1.[I thank Southwestern University School of Law for allowing me to republish this article in this format.  The article originally appeared at 22 Sw. U. L. Rev. 1039 (1993).  I thank Southwestern for the summer research grant that enabled me to work on this project.  In addition to the people mentioned in the original footnote (below), I wish to thank my research assistants, Wilbur Lee, Southwestern University School of Law, Class of 1995, and Molly Appel, Southwestern University School of Law, Class of 1999, for their assistance in producing this project.]

Professor of Law, Southwestern University School of Law; B.S.B.A., J.D. Northwestern University; LL.M. Georgetown University. © 1993 by the Southwestern University School of Law.

I am indebted to: Jay A. Schmitz, Southwestern University School of Law, Class of 1989; Stephanie C. Yost, Southwestern University School of Law, Class of 1993; Raymond E. McKown, Southwestern University School of Law, Class of 1990; and Susan C. Keenberg, Southwestern University School of Law, SCALE, Class of 1992, for their insightful observations; and professors Myrna Raeder, Southwestern University School of Law, and David E. Aaronson, American University School of Law, for their helpful comments. This Article is the result of a summer research grant from Southwestern University School of Law.

2. The formulation of these questions, particularly questions two and three, are based upon an approach taken by the late John Kaplan in his teacher's manual for David W. Louisell et al., Cases and Materials on Evidence (1st ed. 1968).

3. This hypothetical, used to explain probative value, is from Edmund M. Morgan, Basic Problems of Evidence 185-88 (1961), reprinted in Jon R. Waltz & Roger C. Park, Cases and Materials on Evidence 69-70 (8th ed. 1995).

4. Fed.R.Evid. 401.

5. Fed.R.Evid. 403. As will be more fully discussed later, Rule 403 is sometimes referred to as legal relevance and is the subject of the fourth question.

6. Fed.R.Evid. 401.

7. Fed.R.Evid. 403 (emphasis added).

8. See Fed.R.Evid. 403 advisory committee's note.

9. It is useful here to consider the distinction between direct and circumstantial evidence. Direct evidence, usually testimony, is evidence that, if believed, resolves a matter in issue. Circumstantial evidence may also be in the form of testimony, but even if the circumstances depicted as true are true, additional reasoning is required to accept the proposition to which it is directed. John W. Strong et al., McCormick on Evidence s 185, at 369 (4th ed., student ed., 1992). As McCormick notes, in terms of the distinction between circumstantial and direct evidence, "direct evidence from a qualified witness offered to help establish a provable fact can never be irrelevant. Circumstantial evidence, however, can be offered to help prove a material fact, yet be so unrevealing as to be irrelevant to that fact." Id. Finally, note that the value of direct and circumstantial evidence is the same: "Both direct evidence and circumstantial evidence are acceptable as a means of proof. Neither is entitled to any greater weight than the other." California Jury Instructions Criminal No. 2.00, at 21-22 (5th ed. 1988).

10. Strong, supra note 9, s 185, at 339.

11. The question of the sufficiency of proof is interesting because it is not specifically covered by any of the rules of the Federal Rules of Evidence. Rather, the sufficiency is determined by the definition of the standard of proof, as determined by the procedural rules governing the type of case and trial in which the evidence is offered. For example, in a typical civil trial in state or federal court the standard of proof is by a preponderance. The "law" with respect to the burden of proof is, likewise, generally not treated by the Federal Rules of Evidence, or comparable state statutes. But see Fed.R.Evid. 301, 302 (relating to presumptions for reference to some aspects of the burden of proof).

12. However, the evidence on a particular issue may be so overwhelming that further evidence is unnecessary. In that event, even if the evidence "tips the scale" a little more, the judge may exclude it as cumulative and unnecessary under Rule 403.

13. Acceptance of a premise that cannot be proven absolutely, but is grounded in human experience, is a form of judicial notice, albeit judicial notice of nonevidentiary facts. More precisely, judicial notice of adjudicative facts, as governed by Fed.R.Evid. 201, is just the opposite of the unprovable premise; while judicial notice of legislative or evaluative facts, not governed by any rules of evidence or proof, are just like the unprovable premises discussed in the text accompanying this note. See Fed.R.Evid. 201 advisory committee's note (quoting Thayer, " '[i]n conducting a process of judicial reasoning, as of other reasoning, not a STEP can be taken without assuming something which has not been proved; and the capacity to do this with competent judgment and efficiency, is imputed to judges and juries as part of their necessary mental outfit."); see also Fed.R.Evid. 401 advisory committee's note ("Whether the relationship [relevancy of evidence to fact to be proven] exists depends upon principles evolved by experience or science, applied logically to the situation at hand.").

