Cam’s Evidence Outline
I. Evidence Law and the System (Intro)
A. 5 Basic Question to Explain Evidentiary Problems
1. What is the evidence being proffered?
2. Who is the proponent?
3. Why is it being offered?
4. What is the possible problem with its admissibility?
5. How to overcome this problem?
B. Why Evidence Law at All?
1. 5 Major Reasons
a. Mistrust of Juries: Amateur factfinders cannot do a good job in evaluating statements
made outside its presence and juries may put too much weight on such proof.
b. Substantive Policies relating to the Matter in Suit: e.g. setting the burdens of
persuasion serve policy purposes.
c. Substantive Policies Unrelated to the Matter in Suit: These rules seek to affect
behavior or quality of life outside the courtroom. Privileges are the main example. e.g.
protecting marital privacy through spousal privileges.
d. Ensure Accurate Factfinding: e.g. authentication of evidence, laying the foundation,
best evidence doctrine, etc.
e. Control the Scope and Duration of Trials: E.g. Rule 403's permission to the judge to
exclude evidence that would be otherwise admissible simply because it will take more
time than it is worth and will confuse the jury or judge’s control over the mode and
order of testimony and evidence in Rule 611.
C. Rules on Applicability and Scope of the Rules
1. FRE 101 - Scope
a. Rules apply to proceedings in U.S. Courts, unless an exception from FRE 1101
applies.
2. FRE 102 - Purpose and Construction
a. Construed to:
 Administer every proceeding fairly;
 Eliminate unjustified expense and delay; and
 Promote the development of evidence law to ascertain truth and secure just
determinations.
3. FRE 1101 - Applicability of Rules
a. Rules apply to virtually all Federal courts;
b. Apply generally to civil and criminal cases and proceedings.
c. Rule of privilege applies at all stages of actions, cases, and proceedings.
d. Rules do not apply in below circumstances:
 Preliminary questions of fact under FRE 104(a);
 Grand jury proceedings;
 Issuing warrants;
 Preliminary hearings;
 Sentencing;
 Probation revocations;
 Bail determinations; and
 Extradition.
D. Making the Record (5 Parts)
1. The Pleadings:
a. Civil: Complaint, answer, third-party claims, counterclaims, and cross-claims.
b. Criminal=indictment, complaint, information, or the plea.
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2. Filed Documents:
a. Motions, briefs, documents seeking and providing discovery, jury instructions,
judgments, and court orders.
3. The Record of Proceedings:
a. Verbatim memorial of transpires from a Court Reporter's transcription.
4. Exhibits:
a. Documents or physical objects that are identified and lodged with the court.
5. Docket Entries:
a. Ledger of the proceedings with dated line items entered in chronological order.
E. How Evidence is Admitted or Excluded
1. Testimonial Proof—Direct Examination
a. Most of a trial involves presentation of live testimony by witnesses
b. 3 Goals of Direct Examination
 Bring out background information
 Lay the foundation that the witness has personal knowledge or expertise of the
issue
 Getting substantive information about the pertinent facts
c. For the most part, direct examination must proceed by non-leading questions. FRE
611(c).
 The idea is that the witness is testifying—not the attorney.
2. Testimonial Proof—Cross Examination
a. Uses leading questions. FRE 611(c).
b. Scope-of-Direct Rule. FRE 611(b)
 Cross-examination is limited to matter explored on direct.
 But, the judge may permit inquiry into additional matters “as if on direct
examination.” FRE 611(b)
3. Real Evidence
a. Tangible things directly involved in the transactions or events in litigation.
b. Evidence must be authenticated.
c. Beyond “writings,” real evidence usually not need to be physically produced.
Testimony can establish its existence.
d. But, the Best Evidence Rule usually require the introduction of writings. See FRE
1001-1008.
4. Demonstrative Evidence
a. Tangible proof that makes graphic the point to be proved.
b. Used for illustrative purposes at trial, but played no actual role in the events leading to
the lawsuit.
 E.g. diagrams, photographs, maps, models, computer reconstructions, etc.
F. Keeping Evidence Out
1. Objections
a. Objects must be timely, i.e. raised at the earliest reasonable opportunity.
 Usually stated after the proponent asks questions, but before the witness
answers.
 After the witness responds, it becomes a “motion to strike,” accompanied with
curative instructions and usually a motion for a mistrial.
b. Objections must include a statement of the underlying reasons/grounds for the
objection.
c. Substantive objections
 Rest on exclusionary principles in the Rules
i. E.g. hearsay, best Evidence Rule, privileges, character evidence, etc.
d. Formal Objections (these focus on the manner of question or other formalistic issues)
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
"Asked and answered": Repeatedly putting the same, already answered
question.
 "Assumes facts not in evidence": If the questioner imparts information in the
question, it must be supported by proof already admitted.
 "Argumentative": Usually grandstanding and dripping with contempt.
 "Compound": Creates a confusing question or creates an answer with
alternative or ambiguous responses.
 "Leading the witness": Impression is that the lawyer is telling the witness what
to say.
 "Misleading": The question misstates prior evidence.
 "Speculation or conjecture": Witnesses must "know," not "guess" or "suppose."
Experts have more leeway.
 "Calls for narrative response": If a lawyer asks a wide open question, the other
lawyer may fear that the witness will say objectionable things that the lawyer
cannot preemptively object to. Judges differ on this issue, but witnesses are
often given the latitude to speak. The objection lawyer is often asked to
specifically express his concerns at a sidebar.
 "Ambiguous, uncertain, and unintelligible": Generally just bad question that do
not make sense or are confusing.
 "Nonresponsive to the question": Attorney asks the judge to strike an answer
that did not truly relate to the question asked.
 General Objection: General objections do not preserve for review the point the
objector had in mind, but they are useful, especially when the lawyer cannot
find the right words in the heat of the moment. Also, the context might make
the basis for the general objection obvious to the judge.
2. Motions in Limine
a. Literally means “at the threshold”
b. A motion filed to get a ruling in advance of trial, usually to save time or because the
issue is particularly complicated or likely to be contentious.
 Allows for briefing and more elaborate arguments than are possible during
trial.
c. Some judges dislike motions in limine because they do not want to decide an issue not
yet actually presented.
d. FRE 103(a)
 Provides that an objection made in a motion in limine need not be renewed at
trial if the judge definitively ruled on the motion.
 However, the events of the trial can still "open the door" to evidence barred in
a motion in limine.
i. E.g. evidence of past convictions might be initially excluded but
allowed in if the defendant testifies as to his good character
3. Offer of Proof
a. If the trial judge sustains an objection to exclude evidence, proponent may make an
offer of proof in order to preserve the right to an appeal. FRE 103.
b. Purpose of Offers of Proof
 Gives proponent an opportunity to argue in favor of admission of evidence.
 Persuade the judge to reconsider decision to exclude the evidence.
 Necessary to “preserve the record” for an appeal.
i. Without an offer, appellate courts will not be able to determine whether
excluded evidence may have affected the outcome.
c. The offer of proof can even be done in testimonial form. The jury would be dismissed
during this "proffer.”
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G. Consequences of Evidential Error
1. Overview
a. Parties are entitled to a fair trial—not a perfect trial.
b. Virtually all trials have evidentiary errors because the rules are complex and vague.
2. Appraising Evidentiary Error on the Merits
a. To merit reversal, evidence errors must have affected a “substantial right” of the party.
FRE 103.
 The usual standard directs appellate courts to reverse a judgment only for error
which “probably affected” the result.
b. Four Kinds of Errors
 Reversible Error: An error that probably did affect the judgment.
i. Also, the appellant must have taken the necessary steps to preserve his
claim of error (i.e. objection or offer of proof).
 Harmless Error: A mistake that probably did not affect the judgment.
 Plain Error: An error that warrants relief even though the appellant failed to
take the steps to preserve its rights by objection or making an offer of proof.
i. Generally courts insist that error is "plain" only if it in some sense
"obvious" (i.e. the judge should have known better even if the lawyer
did not) and "serious" in the sense of providing greater certainty that
outcome was affected at trial.
ii. Some courts view an error as plain only if the judgment below amounts
to a "miscarriage of justice."
 Constitutional Error in Criminal Cases: A mistake in admitting evidence for
the prosecution that violated the Constitution.
i. Even if there is a constitutional error, the judgment may be affirmed if
the prosecution shows beyond a reasonable doubt that the error was
harmless.
c. Harmless vs. Reversible Error:
 Not only must error be shown to have occurred, the error most be worthy of
reversal for probably having affected the outcome.
 Three Doctrines
i. The Cumulative Evidence Doctrine: Supports affirmance despite errors
both in admitting and in excluding because there was so much other
proper evidence which supported the same points. The question is not
whether the other evidence was sufficient; it is whether the evidence
erroneously admitted probably affected the outcome .
ii. Curative Instruction Doctrine: Curative instructions are usually viewed
as effective.
iii. Overwhelming Evidence Doctrine: If a reviewing court concludes that
evidence properly admitted supports the judgment below
overwhelmingly, it generally affirms, even in the face of errors
admitting or excluding evidence that might otherwise be considered
serious. The opinions seem to suggest that the evidence was such as to
invite a directed verdict.
3. Appellate Deference: The Discretion of the Trial Judge
a. Trial judges’ evidentiary rulings will only be overturned for “abuse of discretion.” See
FRE 403; FRE 611.
 Trial judges have “broad discretion.”
4. Procedural Pitfalls and Adversarial Gambits
a. 3 Types of Behavior often Limit or Entirely Foreclose Review of by Appellate Court:
b. Failing to object or offer of proof:
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
Failing to object waives the right to claim error in admitting evidence, and
failing to offer proof waives the right to claim error in excluding evidence. In
both cases, relief is denied in the absence of "plain error.”
 An objection on one ground suffices only to preserve that particular claim of
error.
 Likewise, an unsuccessful offer of proof resting on a particular ground for
admitting evidence only preserves for review argument on that aground (e.g.
invoking one hearsay exception does not invoke other hearsay exceptions that
may be applicable).
 Also, the objection or offer must precisely refer to the specific evidence in
question.
 If a trial judge sustains an objection or accepts an offer of proof on the wrong
ground (i.e. a ground later shown inapplicable or erroneous), the judge's ruling
will likely be sustained on appeal if some other ground, though unmentioned
below, supports the judge's action.
c. Inviting Error:
 If a lawyer asks a question that produces an otherwise excludable answer, the
lawyer "invited" the otherwise excludable answer.
 Also, a party “invites” error by relying on evidence offering by his opponent
that he might otherwise have excluded by raising an objection.
d. Opening the Door:
 Trial behavior may "open the door" to otherwise excludable evidence.
i. E.g. a defendant claims he has a blemish free past during direct
examination, opening the door for contrary evidence of past
convictions.
5. Interlocutory Appeals
a. Virtually all evidence rulings are cannot be appealed until after the trial.
b. But, interlocutory appeals are available for:
 Some privilege rulings
 Suppression motions that the prosecution loses.
II. Relevance
A. Overview
1. Relevant evidence is generally admissible and irrelevant evidence is not. FRE 402.
a. Relevance is inherently a relational concept; requires context. FRE 401.
2. General Rule
a. FRE 401 states that evidence is relevant if it has any tendency to make the existence of
any consequential fact more or less probable.
3. Direct vs. Circumstantial Evidence
a. "Direct" describes evidence that establishes the point for which it is offered.
b. "Circumstantial" describes evidence that may fail to support the point in question,
simply because an alternate explanation seems as probable or more so.
c. The Rules draw no distinction between direct or circumstantial evidence
B. Logical Relevance
1. Logical relevancy is established under FRE 401 is there is even the slightest probative worth.
2. Old Chief v. United States (I)
a. A party cannot transform relevant evidence into irrelevant evidence merely by
stipulating to it.
C. Random Note: Attempts to Avoid Capture
1. Evidence of efforts to avoid capture is generally admissible.
2. But, evidence of flight does not create a “presumption of guilty” or suffice for conviction
because flight might be motivated by other things.
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3. Courts often suggest that relevancy of flight depends on the reasonableness of the assumption
that the defendant knew he was under investigation and that this inference becomes weaker as
time passes between the crime and the alleged flight.
4. Similar types of evidence to flight include: (1) false identification or aliases; (2) destroyed or
concealed evidence/spoliation; (3) fabricated evidence or perjury; (4) killed, threatened, or
impeded witnesses; (5) sought to escape detention; (6) attempted suicide; (7) sought to bribe
public officials.
D. Pragmatic Relevance
1. Prejudice and Confusion
a. FRE 401 giveth, FRE 403 taketh away.
b. FRE 403
 The court may excluded relevant evidence if its probative value is substantially
outweighed by:
i. Unfair prejudice;
1. Unfair prejudice is an undue tendency to suggest a decision on
an improper basis (i.e. an emotional one).
ii. Confusing the issues;
iii. Misleading the jury; SARCASM, colloquialism
iv. Undue delay;
v. Wasting time; OR
vi. Needlessly presenting cumulative evidence.
 Language favors admissibility.
c. Evidence that serves little use except to inflame the jury is usually not admissible.
State v. Chapple.
d. Old Chief (II)
 In ruling on prejudice, a court should look at the full evidentiary context of the
case and consider existence of evidentiary alternatives.
 A stipulation as to a fact does not make relevant evidence irrelevant, but it does
lessen the need to admit the evidence.
e. Bricks (Mogill’s metaphor)
 Court will be deferential to counsel in providing its version of the story
 Allowed to build wall out of many bricks, one brick at a time.
 If argument is just one brick, better be a strong brick
 One thing to admit evidence, but it also has to convince the jury. So just
because something is admitted does not mean you lose the war.
2. Limited Admissibility—Confining the Impact of Proof
a. Evidence is often good for some purposes but bad for others.
b. FRE 105
 If a judge admits evidence that is admissible against a party or for a certain
purpose but not against another party or for another purpose, the judge must
give limiting instructions to prevent misuse on other issues/against other
parties.
i. Judge must consider effectiveness of limiting instruction, and if
limiting instruction will not be effective, evidence shouldn’t be
admitted in the first place
ii. Relies on ability of jury to follow instructions and listen only to
admissible evidence
3. Completeness—Providing Context
a. FRE 106 allows the adverse party to require introduction of "any other part" of a
written or recorded statement that "ought in fairness" be considered at the same time
as the part already offered
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b. This rule is to provide context so that evidence is not distorted by providing only a
small piece of a larger picture.
c. This “rule of completeness” can apply to non-recorded statements and other sorts of
evidence under the trial court's authority under FRE 401-403 and FRE 611.
d. Some courts allow FRE 106 to trump hearsay and other objections in some
circumstances when necessary to provide context.
4. “The Shortness of Life”
a. FRE 403 allows probative evidence to be excluded for undue delay, wasting time, and
needless presentation of cumulative evidence.
5. The Functions of Judge and Jury
a. Simple Relevance
 FRE 104(a) provides that judge alone decides whether particular point, which a
proffered item of evidence concededly tends to establish or refute, is
consequential under FRE 401.
 Judge must decide whether proffered evidence actually tends to prove point
offered for.
b. Conditional Relevance
 FRE 104(b) provides that when relevance depends on whether fact exists, then
proof must be introduced that is "sufficient to support a finding" that fact does
indeed exist
 Judge serves only a screening function
E. The Relevance of Probabilistic Analysis
1. Statistical Evidence may be used where the proponent demonstrates a foundation of the
appropriate conditional facts needed to support the ultimate fact
2. Types of evidence admissible based on statistics
a. DNA evidence
 Prosecutors can show that genetic profile of deft. matches genetic profile of
apparent culprit
 Such probabilities describe scarcity and do not describe probability that
defendant is guilty, or even probability that he left the sample at the crime
scene
b. Paternity tests
 "Match" between profile of paternal gene in child and genes of deft. is
similarly to DNA
 Expert testifies to the "probability of paternity"
3. People v. Collins
a. Prosecutor arbitrarily made up all of the probabilities
b. No underlying evidence to support probability values
c. Unrelated factors, not independent
d. Misleading/distortion of the facts
e. Eyewitnesses didn't even agree that these are the factors
III. Hearsay
A. What is Hearsay?
1. Definition
a. Hearsay is an out-of-court statement offered to truth the truth of the matter asserted.
