Copyright 2014 Carolina Academic Press, LLC. All rights reserved. EVIDENCE LAW AND PRACTICE Sixth Edition

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1 EVIDENCE LAW AND PRACTICE Sixth Edition

2 LexisNexis Law School Publishing Advisory Board Paul Caron Professor of Law Pepperdine University School of Law Herzog Summer Visiting Professor in Taxation University of San Diego School of Law Bridgette Carr Clinical Professor of Law University of Michigan Law School Olympia Duhart Professor of Law and Director of Lawyering Skills & Values Program Nova Southeastern University, Shepard Broad Law School Samuel Estreicher Dwight D. Opperman Professor of Law Director, Center for Labor and Employment Law NYU School of Law Steven I. Friedland Professor of Law and Senior Scholar Elon University School of Law Carole Goldberg Jonathan D. Varat Distinguished Professor of Law UCLA School of Law Oliver Goodenough Professor of Law Vermont Law School Paul Marcus Haynes Professor of Law William and Mary Law School John Sprankling Distinguished Professor of Law McGeorge School of Law

3 EVIDENCE LAW AND PRACTICE Sixth Edition Steven I. Friedland Professor of Law Elon University School of Law Paul Bergman Professor of Law Emeritus U.C.L.A. School of Law Andrew E. Taslitz

4 ISBN: (casebook) ISBN: (looseleaf) ebook ISBN: Library of Congress Cataloging-in-Publication Data Friedland, Steven I., author. Evidence law and practice / Steven I. Friedland, Professor of Law, Elon University School of Law; Paul Bergman, Professor of Law Emeritus, U.C.L.A. School of Law; Andrew E. Taslitz Sixth edition. pages cm. Includes index. ISBN (hardbound) 1. Evidence (Law) United States. I. Bergman, Paul, author. II. Taslitz, Andrew E., author. III. Title. KF8935.Z9F dc This publication is designed to provide authoritative information in regard to the subject matter covered. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional services. If legal advice or other expert assistance is required, the services of a competent professional should be sought. LexisNexis and the Knowledge Burst logo are registered trademarks of Reed Elsevier Properties Inc., used under license. Matthew Bender and the Matthew Bender Flame Design are registered trademarks of Matthew Bender Properties Inc. Copyright 2014 Matthew Bender & Company, Inc., a member of LexisNexis. All Rights Reserved. No copyright is claimed by LexisNexis or Matthew Bender & Company, Inc., in the text of statutes, regulations, and excerpts from court opinions quoted within this work. Permission to copy material may be licensed for a fee from the Copyright Clearance Center, 222 Rosewood Drive, Danvers, Mass , telephone (978) NOTE TO USERS To ensure that you are using the latest materials available in this area, please be sure to periodically check the LexisNexis Law School web site for downloadable updates and supplements at Editorial Offices 630 Central Ave., New Providence, NJ (908) Mission St., San Francisco, CA (415) (2014 Pub.3118)

5 Preface Our wonderful friend and colleague Andy Taslitz (affectionately known by all friends and colleagues as Taz ) unexpectedly passed away during the preparation of this Sixth Edition. We dedicate this new edition to him, and hope that his commitment to helping students to become good people and competent and caring lawyers continues to permeate the book. This new edition continues the tradition of providing example-rich textual discussions that explain the rules of evidence, followed by problems that give students opportunities to apply the rules in a rich array of factual settings. To promote variety in classroom teaching for instructors and students alike, we have created numerous types of problems. Throughout the chapters you will find: Short-answer problems. Multiple choice problems. Role play exercises. Transcript exercises. Problems based on scenes from classic (and sometimes not-so-classic but nonetheless interesting from the standpoint of evidence rules) movies and TV shows. We encourage instructors who can do so to show the clips in class in conjunction with the problems. We have made the following major changes from the prior editions of the book: 1. We have eliminated the Case Libraries that formerly were a part of many chapters. The opinions in the libraries added to the book s length and cost, and we decided that they are no longer necessary when they are easily accessible online. We have instead summarized the opinions in the relevant chapters, and provided web addresses for the opinions that formerly were in the Case Libraries. 2. A new Appendix 2 sets forth California Evidence Code provisions that differ in significant ways from the Federal Rules of Evidence. 3. Many of the review problems that were previously in Chapter 19 have been scrapped and replaced by a set of Multiple Choice questions (and answers). Since many Evidence examinations include multiple choice questions, we hope that the revised version of Chapter 19 will be especially helpful to students. The review problems being replaced are available to professors on the LexisNexis Webcourse created for this book. Thank you to the instructors and students who use the book; your positive responses encourage us to continue to produce the best Evidence textbook we can. Prof. Steve Friedland Prof. Paul Bergman iii

