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Law Outlines > Evidence Outlines

Evidence Full Course Outline

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A more recent version of these Evidence Full Course 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

Chapter 1. Introduction to Evidence Law 3

D. The Role of the Trial Judge 3

1. The Trial Judge’s Authority 3

2. The Trial Judge’s Discretion 3

Chapter 2. Relevance 5

A. Relevance and Irrelevance 5

B. Probative Value and Prejudice 9

C. Conditional Relevance 15

Chapter 3. Hearsay 17

A. The Hearsay Rule and Its Rationale 17

1. Introduction 17

2. Nonhearsay Uses of Out-of-Court Statements 20

3. Implied Assertions 26

B. Hearsay and Confrontation 29

C. Exceptions to the Hearsay Rule 34

1. Prior Statements by Witnesses 35

2. Admissions by Opposing Parties 37

a. Direct Admissions 37

i. Generally 37

ii. Admissions and Multiple Hearsay 39

iii. Admissions and Completeness 40

b. Adoptive Admissions 40

c. Authorized Admissions 42

d. Agent and Employee Admissions 43

e. Co-Conspirator Admissions 45

f. Admissions and the Bruton Rule 48

3. Spontaneous and Contemporaneous Statements 51

4. State of Mind 54

a. Generally 54

b. The Hillmon Doctrine 55

5. Injury Reports 59

6. Recorded Recollection 60

7. Business Records 63

a. Generally 63

b. Qualifying “Businesses” 64

d. Sources of Information 67

e. Absence of Record 68

8. Public Records 69

9. Former Testimony 74

10. Dying Declarations 79

11. Declarations Against Interest 81

12. Forfeiture By Wrongdoing 84

13. Residual Exception 87

D. Hearsay and Due Process 89

Chapter 4. Character Evidence 93

A. The Basic Rule and Its Exceptions 93

C. Other Uses of Specific Conduct 101

1. Permissible Purposes 101

2. Requisite Proof 107

D. Character and Habit 109

E. Sexual Assault and Child Molestation 112

1. Character of the Victim 112

2. Character of the Defendant 118

Chapter 5. Other Forbidden Inferences 121

A. Subsequent Remedial Measures 123

1. Civil Settlements 123

2. Criminal Settlements 127

C. Medical Payments and Liability Insurance 129

A. Introduction 130

B. Character for Untruthfulness 131

1. In General 131

2. Prior Criminal Convictions 134

a. Admissible and Inadmissible Convictions 134

b. Preserving Claims of Error 137

C. Prior Inconsistent Statements 139

D. Bias and Incapacity 145

E. Specific Contradiction 147

F. Rehabilitation 151

1. In General 152

2. Character for Truthfulness 153

3. Prior Consistent Statements 156

Chapter 9. Opinions, Experts, and Scientific Evidence 160

A. Lay Opinions 160

B. Expert Testimony 165

1. Permissible Subjects and Scope 165

2. Reliability 169

a. Court-Appointed Experts 169

Chapter 10. Privileges 173

A. In General 173

B. Attorney-Client Privilege 174

1. Introduction 174

2. Elements of the Privilege 177

a. Communication 177

b. In Confidence 178

c. Between Attorney and Client 181

d. To Facilitate Legal Service 186

3. Waiver 188

4. Crime-Fraud Exception 192

C. Spousal Privileges 193

Chapter 11. Physical Evidence 195

A. Authentication 195

B. The Best Evidence Rule 201

1. Scope and Purpose 202

2. Exceptions 203

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

Chapter 1. Introduction to Evidence Law

D. The Role of the Trial Judge

1. The Trial Judge’s Authority

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.

Advisory Committee note to FRE 104(a)

  • Applicability of a particular rule of evidence often depends upon the existence of a condition: e.g., is the alleged expert a qualified physician? If the question is factual in nature, the judge considers evidence pro and con on the issue. Practical necessity leads the judge, when determining admissibility, to hear evidence without regard to exclusionary rules: a piece of evidence offered and objected to may itself be considered in ruling on admissibility.

2. The Trial Judge’s Discretion

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

  • FRE, like FRCivP and FRCrimP, mandates courts disregard errors not affecting substantial rights of the parties. Reversible or prejudicial error must affect substantial rights. Definition of substantial rights is vague, and prejudice is determined on case-by-case basis.

  • 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

  • Most appellants do not get chance to test harmfulness of error, since evidentiary standard makes it difficult to prove error by record.

  • 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.

United States v. Walton, 217 F.3d 443 (7th Cir. 2000)

  • Reviews trial court’s determination of admissibility under abuse of discretion standard, affording “great deference” to TC’s determination because of trial judge’s first-hand exposure to witnesses and evidence as a whole, familiarity with case and ability gauge impact of evidence in context of entire proceeding.

  • Appellants who challenge evidentiary rulings of district court are like rich men who wish to enter the Kingdom: their prospects compare with those of camels who wish to pass through the eye of a needle.

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

Procedural posture:

  • Appeal from jury award to P of damages for sexual harassment.


  • 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.

  • Prior to trial, Coletta was identified as witness and D anticipated Coletta would describe her own experiences and thus moved in limine for an order limiting or excluding such testimony as irrelevant or, if relevant, unduly prejudicial under FRE 403. TJ denied motion without discussion.

  • At trial, Coletta described her own experience and was allowed to testify, over objections by D, about how she felt about and assed P’s allegations.

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.”

    • Coletta was not qualified as an expert.

    • Assessments were not limited to the kind of opinion testimony deemed helpful to a jury (e.g., estimate of car speed).

  • If basic objection—improper opinion testimony by lay witness—had been preserved, court might be tempted to reverse.

    • Coletta’s assessment may have had limited impact, but it is open to doubt whether testimony’s admission could be deemed harmless.

  • But the objection was not properly preserved.

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

    • But TJ only definitively ruled that Coletta could testify about her own experience, not assess D’s experience. This is evident from in limine motion itself.

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

      • D objected when opinion testimony was offered at trial, but objections were either unexplained or had to do with time frame.

      • Given earlier attacks based on relevance and prejudice, it was not obvious to TJ that new objections were to impermissible lay witness opinion.

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

    • It is far from clear the testimony was harmful, and this doubt alone is enough to bar reversal under the plain error doctrine: although the error is plain in retrospect, there is no showing that it probably infected the outcome or caused a miscarriage of justice.

  • Remanded on other grounds.

Chapter 2. Relevance

A. Relevance and Irrelevance


  • As Thayer used the terms, relevance is determined by logic and experience, not by legal rules. Evidence is relative if rationally probative in any way, so it needs have very little probative force to be relevant. The low threshold for relevance is part of why there are no exceptions for irrelevant evidence.

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

  • Relevance is determined by processes of legal reasoning. Relevancy is not an inherent characteristic of any item of evidence, but exists only as a relation between an item and a matter provable in the case.

  • 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.

Advisory Committee Note to FRE 402

  • Admissibility of all relevant evidence, with some exceptions, and inadmissibility of all relevant evidence is the foundation of the structure of admission and exclusion.

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

Procedural posture:

  • D appeals conviction for murder, challenging denial of motion for new trial.


  • 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 cross-examination, P asked D who told him of old man, and D said he couldn’t say.

  • 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.

  • D argues it was error to admit physician’s testimony, since the question was whether D had in fact heard the story, not the story’s truth or falsity.

Opinion (Gillet, J):

  • The testimony was admissible.

    • While there must be an open and visible connection between the fact under inquiry and the evidence, the only a logical connection is required, since requiring an actual connection would exclude all presumptive evidence.

    • 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).

  • Affirmed.

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


  • D was a US Customs officer found guilty of kidnapping, robbing and murdering V when V attempted to carry $700k into the US.


  • 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.

  • D argues D had to own a gun as customs officer, and so evidence of ownership and about barrel was irrelevant and prejudicial.

Opinion (Breyer, J):

  • That evidence is not irrelevant.

    • Under FRE 401, relevant is any evidence having tendency to make existence of any fact of consequence more or less probable.

    • 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.

  • Affirmed in part and reversed in part (on other grounds).

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


  • D appeals from conviction for negligent endangerment.

  • 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 .17g/100ml, and estimated BAC of .20-.27 at time of accident.


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

  • At trial, P claimed D made mistakes in judgment due to alcohol, reminded jury BAC was three times the limit for driving, and claimed person too drunk to drive is too drunk to ride hot-blooded horse with a five-year-old.

  • 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.

  • Affirmed.

Morgan, Basic Problems of Evidence

  • Demonstrates a chain of inferences and unarticulated premises leading from evidence A to conclusion F.

    • Value of item A as probative of F varies with degree of probability of existence of each presumed fact and inversely with the number of inferences between A and F.

    • Distinction between A’s relevance as evidence of F, and A’s weight as evidence of F.

  • Other items may be offered, each of which with a series of inferences leading to F, which will strengthen the foundation for the ultimate inference.

    • No matter how numerous the items or short the series of inferences, they will never produce certainty. Still, for the existence of ultimate fact to be a question for trier of fact, the totality of such items must justify reasonable persons in concluding the ultimate fact is more probable than not.

Lilly, An Introduction to the Law of Evidence

  • Probative force is always limited by the weakest link in inferential chain.

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.

  • Physical evidence comes in to the trial record through a witness, who identifies and gives context.

  • Because American cases are party-driven, some evidence which may be objectionable may come in because a party fails to object, either out of interest or mistake. Parties may agree beforehand about what they think should come in or not.

  • Sources of evidence law:

    • Statutory

    • Constitutional

      • Confrontation clause: new development, significantly changed evidence

      • Due process clause: narrow path, hard to use to limit evidence

  • Interpreting Rules of Evidence:

    • Text of the rule: context, purpose

    • Legislative history

      • Congressional sources: committee reports, debate

      • Advisory Committee

    • Common law and treatises: rules often codified or changed common law, so CL remains important

  • Who decides disputes over evidence?

    • Parties: decide what to put forth, when to object

    • Trial judge

    • Appellate court (rarely, most action is in trial court)


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

  • Hearsay may be relevant but inadmissible.

  • 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.

  • The big question for relevance is: Prejudicial or Probative?

  • Typically, in framing the case, prosecutors will say “This is simple, look narrowly at what the defendant did this day at this time, etc.”, whereas defense will say “This case is not simple; in order to understand that narrow thing you have to understand the whole other thing, a bigger picture.”

  • FRE 401: Relevance is any tendency to make a fact more or less probable, where the fact is of consequence in determining the action.

    • Relevance is not the same as sufficiency or proof.

    • “Of consequence” stipulation means that relevance is contextual. The proposed evidence must relate to a fact or element in the case. You must think about how it advances the law.

  • FRE 402: Relevant evidence is admissible, except when it isn’t.

Check Chapter 6 for mechanisms of trial (not covered in class).

B. 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

  • Case law recognizes some circumstances call for excluding evidence of unquestioned relevance, including risk of unfair prejudice, confusion of issues, misleading the jury, or waste of time. In deciding whether to exclude, consider probable effectiveness of a limiting instruction.

    • “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.

Swift, One Hundred Years of Evidence Law Reform: Thayer’s Triumph

  • Benefits of trial judge discretion: judicial economy, individualized and flexible, promoting truth-seeking function by allowing room for TJ’s awareness of complexity and uniqueness of particular case.

  • Costs of trial judge discretion: arbitrary and unfair, unpredictable, inconsistent outcomes dependent on personality of judge, loss of confidence in judicial system, trial judges incapable of making subtle judgments FRE 403 requires.

United States v. Noriega, 117 F.3d 1206 (11th Cir. 1997)


  • D (Manuel Antonio Noriega) was indicted by USA federal grand jury on drug charges, alleging he used position as commander of Panamanian Defense Forces to help Colombians smuggle cocaine through Panama into the USA. After lengthy pre-trial and trial, D was found guilty of 8 out of 10 counts on indictment, and sentenced to 40 years.

  • Before trial, D gave intent 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 information about content of discrete operations was irrelevant to defense or, alternatively, the tendency of such evidence to confuse the issues substantially outweighed any probative value it might have had.

    • Ruling left D free to present evidence of fact, amounts, time, source and method of money allegedly received from USA. D declined to submit evidence because, he now contends, it would not have appeared credible to jury absent excluded details regarding actual services.

Opinion (Kravitch, J):

  • 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.

    • So, district court may have overstated the case when it declared evidence of the services wholly irrelevant.

  • 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.

    • So, cannot conclude district court abused its discretion when it determined the probative value of proffered evidence was outweighed substantially by confusion of issues admission would have caused.

  • Convictions affirmed; denial of motion for new trial affirmed.

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


  • Ds (husband and wife) appeal convictions for failing to file tax returns and filing false withholding exemption certificates.

    • At trial, Ds admitted their income was high enough to make them liable for tax and they signed false withholding forms and failed to file returns.

    • Only contested P’s contention acts were willful.

    • D testified 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.

  • Ds argue jury would have been more likely to credit sincerity of D’s belief they were not subject to filing a return if jury had seen documents.

Opinion (Johnson, J):

  • FRE 403 provides evidence, though relevant, may be excluded for enumerated reasons. A district court’s ruling under FRE 403 will not be disturbed except for abuse of discretion. [Even if objection preserved? Why so strict? A: abuse of discretion is less strict than plain error]

  • Documents relied upon by D would have been cumulative because D testified to documents relied upon and their contents.

    • Introduction of documents would have had little further probative value.

  • 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.

    • D contends soundtrack proves P should have heard forklift beginning to unload logs.

Opinion (Posner, J):

  • Background noise was relevant to defense of contributory negligence.

    • So, no objection in principle to presenting evidence of noise levels.

  • 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.

  • Nor can district judge rely on counsel’s self-interest not to offer worthless evidence; lawyer may throw up a lot of evidence to confuse the jury.

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. Jury trial resulted in conviction and sentence of life imprisonment.

  • D objects to admission of various photographs, claiming these should have been excluded under FRE 403 as relevant matter the probative value of which is substantially outweighed by the danger of unfair prejudice.

Opinion (Gee, J):

  • Some photos were gruesome, though so was the murder. 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 meant to relax the iron rule of relevance to permit fairness of proceedings.

    • 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.

  • Affirmed.

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


  • D translated Arab-language materials into English and posted translations on a website for those sympathetic to al Qaida and Salafi-Jihadi perspectives, and also traveled to Yemen. D charged with and convicted of conspiring and attempting to provide, and providing, material support to terrorists, and sentenced to 20 years.

  • On appeal, D challenged district court’s admission of dozens of terrorism-related images, videos, and materials, some extremely disturbing, [unclear from opinion whether D was involved in these materials] claiming these vastly exceeded what was necessary to prove P’s case, inflamed the jury, and contaminated the verdict.

  • P argues D’s motive and intent are material facts and disputed media have probative value with respect to those facts.

Opinion (Selya, J):

  • The evidence doubtless bears on D’s motive and intent. While no picture, video, book or tract spoke directly to D’s purpose in traveling to Yemen, evidence needn’t achieve conspicuousness of a smoking gun to have probative value.

    • [Argument for presenting lots of evidence is the force comes from multitude]

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

    • But the line is hard to draw with no mathematically precise way to plot it.

