Evidence Under the Rules

by Mueller, Christopher B.

Edition: 5th

ISBN13: 9780735540620

ISBN10: 0735540624

Format: Hardcover

Pub. Date: 2004-05-30

Publisher(s): Wolters Kluwer

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Summary

This highly successful, problem-based coursebook For The basic evidence course enters its Fifth Edition reflecting recent changes To The Federal Rules of Evidence and providing even greater flexibility for teaching and learning. With each edition of Evidence Under the Rules, The authors refine their approach and build on their book's popular features: The book is organized around the Federal Rules of Evidence, and covers the basics clearly and succinctly. A combination of explanatory text, problems, carefully-selected cases, and notes provide superb coverage and sustains interest in the subject. Engaging and realistic problems effectively raise critical issues in evidence law and application of the Federal Rules. Careful editing pares down cases to include enough facts to provide context while focusing on evidence issues. Flexible organization allows professors to easily restructure the material to fit their course organization. Extensive Teacher's Manual provides analysis of featured cases, problems, and issues raised in the note material. Annual Rules supplement contains the text of the Federal Rules standing alone, along with a separate section setting forth both the Rules And The accompanying advisory committee notes and relevant congressional reports, making for a full teaching package covering the whole course. In addition to changes in the rules integrated throughout the book, the Fifth Edition presents: Several new feature cases and problems, extensively revised note material, updated references in notes to additional opinions decided since the previous edition of the book. Revised material on scientific evidence to reflect developments since Kumho Tire And The recent changes in FRE 702 in expert testimony. Revisions designed to shorten and clarify the introductory material on the hearsay doctrine. References to State v. Crawford, currently being reviewed in the United States Supreme Court, which may bring developments in the against-interest exception And The jurisprudence of the Confrontation Clause. The respected and well-known team of Christopher B. Mueller and Laird C. Kirkpatrick has helped generations of law students understand how the rules of evidence actually apply in practice. Put their expertise to work in your next course by adopting their coursebook Evidence Under the Rules, Fifth Edition . Please visit the new companion website to learn more about this book. Website: http://www.aspenlawschool.com/muellerkirkpatrick5

Preface

xxix

Acknowledgments

xxxiii

Special Notice

xxxv

Evidence Law and the System: Why We Have Rules of Evidence and How They Work in an Adversary System

(50)

Why Rules of Evidence?

(4)

Why Evidence Law at All?

(1)

Why Rules Rather Than Common Law?

(3)

What Happens at Trial

(8)

Jury Selection

(1)

Opening Statement

(1)

Presentation of Proof

(2)

Trial Motions

(1)

Closing Argument

(1)

Instructions

(1)

Deliberations

(1)

The Verdict

(1)

Judgment and Post-Trial Motions

(1)

Appellate Review

(1)

Making the Record

(6)

What Is the Record and How Is It Made?

(2)

Beware the Pitfalls---What Not to Do

(4)

Taking Care---What to Do

(1)

How Evidence Is Admitted or Excluded

(23)

Getting Evidence In: Foundation and Offer

(1)

Testimonial Proof---Direct Examination

(2)

Testimonial Proof---Cross-Examination

(5)

How Did It Happen?

(1)

Real Evidence

(2)

Demonstrative Evidence

(1)

Writings

(1)

Keeping Evidence Out

(1)

The Objection

(5)

The Motion in Limine

(1)

The Offer of Proof

(4)

Judicial ``Mini-Hearings''

(2)

Consequences of Evidential Error

(6)

Appraising Such Error on the Merits

(3)

Appellate Deference: The Discretion of the Trial Judge

(1)

Procedural Pitfalls and Adversarial Gambits

(2)

He Didn't Object!

(1)

Obtaining Review of Evidence Points

(3)

Appeal from Judgment

(1)

Interlocutory Appeal

(3)

Relevance

(56)

Introduction

(2)

Logical Relevance

(18)

Relevance and Materiality

(1)

Old Chief v. United States (I)

(4)

Notes on Relevance, ``Fit,'' and Offers to Stipulate

(1)

Establishing Relevance: The Evidential Hypothesis

(3)

Was He Going Too Fast?

(1)

Relevance as Threshold: The Standard of Probative Worth

(1)

Relevance In Operation: Hypothesis and Standard Applied

(1)

Flight and Guilt

(1)

Notes on Evidence of Attempts to Avoid Capture

(2)

Relevance Reconsidered: The Problem of Induction

(3)

Too Much Wax on the Floor?

