Evidence Cases Outline
The Federal Rules of Evidence and parallel rules at the state level define the scope of the evidence that can be introduced in civil and criminal trials. However, a student of this topic also must understand how courts have interpreted these rules and certain related constitutional doctrines. Courts have addressed issues such as relevance, character evidence, witness qualifications and impeachment, the hearsay rule and its exceptions, and privileges that shield communications from disclosure. Below is an outline of key cases in evidence law with links to the full text of virtually every case, provided free by Justia.
Relevance and Sources for Exclusion
Under Federal Rule of Evidence 401, evidence is relevant if it may make the existence of any fact of consequence more or less probable. Rule 402 provides that evidence is admissible if it is relevant, unless the Constitution, a federal law, the Federal Rules of Evidence, or rules created by the US Supreme Court provide that it is not admissible.
Douglas v. Eaton Corp. 一 In making a determination of whether evidence is relevant, a court must consider merely whether this evidence has "any tendency" to support a consequential fact.
U.S. v. Foster 一 There is no such thing as highly relevant evidence or marginally relevant evidence. Evidence is either relevant, or it is not.
U.S. v. Lowery 一 Rule 402 provides an exclusive list of the sources of authority for exclusion of evidence in federal court. State rules of professional conduct are not included in the list, nor are local rules of federal courts.
Contemporary Mission, Inc. v. Famous Music Corp. 一 Evidence need not be conclusive to be relevant.
Rule 403 and the Balancing Test
Even if evidence is relevant, it may be excluded in certain situations if its probative value is substantially outweighed by a danger of unfair prejudice or certain other concerns, such as confusing the issues, misleading the jury, unduly delaying the case, or presenting redundant evidence.
Old Chief v. U.S. 一 A district court abuses its discretion under Rule 403 if it spurns a defendant’s offer to concede a prior judgment and admits the full judgment record over the defendant’s objection, when the name or nature of the prior offense raises the risk of a verdict tainted by improper considerations, and when the purpose of the evidence is solely to prove the element of prior conviction.
Dollar v. Long Mfg., N.C., Inc. 一 “Unfair prejudice” as used in Rule 403 is not to be equated with testimony simply adverse to the opposing party. Virtually all evidence is prejudicial, or it is not material. The prejudice must be “unfair.”
Ballou v. Henri Studios, Inc. 一 A court should determine the probative value of evidence under the assumption that it is true, and then weigh that probative value against the danger of unfair prejudice, leaving to the jury the difficult choice of whether to credit the evidence.
U.S. v. Powers 一 Cautionary or limiting instructions generally obviate prejudice, particularly if the danger of prejudice is slight in view of the overwhelming evidence of guilt.
McQueeney v. Wilmington Trust Co. 一 In the absence of a showing of particularized danger of unfair prejudice, evidence must be admitted.
Douglass v. Hustler Magazine, Inc. 一 To pick out the 128 worst pictures from many years of a magazine, when there is no pretense that the pictures are a random or representative sample of the magazine’s contents, was to assail the senses and distract the mind. The prejudicial effect of the parade of filth in this slide show so clearly outweighed its probative value as to require exclusion under Rule 403.
Terry v. State 一 Photographs taken after an autopsy had been performed should have been excluded because they were only remotely connected with the crime and clearly served to inflame the minds of the jury.
U.S. v. McVeigh 一 Evidence on an alleged alternative perpetrator must be sufficient, on its own or in combination with other evidence, to show a nexus between the crime charged and the asserted alternative perpetrator.
Holmes v. South Carolina 一 A criminal defendant’s federal constitutional rights are violated by an evidence rule under which the defendant may not introduce evidence of third-party guilt if the prosecution has introduced forensic evidence that, if believed, strongly supports a guilty verdict.
Guam v. Shymanovitz 一 Generally, evidence of homosexuality is extremely prejudicial. Evidence implicating a defendant’s sexual orientation is particularly prejudicial when they are being tried on sex offense charges.
U.S. v. Curtin 一 A court does not properly exercise its balancing discretion under Rule 403 when it fails to place on the scales and personally examine and evaluate all that it must weigh.
Fusco v. General Motors Corp. 一 When the deliberate recreation of an event under staged conditions could easily seem to resemble the actual occurrence, there must be a foundational showing of substantial similarity in circumstances.
Nachtsheim v. Beech Aircraft Corp. 一 Evidence of other accidents in products liability cases is relevant to show notice to the defendant of the danger, to show existence of the danger, and to show the cause of the accident. However, before such evidence will be admitted, the proponent must show that the other accidents occurred under substantially similar circumstances.
Pandit v. American Honda Motor Co., Inc. 一 Evidence of the absence of similar accidents or claims is admissible as long as the proponent provides an adequate foundation.
Subsequent Remedial Measures
Under Rule 407, a plaintiff cannot introduce evidence of subsequent remedial measures by a defendant to show negligence, a product defect, or culpable conduct. However, this evidence may be admitted for certain purposes, such as impeaching a witness, showing ownership or control, or proving that precautions were feasible.
Flaminio v. Honda Motor Co., Ltd. 一 Rule 407 applies to strict liability cases.
Muzyka v. Remington Arms Co., Inc. 一 Evidence of a subsequent design change to a rifle should have been permitted for purposes of impeachment.
Cameron v. Otto Bock Orthopedic Industry, Inc. 一 The exceptions in Rule 407 for feasibility and control apply only if feasibility or control is controverted.
Diehl v. Blaw-Knox 一 Rule 407 does not bar evidence of remedial measures taken by a non-party.
Offers of Compromise
Rule 408 provides that offers of compromise generally cannot be admitted to prove or disprove the validity or amount of a disputed claim, nor can conduct and statements during compromise negotiations. However, this evidence may be admitted in narrow situations.
