Evidence

From CyberOne Wiki

January 4-21, 2010
M,T,W,Th,F 9:00 AM - 12:00 PM Professor Charles R. Nesson
Harvard Law School

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Contents 1 THE FEDERAL RULES OF EVIDENCE 1.1 FRE 101 - Scope 1.2 FRE 102 - Purpose and Construction 1.3 FRE 103. Rulings on Evidence 1.4 FRE 104(a)- Disputed Facts that Relate to Legal Rulings (Legislative Facts) 1.5 FRE 104(b)- Disputed Facts that Relate to Jury Issues (Adjudicative Facts) - Relevancy conditioned on fact. 1.5.1 The Rim 1.6 FRE 104(c) - Coerced Confessions 1.7 FRE 105 - Limited Admissibility 2 JUDICIAL NOTICE of UNDISPUTED FACTS 2.1 FRE 201. Judicial Notice of Adjudicative Facts 3 ALLOCATION OF BURDENS OF PROOF AND THE EFFECT OF PRESUMPTIONS 3.1 FRE 301. Presumptions in General Civil Actions and Proceedings 4 RELEVANCE 4.1 FRE 401. Definition of "Relevant Evidence" 4.2 FRE 402 - Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible 4.2.1 King Solomon's Judgment 4.2.2 Time Travel to Old Salem 4.2.3 The Burned Butt 4.2.4 Smith v. Rapid Transit, Inc. 4.2.5 Blue Bus 4.2.6 License Plate Roulette 4.2.7 L.J. Cohen, The Probable and the Provable(1977) 4.2.8 Conjunction 4.2.9 Prison Yard 4.2.10 Nesson, The Evidence of the Event? 4.3 Limited Admissibility and Exclusion for Unfair Prejudice 4.3.1 FRE 403 - Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time 4.3.1.1 Gory Photographs 4.3.1.2 Picture of a Fetus 4.4 FRE 404 - The Relevance and Proof of Character 4.4.1 People v. Zackowitz 4.4.2 A Return to the Scene of the Crime 4.4.3 Res Gestae 4.4.4 "Money or Death" 4.4.5 Rex v. Smith 4.4.6 Huddleston v. United States 4.5 FRE 405 - Methods of Proving Character 4.5.1 Proof of the Defendant's Good Character 4.5.2 Proof of the Defendant's Violent Character 4.5.3 The Mayor 4.5.4 Tit for Tat 4.5.5 The Acrobatic Driver 4.6 FRE 406 - Character and Habit 4.6.1 The Acrobatic Driver: A Reprise 4.7 FRE 407 - Subsequent Remedial Measures 4.7.1 Locking the Barn Door 4.7.2 The D-Craft 184 Crash 4.8 FRE 408- Compromise and Offers to Compromise 4.8.1 Mr. Nice Guy 4.9 FRE 412 - Character Evidence in Cases of Sexual Assault 4.9.1 Prostitution, Rape, or Both? 4.9.2 Explanation for Pregnancy 4.9.3 Commonwealth v. Gouveia 4.9.4 False Accusation 5 PRIVILEGE 5.1 In Re Farber (State v. Jascalevich) 5.2 Farber Variations: Clergymen, Psychiatrists, Lawyers 5.3 FRE 501 Privileges 5.3.1 Is There Justification for the Attorney Client Privilege? 5.4 FRE 502. Attorney-Client Privilege and Work Product; Limitations on Waiver 5.5 Proposed but Not Enacted Rule 503. Lawyer-Client Privilege 5.5.1 The Blackacre Fraud 5.5.2 The Eavesdropper 5.5.3 The Energetic Investigator 5.5.4 Hit and Run 5.5.5 Who's Got the Button? 6 WITNESSES 6.1 FRE 601. General Rule of Competency 6.2 FRE 602. Lack of Personal Knowledge 6.3 FRE 603. Oath or Affirmation 6.4 FRE 604. Interpreters 6.5 Rule 605. Competency of Judge as Witness 6.6 Rule 606. Competency of Juror as Witness 6.7 FRE 607. Who May Impeach 6.8 FRE 608. Evidence of Character and Conduct of Witness 6.9 FRE 609. Impeachment by Evidence of Conviction of Crime 6.10 FRE 610. Religious Beliefs or Opinions 6.11 FRE 611. Mode and Order of Interrogation and Presentation 6.12 FRE 612. Writing Used to Refresh Memory 6.13 FRE 613. Prior Statements of Witnesses 6.14 FRE 614. Calling and Interrogation of Witnesses by Court 6.15 FRE 615. Exclusion of Witnesses 7 EXPERTS 7.1 FRE 701. Opinion Testimony by Lay Witnesses 7.1.1 Mrs. Jones's Baby 7.1.2 Presidential Debate 7.2 FRE 702. Testimony by Experts 7.3 FRE 703. Bases of Opinion Testimony by Experts 7.3.1 Daubert v. Merrell Dow Pharmaceuticals, Inc. 7.3.2 Daubert v. Merrell Dow Pharmaceuticals, Inc. (on Remand) 8 HEARSAY 8.1 FRE 801. Definitions 8.2 FRE 802. Hearsay Rule 8.2.1 Murder in the Ajax Building 8.2.2 Speaking Out 8.2.3 Captain Cook and Davey Jones 8.2.4 Hot Pursuit? 8.2.5 The Stolen BMW 8.2.6 He Who Laughs Last ... 8.2.7 P v. Greed Power and Light Company 8.3 FRE 803. Hearsay Exceptions; Availability of Declarant Immaterial 8.3.1 Stagger P 8.3.2 Strong Feelings and Future Plans 8.3.3 Negligent Entrustment 8.3.4 Window Washer Witnesses 8.3.5 Hospital Reports 8.4 FRE 804. Hearsay Exceptions; Declarant Unavailable 8.4.1 "Forgetful" Witness 8.4.2 Dying Declarations 8.4.3 "Speak Up, Please" 8.5 FRE 805. Hearsay Within Hearsay 8.6 FRE 806. Attacking and Supporting Credibility of Declarant 8.7 FRE 807. Residual Exception 9 CONFRONTATION 9.1 The Treason Trial of Sir Walter Raleigh 9.2 The Sixth Amendment 9.3 Mattox v. United States 9.4 Pointer v. Texas 9.5 Crawford v. Washington 9.6 Davis v. Washington 9.7 Hammon v. Indiana 9.8 Melendez-Diaz v. Massachusetts

THE FEDERAL RULES OF EVIDENCE

FRE 101 - Scope

These rules govern proceedings in the courts of the United States and before United States bankruptcy judges and United States magistrate judges, to the extent and with the exceptions stated in rule 1101.

FRE 102 - Purpose and Construction

These rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.

FRE 103. Rulings on Evidence

(a) Effect of erroneous ruling.

Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and

(1) Objection. - In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context; or

(2) Offer of proof. - In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.

Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.

(b) Record of offer and ruling

The court may add any other or further statement which shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon. It may direct the making of an offer in question and answer form.

(c) Hearing of jury

In jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or asking questions in the hearing of the jury.

(d) Plain error

Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court.

FRE 104(a)- Disputed Facts that Relate to Legal Rulings (Legislative Facts)

Rule 104. Preliminary Questions

(a) Questions of admissibility generally.

Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b). In making its determination it is not bound by the rules of evidence except those with respect to privileges.

FRE 104(b)- Disputed Facts that Relate to Jury Issues (Adjudicative Facts) - Relevancy conditioned on fact.

When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.

The Rim

A 1989 Ford and a 1991 Chevy collide at an intersection in the country. The owner of the Ford (F) claims that the owner of the Chevy (C) was speeding and did not slow down for the intersection. F's investigator found a rim from a headlight in a field 200 feet from the point of impact. F has an expert witness prepared to testify that in order for the headlight rim to have been thrown 200 feet the Chevy had to be going at least 75 mph. F puts the investigator on the stand; she testifies to finding the rim, specifies the precise spot where she found it, and identifies the rim she found. F then offers the rim in evidence. What ruling? How will the judge go about deciding?

Suppose F tells the judge about his intention to call the expert and outlines the testimony expected from the expert?

Does F need a witness first who can identify the rim as having come from a 1991 Chevy? From C's 1991 Chevy? Suppose C contests this proof with a witness who claims that the rim is from a 1987 Caddy? What ruling? By what procedure and by what standard does the judge go about deciding?

FRE 104(c) - Coerced Confessions

Hearings on the admissibility of confessions shall in all cases be conducted out of the hearing of the jury. Hearings on other preliminary matters shall be so conducted when the interests of justice require, or when an accused is a witness and so requests.

FRE 105 - Limited Admissibility

When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.

JUDICIAL NOTICE of UNDISPUTED FACTS

FRE 201. Judicial Notice of Adjudicative Facts

(a) Scope of rule.

This rule governs only judicial notice of adjudicative facts.

(b) Kinds of facts.

A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.

(c) When discretionary.

A court may take judicial notice, whether requested or not.

(d) When mandatory.

A court shall take judicial notice if requested by a party and supplied with the necessary information.

ALLOCATION OF BURDENS OF PROOF AND THE EFFECT OF PRESUMPTIONS

FRE 301. Presumptions in General Civil Actions and Proceedings

In all civil actions and proceedings not otherwise provided for by Act of Congress or by these rules, a presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption, but does not shift to such party the burden of proof in the sense of the risk of nonpersuasion, which remains throughout the trial upon the party on whom it was originally cast.

RELEVANCE

FRE 401. Definition of "Relevant Evidence"

"Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

FRE 402 - Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible

All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible.

King Solomon's Judgment

Then two harlots came to the king, and stood before him. The one woman said, "Oh, my lord, this woman and I dwell in the same house; and I gave birth to a child while she was in the house. Then on the third day after I was delivered, this woman also gave birth; and we were alone; there was no one else with us in the house, only we two were in the house. And this woman's son died in the night, because she lay on it. And she arose at midnight, and took my son from beside me, while your maidservant slept, and laid it in her bosom, and laid her dead son in my bosom.

"When I rose in the morning to nurse my child, behold, it was dead; but when I looked at it closely in the morning, behold, it was not the child that I had borne. But the other woman said, "No, the living child is mine, and the dead child is yours. The first said, "No, the dead child is yours, and the living child is mine. Thus they spoke before the king.

Then the king said, "The one says, 'This is my son that is alive, and your son is dead'; and the other says, 'No, but your son is dead and my son is the living one.' " And the king said, "Bring me a sword." So a sword was brought before the king. And the king said, "Divide the living child in two, and give half to the one, and half to the other."

Then the woman whose son was alive said to the king, because her heart yearned for her son, "Oh, my lord, give her the living child, and by no means slay it. But the other said, "It shall be neither mine nor yours; divide it. Then the king answered and said, "Give the living child to the first woman, and by no means slay it; she is its mother.

And all Israel heard of the judgment which the king had rendered; and they stood in awe of the king, because they perceived that the wisdom of God was in him, to render justice.

Time Travel to Old Salem

Dr. Who sets the controls of the time machine for Salem, Massachusetts, 1686, and arrives in a strange, primitive society prone to beliefs and superstitions about witches, goblins, warlocks, and the Devil.

Shortly before Dr. Who's arrival, two women and a man who reside in the settlement are accused by leading elders of practicing witchcraft. According to local practice, they are placed in the stockade until they can be tried in the Salem manner. In Salem at that time, those accused of witchcraft were given two options. One option was to submit to a trial, which consisted of tying the accused to a board and dunking the person in a "pure pond while the deacon recited the Lord's Prayer three times. If the accused survived the dunking, the purity of the accused's soul was vindicated and he or she was set free; if the accused did not survive, guilt and sentence were simultaneously announced. No one recalled any acquittals as a result of this process. Alternatively, the accused could accept banishment from the colony, which meant exile to the western wilderness. Once banished, no one had ever been seen again.

Impressed by Dr. Who's mechanized mode of transportation, the Salem elders ask Dr. Who to preside over the trial of the three accuseds. Dr. Who agrees on the condition that trial be conducted by what we now think of as modern trial procedures. The elders agree but insist that the jurors be selected from among their ranks. At trial, the deacon serving as prosecutor seeks to present evidence that prior to Dr. Who's arrival the three accuseds refused to submit to trial by dunking.

Should this proof be admitted? Is it logically relevant? Why should anything be kept from the trier of fact?

The Burned Butt

Auto accident tort action. D, by cross-examination, unsuccessfully sought to force from P the admissions that he was driving under the influence of liquor and at the time of the accident was attempting to light a cigarette. D also sought to testify that two days after the accident and after P's demolished vehicle had been removed ten miles from the scene of the accident, she found a slightly burned cigarette on the floorboard of P's vehicle. Should D's testimony be admitted? Why?

Smith v. Rapid Transit, Inc.

317 Mass. 469, 58 N.e.2d 754 (1945)

SPALDING, Justice. The decisive question in this case is whether there was evidence for the jury that the plaintiff was injured by a bus of the defendant that was operated by one of its employees in the course of his employment. If there was, the defendant concedes that the evidence warranted the submission to the jury of the question of the operator's negligence in the management of the bus. The case is here on the plaintiff's exception to the direction of a verdict for the defendant.

These facts could have been found: While the plaintiff at about 1:00 a.m. on February 6, 1941, was driving an automobile on Main Street, Winthrop, in an easterly direction toward Winthrop Highlands, she observed a bus coming toward her which she described as a "great big, long, wide affair. The bus, which was proceeding at about forty miles an hour, "forced her to turn to the right, and her automobile collided with a "parked car. The plaintiff was coming from Dorchester. The department of public utilities had issued a certificate of public convenience or necessity to the defendant for three routes in Winthrop, one of which included Main Street, where the accident occurred, and this was in effect in February, 1941. "There was another bus line in operation in Winthrop at that time but not on Main Street. According to the defendant's timetable, buses were scheduled to leave Winthrop Highlands for Maverick Square via Main Street at 12:10 a.m., 12:45 a.m., 1:15 a.m., and 2:15 a.m. The running time for this trip at that time of night was thirty minutes.

The direction of a verdict for the defendant was right. The ownership of the bus was a matter of conjecture. While the defendant had the sole franchise for operating a bus line on Main Street, Winthrop, this did not preclude private or chartered buses from using this street; the bus in question could very well have been one operated by someone other than the defendant. It was said in Sargent v. Massachusetts Accident Co., 307 Mass. 246, 250, 29 N.E.2d 825, 827, that it is "not enough that mathematically the chances somewhat favor a proposition to be proved; for example, the fact that colored automobiles made in the current year outnumber black ones would not warrant a finding that an undescribed automobile of the current year is colored and not black, nor would the fact that only a minority of men die of cancer warrant a finding that a particular man did not die of cancer. The most that can be said of the evidence in the instant case is that perhaps the mathematical chances somewhat favor the proposition that a bus of the defendant caused the accident. This was not enough. A "proposition is proved by a preponderance of the evidence if it is made to appear more likely or probable in the sense that actual belief in its truth, derived from the evidence, exists in the mind or minds of the tribunal notwithstanding any doubts that may still linger there. Sargent v. Massachusetts Accident Co., 307 Mass. 246, 250, 29 N.E.2d 825, 827....

Exceptions overruled.

Blue Bus

P is negligently run off the road into a parked car by a blue bus. P is prepared to prove that D operates four-fifths of all the blue buses that use the route. What effect, if any, should such proof be given?

License Plate Roulette

Personal injury action by P against Lawton's Supermarket. P was run down at an intersection in Lincoln, Massachusetts, by a truck with a Massachusetts license plate with five characters, the first three characters being "LAW". P did not see the last two characters on the license plate. At trial, evidence is presented that Lawton's owns four trucks whose license plates read "LAW01" to "LAW04 and that Lawton's trucks were on the road making deliveries at the time of the accident. Lawton's introduces evidence that there are two other trucks with Massachusetts license plates that read "LAW -- --, one garaged in the neighboring town of Lexington and one in Springfield, 100 miles away.

What is the probability that the truck that hit P belongs to Lawton's? Should the statistical evidence be admitted? Is the evidence sufficient to support a verdict for P?

L.J. Cohen, The Probable and the Provable(1977)

Consider, for example, a case in which it is common ground that 499 people paid for admission to a rodeo, and that 1,000 are counted on the seats, of whom A is one. Suppose no tickets were issued and there can be no testimony as to whether A paid for admission or climbed over the fence. So by any plausible criterion of mathematical probability there is a .501 probability, on the admitted facts, that he did not pay. The mathematicist theory would apparently imply that in such circumstances the rodeo organizers are entitled to judgement against A for the admission-money, since the balance of probability (and also the difference between prior and posterior probabilities) would lie in their favour. But it seems manifestly unjust that A should lose his case when there is an agreed mathematical probability of as high as .499 that he in fact paid for admission.

Indeed, if the organizers were really entitled to judgement against A, they would presumably be equally entitled to judgement against each person in the same situation as A. So they might conceivably be entitled to recover 1,000 admission-moneys, when it was admitted that 499 had actually been paid. The absurd injustice of this suffices to show that there is something wrong somewhere. But where?...

An important part of the trouble seems to be that, if standards of proof are interpreted in accordance with a theory of probability that has a complementational principle for negation, the litigants are construed as seeking to divide a determinate quantity of case-merit, as it were, between them. Such an interpretation treats it as an officially accepted necessity that the merit of the loser's case in a civil suit varies inversely with that of the winner's, and this generates paradox where proof is allowed on the mere balance of the two probabilities. Nor can we say thenas lawyers sometimes do say in practicethat the defendant's case is equally good on the facts in both of two similar lawsuits, while the plaintiff's case is better in one than the other. But we can say this quite consistently, and avoid the paradox, if we abandon any complementational principle for negation. We may then suppose litigants to be taking part in a contest of case-strength or case-weight, rather than dividing a determinate quantity of case-merit. The only possibility of injustice that is then officially countenanced is the possibility that one side may not have put forward as strong a case as it could. But where that happens it is the fault of the litigant or of his lawyers or witnesses, not of the legal system.... [I]f standards of juridical proof are interpreted in terms of inductive, rather than mathematical, probabilities this is precisely what follows.

The point under discussion has not gone unnoticed in the courts. A Massachusetts judge once remarked

It has been held not enough that mathematically the chances somewhat favour a proposition to be proved; for example, the fact that coloured automobiles made in the current year outnumber black ones would not warrant a finding that an undescribed automobile of the current year is coloured and not black.... After the evidence has been weighed, that proposition is proved by a preponderance of evidence if it is made to appear more likely or probable in the sense that actual belief in its truth, derived from the evidence, exists in the mind or minds of the tribunal notwithstanding any doubts that may still linger there.

In other words the standard of proof in civil cases is to be interpreted in terms leading one to expect that, after all the evidence has been heard, a balance of probability in favour of a certain conclusion will produce belief in the truth of that conclusion among reasonable men. So we need a concept of probability that admits a threshold for rational acceptance, or moderate belief, which is quite distinct from the threshold for belief beyond reasonable doubt.

Conjunction

Assume that a probabilistically-minded jury, having heard and weighed the evidence, concludes that the likelihood that the defendant was negligent is .6, the likelihood that the defendant caused the plaintiff's injury is .6, and that the evidence of negligence is entirely independent of the evidence of causation. Should the jury decide for the plaintiff or for the defendant?

Prison Yard

In an enclosed yard are 25 identically dressed prisoners and a prison guard. The sole witness is too far away to distinguish features. He sees the guard, recognizable by his uniform, trip and fall, apparently knocking himself out. The prisoners huddle and argue. One breaks away from the others and goes to a shed in the corner of the yard to hide. The other 24 set upon the fallen guard and kill him. After the killing, the hidden prisoner emerges from the shed and mixes with the other prisoners. When the authorities later enter the yard, they find the dead guard and the 25 prisoners.

The prosecutor indicts one of the prisoners--call him prisoner #1. If the only evidence at trial is the testimony of the distant witness, is prisoner #1 entitled to a directed verdict of acquittal?

Suppose, in addition, that the prosecutor calls prisoner #2 as a witness for the prosecution, and prisoner #2 testifies that it was he who disassociated himself from the others and hid in the shed. Is prisoner #1 now entitled to a directed verdict of acquittal?

Nesson, The Evidence of the Event?

98 Harv. L. Rev. 1357 (1985)

Many decision-theory modes suggest that factfinders should base their decisions on the laws of probability in order to minimize the costs of erroneous judicial decisions. These models ignore the judicial function of generating acceptable verdicts which reflect and project substantive legal rules.... A court must generate an acceptable account of what actually happened as a predicate to imposing a sanction for violation of a substantive legal rule.... Many procedural and structural mechanisms of the legal system serve to enhance the acceptability of judicial verdicts.... The goal of generating acceptable verdicts is not met simply by choosing the verdict that is most probably accurate. Acceptable verdicts and probable verdicts might appear to coincide, given that one obvious way to gain public acceptance is to search for truth. But the correlation between probability and acceptability is not exact: a probable verdict may not be acceptable, and an acceptable verdict may not be probable.

Cases of naked statistical proof present the most provocative example of probable verdicts that are unacceptable. In these cases, the evidence suggests a sufficiently high numerical probability of liability, but the absence of deference-inducing mechanisms in the judicial process is such that the public is unable to view a verdict against the defendant as a statement about what actually happened. The statistical nature of the evidence precludes both acceptance of the verdict against the defendant and internalization of the underlying norms.

