suggest, isn't it obvious that the privilege provides no
incentive to disclose? Isn't it thus obvious that we do not expect
attorneys to police their clients in this fashion? Isn't it thus obvious
that one thing that must be explained is why such tactics are
tolerated, and that naive statements such as the Court's in Upjohn
dramatically miss the point of what is going on? Again, how do the
contingent claim and joint production theories measure up here?
3. In thinking about the contingent claim theory, remember that its
predictions and Wigmore's are largely consistent. The difference lies
in Wigmore's need to create numerous ad hoc exceptions. The
central argument of the contingent claim theory is that it captures the
essence of what the cases do without the need for exceptions.
4. In the Allen et al. article from which the preceding excerpt is
taken, the authors proceed to discuss numerous cases in an effort to
show that their theories better explain the cases than any of the
alternatives. We cannot reproduce the detailed arguments here, but
urge you to consult that discussion. To whet your appetite, consider
two matters:

955

(a) The contingent claim theory predicts that the privilege will
become qualified rather than absolute. This is a somewhat bold
prediction, but in fact cases are beginning to adopt this view. See,
e.g., Greater Newburyport Clamshell Alliance v. Public Service Co.
of N.H., 838 F.2d 13, 20 (1st Cir. 1988) (in civil damages action,
“fairness requires that the privilege holder surrender the privilege to
the extent that it will weaken, in a meaningful way, the defendant's
ability to defend”); In re Grand Jury Proceedings, Des Moines, Iowa,
568 F.2d 555, 557 (8th Cir. 1977) (opponent's need relevant to a
determination of privilege).
(b) Also, consider the following from the same article:
The theory has a number of other predictions that are borne out by the cases. First,
when a client consults a lawyer to perform some function that could not possibly lead to
a contingent claim, the client's communications ought not to be privileged. In this type
of case, the client's expectation that he would be conveying unfavorable information to
the lawyer could not deter him from obtaining the lawyer's advice about a contingent
claim, since that is not his purpose. Accordingly, we find in the cases that the privilege
does not apply when the attorney has been retained as an agent to procure a loan,
when the attorney is asked to witness a deposition, and in similar cases.
Our core proposition is that the purpose of the privilege is to encourage clients to
divulge unfavorable information to their attorneys upon which contingent claims might
rest. It follows that there is no need for the privilege when a regulatory agency or some
other binding authority has obliged the client to hire an attorney and divulge
unfavorable information to him. The cases bear out this prediction.
An Eighth Circuit case, Simon v. G.D. Searle & Co., 816 F. 2d 397 (8th Cir. 1987),
provides yet another demonstration of the explanatory power of the contingent claim
theory. The case involved litigation over Searle's intrauterine contraceptive device.
During discovery, Searle refused to turn over certain documents prepared by its risk
management department. This department monitors the company's products liability
litigation and analyzes its litigation reserves. In doing so, the department utilizes
individual case reserves determined by the assessment of the company's legal staff.
Relying on various arguments of Wigmore, the court held that the attorney-client
privilege did not protect the documents prepared by the risk management department.
The court asserted that these documents did not embody communications relevant to
obtaining legal advice and that the documents related to business rather than legal
matters.
In dissent, Judge Gibson politely noted the court's opinion verged on the incoherent:
“Only by concluding that Searle is in the business of litigation can the court convert
these litigation-oriented documents into business planning documents.” Judge Gibson's
lament is correct, but so too is the majority's result. No contingent claim could
conceivably rest upon the information collected and utilized by the risk management
department and the company's lawyers. The result reached, then, is perfectly in accord
with the predictions of the contingent claim theory, even though, as Judge Gibson
rightly says, the court's opinion is virtual nonsense if analyzed from the perspective of
the conventional explanations of the privilege. [Allen et al. supra, 19 J. Legal Stud. at
382-383.]
5. If Allen et al. are correct, and the work-product doctrine protects
and encourages lawyer perseverance, how expansively should the
doctrine be interpreted? While the doctrine only protects documents
that are prepared “in anticipation of litigation,” courts are divided as
to the proper definition of the term. In a case heard en banc by
956

the First Circuit, the court found that notes and memoranda drafted
by in-house tax attorneys were not protected by the doctrine. The
majority believed the documents were independently required by the
IRS and would not be used in litigation, thus denying protection. The
dissent, pointing out that the documents would not have been
prepared if litigation was not anticipated, vigorously argued that the
documents should have been protected. See United States v.
Textron, 577 F.3d 21 (1st Cir. 2009), petition for cert. filed, 2009 WL
5115221 (U.S. Dec. 24, 2009) (No. 09-750). Which side is correct?
Given the reason for the work-product doctrine, should dual purpose
documents—documents that analyze future litigation possibilities,
but are used primarily to make a business or tax decision—be
protected? Should “in anticipation of litigation” be interpreted to
mean prepared “because of” litigation or prepared for the “primary
purpose of” litigation? See also G.D. Searle & Co, supra Note 4,
finding that the risk management documents were not prepared for
purposes of litigation, and thus not protected by the work-product
doctrine, but noting that the documents “may be protected from
discovery to the extent that they disclose the individual case
reserves calculated by Searle's attorneys, [because such] figures
reveal the mental impressions, thoughts, and conclusions of an
attorney in evaluating a legal claim.” Id. at 401.

D. THE MARITAL PRIVILEGES

There are two distinct marital privileges, the marital communications

privilege and the marital testimonial privilege: The marital
communications privilege protects confidential communications
between spouses; the marital testimonial privilege, applicable
predominantly in criminal trials, prevents an accused's spouse from
testifying against the accused. A particular jurisdiction may have
either or both privileges. In drafting the Proposed Federal Rules on
privilege, the Advisory Committee included only the marital
testimonial privilege. Subsequently, the Supreme Court in Trammel
v. United States, 445 U.S. 40, 51 (1980), indicated in dictum that it
would continue to apply the marital confidential communications
privilege as well. Trammel is reproduced in Subsection 2, infra.
Federal courts recognized the two privileges both prior to and after
the adoption of the Federal Rules of Evidence.

1. The Marital Communications Privilege

a. Elements of the Privilege and Its Justifications
The marital communications privilege has three requirements: (1)
the privilege extends only to words or acts that are communications
to the other spouse, (2) the communication must have been made
during a valid marriage, and (3) the communication must have been
made with the intent that it remain confidential. See United States v.
Marashi, 913 F.2d 724, 729 (9th Cir. 1990). The party asserting the
privilege has the burden of proving that disclosure would reveal
words or acts “intended as communications.” The party also has the
burden of proving that the communication

957

was made during a valid marriage. If these two elements are

established, then the final element of confidentiality is presumed.
See United States v. Hamilton, 19 F.3d 350, 354 (7th Cir. 1994). The
party opposing the privilege can overcome this presumption by
showing that the communication in question was not intended to be
confidential.
Similar to the justifications that have been offered for the attorney-
client privilege, two justifications are commonly offered for the marital
communication privilege: (1) to encourage open and frank
discussions between spouses and (2) regardless of the privilege's
encouraging effect, to protect the privacy of intimate spousal
communications. Consistent with both these rationales, the marital
communications privilege applies to communications that take place
during the marriage relationship, and the privilege does not end with
the termination of the marriage.
 b. Holder
Jurisdictions differ as to who holds this privilege. The holder may
be the spouses jointly, the communicating spouse, the witness
spouse who heard the communication, or the spouse who is also a
party. Most federal courts have held that the privilege is held by both
spouses and that each can invoke the privilege to prevent the other
from testifying about spousal communications. See United States v.
281 Syosset Woodbury Rd., 71 F.3d 1067 (2d Cir. 1995). In criminal
cases, some courts have held that the exclusive holder of the
privilege is the defendant. See, e.g., United States v. Acker, 52 F.3d
509 (4th Cir. 1995). This permits the defendant to compel the spouse
to testify about spousal communications, if such evidence can
exculpate the defendant. In cases where both spouses are holders
of the privilege, one but not the other may have waived it. Can a
non-waiving witness or party subsequently claim the privilege? The
cases have been split on this issue.
c. Scope of the Privilege
As with all privileges, the marital communications privilege is
limited by judicial interpretation of its requirements.
Valid Marriage. The party who asserts the privilege must prove
that a valid marriage existed at the time the communication was
made. If the parties were separated, the privilege technically still
applies, but many courts refuse to uphold the privilege in such
circumstances. Some courts adopt a categorical rule rejecting the
privilege in such circumstances. United States v. Fulk, 816 F.2d 1202
(7th Cir. 1987). More commonly, courts use a balancing test to
determining whether upholding the privilege will serve the purpose of
promoting full communication between spouses. In United States v.
Roberson, 859 F.2d 1376 (9th Cir. 1988), the court upheld the district
court's ruling that the privilege did not apply because the couple was
“irreconcilably” separated at the time of their confidential
communications. In future cases, the court said, judges should
consider whether, at the time of the communication, a divorce action
had been filed, as well as other relevant evidence: for example,
whether there were statements by either party regarding
irreconcilability; or whether there were

958

allegations of gross misconduct or grievances stretching back over

a period of years. Such evidence “may distinguish the failed
marriage from the occasional disharmony that sometimes
accompanies these relationships.” Id. at 1380. How well suited do
you think courts are to make these kinds of determinations? The
Roberson court also said that the inquiry should address the interest
society has in preserving the confidentiality of marriages generally,
not the confidentiality of the couple before the court. Does a
categorical rule better achieve this purpose?
For the most part, courts construe the marriage requirement very
narrowly. For instance, neither federal nor state courts have
extended the protection of the privilege to unmarried opposite-sex
couples who cohabitate. United States v. Acker, 52 F.3d 509 (4th Cir.
1995) (finding no valid marriage where the heterosexual couple
involved had been living together for 25 years in two states that did
not recognize common law marriage). But see In re Grand Jury
Proceedings Witness Ms. X, 562 F. Supp. 486 (N.D. Cal. 1983)
(stating in dicta that it might be appropriate to allow unmarried
opposite-sex partners to invoke the marital communication privilege).
The reason for this refusal to recognize unmarried partnerships rests
on two grounds. First, courts point to the benefits of a bright-line rule
that does not require an inquiry into the details of the relationship.
United States v. Acker, 52 F.3d at 515 (discussing the administrative
difficulty of determining what relationships would qualify as “de facto”
marriages). Second, some courts also have stated that the privilege
should not extend to unmarried cohabitants because they have not
assumed the responsibilities of marriage. Id.
In the case of same-sex couples, the idea that couples are
intentionally avoiding the responsibilities of marriage does not hold
true, as until recently such individuals were legally prevented from
obtaining valid marriages in many states. Same-sex couples
consequently had a stronger case for claiming the privileges as
unmarried cohabitants. The recent Supreme Court's decision in
Obergefell v. Hodges, 135 S. Ct. 2584 (2015), has changed things
dramatically by obligating every state to recognize and license same-
sex marriage. From now on, therefore, the marital privileges will
likely attach only to same-sex couples who formalized their
relationship through marriage.
Confidentiality. It is a near universal rule that all marital
communications will be treated as confidential unless the party
seeking to introduce the evidence shows that the communication
was not intended to be, or should not be, considered confidential.
The presence of third persons is an almost certain indication that the
requisite intent of confidentiality is lacking. Wolfle v. United States,
291 U.S. 7, 16 (1934) (use of stenographer destroyed the privilege).
If a child is old enough to comprehend what is being said, spousal
statements made in the presence of the child—at the dinner table,
for example, or on a drive in the family automobile—will typically not
be privileged. Chamberlain v. State, 348 P.2d 280, 286 (Wyo. 1960).
Sometimes courts will find that a third party is constructively present
if the spouse made the same communication to a third party on
another occasion. People v. Burton, 286 N.E.2d 792, 798 (Ill. Ct.
App. 1972). The location in which the communication is made also is
probative as to whether the spouse intended a confidential
communication. State of Maine v. Smith, 384 A.2d 687, 691 (1978)
(finding that communicating in a public location does not necessarily
mean that the communication was not confidential; rather, the inquiry
should focus on the spouse's reasonable expectation of
confidentiality).

959

What Is a “Communication”? An issue that often arises in cases

involving the marital communications privilege is whether conduct—
acts and gestures—is protected by the privilege. Courts are required
to distinguish between non-communicative behavior and conduct
that has communicative content. For example, testimony from a wife
identifying a pair of pants as being the style and size worn by her
husband was admitted as involving no communication at all. United
States v. Bolzer, 556 F.2d 948 (9th Cir. 1977); similarly, in United
States v. Lefkowitz, 618 F.2d 1313 (9th Cir. 1980), testimony
concerning the fraudulent nature of documents turned over to the
IRS, and the location of other records, was found to be based on the
personal observations of the wife, not on any communicative
conduct of the husband. Other acts observed by spouses, however,
have been found by some courts to be communicative and thus
privileged:
[W]hen the defendant revealed the stolen objects [a gun and camera] to his wife he
was imparting a confidence as clearly as if he had told his wife, “I have stolen a gun
and a camera.” . . . Where as here conduct by a spouse can be reasonably interpreted
as intending to convey a message to the other spouse, a marital communication has
occurred. [State v. Smith, 384 A.2d 687, 690 (Me. 1978).]
The “intent to communicate” test as to whether spousal conduct
should be privileged replicates the test provided under FRE 801(a)
(2) to determine whether conduct is hearsay or not. Some courts,
however, adopt a broader test. In People v. Daghita, 299 N.Y. 194,
86 N.E.2d 172 (N.Y. 1949), the court held that it was a violation of
the confidential communications privilege to admit a wife's testimony
that her husband hid proceeds of a theft under the bed:
[T]he term communication . . . includes knowledge derived from the observance of
disclosive acts done in the presence or view of one spouse . . . because of the
confidence existing between them by reason of the marital relation. . . . [The husband]
was, in a word, confiding in her the information disclosed by his conduct. [Id. at 198-
199.]
Contrast Daghita with the holding in United States v. Estes, 793 F.2d
465, 467 (2d Cir. 1986), that “counting, hiding and laundering of the
money conveyed no confidential message. . . . Acts do not become
privileged communications simply because they are performed in the
presence of the actor's spouse.” Which do you think is the better
result?
Consider the testimony of a rape defendant's ex wife: “I drove the
defendant in my car. He was sitting in the passenger seat reading a
newspaper. I heard like water, I heard a tear drop hit the paper and I
looked over and the defendant was crying. He was looking at the
composite sketch of the rape victim's assailant as he wept.” The
North Carolina Court of Appeals decided that this information was
not privileged. See State v. Matsoake, 777 S.E.2d 810 (N.C. App.
2015). Do you agree?
d. Exceptions
Like the attorney-client privilege, there is an exception to the
marital communications privilege that permits the admission—by a
willing spousal witness—of statements made in the course of, or
concerning, ongoing criminal activity between the spouses. In Estes,
the first communications from the husband to the wife that first

960

disclosed his crime to her were privileged; only those

communications made after she became an accessory were
excepted from the privilege. Id. at 466.
At common law, the privilege did not apply to spousal
communications in specific kinds of litigation. Although there is
variation from state to state, the privilege is most frequently
inapplicable in prosecutions for crimes committed by one spouse
against the other or against children of either, and in actions by one
spouse against the other, typically divorce. McCormick on Evidence,
Vol. 1, §84, 131 (5th ed. 1999).
The Supreme Court of Pennsylvania has held that a defendant's
communications to his spouse were not subject to the spousal
communication privilege where the statements were intended to
create or further marital discord. Commonwealth v. Spetzer, 572 Pa.
17, 813 A.2d 707 (Pa. 2002). In Spetzer, the defendant admitted to
his wife that he had raped his stepdaughter, detailed plans for future
abuse, and attempted to intimidate his wife. 572 Pa. at 39. The court
noted that the communications were not of the “marital harmony-
inspiring” type envisioned by the common law or the Pennsylvania
General Assembly:
 Certainly the persistent and sadistic statements at issue here, concerning a husband's
actual and contemplated crimes against his wife and her children, cannot rationally be
excluded on the pretext that “considerations of domestic peace and harmony of the
marital relation forbid their disclosure.” Seitz. It would be perverse, indeed, to indulge a
fiction of marital harmony to shield statements which prove the declarant spouse's utter
contempt for, and abuse of, the marital union. Accordingly, we hold that here, as in
Seitz, the challenged communications “did not arise from the confidence existing
between the parties, but from the want of it,” id., and, as such, the communications
were admissible. 572 Pa. at 40.

PROBLEMS
12.16. Randy Dwayne Hurley was charged and convicted of armed
robbery, felony murder, and first degree murder. On appeal,
the defendant objects to the trial court's admission of letters
containing incriminating information that were written from him
to his wife on the ground that the letters should have been
protected by the marital confidential communications privilege.
Hurley, who had married his wife after the arrest but prior to
trial, had written the letters to his wife from jail. At the time of
the trial, however, the two were separated. The wife was a
willing witness. What result?
12.17. Jim Montague and his sister Mary O'Connell are charged
with conspiracy to commit mail fraud and several counts of
mail fraud for mishandling reservations of rentals by their
property management company and sidetracking money from
the owners of the units by not reporting reservations. Jim's
wife, Louise, also was an owner but agreed to cooperate with
the government and to testify against Jim and Mary. The
prosecution is seeking to present as evidence a letter that
Louise wrote Jim and left for him on the kitchen counter in
their home. The letter discussed Mary's fraudulent activities
and stated that Louise wanted Jim to confront Mary. Louise
testified that she did not intend

961
the information in the letter to remain private, as she hoped that Jim
would communicate it to Mary. Jim and Louise had children
residing in the house at the time the letter was left on the
kitchen counter. Jim has asserted the spousal communication
privilege to prevent the letter, or testimony about its contents,
from being used in the trial. Was the communication
privileged? If so, can Louise waive the privilege?
12.18. Craig Klaxon is charged with mail fraud and wire fraud for
filing a fraudulent insurance claim for a $4,000 silver tray that
he listed as having been stolen. Klaxon's wife, Connie, is
prepared to testify that she and her husband never owned a
silver tray and that she refused, when her husband had asked
her (when both Klaxon and the insurance agent were on the
phone) to sign the insurance claim. Would this testimony be
excluded by the marital communications privilege?
12.19. Chester Newman is being prosecuted for arson, burglary,
and theft. An investigation had uncovered that a fire at the
Good Times Club was a result of arson and that stereo
equipment owned by the club was missing. Defendant's wife,
Catherine Newman, is prepared to testify about certain events
involving her husband on the night of the fire. Catherine will
testify that on the night in question her husband returned
home from the Good Times Club with a set of expensive
stereo equipment. She then accompanied her husband to sell
the stereo equipment to John Palmer, a potential purchaser.
Communications concerning the source of the equipment—
that it had been “snatched” from the Club—took place during
the negotiation and sale of the equipment. Defendant filed a
motion to suppress his wife's testimony on the ground that
such conversations constituted privileged confidential
communications. Should this testimony be admissible over
Chester's objection?

2. The Marital Testimonial Privilege

a. Elements of the Privilege and Its Justifications
 The modern justification for the marital testimonial privilege is that
it exists to promote harmony in an ongoing marriage relationship;
without the privilege, one spouse could be required to testify against
the other in a criminal proceeding, bringing disharmony to the
marriage. Consistent with this rationale, the privilege is not limited to
testimony about confidential communications, and for the privilege to
apply the witness and the party must be married at the time the
privilege is invoked. See United States v. Bolzer, 556 F.2d 948 (9th
Cir. 1977).
Unlike the marital communications privilege, the marital testimonial
privilege predominantly applies in criminal, as distinguished from
civil, cases. In federal courts, it is also well established that the
testifying spouse holds the privilege and may waive it in order to
testify. The Supreme Court addressed this issue, and the scope of
the privilege, in the following case:

962

TRAMMEL V. UNITED STATES

445 U.S. 40 (1980)

Mr. Chief Justice B delivered the opinion of the Court. . . .
I
On March 10, 1976, petitioner Otis Trammel was indicted with two
others, Edwin Lee Roberts and Joseph Freeman, for importing
heroin into the United States from Thailand and the Philippine
Islands and for conspiracy to import heroin in violation of 21 U.S.C.
sec. 952(a), 962(a), and 963. The indictment also named six
unindicted co-conspirators, including petitioner's wife Elizabeth Ann
Trammel.
According to the indictment, petitioner and his wife flew from the
Philippines to California in August 1975, carrying with them a
quantity of heroin. Freeman and Roberts assisted them in its
distribution. Elizabeth Trammel then traveled to Thailand where she
purchased another supply of the drug. On November 3, 1975, with
four ounces of heroin on her person, she boarded a plane for the
United States. During a routine customs search in Hawaii, she was
searched, the heroin was discovered, and she was arrested. After
discussions with Drug Enforcement Administration agents, she
agreed to cooperate with the Government.
Prior to trial on this indictment, petitioner moved to sever his case
from that of Roberts and Freeman. He advised the court that the
Government intended to call his wife as an adverse witness and
asserted his claim to a privilege to prevent her from testifying against
him. At a hearing on the motion, Mrs. Trammel was called as a
Government witness under a grant of use immunity. She testified
that she and petitioner were married in May 1975 and that they
remained married.60 She explained that her cooperation with the
Government was based on assurances that she would be given
lenient treatment.61 She then described, in considerable detail, her
role and that of her husband in the heroin distribution conspiracy.
After hearing this testimony, the District Court ruled that Mrs.
Trammel could testify in support of the Government's case to any act
she observed during the marriage and to any communication “made
in the presence of a third person”; however, confidential
communications between petitioner and his wife were held to be
privileged and inadmissible. The motion to sever was denied.
At trial, Elizabeth Trammel testified within the limits of the court's
pretrial ruling; her testimony, as the Government concedes,
constituted virtually its entire case against petitioner. He was found
guilty on both the substantive and conspiracy charges and
sentenced to an indeterminate term of years pursuant to the Federal
Youth Corrections Act, 18 U.S.C. sec. 5010(b). . . . [The Court of
Appeals affirmed the conviction.]

963

II
The privilege claimed by petitioner has ancient roots. Writing in
1628, Lord Coke observed that “it hath been resolved by the Justices
that a wife cannot be produced either against or for her husband.” 1
E. Coke, A Commentarie upon Littleton 6b (1628). See, generally, 8
J. Wigmore, Evidence sec. 2227 (McNaughton rev. 1961). This
spousal disqualification sprang from two canons of medieval
jurisprudence: first, the rule that an accused was not permitted to
testify in his own behalf because of his interest in the proceeding;
second, the concept that husband and wife were one, and that since
the woman had no recognized separate legal existence, the husband
was that one. From those two now long-abandoned doctrines, it
followed that what was inadmissible from the lips of the defendant-
husband was also inadmissible from his wife.
Despite its medieval origins, this rule of spousal disqualification
remained intact in most common-law jurisdictions well into the 19th
century. . . . Indeed, it was not until 1933, in Funk v. United States,
290 U.S. 371, that this Court abolished the testimonial
disqualification in the federal courts, so as to permit the spouse of a
defendant to testify in the defendant's behalf. Funk, however, left
undisturbed the rule that either spouse could prevent the other from
giving adverse testimony. Id., at 373. The rule thus evolved into one
of privilege rather than one of absolute disqualification. . . .
The modern justification for this privilege against adverse spousal
testimony is its perceived role in fostering the harmony and sanctity
of the marriage relationship. Notwithstanding this benign purpose,
the rule was sharply criticized. Professor Wigmore termed it “the
merest anachronism in legal theory and an indefensible obstruction
to truth in practice.” 8 Wigmore §2228, at 221. The Committee on
Improvements in the Law of Evidence of the American Bar
Association called for its abolition. 63 American Bar Association
Reports 594-595 (1938). In its place, Wigmore and others suggested
a privilege protecting only private marital communications, modeled
on the privilege between priest and penitent, attorney and client, and
physician and patient. See 8 Wigmore §2332 et seq.62 . . .
 In Hawkins v. United States, 358 U.S. 74 (1958), this Court
considered the continued vitality of the privilege against adverse
spousal testimony in the federal courts. There the District Court had
permitted petitioner's wife, over his objection, to testify against him.
With one questioning concurring opinion, the Court held the wife's
testimony inadmissible; it took note of the critical comments that the
common-law rule had engendered, . . . but chose not to abandon it.
Also rejected was the Government's suggestion that the Court
modify the privilege by vesting it in the witness-spouse, with freedom
to testify or not independent of the defendant's control. The Court
viewed this proposed modification as antithetical to the widespread
belief, evidenced in the rules then in effect in a majority of the States
and in England, “that the law should

964

not force or encourage testimony which might alienate husband

and wife, or further inflame existing domestic differences.” Id., at 79.
Hawkins, then, left the federal privilege for adverse spousal
testimony where it found it, continuing “a rule which bars the
testimony of one spouse against the other unless both consent.” Id.,
at 78. . . . However, in so doing, the Court made clear that its
decision was not meant to “foreclose whatever changes in the rule
may eventually be dictated by 'reason and experience.' ” [Id.], at 79.
III
. . . The Federal Rules of Evidence acknowledge the authority of the
federal courts to continue the evolutionary development of
testimonial privileges in federal criminal trials “governed by the
principles of the common law as they may be interpreted . . . in the
light of reason and experience.” Fed. Rule Evid. 501. . . .
Although Rule 501 confirms the authority of the federal courts to
reconsider the continued validity of the Hawkins rule, the long history
of the privilege suggests that it ought not to be casually cast aside.
That the privilege is one affecting marriage, home, and family
relationships—already subject to much erosion in our day—also
counsels caution. At the same time, we cannot escape the reality
that the law on occasion adheres to doctrinal concepts long after
experience suggests the need for change. . . .
Since 1958, when Hawkins was decided, support for the privilege
against adverse spousal testimony has been eroded further. Thirty-
one jurisdictions, including Alaska and Hawaii, then allowed an
accused a privilege to prevent adverse spousal testimony. . . . The
number has now declined to 24. In 1974, the National Conference on
Uniform State Laws revised its Uniform Rules of Evidence, but again
rejected the Hawkins rule in favor of a limited privilege for
confidential communications. See Uniform Rules of Evidence, Rule
504. That proposed rule has been enacted in Arkansas, North
Dakota, and Oklahoma—each of which in 1958 permitted an
accused to exclude adverse spousal testimony.63 The trend in state
law toward divesting the accused of the privilege to bar adverse
spousal testimony has special relevance because the laws of
marriage and domestic relations are concerns traditionally reserved
to the states. . . .
Testimonial exclusionary rules and privileges contravene the
fundamental principle that “ 'the public . . . has a right to every man's
evidence.' ” United States v. Bryan, 339 U.S. 323, 331 (1950). As
such, they must be strictly construed and accepted “only to the very
limited extent that permitting a refusal to testify or excluding relevant
evidence has a public good transcending the normally predominant
principle of

965

utilizing all rational means for ascertaining truth.” Elkins v. United

States, 364 U.S. 206, 234 (1960) (Frankfurter, J., dissenting). . . .
Here we must decide whether the privilege against adverse spousal
testimony promotes sufficiently important interests to outweigh the
need for probative evidence in the administration of criminal justice.
It is essential to remember that the Hawkins privilege is not needed
to protect information privately disclosed between husband and wife
in the confidence of the marital relationship. . . . Those confidences
are privileged under the independent rule protecting confidential
marital communications. . . . The Hawkins privilege is invoked, not to
exclude private marital communications, but rather to exclude
evidence of criminal acts and of communications made in the
presence of third persons.
No other testimonial privilege sweeps so broadly. The privileges
between priest and penitent, attorney and client, and physician and
patient limit protection to private communications. These privileges
are rooted in the imperative need for confidence and trust. The
priest-penitent privilege recognizes the human need to disclose to a
spiritual counselor, in total and absolute confidence, what are
believed to be flawed acts or thoughts and to receive priestly
consolation and guidance in return. The lawyer-client privilege rests
on the need for the advocate and counselor to know all that relates
to the client's reasons for seeking representation if the professional
mission is to be carried out. Similarly, the physician must know all
that a patient can articulate in order to identify and to treat disease;
barriers to full disclosure would impair diagnosis and treatment.
The Hawkins rule stands in marked contrast to these three
privileges. Its protection is not limited to confidential
communications; rather it permits an accused to exclude all adverse
spousal testimony. As Jeremy Bentham observed more than a
century and a half ago, such a privilege goes far beyond making
“every man's house his castle,” and permits a person to convert his
house into “a den of thieves.” 5 Rationale of Judicial Evidence 340
(1827). It “secures, to every man, one safe and unquestionable and
ever ready accomplice for every imaginable crime.” Id., at 338.
The ancient foundations for so sweeping a privilege have long
since disappeared. Nowhere in the common-law world—indeed in
any modern society—is a woman regarded as chattel or demeaned
by denial of a separate legal identity and the dignity associated with
recognition as a whole human being. Chip by chip, over the years
those archaic notions have been cast aside so that “[n]o longer is the
female destined solely for the home and the rearing of the family,
and only the male for the marketplace and the world of ideas.”
Stanton v. Stanton, 421 U.S. 7, 14-15 (1975).
 The contemporary justification for affording an accused such a
privilege is also unpersuasive. When one spouse is willing to testify
against the other in a criminal proceeding—whatever the motivation
—their relationship is almost certainly in disrepair; there is probably
little in the way of marital harmony for the privilege to preserve. In
these circumstances, a rule of evidence that permits an accused to
prevent adverse spousal testimony seems far more likely to frustrate
justice than to foster family peace.64 Indeed, there is reason to
believe that vesting the privilege in the accused

966

could actually undermine the marital relationship. For example, in a

case such as this, the Government is unlikely to offer a wife
immunity and lenient treatment if it knows that her husband can
prevent her from giving adverse testimony. If the Government is
dissuaded from making such an offer, the privilege can have the
untoward effect of permitting one spouse to escape justice at the
expense of the other. It hardly seems conducive to the preservation
of the marital relation to place a wife in jeopardy solely by virtue of
her husband's control over her testimony.
IV
Our consideration of the foundations for the privilege and its history
satisfy us that “reason and experience” no longer justify so sweeping
a rule as that found acceptable by the Court in Hawkins. Accordingly,
we conclude that the existing rule should be modified so that the
witness-spouse alone has a privilege to refuse to testify adversely;
the witness may be neither compelled to testify nor foreclosed from
testifying. This modification—vesting the privilege in the witness-
spouse—furthers the important public interest in marital harmony
without unduly burdening legitimate law enforcement needs.
Here, petitioner's spouse chose to testify against him. That she did
so after a grant of immunity and assurances of lenient treatment
does not render her testimony involuntary. . . . Accordingly, the
District Court and the Court of Appeals were correct in rejecting
petitioner's claim of privilege, and the judgment of the Court of
Appeals is affirmed.
[The concurring opinion of Justice Stewart is omitted.]

NOTES AND QUESTIONS

1. Consider carefully the last footnote in Trammel. As the Court
acknowledged early in its opinion, Mrs. Trammel was heavily
involved in drug trafficking and thus faced the possibility of serious
criminal penalties. Thus, the government's offer of immunity to her
was a substantial incentive for her to testify against her husband.
Perhaps the Trammels' marriage was likely to end regardless of the
immunity, and perhaps she would have been willing to testify against
her husband in any event. If it were clear that she would have
testified without a grant of immunity, however, it seems unlikely that
the prosecutor would have offered her immunity. In any event, if we
are serious about trying to preserve marital harmony—as
recognizing the testimonial privilege suggests we are—why should
we formulate the privilege in a way that encourages prosecutors to
pressure one spouse into testifying against the other? If the accused
spouse could claim the privilege, the government, as the Court
recognized, would have no incentive to try to drive a wedge between
the husband and wife with an offer of leniency or immunity in cases
where the spouses were cohorts in crime or by trying to pit an
innocent spouse against the charged spouse. On the other hand, in
states where the accused spouse holds the privilege, prosecutors
may not be able to compel testimony from the victim spouse in
domestic violence cases. Malinda L.

967

Seymore, Isn't It a Crime: Feminist Perspectives on Spousal

Immunity and Spousal Violence, 90 Nw. U. L. Rev. 1032, 1036
(1996).
2. The privilege may not apply if the marriage relationship is no
longer viable at the time the testimony is sought. Should courts focus
on whether the marriage is in a state of “disrepair” when the
testimonial privilege is claimed? In United States v. Brown, 605 F.2d
389 (8th Cir. 1979), the Eighth Circuit reversed its prior approach
and premised its rejection of the privilege primarily upon its opinion
of the health of the marriage. Noting that the husband and wife had
not seen each other for eight months, the court stated that is was
“difficult to visualize” how protection of the marital bond “would have
required the total exclusion of Mrs. Clincy from the witness stand.”
Should courts have the discretion to make such judgments? Some
don't think so. See United States v. Lilley, 581 F.2d 182 (8th Cir.
1978).
3. Like the marital communications privilege, the testimonial
privilege is construed narrowly to prevent fraud. Courts are reluctant
to apply the privilege when it appears that the marriage was entered
into solely for the purpose of preventing testimony. As stated by the
Supreme Court in Lutwak v. United States, 344 U.S. 604, 614-615
(1953):
When the good faith of the marital relation is pertinent and it is made to appear . . . that
the relationship was entered into with no intention of the parties to live together as
husband and wife but only for the purpose of using the marriage ceremony in a scheme
to defraud, the ostensible spouses are competent to testify against each other.

However, the “sham marriage” doctrine is not easy to apply. See, for
example, In re Grand Jury Subpoena, 884 F. Supp. 188 (D. Md.
1995) (holding that, while the marriage may have been primarily
intended to prevent adverse testimony from one spouse against the
other, there was evidence to suggest the marriage was in fact
genuine); and Glover v. State, 816 N.E.2d 1197 (Ind. App. 2004)
(refusing to recognize fraudulent marriage exception, as state's
statutory scheme does not permit the exception).
Most federal courts hold that the privilege applies only to testimony
by the spouse and does not block admission of out-of court
statements when such statements are admissible under the hearsay
rule. In United States v. Chapman, 866 F.2d 1326 (11th Cir. 1986), a
bank robbery case, the out-of-court statements made by the
defendant's spouse were held to be admissible hearsay. The
requirement of unavailability was met because the out-of-court
declarant was unavailable in that she refused, on the basis of her
marital privilege, to give any substantive testimony. The court also
held that the out-of-court statements bore sufficient indicia of
reliability to be admissible. In holding the marital testimonial privilege
to be inapplicable, the court relied on the Supreme Court's statement
in Trammel that nothing in the law of privileges “prevents the
Government from enlisting one spouse to give information
concerning the other or to aid in the other's apprehension. It is only
the spouse's testimony in the courtroom that is prohibited.” Id. at
1333. In United States v. James, 128 F. Supp. 2d 291 (D. Md. 2001),
the district court upheld the admissibility of the defendant's wife's call
to the 911 operator, stating that her husband had assaulted her, as
an excited utterance.
State courts, however, are split on whether the privilege prevents
admission of out-of-court statements. The Ohio Supreme Court
found that a recording between a criminal defendant and his or her
spouse is admissible despite the testimonial

968

privilege, because the statute establishing the privilege precludes

only “spouse's testimony,” not “communication through other
means.” Ohio v. Perez, 920 N.E.2d 104 (Ohio 2009). Michigan,
Minnesota, Nevada, North Dakota, and Arkansas follow the same
general approach, while Illinois and North Carolina have extended
the privilege to outside recordings.
4. The marital privileges may attach to common law marriages,
provided that the law of the domicile state recognizes them and that
the marriage itself is legally valid under state law. See United States
v. Lustig, 555 F.2d 737, 747-748 (9th Cir. 1978), (both of the marital
privileges were lost because Alaska did not recognize common law
marriages). However, neither federal nor state courts have extended
the protection of the privilege to unmarried cohabitants. See, e.g.,
United States v. Acker, 52 F.3d 509 (4th Cir. 1995) (finding no valid
marriage where the heterosexual couple involved had been living
together for 25 years in states that do not recognize common law
marriage).
b. Exceptions
It is well established that the marital testimonial privilege does not
apply when one spouse is prosecuted for a crime against the person
or property of the other. Some states extend this exception to
charges of crimes committed against family members or cohabitants.
For example, Cal. Evid. Code §972(e)(1) (West 1995) provides:
A married person does not have a privilege under this article in: (e) A criminal
proceeding in which one spouse is charged with: (1) A crime against the person or
property of the other spouse or of a child, parent, relative, or cohabitant of either,
whether committed before or during marriage.
In People v. Bogle, 41 Cal. App. 4th 770, 782 (1995), the court said
that “cohabitant” should be interpreted broadly, because “individuals
are uniquely vulnerable in their domestic environment.” In Bogle, the
court applied this exception to the privilege and upheld the wife's
ability to testify against her husband in his trial for murder of the
wealthy couple with whom he lived as a boarder, even though he
was not related to them. More commonly, of course, the exception is
applied where the defendant is charged with a crime against his
spouse or against their children. If the crime is one of domestic
violence, then the witness spouse can be compelled to testify
despite her assertion of the privilege. But even where this exception
exists, “married women [are left] unprotected by the legal system
because of very narrow and uninformed views of what constitutes
spousal violence.” Malinda L. Seymore, Isn't It a Crime: Feminist
Perspectives on Spousal Immunity and Spousal Violence, 90 Nw. U.
L. Rev. 1032, 1036 (1996).
There is a split among federal circuits as to whether there is a “joint
participants in crime” exception to the testimonial privilege. Subject
to the Fifth Amendment privilege against self-incrimination, some
courts require the witness spouse to testify when the spouses have
engaged in joint illegal behavior. United States v. Clark, 712 F.2d 299
(7th Cir. 1983). Others still apply the privilege, reasoning that the
policy of Trammel to protect the marriage is not outweighed and that
compelled testimony would “undermine the marriage precisely in the
manner that the privilege is

969

designed to prevent.” Appeal of Malfitano, 633 F.2d 276, 279 (3d

Cir. 1980). See also In re Grand Jury Subpoena United States, 755
F.2d 1022 (2d Cir. 1985), vacated on other grounds sub nom. United
States v. Koecher, 475 U.S. 133 (1986) (“In light of [the testimonial
privilege's] existence since the early days of the common law and of
the importance of the interests which the marital privilege serves, we
would leave the creation of exceptions to the Supreme Court or to
Congress.”); United States v. Ramos-Oseguera, 120 F.3d 1028 (9th
Cir. 1997) (citing language in Trammel to find no exception, despite
acknowledging an exception to the marital communication privilege
when the communication relates to present or future crimes in which
both spouses are participants).
The marital testimonial privilege also does not apply to
prosecutions under the Mann Act, where a wife is transported across
state lines by her husband for the purpose of prostitution. Wyatt v.
United States, 362 U.S. 525, 530 (1960).

KEY POINTS
1. Two privileges relate to the marital relationship. One
immunizes confidential communications made during the
marriage from disclosure; it applies both in civil and criminal
cases. The other permits a spouse not to testify (or permits
the accused spouse from stopping the other spouse from
testifying) against the accused spouse in a criminal case.
2. The confidential communications privilege survives the
marriage; the testimonial privilege does not.
3. Neither privilege applies in litigation between the spouses, or
involving accusations of criminal acts of one spouse against
the other.
 PROBLEMS
12.20. Ellen Graves has been subpoenaed to provide a handwriting
exemplar and fingerprints to the grand jury, which is
investigating the filing of false joint income tax returns by Ms.
Graves and her husband. Ms. Graves moves to quash the
subpoena on the ground that compliance would violate her
privilege not to testify against her husband. What result?
12.21. Ms. Witness's husband is the target of a grand jury
investigation into illegal drug trafficking. Ms. Witness has been
summoned to appear before the grand jury to testify about her
own bank accounts and financial history both before and after
they were married. The government's purpose is to determine
whether her accounts were used for money laundering from
illegal drug sales. Ms. Witness refuses to testify and seeks to
invoke the marital testimonial privilege. Should she be
compelled to testify? What if the government asserts that
since its questions are about her personal financial history,
they should be asked, answered, and examined on a
question-by-question basis to determine whether the
information elicited is “adverse” to the husband?

