humor in trial evidence - university of hawaiʻi

Humor in Trial EvidenceCartoon Contest Caption Winners and Challenges

from My Evidence Class

John Barkai

University of Hawaii

William S. Richardson School of Law

I think I will be getting out soon.

My new lawyer had Barkai for evidence.

iii

Humor in Trial Evidence: Cartoon Contest Caption Winners and Challenges

from My Evidence Class

Professor John Barkai


University of Hawaii

Honolulu, HI 96822

ISBN: 9781798893739

Introduction

This book contains almost 900 of the best original captions about evidence and trial issues that were written by

my evidence students (and a few that I made up too) for cartoons used in cartoon captioning contests on my law

school evidence and litigation final examinations for 40 years.

My main interest in publishing this book is to get the cartoons and captions to law school evidence professors to

use in their classes and trainings. Of course any lawyer or law student who has ever had to dig deeply into the

rules of evidence will get some laughs from this book. Even if you have never read the Daubert, Crawford, or

Hillmon cases, or never heard of the residual exception to the hearsay rule, you should still understand the humor

in many of the captions in this book.

Cartoon captioning contests started more than 100 years ago. Today by far the most popular cartoon captioning

contest is the New Yorker Magazine’s Cartoon Caption Contest. The New Yorker contest started in 1999 as a

feature within the annual cartoon issue of the magazine. That contest was then repeated yearly through 2004. In

2005, the New Yorker’s contest was turned into a weekly event.

I began using cartoon captioning contests in 1980 when I first tried a cartoon question on my litigation workshop

final exam at the University of Hawaii Law School. I continued to use captioning contests in my evidence,

litigation, and negotiation and ADR classes for the next 40 years at the Law School.

I have published a similar cartoon book called, Humor in Negotiations & ADR: Cartoon Contest Caption Winners

from the ABA Dispute Resolution Magazine, which contains over 500 “winning” captions for more than 50

cartoons used in cartoon captioning contests that were published over 14 years in the Dispute Resolution

Magazine, a quarterly publication of the American Bar Association’s Section on Dispute Resolution. Those

captions came from the ABA magazine’s cartoon captioning contest and similar contests I ran in my law and

business school classes with the same cartoons.

Origins of the Cartoons in this Book. When I used cartoons on my law school final examinations, I simply cut

the captions off cartoons that I found in newspapers, magazines, books, and on the internet. I thought I could

make “fair use” of those cartoons on my exams and in later classes. I used about 30 cartoons for evidence

captioning contests over the years. However, I also knew that I could not publish those cartoons in a book even if

I sold it at cost, and the lack of permission to use the cartoons from my in-class contests kept me from publishing

the captions. However, a couple of years ago when I learned how to self-publish my Hawaii Rules of Evidence

Handbook on Amazon. From that publishing experience, I developed a new path to publishing cartoon books. If I

could draw new cartoons (impossible in my case because I have no artistic talent), get someone else to draw new

cartoons for me, purchase cartoons, or use my Photoshop skills, I could publish my cartoon captions.

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For this evidence cartoon book, I purchased the rights to use a few of the cartoons I had used on my exams. I

hired Mallory Hee as a research assistant to draw some new cartoons for me. Mark Anderson allowed me to use

many of his cartoons from Andertoons.com at a very reasonable fee. The families of Misha Richter and Chon Day

each allowed me to use one of their father’s cartoons, which were among my all-time favorites. Mishsa Richter’s

cartoon was first published in 1974 and Chon Day’s cartoon was published in 1947 (just two years after I was

published – joke). I greatly appreciate the hundreds of students who created the captions that appear in this book,

and about 2,000 other students who made up captions that did not make it into this book. Because the captions

were all created as part of blind-graded final examinations, I have no idea which of my students over the past 40

plus years were the funniest and most creative – but I thank you.

I used my Photoshop skills to put the heads of my family, friends, and work colleagues (and even my pets) on old

images and create many more cartoons. Initially, and playfully, I decided to include my wife and children in the

images. Later I moved on to adding the images a few of my law school colleagues into the book. In the end, I

ultimately photoshopped the heads of my over 70 of my family, friends, and law school colleagues into the book

as personal reminders of many of the people who have played important roles in my personal and professional

life. Their names are near the end of this book. I used so many people because with a total of almost 900 captions,

I simply needed more cartoons to make the book more than just a list of captions. For example, over the years I

only used five judge and five prisoner cartoons among the 30 cartoons I used, but I am now publishing over 250

judge captions and more than 125 prisoner captions.

Changing the Image of Legal Humor from Old White Guys. I also used this book to change the image of legal

humor presented in cartoons. If you had been looking at legal cartoons for over 40 years like I have (I brought my

cartoon collection with me to Hawaii in 1978 and still have a few of those tattered and yellowed cartoons in my

office), it quickly becomes apparent that judge and lawyer images that appear in the cartoons, especially older

cartoons, do not look like the judges and lawyers of today. Most of the judges and lawyers in cartoons look like

me – old white guys. When I asked Mallory Hee to draw some original cartoons or when I photoshopped some of

my friends into the cartoons, we included more women and people of color as judges and lawyers than you will

find in even contemporary legal cartoons.

Why Use Cartoons in a Class? There are many reasons to use cartoons in a presentation. If I were writing a law

review article about the topic, I would include references to many prior academic publications that tout the use of

humor and cartoons from primary education through college, professional schools, and to presentations to adults.

The academic literature about humor and cartoons says that humor and cartoons promote learning, capture

attention, make connections with the subject matter, increase retention, promote creativity and critical thinking,

create social cohesion within the learning group, build a sense of community, provide a tool to assess whether the

audience understands the material, promote health, reduce stress, exercise the heart, increase activity within the

immune system, and keep the audience engaged. Laughter is both good medicine and good teaching.

Acknowledgements. I want to thank and acknowledge my family, friends, and colleagues who have allowed me

to use their images in this book. Doing my own unique balancing (not quite a Rule 403 balance) by

acknowledging them by name but not identifying their face with their name, I am trying to both give them some

credit for their influence in my life and also protecting their privacy. Few people who look at this book, especially

those outside Hawaii, will know many or any of the people pictured in the book. Using their images was really for

my purposes (thank you again), so that someday I can look at their faces again and remember my personal and

professional life.

How to Use This Book. It’s simple. Just read it. Have fun.

If you feel creative and want to play along, just pretend you are entering a cartoon captioning contest. Each

cartoon is presented two times in the book. First, a cartoon is presented with no caption, but with words that might

provide a trigger or a challenge for you to create a caption. The “suggestions” and “challenges” are concepts or

words that will appear in some of the captions on the next page. After you have thought of a caption, turn the page

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and see a smaller version of the cartoon with several captions created for the cartoon cartoons. If you tire of

playing the game of creating your own caption, and I would, just start looking at the pages with all the captions.

If you are an evidence teacher, you might find the back-of-the-book indexes helpful if you are looking for a

cartoon on a particular topic. I have created two indexes: one using the words or concepts in a caption and another

index using the Federal Rules of Evidence numbers that I think fit with a particular caption.

Barkai-isms in this Book. A Barkai-ism is an acronym, mnemonic, or some other memory device that I have

created to help my students remember evidence concepts. Two pages of Barkai-isms follow this introduction.

Many Barkai-isms appear in the captions, but you will not understand the humor of those captions without

understanding the Barkai-ism. SPAM, CRUD, cCRUD, SODDIT, HARROWing, and PET evidence are not

words commonly heard in evidence classrooms, but you will hear them in my classes, along with a whole class

chorus of students saying out loud “Bias is never collateral.”

Regarding Copyright. There is no copyright for the captions, but the cartoons are owned by the artists who

created them. You might have a “fair use” exception to the copyright laws to use the cartoons and captions in your

class, but I suggest that you not publish the cartoons without the permission of the artist if the cartoon was not

created by either Mallory or me. Mallory Hee and I give you permission to use with attribution any of the

cartoons she or I have created. The suggested attribution is to cite the material as: John Barkai, Humor in Trial

Evidence: Cartoon Contest Caption Winners and Challenges from My Evidence Class (2020). If the cartoon is

from Mallory, we ask that you include – “Artist Malloy Hee.” If you have any other questions about the

copyright, consult a lawyer. You probably know a few.

I hope you enjoy this book. I very much enjoyed putting it together. The book and the captions are one of my

most creative projects and are part of what I call my legacy projects. I expect more people will read at least parts

of this book than any law review article I have ever written.

Aloha,

John Barkai

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Barkai-isms

Glossary for Evidence

A Barkai-ism is an acronym, mnemonic, a phrase, or some other memory device that I have created to help my

students remember evidence concepts. You will find many Barkai-isms in the captions in this book so I have

created this glossary for your understanding. Without this glossary you will miss the humor in some of the

captions in this book.

SPAM is an acronym for the four hearsay risks of Sincerity, Perception, Accuracy, and Memory. The first day I

cover hearsay becomes a SPAM day. I pretend that I am a trial lawyer and lay the foundation for introducing a

bag that contains a can of spam through a student witness. I ask the student, “What does spam have to do with

today’s class?” They do not know. I then explain that spam stands for the hearsay risks. I take off my shirt to

reveal a SPAM t-shirt, put on a baseball cap with SPAM written on it, later to be exchanged for two caps, one

labeled W for witness and the other labeled D for declarant. I blow up a beach ball with SPAM printed on it and

let the students hit it around the class like a volleyball. Nothing has broken – yet.

CRUD is an acronym to explain how we would like to protect against spam. We want to test a witness’

observations by using CRoss examination, having the witness Under oath, and observing the witness’ Demeanor.

cCRUD is CRUD with a prior lower case “c” to remind us that we want Contemporaneous cross examination,

which would be cross examination done at the time the statement is made, not when a declarant-witness comes to

court.

KRAP is an acronym to remind students of the business records elements (slightly out of order compared to the

order of FRE(6)): Kept in the course of a regularly conducted activity, it was the Regular practice to make such a

record; the record was made At or near the time of the event, and the declarant had Personal knowledge.

SODDIT [Some Other Dude Did It] A defense of mis-identification.

HARROWing. Introducing physical items or documents can be a harrowing (extremely distressing) experience

for a new lawyer. To avoid missing any issues, think of these evidence concepts and rules: H is for hearsay, R801-

807. A is for authentication, R901. R(1) is for R401 logical relevancy. R(2) is for R403 legal relevance. OW is for

“original writings” or “best evidence,” R1001-1008.

PET evidence is a reminder that evidence about some other Person, Event, or Time will not be relevant or

admissible unless a special relevancy rule like R404 allows for it.

My left shoe. When we first cover refreshing memory, looking at R612 and refreshing memory with documents, I

take off my left shoe and showing a slide of my left running shoe. The point is that anything can be used to

refresh memory, even my shoe. My left shoe is a phrase and an image to make unforgettable the idea that

anything can refresh memory.

“Bias is never collateral” is a phrase that summarizes important impeachment concepts. Bias is always R401

relevant. Any witness can be cross examined while on the witness stand about topics that would impeach them.

Cross examination that impeaches a witness while the witness is testifying on cross is “intrinsic” impeachment.

The witness is “in” court and sitting on the witness stand.

If a witness denies the impeaching material during cross examination (an attempt to do intrinsic impeachment),

the next issue is whether a second witness or a document can be used to impeach the original witness who was not

impeached during the intrinsic impeachment attempt. The use of a second witness or a document to impeach is

called extrinsic impeachment. The federal common law does not allow extrinsic impeachment on issues described

as “collateral.” This is the “collateral matter rule.” To say, “bias is never collateral,” means that extrinsic impeach

on bias is allowed if a proper foundation was created during the intrinsic impeachment attempt.

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Extrinsic evidence is admissible when relevant to impeach, but only if it is on a material matter. Bias, perception,

memory, capacity, and prior convictions (under Rule 609) are ALWAYS material – or you could say “they are

never collateral.” [Prior] bad acts of untruthfulness under FRE 608(b) are ALWAYS collateral and never

admissible by extrinsic impeachment. Prior inconsistent statements and contradictory facts may be collateral and

therefore not admissible.

I introduce the phrase in my first class of the semester and make everyone say it out loud three times in a row.

Bias is never collateral. Bias is never collateral. Bias is never collateral. Students never forget it, and truthfully,

many students struggle to understand it. The Federal Rules of Evidence have no rule about bias, although the

Hawaii Rules of Evidence have a bias rule, HRE 609.1. The federal courts, and I believe all other jurisdictions,

apply common law concepts (or specific evidence rules like Hawaii’s) to say that bias is always relevant.

Halo. The criminal defendant wears a halo in Hawaii. Unlike FRE 609 which allows for impeachment by

convictions for felonies and by convictions for misdemeanors involving dishonest acts and false statements,

Hawaii Rule 609 does not allow a criminal defendant to be impeached with any prior convictions unless

defendants testify to establish their own credibility. Just think that the Hawaii criminal defendant wears a halo. In

Montana, all witnesses get the halo - Montana R. Evid. 609. Kansas Code, 60-421 is similar to Hawaii’s rule 609.

The Hawaii defendant can take off the halo and open the door to impeachment by conviction by being a “big

mouth witness” who says something like, “I have never been in trouble before.” Or opening the door to prior

convictions could be done by a stupid lawyer defense lawyer who calls a character witness under R404 for the

defendant but opens the door to convictions through questions to the character witness about the defendant

character trait under R404 or truthfulness under R608(b).

Bias is never collateral means that a lawyer can always impeach a witness intrinsically (in cross examination

when the witness is currently on the stand), and with the proper foundation (meaning the lawyer attempted to

impeach intrinsically when the witness was on the stand), the lawyer can use extrinsic evidence (another witness

or a document) to impeach the witness who is not currently on the witness stand.

Intrinsic impeachment. Asking this witness questions about the witness’ testimony while the witness is on the

witness stand..

Extrinsic impeachment. Using a document to impeach this witness or using a second witness to impeach the

witness who had testified but who denied the impeachment.

Refrigerator provision of R609. Convictions more than 10 years old (if the sentence did not include

incarceration, or release from incarceration more than 10 years ago) are subject to what I call the “refrigerator

provision” of R609. These 10-year-old convictions are like food that has been in your refrigerator for more than

10 years. It is stale and is most likely to be thrown out.

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Table Of Contents Introduction ............................................................................................................................................. iii

Origins of the Cartoons in this Book ....................................................................................................... iii

Changing the Image of Legal Humor from Old White Guys ................................................................. iv

Why Use Cartoons in a Class? ................................................................................................................ iv

Acknowledgements ................................................................................................................................. iv

How to Use this Book .............................................................................................................................. iv

Barkai-isms in this Book ......................................................................................................................... v

Regarding Copyright ................................................................................................................................ v

Barkai-isms Glossary for Evidence ......................................................................................................... vi

Table of Contents .................................................................................................................................. viii

List of Types of Cartoons ...................................................................................................................... viii

Cartoons & “Winning Captions” .............................................................................................................. 1

How to Present a Cartoon in a Class or Training ................................................................................. 140

How to Use Cartoon Captioning Questions on Exams ........................................................................ 140

Encouraging You To Try A Cartoon Captioning Contest .................................................................... 141

Sample Cartoon Page from a Barkai Evidence Exam ......................................................................... 142

Barkai 1-page CV ............................................................................................................................... 143

Barkai Evidence Publications ............................................................................................................... 144

Acknowledgements & Thanks You ...................................................................................................... 146

Index of Captions by Evidence Topics ................................................................................................. 147

Index of Captions by Federal Rules of Evidence ................................................................................ 150

Dedication ............................................................................................................................................. 152

Teaching Evidence Since 4 B.C. ......................................................................................................... 152

About the Author .................................................................................................................................. 152

List of Types of Cartoons

Cartoons Description # Captions

23 Judges 264

12 Prisoners 135

11 Dogs 129

4 Other critters 100

4 Lawyer-Client meeting 37

2 Bedtime 31

2 Pearly Gates - Heaven 18

2 Bouncers 57

2 Counseling on couch 17

1 Lawyer & client before judge 14

1 Ejecting lawyer from court 42

1 Viking 13

Other 34

65 Total 891

1

Judges - Art by Tim O’Brien, (TKO), CartoonStock

Suggestions & Challenges:

Hearsay, residual exception, impeachment, objection,

learned treatise

What’s your caption?

2

3 Judges - Art by Tim O’Brien, (TKO), CartoonStock

1) “Don’t worry about the rules of evidence. Just look serious and nod.”

2) “Look how far we got without really knowing evidence.”

3) “Overruled. Pass it on.”

4) “Should we overrule? I should have paid more attention in evidence class.”

5) “You actually remember all the hearsay exceptions? I’m impressed!” R803, R804

6) “I don’t think Sally is going to go for a hearsay catchall exception.” R807 (Residual exception)

7) “If we just take judicial notice of all the facts, we can go home, right?” R201

8) “I wish there were a rule allowing us to smack their heads every time they make those long

objections.” R103

9) “What exactly is collateral again?” (Impeachment)

10) “Why didn’t Scalia just tell us what is testimonial?” (Confrontation/Crawford)

3

4 Hawaii Law School Women Judges, photoshopped by John Barkai


Restyle, habit, character, competence, hearsay, best

evidence, sleeping


4

4 Hawaii Law School Women Judges, photoshopped by John Barkai

11) “They “restyled” the rules of evidence. Don’t you think it’s time they restyled the robes?”

12) “Hey, is that admissible? I forgot my Emanuel’s at home.”

13) “This guy must have skipped evidence the day they did the best evidence rule.” R1002

14) “Shouldn’t it be called the HEREsay rule?” R801

15) “I thought “Restyled” was a TV show on the E channel.”

16) “We’re in Hawaii, so I don’t think of sleeping judge is enough misconduct for a new trial.”

(State v. Yamada 108 Haw. 474 (2005) (A sleeping juror.)

17) “Just because I’m not competent to testify at trial doesn’t make me incompetent!” R605

18) “Psst … I still don’t understand hearsay.” R801

19) “What’s the difference between admissions and statements against interest again?”

R801(d)(2), R804(b)(3)

20) “Can you believe it? He used the smell of SPAM to refresh memory.” (Barkai-ism)

5

3 Male Judges with Flag - Art by Joseph Mirachi


Hearsay, excited utterance, competence, habit


6

3 Male Judges with Flag - Art by Joseph Mirachi

21) “I tried to give Barkai my resume so that I could be a guest speaker in his class, but he said I would

have to authenticated it as an ancient document” R803(16)

22) “Maybe if we could offer him a nolo plea, I could still make my tee time.” R410

23) “O.K. Heads we’ll call it “hearsay” and tails it is “not hearsay.” R801

24) “Ah, what is the best evidence rule again?” R1002

25) “You couldn’t get an excited utterance out of me now if you paid me.” R 803(2)

26) “He’s kidding, right?”

