Evidence: Common Law And Federal Rules Of Evidence

, by Rice, Paul R.; KATRIEL, ROY A.

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ISBN: 9780820562094 | 0820562092
Cover: Hardcover
Copyright: 11/1/2004

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Supplemental Materials

Dedication

iii

Preface to the Fifth Edition

Introduction

vii

Acknowledgements

Summary Table of Contents

Structure of the Trial and Presentation of Evidence

(34)

Introduction

(1)

Structure of the Trial

(2)

Rule 611

(1)

Presentation of Testimony

(2)

Rule 611

(1)

Rules Applicable to Elicitation of Testimony

(7)

Competency of Witnesses

(1)

Rule 601

(1)

Rule 605

(1)

Rule 606

(1)

Personal Knowledge

(1)

Rule 602

(1)

Focused Questions Calling for Specific Answers

(1)

Leading Questions

(1)

Leading Questions Prohibited on Direct Examination

(3)

Exceptions to Leading Question Prohibition

(1)

Rule 611

(1)

Presenting and Excluding Evidence

(13)

Qualifying and Offering Evidence

(5)

Excluding Inadmissible Evidence

(1)

Necessity for Objection

(1)

Timeliness

(2)

Specificity

(1)

Rule 103

(1)

Offers of Proof

(1)

Rule 103

(4)

Division of Responsibility Within Trial

(10)

In General

(1)

Finder of Facts

(1)

Parties

(1)

Satisfying Burdens of Proof

(1)

Burden of Producing Evidence

(1)

Burden of Persuasion

(1)

Allocating Burdens

(1)

Another Burden of Persuasion: Establishing Admissibility of Evidence

(1)

Judge

(2)

Rule 104

(1)

Problems

(2)

An Introduction to Relevance

(74)

The Common Law

(33)

Components of Relevance

(1)

What Propositions Are Provable?

(1)

United States v. Staggs

(14)

Author Commentary

(1)

Determining Probative Value

(1)

Probative Value: An Issue Only for Circumstantial Evidence

(1)

Are There Levels of Logical Relevance? Does Admissibility Impose a Minimum Requirement of Probative Value?

(1)

Relevancy Unraveled

(1)

Reliability of ``Relevant'' Evidence: Generally a Question of Weight Rather than Admissibility

(1)

Contemporary Mission, Inc. v. Famous Music Corp.

(4)

Author Commentary

(1)

People v. Collins

(7)

Author Commentary

(2)

Federal Rules of Evidence: Rules 401 and 402

(2)

Changes from Common Law

(1)

Impact of Rule 402 on Development of Common-Law Rules of Evidence

(1)

Relationship to Other Rules

(39)

Rule 104---Preliminary Questions

(3)

Rule 106---Remainder of or Related Writings or Recorded Statements: Rule of Completeness

(2)

Rule 403---Exclusion of Relevant Evidence: Balancing Probative Value and Prejudicial Effect

(1)

Rule 403: The Prejudice Rule in Evidence

(5)

Author Commentary

(1)

Ballou v. Henri Studios, Inc.

(7)

Author Commentary

(2)

Old Chief v. United States

(10)

Rule 411---Liability Insurance

100

(1)

Rules 901 and 902---Authentication

101

(1)

Problems

102

(7)

Specific Evidentiary Rules Based on Relevance, Public Policy, and Unfair Prejudice

109

(174)

Introduction

109

(1)

Character Evidence

109

(108)

Admissibility and Use Depends on Context

109

(1)

Common Law

110

(1)

Using Character Evidence to Prove Element of Claim, Charge, or Defense

110

(1)

Using Character Evidence to Establish Propensity from Which Conduct Can Be Inferred

110

(1)

Use for Propensity Generally Prohibited

110

(2)

Exception: Character of Criminal Defendant or Victim

112

(2)

Michelson v. United States

114

(7)

Author Commentary

121

(2)

Propensity Evidence in Different Context: Character of Witness for Truth and Veracity

123

(2)

Prior-Act Evidence Offered for Purposes Other than Propensity

125

(1)

McCormick on Evidence

126

(4)

Author Commentary

130

(1)

Federal Rules of Evidence: Rules 404 and 405

130

(1)

Changes from Common Law

131

(2)

Basis of Opinion Testimony on Character

133

(1)

Using Reputation and Opinion Testimony under Rule 405(a): Permissible Scope of Cross-Examination

133

(1)

United States v. Curtis

134

(6)

Author Commentary

140

(1)

Time Focus of Character Evidence: Time of Offense or Time of Trial?

141

(1)

Civil Cases Involving Criminal Conduct

141

(1)

Crumpton v. Confederation Life Insurance Co.

142

(3)

Author Commentary

145

(1)

Permissible Uses of Character Evidence of Prior Bad Acts under Rule 404(b)

146

(1)

United States v. Beechum

147

(15)

Burden of Persuasion for Establishing Prior Acts and Degree of Similarity between Past Act and Charged Offense

162

(2)

Understanding Admissibility of Prior Bad Acts: A Diagrammatic Approach

164

(2)

Is Offer to Commit Act Equivalent to Its Commission?

166

(1)

Effect of Acquittal on Charges Arising from Alleged Act on Use of Prior-Act Evidence

166

(1)

Dowling v. United States

167

(7)

``Other Crimes, Wrongs, or Acts'': Other than What?

174

(1)

Negative Other-Act Evidence

175

(1)

Use of Rule 404(b) Evidence for ``Other Purposes''

175

(1)

Other Purposes Not Limited

175

(1)

To Explain Conduct of Witness: Rehabilitating Credibility

176

(1)

To Prove Predisposition

176

(1)

To Support Psychiatric Opinion of Sanity

177

(1)

To Establish Extortion Victim's State of Mind

177

(1)

To Counter Defense Claim on Collateral Matter: Claim of Illegal Police Conduct

177

(1)

Doctrine of Chances

178

(1)

Prior-Act Evidence to Show ``Plan''

179

(1)

At What Point in Trial May Prosecution Introduce Other-Act Evidence?

179

(1)

United States v. Danzey

180

(3)

Author Commentary

183

(1)

Procedures under Rule 404(b)

184

(1)

Is On-the-Record Balancing of Probative Value and Prejudice Required under Rule 404(b)?

185

(1)

Pretrial Disclosure of ``Similar Act'' Evidence

186

(1)

Subsequent as Well as Prior Acts May Be Admissible Under Rule 404(b)

186

(2)

Evidence of Whose Prior Acts?

188

(1)

Propensity in Sexual Assault Cases

188

(1)

Rule 413

189

(1)

Rule 414

189

(1)

Rule 415

190

(1)

Author Commentary

190

(3)

Propensity in the Extreme: Admissibility of Habit Evidence

193

(1)

Common Law

193

(3)

Federal Rules of Evidence: Rule 406

196

(1)

Changes from Common Law

196

(1)

Application of Rule 406

196

(1)

Weil v. Seltzer

196

(4)

How Is Habit or Custom to Be Established?

200

(2)

Habit Versus Custom

202

(1)

Custom of Organization to Prove Conduct of Individuals

202

(1)

Relationship to Other Rules

203

(1)

Rule 105---Limited Admissibility

203

(1)

Rule 410---Inadmissibility of Pleas, Plea Discussions, and Related Statements

203

(1)

Rule 412---Sex Offenses; Relevance of Victim's Past Behavior

204

(1)

Admissibility of Patterns of Similar Sexual Conduct: The Unlamented Death of Character for Chastity

204

(2)

Committee Note

206

(5)

Rule 609(a)---Impeachment by Evidence of Conviction of Crime

211

(1)

Rule 609(b)---Time Limit on Use of Prior Convictions

211

(1)

Rule 702---Testimony by Experts

212

(1)

Rule 803(21)---Reputation as to Character

212

(1)

Advisory Committee's Note

213

(1)

Problems

213

(4)

Similar Occurrences

217

(22)

Overview

217

(1)

Spontaneous Similar Occurrences

218

(1)

Definition

218

(1)

Rationale for Admissibility

218

(1)

Simon v. Town of Kennebunkport

219

(5)

Author Commentary

224

(1)

Similarity Requirement: What Factors Courts Consider and Level of Similarity They Require

224

(2)

Subsequent Similar Occurrences

226

(1)

Nonoccurrence Evidence: Imponderables of Negative Evidence

226

(3)

Created Similar Occurrences: Experiments and Demonstrations

229

(1)

Randall v. Warnaco, Inc., Hirsch-Weis Division

229

(8)

Author Commentary

237

(1)

Relationship to Rules 404 and 405

237

(1)

Problems

238

(1)

Subsequent Repairs

239

(15)

Common Law

239

(1)

Scope and Rationale

239

(2)

Is Rationale Sound?