    • It is different in every case.

    • Lack of scientifically accurate measure reinforces trial judge’s role and the wisdom of according substantial deference to trial judge’s balancing decision.

  • It is fairly debatable whether P’s evidence crosses this line, but the district court gave the question careful attention, and so this court is reluctant to second-guess.

    • Terrorism trials often include emotional evidence. FRE 403 does not ensure trials are antiseptic affairs.

    • Litigants invariably introduce evidence in an effort to sway jurors. In that sense, all evidence is meant to be prejudicial. FRE 403 was never designed to alter that reality.

  • Court cannot say district court’s FRE 403 determinations offended that principle.

    • For the most part evidence of which D complains served to discredit his claim that his purpose was innocuous.

    • Court carefully superintended ebb and flow of evidence, displayed sensitivity to FRE 403 concerns, took pains to minimize impact of potentially inflammatory evidence, and gave jury suitably prophylactic instructions.

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 under 18 USC §922(g)(1), which prohibits possession of firearm by anyone previously convicted for a crime punishable by more than one year, except certain crimes related to regulation of business practices.

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

  • D moved in limine for order to refrain from mentioning name of crime, except to state D had been convicted by crime punishable by imprisonment exceeding one year.

    • D argued revealing name and nature of prior crime would unfairly tax the jury’s capacity to hold P to its burden of proof beyond a reasonable doubt.

    • D offered to stipulate the fact of prior conviction.

    • P refused to join in stipulation, and district court agreed with P.

  • Over D’s renewed objection, P named and described D’s prior offense.

  • D found guilty on all counts. Circuit court affirmed.

Opinion (Souter, J):

  • As a threshold matter, the name of the previous offense is not irrelevant to the prior-conviction element of §922, and therefore not inadmissible under FRE 402.

    • The name of D’s prior offense was not itself an ultimate fact, but it was a step on one evidentiary route to the ultimate fact, since it served to bring D within a sub-class of offenders for whom firearm possession was outlawed under §922, making his status under §922 more probable than otherwise.

    • 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.

    • D relies on danger of unfair prejudice.

    • As to criminal defendant, unfair prejudice speaks to capacity of some concededly relevant evidence to lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged.

    • “Propensity evidence” of any kind (evidence of D’s evil character) is usually entirely excluded because it generalizes D’s previous bad act into bad character. It may be relevant, but the risk a jury will convict for other than the crimes charged or on the basis of bad character without being certain of guilt creates a prejudicial effect that outweighs ordinary relevance.

      • 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.

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

    • 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.

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

      • Discretionary judgment may be informed by assessing evidence’s twin tendencies, as well as by placing result of assessment alongside similar assessments of alternatives.

    • Risk of prejudice will vary, but is substantial whenever the official record offered by P would lure juror into sequence of bad character reasoning. Risk is especially obvious when prior conviction is similar to the crime presently charged.

    • D’s offer to stipulate, even without government’s acceptance, was an offer to admit the prior-conviction element was satisfied. D’s admission is good evidence under FRE 801(d)(2)(A).

  • P invokes standard rule: prosecution is entitled to prove its case by 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.

    • Standard rule, concerned about evidentiary depth, permits party to present the jury with a picture of events relied upon, not only satisfying the formal definition of the offense but also telling a richly descriptive story.

      • Unlike an abstract premise going directly to an element, traditional evidence may address many separate elements, such as motive and intent. This not only supports conclusions but may aid willingness of jurors to draw inferences necessary to reach an honest verdict. [Are we looking for honesty or accuracy? Isn’t the concern about prejudice precisely that jurors will draw honest but illegitimate inferences?]

      • Traditional evidence also establishes human significance and implicates the law’s moral underpinnings to convince jury that a guilty verdict is morally reasonable.

      • Traditional evidence, in all its details, serves to satisfy jurors’ expectations about what proper proof should be. Without that evidence, there may seem to be a gap in the story. A party seemingly responsible for cloaking something if they accept stipulation. [Why would it be P rather than D who seems responsible?] [If juries are assumed to follow instructions, why wouldn’t they be assumed to follow instruction regarding stipulation?]

  • 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.

    • The choice of evidence is not between an eventful narrative and abstract proposition, but between propositions of slightly varying abstraction.

    • Events behind prior conviction are not required to nourish juror’s sense of obligation to vindicate public interest. Issue is not about concrete details of previous conviction, but only its general character. [But the name of the offense does disclose at least some concrete details; and a concern about jury nullification in the absence of concrete details is still valid.]

    • No gap in the narrative, since the evidence goes to an element entirely outside the natural sequence of D’s thoughts and actions related to the charged offense. [Would it be different if §922 had a mens rea element to felon status?]

  • Given the peculiarities of the element of felony-convict status and of admissions used to prove it, there is no cognizable difference between evidentiary significance of admission and legitimately probative component of official record.

    • 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.

  • Judgment reversed and remanded.

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.

    • [Why are they assumed to follow instruction regarding restricted purpose of evidence, but wouldn’t be assumed to follow instruction regarding stipulation?]

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

    • Like it or not, Congress made prior conviction one of the two elements of §922. Crimes have names.

  • FRE 403 cannot be read to obviate the standard rule, which is grounded in the Constitution and SCOTUS precedent.

  • [The unspoken concern here is jury nullification on the basis of pro-gun sentiment.]

Richman, Old Chief v. United States: Stipulating Away Prosecutorial Accountability?

  • Souter’s analysis is more convincing not as description of jury behavior, but as determination that P must accept consequences of statute reaching far too many cases not comporting with popular notions of criminality.

  • Jurors might indeed take §922 prosecutions less seriously and consequently produce fewer guilty verdicts when learning the particulars of D’s prior records. Court suggests if Congress legislates so broadly, perhaps §922 offenses ought to be taken less seriously.

C. Conditional Relevance


  • Many rules of evidence make admissibility of particular item of proof depend on answer to a “preliminary question” of fact, e.g. whether attorney client privilege exists, which are typically answered by trial judge.

  • When rule is applied to ban on irrelevant evidence, it is more complicated. Then, relevance depends on whether some “preliminary fact” is true, e.g., speed of car is only relevant if D was driving car.

    • Sufficiency standard: Rules direct judge to allow the speed of the car to be provided so long as there is sufficient evidence to permit a reasonable jury to conclude D was driving car.

    • Situations of this kind are instances of “conditional relevance.”

  • Judge still decides admissibility. But the 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.

  • [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.

Morgan, Basic Problems of Evidence

  • Often, upon an issue as to the existence of C, a combination of facts A and B will be relevant but either without the other will be irrelevant.

    • E.g.: P sues D for breach of contract. P offers evidence of oral offer made to X and acceptance thereof by X on behalf of D. The offer and acceptance are irrelevant unless X’s authority to act for D also exists.

  • Where the only objection is lack of relevance, the function of the judge should be to see to it only that sufficient evidence of each is introduced to justify a finding of its existence, and the jury should determine the dispute as to each under proper instructions from the judge.

Advisory Committee note to FRE 104(b)

  • Problems of conditional relevance are to be distinguished from problems of logical relevance.

    • Problem of logical relevance would be evidence in murder case that accused purchased weapon of the kind used in killing, treated in FRE 401.

  • 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.

  • D contends trial court erred in denying motion to exclude W’s testimony because W was unable to identify D at trial as man W had spoken with in jail.

  • P responds W’s testimony was conditionally relevant under OEC 104 [same as FRE 104(b)], and was therefore properly admitted.

Opinion (Van Hoomissen, J):

  • D’s assignment of error presents question of conditional relevancy.

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

  • Evidence of preliminary fact

    • There was evidence W and D had met in jail.

    • W said person with whom he spoke represented himself or was represented by somebody else as being D.

    • W related several incriminating conversations.

    • D gained 25 pounds and shaved off a mustache since the time D and W were in jail together.

  • 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.

  • Trial court did not err in leaving the matter to the jury.

  • Affirmed.

Ball, The Myth of Conditional Relevance

  • Problems of evidence deal with probabilities, not with binary truth or falsehoods. The definition of relevance in FRE recognizes this.

  • Reference to Morgan’s example of conditional relevance in the case of breach of contract [above].

    • Whatever the probability of X’s authority to contract for D, there is some possibility of a contract when the offer and acceptance by X on behalf of D occurs, but there is not possibility of a contract when offer and acceptance does not occur.

    • Thus, the probability of contract is greater if offer and acceptance occurs, regardless of whether X has authority.

    • Evidence which raises probability of contract is relevant.

Chapter 3. Hearsay

A. The Hearsay Rule and Its Rationale

1. Introduction

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.

  • A good way to identify hearsay is to consider the chain of inferences the party offering the evidence is asking the party to make.

    • 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.

  • D requests W1 be brought to court to testify.

    • If W1 avows the confession, it will make conviction easier.

    • Witnesses are brought to testify even when the stakes are low, and here the stakes are very high.

    • W1 is the only one who initially accused D and caused charges to be brought.

    • Campion the Jesuit was allowed to meet his accuser face to face.

    • W1 is unlikely to lie in D’s favor, since W1 is already condemned (men facing death presumed to speak truthfully) and if D instigated the treason then W1 would want to seek revenge.

  • Court rejects D’s request to face W1.

    • Any risk to the king must be disallowed.

    • When no other evidence, accuser can be heard; but here there is other evidence.

    • W1 may contradict prior confession out of fear or favor, deceiving the jury.

  • 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.

    • P says this statement must have come from “some preceding intelligence” and shows D’s “treason had wings.”

  • D found guilty of treason.

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


  • Appeal by P from judgment of dismissal of his cause of action and from order of trial court denying motion for new trial.

  • 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.

  • All claims and defenses of both P and D were submitted to jury, which dismissed the complaint and counterclaim.

  • On appeal, P contends that the trial court erred when it admitted, over objection, testimony adduced 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.

    • Hearsay rule prohibits use of a person’s assertion, as equivalent to testimony of the fact asserted, unless the assertor is brought to testify in court on the stand, where he may be probed and cross-examined as to the grounds of his assertion and his qualifications to make it.

    • 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.

McCormick on Evidence

  • The factors upon which the value of testimony depends are:

    • Perception.

      • Did W perceive and perceive accurately what is described?

    • Memory.

      • Has W retained an accurate impression of that perception?

    • Narration.

      • Does W’s language convey that impression accurately?

    • Sincerity.

      • Is W, with varying degrees of intention, testifying falsely?

  • To encourage W to put forth their best efforts and to expose inaccuracies with respect to those factors, W are ordinarily required to testify under three conditions:

    • Oath.

      • May induce feeling of special obligation to speak the truth.

      • May impress danger of criminal punishment for perjury.

    • Personal presence at the trial.

      • Allows fact-finder evaluation of demeanor, which may speak to credibility.

      • Solemnity and possibility of public disgrace make testifying falsely more difficult.

    • Cross-examination.

      • Main justification for exclusion of hearsay.

      • A person who relates a hearsay is not obliged to enter into particulars, answer questions, reconcile contradictions, remove ambiguities, etc. He can simply assert he was told so, leaving the burden on the dead or absent author.

  • In a hearsay situation, two “witnesses” are involved. The first complies with all three ideal conditions for giving testimony, but merely reports statements of second “witness.” The second is the out-of-court declarant whose statement was not given in compliance with the three conditions but contains the critical information.

Tribe, Triangulating Hearsay

  • Basic hearsay problem is one of forging a reliable chain of inferences from an utterance of a person not subject to cross-exam, to an event the utterance is supposed to reflect.

    • Typically, first link is from utterance to belief it is thought to indicate.

    • Second link is from declarant’s belief to conclusion about some external event supposed to have triggered the belief.

  • Inferential chain is suspect when utterance is not made in court, where cross-exam could expose inaccuracies in the inferential chain.

    • Inaccuracies are usually attributed to ambiguity, insincerity, faulty perception, or erroneous memory.

  • Hearsay problem arises when an utterance is used to prove a conclusion but it mediated by the belief of the actor uttering. No hearsay problem arises when the conclusion can be referred immediately from the utterance.

    • An out-of-court statement “I can speak” would be admissible as nonhearsay to prove declarant was capable of speech, for it is the fact of his speaking rather than the content of the statement which permits the inference.

2. Nonhearsay Uses of Out-of-Court Statements


  • “Out-of-court” is shorthand for any statement other than one made under oath and in front of the factfinder during the same proceeding in which it is being offered in evidence.

    • Testimony in an earlier trial counts as out-of-court for the purposes of hearsay rule.

  • “Matter asserted” means the matter asserted in the statement offered into evidence, not the matter “asserted” by the party offering the evidence.

    • Evidence is typically introduced to support a series of inferential propositions. If any one of the propositions in this chain of inferences is “the truth of the matter asserted” in the out-of-court statement, the evidence falls within the definition of hearsay.

  • “Witness” is reserved for someone who testifies under oath from the witness stand.

  • “Declarant” refers to someone who makes a statement of any kind, whether or not under oath, and whether in or out of court.

  • 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.

  • The effect is to exclude from hearsay the entire category of verbal acts and verbal parts of an act, in which the statement itself affects the legal rights of the parties or is a circumstance bearing on the conduct affecting their rights.

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

Procedural History:

  • Plaintiff owned trademarks and copyrights to Barney the dinosaur, and alleged Defendant rented out a “Duffy the Dragon” costume infringing on those trademarks.

  • After bench trial, district court entered judgment in favor of D on all claims.


  • TC found P had not demonstrated a likelihood of confusion between the Duffy costume and Barney. However, it did so only after disregarding most of the evidence of actual confusion. Ample evidence presented at trial would have supported such a finding, such as principal’s testimony that, when she wore a Duffy costume at a school rally, children shouted “Barney! Barney!”

  • Despite initially admitting such evidence, TC dismissed it as “unreliable hearsay.”

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.” So the statements surely aren’t being introduced to prove the matter asserted, so there is no hearsay problem. There may, however, be issues of ambiguity or insincerity.]

    • 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.

  • Judgment vacated.

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


  • D was convicted by jury for conspiring to distribute PCP. D did not deny he participated in drug transactions described by undercover agents but argued that, during each of these transactions, he proceeded in the good faith belief that he was working for the agents, assisting them in locating drug dealers.

  • In support of position he had known from the outset the agents’ identities, D related a conversation he had with mother shortly after he met the agent and well in advance of his arrest.

    • 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.

    • Although P voiced no objection to proffered testimony, TC ruled mother could not testify to any conversation between mother and D.

Opinion (Morgan, J):

  • Purposes of hearsay rule is statement not made under oath, in presence of fact finder, or subject to cross-examination cannot be evaluated for trustworthiness and is thus considered unreliable.

    • Where out-of-court statement is offered for some purpose other than to prove the truth of the matter asserted, the value of the statement does not rest upon the declarant’s credibility and therefore is not subject to attack as hearsay.

  • 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.

    • D offered statement as basis for circumstantial inference by jury that the statement was in fact made—a question to which the in-court witness could testify under oath, before the jury, and subject to cross-examination—then D probably knew the 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, excluded testimony was only available evidence to corroborate D’s story that he had known of agent’s identities.

