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Law Outlines > Evidence Outlines

Evidence Exam Outline

Updates Available

A more recent version of these Evidence Exam Outline notes – written by Harvard Law School students – is available

The following is a more accessble plain text extract of the PDF sample above, taken from our Evidence Outlines. Due to the challenges of extracting text from PDFs, it will have odd formatting:

Table of Contents

Trial Judge’s Discretion; Standard of Review 2

Relevance 4

Probative Value and Prejudice 5

Conditional Relevance 9

Hearsay 9

Nonhearsay Uses of Out-of-Court Statements 11

Implied Assertions 14

Hearsay and Confrontation 15

Exceptions to the Hearsay Rule 18

Prior Statements by Witnesses 18

Admissions by Opposing Parties 20

Direct Admissions 20

Multiple Hearsay 21

Completeness 21

Adoptive Admissions 22

Authorized Admissions 23

Agent and Employee Admissions 24

Co-Conspirator Admissions 25

Admissions and the Bruton Rule 26

Spontaneous and Contemporaneous Statements 28

State of Mind 30

The Hillmon Doctrine 30

Injury Reports 32

Recorded Recollection 33

Business Records 35

Qualifying “Businesses” 36

Sources of Information 38

Absence of Record 39

Public Records 39

Former Testimony 42

Dying Declarations 45

Declarations Against Interest 46

Forfeiture By Wrongdoing 48

Residual Exception 49

Hearsay and Due Process 51

Character Evidence 52

Other Uses of Specific Conduct 58

Permissible Purposes 58

Requisite Proof 62

Character and Habit 62

Sexual Assault and Child Molestation 64

Character of the Victim 64

Character of the Defendant 68

Other Forbidden Inferences 70

Settlement Efforts 72

Civil Settlements 72

Criminal Settlements 74

Medical Payments and Liability Insurance 76

Character for Untruthfulness 77

Prior Criminal Convictions 79

Admissible and Inadmissible Convictions 80

Preserving Claims of Error 82

Prior Inconsistent Statements 83

Bias and Incapacity 86

Specific Contradiction 88

Rehabilitation 89

Character for Truthfulness 90

Prior Consistent Statements 92

Opinions, Experts, and Scientific Evidence 93

Lay Opinions 93

Expert Testimony 97

Permissible Subjects and Scope 97

Reliability 101

Court-Appointed Experts 101

Privileges 103

Attorney-Client Privilege 104

Elements of the Privilege 105

Communication 105

In Confidence 106

Between Attorney and Client 108

To Facilitate Legal Service 110

Waiver 112

Crime-Fraud Exception 114

Spousal Privileges 115

Physical Evidence 116

Authentication 117

Best Evidence Rule 121

Scope and Purpose 123

Exceptions 124

*NB: This outline accords with Sklansky, Evidence: Cases, Commentary and Problems 4th ed.

Trial Judge’s Discretion; Standard of Review

FRE 104. Preliminary Questions

  • (a) In General. The Court must decide any preliminary questions about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege.

FRE 103. Rulings on Evidence

  • (a) Preserving a Claim of Error. Party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party and:

    • (1) if the ruling admits the evidence, a party, on the record: (A) timely objects or moves to strike; and (B) states the specific ground, unless it was apparent from the context; or

    • (2) if the ruling excludes the evidence, a party informs the court of its substance by an offer of proof, unless the substance was apparent from the context.

  • (b) Not Needing to Renew an Objection or Offer of Proof. Once the court rules definitively on the record—either before or at trial—a party need not renew objection or offer proof to preserve a claim of error for appeal.

  • (c) Court’s Statement About the Ruling; Directing an Offer of Proof. Court may make any statement about character or form of evidence, objection made, and ruling. Court may direct an offer of proof be made in question-and-answer form.

  • (d) Preventing the Jury from Hearing Inadmissible Evidence. To the extent practicable, court must conduct jury trial so inadmissible evidence is not suggested to jury by any means.

  • (e) Taking Notice of Plain Error. Court may take notice of plain error affecting substantial right, even if claim of error was not properly preserved.

Park et al., Evidence Law

  • Courts differ on degree of certainty required to find error harmless.

    • 9th Cir. uses “more probable than not” for nonconstitutional errors; 3rd Cir. requires reversal unless harmlessness is “highly probable”; 5th Cir. requires reversal unless “sure” error did not influence or had very slight effect on jury verdict.

  • If party opposing admission did not object, objected on wrong ground, or failed to specify ground, appellate court will reverse only if trial judge’s admission was “plain error.” Plain error is not easily defined and allows substantial judicial discretion, considering facts of case, gravity of offense, and probably effect of error. Some courts require error be obvious in record.

Saltzburg et al., FRE Manual

  • Questions of law reviewed de novo. Mixed questions of law and fact reviewed de novo, such as whether communication is protected by privilege. Vast majority reviewed under abuse of discretion standard.

Bandera v. City of Quincy, 344 F.3d 47 (1st Cir. 2003)


  • P testified to her own experience and adduced testimony from witness including Coletta, who had filed then-pending sexual harassment claims of her own against D.

Opinion (Boudin, CJ):

  • Coletta’s testimony on her own experiences was relevant to show liability on the part of supervisors and pattern of knowing toleration.

  • Coletta had no “actual knowledge” of what happened to D, and testimony assessing what D reported happened was “wholly inappropriate opinion testimony” (FRE 701), which “should certainly not have been admitted.”

  • FRE 103(b) provides objection resolved by definitive in limine ruling admitting evidence need not be renewed at trial.

    • Under FRE 103(a)(1), an objection, if its basis is not obvious, is not preserved unless the ground is stated.

    • Under FRE 103(c), failure to preserve the objection means review is at most for plain error.


FRE 401. Test for Relevant Evidence

  • Evidence is relevant if:

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

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

FRE 402. General Admissibility of Relevant Evidence

  • Relevant evidence is admissible unless any of the following provides otherwise: US Constitution, federal statute, FRE, or other rules prescribed by Supreme Court. Irrelevant evidence is not admissible.

Advisory Committee Note to FRE 401

  • The fact to be proven may be ultimate, intermediate, or evidentiary, rather than only “material.”

  • The fact need not be in dispute; evidence offered to prove a point already conceded by the opponent should be excluded on the basis of such considerations as waste of time and undue prejudice (FRE 403).

    • A rule limiting admissibility to controversial points (such as CEC §210) could exclude useful evidence or raise endless questions over admissibility.

Knapp v. State, 79 N.E. 1076 (Ind. 1907)


  • D, as witness on own behalf, offered testimony tending to show self-defense. Testified he heard deceased had clubbed and killed an old man.

  • On rebuttal, P was allowed, over objection and exception of D, to prove by physician’s testimony the old man died of senility and alcoholism and was not clubbed.

Opinion (Gillet, J):

  • The testimony was admissible.

    • Showing D’s claims were factually baseless showed somewhere between the fact and the testimony was a liar, and given people tend to tell the truth and given D’s inability to point to source, has a tendency to make it less probable D’s testimony was true (i.e., less probably he really heard the man was clubbed).

United States v. Dominguez, 907 F.2d 216 (1st Cir. 1990)


  • After presenting evidence a gunshot killed V, P introduced evidence showing D owned gun, D asked friend to bring gun to have barrel replaced, and gunsmith saw scratches on barrel possibly caused by attempted removal, and gunsmith repaired but did not replace barrel.

Opinion (Breyer, J):

  • That evidence is not irrelevant.

    • The fact D owned a gun makes guilt somewhat more probable than if he did not. Having a good reason for owning gun, consistent with innocence, makes evidence less probative, not irrelevant.

    • Regardless, P had to show D owned gun in order to show D tried to have barrel replaced. Effort to replace suggests effort to cover-up, which in turn suggests consciousness of guilt. Given this set of logical connections, replacement effort makes guilt more probable, and the evidence is consequently relevant.

  • D points out that chain of inferences is far weaker than if P had introduced gun itself into evidence.

    • But P is free to introduce weak, as well as strong, evidence. No one claimed this particular piece of evidence proved guilt; it was merely one among many.

State v. Larson, 843 P.2d 777 (Mont. 1992)


  • D was riding with five-year-old on borrowed horse he knew to be hot-blooded. Horse reared and crushed and killed five-year-old. Cops took blood sample from D three hours later. Witness Kurtz, a forensic scientist, measured D’s blood alcohol content.

  • At trial, court allowed Kurtz to compare D’s BAC with level determined to impair ability to drive a vehicle, which is .08.

  • D argues BAC level impairing ability to drive is irrelevant to D’s conduct on a high-blooded young horse.

Opinion (McDonough, J):

  • Court did not abuse discretion in admitting the comparison.

    • D’s BAC on the day of the accident is relevant to show D’s reactions and judgment were impaired.

    • Comparison of D’s BAC with level determined to impair ability to drive vehicle is also relevant, since it aids jury in evaluating D’s level of intoxication using their experience and logic. Its probative value outweighs any prejudice to defendant.

Class notes:

  • Direct evidence is where someone says they saw it, whereas circumstantial evidence allows one to infer the fact therefrom. Circumstantial evidence can be stronger than direct evidence: circumstantial evidence has no incentive to lie, whereas witnesses with direct evidence may.

  • A piece of evidence for which there is an innocent explanation is not irrelevant, just less weighty.

  • Relevance can depend on the purpose for which evidence is introduced, on whether it is a criminal or civil case, and (for character evidence) on who introduces it.

Probative Value and Prejudice

FRE 105. Limiting Evidence That Is Not Admissible Against Other Parties or for Other Purposes

  • If the court admits evidence that is admissible against a party or for a purpose—but not against another party or for another purpose—the court, on timely request, must restrict the evidence to its proper scope and instruct the jury accordingly.

FRE 403. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons

  • The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.

Advisory Committee note to FRE 403

  • “Unfair prejudice” means undue tendency to suggest decision on an improper basis, commonly an emotional one. Unfair surprise is not a ground for exclusion under FRE 403, unlike some views of the common law.

United States v. Noriega, 117 F.3d 1206 (11th Cir. 1997) [FRE 403 Balancing Test]


  • D wanted to use classified information about intelligence work for USA to rebut P’s assertion that he had unexplained wealth.

    • P objected to disclosure of purposes for which USA paid D.

    • P offered to stipulate D received $320k, but D insisted actual amount was $10m and he should be allowed to disclose tasks performed.

  • District court ruled fact, amounts, time and source of payment admissible, but information about content was irrelevant to defense or, alternatively, the tendency of such evidence to confuse the issues substantially outweighed any probative value it might have had.

Opinion (Kravitch, J):

  • Evidence was not wholly irrelevant.

    • Information potentially had some probative value: had D testified he received $10m and P rebutted with evidence of $320k, evidence of services performed may have helped jury decide which is more credible.

  • But potential for confusion was high, and probative value of the Potential probative value was relatively marginal, since purposes of payment does not aid significantly in determining fact and amount of such payments. More importantly, such evidence would have shifted unduly the focus of trial from allegations of drug trafficking to matters of geo-political intrigue.

United States v. Flitcraft, 803 F.2d 184 (5th Cir. 1986)


  • D convicted for failing to file tax returns.

  • D claimed he read cases and article convincing him his wages were not income, merely exchange of money for time.

  • Trial judge refused to allow D to introduce legal materials upon which D claimed to rely, but did allow D to testify about them orally.

Opinion (Johnson, J):

  • A district court’s ruling under FRE 403 will not be disturbed except for abuse of discretion.

  • Documents relied upon by D would have been cumulative, and therefore have little further probative value, because D testified to documents relied upon and their contents.

  • Documents also presented danger of confusing jury by suggesting law is unsettled and jury should resolve doubtful questions of law.

Abernathy v. Superior Hardwoods, Inc., 704 F.2d 963 (7th Cir. 1983)


  • P was hit in back and injured by log from forklift, sued D for negligence.

  • D, president of Superior Hardwoods, made a home videotape showing forklift unloading logs. Video was not tape of accident or attempt to recreate it.

    • District judge allowed tape to be shown to jury but only with sound turned off.

Opinion (Posner, J):

  • Background noise was relevant to defense of contributory negligence.

  • To be admissible—at least as a matter of law, rather than in trial judge’s discretion—the recording must meet minimum standards of reliability.

    • This recording did not meet minimum standards: microphone was not placed where P was standing when hit, nor was volume adjusted for accuracy.

  • Though these points could have been brought out on cross-examination, but district judge is not required to encumber trial with evidence of slight probative value merely because cross-examination might expose its weakness. This potential undue delay and waste of time outweighs probative value.

United States v. McRae, 593 F.2d 700 (5th Cir. 1979)


  • D admittedly shot and killed wife, claimed in defense to murder charge the shooting was not malicious but accidental.

  • D objects to admission of various gory photographs,

Opinion (Gee, J):

  • The trial court carefully reviewed P’s photographic exhibits, excluding some of little probative value. It admitted those important to establishing elements of the offense as bearing on D’s defense of accident.

  • Relevant evidence is inherently prejudicial. FRE 403 excludes only unfair prejudice, substantially outweighing probative value—lest trials be conducted on unreal, sanitized scenarios.

    • FRE 403 is not designed to permit court to “even out” weight of evidence, mitigate a crime, or make a contest where there is little or none.

  • Here is no parade of horrors. Court refuses to interfere with trial court’s exercise of discretion.

United States v. Mehanna, 735 F.3d 32 (1st Cir. 2013)


  • D charged with and convicted of conspiring and attempting to provide, and providing, material support to terrorists, and sentenced to 20 years.

  • D challenged district court’s admission of dozens of terrorism-related images, videos, and materials, some extremely disturbing claiming these vastly exceeded what was necessary to prove P’s case, inflamed the jury, and contaminated the verdict.

Opinion (Selya, J):

  • The evidence bears on D’s motive and intent.

  • There is a line past which P’s introduction of relevant evidence for legitimate advancement of its case goes too far.

  • The district court gave the question careful attention, and so this court is reluctant to second-guess FRE 402 determinations.

Old Chief v. United States, 519 U.S. 172 (1997)


  • D was arrested after altercation involving a gunshot, resulting in charges including assault and using a firearm. D also charged with felon in possession.

  • D’s previous conviction was for assault causing serious bodily injury.

    • D offered to stipulate the fact of prior conviction.

    • P refused to join in stipulation, and named and described D’s prior offense.

Opinion (Souter, J):

  • As a threshold matter, the name of the previous offense is not irrelevant to the prior-conviction element of felon-in-possession, and therefore not inadmissible under FRE 402.

    • Nor was relevance affected by availability of alternative proofs of the element. For evidence to be inadmissible in the presence of other related evidence, it must be on FRE 403 grounds.

  • Principle issue is scope of trial judge’s discretion under FRE 403.

    • Propensity evidence would be an improper basis for conviction, and is therefore subject to analysis under FRE 403 for probative value versus prejudice.

      • FRE 404(b): Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith.

      • Note to FRE 404(b): No mechanical solution for dual nature of evidence legitimate for element of crime and illegitimate for character.

    • Probative value, not relevance, may be calculated by comparing evidentiary alternatives under FRE 403 (not FRE 401).

      • Note to FRE 401: Party’s concession is pertinent to court’s discretion.

    • Risk of prejudice is especially obvious when prior conviction is similar to the crime presently charged.

  • P invokes standard rule: prosecution is entitled to prove its case by traditional evidence of its own choice; D may not stipulate or admit his way out of full evidentiary force of the case as P chooses to present it.

    • The standard rule has no application when the point at issue is a defendant’s legal status dependent on a judgment wholly independently of the concrete events of later criminal behavior charged against him.

  • In any case in which the prior conviction is for an offense likely to support conviction on some improper ground, the only reasonable conclusion is that the risk of unfair prejudice did substantially out-weigh the discounted probative value of the record of conviction.

    • It was an abuse of discretion to admit the record when an admission was available.

Dissent (O’Connor, J):

  • FRE 105 provides when evidence is admissible for one purpose but not another, “the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.”

    • Such an instruction was made. The jury is presumed to have followed this cautionary instruction, and the instruction offset whatever prejudice might have arisen.

  • Jury is just as likely to be puzzled by the gap resulting from D’s stipulation as it would be by concession of any other element of the crime.

  • Revealing the name or basic nature of past crime is not “unfair” prejudice.

Conditional Relevance


  • Sufficiency standard: question is not whether the preliminary fact is actually true; it is whether a reasonable jury could think it is true, given the other evidence in the case.