John McShain, Inc. v. Cessna Aircraft Co. 一 Rule 408 does not require the exclusion of evidence when offered for the purpose of proving bias or prejudice of a witness.
Davidson v. Beco Corp. 一 A trial court may allow the use of statements contained in settlement negotiations for the purpose of impeaching witnesses who give contrary testimony at trial.
Freidus v. First National Bank of Council Bluffs 一 Letters exchanged during settlement negotiations were admissible to negative a contention of undue delay.
U.S. v. Austin 一 Evidence related to an FTC settlement was admissible in a subsequent criminal case, including the terms of a consent decree and the defendant’s stipulation in the settlement admitting to the allegations in the FTC’s complaint.
Cates v. Morgan Portable Building Corp. 一 A settlement agreement is admissible to prove the parties’ undertakings in the agreement, should it be argued that a party broke the agreement.
Pierce v. F.R. Tripler & Co. 一 Rule 408 excludes evidence of settlement offers to prove liability for or the amount of a claim, regardless of which party attempts to offer the evidence.
Alpex Computer Corp. v. Nintendo Co., Ltd. 一 All that is needed for Rule 408 to apply is an actual dispute, or at least an apparent difference of opinion between the parties as to the validity of a claim.
Plea Bargains and Negotiations
Under Federal Rule of Evidence 410, with narrow exceptions, statements made in plea negotiations are not admissible against a defendant in a criminal case. A guilty plea that has been withdrawn, a nolo contendere plea, and statements in certain proceedings involving these pleas are also not admissible.
U.S. v. Udeagu 一 The statements of a defendant given in open court under oath in the presence of counsel under Federal Rule of Criminal Procedure 11 when admitting details of guilt could not be used at the defendant’s trial after the plea of guilty was withdrawn.
U.S. v. Robertson 一 In determining whether a discussion should be characterized as a plea negotiation, the trial court must determine whether the accused exhibited an actual subjective expectation to negotiate a plea at the time of the discussion, and whether their expectation was reasonable given the totality of the objective circumstances.
U.S. v. Swidan 一 A formal disavowal of the ability to bargain, which is so couched as to elicit a continued response, does not render an accused’s expectations unreasonable.
U.S. v. Mezzanatto 一 An agreement to waive the exclusionary provision of Rule 410 is valid and enforceable, absent some affirmative indication that the defendant entered the agreement unknowingly or involuntarily.
U.S. v. Burch 一 The Mezzanatto principles do not countenance drawing a distinction between permitting waivers for purposes of impeachment or rebuttal and permitting waivers for the prosecution's case-in-chief.
Proof of Liability Insurance
Federal Rule of Evidence 411 provides that a plaintiff generally cannot introduce evidence of liability insurance (or the lack thereof) to prove that a defendant was negligent or engaged in misconduct. However, a plaintiff can introduce liability insurance for purposes such as proving witness bias or showing ownership or control.
Bernier v. Board of County Road Commissioners for Ionia County 一 Should the nature of the defendant’s proofs be such that the jury might infer the defendant’s inability to pay a judgment, evidence that the defendant has liability insurance may become admissible as an exception to the general prohibition of insurance evidence contained in Rule 411.
Dobbins v. Crain Brothers, Inc. 一 The existence of insurance served as evidence of ownership and control of a barge, which could be considered by the jury under the exception clause to Rule 411.
Charter v. Chleborad 一 The fact that the defendant’s insurer employed a witness was admissible to show the possible bias of that witness.
Character Evidence and Witnesses
Rule 404 generally prevents evidence of a person’s character or character trait to show that they acted in accordance with it. In a criminal case, however, the defendant can introduce evidence regarding their character or the character of the alleged victim if that is pertinent to the case. Unless the defendant opens this door, the prosecution generally cannot use character evidence. Character evidence is admissible in a civil case when character is at issue.
Michelson v. U.S. 一 The law does not invest the defendant with a presumption of good character; it simply closes the whole matter of character, disposition, and reputation on the prosecution's case in chief. The defendant may introduce evidence tending to prove his good reputation, but, if he does so, it throws open the entire subject, and the prosecution may then cross-examine the defendant's witnesses to test their credibility and qualifications, and it may also introduce contradictory evidence.
Ginter v. Northwestern Mutual Life Ins. Co. 一 It is the intention of Rule 404(a) to exclude evidence of a character trait in civil cases, except when character is an element of the claim or defense, as in cases involving defamation.
Schafer v. Time, Inc. 一 In an action for defamation or libel, the issue of the plaintiff’s reputation and character scarcely can be avoided because the plaintiff typically seeks to recover compensation for damage to their reputation.
Arizona v. Elmer 一 When a defendant must show that he honestly believed that his actions were reasonable under the circumstances, this does not involve placing his character for honesty at issue.
U.S. v. Williams 一 When a detective’s testimony about the defendant’s nickname was completely unrelated to any of the other proof against the defendant, the only possible purpose in eliciting the testimony was to create an impression in the minds of the jurors that the defendant was known by the police to be an unsavory character or a criminal. This was tantamount to testimony about a defendant’s character that is proffered to show the probability that the defendant acted in conformity with that character.
U.S. v. Keiser 一 Victim character evidence introduced to support a claim of self-defense or defense of others should be limited to reputation or opinion evidence.
State v. Hicks 一 The prosecution could not present evidence showing the peacefulness of the victim to anticipate a defense of self-defense.
U.S. v. Holt 一 By calling witnesses to testify regarding their reputation as law-abiding, a defendant opens the door for the prosecution to examine the witnesses’ familiarity with their reputation.
U.S. v. Bruguier 一 When defense witnesses testify in the form of an opinion about the defendant’s character, the government can explore the witnesses’ basis for holding such an opinion by inquiring about a relevant fact.
