中国政法大学《证据法学专业英语》课程大纲
一、课程基本情况
课程名称
证据法学专业英语
所属专业
证据法学
课程类型
学科方法论
学 分 数
2
教学时数
36 学时，周 4 课时，9 次课
课程负责人
汪诸豪
课程教学团队
汪诸豪
专业学位课
专业限选课
√选修课
二、课程目标和任务
本课程将尝试以英文及美国法学院传统授课方式为中国学生讲授美国证据法中
的各经典部分。期间将会对关键英文词汇、概念和思路时时辅以中文讲解，以便
学生更好的理解和掌握知识点。
本课程设置意在培养学生跳过翻译环节而直接以英文去思考美国证据法原理和
问题的能力，以及无障碍阅读和学习证据法英文原版书籍的能力。在这个训练过
程中，相信学生的证据法专业英语能力会随之得到提升。
三、课程基本要求
参考书目：
 Arthur Best: Evidence, 8th edition, EXAMPLES & EXPLANATIONS（英文原
版）
 Emanuel: Evidence, 8th edition, Emanuel Law Outlines（英文原版）
 罗纳德·J.艾伦等著：《证据法—文本、问题和案例》（第 3 版），张保生、
王进喜、赵滢译，满运龙校，高等教育出版社。
 《美国<联邦证据规则>（2011 年重塑版）条解》，王进喜著，中国法制出
版社，2012 年版。
教学模式：采用中英文轮讲模式，双语向学生灌输证据法的专业词汇、概念和知
识点，以及思考分析证据法各种问题的路径。具体而言，在用英文讲授一段美国
证据法的知识后（约 15 分钟），将返回再用中文对其进行解释，强调其中的关键
英文专业词汇、概念、知识点和问题分析路径，以确保学生领悟本小节英文讲授
的内容。随之，将当场辅以相关知识点内容的英文思考题，鼓励学生用英文读题、
分析思考和作答，以便及时检验学生的学习效果。课堂上鼓励学生随时提问，积
极回答问题 。
评分标准：成绩由三部分组成：（1）课堂参与（30%）；（2）作业（30%）；（3）
1
期末考试（40%）。“期末考试”由 20 个名词解释（英翻中 10 个、中翻英 10 个）
和 30 道客观题（单项选择题）两部分组成。期末考试时间安排在第九周开卷随
堂考。“课堂参与”部分由授课教师综合全学期课堂上随机盲点学生回答问题情况
酌情给分。每位学生在整学期中都会被教师一次或多次点名回答问题。课堂上主
动积极参与并勤提问的学生，授课教师将酌情加分（5%－10%）。教师布置的作
业需在指定截止日期前交回。逾期交作业，除非有特殊原因予以说明外，按未交
作业处理。
It is my responsibility and pleasure to guide you through the law of evidence during
nine weeks. During my lecture time, what I am going to do is to boil down for you the
basics of evidence. We cannot possibly to cover everything in the law of evidence.
But that's ok. Because this is not technically an evidence law course, but legal English
specialized in evidence. My goal here is to help you master important terminologies
and concepts of evidence in English. I am also going to assume that most of you have
already taken an evidence course in law school. So most of the material will sound
familiar to you. If it doesn't, well, that's why we are here.
In the lecture, I will cover the material in a logic way. Let me tell you right at the
outset that due to timing constraint, there are certain topics of evidence we will not
cover in the lecture, which are procedural considerations, presumptions, burden of
proof, and judicial notice, etc.
The lecture coverage will be divided into three major areas, which are: 1) relevance.
There are a lot of specific rules with respect to relevance. That is a big major topic. 2)
witnesses. And with respect to witnesses, we will cover forms of testimony, and we
will put a lot of emphasis on impeachment of witnesses. And 3) hearsay. We all know
the definition of hearsay, right? An out of court statement offered to prove the truth of
the matter in the statement. Of course, there are about a dozen of exceptions we have
to deal with as well.
Those three areas – relevance, witnesses and hearsay comprised of big majority of the
evidence questions. So that's what we will emphasize in the course. In addition, I will
digress a couple of times. One time I will digress in order to cover few rules
concerning writings. Then, there will be a second digression later concerning
privileges.
You know that on the federal level, it's the Federal Rules of Evidence that govern.
And there are only few distinctions between federal evidence law and state evidence
law. So, unless I point out the distinction, you can assume safely that the state law is
the same as the federal law in evidence.
四、课程内容、教学要求
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第一讲 Relevancy – Part One
【本讲关键词】
Relevance – 相关性
Leading questions – 诱导性问题
Admissibility – 可采性
Impeachment – 弹劾
Probative Value – 证明力
Rehabilitation – 正誉
Character Evidence – 品性证据
Privileges – 特免权
Authentication – 鉴真
Hearsay – 传闻证据
【本讲基本理论】
1. Evidence is RELEVANT if it has ANY tendency to make a material fact
MORE PROBABLE or LESS PROBABLE than would be the case
without the evidence.
相较于没有证据而言，如果证据具有任何程度的趋向性使得某项待证
事实的存在变得更有可能或者更不可能时，那么该证据便具有相关
性。
2. All relevant evidence is admissible, unless: 1) there are some specific rules
that require exclusion, or 2) if the judge makes a discretionary
determination that the probative value is substantially outweighed by
pragmatic reasons.
所有具有相关性的证据都具有可采性，除非 1) 适用某些特定的排除
规则，或者 2) 审判法院行使自由裁量权认定该证据的证明价值实质
上小于现实中顾虑。
3. Judges have wide discretion to balance probative value with pragmatic
considerations and the determination will be fact specific. Separately,
unfair surprise is NOT a reason for pragmatic consideration.
在权衡比较证明价值和现实顾虑的问题上，审判法官拥有自由裁量
权，且最终结果就案件具体情形而论。此外，不公平的意外并非现实
顾虑的因素。
4. There are some specific rules of exclusion of evidence that otherwise is
relevant but for some reason of policy we feel it is more important for
being excluded. Featured policy-based exclusions include 1) liability
insurance, 2) subsequent remedial measures, 3) settlements in civil cases,
4) offer to pay hospital or medical expenses, and 5) pleas and plea
discussions in criminal cases.
有一些具体的证据排除规则，其中证据具有相关性，但是基于某些政
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策考虑，我们认为排除该些证据则更为重要。有代表性的政策性排除
规则包括：1）责任保险，2）事后补救措施，3）民事案件的和解，4）
提议支付医疗费用，及5）刑事案件中的答辩和辩诉讨论。
【教学目的与要求】
希望通过本讲内容的讲授，使学生熟悉对证据相关性原理和政策性排除规则
基本原理的英文描述，掌握关键英文用法和专业词汇。
【主要内容】
一、知识要点
Relevance is always the starting point. When you face an evidence question,
relevance is the first issue worth to be considered, which will help focus your
attention to a particular issue the evidence is addressed. Because almost all evidence
doctrines turn on relevance of that evidence to a particular issue.
Now, our first fundamental principle in the law of evidence is that: in general, all
relevant evidence is admissible. What do we mean by “relevance”? It is a very easy
standard to satisfy. Here it is. Evidence is relevant if it has any tendency to make a
material fact more probable or less probable than it would be without the evidence.
That is the standard. Does it help logically to establish the existence or non-existence
of a fact? Anything that logically helps to establish the existence or non-existence of a
fact… For example, a person comes inside from outdoor wearing a raincoat that is
wet. That is relevant of course to establish that it is raining outside. There might be
other inferences that one might draw. But that certainly is one logical inference that
could be drawn.
But now, we come to the second fundamental principle of evidence. We say that
all relevant evidence is admissible, generally. But now we come to a qualification. All
relevant evidence is admissible, unless: 1) there are some specific rules that require
exclusion, or 2) if the judge makes a discretionary determination that the probative
value is substantially outweighed by pragmatic reasons.
So, you see there are two
grounds for exclusion of evidence. That's why we have nine weeks here to talk. The
first ground for exclusion, some specific rules, is going to consume most of our time
during our three major sections together.
As to the second ground, the discretionary exclusion for pragmatic reasons
requires a balancing test. The judge balances the probative value of the evidence
against six pragmatic considerations that might, in given cases, substantially outweigh
the probative value of the evidence. In this context, probative value is interchangeable
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with relevance. We switched to probative value, because that implies the weight and
strength of the evidence. We balance weight and strength of the relevance against
those pragmatic considerations.
Then, we turn to some so called “POLICY BASED” exclusions, some specific
rules of exclusion of evidence that otherwise is relevant but for some reason of policy
we feel it’s more important that be excluded. Mixed with policy-based rationale, you
find also some pragmatic considerations at work. So, not just policy, there are also
some pragmatics involved. And we have four featured specific exclusionary rules here.
1) liability insurance, 2) subsequent remedial measures, 3) settlements, and 4) offer to
pay hospital or medical expenses.
Liability Insurance: Evidence of a person having liability insurance is not
admissible to prove a person’s fault or absence of fault or the ability or inability to pay.