FRE 801.
b. Hearsay is inadmissible unless it falls within one of many exceptions. FRE 802.
2. Reasons to Exclude Hearsay:
a. The absence of cross-examination as a truth-testing technique.
b. The declarant cannot be scrutinized in person for the factfinder's credibility
determination.
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c. Absence of the oath.
3. Hearsay Risks which are Substantially Reduced by Live Testimony:
a. Misperception
b. Faulty memory
c. Misstatement, ambiguity, or faulty narration
d. Distortion and outright lying or lack of candor
B. Approaches to Determining Whether Something is Hearsay
1. Three-step analysis for hearsay
a. Is it an out-of-court statement?
 If no, not hearsay, can't be blocked by hearsay.
 If yes, then have to go on
b. Is it for the truth of the matter asserted?
 If no, not hearsay, can't be blocked by hearsay
 If yes, then have to go on
c. Is it a statement intended as an assertion?
 If no, no intent to assert, not hearsay
 If yes, and yes to all three, then it is hearsay, move onto exceptions to hearsay.
2. How to tell if assertion and not performative
a. Nothing is an assertion unless it is intended to be one
b. Steps:
 Preliminary determination if the statement is an assertion
 Moving party is required to prove that it was an assertion
 Burden is placed on the party claiming that the intention existed (opponent),
ambiguous and doubtful cases will be resolved against opposing party in favor
of admissibility (in favor of party trying to get the evidence in)
C. A Closer Look at the Doctrine
1. What is a statement?
a. Assertive Conduct
 Verbal or nonverbal conduct of a person as long as it is intended by the person
as to be an assertion.
i. FRE 801(a).
ii. E.g. nodding, shaking head, shrugging shoulders, pointing.
 Nothing is an assertion unless it is intended to be one.
 When intent is in doubt, resolved in favor of admissibility.
 Evidence of noncompliant, sometimes called “negative hearsay” or “the
sounds of silence” is usually admitted over hearsay objections (126).
b. Indirect Hearsay
 Background info (e.g. name, date of birth, etc.) may technically be hearsay or
may be objectionable for lack of personal knowledge. But, this is all routinely
allowed in to save time.
 United States v. Check
i. Testimony as to one side of conversation between witness and third
party necessarily implicates hearsay by incorporating third party’s
statements into witness’ testimony
c. Machine and Animal Speech
 If information from machines is connected to human input, it may be subject to
a hearsay objection.
 Usually, courts hold that animal responses are not hearsay because they are not
people.
i. E.g. If a dog acts really happen to see its owner, who is a suspect and
the dog was found at the scene of the crime=not hearsay.
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ii. E.g. Drug dogs alerting on drugs is not hearsay.
2. When is a Statement not Hearsay?
a. Under FRE 801, a statement is hearsay when offered “to prove the truth of the matter
asserted.”
 Negative inference is that a statement is not hearsay when offered for any other
purpose
b. Usually statement offered for purposes other than proving what is asserts falls into six
categories:
 Impeachment
i. The truth of the matter is not important, only that the witness said
different things in/out of court.
ii. Limiting instructions are often given that the evidence is only to be
considered for credibility, not the truth of the out-of-court statement.
Obviously, this would rarely be heeded, but FRE 403 objections are
rarely successful.
iii. Statements are being intro’d to show witness’ credibility is weak, can
use police report of initial statement and show how statements have
changed over time, etc.
 Verbal acts (or parts of acts)
i. Verbal acts are words, spoken or written, having independent legal or
logical significant independent of their assertive value.
1. The content/truth doesn’t matter, merely that it was said.
2. E.g. harassment, bribery/extortion, prostitution, threats, eviction
notices, contract/property transfer, operative words for
constructive delivery of property.
3. Independent Legal Significance:
a. Wills, Defamation, Bribes to public officials, a contract
b. Anything going to an element of an offense isn’t being
offered for truth, its being offered as having independent
legal significance
 Effect on listener or reader – do we care if this statement is true?
i. Words that cause hearer or reader to act a certain way.
ii. It doesn’t matter that the words are true; it only matters that they were
said and caused an effect in the listener.
iii. “Look out theres a bird!” not offered to prove there was a bird, offered
to prove I reacted quickly, flailing arms, hitting person
 Verbal markers or objects
i. Markings that differentiate an object from other objects are not hearsay.
ii. Truth of those markings does not matter.
iii. The use of any “inscription, sign, tag or label purporting to have been
affixed in the course of business and indicating origin, ownership, or
control” is self-authenticating and avoids hearsay. FRE 902(7).
 Circumstantial evidence of state of mind
i. The truth of the facts in a statement are not important when the
statement is introduced to show merely that the declarant believed that
those facts were true.
ii. A witness who ran around telling people “I’m the King of England”
and really believed it, statement can introduced to show hes a crazy
person/unreliable witness
 Circumstantial evidence of memory or belief
i. 3 Requirements for Memory or Belief Non-Hearsay
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1. What is described must be unique;
2. Corroborating, independent evidence.
3. Plausible explanation for the experience/memory.
3. Hearsay and Nonhearsay—Borderland of the Doctrine
a. Statements with Performative Aspects
 Difficult cases with “indirect use” of statements.
 In indirect-use cases, the purpose is to use words to get at or suggest something
else. We are after something that seems to be on the speaker’s mind but is not
asserted in the statement.
i. E.g. “My husband treats me with cruelty.” This suggests that she would
not support her husband.
 There is no definitive answer in the Rules or in case law on this issue.
 ACN adds that "Verbal conduct which is assertive but offered as basis for
inferring something other than matter asserted is also excluded from definition
of hearsay by §§(c)"
i. Expresses the truism that a statement offered for a nonhearsay purpose
is not hearsay
 Singer stresses mailing aspect, making it conduct and not the content in the
letter.
i. Mailing an eviction notice is a crucial legal step. It isn’t just “talk,” but
“action” too.
 For phonetapping and even an officer testifying to what callers say, incoming
calls are characterized as "mixed acts and assertions" and are admissible
because of their performance aspects (148).
b. Lying and Statements that are Crimes
 Most courts that consider lying have said it is not hearsay.
 Statements that are themselves crimes are almost always viewed as not hearsay
and recognizes their performative aspects.
c. Statements that are Questions or Commands
 Modern courts generally view questions and commands to be hearsay if they
express or communicate something of consequence.
D. Organization of Hearsay Exemptions and Exceptions
1. Statements by declarants who testify: FRE 801(d)(1) contains three exceptions which are
called "not hearsay" even though they fit the hearsay definitions in Rule 801(a)-(c). In
substance, these are hearsay exceptions, but Mogill calls them “exemptions.
2. Admissions: FRE 801(d)(2) has five “exemptions” which pave the way for statements made
by opponents of the offering party.
3. Unrestricted exceptions: These are 23 exceptions in FRE 803 which apply regardless of
whether the declarant testifies and other conditions.
4. Statements by unavailable declarants: FRE 804 contains five exceptions. These may be
invoked only if the declarant is "unavailable as a witness" under FRE 804(a).
5. Catchall: FRE 807 applies to "reliable" hearsay that does not fit any categorical exception.
E. Hearsay “Exemptions”
1. Why “Exemptions”?
a. FRE 801(d) classifies certain statements that fit within the definition of hearsay as
“not hearsay.”
b. Statements are “not hearsay” only because FRE 801(d)(1) or (2) says they aren’t.
c. Same as exceptions for all practical purposes, but Mogill made the distinction.
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2. FRE 801(d)(1)—Declarant Testifying
a. Prior Inconsistent Statements
 A prior statement by a witness is "not hearsay if three conditions are met (Rule
801(d)(1)(A)):
i. The witness must now be cross-examinable about the prior statement;
ii. The statement must be "inconsistent" with his present testimony; and
iii. It must have been made under oath in a "trial" or "other proceeding" or
"deposition."
 Most courts exclude stationhouse declarations from the definition of “other
proceedings”
i. But, State v. Smith admitted a stationhouse confession where the
complaining victim voluntarily wrote the statement herself, swore to it
under oath with penalty of perjury before a notary, admitted at trial she
had made the statement and gave an inconsistent statement at trial
where she was subject to cross-examination
 “Proceeding” embraces grand jury inquest, so provision enables either party
to offer at trial grand jury testimony of a witness assuming inconsistency and
cross-examinability at trial
i. E.g. If a witness testifies at a preliminary hearing and at trial, giving
different versions of the facts at trial, what he said at the preliminary
hearing may be offered at trial
1. Helps prosecutors deal with "turncoat" witnesses, but helps the
accused less because does not usually call preliminary
witnesses.
 "Inconsistent" does not require statements to be diametrically
opposed/logically incompatible
i. Can be found in evasive answers, silence (can’t cross the
hostile/silent), or changes in positions
ii. Changes in memory can produce "inconsistent" answers
iii. Under Owens, even a witnesses who forgets events can qualify as
"inconsistent"
 The cross-examination requirements means the witness must be able to give
some kind of response. This is a low standard.
b. Prior Consistent Statements
 A prior consistent state is "not hearsay" if 3 conditions are met under FRE
801(d)(1)(B): don’t need oath, at trial, etc.
i. The witness must be cross-examinable at trial about the statement;
ii. It must be consistent with his testimony; and
iii. It must be offered to rebut a charge of recent fabrication or improper
influence or motive or to rehabilitate the witness if attacked on some
other ground.
 Three Issues of Application:
i. What kind of attack? (177)
1. Applies to express and implied charges of fabrication or
improper influence/motive for testifying.
ii. What consistent statements rebut such charges? (178)
1. Consistent statements most occur pre-motive.
a. (i.e. before the motive for allegedly fabricating or lying
occurred).
2. If the consistent statement is post-motive, than it would
similarly be tainted.
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iii. What does consistent mean? (179)
1. Prior consistent statements not intended to be used to add new
information even if it is consistent.
2. But any consistent statement can be used as substantive
evidence if it is admissible to repair credibility.
iv. Opposing party accuses witness of having some specific reason for
testifying & lying, so the party introduces a prior consistent statement
to show they aren’t lying, but the statement must have happened
BEFORE the alleged motive arose
v. If there is no specific alleged motive any consistent statement is OK
c. Prior Statements of Identification
 FRE 801(d)(1)(C) creates what amounts to a hearsay exception for previous
statements of identification, made by a witness after perceiving the subject,
provided that the witness is subject at trial to cross-examination about that
statement.
i. E.g. picking out someone in a photo array or line-up
 A number of courts admit composite sketches under this exception as prior
identification, does not need be done anywhere in particular
 The exception does not require a "second look" at the identified person. The
declarant can identify the person after only seeing or even hearing/smelling
them when the crime/event occurred if they know the person's name and can
connect it to the person's voice or appearance.
 Even if a witness says he cannot remember what the identified person looks
like at trial or has other memory loss problems, but the witness remembers
identifying the person in a line-up or photo array, the cross-examination
requirement of FRE 901(d)(1)(C) is likely satisfied.
3. FRE 801(d)(2)—Admissions by Party Opponent
a. *** Any statement made by an opposing party that is relevant is generally
admissible against them***
b. An opposing parties statements when offered against them are NOT hearsay
c. This is the “anything you say can and will be used against you…”
d. Introduction
 What a party says can be offered against that party.
 By statutory magic, FRE 801(d) defines all admissions as “not hearsay.”
 Hearsay doctrine is designed to protect parties against uncross-examined
statements, but a party can hardly complain that he didn't have a chance to
cross-examine himself
e. Individual Admissions—FRE 801(d)(2)(A)
 Statements made by a party himself are broadly admissible against him.
i. Not required that the party have first=hand knowledge of what he is
admitting.
ii. Must still meet relevancy standard
 Statutes in some states bar apologies from evidence, especially for medical
malpractice cases.
 Statements by drunk and seriously injured persons are usually admissible
against them, but sleeptalk is not.
 Guilty Pleas and Criminal Convictions
i. Ordinarily, a guilty plea or a conviction in a criminal case is admissible
in a later civil case.
12
1. In fact, in some states, they can be binding in later civil
litigation.
ii. But, a nolo contendere plea is not admissible in a civil suit.
iii. Paying a fine, pleading guilty, or being convicted of a minor traffic
violation might be viewed differently and not be admissible in some
civil cases in some states because so little is typically at stake.
 Bruton and Multi-Party Situations
i. A statement by one defendant fits FRE 801(d)(2)(A) when offered
against the person who spoken, but not when offered against a co-party.
ii. When a co-defendant’s confession implicates a criminal defendant, and
the co-defendant does not testify at trial, the admission of the
confession violates the criminal defendant’s rights under the
Confrontation Clause.
1. This applies even when the judge instructs the jury to disregard
the co-defendant’s confession in deciding the criminal
defendant’s guilt.
iii. Bruton endorses the technique of "redacting" a confession by one
defendant to delete any reference to another
1. But, in practice, redaction is usually ineffective because the
redacted content is usually quite clear by implication. See Gray
v. Maryland.
iv. Book recommends instituting two juries, and one is excused when the
person testifies, so Bruton jury wouldn’t hear it, but Evans jury would
1. More resources w/ two juries, but less resources than two trials
f. Adoptive Admissions—FRE 801(d)(2)(B)
 If a witness manifests his adoption or belief in the truth of what another person
says, then that witness becomes the declarant and the statements becomes the
witness's own statement.
i. E.g. Bob tells Susy, "I think your breaks are squeaking." Susy says,
"Yes, I think you're right." Bob's statement is admissible and "not
hearsay" because Susy adopted it as her own.
 The harder cases are when it is not entirely clear from a person's response that
they are adopting the original declarant's statement as their own. These are
cases of "tacit" adoption and might feature silence or ambiguous responses.
 Tacit Admission Doctrine: Silent Response
i. At a minimum, it should be made to appear that:
1. The party heard the statement;
2. The matter asserted was within his knowledge; and
3. The occasion and nature of the statement were such that he
would likely have replied if he did not mean to accept what was
said.
a. This is the key factor. The test is probable human
behavior under the circumstances.
ii. Even if these conditions are met, the statement should be excluded if it
appears that:
1. The party did not understand the statement or its significance;
2. Some physical or psychological factor explains the lack of
reply;
3. The speaker was someone whom the party would likely ignore;
OR
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4. Silence came in response to questioning or comments by law
enforcement during custodial interrogation after Miranda
warnings have been (or should have been) given.
 Doyle (pg. 209)
i. The exercise of one's Miranda rights to remain silent cannot be used to
penalize a defendant to impeach an explanation subsequently offered at
trial or to create a negative inference of guilt
ii. But, if a defendant claims that he told the police the same story postarrest that he is saying at trial and he actually remained silent at trial,
then that can be used for impeachment
iii. Doyle does not apply to pre-arrest silence. Jenkins.
iv. Only applies to official interrogations, things admitted to spouses in
holding cell, or other cell mates, or undercover cell mates are ok
g. Admissions by Speaking Agents—FRE 801(d)(2)(C)
 When a person authorizes an agent actually to speak for him it seems obvious
that what one says may be offered in evidence against the other
i. Technically, what such "speaking agent" says is not even hearsay in
common situation in which his words commit the principal and are
offered to prove the commitment
ii. Words are verbal acts
 Admissions in Prior Judicial Proceedings
i. Pleadings from prior lawsuits are generally admissible against the party
who filed them
ii. So are answers to interrogatories, whether filed in a prior suit or a
pending action
1. But, an “admission” filed in response to requests to admit only
apply to the pending action under FRCP 36(a) and (b).
iii. An expert witness who testifies contrary to a plaintiff’s case in a prior
case cannot be used as an admission by the plaintiff because experts are
not within the party’s control and are supposed to testify impartially.
 MUST PROVE CONNECTION B/N PARTY AND THE AGENT, can’t just
be someone who made a statement and you use that statement to prove they
were an agent, must show party manifested assent or hired them or something,
corroborating evidence of agency
h. Admissions by Employees and Agents—FRE 801(d)(2)(D)
 FRE 801(d)(2)(D) admits against an employer or a principal, a statement by an
"agent or employee" when he speaks "on a matter within the scope of that
relationship while it exists.”
i. This could apply to a CEO or a truck driver.
