Evidence Lect II

nonhearsay 2. Effect on Listener or Reader HYPO 8C Plaintiff v. Supermarket. Plaintiff alleges she slipped and fell on a broken jar of salsa in aisle 3 and that Supermarket had prior notice of the dangerous condition. Plaintiff's witness takes stand and proposes to testify: "Several minutes before Plaintiff entered aisle 3, I heard another shopper tell Supermarket manager, 'There's a broken jar of salsa on the floor in aisle 3.'" Hearsay? HYPO 8D Sybil is charged with the murder of her husband Basil. To prove motive, the prosecutor seeks to introduce an anonymous note to Sybil that was found in her possession at the time of her arrest. The note stated, "Basil is having an affair with Polly." Hearsay?

C. No, b/c not offered for TOMA, rather offered to show the D had NOTICE of a potentially dangerous condition D. No, b.c offered not for TOMA, but to show the EFFECT it has on the listener/MOTIVE

HYPO 9C Niles is prosecuted for the murder of his brother Frazier. Niles and Daphne are a married couple. Niles comes home on the night of Frazier's demise wearing a blood-stained Armani topcoat, which Daphne observed. (1) At trial, the prosecutor calls Daphne to the stand to testify to her observations about Niles's topcoat, but she refuses to testify. The prosecutor seeks to compel her testimony. (2) Assume Daphne is willing to testify against Niles. In addition to the topcoat observation, she seeks to testify to the following: "Niles told me when he got home that he stabbed Frazier." Niles objects. HYPO 9D Assume that Daphne divorces Niles before his case goes to trial. The prosecutor calls her to the stand. (1) Can Daphne be compelled to testify to her observations about Niles's topcoat? (2) Can Niles prevent Daphne from disclosing his admission to her about stabbing Frazier?

C1. Cannot compel the testimony of a CURRENT spouse in a CRIMINAL trial (spouse holds the priv) C2. while D may testify as to her observations, she may NOT testify as to what N said without N's consent D1. Yes, spousal priv only lasts DURING marriage D2. Yes, this survives divorce

THE HEARSAY EXCLUSIONS— CERTAIN PRIOR STATEMENTS OF WITNESSES AND PARTIES -what? -2

Certain out-of-court statements are specifically *excluded from the definition of hearsay*. Thus, even if offered for their truth, they are *admissible nonhearsay*. They are not admissible as a hearsay "exception"; they are *simply not hearsay at all.* 1. Prior Statements of Testifying Witnesses 2. Opposing Party's Statements

IMPEACHMENT METHODS (4) Contradiction

Cross-examiner, through confrontation of witness, may try to obtain admission that she made a mistake or lied about any fact she testified to during direct examination. If the witness admits the mistake or lie, she has been impeached by contradiction. *However, if she sticks to her story, the issue becomes whether extrinsic evidence may be introduced to prove the contradictory fact.* Rule: *Extrinsic evidence is not allowed for the purpose of contradiction if the fact at issue is collateral*. A fact is collateral if it has no significant relevance to the case or to the witness's credibility

RULE 804 HEARSAY EXCEPTIONS: DECLARANT MUST BE UNAVAILABLE - Grounds of Unavailability (5) = DAMPS - 3 kinds

Death or illness Absence from jurisdiction Lack of Memory Privilege Stubborn refusal 1. Former Testimony 2. Statements Against Interest 3. Dying Declarations

IMPEACHMENT METHODS (2) Bias, interest, or motive to misrepresent Must witness be confronted with alleged bias while on the stand? If confrontation requirement is met, may bias be proven by extrinsic evidence?

EXAMPLES Witness is party; friend, relative or employee of party; expert witness being paid by party; person with grudge against a party, etc. 1. Within court's discretion. 2. Yes, court has discretion to permit extrinsic evidence even if witness admits the bias.

5. Business Records (Records of Regularly Conducted Activity) -5 elements -what if it includes a S by an outsider?

Elements: 1. *Records of any type of business or organization* (can be nonprofit) 2. *Made in the regular course of business* (germane to business) 3. *The business regularly keeps such records* 4. *Made at or near the time of the event recorded* 5. *Contents consist of information observed by employees of the business (must have business duty to report)* = * A statement by an outsider is only admissible if it falls within an independent hearsay exception* (otherwise, it's inadmissible hearsay within hearsay)

Bolstering Exception—?

Exception— *prior identification of a person*: Might seem like hearsay (out-of-court statement offered to prove truth of statement), but *prior identification by trial witness is not barred by hearsay rule.* It is labeled as "exclusion" from hearsay, and comes in as substantive evidence. Reliability factors: identification was closer in time to event, and witness on stand can be cross-examined.

HYPO 7G Witness gives favorable testimony for Defendant. On cross-examination, Plaintiff asks Witness whether she assaulted her mail carrier two years ago (no charges were ever brought). Objectionable? HYPO 7H After Witness testifies for Defendant, Plaintiff asks Witness whether she made false statements in an application for food stamps in July 2001 (no charges were ever brought). Objectionable?

G. Yes it's objectionable, b/c this is NOT a prior uncharged act that reflects on truthfulness of the W H. No it's objectionable, b/c this a a prior uncharged act that reflects on the W's character for truthfulness & within the court's discretion to allow

HYPO 8G X is charged with income tax evasion for the year 2000. Prosecutor wants to prove X's income during 2000, and offers into evidence a loan application X submitted to a bank in that year. X objects on the ground that the loan application, which is filled with inflated numbers, was self-serving and unreliable. HYPO 8H Ma v. Life Insurance Co. for non-payment of policy proceeds on the life of Pa. Defense: Suicide. Defendant offers a letter by Ma to her friend in which she wrote, "When I came home from shopping I found Pa dead on the floor with his revolver nearby. I didn't see what happened, but this was no accident. Pa did himself in." Admissible despite Ma's lack of personal knowledge?

G. admissible as opposing party statement H. admissible as opposing party statement

THE HEARSAY EXCLUSIONS— CERTAIN PRIOR STATEMENTS OF WITNESSES AND PARTIES 1. Prior Statements of Testifying Witnesses - general rule? HYPO 8F Prosecution of D for robbery. D takes the stand in his own defense and testifies: "(1) I didn't do it. (2) And I told the cops when they arrested me that I didn't do it." Should (1) and (2) be excluded as hearsay?

