Evidence Outline—Barnes 2006
I.
II.
Introduction to Evidence
a. Rule 101. Scope
i. The rules govern federal courts (bankruptcy, district courts, etc.)
b. Rule 102. Purpose and Construction
i. The rules are meant to ensure:
1. Fairness in administration
2. Elimination of unnecessary expense and delay
3. Promotion of the truth
ii. Courts shall exercise discretion to promote the ascertainment of the truth
iii. We have these because we mistrust juries, want to ensure accuracy and control the
scope and duration of trials
c. Rule 106. Remainder of or Related Writings or Recorded Statements
i. When a writing or recording or any part thereof is introduced, an adverse party may
require at that time any other part of the writing or recording which in fairness should be
considered contemporaneously
ii. The adverse party can introduce other parts of the writing or other related writings—
makes things complete—fairness requires this (includes statements that are entered for
limited purposes (ex. Impeachment)
iii. Oral statements are not included—the remainder of oral statements may be introduced
on cross-examination
iv. *Avoids mistaken or misleading first impressions (statements taken out of context);
avoids the inadequate remedy of introducing it after the jury already has the
misinformation in their minds
v. *Must explain, modify, qualify or otherwise shed light on the writing or recorded
statement introduced
The Roles of the Judge, Jury and Attorneys at Trial
a. Rule 103. Rulings on Evidence
i. (a) Effect of Erroneous Ruling: Error may not be predicated on an evidentiary ruling
(at any stage of a case before or at trial) unless a substantial right of the party is
affected; the objection need not be renewed to preserve a claim for error on appeal
ii. The appeals court is only asked to judge if the error was brought to the attention of the
court and the court nevertheless persisted—mere technical violations are not sufficient
for reversal
iii. Appeals court bases decisions on abuse of discretion (clear error of judgment)
iv. Substantial Right: Had a material affect on the outcome of the trial, substantially swayed
the deliberations of the jury
1. Objection: If the ruling is one admitting evidence, a timely objection appears on
the record, stating the specific ground for objection if the ground was not
apparent from the context
a. Can’t raise an objection later unless made at trial or plain error existed
b. Objection must be specific—if it is only a portion of the evidence the
objections needs to be specifically targeted
c. Must specifically request a continuing appeal on that line of inquiry if you
want it to last during the questioning
d. Objection must be made as soon as the evidence is presented (before
answer); if the grounds for objection are not apparent until after the
answer, a motion to strike is appropriate
e. Once one enters evidence, they cannot later object to its admission, the
door is then open, invited error (only on that issue)
f. A failure to object is a waiver to the error
2. Offer of Proof: If it is one excluding evidence, the substance of the evidence was
made known to the court by offer or was apparent from the context (Proffer)
a. To save the right to appeal, you must offer proof of the nature of the
evidence so the judge can determine if they want to correct their ruling
and so reviewing court can determine if it affected substantial right—
failure to offer precludes raising question on appeal
b. If it is obvious from the context you need not offer proof, but that is risky
c. Preserves a full record for appeal
d. Can use testimony of a witness or enter object as proof of error-out of
reach of jury
v. (b) Record of Offer and Ruling: The court may add further statements which shows the
character of evidence, the form of it, the objection made and the ruling thereon
1. Offer of proof includes explaining the substance of anticipated answers of a
witness; document added to the record; the purpose of the evidence should be
stated
vi. (c) Hearing of Jury: Proceedings should be conducted so as to prevent inadmissible
evidence from being suggested to the jury as best as possible
1. The parties should ask objectionable questions and settle disputes behind closed
doors or at the bench so the jury does not hear them; can also ask in advance of
trial to get a ruling (motion in limine)—shields the trier of fact from the
inadmissible evidence
2. If the court’s objection is not definitive, the objection must be renewed each time
evidence comes up and the court may change its mind once the evidence comes
up at trial
vii. (d) Plain Error: Nothing precludes taking notice of plain error affecting substantial
rights even if they are not brought to the attention of the court.
1. If an error so affects a substantial right, even if a proper objection was not made,
then the court may review it—do not rely on it because it is rare
2. Usually an obvious error that seriously affects the fairness and integrity of judicial
proceedings
b. Rule 104. Preliminary Questions
i. (a) Questions of Admissibility Generally: Preliminary questions concerning the
qualification of a person to be a witness, the existence of privilege, or the admissibility of
evidence is to be determined by the court
1. Not submitting factual disputes to the jury during the trial saves time, money and
confusion; also prevents juries from hearing evidence to make a decision and then
being forced to forget it
2. The court can look an inadmissible things, except privilege, to make its decision
ii. (b) Conditional Relevance: When the relevance of evidence depends on another
condition of fact, the court shall admit it upon the introduction of evidence sufficient to
fulfill that condition
III.