 Usually, independent contractors are not agents or employees under FRE
801(d)(2)(D).
i. But, sometimes the employer/principal adopts the independent
contract's statement and the adoption exception under FRE
801(d)(2)(B) applies anyway.
 FRE 801(d)(2)(D) only applies to statements by agents or employees that are
"within the scope" of their duties.
i. Even worse if principal acts on the statement provided (Mahlandt & pg.
224)
ii. Can be statement made to internal or external people
 Layered Hearsay
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i. Admissible under FRE 805 if each statement fits an
exception/exemption.
ii. If there is a chain of employee-to-employee hearsay statements, it is
entirely possible that FRE 801(d)(2)(D) allows that to be admitted.
 There is no personal knowledge of truth requirement for admissions.
(Mahlandt v Wild Canid)
 This does not apply to agents of the government being admitted against the
government.(pg. 219)
 Agency does not automatically go both ways. A corporation is not typically an
agent of its employees, but the employees are usually agents of the corporation
(224).
 An admission by an employer cannot usually be used against an employee.
(Mahlandt v Wild Canid)
 Bootstrapping
i. An issues arises as to whether proffered evidence can itself prove the
fact on which its admissibility depends.
ii. FRE 8π01(d)(2)(D) suggests that a statement can be considered on this
point, but additional evidence must be offered too.
i. Conspirator Statements—FRE 801(d)(2)(E) (227-28)
 A coconspirator statement is admissible if:
i. Declarant and defendant conspired ("coventurer" requirement);
ii. The statement was made during the course of the venture ("pendency"
requirement");
iii. In furtherance thereof ("furtherance" requirement).
 A criminal conspiracy charge is not necessary to use this exemption, but it is
common.
i. A person could have even been acquitted of criminal conspiracy
charges and still been subject to this.
 Coconspirator statements are verbal acts (since they have independent legal
significance in forming the conspiracy), but can be admitted for the truth too
under this exemption.
 Four Major Procedural Issues
i. The existence of a conspiracy and the defendant's involvement in it are
preliminary questions of fact that must be resolved by the judge—not
the jury—under Rule 104.
ii. When the preliminary facts relevant to this exception are disputed, the
offering party must prove them by a preponderance of the evidence,
regardless of whether it is a civil or criminal trial.
iii. Bootstrapping is not allowed. The last sentence of Rule 801 suggests
that the statement itself can be considered "but does not by itself
establish" the existence or scope of the conspiratorial relationship.
1. So, at least some amount of independent evidence is necessary
to invoke the conspirator exception.
 This exemption does not reach statements made before or after a conspiracy.

The very fact that co-offenders had such conversations suggests a
conspiracy in action, even without taking any assertions as proof of facts that
they assert.

James Hearing (pg. 232)
i. A hearing where the prosecution must present evidence first to prove
conspiracy and the connection of the defendant with it before admitting
declarations of a coconspirator.
15
F. Hearsay Exceptions—Unrestricted—FRE 803 (pg. 235-236)
1. Turn on considerations of trustworthiness and necessity
2. Introduction
a. Most hearsay exceptions apply regardless of whether the declarant is available as a
witness.
b. FRE 803 has 23 such exceptions to hearsay.
c. Present sensory impressions, excited utterance, and state of mind all derive from the
common law doctrine of res gestae (“things that happened”).
3. Present Sensory Impressions—FRE 803(1)
a. To fit this exception, a statement:
 Must be made “during or immediately after”;
 The speaker “perceived” an event or condition; and
 Must describe or explain the event or condition.
b. Key is immediacy (i.e. lack of time to deliberately lie)
c. No corroboration necessary (usually, New York does require)
4. Excited Utterance Doctrine—FRE 803(2) (239-244)
a. Accidents, violent crimes, child abuse
b. To satisfy the excited utterance exception to hearsay, a party must show three things:
 There must an event startling enough to cause nervous excitement;
 The statement must be made before there is time to contrive or misrepresent;
and
 The statement must be made while the person is under the stress of the
excitement caused by the event.
c. The ultimate question is whether the statement was the result of reflective thought or
whether it was a spontaneous reaction to the exciting event.
d. To determine whether a statement qualifies for this exception, three inquiries must be
answered in the affirmative: (1) whether the event was “startling enough to cause
nervous excitement,” (2) whether the statement was made “before there was time to
contrive or misinterpret,” and (3) whether the declarant was still “under the stress of
the excitement caused by the event.”
 Can be something said to a third party before trial, and third party testifies
(child abuse case)
 Calling 911 can in itself be a factor showing something was startling
e. Some question of whether the hearsay statement is enough or if you need some
independent evidence of an exciting event (253-254)
5. State of Mind—FRE 803(3) (254)
a. The state-of-mind exception has 4 distinct uses to PROVE:
 Then-Existing Physical Condition
i. It doesn’t matter whether the declarant speaks close in time to the
injury or onset of ailment, so long as his words describe how he feels as
he talks (“my shoulder hurt/hurts”)
ii. Can be to a physician, spouse, friend, doesn’t matter
 Then-Existing Mental or Emotional Condition
i. When mental state of a party is an issue, the exception paves the way
for his own out-of-court statement
1. The exception is also available for the mental state of nonparties
ii. The exception reaches only statements of present mental state
1. What I say on Wednesday re: mental state on Monday no good,
unless its so persistent it sheds light on present state, past
Monday, upcoming Friday
16

2. But, if a mental state persists over time, mental state may also
apply over time.
iii. Pg. 273 – 4-L –
1. “im afraid Donald is going to kill me”, her fear is admissible as
then state of mind, but not what Donald is going to do, can not
get at 3rd parties INTENTIONS
2. Speaks to her intentions, but may not be relevant because it
doesn’t show why she was going to stay with her mother, can’t
say that’s because of what husband was doing.
a. Implication that she called mother in past is OK,
because not a definitive statement of doing that
3. It’s ok because it’s not a statement, didn’t intend to assert
anything, so not even hearsay, no exception needed
a. Performative act of seeking shelter, not communicating
anything about the relationship
iv. Fact-Laden Statements - (pg. 257) FRE 803(3) covers a statement of
"then-existing state of mind," but not a statement of "memory or belief
to prove the fact remembered or believed" (except in wills cases).
1. “its too cold to go out” can’t be used to prove it is cold, but can
be used to show speaker probably wasn’t planning a picnic
a. If temperature is a critical factor, may not be ok b/c
jury won’t easily separate the two
2. Notes on this on page 259, especially about if it’s a statement
that shows fear before a murder
Subsequent Conduct (extra notes page 269-270)
i. FRE 803(3) permits the use of a person’s words to prove intent
1. Person's statement of intent to go on a trip/do something is
admissible under FRE 803(3) to prove intent, including what
was done thereafter (or not)
ii. Statement either a) infers or b) asserts intent to do something AND it is
offered to support INFERENCE that declarant in fact did "something"
iii. FRE 803(3) does not permit backwards looking statements (261-62)
1. Statements may be broken apart to determine which portions are
backwards looking
2. OK if past is a part of what’s happening in the future, but the
more you try to use statement to prove past incidents, more
likely it will be blocked.
iv. Hillmon
1. ACN: “The rule of Hillmon, allowing evidence of intention as
tending to prove the doing of the act intended is, of course, left
undisturbed”
2. But, House Commentary - Committee "intends Rule be
construed to limit doctrine of Hillmon so as to render statements
of intent by a declarant admissible only to prove his future
conduct, not the future conduct of another person"
3. Problem with H is not inference that “person with whom I
intend to travel is H” to prove Walters believed he was traveling
with H, but rather inference that he was IN FACT travelling
with Hillmon.
v. Pheaster
1. The Hillmon doctrine does not require that state of mind be at
issue; rather, the state of mind is used inferentially to prove
17
other matters at issue. When the performance of a particular act
by an individual is an issue in a case, his intention (state of
mind) to perform that act may be shown. From that intention,
the trier of fact may infer that the person carried out his
intention and performed the act.
2. Most post-Pheaster cases say state-of-mind statement can prove
a later meeting between the speaker and another if there is
additional evidence of such a meeting. (271)
 Facts About Declarant's Will (275)
i. FRE 803(3) creates what might be treated as a separate exception for
statements about declarant's will
1. Admission makes sense because Speaker was likely wellinformed on subject of his own will, is likely dead (creating
need of evidence of what he said), and his views on this subject
may be a trustworthy as live testimony by interested parties
disputing estate
6. Statements for Medical Treatment (276-77)
a. This exception exists because it is assumed that one will be careful and accurate in
describing his symptoms to his doctor and what he thinks caused them.
b. Not just physicians, statements to ambulance drivers, hospital workers, even family
members
c. Three Requirements of the Exception:
 The purpose of the speaker is to obtain medical diagnosis or treatment;
 The statement must be "reasonably pertinent" to the end of medical
diagnosis or treatment; and
 The exception reaches accounts of "past" and "recent" symptoms and
sensations, as well as “medical history” and accounts of the "inception" or
"general cause" of symptoms or sensations.
i. Generally cannot include a “where” statement for injury though “I fell”
is good, “I fell on the restaurants stairs” no good
d. This exception is not limited to statements to a doctor by the patient.
 It also may admit statements by parents, Good Samaritans, and others if the
purpose of the speaker is to receive medical treatment or diagnosis for the
injured person.
i. key to admitting statements by Good Samaritan is purpose of speaker
and relationship to patient; parent’s statement on behalf of child patient
fits exception.
e. This exception does not usually apply to statements of fault or identity.
 But, situations involving physical or sexual abuse of children are unique
circumstances that allow medical professions to testify to the child victim's
statements.
i. Must lay a “proper foundation” showing statement was made to
promote treatment & a medical pro would reasonably rely on that info
to provide proper treatment (State v Blake 278)
1.
We conclude that the State laid the proper foundation and that the elements of
the Renville two-part test were satisfied. The victim was examined by Dr. Bowers as a
result of an investigation into allegations that she had been sexually abused. Dr.
Bowers testified that in a rape kit examination, she takes a history from the patient
about what has happened so as to properly collect specimens and provide appropriate
medical care. The doctor also described the importance of understanding a victim’s
emotional state in a sexual assault case. The victim’s statements were consistent with
the purposes for which Dr. Bowers became involved with the victim, that is, to perform
tests and treat the victim as necessary. Dr. Bowers’ testimony indicates that she relied
on the victim’s account of the circumstances surrounding the sexual assault, including
the abuser’s identity, to determine how to properly treat the victim.
18

It’s ok because identifying the abuser IS part of the medical treatment because
its important the person not be put back into custody of that abuser, etc. It’s
important not to return to the harmful person/place
Problem 4-M (276)
1) OK, ambulance drivers fine, clearly a statement to medical professional for treatment
2) Partially ok, “I fell on the stairs” is fine but “on the stairs of the restaurant” is not OK
3) Type of fall is very important (stairs vs sidewalk), but the location on the sidewalk won’t
be let in (unless she managed to get in that she tripped on the stairs, then location is open)
7. Past Recollection Recorded—FRE 803(5) (285-7)
a. When a witness fails to remember critical points has written down what he knew and
the proponent is unable to refresh the witness’ recollection using the written down
statement, the proponent must try to get the written statement itself into evidence
b. In order for a written statement to be admissible, the proponent must demonstrate that:
 The witness lacks present recollection of the matter;
 The statement accurately reflects knowledge he once had;
 He "made or adopted" the statement; AND
 He did so while the matter was "fresh" in his mind
i. No clear rule of thumb, can even be years afterward
c. If admitted, the memorandum or record may be read into evidence but may not itself
be received by the factfinder unless offered by an adverse party
d. Ohio v Scott
 in the “past recollection recorded” situation, the witness’ present recollection is still absent or incomplete,
but his present testimony is to the effect that his recollection was complete at the time the memorandum
was written and that such recollection was accurately recorded therein. a witness who has made such
a statement may be cross-examined on his honesty and integrity and ability to observe
accurately. While he cannot be examined so well on his memory, it is “unnecessary” to do that because

“he has already stated that he has no independent recollection of the event, which is all that could be
brought out” on cross if he testified from present recollection. (288)
th
Is this a violation of 6 amendment right to confront?
i. No Con provision exists preventing use of statements of past
recollection in crim cases
 Accuracy requirement? Some witnesses don’t remember the events/statement,
but say they wouldn’t have signed something if it wasn’t true
e. Third party statements where someone else writes it down (pg. 290)
 Agent must verify the accuracy of writing, and observer must testify that
they communicated accurately
f. No real guidance on time requirement for “fresh memory” – 3 years once
8. Business Records—FRE803(6) (292)
a. This exception has astonishing breadth.
b. Four Elements of the Business Records Exception:
 Regularly kept record as part of regular business: This is broad enough to
include an individual who is in business by himself. It also considers records of
illegal activities such as drug dealing. And, records of charities, churches, etc.
 Personal Knowledge of Source: The source of the information must be
someone with personal knowledge, but that person need not be the one who
made the entry. Thus, multiple hearsay with exceptions is okay. (292)
 Contemporaneity: The information must be recorded or at least gather close
to the time of the event.
 Foundation testimony: Foundation must be established either by the
"custodian" of the record or other "qualified witness" or a certification by such
19
a person, meaning an affidavit. The foundation witness need not be the author
of the statement; the witness need only have firsthand knowledge of the system
who can describe the usual means of preparation.
i. Trustworthiness clause – record satisfying four above criteria fits
exception UNLESS opponent can prove the sources/methods of
preparation are not trustworthy Look to 803(8)(b) below
c. Medical opinions & diagnoses only, no info provided by patient that was written
down (quimbee Petrocelli v Gallison)
d. Accident Reports
 Palmer held that accident reports and investigations are not in the regular
activity of doing business of most companies, such as railroads, so they do not
fall under this exception.
i. Who prepared report? Someone at fault? No good.
 But, as in Norcon, courts do still admit accident reports sometimes.
 Report can’t be made in anticipation of litigation
9. Public Records—FRE 803(8)
a. Records, reports, statements, or data compilations, in any form, of public offices or
agencies, setting forth: (pg. 305)
 The activities of the office or agency OR
i. Mundane docs. Showing daily activities
 Matters observed pursuant to duty imposed by law, OR
 In civil actions and against the Government in criminal case, factual findings
resulting from an investigation made pursuant to authority granted by law
 Opponent unable to show a lack of trustworthiness
b. The advisory committee notes accept “evaluative reports” as being within the meaning
of factual findings under FRE 803(8)(B)
c. When a report is made for the government to use against a defendant in a criminal
proceeding, under the language of the rule a factual finding cannot be used
 If evidence excluded under 803(8) then excluded under ALL the rules
d. FRE 803(8)(B) factors affecting the assessment of trustworthiness
 Timeliness of the investigation
 Special skill or experience of the official
 Whether a hearing was held (not important if officer is unbiased UTC)
 Possible motivational problems
i. On opposing/objecting party to show why lacks trustworthiness
ii. Look to manner and methodology of investigation, not credibility of
sources
e. In Civil Cases:
 A police officer’s assessment of fault in a police report is admissible under the public
record exception in FRE 803(8)(C) as a factual finding in an investigation authorized
by law if the sources of information or other circumstances do not indicate a lack of
trustworthiness.
f. Use in Criminal Cases
 Government reports don’t get in under 803(8), it IS hearsay but with
expert testimony the report can get in if the underlying evidence
adequately explains experts witness, and a limiting instruction is given to
jury saying “this is not admissible as evidence, but it is permissible for
expert to rely on, so don’t take it for truth, but as basis of what expert is
testifying to” 703, and then confrontation clause issues, person who
prepared, or supervised, meets the confrontation clause,
20
i. If court gives instruction to not take it for truth, but as basis for
report, does that require confrontation clause issues? Maybe
ii. Confrontation only occurs when offered for its truth? Maybe
1. Debate on if expert is actually testifying to the truth of
report or if its just the basis
2. Crawford – not offered for truth, then its not testimonial,
thus no confrontation issue
Prosecutors
in
criminal
cases have often invoked FRE 803(8) as a means of

getting in forensic evidence in the form of autopsy reports, blood tests, etc.