General rule: *A witness's own prior statement, if offered to prove the truth of the matter asserted in the statement, is hearsay and is inadmissible unless an exception applies.* = 1. is fine, not hearsay b/c S made in court = 2. hearsay, out of court and offered for TOMA

HYPO 7I Same cross-examination (in federal court). Witness vehemently denies making false statements in the application for food stamps. May Plaintiff thereafter call a welfare agent to prove that Witness made the false statements? HYPO 7J Federal prosecution of Dieter. Hans testifies for Dieter. On cross-examination, Hans is asked whether he was arrested three years ago for passing counterfeit money. Objectionable? HYPO 7K Prosecution of Donald. Winston testifies for the prosecution. On cross-examination, Winston is asked whether he was arrested a month ago for selling marijuana and is awaiting trial on those charges. Permitted?

I. No, no extrinsic Evid is allowed to prove a prior uncharged act that reflects on the W's character for truthfulness J. Yes, object because it was couched in terms of "ARRESTED" - just ask about the FACTS = "you passed a phony bill ...." *don't insert ARREST, CHARGED, or INDICTED* K. permissible because the arrest was mentioned in regard to the pending charge with goes to the W's BIAS and MOTIVE to lie to help the State

HYPO 8I Charlie the truck driver smashed into Pam's house while on a run for Acme Trucking, his employer. Charlie descended from the cab and calmly told Pam, "Sorry about wrecking your home. I guess I took my eyes off the road. I was reaching down to get a beer and a joint." In Pam v. Acme, is Charlie's statement admissible against Acme? HYPO 8J Betty v. Acme Trucking for sex discrimination in failing to hire her. She offers the statement of Charlie, an Acme truck driver, who told her over drinks one night, "I know the Acme personnel office has a policy against hiring women no matter how qualified they are." Charlie's statement is inadmissible because: (1) Charlie was not on the job when he was speaking to Betty. (2) Charlie's statement did not concern a matter within the scope of his employment.

I. Yes, b/c made by C, an employee of A at the time the S was made AND within the scope of his employment 2 is correct = there is no "on the job" req here

PRIVILEGES Federal Procedure Issue on Multistate Exam (2 scenarios)

If bar examiners specifically indicate the action is pending in *federal court*, apply the following procedural rules: 1. *In federal-court action arising under federal substantive law* (all civil cases arising under Constitution or federal statutes, and all criminal cases), *privileges are governed by federal common law*. For the most part, these are the basic rules on privileges as covered in lecture. 2. *In federal-court action based on diversity jurisdiction,* where state substantive law applies to parties' claims and defenses (Erie situation), the *federal court must apply privilege law of the state whose substantive law is applicable.* Note: In *diversity actions, federal courts also apply state law on competency* (e.g., Dead Man's Statutes), *burdens of proof, and presumptions.* Aside from these exceptions (privileges, competency, burdens of proof, presumptions), FRE apply in all federal-court actions, including diversity cases.

PRIVILEGES RELATED TO MARRIAGE 2. Confidential Communications between Spouses

In *any type of case, a spouse is not required, and is not allowed in the absence of consent by the other spouse, to disclose a confidential communication made by one to the other DURING the marriage* - privilege survives divorce! Both spouses hold this privilege.

PROCEDURAL ISSUES 2. JUDICIAL NOTICE - Conclusiveness of a Fact that is Judicially Noticed (Crim vs. Civil cases)

In a *civil case, the court must instruct the jury to accept the judicially noticed fact as conclusive.* In a *criminal case, the court must instruct the jury that it may (but is not required to) accept the judicially noticed fact* as conclusive.

HYPO 10A Seeking to introduce former testimony by a lab technician against a defendant in a retrial, the prosecution offers the judge a note from a doctor saying the technician is too sick to travel (and thus "unavailable" to testify). Who decides admissibility? May whoever gets to decide admissibility consider the note from the doctor?

Judges decides admissibility - & Judge may consider INADMISSIBLE evidence too when making a determination like ADMISSIBILITY OF EVID or COMPETENCY OF A W, but not if determining if there is a PRIV

HYPO 8K Bus accident. Passengers A and B were seriously injured. A sued Bus Co., alleging negligence by bus driver. At trial, Witness testified for A that bus driver was intoxicated at time of accident. Thereafter, Witness died. B now sues Bus Co. and seeks to admit a transcript of Witness's former testimony. HYPO 8L Same bus accident. At grand jury, Witness testified that bus driver was intoxicated at time of accident. Thereafter, Witness died. Bus driver is prosecuted for DWI. Prosecutor seeks to admit a transcript of Witness's grand jury testimony.

K. Admissible = D is unavailable AND testified in a prior proceedings where Bus had opp to cross D on the SAME issue L. NOT admissible = b/c there was no prior opp for Bus to cross the W b/c in a grand jury

HYPO 8M Plaintiff v. Acme Trucking, based on Charlie the truck driver's negligent driving. Charlie was fired immediately after the accident. Two weeks later, Charlie told Plaintiff's insurance adjuster that he had been drunk while driving. At trial, Charlie refused to testify on the ground of self-incrimination. The insurance adjuster may properly testify to Charlie's statement as evidence against Acme because the statement is: (1) A vicarious admission of an opposing party. or (2) A statement against interest HYPO 8N Prosecution of Doppler for arson of Town Hall. Doppler calls Waldo to testify that while sitting in a bar, Waldo heard Stranger say, "I'm the guy who torched Town Hall, but I'm glad they think it's Doppler. Just to be safe, I'm leaving town tomorrow." Doppler's attorney demonstrates that Stranger has not been located despite a diligent search. HYPO 8O Elementary school principal sues Newspaper for libel for article accusing him of having sex with PTA mothers. To prove defense of truth, Newspaper calls Reporter to testify that Mothers A, B, and C (all of whom are alive and well and live nearby) told him they had sex with the principal. Admissible as a statement against interest?

M. (2) b/c C was fired and not an employee when the statement was made & thereafter cannot be a vicarious OPS & qualifies as a SAI b/c he's unavailable (priv) and was against his $ and penal interest when he said it N. this is a criminal case, so there would need to be CORROBORATION for it to come in (but otherwise is an unavailable W and made against penal interest) O. those statements were not against the moms' interests AND they're available

Impeachment Via Criminal Conviction Method of proof: (2) Effect of pardon: ?

Method of proof: (1) *As witness to admit prior conviction,* OR (2) *introduce record of conviction (extrinsic).* *Not required to confront witness prior to introduction of record of conviction.* Effect of pardon: Conviction is not admissible if the conviction was subject to a pardon, annulment, or other equivalent procedure, *and*: = The *pardon was based on a finding of rehabilitation and witness has NOT been convicted of a subsequent felony,* OR = The *pardon was based on a finding of innocence* (irrespective of any subsequent convictions).