970

E. THE PHYSICIAN-PATIENT AND PSYCHOTHERAPIST-PATIENT

PRIVILEGES

Neither the physician-patient privilege nor the psychotherapist-

patient privilege existed at common law. The physician-patient
privilege was first recognized in the United States by an 1828 New
York statute that granted a testimonial privilege to physician-patient
communications. In contrast, the psychotherapeutic privileges did
not gain approval until the 1950s, when the fields of psychology and
psychotherapy were first accorded professional recognition. The
traditional justification for both privileges is the standard utilitarian
argument that the privilege is necessary to encourage the patient to
disclose information for the proper diagnosis and treatment of illness.
By protecting the patient from the disclosure of potentially
incriminating or liability-related information in court, the privilege
helps to ensure the provision of effective medical or therapeutic
treatment.
The utilitarian justification for the physician-patient privilege has
been roundly criticized on the ground that patients will communicate
all information that may aid in proper diagnosis and treatment
whether or not a privilege exists. In contrast, the psychotherapist-
patient privilege has received approval by both courts and
commentators. Advocates argue that some form of protection is
necessary in the psychotherapist-patient context because the
communications usually involve matters that a patient regards as
extremely personal.
We examine these two privileges in the next two subsections.

1. The Physician-Patient Privilege

The Proposed Federal Rules of Evidence did not recognize a
physician-patient privilege. The Advisory Committee's Note to
Proposed FRE 504 observed:
While many states have by statute created the [physician-patient] privilege, the
exceptions which have been found necessary in order to obtain information required by
the public interest or to avoid fraud are so numerous as to leave little if any basis for the
privilege. . . . California, for example, excepts cases in which the patient puts his
condition in issue, all criminal proceedings, will and similar contests, malpractice cases,
and disciplinary proceedings. . . . [Cal. Evid. Code §§990-1007.]

To this should be added the point noted above that the behavioral
incentives typically are not needed in this context. For both reasons,
most federal courts have rejected a physician-patient privilege. See
United States v. Bercier, 848 F.2d 917, 920 (8th Cir. 1988)
(“[b]ecause no physician privilege existed at common law . . . federal
courts do not recognize the physician-patient privilege” . . . under
federal common law); Patterson v. Caterpillar, 70 F.3d 503, 506 (7th
Cir. 1995) (stating unequivocally that federal common law does not
recognize this privilege).
Over three-quarters of the states have enacted statutes
recognizing a physician-patient privilege. Most state statutes refer
generally to “physicians” or “physicians or surgeons” to denote the
type of health care providers covered by the statute. The Arizona
physician-patient privilege statute is typical:

971
In a civil action a physician or surgeon shall not, without the consent of his patient . . .
be examined as to any communication made by his patient with reference to any
physical or mental disease or disorder . . . or as to any such knowledge obtained by
personal examination of the patient. [Ariz. Rev. Stat. Ann. §12-2235 (West 2003).]
Some state statutes, however, are more expansive, such as the
Minnesota privilege statute which includes “dentists, chiropractors,
and registered nurses” within the protection of the privilege. Minn.
Stat. Ann. §§595.02(1)(d), (g) (West 2000).
Typically, the patient is the holder, and the privilege covers
confidential communications made for the purpose of, or in
connection with, obtaining medical assistance or advice. Such
information could be obtained through conversation with the patient
or through the physician's physical examination. The privilege is also
sometimes extended to “[a] record of identity, diagnosis, evaluation,
or treatment of a patient by a physician that is created or maintained
by a physician.” Tex. Occ. Code §159.002(b) (Vernon 2004). Similar
to the attorney-client privilege, the facts that a patient has consulted
a physician, has been treated by him, and the number and dates of
the visits, are not covered by the privilege. In some states, the
physician-patient privilege applies only to judicial proceedings and
does not prohibit defense counsel from engaging in ex parte
communications with plaintiff's physicians. Steinberg v. Jensen, 534
N.W.2d 361, 370 (Wis. 1995).
Waiver occurs in the normal manner through disclosure or putting
physical condition into issue in litigation. Carson v. Fine, 867 P.2d
610 (Wash. 1994) (privilege waived as to fact and opinion
information held by all physicians when plaintiff filed malpractice
action). A patient may expressly waive his privilege by authorizing
the release of medical information. A patient may also impliedly
waive the privilege by either voluntarily disclosing such medical
information to an outside party or through partial disclosure in a
judicial proceeding. In Ziegler v. Department of Fire, 426 So. 2d 311,
313 (La. Ct. App. 1983), a patient's failure to assert the privilege in
objection to a physician's testimony at trial resulted in a waiver for all
later trials.
The presence of third persons may destroy the required
confidentiality of a physician-patient communication. However, if the
third person is a necessary participant to the consultation, such as a
nurse acting under the direction of the physician, the privilege may
remain intact. Sims v. Charlotte Liberty Mut. Ins. Co., 125 S.E.2d
326, 331 (N.C. 1962) (records made by “nurses, technicians, and
others” may be included under the privilege statute if they are acting
under a physician or surgeon).
In addition, state statutes commonly require physicians to report
certain information related to public health and safety, such as
information regarding child abuse, venereal disease, and gunshot
injury. In the absence of the statutes, this information would
generally be protected by the privilege. In most instances, the
reporting systems expressly prohibit public release of the information
obtained.
The Health Insurance Portability and Accountability Act (HIPAA)
has created a uniform, but defeasible, doctor-patient privilege that
applies nationwide. Under the regulations issued by the Secretary of
Health and Human Services pursuant to HIPAA, holders of patient-
related medical information are prohibited from disclosing it. 45
C.F.R. §160.103. This prohibition is subject to an exception that
permits disclosure of protected information “in the course of any
judicial or administrative

972

proceeding.” 45 C.F.R. §164.512(e)(1). Such disclosure can take

place only pursuant to a court order and its conditions. 45 C.F.R.
§164.512(e)(1)(i)-(ii). This order should protect the information
against unnecessary disclosure. While exercising their gatekeeping
role, courts should also juxtapose the information's value against the
harm to the patient's privacy interest. For a recent decision
explaining this statutory framework, see Caldwell v. Chauvin, 464
S.W.3d 139, (Ky. 2015). This framework sets up minimal protection
for patients' medical information. State statutes and common law
rules can expand that protection but not diminish it. 45 C.F.R.
§160.203(b).

2. The Psychotherapist-Patient Privilege

a. Jaffee v. Redmond
In 1996, the U.S. Supreme Court established the psychotherapist-
patient privilege under FRE 501 in the case of Jaffee v. Redmond,
518 U.S. 1 (1996). This privilege had been included as Rule 504 in
the Proposed Federal Rules of Evidence, and each state has a
version of the privilege. The existence of this privilege is thus well
established, but it is by no means free from controversy; nor is its
scope entirely clear. Our study of this privilege begins with Jaffee,
which thoroughly canvasses the then-existing law and the relevant
policy considerations.

JAFFEE V. REDMOND

518 U.S. 1 (1996)

Justice S delivered the opinion of the Court.
After a traumatic incident in which she shot and killed a man, a
police officer received extensive counseling from a licensed clinical
social worker. The question we address is whether statements the
officer made to her therapist during the counseling sessions are
protected from compelled disclosure in a federal civil action brought
by the family of the deceased. Stated otherwise, the question is
whether it is appropriate for federal courts to recognize a
“psychotherapist privilege” under Rule 501 of the Federal Rules of
Evidence.
I
Petitioner is the administrator of the estate of Ricky Allen.
Respondents are Mary Lu Redmond, a former police officer, and the
Village of Hoffman Estates, Illinois, her employer during the time that
she served on the police force. Petitioner commenced this action
against respondents after Redmond shot and killed Allen while on
patrol duty. On June 27, 1991, Redmond was the first officer to
respond to a “fight in progress” call at an apartment complex. As she
arrived at the scene, two of Allen's sisters ran toward her squad car,
waving their arms and shouting that there had been a stabbing in
one of the apartments. Redmond testified at trial that she relayed
this information to her dispatcher and requested an ambulance. She
then exited her car

973

and walked toward the apartment building. Before Redmond reached

the building, several men ran out, one waving a pipe. When the men
ignored her order to get on the ground, Redmond drew her service
revolver. Two other men then burst out of the building, one, Ricky
Allen, chasing the other. According to Redmond, Allen was
brandishing a butcher knife and disregarded her repeated
commands to drop the weapon. Redmond shot Allen when she
believed he was about to stab the man he was chasing. Allen died at
the scene. Redmond testified that before other officers arrived to
provide support, “people came pouring out of the buildings,” and a
threatening confrontation between her and the crowd ensued.
Petitioner filed suit in Federal District Court alleging that Redmond
had violated Allen's constitutional rights by using excessive force
during the encounter at the apartment complex. At trial, petitioner
presented testimony from members of Allen's family that conflicted
with Redmond's version of the incident in several important respects.
They testified, for example, that Redmond drew her gun before
exiting her squad car and that Allen was unarmed when he emerged
from the apartment building. During pretrial discovery petitioner
learned that after the shooting Redmond had participated in about 50
counseling sessions with Karen Beyer, a clinical social worker
licensed by the State of Illinois and employed at that time by the
Village of Hoffman Estates. Petitioner sought access to Beyer's
notes concerning the sessions for use in cross-examining Redmond.
Respondents vigorously resisted the discovery. They asserted that
the contents of the conversations between Beyer and Redmond
were protected against involuntary disclosure by a psychotherapist-
patient privilege. The district judge rejected this argument. Neither
Beyer nor Redmond, however, complied with his order to disclose
the contents of Beyer's notes. At depositions and on the witness
stand both either refused to answer certain questions or professed
an inability to recall details of their conversations. In his instructions
at the end of the trial, the judge advised the jury that the refusal to
turn over Beyer's notes had no “legal justification” and that the jury
could therefore presume that the contents of the notes would have
been unfavorable to respondents. The jury awarded petitioner
$45,000 on the federal claim and $500,000 on her state-law claim.
The Court of Appeals for the Seventh Circuit reversed and remanded
for a new trial. Addressing the issue for the first time, the court
concluded that “reason and experience,” the touchstones for
acceptance of a privilege under Rule 501 of the Federal Rules of
Evidence, compelled recognition of a psychotherapist-patient
privilege. . . .
The Court of Appeals qualified its recognition of the privilege by
stating that it would not apply if “in the interests of justice, the
evidentiary need for the disclosure of the contents of a patient's
counseling sessions outweighs that patient's privacy interests.” . . .
[T]he court concluded that the trial court had erred by refusing to
afford protection to the confidential communications between
Redmond and Beyer.
The United States courts of appeals do not uniformly agree that the
federal courts should recognize a psychotherapist privilege under
Rule 501.
 II
. . . The common-law principles underlying the recognition of
testimonial privileges can be stated simply. “ 'For more than three
centuries it has now been recognized as a

974

fundamental maxim that the public . . . has a right to every man's

evidence. When we come to examine the various claims of
exemption, we start with the primary assumption that there is a
general duty to give what testimony one is capable of giving, and
that any exemptions which may exist are distinctly exceptional, being
so many derogations from a positive general rule.' ” United States v.
Bryan, 339 U. S. 323, 331 (1950) (quoting 8 J. Wigmore, Evidence
§2192, p. 64 (3d ed. 1940)).65 See also United States v. Nixon, 418
U. S. 683, 709 (1974). Exceptions from the general rule disfavoring
testimonial privileges may be justified, however, by a “ 'public good
transcending the normally predominant principle of utilizing all
rational means for ascertaining the truth.' ” Trammel, 445 U.S., at 50.
Guided by these principles, the question we address today is
whether a privilege protecting confidential communications between
a psychotherapist and her patient “promotes sufficiently important
interests to outweigh the need for probative evidence. . . .” Both
“reason and experience” persuade us that it does.
III
Like the spousal and attorney-client privileges, the psychotherapist-
patient privilege is “rooted in the imperative need for confidence and
trust.” Trammel, 445 U.S., at 51. Treatment by a physician for
physical ailments can often proceed successfully on the basis of a
physical examination, objective information supplied by the patient,
and the results of diagnostic tests. Effective psychotherapy, by
contrast, depends upon an atmosphere of confidence and trust in
which the patient is willing to make a frank and complete disclosure
of facts, emotions, memories, and fears. Because of the sensitive
nature of the problems for which individuals consult
psychotherapists, disclosure of confidential communications made
during counseling sessions may cause embarrassment or disgrace.
For this reason, the mere possibility of disclosure may impede
development of the confidential relationship necessary for successful
treatment.66 As the Judicial Conference Advisory Committee
observed in 1972 when it recommended that Congress recognize a
psychotherapist privilege as part of the Proposed Federal Rules of
Evidence, a psychiatrist's ability to help her patients:
“is completely dependent upon [the patients'] willingness and ability to talk freely. This
makes it difficult if not impossible for [a psychiatrist] to function without being able to
assure . . . patients of confidentiality and, indeed, privileged communication. Where
there may be exceptions to this general rule . . . , there is wide agreement that
confidentiality is a sine qua non for successful psychiatric treatment.” Advisory
Committee's Notes to Proposed Rules, 56 F.R.D. 183, 242 (1972) (quoting Group for
Advancement of Psychiatry, Report No. 45, Confidentiality and Privileged
Communication in the Practice of Psychiatry 92 (June 1960)).

975

By protecting confidential communications between a

psychotherapist and her patient from involuntary disclosure, the
proposed privilege thus serves important private interests.
Our cases make clear that an asserted privilege must also “serve
public ends.” . . . The psychotherapist privilege serves the public
interest by facilitating the provision of appropriate treatment for
individuals suffering the effects of a mental or emotional problem.
The mental health of our citizenry, no less than its physical health, is
a public good of transcendent importance.67 In contrast to the
significant public and private interests supporting recognition of the
privilege, the likely evidentiary benefit that would result from the
denial of the privilege is modest. If the privilege were rejected,
confidential conversations between psychotherapists and their
patients would surely be chilled, particularly when it is obvious that
the circumstances that give rise to the need for treatment will
probably result in litigation. Without a privilege, much of the desirable
evidence to which litigants such as petitioner seek access—for
example, admissions against interest by a party—is unlikely to come
into being. This unspoken “evidence” will therefore serve no greater
truth-seeking function than if it had been spoken and privileged.
That it is appropriate for the federal courts to recognize a
psychotherapist privilege under Rule 501 is confirmed by the fact
that all 50 States and the District of Columbia have enacted into law
some form of psychotherapist privilege. We have previously
observed that the policy decisions of the States bear on the question
whether federal courts should recognize a new privilege or amend
the coverage of an existing one. See Trammel, 445 U.S., at 48-50. . .
. Because state legislatures are fully aware of the need to protect the
integrity of the factfinding functions of their courts, the existence of a
consensus among the States indicates that “reason and experience”
support recognition of the privilege. In addition, given the importance
of the patient's understanding that her communications with her
therapist will not be publicly disclosed, any State's promise of
confidentiality would have little value if the patient were aware that
the privilege would not be honored in a federal court.68 Denial of the
federal privilege therefore would frustrate the purposes of the state
legislation that was enacted to foster these confidential
communications.
It is of no consequence that recognition of the privilege in the vast
majority of States is the product of legislative action rather than
judicial decision. Although common-law rulings may once have been
the primary source of new developments in federal privilege law, that
is no longer the case. In Funk v. United States, 290 U.S. 371 (1933),
we recognized that it is appropriate to treat a consistent body of
policy determinations

976

by state legislatures as reflecting both “reason” and “experience.”

That rule is properly respectful of the States and at the same time
reflects the fact that once a state legislature has enacted a privilege
there is no longer an opportunity for common-law creation of the
protection. . . .69 The uniform judgment of the States is reinforced by
the fact that a psychotherapist privilege was among the nine specific
privileges recommended by the Advisory Committee in its proposed
privilege rules. . . . In rejecting the proposed draft that had
specifically identified each privilege rule and substituting the present
more open-ended Rule 501, the Senate Judiciary Committee
explicitly stated that its action “should not be understood as
disapproving any recognition of a psychiatrist-patient . . . privilege
contained in the [proposed] rules.” Because we agree with the
judgment of the state legislatures and the Advisory Committee that a
psychotherapist-patient privilege will serve a “public good
transcending the normally predominant principle of utilizing all
rational means for ascertaining truth,” Trammel, 445 U.S., at 50, we
hold that confidential communications between a licensed
psychotherapist and her patients in the course of diagnosis or
treatment are protected from compelled disclosure under Rule 501 of
the Federal Rules of Evidence.70
IV
All agree that a psychotherapist privilege covers confidential
communications made to licensed psychiatrists and psychologists.
We have no hesitation in concluding in this case that the federal
privilege should also extend to confidential communications made to
licensed social workers in the course of psychotherapy. The reasons
for recognizing a privilege for treatment by psychiatrists and
psychologists apply with equal force to treatment by a clinical social
worker such as Karen Beyer.71 Today, social workers provide a
significant amount of mental health treatment. Their clients often
include the poor and those of modest means who could not afford
the assistance of

977

a psychiatrist or psychologist, but whose counseling sessions serve

the same public goals. Perhaps in recognition of these
circumstances, the vast majority of States explicitly extend a
testimonial privilege to licensed social workers. We therefore agree
with the Court of Appeals that “drawing a distinction between the
counseling provided by costly psychotherapists and the counseling
provided by more readily accessible social workers serves no
discernible public purpose.” We part company with the Court of
Appeals on a separate point. We reject the balancing component of
the privilege implemented by that court and a small number of
States. Making the promise of confidentiality contingent upon a trial
judge's later evaluation of the relative importance of the patient's
interest in privacy and the evidentiary need for disclosure would
eviscerate the effectiveness of the privilege. As we explained in
Upjohn, if the purpose of the privilege is to be served, the
participants in the confidential conversation “must be able to predict
with some degree of certainty whether particular discussions will be
protected. An uncertain privilege, or one which purports to be certain
but results in widely varying applications by the courts, is little better
than no privilege at all.” These considerations are all that is
necessary for decision of this case. A rule that authorizes the
recognition of new privileges on a case-by-case basis makes it
appropriate to define the details of new privileges in a like manner.
Because this is the first case in which we have recognized a
psychotherapist privilege, it is neither necessary nor feasible to
delineate its full contours in a way that would “govern all conceivable
future questions in this area.”72
V
The conversations between Officer Redmond and Karen Beyer and
the notes taken during their counseling sessions are protected from
compelled disclosure under Rule 501 of the Federal Rules of
Evidence. The judgment of the Court of Appeals is affirmed.
It is so ordered.
Justice S , with whom T C J joins as to Part III,
dissenting.
The Court has discussed at some length the benefit that will be
purchased by creation of the evidentiary privilege in this case: the
encouragement of psychoanalytic counseling. It has not mentioned
the purchase price: occasional injustice. That is the cost of every rule
which excludes reliable and probative evidence—or at least every
one categorical enough to achieve its announced policy objective. In
the case of some of these rules, such as the one excluding
confessions that have not been properly “Mirandized,” see Miranda
v. Arizona, 384 U.S. 436 (1966), the victim of the injustice is always
the impersonal State or the faceless “public at large.” For the rule
proposed here, the victim is more likely to be some individual who is
prevented from proving a valid claim—or (worse still) prevented from
establishing a valid defense. The latter is particularly unpalatable for
those who love justice, because it causes the courts of law not
merely to let stand a wrong, but to become themselves the
instruments of wrong.

978

In the past, this Court has well understood that the particular value
the courts are distinctively charged with preserving—justice—is
severely harmed by contravention of “the fundamental principle that
“the public . . . has a right to every man's evidence.” . . . The Court
today ignores this traditional judicial preference for the truth, and
ends up creating a privilege that is new, vast, and ill-defined. I
respectfully dissent.
I
The case before us involves confidential communications made by a
police officer to a state-licensed clinical social worker in the course of
psychotherapeutic counseling. Before proceeding to a legal analysis
of the case, I must observe that the Court makes its task deceptively
simple by the manner in which it proceeds. It begins by
characterizing the issue as “whether it is appropriate for federal
courts to recognize a 'psychotherapist privilege,' ” and devotes
almost all of its opinion to that question. Having answered that
question (to its satisfaction) in the affirmative, it then devotes less
than a page of text to answering in the affirmative the small
remaining question whether “the federal privilege should also extend
to confidential communications made to licensed social workers in
the course of psychotherapy.” Of course the prototypical evidentiary
privilege analogous to the one asserted here—the lawyer-client
privilege—is not identified by the broad area of advice-giving
practiced by the person to whom the privileged communication is
given, but rather by the professional status of that person. Hence, it
seems a long step from a lawyer-client privilege to a tax advisor-
client or accountant-client privilege. But if one recharacterizes it as a
“legal advisor” privilege, the extension seems like the most natural
thing in the world. That is the illusion the Court has produced here: It
first frames an overly general question (“Should there be a
psychotherapist privilege?”) that can be answered in the negative
only by excluding from protection office consultations with
professional psychiatrists (i.e., doctors) and clinical psychologists.
And then, having answered that in the affirmative, it comes to the
only question that the facts of this case present (“Should there be a
social worker-client privilege with regard to psychotherapeutic
counseling?”) with the answer seemingly a foregone conclusion. At
that point, to conclude against the privilege one must subscribe to
the difficult proposition, “Yes, there is a psychotherapist privilege, but
not if the psychotherapist is a social worker.” Relegating the question
actually posed by this case to an afterthought makes the impossible
possible in a number of wonderful ways. For example, it enables the
Court to treat the Proposed Federal Rules of Evidence developed in
1972 by the Judicial Conference Advisory Committee as strong
support for its holding, whereas they in fact counsel clearly and
directly against it. The Committee did indeed recommend a
“psychotherapist privilege” of sorts; but more precisely, and more
relevantly, it recommended a privilege for psychotherapy conducted
by “a person authorized to practice medicine” or “a person licensed
or certified as a psychologist,” Proposed Rule of Evidence 504, 56
F.R.D. 183, 240 (1972), which is to say that it recommended against
the privilege at issue here. That condemnation is obscured, and
even converted into an endorsement, by pushing a “psychotherapist
privilege” into the center ring. The Proposed Rule figures prominently
in the Court's explanation of why that privilege deserves
979

recognition, and is ignored in the single page devoted to the

sideshow which happens to be the issue presented for decision.
This is the most egregious and readily explainable example of how
the Court's misdirection of its analysis makes the difficult seem easy;
others will become apparent when I give the social-worker question
the fuller consideration it deserves. My initial point, however, is that
the Court's very methodology—giving serious consideration only to
the more general, and much easier, question—is in violation of our
duty to proceed cautiously when erecting barriers between us and
the truth.
II
To say that the Court devotes the bulk of its opinion to the much
easier question of psychotherapist-patient privilege is not to say that
its answer to that question is convincing. At bottom, the Court's
decision to recognize such a privilege is based on its view that
“successful [psychotherapeutic] treatment” serves “important private
interests” (namely those of patients undergoing psychotherapy) as
well as the “public good” of “the mental health of our citizenry.” I have
no quarrel with these premises. Effective psychotherapy undoubtedly
is beneficial to individuals with mental problems, and surely serves
some larger social interest in maintaining a mentally stable society.
But merely mentioning these values does not answer the critical
question: are they of such importance, and is the contribution of
psychotherapy to them so distinctive, and is the application of normal
evidentiary rules so destructive to psychotherapy, as to justify
making our federal courts occasional instruments of injustice? On
that central question I find the Court's analysis insufficiently
convincing to satisfy the high standard we have set for rules that are
in derogation of the search for truth.
When is it, one must wonder, that the psychotherapist came to play
such an indispensable role in the maintenance of the citizenry's
mental health? For most of history, men and women have worked
out their difficulties by talking to, inter alios, parents, siblings, best
friends and bartenders—none of whom was awarded a privilege
against testifying in court. Ask the average citizen: Would your
mental health be more significantly impaired by preventing you from
seeing a psychotherapist, or by preventing you from getting advice
from your mom? I have little doubt what the answer would be. Yet
there is no mother-child privilege. How likely is it that a person will be
deterred from seeking psychological counseling, or from being
completely truthful in the course of such counseling, because of fear
of later disclosure in litigation? And even more pertinent to today's
decision, to what extent will the evidentiary privilege reduce that
deterrent? The Court does not try to answer the first of these
questions; and it cannot possibly have any notion of what the answer
is to the second, since that depends entirely upon the scope of the
privilege, which the Court amazingly finds it “neither necessary nor
feasible to delineate,” If, for example, the psychotherapist can give
the patient no more assurance than “a court will not be able to make
me disclose what you tell me, unless you tell me about a harmful
act,” I doubt whether there would be much benefit from the privilege
at all. That is not a fanciful example, at least with respect to
extension of the psychotherapist privilege to social workers.
Even where it is certain that absence of the psychotherapist
privilege will inhibit disclosure of the information, it is not clear to me
that that is an unacceptable state

980

of affairs. Let us assume the very worst in the circumstances of the

present case: that to be truthful about what was troubling her, the
police officer who sought counseling would have to confess that she
shot without reason, and wounded an innocent man. If (again to
assume the worst) such an act constituted the crime of negligent
wounding under Illinois law, the officer would of course have the
absolute right not to admit that she shot without reason in criminal
court. But I see no reason why she should be enabled both not to
admit it in criminal court (as a good citizen should), and to get the
benefits of psychotherapy by admitting it to a therapist who cannot
tell anyone else. And even less reason why she should be enabled
to deny her guilt in the criminal trial—or in a civil trial for negligence
—while yet obtaining the benefits of psychotherapy by confessing
guilt to a social worker who cannot testify. It seems to me entirely fair
to say that if she wishes the benefits of telling the truth she must also
accept the adverse consequences. To be sure, in most cases the
statements to the psychotherapist will be only marginally relevant,
and one of the purposes of the privilege (though not one relied upon
by the Court) may be simply to spare patients needless intrusion
upon their privacy, and to spare psychotherapists needless
expenditure of their time in deposition and trial. But surely this can
be achieved by means short of excluding even evidence that is of
the most direct and conclusive effect. . . .
The Court suggests one last policy justification: since
psychotherapist privilege statutes exist in all the States, the failure to
recognize a privilege in federal courts “would frustrate the purposes
of the state legislation that was enacted to foster these confidential
communications.” . . . Since, as I shall discuss, state policies
regarding the psychotherapist privilege vary considerably from State
to State, no uniform federal policy can possibly honor most of them.
If furtherance of state policies is the name of the game, rules of
privilege in federal courts should vary from State to State, a la Erie.
The Court's failure to put forward a convincing justification of its
own could perhaps be excused if it were relying upon the unanimous
conclusion of state courts in the reasoned development of their
common law. It cannot do that, since no State has such a privilege
apart from legislation. . . . The Court concedes that there is
“divergence among the States concerning the types of therapy
relationships protected and the exceptions recognized.” To rest a
newly announced federal common-law psychotherapist privilege,
assertable from this day forward in all federal courts, upon “the
States' unanimous judgment that some form of psychotherapist
privilege is appropriate,” is rather like announcing a new,
immediately applicable, federal common law of torts, based upon the
States' “unanimous judgment” that some form of tort law is
appropriate. In the one case as in the other, the state laws vary to
such a degree that the parties and lower federal judges confronted
by the new “common law” have barely a clue as to what its content
might be.
III
Turning from the general question that was not involved in this case
to the specific one that is: The Court's conclusion that a social-
worker psychotherapeutic privilege deserves recognition is even less
persuasive. In approaching this question, the fact that five of the
state legislatures that have seen fit to enact “some form” of
psychotherapist privilege have elected not to extend any form of
privilege to social workers, ought to

981

give one pause. So should the fact that the Judicial Conference
Advisory Committee was similarly discriminating in its conferral of
the proposed Rule 504 privilege. The Court, however, has “no
hesitation in concluding . . . that the federal privilege should also
extend” to social workers—and goes on to prove that by polishing off
the reasoned analysis with a topic sentence and two sentences of
discussion, as follows (omitting citations and nongermane footnote):
“The reasons for recognizing a privilege for treatment by psychiatrists and
psychologists apply with equal force to treatment by a clinical social worker such as
Karen Beyer.
Today, social workers provide a significant amount of mental health treatment. Their
clients often include the poor and those of modest means who could not afford the
assistance of a psychiatrist or psychologist, but whose counseling sessions serve the
same public goals.”
So much for the rule that privileges are to be narrowly construed.
Of course this brief analysis—like the earlier, more extensive,
discussion of the general psychotherapist privilege—contains no
explanation of why the psychotherapy provided by social workers is
a public good of such transcendent importance as to be purchased
at the price of occasional injustice. Moreover, it considers only the
respects in which social workers providing therapeutic services are
similar to licensed psychiatrists and psychologists; not a word about
the respects in which they are different. A licensed psychiatrist or
psychologist is an expert in psychotherapy—and that may suffice
(though I think it not so clear that this Court should make the
judgment) to justify the use of extraordinary means to encourage
counseling with him, as opposed to counseling with one's rabbi,
minister, family or friends. One must presume that a social worker
does not bring this greatly heightened degree of skill to bear, which
is alone a reason for not encouraging that consultation as
generously. Does a social worker bring to bear at least a significantly
heightened degree of skill—more than a minister or rabbi, for
example? I have no idea, and neither does the Court. The social
worker in the present case, Karen Beyer, was a “licensed clinical
social worker” in Illinois, a job title whose training requirements
consist of “master's degree in social work from an approved
program,” and “3,000 hours of satisfactory, supervised clinical
professional experience.” . . . But the rule the Court announces today
—like the Illinois evidentiary privilege which that rule purports to
respect,—is not limited to “licensed clinical social workers,” but
includes all “licensed social workers.” “Licensed social workers” may
also provide “mental health services” as described in §20/3(5), so
long as it is done under supervision of a licensed clinical social
worker. And the training requirement for a “licensed social worker”
consists of either (a) “a degree from a graduate program of social
work” approved by the State, or (b) “a degree in social work from an
undergraduate program” approved by the State, plus “3 years of
supervised professional experience.” With due respect, it does not
seem to me that any of this training is comparable in its rigor (or
indeed in the precision of its subject) to the training of the other
experts (lawyers) to whom this Court has accorded a privilege, or
even of the experts (psychiatrists and psychologists) to whom the
Advisory Committee and this Court proposed extension of a privilege
in 1972. Of course these are only Illinois' requirements for “social
workers.” Those of other States, for all we know, may be even less
demanding. Indeed, I am not even sure there is a nationally
accepted definition
982

of “social worker,” as there is of psychiatrist and psychologist. It

seems to me quite irresponsible to extend the so-called
“psychotherapist privilege” to all licensed social workers, nationwide,
without exploring these issues.
Another critical distinction between psychiatrists and psychologists,
on the one hand, and social workers, on the other, is that the former
professionals, in their consultations with patients, do nothing but
psychotherapy. Social workers, on the other hand, interview people
for a multitude of reasons. The Illinois definition of “licensed social
worker,” for example, is as follows:
“Licensed social worker” means a person who holds a license authorizing the practice
of social work, which includes social services to individuals, groups or communities in
any one or more of the fields of social casework, social group work, community
organization for social welfare, social work research, social welfare administration or
social work education.

Thus, in applying the “social worker” variant of the “psychotherapist”

privilege, it will be necessary to determine whether the information
provided to the social worker was provided to him in his capacity as
a psychotherapist, or in his capacity as an administrator of social
welfare, a community organizer, etc. Worse still, if the privilege is to
have its desired effect (and is not to mislead the client), it will
presumably be necessary for the social caseworker to advise, as the
conversation with his welfare client proceeds, which portions are
privileged and which are not.
Having concluded its three sentences of reasoned analysis, the
Court then invokes, as it did when considering the psychotherapist
privilege, the “experience” of the States—once again an experience I
consider irrelevant (if not counter-indicative) because it consists
entirely of legislation rather than common-law decision. It says that
“the vast majority of States explicitly extend a testimonial privilege to
licensed social workers.” There are two elements of this impressive
statistic, however, that the Court does not reveal.
First—and utterly conclusive of the irrelevance of this supposed
consensus to the question before us—the majority of the States that
accord a privilege to social workers do not do so as a subpart of a
“psychotherapist” privilege. The privilege applies to all confidences
imparted to social workers, and not just those provided in the course
of psychotherapy. . . .
Second, the Court does not reveal the enormous degree of
disagreement among the States as to the scope of the privilege. . . .
In Illinois and Wisconsin, the social-worker privilege does not apply
when the confidential information pertains to homicide, and in the
District of Columbia when it pertains to any crime “inflicting injuries”
upon persons. In Missouri, the privilege is suspended as to
information that pertains to a criminal act, and in Texas when the
information is sought in any criminal prosecution. In Kansas and
Oklahoma, the privilege yields when the information pertains to
“violations of any law,” in Indiana, when it reveals a “serious harmful
act,” and in Delaware and Idaho, when it pertains to any “harmful
act.” In Oregon, a state-employed social worker like Karen Beyer
loses the privilege where her supervisor determines that her
testimony “is necessary in the performance of the duty of the social
worker as a public employee.” In South Carolina, a social worker is
forced to

983

disclose confidences “when required by statutory law or by court

order for good cause shown to the extent that the patient's care and
treatment or the nature and extent of his mental illness or emotional
condition are reasonably at issue in a proceeding.” The majority of
social-worker-privilege States declare the privilege inapplicable to
information relating to child abuse. And the States that do not fall into
any of the above categories provide exceptions for commitment
proceedings, for proceedings in which the patient relies on his
mental or emotional condition as an element of his claim or defense,
or for communications made in the course of a court-ordered
examination of the mental or emotional condition of the patient.
Thus, although the Court is technically correct that “the vast
majority of States explicitly extend a testimonial privilege to licensed
social workers,” that uniformity exists only at the most superficial
level. No State has adopted the privilege without restriction; the
nature of the restrictions varies enormously from jurisdiction to
jurisdiction; and ten States, I reiterate, effectively reject the privilege
entirely. It is fair to say that there is scant national consensus even
as to the propriety of a social-worker psychotherapist privilege, and
none whatever as to its appropriate scope. In other words, the state
laws to which the Court appeals for support demonstrate most
convincingly that adoption of a social-worker psychotherapist
privilege is a job for Congress. . . .
The question before us today is not whether there should be an
evidentiary privilege for social workers providing therapeutic
services. Perhaps there should. But the question before us is
whether (1) the need for that privilege is so clear, and (2) the
desirable contours of that privilege are so evident, that it is
appropriate for this Court to craft it in common-law fashion, under
Rule 501. Even if we were writing on a clean slate, I think the answer
to that question would be clear. But given our extensive precedent to
the effect that new privileges “in derogation of the search for truth”
“are not lightly created,” United States v. Nixon, 418 U.S., at 710, the
answer the Court gives today is inexplicable.
In its consideration of this case, the Court was the beneficiary of no
fewer than 14 amicus briefs supporting respondents, most of which
came from such organizations as the American Psychiatric
Association, the American Psychoanalytic Association, the American
Association of State Social Work Boards, the Employee Assistance
Professionals Association, Inc., the American Counseling
Association, and the National Association of Social Workers. Not a
single amicus brief was filed in support of petitioner. That is no
surprise. There is no self-interested organization out there devoted
to pursuit of the truth in the federal courts. The expectation is,
however, that this Court will have that interest prominently—indeed,
primarily—in mind. Today we have failed that expectation, and that
responsibility. It is no small matter to say that, in some cases, our
federal courts will be the tools of injustice rather than unearth the
truth where it is available to be found. The common law has
identified a few instances where that is tolerable. Perhaps Congress
may conclude that it is also tolerable for the purpose of encouraging
psychotherapy by social workers. But that conclusion assuredly does
not burst upon the mind with such clarity that a judgment in favor of
suppressing the truth ought to be pronounced by this honorable
Court. I respectfully dissent.

984

NOTES AND QUESTIONS

1. Who has the better of the argument, the majority or the dissent?
Could you have written a more persuasive majority opinion? Could
you have responded more effectively to the dissent?
2. One of the concerns is that embarrassing revelations are
frequently made in therapeutic sessions, and the Court is certainly
correct that the possibility of exposing such matters will be a
disincentive to their creation. Still, is the patient's knowledge that
there is a privilege necessary to effective mental health counseling?
To support the argument of necessity, the majority relied heavily on
amicus briefs filed by various organizations that promote
psychotherapy. Careful analysis of the studies relied on in these
briefs, however, shows that they “do not substantiate the empirical
claim that the typical patient is so concerned about the prospect of
litigation that the . . . privilege will significantly affect his or her
willingness to seek treatment or make necessary revelations to a
therapist.” Edward Imwinkelried, The Rivalry Between Truth and
Privilege: The Weakness of the Supreme Court's Reasoning in
Jaffee v. Redmond, 518 U.S. 1 (1996), 49 Hastings L.J. 969, 980
(1998). Should courts require that the utilitarian justification for
privileges be empirically valid? How can courts, as opposed to
legislatures, obtain empirical data?
3. Is the majority's policy analysis satisfactory? Reflect back on the
contingent claim theory about the attorney-client privilege. Like there,
isn't the question here the marginal gains and losses under two
different regimes: one with a privilege and one without a privilege?
And if that data is not available in some form (including judicial
experience), should a court create a privilege? In this respect, is the
legislative process fundamentally different from the judicial process?
4. The majority purports to establish an absolute privilege in Jaffee;
that is, it rejected the balancing component that the Seventh Circuit
Court of Appeals believed necessary to evaluate the patient's
interest in autonomy and privacy versus the evidentiary need for
disclosure. Yet, in its final footnote, the majority acknowledges that
“there are situations in which the privilege must give way” and cites
as an example the situation in which disclosure is the only means to
protect the patient or others from the serious threat of harm by the
patient. See page 977 n.72, supra. We discuss below the
circumstances under which federal courts have found that the
privilege must “give way.” See generally Christopher B. Mueller, The
Federal Psychotherapist-Patient Privilege After Jaffee: Truth and
Other Values in a Therapeutic Age, 49 Hastings L.J. 945 (1998).
b. Scope of the Privilege After Jaffee
In the years since Jaffee was decided, the scope of the
psychotherapist privilege has been tested in federal litigation. The
privilege has developed on a case-by-case basis, since the Court did
not spell out its full contours.
Who Is a Psychotherapist? The psychotherapist-patient privilege
in Proposed FRE 504 includes “a person authorized to practice
medicine”—in other words, all

985

physicians—and “a person licensed or certified as a psychologist”

within the definition of psychotherapist. Since Jaffee, courts have
also included licensed social workers and other mental health
workers within the privilege. For example, rape crisis counselors who
are not licensed but who have undergone special training and work
under the direct control and supervision of social workers or
psychotherapists were included in United States v. Lowe, 948 F.
Supp. 97, 99 (D. Mass. 1996), citing the fact that a majority of states
have a privilege for rape counseling communications. But see Jane
Student 1 v. Williams, 206 F.R.D. 306 (S.D. Ala. 2002) (holding that
the psychotherapist-patient privilege does not extend to unlicensed
professional counselors).
In Oleszko v. State Compensation Insurance Fund, 243 F.3d 1154,
1158 (9th Cir. 2001), the Ninth Circuit extended the privilege to
unlicensed counselors employed by an Employee Assistance
Program, which provides worksite assistance, including mental
health counseling. The court cited Jaffee in noting:
[T]he provision of mental health services has significantly changed in the last quarter
century. EAPs embody what may be viewed as a team approach to providing mental
health services. Thus, although EAP personnel do not engage in psychotherapy
themselves, they serve as a primary link between the troubled employee and
psychotherapeutic treatment. [Id.]
Some courts are also willing to consider licensed marriage, family
and child counselors as within the privilege. Speaker v. County of
San Bernadino, 82 F. Supp. 2d 1105, 1109 (C.D. Cal. 2000). In
Carman v. McDonnell Douglas Corp., 114 F.3d 790, 793 (8th Cir.
1997), however, the Eighth Circuit held that communications to an
ombudsman employed to resolve workplace disputes without
litigation were not protected by the psychotherapist privilege
because the assistance was limited to dealing with workplace
disputes, not mental health problems.
Communications. Communications falling within the privilege
must be made in the course of or for the purpose of obtaining mental
health services. For example, Proposed FRE 504 limits the
psychotherapist-patient privilege to confidential communications
“made [by the patient] for the purpose of diagnosis or treatment of
his mental or emotional condition, including drug addiction.” See Doe
v. Ensey, 220 F.R.D. 422, 425 (M.D. Pa. 2004). California's
psychotherapist-patient privilege is unusual in that it extends the
privilege to communications made “for the purpose of scientific
research on mental or emotional problems.” Cal. Evid. Code §1011.
Information that does not reveal the client's confidential
communications—such as identity of therapist and client, occurrence
of psychotherapy and dates of treatment—are not privileged. See,
e.g., Vinson v. Humana, Inc., 190 F.R.D. 624, 626-627 (M.D. Fla.
1999); and Merrill v. Waffle House, Inc., 2005 WL 928602 (N.D. Tex.
Feb. 5, 2005).
In situations where employees, such as police officers, are required
to undergo psychological evaluations regarding fitness for duty and
the results are disclosed to employers, it has been held that a
psychotherapist privilege is not established because there is no
treatment involved and there is no expectation of confidentiality.
Kemper v. Gray, 182 F.R.D. 597, 599 (E.D. Mo. 1998). But where
only a general conclusion is disclosed to the employer and the
employee has been assured of confidentiality, the

986

privilege has attached and prevents disclosure. See, e.g., Caver v.