14. Wigmore argued that the inductive form is sufficient and that it is unnecessary to express the reasoning in deductive form. See George F. James, Relevancy, Probability and the Law, 29 Cal.L.Rev. 689, 694-99 (1941), for a discussion and criticism of Wigmore's view. The discussion in the text here is predicated upon James' analysis. The portion of James' article containing this discussion, although included in earlier editions, (David W. Louisell et al., Cases and Materials on Evidence 12-16 (2d ed. 1972)), is no longer included in John Kaplan et al., Cases and Materials on Evidence (7th ed. 1992).

15. One might be troubled over the question of who decides that the "common sense" of the premise is "true." Since the judge decides questions of admissibility (competency) of evidence, most of the arguments over the validity of the premise (articulated or not) will be answered by the judge's ruling on an objection as to relevance. See Fed.R.Evid. 104(a).

16. "The variety of relevancy problems is coextensive with the ingenuity of counsel in using circumstantial evidence as a means of proof.... Relevancy is not an inherent characteristic of any item of evidence but exists only as a relation between an item of evidence and a matter properly provable in the case." Fed.R.Evid. 401 advisory committee's note.

17. James, supra note 14, at 694-99.

18. Actually, there may be a number of other premises upon which this premise is built: One who repairs machinery after an accident thereby acknowledges that the machinery is in need of repair, that the repair could be made, and therefore the failure to repair previously constitutes negligence.

19. Note that Fed.R.Evid. 407 would require this otherwise logically relevant evidence of a subsequent remedial measure to be inadmissible on policy grounds. As will be examined in the section dealing with the fourth STEP, whether the evidence is legally relevant, Rule 407 represents a predetermined answer to a recurring problem balancing policy grounds for excluding evidence against logical relevance grounds for admitting the evidence.

20. Fed.R.Evid. 403 advisory committee's note.

21. Fed.R.Evid. 403.

22. See Strong, supra note 9, s 185, at 340 n. 27. Both McCormick and the advisory committee's note to Rule 403 observe that the Rule does not include surprise as a ground for exclusion. A continuance is noted as the appropriate remedy for a claim of surprise.

23. See Fed.R.Evid. 401 advisory committee's note ("[S]ome situations recur with sufficient frequency to create patterns susceptible of treatment by specific rules. Rules 404 and those following it are of that variety; they also serve as illustrations of the application of the present rule as limited by the exclusionary principles of Rule 403.").

24. See Fed.R.Evid. 404, 405.

25. See Fed.R.Evid. 406.

26. See Fed.R.Evid. 407.

27. See Fed.R.Evid. 408.

28. See Fed.R.Evid. 409.

29. See Fed.R.Evid. 410.

30. See Fed.R.Evid. 411.

31. See Fed.R.Evid. 412.

32. See Fed. R. Evid. 412-415.

33. Strong, supra note 9, s 185, at 341.

34. 656 F.2d 1147 (5th Cir. 1981). See also United States v. Pastor, 87 F.3d 860 (7th Cir. 1996) (reversing conviction of one co-defendants on the grounds that trial court's admission of evidence relating to his membership in a motorcycle gang was minimally probative and substantially prejudicial); United States v. Merriweather, 78 F. 3d 1070 (6th Cir. 1996) (reversing conviction for conspiracy to distribute cocaine and possession with intent to distribute, on the grounds that admission of incriminating evidence from an uncharged drug conspiracy unfairly prejudiced the defendant).

35. Ballou, 656 F.2d at 1152.

36. Id. at 1155.

37. This is a paraphrase of the basic definition of hearsay contained in Fed.R.Evid. 801(c).

38. Fed.R.Evid. 801(a).

39. Note that the person who has the intent to assert and makes a "statement" is known as the hearsay declarant. The hearsay declarant is the person who made the statement out-of-court, not the in-court witness who now wishes to repeat the statement.

40. Fed.R.Evid. 801(a) advisory committee's note.

41. For a wonderful analysis of the definition of assertion in the Federal Rules of Evidence, see Roger C. Park, "I Didn't Tell Them Anything About You": Implied Assertions Under the Federal Rules of Evidence, 74 Minn.L.Rev. 783, 793-801 (1990).

42. This hypothetical is an enhanced version of that used by Baron Parke in his opinion in Wright v. Doe dem. Tatham, 112 Eng.Rep. 488 (Exch.Ch.1837). See also Laurence H. Tribe, Triangulating Hearsay, 87 Harv.L.Rev. 957, 960 (1974) (discussing a similar hypothetical and referring to Baron Parke's hypothetical).