Decision theorists have tried, with great difficulty, to accommodate the blue bus case in their models. The logic of the standard decision-theory model holds that the plaintiff is entitled to win because he has shown, much more probably than not, that a bus owned by the Blue Bus Company ran him off the road. But most decision theorists have suggested that courts should grant a directed verdict to the defendant. The problem for the decision theorists, then, has been to explain their answer to the blue bus hypothetical without having to abandon their theory.

Professor Tribe has attempted to solve the decision theorists' problem. He has asserted that verdicts are based on subjective probability assessments. Although the plaintiff's objective proof indicates an 80% likelihood that the defendant's bus caused him to be injured, a juror is not bound to believe this probability. The very tenuousness of the plaintiff's evidence, Tribe argues, may cause the juror to feel some skepticism about the plaintiff's case. This skepticism may be enough to reduce the juror's subjective probability assessment of the defendant's liability to less than 50%. The juror presumably believes that if the defendant's bus really had forced the plaintiff off the road, the plaintiff would have had better proof; all told, the odds are less than fifty-fifty that it was the defendant's bus.

Tribe's argument explains how a juror might find against the plaintiff, but the actual cases involving the blue bus hypothetical do not pose that problem. Plaintiffs in such cases would almost certainly lose by directed verdict; the evidence would never reach the jury. Tribe's argument explains why a court should refuse to grant a directed verdict to the plaintiff, but his analysis does not explain why the judge should throw the plaintiff out of court. The jurors could arrive at a subjective probability higher than 50%; no objective evidence compels a juror to drop his subjective probability so drastically that the plaintiff must lose. The logic of Tribe's argument leads to the conclusion that the case should reach the jury, and the jury's verdict should be upheld, no matter which way it comes out.

Other commentators have rationalized granting a directed verdict against the plaintiff on the ground that any other result would impose too large a burden on the defendant. If a court held the Blue Bus Company liable in this case, courts would have to hold the company liable in all similar cases, even though it was responsible for only 80% of them. Some decision theorists consider this result unfair to the defendant and to all similarly situated plaintiffswould dislocate the market: it would disproportionately burden defendants like the Blue Bus Company and subsidize their smaller competitors. Because these competitors would then have little incentive to drive carefully, accident rates would increase. Simple application of a more-probable-than-not rule would not maximize utility. Posner would thus apply a special rule of proof in cases like the blue bus case, a requirement that the plaintiff offer some evidence of liability in addition to the statistical information. In effect, Posner's call for additional evidence reflects a need for a judicial mechanism that will induce deference to the jury's decision and thus promote an acceptable verdict.

Proportionate Damages.--One obvious alternative to a directed verdict for the defendant in the blue bus case would be to make the Blue Bus Company pay 80% of the plaintiff's damages. This solution responds to both the economic and fairness arguments advanced by decision theorists. It requires the company to pay in total (in this and all similar cases) for no more than the damage it probably caused over the long run. Forcing the Blue Bus Company to pay 80% of the damages in all such cases might still cause economic dislocation if the company's competitors had to pay nothing. This dislocation could be avoided, however, by requiring competitors to pay their proportionate shares as well. If there were a 20% probability that a defendant caused the plaintiff's damages, then the defendant would pay 20%. The transaction costs of litigating claims might suggest some minimal percentage (or dollar) threshold for liability, but it would surely not be as high as 50%. Requiring the Blue Bus Company's competitors to pay their fair share would give the plaintiff full recovery and properly balance the relative economic impact of the damage awards on the bus industry.

This proportionate-award approach could be applied to all cases in which the jury is uncertain of the facts on which a defendant's liability is predicated, including cases not based on statistical evidence. If the jury, after hearing a mass of conflicting evidence in a negligence case, is 40% certain that the defendant acted negligently, then the proportionate award approach would require the defendant to pay an award of 40% of the total actual damages, instead of paying nothing.

The proportionate-award approach addresses the concerns of the decision theorists so well that a question arises as to why our legal system is so firmly committed to the all-or-nothing rule. The answer is that a proportionate award projects a substantive legal rule that differs from the rule projected by an award of full damages. The former might project a behavioral message that differs from the message the court would convey by the standard application of the rule. Courts have resisted the proportionate-award approach because in most cases they have not desired to project the new legal rule and the new behavioral message that would accompany such an award.

The blue bus case illustrates this proposition. A court faced with such a case might choose to apportion damages according to the probability that the bus company injured the plaintiff. But a proportionate award against the company would not exemplify the basic negligence rule and its behavioral norm. The award would instead project a very different and seemingly perverse legal rule: courts will hold the defendant liable, notwithstanding the possibility that he committed no wrong, if the nature of his activity places him within a class of suspect persons. The behavioral norm embodied in this rule is not one of care and safety. In response to the rule, the Blue Bus Company might attempt to minimize exposure to liability by running fewer buses, rather than by trying to drive more carefully; the verdict sends a message about the volume of business, rather than one about safety standards. Indeed, proportionate awards of this kind make safety precautions more difficult to justify in economic terms. Thus, judicial hesitation to award proportionate damages in cases like the blue bus case may well arise, in part, from a reluctance to project the legal rule and behavioral message that would accompany such an award.

Courts have awarded proportionate damages, however, when such awards would convey desirable behavioral norms. In Summers v. Tice, for example, the plaintiff sued two hunters who had negligently fired in his direction. The court held that in the absence of any evidence as to which hunter had actually shot the plaintiff, the hunters were jointly liable for the plaintiff's injury. Similarly, in Sindell v. Abbott Laboratories, plaintiffs brought a class action against manufacturers of the drug DES. The court held that in the absence of evidence as to which manufacturers had made the product that caused the plaintiffs' injuries, each manufacturer was liable for the proportion of the judgment represented by its share of the DES market.

These cases are distinguishable from the blue bus hypothetical. In the hypothetical, only one bus company was negligent, and there is no basis for determining which one. A verdict that the defendant is liable would project the substantive rule that one need not act negligently to be liable. In Summers and Sindell, all of the defendants acted negligently, even though one cannot know which defendant actually caused the injury. The legal rule that these cases project is that when we do not know the identity of the person who caused an injury, we will award damages against all negligent parties in proportion to their probable responsibility for the specific harm. The rule and its behavioral message seem sensible enough. In Summers and Sindell, the courts imposed liability because the defendants acted wrongly, the courts thereby projected a message about the result of wrongful activity....

The outcomes of the cases turn on substantive issues that relate to the effects of generating new legal rules. In Summers and Sindell, the courts generated a new definition of what was relevant to a finding of liability and thus generated a new rule of substantive law. Whether the courts generated a good rule depends on one's assessment of the rule and of the process of judicial lawmaking. Casting these issues as problems of proof serves only to obscure them. The cases concern changing the elements of the substantive legal rule; the problem of proof is simply that of generating acceptable conclusions about those elements.

Although the traditional logic of proof rules can inhibit judicial efforts to find liability when the evidence is merely statistical, we should recognize that courts can nevertheless find liability and generate new substantive law by redefining the elements of the legal rule and the sanction so they reflect the statistical nature of the evidence. The current reluctance of the judicial system to impose liability in such situations cannot be overcome by changing the grammar of proof, because this grammar is essential to achieving the projection and affirmation of the law's behavioral norms. Instead, reform must come, and should be welcomed, by bringing about changes in the factual elements that must be proved. An instinctive reaction against probabilistic proof should not constrain efforts to restructure substantive law by changing the rules that govern what must be proved.

Limited Admissibility and Exclusion for Unfair Prejudice

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

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

Gory Photographs

Picture of a Fetus

FRE 404 - The Relevance and Proof of Character

Rule 404. Character Evidence Not Admissible To Prove Conduct; Exceptions; Other Crimes

(a) Character evidence generally

Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:

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

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

(3) Character of witness - Evidence of the character of a witness, as provided in rules 607, 608, and 609.

(b) Other crimes, wrongs, or acts

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.

People v. Zackowitz

254 N.y. 192, 172 N.e. 466 (1930)

CARDOZO, C.J. On November 10, 1929, shortly after midnight, the defendant in Kings county shot Frank Coppola and killed him without justification or excuse. A crime is admitted. What is doubtful is the degree only.

Four young men, of whom Coppola was one, were at work repairing an automobile in a Brooklyn street. A woman, the defendant's wife, walked by on the opposite side. One of the men spoke to her insultingly, or so at least she understood him. The defendant, who had dropped behind to buy a newspaper, came up to find his wife in tears. He was told she had been insulted, though she did not then repeat the words. Enraged, he stepped across the street and upbraided the offenders with words of coarse profanity. He informed them, so the survivors testify, that "if they did not get out of there in five minutes, he would come back and bump them all off." Rejoining his wife, he walked with her to their apartment house located close at hand. He was heated with liquor which he had been drinking at a dance. Within the apartment he induced her to tell him what the insulting words had been. A youth had asked her to lie with him, and had offered her $2. With rage aroused again, the defendant went back to the scene of the insult and found the four young men still working at the car. In a statement to the police, he said that he had armed himself at the apartment with a .25-caliber automatic pistol. In his testimony at the trial he said that this pistol had been in his pocket all the evening. Words and blows followed, and then a shot. The defendant kicked Coppola in the stomach. There is evidence that Coppola went for him with a wrench. The pistol came from the pocket, and from the pistol a single shot, which did its deadly work. The defendant walked away and at the corner met his wife who had followed him from the home. The two took a taxicab to Manhattan, where they spent the rest of the night at the dwelling of a friend. On the way the defendant threw his pistol into the river. He was arrested on January 7, 1930, about two months following the crime.

At the trial the vital question was the defendant's state of mind at the moment of the homicide. Did he shoot with a deliberate and premeditated design to kill? Was he so inflamed by drink or by anger or by both combined that, though he knew the nature of his act, he was the prey to sudden impulse, the fury of the fleeting moment? People v. Caruso, 246 N.Y. 437, 446, 159 N.E. 390. If he went forth from his apartment with a preconceived design to kill, how is it that he failed to shoot at once? How to reconcile such a design with the drawing of the pistol later in the heat and rage of an affray? These and like questions the jurors were to ask themselves and answer before measuring the defendant's guilt. Answers consistent with guilt in its highest grade can reasonably be made. Even so, the line between impulse and deliberation is too narrow and elusive to make the answers wholly clear. The sphygmograph records with graphic certainty the fluctuations of the pulse. There is no instrument yet invented that records with equal certainty the fluctuations of the mind. At least, if such an instrument exists, it was not working at midnight in the Brooklyn street when Coppola and the defendant came together in a chance affray. With only the rough and ready tests supplied by their experience of life, the jurors were to look into the workings of another's mind, and discover its capacities and disabilities, its urges and inhibitions, in moments of intense excitement. Delicate enough and subtle is the inquiry, even in the most favorable conditions, with every warping influence excluded. There must be no blurring of the issues by evidence illegally admitted and carrying with it in its admission an appeal to prejudice and passion.

Evidence charged with that appeal was, we think, admitted here. Not only was it admitted, and this under objection and exception, but the changes were rung upon it by prosecutor and judge. Almost at the opening of the trial the people began the endeavor to load the defendant down with the burden of an evil character. He was to be put before the jury as a man of murderous disposition. To that end they were allowed to prove that at the time of the encounter and at that of his arrest he had in his apartment, kept there in a radio box, three pistols and a tear-gas gun. There was no claim that he had brought these weapons out at the time of the affray, no claim that with any of them he had discharged the fatal shot. He could not have done so, for they were all of different caliber. The end to be served by laying the weapons before the jury was something very different. The end was to bring persuasion that here was a man of vicious and dangerous propensities, who because of those propensities was more likely to kill with deliberate and premeditated design than a man of irreproachable life and amiable manners. Indeed, this is the very ground on which the introduction of the evidence is now explained and defended. The district attorney tells us in his brief that the possession of the weapons characterized the defendant as "a desperate type of criminal," a "person criminally inclined." The dissenting opinion, if it puts the argument less bluntly, leaves the substance of the thought unchanged. "Defendant was presented to the jury as a man having dangerous weapons in his possession, making a selection therefrom and going forth to put into execution his threats to kill." The weapons were not brought by the defendant to the scene of the encounter. They were left in his apartment where they were incapable of harm. In such circumstances, ownership of the weapons, if it has any relevance at all, has relevance only as indicating a general disposition to make use of them thereafter, and a general disposition to make use of them threafter is without relevance except as indicating a "desperate type of criminal," a criminal affected with a murderous propensity.

We are asked to extenuate the error by calling it an incident; what was proved may have an air of innocence if it is styled the history of the crime. The virus of the ruling is not so easily extracted. Here was no passing reference to something casually brought out in the narrative of the killing, as if an admission had been proved against the defendant that he had picked one weapon out of several. Here in the forefront of the trial, immediately following the statement of the medical examiner, testimony was admitted that weapons, not the instruments of the killing, had been discovered by the police in the apartment of the killer; and the weapons with great display were laid before the jury, marked as exhibits, and thereafter made the subject of animated argument. Room for doubt there is none that in the thought of the jury, as in that of the district attorney, the tendency of the whole performance was to characterize the defendant as a man murderously inclined. The purpose was not disguised. From the opening to the verdict, it was flaunted and avowed.

If a murderous propensity may be proved against a defendant as one of the tokens of his guilt, a rule of criminal evidence, long believed to be of fundamental importance for the protection of the innocent, must be first declared away. Fundamental hitherto has been the rule that character is never an issue in a criminal prosecution unless the defendant chooses to make it one. Wigmore, Evidence, vol. 1, §§55, 192. In a very real sense a defendant starts his life afresh when he stands before a jury, a prisoner at the bar. There has been a homicide in a public place. The killer admits the killing, but urges self-defense and sudden impulse. Inflexibly the law has set its face against the endeavor to fasten guilt upon him by proof of character or experience predisposing to an act of crime. The endeavor has been often made, but always it has failed. At times, when the issue has been self-defense, testimony has been admitted as to the murderous propensity of the deceased, the victim of the homicide, but never of such a propensity on the part of the killer. The principle back of the exclusion is one, not of logic, but of policy. There may be cogency in the argument that a quarrelsome defendant is more likely to start a quarrel than one of milder type, a man of dangerous mode of life more likely than a shy recluse. The law is not blind to this, but equally it is not blind to the peril to the innocent if character is accepted as probative of crime. "The natural and inevitable tendency of the tribunal--whether judge or jury--is to give excessive weight to the vicious record of crime thus exhibited, and either to allow it to bear too strongly on the present charge, or to take the proof of it as justifying a condemnation irrespective of guilt of the present charge." Wigmore, Evidence, vol. 1, §194, and cases cited.

A different question would be here if the pistols had been bought in expectation of this particular encounter. They would then have been admissible as evidence of preparation and design. A different question would be here if they were so connected with the crime as to identify the perpetrator, if he had dropped them, for example, at the scene of the affray. They would then have been admissible as tending to implicate the possessor (if identity was disputed), no matter what the opprobrium attached to his possession. Different, also, would be the question if the defendant had been shown to have gone forth from the apartment with all the weapons on his person. To be armed from head to foot at the very moment of an encounter may be a circumstance worthy to be considered, like acts of preparation generally, as a proof of preconceived design. There can be no such implication from the ownership of weapons which one leaves behind at home.

The endeavor was to generate an atmosphere of professional criminality. It was an endeavor the more unfair in that, apart from the suspicion attaching to the possession of these weapons, there is nothing to mark the defendant as a man of evil life. He was not in crime as a business. He did not shoot as a bandit shoots in the hope of wrongful gain. He was engaged in a decent calling, an optician regularly employed, without criminal record, or criminal associates. If his own testimony be true, he had gathered these weapons together as curios, a collection that interested and amused him. Perhaps his explanation of their ownership is false. There is nothing stronger than mere suspicion to guide us to an answer. Whether the explanation be false or true, he should not have been driven by the people to the necessity of offering it. Brought to answer a specific charge, and to defend himself against it, he was placed in a position where he had to defend himself against another, more general and sweeping. He was made to answer to the charge, pervasive and poisonous even if insidious and covert, that he was a man of murderous heart, of criminal disposition....

The judgment of conviction should be reversed, and a new trial ordered.

POUND, J. (dissenting)....

Nearly two months after the killing of Coppola, the police entered defendant's home in connection with his arrest and found there concealed in a box in the radio three revolvers and a tear-gas bomb, together with a supply of cartridges suitable for use both in the revolvers and the bomb. Defendant had in his confession, which was received without objection, admitted that he had these weapons in his possession at the time of the killing. The .25-caliber automatic was not among them. Defendant says that he threw it away after he shot Coppola. The people, as a part of their principal case, introduced these articles in evidence over defendant's objection and exception. This is the only ruling by which the question of error in law is presented on this appeal. No objection was made to the summation by the district attorney nor to any specific instructions by the court. The possession of these dangerous weapons was a separate crime. Penal Law, §1897. The broad question is whether it had any connection with the crime charged. The substantial rights of the defendant must be protected. Where the penalty is death, we may grant a new trial if justice requires it, even though no exception was taken in the court below. Code Cr. Proc. §528.

The people may not prove against a defendant crimes not alleged in the indictment committed on other occasions than the crime charged as aiding the proofs that he is guilty of the crime charged unless such proof tends to establish (1) motive; (2) intent; (3) absence of mistake or accident; (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of the one tends to establish the other; (5) the identity of the person charged with the commission of the crime on trial. These exceptions are stated generally and not with categorical precision and may not be all-inclusive. None of them apply here, nor were the weapons offered under an exception to the general rule. They were offered as a part of the transaction itself. The accused was tried only for the crime charged. The real question is whether the matter relied on has such a connection with the crime charged as to be admissible on any ground. If so, the fact that it constitutes another distinct crime does not render it inadmissible. The rule laid down in the Molineux case [People v. Molineux, 168 N.Y. 264 (1901)] has never been applied to prevent the people from proving all the elements of the offense charged, although separate crimes are included in such proof. Thus in this case no question is made as to the separate crime of illegal possession of the weapon with which the killing was done. It was "a part of the history of the case" having a distinct relation to and bearing upon the facts connected with the killing.

As the district attorney argues in his brief, if defendant had been arrested at the time of the killing, and these weapons had been found on his person, the people would not have been barred from proving the fact, and the further fact that they were near by in his apartment should not preclude the proof as bearing on the entire deed of which the act charged forms a part. Defendant was presented to the jury as a man having dangerous weapons in his possession, making a selection therefrom, and going forth to put into execution his threats to kill; not as a man of a dangerous disposition in general, but as one who, having an opportunity to select a weapon to carry out his threats, proceeded to do so....

The judgment of conviction should be affirmed.

A Return to the Scene of the Crime

Charge: theft of valuable documents, coins, and case from the heavy metal safe in Attorney A's office on June 1. Modus operandi: opening the combination lock and absconding with the contents.

At D's trial the state offers to prove that on May 1, D broke into Attorney A's office, opened the safe, and stole some bonds from the safe. D objects on the basis of the propensity rule.

What ruling and why? If D's objection is overruled, what type of limiting charge should D request?

Res Gestae

(1) Charge: violation of federal firearms statute by unlawfully receiving a firearm transported interstate after D had previously been convicted of a crime punishable by more than one year in prison. At trial, W, a druggist, testified for the prosecution that D had entered his pharmacy with a prescription that W recognized as forged. When W asked D to remain in the store so the police could check the prescription, D bolted, and W gave chase. During the chase D dropped the drugs and gun over the side of a wall. D objected to the evidence of the alleged forged prescription.

(2) Charge: illegal sale of narcotics. At trial a state narcotics agent is offered by the prosecution to testify that he and another agent had visited D's house together and that each had purchased a can containing some substance, which the agents believed was marijuana. D objects to the testimony concerning the sale to the other agent.

"Money or Death"

Charge: robbery of the First National Bank in City A on June 1. Modus operandi: handing the teller a note with a death threat on it that says, "Money or death: The choice is yours," accompanied by pictures of a dead body under the word "death" and a live, smiling person under the word "money." At trial the state offers to prove through the teller of the First Federal Bank in City B that on February 1 he was robbed in the same manner by D--that is, that he was handed a deposit slip with the very same death threat written on it. The state also offers several other bank tellers from different banks to testify similarly.

D objects to the tellers' testimony. What ruling and why?

Rex v. Smith

11 Cr. App. R. 229, 84 L.j.k.b. 2153 (1915) Appeal on points of law against a conviction for murder before Scrutton, J. at the Central Criminal Court. The appellant was indicted for the murder of Bessie Munday, who was discovered dead in her bath at Herne Bay on the 12th July 1912. The appellant had gone through a ceremony of marriage with the deceased, his own wife being then alive. At the trial of the appellant on the charge of murder evidence was given that subsequent to the death of Bessie Munday two other women named Alice Burnham and Margaret Elizabeth Lofty had both died in their baths under nearly the same circumstances as those which occurred in the case of Bessie Munday. In both of these subsequent cases the appellant had gone through a ceremony of marriage. The appellant was convicted at the Central Criminal Court of the murder of Bessie Munday and sentenced to death. The contention on behalf of the appellant is that the evidence was not admissible on examination in chief. It was admitted as evidence of a system of murder.