  • Judge still decides admissibility.

  • [In practice, if there is any evidence—even the weakest evidence—the preliminary fact exists, then the conditionally-relevant evidence will be admitted.]

FRE 104. Preliminary Questions

  • (b) Relevance That Depends on a Fact. When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. The court may admit the proposed evidence on the condition that the proof be introduced later.

Advisory Committee note to FRE 104(b)

  • If evidence is insufficient to allow a reasonable jury to find a conditionally relevant fact, the judge withdraws the matter from their consideration.

  • The order of proof here, as generally, is subject to control of the judge.

State v. McNeely, 8 P.3d 212 (Or. 2000)


  • D was convicted of aggravated murder. Fellow jail inmate [“W”] testified at trial about statements D made to him.

    • W testified he spoke to a man who admitted to killing victim. If D were that man, then W’s testimony is relevant.

Opinion (Van Hoomissen, J):

  • Despite W’s inability to identify D at trial, trial court determined a reasonable juror could find D was the person with whom W spoke in jail.

    • W’s inability to identify D went to the weight the jury might give to W’s testimony, not to the testimony’s admissibility.


FRE 801. Definitions That Apply to This Article; Exclusions From Hearsay

  • (a) Statement. “Statement” means a person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.

  • (b) Declarant. “Declarant” means the person who made the statement.

  • (c) Hearsay. “Hearsay” means a statement that:

    • (1) the declarant does not make while testifying at the current trial or hearing; and

    • (2) a party offers in evidence to prove the truth of the matter asserted in the statement.

  • [Professor’s definition: “Hearsay is an out-of-court statement introduced to prove the truth of the matter asserted.”]

    • Witness and declarant can be the same person: when the witness testifies about a statement he made outside of court.

      • The witness needn’t be a person (it could be a diary), but the declarant must be a live person.

    • “The matter asserted” means matter asserted by the declarant, not by the party.

    • “Introduced to prove” means any step in the chain of inferences; it needn’t be the first or ultimate step.

    • It doesn’t matter how the out-of-court statement is proven.

  • If it follows this, it’s hearsay: declarant says X; therefore, declarant believes X to be true; therefore, X is true.

    • Inference between statement and belief carries risk of sincerity (declarant lying) and risk of narration (what does declarant mean when saying X).

    • Inference between belief and truth carries risk of perception (declarant misperceived situation) and risk of memory (declarant misremembers).

    • If it doesn’t follow this chain of inferences, it’s not hearsay.

FRE 802. The Rule Against Hearsay

  • Hearsay is not admissible unless any of the following provides otherwise:

    • a federal statute;

    • these rules; or

    • other rules prescribed by the Supreme Court.

Trial of Sir Walter Raleigh for High Treason (1603)

  • D was charged with conspiring with Lord Cobham [“W1”] to kill King James. W1 was interrogated and signed a sworn confession he later recanted. This confession was the chief evidence against D.

  • Court rejects D’s request to face W1.

  • P produces a witness viva voce named Dyer [“W2”].

    • W2 says a Portugal Gentleman [declarant] told W2 that D and W1 would kill the King.

  • D found guilty of treason.

Leake v. Hagert, 175 N.W.2d 675 (N.D. 1970)


  • P sued D for negligence after D crashed car into the back of a tractor P was driving.

  • D counterclaimed, alleging P negligently drove at night without proper lights.

  • Trial court admitted testimony from W1, who investigated the accident and testified D’s son told W1 a light on the rear of the tractor had been out for some time.

Opinion (Paulson, J):

  • W1’s testimony was hearsay and should have been excluded.

    • D’s son did not testify, was not party to action, was not under oath, was not subject to cross-exam, and was not available to testify because he was in the army overseas.

  • The erroneous admission was not prejudicial and did not constitute reversible error.

    • Error in the admission of evidence is not a ground for a new trial unless such error affects the substantial rights of the parties.

    • Other witnesses testified to the same information, and D himself introduced a statement by W1 asserting the same information.

Nonhearsay Uses of Out-of-Court Statements


  • Four ways evidence can come in for nonhearsay purpose:

    • indisputably false statement (Lyons: doesn’t support matter asserted)

    • verbal act (Saavedra: fraud)

    • effect on witness (Subramaniam: threat puts witness under duress)

    • show belief at time of statement (Parry: believed caller was agent)

Advisory Committee note to FRE 801(c)

  • If the significance of an offered statement lies solely in the fact that it was made, no issue is raised as to the truth of anything asserted and the statement is not hearsay.

Lyons Partnership v. Morris Costumes, Inc., 243 F.3d 789 (4th Cir. 2001)


  • Plaintiff alleged Defendant rented out a “Duffy the Dragon” costume infringing on Barney trademarks.

  • TC discarded as hearsay most evidence of actual confusion.

    • E.g., principal’s testimony that, when she wore a Duffy costume at a school rally, children shouted “Barney! Barney!”

Opinion (Niemeyer, J):

  • If the TC disregarded the evidence because it was hearsay, that conclusion was erroneous.

    • P did not offer children’s statements to prove the truth of the matter asserted—that the person wearing the costume was in fact Barney—but rather merely to prove the children expressed their belief that the person was Barney.

      • [Indisputably false statement. Here, nobody believes the matter asserted, that “Duffy is Barney.” Statements not introduced to prove matter asserted.]

      • This is direct evidence of children’s reactions and not hearsay.

  • This evidence was highly probative of actual confusion, and existence of actual confusion is often dispositive to a trademark infringement analysis.

United States v. Parry, 649 F.2d 292 (5th Cir. 1981)


  • D was convicted by jury for conspiring to distribute PCP.

  • In support of position he had known from the outset the agents’ identities, D testified he told his mother a person who called the home was a narcotics agent with whom he was working. To corroborate this story, D called mother as a witness.

Opinion (Morgan, J):

  • Here, statement was not offered to prove the caller was a narcotics agent or D was actually working with agent, but to establish D’s knowledge of agent’s identity.

    • Using out-of-court utterance as circumstantial evidence of declarant’s knowledge of the existence of some fact, rather than as testimonial evidence of the truth of the matter asserted, does not offend the hearsay rule.

  • Danger that jury could improperly use the out-of-court statement as an assertion to be believed does not render the statement inadmissible. Accepted practice is to admit evidence with jury instruction only to consider evidence for permissible purpose.

  • Rather than being merely cumulative, TC excluded testimony was only available evidence to corroborate D’s story that he had known of agent’s identities.

Subramaniam v. Public Prosecutor, 1 W.L.R. 965 (Privy Council 1956)


  • D convicted of providing material support to terrorists; argued he was acting under duress, and at time of capture D intended to surrender.

    • As evidence, D described how he was forced to accompany terrorists who told him he was being taken to their leader.

  • TC ruled all conversation with the terrorists was inadmissible as hearsay.


  • Peremptorily ruling out the evidence was in error.

    • [Statement is being offered to show the effect it had on the witness. Similar to verbal act.]

    • The fact the statement was made is frequently relevant in considering the mental state and conduct of a witness or some other person in whose presence the statement was made.

Southerland v. Sycamore Community School District, No. 03-4189 (6th Cir., Dec. 17, 2004)


  • D, an employer, argues testimony regarding rumors floating around bus depot that P was in a relationship with stalker or was being stalked and notes made by counselor assigned to investigate P’s complaint were inadmissible hearsay.

Opinion (Sutton, J):

  • The rumor testimony and notes were not hearsay.

    • They were not offered to prove the truth of the matters they asserted (i.e., that Stalker indeed harassed).

    • They were used to show D’s officials had knowledge of the problem, which was an essential element of the negligent-retention claim. [Could use FRE 403 to challenge the sufficiency of limiting instructions.]

United States v. Johnson, 71 F.3d 539 (6th Cir. 1995)


  • D, who ran health clinic with partner, was convicted by jury for distribution of controlled substances and mail fraud.

  • Employee testified she heard partner tell D over telephone that “he was going to have to stop writing prescriptions like that.”

Opinion (Kennedy, J):

  • Employee’s testimony of telephone conversation she overheard is not hearsay.

    • It is not offered to prove truth of matter asserted.

    • Rather, testimony is evidence of D’s knowledge he was prescribing medication without legitimate medical purpose and outside the course of professional practice.

  • Since D’s state of mind is an element of the offense, this evidence is relevant.

United States v. Jefferson, 650 F.2d 854 (6th Cir. 1981)


  • TC admitted letter and two mailgrams into evidence to show D had been sent notice of hearing he failed to attend.

Opinion (Jones, J):

  • Evidence was properly admitted, because it was not offered to prove truth of the matter asserted, but only to show D had been sent notice of hearings.

United States v. Saavedra, 684 F.2d 1293 (9th Cir. 1982)


  • D convicted of wire fraud challenges admission of testimony of three victims of scheme, who testified they received calls from people posing as police officers.

Opinion (East, J):

  • Evidence was properly admitted.

    • Testimony was not offered to prove the statement made by callers was true, i.e. that they were in fact police officers.

    • Rather, testimony was introduced to show how credit card information was fraudulently obtained by persons posing as police, thus providing circumstantial evidence that later use of numbers to purchase money orders was intentional, and that others besides D were involved in the scheme.

Hanson v. Johnson, 201 N.W. 322 (Minn. 1924)


  • To prove ownership of corn, P testified over hearsay objection that tenant, after husking corn, pointed to the corn in question and said to P “Here is your corn over here, it belongs to you.”

Opinion (Wilson, CJ):

  • `The evidence was admissible, not hearsay, since the language of the tenant is the very fact necessary to be proved.

    • The verbal part of the transaction between P and tenant was necessary to prove the fact.

    • The words were verbal acts, which aid in giving legal significance to the conduct of the parties.

Creaghe v. Iowa Home Mutual Casualty Co., 323 F.2d 981 (10th Cir. 1963)


  • P challenged TC’s admission of testimony of D’s employee that insuree stated he wanted policy canceled and that insuree’s check paying premiums was returned.

Opinion (Seth, J):

  • Hearsay rule does not exclude relevant testimony as to what the contracting parties said with respect to the making or the terms of an oral agreement. Same rule applies to oral termination of agreement.

    • Presence or absence of such words and statements of themselves are part of the issues in the case.

    • All that needs to be determined is whether or not the statements were made. That fact was subject to testing through cross-exam by counsel.

United States v. Montana, 199 F.3d 947 (7th Cir. 1999)


  • Cop heard Dodd tell D to tell D’s father that “it’s going to be $10,000” for the favorable testimony. TC allowed cop to testify to what he heard.

Opinion (Posner, CJ):

  • Testimony was admissible, since Dodd’s words were a “performative utterance.”

    • Performative utterances, also known as verbal acts, commit the speaker to a course of action, such as a promise, offer or demand.

  • Performative utterances are not within the scope of the hearsay rule because they do not make any truth claims.

    • If cop had heard Dodd say “your father promised me $10,000”, that statement would have been hearsay since its value depended on the statement being truthful.

Implied Assertions


  • FRE and most state codes defined hearsay to include only “statements” offered to prove the truth of what they assert. “Statements” are in turn defined to include nonverbal conduct only when it is intended as a form of communication.

United States v. Zenni, 492 F. Supp. 464 (E.D. Ky. 1980)


  • Prosecution for illegal bookmaking activities. Unknown callers stated directions for the placing of bets on sporting events. P proposes to introduce this evidence to show callers believed the premises were used in betting operations.

Opinion (Bertelsman, J):

  • The utterances of absent declarants are not offered for the truth of the words and the mere fact the words were uttered has no relevance of itself.

    • Not offered for truth: the utterance “Put $2 on the Yankees” is a direction, not an assertion and can be neither true nor false.

    • No relevance of itself: it is not relevant what the statements actually were.

    • Rather, the utterances are offered to show the declarants’ belief in a fact sought to be proved.

  • FRE excludes implied assertions from the scope of the hearsay rule, departing markedly from common law.

    • No oral or written expression, or nonverbal conduct should be considered hearsay unless it was intended to be an “assertion” concerning the matter.

  • The proffered evidence is an implied assertion and therefore expressly excluded from operation of the hearsay rule under FRE 801.

State v. Dullard, 668 N.W.2d 585 (Iowa 2003) [Iowa: implied assertion = hearsay]


  • D was convicted of manufacturing meth.

  • Cops found in the garage a note which read “B—I saw a cop standing outside.”

  • P argues it was introduced to support an inference declarant believed D needed to be told of police because he was in possession of the drug lab materials in the garage.

Opinion (Cady, J):

  • The note is hearsay.

    • Unlike the FRE, Iowa evidence code does not explicitly exclude implied assertions from the hearsay rule.

      • Implied assertions can be no more reliable than the predicate expressed assertion.

  • The note is inadmissible.

    • Proof of a conspiracy must include evidence independent of the co-conspirator’s statement.

    • There was insufficient evidence in the note to establish the speaker’s identity.

Hearsay and Confrontation


  • Sixth Amendment’s Confrontation Clause gives every criminal defendant the right “to be confronted with the witnesses against him.”

    • Only applies to hearsay

    • Three limitations:

      • Applies only in “criminal prosecutions”

      • Grants right of confrontation only to “the accused”

      • Right is satisfied once the accused is “confronted”

    • No implications for three larger categories of hearsay:

      • In civil cases

      • Introduced against the prosecutors in criminal cases

      • Declarations from someone who winds up testifying in open court, subject to cross-examination

  • Ohio v. Roberts, 448 U.S. 56 (1980)

    • SCOTUS read Confrontation Clause to allow hearsay from declarant who did not testify, so long as evidence fell within a well-established exception to hearsay rule or carried comparable “indicia of reliability.”

  • Crawford v. Washington

    • Court has rejected Roberts approach.

    • What matters is whether the out-of-court statement was “testimonial.”

  • Ohio v. Clark

    • Applies Crawford test

  • Chapman v. California, 486 U.S. 18 (1967)

    • Constitutional error generally requires reversal of a defendant’s conviction unless the prosecution can show the error was harmless beyond a reasonable doubt.

  • Bruton v. United States, 391 U.S. 123 (1968)

    • Sharply restricted use of limiting instructions to avoid violation of Confrontation Clause.

  • In Ohio v. Roberts, confrontation & hearsay are coextensive; so, if it meets the hearsay exception it satisfies confrontation. However, Crawford separates CC analysis and hearsay analysis; it makes CC turn on whether the statement is testimonial or not, so we have to make separate inquiries.

Crawford v. Washington, 541 U.S. 36 (2004) [testimonial test]

Opinion (Scalia, J):

  • Confrontation Clause applies to testimonial out-of-court as well as in-court statements.

    • “Testimony” is typically “a solemn declaration or affirmation made for the purpose of establishing or proving some fact.”

      • Formal statement to government officers is testimony. Casual remark to acquaintance not testimony.

    • Various formulations of core class of testimonial statements:

      • Ex parte in-court testimony or its functional equivalent—that is, material such as affidavits, custodial examinations, prior testimony the defendant was unable to cross-examine, or similar pretrial statements declarants would reasonably expect to be used prosecutorially.

      • Statements made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.

  • Confrontation Clause disallows admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify and the defendant had prior opportunity for cross-examination.

    • Historical exceptions: business records or statements in furtherance of a conspiracy, dying declarations, or forfeiture by wrongdoing.

    • When the declarant appears from cross-examination at trial, the Confrontation Clause places no constraints at all on the use of prior testimonial statements.

    • The CC does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.

Concurrence (Rehnquist, CJ):

  • There were always exceptions to the general rule of exclusion and it is not clear the framers wanted to categorically eliminate further ones.

Ohio v. Clark, 576 U.S. ____ (2015) [primary purpose test for testimonial]


  • D lived with girlfriend-TT’s children, LP and AT. LP went to school with injuries, and teachers asked what happened and who did this; LP responded that D did it. D picked LP up at school that day and left quickly, taking children to D’s mother’s house. Social worker found children next day, and LP and AT both had injuries.

  • D charged with assault, endangering children, and domestic violence.

  • At trial, P introduced LP’s statements to teachers as evidence of D’s guilt, but LP did not testify.

    • Under Ohio law, children under 10 years old are incompetent to testify if they “appear incapable of receiving just impressions of the facts and transactions respecting which they are examined.”

    • LP ruled incompetent to testify.