 Supreme Court however in Melendz-Diaz held lab reports, prepared by public
forensic laboratory, are testimonial (private labs hired by state to aid law
enforcement acting in effect as agents of state) for purposes of Confrontation
Clause
 Technicians working for government crime laboratories counts as law
enforcement personnel, so their reports cannot be admitted under 803(8)(B),
and also crime lab reports might also qualify as "factual findings" that are
inadmissible against the accused under the restrictions of 803(8)(C)
i. Also, and most importantly, the use restrictions in 803(8) are different
from the limitations found in other hearsay exceptions, as in substance
they are exclusionary rules, so that material covered by them may not
be admitted under other hearsay exceptions
 Melendz-Diaz (pg 315) does NOT mean that the prosecutor cannot use lab
reports, they simply must have the analyst come in and testify at trial
i. Notice-and-demand statutes
1. Require prosecutor to notify defense of intent to offer crime lab
report, allowing defense to demand prosecutor produce preparer
ii. Objection statutes
1. Requires prosecutors to give notice, and permits defense to
object to the use of lab reports, which leads to a hearing on
admissibility
iii. Subpoena statute
1. Allows defense to subpoena the preparer.
2. Unconstitutional because it shifts the burden of proof to the
defendant.
iv. "Routine and nonadversarial" reports
1. Some police reports are admissible against defendants,
based on idea that they are not really part of an attempt to
prepare charges or make evidence against any particular
defendant (non-testimonial) Problem 4-N pg. 320 – cop is
just investigating noise complaint, not the robbery, so it
wasn’t investigative/adversarial against these defendants
(way to get around 803(8)) JUDICIALLY CREATED
EXCEPTION B/C OF CONFRONTATION CLAUSE
CONCERNS – nonadversarial = not blocked
v. However, Bullcoming case says that person testifying must be person
involved in making report, not someone who was just familiar with
what went into the reports (IE the process behind report). No surrogate
testimony. But can be lab/report supervisor
10. Learned Treatises—FRE 803(18) – PA does not recognize this as exception** maybe fun to point out
a. In order to bring in a learned treatise under FRE 803(18), a proponent must show:
 It was called to attention of expert on cross-exam OR relied upon by expert on
direct, AND
21

The publication is established as a reliable authority either by experts
admission/testimony, by another experts testimony (D calls), or by judicial
notice
i. It must a Treatise, periodical or pamphlet AND
ii. Subject of history, medicine or other science or art AND
iii. Established as reliable authority
 Statements admitted under exception may be read into evidence, not received
as exhibit
 Play with 106? Yes, because party offering part of report opens door to
complete record anyway, so not an issue
11. Miscellaneous Others
a. FRE 803(14) creates an exception for records of documents affecting property
interests.
b. FRE 802(23) creates an except for judgments on matters of personal, family, or
general history, or boundaries.
c. Ancient Documents* [FRE 803(16)]: Exception for statements in documents at least
20 years old (now pre-1/1/1998) and who authenticity is est. under FRE 901(b)(8).
 Anything Past 1/1/1998 deal w/ as record under 803(6)
d. Market reports, commercial lists* [FRE 803(17)]: This essentially allows the
admission of price lists published in catalogues, stock market quotations appearing in
newspapers, mortality and morbidity tables used in the insurance industry, and city
directories.
e. Felony Convictions* [FRE 803(22)]: (pg. 210 rule book) Felony convictions (i.e.
crimes punishable by more than a year) can be admitted if it proves "any fact essential
to the judgment.” (D in present case must have been a D in previous case, limitation)
f. Absence of record: Proof of the absence of entries in business and public records is
admissible under FRE 803(7) and (10). Important in deportation case and gun permit
cases. – prove someone doesn’t have a gun permit, special permission to be here, etc.
g. Birth, marriage, death: FRE 803(9), FRE 803(11), and FRE 803(13) allow various
forms of family records, etc. (324)
h. Real Property: FRE 803(14), (15), (20).
i. Reputation Evidence:* (pg. 327) FRE 803(19-21) covers reputation of person within
his family concerning birth, marriage, death, & relationship by blood and marriage.
FRE 803(21) authorizes proof of reputation with the "community" as to “character.”
G. Declarant Unavailable Exceptions—FRE 804
1. Overview
a. The five exceptions in FRE 804 require the proponent shows that the declarant is
unavailable as witness and that the statement fits one of the five exceptions.
2. Unavailability Requirement
a. A witness is unavailable if his testimony is unobtainable, even if they are in court but
cannot remember, refuse to testify, or claim a privilege.
b. The judge determines whether the declarant is available; it is a FRE 104(a) issue.
c. Claim of Privilege-FRE 804(a)(1)
 There must be a claim of privilege and the court must sustain it.
 But, if one defendant wants to offer a statement by another as a declaration
against interest, for example, declarant's privilege against self-incrimination
entitles him not even to be called as a witness. He can be viewed as
unavailable under FRE 804(a)(1) without being called to the stand for a ruling.
d. Refusal to Testify-FRE 804(a)(2) (pg329)
 Requires actual refusal on the stand after being order to respond.
 This contemplates a threat of contempt.
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e. Lack of Memory-FRE 804(a)(3)
 A declarant who testifies that he does not remember the "subject matter" of his
statement is unavailable under FRE 804(a)(3).
 Weird paradox with FRE 801(d)(1)(A) because someone can be both "subject
to cross-examination" and "unavailable" at the same time.
f. Death, illness, infirmity-FRE 8049(a)(4)
 Death is easy to tell, but illness might not be.
 Great deference is granted to a trial judge in this regard.
 Many states provide for certain psychological unavailability’s, especially in the
case of child abuse victims. Too scared/embarrassed to testify, so can do so
recorded from another room
g. Unavoidable Absence-FRE 804(a)(5)
 Unavailable if cannot be made present at trial by subpoena or other reasonable
means.
 In civil trials, state subpoena power often only extends to that state. In federal
civil trails, it is the district plus 100 miles. In criminal trials, it usually applies
in the whole country.
 Even if beyond the reach of subpoena, the witness must be tried to be invited
and, if the government, have their travel expenses paid for.
 A question may arise as to whether the party has tried hard enough to find a
witness.
 But, FRE 804(a)(5) indicates that for FRE 804(b)(2)-(4) puts pressure on
parties to obtain deposition testimony by a declarant who might be unavailable
at trial because a declarant is unavailable only if her attendance at trial "or
[her] testimony" cannot be obtained. Deposition counts as testimony.
h. Procurement of Absence Thru Wrongdoing: (pg. 331)
 Last sentence of FRE 804(a) ensures that a party cannot benefit from causing
the absence of the declarant.
i. “wrongfully caused” – playing any part in enabling person to disappear
1. Take passport or something!
 Choosing to grant or not grant "use immunity" by the prosecution is not
viewed as procurement of testimony or not.
 Governments options in releasing a witness are not “detain or send back
home”, there are options that are more reasonable (336-337)
3. The Former Testimony Exception—FRE804(b)(1) (pg. 337)
a. Hearsay is admissible if:
 Testimony was given as a witness
 At a hearing or deposition in the same proceeding (non-judicial OK)
i. Person who testified in 1st trial dies before re-trial
ii. Main restriction is opportunity to cross
 If opponent or predecessor in interest had opportunity to and similar motive to
cross-examine (Lloyd erroneously ignored opportunity requirement) (pg. 343)
i. Predecessor in Interest is only applicable to civil cases
ii. Predecessor in Interest Tests
1. One test: sufficient community of interest
2. Other test: Privity test
iii. Crim – must be same prosecutor who did cross (338)
b. Main limit is cross-examination requirement
 Suffices under the rule that the party against whom the testimony is offered
had "an opportunity and similar motive" to cross-examine
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i. Naked incentive to cross not enough, must be reason they would cross
on the matter at issue in THIS trial (338)
 Objecting party argues differences between prior and present proceedings
show that on earlier occasion there was less reason to go after the witness
i. Pretty tough (338 bottom)
4. Dying Declarations—FRE 804(b)(2) – bring up excited utterance or state of mind if they are
alt/better way (“john shot me!”), (“I’m scared, John shot me.” But only for state of mind, not truth)
a.
In order to show dying declaration, a proponent must show:
 Prosecution for a homicide or civil proceeding
i. ANY civil proceeding, but just homicide for criminal
 A statement made by declarant while believing that death was imminent
 Concerning the ID of assailant or cause/circumstances/description of accident
or what the declarant believed to be impending death
i. Prob. Also embraces descriptions of prior threats, quarrels, physical
pain/sensation, anything inhaled/injected/ingested
b. The question of whether the death was imminent is often an issue. (pg. 348-49)
 "Fear or even belief that illness will end in death will not avail of itself to
making a dying declaration. There must be a 'settled hopeless expectation'
that death is near at hand, and what is said must have been spoken in the hush
of its impending presence.
 The declarant's state of mind is decisive and must be exhibited in the evidence
(349 Cardozo).
 "The patient must have spoken with the consciousness of a swift and certain
doom.”
c. The question of whether death was imminent goes to the judge under FRE 104(a).
 Question of admissibility, not relevance (also not question of truth for jury)
5. Declarations Against Interest—FRE 804(b)(3) (pg. 350)
a. General Considerations
 Declarations against interest are trustworthy because a person is unlikely to
state facts (or make statements) harming own interest unless true.
 The statement must be examined in context to determine if it is actually against
the declarant’s interest
b. Civil Cases – traditionally for financial or proprietary interests
 If A says “I owe B $1,000” he is conceding a debt, admissible to prove A owes
B that sum, exception is particularly useful if A has died
 If A says “B paid be $1,000” he is conceding the reduction of debt, can also be
a written receipt
 If SoL allows suit, & payment proves the date it was paid, it is against interest,
but if SoL has tolled, statement then becomes self-serving, proving date of SoL
beginning to toll
 Factors to Consider
i. Context – A owes $4k, but statement of “I owe $1k” calculated attempt
to lower debt, no good
ii. Conflicting Interest – must determine if complex, conflicting interests
cancel each other, or if statement was predominantly self-serving
iii. One-way Interest – tax stuff, dead persons tax returns offered to show
they made at least as much as is claimed, bc a person wouldn’t claim
more, etc. (pg 351)
iv. Circumstantially Adverse Facts – employee admitting to breaking
rules which caused accident in insurance suit (jeopardizes their
employment, opens to liability, etc.)
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v. Declarants Understanding – declarant must understand that statement
is against their interest at the time its made
c. Criminal Cases – Statements Implicating the Accused – BLAME SHIFTING
 Williamson holds FRE 804(b)(3) does not reach associated/ “collateral”
statements; statement must itself be against interest to fit exception
i. Take a look at everything said outside of court, examine bit by bit
ii. What parts are against interests and what parts are not
 "The question under FRE 804(b)(3) is always whether the statement was
sufficiently against the declarant's penal interest 'that a reasonable person in the
declarant's position would not have made the statement unless believing it to
be true,' and this question can only be answered in light of all the surrounding
circumstances." – Scalia
 Testimonial for purposes of Crawford, largely eclipses Williamson
i. Case remains important because of the way it interprets the againstinterest exception
 A statement cannot be against interest when the declarant is trying to shift
blame or curry favor with the police
d. Criminal Cases—Statements Exonerating the Accused
 Some courts hold that statements exculpating the defendant fit the againstinterest exception if, when considered in the light of surrounding
circumstances, they subject the declarant to criminal liability or if, as a related
part of a self-inculpatory statement, they strengthen or bolster the
incriminatory effect of the declarant's exposure to criminal liability.
 Other courts exclude these more rigidly.
 If a third-party confesses to committing the deed, making no reference to the
defendant the exception easily applies.
 Courts are suspicious of post-conviction statements that exculpate a codefendant or friend
e. Corroboration Requirement
 This exception requires corroboration for against-interest statements offered to
implicate or exonerate the accused.
 But, corroboration is construed broadly and is easily satisfied.
 Circumstantial evidence of trustworthiness of the statement is enough.
H. Catchall/Residual Exception
1. Catchall is to be “sparingly invoked”, only used when no other exception can apply
2. A statement offered under FRE 807 must have equivalent circumstantial evidence of
trustworthiness as FRE 803 and 804
a. FRE 807(A) requires that the statement be relevant.
b. FRE 807(B) requires that statement is best available (most probative) evidence to
prove the point. This is the best we’ve got.
c. FRE 807(C) requires that the purposes of the Rules and the interests of justice will be
served by admission of the statement into evidence. Altruism.
3. A statement cannot be used under FRE 807 unless the proponent gives the opponent sufficient
notice to allow a fair opportunity to meet it. (same as w/ child abuse stuff below)
4. FRE 807 will only be applied in exceptional circumstances “very rarely” last gasp
a. How close is the evidence to fitting an enumerated exception?
b. How consistently has it been repeated?
c. How critical is the evidence? KEEP THINKING OF HARMLESS ERROR
d. Has the declarant revealed the information in some way that appears spontaneous?
e. Is there a strong motive to be accurate in the statement?
f. Timeliness of the statement
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g. Testing or verification of the evidence
h. Solemnity of the occasion (e.g. oath?)
i. Corroboration
j. Credibility of the witness reporting the statement
k. Availability of the declarant for cross-examination.
5. Child Abuse Prosecutions (pg. 381)
a. Many exceptions are stretched/expanded in child abuse cases.
 E.g. excited utterance, medical statement forfeiture provision under FRE
805(b)(6), and the Catchall.
b. In applying the catchall hearsay exception to statements by abused children, courts
have developed lists of factors that bear on trustworthiness, including:
 unusual/precocious knowledge & age-appropriate language
i. supposes child can’t make statement of sort b/c its unlikely speaker
could say these things w/out experiencing them, and is more believable
if child uses age-appropriate words
 behavioral changes, general demeanor (fearfulness, restroom regression, sleep
disturbances, NEW problems at school, etc.)
 particular indications of pain or emotional distress,
 spontaneity
 the presence or absence of bias or other motives
 the training and techniques of people who talked to the child
 the consistency of the basis story, & the character of the child
 Reliability of the person to whom the statement was made
 If child unavailable to testify, must be corroborating evidence
 AND, proponent must give good notice to other team so they can “meet it”
I. Hearsay within Hearsay—FRE 805
1. Hearsay included within hearsay is not excluded under hearsay rule if each part of combined
statements conforms with exception to hearsay rule provided in these rules
a. i.e. if hearsay statement complies with all hearsay rules, admissible
IV. Confrontation Clause – pg.383
A. The Impact of the Confrontation Clause
1. The Confrontation Clause has long been understood as blocking the use against the accused of
some out-of-court statements, even if they fit a hearsay exception
2. At the heart of confrontation is the right to cross-examine, which is diminished or denied
when the prosecution uses such statements
3. Confrontation Clause constrains only prosecutors & only applies in criminal proceedings, as
opposed to hearsay doctrine which controls both parties in both civil and criminal proceedings
a. Even if hearsay exception requirements met, Confrontation Clause might block.
b. Or even if meets requirements of Confrontation Clause, might be blocked by hearsay
exception
B. Roberts—Old Law – pg. 386
1. The prosecution must either produce or demonstrate the unavailability of the declarant whose
statement it wishes to use against the defendant.
2. The Confrontation Clause allows only hearsay marked with such trustworthiness that there is
no material departure from the reason of the general rule. There must “indicia of reliability”
for this hearsay offered against the accused. This indicia of reliability is satisfied by certain
hearsay exceptions that rest upon such solid foundations that admission of virtually any
evidence within them comports with the substance of the confrontation Clause.
3. + if using residual exception/catchall, must also have corroborative evidence (guarantee of
trustworthiness)
C. Crawford and “Testimonial Hearsay—Overruled Roberts – Case – 389, Notes, 399-400
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1. Rule
a. The Confrontation Clause applies only to testimonial statements.
