Evidence Examples 21-42

Straley, trash collector, was standing on the rear step of the truck while helping the driver back into an alley. Straley fell off the steps and his legs were crushed. Straley sued the manufacturer of the truck, claiming it was poorly designed and that the rear step lacked handgrips. The manufacturer moved under 407 to exclude evidence of warnings it had issued to all purchasers of the truck, notifying them of the dangers of riding on the rear step. The parties disputed whether the warnings were issued before or after the accident.

After examining the evidence, the judge concluded that the manufacturer issues the warnings before the injury. 407 did not bar evidence of the warnings and the judge ruled them to be admissible.

James Boyden, Jr., was drinking beer at the apartment of his sister, Marie Boyden Connors. Boyden left the apartment at about 8:00 p.m., telling his sister that he was going out "to meet Billy Herd." Several hours later, police found Boyden dead on a nearby street. The government prosecuted William "Billy" Herd for the murder, and filed a motion in limine seeking permission for Connors to testify about Boyden's final statement to her.

After reviewing Hillmon, Rule 803(3), and appellate precedents, the trial judge allowed Connors to testify about Boyden's statement. This judge interpreted the plain meaning of Rule 803(3) to maintain the full scope of Hillmon, allowing use of a declarant's expressed state of mind to prove the actions of another person.

Matthew Tome and his ex-wife shared custody of their young daughter. The ex-wife alleged that Tome sexually assaulted the daughter when she was in his care. Police arrested Tome and charged him with sexual abuse of a child. In 1992, when she was six-and-a-half years old, the daughter testified at Tome's trial. The daughter's testimony was weak and halting; the prosecutor had to lead her through most of the story. Tome claimed that his ex-wife had persuaded the daughter to fabricate the abuse. The two parents had bitterly disputed custody of their daughter; Tome argued that his ex-wife and daughter concocted the abuse allegations so that the wife could obtain sole custody. To rebut the fabrication charge, the prosecutor called six witnesses who related statements that the daughter had made in 1990 describing Tome's abuse. The witnesses included the mother, a babysitter, a social worker, and several doctors. Tome objected to all of their testimony as hearsay.

Analysis: If the daughter fabricated the abuse to stay in her mother's custody, when did that motive arise? Families rarely keep records of their internal discussions, especially if the discussion involves pressuring a young child to lie about her father. But the mother in this case had petitioned the courts for sole custody in 1989, and the parents had bitterly disputed custody since that time. The judge didn't know if the mother and child had fabricated the abuse allegations; that was the very issue before the jury. But the motive to fabricate the allegations clearly existed as early as 1989. The statements made in 1990, therefore, arose after the motive to fabricate and were not admissible under Rule 801(d)(1)(B).

The government prosecuted John Lea for assaulting Justin Babcock, a federal witness who had testified against Lea's friend Michael Yarbrough. Lea admitted the assault, but claimed that he attacked Babcock only because Babcock owed him money. Lea thus attempted to avoid the stiff penalties imposed on people who retaliate against federal witnesses by assaulting them. To raise this defense, Lea seeks to call another friend, Marcel Davis, to the stand. Davis will testify that he was sitting in a car with Lea just before the assault. According to Davis, Lea spotted Babcock and said: "Hold on a minute, there's Justin, he owes me some money, I want to go see if I can get it." The prosecutor objects to this testimony as hearsay.

Analysis: Lea's statement "I want to go see if I can get it" is admissible under Rule 803(3) because it indicates Lea's then-existing plan to seek repayment of a debt from Babcock. Lea's stated intent is some evidence that his motive in approaching Babcock, as well as his motive moments later in assaulting him, was related only to recovering the money Babcock owed him.

Example: In a homicide prosecution, the gov calls Fogel as a key witness. To impeach Fogel, the defense attempts to call Fogel's wife, who was willing to offer her opinion that Fogel is a "Louse, dog, long nose, dirty bald head, fat slob and tightwad." She will also testify that Fogel has a reputation for these qualities in the community.

Analysis: Wife's testimony is NOT admissible under rule 608(a). The rule only allows for opinion or reputation testimony about a witness's character for truthfulness or untruthfulness.

Johnson sued her former highschool guidance counselor, Stevens, claiming that he sexually harassed and abused her when she was a student. Johnson attempted to support her case by offering evidence under rule 415 that Stevens had sexually assaulted Radwanski, a co-worker. Radanwanski offered conflicted testimony about whether she thought this touching was intentional, which was necessary for it to be a prior sexual assault under 415.

Court concluded that although Radwanski's testimony may support a finding of a previous sexual assault, the ambiguous nature of the evidence weighed in favor of exclusion under rule 403.

Jay Atwood sued Debt Collectors Inc. (DCI) under the Fair Debt Collection Practices Act. Among other practices, that statute prohibits debt collectors from using obscene language when they contact debtors. At trial, Atwood described several phone calls in which DCI employees peppered him with obscenities. On cross-examination, DCI's attorney questioned Atwood aggressively about his memory of those calls; counsel's 496questions suggested that Atwood could not correctly recall the words used in calls placed three years earlier. In rebuttal, Atwood's attorney offered testimony from Jay's sister Lena. Lena testified that, shortly after each of the calls, Jay complained to her about the offensive words used by DCI employees. The words he reported at the time of the calls matched the ones he testified to in court.

As you learned in Chapter 18, Lena's testimony is admissible to rehabilitate Jay's testimony. Her description of Jay's complaints bolsters his credibility by rebutting the cross-examiner's suggestion that Jay could not accurately remember the words by the time of trial. Now we can see that under Rule 801(d)(1)(B), Lena's testimony is also admissible for the truth of the matter asserted (to prove that Jay heard obscenities from DCI employees).

Cajun Construction Services had a contract to deliver truck loads of limestone to Mobil Exploration in Louisanna. The deliveries took place in 24 yard trucks, which are supposed to carry 24 yards of limestone. After 7 years of purchases, Mobil learned that Cajun was short loading its deliveries. Mobil sued for breach of contract. Cajun had destroyed all records of how much limestone they had loaded on the trucks and sent to Mobil, so Mobil offered 3400 loading records of Cajun trucks that delivered limestone to Cajun's own sites and to other third party costumers. The records showed that the average load for deliveries for 24 yard trucks was 17.5 yards. Cajun argued that the evidence of how it loaded trucks for its own sites and other third parties was irrelevant to the question of how it loaded trucks for the P.

At a bench trial, the Judge agreed with Cajun, that the records were irrelevant and excluded them. The COA reversed, noting that in order to establish the routine practice of an organization, a party had to show a sufficient number of specific instances of conduct to support that inference, evidence of D's actions on only a few occasions or only in relation to the P are not enough, and the P must show regularity ver substantially all occasions with whom the D had similar business transactions. Here, Mobil had over 3400 records of how Cajun loaded its trucks. Mobil had also elicited testimony from Cajun employees that they always loaded a 24 yard truck the same way regardless of destination. Thus, Mobil had established that Cajun had a routine practice of short loading its trucks and the evidence should have been admitted under 406.

Bonnie Ritter purchased a bottle of Coca-Cola from a vending machine and took a swallow. The drink tasted odd, so she examined the bottle more closely. Inside her Coke, Ritter found the torso and tail of a decomposed mouse. She consulted her physician, James Duncan, who conducted several tests and concluded that Ritter had suffered no physical injury from the contaminated drink. But Ritter started to suffer severe emotional distress. She had trouble sleeping and, when she did sleep, she dreamed of mice. She was unable to drink translucent liquids and she developed an intense fear of mice. She 546consulted a psychiatrist, Dr. Glenn Bacon, and described her symptoms to him. Ritter also sued Coca-Cola and called Bacon as a witness. Bacon described the symptoms that Ritter reported to him; Coca-Cola objected to the testimony as hearsay.

Bacon's description of Ritter's statements was admissible under the common law doctrines predating Rule 803(4). Ritter consulted Bacon to obtain "psychotherapeutic relief for her symptoms." The same desire that motivates other patients to speak truthfully to doctors, the court concluded, prompted Ritter's statements. She wanted to recover from the psychological anguish she suffered and she described her experiences and symptoms for that reason.

Jasper, a 3L, posted a note on his Facebook page saying that his classmate Linda was "lazy as a slug." Linda sued Jasper for defamation. At trial, Linda will offer evidence of her industrious nature, while Jasper attempts to prove Linda is, in fact, lazy.

Because defamation P's must show injury to reputation as an element, Linda may offer evidence that she had a reputation for being a hard-worker before Jasper posted his comment on Facebook, but now people in her community view her as a slacker. Reputation itself is an element of her claim, not just a way of proving character.

Pindell, a police officer, developed an illicit method of supplementing his income. He patrolled neighborhoods populated with prostitutes. When Pindell observed a prostitute get into a car with a male costumer, he would follow the car until it parked. Pindell, dressed in uniform, would approach the car and demand the man show ID and step out of the car. Once the costumer stepped out of the car, Pindell would threaten him with a gun, handcuff him, and take his cash. Pindell then released the victims, thunking that they would be unlikely to report a robbery that occurred while attempting to use the services of a prostitute. The gov prosecuted Pindell. Two prostitutes identified Pindell. Over Pindell's objection, the judge allowed these prostitutes to testify that they knew Pindell because he had previously purchased their sexual services.

Evidence that Pindell hired prostitutes, an illegal act in this city, can be used to show that he had a bad character. These actions suggest he was a lawbreaker. The prosecutor did not use this evidence to show that he was a lawbreaker, and consistent with that character, he had robbed the men. This would have violated Rule 404(a)(1). Instead, the prosecutor used this testimony to support the prostitutes identification of Pindell. Because the prostitutes had served him, they knew his identity. Evidence of Pindell's illegal acts were admissible to prove identify, a purpose allowed by 404.