    • Under Ohio Rule of Evidence 807, reliable hearsay by child abuse victims is allowed. Court rules LP’s statements to teachers bore sufficient guarantees of trustworthiness to be admitted as evidence.

  • D challenged LP’s out-of-court statements under CC. Trial court ruled statements were not testimonial. D found guilty. CoA reversed on ground statements violated CC; and SSC affirmed.

    • SSC held statements were testimonial because primary purpose of teacher’s questions was not to deal with existing emergency but to gather evidence potentially relevant to subsequent criminal prosecution.

      • Noted Ohio’s mandatory reporting law meant teachers acted as agents of state, and sought facts concerning past criminal activity to identify person responsible, eliciting statements functionally identical to live, in-court testimony, doing precisely what a witness does on direct examination.

Opinion (Alito, J):

  • Law

    • Crawford v. Washington: “Witness” is one “who bears testimony.” “Testimony” is “a solemn declaration or affirmation made for the purpose of establishing or proving some fact.”

    • Davis v. Washington and Hammon v. Indiana, 547 U.S. 813 (2006): dealt with statements given to law enforcement officers by victims of domestic abuse.

      • Victim in Davis made statements to 911 emergency operator during and shortly after boyfriend’s violent attack. Court held statements were not testimonial.

      • Victim in Hammon, after being isolated from abusive husband, made statements to police memorialized in a “battery affidavit.” Court held statements were testimonial.

      • Primary purpose test:

        • Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.

        • They are testimonial when the circumstances objectively indicate there is no such ongoing emergency and that the primary purpose of the interrogation is to enable police assistance to establish or prove past events potentially relevant to later criminal prosecution.

      • The Davis/Hammon “objective” standard means we do not consider the subjective or actual purpose of the actors, but rather the purpose a reasonable person would have, ascertained from the individual’s statements and actions and the circumstances of the encounter.

    • Michigan v. Bryant, 562 U.S. 344 (2011): D convicted of murder based on victim’s statements to police after they found him dying from gunshot wound. Primary purpose of that interrogation was to respond to an ongoing emergency; its purpose was not to create a record for trial and thus is not within scope of CC.

      • Primary purpose inquiry must consider all relevant circumstances.

        • Ongoing emergency is simply one factor informing primary purpose inquiry. Existence and duration of emergency depend on scope of danger posed to victim, police, and public.

      • Crawford requires examination of primary purposes of both declarant and questioner, as demonstrated by their statements and actions.

        • Another factor is informality of situation and interrogation.

        • Standard rules of hearsay, designed to identify some statements as reliable, will be relevant.

        • A conversation may begin as interrogation to determine the need for emergency assistance and then evolve into testimonial statements.

  • In the end, the question is whether, in light of all the circumstances, viewed objectively, the primary purpose of the conversation was to create an out-of-court substitute for trial testimony.

    • Historical exceptions are still recognized. Thus, the primary purpose test is necessary but not sufficient for exclusion under the CC.

    • At least some statements to individuals who are not law enforcement officers could conceivably raise confrontation concerns. Court here declines to adopt categorical rule excluding them form CC’s reach.

      • Nevertheless, statements to non-cops are “much less likely to be testimonial” than statements to cops.

      • Statements by very young children will rarely, if ever, implicate the confrontation clause.

  • Here, statements were not testimonial.

    • Teacher’s questions were aimed at identifying abuser in order to protect victim from future attacks. No indication primary purpose was to gather evidence for D’s prosecution.

      • Teachers did not inform LP statements would be used to arrest D.

      • Conversation was informal and spontaneous.

      • LP did not likely intend statement to substitute for trial testimony.

      • Similar statements were probably historically admissible at common law.

      • Teachers are unlike police, despite mandatory reporting statute. Natural tendency of teachers’ questions and duty to report to result in prosecution is irrelevant.

      • Cause of LP’s unavailability is irrelevant.

      • Jury’s perception of statements as functional equivalent of testimony is irrelevant.

Exceptions to the Hearsay Rule

Prior Statements by Witnesses


  • Two categories of hearsay exceptions:

    • FRE 803: Exceptions that apply whether or not declarant is available to testify in court.

    • FRE 804: Exceptions that apply only if the declarant is unavailable.

  • FRE 801 declares two special classes to be “not hearsay”: out-of-court statements by witnesses and parties (who are present at the proceedings)

  • When examining whether statements are admissible under hearsay ban, don’t forget to consider whether it may be barred anyway by the Confrontation Clause.

FRE 801. Definitions That Apply to This Article; Exclusions From Hearsay

  • (d) Statements That Are Not Hearsay. A statement that meets the following conditions is not hearsay:

    • (1) A Declarant-Witness’s Prior Statement. The declarant testifies and is subject to cross-examination about a prior statement, and the statement:

      • (A) is inconsistent with the declarant’s testimony and was given under penalty of perjury at trial, hearing, or other proceeding in a deposition;

      • (B) is consistent with the declarant’s testimony and is offered:

        • (i) to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; or

        • (ii) to rehabilitate the defendant’s credibility as a witness when attacked on another ground; or

      • (C) identifies a person as someone the declarant perceived earlier.

Advisory Committee Note to FRE 801(d)(1)

  • Where a person made a prior out-of-court statement and is now available for cross-examination concerning it, under oath and in the presence of the trier of fact:

    • If witness admits they made the statement and claims it was true, there is no hearsay problem because they adopt the statement. Problems arise when witness on stand denies the statement.

  • Under the FRE, prior statements are substantive evidence if given under oath.

Albert v. McKay & Co., 174 Cal. 451 (1917)


  • Blacksmith testified machine had been running continuously. P sought to impeach blacksmith by calling in rebuttal a witness who testified blacksmith had said, shortly after accident, that machinery had not been running.

Opinion (Sloss, J):

  • When a witness is impeached by proof of prior inconsistent statements, the effect is merely to discredit him as a witness.

    • The former statements made by him are incompetent for any other purpose.

    • They do not constitute evidence of the truth of the facts so stated to him.

United States v. Owens, 484 U.S. 554 (1988)


  • . When FBI agent investigating assault first attempted to interview V, FBI found V lethargic and unable to remember attacker’s name. When FBI spoke to V two weeks later, V was much improved and able to describe attack, name attacker, and identified D from array of photos.

  • On cross-exam, V admitted he could not remember seeing D, could not remember numerous visitors to hospital, or whether those visitors suggested D was assailant.

Opinion (Scalia, J):

  • Second interview was not hearsay

    • FRE 801(d)(1)(C) defines as not hearsay a prior statement “of identification of a person made after perceiving the person,” if declarant “testifies at the trial or hearing and is subject to cross-examination concerning the statement.”

  • No violation of Confrontation Clause

    • CC requires only an opportunity for cross-exam, not cross-exam that is effective to whatever extent defense wishes.

Admissions by Opposing Parties


  • FRE declares two special classes to be “not hearsay”: out-of-court statements by witnesses and parties who are present at the proceedings

  • When an out-of-court statement is offered into evidence by the person who made it, the statement qualifies as an “admission” and is therefore exempt from the hearsay rule—regardless of whether the statement seems on its face to “admit” anything contrary to the declarant’s interest.

  • Admissions doctrine is not limited to statements made directly by party against whom they are introduced. Also applies when, for any of several reasons, it seems somehow right to hold party against whom evidence is offered at least partially responsible for out-of-court statement.

  • Unclear whether Confrontation Clause reinterpretation in Crawford and Davis requires reconsidering admissibility of some statements previously introduced as admissions.

    • Direct admissions will not be affected: defendant cannot persuasively claim he had no chance to “confront” himself.

    • Most co-conspirator admissions will probably qualify as non-testimonial.

    • Many but not all adopted admissions, authorized admissions, and employee admissions will be deemed non-testimonial.

Direct Admissions

FRE 801. Definitions That Apply to This Article; Exclusions From Hearsay

  • (d) Statements That Are Not Hearsay. A statement that meets the following conditions is not hearsay:

    • (2) An Opposing Party’s Statement. The statement is offered against an opposing party and:

      • (A) was made by the party in an individual or representative capacity;

Salvitti v. Throppe, 23 A.2d 445 (Pa. 1942)

  • P crashed after swerving to avoid D’s employee’s negligently-driven truck. P testified: D visited them, D admitted accident was D’s fault, and D promised “everything would be taken care of.”

  • Acknowledgement by party of fault is admissible as a declaration against interest.

  • Personal knowledge is not required in the case of an admission by a party.

United States v. McGee, 189 F.3d 626 (7th Cir. 1999)

  • To be admissible as admission, a statement does not need to be inculpatory. It only needs to be made by the party against whom it is offered.

McCormick on Evidence

  • Declarations against interest, treated under FRE 804, must be against declarant’s interest when made. No such requirement for admissions.

United States v. Phelps, 572 F. Supp. 262 (E.D. Ky. 1983)

  • When cops discovered drugs in gym bag, D had stated “that is my gym bag, but co-defendant put it in the trunk.”

  • Although proponent of testimony was declarant himself, testimony constituted hearsay under FRE 801. Statement of party may be introduced by admission only when offered against that party.

Multiple Hearsay

FRE 805. Hearsay Within Hearsay

  • Hearsay within hearsay is not excluded by the rule against hearsay if each part of the combined statements conforms with an exception to the rule.

Reed v. McCord, 54. N.E. 737 (N.Y. 1899)

  • Stenographer for board of coroners was permitted, over D’s objection to testify that at hearing before coroner, D gave evidence about what caused the accident.

    • D was not present when accident occurred, so statement before coroner was not based on personal knowledge.

  • But, D being party to action, admission against interest and in favor of adversary may be admitted if of a fact material to the issue.

  • If D had merely admitted he heard the accident occurred in the manner stated, it would have been inadmissible, since it would then have amounted only to an admission he heard the statement he repeated, rather than admission of the facts included in it.

Foster v. Commissioner of Internal Revenue, 80 T.C. 34 (1983)

  • Although FRE 805 does not technically apply because admissions do not constitute hearsay statements under FRE 801(d)(2), hearsay within an admission is subject to objection unless an exception to the hearsay rule applies.

  • There is a difference between offering, for the purpose of proving X is a fact, a party’s out-of-court statement that “A said X is a fact,” versus “X is a fact.” Latter is admissible, whereas former may be excluded by hearsay.


FRE 106. Remainder of or Related Writings or Recorded Statements

  • If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time of any other part—or any other writing or recorded statement—that in fairness ought to be considered at the same time.

Beech Aircraft Corp. v. Rainey, 488 U.S. 153 (1988)

Opinion (Brennan, J):

  • Jury was given distorted and prejudicial impression of P’s letter. The thrust of the letter was that a mechanical failure cased crash, yet jury was basically told P’s letter blamed human error.

  • Rule of completeness: The opponent, against whom a part of an utterance has been put in, may in his turn complement it by putting in the remainder, in order to secure for the tribunal a complete understanding of the total tenor and effect of the utterance.

    • FRE 106 has partially codified the doctrine of completeness.

  • When a party has made use of a portion of a document such that misunderstanding or distortion can be averted only through presentation of another portion, the material required for completeness is ipso facto relevant and therefore admissible under FRE 401 and FRE 402.

Adoptive Admissions

FRE 801. Definitions That Apply to This Article; Exclusions From Hearsay

  • (d) Statements That Are Not Hearsay. A statement that meets the following conditions is not hearsay:

    • (2) An Opposing Party’s Statement. The statement is offered against an opposing party and:

      • (B) is one the party manifested that it adopted or believed to be true;

Advisory Committee Note to FRE 801(d)(2)(B)

  • Admission may be made by adopting or acquiescing in the statement of another.

    • Adoption or acquiescence may be manifested in any appropriate manner.

    • Decision in each case calls for an evaluation in terms of probable human behavior.

United States v. Fortes, 619 F.2d 108 (5th Cir. 1980)


  • Ds were present during conversation. W1 testified that he asked Ds if they did a bank robbery. D1 answered affirmatively and described details of robbery, including D2’s participation.

Opinion (Campbell, J):

  • Testimony was properly received against D2 under FRE 801(d)(2)(B), which allows adoptive admissions, including admissions by silence or acquiescence.

  • General rule of admission by silence:

    • When a statement tending to incriminate one accused of committing a crime is made in his presence and hearing and such statement is not denied, contradicted, or objected to by him, both the statement and the fact of his failure to deny are admissible in a criminal prosecution against him, as evidence of his acquiescence in its truth, if made under such circumstances as would warrant the inference that he would naturally have contradicted them if he did not assent to their truth, assuming they are present and conscious, heard and comprehended the statements.

Southern Stone Co. v. Singer, 665 F.2d 698 (5th Cir. Unit B 1982)


  • Letter purports to relate several statements made by D concerning activities at the time in question, and included postscript requesting D respond if any of the contents of the letter were inaccurate.

Opinion (Anderson, J):

  • Mere failure to respond to a letter does not indicate an adoption unless it was reasonable under the circumstances for the sender to expect the recipient to respond and to correct the erroneous assertions.

  • The circumstances here do not support a reasonable expectation of a response.

    • D claimed he did not respond to the letter because he didn’t care about the company and had nothing to do with it.

  • Once stripped of its status as an admission, the letter can be viewed only as a hearsay declaration of P’s counsel as to what D said.

    • Letter involves two levels of hearsay: letter says that P’s counsel said (first level) that D made certain admissions (second level).

    • Even if the second level is not hearsay under FRE 801(d)(2)(A), the first level still exists.

Authorized Admissions

  • Authorized, employee, and co-conspirator admissions may raise Confrontation Clause problems.

    • The co-conspirator is unlikely to be testimonial, since it has to be during and in furtherance of the conspiracy.

    • Employee may also raise CC issues. It is unresolved whether corporations have a Sixth Amendment right to confrontation.

FRE 801. Definitions That Apply to This Article; Exclusions From Hearsay

  • (d) Statements That Are Not Hearsay. A statement that meets the following conditions is not hearsay:

    • (2) An Opposing Party’s Statement. The statement is offered against an opposing party and:

      • (C) was made by a person whom the party authorized to make a statement on the subject;

  • The statement must be considered but does not by itself establish the declarant’s authority under (C).

Advisory Committee Note to FRE 801(d)(2)(C)

  • The rule includes not only statements made to a third party, but also to statements made by the agent to the principal. Thus, a party’s books or records are useable against him, without regard to any intent to disclose to third persons.

  • CEC, on the other hand, limits status as an admission in this regard to statements authorized by the party to be made for him, which may limit to statements to third persons.

Hanson v. Waller, 888 F.2d 806 (11th Cir. 1989)


  • D introduced letter from P’s first attorney to D’s attorney, which indicated “here is a photograph that shows your client (D) could not have seen my client (P) as she crossed my street.”

Opinion (Marcus, J):

  • FRE 801(d)(2)(C) excludes from the definition of hearsay statements used against a party which were made by another person authorized by the party to make a statement concerning the subject.

    • Allows statements made by attorneys in representational capacity.

    • Although attorney does not have authority to make out-of-court admission for client in all instances, he does have authority to make admissions which are directly related to the management of litigation.

    • Contents of letter therefore fall within this exclusion.

Agent and Employee Admissions

FRE 801. Definitions That Apply to This Article; Exclusions From Hearsay

  • (d) Statements That Are Not Hearsay. A statement that meets the following conditions is not hearsay:

    • (2) An Opposing Party’s Statement. The statement is offered against an opposing party and:

      • (D) was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed;

  • The statement must be considered but does not by itself establish … the existence or scope of the relationship under (D).

Advisory Committee Note to FRE 801(d)(2)(D)

  • Tradition, as here, for testing admissibility of statements by agents as admissions is to apply the usual test of agency: Was the admission made by agent acting in the scope of employment?

  • Since few principals employ agents for the purpose of making damaging statements, the usual result was exclusion.

Mahlandt v. Wild Canid Survival & Research Center, Inc., 588 F.2d 626 (8th Cir. 1978)


  • Issues on appeal are three rulings by trial court excluding conclusionary statements against interest, two made by defendant-employee and one made by defendant-corporation.

    • (1) Note by D-E left in corporate office, reading “Call me. Wolf bit a child, and I need to tell you what happened.”

    • (2) Oral statement by D-E to D-C that “Wolf had bit a child that day.”

    • (3) Minutes from D-C meeting, at which D-E was not present, discussing “legal aspects of the incident of wolf biting child.”

Opinion (Van Sickle, J):

  • (1) & (2) are not hearsay, and are admissible against D-E.

