HEARSAY AND CONFRONTATION

16. Hearsay statements by deceased declarants about gang activity. Assess CEC § 1231,

17. Use of coconspirator statements against late joiners. See United States v Goldberg, 105 F3d 770,775 (1st Cir 1997)(held, a late-joining conspirator takes the conspiracy as he finds it, and statements admissible against other conspirators are admissible against the late joiner even though made before he joined).

18. Rule 803(4) in child sex abuse cases. See United States v. Norman T., 129 F3d 1099, 1105-06 (10th Cir 1997)(applying 803(4) to statements of five-year-old to physician and nurse, rejecting defense argument that a child that young does not understand the need for accuracy in reporting to medical personnel; child's statement accusing defendant of digital penetration considered reasonably pertinent to diagnosis or treatment), cert denied, 118 S Ct 1322 (1998).

19. Admissibility of a child's hearsay statements accusing the defendant of sexual assault, in the absence of any showing that the child was unavailable for testimony. White v. Illinois, 112 S.Ct. 736 (1992); Eleanor Swift, Smoke and Mirrors: the Failure of the Supreme Court's Accuracy Rational in White v. Illinois Requires a New Look at Confrontation, 22 Capital University Law Review 145 (1993); Lucy S. McGough, Child Witnesses: Fragile Voices in the American Legal System 126-56 (1994); R.P. Mosteller, Remaking Confrontation Clause and Hearsay Doctrine Under the Challenge of Child Sexual Abuse Prosecutions, 1993 U. Ill. L. Rev. 691-807. Warning: preemption danger.

20. Under FRE 801(d)(2), are admissions of government agents admissible against the government? See cases cited in Christopher B Mueller & Laird Kirkpatrick, Evidence § 904, at 34-35 (1995); Murrey v United States, 73 F3d 1448, 1455 (7th Cir 1996) (Posner, J)

21. Admissibility of database search of characteristics of sex offenses reported by police to show similarity of modus and to exclude possibility that someone else committed the crimes charged -- the "Sherlock" case. See People v. Hernandez, 1997 Ca App Lexis 411 (4th Dist 1997). In Hernandez, defendant was prosecuted for rape of two different victims committed in the same general area within a one-month period. The prosecution was allowed to present the testimony of a police expert that she had searched the San Diego police department's "Sherlock" database for similar crimes, using search criteria such as "suspect not black" and "stranger rape" to identify similar cases. She reported that the only two rapes for an 18-month period in Beats 125 and 114 that had characteristics like those of the charged rapes were the charged rapes themselves. The prosecutor argued to the jury that the lack of evidence of similar crimes in the area before the defendant moved in or after his arrest pointed to the defendant. Though many objections were made to the testimony, the court reversed on hearsay grounds, saying that the "Sherlock" database did not qualify for the business records exception because it contained information from victims and witnesses who had no official duty to observe and report the relevant facts. Instructions: Please consider whether database evidence similar to that offered in Hernandez would be admissible if the particular defects noted in Hernandez were cured.

22. The foundation for business records. The 2000 Amendments to FRE 803(6) and 901 make it possible to lay the foundation with affidavits. Previously there was some precedent against construing Fed. R. Evid. 104(a), which allows trial judges to consider otherwise inadmissible hearsay in making foundation determinations, to allow this foundation. See Plemmons v World Fibers Corp., 107 F3d 1534 (Fed Cir 1997)(held, affidavits not sufficient to lay foundation for business record because opponent needed opportunity to cross-examine sponsoring witness; moreover, consultant to business could not sponsor records because of lack of familiarity with record-keeping procedures). Problem: It may just be hard to make this topic intellectually challenging.

23. The business duty rule under contemporary law. See Stahl v State, 686 NE2d 89, 92 (Ind. 1997)(held, affidavit executed for bank by customer in which customer averred that he had not authorized anyone to use his ATM card inadmissible in prosecution of person who withdrew money from customer's account using card; customer under no business duty).
24. The regularity of business records. Pierce v Atchison Topeka, Santa Fe Ry Co, 110 F3d 431 (7th Cir 1997)(not abuse of discretion to exclude memo marked "to file" summarizing corporate executive's discussions with plaintiff about release of ADEA claim; district court was justified in excluding document, even though executive testified that he regularly maintained personnel records and drafted memos recording "unique" dealings with employees; district court had concluded that the memo was not regular or routine because it recorded an "unusual incident" that had "litigation potential").

25. The concept of "factual findings" in FRE 803(8)(c). Not all agency documents are factual findings even when they contain statements about facts. Smith v Isuzu Motors Ltd, 137 F3d 859 (5th Cir 1998) (excluding National Highway Traffic Safety Administration staff memos on grounds that the memos did not reflect "factual findings" of the agency, but rather the views of individual staff members, which the agency later declined to adopt).

26. Admissibility of foreign depositions in criminal cases. United States v McKeeve, 131 F3d 1, 9- 10 (1st Cir 1997) (use of witness deposition taken in Britain against criminal defendant not violation of 6th Amendment in case where (1) witness was unavailable, (2) defendant's attorney was transported to Britain by government to participate in deposition, and (3) defendant was allowed to monitor the deposition telephonically and to communicate privately with counsel during the deposition).

27. Admitting the confession of a co-defendant with defendant's name redacted. See Gray v Maryland, 118 S Ct 1151 (1998) (held, redacting confession of nontestifying codefendant confession by blanking out name (in written exhibit) or by substituting the word "deletion" (in oral testimony) did not satisfy Bruton where jury would realize that confession referred to defendant).

28. Admissibility of child abuse statements by nonvictims under medical treatment exception. See, e.g., Lovejoy v United States, 92 F3d 628, 631-32 (8th Cir 1996)(mother's statement to care provider on behalf of handicapped child describing sexual abuse of child witnessed by mother admissible under exception).

29. Admissibility of opinions and diagnoses contained in business records. Note that Rule 803(6) literally covers "opinions" and "diagnoses." Despite this language, opinions in business records are sometimes excluded. See Vance v Peters, 97 F3d 987, 995 (7th Cir 1996)(female prison inmate brought civil suit to recover for damages allegedly caused by excessive force by guard; finding of employee review officer, signed by warden, that guard had used excessive force inadmissible even though requirements of 803(6) met; Rule 403 required exclusion because jury should make up its own mind)

30. Admissibility of criminal convictions as public records even though they do not meet the requirements of 803(22). Some courts have allowed convictions for lesser crimes to be admitted under Rule 803(8) despite the apparent intent of 803(22). See Stroud v Cook, 931 F Supp 733, 736 (D Nev 1996)(Misdemeanor conviction that did not qualify under 803(22) nevertheless admissible as public record under 803(8))(alternative holding). Accord, United States v Loera, 923 F2d 725, 730 (9th Cir 1991). Contra Nipper v Snipes, 7 F3d 415, 417 (4th Cir 1993).

31. Waiver of hearsay objection by misconduct. Background: Rule 804(b)(6)(effective December 1, 1997) provides that the hearsay rule does not bar "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." The rule applies, for example, to situations in which the trial judge determines that the defendant murdered a witness to prevent the witness from testifying. The basic principle was widely recognized before the adoption of the new rule. See, e.g., United States v Houlihan, 92 F3d 1271, 1278-81 (1st Cir 1996)(murder of declarant waives confrontation rights; defendant's responsibility for murder need only be shown by preponderance of evidence). There will, I expect, be issues about what sort of wrongdoing (short of murder) causes forfeiture. There may also be attempts to apply the rule in situations in which the wrongdoing had the effect of putting a witness out of the way but was not motivated by the desire to eliminate a witness (e.g., ordinary murder cases in which the prosecution seeks to put in pre-murder statements of a victim).

32. Translator's statements as hearsay. DCS San v Occupational Safety and Health Commission, 82 F3d 812, 814-16 (hearsay-within-hearsay problem in which one level of alleged hearsay was out-of-court translator's rendition of declarant's statements from Spanish to English; court describes various approaches to translators' statements and admits the evidence).

33. Admissibility of the accusatory statement of an alleged accomplice under the declarations against interest exception to the hearsay rule. Williamson v. United States, 114 S.Ct. 2431 (1994)(a paper on this topic should examine lower court cases decided after Williamson and comment on how Williamson has been interpreted).