241

(1)

Should Evidence of Subsequent Repairs Be Admitted for Impeachment?

241

(2)

Federal Rules of Evidence: Rule 407

243

(1)

Advisory Committee Note

243

(1)

Changes from Common Law

244

(1)

Grenada Steel Industries, Inc. v. Alabama Oxygen Co.

244

(4)

Author Commentary

248

(2)

Feasibility of Precautionary Measures

250

(1)

Relationship to Other Rules

251

(1)

Rule 105---Limited Admissibility

251

(1)

Rules 607 and 613

252

(1)

Rules 801 and 802

253

(1)

Problems

253

(1)

Offers of Compromise

254

(29)

Common Law

254

(1)

Esser v. Brophey

255

(3)

Author Commentary

258

(1)

Federal Rules of Evidence: Rule 408

259

(1)

Changes from Common Law

259

(1)

What Is Protected by Rule 408?

260

(1)

``Evidence Otherwise Discoverable''

261

(3)

Other Purposes for Which Compromise Evidence May Be Offered

264

(2)

Discovery of Compromise Information

266

(1)

Summary Jury Trials/Mock Trials

267

(1)

What Constitutes ``A Claim Which Was Disputed'' So as to Trigger Rule 408?

267

(1)

When Offer of Compromise Or Its Rejection is An Element of the Claim

268

(1)

Offers of Compromise Used Against Third Parties

268

(1)

Relationship to Other Rules

269

(1)

Rule 403---Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time

269

(1)

Rule 409---Payment of Medical and Similar Expenses

269

(1)

Rule 410---Inadmissibility of Pleas, Plea Discussions, and Related Statements

270

(1)

Provisions of Rule 410

270

(1)

Author Commentary

271

(1)

Limitations of Rule 410

272

(1)

Common-Law Limitations Incorporated

272

(1)

Protects Neither Guilty Pleas Not Withdrawn nor Guilty Pleas Upon Which Judgments Have Been Entered

272

(2)

Does Not Preclude Use of Statements Made In Course of Plea Discussions that Resulted In Unwithdrawn Guilty Plea

274

(1)

Protects Only Statements Made to ``An Attorney for the Prosecuting Authority''

274

(1)

Affects Only Admissibility of Pleas ``Against the Defendant''

275

(1)

Permits Prosecution to Introduce Defendant's Statements in Two Instances

275

(1)

Protects Statements Only to Extent Made ``In the Course of Plea Discussions''

276

(1)

Can Protections of Rule 410 Be Waived?

277

(2)

Plea But Not Judgment?

279

(1)

Rule 801(d)(2)---Statements That Are Not Hearsay: Admissions by Party-Opponent

280

(1)

Problems

281

(2)

Definition of Hearsay

283

(98)

Common-Law Definition of Hearsay

283

(35)

Definition and Rationale

283

(1)

Elements of Hearsay

283

(3)

United States v. Brown

286

(2)

Author Commentary

288

(1)

Hearsay Dangers and the Application of the Hearsay Concept

289

(1)

Communications by Conduct

290

(1)

Indirect Verbal Communications

290

(1)

People v. Barnhart

291

(1)

Author Commentary

292

(1)

McCormick on Evidence and the Concept of Hearsay: A Critical Analysis Followed by Suggestions to Law Teachers

293

(2)

Author Commentary

295

(1)

Unintended Communications

296

(1)

Wright v. Doe D. Tatham

296

(6)

Courts' Definitional Problems with Hearsay

302

(1)

Statements Made in Opponent's Presence

302

(1)

Assertion-Oriented Approach

303

(1)

Circumstantial Evidence Trap

304

(2)

Offered for Truth

306

(1)

Not Hearsay If Not Offered for Truth

306

(2)

Offered for Effect on Hearer

308

(1)

Operative Facts or Verbal Acts

309

(1)

Freeman v. Metropolitan Life Insurance Co.

309

(2)

Author Commentary

311

(1)

Knowledge

312

(1)

United States v. Parry

312

(2)

Author Commentary

314

(1)

Silence as Hearsay

315

(2)

Twilight Zone of Hearsay: Communications by Machines

317

(1)

Definition of Hearsay Under Federal Rules of Evidence

318

(63)

Structure of Federal Hearsay Rules

318

(1)

What Is Hearsay Under Federal Rules?

319

(1)

Rule 801

319

(1)

Changes from Common Law

319

(1)

Basic Definition of Hearsay

320

(1)

United States v. Zenni

320

(5)

Author Commentary

325

(1)

State of Iowa v. Dullard

326

(9)

Does The Assertive/Nonassertive Distinction Make Any Sense?

335

(1)

Implied Assertions as Hearsay: Some Criticisms of the Uniform Rules of Evidence

335

(4)

Who Has Burden of Persuasion on Preliminary Question of Whether Conduct Was Intended as Assertion?

339

(1)

Statements Excluded from Definition of Hearsay by Federal Rules

340

(1)

Overview

340

(1)

Rule 801

340

(1)

Author Commentary

340

(1)

Prior Inconsistent Statements: Rule 801(d)(1)(A)

341

(1)

Changes from Common Law

341

(1)

Definition of ``Inconsistent'' Statement

342

(1)

Other Proceedings

343

(1)

State v. Smith

344

(2)

Author Commentary

346

(2)

Former Testimony as Prior Inconsistent Statement

348

(1)

Prior Identification as Prior Inconsistent Statement

348

(1)

Balancing Probative Value and Potential Prejudice

348

(1)

Prior Consistent Statements: Rule 801(d)(1)(B)

349

(1)

Changes from Common Law

349

(1)

Rehabilitating the Impeached Witness with Consistent Statements

350

(4)

``Before Motive to Fabricate Arose''

354

(1)

Tome v. United States

354

(12)

Implied Charges of Recent Fabrication or Improper Influence or Motive

366

(2)

Statements of Identification: Rule 801(d)(1)(C)

368

(1)

Changes from Common Law

368

(1)

``After Perceiving the Person''

369

(1)

Must Witness Testify About His or Her Prior Identification?

370

(1)

``Subject to Cross-Examination Concerning the Statement''

370

(1)

Admissions: Rule 801(d)(2)

371

(1)

Relationship to Other Rules

372

(1)

Rule 104---Preliminary Questions

372

(1)

Rule 106---Remainder of or Related Writings or Recorded Statements

372

(1)

Rule 703---Bases of Opinion Testimony by Experts

372

(1)

Problems

373

(8)

Exceptions to the Hearsay Rule

381

(404)

Two Categories of Hearsay Exceptions

381

(2)

Declarant's Unavailability: Material Versus Immaterial

381

(1)

Rationale

381

(2)

Unavailability

383

(8)

Overview of Exceptions in Which Declarant's Unavailability Is Material

383

(1)

Definition of Unavailability

383

(1)

Common Law

383

(1)

Federal Rules of Evidence: Rule 804(a)

384

(1)

Changes from Common Law

384

(2)

Unavailable upon Claim of Privilege

386

(1)

Refusal to Testify: Sufficiently Unavailable Only after Ordered to Testify by Court

387

(1)

Lack of Memory and Physical or Mental Incapacity: A Question of Duration

388

(1)

United States v. Amaya

388

(1)

Author Commentary

389

(1)

Procured Unavailability of Witness

389

(1)

Intentionally or Recklessly Versus Inadvertently

389

(1)

Government's Refusal to Request Immunity for Witness

390

(1)

Hearsay Exceptions Requiring Declarant's Unavailability

391

(103)

Former Testimony

391

(1)

Common Law

391

(1)

Requirements to Ensure Reliability and Fairness

391

(1)

Unavailability of Witness

391

(1)

Subject to Cross-Examination

392

(1)

Identity of Parties and Issues

392

(1)

Double Hearsay Problem

393

(2)

Limited Uses of Former Testimony

395

(1)

Federal Rules of Evidence: Rule 804(b)(1)

395

(1)

Changes from Common Law

396

(1)

Scope of Rule 804(b)(1): ``Predecessor in Interest''

396

(1)

Lloyd v. American Export Lines, Inc.