27) J1:” I still don’t know the hearsay exceptions.”

J2: “Sshh. We’ve made it this far.” R803/804

28) J1: “Yesterday someone had the audacity to tell me I wouldn’t make a competent witness.”

J2: “Don’t be offended, they just meant you shouldn’t testify in a trial where you are the sitting

judge.” R601/605

29) “He’s been convicted of the same offense several times. It might be a habit.” R406

30) “Those “ancient documents” were created before 1998? So, what does that make me? R803(16)

7

3 Judges - Art by Mallory Hee


Judicial Notice


8

3 Judges - Art by Mallory Hee

31) “I think we can take judicial notice. It seems to be local common knowledge that the defendant’s

lawyer is an idiot.” R201

32) “Can we take judicial notice that his lawyer is ripping him off for attorney fees?” R201

33) “Sometimes I can’t tell if something is ripe for judicial notice or if I just have better common sense

than others.” R201

34) “Can we take judicial notice that cross-examining witnesses should take no more than an hour

because we will stop paying attention?” R201 R611

35) “Shall we take judicial notice that this lawyer has no idea what he is talking about?” R201

36) “Everyone knows Facebook is “the Devil.” R201 (Judicial notice)

37) “Can we take judicial notice that the bar results are out, and new lawyers will soon appear before us

making bad objections?” R201, R103

38) I am taking judicial notice of the fact that its lunch time, and counsel won’t stop talking.” R201

39) “To be honest, I’d reject more of this evidence, but I’m afraid of being overturned on appeal.”

40) “I wish we could tell the jury what a jerk this guy is.”

[In some states and the federal courts, the judge can comment to the jurors on the evidence; in

other jurisdictions the judge cannot comment, e.g. Haw. R. Evid 1102. However, this comment

probably would be inappropriate.]

9

4 Barkai Family Judges


Presumptions, privilege, confrontation, Twitter feed,

outlines, robes


10

4 Barkai Family Judges

41) “Do we need an interpreter for that lawyer or was she just giving us one of Professor Barkai’s

Barkai-ism acronyms?” R604

42) “How do you feel about presumptions?” R301

43) “But who am I to judge?”

44) “Attorney-client privilege? What about judge-to-judge privilege?” R501

45) “Let’s just pretend we know what “testimonial” means – they’ll never know.”

(Confrontation/Crawford)

46) “If I haven’t had my coffee, everyone is guilty until proven innocent.” R301 (Presumptions)

47) “The rules say everyone is competent to be a witness. Why not us?” R601 R605

48) “We are the gatekeepers you know.” R702

49) The entire defense collapsed when the defendants Twitter feed was introduced as an admission.

R801(d)(2)

50) “To tell you the truth, I honestly hate these damned robes.”

51) I am taking judicial notice of the fact that its lunch time, and counsel won’t stop talking.” R201

11

2 Barkai Judges Walking the Halls of Justice – photoshopped by John Barkai


Law school, hearsay, Snapchat, flip a coin


12

2 Women Judges Walking the Halls of Justice – photoshopped by John Barkai

52) “How the hell should I know if it was admissible?”

53) “So, tell me again, what exactly does “truth of the matter asserted mean?” R801

54) “Tell me again, why did we go to law school?”

55) J1: “I heard you like to rely on hearsay evidence.”

J2: “Yes. I like to live dangerously.” R801

56) “Would Scalia have approved?”

57) “For once I’d just like to hear hearsay to hear what others have to say.” R801

58) “Where does Snapchat fit into the best evidence rule?” R1002

59) “Ah great. They “restyle” the rules and make it just as confusing.”

60) “Can you explain to me again what they meant by, “Bias is never collateral”? (Bias, collateral)

61) “I don’t know either. I say we just flip a coin and go with it.”

13

Family Court – Grandparents & grandkids


Expert, hearsay, balancing prejudice, confrontation


14

Family Court – Grandparents & grandkids

62) “Do we have to presume his innocence?”

63) J1: “Should we torment the lawyers? J2: “Need you ask?”

64) J1: “Are you going to weigh the probative value versus the prejudicial effect in today’s hearing?”

J2: “I think I’m going to go with “how I feel.” It’s what my gut is telling me to do.” R403

65) “So, about that sixth amendment issue. Heads or tails on excluding the unavailable lab tech’s

evidence?” (Confrontation/ Williams).

66) “Let’s change that rule. They’ll love it.”

67) “What were all those hearsay rules and exceptions again? Been a while since Prof. Barkai’s

evidence class.” R801-807

68) J1: “Have you memorized FREs by number?”

J2: “No. I can barely remember what day it is.”

69) “The best part of being a judge is calling the shots.”

70) “Does this robe make me look fat?”

71) “Can we take judicial notice that this witness is an idiot?” R201

15

7 Judge Barkai Panel - Art by Mark Anderson – photoshopped by John Barkai


Evidence class, hearsay, 403 balance, confrontation,

Hillmon


16

7 Judge Panel - Art by Mark Anderson – photoshopped by John Barkai

72) “He must be one of Barkai’s evidence students.”

73) “If you think this is bad, you should have taken Barkai’s evidence final exam.”

74) “We could call Professor Barkai, and he could tell us how to rule on the evidence.”

75) “Every time that lawyer tries to impeach with the document, he says, “The Queen is dead.”

Is that another thing he learned in Barkai’s evidence course? If so, do you have any idea

what it means?” R613(a).

76) “Remember Evidence class. Would Barkai have ruled the same way? “Nah!”

77) “Wait, I forget. Is bias collateral?” (Bias/collateral) (Barkai-ism)

78) “Thank goodness for Barkai or I would have no clue what hearsay is.”

79) “Just unbelievable. She must not have been one of Barkai’s students.

She made a confrontation clause objection in the civil case. [Confrontation/Crawford]

80) J1: “You know what I love saying?”

J2: “Overruled?”

J1: “No, I like saying “that’s enough evidence for today.”

J2: “Barkai’s students love to hear that too

81) “Didn’t you even know that the Barkai’s left shoe could be used to refresh memory?”

R612 (Refreshing memory) (Barkai-ism)

17

Confrontation Judges Walking to City Court - Art by Mark Anderson, photoshopped by John Barkai


Confrontation, Crawford


18

Confrontation Judges Walking to City Court – Art by Mark Anderson, photoshopped by John Barkai

82) “Do you understand Crawford?” (Confrontation/Crawford)

83) “Well, let’s call the lawyers to the bench. Maybe they can figure out what “testimonial” means.”


84) “Crawford...Smawford. Let’s just admit it!” (Confrontation/Crawford)

85) “Why did the Supreme Court have to decide Crawford that way – just when we thought we knew the rules of

evidence?” (Confrontation/Crawford)

86) “Why did we vote with the majority in Crawford? Now we have to figure out what we meant.”


87) “This Crawford thing is a bad idea. I don’t even know if it’s testimonial or not.” (Confrontation/Crawford)

88) “What does the Crawford ruling mean?” (Confrontation/Crawford)

89) “Let’s make it easy on ourselves. Heads we call it “testimonial” and tails we call it “non-testimonial.”


90) “What is “testimonial” testimony?” (Confrontation/Crawford)

91) “Apparently, Hawaii is still using Roberts. I guess we weren’t too clear about “testimonial.”


19

Expert Judges, photoshopped by John Barkai


Experts


20

Expert Judges, photoshopped by John Barkai

92) “Ever hear the one about the expert? It’s to Frye for.” R703

93) “J1: “Why is the defendant calling a magician as an expert witness?”

J2: “Ever since Daubert’s liberalization of admissible expert opinions, people think they can just

pull expert opinions out of thin air.” R702

94) “I can’t understand what this expert is talking about.

Can we exclude his testimony because I’m confused?” R702 R403

95) “Since Daubert, I highly recommend Google glasses.” R702

96) “You mean the Supremes considered Hawaii’s Montalbo factors when deciding Daubert but were

too proud to ever admit it?” R702 (Hawaii decided State v. Montalbo, the Hawaii expert witness

case, a year before the U.S. Supreme Court decided Daubert)

97) “I know you sentenced him four times, but you still can’t be an expert witness on his criminal

history.” R702

98) “When the supposed experts said, “I am a doctor, a juris doctor” I threw him out of court.” R702

99) “Who knew that being a gatekeeper would be so difficult? Those tollbooth operators seem to be so

happy when they are on the job.” R702 [Daubert “gatekeeper” concept.]

101) “Because of Daubert, I think I will pursue my new-found love for science.” R702

101) “For the last time, “Because I said so” doesn’t satisfy any of the Daubert factors.” R702

21

UH Walking Judges, photoshopped by John Barkai


Red Sox, property, excited utterance, my seminar paper


22

UH Walking Judges, photoshopped by John Barkai

102) So then he said it was a “harrowing experience,” just as bad as last season’s Red Sox team.” R901

(Barkai-ism)

103) “I know judges can’t testify, but I’m the only witness alive from the last time the Cubs won the

World Series.” R605 (a pre-2016 caption)

104) Those students thought Property was hard. Wait till they take Evidence.

105) “What do you mean I can’t admit my own opinion? I’ve been on the bench so long, that I’m an

irrebuttable presumption or as good as an ancient document. R301 R803(16)

106) “I dread going home. Everything my wife says is an excited utterance.” R803(2)

107) I’ll take judicial notice of the fact that evidence is a harder law school subject than either con law

or real property. R201

108) “Do you think we can now be eligible for that spousal privilege provision dear?”

R501 (Spousal privilege)

109) “It’s good to know that my old second-year seminar paper is still making the rounds, but I don’t

remember etching it on to a stone tablet.”

110) “Damn these millennials and their “Lexis Nexis” machines.”

111) “SCOTUS: So much for our retirement plan #DumpTrump.”

23

7 UH Judges on the Bench, photoshopped by John Barkai


Settle, work product, Crawford, shoe, Hillmon


24

7 UH Judges on the Bench, photoshopped by John Barkai

112) “$50 says if I drop some hints during oral argument about what I am thinking, I can get them to

settle before we have to write a decision.” R408

113) “He wrote something on the back of his losing ticket at the track and now he claims it’s “work

product.” He’s got guts!” R502

114) “Yeah I liked some of the pre-restyled rules better too, but they claim there are no substantive

differences, so let’s stop talking about that.”

115) “I wish I had paid more attention in Evidence class.”

116) “Really? But Professor Barkai always used to say, “Bias is never collateral.” (Barkai-ism)

[Barkai has students repeat out loud multiple times during the semester. They remember it.]

117) “Does anyone know where the Crawford cases are taking us?” (Confrontation/Crawford)

118) “She used her right shoe to refresh his recollection. Can she do that?” R612 (Refreshing

recollection) (Barkai-ism)

119) “You tell me. I got a C+ in Evidence.”

120) “Do you think Hillmon looks like Walters?” R803(3)

(Barkai shows pictures of both Hillmon and Walters in class)

121) “I told you not to take judicial notice that the alumni won the Ette Bowl football game last year.

You’ve jinxed it for next year.” R201 (Ette Bowl is our law school’s women’s football game where

the current women students play the women alumni.)

25

3 ADR Judges, photoshopped by John Barkai


Prior consistent statement, objection, judicial notice,


26

3 ADR Judges, photoshopped by John Barkai

122) “Are you kidding me? They want to admit it as a prior consistent statement but her client has never

said the same thing twice?” R801(d)(1B) (Prior consistent statement)

123) “So the stool pigeon changed his tune again and recanted his prior recantation of what he testified

to at trial? As I tell my former law partners, I can even make this stuff up.”

F804(b)(1) (Former testimony) (State of Hawaii v. Lincoln )

124) “Just because you said it yourself, doesn’t make it self-authenticating.” R902

125) “I told his lawyer that judicial notice doesn’t mean noticing how nice he looked today.” R201

126) “Yep, having three of us will solve that pesky 605 problem.” R605

127) “I don’t’ know if it was admissible, but it looked and sounded good to me.”

128) “Those attorneys must have a reason for objecting, but I have no idea why they are objecting.”

R103

129) “Peter, he said “Objection, relevance,” not “objectionable relatives.” R103

130) “What is this KRAP lawyers are objecting to?” R803(6) (Barkai-ism)

131) “If we just take judicial notice of all the facts, we can go home, right?” R201

132) J1: “How does Prof. Barkai keep winning the faculty cartoon captioning contests?”

J2: “Oh, haven’t you seen his final exams?”

27

7 Judges – Art by 123RF Photos, photoshopped by John Barkai


Ancient document, evidence exam, bar exam, presumption


28

7 Judges – Art by 123RF Photos, photoshopped by John Barkai

133) “What nerve. That lawyer started to call me an ancient document.” R803(16)

R901(8)

134) Chief Justice Rehnquist to Justice Kennedy:

“So whaddya think, Tony, do I qualify as an ancient document?” R803(16) R901(8)

135) Judges, talking about law as if it mattered.

136) “I’m glad I’ll never have to take another evidence exam.”

137) “For the life of me, I have no idea what is admissible. I just fake it.”

138) “I think black is your color.”

139) “I love this job. I don’t’ even have to go to the locker room to change before

aerobics class.”

140) “I can’t believe that lawyer passed the evidence section of the bar exam.

141) “Hearsay .... Hearsay ... Just let it all in. That’s what I say – there’s bound to be an

exception anyway. R801

142) “All these years and I still don’t understand what a bursting bubble presumption is.”

R301

29

The Best Research Judges, photoshopped by John Barkai


Learned treatise, Irving Younger, evidence exam


30

The Best Research Judges, photoshopped by John Barkai

143) “With all the differences between the Federal Rules of Evidence and the Hawaii Rules of Evidence,

I’m sure glad I don’t’ have to take an evidence exam.”

144) “I know we could call the witness of our own, but why would we want to? Let’s just convict

and go home. Let the appellate court sorted out.” R614

145) “Finally, we get to decide whether Emanuel’s is a “learned treatise.” R803(b)(18)

(At least 12 states do not have a learned treatise exception to the hearsay rule.)

146) “Someone’s a little “hearsay happy” today.” R801

147) “Do you ever feel like no one cares if you are listening or not?”

148) “You know, it was much easier to stay awake in court when Irving Younger was around.”

149) “Did he say he wants my left shoe?” R612 (Refreshing memory) (Barkai-ism)

150) “You won’t believe what evidence she admitted. It’s like she forgot about rule 403.” R403

151) “I’ve been studying in evidence law since I was 23. I’m finally ready for my first trial!”

152) J1: “Just 3 hours ago, I could’ve sworn I was only 26 years old.”

J2: “Evidence and law will do that to you.”

153) “Do you think the jury noticed I fell asleep during closing arguments?”

31

Staff & Deans Court, photoshopped by John Barkai


Refresh memory, Crawford, limiting instruction, discretion,

impeach jury verdict


32

Staff & Deans Court, photoshopped by John Barkai

154) “I can’t find my left shoe. Could you refresh my memory?” (Refreshing memory) (Barkai-ism)

155) “Is it me, or is everything about Crawford lately?” (Confrontation/Crawford)

156) “Evidence is as essential to law as gravity is to earth.”

157) J1: “Do you think we should give a limiting instruction?

J2: “Why not, the jurors aren’t going to understand it anyway.” R105

158) “I actually just sustain or overrule based upon how hungry I am.” R103

159) J1:” He has a habit of getting on my nerves.”

J2: “No, that’s just his character.” R404, R406

160) “Here we go again with that 403 balancing test. Let’s try not to abuse our discretion this time.”

R403

161) “We don’t know if we should sustain the objection because we never understood hearsay, or just

flip a coin.” R801

162) “This is taking too long. Can’t we just judicially notice that he’s guilty? R201

163) “Now honestly, don’t you think that the dubious probative value of basing an entire semester’s

grade on one exam is more than substantially outweighed by the prejudicial effect of the exam

format itself?” R401 R403

164) “I agree there are a few circumstances where a juror can impeach the jury’s verdict, but the

statement, “We done him wrong,” does not meet that standard.” R606

33

Ka Huli Ao Judges – Art by Malloy Hee, photoshopped by John Barkai


Adjudicative facts, competent, probative value,

presumption


34

Ka Huli Ao Judges – Art by Malloy Hee, photoshopped by John Barkai

165) “Do you remember the difference between adjudicative facts and legislative facts?” R201

166) “That witness was an insane, atheist felon, but he was still competent to testify.” R601

167) “I think that’s how presumptions work.”

168) “Heads says the probative value outweighs its prejudicial effect, tails says it doesn’t.” R403

169) “Did you really take judicial notice on “da kine?” (“da kine” is Hawaiian Pidgin for “that thing”)

R201

170) “So, this is our punishment for learning the rules of evidence. Now we have to spend our lives

listening to attorneys who love the sound of their own voices.”

171) “Don’t you think it’s well past time for a limiting instruction?” R105

172) “So I said, “Is that hearsay? Did you hear what I say?” R801

173) “He looked guilty, so I used my “discretion.”

174) “Are you sure Barkai’s left shoe is the best evidence?” R1002 (Barkai-ism)

175) “I think people are starting to catch on that even we don’t really know how to define presumption.”

R301

35

Richardson Judges – photoshopped by John Barkai


Ancient document, Daubert, underwear, collateral


36

Richardson Judges – photoshopped by John Barkai

176) “How dare they say my brain is an ancient document? R803(16)

177) “Sheesh, all this Daubert gatekeeper stuff is forcing me into an early retirement.” R702

178) “That can’t be reasonably relied upon by expert in that doctor’s field. The only thing you’ll

find in that doctor’s field are ducks that say “Quack.” R703

179) “I love you man, but you are not getting my Bud.”

180) “I think I forgot to put on my underwear today.”

181) “No, I wasn’t paying attention either.”

182) J1: “Does this refresh your memory?”

J2: “Yes. The defendant was eating broccoli” R612

183) J1: “Have you memorize the FRE by number?”

J2: “I can barely remember my spouse’s birthday.”

184) “Did you hear all those objections? What was that all about?” R103

185) “He asked me to take judicial notice of the fact that the FRE allows me to take judicial notice.”