43. The evidence is the conduct of the captain. The evidence is offered to prove that the vessel is seaworthy. It does tend to do so because a captain of a seagoing vessel would only take his family out in the vessel on the sea if he believed it was seaworthy. Therefore the vessel is more likely seaworthy than if we had no evidence of the captain's conduct. Of course, the next inquiry-- the one focused on in the text--is whether the captain's conduct was intended as an assertion and hence a statement for purposes of the hearsay rule.

44. See Fed.R.Evid. 801(a) advisory committee's note.

45. "[B]ut words not of assertion, but of action, such as the offer of a position (to show the offeree's skill) or the letters in Wright v. Tatham itself." McCormick, supra note 40, at 502-03. The example of the offer of a position to show the skill of the offeree means that the inherent belief of the offeror in the skill of the offeree is taken as evidence that the offeree has such skill. Thus, the president of a bank offered John a position as Chief Teller, such offer is evidence that John is possessed of the skills and character traits, which a trusted Chief Teller would require, such as honesty. Under the Federal Rule definition, the words of the offer by the president of the bank would not be a statement since they were not intended by the president to assert that belief, but rather merely to extend the offer to John. Please note that Professor Park points out that this type of example is really a case of an assertion (statement) offered for something other than the matter asserted, and thus not hearsay within the definition of Fed.R.Evid. 801(c). Park, supra note 37, at 797-98. In Wright v. Doe dem. Tatham, letters were sent to the testator treating the testator as though he were capable of making business and social decisions (thus evidencing a belief on the part of the writers of the letters that the testator had sufficient mental capacity as would equal testamentary capacity). These letters were offered as evidence that the testator was of sound mind and thus that his will was valid. The court held that the letters were inadmissible for this purpose. Under the Federal Rules, Wright would be decided differently--the letters would be admitted as nonassertive conduct (here verbal conduct).

46. The Advisory Committee speaks of "verbal assertions" (which "can scarcely be doubted" as being intended as an assertion), "nonassertive nonverbal conduct" (which is treated as non-statement/non-hearsay) and "nonassertive verbal conduct" (which is governed by "similar considerations" as is nonverbal conduct). Fed.R.Evid. 801(a) advisory committee's note. For discussion, criticism, and compilation of commentators' comments see Olin G. Wellborn, The Definition of Hearsay in the Federal Rules of Evidence, 61 Tex.L.Rev.49 (1982).

47. Wellborn, supra note 43, at 55-64.

48. McCormick, supra note 40, at 504.

49. Fed.R.Evid. 801(a) advisory committee's note (citing John M. Maguire, The Hearsay System: Around and Through the Thicket, 14 Vand.L.Rev. 741, 765-67 (1961)).

50. For a full discussion of the distinction between Fed.R.Evid. 104(a) and Fed.R.Evid. 104(b) questions, see Norman Garland & Jay Schmitz, Of Judges and Juries: A Proposed Revision of Federal Rules of Evidence 104, 23 U.C. Davis L.Rev. 77 (1989).

51. This use of the term "exclusion" in conjunction with the hearsay rule will be referred to again. "Exclusion" means that the evidence under consideration is excluded from the definition of hearsay, under the hearsay rule, by its terms; exclusions also exist from the hearsay definition. Exclusions are not to be confused with exceptions to the hearsay rule. Exceptions apply to statements that are hearsay but are nonetheless admissible in evidence because they are within certain categories of evidence that the law allows for various policy reasons.

52. Fed.R.Evid. 801(c) provides that "[h]earsay is a statement, other than one made by the declarant while testifying at the trial or hearing offered in evidence to prove the truth of the matter asserted."

53. The reference in Rule 801(c) "other than one made by the declarant while testifying at the trial or hearing" seems to confuse many students. However, it simply acknowledges that a witness testifying in court does not give evidence that is hearsay merely because his or her testimony constitutes evidence in the form of statements. Such a witness's testimony does not violate the hearsay rule, unless the witness repeats a statement that was made out of court and which is offered for the truth of the matter contained in the out-of-court statement.

54. The definition of hearsay in Rule 801(c) incorporates the notion of relevance. The language, "offered to prove" the truth of the matter, requires a determination of what the questioned item of evidence is being offered for. That, in turn, triggers the process discussed in the first three STEPS presented here.

