Evidence Midterm

Burden and standard of proofs

"Beyond a reasonable doubt" "Preponderance of the evidence" "Clear and Convincing"

Daubert Factors

(1) Whether it can be (and has been) tested according to the scientific method; (2) Peer review and publication; (3) Known or potential rate of error; (4) General acceptance

Preliminary Questions; 104 (a):

(a) In General. The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege. (b) Relevance That Depends on a Fact. When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. The court may admit the proposed evidence on the condition that the proof be introduced later.

*Rule 901. Authenticating or Identifying Evidence*

(a) In General. To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is. (b) Examples. The following are examples only — not a complete list — of evidence that satisfies the requirement: (1) Testimony of a Witness with Knowledge. Testimony that an item is what it is claimed to be. (2) Nonexpert Opinion About Handwriting. A nonexpert's opinion that handwriting is genuine, based on a familiarity with it that was not acquired for the current litigation. (3) Comparison by an Expert Witness or the Trier of Fact. A comparison with an authenticated specimen by an expert witness or the trier of fact. (4) Distinctive Characteristics and the Like. The appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances. (5) Opinion About a Voice. An opinion identifying a person's voice — whether heard firsthand or through mechanical or electronic transmission or recording — based on hearing the voice at any time under circumstances that connect it with the alleged speaker. (6) Evidence About a Telephone Conversation. For a telephone conversation, evidence that a call was made to the number assigned at the time to: (A) a particular person, if circumstances, including self-identification, show that the person answering was the one called; or (B) a particular business, if the call was made to a business and the call related to business reasonably transacted over the telephone. (7) Evidence About Public Records. Evidence that: (A) a document was recorded or filed in a public office as authorized by law; or (B) a purported public record or statement is from the office where items of this kind are kept. (8) Evidence About Ancient Documents or Data Compilations. For a document or data compilation, evidence that it: (A) is in a condition that creates no suspicion about its authenticity; (B) was in a place where, if authentic, it would likely be; and (C) is at least 20 years old when offered. (9) Evidence About a Process or System. Evidence describing a process or system and showing that it produces an accurate result. (10) Methods Provided by a Statute or Rule. Any method of authentication or identification allowed by a federal statute or a rule prescribed by the Supreme Court.

*Residual Exception (807)*

(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.

*Rule 201. Judicial Notice of Adjudicative Facts*

(a) Scope. This rule governs judicial notice of an adjudicative fact only, not a legislative fact. (b) Kinds of Facts That May Be Judicially Noticed. The court may judicially notice a fact that is not subject to reasonable dispute because it: (1) is generally known within the trial court's territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned. (c) Taking Notice. The court: (1) may take judicial notice on its own; or (2) must take judicial notice if a party requests it and the court is supplied with the necessary information. (d) Timing. The court may take judicial notice at any stage of the proceeding. (e) Opportunity to Be Heard. On timely request, a party is entitled to be heard on the propriety of taking judicial notice and the nature of the fact to be noticed. If the court takes judicial notice before notifying a party, the party, on request, is still entitled to be heard. (f) Instructing the Jury. In a civil case, the court must instruct the jury to accept the noticed fact as conclusive. In a criminal case, the court must instruct the jury that it may or may not accept the noticed fact as conclusive.

Rule 404. Character Evidence; Crimes or Other Acts

(b) Crimes, Wrongs, or Other Acts. (1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character. (2) Permitted Uses; Notice in a Criminal Case. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. On request by a defendant in a criminal case, the prosecutor must:

*Rule 606. Juror*

*(a) At the Trial.* A juror may not testify as a witness before the other jurors at the trial. If a juror is called to testify, the court must give a party an opportunity to object outside the jury's presence. *(b) During an Inquiry into the Validity of a Verdict or Indictment.* *(1) Prohibited Testimony or Other Evidence.* During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury's deliberations; the effect of anything on that juror's or another juror's vote; or any juror's mental processes concerning the verdict or indictment. The court may not receive a juror's affidavit or evidence of a juror's statement on these matters. (2) Exceptions. A juror may testify about whether: (A) extraneous prejudicial information was improperly brought to the jury's attention; (B) an outside influence was improperly brought to bear on any juror; or (C) a mistake was made in entering the verdict on the verdict form.

Rule 405. Methods of Proving Character

*(a) By Reputation or Opinion.* When evidence of a person's character or character trait is admissible, it may be proved by testimony about the person's reputation or by testimony in the form of an opinion. On cross-examination of the character witness, the court may allow an inquiry into relevant specific instances of the person's conduct. *(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.

*Rule 404. Character Evidence; Crimes or Other Acts*

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

*Rule 611. Mode and Order of Examining Witnesses and Presenting Evidence*

*(a) Control by the Court; Purposes.* The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to: (1) make those procedures effective for determining the truth; (2) avoid wasting time; and (3) protect witnesses from harassment or undue embarrassment. *(b) Scope of Cross-Examination.* Cross-examination should not go beyond the subject matter of the direct examination and matters affecting the witness's credibility. The court may allow inquiry into additional matters as if on direct examination. *(c) Leading Questions.* Leading questions should not be used on direct examination except as necessary to develop the witness's testimony. Ordinarily, the court should allow leading questions: (1) on cross-examination; and (2) when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party.

*Rule 609. Impeachment by Evidence of a Criminal Conviction*

*(a) In General.* The following rules apply to attacking a witness's character for truthfulness by evidence of a criminal conviction: (1) for a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than one year, the evidence: (A) must be admitted, subject to Rule 403, in a civil case or in a criminal case in which the witness is not a defendant; and (B) must be admitted in a criminal case in which the witness is a defendant, if the probative value of the evidence outweighs its prejudicial effect to that defendant; and (2) for any crime regardless of the punishment, the evidence must be admitted if the court can readily determine that establishing the elements of the crime required proving — or the witness's admitting — a dishonest act or false statement.

*Rule 415. Similar Acts in Civil Cases Involving Sexual Assault or Child Molestation*

*(a) Permitted Uses.* In a civil case involving a claim for relief based on a party's alleged sexual assault or child molestation, the court may admit evidence that the party committed any other sexual assault or child molestation. The evidence may be considered as provided in Rules 413 and 414. *(b) Disclosure to the Opponent.* If a party intends to offer this evidence, the party must disclose it to the party against whom it will be offered, including witnesses' statements or a summary of the expected testimony. The party must do so at least 15 days before trial or at a later time that the court allows for good cause. *(c) Effect on Other Rules.* This rule does not limit the admission or consideration of evidence under any other rule.

*Rule 413. Similar Crimes in Sexual-Assault Cases*

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

*Rule 408. Compromise Offers and Negotiations*

*(a) Prohibited Uses.* Evidence of the following is not admissible — on behalf of any party — either to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction: (1) furnishing, promising, or offering — or accepting, promising to accept, or offering to accept — a valuable consideration in compromising or attempting to compromise the claim; and (2) conduct or a statement made during compromise negotiations about the claim — except when offered in a criminal case and when the negotiations related to a claim by a public office in the exercise of its regulatory, investigative, or enforcement authority. *(b) Exceptions.* The court may admit this evidence for another purpose, such as proving a witness's bias or prejudice, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.

*Rule 410. Pleas, Plea Discussions, and Related Statements*

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

*Rule 412. Sex-Offense Cases: The Victim*

*(a) Prohibited Uses.* The following evidence is not admissible in a civil or criminal proceeding involving alleged sexual misconduct: (1) evidence offered to prove that a victim engaged in other sexual behavior; or (2) evidence offered to prove a victim's sexual predisposition. *(b) Exceptions.* *(1) Criminal Cases.* The court may admit the following evidence in a criminal case: (A) evidence of specific instances of a victim's sexual behavior, if offered to prove that someone other than the defendant was the source of semen, injury, or other physical evidence; (B) evidence of specific instances of a victim's sexual behavior with respect to the person accused of the sexual misconduct, if offered by the defendant to prove consent or if offered by the prosecutor; and (C) evidence whose exclusion would violate the defendant's constitutional rights. *(2) Civil Cases.* In a civil case, the court may admit evidence offered to prove a victim's sexual behavior or sexual predisposition if its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. The court may admit evidence of a victim's reputation only if the victim has placed it in controversy.

*Rule 613. Witness*

*(a) Showing or Disclosing the Statement During Examination.* When examining a witness about the witness's prior statement, a party need not show it or disclose its contents to the witness. But the party must, on request, show it or disclose its contents to an adverse party's attorney. *(b) Extrinsic Evidence of a Prior Inconsistent Statement.* Extrinsic evidence of a witness's prior inconsistent statement is admissible only if the witness is given an opportunity to explain or deny the statement and an adverse party is given an opportunity to examine the witness about it, or if justice so requires. This subdivision (b) does not apply to an opposing party's statement under Rule 801(d)(2).

412 Exceptions - Criminal Cases

*(b) Exceptions.* *(1) Criminal Cases.* The court may admit the following evidence in a criminal case: (A) evidence of specific instances of a victim's sexual behavior, if offered to prove that someone other than the defendant was the source of semen, injury, or other physical evidence; (B) evidence of specific instances of a victim's sexual behavior with respect to the person accused of the sexual misconduct, if offered by the defendant to prove consent or if offered by the prosecutor; and (C) evidence whose exclusion would violate the defendant's constitutional rights.

*Mode of Questioning* (Rule 611(c) - Leading Questions

*(c) Leading Questions.* Leading questions should not be used on direct examination except as necessary to develop the witness's testimony. Ordinarily, the court should allow leading questions: (1) on cross-examination; and (2) when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party.

*Rule 803(4)*: A statement that: (A) is made for — and is reasonably pertinent to — medical diagnosis or treatment; and (B) describes medical history; past or present symptoms or sensations; their inception; or their general cause.

*Ex*: A child is burned by their mom's bf with a cigarette, and the mother says "he gets nasty when he drinks." Both are pertinent because a) the cig injury and b) the psychological impact (or injury) caused by someone who is close to you. *Ex*: A miner sues his employer for causing his illness. The lawyer hires a physician and the tells the doc that his lungs began to hurt right after he started working for the miner. Is the statement admissible? Yes, despite the physician being hired as an expert, the purpose is for diagnosis.

United States v. Zenni (E.D. Ky. 1980) *Facts*: Humphrey (defendant) was charged with illegal bookmaking activities. As part of a warrant-authorized search of Humphrey's house, government agents answered his phone several times and listened to people on the other line placing bets. The prosecution sought to introduce the evidence of these phone calls to show that the callers thought the house was used for bookmaking activities. Humphrey objected on the ground that the phone calls were inadmissible hearsay.

*Holding* : Removes implied assertions from the definition of statement and consequently from the operation of the hearsay rule. *Reasoning*: No oral or written expression was to be considered as hearsay unless it was an assertion concerning the matter sought to be proved and that no nonverbal conduct should be considered hearsay, unless it as intended to be an assertion concerning said matter

Carney v. American University (D.C. Cir. 1998) *Facts*: Darion Carney (plaintiff), who was African American, was the director of student services at The American University (American) (defendant). Carney was named acting dean of students. Carney applied for the permanent dean position but was not selected. Carney returned to her role as director of student services. American eliminated Carney's position two years later during a period of downsizing. Carney sent a letter to American stating that she intended to sue for discrimination. American responded to Carney's discrimination claim with a settlement letter indicating that Carney might be entitled to an additional three months' severance pay under American's personnel policies. However, American did not give Carney the additional three months' severance pay. *PH*: Carney brought suit against American in the United States District Court for the District of Columbia, claiming, in addition to discrimination, that American's failure to give her the additional three months' severance pay was in retaliation for her lawsuit. Carney sought to introduce the letter from American to prove her retaliation claim, but the district court excluded the letter under Federal Rule of Evidence (FRE) 408. The district court granted summary judgment to American. Carney appealed.

*Holding*: Affirm as to the discrimination claims but reversed and remand the claim of retaliation. *Reasoning*: The Court disagrees with the DC because 1) apart from the settlement letters, Carney offered evidence from which a jury could conclude that University retaliated against Carney either by refusing to give her extra pay or refusing to even consider it. 2) The letters are not admissible to prove liability or amount, but they are admissible for another purpose such as establishing an independent violation (here retaliation) unrelated to the under lying claim that is subject of the correspondence (discrimination)

United States v. Aponte (2nd Cir. 1994) *Facts*: Michael Aponte appeals from a conviction and sentence entered by Judge Dominick L. DiCarlo, following a jury trial. The jury convicted Aponte of conspiracy to rib a US Postal Service truck and aiding and abetting the armed robbery of a Postal Service truck.

*Holding*: Affirmed *Reasoning*: The documents were offered to show Quiles' capacity for deception. However, the statements were excludable as extrinsic evidence of the character and conduct of Quiles.

United States v. Sanders (4th Cir. 1992) *Facts*: Sanders (defendant), in prison at the time, was charged with assault with a dangerous weapon and possession of a contraband shank. Sanders took the stand and claimed self-defense on the assault charge. At trial, the prosecution sought to introduce into evidence Sanders's previous convictions for assault and possession of a contraband shank. The trial court allowed the prosecution to question Sanders about the prior convictions under Rule 609. *PH*: The trial also allowed the questioning under Rule 404(b), claiming that the previous convictions were evidence of Sanders's intent in the current case. Sanders was convicted on both the assault and possession charges. He appealed. *Rule*: 609(a)(1)(B) and 404(b)

*Holding*: Affirmed Sander's conviction on the possession count but reverse and remand for a new trial on the assault. The DC erred in admitting this evidence under Rule 404(b) The error in admitting the evidence of the prior convictions was harmless as to the possession count from which Sanders was convicted on his first trial. *Reasoning*: Although the evidence of prior convictions may be though somehow probative of Sander's lack of credibility, they were extremely prejudicial; since they involve the exact type of conduct for which sanders was on trial. Notes: The prejudice would include the jury misusing the evidence as propensity evidence and not just am attack on his credibility. Additionally, the jury could misuse the evidence to determine that the ∆ is a bad guy who shanks people. Two important things to consider and worry about: 1) how similar is the crime (worried bc of propensity misuse) and 2) the jury may find the prior crime reprehensible and convict him for that crime and the current. *Note* 609(a)(1)(B) - the probative must out weigh the prejudicial value, BUT *it DOES NOT have to substantially outweigh*.

United States v. Nabors (10th Cir. 1985) *Facts*: The ∆ brothers, Charles Bruce Nabors and John Calvin Nabors, Jr. appeal from a final judgment entered in the DC after a jury verdict finding each of them guilty of bank robbery by means of a deadly weapon and conspiracy to commit bank robbery. *Rule*: 611(c). - Leading Questions

*Holding*: Affirmed as to both ∆s. *Reasoning*: The advisory Committee describe a long-recognized exception - "the child witness of the adult with communication problems." The Trial court's ruling describes deference because the court was in the best position to evaluate the emotional l condition of the child witness and his hesitancy to testify. *Notes*: A little kid is in an unfamiliar and intimidating situation where they are not comfortable saying a cuss word. However, the actual language is necessary to convey the fact that the ∆s were caught doing something wrong.

Ramada Development Co. v. Rauch (5th Cir. Unit B 1981) *Facts*: In 1972, Martin Rauch (defendant) signed a contract with the Ramada Development Company (Ramada) (plaintiff), under which Ramada agreed to build a Ramada Inn Motor Hotel (motel) for Rauch. Rauch took occupancy of the motel in early 1974, but refused to pay the outstanding balance to Ramada. Rauch based his lack of payment on alleged defects in the construction of the motel. In 1974, Ramada commissioned a study (the Goldsmith Report) to investigate the defects that Rauch had alleged. Specifically, Ramada commissioned the Goldsmith Report in order to identify any defects in the construction so that Ramada could have informed settlement discussions with Rauch. Ramada brought suit against Rauch to recover the outstanding balance. At trial, Rauch sought to introduce the Goldsmith Report into evidence. *PH*: The district court excluded the Goldsmith Report as a settlement offer inadmissible under Federal Rule of Evidence (FRE) 408. The district court found in favor of Ramada. Rauch appealed, arguing that there was no pretrial understanding between the parties that the Goldsmith Report was intended to be used in settlement negotiations. *Issue*: Whether the statements or conduct were intended to be part of the negotiations toward compromise.

*Holding*: Affirmed in relevant part; We cannot say that the DC abused its discretion; notice could be effectively proved by means less in conflict with the policy behind rule 408. The exclusion of the Goldsmith report under rule 408 must stand. *Reasoning*: The report was to identify arguable defects that could then be discussed in monetary terms in the negotiations. The Goldsmith Report, as described by Mr. Gilbert, thus represents a collection of statements made in the court of an effort to compromise. *Notes*: - It does not matter what the report was initially made for, if it was used in a negotiation compromise. - None of the evidence in the list is protected. Evidence cannot be hidden by imbedding them in a settlement negotiation. - There are other ways to prove the evidence of defects, such as having a repairman check out the defects and testify as to the necessary repairs.

United States v. Grant (2d Cir. 1992) *Facts*: ∆ contends that the government failed to prove that the packages imported by. Her companion contained heroine.

*Holding*: Affirmed; *Reasoning*: The government presented the testimony of the chemist who analyzed the package. There is no need to authenticate the testimony of live witnesses.

United States v. Saavedra (9th Cir. 1982) *Facts*: ∆ is calling people over the phone and committing credit card fraud by pretending to be law enforcement and getting credit card numbers

*Holding*: Affirmed; *Reasoning*: The testimony was introduced to show how the credit card numbers were fraudulently obtained by persons posing as law enforcement.

Huddelston v. United States U.S (1988) *Facts*: Huddleston (defendant) was charged with possession of stolen property and selling stolen goods—charges arising out of a shipment of stolen video cassette tapes. The material issue at trial was whether Huddleston knew the tapes were stolen. The prosecution sought to introduce evidence of two similar acts under Rule 404(b). The first such evidence was testimony that Huddleston sold a large quantity of new televisions for $28 each; the other was testimony that Huddleston was arrested one month after the cassette tape theft for offering to sell $20,000 of appliances to an undercover FBI agent for $8,000. Huddleston could not produce a bill of sale for any of the goods and testified that he acquired the tapes, televisions, and appliances from Leroy Westby. *PH*: The trial court allowed the admission of the similar prior acts and Huddleston was convicted of possession of stolen property. Huddleston appealed *Issue*: Whether the DC must itself make a preliminary finding that the Gov has proved "the other act" by a preponderance of evidence before it submits the evidence to the jury.

*Holding*: Affirmed; A preliminary finding by the court that the government has proved the act by a preponderance of the evidence is not called for under Rule 104(a). *Reasoning*: The court simply examines all the evidence in the case and decides whether the jury could reasonably find the conditional fact - here, that the televisions were stolen - by a preponderance of the evidence. *Notes*: - In the instant case, the evidence that petitioner was selling the televisions was relevant under the Government's theory only if the jury could reasonably find that the televisions were stolen. - The sum of an evidentiary presentation may well be greater than its constituent parts. Evidence tending to show the tvs were stolen include the facts that they were sold at a low price, the large quantity, and the petitioner's inability to provide a bill of sale. - Rule 403 - excluding relevant evidence for Prejudice, Confusion, Waste of Time, or Other Reasoning: The evidence's probative value must substantially outweigh the prejudicial effect.

Ohler v. United States U.S (2000) *Facts*: The prosecution made a motion in limine to determine whether it could use evidence of Ohler's (defendant) past criminal conviction to impeach her should Ohler testify. The trial court ruled that the prosecution could use such evidence. Ohler chose to testify despite the ruling. On direct examination, Ohler's counsel questioned her about the conviction so that the jury would not hear of the conviction from the prosecution first. *PH*: Ohler was convicted and appealed. The Supreme Court granted certiorari. *Rule*: 609(a)(1)

*Holding*: Affirmed; A ∆ who preemptively introduces evidence of a prior conviction on direct examination may not on appeal claim that the admission of such evidence was error. *Reasoning*: Petitioner's submission would deny to the government its usual right to decide, after she testifies, whether or not to use her prior conviction against her.

Clausen v. Storage Tank Development Corp. (1st Cir. 1994) *Facts*: In 1989, Eric Clausen (plaintiff) worked for the Goudreau Construction Corporation (Goudreau). While on the job, Clausen slipped on a ramp at a fuel terminal facility, injuring himself. The facility was owned by Storage Tank Development Corporation (Storage Tank) (defendant) and occupied by Sea-3, Inc. (Sea-3) (defendant). Clausen brought a negligence suit against the defendants. The defendants filed third-party suits against Goudreau and disputed which entity had controlled the ramp at the time of Clausen's injury. Clausen sought to introduce evidence that Storage Tank, at Sea-3's request, replaced the ramp with stairs in 1992. *PH*: The United States District Court for the District of New Hampshire admitted the evidence as evidence of Storage Tank's control over the ramp. The trial judge instructed the jury not to use the ramp replacement as evidence of any negligent conduct on the part of the defendants. The jury found in favor of Clausen. Storage Tank appealed, arguing that the admission of the evidence of its replacement of the ramp was in error. *Issue*: Whether Storage Tank , Sea-3, or both jointly, controlled the area where Clausen fell if Gordreau, at that time, did not control the ramp.

*Holding*: Affirmed; Although limiting instructions may not always be effective, the inadequacy of the one in this situation is scarcely so patent as to support a finding of plain error. We do not readily assume that the jury disregards clear directions. *Reasoning*: Whatever can be said for such arguments had Storage Tank preserved its right to argue the merits, they do not come close to demonstrating that it was plain error for the DC to believed that the evidence carried at least some probative weight as to who controlled the ramp in 1989. *Notes*: *Plain Error*: Errors which are obvious and highly prejudicial, which effect the substantial rights of a party and is likely to have resulted in a miscarriage of justice.

Fortini v. Murphy (1st Cir. 2001) *Facts*: Robert Fortini (plaintiff) shot and killed Caesar Monterio. Fortini asserted self-defense, testifying that Monterio had lunged at Fortini first. The state trial court declined to admit evidence that Monterio had assaulted four individuals right before the incident with Fortini. *PH*: Fortini was convicted of second-degree murder. Fortini filed a petition for a writ of habeas corpus in federal district court, claiming that the trial court's exclusion of the assault evidence violated his due-process rights under Chambers v. Mississippi, 410 U.S. 284 (1973). The district court denied the petition. Fortini appealed.

*Holding*: Affirmed; Although this is a close case, exclusion of the evidence does not in our view add up to the kind of fundamental unfairness that warrants a federal court in finding a violation of due process. The exclusion was error, but NOT constitutional error. *Reasoning*: 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 ∆ would be a basis for undoing the conviction.

United States v. Boyd (4th Cir 1995) *Facts*: Boyd appeals conviction for marijuana trafficking. He argues that the DC abused its discretion in admitting testimony that he personally used cocaine and marijuana. *Issue*: Whether such evidence has the potential to cause undue prejudice, and is so, whether the danger of such undue prejudice substantially outweighs its probative value?

*Holding*: Affirmed; Boyd's personal drug use was far less prejudicial than the evidence that he supplied hundred pounds of marijuana. The evidence at issue was admissible. *Reasoning*: The conduct of personal drug use was much less sensational or disturbing than the crimes with which he was charged.

United States v. Krapp (8th Cir. 1987) *Facts*: Patricia Krapp (defendant) was employed at a United States post office. Krapp was charged with making false record entries with the intent to mislead, deceive, or defraud the United States. At trial, Krapp called a character witness who testified that Krapp was an honest person. On cross-examination, the prosecution asked the character witness, "Are you aware that Pat Krapp's husband with her knowledge omitted cash income that he had on his—on their tax returns?" The judge sustained Krapp's objection to this question. The judge told the jury to disregard the question. *PH*: Krapp was convicted. Krapp appealed, arguing that the district court should have ordered a mistrial on account of the jury hearing the tax-return question.

*Holding*: Affirmed; Even if the question were improper, when viewed in the context of the whole trial, it. was not so offensive as to warrant a mistrial. The court found no abuse of discretion. *Notes*: You want to have a good faith basis for presenting the evidence, and you should give the judge an opportunity to determine the propriety of the questions.

United States v. Ewing (7th Cir. 1992) *Facts*: During a search of the home of Henry Ewing (defendant), police found cocaine and two notebooks containing incriminating information. The prosecution introduced the notebooks at trial. At that time, the notebooks had Ewing's name written on them. However, Renee Schooley, who was Ewing's attorney, and Abigail Stottlar, who was Schooley's paralegal, had examined the notebooks at the police station approximately six weeks before trial. Stottlar testified that Ewing's name had not been on the notebooks when she examined them prior to trial. *PH*: The trial judge did not allow Schooley to testify in the same way, and Ewing was convicted of drug trafficking. Ewing appealed, arguing that Schooley should have been permitted to testify that Ewing's name was not on the notebooks at the police station.

*Holding*: Affirmed; Given the presumption against allowing counsel to testify as a witness, and the fact that the ∆ was able to present Stottlar's crucial eyewitness testimony, it was not an abuse of discretion for the district court to rule that Schooley's testimony would have been cumulative and thus that would not be allowed. *Reasoning*: Stottlar's testimony (the paralegal) was able to provide Ewing's most powerful evidence that tampering had allegedly occurred.

United States v. Dossey (8th Cir. 1977) *Facts*: ∆ appeals her conviction by a jury of armed bank robbery in violation of 18USC. The teller described the robber's physical characteristics. Then, Jagow testified to the ∆ admitting to the Little Rock robberies, then they planned an executed a robbery in Arizona, and also the ∆ admitted to a Minnesota robbery. *Issue*: Whether the court should have admitted Jagow's testimony about the Minn robberies.

*Holding*: Affirmed; In this situation, error, if any, was harmless beyond a reasonable doubt. Reasoning: The evidence of the Arizona robbery was admissible to prove *identification* of the person who robbed the little rock bank. Similarity in *modus operandi* and disguise is great and the incidents were close in time. The substantial probative value of this evidence was not outweighed by the possibility of unfair prejudice and it was properly admitted.

Wilson v. Zapata Off-Shore Co. (5th Cir. 1991) *Facts*: Elizabeth Wilson (plaintiff) brought suit against her former employer, Zapata Off-Shore Company (Zapata) (defendant), for sex discrimination and emotional distress. Wilson had been admitted to a hospital and treated for anxiety during a time pertinent to her claims. At trial, Zapata sought to introduce a record from the hospital that contained a statement Wilson's sister had made to a social worker. The hospital record stated that Wilson's sister had reported that Wilson was "a habitual liar and [had] been all of her life." The district court introduced the hospital record over Wilson's objection. There was significant additional evidence presented at trial indicating that Wilson was not credible. The district court ruled in favor of Zapata. Wilson appealed. *Issue*: Whether statements contained in medical records relating to a patient's condition are admissible hearsay, is whether such statements are the type pertinent to a physician in providing treatment.

*Holding*: Affirmed; It is highly probable that the admission of these medical reports did not affect Wilson's substantial rights. *Reasoning*: both the source and the record of information, as well as every other participant in the chain producing the record are acting in the regular course of business, the multiple hearsay is excused. *Rule(s)*: 803(6) and 803(4)

*Facts*: McRae (defendant) killed his wife with his hunting rifle on a military reservation. McRae admitted to the killing but claimed that it was accidental. The United States (plaintiff) charged McRae with murder. At trial, the district court permitted introduction of photographs of the crime scene. The photographs depicted the victim in the chair in which she was killed. The victim was very bloody, and the photographs showed the hole in her head left by the bullet. The district court found that given McRae's defense of accident, the photographs were very probative as to the establishment of the victim's and McRae's positioning when the gun went off. A jury convicted McRae, and he appealed, arguing that the district court abused its discretion by declining to exclude the photographs as unfairly prejudicial under Federal Rule of Evidence 403.

*Holding*: Affirmed; It is not designed to permit the court to "even out" the weight of the evidence, to mitigate a crime, or to make a contest where there is little or none. Here was no parade of horrors. We refuse to interfere with the trial court's exercise of its discretion. *Reasoning*: Relevant evidence is inherently prejudicial; but it is only unfair prejudice, *substantially outweighing probative value*, which permits exclusion of relevant matter under 403. - Parties are not required to stipulate

United States v. Machor (1st Cir.1989) *Facts*: After a joint trial, the four appellants were convicted under 21 USC for aiding and abetting each other in the possession with intent to distribute cocaine. *Rule*: 615(b)

*Holding*: Affirmed; It seems clear that a case agent representing the government is within the scope of the exception. *Reasoning*: The majority view is that FRE 615(2) has severely curtailed in discretion of the trial court to sequester the government's case agent. *Notes*: Natural Person - people who are living beings, not corporations or organizations.

Roland v. Langlois (7th Cir. 1991) *Facts*: plaintiff appeals a judgment for damages against the ∆ when her husband was hit by a carnival ride. The objects against the ∆s life size model of a portion of the fence around the ride bc of inaccuracies.