34. A "voice from the grave" -- the admissibility of accusatory words by homicide victims. For example, if an out-of-court declarant states his or her belief that a named person is trying to kill the declarant, and the declarant is murdered, should the declarant's statements be admissible in the trial of the alleged murderer? See State v. Revelle, 957 S.W.2d 428 (Mo. App. 1997)(Husband, accused of murdering wife for insurance money, claimed that intruders had committed the crime; held, letter from wife to husband stating her dissatisfaction with the marriage was inadmissible hearsay; wife's state of mind of being unhappy with husband not sufficiently relevant because defendant did not raise issue of amicability of the marriage) United States v. Day, 591 F.2d 861 (D.C. Cir. 1978); People v. Dalton, 201 Cal. App. 2d 396, 20 Cal. Rptr. 51 (4th Dist. 1962); Spencer v. State, 703 N.E. 2d 1053, 1056 (Ind. 1999)(held, murder victim's statements about defendant's threats not properly admissible either as nonhearsay to show officer's reason for investigating or under state of mind exception to show victim's fear, but error in receiving the evidence was harmless in light of overwhelming evidence of guilt) See Calif. Evid. Code § 1370, inspired by the O.J. Simpson case. Cf. Comment, The Admission of Hearsay Evidence Where Defendant Misconduct Causes the Unavailability of a Prosecution Witness, 43 Am. U. L. Rev., 995-1021 (1994).

EVIDENTIARY PRIVILEGES

35. Loss of the attorney-client privilege by revelation of information to government agency. United States v Massachusetts Institute of Technology, 129 F3d 681, 686 (1st Cir 1997)(Boudin, J.)(held, MIT lost privilege as to documents sought by IRS by sharing documents with Defense Contract Audit Agency as required by MIT's contracts with the agency).

36. Survival of the attorney-client privilege after the client's death. Swidler & Berlin v US, 1998 WL 333019 (U.S.), the Supreme Court held that the privilege survives the client's death where information about client communications is sought by the government in a criminal investigation, and it therefore prevented Independent Counsel Kenneth Starr from discovering the contents of communications that White House official Vince Foster made to Foster's private attorney shortly before Foster's suicide.

37. Attorney-client privilege for governmental entities and officials. The attorney-client privilege for government entities may be narrower than what the law provides for corporations, at least where information is sought by another government entity in a grand jury investigation. See In re: Grand Jury Subpoena Duces Tecum, 112 F3d 910, 921 (8th Cir 1997)(in case involving Hillary Rodham Clinton, court agrees with Special Prosecutor Kenneth Starr that privilege does not cover consultation of public official with government attorney where information is sought by grand jury, saying that strong public interest in exposing wrongdoing by public officials would be "ill-served by recognition of a governmental attorney-client privilege applicable in criminal proceedings inquiring into the actions of public officials"), cert denied sub nom Office of President v Office of Independent Counsel, 117 SCt 2482 (1997); In re Bruce R. Lindsey, 158 F.3d 1263, 1282 (D.C. Cir. 1998), cert. denied 119 S.Ct. 466 (1998). (In a case in which White House Counsel Bruce Lindsey refused to answer certain questions in grand jury testimony on grounds of attorney-client privilege, the court held that privilege did not apply to communications between two federal officials (the President and White House Counsel) officials, when information is sought by another federal official (the Independent Counsel) pursuant to a grand jury subpoena). Warning: preemption danger.

38. Does the attorney-client privilege apply to evidence of the client's identity and of payments by the client to the attorney? See, e.g., Alexiou v. United States, 39 F 3d 973, 976 (9th Cir 1994) (evidence of name of client who gave counterfeit bill to attorney and facts of payment are not covered by attorney client privilege where they are distinct from original purpose in retaining attorney)

39. The "dangerous patient" exception to the psychotherapist-patient privilege. See United States v Glass, 133 F3d 1356 (10th Cir 1998) (threat to president communicated to psychotherapist not automatically admissible; trial judge must make findings about seriousness of threat and whether revelation was necessary to avoid harm); Menendez v. Superior Court, 834 P.2d 786 (Cal. 1992)(held, threat to psychiatrist, and implicitly to his loved ones, justified compelling psychiatrist to testify against patient in criminal proceeding); George C. Harris, The Dangerous Patient Exception to the Psychotherapist-Patient Privilege: the Tasaroff Duty and the Jaffee Footnote, 74 Washington Law Review 33 (1999)(arguing that the duty to warn potential victims should be broader than the exception to the privilege, so that a therapist might have a duty to warn but still not be obliged to testify against a patient in a court proceeding).

40. Waiver of doctor-patient privilege by release of records to insurance company. Compare Henry v. Lewis, 478 N.Y.S.2d 263, 268 (N.Y.A.D. 1984)(Since the records were released to only one party, the insurance company, that cannot constitute a general waiver; "[t]his is particularly true in the case of patients who seek reimbursement under health insurance plans.") with Gould v Durkin, 1997 WL 256950 (E.D.Pa)(held, privilege waived by releasing records to insurance company). Cf. Reynaud, 187 Cal. Rptr 660 (1982).

41. Forfeiture of psychotherapist-patient privilege by putting mental condition in issue. Compare Vanderbilt v Town of Chilmark, 174 FRD 225, 228 (D Mass 1997)(held, employment discrimination plaintiff does not forfeit therapist-patient privilege by making claim of emotional distress, even though that puts her mental state in issue, so long as patient does not affirmatively introduce statements of her therapist into evidence) with Sarko v Penn-Del Directory Co, 170 FRD 127, 130 (ED Pa 1997)(held, plaintiff who claimed protection of the Americans with Disabilities Act on grounds that she suffered from clinical depression put her mental state into issue, and hence forfeited the privilege) and Vann v Lone Star Steakhouse & Saloon, 967 F Supp 346, 349 (CD Ill 1997)(plaintiff in sexual harassment action forfeited her therapist-patient privilege by claiming emotional injury and by naming her therapist as an expert witness).

42. Other issues about the scope of the psychotherapist-patient privilege in the federal courts. Jaffee v. Redmond, 116 S.Ct. 1923 (1996); Bruce J. Winick, The Psychotherapist-Patient Privilege: A Therapeutic Jurisprudence View, 50 U. Miami L. Rev. 249 (1996)

43. Can the adverse spousal testimony privilege be defeated by promising not to use the testimony against the spouse in a legal proceeding? See In re: Grand Jury, 111 F3d 1083, 1087 (3d Cir 1997)(held, adverse spousal testimony privilege can be defeated by binding promise by government not to use the testimony against spouse, hence removing element of adversity)

44. Invoking the privilege against self-incrimination when there is a danger of criminal prosecution in another country. See United States v Balsys, 1998 WL 332951 (U.S.)(held, even a realistic fear of prosecution in a foreign nation cannot be used as basis for invoking privilege against self-incrimination; only domestic crimes are crimes that incriminate within the meaning of the Fifth Amendment).

45. Parent-child privilege. In re Grand Jury Proceedings, Unemancipated Minor Child, 949 F Supp 1487, 1494 (ED Wash 1996)(because it is supported by policy reasons similar to spousal privilege, recognition of federal parent-child privilege comports with reason and experience; in instant case, however, grand jury subpoena to 17-year-old child would not be quashed because child failed to show either that confidential communications were sought or that testimony would be adverse to father's interests; precise contours of privilege not delineated); In re Grand Jury, 103 F3d 1140, 1146 (3rd Cir 1997)(parent-child privilege rejected after thoughtful discussion and extensive examination of authority; court suggests that parent-child relationship unlikely to be influenced by privilege).

46. Application of therapist-patient or clergy privilege to statements made during AA meetings. See Cox v. Miller, ___ F. Supp. ___ (S.D.N.Y. 2001)(held, clergy privilege applies). Cf United States v Schwensow 942 F Supp 402, 407-08 (ED Wis 1996)(held, incriminating statements of defendant, charged with being a felon in possession of a firearm, to AA volunteers not covered by therapist-patient privilege for alternative reasons, including the fact that the volunteers had no training in psychotherapy, that the defendant asked for information rather than seeking therapeutic counseling, and defendant's communications to volunteers about a bag in which a firearm was found were not related to diagnosis or treatment).

47. Contours of presidential communications privilege. See In re Sealed Case, 121 F3d 729, 752-53 (DC Cir 1997) (Wald, J)(the presidential communications privilege covers communications of presidential advisors made while preparing advice for President even if their statements were not made directly to the President).

48. Hospital peer review privilege. Robertson v. Neuromedical Center, 169 FRD 80 (MD La 1996)(court refuses to recognize hospital "peer review privilege" in context of Americans With Disabilities Act action)
IMPEACHMENT AND REHABILITATION OF WITNESSES

49. Is the trial judge required to allow impeachment of defendant's testimony with evidence of prior convictions for "crimes of dishonesty?" What is a "crime of dishonesty"? See, e.g., United States v. Brackeen, 969 F.2d 827 (9th Cir. 1992)(en banc)

50. When is evidence "extrinsic" for purposes of FRE 608(b)'s prohibition on impeachment of character for truthfulness with extrinsic evidence? See United States v Whitehead, 618 F2d 523 (4th cir 1979)(defendant could be cross-examined about disbarment, but documentary proof not admissible because extrinsic)(dictum); United States v Drake, 932 F2d 861 (10th Cir 1991)(admission of extrinsic school records showing witness lied about education upheld where opponent opened the door by demanding proof through custodian of records); United States v Jackson, 882 F2d 1444 (9th Cir 1989)(held, witness-defendant who denied unrelated act, offered to impeach, of misappropriating client funds was properly impeached with his prior statement admitting misappropriation; dissent argues that prior statement is extrinsic evidence); United States v Elliott, 89 F3d 1360, 1368 (8th Cir 1996)(upholding trial judge's decision to bar use of witness's allegedly false resume to attack her credibility on cross-examination; exact nature of attempted use unclear from opinion).