    • Jury may have found the story self-serving or far-fetched, and may have assumed that because D did not ask mother to confirm existence of conversation, the conversation never occurred.

    • Court is therefore unable to say with fair assurance the jury was not substantially influenced by the error.

  • Reversed and remanded for new trial.

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


  • Appeal from judgment of Supreme Court of Malaya dismissing appeal against D’s conviction and death sentence for being in possession of ammunition.

  • D argued he had been captured by terrorists and at all material times 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.

    • Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. [What if the declarant is later or earlier called as a witness?]

      • It is inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to be established by the evidence not the truth of the statement but the fact that the statement was made. [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.

  • The excluded evidence, which goes to the root of the duress defense, may have changed the result of the trial had it been admitted.

  • Appeal allowed.

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


  • D, a school district, challenged jury verdict in favor of P, a bus driver for school district, who accused D of sexual harassment and negligent retention.

  • P was stalked and harassed by another employee.

  • D 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.

    • They were used to show D’s officials had knowledge of the problem, which was an essential element of the negligent-retention claim.

    • The TC correctly gave limiting instructions to the jury, allowing jury to consider evidence to show knowledge, but not to show proof of assertion. [Limiting instruction is FRE 105. Evidence could have been used to show Stalker indeed harassed P; but it was limited to show D had notice of harassment. Could use FRE 403 to challenge the sufficiency of limiting instructions.]

    • [Though D may be entitled to a limiting instruction, D may not want one, since limiting instructions may draw more attention to the matter.]

  • Affirmed.

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.

  • D argues TC erroneously admitted hearsay evidence.

    • At trial, former employee of clinic testified pharmacies would telephone about prescriptions written by D.

    • Employee testified she told partner of these phone calls, and 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)


  • D appeals conviction for possession with intent to distribute and bond jumping.

  • 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. [What if the letter said “You have received notice of the hearings”? This would be a speech act, not assertion.]

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


  • D appeals conviction for wire fraud and conspiracy to commit wire fraud.

  • Scheme involved jail inmates calling people and pretending to be police to get credit card information, then making money orders with scammed credit card information. D, who was not in jail, then picked up the money orders.

  • D argues TC erred in admitting hearsay evidence.

    • D complains of 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.

  • Affirmed.

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


  • Ds appeals judgment in an action in conversion tried without a jury.

  • P owned and leased a farm to tenant, under written lease giving P right to two-fifths of corn grown. Tenant gave mortgage to D-bank on his share of crops. D-bank sold mortgaged property at auction. D-bank a crib of corn to D-buyer. P claims he owned that particular corn.

  • 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.”

    • A bystander was called and, against the same objection, testified to having heard the same language.

Opinion (Wilson, CJ):

  • Plaintiff owned some corn. It was necessary to identify it, and division made his share definite.

    • This division and identity was made by the acts of tenant in husking corn and putting it in separate cribs then telling P which was P’s share and P’s acquiescence therein.

  • 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.

  • Affirmed.

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


  • Plaintiff-appellant has unsatisfied judgment against insuree arising from car collision. P alleged D-insurance company was insurer of insuree’s truck at time of accident, and seeks to collect judgment from D.

  • D admits it at one time issued a liability policy to insuree but asserts insuree canceled it shortly before the accident. Insuree is not party to this suit and did not appear as witness.

  • P challenged TC’s admission of testimony of D’s agent and 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. Use of such testimony does not require reliance by the fact-finder upon the competency of the person who originally made the statements for the truth of their content.

    • 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.

  • Testimony here is admissible because it is part of an oral agreement to cancel the insurance policy.

  • Affirmed.

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


  • D was convicted of bank robbery. Dodd committed actual robbery and D drove getaway car. Dodd pled guilty and testified at D’s trial, as D’s witness, that D had not known Dodd was planning to rob the bank.

  • After testifying, Dodd gave to D’s lawyer a note for D’s mother, who read it and told D’s lawyer the note demanded money for Dodd’s having testified favorably to D.

  • Later, a 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.

  • D complains cop’s testimony about Dodd’s out-of-court statement was hearsay.

Opinion (Posner, CJ):

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

    • Illocutionary utterances narrate, describe or otherwise convey information, and so are judged by their truth value.

    • 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.

    • But here, what was overheard was merely a demand, and so the only issue of credibility was whether the cop was reporting the demand correctly. The cop’s testimony was not hearsay.

  • Affirmed.

3. Implied Assertions


  • Judges have sometimes evidence of nonassertive conduct as hearsay when offered to prove the truth of what it seems to suggest.

    • E.g., putting on a sweater as proof that it was cold.

  • But 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. While conducting search of D’s premises, cops answered telephone several times. 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. The existence of such beliefs tends to prove they were so used. D objects on ground of hearsay.

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. If a cop said “Go through the stop sign” where it was otherwise illegal to go through, it would be relevant of itself. Other examples of expression admissible as non-hearsay include verbal acts, such as “I agree” to show a contract or “He took a bribe” to show a slander was published.

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

  • At common law, this situation was a controversial no-man’s land.

    • Some argued the out-of-court utterance was not hearsay since it was not offered for any truth stated in it but for some other proposition inferred from it. Additionally, nonassertive conduct does not carry the danger of mendacity (e.g., nobody puts an umbrella up to deceive about whether it is raining).

    • Others argued the reasons for excluding hearsay applied since the evidence was being offered to show declarant’s belief in the implied proposition, and declarant was not available to be cross-examined.

  • Prevailing common-law view: Wright v. Tatham (England 1837)

    • Will contest in which will was sought to be set aside on grounds of incompetency of testator at the time of execution. Proponents of will offered as evidence letters to testator from certain absent individuals on business and social matters. The purpose was to show writers of letters believed testator was able to make intelligent decisions on the matters and was thus competent.

    • Sea captain example: Is it hearsay to offer as proof of the seaworthiness of a vessel that its captain embarked on an ocean voyage upon it with his family?

    • Court held implied assertions (both conduct and verbal) were hearsay.

      • “Proof of a particular fact which is not of itself a matter in issue, but which is relevant only as implying a statement or opinion of a third person on the matter in issue, is inadmissible in all cases where such a statement or opinion not on oath would be of itself inadmissible.”

      • Under CL: Hearsay if declarant believed the matter that is being offered into evidence, regardless of how this belief is expressed (i.e. either directly or impliedly).

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

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

      • Evidence of this character carries risks of perception, memory and narration, but not mendacity.

      • Same considerations govern nonassertive verbal conduct and verbal conduct which is assertive but offered as a basis for inferring something other than the matter asserted.

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

    • Here, the utterances of the callers were nonassertive verbal conduct, offered as relevant for an implied assertion to be inferred from them that bets could be placed at the premises being telephoned.

    • The language is not an assertion on its face, and it is obvious these callers did not intend to make an assertion about the fact sought to be proved or anything else.

State v. Dullard, 668 N.W.2d 585 (Iowa 2003)


  • D was convicted of possession of ephedrine with intent to use it as a precursor to meth.

  • Cops found in the garage a note which read “B— I was nervous and went inside. When I came back out I saw a cop standing outside and looking in our direction.”

  • The note was introduced into evidence over D’s hearsay objection.

  • P acknowledged note was a written assertion, but P argued the note was not offered to prove the truth of the matters it asserted.

    • Instead, it was introduced to support an inference from the words of warning to connect D to the items in the garage used to manufacture meth: declarant believed D needed to be told of police because he was in possession of the drug lab materials in the garage.

    • P also argued the note was written to D based on the first letter of his name (Brett).

Opinion (Cady, J):

  • The note is not hearsay.

    • This is tricky because it is an implied assertion, but the declarant may have intended in some degree to assert the proposition.

      • Advisory Committee note to FRE 801(a) supports admitting the evidence. Although the Iowa evidence code is similar, Iowa courts are not bound by the note.

    • Court is not convinced the absence of intent necessarily makes the underlying belief more reliable, especially when the belief is derived from verbal rather than nonverbal conduct.

      • The distinction between intended and unintended conduct or speech only affects the danger of insincerity. Other hearsay dangers remain viable.

      • If the expressed assertion is insincere, such as a fabricated story, the implied assertion derived from the expressed assertion will similarly be unreliable. Implied assertions can be no more reliable than the predicate expressed assertion.

    • Unlike the committee, court here does not believe indirect or unintentional assertions in speech are reliable enough to avoid the hearsay rule. Court thinks the best approach is to evaluate the relevant assertion in the context of the purpose for which the evidence is offered.

      • The Iowa evidence code does not explicitly exclude implied assertions from the hearsay rule. Court interprets legislative enactments as consistent with common law principles when language used by the legislature does not specifically negate the common law.

  • 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 and time and place, and any other circumstances.

  • The error in admitting the note was prejudicial.

    • Admission of the note played a pivotal role in establishing the possession element of the crime, and D was not able to cross-examine declarant to overcome this prejudice.

  • Reversed and remanded for new trial.

Tribe, Triangulating Hearsay

  • It is question-begging to define conduct as nonassertive when the very issue may be whether or not it was designed to deceive a viewer.

  • If the conduct is truly nonassertive, there is no possibility of insincerity. But the problem of ambiguity is greater, and the problems of memory and perception are as significant here as in any hearsay situation.

B. 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”

        • Disagreement about what this entails, but definitely satisfied by in-court testimony, in the presence of the defendant, subject to cross-examination.

    • 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 and announced different test for determining whether hearsay violates the Confrontation Clause.

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

  • Ohio v. Clark

    • Applies Crawford test

  • Overruling Roberts means a good deal of hearsay not excluded by the hearsay rule is now nonetheless inadmissible against a criminal defendant.

    • This matters because harmless error rules are less forgiving of evidence admitted in violation of the Constitution.

  • 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)

    • Court 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]


  • D confessed he and Wife had gone in search of victim because D was upset over an earlier incident in which V had tried to rape Wife. D claimed a fight ensued. Wife’s account generally corroborated D’s story, but differed with respect to whether V had drawn a weapon before D assaulted V.

  • At trial, D claimed self-defense.

  • W did not testify due to marital privilege, which generally bars a spouse from testifying without the other spouse’s consent.

    • In Washington State, the privilege does not extend to a spouse’s out-of-court statements admissible under a hearsay exception.


  • P brought W’s tape-recorded statements to police as evidence under hearsay exception that stabbing was not in self-defense.

    • Noting W admitted she led D to V’s apartment and thus facilitated assault, P invoked hearsay exception for statements against penal interest.

  • D countered that, state law notwithstanding, admitting evidence would violated confrontation clause.

  • Trial court admitted statement, and P relied on it in closing argument. Jury convicted D; CoA reversed; SSC reinstated.

Opinion (Scalia, J):

  • Confrontation Clause provides “in all criminal prosecutions, the accused shall enjoy the right… to be confronted with the witnesses against him.”

    • Applies to both federal and state prosecutions.

  • Look to historical background of the Clause to understand its meaning.

    • Common-law tradition is one of live testimony in court subject to adversarial testing, while civil law condones examination in private by judicial officers. Nevertheless, England at times adopted civil-law practice, such as where justices of the peace and other officials examined suspects and witnesses before trial. The right of confrontation was a response to abuses stemming from this practice, as exemplified in Raleigh’s Case.

  • The Confrontation Clause was aimed at avoiding civil law’s use of ex parte examinations as evidence against the accused.

    • Court rejects the view that the Confrontation Clause applies of its own force only to in-court testimony, and that its application to out-of-court statements introduced at trial depends upon the law of evidence.

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

    • Not all hearsay implicates the Confrontation Clause’s core concerns.

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

      • An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not.

      • 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.

    • Statements taken by police in the course of interrogations are testimonial under even a narrow standard.

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

    • Confrontation Clause does not suggest any open-ended exceptions. It admits only those exceptions established at the time of founding.

    • Prior opportunity for cross examination was not merely sufficient rather than necessary. Rather, it was dispositive.

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

  • Caselaw has been consistent with these two principles, though rationale has differed.

    • Ohio v. Roberts: conditions admissibility of all hearsay evidence on whether it falls under “firmly rooted hearsay exception.” This departs from historical principles: it is too broad, applying the same mode of analysis whether or not hearsay consists of ex parte testimony; it is too narrow, admitting statements that do consist of ex parte testimony upon a mere finding of reliability.

      • There is no general reliability exception to the common-law rule. The Confrontation Clause is a procedural rather than substantive guarantee. It doesn’t demand evidence be reliable, but that it be assessed in a particular manner.

      • Roberts test displaces constitutionally prescribed method of assessing reliability.

    • 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.

  • The trial below demonstrated Roberts’ failings.

    • State courts focused on reliability. Cross-examination may have been useful, and the interlocking character of the two statements, on which the SSC relied, was unclear at best.

    • Court eaves for another day to spell out a comprehensive definition of “testimonial.” But at a minimum the term applies to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.

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.

  • Exceptions to confrontation have been derived from experience. In a given instance, cross-examination may be superfluous; it may be sufficiently clear the statement offered is free enough from the risk of inaccuracy.

  • Idaho v. Wright, 497 U.S. 805 (1990): Held out-of-court statement was not admissible simply because the truthfulness of statement was corroborated by other evidence at trial.

    • Citation to this would have been sufficient for the Court here to reverse the judgment below.

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

    • CC: “in all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him.

    • Ohio v. Roberts: Interpreted CC to permit admission of out-of-court statements by unavailable witnesses so long as statements bore “adequate indicia of reliability”; and such indicia are present if evidence falls within a “firmly rooted hearsay exception” or bears “particularized guarantees of trustworthiness.”

    • 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.

    • 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.

      • Existence vel non of ongoing emergency is not touchstone of testimonial inquiry. It 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.

      • 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.

        • What role do the individual’s statements and circumstances play in the purpose of a reasonable person? I suppose this just means we disregard any “hidden motives.”

      • 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.

    • A statement cannot fall within CC unless its primary purpose was testimonial. This does not mean the CC bars every statement that satisfied the primary purpose test: historical exceptions are still recognized.

    • Thus, the primary purpose test is a necessary but not sufficient condition 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 abused in order to protect victim from future attacks.

      • Whether teachers thought protecting victim would be done by apprehending abuser or by other means is irrelevant.

    • 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.

Concurring in judgment (Scalia, J):

  • Agrees LP’s primary purpose was not to provide out-of-court substitute for trial testimony.

  • For decades earlier, under Ohio v. Roberts, hearsay statements were admitted against criminal defendants if they bore sufficient “indicia of reliability.”

    • Prosecutors loved that flabby test.

  • Crawford sought to bring CC back to original meaning with primary purpose test.

    • The primary purpose test is not merely one among many approaches. The CC categorically entitles defendants to be confronted with witnesses against him, and the primary purpose test sorts out who is acting as a witness and who is not. There are no other mysterious requirements.

  • Burden should be on prosecutor, not upon D, to prove exception to CC. The Court’s opinion instead requires D to provide evidence the adoption of CC was understood to require exclusion of evidence regularly admitted in criminal cases at time of founding.

Concurring in judgment (Thomas, J):

  • Would use the indicia of solemnity test for determining whether statement qualifies as testimonial.