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7 Evidence Challenge Get courtroom experience with Evidence Challenge! Want a higher score on your evidence exam? Throughout this publication, you will see notations at the end of chapters for further case challenges related to the evidence topic. To prepare you for exams and challenge your comprehension, go to www. EvidenceChallenge.com to purchase access to the website. This interactive problem-and role-based exam preparation tool is available as a companion study aid for this publication. The interface was developed by an education expert partnering with LexisNexis product development teams. Evidence Challenge case problems give students the opportunity to repeatedly practice application of chapter-relevant rules and concepts while preparing for exams. Here s how it works: Launch a problem, and enter a virtual courtroom where you are one of the attorneys. Uncover all the information you need for the questions posed by clicking on the characters and exhibit icons in the courtroom. You may be prompted to review further resources including documents, images, audio, or video. Each problem offers a variety of possible responses and a feedback loop that tells you where you need to focus your studies. Links to applicable case problems will appear at the end of chapters in this publication: EVIDENCE CHALLENGE: Challenge yourself to learn more about this topic. Enter the following address into your browser to access Evidence Challenge and apply these concepts to realistic problems set in a virtual courtroom. Additional purchase required. Each problem will take 5 10 minutes to complete as you work through various decision points in the realistic courtroom scenario: read instructions, review testimony or other evidence, link to the Problem Study Resources on Lexis Advance and choose how to proceed. At the conclusion of the problem, review your detailed results page, see how well you answered each question within the problem, and see your performance relative to how others scored. Depending on your score, you may be granted an achievement! Retry problems when recommended, or just play them again for practice and to improve your score. Evidence Challenge: Included with specially marked enhanced LexisNexis law school ebooks or purchase access separately directly at the Evidence Challenge website. v

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9 Chapter 1 INTRODUCTION TO EVIDENCE CHAPTER CHECKLIST RELEVANT FEDERAL RULES OF EVIDENCE LAWSUITS AND RULES OF EVIDENCE THE DIFFERENT MEANINGS OF EVIDENCE Problem 1-1: Prove It Problem 1-2: Inspector Clousseau CATEGORIES OF EVIDENCE: REAL; REPRESENTATIVE; AND TESTIMONIAL EVIDENCE Problem 1-3: Clousseau Revisited ANOTHER HELPFUL DISTINCTION DIRECT OR CIRCUMSTANTIAL EVIDENCE Problem 1-4: Drawing Inferences in the Sand EVIDENCE IN THE TRIAL COURTS United States v. Wayne Gillis A JURY OF HER PEERS Problem 1-5: A Jury of Her Peers CHAPTER REVIEW PROBLEMS Review Problem 1-A Review Problem 1-B Chapter 2 THE ROLES OF JUDGES, JURIES, AND ATTORNEYS AT TRIAL CHAPTER CHECKLIST RELEVANT FEDERAL RULES OF EVIDENCE INTRODUCTION THE TRIAL JUDGE S ROLE [A] Questions of Admissibility Problem 2-1: Alimony Al [B] Appellate Judges: The Standard of Review on Appeal Problem 2-2: Justice was Done, so Appeal Immediately THE JURY S ROLE THE ATTORNEY S ROLE Problem 2-3: My Cousin, the Lawyer, Vinnie SUMMARY AND REVIEW CHAPTER REVIEW PROBLEMS Review Problem 2-A Review Problem 2-B vii

10 Review Problem 2-C Chapter 3 RELEVANCE CHAPTER CHECKLIST RELEVANT FEDERAL RULES OF EVIDENCE THE IMPORTANCE OF RELEVANCE DEFINING RELEVANCE Problem 3-1: Judge Judy Problem 3-2: Bermuda Love Triangle Problem 3-3: Missing Problem 3-4: Eddie From Boston Problem 3-5: The Reel Thing Problem 3-6: Beam Me Up Problem 3-7: Fire! (a.k.a. Burning Down the House) Problem 3-8: I Wuz Robbed! Problem 3-9: Benny and Jets Problem 3-10: Ahnald Problem 3-11: Ahnald s Younger Brother Problem 3-12: Sexual Battery Problem 3-13: The Commuter Problem 3-14: A Bottle of Red Problem 3-15: Name Your Price Problem 3-16: Too Rough Justice Problem 3-17: Lions and Tigers and Problem 3-18: Evidence, Politics, and Race Problem 3-19: Exploding Tire Problem 3-20: Parnell v. Asbestos, Inc Problem 3-21: Blowing Smoke CONDITIONAL RELEVANCE Problem 3-22: On a Cloudy Day Problem 3-23: Stone Crabs Problem 3-24: Defective Paint Problem 3-25: An Accident? Problem 3-26: Joe C. Boss COMPARING RULES SUMMARY AND REVIEW CHAPTER REVIEW PROBLEMS Review Problem 3-A: The Swallower Review Problem 3-B Review Problem 3-C viii