*Holding*: Affirmed; NO abuse of discretion; The benefits were not substantially outweighed by the danger of unfair prejudice. *Reasoning*: There is no requirement that demonstrative evidence be completely accurate, however, the evidence was admitted only on the express condition that the jury alerted to the perceived inaccuracies.

United States v. Ford (7th Cir. 2013) *Facts*: ∆ and two co∆s were convicted of wire fraud in connection with a mortgage scam. *PH*: The court ruled that Ford's cooperation in the investigation of an entirely different fraud - one she was not involved in - was unrelated and could confuse the jury. *Rule*: 404(a)(2) and 405(a) and 405(b)

*Holding*: Affirmed; No abuse of discretion in the exclusion of testimony *Reasoning*: Fords testimony about the time she tipped off th FBI is evidence about a specific instance of her character and Fords law-abidingness, or lack thereof, is not an essential element of wire fraud charge, not a defense to it.

United States v. Oaxaca (9th Cir. 1978) *Facts*: Oaxaca was charged in a one-count indictment alleging a single armed bank robbery. He was convicted after a jury trial. At trial Oaxaca chose to testify in his own behalf.

*Holding*: Affirmed; No abuse of discretion. *Reasoning*: The convictions were for crimes which reflected adversely on the ∆'s honesty and integrity. *Notes*: This evidence could be prejudicial bc the jury could assume that because he did it before, he would be willing to do it again.

Bannister v. Town of Nobel, Oklahoma (10th Cir. 1987) *Facts*: ∆ argues that the court erred in admitted three video tapes including a day in the life film, and a car approaching an incline ramp,

*Holding*: Affirmed; No abuse of discretion; *Reasoning*: The day in the life film, as a whole, demonstrates the s adaptation to the injury.

Patterson v. New York (U.S 1977) *Facts*: Gordon Patterson, Jr. (defendant) had a brief and unstable marriage with his wife, Roberta. After they separated, Roberta began seeing an old boyfriend. Patterson borrowed a rifle from an acquaintance and shot the boyfriend, killing him. Patterson was charged with second-degree murder. At trial, Patterson raised the state-recognized affirmative defense that he had acted under extreme emotional disturbance. The jury was instructed that Patterson had the burden of proving his affirmative defense by a preponderance of the evidence. If Patterson proved the affirmative defense, it would have mitigated the second-degree murder charge to manslaughter. *PH*: The jury found Patterson guilty of second-degree murder and he appealed. The Court of Appeals of New York affirmed the conviction and rejected Patterson's argument that the burden of proving extreme emotional disturbance fell on the state, not on Patterson. Patterson appealed. *Issue*: Whether NY's allocation to the ∆ of proving the mitigating circumstances of sever emotional disturbance inconsistent with due process?

*Holding*: Affirmed; Nothing was presumed or implied against Patterson; and his conviction is not invalid under any of our prior cases. The affirmative defense constitutes a separate issue on which the ∆ us required to carry the burden of persuasion; and unless we overturn Leland and Rivera, NY has not violated the due process clause, and Patterson's convictions must be sustained. *Reasoning*: shifting of the burden of persuasion with respect to a fact which the State deems so important that it must be either proved or presumed is impermissible under the Due Process Clause. *Dissent*: The test established by the court allows a leg to shift virtually at will, the burden of persuasion with respect to any factor in a criminal case, so long as it is careful not to mention the nonexistence of that factor in the statutory language that defines the crime. *Notes*: "[S]hifting ...the burden of persuasion with respect to a fact which the State deems so important that it must be either proved or presumed is impermissible under the Due Process Clause ... [N]othing was presumed or implied against Patterson, and his conviction is not invalid.

Loughan v. Firestone Tire & Rubber Co. (11th Cir. 1985) *Facts*: John Loughan (plaintiff) was a car mechanic. Loughan was injured when a rim-wheel assembly on which he was working came apart and hit him on the head. Loughan brought a products-liability suit against the manufacturer of the assembly, Firestone Tire and Rubber Company (Firestone) (defendant). Firestone sought to introduce evidence of Loughan's drinking under Federal Rule of Evidence (FRE) 406. Firestone raised the issue outside the presence of the jury and presented, to the judge, evidence that Loughan's drinking was habitual. Specifically, Loughan regularly carried a cooler of beer on the job and admitted to drinking while on the job. Loughan's supervisor, who had supervised Loughan from 1971 to 1974, testified to the same. Additionally, Loughan's supervisor from 1969 to 1971 testified that Loughan had been fired after complaints from customers that he was drinking on the job. *PH*: The district court admitted evidence of Loughan's drinking habit as evidence that Loughan had been drinking at the time of the accident. The jury ruled in favor of Firestone. Loughan appealed. *Issue*: Whether the references to Loughan's drinking introduced by the ∆ represent evidence admissible to prove habit.

*Holding*: Affirmed; On a close call, the Court will find that the DC's admission of evidence relating to Loughan's drinking on the job rose to the level of habit discussed in 406. *Reasoning*: The recounts establish a pattern of drinking over a period of time.

United States v. Amaechi (7th Cir. 1993) *Facts*: ∆ Ameachi was convicted of narcotics trafficking based on evidence that he had taken delivery of a suitcase containing a kilo of heroin. Among the prosecutions witnesses was Doreen Bennet, who had taken the suitcase to the ∆. *Rule*: 609(a)(2) *Issue*: Whether shoplifting involves the kind contemplated by Congress in drafting the FRE.

*Holding*: Affirmed; Petty Shoplifting is not in and of itself qualify as a crime of dishonesty under Rule 609. The DC correctly prohibited Amaechi's counsel from impeaching Bennett with her shoplifting conviction. *Reasoning*: The drafters explicitly intended the rule 609 be limited to crime involving some element of misrepresentation or other indication of a propensity to lie and excluding those rime which, bad though they are, do not carry with them a tinge of falsification.

United States v. Bowers (5th Cir. 1981) *Facts*: The ∆ argues that the Court erred in taking judicial notice that the Fort Benning is only land owned by the United States.

*Holding*: Affirmed; The Court committed no error in failing to instruct the jury it could disregard the judicially noticed fact. *Reasoning*: The fact that the Fort is under Fed jurisdiction is a well-established fact appropriate for judicial notice.

People v Freeman (Cal. Ct. App. 1971) *Facts*: Norman Freeman (defendant) was charged with first-degree robbery. Lee Foster was the gunman during the robbery. Fred Knipp interviewed Anna Duckworth, the mother of Foster's girlfriend, about the morning of the robbery. According to Knipp, Duckworth told him that she had been at her daughter's house on the morning in question. Duckworth also told Knipp that Foster had been at the house as well and that Freeman had come to the house to pick up Foster. At trial, the prosecution called Duckworth as a witness. Duckworth denied telling Knipp that Foster had been at the house and that Foster had left the house with Freeman. Duckworth was excused with the consent of both parties and left the courtroom. The prosecution then called Knipp as a witness. Knipp testified, over Freeman's objection, that Duckworth had told him that Foster had been at the house and that Foster had left with Freeman. Duckworth's and Knipp's testimonies at trial were identical to their testimonies during the prosecution's offer of proof. *PH*: Freeman was convicted. Freeman appealed, arguing that the admission of Knipp's testimony was an abuse of discretion.

*Holding*: Affirmed; The Court correctly permitted Knipp to testify. *Reasoning*: The witness' recantation permitted the inference the he has something to hide, and this inference provides the earlier version a measure of reliability.

Trammel v. United States (U.S 1980) *Facts*: Otis Trammel (defendant) was charged with crimes related to the importation of heroin. His wife, Elizabeth, was also involved in the importation and agreed to testify against Otis in exchange for judicial leniency. Otis objected to Elizabeth's testimony on the grounds of marital privilege. The district court determined that Elizabeth could testify to any act she observed during their marriage and any statement that was made in the presence of third parties. *PH*: The court found Otis guilty. The court of appeals affirmed. The United States Supreme Court granted certiorari. *Issue*: Whether an accused may invoke the privilege against adverse spousal testimony so as to exclude the voluntary testimony of his wife.

*Holding*: Affirmed; The DC and the CoA were correct in rejecting petitioner's claim of privilege, and the judgment of the CoA. The existing rule should be mortified so that the witness-spouse alone has a privilege to refuse to testify adversely; the witness may be neither compelled to testify nor foreclosed from testifying. *Reasoning*: This modification - vesting privilege in the witness-spouse - furthers the important public interest in marital harmony without unduly burdening legitimate law enforcement needs. *Concurring*: The Court is accepting the arguments that it rejected in Hawkins, the arguments were valid then, and they are valid now.

Lewis v. United States (10th Cir. 1985) *Facts*: ∆ appeals his conviction for burglary of a post office, a violation of 18 U.S.C §2115 and for destruction of government property, a violation of 18 U.S.C §1361

*Holding*: Affirmed; The DC did not abuse its discretion *Reasoning*: Evidence of ∆'s participation in a burglary several hours before the post office burglary with which ∆ was charged falls squarely within Rule 404(b) as establishing ∆s plan and intent. *Notes*: Evidence was admissible to show the preparation or plan under 404(b)(2)

Tornay v. United States (9th Cir. 1988) *Facts*: ∆s were subject of an investigation by the IRS to determine their federal tax liability for certain years. The IRS is seeking fee information from their attorneys, but whenever they summon the attorneys, the ∆s discharge them. *PH*: ∆ petitioned to quash, but the DC denied the petition and appealed.

*Holding*: Affirmed; The DC did not abuse its discretion by denying the petition to quash. *Reasoning*: The privilege is not to immunize a client from liability stemming from expenditures for legal services. Its purpose is only to encourage persons who choose to be represented by counsel, despite the consequences of that choice, to confer candidly and openly with their attorney.

United States v. Stockton 8th Cir. 1992 *Facts*: The ∆ argues that bc the government was unable to provide the originals of photos taken of paper, and therefore, violated the Best Evidence Rule.

*Holding*: Affirmed; The DC did not abuse its discretion in admitting the photographs which were admissible as duplicates in lieu of the original documents pursuant to FRE 1003. *Reasoning*: The Court sees no distinction between a photocopy and the photographs used in this case.

United States v. Carter (7th Cir. 1990) *Facts*: ∆ Steven Carter was charged in a two-count indictment under 18 USC with robbing the Acme Continental Credit Union in Chicago on Jan 9, 1989 and again on Jan, 20 1989. The jury verdicts of guilty on both counts *Rule*: 611(a) and 611(b) - exceeded the scope of cross examination

*Holding*: Affirmed; The DC did not act improperly in so ruling. A DC's evidentiary ruling are not subject to reversal unless the ∆ can show a clear abuse of discretion. The trial judge did not abuse his discretion by allowing the government to exceed the scope of Riggin's direct examination. *Reasoning*: 611(a) limits cross-examination to the subject matter of direct examination, it grants the trial court discretion to permit inquiry into addition matters as if on direct examination. The testimony elicited challenged some of the alibis that ∆ was presenting.

Rock v. Huffco Gas & Oil Co. (5th Cir. 1991) *Facts*: Richard Rock worked on an oil rig owned by Huffco Gas & Oil Company (Huffco) (defendant). Rock claimed that his foot had fallen through a rusted step on the rig, resulting in a sprained ankle. There were no witnesses to this incident. After Rock recovered from the ankle injury, he went to work on an oil rig owned by Dual Drilling Company (Dual) (defendant), and subsequently claimed that he had slipped on grease and reinjured his ankle. No one saw this incident either. As a result of the ankle injuries, Rock saw Dr. Delmar Walker and Dr. Fritz Rau (doctors). Rock gave the doctors a history of the two incidents. Rock died the following year. Rock's family members (plaintiffs) brought a negligence suit against Huffco and Dual. The plaintiffs sought to introduce into evidence Rock's written and oral statements to the doctors regarding the incidents. In depositions, the doctors stated that for purposes of medical treatment, they needed to know only that Rock had hurt his ankle, not necessarily the details of how he hurt his ankle. *PH*: The district court found that Rock's statements to the doctors were inadmissible hearsay. The district court granted the defendants summary judgment, finding that there was no admissible evidence that Rock had injured his ankle on the rigs. The plaintiffs appealed. *Issue*: Whether the statements were reasonably considered by the declarant as being pertinent to the diagnosis or treatment sought.

*Holding*: Affirmed; The DC was correct in ruling Rock's statements to his doctors as inadmissible under FRE 803(4) *Reasoning*: The doctor stated that they only needed to know that Rock had twisted his ankle; They did not need to know the additional detail that Rock may have twisted his ankle while stepping through a rusted out step or by slipping on grease.

Meyers v. United States (D.C Cir. 1949) *Facts*: Bleriot Lamarre and Bennett Meyers (defendant) were charged with perjury-related crimes in connection with Lamarre's testimony at a United States Senate hearing. At trial, the prosecution called Williams Rogers, who had questioned Lamarre at the Senate hearing, to testify to what Lamarre said at the hearing. The prosecution then introduced the stenographic transcript of the Senate hearing into evidence. *PH*: The United States District Court for the District of Columbia convicted Meyers. Meyers appealed, arguing that the transcript was the best evidence of Lamarre's testimony at the Senate hearing, and that Rogers's testimony should thus not have been admitted.

*Holding*: Affirmed; The District judge erred in excluding the oral testimony as to the earnings of the partnership. Since we perceive no prejudicial error in appellant's trial, the judgement entered pursuant to the jury's verdict will not be disturbed *Reasoning*: Here there was no attempt to prove the contents of the writing; the issue was what Lamarre had said, not what the transcript contained. Statements alleged to be perjurious may be proved by any person who heard them, as well as by a reported who recorded them in shorthand. *Dissent*: The transcript is, as a matter of simple, indispensable fact, the best evidence. The principle and not the rote of the law out to be applied.

United States v. Wood (9th Cir. 1991) *Facts*: ∆ argues that the DC erred in admitting into evidence a summary chart prepared by the govs expert while excluding from evidence a summary chart prepared by the defense expert *PH*: The gov moved to introduce the charts into evidence and the Court granted it without objections.

*Holding*: Affirmed; The chart was not supported by the proof. The DC did not err in masking the unsupported portion or in declining to admit the charts into evidence *Reasoning*: Wood was not entitled to a business loss deduction unless the property loss was held by Wood "primarily for sale to customers in the ordinary course of his trade or business.

Jaffee v. Redmond (U.S 1996) *Facts*: Mary Lu Redmond (defendant), a police officer, shot and killed Ricky Allen during a dangerous encounter while she was on duty. Jaffee, the administrator of Allen's estate (plaintiff), brought a wrongful death suit against Redmond, claiming that she used excessive force in the killing. At trial, the administrator questioned Redmond about counseling sessions she had had with a licensed social worker after the shooting. Redmond refused to testify about the sessions despite the district court's order to do so. The district judge instructed the jury that there was no legal justification for Redmond's refusal to answer the questions and that the jury could assume that the sessions with the social worker contained information unfavorable to Redmond *PH*: As a result, the jury found in favor of the administrator. The United States Court of Appeals for the Seventh Circuit reversed, recognizing a federal psychotherapist-patient privilege. The United States Supreme Court granted certiorari. *Issue*: Whether it is appropriate for federal courts to recognize a psychotherapist privilege under Rule 501 of the FRE. Whether a privilege protecting confidential communications between a psychotherapist and her patient "promotes sufficiently important interest to outweigh the need for probative evidence?

*Holding*: Affirmed; The conversations between the Redmond and Beyer and the notes taken during their counseling sessions ae protected from compelled disclosure under Rule 501 of the FRE. *Reasoning*: The denial of the privilege would frustrate the purpose of the state legislation that was enacted to foster these confidential communications. *Dissent*: The Court ignores the traditional judicial preference for the truth and ends up creating a privilege that is new, vast, and ill-defined.

United States v. Wilford (8th Cir. 1983) *Facts*: Wilford and three co∆s were convicted of extorting drivers at a waste treatment construction site in Cedar Rapids to join a Teamsters Union local.

*Holding*: Affirmed; The decision whether to allow party to present evidence in surrebuttal is committed to the sound discretion of the trial court. In this case we find no abuse of discretion by the trial judge in his refusal to allow the ∆s' surrebuttal. *Reasoning*: Even though a party is normally entitled to impeach the credibility of an opponent's key witness, in this case the investigator was not a key government witness, and in light of other evidence adduced at trial, his testimony regarding the similarity of the Pittsburgh-Des Moines incident to the incident for which the ∆s were being tried was merely cumulative.

United States v. Jackson (2nd Cir. 2003) *Facts*: Charles Jackson (defendant) and Steve Brown were charged with conspiring to import cocaine. Brown agreed to a plea bargain. During Brown's plea hearing, Brown pled guilty to the charges, but stated that he did not supervise Jackson as part of the conspiracy and did not ask Jackson to smuggle any cocaine. At Jackson's trial, Jackson sought to introduce Brown's statements into evidence. The district court declined to permit Jackson's introduction of the statements. A jury convicted Jackson, who appealed. *Issue*: Whether the Government had an opportunity and similar motive to examine Brown at his plea allocation.

*Holding*: Affirmed; The district court did not abuse its discretion in failing to admit Brown's plea allocution statements under Rule 804(b)(3) exception to the hearsay rule. *Reasoning*: The government's role at a plea proceeding is limited, and does not include the opportunity to engage in the type of examination contemplated by Rule 804(b)(1) The government does not have the same motive to examine the ∆ at a plea hearing as it does at other proceedings

Elgabri v. Lekas (1st Cir.1992) *Facts*: Dr. Elgabri alleged various violations of state and federal antitrust laws, as well as a common law claim of tortious interference with prospective business relationships, against various doctors affiliated at four Rhode Island hospitals. The jury found for the ∆s on all counts. *Rule*: Rule 611(a) and (c)

*Holding*: Affirmed; The does not have an unfettered right to call ∆s during his case-in-chief. The court reasonably held that 's examination of ∆s should be limited in the described manner in order to make the presentation of evidence effective and to avoid needless consumption of time. *Reasoning*: Rule 611(a) of the FRE places the mode and order of questioning in the trials discretion. We do not disturb decisions regarding courtroom management unless these decisions amount to an abuse of discretion that prejudices appellant's case.

United States v. Setien (11th Cir 1991) *Facts*: ∆ and four employees of Eastern Airlines were convicted of conspiracy to import cocaine. The ∆ had a witness testify that ∆ refused to involve himself in criminal activity. *PH*: The court ruled the testimony as irrelevant and was not admissible. *Rule*: 405(b) and 404(b)

*Holding*: Affirmed; The evidence was properly excluded. *Reasoning*: Evidence of good conduct is not admissible to negate criminal intent.

United States v. Wong (3d Cir. 1983) *Facts*: Wong (defendant) was charged with mail fraud and violation of the RICO statute. At trial, Wong took the stand, and the prosecution sought to introduce into evidence Wong's prior convictions of mail fraud and Medicare fraud under Rule 609(a)(2). Wong argued that the convictions should be excluded because their prejudicial effect outweighed their probative value *PH*: The trial court admitted the evidence and convicted Wong. Wong appealed. *Rule*: 609(a)(2) (2) for any crime regardless of the punishment, the evidence must be admitted if the court can readily determine that establishing the elements of the crime required proving — or the witness's admitting — a dishonest act or false statement. *Issue*: Whether a DC has any discretion to exclude, as duly prejudicial, evidence that a witness had previously been convicted of a crime involving dishonesty or false statement.

*Holding*: Affirmed; The general balancing test of FRE 403 is not applicable to impeachment by crimen falsi convictions under FRE 609(a)(2). *Reasoning*: The legislative history of rule 609(a)(2) demonstrates that the judge has no authority to prohibit the government's efforts to impeach the credibility of a witness by questions concerning a prior crimen falsi conviction. *Notes*: The argument is that the past conviction is

United States v. Weeks (5th Cir. 1990) *Facts*: ∆ was convicted after a jury trial of two counts of kidnapping, two counts of interstate transportation of a stolen vehicle and one could of carrying a firearm during a rime of violence and possessing a firearm as a convicted felon.

*Holding*: Affirmed; The government did not abuse its discretion and the firearm display does no constitute reversible error. *Reasoning*: The Court did not admit the firearm into evidence - which would have allowed the jury to examine it during deliberations 0 but allow it to be displayed for demonstrative purposes only.

United States v. Riccardi (3d. Cir. 1949) *Facts*: Riccardi (defendant) was charged with the interstate transportation of stolen goods. The goods belonged to Doris Farid and the thieves packed up the goods at Farid's request, but then stole them on route to their destination. At trial, the prosecution called Farid and Leo Berlow, an antiques expert who had seen the goods in question many times in Farid's house. The prosecution used lists of the goods taken from the indictment to refresh the witnesses' memory as to what was missing and their value. After reading the lists, both witnesses stated that they knew the goods independently and could identify them. Riccardi objected to the use of these lists because they were not created by either of the witnesses at the time of the theft when the facts were fresh. The trial judge overruled this objection. Riccardi was convicted. He appealed. *Issue*: Whether the witness who testified to these essentials were properly permitted to refresh their memory.

*Holding*: Affirmed; The judge did not abuse his discretion, either in determining that the witness testified from present recollection or in permitting the use of the lists described here in. *Reasoning*: On a number of occasions trial judge investigated the foundations of their claim to present recollection and satisfied himself as to its bona fides. *Notes*: - Present Recollection Revived: May be used to revive or stimulate a present recollection. (Rule 612). - What can be used for a witness's recollection? Anything.

United States v. Smith (C.A.A.F. 2010) *Facts*: While Cadet SR, a female cadet, was in the United States Coast Guard (USCG) Academy, she had consensual sex with a member of the USCG. This act could have jeopardized Cadet SR's ranking and career at the USCG. When Smith (defendant), another cadet at the Academy, heard a rumor about the incident, he asked Cadet SR about it. Cadet SR lied to Smith about the incident, telling him that the sex was nonconsensual. Cadet SR later told Smith the truth that the sex was consensual. Smith and Cadet SR then engaged in sexual relations, which were prohibited among cadets even if consensual. When Smith was investigated for these relations, Cadet SR told authorities that the relations were nonconsensual. Smith was charged with sexual assault. At trial, Smith sought to introduce, as evidence, Cadet SR's sex with the USCG member, as well as her lying to Smith about the details. Smith sought to impeach Cadet SR's credibility by demonstrating that because Cadet SR had previously lied about her sexual activity, she was more likely to be lying about the charges against Smith. *PH*: The trial court permitted Smith to introduce evidence that Cadet SR had lied to him about an indiscretion that could have jeopardized her ranking and career at the USCG. The trial court did not permit Smith to introduce the specifics of the indiscretion in that it was related to sex with a member of the USCG. Smith was convicted. The United States Coast Guard Court of Criminal Appeals affirmed. Smith filed a petition for review. *Issue*: Whether the evidence was properly admitted?

*Holding*: Affirmed; The military judge did not abuse his discretion; he provided Appellant what he was due under the Confrontation clause: an opportunity to impeach the complainant's credibility *Reasoning*: While Cadet SRs credibility was in contention, it is unclear why the lurid nuances of her sexual past would have added much to Appellant's extant theory of fabrication. *Notes*: The concurring/dissent says that this type of evidence is not within the scope of 412. "Evidence of past false complaints of sexual offenses by an alleged victim of a sexual offense is not within the scope of this rule and is not objectionable when otherwise admissible." The ∆ still claims that this is a false complaint that happened in the past, and it is relevant to show that that is what is happening again.

United States v. Bollin (4th Cir. 2001) *Facts*: ∆ is convicted of participating in an investment fraud scheme. ∆ contends that ∆ DC abused its discretion when it allowed evidence of a redacted version of his grand jury testimony, but it refused to allow him to present omitted portions. *Issue*: Whether the DC court abused its discretion.

*Holding*: Affirmed; The omitted testimony was not necessary to avoid misleading the jury or otherwise testimony place the admitted testimony in context. The fact that some of the omitted evidence arguably was exculpatory does not, without more, make it admissible under the rule of completeness. *Reasoning*: By invoking his Fifth Amendment privilege, Bollin made himself unavailable for the purpose of preventing his testimony, and he therefore cannot invoke the exception in Rule 804(b)(1).

United States v. Montana (7th Cir. 1999) *Facts*: ∆ demanded money for his favorable testimony

*Holding*: Affirmed; The only issue of credibility was whether the marshal was reporting the demand correctly and his testimony was not necessary. *Reasoning*: Performative utterances are not within the scope of the hearsay rule, because they do not make any truth claims.

Hatch v. Statefarm fire & Casualty Co. (Wyo. 1997) *Facts*: Statefarm refused to pay for damages caused by a fire bc they believed that Hatch started the fire himself. Hatch was charged with arson, but was found not guilty and sued Statefarm for breach duty of good faith and faith dealing, and IIED. Jury found for SF. *Issue*: Whether the evidence of the deposed expert explaining the weather SF complied with being "like a good neighbor" as advertised.

*Holding*: Affirmed; The question and answers in the depo went beyond the industry standard for good faith and fair dealing. *Reasoning*: The response would require no specialized knowledge, nor could have assisted the jury in understanding the evidence or determining an issue of fact.

Michelson v. United States U.S (1948) *Facts*: Michelson (defendant) was charged with bribing a federal revenue agent. At trial, Michelson's counsel called five witnesses to attempt to prove that Michelson had a good reputation in the community. On cross examination, the prosecution asked four of those witnesses if they ever heard that Michelson was arrested for receiving stolen goods. None of the witnesses had ever heard this, but the prosecution provided a record to the judge outside the presence of the jury to show that it had not simply fabricated the arrest to harm Michelson's reputation in the eyes of the jury. *PH*: Subsequently Michelson was convicted of the bribery charge. The court of appeals affirmed. Michelson appealed on the grounds that the prosecution was incorrectly permitted to cross examine the witnesses about the prior arrest. *Issue*: Whether the witnesses should have been crossed?

*Holding*: Affirmed; The question permitted by the trial court was proper cross-examination because reports of ∆'s arrest for receiving stolen goods, if admitted, would tend to weaken the assertion that he was known as an honest and law-abiding citizen. *Reasoning*: Wide discretion is accompanied by heavy responsibility on trial courts to protect the practice from any misuse. The trial judge was scrupulous to so guard it in the case. Even though limiting instructions can be confusing, here, the instructions are no more difficult to understand or apply than those upon various other subjects. This line of questioning tends to show that the witnesses lack information that would shape their opinion of the defendant. *Dissent*: The answer to the questions are not that the prosecutor was testing the witnesses' standard of opinion of reputation, but it was telling the jury what it could not prove directly and what the pet had no chance to deny, namely, that he had been so arrested; and thereby either insinuating that he had been convicted of the crime or leaving to the jury to guess that this bad been the outcome. This permits the trial of accused not for general bad conduct or reputation, but also for conjecture, gossip, innuendo and insinuation. Notes: 803(21) Reputation Concerning Character. A reputation among a person's associates of in the community concerning the person's character. - You can get into reputation once a ∆ makes reputation an issue.

PRL USA Holdings, Inc. v. United States Polo Association, Inc. (2nd Cir. 2008) *Facts*: RL USA Holdings, Inc. (Ralph Lauren) (plaintiff) held a trademark for its clothing logo, which consisted of a polo player with a raised mallet. The United States Polo Association (USPA) (defendant), a different clothing company, used four similar logos on its clothing. Ralph Lauren brought suit against USPA for trademark infringement in the United States District Court for the Southern District of New York. USPA claimed that Ralph Lauren was estopped from asserting trademark infringement because Ralph Lauren had acquiesced to USPA's use of its logos. USPA introduced the testimony of Merle Jenkins, a USPA employee, to establish that Ralph Lauren had consented during settlement negotiations to USPA using a certain version of the logo, and that this version was not offensive to Ralph Lauren. USPA claimed that, after being told this particular logo was not offensive to Ralph Lauren, USPA had spent significant money to roll out the logo on its clothing. Ralph Lauren objected to this testimony on the ground that it was part of a settlement negotiation and thus prohibited under Federal Rule of Evidence (FRE) 408. *PH*: The district court overruled Ralph Lauren's objection and found that three of USPA's four logos did not infringe upon Ralph Lauren's trademark. Ralph Lauren appealed.

*Holding*: Affirmed; The requested instruction was thus contrary to the plain language of Rule 408, and the DC did not err in refusing to give it. *Reasoning*: To construe Rule 408 as barring such evidence would substantially limit the opportunity of ∆s to rely on the defense of estoppel, even when well maintained.

