EVIDENCE OUTLINE – AIKEN FALL 2004
Evidence =
1.
2.
3.
-
What I bring to court as proof
The rules that govern the admissibility of the evidence
What has been admitted into evidence
Direct = what is heard, smelled, saw that does not require an inference to
tie it to the case
Circumstantial = requires an inference
5 reasons for rules of evidence:
Mistrust of juries – jury can’t handle hearing it, jury will use the evidence
wrong (eg. hearsay)
Substantive policy relating to the matter being litigated (eg. presumptions)
Substantive policy unrelated to the matter being litigated (eg. privilege)
Ensure accurate fact finding – litigants in the court must be careful (eg.
authentication)
Pragmatic, Efficiency – make sure the trial flows, judicial efficiency (eg.
judge controls order of evidence, can’t ask your own witness leading
questions unless the witness is incompetent)
Rule 103 = Rulings on Evidence = how objections will be viewed
on appeal
Role of objections:
Judge must decide whether objection is sustainable or should be denied
Forestall error in the immediate trial
Preserve error for appeal
o Failure to object waives error
Strategic advantage – slow the other side down and break the opponent’s
flow
Plain error = attorney need not make an objection to preserve appeal; has to affect a
substantial right (usually the outcome)
Proffer = offer of proof; made after losing an objection
Lets the trial court hear what would have been
Has to include the nature and content of the evidence
Through testimony or the lawyer’s description of the testimony or the
object itself
Done outside of the hearing of the jury
Rule 104 = Preliminary Questions
a) General admissibility
Court not bound by rules of evidence in determining a piece of evidence’s
admissibility
Preponderance standard
b) Relevancy conditioned on fact:
-
Admitted upon, or subject to, introduction of evidence sufficient to
support a finding of the fulfillment of the condition
o Sufficiency test = very low standard
Can consider only admissible evidence
c) Hearings on evidence conducted outside hearing of jury
Foundations – set of elements that must be shown to make the evidence admissible
In order to admit what looks like hearsay under an exemption or
exception, one has to prove the necessary conditions are present.
These are usually fact questions, normally for the jury, but because they
determine whether the evidence can be heard or seen by the jury, the judge
is charged with that fact determination. FRE 104  standard of proof =
preponderance of the evidence
o 104(a) = Questions of admissibility generally. Preliminary questions
of admissibility generally concerning… the admissibility of evidence
shall be determined by the court, subject to the provisions of
subsection (b). In making its determination it is not bound by the rules
of evidence except those with respect to privilege.
o 104(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.
RELEVANCE
Rule 401. Relevance
Relevance: “any tendency to make the existence of any fact”
o To what fact is this potential evidence addressed?
Materiality: “fact that is of consequence to the determination of the
action”
o What is the issue in the case? Is that a fact of consequence to the
issue(s) in this case? Is there a relationship between the fact and the
issues and facts of the case?
o 3 kinds of facts of consequence:
 Direct evidence of claims and defenses
 Circumstantial evidence of claims and defenses
 Evidence that bears circumstantially upon the evaluation of the
probative value given to the other evidence in the case, i.e.
credibility, demeanor, impeachment, background information
o Facts of consequence change as each witness testifies
o Largely dependent on what the substantive law is
Probative value: “more probable or less probable than it would be
without the evidence”
o Does this potential evidence make the fact more or less probative than
without the evidence? = minimum threshold
The evidence does not necessarily have to prove the fact it is intended to prove.
-
Remoteness = Evidence is remote when it is so removed in time or circumstance from
the proposition to be proven that it is deemed unusable for the case.
Immaterial if:
It is evidence which helps prove a proposition but not one at issue in the
case
It is evidence that is of so little help in proving a proposition at issue as to
be not worth hearing. Evidence may be seemingly relevant but suffer in
value so to be excludable.
Conditional Relevance = relevance of an item depends on the existence of some
other fact or condition, in the absence of which the evidence would be irrelevant
Do you really know enough facts to make the evidence relevant? Are
there unstated facts that you are taking for granted but must be proven for
the evidence to be relevant?
Judge decides whether piece of evidence in question will be admitted
before antecedent fact or condition is proved. Admit it subject to proof.
Steel blade example  in order for the blade to be relevant, it must be
proven that the blade came from the tractor that the P contends injured
him
Battered women’s syndrome example  defense counsel’s argument
should be that there is no evidence that the plaintiff has battered women’s
syndrome
o Must be a history of battery – the history is a condition precedent.
o Limiting instruction  expert testimony should only be considered if
you should find that this women is a victim of domestic violence
 Not good for defense attorney because the seed of battered
women’s syndrome is planted in the jury’s mind, likewise, the
jury has to consider all the other examples of domestic
violence.
o No limiting instructions, just the judge will not allow the witness
testimony until a sufficient amount of proof of domestic violence is
put in front of the judge not jury.
RULE 403 = Confusion and prejudice caused by relevant evidence
-
Probative value is substantially outweighed by:
o Danger of unfair prejudice
 The fact that it may hurt the other side’s case doesn’t make it
unfair – the jury must use the evidence unfairly:
 Exaggerating the probative value = Old Chief
 Causing the jury to disregard certain issues
 Using the evidence for an improper purpose – causing the jury
not to like the party because of some bad act they did earlier
o Danger of confusion of the issues
o Danger of misleading the jury
o Considerations of undue delay
o Waste of time
-
-
-
-
-
o Needless presentation of cumulative evidence
o Balancing Test = If an alternative is found to have substantially the
same or greater probative value and a lower danger of prejudice, sound
judicial discretion would discount the value of the item first offered
and exclude it if its discounted probative value were substantially
outweighed by unfairly prejudicial risk.
Person opposing the evidence must make the objection – not a threshold
that must be met by the person offering the evidence.
Probative value = Cultural; from whose perspective is the evidence
probative?
o Josie Smith  woman killed and all the stocking tops cut off of her
stockings; Winston accused of murder b/c cops find stocking tops in
his drawer although none of them match Josie’s stockings
 Probative value low if Winston is black b/c black men use
stocking tops to fix their hair
Probability evidence
o Product rule  may be given more weight than other evidence
because of the presentation by a mathematician
 Do we know the person is from Walhalla?
 Do we know the witness’ descriptions are accurate?
 Statistics can be misleading, but is not always
Graphic depictions
o It may inflame the jury.
o Pictures don’t prove that the defendant did anything – jury could be
preoccupied with the gruesomeness of these pictures.
o Jury likely to rule based on emotion not fact.
Reenactments
o Scientific Evidence  attempts to recreate the events that occurred
 Is the scientific experimental evidence sufficiently similar to
the event in question so to avoid misleading the jury?
 Can the jury judge the significance of the differences?
 Can the difference be cured by a clear jury instruction?
 Critically viewed by most courts
o Day in the life  accident victim wants to put a video on of the way
her life was before the accident
 Emotional response must substantially outweigh the probative
value of the evidence.
 Jury members must be more likely to judge based on their
emotions than on the fact.
 Usually are admissible – not like scientific reenactments that
are more critically viewed
Curing Prejudice
o Limiting Instructions = tell the jury how they can and cannot use the
evidence
o Stipulation = parties agree that this fact has been proven
o Admitting Liability and Reducing or Eliminating Relevance

-
Defendant was a drunk driver who wants to reduce the
damages he is liable for. Admit liability, but being drunk is not
relevant to damages. Therefore, the plaintiff will not be able to
present evidence of his drunkenness.
Old Chief Language that is actually cited when the case is cited
o “A criminal may not stipulate or admit his way out of the full
evidentiary force of the case as the Government chooses to present it.”
o “The prosecution with its burden of persuasion needs evidentiary
depth to tell a continuous story.”
o “A syllogism is not a story, and a naked proposition in a courtroom
may be no match for the robust evidence that would be used to prove
it.”
Similar Happenings
Evaluating Relevance of Similar Happenings
Determine relevance under Rule 401
Evaluate under Rule 403
Both evaluations require a substantial similarity of operative
circumstances
o Examples:
 One party is litigious – sometimes evidence of prior lawsuits is
ok
 Prior insurance claims on arson
 Fair Market Value for Houses based on sales of similar houses
 Product liability – relevant to notice, dangerousness and
causation to show previous examples of damages caused by a
similar product
Prior Dealings
Problem 4-10:Spoiled Shrimp  Prior contracts that did not deal with
shrimp to prove requirements of contract that does deal with shrimp
o Same parties – not always necessary in contracts
o Not same product, but both shellfish
o Same pattern or practice? – probably was how they are going to ship
it
o Look for similar operative circumstances
 Same parties?
 Same product?
 Same pattern or practice?
Lack of Similar Occurrences
Problem 4-11 Double Decker – no one has been injured in 5,000 previous
rides on the Double Decker  assumption = no complaint means no
accident
o Look to see if there have been no other accidents or just no other
complaints
o Look to see if probative value is inflated: Lack of prior accidents
does not resolve the issue of whether the ride was safe
o Definitely relevant – Is the jury likely to inflate probative value?
Usually, these cases fall prey to a 403 objection
Authentication
Rule 901 – Requirement of Authentication or Identification
-
-
Authentication = A showing that a thing is what it purports to be.
o The party offering the exhibit need only offer evidence that is
sufficient to justify a finding that the thing is what it purports to be.
 very low threshold
o The judge only determines whether a reasonable jury could find the
thing to be authentic
Examples:
o Testimony of witness with knowledge
o Nonexpert opinion on handwriting – business associate for example
o Comparison by trier or expert witness with specimens that have been
authenticated
o Distinctive characteristics in conjunction with circumstances
o Voice identification
o Telephone conversation - recognition of the voice and how witness
knew the voice; testified you dialed a number identified with this
individual and they picked up the phone
o Public Records or Reports
o Ancient documents or data compilation
o Description of process or system used to produce a result and showing
that the process or system produces an accurate result
o Computer Records – usually need an expert; must show reliability
o E-Mail Foundation
 This foundation may require the testimony of a certification
authority unless there is a stipulation that the person in question
is the owner of the public key
 The CA verifies that a person owns a particular public key (an
identifying certificate)
 The recipient received the message in question
 Recipient used the senders public key to decipher the message
 The key unscrambled the message
 The message identified the key owner as the sender
o Caller ID Foundation
 Can usually get judicial notice that Caller ID is reliable
 Prior to the telephone call in question, the user acquired and
installed caller ID
 This caller ID unit is reliable
 On this occasion the caller ID displayed a particular number
 The telephone number belongs to a particular person or
business
o Photographs

Foundation: Competent witness says that this is a fair an
accurate representation of the thing portrayed
 No need for the photographer (assumption: the process is
reliable and un-dynamic.)
 Can be admitted for a limited purpose if different, i.e. shows
the scene but does not reflect the lighting at the time of the
event.
 May be disallowed if distortions in the photograph make it
misleading
o Digital Evidence = easily modified; may need an expert to
authenticate
Rule 902 – Self-Authenticating
-
To avoid making it necessary to call a bunch of witnesses to authenticate
Just hand it to the judge and cite the rule
Examples:
o Domestic Public Documents – Under seal and not under seal
o Foreign Public Documents
o Certified Copies and Public Records
o Newspapers and Periodicals
o Trade inscriptions and the like – a diet coke bottle
 If critical information is above and beyond trademark, then
more info is necessary to make it relevant
o See rule
Best Evidence Rule – Not evaluative
Better called “The Original Document Rule”
When does the Rule apply?
If one can get from testimony to conclusion sought without the writing,
then the Best Evidence Rule does not apply. – if the writing is merely
corroborative then the rule does not apply
If the writing is central to the litigation, or there is importance in bringing
the precise words of the writing before the trier of fact to avoid the danger
of mistransmission, then the original writing is required.
o What are we trying to prove? If we take the writing out of the mix can
we still prove it, even if just with testimony? Is the writing the central
issue?