  • Several categories of extrajudicial statements bearing sufficient indicia of solemnity to fall within original meaning of testimony:

    • Formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions.

    • Some statements obtained in a “formalized dialogue” after issuance of Miranda warnings; while in police custody; or in an attempt to avoid confrontation.

  • Statements made to private persons rarely resemble the historical abuses common-law right to confrontation sought to avoid.

  • Here, LP’s statements do not bear sufficient indicia of solemnity to qualify as testimonial.

C. Exceptions to the Hearsay Rule

Advisory Committee Note to Article VII of the FRE

  • Rather than excluding all but the best evidence, the common law has evolved a solution of excluding hearsay with numerous exceptions under circumstances supposed to guarantee trustworthiness. Advisory Committee adopted this approach.

    • Others advocate abandonment of the system of class exceptions in favor of individual treatment in the settling of a particular case. Advisory Committee has rejected this approach.

1. 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 804 also describes ways in which a witness can be “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)

    • The first consists of certain out-of-court statements by declarants who testify as witnesses, in court and under oath, in the very proceedings in which their earlier statements are offered as evidence.

    • Second consists of various kinds of “admissions by party-opponents.”

  • 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 having made the statement or admits having made it but denies its truth.

  • Argument in favor of treating repudiated prior statement as hearsay is based on the ground that ideal conditions did not prevail at time statement was made and cannot be supplied by later examination.

  • DiCarlo v. United States, 6 F.2d 364 (2d Cir. 1925): Judge Learned Hand writes, in respect to demeanor, when the jury decides that the truth is not what the witness says not but what he said before, they are still deciding from what they see and hear in court.

  • The bulk of the case law nevertheless has been against allowing prior statements of witnesses to be used as substantive evidence.

  • Advisory Committee is unwilling to countenance general use of prior prepared statements as substantive evidence, but recognizes particular circumstances call for a contrary result.

    • Judgment is more of experience than of logic.

    • Requires declarant actually testify and then enumerates three situations in which the statement is exempted from the category of hearsay.

  • Prior inconsistent statements traditionally have been admissible to impeach but not as substantive evidence. Under the FRE they are substantive evidence if given under oath.

  • Prior consistent statements traditionally have been admissible to rebut charges of recent fabrication or improper influence or motive but not as substantive evidence. Under the rule they are substantive evidence.

  • Admission of evidence of identification finds substantial support although it falls beyond a doubt in the category of prior out-of-court statements. The basis is the generally unsatisfactory and inconclusive nature of courtroom identifications as compared with those made at an earlier time under less suggestive conditions.

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


  • P had been employee of D’s lumber mill. P’s clothing was caught in power shaft and P was killed.

  • P’s widow sues for damages for negligent killing. P won judgment at trial. D appeals, challenging evidence.

  • P claims machine was negligently started after P began work. Testimony from many witnesses unanimously says machine was running before P went to lower floor, and there is no contradictory evidence.

  • 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.

  • There was no other evidence for the machine being started after P went near it. The jury had no right to find such a verdict based on the prior inconsistent statement alone.

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


  • Victim, a correctional counselor, was assaulted in prison and hospitalized with severely impaired memory. 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. Counsel for D attempted to refresh V’s recollection with hospital records indicating V attributed to someone besides D.

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.”

      • Ordinarily, W is regarded as “subject to cross-examination) when placed on witness stand, under oath, and responds willingly to questions.

        • Limitations on scope of exam by trial court or assertions of privilege by witness may undermine the process to such a degree meaningful cross-exam no longer exists.

      • Premise for this rule was that, given adequate safeguards against suggestiveness, out-of-court identifications are generally preferable to courtroom identifications.

  • No violation of Confrontation Clause

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

2. 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)

    • Second consists of various kinds of “admissions by party-opponents.”

  • 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.

  • Doctrine is nominally rooted in notions of adversarial fairness.

  • 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.

a. Direct Admissions

i. Generally

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;

Advisory Committee note to FRE 801(d)(2)

  • Admissions by a party-opponent are excluded from the category of hearsay on the theory that their admissibility in evidence is the result of the adversary system rather than satisfaction of the conditions of the hearsay rule.

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

  • P was injured when he crashed car into tree; P claimed he swerved 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.

  • D argues testimony should be rejected because D was not present at time of accident and remark was only based on what employee told D. But personal knowledge, however, is not required in the case of an admission by a party.

  • Affirmed.

Morgan, Admissions, 1 UCLA L. Rev. 18, 19 (1953)

  • A party can hardly object that he had no opportunity to cross-examine himself or that he is unworthy of credence save when speaking under the sanction of an oath.

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

  • Jury found D guilty of robbery. Cop testified D gave three different versions of events on day of robbery.

  • D claimed district court erred in admitting statement to police under FRE 801(d)(2)(A), because statement was not inculpatory.

  • But 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.

  • Affirmed.

McCormick on Evidence

  • Admissions may be confused with declarations against interest.

  • 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)

  • D charged with possession of drugs. At bench conference, counsel for D advised court he sought to introduce through testimony of a cop that, when cops discovered drugs in gym bag, D had stated “that is my gym bag, but co-defendant put it in the trunk.”

  • Unusual feature about introduction of this statement is that it was sought to be introduced by D, and the objection was made not by P but by co-D.

  • 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.

ii. Admissions and 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)

  • Action to recover damages for personal injuries to P, where P won verdict at trial.

  • 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.

  • In a civil action admissions by a party of any fact material to the issue are always competent evidence against him, wherever, whenever, or to whomsoever made.

  • Affirmed.

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.

    • Even though latter statement is based on A’s having told party rather than on personal knowledge, the statement is still admissible as an admission.

    • Party is still entitled to try to lessen the weight of an admission by introducing evidence it was not based on personal knowledge.

Saltzberg et al., Federal Rules of Evidence Manual

  • Since party-opponent statements and certain prior statements of available witnesses are defined as not hearsay under FRE 801(d), one could technically read FRE 805 to be inapplicable to situations in which FRE 801(d) statements are included in a hearsay statement.

  • But courts have held the technical difference between FRE 801(d) “not hearsay” and FRE 803, 804, and 807 “hearsay subject to exception” cannot control the application of FRE 805’s limitation on multiple hearsay.

  • Thus, the mere fact one level of a multiple level statement qualifies as exempt from the hearsay rule does not excuse other levels from satisfying the FRE 805 requirement that each level satisfy the hearsay rule.

  • Conversely, a statement admissible under FRE 801(d) can be admitted when included in another hearsay statement if the other hearsay statement qualifies as an exception.

  • And FRE 805 will be satisfied if one of the other statements is admissible under an exception and the other is offered for a proper non-hearsay purpose.

iii. Admissions and Completeness

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)


  • Product liability litigation stemming from crash in Navy training aircraft.

  • Several months after accident, Plaintiff, husband of deceased, sent a detailed letter to Navy investigator, wherein P took issue with investigator’s findings and suggested probable cause of crash was mechanical malfunction.

  • At trial, P did not testify on own behalf but was called as adverse witness by defense. On direct exam, P was asked about two statements in letter: one stating deceased has tried to cancel training because of fatigue, and another mentioning abrupt steering of aircraft by deceased. P admitted having made both statements.

  • On cross-exam, P’s counsel asked “In the same letter, did you also say the most probable cause of the mishap was mechanical?” Before P answered, trial court sustained defense objection on the ground the question asked for P’s opinion.

  • Jury returned verdict for defendants. Circuit court reversed and remanded for new trial. Court here upholds CoA that DC erred in refusing to allow P to present more complete picture of the letter.

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.

    • Jury may have concluded from this that P did not believe his theory of mechanical failure and only made it up later for purposes of litigation.

  • 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.

  • In proposing FRE 106, Advisory Committee stressed “it does not in any way circumscribe the right of the adversary to develop the matter on cross-examination or as part of his own case.”

  • 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.

  • Concerns about FRE 106 are relevant, but the Court deems it unnecessary to resolve them here.

b. 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.

    • When silence is relied upon, the theory is that a person would, under the circumstances, protest the statement made in his presence, if untrue.

    • 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)


  • Following jury trial, D1 and D2 were convicted of armed robbery.

  • To link D1 and D2 to robbery, P relied on testimony of W1, who was serving time for conspiracy to commit bank robbery.

  • D2 challenges court’s admission, against her, of statements made by D1 to a conversation with W1. W1 stated that both 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.

  • Exchange was one to which silence of unresponsive accomplice gives consent, assuming they are present and conscious, heard and comprehended the statements.

  • D2 did not object on grounds of insufficient foundation under FRE 103(a)(1), nor request P elicit fuller preliminary information; and on cross-exam of W1, D2 did not attempt to rebut the foundation laid by P as to D2’s presence or understanding of D1’s inculpatory remarks.

  • Affirmed.

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


  • P was never paid for rock sold to Company1, and was unable to collect on judgment it obtained against Company1. Seeking to pierce corporate veil, P brought action against owners of company.

  • Court here reverses and remands for new trial as to D’s liability because of erroneous admission of a letter written by P’s counsel to D.

  • 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 had left the company, and had met with P’s counsel to discuss an entirely different matter.

    • 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.

    • And the counsel’s inability to testify, because it was representing P in the current case, is P’s fault.

c. 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)


  • P brought action on behalf of deceased, who died after being struck by truck driven by D.

  • P contend it was error to allow D at trial to put into evidence a 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.

    • Provision has been applied to allow in evidence 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.

  • P has also not demonstrated revelation of contents of letter was harmful to their case at trial.

d. 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. A substantial alternative trend therefore favors admitting statements related to a matter within the scope of the agency or employment.

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


  • Civil action for damages arising out of alleged attack by a wolf on child. Child was found beneath wolf in enclosure, with lacerations which could have been caused by climbing under fence but were inconsistent with wolf bite or claws. Neither defendant-employee nor defendant-corporation were present at the time of the accident, so neither had personal knowledge.

  • 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.”

  • Trial judge excluded all three for same reasons: D-E did not have any personal knowledge of facts, and so admissions (1) & (2) were based on hearsay; and admission (3) was also hearsay, and unreliable because of lack of personal knowledge. Jury returned verdict for defense.

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.

      • Advisory Committee Note discusses problem of “in house” admissions with reference to FRE 801(d)(2)(C) situations.

      • This is not a (C) situation because D-E was not authorized or directed to make a statement on the matter by anyone. But the rationale in that comment applied to this (D) situation, since D-E had custody of wolf and D-E’s conclusions were accepted as basis for action by principal.

    • FRE 805 and 403 do not mandate the introduction into FRE 801(d)(2)(D) of an implied requirement that declarant have personal knowledge of the facts underlying his statement.

  • (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.

    • Note to FRE 801(d)(2)(C) explains “in-house” statements are admissible.

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

    • No servant or agency relationship justifying admission of evidence of board minutes against D-E.

    • No conditions of FRE 801(d)(2) cover the claim that board minutes can be used against non-attending, non-participating employee.

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

    • TC clearly found evidence was not reliable, pointing out none of the statements were based on personal knowledge of declarant.

    • 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.

      • Relevant evidence is usually prejudicial to the cause of the side against which it is presented; the prejudice which concerns us is unreasonable prejudice.

    • 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.

  • Judgment reversed and remanded for new trial.

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


  • D brought action to recover money owed under shipping contract. P counterclaimed for damages resulting from D’s failure to timely deliver one of the shipments. Parties settled and dismissed D’s claim, but have not agreed on P’s counterclaims. District court entered summary judgment in favor of D on counterclaims.

  • P argues district court improperly excluded an internal company email authored by an employee of D and forwarded to P by a second employee of D.

    • District court excluded evidence on ground that P “makes no argument, nor did it present any evidence indicating the identity or job title of the employee” who authored the forwarded email.

    • P argues email is admissible as admission by party opponent under FRE 801(d)(2)(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.

      • Another piece of evidence listed author as an employee of D.

      • 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, and said “Yikes, please note we got screwed up,” thereby incorporating and adopting the contents of the original message.

      • Second employee was employee at time of email and contents of email were within scope of employment, so the admission fell under FRE 801(d)(2)(D).

  • Reversed and remanded.

e. 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)

  • While the broadened view of agency taken in FRE 801(d)(2)(D) might suggest wider admissibility of statements of co-conspirator, the agency theory of conspiracy is at best a fiction and ought not to serve as a basis for admissibility beyond that already established.

  • 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

  • While FRE 801(d)(2)(E) refers to a coconspirator, the committee understands it to carry forward the universally accepted doctrine that a joint venture is considered as a coconspirator for the purposes of this rule even though no conspiracy has been charged.

Levie, Hearsay and Conspiracy

  • Wigmore argues that since the interest of all conspirators is identical, an admission of one against his interest is against the interest of each.

  • Conspirator’s declarations are good to prove that some conspiracy exists and less trustworthy to show its aims and membership.

  • But the main reason for the exception is simply that there is great probative need for such testimony.

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


  • Informant working for FBI arranged to sell kilo of cocaine to C. C said he would arrange for others to distribute it. C told informant in taped phone conversation that C had a friend who had questions to ask. Informant and C later arranged sale to D, location, price. At designated parking lot, C placed cocaine into D’s car; both were arrested and cops found $20k in D’s car.

  • D challenged introduction of taped conversation.

  • Trial court found that, considering events in parking lot and C’s recorded statements, P had established by preponderance of evidence that a conspiracy between C and D existed, and that C’s statements over phone had been made during course of and in furtherance of conspiracy.

    • TC therefore held C’s out-of-court statements satisfied FRE 801(d)(2)(E) and were not hearsay.

  • Three questions on appeal:

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

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

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

Opinion (Rehnquist, CJ):

  • (2). 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.”

    • FRE 104(a) provides “Preliminary questions concerning … the admissibility of evidence shall be determined by the court.”

      • FRE nowhere defines the standard of proof for resolving these questions.

    • Court expresses no view as to:

      • Questions of conditional relevancy under FRE 104(b)

      • Circumstances in which burden of showing inadmissibility of proffered evidence is appropriately placed on non-offering party

      • Proper order of proof trial courts should follow in concluding the preponderance standard has been satisfied in an ongoing trial

  • (3). 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.

    • 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.

    • Glasser (1942) bootstrapping rule:

      • Such declarations are admissible over objection of alleged coconspirator, who was not present when they were made, only if there is proof aliunde that he is connected with conspiracy.

    • Nixon (1974) bootstrapping rule:

      • Declaration by one defendant may be admissible against other defendants upon a sufficient showing by independent evidence of a conspiracy among one or more other defendants and the declarant and if the declarations at issue were in furtherance of the conspiracy.

    • Both Glasser and Nixon were decided before Congress enacted FRE in 1975. FRE 104 clearly abolishes these bootstrapping rules.

  • (1). 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.

    • Trial court in this case considered independent evidence to determine reliability of declaration.

  • Affirmed.

Dissent (Blackmun, J):

  • Common-law co-con exemption was based upon agency principles.

  • These statements are much-needed by prosecutors, but are considered unreliable. And it is difficult for an innocent defendant to defend himself against them since, if he were not involved in the conspiracy, he would have no idea why the conspirator made the statement.

