Relevant evidence




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FRE 804(b)(2) – Dying Declarations – In (1) a prosecution for homicide or (2) in a civil action or proceeding, (3) a statement made by a declarant while believing that the declarant's death was imminent, (4) concerning the cause or circumstances of what the declarant believed to be impending death.

  • The theory was that people who know they are dying will not go to their maker with a lie on their lips.

  • Statement has to be about the cause or circumstances of the death. “I’m dying and I know it, Jim shot me” will get in. “I’m dying and I know it. Let me tell you how I spent the past year” won’t.

  • You don’t have to actually die. Enough if you believe death is imminent.



  • FRE 804(b)(3) – Statement Against Interest – A statement which was (1) at the time of its making (A) so far contrary to the declarant's pecuniary or proprietary interest, or (B) so far tended to subject the declarant to civil or criminal liability, or (C) to render invalid a claim by the declarant against another, that (2) a reasonable person in the declarant's position would not have made the statement unless believing it to be true.

    • Exclusionary Language: A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

      • Otherwise, D will invent or manipulate statements of unavailable people taking blame for a crime that D is on trial for.

    • As opposed to admissions, these MUST be against interest when uttered.

    • The fact that we don’t have enormous confidence in this exception is revealed by the fact that unavailability must be proved.

    • Williamson v. US (USSC 1994): this exception only admits statements clearly against interest, not neutral or exculpatory. However, can still cover statements that address another party’s participation: “Sam and I went to Joe’s house” admissible if would implicate declarant in Sam and Joe’s conspiracy. However, any kind of blame-shifting statement or cooperative statement doesn’t count – we don’t trust it, as it could be currying favor. Applies even to statements made after arrest.

    • Lilly v. VA (USSC 1999): reversing conviction where VASC let in whole long confession w/o analysis under Williamson. To be admissible, everything has to add to D’s exposure.

    • Problem 4N – Truck pulled over, pot found in the back where one guy is staying, he says “it’s mine, not Gavin’s.” Here, the “not Gavin” part isn’t against interest. However, this doesn’t look like the problematic situation Congress was guarding against. They don’t really know each other. Actual court allowed the whole statement; found sufficient indicia of trustworthiness to avoid the exclusionary language. But after Williamson?


FRE 807 – The Hearsay Catchall

  • FRE 807 – A statement not specifically covered by Rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.

  • Notice requirement: However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent's intention to offer the statement and the particulars of it, including the name and address of the declarant.

  • Idaho v. Wright (USSC 1990): 2.5 year old child victim of sex abuse. Trial court let witness repeat what child told her under 807 (then 803(7)). USSC says burden is on offering party to show sufficient guaranties of trustworthiness, and the party can only look to the immediate circumstances of the statement, not external factors (such as corroboration).

    • Prosecution offered spontaneity, the age of the child, the lack of motive to make up a story of this nature.

    • Kennedy would have allowed looking at corroboration, like IDing a scar

    • Under old standard, was found violation of Confrontation Clause, but under Crawford, it wouldn’t be.


Special Hearsay Issues in Cases with Multiple Defendants

  • Sufficiency of a limiting instruction

    • Bruton v. US (USSC 1968) – Evans and Bruton on trial for bank robbery. P has statement from Evans “Bruton and I did it.” It’s admissible against E for its truth (801(d)(2)(A)), but no hearsay exception to make it admissible against B. Statement is offered at trial with limiting instruction that jury shouldn’t use it against B. USSC says limiting instruction here was insufficient. Joint trial using full statement violated confrontation clause.

      • This is not a repudiation of limiting instructions. It’s a judgment call for the judge about the risk to the co-defendant, and whether the state had alternatives.

      • Could have had separate trials, redacted part of the statement, had 2 juries and taken B’s out of the room for the statement

  • Redaction

    • Gray v. Maryland (USSC 1998) – where co-defendants are on trial, redaction of D1’s statement to read “_____ and I robbed the bank” still violates Bruton. The inference that the co-defendant is the name blacked out is too strong.

    • US v. Logan (8th Cir. 2000) – where co-defendants are on trial, a witness’s testimony that D1 had told him that he and “somebody else” had committed the robbery (admissible under 801(d)(2)(A)) does not violate Gray – jury will not assume that “someone else” is D2.