U.S. v. Monteleone 一 Before conducting “specific act” cross-examination of a defendant’s reputation witness, the government must demonstrate a good-faith factual basis for the incidents raised during cross-examination, and the incidents must be relevant to the character traits at issue. To meet the first requirement, the prosecutor must not only establish a good-faith belief that the incidents actually occurred but also possess a good-faith belief that the described events are of a type likely to have become a matter of general knowledge, currency, or reputation in the community.
Prior Bad Acts
Evidence of prior bad acts, such as a criminal record, generally cannot be admitted to show that a person acted in accordance with the character suggested by the bad acts. However, this evidence can be admitted for purposes not related to character, such as showing intent, motive, opportunity, or identity.
U.S. v. Beechum 一 When extrinsic offense evidence is relevant to an issue such as intent, it may well be that the evidence has probative force that is not substantially outweighed by its inherent prejudice. If so, the evidence may be admissible.
U.S. v. Hearst 一 When a defendant raised the defense of duress, and the government was required to show that the defendant was not acting under duress, the government could present evidence that tended to show that the defendant willingly engaged in other criminal activity with persons of the same group at a time not unduly remote.
U.S. v. Mejia-Uribe 一 Other crimes evidence is admissible if it is relevant to a material issue, of crimes similar in kind and reasonably close in time to the crime charged, sufficient to support a jury finding that the defendant committed the other crimes, and more probative than prejudicial. However, it is not admissible if it tends to prove only the defendant’s criminal disposition.
U.S. v. Crowder 一 Despite a defendant’s unequivocal offer to stipulate to an element of an offense, Rule 404(b) does not preclude the government from introducing evidence of other bad acts to prove that element.
U.S. v. Potter 一 Evidence was admissible under Rule 404(b) to prove motive and lack of good-faith intent in failing to comply with usual professional practices and legitimate medical purposes.
U.S. v. Carroll 一 Prior bad acts can be used to show a plan or pattern when a defendant’s prior bad acts are part of a broader plan or scheme relevant to the charged offense, or when the pattern and characteristics of the crimes are so unusual and distinctive as to be like a signature.
U.S. v. Hilgeford 一 When the evidence of the defendant’s prior conduct is intricately related or inextricably tied to the facts in the case, it is not subject to Rule 404(b).
U.S. v. Gomez 一 A court should not just ask whether the proposed other-act evidence is relevant to a non-propensity purpose but how exactly the evidence is relevant to that purpose—or more specifically, how the evidence is relevant without relying on a propensity inference.
Huddleston v. U.S. 一 “Similar” acts evidence should be admitted if there is sufficient evidence to support a finding by the jury that the defendant committed the similar act. The district court need not make a preliminary finding that the government has proved the “other act” by a preponderance of the evidence.
Habit Evidence
Rule 406 distinguishes between evidence of character and evidence of habit or routine practice. This evidence may be admissible to show that a person or organization acted in accordance with the habit or routine practice on a certain occasion.
Halloran v. Virginia Chemicals, Inc. 一 When the issue involves proof of a deliberate and repetitive practice, a party should be able, by introducing evidence of such habit or regular usage, to allow the inference of its persistence, and hence negligence on a particular occasion.
Perrin v. Anderson 一 “Habit” is a regular practice of meeting a particular kind of situation with a certain type of conduct, or a reflex behavior in a specific set of circumstances.
U.S. v. Angwin 一 Merely indicating that a person takes a non-confrontational course of action in dangerous situations in general does not describe their conduct with sufficient particularity to be probative of whether they acted in conformity with that general practice on a particular occasion.
Special Rules in Sexual Misconduct Cases
Rule 412 generally prevents a party from introducing evidence of the sexual behavior or predisposition of an alleged victim in cases that involve alleged sexual misconduct. Rules 413-415 provide that prior instances of sexual assault or child molestation by a defendant may be admissible in criminal and civil cases involving the same type of misconduct.
Judd v. Rodman 一 When evidence of the plaintiff’s prior sexual relationships and the type of protection used during sexual intercourse was highly relevant to the defendant’s liability, the court did not abuse its discretion in admitting evidence of the plaintiff’s prior sexual history.
U.S. v. Bear Stops 一 Evidence of sexual abuse of the alleged victim by persons other than the defendant was constitutionally required to be admitted to provide an alternative explanation for the characteristics identified as frequently observed in sexually abused children and exhibited by the alleged victim, and to provide an alternative explanation to testimony regarding the alleged victim’s bloody underwear.
Wood v. Alaska 一 While a rape victim’s sexual history with others only goes to show a generalized attitude toward sex that says little if anything about the victim’s attitude toward sex with the defendant, the victim’s prior acts with the defendant can shed considerable light on her attitude toward having sex with him.
U.S. v. Lemay 一 Rule 403 remains applicable to evidence introduced under Rule 414 and, if conscientiously applied, will protect defendants from propensity evidence so inflammatory as to jeopardize their right to a fair trial.
Lay Witnesses
Under Rule 701, a lay witness can testify about their opinion if it is rationally based on their perception, and this would help the jury understand their testimony or determine a fact at issue. However, lay witnesses cannot testify about scientific, technical, or other specialized knowledge.
Gorby v. Schneider Tank Lines, Inc. 一 Rule 701 assumes that a lay witness will give their testimony by stating their observations in as raw a form as practicable, but it permits the witness to resort to inferences and opinions when the opinions are based on first-hand knowledge or observations.
U.S. v. Hoffner 一 Lay testimony was properly excluded when the opinions of witnesses could not have been based on any concrete facts but amounted only to speculative conclusions.