55. The distinction between alternatives (1) and (2) is illustrated by an example. In a negligence action, the evidence is a statement by an employee of defendant who is not available to testify: "The floor is wet and slippery." If the plaintiff offers the statement to show that the floor of defendant's store was dangerously unsafe (i.e., wet and slippery), the statement is hearsay; it is relevant to the issue of breach of duty/unreasonable risk of harm only if the statement is true (disregarding for purposes of this analysis of whether the statement is hearsay or not, that the statement may be admissible as an admission by a party opponent or a present sense impression). On the other hand, if the defendant offers the same statement to show that the plaintiff had notice of the slippery floor and thus either was contributorily negligent or assumed the risk of injury, the statement is not hearsay. If the plaintiff heard the warning (a conditioning fact), it is logically relevant to the issue of notice, regardless of the statement's truth or falsity. The reason is that the statement is not offered to prove that the floor was wet and slippery (that fact must be shown by other evidence, e.g., the plaintiff's testimony); rather, its purpose is to show that a statement was made to plaintiff, that, in ordinary human experience, would cause the person who heard it to exercise appropriately greater caution, regardless of the statement's truth. Any person who heard this statement could testify to that fact. This illustration is loosely based on the case of Safeway Stores, Inc. v. Combs, 273 F.2d 295 (5th Cir.1960).

56. Wigmore called cross-examination "the greatest legal engine ever invented for the discovery of truth." 5 John H. Wigmore, Evidence s 1367 (Chadbourn rev. 1974).

57. Fed.R.Evid. art. VIII advisory committee's note (introductory note refers to only three factors: perception, memory, and narration; sincerity is said to be "merely an aspect" of the other three).

58. The hearsay risks may be "overcome" by falling within an exception to the hearsay rule (or a definitional exclusion) in that the circumstances of the making of the statement may be such as to be inherently trustworthy. Or, the evidence may be so necessary that, under the circumstances, and in combination with the increased inherent trustworthiness of the situation, the law provides for that class of statements to be admitted within an exception to the hearsay rule. Or, as with admissions by a party opponent, the rules have permitted the evidence to come in as a product of the adversary system. See Fed.R.Evid. art. VII advisory committee's note (introductory note to Article VIII of the Federal Rules of Evidence). Of course, considerations of confrontation and due process must be ameliorated within this approach. See discussion infra part 9.

59. The Federal Rules of Evidence also create categories of statements that are not hearsay. These categories are specified in Fed.R.Evid. 801(d). Two species of statements are defined: Prior statements by a witness and admissions by a party-opponent. These species of statements were treated as hearsay at common law and were considered admissible as exceptions to the hearsay rule. See, e.g., Cal.Evid.Code s 1235 (prior inconsistent statements); Cal.Evid.Code s 1238 (statements of identification); Cal.Evid.Code s 1220 (a party's own admission); Cal.Evid.Code s 1223 (co-conspirator's admissions). For ease of understanding, this category of statements, defined as nonhearsay by the Federal Rules of Evidence shall be called exemptions from the hearsay rule.

60. See Fed.R.Evid. 801(c) advisory committee's note.

61. Park, supra note 37, at 794.

62. See Fed.R.Evid. 801(c) advisory committee's note. One should note, however, that the expressions "verbal acts" or "verbal parts of an act" are confusing, to say the least. Often, these expressions are used interchangeably with another confusing expression, res gestae. It is far more accurate to use the more specific terminology that is applicable; in this case, for instance, the term operative legal fact.

63. Id.

64. McCormick refers to res gestae, the term often applied to verbal acts, and other aspects of the hearsay rule and its exceptions, as a "nebulous concept." Edward W. Cleary et al., McCormick on Evidence s 249, at 733 n. 6 (3d ed. 1984). See also Strong, supra note 9, s 249, at 471-72 (discussing the term res gestae as it applies to spontaneous statements). The third edition of McCormick on Evidence contains a Westlaw Reference for the term res gestae as a "useless harmful shibboleth." Edward W. Cleary et al., McCormick on Evidence s 288, at 836 (3d ed. 1984).

65. Strong, supra note 9, s 249, at 471-72.

66. In other words, the witness could be questioned and satisfy all the requirements that the hearsay rule is aimed at recognizing. See Fed.R.Evid. art. VIII advisory committee's note (introductory note).

67. Examples of this form of operative legal fact appear in Waltz & Park, supra note 3. Question 10 asks: "On the issue whether a transfer of a chattel from D to X was a sale or a gift, D's statement accompanying the transfer, 'I am giving you this chattel as a birthday present.' " Question 11, on the same examination asks: "On the issue in 10, D's statement the day following the transfer, 'I gave you the chattel as a birthday present.' "

68. See Los Robles Motor Lodge, Inc. v. Department of Alcoholic Beverage Control, 54 Cal.Rptr. 547 (Ct.App.1966).

69. See Waltz & Park, supra note 3, at 127 (Question 1).

70. No specification of this exclusion exists in the Federal Rules of Evidence, or the accompanying Advisory Committee's Notes. McCormick includes a category covering this matter, Strong, supra note 9, s 249, at 430-31 (entitled "Some Out-of-Court Utterances Which Are Not Hearsay"; the pertinent portion is sub-headed "Utterances and writings offered to show effect on hearer or reader"). See also 6 John H. Wigmore, Evidence s 1789 (Chadbourn rev. 1976).