City of Trenton, 192 F.R.D. 154, 162 (D.N.J. 2000).
Waiver. As with the physician-patient privilege, the patient is the
holder of the psychotherapist-patient privilege. Thus, the privilege
may be waived only by the patient or an authorized representative
on the patient's behalf. Parents can assert or waive the privilege on
behalf of their minor children. But courts may find that invocation of
the privilege may not be in the “best interests” of the child, for
example in custody disputes where there are allegations of child
abuse. Ellison v. Ellison, 919 P.2d 1, 8 (Okla. 1996).
Taking a broad view of waiver, some courts have held that a patient
impliedly waives the psychotherapist privilege by raising the patient's
mental condition as an element of the claim or defense; generally, by
making any claims for mental and emotional distress. See, e.g.,
Maday v. Public Libraries of Saginaw, 480 F.3d 815 (6th Cir. 2007)
(“[W]hen [plaintiff] put her emotional state at issue in the case, she
waived [the psychotherapist-patient privilege], and the records may
come in, subject to what appears to have been reasonable Rule 403
balancing by the district judge.”); Doe v. Oberweis Dairy, 456 F.3d
704 (7th Cir. 2006) (seeking damages for emotional distress places
psychological state in issue and waives privilege); Schoffstall v.
Henderson, 223 F.3d 818 (8th Cir. 2000) (same); Utah v. Worthen,
222 P.3d 1144 (Utah 2009) (hatred toward defendant was emotional
condition, represented an element of defense's theory, and triggered
exception in psychotherapist-patient privilege). A more restrictive
view of waiver, however, has been taken by other courts. This
narrower view requires that the privilege holder make an affirmative
use of the privileged material by calling the therapist as a witness or
putting specific communications at issue. See, e.g., Fitzgerald v.
Cassil, 216 F.R.D. 632 (N.D. Cal. 2003) (arguing that a narrow
exception is more consistent with Jaffee and a broad approach is not
necessary to achieve fairness for defendant); Vanderbilt v. Town of
Chilmark, 174 F.R.D. 225, 230 (D. Mass. 1997) (noting that privilege
is waived when substance of privileged communication is used by
the party invoking the privilege); United States v. Sturman, 1998 U.S.
Dist. LEXIS 3488 (S.D.N.Y. Mar. 9, 1998) (a criminal defendant's
intention to use psychiatric testimony to negate the government's
proof of specific intent does not waive the privilege prior to trial;
defendant bears no burden on the issue of intent and does not put
his mental condition “at issue” until he uses the testimony at trial).
A useful summary of this split in federal court opinions is contained
in Fritsch v. City of Chula Vista, 187 F.R.D. 614 (S.D. Cal. 1999). The
Supreme Court in Jaffee gave no guidance on this point. Indeed, the
Supreme Court rejected the balancing test proposed by the Seventh
Circuit Court of Appeals, but acknowledged that there would be
circumstances in which the privilege must give way. See page 977,
n.72, supra. Thus, both sides of this split of opinion are able to rely
on policies discussed in Jaffee to justify their positions. The narrow
view, requiring what amounts to actual waiver, protects the patient's
imperative need for confidentiality and prevents post hoc balancing
of the importance of privacy versus the evidentiary need for
disclosure. Id. at 630. The broader view has been justified by the
need for a fair discovery process when a patient “desires the jury to
compensate for damage to her emotional

987
 condition . . . defendant is entitled to explore the circumstance
[that] caused that injury.” Id. at 569.
Many decisions regarding the waiver of the privilege are made
during the discovery phase of trial when one party seeks to compel
production of medical records or to depose a psychotherapist. Some
courts require the party seeking discovery to show cause why the
“intrusion into the therapeutic relationship is the only possible means
to obtain relevant information” and to narrowly tailor discovery
requests to information directly relevant to the lawsuit. Vasconcellos
v. Cybex International, Inc., 962 F. Supp. 701, 709 (D. Md. 1997).
Due to the prevalence of group counseling sessions, several courts
have held that the psychotherapist-patient privilege is not waived
when statements are made by patients in the presence of others in
the group. The rationale is that the joint therapy comprises part of
the treatment. See, e.g., State v. Andring, 342 N.W.2d 128, 133-134
(Minn. 1984). However, the statements are not privileged in joint
litigation between the patients. Redding v. Virginia Mason Medical
Ctr., 878 P.2d 483 (Wash. Ct. App. 1994).
c. Exceptions to the Privilege
Although the Court in Jaffee rejected an outright balancing test,
there are several exceptions to the privilege where the need for
probative evidence is great or the interests underlying the privilege
are nonexistent.
Constitutional Limits. Doe v. Diamond, 964 F.2d 1325 (2d Cir.
1992), decided prior to Jaffee, involved a criminal defendant's
request for the psychiatric records of a victim, Doe, who had initiated
the criminal charges, and who would be a witness against him.
Consider the following excerpt from the opinion, and pay close
attention to the significance of the confrontation clause to the
analysis. The confrontation clause may often mandate discovery
regardless of the parameters of a privilege:
Although appellant's [Doe's] psychiatric files do contain material that squarely
implicates his privacy interests, the balance in this case weighs overwhelmingly in favor
of allowing an inquiry into his history of mental illness. Appellant is not only the person
who initiated the criminal investigation against Diamond [the criminal defendant] but
 also a witness whose credibility will be the central issue at trial. He has a long history of
emotional illness, and there is expert psychiatric opinion in the record that this history is
relevant to his credibility. That opinion includes the observation that appellant's
“interpretation of reality” might have been affected during times in which he was
undergoing psychiatric treatment, as he was at the time of the events about which he is
to testify. We agree with Chief Judge Platt that a preclusion of any inquiry into
appellant's psychiatric history would violate the Confrontation Clause and vitiate any
resulting conviction of Diamond.
Appellant poses for us various hypotheticals concerning the disclosure of
communications made to psychotherapists thirty years ago, destruction of the privacy
interests of a third party, and the violation of the professional obligations of the
psychotherapists involved. These matters are not before us, however. The questions
that appellant declined to answer concerned times at which he received psychiatric
treatment and

988
the names of particular psychotherapists. They also concerned his refusal to consent
to those psychotherapists being interviewed by counsel under the protective order. The
hearing held by Chief Judge Platt was in camera, and appellant's answers to the
questions and counsel's interviews of appellant's psychotherapists would have been
subject to a protective order sufficient to prevent public revelation of confidential
matters. His answers to the questions and consenting to the interests as an important
factor to be weighed in the interviews would not, therefore, have resulted in the public
disclosure of confidential matters. [Id. at 1329.]
In cases since Jaffee, courts have adhered to the reasoning in Doe
and have held that a criminal defendant's Sixth Amendment rights to
information that establishes an element of defense or impeaches a
witness can justify discovery of a victim and/or witness's mental
health records. United States v. Alperin, 128 F. Supp. 2d 1251, 1254
(N.D. Cal. 2001). But see United States v. Doyle, 1 F. Supp. 2d 1187
(D. Or. 1999) (victim's mental health records, relevant only to
sentencing enhancement, need not be disclosed to already
convicted defendant).
The psychotherapist-patient privilege can arise in criminal cases
involving alleged child sexual abuse. If the child accuser confides his
or her memories of abuse to a psychiatrist, the child may then assert
the privilege when the accused attempts to discover the
communications. See, e.g., Goldsmith v. State, 651 A.2d 866 (Md.
1995); State v. Speese, 545 N.W.2d 510 (Wis. 1996). The majority of
courts hold that the defendant can have access to the psychiatric
records of his accuser if the psychiatrist testifies at trial. Other
concerns raised by these cases are whether courts should appoint
counsel or guardians ad litem to assist minors in determining
whether to assert or waive the privilege, whether the privilege should
apply during discovery, and whether a person's refusal to waive the
privilege should preclude that person from testifying at trial. Id. at
517.
Compelled Disclosures. Statutory law typically abolishes the
psychotherapist-patient privilege in proceedings to hospitalize the
patient for mental illness, if the psychotherapist has determined that
the patient is in need of hospitalization. And if a judge orders an
examination of the mental or emotional condition of the patient,
communications made in the course of the examination are not
privileged with respect to the particular purpose for which the
examination is ordered unless the judge orders otherwise. In many
states, mental health professionals are also required to report their
reasonable suspicions that children whom they treat have been
abused, and some states create an exception to the privilege where
child abuse is known or suspected.
Dangerous Patient. In its concluding footnote, the majority opinion
in Jaffee noted that “there are situations in which the privilege must
give way, for example, if a serious threat of harm to the patient or to
others can be averted only by means of a disclosure by the
therapist.” See page 977–72, supra. This footnote has generated
some case law on whether threats made during therapy sessions
can form the basis of prosecutions for violation of federal laws that
define such threats as criminal conduct. In such instances, the
therapist's testimony about the threats—in violation of the
psychotherapist privilege—is the only evidence that the prosecutor
has. Thus, the government has sought judicial recognition of a so-
called dangerous patient exception. So far, federal courts have split
on the question of whether the exception exists. The

989
 Sixth and Ninth Circuits have declined to adopt the dangerous
patient exception. See United States v. Hayes, 227 F.3d 578 (6th Cir.
2000); and United States v. Chase, 340 F.3d 978 (9th Cir. 2003).
Recognizing that psychotherapists have professional and ethical
duties to protect potential victims when threats are made during
therapy, the court in Hayes stated that these duties “may require,
among other things, disclosure to third parties or testimony at an
involuntary hospitalization proceeding.” Hayes, 227 F.3d at 585. The
court held, however, that “compliance with the professional duty to
protect does not imply a duty to testify against a patient in criminal
proceedings or in civil proceedings other than directly related to the
patient's involuntary hospitalization, and such testimony is privileged
and inadmissible if a patient properly asserts the
psychotherapist/patient privilege.” Id. The court reasoned that once
the appropriate warning had been given, or proceedings initiated, it
would be highly unlikely that the therapist's testimony in a criminal
prosecution would be the only means of avoiding harm to others,
which was the standard adverted to in Jaffee. Thus, the court in
Hayes concluded the Jaffee footnote was no more than an aside
to the effect that the federal psychotherapist/patient privilege will not operate to impede
a psychotherapist's compliance with the professional duty to protect identifiable third
parties from serious threats of harm. We think the Jaffee footnote was referring to the
fact that psychotherapists will sometimes need to testify in court proceedings, such as
those for the involuntary commitment of a patient, to comply with their “duty to protect”
the patient or identifiable third parties. [Id. at 584.]
However, the Fifth Circuit found, in United States v. Auster, 517 F.3d
312, 319 (5th Cir. 2008), that when the psychiatrist had warned the
patient that his professional duties would require him to report any
threatening communication, the “patient [had] no reasonable
expectation of confidentiality.” While the court implied that an
expectation that a psychiatrist will reveal threatening communication
would generally lead “the cost-benefit scales [to] favor disclosure,” it
held that any threatening communication made with actual
knowledge that it would not be kept confidential was not privileged.
Id. In United States v. Glass, 133 F.3d 1356, 1360 (10th Cir. 1998),
the Tenth Circuit stated that if the threat of harm was serious and
could be averted only by disclosure, compelled disclosure may be
warranted.
Crime-Fraud Exception. In re Grand Jury Proceedings (Gregory
P. Violette), 183 F.3d 71 (1st Cir. 1999), held that a “crime-fraud
exception” applies to the psychotherapist patient privilege. The
defendant was the target of a federal grand jury investigation
focused on possible bank fraud crimes involving false claims of his
disabilities. By analogy to the attorney-client privilege, the court
found that the rationale for the privilege diminishes when
communications made in therapy are in furtherance of crime. The
exception will only apply, however, when the patient's purpose in
making a communication is not therapy, but to promote a particular
crime or fraud. It would not apply, for example, to a career criminal's
confessions to his therapist even though the therapy may generally
increase the patient's professional productivity. When the evidence
indicates that defendant's communications to the therapists were
made as part of a scheme to defraud lenders and/or disability
insurers, the key ingredients of the crime-fraud exception are
established.

990

KEY POINTS
1. Federal law recognizes a psychotherapist-patient privilege
and, to a more limited extent, a physician-patient privilege as
well. Most states recognize both privileges.
2. The federal psychotherapist-patient privilege has been
extended to all physicians, psychologists, licensed social
workers, and a variety of other mental health workers, when
communications for the purpose of diagnosis or treatment of a
mental or emotional condition are made with the reasonable
expectation of confidence.
 3. The privilege may be set aside when disclosure of the
communication is necessary to protect the Compulsory
Process and Confrontation rights of criminal defendants;
when the patient has placed his emotional or mental condition
at issue in litigation; and when the communications are
intended to promote a crime or fraud.
4. The courts are in disagreement over the existence of a
dangerous patient exception.

PROBLEMS
12.22. At Alice Draper's prosecution for murder of a federal official,
the prosecution offers to introduce the following evidence:
Shortly after the victim's death, an individual called an
Alcoholics Anonymous hotline manned by volunteers and
asked to speak with a doctor. When the volunteer who had
answered the phone asked what the problem was, the caller
responded, “Murder. I just killed a man. I need help.” Another
volunteer called the police, and the police traced the
telephone call to a telephone booth, where they found and
arrested Draper. Draper has objected to evidence of what she
said to the AA volunteer on the ground that her statements fall
within the psychotherapist-patient privilege. What result? What
additional facts might affect the outcome?
12.23. Plaintiff Peters brought an action in federal court against his
employer for unlawful discrimination and violation of the
Family Medical Leave Act due to his termination from
employment on the basis of his mental illness. The defendant
employer seeks discovery of a journal that Peters started
keeping after losing his job, but which he has not shown to the
doctor who is providing psychological counseling. The journal
concerns the events that surrounded Peters's termination.
Peters claims that the journal should be protected pursuant to
the psychotherapist-patient privilege because he started
 keeping the journal when his doctor suggested that “writing
down what happened can help you understand some of the
situation.” Is the journal privileged?
12.24. Plaintiff Salter has filed an action under the American with
Disabilities Act (ADA) against her employer for unlawful
discharge and failure to make

991

reasonable accommodation for her clinical depression, which, she

claims, required medication that caused her difficulty in
waking up and chronic tardiness at work. The ADA requires
the plaintiff to make a prima facie case of discrimination,
which includes that she is a member of a protected category,
which means a person with physical or mental impairment; a
person with a record of such impairment; or a person being
regarded as having such impairment. May plaintiff protect the
release of her medical records of her treating psychiatrist
pursuant to the psychotherapist-patient privilege?
12.25. Walter and Sarah Wong have sued Walter's tax preparer
H&R Block, Inc. for breach of contract for its unauthorized
disclosure in 1998 of Walter's tax return information, a
disclosure that led to a criminal investigation and civil audits
by the IRS. Plaintiffs allege that they incurred actual damages
in the form of legal fees and “severe emotional distress,
including physical mental suffering, shame, and humiliation.”
In 1998, prior to their marriage but after the conduct alleged in
this suit, Walter and Sarah attended joint counseling sessions
with a licensed social worker to help with the health of their
relationship. In 1999, Sarah went for an initial consultation to a
licensed psychologist. Defendant H&R Block has filed notices
of taking depositions of both the social worker and
psychologist. Defendant asserts that any psychotherapist-
patient privilege was waived (1) by plaintiffs alleging serious
claims for emotional distress and (2) through the revelation in
their own depositions of the identities of their mental health
 providers, as well as the dates and costs of the sessions, and
the purpose of the visits to the social worker. Plaintiffs contend
that they have not waived the privilege because they have not
alleged psychic injury or disease nor psychiatric injury or
disease or disorder, and that no psychological testimony will
be offered at trial. What result?

F. THE CLERGY-COMMUNICANT PRIVILEGE

The priest-penitent privilege—now more commonly referred to as the

clergy-communicant privilege—is accepted as legitimate by scholars
and courts, at least to some degree. Indeed, every state has
legislatively enacted some version of this privilege, and Proposed
Federal Rule 506 specifically recognized a privilege protecting
“confidential communication[s] by [a] person to a clergyman in his
professional character as spiritual advisor.” Pursuant to FRE 501,
federal courts have recognized the existence of a clergy-
communicant privilege as a matter of federal common law. See In re
Grand Jury Investigation, 918 F.2d 374 (3d Cir. 1990); United States
v. Dube, 820 F.2d 886 (7th Cir. 1987); United States v. Gordon, 655
F.2d 478 (2d Cir. 1981). See generally Lennard K. Whittaker, The
Priest-Penitent Privilege: Its Constitutionality and Doctrine, 13
Regent U. L. Rev. 145 (2000-2001). The privilege is accepted in
some form by all 50 states, but in the wake of the many high-profile
cases involving child sexual abuse by clergy members in recent
years, 40 states now require clergy members to report instances of
child abuse as part of those states' mandatory reporting

992

statutes (with some exceptions for communications within the scope

of the privilege). See, e.g., Ga. Code Ann., §19-7-5 (providing that “.
. . a member of the clergy shall not be required to report child abuse
reported solely within the context of confession or other similar
communication required to be kept confidential under church
doctrine or practice. When a clergy member receives information
about child abuse from any other source, the clergy member shall
comply with the reporting requirements of this Code section, even
though the clergy member may have also received a report of child
abuse from the confession of the perpetrator.”); 1 David M.
Greenwald et al., Testimonial Privileges §6:14 (Trial Practice Series,
3d ed. 2005).

1. The Privilege and Its Justifications

The clergy-communicant privilege generally applies “to protect
communications made (1) to a clergy person (2) in his or her spiritual
and professional capacity (3) with a reasonable expectation of
confidentiality.” In re Grand Jury Investigation, 918 F.2d 374, 384 (3d
Cir. 1990).
The privilege has been justified in four ways: (1) The traditional
utilitarian justification, that the privilege is necessary to preserve the
confidential relationship between clergy person and communicant, is
often given. In this respect the privilege is similar to the attorney-
client, physician-patient, psychotherapist-patient, and marital
communications privileges.
(2) Another justification is constitutional in origin, based upon the
Free Exercise Clause of the First Amendment. According to this
argument, the clause prevents courts from compelling a priest to
reveal confidential communications, where such disclosure would
contradict their religious practice. Although the privilege is probably
not mandated by the Constitution, the principle of religious freedom
has historically offered compelling support for the privilege. See 1
Kent Greenawalt, Religion and the Constitution: Free Exercise and
Fairness 246-260 (2006). See also 7 Jeremy Bentham, Works of
Jeremy Bentham 366-367 (1843) (justifying the privilege by the
principle of religious toleration).
(3) The privacy rationale, emphasizing the private nature of
religious worship, is occasionally invoked as well. By creating a zone
of privacy and protecting spiritual counseling from disclosure, the
privilege accords respect for the intimacy of the communicant's
relationship to clergy. According to this rationale, confidentiality is a
privacy interest that itself acts as a legitimate constraint on the truth-
finding function of trial.
(4) Last, the privilege is said to protect the credibility of our judicial
system by preventing controversial clashes between court and
clergy. Advocates of this rationale contend that “the spectacle of
courts imprisoning members of the clergy for refusing to violate
confidences entrusted to them might tend to subvert public faith in
the judicial process.” Developments in the Law—Privileged
Communications, 98 Harv. L. Rev. 1450, 1562 (1985). In this sense,
the privilege accords respect to the separation between church and
state.

993

2. Scope of the Privilege

The most important issues in the interpretation of the clergy-
communicant privilege are who counts as a clergy person, what
kinds of communications are protected, and when does the presence
of third persons waive the privilege. In most jurisdictions the holder
of the privilege is the communicant, but a small minority of states
grant the privilege and the decision to disclose communications to
the clergy. Most state statutes, however, explicitly prohibit clergy
from disclosing confidential communications without the
communicant's consent. In a well-publicized case in New York, a
priest revealed the confessional statement of a deceased
parishioner, made 11 or 12 years earlier, that helped to exculpate
two men wrongly convicted of the murder to which the deceased
parishioner confessed. Such breach of confidence was proper,
according to the priest and the Archdiocese of New York, because
the confessional statement was not a formal confession within
Catholic practice. Had the confession been formal, the priest would
never have been able to reveal it, even after the parishioner's death.
Morales v. Portuondo, 154 F. Supp. 2d 706, 714 (S.D.N.Y. 2001).
Even if the clergy person does not hold the privilege, the clergy
have their own interests in protecting the privacy of their religious
counseling. In Mockaitis v. Harcleroad, 104 F.3d 1522 (9th Cir.
1997), the court held that a tape-recorded conversation between a
priest and a jail inmate—which the inmate knew was being taped by
the state—was not privileged, but that disclosure would violate the
priest's Fourth Amendment expectation of privacy and the federal
Religious Freedom Restoration Act.
a. Definition of Clergy
Proposed FRE 506(a)(1) defined a member of the clergy as “a
minister, priest, rabbi, or other similar functionary of a religious
organization, or an individual reasonably believed so to be by the
person consulting him.” This definition was adopted by the Third
Circuit in In re Grand Jury Investigation, 918 F.2d 374, 384-385 (3d
Cir. 1990). The “reasonably believed to be” a clergy person clause
serves to protect the reasonable expectations of the individual.
Some state statutes fail to provide any definition other than
“clergyman or priest,” while others provide very broad language in
defining the individuals covered. See, e.g., 735 Ill. Comp. Stat. 5/8-
803 (2002) (referring to “a clergyman or practitioner of any religious
denomination accredited by the religious body to which he or she
belongs”). Georgia explicitly delineates which members of the clergy
are included, confining the privilege to “any Protestant minister of the
Gospel, and any priest of the Roman Catholic faith, any priest of the
Greek Orthodox Catholic faith, any Jewish rabbi, or to any Christian
or Jewish minister, by whatever name called.” Ga. Code Ann. §24-9-
22 (West 2003).
One issue that often arises is whether the privilege extends to
situations in which communicants receive spiritual advice from
individuals who are not officially ordained members of the clergy. The
Third Circuit foresaw this problem and stated, in dicta, that its
adoption of the broad definition of clergy in Proposed Rule 506 did
not imply “that the privilege should be interpreted to comprehend
communications

994
 to and among members of sects that denominate each and every
member as clergy.” In re Grand Jury Investigation, 918 F.2d at 384
n.13. The burden is on the party asserting the privilege to show that
the person to whom communications were made is regularly
engaged in activities which conform generally to the conduct of
Catholic priests, Jewish rabbis, or Protestant ministers. United
States v. Napolean, 46 M.J. 279, 284-285 (Ct. App. A.F. 1997) (citing
2 S. Saltzburg and M. Martin, Federal Rules of Evidence Manual
601-602 (5th ed. 1990)). In In re Verplank, 329 F. Supp. 433, 435-
436 (C.D. Cal. 1971), the court protected confidential
communications made to nonordained counselors from disclosure,
because the counselors' services sufficiently resembled acts
performed by the ordained minister who supervised them. The
complexity of this issue can be seen in Cox v. Miller, 154 F. Supp. 2d
787 (S.D.N.Y. 2001), where the district court dramatically expanded
the privilege to include statements made at Alcoholics Anonymous
(AA) meetings. In Cox, the defendant's confession to two murders,
made to his fellow AA members, were covered by the privilege, as
the court noted that the Second Circuit had held that AA was a
religion, by reason of the religious nature of its “Twelve Steps of
Recovery.” Although the decision was subsequently reversed by the
Second Circuit in Cox v. Miller, 296 F.3d 89 (2d Cir. 2002), the case
indicates how the clergy-communicant privilege can be susceptible
to a quite broad interpretation.
b. Nature of the Communication
The clergy-communicant privilege applies only to communications
made to a clergy person in that person's spiritual or professional
capacity. Courts have interpreted this to mean that the
communication is “related to a religious function. . . . [T]he
communication must be essentially for an ecclesiastical and religious
purpose.” Ellis v. United States, 922 F. Supp. 539, 542 (D. Utah
1996). Such communications are to be distinguished from
communications that simply advise clergy about events, as in Ellis
(witness to a tragic accident at a church-sponsored outing informed
church officials about the event for secular purposes), or that are
made for emotional support and consolation rather than guidance
and forgiveness as a formal act of religion or as a matter of
conscience. United States v. Napolean, 46 M.J. at 285. A narrower
view of the privilege—to apply only to acts of “confession”—could
raise serious first amendment and equal protection concerns by
limiting the privilege to certain religions.
c. Expectation of Confidentiality
As is the case with the attorney-client privilege, the presence of
third parties, if essential to and in furtherance of the communication,
should not void the privilege. For example, transmission of the
communications within a church hierarchy may remain privileged. In
Scott v. Hammock, 133 F.R.D. 610 (D. Utah 1990), the court applied
Utah law to hold that communications from the communicant to a
clergy person, and then passed vertically from one religious authority
up to another within the church hierarchy, were privileged because
such communication was necessary to

995

the carrying out of church discipline. If communications among the

church officers themselves could be discovered, then the privilege
would be destroyed and the communicant's confidence abridged.
In In re Grand Jury Investigation, the government sought to compel
the disclosure of communications among several family members
and their pastor on the grounds that a nonfamily member had also
been present. The Third Circuit reasoned as follows:
In essence, the government claims that persons who are not related by blood or by
marriage cannot, under federal law, engage together in protected communications with
a member of the clergy acting in a spiritual or professional capacity. . . .
The government is correct in observing that the traditional clergy-communicant
privilege protected a penitential relationship in which a person privately confessed his
or her sins to a priest, in order to receive some form of church sanctioned discipline or
absolution. Neither family nor other types of group counseling fit neatly within this “one-
to-one” model of the privilege. We have explained, however, that the modern view of
the privilege is more expansive than the traditional one. We discern nothing in modern
clergy-communicant privilege doctrine, as it finds expression in either proposed Rule
506 or the cases recognizing the privilege, that would limit the privilege's application
solely to group discussions involving family members related by blood or marriage.
 Modern clergy-communicant privilege doctrine focuses, rather, on whether the
presence of a third party is essential to or in furtherance of a communication to a
member of the clergy. We think, consistent with the general constructional rule that
evidentiary privileges should be narrowly construed, that recognition of the clergy-
communicant privilege in this circumstance depends upon whether the third party's
presence is essential to and in furtherance of a communication to a member of the
clergy. As is the case with consultations between attorneys and clients, the presence of
multiple parties, unrelated by blood or marriage, during discussions with a member of
the clergy may, but will not necessarily, defeat the condition that communications be
made with a reasonable expectation of confidentiality in order for the privilege to attach.
918 F.2d at 386.

However, the appellate court also found that the district court had not
developed adequate facts upon which to make the necessary finding
that the family members reasonably expected that their
communications to their pastor were confidential. It remanded the
case to the district court “to determine whether the [family members]
communicated with Pastor Knoche in his spiritual or professional
capacity and with a reasonable expectation of confidentiality. . . .” Id.
at 387. This might require an inquiry “into the nature of the
communicants' relationship as well as the pastoral counseling
practices of the relevant synod of the Lutheran church . . . whether
the parties shared a commonality of interest at the time of the
communication and, if so, in what respect . . . [and] a fuller record . .
. as to [the third person's] role in the counseling session. In order to
ascertain whether her presence worked to vitiate or to waive the
privilege, the court will have to inquire into whether the other group
members, who apparently are subjects of the grand jury
investigation, reasonably required her presence at the counseling
session, either in furtherance of their communications to the pastor
or to protect their interests.” Id. at 387-388. And the appellate court
was

996

well aware that such an inquiry might require some degree of

disclosure from the pastor as to what was discussed in the group
meeting. It left to the discretion of the district court how to ascertain
this information; whether to use in camera hearings; whether or not
parties and/or counsel should be present; and how to accommodate
“delicate first amendment issues.” Id. at 388.
d. Exceptions
The main exception to the clergy-communicant privilege in state
statutes involves a clash between the privilege and state mandatory
reporting statutes in the area of child abuse. Due to clergy child sex
abuse scandals, public outrage has spurred state legislatures to act.
“Every state has passed a statute requiring mandatory reporting of
child abuse.” 1 Greenwald et al., Testimonial Privileges §6:14. Some
states have amended these mandatory reporting statutes by
including clergy members in the list of groups required to report
instances of child abuse. See, e.g., Mass. Gen. Laws Ann. ch. 119,
§51A (West 2002); Ala. Code §26-14-3 (1992 & Supp. 2004).
Currently, the mandatory reporting statutes of approximately 40
states require clergy to disclose known or suspected incidents of
child abuse, either by specifically listing clergy members within the
list of applicable groups, or by the use of a catchall phrase, such as
“any person.” Greenwald, et al. §6:4. However, the majority of the
states that require clergy to report child abuse still maintain an
exception in the case of the clergy-communicant privilege, protecting
such communications from the mandatory reporting requirements.
Id. For example, although Massachusetts has amended its
mandatory reporting statute to include clergy members, the statute
still provides the following exception:
[A] . . . clergy member . . . shall report all cases of abuse under this section, but need
not report information solely gained in a confession or similarly confidential
communication in other religious faiths. Nothing in the general laws shall modify or limit
the duty of a . . . clergy member . . . to report a reasonable cause that a child is being
injured as set forth in this section when the . . . clergy member . . . is acting in some
other capacity that would otherwise make him a reporter. Mass. Ann. Laws ch. 119
§51A.
Essentially, this means that, in many states, a clergy member is
required to report suspected or known child abuse so long as doing
so would not reveal the substance of a confession or an otherwise
confidential communication with a penitent. See, e.g., Ga. Code
Ann., §19-7-5. A few states do the opposite, by specifically denying
the privilege in their mandatory reporting statutes, see, e.g., Tex.
Fam. Code Ann. §261.101 (Vernon 2002); N.H. Rev. Stat. Ann.
§169-C:29 (2001), while others that require mandatory reporting do
not mention its effect on the privilege. See, e.g., Ind. Code Ann. §31-
33-5-1 (West 1999). For further discussion, see Norman Abrams,
Addressing the Tension Between the Clergy-Communicant Privilege
and the Duty to Report Child Abuse in State Statutes, 44 B.C. L.
Rev. 1127 (2003); Christopher R. Pudelski, The Constitutional Fate
of Mandatory Reporting Statutes and the Clergy-Penitent Privilege in
a Post-Smith World, 98 Nw. U. L. Rev. 703, 706-707 (2004).

997

KEY POINTS
1. A clergy-communicant privilege has been recognized under
federal law and in all state jurisdictions, though exceptions
exist in several states for mandatory reporting of known or
suspected child abuse.
2. Courts extend the privilege to communications made to
ordained clergy or to people performing the same activities.
The communications must be relevant to a religious function.
3. Communications made in the presence of third persons can
be privileged if the third person's presence was essential to
and in furtherance of the communication to the clergy.

PROBLEMS
12.26. Darlene is being tried for the crime of making threats
through the U.S. mail. Darlene raises an insanity defense. The
clergy person who leads Darlene's religious congregation
testifies that during the time of Darlene's conduct, Darlene did
“know right from wrong.” The clergy person further states that
 this opinion is based on knowing Darlene, on observations of
Darlene, and on speaking with Darlene during this period.
Does this testimony violate the clergy-communicant privilege?
12.27. Jim Jones joined a mail order church for a fee of $100,
which entitled him to the status of lay minister. The tenets of
the church included a vow of poverty and the belief that
personal income of ministers was not taxable by the federal
government. Jones stopped paying income taxes and is now
prosecuted for failure to file income tax returns from 1996 to
2000. In 1999, Jones also joined an established church and
had several conversations with the minister concerning his
beliefs about taxation. The government plans to call the
minister who would testify that he advised Jones that his
income was not exempt from taxation. Can Jones enforce the
clergy-communicant privilege?
12.28. Sam Evans is being prosecuted for sexually assaulting his
12-year-old stepdaughter. Shortly after the incident that is the
subject of the prosecution, Sam and his wife were separated.
Sam began seeing his minister for spiritual guidance. At one
session, which concerned marriage counseling, Sam's wife
was also present. At this session, Sam admitted that he had
sexually assaulted the stepdaughter, and he said that he had
told his wife this the night before. The prosecution plans to call
Sam's wife, who is willing to testify about both of Sam's
admissions. The prosecution also plans to call the minister
and ask him about what Sam said at the counseling session.
The minister, however, has expressed an unwillingness to
testify about these matters, and the minister is disturbed that
Sam's wife is willing to testify. Does the minister have any
personal right not to testify or to prevent Sam's wife from
testifying? What objections can Sam make to the testimony of
his wife and the minister? What additional facts might be
needed to answer these questions? How would they be
determined?

998
G. OTHER PRIVILEGES

1. Other Professional-Client Relationships

Privileges are occasionally recognized for confidential
communications to other professionals, such as accountants,
teachers, family and marriage counselors, social workers, lay
advocates, and private detectives who counsel, advise, or act on
behalf of their clients. Statutes enacting such privileges have been
passed in a minority of states. For example, an accountant-client
privilege exists in approximately one-third of the states. One
interesting issue relating to the accountant-client privilege is whether
the privilege is waived for the underlying information that is used to
develop a publicly disclosed financial report, such as an Annual
Report prepared by independent auditors that is required by the SEC
for public companies. If a state's law does not create an exception
for the privilege in such a situation, then it is likely that the privilege
will still be available for the underlying information. See, e.g., In re
Hillsborough Holdings Corp., 176 B.R. 223, 237 (M.D. Fla. 1994).
However, according to case law, there is neither a privilege nor work-
product protection for accountants in federal court. See United
States v. Arthur Young & Co., 465 U.S. 805 (1984); Couch v. United
States, 409 U.S. 322 (1973). In 1998, 26 U.S.C. §7525 extended the
attorney-client privilege to “a federally authorized tax practitioner,”
who is a nonlawyer authorized to practice before the Internal
Revenue Service. Though work product is still not protected, the new
privilege provides that “the same common law protections of
confidentiality which apply to a communication between a taxpayer
and an attorney shall also apply to a communication between a
taxpayer and a federally authorized tax practitioner to the extent the
communications would be considered a privileged communication if
it were between a taxpayer and an attorney.” §7525(a)(1).
Another example is that privileges for various counseling
professionals may be recognized under a state's psychotherapist-
patient privilege. Psychotherapist may be defined to include
professionals other than psychiatrists, psychologists, and
psychotherapists, such as social workers; psychiatric nurses;
counselors of rape victims, battered women, and drug and alcohol
abusers; as well as school, family, and marriage counselors whose
functions are analogous to those of a psychotherapist. See
Catharina J. H. Dubbleday, Comment, The Psychotherapist-Client
Testimonial Privilege: Defining the Professional Involved, 34 Emory
L.J. 777 (1985). Another “counseling privilege” that some states
recognize is a sexual assault victim-counselor privilege. See, e.g.,
Cal. Evid. Code §1035-1036.2 (West 1995 & Supp. 2005); 735 Ill.
Comp. Stat. 5/8-802.1 (2002); 42 Pa. Cons. Stat. Ann. §5945.1(b)
(West 2000 & Supp. 2005) (“[n]o sexual assault counselor may,
without the written consent of the victim, disclose the victim's
confidential oral or written communications to the counselor nor
consent to be examined in any court or criminal proceeding”). Some
states, such as Massachusetts, provide for an absolute privilege,
while others, such as California, have enacted a qualified privilege
permitting disclosure under certain circumstances. For further
discussion, see Euphemia B. Warren, She's Gotta Have It Now: A
Qualified Rape Crisis Counselor-Victim Privilege, 17 Cardozo L. Rev.
141 (1995).

999

2. Parent-Child Privilege
A privilege for parent-child communications was not recognized at
common law. Presently, five states, Colorado, Idaho, Massachusetts,
Minnesota, and Washington, have enacted legislation adopting a
parent-child confidential communications privilege, although in
Colorado and Washington the privilege is limited to communications
made to an attorney by a child while in the presence of a parent. In
contrast, the majority of states have refused to adopt the privilege.
See, e.g., People v. Dixon, 161 Mich. App. 388, 393, 411 N.W.2d
760, 763 (1987); In re Gail D., 217 N.J. Super. 226, 232, 525 A.2d
337, 340 (1987). A New York court recognized a parent-child
privilege based on the constitutional right to privacy. People v.
Fitzgerald, 101 Misc. 2d 712, 422 N.Y.S.2d 309 (Westchester County
Ct. 1979). However, Fitzgerald has not been followed by any New
York court decision, and has since been limited by People v. Harrell,
87 A.D. 2d 21, 450 N.Y.S.2d 501, 504 (1982) and criticized in People
v. Hilligas, 175 Misc. 2d 842, 670 N.Y.S.2d 744 (Erie County Ct.
1998), for its inappropriate extension of the privilege to adult
children.
Prior to the passage of Washington's parent-child privilege statute,
the Washington Supreme Court refused to adopt a general privilege.
State v. Maxon, 110 Wash. 2d 564, 574, 756 P.2d 1297, 1302
(1988). As noted above, the Washington statute creates only a
limited privilege, and as such the decision denying a general parent-
child privilege in Maxon remains in effect, narrowing the scope of the
privilege in Washington.
Addressing the constitutional claim for the privilege, the
Washington Supreme Court stated:
The Constitution does not mandate recognition of a parent-child privilege. The right of
privacy line of cases gives no indication that the interest in confidential communications
between parent and child qualifies as a fundamental right for the purpose of
substantive due process analysis. Any infringement of this interest caused by
nonrecognition of a parent-child privilege is indirect and incidental.
Maxon, supra, 756 P.2d at 1301 (quoting Donald Cofer, Comment,
Parent-Child Privilege: Constitutional Right or Specious Analogy?, 3
U. Puget Sound L. Rev. 177, 210-211 (1979)).
In the absence of congressional action, federal courts have
generally refused to recognize a parent-child privilege. See, e.g.,
Under Seal v. United States, 755 F.3d 213, 217-222 (4th Cir. 2014)
(refusing to recognize a parent-child privilege for policy reasons that
run against the creation of new privileges and after surveying court
decisions that predominantly declined invitations to establish such a
privilege under both state and federal law); In re Grand Jury
Proceedings, 103 F.3d 1140, 1146-47 (3d Cir. 1997) (noting that the
vast majority of federal and state courts do not recognize a parent-
child privilege and refusing to recognize this privilege).
An interesting issue raised by many courts presented with a claim
of the privilege has been whether the privilege would apply solely to
communications from child to parent or to communications from
parent to child as well. Commentators argue that the privilege should
apply solely to conversations from child to parent since the policy
behind the privilege is to encourage the child to confide in the parent.

1000

Though parent-child privileges have not gained widespread

acceptance, their supporters often refer to what has been called the
“cruel trilemma” that witnesses face. The first option for a testifying
parent or child is to choose to commit perjury in order to protect a
family member. Rather than implicate his father, a son in United
States v. Ismail, 756 F.2d 1253 (6th Cir. 1985), perjured himself at a
grand jury hearing. The son later broke down on the witness stand,
admitting that he had lied to the grand jury and had considered
suicide to avoid testifying against his father. The second option for a
witness in this position is to tell the truth and face what damage may
be done to the relationship and the guilt that will come from having
hurt a loved one. Terry Nichols was convicted for his involvement in
the 1995 Oklahoma City bombing after his son Josh, 13, was forced
to testify before a grand jury. Josh's mother told reporters that her
son suffered from nightmares as a result of testifying.73 The third
option is to refuse to testify and be found in contempt of court. In
State v. DeLong, 456 A.2d 877 (Me. 1983), a 15-year-old girl who
had been sexually abused by her adoptive father was sentenced to
jail for refusing to testify against him.
Because of the difficulty of choosing to testify truthfully against a
family member, many judges and prosecutors worry about the
veracity of a parent's or child's testimony. Furthermore, the appeal of
family privacy can make the support of a parent-child privilege
politically attractive. The issue came under national scrutiny in
February 1998 when Independent Counsel Kenneth Starr
subpoenaed Marcia Lewis, mother of Monica Lewinsky, to testify
before a grand jury about her daughter's relationship with President
Clinton. In the 1998 and 1999 congressional sessions, the spectacle
inspired three bills in the U.S. House of Representatives and one in
the Senate,74 each of which proposed the creation of a federal
parent-child privilege. The “Confidence in the Family Act,” 105 H.R.
3577 (1998), was rejected by the House Judiciary Committee for
many reasons, including concern that the broad scope of the bill
might cover natural parents as well a stepparents and grandparents,
adult as well as minor children, and criminal as well as civil cases.75
The three remaining bills did not emerge from the House and Senate
Judiciary Committees. Representative Andrews, a Democrat from
New Jersey, has repeatedly attempted to obtain legislative approval
for a parent-child privilege statute (see, e.g., the Parent-Child
Privilege Act of 2005, 109 H.R. 3443 (2005)), though each attempt
has been unsuccessful.