Cargill, a company that grows and processes "Honeysuckle White" turkeys, received consumer reports that some of its turkeys had spoiled. To investigate the spoilage, Cargill sent Everett Fine to check the turkeys at several stores supplied by Cargill. Fine examined the turkeys at these stores and made contemporaneous notes of the production codes on the labels of any spoiled turkeys. Cargill ultimately determined that Boag Cold Storage, a warehouse that stored the turkeys before distribution, had allowed a batch of turkeys to thaw and spoil. In a lawsuit against Boag for damages, Cargill attempted to introduce Fine's notes to establish the distribution chain for the spoiled turkeys. Boag objected to the notes as hearsay.

Fine's notes were hearsay, but they fell within Rule 803(1)'s exception for present sense impressions. Fine recorded the production codes of the turkeys as he examined them in the store display cases. This contemporaneous recording of the notes described simply what Fine saw at the time he saw it.

Poore, a math professor, opposed construction of low income housing near his home. Frank, the developer, published ads in two local newspapers claiming that Poore was "wrongly named because he's an elitist who hates the poor." Frank also charged that Pore has a "miserly and tight fisted nature." Poore sued Frank for libel. Since truth is a defense, Frank defended by claiming that his characterization of Poore was truthful. In response, Poore presented witnesses who testified that he was generous, fair, and a caring person who treated the poor with compassion.

Frank's statement attacked Poore's character, making it an essential element of the dispute. Frank argued his assertions were true, while Poore argued they were false. The jury had to decide whether Poore was really an elitist who hated the poor. If this was true, then Frank's ads and statements were not defamatory.

Chase was riding in a car driven by her friend Spike. They collided with a car drive by Giles, a mild mannered high school librarian. Chase suffered serious injuries. Chase sued Giles, claiming that he carelessly rammed the car driven by Spike. Spike, who passes out immediately after the accident, was neither a party to the lawsuit nor a witness. At trial, Giles attempts to introduce evidence that Spike has a reckless character while driving; he argues that Spike caused the accident.

Gile's evidence about Spike violates Rule 401(a)(1). Giles is offering this evidence to make a propensity argument. Even though Spike is neither a party to the lawsuit or a witness, Rule 404(a)(1) bars Gile's evidence. The rule prohibits all uses of character evidence to prove that a person acted consistently with his character on a particular occasion.

the gov charged Gregg with killing Fallis. Gregg, Fallis, and other friends were drinking together when a dispute erupted between Greg and Fallis. The dispute became a physical fight, which ended when Gregg shot Fallis 5 times in the back. Gregg claimed self defense, arguing that he shot Fallis only after Fallis started running towards his truck to get a gun. To support his self defense claim, Gregg offered evidence of Fallis's violent character.

Gregg's evidence of Fallis's character was admissible under Rule 404(a)(2)(B). The character trait of violence is pertinent to whether a homicide victim acted aggressively and provoked the confrontation ending in his death.

Dutch sued IHOP for negligence, claiming she slipped on a puddle of maple syrup that the restaurant carelessly allowed to accumulate on the floor. Dutch claimed she suffered permanent pain in left leg. She offered a videotape of her nurse describing the difficulty she had walking, caring for herself and living independently. IHOP objects that this is hearsay.

HEARSAY. Although the jury can evaluate the nurse's words, IHOP had no opportunity to cross examine. The statements in the video are assertions, they were made outside of the court and Dutch offers them for the truth of the matter asserted.

O'Reilly sued Officer Farley for using excessive force when arresting him. O'Reilly's evidence shows that Farley beat him 10 times with a nightstick before handcuffing him. Farley claims in defense that he believed O'Reilly was high on PCP, which would make him extremely violent. Farley testifies that he approached OR to make the arrest and OR's friend, Hanity, said, "Be careful this guy just took 2 tabs of PCP and has been acting real angry."

Hanity's statement is relevant for two purposes. It is relevant for the truth of the matter asserted, to show that OR was really high on PCP and probably acted violently to Fraley's arrest. This is an improper hearsay purpose. Hanity is not in court so OR's attorney cannot attack the accuracy and credibility of the statement. If Hanity was in court, OR's attorney could ask, "how do you know he took PCP? What do you mean he was acting real angry? Are you jealous of him?" The jury cannot assess Hanity's credibility when he makes the statement and Hanity is not under oath. Hanity statement, however, is also relevant for a non hearsay purpose: to show that Farley had reason to believe that OR was high on PCP and may act violently. For this purpose, all that matters is that. the statement was made and that Farley had reasonable belief, not that the statement was true. Farley can testify first hand that the statement was made, OR's attorney can cross examine, and the jury can determine whether Farley really heard such statement. Judge will balance probative. value of this non hearsay purpose against the unfair prejudice of the hearsay purpose. Judge will consider the availability of a limiting instruction as well as other evidence.

Edwards & Hanly, an investment banking firm, sued the Wells Fargo Securities Clearance Corporation for securities fraud. A key issue in the case was whether Wells Fargo's employees knew that a series of stock trades conducted over 13 months were short sales. At the end of the disputed period, Wells Fargo terminated an employee named Marianna Ianuzzi. Just after leaving the firm, Ianuzzi told her colleague Joseph Werba, "I know that the trades were short sales." Ianuzzi moved overseas and was not available to testify, so Edwards & Hanly called Werba to testify about Ianuzzi's statement. Wells Fargo objected that the statement was hearsay.

Ianuzzi's statement is hearsay but it was an expression of her mental state, admissible under Rule 803(3). Technically, the statement establishes only that Ianuzzi knew on that day that the trades were short sales; she might have just discovered that fact. But Edwards & Hanly can use this statement to argue that Ianuzzi's knowledge on the day she spoke is some evidence that she knew the same facts earlier as well. Knowledge today is some evidence of knowledge yesterday, just as a leg that hurts today is some evidence that the leg also hurt yesterday. Wells Fargo, of course, can counter that this is rather weak evidence. The fact that Ianuzzi admitted knowing about the short sales after they ended does not offer much proof that she knew about them at an earlier point.

a grand jury indicted Zambrana and 10 other people for a series of narcotics offenses. Zambrana presented two character witnesses who both opined that she was peaceful and law abiding. The gov asked the witnesses whether they knew that Zambrana had helped her husband, a convicted drug dealer, escape from prison. Zambrana challenged the gov's good faith belief that she had acted in this manner.

In response, the prosecutor told the judge that Zambrana had confessed to an FBI agent in which the gov obtained an affidavit confirming the confession. This was sufficient to establish a good faith belief and the judge allowed the questions.

Leelanau Wine Cellars, Ltd. (LWC) has marketed wine under the trade name "Leelanau Cellars" for more than twenty-five years. 526A competing company, Black & Red, more recently began selling a wine called "Chateau de Leelanau." LWC sued Black & Red for trademark infringement. To show actual confusion among customers, a fact that contributes to establishing infringement, LWC's manager Treyvon testifies at trial that a buyer named Bella told him, "I remember your Leelanau wine! I tried it at the Michigan State Fair." To accompany this testimony, LWC introduces independent proof that Black & Red sold its "Chateau de Leelanau" wine at the state fair, but LWC sold no wines there. Black & Red objects to Bella's statement as hearsay.

In this case, Bella's memory is relevant to the legal dispute, and it is admissible under Rule 803(3). The reasoning is a bit tricky because there are two "truths" asserted in Bella's statement. One is that a wine named "Leelanau" was sold at the state fair. LWC cannot offer Bella's out-of-court statement to prove that truth. That would be using an expressed memory to prove the fact remembered; 803(3) does not allow that use. But Bella's statement also asserted the "truth" that, at the moment she spoke, she had a memory of trying a wine named Leelanau at the state fair. That is exactly what LWC wants to prove: that people believe that Leelanau Cellars wine and Chateau de Leelanau wine are the same. Because LWC wants to prove this truth of what Bella said, the statement ordinarily would be excluded as hearsay. But Rule 803(3) admits out-of-court expressions of mental state under these circumstances. "I remember Leelanau wine from the state fair" is a mental state relevant to this lawsuit, admissible under 803(3), because it is evidence of Bella's internal belief that the two wines are identical.

Former Judge Bork fell as he tried to mount the dais at the Yale Club and sued the Club for his injuries. A year after settling the claim, Bork settled the claim for an undisclosed amount. Imagine, the parties proceed to trial and dispute whether Bork was contributorily negligent. In this hypo, Rawls, a long time member of the club, testifies: "I was at the club for lunch that day and saw Bork. he rushed toward the dais without even glancing down. The man tripped over his own feet."

In this example, Rawls is a witness giving firsthand account of what she saw. Rawls is a declarant making a statement while testifying at trial and his statement is not hearsay.

Marjorie returned home from work to find her husband, Jayden, vomiting in the bathroom. "I've been sick as a dog for hours," Jayden told Marjorie, "and I have this odd headache. I need help getting to a doctor." Jayden then passed out on the bathroom floor; Marjorie called an ambulance and took Jayden to the hospital. Doctors determined that he was suffering from a bad case of food poisoning. Jayden later sued the Fried Fish Shack, where he'd eaten lunch. He called Marjorie to testify about his statement; the Fried Fish Shack objected to the statement as hearsay.