(1)

Pragmatic Relevance

(19)

Prejudice and Confusion

(1)

State v. Chapple

(3)

Old Chief v. United States (II)

(4)

Notes on Prejudice, Gruesome Photographs, and Prior Crimes

(3)

The Battered Wife

(1)

The Exploding Gas Tank

(1)

Limited Admissibility---Confining the Impact of Proof

(1)

``My Insurance Will Cover It''

(1)

Notes on Limited Admissibility

(1)

Completeness---Providing Context

(1)

``Power Rollback Caused the Crash''

(1)

Notes on the Completeness Doctrine

(1)

``The Shortness of Life''

(1)

The Functions of Judge and Jury

(1)

The Bicycle Brake

(1)

Notes on Conditional Relevancy

(2)

The Relevance of Probabilistic Analysis

(17)

People v. Collins

(10)

Notes on Collins

100

(2)

The Exploding Tire

102

(1)

Notes on Probabilistic Proof in Civil Cases

103

(4)

Hearsay

107

(50)

What Is Hearsay?

107

(4)

Underlying Theory: Risks and Safeguards

107

(3)

Out-of-Court Statement Offered for Its Truth

110

(1)

Three See a Robbery

110

(1)

A Closer Look at the Doctrine

111

(23)

What Is a Statement?

111

(1)

Assertive Conduct

111

(1)

Nonassertive Conduct

112

(1)

Kenworth and Maserati

112

(1)

Wright v. Doe d. Tatham

112

(4)

Notes on Nonassertive Conduct as Hearsay

116

(3)

Cain v. George

119

(1)

Notes on Evidence of Noncomplaint

119

(1)

Indirect Hearsay

120

(1)

United States v. Check

121

(3)

Notes on Indirect Hearsay

124

(1)

Machines and Animals Speak

124

(1)

When Is a Statement Not Hearsay?

125

(1)

``The Blue Car Ran a Red Light''

126

(1)

Notes on Impeachment by Prior Statements

126

(1)

``Any Way You Like''

127

(1)

Whose Corn?

127

(1)

Notes on Verbal Acts

127

(1)

``I'm from the Gas Company''

128

(1)

Notes on Proving Effect on Hearer or Reader

128

(1)

Eagle's Rest Bar & Grill

129

(1)

Notes on Verbal Objects

129

(1)

Anna Sofer's Will

130

(1)

``A Papier-Mache Man''

130

(1)

Notes on Circumstantial Evidence of State of Mind and of Memory

131

(1)

What About Prior Statements by Testifying Witnesses?

132

(2)

Hearsay Under Rule 801

134

(3)

Definitional Approaches

134

(2)

Nonhearsay Uses and Nonassertive Conduct Revisited

136

(1)

Hearsay and Nonhearsay---Borderland of the Doctrine

137

(13)

Statements with Performative Aspects

137

(2)

United States v. Singer

139

(1)

Notes on Statements with Performative Aspects

140

(1)

Notes on Statements that are not Declarative Sentences

141

(1)

``My Husband Is in Denver''

142

(1)

Notes on Lying and Hearsay

142

(2)

King Air YC-437-CP

144

(1)

Notes on the Significance of Disclosure

144

(1)

Using Statements to Prove Matters Assumed

145

(1)

United States v. Pacelli

145

(2)

Notes on Using Statements to Prove Unspoken Thoughts

147

(3)

Hearsay---Test Your Understanding

150

(7)

Betts v. Betts

150

(2)

Notes on Statements As Circumstantial Evidence of State of Mind

152

(1)

Hearsay Quiz

153

(4)

Hearsay Exceptions

157

(240)

Exceptions---Declarant Testifying

158

(25)

Prior Inconsistent Statements

158

(1)

State v. Smith

158

(4)

Notes on Prior Proceedings

162

(1)

``I Got Amnesia''

163

(1)

Notes on Substantive Use of Inconsistent Statements: Memory Loss and Cross-Examinability

164

(3)

Prior Consistent Statements

167

(2)

Tome v. United States

169

(7)

Notes on Prior Consistent Statements and FRE 801 (d) (1) (B)

176

(2)

Prior Statements of Identification

178

(1)

State v. Motta

179

(3)

Notes on Application of FRF. 801(d)(1)(C)

182

(1)