  • The independent-evidence requirement was one safeguard against this.

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).

f. 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)


  • Joint trial of petitioner (D1) and one Evans (D2) resulted in conviction of both by jury on postal robbery charge.

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

  • D2’s conviction was set aside on basis that D2’s oral confession to postal inspector should not have been admitted under Miranda.

  • D1’s conviction was upheld because 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 jury, despite instructions to contrary, 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.

  • In Delli Paoli, Court held it is “reasonably possible for the jury to follow” sufficiently clear instructions to disregard the confessor’s extrajudicial statement that his codefendant participated with him in committing the crime.

  • In Jackson v. Denno, the Court effectively repudiated Delli Paoli’s basic premise.

    • Jackson held a defendant is constitutionally entitled at least to have the trial judge first determine whether a confession was made voluntarily before submitting it to the jury for an assessment of its credibility.

    • Jackson expressly rejected the proposition that a jury, when determining the confessor’s guilt, could be relied on to ignore his confession of guilt should it find the confession involuntary.

    • Admonition to jury against misuse is intrinsically ineffective, since the effect of a nonadmissible declaration cannot be wiped from the brains of the jurors.

  • People v. Aranda explained that though Jackson was directly concerned with obviating any risk that a jury might rely on an unconstitutionally obtained confession in determining the defendant’s guilt, its logic extends to obviating the risks jury may rely on any inadmissible statements.

    • It is a denial of due process to rely on a jury’s presumed ability to disregard a codefendant’s confession implicating another defendant when it is determining that defendant’s guilt or innocence.

    • In joint trials, when the admissible confession of one defendant inculpates another defendant, the confession is never deleted from the case.

    • A jury cannot determine that A has committed acts with B and at the same time effectively ignore the inevitable conclusion that B has committed those same criminal acts with A.

  • Judge Learned hand was in favor of limiting instructions. Though he acknowledged they were not really capable of being completely effective, they “probably further, rather than impede, the search for truth.”

    • But this overlooks alternative means of achieving that benefit without at the same time infringing on the nonconfessor’s right of confrontation.

  • Another justification for joint trials in general is efficiency and judicial administration.

    • But judicial administration is not worth the price of fundamental principles of constitutional liberty.

  • Maintaining the jury system requires the belief that the jury will follow the court’s instructions. There are many circumstances in which this reliance is justified. Not every admission of inadmissible hearsay or other evidence can be considered to be reversible error unavoidable through limiting instructions. A defendant is entitled to a fair trial but not a perfect one.

    • But sometimes the risk the jury will not or cannot follow instructions is so great, and the consequences of failure so vital, that the practical and human limitations of the jury system cannot be ignored.

  • 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.

Dissent (White, J):

  • Where D2’s own confession possesses greater reliability and evidentiary value than ordinary hearsay, the codefendant’s confession implicating the defendant is intrinsically less reliable. This would cause the jury to regard it with suspicion, and should also make it easier for the jury to follow instructions to disregard it.

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.


  • V died after severe beating. D1 gave confession to police in which he said D1, D2, and D3 participated in the beating. D3 later died. D1 and D2 were tried jointly.

  • 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. Immediately after, the prosecutor asked “after D1 gave you that information, you subsequently were able to arrest D2, correct?” And officer responded, “that’s correct.”

  • When instructing the jury, trial judge specified the confession was evidence only against D1 and should not be used against D2. Jury convicted both.

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. Later, codefendant testified she was in the back seat of the car. Thus, in context, confession could have helped convince jury that codefendant knew about the murder in advance and therefore participated knowingly in the crime.

    • Court held this redacted confession fell outside Bruton’s scope and was admissible.

    • 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.”

    • But the Court expressed no opinion on the admissibility of a confession in which the codefendant’s name has been replaced with a symbol or neutral pronoun.

  • 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.

    • Unless the prosecutor wishes to hold separate trials or use separate juries or abandon the use of the confession, he must redact the confession to reduce significantly or eliminate the special prejudice the Bruton Court found.

  • Redactions replacing the name with a symbol so closely resemble Bruton’s unredacted statements that the law must require the same result.

    • Jury reacts the same way to an unredacted confession as to a confession redacted in this way.

    • The subject of the confession will be obvious from limiting instructions.

    • Reliability of the confession would depend on the blanks referring to the unnamed codefendant, since the prosecutor has been arguing all along that the two did crime together.

    • Redaction calls extra attention to the blank space.

    • Redacted statements are still grammatically accusatory, and so create the need for cross-examination which makes the subject of the accusation obvious.

      • Richardson statement, by contrast, did not directly accuse.

  • Richardson depends in significant part upon the kind of, not the simple fact of, inference.

    • Richardson’s inference involved statements that did not refer directly to the defendant himself and which became incriminating only when linked with other evidence introduced later at trial.

    • The inferences at issue here involve statements that, despite redactions, obviously refer directly to someone, often the defendant, and which involve inferences that a jury ordinarily, even were the confession the very first item introduced at trial.

  • Policy reasons motivating Richardson are not applicable here.

    • Redactions are sometimes impossible. But it is usually possible where a blank space is used.

    • Fear of mistrials could provoke prosecutors to abandon confessions that “incriminated by connection” if it were unpredictable whether the confession was barred by Bruton. But including the use of symbols or other indications of redaction within Bruton’s protections runs no such risk.

Dissent (Scalia, J):

  • Assumption jurors follow instructions is a pragmatic one representing a reasonable practical accommodation of interests.

    • State may introduce evidence of

      • defendant’s prior convictions for purpose of sentencing enhancement.

      • Statements elicited from defendant in violation of Miranda for the purpose of impeachment

    • And same applies to codefendant confessions.

  • Facially incriminating means incriminating independent of other evidence introduced at trial. To whom “deleted” refers is not incriminating independent of other evidence.

3. Spontaneous and Contemporaneous Statements


  • Unlike admissions doctrine, most exceptions to hearsay pertain to out-of-court statements thought to be particularly reliable.

  • Most apply regardless of whether declarant is also available to testify, and are codified in FRE 803. But evidence brought in under these exceptions may still be inadmissible under 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:

    • (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.

  • Exceptions phrased in terms of nonapplication of hearsay rule, rather than in positive terms of admissibility, so other possible grounds for exclusion may still apply.

  • Doesn’t matter whether or why the declarant is available/unavailable.

  • FRE 804 requirement of firsthand knowledge still applies.

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

    • Since unexciting events are less likely to evoke comment, decisions involving exception (1) are far less common

  • Time element:

    • (1) slight lapse is allowable

    • (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

  • Participation by declarant is not required

  • 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:

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

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

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


  • D found guilty by jury of conspiring to sell heroin to undercover FBI. D moved to set aside verdict, arguing hearsay had been improperly introduced.

  • FBI had negotiated purchase from C, in the presence of D and an informant. According to FBI’s testimony, D took sample of heroin and handed it to FBI. D was wearing black and white dress. Agents then arrested D and C. D testified she had nothing to do with the deal, and that C gave sample to FBI. C, who pleaded guilty, corroborated D’s account.

  • After testimony of C and D, P sought to introduce evidence: 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):

  • Excited utterance is not excluded by hearsay rule under FRE 803(2).

    • 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.

      • Here, the agent’s voice is exultant. The circumstances were such as would justify excitement.

    • The fact the excited witness was a cop does not preclude admissibility

      • [Though a cop would be more aware of evidence and knows the event is being recorded and expects an arrest to occur.]

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

    • United States v. Andrews: Tape was made by police officer recording impressions of what he saw looking through defendant’s window. CoA found recording was within exception for present sense exception, over defendant’s objection that this was self-serving hearsay recorded out of the presence of defendant.

      • Here are similar circumstances as Andrews, creating a similar guarantee of trustworthiness.

    • 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).

      • Here, agent spoke at first opportunity; declaration was as spontaneous as possible, taking place only two minutes and 25 seconds after the arrest. [This is plenty of time to come up with a fabrication.]

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


  • P brought civil rights action against cops who used excessive force against him. In appeal from jury verdict for D, P claims trial judge improperly 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. [This is a different standard from FRE 803(2) “while under stress.”]

  • 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. But the proponent failed to do so.]

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


  • D appeals from jury verdict convicting him for possession of firearm by convicted felon. D challenges district court’s ruling upon P’s motion in limine to exclude certain exculpatory statements made by D to police at time he was taken into custody.

    • 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 is a useless and misleading shibboleth embracing 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, the two being admissible in evidence under different principles.

    • 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.

    • This is a strange double (triple?) standard. Cops are excited when they arrest people (Obayagbona), yet the people being arrested are not. Moreover, what’s all this about 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

Hutchins & Slesinger, Some Observations on the Law of Evidence

  • Participants as well as bystanders may have their perceptions clouded by strong emotions. What emotion gains by way of overcoming the desire to lie, it loses by impairing the declarant’s power of observation.

  • The best evidence of all is a statement made in immediate response to an external stimulus which produces no shock or nervous excitement whatever.

4. 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.

a. Generally


  • 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.

Advisory Committee Note to FRE 803(3)

  • Exception (3) is essentially a specialized application of Exception (1).

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


  • Appeal from conviction of D1 and D2 for conspiracy to distribute heroin. R agreed to act as informant for DEA, leading DEA to D2 and eventually to D1. P built case around recorded phone conversations between R and D1.

  • 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 during period of time charged in indictment, D1 expressed to third parties that the government and other were trying to set him up, and that D2 had brought a DEA agent to him.

    • Trial judge excluded both as hearsay.

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).

  • Prosecution here suggests the court rely on analysis of probative value versus risk in light of other factors (including, most importantly, a motive to deceive).

    • The exceptions are indeed based on some assumption of guarantees of trustworthiness, but the scheme of the rules determines the issue by categories. If a declaration comes within a category, it is admissible without any preliminary finding of probably credibility.

b. The Hillmon Doctrine


  • 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.

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


  • P brought suit against three insurance companies for payment of life insurance policies on P’s husband (H). In each case, D refused to pay, denying that H was dead and alleging that H conspired with others to defraud D by pretending to be dead and hiding, and also alleging the body produced by P was in fact that of H’s acquaintance, W.

  • D introduced testimony of W’s sister (W-S) regarding a letter sent by W to W-S, and testimony of W’s fiancée (W-F) regarding a letter sent by W to W-F.

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

    • In the letter to W-F, W stated “I will leave Wichita in a week. I will go with H, who intends to start a sheep ranch. The route we intend to take covers Kansas, Indian Territory, Colorado, and Mexico.”

  • In both cases, P objected to W-F or W-S’s reading the contents of the letter and TC sustained objection.

  • Jury returned verdicts for P against each defendant separately.

Opinion (Gray, J):

  • [Judgments are reversed because TC allowed each of three defendants only one peremptory challenge during jury selection, where by statute each defendant was entitled to three peremptory challenges.]

  • It cannot be maintained that the letters were competent evidence as memoranda made in the ordinary course of business, since they are clearly not such.

  • But the letters should have been admitted as state-of-mind evidence.

    • State of mind or feeling can only be manifested to others by countenance, attitude, gesture, or by spoken or written sounds or words. The nature of the fact to be proved, and the evidence competent to prove it, is the same whether expressed by aspect or conduct, voice or pen.

      • 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.

  • Judgment reversed and remanded, with direction to set aside verdict and order new trial.

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


  • D appeals from conviction for murder of wife by poison, challenging admission of evidence:

    • Conversation in absence of D between V and her nurse. V asked nurse to go to D’s closet and bring bottle of whisky. V said she drank this whisky just before collapsing, and asked whether enough was left to test for poison, insisting the smell and taste was strange, then saying “D has poisoned me.”

    • V also told nurse “V was not going to get well; V was going to die.”

  • 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 challenged evidence. 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.

  • A limiting instruction to the jury on permissible purposes is insufficient here, since the risk of confusion is so great as to upset the balance of advantage.

  • 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.

    • Even statements of past sufferings or symptoms are generally excluded, though an exception is at times allowed when they are made to a physician.

  • 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.

    • Any other tendency was a filament too fine to be disentangled by a jury.

  • Reversed and remanded.

Advisory Committee Note to FRE 803(3)

  • Exclusion of “statements of memory or belief to prove the fact remembered or believed” is necessary to avoid the virtual destruction of the hearsay rule which would otherwise result from allowing state of mind, provable by a hearsay statement, to serve as the basis for an inference of the happening of the event which produced the state of mind.

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.

  • This memorandum explains the court’s reasoning.

Opinion (Young, J):

  • This case presents the question of whether the out-of-court statement of a victim-declarant of an intention to meet with a defendant on the victim’s murder can be admitted at trial as circumstantial evidence of the meeting. The question for the court is whether in enacting FRE 803(3), Congress codified in full the reasoning of Hillmon, or whether it sought to limit the case’s application.

  • 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.

  • Legislative history of FRE 803(3) only obfuscates the analysis.

    • Advisory Committee said “the rule of Hillmon, allowing evidence of intention as tending to prove the doing of the act intended, is, of course, left undisturbed.”

    • Report of the House Judiciary Committee said it “intends the rule to be construed to limit Hillmon so as to render statements of intent by a declarant admissible only to prove his future conduct, not the future conduct of another person.”

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

    • Fourth Circuit held a declarant’s statement of intent may be admitted against a non-declarant only when there is independent evidence connecting the declarant’s statement with the non-declarant’s conduct.

      • Similarly, Second Circuit held declarations of intentions or future plans are admissible against a nondeclarant when they are linked with independent evidence that corroborated the declaration.

    • To the contrary, Ninth Circuit held statements of a declarant’s intent are admissible under FRE 803(3) to prove subsequent conduct of a person other than the declarant without corroborating evidence.

      • Ninth Circuit explained, “inference from a statement of present intention that the act intended was in fact performed is nothing more than an inference. The possible unreliability of the inference to be drawn from present intention of the declarant is a matter going to the weight of the evidence which might be argued to the trier of fact.

  • 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.

    • Had Congress wished to do otherwise, it knew how to draft such language and presumably would have done so.

5. Injury Reports


  • Codifying common law decisions, FRE 803(4) exempts from the hearsay rule a broad range of statements made to physicians or others for the purpose of medical diagnosis.

  • Controversially, 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. Statements to hospital attendants, ambulance drivers, or even members of the family might be included.

  • Conventional doctrine excluded from the hearsay exception statements to a physician consulted only for the purpose of enabling the physician to testify. While these were not admissible as substantive evidence, the expert was allowed to state the basis of his opinion, including statements of this kind.

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.

    • A month after the first accident, P-H claimed to have re-injured his ankle by slipping on some grease. The only potential witness claimed he was present but did not see P-H fall and that P-H had in fact previously advised him of a plan to fake such an accident.

  • Because of his ankle’s worsening condition, P-H consulted a Dr1. As part of exam, P-H provided doctor with history of injury, including description of incidents above. Dr1 referred P-H to Dr2, who again asked P-H for history of injury to ankle.

    • P-H ended up needing surgery on the ankle, developed infections and died of a heart attack a year later.