Jayden's statement is admissible under 803(4). Although Marjorie is not a doctor, Jayden made his statement to enlist her help in securing medical care. Thus, the statement was "made for" medical treatment. The Advisory Committee's note to Rule 803(4) supports this result by observing: "Under the exception the statement need not have been made to a physician. Statements to hospital attendants, ambulance drivers, or even members of the family might be included."

the gov charged Gilbert, a nurse, with killing four patients by injecting epinephrine. Excessive doses can cause fatally rapid heartbeats and all patients who died under Gilbert's care suffered from cardiac arrest. The gov filed a pretrial motion seeking to introduce evidence that Gilbert previously tried to kill her husband by injecting him with a excessive dose of potassium which can cause cardiac arrest. The gov contended that this evidence established Gilbert's identity as the one who killed the patients. Gilbert opposed the motion, arguing that the gov was using this evidence to show a forbidden propensity inference.

Judge excluded the evidence. The similarities of the crimes were too slight to support an admission for the purpose of proving identity. Also, identify was not at issue in the case. Gilbert did not defend again the charges by arguing that someone else did this, she contended that no crime occurred and the patients died of natural causes. Under these circumstances, the gov effort to introduce the alleged attempt to kill her husband did not support proof of identity. Instead, the gov wanted to introduce to support a forbidden propensity purpose: Gilbert was the type of person capable of murder.

Kathleen O'Gee was a flight attendant for United Airlines. Shortly after take-off O'Gee noticed that the food buffet, a large 500-800 pound unit, had slid into the plane's aisle and was blocking an emergency exit. O'Gee attempted to push the buffet back into place, and felt a sharp pain in her back. O'Gee, another attendant, and the flight engineer finally succeeded in securing the food buffet, but O'Gee's problems were longer lasting. She spent much of the next year in bed receiving medical treatment for her back. Ultimately, O'Gee underwent surgery to remove a herniated disc from her back. O'Gee sued Dobbs, the company that loaded the food buffet, claiming that Dobbs's employees improperly secured the heavy unit. But O'Gee did not call any of her treating physicians at trial. Instead, she called Dr. Koven, a doctor she saw after she had been treated medically and was 543preparing her case for trial. Koven sought to testify about the statements O'Gee made to him, describing both her symptoms and the manner in which they arose.

Koven's testimony was admissible. Although he did not treat O'Gee, he diagnosed her condition. The fact that the diagnosis occurred for litigation rather than treatment is irrelevant under Rule 803(4). That exception allowed Koven to repeat O'Gee's statements, as long as her attorney laid a foundation establishing the pertinence of those statements to the doctor's diagnosis.

a man entered a small neighborhood store, ordered the employees to lie face down on the floor and stole all of the stores cash. One customer, Magon, told police that she lifted her head slightly and saw the robber. Magon identified Cavendish in a line up and the state prosecuted him for robbery. In a pretrial motion, Cavendish challenged Magon's personal knowledge under 602. Cavendish introduced evidence that magon had poor eyesight. Cavendish argued that in this circumstance, combined with the fact that Magon admitted to lying face down, made it impossible for her to see the robber clearly and lacked personal knowledge of the robber's identity.

Magon's personal knowledge is a disputed factual issue: she claims she saw the robber clearly enough to identify him, while Cavendish said she did not. Resolution of this issue determines the relevance of Magon's testimony. If she saw the man, this is relevant and probative; if not this is irrelevant. Rule 104 states that relevance depends on whether a fact exists. A reasonable jury could resolve the dispute either way. But based on this conflict, a reasonable jury could believe Magon's claim that she saw the robber and this would give her personal knowledge to testify. Because there is evidence sufficient to support a finding that Magon had personal knowledge, the judge will admit her testimony under 104. The jury will decide if Magon really did see the robber and id her identification is reliable.

Marc, an enthusiastic hiker, died after eating poisonous mushrooms. Ginger, Marc's widow, attempted to claim the proceeds of Marc's million dollar life insurance policy. But the company denied payment, asserting that Marc committed suicide by intentionally eating the poisonous mushrooms. In a lawsuit over the insurance proceeds, Ginger attempts to prove that Marc was happy at the time of his death rather than suicidal. She offers the testimony of Marc's friend Charles who testifies that the day before his death, Marc told Charles: "I just got a great promotion at work" and "The country club is about to give me their 'Golfer of the Year' award."

Marc's statements were about external events, not his state of mind, so they do not fall within Rule 803(3). But Ginger is not offering these statements to prove the truth of the matters asserted: the insurance payment does not hinge on whether Marc received a promotion or won a golfing award. Instead, Ginger is offering these statements as circumstantial evidence that Marc was in a positive frame of mind the day before he died. The statements are not hearsay when offered for that purpose, and the trial judge should admit them. Note that Marc might have been lying when he told Charles about his promotion and award; the statements might have been bravado masking his depression. Marc's statements don't prove he was happy the day before he died—they simply offer some evidence of that mental state. The insurance company can combat that evidence by cross-examining Charles or offering other evidence of Marc's state of mind

Suppose in this hypo, Wilbur did not ask Dora about the weather. He testified that "I never looked outside that evening but my friend Dora arrived at 6pm. She came in the door folding a wet umbrella and it left water in my entryway." Is this hearsay?

NOT hearsay. Dora did not assert any fact when she folded the wet umbrella. She may not have even known that Wilbur was looking at her. Wilbur reports firsthand what he saw and the fact finder can make any reasonable inferences based on this.

Fred arrives a party holding a folded umbrella. Police receive a reliable tip that coke will be sold at the party. The search the premises and find coke inside Fred's umbrella. Fred is arrested and charged with possession of coke with intent to distribute. He testified he had no idea coke was in the umbrella, suggesting that someone else had to have put it there. Counsel asked "why did you take the umbrella?" and Fred answer, "Because I heard the weather forecaster on the radio say that it would rain."

NOT hearsay. Fred is reporting an out of court statement, but is not offering it for the truth of the matter asserted. The jury does not care whether the statement is true or not. Fred offers the statement to show why he took the umbrella with him in order to rebut the prosecutors theory that he took the umbrella to store the coke. The forecaster's statement only matters because Fred heard it and reacted by carrying the umbrella. Fred can testify directly that he heard the statement.

Hamilton was charged with uploading child porn to an internet newsgroup. The prosec introduced 44 images. Each included a computer generated header that revealed a unique IP address of the computer where the image originated. The address matched Hamilton's computer. Hamilton objected that this was hearsay.

NOT hearsay. The computer generated the headers automatically, without any input from a human. They were analogous to time shown on a clock or temperature on a thermometer.

A brother and sister are in a car crash together and both die within a few minutes. They shared a trust fund given to them by their parents. The terms of the trust held that the principal reverts to the family of the sibling who dies last. The spouses of the brother and sister sue each other claiming that their spouse outlived the other. The brother's wife calls a medic on the scene as a witness. The medic testifies that he took the sister's pulse, determined she was dead, and then went to the brother. When the medic leaned over the brother's body, he hard the brother say, "I am still alive." The sister's husband objects that this is hearsay.

NOT hearsay. Tricky because the brother's wife is trying to prove the truth of the matter asserted, that is only a coincidence. We care both that the statement was true and that it was made; if the brother would have said anything else, the statement would be equally probative. The statement can be admitted for a non hearsay purpose: to prove that the brother was still able to speak and was still alive at the time.

Orville Redden, a long-time worker for Happy Time Popcorn, developed a life-threatening lung disease from inhaling diacetyl, an ingredient used in microwave popcorn. In 2007, Redden filed a complaint against Happy Time, alleging that the company failed to adopt safety measures that would have protected him from the effects of diacetyl; the National Institute for Occupational Safety and Health had recommended those measures in 2000. Happy Time moved for summary judgment on the ground that a threeyear statute of limitations barred Redden's claim. The company argued that Redden developed clear symptoms of his lung disease before 2004, so that he knew or should have known of the claim before that time. Whatever the merits of his underlying claim, the company contended, he waited more than three years to file it. To support its summary judgment motion, Happy Time offered a letter written by Orville's daughter, Marcia, to her sister in 2005. In that letter Marcia wrote: "I'm worried. Looking back, I remember that Dad has been wheezing, short of breath, and coughing for at least two years." Redden objected to these statements as hearsay.

Remember that the Rules of Evidence apply to summary judgment motions; if a piece of evidence would not be admissible at trial, a party cannot rely upon it to obtain summary judgment. Marcia's letter is an out-of-court statement, so it is hearsay if offered to prove the truth of the matter asserted. Marcia's first comment, "I'm worried," reflects her state of mind, so it is admissible under Rule 803(3). But her second statement describes her father's symptoms, rather than Marcia's mental state. The prefatory words "I remember" don't change the character of the second statement. Happy Time is not offering Marcia's letter to prove that, at the time she wrote it, Marcia had a mental state of thinking about her father; that fact is irrelevant to the lawsuit. Instead, Happy Time is relying upon the letter to show the truth of what Marcia remembered: that by 2005 her father had been showing symptoms of lung disease for at least two years. When offered for that purpose, Marcia's 2005 statement is hearsay and it does not fall within the state-of-mind exception

Kettles sued Bonner for defrauding her of gov benefits she was entitled to receive as a war veteran's widow. Kettles presented several witnesses who testified about her good character. Blake, for example, testified that Kettles was an honest mother and good wife. Kettles also offered witnesses who testified about Bonners "deceptive, shady, evasive, and manipulative" character.