Admissions by Party Opponent

183

(44)

Individual Admissions

185

(1)

Fire in the Warehouse

185

(1)

Notes on Individual Admissions

186

(2)

Street Skirmish

188

(1)

Notes on Prior Guilty Pleas

189

(1)

Bruton v. United States

190

(3)

His Master's Car

193

(1)

Notes on Bruton and the Problem of Admissions in Multiparty Situations

194

(1)

Adoptive Admissions

195

(1)

United States v. Hoosier

196

(1)

Notes on Tacit Admissions

197

(1)

Doyle v. Ohio

198

(3)

Notes on Silence as Admission

201

(1)

``Did You Rob That Bank?''

202

(1)

Admissions by Speaking Agents

203

(1)

Couldn't He See the Boy?

204

(1)

Notes on Admissions in Judicial Proceedings

204

(1)

Admissions by Employees and Agents

205

(2)

Mahlandt v. Wild Canid Survival & Research Center

207

(4)

Notes on Statements By Agents or Servants

211

(2)

``I Was on an Errand for My Boss''

213

(1)

Coconspirator Statements

213

(3)

Bourjaily v. United States

216

(6)

Notes on Procedural Problems

222

(3)

Drugs Across the Border

225

(1)

Notes on the Coconspirator Exception

226

(1)

Unrestricted Exceptions

227

(74)

Present Sense Impressions and Excited Utterances

227

(1)

Nuttall v. Reading Co.

227

(3)

Notes on Present Sense Impressions

230

(2)

United States v. Iron Shell

232

(4)

Notes on Excited Utterances

236

(2)

``I Felt This Sudden Pain''

238

(1)

Notes on Proving Excitement for Purposes of the Exception

239

(1)

State of Mind

239

(1)

Then-Existing Physical Condition

240

(1)

Then-Existing Mental or Emotional Condition

240

(3)

``He Says He'll Kill Me''

243

(1)

Notes On Proving State of Mind by Fact-Laden Utterances

243

(2)

Subsequent Conduct

245

(1)

Mutual Life Insurance Co. v. Hillmon

245

(3)

United States v. Pheaster

248

(4)

Notes on State of Mind as Proof of Conduct

252

(4)

Fright Points the Finger

256

(1)

Notes on Statements and Behavior By Murder Victims Indicating Fear

256

(1)

Facts About Declarant's Will

257

(1)

Statements to Physicians

258

(1)

Blake v. State

258

(3)

Notes on Statements to Physicians

261

(5)

Past Recollection Recorded

266

(1)

Ohio v. Scott

266

(4)

Notes on Past Recollection Recorded

270

(1)

Business Records

271

(2)

Petrocelli v. Gallison

273

(4)

Notes on Medical Records

277

(1)

Norcon, Inc. v. Kotowski

278

(3)

Notes on Internal Reports Offered as Business Records

281

(3)

Public Records

284

(1)

Baker v. Elcona Homes Corp.

285

(5)

Notes on Public Records in Civil Cases

290

(2)

United States v. Oates

292

(5)

Notes on Using Lab Reports in Criminal Cases

297

(1)

Notes on Using Other Kinds of Public Records in Criminal Cases

298

(1)

Notes on the Trustworthiness Factor

299

(1)

Learned Treatises

300

(1)

Notes on Learned Treatises

300

(1)

Exceptions---Declarant Unavailable

301

(45)

The Unavailability Requirement

301

(3)

``The Government Let Her Go''

304

(1)

Notes on Procured Absence

305

(1)

Barber v. Page

306

(2)

Notes on Unavailability and the Constitution

308

(1)

The Former Testimony Exception

309

(2)

Lloyd v. American Export Lines, Inc.

311

(6)

Notes on Prior Cross-Examination Requirement

317

(1)

Dying Declarations

318

(1)

Notes on Dying Declarations

319

(2)

Declarations Against Interest

321

(1)

Introduction and General Considerations

321

(4)

Criminal Cases---Statements Implicating the Accused

325

(1)

Williamson v. United States

325

(8)

Notes on Statements Against Penal Interest That Implicate the Accused

333

(3)

Criminal Cases---Statements Exonerating the Accused

336

(1)

``He Had Nothing to Do with It''

336

(1)

Notes on Statements Against Penal Interest that Exonerate the Accused

337

(1)

Corroboration Requirement; Other Details

338

(2)

Statements of Personal or Family History

340

(2)