11 Chapter 4 RELEVANT BUT INADMISSIBLE UNFAIRLY PREJUDICIAL EVIDENCE CHAPTER CHECKLIST RELEVANT FEDERAL RULES OF EVIDENCE INTRODUCTION Problem 4-1: One Drink Too Many Problem 4-2: A Day in the Life of Susan White Problem 4-3: In a New York State of Mind PROBABILITY EVIDENCE OF IDENTITY IN A CRIMINAL CASE.. 70 Problem 4-4: Chances Are EVIDENCE OF EXCESSIVE VIOLENCE Problem 4-5: Lose Your Lunch Problem 4-6: Legs SCIENTIFIC EVIDENCE Problem 4-7: Videotape Replay Problem 4-8: To Tell the Truth SIMILAR OCCURENCES, HAPPENINGS, AND EVENTS Problem 4-9: Slipped Up Problem 4-10: Spoiled Shrimp Problem 4-11: Double Decker Problem 4-12: Sugar or Sweetener? Problem 4-13: Harassment Problem 4-14: Unfair Prejudice Problem 4-15: People v. Penny SUMMARY AND REVIEW CHAPTER REVIEW PROBLEMS Review Problem 4-A Review Problem 4-B Review Problem 4-C Review Problem 4-D CASE LIBRARY People v. Collins Old Chief v. United States Chapter 5 CHARACTER AND HABIT EVIDENCE CHAPTER CHECKLIST RELEVANT FEDERAL RULES OF EVIDENCE CHARACTER EVIDENCE BASICS [A] Defining Character Evidence Problem 5-1: The Ogler Problem 5-2: At the Movies: Insane Anatomy of a Murder ix

12 [B] Act Versus Mental Propensity Evidence: The General Rules: Rules 404(a) and 405(b) Problem 5-3: The Negligent Driver Problem 5-4: Seduced No More Problem 5-5: Entrapped! Problem 5-6: At the Movies: Custody Fight Problem 5-7: Creativity FORMS OF CHARACTER EVIDENCE [A] Admissibility of Reputation, Opinion, and Specific Acts Evidence: Rule 404(b), 1st Sentence, Rule 405(a) (b) [B] Problems on the Form of Character Evidence Problem 5-8: The Warden Cross-Examined Problem 5-9: Group Therapy Problem 5-10: The Violent Victim Problem 5-11: United States v. Lorean Problem 5-12: Rambo II LAYING THE FOUNDATION FOR CHARACTER EVIDENCE [A] Reputation [B] Opinion Problem 5-13: Ogling Again Problem 5-14: More Creativity Problem 5-15: Negligently Entrusting Redux Problem 5-16: More United States v. Lorean EXCEPTIONS TO THE RULE 404(a) PROPENSITY BAN [A] Admissible Instances of Propensity Evidence [B] Character of the Accused: Rule 404(a)(2)(A) Problem 5-17: The Tortious Criminal Assailant Problem 5-18: The Escaping Hostage Problem 5-19: Suicidal Homicide Problem 5-20: At the Movies: Treason [C] Character of the Victim in Cases Other Than Homicide and Sexual Misconduct: Rule 404(a)(2)(B) Problem 5-21: Urban War Syndrome Problem 5-22: The Scarlet Letter Problem 5-23: False Pretenses [D] Prosecutor Attack on the Criminal Defendant s Same Character Trait Permitted Once the Defense Has Attacked the Victim on that Trait Problem 5-26: More Urban War Syndrome Problem 5-27: What Goes Around Comes Around [E] Character of the Victim in Homicide Cases: Rule 404(a)(2)(C) Problem 5-24: The Green-Eyed Monster x