397

(5)

Author Commentary

402

(2)

Scope of Rule 804(b)(1): Opportunity and Similar Motive to Develop Prior Testimony

404

(5)

Relationship to Other Rules

409

(1)

Rule 106---Remainder of or Related Writings or Recorded Statements

409

(1)

Rule 602---Personal Knowledge

410

(1)

Rule 611---Mode and Order of Interrogation and Presentation

410

(1)

Rule 801(d)(1)(A)---The Available Witness: Prior Inconsistent Testimony

410

(1)

Rule 801(d)(1)(B)---Prior Consistent Statements

411

(1)

Rule 801(d)(2)---Admission by Party-Opponent

411

(1)

Double Hearsay in Transcripts: Rules 803(1), (5), (6), and (8)---Present Sense Impression; Recorded Recollection; Recordsof Regularly Conducted Activity; Public Records and Reports

411

(1)

Rules 901 and 902---Requirement of Authentication and Self-Authentication

412

(1)

Problems

413

(1)

Dying Declarations

414

(1)

Common Law

414

(1)

Requirements for Admissibility

414

(1)

Contemplation of Imminent Death

415

(1)

Relating to Cause of Declarant's Death

415

(1)

Death

415

(1)

Firsthand Knowledge

416

(1)

Use Limited to Criminal Homicide Cases

416

(1)

Federal Rules of Evidence: Rule 804(b)(2)

416

(1)

Johnson v. State

417

(5)

Relationship to Other Rules

422

(1)

Rule 104(a)---Preliminary Questions

422

(1)

Rule 602---Lack of Personal Knowledge

422

(1)

Rules 608(a), 610, and 806---Reputation of Declarant; Religious Beliefs of Declarant; Attacking Credibility of Declarant

422

(1)

Rule 701---Opinion Testimony By Lay Witnesses

423

(1)

Rule 803(2)---Excited Utterance

423

(1)

Problems

423

(1)

Declarations Against Interest

424

(1)

Common Law

424

(1)

Federal Rules of Evidence: Rule 804(b)(3)

425

(1)

Changes from Common Law

425

(1)

``Against Interest'': Reasonable Person Test

425

(1)

Perils of the Rulemaking Process: The Development, Application, and Unconstitutionality of Rule 804(b)(3)'s Penal Interest Exception

426

(1)

Author Commentary

427

(1)

``Tend'' to Subject to Liability

428

(1)

No Overriding Motive to Fabricate

428

(1)

Admissibility of Portions of Declarations Not Against Declarant's Interests

429

(1)

Williamson v. United States

430

(11)

Author Commentary

441

(1)

Constitutional Restrictions on the Use of Hearsay

441

(1)

The Confrontation Clause

441

(1)

Lilly v. Virginia

442

(10)

Author Commentary

452

(2)

Crawford v. Washington

454

(19)

Author Commentary

473

(4)

The Due Process Clause

477

(1)

Chambers v. Mississippi

477

(8)

Author Commentary

485

(1)

Relationship to Other Rules

486

(1)

Rule 602---Lack of Personal Knowledge

486

(1)

Rule 801(d)(2)---Admission by Party-Opponent

486

(1)

Rule 807---Other Exceptions

486

(1)

Problems

487

(1)

Forfeiture by Wrongdoing

487

(1)

Common Law

487

(1)

Federal Rules of Evidence: Rule 804(b)(6)

488

(1)

Changes from the common law

488

(1)

Acquiescing in wrongdoing

488

(1)

United States v. Thompson

488

(3)

Scope of the waiver

491

(2)

Rule 804

493

(1)

Common-Law Hearsay Exception That No Longer Is Hearsay Under Federal Rules of Evidence

494

(56)

Admissions

494

(1)

Common Law

494

(1)

Federal Rules of Evidence: Rule 801(d)(2)(A)---(D)

494

(1)

Overview

494

(1)

Changes from Common Law

495

(2)

Individual Admissions: Rule 801(d)(2)(A)

497

(1)

Contractor Utility Sales Co. v. Certain-Teed Products Corp.

497

(3)

Author Commentary

500

(2)

Adoptive Admissions: Rule 801(d)(2)(B)

502

(1)

United States v. Flecha

503

(3)

Author Commentary

506

(2)

Authorized Admissions: Rule 801(d)(2)(C)

508

(1)

Vicarious Admissions: Rule 801(d)(2)(D)

508

(1)

Expanded Scope of Vicarious Admissions

508

(1)

Mahlandt v. Wild Canid Survival & Research Center, Inc.

509

(4)

Author Commentary

513

(1)

Government Employees as Agents for Purposes of Vicarious Admissions

514

(1)

Vicarious Admissions by Attorneys

514

(2)

Relationship to Other Rules

516

(1)

Rule 104---Preliminary Questions

516

(1)

United States v. Moore

517

(2)

Rules 407, 408 and 409---Subsequent Remedial Measures; Compromise and Offers of Compromise; Payment of Medical and Similar Expenses

519

(1)

Rule 410---Inadmissibility of Pleas, Plea Discussions and Related Statements

520

(1)

Rule 602---Lack of Personal Knowledge

520

(1)

Rule 613---Prior Statements of Witnesses

521

(1)

Rule 701---Opinion Testimony by Lay Witness

521

(1)

Rule 702---Testimony by Experts

521

(1)

Rule 804(b)(3)---Statement Against Interest

522

(1)

Rule 901(a)---Requirement of Authentication or Identification

523

(1)

Problems

524

(1)

Admissions by Co-Conspirators

525

(1)

Common Law

525

(1)

Federal Rules of Evidence: Rule 801(d)(2)(E)

526

(1)

Changes from Common Law

526

(1)

Made ``During the Course of the Conspiracy''

527

(1)

United States v. Diez

528

(4)

Author Commentary

532

(1)

Made ``In Furtherance of the Conspiracy''

532

(1)

Independent Evidence to Corroborate Conspiracy and Participation

533

(1)

Criminal Defendant's Right of Confrontation and Vicarious Admissions

534

(1)

Relationship to Other Rules

535

(1)

Rule 104---Preliminary Questions

535

(1)

Bourjaily v. United States

535

(5)

Author Commentary

540

(1)

United States v. Gil

541

(2)

Author Commentary

543

(1)

Rule 105---Limited Admissibility

543

(1)

Rule 602---Lack of Personal Knowledge

544

(1)

Rule 611---Mode and Order of Interrogation and Presentation

544

(1)

United States v. Vinson

545

(1)

Author Commentary

546

(1)

Rule 801(c)---Hearsay

547

(1)

Rule 801(d)(2)---Admissions by Party-Opponent

548

(1)

Rule 803(2)---Excited Utterance

548

(1)

Rule 804(b)(3)---Statement Against Interest

549

(1)

Problem

550

(1)

Hearsay Exceptions for Which Declarant's Unavailability Is Immaterial

550

(235)

Excited Utterances

550

(1)

Common Law

550

(1)

Federal Rules of Evidence: Rule 803(2)

551

(1)

Changes from Common Law

551

(1)

What Is A Sufficiently Startling Event?

551

(1)

United States v. Napier

552

(2)

What Is A Spontaneous Response?

554

(1)

Christensen v. Economy Fire & Casualty Co.

555

(4)

Author Commentary

559

(1)

Children as Victims of Sex Crimes: Extension of Excited-Utterance Exception

559

(1)

Author Commentary

560

(2)

Statement Relating to Event

562

(1)

Murphy Auto Parts Co. v. Ball

562

(3)

Author Commentary

565

(1)

Attacks on Reliability of Excited Utterances

566

(1)

Problem of Proof: Establishing Occurrence of Event and Its Exciting Nature

567

(1)

Relationship to Other Rules

567

(1)

Rule 104(a)---Preliminary Questions

567

(1)

Rule 601---General Rule of Competency

568

(1)

Rule 602---Lack of Personal Knowledge

568

(1)

Rules 609 and 806---Impeachment by Evidence of Conviction of Crime; Attacking and Supporting Credibility of Declarant

569

(1)

Rule 701---Opinion Testimony by Law Witnesses

570

(1)

Problems

570

(1)

Present Sense Impression

571

(1)

Common Law

571

(1)

Houston Oxygen Co. v. Davis

571

(2)

Author Commentary

573

(1)

Federal Rules of Evidence: Rule 803(1)

573

(1)

Present Sense Impressions: An Analysis and a Proposal

574

(1)

United States v. Blakey

575

(2)

Wolf v. Proctor & Gamble Co.