R201

186) “I know bias is never collateral, but cases involving large family businesses drive me nuts.”

(Bias/collateral) (Barkai-ism)

187) J1: “Barkai said you can keep food in the refrigerator for up to 10 years and it will still be good.”

J2: “He was just kidding. He was trying to get you to remember that under R609(b), after 10 years

prior convictions may be inadmissible. They are just too old for the court to eat them.” R609 (The

“refrigerator provision” - Throw it out if it is over 10 years old.)

37

UH Judges - photoshopped by John Barkai


Character evidence, outlines, 403 balancing


38

UH Judges - photoshopped by John Barkai

188) “Maybe I have been practicing law too long. I was just telling one of my new law clerks about

authenticating a telephone conversation by calling a business number listed in the phone book,

and my clerk said, “What’s a phone book?” R901(b)(6).

189) “Shouldn’t hearsay be called “there-say?” After all, the statement in question was declared out

“there,” not in “here” (the courtroom) R801

190) “I told his lawyer that judicial notice doesn’t mean noticing how nice he looked today.” R201

191) “You don’t happen to have an extra 403 balancing scale do you?” R401

192) “That’s funny; I’m not wearing anything under my robes either.”

193) “I just let a 4-year-old witness testify, and the defense didn’t even try to impeach! I guess every

person is competent to be a witness.” R601

194) “Wait … you’re sure our character evidence doesn’t come in right?” R608

195) J1: “You’re telling me, he made a dying declaration, but he didn’t die?”

J2: “Exactly.” R804(b)(2)

196) “I wish we had outlines for the courtroom. Outlines were the only way I ever passed my evidence

exam.”

197) “So why did he give the witness his left shoe? Sorry, I don’t get it.” R612 (Refreshing memory)

(Barkai-ism)

39

Hawaii Law Deans as Judges - photoshopped by John Barkai


C in evidence, Justin Bieber, darts, privilege


40

Hawaii Law Deans as Judges - photoshopped by John Barkai

198) “Now can you tell which of us got C’s in evidence?”

199) Let’s be honest. None of us knows much about practicing law anymore.

We should ask Barkai for an evidence refresher.”

200) “Of course, I was an excellent lawyer. It said so on my website.

201) “I was a poli sci, not a science major. How are we supposed to know if he applied scientific

principles and methods reliably?” R702

202) “I heard you granted judicial notice about Justin Bieber. Who’s that?” R201

203) “That lawyer has already used “KRAP” and “CRUD.” If he busts out a SPAM shirt, I’m declaring

a recess and will have a little chat with Professor Barkai.” (Barkai-ism)

204) “Who are we to judge?”

205) “Everyone assumes we know all about the rules of evidence. I don’t. Do you?”

206) “Do you remember how we decided whether the statement was testimonial or not testimonial last

time? Was it darts or a coin toss?” (Confrontation/Crawford)

207) D1: “Then the lawyer said, “But Your Honor, under R104 you are not bound by the rules of

evidence when deciding preliminary questions. ”

D2: “I said, “It’s a privilege to rule against you.”

208) “The lawyers better wise up. If I ask a question, the answer is relevant evidence.” R401

209) “No. Seeing something on Fox News doesn’t give you personal knowledge.” R602

41

Detroit Judges – photoshopped by John Barkai

(Detroit Recorder’s Court – where Barkai did criminal defense work)


Subsequent remedial measures, weight v. credibility, Rule

403


42

Detroit Judges –photoshopped by John Barkai

Detroit Recorder’s Court – where Barkai did criminal defense work)

210) “Thanks to Rule 403, we’ve still got time for a round of golf this afternoon.” R403

211) “Do you think I can call Prof. Barkai for a little hearsay refresher? I have a trial at 1:30.” R801

212) “So, I asked my son about the dent in the car and he replied, “Subsequent remedial measures are

irrelevant.”

213) “So, I told my wife she was wrong, and she told me, who was I to judge.”

214) “I know I should’ve taken judicial notice of the fact that a thing called “the Internet” exists, but to

tell you the truth, I don’t have a clue in the world how it works so it ain’t common knowledge to

me!” R201

215) “So, the attorney takes off his shoe and says, “Now do you remember?”

R612 (Reference to Barkai’s statement that you can refresh memory with anything, including his

left shoe) (Barkai-ism)

216) “Weight versus credibility? I have that conversation enough with my wife!”

217) J1: “What do you think about Rule 605? A bunch of baloney?”

J2: “I don’t mind. Less work for me.” R605

218) “I know I should’ve taken judicial notice of the fact that a thing called “the Internet” exists, but to

tell you the truth, I don’t have a clue in the world how it works so it ain’t common knowledge to

me! I’m getting too old for this. I gotta retire.” R201

219) “Was it my right shoe that can be used for refreshing recollection?”


43

Prison Yard - Art by Micha Richter (1974)


Character witness, good lawyer, confrontation, co-

conspirator


44

Prison Yard - Art by Micha Richter (1974)

220) “What a coincidence, my lawyer had Barkai for evidence too!”

221) “You know Larry, I don’t think I’d make the best character witness.” R404, R608(b)

222) “My lawyer was wrong! That stuff was admissible the whole time.”

223) “I wish I had known that what other co-conspirators say could be used against me too.”

R801(d)(2)

224) Q: “Do you know a good lawyer?” A: “Obviously not.”

225) “At least nobody here can vote for Donald Trump!”

226) “Well at least I’m not in law school anymore.”

227) “Who is this new Crawford guy?” “ (Confrontation/Crawford)

228) “Experts on poor character.” R702, R404

229) “Prejudicial effect, whatever that is, must not weigh too much.” R403

230) “So, my lawyer told me, evidence of prior bad acts is not admissible. Yeah, right. So why am I

here?” R404

231) P1: “I thought dead men tell no tales.”

P2: “Nobody ever told you about prior testimony and dying declarations?” R804(b)(1)&(2)

232) P1: “What are you in for?”

P2: “If you are asking me if I am trustworthy, I’m in for grand theft. Otherwise, I’m innocent.”

R608

45

Another Day Inside - Art by Chon Day (1947)


Evidence professor, confrontation, final exam, privilege


46

Another Day Inside - Art by Chon Day (1947)

Original caption – “The jury just laughed at my alibi. It’s a wonderful feeling being able to make people laugh.”

233) “I’m definitely getting out. My attorney took evidence from Prof. Barkai.”

234) “So roomie, did your lawyer fail the evidence exam too?”

235) “That judge was serious about knowing the rules, huh?”

236) “Don’t worry, I can’t testify about anything you tell me. That would be hearsay.” R801

237) “It all started when I failed that evidence exam.”

238) “This is what I feel like during finals time.”

239) “You were Barkai’s student too, huh?”

240) “My lawyer went to school at the University of Hawaii Law School too.”

241) “So, then I objected.” R103

242) “Don’t worry, in Hawaii this won’t count against you for impeachment.” Haw. R. Evid. 609

243) “I guess Crawford didn’t help us there.” (Confrontation/Crawford)

244) “Next time you should hire one of Barkai’s former students. I didn’t either.”

245) “Why are you asking what’s behind my back? I have a reputation for peacefulness.” R404

246) “Let’s play telephone.” R805 (Hearsay within hearsay).

247) “I’m telling you it was all prejudicial.” R403

47

Hanging Prisoners – Art by Mallory Hee; photoshopped by John Barkai


Chain, privilege, law grad, harmless error


48

Hanging Prisoners – Art by Mallory Hee; photoshopped by John Barkai

248) “This gives a whole new meaning to “chain of custody.” R901

249) “Why did your wife waive her spousal privilege? Forget her birthday?” R501

250) “I was told the truth would set me free. What did your lawyer tell you?”

251) “You should have hired a University of Hawaii law grad.”

252) “Before we were married, I told my wife everything I did. Now I know that was not privileged.”

R501 (Spousal privilege. In some states, confidential premarital conversations between spouses are

privileged; in other states they are not.)

253) “Do you think this counts as impending death for a dying declaration?” R804(b)(2)

254) “You took Barkai’s evidence class? Let me guess. You got a low score too?”

255) “I know Barkai told us to avoid SPAM, but that’s all they give us in here.” (Barkai-ism)

256) “Don’t worry. We can claim privilege. Trust me. I’m a lawyer.” R501

257) “Do you think this will hurt my reputation in the community?” R404

258) “Harmless error my a..!” R103

49

Cell Beds – Art by Mark Anderson


Network, refresh memory, admission, witness, cell number,

privilege, circumstantial, text, hearsay exception


50

Cell Beds – Art by Mark Anderson

259) “Hi. I’d like to add you to my Professional Network on “LinkedIn.”

260) “This prison is refreshing my memory of my marriage.” R612 (Refreshing memory)

261) “Don’t worry they said. If you’re going to join our conspiracy, nothing we’ve already said can be used

against you. So why am I here?” R801(d)(2)

262) “I just stayed quiet while my friend ratted me out, but it won’t be admissible as an adoptive admission by

silence because I was in the presence of a cop and I had no duty to respond.” R801(d)(2)(B)

263) “No way! My ex-wife was the prosecutor’s witness too!”

264) “I just knew I shouldn’t have said on the stand that I’ve always been a peaceful guy.” R404

265) “So, your trial was in federal court too? R609 R612 (Some FREs favor the prosecution more than evidence

rules of some states.)

266) “I can’t believe my own personal laptop turned state’s evidence.”

267) P1: “We should hang sometime.”

P2: “Yeah. What your cell number?”

268) When you find out you aren’t the only one who opened the door to character evidence. R404

269) “After I pass the bar, they can’t make me testify against you.” R501 (Lawyer-client privilege)

270) “What happened? They told me all the evidence was just circumstantial, but here I am.” R401

271) “I accidentally texted the getaway driver on Facebook, and the prosecutor “liked” my post.”

272) P1: “Do you know any good lawyers?”

P2: “No, and I guess you don’t either.”

273) “I thought I was home free, but they brought me in on a hearsay exception.” R803, R804

274) “I’ll be an expert witness for you based upon my knowledge, skill, education and experience, I could say to a

reasonable degree of criminal certainty that the burglary was almost perfect.” R702

51

Hanging Prisoners - Art by Rex May - Baloo & Cartoon Stock


Chain, character witness, prior conviction, evidence class,

rules of evidence, harmless error


52

Hanging Prisoners - Art by Rex May - Baloo & Cartoon Stock

275) “This isn’t what I thought the judge meant when she talked about the “chain of custody.” R901

276) “Weren’t you my character witness?” R404, R608

277) “We should have studied more in evidence class!”

278) “I thought grand jury testimony was admissible under a hearsay exception.

Crawford changed that?” (Confrontation/Crawford)

279) “Things could be worse. We could be tested on the Hawaii Rules of Evidence as well as the

Federal Rules!”

280) “This is what happens to law students who don’t take evidence.”

281) “It’s too late now. Whatever dying declaration you make, I’m the only one who will hear it, and

I’m going with you!” R804(2)

282) “I should have known that saying I was at home shaving that morning was a bad alibi.”

283) “P1: The good news is: 10 years after our release, they can’t use this conviction as evidence of our

bad character for truthfulness.”

P2: “That makes me feel so much better than you will feel if I ever get my arms free.” R609

284) “They used my confession against me. I thought that was hearsay, but now I know better.”

R801 (Admission, statement of a party opponent)

285) “With all those evidence rules, you’d think they’d get us out of here with one of them!”

286) “I rather be doing this than studying the differences between the Federal Rules of Evidence and the

Hawaii Rules.”

287) “Sorry, I guess my statements implicated you as a co-conspirator after all.” R801(d)(2)

53

Cell with Toilet – Art by Mark Anderson; Photoshopped by John Barkai


Open the door, toilet, social media post, bet evidence,

statement against interest


54

Cell with Toilet – Art by Mark Anderson; Photoshopped by John Barkai

288) “My case went down the toilet because my attorney did not pay enough attention to the rules of evidence.”

289) “I flushed the KRAP down the toilet, but then my lawyer told me it was actually cCRUD that he wanted to

use for my case.” R803(6) R801 (Barkai-ism)

290) “Yeah, my objection to my wife’s testifying against me was overruled. They said it wasn’t confidential

spousal communication. I guess I shouldn’t have invited the gang over to watch American Idol that night.” R501

291) “That KRAP was my business record that they used against me. I should have filed it in a round file like this

one.” R803(6) (Barkai-ism)

292) “I see you opened the door too.”

293) “Well if we’ve learned anything, I guess we shouldn’t have updated our escape route on Twitter and

Facebook.” (Social media)

294) “So, your wife didn’t use her spousal privilege either?” R501 (Trammel)

295) “See what happens when you lawyer doesn’t pay attention in Evidence class?”

296) “It’s easy. It’s called a “Statement Against Interest.” Just tell them you overheard some guy talking in the

chow line who told you I was innocent, and you can’t find them now.” R804(b)(3)

297) “My wife and I are really close. I tell her everything so she can’t testify against me.”

R501 (Marital privilege – maybe not with Trammel)

298) “My lawyer said he should have taken Professor Barkai for evidence.”

299) “At my disciplinary hearing, they dismissed my case for lack of identification. They couldn’t decide whether

to call the number on my shirt an inscribed chattel or to apply the best evidence rule.” R1002

300) “My lawyer didn’t know his rules of evidence very well.”

55

More Prisoners - Art by Mark Anderson


Subsequent remedial measure, diaries, waiver, privilege,

lawyer, judge, rules, catch-all exception, dying declaration


56

More Prisoners - Art by Mark Anderson

301) “The judge wasn’t amused when I told him throwing the gun into the lake was a subsequent remedial

measure and inadmissible to prove culpable conduct.” R407

302) “Sure, the boys might say it’s only a prison romance, but they can’t make us testify against each other if we

got married first.” R501 (Marital privilege)

303) “Well, we’ve all learned one thing from all this – burglars shouldn’t keep diaries.” R801

304) “Congrats! I heard you’re planning to marry the star witness in your case.” R501

305) “You think you are here because the rules of evidence made no sense? Welcome to the club.”

306) “Do you think the FRE recognizes White Privilege?” R501

307) “Bad lawyer or bad judge?”

308) “I’m being called as an expert witness based on my years of experience.” R702

309) “Funny. My wife waived her spousal immunity too.” R501

310) “Yeah man, you just have to marry her, then you’ll be safe from her testifying against you.”

R501 (Adverse spousal privilege. This might not work. Just ask Trammell)

311) “You think you’ve got attorney-client privilege in here? Guess again!” R501

312) “Oh really? My lawyer had Barkai for evidence too. There’s enough of us here to form a club.”

313) “The hearsay catch-all exception definitely caught me.” R807

314) “Yeah, I think you should’ve left out the part about planning to go to Crooked Creek.”

R803(3) (Hillmon doctrine)

315) “If I fail during this prison escape, I promise you a formidable dying declaration.” R804(2)

57

Sitting on a Cell Bed - Art by Mark Anderson, photoshopped by John Barkai


Circumstantial evidence, mercy rule, truthful, character,

confrontation, Crawford, Scalia, take the stand, timely

objection


58

Sitting on a Cell Bed - Art by Mark Anderson

316) “So, you’ve read Crawford and now you think they’re going to come down here and set you free?!

Sure thing, buddy! I bet Scalia himself will come down to let you out! Ha!” (Confrontation/Crawford)

317) “Take the stand,” my lawyer says. ‘What could it hurt?’ he says.” R404

318) “I am still waiting for my attorney’s timely objection.” R103

319) “First timer, eh? You’ll learn real quick not to talk about your ‘good character’ next time you testify.” R404

320) “I think I have a constitutional right to confront whoever made these uniforms.” (Confrontation/Crawford)

321) “All I said was, “I can’t believe it worked!” R801(d)(2)(A) (Admission/opposing party’s statement)

322) “My new lawyer took Barkai for evidence. I think I’ll be getting out soon.”

323) “Who knew that bringing in people to speak well of my character would end up hurting me in the end?”

R404 (Mercy rule)

324) “So, you testified to being an upstanding citizen, huh?” R404 (opened the door using the Mercy Rule)

325) “As it turns out, they didn’t really need a body. Circumstantial evidence was enough.” R401

326) “So apparently they can admit emails read by your employer. Does that sound fair to you?”

327) “My probation officer said, “You can tell me everything.” “What he didn’t tell me is that he would tell my

everything to everyone else.” R801 (Admissions)

328) “The cop asked me if I had a criminal record, so I told him I just committed 3 robberies in 1 hour.” R609

329) P1: “What kind of music do you like?” P2: “Criminal records. R609

59

Hanging by Thin Arms - Art by Mark Anderson


Chewbacca, pass-fail, confrontation, privilege, business

records, evidence class, best evidence


60

Hanging by Thin Arms - Art by Mark Anderson

330) “Is this where we take our evidence final?”

331) “My wife refused to claim the spousal privilege. Mine too.” R051

332) “See, this is why people lie in business records.” R803(6)

333) “How was I supposed to know that the Confrontation clause doesn’t mean I get to punch all the witnesses?”


334) “And so, my best bud told the judge what a truthful guy I was. Unfortunately, then the prosecutor called my

ex-wives to the stand.” R608, R501 (Trammel – Marital privilege)

335) “You know, I never actually confessed that we did it. All I did was nod my head in silence when I was

asked.” R801(d)(2)(B) (Adoptive admission)

336) “You were supposed to wait until after we finished robbing the bank to make an admission.” R801(d)(2)

337) “Damn, maybe I should have shown up to evidence class.”

338) “My bad. Who knew there was a hearsay exception for co-conspirators?” R801(d)(2)

339) “My “best” evidence wasn’t good enough.” R1002

340) “I guess my lawyer shouldn’t have taken evidence “pass-fail.”

341) “My lawyer tried the Chewbacca defense too.”

61

Prisoners Facing Each Other – Art by Mallory Hee


Crooked Creek, Hillmon, Sir Walter Raleigh, federal court,

confrontation, pre-marital conversation


62

Prisoners Facing Each Other – Art by Mallory Hee

342) “So then I told my lawyer, “Don’t worry. I married her. She can’t testify against me now.”

R501 (Different states have different views on privilege of premarital conversations. Some consider them

privileged; others do not)

343) “My present sense impression is, “This sucks.” R803(1)

344) “How did they know that I went to Crooked Creek with Hillmon?” R803(3) (Hillmon is the famous

statement of present intent hearsay exception. Walters wrote in a letter to his sister that he was going to

Crooked Creek with Hillmon.)