13 Problem 5-25: Knife Fights SEXUAL OFFENSES AND SEXUAL MISCONDUCT: CRIMINAL AND CIVIL [A] The Rape Shield Law: Exception to an Exception: Rule [1] The General Rule: Rule 412(a) Problem 5-28: At the Movies: Pre-Shield Problem 5-29: On the Tube: Liar Problem 5-30: At the Movies: At the Bar Problem 5-31: At the Movies: Quick Re-Marriage Problem 5-32: Rhonda s Outrage Problem 5-33: Stained Reputations Problem 5-34: Romantic Dreams [2] Exceptions in Criminal Cases: Rule 412(b)(1) Problem 5-35: Satanic Rites Problem 5-36: Fantasies Problem 5-37: Toby Wyatt: Adulterer or Rapist? Problem 5-38: Homage to To Kill a Mockingbird [3] Exception in Civil Cases: Rule 412(b)(2) Problem 5-39: Romantic Dreams Redux Problem 5-40: Sexual Harassment [4] Procedure to Determine Admissibility: Rule 412(c) Problem [B] Character of the Defendant in a Criminal or Civil Sexual Assault or Child Molestation Case: Rule 413, 414, Problem 5-42: Not-Quite Pinched Buttocks Problem 5-43: S & M IMPEACHMENT: RULES 404(a)(3), 608, AND [A] Distinction between Impeachment and Substantive Evidence [B] Rule 608 Impeachment Generally [1] Opinion and Reputation: Rule 608(a) Problem 5-44: Johnny Larsen s Divorce Problem 5-45: Married Robbers Problem 5-46: Married Robbers Revisited [2] Specific Acts: Rule 608(b) Problem 5-47: Johnny Larsen s Return Problem 5-48: The Harassing Politician [C] Rule 609-Impeachment by Prior Convictions [1] Felony Convictions: Rule 609(a)(1) [2] Misdemeanor and Crimen Falsi Convictions: Rule 609(a)(2) [3] Special Qualifications to Rule [4] Extrinsic Evidence [5] Eliciting Details of Prior Convictions xi

14 Problem 5-49: The Matasow Corporation Problem 5-50: Johnny Winter s Lament Problem 5-51: At the Movies: Snitch Attack Problem 5-52: Forging a Defense MID-CHAPTER REVIEW [A] Schematic [B] Synthesizing the Rules Studied Thus Far: The Diagrammatic Approach [1] Categorizing Character [2] Mini-Review Problems Problem 5-53: O.J. Mimpson Defamed Problem 5-54: Wherefore Art Thou, Romeo? Problem 5-55: The Drunken Suspect NON-PROPENSITY USES OF CHARACTER EVIDENCE: RULES 401, 404(a), 405(b) Problem 5-56: The Violent Drunk THINGS THAT LOOK LIKE ACT PROPENSITY EVIDENCE BUT ARE NOT [A] Rule 404(b) Specific Acts Offered for Non-Character Uses or Mental Propensity Uses [1] General Principles and Problems [a] Purposes Other Than Character [b] Proof of Specific Acts [c] Rule 403 Balancing [d] Problems Problem 5-57: Fearing the Navy Seal Problem 5-58: O.J. Accused [2] Motive Problem 5-59: Illegitimate Prescriptions Problem 5-60: The Pokemon Gang Problem 5-61: Infidelity Problem 5-62: Cocaine and Concealed Currency Problem 5-63: Attempted Murder, She Wrote [3] Opportunity Problem 5-64: High-Tech Terrorism Problem 5-65: Oprah Wanafree [4] Identity Problem 5-66: Count Dracula Problem 5-67: Gambling for Drugs Problem 5-68: Drug Courier Profile [5] Intent or Knowledge Problem 5-69: The Mysterious Crib Death xii

15 Problem 5-70: The Malicious Prisoner Problem 5-71: The Confused Bookkeeper Problem 5-72: Brass Knuckles Problem 5-73: Duress Problem 5-74: People v. Chambers [6] Common Plan, Scheme, or Design Problem 5-75: The Comic Book Thief Problem 5-76: Inheriting by Murder Problem 5-77: Government Kickbacks Problem 5-78: Drug Dealers [B] Habit Problem 5-79: Stolen Sneakers Problem 5-80: The Hurrieder I Go, The Behinder I Get Problem 5-81: Chivas Problem 5-82: Don t Do Me Like That CHARACTER EVIDENCE REVIEW PROBLEMS Problem 5-83: Orwellian Defamation Problem 5-84: Perjuring Clergy Problem 5-85: Perjuring Clergy Revisited Problem 5-86: Maxwell s Silver Tongue Problem 5-87: False Cries Problem 5-88: Reasonable Belief? Problem 5-89: Mistaken Identification Problem 5-90: Simply Assaulting Problem 5-91: Tax Fraud Chapter 6 OTHER EXCLUSIONS OF RELEVANT EVIDENCE: THE QUASI-PRIVILEGES CHAPTER CHECKLIST RELEVANT FEDERAL RULES OF EVIDENCE OVERVIEW SUBSEQUENT REMEDIAL MEASURES: RULE Problem 6-1: The Ruptured Bulldozer Problem 6-2: The Painful Beach Party Problem 6-3: Rotund University OFFERS TO COMPROMISE: RULES 408 AND [A] Importance of Compromise in Civil and Criminal Cases [B] Evidence of Civil Settlement Agreements and Negotiations: Rule Problem 6-4: The Car Crash Problem 6-5: The Non-Settling Defendant Problem 6-6: The Recalcitrant Health Insurer xiii

