I.
A.
B.
C.
D.
E.
Overview
Basic Questions
1. What is the applicable rule/principle of evidence?
2. What is the relevance/significance of the advisory committee
comments?
3. Why is this the best objection? Is there an alternative?
Why have Rules of Evidence
1. concerns the jury’s ability to evaluate evidence
2. serve substantive policies—ensure that where evidence could affect
the outcome that it meets certain criteria.
a. Limitations on evidence based on concerns of:
1.) Fairness
2.) Efficiency
3.) Predictability
4.) Consistency
3. further unrelated substantive policies
4. ensure accurate fact finding by encouraging people to be careful and
ensuring that they evaluate authentic evidence.
United States v. Wayne Gillis
1. Cop stopped because of missing tag, discovered marijuana and
cocaine.
2. Recreating reality depends on perceptions, story, organization
Meanings of Evidence
1. Proof—what is offered to prove claim, cause of action, or defenses
a. Oral testimony and tangible material in the form of “exhibits”.
2. The Rules—guide admissibility through foundations that guide judges
3. “In Evidence”—special form of proof that has met the requirements that
allow the jury to consider it in the jury room during deliberations.
Types of Evidence
1. Real—physical, tangible evidence
2. Representative—represents something else
3. Testimonial—comes from witnesses “viva voce”
4. Direct—proves a fact without requiring any inference
5. Circumstantial—inference drawn from it bears on fact in issue
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II.
The Functions of Judge, Jury, and Attorneys at Trial
A. Applicable Rules:
1. Rule 101 Scope
a. Rules govern proceedings in the courts of the united state and
before united states bankruptcy judges, united states magistrate
judges (subject to rule 1101)
2. Rule 102 Purpose and Construction
a. These rules shall be construed to secure fairness and
administration, elimination of unjustifiable expense and delay and
promotion of growth and development of the law of evidence to the
end that the truth may be ascertained and proceedings just
determined.
3. Rule 103 Rulings on Evidence
a. Effect of Erroneous Ruling—Error may not be predicated upon a
ruling which admits or excludes evidence unless a substantial right
of the party is affected and
1.) Objection—in case the ruling is one admitting evidence, a timely
objection or motion to strike appears of record, stating the
specific ground of objection, if the specific ground was not
apparent from the context or
2.) Offer of proof- in case the ruling is one excluding evidence,
substance of the evidence was made known to the court by
offer or was apparent from the context within which questions
were asked
Once the court makes a definitive ruling on the record admitting or
excluding evidence, either at or before trial, a party need not renew
an objection or offer of proof to preserve a claim of error for appeal
b. Record of offer and ruling—court may add any other or further
statement which shows the character of the evidence, the form in
which it was offered, the objection made, and the ruling thereon. It
may direct the making of an offer in question and answer form.
c. Hearing of Jury—in jury cases, proceedings shall be conducted, to
the extent practicable, so as to prevent inadmissible evidence from
being suggested to the jury or offers of proof or asking questions in
the hearing of the jury
d. Plain error
1.) Nothing in this rule precludes taking notice of plain errors
affecting substantial rights although they were not brought to the
attention of the court.
Notes on 103
2.) Standard of Review—trial judges are given wide latitude—
usually only overruled for abuse of discretion or plain error
a) Exception for constitutional error—reversible unless
harmless beyond a reasonable doubt
3.) Objections must be specific
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a) Need to be specific as to parts, parties, purposes, grounds
b) General objection may acquire specificity from context
c) Objection only preserves specific ground(s) named
4.) Overbroad offers
a) If don’t limit offer to admissible part of evidence, may not
complain on appeal if court excludes entire offer
5.) Is an error harmless?
a) Was it the primary evidence?
b) Did the other party get to present the substance of their
claim
c) Did the jury instructions cure?
d) Jury argument
e) Was it cumulative
f) Was other evidence overwhelming?
6.) Plain error rarely used—only where it would seriously affect the
fairness, integrity or public reputation of judicial proceedings to
leave error uncorrected
7.) Timeliness—usually objection must precede witness’s answer
4. Rule 104 Preliminary Questions
a. Questions of Admissibility Generally—Preliminary questions
concerning the qualifications of a person to be a witness, the
existence of a privilege, or the admissibility of evidence shall be
determined by the court, subject to the provisions of (b). In making
its determination, it is not bound by the rules of evidence except
those with respect to privileges
b. Relevancy conditioned on Fact—When the relevancy of evidence
depends upon the fulfillment of a condition of fact, the court shall
admit it upon or subject to, the introduction of evidence sufficient to
support a finding of the fulfillment of the condition
c. Hearing of the jury—hearings on the admissibility of confessions
shall in all cases be conducted out of the hearing of the jury.
Hearings on other preliminary matters shall be so conducted when
the interests of justice require or when an accused is a witness and
so requests
d. Testimony be Accused—the accused does not by testifying upon a
preliminary matter, become subject to cross-examination as to
other issues in the case
e. Weight and credibility—This rule does not limit the right of a party to
introduce before the jury evidence relevant to weight or credibility
Notes on Rule 104
1.) Rule 104 (a). In making his decision about admissibility, the
judge can take into account inadmissible evidence—like
hearsay, but may not consider privileged evidence.
2.) Rule 104(b) divides fact finding between judge and jury
a) Judge decides preliminary questions of fact pertaining to
rulings on admissibility. If a reasonable jury could find that
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the condition was met by preponderance of the evidence,
then jury gets fact to determine
b) Jury determines weight of evidence.
5. Rule 105 Limited Admissibility
When evidence which is admissible as to one party or one purpose but
admissible as to another party or for another purpose is admitted, the
court, upon request, shall restrict the evidence to its proper scope and
instruct the jury accordingly
6. Rule 106
When a writing or recorded statement or part thereof is introduce by a
party, an adverse party may require the introduction at that time of any
other part or any other writing or recorded statement which ought in
fairness to be considered contemporaneously with it.
B. Roles of Judge, Jury and Attorney
1. Judge
a. Judge has responsibility to manage trial
1.) Rule 611 (a)
a) The court shall exercise reasonable control over the mode
and order of interrogating witnesses and presenting
evidence so as to 1 make the interrogation and presentation
effective for the ascertainment of the truth, 2) avoid needless
consumption of time, and 3) protect witnesses from
harassment or undue embarrassment
b. rules on evidentiary objections and admissibility
1.) discretion is constrained by rules
2.) Judges rely on reason and experience to answer relevancy
questions
a) Other rules may require the application of legal rules and
principles.
c. General Rule: It is the lawyers prerogative to structure their case as
they see fit, and it is inappropriate for the judge to sua sponte offer
strategy suggestions.
2. Jury
a. decides facts, evaluates admitted evidence, applies to law as given
to evidence, and reaches verdict
3. Attorney
a. duty to act ethically
b. duty to act zealously on behalf of clients on two levels
1.) in present—favorable outcome at trial
2.) future—preserving record for appeal
3.) potential conflict between duties: Does an attorney rely on
opposing counsel to object to inadmissible evidence or do they
have an obligation to offer only admissible evidence?
c. must lay foundations for evidence
1.) foundations—prerequisites for admissibility
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C. Applicable Case Law
1. Ohler v. United States (SC 2000)
a. Ohler objected to evidence of her prior felony conviction being
admitted. After the government’s motion to admit the evidence was
granted, Ohler testified on direct examination as to her priors.
b. Held: May not challenge the ruling on the motion in limine unless
the objection was renewed at trial.
1.) Defendant who preemptively introduces evidence of prior
conviction may not appeal the admission of such evidence
c. Dissent: Ruling closes off option to defendant of trying to mitigate
damage of prior conviction by preemptively bringing u
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III.
Relevance
A. Applicable rules
1. Rule 401 Definition of Relevant Evidence
Relevant Evidence means evidence having any tendency to make the
existence of any fact that is of consequence to determination of the
action more probable or less probable than it would be without the
evidence
Notes on 401:
a. Relevance is initial threshold—all admissible evidence must be
relevant (not all relevant evidence is admissible).
b. Two part test
1.) Probative
a) More remote—less probative value
2.) Of fact of consequence to the determination
a) Relate to elements of claim, cause of action, defense,
credibility of witness or helpful background information
b) Relevance—how one thing relates to another—only relevant
in context, not inherently—“Relevant to What?”
i.
May be multiple possible inferences from fact—only
need one to make it relevant
c. Conditional relevance—under Rule 104(b) if the relevance depends
on the existence of a separate fact can be admitted if there is
sufficient evidence for reasonable jury to find that fact in question
exists
1.) Test: Do you know enough right now to make a relevance
determination
2.) Not the same thing as rule 105 limited admissibility
a) Limited admissibility—relevant but may only be used for one
purpose
b) Conditional relevance—not relevant until conditional fact
established
3.) Failure to connect up—appealable error or mistrial
2. Rule 402 Relevant Evidence Generally Admissible Irrelevant
Evidence Inadmissible
All relevant evidence is admissible, except as otherwise provided by
the constitution of the United States, by Act of Congress, by these
rules, or by other rules prescribed by the Supreme Court pursuant to
statutory authority
Notes on 402:
a. Immaterial if evidence helps prove proposition other than one at
issue in case
B. Applicable objections
1. The evidence is irrelevant and inadmissible under Rules 401 and 402.
a. Response: 401 is minimal threshold
b. Response: Fact of consequence need not be disputed
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c. Response: Relevance may become apparent when “connected
up”—104(b)
C. Applicable Case Law
1. Knapp v. State
a. Defendant testified that he heard that the deceased Marshall had
clubbed and seriously injured an old man. The prosecution showed
that the old man died of natural causes.
b. Held: Evidence properly admitted because it is probative as to
whether or not the defendant actually heard such a rumor—less
likely to hear untrue rumor.
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IV.
Relevant but Inadmissible Evidence: Exclusion of Unfairly Prejudicial
and Other Evidence
A. Applicable Rules
1. Rule 403
Although relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion f the
issues or misleading the jury or by considerations of undue delay, waste of
time or needless presentation of cumulative evidence.
Notes on 403
a. Relevant evidence may be prejudicial—only unfairly prejudicial
evidence is excluded
1.) Unfair prejudice—not just influencing decision maker but
tending to lead to decision on improper grounds like emotional
basis
a) Jury may exaggerate the probative value of the evidence
b) Cause jury to disregard issues
c) Jury may use evidence for improper purpose
2.) Unfair prejudice—limiting instruction does not offset prejudice
3.) Common Types of unfair prejudice:
a) Probability evidence
i.
Statistical evidence designed to show a low
probability that another person with the same
characteristics committed the crime is usually excluded
b) Graphic depictions of violence
i.
Evidence can not be so violent as to lead to a purely
emotional verdict
c) Novel scientific evidence
i.
Recreations of event must be “substantially similar”
ii.
 Rules of expert witnesses
iii.
Must meet Daubert Factors (non-exclusive, flexible
list  Kumho Tires
(a) Is the subject matter scientific knowledge?
(b) Has the theory or technique been tested?
(c) Peer review and publication?
(d) Known or potential rate of error?
(e) Standards?
(f) General acceptance in field (old Frye test)
iv.
Must show:
(a) Based upon sufficient facts or data
(b) Testimony is product of reliable principles and
methods
(c) Witness has applied the principles and methods
reliability to the facts of the case
d) Similar events, happenings or occurrences
i.