Statements Admissible Because of Forfeiture by Misconduct

342

(1)

``If You Want to Stay Healthy''

342

(1)

Notes on the Forfeiture-by-Misconduct Exception

343

(3)

The Catchall Exception

346

(9)

Origin of the Catchall

346

(2)

The Catchall and Proof of Exonerating Facts

348

(1)

State v. Weaver

348

(4)

Notes on Proving Exonerating Facts with the Catchall

352

(1)

The Catchall and Child Abuse Prosecutions

353

(2)

The Minor Exceptions

355

(4)

Constitution as Bar Against Hearsay

359

(38)

Introduction

359

(3)

Modern Doctrine: Roberts, Crawford, and the Ascendance of Two Theories

362

(1)

Ohio v. Roberts

363

(4)

Notes on the Roberts Two-Pronged Approach

367

(1)

Crawford v. Washington

368

(13)

Notes on Crawford's ``Testimonial'' Approach

381

(2)

What About Statements Subject to Prior or Later Cross-Examination?

383

(1)

Prior Cross-Examination

384

(1)

Deferred Cross-Examination

385

(3)

``New Hearsay''

388

(1)

Idaho v. Wright

388

(4)

Notes on Constitutional Limits on New Hearsay

392

(1)

Protected-Witness Testimony

393

(1)

Notes on Protected-Witness Testimony

394

(3)

Relevance Revisited

397

(52)

Character Evidence

397

(31)

Relevancy and Form

397

(2)

Character to Prove Conduct on a Particular Occasion

399

(1)

Character of Criminal Defendant

399

(1)

Fight in the Red Dog Saloon

400

(1)

Notes on Evidence of Defendant's Character

400

(1)

Character of Crime Victim

401

(1)

Red Dog Saloon---Part II

401

(1)

Notes on Evidence of the Victim's Character

401

(1)

Methods of Proving Character

402

(1)

Red Dog Saloon---Part III

402

(1)

Notes on Opinion and Reputation

402

(1)

Cross-Examination and Rebuttal

403

(1)

What Price Truth?

403

(1)

Notes on Cross-Examination of Character Witnesses

404

(1)

Civil Cases

405

(1)

Character as an Element of a Charge, Claim, or Defense

405

(1)

Criminal Cases

405

(1)

``She's a Known Thief''

406

(1)

Notes on Character as an ``Element'' in Criminal Cases

407

(1)

Civil Cases

408

(1)

Notes on Character as an ``Element'' in Civil Cases

409

(1)

Prior Acts as Proof of Motive, Intent, Plan, and Related Points

410

(1)

General Considerations

410

(1)

Proving Intent

410

(1)

Drug Sale or Scam?

410

(1)

Notes on Prior Acts as Proof of Intent and Related Points in Criminal Cases

411

(2)

Identity, Modus Operandi

413

(1)

``He Came Running in All Hunched Over''

413

(1)

Notes on Prior Acts to Prove Modus Operandi

413

(1)

Plan, Design

414

(1)

The Corrupt Judge

414

(1)

Notes on Prior Acts Offered to Prove Plan or Design

415

(1)

Other Purposes

416

(1)

``It Was an Accident''

416

(1)

Notes on Other Uses of Prior Crimes Evidence

416

(1)

Proving the Prior Act

417

(1)

``I Didn't Know They Were Stolen''

417

(1)

Notes on Proving Prior Acts

418

(2)

Character in Sex Offense Cases

420

(1)

Sexual History of Victim (Rape Shield Statutes)

420

(1)

Ordeal of Leslie or Fred

421

(1)

Notes on Evidence of Complainant's Prior Sexual Conduct

421

(2)

Prior Offenses by Defendants in Sex Crime Trials

423

(1)

``I Told Him to Stop''

424

(1)

Notes on Proving Defendant's Prior Sexual Conduct in Trials for Sexual Assault and Child Abuse

425

(3)

Habit and Routine Practice

428

(4)

Death on the Highway

429

(1)

The Exploding Can

429

(1)

Notes on Habit Evidence in Negligence Cases

430

(1)

Was He Served?