The Confrontation Clause

  • Crawford v. Washington (USSC 2004) – A New Analysis

    • Holding: what matters for the Confrontation Clause is whether the statement at issue was “testimonial.” If the (1) statement was testimonial and (2) there was no prior opportunity for cross, then the defendant has the right to have the declarant present at trial, or the statement can’t come in.

    • Testimonial Statement: Court derives the definition from history. Prior to modern system of police, crime investigation was all about statements to the investigating magistrate. Such statements are “testimonial.”

      • Statements to police officers doing an investigation are therefore definitely testimonial. Leaves further definition to later cases.

    • Prior Opportunity: The dominant view is that a prior opportunity to cross is sufficient, no matter the nature of the proceeding. However, if the opp was at a preliminary hearing where there were strong disincentives to cross, a defendant might find a sympathetic judge. See Green.

    • Appears that if an out-of-court statement is judged non-testimonial, there’s no Confrontation Clause inquiry. However, it’s possible that even though the decision greatly disparages Roberts, Roberts analysis could still apply to non-testimonial statements. Alternatively, there could be some other standard, not Roberts. However, Davis, below, seems to say that the Confrontation Clause only applies to testimonial statements.

    • Mentions in dicta that a statement to an undercover officer is non-testimonial – it’s not to an investigating officer in the sense of the historical investigating magistrate.

  • Davis (USSC 2006)

    • Facts: 2 combined cases, Davis and Hammond. Davis: 911 tape of the victim, where the victim now won’t testify. Hammond: statements to police responding to a domestic violence complaint, where by the time police arrived all sides had cooled off, complainant now won’t testify.

    • Davis: This statement is not testimonial. Both the 911 operator’s and the victim’s primary purpose in asking and answering questions was to get/send help, not investigate a crime.

    • Hammond: Here, the primary purpose was to investigate a crime. There’s nothing wrong with this; it’s what the police should have done. However, it makes the statement testimonial.

    • Testimonial: Statement is testimonial if the primary purpose of the questioner is law enforcement investigating a crime, or trying to create a record for future prosecution.

  • Forfeiting a Confrontation Clause challenge:

    • Wrongdoing by defendant (making someone be unavailable) forfeits Confrontation Clause challenge on equitable grounds.

    • This requires wrongdoing, not invoking a legal right, like spousal privilege. If defendant has a right, he can’t be made to pay for exercising it. Wrongdoing here is intimidation or threats to procure unavailability.

  • 2nd cir Case Name? – autopsy results under Davis

    • Facts: Doc who introduced autopsy report was not the doc who did the autopsy. D objected that the doc who did the autopsy had to be produced.

    • Holding: ME’s report is not testimonial

    • Rationale: ME is not law enforcement. He’s an independent officer, so the report can come in as a public record or a business record. This was not within the intention of Crawford. The statement wasn’t about creating a record for later prosecution. The ME is not part of an activity of a law enforcement team

      • Is this a good rationale? MEs know that what they right will very likely be used in a prosecution.

      • Gillers: this pushes the boundaries of Crawford and Davis

      • However, we don’t want to force MEs to continually come to court


Character Evidence

  • FRE 404(a) – Character Evidence Generally – Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:

    • (1) Character of accused. In a criminal case, (A) evidence of a pertinent trait of character offered by an accused, or (B) by the prosecution to rebut the same, or (C) if evidence of a trait of character of the alleged victim of the crime is offered by an accused and admitted under Rule 404(a)(2), evidence of the same trait of character of the accused offered by the prosecution

    • (2) Character of alleged victim. In a criminal case, and subject to the limitations imposed by Rule 412, (A) evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused, (B) or by the prosecution to rebut the same, (C) or evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a homicide case to rebut evidence that the alleged victim was the first aggressor

    • (3) Character of witness. Evidence of the character of a witness, as provided in Rules 607, 608, and 609 (i.e. impeachment).

