PREMIUM LEGAL RESOURCES
ASK A LAWYER
Contributed by Roger Martin, 2L Student by night at Univ. of San
Diego, Patent Agent by day at [email protected]
** State v. Chapple, (1983)
2. Facts: Victim was found in a trailer, dead of a gunshot to the head,
and body burned badly.
3. Procedural Posture: Dolan was charged with first degree murder.
Witnesses testified that someone named "Dee" confessed to the killing.
Dolan insists that he is not "Dee," but was willing to stipulate to the
method of the murder and the condition of the body. Photographs showing
the gruesome condition of the body were shown to the jury. Dolan was
convicted and appeals.
4. Issue: Whether gruesome photographs of a victim's body are admissible
when they have no probative value toward any of the issues in
controversy, and they may be inflammatory to the jury.
5. Holding: No.
6. Reasoning: Relevance is not the only question. Rule 403 states that
the judge may exclude the evidence if the danger of prejudice created by
admitting the evidence outweighs the probative value for any issue
actually in controversy in the action. Here, the only issue in
controversy was the identification of the defendant. The cause of death
and the condition of the body were stipulated by the defense. The
photographs were not probative on the issue of whether Dolan was "Dee."
7. Notes: 2. Photos may be relevant to show the cause of death, position
of the body, nature and relationship of the wounds, viciousness of the
Facts: Wife died of stab wounds inflicted by husband. Husband claims it
was an accident - wife fell on the knife during a fight where she had
baseball bat. Husband called police. Prosecution offers testimony
concerning wife's prior admission to shelter for abused women two years
Issue: Whether evidence of prior battery is 1) relevant and 2)
Answer: 1) The testimony is relevant because it tends to show that the
husband had a reason for killing his wife and was prone to violence. 2)
It is prejudicial because it makes the husband look like a bad person.
However, we already know that the husband and wife have fought violently
because that is how she died. It probably should be let in because its
probative value outweighs its danger of prejudice.
Facts: Plaintiff's deceased was a passenger in a car that was hit from
behind. The gas tank exploded, killing the deceased. brings a products
liability action against the manufacturer for negligence in design of
the car. The person who caused the accident has pleaded guilty to
involuntary manslaughter, and has admitted to going about 68 mph.
Issue: Whether evidence of the faulty driver's guilty plea should be
Answer: No. Although the speed of the vehicle is probative on whether
the gas tank was properly designed (i.e. manufacturer may or may not
have a duty to protect from rear collisions at 68 mph), statements by
the other driver concerning whether he felt that he was legally at fault
for the death have no probative value on the negligence of the
manufacturer. The jury may be confused and believe that the other driver
was the sole cause of all injuries since he pled guilty.
Facts: Two cars sideswipe each other. The drivers exchange information.
One driver says to the other that she is sure that her insurance will
pay for the damage to the other's car. Rule 411 states that evidence of
insurance can not be used to show negligence.
Issue: Whether the first driver's statement is admissible.
Answer: Her statement is not admissible for the purpose of showing that
existence of liability insurance proves negligence. However, Rule
801(d)(2)(A) states that admissions by a party opponent are admissible,
and are not hearsay. The judge should let in the testimony, let the jury
decide whether it is a true admission, and then give the jury a limiting
instruction that they may not use the presence of liability insurance
alone as proof of negligence.
Facts: Flight instructor and student were flying in a training aircraft,
when instructor seized the controls and performed an evasive maneuver to
avoid another aircraft. The training aircraft crashed, killing both. The
flight instructor's husband investigated the crash and generated a
report to the supervising officer making several statements apparently
detrimental to his case, but concluding that the crash was due to
manufacturer negligence. At the husband's trial against the manufacturer
for negligence, the manufacturer's attorney calls the husband to testify
to the adverse portions, and the court refuses to let the husband
testify to the findings.
Issue: Whether the husband's conclusions in the rest of the letter
should be admissible.
Answer: Yes. Under FRE 106, when on party introduces part of a writing
into evidence, the other party may introduce any other part which ought
to be introduced in fairness. Here, the statements that the husband made
in his letter are not hearsay because the husband is basing his letter
on his personal knowlege of the investigation, and is available for
cross-examination. They are not admissions because they were not made by
the deceased. Thus, in fairness, because the jury is likely to view them
as admissions, the plaintiff should be able to testify to the remainder
of the letter.
Facts: Daughter rides bicycle down a hill, and crashes into a tree,
fracturing her skull. Parents claim that the brakes failed due to poor
design. Expert witness testifies brakes did not work properly when he
tested them 2 years later. Defense objects claiming lack of foundation
that the bike was in the same physical condition at the time of the
accident. Parents then offer testimony by another expert witness
concerning tests done just weeks after the accident (which do not show
"total loss" of braking), and state that the bike was in storage since.
Defense claims that the first set of tests affected the brakes.
Issue: Whether the offered testimony is conditionally relevant.
Answer: The testimony would be relevant to showing negligence in
construction if the bicycle were in the same condition that it was when
the accident occured. However, there is evidence to show that it is not
in the same condition (time elapsed, intervening tests). The judge
should allow the evidence and instruct the jury that they must find that
the bicycle was in the same condition for the expert testimony to be
given any weight.
Facts: Three men rob a bank with .38 caliber handguns. One man confesses
and fingers the defendant. The government shows that the defendant has a
friend who owns a car matching the description of the one used in the
getaway, and that defendant's fingerprints were found in the car.
Surveillance films show a man resembling defendant holding a handgun
during the robbery.
Issue: Whether evidence that defendant was carrying a .38 caliber
handgun when arrested is admissible.
Answer: It is relevant to showing that defendant commited the crime if
it is the same gun that was used in the crime. It also tends to show
character (persons who carry guns are more likely to be bank robbers
than those who don't). However, if jury may confuse the issue and accept
the confession of the one robber as proof that this was the same gun
that was used because it was the same caliber. The judge should admit
the evidence, although circumstantial, because the jury is probably able
to apply the proper weight to it.
Facts: Victim is murdered by a person who entered through the garbage
compartment. A woman's stocking that had been ripped (like a burgalr's
mask) was found under her body. Defendant's fingerprints were found on
the garbage compartment door. The victim's rings were stolen and there
was evidence that defendant had offered to sell a ring to a witness a
few weeks after the burglary.
Issue: Whether evidence that three ripped stockings were found in the
defendant's room should be admissible.
Answer: The line of inferences must be that the ripped stockings found
in the apartment were made into masks, and that the ripped stocking
found at the scene was a mask, and that the one found at the scene
matched or belonged to the defendant. The jury might jump to the
conclusion that the one found at the scene matched one found at the
defendant's house. This evidence is only circumstantial. However, given
the fact that ripped stockings are not a common item, the evidence
should be let in because the jury is probably able to give proper weight
** People v. Collins, (1968)
2. Facts: An old woman was robbed in an alley. She describes her
assailant as a white female in dark clothes. A witness observes a white
female with a ponytail get into a yellow car with a black male driver
with a beard. The defendants loosely match the description of the people
observed leaving the alley.
3. Procedural Posture: The prosecutor introduced an expert witness
mathematician who testified concerning the product rule of mutually
independent characteristics in a population. The prosecutor selected the
categories, and assigned numbers to them, without any emperical basis.
The jury convicted and the defendant appeals.
4. Issue: Whether the product rule of probabilities was properly applied
in this case.
5. Holding: No.
6. Reasoning: The categories were not mutually exclusive. Also, the
probabilities given had no foundation. Furthermore, they appeared to be
beyond the defense attorney's and the jury's ability to understand.
Thus, it is likely that this improperly used technique was accepted by
the jurors, causing prejudicial error.
Facts: Defendant manufacturer makes 80% of the tires that an auto shop
uses. One tire explodes, injuring a worker. The technician who tested
the exploded tire determined that it was faulty. But no plaintiffs wrote
down the markings on the tire, so they can not say conclusively that it
was made by the defendant.
Issue: Whether the fact that defendant makes 80% of the tires used at
the shop is admissible.
Answer: It is relevant because it tends to establish that the particular
tire in question belonged to the manufacturer. However, there is another
issue besides who made the tire: whether the manufacturer was negligent
in making the tire (i.e whether it was actually defective). It is likely
that the jury would confuse the issue and gloss over the negligence
issue and latch onto the 80% number to assume that it was 80% likely
that the defendant was liable. In this case, the judge should give a
special verdict form to the jury that separates the two questions.
Facts: Maserati pulls up next to a Kenworth semi-truck at a stoplight.
Maserati can not see the light, or cross traffic because of the truck.
When the truck begins to pull forward, Maserati takes this as a sign
that the light is green and pulls into the intersection where he is hit.
Each driver asserts that the other ran a red light.
Issue: Whether evidence of the truck pulling forward at the intersection
is hearsay if it is offered to prove that the light turned green.
Answer: Yes. The truck driver is not present to offer testimony as to
whether he thought the light was green, and whether that is why he was
pulling forward. There is the risk that the truckdriver was mistaken, or
was anticipating the light, or moved forward for some unknown reason.
** Cain v. George, (1969)
2. Facts: Son dies in a hotel room from carbon monoxide poisoning. When
his body was discovered in the morning, there was a smoldering chair in
the room. There was also a gas heater in the room.
3. Procedural Posture: The parents brought a wrongful death action,
claiming that the heater was defective and unmaintained and that caused
the death. The defendant motel offered evidence of the number of people
who had stayed there previously without complaint. The plaintiff
objected that the silence was hearsay (made by persons not testifying).
4. Issue: Whether silence by someone who could reasonably be expected to
report a problem is hearsay if used to prove that there was no problem.
5. Holding: No.
6. Reasoning: As a practical matter, silence is not hearsay in this case
because it derived its value solely from the credit to be given the
actual witnesses themselves (i.e. they could be lying that there were no
** United States v. Check, 1978)
2. Facts: Defendant is a new york city cop suspected of selling cocaine
through an assistant, Cali. An undercover cop arranged to buy some
cocaine from the defendant, through Cali. The two met, and the cop was
3. Procedural Posture: The cop was charged with selling drugs. Cali
refused to testify. The prosecutor attempted to circumvent the hearsay
rules by instructing the undercover cop to testify as to only his half
of the conversation. However, the tetsimony clearly implicated
statements by Cali.
4. Issue: Whether a person can testify to one half of a conversation in
order to circumvent the hearsay rules when it is clear that the
testimony is paraphrasing the alleged statements of the out-of-court
witness, and the testimony is being offered to proof the contents of the
5. Holding: No.
6. Reasoning: This is a blatant and transparent example to circumvent
the hearsay rules which are in place to provide procedural safeguards.
If this were allowed there would be no practical use for the rules. So
much was paraphrased that it was unclear who said what. Thus, the entire
testimony should have been thrown out.
Facts: Witness testifies at trial "the blue car ran the red light."
However, the attorney (on cross) attempts to get the witness to testify
that in a previous statement made to an insurance adjuster, he said that
the blue car had a green light. The attorney states that he is offering
it to impeach the testimony of the witness and not to prove that the
blue car had a green light.
Issue: Whether the previous statement to the insurance adjuster is
admissible or is hearsay.
Answer: Admissible to impeach. Also, the policy behind the hearsay rule
does not seem to be at risk here because the very person who made the
out of court statement is available to testify (and be cross-examined)
Facts: While at a massage parlor, an undercover cop is propositioned by
a masseuse who is likely prosititute.
Issue: Whether the prostitute and the undercover cop's out of court
statements are admissible to show that an act of soliciting prostitution
Answer: Yes. The conversation itself is the issue. The act of stating
the words is the crime of solicitation, and is part of the requirement
of the substantive law. It is being offered to show that it was spoken.
Thus, it is admissible.
Facts: A landowner leases part of his land to a farmer in return for a
40% share of the crop. The farmer gets a bank loan using the remaining
60% of his future crop as collateral. After default, the bank collects a
portion of the crop that they claim was designated as theirs by the
farmer. The landowner claims that the statement by the farmer
designating the corn was hearsay. Likewise, the bank claims that the
statement by the farmer designating the corn to the landowner is
Issue: Whether the verbal act of designating an object as belonging to
another person to satisfy a debt is hearsay.
Answer: No. The verbal act is probative of the very issue of whether a
debt was discharged (contract law). The words are offered to give
evidence of their existence, because it is their existence that is at
Facts: Victim smells a gas leak. Agent appears and says that he is from
the gas company, and asks Victim to show him the leak. Victim takes
Agent around to the gas leak, and Agent lites a cigarrete which ignites
the gas and injures Vicitim. At trial, the gas company asserts that
Victim is contributorily negligent for going so close to a gas leak.
Issue: Whether Victim's testimony that Agent stated he was from the gas
company is admissible over the hearsay rule.
Answer: If offered to show the effect on Victim (that he was not
contributorily negligent because he believed that he was accompanied by
someone who knew what they were doing) then it is admissible. It is not
being offered to show that Agent was from the gas company, only that
Victim thought that Agent was from the gas company.
Facts: College student was arrested and charged with selling drugs at a
bar. The evidence was circumstantial and comprised: 1) a matchbook with
the name of the bar on it found in his possession, 2) a mug with his
name on it found at a drug house, and 3) testimony by a barmaid that she
saw another defendant at the bar with the college student, but was able
to point him out to an undercover officer, and 4) the undercover
officer's testimony that the person that the barmaid pointed out was the
Issue: Whether each of these is hearsay.
Answer: 1) Not hearsay because it is self-authenticating. 2) Also self-
authenticating. 3) Not hearsay because witnesses are present to testify
and be cross-examined. Identifying the object.
Facts: Husband tries to collect in a wrongful death suit for future
income of dead wife. Only a few weeks earlier, wife executed a will in
which she limited his inheritance to $1, and made several disparaging
comments about him.
Issue: Whether the will may be admissible to show that the future income
of the husband was not great.
Answer: Yes. It shows the state of mind of the wife. It is not being
offered as proof that the husband was bad, but only that the wife and
the husband were not getting along and so the husband was not likely to
get future income.
Facts: A child is molested by a man in a room. The room is described by
the child to a police officer who testifies to what the girl told her
about the appearance of the room.
Issue: Whether the description by the police officer of the girl's
description of the room is hearsay.
Answer: Yes. However, it may be let in as a then existing mental
impression of the room. Not used to prove that the room was as the girl
described it, but rather that the girl had a mental impression of being
in the room that could only have come from being in the room.
** United States v. Singer, (1983)
2. Facts: Sazenski and Izquierdo were suspected of smuggling marijuana
from Florida to Minnesota. Sazenski had a residence in Minnesota. A
letter was sent from Sazenski's landlord to Sazenski and "Almaden"
(Izquierdo's alias) notifying them of their eviction.