Boujaily v. United States U.S (1987) *Facts*: An FBI informant arranged to sell a kilogram of cocaine and then Lonardo was recorded saying that he had a gentlemen friend who was interested, and the friend spoke to the informant about the quality of the drugs and subsequently they planned the deal and FBI agents arrested Lonardo after the gram was placed in his car in a hotel parking lot. *Rule*: 801(d)(2)(E) - was made by the party's coconspirator during and in furtherance of the conspiracy. BUT it is not enough on its own. *PH*: Charged with conspiring to distribute cocaine, and possession of cocaine with intent to distribute and sentenced to 15 years. The CoA affirmed.

*Holding*: Affirmed; The statements were properly admitted against petitioner. When preliminary facts relevant to Rule 801(d)(2)(E) are disputed, the offering party must prove them by a preponderance of the evidence. Even if out of Court declarations by coconspirators are presumptively unreliable, trial courts must be permitted to evaluate these statements for their evidentiary worth as revealed by the particular circumstances of the case. The government had established the existence of a conspiracy and petitioner's participation in it. A court in making preliminary factual determination under Rule 801(d)(E), may examine the hearsay statements sought to be admitted. *Reasoning*: The POE standard ensures that before admitting evidence, the court will have found it more likely than not that the technical issues and policy concerns addressed by the FRE have been afforded due consideration. The Rule (104) is sufficiently clear that to the extent that it is consistent with petitioner's interpretation of Glasser and Nixon, the rule Prevails.

United Stataes v. Casto (5th Cir. 1989) *Facts*: ∆ appeals her conviction in the USDC for the W.D of TX. ∆ contends that a break in the chain of custody pertinent to Gov exhibits have render them inadmissible.

*Holding*: Affirmed; The trial court was correct to admit the packages. *Reasoning*: Any question as to the authenticity of the evidence is then properly decided by the jury. *Notes*: A trial judged is correct in allowing physical evidence presented to the jury

United States v. Bernard (10th Cir. 1989) *Facts*: The ∆ appeals the judgment entered following his conviction of sixty-two criminal violations including [making the illegal nominee loans].

*Holding*: Affirmed; The ∆ willingly sacrificed his attorney-client privilege confidentiality and privilege by voluntarily disclosing the confidential communication to Mr. Treat. *Reasoning*: Any voluntary disclosure by the client is inconsistent with the attorney-client relationship and waives the privilege.

United States v. DeJohn (7th Cir. 1981) *Facts*: ∆ appeals a conviction on the chrage of uttering and publishing US Treasury checks in violation of 18 U.S.C §495

*Holding*: Affirmed; The ∆'s opportunity to gain access to the checks became a key issue. *Reasoning*: The testimony of the security officer and the policemen was highly probative of the ∆'s opportunity to gain acces to the mailboxes and obtain the checks that he chased at a later time knowing the checks contained forged endorsements.

Hollins v. Powell (8th Cir. 1985) *Facts*: Margie Hollins and other individuals (plaintiffs) were housing commissioners for the City of Wellston (City) (defendant). When Robert Powell (defendant) became the City mayor, he appointed his own housing commissioners. The plaintiffs nevertheless attempted to conduct a housing meeting, and Powell had them arrested. The plaintiffs brought suit against the City and Powell, claiming that their constitutional rights had been violated. The plaintiffs attempted to depose the City's attorney, but the City filed a motion to quash the deposition. The district court granted the plaintiffs' motion to compel the deposition, finding that the City was waiving the attorney-client privilege because it planned to use advice of counsel as a defense. At trial, the plaintiffs called Powell as a witness. During direct examination, Powell testified about his conversations with the City's attorney and his own attorney. The City did not object to the plaintiffs' questions. The plaintiffs then called the City's attorney to testify. The defendants objected to the attorney's testimony, but their objection was overruled. *PH*: The jury found in favor of the plaintiffs. The defendants appealed.

*Holding*: Affirmed; The ∆s had waived the attorney client privilege by the time the attorney was called as a witness because the City's attorney failed to object to the 's relevant questions of Powell. The court did not err by granting the 's motion to compel the deposition. The ∆ did not waive the privilege in the deposition, but they did during the trial. *Reasoning*: They ∆s adduced no evidence to support their assertion of the privilege. A client may waive the attorney-client privilege and may do so either expressly or by implication. Waiver will be implied when a client has testified concerning portions of the attorney-client communication.

United States v. Mehanna (1st Cir. 2013) *Facts*: In 2004, Terek Mehanna (defendant), an American citizen, travelled to the United Arab Emirates and Yemen. In 2005, Mehanna began translating Arab-language materials into English, which he posted on a website that supported al-Qa'ida and Salafi-Jihadi sentiments. Mehanna was subsequently charged with providing, conspiring, and attempting to provide material support to terrorists. At trial, terrorist-related media that Mehanna had circulated, including disturbing videos of beheadings of American civilians as well as al-Qa'ida propaganda, was admitted as evidence against him

*Holding*: Affirmed; There Is not reason to believe, on this record, that the verdict was the result of passion or prejudice. Terrorism trials are not to be confused with high tea at Buckingham palace. *Reasoning*: The sensibly controlled the ebb and flow of the evidence, took pains to minimize the impact of potentially inflammatory evidence. - Rule 404(b)(2)

United States v. Sasso (2nd Cir. 1995) *Facts*: ∆ Sasso and Armienti were convicted of trafficking in illegal firearms. Kramer, Armienti's ex-girlfriend, sought to testify against but ∆s, so the ∆s wanted to introduce evidence that Kramer was prescribed antidepressant medicine following an accident that resulted in the death of a fellow worker.

*Holding*: Affirmed; There was no indication that Kramer was delusional or paranoid or had any difficulties in memory or perception. *Reasoning*: There was no evidence that Kramer received or ingested any mood-altering drugs during the period which she was involved with Armienti. *Notes*: The ∆'s argument and type of impeachment is that the witness does not have capacity because the meds could change her

United States v. Standing Soldier (8th Cir. 1976) *Facts*: The DC permitted testimony concerning the note after Captain Hill testified that he had compared the signature on the note with that of appellant on the signature statement he had made and found them to be the same...

*Holding*: Affirmed; There was no requirement that the copy be introduced in preference to the oral. testimony. *Reasoning*: FRE 1004(1) provides that the "original is not required, and other evidence of the contents of a writing... is admissible if... all originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith.

Creaghe v. Iowa Home Mutual Casualty Co. (10th Cir. 1963) *Facts*: Creaghe was in a collision and sought damages from Osborne's insurance company, but they cancelled his claim.

*Holding*: Affirmed; This testimony was given by a witness to such a conversation as was the agent of appellee. *Reasoning*: This evidence is admissible because it is a part of an oral agreement to cancel the insurance policy.

State v. McNeely (Or. 2000) *Facts*: Michael McNeely (defendant) was charged with aggravated murder. At trial, the state sought to introduce testimony from Thompson, a jail inmate who testified to statements that McNeely allegedly made to him while they were both incarcerated. Specifically, Thompson testified that McNeely said he choked and killed the victim. McNeely moved to exclude the testimony based on the fact that Thompson could not identify McNeely in court as the inmate Thompson had spoken to in jail. Evidence presented at trial showed that McNeely and Thompson had met in jail several years prior and that McNeely had since gained 25 pounds and shaved off his moustache.

*Holding*: Affirmed; Thompson's inability to identify ∆ at trial went to the weight the jury might give to his testimony, not to its admissibility. *Reasoning*: Despite the inability to identify ∆ at trial, the court determined that a reasonable juror could find that ∆ was the person with whom Thomson had spoken in jail. The record supports that conclusion.

Luce v. United States U.S (1984) *Facts*: Luce (defendant) was charged with crimes related to his possession of cocaine. He filed a motion in limine to attempt to exclude evidence of a prior drug possession conviction if he decided to testify. Luce did not commit to testifying, nor did he proffer what he would testify about. The United States District Court for the Western District of Tennessee denied the motion, finding that the evidence of the prior drug possession conviction fell within the category of admissible impeachment evidence under Rule 609(a)(1). Possibly because of this ruling, Luce did not testify at trial. *PH*: The jury found him guilty. The United States Court of Appeals for the Sixth Circuit affirmed. The United States Supreme Court granted certiorari. *Rule*: 609(a)(1)

*Holding*: Affirmed; To raise and preserved for review the claim of improper impeachment with prior conviction, a ∆ must testify. *Reasoning*: On a record such as here, it would be a matter of conjecture whether the ∆ would have allowed the Government to attack petitioner's credibility at trial by means of the prior conviction.

*Facts*: Frank Kusar (defendant), a police officer for the City of Chicago (City) (defendant), entered the home of the Ellis family (plaintiffs) after receiving a tip. Kusar shot and killed the Ellises' dog. The Ellises sued Kusar and the City for damages. At trial, the Ellises called Officer Calandra and Sergeant Holub as witnesses. Calandra and Holub had worked for the City at all times relevant to the litigation. The district court denied the Ellises' request to ask the witnesses leading questions during direct examination. During direct examination, Calandra and Holub were not evasive or hostile. *PH*: The district court ruled in favor of the defendants. The Ellises appealed, arguing that the district court had abused its discretion by prohibiting the examination of Calandra and Holub with leading questions. The Ellises did not indicate what additional testimony could have been garnered by leading questions

*Holding*: Affirmed; Under these circumstances, any harm to plaintiff's from the DC's ruling is purely speculative. Officer Calandra and Sergeant Holub thus clearly qualified as "witnesses identified with an adverse party" for purpose of Rule 611(c). The court does not believe this conclusion requires reversal of the judgment. *Reasoning*: Such a decision will not be reversed absent a clear showing of prejudice to the complaining party. *Notes*: Nowhere do the s indicate what additional testimony they would have elicited had they been permitted to employ leading questions in their direct examinations of Officer Calandra and Sergeant Holub.

State v. Lewis (Tenn. 2007) *Facts*: Sabrina Lewis (defendant) helped set up a robbery of Gary Finchum's antique store. To do so, Lewis made an appointment to have Finchum appraise two vases. At the time of the appointment, the store was robbed. Finchum was shot during the robbery. Finchum told witnesses at the scene that he was shot in the heart. When the police arrived, Finchum told Detective Mike Chastain that the contact information of the "lady with the vases" was on Finchum's desk. The piece of paper to which Finchum referred contained Lewis's name and the words "two vases." When asked whether he thought the lady was involved in the robbery, Finchum said, "I know she is." Finchum died as a result of his wounds. *PH*: The trial court admitted Finchum's statements over Lewis's objection, under the dying-declaration exception to the hearsay rule. Lewis was convicted of criminally negligent homicide. Lewis appealed. *Issue*: Whether they should have excluded under the rule in Crawford, which not only requires the unavailability of the declarant, which was obviously satisfied, but the opportunity for cross examination, which was not.

*Holding*: Affirmed; Under these circumstances, it is the view of the court that the statement, while an expression opinion and testimonial in nature, was admissible as a dying declaration, an evidentiary rule which has survived Crawford and its progeny. *Reasoning*: 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. The record suggest that the victim's identification of the ∆ is "rationally based upon the perception" of the victim... *Notes*: - Even if statements are testimonial, this was an exception established at the time that Crawford was decided.

Higgins v. Hicks Co. (8th Cir. 1985) *Rule*: 411. Liability Insurance *PH*: plaintiff contends that it was error for the C to refuse to admit evidence that the State of South Dakota carries liability insurance.

*Holding*: Affirmed; We believed that evidence of the state's liability insurance was irrelevant to any issues in this case and that the evidence was properly excluded by the DC. *Reasoning*: It is not admissible to prove negligence of the insured person. The advisory committee not to Rule 411 indicates that "knowledge of the presence or absence of liability insurance would induce juries to decide cases on improper grounds.

Beard v. Mitchell (7th Cir. 1979) *Facts*: Plaintiff, Beard, appeals from a jury verdict finding the defendant, Mitchell, not guilty of depriving her deceased brother of rights secured by the Constitution. *Rule*: 608(a)(2)

*Holding*: Affirmed; We cannot conclude that the trial judge abused his discretion in allowing the testimony. *Reasoning*: The use of prior inconsistent statements may constitute an attack on truthfulness. *Notes*: Most of the time a prior inconsistent statement is due to memory or perception issues, which does not seem to be an attack on their character, but Judges have to make case by case determinations about the evidence.

United States v. Lollar (5th Cir. 1979) *Facts*: Howard Lollar (defendant) was charged with interstate transportation of stolen property. He testified in his own defense at trial. After his testimony, the prosecution called one of his former employers and asked the employer whether he would believe what Lollar said under oath. Lollar objected to this question but was overruled. The witness said that he would not believe Lollar's testimony *Rule*: 608(a) *PH*: Lollar was convicted. He appealed.

*Holding*: Affirmed; We hold the DC was acting well within its discretion in overruling defense counsel's objection *Reasoning*: Although a criminal defendant cannot be compelled to take the stand in his own defense, once he chooses to testify "he places his credibility in issue as does any other witness"

United States v. Davis (5th Cir. 1981) *Facts*: Attorney Craig Davis appealed from a judgment enforcing an IRS summons requiring him to produce documents relating to the tax liability.

*Holding*: Affirmed; neither category of documents is privileged, because although preparation of tax return by itself may require some knowledge of the law, it is primarily an accounting service. *Reasoning*: It would make little sense to permit a tax payer to invoke a privilege merel becayse he hires an attorney to perform the same task. The summons to Davis must therefore be enforced in its entirety. *Notes*: Information transmitted for the purpose of preparation of a tax return, though transmitted to an attorney, is not privileged information.

United States v. Laster (6th Cir. 2001) *Facts*: In 1993, the Universal Testing Corporation notified James Aquisto, a detective for the drug task force, that one of its employees, James Laster (defendant), had ordered a chemical used to make methamphetamine from the Wilson Oil Company in UTI's name without its permission. In August 1994, a car carrying Jerry Lear (defendant) and Laster was stopped for reckless driving. Methamphetamine was found in the car. Lear and Laster were charged with numerous narcotics crimes. At trial, the prosecution sought to introduce certain records from the Wilson Oil Company, including invoices showing the orders Laster placed. Wilson, the sole owner and operator of the Wilson Oil Company, died before the trial. The prosecution called Aquisto to lay the foundation for their admission as business records under Federal Rule of Evidence 803(6). *PH*: The district court held the records admissible either under the business records exception of Rule 803(6) or the residual exception of Rule 807. Lear and Laster were convicted and appealed. *Issue*: Whether the evidence was admissible?

*Holding*: Affirmed; the DC did not err in admitting the records of Wilson Oil Co as they were admissible under 807. *Reasoning*: This Court interprets 807 , along with the majority of circuits, to mean that "if a statement is admissible under one of the hearsay exceptions, that exception should be relied on instead of the residual exception.

United States v. Gould 8th Cir. 1976 *Facts*: Charles Gould and Joseph Carey (defendants) were tried for conspiring to import and importing cocaine into the United States in violation of the Comprehensive Drug Abuse and Control Act of 1970 (Act). Evidence at trial showed that Gould and Carey enlisted the help of Barbara Kenworthy to smuggle approximately two pounds of cocaine in a pair of hollowed-out platform shoes, which was discovered when a customs agent at Miami airport x-rayed the shoes. Two experts offered testimony identifying the substance in the shoes. One expert testified the substance was sixty percent cocaine hydrochloride and testified the substance was fifty-three percent cocaine. The government did not offer direct evidence showing that the substance cocaine hydrochloride was a derivative of coca leaves. At the conclusion of the trial, the judge instructed the jury that if it found the substance in the shoes to be cocaine hydrochloride, then the substance is a Schedule II controlled substance under the Act. Schedule II however, listed only coca leaves and derivatives thereof, and did not specifically list cocaine hydrochloride *PH*: Gould and Carey were convicted and appealed their convictions to the United States Court of Appeals for the Eighth Circuit. Gould and Carey asserted on appeal that the court erred in judicially noticing that cocaine hydrochloride is a Schedule II controlled substance and that the government should have been required to prove this fact. Gould and Carey also asserted as error the judge's failure to instruct the jury that it could disregard the judicially noticed fact as required by Federal Rule of Evidence (FRE) 201(g). Issue: Whether it was error for DC to take judicial notice of the fact that cocaine hydrochloride is a schedule II-controlled substance. Whether, if the judicial notice was permissible, the DC erred in instructing the jury that it must accept this fact as conclusive.

*Holding*: Affirmed; the DC was not obligated to inform the jury that it could disregard the judicially noticed fact. In fact, to do so would be preposterous, thus permitting juries to make conflicting finds on what constitutes controlled substances under federal law. *Reasoning*: It is clear that Rule 201 extends only to adjunctive, not legislative, facts. *Notes*: you cannot have mandatory presumptions regarding the essential elements of the crime. The Court may take judicial notice at any stage of the proceeding. Instructing the jury in a civil case the Court must instruct the jury to accept the noticed fact as conclusive. In a *criminal case* the court *must* instruct the jury that it *may or may not* accept the noticed fact as conclusive. Legislative facts are used when they're trying to determine policy issues.

United States v. Gonzales-Benitez (9th Cir.1976) *Facts*: Gonzales-Benitez and Ambrosio Hernandez-Coronel (defendants) were charged with distribution of heroin. Law enforcement officials recorded conversations with the defendants that tended to inculpate them in the crime. The prosecution called those officials and they testified as to what the defendants said in the recorded conversations. The prosecution did not admit the tapes themselves into evidence. The defendants objected to the testimony, claiming that the tapes themselves were the best evidence of the conversations *PH*: The trial court overruled the objection and convicted the defendants. They appealed.

*Holding*: Affirmed; the TC was corrected in dismissing the objection out of hand *Reasoning*: The rule does not set up an order of preferred admissibility, which must be followed to prove any fact. It is, rater a rule applicable only when one seeks to prove the contents of the documents or recordings.

Government of the Virgin Islands v. Roland (3rd Cir. 1979) *Facts*: Juan Roldan (defendant) was charged with murder. At trial, the prosecution called Luz Maria Cruz, the wife of Roldan's nephew, to testify. On cross-examination, Roldan's counsel asked Cruz if she had ever seen people going to Roldan's house and if she thought Roldan was generally a loner. Cruz responded saying that Roldan was "a man that never bother anybody." On redirect examination, the prosecution asked Cruz if she was aware of Roldan's prior conviction for first-degree murder. In doing so, the prosecution sought to rebut the defense's implication that Roldan would never have a reason to kill someone. Roldan sought to exclude this question as impermissible character evidence. *PH*: The district court permitted the question and convicted Roldan, who appealed. *Issue*: Whether the questions should have been permitted.

*Holding*: Affirmed; the court's admission of the Government's impeachment testimony was thus proper. Even if Roland has preserved this point for appeal, we find no error. *Reasoning*: The DC determined that by asking the questions about Roland's social habits, Roland's counsel had put Roland's character in issue.

United States v. Lebel (2d Cir. 1979) *Facts*: Lebel and several co∆s were convicted of conspiring to import heroin from Thailand into the United States. *Rule*: 613, 801(d)(1) *Issue*: Whether it was harmless?

*Holding*: Affirmed; the error was harmless. *Reasoning*: Under that definition, the identification or nonidentification of persons in a courtroom can be termed a statement. *Notes*: Extrinsic evidence is okay, but witness must have a chance to repond

Tasby v. United States (8th Cir. 1974) *Facts*: ∆ claims that he was coerced into taking the stand by Mr. Peek's, his attorney's, statements that he would get 25 years to life if he did not testify.

*Holding*: Affirmed; ∆ waived his privilege *Reasoning*: When a client calls into public question the competence of his attorney, the privilege is waived.

United States v. Gibson (9th Cir. 1982) *Facts*: A cooperating witness for the prosecution was keeping a record of drug trafficking and was admitted as a business record exception of Rule 803(6).

*Holding*: All appellant's convictions are counts are affirmed. *Reasoning*: The entries were made at or near the time of the events described and they satisfied the regularity requirement. Their

Leblanc v. PNS Stores, Inc. (E.D La. Oct. 21, 1996) *Facts*: ∆ filed a motion under FRE 706 seeking a court-appointed physician.

*Holding*: Although Rule 706 is discretionary with the DC, it is appropriate only in rare circumstances and cannot be utilized as an alternative to communication and the adversary process. *Reasoning*: The ∆ has not demonstrated the necessity of appointing an independent physician.

Government of the Virgin Islands v. Knight (3d Cir. 1993) *Facts*: Henry Knight (defendant) killed Andreas Miller when, as he was hitting Miller in the head with his gun, the gun went off. Knight claimed that the gun's discharge was accidental. At trial, the district court excluded testimony of an eyewitness who was prepared to testify that in his opinion the gun went off accidentally. The court did allow the eyewitness to testify that Knight never pointed the gun at Miller and that he never threatened to shoot Miller. *PH*: The district court then convicted Knight of voluntary manslaughter. Knight appealed.

*Holding*: Although we agree that the DC committed error by excluding the eyewitness' lay opinion, this error did not prejudice the ∆ and therefore does not warrant a reversal of his conviction. *Reasoning*: The opinion of an unbiased witness certainly may be viewed by a jury as more credible than the opinion of a criminal ∆. In this case, however, only a modicum of evidence was necessary o provide the accident theory of the defense because the prosecutor barely disputed that the shooting was an accident.

Bandera v. City of Quincy (1st Cir. 2003) *Facts*: π made a claim against the city for sexual harassment and was awarded $135k in punitive damages. The city appealed because at trial a witness (Coletta) was allowed to testify not only to her own experiences, but also the impact of what the π reported. The city did not object.

*Holding*: An objection, if its basis is not obvious, is not preserved unless the ground is stated. (FRE 103(a)(1)) The failure to preserve the objection means review is at most for plain error (FRE 103(d))

Subramaniam v. Public Prosecutor (Privy Counsel 1956) *Facts*: Subramaniam (defendant) was found by security forces and upon searching him, they found ammunition on his person, which was illegal. Subramaniam claimed that he had been captured by terrorists and was under duress which was the reason he was carrying the ammunition. In supporting his defense, Subramaniam sought to introduce into evidence what the terrorists said to him.

*Holding*: Appeal allowed; the court feels unable to hold with confidence that had the evidence been admitted, the result would have been the same. In ruling out peremptorily the evidence of conversation between the terrorist and the appellant the trial judge was in error. *Reasoning*: It is hearsay and inadmissible when the object of the evidence is to establish the truth of the matter asserted. 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 is was made.

Bemis v. Edwards (9th Cir. 1995) *Facts*: Appellant brought a civil action against officers for use of excessive force. Appellant argues that evidence was improperly excluded from portions of a tape recording of a 911 emergency call made by Gary Estep. *Rule*: 803(2) - (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. 803(1) - (1) Present Sense Impression. A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it. 602 - Personal Knowledge *Issue*: Whether the evidence was properly excluded.

*Holding*: Because there are affirmative indications that the declarant firsthand knowledge of the events he described, the court held that the DC did not abuse discretion in refusing to admit the Estep Statement ...Affirmed. Although Estep's statement satisfied the requirement of nearly contemporaneous with the incident w/o time for reflection, BUT it does not meet the requirement of personal knowledge. *Reasoning*: Estep could not describe what was happening outside, and he was repeating the words of an unidentified background voice. Generally, a witness must have personal knowledge of the matter to which she testifies

United States v. Gentry (7th Cir. 1991) *Facts*: Gentry told employees at the mall as well as mall security that when he bit into an M&M that there was a pin in it. He was prosecuted for making a false report of food tampering. Gentry objects to testimony from an employee of the manufacturer that there were no other reports of pins in the candy. *Issue*: Whether the evidence was admissible?

*Holding*: Conviction affirmed. *Reasoning*: FRE 803(7) allows this use for business records to show the nonoccurrence of an event. *Rule*: 803(7)(A): 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; *Notes*: - If you were to object to the testimony you would argue about the process by which this sort of report is documented.

United States v. Elem (8th Cir. 1988) *Facts*: ∆ was arrested for possession of a firearm as a convicted felon and argues against a pretrial motion in limine that excluded the ∆'s response of "no" when he was asked if the gun was his. He claims the statement is admissible under 803(2). *Rule*: 803(2) - (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

*Holding*: Conviction affirmed; There is nothing in the record to support appellant's contention that he was unduly excited as to alter any of his conscious reflections. *Reasoning*: It is the excitement and the spontaneity that supply the indica of trustworthiness and reliability which supports the admission of hearsay under this exception. *Notes*: - When you have a motion and a brief backing it up. In the facts, explain why it is *FAIR* that you should win the case. That way you will win evidentiary disputes that can go either way.

Fisher v. Swartz (Mass. 1955) *Facts*: A plaintiff brought suit against a defendant to recover for labor and construction materials. During the plaintiff's testimony at trial, he used a copy of a bill he had sent to the defendant in order to refresh his recollection of the contents of the bill. The bill was itemized and contained over 100 items. After the testimony, the trial court admitted the bill into evidence over the defendant's objection. The trial court ruled in favor of the plaintiff. The defendant appealed.

*Holding*: Further study of the question has convinced us that both reason and authority lead to the conclusion that the writing ought to be admissible as evidence. The trial judge did not err in admitting the statement in question and that to the extent that the Bendett case is opposed to this view we decline to follow it. Exceptions overruled. *Reasoning*: Rather than say the admission of the writing is error, but error that does no harm, we think that it is better to say that there is no error at all It may be fairly inferred that the writing was a record of the witness' past recollection and was treated as such by counsel and the trial judge.

Hanson v. Waller (11th Cir. 1989) *Facts*: The action is on behalf of the deceased who died of injuries after an accident by Appellee. The appellants argue that it was error to admit a letter from appellant's first attorney admitting there is no way the driver could see the deceased.

*Holding*: In the instant case, the letter sent by Mr. Thompson to Mr. Dorsey was clearly related to the management of the Appellants' litigation. Finally, we observe that the Appellants have not demonstrated that the revelation of the contents of the letter was harmful to their case at trial. No error. *Reasoning*: Although an attorney does not have authority to make an out of court admission for his client in all instances, he does have authority to make admissions which are directly related to the management of litigation.

Cleghorn v. New York Central & Hudson River R.R. Co. N.Y (1874) *Facts*: Hartman, a railroad switchman working for New York Central & H. River Ry. Co. (NY Central) (defendants), caused an accident by failing to close a switch before giving a signal to an oncoming train that the track was ready for use. Cleghorn (plaintiff) brought suit for negligence and sought to prove not only that Hartman was drunk at the time of the accident, but that he was a man of "intemperate habits," and that those habits were known by NY Central who had the power to fire him. *Rule*: 404(a)

*Holding*: It is sufficient to say that the evidence was competent upon the question of gross negligence on the part of the ∆ in employing or continuing the employment of a subordinate known to be unfit for his position by reason of intoxication. *Reasoning*: Previous intoxication would not tend to establish an omission to give the signal on the occasion of the accident.

Hanson v. Johnson (Minn. 1924) *Facts*: Hanson (plaintiff) leased a farm to Schrik, and retained the rights to two-fifths of the corn grown on the farm. Schrik mortgaged his share of the crops to the bank, which sold Schrik's property at auction with Schrik's permission. Part of this sale was 393 bushels of corn, which were purchased by Johnson (defendant). Hanson brought a conversion suit against the bank and Johnson, seeking to recover damages for the corn. At trial, Hanson introduced evidence, over Johnson's hearsay objection, that Schrik had told him that the corn in question was his share under the terms of the lease. Specifically, Hanson testified that Schrik said: "Mr. Hanson, here is your corn for this year . . . this belongs to you, Mr. Hanson."

*Holding*: It was competent evidence. It was not hearsay; affirmed. *Reasoning*: There could be no division without words or gestures identifying

Leake v. Hagert (N.D 1970) *Facts*: On October 25, 1966, Allen Leake (plaintiff) was driving his tractor and plow on a public highway after sunset. Charlotte Hagert (defendant) drove her car into the rear of Leake's plow, which was being towed by his tractor.At trial, the trial court admitted testimony from Edward Gross, an adjuster who conducted an investigation of the accident. Gross testified that he spoke to Leake's son, who told him that a rear red light on the tractor had been broken for some time. At least three other witnesses testified about the condition of the rear red light.

*Holding*: It was error to admit the testimony of Leake's son, however, the hearsay statement was not prejudicial. Affirmed. *Reasoning*: Error in the admission of evidence not a ground for new trail unless such error affects the substantial rights of the parties.

Giles v. California U.S (2008) *Facts*: Giles (defendant) shot and killed his ex-girlfriend, Brenda Avie. Giles claimed self-defense. The prosecution sought to introduce into evidence statements that Avie made to the police in relation to a domestic violence report Avie filed a few weeks prior to the shooting. In the statement, Avie claimed that Giles choked her, punched her, and threatened to kill her. The parties did not dispute that Avie's statements were testimonial. The trial court allowed the statements to be introduced and convicted Giles. The California Supreme Court affirmed the admission of the statements and the conviction, holding that Giles forfeited his confrontation right because his act of killing Avie created her unavailability as a witness. The United States Supreme Court granted certiorari. *Rule*: 804(b)(6) (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. *Issue*: Whether the theory of forfeiture by wrongdoing accepted by the California Supreme Court is a founding era exception to the confrontation right.