Kostelecky v. NL Acme Tool/NL Industries, Inc. 一 Evidence that merely tells the jury what result to reach is not sufficiently helpful to the trier of fact to be admissible.
U.S. v. Koon 一 Lay testimony is admissible when it could help the jury resolve the ultimate issue, as long as it does not settle the issue in and of itself.
U.S. v. Meises 一 Testimony from a law enforcement agent, not based on personal knowledge, describing the roles played in a drug conspiracy by individual defendants is impermissible testimony from the agent that each of the defendants was guilty of the conspiracy charged.
U.S. v. Yazzie 一 Since age is a matter on which everyone has an opinion, it is particularly appropriate for a lay witness to express an opinion on the subject. When the issue is whether the defendant’s opinion about another person’s age was reasonable, it is relevant that others having a similar opportunity to observe that person formed an opinion as to their age that was similar to the opinion that the defendant claimed to have formed.
Asplundh Manufacturing Division v. Benton Harbor Engineering 一 A proponent of technical lay opinion testimony must show that the testimony is based on sufficient experience or specialized knowledge and also show a sufficient connection between such knowledge or experience and the lay opinion, such that the testimony may be fairly considered to be rationally based on the perception of the witness and truly helpful to the jury.
Expert Witnesses
Rule 702 provides that a qualified expert witness can testify about scientific, technical, or other specialized matters that will assist the jury if their testimony is based on sufficient facts or data, and it is a product of reliable principles and methods reliably applied to the case. Meanwhile, Rule 703 provides the bases for an expert's opinion testimony. Rule 704 describes expert testimony related to ultimate issues.
U.S. v. Figueroa-Lopez 一 Trial courts must ensure that experts are qualified to render their opinions and that these opinions will assist the jury.
Frye v. U.S. 一 While courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.
Daubert v. Merrell Dow Pharmaceuticals, Inc. 一 Faced with a proffer of expert scientific testimony under Rule 702, the trial judge must make a preliminary assessment of whether the testimony’s underlying reasoning or methodology is scientifically valid and properly can be applied to the facts at issue. Considerations that bear on this inquiry include whether the theory or technique in question can be and has been tested, whether it has been subjected to peer review and publication, its known or potential error rate and the existence and maintenance of standards controlling its operation, and whether it has attracted widespread acceptance within a relevant scientific community.
General Electric Co. v. Joiner 一 Abuse of discretion is the proper standard by which to review a district court’s decision to admit or exclude expert scientific evidence.
Kumho Tire Co. v. Carmichael 一 The Daubert gatekeeping obligation applies not only to scientific testimony but also to other expert testimony. In determining whether particular expert testimony is reliable, the trial court should consider the specific Daubert factors when they are reasonable measures of reliability.
U.S. v. Baines 一The Rule 702 analysis is flexible, and the Daubert factors are meant to be helpful, rather than definitive. Not all of the factors will be pertinent in every case.
Nimely v. City of New York 一 Expert opinions that constitute evaluations of witness credibility are inadmissible under Rule 702, even when rooted in scientific or technical expertise.
Berry v. City of Detroit 一 The issue with regard to expert testimony is not the qualifications of a witness in the abstract, but whether those qualifications provide a foundation for a witness to answer a specific question.
U.S. v. Ferri 一 Any objections to the "novelty" of the methods used by an expert witness go not to admissibility, but to the weight to be accorded their opinion by the factfinder.
Bogosian v. Mercedes-Benz of North America, Inc. 一 The facts of the case must be tied to the opinion proffered by the expert. (An expert witness could not testify when their testimony essentially contradicted the testimony of the party who called them.)
Westberry v. Gislaved Gummi AB 一 While precise information concerning the exposure necessary to cause specific harm to humans and exact details pertaining to the plaintiff's exposure are beneficial, such evidence is not always necessary to demonstrate that a substance is toxic to humans given substantial exposure and need not invariably provide the basis for an expert's opinion on causation.
In re Paoli RR Yard PCB Litigation 一 When doctors based their conclusion as to a plaintiff's symptoms solely on the plaintiff's self-report of illness in preparation for litigation, the district court acted within its discretion in excluding the testimony as based on an unreliable source of information.
U.S. v. Scop 一 An expert's repeated statements embodying legal conclusions exceeded the permissible scope of opinion testimony.
U.S. v. Buchanan 一 Opinion testimony was admissible when it was a mere explanation of the expert's analysis of facts that would tend to support a jury finding on the ultimate issue.
Defining the Hearsay Rule
Under Rule 801, hearsay is an out-of-court statement that is offered to prove the truth of the matter asserted. Evidence that falls within this category generally is not admissible unless a Federal Rule of Evidence or a federal law provides otherwise. An out-of-court statement may be offered for purposes other than proving its truth.
U.S. v. Brown 一 The unrefreshed, sometimes borrowed memory of a witness testifying on the basis of what they had been told by others is inadmissible under the hearsay rule.
Vinyard v. Vinyard Funeral Home, Inc. 一 The hearsay rule does not apply when, regardless of the truth or falsity of a statement, the fact that it has been made is relevant.
McClure v. State 一 When an utterance is offered to show the state of mind that ensued in another person in consequence of the utterance, no assertive or testimonial use is to be made of it, and the utterance is admissible under the hearsay rule.
U.S. v. Zenni 一 Subdivision (a)(2) of Rule 801 removes implied assertions from the definition of “statement” and consequently from the operation of the hearsay rule.
U.S. v. Freeman 一 An out of court statement is not hearsay if it is offered for the limited purpose of explaining why a government investigation was undertaken.
Hearsay Exclusions
Exclusions from the hearsay rule include prior inconsistent statements, prior consistent statements, and prior identification statements of witnesses. Exclusions also cover admissions by a party, admissions adopted by a party, or admissions by agents or co-conspirators.