Videotapes, audio recordings, photographs, stone etchings = writings
Rule 1002 = requires the original
Rule 1003 = a duplicate can be used the same as an original unless there is a genuine
question as to authenticity or it would be unfair to allow the duplicate
Unfair = in discovery, you ask for something and they say it’s lost. Then
at trial they present a copy – that’s not fair.
Rule 1001 = definitions
Rule 1004 = when the original document rule will be waived – No original necessary
if:
-
-
Original lost or destroyed
Original not obtainable
Original in possession of opponent
Collateral
Problem 19-6 and 7: Sweet Suit  breach of contract involving the sale of
chocolate bars, sole issue was whether the number of bars stated in the
contract was 3,800 or 38,000
o Duplicate is fine
19-7: original was destroyed in rainstorm – duplicate is fine
19-10: All Business  Duplicate of a photograph taken of a famous
person on the boat
o Not a best evidence problem because other evidence could be used
The Competency of Witnesses
Rule 601 = Presumption of competency
-
-
-
-
“Dead Man’s Statutes” = rule of competency disqualifying an interested
party from testifying about transactions or communications of a dead
opponent
o Jury can’t make evaluation of who is telling the truth
o 7-3: Dead Again and Again – not barred if just testifying about the
terms of the contract b/c Statute only deals with oral transactions
o Best evidence question
o Per se inadmissible?
o Some states have them, some do not
Competency = Understand what it means to be truthful
o Distinguish competency from credibility
 The Habitual Drug Addict can testify under FRE 601
 Goes to credibility not competency
 Addict doesn’t know the difference between right and
wrong  problem because the witness must know the
difference between truthfulness and untruthfulness
 Purse snatching 20 yards away witnessed by deaf and blind 102
year old man – witness can testify
 Credibility not competency issue
Child witness = does this person have an appreciation for the difference
between telling the truth and lying and that truth should be told on the
witness stand?
Hypnosis: Problem 7-4  Hypnotized person who didn’t remember the
robbery until she had been hypnotized by a certified police
neuropsychologist, then she remembered the robbery and identified the
defendant as the robber
o Seems like a question of credibility not competency
Rule
Rule
Rule
o In CA  Hypnotic refreshed testimony about events that she has been
refreshed on is per se inadmissible
o Somewhere between 601 and 602 (personal knowledge)
602 = Personal Knowledge
7-5: Robbin the Hood  Robbin’s wife testified that he was despondent
before the day that he is accused of robbing the bank
o Description of his despondency is allowed because that is personal
knowledge based on her own observations
605 = Competency of Judges as Witnesses
Total Bar for Judges in the cases in which they sit and no objection is
needed if a judge testifies – this error is automatically preserved for appeal
without an objection
What about other court personnel? Problem 7-6
o Bailiff  He shouldn’t be able to testify for the same reason that the
judge should not be able to testify
o Classic 403 – prejudice argument captured by the spirit of 605
o Court Reporter  same argument as Bailiff
o Best friend  goes to credibility not competency
o Attorneys? Rules of Professional Conduct
606 = Competency of Jurors as Witnesses
What are the limits?  trying to limit to secretarial errors
Juror brings in a knife – could be prejudicial
Juror can only testify as to what happened not as to how it influenced
juror’s vote
Juror should be able to testify about this
Juror walks with a limp to prove that a witness is lying – could be
extraneous prejudicial information
o Juror may be able to testify about this – when the experiment purports
to give an answer, then there’s a problem
o Juror makes statement that “these people are violent” – strictly opinion
and juror may not testify about this
The Examination of Witnesses
Direct and Cross Examination
Rule 611(c): The Rules for Direct
-
-
-
No Leading Questions on direct except as may be necessary to develop
the witness’ testimony – development questions like “you live at 1223
Washington in St. Louis, right?” are ok.
o Allowable to create a foundation
Direct questions should not be compound or call for a narrative
If a question has been asked and answered, it should not be asked again
on direct – temptation to do this because the more often someone hears
something the more likely they are to believe it is true.
Common Objections:
Rule 611
-
-
o Leading
 Does it call for a “yes” or ”no” answer?
 Does it begin with “Did “or “Does”?
 Does it assume facts not in evidence?
o Asked and answered
o Compound questions
o Assuming facts not in evidence
o Argumentative
o Calls for speculation – asks someone to either read someone’s mind
or make a judgment about facts that is an opinion that the jury should
make
o Non-responsive – witness does not answer your question
o Narrative (or Calls for a Narrative)
(b): Scope of Cross
“Funnel Questioning:” Scope of cross is generally tied to the scope of
direct examination. All inferences and components of the subject matter
covered on direct examination, plus the credibility of the witness are fair
game on cross.
Wholly new substantive matters are not the proper subject of inquiry.
Impeachment
Intrinsic = occurs during the examination, from the witness’ mouth
Extrinsic = outside of the mouth of the witness
The need for extrinsic evidence generally arises when the impeached
person denies the impeaching question and the impeacher would like to
prove the impeachment.
The Collateral Matters Rule = If extrinsic impeachment evidence is
offered, it must be either in the form of reputation or opinion or go to
some additional issue beyond the witness’ general propensity for
truthfulness, such as bias, a fact in issue, testimonial capacities, or
conviction of a crime. If not, it is inadmissible as a collateral matter.
Good faith = must have good faith reason to impeach
Rule 607 = The credibility of a witness may be attacked by any party, including
the party calling the witness.
Draw the Sting = impeach your own witness before the other side does it
to lesson the impact on your case
Impeachment Techniques:
a. Contradiction = the witness testifies to something today that is inaccurate from
something she said earlier today. Therefore she is not a good truth-teller generally and
should not be believed.
b. Bias = any form of corruption, influence, prejudice, interest, etc. that can cause a
witness to favor or disfavor a party or its position.
Showing that the witness is disposed against the person against whom
the witness is testifying;
-
c.
Showing that the witness is disposed toward the party for whom she is
testifying.
Rule 609 = Felony conviction – not just accused or charged with a felony
Permits:
o Prior felonies to be used to impeach witnesses subject to 403 =
assumes admissibility
o Prior felonies can be used to impeach the accused if probative value
outweighs prejudice – gives force to presumption of innocence =
assumes inadmissibility
 609 = Does prejudice outweigh the probative value?  Only
applies when the witness is not the accused and when the crime
is a felony or punishable by more than 1 year in jail
 NOT a 403 because 403 requires “substantial
outweighing” and because the showing about prejudice
in a 609 must occur before the use so the proponent
has the burden in a 609 whereas the opponent has
the burden in a 403
 How old is the crime?  If something is older than 10 years,
we presume it is not an impeachable offense.
 Determined by the date of release from incarceration
 What is the punishment for the crime?  Crimes punishable
by less than 1 year in jail can’t be used
 Doesn’t matter how much time the person actually
served, it only matters for how long the crime is
punishable
 Probative of truthfulness or honesty? – most crimes are
 Crime the same or substantially different from the one
charged?
 Effect of defendant’s willingness to testify?
 Luce v. United States: The Supreme Court held that if a
defendant loses a motion in limine (prior to the trial) to
exclude a prior conviction and then does not testify, the
defendant cannot complain on appeal. It is impossible
to assess prejudice until the scope of the testimony is
seen and to find otherwise would allow defendants to
plant reversible error into the record.
o “Crimen falsi” = Crimes involving dishonesty or false statement
can be used to impeach anyone, regardless of punishment.
 Difference between witness and criminal “accused”  ok
against witness, but not against criminal accused
 “By that phrase, the Committee means crimes such as perjury
or subordination of perjury, false statement, criminal fraud,
embezzlement or false pretenses…”
 Where it’s not completely obvious that the crime was one of
dishonesty, there used to be a mini-trial outside the hearing
of the jury to determine whether the crime is one of dishonesty
or false statement
 Proposed change in rule = Amendment would permit
automatic impeachment when an element of the crime
required proof of deceit  No more mini-trial
 It would also allow automatic impeachment if an
underlying act of deceit could be “readily determined”
from such information as the charging instrument.
 Amendment deletes the indefinite term “involved”
Does not permit:
o Crimes over ten years old from date of conviction or release from
confinement (unless court allows for good cause and there is notice)
o Crimes that are subject to annulment, pardon or certificate of
rehabilitation
o Juvenile convictions of the accused
d. Rule 608 = Prior bad acts - can be used to get around 609, but juries give
more weight to convictions than mere bad acts themselves
Permits (with some limitations):
o Reputation or opinion evidence about character for truthfulness –
on direct examination someone calls a witness to testify that another
witness or party is truthful or untruthful in their opinion
o Specific acts that are probative of truthfulness when inquired about
on cross-examination – may NOT be proved by extrinsic evidence
 Can only talk about convictions – not arrests or expulsions
(can’t use consequences of act, only the act itself)
 Did you lie on your income tax return last year? = ok;
Were you arrested for lying on your income taxes last
year? = improper impeachment
 Example: Witness lied on his mortgage application  the
mortgage application (extrinsic evidence) may NOT be used to
impeach witness because it goes only to the witness’s
propensity to tell the truth
Does not permit:
o Acts proven by extrinsic reputation or opinion testimony not
relevant to truthfulness
o Character evidence as to being a truthful person before credibility has
been attacked = no pre-emptive bolstering of witnesses  relevance
problem
o Arrest, charge, indictment, expulsion, suspension – this is about acts of
other people in response to witness, not the witness’s act
o Specific act evidence when only probative of truthfulness
Must have good faith belief that event took place
e. Testimonial capacities
-
Ability to be accurate/to perceive
Incentive to lie in this case
Memory
-
Knowledge
Perception
Sincerity
Extrinsic or intrinsic evidence = ok
Questions about schizophrenia = ok; questions about depression = maybe
not
f. Rule 613 = Prior inconsistent 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.
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
require. (Admissions not covered)
o If you know for sure that the witness said something different to a
policeman, you can either let the witness testify fully and later call the
cop to refute the witness, but the witness gets a chance to take the
stand and explain himself or ask the witness about it while he is
testifying
Example:
o You said “I don’t know” before, now you say the car was traveling at
40 mph  Inconsistent
o You said “The car was traveling at 40 mph” before, now you say you
don’t remember  NOT inconsistent
o By Stander testifying on direct examination by plaintiff “The
plaintiff’s Mazda was traveling about 25 m.p.h. when it was struck by
the defendant’s Buick.”
 “Didn’t you tell the investigating officer that the plaintiff’s
Mazda wasn’t going much faster than 20 m.p.h. just before the
accident?” – not inconsistent and not admissible
 “Didn’t you tell the investigating officer that you couldn’t
remember how fast the plaintiff’s Mazda was going just before
the accident?” – inconsistent
 “Isn’t it true that Ahn Looker told the investigating officer that
the plaintiff’s Mazda was going at least 35 m.p.h. just before
the accident?” – not the same witness, not inconsistent
statement
 “Didn’t you tell the investigating officer that you’re not too
good at judging the speed of cars?” – inconsistent
 “Isn’t it true that you lied about a year ago about stolen
computers?” – not inconsistent
 “Didn’t you tell the investigating officer that the defendant’s
Buick entered the intersection with the green light just before
the accident?” – not inconsistent
-
o “How fast was the defendant’s car going just before the accident?”
 I don’t remember
 “Didn’t you tell the investigating officer that the defendant’s
car was traveling no more than 30 m.p.h.” – not inconsistent
just forgotten
Impeachment by omission  didn’t you say that at the deposition and
didn’t I ask you to include all of the details and now you didn’t say that
o Impeachment by omission requires two statements: one preceding
trial and one during it. The trial witness’ prior statement omits one or
more facts testified to at trial. The inference drawn from this
embellishment is that the factual additions at trial suggest
dishonesty.
Rule 612: Refreshing Recollection
-
-
-
Can use anything to refresh a witness’ recollection either while testifying
or before their testimony – fiction in the law is that the person is now
testifying from present memory refreshed not testifying from the
thing used to refresh the memory.
o Need not be independently admissible
o Witness can NOT read from the paper – must give it back to you first
If necessary, an adverse party is entitled to have the writing produced at
the hearing, to inspect, to cross-examine the witness thereon, and to
introduce into evidence those portions that relate to the testimony of the
witness.