*Holding*: Not only was the State's proposed exception to the right of confronting plainly not an exception established at the time of the founding; it is not established in American jurisprudence since the founding, *Reasoning*: Commentators have concluded the requirement of intent means "that the exception applies only if the ∆ has in mind the particular purpose of making the witness unavailable." Notes: - The California Supreme Court's reasoning is that a ∆ should not be able to benefit from their wrongdoing. However, this exception only allows the testimony to be admitted when the ∆ had intended to make the declarant unavailable for trial when he committed the act. - The question is, did he kill her to silence her?

United States v. Phelps (E.D Ky. 1983) *Facts*: The ∆ was prosecuted for the willful possession of marijuana and cocaine. The ∆ sought to introduce a statement he made that the gym bag was his but that the codefendant put it in the trunk. The objection was made by the codefendent.

*Holding*: Objection sustained; The statement of a party may be introduced as an admission only when offered against that party Therefore, the court sustained the objection and excluded the testimony. *Reasoning*: Although the proponent of the testimony was the declarant himself the testimony constituted hearsay under F.R. Ev. 801.

United States v. Danehy (11th Cir. 1982) *Facts*: Danehy appeals a conviction for forcibly resisting, opposing, impleading, and interfering with Coast guardsmen while they were engaged in the performance of their duties,

*Holding*: Properly denied the ∆'s request to recall a witness to testify to his reputation. *Reasoning*: The mere fact that a witness is contradicted by other evidence in a case does not constitute an attack upon his reputation for truth and veracity. *Notes*: 608(a) - . . .but evidence of truthful character is admissible only after the witness's character for truthfulness has been attacked.

Beech Aircraft Corp. Rainey U.S (1988) *Facts*: plaintiff's wife was killed during a pilot training exercise along with her student, and he wrote a report that explained what he thought happened, but when cross examined he asked about a specific section of the report that may have showed human error, however, they objected on redirect when tried to explain what the entire report said. The opposing party misled the jury to believe that the believed his wife caused the crash when the entire report explains the opposite. *PH*: Jury returned a verdict for petitioners. A panel of the 11th Cir. reversed and remanded for a new trial. *Rule*: FRE 803(8)(c)????? 803(8)(A)(iii) - A record or statement of a public office if: (A) it sets out: (iii) in a civil case or against the government in a criminal cae, factual findings from a legally authorized investigation; and 803(8)(B) - the opponent does not show that the source of the information or the circumstances indicate a lack of trustworthiness. *Issue*: Whether FRE 803(C), which provides an exception to the hearsay rule for public investigatory reports containing "factual findings," extends to conclusions and opinions contained in such reports?

*Holding*: Reverse the CoA in respect to the 803(8)(A)(iii) issue. Factually based conclusions or opinions are not on that account excluded from the scope of Rule 803(8)(C). Portions of investigatory reports otherwise admissible under Rule 803(8)(C) are not inadmissible merely because they state a conclusion or opinion. As long as the conclusion is based on a factual investigation and satisfies the Rule's trustworthiness requirement, it should be admissible along with other portions of the report. *Reasoning*: Rather than drawing an arbitrary line between various shades of fact/opinion that will be present in investigatory reports, the Rule instructs - in its plain language - to admit "reports...setting forth...factual findings." *Notes*: - Statements of fact are only more specific statements of opinion.

Diehl v. Blaw-Knox (6th Cir. 2004) *Facts*: Timothy Diehl (plaintiff) was a construction worker for IA Construction, Inc. (IA). Diehl was injured on the job while using a road widener manufactured by Blaw-Knox (defendant). Diehl was walking behind the widener, as was common practice, when the widener went into reverse and crushed Diehl's leg with one of its tires. Diehl brought a design-defect suit against Blaw-Knox. Diehl sought to introduce evidence that, shortly after Diehl's injury, IA (1) welded a rear bumper on the widener, covering the rear tires; (2) moved the back-up alarm from the front of the widener to the back; and (3) added a warning sign to the back of the widener. *PH*: The district court declined to admit the evidence, citing Federal Rule of Evidence (FRE) 403 and potential juror confusion, as well as FRE 407. The district court ruled in favor of Blaw-Knox. Diehl appealed.

*Holding*: Reversed and Remanded for new trial. Because Rule 407 does not apply to evidence of subsequent remedial measures taken by a nonparty, it was error for the DC to exclude evidence of the IA redesign under that rule. Because we conclude that the exclusion of this evidence was not harmless error, we will reverse the judgment of the DC and remand for a new trial. *Reasoning*: The admission of remedial measures by a nonparty necessarily will not expose that nonparty to liability, and therefore will not discourage the nonparty from taking the remedial measures in the first place. We find no dispute in the record that the IA redesign was done in direct response to Mr. Diehl's accident and for the sole purpose of preventing such accidents.

Southern Stone Co. v. Singer (5th Cir. Unit B 1982) *Facts*: Southern Stone was suing to receiving a judgment against S&M for a bill on limestone. Southern Stone argues that Moore's action of not responding to the letter admitted was an adoption of the letter or the truth of it.

*Holding*: Reversed and Remanded; Because there was no other applicable hearsay exception for which Southern Stone laid an adequate foundation, the letter was inadmissible. *Reasoning*: The letter involves two levels of hearsay: the letter says that Southern Stone's counsel said (first level) that Moore made certain admissions (second level). All circumstances surrounding this letter do not support a reasonable expectation of any response. The mere failure to respond to a letter does not indicated an adoption unless it was reasonable under the circumstances for the sender to expect the recipient to respond and to correct erroneous assertions.

General Electric Co. v. Joiner U.S (1997) *Facts*: Robert Joiner (plaintiff) worked as an electrician for the Water and Light Department in Thomasville, Georgia. As part of his job, he came into frequent contact with a mineral-based dielectric fluid, used as a coolant. After several years, it was discovered this fluid contained significant amounts of hazardous chemicals. These chemicals were banned in the United States in 1978. Joiner continued working as an electrician, but in 1991, he was diagnosed with small cell lung cancer. Joiner sued General Electric Co (GE) (defendant) and Westinghouse Electric (WE) (defendant), both manufacturers of the dielectric fluid. In his complaint, Joiner linked his cancer to exposure to the fluid. However, Joined had also been a smoker for eight years, and both his parents were smokers. There was also a history of lung cancer in his family. Although admitting he may have already been at a heightened risk for lung cancer, Joiner alleged his exposure to the fluid "promoted" his cancer. He stated that but for his exposure to the fluid his cancer likely would not have developed for many years, if at all. At trial, GE and WE presented expert testimony stating that there was no evidence Joiner was actually exposed to the hazardous chemicals, and there was no evidence of a link between exposure to the chemicals and small cell lung cancer. *PH*: The district court admitted this testimony but excluded the counter testimony of Joiner's experts on the ground that it did not rise above "subjective belief or unsupported speculation." The court of appeals reversed after applying a "particularly stringent standard of review." The United States Supreme Court granted certiorari on the issue of the standard of review. *Issue*: Whether these experts' opinions were sufficiently supported by the animal studies on which they purported to rely

*Holding*: Reversed and Remanded; The CoA erred in its review of the exclusion of Joiner's experts' testimony. In applying an overly "stringent" review to that ruling, it failed to give the trial court the deference that is the hallmark of abuse-of-discretion review *Reasoning*: Nothing in Daubert or the FRE requires a DC to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert. A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered.

United States v. Rowe (9th Cir. 1996) *Facts*: Charles Rowe (defendant) was the senior partner at a law firm (defendant). Rowe became concerned that Lee McElravy, an attorney at the firm, was mishandling client funds. Rowe assigned two of the firm's associate attorneys to investigate McElravy. While investigating McElravy, a grand jury subpoenaed the associates to ask them about their discussions with Rowe regarding McElravy. The associates and Rowe asserted the attorney-client privilege, claiming that the discussions were protected against disclosure because Rowe was the law firm's attorney. *PH*: The district court found that the associates were not providing legal services, because they were assigned merely to conduct factfinding for Rowe. As a result, the district court ordered the associates to testify about the discussions. Rowe and the law firm appealed. *Issue*: Whether the privilege was effective prior to hiring outside counsel.

*Holding*: Reversed and Remanded; The activities here meet the attorney client and professional legal service requirements for the privilege. *Reasoning*: Neither is stripped of the privilege because hiring the professional was convenient

United States v. Lewis (9th Cir. 1987) *Facts*: The gov appeals from the DC suppressing a confession on motion of ∆ in bank robbery. The ∆ argues that the confession was not voluntary bc it was after she had surgery and was under an anesthetic. Then the judge comments to his personal experience with anesthesia

*Holding*: Reversed and Remanded; The argument that the judge was giving judicial notice is unpersuasive. *Reasoning*: the prosecution was denied the opportunity to contrast the nature of the illness or injury suffered by the judge with Lewis's abscessed shoulder, the amount of anesthesia administered to each, or the actual statements made by the judge which others characterized as "incredible" with the Reponses made by the ∆ in this matter.

Old Chief v. United States 519 U.S 172 (1997) *Facts*: Old Chief (defendant) was charged with violation of a federal statute making it illegal for a convicted felon to carry a firearm. Old Chief had previously been convicted of assault causing serious bodily injury, a felony. He sought to stipulate to the evidence of his prior conviction and have the court so instruct the jury. In doing so, he sought to prevent the prosecution from proffering any other evidence about his prior conviction on account of its unnecessary prejudicial effect against him in the eyes of the jury. The district court denied Old Chief's offer to stipulate and admitted the full record of his prior conviction

*Holding*: Reversed and Remanded; The only reasonable conclusion was that the risk of unfair prejudice did substantially out-weigh the discounted probative value of the record of conviction, and it was an abuse of discretion to admit the record when an admission was available. *Reasoning*: Although propensity evidence is relevant, the risk that a jury will convict for crimes other than those charged - or that, uncertain guilt, it will convict anyway because a bad person deserves punishment - creates a prejudicial effect that outweighs ordinary relevance The most the jury needs to know is that the conviction admitted by the ∆ falls within the class of crimes that Congress thought should bar a convict from possessing a gun *Opposing Argument* - Dissent: The Government may not be forced to accept a ∆'s concession to an element of a charged offense as proof of that element.

Chambers v. Mississippi U.S 284 (1973) *Facts*: Chambers (defendant) was accused of murdering a police officer during a confrontation between police and a hostile crowd. Several months after Chambers' arrest, McDonald spoke with Chambers' attorneys and gave a written confession to the murder. McDonald repudiated his confession at a subsequent preliminary hearing and was released from custody. At trial, Chambers called McDonald as a witness and had his confession admitted into evidence. After the prosecution cross-examined McDonald, Chambers moved to examine him as an adverse witness in order to challenge the credibility of his subsequent repudiations of his confession. The trial court denied his request for adverse examination. Chambers attempted to elicit testimony of three additional witnesses who would have presented evidence of conduct and statements tending to validate McDonald's confession. *PH*: The trial court excluded the admission of testimony from each witness on hearsay grounds. Chambers was convicted and appealed through the state courts. The state courts upheld his conviction and Chambers petitioned the United States Supreme Court for review. *Issue*: Whether petitioner's trial was conducted in accord with principles of due process under the Fourteenth Amendment.

*Holding*: Reversed and Remanded; the exclusion of this critical evidence, coupled with the State's refusal to permit Chambers to cross-examine McDonald. Denied him a trial in accord with traditional and fundamental standards of due process. *Reasoning*: The testimony rejected by the trial court here bore persuasive assurance of trustworthiness and thus was well within the basic rationale of the exception for declarations against interest. *Notes*: The SC is wrong bc the Declaration Against Interest only applies when the declarant is unavailable. The SC cannot tell the State Supreme Court that they applied their evidentiary rules incorrectly. - Even when evidentiary rules exclude evidences, there are often Constitutional rules that require the admission of evidence anyway. *When the *ends of justice so require*. Which means there is compelling evidence that the ∆ was innocent and it seems reliable. 807(a)(4).

Charter v. Chleborad (8th Cir. 1977) *Facts*: The plaintiff had surgery on both of his legs. As a result of surgery complications, he had to have both legs amputated. He brought a medical malpractice suit against the surgeon (defendant). At trial, John Alder, an attorney, testified for the defense. On cross-examination, Alder testified that some of his clients were insurance companies in medical malpractice cases. The plaintiff asked him which companies, specifically, he represented but the trial court upheld the defendant's objection to the questioning. *Rule*: 411. Liability Insurance *PH*: The jury found for the defendant and the trial court denied the plaintiff's motion for a new trial. In that motion, the plaintiff stated that one of Alder's clients was the same insurance company that represented the defendant. The plaintiff appealed.

*Holding*: Reversed and remanded for new trial; Considering the importance of expert testimony in this case we cannot conclude that the trial court's exclusionary ruling was mere harmless error. *Reasoning*: The fact that the insurer employed Mr. Alder was clearly admissible to show possible bias of that witness.... 's claim rested for the most part on the credibility of his witness. *Notes*: - The plaintiff was trying to show bias. - Could make the argument that liability insurance shows that the insured does not care about the risk because they have coverage, however, the opposite could be argued, showing they have it because they are cautious.

United States v. LeCompte (8th Cir. 1997) *Facts*: LeCompte (defendant) was charged with sexual abuse of his wife's 11-year-old niece. The prosecution sought to introduce evidence of LeCompte previously sexually abusing the niece of his first wife. *PH*: The district court excluded the evidence, ruling that its prejudicial effect outweighed its probative value under Rule 403 of the Federal Rules of Evidence. The prosecution appealed. *Issue*: Whether TT testimony in LeCompte's retrial, under Rule 414, the government having given timely notice the second time around.

*Holding*: Reversed and remanded; The DC erred in its assessment that the probative value of TT;s testimony was substantially outweighed by the danger of unfair prejudice. *Reasoning*: The danger is one that all propensity evidence in such trials presents. It is for this reason that the evidence was previously excluded, and it is precisely such holdings that Congress intended to overrule *Rule*: 414. Similar Crimes in Child Molestation Cases *Notes*: - Rule is different than introducing evidence of a past crime, perhaps robbery, because sexual molestation is a specific desire that if committed in the past, it is much more likely that this type of crime would be committed again. - The prejudice is obvious with this type of evidence and unless it is somehow different than the prejudice contemplated by the legislature, then it does no matter, congress believes that this type of evidence is particularly probative. - 404(b) is subject to a balancing test that is not required for 414

In Re Yoder Co. (6th Cir. 1985) *Facts*: Yoder Company (Yoder) (plaintiff) filed a bankruptcy petition to seek relief from creditors and certain claims, including a products-liability suit brought by Mark Bratton. The bankruptcy court established a submission deadline for proofs of claim against Yoder. Bratton filed his proof of claim eight months after the deadline. Yoder filed a petition in bankruptcy court, seeking to expunge Bratton's claim. Bratton claimed that he had not received notice of the filing deadline. Yoder responded that a notice had been mailed to the address of Bratton's attorney. Bratton's attorney testified that he did not receive the notice. However, the bankruptcy court found that there was a presumption that a properly addressed mailing was received by Bratton's attorney. The bankruptcy court relied on this presumption, despite the testimony of Bratton's attorney, and granted Yoder's request to expunge Bratton's claim. *PH*: The district court affirmed. Bratton appealed. *Issue*: Whether the finding of receipt was clearly erroneous? Whether the presumption, once rebutted, retains any effect.

*Holding*: Reversed and remanded; non-receipt is sufficient grounds for excusable neglect, and it is clear from the lower court opinions that he those courts found no-receipt the claim would have been allowed. *Reasoning*: Had it properly considered all the evidence it would have had to find that Bratton had not received notice.

United States v. Wright (7th Cir. 1990) *Facts*: Stanley Wright (defendant) sold crack cocaine to undercover police officers. The officers identified Wright as the man who had sold them the cocaine. Subsequently, the police obtained a wiretap warrant and tapped Wright's phone. In a call occurring approximately six months after the sale to the undercover officers, Wright told the person to whom he was talking that he was a drug dealer. Wright referenced other drug crimes on the call, but not the sale to the undercover officers. Wright was charged with distributing cocaine to the undercover officers. *PH*: At trial, the prosecution sought to introduce, over Wright's objection, the recording of the phone call. The trial judge admitted the recording, not as evidence of Wright's character or propensity to commit drug-related crimes, but as evidence of Wright's identity and intent. Wright was convicted. Wright appealed. *Issue*: Whether the trial was contaminated by the evidence of other criminal activity by Wright

*Holding*: Reversed with instructions to grant a new trial. *Reasoning*: Intent was not an issue in this case. The only relevance of the tape was to depict Wright as a drug dealer and against this, the limiting instruction was not limiting at all. *Notes*: This evidence does not help except in the propensity capacity that is forbidden by Rule 404(b).

Kumho Tire Co., LTD. v. Carmichael U.S (1999) *Facts*: Patrick Carmichael (plaintiff) was driving a minivan when one of its tires blew out. The tire was manufactured by Kumho Tire Company (Kumho) (defendant). The blowout caused the death of one passenger and injury to the others. Carmichael brought a products liability action against Kumho, claiming the tire was defective. At trial, Carmichael sought to introduce the testimony of his engineering expert witness, Dennis Carlson, who stated that he had concluded that the blowout was caused by a manufacturing or design defect in the tire. Carlson testified that he could tell the difference between blowouts caused by defects and those caused by tire abuse. He stated that blowouts caused by tire abuse exhibited four symptoms and that at least two of those symptoms had to be present for a blowout based on tire abuse to occur. Finally, Carlson testified that he saw all four symptoms of abuse in his inspection of the tire in question, but that none of the symptoms were present to a significant degree. He concluded that tire abuse did not cause the blowout, and so it must have been caused by a defect. Kumho sought to exclude the testimony based on the preliminary reliability test from Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993). *PH*: The district court agreed and excluded the testimony based on a preliminary determination that Carlson's methodology in his determination of what caused the blowout was unreliable. The United States Court of Appeals for the Eleventh Circuit reversed. The United States Supreme Court granted certiorari. *Rule*: 702 *Issue*: Whether thus basic gatekeeping obligation applies only to scientific testimony or to all expert testimony. Whether a trial judge determining the "admissibility of an engineering expert's testimony" may consider several more specific factors that Daubert said might "bear on" a judge's gate keeping determination.

*Holding*: Reversed, no abuse of discretion. Daubert's general principles apply to the expert maters described in Rule 702. The Rule in repsct to all matters, "establishes a standard of evidentiary reliability." *Reasoning*: The rule applies its reliability standard to all scientific, technical, or other specialized matters within its scope. *Notes*: The gatekeeping hearing and the reliability analysis is applied to all experts.

United States v. Mezzanatto U.S (1995) *Facts*: Mezzanatto (defendant) was arrested on drug charges after selling methamphetamine to an undercover cop. Mezzanatto and his attorney met with the prosecutor to discuss cooperating with the authorities. The prosecutor told Mezzanatto that he had to agree that any statements he made during the discussion could be used to impeach any inconsistent statements he might make at trial. Mezzanatto talked with his attorney and then agreed to this condition. During discussions, Mezzanatto admitted knowing that the package he sold to the undercover cop had drugs in it. He also admitted knowing about a meth lab at the home of a man named Shuster. Later, at trial, Mezzanatto denied knowing that the package contained drugs and denied knowing about Shuster's meth lab. On cross examination, over the objection of Mezzanatto's attorney, the prosecutor asked Mezzanatto about the prior inconsistent statements he made at their earlier meeting *PH*: Mezzanatto was found guilty. The appellate court reversed his conviction and held that Mezzanatto's agreement to allow statements made during plea bargaining to be used for impeachment at trial was unenforceable. Federal Rule of Criminal Procedure 11(e)(6) and Federal Rule of Evidence 410 (the plea-bargaining rules) exclude statements made during plea bargaining from being used as evidence at trial. The appellate court held that these rules' exclusionary provisions cannot be waived. The Supreme Court granted certiorari.

*Holding*: Reversed; *Reasoning*: The presumption of waivability has found specific application in the context of evidentiary rules. At the time of the adoption of Federal Rules of Evidence, agreements as to the admissibility of documentary evidence were routinely enforced and help to preclude subsequent objections as to authenticity. The mere potential for abuse of prosecutorial bargaining power is an insufficient basis for foreclosing negotiations

Bullcoming v. New Mexico U.S (2011) *Facts*: Donald Bullcoming (defendant) was arrested for driving while intoxicated (DWI) and charged by New Mexico (plaintiff). The prosecution's primary evidence was a forensic laboratory report that certified that Bullcoming's blood-alcohol concentration (BAC) was above the DWI legal limit. Curtis Caylor was the analyst that tested Bullcoming's blood and filled out the report. He was unavailable to testify at trial, so the prosecution called Razatos, another analyst who was familiar with the BAC testing procedures, but did not participate in Bullcoming's test. Bullcoming objected to the testimony of Razatos on hearsay and Confrontation Clause grounds. *PH*: The trial court and the New Mexico Supreme Court held that Razatos's surrogate testimony met the requirements of the Confrontation Clause and admitted the testimony. The United States Supreme Court granted certiorari. *Issue*: Whether surrogate testimony is admissible?

*Holding*: Reversed; An analyst's certification prepared in connection with criminal investigation or prosecution is testimonial and within the compass of the Confrontation Clause. *Surrogate testimony* of that order does not satisfy the Confrontation Clause. When the State elected to introduce Caylor's certification, Caylor became a witness Bullcoming had the right to confront. *Reasoning*: Surrogate testimony of the kind Razatos was equipped to give could not convey what Caylor know or observed about the events his certification concerned, i.e., the particular test and testing process he employed. Nor could surrogate testimony expose any lapse or lies on the certifying analyst's part.

Albert v. McKay & Co. Cal. (1917) *Facts*: π got caught in a machine at work and was killed. His wife sues for negligence. Witnesses say the machine was running when he went near the shaft, but tries to use rebuttal witness to show that one employee claimed that the machine was off.

*Holding*: Reversed; But such inference cannot, of course, be indulged in the face of the undisputed testimony that the machinery had not been started at all, and therefore could not have been started negligently. *Reasoning*: Absent a conflict, the jury had no right to find a verdict based upon the teory that the machinery had been negligently started after Albert had placed himself in close proximity to the shaft. This is not a res ipsa loquitur negligence case. - Prior inconsistent statements cannot be used for the truth of what the witness had asserted out of court, only for the purpose of impeachment.

Kirk v. Raymark Industriess, INC. (3rd Cir. 1995) *Facts*: Kirk (plaintiff) brought a personal injury suit against Owens-Corning (defendant) for asbestos-related injuries. Owens-Corning introduced expert testimony of Dr. Harry Demopoulos, who stated that the "overwhelming majority" of asbestos-related mesotheliomas are caused by crocidolite asbestos fiber. Kirk then introduced, over Owens-Corning's objection, the prior testimony of Dr. Louis Burgher from an unrelated Owens-Corning litigation. In that prior testimony, Burgher testified for Owens-Corning that chrysotile fibers contaminated with tremolite could cause mesothelioma. *PH*: The United States District Court for the Eastern District of Pennsylvania admitted the prior testimony and found in favor of Kirk. Owens-Corning appealed. *Issue*: Whether the testimony of Dr. Burgher falls within any of the hearsay exceptions enumerated in FRE?

*Holding*: Reversed; Dr. Burgher's prior trial testimony is hearsay in the context of the present trial. There is nothing in the record that indicates any "reasonable means" employed by Kirk to procure the services of Dr. Burgher so that he might testify at trial *Reasoning*: Because Dr. Bergher was never even contacted, Kirk failed to prove that she used "reasonable means" to enlist his services. - Why did Kirk not contact the Expert? Because he worked for the other party, and it was unlikely that he would come. He would not "kill the goose that lays the golden egg."

Marsh v. Valyou (Fla. 2007) *Facts*: Jill Marsh (plaintiff) was in a series of car accidents. Marsh filed a negligence suit against Robert Valyou, Avis Rent-A-Car, and others involved in the car accidents (defendants). Marsh alleged that the car accidents had caused her to suffer from fibromyalgia. Marsh sought to introduce expert testimony to that effect. Marsh's expert witnesses based their conclusions regarding the link between trauma and fibromyalgia on traditional scientific methods and principles. However, the trial court excluded Marsh's proffered expert testimony as unreliable based on Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), which required that an expert's scientific method be generally accepted in the relevant scientific community. Specifically, the trial court held that the opinion that trauma could cause fibromyalgia had not been generally accepted in the scientific community *PH*: The trial court granted summary judgment for the defendants. Marsh appealed.

*Holding*: Reversed; Frye does not apply to testimony of a causal link between trauma and fibromyalgia Marsh has sufficiently demonstrated the reliability of her experts; testimony, and the trial court erred in excluding it. *Reasoning*: Once the Frye test is satisfied through proof of general acceptance of the basis of an opinion, the experts opinions ae to be evaluated by the finder of fact and are properly assessed as a matter of weight, no reliability.

Shepard v. United States U.S (1933) *Facts*: Shepard (defendant) was charged with murdering his wife. In proving the charge, the prosecution sought to introduce into evidence a statement by Shepard's wife to her nurse stating that her husband had poisoned her. The district court and the United States Court of Appeals for the Tenth Circuit admitted the evidence based on the state of mind exception to the hearsay rule. Shepard appealed. *Issue*: Whether the evidence was properly admitted.

*Holding*: Reversed; It used the declarations as proof of an act committed by someone else, as evidence that she was dying of poisoning given by her husband. This fact, if fact it was, the government was free to prove, but not by hearsay declarations. *Reasoning*: Declarations of intention, casting light upon the future, have been sharply distinguished from declarations of memory point back to the past. The testimony now questioned faced backward and not forward.

In Re Asbestos Litigation (2d Cir. 1993) *Facts*: The Court permitted McPadden to read into evidence...deposition testimony concerning post-exposure warnings that were placed on the product more than 12 years after McPadden was last exposed to Crane's asbestos products

*Holding*: Reversed; It was error to permit McPadden to read into evidence...deposition testimony concerning post-exposure warnings that were placed on the product more than 12 years after McPadden was last exposed to Crane's asbestos products ... *Reasoning*: The record is clear that Crane at no point argued that it was unable to issue a warning. Instead, it vigorously denied that its product required a warning or was defective without a warning.

Ohio v. Clark U.S (2015) *Facts*: In March 2010, Darius Clark (defendant) dropped off L.P., his three-year-old son, at preschool. L.P.'s teachers noticed that one of L.P.'s eyes was bloodshot and uncovered more bruises on his body. The teachers asked L.P. who had done this to him. L.P. implicated that Clark was his abuser. Clark was indicted of several counts of child abuse by a grand jury. At trial, L.P.'s statements to his teachers were introduced into evidence. L.P. himself was barred from testifying under Ohio state law, which deemed him incompetent to testify. Clark moved to exclude the statements based on the Confrontation Clause.

*Holding*: Reversed; L. P's statements clearly were not made with the primary purpose of creating evidence for Clark's prosecution. Their introduction at trial did not violate the Confrontation Clause. *Reasoning*: It is clear that the first objective of the teachers was to protect L.P. The primary purpose test, although necessary, is not alone determinative, another factor is informality of the situation and the interrogation.

Under Seal v. United States (4th Cir. 2014) *Facts*: A 19 year old challeged a subpoena that required him to testify before a federal grand jury about the ownership of illegal firearms found in the should he shared with his parents because the investigation targeted his father. He claimed it would force him to testify in violation of child-parent privilege. *PH*: The DC agreed to quash the subpoena and the government appealed.

*Holding*: Reversed; No federal appellate court has recognized a parent client privilege and the Court will not here. *Reasoning*: Reason and experience do not warrant the privilege.

United States v. Jicarilla Apache Nation U.S (2011) *Facts*: In 2002, the Tribe commenced a breach of trust action against the US in the Court of Federal Claims seeking monetary damages for the Government's alleged mismanagement of funds held in trust for the Tribe. *PH*: CFC ordered the release of all the documents and the CoA for the federal circuit denied the governments petition for Mandamus.

*Holding*: Reversed; The Court considers ownership of the resulting records to be s significant factor in deciding who "ought to have access to the document." Here, that privilege belongs to the US. *Reasoning*: When the government seeks legal advice related to the administration of tribunal trust, it establishes an attorney client relationship related to its sovereign interest in the execution of federal law.

