Detailed Table of Contents

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1 Detailed Table of Contents Editors Note...iii Preface...v General Table of Contents...vii Detailed Table of Contents...ix Table of Cases... xxv Ch a p t e r On e Overview... 1 A. What is Evidence The Study of the Rules of Evidence Evidence Logic Maps Scope of the Text Features of the Casebook... 3 Logic Maps... 4 Electronic Casebook with Hyperlinks... 4 Cases, Statutes and Articles... 4 Legal Terminology... 4 Online Materials... 4 Text Boxes... 4 Names of Justices and Other Judges... 6 Court Websites... 6 Organizational and Government Websites... 6 Internal Cross-References... 6 FLEX Cases... 6 Case Excerpts... 7 Statutes and Rules... 7 Points for Discussion, Hypotheticals, and Perspective and Analysis... 8 Executive Summaries... 8

2 x Evidence A Contemporary Approach Ch a p t e r Tw o The Process of Proof and the Structure of Trial... 9 A. Introduction Witnesses and Physical Evidence... 9 Examples of Live Witness Testimony Examples of Tangible Physical Evidence: Real Examples of Tangible Physical Evidence: Demonstative Direct and Circumstantial Evidence B. The Role of the Judge The Time Limits of Presenting Evidence Rule 102. Purpose and Construction Rule 403. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time Rule 611. Mode and Order of Interrogation and Presentation United States v. Reaves Points for Discussion The Order of Witnesses and Their Testimony Stone v. Peacock Points for Discussion Comments on the Evidence Yates v. U.S Points for Discussion Questioning Witnesses Rule 614. Calling and Interrogation of Witnesses by Court Crandell v. United States Points for Discussion C. The Order of Proceeding Pretrial Conferences Pretrial Motions Selection of the Jury Opening Statements Presentation of the Evidence: Plaintiff s/prosecution s Case in Chief Direct Examination Cross-Examination Redirect Examination Objections Rule 103. Rules on Evidence Offers of Proof... 31

3 Table of Contents xi 6. Motions for Judgment as a Matter of Law Defendant s Case in Chief Rebuttal and Surrebuttal Closing Argument Jury Instructions Deliberations, Verdict, Judgment Executive Summary Ch a p t e r Th r e e Relevance A Primer A. Introduction...37 B. Definition of Relevant Evidence Rule 401. Definition of Relevant Evidence Rule 402. Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible C. Determining Relevant Evidence...39 People v. Adamson Perspective and Analysis Points for Discussion D. Exclusion of Relevant Evidence F.R.E Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible Rule Logic Map F.R.E Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion or Waste of Time Unfair Prejudice Other Less Frequently Used Counterweights Conducting the Balancing Test Rule 403 Map Carter v. Hewitt Old Chief v. United States Points for Discussion Judicial Determination of Preliminary Questions Rule 104. Preliminary Questions Judicial Determination of Conditional Relevancy Rule 104. Preliminary Questions Huddleston v. United States Points for Discussion Reverse Balancing of Rule Executive Summary... 67

4 xii Evidence A Contemporary Approach Ch a p t e r Fo u r Qualification of a Fact Witness A. Introduction...71 B. General Rule of Competency...72 Rule 601. General Rule of Competency C. Mentally Incapacitated Witnesses...72 United States v. Roach Points for Discussion D. Child Witnesses...75 Wheeler v. United States Points for Discussion E. Previously Hypnotized Witnesses...78 Rock v.arkansas Points for Discussion F. A Witness s Religious Beliefs...82 Rule 610. Religious Beliefs or Opinions Firemen s Fund Insurance Company v. Thien Points for Discussion G. Judges and Jurors as Witnesses...85 Rule 605. Competency of Judge as Witness Rule 606. Competency of Juror as Witness Tanner v. United States Points for Discussion H. Dead Man s Statutes...89 I. Other Prerequisites to Testifying Oath or Affirmation Rule 603. Oath or Affirmation United States v. Fowler Points for Discussion The Personal Knowledge Requirement Rule 602. Personal Knowledge McCrary-El v. Shaw Points for Discussion Executive Summary Ch a p t e r Fi v e Witnesses A. Direct Examination and Cross-Examination...99 Rule 611. Mode and Order of Interrogation and Presentation Direct Examination