Often offered for:
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(a) Accidents to show causation or dangerousness
(b) Sales to show value
(c) Prior course of dealing to show meaning of contract
(d) Prior industry custom to show meaning of
action/document
(e) Lack of similar occurrences to show absence of
culpability or fault
ii.
potential for unfair prejudice
(a) differences diminish the worth of the evidence
(1) can jury judge significance of differences?
(b) mislead/distract jurors
(c) not directly on point
iii.
if allowable only need evidence sufficient to support
finding
4.) Ways to cure or reduce prejudice
a) Stipulations
b) Limiting instructions
c) Admitting liability on issue and reducing relevance
b. Discretionary remedy
1.) Jury determines credibility—judge determines probative value if
the evidence is believed.
c. “probative value” is a distinct inquiry from 401 relevance and may
include a consideration of evidentiary alternatives, and need for the
evidence
d. misleading jury = jury might give undue weight to evidence
1.) demonstrative evidence is misleading if it distorts or
misrepresents the underlying evidence.
B. Applicable Objections
1. The evidence will cause confusion of the issues
2. The evidence is cumulative and inadmissible under Rule 403.
a. Response: cumulative should not interfere with right to present
persuasive case—i.e. corroborate testimony
b. Response “balance should be struck in favor of admission” and
Rule 403 is an “extraordinary remedy to be used sparingly”
3. The evidence will mislead the jury
4. Evidence of other accidents is irrelevant and inadmissible under Rules
401and 402 OR inadmissible under Rule 403 because the probative
value of such evidence is substantially outweighed by the dangers of
unfair prejudice, confusion of the issues and misleading the jury.
a. Must show substantially similar conditions and circumstances—and
still subject to trial court’s discretion for exclusion based on unfair
prejudice, confusion of the issues, and waste of time on collateral
matters.
5. Evidence of claims made by the plaintiff other than those at issue here
is irrelevant and inadmissible under 401 and 402 OR is inadmissible
under Rule 403 because its probative value is substantially outweighed
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by the danger of unfair prejudice, confusion of the issues, or
misleading the jury.
a. Response: strongly relevant to falsity of present claim
6. Evidence of a party’s contracts or transactions other than those at
issue here is irrelevant and inadmissible under 401 and 402 OR is
inadmissible under Rule 403 because its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of
the issues, or misleading the jury.
a. Response: relevant to prove terms or meanings of disputed
agreement
7. The photographs are highly inflammatory and unnecessary to prove
facts at issue. They are unfairly prejudicial and thus excluded by rule
403.
a. Response: even though gruesome, photographs depict relevant
facts
8. The probative value of this testimony is substantially outweighed by the
danger of unfair prejudice
a. Response: Rule 403 is not a shield for defendants who engage in
outrageous acts. Does not require government to sanitize its case
or tell case in monotone.
C. Applicable Case Laws
1. People v. Collins
a. Math professor testified about the probability that someone else
with the same characteristics committed the crime
b. Held: Evidence should have been excluded as unfairly prejudicial
because the testimony was not adequately based in theory and
evidence leading to conjecture without relevance and because it
distracted the jury, placed defense counsel at a disadvantage, and
risked the jurors giving the expert testimony undue weight.
1.) Evidence did not present probability for each factor and was no
help in determining which of the couples with such
characteristics did indeed commit the crime
2.) At most a measure of the probability any random couple would
have the characteristics.
2. Old Chief v. United States
a. Old Chief wanted to stipulate that he had prior criminal convictions
rather than allow prosecution to put on evidence.
b. Held: Unfair prejudice because it caused risk that jury would
improperly generalize prior bad acts into bad character. General
rule that the prosecution is entitled to prove its case not really
applicable when issue is legal status of defendant apart from
current charge.
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V.
Character and Habit Evidence
A. Applicable Rules
1. Rule 404(a) Character Evidence not Admissible to Prove Conduct;
Exceptions
a. Character Evidence Generally: Evidence a person’s character or a
trait of character is not admissible for the purpose of proving action
in conformity therewith on a particular occasion except:
1.) Character of Accused. Evidence of a pertinent trial of character
offered by an accused or by the prosecution to rebut the same,
or if evidence of a trait of character of the alleged victim of the
crime is offered by the accused and admitted under Rule
404(a)(2) evidence of the same trait of the accused offered by
the prosecution
2.) Character of alleged victim. Evidence of a pertinent trait of
character of the alleged victim of the crime offered by an
accused or by the prosecution to rebut the same or evidence of
a character trait of peacefulness of the alleged victim offered by
the prosecution in a homicide case to rebut evidence that the
alleged victim was the first aggressor.
3.) Character of Witness as provided in 607, 608, 609
b. Other crimes, wrongs, acts. Evidence of other crimes wrongs or
acts is not admissible to prove the character of a person in order to
show action in conformity therewith. It may, however, be admissible
for other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or
accident, provided that upon request by the accused the
prosecution in a criminal case shall provide reasonable notice in
advance of the trial or during the trial if the court excuses pretrial
notice on good cause shown of the general nature of any such
evidence it intends to introduce at trial.
Notes on 404
a. Character evidence offered for three purposes
1.) Propensity to show that the person likely acted in conformity
with the trait on this occasion
a) For: show which person and version of facts more believable
b) Against: Unfairly prejudicial because not always accurate,
people can change, distracts from events at issue.
2.) Character trait “in issue”
3.) Other purposes
a) 404(b)
b) credibility—governed by 607-609
b. Why have bar?
1.) Those with prior criminal record are already disadvantaged by
legal system
2.) Jury may give more weight than evidence deserves
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c. Key Questions:
1.) Is the evidence being offered to show character
2.) What is the purpose of showing character
3.) Is form proper?
d. If character evidence is admissible, must still conform to rule 405
e. Exceptions of 404(a) only apply to criminal defendants
f. 404(a) does not exclude as noted by 404(b) character evidence
used to prove something other than conformity
g. Rule 404(a) does not apply if character is “directly in issue”
1.) Examples
a) Entrapment (some states require sub. Showing that not
susceptible to crime).
b) Negligent entrustment, hiring or supervision (did employee
have dangerous reputation)
c) Criminal seduction
d) Defamation (was plaintiff’s reputation defamed)
h. If admissible, character trait must still be relevant
i. Rebuttal
1.) As noted by 405(a), cross-examination may ask a witness
whether they have heard or know of specific acts (should be
able to ask either question of opinion or reputation witness).
2.) May call own reputation or opinion witnesses
3.) May rebut character of alleged victim
a) Show victim’s peaceable character
b) Show evidence of same trait of accused.
4.) Once offer character evidence, open self-up to rebuttal
a) But difference between taking the stand and testifying as to
facts and testifying specifically about character.
j. Self-Defense
1.) Offering character of alleged victim to show reasonable belief
does not implicate 404(a) because not offering to show
conformity.
k. Reasonable doubt instruction
1.) Majority Rule: Trial court does not have to instruct jury that
evidence of good character may be sufficient to create a
reasonable doubt. Few circuit courts disagree.
l. “Other crimes”
1.) does not have to be criminal or have arrest/conviction and does
not have to be prior as long as probative and jury could find by
preponderance of the evidence that defendant did the other act.
a)  Dowling—acquittal okay because could be based on
some reason other than that didn’t commit crime.
2.) Element proving must be in dispute
a)  Old Chief—defendant allowed to stipulate status to
remove issue from contention but prosecutorial freedom to
prove other elements such as intent remains.
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3.) “modus operandi” theory—“signature quality” to crimes
4.) Motive—not an element of most cases but can be useful and
relevant in putting together a circumstantial case
5.) Other purposes—list is not exclusive
a) Absence of mistake
b) Demonstrate a common plan or scheme
c) Charged offense and other crimes and inextricably
intertwined
i.
Other offense is part of act that is basis for charge
ii.
Coherent account of charged crime needs to mention
other offense “res gestae” needed to complete the story
(a) IS there a sufficiently “close nexus” to be considered
party of the same act or transaction and not an other
act?
d) To show knowledge
e) To show opportunity or capacity
f) To show consciousness of guilt
g) To support or rebut a claim of entrapment
h) To rebut claim of accident—“doctrine of chances” –What are
the chances that this would happen repeatedly?
6.) New Rules 413, 414, and 415 allow evidence of similar crimes
of sexual assault or child molestation to be used for any
purpose in civil and criminal cases for same type of crime/same
type of action.
2. Rule 405 Methods of Proving Character
a. Reputation or Opinion. In all cases in which evidence of character
or trait of character of a person is admissible, proof may be made
by testimony as to reputation or by testimony in the form of an
opinion. On cross-examination, inquiry is allowable into relevant
specific instances of conduct.
b. Specific Instances of Conduct. In cases in which character or a trait
of a character is an essential element of a charge, claim or
defense, proof may also be made of specific instances of that
person’s conduct.
Notes on 405
a. Reputation witness must have sufficient familiarity with person and
the community and the circles the person move in
b. Opinion witness must have sufficient familiarity with the person
c. Cross examination
1.) Cross examining with specific acts attacks knowledge and
credibility
2.) Must be in good faith and specific acts must be relevant to
character traits involved at trial
3.) Extrinsic proof of specific act or knowledge of it not permitted
4.) Hypothetical questions involving guilt of charged offense
improper
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3. Rule 406 Habit; Routine Practice
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 wit
the habit or routine practice.
Notes on 406
a. Habit is narrower than character: specific regular response to a
repeated specific situation
1.) “person’s regular practice of meeting specific kinds of situations
with regularity”
2.) Can observe habit, can only have opinion to character
3.) Even if regular, is conduct sort that could be habit?
4.) Has sufficient evidence been established that the person had
the habit?
5.) Almost involuntary = habit
6.) Routine. reliable
7.) Proof: both opinion and specific acts acceptable
a) Proof must show frequency and regularity of behavior
8.) Standard of care in business/industry falls under 406
B. Applicable Objections
1. Character evidence where admissible must be shown by reputation not
opinion testimony
a. This common law objection is no longer valid under the federal
rules. Rule 405 allows character evidence to be given in the form of
either reputation or opinion testimony.
2. The question calls for evidence of character which is not admissible
under Rule 404.
3. Evidence of Specific acts is admissible to prove a person’s character.
a. Response: Character is in issue in the case.
4. Cross-examination of the witness concerning this alleged act is
improper because counsel has not demonstrated a good faith factual
basis OR the alleged act is not relevant to the character trail for which
the witness testified OR it assumes guilt of the crime for which the
defendant is now on trial.
5. The witness has not been shown to be qualified to testify to the
person’s reputation OR an opinion as to the person’s character.
6. I did not receive sufficient notice of the prosecution’s intent to offer
evidence of the defendant’s other crimes as required by Rule 404(b).
a. Response: Defendant failed to trigger by making a timely request.
b. Response: Even if no formal notice, defendant had knowledge and
the information was fully disclosed.