IMPEACHMENT OF HEARSAY DECLARANT

Opponent may use any of the impeachment methods to attack the credibility of a hearsay declarant -ANY declarant's whose hearsay is admitted has credibility at issue and therefore can be impeached - present or not

HYPO 8P Prosecution of Dagger Dan for the murder of Victor Victim. A passerby found Victor lying in the gutter in a pool of blood with a knife in his stomach. Victor told the passerby, "It's not looking too good for me. Dagger Dan did it, and I'm going to get him for this." Victor died an hour later. May the passerby testify to Victor's statement as a dying declaration? HYPO 8Q Prosecution of Dillinger for bank robbery. At the scene, a bank officer spoke with wounded Teller Tim, who gasped, "I'm a dead man. Get me a priest. Dillinger shot me as he made his getaway." Tim then lapsed into a coma from which he has not emerged. May Ness testify to Tim's statement as a dying declaration? HYPO 8R Same event except civil action against Dillinger for Tim's personal injury damages. Tim is still in a coma. May Ness testify to Tim's statement as a dying declaration?

P. NOT a Dying Dec = b/c VV not in fear of imminent death b/c he said "i'll get him for this" Q. NOT a Dying Dec = b/c this is a prosecution for a BANK ROBBERY, not homicide R. Yes, as a dying dec = unavailable + made while in fear of imminent death + made concerning the cause of death + civil case

Impeaching Own Witness

Permitted, without limitation.

PHYSICIAN-PATIENT PRIVILEGE -2 elements -also applies to? -federal distinction?

Privilege applies to: - *Confidential communication or information acquired by physician from patient* - *For purpose of diagnosis or treatment of medical condition* *Also applicable to psychotherapists* (M.D. or other professional certified to diagnose or treat mental/emotional illness). Federal Distinction = *In federal-court actions based solely on federal law, privilege exists for psychotherapists, but not for usual physician-patient confidences* (e.g., gallbladder treatment).

Attorney-Client Privilege -4 elements to apply

Privilege applies to: 1. Confidential communications 2. Between attorney and client (or representative of either) 3. Made during professional, legal consultation 4. Unless privilege is waived or an exception is applicable

Statements to Law Enforcement—Determine Primary Purpose - is it testimonial? Forensic Analysis Reports?

Providing information to aid police in ongoing emergency = nontestimonial. Providing information to help police gather information for eventual prosecution = *testimonial.* = *Report that has the effect of accusing a targeted person of criminal conduct (e.g., blood alcohol results) is testimonial. If analyst who drafted the report is unavailable to testify, there may be a Confrontation violation.*

NOT HEARSAY—NOT OFFERED FOR TRUTH OF THE MATTER ASSERTED -if so - what changes?

Some out-of-court statements may look like hearsay at first glance, but are *NOT hearsay if they are not offered to prove the truth of the matter asserted in the statement. *An out-of-court statement may be relevant to some issue simply because it was spoken (or written). *If offered for some other purpose, credibility of the declarant is irrelevant. * On the issue of whether the *statement was spoken, the witness on the stand can be cross-examined;* or *if the statement was in writing, it can be examined as an exhibit.*

PROCEDURAL ISSUES 4. LIMITED ADMISSIBILITY

The doctrine of limited admissibility allows the court to admit evidence to be used for one purpose but not another (e.g., for impeachment but not as substantive evidence), or against one party but not another. *If the court admits evidence for a limited purpose, the court MUST, ON timely request, issue a limiting instruction.*

PROCEDURAL ISSUES 1. PRELIMINARY ISSUES OF ADMISSIBILITY -Judges decides (3)

The judge decides: 1. Is a witness competent to testify 2. Existence of privilege 3. Admissibility of evidence In doing so, *the judge is not bound by the rules of evidence*—except privilege.

HYPO 8U Probate of Wanda's Will, in which she left all her money to the local pet cemetery. Wanda's family challenges the will on the ground that Wanda was insane when she executed it. Pet cemetery offers testimony that a few days before execution of the will, Wanda said to her friend, "I do not love my family anymore." Admissible over hearsay objection? HYPO 8V Susan has died and her family sues Life Insurance Co. for nonpayment of the policy proceeds. Defense: Suicide. Life Insurance Co. seeks to introduce a note found in Susan's apartment (in Susan's handwriting) in which she said, "I'm going to end it all next week."

U. Present statement of mind = notice the PRESENT TENSE V. statement of future intent

The major nonhearsay purposes are as follows (3)

Verbal Act (Legally Operative Facts) Effect on Listener or Reader Circumstantial Evidence of Declarant's State of Mind

HYPO 8W Prosecution of Raymond for murder of Vic. Before going out Monday night, Vic told wife, "I'm meeting Raymond tonight at the bowling alley." Vic's dead body was found Tuesday morning outside the bowling alley. HYPO 8X Plaintiff, whose arm was broken in accident with Defendant, sues for damages for pain and suffering. Plaintiff may, of course, testify about the pain she experienced. But Plaintiff also calls Neighbor to testify, (1) "I was with Plaintiff last July when she said, 'I'm feeling a lot of pain in my arm' and again in December when she said (2) 'I sure did feel a lot of pain in my arm last July.'" Admissible over hearsay objections?

W. statement of future intent X. 1. statement of PRESENT physical condition 2. not admissible = b/c not present

REHABILITATION 2. Prior Consistent Statements When allowed: ? Bonus?

When allowed: 1. *Witness is charged with fabrication based on a recent motive or improper influence, AND the statement was made before the motive arose*; OR 2. *The statement rehabilitates a witness impeached on another ground*, such as prior inconsistent statement or faulty memory. Bonus: *Prior consistent statements admissible to rehabilitate are also admissible as substantive evidence; i.e., for truth of matter asserted* (hearsay exclusion).

REHABILITATION 1. Showing Witness's Good Character for Truthfulness When allowed: ? How: ?

When allowed: *If Opponent used methods of attacking witness's general bad character* (bad reputation or opinion; convictions; bad acts). How: *Character witness provides reputation or opinion testimony about witness's good character for truthfulness.*

May an unavailable declarant whose hearsay was admitted be impeached?