345) “I guess I shouldn’t have told the guy in the bar that I was just back from Crooked Creek.”

R803(3)

346) “Barkai was your lawyer too? Amazing!”

347) “So, it turns out the right to confront witnesses against you doesn’t include threatening them with a gun.”


348) “Too bad co-conspirator statements are not considered testimonial.” R801(d)(2)(E)


349) “Sir Walter Raleigh? I thought you had an iron-clad defense.”

350) “So apparently these days the spousal testimonial privilege belongs only to the testifying spouse.

Who knew that?” R501 (Adverse spousal testimony privilege – martial privilege)

351) “I guess I won’t be available to testify at your hearing after all.” R804

352) “You took the stand in federal court too?”

353) “Dude move over. I’m trying to maintain my attorney-client privilege.” R501

63

Cellmates Sitting & Standing – Art by Mark Anderson


Barkai-isms, SPAM, halo, my left shoe, big mouth, stupid

lawyer, arrests


64

Cellmates Sitting & Standing – Art by Mark Anderson

354) “I don’t know why the judge sent me to prison. My criminal record is not great, but of course some of my

warrants are “outstanding.”” R609

355) P1: “I thought we learned in evidence class that arrests are not admissible?”

P2: “That’s mainly true, but your character witness can be crossed about his opinion of you and your

reputation. If you ever get out, use another lawyer next time.”

R608(b), Michelson v. United States, 335 U.S. 469 (1948)

356) After the bigmouth defendant testifies that he has a peaceful nature. (Barkai-ism)

357) “You ain’t no angel anymore. That little halo you got to wear in your Hawaii won’t help you here buddy.”

Haw. R. Evid. 609 (Prior conviction impeachment) (Barkai-ism)

358) “So, what happened to your halo?” HRE609 (Prior conviction impeachment) (Barkai-ism)

359) “My left shoe? No, I think the blood hound used all my clothes to refresh.” R612 (Refreshing memory)

(Barkai-ism)

360) P1: “How did you end up here?” P2: “I have a big mouth and a stupid lawyer.”

[No impeachment by prior convictions for a criminal defendant in Hawaii unless the defendant opens the door

by claiming no prior contact with the police or his lawyer calls a character witness. HRE 609 (Barkai-ism)

361) “And then, the prosecutor gave the witness a shoe, told her to sniff it, and asked if now she remember what

was said. What was that all about?” R612 (Refreshing memory) (Barkai-ism)

361A) “I opened the door at trial, but I can’t do it here.”

65

Hanging Prisoner with Jester– Art by Mark Anderson


Hung jury, dying declaration, marital privilege, co-

conspirator exception, forfeiture by wrongdoing


66

Hanging Prisoner with Jester– Art by Mark Anderson

362) “I should have listened to my lawyer.”

363) “Want to be my character witness?” R404

364) “It could be worse; we could be a hung jury!”

365) “Should anyone find us and I’m already dead, make sure you tell them that I gave you a dying declaration

saying my ex-wife did this to me.” R804(b)(2)

366) “I’m pretty sure this counts as forfeiture by wrongdoing.“ R804(b)(5)

367) “Too bad co-conspirator statements are admissions.” R801(d)(2)

368) “Hang in there buddy, there are more hearsay exceptions.” R803 R804

369) “I guess the lawyer-client privilege does not protect me from malpractice.”

R501 (Lawyer-client privilege, exceptions)

370) “We weren’t so privileged after all. Our wives have all the privilege and all the money.”

R501. (Marital privilege – Trammel)

67

Viking – Opera Singer - Art by Mike Twony, (c)1987 The New Yorker Magazine


Viking, reputation, modus operandi, character, expert


68

Viking – Opera Singer - Art by Mike Twony, (c)1987 The New Yorker Magazine

371) "Well, Your Honor, I think it’s pretty clear that I’m an expert in all things “Viking.” R702

372) "No Your Honor, I’m not a flight risk."

373) "Absolutely! The defendant has a reputation in our community for peacefulness. Unlike most of us,

he sometimes refrains from pillaging the women and children when we go on our daily raids of

nearby villages." R404 R608

374) "You’re our expert on pillaging? Have your methods been peer-reviewed?” R702

375) "Are you competent to speak for Viking traditions?” R601 R702

376) "Your Honor, I can’t say it’s my modus operandi alone. For centuries, thousands of other Vikings

have raided, pillaged, and conquered villages." R404(b)

377) "I said I wanted to speak to this in camera, not in costume."

378) "I was told to come as a character witness." R404 R405 R608

379) "Sure you can voir dire the witness all you want – if you sing it with a Wagnerian Leit." R 702

380) "So, are you a character witness? You are a character." R404 R405 R608

381) "Tell me again what qualifies you as an expert?” R702

382) "The defendant claims your horns directly represent your propensity as a “bad person.” R404

383) "Yea, maybe I did have a mental defect at the time I witnessed the accident, I had just

finished the evidence final exam."

69

Lawyer at the Gates of Heaven - Art by Mark Anderson


Prior bad acts, confrontation, hearsay exception, halo,

pearly gates, sufficient guarantees of trustworthiness


70

Lawyer at the Gates of Heaven - Art by Mark Anderson

384) "Unfortunately for you, all of your prior bad acts are admissible up here, but you are

not." R404(b), R608(b)

385) "It says here, as a lawyer you once argued that the Bible lacks "sufficient guarantees

of trustworthiness." R807

386) "Let me look through this list to see if I can find an exception and let you in."

R803 & 804

387) "Of course you do have the right to confront your accusers, but it looks like they are

all currently unavailable up here." R804 (Confrontation/Crawford)

388) "Well, I do remember all my hearsay exceptions." R803 R804

389) "I knew going to Crooked Creek with Dr. Sheppard was a bad idea."

R803(3) (Hillmon & Sheppard cases)

390) "You misunderstood HRE 609. Your client gets a halo, not you. " HRE 609 (Under

Hawaii rules, no impeachment by prior conviction is allowed – except in limited

situations – so Barkai says, “The defendant wears a halo.” (Barkai-ism)

391) “You say you want to appeal to a higher authority? Sorry, we don’t have any

lawyers or judges in residence.”

392) "Well, it looks like the halo rule didn't protect you this time."

HRE 609 (Barkai-ism)

71

Admissible to Heaven? - Art by Jeff Dionise


Attorney, confrontation, St. John, St. Peter, prior

conviction, halo, Daubert


72

Admissible to Heaven? - Art by Jeff Dionise

393) "Even if you won all your Daubert hearings, you certainly must realize that citing

the Federal Rules of Evidence won’t get you in here.” R702

394) "That’s spelled A-T-T-O-R-N-E-Y? No, I don’t believe I have seen that in my book

before.”

395) "I'm afraid the Confrontation Clause only guarantees the right to cross-examine live

witnesses." (Confrontation)

396) "Well, St. John said that he heard from St. Paul that you were devout, but I'm not

sure we can accept that hearsay for the truth." R801

397) "If we ignore your prior convictions that are more than 10 years old I suppose we

can let you in." R609(b)

398) "Angel: "I just need you to relive the most difficult part of your life and you are in."

Lawyer: "You mean my evidence final exam? I'd rather you just send me to hell,

thanks."

399) "I'm sorry but the halo rule does not apply here." HRE 609 (Barkai-ism)

400) "I'll decide whether you wear a halo in here, not the courts." HRE 609 (Barkai-ism)

401) Q: "Criminal defendant?" A: "Yes."

Q: "I'll give you a halo for purposes of impeachment by prior convictions."

HRE 609 (Barkai-ism)

73

Big Arm Bouncer – Photoshopped by John Barkai


Unavailable, guns, Daubert gatekeeper, prejudice, arms,

relevancy


74

Big Arm Bouncer – Photoshopped by John Barkai

[Barkai uses this image in class to represent the R 403 function,

a bouncer just inside the R 401 wide open door of relevancy."]

402) "Wannabe Experts Beware the Daubert Gatekeeper. R702

403) “Do these guns help refresh your memory?” R612

404) "If you want me to keep watching your back, don't say anything about your good

character." R404 R405

405) "A brick may not be a wall, but it's still impressive - like me." R401

406) "Yes, I’m the judge, what are you gonna to do about it?”

407) "Yes, my name is Ken Hearsay. Is that a problem for you?”

408) "Just because the door is open doesn't mean you can come in! " Rule 401, R403

409) "I generally don’t let characters like you in, but I can make an exception based upon

your reputation in the community." R404 R405

410) "Come any closer and I’ll see that you are unavailable to testify." R804

411) "In case you missed that class in evidence, I’ll teach you about Confrontation right

now!" (Confrontation/Crawford)

412) "You may be logical, but are you legal?" (Logical relevance R401; Legal relevance

R403)

413) "Your hearsay shall not pass." R801

414)” You say the dean said she would vouch for you? I didn’t hear-her-say anything.” R801

415) “I’m going to need to check your admissibility before I let you in here.” R401

75

Bouncer in Tux - Photoshopped by John Barkai


Unavailable, dying declaration, confrontation, steroids,

admit


76

Bouncer in Tux - Photoshopped by John Barkai

416) “Got it. Make him “unavailable.” R804

417) “If you are you trying to impeach me with my prior bad acts, you might want to start

thinking about your dying declaration too.” R404 R608 R609 R803

418) “Is this a fair and accurate representation of the man you say has a reputation for

peacefulness?” R404 R901

419) “Hearsay exceptions? Haven’t heard of them. Can’t let them in.” R803 R804

420) “Mr. 1002 knows a bogus copy when he sees it. That is not an original”

R1002 (Best evidence rule)

421) “I’m not going to let you in and confuse my jury.” R403

422) “Professor Barkai. Boss of evidence.” [Note: That is not Barkai’s head on the image above.]

423) “Well, at least under Trump, we don’t have any more rules of evidence we have to follow.”

424) “Are you sure you want to confront me?” (Confrontation/Crawford)

425) “I'm Mr. Montalbo. I don’t need no federal government telling me who qualifies as an

expert.” R702

[Montalbo is Hawaii’s version of the Daubert case. Montalbo was decided a year before

Daubert. Hawaii follows Montalbo, not Daubert.]

426) “I love steroids and the FRE.”

427) “I'll teach you to substantially outweigh your probative value with unfair prejudice. R403

428) Object on hearsay grounds one more time, and I’m going to bounce you out of court. R801

429) I may look big and tough as Mr. 403, but I let most evidence in under rule 401. R401 R403

430) ”No witness sequestration order needed in this courtroom. They won’t dare try to get by

me.” R615

77

Big Arm Bouncer – Photoshopped by John Barkai Additional captions

431) “I’m going to have to kick you out under 403.” R403

432) “These guns can gatekeeper better than any judge.” R702

433) “All I see is an out-of-court statement that isn’t on my list of hearsay exceptions. You’re not

getting it in.” R803 and 804

434) “Meet my 2 friends… “Substantially” and “prejudice.” R403

435) Only the real ones are allowed in Club 403. Club 403 is where it’s at, not Club 401.

R401/403

436) “So, which one of you broke the chain of custody?” R901

437) “Just like hearsay evidence, you ain’t getting in.” R801

438) “Ain’t nobody got time for unfair prejudice.” R403

439) “What do you mean the size of my arms cannot be character evidence of the fact that I spend

4 hours a day in the gym?” R404

440) “Evidence of how much you studied for this exam is excluded under rule 403 because it

would create an undue tendency for the grader to base your grade on sympathy.” R403

441) “Don’t you dare say you don’t like SPAM.” R801 (Barkai-ism)

442) “I wish I were wearing a SPAM shirt.” [Barkai wears one the day his class starts hearsay.]

443) Q: “Would you say this is a fair and accurate picture of Prof. Lawson?”

A: “Yes”. R901

444) “How many times do I have to beat it into you? Bias is never collateral. Go home and

study.” (Bias) (Barkai-ism)

445) Mr. 409.5 seems mean, but he’s got a soft spot for guys who apologize."

(HRE 409.5 is Hawaii's apology rule. Some states make apologies inadmissible, but do not

exclude any statements admitting fault, which is different from R408’s exclusion of fact

statements)

78

Bouncer in Tux - Photoshopped by John Barkai Additional captions

446) “I heard you were trying to commit an act of wrongdoing to procure the unavailability of the

declarant. Not in my courtroom!” R804(a)

447) “Sorry, you can’t come in unless your probative value substantially outweighs the unfair

prejudice.” R403

448) “Rule 403 baby. It ain’t coming in.” R403

449) “You make it testimonial. You make it confrontational.” (Confrontation/Crawford)

450) Wit: “I was surprised you bounced me out of court. That seems unfair.”

Bouncer: “The only thing that is unfair is prejudice, not surprise.” R403

451) “I’m going to need to see some identification. Start authenticating.” R901

452) “I’m not letting hearsay in without an exception.” R803/804

453) “Removing scum is a routine practice of mine.” R406

454) “Show me the evidence that I care.”

455) “No, I won’t tell you what my client and I discussed on the phone, but I will say, it was a

privilege representing him.” R501

456) “Sorry, I can’t admit hearsay. Just doing my job. Well, I guess I could make an exception for

present sense impression this one time. Okay, and excited utterances are allowed in too. I

guess then-existing conditions are acceptable. And statements about medical diagnoses and

treatment. And recorded recollections. And business records and public records. You know

what? Everyone just come in.” R803

457) “Leading on direct? Never a good idea. Knock it off or I will.” R611

458) “Just like that earlier hearsay evidence, you ain’t getting in.” R801

459) Not only do criminals wear a halo, but they also clean up pretty nicely too." HRE 609,

prevents impeachment of criminal defendants by prior convictions. Barkai-ism

79

Flies-Bees Trial - Art by Caitlyn Thorpe Brand


Fly, bee, wall, judicial notice, buzz, business records


80

Flies-Bees Trial - Art by Caitlyn Thorpe Brand

460) “You knew I was a fly on the wall, and therefore all privileges were effectively

waived.” R501

461) Although the Mayfly's two-day life span had received judicial notice, no one

recognized the true purpose of the defendant's stall tactics until it was too late. R201

462) “Your Honor, it's true that it is not hearsay, but still it's none of the jury's bee’s

wax.” R801-807

463) “He said he intended to go to the blue light.” R803(3) (Hillmon case on intent)

464) “He said, "Waiter, there's a fly in my soup." R803(1) (Present sense impression)

465) “Sure I was excited. The can said "R-A-I-D." R803(2) (Excited utterance)

466) “Yes, they were Bzz-ness records.” R803(6)

467) “The store's reputation? It was a fly-by-night operation.” R404

468) “Yeah, the Defendant has a reputation in the community as a real pest.” R404

469) “Sustained. You can't impeach the witness with the fact that he eats rubbish, hangs

out at dumps, and associates with low-life maggots. We're flies. We all do that.”

(Impeachment)

470) "Quit buzzing around the answer! I asked a “yes or no” question.” R611

471) “I didn't think it was that kind of sting operation.”

472) “How did I know it was Frank? I'd know that buzz anywhere.” R901

473) “Why yes, I recognize the defendant, he's the one sitting right over ... over ...

Aw, nuts, all us fruit flies look alike.” R801(d)(1)(C) (Prior identification)

81

Flies-Bees Trial - Art by Caitlyn Thorpe Brand Additional captions

474) “I was just a fly on the wall.”

474) “Sensory defect? But I have 5 eyes!” (Impeachment)

476) “I couldn't help it; he was giving me the evil eyes.”

477) “Trust me, I know what they said. I'm a fly on the wall for a living.”

478) "It wasn't the defendant who killed her. When I asked the victim, "Who did this to

you?" with her last breath she said, "It was … Raid.” R804(b)(2) (Dying declaration)

479) "You’re Buzzzzted!”

480) "Of course I had personal knowledge. I was a fly on the wall." R602

481) "Sustained. That won't fly in this court." R103

482) "I wouldn't exactly say that I have a habit of being in people's soup." R406

483) "I am a cautious flyer.” R404 R406

484) "I'm telling you, it wasn't me! It could've been anyone of my 500 siblings. We all

look identical."

485) "Did the poop help refresh your memory?” R612 (Refresh memory)

486) "The perpetrator is the one sitting there - the one with the bug eyes and wings."

R801(d)(1)(C) (Prior identification)

82

Flies-Bees Trial - Art by Caitlyn Thorpe Brand Additional captions

487) "Does a buzz count as an admission?” " R801(d)(2)

488) “You mean with all your eyes and your awesome bug vision, you claim you still

didn’t see anything?”

489) Prior ID doesn’t always make sense. R801(d)(1)(C)

490) "I only use the CRUD to test the SPAM." (Barkai-ism)

491) “All fly lawyers love the KRAP acronym.” R803(6) (Barkai-ism)

492) “I’m sorry, the old shoe did not refresh my memory of the incident. It only brought

back a bad memory of the time my brother was murdered with a shoe.” R612

(Barkai-ism)

493) “Well, in my opinion it was a pile of KRAP.” R803(6) (Barkai-ism)

494) “Hey, how was I supposed to know it was "evidence?" I thought it was a free KRAP

meal.” (Barkai-ism)

495) "Wow, any witness is considered competent now huh?” R601

496) “I don't know if its bribery your Honor, but he did say,

"You can catch more flies with honey than with vinegar."

497) “Yes I was on duty that night. It was a sting operation.”

83

Out of Court - Art by Mallory Hee, Photoshopped by John Barkai


Sequester, out of court, excited utterance, unavailable,

present sense impression, essential, throw out


84

Out of Court - Art by Mallory Hee, Photoshopped by John Barkai

498) “615? What's 615?” R615 (Sequestering Witnesses)

499) “But your Honor, "competence" refers to witnesses, not to attorneys.” R601

500) “I’d like to retract my admission please”. R801(d)(2)

501) “Did you hear the one about Officer Bier and the bottle of Thunderbird wine?”

(From a classic NITA – National Institute of Trial Advocacy - fact pattern)

502) “Hang on, I'll soon be 804 unavailable.” R804(a)

503) “Your Honor, that wasn't an excited utterance... but this is!” R803(2)

504) “I guess I'm in "out-of-court declarant" now.” R801

505) “Is this a fair and accurate representation of how you were dragged away from the crime

scene?” R901

506) “Good lawyers get evidence thrown out under Rule 403;

great lawyers get opposing counsel thrown out.” R403

507) “My present sense impression is that I'm going to jail.” R803(1)

508) “Who is Crawford, and why can't I testify about his "testimonial statements?”