Exception 1: it is admissible if liability insurance is to show ownership or control of
an instrumentality or a location, if ownership or control is contested. Exception 2:
with respect to admissibility of liability insurance is where it is admissible to show the
bias of a witness, where liability insurance is relevant to impeach the credibility of a
witness because they are bias.
Subsequent Remedial Measures: Witness being in an accident, subsequent
remedial measures by the D are not admissible to show negligence, or culpable
conduct. Exception 1: SRMs are admissible to prove ownership or control where
ownership or control is contested. Exception 2: SRMs are admissible to show the
feasibility of precautionary measures, provided feasibility is being contested.
Settlements: Evidence of a settlement or compromise of a claim that is disputed
as to liability or amount is not admissible as a concession of liability or of damages.
In addition, it also excludes evidence of an offer to settle or compromise of a disputed
claim. To make it broader, the rule also excludes statement of fact made during the
course of settlement or compromise discussion or negotiation.
Offer to Pay Hospital or Medical Expenses: Offer to pay hospital or medical
expenses would be excluded from being evidence. It cannot be used as an admission
of fault by defendant.
二、问题研讨
1. What do we mean by “relevance”?
2. What are the six pragmatic considerations that the judge might balance against
relevance?
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3. Witness being in an accident, subsequent remedial measures by the defendant
are not admissible to show negligence, or culpable conduct. Why is that? Is it because
SRMs are irrelevant?
4. Why the policy-based exclusion rule regarding settlement is so broad?
三、文献阅读(optional)
 Chapter 3 and Chapter 6, Evidence: Text, Problems, and Cases (Third
edition, Ronald J. Allen)
第二讲 Relevancy – Part Two
【本讲关键词】
Character evidence 品性证据
Self-defense 自卫
Propensity 倾向性
Good faith 真诚
Disposition 性情
Sexual misconduct 性侵犯
Trait 特征
Promiscuity 滥交
Occasion 情境
Physical evidence 实物证据
Veracity 真实性／真诚度
Due Process right 正当程序权利
Rebut 反驳
Defamation 损毁名誉
Reputation 名声
Occurrences 事件
Opinion 个人看法
Causation 因果关系／成因
Specific acts 具体行为
Standard of care 注意标准
【本讲基本理论】
1. Character evidence refers to a person’s general propensity or disposition, e.g.,
the character traits of honesty (or dishonesty), peacefulness (or violence),
carefulness (or carelessness).
品性证据指某人的基本倾向或性情，例如：诚实（或不诚实）的性格
特征，温和（或暴力）的性情，认真（或不认真）。
2. A simple rule basically, no character evidence is allowed in civil cases as
circumstantial evidence to infer conduct.
基本原则：民事案件中品性证据不得作为间接证据来推测行为。
3. In criminal cases, no bad character evidence in any form may be introduced
by the prosecution to infer that the Defendant, because of his criminal
propensity, is more likely to have committed the crime within which he is
currently charged.
在刑事案件中，检控方不得引入任何形式的不良品性证据来推测：被
告，由于其犯罪倾向，因此更有可能是当前指控的凶手。
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4. EXCEPTION: In a criminal case, the defendant has the option of introducing
evidence of good character as circumstantial evidence to infer that he did
not commit the crime with which is charged. It is the defendant and only
the defendant that has the option. BUT, if defendant excises this option,
then the prosecution on rebuttal can introduce evidence of the
defendant’s bad character.
例外规定：在刑事案件中，被告有权选择向法庭出示有关其优良品性
的间接证据用以推断其未实施当前被指控的犯罪。仅被告有此项选择
权。但是一旦被告行使了这项选择权，检控方便随即有权出示有关被
告不良品性的证据作为反驳。
5. In any case alleging sexual assault or child molestation, the prosecution may
offer evidence of the defendant’s PRIOR SEXUAL ASSAULTS for the
purpose of proving the defendant’s PROPENSITY TO COMMIT
SEXUAL ASSAULT.
在涉及性骚扰或猥亵儿童罪指控的任何案件中，检控方可以出示被告
先前性骚扰的证据，以证明被告性侵犯的倾向性。
【主要内容】
一、知识要点
Character evidence: this is a very important part of relevance. The Questions
being extended to which evidence of a person’s character can be used as substantive
evidence to prove some disputed fact in the case. Can we use evidence about a
person’s character to prove some substantive disputed fact in the case? And the
trouble here is not so much in learning a rule. It is much in applying that.
First of the preliminary questions: purpose. Ask yourself: for what purpose is the
character evidence being offered? There may be any one of the three possible
purposes. Possible purpose No. 1: if character of a party is directly in issue as one of
the material elements of a case. Purpose No. 2 is the more common one – character as
circumstantial evidence of conduct on a particular occasion. The person’s character is
not a direct issue in the case, but you are trying to prove how the person acted on a
particular occasion based on their general character. You are trying to show their
conduct conforms with their character. And we call that character as circumstantial
evidence of conduct on a particular occasion. Purpose No. 3: the use of character
evidence to impeachment the credibility of a witness. That is not a substantive use of
character evidence. That is an impeachment use. This is a very narrow type of
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character evidence. It only deals with credibility. Our main concern today will be
Purpose No. 1 and No. 2, where character evidence is being used as substantive
evidence in the case. So, our first preliminary question is: WHAT IS THE PURPOSE
of the character evidence being offered for.
The second preliminary question: method – what method can be used to prove a
person’s character. How do you prove a person’s honesty? Or gentleness? Or
peacefulness? Or violence? What form of evidence can be used to prove character?
There are three possibilities. I am not saying you can use all three of them. Just being
aware that there are three possible ways to prove character. Method No. 1: specific
acts of conduct – by the conduct of a person you might be able to infer some thing
about their character. For example, the trait of gentleness – whether or not a person is
gentle. If you prove H refused to fight F on six separate occasions when F called H a
girlish man. And H backed off to refuse to fight. Those six specific instances tend to
show that H has a gentle character. Method No. 2: opinion testimony – you call a
witness to get her personal opinion about the individual whose character you are
trying to prove. Method 3: reputation – you call a witness to testify to the reputation
of the person whose character you are trying to prove.
The third preliminary question: civil or criminal case – ask yourself is this a civil
or criminal case, because rules on character evidence differ radically depending on
whether it is a civil or criminal case.
The fourth preliminary question: what trait of character is in issue. We don't
allow character evidence in the abstract – a person is a good or bad person. We are
dealing with specific character traits – character traits that are in issue in the particular
case.
二、问题研讨
1. If defendant excises the option of introducing evidence of good character as
circumstantial evidence to infer that he did not commit the crime with which is
charged, then the prosecution on rebuttal can introduce evidence of the defendant’s
bad character. Why even let the prosecutions do this? What is the purpose here?
2. What about the victim’s character in a criminal case? This issue comes out in a
self-defense case, with the defendant in fact admits he committed an assault but he
was acting in self-defense.
三、文献阅读
 Chapter 5, Evidence: Text, Problems, and Cases (Third edition,
Ronald J. Allen)
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第三节 Authentication of Writings and Best Evidence Rule
【本讲关键词】
Authentication 鉴真
Genuine 真实／正品
Laying a foundation 基础铺设
Self-authenticating 免鉴
Personal knowledge 亲身知识
Certified copies 经认证副本
Handwriting 笔迹
Acknowledged/
Lay opinion 外行意见
Notarized document 公证文件
Expert opinion 专家意见
Commercial paper 商业票据
Ancient document 古旧文件
Demonstrative evidence
Solicited reply doctrine
展示性证据
应求回复原则
Best Evidence Rule 最佳证据规则
Conditional relevance
Legally Operative Documents
有条件相关性
具有法律效力的文件
Preponderance of evidence
Original writing 书证原件
优势证据
Secondary evidence 辅证
Collateral document
附带性文件
【本讲基本理论】
1. The fundamentals of Authentication: If the relevance of a writing depends
upon its source or authorship, a showing must be made that the writing is
authentic (genuine), i.e., that it is what it purports to be. The process of
authentication – of proving that a document is genuine – is called “laying
a foundation”.
鉴真基本原则：如果一份书证的相关性取决于其来源或作者，则必须
要证明其真实的（正品），如，展示确为正品。证明文件确为正品的
鉴真过程被称作“基础铺设”。
2. Authentication is a matter of “conditional relevance”, which means that the
party offering the evidence must produce SUFFICENT evidence for a
REASONABLE JUROR to conclude that the document is genuine.
鉴真是一个“有条件相关性”的问题，意味着提供证据的一方必须呈
交充分证据以便理性陪审团能够得出结论：该份文件是真实的。
3. Best Evidence Rule: a party who is seeking to prove the term of a writing
must either produce the original document, or provides a satisfactory
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excuse for its absence. If the party has a satisfactory excuse for not
having the original writing, then, a foundation has been laid for the use of
secondary evidence. And secondary evidence could be either a copy, or
oral testimony.