No need to authenticate
Rule 610 = 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 their nature the witness’
credibility is impaired or enhanced.
Can’t ask someone if they are a good Christian or if they are a Muslim to
draw inferences about their credibility positively or negatively
Can call a Catholic priest as a character witness, but you can’t ask the
priest if he attends mass regularly
Rehabilitating the Witness = after the witness’s credibility has been attacked you
may offer extrinsic evidence of the witness’s truthfulness
Subject to 403, waste of time, objection
608(a): Evidence of truthful character is only admissible after the
character of the witness for truthfulness has been attacked…
801(D)(1)(B): Prior consistent statements are only admissible if offered to
rebut an express or implied charge of recent fabrication or improper
influence or motive...
Other Exclusions of Relevant Evidence
Rule 407: Subsequent Remedial Measures = subsequent to the
injury
-
-
-
Cannot be offered to prove:
o Negligence
o Culpable conduct
o Defect in a product
o Design defect
o Need for warning or instruction
Can be offered to prove:
o Ownership
o Control
o Feasibility of precautionary measures, if controverted = huge hole 
as a practical matter all you have to do is ask “could the thing have
been safer?” – if answer is yes, sit down – if the answer is no,
feasibility is controverted
 Objection to this is that the other side is trying to subvert rule
407
 Measure was prohibitively expensive – Example = shields on
bulldozers
o Impeachment
If remedial measure was taken by a third party, then it may be admissible
but not to prove liability – only to prove ownership
“First step” of a remedial measure is protected – proof that a study was
conducted is inadmissible even if the actual measure was not taken
Must be subsequent to be protected = accident occurs on May 31; letter
concerning faulty brakes is sent on May 30 and arrives June 3; letter may
be used to prove design defect and liability b/c it was not sent subsequent
to the injury
Rule 408: Compromise and Offers to Compromise – rules want to
encourage compromise
-
-
-
Furnishing, offering or accepting or promising to accept valuable
consideration
To settle a claim which was disputed as to validity or amount
o Only when there is a dispute, is the statement protected. If client
admits wrongdoing and promises to pay whatever the amount ends up
being, then there is no dispute as to validity or amount and the
statements are NOT protected.
Is not admissible
This includes statements or conduct (nodding head) made in compromise
negotiations
o At common law, anything said outside of the offer was not protected,
but now it is.
Admissible Compromise Evidence
-
o Evidence otherwise discoverable
o Evidence offered for another purpose such as:
 Proving bias or prejudice of a witness
 Negating a contention of undue delay
 Proving an effort to obstruct a criminal investigation or
prosecution
Use against a compromising party, not admissible;
Use by a compromising party, then admissible;
Use against a non-party to impeach, admissible subject to 403.
Scope of the Impeachment Exception to FRE 408
o The amendment would prohibit the use of statements made in
settlement negotiations when offered to impeach a witness through
prior inconsistent statement or through contradiction.
o The Committee concluded that this position is more consistent with the
underlying purpose of the Rule to promote uninhibited settlement
negotiations.
Rule 410: Inadmissibility of Pleas
-
-
-
Covers: withdrawn guilty pleas, plea of nolo contendere, statements made
during plea negotiations with an attorney for the prosecuting authority
which do not result in a plea of guilty or result in withdrawn plea.
Prosecuting authority must be present
Inadmissibility of Pleas, Plea Discussions and Related Statements
o Was the statement made during the course of plea discussions?
o Was a prosecuting attorney present?
o Is the statement offered against the defendant who participated in the
plea discussions?
Can be waived:
o Allowed in perjury prosecution
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.
“I’m really sorry; I was preoccupied, and our collision was all my fault. If
you don’t bring suit, I’ll pay for your medical expenses and your ripped
pants.”
o Admission of guilt is admissible, but offer to pay medical expenses
would not be admissible – Rule does not cover all statements and no
dispute necessary
o Ripped pants = NOT similar expenses occasioned by an injury
 Similar = similar to hospital or medical expenses = costs of
getting to the hospital or doctor; inconvenience of driving; in
home helper
 Admissible
-
6-11  “Oh Mac! I hope you’re ok. Why don’t you go to the Mellon
Hospital, and I’ll pay for the check-up?”
o Protected
o “Look, I don’t want any trouble. I admit I was not looking when I ran
into Mac; I was in a hurry. If I gave Mac $1000, would this whole
thing go away?”
 Settlement attempt – dispute as to amount  Rule 408 captures
all of the statements
o Sought plea bargain which he would admit guilt if he received a
suspended sentence, but the prosecutor rejected bargain.
 Inadmissible  Rule 410
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
Weak inferential link  people who carry insurance are more likely to act
negligently than people who do not
6-12  D forgot to buy auto insurance
o Are you a careful driver? – seems like character evidence
o What is your motive to be a careful driver? – Then lawyer wants to
proffer that he will claim he is a careful driver b/c he doesn’t have
insurance.
 Inadmissible
Admissible if offered for other purpose:
o Agency
o Ownership
o Control
o Bias
o Prejudice of a witness
Character Evidence
Continuum of Character Evidence:
-
-
General character: likely behavior across many different sorts of
situations  propensity bar
Character traits: behavior in a narrow set of circumstances  propensity
bar
“Non-character” specific acts under Rule 404(b): behavior in even more
narrow circumstances = he tends to kill women and put them in bathtubs
 not barred when used to prove certain things
Habit: covered by Rule 406 = very specific response to very specific
circumstances  admissible
Rule 404(a) = Propensity Bar = …Evidence of a person’s character or trait of
character is not admissible for the purpose of proving action in conformity therewith
on a particular occasion….
Is the sole relevance of this evidence based on the idea that “he did it
before, therefore he was more likely to have done it again?”
The many forms of character
o Specific acts to show untruthfulness on cross examination – to show
that witness doesn’t really know what they’re talking about
o Opinion/Reputation testimony regarding untruthfulness or truthfulness
or a pertinent trait offered by the accused re self or victim and rebuttal
by prosecution
o Specific acts and/or opinion reputation when an element of the offense
or defense.
Propensity = the circumstantial use of character evidence to prove
conduct on a particular occasion.
o Previous conduct – being referred to (usually specific)
o Offered to prove character for that kind of conduct
o Offered to prove conduct on this occasion
Exceptions to the Propensity Bar
o Mercy Rule = The Character Evidence Offered by a Criminal
Defendant (and then Rebutted by the Prosecution)
 Reputation or opinion on direct – 405(a)
 Specific acts only on cross – 405(a)
 If defendant says he was never disposed towards crime, can the
prosecutor offer evidence that defendant accepted stolen goods
20 years ago? Yes. 405(b). Character is an element of the
crime, not offered for propensity but for proving the element of
the crime
o Character of Alleged Victim
 5-10  Violent Victim – D charged with attempted homicide
on victim. D offered evidence that the victim was a violent
person. Can prosecution offer evidence that the victim:
 Had a reputation among students in her night-time GED
program as a peaceful woman? – admissible under
404(a)(1), could be a problem with fact that it wasn’t a
broad enough community
 Was, in opinion of her co-workers at McDonald’s, a
peaceful woman? – admissible, but still a problem with
the broadness of her community
o Still have to establish the relevance of the
community even for opinion
 Despite being punched in the face by a neighbor, had
never defended herself or retaliated with violence? –
inadmissible on rebuttal b/c it is meant to prove
propensity, can be brought on cross to repute reputation
evidence that she is violent
-
o The Character for Truthfulness of a Witness – See 607, 608 and
609 above
 What is the relevance of each piece of evidence offered?
 Distinguish act propensity for truthfulness and act propensity
for other character traits
 What specific acts indicate a lack of truthfulness?
 Rule 608(a): The credibility of a witness may be…supported
by evidence in the form of opinion and reputation… (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.
 Credibility evidence = a special type of character evidence
dealing with the propensity of a witness to be truthful.
o When Character is in Issue – an element of a claim, cause of action
or defense calls for proof of a person’s character trait or disposition;
eg. character is an element of the crime, claim, defense, etc.
 Prove with reputation, opinion, specific acts – 405(b)
 Examples of Character in issue:
 Defamation= a material misrepresentation of fact
published to others causing damage to the plaintiff.
 Entrapment
 Negligent entrustment
 Negligent hiring
 Seduction
 5-11  D charged with possession with intent to distribute
cocaine. D admits to possession but claims to be entrapped.
State uses subjective test of entrapment, which asks 1) whether
the police induced or created the crime and 2) whether the
defendant was predisposed to committing the crime charged
 Testimony of D’s father stating that his son would
never violate any criminal laws whatsoever. To the
father’s knowledge, his son had only once violated the
law when he stole a ball at the local five and dime. 
admissible b/c propensity = element of entrapment
 Opinion that D is an honest person.  admissible if
offered to prove law abiding but not if offered to prove
truthfulness b/c you cannot bolster (could offer to prove
truthfulness if truthfulness was questioned)
 D was arrested for the possession of marijuana fifteen
years prior to trial.  admissible
Act vs. Mental Propensity
o Rule only precludes character evidence offered to prove that the
person acted consistently with the character trait on this particular
occasion.
o If offered to show an internal state, then it does not offend the rule.
o The literal language of Rule 404 bars evidence of character or a trait of
character to prove “action” in conformity therewith on a particular
occasion. Action implies “acts” not mental states.
o Even though there is debate, most courts and commentators believe
that Rule 404 does not prevent evidence offered to prove that a party
experienced a mental state in conformity therewith on a particular
occasion.
o 5-3  The Negligent Driver – Jane lent car to teenager, Murray, who
had a well-known reputation for driving recklessly. Murray’s parents
sue:
 Evidence of Murray’s reputation as a reckless driving –
admissible b/c it shows that Murray had a reputation for
recklessness which attempts to prove that Jane knew she was
lending her car to a reckless driver.
 Evidence of Murray’s specific acts of bad driving – still
admissible
 What if no evidence is offered that Jane was aware of Murray’s
reputation of his prior instances of negligent driving?  acts
could go to prove she “should have known,” but reputation is
definitely admissible b/c it certainly goes to prove she “should
have known”
 Murray survives and is charged with reckless vehicular
manslaughter.
 Reputation as a reckless driver – not admissible b/c it is
propensity evidence
 Reputation as a speeder – not admissible b/c it is
propensity
 Specific instances of tailgating – not admissible b/c it is
propensity and b/c it is not relevant to whether he was
speeding
 Specific instances of speeding – not admissible b/c it is
propensity even though the relevance issue is fixed
 Murray was not aware of speeding b/c speedometer was
broken. Now can the above evidence be brought?
 Reputation as a reckless driver – still inadmissible
 Specific acts of prior speeding – relevant b/c a person
with 6 tickets for speeding is more likely to be aware of
his speeding
o Not relevant to character, relevant to awareness
 admissible on rebuttal b/c the defendant has
made awareness of speeding an issue
Rule 405 = Methods of Proving Character - when it is an issue in
the case, one can use any method to prove, but when it is
admissible under 404, it has to be in the form of opinion or
reputation on direct and specific instances are only allowed on
cross
-
-
Rule 405(a) = when character is admissible, can be shown by reputation or
opinion testimony on direct. On cross, inquiry into specific instances of
conduct is allowed
Rule 405(b) = when character is an essential element of the charge, claim
or defense, can use specific instances of conduct
Rules 412, 413, 414 and 415: Sexual Character Evidence
Rule 412: Presumptively Inadmissible Evidence
-
-
-
-
-
Rule 412(a) creates a general rule against admission of evidence offered to
prove:
o The alleged victim engaged in other sexual behavior
o The alleged victim’s sexual predisposition
Pertinent has to have more probative value than relevant  being an
exhibitionist is not pertinent to consent
o Time and culture specific
When are you dealing with sexual predisposition and when are you
dealing with acts relevant to the case at bar?
o Predisposition = what kind of person one is generally
o Is the evidence related to sexual predisposition? Sexual connotation
for the fact-finder?
o Low cut dress = sexual connotation based on how she dresses
o Drunk = inebriation may be relevant to the specific D
o Dancing with D= excluded from rule 412 b/c that is behavior
directed toward the D which is excluded in a criminal case =
admissible
 Dancing alone or dancing with others = barred by rule 412
If Sarah calls a witness, can the witness be cross-examined about her
provocative dress on the night of the alleged rape?
o No 412 objection b/c witness is not an alleged victim, but there is a
strong 403 relevance argument. What if she was raped by him in the
past?  412 applies now b/c “any victim” means any victim at any
time not just the alleged victim.