Tome v. U.S. 一 Rule 801(d)(1)(B) permits the introduction of a declarant’s consistent out-of-court statements to rebut a charge of recent fabrication or improper influence or motive only when those statements were made before the charged fabrication, influence, or motive.
U.S. v. Owens 一 Rule 802 is not violated by the admission of a prior, out-of-court identification statement of a witness who is unable, because of memory loss, to explain the basis for the identification.
Mahlandt v. Wild Canid Survival & Research Center, Inc. 一 There is no implied requirement in Rule 801(d)(2)(D) that the declarant have personal knowledge of the facts underlying their statement.
U.S. v. Hoosier 一 Adoption or acquiescence may be manifested in any appropriate manner. When silence is the basis, the theory is that the person would, under the circumstances, protest the statement made in their presence, if untrue. The decision in each case calls for an evaluation in terms of probable human behavior.
Hill v. Spiegel, Inc. 一 The mere fact that each declarant was a manager within the employer’s organization was insufficient to establish that matters bearing upon an employee’s discharge were within the scope of their employment.
Pappas v. Middle Earth Condominium Ass’n 一 Circumstantial evidence may establish the scope, as well as the existence, of the agency relationship.
U.S. v. Bonds 一 To find an agency relationship, there must be at least some manifestation of assent to the principal’s right to control.
Bourjaily v. U.S. 一 When the existence of a conspiracy and the non-offering party’s involvement in it are disputed, the offering party must prove these facts by a preponderance of the evidence. In making a preliminary factual determination under Rule 801(d)(2)(E), a court may examine the hearsay statements sought to be admitted.
U.S. v. Tellier 一 For statements to be admissible under the co-conspirator exclusion, there must be some independent corroborating evidence of the defendant’s participation in the conspiracy.
U.S. v. Silverman 一 When the proponent of the co-conspirator's statement offers no additional proof of the defendant's knowledge of and participation in the conspiracy, the statement must be excluded from evidence. On the other hand, when some additional proof is offered, the court must determine whether such proof, viewed in light of the co-conspirator's statement itself, demonstrates by a preponderance of the evidence that the defendant knew of and participated in the conspiracy.
City of Tuscaloosa v. Harcros Chemicals, Inc. 一 A statement that merely discloses the existence of a conspiracy to a non-conspirator, with no intention of recruiting the auditor into the conspiracy, does not further the conspiracy.
U.S. v. Ciresi 一 A declarant's recorded statements to a third party about the defendant were admissible as non-hearsay when they were all made during the course of and in furtherance of an ongoing, multi-phase conspiracy in which the defendant was an active member.
U.S. v. El-Mezain 一 Admissibility under the co-conspirator exclusion does not turn on the criminal nature of the endeavor.
Witness Unavailability and Hearsay
Under Rule 804(a), a witness is unavailable when they are exempt due to a privilege, refuse to testify despite a court order, testify that they do not remember the subject matter, or cannot be brought to court for various reasons. If a witness is found to be unavailable, an exception to the hearsay rule applies if their testimony falls within one of the categories listed in Rule 804(b).
U.S. v. Pelton & Rich 一 The proponent of the evidence has the burden of establishing that the declarant will invoke their Fifth Amendment privilege and thus be unavailable to testify. They must give the court more than a speculative basis for determining whether the declarant is available.
U.S. v. Amaya 一 Although the duration of an illness is a proper element of unavailability, the establishment of permanence as to the particular illness is not an absolute requirement. The duration of the illness need only be in probability long enough so that, with proper regard to the importance of the testimony, the trial cannot be postponed.
U.S. v. Faison 一 The trial judge’s discretion in granting an adjournment for witnesses unavailable due to illness must be guided on the one hand by the policy of favoring live testimony and confrontation in the presence of the factfinder and, on the other, by the policy of prompt disposition of criminal trials.
Former Testimony and Hearsay
When a declarant is unavailable, their former testimony may not be considered inadmissible hearsay if it was provided at a proceeding at which the party against whom the testimony was offered had an opportunity and a similar motive to develop the testimony. In civil cases, former testimony may be offered against a successor in interest.
U.S. v. Salerno 一 There is no implicit limitation in Rule 804(b)(1) permitting the “similar motive” requirement to be waived in the interest of adversarial fairness.
U.S. v. DiNapoli 一 The test of similar motive turns not only on whether the questioner is on the same side of the same issue at both proceedings, but also on whether the questioner had a substantially similar interest in asserting that side of the issue.
In re Johns-Manville / Asbestosis Cases 一 Congress did not intend to use “predecessor in interest” in the strict sense of corporate privity.
U.S. v. Duenas 一 When a defendant challenged the substance of statements at a second proceeding after challenging the circumstances in which they were given at the first proceeding, their motives were substantially dissimilar.
Dying Declarations and Hearsay
A statement that would otherwise be considered hearsay will be admissible in a homicide case or a civil action if the declarant is unavailable, and the statement is a dying declaration. This means that the declarant made the statement under a belief of imminent death, and the statement involved the cause or circumstances of the death.
Shepard v. U.S. 一 To make out a dying declaration, the declarant must have spoken without hope of recovery and in the shadow of impending death, and this state of mind must be exhibited in the evidence, and not left to conjecture.
People v. Nieves 一 In deciding whether a statement was a dying declaration, a court may consider any statements made by the declarant as to their condition or their expectations, any statements made by medical personnel to the declarant as to the severity of their injury, the nature and severity of the wound as it appeared to the declarant, whether their condition appeared to be improving or declining when the declaration was made, and whether any actions associated with an expectation of imminent death were taken.