United States v. Crocker (5th Cir. 1986) *Facts*: ∆ was convicted by a jury on one count of a two-count indictment for conspiring to commit bank theft, 18 USC and was sentenced to three years imprisonment. ∆ claims evidence related to his 1977 arrest violated FRE 404(b).

*Holding*: Reversed; The DC did not abuse its discretion in admitting evidence after balancing its probative value against potential prejudice. *Reasoning*: The fact that ∆ has been arrested before with coconspirator Gaeta while in an automobile w/ counterfeit checks was highly probative of his knowledge that Gaeta's checks and his trips to the banks were for an illicit purpose. *Notes*: ∆'s argument would be that he was just in the car, he would say he lacked "knowledge." The Gov would argue that bc this exact situation happened with the same person, he had knowledge of what was going on.

Swidler & Berlin v. United States U.S (1998) *Facts*: In 1993, the Office of Independent Counsel began an investigation into whether there were any improprieties in the firing of several White House travel employees. Vincent Foster, deputy White House counsel, met with James Hamilton, an attorney with Swidler & Berlin (defendant), to seek legal advice with regard to the investigation. Hamilton took three pages of notes at their meeting. One of the first entries in the notes is the word "Privileged". Nine days after the meeting, Foster committed suicide. A federal grand jury then issued subpoenas to Swidler & Berlin for, inter alia, Hamilton's notes. Swidler & Berlin filed a motion to quash on the grounds that the notes were protected by the attorney-client privilege. *PH*: The district court denied enforcement of the subpoenas. The Court of Appeals for the District of Columbia Circuit reversed. It found that there is a posthumous exception to the privilege for attorney-client communications of which the relative importance to criminal litigation is substantial. Swidler & Berlin petitioned for certiorari to the Supreme Court. *Issue*: What is the scope of attorney client privilege, particularly, the extent to which the privileges survives the death of the client.

*Holding*: Reversed; The Notes are protected by attorney-client privilege. The IC simply did not make a sufficient showing to overturn the common law rule embodied in the prevailing caselaw. *Reasoning*: The general rule with respect to confidential communications... is that such communications are privileged during the testator's lifetime and, also, after the testator's death unless sought to be disclosed in litigation between the testator's heirs. The rationale for such disclosure is that it furthers the client's intent.

(Wis. App. 2009) *Facts*: Judy Giovannoni was jogging on the side of the road when Jeremy Denton (defendant) drove up beside her and attempted to force her into his car at gunpoint. Giovannoni was able to waive down a second car, which was driven by Dennis Hohisel. Giovannoni got into Hohisel's car and called 911. Denton was charged with attempted kidnapping, attempted false imprisonment, and attempted robbery. At trial, the prosecution called Officer Anthony Ambach as a witness. Ambach had no personal knowledge of the incident or the crime scene. Ambach presented, over Denton's objection, a computer-generated animation of the incident. The animation was based on police reports from the incident and input from Giovannoni, Hohisel, and another passenger who had been in Hohisel's car. Thus, the animation was not illustrative of any one witness's testimony. *PH*: The trial court permitted the animation to be introduced as demonstrative evidence to assist the jury in understanding the incident. Denton was convicted, and he appealed.

*Holding*: Reversed; The court can't conclude that there is no reasonable possibility that the animation contributed to the conviction and therefore that the error was harmless. *Reasoning*: The animation superseded the sifting and winnowing that a jury normally does when fact witnesses describe the same event in varying and sometimes contradictory ways.

Burchett v. Commonwealth (Ky. 2003) *Facts*: George Burchett (defendant) was charged with reckless homicide as a result of his role in a car accident. At trial, the Green Circuit Court admitted, over Burchett's objection, evidence that Burchett smoked marijuana in the morning and at night on a daily basis. *PH*: Burchett was convicted. Burchett appealed, arguing that the evidence of his marijuana use should not have been admitted. Unlike most states, Kentucky did not have a state evidentiary rule that mirrored Federal Rule of Evidence 406. *Issue*: Whether evidence that a ∆ smoked marijuana on a daily basis is admissible to prove that he smoked marijuana on the day of the collision.

*Holding*: Reversed; The evidence is inadmissible and should have been excluded. This error was not harmless. *Reasoning*: Simply characterizing the ∆'s actions as a "habit" attaches excessive significance in the minds of jurors. The label becomes a scarlet letter. *Concurring*: before the Kentucky trial courts may permit the introduction of habit evidence, this Court must amend the Kentucky Rules of Evidence. *Dissent*: Kentucky is the only jurisdiction that preclude, under all circumstances; admission of evidence of individual habit or of the routine practice of an organization as circumstantial evidence of conforming conduct on a special occasion.

United States v. Abel U.S (1984) *Facts*: Abel (defendant) was charged with a bank robbery. One of his cohorts in the robbery, Ehle, pled guilty to the robbery and agreed to testify against Abel. At trial, Abel sought to rebut Ehle's testimony by introducing the testimony of Mills who stated that after the robbery, Ehle admitted to Mills that Ehle intended to testify falsely against Abel to get a reduced sentence. In response to this, the prosecution sought to call Ehle back to the stand to testify that he, Able, and Mills were all part of a secret prison gang that required its members to deny its existence and commit perjury for each other. Abel objected to Ehle's testimony about the gang. *PH*: The district court admitted the testimony and convicted Abel. The United States Court of Appeals for the Ninth Circuit reversed. The United States Supreme Court granted certiorari.

*Holding*: Reversed; The evidence showing Mills' and respondent's membership in the prison gang was sufficiently probative of Mills possible bias towards respondent to warrant its admission into evidence. *Reasoning*: The tenants of this group showed that Mills had a powerful motive to slant his testimony towards respondent, or even commit perjury outright. *Notes*: - Is the statement hearsay? Yes, but it could come in under a state of mind exception (803(3)). - The impeachment was to show bias, which is used to describe a relationship between a party and a witness which might lead the witness to slant, unconsciously or otherwise, his testimony in favor or against a party. - There are no special rules governing bias, but 402 could show relevance (whether it is more or less likely to be true). - Bias is the most utilized form of impeachment. Bias evidence is going to be thought to be provative and the evidence would have to be very prejudicial to outweigh the probative value. Bias tends to distort people's perception or recollection.

United States v. Salerno U.S (1992) *Facts*: Salerno et al. (defendants) were charged with RICO violations and other federal crimes. At a grand jury hearing, two owners of a concrete firm allegedly a part of the racketeering ring testified that neither they nor their firm had participated in the ring. At trial, however, the owners of the firm invoked their Fifth Amendment privilege against self-incrimination. As a result, Salerno et al. sought to introduce the owners' testimony from the grand jury proceeding under Rule 804(b)(1) of the Federal Rules of Evidence. *PH*: The United States Court of Appeals for the Second Circuit reversed, stating that the "similar motive" requirement of the rule does not apply when the government obtains immunized testimony in a grand jury proceeding from a witness who refuses to testify at trial. The United States Supreme Court granted certiorari. *Issue*: Whether the Rule (804(b)(1)) permits a criminal defendant to introduce the grand jury testimony of a witness who asserts the Fifth Amendment privilege at trial. Whether the US had a "similar motive" in this case?

*Holding*: Reversed; The respondents have no right to introduce DeMatteis and Bruno's former testimony under Rule804(b)(1) without showing a "similar motive." *Reasoning*: There is no way to interpret the Rule to mean ∆s sometimes do not have to show similar motive. The witnesses are unavailable due to invoking their privilege at trial.

Shepard v. United States U.S (1933) *Facts*: Shepard (defendant) was charged with murdering his wife. In proving the charge, the prosecution sought to introduce into evidence a statement by Shepard's wife to her nurse stating that her husband had poisoned her. The district court and the United States Court of Appeals for the Tenth Circuit admitted the evidence based on the state of mind exception to the hearsay rule. Shepard appealed. *Issue*: Whether the decedent's statement was a dying declaration? *Rule*: 804(b)(2) - (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.

*Holding*: Reversed; The test to make a dying declaration is: The declarant must have spoken without hope of recovery and in the shadow of impending death. The record furnishes no proof that The ruling that there was a failure to make out the imminence of death and the abandonment of hope relives us of the duty of determining whether it is a legitimate inference that there was the opportunity for knowledge. *Reasoning*: The declaration is kept out if the setting of the occasion satisfies the judge, or in reason ought to satisfy him, that the speaker is giving expression to suspicion or conjecture, and not to known facts. Fear or belief that illness will end in death will not avail itself to make a dying declaration. There must be a settled hopeless expectation that death is near at hand, and what is said must have been spoken in the hush of its impending presence. *Notes*: - The declarant does not have to actually die

Clay v. Johns-Manville Sales Corp. (6th Cir. 1984) *Facts*: John Ed Clay and Curtis Bailey (plaintiffs) brought products liability suits against Johns-Manville Sales Corp. (Johns-Manville) and Raybestos-Manhattan, Inc. (Raybestos) (defendants). At trial, the plaintiffs sought to introduce a deposition of Dr. Kenneth Wallace Smith in a prior asbestos case. Smith had worked for Johns-Manville for 22 years as the company's only full-time doctor. He died before he could testify in this case. Smith's prior deposition was relevant to the extent of the defendants' knowledge of the harms of products containing asbestos, which was at issue in this case. *PH*: The United States District Court for the Eastern District of Tennessee (District Court) excluded the deposition, determining that it was hearsay and did not qualify under the former testimony exception because the defendants in the prior case were not predecessors in interest to the defendants in this case. The District Court found for the defendants in both the current and the prior case. The plaintiffs appealed. *Issue*: Whether the ∆s in prior cases were *predecessors in interest* to the ∆ in this case?

*Holding*: Reversed; The ∆s in the DeRocco case had a similar motive in confronting Dr. Smith's testimony, both in terms of appropriate objections and searching cross-examination, to that which Rayestpos has in the current litigation. *Reasoning*: The previous party having like motive to develop the testimony about the same material facts is, in the final analysis, a predecessor in interest to the present party. *Notes*: - Rule 804(b)(1)(B): Former Testimony That: (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.

Sandstrom v. Montana U.S (1979) *Facts*: David Sandstrom (defendant) was tried for the "deliberate homicide" of Annie Jessen. An element of the offense required that Sandstrom acted "purposely or knowingly." Sandstrom, who had confessed to killing Jessen, did not deny the killing but asserted that he was guilty of a lesser offense than deliberate homicide because he did not act "purposely or knowingly" since he suffered from a personality disorder that had been aggravated by alcohol consumption. At trial, the government asked the court to instruct the jury that "the law presumes that a person intends the ordinary consequences of his voluntary acts." The court agreed to give the instruction over defense counsel's objection. *PH*: Sandstrom was convicted of deliberate homicide and appealed his conviction to the Montana Supreme Court. The Montana Supreme Court held that the jury instruction shifted some of the burden to Sandstrom but affirmed the conviction on the ground that "allocation of some burden of proof to a defendant under certain circumstances" was appropriate. Sandstrom appealed to the United States Supreme Court. On appeal, the government asserted that the jury instruction did not violate Due Process because it was a permissive presumption, or alternatively, it merely shifted the burden of production to Sandstrom to present some evidence that he did not act "purposely or knowingly," but did not shift the burden of persuasion and therefore did not violate Due Process. *Issue*: Whether in a case in which intent is an element of the crime charged, the jury inst. "the law presumes that a person intends the ordinary consequences of his voluntary acts," violates the Fourteenth Amendment's requirement that the prosecution prove every element of a criminal offense beyond a reasonable doubt.

*Holding*: Reversed; Under either of the two possible interpretations of the instruction, the inst. represents constructional error. *Reasoning*: It is clear under Montana law whether the crime was committed purposely or knowingly is a fact necessary to constitute the crime of deliberate homicide.

County Court of Ulster County v. Allen (U.S 1979) *Facts*: Three adult men (defendants) and a 16-year-old girl were jointly tried for possessing two loaded handguns, a loaded machine gun and over a pound of heroin. Their car was stopped for speeding. The two heavy handguns were visible through the car window. At the time the car was stopped, the handguns were located in the girl's open handbag on either the front floor or the front seat of the vehicle. The girl was sitting in the passenger side of the front. She admitted that the bag was hers. The machine gun and heroin were found in the trunk, which the police had managed to pry open, since no occupant had a key. The car had been borrowed from the driver's brother that day. At trial, the jury convicted all four of possession of the handguns and acquitted them of possession of the trunk's contents. All four original defendants objected to the introduction into evidence of the three guns and heroin. They claimed that the state had not adequately demonstrated a connection between the evidence and them. New York has a statute that states that the presence of a firearm in a vehicle is presumptive evidence of its illegal possession by all persons in the vehicle at the time in question. The statute says that the presumption of possession does not apply if the weapon is found "upon the person" of one of the occupants. Counsel for the men argued that since the handguns were found in the girl's purse, the presumption of possession does not apply to them. *PH*: The court overruled the objection. The judge gave the jury the instruction that it was entitled to infer possession from the defendants' presence in the car. The judge did not instruct the jury on the "upon the person" exception. The United States Court of Appeals for the Second Circuit held that the defendants can challenge the constitutionality of the statute and that the statute is "unconstitutional on its face." The United States Supreme Court granted certiorari.

*Holding*: Reversed; Under these circumstances it was not unreasonable for her counsel to argue and for the jury to infer that was the car was halted for speeding that the other passengers and in car anticipated the risk of a search and attempted to conceal their weapons in a pocketbook in the front seat. *Reasoning*: It is improbable that the loaded guns belong to Jane Doe or that she was solely responsible for their being in her purse. As 16yr old girl in the company of three adult men she was least likely of the four to be carrying one. *Notes*: Even permissible inferences instructed to the jury can be permissible, however, mandatory are not.

Crawford v. Washington U.S (2004) *Facts*: Crawford (defendant) was charged with assault and attempted murder after stabbing a man who allegedly tried to rape his wife, Sylvia. At trial, the prosecution sought to introduce into evidence a recorded statement by Sylvia describing the stabbing to police. The trial court allowed the tape to be played for the jury and convicted Crawford. Sylvia was unavailable to testify at trial because of the state marital privilege.

*Holding*: Reversed; Whether testimonial statements are at issue the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation. *Reasoning*: The Clause's ultimate goal commands not that the evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross examination. The Constitution has one procedure for determining reliability of testimony in criminal trials, and the Court nor the states have the authority to replace it.

United States v. Lawless (7th Cir. 1983) *Facts*: An attorney retained to prepare the federal estate tax returns of Dieken, the deceased, and she was summoned to give over documents related to or used in the preparation of the return. Lawless refused to comply. After viewing the documents in camera, the DC decided two of the documents were privileged. The government appealed.

*Holding*: Reversed; the documents are returned to the DC. *Reasoning*: The information is send to an attorney with the intent that the information will be transmitted to a third part (in this case on a tax return), such information is not confidential.

United States v. Humphrey (6th Cir. 2002) *Facts*: ∆ appeals her conviction and sentence for embezzling bank funds and five counts of making false entries. The ∆ claims that the DC abused its discretion in admitting 107-coin bags as demonstrative evidence.

*Holding*: Reviewing evidentiary decisions, the Court is not persuaded that the DC abused its discretion. *Reasoning*: Admitting the coin bags into evidence, the DC did not expressly weigh their probative value against the danger of unfair prejudice, but it did recognize that the government wanted the jury to see what the bags would look like in the Bank's vault.

United States v. Houlihan (D. Mass. 1994) *Facts*: Billy Herd, John Houlihan, and others (defendants) were charged with the murder of James Boyden. At trial, the prosecution sought to introduce Boyden's statement to his sister as he was leaving her apartment on the night he was killed. Specifically, Boyden had told his sister that he was going to meet Herd. The defendants objected to the admission of the statement, seeking to exclude the statement as hearsay. *Issue*: Whether in enacting Rule 803(3) Congress codified in full the reasoning of Hillmon, or whether it sought to limit the case's application.

*Holding*: Rule 803(3) clearly says that statements of intent are admissible. It does not by its erms limit the class of persons against whom such statements f intent may be admitted, this Court rules that Rule 803(3) codifies Hillmon as written and does not disturb its conclusions or its reasoning.

Smithkline Beechum Corp. v. Apotex Corp. (N.D Ill. 2000) *Facts*: Apotex moves to compel production of certain documents listed in the privilege log of s. sued ∆ for infringing s patent to an antidepressant drug. *Issue*: does the document in question reveal, directly or indirectly, the substances of confidential attorney-client communication.

*Holding*: Such documents described as prepared in order to allow attorneys to assess patentability and sift information to prepare applications, to be immune from discovery under the attorney-client privilege. *Reasoning*: It is enough that the overall tenor of the document indicates that it is a request for legal advice or services.

United States v. Harris (2d Cir. 1984) *Facts*: ∆ was convicted of conspiracy to distribute heroin. The ∆ was set up by the government and an informant who agreement to pose as a heroine purchaser and led the DEA to the ∆ who in turn led them to Mamone. The evidence was largely based on recordings of the ∆, BUT the ∆ argues that he was aware that Steward was an informant and played along out of fear of what would happen if he refused. *Rule*: 803(3) - (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. *Issue*: Whether the evidence was properly admitted.

*Holding*: Taking these offers of proof at face value, an unfortunately we must on this record, we believed the district judge erred in excluding the proffered testimony as hearsay. A statement of the declarant's state of mind should have been admitted as a hearsay exception. *Reasoning*: The statements were admissible not for their truth, but instead as circumstantial evidence of Harris' state of mind - his knowledge of Stewards' cooperation.

State v. Acquisto (R.I 1983) *Facts*: Edward Acquisto (defendant) was charged with a sexual assault that was committed on the morning of September 27, 1979. Acquisto asserted that, at the time of the assault, he was at home with his mother, Julia Griffin. At trial, Griffin and Ann Callahan testified that they had seen Acquisto at home at the time the assault occurred. Griffin and Callahan, who worked as senior companions at the Institute of Mental Health (IMH), testified that they had been unable to go work on September 27 because the IMH employees were on strike on that date. The prosecution called Marie Judge (Marie) as a witness. Marie was the custodian of records for the Department of Elderly Affairs (Department). As the custodian of records, Marie maintained payroll records for IMH senior companions. Marie presented, as evidence, payroll records signed by Griffin and Callahan that indicated they had worked on September 27. The records also indicated that the strike had occurred from September 17 through September 19. The trial court permitted the introduction of the payroll records over Acquisto's hearsay objection. Acquisto was convicted. Acquisto appealed, arguing that the prosecution had not satisfied the common-law requirement for the introduction of business records, which required the testimony of every individual who participated in creating the record.

*Holding*: The Court adopts the standards set forth in FR 803(6) for the introduction of business records as evidence in criminal cases. The justice was not in error in admitting the payroll vouchers into evidence. The judgment of conviction affirmed. *Reasoning*: The complex nature of modern business organizations is such that all participants in the preparation of a record can most often not be identified or, if they can be pinpointed, could not reasonably be expected to have any helpful recollection concerning the specific transactions at issue. *Notes*: - You do not need to call in a stream of witnesses to establish the exchange of information. You can have one person who maintains the record(s) to testify.

Palmer v. Hoffman U.S (1943) *Facts*: Plaintiff brought a negligence suit against a railroad company (defendant) for the death of his wife and his own personal injuries resulting from an accident. The railroad company sought to introduce into evidence a statement made by the engineer of the train (who had since died) as part of a post-accident interview conducted at the railroad company's office. The railroad company regularly conducted interviews of its employees after they got into accidents. The trial court excluded the statement and the court of appeals affirmed. The railroad company appealed. *Issue*: Is the evidence admissible? Is there reason to be skeptical of the statement?

*Holding*: The Court agrees with the majority view below that it was properly excluded. Their primary utility is in litigating, not in railroading. Affirmed. *Reasoning*: It is manifest that in this case those reports are not for the systemic conduct of the enterprise as a railroad business. Unlike payrolls, accounts, bills of landing, and the like these reports are calculated for use essentially in the court, not in the business. *Rule*: 806(3) *Notes*: - The railroad could have argued that they acquired the information in order to improve their operations opposed to just for potential litigation. - The trustworthiness of the statements could be questioned due to the self-serving interest of making your own accident report.

Berryhill v. Berryhill (Ala. 1982) *Facts*: During a custody proceeding the pet asked the respondent if he had ever killed anyone.

*Holding*: The Court disagrees with the conclusion by the Court of Civil Appeals that the relevancy of the question is not shown. *Reasoning*: The question directed to the respondent asking whether he had killed anyone would be relevant as an attempt to show a specific act of bad character bearing on the fitness of the respondent. Reversed. Notes: The question is: Is dad a fit parent? Character is "in issue" in this case, and therefore, his character is admissible.

United States v. Kendrick (4th Cir. 1964) *Facts*: Kendrick (defendant) was convicted and filed a motion to vacate his sentence based on the grounds that he was incompetent to stand trial. At the hearing on this motion, Kendrick's trial attorney testified that throughout the trial, Kendrick was responsive, logical, and appeared to comprehend the nature of the trial *PH*: The trial court denied Kendrick's motion. He appealed on the grounds that the trial attorney's testimony should have been excluded under the attorney-client privilege.

*Holding*: The Court does not agree that the testimony of the petitioner's trial counsel should have been excluded at the post-conviction hearing on the basis of the attorney-client privilege. *Reasoning*: Privilege only protects confidences, not things which, at the time, are not intended to be held in the breast of the lawyer, even though the attorney-client relation provided the occasion for the lawyer's observation of them.

Keogh v. Commissioner of Internal Revenue (9th Cir. 1983) *Facts*: Keogh (defendant), a dealer at a casino, was charged with underreporting his tips to the IRS from 1969 to 1971. At trial, the tax court found that dealers at Keogh's casino pooled and evenly split their tips. To prove how much Keogh earned in tips, the Commissioner of Internal Revenue introduced a diary kept by John Whitlock, Jr., another worker at the casino. The diary contained a detailed summary of Whitlock's tips for the years in question, including dates and total amount of tips received on those dates. Keogh objected to the introduction of the diary on the grounds of hearsay because Whitlock was not available to testify at the trial. The tax court admitted the diary under the record of regularly conducted business activity exception to the hearsay rule. Barbara Mikle, Whitlock's ex-wife, testified to the regularity, detail, and accuracy of Whitlock's diary. The tax court found Keogh guilty. He appealed. *Rule*: 803(6)

*Holding*: The Court found the diary admissible under Rule 803(6). The Tax Court abused its discretion in admitting it without Whitlock's personal testimony. Affirmed. *Reasoning*: Whitlock's diary, even though personal to him, shows every indication of being kept "in the court of his own business activity, occupation, and calling. The reliability usually found in records kept by business concerns may be established in personal business records if they are systemically checked and regularly and continually maintained. The diary contained his own personal financial records; there is no reason put forward for him to have lied to himself. *Notes*: - Presumption is trustworthiness byt case by case evaluation if circumstances indicate a lack of trustworthiness. Different from other Rule 803 exceptions in this way.

Stone v. Peacock (11th Cir. 1992) *Facts*: Pl sued three officers claiming they terminated his employment in retaliation of his speaking out about the improper use of public property and funds. *Rule*: 611. Mode and Order of Examining Witnesses and Presenting Evidence *PH*: Lost in the jury verdict in suit against officers of the Georgia Department of Corrections.

*Holding*: The Court's witness order requirement alone, however, is not reversible error absent some showing of harm. *Reasoning*: Vacated and remanded in part on other grounds.

United States v. Drury (11th Cir. 2005) *Facts*: ∆ appeals his conviction for violating the federal murder-for-hire statute and possession of a firearm in connection with a crime.

*Holding*: The DC did not abuse its discretion. *Reasoning*: An attack that only consisted of government counsel pointing out inconsistences in testimony and arguing that the accused's testimony is not credible does not constitute an attack on the accused's reputation for truthfulness within the meaning of Rule 608

United States v. Pablo (10th Cir. 2010) *Facts*: Jonathan Pablo (defendant) and Isaac Gordo (defendant) were charged with the rape of L.R.H., a teenage girl. L.R.H. claimed that Gordo raped her first, before Pablo raped her. The prosecution presented evidence of L.R.H.'s vaginal injuries, which an expert witness testified were consistent with rape. The defendants sought to introduce evidence that L.R.H. was seen partially undressed earlier in the evening with two other men. The defendants also sought to introduce evidence that earlier on the night in question, at a different location from where the rape occurred, L.R.H. had made sexual advances toward Gordo. The district court excluded each of these proffers of evidence under Federal Rule of Evidence (FRE) 412. The defendants were convicted. *Rule*: 412(b)(1)(A) *PH*: Pablo appealed, arguing that (1) the evidence that L.R.H. was seen with other men should have been admitted to prove that one of the other men was the source of L.R.H.'s vaginal injuries, and (2) the exclusion of the evidence of L.R.H.'s sexual advances toward Gordo violated Pablo's constitutional right to present a defense. Pablo argued that in order to prove that L.R.H. consented to sex with Pablo, he must have the opportunity to first prove that L.R.H. consented to sex with Gordo, because no reasonable jury would conclude that a woman would have consensual sex immediately after being raped by another man. *Issue*: Whether DC's determination regarding the admissibility of evidence under Rule 412 for an abuse of discretion.

*Holding*: The DC did not commit reversible error. No plain error. *Reasoning*: Pablo's proffered evidence beas no adequate connection to LRH's vaginal injuries. Thus, we discern little likelihood that a jury that discredited the ∆'s testimony on consent would change its evaluation of the ∆'s credibility because of Issac's self-serving testimony of earlier alleged sexual advances in a different location, particularly given the presence of other inconsistencies and gaps in the ∆'s testimony. *Notes*: The ∆ knows that if the victim did not consent to sex with Gordo, then it is HIGHLY unlikely that she had consensual sex with him. Therefore, the evidence that she made advances towards Gordo is probative to show the consensual nature of the first sexual interaction.

United States v. Copelin (D.C Cir. 1993) *Facts*: Copelin (defendant) was charged with distribution of cocaine. Copelin claimed that another man he was with was actually the one who had been selling the cocaine. During cross examination of Copelin, he was asked if he had actually seen the other man selling the cocaine. When Copelin said that he had not seen any drugs change hands, the prosecution asked him if he had ever seen any drugs in his life. He replied that he had only seen drugs on television. To impeach Copelin's testimony on this issue, the prosecution sought to introduce into evidence the fact that Copelin had tested positive for cocaine multiple times so must have seen it outside of television. The trial court allowed admission of the evidence, but did not give the jury a limiting instruction on its use *PH*: Copelin was convicted and appealed

*Holding*: The DC's failure to squelch the government's disputed line of questioning on its own initiative was certainly not plain error if it was error at all. *Reasoning*: A rule disallowing the use of extrinsic evidence to impeach a witness as to collateral matter is irrelevant to this case, because Copelin was impeached by his own statements on cross-examination, not by the testimony of another witness or by physical evidence. *Notes*: - The court COULD under 404(b) introduce the wrong in order to prove knowledge. The attorney could make a reasonable argument that the prior bad act could be relevant to proving something. - The court is *not* bringing in extrinsic evidence, they're cross examining the defendant himself.

Melendez-Diaz v. Massachusetts U.S (2009) *Facts*: The Commonwealth of Massachusetts (the Government) (plaintiff) tried Melendez-Diaz (defendant) for distributing and trafficking in cocaine. At trial, the Government introduced "certificates of analysis," prepared by analysts in the State Crime Laboratory, in order to show that the substance seized from Melendez-Diaz was cocaine. The analysts did not testify at trial. On appeal, Melendez-Diaz asserted that the certificates of analysis were testimonial and their admission by the trial court violated his constitutional rights under the Confrontation Clause. The Massachusetts Court of Appeals affirmed, and Melendez-Diaz appealed to the United States Supreme Court. On appeal in the Supreme Court, the Government presented six grounds for finding that admission of the certificates did not implicate or violate the Confrontation Clause. First, the witnesses were not accusatory because the information in the certificates did not directly accuse Melendez-Diaz of wrongdoing. Second, the analysts' statements in the certificates were not the type of ex parte statements presented in the trial of Sir Walter Raleigh. Third, Melendez-Diaz would not derive a benefit from having the opportunity to cross-examine on the "neutral, scientific testing" contained in the certificates. Fourth, the certificates are admissible as business or public records under the common law. Fifth, Melendez-Diaz could have subpoenaed the analysts. Sixth, stringent application of the Confrontation Clause in this case will make the prosecution of criminals overly burdensome because analysts will have to testify any time scientific data is presented. *Issue*: Whether those affidavits are "testimonial," rendering the affiants "witnesses" subject to the ∆'s right of confrontation under the Sixth Amendment.