431

(1)

Notes on Organizational Custom and Practice

432

(1)

Remedial Measures

432

(9)

Tuer v. McDonald

433

(6)

Notes on Subsequent Remedial Measures

439

(2)

Settlement Negotiations

441

(5)

Civil Settlements

441

(1)

Two Potato, One Potato

442

(1)

Notes on Settlement Offers

442

(1)

Plea Bargaining in Criminal Cases

443

(1)

``I Used His Stuff''

443

(1)

``Just Keep Them out of It''

444

(1)

Notes on Plea-Bargaining Statements and Nolo Contendere Pleas

444

(2)

Proof of Payment of Medical Expenses

446

(1)

Proof of Insurance Coverage

447

(2)

Notes on Evidence of Insurance Coverage

448

(1)

Competency of Witnesses

449

(28)

Historical Note

449

(2)

Notes on Historical Grounds of Incompetency

451

(1)

Competency: The Modern View

451

(2)

United States v. Lightly

451

(1)

Notes on the Modern View of Competency

452

(1)

The Oath Requirement

453

(2)

United States v. Fowler

453

(1)

Notes on the Oath Requirement

454

(1)

The Child Witness

455

(2)

Ricketts v. Delaware

455

(1)

Notes on Children as Witnesses

456

(1)

Previously Hypnotized Witnesses

457

(7)

Rock v. Arkansas

457

(5)

Notes on Hypnosis in the Courtroom

462

(2)

Dead Man's Statutes

464

(2)

Florida Statutes §90.602

465

(1)

New Jersey Statutes Annotated §2A:81-2

465

(1)

California Evidence Code §1261

466

(1)

Notes on Dead Man's Statutes

466

(1)

Lawyers as Witnesses

466

(2)

Notes on Lawyers as Witnesses

467

(1)

Jurors as Witnesses

468

(6)

Preverdict Testimony by Jurors

468

(1)

Outside Influence

468

(1)

Postverdict Testimony by Jurors

468

(1)

Tanner v. United States

468

(5)

Notes on Tanner v. United States

473

(1)

Refusal to Take the Stand

473

(1)

The $800,000 Jury Error

473

(1)

The Jury View

474

(1)

The Bomber

474

(1)

Judges as Witnesses

474

(1)

The Personal Knowledge Requirement

475

(2)

The Peacock's Tale

476

(1)

Direct and Cross-Examination Revisited

477

(24)

Direct Examination

477

(7)

Nonleading Questions

477

(1)

Exceptions---Leading Questions Allowed

477

(2)

Baker v. State

479

(4)

Notes On Refreshing Recollection

483

(1)

Cross-Examination

484

(8)

Leading Questions

484

(1)

Cross-Examining on Witness Preparation Material

484

(1)

James Julian, Inc. v. Raytheon Co.

484

(4)

Notes on Applying Rule 612

488

(2)

Cross-Examination as an Entitlement

490

(2)

Excluding Witnesses

492

(9)

The General Principle

492

(1)

Susanna and the Elders

492

(2)

Notes on Excluding Witnesses

494

(1)

Daily Transcripts

494

(1)

Notes on Breadth of FRE 615

495

(1)

Traditional Exemptions from the Witness Rule

495

(1)

The Special Case of Crime Victims

496

(1)

``Neither Victims nor Parents of a Victim''

497

(1)

Notes on Exempting Crime Victims

498

(3)

Impeachment of Witnesses

501

(94)

Introduction

501

(1)

Nonspecific Impeachment

502

(46)

Bias and Motivation

502

(1)

United States v. Abel

503

(5)

Notes On Showing Bias

508

(2)

The Hired Gun

510

(1)

Notes on Cross-Examining the Paid Witness

511

(1)

Sensory and Mental Capacity

512

(1)

Notes on Proving Lack of Capacity

512

(2)

Character for ``Truth and Veracity''

514

(1)

Cross-Examination on Nonconviction Misconduct

514

(3)

United States v. Manske

517

(5)

Notes on Cross-Examination on Nonconviction Misconduct

522

(3)

Proving Prior Convictions

525

(5)

United States v. Lipscomb

530

(5)

``Hit the Deck''

535

(1)

Notes on Applying FRE 609(a)(1)

535

(3)

``The Plaintiff Is an Ex-Con''

538

(1)

Notes on Applying FRE 609(a) (2)

538

(2)

Five-Time Loser

540

(1)

Faker, Thug?

540

(1)

Notes on Coordinating FRE 608 with 609

541

(1)

Luce v. United States

542

(2)

Notes on Preserving Error for Review

544

(2)

Character Witnesses

546

(1)

Notes on Expert Opinion Relating to Credibility

547

(1)

Specific Impeachment

548

(33)

Prior Inconsistent Statements

548

(2)

``He's Trying to Sandbag Us!''