Rule 404(a)(1) barred both of these lines of testimony. Neither Kettle's good character or Bonner's bad character was a element of this fraud claim. Kettles offered the evidence to prove that her honest nature, indicating she had been duped by Bonner and that Bonner was a shady person who more likely than not defrauded her. Rule 404(a)(1) prohibits the propensity use of character, both good and bad.

the gov prosecuted Garibaldi for stabbing Allen to death. Garibaldi claimed that Allen attacked him, and that he stabbed Allen in self-defense. To support this claim, Garibaldi presented testimony of his girlfriend, Egards, who testified that she saw Allen attack Garibaldi and strike the first blow. The gov then offered testimony from Allen's neighbors and coworkers that he had a "peace-loving, nonaggressive nature."

Rule 404(a)(2)(C) permits Allen's neighbors and coworkers to testify. Garibaldi has not introduced any evidence about Allen's character, but he offered eyewitness testimony suggesting that Allen was the first aggressor. In homicide cases, the prosecution can offer evidence of the victim's peaceful character whenever the defense offers evidence that the victim was the first aggressor, even if the defense did not rely upon character evidence.

The gov prosecuted Huddleston for selling stolen videotapes. Huddleston conceded that he sold the tapes but claimed that he did not know they were stolen. To show knowledge, the gov offered evidence that Huddleston previously sold suspiciously law priced TV sets obtained from the same source as the videotapes. Two months before the videotape sale, Huddleston had offered to sell several thousand black and white TV sets for just $28 a piece and had no bill of sale for the TVs. The gov argued that this showed that the TV sets were stolen and that Huddleston knew they were stolen. The previous sale of stolen TV sets, the prosecutor claimed, provided evidence that Huddleston knew the videotapes (from same source) were also stolen. Huddleston challenged the admission of the evidence on the grounds that the gov offered insufficient proof that the TVs were stolen, arguing that before admitting potentially prejudicial evidence the judge should have determined under 104(a) that the TVs were actually stolen.

SCOTUS acknowledged that the tv set evidence was only relevant if they were stolen. If so, the previous sale of merchandise from the same soirce made it more likley that he knew the videotapes were also stolen. The court rejected Huddleston's claim that the judge should. have determined under 104(a) that the tv sets were stolen. Instead, the court applied 104(b) screening standard. To admit the gov's evidence, the trial judge only had to find that a reasonable jury could find that the tv sets were stolen. Huddleston's inability to produce a bill of sale, combined with the law price at which he offered to sell was sufficient to allow a reasonable jury to make that finding.

Roger was juggling knives in the kitchen while his three young children played at his feet. His wife, Samantha, was on speaker phone in the same room talking to her sister Louise. Samantha, while eyeing her husband's antics, said to her sister, "Yes, he's practicing his juggling right now, using my best set of kitchen knives." Just at that moment, Roger dropped one of the knives on his four-year-old son Todd. Todd screamed, "Owwww, Daddy cut me!" Samantha shouted, "I warned you not to throw knives in the air with all our kids around!" And Todd's sister Megan yawned and commented, "Here we go again, Todd cries every day about something." Assume Louise overheard all of these statements and is called to testify about what she heard. Which of these statements would be admissible for the truth of the matter asserted?

Samantha's initial comment to her sister is a present sense impression; she is describing Roger's actions as they occur. But she does not seem particularly excited by Roger's juggling practice, so the comment is not an excited utterance. Todd's outcry is both an excited utterance and a present sense impression: He is describing the cut as it occurs and is responding to it in an excited way. Samantha's second comment is an excited utterance; she is reacting in an excited way to the startling event of Roger dropping a knife on their son. But this is not a present sense impression because Samantha is referring to a previous action (warning Roger) and editorializing on the present scene. Megan's comment, finally, is neither a present sense impression nor an excited utterance. She is analyzing the present moment in the context of Todd's ongoing behavior, so this comment goes beyond mere description. Nor does she seem particularly startled or excited by the injury to her brother. For her, it's just another day at home.

Lois Marren, a secretary for the Metropolitan Sanitary District, suspected one of the District's purchasing agents, Thomas Moore, of rigging bids. Marren regularly searched Moore's office looking for evidence to support her suspicions. One day Marren called her colleague, Irene Marszalek, into Moore's office after Moore had left for the day. According to Marszalek, Marren was "just like jumping up and down" and talking "as if she had won a million dollars in a lottery." Marren told Marszalek, "I've found the evidence I've been waiting for for a long time." Marren had found some extra bid sheets, which demonstrated Moore's illegal behavior, in his wastebasket. The government prosecuted Moore for fraud, but Marren died before trial. To establish the connection between Moore and the incriminating bid sheets, the prosecutor called Marszalek to testify about Marren's statement. Moore objected to this testimony as hearsay.

Searching a wastebasket rarely leads to excitement, but in this case it did. The trial court properly admitted Marren's statement as an excited utterance. The court of appeals affirmed this ruling, rejecting Moore's claim that Marren could not have been excited because she had been searching for evidence of Moore's wrongdoing for a long time. Although Marren had been looking for evidence of this nature, the successful conclusion of a search can still be exciting. "This is like panning for gold," the court concluded. "Discovery may to one degree or another be expected; but it is always exciting."

the gov prosecuted Pless and other gang members. In addition to distributing coke, the gang allegedly murdered more than a dozen people. Detective Simmons offered some of the most persuasive evidence against Pless by describing numerous incriminating statements Pless made orally after his arrest. The defense attempted to cross examine Detective Simmons about several exculpatory statements that Pless made during the post arrest discussion.

The trial court denied the defendant's motion because the statements were neither written or recorded. However, the court of appeals held that the trial court should have used its power under Rule 611(a) to admit the exculpatory statements.

A prison inmate brutally beat John Foster, a correctional counselor, with a metal pipe. Foster's injuries included a fractured skull, and he was hospitalized for almost a month. When an FBI agent first interviewed Foster in the hospital, he was lethargic and unable to remember his attacker. Several weeks later, the agent interviewed Foster again; at that time, Foster was able to describe the attack, name James Owens as his attacker, and identify Owens from a photo array. The government charged Owens with assault with intent to murder. But by the time of trial, Foster's memory had clouded again. He could remember what he was doing just before the attack, recall feeling blows on his head, and remember seeing blood on the floor. He could also remember talking to the FBI agent in the hospital and identifying Owens at that time, but he could no longer remember seeing the person who attacked him or why he thought it might have been Owens. Nor could Foster remember talking to any hospital visitors other than the FBI agent, although records showed that he had other visitors. He was unable to recall whether any of these visitors might have suggested that Owens was his attacker. The prosecutor called Foster to the stand to testify about his hospital identification of Owens, arguing that it was admissible under Rule 801(d)(1) (C) as an identification. Owens conceded that the prior statement was an identification, but claimed that 801(d)(1) should not apply at all because Foster was not "subject to cross-examination" about his previous statement; although he was testifying in the courtroom as a witness, his memory was so impaired that counsel could not effectively cross-examine him.

The Supreme Court upheld introduction of Foster's pretrial statement as a prior identification under Rule 801(d)(1)(C). The Court concluded that the "natural reading" of Rule 801(d)(1)'s cross-examination requirement was that the witness is "placed on the stand, under oath, and responds willingly to questions." Foster satisfied all of those criteria. The fact that he no longer remembered seeing his attacker and had forgotten other aspects of the intervening months did not make him unavailable for cross-examination. On the contrary, an essential purpose of cross-examination is to reveal defects in the witness's memory. Owens's counsel had ample opportunity to show through cross-examination the gaps in Foster's memory and the potential unreliability of his prior identification. Rule 801(d)(1)'s reference to cross-examination does not require more than that.4

A ship sinks at sea with no survivors to explain the loss. A subsequent lawsuit disputes the seaworthiness of the ship when it left port. The party claiming seaworthiness offers evidence that the captain inspected the ship and then sailed off in it with his wife and children.

The captain's conduct was NOT hearsay because he did not intend to assert anything when he sailed off with his family. The conduct is circumstantial evidence that he believed the ship was seaworthy; otherwise he wouldn't have risked his life and family. But he was not declaring or asserting anything to anyone.

A few weeks after dental surgery, Meyer learned that she had suffered nerve damage in her tongue and gums. She sued the dental clinic, claiming that the dentist who performed the surgery failed to warn her that he procedure could result in nerve damage. The dental surgeon, Aitkin, could not remember the exact conversation he had with Meyer, but testified that standard procedure with any patient undergoing surgery is to advise the patient of all risks.

The court admitted Aitkin's testimony, noting that he had been in practice for 3 years and had developed a long established habit and custom of informing patients of risk. Two of his assistants also testified that the dentist gave patients such warning. Given this evidence, the court (in a bench trial) concluded that the D did advise Meyer about the risks of surgery, even though there was no direct evidence about what exactly was said.

Leonard Comforth, a truck driver, was murdered while sleeping in his parked truck. Travis Friend confessed to shooting Comforth and made several sworn statements in which he implicated James Scruggs in the murder. The government prosecuted Scruggs and called Friend as a prosecution witness. Friend surprised the government by testifying at the Scruggs trial that he had no knowledge of Comforth's murder. The prosecutor then moved to introduce evidence of Friend's prior statements.

The court admitted Friend's prior statements under Rule 801(d) (1)(A). The prior statements flatly contradicted Friend's courtroom testimony and satisfied the other prerequisites for admission under the rule. Since Friend's prior statements were admissible under an exemption from the hearsay rule, the jury could use the statements for the "truth of the matter" asserted by Friend. In other words, the jurors could rely 493upon Friend's prior sworn statements to conclude that Scruggs participated in the murder

New was driving his father and cousin down the highway at 89 mph, when he lost control of the car, causing it to run off the highway and roll over twice. The father and cousin were killed. New was taken to hospital and his blood alchohol content was .320. The gov charged New with two counts of involuntary manslaughter, which requires proof that the D knew or reasonably could have foreseen, that his conduct was a threat to the lives of others. The gov offered evidence that New had two prior convictions for DUI and New objected under 404(a).