71. See discussion infra part 7.

72. Kaplan, supra note 2, at 92.

73. 100 Sol.J. 566 (P.C.1956), reprinted in Waltz & Park, supra note 3, at 92

74. Id.

75. Id.

76. Id.

77. Id.

78. See, e.g., Safeway Stores, Inc. v. Combs, 273 F.2d 295 (5th Cir.1960) (statement by store manager "Lady, please don't step in that ketchup," just before she did and slipped); Player v. Thompson, 193 S.E.2d 531 (S.C.1972) (testimony that inspector said in presence of defendants that tires were defective, to prove notice of that condition).

79. See Fed.R.Evid. 801(c) advisory committee's note (citing Emich Motors v. General Motors, 181 F.2d 70 (7th Cir.1950), rev'd on other grounds, 340 U.S. 558 (1950)) (letters of complaint from customers offered as a reason for cancellation of dealer's franchise, to rebut contention that franchise was revoked for refusal to finance sales through affiliated finance company).

80. See, e.g., Johnson v. Misericordia Community Hosp., 294 N.W.2d 501 (Wis.Ct.App.1980) (action for negligence in hiring physician and granting surgical privileges; records and reports of other hospital's committee not hearsay to show information available to defendant).

81. See, e.g., Knapp v. State, 79 N.E. 1076 (Ind.1907), reprinted in Waltz & Park, supra note 3, at 71.

82. See Fed.R.Evid. 105 (limited admissibility) and Fed.R.Evid. 403 (exclusion of relevant evidence on grounds of prejudice, etc.).

83. A wife saying such a thing to her husband at least satisfies the requirements of the definition of logical relevance on the issue of loss of affection. The fact of the utterance makes it more likely that the wife lacks affection for her husband than if the utterance had not been made. This hypothetical is used by Strong, supra note 9, s 269, at 462, and is based upon a case appearing in Waltz & Park, supra note 3, at 209 (appearing in the casebook under the section treating the state of mind exception to the hearsay rule; nonetheless it is an appropriate vehicle to demonstrate the distinction between the exclusion and the exception). In this case, Adkins v. Brett, 193 P. 251 (Cal.1920), an action for damages for alienation of affection, plaintiff sought to introduce evidence that his wife stated, among other things, that she had gone automobile riding with the defendant, had dined with him, had received flowers from him, and that he was able to give her a good time, and the plaintiff was not.

84. See Edmund M. Morgan, Basic Problems of Evidence 248-50 (1961), reprinted in Waltz & Park, supra note 3, at 112. See also Strong, supra note 9, s 274, at 482. McCormick uses the example of the utterance, "I am Henry the Eighth."

85. Morgan, supra note 81, at 248-50. McCormick notes that in this area (i.e., proof of mental condition) whether the utterance is assertive or nonassertive matters not, for the evidence will come in to prove the speaker's mental state: Thus it makes no difference whether declarant says, "I am Henry the Eighth," or "I believe that I am Henry the Eighth. Both are offered as evidence of irrationality, and niceties of form should not determine admissibility. If, nevertheless, it is argued that abnormal conduct can be simulated, thereby becoming assertive and therefore hearsay, a short answer is that in that event the evidence would be admissible under the hearsay exception [for state of mind].... Id.

86. Id.

87. See supra notes 36-47 and accompanying text.

88. Here, just as with other nonassertive communication, the words or conduct are offered to show belief, to show the fact believed. But, as with other nonassertive communication, the utterance is not taken to prove its content in order to prove the belief. See supra notes 40, 45 and accompanying text. For example, the utterance: "I have been happier in New York than in any other place," when offered to prove the speaker's intent to remain in New York is nonassertive, and thus not offered for the truth of the matter contained in the utterance. See Strong, supra note 9, s 269, at 472. On the other hand, if the speaker had said, "I intend to spend the rest of my life here in New York," then that utterance would be a statement of intent and if offered to prove the intent would be assertive and hearsay.

89. Id.

90. 19 N.W.2d 529 (Wis.1945), reh'g denied, 19 N.W.2d 862 (Wis.1945). The Bridges principle was applied in United States v. Muscato, 534 F.Supp. 969, 975-78 (E.D.N.Y.1982), which discusses Bridges in detail. See also excerpt from Grahm C. Lilly, An Introduction to the Law of Evidence 213-14 (2d ed. 1987), reprinted in Waltz & Park, supra note 3, at 86.

91. See Strong, supra note 9, s 250, at 435. The reference to the "trace" of the mind was eliminated in the third edition of McCormick, now the subject is dealt with under the heading of "knowledge." Edward W. Cleary et al., McCormick on Evidence s 250, at 741-42 (3d ed. 1984).