Yes! Under Federal Rule 806, the credibility of an unavailable declarant *may be attacked by evidence that would be admissible if the declarant had testified as a witness* There is no requirement that a declarant must be present at trial to be impeached. *If the declarant is impeached with evidence of her prior inconsistent statement, the foundational requirement that she must explain or deny her statement does not apply.* Furthermore, where the declarant's credibility is impeached, it *may also be rehabilitated*

HYPO 7L Shooter is on trial for murder of Victim. In hospital bed, Victim told the nurse, "I'm feeling pretty good considering Billy Ray tried to kill me." The next day, Victim told a visitor, "I know I'm about to die. Shooter's the one who shot me." Prosecution introduces Victim's statement to the visitor as a dying declaration. Should Shooter be allowed to introduce Victim's statement to the nurse?

Yes, admissible to impeach (not as a dying dec)

HYPO 8Z Personal injury action. Plaintiff offers hospital records, which include statement of surgeon, "Surgery to repair broken arm partly successful. Neurologist reports surgery could not repair severed nerve." Admissible? HYPO 8AA Same case. Plaintiff offers another part of hospital records, which state "Patient admitted with broken arm. Patient reports he was hit by car driven by someone with a suspended license." Admissible?

Z. Yes as a BR = all employee statements are encompassed and covered AA. record is a BR, BUT the P's statement would require an independent hearsay exception

Attorney-Client Privilege - "Attorney" - "Client"

"Attorney" = *Member of the bar or person that client reasonably believes is member of the bar.* - *Representative of the attorney*: Any agent reasonably necessary to facilitate the provision of legal services (e.g., accountant working with attorney to "translate" client's financial matters). + paralegals and legal secretaries "Client" = *Includes person seeking to become client* (e.g., privilege attaches at outset of formal consultation with attorney even if client does not retain attorney). - *Representative of the client: Agent reasonably necessary to facilitate the provision of legal services* (e.g., *for corporate client,* any employee who communicates with corporation's attorney to enable attorney to provide legal services to the corporation).

Attorney-Client Privilege - "Confidential Communications" - Joint Client Rule - Communication

"Confidential Communications" = *CLIENT must INTEND confidentiality* (e.g., *no privilege if client knows that third party is listening in; or if client asks attorney to disclose the communication to a third party).* Joint client rule: *If two or more clients with common interest consult the same attorney, their communications with counsel concerning the common interest are privileged as to third parties*. BUT if the joint clients later have dispute with each other concerning the common interest, privilege does not apply as between them. "Communication": *Privilege does not apply to underlying information, pre-existing documents, or physical evidence.*

IMPEACHMENT METHODS (7)

(1) Prior inconsistent statements (2) Bias, interest, or motive to misrepresent (3) Sensory deficiencies (4) Contradiction Methods showing general bad character for truthfulness: (5) Bad reputation or opinion about witness's character for truthfulness (6) Criminal convictions (7) Bad acts (without conviction) that reflect adversely on witness's character for truthfulness

A defendant is being sued by his insurance company for filing a false claim. The insurance company seeks recovery of payment made to the defendant for the alleged theft of his car. At trial, the insurance company seeks to have the defendant's ex-wife testify that, while they were married, the defendant told her that he had really given the car to a friend, and cautioned her not to tell anyone else about it. The defendant objects on the ground of privilege. Is the ex-wife's testimony admissible over the defendant's objection? (A) Yes, because the defendant and the ex-wife are no longer married. (B) Yes, because the privilege applies only in criminal cases. (C) No, because the communication was made in confidence and took place during the marriage. (D) No, because a spouse may not be called as a witness to testify against her spouse.

(C) No, because the communication was made in confidence and took place during the marriage.

At the defendant's trial for burglary, he calls a witness who testifies that she was in her backyard sunbathing at the time of the charged burglary and saw the assailant run from the victim's house. She further testifies that the person who ran from the victim's house was not the defendant. On cross-examination by the prosecutor, to which of the following questions would a defense objection most likely be sustained? (A) "Weren't you convicted of misdemeanor forgery eight years ago?" (B) "Weren't you under the influence of hallucinogenic drugs at the time you were sunbathing?" (C) "Wasn't the defendant your college roommate?" (D) "Didn't your most recent employer fire you for embezzlement?"

(D) "Didn't your most recent employer fire you for embezzlement?" Why? because couching it in "you employer fired you for_______" makes this extrinsic evid, which is not allowed NOT: a. fine b/c a misdemeanor about dishonesty within 10 yrs b. goes to sensory deprivation/faulty c. bias

Attorney-Client Privilege - Professional Legal Consultation - Waiver (3 notes)

*Professional Legal Consultation* Primary purpose of communication must be to obtain or render legal services, NOT business or social advice. *Waiver* = *Client is holder of privilege*, so client alone has power to waive by disclosure of communication to third party. *Privilege continues after attorney-client relationship ends and even after death of client.* Client's estate representative has power to waive privilege after client's death.

6. Public Records - 3 kinds

*Records of a public office or agency setting forth:* 1. The activities of the office or agency. EXAMPLE Payroll records. 2. Matters observed pursuant to a duty imposed by law. EXAMPLE Weather Bureau records of temperature. 3. Findings of fact or opinion resulting from an investigation authorized by law. EXAMPLE FAA report on cause of plane crash. *Exception: Police reports and investigatory findings are not admissible against the defendant in a criminal case.* NOR is the prosecution in such cases allowed to introduce a police report against the defendant under the alternative theory of business records.

IMPEACHMENT METHODS (7) Bad acts (without conviction) that reflect adversely on witness's character for truthfulness

- *Confrontation on cross-examination is the only permissible means. No extrinsic evidence is permitted* - *Cross-examiner must have good-faith basis,* and ability to inquire lies in court's discretion

RULE 803 EXCEPTIONS - 6 TO COVER HERE

- Rule 803 exceptions are sufficiently reliable, and do NOT require unavailability. - "ADMISSIBLE HEARSAY" 1. Excited Utterance 2. Present Sense Impression 3. Then-Existing Mental or Physical Condition (Present State of Mind) 4. Statement for Purposes of Medical Diagnosis or Treatment 5. Business Records (Records of Regularly Conducted Activity) 6. Public Records

IMPEACHMENT METHODS (6) Criminal convictions -Types of Crimes & Courts discretion

1. *Any crime (felony or misdemeanor) involving dishonesty or false statement may be used to impeach*, and the *court has NO DISCRETION* to exclude such convictions. 2. *If a conviction does not involve dishonesty or false statement (SPEAKING UTTERING OR WRITING FALSE WORDS), it must be a felony,* and the *court has discretion to exclude (generally Rule 403 balancing test*—probative value not substantially outweighed by unfair prejudice; *stricter balancing test when witness is criminal defendant—probative value must outweigh unfair prejudice)* 3. *Must not be too remote: Generally the conviction or release from prison (whichever is later) must be within 10 years of the witness's testimony.* Court can override this if probative value substantially outweighs prejudicial effect (rare).