1. In order to admit evidence that is conditioned on fact, the offeror must
demonstrate a prima facie existence of the fact and it must only consider the
evidence the jury will have before evidence is admitted—the jury will then see the
evidence and the supporting facts together
2. Can promise to show connecting facts after entering the evidence as well; if
that link is not shown then evidence will subject to exclusion
3. There must be evidence to fulfill the condition—sufficiency is a low standard
iii. (c) Hearing in the Presence of Jury: Hearings on admissibility of confessions to be
conducted away from jury; hearings on other preliminary matters shall be out of the
hearing of the jury when the interests of justice so require
1. The court decides if it will be within the hearing of the jury (it can be in the
presence—say a sidebar—just not in “hearing”)
2. In determining whether to do it in the hearing of the jury, the court must consider
the potential for prejudice derived from the jury’s hearing
3. If the hearing is to determine the admissibility of confession it must be conducted
outside the hearing
iv. (d) Testimony by Accused: If the accused testifies at a pretrial hearing, he is not subject
to cross-examination as to other issues
1. The testimony may not be used against him as evidence in chief at trial, but it may
be used to impeach him
Relevance
a. Rule 401. Relevant Evidence: Evidence having any tendency to make the existence of any fact
that is of consequence to the determination more probable or less probable
i. Relevance is a minimal threshold, if it is not relevant it is not getting in; admissibility of
relevant information turns on the purpose for which it is offered
ii. It is about relationships—chain of inferences
iii. A fact of consequence=material fact
1. Direct evidence
2. Circumstantial
3. Evidence that bears circumstantially upon the evaluation of the probative value
given other evidence (creditability, demeanor, impeachment, background, etc.)
iv. Evidence which is essentially background in nature may be admitted if it helps
understanding
v. Types of evidence
1. Real—physical, tangible evidence or the thing itself
2. Representative (Demonstrative): evidence that represents something else
(diagram, chart, photo, x-ray)
3. Testimonial—comes from witnesses by voice
vi. Probative Value: “More probable or less probable than it would be without the
evidence”
vii. R. 410 questions:
1. What is the issue in the case?
2. To what fact is this potential evidence addressed?
3. Is that a fact of consequence to the issues in the case (Materiality question, does it
help us out?)
4. Does this evidence make the fact more or less probable?
IV.
V.
b. Rule 402. Relevant Evidence Admissible, Irrelevant Evidence Inadmissible: All relevant
evidence is admissible except as otherwise provided. Evidence which is not relevant is
inadmissible
i. Rules 404, 405 and 407-412 show situations in which relevant evidence is inadmissible
ii. Sometimes inadmissible because of risk of misleading, confusion or prejudice
Relevant but Inadmissible; Unfairly Prejudicial Evidence
a. Rule 403. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion or Waste of
Time: Relevant evidence may be excluded if its probative value is substantially outweighed by
the danger of unfair prejudice, confusion of the issues ,misleading the jury, undue delay and
waste of time
i. There is a presumption that relevant evidence is admissible, need to prove that it
prejudice substantially outweighs the probative value
ii. Avoids decisions on purely emotional basis, wasting time
iii. Unfair prejudice means that it has an undue tendency to suggest a decision on an
improper basis (usually an emotional basis)—all evidence prejudices, we need unfair
prejudice
1. Old Chief: Probative value should be determined by comparing the evidentiary
alternatives to the item—is something is similarly probative but less prejudicial,
admit it
iv. Favors admitting relevant evidence in all but the most grievous situations; should be
applied sparingly and the counsel should be given the chance to present it in another
manner
v. The court should consider the importance of the fact of consequence the evidence
supports, the alternative proof, potential for a limiting instruction.
vi. The more it looks like propensity, the greater the prejudice
vii. Classic 403 Problems
1. Probability—statistics showing that it is probable a person did it (DNA is an
example that is usually allowed, but often problematic because it will prejudice or
mislead)—only in criminal
2. Graphic Descriptions: Things that make the jury physically ill—must be very bad
to overcome probative value, but can argue there is alternative evidence—lose
your lunch
3. Reenactments: They must be substantially similar to the event
4. Similar Happenings: They must be substantially similar to the event in question;
common uses include 1) Accidents or defective products; 2) Sales of property or
services; 3) Prior course of dealings between the parties; 4) Prior custom or usage
in industry
5. Scientific evidence
6. Prior dealings
Authentication, Identification and the “Best Evidence” Rule
a. Authentication may be obtained through a pleading, by a request to admit, by deposition,
interrogatory, or as a result of a pretrial agreement; or it can be introduced at court
b. Even if authenticated, the evidence may not be admissible if it does not meet 403, a hearsay
exception or is not relevant
c. Samples must be representative of the mass if it is to be entered
d. Must show that a thing is what it is said to be, this is very low—jury just needs sufficient
evidence (can include testimony of a witness who is then cross-examined)
e. Rule 901. Requirement of Authentication or Identification: Authentication is satisfied by
evidence sufficient to support a finding that the matter is what its proponent claims—(once you
have authenticated, you have established 104(b) foundation)—contrary evidence goes to weight
jury should give evidence, not admissibility ; examples include:
i. Testimony of a witness with knowledge: Testimony proving it is what they claim—