92. Bridges, 19 N.W.2d at 530.

93. Id. at 534.

94. Id. at 536.

95. Edward W. Cleary et al., McCormick on Evidence s 250, at 435 (4th ed. 1992).

96. Id. Sec. 250, at 436.

97. See supra note 79 and accompanying text.

98. Strong, supra note 9, s 250, at 435. Here, the author notes that in answering the question whether a person is alive at a particular time, it would not matter whether he said, "I am alive," or "Hi, Joe." No cases are cited to support this example. However, the authors include in the current edition of their casebook a "made-up case" (cited as 32 Muc. 352 (standing for made-up cases)). Waltz & Park, supra note 3, at 90.

99. See, e.g., Fed.R.Evid. art. VIII advisory committee's note (introductory note).

100. Fed.R.Evid. 803, 804(b).

101. Id. (Rule 804(a) defines unavailability for purposes of the 804 exceptions).

102. Id.

103. Id.

104. See, e.g., Edna S. Epstein et al., Emerging Problems Under the Federal Rules of Evidence, 1983 A.B.A.Sec.Litig. 279-94, reprinted in Waltz & Park, supra note 3, at 309-312. See also Myrna S. Raeder, Confronting the Catch-Alls, 6 A.B.A.Sec.Crim.Just. 30 (1991) (reviewing the catchalls in criminal cases).

105. Fed.R.Evid. 803(24) advisory committee's note.

106. Fed.R.Evid. 803(24), 804(b)(5).

107. See supra notes 53-55 and accompanying text.

108. The theory underlying the hearsay exemptions under the Federal Rules of Evidence is probably not a balance of trustworthiness over hearsay risks. Rather, admissions by party opponents exempted from the hearsay rule under Fed.R.Evid. 801(d)(2) are grounded upon the nature of the adversary system. See Fed.R.Evid. 801(d)(2) advisory committee's note. The exemption for witnesses' prior inconsistent statements is based more on trustworthiness. See Fed.R.Evid. 801(d)(1)(A) advisory committee's note (citing and quoting a report from the California Law Revision Commission). Prior consistent statements are exempted largely due to the nature of the adversary system. It is mainly within the power of the opponent to determine the admissibility of such statements. See Fed.R.Evid. 801(d)(1)(B) advisory committee's note. The exemption for prior identification manifests a recognition of the need to examine all the surrounding circumstances of an in-court identification. See Fed.R.Evid.801(d)(1)(C) advisory committee's note.

109. Fed.R.Evid. 803(24) Senate Judiciary Committee notes.

110. Id.

111. Id.

112. Fed.R.Evid. 803(24), 804(b)(5).

113. Fed.R.Evid. 803(24) advisory committee's note.

114. Id.

115. 286 F.2d 388 (5th Cir.1961).

116. Id. at 390.

117. Id.

118. Id.

119. Id. at 391.

120. Id. at 397.

121. Fed.R.Evid. 803(24), 804(b)(5).

122. Dallas County, 286 F.2d at 396-97.

123. Fed.R.Evid. 803(24)(c), 804(b)(5)(c).

124. 542 F.2d 285 (5th Cir.1976).

125. Id. at 287.

126. Id.

127. Id. at 289-90.

128. Id.

129. Id.

130. United States v. Gonzalez, 559 F.2d 1271 (5th Cir.1977).

131. United States v. Carlson, 547 F.2d 1346 (8th Cir.1976), cert. denied, 431 U.S. 914 (1977); United States v. Garner, 574 F.2d 1141 (4th Cir.1978), cert. denied, 439 U.S. 936 (1978).

132. 505 F.Supp. 1190 (E.D.Pa.1980).

133. Id. at 1263.

134. Id. at 1264. See also United States v. Oates, 560 F.2d 45 (2d Cir.1977).

135. In re Japanese Elec. Prod. Antitrust Litig., 723 F.2d 238, 302 (3d Cir.1983), rev'd on other grounds, 475 U.S. 574 (1986). See also Raeder, supra note 101, at 33.

136. Oates, 560 F.2d at 74, 77-78.

137. Raeder, supra note 101, at 33.

138. See United States v. Mathes, 559 F.2d 294 (5th Cir.1977).

139. See DeMars v. Equitable Life Assur. Soc'y, 610 F.2d 55 (1st Cir.1959) (other medical experts could testify to the facts contained in the unavailable doctor's medical report); United States v. Fredericks, 599 F.2d 262 (8th Cir.1979) (testimony of other eyewitnesses).

140. Idaho v. Wright, 497 U.S. 805 (1990).

141. See Raeder, supra note 101, at 36.

142. 497 U.S. 805 (1990).