51. Impeachment of witnesses by cross-examination about acts reflecting on truthfulness. United States v Parker, 133 F3d 322, 326-27 (5th Cir. 1998) (held, not abuse of discretion to deny cross of government witness in bribery case about witness's alleged murder of witness's husband because acts of violence do not reflect on character for truthfulness)(this case in itself may not be worth a paper, but there are many other cases).

52. Impeachment of prosecution witnesses for bias by showing that they have committed crimes and are cooperating in hopes of achieving leniency. See, e.g., United States v. Matthews, 168 F.3d 1234, 1243 (11th Cir. 1999)(government witness allegedly had been arrested for vehicle theft, allegedly providing a motive for her to testify for the government; held, evidence of alleged arrest properly excluded; theory that charges had been brought and dropped in exchange for cooperation were speculative and unsupported by evidence); United States v Parker, 133 F3d 322, 327 (5th Cir 1998) (trial judge in federal bribery case prevented defense from cross-examining witness about state charges pending against witness for murder of witness' husband; appellate opinion indicates that because defense failed to present evidence that federal prosecutors had agreed to help witness in state murder case, "any error that may have occurred was harmless"); State v McCall, 549 NW2d 418, 422 (Wis 1996)(held, not error to exclude evidence that the prosecutor had dismissed two pending charges against the alleged victim and sole prosecution witness in a prosecution growing out of a shooting in which the victim was rendered a quadriplegic; Justices Abramson and Bablitch dissented); United States v Triplett, 104 F3d 1074, 1079 (8th Cir 1997)(held, no error to exclude testimony that police search found a possible controlled substance in home of prosecution witness, despite possible bias due to witness's hope of leniency; court notes that "the confiscated substance was never tested or positively identified as a controlled substance" and that the witness was never charged); United States v Morrison, 98 F3d 619, 627-28 (DC Cir 1996)(held, no abuse of discretion for trial judge to cut off questioning of witness about whether she was testifying against defendant to get lower sentence and thus avoid losing children; question called for "speculative answer" by witness; query correctness of rationale since even a speculative belief of witness that cooperation would help her keep children would be probative of her motive to testify falsely); United States v DiMarzo, 80 F3d 656, 660 (1st Cir 1996)(held, no error to refuse to allow drug defendant to put in evidence of harsh sentence that he faced in order to show motive of others to put the blame on him in order to escape prosecution themselves; "‘providing jurors sentencing information invites them to ponder matters that are not within their province, distracts them from their factfinding responsibilities, and creates a strong possibility of confusion'").53. Impeachment with evidence of alcoholism or drug addiction. See United States v DiPaolo, 804 F2d 225, 229-30 (2d Cir 1986) (trial court properly refused to permit defendant to impeach prosecution witness on basis of drinking problem); Springer v Reimers, 4 Cal App 3d 325, 339, 84 Cal Rptr 486, 494-95 (1970) (trial court erred in admitting evidence that witness had drinking problem where impeaching party did not show witness intoxicated when observing events about which he testified or when testifying) Cf. Loughan v. Firestone Tire & Rubber Co, 749 F2d 1519, 1522-24 (11th Cir 1985)(evidence that employee regularly drank on the job from cooler of beer he carried on his truck was admitted at trial for purposes of showing that employee was impaired at time of accident; held, showing of regularity was sufficient to establish habit under Rule 406, and evidence was admissible despite absence of direct evidence that employee drank on the day of the accident)

54. Should a prior consistent statement by a witness be freely admissible to bolster the witness? See Tome v. United States, 115 S. Ct. 696 (1995). Compare California Evidence Code § 791. Richard D. Friedman, Prior Statements of a Witness: A Nettlesome Corner of the Hearsay Thicket, 1995 The Supreme Court Review 277 (1996).

55. Should the prosecutor be permitted to call a witness to the stand, knowing that the witness will give testimony unfavorable to the prosecution, solely for the purpose of impeaching the witness with otherwise inadmissible evidence? Suppose that the prosecutor does not know with certainly what the witness will say? Does the prosecutor's motive matter? What should defense counsel do, if anything, to prevent the prosecutor from calling a witness solely to impeach? See United States v. Hogan, 763 F.2d 697 (5th Cir. 1985)(error to allow prosecutor to call witness solely for purpose of impeaching witness with otherwise inadmissible inconsistent statement). See also United States v Logan, 121 F3d 1172, 1175-6 (8th Cir 1997)(government proffered prior inconsistent statements of government witness as impeachment evidence; court held that government's motive in calling witness was irrelevant, sole issue being whether evidence was prejudicial under Rule 403; here, where value of evidence for impeachment was minimal and danger of prejudice high, error to admit).(Note: If you write a paper on the topic, you need not answer the exact questions asked in this paragraph. The questions are just a way of giving you a feel for the topic.)

56. Rule 610 objections to evidence related to religious belief or membership in religious organizations. Starting points: United States v. Brown 41 M.J. 1; 1994 CMA LEXIS 119(1994)(religious belief offered by defendant to show he was unlikely to commit drug crime; not an impeachment case); State v. Towery, 186 Ariz. 168; 920 P.2d 290 (1996)(defense attempt to cross-examine prosecution witness about alleged satanic beliefs).

COMPETENCY

57. Under what conditions, if any, should testimony that has been hypnotically refreshed be admitted? See, e.g., State v. Evans, 450 SE2d 47, 51 (SC 1994) ("If post-hypnotic testimony is shown to be independent of the dangers associated with hypnosis [suggestibility, confabulation, and memory hardening] the admission of the testimony does not violate the Confrontation Clause"; a court must examine whether trial testimony is "generally consistent" with pre-hypnotic statements, considerable circumstantial evidence corroborates post-hypnotic testimony, and responses to cross-examination "generally were not the automatic responses of a preconditioned mental process"); Borawick v. Shay, 842 F.Supp. 1501 (D.Conn. 1994).

58. Admissibility of testimony given through a communication facilitator aiding a mentally handicapped witness. See Kansas v. Warden, , 891 P.2d 1074, 257 Kan. 94 (Kan 1995) (held, trial court properly allowed autistic child witness to testify through a "facilitator" who guided witness's hands while he typed; however, since child could sign "yes" or "no" by gesturing he should have been required to independently sign yes or no; moreover, facilitator should generally be prevented from hearing questions asked to child in order to ensure that answer comes from child, not facilitator).

EXPERT AND SCIENTIFIC EVIDENCE

59. Application of Daubert test to nonscientific expert testimony. Carmichael v Samyang Tire, Inc, 131 F3d 1433 (11th Cir 1997), cert granted sub nom Kumho Tire Co., Ltd v Carmichael, --- SCt ----, 1998 WL 185220, 66 USLW 3793 (Jun 22, 1998)(held, Daubert does not apply to testimony of tire failure expert because expert's testimony was not scientific; though physics and chemistry are relevant to tire failure, the expert did not express any scientific opinion about these fields); McKendall v Crown Control Corp, 122 F3d 803, 807 (9th Cir 1997)(held, Daubert only applies to scientific evidence, not other specialized knowledge; plaintiff's expert could testify about forklift design on basis of having investigated hundreds of forklift accidents without worrying about Daubert factors); Watkins v Telsmith, Inc, 121 F3d 984, 990-1 (5th Cir 1997)(Daubert factors of testing, peer review, and general acceptance are relevant to assessing engineering expert's testimony on product design; experts cannot escape scrutiny merely by claiming that expertise is based on experience)..

60. Standard of review for Daubert decisions. In General Electric Co v Joiner, 118 S Ct 512 (1997), the Supreme Court resolved a split in the circuits about the standard of review applicable to appellate court re-examination of Daubert determinations. It held that the abuse of discretion standard ordinarily applicable to review of evidentiary rulings is the proper standard of review. Applying that standard, it upheld a district court's decision excluding expert testimony linking "PCBs" to lung cancer.

61. Under what circumstances should an appellate court consider scientific data not presented to the court below? United States v. Bonds, 12 F.3d 540 (6th Cir. Dec. 15, 1993); Fishback v. People, 851 P.2d 884 (Colo. 1993).