    • They were his own statements and so were different from the reported statement of another. They were also statements the truth of which he manifested his adoption or belief in.

  • (1) & (2) are also admissible against D-C.

    • Statements were made when D-E was agent or servant of D-C.

    • Statements concerned a matter within the scope of D-E’s agency or employment.

    • FRE 801(d)(2)(D) allows “in-house” statements, as well as those made to third-parties.

    • No requirement that declarant have personal knowledge of the underlying facts.

  • (3) is admissible against D-C.

    • Statement falls within FRE 801(d)(2)(C) and is admissible, since corporate officers at meeting had authority to include their conclusions in the record of the meeting.

  • (3) is not admissible against D-E.

    • No servant or agency relationship justifying admission of evidence of board minutes against D-E, non-attending, non-participating employee.

  • TC’s exclusion of (1) & (2) are not justified under FRE 403, but (3) is.

    • Advisory Committee discussion of FRE 801(d)(2) called for generous admissibility treatment of against-interest statements in regard to technical demands searching for trustworthiness, restrictions of opinion rule and rule requiring first-hand knowledge.

    • Applying the spirit of FRE 801(d)(2), FRE 403 does not warrant exclusion of (1) & (2). But the limited admissibility of board minutes, coupled with repetitive nature of evidence and low probative value of the minute record, all justify supporting the judgment of the trial court under FRE 403.

Sea-Land Service, Inc. v. Lozen International, LLC, 285 F.3d 808 (9th Cir. 2002)


  • Excluded an internal company email authored by an employee of D and forwarded to P by a second employee of D.

Opinion (Graber, J):

  • Email is an admission by a party opponent

    • Original email, an internal company memorandum, closes with electronic signature indicating author’s name and position at time email was written.

      • Email concerns a matter within the scope of employee’s employment.

    • Second email manifested an adoption or belief in the truth of the information contained in the original, falling under FRE 801(d)(2)(B)

      • Second copied entire content of first, adopting the contents of the original.

      • Contents of email within scope of employment: admission fell under FRE 801(d)(2)(D).

Co-Conspirator Admissions

FRE 801. Definitions That Apply to This Article; Exclusions From Hearsay

  • (d) Statements That Are Not Hearsay. A statement that meets the following conditions is not hearsay:

    • (2) An Opposing Party’s Statement. The statement is offered against an opposing party and:

      • (E) was made by the party’s coconspirator during and in furtherance of the conspiracy.

  • The statement must be considered but does not by itself establish … the existence of the conspiracy or participation in it under (E).

Advisory Committee Note to FRE 801(d)(2)(E)

  • The rule is consistent with the position of the Supreme Court in denying admissibility to statements made after the objectives of the conspiracy have either failed or been achieved.

Report of the Senate Judiciary Committee

  • A joint venture is considered as a coconspirator for the purposes of this rule even though no conspiracy has been charged.

Bourjaily v. United States, 483 U.S. 171 (1987)


  • Informant working for FBI arranged to sell kilo of cocaine to C. C told informant in taped phone conversation that C had a friend who had questions to ask.

  • Trial court found that C’s statements over phone had been made during course of and in furtherance of conspiracy, satisfying FRE 801(d)(2)(E).

Opinion (Rehnquist, CJ):

  • (1) Whether court must determine by independent evidence that the conspiracy existed and that the defendant and declarant were members of that conspiracy

    • Court declines to decide whether it would be permissible for trial court to rely exclusively on the statement sought to be admitted for evidence on preliminary question.

    • [Later FRE amendment requires extrinsic evidence]

  • (2) the quantum of proof on which such determinations must be based

    • Before admitting co-con’s statement over objection that it does not qualify under FRE 801(d)(2)(E), court must be satisfied the statement actually falls within the definition of the rule. Under FRE 104(a), the court must determine these preliminary questions have been satisfied by a preponderance of evidence supplied by offering party.

      • There must be evidence that there was a conspiracy involving the declarant and the non-offering party, and that the statement was made “during the course and in furtherance of the conspiracy.”

  • (3) whether a court must in each case examine the circumstances of such a statement to determine its reliability.

    • In making a preliminary factual determination under FRE 801(d)(2)(E), trial courts may consider the hearsay statements sought to be admitted, in addition to factual circumstances surrounding the statement providing independent evidence.

    • FRE 104 allows bootstrapping:

      • Using conspiratorial declaration in question itself as evidence of preliminary question of existence of conspiracy, in order to bring the declaration in under conspiracy exception.

Advisory Committee Note to 1997 Amendment to FRE 801(d)(2)

  • FRE 801(d)(2) has been amended to respond to three issues in Bourjaily:

    • Codifies holding in Bourjaily by stating expressly that a court shall consider the contents of a co-con’s statement in determining the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered.

    • Resolves an issue on which the Court had reserved decision by providing that the contents of the declarant’s statement do not alone suffice to establish a conspiracy in which the declarant and the defendant participated.

    • Extends reasoning of Bourjaily to statements offered under subdivisions (C) and (D) of FRE 801(d)(2).

Admissions and the Bruton Rule


  • When two or more defendants are tried together, a prior statement by one of the defendants will be admissible against that defendant, but typically cannot be introduced against the other defendant or defendants without violating both the hearsay rule and the Confrontation Clause.

  • Where evidence is admissible for one purpose but not for another, it is typically handled with a limiting instruction.

  • But the Supreme Court has deemed this procedure unacceptable when the evidence in question is an incriminating statement by a codefendant.

  • Remember that all this stuff about Bruton and Gray are about admissions, not co-conspirator statements.

Bruton v. United states, 391 U.S. 123 (1968)


  • Postal inspector testified that D2 orally confessed that D2 and D1 committed robbery.

  • Trial judge gave [robust] jury instruction that D2’s confession was competent evidence against D2 but was inadmissible hearsay against D1 and therefore had to be disregarded in determining D1’s guilt or innocence.

Opinion (Brennan, J):

  • Because of the substantial risk that, despite instructions to contrary, jury looked to the incriminating extrajudicial statements in determining D1’s guilt, admission of D2’s confession in this joint trial violated D1’s right of cross-examination secured by the Confrontation Clause.

  • Despite the clear instruction to the jury to disregard D2’s inadmissible hearsay evidence inculpating D1, in the context of a joint trial, we cannot accept limiting instructions as an adequate substitute for petitioner’s constitutional right of cross-exam.

Gray v. Maryland, 523 U.S. 185 (1998)

  • The upshot of this case is when a Bruton issue arises, you have to redact it so it’s not incriminating on its face, or else sever the trial. The necessary redactions will vary on a case-by-case basis.


  • Trial judge, after denying D2’s motion for separate trial, permitted P to introduce D1’s confession into evidence at trial, but ordered the confession redacted.

  • Consequently, police detective who read the confession into evidence said the word “deleted” whenever D2 or D3’s name appeared.

  • TJ instructed the confession was evidence only against D1 and should not be used against D2. Opinion (Breyer, J):

  • Richardson v. Marsh, 481 U.S. 200 (1987) limited Bruton’s scope.

    • Richardson was a case where State redacted confession of one defendant so as to omit all reference to his codefendant. As redacted, confession indicated defendant discussed murder with a third person in a car.

    • Court distinguished Burton confession as “incriminating on its face and expressly implicating codefendant,” whereas Richardson confession “amounted to evidence requiring linkage and became incriminating in respect to codefendant only when linked with evidence introduced later at trial.”

    • Richardson court held “the Confrontation Clause is not violated by the admission of a nontestifying codefendant’s confession with a proper limiting instruction when, as here, the confession is redacted to eliminate not only the defendant’s name, but any reference to his or her existence.”

  • Unlike Richardson’s redacted confession, the confession here refers directly to the existence of the nonconfessing defendant, replacing his name with a symbol—the word “deleted” or a blank space set off by commas.

    • Court now holds a redaction replacing a defendant’s name with an obvious indication of deletion still falls within Bruton’s protective rule.

  • Bruton, as interpreted by Richardson, holds that “powerfully incriminating extrajudicial statements of a codefendant—those naming another defendant—considered as a class, are so prejudicial that limiting instructions cannot work.”

Spontaneous and Contemporaneous Statements

FRE 803. Exceptions to the Rule Against Hearsay—Regardless of Whether the Declarant Is Available as a Witness

  • The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:

    • (1)Present Sense Impression.A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.

    • (2)Excited Utterance.A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.

Advisory Committee Note to FRE 803.

  • FRE 804 requirement of firsthand knowledge still applies.

  • FRE 803(1)-(2) will overlap. The most significant practical difference lies in time lapse.

  • Time element:

    • 803(1) slight lapse is allowable

    • 803(2) standard of measurement is duration of state of excitement

      • You can have an excited utterance when a person has calmed down, but then is reminded of the startling event and gets excited again

  • Whether proof of the startling event may be made by the statement itself is mostly an academic question, since in most cases there is present at least some circumstantial evidence that something of a startling nature has occurred.

    • When the declarant is an unidentified bystander, courts are hesitant in upholding the statement alone as sufficient

  • Subject matter:

    • 803(1) must be description or explanation of event or condition

    • 803(2) need only “relate” to the startling event or condition

United States v. Obayagbona, 627 F. Supp. 329 (E.D.N.Y. 1985)


  • FBI was wearing wire and contemporaneously with arrest said “The girl in the black and white handed it to me out of her purse.” According to stipulation, 14 minutes and 25 seconds elapsed between receipt of sample and statement.

Opinion (Weinstein, CJ):

  • When statement is offered as an excited utterance, trial court must find two conditions:

    • First, there must be an occurrence or event sufficiently startling to render inoperative the normal reflective though processes of an observer.

    • Second, the statement of the declarant must have been a spontaneous reaction to the occurrence or event and not the result of reflective thought.

    • Under FRE 104(a), trial court makes determination as to the existence of excitement and the applicability of this exception.

      • Determination of the excitement is facilitated [in part] by the recording. The fact the excited witness was a cop does not preclude admissibility

  • Present sense impression is not excluded by hearsay rule under FRE 803(1).

    • FRE 803(1) provides that “immediately thereafter” must be close enough to allow an inference of spontaneity.

      • Advisory Committee recognized “precise contemporaneity” is often impossible. A few minutes pause after the moment at which the statement could have been made is within the period contemplated in FRE 803(1).

    • Where a precisely contemporaneous declaration cannot be made, near contemporaneity fulfills the requirements of FRE 803(1).

Bemis v. Edwards, 45 F.3d 1369 (9th Cir. 1995)


  • Excluded from evidence portions of a tape recording of a 911 call made by W, in front of whose house P had been arrested.

    • In the tape, W reports “Now there’s a cop beating the shit out of the guy.”

Opinion (Nelson, J):

  • Statements made in 911 emergency call can qualify as either present sense impression or excited utterance, especially statements by 911 caller witnessing violent arrest of suspect by police.

    • To qualify under either exception, an out-of-court statement must be nearly contemporaneous with the incident described and made with little chance for reflection.

  • But W’s statements do not satisfy the further requirements of personal knowledge of the events required, under FRE 602.

    • W seemed to be relaying statements made by people outside the house. Unlike admissions, hearsay exceptions require personal knowledge.

    • As proponent of the evidence D had burden of establishing personal perception by a preponderance of the evidence.

      • If they had proved the initial observer had personal knowledge, the evidence would have been admissible because each level of hearsay would be admissible.

United States v. Elem, 845 F.2d 170 (8th Cir. 1988)


  • In response to cop’s question whether the gun was his, D said “No.”

  • D contends statements were admissible as part of the res gestae or as excited utterances under FRE 803(2).

Opinion (McMillian, J):

  • Res gestae embraces two separate and distinct categories of verbal statements, one of which is truly an exception to the hearsay rule and the other of which is not.

    • Speech act: utterance of certain words constitutes or is part of the details of the act, occurrence or transaction which in itself is relevant and provable

    • Spontaneous exclamation: admissible as a genuine exception to the hearsay rule; may or may not be exactly contemporaneous with the provable act or event.

  • Here, court finds nothing in record to support D’s contention he was unduly excited so as to alter any of his conscious reflections.

Lilly, An Introduction to the Law of Evidence

  • Res gestae

    • Verbal act: not hearsay, therefore no exception need apply

    • Excited utterance: hearsay, excepted under FRE 803(1)

  • “If you wish to tender inadmissible evidence, say it is part of the res gestae.” – Lord Blackburn

State of Mind

FRE 803. Exceptions to the Rule Against Hearsay—Regardless of Whether the Declarant Is Available as a Witness

  • The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:

    • (3) Then-Existing Mental, Emotional or Physical Condition. A statement of the declarant’s then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant’s will.


  • When an out-of-court statement is used as circumstantial proof of the declarant’s state of mind, the hearsay rule is not implicated because the statement is not offered to prove the truth of what it asserts.

United States v. Harris, 733 F.2d 994 (2d Cir. 1984)


  • D1 attempted to establish D1 knew R was informant and only played along out of fear of what would happen otherwise: D1 offered testimony of two people that D1 expressed to third parties that the government and other were trying to set him up

Opinion (Pratt, J):

  • Taking D1’s offers of proof at face value, as the court must on the record, the district judge erred in excluding the proffered testimony as hearsay under FRE 801(c).

    • The statements were admissible not for their truth but as circumstantial evidence of D1’s state of mind.

    • If D1 had told third parties “that he believed D2 brought an agent to him,” that would indeed be hearsay under FRE 801(c).

The Hillmon Doctrine

Mutual Life Ins. Co. v. Hillmon, 145 U.S. 285 (1892)

  • The Supreme Court extended the state-of-mind exception to statements of intent offered to prove that the declarants actually did what they said they would.


  • In the letter to W-S, W stated “I expect to leave for Colorado with H.”

Opinion (Gray, J):

  • Letters were not competent evidence as memoranda made in the ordinary course of business.

  • Letters should have been admitted as state-of-mind evidence.

    • The existence of a particular intention in a certain person at a certain time being a material fact to be proved, evidence that he expressed that intention at that time is as direct evidence of the fact as would be his own testimony.

      • The letters in question were not competent as narratives of facts communicated to the writer by others, nor as proof he actually went away from Wichita.

      • They were competent as evidence that, shortly before the time when other evidence tended to show he went away, he had the intention of going and going with H, which made both facts more probable than if he had no such intention.

  • Wherever the bodily or mental feelings of an individual are material to be proved, the usual expressions of such feelings are original and competent evidence.

    • Such declarations are regarded as verbal acts, and are as competent as any other testimony, when relevant to the issue.

    • Their truth or falsity is an inquiry for the jury.

Shepard v. United States, 290 U.S. 96 (1933)


  • Witnesses for D testified to declaration made by V which suggested a mind bent on suicide.

  • P argued this opened the door to rebuttal by the evidence that V said “D has poisoned me.” That evidence, P argued, was admissible not as evidence of the truth but as suggesting a state of mind inconsistent with suicidal intent.

Opinion (Cardozo, J):

  • The testimony was neither offered nor received for the strained and narrow purpose P now suggests as legitimate. The accusatory declaration must have been rejected as evidence of a state of mind, even if it was limited to this purpose.

    • By suggesting suicide, D indeed opened the door for rebuttal by evidence suggesting a will to live; but this is not what P put into evidence. P did not use V’s declaration to prove her present thoughts and feelings, or even her thoughts and feelings in times past.

    • P used the evidence as proof of an act committed by someone else, as evidence that she was dying of poison given by D. P was not free to prove this fact by hearsay declarations.

  • There are times when a state of mind, if relevant, may be proved by contemporaneous declarations of feeling or intent.

    • In proceedings for the probate of a will, where the issue is undue influence, declarations of a testator are competent to prove his feelings for his relatives, but are incompetent as evidence of his conduct or of theirs.

    • In suits for the alienation of affections, letters passing between spouses are admissible in aid of a like purpose.

    • In damage suits for personal injuries, declarations by the patient to bystanders or physicians are evidence of sufferings or symptoms, but are not received to prove the acts, the external circumstances, through which the injuries came about.

  • Hillmon: In suits upon insurance policies, declarations by an insured that he intends to go upon a journey with another may be evidence of a state of mind lending probability to the conclusion that the purpose was fulfilled.

    • That case marks the high-water line beyond which courts have been unwilling to go. Declarations of intention, casting light upon the future, have been sharply distinguished from declarations of memory, pointing backwards to the past.