509) “Am I still under oath or is this an out-of-court statement?” R603 R801

510) “I'm sorry Your Honor. My vulgar outburst was nothing more than an excited utterance, and

therefore admissible as a hearsay exception.” R803(2)

511) “Hey, I thought judges were the gatekeepers!” R702

512) “There's nothing in the rule “that says I cannot use my spousal privilege against all my ex-

wives!” R501

85

Out of Court - Art by Mallory Hee, Photoshopped by John Barkai Additional captions

513) Enforcement of the witness exclusion rule. R615

514) “I tell you the glove fits.” (From the O.J. Simpson trial)

515) “But I don't understand why she got so mad. The statement was only hearsay. It was offered

to prove the truth of the matter asserted. Her dress was ugly.” R801

516) “I can't be dismissed. I'm doing research for my book deal.”

517) “But your Honor, I am an essential party.” R615

518) “Your honor, please. Just let me try one more time to lay the foundation.” R901

519) “But I saw them do it on Perry Mason.”

520) “But your Honor, I thought the lawyer-client privilege protected my possession of the

murder weapon.” R501

521) “Your Honor, you may only throw out hearsay, and I am not hearsay.” R801

522) A HARROWing day in court for the attorney. R801 R901 R401 R403 F1000

523) “What? Teaching Evidence is a crime? It may be immoral and obscene, but it is no crime.”

524) “Members of the jury, do not believe that I've been charged with contempt for excessively

boring the judge.”

525) “But your Honor, I object to you!” R103

526) “When in doubt, object!” R103

527) “But your honor, I have a right to confront my accusers.” (Confrontation)

86

Out of Court - Art by Mallory Hee, Photoshopped by John Barkai Additional captions

528) “The next time you say adverse privilege about my wife, you'll be wearing that robe around

your head! R501

529) “And do you also recognize THIS grain of sand?”

530) “They shouldn't call it the “mercy rule.” R404

531) By requesting the court exclude the witness in the middle of his testimony, defense counsel

created a difficult hearsay problem for the plaintiff. R801

532) “I am a competent juror. I hear best when I am asleep.” R601

(State of Hawaii v. Yamada – a sleeping juror issue)

533) In the L.A. County Courthouse: "What? Memories refreshed in past life regression therapy

are inadmissible?" R612

534) I'm innocent I tell you. It was my college roommate, I swear." (Ted Bundy's comment as he

was taken away. Our former dean was Bundy’s college roommate.)

535) “Your Honor, it's true. Believe me. SPAM really is made of CRUD. I learned it in Evidence

class. Professor Barkai can't be wrong.” R801

536) “CRUD, I wonder if they serve SPAM in prison.” R801 (Barkai-ism)

537) “And another thing, I don't care if the Defendant has a halo on, he still did it with that

CRUDy can of SPAM.”

(A Barkai-ism. In Hawaii, the criminal defendant wears a halo – meaning the defendant

cannot be impeached under HRE 609 by prior convictions.)

538) “But your Honor, nobody told me CRUD wasn't a legitimate objection.” (Barkai-ism)

539) “Judge, you should've allowed that cCRUDy SPAM in!” (Barkai-ism)

540) “B'bbbut ... He said he liked SPAM.” (Barkai-ism)

87

Dogs Roxy & Lancer Talking - Photoshopped by John Barkai


Habit, immunity, authentication, chain, treat, Lassie


88

Dogs Roxy & Lancer Talking - Photoshopped by John Barkai

541) “Authenticate yourself.” R901

542) Q: “What happened to you?”

A: “I broke my chain of custody.” R901

543) “Roxy, I can't tell you where I buried the bone. There’s no dog-dog privilege.” PR505

544) Daubert meets Montalbo.

(State v. Montalbo, 73 Haw. 130, 828 P.2d 1274(1992) is the Hawaii version of the

Daubert case, which was decided a year before Daubert)

545) Both dogs have sufficient personal knowledge of the matter at hand. They know who let the

dogs out. R602

546) “If they put a leash on me will I be considered hostile? Will they be able to ask me leading

questions on direct?” R611

547) D1: “Do you think they know we buried the evidence?”

D2: “Ah, whatever, we’re the only witnesses, and they’ll probably say that dogs are not

competent to testify.” R601

548) “This recorded recollection smells fresh to me.” R803(5)

549) “Hey Roxy, do you think wagging your tail counts as sufficient paw-thentication?” R901

550) “You’re right, he did have a reputation of being a “good boy.” R404 R608

551) D1:” Treat? Did somebody say treat?”

D2: “I didn’t hear that. Must be hearsay.” R801

552) “I heard this trial was going to be a “rough” one.”

553) “I know it’s hearsay, but Lassie told me little Jimmy is in the well”. R801

89

Nosey Talks with Roxy – Art by Mallory Hee


Habit, bones, bark, expert, circumstantial


90

Nosey Talks with Roxy – Art by Mallory Hee

554) “Just don't make a habit out of it.” R406

555) “You know, privilege doesn't matter if I choose to testify against you for pooping on the

carpet.” R501

556) “Being an expert witness on bones has proven to really pay the big bucks.” R702

557) D1: “The evidence course was really ruff.”

D2: “Who did you have?”

D1: “Bark, Bark, Barkai.”

558) D1: “Did you know that when I bark outside of court it’s not considered hearsay under

R801?”

D2: “Yep. It’s because you are a dog.”

559) “I have plenty of experience with bones.

Do you think the judge will qualify me as an orthopedic expert?” R702

560)” I still don’t understand why Professor Barkai says no PET evidence.

Sounds like discrimination to me.” R401 (Barkai-ism)

561) “The evidence was circumstantial, and his couch was hideous anyway.” R401

562) D1: “If it’s admissible, I’ll sniff it out.”

D2: “With your nose? Please! It will just waste our time.”

563) D1: “Did you see the car run that red light?”

D2: “Yeah, I think so, but you know dogs are colorblind. Can they impeach me on that?”

(Impeachment)

91

Nosey Meets Another Nosey - Art by Mallory Hee


Copy, fetch, smell, Upjohn


92

Nosey Meets Another Nosey - Art by Mallory Hee

564) “Do clones count as reliable copies?” R1003 [Best evidence rule]

565) “I'm offended the judge thinks fetching the paper every day is "unreflective behavior." R406

566) “Yes, the fact that you always pee on every fire hydrant on Dole Street every time you go

out in the morning can be used against you! No, no one has to see you do it. It's what

humans call habit.” R406

567) “Yo brah! Can’t believe you switched dawgs. It wasn’t me! SODDIT"

(Some Other DOG Did It compared to Some Other Dude Did IT for humans)

568) D1: “Something smells like Upjohn.”

D2: “What’s Up John?”

D1: “Nothing much. How about you?” R501

569) D1: “Who’s the best professor?”

D2: “BARK-ai of course!”

570) “Did he say catch-all or fetch-all exception?” R807

571) “No Lancer, being a “good boy” isn’t good enough to admit it as character evidence.

It needs to be more specific, at least “law-abiding.” R404 R608

572) “Even though it’s a habit of mine to fetch tennis balls, they can’t expect me to fetch the

newspaper too.” R406

573) “Do you mean that the hearsay rule applies only to statements made by humans?

That’s unfair!” R801

574) “That recorded recollection smells fresh to me!” R803(5)

575) D1: “Watch me point at this guy and get him arrested.”

D2: “Stop. You’re going to get him in trouble. You know what dogs do isn’t hearsay.”

R801(a)(2)

576) “Still waiting on that dog-dog privilege I see.”

93

Dog Trial – Art by Mallory Hee


Fleas, dog, cat, bite, dig


94

Dog Trial – Art by Mallory Hee

577) “Those aren't distinctive characteristics. All dogs have fleas." R901(b)(4) (Authentication)

578) “Just because he peed on it, doesn't mean he owns it."

579) “Sure, I know of the cat's reputation. He's a bad cat." R404 R405

580) “I told him to go and find some other tree. This one was taken."

581) “Yeah, he does have a reputation for truthfulness. He lies like a dog." R608

582) “She told me she was a purebred."

583) “Of course I'm biased! It was a cat for god’s sake. HRE 609.1

(No FRE on bias, but common law applies)

584) “Really, believe me. I didn't dig up the body because I buried it. I was looking for my bone."

585) “Yes, I ate the kid's homework, but you didn't hear it from me."

586) “I admit I did it. It's a dog eat dog world out there!”

587) “I don't believe in dog, but I will tell the truth."

(Dyslexic witness taking the oath.) R603 R610

588) “Of course I bit him. He called me a cat lover."

589) “That was good counsel. You must have taken evidence from Prof. Bark-E."

590) “I told you I can't remember - show me the old shoe already!” R612 (Refreshing

recollection) (Barkai-ism)

95

Judge Roxy & Witness Lancer – Photoshopped by John Barkai


Bad boy, good boy, Dogbert, bark, bone


96

Judge Roxy & Witness Lancer – Photoshopped by John Barkai

591) “Rather than have you take an oath, I’ll just ask you, “Are you a good boy?” R603

592) “Counselor, you must adhere to the Dogbert Factors for experts because this is a

federal courtroom." R702

593) “Yes, Leah’s homework looked like bone-a-fide evidence." R406

594) “Is there a dog-dog privilege?” R501

595) “I planned to be unavailable, but my owner named me “Say” so I got confused when

I thought he called me from the courthouse steps – Here Say."R801

596) “Witness, you said the defendant is a bad boy, but character evidence is

inadmissible to show conformity therewith."R404 R405

597) “As I recall, the lawyer said, “Objection Cat-lateral,” and all the jurors ran out of the

courtroom barking.”

598) “Honestly, I am tired of listening to your expert opinions on dog bite cases.

Isn’t there anyone else in the field?” R702

599) “Ladies and gentlemen of the jury, you’re being asked to consider whether the

defendant is a “good boy.” R404 R405

600) “The defendant sat down when he was told to. Therefore he is a good boy. Case

dismissed!" R404 R405

601) “Overruled. The witness may say anything he wants to. Don’t you know dogs are

not subject to the hearsay rules?” R801

97

Judge and Witness Dogs – Art by Mallory Hee


Present sense impression, dead, cat, gone, paw


98

Judge and Witness Dogs – Art by Mallory Hee

602) The judge ruled that Nosey’ s testimony was admissible as a present scent impression.

R803(1)

603) “You were forced to wear a leash? Objection! Leading the witness!” R103 R611

604) “Your Honor, peeing on the fire hydrant is not a habit. I only do it about 50% of the time."

R406

605) "I saw the defendant routinely bury stolen bones in that corner of the property." R406

606) "And then he told me, “I’d settle for a bone.” R408, R801(d)(2)

607) “I don’t see how the cat ate your evidence is relevant." R401

608) “Your Honor, I would like to offer evidence that the defendant is indeed a “good boy.” R404

609) “Let the record reflect that will you be taking judicial notice that on that day,

Spike was indeed a “good boy.” R201

610) “Let’s paws for a recess so Coco can tell us where she buried the evidence."

611) “Your Honor look at what a good boy he is! How can you question his character?” R404

612) “No, what the declarant said when he rolled over and played dead was not a dying

declaration." R804(b)(2)

613) “The defendant sat down and rolled over when he was told.

Therefore, I find that he is in fact a “good boy.” Case dismissed." R404

614) “So, defendant, you say they left the bacon unattended and you couldn’t help yourself?”

Who am I to judge?”

615) Judge: “Do you know what hearsay is?”

Witness: “Yes, I hear what people say all the time.” R801

616) “It seems like all your testimony has been an excited utterance." R803(2)

99

Lancer on the Witness Stand – Photoshopped by John Barkai


Expert, bark, bone


100

Lancer on the Witness Stand - Photoshopped by John Barkai

617) “Well, I received my Doctor of Veterinary Sciences degree from the Rin Tin School of

Veterinary Sciences and did a residency at the Lassie Clinic Massachusetts. Since then I

been sniffing around and writing health articles for Milk-Bone." R 702 (Qualifying an

expert witness)

618) “I'd always thought that lawyers worked like dogs, but who knew this one actually spoke

dog?”

619) “Biased? So what if I promised him extra bones?” (Bias)

620) “He could not have seen me on the "roof."

621) “Of course it's biased testimony. He's man's best friend." (Bias)

622) “I know that all witnesses are competent, but this is ridiculous." R601

623) “Judge, the witness is clearly hostile. He bit my mailman yesterday." R611

624) “Man's best friend? I think not." (Bias - impeachment)

625) “What do you mean it's not hearsay? That's the same bark he made that day." R801

626) “That's impossible. That can't be a recorded recollection. Dogs can't write.” R803(5)

627) “Objection. Here boy! Oh, I mean hearsay." R801

628) Justice Scalia finally succeeds in restoring the deeply-rooted tradition "dog testimony as

hearsay" rule." R801

629) “Isn't that Hear-Bark?” R801

101

Dog on the Witness Stand – Art by Mallory Hee

Art by Mallory Hee


Daubert, refresh memory, impeachment, bone, bias, paw,

privilege, cross


102

Dog on the Witness Stand – Art by Mallory Hee

630) “Daubert has turned this place into a zoo." R702

631) “So you're sure he'll just roll over on cross, right?” R611

632) “Are you sure we can use a can of ALPO to refresh his memory?” R612

633) “Object on bias. I had him neutered! (bias)

634) “Ruff, Ruff, Ruff.” “And he's supposed to be an expert?” R702

635) “Ask him leading questions. He's used to being on a leash. R611

636) “The rules say you can't impeach him, but everyone knows he'll lie like a dog."

(Impeachment)

637) “Should we try throwing him a bone? How about a leading question?” R611

638) “He's biased. On cross, ask him if he ever ate my homework." (Bias)

639) “Sure he is my best friend, but couldn't you have thought up a better character witness for

me?” R404 R405

640) “Don't worry, we can impeach him for bias. He is man's best friend." (Bias)

641) “She's got it in for me. I forgot to feed her last night." (Bias)

642) “I paw-mise to tell the truth, the whole truth, and nothing but the truth." R603

643) Is there a veterinarian-client privilege I can assert?” R501

103

Dog in Dog Bed – Art by Mark Anderson


All Barkai-isms: left shoe, SPAM, KRAP


104

Dog in Dog Bed – Art by Mark Anderson

644) “Oh now I remember that left shoe!” R612 (Refreshing recollection) (Barkai-ism)

645) “Master’s left shoe is so refreshing.” R612 (Refreshing recollection) (Barkai-ism)

646) “Even though I don't qualify as a declarant, I still have SPAM on my mind.”

(Testimony about tracker dog activities is not hearsay) R801 (Barkai-ism)

647) “Well you know, my memory could be refreshed perhaps if you'd let me chew on that there

bone for a minute or perhaps better yet, on Professor Barkai's shoe."

R612 (Refreshing recollection) (Barkai-ism)

648) “SPAM? Who said SPAM?” (Hearsay risks) (Barkai-ism)

649) “And that’s when I heard him say, “KRAP, I forgot to turn in my daily report, I’m going

back to the office.” R803(6) (Business recorded) (Barkai-ism)

650) “But can we also use my left paw?” (Left paw; left shoe) (Barkai-ism)

105

Dogs on Sidewalk – Art by Mark Anderson


All captions are based upon the Barkai-ism of PET

evidence.


106

Dogs on Sidewalk – Art by Mark Anderson

P.E.T. evidence is my own idea of a relevancy concept. Evidence about

some other Person Event or Time is irrelevant and therefore inadmissible

unless there is some other factor or rule that makes it relevant, such as

R404(b), Rule 609, evidence that “opens the door.”

All Barkai-isms

651) Do you think they will consider us to be PET evidence? R401

652) D1: What makes you think you are so special and relevant?’

D2: Well, I finally got past that giant “no PETS allowed” sign. R401

653) “No P.E.T. evidence! Go home! R401

654) “No PET evidence? But Barkai said I am the star witness.” R401

655) D1: Do you smell that? Smells like Professor Barkai is cooking some SPAM curry.

D2: Smells like KRAP to me. R801/804(b)(3) R803(6)

656) ”Do you think emotional support PET evidence is admissible?” R401

657) “I'm sorry, but PET evidence simply is not allowed without specific relevance." R401

658) “Do you think we count as PET evidence according to Professor Barkai?” R401

659) “Is it PET evidence if I leave fur all over her clothes?” R401

107

Dog-Gone Witness – Art by Mark Anderson


Pound, smell, play dead, here boy, drooling, bone,

mailman, let the dogs out


108

Dog-Gone Witness – Art by Mark Anderson

660) “Isn’t it true that you have been in and out of the pound since you were a puppy?

Objection." Rule 609.

661) “I’ll allow this expert’s testimony because it would be helpful to the jury’s understanding of

the process of burying bones." R702

662) “You honor, at this time I would like to offer the Doctor as an expert in chasing mailmen.”

R702

663) “Answer my question. Do you smell the perpetrator in this courtroom?”

664) “Are you the one “who let the dogs out?"

665) “I would sustain your objection that this is all hearsay with no exception, but frankly I’m a

sight hound."

666) “I was trying to play dead for two dog years, and every time I believed I was dying."

R804(2)

667) “I present my expert on evidence Professor Bark E." R702

668) “Objection. Here boy! Oh, I mean hearsay." R801

669) Every dog has its day in court."

670) “The practice of law has gone to the dogs."

671) “Your honor, the prosecution is drooling on the witness."

672)“Objection. Bias. He has a bone to pick with the defendant!” (Bias)

673) Q:”You were in the alley next to the cat when he died, weren't you?”

Q:”And you had hair in your teeth, didn't you?”

674) Dog day afternoon

675) A dog-gone trial.

676) “Every dog is entitled to his day in court, right?”

677) Every dog must have his day.

678) “Did you tell the victim: "It's a dog eat dog world?"

679) “Dog gone it, Your Honor. I can't remember if I bit the postman on the leg or butt.”

109

Cow in jury box - Art by Mallery Hee & John Barkai


Cow, milk, bull, moo, steer, udder, herd


110

Cow in Jury Box - Art by Mallory Hee & John Barkai

680) “To hell with relevancy! Ask him what he ate at McDonalds!” R401

681) “But your honor! Bias is never COW-lateral. It is always MOO-terial.”

(Bias - impeachment - collateral)

682) “He is not the milkman! I know the milkman, and that isn't him.”

683) “Is it true you work for the USDA?”