577

(2)

Requirement of Contemporaneity

579

(1)

Robinson v. Shapiro

579

(2)

Author Commentary

581

(1)

Subject Matter of Statement

581

(1)

Corroboration of Statements of Present Sense Impression

582

(1)

Relationship to Other Rules

583

(1)

Rule 604---Interpreters

583

(1)

Rule 803(2)---Excited Utterance

583

(1)

Rule 803(3)---Then-Existing Mental, Emotional, or Physical Condition

583

(1)

Problems

584

(1)

Declarations of Present State of Mind

584

(1)

Common Law

584

(1)

Elements of Exception

584

(1)

Use of Present State of Mind Declarations: A Question of Relevance and Necessity

585

(1)

Mutual Life Insurance Co. v. Hillmon

586

(2)

Author Commentary

588

(1)

Can a Present State of Mind Have Backward Continuity---Be Evidence of Past Conduct?

589

(2)

Shepard v. United States

591

(3)

Author Commentary

594

(1)

Can Conduct of Another Be Inferred from State-of-Mind Declarations?

595

(1)

People v. Alcalde

595

(2)

Author Commentary

597

(1)

Federal Rules of Evidence: Rule 803(3)

598

(1)

Changes from Common Law

598

(1)

United States v. Pheaster

599

(6)

Under Conditions of Apparent Sincerity

605

(1)

Relationship to Other Rules

606

(1)

Rule 104(a)---Preliminary Questions

606

(1)

Rule 403---Exclusion of Evidence on Grounds of Prejudice, Confusion, or Waste of Time

607

(3)

Rule 803(1)---Present Sense Impression

610

(1)

Problems

610

(1)

Present Physical Condition

611

(1)

Common Law

611

(1)

Elements of Exception

611

(1)

Statement to Physician for Purpose of Obtaining Treatment

612

(1)

Rationale

612

(1)

Primary Purpose Must Be Treatment

613

(1)

Statements of Medical History and Causation

613

(1)

Statements to Physicians for Purpose of Litigation

613

(1)

Federal Rules of Evidence: Rules 803(3) and 803(4)

614

(1)

Separate Rules for Different Contexts

614

(1)

Changes from Common Law

614

(1)

Pertinency Requirement

615

(1)

United States v. Narciso

616

(1)

Author Commentary

617

(1)

Causation

618

(1)

Statements to Medical Personnel by Declarant Who Is Not Injured Party

619

(1)

Psychiatric Diagnosis or Treatment

620

(1)

Medical History

621

(1)

O'Gee v. Dobbs Houses, Inc.

621

(2)

Author Commentary

623

(1)

Relationship to Other Rules

624

(1)

Rules 601 and 603---General Rule of Competency; Oath or Affirmation

624

(1)

Rule 602---Lack of Personal Knowledge

624

(1)

Rule 703---Basis of Expert Opinion

625

(1)

Rule 803(6)---Records of Regularly Conducted Activity

626

(1)

Problems

627

(1)

Past Recollection Recorded

628

(1)

Common Law

628

(1)

Past Recollection Recorded: Restrictions on Use as Exhibit and Proposals for Change

629

(5)

Federal Rules of Evidence: Rule 803(5)

634

(1)

Changes from Common Law

634

(1)

United States v. Williams

635

(4)

``Insufficient Recollection to Permit Him to Testify Fully and Accurately''

639

(1)

Past Recollection Recorded: Restrictions on Use as Exhibit and Proposals for Change

640

(1)

Memorandum Excluded as Exhibit

641

(1)

``When the Matter was Fresh in His Memory''

642

(1)

Both Availability and Unavailability of Declarant Is Material

643

(1)

Relationship to Other Rules

644

(1)

Rule 602---Lack of Personal Knowledge

644

(1)

Rule 612---Present Recollection Revived

644

(1)

Common Law

644

(1)

Baker v. State

644

(6)

Author Commentary

650

(1)

Federal Rules of Evidence: Rule 612

650

(1)

Changes from Common Law

651

(1)

Applicability of Rule 612 to Proceedings Other than Hearings

651

(1)

For What Purpose May Cross-Examiner Introduce Writing?

651

(1)

Problem of Privilege

651

(1)

Wheeling-Pittsburgh Steel Corp. v. Underwriters Laboratories, Inc.

652

(2)

Author Commentary

654

(2)

Before Testifying Versus While Testifying

656

(1)

Authentication

656

(1)

Rule of Completeness

656

(1)

Work Product Immunity

657

(1)

Rule 803(1)---Present Sense Impression

657

(1)

Rule 901---Requirements of Authentication or Identification

658

(1)

Rule 1002---Requirement of Original

658

(1)

Problems

658

(1)

Business Records

659

(1)

Common Law

659

(1)

Elements of Exception

659

(1)

Johnson v. Lutz

660

(3)

Author Commentary

663

(3)

Standard of Trustworthiness: Overriding Limitation on Business Records Exception

666

(1)

Palmer v. Hoffman

667

(2)

Author Commentary

669

(2)

Yates v. Bair Transport, Inc.

671

(3)

Author Commentary

674

(1)

Federal Rules of Evidence: Rule 803(6)

675

(1)

Changes from Common Law

676

(1)

``Custodian or Other Qualified Witness''

676

(2)

Personal Knowledge and Business Duty: Must One Possessing Knowledge Owe Duty to Business Maintaining Record?

678

(1)

Author Commentary

679

(2)

``Regularly Conducted Business Activity''

681

(1)

Business Records and Computer

682

(1)

Note, Appropriate Foundation Requirements for Admitting Computer Printouts into Evidence

683

(3)

Author Commentary

686

(1)

``Unless the Source of Information or the Method or Circumstances of Preparation Indicate Lack of Trustworthiness''

686

(1)

Relationship to Other Rules

687

(1)

Rules 401 and 402---Relevance

687

(1)

Rule 602---Lack of Personal Knowledge

687

(1)

Rules 701 and 702---Opinion Testimony by Lay Witnesses; Testimony By Experts

688

(4)

Rule 801(d)(2)(A)--(E)---Admissions by Party-Opponent

692

(1)

Rule 803(7)---Absence of Entry in Record Kept in Accordance with Provisions of Paragraph (6)

693

(1)

Rule 803(8)---Public Records and Reports

694

(1)

Rule 803(11)---Records of Religious Organizations

694

(1)

Advisory Committee's Note

694

(1)

Rule 803(17)---Market Reports, Commercial Publications

695

(1)

Rule 807---Other Exceptions

695

(1)

Rule 901---Authentication

696

(1)

Rule 1006---Summaries

696

(1)

Problems

697

(2)

Public Records

699

(1)

Common Law

699

(1)

Federal Rules of Evidence: Rule 803(8)

699

(1)

Changes from Common Law

700

(1)

``Public'' Offices or Agencies

700

(1)

Rule 803(8)(B): ``Law Enforcement Personnel''

701

(3)

Unexplained Inconsistency in Limitations of Subsections (B) and (C)

704

(1)

Scope of Rule 803(8)(C)

705

(1)

Beech Aircraft Corp. v. Rainey

706

(7)

Author Commentary

713

(2)

Standard of Trustworthiness

715

(2)

Admissibility of Underlying Facts and Data

717

(1)

Zenith Radio Corp. v. Matsushita Electrical Industrial Co.

718

(1)

Author Commentary

719

(3)

Is Public Records Exception Preclusive?