State v. Quintana 一 What is required for a dying declaration to be admissible is that the declarant have such a belief that they are facing death as to remove ordinary worldly motives for misstatement. The court may consider the totality of the circumstances, including the presence or absence of motive to falsify and the manner in which the statement was volunteered or elicited.
Statements Against Interest and Hearsay
A statement that would otherwise be considered hearsay is admissible if the declarant is unavailable, and the statement is so adverse to their interest that a reasonable person in their situation would not have made the statement unless they believed that it was true.
Williamson v. U.S. 一 Rule 804(b)(3) does not allow the admission of non-self-inculpatory statements, even if they are made within a broader narrative that is generally self-inculpatory.
U.S. v. Katsougrakis 一 While the statement of an unavailable declarant will be excluded under the Confrontation Clause unless the court is satisfied that it bears adequate indicia of reliability, a hearsay statement that satisfies the penal interest exception usually will survive Confrontation Clause scrutiny.
U.S. v. Silverstein 一 The corroboration requirement in Rule 804(b)(3) probably allows a judge to look beyond the evidence offered in corroboration of the statement to evidence either directly contradicting the statement or contradicting the evidence offered to corroborate it.
Forfeiture of Hearsay Objection
A statement that would otherwise be considered hearsay will be admissible if the declarant is unavailable because the party against whom the statement will be offered engaged in misconduct to ensure that the declarant was unavailable.
U.S. v. Cherry 一 A defendant may be deemed to have waived a hearsay objection if they participated directly in planning or procuring the declarant’s unavailability through wrongdoing, or the wrongful procurement was in furtherance, within the scope, and reasonably foreseeable as a necessary or natural consequence of an ongoing conspiracy.
Present Sense Impressions and Hearsay
Regardless of whether a declarant is available, a statement that otherwise would be considered hearsay may be admissible if it describes an event or condition perceived by the declarant, and the statement was made while or immediately after the declarant perceived it.
U.S. v. Campbell 一 Substantial contemporaneity of event and statement negatives the likelihood of deliberate or conscious misrepresentation.
U.S. v. Parker 一 There is no per se rule indicating what time interval is too long under Rule 803(1).
Meder v. Everest & Jennings, Inc. 一 A statement cannot be admitted as a present sense impression when it is impossible to determine whether the maker of the statement was an eyewitness of what occurred at the scene.
Excited Utterances and Hearsay
Regardless of whether a declarant is available, a statement that otherwise would be considered hearsay may be admissible if it was related to a startling event or condition, and the statement was made while the declarant was still under the stress of excitement of the event.
U.S. v. Boyce 一 For the excited utterance exception to apply, the proponent must demonstrate that a startling event occurred, the declarant made the statement under the stress of the excitement caused by the startling event, and the declarant’s statement related to the startling event.
U.S. v. Napier 一 Although in most cases the startling events that prompt spontaneous exclamations are accidents and assaults, there is no reason to restrict the exception to those situations.
U.S. v. Marrowbone 一 To determine whether a declarant was under the stress of excitement when they made a statement, a court should consider the lapse of time between the startling event and the statement, whether the statement was made in response to an inquiry, the age of the declarant, the characteristics of the event, the physical and mental condition of the declarant, and the subject matter of the statements.
Miller v. Keating 一 Statements by unidentified declarants are not ipso facto inadmissible, but a party seeking to introduce such a statement carries a burden heavier than when the declarant is identified to demonstrate the statement’s circumstantial trustworthiness.
State of Mind and Hearsay
Regardless of whether a declarant is available, a statement that otherwise would be considered hearsay may be admissible if it concerns a physical, mental, or emotional condition that existed at the time of the statement. However, this exception generally does not cover statements of memory or belief that are used to prove the fact remembered or believed.
Adkins v. Brett 一 When the intention, feelings, or other mental state of a certain person at a particular time, including bodily feelings, is material to the issues under trial, evidence of that person’s declarations at the time that indicated their mental state may be admitted.
Mutual Life Ins. Co. v. Hillmon 一 The intention of a person, when material, may be proved by contemporaneous declarations in their letters written under circumstances precluding a suspicion of misrepresentation.
Shepard v. U.S. 一 Declarations of deceased persons that may be used to show their intentions for the future must be sharply distinguished from declarations of memory merely, and from those that recite the past conduct of other persons.
U.S. v. Lawal 一 Relevant declarations that fall within the parameters of the state of mind exception are categorically admissible, even if they are self-serving and made under circumstances that undermine their trustworthiness.
Business and Public Records and Hearsay
Reports and records kept in the course of regularly conducted business activities may be admissible if a custodian or qualified witness can establish a foundation that the records were properly kept, and the circumstances of their preparation do not suggest that they are untrustworthy. In addition, the hearsay rule generally does not prevent the admission of reports by public officers and agencies.
Johnson v. Lutz 一 The business records exception was not intended to permit the receipt in evidence of entries based on voluntary hearsay statements made by third parties not engaged in the business or under any duty in relation to it.
U.S. v. Vigneau 一 The business records exception does not embrace statements contained within a business record that were made by a person who was not a part of the business if the embraced statements are offered for their truth. (This case essentially reaffirmed Johnson.)
U.S. v. Bland 一 Records kept pursuant to federal regulations governing firearms transaction records satisfy the requirements of Rule 803(6) that the record be made at or near the time of the event, recorded by a person with knowledge, and kept in the regular course of business.
Palmer v. Hoffman 一 The fact that a company makes a business out of recording its employees’ versions of their accidents does not put those statements in the class of records made “in the regular course” of the business.
U.S. v. Oates 一 Police and law enforcement reports are not admissible against defendants in criminal cases.
U.S. v. Grady 一 Law enforcement reports were admissible in a criminal case when they did not concern observations by officers of the defendants’ commission of crimes but simply related to the routine function of recording serial numbers and receipt of certain weapons.