 Where non-testimonial statements are involved, the Confrontation Clause
allows a court to use its discretion to determine the reliability of the statements.
b. Where testimonial evidence is presented by someone other than the declarant, the
evidence does not violate the Confrontation clause if:
 The declarant is unavailable; and
 There was a prior opportunity to cross-examine.
c. When the declarant appears for cross-examination at trial, the Confrontation Clause
places no constraints at all on the use of his prior testimonial statements.
d. The Confrontation Clause also does not bar the use of testimonial statements for
purposes other than establishing the truth of the matter asserted.
2. Scalia
a. What does “witness against” mean in Confrontation clause, dictionary says someone
who “bears testimony”, thus testimonial.
 Ex parte testimony, affidavits, custodial examinations, prior testimony that D
was unable to cross, declarants who could reasonably expect their statement
could be used by a prosecutor
 Exceptions like dying declarations, conspiratorial statements, business records
are not testimonial, no expectation of trial use
b. right to confrontation can be waived by D wrongdoing, threatening witness to not
testify, etc.
3. What is “testimonial” evidence?
a. "Testimony" is some sort of formal statement or “solemn declaration” made for the
purpose of establishing or proving some fact.
 Not just a casual remark to an acquaintance.
b. The functional equivalent of in-court testimony is “testimonial,” as are affidavits,
depositions, prior testimony, confessions, statements during police interrogations, or
statements that were made under circumstances which would lead an objective witness
reasonably to believe that the statement would be available for use at a later trial.
4. Specific applications of “Testimonial” in Subsequent Cases
a. A statement made knowingly to the authorities that describes criminal activity is
almost always testimonial.
b. A statement made by a victim of a crime and describing the crime is usually
testimonial, whether made to the authorities or not.
c. If a statement is made before a crime is committed, it almost certainly is not
testimonial.
 A statement made in the course of going about one's ordinary business, made
before the criminal act had occurred or with no recognition that it realities to
criminal activity is not testimonial.
d. Courts are to look at the state of mind of both the declarant and the police to determine
whether a reasonable person in the speaker's position would expect the statement to o
be used in investigating or prosecuting a crime. Michigan v. Bryant, 131 S. Ct. 1143
(2011).
e. Private statements among non-law enforcement officers, such as friends or
acquaintances, are not testimonial.
f. "Statements in furtherance of a conspiracy" are nontestimonial. FRE 801(d)(2)(E).
g. Dying declarations can be admitted even if they are testimonial.
h. The forfeiture-by-misconduct provision in FRE 804(b)(6) still applies, even if it is
testimonial hearsay.
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i. Child Abuse Victims (pg. 419-420) – kids don’t generally think what they say could
be used in court
 When children talk to family members and caregivers, these statements are
usually not testimonial.
 Children's statements to teachers are usually not testimonial. See Ohio v. Clark,
135 S. Ct. 2173 (June 18, 2015)
 Despite being mandatory reporters, children's statements to doctors, nurses,
and hospital staff are usually not testimonial.
 But, children's statements to police or social service personnel usually are
testimonial.
D. The Emergency Doctrine—Davis and Bryant (pg. 404)
1. Statements are nontestimonial when made in the course of police interrogation under
circumstances objectively indicating that the primary purpose of the interrogation is to enable
police assistance to meet an ongoing emergency.
a. E.g. most 911 calls during emergencies.
2. In contrast, they are testimonial when the circumstances objectively indicate that there is no
such ongoing emergency, and that the primary purpose of the interrogation is to establish or
prove past events potentially relevant to later criminal prosecution.
a. E.g. investigations after an immediate emergency has passed.
3. Bryant
a. Invites consideration of “standard rules of hearsay” that treat some statements as
reliable.
 Scalia hates this; says it goes back to Roberts.
b. Appears to view an emergency as only one “primary purpose” that puts a statement
outside of the testimonial category.
 There may “other circumstances” where out-of-court statements are
nontestimonial because the primary purpose was not to create a substitute for
testimony.
i. The court didn’t identify these.
ii. But, scholars speculate that the purpose of obtaining medical care or
guarding against risk to public health or safety would qualify.
E. Protected-Witness Testimony
1. These cases mostly involve child abuse victims.
2. SCOTUS disapproved of a screen that blocked child-abuse victims during trial testimony
because the Confrontation Clause guarantees defendant a “face-to-face meeting with
witnesses.” Coy v. Iowa, 487 U.S. 1012 (1988).
3. But, a child may be allowed to testify in another room via video with the attorneys in the other
room on a case-by-case basis if necessity is shown. Courts must determine ahead of time that
testifying in front of the defendant would cause the child trauma. Maryland v. Craig, 497 U.S.
805 (1998).
V. Relevance Revisited - (pg. 421)
A. Character Evidence
1. Relevancy and Form
a. Character evidence cannot be used “to prove that on a particular occasion the person
acted in accordance with the character or trait.” FRE 404(a)(1).
b. But, FRE 404(a)(2) allows the defense in a criminal case to prove “a pertinent trait” of
the defendant and, if such proof comes in, the prosecutor can “offer evidence to rebut
it.”
 Defendant can offer evidence of an alleged victim's trait, but that can be
rebutted and the prosecution can admit evidence on the defendant's same trait.
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
In a homicide case, the prosecution may offer advice of a victim's trait of
peacefulness to rebut evidence that the victim was the first aggressor.
c. No exceptions in civil cases, which means that character cannot be used to prove
conduct in that setting.
d. Also, “specific instances” of conduct can be used to show things like "motive" or
intent" or “plan.”
2. Character to Prove Conduct on a Particular Occasion (pg. 423)
a. Under FRE 404, general rule is character evidence is not admissible to show action in
conformity with character.
b. Rule sets out four exceptions, first three only apply in criminal cases.
 Character of Accused (FRE 404(a)(1))
i. In a criminal case
ii. Evidence of a pertinent trait of character offered by accused OR
iii. Offered by the prosecution to rebut the same character trait OR
iv. If evidence of character of alleged victim admitted under FRE
404(a)(2), evidence of the same trait of character of the accused offered
by prosecution
 Character of Alleged Victim (FRE 404(a)(2))
i. In a criminal case, and subject to limitations of FRE 412
ii. Evidence of pertinent character trait of alleged victim of crime offered
by accused OR
iii. By the prosecution to rebut the same OR
iv. Evidence of character trait of peacefulness of alleged victim offered by
prosecution in a homicide case to rebut [any] evidence that alleged
victim was first aggressor
 Character of Witness (FRE 404(a)(3))
i. Evidence of the character of a witness, as provided in rules 607, 608,
and 609
c. Once decision is made that character evidence is admissible, FRE 405 governs
method by which character may be proved (pg. 425-26)
 In ALL cases in which evidence of character or a trait of character of a person
is admissible, proof may be made by:
i. Describing acts indicating existence of the trait, OR
1. Can still only rebut with opinion/reputation, not acts?
ii. Testimony of persons opinion that person has trait, OR
iii. Description of reputation in community
 Anything other than three types of evidence of character considered extrinsic,
not admissible
d. Character evidence offered to prove behavior in specific instance, is never admissible
in civil cases.
3. Character as san Element of a Charge, Claim, or Defense—FRE 405(b)
a. When a person’s character or trait is an essential element of a charge, claim, or
defense, the character or trait may be proved by relevant specific instances of the
person’s conduct.
b. Character is very rarely an “element” of a criminal charge or defense.
 ACN’s example is chastity of a victim for the crime of seduction.
c. In civil litigation, four common situation where character is an ultimate issue: (434)
 Defamation suits where truth is raised as a defense. Proof of the defense of
truth would likely come in the form of evidence that the alleged defamation is
true due to particular events or even an opinion or reputation that the plaintiff
is a certain way.
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
Negligent Entrustment: clearly specific instances of prior negligence of the
person who the equipment is entrusted to is necessary to show that the person
has a disposition for being careless.
 Child Custody: Character in the sense of being a good parent is the ultimate
issue, weighs parental fitness in interest of child
 Wrongful Death: Character evidence may be used to determine the amount of
damages which may turn on the “worth” of the decedent to the plaintiff.
i. Alcoholic or compulsive gambler may lower “worth”
4. Prior Acts as Proof of Motive, Intent, Plan, and Related Points (pg. 435)
a. General Considerations
 Prosecutors often get in evidence of previous "bad acts" by the defendant
despite the elaborate and settled restrictions against using character evidence to
prove conduct.
i. Showing that D has sold drugs to show intent to sell these drugs now
 FRE 404(b) paves the way for such proof by setting out a lengthy (and
nonexclusive) list of specific points on which it may be admitted, most
important being 'intent."
i. Proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.
ii. Willingness to use wine glass as a weapon (436 Don/Vince)
 Risk of prejudice to the defendant is high, so court must carefully analyze
probative worth and risks of unfair prejudice and confusion of issues.
i. Proof is often excludable under FRE 403 even though it is marginally
relevant.
 4 part test in which judge: (pg. 436)
i. Decides whether the evidence is offered for a proper purpose;
ii. Decides whether it is relevant for that purpose;
iii. Decides whether its probative worth is outweighed by the risk of unfair
prejudice; AND
iv. Gives a limiting instruction on request.
b. Proving Intent
 Prosecutor must give notice, before trial if defendant requests or during trial if
court excuses pretrial notice on good cause, of general nature of prior
acts/wrongs intends to introduce.
c. Identity, Modus Operandi
 To prove modus operandi, typically must show that:
i. The prior act bears a singular strong resemblance to the charged offense
AND
ii. The similarities must be sufficiently idiosyncratic to permit inference of
pattern.
 Defendant who wants to prove other crimes by third persons uses "reverse"
404(b) evidence
i. Defendant argues that offenses by another so strikingly resemble
charged crime that proof suggests that other must be guilty of the
offense charged to the defendant too.
d. Plan, Design
 Plan cases involve a "single, overall grand design that encompasses both the
charged and uncharged offenses"
e. Proving the Prior Act
 Prior acts must be proven by a preponderance of the evidence.
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
So long as judge concludes that reasonable people can reach the conclusion
that the prior act occurred, the judge will allow the jury to determine whether
or not the prior act took place. FRE 104.
 If the defendant has been acquitted of a prior crime, the prosecution may still
offer evidence of the prior crime against the defendant in the instant case.
i. The prosecutor need only prove that the defendant committed the prior
acts by a preponderance of the evidence.
5E (pg. 437) – Smith’s testimony is non-character evidence, because it goes to intent as 404(b)(2), is it outweighed
by 403 concerns of unfair prejudice? If no, then limiting instruction that prior sales are not to be used to determine
guilt, only to determine whether or not it supports his view that he was entrapped
5. Character in Sex Offense Cases (Criminal and Civil) (pg. 450)
a. FRE 412 is the federal “rape shield” statute and restricts the use of evidence relating
to the sexual history of a sex crime victim.
b. FRE 412 bars proof of the victim’s:
 “other sexual behavior”; or
 “sexual predisposition” in sexual assault prosecutions.
c. Exceptions to the barring of this proof which allow:
 Proof of specific instances to show that “someone other than the defendant”
was responsible for “semen, injury, or other physical evidence”;
 Proof of other/past “sexual behavior” with the accused to show consent, and/or
i. Must submit pretrial motion to admit proof of specific past behavior
 Proof that that cannot constitutionally be excluded,
i. Probative value substantially outweighs the danger of harm to victim
d. Procedure to determine admissibility
 A party intending to offer evidence under exceptions must:
i. File a written motion at least 14 days before trial specifically
describing the evidence and stating the purpose for which it is offered
unless the court, for good cause, requires a different time for filing or
permits filing during trial
ii. Serve the motion on all parties and notify the alleged victim
 Before admitting evidence under this rule the court must conduct a hearing in
camera and afford the victim and parties a right to attend and be heard
B. Habit and Routine Practice—FRE 406 (pg. 460)
1. Proof of personal habit is freely admitted
a. FRE 406: “Evidence of a person's habit or an organization's routine practice may be
admitted to prove that on a particular occasion the person or organization acted in
accordance with the habit or routine practice. The court may admit this evidence
regardless of whether it is corroborated or whether there was an eyewitness.”
2. Difference between habit/routine and character
a. “A habit...is a person's regular practice of responding to a particular kind of situation
with a specific type of conduct.”
b. Habits involve nonvolitional-like behavior (i.e. "reflex," "semi-automatic,"
"mechanistic").
c. But, character is more "general" (a "tendency" applicable to "all the varying situations
of life"), and involves "moral overtones" that are not part of our notion of habit.
3. Evidence of the habit of a person or of the routine practice of an organization, whether
corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that
the conduct of the person or organization on a particular occasion was in conformity with the
habit or routine practice
4. Examples of habits
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a. Regularly wearing or not wearing a seatbelt is a habit.
 But having a lot of speeding tickets is not.
b. Usually courts hold that violence toward others cannot be a habit.
c. Carrying a gun can be a habit.
d. Using crosswalks vs. jaywalking can be habit.
e. Always telling your family when you leave or arrive on a trip.
C. Remedial Measures
1. FRE 407 governs subsequent remedial measures which are excludable when offered to prove
that the person in question was somehow at fault before.
a. E.g. physical modifications of machines, changes in labels or instructions, firing of
employees, reorganization of departments, etc.
2. FRE 407 - subsequent remedial measures are admissible for a non-fault purpose, such as:
a. Impeachment;
 But, may courts apply the impeachment exception only when defendants
appear to make broad claims about the safety of prior practices or designs.
b. Proving ownership or control; or
c. The feasibility of precautionary measures.
 Most federal courts construe “feasibility” narrowly, disallowing evidence of
subsequent remedial measures under the feasibility exception unless the
defendant has essentially contended that the measures were not physically,
technologically, or economically possible under the circumstances.
3. FRE 407 applies the exclusionary doctrine of subsequent remedial measures to product
liability cases, but many states do not.
4. Controversially, the Erie doctrine does not require federal courts to follow state practice on
subsequent remedial measures. WEIRD.
5. FRE 407 applies only to remedial measures taken subsequent to the events in question;
measures taken before the accident in suit do not fall within the exclusionary rule.
6. Tuer Case pg. 467 – Dr. following standard procedure who later changes that procedure is
not wrongful/admissible
a. A doctors exercise of pro. Judgment to follow existing protocol may not be impeached
by evidence of said change
b. Re-evaluation of practices doesn’t indicate Dr. made a poor decision, he believed at
the time the standard procedure was the best path forward
c. SOCIAL POLICY – don’t discourage people from taking steps to advance safety, do
better, etc. Otherwise doing the right thing would be actionable.
D. Settlement Negotiations – pg. 474
1. Civil Settlements – 408 REQUIRES DISPUTE
a. FRE 408 bars proof of civil settlements, offers to settle, and conduct or statements
made during settlement negotiations, when offered to prove liability for or invalidity
of the claim or its amount or to impeach through a prior inconsistent statement or
contradiction.
 Documents will only be protected if they are created during the settlement
negotiations; pre-existing documents used in the negotiations will be
admissible.
b. Civil settlements (including offers, conduct and statements during negotiations) are
excludable not only in later civil suits, but in criminal cases (except that settlements in
government enforcement civil suits are not excludable in criminal cases).
c. FRE 408 applies to both "furnishing" or "promising" to pay a civil settlement, and the
language is broad enough to reach fines.
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d. Rule does not apply to conduct or statements in proceedings relating to "a claim by a
public office" exercising regulatory or enforcement authority.
e. 408 exception won’t exclude statements made in an attempt to avoid prosecution (478)
2. Plea Bargaining in a Criminal Case
a. Plea bargaining statements and guilty pleas are also excludable under FRE 410(a)(4),
but only if no guilty plea is reached or if the guilty plea is withdrawn.
b. But, Mezzanatto allows plea bargaining statements to be admissible for impeachment
if the defendant waived this right during the plea bargaining
c. FRE 410 provides a list of incidents that are not admissible in a criminal or civil case.
 A plea of guilty which was later withdrawn
 A plea of nolo contendere
 Any statement made in a guilty plea proceeding
 Any statement made in course of plea discussions with attorney for prosecuting
authority, which does not result in a plea of guilty or which result in a plea of
guilty later withdrawn
d. In determining whether an interaction is a plea negotiation the context will be
important (pg. 482)
 Did the defendant exhibit an actual subjective expectation to negotiate a
plea?