A statement may be attributable to an opposing party without being made by that party in an individual capacity. A party can be held *vicariously liable for statements made by people with the following relationships to the party:* (4)

1. *Authorized Spokesperson*: The statement of a person authorized by a party to speak on its behalf (e.g., statement by company's press agent) can be admitted against the party. 2.*Principal-Agent*: Statements by an agent concerning any matter within the scope of her agency or employment, made during the existence of the agency or employment relationship, are admissible against the principal. Therefore, if a truck driver-employee has an accident while on the job and admits that she was negligent, this statement may be introduced against her employer even if she was not authorized to speak for the employer. 3. *Partners:* After a partnership is shown to exist, a statement of one partner, relating to matters within the scope of the partnership business, is binding upon her co-partners since, as to such matters, each partner is deemed the agent of the others. 4. *Co-Conspirators:* The Supreme Court has held that statements of one conspirator, made to a third party in furtherance of a conspiracy to commit a crime or a civil wrong, at a time when the declarant was participating in the conspiracy, are admissible against co-conspirators. In contrast, *statements of a party are not receivable against her co-plaintiffs or co-defendants merely because they happen to be joined as parties to the action.*

2 Exceptions Applicable to BOTH Privileges

1. *Communications or acts in furtherance of future crime or fraud* 2. *Communications or acts destructive of family unit* (e.g., spousal or child abuse)

Attorney-Client Privilege 3 exceptions

1. *Future crime or fraud* EXAMPLE Client tells attorney, "Help me disguise the bribes I made so that they look like legitimate business expenses." 2. *Client puts legal advice in issue* EXAMPLE In tax fraud prosecution, defendant defends on ground that she relied on advice of her attorney in reporting income. 3. *Attorney-client dispute* EXAMPLE Attorney sues client for unpaid fee, or client sues attorney for legal malpractice.

HEARSAY Two-Part Definition Hearsay Rule Hearsay Within Hearsay

1. *Out-of-court statement* of a *person* (oral or written), AND 2. *Offered to prove the truth of the matter asserted in the statement.* = *Hearsay is inadmissible unless an exception applies.* =Multiple hearsay is admissible if each statement meets some hearsay exception. EXAMPLES OF HEARSAY WITHIN HEARSAY (1) Witness testifies, "After the accident,* John told me* that *Mary said she was fine.*" (2) Plaintiff offers a *police officer's accident report* that contains the following notation: *"Eyewitness reports that the truck driver was weaving between lanes before impact."*

Proving business records foundation: (2 ways)

1. Call sponsoring witness to testify to the elements of business records hearsay exception; witness need not be author of report—can be records custodian or any other knowledgeable person within the business; OR 2. Affidavit or unsworn declaration attesting to elements of business records hearsay exception.

For each method, consider: (2 procedural considerations under each)

1. Can impeaching fact be *proven by extrinsic evidence* (documentary evidence or testimony from other witnesses), or is party bound by witness's answers to impeaching questions? 2. *Assuming extrinsic evidence is permissible, must witness first be confronted with impeaching fact as a prerequisite* to introduction of extrinsic evidence?

(1) Prior inconsistent statements Confrontation/Extrinsic Evidence Issue? Exception to confrontation requirement: ?

1. Confrontation timing is flexible. Not required to immediately confront witness. *But after proof by extrinsic evidence, witness must be given an opportunity at some point to return to stand to explain or deny the prior inconsistent statement*, but not necessarily before proof with extrinsic evidence. 2. *No confrontation required and no opportunity to explain need be given if witness is opposing party.* = an opposing party in THAT CASE

For each statement, write down the appropriate hearsay exception or exclusion. (1) Prosecution of Dean for the attempted murder of Vince. An emergency responder will testify that when he arrived at the scene 20 minutes after Vince was shot, Vince cried out: "I'm not going to make it! Dean was the one who did this to me!" Vince is currently in a coma. (2) Battery lawsuit. The plaintiff's doctor will testify that while questioning the plaintiff about his headache symptoms, the plaintiff said, "I was punched in the eye one month ago." (3) Burglary prosecution. A friend of the victim's next-door neighbor will testify that while talking on the phone with the neighbor on the day of the burglary, the neighbor said, "A short man in a red T-shirt is walking out of the house next door and he's holding three laptop computers. It must be a repairman." (4) Pauline, Tom, and Dave were involved in a minor three-car accident. Tom died of unrelated causes a month later. Pauline sues Dave for her injuries. Dave calls an eyewitness to testify that 30 minutes after the accident, while they were all waiting for police to arrive, Tom said, "Sorry, all. I guess I should have kept my eyes on the road." (5) While on his delivery route, a truck driver for a furniture company hits and kills a pedestrian. The pedestrian's estate files a wrongful death lawsuit against the furniture company. The pedestrian's estate calls the truck driver as a witness. The truck driver testifies that he had a green light and the pedestrian suddenly darted into the intersection. To prove that the light was red, the pedestrian's estate calls a police officer to testify that the truck driver told her, "I was in a rush to make my delivery and ran the red light."

1. EU = notice the exclamation points 2. statement made for med treatment/diag 3. PSI 4. statement against interest 5. opposing p statement (vicarious)

HYPO 7C In auto accident case, Plaintiff testifies that she was wearing her seat belt. Defendant does not cross-examine her. During the defense, Defendant calls Joe the Bartender, who testifies that Plaintiff told him, at Joe's bar a week after the accident, that she had NOT been wearing her seat belt. (1) Should Plaintiff's motion to strike be granted on the ground that Plaintiff was not given an immediate opportunity to explain or deny the inconsistency? (2) Is Plaintiff's statement admissible to impeach Plaintiff AND as substantive evidence that she was not wearing her seat belt?

1. No, because (a) the need to allow a W to explain is not IMMEDIATE and (b) since P is an opposing party here, the confrontation req does not apply 2. Yes, as the other hearsay exclusion of an opposing party's statement!