  • The testimony now questioned faced backward and not forward, at least in its most obvious implications; more importantly, it spoke to a past act by someone other than the speaker.

United States v. Houlihan, 871 F. Supp. 1495 (D. Mass. 1994)


  • V was found dead from a gunshot. As V was leaving his sister’s apartment the previous evening, V allegedly told his sister that he was going out “to meet D.”

  • P sought to admit statement of V to sister as relevant circumstantial evidence that it was D who killed him later that evening.

    • P argued the statement is admissible because it constitutes a statement of a then-existing mental or emotional condition under FRE 803(3).

  • Over objection, the court admitted the statement and allowed sister to testify.

Opinion (Young, J):

  • Language of FRE 803(3) clearly says statements of intent are admissible. Because it does not by its terms limit the class of persons against whom such statements of intent may be admitted, the court here rules that FRE 803(3) codifies Hillmon as written, and does not disturb its conclusion or reasoning.

  • Under Hillmon, out-of-court statements of a declarant are admissible to prove the subsequent conduct of others.

    • In Hillmon, an insurance company sought to introduce out-of-court statements by a declarant, Walters, that he intended to travel with the insured, Hillmon. The hearsay statement was used as the principal proof that Hillmon actually traveled with Walters.

  • Courts are divided on the application: some require corroborating evidence before admission against nondeclarant, while others do not.

Injury Reports


  • FRE expands the exception to cover many statements made to physicians hired not for treatment but simply for diagnosis with an eye to litigation.

FRE 803. Exceptions to the Rule Against Hearsay—Regardless of Whether the Declarant Is Available as a Witness

  • The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:

    • (4) Statement Made for Medical Diagnosis or Treatment. A statement that:

      • (A) is made for—and is reasonably pertinent to—medical diagnosis or treatment; and

      • (B) describes medical history; part or present symptoms or sensations; their inception; or their general cause.

Advisory Committee Note to FRE 803(4)

  • The rule extends to statements as to causation, reasonably pertinent to purposes of diagnosis and treatment.

    • Statements as to fault would not ordinarily qualify under “causation” language.

      • Thus, patient’s statement he was struck by a car would qualify, but not a statement the car ran a red light.

  • Statements need not be made to a physician.

Rock v. Huffco Gas & Oil Co., 922 F.2d 272 (5th Cir. 1991)


  • P’s husband (P-H) was working on D’s offshore oil platform when he suffered two accidents.

    • P-H claimed his foot fell through a rusted step, causing him to sprain his ankle, with no witnesses present. Doctors reported P-H had a sprain.

    • As part of exam, P-H provided doctor with history of injury, including that it occurred on D’s property.

Opinion (Thornberry, J):

  • Before admitting such hearsay statements, court should determine whether the statements were reasonable considered by the declarant as being pertinent to the diagnosis or treatment sought.

  • P argued the doctors considered cause of injury pertinent to diagnosis, but deposition transcripts do not bear this out.

    • Doctors stated they only needed to know that P-H twisted his ankle; they did not need to know additional detail of how it happened.

Recorded Recollection


  • The doctrine of “past recollection recorded” allows the record, in certain cases, to be introduced into evidence to prove the truth of what it asserts, notwithstanding the hearsay rule.

    • Statements that fall within the “recorded recollection” exception are admissible as evidence, not only to refresh witness’s memory.

    • Limitation on this exception, preserved in the FRE and most state analogs, allows the statement to be read to the jury but prohibits the jury from actually looking at it.

  • “Present recollection revived/refreshed” is not a technique for introducing a document or having it read to the jury, but for jogging the memory of a forgetful witness.

    • Conventional practice allows anything to be used to revive the recollection of a forgetful witness, as long as it is first shown to the opposing counsel—and subject to the judge’s general authority to regulate trial procedures in the interests of fairness and efficiency.

FRE 612. Writing Used to Refresh a Witness’s Memory

  • (a) Scope. This rule gives an adverse party certain options when a witness uses a writing to refresh memory:

    • (1) while testifying; or

    • (2) before testifying, if the court decides that justice requires the party to have those options.

  • (b) Adverse Party's Options; Deleting Unrelated Matter. Unless 18 U.S.C. § 3500 provides otherwise in a criminal case, an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness about it, and to introduce in evidence any portion that relates to the witness's testimony. If the producing party claims that the writing includes unrelated matter, the court must examine the writing in camera, delete any unrelated portion, and order that the rest be delivered to the adverse party. Any portion deleted over objection must be preserved for the record.

  • (c) Failure to Produce or Deliver the Writing. If a writing is not produced or is not delivered as ordered, the court may issue any appropriate order. But if the prosecution does not comply in a criminal case, the court must strike the witness's testimony or—f justice so requires—declare a mistrial.

FRE 803. Exceptions to the Rule Against Hearsay—Regardless of Whether the Declarant Is Available as a Witness

  • The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:

    • (5) Recorded Recollection. A record that:

      • (A) is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately;

      • (B) was made or adopted by the witness when the matter was fresh in the witness’s memory; and

      • (C) accurately reflects the witness’s knowledge.

    • If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party.

Advisory Committee Note to FRE 803(5)

  • Owing to the risk of otherwise encouraging use of statements carefully prepared for litigation, the rule includes a requirement that witnesses not have sufficient recollection to enable him to testify fully and accurately.

  • No attempt is made in the exception to spell out the method of establishing the initial knowledge or contemporaneity and accuracy of the record, leaving them to be dealt with on a case-by-case basis.

Fisher v. Swartz, 130 N.E.2d 575 (Mass. 1955)


  • P testified he furnished goods in repairing house owned by D. While testifying, P “refreshed his recollection” from carbon copy of itemized statement of charges made for labor and materials.

Opinion (Spalding, J):

  • Two ways a writing may be used: to revive or stimulate present recollection or, having no present recollection even with the aid of the writing, he may use it merely as a record of his past knowledge.

    • Present recollection revived: although witness may use writing to refresh his recollection

    • Past recollection recorded: judge in his discretion may permit a witness to incorporate in his testimony a writing expressive of his past knowledge and to read it and even show it to the jury.

  • Here, it may be fairly inferred the writing was a record of witness past recollection.

  • But the issue here is not that the witness incorporated the writing into testimony. Rather, the trial judge went further and admitted the writing as independent evidence.

    • The court now holds the writing ought to be admissible as independent evidence (i.e., it can be shown, not only read to jury). [This applies to Mass.R.E, not to FRE.]

United States v. Riccardi, 174 F.2d 883 (3d Cir. 1949)


  • D convicted of illegally transporting chattels from some lady’s home. To prove specific chattels involved, P relied on testimony of W. To prove value, P relied on testimony of expert (E).

    • P sought to have W testify using the typewritten notes for the purpose of refreshing recollection. W was permitted to read the lists aloud.

Opinion (Kalonder, J):

  • Primary difference between present recollection revived and past recollection recorded is the ability of the witness to testify from present knowledge:

    • Where the witness’ memory is revived, and he presently recollects the facts and swears to them, he is in a different position from the witness who cannot directly state the facts from present memory and who must ask the court to accept the writing for the truth of its contents because he is willing to swear, for one reason or another, that its contents are true.

    • In past recollection recorded, witness has no present recollection of the matter contained in the writing. Whether the record is directly admitted into evidence, or indirectly by the permissive parroting of the witness, it is nevertheless a substitute for memory and is offered for the truth of its contents.

      • It is an independent probative force, and is therefore ordinarily required to meet certain standards.

  • In this case, the judge determined both W and E testified from present recollection. On the record, we cannot say it is not so.

    • Even if in error, it would have been a harmless error since the same results could have achieved be other means.

Business Records

FRE 803. Exceptions to the Rule Against Hearsay—Regardless of Whether the Declarant Is Available as a Witness

  • The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:

    • (6) Records of a Regularly Conducted Activity. A record of an act, event, condition, opinion, or diagnosis if:

      • (A) the record was made at or near the time by—or from information transmitted by—someone with knowledge;

      • (B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit;

      • (C) making the record was a regular practice of that activity;

      • (D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and

      • (E) the opponent does not show that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness.

    • (7) Absence of a Record of a Regularly Conducted Activity. Evidence that a matter is not included in a record described in paragraph (6) if:

      • (A) the evidence is admitted to prove that the matter did not occur or exist;

      • (B) a record was regularly kept for a matter of that kind; and

      • (C) the opponent does not show that the possible source of the information or other circumstances indicate a lack of trustworthiness.

Advisory Committee notes to FRE 803(6)

  • Element of unusual reliability of business records is said to derive from systematic checking, regularity and continuity producing habits of precision, actual experiences of businesses in relying on them, or duty to make accurate record as part of continuing occupation.

State v. Acquisto, 463 A.2d 122 (R.I. 1983)


  • P introduced PW, who was employed at B2 handling payroll records for B. W testified to receiving payroll vouchers signed by DW.

    • Vouchers offered into evidence and tended to show DW worked at time of incident, and strike happened week prior.

Opinion (Weisberger):

  • Common-law requirements for admissibility of business records:

    • Record maker and each human link in chain of information, living and competent, must testify that:

      • entry was made in regular course of business

      • in his handwriting or under immediate supervision

    • And each provider of information contained in report had to testify.

    • If any necessary witness was absent, other witnesses had to identify the record and explain how and by whom it was kept.

  • Court adopts FRE 803(6) standards over common law. Under FRE 803(6), foundation for introduction of evidence was adequate.

Qualifying “Businesses”

Report of the House Judiciary Committee (1973)

  • Record must be made in course of a “business” activity

  • Making of records must be regular practice of such a business

Report of the Conference Committee (1974)

  • Includes records of institutions and associations like schools, churches and hospitals.

    • Public schools and hospitals are also covered by FRE 803(8), which deals with public records and reports.

Keogh v. Commissioner of Internal Revenue, 713 F.2d 496 (9th Cir. 1983)


  • P calculated D’s tip income based on entries in highly detailed financial diary kept by Coworker.

    • Lower court admitted photocopy of diary and testimony of Coworker’s ex-wife; Coworker did not appear.

Opinion (Duniway):

  • Diary was hearsay.

    • Offered for proof of its contents: the amount of tip income.

  • Diary is admissible under FRE 803(6).

    • Personal records kept for business reasons may qualify.

    • Reliability usually found in records kept by businesses may be established in personal business records if they are systematically checked and regularly and continually maintained.

    • No evidence Coworker’s motives for making entries were suspect.

    • Testimony of Coworker as custodian of diary was not required, because court has no reason to believe Coworker did not rely on diary.

United States v. Gibson, 711 F.2d 871 (9th Cir. 1982)


  • Lower court admitted P’s introduction ledger of cooperating prosecution witness.

    • Ledger contained records of drug transactions implicating D.

Opinion (Alarcon):

  • Ledger satisfies FRE 803(6).

    • Record was kept in “regular course” of business activity.

      • W testified she kept record of most large transactions.

      • Transactions were recorded contemporaneously and W relied on them.

    • Ledger’s incompleteness did not render it inadmissible.

      • Accuracy of remaining pages was not altered simply because W did not record every sale.

    • Entries made out of sequence did not destroy their accuracy.

      • Entries made at or near time of events described and satisfied regularity requirement, so sequence is irrelevant.

    • Records were not otherwise untrustworthy, since W had to rely on them and would have little reason to falsify them.

Palmer v. Hoffman, 318 U.S. 109 (1943)


  • Now-deceased train engineer made statement at freight office of D where he was interviewed by company and government representatives.

    • D offered statement in evidence, and offered to prove statement was signed in regular course of business, it being the regular course of business to make such a statement.

Opinion (Douglas):

  • Statement was properly excluded.

    • Fact a company makes a habit out of recording its employee’s versions of their accidents does not put those statements in the regular course of business.

    • Reports are not for the systematic conduct of the enterprise as a railroad business.

      • Unlike payrolls and financial records, these reports are calculated for use essentially in the court, not in the business. Their primary utility is in litigating, not railroading.

Lewis v. Baker, 526 F.2d 470 (2d Cir. 1975)


  • After train accident, D offered into evidence a “personal injury report” and “inspection report.”

  • P argues Palmer v. Hoffman, 318 U.S. 109 (1943) precludes admission of reports.

    • In Palmer, preparer of report had been personally involved in accident and likely knew at the time of making it he would be charged with wrongdoing in a lawsuit, so would be affected by desire to exculpate himself and employer.

Opinion (Waterman):

  • Unlike Palmer, here there was no similar motivation on the part of the preparers of the report, since none of them were involved in the accident or likely to be targeted by lawsuit.

    • In the absence of a motive to fabricate, the holding in Palmer is not controlling over the hearsay exception.

  • The court must look to other indicia of reliability. Sufficient indicia of reliability here.

    • Reports were used for required submissions to government.

      • A court should not say regular making of reports required by law is not in the regular course of business.

    • Reports were of utility to employer in ascertaining whether equipment was defective.

Advisory Committee Note to FRE 803(6)

  • Rule includes both diagnoses and opinions, in addition to acts, events and conditions, as proper subjects of admissible entries.

  • Rule does not require involvement as a participant in the matters reported. Wholly acceptable reports may involve matters merely observed, such as the weather.

  • “Record” is described as “memorandum, report, record or data compilation in any form.”

    • Data compilation includes but is not limited to electronic computer storage.

Sources of Information

Advisory Committee Note to FRE 803(6)

  • Rule requires informant with knowledge acting in course of regularly conducted activity.

  • If the supplier of the information does not act in the regular course, the assurance of accuracy does not extend to the information itself and the fact it may be recorded scrupulously is of no avail.

    • E.g.: police report incorporating information obtained from bystander. Cop is acting in regular course but informant is not.

Wilson v. Zapata Off-Shore Co., 939 F.2d 260 (5th Cir. 1991)


  • TC admitted portions of hospital records reporting statement made by P’s sister to social worker, who recorded that “informant reports patient is a habitual liar and has been all her life.”

Opinion (Garwood):

  • Hospital record is double hearsay. Double hearsay in context of business record exists when record is prepared by an employee with information supplied by another person.

  • First level of hearsay is admissible under FRE 803(6).

  • Second level may have fallen under FRE 803(4): statements made for purpose of medical diagnosis or treatment.

    • Sister’s statements could be appropriate and helpful background information for psychiatrists to consider diagnosis and treatment of P’s complaints, though value of statements would appear somewhat compromised by total generality and conclusory nature.

  • Court here does not decide whether admission was an error. Even if it were, the error was harmless.

Absence of Record

Advisory Committee Note to FRE 803(7)

  • Failure of a record to mention a matter which would ordinarily be mentioned is satisfactory evidence of its nonexistence.

United States v. Gentry, 925 F.2d 186 (7th Cir. 1991)


  • D was convicted of making false report of food tampering after claiming to have bitten a metal pin in a package of M&M candy.

Opinion (Easterbrook):

  • Testimony of employee of manufacturer that there were no other reports of pins in M&M candy was admissible under FRE 803(7).

    • Testimony was relevant because it implied the pin came from D rather than factory.

    • FRE 803(7) allows this use of business records to show nonoccurrence of an event.

Public Records


  • FRE 803(8) is narrower than the business records exception of FRE 803(6).

  • Courts have struggled with wording of FRE 803(8), and with records that fail to satisfy public records exception requirements but fall within another exception, especially the business records rule.

    • [Normally when evidence isn’t admissible under one exception, you can try to get it into another exception. But with public records, if it doesn’t come in under the public records, you can’t go to business records and say “hey the police department is a business.” The requirements carry over.]

  • In criminal cases, remember Confrontation Clause.

FRE 803. Exceptions to the Rule Against Hearsay—Regardless of Whether the Declarant Is Available as a Witness

  • The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:

    • (8) Public Records. A record or statement of a public office if:

      • (A) it sets out:

        • (i) the office's activities;

        • (ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel; or

        • (iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and

      • (B) the opponent does not show that the source of information or other circumstances indicate a lack of trustworthiness.

    • (9) Public Records of Vital Statistics. A record of a birth, death, or marriage, if reported to a public office in accordance with a legal duty.

    • (10) Absence of a Public Record. Testimony—or a certification under Rule 902—that a diligent search failed to disclose a public record or statement if:

      • (A) the testimony or certification is admitted to prove that

        • (i) the record or statement does not exist; or

        • (ii) a matter did not occur or exist, if a public office regularly kept a record or statement for a matter of that kind; and

      • (B) in a criminal case, a prosecutor who intends to offer a certification provides written notice of that intent at least 14 days before trial, and the defendant does not object in writing within 7 days of receiving the notice—unless the court sets a different time for the notice or the objection.