must be personal knowledge acquired by any of the five senses
1. If the evidence is distinctive, someone can testify to it, but if it is not (ex.
narcotics) you must hear from each individual who saw it and they must say it
remained in essentially the same condition
ii. Non-expert opinion on handwriting: Verifies a person’s handwriting based upon
familiarity with it not acquired for purposes of litigation (they see it a lot)
1. Ex. Must prove that a letter was actually written by the defendant
2. Can acquire knowledge by watching a person write or by conducting
correspondence with them
3. Need an assertion of familiarity and description of the situation in which
knowledge was acquired
4. Can testify in less than absolute terms (ex. “I believe”) and the jury will weigh it
5. Cannot testify rely upon familiarity developed for the purpose of litigation
6. Where a genuine issue is raised about the validity of a document, an expert will be
required since a layperson is unfamiliar with the subtleties of handwriting analysis
iii. Comparison by trier or expert witness: Comparison with other previously
authenticated items
1. Comparing two things side by side to show that they have similar enough
characteristics that (Ex. ballistics, handwriting, fingerprints)
2. Can be done by the trier of fact alone or with help from an expert
3. Once the authenticated sample is admitted, counsel can present it in modified
form (blown up) to demonstrate graphically the similarities or differences of the
disputed item
iv. Distinctive characteristics: Appearances, contents, substances taken in conjunction
with the circumstances
1. Ex. A letter may be admitted without handwriting analysis if it contains
information that people other than the sender are not likely to possess
2. If something is proven to be a reply to a letter, call, etc. can be authenticated
based on its contents
v. Voice Identification: Identification of first hand or through mechanical transmission
based upon hearing it at any time under circumstances connecting it with the speaker
1. A witness who is familiar with a voice from before or after the transmission can
testify to it
2. Must prove familiarity with the voice and the circumstances under which they
became familiar
3. A defendant can be compelled in order for a person to make an identification
vi. Telephone Conversations: Evidence that a call was made to the number assigned at that
time by the phone company if A) the person is shown to be the one who called B) the
business called would indeed do business over the phone
1. In order to admit a telephone conversation, even if the defendant identifies
himself (hearsay), must be authenticated by someone who can recognize the voice
or can be circumstantial if evidence shows that the speaker must have been the
witness
vii. Public Records; Ancient Documents (20 years or older); Process or System
1. Must have someone with knowledge attest that the documents are what they are
purported to be and are not forged and that they are accurate
f. Rule 902. Self-Authentication: Evidence of authenticity is not required to admit the following
(must actually present the item, not merely testimony that it was such an item) because the
likelihood of fabrication or honest error are slight compared with the time and effort required to
authenticate:
i. Domestic public documents (under seal or not under seal, but with a signature of
someone in an official capacity)
1. There is no need to authenticate the seal or the signature that states that the
document is an authenticate public document (the reasoning is that forgery is a
crime)
ii. Foreign public documents executed or attested by a person in an official capacity which
states that it is authentic
1. All parties must have had an opportunity to investigate its authenticity—limited to
persons possessing an official seal which is believed to limit the risk of
fabrication
iii. Certified copies of public records A copy of an official record certified as correct by the
custodian of the documents
1. This recognizes the inconvenience and danger of removing public records from
their usual place
2. The custodian attests that he has custody of the original record and the copy is
true or correct
3. Applies only to “official public records” (ex. reports, records, data compilations)
it does not apply to general documents produced by public officials that are not
entered
iv. Official Publications
1. Books, pamphlets and other publications issued by a public authority—they are
not automatically admissible, but are considered authenticate
v. Newspapers and Periodicals
1. Printed materials, included the advertisements, articles and notices should be
considered authentic even if they are not authoritative
vi. Trade Inscriptions and the like
1. Inscriptions, signs, tags, labels affixed in the course of business to indicate
ownership, control or origin are self-authenticating
2. The public relies on these in their day-to-day lives
vii. Acknowledged Documents
1. These are documents executed before a notary public or similar official—must
have been executed in their presence
viii. Commercial Paper
ix. Certified domestic and foreign records of regularly conducted activity
1. Documents that would be admissible under 803(6) if accompanied by a written
declaration of its custodian or otherwise qualified person
g. Best Evidence Rule (“Original Writing Rule”)
i. States a preference for the production of the original of a writing, recording or
photograph when the contents of the item are sought to be proved. Secondary evidence of
the content is allowed only if the absence of original writing is properly explained.
h.
i.
j.
k.
1. Seiler v. Lucasfilm: When the (drawings, writing) are at issue, you need to provide
an original unless it no longer exists through no fault of the proponent
ii. Guarantees the accuracy of information
iii. Goals are to prevent fraud, avoid unintentional mistakes in copying, avoid good faith
errors in testimony
iv. If you can get from the testimony to the conclusion without the actual writing (testify
from memory), then Best Evidence Rule does not apply—only applies if you are
essentially reciting what is in the record
Rule 1001. Definitions
i. Writings and Recordings
1. Letters, words or numbers set down in handwriting, typewriting, printing,
photographing
ii. Photographs
1. Still photographs, x-rays, video tapes, motion pictures
a. Witness must say that it is a fair and accurate representation; no need for
the photographer
iii. Original
1. The writing or recording itself; the original of a photograph is its negative or any
print therefrom; computer printouts of data
2. Retained copies may qualify as originals of business or public records if they
were created merely as a record or evidence that serves the same purpose as the
original (Ex. a duplicate of a sales receipt that was given to a customer)
iv. Duplicate
1. Counterpart produced by the same impression as the original; photography
includes enlargements; re-recording, chemical reproductions which accurately
reproduce the original
2. Hand produced copies are not originals unless so intended
Rule 1002. Requirement of Original
i. To prove the content of a writing, recording, or photograph, the original is required
unless otherwise provided
ii. The contents of a writing or recording are required to be sought; if the contents are not
sought to be proved then evidence other than the original might be allowed
Rule 1003. Admissibility of Duplicates
i. Duplicates are allowed unless a genuine question is raised about the authenticity of the
original or it would be unfair under the circumstances to admit a duplicate instead of the
original
ii. Duplicate must have been created by a method providing assurance of accuracy and
precision
Rule 1004. Admissibility of Other Evidence of Contents
i. Originals are not required and other evidence (secondary evidence) of the contents of a
writing, recording or photograph is admissible if (the court determines whether the
excuse for not presenting is sufficient):
ii. Originals Lost or Destroyed
1. All originals have been lost or destroyed, unless destroyed in bad faith
2. Proof of loss must be made to the court and will show that the document could not
be found after a diligent search or personal knowledge of destruction
3. The search must be reasonable
iii. Original not Obtainable
VI.