7. Even if the other crimes evidence is offered for a purpose other than
proof of propensity, it has not been adequately proven.
a. Response: satisfied according to 104(b) if the judge finds that the
jury could find by preponderance of the evidence
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8. Inquiry into a person’s other crimes, wrongs or acts is barred by Rule
404(b). The issue in this trial is whether the person did what is claimed
she did not whether she did something wrong at another time.
a. Response: Logically relevant to issue other than propensity
9. Even if the other crimes evidence is offered for a purpose other than
proof of propensity or is offered under Rules 413-415, it is not offered
for a fact in dispute. Therefore it is inadmissible under Rules 403 and
404(b).
C. Applicable Case law
1. People v. Zackowitz
a. The prosecution wished to show that defendant owned many guns
to rebut defendant’s charge of heat of passion killing.
b. Held: Should have been excluded because propensity only an
issue once defendant raises and the evidence was only relevant as
propensity evidence.
2. Michelson v. United States
a. Entrapment action and defendant brought 5 witness showing good
character
b. Character evidence in form of reputation is anomalous because it
can only be based on hearsay.
c. Only a conviction can be used to undermine trustworthiness of
witness, but mere arrest is sufficient to undermine reputation
d. Once defendant raises, defendant opens self up to rebuttal
3. Rex v. Smith
a. Evidence of murders of two other women was allowed in.
b. Held: Evidence admissible to show other purposes besides
propensity.
1.) Acts admissible if prima facie evidence that defendant
committed the other crimes.
4. Dowling v. United States
a. Bank robber subsequently robbed old woman but was acquitted of
this.
b. Held: Evidence of other acts admissible even though acquittal
because do not have to be proven beyond a reasonable doubt.
Double jeopardy not a problem because acquittal is not the same
as a finding that he did not do crime.
5. Huddleston v. Untied States
a. District Court does not need to make a preliminary finding that the
government has proven the other act by a preponderance of the
evidence before the evidence goes to the jury if there is sufficient
evidence from which the jury could make such a finding.
1.) Consider all evidence together—sum may be greater than parts
6. United States v. Beechum
a. Similarity of other acts (possessing stolen silver dollar and stolen
credit cards from mail route) sufficient to overcome 403 objection.
7. Jones v. Southern Pacific Railroad
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a. 9 citations over 29 year engineering career not sufficient to
establish habit.
8. People v. Chambers
a. Prosecution trying to argue that missing earrings indicative of state
of mind of defendant.
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VI.
Other Exclusions of Relevant Evidence
A. Excluding relevant evidence because likely to mislead jury and/or to
promote public policy
B. Applicable Rules
1. Rule 407 Subsequent Remedial Measures
When after an injury or harm allegedly cause by an event, measures
are taken, that if taken previously, would have made the injury or harm
less likely to occur, evidence of the subsequent remedial measure is
not admissible to prove negligence, culpable conduct, a defect in a
product, a defect in a product’s design, or a need for warning or
instruction. This rule does not require the exclusion of evidence of
subsequent measures when offered for another purpose, such ad
proving ownership, control or feasibility of precautionary measures, if
controverted or impeachment.
Notes on 407:
a. Policy choice to encourage individuals to take safety measures.
b. Concerned about relevance: is taking remedial measures good
indicator of negligence?
c. Remedial measure: taken after event and would have decreased
the likelihood of the event if they had been taken before
d. Can show remedial measures taken by third parties
e. Some courts say can show remedial measures was compelled to
take
f. Other purposes:
1.) Rebut defense’s theory of condition of accident scene
2.) Where defendant has destroyed relevant object
3.) Other purpose must be controverted
4.) Impeachment—narrow reading: where factual assertions
contradicted by remedial measures or where claiming X was
best or safest it could be.
5.) May still be barred under 403—court must weight probative
value versus chance will be impermissibly used to show
negligence or culpability.
2. Rule 408 Compromise and Offers to Compromise
Evidence of (1) furnishing or offering or promising to furnish or (2)
accepting or offering or promising to accept, a valuable consideration
in compromising or attempting to compromise a claim which was
disputed as to either validity or amount is not admissible to prove
liability for or invalidity of the claim or its amount. Evidence of conduct
or statements made in compromise negotiations is likewise not
admissible. This rule does not require the exclusion of any evidence
otherwise discoverable merely because it is presented in the course of
compromise negotiations. This rule also does not require exclusions
when the evidence is offered for another purpose, such as proving bias
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or prejudice of a witness, negating a contention of undue delay, or
proving an effort to obstruct a criminal investigation or prosecution.
Notes on 408
a. Policy choice to encourage settlement talks.
b. Is there an offer to compromise?
1.) Look at context and character of statement or offer for element
of concession. Factors include:
a) Timing of offer
b) Existence of disputed claim
c) Conditional nature of offer
d) Presence of counsel
c. Controversy over whether can ever be used to impeach
d. Courts divided over whether can use to show that criminal accused
settled or attempted to settle related civil claim.
e. Common law: compromise protected but surrounding words come
in.
3. Rule 409 Payment of Medical and Similar Expenses
Evidence of furnishing or offering or promising to pay medical, hospital,
or similar expenses occasioned by an injury is not admissible to prove
liability for the injury.
Notes on 409
a. Policy choice to not discourage help before a court determines
liability.
b. Similar expenses: related to medical but not lost wages, property
damages, destruction.
c. Statements, conduct, behavior that accompanies offers are
admissible.
4. Rule 410 Inadmissibility of Pleas, Plea Discussions, and Related
Statements
Except as otherwise provided in this rule, evidence of the following is
not in any civil or criminal proceeding, admissible against the
defendant who made the plea or was a participant in the plea
discussions:
1.) A plea of guilty which was later withdrawn
2.) A plea of nolo contendere
3.) Any statement made in the course of any proceedings under
Rule 11 of the Federal Rules of Criminal Procedure or
comparable state procedure regarding either of the foregoing
pleas.
4.) Any statement made in the course of plea discussions with an
attorney for the prosecuting authority which do not result in a
plea of guilty or which result in a plea of guilty later withdrawn.
However such a statement is admissible (i) in any proceeding wherein
another statement in the course of the same plea or plea discussions
has been introduced and the statement ought in fairness be
considered contemporaneously with it or (ii) in a criminal proceeding
20
for perjury or false statement if the statement was made by the
defendant under the oath, on the record and in the presence of
counsel.
Notes on 410
a. Must be made in course of plea negotiations with prosecuting
attorney
b. Not protected:
1.) Statements to police officers
2.) Statements without the intent to negotiate a plea
3.) Statements after plea agreement is finalized
4.) Statements during negotiations that result in plea of guilty
c. Defendant’s plea and statements may be offered against someone
other than defendant
d. Disputed whether or not can offer prosecution statements or offers
to compromise.
e. Knowing and voluntarily waivers of 410 are effective
5. Rule 411 Liability Insurance
Evidence that a person was or was not insured against liability is not
admissible upon the issue whether the person acted negligently or
otherwise wrongfully. This rule does not require the exclusion of
evidence of insurance against liability when offered for another
purpose such as proof of agency, ownership, or control or bias or
prejudice of a witness.
Notes on 411
a. Admission could be highly prejudicial because insurance not
related to degree of care.
b. Other purposes:
1.) To show trade custom of limiting liability
2.) To show why a safety inspection was made
3.) To prove existence of effective contract exculpating the
defendants from all risks of loss or damage.
c. May be used to show liability of 3rd party
6. Rule 412 Sex Offense Cases: Relevance of Alleged Victim’s Past
Sexual Behavior or Alleged Sexual Predisposition
(a) Evidence generally inadmissible.--The following evidence is not
admissible in any civil or criminal proceeding involving alleged sexual
misconduct except as provided in subdivisions (b) and (c):
(1) Evidence offered to prove that any alleged victim engaged in other
sexual behavior.
(2) Evidence offered to prove any alleged victim's sexual predisposition.
(b) Exceptions.-(1) In a criminal case, the following evidence is admissible, if otherwise
admissible under these rules:
(A) evidence of specific instances of sexual behavior by the alleged victim
offered to prove that a person other than the accused was the source of
semen, injury or other physical evidence;
21
(B) evidence of specific instances of sexual behavior by the alleged victim
with respect to the person accused of the sexual misconduct offered by
the accused to prove consent or by the prosecution; and
(C) evidence the exclusion of which would violate the constitutional rights
of the defendant.
(2) In a civil case, evidence offered to prove the sexual behavior or sexual
predisposition of any alleged victim is admissible if it is otherwise
admissible under these rules and its probative value substantially
outweighs the danger of harm to any victim and of unfair prejudice to any
party. Evidence of an alleged victim's reputation is admissible only if it has
been placed in controversy by the alleged victim.
(c) Procedure to determine admissibility.-(1) A party intending to offer evidence under subdivision (b) must-(A) 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; and
(B) serve the motion on all parties and notify the alleged victim or, when
appropriate, the alleged victim's guardian or representative.
(2) 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. The motion, related papers, and the record of the hearing must
be sealed and remain under seal unless the court orders otherwise.
Notes on 412
a. Forecloses Rule 404(a)(2) in criminal cases
b. Common Law: Defendant could claim consent and present extrinsic
evidence of sexual relations and promiscuity
c. Civil actions must show that 404(b) is met
1.) Other purposes:
a) Show sexual harassment not unwelcome
b) Show another possible father/limit pain and suffering
2.) Still have to meet strict balancing test
d. Applies to all cases that involve sexual misconduct including those
where sexual misconduct is relevant as a motive or background
evidence.
e. Other sexual behavior:
1.) physical conduct,
2.) activities that imply sexual intercourse or conduct (illegitimate
child, birth control)
3.) fantasies or dreams
4.) reputation/opinion evidence
f. Sexual predisposition
1.) Dress
2.) Speech
3.) Life-style
4.) Admissible: prior false claims if otherwise admissible
22
7. Rule 413 Evidence of Similar Crimes in Sexual Assault Cases
(a) In a criminal case in which the defendant is accused of an offense
of sexual assault, evidence of the defendant's commission of another
offense or offenses of sexual assault is admissible, and may be
considered for its bearing on any matter to which it is relevant.
(b) In a case in which the Government intends to offer evidence under
this rule, the attorney for the Government shall disclose the evidence
to the defendant, including statements of witnesses or a summary of
the substance of any testimony that is expected to be offered, at least
fifteen days before the scheduled date of trial or at such later time as
the court may allow for good cause.
(c) This rule shall not be construed to limit the admission or
consideration of evidence under any other rule.
(d) For purposes of this rule and Rule 415, "offense of sexual assault"
means a crime under Federal law or the law of a State (as defined in
section 513 of title 18, United States Code) that involved-(1) any conduct proscribed by chapter 109A of title 18, United States
Code;
(2) contact, without consent, between any part of the defendant's body
or an object and the genitals or anus of another person;
(3) contact, without consent, between the genitals or anus of the
defendant and any part of another person's body;
(4) deriving sexual pleasure or gratification from the infliction of death,
bodily injury, or physical pain on another person; or
(5) an attempt or conspiracy to engage in conduct described in
paragraphs (1)-(4).
Notes on 413
a. Supercedes 404 including allowing specific instances of
misconduct—need not have a conviction.
8. Rule 414 Evidence of Similar Crimes in Child Molestation Cases
a) In a criminal case in which the defendant is accused of an offense of
child molestation, evidence of the defendant's commission of another
offense or offenses of child molestation is admissible, and may be
considered for its bearing on any matter to which it is relevant.