LORD READING, C.J. The principles of law governing the admission of evidence of this nature have been often under the consideration of this court and depend chiefly on the statement of the law in the case of Makin v. Attorney-General for New South Wales (sup.), where Lord Herschell says:

"It is undoubtedly not competent for the prosecution to adduce evidence tending to show that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried. On the other hand, the mere fact that the evidence adduced tends to show the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in his indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused."

In the present case the prosecution tendered evidence relating to the other two women, and it was admitted by the judge as tending to show that the act charged was committed with design.

The second point taken is that even assuming that evidence of the other two women was admissible, the prosecution should not have been allowed to give evidence beyond the fact that the two women were found dead in their baths. Obviously for the reasons given in dealing with the first point, it would not have been of any assistance to cut short the evidence in this way. We think that the prosecution were entitled to give, and the judge rightly admitted, evidence of the circumstances relating to the deaths of the two women.

Appeal dismissed.

Huddleston v. United States

485 U.S. 681 (1988)

Chief Justice REHNQUIST delivered the opinion of the Court.

Petitioner, Guy Rufus Huddleston, was charged with one count of selling stolen goods in interstate commerce, 18 U.S.C. §2315, and one count of possessing stolen property in interstate commerce, 18 U.S.C. §659. The two counts related to two portions of a shipment of stolen Memorex video cassette tapes that petitioner was alleged to have possessed and sold, knowing that they were stolen.

The evidence at trial showed that a trailer containing over 32,000 blank Memorex video cassette tapes with a manufacturing cost of $4.53 per tape was stolen from the Overnight Express yard in South Holland, Illinois, sometime between April 11 and 15, 1985. On April 17, 1985, petitioner contacted Karen Curry, the manager of the Magic Rent-to-Own in Ypsilanti, Michigan, seeking her assistance in selling a large number of blank Memorex video cassette tapes. After assuring Curry that the tapes were not stolen, he told her he wished to sell them in lots of at least 500 at $2.75 to $3.00 per tape. Curry subsequently arranged for the sale of a total of 5,000 tapes, which petitioner delivered to the various purchasers--who apparently believed the sales were legitimate.

There was no dispute that the tapes which petitioner sold were stolen; the only material issue at trial was whether petitioner knew they were stolen. The District Court allowed the Government to introduce evidence of "similar acts" under Rule 404(b), concluding that such evidence had "clear relevance as to [petitioner's knowledge]." The first piece of similar act evidence offered by the Government was the testimony of Paul Toney, a record store owner. He testified that in February 1985, petitioner offered to sell new 12" black and white televisions for $28 a piece. According to Toney, petitioner indicated that he could obtain several thousand of these televisions. Petitioner and Toney eventually traveled to the Magic Rent-to-Own, where Toney purchased 20 of the televisions. Several days later, Toney purchased 18 more televisions.

The second piece of similar act evidence was the testimony of Robert Nelson, an undercover FBI agent posing as a buyer for an appliance store. Nelson testified that in May 1985, petitioner offered to sell him a large quantity of Amana appliances--28 refrigerators, 2 ranges, and 40 icemakers. Nelson agreed to pay $8,000 for the appliances. Petitioner was arrested shortly after he arrived at the parking lot where he and Nelson had agreed to transfer the appliances. A truck containing the appliances was stopped a short distance from the parking lot, and Leroy Wesby, who was driving the truck, was also arrested. It was determined that the appliances had a value of approximately $20,000 and were part of a shipment that had been stolen.

Petitioner testified that the Memorex tapes, the televisions, and the appliances had all been provided by Leroy Wesby, who had represented that all of the merchandise was obtained legitimately. Petitioner stated that he had sold 6,500 Memorex tapes for Wesby on a commission basis. Petitioner maintained that all of the sales for Wesby had been on a commission basis and that he had no knowledge that any of the goods were stolen.

In closing, the prosecution explained that petitioner was not on trial for his dealings with the appliances or the televisions. The District Court instructed the jury that the similar acts evidence was to be used only to establish petitioner's knowledge, and not to prove his character. The jury convicted petitioner on the possession count only.

A divided panel of the United States Court of Appeals for the Sixth Circuit initially reversed the conviction, concluding that because the Government had failed to prove by clear and convincing evidence that the televisions were stolen, the District Court erred in admitting the testimony concerning the televisions. 802 F.2d 874 (1986).(1)1 The panel subsequently granted rehearing to address the decision in United States v. Ebens, 800 F.2d 1422 (C.A.6 1986), in which a different panel had held: "Courts may admit evidence of prior bad acts if the proof shows by a preponderance of the evidence that the defendant did in fact commit the act." On rehearing, the court affirmed the conviction. "Applying the preponderance of the evidence standard adopted in Ebens, we cannot say that the district court abused its discretion in admitting evidence of the similar acts in question here." 811 F.2d 974, 975 (1987) (per curiam). The court noted that the evidence concerning the televisions was admitted for a proper purpose and that the probative value of this evidence was not outweighed by its potential prejudicial effect.

We granted certiorari to resolve a conflict among the Courts of Appeals as to whether the trial court must make a preliminary finding before "similar act" and other Rule 404(b) evidence is submitted to the jury. We conclude that such evidence should be admitted if there is sufficient evidence to support a finding by the jury that the defendant committed the similar act.

Federal Rule of Evidence 404(b)--which applies in both civil and criminal cases--generally prohibits the introduction of evidence of extrinsic acts that might adversely reflect on the actor's character, unless that evidence bears upon a relevant issue in the case such as motive, opportunity, or knowledge. Extrinsic acts evidence may be critical to the establishment of the truth as to a disputed issue, especially when that issue involves the actor's state of mind and the only means of ascertaining that mental state is by drawing inferences from conduct. The actor in the instant case was a criminal defendant, and the act in question was "similar" to the one with which he was charged. Our use of these terms is not meant to suggest that our analysis is limited to such circumstances.

Before this Court, petitioner argues that the District Court erred in admitting Toney's testimony as to petitioner's sale of the televisions.

The threshold inquiry a court must make before admitting similar acts evidence under Rule 404(b) is whether that evidence is probative of a material issue other than character. The Government's theory of relevance was that the televisions were stolen, and proof that petitioner had engaged in a series of sales of stolen merchandise from the same suspicious source would be strong evidence that he was aware that each of these items, including the Memorex tapes, was stolen. As such, the sale of the televisions was a "similar act" only if the televisions were stolen. Petitioner acknowledges that this evidence was admitted for the proper purpose of showing his knowledge that the Memorex tapes were stolen. He asserts, however, that the evidence should not have been admitted because the Government failed to prove to the District Court that the televisions were in fact stolen.

Petitioner argues from the premise that evidence of similar acts a grave potential for causing improper prejudice. For instance, the jury may choose to punish the defendant for the similar rather than the charged act, or the jury may infer that the defendant is an evil person inclined to violate the law. Because of this danger, petitioner maintains, the jury ought not to be exposed to similar act evidence until the trial court has heard the evidence and made a determination under Federal Rule of Evidence 104(a) that the defendant committed the similar act. Rule 104(a) provides that "[p]reliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b)." According to petitioner, the trial court must make this preliminary finding by at least a preponderance of the evidence.

We reject petitioner's position, for it is inconsistent with the structure of the Rules of Evidence and with the plain language of Rule 404(b). Article IV of the Rules of Evidence deals with the relevancy of evidence. Rules 401 and 402 establish the broad principle that relevant evidence--evidence that makes the existence of any fact at issue more or less probable--is admissible unless the Rules provide otherwise. Rule 403 allows the trial judge to exclude relevant evidence if, among other things, "its probative value is substantially outweighed by the danger of unfair prejudice." Rules 404 through 412 address specific types of evidence that have generated problems. Generally, these latter Rules do not flatly prohibit the introduction of such evidence but instead limit the purpose for which it may be introduced. Rule 404(b), for example, protects against the introduction of extrinsic act evidence when that evidence is offered solely to prove character. The text contains no intimation, however, that any preliminary showing is necessary before such evidence may be introduced for a proper purpose. If offered for such a proper purpose, the evidence is subject only to general strictures limiting admissibility such as Rules 402 and 403.

FRE 405 - Methods of Proving Character

(a) Reputation or opinion.

In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.

(b) Specific instances of conduct.

In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that person's conduct.

Proof of the Defendant's Good Character

Charge: robbery.

(1) At D's trial the state calls W1, a teller at the bank, who identifies D as the robber. The state next calls W2 and proposes that W2 testify that he is familiar with D's reputation in the community and that D's reputation is one of a thieving, embezzling, bunko artist. On D's timely objection, what ruling and why? Does the objection call into play the propensity rule?

(2) Assume that D's objection to W2's testimony is sustained and the prosecution rests. D calls witness W3 to testify to D's reputation in the community as an honest, quiet person. On the district attorney's timely objection, what ruling and why? Does the objection call into play the propensity rule? Should it?

(3) Suppose the district attorney's objection is overruled. W3 testifies as proposed. On cross-examination may the district attorney ask W3--over D's objection--whether W3 has heard that last year D swindled the widow Brown?

(4) After W3 is through testifying and D has presented the rest of her case, should the state be allowed to reopen its case to offer proof of D's prior arrest for armed robbery? Why?

Proof of the Defendant's Violent Character

Charge: murder by strangulation, bludgeoning, stabbing, and burning.

(1) As part of the state's case-in-chief the district attorney offers the testimony of witness A to testify that for the past 20 years she has lived in the same town as D and that she knows D's reputation in the community to be that of a vicious bully and troublemaker, prone to violence and breaches of the peace. D objects to A's testimony. What ruling and why?

(2) Suppose that D's objection to A's testimony is sustained. The district attorney next offers witness B to testify that on May 1, a year ago, D committed an armed robbery of B. D objects to B's testimony. What ruling and why?

(3) Suppose that D's objection to B's testimony is sustained. The district attorney introduces a certified record of D's conviction for armed robbery of B one year ago. Should this evidence be admitted over D's objection?

(4) Suppose that D's objection to proof of his prior conviction, on the grounds that the evidence is irrelevant, incompetent, immaterial, and prejudicial, is overruled and the evidence is admitted. D is convicted. On appeal the judgment is affirmed by the state supreme court, which holds that such evidence is admissible to show D's propensity as a habitual criminal, thus affecting the degree of punishment. D's petition for a writ of certiorari to the U.S. Supreme Court is granted. Has D been deprived of due process of law?

The Mayor

Action against the D Tribune for libel, with federal jurisdiction based on diversity of citizenship. P alleges that D published an article referring to him as "the most corrupt mayor we have had in a long time.

At trial, D offers evidence that P has been twice convicted of taking bribes and that P's net worth has increased to $20 Million during the last 5 years while P has served as the full-time mayor at a salary of $50,000 per year. P objects. What ruling and why?

Tit for Tat

Rip Rapper v. Shawn Pend for damage allegedly occurring as a result of Pend's assault and battery on Rapper at the Beverly Hills Disco on July 14. Defendant's answer alleges that plaintiff was the aggressor and pleads self-defense.

(1) As part of his case-in-chief Rapper offers evidence of his reputation for peacefulness. Admissible?

(2) As part of his case-in-chief Rapper offers evidence of Pend's reputation as a bully, fighter, and all-around troublemaker. Admissible?

(3) Suppose that the evidence offered in (1) and (2) is excluded and that as part of his case-in-chief defendant offers evidence of his good reputation. Admissible? Suppose defendant also offers evidence of plaintiff's bad reputation. Admissible?

(4) Suppose the court excludes all the evidence offered above except defendant's good reputation evidence. On rebuttal may plaintiff offer evidence of defendant's bad reputation or of his own good reputation?

The Acrobatic Driver

On June 1 at the intersection of Walden and Thoreau Streets, A, a pedestrian, was hit by B's car and killed. B entered Walden Street from the south. There is a stop sign controlling such traffic at the corner. Shortly after the accident B died of injuries unrelated to the accident.

P, the executor of A's estate, sues D, the executor of B's estate, for damages due to B's alleged negligence. The issue is whether B stopped at the stop sign. At trial, P proposes to have W1 testify that he once saw B drive the wrong way down a one-way street, that he once saw B blow his horn in a hospital quiet zone, and that he once saw B steer with his feet in heavy traffic. P also proposes to have W2 testify that he is familiar with B's reputation for driving and that his reputation is that of a reckless daredevil.

Is the proffered testimony of W1 or W2 relevant? Is it admissible in a Federal Rules jurisdiction? Should such evidence be admitted? If you were P's attorney, how would you try to get this evidence in?

FRE 406 - Character and Habit

Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.

Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.

The Acrobatic Driver: A Reprise

In the case of the acrobatic but reckless driver, suppose P offers W3 to testify that he worked at a gas station on the corner of Walden and Thoreau Streets, that he has serviced B's car and knows it is a standard-shift automobile, and that in all the times he saw B drive through the Walden/Thoreau intersection, he never saw B come to a full stop at the stop sign. Rather, B always would spurt through the intersection without downshifting to first gear.

Is W3's testimony relevant? Is it admissible? What is the difference between W3's proposed testimony and W1's and W2's proposed testimony? Would your decision as to whether any of the witnesses' testimony should be admitted be affected by the presence or absence of eyewitnesses to the collision between B's car and A? Should it be?

FRE 407 - Subsequent Remedial Measures

When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

Locking the Barn Door

(1) Pedestrian P1 v. D Construction Company for personal injuries sustained when P1 was struck by D's crane while P1 was walking on the sidewalk past D's construction site. At trial, P1 offers evidence that the day after the accident D's superintendent posted a safety rule reading as follows:

EFFECTIVE IMMEDIATELY

When operating a crane or any other equipment on this job within 10 feet of a sidewalk or street, a lookout must be posted to watch for pedestrians and other traffic.

By Order of the Superintendent

Is this evidence admissible?

The D-Craft 184 Crash

P v. D Aircraft Company for damages for the death of P's husband, H, who perished when the plane he was flying--a twin-engine "D-Craft 184"--crashed for no apparent reason on a clear day. The theory of P's case, which she plans to present through expert testimony, is that the fuel tanks on the D-Craft 184, located in the wings, feed fuel to the engines through a "gravitational flow" system that is susceptible to centrifugal force when the fuel tanks are only partially full and the plane is in a steep curve or dive. P's expert will testify that the centrifugal force causes the delivery of fuel to the engine from the tank on the wing on the inside of the curve to be momentarily interrupted. When this happens the inside engine stalls, causing the other engine to jerk the plane around in the opposite direction. The force of this resulting pull reverses the forces on the fuel tanks, causing the second engine to stall. P's expert will testify that when this condition occurs, even an experienced test pilot would be lucky to bring the plane back under control and prevent a crash. P has other evidence that tends to suggest that the crash may have happened in this way.

P's attorney learns through pretrial discovery that D Aircraft Company plans to call an expert on light plane design to testify that the "gravitational flow" fuel system is safe for twin-engine planes of the "184" series. P's attorney also learns that shortly after the accident, D Aircraft Company replaced the gravitational flow fuel system in its 184s with an electronic-pump system.

Is any of this admissible? How should the attorneys for P and D Aircraft Company structure their examination of the witnesses to put in as much favorable evidence as they can and keep out as much unfavorable evidence as possible?

FRE 408- Compromise and Offers to Compromise

(a) Prohibited uses. Evidence of the following is not admissible on behalf of any party, when offered to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction: (1) furnishing or offering or promising to furnish--or accepting or offering or promising to accept--a valuable consideration in compromising or attempting to compromise the claim; and (2) conduct or statements made in compromise negotiations regarding the claim, except when offered in a criminal case and the negotiations related to a claim by a public office or agency in the exercise of regulatory, investigative, or enforcement authority.

(b) Permitted uses. This rule does not require exclusion if the evidence is offered for purposes not prohibited by subdivision (a). Examples of permissible purposes include proving a witness's bias or prejudice; negating a contention of undue delay; and proving an effort to obstruct a criminal investigation or prosecution.

Mr. Nice Guy

(1) Cars driven by D and P collide at an intersection controlled by a traffic signal. Each alights from his car, and the following dialogue ensues:

D: Why didn't you stop for the light? See what you've done?

P: What do you mean, "you stop for the light"? I had the green. Oh, my car. And my neck is hurt. Ohh ...

D: Well, maybe it turned on me in the intersection. Let's not make a big deal of this. Maybe we can handle this ourselves.

P: Ohh, my neck ... and my back ... ohhh ...

D: Now wait a minute, let's talk this over. I'm sorry I ran the light. Here, how's about if I give you this, ah, $100, for the fender, and, ah, here's another $100 for your neck--go get a massage or something. Let's forget about it--how about it?

P sues D for $750,000 for personal injuries and property damage. Is any of the above admissible?

(2) During pretrial discovery, P's lawyer takes D's deposition. After four hours of testimony, D, who is represented by counsel, says:

D: Now, look, you guys--I've had enough of this. Let's go off the record. This isn't going anywhere. Even if the case goes to trial it will take five years to get there, and who knows if P will get a cent? Even if he wins, he isn't going to get more than my liability coverage provides. How much were P's medical bills? $2,300? Here's a check for that amount plus $1,700 for his time. If he signs this release, it's his.

P rejects these terms. At trial how much of this is admissible?

FRE 412 - Character Evidence in Cases of Sexual Assault

(a) Evidence generally inadmissible.

The following evidence is not admissible in any civil or criminal proceeding involving alleged sexual misconduct except as provided in subdivisions (b) and (c):

(1) Evidence offered to prove that any alleged victim engaged in other sexual behavior.

(2) Evidence offered to prove any alleged victim's sexual predisposition.

(b) Exceptions.

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

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

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

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

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

(c) Procedure to determine admissibility.

(1) A party intending to offer evidence under subdivision (b) must --

(A) file a written motion at least 14 days before trial specifically describing the evidence and stating the purpose for which it is offered unless the court, for good cause requires a different time for filing or permits filing during trial; and

(B) serve the motion on all parties and notify the alleged victim or, when appropriate, the alleged victim's guardian or representative.

(2) Before admitting evidence under this rule the court must conduct a hearing in camera and afford the victim and parties a right to attend and be heard. The motion, related papers, and the record of the hearing must be sealed and remain under seal unless the court orders otherwise.

Prostitution, Rape, or Both?

D and V met at a bar, then went to a hotel room and engaged in sexual intercourse. V claims that she was raped. D claims that V is a prostitute and that he made a deal with her for $50, but that when it came time to pay he had only $20 with him. V became enraged and accused him of rape.

How should the court rule on the following offers of evidence?

a. D's testimony about conversations with V concerning sex for money earlier in the evening. b. Testimony by others that they had engaged in prior transactions of prostitution with V. c. Evidence that V had been prosecuted and twice convicted of prostitution before the encounter with D. d. Evidence that V had a reputation as a prostitute in the community in which both D and V lived.

Explanation for Pregnancy

At D's trial for sexual assault of V, V testifies that D raped her and that she became pregnant as a result. D seeks to prove V's prior consensual sexual activity with X on the theory that V became pregnant by X and then falsely accused D of rape to provide an alternate explanation for the pregnancy. Would the following proffered evidence be admissible?:

a. cross examination questions asking V whether she had engaged in sexual intercourse with X? b. testimony by X that he had engaged in sexual intercourse with V? c. DNA evidence that V's unborn child was not the child of D?

Commonwealth v. Gouveia

371 Mass. 566, 358 N.E.2d 1001 (1976)

BRAUCHER, J. The defendant appeals from convictions of rape and an unnatural act, and argues two assignments of error: (1) exclusion of evidence of prior sexual intercourse by the victim, and (2) denial of his motion for a mistrial after the prosecutor in his closing argument asserted that there was no evidence to refute the victim's testimony as to what happened when she and the defendant were alone together. We hold that there was no error in excluding evidence of prior sexual acts between the victim and a person other than the defendant.... We therefore affirm the convictions.

The case for the Commonwealth consisted almost entirely of the testimony of the victim, which we summarize. She was nineteen years old and lived and worked in Billerica. On the evening of Saturday, August 25, 1973, she drove her automobile to a bar in Lowell and had two or three drinks with friends and with a young man whom she met there and who invited her to a family birthday party. She drove him to the party, a few minutes away, arriving about 11:30 to 12 p.m., and found approximately thirty people there. About a half hour later, she felt sick and she and her escort went out and got into the back seat of her car. He passed out, she vomited, and she discovered that her wallet and car keys were missing. She got out of the car and spoke to others who said they would look for the car keys.

At this point the defendant, whom she did not know, suggested that she could lie down in his van, parked nearby, and she did so. She was there for about two hours, during which time several men looked in, and one made sexual advances which she repulsed. Finally, the defendant got into the van and committed the crimes charged. After ten or fifteen minutes the defendant "gave up; she put her jeans back on; and she went back to her car, leaving her underwear in the van. She rolled up the windows and locked the doors of her car, and a woman came over and screamed at her. Others were standing around. Later the defendant came back, said the woman was going to beat her up, and offered to give her "a ride to get out of there. They got into the van, and he drove her to within a quarter of a mile of her home. He gave her the wrong name of the street where the party was, and he falsely said the van was not his. She noted the license number and wrote it down when she arrived home about 5:15 a.m.