62. Polygraph evidence. For a thoughtful opinion that extensively reviews the scientific evidence and decides to retain a per se rule against polygraph evidence, see State v. Porter, 241 Conn. 57, 698 A.2d 739 (1997) See also United States v. Piccinonna, 885 F.2d 1259 (11th Cir. 1989)(en banc), and United States v. Posado, 57 F.3d 428 (5th Cir. 1995); United States v. Crumby 895 F. Supp. 1354 (D Ariz 1995). Cf. United States v. Scheffer, 118 S.Ct. 1261 (1998), in which the Supreme Court reviewed a case in which a military trial judge excluded polygraph evidence offered by the accused in a court-martial. The accused claimed that Military Rule of Evidence 707, which makes polygraph evidence inadmissible, unconstitutionally abridged his right to present a defense. Reversing the United States Court of Appeals for the Armed Forces, the Supreme Court upheld Rule 707.

63. After Daubert, should testimony by documents examiners be excluded on grounds that it lacks scientific validity? See United States v Jones, 107 F3d 1147, 1157 (6th Cir 1997)(upholding admissibility of handwriting identification over Daubert challenge; held, Daubert factors do not apply to this field of expertise), cert denied, 117 S Ct 2527 (1997); United States v. Starzecpyzel, 880 F.Supp. 1027 (S.D.N.Y. 1995)(McKenna, J.)(similar case; extensive discussion).
.
64. False confession expertise. For an interesting application of Daubert to social science testimony, see United States v Hall, 974 F Supp 1198 (CD Ill 1997). There, the district court ruled on a pretrial motion to exclude the testimony of Dr. Richard Ofshe. Dr. Ofshe, a social psychologist, was offered as an expert on police interrogation techniques and false confessions. He was prepared to testify, based on extensive study, to various aspects of the phenomenon of false confessions, including the existence of "identifiable coercive police interrogation techniques which are likely to produce false confessions." At the first trial, the district court had excluded Dr. Ofshe's testimony, and on appeal the Seventh Circuit had remanded with instructions to conduct a full Daubert hearing. United States v Hall, 93 F3d 1337, 1344-45 (7th Cir 1996). On remand, the district court wrote that though Daubert is applicable to the social sciences, the relevant screening criteria have to be tailored to the subject matter. Many social scientists rely primarily on "real-world experience rather than experimentation," 974 F Supp at 1202, and in assessing the testimony of social science experts the courts need not consider the same factors that they would consider in assessing "Newtonian" hard science. They should, however consider at a minimum the "longevity" of the expert's field, the amount of literature, the methods of peer review, the quantity of "observational or other studies," the "comparative similarity of observations obtained, the reasons why those studies are deemed valid and reliable, and the general consensus or debate as to what the raw data means." Id at 1203. Applying these criteria on remand, the court held Dr. Ofshe's testimony to be admissible. Dr. Ofshe noted in his Daubert hearing testimony that controlled laboratory experiments were difficult to conduct for ethical reasons, and the research on which he relied was mostly field work in which actual confessions were examined. Researchers determined that certain confessions were false (often because the confessor's post- admission narrative description of crime facts did not match known facts), then examined the interrogation methods used to see which ones were associated with false confessions. Id. at 1204. The district judge, noting that Dr. Ofshe did not propose to state an opinion on the ultimate issue of whether Hall's confession was false held that he would be permitted to testify about the association of false confessions with certain police interrogation techniques. Id at 1205. See James R. Agar, The Admissibility of False Confession Expert Testimony, 1999 Army Law 26. 9/22/00: James Mann, a student in my evidence course, is researching this for the HLJ.

65. Expert testimony about suggestive interview techniques. See United States v Rouse, 111 F3d 561, 572 (on rehearing) , cert denied, 118 S Ct 261 (1997)(affirming lower court in 3-way split, majority finds error in excluding defense expert testimony about suggestive nature of pretrial interviews of alleged child sex abuse victims, but only one member of panel considered error to be reversible).

66. Admissibility of evidence of dependent personality disorder to show that the defendant did not have the mental state required to commit a crime. United States v. Angelina Didomenico, 985 F.2d 1159 (2d Cir. 1993).

67. Expert testimony about behavior of sexually abused children. See United States v Bighead, 128 F2d 1329 (9th Cir. 1997) (divided panel, over Judge Noonan's dissent, upholds admission of testimony of director of forensic services at Children's Advocacy Center; witness testified, based on experience with over 1,300 people who claimed to have been victims of child abuse, that delayed disclosure was common; held, Daubert test did not apply to "specialized" as opposed to "scientific" knowledge)

68. Admissibility of testimony by patient and therapist in cases in which a prosecution is based upon therapeutic revival of a long-repressed memory. See State v Hungerford, 697 A2d 916, 925, 930 (NH 1997), where the Court held that it was proper to exclude testimony of witness's alleged repressed memories of child sex abuse. The opinion indicates that testimony that relies on repressed memories that have been therapeutically retrieved must survive screening in a pretrial hearing in which the issue of the accuracy of memory is assessed considering Daubert-like factors, including whether the accuracy of such retrievals has been empirically tested, the error, and peer review. It also listed several relevant non-Daubert factors, such as corroboration. Cf. Logerquist v. McVey, 1 P.3d 113 (Ariz. 2000)(held, in federal rules state, clinical testimony about repressed memory phenomena is not subject to Daubert or Frye test and is admissible; in the author's view, the court is too permissive in this instance about the admissibility of dubious expert testimony). See generally Elizabeth Loftus & Katherine Ketcham, The Myth of Repressed Memory (1994); Frederick Crews, The Memory Wars: Freud's Legacy in Dispute (1995); Jonathan D. Gordon, Admissibility of Repressed Memory Evidence by Therapists in Sexual Abuse Cases, 4 Psychology, Public Policy, And Law 1198 (1998).

69. Hedonic damage expertise. On the admissibility, after Daubert, of expert testimony about the value of the pleasure of life, see McGuire v. City of Santa Fe, 954 F Supp 230, 234 (D NM 1997)(Plaintiff in employment discrimination case offered expert testimony about hedonic damage; held, Daubert analysis applies to expert testimony about hedonic damage and testimony is inadmissible).

70. Expert testimony on the law. For a useful discussion, see Judge Sandra L. Lynch's opinion in Nieves-Villanueva v. Soto-Rivera, 133 F3d 92 (1st Cir 1997). Judge Lynch wrote that Rule 704(a) did not abolish the traditional rule against expert opinion on questions of domestic law, though she could imagine that in rare cases involving "highly complex and technical matters" a trial judge might utilize "limited and controlled mechanisms" to permit some testimony "seemingly in variance with the general rule." Id at 101. However, in the case at bar, an employment discrimination case in which a defense witness testified about holdings of cases (and then in a misleading fashion), the rule against expert opinions on law was clearly violated. See also United States v. Wilson, 133 F3d 251, 265-266 (DC Cir 1997)(Prosecution for violation of Clean Water Act; held, though government witnesses administering complex regulations understandably refer to those regulations in describing their actions and motives, their testimony should have been limited to "facts of history, practices and procedures followed by them in their work" and to matters in which they had "demonstrated expertise"; district court should not have permitted experts to "give opinions on what the law means or how it is to be interpreted"; the role of instructing the jury on the law belongs exclusively to the judge). Relevant law review commentary: Thomas E. Baker, The Impropriety of Expert Witness Testimony on the Law, 10 Kan. L. Rev. 325 (1992); Howard G. Pollack, The Admissibility and Utility of Expert Legal Testimony in Patent Litigation, 32 Idea 361-381 (1992); Note, Expert Legal Testimony, 97 Harv L Rev 797 (1984).

71. Expert testimony by prosecution witnesses about the methods of persons engaged in criminal enterprises or the characteristics of criminal enterprises. Compare United States v. Scop, 846 F.2d 135, 139-40, modified, 856 F.2d 5 (2d Cir. 1988) with United States v. Russo, 74 F.3d 1383 (2d Cir 1996)(expert testimony in securities manipulation cases); see also State v. Odom, 560 A2d 1198 (N.J. 1989). See Note, The Admissibility of Ultimate Issue Expert Testimony by Law Enforcement Officers in Criminal Trials, 93 Colum L. Rev. 231 (1993).

72. Computer animations and simulations. Compare Byrd v Guess, 137 F3d 1126 (9th Cir 1998)(in civil action arising from police shooting of decedent, animation admitted despite plaintiffs' assertion that it depicted decedent as a "nutty android"; court notes that all facial expressions had been removed) and Hinkle v. City of Clarksburg, W Va, 81 F3d 416, 425, (4th Cir 1996)(simulation admissible; court notes that trial judge had instructed jury that " [t]his animation is not meant to be a recreation of the events, but rather it consists of a computer picture to help you understand Mr. Jason's opinion which he will, I understand, be giving later in the trial. And to reinforce the point, the video is not meant to be an exact recreation of what happened during the shooting, but rather it represents Mr. Jason's evaluation of the evidence presented.") with Racz v. R.T. Merryman Trucking, 1994 WL 124857, *5 (E.D. Pa. 1994)(expert's decision to discount testimony of a witness who reported seeing the trailer portion of the truck encroach into the decedent's lane of travel "is magnified and given enhanced credibility when such decision becomes part of the data upon which an animated visual representation is based...Because the expert's conclusion would be graphically depicted in a moving and animated form, the viewing of the computer simulation might more readily lead the jury to accept the data and premises underlying the defendant's expert's opinion, and, therefore, to give more weight to such opinion than it might if the jury were forced to evaluate the expert's conclusions in light of the testimony of all the witnesses.")Computer animations and simulations. See Robert D Brain and Daniel J Broderick, Demonstrative Evidence in the Twenty-First Century: How to Get It Admitted, American Bar Association, Section of Law Practice Management, Winning with Computers: Trial Practice in the 21st Century 369 (1991)(John C Tredennick, Jr, Ed); Michael G Karnavas & Alexander Jason, Courtroom Computer Animation and Simulation: Selling Your Case with High-Tech Persuasion, 20 The Champion 5 (1996).