722

(1)

Relationship to Other Rules

722

(1)

Rule 104---Preliminary Questions

722

(1)

Rule 403---Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time

723

(1)

Rules 702 and 703---Opinion Testimony by Experts

723

(1)

Rule 803(5)---Past Recollection Recorded

724

(1)

Rule 803(9)---Records of Vital Statistics

724

(1)

Advisory Committee's Note

724

(1)

Rule 803(10)---Absence of Public Record or Entry

725

(1)

Advisory Committee's Note

725

(1)

Rule 803(22)---Judgment of Previous Conviction

726

(1)

Limitation to Felony Judgments of Conviction

726

(1)

Advisory Committee's Note

726

(1)

``To Prove Any Facts Essential to Sustain the Judgment''

727

(1)

Judgment of Acquittal

728

(1)

Rule 902---Self-Authentication

728

(1)

Rule 1002 and 1005---Requirement of Original; Public Records

728

(1)

Problems

729

(1)

Ancient Documents

730

(1)

Common Law

730

(1)

Federal Rules of Evidence: Rule 803(16)

730

(1)

Changes from Common Law

731

(1)

Difficulties Inherent in Ancient Documents Exception

731

(1)

Markiewicz v. Salt River Valley Water Users' Ass'n

731

(1)

Problem

732

(1)

Learned Treatise Exception

732

(1)

Common Law

732

(1)

Federal Rules of Evidence: Rule 803(18)

733

(1)

Changes from Common Law

733

(1)

Tart v. McGann

733

(6)

Limitations on New Exception

739

(1)

Treatise as Reliable Authority

740

(1)

Medical Malpractice and Problem of Unwilling Expert

740

(1)

Charts as Learned Treatises

740

(1)

Problems

741

(1)

Residual Exceptions

742

(1)

Common Law

742

(1)

Federal Rules of Evidence: Rule 807

742

(1)

Declarant's Unavailability Immaterial

742

(1)

Equivalent Circumstantial Guarantees of Trustworthiness

743

(1)

United States v. Medico

744

(6)

Author Commentary

750

(2)

Evidence of Material Fact and Generally Serving Purposes of Rules and Interests of Justice

752

(1)

More Probative than Other Reasonably Procurable Evidence

752

(1)

Demars v. Equitable Life Assurance Society

753

(1)

Author Commentary

754

(1)

Pretrial Notice

755

(1)

Scope of Residual Exception

755

(2)

United States v. AT & T

757

(4)

United States v. American Cyanamid Co.

761

(2)

Author Commentary

763

(2)

State Adoption of Residual Exceptions

765

(1)

Residual Exceptions and Right to Confrontation

765

(1)

Idaho v. Wright

766

(10)

Author Commentary

776

(1)

Relationship to Other Rules

777

(1)

Rule 104---Preliminary Questions

777

(1)

Rule 803(8)(B) and (C). Public Records and Reports

778

(1)

Other Exceptions

778

(4)

Problems

782

(3)

Cross-Examination and Impeachment

785

(150)

Introduction

785

(1)

Cross-Examination

785

(5)

The Trial Process: Law Tactics and Ethics

785

(5)

Impeachment: Character Evidence

790

(34)

The Common Law

790

(1)

Admissibility of Character Evidence for Impeachment Purposes

790

(1)

Reputation Testimony

791

(1)

Limitations on Timing and Manner of Presentation

791

(1)

Cross-Examining the Reputation Witness

791

(3)

Specific Instances of Conduct

794

(1)

Admissibility of Prior Specific Instances of Conduct for Impeachment Purposes

794

(1)

Inquiries During the Witness' Cross-Examination

794

(1)

Evidence of Conviction of Crime

795

(2)

The Federal Rules of Evidence: Rule 608

797

(1)

Changes From the Common Law

797

(1)

Reputation or Opinion Character Evidence

797

(1)

Bolstering Credibility After Attack

798

(1)

United States v. Medical Therapy Sciences, Inc.

799

(4)

Author Commentary

803

(1)

Rule 608(b): Inquiries into Specific Instances of a Witness' Conduct for the Purpose of Attacking Credibility

804

(2)

``Taking the Answer'': A Codification of the ``Collateral Evidence'' Rule

806

(1)

Use of Extrinsic Evidence Restricted

806

(1)

Carter v. Hewitt

806

(5)

Author Commentary

811

(1)

Inapplicability of Rule 608(b) When Evidence of Prior Conduct Is Admissible for Other Purposes

811

(3)

Inapplicability of Rule 608(b) to Volunteered Testimony on Direct or Cross-Examination

814

(3)

Relationship to Other Rules

817

(1)

Rule 105---Limited Admissibility

817

(1)

Rule 402---Relevant Evidence: A Witness' Bias

818

(1)

Rule 404(a)---Character Evidence Generally

818

(1)

Rule 404(b)---Other Crimes, Wrongs, or Acts

818

(1)

Rule 609---Impeachment by Evidence of Conviction of Crime

819

(1)

Rule 610---Religious Beliefs or Opinions

819

(1)

Rule 611(b)---Scope of Cross-Examination

820

(1)

Rule 701---Opinion Testimony by Lay Witnesses

820

(1)

Rule 702---Testimony by Experts

821

(2)

Problems

823

(1)

Impeachment: Convictions of Crime

824

(39)

The Common Law

824

(1)

Prior Conviction As Impeaching Credibility

824

(1)

The Felony/Misdemeanor Distinction

825

(1)

Between a Rock and a Hard Place: The Dilemma of Criminal Defendants

825

(1)

Gordon v. United States

826

(4)

The Federal Rules of Evidence: Rule 609

830

(1)

Changes from the Common Law

831

(3)

Discretionary Balancing Under Rule 609(a)(1): The Five Factors of Gordon

834

(1)

Prior-Conviction Impeachment Under the Federal Rules of Evidence: A Suggested Approach to Applying the ``Balancing'' Provision of Rule 609(a)

835

(6)

Author Commentary

841

(1)

Rule 609(a)(2): Crimes Involving Dishonesty or False Statement

841

(1)

United States v. Smith

841

(6)

Author Commentary

847

(2)

Crimes Involving Dishonesty or False Statement: Is This a Factual Standard or One That Turns Solely on the Elements of the Offense?

849

(2)

On-the-Record Findings

851

(1)

If Convictions Are Established for Impeachment Purposes, What Information May One Elicit About Them?

852

(1)

Impeachment with Convictions on Direct Examination

853

(1)

Balancing Under Rule 609(b): Probative Value Must Substantially Outweigh Potential Prejudice Only When Ten-Year-Old Conviction Is Used to Attack Credibility

853

(1)

Relationship to Other Rules

854

(1)

Rule 103(a)(2)---Offer of Proof

854

(1)

Luce v. United States

855

(3)

Rule 104---Preliminary Questions

858

(1)

Rule 105---Limited Admissibility

858

(1)

Rule 403---Exclusion of Relevant Evidence on the Ground of Prejudice

858

(1)

Rule 404---Character Evidence Not Admissible To Prove Conduct; Rule 405---Methods of Proving Character

859

(1)

Rule 404(b)---Other Crimes, Wrongs, or Acts

860

(1)

Rule 410---Inadmissibility of Pleas

861

(1)

Rule 607---Who May Impeach

861

(1)

Rule 608---Evidence of Character and Conduct of Witness

861

(1)

Rule 902(4)---Certified Copies of Public Records; Rule 1002---Requirement of Original: The Best Evidence Rule; Rule 1005---Public Records Exception to Best Evidence Rule

862

(1)

Problems

862

(1)

Impeachment: Prior Inconsistent Statements

863

(25)

The Common Law

863

(1)

Some Observations on Credibility: Impeachment of Witnesses

863

(2)

The Federal Rules of Evidence: Rule 613

865

(1)

Changes from the Common Law

865

(1)

United States v. Barrett

866

(6)

Author Commentary

872

(1)

What Constitutes an Inconsistency?

873

(2)

Using Illegally Obtained Statements in Criminal Cases for Impeachment Purposes

875

(1)

Conduct as a Prior Inconsistent Statement

876

(1)

``[P]rovision Does Not Apply to Admissions''

876

(1)

Relationship to Other Rules

877

(1)

Rule 104(a)---Preliminary Questions

877

(1)

Rule 104(b)---Conditional Relevance; Rule 901---Requirement of Authentication or Identification

877

(1)

Rule 105---Limited Admissibility

877

(2)

Rule 106---Remainder of or Related Writings or Recorded Statements

879

(1)

Rule 407---Subsequent Remedial Measures

879

(2)

Rule 607---Who May Impeach?