3. Procedural Posture: The prosecution sought to enter the letter into
evidence in order to show that Sazenski and Izquierdo lived together.
The defense objected on the grounds that the content of the letter was
hearsay ("writing" made out of court by other than the witness).
4. Issue: Whether the letter is admissible or not under the hearsay
5. Holding: Yes.
6. Reasoning: FRE 801(c) defines hearsay as a "statement," meaning that
non-assertive conduct, verbal or non-verbal, is not hearsay if not
intended by the declarant as an assertion. The purpose of the hearsay
rule is to exclude evidence whose veracity can not be tested under cross
examination. However, there is an inference of veracity of non-assertive
behavior because people base their actions on the assumption of the
correctness of their belief. Thus, the letter is admissible to prove
that the landlord believed that Saznski and "Almaden" lived together,
because it is non hearsay for that use. The letter is not being
submitted to assert that its contents are true, only that the landlord
believed them to be true.
Problem 3-K: Greg is suspected of robbing a bank. FBI agents question
his wife who lies about his whereabouts. FBI then question a friend, who
tips them off to Greg's alleged hiding place, where he is found. At
trial, the prosecution attempts to have the FBI testify as to what the
wife said. The defense objects, claiming that it is irrelevant and
Issue: Whether lies made by a declarant out of court are admissible as
non-hearsay if used to show the state of mind of the declarant.
Answer: Yes. Here, the out of court statements are not being offered to
prove their contents. In fact, just the opposite. They are being
introduced to show Greg's wife's state of mind. If she were trying to
lie to police, that would be evidence that she felt he was guilty, which
is probative on whether Greg was guilty. Her statement is also a
performative act because it is an attempt to interfere with the
investigation, which also goes to show Greg's guilt.
Problem 3-L: Bruno is charged with importation of drugs. A King-Air
plane was tracked as being stolen from Florida, landing on Bruno's
property, being flown to Acapulco to pick up drugs, and then back to
Mississippi to drop off the drugs. At trial, Bruno denies any
involvement with the smugglers, claiming that he let the plane land
because it was an emergency. He also offers witness testimony say that
she heard him in public say that he was storing a King Air aircraft on
his airstrip. The testimony is offered to show that he is innocent
because a guilty person would not advertise that a stolen plane was on
Issue: Whether a disclosure made out of court by a declarant which would
not ordinarily be made by a guilty person is hearsay.
Answer: No. It is not being asserted to prove that the King Air was on
the property. That matter is conceded. It is being offered as conduct by
Bruno that tends to prove that he wasn't knowingly involved in the theft
of the plane. It does rely on Bruno's truthfulness, because he could
have made the statement in order to make it appear that everything was
** United States v. Pacelli, (1974)
2. Facts: Pacelli was arrested and charged for the murder of a woman who
had been subpoenaed to testify against him in a drug dealing case. After
the murder, several of Pacelli's friends met at a friends apartment and
discussed the crime. The statements they made did not show surprise or
reprehension that Pacelli had been arrested. They only commented on the
fact that the murderer had botched the job by leaving the body where it
could be found.
3. Procedural Posture: The trial court admitted testimony by one of the
friends at the apartment as to what the other conversants said. The
defendant appealed, alleging error in allowing hearsay.
4. Issue: Whether testimony by a witness of the statements made by a
declarant out of court are hearsay (and inadmissible) if used to imply
that the defendant is guilty because the statements do not show surprise
at his being arrested (meaning that he told them he did it).
5. Holding: Yes.
6. Reasoning: The admission of the testimony here violated the policy
behind the hearsay rule of giving litigants the opportunity to cross-
examine the declarant. The statement made may not have been intended by
the declarants to assert that they believed that the defendant had
killed the victim, or that the defendant told them that he did. Cross-
examination would allow the meaning of their statements to be examined.
Although there is less danger of insincerity in implied assertions than
express assertions, there is the danger of misinterpretation. Thus, the
evidence should have been excluded.
7. Dissent: There was no statement here that the defendant confessed to
the declarants. Thus, there was no hearsay problem at all. The testimony
offers little to the actual eye-witness testimony of the state's witness
that they are not hearsay, because they are not being offered to prove
the ultimate issue, i.e. that defendant killed the victim. They are
being used to prove that the declarants assumed that the defendant
killed the victim.
Problem 3-M: Postal inspectors get a tip about 2 men falsifying ID cards
and follow suspect 1, Griggs, to a bank where he apparently
unsuccessfully tries to cash a check. As they are arresting him, suspect
2, Perry, appears and Griggs says to him "I didn't tell them anything
about you." At trial, the prosecution offers the statement made by
Griggs as evidence that Perry was guilty.
Issue: Whether the statement is hearsay (an assertion).
Answer: Yes. The statement is being used to show that Griggs was
asserting Perry's guilt. Although the statement is not a naked
assertion, it clearly implies that Perry is guilty, and is being used
with that meaning by the prosecution. The statement's probative value
(for the prosecution) depends on the truth of an assumed fact that it
** Betts v. Betts, (1970)
2. Facts: An ex-husband of a woman sued for custody their daughter.
Their son died as the result of a severe beating, but the woman's new
husband could not be convicted because of lack of evidence. The daughter
was put in a foster home.
3. Procedural Posture: At trial, the ex-husband offered testimony by the
foster mother that the daughter, then 5, had cried and made statements
to the effect that the woman's new husband had killed her brother. The
statements were let in over hearsay objections, and the woman appealed
4. Issue: Whether the statements by the daughter made to the foster
mother were hearsay.
5. Holding: No.
6. Reasoning: A judicial interpretive addition to the hearsay rule in
801 is that the out of court statement can be used to show the state of
mind of the declarant, if such a statement does not depend on the
credibility of the declarant herself. The statements here were not
being offered to prove that the man killed her brother, but rather that
the state of mind of the daughter was such that there would be unhealthy
tension between her and her mother and stepfather if they were awarded
custody of her. It does not matter if the stepfather actually killed her
brother or not, because these statments circumstantially show the state
of the child's mind.
** Bourjaily v. United States, (1987)
2. Facts: An undercover FBI agent arranged for an person to sell
cocaine. The person notified the FBI agent that he had found a buyer,
and set up a deal. When the person proceeded with the transaction,
putting the cocaine in Bourjaily's car, the FBI arrested the person and
Burjaily, and found $20,000 in Bourjaily's car.
3. Procedural Posture: At trial, the judge admitted statements made by
the person, as evidence that Bourjaily was the drug buyer. Bourjaily
objected that the statements were hearsay, but they were let in under
801(d)(2)(E) as being made in the course of and in furtherance of a
conspiracy. The court of appeals affirmed.
4. Issue: 1. What is the appropriate standard for allowing in statements
by an alleged co-conspirator, when they are being used to prove the very
existence of the conspiracy? 2. Whether the judge can consider the
content of the hearsay statement in weighing whether it was made in the
furtherance of the conspiracy.
5. Holding: 1. Preponderance of the evidence, as determined by
preliminary fact finding by the judge. 2. Yes.
6. Reasoning: The preponderance of the evidence standard ensures that
the court will have found it more likely than not that the techincal
issues and policy concerns addressed by the FRE 104 have been afforded
due consideration. Although prior to the enactment of the FRE, the court
had held that the hearsay statement by the alleged co-conspirator could
not "boostrap" itself into being competent evidence of proof of the
conspiracy, absent some independent proof, the FRE 104(a) contains no
limitations other than privilege. Since the existence of the statement,
although presumed unreliable, is probative on the existence of a
conspiracy, when it is taken together with surrounding circumstances, it
may be more probative.
7. Notes: A James hearing is often held in criminal cases, before trial,
for the prosecutor to show how he will "connect up" the hearsay
statements of the alleged co-conspirator with other evidence to
establish the existence of the conspiracy. If the hearing is successful,
the hearsay statement is admitted. However, if it is not practicable for
the prosecution to provide a showing before trial, the statement will
come in if the judge believes that there was more likely than not a
conspiracy, and the judge may have to give a limiting instruction if the
prosecution does not later "connect up" the statement with other
Prob. 4-H: Three people, Bud, Arlen, and Carol conspire to buy and sell
cocaine. At the airport before they leave, Bud says to a friend Connie
that 1. "Arlen fronted us the buy money." Arlen attempts to set up a
sale with an undercover DEA agent, and tells him 2. "Bud's gone down
south to make the buy." After she is arrested, Carol squeals and says
that 3. "Bud made the buy" and that she just carried it.
Issue: Whether the statements are admissible exceptions under
Answer: The statement must be made "during the course of and in
furtherance of the conspiracy." The first and second statement clearly
qualify. The third statement was not made during the course of or in the
furtherance of the conspiracy, but only after arrest.
** Nuttall v. Reading Co., (1956)
2. Facts: Nuttal died allegedly due to being forced to work while sick.
3. Procedural Posture: Nuttal's wife testified at trial as to what she
heard her husband say over the phone to his boss on the day that he was
allegedly forced to go to work. Also, she testified as to what he told
her after he got off the phone. The trial court excluded the testimony
as being hearsay.
4. Issue: Whether Nuttal's wife's testimony is admissible even though it
is technically hearsay.
5. Holding: Yes.
6. Reasoning: What the husband said was competent to prove that he was
being forced to go to work, because it showed his state of mind. The
husbands statements may be used as evidence of coercive statements by
the other person on the other end of the phone because the husband was
making them cotemporaneously. Although the wife has no personal
knowledge of the statements made on the phone, the testimony is
independently reliable because the statements were free from the
possibility of lapse of memory of the husband.
** United States v. Iron Shell, (1980)
2. Facts: Iron Shell got drunk and assaulted a nine-year old girl. There
were several witnesses who reported that they saw her pulling up her
pants. The girl made statements to the police about 1 hour after the
incident to the effect that "he tried to what you call it me."
3. Procedural Posture: The trial judge let the statement to the police
into evidence, and Iron Shell was convicted.
4. Issue: Whether the judge abused his discretion in letting the
statement in under the 803(2) excited utterance exception.
5. Holding: No. Although an hour had passed, the length of time is not
determinative. The court needs to consider the age, physical and mental
condition of the declarant, and other surrounding facts to determine
whether it was reasonable that the declarant was operating under the
stress of excitement when she made the statement. Here, the finding was
reasonable given the additional evidence, and the age of the child.
Prob 4-I: A person who lifts heavy objects for a liveing came home early
one day and said to his wife "I feld this suddne pain just a few minutes
ago" while lifting objects at work. After going to the doctor, he died
later that day from a heart attack. The wife sues for workmen's comp.
survivor benefits. At the trial, she wants to admit the statement that
the husband made.
Issue: Whether the statement qualifies as an excited utterance under
Answer: Yes. It is perfectly reasonable to say that the man was under
the stress of the pain when he made the statement that he had the pain.
The judge can (using rule 104(a)) admit the evidence to prove that there
was pain from the statement itself, given that there was other evidence
of pain (i.e. going to the doctor and requiring a sedative to rest).
Prob 4-J: Neff was a smalltime tough guy who was seeking protection
money from Quade. Quade was found stabbed in the park. Before he died,
he told a friend, "Neff is after me again. He'll kill me if I don't pay
Issue: Whether these statements are hearsay if offered at 1) and
extortion trial against Neff, or 2) a murder trial against Neff, or 3)
if Neff claims self-defense.
Answer: The statement tends to show that Quade feared Neff. Fear is a
then-existing mental state. At an extortion trial, fear is probative
because it is fear that motivates the person to pay. If it were a murder
trial, the fear may be probative, and may come in, especially as
evidence to show whether Neff was reasonable in fearing for his own
life. But it is less probative. Thus, it might be excluded under 403
even though it fits the 803(3) mental state exception.
** Mutual Life Insurance Co. v. Hillmon, (1892)
2. Facts: Hillmon was allegedly shot by accident by his partner at a
campfire. He had taken out several life insurance policies before his
death. There was evidence that the body that was found was not that of
Hillmon, but of another named Walters. Walters had written to his
fiancee before disappearing that "[he was] going with a man by the name
3. Procedural Posture: The wife brought an action to recover the
insurance money, and the insurance company sought to introduce the
letter as evidence that Walters went with Hillmon, and thus it was
Walters' body that was found, not Hillmon's. The trial court refused the
letter, stating that it was hearsay.
4. Issue: Whether the letter was nontheless admissible as an exception
to the hearsay doctrine as being independently reliable.
5. Holding: Yes.
6. Reasoning: A man's state of mind or intent can only be expressed by
gesture, sound or words. When the intent is expressed, it is typically
contemporaneous with the declaration of the party. Thus, it is not
subject to faulty memory and is independently reliable. The letter is
thus admissible to prove that Walters had the intent to go with Hillmon
somewhere. From this intent, the jury may logically infer that not only
did he go, but thta Hillmon went with him.
** United States v. Pheaster, (1979)
2. Facts: Larry was allegedly kidnapped by Angelo. Larry had made
statements to friends that he intended to go meet Angelo in the parking
lot of the Sambo's restaurant, and pick up a free pound of marijuana
3. Procedural Posture: The trial court admitted the testimony of the
friends as to Larry's statement of intention to meet Angelo. The defense
objected, asserting that although Larry's statement was competent to
prove Larry's intent and future conduct, it could not be used to prove
the conduct of Angelo himself.
4. Issue: Whether the statements of intent of one person that he is
going to go meet another person can be used to prove that the two did
actually meet. (Hillmon doctrine).
5. Holding: Yes.
6. Reasoning: The court reasoned that the Hillmon doctrine was still
intact after the promulgation of the FRE. The inference to be drawn from
a person's intent to perform an act is that he did that act. If the
statement implies that a second person would engage in some future
conduct with the declarant, that makes the likelihood smaller that the
conduct actually took place, but it does not make the actual statement
any less reliable (it is still free from memory lapse). Thus, it is a
question of degree of inference. Thus, Larry's statement still fits
under the state of mind exception of 803(3), even though it implies
conduct by another party as well.
7. Notes: Some other cases will allow this type of statement to prove
the other person's conduct only if there is additional evidence of such
conduct to corroborate.
Prob. 4-K: Husband is tried for murder of his wife. There is independent
circumstantial evidence of violence between the couple. The prosecutor
wants to offer three statements/conduct by the wife as evidence:
** Weeks before death, Wife told her neighbor "I am afraid my husband
is going to kill me."
2. Days before death, Wife to her neighbor "I am going to Denver to stay
3. Few months before death, Wife left home to spend time in a battered
Issue: Whether each of these statements is admissible under the state of
mind exception to the hearsay doctrine.