The court admitted the convictions and the COA affirmed. The prior convictions were not admitted to prove that the D had a propensity to drive drunk or act recklessly, but instead to prove that he was aware of the risks of driving drunk and knew that it threatened the lives of others

Police officers in Oklahoma routinely collect the serial numbers of firearms pawned in their jurisdiction and try to match the numbers to stolen firearms. During one of these checks the officers learned that a shotgun left at a pawnshop a day earlier had been stolen. The officers examined the pawn shop records and discovered that the gun had been pawned by a man named Shaun James. The officers put a hold on the gun so it could not be reclaimed. A few months later, a man named Shaun James called the police demanding his gun back. He explained he bought the gun from a neighbor and had no away of knowing it was stolen. The police did not have sufficient evdience of James' knowledge to charge him with posession of stolen firearm. However, they found that James had a prior felony conviction. At trial, the officers sought to testify that the gun James posessed had been stolen to explain how the gun first came to their attention and why they placed a hold on it. James objected, arging that the jury would be unfairly prejudiced against him if they hard that the gun was stolen.

The court admitted the evidence. Although the fact that the D possessed a stolen gun tended to prove he had a bad character, it was impossible for the gov witnesses to tell their story without explaining that the shotgun had been stolen. The fact that the shotgun was stolen was intertwined with the witness's narrative and had to be disclosed to the jury as it was necessary to COMPLETE THE STORY.

Tatum, an elderly widow, died leaving a substantial estate. Her will left all her property to a museum in Tennessee. Her grandchildren challenged the will claiming that their grandmother lacked mental capacity. The executor of the estate introduced evidence of a variety of letters from different people to Tatum at the time she wrote the will. The letters discussed everyday business matters. Executor argued that the letters showed Tatum's corresponders believed she was in sound mind or else they would not have written letters of this nature. Grandchildren objected that the letter was hearsay.

The letters were NOT hearsay. The executor did not offer the letters for the truth of their content. The letters were offered to prove that other people who knew Tatum well believed that she would understand and respond to topics like these. This was relevant to prove that she was mentally competent at the time.

The gov charged Dowling with robbing a bank in the Virgin Islands. the robber wore a ski mask and had a pistol. After fleeing, the robber scurried around the corner and then commandeered a taxi. The police and prosecutor believed the robber had an accomplice, Christian, who was parked in a getaway car but was frightened when police noticed the car, which caused the robber to get a taxi. An eyewitness identified Dowling as the robber. The prosecutor also offered evidence of testimony from Henry that Dowling and Christian attempted to rob her home two weeks after the bank robbery and that of of the men wore ski mask, had a small gun, and identified himself as Dowling. The prosecutor linked this to the bank robbery because the robber also wore a ski mask, had a h=gun, and the perpetrator worked with Christian on both occasions. Dowling opposed the testimony on the grounds that a jury had already acquitted him of robbing her home. He argued the gov lacked sufficient evidence of this other act to present it to the jury.

The court allowed Henry's testimony about the home robbery. The jury acquitted Dowling, but that only meant that they had reasonable doubt. The jury in the bank robbery case could still find by a preponderance of the evidence that Dowling committed the bank robbery. If so, the home robbery was relevant. Under 104 (b), the court could allow the jury to hear Henry's testimony.

The gov charged Platero with raping Francis. Platero argued that Francis consented to sex and that she claimed rape to avoid embarrassment in from of Laughlin, with whom she was having an affair. Francis and Laughlin both denied they were romantically involved at the time of the rape; Francis was married to another man. Francis and Laughlin, however, were romantically involved at the time of Platero's trial and Laughlin's former gf claimed the two had a secret affair for many years. Francis referred to Laughlin as her bf in statements made to police and doctors after the rape.

The court concluded that Platero presented sufficient evidence of Francis's relationship with Laughlin to support a finding that the two were having an affair when Francis accused Platero of rape. 104(b) required the jury to decide that preliminary issue.

Southern Pacific Railroad train collided with a pickup truck at a train crossing, killing the driver and injuring the passenger. The passenger sued Southern Pacific, claiming the operator of the train was driving too fast, failed to blow his whistle, and failed to brake properly The P sought to admit the train operator's prior safety record, which included 9 violations over the course of his 29 year career. The infractions included speeding, failure to display headlights, and failure to properly identify himself on the radio.

The court excluded the evidence under 404 as improper propensity evidence. The P's claim that the violations proved "habit" was rejected for 2 reasons. First, the number of infractions over the course of such a long time did not constitute repeated conduct. Second, the conduct described in the safety record varied widely and for the most part did not match ip with alleged conduct by the operator at the time of the crash.

Radhica Ramrattan was severely injured when her car collided with a truck at an intersection. At the hospital, Ramrattan made numerous statements to the admitting nurse and treating physician about 545what happened. One of these, recorded in the medical records, was "patient indicates truck ran red light and smashed car; leg pinned against seat for 15 minutes before rescue." Ramrattan sued the truck driver and his employer for negligence; the defendants moved before trial to redact Ramrattan's medical records to exclude any reference to who was at fault in the collision.

The court granted the defendants' motion, agreeing that Ramrattan's attributions of fault were not pertinent to her medical treatment. Ramrattan's statements that a truck smashed her car and that her leg was pinned against a seat for fifteen minutes were pertinent to treatment and admissible. But her comment that the truck ran a red light was not pertinent and would be redacted

Gary Longie was accused of repeatedly sexually assaulting his daughter when she was between the ages of six and eleven years old. At trial, a pediatrician testified for the government that the daughter identified Longie as her abuser. The trial judge admitted these hearsay statements under Rule 803(4).

The court of appeals affirmed, finding that statements identifying a family member as the abuser are "reasonably pertinent" to medical diagnosis or treatment. The court reiterated that the statements must meet the requirements of Rule 803(4): (1) the declarant's motive in making the statement must be consistent with the purpose of promoting treatment; and (2) the content of the statement must be the type that a doctor would reasonably rely upon in treatment or diagnosis.

The United States prosecuted Anjel Torrez-Ortega for distribution of marijuana and cocaine. Armondo Valdez-Arieta had provided details of Torrez-Ortega's guilt to a grand jury. At trial, however, Valdez-Arieta asserted his Fifth Amendment privilege against self-incrimination and refused to answer questions. He continued to claim the privilege even after the government granted him immunity. The trial judge then allowed the prosecutor to introduce Valdez-Arieta's grand jury testimony.

The court of appeals held that introduction of this prior testimony was erroneous. Quoting the Supreme Court's language in Owens, the court held that Valdez-Arieta's blanket assertion of privilege meant that he was not "subject to cross-examination." A witness's assertion of memory loss, the court noted, does not preclude cross-examination because it reveals one of the very aspects that cross-examination often seeks: that the witness's recollection, whenever expressed, is unreliable. An assertion of privilege has a very different effect; it may lead the jury to accept unquestioningly the witness's prior statement, without permitting any effective cross-examination. Rule 801(d) (1) does not allow the government to introduce a prior statement under these circumstances

A flight crashed in Bali, killing 100 passengers. Reps of the deceased passengers sued the airline claiming that they negligently entrusted the plane to a pilot who had a reckless character while flying. To show the pilot's poor character and the airline's knowledge of that character, the P's offered evidence of multiple mistakes the pilot had made in his ongoing training.

The court ruled that the evidence was admissible. By claiming that the airline negligently allowed the pilot to fly, the P's made the pilot's character an element of the case. Rule 405(b) then allowed proof of specific incidents, like the mistakes the pilot made during training, to prove the pilot's character.

Police searched a car driven by Garcia and Castro. On the floor in the backseat they found a jacket that belonged to Castro with 100 grams of heroin. The gov charged both men and Castro pled guilty to conspiracy to traffic heroin. Garcia claimed no knowledge of the drugs and went to trial. At Garcia's trial, the gov called Castro as a witness. He testified that Garcia was the drug dealer and that he was just along for the ride. Castro claimed that he had pled guilty because Garcia pressured him to take the blame. The prosecutor built upon this by saying that Castro was "really stupid," "dumb as a box of rocks," and "a fool." Given this, the gov contended that Gracia must have been the mastermind of the drug transaction. In response, Garcia claimed that Castro had been convicted of selling coke and heroin to an undercover officer on six separate occasions. Garcia argued that this rebutted the gov's claim that Castro was too dumb to sell drugs on his own. Garcia had no prior convictions.

The district judge excluded the evidence about Catsro's prior drug convictions concluding that it violated 404(a)(1) and didn't fully fit 404(b). The COA reversed, noting that Castro's alleged incompetence was central to the gov's theory of the case. Castro's prior convictions were relevant in rebutting that argument. The evidence also did not require any impermissible propensity inference. Garcia offered the evidence to show that Castro had the knowledge and ability to conduct the charged drug sale on his own, not merely to suggest that he had a tendency to sell drugs.

The United States prosecuted Melvin Joe for first degree murder of his wife, Julia Joe. Melvin admitted that he killed Julia, but claimed that he lacked the specific intent for first degree murder. He contended that he was drunk when he killed Julia and enraged because she had threatened to divorce him. To show Melvin's specific intent, the government called one of Julia's neighbors, Brett Smoker, to testify. Smoker testified that eight days before the crime, Julia told him that she was "afraid of Melvin" because "he's acting like he is going to kill me."