143. Id. at 818.

144. U.S. Const. amend. VI. This right was made applicable to the states under the Fourteenth Amendment Due Process Clause. See Ohio v. Roberts, 448 U.S. 56 (1980).

145. Roberts, 448 U.S. at 63.

146. Id. at 66 (citations omitted).

147. California v. Green, 399 U.S. 149, 155 (1970).

148. See supra notes 142-43 and accompanying text.

149. Roberts, 448 U.S. at 65.

150. Id. at 59.

151. Id. at 75.

152. 475 U.S. 387 (1986).

153. Id. at 390.

154. Id. at 394.

155. Id.

156. Id.

157. Id. at 395-96.

158. Id. at 396.

159. Id. at 396-400.

160. For an interesting discussion of the Roberts and Inadi decisions, see 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).

161. 483 U.S. 171 (1987).

162. Id. at 176. "Bootstrapping" in the context of the use of co- conspirators' statements means finding the preliminary facts of existence of the conspiracy, the defendant's and declarant's participation in it, and the making of the questioned co-conspirators' statement in the course of and furtherance of the conspiracy, not by evidence independent of the statement itself, but taking into account the questioned statement.

163. Id. at 182-83.

164. Id. at 182.

165. Id. at 183.

166. 112 S.Ct. 736 (1992).

167. Id. at 742-43.

168. Id. at 742.

169. Id.

170. Id. at 743.

171. One should note that the Court approved the admissibility of evidence falling within the statements for medical diagnosis exception in White even though the statement there involved an assertion of identity of the perpetrator of the injury. Such an expanded version of the exception exceeds the scope intended by the drafters of the Federal Rules of Evidence. See Fed.R.Evid. 803(4) advisory committee's note. Cleary, supra note 61, s 292, at 465 nn. 10-11.

172. Aside from 803 (the holding in White has apparently been interpreted by lower courts to limit the applicability of the Roberts availability analysis for Confrontation Clause purposes to situations where the "challenged out-of-court statements were made in the course of a prior judicial proceeding" 112 S.Ct. at 741. See United States v. Kayne, 90 F3d 7, at 13 (1st Cir 1996); Earnest v.Dorsey, 87 F.2d 1123, at 1130, n.5 (10th Cir. 1996); Guam v. Ignacio, 10 F.3d 608,611 (9th Cir. 1993); Larson v. Nutt, 34 F.3d 647, 648 (8th Cir. 1994); but cf. Hatch v. Oklahoma, 58 F.3d 1447, 1467 (10th Cir. 1995)(citing Roberts, cert. denied, 116 S Ct. 1881 (1996).

173. Fed.R.Evid. 803(6). See United States v. Kayne, 90 F.3d 7 (1st Cir. 1996) at 12 - 14; Sherman v. Scott, 62 F.3d 136, 140-41 (5th Cir. 1995).

174. Fed.R.Evid. 803(2). See White, 502 U.S. 346, 355-356 (1992); Guam v. Cepeda, 69 F.3d 369, 373 (9th Cir. 1995) (stating the "Roberts unavailability requirement does not apply to statements admitted under the excited utterance exception); Guam v. Ignacio, 10 F.3d 608, 614-15 (9th Cir. 1993) (stating "[s]ince the excited utterance is firmly rooted, the Confrontation Clause was not violated . . . .").

175. Fed. R. Evid. 803(4). See White, 502 U.S. 346, 355-356 (1992); Guam v. Ignacio, 10 F.3d 608, 612-13 (9th Cir. 1993) (recognizing the exception as "firmly rooted" despite ruling that the evidence at issue was improperly admitted under the exception as it did not satisfy its elements).

176. See United States v. Kayne, No. 94-1406, 90 F.3d 7 ( 1st Cir. July 24, 1996), at *16-17; Earnest v.Dorsey, 87 F.2d 1123, (10th Cir. June 26, 1996) at *15, n.5; Sherman v. Scott, 62 F.3d 136, 140 (5th Cir. 1995); Minner v. Kerby, 30 F.3d 1311, 1315 (10th Cir. 1994); Larson v. Nutt, 34 F.3d 647, 648 (8th Cir. 1994); Guam v. Ignacio, 10 F.3d 608,611 (9th Cir. 1993); but cf. Hatch v. Oklahoma, 58 F.3d 1447, 1467 (10th Cir. 1995) (citing Roberts, cert. denied, 116 S Ct. 1881 (1996)).

177. 497 U.S. 805 (1990).

178. Namely, the Wright Court restated "[t]he two-pronged test of Roberts, that the Court did not adopt an across-the-board unavailability test in Roberts, and that the co-conspirators' 'exception' was 'firmly rooted' enough under the Roberts standard not to require independent indicia of reliability." Id. at 814-15.