About 7 or 7:30 a.m. she called a friend, and he drove her to Lowell to look for her car. The same morning, after searching without success, they went to the Lowell police department. She gave the police the license number of the van and learned the defendant's name. About a week later the police recovered her car, and her wallet was found in a mailbox.

The defendant stipulated that he was at the party with his van, and that he drove the victim home. The escort, six women, and the husband of one of them testified for the defendant. All the witnesses were related to the escort by blood or marriage and all but one testified that they had known the defendant for many years. He did not testify.

In September, 1975, the defendant was convicted of both rape and an unnatural act, and was sentenced to nine to twelve years for rape and to a lesser concurrent sentence for an unnatural act. An appeal to the Appellate Division of the Superior Court resulted in concurrent sentences of three to five years. The defendant appealed pursuant to G.L. c. 278, §§33A-33G, and we allowed the parties' joint application for direct appellate review, which focused on the admissibility of evidence of prior sexual acts by a rape victim.

1. Evidence of prior sexual acts. The victim testified on direct examination that she was outside in the back seat of her car with her escort about two hours before the crimes took place. On cross-examination she said that she was talking to him, and that he kissed her and "attempted to make a pass at her, "and that was it. She denied having sexual intercourse with him, but the judge sustained an objection to the question and instructed the jury to disregard it. She denied that she was undressed.

Defense witnesses testified that the victim and her escort were in the back seat of her car, and that he passed out and was carried into the house. They testified that both the victim and her escort were completely undressed, and two of them testified to obscene behavior on her part. Several also testified that she got out of the car wholly or partly undressed and walked down the street. The judge excluded questions whether she and her escort engaged in sexual intercourse.

The defendant accepts our general rule that in a rape case, although evidence of a general reputation for unchastity may be admitted, evidence of instances of prior intercourse of the victim with persons other than the defendant is inadmissible. Commonwealth v. Gardner, 350 Mass. 664, 668, 216 N.E.2d 558 (1966), and cases cited. But he argues that the rule should be limited to cases where it is "justified on the ground that collateral questions relating to those specific events would prolong the trial and divert the attention of the trier of fact from the issues. Commonwealth v. McKay, 363 Mass. 220, 227, 294 N.E.2d 213, 218 (1973). Here, he says, the prior act was close in time and nature to the crimes charged, and it was therefore admissible ... to prove her consent....

On the issue of consent, we stand by the principle that "the victim's consent to intercourse with one man does not imply her consent in the case of another. Commonwealth v. McKay, supra, 363 Mass. at 227, 294 N.E.2d at 218. At least in the circumstances here, a prior consent close in time and place might negate rather than create such an implication of subsequent consent. We need hardly add that the defendant had no right to appeal to the jury on the basis that by her conduct the victim had forfeited any claim to protection from rape.

The defendant further complains that proof of the victim's "obscene and public actions, short of intercourse, ... strongly and erroneously implied to the jury that no such intercourse did occur, and that subsequent consent to intercourse with the defendant therefore seemed "most improbable. It is at least equally likely that the jury disbelieved the defense testimony, or that they thought, as we do, that prior consent was irrelevant to subsequent consent. In any event, the evidence of "obscene and public actions was all introduced by the defendant, and he is in no position to complain.

The defendant argues that if our rule excludes the "demonstrably relevant evidence offered in this case, "merely to protect the dignity of the witness, it denies the defendant his right to a fair trial and violates the United States Constitution. We have said enough to indicate that no relevant evidence was excluded. We do not regard the protection of the dignity of witnesses as illegitimate. See Commonwealth v. Bailey, 348 N.E.2d 746 (1976). But that is not the purpose of the rule here considered....

False Accusation

Charge: rape. M.O.: victim put in fear of serious bodily harm but no violent assault other than the alleged rape. Defense: consent. You are defense counsel. In pretrial investigation you learn that in the past two years the victim has accused five other men of rape. In four cases she subsequently withdrew her accusations, and in the other case the accused was acquitted by the jury in one-half hour after a five-day trial. You have been informed by an expert psychologist that the victim is a pathological liar. How would you introduce evidence of the prior accusations at defendant's trial? As prosecutor, what would you argue to exclude the evidence? Should such evidence be admitted? As a judge how would you rule?

PRIVILEGE

In Re Farber (State v. Jascalevich)

78 N.j. 259, 394 A.2d 330 (1978)

MOUNTAIN, J. In these consolidated appeals The New York Times Company and Myron Farber, a reporter employed by the newspaper, challenge judgments entered against them in two related matters--one a proceeding in aid of a litigant (civil contempt), the other for criminal contempt of court. The proceedings were instituted in an ongoing murder trial now in its seventh month, as a result of the appellants' failure to comply with two subpoenas duces tecum, directing them to produce certain documents and materials compiled by one or both of these appellants in the course of Farber's investigative reporting of certain allegedly criminal activities. Farber's investigations and reporting are said to have contributed largely to the indictment and prosecution of Dr. Mario E. Jascalevich for murder. Appellants moved unsuccessfully before Judge William J. Arnold, the trial judge in State v. Jascalevich, to quash the two subpoenas; an order was entered directing that the subpoenaed material be produced for in camera inspection by the court....

Impelled by appellants' persistent refusal to produce the subpoenaed materials for in camera inspection, Judge Arnold issued an order returnable before Judge Theodore W. Trautwein, directing appellants to show cause why they should not be deemed in contempt of court....

Judge Trautwein determined that both appellants had wilfully contemned Judge Arnold's order directing that materials be produced for in camera inspection and found them guilty as charged. A fine of $100,000 was imposed on The New York Times and Farber was ordered to serve six months in the Bergen County jail and to pay a fine of $1,000. Additionally, in order to compel production of the materials subpoenaed on behalf of Jascalevich, a fine of $5,000 per day for every day that elapsed until compliance with Judge Arnold's order was imposed upon The Times; Farber was fined $1,000 and sentenced to confinement in the county jail until he complied with the order....

I. THE FIRST AMENDMENT

Appellants claim a privilege to refrain from revealing information sought by the subpoenas duces tecum essentially for the reason that were they to divulge this material, confidential sources of such information would be made public. Were this to occur, they argue, newsgathering and the dissemination of news would be seriously impaired, because much information would never be forthcoming to the news media unless the persons who were the sources of such information could be entirely certain that their identities would remain secret. The final result, appellants claim, would be a substantial lessening in the supply of available news on a variety of important and sensitive issues, all to the detriment of the public interest. They contend further that this privilege to remain silent with respect to confidential information and the sources of such information emanates from the "free speech" and "free press" clauses of the First Amendment.

In our view the Supreme Court of the United States has clearly rejected this claim and has squarely held that no such First Amendment right exists. In Branzburg v. Hayes, 408 U.S. 665 (1972), three news media representatives argued that, for the same reason here advanced, they should not be required to appear and testify before grand juries, and that this privilege to refrain from divulging information, asserted to have been received from confidential sources, derived from the First Amendment. Justice White, noting that there was no common law privilege, stated the issue and gave the Court's answer in the first paragraph of his opinion:

"The issue in these cases is whether requiring newsmen to appear and testify before state or federal grand juries abridges the freedom of speech and press guaranteed by the First Amendment. We hold that it does not." Branzburg v. Hayes, supra, 408 U.S. at 667 (1972).

In that case one reporter, from Frankfort, Kentucky, had witnessed individuals making hashish from marijuana and had made a rather comprehensive survey of the drug scene in Frankfort. He had written an article in the Louisville Courier-Journal describing this illegal activity. Another, a newsman-photographer employed by a New Bedford, Massachusetts television station, had met with members of the Black Panther movement at the time that certain riots and disorders occurred in New Bedford. The material he assembled formed the basis for a television program that followed. The third investigative reporter had met with members of the Black Panthers in northern California and had written an article about the nature and activities of the movement. In each instance there had been a commitment on the part of the media representative that he would not divulge the source of his article or story....

II. THE SHIELD LAW

Here we have a shield law, said to be as strongly worded as any in the country.

We read the legislative intent in adopting this statute in its present form as seeking to protect the confidential sources of the press as well as information so obtained by reporters and other news media representatives to the greatest extent permitted by the Constitution of the United States and that of the State of New Jersey. It is abundantly clear that appellants come fully within the literal language of the enactment....

III. THE SIXTH AMENDMENT AND ITS NEW JERSEY COUNTERPART

Viewed on its face, considered solely as a reflection of legislative intent to bestow upon the press as broad a shield as possible to protect against forced revelation of confidential source materials, this legislation is entirely constitutional. Indeed, no one appears to have attacked its facial constitutionality.

It is, however, argued, and argued very strenuously, that if enforced under the facts of this case, the Shield Law violates the Sixth Amendment of the Federal Constitution as well as Article 1, ¶10 of the New Jersey Constitution.... Essentially the argument is this: The Federal and State Constitutions each provide that in all criminal prosecutions the accused shall have the right "to have compulsory process for obtaining witnesses in his favor." Dr. Jascalevich seeks to obtain evidence to use in preparing and presenting his defense in the ongoing criminal trial in which he has been accused of multiple murders. He claims to come within the favor of these constitutional provisions--which he surely does. Finally, when faced with the Shield Law, he invokes the rather elementary but entirely sound proposition that where Constitution and statute collide, the latter must yield. Subject to what is said below, we find this argument unassailable.

The compulsory process clause of the Sixth Amendment has never been elaborately explicated by the Supreme Court. Not until 1967, when it decided Washington v. Texas, 388 U.S. 14, had the clause been directly construed. Westen, Confrontation and Compulsory Process: A Unified Theory of Evidence for Criminal Cases, 91 Harv. L. Rev. 567, 586 (1978). In Washington the petitioner sought the reversal of his conviction for murder. A Texas statute at the time provided that persons charged or convicted as co-participants in the same crime could not testify for one another. One Fuller, who had already been convicted of the murder, was prevented from testifying by virtue of the statute. The record indicated that had he testified his testimony would have been favorable to petitioner. The Court reversed the conviction on the ground that petitioner's Sixth Amendment right to compulsory process had been denied. At the same time it determined that the compulsory process clause in the Sixth Amendment was binding on state courts by virtue of the due process clause of the Fourteenth Amendment. It will be seen that Washington is like the present case in a significant respect. The Texas statute and the Sixth Amendment could not both stand. The latter of course prevailed. So must it be here....

Article I, ¶10 of the Constitution of the State of New Jersey contains, as we have seen, exactly the same language with respect to compulsory process as that found in the Sixth Amendment. There exists no authoritative explication of this constitutional provision. Indeed it has rarely been mentioned in our reported decisions. We interpret it as affording a defendant in a criminal prosecution the right to compel the attendance of witnesses and the production of documents and other material for which he may have, or may believe he has, a legitimate need in preparing or undertaking his defense. It also means that witnesses properly summoned will be required to testify and that material demanded by a properly phrased subpoena duces tecum will be forthcoming and available for appropriate examination and use.

Testimonial privileges, whether they derive from common law or from statute, which allow witnesses to withhold evidence seem to conflict with this provision. This conflict may arise in a variety of factual contexts with respect to different privileges. We confine our consideration here to the single privilege before us--that set forth in the Shield Law. We hold that Article 1, ¶10 of our Constitution prevails over this statute....

IV. PROCEDURAL MECHANISM

Appellants insist that they are entitled to a full hearing on the issues of relevance, materiality and overbreadth of the subpoena. We agree. The trial court recognized its obligation to conduct such a hearing, but the appellants have aborted that hearing by refusing to submit the material subpoenaed for an in camera inspection by the court to assist it in determining the motion to quash. That inspection is no more than a procedural tool, a device to be used to ascertain the relevancy and materiality of that material. Such an in camera inspection is not in itself an invasion of the statutory privilege. Rather it is a preliminary step to determine whether, and if so to what extent, the statutory privilege must yield to the defendant's constitutional rights. ... While we agree, then, that appellants should be afforded the hearing they are seeking, one procedural aspect of which calls for their compliance with the order for in camera inspection, we are also of the view that they, and those who in the future may be similarly situated, are entitled to a preliminary determination before being compelled to submit the subpoenaed materials to a trial judge for such inspection. Our decision in this regard is not, contrary to the suggestion in some of the briefs filed with us, mandated by the First Amendment; for in addition to ruling generally against the representatives of the press in Branzburg, the Court particularly and rather vigorously, rejected the claims there asserted that before going before the grand jury, each of the reporters, at the very least, was entitled to a preliminary hearing to establish a number of threshold issues. Branzburg v. Hayes, supra, 408 U.S. at 701-07. Rather, our insistence upon such a threshold determination springs from our obligation to give as much effect as possible, within ever-present constitutional limitations, to the very positively expressed legislative intent to protect the confidentiality and secrecy of sources from which the media derive information. To this end such a determination would seem a necessity.

Farber Variations: Clergymen, Psychiatrists, Lawyers

In the Farber case, the defendant in the criminal prosecution, Dr. Jascalevich, subpoenaed documents and solicited testimony that he alleged was relevant, material, and unavailable from any other source, including the prosecution. Dr. Jascalevich's lawyers alleged that the reporter, Myron Farber, had obtained this material in the course of his investigation into deaths in Dr. Jascalevich's hospital, which subsequently led to the reopening of the police investigation and the indictment of Dr. Jascalevich. Among the evidence sought by the defense counsel were Farber's notes and his recollections of interviews with Dr. Stanley Harris, a surgeon at the hospital where the criminal activities are said to have occurred. Dr. Harris admitted having spoken to Farber five times before the New York Times articles appeared and before his re-interview by the prosecutor's office. In his interview with the prosecutor, Dr. Harris stated that his suspicions of Dr. Jascalevich were originally aroused by the unexplained deaths of some of his patients. The defense characterized Dr. Harris as Dr. Jascalevich's principal accusor.

(1) Suppose that Dr. Harris's communications were made to his clergyman or to his psychiatrist rather than to Myron Farber. If defense counsel subpoenaed the clergyman or psychiatrist, how would the court be likely to treat a claim of privilege asserted on Dr. Harris's behalf by the clergyman or doctor under a state common law privilege for communications to clergymen or psychiatrists similar to proposed Rules 504 and 506?

(2) Suppose Dr. Harris's communications were with Martin Ferber, Esq., his attorney. If defense counsel subpoenaed Attorney Ferber, how would the court be likely to treat a claim of privilege asserted by the lawyer on Dr. Harris's behalf under a state common law lawyer-client privilege similar to proposed Rule 503?

To the extent that you feel that the court would react differently to a claim of clergyman, psychiatrist, or lawyer-client privilege than it did to Farber's claim of reporter's privilege, what explains the difference?

FRE 501 Privileges

Except as otherwise required by the Constitution of the United States or provided by Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory authority, the privilege of a witness, person, government, State, or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the privilege of a witness, person, government, State, or political subdivision thereof shall be determined in accordance with State law.

Is There Justification for the Attorney Client Privilege?

J. BENTHAM, RATIONALE OF JUDICIAL EVIDENCE

from The Works of Jeremy Bentham 473-479 (Browning ed. 1842), as quoted in 8 Wigmore, Evidence §2291, pp.549-551 (McNaughton rev. 1961)

When in consulting with a law adviser, attorney or advocate, a man has confessed his delinquency, or disclosed some fact which, if stated in court, might tend to operate in proof of it, such law adviser is not to be suffered to be examined as to any such point. The law adviser is neither to be compelled, nor so much as suffered, to betray the trust thus reposed in him. Not suffered? Why not?

Oh, because to betray a trust is treachery; and an act of treachery is an immoral act.

But if such confidence, when reposed, is permitted to be violated, and if this be known, (which, if such be the law, it will be), the consequence will be, that no such confidence will be reposed. Not reposed?--Well: and if it be not, wherein will consist the mischief? The man by the supposition is guilty; if not, by the supposition there is nothing to betray: let the law adviser say every thing he has heard, every thing he can have heard from his client, the client cannot have any thing to fear from it. That it will often happen that in the case supposed no such confidence will be reposed, is natural enough: the first thing the advocate or attorney will say to his client, will be,--Remember that, whatever you say to me, I shall be obliged to tell, if asked about it. What, then, will be the consequence? That a guilty person will not in general be able to derive quite so much assistance from his law adviser, in the way of concerting a false defence, as he may do at present....

... A rule of law which, in the case of the lawyer, gives an express license to that wilful concealment of the criminal's guilt, which would have constituted any other person an accessory in the crime, plainly declares that the practice of knowingly engaging one's self as the hired advocate of an unjust cause, is, in the eye of the law, or (to speak intelligibly) in that of the law-makers, an innocent, if not a virtuous practice. But for this implied declaration, the man who in this way hires himself out to do injustice or frustrate justice with his tongue, would be viewed in exactly the same light as he who frustrates justice or does injustice with any other instrument.

FRE 502. Attorney-Client Privilege and Work Product; Limitations on Waiver

The following provisions apply, in the circumstances set out, to disclosure of a communication or information covered by the attorney-client privilege or work-product protection.

(a) Disclosure Made in a Federal Proceeding or to a Federal Office or Agency; Scope of a Waiver

When the disclosure is made in a Federal proceeding or to a Federal office or agency and waives the attorney-client privilege or work-product protection, the waiver extends to an undisclosed communication or information in a Federal or State proceeding only if:

1. the waiver is intentional;

2. the disclosed and undisclosed communications or information concern the same subject matter; and

3. they ought in fairness to be considered together.

(b) Inadvertent disclosure.

When made in a Federal proceeding or to a Federal office or agency, the disclosure does not operate as a waiver in a Federal or State proceeding if:

1. the disclosure is inadvertent;

2. the holder of the privilege or protection took reasonable steps to prevent disclosure; and

3. the holder promptly took reasonable steps to rectify the error, including (if applicable) following Federal Rule of Civil Procedure 26(b)(5)(B).

Proposed but Not Enacted Rule 503. Lawyer-Client Privilege

(a) Definitions. As used in this rule:

(1) A "client" is a person, public officer, or corporation, association, or other organization or entity, either public or private, who is rendered professional legal services by a lawyer, or who consults a lawyer with a view to obtaining professional legal services from him.

(2) A "lawyer" is a person authorized, or reasonably believed by the client to be authorized, to practice law in any state or nation.

(3) A "representative of the lawyer" is one employed to assist the lawyer in the rendition of professional legal services.

(4) A communication is "confidential" if not intended to be disclosed to third persons other than those to whom disclosure is in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication.

(b) General rule of privilege. A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client, (1) between himself or his representative and his lawyer or his lawyer’s representative, or (2) between his lawyer and the lawyer’s representative, or (3) by hm or his lawyer to a lawyer representing another in a matter of common interest, or (4) between representatives of the client or between the client and a representative of the client, or (5) between lawyers representing the client.

(c) Who may claim privilege. The privilege may be claimed by the client, his guardian or conservator, the personal representative of a deceased client, or the successor, trustee, or similar representative of a corporation, association, or other organization, whether or not in existence. The person who was the lawyer at the time of the communication may claim the privilege but only on behalf of the client. His authority to do so is presumed in the absence of evidence to the contrary.

(d) Exceptions. There is no privilege under this rule:

(1) Furtherance of crime or fraud. If the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud; or

(2) Claimants through same deceased client. As to a communication relevant to an issue between parties who claim through the same deceased client, regardless of whether the claims are by testate or intestate succession or by inter vivos transaction; or

(3) Breach of duty by lawyer or client. As to a communication relevant to an issue of breach of duty by the lawyer to his client or by the client to his lawyer; or

(4) Document attested by lawyer. As to a communication relevant to an issue concerning an attested document to which the lawyer is an attesting witness; or

(5) Joint Clients. As to a communication relevant to a matter of common interest between two or more clients if the communication was made by any of them to a lawyer retained or consulted in common, when offered in an action between any of the clients.

The Blackacre Fraud

(1) Action to enjoin D from recording a deed to Blackacre allegedly procured by fraud from the trustee of the Widow Brown Trust. While the first witness is testifying for P at trial, P's attorney notices that D is whispering to his attorney. After the first witness stands down, P's attorney calls D's attorney and asks him to repeat his conversation with D. On D's attorney's objection, what ruling and why?

(2) Instead of calling D's attorney, P calls D to testify as to what he said to his attorney. On D's attorney's objection, what ruling and why?

(3) Suppose, instead, that D is asked, "What did you tell the trustee of the Widow Brown Trust?" D replies, "I object. I just told that to my attorney." What ruling and why?

(4) Suppose that D is asked to hand over to P's attorney notes that he has been writing to his attorney during the trial. On D's objection, what ruling and why? What result if D is asked to produce notes and letters to his attorney sent prior to the trial?

(5) Before trial, at a preliminary hearing, P's attorney moves for an order directing D's attorney, if he has possession of the deed or any document purporting to be the deed, to deliver it to the clerk to be marked as Plaintiff's Exhibit 1 for identification. D's attorney objects on the grounds that the deed was given to him in private by D. What ruling and why?