最佳证据规则：寻求证明书证中内容的一方当事人必须要出示原件，
或者提供原件缺失的合理解释。若一方当事人对原件缺失有着合理解
释，那么使用辅证的奠基已完成。辅证可以是副本，或是口头证言。
【主要内容】
一、知识要点
Relevance of writing depends on its authorship. Writing is not admissible until it
is authentic. That means preliminary proof must be presented, showing the writing is
genuine. In other words, the writing really is what it is purported to be. That is what
we mean by genuine. For example, the issue is whether Bill Gates made a written
offer for a contract. The document that is introduced into evidence as that offer is not
relevant unless we establish that it was in fact an offer from Bill Gates. Now, in the
real world, lawyers often stipulate that a particular document is genuine, and that
eliminates the authenticate issue. So, in the absence of a stipulation, the basic rule is
some testimonial evidence must be introduced to show the document is genuine. This
is also called laying a foundation. How to do that? Lots of possibilities. It could be
either direct evidence, or circumstantial evidence.
Let’s take a look of the primary examples of direct evidence. The first one is an
admission by the author on the witness stand. Another way to do it is testimony from
any witness who saw the author signed the document. This could be anyone who saw
him signed it, including one of the parties to the litigation. There are few more ways
that the document can be authenticated. The next one involves proof of handwriting.
And the three ways of proving handwriting are: No. 1 – lay witness opinion, No. 2 –
expert comparison, or No. 3 – jury comparison.
Everything we have talked up to this point with respect to the methods of
authentication has involved examples of direct evidence. Now, we have a couple of
examples of circumstantial evidence of authentication. And two common examples of
circumstantial evidence are: FIRST – the “ancient document rule”. What does it take
to become an ancient document? Twenty years or more in age, any document that is
20 years old or more is considered ancient document in federal courts. The SECOND
example of circumstantial evidence of authentication is called the “solicited reply
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doctrine”. Here is the rule: a disputed document can be authenticated by evidence that
it was written in response to a prior communication to the alleged author.
There are also six kinds of so-called – self-authenticating documents. These are
documents that are deemed authentic on its face, and therefore, we require no
testimonial foundation whatsoever. No. 1 – certified copies of records on file in a
public office, such as deed on file with the county clerk, that is self-authenticating; No.
2 – official publications, such as a pamphlet regulation from the state environmental
authority; No. 3 – newspapers or periodicals. No. 4 – trade inscriptions, signs tags, or
labels, at fixed course of business, an indicating of ownership or control. No. 5 – an
acknowledged document. An acknowledged document is a document the author has
appeared before the notary public to acknowledge that she is in fact the author of the
document. The notary public then adds a written certification right on the writing,
indicating that author has acknowledged her authorship. Finally, No. 6 is commercial
paper – specifically, signatures on commercial paper as provided by the uniform
commercial code (the UCC).
The Best Evidence Rule applies only to writings. Calling it a “Best Evidence
Rule” is really a misnomer, because the rule does not require that as to all matters of
evidence – that the most persuasive, or most direct form of evidence being introduced
into the court. The best evidence rule is a narrow rule that requires only to writings.
But, I should say here that writings are liberally defined to include not only
documents, but also sound recordings, x-rays, films, and photographs. That’s what I
mean by writings, liberally defined.
Here is the RULE: a party who is seeking to prove the term of a writing must
either produce the original document, or provides a satisfactory excuse for its absence.
The second part of the RULE: if the party has a satisfactory excuse for not having the
original writing, then, a foundation has been laid for the use of secondary evidence.
And secondary evidence could be either a copy, or oral testimony.
二、问题研讨
1. For example, the issue is whether Bill Gates made a written offer for a contract.
Donald Chump suing Bill Gates for breach of a written contract. Gates admits nothing.
So, he does not even admit he executed the contract. Chump says: but look, I have the
written contract here. And Chump says to the judge: judge, you got to let this in. The
evidence looks good on its face, and Bill’s signature is right there at the bottom.
Should Chump’s evidence of written contract be admitted? Why?
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2. How much evidence is needed to get this document admitted as evidence? And
who decides if the document is genuine?
3. Any witness who has personal knowledge on Gates’ handwriting can give an
opinion that the handwriting on the document in question is that of Gates. How does
lay witness get personal knowledge? How does lay witness not properly gain personal
knowledge?
4. Why do we have the best evidence rule? What qualifies as an “original”
writing? When will non-production of the original be excused?
三、文献阅读
 Chapter 4 and Chapter 9, Evidence: Text, Problems, and Cases (Third
edition, Ronald J. Allen)
第四节 Witnesses
【本讲关键词】
Testimonial Evidence 证言性证据
Memorandum 备忘录
Competency of Witness 证人资格
Perception 感知
Take oath 当庭宣誓
Sobriety 清醒
Dead Man Statute 逝者规则
Lay witness 普通证人
Legally binding effect
Methodology 方法
法律上约束力的影响
Daubert standard 多博特案标准
Leading questions 诱导性问题
Ultimate issues 最终争点
Waiver 豁免
Reliability 可靠性
Interested 有利益关联
Learned treatise 论著
Oral testimony 口头证言
Authoritativeness 权威性
Hostile witness 敌意证人
Exhibit 展示件
Present recollection 当前回忆
【本讲基本理论】
1. Competency refers to the testimonial qualifications of the witness. There are
four basic testimonial qualifications that a witness must possess. First,
the witness must have personal knowledge of whatever it is she is
testifying to. Second, memory – the witness must remember some of
what she observed. Third, communication skills– the witness must be
able to communicate at least some of what she observed. Four,
sincerity/duty to tell the truth – the witness must demonstrate an
12
appreciation of the duty to tell truth.
证人能力指的是证人的作证资格，必须满足四项基本的作证资格。首
先，证人必须就其作证的事项具有亲身知识。第二，记忆力——证人
必须记得一些她曾观察到的内容。第三，沟通的技能——证人至少要
能说出一些她曾观察到的内容。第四，说真话的真程度／责任——证
人必须要表明她会在法庭上说真话。
2. Witness has to fulfill the above four qualifications, but it does not need to be
perfect. A person does not need to have 100% of all those qualifications
and if there are weaknesses, well, that’s why we have cross-examination
and impeachment.
证人必须要满足以上四项资质，但其品质无需完美。某人不需要百分
百达到该些资质，且若存在弱点，这正是为什么还存在交叉询问和证
人弹劾制度。
3. The form for examining witnesses is largely a matter of judicial discretion.
But there are some fixed rules. Generally a witness answers pursuit to
questions raised by a lawyer. It is a Q&A between the lawyer and witness
on the stand, including direct-examination and cross-examination. During
the witness’s direct examination, the general rule is leading questions are
not allowed. On cross-examination, leading questions are generally
allowed.
询问证人的方式主要是一个司法自由裁量权问题，但也存在一些固定
规定。一般来说，证人询问是一个证人回答律师提问的过程，包括直
接询问和交叉询问。在直接询问中，通常诱导性问题是不允许被提出
的。在交叉询问中，通常允许提诱导性问题。
4. Lay Witness – Lay opinion is admissible if two requirements are met: No. 1 –
the opinion must be rationally based on the perception of the witness.
Basically that means the lay witness must have personal knowledge. No.
2 – the lay opinion must be helpful to the trial of fact.
普通证人——若满足以下两项要求，普通证人意见具有可采性：首先，
证人意见必须合理地基于证人感知。通常这意味着普通证人需具有亲
身知识。第二，普通证人意见需对事实认定审理有帮助。
5. Expert Witness – three requirements for expert opinion: First Requirement –
the subject matter must be proper for expert testimony. Second
requirement for expert testimony is the witness must be qualified as an
13
expert. The qualification of the expert has to match up with the subject
matter that the expert was testifying. Qualification can be derived from
education, or training, or experience. The third requirement is the opinion
must be supported by a proper factual basis.
专家证人——若满足以下三项要求，专家证人证言具有可采性：首先，
案件的争议必须适合专家作证；其次，证人资格必须适格，专家资格
与待证事项所涉领域必须一致。资专家质的取得可以通过教育、培训
或经验。第三，专家意见须有合适的事实性基础支撑。
【主要内容】
一、知识要点
Competency refers to the testimonial qualifications of the witness. There are four
basic testimonial qualifications that a witness must possess. If this witness has these
four qualifications, then the general rule is the witness is competent to testify. Here
they are:
 First, the witness must have personal knowledge of whatever it is she is
testifying to.
 Second, memory – the witness must remember some of what she observed.
 Third, communication skills– the witness must be able to communicate at
least some of what she observed.
 Four, sincerity/duty to tell the truth – the witness must demonstrate an
appreciation of the duty to tell truth. How does demonstration be made? The
witness must either take an oath, or give an affirmation. An affirmation is
simply a solemn promise to tell the truth without invoking any sort of defining
or Supreme Being. So for person with religious reason has objection to take
an oath, she can simply give an affirmation as a substitute. But either way,
either its an oath or an affirmation, it becomes what we called sworn
testimony. And under the federal rules, all testimony in court must be sworn
testimony, civil and criminal.