1001

3. Communications Made in Settlement Negotiations

One emerging area of privilege law is that of settlement negotiations.
As discussed in Chapter Six, FRE 408 precludes communications
made in settlement negotiations from being used at trial as evidence
of liability. However, “[t]he court may admit [such] evidence for
another purpose, such as proving a witness's bias or prejudice,
negating a contention of undue delay, or proving an effort to obstruct
a criminal investigation or prosecution.” Fed. R. Evid. 408. A
question remains as to whether FRE 408 applies only to admissibility
of evidence at trial, or whether it implies that a privilege should exist
to protect settlement communications from discovery. The primary
justification for the privilege is the desire to promote settlements and
the need for open discussion in settlement negotiations, including
adopting hypothetical positions that may not be entirely self-
interested in order to compromise effectively. If the statements made
in settlement negotiations are not privileged, despite FRE 408 as a
barrier to the use of the communications as evidence at trial, the
statements could be subject to discovery, which could create a
disincentive to open discussions during settlement negotiations.
 The Sixth Circuit Court of Appeals held that a privilege does exist
for communications made in furtherance of settlement negotiations,
protecting them from third-party discovery. Goodyear Tire & Rubber
Co. v. Chiles Power Supply, Inc., 332 F.3d 976 (6th Cir. 2003). In
Goodyear, after the case was concluded, Chiles gave an interview in
which settlement communications were improperly disclosed. Id. at
978. After learning about the communications, the plaintiffs in a
separate lawsuit against both Goodyear and Chiles joined the suit
and petitioned the district court to permit discovery of statements
made in settlement negotiations. Id. at 979.
The Sixth Circuit relied heavily on the Supreme Court's decision in
Jaffee v. Redmond, 518 U.S. 1 (1996), in discussing the parameters
of a privilege. Id. at 979-980. The Sixth Circuit found a strong public
policy interest in recognizing the privilege, as well as noting the
tradition of confidentiality in settlement communications. Id. at 980.
The court further concluded that information discovered from
settlement negotiations was unlikely to be relevant:
There exists a strong public interest in favor of secrecy of matters discussed by parties
during settlement negotiations. This is true whether settlement negotiations are done
under the auspices of the court or informally between the parties. The ability to
negotiate and settle a case without trial fosters a more efficient, more cost-effective,
and significantly less burdened judicial system. In order for settlement talks to be
effective, parties must feel uninhibited in their communications. Parties are unlikely to
propose the types of compromises that most effectively lead to settlement unless they
are confident that their proposed solutions cannot be used on cross examination, under
the ruse of “impeachment evidence,” by some future third party. Parties must be able to
abandon their adversarial tendencies to some degree. They must be able to make
hypothetical concessions, offer creative quid pro quos, and generally make statements
that would otherwise belie their litigation efforts. Without a privilege, parties would more
often forego negotiations for the relative formality of trial. Then, the entire negotiation
process collapses upon itself, and the judicial efficiency it fosters is lost. Id. at 980.

1002

Although the Sixth Circuit has adopted the privilege, the issue has
not yet been decided in other circuits. However, at least one district
court has declined to follow the Sixth Circuit. In In re Subpoena
Issued to Commodity Futures Trading Commission, 370 F. Supp. 2d
201 (D.D.C. 2005), the District Court for the District of Columbia held
that it would not recognize a new settlement privilege to protect
documents from third-party discovery. The court discussed several
factors that the Supreme Court considers in assessing a potential
privilege in reaching its decision. Id. at 208. The court noted that
there is no broad consensus in federal courts, as few federal courts
recognize the privilege, nor is there a consensus in state law
supporting the privilege. Id. at 208-209. The court also reasoned that
by enacting FRE 408, Congress chose to limit the admissibility of
settlement matter rather than discoverability. Id. Last, the court
opined that the proponents of the privilege had not made an
adequate showing that the privilege would effectively advance a
public good. Id. at 212.
Another similar privilege is the mediation communications privilege.
The mediation privilege protects from discovery communication and
documentation related to mediation negotiations between parties.
The mediation privilege was not recognized in common law, but
every state has enacted some statutory form of the privilege. By
passing the Alternative Dispute Resolution (ADR) Act in 1998, 28
U.S.C. §651, Congress requires federal district courts to authorize by
local rule ADR programs for all civil litigation. The ADR Act requires
ADR proceedings to be confidential and requires district courts to
develop safeguards to protect the confidentiality of communications
within these ADR proceedings. Id. at §652(d). Although the ADR Act
did not actually create a privilege, some federal courts have adopted
the privilege to protect the confidentiality of such mediation
communications. See, e.g., Folb v. Motion Picture Industry Pension
& Health Plans, 16 F. Supp. 2d 1164 (C.D. Cal. 1998); Sheldone v.
Pennsylvania Turnpike Commission 104 F. Supp. 2d 511 (W.D. Pa.
2000). However, other federal courts have declined to adopt such a
privilege without a clearer mandate from Congress. See FDIC. v.
White, 76 F. Supp. 2d 736, 738 (N.D. Tex. 1999) (“[t]he [c]ourt does
not read the ADR [Act] or its sparse legislative history as creating an
evidentiary privilege”). For further discussion of the mediation
privilege, see Ellen E. Deason, Predictable Mediation Confidentiality
in the U.S. Federal System, 17 Ohio St. J. on Disp. Resol. 239
(2002).
4. Privileges Protecting Outside Sources of Information
A unique category of privileges exists to protect confidential sources
of information. Three privileges of this type are the government
informant's privilege, the journalist's privilege, and the scholar's
privilege. These privileges can be distinguished from the confidential
communications privileges, for rather than focusing on the
communication's content, these privileges mainly focus on the
protection of the source's identity. The common justification is that
absent protection, the mere possibility of disclosure would disrupt the
future flow of information and thereby “harm the public by impeding
law enforcement efforts, the dissemination of news, or the
advancement of

1003

knowledge.” Developments in the Law—Privileged Communications,

98 Harv. L. Rev. 1592, 1594 (1985).
a. Government Informant's Privilege
The government informant's privilege protects the identities of
individuals who provide the government with information regarding
crimes or other suspect activity. Though the privilege was once
recognized as absolute, it has been curtailed due to concern for the
constitutional rights of criminal defendants. In Roviaro v. United
States, 353 U.S. 53, 62 (1957), the Supreme Court announced a test
that “balanc[ed] the public interest in protecting the flow of
information against the individual's right to prepare his defense.” The
informant's privilege arises most frequently in cases where a criminal
defendant alleges that an informant's testimony is critical to his
defense. In such circumstances, courts freely conduct in camera
hearings with an informant to determine how the Roviaro balance
should be struck. See, e.g., United States v. Anderson, 509 F.2d
724, 730 (9th Cir. 1974); United States v. Fischer, 531 F.2d 783 (5th
Cir. 1976). As a general matter, the defendant's constitutional right to
develop a defense will override the privilege. See Jencks v. United
States, 353 U.S. 657, 671-672 (1957).
 The informant privilege is also frequently invoked in the context of
a defendant's challenge to a search in which the government claims
that the informant provided the basis for probable cause. The
privilege has been applied in civil cases as well. In applying the
Roviaro balancing test, some civil courts maintain that the “strength
of the privilege is greater in civil litigation than in criminal,” In re
United States, 565 F.2d 19, 22 (2d Cir. 1978), while others adhere to
the standard used in criminal cases, see, e.g., Hodgson v. Charles
Martin Inspector of Petroleum, Inc., 459 F.2d 303, 305 (5th Cir.
1972).
b. Journalist's Privilege
A privilege to protect journalists against the disclosure of the
identities of their news sources has been consistently advocated by
members of media organizations. Proponents assert a twofold
justification for the privilege: (1) the privilege is necessary to
encourage the flow of confidential information from external sources;
and (2) the privilege protects the First Amendment guarantee of a
free press. The constitutional argument was rejected by the
Supreme Court in the 5 to 4 decision of Branzburg v. Hayes, 408
U.S. 665 (1972), which analyzed the privilege claim in the grand jury
setting. Noting “the limited nature of the Court's holding,” Justice
Powell in his concurrence proposed a balancing test to determine
journalist privilege claims. In line with Justice Powell's concurrence,
many lower federal courts have recognized a qualified journalist's
privilege based on the First Amendment. See, e.g., Continental
Cablevision, Inc. v. Stores Broadcasting Co., 583 F. Supp. 427 (E.D.
Mo. 1984); United States v. Burke, 700 F.2d 70 (2d Cir. 1983). But
see Herbert v. Lando, 441 U.S. 153 (1979) (declining to recognize an
editorial process privilege). The D.C. Circuit reiterated Branzburg in
rejecting a First Amendment challenge to a federal grand jury

1004

subpoena. In re Grand Jury Subpoena, Judith Miller, 397 F.3d 964

(D.C. Cir. 2005). In Miller, two reporters and Time, Inc., the parent
company of Time Magazine, were subpoenaed to testify about
sources used in their articles to a federal grand jury investigating the
alleged leak of a CIA agent's identity by government officials. Id. at
966-968. The court held that the First Amendment does not grant
journalists a right to refuse to divulge information about sources in
the context of a grand jury subpoena, and further held that, even if
there is a common law journalist privilege, which was not
determined, the privilege would be qualified, and the government
overcame any qualification. Id. at 972-973.
At least one federal court has specifically held that the reporter's
privilege does not apply in grand jury proceedings. In re Grand Jury
Proceedings (Scarce), 5 F.3d 397, 403 (9th Cir. 1993).
Efforts to enact a federal statutory privilege have not succeeded.
However, most states have enacted shield laws that vary in levels of
protection. When a reporter's sources are confidential, normally the
plaintiff must make a more substantial showing of need in order to
overcome the privilege. Mark v. Shoen, 48 F.3d 412 (9th Cir. 1995).
New York law states that in order to overcome the privilege, the party
seeking disclosure must make “a clear and specific showing that the
news: (i) is highly material and relevant; (ii) is critical or necessary to
the maintenance of a party's claim, defense or proof of an issue
material thereto; and (iii) is not obtainable from any alternative
source.” N.Y. Civ. Rights Law §79-h(c) (McKinney 1992). See also In
re Application to Quash Subpoena to National Broadcasting Co.,
Inc., 79 F.3d 346, 351 (2d Cir. 1996), where the court held that in
order to find unpublished news to be critical or necessary, there must
be a finding that the claim for which the information is to be used
“virtually rises or falls with the admission or exclusion of the proffered
evidence.” In contrast, the test is much less stringent where the
material is not confidential:
[W]here information sought is not confidential, a civil litigant is entitled to requested
discovery notwithstanding a valid assertion of the journalist's privilege by a nonparty
only upon a showing the requested material is: (1) unavailable despite reasonable
alternative sources; (2) noncumulative; and (3) clearly relevant to an important issue in
the case. [Mark v. Shoen, 48 F.3d at 416.]
The application of this privilege in libel and slander cases has been
limited. In Desai v. Hersh, 954 F.2d 1408 (7th Cir. 1992), the court
held that the privilege could not be invoked by a libel defendant,
because the plaintiff had the burden of proving actual malice on the
part of the reporter. Proof of actual malice under New York Times v.
Sullivan, 376 U.S. 254 (1964), depends on knowing the identity of a
reporter's source, since a libel plaintiff needs to demonstrate that the
source was unreliable or that the reporter failed to take sufficient
steps to verify the factual accuracy of the story. Because of this, the
general rule is that in defamation actions in which a plaintiff must
establish actual malice the reporter's privilege must give way to
disclosure. Miller v. Transamerican Press, Inc., 621 F.2d 721, 725-
726 (5th Cir. 1980). But see Condit v. National Enquirer, Inc., 289 F.
Supp. 2d 1175 (E.D. Cal. 2003) (wife of former Congressman Gary
Condit sued tabloid for libel; court upheld privilege protecting

1005

confidential source, concluding that plaintiff did not investigate all

reasonable alternative information sources).
In criminal cases, the defendant's constitutional right to develop a
defense will override the journalist's privilege even when the statute
establishing that privilege made it absolute. See Matter of Farber,
394 A.2d 330 (N.J. 1978).
c. Scholar's (Academic Researcher's) Privilege
Academic researchers have advocated a privilege to protect the
confidentiality of their research and the identity of their research
subjects. Proponents advance two arguments to support their claim
of the privilege. First, the scholar's privilege can arguably fall within
the ambit of the more widely recognized journalist's privilege,
particularly if the scholarly research is to result in publication.
Second, proponents argue that academic freedom is a special
concern of the First Amendment and that the privilege is necessary
to protect the research process and encourage the flow of
information from research subjects. In Cusumano v. Microsoft
Corporation, 162 F.3d 708 (1st Cir. 1998), the court considered
whether academic researchers who had interviewed over 40 current
and former Netscape employees in preparation for a book could
maintain the confidentiality of the interview notes, tapes, transcripts,
and recordings. Microsoft moved to compel the surrender of the
research materials after the researchers resisted a subpoena. The
court held that academic researchers are analogous to journalists
and that the First Amendment interest of preventing the “chilling
effect on speech” mandates the protection of the scholar's sources
as well as the journalist's. Without such a privilege, the court wrote,
“an academician, stripped of sources, would be able to provide
fewer, less cogent analyses” and thus would be less able to
disseminate information to the public. The court found that
Microsoft's need was not compelling when balanced against the First
Amendment protection.
Other asserted bases for the privilege are that interference with
ongoing research, especially scientific research, could occur if data
were forced to be disclosed, and the potential for publishing research
in peer reviewed or other scholarly publications could be harmed.
This last asserted rationale has met with little success in the courts.
See Burka v. United States Department of Health and Human
Services, 87 F.3d 508 (D.C. Cir. 1996) (stating that there is not an
established or well-settled practice of protecting research data on the
ground that disclosure would harm a researcher's publication
prospects).
Several federal and state statutes protect research and sources of
academic researchers, although in limited areas, such as drug
research. See, e.g., 21 U.S.C. §872(c) (2000) (drug research); Cal.
Health & Safety Code §11603 (West 1991) (drug research); N.Y.
Pub. Health Law §3371 (McKinney 2002, Supp. 2005) (drug
research). Courts have generally been reluctant to recognize a
scholar's privilege. See In re Grand Jury Subpoena, 750 F.2d 223
(2d Cir. 1984) (refusing to recognize scholar's privilege); In re Grand
Jury Proceedings (Scarce), 5 F.3d 397 (9th Cir. 1993); United States
v. Doe, 460 F.2d 328 (1st Cir. 1972). But see Richards of Rockford,
Inc. v. Pacific Gas and Elec. Co., 71 F.R.D. 388 (N.D. Cal. 1976).
1006

5. Peer Review Privilege

A peer review privilege has been claimed by both academic
institutions and hospitals to protect the confidentiality of the peer
review process, a process that ultimately determines which
candidates receive academic tenure and hospital privileges. The
justification for the privilege is the standard argument that compelled
disclosure of peer review evaluations would obstruct the free flow of
information that is essential to the integrity of the peer review
process. Without protection against disclosure, the quality of the
critiques would decline and less qualified candidates would be
promoted, with a resultant impact on the quality of our universities
and hospitals.
Notwithstanding such arguments, in University of Pennsylvania v.
EEOC, 493 U.S. 182 (1990), the Supreme Court refused to
recognize a federal privilege protecting the confidentiality of
academic peer review materials from disclosure. The claim arose out
of a race and sex discrimination suit brought by an associate
professor of the University of Pennsylvania. The Court held that the
privilege would not be recognized under either common law or First
Amendment grounds. The Court was “especially reluctant to
recognize a [common law] privilege” in an area where Congress,
under Title VII, has balanced the problem of “invidious”
discrimination in educational institutions against the interest of
academic autonomy “but has not provided the privilege itself.” The
Court refused to expand the protection of the First Amendment right
of academic freedom to embrace confidential peer review materials.
Before the decision, a majority of federal courts of appeals had
recognized a qualified peer review privilege in the academic setting.
In the hospital setting, federal and state courts have generally
declined invitations to establish a peer review privilege judicially. See
Memorial Hosp. v. Shadur, 664 F.2d 1058 (7th Cir. 1981); Robinson
v. Magovern, 83 F.R.D. 79 (W.D. Pa. 1979). Several states have
enacted statutes that accord protection to the hospital peer review
process. See, e.g., Mich. Comp. Laws Ann. §333.21515 (West
2001). Some states have included an exception to provide for
disclosure in the area of discrimination suits. See, e.g., Cal. Evid.
Code §1157(c) (West 1995). Even though some courts recognize the
privilege, it has been narrowly construed to allow plaintiffs to uncover
evidence of wrongdoing. In Moretti v. Lowe, 592 A.2d 855, 857 (R.I.
1991), the court held that while the internal communications and
deliberative processes of a peer review committee were privileged,
the effect of those proceedings was not. Thus, the plaintiff in a
medical malpractice action could discover whether a particular nurse
had been disciplined by her hospital review committee. The court in
Moretti also said that the privilege did not protect the identity of
persons who might serve on peer review committees or who have
given information to such committees.
The privilege also does not protect pre-existing documents that
have been turned over to the peer-review committee. Roach v.
Springfield Clinic, 157 Ill. 2d 29, 40-42, 623 N.E.2d 246, 251 (1993).
In Roach, the court stated:
If the simple act of furnishing a committee with earlier acquired information were
sufficient to cloak that information with the statutory privilege, a hospital could
effectively insulate from disclosure virtually all adverse facts known to its medical staff,
with the exception of those matters actually contained in a patient's records.

1007

On the other hand, the medical peer review privilege covers every
exchange of information taking place during peer review, which
includes communication of objective facts. See Krusac v. Covenant
Medical Center, Inc., 865 N.W.2d 908 (Mich. 2015). To prove any
such fact, a party needs to call a direct witness and would not be
able to compel disclosure of the privileged communication.
Communications taking place as part of a peer review proceeding
receive full protection and are generally not disclosable. See Allred v.
Saunders, 342 P.3d 204 (Utah 2014).
For a decision upholding the privilege under difficult circumstances,
see Jackson v. Scott, 667 A.2d 1365 (D.C. Ct. App. 1995). In this
case, the defendant hospital's review of deaths during cardiac
surgery revealed evidence of gross negligence. A confidential
informant, who “had to [have been] in the operating room” during the
surgery performed on the plaintiff's wife, revealed that the surgery
was “very mismanaged,” resulting in the patient's death. The court
upheld the hospital's claim of privilege regarding its internal
investigation of the death. Relying on the District of Columbia's
Health Care Peer Review Act of 1992, D.C. Code §§32-501 et seq.,
the court stated that the privilege was unqualified. Defense
witnesses testified, without mentioning the internal report, that the
hospital was not negligent in the patient's death. The court
nevertheless held that, under a plain reading of the statute, the
report could not be used for impeachment purposes.

6. Self-evaluative Privilege
A privilege similar to the peer review privilege, the “self-critical
analysis privilege” has been asserted in the corporate context. The
privilege is often asserted by companies with affirmative action
policies, to protect against disclosure of intracorporate
communications made during the employee review process and
against disclosure of compliance investigations done by the
corporation. The asserted justification for the privilege is that forcing
disclosure of these communications will have a chilling effect on
compliance with equal employment opportunity laws. In Aramburu v.
Boeing Co., 885 F. Supp. 1434 (D. Kan. 1995), the court refused to
recognize the privilege in a Title VII case. Relying on University of
Pennsylvania v. EEOC, the court stated that it was reluctant to
recognize such a privilege when it appeared that Congress had
considered the issue but had failed to provide for the privilege. 885 F.
Supp. at 1440. Similarly, the court in Roberts v. Hunt, 187 F.R.D. 71
(W.D.N.Y. 1999), found that the Supreme Court, in rejecting a “peer
review” privilege in University of Pennsylvania, implicitly rejected the
rationale for a self-evaluation privilege and thus left the privilege
unavailable under federal law.
However, some lower federal courts have recognized this privilege.
See, e.g., Troupin v. Metropolitan Life Insurance Company, 169
F.R.D. 546 (S.D.N.Y. 1996) (recognizing the privilege where “an
intrusion into the self-evaluative analyses of an institution would
have an adverse effect on the [evaluative] process, with a net
detriment to a cognizable public interest”); Reichhold Chemicals, Inc.
v. Textron, Inc., 157 F.R.D. 522 (N.D. Fla. 1994) (collecting cases
recognizing self-critical analysis privilege); Banks v. Lockheed-
Georgia Co., 53 F.R.D. 283 (N.D. Ga. 1971) (recognizing

1008

privilege in employment discrimination case). For a discussion, see

Ronald J. Allen and Cynthia M. Hazelwood, Preserving the
Confidentiality of Internal Corporate Investigations, 12 J. Corp. L.
355 (1987).
Congress has created a privilege for state and local governments,
similar to the self-evaluative privilege, in the context of highway
safety. In order to promote highway safety, in 1973 Congress created
a hazard elimination program for public roadways, providing federal
funds for states to identify, study, and eliminate hazardous conditions
on the nation's roads. 23 U.S.C. §152. The program required the
states to conduct surveys and collect data on accident statistics in
order to identify potentially hazardous sites. Id. Although the program
provided a mechanism to enhance highway safety, the information
collected by the states became a potential liability, due to the threat
of discovery in lawsuits against the states. In response to these
threats and in the interest of obtaining the best possible information
from the states to enhance highway safety, Congress enacted a
statutory privilege similar to the self-evaluative privilege, protecting
information collected by states for enhancing safety and improving
hazardous roadways. 23 U.S.C. §409 (1995). The statute provides
as follows:
[R]eports, surveys, schedules, lists, or data compiled or collected for the purpose of
identifying evaluating, or planning the safety enhancement of potential accident sites,
hazardous roadway conditions, or railway-highway crossings, pursuant to sections 130,
144, and 152 of this title [23 U.S.C.S. §130, 144, and 152] or for the purpose of
developing any highway safety construction improvement project which may be
implemented utilizing Federal-aid highway funds shall not be subject to discovery or
 admitted into evidence in a Federal or State court proceeding or considered for other
purposes in any action for damages arising from any occurrence at a location
mentioned or addressed in such reports, surveys, schedules, lists, or data. 23 U.S.C.
§409.

Although the statute establishes a federal privilege, the statute was

challenged in the case of Pierce County v. Guillen, 537 U.S. 129
(2003). In Guillen, a widower filed a negligence suit against a county
government and sought discovery of information obtained by the
county relating to the intersection where his wife had been killed in
an automobile accident. Id. The Supreme Court held that the statute
was within the scope of Congress's power under the Commerce
Clause, and that Ҥ409 protects all . . . data actually compiled or
collected for §152 purposes, but does not protect information that
was originally compiled or collected for purposes unrelated to §152
and that is currently held by the agencies that compiled or collected
it, even if the information was at some point 'collected' by another
agency for §152 purposes.” Id. at 144. Under this interpretation, an
accident report collected only for law enforcement purposes and held
by the county sheriff would not be protected under §409 in the hands
of the county sheriff, even though that same report would be
protected in the hands of the Public Works Department, so long as
the department first obtained the report for §152 purposes. Id. This
interpretation confined the privilege to road-improving activities
funded by the federal government and minimized Congress's
incursion into state rules of evidence. See Alex Stein, Constitutional
Evidence Law, 61 Vand. L. Rev. 65, 102-103 (2008).
Although the development of a general self-evaluative privilege in
the cases has been spotty, numerous statutes protecting discrete
interests have been passed,

1009

particularly in the states. A good example is Oregon's

environmental audit privilege for reports prepared as a result of
voluntary environmental audits designed to assure compliance with
the state's environmental laws. The privilege is thorough, protecting
virtually all materials created for and during the audit. It protects the
information from both private and governmental parties, even when
filing a report is mandatory, and courts may not make case-by-case
determinations whether disclosure would best serve the public
interest. Similar, but sometimes less expansive, statutes have been
passed in ten other states. For a discussion, see Peter Gish, The
Self-critical Analysis Privilege and Environmental Audit Reports, 25
Envtl. L. 73 (1995).

7. Government Privileges—Executive Privilege

The Executive Branch has been the focus of most of the discussion
of whether evidentiary privileges should be created to protect
confidential communications within the government. But see United
States v. Gillock, 445 U.S. 360 (1980) (holding that there is no
privilege for state legislator in federal prosecution). The term
executive privilege includes several different categories of privileges
for governmental secrets. First, the state secrets privilege protects
military, diplomatic, or sensitive national security secrets. Second,
the qualified presidential communications privilege protects
confidential conversations between the president and the president's
advisers (e.g., the members of the cabinet). Last, there are privileges
to protect a wide range of official information, such as law
enforcement files and governmental agency deliberations.
a. State Secrets Privilege
The state secrets privilege protects against the disclosure of highly
secret military and diplomatic information. Here the concern is that
the release of such information might endanger the public or harm
the nation. The privilege has protected such information as FBI
activities, see In re United States, 872 F.2d 472 (D.C. Cir.), cert.
dismissed sub nom. United States v. Albertson, 493 U.S. 960 (1989);
missile technology, see Bentzlin v. Hughes Aircraft Co., 833 F. Supp.
1486 (C.D. Cal. 1993); radar system capabilities, see Zuckerbraun v.
General Dynamics Corp., 935 F.2d 544 (2d Cir. 1991); and
diplomatic conversations, see Attorney Gen. v. Irish People, Inc., 502
F. Supp. 63, 64-65 (D.D.C. 1980).
 In United States v. Reynolds, 345 U.S. 1 (1953), the Supreme
Court provided a thorough examination of the state secrets privilege.
According to the court, the government is the exclusive holder of the
privilege. The privilege must be formally invoked by the head of the
government department concerned, after “actual personal
consideration” by that executive official. In deciding on a claim of the
privilege, the standard to be applied is whether there is a reasonable
danger that disclosure will harm national security. If the reasonable
danger standard is met, the privilege is absolute. The court noted
that “even the most compelling necessity cannot overcome the claim
of privilege if the court is ultimately satisfied that military secrets are
at stake.” In Black v. United States, 62 F.3d 1115 (8th Cir. 1995), the
court dismissed

1010

a harassment suit against federal intelligence agencies where

litigation would necessarily breach the state secrets privilege. Black
was an electrical engineer who had government security clearance
to work on defense projects with various contractors. After a Soviet
mathematician at a lecture in Zurich allegedly asked him
suspiciously intrusive questions, Black reported the contact to the
U.S. Consulate and soon thereafter his security clearance was
“unplugged.” He claimed that he was the victim of harassment and
psychological attack and sued the United States for the actions of
the CIA, FBI, and Department of State. R. James Woolsey, Director
of the CIA, formally invoked the state secret privilege and asserted
that litigation of the claim would result in the disclosure of highly
sensitive names, dates, and locations of U.S. counterintelligence
operations. The lower court reviewed the documents in camera and
dismissed all of the claims. The Court of Appeals affirmed the
decision, according the “utmost deference” to the executive's
determination of the impact of disclosure.
Whether the privilege is claimed in a criminal or civil proceeding,
the denial of discovery will dramatically affect the opposing party's
preparation of the case. In both criminal and civil proceedings, the
court may order dismissal as it did in Black or other less drastic
relief, such as striking particular testimony of a witness or finding
against the government on a particular issue.
The Supreme Court's decision in General Dynamics Corp. v.
United States, 563 U.S. 478 (2011), provides a vivid illustration for
how the state secrets privilege works. After General Dynamics fell
behind the agreed-upon schedule for developing a stealth aircraft for
the Navy, the government rescinded the agreement that promised
the company $4.8 billion and demanded the return of approximately
$1.35 billion it paid the company for work it never accepted. The
company argued that the government failed to share with it its
“superior knowledge” about how to design the aircraft. The
government for its part refused to disclose relevant information
because it was a top military secret. As a result, the trial court was
unable to adjudicate the company's facially plausible affirmative
defense of “superior knowledge.” The Supreme Court decided that
neither party should be granted relief. The company should receive
no further payments under its $4.8 billion contract with the
government, and the government should not recover from the
company $1.35 billion in restitution. As Justice Scalia explained,
“Neither the question whether [the company was] in default nor the
question whether performance of the entire contract would have left
[it] with a loss can be judicially determined because of the valid
assertion of the state-secret privilege.” For that reason, “We leave
the parties where they are.”
The Classified Information Procedures Act (CIPA), 18 U.S.C. app.
§§1-16 (2013), grants statutory recognition to the state secrets
privilege in the area of criminal proceedings. The Act sets forth
detailed procedures governing a criminal defendant's efforts to
reveal or to obtain discovery of classified information and was
passed by Congress in 1980 to address the defense tactic known as
“graymail.” The defendant who threatens to disclose classified
information creates a dilemma for the government. It must either
dismiss the charges against the defendant or allow the disclosure of
sensitive information. The goal of CIPA is to provide pretrial
procedures for the resolution of discovery and admissibility issues.
1011

CIPA primarily functions in two ways. Section 5 requires

defendants to notify the government of its intention to disclose
classified information in the course of presenting a defense. Pretrial
hearings on discovery and admissibility of evidence are governed by
§§4 and 6. Section 4 expands on Federal Rule of Criminal
Procedure 16 and permits courts to authorize the United States to
delete specific classified information from documents, to substitute a
summary of the information, or to substitute a statement admitting
relevant facts that the classified information would tend to prove.
Section 6 provides a pretrial hearing to determine relevance, §6(a),
and a pretrial hearing to determine whether the substitutions offered
in lieu of the classified documents provide the defendant with
“substantially the same ability to make his defense as would
disclosure of the specific classified information,” §6(c).
“Graymail” may not be just a sneaky defense tactic but may be the
result of legitimate efforts to prepare a criminal defense. Several
high-profile defendants have raised the question of the
constitutionality of CIPA because of the limitations it places on
defendants' ability to launch effective defenses. In United States v.
North, 708 F. Supp. 399 (D.D.C. 1988), the defendant, Oliver North,
filed a written statement of relevant and material testimony he
expected to disclose during the course of the trial for the court to
consider in a pretrial hearing. North later objected to the fulfillment of
the CIPA provision requiring the disclosure of the statement to the
Independent Counsel on the grounds that it would violate his Fifth
and Sixth Amendment rights. The court held that the Fifth
Amendment due process claim was meritless because modern
litigation involves extensive pretrial discovery and additionally, North
had been given access to much of the government's information and
witnesses. Similarly, the Sixth Amendment right to effective
assistance of counsel argument was found by the court to be
unpersuasive because North would still be able to call or not to call
witnesses, and the tactical disadvantage of minimizing surprise
would be “slight.” The court held CIPA to be facially constitutional.
 Since North, courts have consistently upheld the constitutionality of
CIPA against arguments asserting the violation of due process, the
Fifth Amendment privilege against self-incrimination and the right to
remain silent unless and until one decides to testify, the Fifth and
Sixth Amendment rights to testify in one's own defense, and the
Sixth Amendment right to cross-examine witnesses. See United
States v. McVeigh, 923 F. Supp. 1310 (D. Colo. 1996) (finding it
unnecessary to reach the issue of the constitutionality of CIPA);
United States v. Wen Ho Lee, 90 F. Supp. 2d 1324 (D.N.M. 2000)
(denying the defendant's motion to find §§5 and 6 of CIPA
unconstitutional); United States v. Bin Laden, 2001 U.S. Dist. LEXIS
719 (S.D.N.Y. Mar. 20, 2001) (denying the defendant's motion to find
CIPA unconstitutional as it applies to him). For contemporary
discussions of the privilege and empirical data regarding its use, see
Daniel R. Cassman, Note, Keep it Secret, Keep it Safe: An Empirical
Analysis of the State Secrets Doctrine, 67 Stan. L. Rev. 1173 (2015)
(finding that post 9/11 the state secrets privilege has been invoked
more frequently than before, but courts continued to uphold and
deny it at roughly the same rate); Laura K. Donohue, The Shadow of
State Secrets, 159 U. Pa. L. Rev. 77 (2010) (identifying and
analyzing new graymail strategies followed by companies litigating
against the government).

1012
b. Presidential Communications Privilege

President Jefferson first sought to maintain the confidentiality of

presidential communications in United States v. Burr, 25 F. Cas. 187
(C.C. Dist. Va. 1807) when Chief Justice Marshall issued two
subpoenas for letters written by General Wilkinson to the President.
Jefferson asserted an exclusive right to the papers and resisted the
subpoenas. Since that time, several presidents have invoked the
privilege but United States v. Nixon provided the first clear
description of its parameters.
In United States v. Nixon, 418 U.S. 683 (1974), the Supreme Court
addressed whether a privilege exists to protect confidential
communications between the president and the president's close
advisors. President Nixon raised three claims: that the separation of
powers doctrine precludes judicial review of a President's claim of
privilege; that the Constitution provides an absolute privilege of
confidentiality for all presidential communications; and alternatively,
that the “presumptive” privilege for presidential communications
should prevail over the subpoena in question. The Court, quoting
Marbury v. Madison, reaffirmed that “it is the providence of this Court
'to say what the law is' with respect to the claim of privilege
presented in this case,” thus asserting the appropriateness of judicial
review. The Court went on to recognize a constitutionally based
privilege derived from the separation of powers, but noted that the
presidential communications privilege is a qualified one. The Court
stated that the privilege “must yield to the demonstrated, specific,
need for evidence in a pending criminal trial.”76 In recognizing the
qualified privilege, the Court noted that the presidential need for
confidentiality justified a presumptive privilege for presidential
communications. The burden rests with the person seeking
discovery of the information to rebut the presumption of privilege.
Moreover, in conducting an in camera inspection, the trial court must
use “scrupulous protection” to ensure that presidential
communications that are not relevant or admissible are not
disclosed. The privilege may be stronger in civil proceedings. In
Cheney v. U.S. Dist. Court for Dist. of Columbia, 542 U.S. 367
(2004), a case involving the assertion of executive privilege to
prevent disclosure of the names of certain de facto members of the
National Energy Policy Development Group, the court stated that
“[t]he need for information for use in civil cases, while far from
negligible, does not share the urgency or significance of the criminal
subpoena requests in Nixon.” Id. at 2589. See Mark J. Rozell,
Symposium: Executive Privilege and the Clinton Presidency, 8 Wm.
& Mary Bill of Rts. J. 541 (2000) (arguing that presidents should use
the power only for the most compelling reasons and not to protect
information that is merely embarrassing or politically damaging, and
proposing that each administration adopt guidelines for its members
with formal procedures for handling and resolving executive privilege
issues).

1013

In re Sealed Case, 121 F.3d 729 (D.C. Cir. 1997), provided the
District of Columbia Court of Appeals with the opportunity to
determine how far beyond direct communications with the President
the presidential communications privilege might reach. As part of a
grand jury investigation of former Secretary of Agriculture Mike Espy,
the Office of the Independent Counsel tried to compel performance
of a subpoena duces tecum issued by the grand jury and served on
the Counsel to the President. The White House provided many of the
requested documents but withheld 84 as privileged. The court held
that the presidential privilege extends “down the line” from the
President to his aides and advisors whenever they are in the “course
of preparing advice” for the President even when they are not
communicating directly with the President. The court found that all of
the 84 documents—authored by White House Counsel, Deputy and
Associate White House Counsel, legal externs to the White House
Counsel's office, the Chief of Staff, the Press Secretary, and even
three “no authored” documents—were privileged. The Office of the
Independent Counsel, however, was given the opportunity on
remand to demonstrate “sufficient need” in order to overcome the
presidential communications privilege. The court sought to strike the
“appropriate balance between openness and informed presidential
deliberation.”77 In In re Sealed Case, 148 F.3d 1073 (D.C. Cir.
1998), cert. denied sub nom. Rubin v. United States 525 U.S. 990
(1998), the Government sought to extend the executive privilege to
create a “protective function privilege” that would shield Secret
Service agents from testifying. The Secret Service resisted the
Independent Counsel's subpoena of 33 Secret Service officers to
testify about their knowledge of President Clinton's affair with White
House intern Monica Lewinsky. The Secret Service proposed an
“absolute privilege that would preclude the OIC from compelling any
testimony regarding information learned by Secret Service agents
and officers while performing protective functions in physical
proximity to the President where the information would tend to reveal
the President's contemporaneous activities.”78 The court considered
the three factors detailed by the Supreme Court in Jaffee (page 972,
supra). It found that the privilege is not based in federal law79 and
Secret Service officers have testified previously;80 the privilege is
not supported by state precedents though the same need would
presumably exist for state governors; and while there is a strong
public policy interest in ensuring the safety of the President, the
President will not resist the closeness of his protectors because of
his own interest in his safety and

1014

because he is required by law to accept protection.81 The court

held that the absence of federal and state precedents and the Secret
Service's failure to establish the need for the protective function
privilege prevented its creation by the judiciary at this time.
c. Official Information (Deliberative Process) Privilege
The official information privilege exists to protect government
deliberative processes and provides a limited executive privilege for
executive officers other than the President. Not surprisingly, the
rationale is that compelled disclosure of such communications would
inhibit the exchange of opinions and advice among executive
officials, and thereby impair the decisionmaking process. A related
justification for the privilege is that the judiciary is not authorized to
probe the mental processes of an executive or administrative officer.
In re Franklin National Bank Securities Litig., 478 F. Supp. 577, 580-
581 (E.D.N.Y. 1979). The privilege is the government's. Examples
are government agency policy deliberations and law enforcement
investigatory files. Both Proposed FRE 509 and the exemption
provisions of the Freedom of Information Act, 5 U.S.C. §552 (1994),
address the need for protection of such official information.
 A qualified privilege protecting official information has been widely
accepted by the federal courts. See, e.g., Kelly v. City of San Jose,
114 F.R.D. 653 (N.D. Cal. 1987); United States v. Board of Educ. of
City of Chicago, 610 F. Supp. 695 (N.D. Ill. 1985); Kinoy v. Mitchell,
67 F.R.D. 1 (S.D.N.Y. 1975). In In re “Agent Orange” Product Liability
Litig., 97 F.R.D. 427, 434 (E.D.N.Y. 1983), the court described the
limited scope of the privilege:
[The privilege] applies only to material reflecting [the] deliberative process—
evaluations, expressions of opinions, and recommendations on policy matters. . . . Raw
data and factual findings do not fall within the scope of the privilege because
disclosures of facts, as opposed to opinions, would not hinder candor among
government officials.