16 Problem [C] Plea Bargains and Related Statements in Criminal Cases: Rule Problem 6-7: Rodney Ransom Problem 6-8: Turning on Mr. Big Problem 6-9: Waiving Rule PAYMENT OF MEDICAL AND SIMILAR EXPENSES Problem 6-10: Med X Problem 6-11: Kommander Condominium Club LIABILITY INSURANCE: RULE Problem 6-12: I Forgot Problem 6-13: Go Ahead and Jump Problem 6-14: Columbo Problem 6-15: Statutory Interpretation Exercise REVIEW PROBLEMS: SYNTHESIZING THE QUASI-PRIVILEGES. 238 Problem 6-16: Let s Make a Deal Problem 6-17: Engulf and Devour Problem 6-18: Battery Problem 6-19: Gorkey Park Problem 6-20: Did I Say That? Problem 6-21: The Singing Sparrow Problem 6-22: Rosetta s Orwellian Plight Problem 6-23: Maxwell s Comeuppance Chapter 7 THE EXAMINATION AND IMPEACHMENT OF WITNESSES CHAPTER CHECKLIST RELEVANT FEDERAL RULES OF EVIDENCE EXAMINATION OF WITNESSES [A] Overview [B] Competency: Who May Testify Problem 7-1: The Habitual Drug Addict Problem 7-2: Say What? Problem 7-3: Dead Again and Again Problem 7-4: Hypnotized [C] Requirement of Personal Knowledge Problem 7-5: Robbin the Hood [D] Competency of Judges and Attorneys as Witnesses (Rule 605) Problem 7-6: Anyone But You Problem 7-7: The Deal [E] Competency of Jurors as Witnesses (Rule 606) Problem 7-8: At the Movies xiv

17 Problem 7-9: Stop the Reading! [F] The Sequential Order of Witness Testimony and Form Objections [G] Witness Strategy [1] General Principles [2] Direct Examination Problem 7-10: Returning to Form Objections Problem 7-11: More Form [3] Cross-Examination Problem 7-12: Scope Problem 7-13: Succa Mucca Rucca IMPEACHMENT OF WITNESSES [A] Introduction [B] Comparing Intrinsic and Extrinsic Impeachment [C] Common Types of Impeachment [1] Overview Problem 7-14: Cross My Heart: An Overview [2] Contradiction Problem 7-15: Cross.com [3] Bias Problem 7-16: The Right Direct-Ion Problem 7-17: Just Friends Problem 7-18: Losing Religion [4] Convictions of Crime [a] Crimes of Dishonesty or False Statement [b] Felony Convictions Problem 7-19: Forgery, Fake, Fraud Problem 7-20: Medical Mal Problem 7-21: One Bad Apple [5] Prior Untruthful Acts Problem 7-22: Liar, Liar [6] Testimonial Capacities Problem 7-23: Psychotic Chips [7] Prior Inconsistent Statements [8] Poor Character For Truthfulness Extrinsic Impeachment Only Problem 7-24: Truth-o-Meter Problem 7-25: Cavalier and Convicted [D] Two-Way Admissibility of Some Prior Inconsistent Statements Problem 7-26: Yeah, Right [E] More Impeachment Problems Problem 7-27: You Took the Tag Off of Your Mattress?! Problem 7-28: Defamation Redux xv

18 Problem 7-29: The Young Freud Problem 7-30: Extrinsically Yours Problem 7-31: More Perjury Problem 7-32: Bigfoot Problem 7-33: Buddies Revisited Problem 7-34: Edna to Rachel to Frank Problem 7-35: Mortgage Problem 7-36: Interregnum [F] Rehabilitation of Witnesses Problem 7-37: Rehab [G] Refreshing the Witness s Memory Problem 7-38: Sammy Says [H] Impeachment Statutes SUMMARY AND REVIEW CHAPTER REVIEW PROBLEMS Review Problem 7-A Review Problem 7-B Review Problem 7-C Review Problem 7-D Chapter 8 LAY OPINION EVIDENCE CHAPTER CHECKLIST RELEVANT FEDERAL RULES OF EVIDENCE DISTINGUISHING BETWEEN LAY AND EXPERT TESTIMONY [A] The Distinction [B] Connection to Conditional Relevance [C] When Laypersons Can Offer Opinions [1] Rationally Based on Perceptions of Witness [2] Collective Facts [3] Skilled Lay Observers [4] Some Caveats PROBLEMS Problem 8-1: High on Marijuana Problem 8-2: More My Cousin Vinnie and Tire Marks Problem 8-3: The Stolen Ring Problem 8-4: The Wound Problem 8-5: The Insanity Defense Problem 8-6: The Plane Crash Problem 8-7: The Wink xvi