We say the witness has to fulfill the above four qualifications, but it does not need
to be perfect. A person does not need to have 100% of all those qualifications and if
there are weaknesses, well, that’s why we have cross-examination and impeachment.
To the extent there are weaknesses in a person’s eyesight for example, we can bring
that out by means of impeachment on cross.
Opinion testimony – you got two different types of witnesses that may give an
opinion, from a lay witness or expert witness. The standard for opinion testimony
from a lay witness is very easy…lay opinion is admissible if two requirements are met:
No. 1 – the opinion must be rationally based on the perception of the
witness…basically that means the lay witness must have personal knowledge. No. 2 –
the lay opinion must be helpful to the trial of fact. For example, lay opinion on
handwriting….another example is a lay witness observed perpetrate of a crime…she
takes the stand and she says: I saw the defendant with an angry look on his face. You
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may give lay opinion about somebody’s emotional state...you can smell alcohol on his
face…and he looks as though he was drunk...the speed of a moving vehicle. There
might be a situation where the witness does have personal knowledge, but the opinion
would not be helpful. For example, we don't allow a lay witness to testify by using
legal terminology, like…he seems driving NEGLIGENTLY. That is the ground for
objection – it is not helpful.
Expert witness – when you get an opinion from an expert. You main focus here is
simply to get a feel on the terminologies. We can boil down for three requirements for
expert opinion. No. 1 – proper subject matter. No. 2 – proper qualifications….No. 3 –
proper basis for the opinion. First, the subject matter must be proper for expert
testimony. This requirement subdivides into two components – No. 1 – the opinion
must be helpful to the find finder in determining a disputed issue. And No. 2 – the
methodology used by the expert must be reliable and this methodology must be
applied in a reliable way to the facts of a particular case. However, when it comes to
scientific evidence, federal law has a special requirement on the reliability component.
The federal law is not govern by the general acceptance standard. With respect to a
scientific evidence, a federal judge must independently determine whether the
particular scientific evidence is reliable. The federal judge here must serve as a
gatekeeper. For example, in a medical malpractice action. P died at a heart attack, his
representative claimed it was caused by the medication prescribed by his doctor. The
medication that supposed caused the heart attack was Biologria. The issue is causation.
P’s representative calls his expert witness – Doctor B who proposed to testify
Biologria causes heart attack. Now, in this situation, federal judge here needs to
analyze closely and decide for herself whether Doctor B used theory based on a valid
scientific methodology. Well, what general scientific community says could be an
affecter, but it is not decisive. But in some states, general scientific community
standard counts and is decisive.
Second requirement for expert testimony is the witness must be qualified as an
expert. The qualification of the expert has to match up with the subject matter that the
expert was testifying. Qualification can be derived from education, or training, or
experience. So, in other words, it depends on the subject matter…a formal academic
degree is not required. I should add here that it is the judge who makes preliminary
determination…the judge decides whether the proper subject matter, proper
qualifications…and the third requirement that is proper basis for the opinion.
The third requirement is the opinion must be supported by a proper factual basis.
No. 1 – facts within the personal knowledge of the expert… Or No. 2 – facts which
are supplied to the expert in court by the evidence in record. Those are the two
traditional proper basis for the expert opinion. No. 3 – an expert may base his opinion
in part on facts that are outside the record, including hearsay, provided those facts
recently replied on by experts in that field in making out-of-court professional
decisions.
二、问题研讨
1. We say the witness has to fulfill the above four qualifications, but it does not
15
need to be perfect. Why is that?
2. Based on Federal Rules of Evidence, do children have competency to testify?
What is the rationale?
3. Witness cannot come in court and read a previously prepared statement. Why
not?
4. During the witness’s direct examination, the general rule is leading questions
are not allowed. Why is that?
5. What is a leading question?
Attorney says: “Witness, did you hear the
screaming of a woman who sounded as though she was scared with fright, or did that
sound something else?” Does this a leading question? Why, or why not?
三、文献阅读
Chapter 2 and Chapter 4, Evidence: Text, Problems, and Cases (Third edition,
Ronald J. Allen)
第五讲 Impeachment and Rehabilitation
【本讲关键词】
Impeachment 弹劾
Hearing 听审 Deposition 询证存录
Rehabilitation 正誉
Grand Jury 大陪审团
Misrepresent 虚假陈述
Veracity 真诚度
Sensory Deficiencies 感官缺陷
DWI 醉酒驾车
Convictions 定罪量刑
Collateral 附属性的
Contradiction 自相矛盾
Identification 指认
Intrinsic Impeachment 内源性弹劾
Bolstering 鼓吹
Extrinsic Impeachment 外源性弹劾
Hearsay Exception 传闻例外
Materially inconsistent 严重不符
【本讲基本理论】
1. FRE 608(a) permits a party to impeach the credibility of a witness by
offering extrinsic evidence in the form of opinion or reputation testimony
about the witness's character for truthfulness. The evidence must focus on
truthfulness, not general moral character.
《联邦证据规则》608(a)允许当事人通过提供关于证人诚实品性的意
见或声望证言等旁证，弹劾证人的可信性。该证据必须集中于诚实性，
而不是泛泛的道德品性。
2. FRE 608(a) permits reputation or opinion evidence offered to prove a
16
witness's good character for truthfulness only after the opposing party has
attacked the witness's character for truthfulness.
《联邦证据规则》608(a)规定，只有在对方当事人对证人诚实品性加
以攻击之后，才允许提出名声或意见证据来证明证人在诚实性方面具
有良好品性。
3. FRE 608(b)(1) permits the impeachment and rehabilitation of witnesses with
questions about the witnesses' own specific acts that show character for
truthfulness. The examiner is bound by the witness's answer to such
questions and may not introduce extrinsic evidence to challenge the
answer. FRE 608(b)(1) specific acts questions must relate to character for
truthfulness, and they are subject to exclusion on FRE 403 grounds.
《联邦证据规则》608(b)(1)允许用有关该证人自己的表明诚实品行的
具体行为的询问，来对证人进行弹劾和正誉。盘问者要受到证人对该
问题的回答的约束，不得提出旁证来对该回答进行质疑。《联邦证据
规则》608(b)(1)的具体行为提问，必须与诚实品性有关，并受到《联
邦证据规则》403排除规定的限制。
4. When an FRE 608(a) character witness offers opinion or reputation
testimony about another witness’s character for truthfulness, FRE
608(b)(2) permits the opposing party to ask the character witness about
specific acts probative of truthfulness that the other witness may have
committed. The purpose of the questions is to test the basis for the
character witness’s reputation or opinion testimony.
当《联邦证据规则》608(a)品性证人就另一个证人的诚实品性提供意
见或声望证言时，《联邦证据规则》608(b)(2)允许对方当事人询问该
品性证人，关于另一个证人可能做过的对于诚实性有证明力的具体行
为。这种询问的目的是，检验该品性证人的声望或意见证言的基础。
5. Prior inconsistent statements may be admissible for the non-hearsay purpose
of impeaching the credibility of a witness. FRE 613(b) provides that
normally a party may not introduce extrinsic evidence of a prior
inconsistent statement unless the witness has an opportunity to explain or
deny the statement and opposing counsel has an opportunity to question
the witness about the statement.
《联邦证据规则》613(b)规定，通常情况下当事人不能提出先前不一
致陈述的旁证，除非证人有机会解释或否认该陈述，并且对方律师有
17
机会就该陈述对证人进行询问。
6. Prior consistent statements offered to rebut an express or implied charge of
recent fabrication or improper influence are admissible for their truth
pursuant to FRE 801(d)(1)(B) as long as the statements were made before
the motive to fabricate arose. (Such statements were admissible at
common law only for the non-hearsay purpose of rehabilitating a witness.)
根据《联邦证据规则》801(d)(1)(B)，为反驳明示或暗示的有关最近
捏造或不当影响的指控而提供的先前一致陈述，可以为其真实性而采
纳，只要该陈述是在编造动机出现前作出的。（在普通法上，这样的
陈述仅仅为对证人进行正誉的非传闻目的才能采纳。）
7. Showing a witness's bias is relevant to impeach the witness's credibility,
because the bias suggests a particular reason or motive for the witness to
lie or at least be less than completely candid.
对证人成见的揭露，对于弹劾证人的可信性是相关的，因为成见说明
了证人存在撒谎或至少不能做到完全坦诚的特定原因或动机。
8. Proving a contradiction is relevant to cast doubt on the credibility of a
witness. FRE 401 and 403 govern the admissibility of evidence for this
purpose since there is no Federal Rule dealing specifically with
contradiction.
关于矛盾的证明对质疑证人可信性是相关的。由于没有具体规定自相
矛盾情况的《联邦证据规则》，
《联邦证据规则》401和403规制着为此
目的而提供的证据之可采性。
【主要内容】
一、知识要点
We are going to talk about Credibility of a Witness – whether the witness is
believable. That is such an important issue in a trial – the believability of a witness.
And it is important for the jury to know whether they should or should not believe a
witness.