 Was this expectation reasonable given the totality of the objective
circumstances?
e. Rule MAY apply to negotiations with police officers, if officers have power to
negotiate
f. FRE 410 prohibits only the introduction of plea bargaining statements against the
defendant.
E. Proof of Payment of Medical Expenses (485-86)
1. FRE 409 provides that proof of a person paying for injuries/expenses incurred by another is
excludable if offered to prove liability. – responsible behavior does not prove legal fault
a. Allows insurance co. To pay out to those in need without assuming liability
2. By its terms, FRE 409 excludes only “furnishing” or “offering” or “promising to pay” medical
and similar expenses.
a. This suggests that statements accompanying an offer to pay medical expenses likely
would not be excluded, although such statements would be excludable if the context
suggests that the parties were trying to settle the case.
F. Proof of Insurance Coverage (Rule 411 – pg.486)
1. FRE 411 bars evidence of coverage offered in support of arguments such as:
a. A person who purchased insurance was buying a license to be careless, hence that
proof of coverage tended to show that he was negligent on the occasion.
b. A person who bought insurance was displaying special caution, hence that proof of
coverage tended to show that he was careful on the occasion.
2. FRE 411 excludes evidence to show that a person acted negligently or otherwise wrongfully
based on the presence or lack of insurance
a. Evidence permissible for other purpose, such as proof of agency, ownership, or
control, or bias or prejudice of a witness
3. FRE 411 keeps juries from deciding cases or adjusting damages estimates in belief that
insurance will pay the judgment
VI. Competency of Witnesses (rule 601 – pg.489)
A. FRE 601 presumes that a person is competent to testify, unless:
1. Witness does not have personal knowledge of matter about which he is to testify (FRE 602);
2. Does not have the capacity to recall; or
3. Does not understand duty to testify truthfully.
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B. Rule applies to persons considered to be insane to the same extent that is applies to other persons.
C. Personal knowledge
1. FRE 602: “A witness may testify to a matter only if evidence is introduced sufficient to
support a finding that the witness has personal knowledge of the matter. Evidence to prove
personal knowledge may consist of the witness's own testimony.”
2. Under FRE 104(a), the judge must decide whether there is sufficient evidence to support a
jury finding of personal knowledge, but the ultimate determination of whether the witness has
such knowledge is made by the jury under FRE 104(b). If the jury decides that personal
knowledge is lacking, the jury is instructed to give the testimony no weight in its
deliberations.
D. However, in civil actions/proceedings, with respect to element of claim or defense as to which State
law supplies rule of decision, competency of witness shall be determined in accordance with State
law
1. E.g. Dead Man’s Statutes which do not allow party with interest in probate proceedings to
testify about the decedent’s pre-death statements.
E. ACN to FRE 601 says that a witness "wholly without mental capacity is difficult to imagine"
VII. Direct Examination Revisited (pg. 517)
A. Direct examination, for the most part, means nonleading questions.
B. Exceptions - Leading Questions Allowed
1. Under FRE 611(c), judges have discretion to permit leading questions, even during direct
exam
2. It is considered expedient to permit leading questions in four situations:
a. When necessary to develop testimony
 Very young, hence apprehensive, uncomprehending, or confused, timid,
reluctant, ignorant, uncomprehending, unresponsive etc.
b. When the witness is uncooperative
 When witness is hostile or adverse party or identified with adverse party,
lawyer needs more leeway to question, lead witness along
c. When the rule is more trouble than it is worth (i.e. preliminary matters)
 When matters are not contested, preliminary matters (to save time), qualified
experts (can’t be led, 2smart) – You & B live together at 123 Go Street, right?
d. When memory seems exhausted
 Witnesses forget things, and when questioning is stymied by inability of
witness to recollect matters, lawyer is generally permitted to attempt to
"refresh his recollection" - Present Recollection Revised
 Ask witness if memory has been refreshed. If yes? Continue
C. FRE 612 - Writing Used to Memory
1. Latent memory of experience may be revived as an image seen, or a statement read or heard...
a. Generally, as long as the tool is something in accord with the court’s decorum, it will
likely be able to use used to refresh recollection
2. If a witness uses a writing to refresh memory for the purpose of testifying, either a. While testifying OR
b. Before testifying, if court in discretion determines necessary in interest of justice
D. If witness uses writing to refresh memory, adverse party is entitled to have writing produced at
hearing, to inspect it, to cross-examine witness, and to introduce portions which relate to testimony of
witness
1. If claimed that writing contains matters not related to subject matter of testimony court shall
examine writing in camera, excise any portions not related, and order delivery of remainder to
entitled party
E. Police reports don’t have to have been written by the officer testifying (Baker v State)
F. Distinguishing Past Recollection Revived and Past Recollection Recorded
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1. Past Recollection Revived evidence jogs the witness’s dormant memory, but the evidence is
not received in evidence itself. STIMULI IS NOT EVIDENCE
2. Past Recollection Revived does not have to meet the procedural requirements of FRE 803(5)
[see above in hearsay section].
VIII. Impeachment of Witnesses - pg. 535
A. Introduction
1. 10 Ways to Impeach
a. Bias
b. Prejudice
 Interest in Outcome
 Improper Motive
c. Defective Perception or Memory
d. Cross examine re: Prior Acts (or non-conviction Conduct or certain kinds of
convictions allowed under 609 - for truthfulness)
e. Testimony by character witness that target witness is untruthful (for truthfulness)
f. Prior Inconsistent Statements
g. Contradiction
2. Subject to discretion of court under FRE 611 to limit excursions into side issues, supporting
party may examine witness in effort to refute points suggested during attack/explain away
issues on veracity – can provide prior consistent statements
3. Attacks usually mounted during cross-examination of the target witness
a. But also may be mounted via extrinsic evidence (evidence by another witness)
B. Nonspecific Impeachment (Bias, Motivation, Sensory/Mental Capacity, Truth)
1. Bias and Motivation (pg. 537)
a. Few hard-edged rules, and extent of permissible cross-examination for bias is matter
for discretion of trial judge (FRE does not directly mention bias)
 Court cannot properly cut off all apparently legitimate attempts to show
witness is biased, and some subjects are so clearly proper that at least some
questions are always allowed
i. Plea bargains, fees paid to expert witnesses
 Depends on circumstances
b. Bias suggests that the witness is predisposed to testify positively on behalf of one of
the parties
 Proof of bias is almost always relevant because jury has historically been
entitled to assess all evidence which might bear on accuracy and truth of a
witness’ testimony
 Successful showing of bias of witness would have tendency to make facts he
testified to less probable in eyes of jury than would be without such testimony.
See FRE 401 and 402.
 Fact that a witness is on retainer bears directly on bias


Proof of a witness’s bias has a tendency to make the facts of his testimony
less probable. As a result, evidence of such bias is admissible if it is not
barred by Rule 403. A witness’s and a party’s common membership in some
type of organization is one example of a witness’s bias.
Courts allow for Defense to question Prosecution witnesses as to deals & plea
agreements reached to obtain testimony
i. If witness lies and Gov. fails to correct, error
c. FRE 607 - Who May Impeach
 Credibility of a witness may be attacked by any party, including the party
calling the witness
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2. Sensory and Mental Capacity – pg. 548
a. Attacking party may seek to show that a witness had only brief chance to see/hear
what described in testimony, or labors under defects in sensory capacity affecting
observation, or that human perceptive processes work in ways suggesting testimony is
not so persuasive as it seems.
 Such attacks may seek to show that the defendant was under the influence of
drugs, alcohol, or a mental illness.
b. Sometimes the attack proceeds by cross-examination, but such points may also be
proved by extrinsic evidence when the attacking party presents case.
c. Questions on cross-examination must be based on good faith belief in existence of
evidence.
d. Some courts allow expert evidence about the reliability of eyewitness identification,
but most judges find such testimony inadmissible and the appellate courts defer to the
discretion of the trial judge.
e. Rule doesn’t mention impeachment via suggested impairment, but courts will allow it
under FRE 611, speaks of credibility on cross while protecting W from harassment
3. Character for “Truth and Veracity” – pg. 550
a. Overview
 FRE 404 generally bars use of character evidence to prove conduct outside of
court, but showing a person is untruthful involves character evidence to show a
particular kind of conduct in court (lying) which FRE 404(a)(3) makes an
exception for.
i. A party loses most of the protections of FRE 404 if he testifies, because
doing so opens him up to questions exposing misconduct bearing on
truthfulness.
 FRE 608 and 609 authorize this attack of character for truth and veracity, with
certain restrictions.
 FRE 611 allows judges to protect witnesses from “harassment and
embarrassment.”
 Rehabilitation only allowed AFTER credibility has been attacked, can meet
EACH instance of attack/impeachment
i. What was the impeachment about? New issue? New opportunity to
rehab on that issue
b. Cross-examination on Nonconviction Misconduct - 551
 One way to suggest a witness is disposed to be untruthful is to bring out on
cross examination of nonconviction misconduct that seem to bear on veracity.
i. FRE 608(b) endorses cross-examination on such points as long as the
court decides that the act points toward the conclusion.
1. Highly discretionary for trial judge.
 A witness may be cross-examined on a prior bad act that has not resulted in a
criminal conviction only where
i. The examiner has a factual predicate for the question; and
ii. The bad act bears directly upon the veracity of the witness in
respect to the issues involved in the trial.
 Most modern cases disapprove cross-examination about behavior that does not
directly involve lies or deception.
i. So, questioning about drug use, violence, or sexual
relationships/adultery are generally disapproved.
ii. E.g. cross-examination about adultery is not allowed.
iii. Court are split on whether theft suggests untruthfulness. Most courts
say it does not.
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
Lawyers cannot ask such questions without adequate basis because the
questions themselves can impeach.
 Permissible examples
i. Lying on employment applications about prior convictions
ii. Persuading ineligible voters to falsify registrations
iii. False information on loan applications and tax returns
iv. Aliases
v. Stealing from employer
1. Courts are split on this.
vi. Bribery
 When it does apply, FRE 608(b) allows cross-examination, but not extrinsic
evidence.
 FRE 608 does not require pretrial notice, but a responsible lawyer, if there is
any doubt, advises the court so that matter can be aired in advance
 Under 608(b) a witness’ past threat of physical violence against another
potential witness qualifies as a specific instance of conduct that may be raised
on cross as probative of the testifying witness’ truthfulness or untruthfulness
i. Manske Case (553-54)
c. Proving Prior Convictions - 559
 FRE 609(a) states the principle in two parts:
i. Cross-examiner can ask about convictions for crimes "punishable by
death or imprisonment in excess of one year"
1. For criminal defendant, such convictions can be used to
impeach ONLY if probative value "outweighs" their
"prejudicial effect" to defendant ( a "reverse FRE 403" standard
because favors excluding evidence).
2. For witnesses OTHER than a criminal defendant, admissibility
of such convictions is subject to FRE 403.
ii. Crimen falsi: Cross-examiner can ask about ANY convictions (felonies
or misdemeanors) involving dishonest or "false statement" (autoadmitted)
1. Do not involve theft usually, unless dishonesty/false statement
part of crime
a. Depends on circumstances
b. A judge should look at the specific facts and
circumstances of the prior crime in order to determine if
such a conviction is indicative of dishonesty
2. Narrowly drawn so include only crimen falsi
a. Must be admitted
b. Trial judge lacks discretion to disallow the evidence
iii. Gordon Factors in applying FRE 609(a)(1):
1. The nature of the conviction;
2. Its recency or remoteness;
3. Whether it is similar to the charged offense;
4. Whether defendant’s record is otherwise clean;
5. The importance of credibility issues; and
6. The importance of getting the defendant’s own testimony.
iv. When a prior conviction comes in for purposes of impeachment, the
jury will hear the name of the offense, the nature of the offense, and the
date of the offense. No major details of crime, no mini-trial
v. A witness can offer explanation on re-direct, mitigating elements etc
vi. Theft will almost never qualify under 609(a)(2)
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




1. Look at indictments, statement of facts, jury instructions etc to
see if the false statement was necessary for the conviction
vii. Acts involving fraud, deceit, perjury, subordination of perjury,
false statements, embezzlement, and false pretenses
Time Limit – 561
i. FRE 609(b) recognizes a ten-year time limit, which in effect creates a
presumption that convictions older than 10 years are excludable.
1. Convictions older than 10 years will only be admissible where
the proponent shows that the probative value substantially
outweighs the prejudicial effect.
ii. Proponent must give adverse party sufficient advance written notice of
intent to use such older evidence to provide adverse party with fair
opportunity to contest use of evidence
Pardon/Annulment – 562
i. FRE 609© disallows use of convictions to impeach in some
circumstances where formal procedures indicate:
1. That witness has been rehabilitated if there no later felony
convictions OR
a. If based on finding of rehabilitation, can’t be used unless
person has committed another crime
2. Where a formal procedure (such as a pardon) concludes that the
witness is innocent
a. Can never come in.
Juvenile Adjudications
i. FRE 609(d) severely limits use of youthful brushes with the law.
ii. In order for evidence of juvenile conviction to be admissible, three
requirements:
1. Witness must not be the defendant;
2. Evidence must be otherwise admissible under FRE 609(a)
3. Evidence must be necessary for fair determination of issue of
guilt or innocence
Matters on Appeal
i. FRE 609(e) permits cross-examination on convictions despite pendency
of an appeal
1. But can bring up evidence that issue is on appeal, dealing with
WEIGHT of evidence, not admissibility.
Preserving Error for Review on Appeal
i. Under Luce, a defendant who decides against testifying because the
courts refuses to exclude his prior conviction loses the right to claim
error.
ii. If he does testify, his lawyer would prefer to “make a clean breast of it”
by bringing out the conviction on direct, rather than waiting until the
prosecutor raises the matter on cross. This avoids the impression to the
jury that defendant is “hiding something.” However, this puts the
defendant between a rock and a hard place because, when the defendant
uses this strategy of broaching the subject himself, the defendant
forecloses a right of appeal on the point of the prior conviction. Ohler
v. United States, 529 U.S. 753 (2000).
4. Character Witness (pg. 577
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FRE 608(a) authorizes testimony of “opinion” and “reputation” by a character witness
regarding the truthfulness of the witness in question, subject to limitations:
 The evidence may refer only to the character for truthfulness or untruthfulness
AND
 Evidence of truthful character is admissible only after the character of the
witness for truthfulness has been attacked.
b. Must lay foundation for basis of person’s knowledge.
c. Experts cannot testify as character witnesses, typically, so can't bring in psychiatric
testimony.
C. Specific Impeachment (Prior Inconsistent Statements, Contradiction) (pg578-79)
1. Prior Inconsistent Statements
a. If witnesses’ testimony differs on some point from prior statements, attacking party
may cross-examine on these statements and (subject to some conditions) prove them
by "extrinsic evidence" (testimony by other witnesses).
b. Pursuant to FRE 613(a), cross-examiner may go straight to the point of inconsistent
statement
 Only restriction is opposing counsel is entitled, on request, to see
statement/learn contents, purpose being to enable repair, if possible, of damage
done by attacker if distorted statement or wrenched it out of context
c. Pursuant to FRE 613(b), if prior inconsistent statement proved by extrinsic evidence,
witness must have opportunity to explain/deny, and adverse party has chance to
interrogate
 So, court asks opposing counsel if there is any reason for witness to stay.
d. (problem 8-E pg.580 – must use chance to bring out lie in cross, or ask witness to stay
until impeaching witness testifies) – if used for limited purpose of impeachment, also
doesn’t meet prior inconsistent statement exception to hearsay b/c original statement
was not given under oath etc.
e. "Abuse" of FRE 607
 Remember that impeaching use of prior inconsistent statements is considered
non-hearsay.
i. Remember that some inconsistences are admissible as substantive
evidence if they fit FRE 801(d)(1)(a) because they were given in
proceedings under oath and the declarant is now cross-examinable
(591).
ii. Huge risk of jury misuse.