19 Chapter 9 EXPERT OPINION EVIDENCE CHAPTER CHECKLIST RELEVANT FEDERAL RULES OF EVIDENCE NATURE OF EXPERT TESTIMONY [A] Why Experts Are Needed [B] The Syllogistic Nature of Expert Reasoning Problem 9-1: Radioactive Taggants Problem 9-2: Rape Trauma Syndrome [C] Why Special Expert Admissibility Rules Are Needed Problem 9-3: Taggants Revisited Problem 9-4: Rape Trauma Syndrome Revisited PRESENTATION OF EXPERT TESTIMONY [A] Rule 702 Helpfulness of Expert Opinion and Qualifications of Expert Problem 9-5: Bomb-Blast Terrorism Problem 9-6: Rape and Consent Problem 9-7: The Inaccurate Eyewitness Problem 9-8: Dr. Borg [B] Direct Examination of Experts [1] The Hypothetical Question and the Four Data Sources Problem 9-9: Bomb-Blast Terrorism Continued Problem 9-10: Rape and Consent Continued [2] Liberalization Under the Federal Rules of Evidence [a] Rule [b] Rule Problem 9-11: The Gullible Personality Problem 9-12: The Negligent Radiologist Problem 9-13: Monopolies and Economists [3] Or Otherwise Problem 9-14: The Radiologist and Psychologist Meet [4] The Ultimate Issue Rule Problem 9-15: Gullibility Revisited Problem 9-16: The Insanity Defense Revisited [5] Reasonable Degree of Professional Certainty [6] The Opinion Rule and Out-of-Court Statements [C] Cross-Examination: Scope and Manner Problem 9-17: My Cousin Vinnie Cross-Examined Problem 9-18: Or Was It the Accurate Eyewitness? Problem 9-19: Trial Transcript Exercise on the Scope and Manner of Examining Experts Problem 9-20: Black Rage xvii

20 9.05 THE MAJOR PREMISES: RELEVANCE AND RELIABILITY OF GENERAL PRINCIPLES AND METHODS [A] Defining Terms Problem 9-21: Principled Methods [B] Scientific Evidence [1] The Frye Test [a] The Test Stated [b] Validity v. Reliability [c] Defining the Relevant Field [d] Developmental Stages of Forensic Evidence Problem 9-22: The Battered Child Problem 9-23: Fresh Fingerprints Problem 9-24: Fortune Cookie [2] The Daubert Test [a] Holding and Rationale: Interpreting the Federal Rules of Evidence [b] The Daubert Factors [i] The Factors Stated [ii] Defining Testability [iii] The Gatekeeping Function Caution: Problem 9-25: Linguistic Rage Problem 9-26: The Horizontal Gaze Nystagmus Test Problem 9-27: My Brand New Miata Problem 9-28: Harassment! Problem 9-29: Probably Guilty [iv] Procedural Concerns Problem 9-30: Reversal of Rage Problem 9-31: Concluding Methods Problem 9-32: HGN and Daubert Hearings [C] Evidence Based on Technical or Other Specialized Knowledge, Including Social Science Problem 9-33: Raging Against Daubert Problem 9-34: Fred Fraud Fred Problem 9-35: Baseball Problem The Best Defense THE MINOR PREMISES Problem 9-37: Probabilities Revisited Problem 9-38: The Crime Scene Investigator Problem 9-39: Psychologists Hearsay EXPERT EVIDENCE REVIEW PROBLEMS Problem 9-40: Physician, Heal Thyself xviii