  • P sued D for negligence. District Court granted summary judgments to D on ground there was no admissible evidence P-H had actually been injured on the platform.

    • P contends evidence should have been admitted under FRE 803(4).

Opinion (Thornberry, J):

  • Admissibility of a statement made to one’s physician turns on the guarantee of the absent declarant’s trustworthiness.

  • Therefore, 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.

    • [This suggests as relevant not only what the declarant believed was pertinent, but also what the doctors believed.]

6. Recorded Recollection


  • The doctrine of “past recollection recorded” allows the record, in certain cases, to be introduced into evidence—or, in federal courts and many states, read to the jury—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.

    • A traditional 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)

  • Principal controversy attending the exception has centered not upon the propriety of the exception itself, but upon the question whether a preliminary requirement of impaired memory on the part of the witnesses should be imposed.

    • 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)


  • Contract action to recover labor and materials alleged to have been furnished to D, where P won at trial.

  • 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.

    • Statement contained more than a hundred items.

    • Following use in aiding testimony, P offered it in evidence. D objected.

Opinion (Spalding, J):

  • P now contends the statement contained business entries admissible under another exception.

    • But the lower judge made no preliminary finding of the statutory prerequisites, and there was no attempt to bring the statement within the statute. Rather, counsel and the judge dealt with it as a memorandum which aided testimony.

  • 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 and was treated as such by counsel and the trial judge.

  • 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 across state lines.

  • To prove specific chattels involved, P relied on testimony of W. To prove value, P relied on testimony of expert (E).

    • W testified she made notes while chattels were being moved from house, and later copied those notes on her typewriter. Only one of the original notes was produced.

      • P sought to have W testify using the typewritten notes for the purpose of refreshing recollection. Though D’s objection was overruled, P submitted to W lists of chattel taken from copy of indictment, but from which dates and values had been deleted.

      • W was permitted to read the lists aloud.

    • E was allowed to do the same thing as W.

  • D argues lists should not have been used:

    • Not made by witnesses at or shortly after the time of the transaction while the facts were fresh in memory

    • W read the lists as proof of the actual articles loaded on the vehicles.

  • P argues:

    • Witnesses gave their independent recollection, which is admissible, albeit refreshed, because it is the recollection and not the writing which is the evidence.

    • Where the witness has an independent recollection, anything may be used to stimulate that recollection with regard to source or origin.

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.

  • Difference has a demonstrable effect upon the method of proof:

    • 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 present recollection revived, witness relates his present recollection, and under oath and subject to cross-exam asserts it is true.

  • 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.

7. 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.

a. Generally

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)


  • Appeal from conviction for sexual assault. D presented evidence of alibi: two witnesses (DW) employed by B, who claimed they were at home with D at time of incident due to employee strike at B.

  • In rebuttal 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.

  • D argues records do not meet common-law standards for introduction of business records.

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.

  • Common law requirements have been criticized:

    • Often, all participants in record cannot be identified or expected to have helpful recollection

    • Places on offering party substantial burden unlikely justified by benefits.

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

    • PW was custodian of records responsible for administering payroll.

    • Vouchers made by DW and approved by DW’s supervisors was the type of information upon which PW’s performance of duties were based.

      • Similar to where custodian of records makes entries on the basis of information given by others.

    • That vouchers were made prior to payroll does not violate FRE 803(6).

      • Allows memorandum of events made at or near the time by, or from information transmitted by, a person with knowledge.

      • PW testified: although vouchers were made prior, PW would be notified before payroll in the event any information in voucher had changed. No such change was transmitted.

  • Affirmed.

Advisory Committee Note to the 2000 Amendment to FRE 803(6)

  • Foundation requirements of 803(6) can be satisfied under certain circumstances without the expense and inconvenience of producing time-consuming foundation witnesses.

b. Qualifying “Businesses”

Report of the House Judiciary Committee (1973)

  • Though Court submitted a rule allowing record of any regularly conducted activity, House qualified this, adding requirements:

    • 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)

  • Adopts House’s additional requirements.

  • Changes definition of business to include 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)


  • Appeal from tax court’s finding D underreported income. D worked as card dealer at casino where dealers pooled tips and divided them equally.

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

    • Coworker had poor reputation for honesty and was fired by casino for unsatisfactory work, and had been convicted with wife of receiving stolen property.

    • 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.

      • D argues diary was personal record, not a record of the business enterprise involved (the casino). But the diary, though personal to Coworker, was kept “in the course of Coworker’s own business activity, occupation and calling.”

    • 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.

      • Here, Coworker’s wife testified the records were usually made after shifts, when entries were not made immediately they were later copied from a record in coworker’s wallet, etc.

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

      • Contained Coworker’s own financial records, and no reason was offered for him to have lied to himself.

      • Other entries corresponded with casino’s payroll records.

      • Reliability not tarnished by fact Coworker himself underreported tip income for taxes.

      • Doesn’t matter that Coworker’s wife, rather than Coworker, testified to lay foundation regarding regularity of entries.

    • D argues testimony of Coworker as custodian of diary was required because only Coworker could speak to his reliance on records kept there. But court has no reason to believe Coworker did not rely on diary, so court will not find lower court abused discretion.

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


  • Appeal from conviction for heroin trafficking conspiracy.

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

    • Ledger contained records of drug transactions implicating D.

    • D argues ledger improperly admitted because records not kept in course of regularly conducted business activity and were untrustworthy.

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)


  • Case arising out of train accident.

  • 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.

    • P’s objection to statement’s introduction was sustained.

Opinion (Douglas):

  • Statement was properly excluded.

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

      • Otherwise, lawyers would be able to regularly create admissible hearsay records for the purpose of litigation.

    • 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)


  • P appeals from judgment for D railroad company. P claimed he was injured by faulty brake while working at D. D sought to rebut P’s allegations with evidence brake functioned immediately after accident.

  • D offered into evidence a “personal injury report” and an “inspection report.”

    • Talbott testified personal injury report was signed by him and prepared under his supervision. Information was given to him by Campbell. Talbott confirmed authenticity of record and testified he was regularly required to make such reports.

    • Halderman identified inspection report prepared by Campbell and Zuchero. Report based on inspection conducted less than four hours after the accident.

    • Campbell and Zuchero were unavailable to testify.

  • 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.

  • Affirmed.

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.

    • Previously entries in the form of opinions were not encountered in traditional business records, but now more common with respect to medical diagnoses.

  • Absence of routineness raises lack of motivation to be accurate.

    • Direct introduction of motivation, as in Palmer, is disturbing since absence of motive to misrepresent has not traditionally been a requirement of the rule; that records might be self-serving has not been a ground for exclusion.

      • If a report is offered by the party at whose instance it was made, it has been held inadmissible. Otherwise if offered by the opposite party.

    • Some decisions have been satisfied as to motivation if report is made pursuant to statutory duty.

  • Rule proceeds from base that records made in course of regularly conducted activity will be admissible but subject to exclusion if the sources of information or other circumstances indicate lack of trustworthiness.

    • 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 is broad, including any means of storing information other than the conventional words and figures in written or documentary form. It includes but is not limited to electronic computer storage.

d. 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)


  • P appeals from adverse judgment in suit against employer for sex discrimination.

  • P challenges trial court’s refusal to exclude 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.

    • If both source and recorded, as well as every other participant in chain producing the record, are acting in regular course of business, the multiple hearsay is excused.

    • If the source of the information is an outsider, as here, FRE 803(6) does not by itself permit admission. Statement must fall within another exception.

    • FRE 805 requires all levels of hearsay satisfy exception hearsay requirements before statement is admissible.

  • 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.

    • Highly probable admission of reports did not affect Wilson’s substantial rights.

    • Sister was called to testify and denied making the statements.

    • Abundant other evidence casting doubt on P’s credibility and contradicting her version of events.

e. 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.

  • While probably not hearsay as defined in FRE 801, it is specifically treater here in order to set the question to rest.

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.

  • Affirmed.

8. Public Records


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

  • Public records exception in fact consists of three separate exceptions.

  • 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.

  • In criminal cases, remember Confrontation Clause.

  • [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.]

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)

  • Justification for exception:

    • Assumption a public official will perform his duty properly and unlikelihood he will remember details independently of record.

  • 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)


  • Civil case arising out of Navy airplane crash. Defense presented evidence “JAG Report”, which was completed by Navy investigator during six weeks following accident.

    • Report organized into sections labeled “findings of fact,” “opinions,” and “recommendations.”

    • “Findings of fact” included statements like: “At time of impact, engine was operating but operating at reduced power.”

    • “Opinions” included: “It is impossible to determine exactly what happened” and “Above sequence of events was most likely, but another cause was possible…”

  • Trial judge initially limited admissibility to only factual findings, but then reversed itself and ruled certain of report’s conclusions would be admitted, including most of the “opinions” section.

    • Jury returned verdict for defendants.

  • Court of Appeals reversed and remanded for new trial. CoA agreed with plaintiff FRE 803(8)(C), which excepts investigatory reports form the hearsay rule, did not encompass evaluative conclusions or opinions.

    • CoA found itself bound by Smith v. Ithaca Corp.

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.

    • No question here of any distinction between law and fact, so Court does not here express opinion on whether legal conclusions contained in an official report are admissible as findings of fact under this rule.

  • Here, Court sides with broader interpretation of FRE 803(8)(C).

    • Narrow interpretation of Smith v. Ithaca:

      • Factual findings did not encompass opinions or conclusions.

    • Broader interpretation 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.”

  • Language of rule: Does not create a distinction between “fact” and “opinion.”

    • Term “factual findings” does not mean merely “facts” (as opposed to “opinions” or “conclusions”)

    • Rule does not state “factual findings” are admissible, but that “reports setting forth factual findings” are admissible.

  • Legislative history: No clear answer to how the Rule’s language should be interpreted.

    • House said no evaluations or opinions; Senate said assume it’s all in unless lacking trustworthiness.

    • Senate interpretation accords with wording of rule and Advisory Committee notes.

  • Advisory Committee comments: Contain no mention of dichotomy between statements of fact and opinions or conclusions.

    • Advisory Committee commentary is particularly relevant because Congress did not amend the Committee’s draft in any way touching upon the question here.

    • Took note of various federal statutes that made certain kinds of evaluative reports admissible in evidence. All of these examples are reports that stated conclusions.

    • Committee’s solution as to admissibility of evaluative reports has two steps:

      • First, assume admissibility

      • Second, ample provision for escape if sufficient negative factors are present

    • Primary provision for escape is the trustworthiness inquiry in the final clause of the rule.

      • Other safeguards built into other portions of FRE, such as relevance and prejudice.

      • Ultimate safeguard is opponent’s right to present evidence tending to contradict or diminish the weight of those conclusions.

  • Analytical difficulty: Difficult to draw a line between fact and opinion, since statements of fact can be seen as highly specific forms of opinions.

    • Rule’s limitations and safeguards are not in fact/opinion dichotomy, but lie elsewhere:

      • First, requirement that reports contain factual findings bars admission of statements not based on factual investigation.

      • Second, trustworthiness provision requires court to make determination as to whether the report or any portion is sufficiently trustworthy to be admitted.

  • General approach: FRE relaxes traditional barriers to opinion testimony.

    • FRE 702-705 on expert testimony. FRE 701 on lay testimony.

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):

  • Question presented is whether those affidavits are testimonial, rendering the affiants “witnesses” subject to the defendant’s right of confrontation under the Sixth Amendment.

    • 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.

      • 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 analysts were not subject to confrontation because they are not “accusatory witnesses,” i.e., they do not directly accuse petitioner of wrongdoing; their testimony is inculpatory only when taken together with other evidence.

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

  • P argues analysts are not “conventional” witnesses of the sort in Walter Raleigh’s trial.

    • True, they are not. But that case identifies the core of the right to confrontation, not its limits.

  • P argues there is a difference between testimony recounting historical events, which is prone to distortion and manipulation, and testimony here, which is the result of neutral, scientific testing.

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

    • Scientific testing may not be as neutral or reliable as P suggests.

      • Confrontation may weed out fraudulent or incompetent analysis.

  • 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.

    • Coroner’s inquest was admissible at common law of England, but that aspect of common law was not received.

    • Clerks certificate was traditionally admissible, but only for narrowly circumscribed purposes of transcription, rather than to interpret or to certify the content.

      • Clerk attesting to failure to find a document would be most analogous to this case; but even that would be subject to confrontation.

  • P argues D could have subpoena’s analysts but chose not to do so.

    • The burden is on P, not D.

  • P argues it is a necessity of trial and the adversary process.

    • Necessity of trial doesn’t negate the Constitutional right.

    • Little evidence of an unbearable burden on trial anyway.

    • Strategic considerations weigh against obstructionism by D.

      • Unlikely to insist on live testimony that will highlight rather than cast doubt on analysis.

      • D attorney will not want to antagonize judge.

Dissent (Kennedy):

  • “Analyst” doesn’t have an obvious meaning for the Sixth Amendment, so now the Court will have to elaborate it.

    • Too many people can be considered an “analyst,” and if all are witnesses who must appear in court, it will be impossible to use scientific tests.

  • D was obstructing, since he had the opportunity to challenge the test, but chose not to.

  • This rule does not serve either purpose of confrontation: impress upon witnesses the gravity of their conduct; and alleviate the danger of one-sided interrogations.

  • Neither “analyst” nor “testimonial” is in the language of the Constitution. The Opinion goes wrong because it relies on the concept of “testimonial,” which itself is derivative of witnesses.

    • A copyist would have been admitted during the Framer’s Era, and the analyst is akin to the copyist.

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.

    • P introduced certification as a business record, over D’s objection.

    • State Supreme Court held surrogate testimony adequate to satisfy CC in this case because the original analyst “simply transcribed the result generated by the machine.”

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.

  • Most witnesses testify to their observations or factual conditions, and may record on the spot what they observed.

    • The SSC’s reasoning would allow anyone familiar with the relevant technology to testify in place of the actual observer.

  • Comparative reliability of testimonial report does not overcome the Sixth Amendment bar.

  • Surrogate testimony could not convey as much as the original analyst:

    • Surrogate testimony could not show what analyst knew about the underlying events, lies or lapses, or incompetence.

  • Text of the Sixth Amendment does not suggest any open-ended exceptions to be developed by courts.

  • While the certification was unsworn, absence of an oath is not dispositive in determining if a statement is testimonial.

    • If so, it would have the perverse effect of rendering inadmissible only sworn statements while leaving formal but unsworn statements perfectly ok.

    • Formalities attending the report, including legal instructions and signature on form, are more than adequate to qualify the analyst’s assertions testimonial.

  • Would not place undue burden on prosecution.

    • P could avoid CC problems when original analyst is unavailable by ordering the sample to be retested.

    • Notice-and-demand procedures render otherwise hearsay forensic reports admissible while specifically preserving D’s right to demand the prosecution call the analyst.

    • Before Crawford, common prosecutorial practice was to call analyst to testify.

Concurring (Sotomayor):

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

    • E.g., did not suggest the primary purpose was to provide D with medical treatment.

  • 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.

    • Would be different case if, e.g., a supervisor who observed an analyst conducting the test testified about the results.

  • 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).