550

(1)

Notes on Applying FRE 613(b)

550

(1)

United States v. Webster

551

(1)

Notes on ``Abuse'' of FRE 607

552

(3)

Harris v. New York

555

(4)

Notes on Impeachment by Miranda-Barred Statements

559

(2)

Jenkins v. Anderson

561

(4)

Notes on the Use of Silence to Impeach

565

(2)

Contradiction

567

(4)

``That's Just Collateral, Your Honor''

571

(1)

Notes on ``Collateral Matters'' and the Relevancy of Counterproof Offered to Contradict

572

(1)

United States v. Havens

573

(5)

Notes on Contradicting a Witness by Constitutionally Excludable Counterproof

578

(1)

``Have You Ever Sold Narcotics Before?''

579

(1)

Notes on Contradicting a Witness by Counterproof Excludable Under the Rules

579

(2)

Repairing Credibility

581

(12)

Rebutting Impeaching Attacks

581

(1)

Notes on Rebutting Impeaching Attacks

581

(1)

Evidence of Good Character

582

(1)

United States v. Medical Therapy Sciences

583

(4)

Notes on Proving Truthfulness: Character and Behavioral Syndrome Evidence

587

(2)

Prior Consistent Statements

589

(2)

``She Handed Me the Heroin''

591

(1)

Notes on Prior Consistencies

592

(1)

Forbidden Attacks

593

(2)

Notes on Religious Belief and Impeachment

593

(2)

Opinion and Expert Testimony; Scientific Evidence

595

(72)

Lay Opinion Testimony

595

(7)

``It Was My Impression''

598

(1)

The Watchful Neighbor

598

(2)

Notes on Lay Opinion Testimony

600

(2)

Expert Witnesses

602

(18)

Who Is an Expert?

602

(1)

When Can Experts Testify?

602

(2)

Bases for Expert Testimony

604

(3)

``The Tube Came Out''

607

(1)

Notes On Bases for Expert Testimony

608

(2)

``.24 Percent Alcohol''

610

(1)

Formal Problems---Ultimate Issues, Legal Elements, and So Forth

610

(1)

Notes on Formal Restrictions

611

(2)

Presentation of Expert Testimony

613

(4)

Notes on Presenting Expert Testimony

617

(2)

Court-Appointed Experts

619

(1)

Reliability Standard for Scientific and Other Technical Evidence

620

(47)

Defining a Standard

620

(1)

Daubert v. Merrell Dow Pharmaceuticals

621

(11)

Kumho Tire Company, Ltd. v. Carmichael

632

(7)

Notes on Daubert, Kumho Tire, and the Reliability Standard

639

(4)

Modern Science in the Courtroom

643

(1)

Toxic Tort Cases

644

(1)

Syndrome and Social Framework Evidence

645

(2)

``They Become Anxious and Guilt-Ridden''

647

(2)

Notes on Syndrome and Framework Evidence

649

(2)

DNA Evidence

651

(1)

State v. Moore

651

(4)

``We Found a Match''

655

(1)

Notes on DNA Evidence

656

(3)

Serologic and DNA Testing and Paternity

659

(2)

Paternity Index 624

661

(1)

Notes on Serologic and Genetic Tests in Paternity Cases

662

(5)

Burdens of Proof and Presumptions

667

(66)

Burdens and Presumptions in Civil Cases

667

(29)

Pretrial Burdens (Pleading, Pretrial Statement)

667

(1)

Trial Burdens (Production and Persuasion)

668

(3)

A Special Device for Shifting and Allocating Burdens: The Presumption

671

(1)

Sources and Nature of Presumptions

671

(3)

How They Work in One-Sided and Contingent Situations

674

(1)

The Unhappy Harpsichordist

675

(1)

Note on Presumptions in the Contingent Situation

676

(1)

How They Work in the ``In-Between'' Situation

676

(3)

The Death of Mason Parnell

679

(1)

Notes on Presumptions in the ``In-Between'' Cases

680

(3)

Operation of Rule 301

683

(1)

Texas Department of Community Affairs v. Burdine

683

(6)

Notes on Burdine and FRE 301 in ``In-Between'' Cases

689

(3)

Further Notes on Burdine and Application of FRE 301

692

(2)

The ``In-Between'' Situation Reconsidered

694

(1)

State Presumptions in Diversity Cases

695

(1)

Notes on FRE 302

695

(1)

Burdens, Presumptions, and Inferences in Criminal Cases

696

(37)

Burden of Persuasion

696

(1)

Patterson v. New York

696

(13)

Notes on Burden of Persuasion in Criminal Cases

709

(2)

Killing by ``Calculation and Design''?