The Eavesdropper

Action for breach of promise of marriage. At trial, P called W to testify that a few days before the action was commenced, W was at the office of D's attorney. W observed D enter and through a closed door overheard a muted conversation between D and his attorney in which D said he was afraid a woman would sue him for breach of a promise of marriage. D objects to W's proposed testimony on grounds of the lawyer-client privilege. What ruling and why?

The Energetic Investigator

Action for damages for assault and battery. D's attorney, Silvertongue, has been trying to arrange an interview with P for some time but with no success. Silvertongue sends Archie Goodwind, his private investigator, over to P's counsel's office to try to arrange for an interview. Archie is cooling his heels in opposing counsel's waiting room when he observes P entering the office. Seizing the initiative, Archie rises to his feet and introduces himself to P as "a private investigator on the P v. D case." Archie explains that the lawyer is busy. At this point, P starts to discuss the facts of the case with Archie. Pleased with this opportunity to talk to P about the case, Archie directs him into an empty conference room off the waiting room, where he interrogates P in detail for 35 minutes.

At trial, D calls Archie to testify to statements made by P during this interview. P's attorney objects on grounds of lawyer-client privilege. What ruling and why?

Hit and Run

N.Y. Times, Oct. 12, 1988

WEST PALM BEACH, Fla. (AP)--The police know many facts about the hit-and-run death of Mark Baltes, whose body was dragged 60 feet when he was struck by a white Buick after midnight on March 9, 1986.

But there is one crucial fact the authorities lack: the name of the driver. The driver's lawyer had shielded the identity for more than two and a half years. This week the lawyer, Barry Krischer, may finally be ordered to divulge his secret.

In a case that challenges the sanctity of the confidential relationship between lawyer and client, a Florida district judge is considering a request by Mr. Baltes' parents to force Mr. Krischer to disclose his client's name.

The unusual struggle, which has aroused considerable interest among lawyers, began the day after the accident when the driver asked Mr. Krischer to initiate a plea bargain arrangement without disclosing his client's name to the authorities.

According to the police, Mr. Baltes, a 28-year old electrician, was struck and killed as he staggered down a road at night while drunk. Detectives used car fragments at the scene and paint chips from Mr. Baltes' skull to theorize that the vehicle was a 1984 or 1985 Buick Riviera. But hundreds of interviews and a reward failed to yield any firm suspects.

Mr. Krischer, in an attempt to block pressure to disclose the name, retained another lawyer, Scott Richardson, who opened talks with prosecutors but did not divulge Mr. Krischer's link to the case. Mr. Richardson says he never learned the name of the driver. Mr. Krischer eventually came forward but refused to identify his client.

Joseph D. Farrish, Jr., an attorney for Mr. Baltes' parents, filed a $6 million wrongful death suit against an unspecified defendant in February, naming the unknown driver Dow. He then subpoenaed Mr. Krischer to testify to the identity of his client. Mr. Krischer refused on grounds of attorney-client privilege. Mr. Farrish contends that the attorney-client privilege does not give lawyers a blanket under which to conceal the identity of a fugitive.

"To me the case is quite clear," said Mr. Farrish. "I'm ready to take it as far as they are willing to go."

Mr. Baltes' parents, who have sat quietly through hearings this month, are exasperated at efforts to learn the name. "I'm getting the lawyer-client privilege up to here," said the dead man's mother, Mildred Baltes. "It certainly doesn't help solve any cases."

Earlier this year the Balteses even agreed to allow state prosecutors to offer the driver immunity from criminal, but not civil, prosecution if the person came forward.

"If there was ever a case to test the sanctity of the attorney-client privilege, this one is it," said Prof. Andrew Kaufman of the Harvard University Law School, who is author of a book on legal ethics. "In most disputes over the attorney-client privilege, the identity is known and the contents of the conversations are not. What makes this case unique is that it is just the opposite."

N.Y. Times, Oct. 13, 1988

Article by Jeffrey Schmalz

MIAMI--In a case closely watched in legal circles nationwide, a Florida Judge ruled today that a lawyer does not have to disclose the identity of a client who may have killed a man in a hit-and-run accident two years ago. The decision will be appealed....

Judge Timothy Poulton ruled that the name was protected by the attorney-client privilege. "If we fail to rule as we do in this case," Judge Poulton wrote, "the result could be the erection of a wall between the public and attorneys."

Mr. Farrish said: "I bet today this fleeing felon is laughing at the system."

Assume you are law clerk working with a judge on the court of appeals. The judge sends you these New York Times articles and asks for your analysis.

Who's Got the Button?

(1) Wayman allegedly engaged in certain sexual conduct with a minor, his daughter Sandra, in 1979. Subsequently, she left Arizona to live in California. While she was in California, Wayman wrote and mailed certain letters to her in which, assertedly, he discussed their sexual conduct. Sandra later returned to her parents' home in Arizona, bringing the letters with her. She then left home again but did not take the letters with her. One week later, the criminal complaint in this case was filed. A search warrant was issued to obtain certain incriminating items from the Waymans' residence, including the letters. The letters, however, were not found in the search because prior to the search Wayman delivered the letters to Mehrens, his attorney. Mehrens had the letters in his possession when a subpoena duces tecum, issued by the Maricopa County Grand Jury, directed him to appear and bring the letters. Mehrens moved to quash the subpoena and delivered the letters under seal to the Judge.

How would you rule?

(2) The trial court granted the motion to quash the grand jury subpoena. The letters, however, remained under seal with the court. Then, at the state's request, the trial court decided to return the letters to Mehrens. It ordered him to pick up the letters at nine o'clock the following morning. Meanwhile, the state obtained a warrant to search Mehrens. As Mehrens left the court chambers after picking up the letters, police officers served him with the warrant. When Mehrens refused to comply with the warrant voluntarily, the police seized his briefcase containing the letters.

Mehrens moved for return of the letters. How would you rule?

WITNESSES

FRE 601. General Rule of Competency

Every person is competent to be a witness except as otherwise provided in these rules. ...

FRE 602. Lack of Personal Knowledge

A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the witness' own testimony. This rule is subject to the provisions of rule 703, relating to opinion testimony by expert witnesses.

FRE 603. Oath or Affirmation

Before testifying, every witness shall be required to declare that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness' conscience and impress the witness' mind with the duty to do so.

FRE 604. Interpreters

An interpreter is subject to the provisions of these rules relating to qualification as an expert and the administration of an oath or affirmation to make a true translation.

Rule 605. Competency of Judge as Witness

The judge presiding at the trial may not testify in that trial as a witness. No objection need be made in order to preserve the point.

Rule 606. Competency of Juror as Witness

(a) At the trial.

A member of the jury may not testify as a witness before that jury in the trial of the case in which the juror is sitting. If the juror is called so to testify, the opposing party shall be afforded an opportunity to object out of the presence of the jury.

(b) Inquiry into validity of verdict or indictment.

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith, except that. But a juror may testify on the question about (1) whether extraneous prejudicial information was improperly brought to the jury's attention, (2) or whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form. Nor may a A juror's affidavit or evidence of any statement by the juror concerning may not be received on a matter about which the juror would be precluded from testifying be received for these purposes.

FRE 607. Who May Impeach

The credibility of a witness may be attacked by any party, including the party calling the witness.

FRE 608. Evidence of Character and Conduct of Witness

(a) Opinion and reputation evidence of character.

The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.

(b) Specific instances of conduct.

Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' character for truthfulness, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.

The giving of testimony, whether by an accused or by any other witness, does not operate as a waiver of the accused's or the witness' privilege against self-incrimination when examined with respect to matters that relate only to character for truthfulness.

FRE 609. Impeachment by Evidence of Conviction of Crime

(a) General rule.

For the purpose of attacking the credibility character for truthfulness of a witness,

(1) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused; and

(2) evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of the punishment, if it readily can be determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness.

(b) Time limit.

Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than 10 years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.

(c) Effect of pardon, annulment, or certificate of rehabilitation.

Evidence of a conviction is not admissible under this rule if (1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding of the rehabilitation of the person convicted, and that person has not been convicted of a subsequent crime which that was punishable by death or imprisonment in excess of one year, or (2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.

(d) Juvenile adjudications.

Evidence of juvenile adjudications is generally not admissible under this rule. The court may, however, in a criminal case allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence.

(e) Pendency of appeal.

The pendency of an appeal therefrom does not render evidence of a conviction inadmissible. Evidence of the pendency of an appeal is admissible.

FRE 610. Religious Beliefs or Opinions

Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature the witness' credibility is impaired or enhanced.

FRE 611. Mode and Order of Interrogation and Presentation

(a) Control by court.

The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.

(b) Scope of cross-examination.

Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination.

(c) Leading questions.

Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness' testimony. Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.

FRE 612. Writing Used to Refresh Memory

Except as otherwise provided in criminal proceedings by section 3500 of title 18, United States Code, if a witness uses a writing to refresh memory for the purpose of testifying, either--

(1) while testifying, or

(2) before testifying, if the court in its discretion determines it is necessary in the interests of justice,

an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. If it is claimed that the writing contains matters not related to the subject matter of the testimony the court shall examine the writing in camera, excise any portions not so related, and order delivery of the remainder to the party entitled thereto. Any portion withheld over objections shall be preserved and made available to the appellate court in the event of an appeal. If a writing is not produced or delivered pursuant to order under this rule, the court shall make any order justice requires, except that in criminal cases when the prosecution elects not to comply, the order shall be one striking the testimony or, if the court in its discretion determines that the interests of justice so require, declaring a mistrial.

FRE 613. Prior Statements of Witnesses

(a) Examining witness concerning prior statement.

In examining a witness concerning a prior statement made by the witness, whether written or not, the statement need not be shown nor its contents disclosed to the witness at that time, but on request the same shall be shown or disclosed to opposing counsel.

(b) Extrinsic evidence of prior inconsistent statement of witness.

Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a party-opponent as defined in rule 801(d)(2).

FRE 614. Calling and Interrogation of Witnesses by Court

(a) Calling by court.

The court may, on its own motion or at the suggestion of a party, call witnesses, and all parties are entitled to cross-examine witnesses thus called.

(b) Interrogation by court.

The court may interrogate witnesses, whether called by itself or by a party.

(c) Objections.

Objections to the calling of witnesses by the court or to interrogation by it may be made at the time or at the next available opportunity when the jury is not present.

FRE 615. Exclusion of Witnesses

At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This rule does not authorize exclusion of (1) a party who is a natural person, or (2) an officer or employee of a party which is not a natural person designated as its representative by its attorney, or (3) a person whose presence is shown by a party to be essential to the presentation of the party's cause, or (4) a person authorized by statute to be present.ARTICLE VII. OPINIONS AND EXPERT TESTIMONY

EXPERTS

FRE 701. Opinion Testimony by Lay Witnesses

If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

Mrs. Jones's Baby

W testifies, "I saw Mrs. Jones about three hundred yards away walking with her baby in her arms." Opposing counsel objects on the grounds of opinion testimony. What ruling and why?

Presidential Debate

Suppose that you were asked to watch and then testify about a presidential debate. What could you say about how each candidate looked and sounded without violating Rule 701?

FRE 702. Testimony by Experts

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

FRE 703. Bases of Opinion Testimony by Experts

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect.

Daubert v. Merrell Dow Pharmaceuticals, Inc.

113 S. Ct. 2786 (1993)

Justice BLACKMUN delivered the opinion of the Court.

In this case we are called upon to determine the standard for admitting expert scientific testimony in a federal trial.

Petitioners Jason Daubert and Eric Schuller are minor children born with serious birth defects. They and their parents sued respondent in California state court, alleging that the birth defects had been caused by the mothers' ingestion of Bendectin, a prescription anti-nausea drug marketed by respondent. Respondent removed the suits to federal court on diversity grounds.

After extensive discovery, respondent moved for summary judgment, contending that Bendectin does not cause birth defects in humans and that petitioners would be unable to come forward with any admissible evidence that it does. In support of its motion, respondent submitted an affidavit of Steven H. Lamm, physician and epidemiologist, who is a well-credentialed expert on the risks from exposure to various chemical substances. Doctor Lamm stated that he had reviewed all the literature on Bendectin and human birth defects--more than 30 published studies involving over 130,000 patients. No study had found Bendectin to be a human teratogen (i.e., a substance capable of causing malformations in fetuses). On the basis of this review, Doctor Lamm concluded that maternal use of Bendectin during the first trimester of pregnancy has not been shown to be a risk factor for human birth defects.

Petitioners did not (and do not) contest this characterization of the published record regarding Bendectin. Instead, they responded to respondent's motion with the testimony of eight experts of their own, each of whom also possessed impressive credentials. These experts had concluded that Bendectin can cause birth defects. Their conclusions were based upon "in vitro" (test tube) and "in vivo" (live) animal studies that found a link between Bendectin and malformations; pharmacological studies of the chemical structure of Bendectin that purported to show similarities between the structure of the drug and that of other substances known to cause birth defects; and the "reanalysis" of previously published epidemiological (human statistical) studies.

The District Court granted respondent's motion for summary judgment. The court stated that scientific evidence is admissible only if the principle upon which it is based is " 'sufficiently established to have general acceptance in the field to which it belongs.' " 727 F. Supp. 570, 572 (S.D. Cal. 1989). The court concluded that petitioners' evidence did not meet this standard. Given the vast body of epidemiological data concerning Bendectin, the court held, expert opinion which is not based on epidemiological evidence is not admissible to establish causation. Thus, the animal-cell studies, live-animal studies, and chemical-structure analyses on which petitioners had relied could not raise by themselves a reasonably disputable jury issue regarding causation. Petitioners' epidemiological analyses, based as they were on recalculations of data in previously published studies that had found no causal link between the drug and birth defects, were ruled to be inadmissible because they had not been published or subjected to peer review.

The United States Court of Appeals for the Ninth Circuit affirmed. 951 F.2d 1128 (1991). Citing Frye v. United States, 54 App. D.C. 46, 293 F. 1013, 1014 (1923), the court stated that expert opinion based on a scientific technique is inadmissible unless the technique is "generally accepted" as reliable in the relevant scientific community. 951 F.2d at 1129-1130. The court declared that expert opinion based on a methodology that diverges "significantly from the procedures accepted by recognized authorities in the field ... cannot be shown to be 'generally accepted as a reliable technique.' " Id., at 1130....

We granted certiorari in light of sharp divisions among the courts regarding the proper standard for the admission of expert testimony.

In the 70 years since its formulation in the Frye case, the "general acceptance" test has been the dominant standard for determining the admissibility of novel scientific evidence at trial. See E. Green & C. Nesson, Problems, Cases, and Materials on Evidence 649 (1983). Although under increasing attack of late, the rule continues to be followed by a majority of courts, including the Ninth Circuit.

The Frye test has its origin in a short and citation-free 1923 decision concerning the admissibility of evidence derived from a systolic blood pressure deception test, a crude precursor to the polygraph machine. In what has become a famous (perhaps infamous) passage, the then Court of Appeals for the District of Columbia described the device and its operation and declared: "Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and 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." 54 App. D.C. at 47. Because the deception test had "not yet gained such standing and scientific recognition among physiological and psychological authorities as would justify the courts in admitting expert testimony deduced from the discovery, development, and experiments thus far made," evidence of its results was ruled inadmissible. Ibid.

The merits of the Frye test have been much debated, and scholarship on its proper scope and application is legion. Petitioners' primary attack, however, is not on the content but on the continuing authority of the rule. They contend that the Frye test was superseded by the adoption of the Federal Rules of Evidence. We agree.

We interpret the legislatively-enacted Federal Rules of Evidence as we would any statute. Rule 402 provides the baseline: "All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible." "Relevant evidence" is defined as that which has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Rule 401. The Rule's basic standard of relevance thus is a liberal one.

Frye, of course, predated the Rules by half a century. In United States v. Abel, 469 U.S. 45 (1984), we considered the pertinence of background common law in interpreting the Rules of Evidence. We noted that the Rules occupy the field but, quoting Professor Cleary, the Reporter, explained that the common law nevertheless could serve as an aid to their application: "In principle, under the Federal Rules no common law of evidence remains. 'All relevant evidence is admissible, except as otherwise provided....' In reality, of course, the body of common law knowledge continues to exist, though in the somewhat altered form of a source of guidance in the exercise of delegated powers." Id., at 51-52. We found the common-law precept at issue in the Abel case entirely consistent with Rule 402's general requirement of admissibility, and considered it unlikely that the drafters had intended to change the rule. In Bourjaily v. United States, 483 U.S. 171 (1987), on the other hand, the Court was unable to find a particular common-law doctrine in the Rules, and so held it superseded.

Here there is a specific Rule that speaks to the contested issue. Rule 702, governing expert testimony, provides: "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." Nothing in the text of this Rule establishes "general acceptance" as an absolute prerequisite to admissibility. ... That austere standard, absent from and incompatible with the Federal Rules of Evidence, should not be applied in federal trials.

That the Frye test was displaced by the Rules of Evidence does not mean, however, that the Rules themselves place no limits on the admissibility of purportedly scientific evidence. Nor is the trial judge disabled from screening such evidence. To the contrary, under the Rules the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.

The primary locus of this obligation is Rule 702, which clearly contemplates some degree of regulation of the subjects and theories about which an expert may testify. "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue" an expert "may testify thereto." The subject of an expert's testimony must be "scientific ... knowledge." The adjective "scientific" implies a grounding in the methods and procedures of science. Similarly, the word "knowledge" connotes more than subjective belief or unsupported speculation. The term "applies to any body of known facts or to any body of ideas inferred from such facts or accepted as truths on good grounds." Webster's Third New International Dictionary 1252 (1986). Of course, it would be unreasonable to conclude that the subject of scientific testimony must be "known" to a certainty; arguably, there are no certainties in science. But, in order to qualify as "scientific knowledge," an inference or assertion must be derived by the scientific method. Proposed testimony must be supported by appropriate validation--i.e., "good grounds," based on what is known. In short, the requirement that an expert's testimony pertain to "scientific knowledge" establishes a standard of evidentiary reliability.

Rule 702 further requires that the evidence or testimony "assist the trier of fact to understand the evidence or to determine a fact in issue." This condition goes primarily to relevance. "Expert testimony which does not relate to any issue in the case is not relevant and, ergo, non-helpful." 3 Weinstein & Berger ¶702[02], p.702-18. The consideration has been aptly described by Judge Becker as one of "fit." Ibid. "Fit" is not always obvious, and scientific validity for one purpose is not necessarily scientific validity for other, unrelated purposes. The study of the phases of the moon, for example, may provide valid scientific "knowledge" about whether a certain night was dark, and if darkness is a fact in issue, the knowledge will assist the trier of fact. However (absent creditable grounds supporting such a link), evidence that the moon was full on a certain night will not assist the trier of fact in determining whether an individual was unusually likely to have behaved irrationally on that night. Rule 702's "helpfulness" standard requires a valid scientific connection to the pertinent inquiry as a precondition to admissibility.

That these requirements are embodied in Rule 702 is not surprising. Unlike an ordinary witness, see Rule 701, an expert is permitted wide latitude to offer opinions, including those that are not based on first-hand knowledge or observation. See Rules 702 and 703. Presumably, this relaxation of the usual requirement of first-hand knowledge--a rule which represents "a 'most pervasive manifestation' of the common law insistence upon 'the most reliable sources of information,' " Advisory Committee's Notes on Fed. Rule Evid. 602--is premised on an assumption that the expert's opinion will have a reliable basis in the knowledge and experience of his discipline.

Faced with a proffer of expert scientific testimony, then, the trial judge must determine at the outset, pursuant to Rule 104(a), whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue.(1)11 This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue. We are confident that federal judges possess the capacity to undertake this review. Many factors will bear on the inquiry, and we do not presume to set out a definitive checklist or test. But some general observations are appropriate.

Ordinarily, a key question to be answered in determining whether a theory or technique is scientific knowledge that will assist the trier of fact will be whether it can be (and has been) tested. "Scientific methodology today is based on generating hypotheses and testing them to see if they can be falsified; indeed, this methodology is what distinguishes science from other fields of human inquiry." [Green, Expert Witnesses and Sufficiency of Evidence in Toxic Substances Litigation: The Legacy of Agent Orange and Bendectin Litigation, 86 Nw. U.L. Rev. 643, 645 (1992).]

Another pertinent consideration is whether the theory or technique has been subjected to peer review and publication. Publication (which is but one element of peer review) is not a sine qua non of admissibility; it does not necessarily correlate with reliability, and in some instances well-grounded but innovative theories will not have been published. Some propositions, moreover, are too particular, too new, or of too limited interest to be published. But submission to the scrutiny of the scientific community is a component of "good science," in part because it increases the likelihood that substantive flaws in methodology will be detected. The fact of publication (or lack thereof) in a peer-reviewed journal thus will be a relevant, though not dispositive, consideration in assessing the scientific validity of a particular technique or methodology on which an opinion is premised.

Additionally, in the case of a particular scientific technique, the court ordinarily should consider the known or potential rate of error, see, e.g., United States v. Smith, 869 F.2d 348, 353-354 (CA7 1989) (surveying studies of the error rate of spectrographic voice identification technique), and the existence and maintenance of standards controlling the technique's operation.