The D.C. Court of Appeals in In re Sealed Case, 121 F.3d 729

(1997), reiterated this requirement that the material be “deliberative”
and not merely factual and also emphasized that it must be
“predecisional.” Furthermore, the court noted that the privilege is not
absolute and may be overcome by a showing that the need for
evidence in the specific case outweighs the harm that would result
from disclosure. Quoting In re Subpoena Served Upon the
Comptroller of the Currency, 967 F.2d 630 (D.C. Cir. 1992), the court
described the appropriate test:
“Each time [the deliberative process privilege] is asserted the district court must
undertake a fresh balancing of the competing interests,” taking into account factors
such as “the relevance of the evidence,” “the availability of other evidence,” “the
seriousness of the litigation,” “the role of the government,” and the “possibility of future
timidity by government employees.”
In Dellwood Farms v. Cargill, Inc., 128 F.3d 1122 (7th Cir. 1997),
private civil plaintiffs sought materials gathered by the Department of
Justice for use in criminal investigations. The FBI had been
investigating charges of price fixing by Archer Daniels

1015

Midland and other agricultural producers. The FBI recorded more

than 150 hours of conversations within ADM and between ADM and
its competitors. The government, without seeking any confidentiality
agreement, played some of the recordings to the law firm
representing ADM's outside directors to induce ADM to plead guilty
to the criminal antitrust offenses. The plaintiffs in this civil case
subpoenaed the tapes in the hope that they contained evidence of
illegal conspiracy. The Department of Justice attempted to block the
subpoena with the law enforcement investigatory privilege. The court
held that the subpoena should be quashed because, though the
privilege is not absolute and can be overridden through a showing of
need, there ought to be a “pretty strong presumption” against lifting
the privilege. It reasoned that crime investigation is the duty of the
Executive Branch and it is inappropriate for the courts to be “thrust
too deeply” into the process. Since the Freedom of Information Act
would make the information available after the criminal trial is over,
the court said, the civil suit could be postponed to await its release.
The plaintiffs additionally raised the issue of waiver since the
Department of Justice had voluntarily played the recordings for
ADM's lawyers. The court found that there had been a mere
“selective waiver,” described as the situation where, “having
voluntarily disclosed privileged information to one person, the party
who made the disclosure asserts the privilege against another
person who wants the information.” The court acknowledged that the
government should have been more careful and obtained a
protective order against further disclosure, as is normally required in
selective disclosure cases. This error, however, the court said,
should not be punished too harshly because there was no deliberate
waiver of the privilege; to withhold the tapes from the plaintiffs and
interference with criminal investigation would be an “excessive
punishment.”
The Supreme Court finally addressed the relationship between the
official government information privilege and the Freedom of
Information Act in United States v. Weber Aircraft Corp., 465 U.S.
792 (1984). The engine of an Air Force aircraft had failed, and the
pilot was severely injured when he was ejected from the plane. He
sued several entities responsible for the design and manufacture of
his plane's ejection equipment. After the crash, the Air Force
conducted both a “collateral investigation,” designed to preserve
evidence for use in whatever claims may ensue, and a “safety
investigation,” designed solely to permit corrective action to be taken
in order to reduce the risk of similar occurrences. During safety
investigations, witnesses are not sworn and are promised complete
confidentiality. Lower courts had previously held the results of such
investigations to be privileged from discovery, a holding the Supreme
Court embraced. The plaintiff thus attempted to obtain the same
information through a FOIA request, to which the Court responded:
[R]espondents' contention that they can obtain through the FOIA material that is
normally privileged would create an anomaly in that the FOIA could be used to
supplement civil discovery. We have consistently rejected such a construction of the
FOIA. We do not think that Congress could have intended that the weighty policies
underlying discovery privileges could be so easily circumvented. [Id. at 801-802.]
After the passage of the Freedom of Information Act in 1967, many
private litigants sought to use the new act rather than the normal
rules of discovery to obtain information

1016

from the government in judicial proceedings. In NLRB v. Sears,

Roebuck & Co., 421 U.S. 132 (1975), however, the Court examined
the relationship between Exemption 5 of the FOIA and governmental
privileges. The Court expressly found that Exception 5 contains a
deliberative process privilege and a work product privilege and
implied that a governmental attorney-client privilege should be
recognized as well.
The Freedom of Information Act lists what each governmental
agency must make available to the public and how the information is
to be made accessible. There are several exceptions that allow
agencies to maintain the confidentiality of some materials including
those containing: matters of national defense or foreign policy,
internal personnel rules, privileged or confidential trade secrets or
financial information, geological or geophysical information and data
concerning wells, and records or information compiled for law
enforcement purposes to the extent that disclosure would interfere
with enforcement, deprive a person of the right to a fair trial,
constitute an unwarranted invasion of personal privacy, reveal the
identity of a confidential source, endanger the life or physical safety
of any individual, or disclose techniques and procedures for law
enforcement investigations or prosecutions.
Exception 5 to the FOIA, which excludes inter-agency or intra-
agency communications, has allowed agencies to resist disclosure of
information by claiming the deliberative process privilege. The
Supreme Court defined the deliberative process as covering
documents “reflecting advisory opinions, recommendations and
deliberations comprising part of a process by which governmental
decisions and policies are formulated.” NLRB v. Sears, Roebuck &
Co., 421 U.S. 132, 150 (1975) (quoting Carl Zeiss Stiftung v. V.E.B.
Carl Zeiss, Jena, 40 F.R.D. 318, 324 (D.C. 1966)).
In Department of the Interior and Bureau of Indian Affairs v.
Klamath Water Users Protective Association, 532 U.S. 1 (2001), the
Supreme Court addressed for the first time the question of whether
the deliberative process privilege could be extended to cover
communications between government agencies and “outsiders.” The
Klamath Water Users, an association of water users in the Klamath
River Basin, filed requests under the FOIA for communications
between the Bureau of Indian Affairs and the Native American Tribes
of the area, regarding the allocation of water. The Bureau had
consulted with the Tribes on the proposed Klamath Project Operation
Plan in efforts to assess the likely impact of the plan. The Bureau
sought to invoke the deliberative process privilege of Exception 5 to
resist the plaintiffs' request for information. The Court acknowledged
that courts have extended the privilege to communications between
governmental agencies and outside consultants82 but rejected the
Bureau's portrayal of the Tribes as filling this sort of role. The Tribes,
the Court found, had communicated with the Bureau with their own
interests in mind and had acted as “self-advocates at the expense of
others seeking benefits inadequate to satisfy everyone.”

1017

The Court thus rejected the intra-agency nature of the

communications and held that they could not be exempted from
discovery under Exception 5.
 In the states, the extent of the protection afforded depends on the
type of official information at issue. For example, in the context of
government agency deliberations, a majority of states have
recognized a qualified privilege based on the federal rule. In the
context of law enforcement records, some states have enacted
statutory privileges to protect the information, while others have
conferred some level of protection through the more general
“classified” official information statutes. Where a disclosure statute
such as a state Freedom of Information Act is in effect, the statute
takes precedence in determining the scope of protection.
In order to prevail on a claim of the official information privilege, the
agency official asserting the privilege typically must specifically
identify what government interest or privacy interest would be
threatened by disclosure and describe how disclosure, even if made
under a protective order, would create a substantial risk of harm.
Chism v. County of San Bernadino, 159 F.R.D. 531, 534 (C.D. Cal.
1994). In Chism, the court held that a deputy sheriff's declaration
failed to show that documents produced during an internal review of
an allegedly unjustified shooting were protected by the official
information privilege. The court said that a general assertion that the
police department's internal investigatory system would be harmed
by disclosure of its documents was insufficient. This information was
presumptively discoverable because information in police files is
often developed closer in time to the events in question, and
therefore substantially comparable evidence is not available from
other sources.
The official information privilege often arises in cases involving
alleged violations of civil rights by police officers under 42 U.S.C.
§1983 where plaintiffs want to discover the personnel records of
police officer defendants. Despite the fact that many states have
statutes protecting the confidentiality of these records, see, e.g.,
Kansas Open Records Act, Kan. Stat. Ann. §45-221(4) (2000); Cal.
Penal Code §§832.7, 832.8 (Supp. 2005), and despite the fact that
there are comparable confidentiality provisions for federal officers, 5
U.S.C. §552(b)(6) and (b)(7)(c), federal courts have been reluctant to
recognize a privilege for police officer personnel records in §1983
cases. See, e.g., Mason v. Stock, 869 F. Supp. 828 (D. Kan. 1994);
see also Welsh v. City and County of San Francisco, 887 F. Supp.
1293 (N.D. Cal. 1995).

8. Miscellaneous Privileges
While the material above has covered the major privileges, there are
in fact numerous other privileges found in case law and state
statutes. This means that lawyers have to research, and research
carefully, to see what privileges apply in their jurisdiction or that may
be idiosyncratic to their case. Some state statutes affect the breadth
of the otherwise general privileges discussed above. For example,
statutes passed by some states to address domestic abuse victims
effectively reduce the scope of the marital communication and
physician-patient privileges that would otherwise be applicable. See,
e.g., C.R.S. 18-6-401.1 (2009) (“The statutory privilege between the
victim-patient and his physician and between the husband and the
wife shall not be available

1018

for excluding or refusing testimony in any prosecution of an act of

child abuse.”). Other statutes are passed to reach discrete areas that
may not otherwise be covered by general privileges. For example,
Illinois protects information disclosed to a licensed genetic counselor,
225 Ill. Comp. Stat. 135/90 (2010); Delaware recognizes a specific
type of self-evaluative privilege for hospitals, 16 Del. C. §1010A
(2010); Connecticut privileges information gathered by mediators in
labor disputes, Conn. Gen. Stat. §31-96 (2010); and Georgia does
not require information gathered during the licensing stage of
blasting operations to be turned over, Ga. Code Ann. §25-8-11
(2010). Case law similarly affects the privileges available in any
jurisdiction. Two examples that have been accepted in some
jurisdictions, and of which lawyers should be aware, are the
common-interest or joint-defense privilege—protecting
communications focused on creating a defense strategy with others
who are similarly situated—and the absolute privilege protecting
information disclosed in judicial proceedings. Many more privileges
are potentially available in any litigation; an attorney is well advised
to check local statutes and case law before disclosing any
document.

PROBLEMS
12.29. Michael McKinley is being prosecuted in Ireland for directing
terrorism. He has asked the district court for an order to
produce a tape recording that he believes will help him in
cross-examining David Rogers, a key prosecution witness.
The tape recordings are held by journalists who conducted
interviews with Rogers for a contracted biography that they
are writing. Rogers has not objected to the discovery, but the
journalists have challenged, asserting the journalist's privilege.
What result?
12.30. Ryan has lived with his grandmother for 15 years, all but a
few months of his life, and she has always supported him
financially and otherwise. Ryan has been charged with a
crime and the prosecution is seeking to elicit the testimony of
his grandmother about his statements to her following the
alleged crime. Ryan's defense attorney objects on the ground
that such statements were confidential and should be
protected from disclosure under the parent-child privilege that
is recognized in the state. Should the court permit testimony
relative to statements made by Ryan to his grandmother?
12.31. All 230 persons aboard TWA flight 800 were killed when it
exploded over the Atlantic Ocean on July 17th, 1996. The
United States salvaged much of the wreckage and secured it
in a building in Calverton, New York, to be used in the
investigation of the accident. Sanders, an investigative
journalist, pursued the hypothesis that a missile had caused
the explosion and spoke with Captain Terrell, a senior 747
pilot with TWA who was involved in the investigation. Captain
Terrell told Sanders that a “reddish” substance had been
 found on some of the seats that might be residue from an
explosive. He later provided Sanders with a small portion of
the substance that had been removed from the wreckage.
Sanders wrote a book entitled The Downing of TWA Flight
800

1019

in which he reported that this “reddish” substance tested consistent

with the presence of solid rocket fuel. The FBI began
investigating Sanders for violation of 49 U.S.C. §1155(b),
which bans the unauthorized removal of “a part of a civilian
aircraft involved in an accident.” The government offered
Sanders a nonprosecution agreement in exchange for the
name of his confidential source but Sanders refused. After the
government discovered his identity through other sources,
Captain Terrell testified against Sanders in return for a
reduction of his offense to a misdemeanor. Sanders argues
that the journalist's privilege bars government coercion to
disclose news sources and thus urges the court to use a
balancing test weighing “the governmental interest served by
prosecution” against “the detrimental impact of permitting such
a prosecution to be used as a means of coercing disclosure of
a journalist's source.” Should the court hold that the
journalist's privilege prevents prosecution from being used in
this way?
12.32. Dr. Tambone has filed a complaint against Memorial Hospital
for restraint of trade in violation of federal and state antitrust
laws. He alleges that the physicians of Memorial Hospital
have used the peer review and disciplinary process to exclude
him from its medical staff, effectively destroying his practice.
Dr. Tambone claims that he was the victim of a sham
disciplinary proceeding that was used as a means of
implementing the alleged restraint of trade. To prove this
allegation he has sought discovery regarding the hospital's
treatment of other doctors in comparable disciplinary
 proceedings. Can the hospital resist disclosure of the
information under a peer review privilege?
12.33. The Federal Death Penalty Act of 1994 authorizes the death
penalty for more than 40 crimes and sets the procedure for
seeking the death penalty in federal cases. An Attorney
General's Death Penalty Committee (DPC) reviews each case
and conducts a meeting where the defendant's attorney may
try to persuade the government not to seek the death penalty.
The DPC then assists in advising the Attorney General as to
the ultimate decision whether to pursue the death penalty.
Defendant Jacobo is considered by the government to be a
member of the “Mexican Mafia” and has been charged with
murder in the furtherance of racketeering, an offence covered
by the Federal Death Penalty Act. Jacobo has sought to
discover information that might tend to mitigate the sentence
in his case, including information from the DPC meetings and
its completed “death penalty evaluation form.” The
government objects to the discovery request based on the
deliberative process privilege. Should the court allow it to
withhold this information from Jacobo?
12.34. USAID is a federal agency that oversees development
projects under the government's foreign assistance program.
USAID was involved in building a water treatment facility in
Egypt, financing the project to be carried out by an Egyptian
government agency. USAID hired a U.S. engineering firm,
CDM, to design the project, while the construction contract
was awarded to a joint venture (JV) between two companies.
Under the contract, the builders deal directly with the host
country, but USAID retains approval rights for significant
changes and additional compensation.

1020

The JV requested additional funds, but USAID refused after

CDM assessed that the request should be much lower, and
the parties have not been able to agree. USAID urged CDM to
 hire a consultant to evaluate the challenges to settlement.
CDM hired Richard J. Roy, providing that a report of his
findings was to be given only to USAID and the Egyptian
government agency, without disclosure to other parties.
A Freedom of Information Act (FOIA) request was filed with
USAID on behalf of the JV members for documents related to
the dispute, including the Roy Report, which USAID refused to
provide, arguing that the report was attorney work-product and
was privileged under the attorney-client privilege. A FOIA
lawsuit was filed in federal court alleging that USAID
unlawfully withheld the report. What result?

ASSESSMENTS
A-12.1. Attorney-Client Privilege, FRE 502. Pharmaceutical company Safe-Med (SM)
defends against a products liability suit in a New State court. During discovery, SM agreed
to give the plaintiff a copy of a letter from the company's general counsel. This letter urges
the company to discontinue the production of a certain drug. In a parallel diversity suit
before federal court, other plaintiffs demand the discovery of all letters and memos with
regard to the drug's production forwarded to SM by its general counsel. The plaintiffs base
this request on SM's waver of the attorney-client privilege under New State law. The federal
court should deny this request. TRUE or FALSE?
A-12.2. Attorney-Client Privilege. Attorney A represents client C in a tax fraud case. A
asks a certified public accountant, CPA, to prepare a report about C's financial activities and
their implications for the trial. Subsequently, the prosecution subpoenas CPA and demands
the production of the report. The prosecution also demands that CPA testify about her
conversations with A. All this information is privileged. TRUE or FALSE?
A-12.3. Attorney-Client Privilege. By suing an attorney for malpractice, the attorney's
client waives the attorney-client privilege with respect to all of her relevant communications
with the attorney. TRUE or FALSE?
A-12.4. Attorney-Client Privilege. When a convicted defendant files a habeas petition
alleging ineffective assistance of counsel, he can keep the conversations he had with his
trial attorney fully confidential. TRUE or FALSE?
A-12.5. Physician-Patient Privilege. Federal law recognizes a qualified physician-patient
privilege. Communications between a physician and his patient are privileged in principle,
but the court can remove the privilege and order disclosure if the interests of justice so
require. TRUE or FALSE?
A-12.6. Attorney-Client Privilege. Shortly after a meeting with his attorney on a corporate
matter, Jim was arrested for driving while intoxicated. At his trial, the

1021
prosecutor calls Jim's attorney to the stand and asks her whether Jim appeared drunk
during the meeting. Jim objects to this question.
This objection should be:
A sustained on irrelevancy grounds.
B sustained, based on the attorney-client privilege.
C sustained for another reason.
D overruled.
A-12.7. Spousal Privileges. Steve stands trial for drug dealing. The prosecution
subpoenas Steve's wife, Mary, to testify that (1) She saw Steve hiding large quantities of
cocaine at the spouses' house; and that (2) Steve asked her to deliver the cocaine to Fred,
and she did so. Steve objects to Mary's testimony.
This objection should –
A succeed as to (1), but fail as to (2).
B succeed as to (2), but fail as to (1).
C succeed on both counts.
D fail on both counts.
A-12.8. Spousal Privileges. David Doe is tried for armed robbery of the Consolidated
Mutual Funds Bank (CMFB). He pleaded not guilty. His former wife, Wanda, testifies for the
prosecution that at the time that she and David were still married to each other, David told
her about his intention to rob CMFB.
Wanda's testimony is:
A admissible, but privileged.
B not privileged and admissible.
C both privileged and inadmissible.
D not privileged, but inadmissible.
A-12.9. Attorney-Client Privilege. Same facts as in A-12.9. David's former attorney, Axel,
testifies that at the time that he still represented David in connection with the case, David
advanced part of his fee, $9,000, with $100 bills. Axel also testifies that he kept those bills
and identified them in front of the judge and the jury. The bills were admitted into evidence
over David's objection after the prosecutors told the judge that they will adduce evidence
showing that the bills belonged to CMFB.
Axel's testimony is:
A admissible, but privileged.
B not privileged and admissible.
C both privileged and inadmissible.
D not privileged, but inadmissible.
A-12.10. Mental Therapist-Patient Privilege. Bystander B was caught in crossfire between
FBI officers and drug dealers. By mistake, officer Doe fired at and killed B. B's widow, W,
files a wrongful death action against the United States pursuant to the Federal Tort Claims
Act. She discovers that officer Doe had several meetings with C, FBI's psychological
therapist. Subsequently, officer Doe was killed in another FBI

1022
operation. W calls C to testify about those meetings. C and the United States contend that
the meetings are privileged.
A the meetings are privileged, and the court has no power to remove the privilege.
B in principle, the meetings are privileged, but the court can remove the privilege in the
interests of justice.
C after Doe's death, the meetings are not privileged.
D the meetings are not and have never been privileged.
A-12.11. State Secrets Privilege. Orr files a $12 million suit against the United States. The
suit is based on a written agreement that promises Orr $15 million in exchange for certain
spying activities in a foreign country hostile to the United States. The United States argues
that Orr is not entitled to any payment pursuant to the agreement because he failed to
deliver the promised information to the government. The United States also files a
counterclaim against Orr demanding that he return $3 million it paid him upfront.
Subsequently, the government invokes the state secrets privilege with respect to the
information that Orr was supposed to deliver.
A The government was not entitled to invoke the privilege after filing its counterclaim.
B The government was entitled to invoke the privilege, but the court can set it aside at its
discretion.
C The government was entitled to invoke the privilege, but the court might draw adverse
inferences against it in deciding whether Orr breached the agreement.
D The court must dismiss both Orr's suit and the government counterclaim.

ANSWERS
A.12.1. TRUE. FRE 502(c) prescribes for circumstances like these that the rule most
protective of the attorney-client privilege will apply and that disclosure of a single privileged
document will not be interpreted as a comprehensive transactional waiver of the privilege.
Because the waiver was document specific, and because it was made to the benefit of a
different party in a different proceeding, the plaintiffs will not be able to successfully claim,
pursuant to FRE 502(a)(1), (2), and (3), that they are entitled to see the entire
correspondence between SM and its attorney.
A-12.2. TRUE. CPA's information is protected by the work-product doctrine.
A-12.3. TRUE. This is one of the instances of an implicit waiver of the attorney-client
privilege with regard to all information pertaining to the quality of the attorney's work for the
client.
A-12.4. FALSE. This is one of the instances of an implicit waiver of the attorney-client
privilege. By raising an ineffective-assistance claim, the defendant waives the privilege with
regard to all information pertaining to how effectively he was represented

1023
by his counsel during trial. The defendant cannot claim ineffective assistance while hiding
behind the privilege.
A-12.5. TRUE. This qualified privilege exists under the Health Insurance Portability and
Accountability Act, see page 971.
A-12.6. The best answer is D. The defendant's attorney was requested to testify about her
client's appearance without revealing any communication between the two. A client's
appearance is not protected by the attorney-client privilege. Hence, answer B is wrong.
Answer A is wrong, too, because the attorney's testimony was relevant to the charges.
Answer C alludes to the possibility that the defendant's attorney was asked to provide
inadmissible opinion evidence. But testifying about whether a person you saw appeared
drunk only requires common sense, and so the attorney's testimony was admissible under
FRE 701. She was a regular percipient witness, and for that reason Answer C is false as
well.
A-12.7. The best answer is D. A criminal defendant's spouse is entitled not to testify against
him, but under federal law, this privilege does not belong to the defendant. Instead, it
belongs to the testifying spouse who has the unilateral power to decide whether s/he will
testify or not. In the case at bar, Steve's wife, Mary, chose to testify against him, and Steve
has no say on that matter. He can still invoke the marital communications privilege that
protects all confidential communications between married spouses. This privilege belongs
to both spouses, each of whom can veto the other spouse's testimony. Here, however, the
first part of Mary's testimony was about her observations, rather than communications with
Steve. As for the testimony's second part, Steve's and Mary's confidential communication
promoted a joint criminal goal, which triggers the “joint criminal enterprise” exception to the
privilege. Also, Mary was entitled not to testify on the self-incrimination privilege grounds,
but that privilege was hers, not Steve's, and so she could waive it. For these reasons,
Steve's objection fails on both counts.
A-12.8. The best answer is A. Wanda's testimony about David's incriminating statement
was admissible under the party-admission exception to the hearsay rule, FRE 801(d)(2)(A).
However, this testimony falls under the marital confidential communications privilege, which
can be invoked by any of the spouses. The “joint criminal enterprise” exception to that
privilege does not apply here because Wanda didn't join David's criminal enterprise. Her
testimony, therefore, is admissible but privileged.
A-12.9. The best answer is B. Axel's fee and the bills he received from David are not
protected by the attorney-client privilege because they are neither a communication
between an attorney and his client nor an attorney's work-product. The bills also constitute
evidence, which the privilege doesn't protect. Because those bills are relevant to the
accusations and Axel properly identified them pursuant to FRE 901(A), they are admissible.
A-12.10. The best answer is A. The Supreme Court made the mental therapist-patient
privilege absolute: see Jaffee v. Redmond, 518 U.S. 1 (1996); page 972.

1024
Hence, as under the attorney-client privilege, the “once privileged, always privileged”
principle applies here as well.
A-12.11. The best answer is D. This question is modeled on the Supreme Court's decision,
General Dynamics Corp. v. United States, 563 U.S. 478 (2011), discussed supra on page
1010, that dismissed the government's and the contractor's mutual claims. The
government's rightful invocation of the state secrets privilege hides crucial evidence and
renders the parties' dispute nonjusticiable.

1. In Chapter Six, we noted that similar utilitarian and nonutilitarian justifications provide
partial support for some of the relevance rules. See pages 360, 364, 367 supra.
2. For a more comprehensive historical analysis, see 21 Charles A. Wright & Kenneth W.
Graham Jr., Federal Practice and Procedure: Evidence §5001-5005 (1977 & Supp. 2001),
and Lawrence Meir Friedman, A History of American Law 134-137 (1973).
3. See Proposed FRE 502-510 and Advisory Committee Notes, 51 F.R.D. 360-380
(1971).
4. See Trammel v. United States, page 962, infra.
5. See, e.g., Jaffee v. Redmond, 518 U.S. 1 (1996) (recognizing psychotherapist-patient
privilege—Jaffee is reproduced at page 972, infra); In re Grand Jury Investigation, 918 F.2d
374 (3d Cir. 1990) (recognizing clergy-communicant privilege; Cusumano v. Microsoft Corp.,
162 F.3d 708 (1st Cir. 1998) (acknowledging similarity of academic research and work
product of journalists, thus recognizing limited scholar's privilege); In re Zuniga, 714 F.2d
632 (6th Cir. 1983) (acknowledging but not applying psychotherapist-patient privilege); In re
Agosto, 553 F. Supp. 1298 (D. Nev. 1983) (recognizing parent-child privilege).
6. See generally 3 Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence
§§501.02-501.04 (Joseph M. McLaughlin ed., 2d ed. 1997).
7. See generally 1 Gregory P. Joseph & Stephen A. Saltzburg, Evidence in America: The
Federal Rules in the States, Ch. 23-24 (1987).
8. See, e.g., Coles v. Harsch, 129 Or. 11, 30-31, 276 P.2d 248, 255 (1929). Judge
Weinstein and Professor Berger have suggested that this is an inherent judicial power that
is not abrogated by the failure of a rule specifically to mention the authority of the judge to
act on the holder's behalf. 3 Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal
Evidence §503.20[3] (Joseph M. McLaughlin ed., 2d ed. 1997).
9. See also Nixon v. United States, 418 U.S. 683 (1974) (claim of absolute executive
privilege for presidential communications will not prevail over demonstrated need for
particular evidence); Dellwood Farms v. Cargill, Inc., 128 F.3d 1122 (7th Cir. 1997) (law
enforcement investigatory privilege not absolute, rather surmountable by strong showing of
need).
10. See 3 Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence
§513.04 (Joseph M. McLaughlin ed., 2d ed. 1997).
11. Griffin itself applies only to comments regarding a criminal defendant's invocation of
the privilege in a criminal prosecution: Adverse inferences from silence in a noncriminal trial
are not unconstitutional even when a criminal defendant or suspect exercises the privilege
against self-incrimination. See Baxter v. Palmigiano, 425 U.S. 308 (1976); Brink's, Inc. v.
City of New York, 717 F.2d 700 (2d Cir. 1983).
12. See Remarks made to the House of Representatives by Congresswoman Jackson-
Lee of Texas; H7818 Congressional Record—House September 8, 2008.
13. Explanatory Note on Evidence Rule 502 Prepared by the Judicial Conference
Advisory Committee on Evidence Rules (Revised 11/28/2007).
14. See Advisory Committee Notes.
15. See Advisory Committee Notes.
16. See Hearings on Proposed Rules of Evidence Before the Special Subcommittee on
Reform of Federal Criminal Laws of the House Committee on the Judiciary, 93d Cong., 1st
Sess. 524 (1973) (testimony by Professor Cleary). In earlier drafts the Advisory Committee
had included a version of the control group test in the definition section of Proposed FRE
503. Prior to the final draft, however, the Supreme Court affirmed by an equally divided vote
the decision that had announced the subject matter test. Harper & Row Publishers v.
Decker, 400 U.S. 348 (1970). As Weinstein and Berger noted: The Advisory Committee
recognized that lack of consensus in the Supreme Court precluded the possibility of drafting
a rule satisfactory to a majority of the justices. Consequently, the Committee eliminated the
definition of “representative of the client” in subdivision (a) of the rule. [3 Jack B. Weinstein
& Margaret A. Berger, Weinstein's Federal Evidence §503 App.01[2] (Joseph M.
McLaughlin ed., 2d ed. 1997).]
17. The Government argues that the risk of civil or criminal liability suffices to ensure that
corporations will seek legal advice in the absence of the protection of the privilege. This
response ignores the fact that the depth and quality of any investigations to ensure
compliance with the law would suffer, even were they undertaken. The response also
proves too much, since it applies to all communications covered by the privilege: an
individual trying to comply with the law or faced with a legal problem also has strong
incentive to disclose information to his lawyer, yet the common law has recognized the
value of the privilege in further facilitating communications.
18. Seven of the eighty-six employees interviewed by counsel had terminated their
employment with Upjohn at the time of the interview. . . . Petitioners argue that the privilege
should nonetheless apply to communications by these former employees concerning
activities during their period of employment. Neither the District Court nor the Court of
Appeals had occasion to address this issue, and we decline to decide it without the benefit
of treatment below.
19. The following discussion will also be relevant to counsel's notes and memoranda of
interviews with the seven former employees should it be determined that the attorney-client
privilege does not apply to them. See n.[23], supra.
20. This provides, in pertinent part:
[A] party may obtain discovery of documents and tangible things otherwise
discoverable under subdivision (b)(1) of this rule and prepared in anticipation of
litigation or for trial by or for another party or by or for that other party's representative
(including his attorney, consultant, surety, indemnitor, insurer, or agent) only upon a
showing that the party seeking discovery has substantial need of the materials in the
preparation of his case and that he is unable without undue hardship to obtain the
substantial equivalent of the materials by other means. In ordering discovery of such
materials when the required showing has been made, the court shall protect against
disclosure of the mental impressions, conclusions, opinions, or legal theories of an
attorney or other representative of a party concerning the litigation.
21. Thomas described his notes of the interviews as containing “what I considered to be
the important questions, the substance of the responses to them, my beliefs, as to the
importance of these, my beliefs as to how they related to the inquiry, my thoughts as to how
they related to other questions. In some instances they might even suggest other questions
that I would have to ask or things that I needed to find elsewhere.” . . .
22. See, for example, Stephen A. Saltzburg, Corporate and Related Attorney-Client
Privilege Claims: A Suggested Approach, 12 Hofstra L. Rev. 279, 283-284 (1984).
23. It is this recognition that makes explaining such matters as waiver under the privilege
so difficult. See, for example, Richard Marcus, The Perils of Privilege: Waiver and the
Litigator, 84 Mich. L. Rev. 1605, 1619-1622 (1986).
 24. Yet other scholars, convinced that the rules of confidentiality impose greater costs
than they secure benefits, argue for eliminating some or all of the rules. See, for example,
Marvin Frankel, Partisan Justice (1980). For a discussion, see Albert Alschuler, The
Preservation of a Client's Confidences: One Value Among Many or a Categorical
Imperative?, 52 Colo. L. Rev. 349 (1981).
25. John Henry Wigmore, 4 Evidence §§2285-2292 (1905). We are relying on the 1905
edition of Wigmore because we are more interested in his views than his subsequent
compilers. See also Developments in the Law: Privileged Communications, 98 Harv. L. Rev.
1450, 1501 (1985).
26. Hickman v. Taylor, 329 U.S. 495 (1947); Fed. Rule Civil Proc. 26(b)(3).
27. Ethical rules also comprise a form of legally mandated confidentiality. The lawyer's
ethical obligations pose the problem of how to prevent the agent from expropriating the
principal—the lawyer could threaten to inform on his client and thereby get a payment from
him. The other two rules—the attorney-client privilege and the work product doctrine—
address a different problem: how much information about legal disputes will clients and
lawyers produce. Accordingly, the ethical obligations of lawyers are beyond the scope of
this Article. . . .
We also put aside the question of the implications of the privilege for nonlitigation
oriented activity. The problem there, again, does not center on the production of legal
information. Instead, it centers on providing the optimum incentives to ensure
compliance with the law. For a preliminary exploration of that issue, see Ronald J. Allen
& Cynthia M. Hazelwood, Preserving the Confidentiality of Internal Corporate
Investigations, 12 J. Corp. L. 355 (1987).
28. Louis Kaplow & Steven Shavell, Legal Advice About Information to Present in
Litigation: Its Effects and Social Desirability, 102 Harv. L. Rev. 565, 570 (1989).
29. The formal rules of confidentiality actually protect a certain amount of evasion by the
attorney. For example, the Model Rules of Professional Conduct, in a Comment to rules on
“Candor Toward the Tribunal,” state that “An advocate . . . is usually not required to have
personal knowledge of matters asserted in [pleadings and other litigation documents], for
litigation documents ordinarily present assertions by the client, or by someone on the
client's behalf, and not assertions by the lawyer.” Rule 3.3, Comment, Representations by a
Lawyer [2] (1984). Creating a distinction between the client's and the lawyer's knowledge
encourages lawyers to learn of the client's information without fully “knowing” it for purposes
of the ethical rules.
30. See Richard A. Epstein, A Theory of Strict Liability, 2 J. Legal Stud. 151 (1973);
Richard A. Epstein, Defenses and Subsequent Pleas in a System of Strict Liability, 3 J.
Legal Stud. 165 (1974).
31. See Thomas Chitty, Treatise on Pleading with Precedents and Forms (13th ed. 1859);
James Fitzjames Stephen, A Treatise on the Principles of Pleading in Civil Actions (Tyler
ed. 1882); Joseph H. Koffler and Alison Reppy, Common Law Pleading 433-531 (1969);
Richard A. Epstein, Pleadings and Presumptions, 40 U. Chi. L. Rev. 556 (1973).
32. See for example Richard Posner, A Theory of Negligence, 1 J. Legal Stud. 29 (1973);
John Prather Brown, Toward An Economic Theory of Liability, 2 J. Legal Stud. 323 (1973);
Mark Grady, Common Law Control of Strategic Behavior: Railroad Sparks and the Farmer,
17 J. Legal Stud. 15 (1988).
33. This prediction is confirmed in cases such as Nix v. Whiteside, 475 U.S. 157 (1986),
in which the Supreme Court held that the attorney acted properly in refusing to permit the
client to testify falsely about a claim of self-defense.
 34. The prediction of the contingent claim theory that the privilege is best understood as a
qualified rather than an absolute bar to discovery is beginning to be explicitly expressed in
the cases. See, for example, Greater Newburyport Clamshell Alliance et al. v. Public
Service Co. of N.H., 838 F.2d 13, 19 (1st Cir. 1988); In re Grand Jury Proc., Des Moines,
Iowa, 568 F.2d 555, 557 (8th Cir. 1977) (opponent's need relevant to a determination of
privilege).
35. Edmund M. Morgan, Forward to the American Law Institute's Model Code of Evidence
25 (1942).
36. Id. at 26-27. Morgan's theory was foreshadowed by Whiting v. Barney, 30 N.Y. 330,
332 (1864), in which Judge Selden stated that the original purpose of the privilege came
from the ancient rule of procedure that parties could not be compelled to testify. As the rules
of litigation became more complex, lawyers became necessary, but “as parties were not
then obliged to testify in their own cases, and could not be compelled to disclose facts
known only to themselves, they would hesitate to employ professional men, and make the
necessary disclosures to them, if the facts thus communicated were thus within the reach of
their opponent.” Id. at 333. Judge Selden then wondered whether legislation placing parties
under obligations to testify had removed the reason for the privilege. Id. at 342.
37. Jeremy Bentham, 7 The Rationale of Evidence, b. 9, 4, ch. 5 at 474 et seq. (Bowring
ed. 1827).
38. Kaplow & Shavell, supra [note 33]. The basic model employed by Kaplow and Shavell
in large measure is an elaboration of a model first proposed by B. Peter Pashigian,
Regulation, Preventive Law, and the Duties of Attorneys, 21-25, in William J. Carney, ed.,
The Changing Role of the Corporate Attorney (1982).
39. It is unclear precisely of what the Kaplow/Shavell theory of the attorney-client privilege
consists. Theories are generally tested by their predictive power. The only prediction that
seems to emerge from the Kaplow/Shavell theory is that lawyers should only be provided
for innocent individuals, if sanctions are set at the appropriate levels. This prediction is
falsified by the facts.
40. Wigmore, supra note [25], §2991, at 3196.
41. Id. at 3202.
42. Id.
43. Wigmore, supra note [25], §2292, at 3204.
44. Louisell has written:

[T]here are things more important to human liberty than accurate adjudication. One of
them is the right to be left by the state unmolested in certain human relations. . . . It is
the historic judgment of the common law . . . that whatever handicapping of the
adjudicatory process is caused by recognition of the privilege, it is not too great a
price to pay for secrecy in certain communicative relations. . . .