711

(1)

Presumptions and Inferences

712

(1)

Sandstrom v. Montana

713

(6)

Notes on the Significance of Sandstrom

719

(1)

County of Ulster v. Allen

720

(9)

Notes on the Significance of Allen

729

(1)

Presence of a Firearm

730

(1)

Notes on Inferences in Criminal Cases

730

(3)

Judicial Notice

733

(24)

Introduction

733

(2)

Judicial Notice of Adjudicative Facts

735

(4)

Dry Pavement

735

(1)

The Subpoena

735

(1)

Interstate Call

735

(1)

The Football Fan

735

(1)

The Arab Oil Embargo

736

(1)

Asbestos and Cancer

736

(1)

Government of the Virgin Islands v. Gereau

736

(2)

Notes on Judicial Notice of Adjudicative Facts

738

(1)

Judicial Notice in Criminal Cases

739

(4)

United States v. Jones

739

(2)

Notes on Judicial Notice in Criminal Cases

741

(2)

Deadly Weapon

743

(1)

Evaluative Facts

743

(2)

``Okay, Maurie''

743

(1)

Notes on Notice of Evaluative Facts

744

(1)

Judicial Notice of Legislative Facts

745

(3)

Muller v. Oregon

745

(1)

Houser v. State

746

(2)

Notes on Judicial Notice of Legislative Facts

748

(1)

Judicial Notice of Law

748

(3)

Notes on Judicial Notice of Law

749

(2)

The Problem of Classification

751

(6)

United States v. Gould

751

(2)

Obscene Books

753

(1)

Notes on the Problem of Classification

753

(1)

``Drunk as a Skunk''

754

(1)

Lighter Fluid Explosion

755

(1)

Speed Trap

755

(2)

Privileges

757

(92)

Introduction

757

(2)

Notes on FRE 501

758

(1)

Attorney-Client Privilege

759

(45)

Reasons for the Privilege

759

(1)

J. Bentham, Rationale of Judicial Evidence

759

(1)

Notes on Justifications for the Privilege

760

(2)

``A Bum Rap''

762

(1)

Professional Services

762

(1)

The Bail Jumper

762

(1)

Notes on Providing Professional Services

763

(1)

Communications

764

(1)

The Tipsy Client

764

(1)

Notes on Observations and Advice by Counsel

765

(1)

The Transferred Tax Records

766

(1)

People v. Meredith

766

(4)

Notes on Applying the Privilege to Objects

770

(2)

Required Confidentiality

772

(1)

Involving or Disclosing to Communicative Intermediaries

772

(1)

United States v. Kovel

772

(2)

Notes on Communicative Intermediaries and Other Aides

774

(1)

Joint Clients and Pooled Defenses

775

(1)

A Failed Venture

775

(1)

Notes on Intentional Disclosure

776

(1)

Leaks and Eavesdroppers

777

(1)

Suburban Sew `N Sweep v. Swiss Bernia

777

(2)

Notes on Scavengers and Eavesdroppers

779

(1)

The Corporate Client

780

(2)

Upjohn Co. v. United States

782

(7)

Notes on Corporate Attorney-Client Privilege

789

(1)

Exceptions to Coverage

790

(1)

Client Identity

791

(1)

In re Grand Jury Investigation 83-2-35 (Durant)

791

(4)

Notes on Privilege for Client's Identity

795

(1)

Future Crime or Fraud

796

(1)

State v. Phelps

796

(2)

Notes on the Crime-or-Fraud Exception

798

(1)

Assertion and Waiver

799

(1)

Asserting the Privilege

799

(2)

The Reluctant Lawyer

801

(1)

Notes on Appellate Review of Privilege Issues

801

(1)

Waiver

802

(1)

Notes on Waiver of Attorney-Client Privilege

803

(1)

The Psychotherapist-Patient Privilege

804

(12)

Jaffee v. Redmond

804

(9)

Notes on Jaffee and the Federal Psychotherapist-Patient Privilege

813

(3)