Advisory Committee Note to FRE 803(8)

  • Three types:

    • Records of office’s or agency’s own activities

    • Records of matters observed

    • Evaluative reports

      • More controversial. Many are admissible under statutory exceptions.

  • Factors of contributing to admissibility of evaluative reports:

    • Timeliness of the investigation

    • Special skill or experience of the official

    • Whether a hearing was held and the level at which conducted

    • Possible motivation problems suggested by Palmer v. Hoffman.

  • Evaluative reports are admissible only in civil cases and against the government in criminal cases.

    • Almost certain collision with confrontation rights when used against accused in criminal case.

Beech Aircraft Corp. v. Rainey, 488 U.S. 153 (1988)

Opinion (Brennan):

  • Addresses whether FRE 803(8)(C), which provides exception to hearsay rule for public investigatory reports containing “Factual findings” extends to conclusions and opinions contained in such reports.

    • Holds portions of investigatory reports otherwise admissible under FRE 803(8)(C) are not inadmissible merely because they state a conclusion or opinion.

    • As long as the conclusion (regardless of what it is called in the report) is based on a factual investigation and satisfies the Rule’s trustworthiness requirement, it should be admissible along with other portions of the report.

  • Here, Court sides with broader interpretation of FRE 803(8)(C) of Baker v. Elcona Homes Corp.:

    • Factual findings admissible under FRE 803(8)(C) may be those which are made by the prepared of the report from disputed evidence.

    • In Baker, court held admissible officer’s conclusion on basis of investigation at scene of accident that “apparently, unit #2 entered the intersection at a red light.”

Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009)


  • Appeal from conviction for drug possession. State court admitted into evidence affidavits reporting results of forensic analysis showing material seized by police and connected to defendants was cocaine.

    • “Certificates of analysis” stated “Substance contained: cocaine.” Certificates were sworn by notary public by analysts, as required under Massachusetts law.

Opinion (Scalia):

  • Documents at issue in this case fall within the “core class of testimonial statements” category of Crawford.

    • Despite being termed “certificates,” they are plainly affidavits: declarations of facts written down and sworn to by the declarant before an officer authorized to administer oaths.

    • They are functionally identical to live, in-court testimony, doing precisely what a witness does on direct examination.

    • They were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.

  • The documents were affidavits, so the analysts were witnesses for the purposes of the Sixth Amendment.

    • The Confrontation Clause is a procedural guarantee, not concerned with particularized guarantees of trustworthiness.

    • Confrontation clause applies to any witnesses against D, not merely “accusatory ones.”

    • Absent a showing the analysts were unavailable to testify at trial and that D had prior opportunity to cross-examine them, D was entitled to be confronted with the analysts at trial.

  • P argues the affidavits are admissible as akin to official and business records.

    • Affidavits do not qualify as traditional official or business records at common law, and even if they did would still be subject to confrontation.

    • FRE 803(6) ordinarily allows admission of documents kept in the regular course of business despite their hearsay status, but this is not the case if the regularly conducted business activity is the production of evidence for use at trial.

Bullcoming v. New Mexico, 564 U.S. ____ (2011)


  • D was arrested for DWI. Principle evidence was lab report certifying D’s blood alcohol level.

  • Rather than calling as a witness the analyst who signed the certification, P called another analyst who was familiar with the procedures but had neither participated nor observed the test.

Opinion (Ginsburg):

  • Surrogate testimony does not satisfy the Confrontation Clause.

  • The analyst’s certification reported more than a simply a machine-generated number, and such representations call for cross-examination.

    • Certified he received sample with seal intact; made sure it was the correct sample; adhered to precise protocol; no circumstance or condition affecting integrity of sample or analysis.

Concurring (Sotomayor):

  • This case is not one in which P suggested an alternate purpose, much less an alternate primary purpose for the report.

  • Not a case in which the person testifying is a supervisor, reviewer, or someone else with a personal but limited connection to the test at issue.

  • Not a case in which an expert witness was asked for his independent opinion about the underlying testimonial reports that were not themselves admitted into evidence (see FRE 703).

  • Not a case in which state introduced only machine-generated results, such as a readout of the gas chromatograph.

Former Testimony


  • Breadth of exception for former testimony depends on whether the proceeding in which it is invoked is criminal or civil. What matters is the nature of the second proceeding, not the one in which declarant originally testified.

  • May be invoked in criminal case only if criminal defendant was a party to the earlier proceeding, and had opportunity and similar motive to cross examine now-unavailable declarant.

  • Even if rules did not impose this restriction, the Confrontation Clause would.

FRE 804. Exceptions to the Rule Against Hearsay—When the Declarant Is Unavailable as a Witness

  • (a) Criteria for Being Unavailable. A declarant is considered to be unavailable as a witness if the declarant:

    • (1) is exempted from testifying about the subject matter of the declarant's statement because the court rules that a privilege applies;

    • (2) refuses to testify about the subject matter despite a court order to do so;

    • (3) testifies to not remembering the subject matter;

    • (4) cannot be present or testify at the trial or hearing because of death or a then-existing infirmity, physical illness, or mental illness; or

    • (5) is absent from the trial or hearing and the statement's proponent has not been able, by process or other reasonable means, to procure:

      • (A) the declarant's attendance, in the case of a hearsay exception under Rule 804(b)(1) or (6); or

      • (B) the declarant's attendance or testimony, in the case of a hearsay exception under Rule 804(b)(2), (3), or (4).

        But this subdivision (a) does not apply if the statement's proponent procured or wrongfully caused the declarant's unavailability as a witness in order to prevent the declarant from attending or testifying.

  • (b) The Exceptions. The following are not excluded by the rule against hearsay if the declarant is unavailable as a witness:

    • (1) Former Testimony. Testimony that:

      • (A) was given as a witness at a trial, hearing, or lawful deposition, whether given during the current proceeding or a different one; and

      • (B) is now offered against a party who had—or, in a civil case, whose predecessor in interest had—an opportunity and similar motive to develop it by direct, cross-, or redirect examination.

Advisory Committee Note to FRE 804

  • Common law required identity of issues. Modern decisions reduce requirement to “substantial identity.”

  • Common law required identity of parties, allowing only successors in narrowly construed privity. Modern decisions eliminate this requirement except as it might affect motive to develop the testimony.

Park et al., Evidence Law

  • Typical instance of former testimony exception arises when case is reversed and remanded for new trial.

  • When testimony is offered in form of transcript, two levels of hearsay:

    • (1) transcript is statement of court reporter, excepted as public record.

    • (2) witness’ testimony at prior trial is also hearsay, excepted as former testimony.

  • Former testimony often comes into evidence through exceptions besides this one:

    • Impeach a witness with a prior inconsistent statement under FRE 801(d)(1)(A)

    • Former testimony of opposing party is admissible against party under FRE 801(d)(2) without need to lay foundation required by exception for former testimony.

United States v. Bollin, 264 F.3d 391 (4th Cir. 2001)


  • Allowed P to present redacted version of D’s grand jury testimony but refused to allow him to present omitted portions under the rule of completeness or the former testimony exception.

Opinion (Holcomb Hall):

  • Grand jury statements are made out of court, so they are hearsay when introduced to prove their subject matter. They are admissible by the prosecution under FRE 801(d)(2) as an opposing party statement.

  • FRE 804(b)(1) provides exception for former testimony of declarant where declarant is unavailable as a witness.

    • Declarant is unavailable when declarant is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant’s statement.

  • But FRE 804(a) provides a declarant is not unavailable as a witness if exemption is due to procurement of proponent of statement for purposes of preventing witness from testifying.

    • Here, D made himself unavailable for purpose of preventing testimony by invoking Fifth Amendment privilege against self-incrimination, and therefore cannot invoke exception in FRE 804(b)(1).

  • Rule of completeness does not apply because the omitted testimony was not necessary to avoid misleading the jury or otherwise place the admitted testimony in context.

Kirk v. Raymark Industries, Inc., 61 F.3d 147 (3d Cir. 1995)


  • P was allowed to read to the jury the prior trial testimony of Expert2 from an unrelated previous trial. Expert2 had been expert witness for D and testified it was possible that D’s product caused mesothelioma.

Opinion (Cowen):

  • FRE 801(d)(2)(C) authorized admission does not apply.

    • Expert witness is charged with duty of giving his own expert opinion, and is not an agent of the party who called him.

  • FRE 804(b)(1) requires proponent of the statement offered under that exception to prove the unavailability of the declarant.

    • The record does not indicate P employed any reasonable means to procure the services of Expert2.

    • Expert2 was resident of a different state and beyond the ability of P to subpoena. But P made not independent attempt to contact Expert2, offer him his usual expert witness fee, and request his attendance at trial.

Clay v. John-Mansville Sales Corp., 722 F.2d 1289 (6th Cir. 1984)


  • Excluded deposition of witness from a different case and between different parties. W had worked at D for many years as the only full-time physician of D, and so his deposition was peculiarly relevant. W had died at the time of this trial.

Opinion (Clifton Edwards):

  • FRE 804(b)(1) allows testimony of unavailable declarant given in another proceeding if the party against whom the evidence is now offered, or that party’s predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.

  • Predecessor in interest is broadly construed.

    • Lloyd v. American Export Lines, Inc.: if it appears that in the former suit a party having a like motive to cross-examine about the same matters as the present party would have, was accorded an adequate opportunity for such examination, the testimony may be received against the present party.

  • Here, defendants in the previous case had a similar motive in confronting W’s testimony, both in terms of appropriate objections and searching cross-examination, to that which D has in the current litigation.

United States v. Salerno, 505 U.S. 317 (1992)


  • D requested trial court to admit transcripts of grand jury testimony by W who invoked Fifth Amendment, but trial court refused. Trial court held that government did not have a similar motive in questioning a W in investigatory stages (grand jury) as does prosecutor does in conducting trial.

  • CoA said government’s motive was irrelevant, and adversarial fairness requires the similar motive element of FRE 804(b)(1) evaporates when the government obtains immunized testimony in grand jury proceeding from witness who refuses to testify at trial.

Opinion (Thomas):

  • Similar motive is indeed required under FRE 804(b)(1).

    • Parties may forfeit a privilege by exposing privileged evidence, but do not forfeit one merely by taking a position the evidence might contradict.

    • A litigant cannot give the jury his version of a privileged communication then prevent the cross-examiner from utilizing the communication itself to get at the truth.

      • But here P never presented to the jury any version of what W said in the grand jury proceedings. Instead, it used other evidence.

  • Question remains whether the US had a similar motive in this case.

    • Since district court rules no similar motive was required, it did not fully consider the issue and the Court will not do so in the first instance here.

Dying Declarations

FRE 804. Exceptions to the Rule Against Hearsay—When the Declarant Is Unavailable as a Witness

  • (b) The Exceptions. The following are not excluded by the rule against hearsay if the declarant is unavailable as a witness:

    • (2) Statement Under the Belief of Imminent Death. In a prosecution for homicide or in a civil case, a statement that the declarant, while believing the declarant's death to be imminent, made about its cause or circumstances.

Shepard v. United States, 290 U.S. 96 (1933)


  • Wife had been poisoned by husband and told nurse “My husband poisoned me.”

Opinion (Cardozo):

  • To made out a dying declaration, the declarant must have spoken without hope of recovery and in the shadow of impending death.

    • Thinking one is going to die, saying one is going to die, fearing or believing one is going to die are not sufficient: they are not inconsistent with hope.

    • Despair of recovery may be gathered from the circumstances if the facts support the evidence, but what is decisive is the state of mind.

    • Declaration can be conclusory: “he murdered me” without stating method.

  • The declarant had no warning that her words would be repeated and accepted as a dying declaration, so her mind never focused on the solemnity and responsibility of this fact.

  • For the declaration to be admissible, it must be possible to infer there was knowledge or the opportunity for knowledge as to the facts declared.

    • The statement is excluded if it is merely a conjecture or suspicion, rather than facts.

United States v. Sacasas, 381 F.2d 451 (2d Cir. 1967)


  • According to Witness, Declarant, who had been indicted with Defendant and died before trial, told Witness ten minutes before death that “If anything happens to me tell them that Defendant had nothing to do with the job.”

Opinion (Waterman):

  • The evidence is not admissible: Declarant was not dying following a homicidal attack, and neither Declarant nor Defendant had been prosecuted for a homicide.

Advisory Committee Note to FRE 804(b)(2)

  • Common law required the statement be that of the victim, offered in a prosecution for criminal homicide.

  • FRE expands dying declaration beyond common law’s narrow limits.

    • Allows declaration in prosecution for homicide as well as in civil cases.

    • Declarant does not need to be the victim at issue in the case.

    • Unavailability is not limited to death.

State v. Lewis, 235 S.W.3d 136 (Tenn. 2007)

Opinion (Wade):

  • Victim’s statement that he “knew” that “the lady with the vases” was involved in the offense qualifies as testimonial, since they did not describe an ongoing emergency but were instead about recent but past criminal activity.

  • Crawford requires unavailability of the declarant, which is satisfied, and opportunity for cross-examination, which is not satisfied.

    • Dying declaration is a historically unique exception to the Confrontation Clause, even if it is testimonial.

  • FRE 804(b)(2) retains common law limitations of the dying declaration: must be at moment of death when motive to lie is silenced.

    • An expression of opinion as to identity is excluded when the circumstances established that the victim could not have known whether defendant fired the fatal shots.

    • Since a dying declaration is essentially a substitute for testimony of the victim, admissible evidence is limited to that which the victim could have testified if present.

    • Here, evidence suggests victim’s identification of D was rationally based upon victim’s perception. He would have been permitted to offer this testimony at trial.

Declarations Against Interest


  • Unlike admissions doctrine, exception for declarations against interest applies to statements by anyone, not just the party against whom they are introduced.

  • But also unlike the admissions doctrine, it only applies to statements obviously contrary to the interests of the declarant—so contrary a reasonable person would make the statement only if it were true.

FRE 804. Exceptions to the Rule Against Hearsay—When the Declarant Is Unavailable as a Witness

  • (b) The Exceptions. The following are not excluded by the rule against hearsay if the declarant is unavailable as a witness:

    • (3) Statement Against Interest. A statement that:

      • (A) a reasonable person in the declarant's position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant's proprietary or pecuniary interest or had so great a tendency to invalidate the declarant's claim against someone else or to expose the declarant to civil or criminal liability; and

      • (B) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability.

Advisory Committee Note to FRE 804(b)(3)

  • Common law required interest be pecuniary or proprietary. The FRE expands this reasoning to its full limit, admitting declarations tending to establish tort liability or extinguish a claim, or establish criminal liability.

United States v. Duran Samaniego, 345 F.3d 1280 (11th Cir. 2003)


  • Trial court permitted witnesses including P and P’s family members to testify B apologized in their presence for stealing the belts under existing state of mind exception.

Opinion (Carnes):

  • Appellate court will not hold the district court abused its discretion where it reached the correct result even if it did so for the wrong reason.

  • Only part of the testimony fell under FRE 803(3).

    • Apology is evidence of then-existing state of mind: remorse. It is admissible to prove the truth of the matter asserted: that B felt remorse.

    • But it is not admissible to prove why B held the state of mind, or what B may have believed that would have induced it.

  • The testimony was admissible under FRE 804(b)(3).

    • The part of B’s apology where he admitted having stolen the belts is a statement against interest because it would subject the declarant to civil or criminal liability.

    • Declarant was unavailable, as required by FRE 804.

      • B was a foreign national located outside the US, and was thus beyond the subpoena power of the court. But P made reasonable efforts: enlisted B’s immediate family to find him and persuade him to return and testify; family members tried on several occasions to contact B.

United States v. Jackson, 335 F.3d 170 (2d Cir. 2003)


  • D contends trial court abused its discretion in refusing to admit the entire plea allocution of co-conspirator B. Specifically, D challenges exclusion of B’s statement that B never supervised D.

Opinion (McLaughlin):

  • Trial court did not abuse its discretion in excluding B’s plea colloquy under FRE 804(b)(1), since P did not have opportunity and similar motive to examine B at plea allocation as it does at trial.

  • The plea allocution was not admissible under FRE 804(b)(3), since the part of the statement D sought to introduce was not self-inculpatory to B and was uncorroborated.