Answer: The issue is whether Husband killed wife. 1. Shows the wife's
state of mind clearly, but her state of mind is not an ultimate issue in
the case. However, her fear is probative on whether the Husband killed
her. Even more probative to show whether Husband was reasonable in
assertion of self-defense. 2. Shows present intention to leave home, so
it is admissible to show that she did go to Denver, which implies fear
of husband. 3. Also shows fear of husband.
Prob. 4-L: A father, Daniel, has a natural son, Frank, and an adopted
son, Ike. Frank and his father have a falling out. Daniel makes a will,
leaving half to his new wife (Ike's mother), and half to "his son."
There are several statements that Daniel makes to his friend concerning
the making of the will. After Daniel dies, there Frank claims that "my
son" meant him, and alternatively that the will was made under the undue
influence of Ike and his mother. The following statements were made:
** In October, Daniel said "Ike is my son now, and I want to take care
2. In November, Daniel said, "I'm going to do my will this weekend."
3. In January, Daniel said, "I'm taking care of my son Ike, Frank's
4. In February, Daniel said, "I just did my will, [after constant
nagging by new wife]. She won, she gets the house and the stock that she
Issue: Whether each of these statements is admissible under the state of
mind hearsay exception for declarant's will.
Answer: 1-3 appear to be clear statements of Daniel's state of mind,
i.e. that he intends to leave his money to "his son" Ike. 4 is being
used to show undue influence. The declarant's state of mind is relevant,
but here he is remembering past events. However, the state of mind
exception for wills applies to statements regarding the "execution,
revocation, identification, or terms of declarant's will." Here the
statement certainly refers to the terms of the will.
** United States v. Iron Shell Part II, (1980)
2. Facts: 9-year old alleged victim of sexual assault met with doctor
for examination 2 hours after incident. Doctor asked her several
questions to which she eventually responded by telling him what happened
3. Procedural Posture: The trial court let the statements in as an
exception to the hearsay rule under 803(4)'s exception for statements to
physicians. The defendant asserts that this was error because the
statements made were not "reasonably pertinent" to the diagnosis, as the
same diagnosis and treatment and examination would have occurred
regardless of the statement.
4. Issue: Whether the statements made by the girl to the doctor were
"reasonably pertinent" to the diagnosis or treatment, thus qualifying
for the hearsay exception of 803(4).
5. Holding: Yes.
6. Reasoning: The statements by the girl were "reasonably pertinent" to
diagnosis or treatment because they disclosed information that a doctor
would normally have sought in order to treat the patient. It may be true
that the doctor would have eventually found the problem without her
statements, however, given the child's age and condition, there is no
reason to believe that she was giving the information for any other
purpose than to truthfully provide information for her own treatment.
Thus, her answers fit the policy behind the exception. The answers also
served to narrow the examination.
** Ohio v. Scott, (1972)
2. Facts: Defendant was charged with shooting a man. He allegedly had a
conversation with his girlfriend at a movie house right after the
incident. The girlfriend wrote down a statement and gave it to police
the following day which described the conversation.
3. Procedural Posture: The trial court allowed the past statement to be
admitted into evidence after the girlfriend testified at trial that it
was an honest statement of the events at the time.
4. Issue: Whether the past written statement by the witness is
admissible under the Rule 803(5) exception to the hearsay rule for
5. Holding: Yes.
6. Reasoning: The statement was 1. recorded concerning a matter that the
witness had first hand knowledge about, 2. now the witness has
insufficient recollection, 3. the statement was made while the matter
was fresh in her mind, and 4. it reflected that knowledge correctly.
There is no danger of lack of cross-examination because the witness is
available to be cross-examined with regard to her perception and
honesty. Her present memory is not in dispute.
** Petrocelli v. Gallison, (1982)
2. Facts: A Dr. Gallison performed a hernia operation on Petrocelli,
during which he allegedly cut a nerve. During corrective procedure at
another hospital, the attending doctors wrote in the medical record that
there was pain due to a severed nerve, but there was no indication of
where this information came from.
3. Procedural Posture: The trial court refused to allow the entry of the
medical records as hearsay. The defendant won the verdict, and plaintiff
appeals charging that it was error not to admit the medical records
under the business record exception to the hearsay rule under FRE
4. Issue: Whether the medical records fell under the business record
exception of FRE 803(6).
5. Holding: No.
6. Reasoning: The business record exception applies only when persons
with knowledge make the entries contemporaneously as part of the
ordinary course of business. Here, it is unclear who had knowledge of
the alleged severed nerve. The plaintiff himself may have told the
doctor about the severed nerve, and he had no personal knowledge. The
patient is not part of the business.
** Lewis v. Baker, (1975)
2. Facts: Lewis was a brakeman who sued the railroad for personal
injuries, alleging that the brake he was using failed. The railroad had
a written accident report, prepared by the supervisor, alleging that the
brake had functioned properly both before and after the accident,
although he did not have personal knowledge of the accident.
3. Procedural Posture: The trial court admitted the written accident
report as a business record. The defendant won, and plaintiff appeals.
4. Issue: Whether the accident report qualifies as a business record
under the 803(6) exception.
5. Holding: Yes.
6. Reasoning: The record was made to satisfy the ICC requirement that
every accident be reported. There was no reason here to believe that the
persons making the record had any interest in avoiding blame during
litigation, so it is deemed to be independently trustworthy (as opposed
to Palmer, where the accident report was generated solely with an eye
toward litigation). Lack of personal knowledge by the recorder does not
affect the admissibility of the record, only its weight.
** Baker v. Elcona Homes Corp., (1978)
2. Facts: s were the victims in a car accident at an intersection of a
highway. The defendant's driver was in a semi, and the s were in a car.
The investigating police officer made a traffic accident report in which
he found that the car had ran the red light.
3. Procedural Posture: The trial court admitted the police officer's
report (under the recorded recollection rule), and the defendants won.
Plaintiffs appealed, claiming that it was error to allow the report as
4. Issue: Whether the police report was admissible under the public
records exception of 803(8).
5. Holding: Yes.
6. Reasoning: A police report is a public record because it was made
upon matters he had the duty to report. The police officer's written
statement that the car ran the red light was independently trustworthy
as a "factual finding" because it was timely made, the officer had
special qualifications and experience, and the officer was impartial.
The burden was on the plaintiffs to show that the report was
untrustworthy, and they made no effort to do so. Also, to the extent
that the report contained statements made by the opponent, they were
admissible under 801(d)(1)(B) (prior consistent statement) to
corroborate the driver's testimony because the cross-examination of the
driver implied that his testimony was inconsistent with prior
** United States v. Oates, (1977)
2. Facts: Oates was arrested for heroin possession, and at the time of
arrest, was carrying a "white powdery substance." The U.S. Customs
Service chemist prepared a lab report on the powder which indicated that
it was indeed heroin.
3. Procedural Posture: At trial, the chemist was suddenly sick on the
day he was to testify, and so another chemist testified in his place to
interpret the report. However, the trial court refused to allow the
actual report in since the preparer was not available, and rule
803(8)(B) excludes public records prepared by law enforcement personnel
from being used against criminal defendants.
4. Issue: Whether the report is properly admissible under the 803(8)
exception for public records, given that this is a criminal trial.
5. Holding: No.
6. Reasoning: The chemist is a law enforcement person under 803(8)(B)
because he is an integral part of the prosecution effort. The report was
a "factual finding" which was the product of an "investigation" under
803(8)(C). The legislative intent clearly and unequivocally indicates
that it was their intention to absolutely exclude all public records
made by law enforcement officials from use against the defendant in a
criminal trial. Otherwise, the defendant would lose the important right
of cross-examination and confrontation of the witnesses against him. It
does not matter that the witness was unavailable, or that the report
might technically qualify as a business record under 803(6) because the
legislative intent is so clear that they intended the exclusion to be
** United States v. Mann, (1978)
2. Facts: Defendant and a 17 year old Austrailian girl named Shine were
detained by Customs in Puerto Rico when Shine's name triggered a "hit"
in the custom's computer as being suspected of smuggling cocaine. Shine
had cocaine in her possession, but Mann did not. However, Mann was
arrested and charged since he was accompanying her. Shine was
accidentally held in adult prison, and so the government dropped charges
against her, successfully sought her deposition stating that Mann gave
her the cocaine, and returned her passport and baggage to her. Shine
returned to Australia.
3. Procedural Posture: The government, after asking the Australian
consul to verify her unavailability, offered her deposition as evidence
because they claimed that she was "unavailable." The trial court
accepted the diligence of the government's attempts to procure her, and
let the evidence in. Mann was convicted, and appeals claiming that it
was error to allow the deposition.
4. Issue: Whether the government met the standard of diligence required
for a finding that a witness is unavailable under FRE 804(a)(5).
5. Holding: No.
6. Reasoning: Rule 804(a) requires that the proponent be able to show
that he party was unable to procure the witness' attendance by process
"or other reasonable means." Furthermore, 804(a) provides that the
declarant is not unavailable if he absence was procured by the
proponent. Here, the government apparently felt that they wanted to get
the girl out of the country as soon as possible so that she did not take
action against them. The government probably felt that they could just
take her statement and send her home. Thus, they have apparently
procured her absence. Furthermore, they did not communicate to her that
they would pay for her trip back, nor did they make anything more than a
cursory attempt to bring her to the states. The government thus did not
meet the standard of Virgin Islands v. Aquino, that the effort must be
"genuine and bona fide," especially since this witness was the key
witness in the case.
** Barber v. Page, (1968)
2. Facts: Barber and Woods were arrested for a robbery. At a preliminary
hearing, Woods made incriminating statements against Barber. At the time
of trial, Woods was in a federal penitentiary in Texas. The trial was
held in Oklahoma.
3. Procedural Posture: The government stated that since they did not
have the power to compel Woods presence at the trial by service of
process, that he was therefore "unavailable." The trial court agreed and
allowed his testimony from the preliminary hearing to be read in lieu of
his presence. Barber was then convicted. Barber sought a habeus corpus
action claiming that allowing the recorded transcript was a violation of
his 6th amendment right to confront the witnesses against him. The
District Court rejected the claim, and the court of appeals affirmed.
4. Issue: Whether the government had taken reasonable steps to procure
the adverse witness' attendance at trial in order to declare him legally
5. Holding: No.
6. Reasoning: The state made absolutely no effort to acquire the
prisoner from out of state. They simply assumed that they had no duty to
do so because they could not serve him. However, there are agreements in
place between states to cooperate in this regard, in addition to a
federal policy of making witnesses available for testimony. The
possibility of refusal is not the same as an actual refusal. Even if the
defendant had waived his right to cross-examination at the preliminary
hearing, the 6th amendment right of confrontation is a trial right that
can not be so easily dispensed with.
** Lloyd v. American Export Lines, Inc., (1978)
2. Facts: Lloyd and Alvarez were both merchant sailors on a commercial
corgo vessel who got into a violent fight with each other. After the
fight, the Coast Guard held a hearing to determine whether Lloyd had
sufficient wrongdoing to revoke his merchant marine license. At that
hearing, Lloyd was sworn and cross-examined, and represented by counsel.
3. Procedural Posture: Both parties brought an action against the ship
owner for negligence. Lloyd was unavailable for trial because of his
work schedule. The ship owner sought to introduce Lloyd's previous
testimony from the hearing as evidence that Alvarez started the fight.
The lower court excluded it as not coming within the exception of
804(b)(1) for prior testimony. The jury returned a verdict for Alvarez,
and the ship owner appealed.
4. Issue: Whether the evidence should have been admitted under the
804(b)(1) exception to the hearsay rule for prior testimony given that
the declarant was sworn and cross-examined by the Coast Guard in the
5. Holding: Yes.
6. Majority Reasoning: The Coast Guard prosecutor and Alvarez shared a
"community of interest." 804(b)(1) requires that the prior cross-
examination have been conducted by a person with similar motive and who
is a "predecessor in interest." The legislative history shows that
"predecessor in interest" wording is not to be woodenly or mechanically
construed. Thus, the prior testimony should have been allowed.
7. Concurrence Reasoning: The testimony should have been allowed, but
under the catch-all exception of 804(5), not the prior testimony
exception of 804(b)(1). The term "predecessor in interest" is a term of
art and is to be construed narrowly as one who is in privity. It does
not matter that the Coast Guard had merely the same motive, he did not
have the duty to represent Alvarez. His search was for the truth, not to
win, and so he was not bound to explore all possible avenues. There was
overlap between their interests, but the Coast Guard was not a
"predecessor in interest." To hold Alvarez liable for the lack of zeal
of the Coast Guard is not fair.
** United States v. Barrett, (1976)
2. Facts: A collection of postage stamps was stolen. "Bucky" Barrett was
implicated by two witnesses as being involved. However, there was
evidence that one of the persons, now dead, who had been involved in the
crime said that "Buzzy", not "Bucky" was the person involved.
3. Procedural Posture: The trial court refused to allow a person to
testify as to the third person's statement, holding that although the
part that implicated the third person criminally as being involved was
against his own interest, the part that stated that "Buzzy" not "Bucky"
was involved was not sufficiently against his own interest to fit under
the hearsay exception of 804(b)(3).
4. Issue: Whether the part of the dead man's statement that stated that
"Buzzy" not "Bucky" was involved was not sufficiently against his own
interest to fit under the hearsay exception of 804(b)(3).
5. Holding: Yes.
6. Reasoning: The federal rules are a departure from the common law rule
that third party statements against penal interest could not be used to
exculpate the defendant. However, the last sentence of the rule provides
that these types of statements must also be independently corroborated
by circumstances clearly indicating trustworthiness. Here, the statement
that the third party was involved was clearly against his penal
interest. Also, the rest of the statement was naming who else was
involved, which gave context, and thus more weight to the first part of
the statement because only a person who was involved would know who else
was involved. Lastly, the whole statement should be viewed as one
integral statement since Congress apparently intended the rule to be
** United States v. Williamson, (1994)Supp.,
2. Facts: Harris was arrested carrying two suitcases of cocaine in the
trunk of his rental car. Upon being questioned, he first told
authorities that he was going to make a delivery to Williamson by trash
dumpster, and then changed his story to say that Williamson was
travelling with him in another car. Both stories implicated Williamson.
3. Procedural Posture: The trial court admitted the statements of Harris
against Williamson under the 804(b)(3) exception to the hearsay rule for
statements against interest. Williamson appealed claiming that the
statements implicating him were not against Harris' interest but were
collateral statements that were either neutral or self-serving. The
court of appeals affirmed, and the Supreme Court granted cert.
4. Issue: Whether collateral statements made along with a "statement"
against a declarant's penal interest are admissible.