HYPO 7D In an auto accident case, Witness testifies for Plaintiff that, while leaning against a maple tree near the intersection of Yale and Harvard on March 1, he saw that the traffic light was red for Defendant as his car entered the intersection and hit Plaintiff. On cross-examination, Witness is asked (a) "Isn't it a fact that the tree near the intersection of Yale and Harvard is an oak?" and (b) "Isn't it a fact that the traffic light at the intersection of Yale and Harvard was not functioning at all on March 1?" Witness insists that his direct testimony was accurate. (1) During the defense, may Defendant properly prove that the tree at Yale and Harvard is an oak tree? (2) During the defense, may Defendant properly call a police officer to testify that the traffic light at the intersection of Yale and Harvard was not functioning at all on March 1?

1. No, because the point of what kind of tree is COLLATERAL = no sig relevance to the case or the W's credibility 2. Yes, this is NOT collateral = sig to the case/W's cred

HYPO 9A Delbert is sued for his alleged negligence in an auto accident. He tells his attorney what happened and gives her the cell phone with which he was making a call at the time of the accident. Before trial, Delbert is deposed by plaintiff's counsel: (1) Must Delbert respond if asked, "What did you tell your attorney about the accident?" (2) Must Delbert respond if asked, "Describe what you were doing at the time of the accident." (3) If served with a subpoena, must Delbert's attorney produce Delbert's cell phone?

1. No, that's asking for an A-C communication that was confidential 2. Yes, b/c A-C does not protect underlying facts (don't become priv'd just because you may have told your atty) 3. yes, b/c A-C does not protect physical evidence

THE HEARSAY EXCLUSIONS— CERTAIN PRIOR STATEMENTS OF WITNESSES AND PARTIES 1. Prior Statements of Testifying Witnesses However, the following prior statements of a testifying witness are excluded from the definition of hearsay: (3)

1. Witness's *prior statement of identification.* (discussed under bolstering - "I saw the D that night ... and I picked the D out of a lineup 2 weeks afterwards too") 2. Witness's *prior INCONSISTENT statement, IF made under oath AND during a formal trial, hearing, proceeding, or deposition.*(=A testifying witness's prior inconsistent statement made at a deposition is not hearsay because the statement was made under penalty of perjury. Prior inconsistent statements made under oath at a prior trial or proceeding, or in a deposition, are *considered nonhearsay under the Federal Rules as long as the declarant is now testifying and subject to cross-examination* (i.e., willingly responding to questions)) 3. Witness's *prior CONSISTENT statement offered to rehabilitate the witness* (see Impeachment module for admissibility of prior consistent statements).

HYPO 7B Defendant is sued for negligence in a multi-vehicle accident in which he was driving his Suburban. Witness testifies for plaintiff that she saw the Suburban run the stop sign. (1) On cross-examination, may Defendant's counsel seek to establish that a few days after the accident, Witness told the police that the Jeep Cherokee, not the Suburban, ran the stop sign? (2) If Witness admits she made the prior inconsistent statement, may Defendant use the statement as substantive evidence that the Jeep Cherokee, rather than the Suburban, ran the stop sign?

1. Yes as a PIS 2. No, b/c not made under oath in a formal hearing/proceeding/etc. & therefore is hearsay being offered to prove the truth

HYPO 8A Action by the estate of Percy against Damien seeking damages for the pain and suffering Percy experienced in an auto accident caused by Damien. Damien denies liability and also asserts that Percy died instantly in the accident. Witness on the stand proposes to testify that shortly after the accident, Percy said, "Damien's car ran the red light." (1) Hearsay if offered to prove who ran the red light? (2) Hearsay if offered to prove that Percy was alive following the accident?

1. Yes, b/c both an out of court statement made by a person AND then offered to prove truth of the matter a 2. No, b/c while it is a an out of court statement made by a person, NOT offered to prove the TOMA

HYPO 7M Tom v. Nicole. On July 1, pedestrian Tom was struck by a car driven by Nicole. Penelope, a stranger to Tom and Nicole at the time, witnessed the accident and told the police on July 1 that Tom looked sober as he crossed the street. At trial, six months later, Penelope testifies for Tom, "He looked sober as he crossed the street." (1) On cross-examination, Penelope is asked whether she was having memory problems due to a medication she was taking, to which she answers "No." On re-direct, may Penelope properly testify that she told the police on July 1 that Tom had looked sober? (2) Assume that on the cross-examination of Penelope, she is asked, "Isn't it a fact that after this accident, you and Tom became close friends and are now living together as lovers?" to which she answers, "Yes." On re-direct, may Penelope properly testify that she told the police on July 1 that Tom had looked sober?

1. Yes, b/c her credibility was attacked on the basis of inability to remember 2. Yes, b/c her credibility was attacked with a charge of motive to fabricate AND the prior consistent s was from BEFORE the motive arose

HYPO 9B Physician examines Patient's lungs in hospital room while visitor is present. (a) Patient tells doctor, "Do you suppose my wheezing is due to the 4 packs of cigarettes I smoke every day?" (b) After visitor leaves, Patient says to doctor, "Know any good lawyers? I haven't paid my income taxes in 3 years." (1) In state court action in which condition of patient's lungs is an issue, could doctor be compelled to disclose statement (a)? (2) In prosecution for income tax evasion, could doctor be compelled to disclose statement (b)?

1. Yes, b/c the presence of the visitor destroyed any confidentiality 2. yes, b/c not related to medical treatment

HYPO 7E Larry testifies for the prosecution that he saw Defendant commit the crime. During the defense: Defendant calls Rev. Al to testify that Larry has a lousy reputation for truthfulness among members of Rev. Al's congregation, and in Rev. Al's opinion, Larry is not a truthful person. (1) Admissible to suggest Larry's testimony is false? (2) May Rev. Al follow up his opinion as follows: "Let me tell you how I reached my opinion of Larry. During the past year, he lied to me on six separate occasions."

1. Yes, because Larry is a testifying W 2. No, no specific acts allowed here

*Is it hearsay?* (Don't worry about whether it falls within a hearsay exception.) (1) On the issue of whether Oliver was the murderer, a police officer testifies that when he asked the victim whether Oliver was the one who hurt him, the dying victim nodded his head. (2) On the issue of whether landlord knew about a defective stair, a witness testifies that he heard the property manager say to the landlord, "The stair is broken." (3) In a breach of contract action, the written, executed contract is offered into evidence. (4) During her case-in-chief, on the issue of her pain and suffering, a plaintiff testifies, "After the accident, I told the emergency room doctor that my pain level was a 10 out of 10." (5) On the issue of when the victim was murdered, a neighbor testifies that when she heard the victim stabbed outside her window, she looked at her clock and it read "5:04 pm." (6) An eyewitness testifies that the defendant ran a red light and caused the accident. To prove the light was green at the time of the accident, the defense wants to call an insurance investigator to testify that the eyewitness told him that the defendant had a green light and couldn't avoid the plaintiff.