The first part of Julia's statement, that she was "afraid of Melvin," is admissible as an expression of Julia's state of mind. But the second portion, that Melvin was "acting like he is going to kill me," is inadmissible under that exception. Melvin's actions may have prompted Julia's fear, but they were not part of her mental state. Admitting that portion of Julia's statement for the truth of the matter asserted—that Melvin had, in fact, acted like he would kill Julia—violates the rule against hearsay

John and Michelle Sandalis operated Dalis Painting, a company that performed paint jobs for the University of VA. The Sandalises failed to report revenue from the business on their tax returns, leading to prosecution for tax fraud and evasion. Sandalis called six character witnesses who each testified about his truthfulness. On cross examination, the gov asked one of the witnesses, "did you know that Sandalis within the last few years attempted to persuade a witness to testify falsely in a judicial proceeding?"

The judge permitted this question. Since the witness testified to Sandalis's character for truthfulness, the gov could ask about a specific incident bearing on that character

The gov charged Dahlin with robbing a bank. Dahlin claimed that he was babysitting his infant niece at the time and that he never would have left the baby alone because he was "deeply devoted to his niece and family." To support this, Dahlin offered several witnesses to testify about his devotion to family. In response, the gov offered two types of character evidence: (1) that Dahlin got along poorly with his family and (2) that Dahlin tended to take things that did not belong to him. Dahlin objected to both as exceeding the bounds of 404(a)(2).

The judge properly admitted testimony about Dahlin's poor relationship with his family. Since Dahlin buttressed his alibi defense with character evidence suggesting family devotion, 404(a)(2)(A) allowed the gov to respond with evidence of a contrary character. However, the gov could NOT introduce evidence that Dahlin was prone to theft. Although this character trait was pertinent to the crime charged, the D had not introduced any evidence suggesting an honest character. The gov may rebut only traits that the D has raised.

Babcock was driving alone in his truck when he went off the road and hit a tree, suffering injuries that led to his death. Babcock's estate sued General Motors, manufacturer of the car, claiming that Babcock had been wearing his seatbelt at the time of the accident, but that it had released upon impact due to a design defect called "false latching." At trial, General Motors argued there was no defect in the seatbelt and that Babcock was not wearing it at the time of the accident. General Motors pointed out that nobody saw him wearing it during the drive and that there was no seatbelt fastened around him when emergency responders arrived at the scene. Babcock's estate called 3 witnesses to testify about Babcock's habit of wearing a seatbelt. The first testified that he had ridden with Babcock at least 10-20 times a year for the past 16 years. The second testified that he had ridden with Babcock about a dozen times in the 18 months prior to the accident. The third had ridden with him 8-12 times over the last few years before. All three testified that Babcock had always worn his seat belt, regardless of whether he was the driver or a passenger and regardless of the length of the trip.

The judge properly admitted the evidence. The court noted that evidence of a person's habitual seat belt use should be admissible to suggest that he was wearing a seatbelt on a particular occasion, but that the same evidence probably would not be admissible to prove that the person had more general dispostion to act safely.

The gov charged Fawlty, motel owner, with breaking into one of the motel rooms at night and sexually assualing a guest. The guest testfiied that she had locked the door from the inside and that the assailant entered with a key. Investigators found no extra keys to the room and Fawlty tetsifed that he had no passkey or other means to enter the room. To rebut, the proecutor offered evdience that a year before the incidient, Fawlty pled guilty to breaking into a room and stealing a guest's wallet. This room was also locled from the isndie.

The jury could use the evidence of Fawlty's guilty plea to make a forbidden propensity inference. They may infer that Fawlty has a tendency to break into guest's rooms's for illegal purposes and that as a result he committed the charged sexual assault. The prosecutor, however, has another permissible purpose for the evidence: it shows that Fawlty had the opportunity to commit the crime. He must own a passkey or means giving him access to locked guest rooms.

Martha Stuart notices that her porch railing is loose and tells her neighbor, Dickens, that: "I'm going to have to fix that railing because it's loose." Stuart then spends the day trading stocks and forgets to fix the railing. The next day, Stuart's parole officer visits the home, falls through the railing and is injured. The parle officer sues for negligence and calls Dickens as a witness. Can Dickens report Stuart's comment?

The parole officer could try to use Dicken's report of Stuarts comment for two different purposes. First, he could introduce the comment to show that the railing was in fact loose. This is a hearsay use of the comment as the parole officer would be offering it for the truth of what Stuart said. Second, the parole officer could introduce the evidence for a non-hearsay purpose: to prove that Stuart knew about the loose railing and was negligent in failing to fix it. The statement could be hearsay for one purpose, and not hearsay when used for another purpose.

Keller was stabbed to death on Dec 2. Police discovered a wallet containing Stevenson's ID that was next to the body. Officer Schultze visited the address on the ID. Stevenson was not home, but he spoke with his wife. He asked the wife to give him the clothing that Stevenson was wearing on Dec 2. Mrs. Stevenson gave a pullover shirt. Lab tests showed bloodstains on the shirt that were the same type as the victims. At the murder trial, the prosec introduced the shirt and testimony by Schultze about how he obtained the shirt. Stevenson objected to both as hearsay.

The shirt was NOT hearsay, but Ms. Stevenson's conduct in handing over the shirt was. She gave the shirt in response to a request for clothing worn on Dec 2. The gesture of handing over the shirt included the implicit assertion: "This is the shirt Stevenson wore on Dec 2." This implicit assertion occurred outside of the courtroom and was offered for the truth of the matter asserted. The prosecutor could try to elicit Ms. Stevenson's direct testimony, but could not introduce her statement secondhand through Schultze.

Curtin, a 42 year old man, met an individual who claimed to be a 14 year old girl in an internet chat channel called "itgirl sexchat." After exchanging for four hours of sexually explicit messages, Curtin and the girl agreed to meet in the bowling alley of a Las Vegas Casino. Their messages contemplated spending the night together and engaging in sexual acts. Unfortunately for Curtin, the "girl" was actually a male Las Vegas Police Detective. When Curtin arrived at the bowling alley at the specific time, he was arrested and charged with traveling across state lines with intent to have sex with a minor. Curtin's defender was that he never believed he was chatting with a minor; he thought he was corresponding with a woman in her 30's or 40's pretending to be a 14 year old girl. Curtin further claimed that he intended to have sex with her while they both pretended she was 14, assuming that both of them wanted to role play "daddy/daughter incest." To counter this defense, the prosecutors sought to admit stories that they found on Curtin's personal digital assistant when he was arrested. These stories, downloaded by Curtin, described a variety of incestous relationships between adults and children. Since Curtin's subjective intent was the only contested issue in the case, the gov urged that the stories were both relevant and essential to establish intent. Curtin opposed admission of the stories, claiming that they would unfairly prejudice the jury against him.

The trial court admitted 5 of the stories, concluding they were relevant to establish intent and properly offered under 404(b). The court said it was sufficiently probative to survive 403 balancing test. But the COA reversed, finding that the trial judge's 403 determination was flawed because he only read portions of the stories. The COA said that the stories, though inflammatory, needed to be fully read in order to weigh the prejudicial nature against their probative value. One of the stories, for example, included a graphic description of a young girl having sex with a dog. The passage had no relevance to the gov's case and was highly prejudicial.

The government charged John Milton, a staff attorney for the Equal Employment Opportunity Commission (EEOC), with stealing money from the United States. Milton had negotiated a settlement agreement on behalf of the EEOC with CW Transport, a company charged with employment discrimination. As part of the settlement, CW Transport deposited $1 million in an account that Milton managed for the EEOC. Money from the account was available to compensate minority job applicants who had been refused employment with CW Transport. The government claimed that Milton persuaded several acquaintances to submit false claims on this account and share the proceeds with him. Anita Jones, one of Milton's acquaintances, testified to a grand jury that Milton helped her submit a fraudulent claim, that she received $5,913.07 from the EEOC account, that she gave Milton those funds, and that Milton gave her $1,100 in return. At trial, however, Jones claimed that she could remember almost nothing about her dealings with Milton or her testimony to the grand jury. The prosecutor moved to introduce Jones's grand jury testimony under Rule 801(d)(1)(A), but Milton objected that Jones's lack of memory was not "inconsistent" with her prior statement.

The trial court admitted Jones's testimony, finding that her lack of memory was "inconsistent" with her prior, detailed statement. The court of appeals agreed. The appellate court noted that Jones's current lack of memory did not impair defense counsel's ability to discredit her grand jury testimony. A witness who gives a detailed statement at one time and claims failed memory at another may appear inherently unreliable to the jury. In addition, Jones stated on cross-examination that she was addicted to drugs when she appeared before the grand jury, was suffering from withdrawal, and was on the verge of a nervous breakdown. Thus, even though Jones claimed that she couldn't remember the content of her grand jury testimony, the jury received ample evidence from her demeanor and testimony about the context of the grand jury statement to assess the credibility of both that prior statement and her courtroom claims of failed memory.

Xavier Giles was standing on a sidewalk near Earl Edwards. Giles watched as a van pulled up near Edwards, three men exited the van, and the men began speaking to Edwards. One of the men pulled out a gun and shot Edwards, killing him. Giles started to flee, and the gunman shot Giles in the hip. Giles continued to run until he collapsed a few blocks from the scene. An ambulance took Giles to the hospital, where police detective Jeremy Rosenberg interviewed him in the emergency room. When Rosenberg talked to Giles, about 40 minutes had elapsed since 512the shooting. Giles was lying on a bed in the emergency room, connected to both intravenous fluids and medical monitors; he was still bleeding from his gunshot wounds. The government prosecuted Ricardo Delvi for the shooting and moved for permission to call Rosenberg as a witness. Rosenberg intended to testify about comments Giles made to him in the emergency room; these comments helped link Delvi to the crime.