5. Holding: No.
6. Majority Reasoning: The policy behind the rule is that statements
against a person's interest would not be made by a reasonable person
unless he believed them to be true. Collateral statements that are
either neutral or self-serving do not have the same guarantee of
trustworthiness. Thus, they should be excluded. The ACN notes
notwithstanding, all collateral statements are inadmissible because
Congress intended the rule to be narrowly applied consistently with the
underlying policy for excluding hearsay. "Statement" as used in the rule
does not encompass an entire narrative, but should be narrowly construed
to include only those portions that are themselves against interest.
Note that this could include statements that incuplate others or
exculpate others if they are used to show the existence of a conspiracy.
7. Dissent Reasoning: [Kennedy] Excluding collateral statements
altogether eviscerates the rule, because most statements against
interest are not directly against interest. The court should admit those
statements that are facially neutral, but tend to be against the
interest of the declarant when viewed as a whole.
** United States v. Dorian, (1986)
2. Facts: Dorian's wife took their daughter to the police station and
she was put in emergency foster care. While in foster care, the daughter
was examined and interviewed several times concerning alleged
molestation by her father. The daughter made several statements
implicating her father.
3. Procedural Posture: At trial, the daughter was deemed too young and
scared to testify, and thus unavailable. The prosecution successfully
sought to enter the examination statements under the 803(24) catchall
exception to the hearsay rule. The defendant appeals claiming that the
statements were not independently trustworthy because they were
4. Issue: Whether the statements should be admissible under the catchall
exception as having guarantees of trustworthiness.
5. Holding: Yes.
6. Majority Reasoning: The trial court's admission of evidence under
803(24) is a matter of discretion. To be admissible, it must satisfy 5
criteria: 1. it must have circumtantial guarantees of trustworthiness,
2. it must be offered to prove a material fact, 3. it must be the best
evidence available, 4. justice must be served by its admission, and 5.
the proponent must give notice to the adverse party. Here, the
statements met each of the requirements and the trial court therefore
did not abuse its discretion. Her description was complete enough that
it could only have been made by one who observed the events. It also was
in the interest of justice, and the best evidence, because she was not
able to testify. There was also corroborative evidence of her fear
around men, her fear of going home, and fear of examination.
7. Dissent Reasoning: The inconsistencies in the statements were too
great. The foster-mother who interviewed her was leading her, and was
also not impartial. The medical evidence does not corroborate the
testimony because it is inconclusive. Thus, the case should be retried
without the girl's exam testimony.
** Ohio v. Roberts, (1980)
2. Facts: Roberts was charged with stealing credit cards. At his
preliminary hearing, Anita testified that the knew Roberts, and that she
let him use her apartment while she was away. However, Anita denied that
she gave him permission to use her credit cards.
3. Procedural Posture: At the time of trial, Anita was unavailable. The
trial court allowed her prior testimony, and Roberts was convicted. The
court of appeals reversed, and the state supreme court affirmed,
reasoning that the preliminary hearing testimony was inadmissible
because "the mere opportunity to cross-examine" at the preliminary
hearing did not satisfy the Confrontation Clause.
4. Issue: Whether the admission of the preliminary hearing testimony was
a violation of the confrontation clause.
5. Holding: No.
6. Reasoning: The confrontation clause operates in two ways to restrict
the range of admissible hearsay. First, it establishes a rule of
necessity. This requires that the state produce or show the
unavailability of the witness. Second, it requires that the evidence
have sufficient "indicia of reliability" to be admissible. In this case,
the prior opportunity to cross-examine, and indeed the actual prior
cross-examination, show that the evidence has sufficient indicia of
reliability. Also, the state has shown a sufficient good faith effort to
locate the witness, but she is unavailable. Thus, there has been no
constitutional violation in allowing the testimony.
** Idaho v. Wright, (1990)
2. Facts: A 2 1/2 year-old girl and a 5 1/2 year old girl were allegedly
sexually molested by their parents. At a physical examination, the
younger daughter answered the question "Did daddy touch you with his
pee-pee" in the affirmative, and volunteered that the daddy did that
more to his older sister.
3. Procedural Posture: The trial court found that the 2 1/2 year old was
unable to testify, and allowed the examining physician to testify as to
the identification made by the 2 1/2 year old under the catchall
exception of 803(24). The defendant appealed claiming a violation of the
Confrontation Clause, and the state supreme court reversed.
4. Issue: What is the proper standard under which to admit hearsay
evidence which does not fall under an exception which is "firmly rooted"
for purposes of the Confrontation Clause.
5. Holding: "To be admissible under the Confrontation Clause, hearsay
evidence used to convict a defendant must possess indicia of reliability
by virtue of its inherent trustworthiness, not by reference to other
evidence at trial."
6. Majority Reasoning: Statements admitted under a firmly rooted hearsay
exception are so trustworthy that cross-examination would add little to
their reliability. To be admissible under any other exception, the
evidence must be at least as reliable as that admitted under the firmly
rooted exceptions. As such, it must have "particularized guarantees of
trustworthiness" of the same nature as those firmly rooted exceptions;
namely, that cross-examination would add little to its reliability
because it is inherently reliable. Thus, the state may not take into
account corroborating evidence in determining whether a hearsay
statement is admissible under a non-firmly rooted exception, because
corroborating evidence is irrelevant to the inherent trustworthiness of
the statement itself. Corroborating evidence only goes to whether the
error in admitting the hearsay statement was prejudicial.
7. Dissent Reasoning: To disregard corroborating evidence in determining
when a hearsay statement is sufficiently reliable to be admitted goes
against common sense.
** Chambers v. Mississippi, (1973)
2. Facts: Chambers was among a crowd of persons who were attempting to
free friend from imminent arrest. During the scuffle with police,
several shots were fired from a .22 handgun, 4 of which hit an officer
named Liberty. Before liberty died, he took aim and shot Chambers in the
back of the head and neck as he ran away. Another man, Mc Donald,
confessed to the crime in a written statement, and allegedly made other
oral confessions to friends shortly after the shooting.
3. Procedural Posture: The trial court, under Miss. law, refused to
allow Chambers to bring in the out-of-court oral confessions of Mc
Donald, because Miss. did not have a hearsay exception for declarations
against penal interest. Also, the trial court did not allow the
confessions in to impeach Mc Donald's retraction of the admission,
because of a state law forbidding impeachment of a non-"adverse"
witness, and Mc Donald did not "finger" Chambers, and so was not
4. Issue: Whether the refusal to admit the out of court admissions of Mc
Donald was an unconstitutional violation of 14th amendment procedural
5. Holding: Yes.
6. Reasoning: The 14th amendment guarantees fundamental fairness in the
conduct of a criminal trial. This includes the right to confront and
cross-examine witnesses. Since the oral confessions were made
spontaneously to close acquaintances shortly after the murder occured,
and since they were corroborated by independent evidence, they had
sufficient guarantees of trustworthiness to be admissible. Thus, the
exclusion of this evidence, coupled with the inability to cross-examine
Mc Donald, denied Chambers a fair trial.
Problem 5-A: Two men get in a fight. The issue is who started the fight.
The defense calls a witness who is offers to testify that the other
person was "a belligerent, fight-picking fellow with a short fuse."
Issue: Whether the statement is admissible under FRE 404 and/or 405.
Answer: Yes. Under 404(a)(2), the statement is admissible because it is
evidence "of a pertinent trait of character of the victim of the crime
offered by an accused." It is relevant because if the victim were
belligerent in general, it is more likely that the self-defense claim
Problem 5-B: Same fight as in 5-A, except the prosecution (first) offers
witness testimony that the defendant is "agressive...and prone to
violence," and the defense (second) offers witness testimony that the
defendant is "peaceable...and not likely to start a fight."
Issue: Whether the statement is admissible under FRE 404/405.
Answer: No to the prosecutor, yes to the defendant. 404(a)(1) only
allows the prosecutor to introduce evidence of the defendant's character
to rebut character evidence introduced by the defendant. However,
404(a)(1) allows the defendant to bring in evidence of his good
Problem 5-D: Same fight as above. At trial, after the Reverend testifies
that the defendant is peaceable, the prosecutor asks the following
question on cross-examination: "Did you know that the defendant beat his
Issue: Whether the question is proper cross-examination of character
evidence under FRE 405.
Answer: Yes. FRE 405 allows "inquiry...into relevant specific instances
of conduct." However, the judge might require a limiting instruction.
The justification is that once the defendant "puts his character into
issue," the prosecution is free to question with the latitude that the
rules give him. Also, if the witness hasn't heard of these other
offenses, his testimony is weakened.
Problem 5-E: Leslie claims to have been date raped by Fred after a
fraternity party. Fred claims consent, and offers testimony that he and
Leslie previously had sexual relations, testimony by a friend Greg that
"Leslie is very sexually active" and "known as an easy mark", and
another friend Thomas, that he had sex with Leslie earlier on the night
Issue: Whether the testimony of Fred, Greg and Thomas each are relevant
and admissible under FRE 412 (rape shield rule).
Answer: The testimony of Fred is admissible under 412(b)(1)(B) because
it is evidence of "specific instances of sexual behavior" with the
accused "offered to prove consent." However, Greg's testimony, although
reputational, is barred under 412(a)(1) as being offered to prove that
Leslie "engaged in other sexual behavior", and 412(a)(2) as being
offered to prove "sexual predisposition." Also, Thomas' remarks are
inadmissible under 412(a)(1) as being offered to prove "other sexual
behavior." However, Fred might argue that at least Thomas' remarks are
admissible under 412(b)(1)(A) to prove that Thomas was "the source of
semen, injury, or other physical evidence."
Problem 5-F: Same fight as above. At trial the defense offers testimony
that the other other person "started at least six other fights in the
last year or so, mostly in" the location of this place. The prosecutor
objects, on the ground that 1) the defense can't offer specific
instances, 2) character isn't in issue here, and 3) that the witness is
testifying on direct, not cross, and so rule 405 doesn't allow him to
testify that way.
Issue: Whether the testimony is admissible.
Answer: FRE 405 allows testimony of specific instances of conduct only
1) on cross-examination, or 2) when character is "an essential element
of a charge. claim, or defense." Here, the defendant's character is in
issue because of his claim of self-defense. Thus, the testimony of
specific instances should be allowed.
Problem 5-G: A former roomate of the defendant approaches police as a
volunteer informant, and sets up a deal with an undercover officer to
buy a large amount of cocaine from the defendant. At the proposed
exchange, the defendant does not sell cocaine to the undercover buyer,
but he is carrying a small vial of cocaine. At trial, the prosecution
offers testimony by the former roomate of numerous previous drug sales.
The defendant claims that the aborted sale was a scam between him and
his former roomate to take the buyer's cash without selling the cocaine.
Thus, the issue is whether he intended to sell drugs.
Issue: Whether the testimony concerning the defendant's prior drug sales
Answer: Yes. Prior acts are admissible under 404(b), not to show the
propensity of the defendant to sell drugs, but rather that he had the
intent to sell drugs. Furthermore, if the defendant claims entrapment
(to nullify intent), then he should not be heard to complain of a
searching inquiry into his own prior conduct bearing on intent).
However, it still may be excluded under 403 as being being more
prejudicial on the propensity to sell drugs than probative on the issue
Problem 5-H: Two men are accused of robbing a bank. Eyewitnesses testify
that one of the men ran in hunched over, that two men were seen arriving
in separate light and dark cars, in the morning. One of the men is
identified by an eyewitness, and the other confesses to eight other
similar robberies using the same "modus operandi."
Issue: Whether the confession of the other man is admissible.
Answer: Yes. It is evidence of prior crimes, but is nevertheless
admissible under 404(b) as evidence of "preparation", "plan", "motive",
or "identity" of the defendant.
Problem 5-I: An uncle is charged with life insurance fraud after
collecting over $1 million on the death of his niece, who had muscular
dystrophy. The prosecution sought to introduce evidence of the flagrant
manner in which he spent the money as evidence of his motive and intent
to commit the fraud.
Issue: Whether the evidence of other acts (i.e. big spending) is
admissible as relevant.
Answer: Yes. Although the probative value may be slight, big spending is
consistent with the reception of a "windfall", similar to gambling
winnings. To spend such a large amount of money so flagrantly is a sign
that it was easily won. As such, it is more likely that the uncle was
involved in the fraudulent concealment of the fact that the niece had a
disease. However, the judge may still believe that it is too prejudicial
and exclude it under 403.
Problem 5-J: One pro football player hits another from behind,
paralyzing him. At the civil case, the injured player seeks to introduce
evidence (in the form of testimony by other players) that the defendant
is "unusually and unjustifiably" violent on the playing field and that
he often throws cheap shots.
Issue: Whether the testimony is admissible in a civil trial.
Answer: General evidence of character is not admissible in a civil case,
under any of the 404(a) exceptions, because they only apply to criminal
cases. However, specific instances of acts are admissible to show
intent. Here, there are no specific acts referred to, just general
character evidence. Thus, it would not be admissible. However, if either
side were to offer specific acts such as how many times the defendant
had been ejected for violence, or penalized for illegal hits, it would
probably be admissible.
Problem 5-K: Two cars collide, killing all of the passengers with no
eyewitnesses. In the wrongful death trial, one of the parties seeks to
introduce testimony that one of the drivers was "a good careful driver"
as evidence that the other must have been at fault.
Issue: Whether this evidence is admissible under 406 as a habit.
Answer: No. "Good careful" driving is evidence of general character and
thus inadmissible under 404(a). There is no way to characterize being
careful as a habit, because habits involve mechanical, reflexive type
Problem 5-L: A mechanic is injured by an exploding can of freon after he
heated it in a coffee can of water in order to raise its pressure. The
defendant manufacturer seeks to offer testimony by a fellow worker that
he had often seen the mechanic use an immersion heater to heat the
Issue: Whether the evidence by the fellow worker is admissible as a
habit under FRE 406.
Answer: Yes. The repeated use of a certain tool for a certain purpose
can be properly characterized as a habit, rather than a character trait.
The evidence should be admissible as long as the witness had observed
enough occurreces that it was a habit.
Problem 5-M: An illegal immigrant was deported, and returned, subjecting
himself to higher penalties for re-entry. He claims that he was not
served with the papers telling him of the higher penalties. As proof
that he was served, the government seeks to introduce testimony by an
INS officer that it is the standard procedure of the agents to sign the
warrant, get a thumb print, and give the notice to the deported person.
Issue: Whether the evidence of the normal process of deportation is
allowable here to show that it was followed in a particular instance.
Answer: Yes. The evidence does not need to be corroborated under FRE
** Flaminio v. Honda Motor Co., (1984)
2. Facts: Flaminio was injured when the Gold Wing motorcycle he was
riding began to wobble, and he lost control.