21 Problem 9-41: Coercive Indoctrination Problem 9-42: Experts Not Chapter 10 PROTECTING THE ADVERSARY SYSTEM: THE HEARSAY RULE AND THE CONFRONTATION CLAUSE CHAPTER CHECKLIST RELEVANT FEDERAL RULES OF EVIDENCE INTRODUCTION HEARSAY DEFINED THE HEARSAY RULE AND THE ADVERSARY SYSTEM [A] Hearsay Rule Protects the Right to Cross-Examine [B] The Hearsay Dangers [C] Why Not Admit Hearsay For What It s Worth? [D] Hearsay Policy Problems Problem 10-1: The Telephone Game Problem 10-2: Beyond Question? Problem 10-3: What s the Use? Problem 10-4: Hearsay Expert WHO ARE DECLARANTS? [A] Definitions and Examples [B] Declarant Problems Problem 10-5: Where s the Declarant? Problem 10-6: Bloody Glove Problem 10-7: Polly Wants a Conviction Problem 10-8: News to Me Problem 10-9: Photo Finish Problem 10-10: Print Out? Problem 10-11: My Better Side Problem 10-12: Just the Ticket WAS THE STATEMENT MADE OUT-OF-COURT? [A] General Rule [B] Out-of-Court Problems Problem 10-13: On My Word Problem 10-14: On My Word Again Problem 10-15: Big Mouth Problem 10-16: Same Ol, Same Ol WHAT IS A STATEMENT? [A] Definition and Examples [B] Hidden Statements [1] Sub-Assertions xix

22 [2] Linked Assertions [3] Invisible Assertions [4] Vicarious Assertions [5] Assertive Conduct [6] Implied Assertions [C] Statement Problems Problem 10-17: Flight Problem 10-18: Knock Knock Problem 10-19: Hard Landing I Problem 10-20: Hard Landing II Problem 10-21: Hard Landing III Problem 10-22: Help! Problem 10-23: Take Notes Problem 10-24: Raise a Glass Problem 10-25: Cell Phone Problem 10-26: Loot Lips Problem 10-27: Slippery Slope I Problem 10-28: Slippery Slope II Problem 10-29: Slippery Slope III Problem 10-30: Slippery Slope IV Problem 10-31: Beersay Problem 10-32: Eye Message Problem 10-33: A Civil Action Problem 10-34: Need Moe Money Problem 10-35: A Ticket, Attack It Problem 10-36: Brief Case I Problem 10-37: Brief Case II Problem 10-38: Alibi-Bye Problem 10-39: At the Movies: Take Dictation COMMON HEARSAY MISCONCEPTIONS [A] It s Not Hearsay If You Paraphrase [B] It s Not Hearsay If the Witness Is Also the Declarant [C] The Statement Isn t Hearsay If It s Circumstantial Evidence [D] It s Not Hearsay If The Statement Was Made in a Police Officer s Presence HEARSAY REVIEW PROBLEMS Problem 10-40: Carded Problem 10-41: Loretta Problem 10-42: Stat! Problem 10-43: No Parking Problem 10-44: Instant Replay xx

23 Problem 10-45: Bettor Beware HEARSAY AND THE CONFRONTATION CLAUSE Problem 10-46: Scarred Problem 10-47: One and Done Problem 10-48: Tender Years Problem 10-49: Tipping Point Problem 10-50: It s Not What You Say, It s Where You Say It Problem 10-51: There Goes the Neighbor, Hood Problem 10-52: Brothers in Lawlessness Problem 10-53: About Time Problem 10-54: Potpourri CHAPTER REVIEW PROBLEMS Review Problem 10-A Review Problem 10-B Review Problem 10-C Review Problem 10-D Chapter 11 NON-HEARSAY PURPOSES FOR OUT-OF-COURT STATEMENTS CHAPTER CHECKLIST RELEVANT FEDERAL RULES OF EVIDENCE INTRODUCTION STEP TWO OF THE HEARSAY MATRIX: IDENTIFYING AN ASSERTION S NON-HEARSAY PURPOSE STEP THREE OF THE HEARSAY MATRIX: DETERMINING THE RELEVANCE OF A CLAIMED NON-HEARSAY USE PROBATIVE VALUE VERSUS UNFAIR PREJUDICE COMMON NON-HEARSAY USES [A] Overview [B] Assertion Relevant to Declarant s State of Mind Problem 11-1: Up the Creek I Problem 11-2: Up the Creek II Problem 11-3: Mother and Child Problem 11-4: Mine! Problem 11-5: Backache Problem 11-6: At the Movies: The Boyfriend Problem 11-7: At the Movies: Motive for Murder [C] Assertion Relevant to Listener s State of Mind Problem 11-8: Bagged Problem 11-9: Medical Mal Problem 11-10: Hold the Dressing xxi