1. hearsay = out of court S (*statements can be nonverbal so long as they assert a fact/intent to communicate a fact*) + offered for TOMA 2. NOT hearsay = out of court S BUT not offered for TOMA, offered for NOTICE and relevant apart from its truth 3. NOT hearsay = K is legally operative and relevant apart from its truth 4. hearsay = out of court S + offered for TOMA 5. NOT hearsay = not made by a PERSON 6. hearsay = out of court S + offered for TOMA

HYPO 7F Defendant is prosecuted for arson. At trial, Defendant testifies on his own behalf, urging that the fire was an accident. On cross-examination, may the prosecutor properly ask Defendant: (1) Whether he was convicted eight years ago for the misdemeanor of income tax fraud? (2) Whether he was released from prison nine years ago for his misdemeanor conviction for possession of marijuana? (3) Whether he was convicted two years ago for the misdemeanor of shoplifting? (4) Whether he was convicted five years ago for felony assault?

1. misdemeanor, but a crime of dishonesty, and within 10 years = YES 2. misdemeanor BUT NOT a crime of dishonesty = NO 3. misdemeanor and NOT a crime of dishonesty for the bar = NO 4. felony, not a crime of dishonesty, so court will conduct a REVERSE 403 balancing test (PV must outweigh the undue prejudice)

HYPO 7A (1) Plaintiff calls Witness 1 to the stand. Witness 1 testifies that she saw Defendant's car run the red light. Defense counsel states that she has no questions for the witness. After Witness 1 steps down, Plaintiff calls Witness 2 who testifies, "Witness 1 has a good reputation for truthfulness." Objectionable? (2) Variation: Witness 1, after testifying that she saw Defendant's car run the red light, then testified, "I told everyone at work the next day that I had seen Defendant run the red light."

1. yes b/c this is bolstering 2. there's an exception for a prior ID!

THE HEARSAY EXCLUSIONS— CERTAIN PRIOR STATEMENTS OF WITNESSES AND PARTIES 2. Opposing Party's Statements - 3 kinds

= *Any statement made by a party (plaintiff or defendant) is admissible against that party.* 1. made by the opposing party themself 2. *Adoptive statements:* Party may adopt the statement of someone else (for example, by remaining silent in the face of an accusation that a reasonable person would deny). 3. *Vicarious opposing party statements*: Certain statements by some other person are admissible against a party because of the relationship between them. These include: - Statement *by agent/employee admissible against principal/employer if statement concerns matter within scope of agency/employment AND is made during the agency/employment.* AND / OR - Statement of *co-conspirator admissible against party if made during and in furtherance of the conspiracy.*

3. Then-Existing Mental or Physical Condition (Present State of Mind) - 4 notes about it

= *Contemporaneous statement concerning declarant's own present state of mind, feelings, emotions, or physical condition.* *Includes declarations of intent*: "State of mind" includes declarant's intent to do something in the FUTURE, including the intent to engage in conduct with another person. *Includes PRESENT physical condition:* Statement made to anyone about declarant's current physical condition. NOTE = *Statements of Memory or Belief Generally Not Admissible* = The hearsay statement is not admissible if it expresses a memory or belief of the declarant, and the statement is offered for the purpose of proving the truth of the fact remembered or believed. EXAMPLE Declarant's out-of-court statement, "I think I left the keys in the car," may not be introduced for the purpose of proving that he left the keys in the car. *Statements of memory or belief are admissible, however, to prove facts remembered or believed concerning the validity or terms of declarant's will*

2. Present Sense Impression HYPO 8T Pedestrian alleges that Dora is the hit-and-run driver who struck him. Pedestrian testifies, "I saw a silver Acura speeding away. A couple of seconds later, some unknown bystander told me he saw the Acura and its license plate number was '007.'"

= *Description of an event made while the event is occurring or immediately thereafter.* = yes, as a PSI (made immediately after and describing what observed)

PRIVILEGES RELATED TO MARRIAGE 1. Spousal Immunity

= *In criminal cases only, a CURRENT spouse cannot be compelled to testify against the defendant-spouse.* *Witness-spouse holds privilege*: Witness-spouse, not defendant, is holder of privilege (i.e., witness-spouse may voluntarily testify against the defendant spouse if she chooses). = this does NOT survive divorce = Rationale: To protect harmony of existing marriage at time of trial. The privilege lasts only during the marriage and terminates upon divorce or annulment. If a marriage exists, the privilege *can be asserted even as to matters that took place before the marriage.*

When Admissible as Substantive Evidence - ?

= *Prior inconsistent statements made under oath and as part of a formal hearing, proceeding, trial, or deposition* may be admitted BOTH for impeachment and as substantive evidence—to prove the truth of the matter asserted in the prior inconsistent statement. EXAMPLE Witness in 7B made her prior inconsistent statement about the Jeep Cherokee during a pretrial deposition in which she gave sworn testimony. This would be admissible to prove that the Jeep Cherokee, in fact, ran the stop sign.

PHYSICIAN-PATIENT PRIVILEGE - General Exception

= *Privilege does not apply if patient expressly or impliedly puts physical or mental condition in issue.* EXAMPLE Patient is plaintiff suing for damages for personal injury, or defendant asserts insanity defense.

Hearsay and the Confrontation Clause

= *Regardless of whether a hearsay exception is satisfied, the Sixth Amendment right of confrontation prohibits the use of "testimonial" hearsay statements against a criminal defendant if the declarant is unavailable AND the defendant has had no opportunity for cross-examination*. *Defining "Testimonial":* Includes *sworn testimony* (e.g., grand jury, prior trial, preliminary hearing). *But also includes statements to police officers (sworn or unsworn) and certain documents,* as discussed below.

1. Excited Utterance HYPO 8S Ernie observes a horrific head-on auto collision and excitedly tells a cop, who arrives 10 minutes later, "Oh my God, Officer! Both of those cars were going 80 miles an hour!" May the cop properly testify to Ernie's statement in subsequent litigation arising out of the accident?