684) “How could any of you believe that he's a better expert on the digestive system than me? He

only has one stomach.” R702

685) “Impeach his reputation. He's even more of a bullshit than I am!” R607, R608

686) “A juror is irate over missing yet another feeding due to a four-hour cross examination of

the witness.” R611

687) “He's lying. He eats steak 3 times a week!" (Impeachment)

688) “I object your honor! He's milking the jury." R103

689) “You call that bullshit? I'll show you some real bullshit if you put me on the stand."

690) “I thought you said he should be judged by a jury of his steers."

691) “I've got your "excited udders" right here, pal!” R803(2) (This is a Brooklyn Bovine).

692) “I beg to differ, that man is not an expert at milking cows!” R702

693) “Udderly" disgusted by the prosecutor's use of leading questions, Juror #7 decided ex-parte

to MOO-ve to strike the testimony." R611 R103

111

Cow in Witness Box - Art by Mallory Hee, photoshopped by John Barkai


Cow, milk, bull, moo, , udder, herd


112

Cow in Witness Box - Art by Mallory Hee, photoshopped by John Barkai

694) “The witness seemed determined to prove he was no "cow-ard" by speaking up at trial."

695) Defense counsel's attempt to "steer" the jury in his direction was apparently working."

696) “I "herd" him the first time."

697) “Can we moo-ve on? The witness is udderly cow-lateral." (collateral)

698) “Objection. Counsel is bullying the witness." R611

699) Bias is never cow-lateral." (bias)

700) Unfortunately, Bessie's "excited udderance" came too late to save Farmer Brown." R803(2)

701) “Objection Narrative! He’ll talk till the cows come home." R611

702) An excited "udderance" at Oprah Winfrey's Mad Cow Trial." R803(2)

703) “Now who is getting milked?”

704) Even animals hate lawyers."

705) “Now that is an excited udderance!” R803(2)

706) “You're really milking that witness for all he's worth."

113

Bedtime Twins - Art by Mike Shapiro, photoshopped by John Barkai


Privilege, bedtime, sleep, circumstantial evidence, best

evidence, reputation, rules of evidence, character

evidence, fair and accurate representation


114

Bedtime Twins - Art by Mike Shapiro, photoshopped by John Barkai

707) “And so because mommy refused to exercise her spousal privilege, daddy has to go to jail."

R501 (Spousal privilege)

708) “And that's how the case of the Three Bears v. Goldilocks was determined on purely

circumstantial evidence." R401

709) “Would you accept a summary of this story?” R1006 (Best Evidence)

710) “Your bedtime story tonight is the Federal Rules of Evidence.

That should put you to sleep quickly."

711) “It is beyond a reasonable doubt that it is past your bedtime." (Burdens)

712) “Dad, our opinion, and your reputation in this household, is that you don't tell good stories."

R404, R405

713) “Mommy is not here tonight because daddy didn't know about the spousal privilege for

adverse testimony." R501

714) “Tonight, we will learn about the exceptions to hearsay. Don't worry, this will put you to

sleep right away." R803, R804

715) “Dad, Jasmin said Santa doesn't exist.” “Girls, that's just hearsay.” R801

716) "Girls, you're growing up quickly. It's time that you know how the Hawaii and Federal Rules

of Evidence differ."

717) "How was my day? I ate. The rest is privileged." R501

718) “Girls, was the picture you drew of me at school today a fair and accurate representation?”

R901

719) “Tonight I'll read you the classic tale of beauty and the man with the character trait which as

inadmissible under Rule 404(a)

720) "So you're having some trouble falling asleep? Let's read some pages from the Federal Rules

of Evidence together."

721) "Let's not tell mom what we did. We'll consider that privilege." R501

722) “And the moral of the story is, "Bias is never collateral!" (Bias) (Barkai-ism)

115

Bedtime Son - Art by Mike Shapiro


Privilege, authentication, hearsay, Rule 407, R411


116

Bedtime Son - Art by Mike Shapiro

723) “I'm sorry son. marital privilege trumps attorney-client privilege any day." R501 724) Son: “I just had a dream within a dream Dad." Dad: “Yesterday in court I just had a nightmare. It was hearsay within hearsay." R805 725) “Son, let me tell you a little about the OTP." (Offer to prove) R401 726) “It's time for bed. Let's read the Federal Rules of Evidence." 727) “Objection daddy! This picture book on dinosaurs is not a fair and accurate representation of

what T. Rex looked like when dinosaurs roamed the earth. You need to authenticate these books before you buy them for me." R901

728) “Don't worry son, when you have to testify about this later in Hawaii, it will be by television." HRE 616 Televised testimony of child. 729) “Sorry Johnny, all of Dr. Seuss's books are now privileged. No story tonight." R501 730) “You see son, you have to marry the woman before you do something bad in order to get

spousal immunity at common law." R501 731) “You were the only one in the kitchen, and all the cookies were gone. The law says that

these basic facts create a Morgan-McCormick presumption that you ate the cookies. And by "law," I mean your mother." R301

732) “Johnny, I'd like to tell you all about my day, but everyone Daddy talks to at work is part of

a privileged relationship." R501 (Lawyer-client privilege) 733) “So you see Jimmy, Rule 411 governs liability insurance, not rule 407. It's okay. It took me

a while to grasp that too." R407, R411 734) “Realizing that the child believed everything he said, Tom worried that there might be a

competency issue with his star witness." R601

735) Dad: "Your mother told me…” Son: “I object! Hearsay!” Dad: “You may to strike it, but you're still grounded." 736) "Remember son, every statement you make to me is confidential and protected by the

lawyer-client privilege. Your mom will never know." R501 737) Future Trial Lawyer: "Dad, I don't want you to read me the Federal Rules of Evidence as my

bedtime story. They are too exciting. I will be up all night." 738) "Time for your bedtime story. A long time ago, there was a terrifying thing called hearsay

and all its exceptions." R801-807

117

Crocodile on the Stand - Art by Mallory Hee, photoshopped by John Barkai


Snapped, ate, excited utterance, dying declaration, tears,

self-defense, gator, SODDIT


118


739) “Of course it was a dying declaration. I ate him, didn't I?” R804(b)(2)

740) “I can't help it if everything people say when I am around is an excited utterance.”

R803(2)

741) “Victor’s reputation? Horrible. He’s so…so…warm-blooded.” R404

742) “Isn't it true that you were green with envy?”

743) “I went to Crooked Creek with Hillmon to meet Angelo." R803(3)

744) “No, I'm not a vegetarian."

745) “No I wasn't biased against him. As a matter of fact, he tasted delicious." (bias)

746) “All right! All right! I admit it! I confess! Those weren't real tears!"

747) “I only ate 3 of those law students. What's the big deal?”

748) “Because you didn't ask permission to approach me, I'm going to snap."

749) “That's not what I meant when I said I could use a hand."

750) “No. I have never lived near water, and I have never eaten anyone."

751) “It was self-defense. The lady in the boat said she would just kill for an

alligator bag.”

752) “I tell you I'm innocent!! I didn't mean to eat the "State Fish."

753) Wit: “We were just looking to have a good time at the catfish hole when that man

over there, the defendant, started shooting at us.”

Atty: “And then what happened next?”

Wit: “Alfred snapped!”

754) The new prosecutor faces her first witness in her first trial.

119


755) “Yes, I was so employed and on duty in Okefenokee Swamp, Southern Georgia, in

this undercover uniform as a park ranger.”

756) “I claim immunity from prosecution under the Endangered Species Act of 1973.

Besides, it was only a small dog.”

757) “I didn't mean to do it! I just snapped when he told me my mother was a pair of

cheap shoes at the mall.”

758) “Your bite is worse than your bark, isn't it Mr. Alli?”

759) “Object overruled. Leading questions are allowed when examining a reptile

witness.” R611 (Hostile witness)

760) “Why yes I an expert in the field of digestion?” R702

761) “Did you sell your baby brother to the ACME Purse and Shoe Company?”

762) “Under Rule 401 relevancy analysis, I would like to show how the teeth of this

alligator are relevant to the lack of "bytes" found on the computer's hard drive." R401

763) “Isn't it true that you are the exception that swallowed the rule?”

764) Q: “Isn't it true that you ate Mrs. Smith so that she would be unavailable for trial?”

A: “No, that wasn’t my intent. I was just hungry.” R804(b)(6) (Giles v. California)

(Forfeiture, Confrontation)

765) “I swear, the poodle had a horrible reputation for peacefulness.” R404

766) Your Honor, may I treat this witness as a hostile witness?” R611

767) “How about I take a bite out of you to refresh my memory.” R612

120


768) “I’d like to begin my croc-examination by asking, “Isn’t it true you’ve been

practicing as a liti-GATOR without a license?” R611

769) “SODDIT. I’m an alligator not a crocodile! Look at my nose!” [SODDIT – an

expression from my criminal practice in Detroit – Some Other Dude Did It.]

770) “Yes, eating the victim does count as assertive nonverbal conduct and can be used

against you.” R801

771) “Perhaps if you stick your head into my mouth that will refresh my memory.” R612

772) Al’s big mouth just opened the door to otherwise inadmissible character evidence.

R404

773) “If you showed me a picture of the left leg, that might refresh my memory.” R612

(Refreshing memory) (Barkai-ism)

774) A defendant with a big mouth should keep it shut or else they might open the door

on cross.” (Open the door) (Barkai-ism)

775) “No, you cannot have your left shoe back." R612 (Refreshing memory) (Barkai-ism)

776) “I don't remember, but if I could smell your shoe, it might refresh my memory."


121

Appearing Before the Judge - Art by Mark Anderson


Open the door, objection, taking the stand, Snapchats,

reliable authority, judicial notice


122

Appearing Before the Judge - Art by Mark Anderson

777) “So Your Honor, you’re saying we opened up the door when I was talking about how

truthful my client was? Well, I would request that Your Honor close the door at this time."

R608

778) “No counsel, Snapchats do not qualify as photographic evidence because they live in the

cloud and disappear." R901

779) “What you mean you can’t remember which objection? There are only a million of them to

choose from." R103

780) “Counselor, I highly doubt that “Bone Fractures for Dummies” is a reliable authority in the

field of medicine." R803(18)

781) “That single-ply OTP is a load of crap." (OTP – stands for Offer To Prove)

782) “Mr. Trump, the fact that you once ate a fortune cookie may not be offered to prove your

expertise in foreign policy." R702

783) “Your objection is overruled, but don’t ask me why.” R103

784) “No counselor, the court will not take judicial notice that men are from Mars and women are

from Venus.” R201

785) “I can’t help but take notice that it was a bad mistake for you to take the stand." R201

786) “Give me a second to go on to Facebook. I’m a federal judge. I can comment on the

evidence when I want to." (Judges in many states are not allowed to comment on the

evidence, see Haw. R. Evid. 1102)

787) “Thank you. If you hadn’t opened your big mouth we never would’ve had to play this

character game.” R404 (Barkai-ism)

788) “Sir, in the future, please refrain from keeping notes to refresh your client’s memory in your

stinky shoe." R612 (Refreshing memory) (Barkai-ism)

789) Lawyer: “Can I use my shoe to refresh the witness’s memory?”

Judge: “Ab-shoe-lutely, why knot?” R612 (Refreshing memory) (Barkai-ism)

790) “The defendant’s business records were not KRAP." R803(6) (Barkai-ism)

123

Office Conference – Woman Lawyer - Art by Mark Anderson


Privilege, bias, prior statement, learned treatise, hearsay,

KRAP


124

Office Conference – Woman Lawyer - Art by Mark Anderson

791) “Well sir, it looks like that drunken marriage in Vegas was good for something. Everything

you said to her that week before the divorce will remain confidential at trial." R501 (Spousal

privilege)

792) “I asked for a memo on why he’s guilty. You can’t just hand me paper that just says,

“Because he is.”

793) “You do realize that tweeting our conversations on Twitter waives your attorney-client

privilege?” R501 (Attorney-client privilege)

794) “We’re going to have to talk about your prior inconsistent statement." R613

795) “I’m sorry, but I don’t think “Game of Thrones” would count as a learned treatise."

R803(18)

796) “I assure you that everything you say to me will be held in strict confidence, if you just

promise to pay my bill." R501 (Attorney-client privilege)

797) “How “innocent” can you afford to be?” "

798) “Your retainer check didn’t actually bounce, but the bank excluded it as hearsay." R801

799) “Of course, even you would be considered a competent witness." R601

800) “Shh! Don't say a word. There is no attorney-client privilege here. The office is bugged, and

we’re in a strict common law jurisdiction." R501 (Attorney-client privilege)

801) “One last question, when you took your evidence exam in law school, did you get the “bias

is never collateral” question right?” (Bias - impeachment) (Barkai-ism)

802) “Business record? That’s KRAP." R803(6) (Barkai-ism)

125

Office Conference – Male Lawyer - Art by Mark Anderson


Privilege, hearsay, litigation


126

Office Conference – Male Lawyer - Art by Mark Anderson

803) “I’d like my boldness to stay between you and me." R501 (Attorney-client privilege)

804) “No Mr. Trump, you can’t commit a crime with your father and then claim the attorney-

client privilege just because a lawyer was in the room." R501 (Lawyer-client privilege)

805) “Yes, it might sound strange, but even if there are bugs in here, it is still confidential." R501

(Privilege – The common law eavesdropper exception no longer applies)

806) “So, you’re sure you’re not going to tell my wife I was at the Raiders game?” R501

807) Atty: "Are you ready to be cross-examined?"

Client: "Nothing to it. I’m a married man." R611

808) “So, the hearsay around the office is, “You're fired!" R801

809) “Paying my fee will also help as evidence for our insanity defense."

810) “So, he was all like, “See you later alligator.” And I was like, "Actually I’m just a litigator."

811) “I'm only a marriage counselor, so nothing is privileged. Everything you tell me, I will tell

your wife." R501

812) “I have the privilege of telling you I browsed the web too much during my evidence class."

R501

813) “No, a complementary membership at the Outrigger Canoe Club does not fall within the

meaning of "attorney-client privilege." R501

814) “It's been a real privilege." R501

815) “If you forget anything, don't worry, I will give you my left shoe."


127

Jail Conference - Art by Mark Anderson


Privilege (attorney & spousal), character, impeachment


128

Jail Conference - Art by Mark Anderson

816) “Since you have more trial experience than any of my law school professors,

do you mind if I ask you a few evidence questions?”

817) “Sorry sir. You may have seen it in an old Western movie, but marrying Linda isn’t

going to stop her from testifying against you in your robbery trial."

R501 (Adverse spousal privilege) (Trammell)

818) “Yeah, so I will have to go to the police station to pick up that blood-stained machete

you sent me." R501 (Lawyer-client privilege) (Physical items do not become privileged

if given to a lawyer)

819) “I'm sorry Professor Barkai but I think they've got you under rule 404. Every year

someone suffers severe mental breakdown during your evidence final exam." R404

(Character)

820) “Because there is a crime-fraud exception to the privilege rule, you shouldn’t ask me

about what "your friend" might do if he wanted to "make someone disappear." R501

(Lawyer-client privilege)

821) “We’ve got privilege, yes we do! We've got privilege, how about you?” R501

822) “Looking at your personal record, I don't think you want to open up your life story by

calling a character witness at trial." R404 (Character)

823) “I wish you would have told me before I married her that the privilege doesn't cover

things I told her before the marriage." R501(Marital privilege)

824) “No, when I say the other side may try to impeach you, it does not mean they think you

are the president.” (Impeachment)

825) “I’m sorry Lefty, but storing your drugs and guns in my office won't make them

privileged." R501 (Attorney-client privilege does not apply to physical items)

826) “Here’s one for you. What's the difference between a lawyer and his client? One might

be stupid, but the other one might go to prison.”

129

Lawyer in Jail Cell with Client, photoshopped by John Barkai


Privilege (attorney & spousal), character, impeachment


130

Jail Conference - Art by Mark Anderson, photoshopped by John Barkai

827) “Sorry sir. You may have seen it in an old Western movie, but marrying Linda isn’t going to

stop her from testifying against you in your robbery trial."

R501 (Adverse spousal privilege) (Trammell)

828) “Yeah, so I will have to go to the police station to pick up that blood-stained machete you

sent me." R501 (Lawyer-client privilege) (Physical items do not become privileged if given

to a lawyer)

829) “I'm sorry Professor Barkai but I think they've got you under rule 404. Every year someone

suffers severe mental breakdown during your evidence final exam." R404 (Character)

830) “Because there is a crime-fraud exception to the privilege rule, you shouldn’t ask me about

what "your friend" might do if he wanted to "make someone disappear." R501 (Lawyer-

client privilege)

831) “We’ve got privilege, yes we do! We've got privilege, how about you?” R501

832) “Looking at your personal record, I don't think you want to open up your life story by

calling a character witness at trial." R404 (Character)

833) “I wish you would have told me before I married her that the privilege doesn't cover things I

told her before the marriage." R501(Marital privilege)

834) “No, when I say the other side may try to impeach you, it does not mean they think you are

the president.” (Impeachment)

835) “I’m sorry Lefty, but storing your drugs and guns in my office won't make them privileged."

R501 (Attorney-client privilege does not apply to physical items)

836) “Here’s one for you. What's the difference between a lawyer and his client? One might be

stupid, but the other one might go to prison.”

131

Shrink with Mime - Art by Mark Anderson, photoshopped by John Barkai


Silence, mime, privilege, crazy


132

Shrink with Mime - Art by Mark Anderson, photoshopped by John Barkai

837) “So, they took my silence as an admission." R801(d)(2)(b)

(Admission – statement by party opponent)

838) “I had this nightmare. I had to remember all the rules of evidence for my upcoming case.

Then I woke up and realized my case was in small claims court and the rules of evidence

don’t apply there." Rule 1101

839) “So apparently there's something called an adoptive admission by silence." R801

840) “Oh great. You’re a Doctor of History turned therapist? Does that mean this is protected by

privilege or not?” R501

841) "Really? There is no mime exception to the hearsay rule?” " R801 (Nonverbal conduct as

hearsay)

842) “And then the judge said, “You can’t use a statement of memory or belief to prove the fact

remembered or believed.” What was that about?” R803(3)

133

Woman Shrink - Art by Mark Anderson


Hearsay, privilege, memory, character, unavailable


134

Woman Shrink - Art by Mark Anderson

843) “The first thing my father told me was hearsay." R801

844) “Please tell me your present sense impression." R803(1)

845) “I'm here, but I have no memory. Am I "unavailable" as a witness?” R804

846) “Exactly how confidential is this session?”