 Impeachment by prior inconsistent statement is not permitted where
employed as a mere subterfuge to get before the jury evidence not
otherwise admissible, requires good faith. (US v Webster)
i. Good faith = not knowing what witness may say, requesting voir
dire that is denied, etc.
ii. Witness being offered for tricksy purpose of getting in inadmissible
evidence under guise of impeachment by offering party
Witnesses
may sometimes fail to live up to expectations, and there is

understandable temptation to get before the jury any prior statement made by
the witness, but not allowed.
f. Constitutional Issues (592)
 Pre-Miranda Warning statements, though inadmissible in the prosecution’s
case-in-chief, are admissible for purposes of impeachment. Harris.
i. The shield provided by Miranda cannot be perverted into a license to
use perjury by way of a defense, free from the risk of confrontation
with prior inconsistent utterances
a.
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
5th Amendment is not violated by use of pre-arrest silence to impeach criminal
defendant’s credibility. Jenkins. (595) – not going to the police is bad, go
quickly so no period of silence
 Involuntary statements taken by seriously wounded people are no good (593)
2. Contradiction (pg. 596)
a. No specific rule articulates impeachment by contradiction, but it has always been
permitted.
b. Impeaching witness by contradiction entails showing that something said in testimony
is not so.
 Sometimes impeachment is done by cross-exam, but often by extrinsic
evidence (counterproof)
 Counterproof can refute specific points, but alone is indefinite in explaining
lies or errors
c. Courts generally recognize that all contradicting counterproof has some
impeaching effect but let it in only if has additional relevance, i.e. some relevance
independent of its contradicting effect
 Counterproof that not only contradicts but also tends to prove a substantive
point
i. Usually gets in, since it would be admissible anyway.
ii. How valuable to the case in chief would it have been is one factor to
analyze relevancy, etc with 403
 Counterproof that not only contradicts but tends to prove some other
impeaching point
i. Usually gets in, since it would get in anyway.
Counterproof
that only contradicts

i. Usually excluded for has no relevancy apart from contradicting the
witness.
ii. Contradicts some "collateral" point, but sometimes admitted where it
seems that a witness could not be innocently mistaken.
d. Courts generally exclude counterproof that contradicts only on a collateral point
 Require a dual relevancy of evidence offered to contradict witness, for such
proof must tend not only to prove that witness lied or erred, but also to prove
some other point that could make a difference in the case
e. Illegally obtained evidence may be used to impeach the testimony of a defendant when
the defendant chooses to testify in his own defense, even if the testimony being
impeached was only brought out on cross-examination. Havens.
 D opens the door on direct (lying on direct)
f. FRE 608(b) does not apply to impeachment by contradiction, except for attacks on
“character for truthfulness.”
 But, FRE 608(b) does affect impeachment by contradiction when a party crossexamines a witness on nonconviction misconduct in order to suggest
untruthfulness because FRE 608(b) blocks use of "extrinsic evidence" to prove
misconduct.
D. Repairing Credibility (610)
1. When a witness has been impeached, ordinarily some party has an interest in repairing the
damage.
a. Rules allow for this strategy, but with two conditions
 Courts disallow any attempt to repair credibility before attack has come (See
FRE 608(a)); and
 Repairs should be made at the point of attack.
40
b. Generally, courts allow a party to anticipate an attack for witnesses that have some
obvious vulnerability and then still repair their credibility, even though they brought
the issue out themselves
2. What Constitutes and Attack on Credibility that Paves the Way for Repair?
a. Credibility is attacked if adverse party engages in any of three forms of attack on
character:
 Cross-examination of target witness on nonconviction misconduct under FRE
608(b);
 Adducing testimony from character witness that target witness has bad
character for truth and veracity, provable by opinion/reputation testimony
under FRE 608(a); OR
 Proving that the target witness has prior convictions under FRE 609(a).
b. Generally, evidence that simply contradicts or refutes testimony given by witness
does NOT invite rehabilitation or repair.
3. Evidence of Good Character (612)
a. FRE 608(a) authorizes courts to admit “opinion or reputation” testimony supporting
credibility after character for truthfulness has been attacked
b. “Sharp questioning” about acts raised by prosecution in anticipation of an attack may
constitutes an “attack” for purposes of FRE 608(a). Medical Therapy Sciences.
4. Prior Consistent Statements (614)
a. Prior consistent statements are often admissible to rehabilitate witness, primarily in
cases where attacking party suggests testimony tainted by recent fabrication/undue
influence/motive.
 The pre-motive requirement applies, so the prior consistent statement had to
precede the alleged improper motive.
b. What consistent statements rebut a charge of fabrication or influence?
 A prior consistent statement that predates alleged recent fabrication/motive to
falsify has sufficient probative value to be admitted because it tends to rebut
charge of recent contrivance.
 Because of difficulty in determining whether consistent statement predated
motive to fabricate, many courts abandoned this requirement, such as in Tome
i. Most courts applies Tome only when consistent statements are also to
be used as substantive evidence under FRE 801(d)(1)(B).
c. Substantive and Rehabilitating Uses Compared
 FRE 801(d)(1)(B) does not regulate repairing credibility.
 Repairing use is not hearsay use: reason is that rehabilitating a witness by a
prior consistent statement is analogous to the nonhearsay use of inconsistent
statements to impeach. Both require pre-motive statement
E. Forbidden Attacks (623)
1. FRE 610 disallows impeaching attempts that attack credibility on the basis of "beliefs or
opinions" on matters of religion
IX. Opinion and Expert Testimony (625)
A. Lay Opinion Testimony
1. Under Rule 701, lay opinion testimony is admissible if it is:
a. “rationally based” on “perception”; and
b. “helpful” to the trier of fact in understanding his testimony or determining a fact in
issue, provided that it does not reflect "scientific, technical or other specialized
knowledge" covered by Rule 702.
2. “Facts” and “Opinions” differ in degree rather than kind.
a. Facts are more specific or concrete.
b. Opinions are more general or conclusory.
3. Other Requirements
41
a. FRE 704(a) permits a witness to offer an opinion or inference related to an ultimate
issue. (a ? jury must resolve)
b. FRE 602 requires lay witnesses to have personal knowledge, treating this matter as an
aspect of witness competency rather than testimonial form.
c. FRE 701(c) ensures that FRE 701 is applied only to testimony that is NOT based on
scientific, technical, or other specialized knowledge within the scope of FRE 702.
 does not distinguish between expert/lay witnesses, but rather between
expert/lay testimony
4. Collective-facts doctrine (626)
a. If it is impossible or difficult to reproduce the data observed by the witnesses, or the
facts are difficult of explanation, or complex, or are of a combination of circumstances
and appearances which cannot be adequately described and presented with the force
and clearness as they appeared to the witness, the witness may state his impression and
opinions based upon what he observed. It is a means of conveying to the jury what the
witness has seen or heard."
5. “Opinion” Testimony that is Often Permissible. (627)
a. "Lay opinions should be admissible upon a great variety of unscientific questions
arising every day, and in every judicial inquiry. These are questions of identity,
handwriting, quantity, value, weigh, measure, time, distance, velocity, form, seize,
age, strength, heat, cold, sickness, ad health; questions also concerning various mental
and moral aspects of humanity, such as disposition and temper, anger, fear,
excitement, intoxication, veracity, general character, and particular phases of
character, and other conditions and things, both moral and physical, too numerous to
mention."
b. Can’t be too speculative (did P do everything they could to avoid accident? Witness
can’t see into car, etc.) (631)
c. Can’t misstate standard of care (could a perfect driver have avoided accident?
Driving uses a reasonable person standard) (631)
6. Misc.
a. Uncertainty about a fact or an identification of someone does not block the evidence
for lack of personal knowledge under FRE 602.
b. Lay testimony that approximates the speed of a vehicle are almost always admissible
under FRE 701.
c. Testimony about whether someone is under the effects of drugs is sometimes
problematic because not everyone could tell if they haven't had experience with it.
B. Expert Witnesses (633)
1. Who is an Expert?
a. Under FRE 702, an expert is someone with specialized knowledge
 Embraces people with practical experience (but no formal training) and people
with training.
b. An expert has some form of scientific, technical, or other specialized knowledge that
will assist the trier of fact to understand the evidence or determine a fact in issue.
2. When can Experts Testify?
a. Witness qualified as expert may testify to their expertise in form of an opinion or
otherwise if:
 The testimony is based upon sufficient facts or data;
 The testimony is the product of reliable principles and methods; AND
 The witness has applied the principles and methods reliably to the case.
b. Under FRE 702, an expert can testify only if what he says will assist the trier of fact to
understand the evidence or to determine a fact in issue (helpfulness)
42

Most cases allow experts to help a jury understand even familiar matters, but
some cases differ if the area is simple and familiar to jurors.
3. Bases for Expert Testimony
a. FRE 703 lets expert testify on basis of facts or data of three sorts, provided that they
are kinds of facts that experts in the field would "reasonably" rely on, even if not
admitted in evidence
 Facts or data learned by firsthand observation beforehand;
 Facts or data learned at trial/hearing; and/or
 Outside data, meaning information gleaned before trial by consulting other
sources.
i. Unique to experts, formal recognition that experts inherently rely on
outside data.
b. Otherwise inadmissible evidence used as a basis for expert testimony is admissible
only if its probative value in assessing the testimony substantially outweighs its
prejudicial effect.
 But it cannot be used for other purpose.
c. Pursuant to FRE 705, expert may testify in terms of opinion/inference and give
reasons without first testifying to underlying facts or data, unless court requires
otherwise.
d. Expert may be required to disclose the underlying facts or data on cross-examination.
 Adversary’s attack on expert’s basis will often open door to opponent’s
rebuttal with information that was reasonably relied upon by expert, even if
could not be disclosed earlier.
4. Formal Problems (643)
a. Under FRE 704(a), an opinion is not automatically objectionable just because it
embraces an ultimate issue.
 But, Modern courts continue to reject expert testimony on the proper
application of legal standards.
b. In a criminal case, an expert witness must not give an opinion about whether the
defendant did or did not have a mental state or condition that constitutes an element of
the crime charged or of a defense. Those matters are for the trier of fact alone. FRE
704(b).
 But, experts can testify on mental state of defendants as long as they don’t
draw the ultimate inference or conclusion.
5. Presentation of Expert Testimony (645)
a. In the case of a professional person, usually the calling party brings out (1)
educational background, (2) experience, and (3) familiarity with the subject in suit.
b. Qualifying the witness
 Party calling witness asks the judge to “qualify the witness as an expert.”
 If the expert qualifies, the calling party then proceeds to substance.
i. Adverse party may be willing to stipulate to expert's qualification to
avoid having jury get too impressed, but calling party might decline
because they want to get the impressive qualifications out.
c. Bringing out Expert Opinion (645)
 FRE 705 allows calling party to ask directly for expert’s opinion or inference
without prior disclosure of the basis, but establishing the basis first is not
prohibited either.
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
FRE 705 leaves the door open for the traditional “hypothetical question route,”
but it is rarely used. (646-47)
6. Court-Appointed Experts (651)
a. FRE 706 authorizes court itself to appoint independent experts, in order to counter
“battle of the experts” at trial.
b. Has been vigorously opposed and rarely used.
c. Assumption is that availability of rule might keep parties honest in terms of standard
of experts
C. Reliability Standard for Scientific and Other Technical Evidence
1. Defining a Standard
a. For years, courts used the Frye to admit scientific or technical evidence. This standard
required evidence be "generally accepted" in the pertinent scientific community.
b. Daubert (655) changed this to a more flexible standard, Kumho Tire extended that
standard to all expert testimony, and FRE 702 was amended in response to Daubert.
2. Under Daubert, scientific or technical evidence must be both relevant and reliable.
a. Relevance is assessed under FRE 401.
b. Reliability is assessed according to several factors:
 Testing
i. Whether the theory or technique can be and has been tested.
 Peer Review
i. Whether it has been subjected to peer review and publication.
 Known/Possible Error Rates
i. The known or potential rate of error
 Controlling Standards
i. The existence and maintenance of standards controlling the technique’s
operation.
 General Acceptance (was THE standard under Frye)
i. Not a necessary precondition, but still an important consideration.
c. Reliability factors not an exhaustive list, judge can look at other stuff and one alone
is not dispositive of issue.
d. Daubert and Kumho emphasize that the trial judge has a high level of discretion.
3. ACN include other factors relevant in determining reliability of scientific/other technical
evidence: (172-73 of rule book)
a. Whether experts are ''proposing to testify about matters growing naturally/directly out
of research they have conducted independent of litigation, or whether they have
developed their opinions expressly for purposes of testifying.''
b. Whether expert has unjustifiably extrapolated from accepted premise to an unfounded
conclusion
c. Whether the expert has adequately accounted for obvious alternative explanations.
d. Whether expert ''is being as careful as would be in regular professional work outside
paid litigation consulting.''
e. Whether field of expertise claimed by expert is known to reach reliable results for type
of opinion expert would give.
f. Newness and relationship to established processes or techniques
g. Qualifications or stature of the witness.
4. Statistical Evidence (678)
a. The convention for scientific evidence that is statistical is that it is inadmissible if
there is more than a 5% probability that observed correlation is the result of chance or
accident.
5. Toxic Exposure - 681
6. Syndromes (682)
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a. Not all syndromes are admissible
b. Five Common Areas are admissible.
 Child Abuse
i. Evidence of battered child syndrome and child sexual abuse
accommodation syndrome
 Sexual Assault
i. Evidence of rape trauma syndrome
 Spousal battering or murder trials
i. Battered woman syndrome
 PTSD
 Bipolar and multi-personality disorder
7. Courts everywhere admit DNA evidence.
X. Judicial Notice (753)
A. Judicial Notice describes process by which a court determines certain matters without need of formal
proof.
1. Some things are just so well established that they MUST be true (e.g. law of gravity).
2. Judicial notice saves time and expense by proving matters are beyond reasonable dispute.
B. Judicial Notice Covers Four Areas:
1. Adjudicative facts (facts that normally go to jury) (only area governed by FRE 201)
a. Adjudicative facts are those that would have to be proved by evidence w/o notice
b. Judicial notice of adjudicative facts serves as a substitute for evidence.
 In a non-jury trial, the judge takes judicial notice merely by making an
announcement or ruling.
 In a jury trial, judicial notice requires an instruction telling the jury that notice
has been taken and explaining what that means. FRE 201(f).
2. Evaluative facts (not regulated) (754)
a. Most basic evaluative facts are those that help judge/jury understand testimony and
other evidence, such as usual meaning of words/idioms/slang expressions.
b. An evaluative fact is normally a matter of general knowledge.
 Engine failed, plane crashed, assume jury understands the connection
3. Legislative facts (not regulated)
a. Those that are considered by a trial or appellate court in ruling on a question of law.
b. E.g. legislative history, scientific propositions, sociological or historical facts.
4. Law
a. Judicial notice of law refers to the process by which the court determines the
controlling law.
C. The court may take judicial notice, even where it is not requested
D. Effect of Judicial Notice
1. In a civil case, the taking of judicial notice is conclusive.
2. In a criminal case, the jury is instructed that it is not required to take the evidence
conclusively.
E. Jury
1. In civil cases FRE201(f) provides that court must instruct jury to accept the noticed fact as
conclusive, when fact is not subject to reasonable dispute
XI. Privileges (779)
A. Introduction
1. Privileges are the most significant area of evidence law not codified in the Rules.
2. Privileges are governed by federal common law.
B. Attorney-Client Privilege (781)
1. Communications made b/n privileged persons, in confidence, for purpose of obtaining legal advice
a. Information communicated to lawyer for purposes of getting legal advice is privileged.
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
Client must expect information to be privileged (i.e. cannot be having
conversation in front of non-privileged persons).
 Privilege covers communications, not the facts reported in those
communications.
i. Can't ask "what did you tell lawyer", but can ask about what you knew
on your own.
 Demeanor of a client in his interactions with a lawyer is generally not
considered to be communications within the scope of the attorney-client
privilege.
i. Because observable by the entire world.
b. Whenever defense counsel removes or alters evidence, the statutory privilege does not
bar revelation of the original location or condition of the evidence in question.
 If defense counsel leaves the evidence where he discovers it, his observations
derived from privileged communications are insulated from revelation.