(b) In a case in which the Government intends to offer evidence under this
rule, the attorney for the Government shall disclose the evidence to the
defendant, including statements of witnesses or a summary of the
substance of any testimony that is expected to be offered, at least fifteen
days before the scheduled date of trial or at such later time as the court
may allow for good cause.
(c) This rule shall not be construed to limit the admission or consideration
of evidence under any other rule.
(d) For purposes of this rule and Rule 415, "child" means a person below
the age of fourteen, and "offense of child molestation" means a crime
under Federal law or the law of a State (as defined in section 513 of title
18, United States Code) that involved--
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(1) any conduct proscribed by chapter 109A of title 18, United States
Code, that was committed in relation to a child;
(2) any conduct proscribed by chapter 110 of title 18, United States Code;
(3) contact between any part of the defendant's body or an object and the
genitals or anus of a child;
(4) contact between the genitals or anus of the defendant and any part of
the body of a child;
(5) deriving sexual pleasure or gratification from the infliction of death,
bodily injury, or physical pain on a child; or
(6) an attempt or conspiracy to engage in conduct described in
paragraphs (1)-(5).
Notes on 414
9. Rule 415 Evidence of Similar Acts in Civil Cases Concerning
Sexual Assault or Child Molestation
(a) In a civil case in which a claim for damages or other relief is predicated
on a party's alleged commission of conduct constituting an offense of
sexual assault or child molestation, evidence of that party's commission of
another offense or offenses of sexual assault or child molestation is
admissible and may be considered as provided in Rule 413 and Rule 414
of these rules.
(b) A party who intends to offer evidence under this Rule shall disclose the
evidence to the party against whom it will be offered, including statements
of witnesses or a summary of the substance of any testimony that is
expected to be offered, at least fifteen days before the scheduled date of
trial or at such later time as the court may allow for good cause.
(c) This rule shall not be construed to limit the admission or consideration
of evidence under any other rule.
Notes on 415
a. Sexual Assault Cases Generally
b. Date Rape and Culture of Acceptance—Friedland
1.) Culture of acceptance results from 2 predominant stereotypes:
the punished female and the aggressive male
2.) Culture of acceptance generates latent gender based prejudice
in date-rape cases
C. Applicable Objections
1. Evidence of other sexual behavior or predisposition of the victim of
sexual misconduct is not admissible.
a. Response: Victim placed reputation into controversy.
b. Response: Sexual behavior is intrinsic to the alleged sexual
misconduct and so is not other sexual behavior.
D. Applicable Case Law
1. Moe v. Avions
a. Federal trial court in diversity action excluded evidence of postplane crash warning on suction filters pursuant to rule 407
24
b. Held: Whether or not to exclude via 407 (or similar state rule) is a
matter of state policy.
1.) Where there is a conflict that is based on policy not relevancy or
truth seeking, then state controls b/c there is no federal products
liability law and elements of causes of action are governed by
state law and variation on 407-type rules is tied in substantive
causes of action.
2. Charter v. Chleborad
a. Medical malpractice case held that the plaintiff could use evidence
of insurance to show potential bias of witnesses
25
VII. Examination and Impeachment of Witnesses
A. Overview
1. Types of Restrictions
a. Competency of Witnesses
g. Substantive limits to keep suspect evidence out
h. Form limitations
2. Direct Examination Purposes
a. Elicit information relevant to cause of action, claim or defense
b. 3 parts to testimony: background, scene and action.
3. Cross Examination Purposes
a. Destroy credibility
b. Test capacity
c. Fill in gaps
d. Corroboration
e. Cross examination allows you to assume facts not in evidence.
4. impact and value of witness testimony depend on:
a. perception
b. memory
c. narration
d. sincerity
B. Applicable Rules
1. Rule 602
A witness may not testify to a matter unless evidence is introduced
sufficient to support a finding that the witness has personal knowledge
of the matter. Evidence to prove personal knowledge may, but need
not, consist of the witness’ own testimony. This rule is subject to the
provisions of 703 relating to opinion testimony by expert witnesses.
Notes on 602
a. Do not need absolute certainty
b. Opinion testimony needs to be based on personal knowledge
c. Expert witnesses exempt
2. Rule 607 Who may impeach
The credibility of a witness may be attacked by any party including the
party calling the witness
Notes on 607
a. Common law: “Voucher Rule” could not attack own witnesses
credibility
1.) Exception: Adverse witness and you were surprised they were
hostile.
2.) Adverse construed to mean positively harmful—narrower than
Rule 611(c) definition.
b. 5 Ways to impeach
1.) prior inconsistent statement (Rule 613)
a) to be admissible for truth of matter must meet 801(d) or
hearsay exception
27
b) 403 objection if call witness just as conduit for hearsay to
impeach with prior inconsistent statements
2.) Untruthful character (Rule 608- 609)
3.) Defects of Capacity
a) Infirmity that affected perception, accuracy of memory, or
ability to testify accurately or lack of opportunity to observe
event
b) Examples:
i.
Mental illness or infirmity affecting capacity at event or
trial
ii.
Alcohol or drug use
iii.
Bad eyesight, memory, hearing—but court reluctant to
allow experts to testify about reliability of eyewitness
testimony in general
iv.
Testimonial capacity: perception, memory, narration,
sincerity
4.) Contradictions
a) Can use extrinsic evidence to prove contradiction of material
facts but not collateral facts
i.
Traditional rule: Must have probative value to merits
of case independent of impact on credibility
ii.
Courts sometimes allow if the witness were unlikely to
be mistaken about the collateral matter were their story
true
5.) Bias
a) Motivation to lie: personal relationship, financial stake, penal
interest, fear
b) Can use extrinsic evidence to show bias
c) No special foundation, but some circuits require that
impeached must have opportunity to admit or deny facts
c. General Rule on extrinsic evidence: If extrinsic impeachment
evidence is offered it must be in the form of reputation or opinion or
for some additional reason beyond veracity such as bias, a fact in
issue, testimonial capacities or conviction of a crime. Not
admissible for collateral matters.
d. Bolstering
1.) General Rule: Can’t Bolster Witness before attack
a) Exception: Most Circuits allow prosecution to show
cooperation agreements
e. Removing the Sting—bring out impeaching information prior to
attack
f. Rehabilitation
1.) General Rule: Rehabilitation of Witness must correlate to attack
3. Rule 608 Evidence of Character and Conduct of Witness
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a. Opinion and Reputation Evidence of Character. The credibility of a
witness may be attacked or supported by evidence in the form of
opinion and reputation, but subject to these limitations:
1.) The evidence may refer only to character for truthfulness or
untruthfulness and
2.) Evidence of truthful character is admissible only after the
character of the witness for truthfulness has been attacked by
opinion or reputation evidence or otherwise
3.) May not testify about truthfulness of other witnesses testimony
b. Specific instances of conduct. Specific instances of the conduct of a
witness, for the purpose of attacking or supporting the witness’s
credibility other than conviction of a crime as provided in rule 609
may not be proved by extrinsic evidence. They may however in the
discretion of the court, if probative of truthfulness or untruthfulness
be inquired into on cross-examination of the witness:
1.) Concerning the witness’ character for truthfulness or
untruthfulness
2.) Concerning the character for truthfulness or untruthfulness of
another witness as to which character the witness being crossexamined has testified
The giving of testimony, whether by an accused or by another
witness, does not operate as a waiver of the accused or witness’s
privilege against self-incrimination when examined with respect to
matters which relate only to credibility.
Notes on 608
a. Specific Acts:
1.) Must have good faith basis
2.) Can ask about specific act, but not whether was arrested or
charged
3.) Bound by answer
4.) Limited by Rule 403
5.) Admissible for other purpose
a) Relevant to material fact
b) Bias
c) Rebut factual assertions
d) Cure misleading statements
e) Memory
f) Perception
g) knowledge
h) But limit to amount of “bootstrapping” courts will allow to do
b. Character Witness Cross-examination
1.) Must have good faith basis before ask “Have you heard” or “Did
you know?”
2.) Character evidence for impeachment strictly limited to veracity
c. General background information is not impermissible bolstering
d. Impeach by intrinsic evidence: depends on answers of witness
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e. Impeach by extrinsic evidence: depends on outside witness,
documents or other evidence
4. Rule 609 Impeachment by Evidence of Conviction of Crime
a. General rule. For the purpose of attacking the credibility of a
witness,
(1) evidence that a witness other than an accused has been
convicted of a crime shall be admitted, subject to Rule 403, if the
crime was punishable by death or imprisonment in excess of one
year under the law under which the witness was convicted, and
evidence that an accused has been convicted of such a crime shall
be admitted if the court determines that the probative value of
admitting this evidence outweighs its prejudicial effect to the
accused; and
(2) evidence that any witness has been convicted of a crime shall
be admitted if it involved dishonesty or false statement, regardless
of the punishment.
(b) Time limit. Evidence of a conviction under this rule is not
admissible if a period of more than ten years has elapsed since the
date of the conviction or of the release of the witness from the
confinement imposed for that conviction, whichever is the later
date, unless the court determines, in the interests of justice, that the
probative value of the conviction supported by specific facts and
circumstances substantially outweighs its prejudicial effect.
However, evidence of a conviction more than 10 years old as
calculated herein, is not admissible unless the proponent gives to
the adverse party sufficient advance written notice of intent to use
such evidence to provide the adverse party with a fair opportunity to
contest the use of such evidence.
(c) Effect of pardon, annulment, or certificate of rehabilitation.
Evidence of a conviction is not admissible under this rule if (1) the
conviction has been the subject of a pardon, annulment, certificate
of rehabilitation, or other equivalent procedure based on a finding of
the rehabilitation of the person convicted, and that person has not
been convicted of a subsequent crime which was punishable by
death or imprisonment in excess of one year, or (2) the conviction
has been the subject of a pardon, annulment, or other equivalent
procedure based on a finding of innocence.
(d) Juvenile adjudications. Evidence of juvenile adjudications is
generally not admissible under this rule. The court may, however, in
a criminal case allow evidence of a juvenile adjudication of a
witness other than the accused if conviction of the offense would be
admissible to attack the credibility of an adult and the court is
satisfied that admission in evidence is necessary for a fair
determination of the issue of guilt or innocence.
(e) Pendency of appeal. The pendency of an appeal therefrom
30
does not render evidence of a conviction inadmissible. Evidence of
the pendency of an appeal is admissible
Notes on 609
a. Crimes involving dishonesty and false statement tends to be
narrowly defined: perjury, fraud, false pretense,
1.) Some courts allow: counterfeiting, tampering with electric meter,
knowingly passing bad checks, failure to file income tax returns.
2.) Also called “crimen falsi”
3.) Rule 403 does not apply to Rule 609(a)(2) but time limit does
apply
b. When the accused is witness, balancing test applies. Many courts
use 5 factor balancing test
1.) Impeachment value of the prior crime
2.) Point in time of conviction and witnesses subsequent history
3.) Similarity between past crime and charged crime—more alike
more risk of prejudice
4.) Importance of defendant’s testimony
5.) Centrality of credibility issue
c. Ordinarily allowed to show nature, time, place and punishment for
each conviction but not details of crime.
d. Often use motion in limine prior to trial to get a ruling on prior
convictions as impeachment
e. “Conviction”
1.) indictment, arrest, charged not enough, but incarceration not
required
f. Luce v. U.S.