Our first area of inquiry on the issue of credibility extends to issue that allows
bolstering or impeaching your own witness. The first question concerns to bolster the
credibility of your own witness – can you bolster the credibility of your own witness?
The answer is NOT until after there has been an actual attempt to impeach the
credibility of your own witness by one of the six-impeachment techniques. Here is the
exception: a witness’s prior statement of an identification of a person is admissible
even without a prior attack on that witness’s credibility.
Let’s talk about impeaching the credibility of your own witness. First of all, when
would you ever want to impeach your own witness? Well, there is always a turn code:
you expect your witness will give a favorite testimony and the witness double-crossed
18
you. Or you got a witness with facts you need to get into evidence, and somewhat of
the witness says is helpful to you but the rest of what she says is useless to you. And
you want to impeach the credibility respect to that stuff. The question is can you do it?
The federal rule is easy. Under the federal rule, you may freely impeach your own
witness for whatever reason that may be tactically helpful to you. And you may use
any of the impeachment techniques to impeach your own witness.
We are going to talk about the basic tech to impeach the credibility of your
opponent witness. Obviously, this is where impeachment has its biggest workout. You
want to impeach the credibility of your opponent’s witness. We have six impeachment
techniques that can be used to suggest in general that the witness is not worthy to
believe, either because she is likely to lie, or made mistakes. No.1 – prior inconsistent
statement, No.2 – bias or interest of the witness or motive to misrepresent, No.3 –
prior conviction of a crime, No.4 – prior bad acts that reflect adversely on the
witness’s truthfulness, No.5 – bad reputation for truthfulness. Impeachment Tech 3, 4
and 5 are all a form of attack on the witness’s character….And No.6 is sensory
deficiency. All forms of impeachment may be proven by extrinsic evidence, except for
Item No.4 – prior bad acts.
Prior inconsistent statement: a party may impeach the credibility of an opponent
witness by showing that at some point of the time, the witness made a statement that
is inconsistent with some portion of her testimony. The prior inconsistent statement
could be made at any circumstances, oral or written, formal or informal.
Bias: a witness might have a bias in favor of a party or against a party. Bias may
also come in through a form of having motive to misrepresent. Bias comes in many
forms. But fortunately, they are usually obvious.
Criminal Conviction: the theory is: a person who has been convicted of a crime is
more likely than ordinary people to testify falsely on the stand. They showed a
disregard of the rules of society, and therefore they are someone not likely to be
trusted. They don't take obligation to take oath very seriously. The federal rules are
complicated here. There are three parts of the rule. Part No.1 – conviction of a crime,
whether felony or misdemeanor, involving dishonesty or false statement, is usable to
impeach any witness in any case. The rule is automatic. The court has no discretion to
exclude. This is a blank rule applying to all witnesses. Part No.2 of the rule only
applies to crimes that do not involve dishonesty or false statement. Under this
category, the crime must be a felony, a felony that does not involve dishonesty or false
statement. It could be any type of felony, like homicide, rape, arson, bank robbery,
sale of narcotics, any felony. Under this rule, that sort of felony is usable. BUT HERE
IS A DISCRETION – the judge will balance probative value for purpose of
impeachment against the potential for unfair prejudice. Part No.3 – the conviction
whether it is under part one or part two generally cannot be used for impeachment, if
more than ten years have lapsed since the date of release from confinement. So, part 3
applies to both part 1 and 2. If it is more than ten years old, it is just too remote, as a
general rule. You can use extrinsic evidence to prove prior conviction. You can prove
it by certified copy of the conviction.
Bad Act Impeachment: what we are dealing here are specific acts that reflect
19
adversely on credibility or truthfulness. Specific acts that reflect adversely on
credibility or truthfulness may be inquired about on cross-examination of the witness,
even when those acts did not result in conviction.
Showing the Witness has a bad reputation for truthfulness: You can show that any
witness has a bad reputation for truthfulness. How do you do it? There is only one
way – through extrinsic evidence. And your extrinsic evidence is this: you call a
character witness to the stand. And your character witness will testify that the target
witness (the one you are trying to impeach) has a bad reputation for truthfulness in the
community.
Sensory Deficiency: Either on cross-examination or by extrinsic evidence, you
can seek to establish that the witness has any sensory of deficiencies that might affect
credibility.
Now we come back to your own witness. Remember we mentioned that you
cannot generally bolster your witness’s credibility unless and until your witness has
been impeached by the opponent. But let’s assume now your witness’s credibility has
been attacked as being impeached by your opponent. And now the question becomes
what can you do to rehabilitate your own witness. Here is the general principle: the
particular rehabilitation technique that you can use must be relevant to rebut the
particular type of impeachment.
二、问题研讨
1. At trial, can you bolster the credibility of your own witness? In other words,
can you do that to make one look like a truthful witness?
2. At what circumstance, you would ever want to impeach your own witness?
3. A party may impeach the credibility of an opponent witness by showing that at
some point of the time, the witness made a statement that is inconsistent with some
portion of her testimony. Is it a hearsay?
4. You can show that any witness has a bad reputation for truthfulness. How do
you do it? We don't allow a character witness explain her opinion is based on actual
experience with the ten bad acts of lie. Why?
三、文献阅读
Chapter 7, Evidence: Text, Problems, and Cases (Third edition, Ronald J. Allen)
第六讲 Privileges
【本讲关键词】
Federal diversity cases 联邦跨州案
Psychotherapist 心理诊疗师
件
Physical evidence 物证
Priest-Penitent privilege 牧师－信
Confidential 保密的
徒特免权
Joint clients 联合／共同客户
20
Waive 豁免
Retain 雇用
Professional legal consultation 专业
Estate 继承人
法律咨询
Counsel 律师顾问
Losing the privilege 特免权丧失
Good faith 真心诚意
Malpractice 玩忽职守
Operation room 手术室
Candor 坦诚
Disclosure 披露
Medical diagnosis and treatment 医
Immunity 免除／免疫
疗 诊 断 和 治 疗 Mental or Emotional
Domestic violence 家庭暴力
illnesses 精神或情绪疾病
Summon 传唤
Insanity 精神失常
Subpoena 传讯
Compel 强迫
Clerk 书记员
Paralegal 律师助理
【本讲基本理论】
1. The attorney-client privilege extends to confidential communications
between an attorney and client made for the purpose of obtaining legal
advice. The privilege does not cover communications made to a lawyer
for the purpose of obtaining any other kind of advice, such as business or
tax advice. Determining which is which is not always easy. The client is
the holder of the privilege, but the privilege may be claimed on behalf of
the client by the attorney and other individuals responsible for the client's
interests.
律师－委托人特免权，适用于律师与委托人为获得法律意见目的而进
行的直接秘密交流。该特免权并不涵盖向律师作出的为获得其他咨询
而进行的交流，例如商业或税务咨询。确定哪个是哪个并不总是那么
容易。委托人是特免权的拥有者，但律师或其他对委托人的利益负有
责任的人，可以代表委托人主张该特免权。
2. The attorney-client privilege extends to corporations, but there is not a simple
test to determine whether a communication is covered by the privilege. If
an employee makes a communication to a lawyer at the direction of a
superior for the purpose of obtaining legal advice for the corporation
about a matter relevant to the scope of the employee's corporate duties,
the communication is likely to be privileged.
律师－委托人特免权适用于公司，但并不存在一个简单的标准来确定
21
某个交流是否受特免权保护，如果某个雇员与律师的交流是根据其上
级的指示进行的，目的是就该雇员公司职责范围内的事项为公司获得
法律意见，该交流就可能受特免权保护。
3. Two privileges relate to the marital relationship.
One immunizes
confidential communications made during the marriage from disclosure;
it applies in civil and criminal cases. The other permits a spouse not to
testify (or permits the accused spouse from stopping the other spouse
from testifying) against the accused spouse in a criminal case. The
confidential communications privilege survives the marriage; the
testimonial privilege does not. Neither privilege applies in litigation
between the spouses, or involving accusations of criminal acts of one
spouse against the other.
婚姻关系涉及两个特免权。其中一个使得婚姻期间的秘密交流免于被
披露，这一特免权适用于民事和刑事案件。另一个特免权，允许配偶
在刑事案中不去作证来反对被控告的配偶（或允许被控告的配偶阻止
另一配偶的作证活动)。秘密交流特免权在婚姻关系终止后继续存在，
证言特免权在婚姻关系终止后即告终止。两个特免权都不适用于配偶
之间的诉讼，或关于一方配偶对另一方配偶的犯罪行为的指控。
4. Federal law recognizes a psychotherapist-patient privilege but not a
physician-patient privilege. Most states recognize both privileges. The
federal psychotherapist-patient privilege has been extended to all
physicians, psychologists, licensed social workers and a variety of other
mental health workers, when communications for the purpose of
diagnosis or treatment of a mental or emotional condition are made with
the reasonable expectation of confidence. If the patient presents a serious
danger of violence to self or to others, the therapist’s professional and
ethical duty to disclose a patient’s communication in order to protect
against this violence does not justify disclosure of the same
communication in a subsequent criminal proceeding.