R501, Jaffee v. Redmond, Haw. R. Evid. 504.1 Psychologist-client privilege

847) “Ever since moving to the U.S. Attorneys’ office, I feel like I've busted through the glass box of

Haw. R. Evid. 609."

R609 (comparative differences between Federal and Hawaii Rules – a criminal defendant’s prior

convictions not admissible for impeachment in Hawaii. Kansas and Missouri have similar rules.)

848) "And then the professor said, “Not only are there over 30 exceptions to the hearsay rule, but

Crawford changed decades of prior decisions.” It was horrifying!" R 801, 803, 804, 807


849) "Is it a character issue when my M.O. has always been this way?" R404(b)

850) "I just didn't know what to expect when Prof. Barkai first took his shirt off - until I saw SPAM

written on his T-shirt."

851) "Do I have a privilege?" R501

852) "It's just really hard living in Hawaii. I have a panic attack every time I see the word “SPAM."

R801-807 (Another Barkai-ism)

853) "Counselor, do you think it is possible that your anxiety comes from the fact that you didn't study

enough for your evidence final exam?" "Objection. That's a leading question. Plus it calls for

speculation, and it is harassing and embarrassing too!" R611

135

Da Judge - Photoshopped and Cartoonized by John Barkai


Vegas, evidence grade, judicial notice, best evidence


136

Da Judge - Photoshopped and Cartoonized by John Barkai

854) “Overruled. “What happens in Vegas, stays in Vegas” is not a rule of evidence.”

855) "You aren't an expert unless I say so." R702

856) "I don't care how calm he appeared, “#@$&!!!” is an excited utterance." R803(2)

857) “Pouring cement all over my courtroom is not what I meant by a laying foundation. R901

858) “Sir, a shaka sign does not really qualify as affirming your duty to testify truthfully.” R603

[The shaka sign is nonverbal Hawaiian communication usually taken to express a friendly

message such as, “Hang loose,” “Right on,” “Thank you,” “Things are great,” and “Take it

easy.”]

859) “You want judicial notice that anything on Wikipedia is not subject to reasonable dispute? Nope!”

R201

860) “You say opposing counsel’s objection should be overruled because he got a C in evidence?” R103

861) “Counselor, if you can’t show me that your expert’s testimony is based on scientifically relied upon

evidence, your “expert witness” will be “Fryed.” R702

862) "If you don't stop asking leading questions on direct exam, the bailiff will be leading you into a jail

cell." R611

863) "I'll give you a present sense impression." R803(1)

864) "Are you saying that's the best evidence you have?" R1002

865) “I'll show you judicial notice.” R201

866) “I'm sorry to burst your bubble, but the opposing counsel has met their burden.” R301

(The Thayer – Wigmore, bursting bubble approach to presumptions)

867) “The best evidence in your case would be for you to keep your mouth shut.” R1002

137

Da Judge - Photoshopped and Cartoonized by John Barkai Additional captions

868) “Counselor, throwing “punches” at the witness does not count as an “attack” of his credibility under

Rule 608(a).” R608(a)

869) This exam is clearly the best. I’ll take judicial notice of that. R201

870) “Counsel, for the last time, you cannot object for “da kine.” (“Da kine” is Hawaiian Pidgin for “that

thing).

871) “For the last time counselor, the neighbor’s dog wagging his tail when your client found “presents”

all

over his lawn is not an intended assertion. Besides, the hearsay rule does not apply to dogs.” R801.

872) “When I mentioned the Robert’s standard, I wasn’t talking about the tour bus company.”

(Confrontation)

873i) “I will not permit the witness to play his theme music to show his good character.” R404

874) “I decide questions of admissibility under Rule 104.

A question about whether Baby Yoda is the cutest thing ever, is not relevant.” R104, R401

875) “In the future, please say “I object,” and state your reasons instead of saying B.S.” R103

876) “I didn’t not fall asleep counselor. But it doesn’t matter because although I will admit the evidence

under Rule 401, I’m excluding it under rule 403.” R401/403

877) “The wheelbarrow and cement are interesting exhibits, but that’s still not good enough to lay the

foundation.” R901

878) The jury is instructed to disregard the defendant’s lawyer’s evidence grade

879) “No bolstering. We have to assume that your client has “ good character” until his character for

truthfulness is attacked.” R608(a)

880) It is judicially noticed that Zippy’s is da bomb. R201 (Zippy’s is Hawaii local restaurant chain that

serves local foods and is especially well known for its chili.)

138

Da Judge - Photoshopped and Cartoonized by John Barkai Additional captions

881) "I don't care how many objections Professor Barkai taught you, none of them apply here!"

882) “Sorry, but this piece of circumstantial evidence contains far more confusion than probative

value.” R401/403

883) Don’t explain the law to me. I am the law!

884) “Offers to pay hospital expenses are not generally admissible, but because your client also

offered to put the plaintiff into the hospital, both statements will be admitted.” R409

885) “Stop shouting “bias is never collateral.” No one knows what that means, and please put

your left shoe back on.” R612 (Bias – refreshing memory - impeachment) (Barkai-ism)

886) “Counsel, if you say “Bias is never collateral” one more time I’ll have you held in

contempt. (Bias– impeachment) (Barkai-ism)

887) “Please, no more left shoes.” R612 (Refreshing memory) (Barkai-ism)

888) “Did you just tell me that business records are KRAP?” R803(6) (Barkai-ism)

889) “I know. I know. Sincerity, Perception, Articulation, and Memory. Now please put the

SPAM beach ball away and make a proper objection.” R801

(SPAM – an acronym for the four hearsay risks. I toss a beachball around the classroom

with the word SPAM on it the during our first hearsay class.) (Barkai-ism)

890) “I don’t know who this Professor Barkai is that you keep talking about, but if you don’t stop

objecting by shouting SPAM and HALO, I’ll hold you in contempt.”

R609, 801 (Barkai-ism)

139

Judge Roxy & Witness Lancer – Photoshopped by John Barkai Additional captions

891) “His reputation in the community is as a “pawfert Hoomun.” R404 R405

892) “Bark is cheap, show me the evidence.

893) “Objection sustained. The declarant was only playing dead." R103

894) Judge dog: "So, it seems your reputation precedes you."

Witness dog: "Yeah, I guess you could say I am a real sly dog in my community." R404

R608

895) “Your claiming that you are not biased, but isn’t it true that you crawl and bark at every cat

that you pass on the street?” (Bias)

896) “Then I told my dog I was having a “ruff” day. Oh wait, that’s privilege, right?” R501

897) “Yes, I always sniff the third yellow fire hydrant from the lab(ra)door." R406

898) “Yes, barking does constitute an oath or affirmation to tell the truth in this jurisdiction."

R603

899) “Please raise your right paw and bark after me." R603

900) “Because the dog-gone dog is actually gone, I rule that the dog-clarant is unavailable, and

the witness may repeat in court the bark she heard out of court.” R804(a)

140

How to Present a Cartoon in Class or Training

When I use a cartoon in a PowerPoint presentation, I usually present it using two slides. The first slide is

just the cartoon without a caption. I describe the cartoon even when my audience is looking at it. Second,

I switch to a new slide or animate the first one, which adds the caption to the cartoon. I read the caption

out loud. By reading it out loud, I get to add volume, tone and inflection, which I hope improves the

delivery of the humor point. Too frequently, I have watched people use a cartoon without giving any

description what is in the cartoon and not reading the caption. Some people in the audience may be

visually challenged. Others sitting in the back rows of larger classrooms cannot see the cartoon or the

caption very well. More often than I would like to admit, still others simply are not paying attention as I

start showing the cartoon.

How to Use Cartoon Captioning Questions on Exams

When I first started using cartoons on exams, the students did not see the cartoon until exam day when

they opened the exam. I got a lot of great captions, but realized I was adding greater pressure to the

students taking the exam even though for all my captioning contests the directions say, “All captions

written in English receive full credit” – which means their answers do not count towards their grades. I

have changed my approach. These days I pass out the cartoons well in advance of the exam, usually a

week or more before the final exam, so students can look at and think about the cartoons while they are

studying for the exam. Advance notice of the cartoons improves the quality of captions, and takes some

pressure off the students. I tell students that while they are studying for exams, they should write down a

few captions. They are allowed to bring their list of captions into the exam room on a single sheet of

paper or printout of the exam page with their captions. I give them the cartoon page in advance. (See an

example of my exam cartoon page later in this book.) Students can simply put the sheet of paper with

their captions into their exam envelope. It takes them almost no time during the exam.

There is an academic benefit to using cartoon captioning on exams, especially when students are given

the cartoons in advance of the exam. The process of coming up with captions while studying for the exam

makes the subject matter less intimidating and allows the students to make better connections with the

intricacies of the material. Captioning helps students to see the subject material from a different

perspective, which reinforces their learning. It also allows them to "vent" some emotions about the rigors

of exam preparation.

Initially back in 1980, I just wanted to see what kind of captions I could get from the students. It was just

for my enjoyment. I soon realized that I really enjoyed reading some of the captions, many others were

not funny at all to me, and still others were not printable or repeatable in polite company. When I found

that many of the captions were original, insightful, and sophisticated, and I realized they would make

great teaching materials for future classes. After the exam, pre-internet, I just posted the better captions on

the bulletin board around the law school. The next development was to email students a list of the better

captions sometime after the final exam. I used to present the cartoons and captions on overhead

transparencies. I remember lugging heavy boxes of transparencies to Japan, Hungary, and Australia for

week-long, intensive workshops. Now of course, I just carry the electrons for my PowerPoint

presentations on a jump drive or pull them down from the Cloud.

Cartoon captions serve another purpose. As I tell the students during the semester, it is a good idea to

have the exam reader (me) in a good mood while I am grading. Early in the semester when I explain the

exam content, I tell students that I do not read anyone’s captions just before or after I read their exam

answer. I read all Question # 1 answers, then move on to Question #2, etc. I take breaks during my

grading as I read some of the captions and decide which few captions I want to later copy and use for

future classes.

141

I never look at the captions a student submitted before I assign points to the students essay answer,

although sometimes I will look to see if some of the better captions come from students with the higher

grades. Usually they do not. My conclusion is that humor is not related to subject matter proficiency. I

also send the captions to anyone I had as a guest speaker that semester, and I send the cartoons and

captions from my evidence final exam to the bar members I serve with on the Hawaii Supreme Court’s

Standing Committee on Evidence.

In my early years of using captioning contests I only used one cartoon per exam, but now I usually

include four cartoons for the students to caption. Multiple cartoons increase my chances of getting some

good captions. Students only have to write a single caption for one cartoon to get “full” credit, but many

students write multiple captions.

Encouraging You To Try A Cartoon Captioning Contest In Any Of Your Classes

What is so funny about the course you teach? Your students will tell you if you only give them a chance. I

encourage you to try a captioning contest during your final exam, as a supplement to your final paper, or

as an exercise during any class session. It could also be bonding exercise, or short break, for your students

in Zoom breakout rooms.

Cartoon captioning contests result in humorous cartoon captions that can be incorporated into later classes

and presentations. Some of the captions are very unique and not typical of captions you would find in

normal cartoons or even the New Yorker Cartoon Captioning Contest. For example, I probably have the

only cartoon captions about such topics as the residual exceptions to the hearsay rule, specific evidence

cases, arbitrator selection, and direct criticism of Supreme Court Justice Anthony Scalia’ evidence

opinions on the confrontation clause. In fact, I gave Justice Scalia the cartoons and captions mentioning

his opinions when he visited our school many years ago. He thought they were funny – at least that is

what he told me.

Some of the cartoons poke fun at me. When I use those captions in future classes can be a good form of

self-deprecating humor. A theme that has been repeated a few times for in captions for my evidence class

using cartoons with two prisoners in a cell, or two prisoners in a prison yard, goes something like, “What

a coincidence. My lawyer had Barkai for evidence too!” Or another prisoner caption that puts me in a

better light is, “I’ll be getting out soon. My new lawyer had Professor Barkai for evidence.”

I am sure you can find some good cartoons for captioning for any class you teach. Just Google cartoons,

find a few, and give it a try. I have found that some of the best cartoon setting for evidence cartoon

captions are prisoners, judges, and people meeting in an office or even a jail cell. I think it would be

possible, at least for evidence, to have a single cartoon that I could use in every class and just use different

captions to relate to every topic we cover during the semester. I think I could do that with cartoons of

judges talking, prisoners talking, or a lawyer-client conference. Another good source for captions is two

or more judges on an appellate bench, or two judges walking in the halls of the courthouse. You can find

such cartoons by doing an image search in a search engine such as Google.

For my negotiations and ADR course, often the cartoons that lead to good captions have two, and often

three, people or animals in many of the cartoons because a group of three is perfect for mediation or

arbitration captions because the third person or animal can be seen as a mediator or arbitrator.

So you don’t really have to be funny to promote laughter in your class. Cartoons can do that work for

you. Let your student create the captions. I will improve their learning, make future classes more

entertaining, and as a side benefit, your student evaluations might increase.

142

Sample Cartoon Page from a Barkai Evidence Exam

Exam No._________________

Part 4. CARTOON CAPTION (10 percent max ; 6 minutes)

Write a caption for one or more of the cartoons below based on the class. All captions written in

English will receive full credit.

Judges on the bench

Judges talking

Dogs

Prisoners

143

John Barkai Professor of Law


University of Hawaii, 2515 Dole Street,

Honolulu, Hawaii 96822, Phone: (808) 956-6546, E-mail: [email protected]

-Professor of Law, Director and later Co-Director of the Clinical Programs at the University of Hawaii School

of Law since 1978;

-Professor at Wayne State University Law School 1973-1978 (tenured 1978).

-Deputy Defender, criminal trial lawyer, Legal Aid & Defender Association, Detroit, Michigan 1972 - 1973

-BBA (1967), MBA (1968) and JD (1971) from the University of Michigan.

-Visiting Senior Scholar, City University of Hong Kong 1992-93

-served as a consultant to the Hawaii Judiciary, The Judiciary of the Republic of the Marshall Islands, the

Supreme Court of the Federated States of Micronesia, the Pacific Judicial Council, and the Minister of

Justice for Papua New Guinea

-"Outstanding Professor of the Year” 2005-06 & 1991-92, William S. Richardson School of Law

-University of Hawaii. Regents’ Medal for Excellence in Teaching, 2007

-member of the Hawaii Supreme Court's Standing Committee on the Rules of Evidence since 1993

-teaches courses on Evidence, Alternative Dispute Resolution, and Prosecution Clinic at the Law School, and

previously taught criminal law, criminal procedure, international business transactions, and numerous

writing courses

-taught Negotiation and ADR courses at Pepperdine, Ohio State, Idaho, and Hamline law schools, as well as

Shinshu University (Japan), Central European University (Hungary), Helsinki School of Economics

and Business (Finland), and La Trobe Law School (Australia)

-frequently conducts trainings in Hawaii and has taught workshops and trainings in Australia, Finland, Hong

Kong, Hungary, Japan, and the Federated States of Micronesia (Kosrae & Pohnpei)

-made presentations in Canada, England, Japan, Korea, Malaysia, Netherlands, Russia, and Taiwan

-co-author of the teacher’s manual for Abramson’s Mediation Representation: Advocating as a Problem-Solver

in Any Country or Culture (N.I.T.A. 2010)

-taught International Negotiations at the Shidler College of Business in the Japan focused and China focused

Executive MBA programs (1985-2007), Intercultural Negotiations at JAIMS (Japan American

Institute for Management Science (1986-present), and the Asia-Pacific Center for Securities Studies

(2010-2014)

- trainer for 7-day Mediation Workshops for 30-50 Judges from the Kingdom of Thailand, Honolulu, 2008,

2010, 2012, 2014

-worked in the field of ADR since 1979 after becoming a member of the first group of mediators trained at the

Neighborhood Justice Center of Honolulu (now called Mediation Center of the Pacific)

-mediated cases for the Neighborhood Justice Center, the Hawaii Judiciary's Center for Alternative Dispute

Resolution, the State of Hawaii, and private groups

-former chair and co-chair of the Alternative Dispute Resolution (ADR) Section of the Hawaii State Bar

Association (for 10 years)

-past president and board member of the Board of Directors of the Neighborhood Justice (Mediation) Center of

Honolulu

-founding member (1986) of the University of Hawaii's Program on Conflict Resolution

-ran the "Humor in ADR" Cartoon Captioning contest in the American Bar, Association's Dispute Resolution

Magazine,1997-2011

-arbitrates for the Hawaii Court-Annexed Arbitration Program and the Department of Commerce and

Consumer Affairs' Lemon Law Program

-former chair of the ADR Section of the Association of American Law Schools

-published numerous articles on the subject of negotiation, mediation, and empirical studies of court ADR

144

Evidence Handbooks by John Barkai

If you do trials,

you might find one of my evidence handbooks helpful American Samoa Rules of Evidence Handbook with Common Objections & Evidentiary

Foundations (2019)

Arizona Rules of Evidence Handbook with Common Objections & Evidentiary Foundations

(2020)

California Rules of Evidence Handbook with Common Objections & Evidentiary Foundations

(2020)

Chuuk Rules of Evidence Handbook with Common Objections & Evidentiary Foundations

(2019)

Federal Rules of Evidence Handbook with Common Objections & Evidentiary Foundations

(2020)

Federated States of Micronesia Rules of Evidence Handbook with Common Objections &

Evidentiary Foundations (2019)

Florida Evidence Code Handbook with Common Objections & Evidentiary Foundations (2020)

Hawaii Rules of Evidence Handbook (2018)

Hawaii Rules of Evidence Handbook with Common Objections & Evidentiary Foundations

(2020)

Humor in Negotiations & ADR: Cartoon Caption Contest Winners from the ABA Dispute

Resolution Magazine (2020)

Humor in Trial Evidence: Cartoon Caption Contest Winners and Challenges from My Evidence

Class (2020)

Illinois Rules of Evidence Handbook with Common Objections & Evidentiary Foundations

(2020)

Kosrae Rules of Evidence Handbook with Common Objections & Evidentiary Foundations

(2019)

Marshall Islands Rules of Evidence Handbook with Common Objections & Evidentiary

Foundations (2019)

145

Michigan Rules of Evidence Handbook with Common Objections & Evidentiary Foundations

(2020)

Military Rules of Evidence Handbook with Common Objections & Evidentiary Foundations

(2020)

New Jersey Rules of Evidence Handbook with Common Objections & Evidentiary Foundations

(2020)

Ohio Rules of Evidence Handbook with Common Objections & Evidentiary Foundations (2020)

Pennsylvania Rules of Evidence Handbook with Common Objections & Evidentiary

Foundations (2020)

(Pennsylvania) Just the Rules: Pennsylvania of Evidence (2020)

The Pocket Guide to Common Trial Objections & Evidentiary Foundations (2020)

Pohnpei Rules of Evidence Handbook with Common Objections & Evidentiary Foundations

(2019)

Texas Rules of Evidence Handbook with Common Objections & Evidentiary Foundations

(2020)

(Texas) Just the Rules: Texas of Evidence (2020)

Virginia Rules of Evidence Handbook with Common Objections & Evidentiary Foundations

(2020)

Yap Rules of Evidence Handbook with Common Objections & Evidentiary Foundations (2019)

All the above books are (or will be shortly) available exclusively on Amazon.com and are “print-on-demand.”