= *Statement concerning a startling event AND made while declarant is still under the stress of excitement caused by the event.* = yes, as an EU (made about startling event they observed, immediately after while still under stress of that event)

4. Statement for Purposes of Medical Diagnosis or Treatment HYPO 8Y Plaintiff v. Defendant for pain-and-suffering damages based on alleged accident at Defendant's store. At trial, Plaintiff calls one of her treating physicians to testify, "When Plaintiff came to see me for treatment a year after the accident, she said, (1) 'The pain in my arm is killing me. (2) I've been losing sleep at night for the past six months because of the pain in my arm. (3) This all started when I fell down the stairway—(4) the one with no treads at Defendant's store.'" Admissible over hearsay objections?

= *Statement made to ANYONE (but usually involves medical personnel) concerning past OR present symptoms OR general cause of condition FOR the purpose of treatment or diagnosis.* 1. 2. 3. all of these 3 are S's made for purpose of med diagnosis or T (1 and 2 are symptoms and 3 is cause) 4. goes beyond cause and is now pointing the finger *Note:* Statements (1), (2), and (3) would also be admissible if Plaintiff was speaking to a physician who was retained solely for the purpose of testifying as an expert witness. *"Medical diagnosis" includes diagnosis for the purpose of giving an expert opinion.*

PROCEDURAL ISSUES 3. PRESUMPTIONS -what? - Destroying Presumptions in Criminal Cases vs. in a civil case?

= A *presumption is a rule that requires a particular inference to be drawn from an ascertained set of facts.* EXAMPLE A person who has been missing for seven years is presumed dead. *Destroying Presumptions in Civil Cases* A presumption is *destroyed when the adversary produces evidence to rebut the presumption.* *Destroying Presumptions in Criminal Cases* A *defendant in a criminal case does NOT need to produce evidence to rebut a presumption* (i.e., there are no mandatory presumptions against criminal defendants).

IMPEACHMENT METHODS (1) Prior inconsistent statements

= Any witness may be impeached by showing that on some prior occasion, she made a material statement (orally or in writing) that is inconsistent with her trial testimony.

IMPEACHMENT METHODS *Methods showing general bad character for truthfulness*: (5) Bad reputation or opinion about witness's character for truthfulness Confrontation required? Extrinsic evidence allowed?

= Call a character witness to testify that target witness has bad reputation for truthfulness, or that character witness has low opinion of target witness's character for truthfulness. Confrontation required? No. Extrinsic evidence allowed? Yes & it is the only way to! (by calling a CW to give rep or opin testimony)

PROCEDURAL ISSUES 2. JUDICIAL NOTICE -what? -when? (2)

= Judicial notice is the *recognition of a fact as true without formal presentation of evidence.* What Facts May Be Judicially Noticed = A court may judicially notice *a fact that is not subject to reasonable dispute because:* 1. *The fact is generally known within the trial court's jurisdiction* (e.g., New York City is located in the State of New York), or 2. *The fact can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned (e.g., October 10, 2017, was a Tuesday).*

nonhearsay 1. Verbal Act (Legally Operative Facts) HYPO 8B Gates sued Bloomberg for breach of an oral contract. Witness takes the stand and proposes to testify as follows: "I heard Bloomberg say to Gates: "'I accept your offer to sell Microsoft.'" Hearsay? Other verbal acts: 7?

= NOT hearsay = acceptance is legally operative words & create a K *Other verbal acts:* -Contract offer or cancellation, -making gift, -bribe, - perjury, - fraud, -defamation, - words accompanying ambiguous acts (e.g., D is charged with theft of X's car; D testifies, "As X handed me the keys, he said I could have the car for the weekend.").

RULE 804 HEARSAY EXCEPTIONS: DECLARANT MUST BE UNAVAILABLE 3. Dying Declarations

= Statement *made under a belief of impending and certain death by a now-unavailable* declarant *concerning the cause or surrounding circumstances of the declarant's death.* = NEED NOT be unavailable due to death Type of case: Criminal: *Homicide only.* *Civil: All types.*

RULE 804 HEARSAY EXCEPTIONS: DECLARANT MUST BE UNAVAILABLE 1. Former Testimony

= The *former testimony of a now-unavailable witness, if given at a former proceeding or in a deposition, is admissible against a party who, on the prior occasion, had an opportunity AND motive to cross-examine or develop the testimony of the witness*. Issue in both proceedings must be essentially the same

IMPEACHMENT 1. Bolstering Own Witness -what? -rule?

= attempt to strengthen a W's cred before it is attacked = In general, not allowed until after witness's credibility has been attacked.

nonhearsay 3. Circumstantial Evidence of Declarant's State of Mind HYPO 8E Homer is prosecuted for murder. Defense: Insanity. Witness for Homer proposes to testify: "Two days before the killing, Homer said, 'I am Elvis Presley. It's good to be back.'" Hearsay?

= not hearsay, b/c not offered for TOMA, offered to show D's statement of mind

RULE 804 HEARSAY EXCEPTIONS: DECLARANT MUST BE UNAVAILABLE 2. Statements Against Interest (3 kinds) -4 ways this is DIFFERENT than an "opposing party's s" -Limitation in Criminal Cases

An unavailable declarant's statement against his: - Pecuniary interest (money) - Proprietary interest (property) - Penal interest (exposure to criminal liability) Distinguished from opposing party statements: - Must be against interest when made. - Any person (not merely party) can make statement against interest. - Personal knowledge is required. - Declarant must be unavailable. = In *criminal cases, statements against penal interest must be corroborated.*

IMPEACHMENT METHODS (3) Sensory deficiencies Confrontation required? Extrinsic evidence allowed?

Anything that could affect witness's perception or memory. EXAMPLES Bad eyesight, bad hearing, intellectual disability, consumption of alcohol or drugs at time of event or while on the witness stand. Confrontation required? No. Extrinsic evidence allowed? Yes.

HYPO 8BB 911 call to the police, caller states, "Dan Smith is here attacking me—please help me!" Caller dies of unrelated heart attack before Dan has opportunity to cross-examine caller. Prosecution seeks to introduce the statement. Dan objects, hearsay, violates 6th amendment right to confront. Result? HYPO 8CC Same call as above, now caller says, "He left, he's driving a blue Lexus, with the license plates, "DOG 4EVR." Caller dies before trial, no chance to cross-examine.

BB. nontestmonial = made in aid to PO of ongoing emergency (and admissible as an EU) CC. testimonial = no emergency, for prosecution/investigation purposes