联邦法律认可了精神诊疗师－患者特免权，但没有认可医生－患者特
免权。这两个特免权在大多数州得到了承认。联邦法律上的精神诊疗
师－患者特免权已经被扩展到了所有内科医生、心理医生、领有执照
的社会工作者和许多其他精神健康工作者，只要就精神或情感状况出
于诊断或治疗目的进行的交流，是在对保密有合理的期待的情况下进
22
行的。如果患者对自己或他人有严重的暴力危险，诊疗师的为了防止
该暴力而披露患者的交流的职业和道德义务，并不能成为在随后的刑
事诉讼中就该交流进行同样的披露的理由。
【主要内容】
一、知识要点
The Attorney-Client Privilege – every lawyer’s favorite privilege: the purpose of
this privilege is to encourage candor by clients. So the client will speak openly. The
attorney therefore will become familiar with the facts and thereby to render good legal
service. Here is the definition: confidential communications between an attorney or a
representative of an attorney and a client made during professional, legal consultation
are privileged from disclosure unless the client waives the privilege. The definition
tells us who are the proper parties to this privilege. First of all, you need to have an
attorney or a representative of the attorney, and you got a client, or someone is
seeking to become a client. So, what does representative of an attorney mean? This
would be anyone working with the attorney to facilitate the rendering of legal services.
So for example, the attorney’s secretary, the law clerk or a paralegal… What about
accountant? An accountant who has been retained is brought into the case to help
translate for the attorney complicated financial data. In that situation, the accountant is
included, if the accountant is facilitating rendering of legal services by the client.
Now, the concept of client includes someone is seeking to become a client. In
other words, the privilege begins to operate from the first communication between an
attorney and a potential client.
There must be a confidential communication and it is the client who must intend
that the communication be kept confidential. For example, you wouldn't have
confidentiality if you are standing with the client in an elevator and there are other
people in the elevator…and he is talking freely and openly about the matter. So,
everyone is the elevator can hear it. Or if he shouting to you in a restaurant, or at a
party where other people can clearly what the client says…there is no intent of
confidentiality there. Or, the client brings his next-door neighbor with him when he
comes to visit you about some legal matter…client is sitting there right beside a
neighbor when everything is being said. There is no intent of confidentiality there.
Now, we also say there must be a communication between the attorney and the
client. In other words, there is no privilege for physical evidence or pre-existing
documents. Another point to pay attention: the communication must be made during
professional legal consultation. What that means is the primary purpose of the
communication must be to obtain or the render legal advice or services. For if clients
come to you to notarize a document, that is not legal service. Or if the client comes to
you to witness her will, anybody can do that, which is not legal service. Just because
you are an attorney does not mean whatever you do for the client constitute legal
services. And in order for the privileges to apply, the communication must concern
primarily rendering or obtaining legal advice or services.
Here is a point on waiver. Remember the client is the holder of the privilege. That
means the client can waive the privilege by disclosing her communication with the
23
attorney to an outsider. In this context, also make a note that the privilege continues
beyond the death of the client. But at the point of death, the representative of the
client at estate steps into the client’s shoes, at that point, the representative would be
authorized to waive the client’s privilege.
Physician – Patient Privilege – the purpose of Physician-Patient privilege is to do
a couple of things: to encourage candor by the patient, as well as an element of
privacy. Here is the definition: the patient has the privilege against disclosure of
confidential information acquired by the physician in a professional relationship
where the purpose was to obtain medical treatment. The parties shall have a doctor,
including psychologist, and you got to have a patient. The patient is the holder of the
privilege, which means patient is the only one who can waive the privilege. Another
point: the patient must be seeking treatment. If it is a non-treating physician, there is
no privilege.
Now, here is the major exception to the physician-patient privilege. The privilege
is waived where the patient either expressly or impliedly puts his physical condition
in issue.
The Spousal Privileges – multiple privileges here for spouses. Two types of
spousal privileges have different rationales, thus different rules apply. We got to
distinguish between them.
First we have the spousal immunity privilege. Here is the definition: in a criminal
case, a spouse cannot be compelled to testify about anything against the defendant
spouse. That is the spousal immunity privilege. It applies only under the federal rules.
The second privilege – confidential marital communications privilege – is more
familiar. Here is the definition: a husband or a wife shall not be required, and shall not
be allowed in the absence of consent by the other spouse, to disclose a confidential
communication made by one to the other during the marriage. This one is narrower in
one sense, because it only applies to confidential communications between the
spouses. On the other hand, it is broader, because it applies in any type of case, civil
or criminal.
二、问题研讨
1. What does representative of an attorney mean? What about accountant who is
brought into the case to help translate complicated financial data for the attorney?
2. For example, you are an attorney. B came to your office and told you at privacy:
“I killed my wife C, will you take my case?” And you said: “No, I don't take spousal
homicide cases. Sorry.” So, B ran out of your office. Later on, B got indicted in a
grand jury proceeding for murder of his wife. And the grand jury had summoned you,
the attorney, to testify at the grand jury. And they want to force you to testify to what
B told you. They want you to reveal that to the grand jury. Can you be compelled to
do so?
3. If two or more clients communicate together with the lawyer about a matter of
common interests, then the privilege will apply to communications relating to the
24
common interests but the privilege applies only as against outsiders (third parties).
But, if the clients themselves have parted ways and get into a dispute between
themselves, then does the privilege still exist?
4. We say there must be a communication between the attorney and the client.
What about physical evidence or pre-existing documents? Does the attorney-client
privilege extend to those items?
5. Who is the holder of attorney-client privilege?
6. For example, patient goes for a doctor, and the doctor is examining the patient
solely for the purpose of litigation, solely for giving expert testimony for this patient,
the patient is a plaintiff in a personal injury case. DOES PRIVILEGE EXIST in this
situation?
7. The patient is sitting there having his chest exam and says: “hey, doctor, by the
way, I am wondering whether you know some good lawyer, since I have not paid my
income tax for the past three years.” DOES SUCH STATEMENT PRIVILEGED?
三、文献阅读
Chapter 13, Evidence: Text, Problems, and Cases (Third edition, Ronald J. Allen)
第七讲 Hearsay – Part One
【本讲关键词】
Out-of-court statement 庭外陈述
State of Mind 心理状态
Declarant 陈述人
Defamation 损毁名誉
Verbal Acts 言语行为
Consciousness of Guilt
Legally Operative Words
内疚的意识
有法律效力的文字
Repudiation of Contract
合同之废弃
【本讲基本理论】
1. Hearsay is a person's statement (a) that is made at a time other than while the
person is testifying at the hearing in which the statement is offered and (b)
that is offered to prove the truth of the matter asserted in the statement.
hearsay statement may be oral or it may be written. The primary
justification for excluding hearsay is that there is not an opportunity to
cross-examine the hearsay declarant to determine if there are sincerity,
25
narration-ambiguity, perception, or memory problems (the testimonial or
"hearsay dangers").
传闻是一个人的陈述，(1)该陈述是在听审作证之外的其他时间作出
的；并且(2)被提供用以证明该陈述中所主张事项之真实性。传闻陈
述可以是口头的，也可以是书面的。传闻政策是排除传闻，因为在确
定是否存在诚实性、叙述－歧义、感知、记忆问题（证言或“传闻危
险”）时，没有宣誓，没有对陈述人行为举止的观察，没有对传闻陈
述人进行交叉盘问的机会。
2. If a statement is offered to prove the sincere belief of the declarant in the
matter asserted, and then to prove the accuracy of that belief about an
event, then all four testimonial qualities of the declarant are involved in
the relevancy of the statement. If a statement made outside of court is
offered to prove the truth of what it asserts, it is defined as hearsay even
though the declarant is the witness who is testifying about the statement.
A hearsay objection is appropriate after determining that a witness does
not have firsthand knowledge of the events testified to, but is relying on
what others have said.
如果一项在庭外作出的陈述被提供用来证明其所主张事项之真实性，
则该陈述就被定义为传闻，即使陈述者就是该陈述作证的证人。在确
定证人对其所作证事件没有亲身知识，而是根据别人所说的来作证之
后，传闻异议是适当的。一些传闻陈述自身还包括有其他传闻。在这
种多重传闻的情况下，每个传闻成分都必须根据传闻例外或豁免才可
采纳。
3. When an out-of-court statement is offered to prove its effect on the listener,
or some legally operative fact, or some other matter where relevance
does not depend on inferences about the accuracy of declarant's belief
about an event, the statement is not hearsay. It is not offered for the truth
of the matter it asserts.