Applies in any civil or criminal proceeding involving alleged sexual
misconduct.
It protects any alleged victim.  Just talking about sex is not enough, the
person must be a victim and that fact must be relevant.
Balancing test  probative value must SUBSTANTIALLY outweigh the
danger to victim (the danger is presumed to be high.
o Leaving this to the discretion of judges is ironic b/c the rule was meant
to overcome cultural prejudices against women and judges are just as
susceptible to the prejudices as anyone else.
In Civil Case – 412(b)(2)  Test = does probative value of the evidence
substantially outweigh the danger of harm to any victim and of unfair
prejudice to any party.
Problem 5-37 “Toby Wyatt”  issue = consent?
o Medical records including possible attempted suicide?  relevance =
someone who has committed suicide is more likely to engage in selfdestructive activity and is more likely to engage in such activity in the
future about consent?
 403
 412 does not come up – if the medical records show sexually
transmitted disease, then 412 does catch it; if medical records
include what happened during the encounter with Wyatt,
probative value increases and not barred by 412
o Academic records show she is a poor student  relevance = a poor
student is more likely to be stupid and stupid people are more likely to
make false claims
 No 412
o Psychiatric records show depression and paranoia  relevance =
someone who is paranoid may not be able to distinguish between
reality and fiction and may be more likely to wrongly accuse
 403
 No 412
o Notes of accuser’s conversation with her rape counselor  privileged;
relevant
 412 – statements about the particular events might be available
to defense to prove order of events or to impeach if she gets on
the stand to testify.
o Sex with 3 different men within three days asked of the medical
examiner  conditional relevance = if they are going to assert that
abrasions were caused by her previous sexual encounters, they must
prove that; 412(b)(1)(A) – if evidence is offered to prove that the
injuries were caused by other people, then it’s admissible under 412
 403  prejudice may outweigh probative value
 404  character evidence
o DNA evidence of semen that did not belong to the accused found on
her underwear to prove person other than accused is the source of the
semen  admissible 412(b)(1)(A) – presumes mistaken identity
defense, but Toby said he did have sex with her.
 Defense wants to offer the evidence to prove she has a bad
character which is not admissible
Rule 413  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 – can be used as act propensity evidence = no requirement of conviction and
allow 30 year old events reported by an alleged victim
Is attempted buttock pinching covered by Rule 413?  Yes
-
-
-
What is the relevance of this evidence?  person who tries to pinch
buttocks at fraternity parties is more likely to derive pleasure from other
sexual acts that causes pain
Any other objection?  403 – prejudice outweighs probative value b/c
pinching buttocks is not closely enough related to rape
What if the defendant asserts he reasonably believed that the victim of the
rape was consenting?  evidence becomes more relevant b/c perhaps he
can’t differentiate between consented to sexual acts and non-consensual
sexual acts
Problem 5-48: The Harassing Politician
Didn’t you expose yourself repeatedly to another employee?  Not
admissible b/c it is not probative of truthfulness
o 415 – admissible if offered to prove act propensity evidence
Isn’t it true that while governor you stole money and cooked the books to
get away with it?  admissible b/c it is probative of truthfulness
o 403 – unfairly prejudicial? – probably not
o He denies it, but can we call an accountant to testify that he did cook
the books?  No, 608(b) cannot be proved by extrinsic evidence
Consensual affair with another woman that you lied about to the press and
other people?  admissible b/c it is probative of truthfulness; violating
oath of monogamy = probative of truthfulness
o He denies it, can we call someone to prove that he did have the affair?
 No, not under 608(b)’s bar on extrinsic evidence as a waste of time
Beat his wife on 5 occasions?  inadmissible, beating wife is not
probative of truthfulness
Friend testifies that politician never lies after politician testifies
(acceptable to bolster as long as politician’s character for truthfulness has
been challenged):
o Can he be asked if politician stole money? – admissible
o Can he be asked about politician’s adultery? – admissible even if
politician denied adultery b/c it’s probative of how well friend knew
the politician
o Can he be asked about politician exposing himself repeatedly to
another worker? – No b/c exposing himself to a secretary is not
probative of truthfulness and is not probative of the witness’
knowledge of politician, but may be so close that it would be
admissible under 415
 403 – act propensity prejudice
Allegations of sexual harassment that the boss claims never happened:
Whether he was convicted nine years ago of a felony rape of his then
secretary? not stale but risk of prejudice b/c of similarity of conviction;
no obligation that probative value outweighs prejudicial effect b/c
defendant is not a criminally accused b/c it is a civil case.
-
-
-
-
-
Boss denies the conviction – Extrinsic evidence can be used to prove
conviction; can’t call the victim b/c of 403 objection; self-authenticating
public record = OK
o What details could you elicit? – fact that it was his secretary? – no b/c
too prejudicial and not very probative to his truthfulness which is why
the evidence was offered.
What if it happened 11 years ago and resulted in probation?  stale if it is
older than 10 years from the date of conviction or of confinement
(probation is NOT confinement)
o If it happened 11 years ago and resulted in him spending 5 years in
jail?  not stale
o Spent 3 years in jail, but was pardoned based upon a finding of his
innocence?  can’t use it if the pardon was based on a finding of
innocence, unless there is a subsequent conviction within a short
period of time (in which case, the court will use it)
o Rape conviction is on appeal?  conviction is still a conviction
regardless of appeal
Instead of civil harassment trial, the case is a criminal trial, can we admit
number 1?  exclusion is favored; now we use the balancing formula to
determine whether probative value outweighs prejudice
Weren’t you recently convicted of a bank robbery that occurred two years
ago?  admissible - it is probative of truthfulness, but does probative
value outweigh prejudice? Yes.
o What if he was wearing a disguise, produced a phony identification? –
attempts to make the crime a crimen falsi in which case there would be
no balancing
o What if the conviction involved a 15-year-old juvenile adjudication?
 2 problems = stale and juvenile; juvenile adjudication are typically
inadmissible particularly against a defendant, but will be allowed if the
court determines that in fairness the evidence must be admitted
404(b) - Other Crimes, Wrongs or Acts Evidence
-
-
-
Critical Questions When Assessing Admissibility of Other Crimes or Acts
Evidence
o Is the issue for which the evidence is offered in dispute?
o Does the chain of reasoning focus the trier of fact on some purpose
other than the defendant’s general criminal propensities?
Allows other crimes or acts evidence if the purpose for such evidence is to
show something other than propensity such as (list is not exhaustive)
motive, opportunity, intent, plan, knowledge, identity, or absence of
mistake or accident.
o Similar happenings usually in a tort context.
There must be notice of intent to offer such evidence.
What is admitted under 404(b)?
o When offered as mental propensity evidence
-
-
-
-
-
-
o Act propensity evidence: that is using prior specific acts to prove
action on this occasion will be admissible under 404(b) when such acts
are situationally specific: they have more predictive value than
general character evidence = signature crimes
Proof must be by evidence sufficient for a reasonable jury to conclude
that it occurred by the preponderance of the evidence – motion in
limine.
o Can be prior or after occurring events
FRE Thresholds for 404(b) Evidence
o 404(b) requirement that this be a proper purpose, i.e. is this relevant to
a matter at issue in this litigation? – Know the issue!
o 402 relevancy as enforced through 104(b)
o 403 evaluation of unfair prejudice
o 105 proper instruction (if requested) = you can only use this evidence
for this purpose, but not for this other purpose
Motive = the reason why a specific offender acted with a mental state
required by the definition of a charge, crime, claim, or defense.
o The existence of other crime provides a motive for the crime charged.
o Example: Homicide victim is a witness to the defendant’s former
crimes.
o Showing attacks on other victims to prove hate or drug addiction to
prove need for money resulting in theft.
o If the reason why a suspect acted is offered to prove that the action
was done with a particular mental state, not to prove that the suspect
committed the criminal act in the first place, the evidence addresses
mental propensity and can be offered.
o Example: It was reasonable for defendant to kill victim if defendant
knew about victim’s reputation as a dangerous man; relevant if
defendant claims self-defense  mental state of defendant is important
Opportunity = Access to or presence at the scene of the crime or in the
same sense possessing distinctive skills or abilities employed in the
commission of the crime charged.
o Using uncharged misconduct to show that the defendant had an
opportunity to commit the crime.
o Example: Evidence that the defendant had previously stolen a key to
the premises that were later burglarized admissible in trial for the
burglary
Identity: Modus Operandi = Means: the criminal’s method of operating
o Look for a signature trait: that is that the pattern and characteristics
of the crimes are so unusual and distinctive as to be like a signature.
Specific and Distinct!
o Profile of drug runner = inadmissible unless it can prove intent
Intent
o To show that an act was not done innocently
-
-
-
-
o Example: person claims he poisoned a person by mistake.
Prosecution may offer evidence that this is the third poisoning “by
mistake.” – state of mind that is the prerequisite of the crime.
o Evidence of other similar acts may help to establish that a defendant
did not act mistakenly or accidentally but rather with the intent or
knowledge required by the elements of the applicable tort or crime
“Objective Chances” = The repeated occurrence of certain unusual
events is so unlikely as to render improbable the claim that anyone of
those events happened mistakenly or accidentally.
o Brides of the Bath case  Husband says his wife died by accident in a
bathtub, evidence that his prior 3 wives all died in a bathtub is
admissible.
o 5-70 The Malicious Prisoner  malicious assault of a fellow prisoner,
evidence that the accused treated the victim cruelly on subsequent
occasions
 If he is asserting that he didn’t mean to, or that it was selfdefense, then admissible
 If he is asserting that he didn’t do it, inadmissible unless it can
prove a signature act
Res gestae = misconduct evidence for completing the story
o The use of other crimes that occurred simultaneously to give the jury a
full picture.
o Example: Murder committed during the course of a robbery.
o The Preppy Murder Problem 5-74, People v. Chambers
 Should the judge allow evidence that her earrings were taken?
– to prove depraved indifference to human life or to prove
motive (i.e. robbery of the earrings)
Common Scheme or Plan
o Where one crime is predicated on another. Example: bombing of a
police station to distract police while bank is being robbed.
o Two or more crimes have been plotted by same individual because
they exhibit similar or unusual pattern. (Modus Operandi)
o Test for Common Scheme or Plan = To prove the existence of a larger
plan, scheme, or conspiracy, of which the crime on trial is a part, each
crime should be an integral part of an overarching plan explicitly
conceived and executed by the defendant or his confederates. This
will be relevant as showing motive, and hence the doing of the
criminal act, the identity of the actor, or his intention.
o Examples: Stealing comic books and 8 people in front of defendant in
line to inherit a lot of money die mysteriously (must have independent
evidence linking defendant to the previous murders – helps if previous
murders all were committed in a particular way)
Preparation
o Often used to show identity or intent
o Example: To prove identity: The prosecution may show that the
defendant stole a car to use as a getaway car for the charged crime.
o Example: To prove intent: The defendant broke into a gun store and
stole guns prior to the killing for which she claims no premeditation.