David Louisell, Confidentiality, Conformity and Confusion: Privileges in Federal Court Today,
31 Tul. L. Rev. 101, 110 (1956).
45. Charles Fried, Correspondence, 86 Yale L.J. 573, 586 (1977).
46. Id. at 586.
47. Id.
48. Some commentators have justified the privilege on the grounds that individuals in
trouble with the law are in need of a friend. Albert Alschuler, The Preservation of a Client's
Confidences: One Value Among Many or a Categorical Imperative?, 52 Colo. L. Rev. 349
(1981). The cases do not support such a theory. See for example U.S. v. Tedder, 801 F.2d
1437 (4th Cir. 1986). Indeed, in Morris v. Slappy, 461 U.S. 1 (1983), the Supreme Court held
that the sixth amendment does not guarantee a “meaningful relationship” between attorney
and client. Nor are people in trouble with the law the only ones in need of friends. The point,
in short, has little explanatory power.
49. 329 U.S. 495 (1947).
50. See Fed. Rule Civil Proc. 26.
51. Hickman, 329 U.S. at 511. Murphy wrote: “[T]he general policy against invading the
privacy of an attorney's course of preparation is so well recognized and so essential to an
orderly working of our system of legal procedure that a burden rests on the one who would
invade that privacy to establish adequate reasons to justify production through a subpoena
or court order.” Hickman, 329 U.S. at 512.
52. Id. at 516. Jackson also worried that a contrary decision would allow witnesses to be
impeached with opposing counsel's summaries of their pre-trial statements and that in many
cases opposing counsel himself would have to be called as a witness.
53. As even those who provide the justifications acknowledge. See, for example, Kevin
Clermont, Surveying Work Product, 68 Corn. L. Rev. 755 (1983): “As proof of [the] difficulty
[of the work product doctrine], I note—without insult by citation—the serious shortcomings
of almost all of that commentary.”
54. Frank Easterbrook, Insider Trading, Secret Agents, Evidentiary Privileges, and the
Production of Information, 1981 Sup. Ct. Rev. 309. See also Richard Posner, The
Economics of Justice 244 (1983) (“the attorney-work product doctrine is, I think, best
understood as the use of secrecy to protect the lawyer's (and hence client's) investment in
research and analysis of a case”).
55. See generally Edmund Kitch, The Law and Economics of Rights in Valuable
Information, 9 J. Legal Stud. 683 (1980); Edmund Kitch, The Nature and Function of the
Patent System, 20 J. L. and Econ. 265 (1977).
56. The first suggestion of this idea in the literature is in Richard Posner, Privacy, Secrecy,
and Reputation, 28 Buff. L. Rev. 1, 11 (1979), although the idea is not developed.
57. Wigmore writes, “Men do not gather grapes of thorns, nor figs of thistles; yet they may
enter one and the same field and find diverse fruits.” Wigmore, supra note [25], §2295, at
3212. He makes little of this insight however.
It should be noted that whether evidence is helpful or not is a function of at least two
variables: its absolute value, that is, does it tend to confirm or deny the party's allegations,
and its relative value, that is, its value given the evidence already known. Indeed, there are
further complexities, for the attorney must make at least two different assessments: 1.) what
probability range will the jury assign to the evidence; 2.) what is the probability that further
investigation will turn up information that will affect the probability range the jury would
assign. These matters are beyond the scope of the present article.
58. Gordon Tullock, Trial on Trial: The Pure Theory of Legal Procedure 154-158 (1980).
59. The typical criticism of the work product doctrine is to the effect that lawyers will
investigate and prepare their cases even in the absence of the doctrine. See for example
Kathleen Waits, Work Product Protection for Witness Statements: Time for Abolition, 1985
Wisc. L. Rev. 305, 331 (“Because preparation increases the chances of a favorable
outcome, it is its own reward. This remains true even if some of the preparatory documents
must be shared with the other side. We therefore should not fear that abolition of work
product would cause parties to abandon all investigative efforts.”). This is another lump-up
argument. The concern is not whether all investigative efforts will be abandoned but rather
with the scale of the efforts that are undertaken. Disincentives to such efforts are likely to
reduce their scale.
 60. In response to the question whether divorce was contemplated, Mrs. Trammel
testified that her husband had said that “I would go my way and he would go his.”
61. The Government represents to the Court that Elizabeth Trammel has not been
prosecuted for her role in the conspiracy.
62. This Court recognized just such a confidential marital communications privilege in
Wolfle v. United States, 291 U.S. 7 (1934), and in Blau v. United States, 340 U.S. 332
(1951). In neither case, however, did the Court adopt the Wigmore view that the
communications privilege be substituted in place of the privilege against adverse spousal
testimony. The privilege as to confidential marital communications is not at issue in the
instant case; accordingly, our holding today does not disturb Wolfle and Blau.
63. In 1965, California took the privilege from the defendant-spouse and vested it in the
witness-spouse, accepting a study commission recommendation that the “latter [was] more
likely than the former to determine whether or not to claim the privilege on the basis of the
probable effect on the marital relationship.” See Cal. Evid. Code Ann. §970-973 (West 1966
and Supp. 1979) and 1 California Law Revision Commission, Recommendation and Study
relating to The Marital “For and Against” Testimonial Privilege, at F-5 (1956). See also 6
California Law Revision Commission, Tentative Privileges Recommendation—Rule 27.5,
pp.243-244 (1964).
Support for the common-law rule has also diminished in England. In 1972, a study group
there proposed giving the privilege to the witness-spouse, on the ground that “if [the wife] is
willing to give evidence . . . the law would be showing excessive concern for the
preservation of marital harmony if it were to say that she must not do so.” Crim. L. Rev.
Comm., 11. R., Evid. (General) 93.
64. It is argued that abolishing the privilege will permit the Government to come between
husband and wife, pitting one against the other. That, too, misses the mark. Neither
Hawkins nor any other privilege prevents the Government from enlisting one spouse to give
information concerning the other to aid in the other's apprehension. It is only the spouse's
testimony in the courtroom that is prohibited.
65. The familiar expression “every man's evidence” was a well-known phrase as early as
the mid-18th century. Both the Duke of Argyll and Lord Chancellor Hardwicke invoked the
maxim during the May 25, 1742, debate in the House of Lords concerning a bill to grant
immunity to witnesses who would give evidence against Sir Robert Walpole, first Earl of
Orford. 12 T. Hansard, Parliamentary History of England 643, 675, 693, 697 (1812). The bill
was defeated soundly. Id., at 711.
66. See studies and authorities cited in the Brief for American Psychiatric Association et
al. as Amici Curiae 14-17, and the Brief for American Psychological Association as Amicus
Curiae 12-17.
67. This case amply demonstrates the importance of allowing individuals to receive
confidential counseling. Police officers engaged in the dangerous and difficult tasks
associated with protecting the safety of our communities not only confront the risk of
physical harm but also face stressful circumstances that may give rise to anxiety,
depression, fear, or anger. The entire community may suffer if police officers are not able to
receive effective counseling and treatment after traumatic incidents, either because trained
officers leave the profession prematurely or because those in need of treatment remain on
the job.
68. At the outset of their relationship, the ethical therapist must disclose to the patient “the
relevant limits on confidentiality.” See American Psychological Association, Ethical
Principles of Psychologists and Code of Conduct, Standard 5.01 (Dec. 1992). See also
National Federation of Societies for Clinical Social Work, Code of Ethics V(a) (May 1988);
American Counseling Association, Code of Ethics and Standards of Practice a.3. (effective
July 1995).
69. Petitioner acknowledges that all 50 state legislatures favor a psychotherapist
privilege. She nevertheless discounts the relevance of the state privilege statutes by
pointing to divergence among the States concerning the types of therapy relationships
protected and the exceptions recognized. A small number of state statutes, for example,
grant the privilege only to psychiatrists and psychologists, while most apply the protection
more broadly. Compare Haw. Rules Evid. 504, 504.1 and N.D. Rule Evid. 503 (privilege
extends to physicians and psychotherapists), with Ariz. Rev. Stat. Ann. §32-3283 (1992)
(privilege covers “behavioral health professionals”); Tex. Rule Civ. Evid. 510(a)(1) (privilege
extends to persons “licensed or certified by the State of Texas in the diagnosis, evaluation
or treatment of any mental or emotional disorder” or “involved in the treatment or
examination of drug abusers”); Utah Rule Evid. 506 (privilege protects confidential
communications made to marriage and family therapists, professional counselors, and
psychiatric mental health nurse specialists). The range of exceptions recognized by the
States is similarly varied. Compare Ark. Code Ann. §17-46-107 (1987) (narrow exceptions);
Haw. Rules Evid. 504, 504.1 (same), with Cal. Evid. Code Ann. §§1016-1027 (West 1995)
(broad exceptions); R.I. Gen. Laws §5-37.3-4 (1956) (same). These variations in the scope
of the protection are too limited to undermine the force of the States' unanimous judgment
that some form of psychotherapist privilege is appropriate.
70. Like other testimonial privileges, the patient may of course waive the protection.
71. If petitioner had filed her complaint in an Illinois state court, respondents' claim of
privilege would surely have been upheld, at least with respect to the state wrongful death
action. An Illinois statute provides that conversations between a therapist and her patients
are privileged from compelled disclosure in any civil or criminal proceeding. Ill. Comp. Stat.,
ch. 740, §110/10 (1994). The term “therapist” is broadly defined to encompass a number of
licensed professionals including social workers. Ch. 740, §110/2. Karen Beyer, having
satisfied the strict standards for licensure, qualifies as a clinical social worker in Illinois. . . .
72. Although it would be premature to speculate about most future developments in the
federal psychotherapist privilege, we do not doubt that there are situations in which the
privilege must give way, for example, if a serious threat of harm to the patient or to others
can be averted only by means of a disclosure by the therapist.
73. See Lance Gay, Lewinsky's Mother Torn Between Law and Loyalty, Times Union,
Feb. 14, 1998, at A1.
74. See Confidence in the Family Act, 105 H.R. 3577 (1998) (amending Federal Rules of
Evidence to include parent-child adverse testimonial privilege and confidential
communications privilege in federal civil and criminal proceedings); Parent-Child Privilege
Acts of 1998 and 1999, 105 H.R. 4286 (1998), 106 H.R. 522 (1999) (amending Federal
Rules of Evidence establishing a parent-child privilege); Attorney General Guidelines for
Familial Privacy, 105 S. 1721 (directing the Attorney General of the United States to
develop guidelines for Federal prosecutors to protect familial privacy and communications
between parents and children).
75. The bill was ultimately rejected by a vote of 162 to 256. See 144 Cong. Rec. H2278
(daily ed. Apr. 23, 1998).
76. Three years later the Court again declined to permit the executive privilege to prevent
the release of information where an ex-president sought to invoke the privilege “against the
very Executive Branch in whose name the privilege is invoked.” Nixon v. Administrator of
General Services, 433 U.S. 425 (1977) (former president directed to deliver presidential
papers and tape recordings to an official of the Executive Branch for the creation of public
access under the Presidential Recordings and Materials Preservation Act, held to be facially
constitutional and not violative of the presidential privilege doctrine).
77. See Recent Case, 111 Harv. L. Rev. 861 (1998) (arguing that the court failed to
recognize the difference in the privilege for the President and his advisors and disregarded
other protections, such as the deliberative process privilege and statutory exceptions to the
Freedom of Information Act, which would preserve the effectiveness of the executive
branch).
78. In re Grand Jury Proceedings, 1998 WL 272884 (D.D.C. May 22, 1998).
79. There has been discussion in the Judiciary Committees of both the United States
House of Representatives and the Senate about a potential protective function privilege.
Senator Leahy introduced the Secret Service Protective Privilege Act of 1999, 106 S. 1360,
which would prohibit testimony by Secret Service personnel or former personnel that was
acquired during the performance of the protective function in physical proximity to the
protectee. It was referred to the Senate Committee on the Judiciary but a report has not yet
been issued.
80. See In re Grand Jury Proceedings, 1998 WL 272884, at *3 (D.D.C. May 22, 1998)
discussing President Nixon's taping system and John Hinckley's attempted assassination of
President Reagan where the Secret Service did not assert a protective function privilege.
81. 18 U.S.C. §3056(a) mandates the protection of the President.
82. See, e.g., Hoover v. Dept. of Interior, 611 F.2d 1132, 1138 (5th Cir. 1980) (“the
government may deem it necessary to seek the objective opinion of outside experts rather
than rely solely on the opinions of government appraisers”); Lead Industries Assn. v. OSHA,
610 F.2d 70, 83 (2d Cir. 1979) (applying Exemption 5 to cover draft reports “prepared by
outside consultants who had testified on behalf of the agency rather than agency staff”);
Government Land Bank v. GSA, 671 F.2d 663, 665 (5th Cir. 1982) (“Both parties agree that
a property appraisal, performed under contract by an independent professional, is an 'intra-
agency' document for purposes of the exemption”).
1025

TABLE OF CASES
Principal cases are indicated by italics.
281 Syosset Woodbury Rd.; United States v., 914

Abel; United States v., 426, 427

Abreu; United States v., 210, 789
Abu-Jihaad; United States v., 519
Acevedo; United States v., 336
Acker; United States v., 957, 958, 968
Adair; United States v., 321, 323
Adams; Commonwealth v., 497
Adams; United States v., 426
Addington v. Texas, 811
Adlman; United States v., 915
Adoption of. See name of party
Ad-Vantage Tel. Directory Consultants, Inc. v. GTE Directories Corp.,
397
“Agent Orange” Prod. Liab. Litig., In re, 1014
Agne; United States v., 513
Agosto, In re, 892
AgriBioTech, Inc. v. Thomas, 565
Aguilar; United States v., 641
Air Crash Disaster, In re, 365
Air Disaster at Lockerbie Scotland on Dec. 21, In re, 584
Alarcon-Simi; United States v., 534
Albertson; United States v., 1009
Alcalde; People v., 545
Alexis v. McDonald's Rests. of Mass., Inc., 704
Allen; United States v., 403, 704
Allen J.; United States v., 191
Allred v. Saunders, 1007
Alperin; United States v., 988
Alvarez; United States v., 321, 322, 323
Amachia; United States v., 410
Amaya; United States v., 592
American Coal Co. Benefits Review Bd., 834
American Stores v. Commission of Internal Revenue Serv., 871
Ammar; United States v., 519
Amobi v. D.C. Dept. of Corr., 913
Anderson v. Cryovac, 762
Anderson v. Liberty Lobby, Inc., 808
Anderson v. Malloy, 362
Anderson; United States v., 904, 1003
Andolschek; United States v., 899
Andrekus v. Board of Educ., 626
Andring; State v., 987
Appeal of. See name of party
Appleton Papers, Inc. v. E.P.A., 907
Application to Quash Subpoena to Nat'l Broad. Co., In re, 1004
Apprendi v. New Jersey, 851, 852
Aramburu v. Boeing Co., 1007
Ariza v. City of N.Y., 580
Arnold; United States v., 535
Arthur Young & Co.; United States v., 998
Ashcroft v. Iqbal, 808
Athey v. Farmers Ins. Exch., 367
Atkins; United States v., 611
Attorney Gen. v. Irish People, Inc., 1009
Aumand v. Dartmouth Hitchcock Med. Ctr., 571
Auster; United States v., 989
Austin v. Hopper, 306
Austin; United States v., 589
Ayala; United States v., 745
Ayala-Pizarro; United States v., 705

Back v. Nestle USA, Inc., 486

Bailey; United States v., 623, 854, 855
Baird v. Koerner, 935
Baker v. State, 559
Bakshinian; United States v., 515
Ballew v. State, 902
Balzano; United States v., 249
Bankcard Am., Inc. v. Universal Bancard Sys., Inc., 367

1026

Banks v. Lockheed-Georgia Co., 1007

Barber v. Page, 678
Barnes v. United States, 859
Barraza; United States v., 546
Baskerville; United States v., 620
Batson v. Kentucky, 93
Battle; United States v., 618, 787
Baxter v. Palmigiano, 898
Beasley v. State, 678
Beck v. Alabama, 853
Beech Aircraft Corp. v. Rainey, 578
Beechum; United States v., 281
Behn; State v., 793
Bell; United States v., 155, 156
Bell Atl. Corp. v. Twombly, 808
Benally; United States v., 334
Benavidez v. City of Irving, 866
Benedetto; United States v., 324
Bensimon; United States v., 408
Bentzlin v. Hughes Aircraft Co., 1009
Bercier; United States v., 970
Bervid v. Iowa State Tax Comm'n, 879
Betts; United States v., 427
Big O Tire Dealers, Inc. v. Goodyear Tire & Rubber Co., 369
Bilderbeck; United States v., 280
Bilzerian; United States v., 897, 903
Bin Laden; United States v., 1011
Bizanowicz; Commonwealth v., 670
Black v. United States, 1009
Blair; State v., 150, 269, 276, 450, 480, 553, 621, 643
Blake v. Pellegrino, 151, 170
Blakey; United States v., 536
Bland; United States v., 172
Blau v. United States, 963
Blount v. Hardy, 676
Blu-J, Inc. v. Kemper C.P.A. Group, 369
BMW v. Gore, 846
Board of Educ. of City of Chi.; United States v., 1014
Bobo; United States v., 608
Bogle; People v., 968
Bogosian v. Mercedes Benz, Inc., 363
Bohannon v. Pegelow, 704
Bohler-Udderholm Am., Inc. v. Ellwood Group, Inc., 627
Bolick; United States v., 390
Bolzer; United States v., 959, 961
Bonds; United States v., 626
Booker; United States v., 852
Bordeaux; United States v., 676
Boucher v. Grant, 530
Bourjaily v. United States, 228, 518, 519, 631
Bowie; United States v., 278
Boyce; United States v., 536, 629, 684
BP Amoco Chem. Co. v. Flint Hills Res., LLC, 572
Brady v. Maryland, 398
Branzburg v. Hayes, 1003
Bridges; United States v., 379
Brien; United States v., 747, 794
Brink's, Inc. v. City of N.Y., 898
Brink; United States v., 497
Broadback v. Trapp, 553
Brocklesby v. United States, 367
Brooks v. Chrysler Corp., 305
Brooks; United States v., 278
Brown v. Board of Educ., 880
Brown; United States v., 967
Brownlee; United States v., 794
Brumley; United States v., 379
Bruno; United States v., 645
Bruton v. United States, 507, 508, 694
Bryan; United States v., 964, 974
Bryant; People v., 656
Bucci v. Essex Ins. Co., 549
Buchanan; United States v., 153
Bullcoming v. New Mexico, 666, 667, 669, 671, 672, 673
Bunchan; United States v., 397
Burch; United States v., 380
Burka v. United States Dep't of Health & Human Servs., 1005
Burke; United States v., 1003
Burr; United States v., 1012
Burton; People v., 958
Byrd v. Maricopa County Sheriff's Dept., 166
Byrd; United States v., 488

CA, Inc. v. Simple, Inc., 198, 219

Cage v. Louisiana, 837
Cage; People v., 676
Caldwell v. Chauvin, 972
Caldwell; United States v., 405
Calhoun; State v., 655
California v. Green, 103, 639
Californian & Hawaiian Sugar Co. v. Kansas City Terminal
Warehouse Co., 367
Call; United States v., 158
Campbell v. Coleman Co., 592
Campbell v. Greer, 408
Campos v. MTD Prods., Inc., 549
Candelaria-Silva; United States v., 162
C&E Serv., Inc. v. Ashland, Inc., 371
C&H Commercial Contractors v. United States, 515
Capelton; United States v., 520
Caraballo; United States v., 666
Carley v. Wheeled Coach, 867
Carlson; State v., 509
Carl Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena, 1016
Carman v. McDonnell Douglas Corp., 985
Carneglia; United States v., 579
Carson v. Fine, 971

1027

Carter v. University of Toledo, 512

Carvalho; United States v., 614
Cash; United States v., 554, 555
Castillo; United States v., 333
Castro-Ayon; United States v., 492
Catalan-Roman; United States v., 433
Caver v. City of Trenton, 986
Certain Underwriters at Lloyd's, London v. Sinkovich, 569, 570, 705
Chamberlain v. State, 958
Chapel; United States v., 872
Chapman v. Maytag Corp., 782
Chapman; United States v., 967
Charmley v. Lewis, 295, 296
Chase v. General Motors Corp., 360
Chase; United States v., 989
Chemtool, Inc. v. Lubrication Techs., Inc., 511
Cheney v. U.S. Dist. Court for Dist. of Columbia, 1012
Cherry; United States v., 616, 618, 619
Children's Broad. Corp. v. Walt Disney Co., 800
Chism v. County of San Bernadino, 1017
Chlopek v. Federal Ins. Co., 361
Christenbury v. Locke Lord Bissell & Lidell, LLP, 897
Cisneros-Gutierrez; United States v., 492
City of. See name of city
Clark v. Arizona, 753, 851, 854
Clark v. South Cen. Bell Tel. Co., 869
Clark; United States v., 968
Clark v. United States, 935
Clarke; United States v., 577
Cleveland v. KFC Natl. Mgmt. Co., 336, 339
Cohen; United States v., 543
Cohn v. Papke, 172
Cohn; United States v., 897
Coles v. Harsch, 894
Coles v. Jenkins, 160
Collier; United States v., 407
Collins; United States v., 324
Colon; United States v., 280
Colonial Leasing Co. v. Logistics Control Group Int'l, 872
Columbia Sec. Litig., In re, 625
Commanche; United States v., 410
Commodity Futures Trading Comm'n v. Weintraub, 930
Commonwealth v. See name of opposing party
Conde v. Starlight I, Inc., 373
Condit v. National Enquirer, Inc., 1004
Coney; United States v., 627
Congoleum Indus., Inc. v. GAF Corp., 924
Conoco, Inc. v. Department of Energy, 626, 627
Continental Cablevision, Inc. v. Stores Broad. Co., 1003
Cook v. Rockwell Intl. Corp., 373
Cordance Corp. v. Amazon.com, Inc., 596
Cornett; United States v., 517
Couch v. United States, 998
County Court of Ulster Cnty. v. Allen, 858, 859, 863
County of. See name of county
County of Erie, In re, 933
Cox v. Miller, 994
Coyle v. Kristjan Palusalu Mar. Co., 623
Crawford v. Washington, 486, 487, 582, 609, 611, 625, 628, 630,
632, 643, 644, 645, 648, 649, 650, 651, 652, 658, 659, 661, 662,
 663, 664, 665, 666, 669, 670, 671, 673, 677, 678, 679, 680, 682,
687, 744, 745
Cree v. Hatcher, 407
Crisp; United States v., 782, 789, 790, 791
Cromer; United States v., 645
Crosby; United States v., 157, 170
Croskey v. BMW of N. Am., Inc., 367
Cross v. United States, 249
Cross; United States v., 736, 748, 754
Crowder; United States v., 180, 280
Cruzan v. Dir., Mo. Dep't of Health, 813
Cuesta; United States v., 556, 558
Cusumano v. Microsoft Corp., 892, 896, 1005

Daghita; People v., 959

Daly; State v., 413
Danforth v. Minnesota, 645
D'Arcy; People v., 679
Darrow v. Gunn, 904
Daubert v. Merrell Dow Pharms., Inc., 712, 714, 720, 721, 722, 724,
725, 726, 727, 728, 729, 730, 731, 732, 733, 734, 762, 765, 774,
775, 780, 782, 783, 785, 786, 787, 788, 789, 790, 792, 795, 799,
800, 801, 884
Davis v. Alaska, 899
Davis v. State, 183
Davis; United States v., 397, 533, 610
Davis v. Washington, 645, 646, 649, 651, 655, 656, 657, 658, 659,
660, 663, 664, 665, 667, 679
Deeb; United States v., 596
DeGeratto; United States v., 397, 398
DeKoven v. Plaza Assocs., 776
DeLaurentis; United States v., 154
Dellwood Farms v. Cargill, Inc., 896, 1014
DeLong; State v., 1000
DeMarce; United States v., 531
Demjanjuk; United States v., 218
Denver, City & Cnty. of v. East Jefferson Cnty. Sanitation Dist., 825
Department of Interior & Bureau of Indian Affairs v. Klamath Water
Users Protective Ass'n, 1016
Desai v. Hersh, 1004
DeSimone; United States v., 420
Desrosiers v. Flight Int'l of Fla., Inc., 579

1028

Devbrow v. Gallegos, 219

Dhinsa; United States v., 615, 617, 618, 620
Diamond; Doe v., 987, 988
Diehl v. Blaw-Knox, 365
Dilboy; State v., 666
DiMaria; United States v., 541
DiNapoli; United States v., 595, 600
Dinkins; United States v., 619
Dior; United States v., 873, 881, 882
DiPaola; United States v., 429
DirecTV v. Murray, 574
Dixon v. International Harvester Co., 362
Dixon; People v., 999
Dixon v. United States, 851, 854, 855, 863
Doan v. Carter, 677
Doe, In re Adoption of, 823
Doe v. See name of opposing nongovernmental party
Doe; United States v., 379, 1005
Dolah; United States v., 593
Donovan v. Crisostomo, 608
Dowdell; United States v., 582
Dowling v. United States, 334
Downing; United States v., 718
Doyle; United States v., 988
Drake, In re, 626
Dring; United States v., 398
Dube; United States v., 991
Duenas; United States v., 595
Dullard; State v., 472, 473, 475, 478, 481
Duplan Corp. v. Deering Milliken, Inc., 923
Dutton v. Evans, 637
Duval; United States v., 510

Eagle; United States v., 335

Elfgeeh; United States v., 166
Elkins v. United States, 965
Ellis v. United States, 994
Ellison v. Ellison, 986
El Paso Co.; United States v., 915
Emerson; United States v., 214
Emery; United States v., 620
Enjady; United States v., 332, 333, 334
Ensey; Doe v., 985
Erie R.R. Co. v. Tompkins, 834
Escobar-De Jesus; United States v., 287, 288
Escobedo; United States v., 380
Estate of. See name of estate
Estes; United States v., 959
Evans; United States v., 448, 515

Farber, Matter of, 899, 1005

Farhane; United States v., 542
Fasanaro v. Mooney Aircraft Corp., 361
Fausek v. White, 895
FDIC v. White, 1002
Ferber; United States v., 534
Ferreira; United States v., 140
Field v. Anderson, 462
Field v. Trigg Cnty. Hosp., Inc., 550
Figueroa; United States v., 392
Figueroa-Lopez; United States v., 705
First Sec. Bank v. Union Pac. R. Co., 305, 360
Fischer; United States v., 896
Fisher v. United States, 922
Fitzgerald v. Cassil, 986
Fitzgerald; People v., 999
Flaminio v. Honda Motor Co., 360
Folb v. Motion Picture Indus. Pension & Health Plans, 1002
Ford v. Schmidt, 360
Forstell; United States v., 745
Foster v. California, 499
Four Corners Helicopters, Inc. v. Turbomeca, 305
Fox v. Kramer, 361
Frank v. County of Hudson, 155, 335
Frank; United States v., 379
Frankhauser; United States v., 287
Franklin Nat'l Bank Sec. Litig., In re, 1014
Fritsch v. City of Chula Vista, 986
Fry; People v., 678
Frye v. United States, 713, 716, 721, 801, 884
Fulk; United States v., 957
Funderburk; R. v., 353
Funk v. United States, 963, 975

Gabe; United States v., 335

Gail D., In re, 999
Gainey; United States v., 830
Gajo; United States v., 517
Galarnyk v. Hostmart Mgmt., 371
Galarza v. United States, 933
Gamerdinger v. Schaefer, 296
Ganier; United States v., 801
Garcia-Meza; United States v., 679
Garcia-Rosa; United States v., 163
Garcia-Torres; United States v., 516
Garner v. Wolfinbarger, 895
Gaskell; United States v., 216
Gaskin; United States v., 468
General Dynamics Corp. v. United States, 1010, 1024
General Elec. Co. v. Joiner, 722, 733, 734, 781, 801
General Elec. Co. v. Kirkpatrick, 922
General Signal Corp. v. MCI Telecomms. Corp., 159
George; United States v., 789
Georgia-Pacific Corp. v. GAF Roofing Mfg. Corp., 903
Geston; United States v., 396
Ghilarducci; United States v., 677
Gil; United States v., 516
Gilbert v. California, 288, 289, 290, 498
Gilbert; United States v., 404

1029

Giles v. California, 616, 617, 618, 655, 679, 680, 681, 682
Gill; United States v., 721
Gillespie; United States v., 172
Gillock; United States v., 1009
Gilmore v. Lafler, 679
Gilmore; United States v., 403
Glass; United States v., 989
Glawson; United States v., 211
Glover v. State, 967
Goebel v. Denver & Rio Grande W. R.R. Co., 782
Goldblatt v. Federal Deposit Ins. Corp., 867
Goldsmith; People v., 215
Goldsmith v. State, 988
Gomez v. Rodriguez, 511
Gonsalves; United States v., 155
Gonzalez v. Digital Equip. Corp., 162
Gonzalez-Maldonado; United States v., 218
Gonzalez-Sanchez; United States v., 286, 290
Goodman; United States v., 750
Goodyear Tire & Rubber Co. v. Chiles Power Supply, Inc., 1001
Gordon; United States v., 991
Gould; United States v., 880, 881, 883
Government Land Bank v. GSA, 1016
Government of. See name of government
Goy v. Jones, 583
Grady; United States v., 324
Grand Jury, In re, 890
Grand Jury Investigation, In re, 892, 933, 934, 936, 991, 992, 993,
994
Grand Jury Investigation 83-2-35 (Durant), In re, 935
Grand Jury Proceedings, In re, 897, 999, 1013
Grand Jury Proceedings, Des Moines, Iowa, In re, 915, 945, 955
Grand Jury Proceedings (Gregory P. Violette), In re, 989
Grand Jury Proceedings (Pavlick), In re, 935
Grand Jury Proceedings (Scarce), In re, 1004, 1005
Grand Jury Proceedings (Twist), In re, 935
Grand Jury Proceedings No. 96-55344, In re, 936
Grand Jury Proceedings Witness Ms. X, In re, 958
Grand Jury Subpoena, In re, 967, 1005
Grand Jury Subpoena Duces Tecum Dated Sept. 15, In re, 936
Grand Jury Subpoena, Judith Miller, In re, 1004
Grand Jury Subpoenas Dated Mar. 24, In re, 902
Grand Jury Subpoena United States, In re, 969
Grand Jury Testimony of Attorney X, In re, 903
Grant; United States v., 211
Gray v. Bicknell, 905
Gray v. District Court, 903
Gray v. Maryland, 508
Gray; United States v., 620
Great Coastal Express, Inc. v. Atlanta Mut. Cos., 372
Greater Newburyport Clamshell Alliance v. Public Serv. Co. of N.H.,
915, 945, 955
Green; United States v., 172, 533, 555, 558
Griffin v. California, 898
Grooms; United States v., 420, 433
Grove v. Principle Mut. Life Ins. Co., 776
Guardia; United States v., 333
Guillermety v. Secretary of Educ., 567
Gupta; United States v., 517
Gustafson v. Cornelius Co., 872
Gutierrez-Rodriguez v. Cartagena, 457

Hall v. Baxter Healthcare Corp., 777

Hall; United States v., 180, 551, 794
Halvorsen v. Baird, 157
Hamilton v. New York, 360
Hamilton; United States v., 214, 957
Hammon v. Indiana, 645, 646, 647, 650, 653, 655, 657
Hammoud; United States v., 180
Hampton; People v., 785
Hampton; United States v., 225
Hancock v. Hobbs, 893
Handlin; United States v., 516
Hardwick; United States v., 380
Harper; United States v., 406
Harper & Row Publishers, Inc. v. Decker, 920
Harrell; People v., 999
Harris; United States v., 179, 214, 215
Hart v. Lancashire & Yorkshire Ry. Co., 358
Harty; United States v., 490, 677
Hauert; United States v., 368
Havard v. Baxter Int'l Inc., 778
Havens Steel Co. v. Randolph Eng'g Co., 872
Havvard; United States v., 790
Hawkins v. United States, 880, 963, 964, 966
Hayes; United States v., 989
Haywood; United States v., 163
Health Alliance Network, Inc. v. Continental Cas. Ins. Co., 574
Henderson v. George Wash. Univ., 166
Henderson; United States v., 721
Henley; United States v., 214
Henry; United States v., 745
Herbert v. Lando, 1003
Hernandez v. State, 676
Hernandez; United States v., 614
Hess v. State, 334
Hickman v. Norfolk S. Ry. Co., 584
Hickman v. Taylor, 926, 927, 929, 940, 949, 950
Hickson Corp. v. Norfolk S. Ry. Co., 579
Higginbotham; State v., 610

1030

Hilligas; People v., 999

Hillsborough Holdings Corp., In re, 998
Hinton; United States v., 645
Hirsch; United States v., 935
Hitt; United States v., 120, 171, 173, 174, 208, 209, 269
Hodgson v. Charles Martin Inspector of Petroleum, Inc., 1003
Hoffman-Vaile; United States v., 583
Hogan v. Zletz, 924
Holden; United States v., 392, 395
Holmes v. South Carolina, 611
Holt; United States v., 397
Hood v. Knappton Corp., 834
Hoosier; United States v., 510
Hoover v. Department of Interior, 1016
Houlihan; United States v., 615, 616
Houston v. Smith, 567, 574
Howell; United States v., 406
Huddleston v. United States, 201, 233, 237, 273, 274, 281, 334
Hull v. Chevron U.S.A., Inc., 360
Humphrey v. Philip Morris, Inc., 931
Hunziker v. Scheidemantle, 373
Hutto v. Davis, 845

Idaho v. Wright, 631, 632, 643, 658

Iglesias; United States v., 492
Ignasiak; United States v., 673
Illinois v. Williams, 669
Ina Aviation Corp. v. United States, 820
In re. See name of party
International Sys. & Controls Corp Sec. Litig., In re, 937
Ismail; United States v., 1000

Jackim v. Sam's E., Inc., 246

Jackson v. Scott, 1007
Jackson; United States v., 617
Jackson v. Virginia, 803
Jacobs v. Virgin Islands, 789
Jaffee v. Redmond, 892, 972, 984, 985, 986, 987, 988, 989, 1001,
1013, 1023
Jakobetz; United States v., 884
James; United States v., 581, 673, 967
Jane Student 1 v. Williams, 985
Janis; United States v., 789
Jasin; United States v., 491
Jass; United States v., 508
Jefferson; United States v., 407, 517
Jencks v. United States, 899, 1003
Jenkins; United States v., 280
Jennings; People v., 790
Jensen; United States v., 396
Jenson v. Eveleth Taconite Co., 350
Jeter v. Commonwealth, 211
Jinadu; United States v., 509
Jinro Am. Inc. v. Secure Invs., Inc., 140
Johnson; People v., 1, 2, 42, 88, 97, 103, 104, 109, 113, 114, 120,
129, 131, 132, 136, 137, 139, 141, 142, 143, 147, 148, 152, 156,
157, 184, 189, 195, 222, 267, 309, 310, 311, 312, 316, 317, 318,
320, 393, 395, 414, 577, 691, 696, 701, 756, 809
Johnson; Securities & Exch. Comm'n v., 555
Johnson; State v., 167
Johnson v. United States, 892
Johnson; United States v., 399, 546
Joint Asbestos Litig., In re, 360
Jones v. Ford Motor Co., 158
Jones v. Southern Pac. R.R. Co., 296
Jones; United States v., 554, 555, 787, 873
Jordan v. Binns, 569
Jordan; United States v., 324
Joshi; United States v., 509
Juvenile Dept. of Multnomah County, State ex rel. v. S.P., 676

Kace v. Liang, 585

Kaiser; United States v., 565
Kaquatosh; United States v., 497
Karmer; United States v., 407
Kately; State v., 298
Kay v. Lamar Adver. of S.D., Inc., 570
Kearley, R. v., 476, 479, 480
Keeter; United States v., 490
Kelly v. City of San Jose, 1014
Kemper v. Gray, 985
Keogh v. IRS, 566
Kidder Peabody Sec. Litig., In re, 930
Kim; State v., 159
King; United States v., 583, 677
Kinoy v. Mitchell, 1014
Klinzing; United States v., 568
Knapp v. State, 144, 147
Knight v. Otis Elevator Co., 360
Knit With v. Knitting Fever, Inc., 249
Knuckles; People v., 903
Koch, United States ex rel. v. Koch Indus., 299
Koecher; United States v., 969
Koenig; Securities & Exch. Comm'n v., 159
Kotteakos v. United States, 173
Kovacs v. Chesapeake & Ohio Ry., 295
Kovel; United States v., 901, 902
Kraus v. Sobel Corrugated Containers, Inc., 513
Krilich; United States v., 380
Krusac v. Covenant Med. Ctr., Inc., 1007
Kumho Tire Co. v. Carmichael, 720, 725, 731, 732, 733, 734, 735,
775, 781, 788, 789, 795

Ladd; United States v., 212

Land Grantors v. United States, 625
Landis v. Jarden Corp., 306
Lang v. Cullen, 584
Lange; State v., 903

1031

Lange v. Young, 903

Larez v. City of L.A., 625
Larson; United States v., 335
Lavender; United States v., 873
Lavine v. Milne, 813, 830, 831, 863
Lead Industries Assn. v. OSHA, 1016
LeCompte; United States v., 336
Lee v. E.I. Dupont, 362
Lee; United States v., 517, 1011
Lefkowitz; United States v., 959
Leland v. Oregon, 841, 847, 849, 850
Levin v. United States, 296
Lewis v. City of Chicago Police Dept., 156
Lewis; United States v., 555, 870
Libby; United States v., 627
Lightfoot; United States v., 410
Lilley; United States v., 967
Lilly v. Virginia, 631, 632, 639, 641
Lindsey (Grand Jury Testimony), In re, 933
Littlejohn v. City of N.Y., 808
Loadholt; Commonwealth v., 666
Locklear; State v., 666
Lodge v. Kondauer Capital Corp., 867
Logan; United States v., 419
Long; United States v., 477
Longenecker v. General Motors, 820
Lopez; United States v., 496, 497
Lopez-Lopez; United States v., 489
Lopez-Medina; United States v., 410
Lorraine v. Markel Am. Ins. Co., 215
Lossiah; United States v., 533
Loughan v. Firestone Tire & Rubber Co., 298
Lowe; United States v., 985
Lucas; United States v., 170
Luce v. United States, 412, 413
Luckenbill; United States v., 877
Lui; United States v., 173
Lujan; United States v., 508
Lustig; United States v., 968
Lutwak v. United States, 967
Lynch v. City of Boston, 705
Lynn; United States v., 286

Maday v. Public Libraries of Saginaw, 986

Maddox v. Los Angeles, 361
Madrid v. Gomez, 2, 306
Madrid; United States v., 744
Maguire; United States v., 856
Maine v. Smith, 958
Malfitano, Appeal of, 969
Mann; United States v., 334
Manson v. Brathwaite, 496, 498
Marashi; United States v., 956
Mark v. Shoen, 1004
Marriage of. See name of party
Martin v. Ohio, 846, 849, 850, 853
Martinez; United States v., 619
Martinez-Rios; United States v., 666
Maryland v. Craig, 675
Maryland v. Rose, 791
Mashek; United States v., 666
Mason v. Stock, 1017
Mason v. Texaco, Inc., 410
Mastrangelo; United States v., 614, 615, 618, 679
Matter of. See name of party
Mattox v. United States, 630, 631
Maxon; State v., 999
Mayhew; United States v., 556
McCallum; United States v., 170
McClain v. Metabolife Int'l, Inc., 782
MCC Mgmt. of Naples, Inc. v. International Bancshares Corp., 567,
572
McCollum v. McDaniel, 551
McConnel; United States v., 412
McDonnell Douglas Corp. v. Green, 832
McKnight v. Johnson Controls, Inc., 596
McMillan; United States v., 214
McNabb v. United States, 892
McNaboe v. NVF Co., 457
McQueeney v. Wilmington Trust Co., 120, 165, 170, 171
McVeigh; United States v., 143, 164, 1011
Medical Therapy Scis., Inc.; United States v., 393
Meeks; State v., 904
Mehojah v. Drummond, 365
Mejia; United States v., 744
Mejia-Alarcon; United States v., 407
Mejia-Velez; United States v., 536
Melendez-Diaz v. Massachusetts, 645, 662, 663, 665, 666, 667, 669,
671, 672, 673, 744
Melia; United States v., 399
Melton, In re, 742, 743
Memorial Hosp. v. Shadur, 1006
Mendez; United States v., 586
Mentz; United States v., 872
Mercado v. City of Orlando, 513
Merino-Balderrama; United States v., 180
Merrill v. Waffle House, Inc., 985
Mezzanatto; United States v., 380, 381, 383
Michelson v. United States, 290, 318, 322
Michigan v. Bryant, 655, 659, 661, 671, 677, 679
Midwest Fireworks Mfg. Co.; United States v., 580
Mikos; United States v., 792, 793
Millard; United States v., 379
Miller v. Crown Amusements, Inc., 535, 536
Miller v. Field, 584
Miller v. Keating, 535
Miller; State v., 618
Milo & Gabby, LLC v. Amazon.com, Inc., 872
Milton; United States v., 490
Miranda v. Arizona, 506, 977
Mitchell; United States v., 228, 380, 535, 789
Mobile, J. & K.C.R. Co. v. Turnipseed, 830

1032

Mockaitis v. Harcleroad, 993

Modena; United States v., 250
Mohawk Indus. Inc. v. Carpenter, 890
Molina; United States v., 508
Monell v. New York City Dept. of Social Servs., 306
Montana v. Egelhoff, 853
Montana; United States v., 457
Montero-Camargo; United States v., 536
Moore; United States v., 417
Morales v. Portuondo, 993
Morales-Evans v. Administrative Office of Courts, 346
Morejon v. Rais Constr. Co., 822
Moreland, Estate of v. Dieter, 169
Moretti v. Lowe, 1006
Morgan; United States v., 379
Morris v. B.C. Olympiakos, SFP, 570
Morris v. Slappy, 949
Morris; State v., 849
Morrow; United States v., 406
Morton v. Zidell Explorations, Inc., 373
Motes v. United States, 678
Motor Club of Iowa v. Department of Transp., 878
Mound; United States v., 333
Mullaney v. Wilbur, 839, 840, 841, 842, 843, 844, 846, 852, 857,
858, 863
Municipal Revenue Serv., Inc. v. Xspand, Inc., 539
Munoz; United States v., 397
Murphy, In re, 936
Mutual Life Ins. Co. of N.Y. v. Hillmon, 544, 545, 546

Napolean; United States v., 994

Napolitano v. Compania Sud Americana De Vapores, 169
National Labor Relations Bd. v. Transportation Mgmt. Corp., 835
Natta v. Hogan, 924
Navarro, In re, 904
Nesbitt; Commonwealth v., 679
Nevada v. Jackson, 611
New Colt Holding Corp. v. RJG Holdings of Fla., Inc., 625
Newell v. Harold Shaffer Leasing Co., 373
New York Times v. Sullivan, 1004
Nipper v. Snipes, 585
Nix v. Whiteside, 944
Nixon v. Administrator of Gen. Servs., 894, 1012
Nixon v. United States, 896, 899
Nixon; United States v., 953, 954, 974, 983, 1012
NLRB v. See name of opposing party
Nobles; United States v., 926
North; United States v., 1011
Noseworthy v. City of N.Y., 814
Nunley v. Pettway Oil Co., 819
Oates; United States v., 580, 582, 583
Obayagbona; United States v., 532
Obergefell v. Hodges, 958
Oberweis Dairy; Doe v., 986
Obrey v. Johnson, 159
O'Dell v. Hercules, Inc., 361
Odom; State v., 536
Office of President v. Office of Indep. Counsel, 933
Ohio v. Clark, 674, 675, 679
Ohio v. Perez, 968
Ohio v. Roberts, 630, 631, 632, 634, 640, 641, 642, 643, 659, 661,
662, 678
Ohler v. United States, 412, 413
Olafson; United States v., 593
Old Chief v. United States, 174, 179, 180, 187, 188, 272, 280, 281,
283, 288, 289, 290
Olden v. Kentucky, 347
Oleszko v. State Comp. Ins. Fund, 985
Olsen v. Class, 551
Olsen v. Correiro, 378
Olsen; United States v., 379
Omnicom Group Sec. Litig., In re, 930
Opper v. United States, 506
Orellana-Blanco; United States v., 581
Orr v. Albuquerque, 368
Osazuwa; United States v., 406, 410
Osorio-Soto; United States v., 516
O'Toole v. Northrop Grumman Corp., 867
Owens; United States v., 489, 490, 491, 677

Paducah Towing Co., In re, 596

Paiva; United States v., 856
Palmer v. Hoffman, 569
Pandozzi; United States v., 410
Panzardi-Lespier; United States v., 627
Paoli R.R. Yard PCB Litig., In re, 158, 734
Paolitto v. John Brown E.&C., Inc., 585
Papajohn; United States v., 641
Park v. Huff, 476
Parker; United States v., 410
Pascal; United States v., 334
Patrick; United States v., 567, 626
Patterson v. Caterpillar, 970
Patterson v. New York, 840, 842, 843, 844, 846, 847, 849, 850, 852,
857
Pau v. Yosemite Park & Curry Co., 365
Paul; United States v., 787
Pazsint; United States v., 567
Peak v. Kubota Tractor Corp., 567
Pedroso v. Driver, 270, 450, 461, 523, 538, 549, 587
Pena-Gutierrez; United States v., 593
Pennsylvania v. Ritchie, 899
People v. See name of opposing party