Beech Aircraft Corp. v. Rainey 一 Statements in the form of opinions or conclusions are not by that fact excluded from the scope of the public records exception.
The Confrontation Clause
The Sixth Amendment of the U.S. Constitution provides that a defendant in a criminal case has a right to “be confronted with the witnesses against him.” The U.S. Supreme Court has further articulated this right, explaining that it applies only to testimonial statements and defining the scope of these statements.
Crawford v. Washington 一 When testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is confrontation.
U.S. v. Owens 一 The Confrontation Clause guarantees an opportunity for effective cross-examination but not successful cross-examination. It is satisfied when the defendant has a full and fair opportunity to bring out the witness’ bad memory and other facts tending to discredit their testimony.
Davis v. Washington 一 Statements are testimonial when the circumstances objectively indicate that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.
Melendez-Diaz v. Massachusetts 一 Affidavits reporting the results of forensic analysis are testimonial, rendering the affiants “witnesses” subject to the defendant’s right of confrontation under the Sixth Amendment.
Michigan v. Bryant 一 An identification and description of a shooter and the location of a shooting were not testimonial statements for Confrontation Clause purposes because they had a primary purpose to enable police assistance to meet an ongoing emergency.
Bullcoming v. New Mexico 一 If an out-of-court statement is testimonial in nature, it may not be introduced against the accused at trial unless the witness who made the statement is unavailable, and the accused has had a prior opportunity to confront that witness.
Williams v. Illinois 一 Out-of-court statements that are related by an expert solely for the purpose of explaining the assumptions on which that opinion rests are not offered for their truth and thus fall outside the scope of the Confrontation Clause.
Ohio v. Clark 一 The Confrontation Clause does not necessarily bar the introduction of all out-of-court statements that support the prosecution’s case. Instead, a court asks whether a statement was given with the primary purpose of creating an out-of-court substitute for trial testimony.
Bruton v. U.S. 一 The conviction of a defendant at a joint trial should be set aside even though the jury was instructed that a co-defendant’s confession inculpating the defendant should be disregarded in determining their guilt or innocence.
Tennessee v. Street 一 The non-hearsay aspect of an accomplice's confession (not to prove what happened at the murder scene but to prove what happened when the defendant confessed) raises no Confrontation Clause concerns.
Cruz v. New York 一 When a non-testifying co-defendant's confession facially incriminating the defendant is not directly admissible against the defendant, the Confrontation Clause bars its admission at their joint trial, even if the jury is instructed not to consider it against the defendant, and even if the defendant's own confession is admitted against them.
Gray v. Maryland 一 A confession that substituted blanks and the word “delete” for the defendant’s proper name fell within the class of statements to which the Bruton rule applies.
Richardson v. Marsh 一 The Confrontation Clause is not violated by the admission of a non-testifying co-defendant’s confession with a proper limiting instruction when the confession is redacted to eliminate not only the defendant’s name but also any reference to their existence.
Coy v. Iowa 一 A screen placed between the defendant and the complaining witnesses, which blocked the defendant from their sight, violated the defendant’s Sixth Amendment right to confront the witnesses against him.
Maryland v. Craig 一 The right to confront accusatory witnesses may be satisfied without a physical, face-to-face confrontation at trial only when the denial of such a confrontation is necessary to further an important public policy, and only when the testimony’s reliability is otherwise assured.
Giles v. California 一 Unconfronted testimony may not be admitted on a theory of forfeiture without a showing that the defendant intended to prevent a witness from testifying.
Impeachment
A witness may be impeached by strategies such as showing that they have a history of lying, their prior statements are inconsistent with their testimony, other facts contradict their testimony, or they have a motive to provide false testimony. In limited situations, jurors can testify to impeach their verdict.
U.S. v. Abel 一 Relevant, competent evidence that tends to show bias on the part of a witness is not inadmissible just because it also tends to show that the witness is a liar.
Luce v. U.S. 一 To raise and preserve for review the claim of improper impeachment with a prior conviction, a defendant must testify.
Ohler v. U.S. 一 A defendant who preemptively introduces evidence of a prior conviction on direct examination may not challenge the admission of such evidence on appeal.
Doyle v. Ohio 一 A prosecutor may not seek to impeach a defendant’s exculpatory story, told for the first time at trial, by cross-examining the defendant about their failure to have told the story after receiving Miranda warnings at the time of their arrest.
Davis v. Alaska 一 The right of confrontation is paramount to a state policy of protecting juvenile offenders, and any temporary embarrassment to a witness by the disclosure of their juvenile court record and probation status is outweighed by the defendant’s right effectively to cross-examine a witness.
Delaware v. Van Arsdall 一 A criminal defendant states a violation of the Confrontation Clause by showing that they were prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness. However, the constitutionally improper denial of a defendant’s opportunity to impeach a witness for bias is subject to harmless error analysis. Whether an error is harmless depends on factors such as the importance of the witness’ testimony, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony on material points, the extent of cross-examination otherwise permitted, and the overall strength of the prosecution’s case.
Olden v. Kentucky 一 Speculation as to the effect of jurors’ racial biases cannot justify the exclusion of cross-examination with strong potential to demonstrate the falsity of a witness’ testimony.
U.S. v. Caldwell 一 When weighing the probative value against the prejudicial effect under the Rule 609 balancing test for prior felony convictions offered to impeach a witness who is also the defendant in a criminal trial, a court should consider the kind of crime involved, when the conviction occurred, the importance of the defendant's testimony to the case, and the importance of the credibility of the defendant.
U.S. v. Brackeen 一 For the purpose of the rule allowing impeachment of a defendant by any crime involving dishonesty, the meaning of dishonesty covers only those crimes that involve deceit.