*Holding*: The Sixth Amendment does not permit the prosecution to prove its case via ex parte out-of-court affidavits and the admission of such evidence against Melendez-Diaz was error. Reversed and remanded. *Reasoning*: The certificates are functionally identical to live, in court testimony, doing precisely what a witness does on direct examination. Contrary to respondent's assertion, there Is not a third category of witnesses, helpful to the prosecution, but somehow immune from confrontation. *Notes*: - The state trys to argue that the certificates were a "Business Record" exception to the rule against hearsay. 803(6). - The statements are testimonial statements bc they are sworn affidavits that are used against the ∆.

United States v. Allen J. (10th Cir. 1997) *Facts*: Allen J. (defendant) was charged in the United States District Court for the District of New Mexico with the sexual assault of a minor victim. At trial, the prosecution called the victim, who was 13 years old, to testify. Allen J. objected to the victim's testimony, claiming that the victim suffered from mild mental retardation and thus was not competent to testify. Before asking substantive questions, the prosecution asked the victim a number of introductory questions about the truth generally, as well as about the oath she took, including: (1) whether she understood that she had promised to tell the truth, (2) whether she knew the difference between the truth and a lie, and (3) whether she knew that she would be punished if she told a lie in court. The victim answered each of these questions affirmatively. The district judge then permitted the victim to testify without a competency hearing. However, during her testimony, the victim had difficulty answering some questions. The victim also gave incorrect answers to other questions, including her own age. *PH*: Allen J. was convicted by the DC and he appealed. *Issue*: Whether the trial court erred in finding the victim competent to testify.

*Holding*: The Wheeler test no longer completely states the applicable standard for determining the competency of a child witness, although it may inform any examination taking place pursuant and may help explain the type of evidence necessary to demonstrate a compelling reason for such an examination. *Reasoning*: After a series of questions the victim knew the difference between a truth and a lie, knew she was to tell the truth in court, and knew she would be punished if she told a lie.

United States v. McPartlin (7th Cir. 1979) *Facts*: Frederick Ingram (defendant) and Robert McPartlin (defendant) were charged with wire fraud and conspiracy to commit wire fraud. Ingram and McPartlin hired different attorneys, but both codefendants sought to discredit entries in a diary kept by William Benton. An investigator hired by Ingram's attorney interviewed McPartlin with the consent of both codefendants' attorneys. While speaking to the investigator regarding Benton's diary, McPartlin made statements that were exculpatory toward Ingram. At trial, Ingram sought to introduce McPartlin's statements to the investigator as evidence. McPartlin objected, asserting the attorney-client privilege. *PH*: The trial court sustained the objection. The codefendants were convicted, and they appealed. Ingram argued that the attorney-client privilege did not apply to McPartlin's statements to Ingram's investigator, because their defenses were not entirely compatible.

*Holding*: The attorney who thus undertakes to serve his client's co∆ for a limited purpose becomes the co∆'s attorney for that purpose. *Reasoning*: McPartlin was entitled to the protection of the attorney-client privilege because his statements were made in confidence to an attorney for a co∆ for a common purpose related to both defenses.

Upjohn Co. v. United States U.S (1981) *Facts*: In response to an independent audit reflecting illegal payments to foreign government officials by employees of Upjohn (defendant), Upjohn's general counsel, Gerard Thomas, sent a questionnaire to Upjohn employees requesting any information they had concerning the payments. The IRS issued a summons requesting Upjohn's production of the questionnaires, but Upjohn refused to produce the questionnaires on the basis of attorney-client privilege. *PH*: The district court enforced the summons and the United States Court of Appeals for the Sixth Circuit affirmed, holding that the attorney-client privilege did not apply in the corporate context to those employees that were not directly responsible for directing Upjohn's actions in response to legal advice. The United States Supreme Court granted certiorari.

*Holding*: The court concluded that the narrow "control group test" sanctioned by the Court of Appeals, in this case cannot, consistent with the principles of the common law as... interpreted... in the light of reason and experience. *Reasoning*: Here, the government was free to question the employees who communicated with Thomas and outside counsel. The best procedure with respect to this aspect of the case would be to reverse the judgment of the CoA for the Sixth Circuit and remand the case to it for such further proceedings in connection with the work-product claim as are consistent with this opinion... it is so ordered. The Trial judge applied the wrong standard when he concluded that the Government had made a sufficient showing of necessity to overcome the protections of the work product doctrine. *Notes*: The facts are not protected; your conversations are protected. The communications concerned matter within the scope of the employees' corporate duties, and the employees themselves were sufficiently aware that they were being questioned in order that the corporation could obtained legal advice.

United States v. Noriega (11th Cir. 1997) *Facts*: The ∆ was found guilty of drug related charges after he was accused of helping Columbian drug traffickers smuggle drugs into the U.S. The ∆ objected to the Court's decision that disclosing his alleged task performed for the United States were irrelevant to his defense.

*Holding*: The court did not abuse its discretion when it determined the probative value of the proffered material was outweighed by the confusion of issues its admission would have caused. - The evidence potentially had value, but it was marginal. *Opposing Argument* If ∆ could prove by disclosing specific task that the government paid him 10,000,000,it would be evidence of where his accumulative wealth came from, NOT from selling drugs.

State v. Dullard (Iowa 2003) *Facts*: The police searched the home of Brett Dullard (defendant) and discovered three boxes of Benadryl, which was a medicine that contained pseudoephedrine, an ingredient used in methamphetamine. The police also found other paraphernalia commonly used to manufacture methamphetamine, as well as a written note stating that the person who had written the note had seen a black and white car with someone inside watching Dullard's home. Dullard was charged with possession of pseudoephedrine with the intent to manufacture methamphetamine. The note was used at trial against Dullard to demonstrate that the person who wrote the note, whose identity was unknown, felt that Dullard needed to be warned that they might have been being watched by the police.

*Holding*: The court does not believe that indirect or unintentional assertions in speech are reliable enough to avoid the hearsay rule. The best ap Statements: 1) an oral or written assertion or 2) nonverbal conduct of a person, if it is intended by the person as an assertion.

United States v. Beechum (5th Cir. 1978) (en banc) *Facts*: Orange Beechum (defendant) was a United States mail carrier. Beechum was arrested and charged with the unlawful possession of a valuable silver dollar that had been stolen from the mail. At the time of Beechum's arrest, two credit cards were found in his wallet that did not belong to him. Beechum testified that he had been planning to turn in the silver dollar to his supervisor. There was conflicting evidence presented at trial as to whether Beechum had had an opportunity to turn in the silver dollar. *PH*: Over Beechum's objection, the prosecution introduced the evidence of the credit cards, including the fact that the cards had been mailed 10 months earlier to addresses on Beechum's mail route. The trial judge instructed the jury to use the credit-card evidence only as an indication of Beechum's unlawful intent with respect to the silver dollar. Beechum was convicted. Beechum appealed. *Rule*: 404(b)

*Holding*: The credit cards were properly admissible. The credit card evidence meets the requirements of rule 403. The conditions imposed by the second step of the analysis under rule 404(b) have been met, and the extrinsic offense evidence in this case was properly admitted. *Reasoning*: The credit card evidence bore directly on the plausibility of Beechum's story. The credit cards may have been determinative. He maintained contemporaneously the wrongful intent with respect to the cards and the intend as regards the coin. *Notes*: 404(b) *Test*: 1) The extrinsic evidence is relevant to an issue other than the ∆'s character 2) the evidence most possess probative value that is not substantially outweighed by its undue prejudice.

State v. Fisher (Ohio 2003) *Facts*: Michael Fisher (defendant) was charged with assault. At trial, the trial judge permitted the jurors to ask questions to witnesses. The jurors were instructed to submit their questions in writing at specific, approved times. The jurors submitted 23 questions to the witnesses for approval. The trial judge provided counsel with an opportunity to object to each question during a sidebar conference. The judge then decided whether to ask each question. In total, the judge approved and asked 18 of the 23 questions, two of which the judge rephrased for clarity. After each question was asked, the judge permitted counsel to ask follow-up questions to the witness. *PH*: Fisher was convicted. Fisher appealed, arguing that the trial judge had committed an abuse of discretion by allowing the jurors to ask questions to witness.

*Holding*: The decision to allow jurors to question witnesses is a matter within the discretion of the trial court and should not be distributed on appeal absent an abuse of discretion. The judgment of the court of appeals is affirmed. *Reasoning*: Consequently, the ability of a factfinder to question witnesses is not inconsistent with the duty of impartiality.

United States v. Dennis (8th Cir. 1980) *Facts*: Dennis appeals his conviction on twelve counts of an 18-count indictment charging 17 violations Extortionate Credit Transaction Act and one under obstruction of Justice. *Rule*: 403 and 801(d)(1)(A)

*Holding*: The discretionary judgement by the TC fulfilled Rule 403's purpose minimizing the evidentiary cost while protecting parties from undue prejudice. *Reasoning*: The trial judge correctly determined that Miller's denials of and inability to recall grand jury testimony were "inconsistent" with his trial testimony. *Notes*: This statement can be used for the truth of the matter asserted. So, when used for the purposes of impeachment, it has more weight. When can a prior inconsistent statement be used not just to impeachment, but also for the truth of the matter asserted? 801(d)(1)(A).

Henderson v. Detella (7th Cir. 1996) *Facts*: A jury found Henderson guilty of murder and attempted murder, based on the testimony of Chavez, who witnessed the murder and then was the victim of the attempted murder The TC refused to allow the defense to elicit testimony from a friend of Chavez that he had repeatedly seen her use drugs. Conviction was upheld and Henderson petition for habeaus relief was rejected by DC.

*Holding*: The district court's decision to deny Henderson's petition for a writ of habeaus corpus was therefore correct *Reasoning*: It is not clear that the testimony was probative of Chavez's ability to recognize and identify the individual who committed the offense.

United States v. Parry (5th Cir. 1981) *Facts*: The ∆ was distrubuting drugs, but under the impression that he was working in good faith with narcotics agents. The court excluded evidence of a conversation ∆ had with his mother regarding the narcotic agents.

*Holding*: The evidence should have been admitted; Reversed and Remanded for new trial. *Reasoning*: When an 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 on the declarant's credibility and therefore is not subject to hearsay. Limiting instruction was helpful to avoid jury misuse of the information.

United States v. Flintcraft (5th Cir. 1986) *Facts*: Robert W. Flitcraft and his wife Rebecca appeal their convictions for failing to file tax returns and filing false withholding exemption certificates under 26 U.S.C. §§ 7203 and 7205, both misdemeanors. *Issue*: Whether the district court abused its discretion by excluding cases and other documents that Flintcraft claimed to have relied on in concluding that he was not required to file an income tax return

*Holding*: The introduction of the documents themselves would have had little further probative value. In addition, the documents presented a danger of confusing the jury by suggesting the law is unsettled and that it should resolve such a doubtful question of law. *Opposing Argument* - The ∆'s defense was to try to prove that the documents relied on are confusing as a matter of fact, not as an attempt to confuse the issues.

United States v. Rosa (3d Cir. 1989) *Facts*: Joseph Rosa and 27 other ∆s were charged with cocaine trafficking in a 113-count indictment. All but two of the ∆s, Kostrick and Romano, pleaded guilty Rosa testified for the government.

*Holding*: The judgements with respect to Kostrick and Romano will be affirmed. *Reasoning*: Similarly, the trial judge correctly allowed cross examination concerning a fraudulent insurance claim Rosa had filed, since frau is one of the offenses that bears on a witness's credibility. Bribery, however, is not the kind of conduct which bears on truthfulness or untruthfulness.

United States v. Duran Samaniego (11th Cir. 2003) *Facts*: Roberto Duran Samaniego (Duran) (defendant) was a world-champion boxer. Duran claimed that his championship belts were stolen by his brother-in-law, Bolivar Iglesias. The belts were recovered when Luis Gonzalez Baez (defendant) attempted to sell the belts to federal agents. Baez claimed that the belts were not stolen. The United States government (plaintiff) filed an interpleader action to determine the rightful owner of the belts. Duran sought to have Iglesias testify at trial, but Iglesias was a Panamanian national and lived in Panama. Despite the help of Iglesias's immediate family members, Duran could not locate Iglesias and thus could not get Iglesias to travel to the United States and testify. Instead, Duran sought to introduce the testimony of Iglesias's family members stating that Iglesias had apologized to them for stealing the belts. *PH*: The district court admitted this testimony over Baez's objection, under the state-of-mind exception to the hearsay rule. As a result, the district court did not reach the issue of whether Iglesias's apology was admissible as a statement against interest. The jury found that Duran was the rightful owner of the belts. Baez appealed. *Issue*: Whether Iglesias's apology falls within the exclusion from Rule 803(3) admissibility because it is a "statement of memory or belief to prove the fact remembered or believed."

*Holding*: The judgment entered by the jury's verdict stands, and under it Roberto Duran is entitled to regain his belts. It follows that Duran did established Iglesias was unavailable to testify under Rule 804(a)(5), so the out of court statement Iglesias made was admissible under Rule 804(b)(3) as a statement against interest. *Reasoning*: The purpose of the exclusion from Rule 803(3) admissibility is "narrowly limit those admissible statements to declarations of condition - 'im scared' - and not belief - I'm scared because [someone] threatened me. *The Court will not hold the DC abused its discretion where it reached the correct result even if it did so for the wrong reason.*

People v. Zackowitz (N.Y 1930) *Facts*: On November 10, 1929, Mr. Zackowitz (defendant) shot and killed Frank Coppola on a street near Zackowitz's apartment. The issue at trial was not whether Zackowitz was guilty of murder, but whether the murder was premeditated or an impulsive act. The prosecution (plaintiff) sought to demonstrate the murder was premeditated, and that Zackowitz was therefore guilty of first-degree murder. *Issue*: Whether the evidence of the other guns was properly admitted.

*Holding*: The judgment of conviction should be reversed and new trial ordered. Reasoning: The end was to bring persuasion that here a man was of vicious and dangerous propensities, who because of these propensities was more likely to kill with deliberate and premediated design. The evidence is relevant, but it is so prejudicial that it out weighs its probative value. There can be no such implication from the ownership of weapons which one leaves behind at home. *Notes*: The rationale is one of policy, not logic. "the natural and inevitable tendency of the tribunal - whether judge or jury - is to give excessive weight to the vicious record of crime thus exhibited, and either to allow it to bear too strongly on the present charge, or to take proof f it as justifying a condemnation irrespective of guilt of the present charge." - 404(a)(1) = criminal and civil - 404(a)(2) = only applies to criminal.

United States v. Obayagona (E.D.N.Y. 1985) *Facts*: ∆ was arrested in an overcover sting where she handed heroine to an agent and after the agent was "arrest" he made the statement that the lady in black and white handed him the drugs (while he had his tape recording). *Rule*: 803(2) - (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. 803(1) - (1) Present Sense Impression. A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.

*Holding*: The motion for a new trial or a judgment of acquittal is denied. The agent's statement is admissible under 803(1). *Reasoning*: Testimony, and Turner's recording, depict a quick and somewhat chaotic arrest that would continue the excitement of receiving and testing sample. Such a situation engenders excitement. Where a precisely contemporaneous declaration cannot be made, near contemporaneous fulfills the requirements of 803(1). His declaration was as spontaneous as possible.

Olden v. Kentucky U.S (1988) *Facts*: Olden (defendant) and Matthews met in a bar and eventually left and had sexual intercourse multiple times. Olden claimed that the intercourse was consensual, but Matthews claimed that she was kidnapped, raped, and forcibly sodomized. Olden sought to show that Matthews had a motive to lie because she was seeing Olden's half-brother, Russell, at the time of the incident and a revelation of the incident would ruin the relationship. To prove this, Olden tried to introduce evidence that Matthews is now living with Russell. *PH*: The trial court excluded the evidence on the grounds that Matthews, a white woman, having a relationship with Russell, a black man, would produce an unfair prejudice against Matthews in the eyes of the jury. Along those lines, the trial court also sustained an objection when the defense tried to cross examine Matthews about her living situation. Olden was acquitted of kidnapping and rape but convicted of forcible sodomy. The Kentucky Court of Appeals affirmed, and he appealed. *Issue*: Whether the error was harmless beyond a reasonable doubt?

*Holding*: The motion for leave to proceed in forma pauperis and the petition for cert is granted, the judgment of the CoA is reversed and remanded. *Reasoning*: Speculation as to the effect of juror's racial bias cannot justify exclusion of cross examination with such strong potential to demonstrate the falsity of Mathew's testimony. *Notes*: - The court believes that the evidence will cause the jury to attach too much significance to it. - However, the counter argument is that the evidence is probative because the jury (in this time period) will not believe that she could have consented to the sex because he was a black man. Therefore, the fact that she lives with a black man (Russell) can incline a juror to believe that she was not against sex with a black man purely because of his race.

Southernland v. Sycamore Community School District (6th Cir. 2004) *Facts*: The π alleges that the school knew of the sexual harassment she was subjected to and they had notice.

*Holding*: The rumors were not hearsay. The judgment is affirmed. *Reasoning*: The rumor testimony and notes were not offered to prove the truth of the matters asserted; they were sed to show that the school officials had knowledge of the problem, which was an essential element of the negligent retention claim.

United States v. White (5th Cir. 1992) *Facts*: John Sennett White and John Michael Wilson appeal their convictions on charges of possession with intent to distribute cocaine and conspiracy to commit the same offense. *Rule*: 608(b)

*Holding*: The trial court did not abuse its discretion by excluding the proffered testimony. *Reasoning*: The ∆s could elicit the evidence of Northcutt's credibility only on cross-examination of Northcutt, not through an extrinsic source.

United States v. Hernandez (3d. Cir. 1999) *Facts*: Julio Hernandez (defendant) was charged with various crimes related to the hijacking of a tractor-trailer. At trial, the trial judge permitted the jurors to ask questions to witnesses. The jurors were instructed to write down any question they had, and the trial judge would provide counsel with an opportunity to object to the question outside of the presence of the jury. The trial judge would then determine whether to ask the question to the witness. Only one juror wrote down a question of fact, but the trial judge decided not to ask the question to the witness. *PH*: Only one juror wrote down a question of fact, but the trial judge decided not to ask the question to the witness. Hernandez was convicted. Hernandez appealed, arguing that the trial judge had committed an abuse of discretion by allowing the jurors to ask questions to witnesses

*Holding*: The trial court did not abuse its discretion. *Reasoning*: The court does not believe that one fact question which is submitted to a judge in writing, but not even asked, can be labeled an abuse of discretion. The danger of allowing jurors to ask questions orally far outweighs any perceived benefit of allowing juror questioning of witnesses. The procedure used in this case was consistent with the sound exercise of judicial discretion.

Mahlandt v. Wild Canid Survival and Research Center, Inc. (8th Cir. 1978) *Facts*: This action came from an alleged attack by a wolf. A three year old boy was going to a neighbor's home to get his brother when he was allegedly attacked. Mr.Poos worked at the Wild Cnaid Survival and research center and was keeping Sophie (the wolf) to teach about wolves at schools. The that was denied admission was a statement by Clark poos that "a wolf got Danny and he is dying" and a note from Mr. Poos to the President of Wild Canid that Sophie bit a child, and the admission of minutes from a meeting of the directors.

*Holding*: The two statements made by Mr. Poos were admissible against Wild Canid. The evidence was not admissible against Mr. Poos. Rule 403 does not warrant the exclusion of the evidence of Mr. Poos' statements as against himself or Wild Canid. All justify supporting the judgment of the trial court under Rule 403. The DC is reversed, and the matter remanded for a new trial. *Reasoning*: The statement in the note pinned on the door in not hearsay and is admissible against Mr. Poos. It was his own statement and as such was clearly different from the reported statements of another. Mr. Poos had actual physical custody of Sophie. His conclusions, his opinions, were obviously accepted as a basis for action by his principle.

State v. Larson (Mont.1992) *Facts*: The ∆ allowed a five-year-old girl to ride behind him on a horse when the horse reared back and fatally crushed the girl. The ∆ is appealing the introduction of the ∆'s blood alcohol level during the incident as well as the State's comparison to the level determined to impair one's ability to drive a moto vehicle.

*Holding*: The ∆'s blood alcohol level was relevant and the comparison of his blood alcohol to the amount determined to impair someone's ability to drive was relevant. *Reasoning*: The evidence showed that alcohol had impaired his reactions and judgments and it helped the jury evaluate his level of intoxication. FRE 401 - Test for Relevancy

Pasteris v. Robillard (D. Mass, 1988) *Facts*: plaintiffs sue for injuries when Marie suffered when she fell down a flight of stairs at the Robillard's home. s sought discovery of Gary Robillard's transcribed statement to his insurance company. The ∆s objected on grounds of attorney-client privilege.

*Holding*: Therefore, the statement, to merit protection, must have been given to a subordinate of the attorney who was acting as a lawyer who the statement was made. *Reasoning*: Privilege applies only if the person to whom the communication was made is a member of the bar of a court, or his subordinate, and in connection with his communication is acting as a lawyer.

Lewis Baker (2d Cir. 1975) *Facts*: Lewis (plaintiff) was an employee of Penn Central Railroad (Penn Central) (defendant). He sustained injuries when working on a freight car and brought suit against Penn Central. Penn Central sought to introduce into evidence two reports. One was an injury report prepared by Campbell, a night trainmaster, under the supervision of Talbott, a day trainmaster. Penn Central was required to file monthly reports of all accidents involving its employees. The other report was an inspection report conducted by Campbell and Zuchero, a gang foreman. Halderman, an assistant general foreman for Penn Central testified that after every injury his office was required to inspect the equipment involved and report the results. The United States District Court for the Southern District of New York admitted both reports under the business records exception to the hearsay rule and found in favor of Penn Central. Lewis appealed.

*Holding*: These factors, are sufficient indica of trustworthiness to establish the admissibility of the reports into evidence under the Federal Business Records Act; Affirmed. *Reasoning*: In the absence of a motive to fabricate, a motive so clearly spelled out in Palmer v. Hoffman, the holding is that case is not controlling to emasculate the Business Records Act.

Gray v. Maryland U.S (1998) *Facts*: ∆ was named by a codefenent, Bell, in a confession to beating a mean to death. The trial judge denied Gray's motion for a separate trial and permitted the State to admit the confession as evidence at trial, but he ordered the confession redacted. When the police officer read the confession at trial he said the word "deleted" whenever Gray or the other ∆'s name was used. *Issue*: Whether Bruton's protective rule applies to the redacted confession?

*Holding*: Vacated and Remanded; *Reasoning*: Unlike Richardson's redacted confession, this case refers directly to the existence of the nonconfessing ∆.

United States v. Davis (D.C Cir. 2010) *Facts*: Terry Davis (defendant) was charged with theft and fraud for stealing money from his fraternity. Davis was the treasurer of the fraternity when the alleged theft occurred. At trial, the district court permitted the prosecution to introduce the testimony of the fraternity's new treasurer, Jimmy Hammock. Hammock testified that Davis, referring to the money missing from the fraternity, had asked him, "Can we just split this $29,000.00 and make this situation just go away?" Hammock testified that he had responded by saying that if Davis wanted to negotiate a settlement, Davis needed to talk to the fraternity's counsel or president. The prosecution admitted that it was not introducing Hammock's testimony to prove that Davis was attempting to obstruct the criminal investigation. Davis was convicted. Davis appealed. *PH*: Convicted of theft and fraud, sentenced to 51 months in prison, and ordered to pay $217,746.79 in restitution to the fraternity.

*Holding*: Vacated and Remanded; The DC abused its discretion in permitting Hammock to testify regarding Davis's offer of settlement and the statements that followed. *Reasoning*: Offers to settle are excluded even if no settlement negotiations follow. It makes no sense to force the party who initiates negotiations to do so at his peril.

Daubert v. Merrel Dow Pharmaceuticals, Inc. U.S (1993) *Facts*: Jason Daubert and Eric Schuller were minors born with birth defects. The minors and their parents (Daubert) (plaintiffs) brought suit against Merrell Dow Pharmaceuticals (Merrell) (defendant), alleging that its product, Bendectin, caused the defects. Daubert brought forth the testimony of eight scientific experts who had concluded that Bendectin could cause birth defects. *PH*: However, the district court granted Merrell's motion for summary judgment and the United States Court of Appeals for the Ninth Circuit affirmed because Daubert's experts' opinions were based on scientific techniques that were not "generally accepted" in the scientific community and as a result, their testimony was not admissible under Frye v. United States 293 F.1013 (D.C. Cir.1923). The United States Supreme Court granted certiorari to determine the proper standard for admitting expert testimony of scientific knowledge. *Issue: Whether a theory of technique is scientific knowledge that will assist the trier of fact will be whether it can be (and has been tested).

*Holding*: Vacated; *Reasoning*: The respondent does not present any clear indication that Rule 702 or the Rules as a whole were intended to incorporate a "general acceptance" standard.

United States v. Zhyltsou (2d Cir. 2014) *Facts*: Alexander Zhyltsou (defendant) was charged with forging a birth certificate for Vladyslav Timku. Timku, who had previously been convicted of conspiracy to commit wire fraud and identity theft, testified that Zhyltsou had created the fake birth certificate and sent it to Timku from Zhyltsou's email address, [email protected] (Gmail address). The prosecution introduced a copy of the email, to which the forged birth certificate was attached, into evidence. Over Zhyltsou's objection, the prosecution also introduced a printout of a webpage from VK.com, the Russian version of Facebook. The printout was of a VK.com profile containing Zhyltsou's picture and information. The prosecution introduced the printout as Zhyltsou's VK.com profile and claimed that the profile was created by Zhyltsou. The printout listed Zhyltsou's address on Skype as "Azmadeuz," which the prosecution connected to the Gmail address. The prosecution acknowledged that it did not know whether VK.com required any kind of identity verification prior to the creation of a profile. There was no other evidence that Zhyltsou had created a VK.com profile page. Zhyltsou was convicted, and he appealed.

*Holding*: Vacated; The DC abused its discretion in admitting the VK web page, as it did so without proper authentication under Rule 901. *Reasoning*: The government did not provide a suffice t basis on which to conclude that the proffered printout was what the government claimed it to be - ∆'s profile pae - and there was thus insufficient evidence to authenticate the. VK page and to permit its consideration by the jury.

United States v. Kovel (2d. Cir. 1961) *Facts*: Kovel (defendant) was a former accountant that worked for a tax-law firm. Kovel was not an attorney. Hopps was a client of the law firm and was being investigated for tax fraud by a grand jury in the United States District Court for the Southern District of New York. The grand jury subpoenaed Kovel, seeking to ask Kovel about communications between him and Hopps. Kovel asserted the attorney-client privilege and refused to testify. The district court held Kovel in contempt. Kovel appealed. *Issue*: What circumstances, if any, the attorney-client privilege may include a communication toa nonlawyer by the lawyer's client is the resultant of two conflicting forces

*Holding*: Vacated; There is no valid policy reason for a different result in the fourth case, and we do not read Wigmore as thinking there is. *Reasoning*: What is vital to the privilege is that the communication be made in confidence for the purpose of obtaining legal advice from the lawyer. *Notes*: Experts you hire that work in your office *that will NOT be witnesses* are protected when an attorney discusses a case for the purposes of aiding the attorney in understanding the subject.

In Re Von Bulow (2d Cir. 1987) *Facts*: Claus von Bulow (defendant) was charged with two counts of assault with attempt to murder his wife, Martha. The trial court convicted him, but the court of appeals reversed and acquitted him. Subsequently, Martha's children from a previous marriage (plaintiffs) brought a civil suit against von Bulow for assault, negligence, fraud, and RICO violations. While the civil suit was pending, von Bulow's appellate attorney published a book about the criminal case. Von Bulow helped with the book and even encouraged its release. The book contained excerpts of conversations between von Bulow and his attorney, but not the entire conversations. The plaintiffs filed a motion to compel disclosure of certain communications between von Bulow and his attorney on the grounds that the book constituted a waiver of von Bulow's attorney-client privilege. *PH*: The United States District Court for the Southern District of New York (District Court) found that von Bulow's attorney-client privilege had been waived and that the plaintiffs were entitled to discover (1) "the entire contents of all conversation from which [the attorney] published extracts in [the book]," (2) all subject matter areas related to the conversations, and (3) related conversations with other defense attorneys. Von Bulow sought a writ of mandamus requiring the District Court to vacate its order.

*Holding*: Von Bulow waived his privilege and the DC did not abuse its discretion. The extrajudicial disclosure of an attorney-client communication - one not subsequently used by the client in a judicial proceeding to his adversary prejudice - does not waive the privilege as to the undisclosed portions of the communication. *Reasoning*: A client may by his actions impliedly waived the privilege or consent to disclosure. Matters actually disclosed in public lose their privileged status because they obviously are no longer confidential. The cat is let out of the bag, so to speak. But related matters not so disclosed remain confidential. *Notes*: By allowing publication of confidential communications in the book, petitioner waived his attorney client privilege.