    • FRE 804(b)(3) allows admission of hearsay statement by unavailable witness if statement at the time of its making so far tended to subject the declarant to civil or criminal liability that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true.

    • FRE 804(b)(3) further requires that if the statement exposes declarant to criminal liability and is offered to exculpate the accused, the proponent of the statement must identify corroborating circumstances that clearly indicate the trustworthiness of the statement.

      • Statements from a guilty plea allocution can be admitted under FRE 804(b)(3), but their admission is strictly circumscribed by Williamson v. United States.

      • Williamson v. United States: FRE 804(b)(3) does not allow admission of non-self-inculpatory statements, even if they are made within a broader narrative that is generally self-inculpatory. Each particular hearsay statement offered under FRE 804(b)(3) must be separately parsed and must, itself, be self-inculpatory.

    • The statements by B that D sought to introduce at trial were not themselves self-inculpatory of B, and therefore did not satisfy Williamson.

      • The statement B never supervised D did not expose B to criminal liability, and may have reduced B’s liability since they minimized the number of people involved in the conspiracy.

    • Even if B’s statements could be construed as self-inculpatory, D failed to satisfy the corroboration requirement.

Forfeiture By Wrongdoing


  • FRE 804(b)(6) was added in 1997 to codify a common-law exception aimed at preventing use of hearsay rule by a party who purposefully and wrongfully causes a declarant’s unavailability.

FRE 804. Exceptions to the Rule Against Hearsay—When the Declarant Is Unavailable as a Witness

  • (b) The Exceptions. The following are not excluded by the rule against hearsay if the declarant is unavailable as a witness:

    • (6) Statement Offered Against a Party That Wrongfully Caused the Declarant's Unavailability. A statement offered against a party that wrongfully caused—or acquiesced in wrongfully causing—the declarant's unavailability as a witness, and did so intending that result.

Advisory Committee Note to 1997 Amendment to FRE 804

  • The wrongdoing need not consist of a criminal act. The rule applies to all parties, including the government.

  • Usual FRE 104(a) preponderance of evidence standard applies to determining whether there is a forfeiture.

Giles v. California, 554 U.S. 353 (2008)


  • D fatally shot his ex-girlfriend, V. Jury convicted D of murder, rejecting his claim of self-defense.

  • D challenged trial court’s admission into evidence statements that V told police officer, responding to domestic violence report three weeks before shooting, that D had accused her of having an affair and beat her.

Opinion (Scalia):

  • Common-law doctrine of forfeiture by wrongdoing. This permitted introduction of statements of a witness who was “detained” or “kept away” by the “means of procurement” of the defendant. The terms used to define the scope of the forfeiture rule suggest it only applied when the defendant engaged in conduct designed to prevent the witness from testifying.

    • The exception has not been invoked where the defendant caused a person to be absent without intending to prevent the person from testifying. Conduct must be intended to prevent testimony, not merely have that effect.

  • FRE 804(b)(6) codified the forfeiture doctrine, and it applies to “wrongdoing that was intended to, and did, procure unavailability of declarant.”

  • Acts of domestic violence often are intended to dissuade victim from resorting to outside help, and include conduct designed to prevent testimony to police officers or cooperation in criminal prosecutions.

Residual Exception


  • Residual or “Catchall” exception to federal hearsay rule allows introduction of certain out-of-court statements that seem reliable and highly probative but are not “covered” by other exceptions.

  • Major controversy surrounds what is meant by “covered.”

FRE 807. Residual Exception

  • (a) In General. Under the following circumstances, a hearsay statement is not excluded by the rule against hearsay even if the statement is not specifically covered by a hearsay exception in Rule 803 or 804:

    • (1) the statement has equivalent circumstantial guarantees of trustworthiness;

    • (2) it is offered as evidence of a material fact;

    • (3) it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts; and

    • (4) admitting it will best serve the purposes of these rules and the interests of justice.

  • (b) Notice. The statement is admissible only if, before the trial or hearing, the proponent gives an adverse party reasonable notice of the intent to offer the statement and its particulars, including the declarant's name and address, so that the party has a fair opportunity to meet it.

Weissenberger & Duane, Federal Rules of Evidence

  • Senate Judiciary Committee intended that residual hearsay exceptions will be used very rarely and only in exceptional circumstances. Conference Committee added requirement that proponent of evidence offered under residual exception must give notice before trial.

United States v. Laster, 258 F.3d 525 (6th Cir. 2001)


  • At trial, P introduced records of company showing sales of hydriodic acid, a component of meth, to D.

Opinion (Siler): [majority approach]

  • Evidence was not admissible under FRE 803(6).

    • Detective for state drug task force was not qualified to lay foundation, since he had not seen the company’s ledger, and did not know whether the documents were prepared simultaneously with the sales, barely familiar with the company’s record-keeping system.

  • Trial court did not err in admitting evidence under residual exception FRE 807.

    • There was no indication the records were not reliable.

    • FRE 807 finds equally trustworthy statement not specifically covered by FRE 803 or FRE 804 admissible if:

      • it is material,

      • more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts,

      • and its admission best serves the interest of justice.

    • Court here adopts broader interpretation: If a statement is admissible under one of the hearsay exceptions, that exception should be relied on instead of the residual exception.

      • The phrase specifically covered by a hearsay exception means only that if a statement is admissible under one of the FRE 803 exceptions, such subsection should be relied upon instead of the residual exception.

Dissent (Nelson Moore): [minority approach]

  • Plain language of FRE 807 is that it applies only to statements “not specifically covered,” rather than ‘not admissible.’

    • Narrow interpretation: if proffered evidence fails to meet requirements of FRE 803 exception, it cannot qualify for the residual exception.

  • Minority view is that the residual exception applies only to those exceptional cases in which an established exception to the hearsay rule does not apply but in which circumstantial guarantees of trustworthiness, equivalent to those existing for established hearsay exceptions, are present.

    • Detractors call this the “near miss theory”: near miss under specified exception renders evidence inadmissible.

    • Majority view can be called “close enough theory”: hearsay is admissible under the residual exception even when it just misses admissibility under an established exception.

Fenner, The Residual Exception to the Hearsay Rule

  • Specifically covered seems to mean falling within one of those exceptions. Excluding near-miss evidence would invite extensive litigation over how close a statement can come to another exception before it is rendered inadmissible under FRE 807.

  • Each exception has certain foundational elements, and if there is sufficient evidence of each foundational element for any one exception then the statement is specifically covered. If it does not meet all the requirements for a specific exception, then it is not specifically covered.

United States v. Boyce, 742 F.3d 792 (7th Cir. 2014)

Opinion (Posner):

  • Residual exception should swallow much of FRE 801 through 806. The hearsay rule is too complex, and trials would be better with a simpler rule.

Hearsay and Due Process


  • Constitution places two significant constraints on hearsay: CC and DPC

  • Confrontation Clause of Sixth Amendment, made applicable to states through Due Process Clause of Fourteenth Amendment.

    • Prohibits use of hearsay against criminal defendant.

    • Important even when evidence is inadmissible under hearsay rule, since constitutional violations—unlike hearsay violations—will not be held harmless unless P demonstrates beyond a reasonable doubt it didn’t affect verdict.

    • CC also triggers Bruton doctrine, prohibiting reliance on limiting instructions to cure prejudice created in joint trial where one defendant’s confession would violate the CC rights of the other defendant.

  • Due Process Clauses of Fifth and Fourteenth Amendments.

    • Due process can require admission of some evidence offered by criminal defendant, even if hearsay rule would otherwise prohibit.

Chambers v. Mississippi, 410 U.S. 284 (1973)


  • D was thwarted in second part of defense by strict application of state rules of evidence. Because of combination of state’s “party witness/voucher” rule and hearsay rule, D was unable either to cross-examine GM or present witnesses on his own behalf. D was able to chip at fringes of GM’s story, but defense was far less persuasive than it would have been.

Opinion (Powell):

  • Right of accused in a criminal trial to due process is essentially the right to a fair opportunity to defend against P’s accusations. Rights to confront and cross-examine witnesses and to call witnesses on one’s own behalf have long been recognized as essential to due process. Both these are implicated here.

  • The voucher rule, which prohibits party who called witness from impeaching his own witness, denied D the opportunity to subject GM’s repudiation and alibi to cross-examination.

    • FRE rejects voucher rule.

  • Where constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule may not be applied mechanistically to defeat the ends of justice.

    • Hearsay statements involved in this case were originally made and subsequently offered at trial under circumstances assuring their reliability.

  • Exclusion of critical testimony, coupled with state’s refusal to permit D to cross-examine GM, denied D a trial in accord with traditional and fundamental standards of due process.

    • Court establishes no new principles of constitutional law; does not signal diminution of respect accorded to States in implementing criminal trial rules and procedures.

    • Court holds “quite simply that under the facts and circumstances of the trial court deprived D of a fair trial.”

Fortini v. Murphy, 257 F.3d 39 (1st Cir. 2001)


  • D claimed self-defense. TC excluded evidence that V assaulted four men on basketball court shortly before confrontation with D. D argues TC’s ruling violated Chambers.

Opinion (Boudin):

  • Although Chambers remains law, Court has rarely used it to overturn convictions and made clear it should be used only in extreme cases.

    • United States v. Scheffer, (1998): SCOTUS majority said state law justification for exclusion will prevail unless it is arbitrary or disproportionate and infringes upon a weighty interest of the accused.

    • In cases less powerful than Chambers, defendant whose proffer of evidence was rejected for any conventionally plausible reason or rule usually has an uphill struggle.

  • It may be argued TC offered no valid justification invoked for excluding the evidence. Yet not every ad hoc mistake in applying state evidence rules, even in a murder case, should be called a violation of due process.

    • The few SCOTUS cases that actually undid convictions based on a Chambers analysis involved far more egregious situations. Those cases involved highly probative evidence absolutely critical to the defense.

      • By contrast, here, D was able to offer direct testimony on whether V lunged at him. The basketball court incident was at best indirect evidence which does no more than add to existing proof V was in a mood to lunge.

  • The exclusion of evidence in question does not rise to the level of a Chambers violation.

    • Evidence at best lies on the margin of the blurry line dividing character evidence (commonly but not always excluded) from state-of-mind evidence. It does no more than increase somewhat the likelihood of a lunge.

    • This is a close case, but exclusion here does not add up to the kind of fundamental unfairness that warrants a federal court in finding a violation of due process.

Character Evidence


  • Prohibits proving a person’s character to support an inference the person acted in conformity with his character on a particular occasion.

  • Like hearsay rule, character evidence rule depends in its application on the purpose for which it is offered. Character trait is barred only if offered to prove conduct in conformity with the trait.

  • Three exceptions:

    • Character of criminal defendant

    • Character of victim or alleged victim of criminal offense

    • Character of witness.

  • First two exceptions generally must be first invoked by criminal defendant. Once D chooses to open question of his/her character, or character of alleged victim, prosecution can follow suit.

FRE 404. Character Evidence; Crimes or Other Acts

  • (a) Character Evidence.

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

    • (2) Exceptions for a Defendant or Victim in a Criminal Case. The following exceptions apply in a criminal case:

      • (A) a defendant may offer evidence of the defendant's pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it;

      • (B) subject to the limitations in Rule 412, a defendant may offer evidence of an alleged victim's pertinent trait, and if the evidence is admitted, the prosecutor may:

        • (i) offer evidence to rebut it; and

        • (ii) offer evidence of the defendant's same trait; and

      • (C) in a homicide case, the prosecutor may offer evidence of the alleged victim's trait of peacefulness to rebut evidence that the victim was the first aggressor.

    • (3) Exceptions for a Witness. Evidence of a witness's character may be admitted under Rules 607, 608, and 609.

People v. Zackowitz, 172. N.E. 466 (N.Y. 1930)


  • Admitted evidence that, at the time of arrest for killing, D had three other pistols and a tear-gas gun in his apartment. Question at trial was whether killing was premeditated.

Opinion (Cardozo):

  • Evidence here was inadmissible.

    • Prosecutor and judge harped on the inadmissible evidence.

    • Evidence introduced for illegitimate purpose:

      • to show D had vicious character who was therefore more likely to kill with premeditated design than a man without that character.

    • Evidence was only relevant for illegitimate purpose:

      • relevant only for indicating general disposition to make use of them thereafter, which in turn is only relevant to prove bad character.

  • Character is never an issue in a criminal prosecution unless defendant chooses to make it one.

    • When the issue is self-defense, testimony has been admitted as to the murderous propensity of the victim, but never to such propensity in the defendant.

  • Would be different issue if:

    • Pistols had been bought in expectation of a particular encounter: evidence of preparation and design.

    • Pistols were so connected with crime as to identify perpetrator, e.g., perpetrator dropped them at scene of crime: evidence to implicate possessor if identity was disputed, no matter the opprobrium attached to his possession.

    • Defendant left apartment carrying the weapons: evidence preconceived design.

  • No such implication of preconceived design from ownership of guns left at home.

Cleghorn v. New York Central & Hudson River R.R. Co., 56 N.Y. 44 (1874)


  • Accident caused by switchman who failed to close switch. Court admitted evidence of employee’s drinking habits as a switchman.

Opinion (Church):

  • Warner v. NYC R.R. Co.: Court held it error to show employee’s drinking habits known to officers of company, since evidence had no bearing upon question of negligence at the time.

  • Warner decision is right, as far as it goes:

    • Previous intoxication should not tend to establish an omission to give the signal on the occasion of the accident.

  • In the present case, however, evidence is introduced for different purpose:

    • It was sought to be proved not only was employee was intoxicated at the time of the accident, but that employee’s drinking ha bits were known by company agent with power to employ or discharge him, with a view of claiming exemplary damages.

      • Evidence was competent for the second purpose.

Berryhill v. Berryhill, 410 So. 2d 416 (Ala. 1982)


  • During course of custody proceeding, petitioner asked respondent if he ever killed anyone.

Opinion (Beatty):

  • The question may have been overbroad, but it was relevant.

    • If character or reputation becomes a matter in issue in a civil suit, evidence with reference to such a party’s reputation or character is admissible.

    • In a child custody proceeding, character is obviously an issue.

  • Question of whether R every killed anyone would be relevant as attempt to show specific act of bad character bearing on fitness of respondent.

  • [Character in issue is tricky. It’s not excepted when character is relevant. Character must be an issue in the case.]

Larson v. Klapprodt, 231 N.W.2d 370 (S.D. 1975)


  • P alleged D slandered him in telling certain persons he drank to excess and was sexually promiscuous.

Opinion (Coler):

  • TC may properly have determined that the plaintiff’s reputation was so tarnished that it was not materially damaged by the alleged slander.

  • Since damage to reputation is part of P’s claim, evidence of P’s reputation or misdeeds was admissible both in establishing truth and mitigating damages.

Advisory Committee Note to FRE 404(a)

  • Character questions arise in two fundamentally different ways:

    • “Character in issue”: character itself is an element of a crime, claim, or defense.

      • E.g., competency of driver in an action for negligently entrusting a motor vehicle to an incompetent driver.

      • No problem of the general relevancy of character evidence is involved, so FRE 404(a) doesn’t apply here.

    • “Circumstantial”: character evidence used to suggest an inference that the person acted on the occasion in question consistently with his character.

      • E.g., evidence of honesty to disprove a charge of theft.

  • Most jurisdictions reject circumstantial use of character, but with important exceptions:

    • (1) accused may introduced pertinent evidence of good character (often misleadingly called ‘putting character in issue’).

      • In this event, prosecution may rebut with evidence of bad character.

    • (2) accused may introduce pertinent evidence of the character of the victim (as in support of claim of self-defense in homicide, or of consent in rape)

      • Prosecution may then introduce similar evidence in rebuttal of the character evidence or, in a homicide case, to rebut a claim the deceased was the first aggressor, however proved.

    • (3) character of witness may be gone into as bearing on his credibility.

Methods of Proving Character


  • When one of the three exceptions apply, it typically only applies to testimony about a person’s reputation, or a witness’s own opinion about the person’s character.

  • Evidence of how the person has actually acted on other occasions remains excluded.

FRE 405. Methods of Proving Character

  • (a) By Reputation or Opinion. When evidence of a person's character or character trait is admissible, it may be proved by testimony about the person's reputation or by testimony in the form of an opinion. On cross-examination of the character witness, the court may allow an inquiry into relevant specific instances of the person's conduct.