1.) Held Defendant who looses a motion in limine to exclude a prior
conviction and then does not testify suffers no harm and no
appealable error.
5. .Rule 610 Religious Beliefs or Opinions
Evidence of the beliefs or opinions of a witness on matters of religion is
not admissible for the purpose of showing that by reason of thief nature
the witness’s credibility is impaired or enhanced.
Notes on 610
a. can be used to show bias
b. can be used where bears on merits of case
6. Rule 611 Mode and Order of Interrogation and Presentation
(a) Control by court. The court shall exercise reasonable control over
the mode and order of interrogating witnesses and presenting
evidence so as to (1) make the interrogation and presentation effective
for the ascertainment of the truth, (2) avoid needless consumption of
time, and (3) protect witnesses from harassment or undue
embarrassment
(b) Scope of cross-examination. Cross-examination should be limited
to the subject matter of the direct examination and matters affecting
the credibility of the witness. The court may, in the exercise of
31
discretion, permit inquiry into additional matters as if on direct
examination.
(c) Leading questions. Leading questions should not be used on the
direct examination of a witness except as may be necessary to
develop the witness' testimony. Ordinarily leading questions should be
permitted on cross- examination. When a party calls a hostile witness,
an adverse party, or a witness identified with an adverse party,
interrogation may be by leading questions.
Notes on 611
a. Gives wide discretion to trial court
1.) Court may set time limit on party’s presentation of its case
2.) Can limit redirect to matters brought out in cross-examination
but some courts allow new matters on re-direct
3.) Discretion to allow summary charts
4.) May allow jurors to ask questions of witnesses in rare
circumstances
b. 18 USCA § 3509(b)(1) gives alternative means for child victims of
abuse to testify:
c. Leading Question: One which suggests an answer
1.) Look at:
a) Context
b) Tone of voice
c) Body language
d) Conduct
2.) General rule: direct examination should not use leading
questions
a) Exceptions
i.
When necessary because of witness infirmity/inability
to otherwise answer
ii.
Preliminary or undisputed maters
iii.
Adverse party, hostile witness
d. Objections to Form:
1.) Ambiguous, confusing, unintelligible
2.) Argumentative
3.) Asked and answered
4.) Assuming facts not in evidence
5.) Compound question
6.) Harassing, embarrassing the witness
7.) Lack of foundation
8.) Misstating testimony, misleading
9.) Narrative
10.) Non responsive answer
11.) Repetitious
12.) Speculation, conjecture
7. Rule 612 Writing Used to Refresh Memory
32
Except as otherwise provided in criminal proceedings by section 3500
of title 18, United States Code, if a witness uses a writing to refresh
memory for the purpose of testifying, either-(1) while testifying, or
(2) before testifying, if the court in its discretion determines it is
necessary in the interests of justice,
an adverse party is entitled to have the writing produced at the hearing,
to inspect it, to cross-examine the witness thereon, and to introduce in
evidence those portions which relate to the testimony of the witness. If
it is claimed that the writing contains matters not related to the subject
matter of the testimony the court shall examine the writing in camera,
excise any portions not so related, and order delivery of the remainder
to the party entitled thereto. Any portion withheld over objections shall
be preserved and made available to the appellate court in the event of
an appeal. If a writing is not produced or delivered pursuant to order
under this rule, the court shall make any order justice requires, except
that in criminal cases when the prosecution elects not to comply, the
order shall be one striking the testimony or, if the court in its discretion
determines that the interests of justice so require, declaring a mistrial.
Notes on 612
a. Present recollection refreshed not the same thing as past
recollection recorded
1.) Refreshing object is not in evidence
2.) Past recollection recorded used when refreshing is not
successful .
b. Court may allow to “jog” memory with leading questions
c. How to refresh with writings:
1.) Establish that memory is exhausted
2.) Show witness writing. Allow to read silently. Remove.
3.) If witness, says know recalls matter independently of wring, may
testify to recollection.
a) May not use as conduit to testify to contents of writing
d. Any type of writing okay—does not have to be by witness or
contemporaneous with event or admissible or authenticated
8. Rule 613 Prior Statements of Witness
(a) Examining witness concerning prior statement. In examining a
witness concerning a prior statement made by the witness, whether
written or not, the statement need not be shown nor its contents
disclosed to the witness at that time, but on request the same shall be
shown or disclosed to opposing counsel.
(b) Extrinsic evidence of prior inconsistent statement of witness.
Extrinsic evidence of a prior inconsistent statement by a witness is not
admissible unless the witness is afforded an opportunity to explain or
deny the same and the opposite party is afforded an opportunity to
interrogate the witness thereon, or the interests of justice otherwise
33
require. This provision does not apply to admissions of a partyopponent as defined in rule 801(d)(2).
Notes on 613
a. Prior-inconsistent statement is only hearsay if offered for truth. Prior
inconsistent statement may be offered for truth when meets 801(d)
or a hearsay exception.
1.) 613 does not apply to admissions by party opponents.
b. May be impeached with any statements including those
inadmissible b/c of Miranda rights
c. Inconsistent does not have to mean direct contradiction:
1.) Test: Could jury reasonably find that the witness who believed
the truth of the facts testified to would have been unlikely to
make a prior statement of this nature?
2.) Prior silence/lack of detail—need circumstances such that
witness would have been expected to speak/provide greater
detail.
Post-Miranda rights warning silence can not be used against
accused, but pre-warning silence may be
3.) Prior claim of lack of memory is inconsistency but present claim
is not
4.) No inconsistency if witness has not yet testified
d. Common Law: The Rule in the Queen’s Case required showing
witness inconsistent statement prior to questioning
1.) Fed rules allow impeachment by extrinsic proof prior to
questioning witness
2.) Common law foundation:
a) Repeat inconsistent statement.
b) Ask if has said something contrary.
c) Identify person made prior statement to.
d) Identify context.
e) Read statement.
f) Ask to confirm
e. May not use extrinsic proof to prove inconsistent statement on
collateral matters
f. “opportunity” is all that is needed—okay if witness can come back
later to explain
9. Rule 614 Calling and Interrogation of Witnesses by the Court
(a) Calling by court. The court may, on its own motion or at the
suggestion of a party, call witnesses, and all parties are entitled to
cross-examine witnesses thus called.
(b) Interrogation by court. The court may interrogate witnesses,
whether called by itself or by a party.
(c) Objections. Objections to the calling of witnesses by the court or to
interrogation by it may be made at the time or at the next available
opportunity when the jury is not present.
34
Notes on 614
a. Decision left to trial court’s discretion
10.
Rule 615 Exclusion of Witnesses “Rule on Witnesses”
At the request of a party the court shall order witnesses excluded
so that they cannot hear the testimony of other witnesses, and it
may make the order of its own motion. This rule does not authorize
exclusion of (1) a party who is a natural person, or (2) an officer or
employee of a party which is not a natural person designated as its
representative by its attorney, or (3) a person whose presence is
shown by a party to be essential to the presentation of the party's
cause, or (4) a person authorized by statute to be present.
Notes on 615
a. Natural person = criminal defendant
b. Want more than one person in court room?
1.) Court’s discretion, but usually designate one as agent and show
other is essential.
C. Applicable Objections
1. The question is ambiguous.
2. The question is argumentative and counsel is trying to make an
argument to the jury.
3. Witness has already answered the question
a.
Response: Opposing Council asked question. I have not.
4. Question assumes Fact not in evidence.
a. Response: Fact can be inferred from X which has been proven.
b. Response: Fact will be proven during testimony of X.
5. Counsel is asking compound question
6. Question is confusing.
7. Counsel is harassing/embarrassing the witness
8. Counsel is leading the witness.
a. Response: Yes/ no answer does not make leading question.
9. Counsel is asking question that calls for narrative testimony
10.
Question is unduly repetitious.
11.
Question is intelligible
12.
Question goes beyond scope of matters raised on direct
examination.
a. Response: Subject matter of direct examination includes all
inferences and implications.
13.
Counsel is offering extrinsic evidence without having questioned
the witness about it.
a. Response: Witness is available to be recalled.
b. Response Rules do not require be asked about bias before bias is
shown.
14.
Rule 608 does not allow extrinsic evidence of specific instances of
a witnesses conduct.
15.
Counsel is trying to impeach her own witness with a prior
inconsistent statement. The probative value of the statement for
35
impeachment purposes is substantially outweighed by the danger of
unfair prejudice and misleading the jury
16.
Counsel is seeking to introduce evidence on a collateral matter and
the probative value of such evidence is substantially outweighed by the
danger of unfair prejudice and confusion of the issues and misleading
the jury, as well as by considerations of undue delay.
a. Response: Not being offered solely to impeach—independently
relevant.
b. Response: Capacity, bias admissible.
17.
Counsel is improperly trying to impeach with criminal conviction.
18.
Counsel may not rehabilitate witness by offering evidence of prior
consistent statement.
19.
Have to meet 801(d)(1)(B)—rebutting an express or implied
charge of recent fabrication or improper influence or motive.
a. Response: Independently admissible under a hearsay exception.
20.
Counsel is offering extrinsic evidence to prove that a witness made
a prior inconsistent statement without affording the witness an
opportunity to explain or deny the statement.
21.
Counsel is offering extrinsic evidence to prove that a witness made
a prior inconsistent statement without affording the witness an
opportunity to explain or deny the statement.
22.
Invocation of a constitutionally or statutorily recognized privilege
cannot ever be burdened by a comment or adverse inference.
a. Response: Witness is not a party.
b. Response: civil case.
D. Applicable Case Law
1. Green v. Bock Laundry Machine Co.
a. Products liability action brought out that plaintiff had been convicted
of burglary and conspiracy.
b. Held: Plaintiff and defendant have equal rights to use 609 to
impeach witnesses
36
VIII. Opinions and Expert Testimony
A. Applicable Rules
1. Rule 701 Opinion Testimony by Lay Witness
If the witness is not testifying as an expert, the witness' testimony in
the form of opinions or inferences is limited to those opinions or
inferences which are (a) rationally based on the perception of the
witness, (b) helpful to a clear understanding of the witness' testimony
or the determination of a fact in issue, and (c) not based on scientific,
technical, or other specialized knowledge within the scope of Rule 702.
Notes on 701
a. Don’t want lay opinion to be pretext for expert
b. “Rational basis” test ensures personal knowledge and that a
reasonable person could make the opinion based on the facts
c. Helpfulness Factors
1.) Goes to heart of case?
2.) Factual material in opinion?
3.) Can witness give information in form of specific fact?
4.) Is jury in an equal position to draw the conclusion from the
data?
5.) Need for the testimony?
d. General Rule: lay witnesses limited to using senses to describe
facts
1.) Role of jury to make inferences
2.) Don’t want to distract jury/waste time
3.) Limiting to facts reduces chances of facts being distorted
4.) Promote cross-examination
e. Expert testimony must meet 702
f. Grounds for objections:
1.) If the witness lacks expertise, the opinion is not rational or
helpful
2.) If the witness does not understand the legal standard, then
testimony as to mixed questions of law and fact will not be
helpful
3.) If testimony does not inform jury of underlying facts then not
helpful.