    • Would face a different question if determining constitutionality of allowing expert witness to discuss other’s testimonial statements if the testimonial statements were not themselves admitted as evidence.

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

Dissent (Kennedy):

  • Where a surrogate testified, Requiring P to call the technician who signed the form and recorded the results is a hollow formality.

  • Instead of freeing the CC from reliance on hearsay doctrines, the Court has now linked it with hearsay rules at their earliest and least-refined formulations.

  • Will impose undue burden on prosecution.

9. 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

  • Based on theory that hearsay which is admittedly not equal in quality to testimony of the declarant on the stand may nevertheless be admitted if the declarant is unavailable and if his statements meet a specified standard.

  • Former testimony does not rely on a set of circumstances substituting for oath and cross-exam, since those were present in fact.

    • Only missing part is presence of trier and opponent for demeanor evidence. This is lacking in all hearsay evidence.

  • 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)


  • D convicted of participating in investment fraud scheme. D argues trial court abused discretion when it 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.

    • Here, D contends he was unavailable because he invoked his Fifth Amendment privilege against self-incrimination.

  • 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 testimony, 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 alleged her husband’s mesothelioma was caused by exposure to asbestos during his employment at a shipyard.

  • D produced an expert to testify D’s product didn’t contain asbestos. Over D’s objection, 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):

  • Expert2’s testimony was offered to discredit D’s defense by revealing D’s previous expert had different and contradictory opinion.

  • D argues it was hearsay. P argues either it was not hearsay under FRE 801(d)(2)(C) or it was admissible hearsay under FRE 804(b)(1).

  • 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)


  • P brings products liability claims regarding exposure to asbestos manufactured by D. Appeal from jury verdict for D at trial.

  • P urges trial court erred in excluding a 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.

    • Unlike the old, narrow sense of privity.

  • 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. Reversed and remanded for retrial.

Weissenberger, The Former Testimony Hearsay Exception

  • Privity conception of predecessor in interest:

    • Predecessor from whom the present party received the right, title, interest or obligation at issue in the current litigation.

  • Some courts have preferred to construe FRE 804(b)(1) in the strict, privity sense because of fairness considerations. Others have not focused on legislative history or expressly followed Lloyd but have excluded prior testimony evidence on the basis of absence of the appropriate motive.

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


  • D was convicted for RICO act violations in alleged scheme to rig bidding on large construction projects.

  • W had testified before grand jury, under a grant of immunity, that W had never participated in the scheme, suggesting it does not exist.

  • At trial, P introduced two contractors to show W did in fact participate in scheme, along with corroborating documents.

  • To counter P’s evidence, D subpoenaed W in hope they would provide the same exculpatory evidence they had presented to grand jury. Instead, W invoked Fifth Amendment privilege against self-incrimination and refused to testify.

  • D requested trial court to admit transcripts of grand jury testimony, but trial court refused. Trial court held that government did not have a similar motive in questioning a W in investigatory stages 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):

  • Question is whether FRE 804(b)(1) permits criminal defendant to introduce grand jury testimony of a witness who asserts the Fifth Amendment privilege at trial.

  • Similar motive is indeed required. The Court cannot alter evidentiary rules simply because litigants might prefer different rules in a particular class of cases.

    • Complex scheme of exceptions in rules indicates Congress made careful judgments about what may and may not come in.

    • D argues adversarial fairness requires inferring FRE 804(b)(1) contains implicit limitations.

      • But this does not get past the plain language of the text.

    • D argues departure is require to prevent litigants from presenting only part of the truth: though parties may enjoy various testimonial privileges, they can forfeit these by opening the door to certain subjects

      • 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.

    • D argues adversarial fairness may prohibit suppression of exculpatory evidence produced in grand jury proceedings.

      • Dennis v. United States: it is rarely justifiable for the prosecution to have exclusive access to relevant facts.

      • D argues government can use this tactic to develop evidence in a one-sided manner. If W inculpates D during grand jury proceedings, P immunizes W and calls him at trial. If W exculpated D, P refuses to immunize him and attempts to exclude the testimony as hearsay.

      • But Dennis did not involve a question about admissibility of evidence; it concerned only the need to disclose a transcript to the defendants. And Dennis was based on the specific language of the FRCrimP, not adversarial fairness; the FRE here contains specific language contrary.

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

    • P argues district court found that it did not and Court should not review its factual determination. P also argues prosecutor will generally not have the same motive in grand jury testimony versus trial: prosecutor must maintain secrecy and might therefore refrain from confronting grand jury witness with contradictory testimony; and might also not know which issues will be important at trial and therefore may not develop evidence effectively.

    • D argues trial court’s ruling is a matter of law, rather than fact, since it held essentially a prosecutor’s motives always differ. D also argues the transcripts show P thoroughly attempted to impeach W and there was no secrecy concern.

    • 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.

Concurrence (Blackmun):

  • Because similar motive does not mean identical motive, it is an inherently factual inquiry. It depends in part on similarity of underlying issues and on the context of the grand jury questioning.

    • It cannot be said prosecution either always or never has a similar motive.

Dissent (Stevens):

  • W’s testimony was totally inconsistent with P’s theory of bid rigging, so before the grand jury P had precisely the same interest in establishing that W’s testimony was false as it had at trial.

  • A party might decide for tactical reasons not to engage in a rigorous cross-examination, or to engage in no cross-exam. They still had the opportunity to do so. They also may have had a similar motive to do so, despite having chosen not to act on that motive.

10. Dying Declarations


  • Like business records, this exception is justified on grounds of reliability and practical necessity.

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.”

    • Wife was very ill, but the statement was made during a temporarily recovery. She did not know she was dangerously ill, still less that it was hopeless. It seemed she had greatly improved. Only a week afterwards was there a relapse which led to death.

  • P attempts to admit statement as a dying declaration.

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.

  • 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 form is not decisive: the declaration can be conclusory and needn’t state antecedent steps. E.g., “he murdered me” is fine, without having to say how.

    • 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)


  • D appeals conviction for bank robbery, seeks to admit hearsay evidence under the dying declaration exception.

  • 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. Exception was justified by exceptional need for evidence in homicide cases.

  • 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.

Report of the House Judiciary Committee

  • Since dying declarations are not among the most reliable forms of hearsay, Committee limited their admissibility in criminal cases. But Committee permitted expansion to civil actions and proceedings where the stakes do not involve imprisonment, though it could lead to forum shopping.

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


  • D convicted of negligent homicide and attempted aggravated robbery. D allegedly helped set up robbery by making appointment to bring two vases to antiques store for V appraise.

  • On morning of shooting V telephoned wife and said “I believe the woman with the vases is coming in.” An hour later, neighbors of store heard crash and ran in. V told them “I’ve been shot in the heart.” Cops arrived before ambulance. Victim said assailant was a “young black male,” and told cop “The lady with the vases’ information is on the desk.” Officers found paper bearing D’s name and driver’s license number. V said “I know the lady is connected to the shooting.”

Opinion (Wade):

  • Victim’s statement that he “knew” that “the lady with the vases” was involved in the offense qualifies as testimonial. (D does not challenge other statements.)

    • Comments 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.

  • D argues statement should have been excluded because it is an opinion rather than assertion of fact.

    • The prevailing standard at common law permitted an opinion or conclusion as to the identity of the assailant where it was determined that such a statement was reasonable in view of the surrounding circumstances. 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.`

11. 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)

  • Circumstantial guaranty of reliability is the assumption persons do not make statements damaging to themselves unless satisfied for good reason they are true.

  • 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.

  • Requirement of corroboration is designed to circumvent fabrication of exculpatory confessions by third persons.

    • Ordinarily the third-party confession is thought of in terms of exculpating the accused, but this is not always the case: it may include statements implicating the accused, and under the general theory of declarations against interest they would be admissible as related statements.

  • Whether a statement is in fact against interest must be determined from the circumstances of each case.

Report of the House Judiciary Committee

  • Removed category of statements tending to make declarant object of hatred, ridicule, or disgrace.

  • Required corroborating circumstances out of concern for exculpatory statements against penal interest of declarant.

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


  • Action to recover championship belts in possession of D, allegedly stolen from P and sold to D by B. Appeal from jury verdict in favor of P.

  • D claims trial court should not have admitted testimony about a purported apology from B. Over D’s objection, trial court permitted witnesses including P and P’s family members to testify B apologized in their presence for stealing the belts.

  • Trial court allowed testimony on theory that out-of-court statement described an existing state of mind or emotion under FRE 803(3).

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.

    • Here, testimony was not limited to the fact B had expressed remorse, but also included the fact he apologized for and asked forgiveness for stealing the belts. It was offered not only that he was remorseful, but also that he had stolen the belts.

    • FRE 803(3) expressly prohibits use of then-existing state of mind in that way, and so the testimony was not admissible under FRE 803(3).

  • 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 not present at trial, but that is not sufficient. FRE 804(a) lists five ways a declarant can be unavailable. Only (5) is relevant here: proponent of the statement has been unable to procure the declarant’s attendance or testimony by process or other reasonable means.

      • 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 appeals from conviction for conspiring to import cocaine into US. 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.

    • Under FRE 804(b)(1), an unavailable witness’s testimony from a prior hearing or proceeding is not barred by the hearsay rule if the party against whom the testimony is now offered had opportunity and similar motive to develop testimony by examination.

      • Both sides concede B is unavailable, since B invoked Fifth Amendment right against self-incrimination.

    • Under FRCrimP 11, purpose of plea proceeding is to ensure that the defendant’s plea is knowing, voluntary, and grounded on a proper factual basis. Plea proceeding is conducted solely by the trial judge. Government’s role at plea proceeding is quite limited and does not include the opportunity to engage in the type of examination contemplated by FRE 804(b)(1).

    • Court here also agrees with other circuits that government does not have the same motive to examine the defendant at a plea hearing as it does at other proceedings.

    • Here, government had no reason to cross-examine B at his plea allocution about his supervision over D. That B’s plea colloquy may have included misstatements or inaccuracies did not preclude it from providing an adequate factual basis for the plea.

  • 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.

      • Rests on the notion that reasonable people, even reasonable people who are not especially honest, tend not to make self-inculpatory statements unless they believe them 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.

      • Court has recognized statements from a guilty plea allocution can be admitted under FRE 804(b)(3), but their admission is strictly circumscribed by the SCOTUS holding in 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.

      • During plea allocution, B made conflicting assertions about D’s role in conspiracy. And B’s motives for exculpating D were highly suspect, since B was aware he could be called to testify at D’s trial and may have been attempting to avoid testifying against one of his co-conspirators.

12. 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, in light of the seriousness of the behavior FRE 804(b)(6) seeks to discourage.

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.

    • Trial court admitted statements under provision of California law (CEC §1370) that permits admission of out-of-court statements describing infliction of threat of physical injury on declarant when declarant is unavailable to testify at trial and prior statements are deemed untrustworthy.

  • P does not dispute here, and Court accepts without deciding, that V’s statements were testimonial. But P maintains Sixth Amendment does not prohibit prosecutors from introducing statements because an exception to confrontation guarantee permits use of a witness’s unconfronted testimony if judge finds, as it did in this case, that defendant committed a wrongful act that rendered the witness unavailable to testify at trial.

Opinion (Scalia):

  • Crawford held that the Confrontation Clause is most naturally read as a reference to the right of confrontation at common law, admitting only those exceptions established at the time of the founding. Question is whether the theory of forfeiture by wrongdoing is a founding-era exception to the confrontation right.

    • First form of unconfronted testimonial statements admitted at common law even was dying declarations (made by speaker at bring of death and aware they were dying).

      • V did not made the statements admitted at D’s trial while she was dying, so her statements do not fall within this exception.

  • Second common-law doctrine was 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.

    • King v. Woodcock: D accused of killing wife. Even in the case of a great crime, inquiry must proceed under law. Judge held aside from testimony given at trial, two other species are admitted by law: dying declaration of a person who has received a fatal blow; and examination of a prisoner, and the depositions of the witnesses who may be produced against him.

  • P and dissent note common-law authorities justified wrongful-procurement rule by invoking the maxim that a defendant should not be permitted to benefit from his own wrong.

    • But the “wrong” and “evil Practices” to which these statements referred was conduct designed to prevent a witness from testifying.

    • Absence of such a rule would create intolerable incentives for a D to bribe or kill witnesses; but there is nothing mysterious about court’s refusal to carry the rationale further. The notion that judges may strip defendant of a constitutional fair trial right on the basis of prior judicial assessment that defendant is guilty as charged is akin to dispensing with a jury trial because defendant is obviously guilty.

  • P’s proposed exception was not established at the time of founding; it has not even been established since the founding.

    • American courts before 1985 never invoked forfeiture outside the context of deliberate witness tampering.

    • FRE 804(b)(6) codified the forfeiture doctrine, and it applies to “wrongdoing that was intended to, and did, procure unavailability of declarant.”

    • Every commentator has concluded intent is required.

  • In sum, interpretation of common-law forfeiture rule is supported by:

    • (1) most natural reading of language used at common law;

    • (2) absence of common-law cases admitting prior statements of forfeiture theory when defendant had not engaged in conduct designed to prevent witness from testifying;

    • (3) common law’s uniform exclusion of unconfronted inculpatory testimony by murder victims (except testimony given with awareness of impending death) where defendant was on trial for killing victim but was not shown to have done so for purpose of preventing testimony;

    • (4) subsequent history in which broad forfeiture theory has not been applied.

    • (1), (2) and (4) are highly persuasive. (3) is conclusive.

  • Dissent claims a forfeiture rule which ignores Crawford would be particularly helpful to women in abusive relationships.

    • Not as helpful as dissent suggests, since only testimonial statements are excluded by the Confrontation Clause: statements to friends and neighbors or physicians would be excluded, if at all, only by hearsay rules, which are free to adopt the broader theory of forfeiture.

    • Court cannot adopt one Confrontation Clause for all other crimes, but a special improvised one for those frequently directed against women.

  • But the domestic violence context is relevant for a separate reason: 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.

    • Earlier abuse or threats of abuse intended to dissuade victim from resorting to outside help, if designed to stop victim from reporting abuse to police or cooperating with criminal investigation, could render victim’s prior statements admissible under the forfeiture doctrine, as would be evidence of ongoing criminal proceedings at which the victim would have been expected to testify.

  • State courts here did not consider intent of defendant, and is free consider it on remand.

Concurrence (Thomas):

  • Statements like those made by the victim do not implicate the Confrontation Clause. [Thomas focuses on indicia of solemnity.]

Concurrence (Alite):

  • Unclear out-of-court statement at issue here fell within the Confrontation Clause in the first palce.

Concurrence [in the relevant part] (Souter):

  • Today’s understanding of domestic abuse had no apparent significance at the time of the Framing.

  • Two things support Court’s understanding:

    • Substantial indication Sixth Amendment was understood to require some degree of intent to thwart the judicial process before thinking it reasonable to hold the confrontation right forfeited; otherwise the right would in practical terms boil down to a measure of reliable hearsay, a view rejected in Crawford.

    • Element of intention would normally be satisfied by intent inferred on the part of the domestic abuser in the classic abusive relationship, which is meant to isolate the victim from outside help, including the aid of law enforcement and the judicial process.