1033

Perez; United States v., 492, 626

Perry v. New Hampshire, 499
Perry; United States v., 379
Persico; United States v., 547
Perzinski v. Chevron Chem. Co., 369
Peters; Securities & Exch. Comm'n v., 170
Pheaster; United States v., 545
Philadelphia, City of v. Westinghouse Elec. Corp., 919, 922
Piccinonna; United States v., 721
Pickett v. United States, 556
Pierce v. F.R. Tripler & Co., 370
Pierce; United States v., 468
Pierce Cnty. v. Guillen, 911, 1008
Piggie; United States v., 873
Pillsbury Co. v. Cleaver-Brooks Div. of Aqua-Chem, Inc., 509
Pinkerton v. United States, 619
Pinson; United States v., 897
Pintar; United States v., 398
Pizarro; United States v., 593
Plaza; United States v., 789
Plaza-Bonilla v. Cortazzo, 555
Plourde v. Gladstone, 787
Pluta; United States v., 593
Pointer v. Texas, 635, 662
Poncy v. Johnson & Johnson, 834
Posado; United States v., 721
Powell; United States v., 399, 600
Pozefsky v. Baxter Healthcare Corp., 778
Pozsgai; United States v., 868
Pree; United States v., 778
Pregeant v. Pan Am. World Airways, Inc., 140
Prewitt; United States v., 369
Price; United States v., 399
Prieto; United States v., 495
Prince-Oyibo; United States v., 721
Pruitt; United States v., 324
Pryce; United States v., 429
Pulido-Jacobo; United States v., 509
Puryear v. State, 497

Qualley v. Clo-Tex Int'l, Inc., 883

Queen Caroline's Case, 417
Quercia v. United States, 856
Quinones; United States v., 541

R. v. See name of opposing party

Ragland v. Commonwealth, 793
Raleigh's Case, 650
Ramirez; United States v., 191
Ramos; United States v., 532
Ramos-Oseguera; United States v., 969
Ramsey; United States v., 565
Rangel-Arreola; United States v., 294
Ray; United States v., 149, 167, 208, 239, 269, 276, 301, 327, 450,
460, 500, 521
Rebbe; United States v., 380
Redding v. Virginia Mason Med. Ctr., 987
Redman v. John D. Brush & Co., 740
Reed v. Thalacker, 533
Reed; United States v., 595
Reese; United States v., 323, 400
Reeves v. Sanderson Plumbing Prods., Inc., 808, 833
Reichhold Chems., Inc. v. Textron, Inc., 1007
Reyes; United States v., 542, 582
Reynolds v. United States, 641
Reynolds; United States v., 1009
Rhoads Indus., Inc. v. Building Materials Corp., 913
Rhode Island v. Innis, 638
Richards of Rockford, Inc. v. Pacific Gas & Elec. Co., 1005
Richardson v. Marsh, 162, 508
Rindfleisch v. Gentiva Health Sys., Inc., 867
Rivera v. Delaware, 841, 847, 849
Roach v. Springfield Clinic, 1006
Roach; United States v., 520
Roberson; United States v., 957, 958
Roberts v. Hollocher, 429
Roberts v. Hunt, 1007
Robinson v. Magovern, 1006
Robinson; United States v., 429, 516
Rocky Mountain Helicopters, Inc. v. Bell Helicopters, 361
Rodrigues-Felix; United States v., 794
Rodriguez-Berrios; United States v., 794
Rodriguez-Cabrera; United States v., 154
Rogers; United States v., 407
Roland v. Johnson, 457
Romans v. Berghuis, 678
Rosa; United States v., 396, 581
Roulette; United States v., 583
Roviaro v. United States, 1003
Roxbury-Smellie v. Florida Dept. of Corrections, 578
Royer; United States v., 164
Rubin v. United States, 1013
Rummell v. Estelle, 845

Saelee; United States v., 788

Safavian; United States v., 509
St. Clair v. Johnny's Oyster & Shrimp, Inc., 219
St. Mary's Honor Ctr. v. Hicks, 832, 833
Saks; United States v., 511
Salerno; United States v., 600
Sanchez v. Zabihi, 350
Sanders v. Ritz-Carlton Hotel Co., 550
Sandstrom v. Montana, 858, 859, 863
Saneaux; United States v., 520
Santobello v. New York, 378
Santosky v. Kramer, 815
Savoie v. Otto Candies, Inc., 372
Sawyer; United States v., 583
Sayakhom; United States v., 379

1034

Schad v. Arizona, 853

Schechter v. Klanfer, 813, 814, 815
Schmidt v. Duo-Fast Corp., 596
Schmude v. Tricam Indus., Inc., 408
Schoenheinz; United States v., 893
Schoffstall v. Henderson, 986
Scholl; United States v., 325
Scholle; United States v., 574
Schwimmer; United States v., 904
Scott v. Hammock, 994
Scott; United States v., 397
Sealed Case, In re, 904, 1013, 1014
Sears, Roebuck & Co.; NLRB v., 1016
Secor; United States v., 541
Securities & Exch. Comm'n v. See name of opposing party
Segura-Gallegos; United States v., 516
Seiler v. Lucasfilm, Ltd., 249, 254
September 11 Litig., In re, 583, 584
Shafer, Estate of v. Commissioner, 504
Shargel, In re, 935
Sheffield v. Hilltop Sand & Gravel Co., 346
Sheldone v. Pennsylvania Tpk. Comm'n, 1002
Shepard v. United States, 603
Sherrod v. Berry, 306
Shonubi; United States v., 141
Shoup; United States v., 532
Siddiqui; United States v., 593
Silverstein v. Federal Bureau of Prisons, 912
Simmons; United States v., 785
Simon v. G.D. Searle & Co., 955, 956
Simon; United States v., 290, 870
Simplex Inc. v. Diversified Energy Sys., Inc., 296
Sims v. Charlotte Liberty Mut. Ins. Co., 971
Skeddle; United States v., 565
Slater; State v., 655
Smalls; United States v., 609
Smith v. City of Oakland, 157
Smith v. Isuzu Motors Ltd., 578
Smith; State v., 959
Smith; United States v., 793
Smithers; United States v., 794
Socks-Brunot v. Hirschvogel Inc., 346
Sokolow; United States v., 572
Solem v. Helm, 845
Sollars; United States v., 556
Southern Ind. Gas & Elec. Co.; United States v., 624
Spalding Sports Worldwide, Inc., In re, 936
Speaker v. County of San Bernadino, 985
Specht v. Google, Inc., 225
Specht v. Jensen, 360
Special Fed. Grand Jury Empanelled Oct. 31, 1985 Impounded, In
re, 504
Speiser v. Randall, 836
Spell v. McDaniel, 367
Spence; United States v., 214
Spetzer; Commonwealth v., 960
Sphere Drake Ins. PLC v. Trisko, 739, 744
Sprint Nextel Corp. v. AT&T Inc., 866
Sprint/United Mgmt. Co. v. Mendelsohn, 304
Spurlock v. Commissioner, 568
Staelens ex rel. Estate of Staelens v. Staelens, 543
Stanton v. Stanton, 965
Starks; United States v., 214
State v. See name of opposing party
State ex rel. See name of related party
State Farm v. Campbell, 846
Stein; United States v., 379
Steinberg v. Jensen, 971
Stephens v. Miller, 350
Stephens; United States v., 214, 215
Stern; United States v., 379
Stevenson v. Stuart, 144
Stever; United States v., 145
Stewart; United States v., 618
Stockman v. Oakland Dental Ctr., 163
Stoddard v. State, 479
Storm Plastics, Inc. v. United States, 870
Stotts; United States v., 520
Stout; United States v., 155
Stuart v. Unum Life Ins. Co., 458
Sturman; United States v., 986
Subpoena Issued to Commodity Futures Trading Comm'n, In re,
1002
Subpoena Served Upon Comptroller of Currency, In re, 1014
Subramaniam v. Public Prosecutor, 456, 694
Suburban Sew 'N Sweep v. Swiss-Bernina, 904
Sudeen; United States v., 520
Sullivan v. Dollar Tree Stores, Inc., 578
Summers; United States v., 645
Sumner; United States v., 336
Sutton; United States v., 419
Swidler & Berlin v. United States, 895
Sylvester; United States v., 380

Talley; United States v., 902

Talmage v. Harris, 457
Tarantino; United States v., 420
Taylor; United States v., 508
Tedder; United States v., 949
Texas Dept. of Community Affairs v. Burdine, 832
Textron; United States v., 956
Thirtyacre, In re, 868, 870, 872
Thomas v. Kansas Power & Light Co., 877
Thomas; United States v., 283, 721
Thompson; United States v., 217, 619
Threadgill v. Armstrong World Indus., Inc., 218
Timber Prods. Co. v. United States, 515
Tirado-Tirado; United States v., 678
Tocco; United States v., 695
Toledo v. Medical Eng'g Corp., 778

1035

Tome v. United States, 494

Tome; United States v., 550, 624
Tornay v. United States, 935
Torres; United States v., 396, 398
Towerridge, Inc. v. T.A.O., Inc., 370
Trammel v. United States, 892, 956, 962, 966, 967, 968, 969, 974,
975, 976
Transportes Aereos Pegaso v. Bell Helicopter Textron, Inc., 458
Tresnak, In re Marriage of, 878, 879
Troupin v. Metropolitan Life Ins. Co., 1007
Trujillo; United States v., 495
Trull v. Volkswagen of Am., Inc., 361, 504
Trustees of Elec. Workers Local No. 26 Pension Trust Fund v. Trust
Fund Advisors, Inc., 908
Tucker v. Ohtsu Tire & Rubber Co., 909
Tuer v. McDonald, 360, 362
Turner v. United States, 859
Turning Bear; United States v., 170, 676

Under Seal v. United States, 999

United Shoe Mach. Corp.; United States v., 919
United States, In re, 1003, 1009
United States v. See name of opposing party
United States ex rel. See name of related party
United Techs. Corp. v. Mazer, 578
University of Pa. v. EEOC, 1006, 1007
Upjohn Co. v. United States, 920, 929, 930, 933, 954
Urbanik; United States v., 517
Urrego-Linares; United States v., 517
Usery v. Turner Elkhorn Mining Co., 823, 830, 831
U.S. Gypsum Co.; United States v., 923
Utah v. Worthen, 986
Utter; United States v., 287

Vallejo; United States v., 146, 179

Van der Aa Invs., Inc. v. Commissioner, 571
Vanderbilt v. Town of Chilmark, 986
Varoudakis; United States v., 284, 291
Vasconcellos v. Cybex Int'l, Inc., 987
Vazquez v. National Car Rental Sys., Inc., 603
Velarde; United States v., 396, 399
Velez; United States v., 380
Verplank, In re, 994
Vicksburg & M.R.R. v. Putnam, 819
Victor v. Nebraska, 837, 838
Vinson v. Humana, Inc., 985
Virgin Islands, Government of v. Vicars, 666
von Bulow, In re, 930

Wagner v. Firestone Tire & Rubber Co., 407

Wagstaff v. Protective Apparel Corp., 509
Walker v. Horn, 407
Walker v. Soo Line R.R. Co., 782
Walker; United States v., 625
Wallace; United States v., 154
Ward v. Succession of Freeman, 895
Washington; United States v., 494, 627
Watson; United States v., 318
Weaver; United States v., 509
Weber Aircraft Corp.; United States v., 1015
Weil v. Investment/Indicators, Research & Mgmt., 895
Weil v. Seltzer, 296
Weinstein v. Stevens, 584
Weinstock; United States v., 156
Weller; United States v., 561
Wellons; United States v., 324
Wells; United States v., 390
Welsh v. City & Cnty. of S.F., 1017
West; United States v., 158
Westerbrook; United States v., 322
Western & A.R. Co. v. Henderson, 831
Westfield Ins. Co. v. Harris, 283
Westmoreland; United States v., 609
Weston-Smith v. Cooley Dickinson Hosp., Inc., 510
Wheeler v. John Deere Co., 305
White v. Arn, 849, 850
White v. Illinois, 631, 638, 640, 645, 663
White; United States v., 618
Whiting v. Barney, 945
Whitmore; United States v., 397, 398
Whorton v. Bockting, 644
Wichita Land & Cattle Co. v. American Fed. Bank, F.S.B., 905
Wiehe v. Kissick Constr. Co., 823
Wilcox; United States v., 530
Wilkinson v. Carnival Cruise Lines, 513
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Williams; United States v., 280
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Williams v. Virgin Islands, 550
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Willingham v. Crooke, 551
Wilson; United States v., 396, 407
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Wright v. Tatham, 474, 476, 480
Wright; United States v., 625

1036

Wright v. Willamette Indus., Inc., 786, 787

Wyatt v. United States, 969
Wynn v. State, 282

Yahweh; United States v., 163

Yanez v. Minnesota, 677
Yildiz; United States v., 515
Yoder Co., In re, 825
York; United States v., 281, 282
Young; United States v., 114, 419
Zackowitz; People v., 268, 277
Zackson; United States v., 278
Zenni; United States v., 476
Zeus Enters., Inc. v. Alphin Aircraft, Inc., 585
Ziegler v. Department of Fire, 971
Zolin; United States v., 936
Zuchowicz v. United States, 786
Zuckerbraun v. General Dynamics Corp., 1009
Zuniga, In re, 892
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1043
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1044

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1047

INDEX
Abuse. See also Child abuse and molestation evidence; Sexual
assault evidence
domestic violence, hearsay and Confrontation Clause, 674–676
Abuse of discretion, 169–171
Academic researcher's privilege, 1005
Accomplices, corroboration requirement for statements inculpating,
610–611
Adjudicative facts
defined, 867
types subject to judicial notice, 866–867
Admissibility. See specific topic concerned
Admissions by parties. See Party admissions, hearsay exemption
Adoptive admissions, hearsay exemption, 508–510
preliminary fact-finding, 508–509
rationale, 509
silence, by, 510
Adversary system, 87–89
hearsay, regulation premised on excesses of adversary system,
686
natural reasoning, 122–132
reconsideration, 122–124
Adverse inferences against party who fails to call available and
potentially important witness, 468
Adverse witnesses, direct examination of, 107–108
Advocates. See Attorneys
Affirmative defenses, burden of persuasion, 843–854
after Patterson, 846
elements test, 843–844
political compromise test, 844
Powell two-part test, 846
 proportionality test, 845–846
Agents, hearsay exemption for admissions. See Party admissions,
hearsay exemption
Alcohol use. See Drinking
Amnesia, burden of persuasion in civil cases, 813–817
Ancient documents, 218
Animations, authentication of exhibits by, 216
Appellate review, preservation of error for, 110–122
FRE 103, 110–111
making record for, 118–119
appeal of evidentiary rulings, 119
standards of review, 119–120
Arrests
examination of character witnesses regarding, 324
impeachment of witness, 396–397
hearsay, 468
Assertive conduct. See Hearsay
Attorney-client privilege, 899–956
Bentham-Kaplow-Shavell theory, 946–947
“common interest” cases, 903–904
communications
attorney or representative, with, 901–903
legal services, for purposes of, 903–904
contingent claim theory, 941–945
corporate clients, 919–932
investigations of wrongdoing, 930
Upjohn case, 920–929
disclosure of communication or information protected by, 905–919
duty of confidentiality, 914–917
elements, 899–919
exceptions, 934–938
breach of duty, 934
crime or fraud, communications in furtherance of, 930–931, 935–
937
document attested by attorney, 934
fee information, 934–935
 identity of client, 934–935
FRE 502, 905–906

1048

concerns raised by, 910–919

confidentiality of relationship between attorney and client, potential
damage to, 911–912
confidentiality order governing disclosure, effect of, 909–910
constitutionality of application to state proceedings, 911
controlling effect, 910
cost of discovery and, 911
court order governing disclosure, controlling effect of, 909–910
“data dumps,” effect of, 911
document review still required, 910–911
inadvertent disclosure, 908–909
inconsistent state and federal laws, 909
jeopardizing effect on attorney-client privilege as potential, 911–
912
judge-initiated unilateral order, 913
limitations of, 908–909, 910–911
misleading disclosure, unfair to adversary, 907–908
party agreement, controlling effect of, 910
precautions taken to rectify error, 908–909
purposes of, 906–907
reasonable steps to prevent disclosure, 908–909, 912–913
review of documents still required, 910–911
scope of waiver, 907–908
selective disclosure, unfair to adversary, 907–908
state proceeding, disclosure made in, 909, 911
subject matter waiver, 907–908, 912–913
subsequent state and federal proceedings, 907–908, 909, 911,
913
when inadvertent disclosure waives protection, 908–909
government clients, 932–934
holder of, 901, 912
 inadvertent disclosure of confidential material, 908–909. See also
FRE 502, this heading
joint clients, 903–904, 912
“joint defense” cases, 903–904, 912
Model Rules of Professional Conduct, under, 918
Morgan theory, 945–946
proposed Rule 503, 899–901
reflection on, 938–956
rights-based theories, 945–949
scope, 904
waiver of, 930
FRE 502, effect of. See FRE 502, this heading
limitations on, 905–919. See also FRE 502, this heading
protection against. See FRE 502, this heading
Wigmore theory, 947–948
work product doctrine, 905–919, 929, 949–953
Attorneys
attorney-client privilege. See Attorney-client privilege
role of, 88–89
work product doctrine, 905–919, 929, 949–953
Authentication, 196–226
ancient documents, 218
animations, by, 216
business records, 218
chain of custody, 210–212
computer-generated and recorded evidence, 216
conditional admissibility, 201–202
connecting up, 201–202
demonstrative exhibits, 215–216
depictive evidence, 212–215
endpoint foundations, 213
photographs, 212–213, 216–217
process foundations, 213–214
recordings, 212–213, 216–217
technological change impact, 214–215
depictive writings, 218
electronic writings and data, 219
endpoint foundations, 213
FRE 901
flexibility of, 220
practical applications, 198–204
text, 196–197
FRE 902 (text), 223–224
general rule, 196–197
genuineness of exhibits, 219–220
in-court demonstrations and experiments, by, 215–216
judicial determination of sufficiency of evidence to support finding,
197–198
laying foundation, 199–200
overlooked incomplete foundation, 203–204
partial foundation, 201–204
photographs, 212–213, 216–217
procedural steps, 204–207
process foundations, 213–214
production of sufficient evidence to support finding, 197–198
readily identifiable characteristic for identification, 209, 210
real evidence, 208–212
reconstructions of events, by, 216
recordings, 212–213, 216–217
FRE 403 balancing test, applicability, 212
percipient witnesses, 213
voice identification, 220

1049

reducing claim, 202–203

reenactments, by, 216
self-authentication, 223–226
general rule, 223–224
signatures, 220
simulations to establish, 216
sufficient evidence to support finding, 197–198
unchanged condition, 209–210
voice identification, 220
what exhibit is claimed to be, 197
writings, 219
written documents, 217–219

Bad acts evidence. See Specific acts evidence

Bayes' Theorem, 181–184
Behavioral sciences, expert witnesses, 784–785
Bench trials, 89
Best evidence rule, 241–260
defamation actions, 256
definitions, 242
duplicates, 243
exceptions, 244
FRE 1001, 242
FRE 1002, 242
interpretation and illustration, 244
FRE 1003, 243
interpretation and illustration, 244
FRE 1004, 243
interpretation and illustration, 244
FRE 1005, 243
FRE 1006, 243
elaboration, 249–250
FRE 1007, 243
FRE 1008, 243, 251–252
general rule, 244
inscriptions on objects as not writings, 248
opposing party description of contents, 250
originals and duplicates, 248
other evidence of contents, 244
photographs, 247–248
public records, 243
recordings, 247–248
role of court and jury, 251–252
 Seiler case, 254–257
summaries, 243
testimony, 243
voluminous documents underlying summaries, 249–250
writing offered to prove its own content, 244–245
content as fact of independent legal significance, 245–246
event, writing used to prove, 246–247
facts about writing are not “content,” 248
inscriptions on objects, 248
writings, 247–248
written admissions, 243
Bias and prejudice
character evidence
distinguished, 427
prohibition on use of to prove conduct on particular occasion, 266–
270
child molestation evidence, 337
conviction of crime, impeachment of witnesses by, 409
balancing tests, 403–405
extrinsic evidence, 426–427
impeachment of witnesses by. See Impeachment of witnesses
probative value, 156–157
sexual assault evidence, 337
specific acts evidence
prohibition on use of to prove conduct on particular occasion, 266–
270
relevant acts with no character inference, admissibility, 274–275
stereotypes, 140
Bifurcated trials, 99
Blasting licensing privilege, 1018
Bullet lead analysis, 792–793
Burden of persuasion
affirmative defenses in criminal cases, 843–854
after Patterson, 846
allocation in civil cases, 813–817
elements test, 843–844
 political compromise test, 844
Powell two-part test, 846
proportionality test, 845–846
amnesia, 813–817
burden of production, relationship with, 805–807
business records, exclusion for untrustworthiness, 570
civil cases, 809–817
clear and convincing evidence standard in civil cases, 804, 811–812
criminal cases, 836–854
decision rules that manage uncertainty, 809
excusatory defenses, 846
explicit shifts in criminal cases, 839–854
“extreme emotional distress” defense in criminal cases, 840–842
“heat of passion” defense in criminal cases, 839–840
higher burdens in civil cases, 811–812
judicial summary and comment on evidence, relationship with, 820–
821
jury instructions, 98
manslaughter, 842
mitigating factors in criminal cases, 842–843
Mullaney case, 839–840
Patterson case, 840–842
affirmative defenses after, 846

1050

preponderance of evidence standard in civil cases, 804, 809–811,

812
presumptions, 822
reasonable doubt, proof beyond in criminal cases, 836–839
defined, 836–837
Due Process, 836, 842–843
jury instructions, 838–839
relative nature of in civil cases, 813
uncertainty, management of, 809
Winship rule, 836–839
 application in other contexts, 851–854
Burden of production, 95–96
allocation in civil cases, 808
burden of persuasion, relationship with, 805–807
civil cases, 804–808
criminal cases, 854–855
procedural mechanisms for enforcement in civil cases, 807–808
rationale, 804–805
role in civil cases, 804–805
Burden of proof
burden of persuasion. See Burden of persuasion
burden of production. See Burden of production
Business records
authentication, 218
hearsay exception. See Records of regularly conducted activity,
hearsay exception

Character evidence, 261–355

arrests, examination of character witnesses regarding, 324
child molestation evidence. See Child abuse and molestation
evidence
cross-examination of character witnesses. See Cross-examination
defined, 262
essential element of claim or defense, character as, 327–330
civil cases, 316
conduct of victim, attacks on, 310–311
defamation actions, 329
defendant “opening the door” to character evidence, 309–310
diagram, 313–314
exceptions to prohibition on use of to prove conduct on particular
occasion, 268, 309–327
general rule, 328
pertinence requirement, 311
prosecution response, 310
rationale for exceptions, 311–312
relevance of character evidence, 311
 witnesses, character of, 312
FRE 404, 264–270
exceptions to prohibition on use of to prove conduct on particular
occasion, 309–327
explanation, 265–270
methods of proving, 316–320
text, 264–265, 309
FRE 405
interpretation and illustration, 328–329
methods of proving, 316–320
text, 328
general rule, 264–265
habit evidence. See Habit evidence
impeachment by bias distinguished, 427
impeachment of witnesses by. See Impeachment of witnesses
inherent weakness of, 325–326
limitations on use, 325–327
methods of proving, 316–320
opinion evidence, probative value, 317–319
opinion evidence, reputation evidence distinguished, 319
reputation evidence, probative value, 317–319
specific acts, prohibition on use, 317
past sexual behavior evidence. See Past sexual behavior evidence
potential unfairness, 326
problems distinguishing from specific acts evidence, 277–284
prohibition on use of to prove conduct on particular occasion
“bad person” prejudice, 267–268
diversion from main issues, 267
exceptions, 268
general rule, 265–266
low probative value, 267
prejudice, 267–268
rationale, 266–268
weakness of propensity inference, 266–267
relevancy, 261–264
 exceptions to prohibition on use of to prove conduct on particular
occasion, 312–315
sexual assault evidence. See Sexual assault evidence
similar happenings evidence. See Similar happenings evidence
specific acts evidence
mental states not in dispute, problem when, 279–281
prohibition on use of to prove character, 317
relevance to cross-examination of character witnesses, 321
Child abuse and molestation evidence, 330–341
character evidence, 335–341

1051

federal litigation, significance to, 339

FRE 403 balancing test, applicability, 332–333, 335–336
FRE 413 to 415, 331–332
rationale, 336–339
general rules, 331–332
hearsay and Confrontation Clause, 674–676
other Federal Rules of Evidence, 333
preliminary fact-finding, 333–334
probative value, 337–339
rationale, 336–339
recidivism, 337–338
unfair prejudice, 337
Children. See also Child abuse and molestation evidence
parent-child privilege, 999–1000
Circumstantial evidence distinguished from direct evidence, 142–143
Civil cases
burden of persuasion. See Burden of persuasion
burden of production. See Burden of production
hearsay
need for, 685–686
notice-based admission, proposal for, 686–687
judicial notice
mini-directed verdicts, 871
 verdicts, to preserve, 872–873
Classified Information Procedures Act (CIPA), 1010–1011
Clear and convincing evidence standard, 804, 811–812
Clergy-communicant privilege, 991–997
exceptions, 996
expectation of confidentiality, 994–995
holders, 993–994
nature of communications, 994
rationale, 992
scope, 993–996
Closing arguments, 97–98
sample case, 73–83
Co-conspirators, hearsay exemption for, 515–524
Common-interest privilege, 1018
Communications privileges. See Privileges
Competency of witnesses, 190–195
FRE 601
exceptions, 191
rationale, 190–191
text, 190
FRE 602
interpretation and illustration, 191–195
practical application, 194–195
text, 191
general rule, 190
mental competency, 191
personal knowledge requirement, 191–192
expert exemption from, 193
sufficient evidence to support finding, 192–193
Compromise, admissibility of offers, 366–371
criminal cases, 369–370
“disputed claim” requirement, 368–369
exclusionary mandate, 367–368
FRE 403 balancing test, applicability, 367–368
FRE 408
interpretation and illustration, 367–371
 text, 366–367
general rule, 366–367
negotiations, conduct or statements made during, 368
party's own offer, 370
permissible uses of, 367–368
reflections on, 376
third persons, by, 370–371
Computer documents, and hearsay exception, 573–574
Computer-generated and recorded evidence, authentication, 216
Conclusive presumptions, 823
Conditional admissibility, 201–202, 230–237
FRE 104
text, 230
whether fact exists, 231–233
Conditional relevancy, 230–237
FRE 104, elaboration, 231–233
inadequate generalizations, 235–236
judge vs. jury functions, 236–237
objections, 234–235
as problem, 240–241
“sufficiency” standard, 232–233
theoretical justification, 237–238
Confidential information. See Privileges
Confrontation Clause
hearsay, 630–682
child abuse, 674–676
child witnesses, 674–676
Crawford case, 632–643
domestic violence, 674–676
dying declarations, 679
exceptions, 678–682
exemptions and exceptions, 486–487
firmly rooted exceptions, 631
“forfeiture by wrongdoing,” 679–682
non-firmly rooted exceptions, 631–632
non-testimonial statements, 676–677
 Roberts case, 630–632
privileges, 899
testimonial statements
declarant testifying, 677
defined, 645–678
government forensic reports, 661–673
medical interviews and examinations, 676

1052

police questioning, during, 645–661

primary purpose test, 646–661
prior opportunity for cross-examination, 678
satisfying confrontation right, 677–678
unavailability, 678
Confusion of issues, probative value, 157
Constitutional rights
accomplices, corroboration requirement for statements inculpating,
610–611
Confrontation Clause. See Confrontation Clause
Due Process, proof beyond reasonable doubt in criminal cases,
836, 842–843, 846
Fifth Amendment
impeachment of witnesses by character evidence, waiver of Fifth
Amendment rights, 396
party admissions, Constitutional concerns with, 506
hearsay exemption for prior statements of identification,
Constitutional concerns with, 498–499
self-incrimination, Constitutional concerns with party admissions,
506
Contingent claim theory, attorney-client privilege, 941–945
Contradiction, impeachment of witnesses by. See Impeachment of
witnesses
Convictions
impeachment of witnesses by. See Impeachment of witnesses
 judgments of previous convictions, hearsay exception. See
Judgments of previous convictions, hearsay exception
probative value of prior felonies, 179
Corporate clients
attorney-client privilege, 919–932
investigations of wrongdoing, 930
Corroboration
residual hearsay exception, independent corroboration, 625
statements against interest exception, required for, 609–611
statements inculpating accomplices, 610–611
Counsel. See Attorneys
attorney-client privilege. See Attorney-client privilege
Court-appointed experts, 775–778
FRE 706, 775–776
Criminal cases
burden of persuasion. See Burden of persuasion
burden of production, 854–855
guilty pleas, admissibility of withdrawal. See Withdrawn pleas,
admissibility
hearsay, different treatment of, 687
judicial notice, 871–872, 873
no contest pleas, admissibility of withdrawal. See Withdrawn pleas,
admissibility
offers of compromise, 369–370
“other sexual behavior,” admissibility, 347
plea discussions, admissibility of statements made during. See
Withdrawn pleas, admissibility
presumptions, 857–859
reasonable doubt standard. See Burden of persuasion
“sexual predisposition,” admissibility, 347
Cross-examination
character witnesses, 321–325
acts, arrests, and convictions, 324
form of questions, 325
likely knowledge of specific act, 322–323
prejudicial impact of specific acts inquiries, 321–322
 reasonable belief that act occurred, 323–324
relationship between character and specific acts inquiries, 322
relevance of specific acts inquiries, 321
expert witnesses, 765–766
FRE 611, 105–107
interpretation of, 102–104
goals, 106
hearsay exemptions, declarants subject to cross-examination, 488–
491
denial of prior statement, 489
inability to remember prior statement, 489–490
inability to remember underlying events, 489–490
personal knowledge requirement, 491
preliminary fact-finding, 489
impeachment of witnesses by specific instances of conduct, 399
leading questions. See Leading questions
prior inconsistent statements. See Prior inconsistent statements,
hearsay exemption
recross-examination
FRE 611, 104
sample case, 33–34
rehabilitation by, 421
sample case, 17–21, 26–28, 31–33, 40, 49–53, 55–56, 61–64, 67–
68
scope, 103
strategy, 106
techniques, 106–107
statement, examination concerning, 488–489
testimony by declarant, 488–489
Culpability
liability insurance. See Liability insurance, inadmissibility to prove
negligence

1053

offers of compromise. See Compromise, admissibility of offers

 payment of medical expenses. See Medical expenses, admissibility
of payment
subsequent remedial measures. See Subsequent remedial
measures, admissibility
Cumulative evidence, probative value, 159–160
Curative admissibility, 165–166

Declarants. See Hearsay

Declarations against interest. See Statements against interest,
hearsay exception
Defamation actions
best evidence rule, 256
character as essential element of claim or defense, 329
Deliberative process privilege, 1014–1017
Demonstrative evidence, probative value, 163–164
Demonstrative exhibits, authentication, 215–216
Directed verdicts, 96–97
Direct evidence distinguished from circumstantial evidence, 142–143
Direct examination
adverse witnesses, 107–108
FRE 611, 104–105
interpretation and illustration, 102–104
hostile witnesses, 107–108
redirect examination
FRE 611, 104
sample case, 21–22, 33, 56–57, 65
sample case, 8–17, 23–26, 28–31, 36–39, 40–42, 46–49, 53–55,
57–61
Discretion of court. See Judicial discretion
Dismissal motions, 96–97
sample case, 42–43
DNA testing, expert witnesses, 783–784
Domestic violence, hearsay and Confrontation Clause, 674–676
Drinking
Alcoholics Anonymous, admissibility of statements made at
meetings, 994
 drunk driving accident case, self-authenticating evidence in, 224–
225
habit evidence, 298
irrebuttable presumption of impairment for teting above certain
level, 823
laboratory official testifying to blood alcohol test results, 666–667
Due Process, proof beyond reasonable doubt in criminal cases, 836,
842–843, 846
Duplicates, best evidence rule, 243
Dying declarations, hearsay exception, 603–605
Confrontation Clause, 679
FRE 804, 603
preliminary fact-finding, 603–604
rationale, 604–605

Electronic data
authentication, 219
business records exception, 573–574
inadvertent disclosure of protected materials, 905–919
records of regularly conducted activity, 573–574
Employees, hearsay exemption for. See Party admissions, hearsay
exemption
Examination of witnesses, 101–110
breadth of court's power, 102
cross-examination. See Cross-examination
direct examination. See Direct examination
FRE 611, 101–102, 104–108
interpretation and illustration, 102–104
leading questions. See Leading questions
recross-examination. See Recross-examination
redirect examination. See Redirect examination
Exceptions to hearsay rule. See specific exception concerned
Excited utterances, hearsay exception, 529–538
categorical approach, 531–537
categories determining admissibility, 531–532
judicial interpretation, 532–534
 preliminary fact-finding, 534–535
proof of personal knowledge, 535–536
FRE 803, 529
criticisms, 536–537
interpretation and illustration, 530–531
preliminary fact-finding, 530
categorical approach, 534–535
rationale, 530–531
Exclusionary rule, 185–186
Executive privilege, 1009–1017
Exhibits
authentication. See Authentication
defined, 197
Expert witnesses, 708–797
basis of opinion testimony, 738–746
otherwise inadmissible evidence, 741–746
behavioral sciences, 784–785
bullet lead, compositional analysis of, 792–793
case-specific facts, 708
court-appointed experts, 775–778
FRE 706, 775–776
cross-examination, 746–748, 765–766
data on use, 767–770
direct examination, 764–765
disclosure, 759
DNA testing, 783–784
eyewitness identification, 793–794
facts underlying opinion, disclosure of, 746–747

1054

fingerprint identification, 788–792

FRE 403 balancing test, applicability, 712–713
FRE 702, 709–710
2000 amendments, 732–736
FRE 703, 738
 explanation, 738–740
FRE 705, 746
practical application, 747–748
generalizations, 709
handwriting identification, 787–788
helping trier of fact, 710–712
law enforcement investigative tools, 787–794
bullet lead, compositional analysis of, 792–793
eyewitness identification, 793–794
fingerprint identification, 788–792
handwriting identification, 787–788
learned treatises, use of, 741
litigation incentives, 712–713
opinion types, 756–758
case-specific assertions, 756–757
generalization, 756–757
on question of law, 758
subsidiary, 757–758
ultimate, 757–758
patients' statements as basis of expert opinion, 552
psychological sciences, 784–785
qualification, 712
scientific, technical, or other specialized knowledge. See also
Scientific evidence and expert witnesses
Daubert case, 714–722, 732–734
Frye case, 713–714
general rule, 710
Joiner case, 722–725
Kumho Tire case, 725–731
scope of expertise, 755–756
summary witnesses, 778
syndrome evidence, 784–785
toxic tort causation, 785–787
treatises, use of, 741
types, 758–762
consultants vs. testifying, 761–762
 criminal cases, 759
qualifying “on fly,” 760–761
retained vs. percipient, 758–761
ultimate issue, opinion on, 749–754
FRE 704, 749
working with, 762–764
“Extreme emotional distress” defense, burden of persuasion, 840–
842
Extrinsic evidence
impeachment of witnesses by. See Impeachment of witnesses
prejudice, 426–427
Eyewitness identification, 793–794
Fact-finding
judicial. See Judicial fact-finding
juries. See Juries
preliminary. See Preliminary fact-finding
Family history, hearsay exception for. See Personal or family history,
hearsay exception for statements of
Federal Rules of Evidence (FRE). See also specific topic concerned
rationale, 124–127
Fifth Amendment
impeachment of witnesses by character evidence, waiver of rights,
396
party admissions, constitutional concerns with, 506
Fingerprint identification, 788–792
Firsthand knowledge rule, 452–453
Forensic science
behavioral sciences, 784–785
bullet lead, compositional analysis of, 792–793
controversies in, 778–794
DNA testing, 783–784
fingerprint identification, 788–792
government forensic reports, Confrontation Clause and, 661–673
handwriting identification, 787–788
law enforcement investigative tools, 787–794
psychological sciences, 784–785
 toxic tort causation, 785–787
“Forfeiture by wrongdoing,” 615–621
acquiescence in wrongdoing, 618–620
Confrontation Clause and, 679–682
declarant as witness, 616
FRE 403 balancing test, applicability, 620
FRE 804, 615
hearing requirement, 620
intent to procure unavailability of declarant, 616–617
preliminary fact-finding, 616–618
proceedings available in, 617–618
procuring unavailability of declarant, 616
rationale, 618
Former testimony, hearsay exception, 594–603
FRE 804, 594
identity of parties, 598–599
method of introducing, 601–602
not party to original action, offered against, 598–599
objections, 602
“offered on same issue” requirement, 596–597
opportunity to develop testimony
no opportunity, 596
offered on same issue, 596–597
same party or predecessor in interest, 597
similar motive, 594–596
“trial, hearing or lawful deposition,” 594
where lacking, 596

1055

predecessors in interest
defined, 599
opportunity to develop testimony, 597
preliminary fact-finding, 594–597
rationale, 597–598
similar motive
 lack of, due to difference in procedural context, 600–601
opportunity to develop testimony, 594–596
Foundation for proof, 189–260
authentication, 196–226. See also Authentication
best evidence rule, 241–260. See also Best evidence rule
competency, 190–195. See also Competency of witnesses
conditional admissibility. See Conditional admissibility
conditional relevancy. See Conditional relevancy
judicial fact-finding. See Competency of witnesses; Judicial fact-
finding
lay opinion, 706
overview, 189
Fraud exception to attorney-client privilege, 930–931, 935–937
Freedom of Information Act (FOIA), 1014

Government clients and attorney-client privilege, 932–934

Government employees, admissions by, 515
Government informant's privilege, 1003
Government privileges, 1009–1017
Graymail, 1011
Guilty pleas, admissibility of withdrawal. See Withdrawn pleas,
admissibility

Habit evidence, 293–301

character distinguished, 295
drinking, 298
strategy, 296–297
defined, 263
FRE 406
interpretation and illustration, 293–300
text, 293
general rule, 293
importance, 294
judicial fact-finding, 297–298
methods of proving, 294–295
organizational behavior, 299–300
 rationale, 296
similar happenings distinguished, 303–304
Handwriting identification, 787–788
Harmless error, 120, 179
Hearsay, 441–697
abolition, proposal for, 685
accomplices, corroboration requirement for statements inculpating,
610–611
constitutional issues, 611
adoptive admissions exemption, 508–510
preliminary fact-finding, 508–509
rationale, 509
silence, by, 510
agents, exemption for admissions. See Party admissions, hearsay
exemption
arrests, 468
assertive vs. nonassertive conduct, 465–471
ambiguity, danger of, 467
difficulty of application of intent test, 467
disguised assertions, 468–469
exclusion of nonassertive conduct, 467–468
intent test, difficulty of application, 467
lack of hearsay dangers, 465–466
necessity, 466
nonverbal conduct, 463–464
policy arguments regarding admission of nonassertive conduct,
467–468
business records exception. See Records of regularly conducted
activity, hearsay exception
civil cases
need for, 685–686
notice-based admission, proposal for, 686–687
co-conspirators, exemption for admissions. See Party admissions,
hearsay exemption
Confrontation Clause. See Confrontation Clause
criminal cases, different treatment in, 687
criticisms of rule, 682–687
rebutted, 687–688
cross-examination, witnesses subject to. See Cross-examination
declarants, witnesses distinguished, 447–449
defined, 441
depictive writings, 218
dying declarations exception. See Dying declarations, hearsay
exception
employees, exemption for admissions. See Party admissions,
hearsay exemption
exceptions. See also specific exception concerned
approach to admissibility under, 483–487
categorical approach, 483–484
Confrontation Clause, 486–487
foundational requirements, 484–485
FRE 805, 485–486
multiple exemptions and exceptions, 485
process of admission, 484
rationale, 483
excesses of adversary system, regulation premised on, 686
excited utterances exception. See Excited utterances, hearsay
exception