MISCELLANEOUS

73. Sequestration orders. A party is ordinarily entitled, upon request, to have the opponent's witnesses excluded while other witnesses testify, unless the witness is a party, the designated representative of a corporate party, or a person essential to the preparation of the opponent's case. See Fed R Evid 615; Opus 3 Limited v. Heritage Park, 91 F3d 625 (4th Cir. 1996)(held, no abuse of discretion to sequester defendant's expert witness where witness was fact as well as opinion witness and no showing had been made that witness's presence was "essential") . Violation of a sequestration order can be grounds for exclusion of the witnesses testimony. Other, less drastic, sanctions may also be applied. For example, in United States v McMahon, 104 F3d 638, 640 (4th Cir 1997), a witness who was under a sequestration order sent his secretary to the trial to take notes and report back to him. She also obtained daily transcripts and gave them to the witness. When the district court judge discovered what she was doing, the judge barred the witness, who was the father of the defendant, from testifying. The ruling was later changed to allow the witness to testify, subject to cross-examination by the prosecution about what he had done. However, the district judge held the witness in criminal contempt after trial. The contempt ruling was upheld on appeal. Id at 645. A dissenting member of the panel thought that the sequestration order, which said that the motion to sequester was granted and that "the Defendant's witnesses will be excluded from the courtroom," was not enough to warn the witness that he could not otherwise find out what happened in the courtroom. Id at 646.

74. Curative admissibility -- the argument that the opponent has opened the door to otherwise inadmissible evidence by itself putting in inadmissible evidence. See, e.g., Clark v. State, 629 A.2d 1239 (Md. 1993).

75. Has the Supreme Court adopted an unwise "plain meaning" approach to interpretation of the Federal Rules of Evidence? References: Randolph N. Jonakait, The Supreme Court, Plain Meaning, and the Changed Rules of Evidence, 68 Texas L. Rev. 745 (1990); Glen Weissenberger, The Supreme Court and the Interpretation of the Federal Rules of Evidence, 53 Ohio St. L.J. 1307 (1992); Edward J. Imwinkelried, A Brief Defense of the Supreme Court's Approach to the Interpretation of the Federal Rules of Evidence, 27 Indiana L. Rev. 267 (1993).

76. Are police experts given too much leeway in telling a jury how a defendant's conduct should be interpreted? Reference: Note, The Admissibility of Ultimate Issue Expert Testimony by Law Enforcement Officers in Criminal Trials, 93 Colum L. Rev. 231 (1993).

77. Should prior offenses be freely admissible in sex offense cases? In other cases? Reference: Myrna S. Raeder, American Bar Association Criminal Justice Section Report to the House of Delegates, 22 Fordham Urban Law Journal 343 (1995); other articles cited on the first page of this syllabus. There is a preemption danger, you might be able to make an original contribution by reporting on developments since Rules 413-415 became effective on July 9, 1995.

78. Rape shield issues --
[a] Should evidence of a rape victim's sexual history with persons other than the accused to be admitted in any circumstances? Reference: Harriett R. Galvin, Shielding Rape Victims in the State and Federal Courts: A Proposal for the Second Decade, 70 Minn. L. Rev. 763 (1986).
[b] Consider the new federal rape shield law (Fed. R. Evid. 412, effective December 1, 1994). What changes were wrought by new Rule 412? Are they wise? See Pub.L. No. 103-322, 108 Stat. 1796, reproduced in Waltz & Park, Cases and Materials on Evidence, Appendix E, p. 1 (8th Ed. 1995). United States v. Platero, 72 F.3d 806 (10th Cir. 1995)

79. Evidence in child abuse cases -- e.g., Should child hearsay be freely admissible in child abuse cases? Should there be a procedure allowing children to testify out of court? Should admissibility of child testimony be conditioned upon following safeguards during out-of-court interrogation? Reference: Child Witnesses and the Confrontation Clause, 15 Law and Human Behavior 13 (1993); Jean Montoya, Something Not So Funny Happened on the Way to Conviction: The Pretrial Interrogation of Child Witnesses, 35 Ariz. L. Rev. 927 (1993); Michael H. Graham, The Confrontation Clause, the Hearsay Rule, and Child Sexual Abuse Prosecutions: The State of the Relationship.72 Minn. L. Rev. 523 (1988). See generally Lucy S. McGough, Child Witnesses: Fragile Voices in the American Legal System (Yale Univ. Press 1994).

80. Should a process be established under which criminal depositions can be taken, in the absence of the defendant, to preserve prosecution testimony when there is a danger of witness intimidation? Reference: Michael H. Graham, Witness Intimidation: The Law's Response (1985).

81. Is the test for admissibility of scientific evidence set forth by the Supreme Court in the Daubert case an improvement over the traditional Frye test? Reference: David L. Faigman, Elise Porter, Michael J. Saks, Check Your Crystal Ball at the Courthouse Door, Please: Exploring the Past, Understanding the Present, and Worrying about the Future of Scientific Evidence, 15 Cardozo L. Rev. 1799 (1994); Bert Black, Francisco J. Ayala, and Carol Saffran-Brinks, Science and the Law in the Wake of Daubert: A New Search for Scientific Knowledge, 72 Texas Law Review 715 (1994).

82. Should the rules of evidence be changed to encourage the appointment of unbiased, nonpartisan experts? Reference: Samuel R. Gross, Expert Evidence, 1991 Wisconsin Law Review 1221. Should other measures be taken to reduce the impact of biased expert testimony? Stephen D. Easton, Ammunition for the Shootout with Th Hired Gun's Hired Gun: a Proposal for Full Expert Witness Disclosures, 32 Ariz. St. L.J. 465 (2000).

83. Do Rules 104(a) and 104(b) establish a sensible division between issues to be decided by the judge and issues to be decided by the jury? Reference: Garland & Schmitz, Of Judges and Juries: A Proposed Revision of Federal Rule of Evidence 104, 23 UC Davis L. Rev. 77 (1989).

84. Should experts be allowed to recount hearsay statements of others as part of their expert testimony? Ronald J. Allen and Joseph S. Miller, The Common Law Theory of Experts: Deference or Education, 87 Nw. U. L. Rev. 1131 (1993); Paul R. Rice, Expert Testimony: A Debate Between Logic or Tradition Rather than Between Deference or Education, 87 Nw. U. L. Rev. 1166 (1993); Richard Lempert, Experts, Stories, and Education, 87 Nw. U. L. Rev. 1169 (1993); Edward Imwinkelried, Education and Deference: An Unhelpful Dichotomy, 87 Nw. U. L. Rev. 1169 (1993); Ronald L. Carlson, In Defense of a Constitutional Theory of Experts, 87 Nw. U. L. Rev. 1182 (1993).

85. Should a DNA expert be permitted to testify that, to a scientific certainty, the defendant was the source of the DNA found at the scene? If not, what form should DNA testimony take? Reference: Koehler, Error and Exaggeration in the Presentation of DNA Evidence at Trial, 34 Jurimetrics 21 (1993).

86. How should statistical evidence about tests that identify a defendant as the perpetrator be presented to the jury? David McCord, A Primer for the Nonmathematically Inclined on Mathematical Evidence in Criminal Cases: People v. Collins and Beyond, 47 Wash. & Lee L.Rev. 741 (1990); Finkelstein & Fairley, A Bayesian Approach to Identification Evidence, 83 Harvard Law Review 489 (1970); Tribe, Trial by Mathematics: Precision and Ritual in the Legal Process, 84 Harv. L. Rev. 1329 (1971); Pemel v. Walter, 303 Or. 262, 279; 735 P.2d 1209, 1219 (1987); State v. Skipper, 228 Conn. 610, 637 A.2d 1101 (1994)(See especially footnote 18); Koehler, Error and Distortion in the Presentation of DNA Evidence, 34 Jurimetrics J. 212 (1993).