  • (b) By Specific Instances of Conduct. When a person's character or character trait is an essential element of a charge, claim, or defense, the character or trait may also be proved by relevant specific instances of the person's conduct.

FRE 803. Exceptions to the Rule Against Hearsay—Regardless of Whether the Declarant Is Available as a Witness

  • The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:

  • (21) Reputation Concerning Character. A reputation among a person's associates or in the community concerning the person's character.

Michaelson v. United States, 335 U.S. 469 (1948)


  • D called five witnesses to prove he enjoyed a good reputation.

  • P asked witnesses on cross-exam, “Did you ever hear that on October 11th, 1920, the defendant, Solomon Michelson, was arrested for receiving stolen goods?”

    • TJ gave limiting instruction that jury should not assume the incident actually took place, and the evidence was only for purpose of reputation.

Opinion (Jackson):

  • When defendant elects to initiate a character inquiry, defendant is permitted to call witnesses to testify from hearsay, but such a witness is not allowed to base his testimony on anything but hearsay.

    • Witness is allowed to summarize what he has heard.

    • Witness can’t testify about defendant’s specific acts or possession of particular traits; can’t testify that his own acquaintance, observation, knowledge of defendant leads to his own independent opinion.

  • On cross-exam, once D introduces character evidence, prosecution can pursue inquiry with contradictory witnesses, and ask bases of opinion. Must have good faith basis, and must be pertinent to current allegations.

    • Defense counsel cannot, on re-direct exam, ask follow up questions about specific-event questions asked by prosecution.

  • TC did not err:

    • The question permitted was proper cross-examination because reports of D’s arrest for receiving stolen goods, if admitted, would tend to weaken the assertion he was known to be an honest and law-abiding citizen.

    • Limiting instructions were sufficient.

Advisory Committee Note to FRE 405

  • Rule confines use of evidence of specific instances of conduct (or by basically any other means) to cases in which character is, in the strict sense, in issue and hence deserving of a searching inquiry.

  • When character is used circumstantially, on the other hand, proof may be made only by reputation and opinion. These are also available when character is in issue.

  • On cross-exam, inquiry is allowed as to whether reputation has heard of particular instances of conduct pertinent to trait in question. Sheds light on accuracy of witness’s hearing and reporting.

Government of the Virgin Islands v. Roldan, 612 F.2d 775 (3d Cir. 1979)


  • Wife of D’s nephew was called by government. D counsel asks on cross-exam, “Would you say D is a lonely, unsociable fellow?” and witness responds “He is a man that never bother anybody.” On redirect exam, P asked “You are aware, are you not, D was previously convicted of first degree murder?”

  • District court determined that by asking questions about D’s social habits, D’s counsel had put D’s character in issue.

Opinion (Garth):

  • Question was admissible.

    • Questions directed toward establishing that D had little conduct with anyone and would therefore be unlikely to have reason to murder anyone, putting character in issue.

    • W’s answer was not a gratuitous, unsolicited remark; it was precisely the type called for by defense counsel. [If the answer was accidental or not what defense was going for, judge wouldn’t have allowed it to open door.]

  • D also objects to form of impeachment questions, including “you are aware” rather than “are you aware?”

    • Court finds no error. FRE 405 overruled this aspect of Michaelson, so there is no basis in the form of impeachment questions for reversing conviction.

United States v. Krapp, 815 F.2d 1183 (8th Cir. 1987)


  • At theft trial, D presented a character witness who testified D was an “honest, trustworthy person.” On cross-exam, P asked “Are you aware that D’s husband with her knowledge omitted cash income on his—on their tax returns?”

    • Prosecutor knew the tax return had not been filed.

Opinion (Ross):

  • Court previously recognized possible prejudicial impact of “did you know”-type impeachment questions if they have no basis in fact.

    • Cross-examiner asking W if he “has heard” of other particular crimes involving same trait risks prejudice. The mere asking may suggest to the jury that it is true.

    • Must be circumscribed by rules of fairness and grounded in good faith on part of prosecution.

  • Question of good faith here is a close one. But even if the question were improper, when viewed in the context of the whole trial it was not so offensive as to warrant a mistrial.

    • Question was asked only once, was unanswered, and the subject matter was never brought up again before the jury.

    • District court immediately admonished jury to disregard.

    • Substantial other evidence on which jury could base conviction.

  • Court does, however, admonish prosecutor.

    • Before attempt to impeach witness with “did you know”-type question, trial judge should have opportunity, out of hearing of judge, to rule on the propriety of the questions.

United States v. Setien, 929 F.2d 610 (11th Cir. 1991)


  • D was an airline baggage handler convicted of conspiracy to import cocaine.

  • D’s witness made proffer of testimony that W was involved as high-level importer of cocaine, and offered D the opportunity to participate, but D said no and said cocaine damaged society.

Opinion (Dyer):

  • Testimony was irrelevant under FRE 405(b) and not admissible under FRE 404(b).

  • Evidence of good conduct is not admissible to negate criminal intent.

    • W’s testimony was merely an attempt to portray D as a good character through the use of prior good acts.

United States v. Ford, 737 F.2d 1121 (7th Cir. 2013)


  • D took stand at trial and sought to testify she had cooperated in an FDI investigation of an identity-theft scheme during the relevant period.

Opinion (Flaum):

  • D argues testimony should have been allowed under FRE 404(a)(2).

  • FRE 405 limits the form evidence of law-abiding character can take. Under FRE 405(a), admissible character evidence may be introduced in the form of opinion or reputation testimony.

    • Specific instances of D’s character, on the other hand, may only be introduced if that character is an essential element of a charge, claim, or defense under FRE 405(b).

    • D’s testimony was about a specific instance of her character. D’s law-abidingness or lack thereof is not an essential element of a wire fraud charge, nor a defense to it.

Other Uses of Specific Conduct


  • Though evidence of defendant’s character is generally inadmissible, evidence of uncharged misconduct by defendants is routinely admitted in criminal cases. The evidence comes in on the theory that it is being used to prove something other than the defendant’s character, so the character evidence rule doesn’t come in at all.

Permissible Purposes

FRE 404. Character Evidence; Crimes and Other Acts

  • (b) Crimes, Wrongs, or Other Acts.

    • (1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character.

    • (2) Permitted Uses; Notice in a Criminal Case. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. On request by a defendant in a criminal case, the prosecutor must:

      • (A) provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial; and

      • (B) do so before trial--or during trial if the court, for good cause, excuses lack of pretrial notice.

United States v. Beechum, 582 F.2d 898 (5th Cir. 1978)


  • To establish that D intentionally and unlawfully possessed a silver dollar he knew to be stolen from mail, P introduced into evidence two stolen credit cards found in D’s wallet when he was arrested.

Opinion (Tjoflat):

  • Two-step test for FRE 404(b) analysis: first, it must be determined the extrinsic evidence is relevant to an issue other than the defendant’s character; second, applying FRE 403, the evidence must possess probative value that is not substantially outweighed by its undue prejudice.

    • Without an issue other than mere character to which evidence is relevant, its probative value is deemed insufficient to outweigh its inherent prejudice.

    • Advisory Committee Notes to FRE 404(b): No mechanical solution is offered. Determination must be made in view of the availability of other means of proof and other facts appropriate for making this kind of decision under FRE 403.

  • Evidence was admissible.

    • Step one: Credit card evidence is relevant to D’s intent with respect to the silver dollar.

      • D’s possession of credit cards with illicit intent diminished the likelihood that at the same moment he intended to turn in the silver dollar.

    • Step two: Applying FRE 403, the crucial issue in the case was proving D’s intent in possessing the silver dollar.

      • Justice requires admitting evidence to rebut D’s testimony he intended to surrender dollar.

      • The evidence was otherwise in equipoise.

      • Probity is augmented by the lack of temporal remoteness. The cards were kept in his wallet.

      • Other FRE 403 considerations do not alter conclusion:

        • Extrinsic evidence is not of a heinous nature; it would hardly incite jury to irrational decision by its force on human emotion.

        • Evidence was no more likely to confuse the issues, mislead the jury, cause undue delay, or waste time than any other type of extrinsic evidence.

        • Need for evidence was great, so it was not needless presentation of cumulative evidence.

        • Court was careful to allay undue prejudice with limiting instructions.

United States v. Boyd, 53 F.3d 631 (4th Cir. 1995)


  • D appeals conviction for marijuana trafficking. D argued trial court abused discretion in admitting testimony that D personally used cocaine and marijuana.

Opinion (Hamilton):

  • Evidence of D’s personal marijuana and cocaine use would be admissible under FRE 404(b) as proof of motive for participating in charged conspiracies.

    • United States v. Templeman: Evidence of D’s personal use of cocaine indicated potential motives for his distribution of cocaine—to finance his own use of the drug to insure himself of a ready supply.

  • Probative value was not substantially outweighed by prejudicial effect.

    • Personal use of drugs is not more sensational or disturbing than the crimes charged.

    • Less prejudicial than other admitted evidence D supplied hundreds of pounds of drugs.

United States v. DeJohn, 638 F.2d 1048 (7th Cir. 1981)


  • D charged with check fraud. TC admitted testimony by security guard who stated he found D behind reception desk, and of cop that while searching D on unrelated occasion, cop found checks made out to someone else and that D claimed he obtained them from a mailbox behind reception.

Opinion (Harlington Wood):

  • FRE 404 prevents any effort to prove defendant acted in criminal manner as charged by introduction of evidence showing defendant acted in similar way at some other time not charged.

  • But part (b) indicates evidence of similar actions generally is admissible when introduced for purposes other than those which (under the rule) improperly show propensity to commit the crime.

    • Here, testimony of security guard and cop was highly probative of D’s opportunity to gain access to mailbox and obtain checks. This circumstantial evidence was properly admissible.

    • Issue of opportunity became material to trial once D counsel set forth theory in opening argument that it was not their client who uttered the forged checks.

Lewis v. United States, 771 F.2d 454 (10th Cir. 1985)


  • D charged with post office burglary.

  • TC admitted testimony that D burgled garage store shortly before the post office burglary.

Opinion (Doyle):

  • Evidence of D’s participation in garage store burglary hours before post office burglary falls squarely within FRE 404(b) as establishing D’s plan and intent.

  • Evidence was especially probative because D allegedly took from store some equipment needed for post office burglary.

United States v. Crocker, 788 F.2d 802 (5th Cir. 1986)


  • Besides obtaining and preparing counterfeit checks, D’s role was to drive a co-conspirator to banks where checks would be cashed and proceeds split equally.

  • TC admitted evidence of earlier arrest, where D was arrested with the same co-conspirator while in automobile with counterfeit checks.

Opinion (Cerezo):

  • D’s knowing participation was crucial element which, if not clearly established would have left jury with impression D was merely driving his friend to several banks.

    • United States v. Zeuli: In every conspiracy case, a not guilty plea renders defendant’s intent a material issue and imposes a difficult burden on the government.

    • Fact D was arrested before under similar circumstances was highly probative of his knowledge that co-con’s checks and trips to bank were for illicit purpose.

United States v. Dossey, 558 F.2d 1336 (8th Cir. 1977)


  • Teller could not positively identify D as bank robber, but testified D “looks like” the robber.

  • Witness testified she, D and companion planned and executed another robbery in Mesa, Arizona, where D wore same disguise. Witness also testified D admitted to another robbery in Minnesota.

Opinion (Henley):

  • Evidence of Arizona robbery was admissible to prove identification of person who robbed the Little Rock bank.

    • Substantial probative value of evidence was not outweighed by the possibility of unfair prejudice.

      • Identity was important due to teller’s inability to positively identify D.

      • Similarity in modus operandi and disguise was great and incidents were close in time.

  • Questionable whether district court should have admitted witness’s testimony about Minnesota robberies.

    • This testimony was of limited probative value because its only connection with Little Rock was appellant’s statement she wore disguises in Minnesota.

    • The error, if any, was harmless beyond a reasonable doubt.

    • Testimony was brief and not again referred to by P. TC gave limiting instructions.

United States v. Wright, 901 F.2d 68 (7th Cir. 1990)


  • Undercovers bought crack from a man who sold it to officers at curbside on a Chicago street. From police photographs of sale, officers identified man as D.

  • Cops did not immediately arrest but wiretapped D’s phone, intercepting conversation where D did not admit making the sales now charged, but did admit committing other drug crimes.

  • Trial judge admitted conversation to establish identity and intent.

Opinion (Posner):

  • There was no issue of intent in this case, only one of identity.

    • No question of whether D knew what was in the packages he sold the officers.

  • The tape did not have any relevance to identity.

    • By “identity,” district judge must have meant “guilt,” and that is an impermissible equation. Conversation may show D is more likely guilty of the crime charged than the average man on the street who is not a drug dealer, but does not in the least show the man who sold the bags six months earlier was correctly identified as D.

      • It would show this if D instead referred to the specific sale here charged.

    • The only relevance of the tape was to depict D as a drug dealer. Against this, limiting instruction was not limiting at all.

United States v. Davis, 726 F.3d 434 (3d Cir. 2013)


  • D arrested when found in car with a kilo of cocaine in backseat, and convicted for possession with intent to distribute. As evidence D recognized the cocaine in the backseat, P proved at trial he had two prior convictions for possessing cocaine.

Opinion (Smith):

  • Possession conviction is inadmissible to prove D’s knowledge or intent in distribution trial.

    • Possession and distribution are different in important ways. Based on the base-bones stipulation before it, jury had no way of knowing whether D’s experiences made him any more likely to recognize the cocaine in the backseat. One who possesses a drug may not recognize it when prepared for distribution: maybe different quantity, smell, appearance

    • The convictions were not probative of D’s knowledge. At best, they were of such limited probative value they fail the balancing requirement of FRE 403.

  • Lopez and Givan precedents are distinguishable, because in both cases, defendant had been convicted of dealing cocaine.

    • United States v. Lopez: defendant’s participation in cocaine-distribution conspiracy was admissible in possession trial to prove knowledge of heroin, a different drug altogether.

    • United States v. Givan: defendant’s conviction for distributing cocaine was admissible to prove knowledge and intent in heroin-distribution trial.

    • These cases were at the outer bounds of admissibility under FRE 404(b).

      • Dealers presumably have more knowledge of drugs in general. In contrast, a possession conviction does not imply a similar level of knowledge or does intent to distribute.

Requisite Proof

Huddleston v. United States, 485 U.S. 681 (1988)

  • SCOTUS held FRE imposes no requirement to prove misconduct actually occurred before introducing evidence of uncharged misconduct.


  • Case presents question of whether under FRE 404(b), district court must itself make preliminary finding that Government has proved the other act by preponderance of evidence before it submits evidence to the jury. Court holds it need not do so.

  • D charged with selling stolen goods and with possessing stolen property. District Court allowed P to introduce evidence of similar acts under FRE 404(b) as relevant to D’s knowledge.

Opinion (Rehnquist):

  • FRE 404(b) protects against extrinsic act evidence when the evidence is offered solely to prove character, but does not require any preliminary showing is necessary before such evidence may be introduced for a proper purpose.

  • Still, Government may not parade past the jury a litany of potentially prejudicial similar acts that have been established or connected to defendant only by unsubstantiated innuendo.

  • Protection against unfair prejudice emanates not from requirement of preliminary finding by trial court, but from other sources:

    • (1) requirement of FRE 404(b) that evidence must be offered for proper purpose;

      • Evidence is admissible under FRE 404(b) only if it is relevant. In FRE 404(b) context, similar act evidence is relevant only if the jury can reasonably conclude that the act occurred and the defendant was an actor.

    • (2) relevancy requirement of FRE 402, enforced through FRE 104(b);

      • In determining whether Government has introduced sufficient evidence to meet FRE 104(b), trial court neither weighs credibility nor makes a finding the Government has proved the conditional fact by a preponderance of evidence.

      • Trial court simply examines, with broad discretion, all the evidence in the case (direct and indirect) and decides whether a jury could reasonably find the conditional fact.

    • (3) assessment the trial court must make under FRE 403 to determine whether the probative value of the similar acts evidence is substantially outweighed by its potential for unfair prejudice.

    • (4) from FRE 105’s provision that trial court shall, upon request, instruct jury to consider similar acts evidence only for proper purpose for which it was admitted.

Character and Habit


  • Unlike character generally, evidence of habit is admissible to prove conduct in conformity with habit on a particular occasion.

FRE 406. Habit; Routine Practice

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

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