5 Table of Contents xiii 2. Cross-Examination Refreshing a Witness s Memory Doty v. Elias Points for Discussion B. Impeachment of a Witness General Impeachment Guidelines: Impeaching a Party s Own Witness United States v. Morlang Points for Discussion General Impeachment Guidelines: Bolstering a Witness s Credibility U.S. v. Rosario-Diaz Points for Discussion Impeaching a Witness s Character for Truthfulness Rule 608. Evidence of Character and Conduct of a Witness a. Reputation and Opinion Evidence United States v. Whitmore Points for Discussion b. Specific Acts of Dishonesty United States v. Whitmore (continued) Points for Discussion Impeaching a Witness with Prior Convictions Rule 609. Impeachment by Evidence of Conviction of a Crime United States v. Sanders Points for Discussion United States v. Hayes Points for Discussion Impeaching a Witness with a Prior Inconsistent Statement Rule 613. Prior Statements of Witnesses United States v. Young Points for Discussion Impeaching a Witness by Showing Bias United States v. Abel Points for Discussion An Extrinsic Evidence Chart Executive Summary

6 xiv Evidence A Contemporary Approach Ch a p t e r Six Hearsay A. Introduction The Idea Behind the Hearsay Rule The Trial of Sir Walter Raleigh Hearsay Risks Trial Safeguards B. Analysis Under the Rules Rule 802. The Hearsay Rule Rule 801. Definitions (Parts a-c) Rule 801(a). Statements Rule 801(b). Declarant Rule 801(c) Hearsay C. Utterances and Conduct That Are Not Hearsay Impeachment of a Witness Effect on the Listener (or Reader) McClure v. State Points for Discussion Verbal Acts Hanson v. Johnson Points for Discussion Circumstantial Evidence of Declarant s State of Mind, Memory or Belief D. Statements Which Are Not Hearsay by Definition Rule 801. Definitions (Part d) Rule 801(d) Statements Which Are Not Hearsay U.S. v. Barrett Points for Discussion Prior Consistent Statement to Rebut Charge of Fabrication Tome v. U.S Points for Discussion Prior Statement of Identification of a Person (801(d)(1)(C) United States v. Lewis Points for Discussion Rule 801(d)(2). Admission by Party Opponent Generally Personal Knowledge Not Required Personal Admissions No Self-Serving Statements Judicial Admissions

7 Table of Contents xv Adoptive Admissions Vicarious Admissions Party s Own Statement 801(d)(2)(A) Jewell v. CSX Transportation, Inc Points for Discussion Adopted Statement U.S. v. Morgan Points for Discussion Statement by Person Authorized 801(d)(2)(C) Kirk v. Raymark Industries Points for Discussion Statement by Party s Agent Mahlandt v. Wild Canid Survival & Research Center, Inc Overview of the Mahlandt v. Wild Canid Survival & Research Center, Inc Points for Discussion Statement by Coconspirator 801(d)(2)(E) Bourjaily v. United States Points for Discussion E. Hearsay within Hearsay Rule 805. Hearsay within Hearsay F. Hearsay Exceptions Hearsay Exceptions; Availability of Declarant Immaterial Rule 803(1) Present Sense Impression Schindler v. Seiler Points for Discussion Rule 803(2) Excited Utterance City of Dallas v. Donovan Points for Discussion Comparison of 803(1) and 803(2) Rule 803(3) Then Existing Mental, Emotional, or Physical Condition Mutual Life Ins. Co. of New York v. Hillmon Points for Discussion Casualty Insurance Co. v. Salinas Points for Discussion Rule 803(4) Statements for Purposes of Medical Diagnosis or Treatment State v. Moen

8 xvi Evidence A Contemporary Approach Points for Discussion Rule 803(5) Recorded Recollection U.S. v. Mornan Points for Discussion Rule 803(6) Records of Regularly Conducted Activity Keogh v. Commissioner of Internal Revenue Points for Discussion Rule 803(7) Absence of Entry in Records Kept in Accordance with the Provisions of Paragraph (6) Rule 803(8) Public Records and Reports Beech Aircraft v. Rainey Points for Discussion Rule 804. Hearsay Exceptions; Declarant Unavailable Rule 804(a) Definition of Unavailability Rule 804(b)(1)-(6) Hearsay Exceptions Rule 804(b)(1) Former Testimony U.S. v. DiNapoli Points for Discussion Rule 804(b)(2) Statement Under Belief of Impending Death Rule 804(b)(3) Statement Against Interest Rule 804(b)(4) Statement of Personal or Family History Rule 804(b)(6) Forfeiture by Wrongdoing U.S. v. Gray Points for Discussion G. Residual Exception Rule 807 Residual Exception Dallas County v. Commercial Union Assur. Co Points for Discussion H. Remaining Exceptions Rule 803(9) Records of Vital Statistics Rule 803(10) Absence of Public Record or Entry Rule 803(11) Records of Religious Organizations Rule 803(12) Marriage, Baptismal and Similar Certificates Rule 803(13) Family Records Rule 803(14) Records of Documents Affecting and Interest in Property Rule 803(15) Statements in Documents Affecting an Interest in Property Rule 803(16) Statements in Ancient Documents