1. No original can be obtained by any available judicial process or procedure
2. Original must be traced to a third party and show that for whatever reason that
person cannot be subpoenaed to produce the original and that no other judicial
procedure compelling production is available
3. It is not necessary to show that reasonable efforts to secure the original were made
or would have been fruitless, merely that it cannot be compelled
iv. Original in Possession of Opponent
1. At the time when the original was held by an opponent, that party was put on
notice and that party did not produce the originals
2. Notice may be provided by pleadings or be given otherwise and if the party
should have reasonably understood that the original would be required then no
notice is required
v. Collateral Matters
1. The writing, recording, or photograph is not closely related to a controlling issue.
2. The content of the writing is at issue, it is unlikely that the item can become the
center of controversy of real significance
l. Rule 1005. Public Records
i. The contents of an official record or document authorized to be recorded and filed and
was actually recorded, may be proved by copy certified as correct under Rule 902 or
testified to be correct by a witness who compared it with the original
ii. Same as 902(4); even if there is a dispute about the accuracy of a copy, the original does
not need to be produced
iii. Encourages the use of a copy rather than the original for cost and convenience sake
m. Rule 1006. Summaries
i. Contents of voluminous writings which cannot conveniently be examined in court may be
presented in the form of a chart, summary or calculation. The originals shall be made
available for examination or copying by the other party and the court can order them
produced in court
ii. A proper foundation must be laid to establish the correctness of the exhibit and otherwise
authenticating the writing; these are not allowed if any of the information on which it is
based is inadmissible
n. Rule 1007. Testimony or Written Admission of Party\
i. Contents may be proved by the testimony or deposition of the party against whom offered
or by that party’s written admission, without accounting for the nonproduction of
original
ii. You can use a duplicate without saying why you aren’t using the original if the other
party has testified that it is authentic
iii. Oral admissions about the contents are not allowed, must simply authenticate the
document itself
o. Rule 1008. Functions of Court and Jury
i. Whether a evidence can be admitted is up to the court based on Rule 104, but questions
about A) whether the evidence ever existed, B) whether it is the original or C) whether
the evidence of other contents correctly reflects the contents is for the jury.
ii. The court decides if presentation of the original is excused
The Examination of Witnesses
a. Rule 601. General Rule of Competency: Every person is competent to be a witness unless
otherwise provided in the Rules.
i. Competency is a presumption and is rarely disputed except for young children
VII.
ii. Helps maintain fundamental fairness of trial process
b. Rule 602. Lack of Personal Knowledge: A witness may not testify to a matter unless they have
personal knowledge of the matter. Evidence of personal knowledge may consist of the witness’
own testimony.
i. Exceptions include experts, hearsay
c. Rule 603. Oath or Affirmation: Every witness shall take an oath that they will testify truthfully
d. Rule 604. Interpreters: An interpreter is subject to the provisions relating to qualification as an
expert
e. Rule 605. Competency of Judge as Witness: The judge presiding at trial may not testify as a
witness
i. Complete bar to his testimony
f. Rule 606. Competency of Juror as Witness
i. At trial: A member of the jury may not testify as a witness before the jury on which he is
sitting.
ii. Post-Trial: A juror may not testify to any matter or statement occurring during the
course of the jury’s deliberation; or anything relating to the thoughts or emotions of
another juror; or their assent or dissent from the verdict; or the juror’s mental process.
They can state whether extraneous prejudicial information or improper influence took
place.
1. The need for finality often requires accepting some improprieties—basically can’t
testify unless there was illegal jury tampering or newspapers or something
The Impeachment of Witnesses
i. Specialized form of character evidence that attacks the truthfulness or veracity of a
witness
ii. Five main ways of intrinsic impeaching Witness—must be non-collateral
(important) matters
1. Untruthful Character
2. Prior inconsistent statements (Rule 613)
a. Self-contradiction
3. Bias
a. Witness is influence, corrupted, prejudiced or predisposed to a party
4. Defects in Capacity
a. You must have Perception, memory, narration and sincerity to have
proper capacity
b. Attack a witness by challenging any of the above (Ex. bad eyesight,
amnesia, hearing loss, schizophrenia—anything that would interfere with
capacity
c. May use the fact that he was high or drunk to impeach
5. Contradiction
a. Examining attorney disputes the witnesses testimony about a fact; fact
need not be dispositive or important, simply shows they got it wrong
b. Shows the person is not a good truth-teller
6. Criminal convictions (Rule 609)
a. Someone convicted of certain crimes is less likely to tell the truth and is
less believable
iii. Intrinsic v. Extrinsic impeachment
1. Intrinsic evidence is “from the witness’ own mouth”—“Didn’t you do…” “Don’t
you owe…”—done on cross-examination
2. Extrinsic evidence depends on a witness other than the one on the stand or an
outside document—can even be the transcript of a deposition
3. Used to identify collateral matter or collateral issue
4. All types of impeachment can use intrinsic evidence; extrinsic evidence is held to
a higher standard because it can be a waste of time and distraction
5. Collateral Issue Rule
a. Extrinsic evidence has to go to opinion or reputation or has to go to an
issue in the case, can’t go just to the untruthfulness of witness
b. Not collateral: Important issues in the case that are appropriate for
extrinsic evidence
i. Bias
ii. Testimonial Capacity
iii. A fact in issue
iv. Proof of conviction
v. Reputation or opinion evidence about the truthfulness of another
witness
a. Rule 607. Who May Impeach: The creditability of a witness may be attacked by any party.