Finally, "general acceptance" can yet have a bearing on the inquiry. A "reliability assessment does not require, although it does permit, explicit identification of a relevant scientific community and an express determination of a particular degree of acceptance within that community." United States v. Downing, 753 F.2d, at 1238. See also 3 Weinstein & Berger ¶702[03], pp.702-41 to 702-42. Widespread acceptance can be an important factor in ruling particular evidence admissible, and "a known technique that has been able to attract only minimal support within the community," Downing, supra, at 1238, may properly be viewed with skepticism.

The inquiry envisioned by Rule 702 is, we emphasize, a flexible one. Its overarching subject is the scientific validity--and thus the evidentiary relevance and reliability--of the principles that underlie a proposed submission. The focus, of course, must be solely on principles and methodology, not on the conclusions that they generate....

To summarize: "general acceptance" is not a necessary precondition to the admissibility of scientific evidence under the Federal Rules of Evidence, but the Rules of Evidence--especially Rule 702--do assign to the trial judge the task of ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand. Pertinent evidence based on scientifically valid principles will satisfy those demands.

The inquiries of the District Court and the Court of Appeals focused almost exclusively on "general acceptance," as gauged by publication and the decisions of other courts. Accordingly, the judgment of the Court of Appeals is vacated and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Daubert v. Merrell Dow Pharmaceuticals, Inc. (on Remand)

43 F.3d 1311 (9th Cir. 1995)

Kozinski, Circuit Judge.

On remand from the United States Supreme Court, we undertake "the task of ensuring that an expert’s testimony both rests on a reliable foundation and is relevant to the task at hand." Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993).

I

A. BACKGROUND

Two minors brought suit against Merrell Dow Pharmaceuticals, claiming they suffered limb reduction birth defects because their mothers had taken Bendectin, a drug prescribed for morning sickness to about 17.5 million pregnant women in the United States between 1957 and 1982. This appeal deals with an evidentiary question: whether certain expert scientific testimony is admissible to prove that Bendectin caused the plaintiffs’ birth defects. ...

The opinions proffered by plaintiffs’ experts do not, to understate the point, reflect the consensus within the scientific community. The FDA—an agency not known for its promiscuity in approving drugs—continues to approve Bendectin for use by pregnant women because "available data do not demonstrate an association between birth defects and Bendectin." U.S. Department of Health and Human Services News, No. P80-45 (Oct. 7, 1980). Every published study here and abroad—and there have been many—concludes that Bendectin is not a teratogen. In fact, apart from the small but determined group of scientists testifying on behalf of the Bendectin plaintiffs in this and many other cases, there doesn’t appear to be a single scientist who has concluded that Bendectin causes limb reduction defects.

It is largely because the opinions proffered by plaintiffs’ experts run counter to the substantial consensus in the scientific community that we affirmed the district court’s grant of summary judgment the last time the case appeared before us. The standard for admissibility of expert testimony in this circuit at the time was the so-called Frye test: Scientific evidence was admissible if it was based on a scientific technique generally accepted as reliable within the scientific community. We found that the district court properly applied this standard, and affirmed. The Supreme Court reversed, holding that Frye was superseded by Federal Rule of Evidence 702, and remanded for us to consider the admissibility of plaintiffs’ expert testimony under this new standard. . . .

II

A. BRAVE NEW WORLD

Federal judges ruling on the admissibility of expert scientific testimony face a far more complex and daunting task in a post-Daubert world than before. The judge’s task under Frye is relatively simple: to determine whether the method employed by the experts is generally accepted in the scientific community. Under Daubert, we must engage in a difficult, two-part analysis. First, we must determine nothing less than whether the experts’ testimony reflects "scientific knowledge," whether their findings are "derived by the scientific method," and whether their work product amounts to "good science." Second, we must ensure that the proposed expert testimony is "relevant to the task at hand," i.e., that it logically advances a material aspect of the proposing party’s case. The Supreme Court referred to this second prong of the analysis as the "fit" requirement.

The first prong of Daubert puts federal judges in an uncomfortable position. The question of admissibility only arises if it is first established that the individuals whose testimony is being proffered are experts in a particular scientific field; here, for example, the Supreme Court waxed eloquent on the impressive qualifications of plaintiffs’ experts. Yet something doesn’t become "scientific knowledge" just because it’s uttered by a scientist; nor can an expert’s self-serving assertion that his conclusions were "derived by the scientific method" be deemed conclusive, else the Supreme Court’s opinion could have ended with footnote two. As we read the Supreme Court’s teaching in Daubert, therefore, though we are largely untrained in science and certainly no match for any of the witnesses whose testimony we are reviewing, it is our responsibility to determine whether those experts’ proposed testimony amounts to "scientific knowledge," constitutes "good science," and was "derived by the scientific method."

The task before us is more daunting still when the dispute concerns matters at the very cutting edge of scientific research, where fact meets theory and certainty dissolves into probability. As the record in this case illustrates, scientists often have vigorous and sincere disagreements as to what research methodology is proper, what should be accepted as sufficient proof for the existence of a "fact," and whether information derived by a particular method can tell us anything useful about the subject under study.

Our responsibility, then, unless we badly misread the Supreme Court’s opinion, is to resolve disputes among respected, well-credentialed scientists about matters squarely within their expertise, in areas where there is no scientific consensus as to what is and what is not "good science," and occasionally to reject such expert testimony because it was not "derived by the scientific method." Mindful of our position in the hierarchy of the federal judiciary, we take a deep breath and proceed with this heady task.

B. DEUS EX MACHINA

The Supreme Court’s opinion in Daubert focuses closely on the langauge of Fed. R. Evid. 702, which permits opinion testimony by experts as to matters amounting to "scientific . . . knowledge." The Court recognized, however, that knowledge in this context does not mean absolute certainty. Rather, the Court said, "in order to qualify as ‘scientific knowledge,’ an inference or assertion must be derived by the scientific method." Elsewhere in its opinion, the Court noted that Rule 702 is satisfied where the proffered testimony is "based on scientifically valid principles." Our task, then, is to analyze not what the experts say, but what basis they have for saying it.

Which raises the question: How do we figure out whether scientists have derived their findings through the scientific method or whether their testimony is based on scientifically valid principles? Each expert proffered by the plaintiffs assures us that he has "utiliz[ed] the type of data that is generally and reasonably relied upon by scientists" in the relevant field, and that he has "utilized the methods and methodology that would generally and reasonably be accepted" by people who deal in these matters. The Court held, however, that federal judges perform a "gatekeeping role," to do so they must satisfy themselves that scientific evidence meets a certain standard of reliability before it is admitted. This means that the expert’s bald assurance of validity is not enough. Rather, the party presenting the expert must show that the expert’s findings are based on sound science, and this will require some objective, independent validation of the expert’s methodology.

While declining to set forth a "definitive checklist or test," the Court did list several factors federal judges can consider in determining whether to admit expert scientific testimony under Fed. R. Evid. 702: whether the theory or technique employed by the expert is generally accepted in the scientific community; whether it’s been subjected to peer review and publication; whether it can be and has been tested; and whether the known or potential rate of error is acceptable.3 We read these factors as illustrative rather than exhaustive; similarly, we do not deem each of them to be equally applicable (or applicable at all) in every case. Rather, we read the Supreme Court as instructing us to determine whether the analysis undergirding the experts’ testimony falls within the range of accepted standards governing how scientists conduct their research and reach their conclusions.

One very significant fact to be considered is whether the experts are proposing to testify about matters growing naturally and directly out of research they have conducted independent of the litigation, or whether they have developed their opinions expressly for purposes of testifying. That an expert testifies for money does not necessarily cast doubt on the reliability of his testimony, as few experts appear in court merely as an eleemosynary gesture. But in determining whether proposed expert testimony amounts to good science, we may not ignore the fact that a scientist’s normal workplace is the lab or the field, not the courtroom or the lawyer’s office.

That an expert testifies based on research he has conducted independent of the litigation provides important, objective proof that the research comports with the dictates of good science. See Peter W. Huber,

3. These factors raise many questions, such as how do we determine whether the rate of error is acceptable, and by what standard? Or, what should we infer from the fact that the methodology has been tested, but only by the party’s own expert or experts? Do we ask whether the methodology they employ to test their methodology is itself methodologically sound? Such questions only underscore the basic problem, which is that we must devise standards for acceptability where respected scientists disagree on what’s acceptable.

Galileo’s Revenge: Junk Science in the Courtroom 206-09 (1991) (describing how the prevalent practice of expert-shopping leads to bad science). For one thing, experts whose findings flow from existing research are less likely to have been biased toward a particular conclusion by the promise of remuneration; when an expert prepares reports and findings before being hired as a witness, that record will limit the degree to which he can tailor his testimony to serve a party’s interests. Then, too, independent research carries its own indicia of reliability, as it is conducted, so to speak, in the usual course of business and must normally satisfy a variety of standards to attract funding and institutional support. Finally, there is usually a limited number of scientists actively conducting research on the very subject that is germane to a particular case, which provides a natural constraint on parties’ ability to shop for experts who will come to the desired conclusion. That the testimony proffered by an expert is based directly on legitimate, preexisting research unrelated to the litigation provides the most persuasive basis for concluding that the opinions he expresses were "derived by the scientific method."

We have examined carefully the affidavits proffered by plaintiffs’ experts, as well as the testimony from prior trials that plaintiffs have introduced in support of that testimony, and find that none of the experts based his testimony on preexisting or independent research. While plaintiffs’ scientists are all experts in their respective fields, none claims to have studied the effect of Bendectin on limb reduction defects before being hired to testify in this or related cases.

If the proffered expert testimony is not based on independent research, the party proffering it must come forward with other objective, verifiable evidence that the testimony is based on "scientifically valid principles." One means of showing this is by proof that the research and analysis supporting the proffered conclusions have been subjected to normal scientific scrutiny through peer review and publication. Huber, Galileo’s Revenge at 209 (suggesting that "[t]he ultimate test of [a scientific expert’s] integrity is her readiness to publish and be damned").

Peer review and publication do not, of course, guarantee that the conclusions reached are correct; much published scientific research is greeted with intense skepticism and is not borne out by further research. But the test under Daubert is not the correctness of the expert’s conclusions but the soundness of his methodology. That the research is accepted for publication in a reputable scientific journal after being subjected to the usual rigors of peer review is a significant indication that it is taken seriously by other scientists, i.e., that it means at least the minimal criteria of good science. . . . If nothing else, peer review and publication "increase the likelihood that substantive flaws in methodology with be detected."

Bendectin litigation has been pending in the courts for over a decade, yet the only review the plaintiffs’ experts’ work has received has been by judges and juries, and the only place their theories and studies have been published is in the pages of federal and state reporters. None of the plaintiffs’ experts has published his work on Bendectin in a scientific journal or solicited formal review by his colleagues. Despite the many years the controversy has been brewing, no one in the scientific community—except defendant’s experts—has deemed these studies worthy of verification, refutation or even comment. It’s as if there were a tacit understanding within the scientific community that what’s going on here is not science at all, but litigation.

Establishing that an expert’s proffered testimony grows out of pre-litigation research or that the expert’s research has been subjected to peer review are the two principal ways the proponent of expert testimony can show that the evidence satisfies the first prong of Rule 702.10 Where such evidence is unavailable, the proponent of expert scientific testimony may attempt to statisfy its burden through the testimony of its own experts. For such a showing to be sufficient, the experts must explain precisely how they went about reaching their conclusions and point to some objective source—a learned treatise, the policy statement of a professional association, a published article in a reputable scientific journal or the like—to show that they have followed the scientific method, as it is practiced by (at least) a recognized minority of scientists in their field. See United States v. Rincom, 28 F.3d 921, 924 (9th Cir. 1994) (research must be described "in sufficient detail that the district court [can] determine if the research was scientifically valid"). This underscores the difference between Daubert and Frye. Under Frye, the party proffering scientific evidence had to show it was based on the method generally accepted in the scientific community. The focus under Daubert is on the reliability of the methodology, and in addressing that question the court and the parties are not limited to what is generally accepted; methods accepted by a minority in the scientific community may well be sufficient. However, the party proffering the evidence must explain the expert’s methodology and demonstrate in some objectively verifiable way that the expert has both chosen a reliable scientific method and followed it faithfully. Of course, the fact that one party’s experts use a methodology accepted by only a minority of scientists would be a proper basis for impeachment at trial.

Plaintiffs have made no such showing. As noted above, plaintiffs rely entirely on the experts’ unadorned assertions that the methodology they employed comports with standard scientific procedures. In support of these assertions, plaintiffs offer only the trial and deposition testimony of these experts in other cases. While these materials indicate that plaintiffs’ experts have relied on animal studies, chemical structure analyses and epidemiological data, they neither explain the methodology the experts followed to reach their conclusions nor point to any external source to validate that methodology. We’ve been presented with only the experts’ qualifications, their conclusions and their assurances of reliability. Under Daubert, that’s not enough.

This is especially true of Dr. Palmer—the only expert willing to testify "that Bendectin did cause the limb defects in each of the children." In support of this conclusion, Dr. Palmer asserts only that Bendectin is a teratogen and that he has examined the plaintiffs’ medical records, which apparently reveal the timing of their mothers’ ingestion of the drug. Dr. Palmer offers no tested or testable theory to explain how, from this limited information, he was able to eliminate all other potential causes of birth defects, nor does he explain how he alone can state as a fact that Bendectin caused plaintiffs’ injuries. We therefore agree with the Sixth Circuit’s observation that "Dr. Palmer does not testify on the basis of the collective view of his scientific discipline, nor does he take issue with his peers and explain the grounds for his differences. Indeed, no understandable scientific basis is stated. Personal opinion, not science, is testifying here." For this reason, Dr. Palmer’s testimony is inadmissible as a matter of law under Rule 702.

The failure to make any objective showing as to admissibility under the first prong of Rule 702 would also fatally undermine the testimony of plaintiffs’ other experts, but for the peculiar posture of this case. Plaintiffs submitted their experts’ affidavits while Frye was the law of the circuit and, although they’ve not requested an opportunity to augment their experts’ affidavits in light of Daubert, the interests of justice would be disserved by precluding plaintiffs from doing so. Given the opportunity to augment their original showing of admissibility, plaintiffs might be able to show that the methodology adopted by some of their experts is based on sound scientific principles. For instance, plaintiffs’ epidemiologists might validate their reanalyses by explaining why they chose only certain of the data that was available, or the experts relying on animal studies might point to some authority for extrapolating human causation from teratogenicity in animals.

Were this the only question before us, we would be inclined to remand to give plaintiffs an opportunity to submit additional proof that the scientific testimony they proffer was "derived by the scientific method." Daubert, however, establishes two prongs to the Rule 702 admissibility inquiry. We therefore consider whether the testimony satisfies the second prong of Rule 702: Would plaintiffs’ proffered scientific evidence "assist the trier of fact to . . . determine a fact in issue"? Fed. R. Evid. 702.

C. NO VISIBLE MEANS OF SUPPORT

In elucidating the second requirement of Rule 702, Daubert stressed the importance of the "fit" between the testimony and an issue in the case: "Rule 702’s ‘helpfulness’ standard requires a valid scientific connection to the pertinent inquiry as a precondition to admissibility." Here, the pertinent inquiry is causation. In assessing whether the proffered expert testimony "will assist the trier of fact" in resolving this issue, we must look to the governing substantive standard, which in this case is supplied by California tort law.

Plantiffs do not attempt to show causation directly; instead, they rely on experts who present circumstantial proof of causation. Plaintiffs’ experts testify that Bendectin is a teratogen because it causes birth defects when it is tested on animals, because it is similar in chemical structure to other suspected teratogens, and because statistical studies show that Bendectin use increases the risk of birth defects. Modern tort law permits such proof, but plaintiffs must nevertheless carry their traditional burden; they must prove that their injuries were the result of the accused cause and not some independent factor. In the case of birth defects, carrying this burden is made more difficult because we know that some defects—including limb reduction defects—occur even when expectant mothers do not take Bendectin, and that most birth defects occur for no known reason.

California tort law requires plaintiffs to show not merely that Bendectin increased the likelihood of injury, but that it more likely than not caused their injuries. See Jones v. Ortho Pharmaceutical Corp., 163 Cal. App. 3d 396, 403, 209 Cal. Rptr. 456 (1985). In terms of statistical proof, this means that plaintiffs must establish not just that their mothers’ ingestion of Bendectin increased somewhat the likelihood of birth defects, but that it more than doubled it—only then can it be said that Bendectin is more likely than not the source of their injury. Because the background rate of limb reduction defects is one per thousand births, plaintiffs must show that among children of mothers who took Bendectin the incidence of such defects was more than two per thousand.

None of plaintiffs’ epidemiological experts claims that ingestion of Bendectin during pregnancy more than doubles the risk of birth defects. To evaluate the relationship between Bendectin and limb reduction defects, an epidemiologist would take a sample of the population and compare the frequency of birth defects in children whose mothers took Bendectin with the frequency of defects in children whose mothers did not. The ratio derived from this comparison would be an estimate of the "relative risk" associated with Bendectin. See generally Joseph L. Fleiss, Statistical Methods for Rates and Proportions (2d ed. 1981). For an epidemiological study to show causation under a preponderance standard, "the relative risk of limb reduction defects arising from the epidemiological data . . . will, at a minimum, have to exceed ‘2’." That is, the study must show that children whose mothers took Bendectin are more than twice as likely to develop limb reduction birth defects as children whose mothers did not. While plaintiffs’ epidemiologists make vague assertions that there is a statistically significant relationship between Bendectin and birth defects, none states that the relative risk is greater than two. These studies thus would not be helpful, and indeed would only serve to confuse the jury, if offered to prove rather than refute causation. A relative risk of less than two may suggest teratogenicity, but it actually tends to disprove legal causation, as it shows that Bendectin does not double the likelihood of birth defects.

With the exception of Dr. Palmer, whose testimony is inadmissible under the first prong of the Rule 702 analysis, the remaining experts proffered by plaintiffs were equally unprepared to testify that Bendectin caused plaintiffs’ injuries; they were willing to testify only that Bendectin is "capable of causing" birth defects. Plaintiffs argue "these scientists use the words ‘capable of causing’ meaning that it does cause. This is an ambiguity of language. . . . If something is capable of causing damage in humans, it does." But what plaintiffs must prove is not that Bendectin causes some birth defects, but that it caused their birth defects. To show this, plaintiffs’ experts would have had to testify either that Bendectin actually caused plaintiffs’ injuries (which they could not say) or that Bendectin more than doubled the likelihood of limb reduction birth defects (which they did not say).

As the district court properly found below, "the strongest inference to be drawn for plaintiffs based on the epidemiological evidence is that Bendectin could possibly have caused plaintiffs’ injuries." The same is true of the other testimony derived from animal studies and chemical structure analyses—these experts "testify to a possibility rather than a probability." Plaintiffs do not quantify this possibility, or otherwise indicate how their conclusions about causation should be weighted, even though the substantive legal standard has always required proof of causation by a preponderance of the evidence. Unlike these experts’ explanation of their methodology, this is not a shortcoming that could be corrected on remand; plaintiffs’ experts could augment their affidavits with independent proof that their methods were sound, but to augment the substantive testimony as to causation would require the experts to change their conclusions altogether. Any such tailoring of the experts’ conclusions would, at this stage of the proceedings, fatally undermine any attempt to show that these findings were "derived by the scientific method." Plaintiffs’ experts must, therefore, stand by the conclusions they originally proffered, rendering their testimony inadmissible under the second prong of Fed. R. Evid. 702.

Conclusion

The district court’s grant of summary judgment is affirmed.

HEARSAY

FRE 801. Definitions

The following definitions apply under this article:

(a) Statement.

A "statement" is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion.

(b) Declarant.

A "declarant" is a person who makes a statement.

(c) Hearsay.

"Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

(d) Statements which are not hearsay.

A statement is not hearsay if--

(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with the declarant's testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or (B) consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive, or (C) one of identification of a person made after perceiving the person; or

(2)Admission by party-opponent. The statement is offered against a party and is

(A) the party's own statement, in either an individual or a representative capacity or

(B) a statement of which the party has manifested an adoption or belief in its truth, or

(C) a statement by a person authorized by the party to make a statement concerning the subject, or

(D) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or

FRE 802. Hearsay Rule

Hearsay is not admissible except as provided by these rules or by other rules prescribed by the Supreme Court pursuant to statutory authority or by Act of Congress.

Murder in the Ajax Building

Time: June 1, 11:55 a.m. Place: room 1601 on the sixteenth floor of the Ajax Building. Room 1601 is a one-room office with one window. Outside the window on the ledge is a pigeon's nest containing freshly laid pigeon eggs. Several feet to the left of the window in room 1601 are two desks with typewriters and swivel chairs. There is also a copying machine several feet to the right of the window. At 11:59 a.m. there are four people in room 1601: Agnes, Belle, Claire, and David. Agnes and Belle are sitting in the swivel chairs at the two desks. Claire is standing on a chair at point C, leaning out the open window. David is at the copying machine. A schematic drawing of the room scene looks like this:

At 12:01 p.m. Claire's body is in the street. There are three possible explanations for Claire's change in position: (1) There was an accident; (2) she committed suicide; or (3) a homicide has occurred. The state decides that the third explanation is the most likely and indicts and tries David for Claire's murder.