    • Summary: All about door opening by defense in a criminal case

      • If D puts on evidence of D’s character:

        • Prosecutor can rebut it with bad character evidence (1)

      • If D puts on evidence of vic’s character:

        • Prosecutor can show same character trait in D (1)

        • Prosecutor can rebut it with good character evidence (2)

      • If in homicide case, D argues vic started it, Prosecutor can put on evidence of vic’s character for peacefulness (2)

    • To deal with the hearsay problem of a character witness testifying to what a lot of other people think, we have a hearsay exception: FRE 803(21) –reputation of a person's character among associates or in the community

  • FRE 405(a) – Giving Character Evidence: Reputation or opinion. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made (1) by testimony as to reputation or (2) by testimony in the form of an opinion. (3) On cross-examination, inquiry is allowable into relevant specific instances of conduct.

    • Offeror of character evidence can offer a person’s reputation in either her residential of employment community. Can state the witness’s own opinions about the person’s character.

      • FRE 405(b)Witness may not go into specific instances unless character or a character trait of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that person's conduct. Grounded in judicial efficiency.

        • Rare that this is the case. One common exception: custody disputes – parents’ character is an essential element

    • On cross, attorney may inquire into specific instances of conduct to attack the person’s character

      • Ex: character witness says D is peaceful. The prosecutor can ask “Did you know that Don sent his wife to the emergency room two weeks ago when he hit her?” so long as he has a good faith basis for believing the incident happened

      • If witness knew about incident, can inquire further on redirect

      • D can get a limiting instruction that jury shouldn’t assume that the incident underlying the question actually happened

    • Specific instances of conduct may be admissible under another rule. This may look like character evidence, but it’s not – has independent value.

      • Ex: Fact of B’s prior violent incidents may be relevant to A’s state of mind, which could be relevant to a defense of justification

  • FRE 404(b) – Prior “Bad Acts” – (1) Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. (i.e. not for propensity purposes) (2) It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident

    • Notice Requirement: upon request by the accused, (A) the prosecution in a criminal case (B) shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, (C) of the general nature of any such evidence it intends to introduce at trial.

    • Rejecting the “bad apple” theory: Cardozo said it’s not because of logic – it makes sense to use a person’s prior criminal conduct as part of the proof from which we infer guilt. We bar such reasoning as a matter of policy. We’re fearful that the jury will give it too much weight, and not be attentive of its job if it knows that the accused has a long rap sheet.

    • All 404(b) evidence is subject to exclusion under 403.

    • Intent: Problem 5F – informant sets up her boyfriend R to do a drug deal w/ cops. He sees the money is dusted and walks away. His defense is that it was just a scam and he was never going to deliver the drugs (lower penalty). R is charged with conspiracy, where intent is an element. Prosecutor wants to introduce through informant that R did numerous drug sales during 18 months they lived together. Argument is that this is to show intent, not propensity. Courts routinely accept such evidence.

      • Remember, 403 issue is unfair prejudice, not just prejudice. Worry is that jury would convict b/c they think he’s a bad guy even if they’re not convinced beyond a reasonable doubt he did this sale. Balance probability of this against how strongly it speaks to intent.

      • R could get limiting instruction that it’s admissible on intent, not character, but this is worthless – they’re the same here.

      • To avoid just this, lawyers will often try to stipulate to intent.

      • 2nd Cir case: In simple drug sale prosecution, court said issue was whether un-recovered bag had coke or talcum powder in it, not D’s intent, and excluded prior drug convictions.

    • Preparation: prosecutor could introduce that D purchased an illegal gun or stole a car in preparation to rob the bank (the charged crime)

    • Signature Crimes (Identity): Problem 5G – prosecutor could introduce confession to 8 similar crimes all using similar car, mask, method. Up to judge to weigh danger of prejudice that it will be treated as propensity evidence.

    • Plan: Problem SG8 – Q wants to get rent-controlled tenants out. Was previously charged with hiring people to threaten these tenants, but not convicted. Now charged with threatening A. Evidence of threats of previous residents combined with evidence that building is worth 6x with them out is relevant to showing a plan by Q, which increases the likelihood Q hired people to threaten A. Admissible.

      • The plan evidence must be useful to resolve the material issues. The plan has to be relevant.

    • Disproving Accident: Problem 5I – Can introduce testimony that child was brought into emergency room 6 previous times with similar injuries. No need to show that there was a “plan” in the battering. Plus, there likely wasn’t a pre-planned scheme of child-beating, so you wouldn’t be able to.