当一个庭外陈述被提供用以证明其对听者的影响、某些具有法律效力
的事实或其他某些其相关性并不取决于陈述人对某事件之信念的推
论的事项时，该陈述就不是传闻证据。它不是为了证明其所主张事项
之真实性而提出的。
Evidence of nonverbal conduct is sometimes offered to prove the
accuracy of the beliefs of the actor about events. If the actor is intending
26
to communicate that belief through her conduct, then the evidence is
defined as hearsay. The actor's testimonial qualities of sincerity,
perception, and memory are involved in the relevancy of the conduct. If
the actor is not intending to communicate her belief, then the evidence is
defined as not hearsay and is admitted to prove the truth of that belief,
even though the actor's testimonial qualities of perception and memory
are still involved. The question of the actor's intent is a preliminary
question of fact for the judge to decide pursuant to FRE 104(a). The
burden to persuade the judge on the question of intent is on the opponent
who is objecting to the admission of the actor's conduct as hearsay.
非言语行为证据有时被提供用以证明行为人就有关事件的信念的准
确性。如果行为人意欲通过行为来传达其信念，则该证据被界定为传
闻。行为人在诚实性、感知和记忆方面的证言品质都与该行为的相关
性有关。如果行为人并无意图传达其信念，则该证据就被界定为不是
传闻，因而可以采纳用以证明这种信念之真实性，即使行为者在感知
和记忆方面的证言品质仍然与此有关。对法官根据《联邦证据规则》
104(a)作出裁定来说，行为者的意图问题是一个预备性事实问题。就
意图问题说服法官的责任，由对行为人之传闻行为的采纳提出异议的
对抗方来承担。
4. Two types of utterances, according to the Advisory Committee Note, are
excluded from the definition of hearsay under FRE 801: non-declarative
utterances and statements that are offered to prove the truth of something
other than the literal matters they assert. When such utterances are
relevant to prove the truth of matters that are the subject of declarants’
unstated beliefs, they are not offered to prove the truth of the literal
matters they assert.
根据联邦证据规则起草咨询委员会的注释，两种类型的话语被排除在
《联邦证据规则》801的传闻定义之外：被提供用以证明其字面主张
事项外的某些事项之真实性的非主张性话语和陈述。当这种话语对证
明陈述人未申明信念之主旨事项的真实性而具有相关性时，它们并不
被提供用来证明其主张的字面事项之真实性。
【主要内容】
一、知识要点
The general rule excluding hearsay is one of the hallmarks of the
Anglo-American law of evidence. It establishes as a general proposition that when
27
statements are made by people outside of court, those statements are not admissible
when offered to prove the truth of the matters asserted therein.
Not all out-of-court statements are hearsay. A critical aspect of the definition of
hearsay is that the statements are offered to prove the truth of the matters they assert.
Many out-of-court statements are not offered for this purpose; they are offered for a
non-hearsay use.
Out-of-court statements offered to prove their effect on the listener are relevant in
many different kinds of cases. Liability under the substantive law often turns on the
reasonableness of a listener's response to warnings, notices, instructions, and threats.
In a civil rights action for an unwarranted shooting by police officers, brought against
the officers and their supervisors, prior complaints charging abuse by one of the
officers were not hearsay because they were offered to show the failure of the
supervisors to respond to the complaints. The effect of a statement can also be the
creation of a specific state of mind, such as knowledge, duress, good faith,
provocation, or reasonable apprehension of bodily harm. This state of mind may be
an essential element in a civil or a criminal case. Finally, statements made to a listener
can provide motive for conduct, and thus are relevant to explain the listener’s
subsequent behavior.
Another fairly common non-hearsay use for an out-of-court statement is when the
statement is itself a legally operative fact. For example, suppose Paul says to Sarah
outside of court, "I offer to sell you my horse for five hundred dollars." In an action to
establish that there was a contract for the sale of the horse, Sarah--or Paul or anyone
else who heard the words--could testify to what Paul said. Under the substantive law
of contracts, the words are themselves the event to be proved--the offer.
Many different kinds of statements are legally operative facts because principles
of substantive law give them immediate legal significance. For example, in litigation
concerning the exclusion of a group of insurance policy from ERISA coverage, the
policy is “excluded from the definition of hearsay...because it is a legally operative
document that defines the right and liabilities of the parties....” If information about
the context within which such statements were made is necessary, it can be supplied
by anyone who was there. Cross-examination of the declarant is not necessary to
supply it.
A proponent’s stock response to a hearsay objection in court is "not offered for its
truth, your Honor." That response will not satisfy a thoughtful judge or a well-trained
opponent. The proponent should be able to articulate what the out-of-court utterance
is offered for: for example, that it is offered for its effect on the listener (regardless of
its truth) and that its effect on the listener is a fact of consequence in the case. Finally,
the proponent should be able to show why exclusion as hearsay is not appropriate;
that is, why hearsay policy is not implicated. The critical step in this process is to
analyze why the evidence is relevant. If the evidence is relevant without reliance on
the declarant's testimonial qualities--that is, without a trip around the testimonial
triangle--it is not hearsay.
二、问题研讨
1. John and Mary Smith had a son, Brent, who was born on August 20, 1946.
28
John and Mary were killed in an plane crash, and their son, if he survived them, was
entitled to inherit their entire estates. In a probate proceeding in December 1988, an
individual offers to testify as follows to establish his right to inherit the assets of John
and Mary Smith: "My name is Brent Smith. I was born on August 20, 1946. I am 42
years old. I am the son of John and Mary Smith." Is any of this testimony
objectionable as hearsay?
2. As you examine the following problems, consider why the out-of-court
statements are relevant. Does relevancy depend (a) on the truth of the matter asserted?
(b) on inferences as to the accuracy of the declarant's belief about some event that has
occurred? (c) on inferences about the testimonial qualities of the declarant? In other
words, is the evidence hearsay or non-hearsay? Ignore the possibility that the
statement may fall within a hearsay exception and focus solely on the question
whether the evidence is hearsay.
3. Sondra Evers is suing Jones’ Deli for personal injuries sustained when she
slipped and fell on a pool of spilled ketchup near the food take-out counter. Sondra
claims that the ketchup had been on the floor long enough for Jones’ employees to
have known about it. Sondra calls Bertha Barlow, who offers to testify as follows:
"About an half an hour before Ms. Evers had her accident, I was walking past the
take-out counter when I overheard someone exclaim loudly “There’s ketchup on the
floor!" Should this testimony be excluded as hearsay? What if Bertha also testifies
that she saw a Jones’ Deli clerk near the take-out counter when she heard the
statement?
4. In a libel suit, plaintiff alleges that the defendant sent a signed, typewritten
letter to plaintiff’s employer stating that plaintiff was a liar and thief. Plaintiff offers a
photocopy of the letter into evidence, properly authenticated by the person who made
the photocopy from the original. Defendant objects that the letter is hearsay. What
result? Defendant then calls plaintiff’s former employer who will testify that plaintiff
lied on the job and stole from the company. Plaintiff objects that this testimony is
hearsay. What result? Finally, defendant calls Allan Brown, who offers to testify,
"Plaintiff has a reputation in the community for lying and stealing on the job." Is the
evidence hearsay?
三、文献阅读
Chapter 8, Evidence: Text, Problems, and Cases (Third edition, Ronald J. Allen)
29
第八讲 Hearsay – Part Two
【本讲关键词】
Party admission 当事人承认
Statement against interest 不利陈述
Present sense impression
Dying declaration 临死陈述
Former testimony 先前证言
Statement of then-existing mental,
Excited utterance 兴奋言论
emotional, or physical condition
Forfeiture by wrongdoing
第一时间留下的心理、情绪或身体
不法行为致弃权
状况陈述
Business and public record
商业或公共记录
【本讲基本理论】
1. Under FRE 801(d)(2)(A), any statement made out of court by a party may be
used against that party to prove the truth of the matter it asserts, so long
as it is relevant and not otherwise objectionable.
根据《联邦证据规则》801(d)(2)(A)，当事人所作的任何庭外陈述都
可用来反对该当事人，证明其所主张事项之真实性，只要该陈述具有
相关性，且未受到其他异议。
2. FRE 801(d)(2) also provides a hearsay exemption for: (B) statements adopted
by a party, or statements in which a party manifests belief; (C) statements
authorized by the party; (D) certain statements made by an agent or
employee of the party during the relationship and concerning matters
within the scope of the agent's employment; and (E) certain statements
made by a co-conspirator of the party during the conspiracy and in
furtherance of it.
《联邦证据规则》801(d)(2)还规定了传闻证据豁免如下：(1) 当事人
采认的陈述，或当事人表示相信的陈述；(2)当事人授权作出的陈述；
(3)当事人的代理人或雇员在该关系存续期间就代理或雇用范围内的
事项作出的特定陈述；(4)当事人的合谋犯罪人在合谋过程中为了促
进该合谋所作的特定陈述。
3. Generalizations about the lack of sincerity and memory dangers provide the
justification for the present sense impression and excited utterance
exceptions, but statements falling within these exceptions remain
untested with regard to perception and narration dangers.
关于缺乏诚实性和存在记忆危险的归纳概括，为即时感觉印象和激奋
30
话语例外提供了正当理由，但属于这些例外的陈述，在关于感知和叙
述风险方面仍然没有得到检验。
4. Statements describing medical history and symptoms are admissible under
FRE 803(4) even though they involve inferences about all four of the
declarant's testimonial qualities. The context of speaking for the purpose
of medical treatment reduces the sincerity danger, and people may take
care in perceiving and reporting their medical symptoms.