(1) At David's trial the first witness for the prosecution is Scalpel, the coroner. Scalpel testifies that she took possession of Claire's body shortly after arriving on the scene. Scalpel then describes the condition of the body, including the results of an autopsy. Among other things, the autopsy revealed that Claire was not pregnant at the time of her death.

(2) The second witness for the prosecution is Nosey. Nosey testifies that she works in room 1500 in the Babbo Building, which is directly across the street from the Ajax Building. Room 1500 is on the fifteenth floor of the Babbo Building, which puts it slightly below room 1601 of the Ajax Building. Nosey testifies that from room 1500 of the Babbo Building she has a good view of the window of room 1601 of the Ajax Building. Nosey further testifies that shortly before noon on June 1 she had her back to the window of room 1500 of the Babbo Building. She heard a scream, turned, and saw a body falling. She looked up at the window and saw what appeared to be the face of a man at the window of room 1601 of the Ajax Building. If you were defense counsel in this case, what type of questions would you want to ask Nosey on cross-examination?

(3) The prosecution offers as People's Exhibit A a document found face up on the copying machine in room 1601 immediately after Claire's fall. The document is identified and authenticated as being in Claire's handwriting. It states:

David, I will never give in to your pressure. Even though you may be the father of my unborn child, I will not be forced into an abortion that I don't want. I will have the baby and sue you for support.

Claire

David objects to the admission of the exhibit. What ruling and why? Is Exhibit A hearsay? If it is hearsay, should it be admitted anyhow? If it is not hearsay, should it nonetheless be excluded?

Speaking Out

Action for damages to P's child, C, which allegedly occurred when D struck C, causing C to suffer permanent paralysis of her vocal chords. D's answer is a general denial. In the second week of trial, D offers W to testify that the day before he heard C say, "I can speak." P objects. What ruling and why? What if W proposes to testify that he heard C say, "Don't step on a crack or you'll break your mother's back"?

Captain Cook and Davey Jones

Action for loss of P's goods when D Shipping Company's ship went down in calm waters off Liverpool. P alleges that D's ship was not seaworthy. D generally denies. At trial, D offers evidence that Captain Cook, a sea captain with 30 years' experience, inspected every part of its ship before setting sail on it with his own family on board. P objects. What ruling and why? Is this evidence hearsay? If so, should it be admitted anyhow? If not, should it nonetheless be excluded?

Hot Pursuit?

At 11:30 p.m. Dr. and Mrs. David Alberstrom returned to their suburban Washington home from a night at the opera. As Dr. Alberstrom entered the living room, he was attacked by a knife-wielding man coming from the dining room. Dr. Alberstrom and the stranger struggled for some minutes, but the intruder escaped, leaving the doctor wounded on the floor. Mrs. Alberstrom rushed to help her husband. She noticed that he had been stabbed and was bleeding. They got into their car to go to the hospital, with the doctor behind the steering wheel. Proceeding down the country road leading from the Alberstrom house, the doctor noticed a man running along the side of the road. As the car drew even with the man, it swerved sharply to the right, striking the man and coming to rest in a ditch at the side of the road. Dr. Alberstrom was slumped over the wheel unconscious. An ambulance called to the scene took both Dr. Alberstrom and the injured pedestrian to the hospital. Dr. Alberstrom died of his knife wounds without regaining consciousness. The pedestrian recovered from his injuries and was subsequently charged with attempted robbery and the murder of Dr. Alberstrom.

At defendant's trial the prosecution offers Mrs. Alberstrom's testimony to the above on the issue of the identity of the knife-wielding intruder. Defendant objects. What ruling and why? What result if Mrs. Alberstrom's proffered testimony included Dr. Alberstrom's exclaiming "That's him!" just before the car swerved into the defendant?

The Stolen BMW

P drives her new BMW home from the BMW dealer on June 1. She parks it in front of her house with the motor running while she goes in to pick up her running shoes. P notices some acquaintances--W, D, and T--standing on the sidewalk. P shouts to them to keep an eye on her new car. When P comes out of her house a minute later, the BMW is gone and so are D and T. P asks W where the car is. W says, "D took it."

P sues D for conversion of the BMW. D's answer generally denies P's allegations. At trial, P calls W and asks him if he saw who took the BMW. W says, "Yes, T took it." P then questions W about his June 1 statement to P that D took the BMW. D's objection is overruled. W denies making the statement. P takes the stand and over D's objection testifies to W's June 1 statement. P rests her case. D moves for a nonsuit. If D's motion is granted, what is the rationale for overruling his objections to the evidence but granting his motion? Compare Rules 607, 613, and 801(d)(1).

He Who Laughs Last ...

City A taxes real property on the basis of 100 percent of value. The city tax collector appraises Cheat's property at $100,000 and taxes it accordingly. Cheat files an abatement request stating that his property is worth only $50,000. Later, the state condemns Cheat's property under its power of eminent domain. The value of the property is disputed. The state claims the property is worth $50,000; Cheat claims it is worth $100,000.

(1) At the trial of this issue the state offers Cheat's abatement request filing. Cheat objects. What ruling and why? If admitted, what is the reasoning on which the decision rests?

(2) Suppose the state claims the value of the property is $30,000. Cheat offers the abatement request filing. The state objects. What ruling and why?

(3) At trial Cheat offers the city tax assessment. The state objects. What ruling and why?

P v. Greed Power and Light Company

On June 1st at 4 a.m., following two days of heavy rain, a flood wiped out the housing development at Rancho Mudslide. The cause of the flood was the collapse of the dam five miles upstream from the development. The dam was built and owned by the Greed Power & Light Company. P, individually and on behalf of the class of residents of Rancho Mudslide, has sued Greed for $5 million in actual property damages and $50 million in punitive damages, alleging that Greed was negligent in building and maintaining the dam.

The following evidentiary problems came to light at the pretrial conference. How would you resolve each of them?

(1) P proposes to call Meyer, the president of the Rancho Mudslide Homeowner's Association, to testify that on May 25 he was at the dam site and that an engineer who had been sent to repair a sluice said to him, "This repair won't do much good if there is a heavy rain. The whole system is bad."

(2) P proposes to call Harry, the engineer's husband, to testify that his wife told him when she came home from work on May 25 that "the repairs she had made would not do any good if there was a heavy rain because the whole system was bad."

(3) P proposes to call Clark Kent, a reporter for the Mudslide Muckraker, to testify that, upon learning of the catastrophe, he called up Rockeyfellow, the president of Greed, at 5 a.m. on June 1 for a reaction. Kent will testify that upon hearing what had happened, Rockeyfellow said, "Oh my God, the sluice system must have failed. We were negligent in maintaining it."

(4) P proposes to call Stoole, a Greed employee, to testify that a report by the Rancid Corporation, an outside consulting firm, prepared for the company ten years ago when the decision to build the dam was being made, states, "The soil at the suggested dam site is too porous. In case of heavy rain, there would be danger of collapse and flooding of the land downstream."

(5) D proposes to call Harbinger, its vice-president for public relations, to testify that eight years ago he sent a letter to all owners of land in the then-proposed Rancho Mudslide development, informing them that the proposed development lay in the path of any water discharge from the dam and that a property owner would be foolish and negligent to build a residence in that location.

FRE 803. Hearsay Exceptions; Availability of Declarant Immaterial

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

(1) Present sense impression. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.

(2) Excited utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

(3) Then existing mental, emotional, or physical condition. A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will.

(4) Statements for purposes of medical diagnosis or treatment. Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.

(5) Recorded recollection. A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness' memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.

(6) Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11), Rule 902(12), or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term "business" as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

(8) Public records and reports. Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, or (C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.

(16) Statements in ancient documents. Statements in a document in existence twenty years or more the authenticity of which is established.

(18) Learned treatises. To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits.

Stagger P

Action for damages allegedly sustained when P was struck by a car driven by D. Defense: contributory negligence. At trial, D calls W to testify that ten minutes before the accident W was at a bar with P and Q, that P got up to leave, and that Q said to W, "Look at P stagger. Man, is he smashed." P objects. What ruling and why? What factors militate for and against admission of this evidence?

Strong Feelings and Future Plans

(1) Action for alienation of affections of P's wife, A. At trial, P calls W, a former friend of A, to testify that A told her, "After one night with D, I realized how much I despise P." D objects. What ruling and why? If testimony is admitted, what should D do?

(2) Worker's compensation action by W seeking recovery against D for the death of her husband, H. The issue is whether the accident in which H perished occurred during the course of H's employment. At trial, W offers evidence that shortly before going to the airport H made several statements that he had to go away on business. D objects. What ruling and why?

What difference do you see between these two problems in terms of the purposes for which the evidence is offered?

Negligent Entrustment

Action against D Warehouse Company for negligence. In June 1981 Mrs. P prepared to sell her Cambridge house and move to Palo Alto. She decided to sell some of her household furnishings, take some with her, and store the rest. Mrs. P's maid, M, is put in charge of selecting things to be sold at a garage sale and packing what is not sold for storage. After the garage sale M packs the unsold items in sealed boxes and makes a handwritten list of the contents of each box. The boxes are then delivered to the D Warehouse Company for storage. Ten years later Mrs. P returns to Cambridge, claims the boxes, and is told they were destroyed by termites. At trial the only issue is the contents of the boxes. Compare these methods of proof:

(1) Mrs. P takes the stand and testifies to her 1981 instructions to M, her employee, and authenticates the handwriting on the lists as M's. The lists are then offered in evidence. D objects.

(2) M takes the stand and testifies to the instructions she received in 1981 from Mrs. P, her employer, and how she carried out those instructions. When asked to specify the contents of the boxes, however, M says that she cannot remember what was put into the boxes. P's attorney then shows M the lists. M studies the lists, testifies that she now remembers the contents of the boxes, and proceeds to specify the contents. D objects and moves to strike.

(3) The same as in (2) except that M testifies that even after looking at the lists she cannot remember what she put into the boxes. However, she does remember making the lists when she did the packing and that they were made accurately. The lists are then offered in evidence. D objects.

(4) Suppose that instead of M's doing all the packing alone, Mrs. P helped her by packing each item in the boxes, stating orally what each item was and in which box it was put while M recorded the items on the lists. However, M, being fully occupied with making the lists, did not observe Mrs. P pack the items. At trial, Mrs. P and M testify to the above. Mrs. P cannot remember the items packed but does remember making the oral statements, which were accurate. M cannot remember what Mrs. P said but does remember taking down her statements and that her notes were accurate. M identifies the lists, and P's attorney then reads the lists. D objects.

Window Washer Witnesses

Action by the P Window Washing Company against the D Tower Company for money allegedly due P for washing the windows on D's 100-story skyscraper, the D Tower. D denies it owes P anything and disputes that the work was ever done.

As P's attorney you have found out that for a large tower like the D Tower, P assigns a window washing foreman to each floor. Several window washers, grade one, and window washers' assistants, grade two, are assigned to each foreman. As the washers and assistants wash a window, they "tick off" a square representing the washed window on a form that depicts the window arrangement for the floor on which they are working. At the end of the day the foreman collects the forms and delivers them to the area supervisor. There is usually an area supervisor for every ten floors. The area supervisors tally the number of windows washed and report this information to P's building manager. The manager turns this information over to P's bookkeeping office, where the information is fed into P's data processing equipment. For billing purposes P's computer provides a biweekly printout of the number of windows washed during that period.

You want to prove that P Window Washing Company washed 97,873 windows (the total shown by the computer printouts) on the D Tower during the period in question. How do you go about it? What foundational and procedural considerations are there? Try preparing direct examination(s) to get the proof in.

Compare Rule 803(5) and (6). How does the exception for business records relate to the exception for recorded recollection? What are the differences between the various formulations of the business records exception to the hearsay rule? Why is an exception made for such records in the first place? Do these reasons suggest limits to the exception based on type of business or record? Should the routineness of the report or the motivations of the reporter affect the admissibility of such records?

Hospital Reports

D hit P, a small boy, when P ran out into the street. D picked up P and rushed him to A Hospital. In a suit for negligence by P against D arising from the accident, P's lawyer calls the custodian of records of A Hospital and through him seeks to introduce a hospital report dated the day of the accident, reading as follows:

D brought P to the emergency room stating that D had struck P with his car when P ran into the street. D stated that he tried to stop in time but his brakes were bad and he could not.

D's lawyer objects. What ruling and why?

FRE 804. Hearsay Exceptions; Declarant Unavailable

(a) Definition of unavailability.

"Unavailability as a witness" includes situations in which the declarant--

(1) is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant's statement; or

(2) persists in refusing to testify concerning the subject matter of the declarant's statement despite an order of the court to do so; or

(3) testifies to a lack of memory of the subject matter of the declarant's statement; or

(4) is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or

(5) is absent from the hearing and the proponent of a statement has been unable to procure the declarant's attendance (or in the case of a hearsay exception under subdivision (b)(2), (3), or (4), the declarant's attendance or testimony) by process or other reasonable means.

A declarant is not unavailable as a witness if exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of a statement for the purpose of preventing the witness from attending or testifying.

(b) Hearsay exceptions.

The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:

(1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.

(2) Statement under belief of impending death. In a prosecution for homicide or in a civil action or proceeding, a statement made by a declarant while believing that the declarant's death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death.

(3) Statement against interest. A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

(4) Statement of personal or family history. (A) A statement concerning the declarant's own birth, adoption, marriage, divorce, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history, even though declarant had no means of acquiring personal knowledge of the matter stated; or (B) a statement concerning the foregoing matters, and death also, of another person, if the declarant was related to the other by blood, adoption, or marriage or was so intimately associated with the other's family as to be likely to have accurate information concerning the matter declared.

(5) [Other exceptions.][Transferred to Rule 807]

(6) Forfeiture by wrongdoing. A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.

"Forgetful" Witness

Charge: conspiracy to commit mail fraud. D was indicted with two alleged co-conspirators who pled guilty before defendant's trial. W, one of these co-conspirators, was called at D's trial by the prosecution to testify to the details of D's participation in the alleged mail fraud. But W testified that he could not remember these details. At this point the prosecution sought to introduce W's grand jury testimony on these points. D objected. On voir dire W states that he does not remember making the statements attributed to him before the grand jury nor does he now remember the details of the alleged mail fraud.

(1) Are W's prior statements before the grand jury "inconsistent"?

(2) Does testimony before the grand jury fall within 801(d)(1)(A)? Should it? Compare the limitations on the use of former testimony in Rule 804(b)(1). What does "other proceeding," as used in Rule 801(d)(1)(A), include?

(3) Would it make any difference to the admissibility of W's grand jury testimony if W were present in the courtroom but was not called by the prosecution to testify? Should it?

(4) Is W "subject to cross-examination" concerning the grand jury testimony?

(5) Have D's sixth amendment rights been violated?

(6) Would your analysis of any of the above questions be any different if instead of grand jury testimony the prosecution sought to introduce in this situation:

(a) W's testimony at a preliminary hearing at which he was actually cross-examined by D's attorney; or

(b) W's statements to the arresting officer while in custody prior to indictment?

Dying Declarations

Charge: homicide, first-degree. M.O.: striking V on the head with a tire iron at noon on June 1. D and E were the only two present at the scene of the crime. One of them did it. At 12:55 V is dying and knows it. Before he dies, V says that it was D who struck him. At noon on June 2, E has a heart attack. At 12:55, E is dying and knows it. Before he dies E says that it was he who struck V on June 1. At trial the D.A. offers proof of V's statement, and D offers proof of E's statement. What rulings and why to timely objections to both offers?

"Speak Up, Please"

Charge: murder of V. Dr. Jones is called to the stand by the prosecution. At D's request the judge first listens to Dr. Jones's testimony out of the presence of the jury. Jones states that just before V died, Jones said to her, "You are very badly wounded," and that shortly thereafter V mumbled, "D did it." The judge thinks that V probably knew she was dying but recognized that reasonable people might differ on that question. The judge also thinks that V probably did not say, "D did it," but rather mumbled something else which the doctor misunderstood, but the judge recognizes that reasonable persons might also differ on that. Defense counsel objects to Jones's being allowed to testify before the jury. What ruling and why?

FRE 805. Hearsay Within Hearsay

Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules.

FRE 806. Attacking and Supporting Credibility of Declarant

When a hearsay statement, or a statement defined in Rule 801(d)(2)(C), (D), or (E), has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, inconsistent with the declarant's hearsay statement, is not subject to any requirement that the declarant may have been afforded an opportunity to deny or explain. If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine the declarant on the statement as if under cross-examination.

FRE 807. Residual Exception

A statement not specifically covered by Rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent's intention to offer the statement and the particulars of it, including the name and address of the declarant.

CONFRONTATION

The Treason Trial of Sir Walter Raleigh

In a celebrated trial in 1603 Sir Walter Raleigh was accused of conspiracy to commit treason against the Crown by attempting to establish Arabella Stuart as queen of England. At his trial the evidence consisted primarily of a sworn "confession" by Lord Cobham, Raleigh's alleged co-conspirator, before the Privy Council and a letter by Cobham. Raleigh asserted that Cobham had recanted his confession and protested its introduction:

"But it is strange to see how you press me still with my Lord Cobham, and yet will not produce him; ... [H]e is in the house hard by, and may soon be brought hither; let him be produced, and if he will yet accuse me or avow this confession of his, it shall convict me and ease you of further proof."

Raleigh's Trial, 2 How. St. Tr. 16 (1603); 1 Jardine's Crim. Trials 418 (1832). The prosecution responded not by producing Cobham but by calling a boat pilot named Dyer, who testified that while in Lisbon a Portuguese gentleman told him, "Your king [James] shall never be crowned for Don Cobham and Don Raleigh will cut his throat before he come to be crowned."

Raleigh protested this evidence on the ground that, "This is the saying of some wild Jesuit or beggarly priest; but what proof is it against me?"

The prosecutor, Lord Coke, responded, "It must perforce arise out of some preceding intelligence and shews that your treason had wings."

On this evidence Raleigh was convicted and executed. See 1 J. Stephen, A History of the Criminal Law of England 333-336 (1883); 9 Holdsworth. A History of English Law 216-217, 226-228 (1926); J.G. Phillimore, History and Principles of the Law of Evidence 157 (1850).

Outrage at the injustice done to Raleigh contributed to the development of the hearsay rules and the constitutional rights of confrontation and compulsory process. One of the puzzles of this subject is how hearsay, confrontation, and compulsory process interrelate.

The Sixth Amendment

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

Mattox v. United States

[The first Confrontation Clause case that came to the Supreme Court was Mattox v. United States, a retrial of a defendant convicted of murder on federal land. The conviction was based on the testimony of two eyewitnesses. Both the witnesses were present and were fully examined and cross-examined at the first trial. The defendants, however, successfully appealed (on grounds unrelated to confrontation problems) and obtained a new trial. By the time of the second trial, the two eyewitnesses were dead. Without the live witnesses at the second trial, the prosecutor introduced transcripts of testimony from the first trial.]

Mr. Justice BROWN delivered the opinion of the court.

Upon the [second] trial it was shown by the government that two of its witnesses on the former trial . . . had since died, whereupon a transcribed copy of the reporter's stenographic notes of their testimony upon such trial, supported by his testimony that it was correct, was admitted to be read in evidence, and constituted the strongest proof against the accused. Both these witnesses were present and were fully examined and cross-examined on the former trial. It is claimed, however, that the constitutional provision that the accused shall "be confronted with the witnesses against him" was infringed, by permitting the testimony of witnesses sworn upon the former trial to be read against him. No question is made that this may not be done in a civil case, but it is insisted that the reasons of convenience and necessity which excuse a departure from the ordinary course of procedure in civil cases cannot override the constitutional provision in question. . . .

The primary object of the constitutional provision in question was to prevent depositions or ex parte affidavits, such as were sometimes admitted in civil cases, being used against the prisoner in lieu of a personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief. There is doubtless reason for saying that the accused should never lose the benefit of any of these safeguards even by the death of the witness; and that, if notes of his testimony are permitted to be read, he is deprived of the advantage of that personal presence of the witness before the jury which the law has designed for his protection. But general rules of law of this kind, however beneficent in their operation and valuable to the accused, must occasionally give way to considerations of public policy and the necessities of the case. To say that a criminal, after having once been convicted by the testimony of a certain witness, should go scot free simply because death has closed the mouth of that witness, would be carrying his constitutional protection to an unwarrantable extent. The law in its wisdom declares that the rights of the public shall not be wholly sacrificed in order that an incidental benefit may be preserved to the accused.