The trial judge admitted Giles's statement as an excited utterance. Although the statement occurred forty minutes after the shooting, Giles had suffered a series of traumatic events: He had witnessed a murder, suffered a serious wound, run several blocks from his assailants, and been transported to an emergency room. At the time he made his statement, he was still bleeding from his wounds and a witness described him as excited. Under these circumstances, Giles was not in a mental state where he was likely to fabricate a statement.

Darres Park, a federal inmate, participated in a scheme to smuggle amphetamines into the prison. Paul Long, another inmate, provided some information about the scheme to investigators and repeated that information to a grand jury. At Park's trial, however, Long claimed that he could not remember anything except his own name. He testified that he could not remember any information about Park or even that he had appeared before the grand jury. The prosecutor then moved to introduce Long's grand jury testimony under Rule 801(d)(1)(A) as a prior inconsistent statement made under oath in a proceeding.

The trial judge admitted Long's grand jury statement, and the court of appeals affirmed. In addition to satisfying the other requirements of Rule 801(d)(1)(A), the court readily concluded that Long was "subject to cross-examination." Indeed, Long's behavior made him a particularly easy witness for defense counsel to discredit through cross. By making such extravagant claims of memory loss under oath in the courtroom, Long demonstrated that he was "a blatant liar—someone whose oath meant nothing to him. . . . That enabled counsel to ask the jury how reliable Long's out-of-court statement could be, given that Long was willing to lie to the jurors' faces.

David Miller was helping a stranded motorist on the shoulder of Interstate 95 when a trailer truck sideswiped them and their vehicles. The truck killed the stranded motorist and injured Miller. The truck driver did not stop, and Miller did not see the truck that hit him. County police, however, received an anonymous 911 call from a woman about eight minutes after the accident. The caller said: "Good afternoon, I'm on Highway 95 South and I was in quite a bit of heavy traffic, when we noticed a truck which was pulling a trailer, but I couldn't get a license number because of the trailer and the heavy traffic, but it said 'Crown Amusements' on the side of the truck and as he went by a broken down truck . . . he sideswiped and hit one of the young men. He made no attempt to stop. This was in the area of mile marker 99 or 98, perhaps between the two. Ah, this is my first opportunity to reach a phone." Miller sued the Crown Amusements Company for his injuries and moved to admit the recorded 911 statement to support his claim that the company's driver caused his injuries. Crown Amusements objected to the recording as hearsay.

The trial judge noted that the 911 call came from a gas station located at the highway exit closest to the accident scene. The timing of the call fit perfectly with a driver witnessing the accident and driving immediately to the nearest exit to make a call. No closer rest stops or call boxes existed on that stretch of Interstate 95, and this accident occurred before cell phones became common. Finding that the content of the statement showed the caller's direct perception of the event and that the eight-minute gap stemmed entirely from the speaker's focused search for a phone, the court admitted the statement as a present sense impression.

An armed robber stole more than $600,000 from a New York City bank branch. One of the tellers, Patrick Crowl, identified Michael Anglin as the robber from a photo array held shortly after the crime. Crowl indicated that he was "very certain" Anglin was the robber, that the robber had stood directly in front of Crowl "putting the machine gun in [Crowl's] face for about 15 seconds or more," and that his recollection of the robber's face was "still fresh." Based on this and other evidence, the government prosecuted Anglin for the robbery. At trial, Crowl could not identify Anglin as the armed robber. The court nonetheless allowed him to testify about his previous identification of Anglin from the photo array.

The trial judge properly admitted Crowl's testimony about his prior identification of Anglin. Rule 801(d)(1)(C) allows such testimony regardless of whether the witness is able to repeat the identification in court. The jury was able to weigh the credibility of Crowl's identification, given his inability to repeat that identification, the circumstances of the prior identification, and other facts elicited on cross-examination.

John McCrery, a hospital patient, suffered a cardiac arrest while in the hospital. His attending physician, Dr. Lucy Goodenday, resuscitated him, intubated him, and connected him to a respirator. Except for a few moments, McCrery remained conscious during these events. After McCrery stabilized, Goodenday left him to attend other patients. She returned two hours later and, after ascertaining that McCrery appeared calm and had a normal pulse, she asked him whether he had received any medications before the heart attack. McCrery nodded yes and, in response to further questions, indicated that he had received medication intravenously. When Goodenday asked who had given McCrery the medication, he wrote the first name of his nurse, "Pia," on a piece of paper. The government prosecuted Pia Narciso for killing or attempting to kill McCrery and numerous other patients. McCrery died before trial, and the prosecutor attempted to introduce his handwritten note, arguing that it was an excited utterance.

The trial judge properly rejected this argument. Although McCrery suffered a very stressful event—a heart attack and resuscitation—he appeared to have recovered from that event by the time Goodenday talked with him two hours later. He appeared calm and his pulse was normal. Under these circumstances, he had sufficient opportunity for reflection and his note did not bear the indicia of reliability that excited utterances convey.

As a joke, Roseanne shouts "killer bees!" in a crowded restaurant. All of the other customers rush from the restaurant, causing significant damage and loss of revenue. The state prosecutes her for malicious mischief. The restaurant manager testifies that he saw and heard Roseanne shout "Killer bees!" just before all the customers rushed out.

This is NOT hearsay. The prosecutor is not trying to prove the truth of the matter asserted, indeed the prosecutors case depends in part on the fact that Roseanne's statement was false. The statement is being offered to prove that (1) Roseanne made a statement that was likely to cause panic and (2) immediately after the statement other customers did in fact panic. The prosecutor will use this testimony to prove only that a statement was made and that others were able to hear it. The manager perceived both of these facts firsthand so his testimony is not hearsay.

Hylton tried to shoplift three shirts from a Gap store. The manager caught Hylton and forbade her from returning to the store. When Hylton entered the store the following week, the manager had her arrested and charged with trespassing.

To prove trespass under these circumstances, the prosecutor had to show that Hylton knew that the store had revoked her right to enter the store. To do so, the prosecutor may elicit testimony from the manager stating that she saw her shoplifting the week before and told her she must not return to the store. Although this evidence may prompt the jury to conclude Hylton is a lawbreaker, it also establishes knowledge necessary for the crime

The outcome of a personal injury lawsuit turns on whether it started raining at 6pm on April 2. The issues is contended among the parties, Wilbur, a witness for the P, testified that Dora visited him at 6 pm on April 2 and he asked her whether it was raining outside. Wilbur testified that Dora said nothing but shook her wet umbrella at him. D objects that this is hearsay.

Wilbur's testimony contains hearsay. Although shaking an umbrella is not an assertion, this act carried an assertive meaning in this context. It was the equivalent of saying "Yes it was raining you fool that is why I am holding a wet umbrella." Dora made the assertion outside of the court and Wilbur is offering it as the truth of the matter asserted (that it was raining)

The US promised to ship soybean oil to India and hired Central Gulf lines to deliver it. When the cargo arrived in India, auditors discovered that 54,128 pounds of soybean oil were missing. The gov sued Central Gulf to recover damages. The gov introduced a letter of protest that it had sent to Central Gulf that described how much oil was lost and that it had breached the contract. Central Gulf objected to the letter as hearsay.

Written as well as verbal statements can constitute hearsay. However, the letter is NOT hearsay. The gov did not introduce it to prove the truth of the matter asserted within its text. The letter mentioned that the oil was missing, but the gov had other evidence to prove that. The gov used the letter to prove that it had given Central Gulf notice of the breach as required under the contract. The fact of the letter, rather than its contents, was the relevant information.

Mother and Father divorced in 1999. Mother awarded sole custody of the children. In 2003, father sought to gain custody because of the character of the new stepfather. Father presented evidence from the stepfathers former wife that he had been physically abusive and evidence from another relative that he had choked the mother in front of the children.

in a custody dispute, character evidence can become an essential element as the court must determine "the best interest of the child." Here, determination of the child's best interest requires scrutiny of the stepfathers character. The acts committed suggest that he has a violent and abusive character toward women. That character, in turn, predicts that he will commit additional acts of domestic violence that would harm the children. In this case, court awarded custody to the children's father.

Nazzaro, a Boston police officer, stood trial as part of a federal prosecution of Examscam, a scandal in which a group of police officers sold advance copies of civil service exams and answer sheets to other officers seeking promotions. The gov charged Nazzaro with purchasing two separate exam/answer sets for $3,000 a piece. As part of his defense, Nazzaro attempted to introduce evidence of commendations he had received in the military and in the police force, including a medal for special valor. The trial judge rejected the evidence as not pertinent.

the COA affirmed. The court also concluded that the qualities shown by this evidence such as bravery or attention to duty, were not pertinent to fraudulent behavior. Evidence of an honest character would have been most pertinent to the crime charged.

During 1990, the FBI mounted "Operation Lost Trust" an investigation of corruption. The FBI persuaded Cobb, a lobbyist who had been caught purchasing coke, to serve as an informant. At the FBI's direction, Cobb offered several legislators cash payments if they would support a bill legalizing betting on horse and dog racing. Legislator Bailey accepted $500 from Cobb for this purpose. When the gov charged Bailey with accepting the bribe, Bailey admitted to accepting the money, but claimed that the money was for a legitimate campaign contribution. To prove that Bailey accepted the money with the intent to commit his vote on the betting bill in return, the prosecution presented testimony from Kohn. Kohn testified that during the same legislative term that Bailey accepted money from Cobb, Kohn paid Bailey $200 to authorize pavement of a dirt road used by a boating company.

the court admitted Kohn's testimony concluding that the gov relied on this evidence to prove INTENT which was clearly dispute by Bailey. Bailey's sale of his legislative services for a similar sum during the same period offered important evidence of his unlawful intent when he accepted payment from Cobb.