Beech Aircraft Corp. v. Rainey U.S (1988) *Facts*: π's wife was killed during a pilot training exercise along with her student, and he wrote a report that explained what he thought happened, but when cross examined he asked about a specific section of the report that may have showed human error, however, they objected on redirect when π tried to explain what the entire report said. The opposing party misled the jury to believe that the π believed his wife caused the crash when the entire report explains the opposite.

*Holding*: We agree with the unanimous holding of the CoA en banc that the DC erred in refusing to permit Rainey to present a more complete picture of what he had written to Morgan The DC refused to admit the proffered completion evidence was a clear abuse of discretion. *Reasoning*: When on 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 Rule 401 and 402. The explanation of the report should have been admitted not to prove the accident was caused by rollback, BUT to give context to the statements.

United States v. Zolin (U.S 1989) *Facts*: In a case against the Church of Scientology (Church) (defendant), the IRS (plaintiff) sought to introduce into evidence tape recordings of meetings between representatives of the Church and its attorney. The IRS claimed that the tapes fell within the crime-fraud exception to the attorney-client privilege and asked the district court to listen to the tapes in camera to determine if the privilege applied. The IRS attempted to provide the court with partial transcripts of the tape recordings that it acquired from a confidential source so that the court could make its determination. *PH*: The district court refused to listen to the tapes and the court of appeals affirmed by categorically refusing to listen to the tapes or read the transcripts. The IRS appealed. *Issue*: Whether a DC may ever honor the request of the party opposing the privilege to conduct an in camera review of allegedly privileged communications to determine whether those communications fall within the crime-fraud exception.

*Holding*: We conclude that no express provision of the FRE bars are such of in camera review, and that it would be unwise to prohibit in it all instances as a matter of federal common law. A complete prohibition against opponents'' use of in camera review to establish the applicability of the crime-fraud exception is inconsistent with the polices underlying the privilege. *Reasoning*: The cost of imposing an absolute bar to consideration of the communications in camera for purpose of establishing the crime-fraud exception are intolerably high.

Williams v. Illinois S. Ct. (2012) *Facts*: Sandy Williams (defendant) was charged with rape. The prosecution called Sandra Lambatos, a forensic specialist, as an expert witness. Lambatos testified about a DNA profile that was created by Cellmark, an independent laboratory, from semen found in the victim's vagina. The DNA profile matched Williams's DNA. Lambatos testified that Cellmark was an accredited laboratory. However, Lambatos did not testify as to how the specific Cellmark DNA profile had been created. The prosecution also did not call the Cellmark analyst who had created the DNA profile to testify. *PH*: Williams was convicted. The trial court ruled that Lambatos could assume the DNA profile was valid without testifying to its validity. The Illinois Appellate Court and the Illinois Supreme Court both affirmed. The United States Supreme Court granted certiorari. *Issue*: Whether Crawford precludes an expert witness from testifying in a manner that has long been allowed under the law of evidence. Whether Crawford substantially impedes the ability of prosecutors to introduce DNA evidences and thus effectively relegate the prosecution in some cases to reliance on older, less reliable forms of proof.

*Holding*: We conclude that this form of expert testimony does not violate the Confrontation Clause because that provision has no application to out of court statements that are not offered for the truth of the matter asserted. Even if the report produced has been admitted, there would have been no Confrontation Clause violation. *Reasoning*: The report was produced before any suspect was identified. *Concurring*: Not testimonial because it lacked the formalities and solemnity. *Dissent*: admission of the out of court statement in this context has no purpose separate fro its truth; the fact finder can do nothing with it except assess its truth and so the credibility of the conclusion it serves to buttress. *Notes*: The lab techs have no "dog in the fight." They are performing calculations, but they are not seeking to implicate a specific suspect. The prosecutions expert does not have firsthand knowledge of the profile produced by Cellmark was based on the vaginal swabs taken from the victim. The court says the out of court statements that are related by the expert solely for the purpose of explaining the assumptions on which the opinion rest are not offered for their truth and thus fall outside of the Confrontation Clause.

Seiler v. Lucasfilm, LTD. (9th Cir. 1987) *Facts*: Seiler a graphic artist alleged copyright infringement against Lucasfilms for the Imperial Walkers in The Empire Strikes Back. *PH*: DC granted summary judgment to Lucas after the evidentiary hearing.

*Holding*: We hold the Seilers's drawings were "writings" within the meaning of Rule 1001(1); they consist not of letters, words, or numbers but of their equivalent." To hold otherwise would frustrate the policies underlying the rule and introduce undesirable inconsistencies into the application of the rule. In this case, no reconstruction can substitute for the originals. The admissibility of the reconstructions was dependent upon a finding that the originals were not lost or destroyed in bad faith, the trial judge properly hald the hearing to determine their admissibility. *Reasoning*: Since the contents are material and must be proved, Seiler must either produce the original or show that it is unavailable through no fault of his own.

Hughes v. Meade (Ky. 1970) *Facts*: An individual contacted Henry Hughes (plaintiff), an attorney, for assistance in returning a stolen typewriter to the Lexington Police Department. Later, Williams was charged in Fayette Circuit Court for stealing the typewriter. Hughes was called as a witness in Williams's trial. Hughes was asked to identify the individual who had hired him to return the typewriter. Hughes refused to answer, asserting the attorney-client privilege. *PH*: Judge Mitchell Meade (defendant) held Hughes in contempt for his refusal to answer the question. Hughes filed a petition for a writ of prohibition against Judge Meade.

*Holding*: Writ is denied; The principle transaction, the delivery of stolen property to the police was not an act within the professional capacity of the petitioner, nor was it the rendition of legal services. *Reasoning*: It is generally held, with exceptions, that the client's identity is not privileged communication. If the act in question fairly cannot be said to fall within the scope of professional employment, the privilege cannot be invoked.

Bruton v. United States U.S (1968) *Facts*: A joint trial convicted both ∆s by a jury on federal armed robbery charges. The ∆ Evan's confessed that he and petitioner committed the armed robbery. *PH*: The court set aside Evan's conviction bc of Miranda grounds the confession should not have been admitted against Evans, BUT the judge just gave instructions that the confession was inadmissible against the petitioner and therefore had to be disregarded.

*Holding*: because of the substantial risk that the jury, despite instructions to the contrary, looked to incriminating extrajudicial statements in determining petitioner's guilt admission of Evans' confession in this joint trial violated petitioner's right of cross-examination secured by the Confrontation Clause of the 6th amendment. Delli Paoli is overruled and the current case is reversed. We cannot accept limiting instructions as an adequate substitute for petitioner's constitutional right of cross examination. The effect is the same as if there had been no instructional at all. *Reasoning*: Not only are the incriminations devastating to the ∆ but their credibility is inevitably suspect, a fact recognized when accomplices do tae the stand and the jury is instructed to weigh their testimony carefully given the recognized motivation to shift blame onto others.

United States v. Gann (9th Cir. 1984) *Facts*: ∆ was convicted of illegally possessing a sawed-off shotgun. Detectives went into the ∆s home and heard him speak to his attorney on the phone and then introduced those statements in court.

*Holding*; Affirmed; Gann knew or should have known that third parties were present, his attorney-client privilege claim must fail. *Reasoning*: He cannot show his conversation with his attorney was made in confidence. *Notes*: You can waive the privilege element of "in confidence" by allowing others to be present

Graham v. State (Tex. Crim. App. 1933) *Facts*: ∆ wanted to introduce evidence of the victim's chastity to prove that she had sexual behaviors that would tend to show she either lied after he denied her advances.

*Notes*: The jury might conclude that she sought to bestow carnal favors, which were rejected, and that, as a result, a fight ensued in which she received the injuries described the testimony.

United States v. Tilghman (D.C. Cir. 1998) *Facts*: Warren Tilghman (defendant) was charged with lying on a federal form to receive disability benefits. Specifically, Tilghman owned a business and had claimed on the form that he had no earnings from the business. Also, Tilghman asserted that an employee of the U.S. Department of Labor (DOL) had told him in a phone call that he could earn up to $300 per month without reporting the money on the form in question. At trial, Tilghman testified in his own defense. The trial judge questioned Tilghman extensively. For instance, when discussing the phone call between Tilghman and the DOL, the judge twice asked, "We just have to take your word for it?" Additionally, the judge questioned Tilghman about his business, stating, "I see. It's a peculiar business where everybody stays in for years and loses money all the time." *PH*: Tilghman was convicted. Tilghman appealed, arguing that the judge's questioning had prejudiced the jury, thus denying him a fair trial.

*Reasoning*: Because the jury could reasonably have interpreted the judge's pointed comments as reflecting his personal disbelief of Tilghman, we cannot find that the government has "proven beyond a reasonable doubt that the judge's commentary did not contribute to the verdict obtained. The jury could well have concluded that the judge considered Tilghman as untruthful witness. Although jury instructions can cure certain irregularities, at least under the plain error standard, we agree with the Second Circuit that where, as here, the trial judge asked question, objected to by counsel, that could have influence the jury's assessment of the ∆'s veracity, such interference with jury fact-finding cannot be cured by standard jury instructions.

United States v. Dominguez (1st Cir. 1990) *Facts*: Dominguez was found guilty kidnapping, robbing, and murdering Mitri when he attempted to cross the border. Evidence showed it was a gunshot that killed Mitri. The ∆ objected to the relevance of evidence showing he had a gun, and that he tried to replace the barrel.

*Reasoning*: The fact that Dominguez owned a gun makes his guilt somewhat more probable than if he did not own a gun. *FRE 401* - Test for Relevancy: evidence having any tendency to make the existence of any fact that is of consequence...more probable or less probable than it would be without evidence.

United States v. Cunningham (7th Cir. 1996) *Facts*: Cunningham (defendant), a nurse, was charged with tampering with syringes containing Demerol, a powerful painkiller. Cunningham admitted at trial that she was formerly addicted to Demerol. The prosecution sought to prove her motive to tamper with the syringes by introducing evidence that she had previously had her nursing license suspended for theft of Demerol and that she had falsified drug test results in order to get the license reinstated. *PH*: The judge admitted this evidence but did not admit evidence of Cunningham's conviction for that incident. Cunningham was convicted of the tampering charge and she appealed on the grounds that the evidence of her license suspension and falsifying drug tests was improperly admitted.

*Reasoning*: The rule is unnecessary because the evidence could be permitted under 404(b)(2).

Lyons Partnership v. Morris Costumes, Inc. (4th Cir. 2001) *Facts*: Morris Costumes sold a costume that infringes on Lyons trademarks in Barney the dinosaur. The trial court excluded evidence that customers were confused by the consume and assumed it was barney.

*Reasoning*: the evidence was introduced not to show that the costume was in fact barney, but to prove that the children and reporters expressed their belief that those persons were barney. The evidence was of their reactions and not hearsay. - If the kids say "I think that's barney" then it is an assertion to prove that it is barney - BUT saying just "barney" is not hearsay because it is not used to prove its barney, they're trying to prove Duffy is so close that there is confusion.

*Questioning by Judge*

*Rule 614. Court* *(a) Calling.* The court may call a witness on its own or at a party's request. Each party is entitled to cross-examine the witness. *(b) Examining.* The court may examine a witness regardless of who calls the witness. *(c) Objections.* A party may object to the court's calling or examining a witness either at that time or at the next opportunity when the jury is not present.

Rock v. Arkansas U.S (1987) *Facts*: Rock (defendant) was charged with manslaughter in the shooting death of her husband. The incident stemmed from an argument between the two that became physical. At first, Rock could not recall the exact circumstances that led to the shooting. However, after being hypnotized, Rock recalled that she had never pulled the trigger, but that the gun had accidently discharged when her husband grabbed her arm during the fight. An inspection of the gun indicated that it was defective and had a tendency to go off without the trigger being pulled. Rock sought to testify to her post-hypnosis recollection about the incident at trial. However, the trial court excluded all of Rock's testimony to recollections she had after the hypnosis, limiting her testimony to what she had recalled prior to the hypnosis, which was recorded in the hypnotist's pre-hypnosis notes. *PH*: As a result of this exclusion, the trial court convicted Rock. The Supreme Court of Arkansas affirmed. The United States Supreme Court granted certiorari. *Issue*: Whether Arkansas' evidentiary rule prohibiting the admission of hypnotically refreshed testimony violated petitioner's constitutional right to testify on her own behalf as a ∆ in a criminal case.

*Rule*: 14th Amendment and 6th Amendment *Holding*: Vacated; Arkansas's per se rule excluding all post hypnosis testimony infringes impermissibly on the right of a ∆ to testify on his own behalf. *Reasoning*: Wholesale inadmissibility of a ∆'s testimony is an arbitrary restriction on the right to testify in the absence of clear evidence by the State repudiating the validity of all posthypnosis recollection. The right to testify on one's own behalf at a criminal trial has sources in several provisions of the Constitution.

United States v. Lindemann (7th Cir. 1996) *Facts*: George Lindemann (defendant) was charged with wire fraud in connection with a conspiracy to have his horse killed for the purpose of collecting insurance proceeds. Tommy Burns testified about the conspiracy and Lindemann's involvement. On cross-examination, Lindemann suggested that Burns's testimony was biased because Burns would not have received a plea deal without testifying against Lindemann. On redirect examination, Burns testified that he had killed horses for many other people, and had cooperated with the government during the prosecutions of approximately 30 other people. *PH*: Lindemann was convicted. Lindemann appealed, arguing that Burns's testimony on redirect examination should not have been admitted, because it was improper bolstering of Burns's credibility.

*Rule*: 402 *Holding*: Affirmed; The admission of evidence regarding Burns' cooperation in other case was relevant. Because Lindemann attacked the credibility of Burns' testimony by asserting that Burns had a bias in Lindemnn's case, the government was permitted to rebut that assertion by introducing evidence of its own. *Reasoning*: the DC immediately warned the jury that it was not to infer Lindemann's guilt from the fact that other indicated individuals had pleas guilty. The evidence was used only to assess Burns' credibility, not as evidence of Lindmann's guilty. *Notes*: The ∆ claims that the witness is biased because his testimony will lead to him getting a better plea deal. The ∆ argues that introducing the rehabilitative evidence would start a mini trial. However, the government had the right to rehabilitate the witness after his credibility was attacked. The evidence is coming in purely to assess the credibility of the witness, however, there is a danger that the because the witness stated that most people he had named (90%) ended up pleading guilty that the jury would infer that the ∆ was most likely guilty.

Rosen v. United States U.S (1918) *Facts*: Rosen (defendant), Wagner (defendant), and Broder were charged with conspiracy to receive stolen checks. Broder pleaded guilty and was called as a witness to testify against the defendants. The defendants objected to Broder's testimony, arguing that Broder was not competent to be a witness because he had previously pleaded guilty to forgery in another case. The United States District Court for the Eastern District of New York permitted Broder to testify. *PH*: The defendants were convicted. The defendants appealed, relying on the common-law rule that an individual convicted of forgery was incompetent to testify as a witness unless and until the individual was pardoned. The court of appeals affirmed. The United States Supreme Court granted certiorari.

*Rule*: 601 *Holding*: Affirmed; The truth is more likely to be arrived at by hearing the testimony of all persons of competent understanding who may seem to have knowledge of the facts involved in a case, leaving the credit and weight of such testimony to be determined by the jury or by the court, rather than by rejecting witness as incompetent. *Reasoning*: The dead hand of the common law rule should no longer be applied to such cases. *Notes*: The crime is forgery is a crime of dishonesty, however, in a trial when you're trying to use the facts to get to the truth, the best way to discover what happened, you have to call in people with personal knowledge, despite the fact that they might lie.

United States v. Lightly (4th Cir. 1982) *Facts*: Randy Lightly (defendant) and Clifton McDuffie, inmates at Lorton Reformatory, were investigated regarding their involvement in the stabbing of Terrance McKinley, a fellow inmate. The grand jury indicted Lightly but not McDuffie because a court appointed psychiatrist found McDuffie to be criminally insane and incompetent to stand trial. At Lightly's trial, McKinley, two other inmates and McKinley's doctor testified that Lightly and McDuffie cornered McKinley in his cell and repeatedly stabbed him. The testimony indicated that the bad cut on Lightly's hand was the result of this altercation. Lightly, whose testimony was corroborated by the testimony of three other inmates, said that he saw McDuffie stabbing McKinley and when he stepped in to stop McDuffie, McDuffie slashed Lightly's hand. Lightly sought to have McDuffie testify. McDuffie, who was confined to a mental hospital, would have testified that he was the only person attacking McKinley. McDuffie's treating physician testified that McDuffie's memory was sufficient, that he understood the oath and was able to testify about what he saw. After declining to hear McDuffie's proffered testimony in camera, the court ruled that McDuffie was not competent to testify because he had been found criminally insane and incompetent to stand trial and suffered from hallucinations. *PH*: Lightly was convicted of assault with intent to commit murder and appealed his conviction claiming that the trial court erred in disqualifying McDuffie as a witness under Federal Rule of Evidence (FRE) 601.

*Rule*: 601 *Holding*: Reversed, it was error to prevent McDuffie from testifying and Lightly is entitled to a new trial. *Reasoning*: Every witness is presumed competent to testify unless it can be shown that the witness does not have personal knowledge of the matters about which he is to testify , that he does not have the capacity to recall, or that he does not understand the duty to testify truthfully.

United States v. Hickey (6th Cir. 1990) *Facts*: Quinn Hickey (defendant) was charged with conspiracy to distribute cocaine. At trial, the prosecution called Jack Ventimiglia to testify against Hickey. During cross-examination, Ventimiglia admitted that he was a cocaine addict, had poor memory, and was unsure about certain details of the matter to which he was testifying. There were also several inconsistencies in Ventimiglia's testimony. However, the district court admitted Ventimiglia's testimony, and Hickey was convicted. *PH*: Hickey appealed, arguing that Ventimiglia's testimony should not have been admitted, because Ventimiglia was unable to satisfy the personal-knowledge requirement of Federal Rule of Evidence (FRE) 602 due to his addiction and lack of memory.

*Rule*: 602 *Holding*: Affirmed; Testimony should not be exclude for lack of personal knowledge unless no reasonable juror could believe that the witness had the ability and opportunity to perceive the event that he testifies about. *Reasoning*: The government introduced apart from Ventimiglia's testimony, "substantial circumstantial evidence that would tend to support the fact that Hick was, in part, a seller.

United States v. Ward (9th Cir. 1993) *Facts*: Wallace Ward (defendant) was charged with attempting to evade income tax and failing to file income taxes. Ward represented himself in the court proceedings. Prior to trial, Ward filed a motion proposing to change the oath that would be sworn by witnesses at his trial. In particular, Ward requested that the phrase "fully integrated Honesty" replace the word "truth." A magistrate denied Ward's motion. The district court affirmed the denial. At trial, Ward again sought to use his preferred oath. Ward offered to take both the traditional oath and his alternate oath. The district court did not allow Ward to do so. Ward did not take the stand as a witness or call any other witnesses, and he was convicted of all charges. Ward appealed.

*Rule*: 603 *Holding*: Reversed and Remanded; The DC clearly abused its discretion in refusing the oath and preventing the ∆'s testimony. The court's interest in its precise form of oath must yield to Ward's First Amendment Rights. *Reasoning*: There is no constitutional or statutory required oath. Affirmation is simply a solemn undertaking to tell the truth; no special verbal formula is required. The principle that the form of the oath must be crafted in a way that I s meaningful to the witness predates the constitution.

Warger v. Shauers U.S (2014) *Facts*: Gregory Warger (plaintiff) was in a car accident caused by Randy Shauers (defendant). Warger's leg had to be amputated as a result, and Warger brought suit against Shauers for negligence. One the jurors, Regina Whipple, stated during voir dire that she was able to be an impartial juror on cases involving a car accident. The jury found in favor of Shauers. Subsequently, one of the jurors signed an affidavit stating that Whipple had said during jury deliberations that her daughter had previously caused a car accident in which a person had died. According to the affidavit, Whipple said that if someone had sued her daughter, it would have "ruined her life. *PH*: Warger filed a motion for a new trial based on the juror's affidavit about Whipple's statements. The district court denied Warger's motion under Federal Rule of Evidence (FRE) 606(b). The United States Court of Appeals for the Eighth Circuit affirmed. The United States Supreme Court granted certiorari.

*Rule*: 606(b) *Holding*: The affidavit Warger sought to introduce was not admissible under Rule 606(b)(2)(A)'s exception for evidence as to whether "extraneous prejudicial information was improperly brought to the jury's attention. In Tanner the Court concluded that 606(b) precludes a criminal defendant from introducing evidence that multiple jurors had been intoxicated during trial, rejecting the contention that this exclusion violated the ∆'s 6th amendment rights to "a tribunal both impartial and mentally competent to afford a hearing." *Reasoning*: The excluded affidavit was on the internal side of the line. *Notes*: Tanner safeguards to jury misconduct 1. Voir dire 2. The court and counsel's ability to observe the jury during trial 3. Juror's opportunity to "report inappropriate juror behavior to the court before they render a verdict" ; and 4. The opportunity to use non-juror evidence of misconduct to impeach the verdict following trial.

United States v. Webster (7th Cir. 1984) *Facts*: Webster (defendant) was charged with aiding and abetting the robbery of a bank. At trial, the prosecution called King, the man who robbed the bank, as a witness against Webster. To the prosecution's surprise, however, King's testimony actually exculpated Webster. As a result, the prosecution sought to impeach King by introducing evidence of prior statements King had made that inculpated Webster. The trial court admitted the prior inconsistent statements under an exception to the hearsay rule, and instructed the jury to use the statements for impeachment purposes only *PH*: The jury convicted Webster. He appealed, arguing that the court should "hold that the government may not impeach a witness with his prior inconsistent statement unless it is surprised and harmed by the witness's testimony."

*Rule*: 607 *Holding*: Affirmed; In this circumstance the court does not see how it can be thought that the prosecution but King on the stand knowing he would give no useful evidence *Reasoning*: Impeachment by inconsistent statement may not be permitted where employed as a mere subterfuge to get evidence before the jury evidence not otherwise admissible.

United States v. Ince (4th Cir. 1994) *Facts*: On September 4, 1994, a rap concert and dance at Fort Belvoir, Virginia ended when members of two of the performing bands got in a fight. Shortly thereafter, a man wearing an orange shirt or jacket fired a gun at trucks leaving the recreation center. Military police pulled over a van carrying Nigel Ince (defendant), Angela Neumann, and two other friends at the exit to Fort Belvoir. Ince was identified by two men as the person who had fired the shots (though he was not wearing an orange shirt at the time). Neumann then gave an unsworn statement to military police officer Roger Stevens that Ince had admitted firing the shots to Neumann. At Ince's trial, the prosecution called Neumann and asked her to testify regarding Ince's statements. Neumann claimed she did not recall and the unsworn statement did not refresh her recollection. The prosecution then called Stevens to testify as to what Neumann said, over Ince's objections. The trial ended with a deadlocked jury. At the second trial, Neumann again did not recall and the prosecution again called Stevens to impeach Neumann as to her memory loss. Stevens testified that Neumann told him that Ince had confessed. Ince's defense was mistaken identity; that it was another person who had fired the gun. *PH*: Ince was convicted at the second trial and appealed.

*Rule*: 607 Issue: Whether the admission of Steven's testimony constituted reversible error. *Holding*: Reversed; Reasoning: At a criminal trial, however, there are limits on the Government's power to impeach its own witness by presenting his prior inconsistent statements. The probative value of Steven's testimony for impeachment purposes was nil. Notes: Morland Rule "cannot 'impeach' your own witness as a mere subterfuge to get before the jury evidence not otherwise admissible." Since the governed knew that the testimony would be inconsistent it was not surprised or prejudiced. Prosecution sought to use Rule 607 to get around hearsay limitation. Limiting instructions are not always sufficient.

Simmons, INC. v. Pinkerton's, Inc. (7th Cir. 1985) *Facts*: Simmons, Inc. (Simmons) (plaintiff) hired Pinkerton's, Inc. (Pinkerton's) (defendant) to provide security for Simmons's warehouse. A fire caused extensive damage to the warehouse, and the Indiana fire marshal determined that the fire was caused by William Hayne, a Pinkerton's security guard assigned to the warehouse. Simmons brought suit against Pinkerton's for property damages. Before trial, Hayne agreed to take a polygraph test at the request of a Pinkerton's investigator, but never scheduled the test. Nevertheless, Hayne told the investigator that he had taken the test and passed. At trial, Simmons called Hayne as a witness and asked him, over Pinkerton's objection, if he had lied about taking the polygraph. Hayne admitted to lying about the polygraph. The district court permitted this line of questioning as evidence of Hayne's character for truthfulness under Federal Rule of Evidence (FRE) 608(b). *PH*: The district court found in favor of Simmons. Pinkerton's appealed. *Issue*: Whether the party seeking to introduce it for purposes of contradiction would be entitled to prove it as a part of his case.

*Rule*: 608(b) *Holding*: Affirmed; The court properly exercised its discretion in deciding that the testimony could be elicited under Rule 608(b). *Reasoning*: The inference to be drawn is not that the witness was lying, but that the witness made a mistake of fact, and so perhaps her testimony may contain other errors and should be discounted accordingly.

United States v. Ayala-Pizarro (1st Cir. 2005) *Facts*: Luis Ayala-Pizarro (defendant) was arrested by Officer Mulero outside of a house. The police found 153 aluminum-foil packages of heroin in Ayala's pocket. At trial, Mulero testified that the house was a known drug point. Mulero explained how drug points worked and stated that drugs seized at drug points were generally packaged in aluminum foil. Mulero's testimony was based on his personal experience with the specific house, drug points generally, and heroin distributed at drug points. The defense challenged Mulero's testimony, arguing that it was expert testimony and that the prosecution had not given the required prior notice of expert testimony. *PH*: The district court overruled Ayala's objections and permitted Mulero to testify as a lay witness. Ayala was convicted, and he appealed.

*Rule*: 701 *Holding*: Affirmed; This testimony did not cross the line to become expert testimony. *Reasoning*: It required no special expertise for Mulero to conclude, based on his observations, that places which sell drugs are often protected by people with weapons.

United States v. Freeman (6th Cir. 2013) *Facts*: Freeman was convicted by a jury of conspiracy to use interstate commerce facilities in the commission of murder for hire.

*Rule*: 701 *Holding*: Vacated and Remanded; Agent Lucas did not properly establish the foundation for his testimony under 701. He did not provide any principle or methodology reliably applied to the facts. *Reasoning*: a case agent testifying as a lay witness may not explain to the jury what inferences to draw from recorded conversations involved ordinary language. *Notes*: The meaning of "situation" is unique to the case, and not a term that would mean the same thing to others outside of the case. Opposed to a word like 8ball that would always have the same meaning.

United States v. Meling (9th Cir. 1995) *Facts*: Joseph Meling was convicted with six counts of product tampering and sentenced to life in prison after he attempted to poison his wife by giving her Sudafed laced with cyanide, and then had tried to cover his tracks by putting cyanide in five packages of Sudafed and leaving them of drug store shelves - killing two people before the manufacture had a recall.

*Rule*: 701, 704 *Holding*: Affirmed *Reasoning*: Lay opinion testimony is admissible if it is "rationally based on the perception of the witness' and ...helpful to the jury in acquiring a clear understanding of the witness' testimony of the determination of a fact in issue. *Notes*: The government argues that the jury is not in as good of a position to assess the 911 call bc the operator hears these types of calls at the time and can determine whether the hysteria is real or false.

United States v. Truman (2d Cir. 2012) *Facts*: A building partly owned by the ∆ was burned down. His twenty year old son Truman Jr. was arrested and confessed to burning the building at his father direction. Truman Jr plead guilty to arson pursuant to a cooperation agreement with the DA of Madison County and served a two year imprisonment term. *PH*: Truman was found guilty by the judge granted a new trial partly bc the judge concluded in retrospect that Truman Jr.'s state court testimony was inadmissible hearsay.

*Rule*: 801(d)(1)(A) *Holding*: Reversed; a Witness who testifies under oath and is subject to cross examination in a prior state court proceeding explicitly refuses to answer the same questions at trial, the refusal to answer is inconsistent with his prior testimony and the prior testimony is admissible under Rule 801(d)(1)(A). *Reasoning*: Our holding also coheres with a principal purpose of Rule 801(d)(1)(A), which is to protect against the turncoat witness who changes his story on the stand and deprives the party calling him of evidence essential to his case.