2. Rule 702 Testimony by Experts
If scientific, technical, or other specialized knowledge will assist the
trier of fact to understand the evidence or to determine a fact in issue,
a witness qualified as an expert by knowledge, skill, experience,
training, or education, may testify thereto in the form of an opinion or
otherwise, if (1) the testimony is based upon sufficient facts or data, (2)
the testimony is the product of reliable principles and methods, and (3)
the witness has applied the principles and methods reliably to the facts
of the case.
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Notes on 702
a. Conditions for Expert Testimony
1.) Qualify as expert
a) Opposing counsel should be allowed to conduct limited voir
dire cross examination to test the qualifications of expert
before testifies to substance
b) Licensure or certification not required
c) Qualifications relative to opinions will give
2.) Subject matter appropriate for expert testimony
3.) Expert testimony will assist fact finder
4.) Reliability
a) Daubert Test (Replaces Frye test of general acceptance)
i.
Flexible balancing test
(a) Tested?
(b) Subject to peer review and publication?
(c) General acceptance?
(d) Rate of error?
ii.
Additional factors adopted by other courts
(a) Research independent of litigation?
(b) Alternatives?
(c) Care?
(d) Analytical gap between research and conclusions?
b) 702 amendments codify Kumho Tire’s holding that Daubert
applies to non-scientific expert testimony as well
c) ways to determine reliability within the discretion of the Trial
Court
i.
pre trial hearings
ii.
rulings on paper record
iii.
hearing outside juries presence
iv.
post-trial motion
b. expert does not need personal knowledge
c. Not admitted
1.) Lack of relevance
2.) Jury and witness are in same position to draw conclusion based
on evidence
3.) Expert testimony to show that another witness is lying or telling
the truth
4.) Speculative or incomplete data,
5.) questionable theories, (i.e. hypnosis)
6.) too conjectural—i.e. doubly qualified statements
7.) too conclusory,
8.) too big a gap between data and conclusions
9.) beyond area of expertise
10.) lack of understanding of legal standard
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3. Rule 703 Bases of Opinion Testimony by Experts
The facts or data in the particular case upon which an expert bases an
opinion or inference may be those perceived by or made known to the
expert at or before the hearing. If of a type reasonably relied upon by
experts in the particular field in forming opinions or inferences upon the
subject, the facts or data need not be admissible in evidence in order
for the opinion or inference to be admitted. Facts or data that are
otherwise inadmissible shall not be disclosed to the jury by the
proponent of the opinion or inference unless the court determines that
their probative value in assisting the jury to evaluate the expert's
opinion substantially outweighs their prejudicial effect.
Notes on 703
a. Expert’s opinion may be based on:
1.) Facts within personal knowledge
2.) Facts presented at trial
a) Can ask hypothetical question—but facts comprising
question must be in evidence by the close of the case
3.) Facts presented outside of court if of a type reasonably relied on
by experts
a) May be based solely on inadmissible evidence like hearsay
i.
But can not just be conduit for hearsay
ii.
Can not rely on constitutionally or statutorily banned
materials
b. Reasonable reliance
1.) either expert or other experts may testify about sources
2.) court looks at the underlying facts to determine whether reliance
is reasonable
3.) supposed to only apply when rely on facts or data not in
evidence but many courts apply regardless
4. Rule 704 Opinion on Ultimate Issue
a. Except as provided in subdivision (b), testimony in the form of an
opinion or inference otherwise admissible is not objectionable
because it embraces an ultimate issue to be decided by the trier of
fact.
(b) No expert witness testifying with respect to the mental state or
condition of a defendant in a criminal case may state an opinion or
inference as to whether the defendant did or did not have the
mental state or condition constituting an element of the crime
charged or of a defense thereto. Such ultimate issues are matters
for the trier of fact alone.
Notes on 704
a. Trial Court’s discretion as to testimony on ultimate issues, but
reviewing court looks at:
1.) Extent expert relied on underlying facts
2.) Extent expert conveyed information in form of specific facts
3.) Did other party try to do same thing?
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4.)
5.)
6.)
7.)
8.)
Through cross-ex?
Does legal terms used by expert correspond to lay meaning?
Facts not legal conclusions given?
Did it look like expert was instructing on law?
Did trial court give an instruction stating that the jury was not
bound by the expert?
b. Testimony on use/possession in drug cases—is it clear that the
expert is speaking in generalities?
c. Otherwise admissible—may still be barred for:
1.) Lay witness not capable of giving opinion
2.) Opinion beyond expertise
3.) Not helpful
4.) Probative value substantially outweighed by prejudice,
misleading or confusion (403)
5.) Lay witness not qualified as an expert
6.) Inadequate understanding of law
7.) Not necessary
8.) Amounts to choosing up sides
d. Exception Applies to any mental state not just insanity
5. Rule 705
The expert may testify in terms of opinion or inference and give
reasons therefore without first testifying to the underlying facts or data,
unless the court requires otherwise. The expert may in any event be
required to disclose the underlying facts or data on cross-examination.
Notes on 705
a. Common law: disclosure of facts was required
b. Common law required hypothetical question that either asked to
assume to truth of other witnesses or gave facts which gave data,
showed jury the basis for the opinion, and limited the opinion to
facts in evidence.
1.) Can still use hypothetical question. Trial Court has discretion of
limiting.
c. Courts may require prior graduation
d. What can be disclosed  Rule 703
1.) Admissible facts can be disclosed without limiting instruction
2.) Inadmissible facts that meet 703, court can do a limiting
instruction, might limit amount of detail
6. Rule 706 Court Appointed Experts
(a) Appointment. The court may on its own motion or on the motion of
any party enter an order to show cause why expert witnesses should
not be appointed, and may request the parties to submit nominations.
The court may appoint any expert witnesses agreed upon by the
parties, and may appoint expert witnesses of its own selection. An
expert witness shall not be appointed by the court unless the witness
consents to act. A witness so appointed shall be informed of the
witness' duties by the court in writing, a copy of which shall be filed
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with the clerk, or at a conference in which the parties shall have
opportunity to participate. A witness so appointed shall advise the
parties of the witness' findings, if any; the witness' deposition may be
taken by any party; and the witness may be called to testify by the
court or any party. The witness shall be subject to cross-examination
by each party, including a party calling the witness.
(b) Compensation. Expert witnesses so appointed are entitled to
reasonable compensation in whatever sum the court may allow. The
compensation thus fixed is payable from funds which may be provided
by law in criminal cases and civil actions and proceedings involving
just compensation under the fifth amendment. In other civil actions and
proceedings the compensation shall be paid by the parties in such
proportion and at such time as the court directs, and thereafter
charged in like manner as other costs.
(c) Disclosure of appointment. In the exercise of its discretion, the court
may authorize disclosure to the jury of the fact that the court appointed
the expert witness.
(d) Parties' experts of own selection. Nothing in this rule limits the
parties in calling expert witnesses of their own selection.
Notes on 706
a.
B. Applicable Objections
1. The witness is being asked to state a conclusion of law.
a. Expert Witness can testify on ultimate issue and about legal
standards but must show: within scope of experience, familiar with
legal standard, appropriate subject for expert testimony, and
helpful.
b. Lay witness must meet rule 701—based on personal knowledge,
knowledgeable about standard, opinion does not require special
expertise, and helpful.
2. The witness lacks a sufficient basis for the opinion.
3. An expert may not disclose to the jury otherwise inadmissible hearsay
even if she based her opinion upon it. Whatever probative values
disclosure may have in helping the jury evaluate the expert’s opinion
does not substantially outweighs the danger that the jury will use the
hearsay for its truth.
4. The witness is not qualified as an expert [ the witness is not qualified to
give an opinion on this particular topic].
5. The expert’s opinion is based solely on hearsay of a type not
reasonably relied on by experts in the field.
6. The witness’s opinion is speculative or conjectural or lacks a
reasonable degree of certainty.
7. This expert’s opinion is not helpful either in understanding the evidence
or determining a fact in issue.
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8. Counsel is posing a hypothetical question that contains facts not
adduced in evidence.
a. Response: Facts need be established to a high degree of certainty
or refer to all relevant facts in evidence and may be facts not in
evidence if of type reasonably relied on by experts.
9. The witness is not allowed to state his opinion that the defendant
possessed or lacked the required mental state.
10.
My opponent is offering expert testimony based on scientific tests
or theories that are not scientifically reliance and that will not assist the
fact finder.
11.
The questions call for speculation.
a. Beyond scope of expertise or lack of personal knowledge.
b. Response: Witnesses do not have to be absolutely certain.
12.
The witness is being asked to testify that she believes another
witness is testifying truthfully or untruthfully.
13.
The witness is testifying to an ultimate issue.
a. Response: Allowed, if “otherwise admissible”
C. Applicable Case Law
1. Frye v. United States (Old Test)
a. Defendant wanted to offer lie detector test
b. Rule: Novel scientific testimony must be “generally accepted” in
particular field.
2. United States v. Downing (3rd Circuit)
a. Defendant wanted to offer testimony about unreliability of
eyewitness testimony.
b. Held: “Helpfulness” under the federal rules is broader than general
acceptance, look at 1) reliability of technique 2) possibility of
overwhelming, misleading, or confusing the jury 3) connection to
disputed factual issues.
3. Daubert v. Merrell Dow Pharmaceuticals
a. Plaintiffs were trying to prove that drug caused birth defects.
b. Held: Rule 702 replaces Frye. Flexible balancing test to establish
evidentiary relevance and reliability by showing scientific validity:
known rate of error, general acceptance, publication/peer review,
tested.
4. United States v. Rincon (9th Cir.)
a. Defendant wanted to offer evidence about unreliability of
eyewitness identifications.
b. Held: Evidence not admissible because no research was detailed
for a determination of scientific validity, testimony would not have
been helpful as jury got similar information in instruction from court.
5. People v. Chambers (NY)
a. At issue was admissibility of salvia testing.
b. Court admitted: Technique had been used for several years, had
quality controls, used in blind samples, had been peer reviewed,
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just because first time used in court does not mean not reliable.
Defense had argued not generally accepted.
6. General Electric v. Joiner
a. Held: Standard of Review in Daubert cases is abuse of discretion.
Further, while Daubert’s focus is on methodology and principles,
conclusions are inherently intertwined methods and principles and it
is appropriate for the TC to day there is too big a gap between the
data and the opinion.
7. Kumho Tire v. Carmichael
a. Held: Daubert’s flexible test to determine reliability applies to all 702
experts: scientific, technical and other specialized knowledge—may
ask Daubert questions or other necessary questions based on
circumstances.
8. State v. Kelly (*NJ Pre Daubert)
a. Held: For a new field of research like “battered woman’s syndrome”
must show general acceptance and reliability. Can be shown by:
testimony about general acceptance, or authoritative writings
indicating general acceptance of underlying premises or by judicial
opinions.
9. United States v. Piccinonna (Prior to Daubert 11th Cir).
a. Defendant wanted to admit a polygraph test.
b. Held: Per se ban on polygraphs may not be necessary if concerns
about reliability, standardization, and undue impact on the jury can
be addressed. Admissible when: both parties stipulate, to impeach
or corroborate witness’s testimony if: 1) adequate notice 2) other
side has chance to give test over same questions 3) follows rules
for impeachment. Trial judge can still deny if qualifications are
unacceptable, unfairly prejudicial, or irrelevant/ improper questions.