描述医疗史和症状的陈述，根据《联邦证据规则》803(4)具有可采性，
即使它们涉及关于陈述人的所有四个证言品质的推论。为医疗目的而
陈述的语境减少了诚实性危险，人们在感知和报告他们的病症时会很
谨慎。
5. Statements expressing a declarant's current state of mind are admissible
under FRE 803(3) to prove that state of mind, if it is relevant in the case.
Although sincerity and narration dangers are present, there are no
perception and memory dangers.
表达陈述人即时心态的陈述，无论是直接还是间接的，都可以根据《联
邦证据规则》803(3)采纳来证明这种心态，如果这种心态与案件具有
相关性的话。虽然这仍然有诚实性和叙述上的危险，但是却没有感知
和记忆上的危险。
【主要内容】
一、知识要点
The foundational requirements for all hearsay exceptions and exemptions are
preliminary questions of fact subject to FRE 104, and are typically for the judge to
decide pursuant to FRE 104(a). The categorical requirements are a function of hearsay
policy; they do not establish the relevance of the out-of-court statement. But consider
a case in which relevancy and hearsay policy overlap. Suppose that it is alleged that
the defendant started a fight with a co-worker. The defendant denies starting the fight.
The co-worker received an unsigned letter stating that the author has a strong negative
opinion of the co-worker; indeed, a threat is made. The co-worker claims that the
defendant wrote this letter; the defendant denies it. Can the letter be admitted under
FRE 801(d)(2)(A) against the defendant? Should FRE 104(a) or (b) control the
judge's fact-finding on this preliminary question?
31
In this case, the same fact--the identity of the writer of the letter--is necessary
both to determine the relevance (and authentication) of the letter under the
co-worker's theory and to satisfy the foundational requirement for FRE 801(d)(2)(A).
FRE 104(b) governs the relevance question; FRE 104(a) governs the hearsay policy
question. Thus there is an overlap between the two rules. Which should control? The
difference between them would be that under FRE 104(b), the judge would have to
admit the letter with less foundational evidence--only evidence sufficient to support a
finding--that the defendant wrote it. Under FRE 104(a), the judge should admit the
letter only if the judge is actually persuaded by a preponderance of the evidence that
the defendant wrote it.
FRE 803 excepts 23 different types of hearsay statements from the general
rule of exclusion. There is no requirement in this rule that the declarant be unavailable
to testify as a witness. Thus the justifications for admitting this much hearsay are
especially important for your overall evaluation of the hearsay rule in practice. Some
of the FRE 803 exceptions are legacies of almost 300 years of common law
development and are rarely used in modern federal litigation. We will focus primarily
on the exceptions that are most used today.
The premise of all FRE 803 exceptions is that these types of statements are
reliable enough to be used in the jury's fact-finding even without cross-examination of
the declarant by the opponent. In the words of the Advisory Committee Note, these
kinds of statements "possess circumstantial guarantees of trustworthiness sufficient to
justify nonproduction of the declarant in person at the trial even though he may be
available." This means that something about the hearsay statement--its content, its
source, the circumstances in which it was made--reveals something “trustworthy”
about the declarant's testimonial qualities. This is the "reliability approach" to the
admission of hearsay that we already saw at work in FRE 801(a) and (c) and in the
FRE 801(d) exemptions as well.
The Rule 803 exceptions are categorical. They each define a specific type of
out-of-court statement that may be admitted for the truth of the matter it asserts, and
they each establish foundational requirements that the proponent must satisfy pursuant
32
to the process described above in Section B. In this section, we now examine the
categorical foundational requirements of the FRE 803 exceptions, and the reliability
rationale underlying the more important ones. Remember that other rules may operate
to exclude a hearsay statement even if it fits within a Rule 803 exception--relevancy,
authentication, best evidence, the relevancy rules such as the character prohibitions,
privilege, and, of course, FRE 403, may all have to be applied as well.
Two other general points apply to all Rule 803 (and Rule 804) exceptions. Because
the declarant's statement is offered for its truth, the declarant is a source of knowledge
for the jury, analogous to a witness testifying at trial. Therefore the fundamental
requirement that witnesses must speak from personal knowledge applies as well to
hearsay declarants under FRE 803 and FRE 804.
二、问题研讨
For each of the following, consider: What hearsay exception should the
proponent rely on? What evidence, from what witness(es), might the proponent use to
satisfy the foundational requirements? Make the argument first for the proponent, then
for the opponent, and then decide how the court should rule.
1. In a product liability suit against Owens-Corning, a manufacturer of asbestos
products, the executors of a decedent obtained a judgment for $1.4 million for the
decedent’s asbestos-related death.
The jury allocated only 5% of this award against
Owens-Corning. On appeal, the executors dispute the admission of their complaint
filed in the action that lists 10 other manufacturers as being contributorily responsible
for the decedent’s injuries. All of these other defendants had settled with the executors.
The state statute provides that liability can be apportioned among multiple tort-feasors
against whom some evidence of fault is presented at trial. On what grounds can the
executors claim that the complaint was inadmissible, assuming proper objections were
made at trial? What result?
2. Daniel Mahlandt has sued the Wild Canid Survival & Research Center, Inc.
and its director of education, Kenneth Poos, for injuries sustained when Daniel was
allegedly bitten by a wolf named Sophie. Sophie was enclosed in the yard at Mr.
Poos's residence by a five-foot chain link fence and was chained to the fence with a
six-foot-long chain. Daniel, who was three-and-a-half years old at the time of the
alleged biting, crawled under the fence and got into the yard with Sophie. The
33
plaintiff presented no eyewitnesses to the actual biting, but one witness testified that
she heard a child's screams and observed Daniel on the ground with Sophie straddling
him. Sophie's face was near Daniel's, and Sophie was wailing.
A defense expert will testify that wounds on Daniel’s head and neck could also
have been caused by scraping against the bottom of the fence. And, a defense
witness will testify that Sophie, almost a year old, had been very gentle and was taken
to various schools and institutions as part of a lecture program. Another defense
witness, an expert on animal behavior, will testify that when a wolf licks a child's face,
that is a sign of care, and that a wolf's wail is a sign of compassion.
Mr. Poos arrived at his home shortly after the attack. After seeing that Daniel
was taken to a hospital, Mr. Poos talked to neighbors about what happened and then
went to the Center to report the incident to the Center's president. The president was
not in, so Mr. Poos left the following note on his door: "Please call me at home.
Sophie bit a child that came in our back yard. All has been taken care of. I need to
convey to you what happened. KP." Several weeks later there was a meeting of the
Board of Directors of the Center. Mr. Poos was not present. The minutes of that
meeting state that there was a "great deal of discussion about the legal aspects of the
incident of Sophie biting the child."
Plaintiff has offered into evidence against both Mr. Poos and against the
Center (a) the note written by Mr. Poos and (b) the foregoing passage from the
minutes of the board meeting. Both defendants have objected on hearsay grounds to
the admission of both pieces of evidence. With respect to each defendant, what result?
3. Defendant is charged with a variety of federal crimes, all arising out of his
ownership of an escort service that served as a front for an organized prostitution ring.
To prove the nature of the defendant’s business, the government offers an
authenticated tape recording of a conversation between Brenda, the government’s
informant who had previously worked as one of the defendant’s escorts, and an escort
named Marie.
In the conversation, Brenda and Marie discuss the sexual activity they
had on past dates while working for defendant. Defendant objects to the tape as
hearsay. What result?
4. Defendant Tom Adams is being tried for conspiracy to import drugs. He and
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his alleged co-conspirator, Henry Hopkins, were arrested together. The arresting
officer offers to testify for the prosecution as follows: "At the time of the arrest, in
Adams's presence Hopkins said, 'Oh, [expletive deleted]! You got me into this drug
deal.' Adams remained silent." Should Adams's hearsay objection be sustained? Does
your answer depend on whether the prosecutor can convince the judge that there was
a conspiracy involving Adams and Hopkins?
三、文献阅读
Chapter 8, Evidence: Text, Problems, and Cases (Third edition, Ronald J. Allen)
五、学时分配
课堂学时分配表
课次
1
内
容
授课学时数
Relevancy – Part One （证据的相关性：第一
备 注
4
部分）
2
Relevancy – Part Two （证据的相关性：第二
4
部分）
3
Authentication of Writings and Best Evidence
4
Rule（书证的鉴真和最佳证据规则）
4
Witnesses（证人）
4
5
Impeachment and Rehabilitation（证人弹劾与
4
正誉）
6
Privileges（特免权）
4
7
Hearsay – Part One（传闻证据：第一部分）
4
8
Hearsay – Part Two（传闻证据：第二部分）
4
9
随堂期末考试
4
总 计
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编写人签字：
研究所负责人签字：
审核人（二级单位负责人）签字：
批准人（研究生院）签字：
编制时间：
35