We are bound to interpret the Constitution in the light of the law as it existed at the time it was adopted, not as reaching out for new guaranties of the rights of the citizen, but as securing to every individual such as he already possessed as a British subject--such as his ancestors had inherited and defended since the days of Magna Charta. Many of its provisions in the nature of a Bill of Rights are subject to exceptions, recognized long before the adoption of the Constitution, and not interfering at all with its spirit. Such exceptions were obviously intended to be respected. A technical adherence to the letter of a constitutional provision may occasionally be carried farther than is necessary to the just protection of the accused, and farther than the safety of the public will warrant. For instance, there could be nothing more directly contrary to the letter of the provision in question than the admission of dying declarations. They are rarely made in the presence of the accused; they are made without any opportunity for examination or cross-examination; nor is the witness brought face to face with the jury; yet from time immemorial they have been treated as competent testimony, and no one would have the hardihood at this day to question their admissibility. They are admitted not in conformity with any general rule regarding the admission of testimony, but as an exception to such rules, simply from the necessities of the case, and to prevent a manifest failure of justice. As was said by the Chief Justice when this case was here upon the first writ of error, (146 U.S. 140, 152), the sense of impending death is presumed to remove all temptation to falsehood, and to enforce as strict an adherence to the truth as would the obligation of an oath. If such declarations are admitted, because made by a person then dead, under circumstances which give his statements the same weight as if made under oath, there is equal if not greater reason for admitting testimony of his statements which were made under oath. . . .

The substance of the constitutional protection is preserved to the prisoner in the advantage he has once had of seeing the witness face to face, and of subjecting him to the ordeal of a cross-examination. . . . No further significant development of Confrontation Clause theory occurred until 1965 when the Supreme Court incorporated the Clause against the states in Pointer v. Texas. This was part of Justice Black's ongoing incorporation campaign and was the focus of his attention in the opinion he wrote in Pointer. He interprets the Confrontation Clause as a powerful protector of the defendant's right to cross-examine. He pays no attention to how his approach to the Confrontation Clause affects the hearsay rule and its myriad exceptions.

Pointer v. Texas

380 U.S. 400 (1965)

Mr. Justice BLACK delivered the opinion of the Court. . . .

The petitioner Pointer and one Dillard were arrested in Texas and taken before a state judge for a preliminary hearing (in Texas called the "examining trial") on a charge of having robbed Kenneth W. Phillips of $375 "by assault, or violence, or by putting in fear of life or bodily injury," in violation of Texas Penal Code Art. 1408. At this hearing an Assistant District Attorney conducted the prosecution and examined witnesses, but neither of the defendants, both of whom were laymen, had a lawyer. Phillips as chief witness for the State gave his version of the alleged robbery in detail, identifying petitioner as the man who had robbed him at gunpoint. Apparently Dillard tried to cross-examine Phillips but Pointer did not, although Pointer was said to have tried to cross-examine some other witnesses at the hearing. Petitioner was subsequently indicted on a charge of having committed the robbery. Some time before the trial was held, Phillips moved to California. After putting in evidence to show that Phillips had moved and did not intend to return to Texas, the State at the trial offered the transcript of Phillips' testimony given at the preliminary hearing as evidence against petitioner. Petitioner's counsel immediately objected to introduction of the transcript, stating, "Your Honor, we will object to that, as it is a denial of the confrontment of the witnesses against the Defendant." Similar objections were repeatedly made by petitioner's counsel but were overruled by the trial judge, apparently in part because, as the judge viewed it, petitioner had been present at the preliminary hearing and therefore had been "accorded the opportunity of cross examining the witnesses there against him." The Texas Court of Criminal Appeals, the highest state court to which the case could be taken, affirmed petitioner's conviction, rejecting his contention that use of the transcript to convict him denied him rights guaranteed by the Sixth and Fourteenth Amendments. . . .

The Sixth Amendment is a part of what is called our Bill of Rights. In Gideon v. Wainright, [372 U.S. 335 (1963),] in which this Court held that the Sixth Amendment's right to the assistance of counsel is obligatory upon the States, we did so on the ground that "a provision of the Bill of Rights which is 'fundamental and essential to a fair trial' is made obligatory upon the States by the Fourteenth Amendment." 372 U.S., at 342.... We hold today that the Sixth Amendment's right of an accused to confront the witnesses against him is likewise a fundamental right and is made obligatory on the States by the Fourteenth Amendment.

It cannot seriously be doubted at this late date that the right of cross-examination is included in the right of an accused in a criminal case to confront the witnesses against him. And probably no one, certainly no one experienced in the trial of lawsuits, would deny the value of cross-examination in exposing falsehood and bringing out the truth in the trial of a criminal case. See, e.g., 5 Wigmore, Evidence §1367 (3d ed. 1940). The fact that this right appears in the Sixth Amendment of our Bill of Rights reflects the belief of the Framers of those liberties and safeguards that confrontation was a fundamental right essential to a fair trial in a criminal prosecution. Moreover, the decisions of this Court and other courts throughout the years have constantly emphasized the necessity for cross-examination as a protection for defendants in criminal cases. . . .

This Court has recognized the admissibility against an accused of dying declarations, Mattox v. United States, 146 U.S. 140, 151, and of testimony of a deceased witness who has testified at a former trial. Mattox v. United States, 156 U.S. 237, 240-244. Nothing we hold here is to the contrary. The case before us would be quite a different one had Phillips' statement been taken at a full-fledged hearing at which petitioner had been represented by counsel who had been given a complete and adequate opportunity to cross-examine. . . . Because the transcript of Phillips' statement offered against petitioner at his trial had not been taken at a time and under circumstances affording petitioner through counsel an adequate opportunity to cross-examine Phillips, its introduction in a federal court in a criminal case against Pointer would have amounted to denial of the privilege of confrontation guaranteed by the Sixth Amendment. Since we hold that the right of an accused to be confronted with the witnesses against him must be determined by the same standards whether the right is denied in a federal or state proceeding, it follows that use of the transcript to convict petitioner denied him a constitutional right, and that his conviction must be reversed.

Reversed and remanded.

Crawford v. Washington

124 S. Ct. 1354 (2004)

Justice Scalia delivered the opinion of the Court.

Petitioner Michael Crawford stabbed a man who allegedly tried to rape his wife, Sylvia. At his trial, the State played for the jury Sylvia's tape-recorded statement to the police describing the stabbing, even though he had no opportunity for cross-examination. The Washington Supreme Court upheld petitioner's conviction after determining that Sylvia's statement was reliable. The question presented is whether this procedure complied with the Sixth Amendment's guarantee that, "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him."

On August 5, 1999, Kenneth Lee was stabbed at his apartment. Police arrested petitioner later that night. After giving petitioner and his wife Miranda warnings, detectives interrogated each of them twice. Petitioner eventually confessed that he and Sylvia had gone in search of Lee because he was upset over an earlier incident in which Lee had tried to rape her. The two had found Lee at his apartment, and a fight ensued in which Lee was stabbed in the torso and petitioner's hand was cut. Petitioner gave the following account of the fight:

"Q. Okay. Did you ever see anything in [Lee's] hands?

"A. I think so, but I'm not positive.

"Q. Okay, when you think so, what do you mean by that?

"A. I coulda swore I seen him goin' for somethin' before, right before everything happened. He was like reachin', fiddlin' around down here and stuff . . . and I just . . . I don't know, I think, this is just a possibility, but I think, I think that he pulled somethin' out and I grabbed for it and that's how I got cut . . . but I'm not positive. I, I, my mind goes blank when things like this happen. I mean, I just, I remember things wrong, I remember things that just doesn't, don't make sense to me later." App. 155 (punctuation added).

Sylvia generally corroborated petitioner's story about the events leading up to the fight, but her account of the fight itself was arguably different--particularly with respect to whether Lee had drawn a weapon before petitioner assaulted him:

"Q. Did Kenny do anything to fight back from this assault?

"A. (pausing) I know he reached into his pocket . . . or somethin' . . . I don't know what.

"Q. After he was stabbed?

"A. He saw Michael coming up. He lifted his hand . . . his chest open, he might [have] went to go strike his hand out or something and then (inaudible).

"Q. Okay, you, you gotta speak up.

"A. Okay, he lifted his hand over his head maybe to strike Michael's hand down or something and then he put his hands in his . . . put his right hand in his right pocket . . . took a step back . . . Michael proceeded to stab him . . . then his hands were like . . . how do you explain this . . . open arms . . . with his hands open and he fell down . . . and we ran (describing subject holding hands open, palms toward assailant).

"Q. Okay, when he's standing there with his open hands, you're talking about Kenny, correct?

"A. Yeah, after, after the fact, yes.

"Q. Did you see anything in his hands at that point?

"A. (pausing) um um (no)." Id., at 137 (punctuation added).

The State charged petitioner with assault and attempted murder. At trial, he claimed self-defense. Sylvia did not testify because of the state marital privilege, which generally bars a spouse from testifying without the other spouse's consent. See Wash. Rev. Code § 5.60.060(1) (1994). In Washington, this privilege does not extend to a spouse's out-of-court statements admissible under a hearsay exception, see State v. Burden, 120 Wn. 2d 371, 377, 841 P.2d 758, 761 (1992), so the State sought to introduce Sylvia's tape-recorded statements to the police as evidence that the stabbing was not in self-defense. Noting that Sylvia had admitted she led petitioner to Lee's apartment and thus had facilitated the assault, the State invoked the hearsay exception for statements against penal interest, Wash. Rule Evid. 804(b)(3) (2003)....

The Sixth Amendment's Confrontation Clause provides that, "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." We have held that this bedrock procedural guarantee applies to both federal and state prosecutions. Pointer v. Texas, 380 U.S. 400, 406, 13 L. Ed. 2d 923, 85 S. Ct. 1065 (1965). ...

[H]istory supports two inferences about the meaning of the Sixth Amendment. First, the principal evil at which the Confrontation Clause was directed was the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused. It was these practices that the Crown deployed in notorious treason cases like Raleigh's; that the Marian statutes invited; that English law's assertion of a right to confrontation was meant to prohibit; and that the founding-era rhetoric decried. The Sixth Amendment must be interpreted with this focus in mind.

Accordingly, we once again reject the view that the Confrontation Clause applies of its own force only to in-court testimony, and that its application to out-of-court statements introduced at trial depends upon "the law of Evidence for the time being." 3 Wigmore § 1397, at 101; ... Leaving the regulation of out-of-court statements to the law of evidence would render the Confrontation Clause powerless to prevent even the most flagrant inquisitorial practices. Raleigh was, after all, perfectly free to confront those who read Cobham's confession in court.

This focus also suggests that not all hearsay implicates the Sixth Amendment's core concerns. An off-hand, overheard remark might be unreliable evidence and thus a good candidate for exclusion under hearsay rules, but it bears little resemblance to the civil-law abuses the Confrontation Clause targeted. On the other hand, ex parte examinations might sometimes be admissible under modern hearsay rules, but the Framers certainly would not have condoned them.

The text of the Confrontation Clause reflects this focus. It applies to "witnesses" against the accused--in other words, those who "bear testimony." 1 N. Webster, An American Dictionary of the English Language (1828). "Testimony," in turn, is typically "[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact." Ibid. An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not. The constitutional text, like the history underlying the common-law right of confrontation, thus reflects an especially acute concern with a specific type of out-of-court statement.

Various formulations of this core class of "testimonial" statements exist: "ex parte in-court testimony or its functional equivalent--that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially," Brief for Petitioner 23; "extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions," White v. Illinois, 502 U.S. 346, 365, 116 L. Ed. 2d 848, 112 S. Ct. 736 (1992) (Thomas, J., joined by Scalia, J., concurring in part and concurring in judgment); "statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial," Brief for National Association of Criminal Defense Lawyers et al. as Amici Curiae 3. These formulations all share a common nucleus and then define the Clause's coverage at various levels of abstraction around it. Regardless of the precise articulation, some statements qualify under any definition--for example, ex parte testimony at a preliminary hearing.

Statements taken by police officers in the course of interrogations are also testimonial under even a narrow standard. Police interrogations bear a striking resemblance to examinations by justices of the peace in England. The statements are not sworn testimony, but the absence of oath was not dispositive. Cobham's examination was unsworn, see 1 Jardine, Criminal Trials, at 430, yet Raleigh's trial has long been thought a paradigmatic confrontation violation, see, e.g., Campbell, 30 S.C.L., at 130. ... That interrogators are police officers rather than magistrates does not change the picture either. Justices of the peace conducting examinations under the Marian statutes were not magistrates as we understand that office today, but had an essentially investigative and prosecutorial function. See 1 Stephen, Criminal Law of England, at 221; Langbein, Prosecuting Crime in the Renaissance, at 34-45. England did not have a professional police force until the 19th century, see 1 Stephen, supra, at 194-200, so it is not surprising that other government officers performed the investigative functions now associated primarily with the police. The involvement of government officers in the production of testimonial evidence presents the same risk, whether the officers are police or justices of the peace.

In sum, even if the Sixth Amendment is not solely concerned with testimonial hearsay, that is its primary object, and interrogations by law enforcement officers fall squarely within that class.

The historical record also supports a second proposition: that the Framers would not have allowed admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination. The text of the Sixth Amendment does not suggest any open-ended exceptions from the confrontation requirement to be developed by the courts. Rather, the "right . . . to be confronted with the witnesses against him," Amdt. 6, is most naturally read as a reference to the right of confrontation at common law, admitting only those exceptions established at the time of the founding. See Mattox v. United States, 156 U.S. 237, 243, 39 L. Ed. 409, 15 S. Ct. 337 (1895)....

We do not read the historical sources to say that a prior opportunity to cross-examine was merely a sufficient, rather than a necessary, condition for admissibility of testimonial statements. They suggest that this requirement was dispositive, and not merely one of several ways to establish reliability....

Our case law has been largely consistent with these two principles. Our leading early decision, for example, involved a deceased witness's prior trial testimony. Mattox v. United States, 156 U.S. 237, 39 L. Ed. 409, 15 S. Ct. 337 (1895). In allowing the statement to be admitted, we relied on the fact that the defendant had had, at the first trial, an adequate opportunity to confront the witness: "The substance of the constitutional protection is preserved to the prisoner in the advantage he has once had of seeing the witness face to face, and of subjecting him to the ordeal of a cross-examination. This, the law says, he shall under no circumstances be deprived of . . . ." Id., at 244, 39 L. Ed. 409, 15 S. Ct. 337. Our later cases conform to Mattox's holding that prior trial or preliminary hearing testimony is admissible only if the defendant had an adequate opportunity to cross-examine. … Even our recent cases, in their outcomes, hew closely to the traditional line. Ohio v. Roberts, 448 U.S., at 67-70, 65 L. Ed. 2d 597, 100 S. Ct. 2531, admitted testimony from a preliminary hearing at which the defendant had examined the witness. …

Although the results of our decisions have generally been faithful to the original meaning of the Confrontation Clause, the same cannot be said of our rationales. Roberts conditions the admissibility of all hearsay evidence on whether it falls under a "firmly rooted hearsay exception" or bears "particularized guarantees of trustworthiness." 448 U.S., at 66, 65 L. Ed. 2d 597, 100 S. Ct. 2531. This test departs from the historical principles identified above in two respects. First, it is too broad: It applies the same mode of analysis whether or not the hearsay consists of ex parte testimony. This often results in close constitutional scrutiny in cases that are far removed from the core concerns of the Clause. At the same time, however, the test is too narrow: It admits statements that do consist of ex parte testimony upon a mere finding of reliability. This malleable standard often fails to protect against paradigmatic confrontation violations....

Where testimonial statements are involved, we do not think the Framers meant to leave the Sixth Amendment's protection to the vagaries of the rules of evidence, much less to amorphous notions of "reliability." Certainly none of the authorities discussed above acknowledges any general reliability exception to the common-law rule. Admitting statements deemed reliable by a judge is fundamentally at odds with the right of confrontation. To be sure, the Clause's ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination. The Clause thus reflects a judgment, not only about the desirability of reliable evidence (a point on which there could be little dissent), but about how reliability can best be determined. Cf. 3 Blackstone, Commentaries, at 373 ("This open examination of witnesses . . . is much more conducive to the clearing up of truth"); M. Hale, History and Analysis of the Common Law of England 258 (1713) (adversarial testing "beats and bolts out the Truth much better").

The Roberts test allows a jury to hear evidence, untested by the adversary process, based on a mere judicial determination of reliability. It thus replaces the constitutionally prescribed method of assessing reliability with a wholly foreign one. In this respect, it is very different from exceptions to the Confrontation Clause that make no claim to be a surrogate means of assessing reliability. For example, the rule of forfeiture by wrongdoing (which we accept) extinguishes confrontation claims on essentially equitable grounds; it does not purport to be an alternative means of determining reliability. See Reynolds v. United States, 98 U.S. 145, 158-159, 25 L. Ed. 244 (1879).

The Raleigh trial itself involved the very sorts of reliability determinations that Roberts authorizes. In the face of Raleigh's repeated demands for confrontation, the prosecution responded with many of the arguments a court applying Roberts might invoke today: that Cobham's statements were self-inculpatory, 2 How. St. Tr., at 19, that they were not made in the heat of passion, id., at 14, and that they were not "extracted from [him] upon any hopes or promise of Pardon," id., at 29. It is not plausible that the Framers' only objection to the trial was that Raleigh's judges did not properly weigh these factors before sentencing him to death. Rather, the problem was that the judges refused to allow Raleigh to confront Cobham in court, where he could cross-examine him and try to expose his accusation as a lie.

Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty. This is not what the Sixth Amendment prescribes.... Roberts' failings were on full display in the proceedings below. Sylvia Crawford made her statement while in police custody, herself a potential suspect in the case. Indeed, she had been told that whether she would be released "depend[ed] on how the investigation continues." App. 81. In response to often leading questions from police detectives, she implicated her husband in Lee's stabbing and at least arguably undermined his self-defense claim. Despite all this, the trial court admitted her statement, listing several reasons why it was reliable. In its opinion reversing, the Court of Appeals listed several other reasons why the statement was not reliable. Finally, the State Supreme Court relied exclusively on the interlocking character of the statement and disregarded every other factor the lower courts had considered. The case is thus a self-contained demonstration of Roberts' unpredictable and inconsistent application....

We readily concede that we could resolve this case by simply reweighing the "reliability factors" under Roberts and finding that Sylvia Crawford's statement falls short. But we view this as one of those rare cases in which the result below is so improbable that it reveals a fundamental failure on our part to interpret the Constitution in a way that secures its intended constraint on judicial discretion. Moreover, to reverse the Washington Supreme Court's decision after conducting our own reliability analysis would perpetuate, not avoid, what the Sixth Amendment condemns. The Constitution prescribes a procedure for determining the reliability of testimony in criminal trials, and we, no less than the state courts, lack authority to replace it with one of our own devising.

We have no doubt that the courts below were acting in utmost good faith when they found reliability. The Framers, however, would not have been content to indulge this assumption. They knew that judges, like other government officers, could not always be trusted to safeguard the rights of the people; the likes of the dread Lord Jeffreys were not yet too distant a memory. They were loath to leave too much discretion in judicial hands. Cf. U.S. Const., Amdt. 6 (criminal jury trial); Amdt. 7 (civil jury trial); Ring v. Arizona, 536 U.S. 584, 611-612, 153 L. Ed. 2d 556, 122 S. Ct. 2428 (2002) (Scalia, J., concurring). By replacing categorical constitutional guarantees with open-ended balancing tests, we do violence to their design. Vague standards are manipulable, and, while that might be a small concern in run-of-the-mill assault prosecutions like this one, the Framers had an eye toward politically charged cases like Raleigh's--great state trials where the impartiality of even those at the highest levels of the judiciary might not be so clear. It is difficult to imagine Roberts' providing any meaningful protection in those circumstances.

Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers' design to afford the States flexibility in their development of hearsay law--as does Roberts, and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether. Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination. We leave for another day any effort to spell out a comprehensive definition of "testimonial." Whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations. These are the modern practices with closest kinship to the abuses at which the Confrontation Clause was directed.

In this case, the State admitted Sylvia's testimonial statement against petitioner, despite the fact that he had no opportunity to cross-examine her. That alone is sufficient to make out a violation of the Sixth Amendment. Roberts notwithstanding, we decline to mine the record in search of indicia of reliability. Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation. The judgment of the Washington Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

Davis v. Washington

A 911 operator ascertained from Michelle McCottry that she had been as-saulted by her former boyfriend, petitioner Davis, who had just fled the scene. McCottry did not testify at Davis's trial for felony violation of a domestic no-contact order, but the court admitted the 911 recording de-spite Davis's objection, which he based on the Sixth Amendment's Confrontation Clause. He was convicted.

What result on appeal under Crawford?

Hammon v. Indiana

When police responded to a reported domestic disturbance at the home of Amy and Hershel Hammon, Amy told them that nothing was wrong, but gave them permission to enter. Once in-side, one officer kept petitioner Hershel in the kitchen while the other interviewed Amy elsewhere and had her complete and sign a battery affidavit. Amy did not appear at Hershel's bench trial for, inter alia, domestic bat-tery, but her affidavit and testimony from the officer who questioned her were admitted over Hershel's objection that he had no opportunity to cross-examine her. Hershel was convicted.

What result on appeal under Crawford?

Melendez-Diaz v. Massachusetts

NAt petitioner's state-court drug trial, the prosecution introduced certifi-cates of state laboratory ana-lysts stating that material seized by police and connected to petitioner was cocaine of a certain quantity. As required by Massachusetts law, the certifi-cates were sworn to before a notary public and were submitted as prima facie evidence of what they asserted. Petitioner ob-jected, asserting that Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177, required the analysts to testify in person. The trial court dis-agreed, the certificates were admitted, and petitioner was convicted.

What result on appeal under Crawford?