IX.
Hearsay
A. Basic principles
1. hearsay generally not admissible because perception, memory, and
narration (sincerity, ambiguity) are key concerns which are addressed
by having witnesses present, testifying under oath, and subject to
cross-examination
B. Applicable Rules
1. Rule 801 Definitions
The following definitions apply under this article:
(a) Statement. A "statement" is (1) an oral or written assertion or (2)
nonverbal conduct of a person, if it is intended by the person as an
assertion.
(b) Declarant. A "declarant" is a person who makes a statement.
(c) Hearsay. "Hearsay" is a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in evidence to
prove the truth of the matter asserted.
(d) Statements which are not hearsay. A statement is not hearsay if-(1) Prior statement by witness. The declarant testifies at the trial or
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hearing and is subject to cross-examination concerning the statement,
and the statement is (A) inconsistent with the declarant's testimony,
and was given under oath subject to the penalty of perjury at a trial,
hearing, or other proceeding, or in a deposition, or (B) consistent with
the declarant's testimony and is offered to rebut an express or implied
charge against the declarant of recent fabrication or improper influence
or motive, or (C) one of identification of a person made after perceiving
the person; or
(2) Admission by party-opponent. The statement is offered against a
party and is (A) the party's own statement, in either an individual or a
representative capacity or (B) a statement of which the party has
manifested an adoption or belief in its truth, or (C) a statement by a
person authorized by the party to make a statement concerning the
subject, or (D) a statement by the party's agent or servant concerning a
matter within the scope of the agency or employment, made during the
existence of the relationship, or (E) a statement by a coconspirator of a
party during the course and in furtherance of the conspiracy. The
contents of the statement shall be considered but are not alone
sufficient to establish the declarant's authority under subdivision (C),
the agency or employment relationship and scope thereof under
subdivision (D), or the existence of the conspiracy and the participation
therein of the declarant and the party against whom the statement is
offered under subdivision (E).
Notes on 801
a. Definition of Hearsay:
1.) Out-of-court statement
a) Non-verbal conduct: Key is was it intended as an assertion
i.
I.e. admitted to psychiatric hospital—some courts
have said intent to communicate that X is insane
b) Hearsay rule not violated if matter is implied by, but not
asserted in, the out-of-court statement
i.
Declarant did X, therefore Declarant must have
believed Y, and Y is fact of consequence to this litigation
(a) Key is are we trying to infer fact of consequence from
belief—if don’t have to infer belief from act, just act is
significant not a problem.
ii.
Wright is common law rule—hearsay because relies
on assertions of persons not in court.
iii.
Rules: okay if offering for implied assertions.
c) Out of this particular court proceeding—any proceeding
independent of trial
2.) Offered to prove the truth of the matter asserted
a) Not hearsay if the making of the statement is itself relevant
independent of truth of the statement
i.
Have person we can test in court about whether or
not statement was made.
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ii.
Question: Is statement offered just because someone
said it so it must be more likely to be true or is there
another theory of logical relevance?
b) Not hearsay if Verbal act or operative fact: making of
statement has substantive legal significance
i.
I.e. ballots, words which are a conveyance, consent,
threats, wills, offer, acceptance, slander
ii.
Words are legally operative
c) Not hearsay “verbal parts of acts” necessary to establish
legal character of act
i.
i.e. gift, loan, bribe, bet, payment of debt
d) Not hearsay if offered to prove the effect on the mind of the
listener
e) Res gestae exception—narrow exception where necessary
to “complete the story”
3.) Prior statement by witness
a) Statements which do not meet 801(d) may be admissible to
impeach, but may need limiting instruction that statements
are to be used only for credibility
b) Other proceeding includes grand jury but does not extend to
statements made at police station
c) Prior consistent statements must predate bad motive
i.
Key is when did motive arise?
ii.
Statement does not have to be under oath
d) Available for cross-examination: okay if able to be recalled
e) Prior ID: does not have to be by testifying witness if
declarant is available for cross-ex
4.) Admission by party opponent
a) Does not have to be against interest
b) Admission by silence
i.
Did declarant adopt statement by conduct?
ii.
Not admissible if after being given Miranda warnings
iii.
Would a reasonable person have spoken up if not
true?
c) Not necessary that declarant be identified
d) Conspiracy: does not need to be charged only need prima
facie evidence of conspiracy
e) Admissible even if lack of personal knowledge or lay opinion
f) Judicial admissions—made in pleadings, motions—can’t
dispute at trial—those facts are found.
i.
Can dispute testimony at trial.
g) Admissions by agent
i.
Okay if employee not usually spokesperson if within
course and scope of employment.
5.) Declarant = human
a) Can be same person as witness or different
45
b. How to get around hearsay: describe events: i.e. Did you speak to
X? Then what happened?
2. Rule 802 Hearsay Rule
Hearsay is not admissible except as provided by these rules or by
other rules prescribed by the Supreme Court pursuant to statutory
authority or by Act of Congress.
3. Rule 803 Hearsay Exceptions; Availability of Declarant Immaterial
The following are not excluded by the hearsay rule, even though the
declarant is available as a witness:
(1) Present sense impression. A statement describing or explaining an
event or condition made while the declarant was perceiving the event
or condition, or immediately thereafter.
(2) Excited utterance. A statement relating to a startling event or
condition made while the declarant was under the stress of excitement
caused by the event or condition.
(3) Then existing mental, emotional, or physical condition. A statement
of the declarant's then existing state of mind, emotion, sensation, or
physical condition (such as intent, plan, motive, design, mental feeling,
pain, and bodily health), but not including a statement of memory or
belief to prove the fact remembered or believed unless it relates to the
execution, revocation, identification, or terms of declarant's will.
(4) Statements for purposes of medical diagnosis or treatment.
Statements made for purposes of medical diagnosis or treatment and
describing medical history, or past or present symptoms, pain, or
sensations, or the inception or general character of the cause or
external source thereof insofar as reasonably pertinent to diagnosis or
treatment.
(5) Recorded recollection. A memorandum or record concerning a
matter about which a witness once had knowledge but now has
insufficient recollection to enable the witness to testify fully and
accurately, shown to have been made or adopted by the witness when
the matter was fresh in the witness' memory and to reflect that
knowledge correctly. If admitted, the memorandum or record may be
read into evidence but may not itself be received as an exhibit unless
offered by an adverse party.
(6) Records of Regularly Conducted Activity.--A memorandum, report,
record, or data compilation, in any form, of acts, events, conditions,
opinions, or diagnoses, made at or near the time by, or from
information transmitted by, a person with knowledge, if kept in the
course of a regularly conducted business activity, and if it was the
regular practice of that business activity to make the memorandum,
report, record or data compilation, all as shown by the testimony of the
custodian or other qualified witness, or by certification that complies
with Rule 902(11), Rule 902(12), or a statute permitting certification,
unless the source of information or the method or circumstances of
46
preparation indicate lack of trustworthiness. The term "business" as
used in this paragraph includes business, institution, association,
profession, occupation, and calling of every kind, whether or not
conducted for profit.
(7) Absence of entry in records kept in accordance with the provisions
of paragraph (6). Evidence that a matter is not included in the
memoranda reports, records, or data compilations, in any form, kept in
accordance with the provisions of paragraph (6), to prove the
nonoccurrence or nonexistence of the matter, if the matter was of a
kind of which a memorandum, report, record, or data compilation was
regularly made and preserved, unless the sources of information or
other circumstances indicate lack of trustworthiness.
(8) Public records and reports. Records, reports, statements, or data
compilations, in any form, of public offices or agencies, setting forth (A)
the activities of the office or agency, or (B) matters observed pursuant
to duty imposed by law as to which matters there was a duty to report,
excluding, however, in criminal cases matters observed by police
officers and other law enforcement personnel, or (C) in civil actions
and proceedings and against the Government in criminal cases, factual
findings resulting from an investigation made pursuant to authority
granted by law, unless the sources of information or other
circumstances indicate lack of trustworthiness.
(9) Records of vital statistics. Records or data compilations, in any
form, of births, fetal deaths, deaths, or marriages, if the report thereof
was made to a public office pursuant to requirements of law.
(10) Absence of public record or entry. To prove the absence of a
record, report, statement, or data compilation, in any form, or the
nonoccurrence or nonexistence of a matter of which a record, report,
statement, or data compilation, in any form, was regularly made and
preserved by a public office or agency, evidence in the form of a
certification in accordance with rule 902, or testimony, that diligent
search failed to disclose the record, report, statement, or data
compilation, or entry.
(11) Records of religious organizations. Statements of births,
marriages, divorces, deaths, legitimacy, ancestry, relationship by blood
or marriage, or other similar facts of personal or family history,
contained in a regularly kept record of a religious organization.
(12) Marriage, baptismal, and similar certificates. Statements of fact
contained in a certificate that the maker performed a marriage or other
ceremony or administered a sacrament, made by a clergyman, public
official, or other person authorized by the rules or practices of a
religious organization or by law to perform the act certified, and
purporting to have been issued at the time of the act or within a
reasonable time thereafter.
(13) Family records. Statements of fact concerning personal or family
history contained in family Bibles, genealogies, charts, engravings on
47
rings, inscriptions on family portraits, engravings on urns, crypts, or
tombstones, or the like.
(14) Records of documents affecting an interest in property. The record
of a document purporting to establish or affect an interest in property,
as proof of the content of the original recorded document and its
execution and delivery by each person by whom it purports to have
been executed, if the record is a record of a public office and an
applicable statute authorizes the recording of documents of that kind in
that office.
(15) Statements in documents affecting an interest in property. A
statement contained in a document purporting to establish or affect an
interest in property if the matter stated was relevant to the purpose of
the document, unless dealings with the property since the document
was made have been inconsistent with the truth of the statement or the
purport of the document.
(16) Statements in ancient documents. Statements in a document in
existence twenty years or more the authenticity of which is established.
(17) Market reports, commercial publications. Market quotations,
tabulations, lists, directories, or other published compilations, generally
used and relied upon by the public or by persons in particular
occupations.
(18) Learned treatises. To the extent called to the attention of an
expert witness upon cross-examination or relied upon by the expert
witness in direct examination, statements contained in published
treatises, periodicals, or pamphlets on a subject of history, medicine, or
other science or art, established as a reliable authority by the
testimony or admission of the witness or by other expert testimony or
by judicial notice. If admitted, the statements may be read into
evidence but may not be received as exhibits.
(19) Reputation concerning personal or family history. Reputation
among members of a person's family by blood, adoption, or marriage,
or among a person's associates, or in the community, concerning a
person's birth, adoption, marriage, divorce, death, legitimacy,
relationship by blood, adoption, or marriage, ancestry, or other similar
fact of personal or family history.
(20) Reputation concerning boundaries or general history. Reputation
in a community, arising before the controversy, as to boundaries of or
customs affecting lands in the community, and reputation as to events
of general history important to the community or State or nation in
which located.
(21) Reputation as to character. Reputation of a person's character
among associates or in the community.
(22) Judgment of previous conviction. Evidence of a final judgment,
entered after a trial or upon a plea of guilty (but not upon a plea of nolo
contendere), adjudging a person guilty of a crime punishable by death
or imprisonment in excess of one year, to prove any fact essential to
48
sustain the judgment, but not including, when offered by the
Government in a criminal prosecution for purposes other than
impeachment, judgments against persons other than the accused. The
pendency of an appeal may be shown but does not affect admissibility.