881

(1)

United States v. Webster

882

(2)

Rule 702---Testimony by Experts

884

(1)

Rule 801(d)(1)(A)---Prior Inconsistent Statement Made Under Oath

885

(1)

Rule 801(d)(1)(C)---Prior Identification

886

(1)

Rule 801(d)(2)---Admission by Party Opponent

886

(1)

Rule 1002---Requirement of Original

886

(1)

Problems

886

(2)

Impeachment: Bias

888

(34)

Demonstrating Bias

888

(1)

United States v. Gambler

889

(12)

Author Commentary

901

(1)

Foundation Requirement

902

(1)

United States v. Harvey

903

(3)

Author Commentary

906

(1)

Demonstrating Bias: A Right of Confrontation

907

(1)

Chipman v. Mercer

908

(10)

Author Commentary

918

(1)

Relationship to Other Rules

919

(1)

Rule 402---Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible

919

(1)

Rule 403---Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time

919

(1)

Rule 411---Liability Insurance

920

(1)

Rule 608(b)---Evidence of Specific Instances of Conduct of an Individual Offered for Impeachment Purposes

921

(1)

Rule 610---Religious Beliefs or Opinions

921

(1)

Problems

921

(1)

Impeachment: Psychiatric Condition

922

(13)

Theoretical Relevance

922

(1)

United States v. Lindstrom

922

(7)

Relationship to Other Rules

929

(1)

Rule 103(a)(2)---Rulings on Evidence; Offers of Proof

929

(1)

Rule 401---Relevant Evidence

929

(1)

Rule 501---General Rules of Privilege

930

(1)

Rule 601---General Rules of Competency

931

(1)

Psychiatric Opinions as to Credibility of Witnesses: A Suggested Approach

931

(1)

Author Commentary

932

(1)

Rule 702---Testimony by Experts; Rule 704---Opinion on Ultimate Issue

933

(1)

Problem

934

(1)

Writings

935

(92)

Best Evidence or Original Writing Rule

935

(52)

The Common Law

935

(1)

Preference for Original Writing

935

(1)

What Is a Writing?

936

(1)

United States v. Duffy

936

(2)

Author Commentary

938

(1)

Proving Terms of Writing

939

(1)

Practical Aspect

939

(1)

Meyers v. United States

939

(1)

Author Commentary

940

(1)

Legal Aspect

941

(1)

What Is the Original?

941

(2)

Terms of Writing Must Be Material

943

(1)

Exceptions to the Rule

943

(1)

Original Unavailable, Proponent Not at Fault

943

(1)

Original in Possession of Third Party

944

(1)

Original in Opponent's Possession

944

(1)

Intentional Destruction of Original

945

(1)

Schroedl v. McTague

945

(3)

Original on Public Record

948

(1)

Secondary Evidence: When Original Is Unavailable, Should Courts Prefer The Most Accurate Secondary Evidence?

948

(1)

Federal Rules of Evidence: Rules 1001--1008

949

(1)

Rule 1001---Definitions; Rule 1002---Requirement of Original; Rule 1004---Admissibility of Other Evidence of Contents

949

(1)

Changes from the Common Law

950

(1)

Application of Best Evidence Rule Limited to Proof of Contents of Writing, Recording, or Photograph

951

(1)

Rule 1005---Public Records

952

(1)

Changes from the Common Law

952

(1)

What Is a Public Record under Rule 1005?

952

(1)

Amoco Production Co. v. United States

953

(2)

Author Commentary

955

(1)

Rule 1001(4)---Definition of Duplicate; Rule 1003---Admissibility of Duplicates

956

(1)

Changes from the Common Law

956

(1)

Duplicates and Degrees of Secondary Evidence

957

(1)

Conditions Under Which Duplicates Will Not Be Treated as Originals

957

(1)

``Genuine Questions'' as to Authenticity

957

(1)

Unfairness

958

(1)

Rule 1006---Summaries of Voluminous Writings

959

(1)

Requirements for Admission of Summaries

959

(1)

Needham v. White Laboratories, Inc.

959

(2)

Author Commentary

961

(3)

Evidentiary Status of Summaries

964

(1)

United States v. Smyth

964

(3)

Author Commentary

967

(2)

Summaries as Hearsay

969

(1)

Party Admissions About Contents of Writings

970

(1)

Rule 1007

971

(1)

Who Resolves Preliminary Fact Questions in Applying Best Evidence Rule?

971

(1)

Fauci v. Mulready

971

(2)

Author Commentary

973

(1)

Rule 1008

973

(1)

Seiler v. Lucasfilm Ltd.

974

(4)

Author Commentary

978

(1)

Relationship to Other Rules

979

(1)

Rule 103---Rulings on Evidence

979

(1)

Rule 104---Preliminary Questions

980

(1)

Rule 611---Mode and Order of Interrogation and Presentation

980

(1)

Rule 613---Prior Statements of Witnesses; Rule 1002---Requirement of Original

981

(1)

Rule 703---Bases of Opinion Testimony by Experts

981

(1)

Rule 801(c)---Definition of Hearsay; Rule 802---Hearsay Rule

982

(1)

Rule 803(6)---Business Records Exception to the Hearsay Rule

982

(1)

Ford Motor Co. v. Auto Supply Co.

983

(2)

Author Commentary

985

(1)

Rule 803(7)---Absence of Entry in Business Record; Rule 803(10)---Absence of Public Record or Entry

985

(1)

Rule 901---Requirement of Authentication or Identification; Rule 902---Self-Authentication; Rule 401---Definition of ``Relevant Evidence''; Rule 402---Relevant Evidence Admissible

985

(1)

Problems

986

(1)

Authentication

987

(40)

The Common Law

987

(1)

Requirement of Authentication

987

(1)

Direct Methods of Authentication

987

(1)

Witness With Personal Knowledge

987

(1)

Handwriting Identification

988

(1)

Circumstantial Methods of Authentication

989

(1)

Authenticating Evidence Limited Only by Admissibility

989

(1)

The Reply Doctrine

989

(2)

United States v. Espinoza

991

(4)

Author Commentary

995

(1)

Ancient Document Rule

995

(1)

Official Custody Rule

996

(1)

Attested Documents

996

(1)

Self-Authentication

997

(1)

Federal Rules of Evidence---Rules 901, 902 & 903

998

(1)

Methods of Authentication

998

(1)

Changes from the Common Law

999

(1)

United States v. Wilson

999

(3)

United States v. Clifford

1002

(5)

Distinctive Characteristics in Conjunction with Circumstances

1007

(1)

United States v. Blackwell

1007

(5)

Author Commentary

1012

(1)

Ancient Documents: Are Photographs and Recordings within the Concept?

1012

(1)

Self-Authentication

1013

(1)

Rule 902

1013

(2)

Advisory Committee's Note

1015

(1)

Changes from the Common Law

1015

(1)

What is the Effect of Self-Authentication?

1016

(1)

Limited Scope of Certification

1017

(1)

United States v. Stone

1018

(2)

Effect of Stamped Signatures on Self-Authenticating Documents

1020

(1)

Authentication by Subscribing Witness

1020

(1)

Rule 903

1020

(1)

Advisory Committee's Note

1020

(1)

Relationship to Other Rules

1020

(1)

Rule 104---Preliminary Questions

1020

(1)

Rule 403---Exclusion of Relevant Evidence on the Ground of Prejudice

1021

(2)

Rule 406---Habit; Routine Practice

1023

(1)

Rule 701---Opinion Testimony by Lay Witnesses

1023

(1)

Rule 803(6)---Business Records Exception to the Hearsay Rule

1023

(1)

Problems

1024

(3)

Opinion Testimony---Scientific and Technological Evidence

1027

(164)

Lay Opinion

1027

(16)

The Common Law

1027

(1)

English Rule as Interpreted by American Courts

1027

(1)

Problems With Exclusionary Rule

1028

(1)

Exceptions to Lay Opinion Exclusionary Rule

1028

(1)

Horn v. State

1028

(3)

Author Commentary

1031

(1)

Federal Rules of Evidence---Rule 701

1032

(1)

Changes from the Common Law

1033

(1)

Does ``Primary Facts'' Doctrine Survive Rule 701?