3. Procedural Posture: The trial court denied Flaminio's offer of
evidence that Honda had thickened the front forks of the motorcycle
after his accident, under 407's exclusion of subsequent remedial
measures. Flaminio appeals, arguing that the evidence was admissible
because 1) it was offerred to impeach any testimony by Honda that they
would never have thickened the struts, and 2) that Rule 407 should not
apply in products liability cases, and 3) the federal court was bound to
follow state law interpretation of whether subsequent remedial measures
were admissible because it is a matter of substantive law (Erie
4. Issue: Whether FRE 407 applies in products liability cases.
5. Holding: Yes.
6. Majority Reasoning: There was no offer by Honda that they would not
have thickened the struts, so the evidence can not be used to impeach
them. Furthermore, such an exception would swallow up the rule. Also,
the policy behind the rule is to encourage people to make things safer.
Since a strict liability defendant still has a motivation to make things
safer, he would be discouraged from doing so if evidence of subsequent
remedial measures was used to show that the product was inherently
unsafe. Thus, the rule applies in products liability cases. Lastly, the
rule is more procedural than substantive, and thus within the power of
Congress under the necessary and proper clause, avoiding a conflict with
the Erie doctrine.
Problem 5-N: A seller of herbicides promises a farmer that he will take
care of any damages to the crop, by billing the manufacturer.
Issue: Whether this is an offer of settlement and thus excludable under
Answer: No. It is a straightforward admission by a party opponent that
they would pay for damages. There was not a negotiation of settlement of
** United States v. Fowler, (1982)
2. Facts: Lightly got a cut on his hand during a fight in a prison in
which one man was stabbed badly. Lightly claims that he was breaking up
the fight, and another inmate McDuffie, was the sole attacker. McDuffie
was prepared to corroborate that story. However, McDuffie was rule
incompetent to stand trial, and criminally insane.
3. Procedural Posture: At trial, the judge denied McDuffie's testimony,
finding him to be incompetent to testify.
4. Issue: Whether a person who understands the nature of the oath and
has personal knowledge of an event, and is able to communicate that in
testimony is nevertheless incompetent to testify if found to be
5. Holding: No.
6. Reasoning: Every witness is presumed to be competent to testify under
FRE 601 unless he can be shown not to have personal knowledge, the
capacity to recall, or the understanding of the duty to testify
truthfully. Here, the witness was not excluded by any of the exceptions.
The rule applies equally to insane persons.
** United States v. Fowler, (1979)
2. Facts: Fowler was charged with tax evasion.
3. Procedural Posture: At trial, Fowler represented himself. He refused
to either swear or affirm that he would tell the truth. However, he did
testify, and did claim to be a truthful man who would not lie to stay
out of jail.
4. Issue: Whether it was error to allow Fowler to testify on his own
behalf without swearing or affirming.
5. Holding: No.
6. Reasoning: FRE 603 is clear and simple. It requires that no witness
has the right to testify but on penalty of perjury and subject to cross-
examination. Thus, the court did not err in allowing him to testify
without saying the oath, because he was still subject to penalties for
not telling the truth.
** Ricketts v. Delaware, (1985)
2. Facts: The defendant was charged with raping a 6-year old girl.
3. Procedural Posture: The trial court conducted voir dire on the child
who stated that she knew what a lie was, that it was bad to tell a lie,
and that she promised to tell the truth during testimony. The defendant
appeals claiming that the girl was not competent to testify, without an
adequate foundation as to her competency as a witness.
4. Issue: Whether a child is a competent witness if she can understand
the difference between the truth and a lie, and promises to tell the
5. Holding: Yes.
6. Reasoning: The Delaware rules are identical to the federal rule 601.
As such, every person is presumed competent to be a witness. This is
true even for younger witnesses. The concerns of mental and moral
capacity go only to the weight of the evidence, and are the concerns of
the jury. Here, the child promised that she would testify truthfully,
and this was sufficient affirmation as required under the rules.
** Rock v. Arkansas, (1987)
2. Facts: The defendant's husband was shot while they were fighting. The
defendant could not remember much about the shooting until she was
hypnotized, and thereafter claimed that she did not have her finger on
3. Procedural Posture: The trial court refused the post-hypnotic
testimony to come in, applying the state's per se rule against post-
4. Issue: Whether excluding a defendant's post-hypnotic testimony in a
criminal case is a violation of the defendant's constitutional right to
testify on her own behalf.
5. Holding: Yes.
6. Reasoning: Hypnosis can lead to unpredictable results. However, the
per se rule against allowing it precludes its use even when there is
corroborating testimony to show its accuracy. As such, the per se rule
is unconstitutional because it excludes at least some reliable testimony
of the defendant.
Problem 6-A: A jury is instructed not to read newspaper accounts of the
trial, or to discuss the case with any person. The judge receives
information that one of the jurors has violated these rules, and outside
of the presence of the jury, questions the juror regarding these
Issue: Whether FRE 606(a) bars the judge's questioning of the juror.
Answer: No. The rule only bars the juror's testimony before the rest of
the jury, not before the judge.
** Tanner v. United States, (1987)
2. Facts: Tanner was convicted of a crime. After his trial, the defense
sought to introduce evidence that many members of the jury were drinking
and taking drugs during recesses, and so they were not competent to
return a verdict.
3. Procedural Posture: The trial judge denied the defendant's motion for
a new trial and for interviewing of the jurors. The defendant claims
that failure to allow evidence of jury misconduct violated his right to
a trial by a competent jury.
4. Issue: Whether the interviewing of the jurors to determine whether
they were under the influence of alcohol or drugs was a violation of
5. Holding: Yes.
6. Reasoning: Substance abuse does not fall into the category of
"outside influence" as recited in 606(b). As such, the jury is not
subject to examination, and the verdict is not subject to collateral
Problem 6-B: A juror sends a letter to the judge stating that they
disregarded his instruction, and considered the defendant's refusal to
take the stand as an admission of guilt.
Issue: Whether the juror who wrote the letter may be questioned
regarding its content.
Answer: No. FRE 606(b) precludes the testifying of the witness regarding
the mental processes he used in coming to the decision.
Problem 6-C: The jury misinterprets a formula for the calculation of
damages, and returns a verdict for an outrageous amount.
Issue: Whether the juror's affadavits in regards to the mistake are
Answer: No. However, the judge has the ability to grant a new trial from
the obvious error that the jury made.
Problem 6-D: Two jurors do an independent "fact finding" visit to the
Issue: Whether the defense attorney may make inquiry of the two jurors
regarding the truth of the report of their misconduct.
Answer: Yes. A visit to the accident site is an "outside influence" that
was "improperly brought to bear" upon the juror.
Problem 6-E: A juror has knows from his own experience about certain
facets of the case, and shares that information with the other jurors.
Issue: Whether the attorneys may question the jury with regard to
whether they were influenced by the one juror's personal knowledge.
Answer: No. Personal knowledge that causes a juror to have a particular
opinion is not an outside influence under 606(b).
Problem 6-F: An IRS agent is called to testify that she audited 160
returns made by a certina tax preparer and that 90 to 95 percent of them
had overstated itemized deductions. However, she got this information
for the individuals for whom the returns were prepared.
Issue: Whether the testimony can be received in light of FRE 602's
personal knowledge requirement.
Answer: Yes. Whether an itemized deduction was overstated is the
business of the agent to discover. If the individual can not support the
deduction, then it is overstated. The IRS agent, after conducting the
audit, has personal knowledge of whether the deduction was overstated.
** Baker v. State, (1977)
2. Facts: The defendant was arrested as a suspect in a beating. On the
way to the hospital, the police officer transporting the victim took the
victim to identify whether the defendant was involved. There was
evidence in a police report made out by another officer that the victim
stated that the defendant was not one of those who attacked him.
3. Procedural Posture: At trial, the defense, on cross-examination of
the officer who took the victim (now dead) to the hospital, attempted to
have the officer testify as to whether the victim had exculpated the
defendant. However, since the officer could not remember, the defense
gave him copies of the arresting officer's report to read in order to
refresh his memory. The trial judge prevented the officer from reading
the report, apparently applying the strict standard for the hearsay
exception of past recollection recorded (i.e. the testifying officer did
not have personal knowledge because he didn't write the report).
4. Issue: Whether a report written by another police officer may be used
by the testifying officer to refresh his memory, even though the
testifying officer may have no personal knowledge of the contents of the
5. Holding: Yes.
6. Reasoning: The trial judge confused the standard of past recollection
recorded (which requires that the writing be determined to be competent)
with the concept of present recollection revived. In past recollection
recorded, the writing itself is read into evidence. However, with
present recollection revived, it is only a means to jog the memory of
the witness, who is testifying thereafter under oath based on his own
personal memory, not on the contents of the writing. Anything may be
used to jog a memory (songs, smells, writings, etc), subject only to the
discretion of the judge in the interest of proper decorum and avoiding
wasting of time. In this case, the error was clearly prejudicial.
** James Julian, Inc. v. Raytheon Co., (1982)
2. Facts: Julian seeks injunctive relief and damages under the Sherman
act. In the course of preparing witnesses for depositions by Raytheon,
Julian assembled a binder of important documents, and used it to refresh
the memories of the witnesses before deposition.
3. Procedural Posture: Julian was ordered to turn over the file during
discovery as a writing used to refresh memory under FRE 612. Julian
claims that the binder contained only important documents, and was
therefore protected work product. As such, it should be immune from
disclosure under FRE 612.
4. Issue: Whether use of protected work product documents to refresh a
witness' memory before deposition is a waiver of that protection.
5. Holding: Yes.
6. Reasoning: The legislative history of FRE 612 indicates that Congress
intended to expand discovery of privileged documents used to refresh the
witness' memory to those used before testimony, subject to the
discretion of the judge on a case by case basis. Without the binder, the
defense can not know what material was used to "educate" the witness.
Thus, since the plaintiff made the decision to use the binders, he has
waived protection under FRE 612.
Problem 7-A: During trial, the plaintiff obtains an order from the court
excluding all witnesses. However, right before a certain witness is to
be called by the defense, the plaintiff learns that the defense has
(legally) bought trial transcripts. The plaintiff suspects that the
defense read important portions of prior witness' testimony to the key
witness about to be called.
Issue: Whether the court may bar the key witness from testifying on the
ground that sharing of the transcripts violates the court order of
Answer: The court should allow the witness to testify unless the
plaintiff can show by a preponderance that the transcripts were used to
coach the witness. However, an alternate approach would be for the court
to presume prejudice, and let the defense rebut. If the first path is
taken, the court should let the plaintiff ask the witness on cross-
examination whether he was shown the transcripts before he testified.
** United States v. Abel, (1984)
2. Facts: Abel and two others were arrested for bank robbery. One of his
alleged cohorts, Ehle, pled guilty and promised to testify against Abel
in return for a light sentence.
3. Procedural Posture: At trial, Abel produced a witness, Mills, that
testified that Ehle had told him that he was going to falsely accuse and
frame Abel. The trial court allowed the prosecution to put Ehle back on
the stand to testify that Mills, Ehle and Abel were all part of the same
secret prison gang whose purpose it was to lie for eachother. The court
of appeals reversed, holding that the testimony unduly prejudiced the
defendant because mere membership in an illegal organization does not
have any probative value with regard to veracity.
4. Issue: Whether the admission of evidence tending to show bias on the
part of a witness is inadmissible if it also tends to show that the
defendant was lying.
5. Holding: No.
6. Reasoning: The membership of Mills in the prison gang was
sufficiently probative of Mills' possible bias towards Abel to warrant
its admission, and was within the discretion of the trial court. Even
though the rules do not expressly refer to the admissibility of extrnsic
evidence to show bias, this evidence is otherwise covered by 402's
allowance of "relevant" evidence. Proof of bias is relevant, and thus
admissible. Even though the evidence also tended to show that the
defendant and his witness were part of an illegal organization, and thus
probably lying on the stand, it is still admissible for the purpose of
showing bias. Also, even though membership is not sufficient to convict,
it is sufficiently probative to be relevant. The trial court took
sufficient steps to limit its prejudicial value.
Problem 8-A: General Motors hires an expert witness to testify in a
product liability suit. On direct, the defense brings out the fact that
they are paying him $400 per day. On cross, the plaintiff wishes to go
into further detail about the total of payments, and how much the expert
witness relies on these payments for his living.
Issue: Whether the further inquiry into the total of payments is
Answer: Yes. It is probative on the issue of bias. It gives the jury an
idea of the significance of the payments.
** Simmons, Inc. v. Pinkerton, (1985)
2. Facts: Simmons hired a security guard through Pinkerton. A fire
started when the guard was on duty.
3. Procedural Posture: Simmons brought a negligence case. At trial,
Simmons asked the guard whether he had lied to his superiors about
taking and passing a lie detector test, and the guard admitted that he
4. Issue: Whether, given the ban on impeachment by contradiction as to
collateral matters, and the basic rule against admission of lie detector
test results, the trial judge should have allowed the testimony of the
guard admitting that he lied.
5. Holding: Yes.
6. Reasoning: The collateral evidence rule does not limit the scope of
all types of impeachment by cross-examination, it merely precludes
extrinsic evidence being admitted to impeach by contradiction. Because
the veracity of a witness is always an important consideration, the
witness may be cross-examined with respect to whether he has lied. Rule
608(b) allows cross examination of a witness about specific instances of
her past conduct, if probative on truthfulness, but prohibits proof by
extrinsic evidence. Here, the guard admitted lying. Had he not done so,
the plaintiff could not have brought in extrinsic evidence to prove that
** United States v. Lipscomb, (1983)
2. Facts: Lipscomb was charged with possession of heroine.
3. Procedural Posture: At his first trial, Lipscomb testified and had
been impeached by cross-examination concerning his conviction for
robbery eight years earlier. Lipscomb, in his second trial, sought to
have the judge prevent such cross-examination with respect to prior
convictions of himself, and his three defense witnesses.
4. Issue: Whether it was proper under FRE 609 to allow cross-examination
of the defendant and the witnesses with regard to their prior
5. Holding: Yes.
6. Reasoning: Rule 609(a)(1) requires a balancing of the probative value
against the prejudicial value of prior conviction evidence of the
defendant himself, but only requires that the witnesses prior crime be
punishable by > 1yr in prison. Any prior crime of untruthfulness may be
admitted. Also, in contrasting with 609(b), which requires specific
inquiry by the judge into the underlying facts, 609(a)(1) does not
require such and inquiry. Thus, the judge has the discretion to
determine how far to investigate a prior conviction in performing the
balancing of probativeness vs. prejudice. As such, the judge may allow
Problem 8-B: Dennet is arrested for a bank robbery. He has a prior
robbery conviction. The prime witness for the defense, and the prime
witness for the prosecution both have prior robbery convictions.