U.S. v. Beauchamp 一 Extrinsic evidence to disprove a fact to which a witness testified is admissible when it satisfies the Rule 403 balancing test and is not barred by any other rule of evidence.
U.S. v. Pierre 一 In deciding whether a prior consistent statement may be used to rehabilitate the credibility of a witness, the issue ought to be whether the statement has some rebutting force beyond the mere fact that the witness has repeated on a prior occasion a statement consistent with their trial testimony.
Tanner v. U.S. 一 Substance abuse is not an improper outside influence about which jurors may testify to impeach their verdict.
The Attorney-Client Privilege
Communications between an attorney and a client are shielded if the client is seeking legal advice from the attorney, and there is a reasonable expectation of confidentiality. A client can waive the attorney-client privilege implicitly or explicitly, or through an inadvertent disclosure.
Upjohn Co. v. U.S. 一 The attorney-client privilege exists to protect not only the giving of professional advice to those who can act on it, but also the giving of information to the lawyer to enable them to give sound and informed advice. However, the privilege only protects disclosure of communications, rather than disclosure of the underlying facts.
U.S. v. Kovel 一 What is vital to the attorney-client privilege is that the communication be made in confidence for the purpose of obtaining legal advice from the lawyer.
Calvin Klein Trademark Trust v. Wachner 一 The attorney-client privilege protects communications between a client and an attorney, but not communications that prove important to an attorney’s legal advice to a client.
Garner v. Wolfinbarger 一 While a corporation is not barred from asserting the attorney-client privilege merely because those demanding information enjoy the status of stockholders, the availability of the privilege in a lawsuit between the corporation and its stockholders is subject to the right of the stockholders to show cause why it should not be invoked.
Swidler & Berlin v. U.S. 一 The attorney-client privilege survives the death of the client.
In re County of Erie 一 The privilege of non-disclosure is not lost merely because relevant non-legal considerations are expressly stated in a communication that also includes legal advice. A court must consider whether the predominant purpose of the communication is to render or solicit legal advice.
In re Sealed Case 一 The attorney-client privilege is lost even if the disclosure is inadvertent.
In re Shargel 一 Client identity and fee information are not privileged, outside special circumstances.
U.S. v. Bilzerian 一 The attorney-client privilege may implicitly be waived when a defendant asserts a claim that in fairness requires an examination of protected communications.
Spousal Privileges
The adverse testimonial spousal privilege shields a person from being forced to testify against their spouse. Meanwhile, the confidential communications spousal privilege covers these communications between spouses.
Trammel v. U.S. 一 The witness-spouse alone has a privilege to refuse to testify adversely; they may be neither compelled to testify nor foreclosed from testifying.
In re Witness Before the Grand Jury (Carter) 一 Since the purpose of the adverse testimonial privilege is to protect vital marriages from the possible harmful effect of compelled testimony, the privilege has no relevance to marriages that are over or damaged beyond repair.
U.S. v. Neal 一 Without a showing that the defendant was aware that someone besides his wife was listening, the government cannot overcome the presumption of confidentiality that attaches to marital communications.
The Psychotherapist-Patient Privilege
The psychotherapist-patient privilege covers communications between patients and psychiatrists, psychologists, and licensed social workers in the course of psychotherapy.
Jaffee v. Redmond 一 A privilege protecting confidential communications between a psychotherapist and their patient promotes sufficiently important interests to outweigh the need for probative evidence.
Tarasoff v. Regents of the University of California 一 When a therapist determines, or pursuant to the standards of their profession should determine, that their patient presents a serious danger of violence to another person, they incur an obligation to use reasonable care to protect the intended victim against such danger.
The Executive Privilege
A limited privilege may extend to communications regarding high-level policy issues in the executive branch, but this privilege may be overcome by countervailing concerns.
U.S. v. Nixon 一 When a claim of presidential privilege regarding materials subpoenaed for use in a criminal trial is based on a generalized interest in confidentiality, this generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial and the demands of due process in the fair administration of criminal justice.
The First Amendment and Reporter Shields
The First Amendment does not create a privilege for members of the media who seek to shield their sources during a criminal investigation.
Branzburg v. Hayes 一 The First Amendment does not relieve a newspaper reporter of the obligation to respond to a grand jury subpoena and answer questions relevant to a criminal investigation. Therefore, the First Amendment does not afford a reporter a constitutional testimonial privilege for an agreement that they make to conceal facts relevant to a grand jury’s investigation of a crime or to conceal the criminal conduct of their source or evidence of it.
In re Miller 一 There is no First Amendment privilege that protects journalists’ confidential sources in the context of a grand jury investigation. If any federal common law privilege exists, it is not absolute.
Authentication of Documents and the Best Evidence Rule
The authentication required to introduce a document into evidence involves determining whether there is sufficient evidence for a reasonable juror to believe that the document is what the proponent claims it to be. When the content of a document is at issue, the original document generally must be provided.
U.S. v. McGlory 一 Authentication based on circumstantial evidence requires only a prima facie showing to the court of authenticity.
U.S. v. Grant 一 A break in the chain of custody will not necessarily lead to the exclusion of evidence. The ultimate question is whether the authentication testimony is sufficiently complete to convince the court that it is improbable that the original item had been exchanged with another or otherwise tampered with.
DeMarco v. Ohio Decorative Products, Inc. 一 When a party conducted a reasonably diligent search for the original copies of a contract in good faith, the futility of the search provided sufficient proof that all the copies were lost or destroyed.
This outline has been compiled by the Justia team for solely educational purposes and should not be treated as an independent source of legal authority or a summary of the current state of the law. Students should use this outline as a supplement rather than a substitute for course-specific outlines.