Rule 406 = Habit & Routine Business Practice
-
-
-
Evidence of a habit of a person or the routine practice of an organization,
whether corroborated or not and regardless of the presence of
eyewitnesses, is relevant to prove that the conduct of the person or
organization on a particular occasion was in conformity with the habit or
routine practice.
Probability Theory = this is the kind of act the person does every time or
almost every time
o Most accepted theory – more likely to apply to business practice
Psychological Theory = unconsciously mechanical, almost reflexive
o More rigorous
Distinguishing Habit from Character Evidence
o Does the evidence indicate that the behavior occurs with frequency
and regularity?
AND
o Does the evidence offer specificity about the behavior occurrence?
o Examples:
 Defendant always in a rush  not specific enough (character
not habit)
 D regularly uses turn signals  inadmissible, she would have
to say always does it
 Still wouldn’t pass unconsciousness test because it
requires an amount of thought, but would pass
probability theory
 Defendant was drunk driving at 1 pm because he always has a
shot at noon  not relevant; would be relevant if he gets drunk
everyday at noon
 Defendant in a stolen shoes case claims she didn’t get a receipt;
evidence that the store always gives receipts is habit:
 It is the custom of the store to give receipts
 Witness testifying: Is the employee trained in the
policy? Does the employee always give receipts?
 What is it offered to prove?  That D would have
received a receipt if he had bought the products in this
instance
Hearsay Evidence
Rule 801 = Definition; Hearsay = 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… solely on the
theory that when a person asserts that a fact is true, that fact is
more likely to be true. (In other words, if there is another theory
of logical relevance then it is probably not hearsay.)
-
-
The Problem: The Declarant Cannot Be Cross-Examined
o Cross Examination allows us to:
 Check the declarant’s perception: Did she really see what she
thought she saw?
 Check the declarant’s memory: There may be confusion that is
belied by the forthrightness of the declarant’s statement.
 Check the declarant’s sincerity: She may be shown to be a liar
or strike the trier of fact as untrustworthy.
 Check the declarant’s mode of expression/ambiguity:
Unfamiliarity with the language may affect the weight.
Declarants are persons
o Not animals
 To prove Lerna’s identity as the murderer, the prosecution calls
Police Officer Tracy, who testifies that a police dog smelled a
bloody glove and pointed to Lerna. Objection as hearsay and
relevance.
 Dog = animal and animals are not declarants, therefore
the dog is not a declarant and it’s statement is not
hearsay
 The dog’s behavior is relevant if we can establish that
the dog is a good witness, done through crossexamination of the trainer
o Not mechanical devices
 Auto accident. Plaintiff offers photo of car just after accident.
Defendant argues the photo is hearsay b/c it constitutes an
assertion about the car’s condition.
 Photo is not a declarant
 Testimony that witness heard gunshot at 3 pm; she knew it b/c
newscaster had just said “Here’s the 3:00 news”
 Declarant = radio announcer made the statement not the
radio
 If she said she knew b/c she looked at her watch, no
declarant b/c watch is a mechanical device.
 People will claim that a thing is not hearsay b/c it was
computer generated  email is not a declarant, the
person who produced the email is a declarant
 Automated video camera catches criminal in the act; defendant
claims hearsay.
 Video camera is not a declarant.
o But where does the information come from?
o What is the proper foundation?
o Examples:

-
-
Declarant = phone book, but there is a person behind the phone
book; so declarant = person who entered data into phone book
 Statistics section of the newspaper  declarant = writer of that
section
 “My name is Yon Yonsin”  Declarant = mother or parent
who gave him the name
o Witness can be declarant if referring to something he said out of court
- “I’ll say now, what I’ve said all along, there was a big blob of
mustard on the floor.” = hearsay even though witness = declarant
Statement made out of court
o Ask: when was this statement made?
o Was the statement made during the present proceeding?
o Is this in-court testimony about what the witness has previously
observed?
 Not offering a previous statement.
 Three ideals of testimony are present: under oath, subject to
cross-examination, jury can observe demeanor.
o Examples:
 Statement made during deposition = out of court
 Statement made during previous trial = out of court
 Statement made to friend in court house during break in trial =
out of court
 Statement made during direct testimony = NOT out of court
Statement = (1) an oral or written assertion or (2) nonverbal conduct of a
person if it is intended by the person as an assertion; intended to assert a
fact that is of consequence to this litigation
o Wright v. Doe dem. Tatum  whether person who made the will was
competent at the time he made the will
 What was the disputed evidence in Wright? = group of normal
letters to the decedent treating him as if he were competent
(how should we handle x problem, etc.) offered by potential
inheritant (Steward) to prove that everyone who wrote him
believed he was competent and that he was competent
 Common Law  What is the argument that the letters are
hearsay? = letters are based on a factual assertion that he was
competent; can’t test people who wrote the letters
 Do the letters intend to assert that the testator is competent?
No.
 Wright Rule: Common Law  When you use a statement as
circumstantial evidence of the speaker’s belief, and infer from
that belief that the facts giving rise to the belief are true, the
statement is hearsay.
o Zenni: The Federal Rules Approach = statement intended to assert a
fact (conscious decision to communicate a fact)
 Facts = Cops are investigating a potential betting
establishment. They go to the establishment to investigate.
While there, people call and the cops answer. The people say
things like “put 2 on Tubsy in Belmonte.” Under common law,
it is hearsay, but under FRE they are non-assertive words
 Non-assertive words
 What is the courts argument as to why the callers’ statements
are not hearsay?  was it the intent of the declarant to assert
that this is a betting establishment? NO, they were just calling
to make a bet.
 Distinguish “statement” from “an intent to assert”?
o Non Assertive Conduct and Implied Assertions = Declarant Did X...
therefore the declarant believed Y and Y is a fact of consequence to
this litigation
 Non-assertive conduct = Conduct that is intended to be a
substitute for words is treated as hearsay. A witness reporting
that a person nodded is testifying to hearsay. The nodding is
merely a substitute for the words, A “yes.” When conduct is
not intended to be a substitute for words, then it can be
admitted as non-hearsay and can be used to prove the matter
implied by the conduct. The logic goes as follows: the
declarant did (an act), therefore the declarant believed
something that is of consequence to this litigation. The conduct
can then be used to prove the fact believed.
 When the person did what they did, did that person intend to
assert anything? Did the person intend to assert the fact that
we are trying to use the action to prove? If yes, then hearsay.
If no, then not hearsay.
 Implied assertions = “I can’t believe Dan ran the stop light”just another way to say Dan ran the stop light” and is hearsay
 Invisible Assertions = just b/c you don’t report the words that
are said doesn’t mean you avoid the hearsay rule
 No personal knowledge  everything the witness
knows about the subject the witness learned from
someone else.
 Did they intend to say what we implied them to have
said?
 Sometimes we do need to believe the declarant and
when we do, the statement is hearsay – Wright v.
Tatham
 Then we can use a statement to prove a fact not asserted
in the statement.
 Silence under conditions in which one would not be silent
 Examples
 Lucy is charged with shooting an killing Schroeder in
his apartment around 2 AM:


o Charlie wants to testify that he was talking to
Schroeder at around 2 AM. He heard a knock
on the door.
 Wants to say Schroeder said “Hi, Lucy,
come on in.” = hearsay
 Wants to say Schroeder said “Lucy
you’ve never looked better.” = hearsay
 Wants to say Schroeder said “I wonder
what Lucy is doing here?.” = hearsay b/c
implied assertion
 Wants to testify that he heard a knock
that is distinctive to Lucy. = Lucy is the
declarant, hearsay b/c of an assertion “I
am Lucy”
 Wants to testify that he got a copy of
Lucy’s diary that said “May 1, 2 AM.
Visited Schroeder’s apartment.” =
hearsay
As the players dash toward the basket, Basketball
player drops to the floor and moans while grabbing his
side.
o Can his moan be offered to prove he was hurt? –
not meant to assert
o Is the player attempting to communicate
anything or is he simply in pain?
o What if he is on the floor and the team
desperately needs to draw a foul? – may be
meant to communicate pain in order to draw
attention to himself
Prove whether it was cold in the building:
o Witness testifies he heard declarant say “I am
cold” = hearsay
o Witness testifies he heard declarant say “I feel
like a polar bear” = hearsay b/c intent was to
assert that it was cold
o Witness testifies he saw declarant put on a
sweater = non-assertive conduct and not hearsay
o Witness testifies he heard declarant say “I’m
going to get a sweater” = not hearsay b/c not
intended to assert “I am cold” according to the
FRE
 Allowed as long as you can erase the
sincerity issue – Was the person really
cold?

-
Josie = developmentally disabled child; her parents
want to sue for a slide that they think caused her
injuries
o Parents want to put on evidence that Josie broke
into tears when approaching the slide – not
assertive under FRE to prove that the slide was
the cause of her injuries and consequently not
hearsay
o School district wants to offer evidence that
mother of Jeff, another child with similar
disability, allowed her child to play on the slide
 Relevance issues – definitely a relevance
problem
 Propensity evidence
 Hearsay? – may not be intended to assert
that the slide is safe
 Mom fainted when she heard alibi that defendant was at
her house at the time of the murder; Fainting = Nonassertive conduct that is not hearsay; automatic reaction
not intended to assert that the alibi was false
Offered to prove the truth of the matter asserted
o Offering hearsay for other purpose aside from the truth of what was
asserted = ok:
 The Key: How is the statement relevant?  1st question
 Where the relevance or evidentiary value lies simply in
the fact that the statement was made, no issue is raised
as to the truth of the matter asserted and, therefore, the
statement is not hearsay.
 Who is the witness? Who is the declarant? Can we get
everything that we need about the evidence from the
witness not the declarant?
 The critical determination that makes what looks like
hearsay non-hearsay is identifying the fact of
consequence for which it is offered. In other words,
what does this statement help you prove? If the
answer is the truth of the statement then it is hearsay. If
offered for another purpose, then an argument can be
made that it is not hearsay. Sometimes, lawyers will
attempt end-runs around the hearsay rule and make up
arguments that sound like this hearsay is being used for
another purpose. Be wary..
 Words Not Offered for their Truth but as Circumstantial
Evidence of a Fact = This is a variation of non-assertive
conduct. Sometimes out-of-court verbal conduct can be treated
as non-hearsay if it is not offered to prove the matter asserted.
This typically arises in circumstances in which the statement


does not directly assert the declarant’s mental or emotional
condition but such condition can be inferred from the words.
 Rocky Mountain High  To prove body was Jones’,
widow wants to offer letter from Jones stating “In a
couple of days I’m going to head for Crooked Creek, in
the Rockies.”
o Offered to determine whether body was Jones’
o Letter asserts “I am going to go to Crooked
Creek” which is what we’re trying to prove
therefore hearsay.
 11-2  2nd letter written by Jones’ that says, “Crooked
Creek is like heaven on earth.”
o Offered to imply that Jones’ was there
o Letter asserts description of Crooked Creek not
offered for truth of matter asserted therefore it is
not hearsay
 Problem 11-3: Wife wants to testify that last week
Child told me “Last week, Child told me that Husband
is mean and often hits Child.”
o Cannot be offered to prove that Dad is mean and
hits Child
o Can only be used to show that Child is afraid of
his father or is willing to lie to avoid Dad’s
custody.
 403 objection – limiting instruction is
good solution
Notice = In many kinds of cases, particularly tort and contract
law, whether or not the party had notice is significant and
relevant to a determination of liability. Notice is an out-ofcourt statement, not offered to prove the truth of what the party
was alerted to (although often it does effect the substantive
assessment) but rather that a person was told. When an out-ofcourt statement is being offered to show the declarant’s then
existing awareness or knowledge of a fact, then it is not
hearsay.
 Trying to show that a person had notice that there was a
spill on aisle 4; employee told manager that “there is a
spill on aisle 4”
Effect on the Hearer = In many kinds of cases, particularly
criminal cases, what a person heard before or during the event
can effect how they respond. That information will have legal
significance for the assessment of guilt or liability. Essentially,
an out-of-court statement is being offered to show that when
declarant said it had an effect on the hearer that may explain
how that person responded.