b. Rule 608. Evidence of Character and Conduct of Witness
iv. (a) Opinion and Reputation Evidence: The creditability of a witness may be attacked
based on opinion or reputation, but 1) The evidence may refer only to character for
truthfulness or untruthfulness, and 2) evidence of truthful character is admissible only
after the character of the witness for truthfulness has been attacked by opinion or
reputation evidence
1. Extrinsic impeachment—if witness/defendant take the stand they are
automatically subject to this even if they have not said they are truthful
2. W1 may be impeached by W2’s opinion that he is a liar or that W1 has bad
reputation for truthfulness
3. Can only put on evidence of truthfulness if their credibility has been attacked—no
bolstering
4. No specific instances of untruthfulness are allowed unless on crossexamination
5. Only acts of truthfulness, not acts of violence, speeding, bankruptcy, etc.
6. Can challenge on cross-examination or by calling other witness to provide
evidence
v. (b) Specific Instances of Conduct: Specific instances of the conduct of a witness, for the
purpose of proving truthfulness, other than conviction of a crime, may not be proved by
extrinsic evidence. The conduct may be inquired into at the discretion of the court 1)
concerning the witness’ character for truthfulness, or 2) concerning the character for
truthfulness of another witness as to which character the witness being cross-examined
has testified
1. Prior bad acts: limited to specific acts of the witness that are probative for
truthfulness (acts involving fraud or dishonesty)—no prior conviction required
2. If witness denies it then the inquiry is over (jury must determine who is right)
because no extrinsic evidence allowed
a. Extrinsic evidence depends on something other than a witness’ answer
3. Attorney must have a good faith basis for believing the witness committed the act
4. May inquire about the bad act, but not consequences (arrest, conviction.
c. Rule 609. Impeachment by Evidence of Conviction of Crime
vi. (a) General Rule: Evidence that a witness other than the accused has been convicted of
a crime shall be admitted subject to Rule 403 if the crime was punishable by death or
imprisonment in excess of one year (felony) under the law under which the witness was
convicted; evidence that a witness has been convicted of a crime shall be admitted if it
involved dishonesty regardless of punishment (crimen falsi)
1. If it involved dishonesty or false statements it is always admissible (fraud,
perjury, forgery, etc.)—not subject to 403 objection even if it is strongly
prejudicial
2. Favor admissibility if for impeachment, not defendant
3. Evidence of felonies may be admitted subject to 403
a. Assessing degree of prejudice of felony:
i. If the crime is probative of truthfulness or honesty
ii. Nearness or remoteness in time to the former conviction
iii. Whether the crime is the same or similar to the present charge
iv. The effect of the prior conviction on D’s willingness to testify
vii. (b) Time Limit: Evidence of a conviction is not admissible if more than 10 years has
elapsed since the date of conviction or release from confinement, whichever is later,
unless the probative value of the conviction outweighs the prejudicial effect (then it can
be admitted if more than 10 years) and the proponent gives the other side sufficient
notice and opportunity to contest the evidence
viii. (c) Effect of Pardon: It is not admissible if the conviction has been subject to a pardon
and they have not been convicted of another crime
ix. (d) Juvenile Adjudication: Evidence of a juvenile crime is generally not admissible
unless it may be admissible to attack the credibility of an adult and it is necessary for a
fair determination of guilt or innocence
x. (e) Pendency of Appeal: A pending appeal does not render evidence of a conviction
inadmissible
d. Rule 610. Religious Beliefs or Opinions: Evidence of the religious beliefs are not admissible to
show that the witness’ credibility is impaired or enhanced
e. Rule 611. Mode and Order of Interrogation and Presentation
xi. Control by Court: The court will retain reasonable control over the interrogation to 1)
make it effective for the ascertainment of the truth, 2) avoid needless consumption of time
and 3) protect witnesses from harassment
xii. Scope of Cross-Examination: Cross-examination should be limited to the subject
matter of the direct examination and matters affecting the credibility. The court may
allow additional matters.