Tome v. United States (U.S 1995) *Facts*: Tome (defendant) had primary physical custody of his four-year-old daughter, A.T. A.T.'s mother had been unsuccessful in her efforts to get full custody. After A.T. spent the summer with her mother, the mother reported that Tome had sexually abused A.T. Tome was charged and tried in the United States District Court for the District of New Mexico, because the events took place on the Navajo Indian Reservation. At trial, Tome defended himself on the ground that the charges were made up so that A.T. could live with her mother. A.T. testified, but she was not very forthcoming about what happened. The prosecution sought to introduce into evidence seven out-of-court statements made by A.T. to six witnesses describing the alleged sexual abuse. Tome objected, but the prosecution argued that the evidence was needed to rebut the implicit allegation that A.T. was lying. The district court admitted the statements under Rule 801(d)(1)(B). The prosecution placed great weight on the statements during closing arguments but made no reference to the alleged purpose of rehabilitating A.T.'s testimony. *PH*: The jury found Tome guilty. The United States Court of Appeals for the Tenth Circuit affirmed, concluding that the statements were admissible even though they were made after the motive to lie arose. The court of appeals explained that the pre-motive requirement for such statements related to relevancy, not hearsay rules. The United States Supreme Court granted certiorari.

*Rule*: 801(d)(1)(B) (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 *Issue*: Whether out of court consistent statements made after the alleged fabrication, or after the alleged improper influence or motive arose, are admissible under the Rule. Whether the rule embodies the temporal requirement? *Holding*: Reversed; The holding is confined to the requirements for admission under the rule. The Rule permits the introduction of a declarant's consistent out of court statements to rebut a charge of recent fabrication or improper influence or motive only when those statements were made before the charged recent fabrication or improper influence or motive. The conditions of admissibility were not established here. *Reasoning*: A consistent statement that predates the motive is a square rebuttal of the charge that the testimony was contrived as a consequence of the motive. The forms of impeachment within the Rule's coverage are only ones in which the temporal requirement makes the most sense. The drafters did not intent to abandon the temporal requirement. *Concurring* (Scalia): Having been prepared by a body of experts, the notes are persuasive scholarly commentaries concerning the meaning of the rules, but they bear no special authoritativeness as the work of the draftsmen, any more than the views of Alexander Hamilton bear more authority than the views of Thomas Jefferson with regard to the meaning of the constitution. *Dissent*: There is no basis for distinguishing between promotive and postmotive statements. Special circumstances may indicate that the prior statement was made from some reason other than the alleged improper motivation.

United State v. Owens U.S (1988) *Facts*: A correctional counselor at a prison was attacked and beaten with a metal pipe which fractured his skull and he was hospitalized for a month. He was interviewed in April but could not remember his attacker's name, but in a second interview he described the attack and named his attacker and identified him.

*Rule*: 801(d)(1)(C) *Holding*: Conviction upheld; *Reasoning*: The advisory committee believed that the use of out of court identifications should be fostered rather than discouraged. Memory fades. The prior identification does not have to be consistent or inconsistent

Salvitti v. Throppe (Pa. 1942) Facts: The πs were injured after hitting a tree. They claim they had to swerve to avoid a negligently driven truck. The s claim the ∆ admitted that the accident was his fault, they s sue Throppe and his employer. The employer claims because he was not present at the accident and could only base his remarks on what the driver told him (personal knowledge).

*Rule*: 801(d)(2)(A) *Holding*: Affirmed; Personal knowledge is not required in the case of an admission by a party. *Reasoning*: A person's assertions regarding his own affairs have always some testimonial value regardless of the exactness of his personal observation of the data leading to his belief. - Rule 602 - Need for Personal Knowledge - Personal Knowledge ... is not required in the case of an admission by a party - Advisory Committee Notes to FRE 801(d)(2): "No guarantee of trustworthiness is required in the case of an admission."

United States v. McGee (7th Cir. 1999) *Facts*: The ∆ was interviewed by police after a bank robbery and gave three different versions of the events. The ∆ argues that the testimony is not admissible as an admission by a party-opponent because it was not inculpatory.

*Rule*: 801(d)(2)(A) *Holding*: The Court rejects Mr. McGee's contention that the DC erred in admitting his statement to Detective Buschmann. *Reasoning*: The statement need only be made by the party against whom it is offered. - Need not be obviously against interest - Don't confused with declarations against interest (Rule 804(b)(3))

United States v. Fortes (5th Cir. 1980) *Facts*: The government relied heavily on the testimony of Anton Ward, who at the time of trial was serving a three-year prison sentence for conspiracy to commit bank robbery. Ward testified that on the day following appellants' arrival in Connecticut, he asked Fortes and Jemison "if they did a bank robbery." Fortes answered that they had. Jemison objected repeatedly to the admission of Fortes' statements against her.

*Rule*: 801(d)(2)(B) *Holding*: Affirmed; *Reasoning*: Ward testified several times that Jemison was presented during the conversation and implied that he had directed his question to both Jemison and Fortes but Jemison's unresponsiveness assuming she is present and conscious of the conversation "gives consent."

Sea-land Service, Inc. v. Lozen Internationa, LLC (9th Cir. 2002) *Facts*: Sealand sued Lozen to recover money on a shipping contract, and Lozen counterclaimed for damages related to Seland's failure to make timely of one of the shipments at issue. The parties settled except regarding Lozen's counterclaims. Lozen argues that the TC improperly excluded an Exhibit that was an email authorized by a Sealand employee and forwarded to Lozen by another employee.

*Rule*: 801(d)(2)(D) - made by the party's agent or employee on a matter within the scope of that relationship and while it existed *Holding*: Reversed and Remanded; The DC abused its discretion when it excluded the email. *Reasoning*: The employee's email manifested an adoption or belief in the truth of the information contained in the email. - Martinez was one of Sealand's employee at the time the email was written and the contents of the email were within the scope of her employment

United States v. Murry (3d Cir. 1997) *Facts*: Appellant Murry was convicted of an intentional killing, conspiracy to distribute cocaine, and distribution of and possession with intent to distribute cocaine.

*Rule*:608(a)(2) *Holding*: This testimony included "extrinsic evidence" of Brown's character for truthfulness. Goshert's testimony contravened Rule 608(b). *Reasoning*: Testimony that Brown had "made 65 or 66 cases" was more specific than can be justified as necessary to establish a foundation. *Notes*: In this case, the government brings Lt. Goshert to bolster the credibility of the informant which is extrinsic evidence of the informant's character and is not permissible under 608(b). You are allowed to lay a foundation to establish that the basis for the opinion that the character witness is about to give, however, here the testimony was too specific.

*Special Rules for Real Evidence*:

- Authentication - Best evidence rule

Injury Report Notes

- Before admitting the hearsay statements, the court must determine whether the *statements were reasonably considered by the declarant* as being pertinent to the diagnosis or treatment sought - Why is the rationale of this exception? You will be truthful to your doctor because you want to receive the best treatment. - Why would a you lie to a doctor? Ex - to obtain painkillers for recreational purposes. - Is it reasonable to think that the patient would think it is pertinent? Yeah, because the patient doesn't know what is important to a medical diagnosis. Therefore, they may believe it is pertinent. - *You should discuss whether the doctor OR the patient believes the information is pertinent*

*Two Kinds of Burden:*

- Burden of Production (burden of producing evidence) - Burden of Persuasion (burden of proof)

*CHARCTER - GENERAL*

- Habit - specific, semi-automatic or sufficiently regular - Character example - Bob is a health nut - Habit - every time bob goes to the third floor he walks up the stairs - Character - jake is reckless - Habit - jake never uses a motor cycle helmet - Character - Jane is a drunk - Habit - Jane always drinks a bottle of red wine with dinner.

Problem 3.52: Pam falls due to a torn carpet in a commercial building. She seeks to introduce testimony by Sam that Tony said to him "I told the building manager to fix that carpet." Admissible?

- No because it is hearsay and there is not value because their

Problem 3.54: ∆ says after accident that it was all her fault. She died two days later. Admissible?

- Not as an 804(b)(2) dying declaration; Could be a statement against interest - 804(b)(3); Could be an admission 801(d)(2) - the statement is offered against an opposing party BUT technically she is not a party, however, the court may let it in.

Some Nonhearsay uses of out of court statements:

- State of mind (mistake, knowledge, belief [barney case] - Effect on listener (fear, duress, knowledge) - Verbal acts ("operative conduct") (fraud, oral transaction, demand, commands).

United States v. Boyce (7th Cir. 2014)

- The hearsay rule is too complex, as well as archaic. - That hearsay evidence should be admissible when it is reliable, when the jury can understand its strengths and limitations, and when it will materially enhance the likelihood of a correct outcome.

United States v. Sacasas (2nd Cir. 1967) *Facts*: As a guy is dying he makes the statement "if anything happens to me, tell them the Greek had nothing to do with it."

- The problem is: 1) this is not a *homicide* case and 2) the statement has nothing to do with the declarant's death. - The statement is not "made about its cause or circumstance."

Notes on FRE 412 (Sex Offenses Cases: Victim)

- The revise rule applies in all case involving sexual misconduct without regard to whether the alleged victim or person accuse is a party to the litigation. - There is no requirement that a criminal charge be pending against a person, or that the action amount to a criminal offense. - The word "behavior" should include activities of the mind including fantasies. This means the rule is broad. - The type of evidence excluded is broad. It includes anything in the past that is sexual, unless it meets an exception. - Why evidence produced by impeachment is important includes...?

807 Notes:

- Used more often in criminal cases than civil. - 807 is often invoked, but RARELY successful. "It is the last hope of a desperate attorney."

Relevance and Irrelevance

1) All irrelevant evidence should be excluded 2) All relevant evidence should be admitted. (with exceptions)

*404(a) EXCEPTIONS:*

1) An accused may introduce pertinent evidence of good character 2) An accused may introduce pertinent evidence of the character of the victim 3) The character of a witness may be done into as bearing on his credibility.

PROBLEM 3.48: Dying declaration because it was

1) a homicide 2) death was believed to be imminent and 3) it was made about the time of death

Unfairly Prejudice

1) the jury will attach undue significance to the evidence or 2) they'll use it for an impermissible purpose

Four Testimonial Infirmities:

1. Ambiguity 2. Insincerity 3. Faulty perception 4. Erroneous memory

*Elements of Privilege*

1. Communication 2. In confidence 3. Between an attorney and client 4. To facilitate legal services.

*Five Modes of Impeachment*:

1. Dishonesty 2. Inconsistency 3. Bias 4. Incapacity 5. Specific Contradiction

*WHY ALLOW PRIOR BAD ACTS OF SEX CRIME BUT NOT OTHER BAD ACT?*

1. Exceptionally probative because it shows unusual disposition or propensity - Are sex crimes really different?

*Five Modes of Rehabilitation*:

1. Honesty 2. Consistency 3. Disinterest 4. Capacity 5. Specific Corroboration

*HEARSAY AND CONFRONTATION*

1. Only applies to the criminal prosecution 2. Right of the accused only, not the government 3. Right to confront. In court testimony, in the presence of the ∆ subject to an opportunity to cross-examination is sufficient but may not always be sufficient.

Factors used to consider the value of testimony:

1. Perception 2. Memory 3. Narration (interpretation) 4. Sincerity

*Two kinds*:

1. Real evidence 2. Demonstrative evidence

Exceptions because of reliability:

1. Spontaneous statements 2. Contemporaneous statements

Conditions under which witnesses are ordinarily required to testify:

1. Under oath 2. Personal Presence at the trial 3. And subject to cross-examination

Two Problems of traditional hearsay rule:

1. What constitutes a statement? 2. What it means for a statement to be introduced "for the truth of the matter asserted."

*Rule*: 804(b)(3)

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.

*Injury Reports*

803(4): (4) Statement Made for Medical Diagnosis or Treatment. A statement that: (A) is made for — and is reasonably pertinent to — medical diagnosis or treatment; and (B) describes medical history; past or present symptoms or sensations; their inception; or their general cause.

*Rule 1003. Admissibility of Duplicates*

A duplicate is admissible to the same extent as the original unless a genuine question is raised about the original's authenticity or the circumstances make it unfair to admit the duplicate.

Rule 103 - Rulings on Evidence: *(a) Preserving a Claim of Error*

A party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party and: (1) if the ruling admits evidence, a party, on the record: (A) timely objects or moves to strike; and (B) states the specific ground, unless it was apparent from the context; or (2) if the ruling excludes evidence, a party informs the court of its substance by an offer of proof, unless the substance was apparent from the context.

*Rule: 803(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.

Motion in limine (def.)

A ruling on evidence before trial

Conditional Relevancy

A situation where one fact is relevant only if another fact is proven.

*Rule 702. Testimony by Expert Witnesses*

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.

Harmless Error Rule

A wrong decision that would not have changed the outcome

*Rule 703. Bases of an Expert*

An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted. But if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect.

*Rule 1004. Admissibility of Other Evidence of Content*

An original is not required and other evidence of the content of a writing, recording, or photograph is admissible if: (a) all the originals are lost or destroyed, and not by the proponent acting in bad faith; (b) an original cannot be obtained by any available judicial process; (c) the party against whom the original would be offered had control of the original; was at that time put on notice, by pleadings or otherwise, that the original would be a subject of proof at the trial or hearing; and fails to produce it at the trial or hearing; or (d) the writing, recording, or photograph is not closely related to a controlling issue.

*Rule 1002. Requirement of the Original*

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

*Rule 607*

Any party, including the party that called the witness, may attack the witness's credibility.

*Rule 615. Excluding Witnesses*

At a party's request, the court must order witnesses excluded so that they cannot hear other witnesses' testimony. Or the court may do so on its own. But this rule does not authorize excluding: (a) a party who is a natural person; (b) an officer or employee of a party that is not a natural person, after being designated as the party's representative by its attorney; (c) a person whose presence a party shows to be essential to presenting the party's claim or defense; or (d) a person authorized by statute to be present.

*Advocate-Witness Rule*

Bars attorneys from appearing both as witnesses and attorneys in the same proceeding.

*Irrebuttable presumptions*

Cannot be rebutted

*Impeachment by specific contradiction*

Consist of demonstrating that some particular part of what a witness has testified to is false, and then suggesting that this gives the jury reason to disregard the remainder of the testimony.

Jury Nullification

Even if a jury is told to follow the law, they may not find the law credible, justified, or unfair and decide contrary to what the law calls for. Do jurors have the right to do this? NO. Do they have the power to do this? Yes. If they had the right, the Judge would tell them they can disregard the law.

*Rule 601. Competency to Testify in General*

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

Rule 401 - test for relevant evidence

Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.

*Rule 406. Habit; Routine Practice*

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

*Rule 411. Liability Insurance*

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

*Lay Opinion*

Generally lay witnesses testify about the *facts* (what they felt, heard, tasted, smelled, saw).

*Past Recollection Recorded*

Having no present recollection even with the aid of the writing, he may use it merely as a record of his past knowledge.

Larson v. Klapprodt (S.D 1975) *Facts*: ∆ alleged that plaintiff had slandered him in telling certain persons that he bother drank in excess and was sexually promiscuous.

Holding: Affirmed; Reasoning: Since damage to reputation was at least in part of Klapprodt's claim, evidence of his reputation or past misdeeds was admissible both in mitigating damages. Notes: Truth is always a defense with slander. Character is an issue here, so it can be introduced to determine damages.

United States v. Evans (7th Cir. 1997) *Facts*: Jesse Evans (defendant), a Chicago alderman, was interviewed by the Federal Bureau of Investigation in connection with alleged corruption. Evans was contacted by his friend, attorney John Holden, about the interviews. Holden set up a meeting between Evans and attorney James Koch to discuss Evans's situation and Koch's possible representation of Evans. Holden also attended the meeting. Evans was charged with racketeering and related crimes. The prosecution filed a motion in limine, seeking to introduce Koch's testimony regarding the conversation at the meeting. Evans argued that the conversation was subject to the attorney-client privilege. The prosecution argued that Evans had waived the privilege by allowing Holden to attend the meeting. Koch testified that Holden had said he was attending the meeting as a friend, not as Evans's attorney. Koch testified that he had expressed concerns at that point about the confidentiality of their conversation. Evans nonetheless requested that Holden stay for the meeting. Holden testified that the meeting did not occur in the manner in which Koch described, and that Holden had attended the meeting as Evans's attorney. *PH*: The district court granted the prosecution's motion in limine, finding that Koch's testimony about the meeting was more credible than Holden's testimony. Evans appealed.

Holding: Affirmed; Holden was present merely as a friend and potential character witness. This is insufficient to establish the necessity of Holden's presence. Reasoning: The privilege shields only those communications by a client to an attorney that were intended to be confidential. Thus, as a general matter, the attorney-client privilege will not shield from disclosure statements made by a client to his or *her attorney in the presence of a third party who is not an agenda of either the client or attorney*.

In re Grand Jury (3d Cir. 1997) *Facts*: This decision contains two consolidated cases involving a claimed parent-child testimonial privilege. In the Virgin Islands case, a father was subpoenaed to testify against his son (defendant). In the Delaware case, a daughter was subpoenaed to testify against her father (defendant). The subpoenaed parties claimed that they should not have to testify based on a claimed parent-child privilege under Rule 501. *PH*: The district courts in each case found that no parent-child privilege exists. The subpoenaed parties appealed. *Issue*: Whether there is a parent-child privilege?

Holding: Affirmed; If a new privilege is worthy of recognition, the wiser course in our opinion is to leave the adoption of such a privilege to Congress. Reasoning: The fact that a majority of states have rejected the privilege supports the conclusion that "reason and experience" discarded hat the courts should refuse to recognize a privilege rejected by the vast majority of jurisdictions.

United States v. Hernandez (7th Cir. 1997) *Facts*: Hernandez was convicted by a jury pf conspiracy to kidnap and of kidnapping. He argues the DC erred in admitting the evidence of a prior conviction for possession of cocaine and marijuana. *Rule*: 609

Holding: Affirmed; No abuse of discretion Reasoning: The court acted within its discretion when it determined that, given the importance of credibility on the issue in this case, the evidence of the earlier conviction ought to be admitted. Notes: How probative is the past conviction of the ∆'s credibility? Not very. How prejudicial? *Prior convictions for offenses similar to current charges are highly prejudicial*

Baugh v. Cuprum S.A DE C.V. (7th Cir. 2013) *Facts*: John Baugh (plaintiff) was using a ladder manufactured by Cuprum S.A. de C.V. (Cuprum) (defendant) when the ladder collapsed. Baugh suffered a severe brain injury as a result. However, there were no eyewitnesses to the accident. Baugh's wife brought suit against Cuprum on Baugh's behalf. At trial, Baugh's injury rendered him unable to testify. Cuprum sought to bring a replica of the collapsed ladder into the courtroom. Cuprum stated that the replica ladder would only be used for demonstrative purposes to explain expert testimony, and that it would not be substitutive evidence. *PH*: The district court overruled Baugh's objection to Cuprum's use of the replica ladder on the ground that it was only demonstrative evidence. The district judge allowed the replica ladder to be displayed in the courtroom, but it was not admitted into evidence. During deliberations, the jury requested access to the replica ladder. Over Baugh's objection, the judge permitted the replica ladder to be sent to the jury room. The judge instructed the jury that it could fully examine the replica ladder, but not reconstruct the accident. The jury found in favor of Cuprum. Baugh appealed.

Holding: Reverse and Remanded; The error may have been decisive ; we cannot say it was harmless. Demonstrative exhibits that are not admitted into evidence should not go to the jury during deliberation, at least not without consent of all parties. Reasoning: There is value in using the term more narrowly and carefully, as it was used in the C, so that it does not apply to an exhibit that is properly admitted as substantive evidence through the FRE. plaintiff never had an opportunity to plan for mitigate, or rebut the effects of the ladder's introduction into jury deliberations and was prejudiced by his inability to respond to the ladder as substantive evidence.

Carley v. Wheeled Coach (3d. Cir. 1993) *Facts*: The Court took judicial notice that the government conducts numerous crashworthiness test and the well-known roll over problems of vehicles with a high center of gravity.

Holding: Reversed; The facts judicially noticed by the DC are not beyond reasonable dispute and therefore due not satisfy Rule 201(b). Reasoning: The DC could not have determined, beyond a reasonable dispute, that beyond a reasonable doubt, the rollover propensities of vehicles with high centers of gravity and well known. Most people know little if anything about how high centers of gravity cause vehicular accidents.

United States v. Davis (3d Cir. 2013) *Facts*: Terrell Davis (defendant) was found with a kilogram of cocaine in his car's backseat. At trial, the judge allowed the prosecution to introduce, over Davis's objection, Davis's two prior convictions for possessing cocaine. The judge admitted the convictions, not as evidence of Davis's propensity to possess cocaine, but as evidence of Davis's knowledge that the substance in the back of his car was, in fact, cocaine. The prosecution did not demonstrate at trial that the cocaine in Davis's car was similar in appearance, texture, or form to the cocaine that was the subject of Davis's prior possession convictions. Davis was convicted of possessing cocaine with intent to distribute. Davis appealed.

Holding: This Court joins other circuits in declaring that a possession conviction is inadmissible to prove intent to distribute; Reversed; Davis' conviction should not have been before the jury. Reasoning: A prior conviction for possessing drugs by no means suggest that the ∆ intends to distribute them in the future. *Notes*: - The government argues that the ∆ knew that the substance in his back seat was cocaine and was relevant to his intent. - 403 excludes relevant evidence that *substantially* outweighs the probative value. In this case, a prior conviction for possession of drugs by no means suggests that the ∆ intends to distribute them in the future. - Character evidence is a more specific propensity evidence that makes it more probative than general propensity evidence.

*Rule 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.

There are two views of 807: Majority

If a statement is admissible under one of the hearsay exceptions, that exception should be relied on instead of the residual exception. 807 allows evidence to come in if it of the same sort of another exception. The close enough rule.

*Rule 701. Opinion Testimony by Lay Witnesses*

If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is: (a) rationally based on the witness's perception; (b) helpful to clearly understanding the witness's testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

Rule 701. Opinion Testimony by Lay Witnesses

If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is: (a) rationally based on the witness's perception; (b) helpful to clearly understanding the witness's testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

*Rule 803(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.*

*Extrinsic Impeachment*

Impeachment through evidence other than testimony elicited from the witness being impeached.

*Rule 302. Applying State Law to Presumptions in Civil Cases*

In a civil case, state law governs the effect of a presumption regarding a claim or defense for which state law supplies the rule of decision.

*Rule 301. Presumptions in Civil Cases Generally*

In a civil case, unless a federal statute or these rules provide otherwise, the party against whom a presumption is directed has the burden of producing evidence to rebut the presumption. But this rule does not shift the burden of persuasion, which remains on the party who had it originally.

*Mandatory presumptions*

It tells trier of fact that they must find the elemental fact upon proof of the basic fact, at least unless the ∆ has come forward with some evience to rebut the presumed connection between the two facts.

Why is it fair for the witness to read the itemized list from the stand, but not for it to be introduced?

It's a substitute for live testimony. When you testify juries are dependent on their memory opposed to holding a tangible people of evidence.

*Federal Approach*

Litigants were prohibited from using evidence of jury deliberations unless it was offered to show that an "extraneous matter" had influenced the jury

*Present Recollection Revived*

May be used to revive or stimulate a present recollection.

*Hillmon Doctrine*

Mutual Life Ins. Co v. Hillmon U.S (1982) *Facts*: Sallie Hillmon (plaintiff) brought suit against her insurance company, Mutual Life (defendant), to recover on her husband's life insurance policy. However, there was a question of whether a body found in Crooked Creek was actually her husband's or that of another man, named Walters. In attempting to prove that Walters accompanied Sallie's husband on his trip to Crooked Creek and so could have been the body recovered, Mutual Life sought to introduce into evidence two letters from Walters to his sister and fiancé sent before Sallie's husband's trip to Crooked Creek. The letters expressed Walters's intent to accompany Sallie's husband on the trip. The trial court excluded the letters as hearsay. Mutual Life appealed. *Issue*: Whether letters written by Walters in March which were offered in evidence by the ∆s, and excluded by the court were admissible.

Problem 3.53: Dan is on trial for possession. A narcotics officer and his dog walked up to Dan and the dog started barking, Dan then ran outside and threw his briefcase in the river. Is any of this testimony barred by the hearsay rule.

No, there is not a confrontation clause issue because the ∆ is the declarant, and you cannot cross examine yourself.

*The Best Evidence Rule*

Only the best evidence available on a particular question was admissible. *Ex*: A situation where a woman was piloting a plane alone and crashed, but before dying she took a photo of her injuries. No one else had independent knowledge of the injuries. Therefore, the photo could be the best evidence.

Michigan v. Bryant

Police found a man shot at a convenient store (about to die) and he told them he was at the ∆'s house and was shot through the door (recognized the ∆'s voice through the door). The police's primary purpose was to solve an ongoing emergency.

*Thayer's View (Bursting Bubble)*:

Presumption shifts burden of production but not burden of persuasion

*Permissive inference*

Reasonable inferences drawn from the facts/evidence. Ex: Res Ipsa Loquitur

Rule 402 - General admissibility of Relevant evidence

Relevant evidence is admissible unless any of the following provides otherwise: • the United States Constitution; • a federal statute; • these rules; or • other rules prescribed by the Supreme Court. Irrelevant evidence is not admissible.

Chapter 2: Relevance

Rule 401 - test for relevant evidence Rule 402 - General admissibility of Relevant evidence Rule 403 - Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time or, Other Reasons

*Former Testimony*

Rule 804 - hearsay which admittedly is not equal in quality to testimony of the declarant is unbailable and if his statement meets a specified standard.

*New Test*

Scientific knowledge is enough if they are supported by good grounds. The requirement that an expert's testimony pertain to "scientific knowledge" establishes a standard of evidentiary reliability.

There are two views of 807.: Minority

Specifically covered means, it fits another rule and comes in. Everything else can fall under 807. The near miss rule.

*Rule 501. Privilege in General*

The common law — as interpreted by United States courts in the light of reason and experience — governs a claim of privilege unless any of the following provides otherwise: • the United States Constitution; • a federal statute; or • rules prescribed by the Supreme Court. But in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision.

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

*Rule 403* - Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time or, Other Reasons

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

*Government Contract Defense*

The government told the manufacturer how to build the product and the user warned the government of the defects. The government may perform the various test on vehicles, but the quantity and nature of those test are not matters of common knowledge, nor are they readily provable through a source whose accuracy cannot be reasonably disputed.

801(d)(2)(D): 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 the relationship while it existed

United States v. Walton (7th Cir. 2000) Reviewing the trial judge's ruling on the admissibility of evidence under the *abuse of discretion standard.*

The trial judge is afforded great deference because of the first-hand exposure to the witnesses, to the evidence as a whole, and because of the judge's familiarity with the case and ability to gauge the evidentiary impact.

*CHARACTER AND HABIT* (Rule 406. Habit; Routine Practice)

This rule is often invoked, but seldom successful

*Rule 705. Disclosing the Facts or Data Underlying an Expert*

Unless the court orders otherwise, an expert may state an opinion — and give the reasons for it — without first testifying to the underlying facts or data. But the expert may be required to disclose those facts or data on cross-examination.

*The Fiduciary Exception*

When a trustee obtained legal advice to guide the administration of the trust, and not for the trustee's own defense in litigation, the beneficiaries were entitled to the production of documents related to that advice.

Rule 407. Subsequent Remedial Measures

When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove: • negligence; • culpable conduct; • a defect in a product or its design; or • a need for a warning or instruction. But the court may admit this evidence for another purpose, such as impeachment or — if disputed — proving ownership, control, or the feasibility of precautionary measures.

*Collateral Matter test*:

Whether the party seeking to introduce it for purposes of contradiction would be entitled to prove it as part of his case? - There is no rule for collateral matters, but it can be tested for relevance (402) and balanced for probative value under 403.

*Forfeiture by Wrongdoing*

a rule permitting the admission of hearsay evidence as a penalty against a defendant who wrongfully made the declarant unavailable; often used in murder cases

*Legislative Facts*

do not specifically relate to the activates of the litigants, but they are universally fixed in every case.

*Iowa Approach*

juror testimony regarding jury deliberations is admissible when used to challenge juror conduct during voir dire.

*Extrinsic Evidence*

offered through other witnesses rather than through cross-examination of the witness his or herself.

Work Product

one side should not benefit from the work (thoughts and impressions, or details) of the opposing party when the work was made in anticipation of litigation. See FRCP 26(B)(3).

Primary Purpose Test

statements are not testimonial when made in the course of police interrogation under circumstances objectively indicting the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. You look at the purpose of the witness *and* the declarant.

*General Acceptance Test* (old test):

sufficiently established to have general acceptance in the field to which is belongs.

*Adjunctive Facts*

the facts of a particular case

Testimony

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 the sense that a person who makes a casual remake to an acquaintance does not.

Test of Relevance

whether an item of evidence will have any value, as determined by logic and experience, in proving the proposition for which it is offered.

*The Common Defense Rule*

∆ was entitled to the protection of the attorney-client privilege, because his statement were made in confidence to an attorney for a co∆ for a common purposes related to both ∆s.