9 Table of Contents xvii Rule 803(17) Market Reports, Commercial Publications Rule 803(18) Learned Treatises Rule 803(19) Reputation Concerning Personal or Family History Rule 803(20) Reputation Concerning Boundaires or General History Rule 803(21) Reputation as to Character Rule 803(22) Judgment of Previous Conviction Rule 803(23) Judgment as to Personal, Family or General History or Boundaries Executive Summary Ch a p t e r Seven Hearsay and Constitutional Considerations A. The Sixth Amendment and the Hearsay Rule and Its Exception The Confrontation Clause of the Sixth Amendment to the United States Constitution Brief History of the Confrontation Clause: Sir Walter Raleigh s Case B. Hearsay Statements by Non-Testifying Declarants Ohio v. Roberts Points for Discussion Crawford v. Washington Points for Discussion Davis v. Washington Points for Discussion Perspective and Analysis C. Waiver of Confrontation Rights and Forfeiture by Wrongdoing Rule 804(b)(6) Forfeiture by Wrongdoing United States v. Scott Points for Discussion Executive Summary Ch a p t e r Ei g h t A Return to Relevance I: Limits Based on Policy A. Introduction B. Subsequent Remedial Measures Rule 407 Subsequent Remedial Measures The General Rule and the Feasability Exception

10 xviii Evidence A Contemporary Approach Anderson v. Malloy Points for Discussion The Impeachment Exception Harrison v. Sears, Roebuck and Company Points for Discussion C. Settlement Offers When Offered Primarily in a Civil Case Rule 408 Compromise and Offers to Compromise Pierce v. E.R. Tripler & Company Points for Discussion The Bias Exception John McShain, Inc. v. Cessna Aircraft Company Points for Discussion D. Payment for Medical Expenses Rule 409 Payment of Medical and Similar Expenses E. Plea Bargain Agreements in Criminal Cases Rule 410 Inadmissibility of Pleas, Plea Discussions, and Related Statements U.S. v. Mezzanato Points for Discussion F. Liability Insurance Rule 411 Liability Insurance Charter v. Chleborad Points for Discussion Executive Summary Ch a p t e r Ni n e A Return to Relevance II: Character and Habit A. Introduction Rule 404(a) Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes B. The General Rule Excluding Character Evidence Calvert v. United States Points for Discussion C. Exceptions to the General Rule: Character of a Defendant in a Criminal Case Rule 404(a)(1) & (2) Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes Rule 405 Methods of Proving Character

11 Table of Contents xix (a)(1) The Mercy Rule Michelson v. United States Points for Discussion Rules The Defendant s Character in Sexual Assault and Child Molestation Cases Rule 413 Evidence of Similar Crimes in Sexual Assault Cases Rule 414 Evidence of Similar Crimes in Child Molestation Cases Rule 415 Evidence of Similar Crimes in Civil Cases Concerning Sexual Assault or Child Molestation United States v. LeMay Points for Discussion D. Exceptions to the General Rule: Character of the Victim in a Criminal Case Rule 404(a)(2): Victim s Character Generally in Criminal Cases Rule 404(a)(1): Prosecution s Counterattack by Showing the Defendant s Bad Character Rule 404(a)(2): Character for Peacefulness of the Victim in a Homicide Case Rule 412: The Victim s Character in a Sex Offense Case Judd v. Rodman Points for Discussion E. Character Evidence Offered to Prove a Fact Other Than Character Rule 404(b) Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes Rule 403 Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time Acts Offered to Prove Intent United States v. Hearst Points for Discussion Acts Offered to Prove Plan and Identity United States v. Carroll Points for Discussion Perspective and Analysis F. Character Evidence Offered to Prove an Element of a Charge, Claim or Defense Rule 405 Methods of Proving Character Schafer v. Time, Inc Points for Discussion G. Making Sense of Rules 404 and 405: A Recap Quick Reference Charts

12 xx Evidence A Contemporary Approach H. Habit and Routine Practice Rule 406 Habit; Routine Practice Loughan v. Firestone Tire & Rubber Co Points for Discussion Executive Summary Ch a p t e r Ten Authentication A. Introduction Rule 901(a) Requirement of Authentication or Identification Rule 901(b) Illustrations B. Tangible Evidence United States v. Collado Points for Discussion Lockhart v. McCotter Points for Discussion C. Writings and Other Documents United States v. Bagaric Points for Discussion D. Voice Identification and Telephone Conversations United States v. Espinoza E. Photographs U.S. v. Hyles United States v. Soto-Beniquez United States v. Taylor F. Electronic Mail United States v. Safavian Internet and Evidence Gregory P. Joseph, Esq G. Self-Authenticating Rule 902 Self-Authentication H. Subscribing Witness s Testimony Rule 903 Subscribing Witness Testimony Unnecessary I. Demonstrative Evidence New Mexico v. Tollardo Executive Summary Ch a p t e r Eleven Best Evidence Rule A. Best Evidence Rule Rule 1001 Definitions and Basic Rule