Issue: Whether evidence of the prior convictions should be allowed as to
each witness and the defendant.
Answer: Rule 609 provides that prior conviction for impeachment of a
witness is admissible subject to Rule 403, as long as it was punishable
by >1 yr imprisonment. So the prior conviction of each of the witnesses
should be allowed unless its probative value is "substantially
outweighed" by its prejudicial effect (Rule 403). Here, there appears to
be no great prejudicial effect, but the prior conviction of the defense
witness is probably subject to more careful balancing than that of the
prosecution. However, with regard to the defendant himself, Rule 609
states that the probative value must "outweigh" the prejudicial effect.
As such, the balancing standard is higher. Since the prior conviction
was so similar to the present charge, there is great danger of
prejudice. Thus, it should probably stay out.
Problem 8-C: Pratt sues Denko for personal injury damages from a car
accident. After Pratt testifies, Denko seeks to impeach him by bringing
out prior felony convictions for manslaughter and forgery.
Issue: Whether the evidence of the prior convictions is admissible in
Answer: Only for the forgery. Rule 609(a)(2) provides that crimes
involving dishonesty or false statement are admissible, regardless of
the punishment. However, since a prior manslaughter conviction is
probably excludable under Rule 403 as lacking sufficient probative value
with regard to truthfulness.
Problem 8-D: Durston is charged with assault, and testifies to an
uncorroborated alibi at trial.
Issue: Whether any of his 5 prior convictions should be admissible.
1. recent falsifying of motel register - Yes. 609(a)(2)
2. recent drug sale - No. 609(a)(1) not probative on
3. recent conviction for larceny - Depends on underlying
facts, but may be probative on veracity 609(a)(1).
4. first degree armed assault - No. 609(a)(1) great danger
of prejudice, very little probative value on veracity.
5. forging a bank application, released from prison >10
years ago - No. 609(b) time limit. But, depends on underlying facts, may
be admissible if, "in the interest of justice", probative value
"substantially" outweighs prejudice.
Problem 8-E: Allen is charged with a burglary, and testifies that he did
not do it. The prosecutor attempts to bring out specific instances of
lying on a tax return under 608(b). However, since these prior acts
resulted in a conviction, the defense wants to limit the inquiry on
cross-examination only to the fact that he had a prior conviction.
Issue: Whether the underlying acts which lead to a prior conviction may
be admissible in cross-examination of the defendant when the acts are
probative on truthfulness, and the prosecutor does not mention the
Answer: The underlying acts are probative on truthfulness, but only
minimally so because most people cheat on their taxes. If the prosecutor
is allowed to ask them on cross under 608(b), then he can not introduce
any extrinsic evidence of them, or of the subsequent conviction because
608(b) bars use of extrinsic evidence to impeach as to specific
instances. Thus, the defendant can merely deny the allegations, and that
would be the end of it.
** Luce v. United States, (1984)
2. Facts: Luce was charged with the federal crime of possession of drugs
with intent to sell. He had a prior state conviction of possession of a
3. Procedural Posture: Before trial, Luce made a motion in limine to
preclude the government from using the evidence of the prior conviction
to impeach him, should he take the stand. However, he made no
committment to take the stand, nor did he reveal what his testimony
might be should he take the stand. The motion was denied, and Luce did
not take the stand. Luce was then convicted, and he appeals citing error
in denying the motion in limine.
4. Issue: Whether a defendant who does not testify in a federal criminal
case is entitled to review of an adverse ruling on a motion in limine to
exclude evidence of prior convictions under FRE 609(a).
5. Holding: No.
6. Reasoning: If the defendant would have testified, he would be
entitled to review. However, since he did not testify, it is only
speculation whether he would have been prejudiced by the impeachment.
There is no way to tell whether he decided not to testify because of the
prior conviction, or for some other reason. Also, there is no way to
tell what his testimony would have been. Also, there is no way to tell
whether the government would have used the prior conviction to impeach
him. Lastly, there is no way to tell whether the judge would have
changed his ruling on the motion during the course of the trial. There
is simply not enough factual background in order to review such a case.
Thus, the criminal defendant must testify in order to let the trial
Problem 8-F: Welch testifies on direct that Plimpton's attack on Dirk
was unprovoked. During cross-examination, adverse counsel makes no
inquiry into any prior statements. Welch is then dismissed. Adverse
counsel then calls a police officer to testify that Welch told him that
the attack may have been provoked. [note, this is not hearsay because it
is not dependent on the truth of the matter asserted. It does not matter
whether the attacked was provoked. The evidence of the prior
inconsistent statement is being used to discredit the witness, and it is
only being offered to show that it is inconsistent, not that it is
Issue: Whether counsel may bring up a prior inconsistent statement of a
witness for the first time on direct examination of another witness.
Answer: Yes. 613(b) allows extrinsic evidence [here, the police
officer's testimony] of a prior inconsistent statement at any time, as
long as the witness is afforded an opportunity to explain or deny it, or
if the interests of justice otherwise require. Unless Welch is
permanently gone, the police officer's testimony should be allowed.
** United States v. Webster, (1984)
2. Facts: Webster was charged with robbing a bank. King pled guilty to
the crime, and made statements to an FBI agent that Webster was
3. Procedural Posture: At trial, the prosecution called King to testify,
and he denied that Webster was involved. The prosecution then put the
FBI agent on to impeach King with the prior statement [which also tended
to show that Webster was guilty - a hearsay prohibited purpose]. Webster
was convicted and appeals the ruling allowing the prosecution to call
King because the sole purpose appeared to be putting him on in order to
bring in the otherwise inadmissible hearsay statements as impeachment.
4. Issue: Whether a prosecutor may impeach a witness in good faith if
the witness' prior inconsistent statement would otherwise be prohibited
5. Holding: Yes.
6. Reasoning: It would be an abuse of FRE 607 for a prosecutor to call a
witness that it knew would not give it useful evidence, just so it could
introduce otherwise hearsay evidence for the non-hearsay purpose of
impeachment. However, here the prosecution offered in good faith to voir
dire King outside the presence of the jury, and the defense refused. The
defendant still has the opportunity to argue that the impeaching
statement be excluded under 403 because of the jury's inability to
ignore its substantive use, and use it only for impeachment purposes.
** Harris v. New York, (1971)
2. Facts: Harris was arrested for possession and sale of herion. An
undercover officer made the arrest when Harris bought for him. At the
police station, before they read Harris his Miranda warning, Harris made
incriminating statements that he had sold to the officer on 2 occasions.
3. Procedural Posture: At trial, the trial judge ruled the prior
inconsistent statements inadmissible for the prosecution's case in chief
as being clearly unconstitutional. However, on cross-examination, the
prosecutor asked the defendant about the prior statements in an effort
to impeach him.
4. Issue: Whether prior inconsistent statements made before the giving
of a Miranda warning are admissible for the purpose of impeaching the
5. Holding: Yes.
6. Majority Reasoning: The statements in Miranda implying a bar to use
of an uncounseled statement for any purpose are dicta. To prohibit the
prosecution from impeaching the defendant with otherwise inadmissible
statements is to take away a prime method of ensuring his truthfulness
on the stand. The defendant does not have the right to use the failure
of the Miranda warning to his advantage by perjuring himself. Had the
inconsistent statements been made to someone else, they would have
clearly been admissible.
7. Dissent Reasoning: The statements allowed in this case were too
prejudicial because they were directly implicating of guilt. It is
unfair for the prosecution to be able to use uncounseled statements
against the defendant in cross examination that they have illegally
obtained and therefore can not use in their case in chief. This
effectively denies the defendant the right to testify on his own behalf
because he can not be free from the prejudice of the uncounseled
statements. It also cuts away at the deterrence of police officers to
conduct legal interrogations.
** Jenkins v. Anderson, (1980)
2. Facts: Jenkins stabbed and killed a man. He claimed that it was in
self defense. However, he made no mention of the stabbing to anyone for
3. Procedural Posture: At trial, the defendant tetsified on his own
behalf, and the prosecution brought out his pre-arrest silence on cross-
examination to impeach his story that it was self-defense.
4. Issue: Whether use of pre-arrest silence to impeach a testifying
defendant violates the privilege against self-incrimination.
5. Holding: No.
6. Reasoning: The defendant voluntarily took the stand. As such, he is
obligated to tell the truth. He is also subject to cross-examination
with regards to any issue reasonably related to his direct examination.
The interests of justice to ascertain the truth become relevant and
prevail in the balance of considerations determining the scope and
limits of the privilege against self-incrimination. However, prior
silence may not be used for impeachment purposes unless it is probative
of credibility and the prejudicial value is outweighed by the probative
value. Also, on these facts, it is clear that no coercion or
governmental action caused the defendant to remain silent.
Problem 8-G: Oswald is charged with a robbery. Ardiss, the owner of a
local restaurant, testifies that Oswald was at the restaurant on the
night in question. On cross, the prosecutor gets Ardiss to testify that
Oswald was in the restaurant every day for a period prior to the
robbery. He then offers testimony by a Police Officer that he saw Oswald
elsewhere prior to the robbery, and by a waiter in the restaurant that
he never saw Oswald in the restaurant.
Issue: Whether either witness' testimony may come in for the purpose of
Answer: Counsel may not contradict as to a collateral matter. The police
officer's testimony is collateral because there is no substantive issue
of where Oswald was before the robbery. The waiter's testimony is
substantive (and not collateral) if he worked on the night in question.
** United States v. Havens, (1980)
2. Facts: Havens and McLeroth were stopped when McLeroth was searched in
customs and found to be carrying cocaine in pockets that were sewn into
a tee-shirt he was wearing. That prompted a warrantless illegal search
of Havens' luggage, where a cut-up tee-shirt was found which matched the
pockets in McLeroth's smuggling shirt.
3. Procedural Posture: At trial, the direct examination of Havens did
not mention tee-shirts specifically, but Havens denied that he taped or
bandaged or draped any drugs to McLeroth. On cross-examination, the
prosecutor elicited testimony from Havens that he "had nothing to do
with the sewing of cotton swatches to make pockets" on Mcleroth's tee-
shirt. To impeach, the prosecutor brought in the illegally seized
4. Issue: Whether evidence suppressed as the fruit of an unlawful search
may be used to impeach a defendant's testimony on cross-examination
where the evidence does not squarely contradict the defendant's direct
5. Holding: Yes.
6. Majority Reasoning: The cross examination about the tee-shirt and the
luggage was closely connected with, and reasonably suggested by, the
direct examination. The defendant has the obligation to tell the truth
in response to proper questions, and may not ues illegally seized
evidence as a shield to lie. Impeachment is a device which serves to
divine truth. Thus, the balance between the constitutional rights of the
defendant and the interests of justice must be struck in favor of
impeachment by illegally obtained evidence when the cross-examination is
properly related to the direct examination [but not if the evidence is
"smuggled in" by eliciting false statements on cross-examination that
were not sufficiently related to the direct testimony.]
7. Dissent Reasoning: The defendant must be free to deny all the
elements of the case against him without thereby giving leave to the
Government to introduce by way of rebuttal evidence illegally secured.
As such, some portion of the direct testimony of the defendant must rely
on the government's inability to challenge his credibility before the
evidence can come in. The majority reads the allowable cross-examination
broadly enough that any prosecutor would be able to get in otherwise
Problem 8-H: Young is charged with selling narcotics. On direct he
testifies that he did not commit the offense, and was elsewhere. On
cross-examination, the prosecutor asks "Have you ever sold narcotics
Issue: Whether the cross-examination question was proper.
Answer: No. It goes beyond the scope of the direct examination (611(b))
and appears to be an effort to elicit a statement solely for the
purposes of impeachment, because extrinsic evidence of prior bad acts is
otherwise excluded under Rule 608. If Young denied selling any narcotics
on direct examination, the prosecutor would be able to prove prior
convictions by extrinsic evidence under 609.
** United States v. Medical Therapy Sciences, (1978)
2. Facts: Berman was charged with fraud.
3. Procedural Posture: Russell testified against Berman, and testified
on direct concerning her past convictions and allegations of
embezzlement in an effort to diffuse an anticipated attack by the
defense. On cross-examination, the defense put on other witnesses in
order to go into more detail about her past conduct. Then the
prosecution rehabilitated Russell by bringing on witnesses to her
veracity and truthfulness. Berman was convicted, and appeals claiming
that the prosecution was forbidden to bolster their witness since it was
they who brought out the impeaching evidence on direct.
4. Issue: Whether Rule 608(a) permits the use of bolstering a witness'
veracity when it has been impeached on direct in an effort to diffuse an
anticipated, and actual, defense attack on veracity.
5. Holding: Yes.
6. Reasoning: Rule 608 itself contains no limitation that precludes the
party from offering character evidence under circumstances where it
anticpates impeachment. Although a party may not bring out impeaching
facts on direct solely for the purpose of getting in character
witnesses, it may bring in character witnesses to bolster the
credibility of its impeached witness if the defense attacks the witness'
credibility. Here, the impeachment on direct was brief, and the defense
attack was severe. Thus, the judge was within his discretion to find
that the defense attack was an attack on character for veracity.
Problem 8-I: FBI undercover agent Turner arranges a heroin sale with two
women, Clair and Arla. At trial, the FBI agent testifies that it was
Arla who handed him the heroin. However, on cross-examination the
defense implies that the FBI agent forgot, or had a bias against Arla
which led him to fabricate the story. The prosecution offers a tape of
the FBI agent speaking directly after the arrest which is consistent
with his in-court testimony.
Issue: Whether a prior consistent statement may be admissible to
rehabilitate a witness who is charged with recent fabrication.
Answer: Yes. A prior consistent statement is not hearsay under 801 when
used to rebut an attack of recent fabrication. As such, it can come in
substantively for the truth of its contents. Furthermore, it is being
offered here for the non-hearsay use of rehabilitation. It is proper
rehabilitation because the charge of forgetfulness may be rebutted by
showing that his story was the same then as now.
Problem 9-A: Cox showed his girlfriend a newspaper account of a car
bombing as proof that he "had a friend" who could blow up cars for $50.
At trial, she testified that it was her impression that he was involved
based on his showing her the article, even though he said it was a
"friend" who blew up the car.
Issue: Whether her opinion on Cox's involvement based on his conduct is
admissible in this case.
Answer: Rule 701 requires that the lay witness' testimony be rationally
based on her perception, and helpful to a clear understanding of the
witness' testimony or the determination of a fact in issue. Here, the
witness has already stated the facts that her opinion is based on, and
it is not helpful for the jury to know that she drew the conclusion that
he was involved. They can decide that for themselves without her help.