    • Knowledge/State of Mind: Problem 5J – D sells 5,000 stolen videotapes. Says he didn’t know they were stolen. P wants to introduce evidence that he previously sold stolen TVs. This is legit use of prior act evidence. However, D wants judge to determine under 104(a) that he sold stolen TVs before it gets to the jury, and he wants a high burden of proof on this.

      • US v. Huddleston (USSC 1988): Under 104(a), judge will determine whether there are enough facts for a reasonable jury to find that he did deal in stolen TV’s – a very low BoP. If there is, it goes to the jury under 104(b). Judge will then instruct the jury that if they find it more likely than not that D dealt in stolen TVs they may consider that fact in evaluating whether he knew the tapes were stolen.

    • Dowling v. US (USSC 1990): prosecutor can use evidence of prior crime where D was acquitted. Standard for relevance here is only more likely than not, whereas at trial it was beyond a reasonable doubt. Even after an acquittal, evidence of the prior crime could still pass the lower bar. Additionally, what P wants to show here may not be exactly the same act as the completed crime, so overall finding of not guilty may not be relevant to what prosecutor wants to bring out.

  • FRE 608(a) – Impeachment / Character for Truthfulness – opinion or reputation evidence of character ok, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.

    • Evidence of truthful character only admissible to rehabilitate

    • However, character for truthfulness doesn’t have to have been attacked by another witness – any attack on character for truthfulness will warrant rebuttal.


Character in Sex Offense Cases

  • Rarely used, b/c most sex crime prosecutions are in state courts, but many states use the FRE as a model for their evidentiary codes.

  • FRE 412(a) – Rape Shield – In either criminal or civil proceeding involving any form of sexual misconduct, the following evidence is inadmissible: (1) Evidence offered to prove that any alleged victim engaged in other sexual behavior. (2) Evidence offered to prove any alleged victim’s sexual predisposition

    • FRE 412(b) – Exceptions:

      • (1) In a criminal case, the following evidence is admissible, if otherwise admissible under these rules:

        • (A) evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of semen, injury or other physical evidence

        • (B) evidence of specific instances of sexual behavior between the alleged victim and the person accused offered by the accused to prove consent; or by the prosecution

        • (C) evidence the exclusion of which would violate the constitutional rights of the defendant.

      • (2) In a civil case, evidence offered to prove the sexual behavior or sexual predisposition of any alleged victim is admissible if it is otherwise admissible under these rules and its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party (reverse 403). Evidence of an alleged victim's reputation is admissible only if it has been placed in controversy by the alleged victim.

    • Theory: sexual activity by a woman on specific occasions does not provide appreciable support for an inference that she consented to engage in this activity with the defendant.

    • Problem 5K – In prosecution of A for raping C, evidence that C was sexually active is barred. Evidence that C had sex with B earlier that night is barred. Evidence that C had sex with A last summer is admissible. Has a tendency to make consent more likely (401). Could still be excluded (403)

    • Olden v. Kentucky (USSC 1988): Olden accused of rape. Olden should have been allowed to argue that the reason victim was accusing him of rape was to explain to her boyfriend why she was seen with Olden.



  • FRE 413 – Evidence of Similar Crimes in Sexual Assault Cases

    • (a) In a criminal case in which the defendant is accused of an offense of sexual assault, evidence of the defendant's commission of another offense or offenses of sexual assault is admissible, and may be considered for its bearing on any matter to which it is relevant.

      • Notice requirement: (b) In a case in which the Government intends to offer evidence under this rule, the attorney for the Government shall disclose the evidence to the defendant, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least fifteen days before the scheduled date of trial or at such later time as the court may allow for good cause.

    • (c) This rule shall not be construed to limit the admission or consideration of evidence under any other rule.

      • 401’s relevancy requirement still a bar

      • Could still be excluded under 403

      • To analyze: 413, then 401, then 403

        • Ex: P has testimony about a prior rape under similar circumstances, and a conviction for assault on a minor. A judge may well exclude the one involving the minor on 403, given that it’s hugely inflammatory and cumulative
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