xiii. Leading Questions: Leading questions should not be used on the direct examination of
a witness except as may be necessary to develop the witness’ testimony. They should be
allowed on cross-examination. When a party calls a hostile witness or adverse party the
interrogation may include leading questions
1. Leading questions suggest an answer; “yes or no” questions are often leading
2. Components of Direct Examination:
a. Background
b. Setting the schene
c. Action
xiv. Common Objections
1. Leading question
2. Asked and Answered: questions that the witness has already been asked and then
answered
3. Compound Questions: questions that incorporate two or more questions
4. Questions Assuming Facts not in evidence:
5. Argumentative: Engage the witness in an improper argument
6. Questions calling for speculation
7. Non-responsive answer
8. Narrative
f. Rule 612. Writing Used to Refresh Memory: If the witness uses a writing to refresh their
memory either while testifying or before testifying, if the court determines it is necessary in the
interests of justice, an adverse party is entitled to have the writing produced at a hearing and to
cross-examine the witness thereon and introduce it into evidence. If it is claimed that the writing
contains matters not related to the subject of the testimony, the court will examine it in camera,
excise the irrelevant portions and withheld unless it must go to the appellate court
a. Refreshing a witness’ memory usually occurs on direct, but can occur on cross to attack a
witness’ purported memory loss (impeachment)
b. General Rule: If the witness’ memory is hazy any item (picture, document, weapon,
stuffed bear) regardless of authenticity or admissibility can be shown witness to refresh
recollection—“present recollection refreshed”
i. The item show is not evidence, merely a stimulus to produce evidence
ii. If the item shown is a document and the court determines the witness simply read
from it then the court can strike the testimony
c. Cross examiner may examine the document and use any part of it during cross
examination
d. If you refresh you get higher quality evidence, but a presumption that you might have
other memory lapses
g. Rule 613. Prior Statements of Witnesses:
i. Requires two statements—one during the trial and one before it that are
inconsistent
ii. “I don’t remember” is not a statement unless it was made in bad faith
iii. Witness must be given a chance to deny or explain the situation
xv. (a) Examining witness concerning prior statement: In examining a witness concerning
a prior statement made by the witness 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
1. Don’t need to actually show them the evidence of their previous statement (and
ask “did you say this”) unless requested by opposing counsel
xvi. (b) Extrinsic evidence of prior inconsistent statement of witness: Extrinsic evidence of
a prior inconsistent statement by a witness is not admissible unless the witness is afforded
an opportunity to explain or deny the same and the opposite party is afforded an
opportunity to interrogate the witness thereon.
1. This does not apply to admissions of a party-opponent as defined in Rule
801(d)(2)
2. Not trying to show which statement is right and which is wrong, simply showing
they don’t consistently tell the truth
h. Rule 614. Calling and Interrogation of Witnesses by Court
xvii. (a) Calling by court: The court may on its own motion or at the suggestion of a party,
call witnesses and all parties are entitled to cross-examine
xviii. (b) Interrogation by court: The court may interrogate witnesses
xix. (c) Objections: Objections to the calling of witnesses by the court may be made at the
time or at the next available opportunity when the jury is not present
i. Rule 615. Exclusion of Witnesses: At the request of a party the court shall order witnesses
excluded so that they cannot hear the testimony of other witnesses and it may make the order of
its own motion. This does not authorize exclusion of:
xx. A natural person who is a party to the case
1. If they could be excluded it would raise issues of confrontation
xxi. An officer or employee of a party which is not a natural person designated as its
representative by its attorney
xxii. A person whose presence is shown by a party to be essential to the presentation of the
party’s cause
xxiii. A person authorized by statute to be present
VIII. The Quasi-Privileges—Exclusions of Relevant Evidence
a. Exclusionary evidence rules justified in two ways:
i. The evidence if admitted will mislead the jury or otherwise impede an accurate and
efficient search for the truth
ii. Exclusion of the evidence will promote some public policy that has little to do with the
truth
b. Core concepts
i. Admissibility turns on the purpose for which it is offered
ii. Admissibility requires a foundation for the evidence offered
iii. Evidence rules sometimes serve purposes other than the pursuit of truth
c. Rule 407. Subsequent Remedial Measures: When after an injury or harm, measures are taken
that, had they been taken before the accident, would have made the harm less likely to occur,
evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a
defect in a product or a need for a warning. This rule does not require the exclusion of evidence
of subsequent measures when offered for another reason such as proving ownership, control,
feasibility or impeachment
i. The conduct is not in fact an admission/indication of culpability—cannot be offered for
negligence, culpable conduct, product defect
ii. Can include repairs, installation of safety devices, firing, etc.
iii. Public policy—encourages people to take measures to promote safety or help others
iv. Can be used for purposes other than showing negligence (Ex. rebut the claim of
defendant that there was no safer way to handle the situation or defendant claims he did
not own or control property involved in the accident
d. Rule 408. Compromise and Offers to Compromise: Evidence of 1) furnishing or offering or
promising to furnish or 2) accepting or offering or promising to accept a valuable consideration
in compromising a claim which was disputed as to validity or amount, is not admissible to prove
liability or invalidity of a claim. Evidence of conduct or statements made in negotiations is not
admissible.
i. Evidence offered in negotiations that is otherwise discoverable can be admitted
ii. The evidence need not be excluded when offered for another purpose, such as proving a
bias or prejudice of a witness or evidence of effort to obstruct a criminal investigation
iii. Settlements: May not be admitted that person offered to settle claim unless used to prove
issues other than claim (bias)—this rule encourages negotiation and compromise
1. Practical Purpose: people may offer small amount simply to make nuisance go
away even if they don’t believe they’re at fault
IX.
iv. Guilty Pleas: D’s offer to plead guilty (whether rejected or withdrawn) may not be
shown to prove that D is guilty –the offer and all other statements made in the course of
plea discussion are inadmissible in criminal or subsequent criminal case
v. Exceptions: If D uses statements from negotiations and fairness requires prosecutor to
complete the story; statements made under oath in the course of negotiations
e. Rule 409. Payment of Medical and Similar Expenses: Evidence of furnishing or offering or
promising to pay medical, hospital or similar expenses is not admissible to prove liability for the
injury.