Problem 9-C: was injured due to complications arising after an open
heart surgery. The brings on an expert witness doctor to testify that,
on the basis of reading what a resident (not present) wrote on the chart
about the tube falling out during surgery, that the tube falling out
caused air to enter the 's bloodstream, injuring him.
Issue: Whether the expert witness may testify as to what was written on
the chart in explaining the basis for her opinion, even though it is
Answer: Yes. Under Rule 703, an expert witness may rely on information
reasonably relied upon by her profession, and resident's notes on a
medical chart fall into that category. The fact that it is hearsay does
not prevent an expert from relying on it. However, since the brought
out the basis for the opinion on direct, and the jury may be prejudiced
by the expert testimony in taking the contents of the medical record as
substantively true, the judge may exclude it under 403. However, this is
not likely since the chart may be admissible under the business records
exception of 803, and therefore admissible substantively anyway.
Problem 9-D: At a criminal trial for DUI, the D. successfully has blood
test evidence suppressed since it was taken in violation of the informed
consent law. However, the prosecution calls the doctor who performed the
blood test to testify that in his opinion, she was drunk, based on the
blood test, which measured .24 BAC.
Issue: Whether the doctor's testimony may be admitted under Rule 703,
notwithstanding the inadmissible blood tests.
Answer: No. Although the expert is able to rest his opinion on
inadmissible evidence under Rule 703, a criminal case also requires that
the D.'s constitutional rights be preserved. Here, the opinion that she
was drunk is probably admissible, but he may not base it on the excluded
evidence, because that is tantamount to introducing the evidence itself.
** Daubert v. Merrell Dow Pharmaceuticals, (1993)
2. Facts: Mother used bendictin when she was pregnant. Child has birth
3. Procedural Posture: Action for strict liability. At trial, D.
successfully moved for dismissal on the basis that the could not
produce evidence "generally accepted" by the scientific community that
there was a correlation between the use of Bendictin and birth defects.
The court of appeals affirmed, applying the Frye standard.
4. Issue: Whether evidence that is not "generally accepted" by the
scientific community is nonetheless admissible if it has other indicia
5. Holding: Yes.
6. Reasoning: The "general acceptance" standard of Frye is too rigid,
and results in the exclusion of valid scientific evidence that is
cutting edge. Furthermore, Frye has been superseded by FRE 702, which is
more liberal. However, there are several guidelines that the judge can
use at the outset in making a preliminary determination of admissibility
under FRE 104. "Scientific knowlege" in FRE 702 requires a grounding in
the scientific method, and more than unsupported speculation. Also, the
helpfulness requirement implies that the evidence must be a good "fit",
i.e. that it must be scientifically valid [and therefore reliable] for
the purpose that it is introduced. General guidelines to be considered
are whether 1) the theory has been tested, 2) the theory has been
subjected to peer review and publication, 3) the potential rate of
error, and 4) the theory is "generally accepted." In any event, Rule 403
is still available to exclude confusing or misleading evidence. Vigorous
cross-examination is another safeguard against bogus science in the
Problem 9-E: Father is accused of sexually molesting 14 year-old
daughter. At trial, she admits on cross that she had previously recanted
the accusation. The prosecution responds by putting on an expert witness
to testify to the observed behavior of molested children in general, and
that the daughter fits the profile.
Issue: Whether the expert's testimony as to the abused child syndrome
and the victim's consistent behavior is admissible.
Answer: Yes. FRE 702 allows such testimony. This testimony is
scientifically valid, reliable and helpful to the jury in understanding
whether the previous recantation was genuine.
Problem 10-A: testifies that harpsichord was undamaged when he gave it
to D. moving company. D. does not dispute that it was damaged when
returned, but brings on a witness to testify that it was damaged before
they picked it up.
Issue: Whether the judge should instruct the jury that if they find that
it was undamaged before the moving company picked it up, then they must
find the moving company liable for its damage.
Answer: Yes. A presumption arises in a bailor/bailee liablity action if
the bailor proves that the goods were undamaged when turned over to the
bailee. The only question here is whether that basic fact has been
established, because the moving company has not provided evidence that
the damage was caused by an act of God or that there was no damage.
Problem 10-B: Wife sues insurance company on life insurance contract for
her deceased husband, who was found in the basement, clutching the 30.06
rifle that shot him in the head. The wife produces evidence that the
husband did not commit suicide, the insurance company presents evidence
that the husband did commit suicide. The wife asks for a presumption of
Issue: Whether, under FRE 301, the wife is entitled to an instruction on
the presumption of death by accident if the jury finds her facts to be
Answer: No. The burden of persuasion still lies with the wife. The
presumption did not shift the burden of persuasion to the insurance
company, only the burden of production of evidence to counter it. The
insurance company has defeated the presumption by introducing counter-
** Patterson v. New York, (1977)
2. Facts: Patterson was convicted of murder for the killing of his
estranged wife's boyfriend.
3. Procedural Posture: The trial court instructed the jury that under
New York statute, the prosecution was required to prove intent to kill
beyond a reasonable doubt, but that the defendant was required to prove
any affirmative defense, such as provocation or heat of passion, by a
preponderance of the evidence.
4. Issue: Whether the New York statute is constitutional given that it
requires the D. to bear the burden of persuasion with respect to the
affirmative defense of provocation to mitigate murder to manslaughter.
5. Holding: Yes.
6. Majority Reasoning: At common law, the burden of proving affirmative
defenses such as provocation or heat of passion rested on the defendant.
This was true at the time of the adoption of the 5th and 14th
amendments. Requiring the D. to prove provocation or heat of passion
does not negate the proof of intent to kill. A person merely has murder
reduced to manslaughter if he can prove heat of passion once the
prosecutor has proven intent to kill. The state does not need to
disprove beyond a reasonable doubt, every fact constituting all
affirmative defenses related to the culpability of the accused.
Problem 10-C: Wife shoots husband after a fight over money. The
definition of murder in her jurisdiction is purposefully killing with
"prior calculation and design." She claims self-defense, which she is
required to prove by a preponderance of the evidence.
Issue: Whether this is unconstitutional shifting of burden.
Answer: No. A person may still premeditate a murder, but then be placed
in a position of imminent danger of death when she carries out the
premeditated murder. Most murder victims can be expected to defend
themselves, and thus place their attacker in imminent danger.
** Sandstrom v. Montana, (1979)
2. Facts: Sandstrom killed a friend while drunk or on drugs.
3. Procedural Posture: The trial judge instructed the jury that the "law
presumes that a person intends the ordinary consequences of his
voluntary acts." The jury convicted.
4. Issue: Whether the instruction given was constitutional.
5. Holding: No.
6. Reasoning: The wording of the instruction could be interpreted by a
reasonable juror to mean that they were compelled to find intent unless
the defendant produced contrary evidence. This would be an impermissible
shift of the burden of the prosecution.
** County of Ulster v. Allen, (1979)
2. Facts: Several defendants and a 16 year old girl were stopped and
searched by police, who found weapons and heroin in the car and its
3. Procedural Posture: The trial court instructed the jury that the New
York statute permits them to infer from the presence of an illegal
weapon inside a car that each of the occupants possessed the weapon,
unless some evidence is produced to rebut that presumption. The
defendants were convicted. The Court of Appeals reversed, holding the
statute to be unconstitutional on its face.
4. Issue: Whether the statute, as applied by the instructions given in
this case, is constitutional.
5. Holding: Yes.
6. Majority Reasoning: The instruction merely allowed a permissive
inference to be made. It was not a mandatory presumption. As such, it is
constitutional as long as there is a rational connection between the
basic facts that the prosecution actually proved, and the ultimate fact
presumed, and that the presumed fact is more likely than not to flow
from the basic facts proved. Here, it is the jury's province to decide
whether the gun was actually possessed by each passenger.
7. Dissent Reasoning: The presumption here is unconstitutional because
it does not fairly reflect what common sense and experience tell us
about passengers in automobiles and the possession of handguns.
Problem 10-D: Sam is a guest in Burnell's car. The car is stopped by
police and searched, and several guns are found in the trunk. The trial
judge instructs the jury that the presence of the guns may permit an
inference, in the absence of any substantial evidence to the contrary,
that each defendant in the car possessed the guns.
Issue: Whether the instruction is valid under Allen.
Problem 11-A: Auto accident. asks judge to take judicial notice of the
fact that it did not rain at the location on the day of the accident,
and that the intersection was dry, and provides the judge with weather
report as support.
Issue: Whether the judge can take judicial notice of these facts given
the supporting weather report.
Answer: Yes as to the fact that it did not rain. That is a point that
really indisputable. Even though the weather report is hearsay, it is
probably reliable. However, since there are other reasons that the
intersection may have been wet (broken water main, etc.), the judge
should not take judicial notice of the fact that the intersection was
dry, only that it was not covered with rain.
Problem 11-B: Westling was judged in default for failure to appear.
There is a properly executed return of service filed by the Sheriff. The
prosecution asks the judge to take judicial notice of the return of
service, and of the fact that Westling has failed to appear twice
before, once resulting in a citing for contempt.
Issue: Whether the judge may properly take judicial notice of the return
of service and previous failures to appear.
Answer: Only the return of service. It is a legal document that is
sufficient proof of service and is indisputable. The previous failures
to appear are not judicially noticable, except for the fact that he was
cited for contempt. That proceeding is beyond dispute as well.
Problem 11-C: Prosecutor asks the court to take judicial notice of the
driving time between New Haven CT, and Rhode Island, and therefore that
a person must have known that a call placed by a person travelling
between these points was placed from CT because the party called was
told earlier that the person calling was on his way and would be calling
soon, and that not enough time had elapsed between the two calls.
Issue: Whether judicial notice is proper as to these two issues.
Answer: Only the driving time is the proper subject of judicial notice.
The inference to be drawn from the call being placed after the father
told him of that the caller was on his way is not proper because it
could be that the father was mistaken.
Problem 11-D: Court is asked to take judicial notice that there was no
football game playing at any time on any station during the time accused
says he was watching football with friends.
Issue: Whether the contents of the TV guide are a proper subject of
Holding: Yes. Note that this does not prove that he was not watching
football on TV at a friends house, merely that he was not watching a
football game being broadcast by the stations in the TV guide.
Problem 11-E: Court is asked to take judicial notice of the Arab oil
embargo of 1973 by the defendant in a breach of contract case who
Issue: Whether the existence of an embargo is proper for judicial
Problem 11-F: s ask judge to take judicial notice that asbestos causes
cancer. If the request is granted, may the D. put on proof that it does
not cause cancer?
Answer: No. However, the D. may put on proof that it did not cause
cancer in this case.
** Government of the Virgin Islands v. Gereau, (1975)
2. Facts: During the deliberations of a trial, one juror spoke with a
jury attendant, who indicated that she wished to go home soon.
3. Procedural Posture: The defense brought a motion for a new trial
based on evidence of jury misconduct, where the juror testified of the
conversation, but the jury attendant denied it. The judge found that the
conversation did not take place, and gave one of his reasons as the fact
from his personal knowlege that the jury attendant was grateful for the
extra money from the work.
4. Issue: Whether the judge abused his discretion in taking his
personal, extra-judicial knowledge into account in judging the
credibility of the witnesses.
5. Holding: Yes.
6. Reasoning: The judge may only take judicial notice of the facts that
are 1. beyond reasonable dispute, and 2. either common knowledge or
capable of immediate and accurate determination by resort to easily
accessible sources of indisputable accuracy. The judge here went outside
of common knowledge or verifiable facts in basing his determination on
the fact that the jury attendant was happy for the extra work.
** United States v. Jones, (1978)
2. Facts: D. was convicted of illegally intercepting phone
3. Procedural Posture: D. appealed on the ground that the prosecution
had failed to establish that the telephone company was a common carrier
(as required by the criminal statute). The government did not ask for
judicial notice of the fact until appeal.
4. Issue: Whether, in a criminal case, the prosecution may ask the judge
to take judicial notice of the existence of a fact necessary to prove an
element of the crime after the case has already gone to the jury.
5. Holding: No.
6. Reasoning: Although the Rule 201 allows the judge to take notice at
any time, even on appeal, in a civil case, the legislative history
indicates that Congress intended this not to apply to a criminal case
because it violated the spirit, if not the letter of the 6th amendment
bar against partially directed verdicts. Thus, if the notice is taken
only on appeal, then the jury is not able to pass upon that fact, even
though they would have had the power to do so.
Problem 11-G: In an assault trial, the judge takes judicial notice, and
instructs the jury, that the hands of a karate expert qualify as a
Issue: Whether the defense may then put a witness on to testify that the
hands of a karate expert are not a deadly weapon.
Answer: No. The defense should present the evidence to the judge to
convince him that he should not take judicial notice of such. However,
the defense should not present such evidence to the jury during its case
in chief. Rule 201(e) provides this opportunity to be heard.
Problem 11-H: The court is asked to take judicial notice that in certain
illegal underworld activities, a death threat may be made by saying
"this is it, get it and get it straight because you only have once
Issue: Whether this is a proper subject for judicial notice.
Answer: No. The prosecutor should bring in an expert to testify to this
because it may not be a matter not subject to reasonable dispute. These
words may mean something entirely different, a fact that the jury should
** Houser v. State, (1975)
2. Facts: An action challenging a 21 year old age limit for alcohol
consumption under equal protection.
3. Procedural Posture: At trial, the court took judicial notice of the
findings of the legislature in determining that the age limit was
rationally related to a permissible state objective.
4. Issue: Whether the findings of the legislature are proper subjects
for judicial notice.
5. Holding: Yes.
6. Reasoning: A court may ascertain any facts it sees fit if it is
merely the ground for laying down a rule of law. Here, the court is not
taking notice of an adjudicative fact, it is merely determining the
basis for the application of a rule of law. It is taking judicial notice
of legislative facts.
** United States v. Gould, (1976)
2. Facts: Gould was arrested for smuggling cocaine.
3. Procedural Posture: At trial, the court took judicial notice of the
fact that the substance found in Gould's shoe (cocaine hydrochloride)
was a derivative of the coca plant, and further that derivatives of the
coca plant are specifically listed as Cat. II controlled substances. As
such, he instructed the jury that if it found that the substance was
cocaine hydrochloride, that they were directed that it was a Cat. II
controlled substance. D. appealed, citing error that the judge did not
instruct the jury that they could disregard the judicial finding that
cocaine hydrochloride is a cat II controlled substance.
4. Issue: Whether the judge erred in failing to instruct the jury that
they could disregard the judicial finding that cocaine hydrochloride is
a cat II controlled substance.
5. Holding: No.
6. Reasoning: The limitation in FRE 201, requiring a judge to instruct a
jury that it may disregard judicial findings of adjudicative facts, is
not applicable to judicial notice of legislative facts. Whether a
substance is on the controlled substance list is a legislative fact, and
not subject to negation by the jury.