      • If evidence for admissibility shows continuing relationship of this sort, it would make no sense to suggest the oppressing defendant miraculously abandoned the dynamics of abuse the instant before he killed his victim.

  • The Court’s conclusion thus fits the rationale equity requires and historical record supports.

Dissent (Breyer):

  • At time of Founding, forfeiture rule was designed to assure prisoner “shall never be admitted to shelter himself by such evil practices of the witness, that being to give him advantage of his own wrong.”

    • The evil practice is murdering the witness; the advantage is thereby preventing the witness by testifying. [Scalia says evil practice here refers to preventing testimony.]

  • Defendant here knew murdering ex-girlfriend would keep her from testifying; that knowledge is sufficient to show intent the law ordinarily demands.

    • With few exceptions not here relevant, law holds individual responsible for consequences known likely to follow just as if the individual had intended them.

    • The law does not often turn matters of responsibility upon motive/purpose, rather than intent. The rule of forfeiture should not be an exception to this principle.

13. 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.

Advisory Committee Note to FRE 807

  • Combines contents of FRE 803(24) and FRE 804(b)(5). No change in meaning is intended.

Weissenberger & Duane, Federal Rules of Evidence

  • Compromise between competing goals of allowing flexibility and ensuring some degree of certainty for trial preparation.

  • 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)


  • D appeals convictions for drug offenses.

  • At trial, P introduced records of company showing sales of hydriodic acid, a component of meth, to D.

    • Owner and operator of company died before trial began.

    • Trial court held records admissible under either business records FRE 803(6) or residual exception FRE 807.

    • Detective for state drug task force was determined to be qualified witness under FRE 803(6) and permitted to law foundation upon which records were admitted.

Opinion (Siler): [majority approach]

  • Evidence was not admissible under FRE 803(6).

    • W 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. Other than a few conversations with the owner, there was no evidence W was 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.

    • Narrow interpretation: if proffered evidence fails to meet requirements of FRE 803 exception, it cannot qualify for the residual exception.

    • 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.’

    • Thus, for example, although grand jury is arguably former testimony and thus specifically covered and inadmissible under FRE 804(b)(1), courts have mistakenly held grand jury testimony of unavailable witness is admissible under residual exception when it bears equivalent circumstantial guarantees of trustworthiness. [Cites numerous Circuit Court decisions, where SCOTUS denied certiorari.]

  • 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.

    • Accords with plain language, legislative intent.

    • Detractors call this the “near miss theory”: a near miss under a specified exception renders the evidence inadmissible under the residual exception.

    • 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.

  • Majority’s holding makes it unnecessary to ever call a sponsoring witness to establish the admissibility of business records so long as there is no indication the records are not reliable.

    • Unclear how business records introduced without testimony of qualifying sponsoring witness can be said to have circumstantial guarantees of trustworthiness equivalent to those that exist when a qualified sponsoring witness testified.

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.

D. 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 charged with murdering policeman. During riot, V was shot with .22 caliber, and then V aimed at and shot D.

    • CW1 saw V aim and shoot. CW2 saw D shoot V. CW3 saw D move his arm to aim, but didn’t see gun.

    • After shooting, three of D’s friends, including McDonald (GM), found him and took him to hospital.

    • Mutual acquaintance convinced GM to meet with D’s attorneys. GM signed sworn confession that he had shot V; GM affirmed to D’s attorneys his confession was voluntary and uncompelled. GM handed over to jail.

    • At preliminary hearing one month later, GM repudiated prior sworn confession, claiming acquaintance persuaded him to confess, promised GM would not go to jail and would share proceeds in civil suit D would bring against town.

      • On exam by GM’s own attorney and by P, GM claimed he had not been at scene but was at nearby café and heard shots. Stated he once owned .22-caliber gun but lost it months before.

      • Local justice of peace accepted repudiation, released GM and investigated GM’s involvement no further.

  • At trial, D attempted to develop two grounds of defense:

    • D did not shoot V.

      • Only one CW claimed he saw D fire shots, no CW examined D after D was shot, no weapon was recovered at scene and no evidence D ever owned .22-caliber pistol. One witness claimed he was watching D and was sure D didn’t shoot.

    • GM shot V.

      • Friend of GM said he saw GM shoot V. V’s cousin said he saw GM with pistol immediately after.

      • In addition to testimony of two witnesses, D attempted to show GM had on four separate occasions confessed to crime —once in sworn statement, and three times prior in private conversations with friends.

  • 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.

    • Testimony of GM: party witness/voucher

      • D filed pretrial motion requesting trial court order GM to appear; TC granted motion.

      • At trial, P failed to put GM on stand. D called GM, laid ground for sworn out-of-court confession, and had it read to jury.

      • P, on cross-exam, elicited from GM that he had repudiated his confession.

      • D moves to examine GM as adverse witness. TC and SSC deny motion, claiming GM “was not adverse, since nowhere did he point the finger at D.”

    • Testimony of witnesses to whom GM confessed he shot V: hearsay

      • Testimony of all three was excluded as hearsay.

      • First witness testified in front of jury, second witness partially testified, and third witness was not allowed to testify at all. After P’s objection, TC ordered jury to disregard testimony.

      • Gun dealer’s business records corroborated, showing GM had purchased a .22 caliber a year prior, and bought a different .22 three weeks after incident.

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 denied D the opportunity to subject GM’s repudiation and alibi to cross-examination.

    • Right to confront is not absolute. It may bow to accommodate other legitimate interests, but its denial or significant diminution calls into question the integrity of the fact-finding process and requires competing interest be closely examined.

    • D’s request to cross examine was denied on basis of common-law “voucher rule,” which prohibits party who called witness from impeaching his own witness.

      • Used historically and in civil trials; rests on presumption party who calls witness vouches for his credibility.

      • But has no modern use in criminal trials: defendants are rarely able to select their witnesses, and take whoever they can get.

      • FRE rejects voucher rule.

      • Voucher rule was exacerbated by corollary [“party witness rule”?], which requires party calling witness is bound by anything witness might say.

    • Availability of right to confront and cross-examine those who five damaging testimony does not depend on who initially called witness.

      • GM was substantively adverse to D: to the extent GM’s repudiation exculpated GM, it inculpated D.

      • Court rejects TC’s narrow and unrealistic definition of “against.”

  • Court needn’t decide whether voucher rule error alone would occasion reversal, since D’s claimed denial of due process rests on the ultimate impact of that error when viewed in conjunction with TC’s refusal to permit him to call other witnesses.

  • 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.

    • Mississippi recognizes exception to hearsay rule for declarations against interest, but only for declarations against pecuniary interest, not penal interest.

      • Most states and the federal courts accept this materialistic limitation to the exception.

    • While this limitation is debatable, Court here needn’t decide whether, under other circumstances, it might serve some valid state purpose by excluding untrustworthy testimony.

    • Hearsay statements involved in this case were originally made and subsequently offered at trial under circumstances assuring their reliability.

      • GM’s confessions were made spontaneously to close acquaintances shortly after murder occurred.

      • Each was corroborated by other evidence—GM’s sworn confession, eyewitness testimony, proof of ownership of .22 caliber, and sheer number of independent confessions.

      • Each confession was self-incriminatory and against interest; GM stood to benefit nothing and must have been aware he opened the possibility of prosecution.

      • If any question about truthfulness of extrajudicial statements, GM was present in courtroom and under oath, and could have been cross-examined on these confessions by P.

  • 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 appeals district court’s dismissal of petition for writ of habeas corpus. D is serving life sentence for murder. At trial, 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.

  • Lower courts tended to balance incommensurate competing interests: importance of the testimony to the defense, testimony’s inherent strength and reliability, and various countervailing reasons for exclusion offered by state.

    • Nevertheless, 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.

  • D has a strong argument evidence should have been admitted.

    • Evidence of basketball court episode was not relevant to D’s state of mind (since D didn’t know about incident), but was relevant to V’s state of mind, making it more likely than without that V lunged at D as D claimed.

    • May look like character evidence, tending to portray V as violent; such evidence is commonly excluded because of remoteness and tendency to prejudice jury (FRE 404). But the incident was so close in time to the shooting as to suggest it might fall within exceptions that admits acts demonstrating state of mind and emotion of actor.

  • Even highly relevant evidence can be excluded if unduly prejudicial.

    • Evidence here was certainly prejudicial in the pertinent sense; invited jury to acquit because it made V appeal violent and dangerous.

    • But TC did not exclude evidence on grounds of undue prejudice and there is no certainty it would have done so if it appreciated the relevance.

  • It may thus be argued there was 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.

    • Otherwise, every significant state court error in excluding evidence offered by the defendant would be a basis for undoing the conviction.

    • 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 not 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.

Chapter 4. Character Evidence

A. The Basic Rule and Its Exceptions


  • Longstanding principle of Anglo-American evidence law prohibits proving a person’s character to support an inference the person acted in conformity with his character on a particular occasion.

  • Customarily justified on ground that evidence of this sort, while probative, is likely to be unduly prejudicial.

  • Like hearsay rule, character evidence rule depends in its application on the purpose for which the challenged evidence 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)


  • V said insult to D’s wife, and D told him to go away; D and wife went into home, and wife told D content of insult. D went back outside with a gun and shot V.

    • D told police he armed self with pistol in home; in testimony D said he had already been carrying pistol. Evidence suggests V attacked D.

  • Challenged admission of evidence that, at the time of arrest, D had three other pistols and a tear-gas gun in his apartment.

Opinion (Cardozo):

  • Question is whether killing was premeditated.

    • Must avoid blurring issues by evidence illegally admitted and carrying appeal to prejudice and passion.

  • Evidence here was inadmissible.

    • Prosecutor and judge harped on the inadmissible evidence.

    • Evidence introduced for illegitimate purpose.

      • evidence was introduced to persuade jury that D was man of vicious and dangerous character who, because of that character, was more likely to kill with deliberate and premeditated design than a man without that character,

    • Evidence was only relevant for illegitimate purpose.

      • Ownership of other weapons was relevant only for indicating general disposition to make use of them thereafter, and general disposition to make use of them thereafter is only relevant to prove bad character.

  • Character is never an issue in a criminal prosecution unless the 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.

      • Admissible as evidence of preparation and design.

    • Pistols were so connected with crime as to identify perpetrator, for example if perpetrator dropped them at scene of crime.

      • Admissible as tending to implicate possessor if identity was disputed, no matter the opprobrium attached to his possession.

    • Defendant went from apartment carrying all the weapons.

      • Admissible as preconceived design.

  • No such implication of preconceived design from ownership of guns left at home.

    • Here, endeavor was instead to generate atmosphere of professional criminality. It was especially unfair here because the D was actually otherwise a pretty upstanding guy: he was a dentist, had no criminal friends, etc.

  • D was forced to defend his ownership of guns.

    • D said he was a gun hobbyist. Whether true or not, he shouldn’t have been in position where he had to defend himself against a general and sweeping theory; he was brought in for the purpose of answering a specific charge.

  • Conviction reversed and remanded for new trial.

Cleghorn v. New York Central & Hudson River R.R. Co., 56 N.Y. 44 (1874)


  • Accident caused by switchman who failed to close switch after train passed, giving false signal to approaching passenger train.

  • D argues court erred in admitting evidence of employee’s intemperate habits as a switchman.

  • D argues Warner v. NYC R.R. Co. is direct authority against admission of evidence.

    • In Warner, a case of injury at road crossing, it was proved that flagman who neglected to give customary signal was intoxicated at the time.

    • Court held it error to show previous habits of intemperance known to officers of company, on ground that evidence had no bearing upon question of negligence at the time.

Opinion (Church):

  • 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 was a man of intemperate habits that were known by company agent with power to employ or discharge him, with a view of claiming exemplary damages.

  • For this purpose, the 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.

  • Court of Appeals held relevancy of question was not shown.

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. Evidence touching the character, conduct and reputation of the parties or any other evidence tending to throw light on their fitness to be custodian is admissible.

  • Question of whether R every killed anyone would be relevant as attempt to show specific act of bad character bearing on fitness of respondent.

  • CoA reversed.

  • [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 [counterclaim, so really P and D are switched] 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, and the present rule therefore has no provision on the subject.

    • “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.

  • Difficulty with expanding use of character evidence in civil cases is that character evidence is of slight probative value and may be very prejudicial.

McCormick on Evidence

  • Argument against character evidence in criminal trials: to say defendant deserves benefit of all reasonable doubts and that good character may produce a reasonable doubt assumes what should be demonstrated—that the doubt is not the product of unfair prejudice.

  • To the extent the ability to collect impressive character witnesses is concentrated among those accused of white collar rather than street crimes, the rule is unfairly asymmetrical.

  • When character of the victim is being proved, there is a very different risk of prejudice: that the victim was bad and got what he deserved.

    • At least in murder and maybe battery, when identity of first aggressor is really in doubt, probative value of evidence ordinarily justifies this risk.

B. 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 convicted of bribing federal agent. D, as witness on his own behalf, admitted passing money but claimed it was in response to agents demands, threats, or solicitations. The case came down to whether jury should believe agent or accused.

  • D called five witnesses to prove he enjoyed a good reputation.

  • P asked witnesses on cross-exam, over D’s objection, “Did you ever hear that on October 11th, 1920, the defendant, Solomon Michelson, was arrested for receiving stolen goods?”

    • TJ asked P whether D was really arrested, and P said yes and exhibited paper record to establish good faith, and D’s counsel didn’t challenge. [Must have good faith basis, and must be pertinent to current allegations.]

    • TJ gave limiting instruction that jury should not assume the incident actually took place, and the evidence was only for purpose of reputation.

  • CoA held evidence permissible.

Opinion (Jackson):

  • Common-law tradition disallows resort by prosecution to any kind of evidence of defendant’s evil character to establish probability of guilty.

    • State may not show defendant’s prior trouble with the law, specific criminal acts, or ill name among his neighbors, even though such facts might logically be persuasive that he is by propensity a probable perpetrator of the crime.

    • Rejected not because it’s irrelevant, but because it weighs too much, and disallowance prevents confusion of issues, unfair surprise and undue prejudice.

  • Line of inquiry firmly denied to prosecution is opened to defendant because character is relevant in resolving probabilities of guilt.

  • 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 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 that D possesses a good character inconsistent with acts charged.

    • Witness is allowed to summarize what he has heard. Reason is reputation is result of slow, disinterested accumulation of information over time. Justified by considerations of practical convenience in avoiding innumerable collateral issues.

  • Law extends helpful but illogical options to defendant.

    • For attempting to prove his good name, defendant must throw open the entire subject. Prosecution can pursue inquiry with contradictory witnesses, ask bases of opinion. [Defense counsel cannot, on re-direct exam, ask follow up questions about specific-event questions asked by prosecution.]

  • Wide-discretion is accompanied by heavy responsibility on trial courts to protect the practice from misuse.

    • Trial court here was scrupulous to guard it.

    • 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 on this subject are no more difficult to comprehend or apply than others.

Dissent (Rutledge):

  • Form of the question was itself notice of the fact to the jury. It told the jury what the...

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