i. May be used to show ownership, control, relationship…
ii. The evidence from Rules 408, 409 and 410 are irrelevant because the offers may have
been made from sympathy or desires for peace rather than concession of weakness
f. Rule 410. Inadmissibility of Pleas: Evidence of the following is not admissible in any civil or
criminal against the defendant who made the plea or was a participant in plea discussions:
i. A guilty plea that was later withdrawn
ii. A plea of nolo contendere
iii. Any statement made in the course of the court proceedings of such a plea
iv. Any statement made in the court of plea discussions with an attorney for the prosecuting
authority that do not result in a guilty plea or do result in a guilty plea that is later
withdrawn
1. Such a statement is admissible when another statement made in the course of the
same plea or plea negotiation is introduced and the statement must be considered
with it
2. Such a statement is admissible for perjury or false statement if the statement was
made under oath
g. Rule 411. Liability Insurance: Evidence that a person was or was not insured against liability
is not admissible upon the issue of whether the person acted negligently or otherwise wrongfully
i. Such evidence is allowed when offered for another purpose (ex. proof of agency,
ownership, control, or bias or prejudice)
Character and Habit Evidence
a. Rule 404. Character Evidence not Admissible to Prove Conduct: Evidence of a person’s
character or a trait of character is in general not admissible for the purpose of proving action
in conformity therewith on a particular occasion, except:
1. *None allowed in civil case unless it goes to truthfulness of a witness
2. No evidence of Defendant’s character comes in until he opens the door either by
introducing evidence on his own behalf or attacking the victim’s character
3. Optimistic view of people—can’t assume because they did something before
they’ll do it again
ii. Exceptions
1. Character of Accused: Evidence of a pertinent trait of character offered by
defendant or by the prosecution to rebut the accused’s evidence; or if the accused
alleges that the victim has a character trait under Rule 404(a)(2), the prosecution
can admit evidence that the accused has the same character trait
2. Character of Victim: Evidence of a pertinent character trait of the victim
offered by the accused or by the prosecution to rebut the same, or evidence of
peacefulness of alleged victim by the prosecution in a homicide case where the
defendant tried to claim self-defense (prove that the defendant was the aggressor)
3. Character of Witness: Evidence of the character of a witness under Rules 607,
608, 609
iii. Other Crimes, Wrong or Acts: Evidence of other crimes, wrongs or acts is not
admissible to prove character of a person to show conformity therewith (just because
they did it before doesn’t mean they did it this time). It may be admissible as: 1) Proof of
motive, 2) opportunity, 3) intent, 4) opportunity, 5) preparation, 5) plan, 6) knowledge, 7)
identity, provided that upon request of the accused the prosecution shall provide
reasonable notice before the trial or during the trial of the general nature of the evidence
it intends to use
1. Can only admit to prove something other than propensity; must show that the
chain of reasoning does not focus on defendant’s general criminal propensities
2. Sufficient evidence must be shown that a reasonable jury could determine by
preponderance of the evidence that a prior act occurred—conviction is sufficient
3. Non-Character other purposes:
a. Intent: show that the act was not done innocently (ex. D claims he
poisoned a person by mistake. P offers evidence that this is D’s third
accidental poisoning—not propensity, but that he has an intention of doing
it).
i. Doctrine of Objective Chances: The repeated occurrence of an
event is so unlike as to render improbable the claim that the events
happened mistakenly or accidentally
ii. Shows intent to commit an act
b. Motive: Existence of another act provides motive for crime charged (ex.
Homicide victim was witness at D’s previous murder; showing attacks on
other victims to prove hate or drug addition so he needs money)
c. Knowledge: (ex. in a prosecution for knowingly passing counterfeit
currency, evidence of prior conviction may show knowledge that it was
fake)
d. Common Scheme or Plan: one crime is predicated on another (ex. bomb
police station to distract from bank robbery or MO (serial rapist/murderer)
i. Test: each crime should be an integral part of an overarching plan
conceived and executed by the defendant
ii. Signature traits for the crimes—characteristics of the crime are
unusual and distinctive as to be a signature
e. Opportunity: Uncharged misconduct to show D had the opportunity to
commit the crime (D had previously stolen a key to the premises that were
later robbed)
i. D had 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
f. Preparation: often used to show identity or intent (Identity: P may show
that D stole a vehicle to use as a getaway car for charged crime; Intent: D
broke into a gun store and stole ammunition for a crime she claims had no
premeditation)
iv. Character evidence is offered for three reasons:
1. To show that a person has a propensity to act in a particular manner, so they
likely acted in conformity with that propensity here
2. To directly prove a person’s character trait when it is an element of the cause of
action or claim (Character “In issue”—his character is an essential element of the
case)
X.
3. Purposes other than to show character trait—prove motive, intent, plan, common
scheme
v. Character v. Creditability Evidence—credibility evidence is special type of character
evidence used to accredit or discredit a witness
vi. When assessing 404’s ban on propensity evidence, ask:
1. Is the sole relevance based on the idea that “he did it before, he’ll do it again”?
2. If yes, then look at exceptions and then decide
vii. Act v. Mental Propensity: The literal language bars evidence of character or trait to
prove action in conformity. Action implies “acts” not mental states. You can show they
had a mental state in conformity with a crime on a particular occassion
b. Rule 405. Methods of Proving Character
i. Reputation or Opinion: In all cases in which evidence of character or trait of a person
is admissible, proof may be made by testimony as to reputation or in the form of an
opinion (personal impression). Cross-examination can look at specific instance of
conduct.
ii. Specific Instances of Conduct: In cases in which character or a trait is an essential
element of a charge, claim or defense, proof may also be made of specific instances of
that person’s conduct.