(23) Judgment as to personal, family, or general history, or boundaries.
Judgments as proof of matters of personal, family or general history, or
boundaries, essential to the judgment, if the same would be provable
by evidence of reputation.
(24) [Transferred to Rule 807]
Notes on 803
a. Present sense impression—does not require personal knowledge
by witness but declarant must have personal knowledge
1.) Needs to be almost contemporaneous
b. Excited utterance: almost contemporaneous with event, no chance
for reflection
1.) Factors if lapse time was too long:
a) Length of lapse of time
b) Age of declarant
c) Physical and mental state
d) Characteristics of event
e) Subject matter
c. Then existing mental emotional or physical condition
1.) Codifies Hillmon doctrine allowing state of mind statements to
show declarant’s conduct at a subsequent time—intent
a) If statements do not require a voluntary act on part of
person, then more likely to come in because the event is in
the control of the declarant.
d. Statements for purpose of medical diagnosis or treatment
1.) Has to be related to diagnosis—not usually statements of fault
unless related to diagnosis and treatment
2.) Does not have to have been made to doctor—can be medical
person or family member
3.) Only statements by patient to doctor not doctor to patient
e. Business records
1.) Foundation
a) Record in course of regular business activity
b) Routine record
c) Made at or near time of event
d) Made by or from person with personal knowledge in course
of business
2.) Witness only needs knowledge of procedures under which
records were created
3.) “business” = any regular organized activity
4.) double hearsay
a) statements by persons with no business duty to report must
meet another hearsay statement to come in
49
5.) public records must meet 803(8) and can not come in as
business records
6.) Many states say waste of time to get custodian—just need
affidavit of records.
f. public records and reports
1.) foundation only needs to show that authentic and meets one of
the types specified
a) activities of office or agency,
b) matter observed pursuant to duty by law
c) factual finding from investigation
2.) exclusion for police officers only applies to observations in
investigation—not nonadversial records
g. learned treatises must be shown to be recognized in discipline as a
reliable authority
4. Rule 804 Hearsay Exceptions; Declarant Unavailable
(a) Definition of unavailability. "Unavailability as a witness" includes
situations in which the declarant-(1) is exempted by ruling of the court on the ground of privilege from
testifying concerning the subject matter of the declarant's statement; or
(2) persists in refusing to testify concerning the subject matter of the
declarant's statement despite an order of the court to do so; or
(3) testifies to a lack of memory of the subject matter of the declarant's
statement; or
(4) is unable to be present or to testify at the hearing because of death
or then existing physical or mental illness or infirmity; or
(5) is absent from the hearing and the proponent of a statement has
been unable to procure the declarant's attendance (or in the case of a
hearsay exception under subdivision (b)(2), (3), or (4), the declarant's
attendance or testimony) by process or other reasonable means.
A declarant is not unavailable as a witness if exemption, refusal, claim
of lack of memory, inability, or absence is due to the procurement or
wrongdoing of the proponent of a statement for the purpose of
preventing the witness from attending or testifying.
(b) Hearsay exceptions. The following are not excluded by the hearsay
rule if the declarant is unavailable as a witness:
(1) Former testimony. Testimony given as a witness at another hearing
of the same or a different proceeding, or in a deposition taken in
compliance with law in the course of the same or another proceeding,
if the party against whom the testimony is now offered, or, in a civil
action or proceeding, a predecessor in interest, had an opportunity and
similar motive to develop the testimony by direct, cross, or redirect
examination.
(2) Statement under belief of impending death. In a prosecution for
homicide or in a civil action or proceeding, a statement made by a
declarant while believing that the declarant's death was imminent,
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concerning the cause or circumstances of what the declarant believed
to be impending death.
(3) Statement against interest. A statement which was at the time of its
making so far contrary to the declarant's pecuniary or proprietary
interest, or so far tended to subject the declarant to civil or criminal
liability, or to render invalid a claim by the declarant against another,
that a reasonable person in the declarant's position would not have
made the statement unless believing it to be true. A statement tending
to expose the declarant to criminal liability and offered to exculpate the
accused is not admissible unless corroborating circumstances clearly
indicate the trustworthiness of the statement.
(4) Statement of personal or family history. (A) A statement concerning
the declarant's own birth, adoption, marriage, divorce, legitimacy,
relationship by blood, adoption, or marriage, ancestry, or other similar
fact of personal or family history, even though declarant had no means
of acquiring personal knowledge of the matter stated; or (B) a
statement concerning the foregoing matters, and death also, of another
person, if the declarant was related to the other by blood, adoption, or
marriage or was so intimately associated with the other's family as to
be likely to have accurate information concerning the matter declared.
(5) [Transferred to Rule 807]
(6) Forfeiture by wrongdoing. A statement offered against a party that
has engaged or acquiesced in wrongdoing that was intended to, and
did, procure the unavailability of the declarant as a witness.
Notes on 804
a. Former testimony
1.) Only necessary that other side had opportunity to crossexamine
b. “predecessor in interest” interpreted broadly in civil cases to mean
any party with similar interest and motive
c. Can be present but “unavailable”
d. statements against interest
1.) exculpatory statements need additional corroborating evidence
a) Factors:
i.
Relationship between declarant and accused
ii.
Made voluntarily after Miranda warnings?
iii.
Evidence that offered to get favor from authorities?
iv.
Motive
v.
Character of declarant
vi.
Did others hear>
vii.
Timing?
viii.
Spontaneous statement?
2.) Different than party admissions
a) Declarant must be unavailable—not a requirement in party
admissions
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b) Statements against interest do not have to be made by
parties or agents
c) Unlike party admissions, statements against interest must
against pecuniary, proprietatory, civil or penal interest
3.) Collateral statements not against interest do not come in
e. Dying declarations: need not have actually died, but need to have
believed that was dying.
5. Rule 805 Hearsay within Hearsay
Hearsay included within hearsay is not excluded under the hearsay
rule if each part of the combined statements conforms with an
exception to the hearsay rule provided in these rules.
6. Rule 806 Attacking and Supporting Credibility of Declarant
When a hearsay statement, or a statement defined in Rule
801(d)(2)(C), (D), or (E), has been admitted in evidence, the credibility
of the declarant may be attacked, and if attacked may be supported, by
any evidence which would be admissible for those purposes if
declarant had testified as a witness. Evidence of a statement or
conduct by the declarant at any time, inconsistent with the declarant's
hearsay statement, is not subject to any requirement that the declarant
may have been afforded an opportunity to deny or explain. If the party
against whom a hearsay statement has been admitted calls the
declarant as a witness, the party is entitled to examine the declarant on
the statement as if under cross-examination
7. Rule 807 Residual Exception
A statement not specifically covered by Rule 803 or 804 but having
equivalent circumstantial guarantees of trustworthiness, is not
excluded by the hearsay rule, if the court determines that (A) the
statement is offered as evidence of a material fact; (B) the statement is
more probative on the point for which it is offered than any other
evidence which the proponent can procure through reasonable efforts;
and (C) the general purposes of these rules and the interests of justice
will best be served by admission of the statement into evidence.
However, a statement may not be admitted under this exception unless
the proponent of it makes known to the adverse party sufficiently in
advance of the trial or hearing to provide the adverse party with a fair
opportunity to prepare to meet it, the proponent's intention to offer the
statement and the particulars of it, including the name and address of
the declarant.
Notes on 807
a. 5 part test
1.) proponent must give notice
2.) statement must have guarantees of trustworthiness equivalent
to rule 803 and 804
3.) statement must be offered as evidence of a material fact
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4.) statement must be more probative on the point for which it is
offered than any other evidence the propend can procure
through reasonable efforts
5.) general purposes of rules and interests of justice must be
served
C. Applicable Objections
D. Applicable Case Law
2. Zippo Manufacturing v. Rogers Imports
a. Zippo wanted offer opinion surveys at trial
b. Statements in surveys are hearsay because they are dependent on
sincerity of declarant but are admissible as statements of presently
existing state of mind, attitude or belief
3. Wright v. Doe D. Tatham
a. In support of testator’s capacity, three letters were offered on the
grounds that they would not have been sent had the writers not
believed the testator was sane.
b. Held: Hearsay because out of court statements offered only to
prove truth of implied statements.
4. United States v. Alosa
a. Held: Ledgers of drug activity admissible to prove conspiracy
because truth of ledgers irrelevant to establishing existence of
conspiracy.
5. United States v. Day
a. Held: Proponent bears burden of proving evidence exception. No
evidence here that prior inconsistent statement made to
government agents was subject to penalty of perjury, agents had
no authority to administer such an oath.
6. United States v. Flecha
a. Held: Statements as part of conspiracy are not admissible if they
were made after the conspiracy ended.
b. Held: Silence is only admissible if there is no other explanation for
silence besides acquiescence.
7. Mahlandt v. Wild Candid Survival & Research Center
a. Held: Note to supervisor that wolf bit child was admissible because
was made in scope of employment and concerned matter within
scope of employment.
8. Bourjaily v. United States
a. Held: When admitting statements of co-conspirators, judge
considers subject to rule 104 all evidence—including inadmissible
evidence—preponderance of evidence.
9. Miller v. Keating
a. Held: Statement by unknown declarant properly excluded because
no guarantees of trustworthiness sufficient to allow exception.
10.
United States v. Iron Shell
a. Held: Statements 75 minutes after Rape qualified as excited
utterances.
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11.
a.
12.
a.
13.
a.
b.
c.
14.
a.
15.
a.
16.
a.
17.
a.
18.
a.
19.
a.
20.
a.
Mutual Life Insurance v. Hillmon
Held: Letter stating intent to go Colorado with Hillmon admissible to
show present intent of writer.
Shepard v. United States
Held: Statements by poisoned wife to nurse were excluded
because there was no evidence that the wife actually believed her
death was imminent when she made the statements.
United States v. Pheaster (9th Circuit).
Held: Pursuant to Hillmon doctrine, both the declarant’s and the
other parties intent may be inferred.
Pheaster common law
Shepard cured this problem—803 may not be used this way.
Palmer v. Hoffman
Held: Railroad’s record of accident not admissible because
primarily use of such records is litigation, not business purpose.
Beech Aircraft v. Rainey
Held: Conclusions and opinions contained in Jag report admissible
as part of “factual findings” admissible as long as trustworthy.
Dallas County v. Commercial Union Assurance Co.
Held: Old newspaper account of fire admissible because trustworthy and reliable source and necessary and material to litigation.
United States v. Salerno
Held: Grand jury testimony not admissible by defendants because
not a similar motive to develop testimony.
United States v. MacDonald
Statements of witness not admissible as against interest because
not trustworthy.
Horne v. Owens-Corning Fiberglas Corp.
Held: Deposition in prior asbestos case properly excluded because
differences in employee type means different motives to develop
testimony. Here, deposition admissible because no actual
difference between plaintiffs—properly deemed to be successor in
interest.
Williamson v. United States
Held: Narrowly interpreted “statements against interest” as only
self-inculpatory statements not surrounding statements because
the self-inclupatory parts do not necessarily make other parts more
trust worthy.
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