87. Has the Supreme Court gone too far in letting in hearsay evidence in the face of a confrontation clause challenge? Reference: Margaret A. Berger, The Deconstitutionalization of the Confrontation Clause: A Proposal for a Prosecution Restraint Model, 76 Minn. L. Rev. 557 (1992); Eileen A. Scallen, Constitutional Dimensions of Hearsay Reform: Toward a Three-Dimensional Confrontation Clause, 76 Minn. L. Rev. 623 (1992); Eleanor Swift, Smoke and Mirrors: the Failure of the Supreme Court's Accuracy Rational in White v. Illinois Requires a New Look at Confrontation, 22 Capital Univ. L. Rev. 45 (1993).

88. Should rape trauma syndrome testimony be admissible? Under what conditions? Bridget A. Clarke, Making the Woman's Experience Relevant to Rape: The Admissibility of Rape Trauma Syndrome in California, 39 UCLA L. Rev. 251 (1991).

89. Admissibility and weight of testimony of recovered memories of childhood abuse. See Comment, True or False: Expert Testimony on Repressed Memory, 28 Loy. L.A. L. Rev. 1345 (1995).

90. Has the California Supreme Court gone too far in permitting the prosecution to put in evidence of other offenses by the defendant? See Miguel A. Mendez & Eward J. Imwinkelried on People v. Ewoldt, 28 Loyola L. Rev.. 437 (1995).

91. Should an expert be permitted to testify about social science data concerning the accuracy of eyewitness identification? Reference: Note, When Seeing is Not Believing: The Case for Eyewitness Expert Testimony, 81 Georgetown L.J. 741 (1993).

92. Should Rule 104(b) be altered to avoid the danger that useful evidence will be wrongfully excluded? For example, should the rule be revised to provide that "The court shall admit evidence over a relevancy objection upon, or subject to, a finding that the evidence could rationally influence a reasonable person's assessment of any fact that is of consequence to the determination of the action"? Reference: Ronald J. Allen, The Myth of Conditional Relevancy, 25 Loy. L.A. L.Rev. 871 (1992).

93. Do the rules about waiver of attorney-client privilege create a hardship for attorneys who inadvertently disclose information during discovery? Reference: Richard L. Marcus, The Perils of Privilege: Waiver and the Litigator, 84 Mich. L. Rev. 1605 (1986); Roberta M. Harding, Waiver: A comprehensive analysis of a consequence of inadvertently producing documents protected by the attorney-client privilege. 42 Catholic University Law Review 465 (1993).

94. Should prior convictions ever be admissible to impeach a testifying defendant? References: Richard Friedman, Character Impeachment Evidence: Psycho-Bayesian [!?] Analysis and A Proposed Overhaul, 38 UCLA L. Rev. 637, 655-64 (1991); Miguel A. Mendez, California's New Law on Character Evidence: Evidence Section 352 and the Impact of Recent Psychological Studies, 31 UCLA L. Rev. 1003 (1984).

95. Should the rules about making and preserving objections be changed to reduce the burden on trial lawyers? On trial judges? to clarify the effect of failing to make a specific objection or offer of proof? Reference: Edward R. Becker & Aviva Orenstein, The Federal Rules of Evidence After Sixteen Years--The Effect of "Plain Meaning" Jurisprudence, the Need for an Advisory Committee on the Rules of Evidence, and Suggestions for Selective Revision of the Rules, 60 Geo. Wash. L. Rev. 857 (1992) (text accompanying notes 244-45).

96. Impact of Daubert on social and behavioral science evidence. See James T. Richardson, Gerald P. Ginsburg, Sophia Gatowski, and Shirley Dobbin, the Problems of Applying Daubert to Psychological Syndrome Evidence, 79 Judicature 10 (1995)

97. Sexual history evidence on the issue of "unwelcomeness" in sexual harassment cases. Paul Nicholas Monnin, Proving Welcomeness: the Admissibility of Evidence of Sexual History in Sexual Harassment Claims under the 1994 Amendments to Federal Rule of Evidence 412, 48 Vand. L. Rev. 1155(1995)

98. Evaluation of the effectiveness of jury instructions about evidence using social science methods. Starting point: Kerri L. Pickel, Inducing Jurors to Disregard Inadmissible Evidence: A Legal Explanation Does Not Help, 19 Law and Human Behavior 407 (1995)

99. Discovery of the plaintiff's psychotherapy records in sexual harassment cases. David A. Robinson, Discovery of the Plaintiff's Mental Health History in an Employment Discrimination Case, 16 New Eng. L. Rev. 55 (1994), Vinson v. Superior Court, 43 Cal. 3d 833 (1987).

100. A feminist critique of Rule 413. Katharine K. Baker, Once a Rapist? Motivational Evidence and Relevancy in Rape Law, 110 Harv. L. Rev. 563, 578 (1997)

LATE ADDITIONS THAT HAVE NOT BEEN CLASSIFIED:

101. "Sanitizing" witnesses. On instructing witnesses to re-phrase testimony in order to avoid prejudicial characterizations, see United States v. Neill, 166 F.3d 943, 946 (9th Cir. 1999)(held, in case in which defendant's residence in work release center was relevant because, he was absent from the center on the night of the crime, it was error to allow witnesses to refer to the work release center in testimony because that reference revealed that defendant had a prior conviction; government should have prepared witnesses to testify using the phrase "Residential Program" instead of "Work Release Center")(Comment: Though this sort of tinkering with testimony can reduce prejudice in the particular case, it does require further rehearsal and filtering of testimony by lawyers, thus further reducing the spontaneity of testimony; it enhances the difficulty of demeanor judgments because witnesses are testifying using rehearsed synonyms instead of their own natural expressions; and it may even have unforeseen prejudicial consequences in future cases if jurors come to believe that designations like "residential program" are really judicially-imposed euphemisms for more ominous involvements. Cf. Bruce A. Green, "The Whole Truth?: How Rules of Evidence Make Lawyers Deceitful, 25 Loyal LA Rev 699 (1992).)

102. Baker v. Dalkon Shield Claimants Trust, 156 F.3d 248, 254 (1st Cir. 1998)(held, reversible error to exclude blood test indicating that, at some time before or after alleged injury from using Dalkon Shield IUD, plaintiff had had sexually transmitted disease; taken in conjunction with other evidence, the disease could have furnished an alternative explanation for plaintiff's injury)

103. Rule 403 balancing of embarrassing personal-life evidence in emotional distress cases. Nichols v. American National Insurance Co., 154 F.3d 875, 885 (8th Cir.1998)(held, in case in which plaintiff claimed emotional distress from sexual harassment, it was a violation of Rule 403 to admit evidence that 8 years earlier plaintiff had had an abortion, even if latter could have provided an alternative explanation for emotional distress on grounds that it was contrary to plaintiff's Catholic beliefs)

104. Cross of character witness. United States v. Holt, 170 F.3d 698 (7th Cir. 1999)(held, in case in which part-time police officer was charged with conspiring to transfer an automatic weapon, it was permissible to allow defendant's character witness, who testified to defendant's good reputation for law-abiding conduct, to be questioned defendant's nonpayment of child support and about sexual harassment allegations against the defendant); United States v. Guzman, 167 F.3d 1350, 1352-53 (11th Cir. 1999)(error, though harmless, to allow character witness to be cross-examined with hypothetical questions asking whether opinion would change if defendant guilty of the crime charged).

105. Other crimes evidence. United States v. Mills, 138 F.3d 928, 935-36 (11th Cir. 1998)(held, error to receive evidence that defendant in Medicare fraud case had hidden jewelry from customs inspectors to avoid duty; trial judge's erroneous theory was that prior smuggling incident established defendant's propensity to conceal truth and hence her intent in the Medicare fraud case)

106. Prior assaults upon murder victim. Normally prior assaults upon a murder victim by the defendant accused of murder are admissible under Rule 404(b), for example to show hostility that gives a motive for the murder. Sometimes, however, courts will exclude assaults that are remote in time. For an unusually restrictive attitude toward this sort of evidence, see Spencer v. State, 703 N.E.2d 1053, 1055-56 (Ind. 1999), where the court, while recognizing that normally the prior assaults would be admissible as showing something other than character, held that it was error, though harmless, to admit assaults occurring three years before alleged murder because they were two remote, while indicating that an attack that occurred only two years before was properly admitted.

107. Other crimes evidence – one drug offense to prove another. . United States v. Burch, 156 F.3d 1315, 1324 (D.C. Cir. 1998)(Wald, J.)(held, prior conviction for attempted possession of crack cocaine with intent to distribute admissible to show intent in case charging possession of crack cocaine with intent to distribute)

108. Preventing admission of other crimes evidence by conceding element. United States v. Sweeney, 48 MJ 117, 120 (USCAAF 1998)(stalking of first wife admissible to show intent to stalk in case charging stalking of second wife, despite defense's decision not to deny element of stalking but instead to concentrate on separate element of putting victim in fear of bodily harm). But cf. Wynn v. State, 718 A.2d 588 (Md. 1998)(held, reversible error to put in evidence of another burglary to show absence of mistake or accident in case in which defendant was charged with burglary; defense did not involve a claim of mistake or accident)

109. Rule 410 -- waiver. See also United States v. Burch, 156 F.3d 1315, 1324 (D.C. Cir. 1998)(Wald, J.)(waiver of defendant's rights under Rule 410 in plea agreement still binding even after defendant allowed to withdraw from other aspects of plea agreement, where withdrawal was on grounds other than involuntariness of agreement).