Fact that statement was made is important; the truth of
what is asserted in not.
 Shown to prove self-defense.
Declarant's State of Mind

Relevant when:
o The declarant's belief is itself a material fact
o The declarant's belief is circumstantial evidence
of the declarant's behavior.
 In a criminal action for tax evasion, the defendant
testifies as follows: "I understand now that these were
illegal deductions. However my accountant told me at
the time that they were proper."
o What argument would you make? – not hearsay
b/c not offered for truth of whether the
deductions were illegal, but offered to prove tax
payer’s intent
o Doesn’t matter that testimony is self-serving.
Whether he is telling the truth, is a question of
credibility left to the jury.
Legally Operative Words = Some words are given legal
significance within the legal system. These words essentially
become an "event" because they have legal significance if they
occur. It just happens that in this case, the event described is
the uttering of certain the words. The “legal event" occurs in
front of a witness who is in court reporting it. We can test the
witness' memory, perception, sincerity and the ambiguity.
 Person testifies that he heard elderly person say “ I want
to give you this ring” to elderly person’s caregiver.
Offered to show donative intent.
 Solicitation for the purposes of prostitution
 Slander
 To prove offer of a K was made
 To prove Lexus was gift from Smith, Wesson will
testify:
o Smith told me, “I gave my Lexus as a gift to
Dee Duction yesterday.”  offered for the truth
of that asserted and is hearsay, not legally
operative event b/c it did not happen in front of
Wesson
o Smith told me, “I’m going to give my Lexus as
a gift to Dee Duction tomorrow.”  hearsay
o I was standing next to Dee and Smith when
Smith said, “Dee, here are the keys to my
Lexus. Accept it as my gift to you.” NOT
hearsay b/c proves donative intent since the
event happened in front of the witness
-
o I was standing next to Dee and Smith when Dee
said, “Smith, I still can’t tell you how much I
appreciate your giving me the Lexus yesterday.”
 hearsay b/c event did not happen in front of
witness
 Verbal Acts
 Problem 11-13 Charge: Accessory after the fact.
Witness, Doug Head, reports the following statements:
o Archie said, "I've just robbed a bank and need
help" = prove Reggie’s state of mind that
Reggie knew that Archie had committed the
crime
o Reggie said, "Hide in the cellar. You'll be safe
there." = not being used for the truth of that
asserted; verbal act, act of concealment
o Reggie said, "I have no idea where Archie is." =
not being used for the truth of that asserted;
verbal act or story
 11-14: Charge of extortion; Testimony that “Nittie
came into my store and told me that he’d blow up my
store if I didn’t pay him $1000 a month”  Yes, not
offered for truth of what is asserted only offered for
truth that it was asserted - verbal act and not hearsay
 11-15: Automobile accident; “I’m really sorry. The
accident was all my fault.”  offered to prove the truth
of that which was asserted and is hearsay
 Prior Inconsistent Statements
 2 statements about a topic: one during testimony and
one prior to it
 Statements must be inconsistent – where the arguments
occur
o Sometimes inconsistency is a matter of degree,
and depends on perception, perspective and
personal experience
 Assertions Offered to Provide Context and Meaning
 Often they are out of court statements where the
witness and the declarant are the same person
 If offered to show context or relationship, ask if there is
any significant fact that is gleaned from these
statements that is usable for substantive proof. If so,
then it probably has gone beyond context.
Exemptions vs. Exceptions
o With Exemptions, trustworthiness is not as great an issue because:
 The declarant is also testifying at trial and is subject to cross
examination, or
 The declarant is a party
o With Exceptions, there is something about the circumstances giving
rise to the hearsay that makes it trustworthy.
Exemptions
Rule 801(d)(1) = Prior Statements by Witnesses
-
Requirement:
o Declarant is present at trial or hearing and subject to cross-examination
concerning the statement.
Rule 801(d)(1)(A) = Prior Inconsistent Statements
-
Requirements:
o Declarant is present at trial or hearing and subject to crossexamination concerning the statement.
o It was a prior inconsistent statement
 If a witness is called merely to offer his prior inconsistent
statement for impeachment purposes, what result? – normally
not allowed unless:
 Essential witness test  witness goes to heart of case
and we have to determine whether this person tells the
truth
 Primary purpose test  if the primary purpose is to get
the information in front of the jury so that the jury uses
the information for the truth of what was asserted, then
no go
 If a witness is called merely to offer a prior inconsistent
statement which qualifies under 801(d)(1)(A), what result? –
yes
 Rule 607  just talks about credibility not about
hearsay; 801(d)(1)(A) undermines 607
 12-6: Baby Ruth – McCarthy told police that he heard a scream
and saw Duncan jump the fence carrying a purse and knife
 McCarthy at trial testifies that he actually didn’t see
Duncan on the night of the murder.
 Must be dismissed b/c it cannot be used for its truth b/c
prior inconsistent statement was not made under oath
 In CA, any prior inconsistent statement can be used for
its truth so case would not be dismissed.
o It was made under oath subject to the penalty of perjury at a trial,
hearing, or other proceeding, or in a deposition
 Incompetent advice of a tax shelter, affidavit signed by Witness
submitted to law school seeking an appointment as a professor
saying that no tax attorney should ever offer such advice;
Could be offered to impeach as an inconsistent statement
 Affidavit is not sufficient b/c it was not given during
proceeding or deposition
-
-
-
Wanda was riding in Paolo’s car:
o Wanda’s deposition – he was talking on the cell phone
o Wanda’s present testimony – she doesn’t remember
o Refresh her memory with the deposition, but she could still say she
doesn’t remember
o Requirements:
 Is declarant present and subject to cross? – yes
 Was it a prior inconsistent statement? – arguably yes – when
offered for its truth, the statement’s probative value is higher
 Was it made under oath? – yes in a deposition
o Matter of credibility for the jury not matter of evidence for the judge
Can establish that Wanda either doesn’t know Paolo that well or is lying to
protect him
o Rule 607 allows impeachment of your own witness
Worthy = police officer who saw the accident; and in deposition says he
say the cars collide, but later calls both attorneys and tells them that he
was mistaken
o Plaintiff calls Worthy and wants to impeach with prior inconsistent
statement
Rule 801(d)(1)(B) = Prior Consistent Statements – watch out for
bolstering
-
-
-
Requirements
o Is this a prior consistent statement – consistent with present
testimony?
 Requires absolute consistency
o Is it offered to rebut a charge of recent fabrication or improper
motive or influence – hedge on bolstering b/c only can offer prior
consistent statement if the improper motive or influence is an issue in
the case?
 Requires specificity.
o What is the motive?
o When did the motive arise?
o Does this offered statement pre-date that motive?
Father says Susan’s car was traveling no more than 25 mph. Aren’t you
her father? She cannot offer testimony that he told someone else earlier
that the car was traveling no more than 25 mph. Bias is not sufficient to
give rise to charge of recent fabrication and improper motive.
Tome v. United States, 513 U.S. 150 (1995)
o Father charged with felony child abuse
o Key evidence: statements by the child, medical evidence inconsistent
with vaginal penetration
o Divorce 1988, joint custody, father has primary physical custody
o Mother seeks custody, gets child over summer
o Before summer over, brings charges of child sexual abuse against
father
o Defense theory: allegations of abuse were concocted by mother so that
father would not be given custody
o Prior consistent statements made to baby sitter, social worker, etc.
during the summer child was with the mother.
o Motive = mother wanted custody of the child.
o When did the motive arise? – when father was granted custody or
maybe when they first started arguing about custody.
 Offered statements do not predate motive, they were made
after the motive of the mother wanting custody arose
o Dissent – relevancy determination = if the circumstances suggest the
statements are truthful then the theory that the statements were fed is
undercut
801(d)(1)(C) = Prior Identification
-
-
Requirements:
o Is the statement one of prior identification made after perceiving him
or her?
o Is the person who made the identification testifying at trial and
subject to cross-examination?
Hearsay is not the only objection to prior id, suggestive identification
objections
801(d)(2): Admissions
-
-
-
-
Statement need not be inculpatory
Doesn’t matter if statement is one of opinion
Doesn’t matter if the party lacks personal knowledge
Requirements:
o Statement made out of court.
o Declarant is a party
o Offered against that party
 Who’s a party?  State? – Police officer’s admission?
Victim’s admission?
 In criminal cases, state is NOT a party if by state you
mean police officer or victim. Police officer and
victim statements are not party admissions.
Prosecutor admissions are party admissions.
Policy for allowing:
o Increases likelihood that parties’ courtroom positions will be
consistent with their pre-trial statements.
o Fairness to offering party – other party can explain or deny.
Judicial Admissions
o Once a party opponent makes a statement in pleadings, pre-trial
admissions, interrogatories and the like, it cannot be disputed at trial.
 statements made during testimony is NOT judicial admission
o Such statements are characterized as binding judicial admissions.
Admissions by a party opponent
Tacit (Adoptive) admissions – 801(d)(2)(B)= by silence in the face of
something one would normally object to, often
-
-
o Requirements:
 Party heard and understood the statement
 Subject matter was within the party's personal knowledge
 Under the circumstances a reasonable person would have
disputed/denied the statement had it not been true
o Beverly’s arrested for selling drugs. Beverly says that the officer had
arrested the wrong guy, and that the drugs didn’t belong to her. Her
roommate Danny, told Beverly “Tell the truth for a change. You know
that the drugs are yours.” Beverly responded by hanging her head and
saying nothing. = adoptive admission, but she was already arrested
which includes the right to remain silent. Therefore she could have
been exercising her right to remain silent. Prosecutor would say she
waived her right to remain silent, but more often than not the court
finds it inadmissible.
o Apologies do not constitute admissions
Authorized admissions - 801(d)(2)(C)
o Requirements
 Is it a statement by a person authorized by the party?
 Is it offered against that party?
 Was the person authorized to speak on behalf of the party
regarding this matter?
 If, so, then the person's statement is attributable to the party.
o 13-13: Lawyer Lee: Lawyer = agent acting for his client therefore the
action is authorized
Employee admissions – 801(d)(2)(D)
o Requirements:
 Is this a statement by a party's agent or employee?
 Is the statement concerning a matter within the scope of the
declarant's employment or agency?
 Scope of Employment = related to a matter within the
scope of the agency or employment; narrower than
respondeat superior
 Was the statement made during the existence of that
relationship?
o Problem 13-17..Who among those mentioned have the job of dealing
with banana peels?
 Professor is not responsible for maintenance of the hall
 If you’re in charge you should be aware of any circumstances
o Problem 13-19.. Is there an economic or respondeat superior
relationship between Jeff and Sue – Sue lent Jeff her car?
 This is just a favor, there is no employment here.
 When money is exchanged for a service a business relationship
has developed.
o Problem 13-20..Is this an employee or independent contractor?
 Distinction between employee and independent contractor

-
Conditional admissibility = if the court finds a non-delegable
duty, then the independent contractor becomes an employee for
purposes of the rule
Co-conspirator admissions – 801(d)(2)(E)
o Requirements:
 A conspiracy existed – does not need to have been charged
 Statement made by a co-conspirator
 Statement was made during the course of the conspiracy
 Statement was made in the furtherance of the conspiracy =
moved conspiracy forward, not just idle chatter
o Standard of proof = preponderance of the evidence, less strict than
criminal burden of proof
o Bootstrapping = you can only offer it against the party if you believe
it to prove the conspiracy and it’s otherwise inadmissible hearsay.