13 Table of Contents xxi Rule 1002 Requirement of Original Rule 1003 Admissibility of Duplicates Rule 1004 Admissibility of Other Evidence of Contents What is a Writing, Recording or Photograph Seiler v. Lucasfilm, Ltd Points for Discussion When are the Contents of a Writing, Recording or Photograph at Issue? United States v. Bennett Points for Discussion Originals, Duplicates and Secondary Evidence United States v. Gerhart Points for Discussion The Admissibility of Summaries Executive Summary Ch a p t e r Tw e l v e Opinion Testimony Lay and Expert A. Lay Opinions Rule 701 Opinion Testimony by Lay Witnesses United States v. Yazzie Gorby v. Schneider Tank Lines, Inc Points for Discussion Kostelecky v. NL Acme Tool/NL Industries, Inc B. Expert Opinions Rule 702 Testimony by Experts Qualifications Polston v. Boomershine Pontiac-GMC Truck, Inc Points for Discussion Is the Testimony Helpful to the Jury Direct Examination of Experts David Malone Reliability of Expert Testimony Frye v. United States Daubert v. Merrell Dow Pharmaceuticals, Inc Points for Discussion General Electric Company v. Joiner Points for Discussion Kuhmo Tire Co. v. Carmichael Expert v. Lay Opinions United States v. Freeman

14 xxii Evidence A Contemporary Approach 4. Bases of Testimony Rule 703 Bases of Opinion Testimony by Experts South Central Petroleum, Inc. v. Long Brothers Oil Company Opinion on the Ultimate Issues Rule 704 Opinion on Ultimate Issue United States v. Lockett United States v. Finley Disclosure of Facts or Data Underlying Expert Opinion Rule 705 Disclosure of Facts or Data Underlying Expert Opinions Marsee v. United States Tobacco Company Court Appointed Experts Rule 706 Court Appointed Experts C. Scientific Evidence Hard Sciences Head v. Lithonia Corp., Inc Soft Sciences United States v. Powers Executive Summary Ch a p t e r Thirteen Privileges A. Introduction Rule 501 General Rule B. Attorney-Client Privilege Who is the Client Upjohn v. United States Points for Discussion Who is an Attorney or an Attorney s Representative? United States v. Kovel Points for Discussion What is Communication? United States v. Kendrick Points for Discussion Made in Confidence United States v. Evans Points for Discussion To Facilitate Legal Services United States v. Rowe Points for Discussion

15 Table of Cases xxiii 6. Waiver of Privilege Claiming the Privilege in Court: The Privilege Log Federal Rule of Civil Procedure Federal Rule of Civil Procedure C. Spousal Privileges The Adverse Testimonial Privilege Box Trammel v. United States Points for Discussion The Marital Communications Privilege United States v. Marashi Points for Discussion D. Psychotherapist-Patient Privilege Jaffee v. Redmond Points for Discussion E. Miscellaneous Privileges Clergy-Penitent Privilege Accountant-Client Privilege Journalist s Privilege Parent-Child Privilege F. Self-Incrimination Criminal v. Civil Persons Protected Scope of Privilege Incrimination Writings U.S. v. Doe Required Records and Reports Executive Summary Ch a p t e r Fourteen Judicial Notice A. Introduction Rule 201 Judicial Notice of Adjudicative Facts B. Judicial Notice of Adjudicative Facts The Difference Between Adjudicative and Legislative Facts United States v. Gould Perspective and Analysis Points for Discussion Judicial Notice in Civil Cases Kaggen v. Internal Revenue Service

16 xxiv Evidence A Contemporary Approach Points for Discussion Judicial Notice in Criminal Cases United States v. Jones Points for Discussion C. Facts Within the Personal Knowledge of the Judge United States v. Lewis Points for Discussion Executive Summary Ch a p t e r Fifteen Burdens and Presumptions A. Burden of Proof Burden of Production The Burden of Persuasion B. Standards of Proof C. Inferences and Presumptions Inferences Presumptions D. Presumptions in Civil Cases Rule 301 Presumptions in General in Civil Actions and Proceedings In Re Yoder Co Points for Discussion E. Presumptions in Criminal Cases County Court of Ulster County v. Allen Points for Discussion Executive Summary Ap p e n d i x A. The Federal Rules of Evidence Ap p e n d i x B. The Federal Rules of Evidence with Advisory Committee Notes Index...963