110. Prior safety history. Moody v. Haymarket Associates, 723 A.2d 874, 876 (Me 1999)(held, where plaintiff's claim in slip and fall case turned upon allegedly negligent conduct of janitor on particular day in maintaining floor, evidence of no accidents at same location for ten years was not sufficiently relevant to be admissible).

111. Private knowledge conveyed to other jurors under Rule 606(b). McGillen v. Plum Creek Timber Co., 964 P.2d 18, 22 (Mont. 1998)(held, juror's private knowledge of about character of one of the trial witnesses, improperly conveyed to other jurors, was a "internal," not "external," influence, and hence not subject to testimony under Montana counterpart of FRE 606(b))

112. Out of court statements to show notice. Rotolo v. Digital Equipment Corporation, 150 F.3d 223, 225 (2d Cir. 1998)(trial judge allowed videotape of experts discussing danger that keyboard could cause repetitive stress injury to be played at trial; held, reversible error to allow videotape, prepared for internal use of Apple Computer, to be played before jury in trial in which keyboard made by another company was claimed to have caused injury; not admissible as nonhearsay notice evidence in absence of showing that defendant should have known about it; moreover, no hearsay exception applies, Rule 807 being inapplicable because of failure to give pretrial notice)

113. Agency admissions -- employee-to-employee communications. Williams v. Pharmacia, Inc., 137 F.3d 944 (7th Cir. 1998)(held, error, though harmless, to allow plaintiff in sex discrimination case to put in evidence that other female employees had complained about boss's conduct and about his failure to act on complaints; matter was not within the scope of employment and hence did not qualify as agency admission).

114. Agency admissions -- non-employee as conduit. Moore v. KUKA Welding Systems & Robot Corp., 171 F.3d 1073 (6th Cir. 1999)(held, non-employee who was requested by an employee of the company to pass a message along to another employee of the company was an agent of the company for purposes of using FRE 801(d)(2) to put the message into evidence).

115. Laying foundation for another business's records. MRT Construction, Inc. v. Hardrives, Inc., 158 F.3d 478, 483 (9th Cir. 1998)(Lay, J.)(client could lay foundation for bills of law firm if client relied on accuracy of bills in client's own business).

116. Hospital records as business records. Merrow v. Bofferding, 581 N.W.2d 696, 701-03 (Mich. 1998) (plaintiff claimed injury occurred after door's glass broke as he was using his hand to stop door from closing on young child; hospital record stated that plaintiff put his arm through plate glass window after "fight with his girlfriend"; held, though hospital record fits business record exception, hearsay-within-hearsay in record must be shown to fit another exception; reference to fight with girlfriend had no medical relevance" and were not admissible under MRE 803(4); statement also not admissible to impeach or as admission of a party because of inadequate foundation showing that plaintiff was the person who made the statement).

117. Medical diagnoses in hospital records. Lovell v. Beavers, 987 S.W.2d 660 (Ark. 1999)(held, because of potential for jury confusion, trial judge has discretion under Rule 403 to exclude unexplained medical records even if the records meet the requirements of the business records exception to the hearsay rule).

118. Curtis v. M&S Petroleum, Inc., 174 F.3d 661, 673 (5th Cir. 1999)(held, no error in trial judge's Rule 403 exclusion of state agency reports indicating that a refinery was not equipped to handle certain hazardous substances and that it did not have proper permits; there was a danger that the government report would have too much weight and the plaintiff had introduced other evidence of the deficiencies).

119. Concept of "factual findings" in public records. Ariza v. City of New York, 139 F.3d 132, 134 (2d Cir. 1998)(held, police internal affairs report based on focus group methodology not admissible to show police bias because it did not contain factual findings based upon an authorized factual investigation)

120. Foundation for agency admissions. Pittman v. Grayson, 149 F.3d 111, 123-24 (2d Cir. 1998)(plaintiff sued airliner after children abducted by parent in domestic dispute, claiming airline knew that plaintiff had court order prohibiting barring children from leaving country; held, statement by flight attendant on flight in question to news producer that airline personnel had helped "sneak" children out service entrance at airport inadmissible against airline because declarant later told interviewer that this was "just a story that I have heard" and no showing was made that the hearsay-within-hearsay from declarant other than attendant fit an exception or exemption)(Author's comment: the original "sneak" statement standing alone would have qualified as an admission of a party opponent, and absence of personal knowledge would not have been a problem since a showing of personal knowledge is not required when an admission of a party opponent is offered under Rule 801(d)(2). However, the subsequent "just a story" statement expressly indicated that original statement was based on statement of another, thus giving the court a basis for requiring a foundation for the interior statement under Rule 805. It would seem a natural inference that the hearsay-within-hearsay statement also came from an airline employee, but the court nonetheless held that the foundation for that statement was insufficient.)

121. Confrontation clause -- extrinsic corroboration. The U.S. Court of Appeals for the Armed Services has held that Idaho v. Wright's ban on using extrinsic corroboration to assess the trustworthiness of an out-of-court statement applies where, as in Wright, the declarant does not testify at trial; it does not apply in cases in which prior statements of a testifying declarant are admitted. See United States v. McGrath, 39 MJ 158 (1994). The military judge may, however, properly decide to look only at the circumstances surrounding the statement if the judge so chooses. See United States v. Johnson, 49 M.J. 467, 474 (U.S. Ct. App. Armed Forces 1998)(held, in child sex abuse case in which 13-year-old daughter accused father and then recanted, daughter's prior accusatory statements were properly admitted under residual exception; trial judge is free to disregard extrinsic circumstances, such as the fact that the daughter inaccurately stated that the father had dark patches on his genitalia, in assessing the trustworthiness of the statement).

122. Confrontation clause -- statements of accomplices. In Lilly v. Virginia, 119 S.Ct. 1887 (1999), the Court re-examined the application of Confrontation Clause analysis to a confession by a nontestifying accomplice offered as a declaration against interest. The confession contained some statements that were against the accomplice's penal interest and others that incriminated the defendant. The defendant, Benjamin Lilly, his brother Mark, and Mark's roommate Gary had gone on a crime spree involving theft, carjacking, robbery and murder. After arresting the three men, the police questioned them separately. Mark and Gary both made statements implicating Benjamin Lilly as leader and killer. At Benjamin Lilly's trial, the prosecution called Mark Lilly as a witness. When Mark claimed his fifth amendment privilege, the prosecution offered into evidence the statement that he had made in custodial interrogation. In the statement, Mark admitted participation in some of the crimes, but claimed that he had been drunk most of the time and named his brother Benjamin as the instigator of the carjacking and the perpetrator of the murder. The Virginia courts received the evidence as a declaration against interest, deeming it invulnerable to Confrontation attack on grounds that the declaration against interest exception was "firmly rooted." The United States Supreme Court reversed, holding that Benjamin's Confrontation rights had been violated. However, the Court was not able to muster a majority for any single theory. Four justices, joining an opinion by Justice Stevens, were ready to hold that "accomplices' confessions that inculpate a criminal defendant are not within a firmly rooted exception to the hearsay rule as that concept has been defined in our Confrontation Clause jurisprudence." 119 S.Ct. at 1899. Three others, joining an opinion by Chief Justice Rehnquist, were not willing to go so far as to say that a "genuinely self-inculpatory statement that also inculpates a codefendant" was constitutionally barred, and they felt that the case presented did not require them to disturb lower court precedent admitting "custodial confessions that equally inculpate both the declarant and the defendant" as satisfying a firmly rooted hearsay exception. Id. at 1904. They did, however, concur in reversing the conviction on the facts of Lilly, noting that not only did the case involve statements made in custodial interrogation by law enforcement personnel with a view to prosecution, but also that the statements of the declarant that were against his own penal interest were quite separate in time and place from his proffered statements incriminating his brother while shifting blame away from himself. Id. at 1904. Justices Scalia and Thomas also concurred, noting in separate opinions that even under Justice Thomas's restrictive interpretation of the Clause, under which the Confrontation right is "implicated by extrajudicial statements only insofar as they are contained in formalized testimonial material, such as affidavits, depositions, prior testimony, or confessions," the statement offered still did not past muster. Id. at 1903-04. Justice Scalia merely noted in a brief paragraph that the case was not close; Justice Thomas went on to agree with the Chief Justice that the Confrontation Clause does not impose a "blanket ban" on admission of accomplice statements that incriminate a defendant. Id.

123.