179. The Wright Court stated "[f]or purposes of deciding this case, we assume without deciding that, to the extent the unavailability requirement applies in this case, the younger daughter was an unavailable witness within the meaning of the Confrontation Clause." Id. at 816.

180. Id. at 817.

181. Id. at 811-12.

182. Id. at 817.

183. Id. at 818. Note that the Wright Court used the quoted phrase to equate with the "indicia of reliability" prong of Roberts, citing language in Roberts, Bourjaily, and Lee v. Illinois, 476 U.S. 530 (1986). Wright, 497 U.S. at 817.

184. Id. at 819. The State argued that particularized guarantees of trustworthiness could be shown by a totality of the circumstances, including other trial evidence corroborating the statement. Id. The Wright Court rejected that argument. Id. Moreover, the state supreme court found that lack of procedural safeguards necessitated the finding of lack of trustworthiness. Id. The Wright Court rejected that reasoning. Id.

185. See supra notes 137-38 and accompanying text.

186. 985 F.2d 770.

187. Id. at 775, fn 12. See also United States v. Shaw, 69 F.3d 1249, 1253 (4th Cir. 1995)(stating the "trustworthiness requirement . . . is satisfied if the court can conclude that cross-examination would be of 'marginal utility.'"); Commonwealth of the Northern Mariana Islands v. Condino, No. 93-10470, 1994 U.S. App. Lexis 22973, at *6-7 (9th Cir. August 10, 1994) (threshold inquiry is whether statements are so trustworthy that "adversarial testing would add little to [their] reliability").

188. See Wright, 497 U.S. at 823 (stating that corroborating evidence was more useful in determining whether an error in admitting a statement was harmless, than in supporting a hearsay statement's reliability); United States v. Shaw, 69 F.3d 1249, 1253 n.5 (4th Cir. 1995) (stating that the district court had erred to the extent that it looked beyond the immediate circumstances of statements to other corroborating evidence in determining statement's trustworthiness); United States v. Flores, 985 F2d 770, 777(5th Cir. 1993) (stating that use of corroborating evidence is no longer a factor in "calibrating trustworthiness.").

189. In fact, the Federal Rules of Evidence are, in at least one respect, more restrictive than the requirements of the Confrontation Clause. See, e.g., California v. Green, 399 U.S. 149 (1970) (noting in dictum that prior statements of a witness, subject to cross-examination at trial, were constitutionally admissible for the truth of the matter asserted even though the prior statements were not made under oath). The Federal Rules of Evidence allow a prior inconsistent statement not made under oath to be used only for the purpose of impeaching the credibility of a witness. Fed.R.Evid. 613. See also Dutton v. Evans, 400 U.S. 79 (1970) (Stewart, J., writing a rather elusive plurality opinion regarding the use of co-conspirators' statements).

190. 390 U.S. 719 (1968).

191. Id. at 720.

192. Fed.R.Evid. 804(a)(5).</smal

193. 390 U.S. at 720.

194. Id. at 724-25.

195. Fed.R.Evid. 804(b)(1).

196. Ohio v. Roberts, 448 U.S. 56, 63 (1980).

197. 380 U.S. 400 (1965). Pointer made the Confrontation Clause applicable to the states under the Fourteenth Amendment. Id. at 403.

198. Id. at 407.

199. 380 U.S. 415 (1965) (Douglas was the companion case to Pointer).

200. Id. at 416-17.

201. Id. at 419-20.

202. 410 U.S. 284 (1973).

203. Id. at 302.

204. Interestingly, the officer's conduct may have been a nonverbal statement; his conduct was an expression of his belief that the gunfire had come from the alley. If the officer intended to communicate that belief, then the conduct would be a statement, and inadmissible unless it was a dying declaration under Fed.R.Evid. 804(b)(7); the question would then be whether the policeman had knowledge of impending death.

205. Chambers, 410 U.S. at 289.

206. Id. at 287-88.

207. Id. at 289.

208. Id. at 291.

209. Id. at 291-92.

210. Id. at 294. The voucher or witness voucher rule holds that the party who calls a witness vouches for the witness' credibility and is bound by the testimony; that party cannot impeach the witness unless the witness is declared "hostile" or "adverse" by the court. Id.

211. Id. at 294.

212. Id. at 289.

213. Id. at 294.

214. Id. at 302-03.

215. No. 95 566, 1996 U.S. LEXIS 3878 (June 13, 1996).

216. Id. at *1 (deliberate homicide being defined by Montana law as "purposefully" or "knowingly" causing another's death.)

217. Id.

218. Id. at *26-7.

219. Id.