24 [D] Assertion Offered as a Verbal Act (aka Words of Independent Legal Significance or Legally Operative Conduct ) Problem 11-11: Death and Problem 11-12: Payback Time Problem 11-13: Cellar Dweller Problem 11-14: Protection Problem 11-15: Mea Culpa Problem 11-16: Up in Arms [E] Assertion Offered to Contradict (Impeach) Testimony ( Prior Inconsistent Statement ) Problem 11-17: Speed Test Problem 11-18: Speed Test [F] Assertions Offered to Provide Context and Meaning CHAPTER REVIEW PROBLEMS Problem 11-19: Summation Problem 11-20: My Case is Shot Problem 11-21: Policy Argument Problem 11-22: Bad Heir Day Problem 11-23: Bad Heir Day Problem 11-24: Bad Heir Day Problem 11-25: Affordable Hearsay Problem 11-26: Honeymoon Over Problem 11-27: Mind the Gap Problem 11-28: Garden Variety Hearsay Problem 11-29: Garden Variety Hearsay Problem 11-30: Garden Variety Hearsay Problem 11-31: Garden Variety Hearsay Problem 11-32: Alternate Defenses Problem 11-33: Security Alert (Role Play) Problem 11-34: Zoo Suit Problem 11-35: Last Words (Role Play) Problem 11-36: Under Cover Problem 11-37: Rite to Trial Problem 11-38: Pre-School Problem 11-39: Self Service Problem 11-40: Parole Evidence Problem 11-41: 2-B or Not 2-B Problem 11-42: At the Movies: Self-Defense Problem 11-43: At the Movies: Addiction Problem 11-44: Bad Call Problem 11-45: Sold! xxii

25 Problem 11-46: At the Movies: The Shout Problem 11-47: Probable Claus Problem 11-48: Transcript Analysis MULTIPLE-CHOICE REVIEW PROBLEMS Review Problem 11-A Review Problem 11-B Review Problem 11-C Review Problem 11-D Review Problem 11-E Chapter 12 THE ADMISSIBILITY OF TESTIFYING WITNESSES HEARSAY STATEMENTS CHAPTER CHECKLIST RELEVANT FEDERAL RULES OF EVIDENCE INTRODUCTION WHY DISTINGUISH EXEMPTIONS FROM EXCEPTIONS? LAYING FOUNDATIONS FOR HEARSAY ADMISSIBILITY THROUGH MINI-TRIALS TESTIFYING WITNESSES PRIOR STATEMENTS [A] Three Categories of Exempt Statements [B] Prior Inconsistent Statements (Rule 801(d)(1)(A)) Problem 12-1: Try to Remember Problem 12-2: Blame Worthy Problem 12-3: Bar Exam Problem 12-4: Bar Exam Problem 12-5: Computer Caper Problem 12-6: Baby Ruth Problem 12-7: Ask the Expert Problem 12-8: Excuse Me Problem 12-9: The Woodshed Problem 12-10: Gimme Shelter [C] Prior Consistent Statements (Rule 801(d)(1)(B)) Problem 12-11: The Howling Problem 12-12: Sun Burned Problem 12-13: Park Place Problem 12-14: Just One More Thing Problem 12-15: Emot ( Tome Reversed) [D] Pretrial Identifications (Rule 801(d)(1)(C)) Problem 12-16: Bagged Problem 12-17: Hitting a Brick Wall Problem 12-18: Lengthy Rivalry xxiii

26 Problem 12-19: The Lineup Problem 12-20: At the Movies: Turncoat Problem 12-21: At the Movies: Better Late Than Never Problem 12-22: Statutory Interpretation Process Problem 12-23: Transcript Exercise MULTIPLE-CHOICE REVIEW PROBLEMS Review Problem 12-A Review Problem 12-B Review Problem 12-C Review Problem 12-D Chapter 13 THE ADMISSIBILITY OF OPPOSING PARTIES HEARSAY STATEMENTS CHAPTER CHECKLIST RELEVANT FEDERAL RULES OF EVIDENCE INTRODUCTION OPPOSING PARTIES STATEMENTS AND THE ADVERSARY SYSTEM DECLARANT IS THE OPPOSING PARTY (RULE 801(d)(2)(A)) Problem 13-1: Multiple Choys Problem 13-2: Who s a Party? Problem 13-3: Oh Canida Problem 13-4: Wrenching an Admission Problem 13-5: Pleading Ticket Problem 13-6: Brag Art Problem 13-7: Nocturnal Admission? ADOPTIVE STATEMENTS (RULE 801(d)(2)(B)) Problem 13-8: On the Tube: Barb-Accuse Problem 13-9: I Wanna Hold Your Hand (of Cards) Problem 13-10: Silent Right Problem 13-11: Car Jack Problem 13-12: Keeping Up Appearances AUTHORIZED STATEMENTS (RULE 801(d)(2)(C)) Problem 13-13: Lawyer Lee Problem 13-14: Scoop Problem 13-15: Gilligan s Island Problem 13-16: Way Out EMPLOYEE STATEMENTS (RULE 801(d)(2)(D)) Problem 13-17: Late for Class Problem 13-18: Pickup Line Problem 13-19: No Brakes xxiv