124. Privilege -- bringing another expert under the cloak of the attorney-client privilege. The attorney who hires an accountant or other expert to interpret the client's data in order to advise the client, with the expert filling a role analogous to that of a foreign language interpreter, may be able to claim that the communications are covered by the attorney-client privilege under the leading case of United States v. Kovel, 296 F.2d 918 (2d Cir. 1961)(Friendly, J.). However, usually the privilege does not cover communications with third parties who are consulted by the attorney while gathering information for the client. See United States v. Ackert, 169 F.3d 136 (2d Cir. 1999)(Leval, J.)(held, privilege does not apply where attorney was not using third party to translate or interpret information given to the attorney by the client).

125. Zolin hearings. In re General Motors Corporation, 153 F.3d 714, 716-717 (8th Cir. 1998) (held, although upon a showing of a prima facie case, court may examine documents in camera to determine whether the crime-fraud exception to the attorney-client privilege applies, it may not hold a hearing on privilege with both parties present, even after examining documents and issuing protective order; party has no right to be present at privilege hearing involving other party and information may not be revealed to opponent until after a determination that privilege does not apply).

126.

127. Waiver of spousal privilege. United States v. Madoch, 149 F.3d 596, 602 (7th Cir. 1998)(spousal communication privilege does not apply to tape-recorded phone conversations made while husband was calling wife from jail; wife should have known that inmate conversations are normally monitored);

128. Fifth amendment in civil cases -- corporate context. Curtis v. M&S Petroleum, Inc., 174 F.3d 661 (5th Cir. 1999) (5th Cir. 1999)(corporate president designated as representative by corporation took Fifth Amendment in individual capacity during deposition; held, trial judge should have given instruction that adverse inference could be drawn from assertion of privilege)

129. Journalist's privilege. Gonzales v. National Broadcasting Col, Inc.., 155 F.3d 618, 627 (2d Cir. 1998)(held, in case claiming discrimination against Hispanic drivers, journalists' privilege does not protect nonconfidential outtakes of NBC Dateline program showing defendant deputy harassing NBC reporter).

130. Compelling expert testimony. On whether an expert can be forced to give an opinion, see In re Imposition of Sanctions in Alt v. Cline, 589 N.W.2d 21, 27 (1999)(under Wisconsin law, experts cannot be compelled to give opinions except upon a showing of compelling need with a plan of reasonable compensation; even then, expert can only be compelled to give existing opinions, not to do research for the party seeking the compelled testimony)

131. Foundation for extrinsic evidence of prior inconsistent statement. State v. Martin, 964 S.W.2d 564, 568 (Tenn., 1998)(held, applying state Rule 613(b) that is identical to Fed.R.Evid. 613(b), it was error, though harmless, to admit extrinsic evidence of prior inconsistent statement without requiring impeaching part to lay traditional foundation under which witness being impeached is given prior opportunity to explain or deny statement)

132. Impeachment with evidence of specific acts. Unmack v. Deaconess Medical Center, 967 P.2d 783, 785-86 (Mont. 1998)(held, reversible error to allow impeachment of expert medical witness who was also a lawyer with evidence of improper solicitation of clients; bar discipline was not based on imputation of dishonesty)

133. Impeachment of witness with otherwise inadmissible evidence when witness's testimony has opened the door by making a sweeping claim of innocence. United States v. Lugo, 170 F.3d 996 (10th Cir. 1999)(held, in case in which defendant charged with drug offense disclaimed any involvement whatever with drugs, invoking anti-drug education by his father, could properly be impeached under FRE 609 with prior drug possession conviction). (Author's comment: the principle that a defendant who volunteers a sweeping claim of lifelong innocence has waived the right to object to evidence contradicting the claim might have been a better basis for the decision than Rule 609, since in the absence of such a claim the probative value of a prior drug offense in impeaching veracity would have been outweighed by the danger that the jury would misuse it as evidence of a propensity to be involved with drugs. See generally Frederick C. Moss, The Sweeping-Claims Exception and the Federal Rules of Evidence, 1982 Duke L.J. 61 (1982). See also

134. Impeachment of expert with evidence of fees in other cases. There is no dispute about the right of a party to cross-examine an expert about the fee being paid by the opposing party for work in the case at bar. However, an issue will sometimes arise about the extent to which the cross-examiner may, in an attempt to portray the expert as a professional witness, inquire about amounts received from other sources. See generally Wrobleski v. de Lara, 727 A.2d 930 (Md. 1999)(Wilner, J.) (held, permissible on cross-examination of opponent's expert to ask expert to state total amount received for forensic activity from all sources in year in question; opinion contains useful review of authority and extensive discussion).

135. Daubert and non-scientific experts. In a much-awaited decision, the Supreme Court addressed the proper interpretation of Daubert to experts with specialized practical knowledge in Kumho Tire Co., Ltd., v. Carmichael, 119 S.Ct. 1167 (1999). Kumho holds that Daubert applies to all experts, including non-scientific experts. The district court had granted summary judgment for the defendants after excluding the testimony of the plaintiff's tire expert. The Court held that the exclusion was justified. Although experts who base their testimony on specialized experience rather than formal scientific training need not necessarily satisfy requirements that might be imposed upon a scientist, they must nevertheless use a demonstrably valid methodology. The Daubert gatekeeping function does not disappear simply because the expert is not a scientist, though courts have flexibility in adjusting the factors mentioned in Daubert to make them appropriate for assessing the particular type of expertise proffered in the case before them. Here, the expert could not show, through publications or otherwise, that other experts supported his views about detecting tire abuse. Specifically, the expert's theory that where two of four specified signs of abuse by the owner are missing, then the cause of a tire's separation can be assigned to manufacturing defect was not supported by adequate data or explanation, nor was the expert's implicit theory that his post-accident visual and tactile inspection of the tire could determine that the tire had not been abused despite the presence to some degree of the specified signs of abuse. The Kumho case overturns prior federal cases drawing a sharp distinction between "specialized knowledge" and "scientific evidence." See, e.g., McKendall v. Crown Control Corp., 122 F.3d 803, 807 (9th Cir. 1997).

136. Hearsay through the mouth of an expert. See, e.g., United States v. Tran Trong Coung, 18 F.3d 1132 (4th Cir. 1994)(held, reversible error to allow physician-witness to testify that another physician's conclusion was "essentially the same" as his own)(warning: Pre-emption danger.)

137. Legal conclusions by experts. Okland Oil Company v. Conoco Inc.,144 F.3d 1308, 1328 (10th Cir. 1998)(plaintiff's expert properly testified on on issue of contract deceit; expert did not offer bare conclusion of fraudulent conduct but explained the basis of testimony in sufficient detail to permit the jury to arrive at independent decision); United States v. Izydore, 167 F.3d 213, 218 (5th Cir. 1999 )(held, no violation of ultimate issue rule when bankruptcy trustee, testifying as non-expert, testified that certain money taken by defendants from business was "not legally taken"; opinion did not express conclusion about ultimate issue of whether defendants were guilty of criminal fraud, but rather was trustee's opinion about whether the money belonged to them).

138. Expert testimony on credibility of witnesses. Testimony that seeks to give jurors an expert opinion on the credibility of trial witnesses is often rejected. See, e.g., Nichols v. American National Ins. Co., 154 F.3d 875, 881-82 (8th Cir. 1998)(held, testimony by defense expert in sexual harassment case that plaintiff had "poor psychiatric credibility" was impermissible invasion of jury's role of weighing evidence and determining credibility); United States v. Sanchez-Lima, 161 F.3d 545, 548-49 (9th Cir. 1998) (held, reversible error to admit Border Patrol Agent's opinion, based on training and experience, that another agent was telling the truth during post-incident interview in which other agent had allegedly pistol-whipped suspect).

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139. Right to jury trial on factual issues under Rule 412. In the controversial 1994 amendment, the rulemakers took away the trial judge's power to make factual findings about, e.g., whether the victim engaged in prior sexual conduct as alleged by the defendant, making it a jury issue. This change substantially impairs the protection offered to rape victims. The leading case is United States v. Platero, 72 F.3d 806 (10th Cir. 1995). I have not seen a good analysis of the subject. The topic is important and not preempted. See also People v. Chandler, 65 Cal. Rptr.2d 687 (1997).

140. Admissibility of evidence of victim's sexy clothing in rape cases. Note: Preemption danger. Alinor C. Sterling Undressing the Victim: the Intersection of Evidentiary and Semiotic Meanings of Women's Clothing in Rape Trials 7 Yale J.l. & Feminism 87 1995; Theresa L. Lennon et Al., Is Clothing Probative of Attitude or Intent? Implications For Rape And Sexual Harassment Cases 1993; As:clifford S. Fishman 44 Cath. U. L. Rev. 709 Consent, Credibility, and the Constitution: Evidence Relating to a Sex Offense Complainant's Past Sexual Behavior (1995); Michael John James Kuzmich 30 McGeorge L. Rev. 637 Chapter 127 Prevents Evidence of Victim's Manner of Dress in Rape Cases To Prove Consent 1999.