1034

(1)

Breadth of Rule 701

1034

(1)

Lubbock Feed Lots, Inc. v. Iowa Beef Processors, Inc.

1034

(3)

``Rationally Based on the Perception of the Witness''

1037

(1)

Opinion Must Help Jury Either to Understand Witness' Testimony or to Determine Fact in Issue

1037

(1)

Special Topics of Lay Opinion

1038

(1)

Identification from Surveillance Photographs

1038

(1)

Another Person's State of Mind

1039

(2)

Lay Opinions on Ultimate Issues

1041

(1)

Relationship to Rule 602---Lack of Personal Knowledge

1041

(1)

Problems

1041

(2)

Expert Opinions

1043

(148)

The Common Law

1043

(1)

Role of Expert Witness

1043

(2)

The Hypothetical Question

1045

(1)

Ingram v. McCuiston

1045

(7)

Author Commentary

1052

(1)

Expert Testimony on Purported Scientific Evidence

1053

(1)

Frye v. United States

1053

(1)

Author Commentary

1054

(2)

Federal Rules of Evidence---Rules 702, 703 and 705

1056

(1)

Changes from the Common Law---Rule 702

1056

(1)

``Will Assist the Trier of Fact''---Relaxed Standard for Expert Opinion Testimony

1057

(1)

In Re Japanese Electronic Products Antitrust Litigation

1058

(1)

Author Commentary

1059

(1)

Subjects of Expert Testimony

1060

(1)

Any Appropriate Topic, in Court's Discretion

1060

(2)

Expert's Opinion About Inherent Dangers of Eyewitness Identification

1062

(3)

Author Commentary

1065

(2)

Testimony About Memory

1067

(1)

Credibility of Particular Witnesses

1068

(1)

Expert Opinions on ``Human Factors''

1068

(1)

The Law

1069

(1)

Did the Federal Rules Announce A New Standard of Admissibility For Expert Opinion Evidence?

1069

(1)

Daubert v. Merrell Dow Pharmaceuticals, Inc

1070

(9)

Daubert v. Merrell Dow Pharmaceuticals, Inc.

1079

(11)

Scope of Judge's ``Gatekeeping'' Role

1090

(1)

The Unresolved Question---Why Should Scientific Standards Control Admissibility?

1091

(1)

Expert Testimony Based on Non-Scientific Knowledge---Does Daubert Still Apply?

1092

(1)

Kumho Tire Company, Ltd., v. Carmichael

1093

(8)

Standard of Appellate Review of Trial Judge's Rulings on Scientific and Technical Evidence

1101

(1)

Did Daubert Really Change The Legal Landscape From the Post-Frye World?

1102

(1)

The Wisdom of Importing Scientific Standards of Proof Into Evidentiary Decisions In The Courtroom

1103

(1)

Effect of December 2000 Amendments on Daubert's Interpretation of Rule 702

1104

(2)

``To a Reasonable Certainty''

1106

(2)

Breidor v. Sears, Roebuck and Co.

1108

(4)

Author Commentary

1112

(1)

The Expert's Qualifications

1113

(1)

Determining the Expert's Qualifications

1113

(1)

Mannino v. International Manufacturing Co.

1114

(3)

Author Commentary

1117

(2)

Qualification Based on Experience

1119

(1)

Qualifying the Expert Witness: A Practical Illustration

1120

(1)

Goldstein Trial Techniques

1120

(5)

Lay Opinions under Rule 701 Versus Expert Opinions under Rule 702

1125

(1)

Author Commentary

1126

(1)

Basis of Expert Opinion Testimony---Rule 703

1126

(1)

Basis of Opinion Not Limited to Data Presented at Trial

1127

(1)

``Facts or Data'': Does This Include Opinions?

1127

(3)

``Reasonably Relied upon by Experts in the Particular Field''

1130

(1)

Reliance Requirement Supplies Reliability

1130

(1)

Zenith Radio Corp. v. Matsushita Electrical Industrial Co.

1130

(4)

Open-Ended Hearsay Exception for Expert Witnesses

1134

(2)

Author Commentary

1136

(2)

The 2000 Amendments to Rule 703: Underlying Facts Not Admissible Unless Their Probative Value Substantially Outweighs Their Prejudicial Effect

1138

(3)

Test Applies to Basis or Methodology, Not Opinion Itself

1141

(1)

Disclosure of Expert's Underlying Facts or Data---Rule 705

1141

(1)

General Effects of Rule

1141

(1)

Proponent's Failure to Elicit Basis of Opinion

1142

(1)

Increased Need for Pretrial Discovery

1142

(1)

Eliminating Need for Hypotheticals

1143

(1)

Iconco v. Jensen Construction Co.

1144

(1)

Author Commentary

1145

(1)

Impeaching the Expert Witness

1146

(2)

The Unanswered Expert

1148

(1)

Battle of the Experts---Rule 706

1148

(2)

Note-Taking by Jurors

1150

(1)

The ``Ultimate Issue'' Rule

1151

(1)

The Common Law

1151

(1)

Opinion Testimony Invading the Province of the Jury

1151

(2)

Ultimate Issue Rule---Rule 704

1153

(1)

Changes from the Common Law

1154

(1)

Limited Resurrection of Ultimate Issue Rule

1154

(3)

United States v. West

1157

(4)

Author Commentary

1161

(1)

Residual Aspect of Ultimate Issue Rule---Opinions Expressed in Terms of Unexplored Legal Criteria

1161

(5)

Application of Facts to Controlling Legal Principles Versus Determining which Legal Principles Control

1166

(1)

Specht v. Jensen

1166

(6)

Author Commentary

1172

(1)

Federal Rules and the Common-Law Prohibition on ``Oath-Helping''

1173

(1)

Relationship to Other Rules

1174

(1)

Rule 104(a)---Preliminary Questions of Admissibility Generally

1174

(3)

Rule 201---Judicial Notice of Adjudicative Facts

1177

(1)

Rule 403---Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time

1177

(1)

Rule 602---Lack of Personal Knowledge

1178

(1)

Rule 608---Evidence of Character and Conduct of Witness

1179

(1)

United States v. Barnard

1179

(1)

Author Commentary

1180

(3)

Rule 615---Exclusion of Witnesses

1183

(1)

Morvant v. Construction Aggregates Corp.

1183

(3)

Rule 802---Hearsay Rule

1186

(1)

Rule 803(6)---Records of Regularly Conducted Activity

1186

(1)

Rule 803(8)(C)---Public Records and Reports: Findings Resulting from Investigations Authorized by Law

1187

(1)

Rule 803(18)---Learned Treatises

1187

(1)

Rule 1002---Requirement of Original: The Best Evidence Rule

1188

(1)

Problems

1188

(3)

Privileges

1191

(118)

Introduction

1191

(1)

Spousal Privilege

1192

(13)

Scope and Rationale

1192

(1)

Exceptions to Spousal Privilege

1192

(1)

Spousal Privilege under Federal Rules of Evidence

1193

(1)

Rule 501

1193

(1)

United States v. Premises Known as 281 Syosset Woodbury Rd.

1194

(11)

Physician-Patient Privilege

1205

(2)

Attorney-Client Privilege

1207

(49)

Scope and Rationale

1207

(1)

In General

1207

(1)

Confidential Communications from Client

1207

(1)

Characteristics of Protected Communications

1207

(1)

In Re Ampicillin Antitrust Litigation

1208

(3)

Author Commentary

1211

(1)

In Re LTV Securities Litigation

1212

(1)

Author Commentary

1213

(1)

Expectation of Confidentiality

1214

(1)

Expansion of Circle of Confidentiality

1215

(1)

City & County of San Francisco v. Superior Court

1216

(2)

Author Commentary

1218

(1)

Communication Made for Purpose of Obtaining Legal Advice or Assistance

1218

(1)

Diversified Industries Inc. v. Meredith

1219

(6)

Author Commentary

1225

(1)

Relationship of Communication to Legal Advice

1225

(2)

Attorney-Client Privilege in Corporate Context

1227

(1)

General Application of Privilege in Corporate Setting

1227

(1)

Radiant Burners, Inc. v. American Gas Association

1227

(4)

Author Commentary

1231

(1)

Radiant Burners, Inc. v. American Gas Association

1231

(3)

Author Commentary

1234

(1)

Who Personifies the Corporate Client?