 Some independently admissible evidence is necessary
 Bruton rule = in circumstances in which a statement can be
used against one co-defendant but is inadmissible against
another co-defendant, the co-defendants must be tried
separately
 Example = My cousin Vinny – one of the two
defendants says, “I shot the clerk?” which the police
officer turned into “I shot the clerk” – not made during
the conspiracy, therefore inadmissible against the
defendant who did not make the statement, but
admissible against the one who did make the statement
 Separate trials required.
o Drug conspiracy examples
Exceptions
Rule 803 – Declarant’s availability irrelevant  declarant not
required to testify, doesn’t matter whether declarant is in court or
not
Rule 803(1) - Present Sense Impression – more reliable b/c
perception is virtually simultaneous to the statement
-
-
-
Requirements:
o A statement describing or explaining an event
o Made while the declarant was perceiving the event or immediately
thereafter
Mostly conversations that happened over the phone. The person on the
line with the witness says something about what is happening while they
are on the phone.
Personal knowledge is necessary – look for other information to prove
personal knowledge
-
-
-
-
Courts prefer descriptive statements: Watch for impermissible opinions
imbedded in present sense impressions.
o Non-expert dentist proclaiming that the dental work is crappy =
impermissible opinion and not present sense impression
14-7: Nine One Mum – Diane’s mother testified that Diane called her on
the night of her murder and said “Warren’s here. He’s been drinking, he’s
got a gun and he’s planning to use it.”
o Doesn’t matter that the declarant is unavailable for cross-examination
o Diane’s personal knowledge? – Diane is Warren’s former fiancée
o 104(b) = decided in front of the jury and evidence sufficient to support
a finding is sufficient to bring into case
o “he’s planning to use it” = speculative and not based on personal
knowledge
o Can be used to prove Diane’s state of mind b/c the defense is selfdefense. A person who is afraid of someone is less likely attack that
person.
o Same statement to the 911 operator – recorded.
14-8: Email message from an unidentified sender telling him to “prepare
to die,” Jim immediately told his roommate, “Oh my God, this must be
another threat from Bill!”  No personal knowledge, and not admissible.
14-9: Mind the GAP – GAP customer service agent
o 30 minutes = too much time for excited utterance and the excited
utterance is usually made by a victim not a bystander
o No present sense impression either b/c 30 minutes is not
“immediately” after
Rule 803(2): Excited Utterances
-
-
-
Requirements:
o A statement that relates to a startling event or condition
o Statement made while the declarant was under the stress of
excitement caused by the event or condition
14-3: Excited Acceptance  Denise is in the ambulance from a car
accident and says “Oh my God, even though I’m in agony, I remember
that Bob agreed to buy my car for $25,000.” – the car accident is the
startling event not the contract dispute. Only capture those statements
that relate to the event that caused the person to be startled.
14-10: Second Opinion – Ruth goes to another dentist. To prove former
dentist’s work was sub-standard, Ruth seeks to testify that when the
second dentist examined the bridge for the first time, the second dentist
said, “Oh my God, who performed this shoddy work on you?”
o Startling event? – probably not b/c professionals are not usually
startled
o Also, this is a tricky way to get an expert testimony without putting the
expert on the stand.
o Not present sense impression b/c concluding that the bridge is shoddy
is an opinion
Rule 803(3) - The State of Mind Exception
-
-
-
Requirements:
o Statement of the declarant's then existing state of mind, emotion,
sensation, or physical condition (including intent to show that the
declarant did what he intended to do)
o But not including a statement offered to prove the fact
remembered or believed . . . – gotten directly from the declarant
14-17: Proof Possibles
o Tom’s testimony that “I saw the robbery and heard the clerk say,
‘Please, please don’t shoot me.’”  circumstantial evidence of internal
state of fear
o Tom’s testimony that “As soon as the robber ran off I went to check on
the clerk, who told me that ‘I was really terrified that I was going to
get shot.’”  present sense impression? – not made while the
declarant was perceiving the event or condition, but made immediately
thereafter – admissible
o Tom’s testimony that “As soon as the robber ran off, another person
and I ran over to check on the clerk. The other person said, ‘Oh my
God, the victim must have been terrified!’”  speculation, not based
on personal knowledge, inadmissible
o Tom’s testimony that “The day after the robbery, the clerk said to me
that ‘I was really afraid that I was going to get shot during the
robbery.’”  memory, inadmissible
o Tom’s testimony that “I saw the robbery and heard the clerk call out to
me, ‘Stay away, he’s got a gun and he’s going to use it.’”  offered to
prove clerk was fearful not used to prove truth of matter asserted, so
no hearsay problem and admissible
o Sylvester’s testimony that “The day after the robbery, the defendant
Jerry told me that ‘The clerk I stuck up yesterday was really
terrified.’”  party admission, so admissible regardless of lack of
personal knowledge
14-18: Tea Party  Jasmine had been depressed for weeks and finally
took her own life:
o To prove that Grey committed the murder, friend testifies “Jasmine
told me, ‘I’m afraid that my husband has been trying to poison me.’” –
using state of mind to prove a fact remembered.
o To rebut the defense claim that Jasmine committed suicide, friend
testifies “Jasmine told me, ‘I’m afraid that my husband has been trying
to poison me.’”  circumstantial evidence that rebuts the claim of
suicide, non-hearsay
o To rebut the defense claim that Jasmine committed suicide, friend
testifies that “the day before she died Jasmine told me, ‘I want to
live.’”  state of mind exception, admissible
o To prove Jasmine was depressed, friend testifies “2 weeks before she
died, Jasmine told him that that ‘I just can’t seem to stop crying these
-
-
days.’”  state of mind exception b/c it describes a declarant’s then
existing physical condition
o To prove Jasmine took her own life, friend testifies “day before she
died, Jasmine told him that ‘Soon, I might end it all.’”  Statement of
intent can be used to prove that the person did what the person
intended to do – admissible
o To prove Jasmine took her own life, friend testifies that Jasmine’s
sister told friend that “I’m really sad because I just left Jasmine’s
house and she told me that soon she might just end it all.”  Double
declarant problem – Jasmine’s statement = admissible under 803(3),
but Jasmine’s sister’s statement is about something remembered and
consequently inadmissible.
o To prove Jasmine took her own life, friend testifies that he rushed in,
saw Jasmine lying on her bedroom floor and said, “Oh my God, she’s
taken her own life!”  inadmissible b/c of lack of personal
knowledge.
The Hillmon Rule – action against insurance co. to recover from the death
of her husband = Statements of an out of court declarant's intent can be
admitted to show state of mind and that the declarant acted in
accordance with his or her state of mind (intent). Used to prove both
that declarant did what he said and did it with whom he said he did it.
803(3) is meant to capture the intent of the declarant and no one else’s,
however there are many courts that allow the statement to capture the
actions of other people too.
Problems 14-19, 20, 21
o Larry says "I am going to meet my drug dealer Angelo to stock up on
my supply of illegal drugs." – can be used to prove:
 The friend reasonably believed Angelo to be a drug dealer and
therefore had probable cause to call the police. – not relevant
b/c we don’t care what the friend believed
 This one under Pheaster! - Larry met Angelo in the parking lot,
but it is not admissible to prove that Angelo was a dealer who
was selling drugs.
 Larry met Angelo in the parking lot and that Angelo was
selling drugs. – inadmissible b/c Angelo being a drug dealer
was a belief
 Larry was in the parking lot, but it is not admissible to prove
either that Angelo was in the parking lot or that he was selling
drugs. – This one under 803(3)
 ”Larry told me that Angelo was going to be in the Sambo's
North parking lot later in the day." – Not allowed
 " I am going to meet Angelo in the parking lot of McDonald's
tonight."
 " On the morning that Angelo was arrested, Angelo told me
that Larry was going to be in the Sambo's North parking lot
later in the day." – party admission
Rule 803(4) - Statements for Purposes of Medical Diagnosis or
Treatment
-
-
-
No distinction between treating and diagnosing physician
Requirements:
o The statement was made for medical diagnosis or treatment
o It describes medical history, past or present symptoms, pain or
sensations, or the inception or general character of the cause or
external source
o Statement was pertinent to diagnosis or treatment
 Is the information necessary for determining appropriate
treatment or therapy?
 Does the information identify the source of the injury?
 What are appropriate indicia of trustworthiness?
A witness, a treating physician, testifies that the declarant who is the
plaintiff said:
o "The defendant's car went through the red light;" – not admissible that
defendant’s car was the one that went through the red light, however
the rest is admissible b/c pertinent to the fact that injuries are different
b/c of surprise
o "He was going 100 miles per hour;" – 803(4)  force with which he
was hit could be pertinent to diagnosis or treatment
o "He hit my car broadside;" – 803(4)  could be pertinent to the
diagnoses or treatment
o "I immediately felt a pain in my neck;" – 803(4) not 803(3) b/c it is
backward looking
o "My neck still hurts." – 803(3)
Personal knowledge required except when dealing with incompetent or
child, parent/guardian can make the statement and it doesn’t matter that
the parent/guardian lacks personal knowledge
Rule 803(5) - Recorded Recollection
-
-
Requirements:
o Memo or record  audio or videotape = ok
o Regarding a matter about which the witness once had knowledge but
now has insufficient present memory [to testify fully and
accurately].
o Made by the witness or adopted by the witness
o when the witness's memory was fresh
o to reflect knowledge correctly.
Show the witness a police report that witness did not write = ok under 612
but not under 803(5) b/c lack of personal knowledge.
o Witness must testify from present knowledge not from what the report
said.
o Leading b/c witness has not offered information that the witness had
any knowledge of the fact that the defendant slurred his words
o Because the witness has definitively answered the question “no,” there
is no recollection that needs to be refreshed. You can’t refresh a
definitive answer.
o Notes taken of a conversation 1 week after the event occurred in which
the declarant made an identification of the defendant  1 week later
= too late.
Rule 803(6) Business Records
-
-
-
-
Requirements:
o memo, report, record, etc.
 Medical records fit here.
o made at or near the time
o by a person with knowledge or transmitted by a person with
knowledge;
o kept in the regular practice of that business activity to make the
memorandum;  is this something that the business relies upon for
its daily function?
o shown by custodian or other qualified witness – business record
affidavit can be a substitute; whoever knows the process – must testify
to the fact that the memo was kept as part of the business
o unless untrustworthy – argument here
Palmer v. Hoffman  person struck by train; engineer’s written statement
concerning railroad’s investigate accidents ruled not a record kept in the
regular practice of that business activity to make the memo.
o Problem really is the trustworthiness b/c the whole point of the
business record is to defend against litigation.
o If done strictly for the purposes of litigation, probably not
admissible under this exception.
14-33: Kim is a prostitute whose diary contains details about clients,
payments, etc.  business records can be for an illegal business;
prostitution and extortion are businesses under 803(6); defense has failed
to satisfy other foundational requirements  hasn’t shown that they were
made at or near the time of the transactions – consequently inadmissible
unless defense can put on evidence that they were made at or near the
time.
Business records that contain statements
o Reports says X says
o Report itself admissible as a business record
o Statements within the report must be examined to determine if the
makers of those statements had a BUSINESS DUTY to make such
statements
o Otherwise it is hearsay and you must look for another exception.
Rule 803(8) Public Records
-
Requirements:
o 803(8)(A): the activities of an office or agency = X filed a lien on
blackacre; records received at the department of treasury
-
-
-
o 803(8)(B): matters observed pursuant to a duty imposed by law =
rainfall records at weather bureau; court reporter’s
 Duty to report
 Except in criminal matters observed by police
o 803(8)(C): factual findings resulting from an investigation = bureau
of mine investigations after a mine accident; EEOC investigation;
probable cause hearings
 Made pursuant to authority granted by law
 Only in civil cases or against the government in criminal
cases
o Must be trustworthy.
Beach aircraft corp. v. Rainey  wrongful death action by pilots of
aircraft; JAG investigation concludes that pilot error is at fault
o Issue: is the conclusion a factual finding or is it opinion?
o Distinction between opinion and fact does not matter  As long as
the opinion is in a report that contains factual findings and the
opinion is based on the factual findings, the opinion is admissible.