 If, however, counsel chooses to remove evidence to examine or test it, the
original location and condition of that evidence loses the protection of the
privilege.
2. Corporate Client (803)
a. Applicability of attorney-client privilege to corporations must be assessed on a caseby-case basis
 Upjohn rejects "control group" theory.
 Replaces it with case-by-case factor analysis.
b. Upjohn Factors to Determine When Corporate Privilege Applies:
 The communications were made by employees to corporate counsel for the
purpose of enabling counsel to provide legal advice to the corporation;
 They were made at the direction of corporate superiors;
 The communications concerned matters within the scope of the employment;
and
 The communications were treated as confidential when made and were kept
confidential
c. When control of a corporation passes to new management, the authority to assert and
waive the corporation's attorney-client privilege passes as well.
3. The Attorney Work-Product Doctrine (813)
a. Attorney’s work product in preparation for litigation protected from discovery by
adverse party
b. Exception when the adverse party can show substantial need and the documents
requested do not contain the mental impressions of the attorney.
4. The attorney-client privilege protects the client; the work-product doctrine protects the
attorney
5. Privilege survives the death of the client.
6. Inadvertent Disclosure
a. Inadvertently disclosed info usually only waives privilege if you don’t have reasonable
means to prevent inadvertent disclosure.
b. Clawback agreements, if document released can be clawed back and other party agrees
not to use it, return document.
C. Spousal Privileges (847)
1. Introduction
a. Common law and most modern statutes recognize two related but distinct spousal
privileges.
 Testimonial Privilege bars adverse spousal testimony.
i. Blocks all testimony by one spouse against another, including accounts
of premarital acts or events.
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ii. But, applies only if the spouses are married when the testimony is
sought.
b. Confidence Privilege protects spousal confidences.
 Excludes only testimony about private communications between spouses while
they were married.
 Applies forever, even blocking post-dissolution testimony describing private
communications occurring during marriage.
2. Testimonial Privilege (848)
a. Rule from Trammel (855)
 The witness-spouse alone has a privilege to refuse to testify adversely; the
witness may be neither compelled to testify nor foreclosed from testifying to
evidence that does not consist of confidential marital communications.
b. Marriage must be valid when the privilege is invoked
 Information learned prior to entering into the marriage will be protected so
long as there is a valid marriage.
 Divorce ends the privilege
c. Information revealed by witness-spouse to a third party may be admissible as evidence
from the third party if an exception to the hearsay doctrine applies.
d. Won’t apply to sham/phony marriages made to use privilege (intention to live
together)
e. Will still be priviliged if an eavesdropper hears if spouse intended confidentiality
3. Spousal Confidences Privilege (857)
a. The Spousal Confidences Privilege provides that communications between spouses,
privately made, are generally assumed to have been confidential, and hence they are
privileged.
b. The spousal confidences privilege extends to:
 Words and acts intended to be a communication;
 Requires a valid marriage; and
 Applies only to confidential communications.
c. Both spouses hold the spousal confidences privilege.
d. Spousal confidences privilege goes beyond dissolution of the marriage if confidential
and communications were during the marriage.
e. Montgomery (859) – letter written from one spouse to another addressing a thirdparty theft is still confidential, letter was private, doesn’t matter that it directed
husband to take action on the info provided
 confidentiality also survives a speculative possibility someone else saw
4. Exceptions to Marital Testimonial Privilege and Spousal Confidences Privilege: (865)
a. Privilege does not apply to statements made in furtherance of joint criminal activity.
 Applies privilege to communicative actions/statements before spouse
becomes co-conspirator, but not after.
b. Privilege does not apply if one spouse is prosecuted for crime against the other spouse
or a child of either spouse.
c. Privilege does not apply in spousal suits, like divorce or child custody litigation.
 Unspoken “unnatural sexual demands” not privileged
d. Privilege does not apply to communications in the presence of outsiders.
 Privilege also does not reach comms. Voluntarily made b/n spouses in
presence of children old enough to understand
D. Misc. Privilege Notes
1. SCOTUS recognizes doctor-patient privilege and therapist-patient privilege.
2. But, there is no parent-child privilege.
a. Except in 3 states.
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XII. Authentication (867)
A. Introduction
1. Before tangible evidence is admitted, proponent must show that what he offers is what he says
it is.
2. Authenticating an item of evidence under FRE 901 means offering evidence sufficient to
support a finding that the matter in question is what the proponent claims.
3. FRE 901 allows courts to consider such things as appearance, contents and internal patterns in
determining the authenticity of an item offered as evidence.
4. Authentication gives rise to issues of conditional relevancy under FRE 104(b).
a. Authenticity speaks to common understanding, meaning should be able to trust jury to
decide whether object is real thing, ignore item proffered for consideration if believes
not authentic.
b. Proponent must offer enough proof to enable jury to find an exhibit authentic.
5. There are two main ways to authenticate evidence:
a. Some form of testimony (FRE 901) – Requires testimony.
b. Self-Authentication (FRE 902) – Doesn’t require testimony.
 GOOD EXAMPLE ON PAGE 869
6. Traditional steps to authenticate and introduce an exhibit: (868)
a. Getting the court reporter to mark the exhibit for identification
b. Offering testimony identifying or describing the exhibit (heart of the authentication
process)
c. Offering the exhibit in evidence
d. Letting counsel for other parties examine it
e. Giving the other lawyers a chance to object
f. Submitting the exhibit to the court to examine it if it wishes
g. Getting a ruling
h. Asking permission to present the exhibit, if admitted, to the jury
B. Tangible Objects (869)
1. FRE 901(a) provides requirement of authentication/identification as condition precedent to
admissibility satisfied by evidence sufficient to support finding item in question is what
claimed
2. Developing chain of custody not an iron-clad requirement, missing-link does not prevent
admission of real evidence, so long as there is sufficient proof that the evidence is what it
purports to be and has not been altered in any material aspect.
a. A court may require proof of chain of custody when evidence is fungible, not
readily identifiable, or susceptible to tampering or alteration.
b. A chain of custody normally requires calling each of the persons who had custody of
the time from the time of the relevant event until trial and offering testimony showing
(1) when they took custody and from whom, (2) precautions they took to preserve the
item, (3) the item was not changed, substituted, or tampered with while they had it,
and (4) when they relinquished custody and to whom. Each witness should also testify
that the time offered appears to be in the same condition as when they had custody of
it. (reasonable probability of no tampering) (comment 2 – 873)
3. US v Howard (872)
a. “the purpose of threshold requirement is to est. that item introduced (the weed), is
what it appears to be (weed from that boat), so ultimate question is whether
authentication testimony was sufficiently complete to convince court that it is
improbable the item was swapped with another or otherwise tampered with”
 How big a break in chain of custody speaks to weight it should be given (small
break, more weight, big break, no weight or inadmissible)
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C.
D.
E.
F.
4. Jury will determine whether or not the proffered evidence is in fact sufficient to support a
finding that the evidence is what it purports to be (as a matter of conditional relevance under
FRE 104(b).
Writings (874)
1. Requirement of auth. satisfied by evidence sufficient to support finding it is what proponent
says it is
a. Finding of authenticity may be based entirely on circumstantial evidence, including
"appearance, contents, substance...and other distinctive characteristics" of the writing.
b. Spelling/grammar errors can authenticate writings (spell same word wrong 4 times in
two letters)
2. Traditionally, courts have been unwilling to authenticate a writing based on a letterhead, but
modern decisions are more accepting of letterhead as at least a partial basis for authentication.
Telephone Conversations (PG. 888)
1. Telephone call out of the blue from one who identifies himself as X may not be, in itself,
sufficient authentication of the call as in fact coming from X.
2. Circumstantial evidence may even be used.
3. Hearing another person’s voice on a single prior occasion can be sufficient to testify to the
identity of a caller.
Authentication of Demonstrative Evidence
1. Mock-ups/illustrations created for trial for purpose of demonstrating something to the jury
where real evidence cannot be obtained (e.g. drawing of an intersection; model of a plane
crash)
2. Witness must testify to fact demonstrative evidence is fair and accurate representation of real
thing.
Self-Authenticating Exhibits (891)
1. FRE 902 provides for self-authenticating exhibits, meaning exhibits do not require extrinsic
evidence.
a. These pieces of evidence provide their own foundation and there is no need to call a
witness to prove what it is.
2. List of Self-Authenticating Evidence in FRE
a. FRE 902(1): a government document under a government seal (or its equivalent) and
signed by a public official is self-authenticating.
b. FRE 902(2): a government document which bears the signature of a government
official in his official capacity is self-authenticating, even without seal, if a public
officer having a seal and official duties certifies under seal that the signer has official
capacity and signature is genuine. (requires signature & seal – 892)
c. FRE 902(4): a certified copy of a government document under a government seal or
bearing the signature of a government official in his official capacity is selfauthenticating.
d. FRE 902(5): books, pamphlets, or other publications purporting to be issued by public
authority is self-authenticating.
e. FRE 902(6): printed materials purporting to be newspapers or periodicals are selfauthenticating.
 This does not make newspapers or periodicals admissible to prove the truth of
statements they contain except where such statements fit an exception to the
hearsay rule. It is taken as an impression of the publication whose
identification it carries.
f. FRE 902(7): inscriptions, signs, tags, or labels purporting to have been affixed in court
of business and indicating control, ownership or origin are self-authenticating
(trademarks and like).
g. FRE 902(8): documents accompanied by a certificate of acknowledgement executed in
the manner provided by law by a notary public.
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h. FRE 902(9): commercial paper and related documents are self-authenticating to the
extent provided by general commercial law.
 Incorporates provisions of the UCC.
i. FRE 902(10): incorporates by reference the multiplicity of federal statutes making
certain documents presumptively or prima facie genuine or authentic.
 Transcript of court proceedings is deemed prima facie correct as statement of
testimony taken and proceedings had, but no transcript is considered official
except those made from records certified by the reporter or other authorized
person
j. FRE 902(11): allow for original or a duplicate of a domestic record of regularly
conducted activity that would be admissible under Rule 803(6) if accompanied by
written declaration of its custodian or other qualified person certifying that the record
1) was made at or near the time of the occurrence of the matters, 2) was kept in the
course of the regularly conducted activity AND 3) was made by the regularly
conducted activity as a regular practice
3. Self-Authentication does not bar counter-proof by opponent suggesting that exhibit is not
authentic
a. Civil case: if document is self-authenticating and opposing party does not offer
counter-evidence in response, the judge will issue an instruction that it must be taken
as true and genuine.
b. Criminal case: jury will have to decide whether to accept self-authenticating evidence.
XIII. The “Best Evidence” Doctrine (905)
A. Under FRE 1002, to prove the content of a writing, recording, or photograph, the original writing,
recording or photograph is required, except as otherwise provided in the Rules or by Act of Congress.
B. Under FRE 1003, a duplicate is admissible to the same extent as the original unless:
1. A genuine question is raised as to the authenticity of the original, or
2. In the circumstances it would be unfair to admit the duplicate in lieu of the original
C. Exceptions
1. Under FRE 1004, original is not required, and other evidence of contents of a writing,
recording, or photograph is admissible if:
a. All originals are lost/destroyed, unless proponent lost/destroyed them in bad faith; OR
b. No original can be obtained by any available judicial process or procedure; OR
c. At time when original was under control of party against whom it is offered, that party
was put on notice, by pleadings/otherwise, that contents would be a subject of proof,
and that party does not produce the original; OR
d. Writing, recording, or photograph is not closely related to a controlling issue
2. Under FRE 1005, contents of official record, or of document authorized to be recorded or
filed and actually recorded or filed, if otherwise admissible, may be proved by copy, certified
as correct in accordance w/ FRE 902/testified to be correct by witness comparing to original
a. If a copy which complies with the foregoing cannot be obtained by the exercise of
reasonable diligence, then other evidence of the contents may be given.
3. Under FRE 1006, contents of voluminous writings, recordings, or photographs which cannot
conveniently be examined in court may be present in form of a chart, summary or calculation.
a. Originals, or duplicates, shall be made available for examination/copying, or both, by
other parties at reasonable time and place
b. The court may order that they be produced in court
4. Under FRE 1007, contents of writings, recordings, or photographs may be proved by
testimony or deposition of party against whom it is offered or by that party’s written
admission, without accounting for the nonproduction of the original - Get opposing party to
admit that what is offered is good enough
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D.
E.
F.
G.
5. FRE 1008, if there is a question as to admissibility of duplicate, which is in conflict w/
original, or if original ever existed, the jury should determine which of the documents is
authentic
Defining A “Writing, Recording, or Photograph” (910)
1. When the disputed evidence is an object bearing a mark or inscription, and is, therefore, a
chattel and a writing, the trial judge has discretion to treat the evidence as a chattel or as a
writing.
a. Trial judges have wide discretion to determine whether the Best Evidence doctrine
should apply to inscribed chattel.
2. Factors to consider about whether a written inscription on chattel should be excluded:
a. The importance of the matter in question to the issues in the case;
b. The simplicity or complexity of content and consequent risk of error in admitting a
testimonial account;
c. The strength of the proffered evidence of content, taking into account corroborative
witnesses or evidence and the presence or absence of bias or self-interest on the part of
the witnesses;
d. The breadth of the margin for error within which mistake in a testimonial description
would not undermine the point to be proved;
e. The presence or absence of an actual dispute as to content;
f. The ease or difficultly of producing the original;
g. The reasons why the proponent of other proof of content does not have or offer the
original itself.
Defining an Original (912)
1. To decide which of several writings is "original," consider elements of charge/claim/defense,
intention of parties, surrounding circumstances, use of writing, and purposes of offering party
2. FRE 1001(d) provides the official definition.
a. Virtually all photos are originals under this definition.
b. Printouts of electronic data are good
Use of Duplicates (913)
1. FRE 1003 permits the use in evidence of any duplicate without need to make excuses for
nonproduction of the original under FRE 1004, because of newer technology
a. Manual copies (i.e. handwritten) not acceptable
2. Duplicates are excludable when there are concerns as to the authenticity of the original or
where it would be unfair to admit the duplicate.
Best Evidence Doctrine in Operation
1. Best Evidence Doctrine applies only when a party seeks to prove "the content" of a writing.
2. Two Situations Where the “content” is sought to be proved:
a. Substantive law forces content of a writing into prominence, requires one party to
prove content
 E.g. Parole evidence rule or the statute of frauds requires writing to be
produced.
b. Party chooses to prove content, even though might proceed without such proof.
 E.g. If the defendants want to use a police report to prove something, then
defendant must offer the report itself.
3. Many cases in which it might appear at first glance that the Best Evidence Doctrine applies,
but in fact it does not.
a. Most of these cases where the Best Evidence Doctrine does not apply are commonly
described as situations in which the matter to be proved has been "incidentally
recorded," but in which neither substantive law nor party strategy actually forces the
writing into prominence.
4. If witness has knowledge independent of contents of a writing, Best Evidence Rule is not
violated. Meyers.
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H. Production of Original Excused (924)
1. Summary may be admissible where original cannot conveniently be examined by court, but
when summary is offered. FRE 1006.
a. Opponent must make original available to opponent, or at least make reasonable and
diligent search, in order to allow the opponent to assess the validity of the summary
2. FRE 1004 recognizes two categories or unavailability that justify proof by secondary
evidence.
a. Original is Lost/Destroyed.
b. Original is Unobtainable by any available judicial process or procedure.
3. Search must be thorough and methodical, must search every place where there is a reasonable
possibility that document might be found, not necessarily everywhere.
4. FRE 1004(3) sets up a procedure that permits use of secondary evidence of contents when
writing, recording, or photograph is under the control of the opponent and the opponent is on
notice, by pleadings or otherwise, of the party’s intent to prove the contents at the hearing.
May secondary evidence of the content of a writing be admitted where the proponent fails to
present sufficient evidence showing that the original is not available and a diligent search was
performed to find the original without success? NO, court must make determination that original is
truly unavailable and whether proponent conducted a true good-faith search for original with no
success.
If court does not make these determinations, & proponent showed no evidence he made a real
search
Evidence must demonstrate original is unavailable before getting around Best Ev. Rule
If non-OG evidence offerd is central to the case, error is prejudicial and new trial required
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