1234

(1)

Upjohn Co. v. United States

1235

(6)

Author Commentary

1241

(2)

Maintenance of Confidentiality

1243

(1)

Stockholders' Right to Confidential Corporate Communications

1243

(1)

Garner v. Wolfinbarger

1244

(5)

Author Commentary

1249

(1)

Duration of Privilege

1249

(1)

Crime-Fraud Exception to Privilege

1249

(1)

In Re Berkley and Co.

1250

(4)

Author Commentary

1254

(2)

Waiver of Attorney-Client Privilege

1256

(38)

Waiver Rule Summarized

1256

(1)

Acts of Waiver

1257

(1)

Allegations of Ineffective Assistance of Counsel

1257

(1)

Pruitt v. Peyton

1257

(2)

Disclosure to Third Parties

1259

(1)

In General

1259

(1)

What Level of Disclosure Waives Privilege?

1259

(1)

Whose Conduct May Result in Waiver or Destruction of Privilege?

1260

(1)

Voluntary Disclosures by Client

1260

(1)

Commodity Futures Trading Commission v. Weintraub

1261

(4)

Author Commentary

1265

(1)

Breaches of Confidentiality by Attorney

1266

(1)

In Re Grand Jury Investigation of Ocean Transportation

1266

(2)

Author Commentary

1268

(1)

Breaches of Confidentiality by Third-Party Initiative

1269

(1)

Suburban Sew'n Sweep, Inc. v. Swiss-Bernina, Inc.

1269

(5)

Author Commentary

1274

(1)

Involuntary Disclosures

1274

(1)

Consequences of Waiver

1275

(1)

In General

1275

(1)

``Subject Matter'' Waiver

1275

(1)

Amca International Corp. v. Phipard

1276

(5)

Author Commentary

1281

(1)

``Limited Waiver''

1282

(4)

Special Waiver Issues

1286

(1)

Disclosure Among Codefendants and Co-Counsel

1286

(1)

United States v. McPartlin

1287

(2)

Joint Representation in One Case, Adversaries in Another

1289

(1)

Truck Insurance Exchange v. St. Paul Fire & Marine Insurance Co.

1289

(2)

Medical and Psychiatric Advisors to Attorney

1291

(1)

State v. Pratt

1292

(1)

Author Commentary

1293

(1)

Relationship of Privileges to Other Rules

1294

(2)

Rule 104(a)---Preliminary Questions

1294

(1)

Rule 612---Writing Used to Refresh Memory

1294

(2)

New Privilege Rules Recognized under Authority Granted in Rule 501 (``In Light of Reason and Experience'')

1296

(13)

In Re Grand Jury Subpoena

1298

(2)

Author Commentary

1300

(1)

Problems

1301

(8)

Shortcuts to Proof

1309

Presumptions

1309

(54)

The Common Law

1309

(1)

Presumptions Reallocate Burdens of Production and Persuasion

1309

(1)

On What Basis Are Presumptions Created?

1309

(1)

Characteristics of a True Presumption

1310

(1)

Rebutting Presumptions

1311

(1)

Effect of Evidence Rebutting the Presumption

1312

(1)

Two Basic Theories

1312

(1)

The Thayer/Wigmore View

1312

(1)

Texas Department of Community Affairs v. Burdine

1313

(4)

Author Commentary

1317

(2)

The Morgan/McCormick View

1319

(1)

Conflicting Presumptions

1319

(1)

Legille v. Dann

1320

(7)

Author Commentary

1327

(1)

Presumptions Against Criminal Defendants

1328

(1)

Ulster County Court v. Allen

1329

(9)

Author Commentary

1338

(4)

Is the Constitutional Requirement of a Rational Connection Applicable to Presumptions in Civil Cases?

1342

(4)

Federal Rules of Evidence---Rule 301

1346

(1)

Changes from the Common Law

1346

(1)

What Presumptions?

1347

(1)

Electronic Evidence: Law and Practice

1347

(2)

Rule 301 Does Not Cover Criminal Actions and Actions Controlled by State Law, and Does Not Apply Where ``Otherwise Provided''

1349

(1)

Rule 302

1350

(4)

Use of Presumptions Against Prosecution in Criminal Cases: What Rule Controls Their Admissibility?

1354

(1)

Rule 303

1355

(1)

Instructing the Jury on the Rebutted Presumption

1356

(1)

Relationship to Other Rules

1357

(1)

Rule 104(b)---Preliminary Questions of Conditional Relevance

1357

(1)

Rule 201---Judicial Notice of Adjudicative Facts

1357

(1)

Rule 803(6)---Records of Regular Conducted Activity; Rule 803(8)(C)---Public Records and Reports

1358

(1)

Rule 901---Authentication; The Reply Doctrine

1359

(2)

Rule 902---Self-authentication

1361

(1)

Problems

1361

(2)

Judicial Notice

1363

The Common Law

1363

(1)

Purpose and Effect of Judicial Notice

1363

(1)

Judicial Notice of Fact

1363

(1)

Facts Subject to Judicial Notice

1363

(1)

Varcoe v. Lee

1363

(4)

Author Commentary

1367

(1)

Indisputable Facts

1368

(1)

Commonly Known Facts

1368

(1)

Facts That are Easily Verifiable from Unimpeachable Sources

1369

(1)

Nicketta v. National Tea Co.

1370

(3)

Author Commentary

1373

(1)

Nonadjudicative Facts: Facts Underlying Logical Reasoning and Judgment

1373

(1)

Legislative Facts---Facts upon Which the Law is Interpreted and Applied

1374

(2)

Judicial Notice of Law

1376

(1)

Effect of Taking Judicial Notice

1377

(3)

Procedural Aspects of Judicial Notice

1380

(1)

Federal Rules of Evidence---Rule 201

1381

(1)

Changes from the Common Law

1382

(1)

Distinction Between Legislative and Adjudicative Facts

1383

(1)

General Principles Applied by Courts

1383

(1)

Judicial Notice: Rule 201 of the Federal Rules of Evidence

1384

(3)

Do Courts Distort Legislative-Adjudicative Fact Distinction in Criminal Cases to Avoid the Effect of Rule 201(g)?

1387

(1)

Verified Facts---Rule 201 Is Not Intended to Make Judge an Expert Witness

1388

(2)

Parties Have Right to be Heard, No Right to Prior Notification; How Important is Prior Notification?

1390

(1)

Resolution of the Morgan-Wigmore Controversy---Why the Morgan View? What are The Implications?

1391

(1)

Judicial Notice: Rule 201 of the Federal Rules of Evidence

1391

(2)

Taking Judicial Notice After Trial---Fairness Limits Court's Power to Judicially Notice Facts Under Rule 201(f)

1393

(1)

Tension Between Power of Appellate Courts to Take Judicial Notice and Requirement of Rule 201(g) that Judicial Notice in Criminal Cases be Permissive

1393

(1)

Does Rule 201(g) Limit Power of Appellate Courts to Take Judicial Notice in Criminal Trials?

1393

(1)

United States v. Jones

1394

(2)

Does Mandatory Jury Instruction by Trial Court, or Taking of Judicial Notice by Appellate Court, Violate Criminal Defendant's Right to Trial by Jury?

1396

(1)

Gold v. United States

1397

(3)

Judicial Notice of Law---A Procedural Matter

1400

(1)

Relationship to Other Rules

1401

(1)

Rule 103(a)(1)---Rulings on Evidence

1401

(1)

Rule 104---Preliminary Questions

1401

(1)

Rule 401---Definition of ``Relevant Evidence''; Rule 402---Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible; Rule 403---Exclusion of Relevant Evidence; Rule 702---Testimony by Experts; Rule 703---Basis of Opinion Testimony by Experts; Rule 901(b)(9)---Requirement of Authentication or Identification of a Process or System

1401

(1)

State v. Tomanelli

1402

(2)

Rule 803(18)---Learned Treatises

1404

(1)

Problems

1405

Table of Cases

(1)

Index

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Evidence: Common Law And Federal Rules Of Evidence

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