Peckem v. Daneeka:
o Civil action for damages caused by the speeding
o Police Report offered
o Admissible b/c 803(8) allows the police reports to be used in a civil
action
14-44: Blood alcohol report = .12 above .08 limit:
o Admissible in civil case
o Inadmissible in criminal case against defendant
o Admissible in criminal case if offered by defendant against the
state  example of non-hearsay b/c it is being offered to prove bias
not to prove the truth of the contents
Rules 803(10) - (23)
-
Vital Statistics  birth certificate, death certificates
Family Records
Dispositive Documents
Ancient Documents  how ancient can they be
Reputation as to character  you know someone’s reputation based on
the hearsay you have acquired from other people
Learned Treatises  impeachment of an expert with a “learned treatise”
= a cheap expert
Rule 804 – Declarant unavailable
Rule 804(a): Definition of Unavailability
-
(1) Privilege = 5th Amendment; marital; attorney-client
(2) Refuses to testify despite order
(3) Lack of Memory
(4) Unable due to death or infirmity – death certificate
-
-
(5) Despite efforts, cannot be procured for the hearing = more than just “I
made a phone call” – repeated efforts to serve subpoena
(6) Unless unavailability procured by the proponent of the statement =
cannot create your own unavailability – can’t kill the star witness to
avoid his testimony
804 unavailability more strict than FRCP 32(a) unavailability
o Dana is a plaintiff in a personal injury case. Jeff = star witness snowed
in on his vacation.
 804(a)(5) does not work b/c she could have subpoenaed him,
so she has not made appropriate efforts
 Judge may grant a continuance until he gets out of the
snow – certainly if witness was subpoenaed
 32(a) FRCP looks like it should be admissible, but most courts
don’t let vacation account for 100 miles away exception
Rule 804(b)(1): Former Testimony
-
Requirements:
o the declarant is unavailable;
o there was an opportunity for cross-examination at the first
proceeding (including deposition) – cross examination does not have
to happen;
 If there was a decision that former attorney was incompetent,
then no opportunity for cross-examination b/c of
incompetence.
o the testimony is offered against the same party against which the
hearsay was offered(or in a civil case, a predecessor in interest)
 Alphonse and Gaston are indicted jointly for robbery, but tried
separately. If Teller identifies both as the robbers in
Alphonse’s case. Not admissible against Gaston in his case b/c
he never had an opportunity to cross-examine the witness.
o there was a similar motive to cross-examine in both proceedings. – if
a civil case follows a criminal case, usually the similar motive exists
 What is at stake at the previous proceeding?
 Under what conditions was the previous testimony developed?
 Generally if the previous proceeding was criminal and the
following civil, that will suffice (but not always true.)
Rule 804(b)(2): Dying Declaration – religious notion (people don’t
want to meet their maker with a lie on their lips)
-
Requirements:
o 1. Declarant unavailable per 804(a);
 Does not have to be dead under FRE
o 2. Believes that death is imminent at time of statement – based on
assessment of situation around the statement;
o 3. The statement concerns the cause or circumstances of impending
death – not just any circumstance;
o 4. Homicide prosecution or civil case.
 Not in other criminal case – i.e. attempted murder
o 5. Personal Knowledge
Rule 804(b)(3): Statements Against Interest
-
-
Requirements:
o Declarant unavailable per 804(a).
o The statement is so far against declarant's interests that declarant
wouldn't have said it if he or she didn't believe it.
o The interests considered are:
 Pecuniary interests – interest in money (“I owe $10K to
Joe”);
 Proprietary interests – interest in property (“This is your
coat”; “I sold blackacre”);
 Civil liability – (“I was at fault in this accident.” “I agreed to
sell this”);
 Criminal liability – (“I just sold 2 pounds of coke”) –
sometimes plea bargains in which the criminal admits to
multiple crimes to get a lesser sentence are actually in the
criminal’s interest and consequently not under this rule.
o Against Interest =
 Must be adverse to the declarant
 The declarant must be aware of that adversity at the time of
making the statement
Declarations Against Interest Offered for Exculpatory Purposes
o When a declaration against interest is offered to exculpate an accused,
then in order for it to be admissible, we need additional
corroborating circumstances that clearly indicate its
trustworthiness. – Honor among thieves = criminals will lie to get
other criminals off. Statement, not just the declarant, must be
trustworthy. Standard is indicia of reliability = look at all the
circumstances that surround the statement to give it reliability, not
other factors of exculpation.
o What constitutes corroboration?
 The most typical corroboration is other evidence in the case
that makes the defendant appear innocent
 However, circumstances surrounding the declaration against
interest can be corroborating in some instances
o How Much of the Declaration Can be Included?
 Collateral statements
 This comes up a lot in exculpatory statements because the
exculpating part is generally not the part that is against interest
– “I did the crime” = against interest; “I did the crime. The
defendant didn’t” – not all against interest.
 Is the relevant portion "integral to the whole?" = Is this an
important part of the statement for understanding the whole
thing?

The Advisory Committee Notes use the term "related" to deal
with collateral statements.
Rule 804(b)(4): Statement of Personal or Family History
Rule 805: Hearsay Within Hearsay
-
Identify all of the pieces of hearsay and
Identify exceptions, or theories of non-hearsay, that will allow each piece
to be admissible.
Example: Doctor’s investigations/medical records are allowed, but the
patient’s statements to the doctor may not be unless made for purposes of
diagnosis – pertinent to the diagnosis.
Rule 806: Impeaching the Hearsay Declarant
-
-
A hearsay declarant is impeachable as would be any other testifying
witness,except
o Biased
o Speculation
o Character for truthfulness
o Former conviction
A hearsay declarant need not have an opportunity to explain or deny a
prior inconsistent statement
A declarant can be called and cross examined about the statement by the
party calling that witness
Rule 807: The Residual Exception
-
Requirements
o Are there equivalent guarantees of trustworthiness – look
exclusively at the circumstances surrounding the statement not at
other circumstances that support the statement?
 Time
 Sincerity
 Lack of ambiguity – Communication
 Memory
 Perception
 “Near miss” Argument – almost have a hearsay exception but
some element is missing; some courts allow, others do not b/c
exception would swallow the rule
 Cuts both ways
 Child Sexual Abuse Testimony – States have hearsay
exceptions  Idaho v. Wright
 Grand Jury Testimony – may no longer be available after
Crawford b/c D is not allowed to confront witness in a Grand
Jury
 More trustworthy if made under oath
 Personal knowledge
o Is the statement offered as evidence of a material (slightly more than
relevant) fact? Has to be pretty important!
o Is the evidence more probative on the point for which it is offered
than any other evidence the proponent can procure through
reasonable efforts? – similar reasonable efforts to the unavailability
ruling, but 807 does NOT require unavailability
o Are the general purposes of the rules and interests of justice served
by admitting this evidence?
o Has reasonable notice to the adverse party been given? – parties
have been relieved of notice if the evidence comes out on the eve of
trial.
 No prejudice to the opponent – continuance solves the problem
of prejudice.
Confrontation Clause = 6th Amendment; “the accused shall enjoy
the right to be confronted with the witnesses against him”
3 rights:
-
Right to be present at trial
Right to face his/her accuser (different from cross-examine) – issue in
child abuse cases
Right to cross-examine witnesses – hearsay problem!
o Crawford v. Washington  if hearsay is testimonial hearsay, it
cannot be offered in a criminal case even if it meets a hearsay
exception (declarations against interest made to a police officer for
example)
 If not made to police, in Grand Jury, to prosecutor, or to some
other member of the government, then no confrontation
clause problem
 16-8: Tender Years  4 year old child ruled unavailable as a
witness without hearing – defendant will never be able to face
his accuser so good Confrontation Clause objection b/c it is not
particularized
 Child Protective Services Worker = testimonial? –
private party or State induced testimony? Could be a
normal interaction not generated by the State
o Would the setting lead objective witness to
believe statement would be used in
proceeding?
o If it is considered State generated testimony,
then it could not be used under Crawford.
o Pre-Crawford we would be concerned with
reliability, but now we are not.
o If statement was made to a babysitter, then it’s a
private party conversation and admissible as
long as it meets a hearsay exception
requirement.


16-9: Gang shooting
 Statement by Winters to paramedic – present sense
impression.
o Private party conversation – does not implicate
Confrontation Clause
 Impeach hearsay declarant with
information that he runs a rival gang.
 Testimony given by Summers to Grand Jury – barred
by Confrontation Clause
16-12: Conspiracy to distribute drugs; Statement by coconspirator to undercover police officer = 801(d) exception
 An objective witness would not reasonably believe this
statement would be later used in a proceeding = NOT
testimonial and admissible.
Rule 701: Lay Opinion – often offered b/c it is efficient and cheap
-
-
-
-
Opinions = Conclusions based on factual observations; “He looked crazy,
nervous, drunk, etc.”
o Not all opinions are inadmissible = “he smiled” is ok, don’t have to
say the left side of his mouth raised a half an inch and the right side of
his mouth raised a half an inch
Lay opinion is limited to opinions or inferences that are:
o Rationally based on the perception of the witness – implies logic
that conclusion is based on facts and
 Preference for specific over general
 Judge decides
o Helpful to a clear understanding of the witness' testimony or the
determination of a fact in issue – Helpful = useful NOT necessary
 "You had to be there" circumstances: the witness' recounting of
the facts does not capture the reality of what happened –
difficult to deconstruct into component factual parts
 "Collective facts:" a shorthand rendition of what the witness
perceived. Example: a smile. Inferences a lay person
commonly and reasonably draws.
o Not be based on scientific, technical, or other specialized knowledge
within the scope of rule 702.
Want to be able to cross-examine – harder to do when dealing with
conclusions
Want to be sure the trier of fact makes the conclusions not the witness.
Express a "collective fact" or a "skilled lay observer's" opinion? – much
argument about whether skilled lay opinion should be admissible;
collective fact = “he smiled at me” for example
Drawing conclusions from the facts presented is usually the job of the jury
– if conclusion goes to heart of case, then jury should be left to decide.
Problem 8-1 High on Marijuana
Is this opinion testimony? – Witness, passenger in plaintiff’s car, wants to
say that defendant was very high on marijuana at time of accident  yes,
conclusion based on many factual perceptions
Is there a way to express the underlying facts that lead him to this
conclusion without using his lay opinion? – establish facts that gave rise to
notion that other was high and facts that establish personal knowledge
about what people act/look like when high
Is "being high" something that is within common experience? – no, so
must establish how the witness knows what it means to be high; wouldn’t
have to establish experience if it is considered “common experience”
Skilled Lay Opinions
The admissibility of a skilled lay observer's testimony turns not on
whether most layperson's commonly could reasonably draw the inference
but whether this lay person has prior experience that enables lay persons
with such experience to reasonably draw the proffered conclusion.
8-3: The Stolen Ring: Charge of felony theft of diamond ring; For offense to be felony, it
must be more than $5K; Cop testifies that the ring had a fair market value of $7K based
on shopping for a diamond ring.
Based on technical knowledge defined by 702 as expert opinion.
May still be able to offer as a skilled lay opinion based on the cop’s
shopping around – challenge weight
Not rationally based b/c diamond price is based on variables not included
in the cop’s experience.
Handwriting
Have there been sufficient observations of the handwriting so to reliably
determine if it is the handwriting known to the witness? – too expensive to
pay for expert here.
Look at Rule 602: Does the witness express that he has personal
knowledge sufficient to draw this conclusion?
How do you impeach an opinion witness? – Suggesting they don’t have
enough experience
Is this within common experience?
How fast was the car traveling when it was hit by the plane? – speeds of cars are
appropriate lay opinion = matter of common experience
How fast was the plane traveling just before it collided with the car? – not a matter of
common opinion
Stumbled = opinion b/c it’s a conclusion based on component sense data, but useful b/c
based on personal knowledge
Smelled like he had been drinking alcohol = opinion but common experience
Height and weight estimates = opinion but common experience
Without sleep seemed disoriented = opinion, but not rationally based
Appeared to have a very large ego = opinion and not helpful to the jury