Problem 11-I: The court is asked to take judicial notice that certain
books are obscene as a matter of law within the meaning of the statute,
thus leaving the only issue in the criminal trial as whether the
defendant possessed the books.
Issue: Whether the obscenity character of a book is properly the subject
of judicial notice of a legislative fact.
Answer: Probably not. Whether a book is obscene may be a question of
adjudicative fact. However, if there is sufficient legislative comment
on what constitutes an obscene book, then it may be proper.
Problem 11-J: The court is asked to take judicial notice of the fact
that the state supreme court has taken judicial notice of the fact that
many bar patrons drive to and from the bar. The judicial notice is asked
for in order to take the issue of foreseeability away from the jury.
Issue: Whether the foreseeability of a patron leaving a bar in a motor
vehicle is a proper subject for judicial notice.
Answer: No. Foreseeability is an adjudicative fact that is subject to
reasonable dispute. Some patrons take taxis.
Problem 11-K: The court is asked to take judicial notice that once a
charcoal is lit and smoldering the addition of lighter fluid is certain
to result in instantaneous flare up of the lighter fluid.
Issue: Whether this is the proper subject for judicial notice, and what
type it is.
Answer: It is probably not necessary to take judicial notice because
common knowledge of the jurors will take it into account anyway.
However, it is probably not subject to reasonable dispute that lighter
fluid poured on hot coals may ignite violently. This is an adjudicative
Problem 11-L: The court is asked to take judicial notice of the fact
that radar has achieved general scientific acceptance as a reliable
Issue: Whether the court should take judicial notice.
Answer: Yes. It is easily verifiable that radar is generally accepted as
reliable. However, there is still the issue of whether it has been used
Problem 12-A: A Dr. Mc Nary is convicted of killing his family. Shortly
after sentencing, his attorney gets a call from another criminal defense
attorney stating that his client has confessed the killing to him. At
Dr. McNary's new trial hearing, both the confessor and his attorney
refuse to testify, the first on the 5th amendment, and the second on the
basis of attorney-client privilege.
Issue: What are the constitutional arguments for denying, or
alternativley upholding, the privilege.
Answer: Con: If the confessor's attorney testifies, it will be a
violation of the confessor's 5th amendment right, because he would not
have made the statements if he thought they would be used against him.
Pro: If the confessor's attorney does not testify, Dr. McNary will be
punished despite his innocence. Solution: let Dr. McNary testify as to
what he was told by the other attorney, and conduct an investigation,
stay the execution pending discovery of other evidence supporting a new
Problem 12-B: Client hires attorney to oversee the consignment sale of a
printing press, which has been connected with the printing of
counterfeit money by a secret service agent. The attorney claims that he
has only communicated with the client by correspondence, and refuses to
produce that correspondence when subpoenaed, citing attorney-client
privilege on behalf of the client.
Issue: Whether the attorney may invoke the privilege.
Answer: No. The attorney here has not been hired in his capacity as an
attorney per se, but rather as a selling agent. These are professional
services he is rendering, rather than attorney services.
Problem 12-C: Woodburn is out on bail and fails to appear for the trial.
The gov't seeks to add a charge of bail jumping. His attorney is called
to testify whether or not he told his client of the date of the trial.
The attorney invokes the privilege.
Issue: Whether the attorney may invoke the privilege with respect to
whether he informed his client of the date and place of the trial.
Answer: No. The privilege should only cover implied statements made by
the defendant, not information supplied to him if it is otherwise
neutral. There is no reason to believe that the defendant would behave
differently if he knew that this information was being used against him.
Anyone could have told him of the time and place of trial.
Problem 12-D: One attorney meets with a drunk man he is representing in
a probate matter. After the man leaves his office, he gets into an auto
accident. At his trial for drunk driving, the man is being represented
by other counsel, and the probate attorney is called to testify against
Issue: What may the attorney testify to without the shield of privilege.
Answer: The attorney may testify as to any matter which did not concern
his relationship with the defendant, such as his drunken appearance when
they met. These matters are observable by anyone, and not the kind of
behavior that the client intended to be confidential as evidenced by his
driving drunk in public.
Problem 12-E: Defendant in tax evasion case transfers all records to her
Issue: Whether the court may compel the attorney to disclose the
Answer: Not if they contain matter that would have been privileged under
the 5th amendment right against self-incrimination had they been kept in
** People v. Meredith, (1981)
2. Facts: Scott was involved in a murder/robbery. While he was in prison
awaiting trial, he disclosed to his first defense attorney that he had
taken the wallet belonging to the victim, and placed it in the trash
behind his house. The first defense attorney then hired an investigator
to retrieve the wallet, and subsequently turned it over to the
3. Procedural Posture: At trial, the first defense attorney was called
to the stand and compelled, over an assertion of privilege, to testify
that he only learned of the location of the wallet through the
statements of the defendant. The defendant was convicted.
4. Issue: Whether, if a defense counsel learns of the location of
evidence solely through privileged confidential communications from his
client, and subsequently removes that evidence from where it was found,
the defense counsel may be compelled to testify as to his observations
concerning the original location and condition of the evidence.
5. Holding: Yes.
6. Reasoning: There is a balance to be struck. The observations of
counsel should be privileged if they are based solely on confidential
communications from the defendant. However, if the privilege were to
extend to the location and condition of evidence which the counsel has
taken possession of, or altered, that would give the attorney license to
tamper with evidence. It would be a race to discover evidence because
the counsel could effectively sever any ties that the defendant had with
it simply by taking it from its original location, and turning it over
to the prosecutor. The compromise position of protecting the information
unless the police would have found it anyway requires too much
speculation as to future conduct of the police.
** United States v. Kovel, (1961)
2. Facts: Kovel was an accountant at a law firm.
3. Procedural Posture: Kovel was subpoenaed to testify as to the work
that he had done for one of the law firm's clients, who was now under
indictment for tax evasion. Kovel's supervising attorneys asserted the
attorney-client privilege, even though he was an accountant.
4. Issue: Whether the attorney client privilege extends to
communications made to persons who are acting as agents of the attorney
for the purpose of assisting with technical or menial tasks.
5. Holding: Yes.
6. Reasoning: The presence and work of various specialized assistants is
necessary for a lawyer to give the best legal advice possible. Without
these assistants acting as his agents, the client would be poorly
served. However, the privilege would not cover communications made if
the advice sought were really the professional services of the
specialized assistant, rather than the legal advice of the attorney.
Problem 12-F: A failed disk-importing business. 1. At deposition by a
dissatisfied customer, the customer asks the partnership lawyer what the
partners told him about the quality of foreign disks. 2. One of the
partners sues the other for an accounting, and proposes to testify as to
what the other partner said at the meeting where the partnership was
originally discussed. 3. At the criminal trial of both defendants, one
partner proposes to testify as to what the other partner said at a legal
defense strategy meeting.
Issue: Whether the privilege may be invoked in situations 1, 2 and 3.
Answer: 1. Yes. The partners were seeking legal advice concerning their
joint partnership, and those communications should be privileged from
outsiders. 2. No. The partners' legal interests are now conficting. It
is as if the partnership as an entity is willing to waive its privilege,
and so the lawyer can not invoke one's privilege to prevent the other
from testifying. 3. Yes. The communications were made in a meeting
where, again, their interests were sufficiently overlapping. Also, since
his own lawyer was present, the one partner may be said to expect some
confidentiality in his statements.
** Suburban Sew N Sweep v. Swiss-Bernina, (1981)
2. Facts: Suburban is a retailer of sewing machines distributed by
Swiss. Suburban suspected violation of price discrimination laws by
Swiss, and so began to search their trash dumpster for evidence. They
found several handwritten drafts of letters that were intended to be
confidential communications, and on the basis of these brought suit.
3. Procedural Posture: Swiss asserted attorney-client privilege with
respect to certain ones of the papers found in the trash. The lower
court refused the recovered drafts from being admissible, and further
disallowed all evidence gained from the trash.
4. Issue: Whether the deliberate placement of the original drafts of
these letters in the trash constituted a loss of the attorney-client
5. Holding: Yes.
6. Reasoning: The materials not subject to privilege could have been
obtained by discovery anyway. The intent of the defendants to maintain
the confidentiality of the documents was outweighed by the state
interest in strictly construing privilege. Here, the defendants could
easily take steps to protect their confidentiality. Thus, the rule does
not inhibit legal consultation. For example, the defendants now use a
** Upjohn v. United States, (1981)
2. Facts: It came to the attention of Upjohn's corporate counsel that
some illegal payments to foreign governments had been made in order to
secure foreign business. In response, and in preparation for litigation,
the corporate counsel sent out a questionaire to the employees involved,
and also interviewed them.
3. Procedural Posture: At trial, the court demanded that the
questionaire responses, and the notes from the interview, be disclosed.
Upjohn claimed corporate attorney-client privilege. However, the court
denied the privilege, claiming that the employees who responded were not
entitled to a privilege because they were not part of the magical
"control group" of persons who "controlled" the corporation.
4. Issue: Whether the responses to the questionaires and the notes from
the interviews are privileged.
5. Holding: Yes.
6. Reasoning: The corporate counsel was acting in a legal capacity to
advise the corporation. As such, employees that discussed the subject
for the purpose of securing legal advice were entitled to the privilege.
The "control group" approach is too vague and chills communication.
However, only communications are privileged, it does not protect
disclosure of the underlying facts by the employees themselves. The
work-product created during the interviews is protected by Hickman.
These privileges are required to encourage corporate clients to seek
legal advice as to how to conform to the law.
** In Re Durant, (1983)
2. Facts: Durant is the attorney of someone whom the FBI traced as
having stolen checks payable to IBM. Durante refused to tell the FBI the
name of the client who paid him with money traced from an account which
held the stolen checks, asserting attorney-client privilege.
3. Procedural Posture: Durante was held in contempt.
4. Issue: Whether the identity of the client here falls within one of
the exceptions to the general rule that client identity is not
5. Holding: No.
6. Reasoning: There are several recognized exceptions that make the
identity of a client privileged: 1. the name of the client is only
material for the purpose of showing an acknowlegment of guilt, 2. the
identity would implicate the client in the very matter for which he
sought legal advice in the first place [the "legal advice" exception],
3. disclosure of the identity would amount to disclosure of the
confidential information. However, these exceptions focus on the
connection between the client and the communication, rather than the
client and the possibility of criminal liability. Here, the facts do not
fit any of the exceptions.
** State v. Phelps, (1976)
2. Facts: Phelps' first attorney withdrew from his DUI case after
learning that Phelps lied to him about the facts. He then hired another
attorney, and perjured himself to win the case.
3. Procedural Posture: Phelps is tried for perjury. The first attorney
is called to testify that Phelps intended to commit perjury. Phelps
moves to disallow the testimony based on the attorney-client privilege.
4. Issue: Whether the intent to commit a crime in the future is
privileged information under the attorney-client privilege.
5. Holding: No.
6. Reasoning: Although communications concerning a prior wrongdoing are
privileged, future wrongdoing is not. The rationale is that only
communications made in professional confidence and professional
employment are privileged. If the client lies to the attorney about his
intent to commit a future crime, then there was no confidence in the
attorney. If the client reveals his future plans, then there is no
professional employment because the lawyer may not further the
conspiracy. As such, the client either conspires with or deceives the
attorney as to future crimes.
** State v. Miller, (1985)
2. Facts: Miller called a hospital and told the receptionist on duty
that he had just murdered someone. The receptionist called the
authorities, and then gave the call to the on-duty psychotherapist. The
doctor assured Miller that his information would be confidential.
However, this was just a ruse to keep him on the line to trace the call.
Miller was found and arrested.
3. Procedural Posture: At trial, the prosecution sought to have both the
psychotherapist and receptionist testify as to what Miller said to them.
4. Issue: Whether a criminal defendant may invoke the doctor-patient
privilege if the statements were made under circumstances that
reasonably led him to believe that they were confidential and necessary
5. Holding: Yes.
6. Reasoning: It does not matter that the psychotherapist did not
actually intend to develop a doctor patient relationship with Miller. It
is sufficient that she led him to reasonably believe that she was going
to treat him. The receptionist falls under the necessary agent umbrella
of the privilege because a reasonable person would have believed that
they needed to disclose the crime to her before being able to talk to
** Trammel v. United States, (1980)
2. Facts: Trammel and his wife were jointly involved in smuggling
heroin. The wife was caught red-handed, and she agreed to testify
against her husband in return for leniency.
3. Procedural Posture: Trammel moved to sever the case, asserting that
he held a spousal privilege with respect to his wife's testimony.
4. Issue: Whether the testimonial privilege against adverse testimony by
a spouse may be invoked by the defendant spouse.
5. Holding: No.
6. Reasoning: There are no modern reasons to keep this archaic law.
Women are no longer property. Furthermore, when one spouse is willing to
testify against another, then the marriage is in danger already. Thus,
the witness-spouse alone has the privilege to refuse to testify
adversely. The defendant-spouse is not the holder of the adverse
testimony privilege. However, the defendant spouse still holds the
privilege with respect to confidential communications made within the
confidence of the marital relationship.
Problem 12-H: Husband flees from a hit-and-run accident that was
witnessed by wife. When wife comes home, she tells the babysitter that
the husband ran over someone. At trial, the wife invokes the spousal
privilege, but the prosecution calls the babysitter.
Issue: Whether the babysitter may relate the wife's statements in court
even though the wife asserts her testimonial privilege.
Answer: Yes. The privilege is available only to the extent that it
prevents her own in-court testimony. The babysitter is free to testify
as to what she observed. Also, the wife waived any confidentiality when
she revealed the matter to a third person, breaching confidentiality.
** United States v. Estes, (1986)
2. Facts: Husband came home with a bag of stolen money and told wife
that he stole it. They both then proceeded to hide the money and use it.
Later they separated, and she went to the FBI with the story.
3. Procedural Posture: At the husband's trial, he unsuccessfully
asserted the marital confidence privilege to attempt to prevent his wife
from testifying against him concerning the origin of the money, and his
participation in the hiding and use of it.
4. Issue: Whether confidential communications concerning ongoing
criminal activity between two conspiring spouses are privileged.
5. Holding: No.
6. Reasoning: The communication as to the origin of the money was not
part of an ongoing criminal activity, and should not have been admitted.
However, the ongoing hiding and use of the money was properly allowed
because it was not intended to convey a confidential message. Also,
there is a "partnership in crime" exception which is based on the fact
that greater good will come from permitting a willing spouse to testify
against her husband where they were both engaged in the criminal
Brought to you by - The 'Lectric Law Library
The Net's Finest Legal Resource For Legal Pros & Laypeople Alike.