Green Acres Contracting Company fired Ansel, a 45 year old laborer and truck driver. Ansel sued claiming age discrimination. Ansel offered evidence that Green Acres fired at least one other worker in his forties around the same time that Ansel was fired and that the company hired several younger workers during this time. In response, Green Acres offered evidence that it fired Ansel because of several incidents of insubordination. Based on this, the issue for the jury was whether Green Acre's claimed reason for firing Ansel was its true reason or whether the claims of insubordination were a pretexted for age discrimination. To address this, Green Acres offered evidence that it hired Beddington, a 45 year old worker, 18 months after the company fired Ansel. Ansel objected under 404. the

the court admitted the evidence about Beddington. Green Acres offered ir to illuminate its intent or motive when it fired Ansell, both purposes that 404(b) allows. the court noted that both plaintiffs and defendants in employment discrimination suits frequently offer evidence about the treatment of other workers. Here, Ansel had introduced evidence about another older worker who was terminated, while Green Acres introduced evidence about a similar worker who was hired. Neither side offered the evidence to prove that, because the company had a particular intent on other occasions, it must have acted with the same intent on the occasion in dispute. Rather than a propensity argument, the parties urged the jury to infer motive from the overall pattern of actions.

The gov prosecuted Drury for plotting to procure the murder of his wife. Drury testified in his defense, and the prosecutor cross examined him, presenting evidence of numerous inconsistencies in his testimony and prior statements. Drury then offered 6 witnesses who would testify about his truthful character.

the court excluded testimony by the 6 character witnesses. the prosecutor's cross examination did NOT constitute an attack on Drury's character for truthfulness, and no prosecution witness testified that he had an untruthful character. Under those circumstances, Drury could NOT offer evidence that he had a truthful character.

The gov charged Dr. Berry with submitting false medicare claims. Dr. Berry attempted to introduce evidence of her excellent skill in treating patients

the court excluded this evidence, finding that it was not pertinent to the charges. Medical competence and honesty are two different traits. Dr. Berry could be the most competent, skilled Dr. in the world, and still commit fraud.

Alonzo, an undercover police agent, purchased 83 million grams of heroin from a man who had parked a primer gray Volkswagen bug in front of a house at 4906 Buena Vista Avenue. The dealer sold Alonzo the drugs packaged in two pink balloons. Alonzo did not know the name of the dealer when he purchased the heroin, but he later identified Sanchez as the dealer from a photo. The gov charged Sanchez with selling heroin. At trial, Sanchez, claimed that Alonzo mistakenly identified him. In rebuttal, the prosecutor called officer Martinez as a witness who testified that he visited 4906 Buena Vista Ave a week after the drug purchase, approached the gray VW bug in the driveway, and purchased two pink balloons containing heroin from a man in the car. Martinez also testified that the man in the car was Sanchez and the VW had the same lisence plate as the car Alonzo has seen a week earlier Sanchez objected to Martinez testimony under 404.

the district judge allowed the testimony as relevant to establish Sanchez's identify and the COA affirmed. The pink balloon was not as significant as you would think because this is common among heroin dealers, but the fact that purchase of heroin came from the same location, were sold in the same manner by a man who controlled the same car, was sufficiently distinctive to allow the evidence as proof of identity. the fact that the sales occurred one week apart further buttressed the vase for introducing other crime evidence.

In the DeCicco example, the gov charged DeCicco with setting two separate fires in his warehouse during July of 1995. The prosector also offered evidence that DeCicco tried to burn the same warehouse in March of 1992. The earlier fire was set in a similar manner to one of the 1995 fires, it occurred just hours before his insurnace policy was due to end, and he was facing financial pressures at that time. quick response from the fire department prevented much damage to the building in 1992 and DeCicco submitted no insurance claims for that fire. The gov argued that the earlier fire showed DeCicco's ongoing plan to burn the financially unsuccessful warehouse and collect insurance proceeds.

the district judge excluded evidence of the 1992 fire in a pretrial ruling, but the COA held that this decision was an abuse of discretion. the COA found that the existence of similar suspicious fires occurring in the same building suggested a COMMON PLAN. The three year gap was not too long to preclude evidence of commonality, it actually supported the common plan as the 1992 insurer had canceled the policy due to misrepresentations and DeCicco had to wait 3 years to apply for a new one without having to disclose the earlier cancellation. The 1995 fires occurred just two months after the insurance resumed.

The gov prosecuted George for beating Kellywood to death. In response to George's claim of self defense, the gov presented character witness who testified of Kellywood's peacefulness. George's counsel attempted to cross examine the witness on his knowledge of Kellywood's numerous arrests for speeding, driving without license, disorderly conduct, DUI, public intoxication, and endangering welfare of minor.

the district judge precluded inquiry into these arrests, finding that none of them relayed sufficiently to peacefulness or violence. One factor that may have influenced the trial judge was that the character witness already testified on direct that "he occasionally drank with Kellywood and on no occasion, drunk or sober, did he see Kellywood get violent. " If the witness had not already discussed Kellywood's drinking, the trial judge may have allowed inquiry about the arrests for DUI and public intoxication. Intoxication induces violence in many people, so knowledge of the arrests might affect a witness's opinion of peacefulness. The trial judge may have also been influenced by the fact that Kellywood was a victim rather than the D. Judges tend to be more protective of a victim's reputation, especially a dead one, rather than that of the D's reputation. If the D had presented a character witness testifying to his peacefulness, the judge may have allowed cross examination about a similar arrest record. The court of appeals affirmed. Trial judges have wide discretion in the questions they allow on cross of character witnesses.

JR is charged with killing his father by running him over. JR claims that this was an accident and that his father came out into the driveway and he was not paying attention while he parked the car. The prosecution wants to call JR's wife to testify that the day before the killing, she caught JR trying to put arsenic in his father's bourbon.

the fact that JR tried to put arsenic in his father''s bourbon is evidence that he had a propensity to commit crimes of violence. It is also probative to prove that JR had the intent to kill his dad which tends to prove that when he actually did kill him the next day, it was not an accident. Thus, rule 404 does not bar the evidence and the judge may admit it to show INTENT.

The gov charged Gary DeCicco with setting his commercially unsuccessful ware house on fire and fraudulently collecting insurance proceeds on the building. At trial, the prosecutor planned to show that DeCicco torched the warehouse in part to obtain money to pay off more than one million in back taxes. DeCicco's debt arose from years of illegal tax evasion recently uncovered by the IRS. DeCicco filed a motion in limine to exclude evidence of his tax evasion and resulting liability, arguing that 404(a)(1) barred this evidence.

the judge agreed with DeCicco and excluded the evidence, concluding that since the gov had not charged him with any tax crimes, it was attempting to show that DeCicco was the kind of bad person who would commit arson and other crimes which is the type of propensity inference that 404(a)(1) forbids. The court of appeals reversed on the grounds that the judge abused his discretion. Although the gov had not charged DeCicco with tax violations, his accumulated tax liabilities provided MOTIVE for the charged arson. Arson is a crime in which financial motives play a significant role, making this evidence relevant. Thus, evidence was admissible to prove a fact (motive) that did not depend on propensity barred by 404(a)(1).

The gov charged Grady with attempt to pass counterfeit money. A witness testified that Grady had a good reputation in the community for truth and honesty. On cross, the prosecutor asked the witness if he knew that Grady had been arrested for filing a false employment security claim as well as for making a false statement to the police.

the judge allowed these questions. Both arrests related to crimes of dishonesty and the witness testified about Grady's truth and honesty. Opposing counsel could raise these specifics incidents on cross.

A grand jury indicted Camacho with illegally bringing citizens from the Dominican Republic into the US. Camacho's daughter sought to testify that her father was a "kind person and good family man."

the judge excluded this evidence as NOT "pertinent."

Detective Penn and several other police officers conducted a narcotics surveillance at the St. Louis airport. Based on an informants tip, they identified McGauley as a suspect who might be carrying narcotics. A trained dog smelled narcotics in McGauley's bag, and a search revealed more than 500 grams of cocaine. The gov charged him with possession of coke with intent to distribute. The prosecutor did not call Detectuve Penn at trial, relying on testimony from other officers who had participated in the arrest. McGauley attempted to introduce evidence that Penn's reputation for truthfulness was poor; he had resigned from the police force after perjuring himself in two other drug cases.

the trial judge PROPERLY EXCLUDED this testimony. Penn did not testify at trial, so McGauley could NOT offer evidence impeaching his character for truthfulness.

the gov charged Hayes, Vice President of Saybolt, with participating in company wide conspiracy to fabricate the results of petrolum tests. The prosecutors evidence contained testimony from other employees that Hayes pressured them to obtain good test results and to fabricate negative ones. In response, Hayes offered testimony from other employees that , during the time of the alleged conspiracy, he had never pressed them to fabricate results and that he consistently directed them to follow proper testing procedures.

the trial judge rejected Hayes evidence under 404, but the COA reversed. COA concluded that Hayes was not trying simply to show a good character through the evidence he offered. Instead, in response to the governments charge that Hayes had participated in a company wide conspiracy. Hayes offered evidence of acts that tended to negate his his participation in that conspiracy. Just as the gov offered specific acts to suggest Haye's participation, Hayes could present specific acts to show his participation. Indeed, it was difficult to see how else Hayes could have defended against the gov charges.