1056

exemptions, 487–524. See also specific exemption concerned

approach to admissibility under, 483–487
categorical approach, 483–484
Confrontation Clause, 486–487
cross-examination, witnesses subject to. See Cross-examination
foundational requirements, 484–485
FRE 801, 487–488
multiple exemptions and exceptions, 485
process of admission, 484
rationale, 483, 491
family history, exception for statements of. See Personal or family
history, hearsay exception for statements of
firsthand knowledge rule, 452–453
“forfeiture by wrongdoing.” See “Forfeiture by wrongdoing”
former testimony exception. See Former testimony, hearsay
exception
FRE 801, 442
assertive vs. nonassertive conduct, 465–471
intent test, 475–481
interpretation and illustration, 443–450
nonhearsay statements, 454–462
nonverbal conduct, 462–465
revision, proposal for, 481–483
FRE 802, 442
interpretation and illustration, 443–450
general rule, 441–443
identification, exemption for prior statements of. See Identification,
hearsay exemption for prior statements of
impeachment of witnesses by conviction of crime, 411
within hearsay, 485–486
hidden in lay opinion, 703
implications, 450–454
intent test, 475–481
burden of proof, 478
difficulties in application of, 467, 477–478
judicial creation of, 476
literal approach, rejection, 475–481
nonverbal conduct, 464–465
sincerity risk, identifying, 477
unstated beliefs, intent to assert, 475–481
interest, exception for statements against. See Statements against
interest, hearsay exception
judgments of previous convictions exception. See Judgments of
previous convictions, hearsay exception
judicial discretion, proposal for, 684
lay opinion, 452–453
medical diagnosis or treatment, exception for statements made for.
See Medical diagnosis or treatment, hearsay exception for
statements made for
multiple, 453, 485–486
multiple hearsay. See Multiple hearsay
nonhearsay statements, 454–462
credibility-related, 458
effect on listener, 456–457
identifying nonhearsay uses, 458–459
legally operative facts, 457–458
statements relevant for both hearsay and nonhearsay uses, 459
uses of, 454–459
nonverbal conduct, 462–465
assertive conduct, 463
intent test, 464–465
nonassertive conduct, 463–464
relevancy, 462–463
out-of-court statements, testimony about, 452
party admissions exemption. See Party admissions, hearsay
exemption
past recollections recorded exception. See Past recollections
recorded, hearsay exception
personal or family history, exception for statements of. See
Personal or family history, hearsay exception for statements of
present recollections refreshed, 558–562
FRE 612, 560
present sense impressions exception. See Present sense
impressions, hearsay exception
prior consistent statements exemption. See Prior consistent
statements, hearsay exemption
prior inconsistent statements exemption. See Prior inconsistent
statements, hearsay exemption
public records and reports exception. See Public records and
reports, hearsay exception
rationale, 682–683
rebuttal of rule criticisms, 687–688
reflection on, 481–483, 682–689
reformulation of policy, proposal for, 685–687
relevancy, 443–447
reliability, criticism of, as rationale, 683–685
residual exception. See Residual hearsay exception
servants, exemption for admissions. See Party admissions, hearsay
exemption
statements against interest exception. See Statements against
interest, hearsay exception
state-of-mind declarations exception. See State-of-mind
declarations, hearsay exception
testimonial qualities of declarant, 445–447
truth that statement is offered to prove, 450–452

1057

unavailability of declarant
caused by proponent, 593
exceptions not requiring, 524–589. See also specific exception
concerned
exceptions requiring, 589–621. See also specific exception
concerned
FRE 803, 525–528
FRE 804, 590–591
FRE 806, 525
grounds for finding, 591–593
other exceptions, 585–586
preference for former testimony or deposition, 592
preliminary fact-finding, 592
reasonable means to procure attendance, 592–593
unstated beliefs, 471–475
common law approach, 474–475, 478–479
intent test, 475–481
literal approach, 473–474
relevancy and, 471–473
witnesses, declarants distinguished, 447–449
“Heat of passion” defense, burden of persuasion, 839–840
Hostile witnesses, direct examination of, 107–108
Hostile work environment cases, past sexual behavior evidence, 346
Hypothetical questions, 552, 735, 747

Identification, hearsay exemption for prior statements of, 496–502

Constitutional concerns, 498–499
FRE 801, 487–488
general rule, 487–488
made after perceiving person, 496–497
person, identification of, 497
preliminary fact-finding, 496–497
rationale, 497–498
someone declarant perceived earlier, 496–497
Identification of exhibits. See Authentication
Impeachment of witnesses, 385–439
bias, by, 425–429
character evidence distinguished, 427
extrinsic evidence, 426–427
relevance, 425–426
Wigmore on, 425
bolstering credibility, 390
character evidence, by, 390–415
arrests, charges, and judicial or administrative findings, 396–397
bias distinguished, 427
cross-examination, 399
extrinsic evidence, prohibition against use, 395
Fifth Amendment waiver, 396
FRE 403 balancing test, applicability, 397–398
FRE 608, 391
FRE 609, 402–403
good-faith requirement, 398–399
limited scope of inquiry, 395
opinion evidence of untruthfulness, 391–392
questions about arrests, charges, and findings, 396–397
reputation evidence of untruthfulness, 391–392
 specific acts of witnesses being testified about, questioning about,
399–400
specific acts of witnesses themselves, questioning about, 396–397
truthfulness, showing good character for, 392–393, 399
untruthfulness, meaning of, 396
contradiction, by, 431–436
extrinsic evidence, 432
“no extrinsic evidence to impeach on a collateral matter” doctrine,
433–434
relevance, 431–432
Wigmore on, 431–432
conviction of crime, by, 402–415
balancing tests, 403–405
criminal defendants, reverse balancing test for, 405, 407–408
“dishonest act or false statement” convictions, automatic
admissibility, 406–407
extrinsic evidence, 409
factual details of conviction, 405–406, 410
hearsay evidence, 411
misdemeanor convictions, by, 589
other witnesses, 405
practical considerations, 411–413
prejudice, 409
probative value, 404
rationale, 408–409
relationship between FRE 609(a) and 608(b), 410
unfair prejudice, 404–405
extrinsic evidence, 389–390
bias, of, 426–427
contradiction, of, 432
conviction of crime, of, 409
mental or sensory incapacity, of, 430
prior statements of witness, of, 418–419
impeachment evidence
substantive evidence distinguished, 388–389
types of, 387–388
inconsistent statements, 436
inferential process, 385–389
testimonial inferences, 385–387
learned treatises, by, 432–433

1058

mental or sensory incapacity, by, 429–431

bar to testimony, 430
extrinsic evidence, 430
relevance, 429–430
misdemeanor convictions, by, 589
“no extrinsic evidence to impeach on a collateral matter” doctrine,
433–434
directly relevant evidence, 433
evidence impeaching apart from contradiction, 433–434
logically undermining witness's story, 434
test for “collateralness,” 434
perjury and, 436–437
prior statements of witness, by, 415–424
collateral matters, inconsistent statements about, 420–421
common law departures, 418
examination of witnesses, 417–418
experts, statements in treatises, 432–433
extrinsic evidence, 418–419
FRE 613, 416
loss of memory and inconsistency, 420
prior consistent statements, 421
prior inconsistent statements, 416–421
probative value, 419–421
putting inconsistent statements in context, 421
rehabilitation, admissibility for, 421
risk of improper substantive use, 419
truth, admissibility for, 419
reflection on, 436–437
truthfulness defined, 391
Inconsistent statements, impeachment of witnesses, 436
In-court demonstrations and experiments, authentication by, 215–
216
Inferences
impeachment of witnesses, testimonial inferences, 385–387
privileges, drawing adverse inferences from, 898
probative value, strength of underlying inferences, 153
subsequent remedial measures, inference of negligence or
culpability, 358
Insanity defense, 902–903
Instructions to jury. See Jury instructions
Insurance, inadmissibility to prove negligence. See Liability
insurance, inadmissibility to prove negligence
Intent
hearsay, intent test. See Hearsay
specific acts evidence, problems in proving, 278–279
exclusion, argument for, 279–280
Old Chief case, 280–281
specific acts evidence where not disputed, 279–281
Interest, statements against. See Statements against interest,
hearsay exception
Intoxication. See also Drinking
habit evidence, 298
Investigative reports, hearsay exception, 578
Irrebuttable presumptions, 823

JNOV, 96–97, 100

Joint defense privilege, 1018
Journalist's privilege, 1003–1005
Judges
background knowledge, judicial notice of, 877
role of, 89
Judgments notwithstanding the verdict (JNOV), 96–97, 100
Judgments of previous convictions, hearsay exception, 588–589
FRE 803, 588
impeachment by misdemeanor convictions, 589
 preliminary fact-finding, 588–589
rationale, 589
Judicial discretion
abuse of discretion, 169–171
hearsay, proposal regarding, 684
probative value, 181–184
appellate review, 169–180
regulating, 185–186
Judicial fact-finding, 226–241
admissibility, 227
burden of persuasion, 228–229
FRE 104, 227
general rule, 227
habit evidence, 297–298
process of decision, 229
standard of proof, 228
Judicial notice, 865–885
adjudicative facts
defined, 867
types of facts subject to judicial notice, 866–867
background knowledge, use
judge, knowledge of, 877
jury, knowledge of, 876–877
civil cases
mini-directed verdicts, 871
verdicts, to preserve, 872–873
common knowledge, cognizance of, without judicial notice, 876–879
judge, general background knowledge of, 877
jury, general background knowledge of, 876–877
criminal cases
binding notice, 873
judicial comments, 871–872
verdicts, to preserve, 873

1059
 decision-making, as part of, 875–881
FRE 201, 865–866
scope, 867–868
judicial comments, 871–872
legislative facts, cognizance, 880–882
mini-directed verdicts, 871
sources of information, 870
standards, 868–870
state of knowledge required, 867–868
substantive law, cognizance, 882
Thirtyacre case, 868–870
timing, 872–873
Judicial summary and comment on evidence, 817–821, 856–857
accuracy, 821
advantages, 818–819
burden of persuasion, relationship with, 820–821
civil cases, 817–821
criminal cases, 856–857
criteria for evaluating, 819–820
disadvantages, 818–819
standardized comments, 820
Juries
background knowledge, judicial notice, 876–877
decision matrix sample, 130
deliberations, 98–99
instructions. See Jury instructions
natural reasoning and behavior of fact finders, 131–132
past recollections recorded, reading to jury, 556
peremptory challenges, 93
probative value and danger of misleading jury, 158–159
rationality assumption, 184–185
role of, 88
selection, 92–93
venire, 92–93
voir dire, 92–93
Jury instructions
 burden of persuasion, 98
preliminary jury instructions, 93
reasonable doubt, proof beyond, 838–839
sample case, 2–6, 68–73, 83

Knowledge
business records exception, personal knowledge requirement, 566
competency of witnesses, personal knowledge requirement, 191–
192
cross-examination
character witnesses, likely knowledge of specific act, 322–323
hearsay exemptions, personal knowledge requirement, 491
excited utterances exception, proof of personal knowledge, 535–
536
hearsay, firsthand knowledge rule, 452–453
judges, judicial notice of background knowledge of, 877
juries, judicial notice of background knowledge of, 876–877
lay opinion not based on scientific, technical or other specialized
knowledge, 705–706
party admissions exemption, personal knowledge requirement
agents, servants and employees, 514
party's own statement, 504–505
past recollections recorded exception
accurate reflection of witness's knowledge, 555–556
personal knowledge, statement made with, 555
personal or family history exception, personal knowledge
requirement, 613–614
present sense impressions exception, proof of personal knowledge,
535–536
probability of fact of consequence determined from knowledge and
experience, 138
statements against interest exception, ascertaining declarant's
knowledge, 607

Labor dispute mediator's privilege, 1018

Law enforcement personnel
 investigative tools, expert witnesses, 787–794
bullet lead, compositional analysis of, 792–793
eyewitness identification, 793–794
fingerprint identification, 788–792
handwriting identification, 787–788
public records and reports exception, 580–582
prosecutorial function, 581–582
relationship with other exceptions, 582–583
routine and regular activities, 582
Lay opinion, 699–708
estimates, 701
fact vs. opinion, 702–703
foundation, 706
FRE 701, 699
explanation, 700–708
hearsay, 452–453
helpful to clear understanding of testimony or determination of fact
in issue, 704–705
hidden hearsay, 703
inferences, 702
not based on scientific, technical or other specialized knowledge,
705–706
objections to, 706
overgeneralization, 703

1060

party admissions
agents, servants and employees, 514
party's own statement, 504–505
proximity to disputed issue, 704–705
questions of law, 706–707
rationally based on perception of witness, 703
speculation, 703
subjective feelings, 702
summaries, 701
Leading questions, 108–110
defined, 108–109
FRE 611, 108–110
interpretation and illustration, 108–110
tactical considerations, 110
Learned treatises
expert witnesses using, 741
impeachment or rehabilitation of witnesses by, 432–433
Liability
offers of compromise, admissibility. See Compromise, admissibility
of offers
payment of medical expenses, admissibility. See Medical expenses,
admissibility of payment
subsequent remedial measures, admissibility. See Subsequent
remedial measures, admissibility
Liability insurance, inadmissibility to prove negligence, 372–373
exclusionary mandate, 372–373
FRE 411
interpretation and illustration, 372–373
text, 372
general rule, 372
permissible uses of evidence, 373
reflections on, 376
Libel actions
best evidence rule, 245–246
character as essential element of claim or defense, 329
Licensed genetic counselor's privilege, 1018
Limited admissibility. See Jury instructions

Mandatory rebuttable presumptions. See Presumptions

Manslaughter, burden of persuasion, 842
Marital privileges, 956–969
communications privilege, 956–961
“communication,” defined, 959
confidentiality, 958–959
elements, 956–957
 exceptions, 959–960
holder, 957
rationale, 956–957
scope, 957–959
same-sex couples, 958
testimonial privilege, 961–969
elements, 962–968
exceptions, 968–969
valid marriage requirement, 957–958
Materiality. See Relevancy
Medical diagnosis or treatment, hearsay exception for statements
made for, 549–553
diagnostic evaluations for litigation, 552
FRE 803, 549
patients' statements as basis of expert opinion, 552
pertinence requirement, 550–551
preliminary fact-finding, 549–550
proof of medical purpose, 551
rationale, 550
Medical expenses, admissibility of payment, 372
admissibility of statements made in conjunction with, 371–372
exclusionary mandate, 371
FRE 409
interpretation and illustration, 371–372
text, 371
general rule, 371
permissible uses of evidence, 372
reflections on, 376
similar expense definition, 372
“similar” expenses, what constitutes, 372
Mental incapacity, impeachment of witnesses by, 429–431
bar to testimony, 430
extrinsic evidence, 430
relevance, 429–430
Mini-directed verdicts, judicial notice, 871
Misleading jury, probative value, 158–159
Model Rules of Professional Conduct, attorney-client privilege under,
918
Molestation evidence. See Child abuse and molestation evidence
Motions
dismissal motions, 96–97
sample case, 42–43
to exclude testimony (sample case), 35–36
in limine, 91–92
post-trial motions, 99–101
pretrial motions, 91–92
Motive, specific acts evidence used to prove, 272
Multiple hearsay, 453, 485–486
business records exception, 571–573
sources of information with no business duty, 572–573
use of multiple exemptions and exceptions, 573
past recollections recorded exception, 557–558
public records and reports exception, 583–585

1061

administrative findings, 585

admissibility of otherwise inadmissible sources, 584
admissibility of report itself, 583–584

Natural reasoning
adversary system, 122–132
behavior of fact finders, 131–132
trials, 127–131
Negligence
liability insurance, inadmissibility to prove. See Liability insurance,
inadmissibility to prove negligence
offers of compromise, admissibility. See Compromise, admissibility
of offers
payment of medical expenses, admissibility. See Medical expenses,
admissibility of payment
 subsequent remedial measures, admissibility. See Subsequent
remedial measures, admissibility
Negotiations, privilege for communications made in, 1001–1002
New trials, 100–101
No contest pleas, admissibility of withdrawal. See Withdrawn pleas,
admissibility
Nonassertive conduct. See Hearsay
Nonhearsay statements. See Hearsay
Nonverbal conduct. See Hearsay
Notice
judicial notice. See Judicial notice
past sexual behavior evidence, notice requirement, 348
residual hearsay exception, 627–628

Objections, 110–122
admissibility of answer, 112–114
former testimony, admissibility, 602
FRE 103, 110–117
improper form of question, 112–114
stating, 116–117
tactical considerations, 117
timing, 114–115
trial cheat sheet, 120–122
types of, 112–114
Offers of compromise, admissibility. See Compromise, admissibility
of offers
Offers of proof, 111–112
Official information privilege, 1014–1017
Opening statements, 93–94
sample case, 6–8, 44–46
Opinion testimony. See also Expert witnesses; Lay opinion
basis of testimony, 738–746
otherwise inadmissible evidence, 741–746
Opportunity, specific acts evidence used to prove, 272
Other crimes. See Specific acts evidence
Out-of-court statements, testimony about, 452
Parent-child privilege, 999–1000
Party admissions, hearsay exemption, 502–524
adoptive admissions, 508–510
preliminary fact-finding, 508–509
rationale, 509
silence, by, 510
agents, servants and employees, 511–515
attorneys, 512
government employees, 515
lay opinion, 514
matter within scope of agent's employment, statement regarding,
512–513
personal knowledge, 514
preliminary fact-finding, 511–513
rationale, 513–514
specially authorized statements, 512
Bruton case, 507–508
co-conspirators, 515–524
additional evidence requirement, 519–520
Bourjaily case, 518–519
during course of conspiracy, 516–517
in furtherance of conspiracy, 517
preliminary fact-finding, 515–517
process for admission, 520
proof of co-membership, 516
rationale, 518
FRE 801, 502
adoptive admissions, 508–510
agents, servants and employees, 511–515
co-conspirators, 515–524
party's own statement, 503–505
general rule, 502–503
multiparty cases, 507–508
party's own statement, 503–505
individual capacity, 504
 lay opinion, 504–505
personal knowledge, 504–505
preliminary fact-finding, 503–504
representative capacity, 504
preliminary fact-finding
adoptive admissions, 508–509
agents, servants and employees, 511–513
co-conspirators, 515–517
identity of declarant, 506–507
party's own statement, 503–504
rationale, 505–506
fairness, 505–506
Fifth Amendment concerns, 506
opportunity to explain, 505–506
statements against interest distinguished, 607
Past recollections recorded, hearsay exception, 553–563

1062

accurate reflection of witness's knowledge, 555–556

contents of statement, 554
failed memory requirement, 554–555
FRE 803, 553
fresh memory, statement made with, 555
multiple declarants, created by, 557–558
multiple hearsay, 557–558
personal knowledge, statement made with, 555
preliminary fact-finding, 554–556
present recollections refreshed, 558–562
FRE 612, 560
rationale, 557
record read to jury, 556
Past sexual behavior evidence, 341–353
applicability in other contexts, 345
defendant's right to testify, 350
discovery, 350–351
 FRE 412
elaboration, 348–351
interpretation and illustration, 342–348
scope, 345–348
text, 342
general rule, 342
hostile work environment cases, 346
notice requirement, 348
“other sexual behavior”
approaches to exclusion, 349–350
civil cases, admissibility in, 346
construed, 344
criminal cases, admissibility in, 347
particular occasion, behavior on, 344–345
rape shield laws, 350
rationale for exclusion, 348–349
relevance, 343
“sexual predisposition”
approaches to exclusion, 349–350
civil cases, admissibility in, 346
construed, 344
criminal cases, admissibility in, 347
underlying propensity theory, 343–344
Payment of medical expenses, admissibility. See Medical expenses,
admissibility of payment
Peer review privilege, 1006–1007
Peremptory challenges, 93
Perjury and impeachment of witnesses, 436–437
Permissive presumptions, 829–830
Personal knowledge. See Knowledge
Personal or family history, hearsay exception for statements of, 613–
615
FRE 804, 613
personal history, 614
personal knowledge, 613–614
preliminary fact-finding, 613–614
 rationale, 614
relations and intimate associates, statements of, 614
Photographs, probative value, 163–164, 174, 180
Physician-patient privilege, 970–972
Plan, specific acts evidence used to prove, 272
Pleas, admissibility of withdrawal. See Withdrawn pleas, admissibility
Post-evidence matters, 97–98
Post-trial motions, 99–101
Prejudice. See Bias and prejudice
Preliminary fact-finding
business records, 564–568
child molestation evidence, 333–334
dying declarations, 603–604
excited utterances, 530
categorical approach, 534–535
“forfeiture by wrongdoing,” 616–618
former testimony, 594–597
identification, prior statements of, 496–497
judgments of previous convictions, 588–589
medical diagnosis or treatment, statements made for, 549–550
party admissions
adoptive admissions, 508–509
agents, servants and employees, 511–513
co-conspirators, 515–517
identity of declarant, 506–507
party's own statement, 503–504
past recollections recorded, hearsay exception, 554–556
personal or family history, statements of, 613–614
present sense impressions, 528–529
categorical approach, 534–535
prior consistent statements, 493–495
prior inconsistent statements, 491–492
public records and reports, 577–580
regularly conducted activity, records of, 564–568
residual hearsay exception, 623–624
sexual assault evidence, 333–334
 specific acts, 273–274
statements against interest, 606–607
state-of-mind declarations, 539
unavailability of declarant, 592
Preliminary jury instructions, 93
Preparation, specific acts evidence used to prove, 272
Preponderance of evidence standard, 804, 809–811, 812
Presentation of evidence, 94–96
burden of production, 95–96
order of presentation, 94–95
Present recollections refreshed, 558–562
FRE 612, 560
Present sense impressions, hearsay exception, 528–529

1063

categorical approach, 531–537

categories determining admissibility, 531–532
judicial interpretation, 532–534
preliminary fact-finding, 534–535
proof of personal knowledge, 535–536
FRE 803
criticisms, 536–537
text, 528
preliminary fact-finding, 528–529
categorical approach, 534–535
rationale, 529
Preservation of error for appellate review. See Appellate review,
preservation of error for
Presidential communications privilege, 1012–1014
Presumptions, 857–859
burden of persuasion, 822
civil cases, 821–835
complexity, 830–834
conclusive presumptions, 823
criminal cases, 857–859
 defined, 821
FRE 301, 834
“federal statute” exception, 834
other means of allocating burdens of production and persuasion,
relationship with, 835
irrebuttable presumptions, 823
mandatory rebuttable presumptions, 824–829
decision-making, 828
mandatory persuasion burden presumptions, 826–827
mandatory production burden presumptions, 824–825
permissive presumptions, 829–830
“weak” presumptions, 829–830
Winship rule, 857–859
Pretrial motions, 91–92
Prior arrests, examination of character witnesses regarding, 324
Prior consistent statements, hearsay exemption, 493–495
FRE 801, 491–493
statements outside scope of, 495
improper influence or motive, charge of, 494
rebutting, 494–495
preliminary fact-finding, 493–495
rationale, 495
recent fabrication, charge of, 494
rebutting, 494–495
Prior identification. See Identification, hearsay exemption for prior
statements of
Prior inconsistent statements, hearsay exemption, 491–493
evasion, inconsistency due to, 492
FRE 801, 491–493
interpretation and illustration, 491–493
statements outside scope of, 493
general rule, 491–492
at hearing, 492
inconsistency, 492
under penalty of perjury, 492
preliminary fact-finding, 491–492
 at proceeding, 492
rationale, 492–493
at trial, 492
Prior statements, impeachment of witnesses by. See Impeachment
of witnesses
Privileges, 887–1024
academic researcher's privilege, 1005
attorney-client privilege. See Attorney-client privilege
blasting licensing, 1018
clergy-communicant privilege. See
Clergy-communicant privilege
common interest, 1018
Confrontation Clause, 899
current status of law, 891–893
deliberative process privilege, 1014–1017
drawing adverse inferences from, 898
exceptions, 898
executive privilege, 1009–1017
FRE 501, 891
general structure, 894–899
government informant's privilege, 1003
government privileges, 1009–1017
historical background, 890–893
holders, 893
invocation, 894–896
joint defense, 1018
journalist's privilege, 1003–1005
labor dispute mediator's, 1018
licensed genetic counselors, 1018
limits, 896
Constitutional limitations, 899
marital privileges. See Marital privileges
miscellaneous, 1017–1018
official information privilege, 1014–1017
outside sources of information, protecting, 1002–1005
overview, 887–889
parent-child privilege, 999–1000
peer review privilege, 1006–1007
physician-patient privilege, 970–972
Presidential communications privilege, 1012–1014
professional-client privileges, 998
psychotherapist-patient privilege. See Psychotherapist-patient
privilege
scholar's privilege, 1005
scope, 896
self-evaluative privilege, 1007–1009

1064

settlement negotiations, communications made in, 1001–1002

state secrets privilege, 1009–1011
unique operation of privilege rules, 889–890
waiver, 896–897
White House counsel, 895–896
Probative value, 151–180
authentication of exhibits
demonstrative evidence, 215–216
recordings, 212
balancing test, 152–163
Bayes' Theorem, 181–184
certainty of starting point, 154
child molestation evidence, 332–333, 335–336
confusion of issues, danger of, 157
credibility, 154
cumulative evidence, danger of, 159–160
curative admissibility, 165–166
defined, 152
demonstrative evidence, 163–164
expert witnesses, 712–713
“forfeiture by wrongdoing,” 620
FRE 403, 151–167, 169–180
dangers of, 156–160
 general rule, 151
Hitt case, 171–173
impeachment of witnesses, specific instances of conduct, 399
inferential chain, length of, 154
judicial discretion, 181–184
appellate review, 169–180
misleading jury, danger of, 158–159
offers of compromise, 367–368
Old Chief case, 174–178
photographs, 163–164, 174, 180
probability, 182–184
sexual assault evidence, 332–333, 335–336
similar happenings evidence, 304–306
spoliation of evidence, 164–165
statistics, 182–184
strength of underlying inferences, 153
subsequent remedial measures, 363
substantially outweighed by dangers of FRE 403, 160–163
defined, 160–161
limiting instructions, effect of, 161–163
undue delay, danger of, 159–160
unfair prejudice, danger of, 156–157
victims' statements, 164
waste of time, danger of, 159–160
Professional-client privileges, 998
Propensity evidence, 261–355. See also Character evidence
defined, 262
past sexual behavior evidence, underlying propensity theory, 343–
344
specific acts and, 292
Psychological sciences, expert witnesses, 784–785
Psychotherapist-patient privilege, 972–991
exceptions, 987–989
compelled disclosures, 988
Constitutional limitations on, 987–988
crime-fraud exception, 989
 dangerous patients, 988–989
holders, 984–985
Jaffee case, 972–983
nature of communications, 985–986
scope, 984–987
waiver, 986
Public records and reports, hearsay exception, 576–585
activities of office, 577
criminal case exclusion, 578–579
duty, matters reported pursuant to, 577–578
FRE 803, 576
investigative reports, 578
law enforcement personnel, 580–582
prosecutorial function, 581–582
relationship with other exceptions, 582–583
routine and regular activities, 582
multiple hearsay, 583–585
administrative findings, 585
admissibility of otherwise inadmissible sources, 584
preliminary fact-finding, 577–580
rationale, 580
untrustworthiness, exclusion for, 579

Qualification as expert witnesses, 712

Rape shield laws, 350. See also Past sexual behavior evidence
Real evidence, authentication, 208–212
Reasonable doubt standard. See Burden of persuasion
Rebuttal examination, sample case, 66–67
Reconstructions of events, authentication of exhibits by, 216
Recordings, authentication of. See Authentication
Records of regularly conducted activity, hearsay exception, 563–576
business duty, made pursuant to, 567
computer documents, 573–574
custodians, 567–568
diagnoses, 570–571
 electronic data, 573–574
FRE 803, 563–564
application, 569–574
multiple hearsay, 571–573
sources of information with no business duty, 572–573

1065

use of multiple exemptions and exceptions, 573

near contemporaneity requirement, 566
opinions, 570–571
personal knowledge requirement, 566
preliminary fact-finding, 564–568
qualified witnesses, 567–568
rationale, 568–569
regular practice requirement, 565–566
treatise or periodical, reliable authority requirement, 585–586
untrustworthiness, exclusion for, 569–570
burden of persuasion, 570
circumstances indicating, 570
website documents, 573–574
what constitutes record of regularly conducted activity, 564–565
Recross-examination
FRE 611, 104
sample case, 33–34
Redirect examination
FRE 611, 104
sample case, 21–22, 33, 56–57, 65
Reenactments, authentication of exhibits by, 216
Refreshing memory, 558–562
FRE 612, 560
Regularly conducted activities, records of. See Records of regularly
conducted activity, hearsay exception
Rehabilitation of witnesses. See Impeachment of witnesses
Relevancy, 133–151
background information, 143–144
chain of reasoning, 139, 142–143, 147
character evidence, 261–264
exceptions to prohibition on use of to prove conduct on particular
occasion, 312–315
circumstantial vs. direct evidence, 142–143
conditional relevancy. See Conditional relevancy
defined, 134
direct vs. circumstantial evidence, 142–143
FRE 401, 134–151
applications, 144–148
text, 134
FRE 402, 134–151
applications, 144–148
text, 134
general rule, 134
hearsay, 443–447
impeachment of witnesses
bias, by, 425–426
contradiction, by, 431–432
mental or sensory incapacity, by, 429–430
judges' assessment, 140
materiality, 135–137
nonverbal conduct to prove belief, 462–463
offer for proof of fact of consequence, 135–137
past sexual behavior evidence, 343
probability of fact of consequence, 135–141
admissibility, policy favoring, 140–141
“any tendency” standard, 137–138
inferential reasoning, generalized knowledge used in, 138
knowledge and experience, inferential reasoning based on
generalizations from, 138
limits on generalizations, 139–140
reasonable generalizations, 138–140
reflections on concept, 181–184
specific relevant acts with no character inference, admissibility. See
Specific acts evidence
 sufficiency distinguished, 141–142
Thayer on, 133–134
unstated beliefs, 471–473
Wigmore on, 147
Remedial measures, admissibility. See Subsequent remedial
measures, admissibility
Reputation evidence
impeachment of witness, and reputation evidence of untruthfulness,
391–392
opinion evidence distinguished, 319
probative value, 317–319
Res gestae, 277–278
Residual hearsay exception, 621–629
circumstantial guarantees of trustworthiness, 624–625
equivalency, 626
FRE 807, 622
independent corroboration, 625
limitations on use, 623
material fact, offered to prove, 626
more probative than other available evidence, 626–627
“near miss,” 626
notice, 627–628
preliminary fact-finding, 623–624
prevalence, 628–629
rationale, 622–623
serving general purposes of justice, 627
testimonial qualities, reliability, 624–625
Rights-based theories, attorney-client privilege, 945–949
Routine practice evidence. See Habit evidence
Rules of Evidence. See also specific topic concerned
rationale, 124–127
restyling, 86–87

Same-sex couples and marital privileges, 958

Scientific evidence and expert witnesses, 778–794
adversary model, 773
1066

behavioral sciences, 784–785

bullet lead analysis, 792–793
Daubert case, 714–722, 770–775
deference model, 773
DNA testing, 783–784
eyewitness identification, 793–794
fingerprint identification, 788–792
Frye case, 713–714
handwriting identification, 787–788
Joiner case, 722–725
Kumho Tire case, 725–731
law enforcement investigative tools, 787–794
bullet lead analysis, 792–793
eyewitness identification, 793–794
fingerprint identification, 788–792
handwriting identification, 787–788
normal educational approach, 772
psychological sciences, 784–785
toxic tort causation, 785–787
Self-authentication, 223–226
FRE 902, 223–224
explanation, 224–226
general rule, 223–224
Self-evaluative privilege, 1007–1009
Self-incrimination and party admissions, 506
Sensory incapacity, impeachment of witnesses by, 429–431
bar to testimony, 430
extrinsic evidence, 430
relevance, 429–430
Servants, hearsay exemption for. See Party admissions, hearsay
exemption
Settlements
negotiations, privilege for communications made in, 1001–1002
 offers of compromise admissibility. See Compromise, admissibility
of offers
Sex offenses
child molestation evidence. See Child abuse and molestation
evidence
past sexual behavior evidence. See Past sexual behavior evidence
sexual assault evidence. See Sexual assault evidence
Sexual assault evidence, 330–341
character evidence, 335–336
federal litigation, significance to, 339
FRE 403 balancing test, applicability, 332–333, 335–336
FRE 413 to 415, 331–332
rationale, 336–339
general rules, 331–333
“offense of sexual assault” construed, 334–335
other Federal Rules of Evidence, 333
preliminary fact-finding, 333–334
probative value, 337–339
rationale, 336–339
recidivism, 337–338
unfair prejudice, 337
“without consent” construed, 335
Signatures, 220
Similar happenings evidence, 302–308
admissibility of, 304–306
character distinguished, 303–304
characteristics of objects, 302–303
FRE 403 balancing test, applicability, 304–306
habit distinguished, 303–304
institutional policy or practice use of to prove, 306
lack of Federal Rules governing, 303
nonhappenings, evidence of, 306–307
organizational liability, 302
organizational propensity, 302
Simulations, authentication of exhibits by, 216
Slander actions
 best evidence rule, 245–246
character as essential element of claim or defense, 329
Specific acts evidence, 261–355. See also Character evidence
character, prohibition on use of to prove, 317
child molestation evidence. See Child abuse and molestation
evidence
cross-examination of character witnesses. See Cross-examination
defined, 262–263
FRE 404
relevant acts with no character inference, admissibility, 270–284
text, 271
habit evidence. See Habit evidence
motive, use to prove, 272
opportunity, use to prove, 272
past sexual behavior evidence. See Past sexual behavior evidence
plan, use to prove, 272
preparation, use to prove, 272
problems distinguishing from character evidence, 277–284
propensity and, 292
relevant acts with no character inference, admissibility, 270–284
anticoincidence theory, 281–283
exclusion, argument for, 279–280
general rule, 271
identity, evidence showing, 273
intent, problems in proving, 278–279
knowledge, problems in proving, 278–279
modus operandi and character inference, 283
narrative of proponent's case, evidence completing, 272
Old Chief case, 280–281
permissible uses, 272–273

1067

prejudice, 274–275
preliminary fact-finding, 273–274
probative value, 274–275
 relevant states of mind, evidence showing, 273
res gestae problem, 277–278
where intent not disputed, 279–281
sexual assault evidence. See Sexual assault evidence
similar happenings evidence. See Similar happenings evidence
Varoudakis case, 284–291
Spoliation of evidence, 164–165
Spousal privileges. See Marital privileges
Statements against interest, hearsay exception, 605–613
ascertaining declarant's knowledge, 607
corroboration requirement, 609–611
statements inculpating accomplices, 610–611
FRE 804, 605
mixed motive statements, 608
party admission distinguished, 607
preliminary fact-finding, 606–607
rationale, 607
doubts regarding, 608
statements inculpating accomplices, 610–611
corroboration requirement, 610–611
statements made with no motive to lie, 608
State-of-mind declarations, hearsay exception, 538–549
circumstantial statements, 541–542
declarant's will, statements about, 544
direct statements, 541–542
evidence used to prove facts, 543–544
facts remembered or believed exclusion, 539–540
FRE 803 (text), 538–539
future conduct, 542–543, 545–546
future state of mind, 542
Hillmon case, 544–547
past state of mind, 542
preliminary fact-finding, 539
rationale, 540–541
State secrets privilege, 1009–1011
Statistics, probative value, 182–184
Stereotypes, 140
Stipulations, 179–180
Subsequent remedial measures, admissibility, 358–366
activities deemed to be, 360
diagram, 359
discouraging desirable conduct, policy against, 364
effectiveness of, 361
exclusionary mandate, 358–361
FRE 403 balancing test, applicability, 363
FRE 407
interpretation and illustration, 358–365
text, 358
“if disputed” requirement, 362–363
inference of negligence or culpability, 358–360
intent to make conditions safer, 360–361
low probative value, 363
mandated by law, 361
motive for making change, 360–361
permissible uses of evidence, 362
prior to plaintiff's injury, 361
punishing desirable conduct, policy against, 364
rationale for general rule of exclusion, 363–364
reflections on, 376
third persons, by, 365
timing, 361
Substantive rules of law. See Presumptions
Sufficiency
authentication of exhibits, 197–198
relevancy distinguished, 141–142
Summaries, best evidence rule, 243, 249–250
voluminous documents underlying summaries, 249–250
Summary expert witnesses, 778
Summing up and comment by judge. See Judicial summary and
comment on evidence
Syndrome evidence, expert witnesses, 784–785
Testimonial privilege. See Marital privileges
Testimony. See specific topic concerned
Thayer, James Bradley, 133–134
Theory of case, 89–91
Toxic tort causation, expert witnesses, 785–787
Transcript of sample case, 2–83
Treatise or periodical, reliable authority requirement, 585–586
Treatises
expert witnesses, 741
impeachment or rehabilitation of witnesses by, 432–433
Trials, 85–132
bench trials, 89
bifurcated trials, 99
burden of persuasion, 98
burden of production, 95–96
closing arguments, 97–98
jury deliberations, 98–99
jury instructions, 98
jury selection, 92–93
natural reasoning, 127–131
new trials, 100–101
objections cheat sheet, 120–122
opening statements, 93–94
post-evidence matters, 97–98

1068

post-trial motions, 99–101

preliminary jury instructions, 93
presentation of evidence, 94–96
order of presentation, 94–95
pretrial motions, 91–92
roles of trial participants, 88–89
sample transcript, 2–83
structure, 85–132
theory of case, 89–91
 trifurcated trials, 99
verdicts, 98–99
Trifurcated trials, 99

Ultimate issue, expert opinion on, 749–754

FRE 704, 749
interpretation and illustration, 749–754
Unavailability of declarant. See Hearsay
Underlying propensity theory and past sexual behavior evidence,
343–344
Undue delay and probative value, 159–160
Unstated beliefs. See Hearsay
Untrustworthiness
business records, exclusion, 569–570
burden of persuasion, 570
circumstances indicating, 570
public records and reports, exclusion of, 579

Verdicts
directed verdicts, 96–97
judgments notwithstanding the verdict, 96–97, 100
judicial notice to preserve
civil cases, 872–873
criminal cases, 873
sample case, 83
Victims' statements, probative value, 164
Violent Crime Control and Enforcement Act of 1994, 330
Voice identification, 220
Voir dire, 92–93

Waiver
of attorney-client privilege, 905–919
of Fifth Amendment rights for impeachment of witnesses by
character evidence, 396
of privileges, 896–897
of psychotherapist-patient privilege, 986
 subject matter waiver, 907–908
of withdrawn pleas, admissibility under FRE 410, 380–381
of work product protection, 905–919
Waste of time, probative value, 159–160
“Weak” presumptions, 829–830
Website documents, and hearsay exception, 573–574
White House counsel privilege, 895–896
Wigmore, John Henry
attorney-client privilege, 947–948
impeachment of witnesses
bias, by, 425
contradiction, by, 431–432
relevancy, 147
Winship rule
burden of persuasion in criminal cases, 836–839
application in other contexts, 851–854
presumptions, 857–859
Withdrawn pleas, admissibility, 377–381
FRE 410
exceptions, 379–380
interpretation and illustration, 378–381
scope, 379
text, 377
waiver, 380–381
general rule, 377
guilty pleas, 377
no contest pleas, 378
nolo contendere pleas, 378
statements made in conjunction with pleas, 378–379
Witnesses
adverse witnesses, 107–108
character. See Character evidence
competency. See Competency of witnesses
confrontation of witnesses. See Confrontation Clause
cross-examination. See Cross-examination
examination. See Examination of witnesses
expert. See Expert witnesses
hearsay. See Hearsay
hostile witnesses, 107–108
impeachment. See Impeachment of witnesses
lay opinion. See Lay opinion
rehabilitation of. See Impeachment of witnesses
Work product doctrine, 949–953
corporate clients, 929
disclosure of information protected by, 905–919. See also FRE 502,
this heading
duty of confidentiality, 914–917
Easterbrook theory, 952–953
FRE 502, 905–906
concerns raised by, 910–919
confidentiality of attorney-client relationship, potential damage to,
911–912
confidentiality order governing disclosure, effect of, 909–910
constitutionality of application to state proceedings, 911
controlling effect of FRE 502, 910
cost of discovery and, 911
court order on disclosure, controlling effect of, 909–910

1069

“data dumps,” effect of, 911

document review still required, 910–911
inadvertent disclosure, 908–909
inconsistent state and federal laws, 909
judge-initiated unilateral order, 913
limitations of, 907–908, 910–911
misleading disclosure, unfair to adversary, 907–908
party agreement, controlling effect of, 910
precautions taken to rectify error, 908–909
purposes of, 906–907
reasonable steps to prevent disclosure, 908–909, 912–913
review of documents still required, 910–911
 scope of waiver, 907–908
selective disclosure, unfair to adversary, 907–908
state proceeding, disclosure made in, 909, 911
subject matter waiver, 907–908, 912–913
subsequent state and federal proceedings, 907–908, 909, 911,
913
inadvertent disclosure of protected work product. See FRE 502, this
heading
joint production theory, 950–952
waiver of protection, 905–919. See also FRE 502, this heading
Writings
authentication. See Authentication
best evidence rule. See Best evidence rule
inscriptions on objects as not writings, 248
signatures, 220