To find Barkai’s evidence handbooks,

1. Go to the Amazon website – www.Amazon.com

2. Change the tab on the left side of the search bar from “All” to “Books,”

3. Enter - Barkai evidence

146

Acknowledgments & Thank You

I thank the following cartoonists or their agents for allowing me to use their cartoons for this book.

Mallory Hee

Mark Anderson, Andertoons

Chon Day, by Stephen Day

Joseph Mirachi, Estate of Joseph Mirachi

Mischa Richter, Estate of Mischa Richter

Mike Shapiro

Mike Twony

Baloo / Rex May, CartoonStock

Tim O’Brien, (TKO), CartoonStock

I thank the following relatives, friends, colleagues, or their agents for allowing me to use their headshot

images in this book.

Addie Bowman

Alison Conner

Art Tarnow

Avi Soifer

Benny Au

Bill Chang

Brad Coates

Bruce Barnes

Calvin Pang

Camille Nelson

Carole Petersen

Catherine Bye

Charlie Booth

Chuck Crumpton

Chuck Martell

Cory Lenz

Corey Park

Dan Barnett

Dan Blackaby

Dana Lum

David Callies

David Chandler

David Forman

Denise Antolini

Dennis Fanchini

Elisabeth Steele Hutchison

Elizabeth Kent

Eric Yamamoto

Hal Abramson

Hazel Beh

Hope Barkai

Irwin Stotzky

Jeremy Harrison

Jerry Clay

Jerry Dupont

Jim Countiss

Jim Pietsch

Jim Taylor

John Barkai. Sr.

Jon Van Dyke

Julie Suenaga

Justin Levinson

Kapua Sproat

Keiko Okuhara

Kelly Hernandez

Kem Lowry

Ken Lawson

Kristi Shiraki

Larry Foster

Leah Barkai

Liam Skilling

Linda Krieger

Linda Martell

Livia Barkai

Lou Chang

Lynette George Rudolfo

Mallory Hee

Mari Matsuda

Mark Levin

Mark Stickgold

Marvin Anderson

Melody MacKenzie

Nick Mirkay

Peter Adler

Peter Hoffman

Peter Van Zile

Piyada Nonzee

Randy Roth

Richard Pollack

Ron Brown

Ronette Kawakami

Sabrina McKenna

Spencer Kimura

Stuart Israel

Susan Serrano

Tom Crowley

Tracey Wiltgen

Trisha Nakamura

Troy Andrade

Vicki Szymczak

Walter Lippmann

Wes Kau

147

Index of Captions by Evidence Topics

Topic and Caption Number

Admission 19, 49, 284, 321, 327, 335, 336, 487,

500, 606

Adoptive admission by silence 262, 837, 839

Ancient document 21, 30, 105, 133, 134, 176

Apology 445

Approach the witness

Authentication 188, 451, 472, 541, 549

- Chain of custody 248, 275, 436, 542

- Distinctive characteristics, 577

- Fair and accurate representation 118, 143, 505,

718, 727

Balancing 160, 191

Bar exam 260 90

Barkai Barkai-ism 67, 72, 73, 74, 75, 76, 71, 78,

79, 80, 81, 132, 199, 233, 239, 243, 254, 278,

312, 346, 122, 557, 569, 589, 829, 881, 886

Best evidence 13, 24, 58, 174, 299, 339, 420,

564, 709, 864, 867

Bias 496, 581, 619, 621, 624, 633, 638, 639, 640,

641, 672, 680, 699, 745, 895

Bias is never collateral 60, 77, 116, 186, 144

Big mouth 772, 77 4, 787

Bolstering 879

Brick is not a wall 405

Business records 291, 332, 456, 466, 802

Character evidence 159, 194, 221, 228, 230, 268,

276, 317, 319, 323, 356, 373, 376, 378, 380,

382, 384, 404, 409, 439, 483, 530, 550, 571,

579, 596, 599, 600, 608, 611, 613, 639, 719,

772, 787, 832, 849, 873, 891

Chewbacca 341

Circumstantial evidence 270, 325, 708, 82

Co-conspirator 233, 261, 287,

Collateral 9, 597, 680, 697

Competence 17, 28, 47, 126, 166, 193, 499, 532,

547, 622, 634

Confession 284, 799

Confrontation Crawford 10, 45, 65, 79, 82, 83,

84, 85, 86, 87, 88, 89, 90, 91, 117, 155, 206,

227, 243, 278, 316, 320, 338, 347, 348, 387,

395, 411, 424, 449, 508, 527,848,872

Contempt 524, 886, 890

Crime fraud exception 830

Crooked Creek 314, 344, 345, 389

Cross-examine 34, 355, 395, 631, 638, 686, 774,

807

CRUD 203, 289, 535, 536, 537, 538, 539

Da kine 169

Daubert 93, 95, 101, 101 8, 177, 201, 393, 402,

544, 592,

Discretion 173

Donald Trump 225, 423, 782, 6804

Dying declaration 195, 231, 253, 281, 315, 417,

478,, 612, 739, 893

Email 326

Emanuel’s and other commercial outlines 12,

145, 196

Essential party 517

Evidence class 4, 115, 277, 295, 337, 340, 523

Evidence exams 163, 234, 237, 330, 33, 398,

440, 829, 853, 860

Evidence final 238

Evidence grade 878

Evidence students

Exceptions to the rule 5, 27, 386, 388, 433, 452,

714, 848

Excited utterance 25, 106, 456, 465, 503, 510,

616, 691, 700, 702, 705, 740, 856

Excluding witnesses 513

Expert 48, 92, 93, 94, 95, 96, 97, 98, 99, 100,

101, 101 8, 201, 228, 274, 308, 371, 374,

375, 379, 381, 432, 511, 556, 559, 592, 598,

617, 630, 634, 662, 663, 667, 684, 692, 760,

782, 855, 861

- Reasonably relied upon by experts 178

Facebook 271, 293, 786

Flip a coin 61, 65, 161

Forfeiture 764

Former testimony 123

FRE 143, 279, 300, 393, 426 710, 716, 720, 726,

737

Frye 92, 861

Gatekeeper 48, 99, 177 , 402, 432, 511,

Good boy 550, 571, 591, 599, 600, 608, 609,

611, 613,

- Bad boy 596

Grand jury 278

Habit 29, 159, 482, 554, 566, 572, 604, 897

HALO 357, 358, 390, 392, 399, 400, 401, 459,

890

Harmless error 258

148

HARROWING 102, 522

Hearsay 14, 18, 23, 55, 146, 161, 172, 189, 236,

273, 396, 413, 414, 419, 428, 437, 458, 462,

504, 515, 520, 531, 551, 553, 558, 573, 595,

601, 602, 615, 625, 627, 628, 629, 715, 738,

798, 808, 843

Hearsay within hearsay 246, 724

Hillmon 120, 314, 344, 743

Hostile witness 623, 759, 766

HRE (Haw. R. Evid) 279, 286

HRE 609 – 242

Impeachment 9, 242, 417, 469, 474, 563, 636,

685, 687, 634

Impeach jury verdict 164

Insurance 733

Interpreters 41

Judicial notice 7, 31, 32, 33, 34, 35, 36, 37, 38,

51, 71, 121, 125, 131, 162, 165, 169, 185,

190, 202, 461, 609, 784, 785, 859, 865, 869,

880

KRAP 130, 203, 289, 291, 491, 493, 494, 649,

655, 790, 802, 888

Law students 280

Law school 54, 226

Laying foundation 518, 857, 877

Leading questions 457, 546, 603, 635, 637, 693,

759, 768, 853, 862

Learned treatise 145, 780, 795

Left shoe (see “Shoe”)

Limiting instructions 157, 171

LinkedIn 259

Medical expenses 884

Mercy rule 264, 530

Montalbo (Hawaii Daubert case) 96, 544

Moved to strike 693, 735

Nolo plea 22

Nonverbal assertion 575, 770, 841, 871

Oath 509, 587, 591, 642, 858, 898, 899

Objections 8, 128, 129, 184, 241, 318, 481, 525,

526, 603, 735, 759, 779, 783, 875, 881

Open the door 292, 361A, 408, 772, 774, 777

OTP - offered to prove 725, 781

Peer-reviewed 374

Perry Mason 519

Personal knowledge 209, 480, 545

PET 560, 651, 652, 653, 654, 656, 657, 658, 659

Prejudicial effect 229, 247, 427, 438, 450

Preliminary questions 207

Presumed innocence 62

Prior bad acts 230, 384, 417

Prior conviction 187, 283, 328, 329, 397, 660,

847

Prior identification 473, 486, 489

Prior inconsistent statement 122, 794

Prior testimony 231

Probative value 64, 168, 427, 447, 882

Present sense impression 343, 456, 464,, 507,

602, 844, 863

Presumptions 42, 46, 105, 167, 175, 731, 866

Privileges 44, 113, 207, 460, 543, 555, 576, 594,

643, 717, 721, 729, 732, 736, 851, 896

-Spousal adverse 249, 252, 263, 290, 294, 302,

304, 309, 310, 331, 334, 342, 350, 512, 528,,

707, 713, 730, 791, 827

-Marital communication 252, 297, 723, 832

-Attorney-client 311, 353, 455, 520,, 723, 793,

796, 800, 803, 804, 805, 806, 812, 813, 814,

828, 830, 831, 835, 840

Recorded recollection 456, 548, 574, 626

Refreshing recollection 81, 118, 142, 154, 182,

260, 403, 485, 492, 533, 590, 632, 644, 645,

647, 767, 771, 773, 788, 789, 815, 885

Relevancy 163, 208, 325, 401, 403, 405, 406,

407, 411, 560, 561, 607, 651, 652, 653, 654,

656, 657, 658, 659, 680, 725, 762, 874

Religion 587

Reputation 245, 257, 373, 409, 418, 467, 468,,

550, 579, 581, 685, 712, 741, 765, 894

Residual (Catch-all) hearsay exception 6, 313,

570

Restyle 11, 15, 59, 114

Robes 50, 70, 192

Roberts 91, 872

Routine practice 53

Scalia 10, 56, 316, 628

Sequestered 430, 498, 513

Settle 112 , 606

Shaka sign 858

Sheppard 389

Shoe (or my left shoe) 81, 118, 149, 154, 174,

197, 359, 361, 492, 590, 644, 645, 647, 650,

775, 776, 788, 789 815, 885, 887

Sir Walter Raleigh 349

Sleep 16, 153, 532, 710, 876

Snap chat 58

SODDIT 567, 769 [Some Other Dude Did IT]

SPAM 20, 203, 255, 535, 536, 537, 539, 540,

646, 648, 655, 850, 852, 889, 890

149

Statement against interest 19

Subsequent remedial measures 301

Sufficient guarantees of trustworthiness 385

Teaching evidence

Televised trials 728

Testimonial 10, 45, 83, 87, 89, 90, 91, 206, 449,

508

Trial experience 816

Trust 232

Truth 250, 334, 777

Truth of the matter 53

Twitter 49, 293, 793

Unavailability 381, 410, 416, 446,, 502, 764,

845, 900

University of Hawaii graduate 251

Upjohn 568

White privilege 306

Williams

Witness 144

Work product 113

150

Index of Captions by Federal Rules of Evidence

Rule ………………………… Caption Number

Rule 103. 8, 128, 129, 184, 241, 258, 318, 481,

525, 526, 603, 693, 735, 759, 779, 783, 853,

875, 881

Rule 104. 207, 874

Rule 105. 157, 171

Rule 201. 7, 31, 32, 33, 34, 35, 36, 37, 38, 51,

71, 107, 125, 131, 162, 165, 169, 185, 190,

202, 461, 609, 784, 785, 859, 865, 869, 880

Rule 301. 42, 46, 105, 121, 167, 175, 731

Rule 401. 191, 270, 325, 408, 412, 415, 429,

435, 522, 560, 561, 607, 680, 708, 725, 762,

874, 876, 882

Rule 403. 64, 150, 160, 163, 168, 191, 221, 229,

245, 247, 257, 264, 268, 276, 408, 412, 427,

429, 431, 438, 506, 522, 876, 882

Rule 404. 159, 228 317, 319, 323, 324, 356, 373,

378, 380, 382, 384, 404, 409, 417, 418, 435,

467, 468, 483, 530, 550, 571, 579, 596, 599,

600, 608, 611, 613, 639, 712, 719, 741, 765,

772, 787, 829, 832, 873, 891, 894

Rule 405. 409, 550, 579, 596, 599, 600, 712, 891

Rule 406. 29, 159, 453, 482, 483,, 554, 565, 566,

572, 604, 605, 897

Rule 407. 301, 733

Rule 408. 112, 606

Rule 409. 884

Rule 410. 22

Rule 411. 733

Rule 501. 108, 207, 249, 256, 263, 269, 290,

294, 297, 302, 304, 306, 309, 310, 311, 331,

342, 350, 353, 455, 460, 512, 528, 543, 555,

568, 576, 594, 643, 707, 713, 717, 721, 723,

729, 730, 732, 736, 791, 793, 796, 800, 827,

828, 830, 831, 833, 835, 840, 846, 851, 855,

896

Rule 502. 113

Rule 601. 166, 193, 495, 499, 532, 547, 622,

734, 779

Rule 602. 209, 480,, 545

Rule 603. 509, 587, 642, 853, 898, 899

Rule 604. 41

Rule 605. 17, 28, 47, 103, 126

Rule 606. 164

Rule 607. 685

Rule 608. 194, 221, 232, 276, 334, 355, 373,

378, 384, 417, 550, 571, 581, 685, 777, 879,

894

Rule 609., 242, 265, 283, 328, 329, 354, 357,

358, 360, 390, 392, 397, 99, 400, 41, 417,

432, 459, 660, 847

Rule 610. 587

Rule 611. 457, 470, 546, 603, 623, 631, 635,

637, 680, 693, 696, 698, 759, 768, 807, 853,

862

Rule 612. 81, 118, 149, 154, 182, 197, 265, 359,

361, 45, 492, 533, 590, 632, 644, 645, 647,

767, 771, 772, 773, 776, 788, 789, 815, 885,

887

Rule 613. 303, 794

Rule 614. 144

Rule 615. 430, 598, 513, 517

Rule 702. 48, 93, 95, 96, 97, 98, 99, 100, 101,

100 18, 177, 201, 228, 274, 308, 371, 375,

379, 381, 393, 402, 511, 544, 556, 559, 592,

598, 617, 661, 662, 667, 684, 692, 760, 782,

861

Rule 703. 92, 173

151

Rule 801. 14, 18, 23, 53, 55, 57, 146, 161, 172,

189, 236, 255, 303, 321, 327, 396, 428, 437,

458, 462, 504, 509, 515, 520, 522, 531, 551,

553, 558, 573, 575, 595, 601, 615, 625, 627,

628, 629, 630, 634, 665, 668, 680, 715, 738,

770, 798, 808, 841, 843

Rule 801(d)(1)(B) 122

Rule 801(d)(1)(C) 473, 486, 489

Rule 801(d)(2) 19, 49, 223, 261, 262, 284, 287,

321, 327, 335, 336, 338, 487, 500, 606, 837,

839

Rule 803. 5, 27, 273, 386, 388, 417, 419, 433,

574, 714

Rule 803(1) Present Sense Impression. 343, 456,

464, 507, 602, , 691, 700, 702, 705, 740, 856

Rule 803(2) Excited Utterance. 25, 106, 456,

465, 503, 510, 616, 691, 700, 702, 705, 740,

856

Rule 803(3) Then-Existing Mental, 120, 314,

344, 456, 463, 743, 842

Rule 803(4) 456

Rule 803(5) 456, 548, 574, 626

Rule 803(6) 291, 332, 456, 466, 802

Rule 803(16) 21, 30, 105, 133, 134, 176

Rule 803(18) 145, 780, 795

Rule 804. 5, 27, 273, 386, 387, 388, 410, 416,

419, 433, 446, 502, 714, 845, 900

Rule 804(b)(1) 123, 239

Rule 804(b)(2) 195, 231, 253, 281, 350, 478,

612, 739, 893

Rule 804(b)(3) 19, 296

Rule 804(b)(6) 366

Rule 805. 246, 724

Rule 806. 868

Rule 807. 6, 313, 385, 570

Rule 901. 102, 188, 248, 275,, 418, 436, 443,

451, 472,, 505, 518, 522, 541, 542, 549, 577,

718, 727, 788, 857, 877

Rule 902. 124

Rule 1002. 13, 24, 58, 174, 339, 420, 522, 864,

867

Rule 1003. 564

Rule 1006. 709

152

Dedication

To Linda, Leah, and Hope, who bring me so much joy and enrich my life

and

to the hundreds of my former evidence and clinical students

who learned the rules of evidence with me

over the past 40 plus years at the William S. Richardson School of Law

at the University of Hawaii

Teaching Evidence Since 12 B.C.

Art by Dan Mazanec

I have been teaching evidence in my clinics at Wayne State University and the University of Hawaii

since 12 B.C. and in a formal evidence class since 4 B.C. – that is 12 years and 4 years” Before

Computers” were used by faculty and staff at the University of Hawaii.

About the Author

John Barkai has been a full-time law professor for more than 45 years. He currently teaches evidence, a

criminal prosecution clinic, and negotiation & ADR, at the University of Hawaii School of Law. He has

received his University's Excellence in Teaching award and has twice received the Professor of the Year

Award at the law school. More information about him and his scholarship appeared on previous pages.

John Barkai

What a coincidence,

my lawyer had Barkai for evidence too.

humor in trial evidence - university of hawaiʻi

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