Spousal Privileges

816

(14)

Introduction

816

(1)

Testimonial Privilege

817

(1)

Trammel v. United States

817

(6)

Notes on Spousal Testimonial Privilege

823

(2)

Hit-and-Run

825

(1)

Spousal Confidences Privilege

825

(2)

United States v. Estes

827

(2)

Notes on Spousal Confidences

829

(1)

The Child Molester

830

(1)

The Privilege Against Self-Incrimination

830

(19)

An Overview

830

(1)

Persons Protected

831

(1)

Scope of Privilege

832

(1)

The Noncooperative Driver

832

(1)

Incrimination

833

(1)

Drawing of Adverse Inferences

834

(1)

Griffin v. California

834

(3)

Notes on Griffin v. California

837

(1)

``He Claimed the Fifth''

838

(1)

Writings

839

(1)

The Inculpatory Diary

839

(1)

United States v. Doe

839

(6)

Notes on Required Disclosure and the Fifth Amendment

845

(1)

Required Records and Reports

846

(2)

Notes on the Required Records Doctrine

848

(1)

Foundational Evidence, Authentication

849

(28)

Introduction

849

(2)

Notes on the Authentication Requirement

850

(1)

Tangible Objects

851

(4)

United States v. Johnson

851

(2)

Notes on Authenticating Tangible Objects

853

(1)

A White Granular Substance

853

(1)

United States v. Howard-Arias

853

(1)

Notes on Chain of Custody

854

(1)

Writings

855

(4)

United States v. Bagaric

855

(1)

Notes on Authenticating Writings

856

(1)

The Land-Sale Contract

856

(1)

R. Keeton, Basic Expressions for Trial Lawyers

857

(1)

``The Wizard'' and the Incriminating Email

857

(1)

Notes on Authenticating of Emails

858

(1)

Tape Recordings

859

(4)

The Hidden Microphone

859

(1)

United States v. Biggins

859

(3)

Notes on Authenticating Recorded Conversations

862

(1)

Other Exhibits

863

(1)

The Photograph

863

(1)

X-Ray

863

(1)

Computer Printout

863

(1)

Telephone Conversations

864

(2)

United States v. Pool

864

(1)

Notes on Authenticating Telephone Calls

864

(1)

``This Is O'Rourke''

865

(1)

Self-Authenticating Exhibits

866

(3)

The Rejected Easement

866

(1)

The Death Certificate

866

(2)

The House of the Rising Sun

868

(1)

Notes on Self-Authenticating Exhibits

868

(1)

Demonstrative Evidence

869

(8)

Belli, Demonstrative Evidence: Seeing Is Believing

869

(4)

Notes on Demonstrative Evidence

873

(1)

``The Animation Will Help the Jury''

873

(1)

Notes on Computer-Created Animations

874

(3)

The ``Best Evidence'' Doctrine

877

(22)

Introduction

877

(2)

Notes on the ``Best Evidence'' Doctrine

878

(1)

The Defamatory Letter

879

(1)

Defining a ``Writing, Recording, or Photograph''

879

(3)

United States v. Duffy

879

(3)

Notes on Defining a ``Writing, Recording, or Photograph''

882

(1)

Defining an ``Original''

882

(1)

The Unprivate Physician

882

(1)

Notes on Defining an ``Original''

883

(1)

Use of Duplicates

883

(2)

``There Never Was Such an Original''

884

(1)

Nine Hours or One?

884

(1)

Best Evidence Doctrine in Operation

885

(7)

The XXX-Rated Movies

886

(1)

The Surveillance Photograph

887

(1)

Meyers v. United States

887

(3)

Notes on Meyers and the Limits of the Best Evidence Doctrine

890

(1)

The Recorded Conversation

891

(1)

The Sick Chickens

891

(1)

Cash Payment

891

(1)

The Unreported Burglary

892

(1)

The Unproduced X-Ray

892

(1)

Production of Original Excused

892

(7)

Sylvania Electric Products v. Flanagan

892

(3)

Notes on Admissibility of ``Other Evidence of Contents''

895

(1)

Testimony versus Photocopy

896

(1)

The Tax Evader

896

(1)

``No Pets''

897

(1)

Notes on Other Escapes from Producing the Original

897

(2)

Table of Cases

899

(12)

Table of Rules

911

(4)

Table of Authorities

915

(6)

Index

921

Evidence Under the Rules

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