1. To directly prove a person’s character trait when it is an element of the cause of
action or claim (Character “In issue”—his character is an essential element of
the case)
a. Defamation
b. Entrapment
c. Negligent entrustment/hiring
d. Seduction
2. Proof of character in issue can proven with reputation, opinion or specific
character
Exceptions to Rule 404(a) Propensity Ban
a. Rule 412. Relevance of Alleged Sexual Predisposition in Sex Offense Cases
i. Evidence generally inadmissible: Not admissible in any civil or criminal case involving
sexual misconduct: 1) Evidence offered to prove that an alleged victim engaged in other
sexual behavior; 2) evidence offered to prove any alleged victim’s sexual predisposition
1. Sexual predispositions include pregnancy, abortion, fantasies, birth control
2. *Dress is pertinent to welcomness even though it violates the Rules
3. Consent one time does not imply consent later
ii. Exceptions
1. In a criminal case the following evidence is admissible if otherwise admissible in
the rules:
a. Evidence of specific instances of sexual behavior by the victim offered to
prove that a person other than the accused was the source of seamen,
injury or other evidence
b. Evidence of specific instances of previous sexual behavior of the victim
with the accused to prove consent
c. Evidence the exclusion of which would violate a constitutional right
i. This is highly prejudicial evidence, so must be of great probative
value to overcome
ii. Reputation/Opinion evidence excluded, must be specific acts
2. In a civil case the following evidence if admissible
XI.
a. Evidence offered to prove the sexual behavior or sexual predisposition of
any alleged victim is admissible if it is otherwise admissible and its
probative value outweighs the danger of harm to any victim or unfair
prejudice
b. Evidence of an alleged victim’s reputation is admissible only if placed in
controversy by the alleged victim
i. Use 403 balancing test in civil cases to determine if it should be
admitted
iii. Procedure to determine admissibility
1. Party intending to offer evidence must:
a. File a written motion at least 14 days before trial describing the evidence
and stating the purpose for which it is offered
b. Serve the motion on all parties and notify alleged victim
2. Before admitting evidence the court must hold a hearing in camera and afford the
victim and parties a right to attend and be heard
b. Rule 406. Habit; Routine Practice: Evidence of the habit of a person or of the routine practice
of an organization, whether corroborated or not, is relevant to prove that the conduct of the
person was in conformity with the habit or routine practice.
i. Elements of Habit:
1. Specific behavior
2. Regularity/Frequency
3. Automatic response
ii. Someone’s response to a repeated specific situation—semi-automatic
iii. Difference from character evidence:
1. Evidence indicates that the behavior occurs with frequency and regularity
2. Evidence offers specificity about the behavior’s occurrence
3. Character refers to a generalized description of a person’s disposition or of
general traits (honesty, temperance, peacefulness)
4. Habit is someone’s response to a repeated specific type of conduct; semiautomatic
behavior
c. Rule 413. Evidence of Similar Crimes in Sexual Assault Cases
i. In a criminal case in which the defendant is charged with a sexual assault, evidence of
the defendant’s commission of another similar sexual assault is admissible and may be
considered for its bearing on any matter to which it is relevant
ii. When the government intends to admit evidence under this rule, it shall disclose evidence
to the defendant including statements of witnesses at least 15 days before trial
iii. The rule shall no be construed to limit the admission or consideration of evidence under
any other rule
iv. Sexual assault is defined as:
1. Any contact, without consent, between defendant and any part of the genitals of
another
2. contact, without consent, of the genitals of a defendant and anyone else
3. Deriving sexual pleasure from infliction of death, injury or pain of another
v. Only time it cannot be used is 403 objection
vi. No time limit as to occurrences
Character Impeachment
a. Rule 608. Evidence of Character and Conduct of Witness
XII.
i. Opinion and reputation evidence of character: The creditability of a witness may be
attacked or supported by evidence in the form of opinion or reputation, but 1) the
evidence may only refer to character for truthfulness or untruthfulness, and 2) evidence
of truthful character is admissible only after the character of a witness for truthfulness
has been attacked by opinion or reputation evidence or otherwise.
ii. Specific Instances of Conduct: Specific instances of the conduct of a witness for the
purpose of attacking or supporting witness’ truthfulness, other than a crime as allowed in
Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion
of court, if probative of truthfulness, be inquired into on cross-examination 1) concerning
the witness’ character for truthfulness or untruthfulness, or 2) concerning the character
for truthfulness of another witness as to which character the witness being crossexamined has testified
iii. The testimony given by the accused or witness relating to character for truthfulness is not
a waiver of privilege against self-incrimination
iv. No conviction is required to prove bad acts
v. Crimes of violence aren’t considered bad as to truthfulness and can’t be admitted
vi. Can only admit evidence about the actual act, conviction and arrest don’t matter—the
credibility of the witness doesn’t hinge on his arrest, but on his action
The Hearsay Rule
a. Rule 801. Definitions
i. Statement: An 1) oral or written assertion or 2) non-verbal conduct of a person if it is
intended by the person as an assertion
1. A statement was made by someone other than the witness on the stand and now
testifying
2. Non-Assertive conduct is not hearsay—this is conduct that is not intended to be
communicative
a. (not a head nod)—not a statement. Not hearsay because less subject to
fabrication than assertive, so more realiable
3. Silence or other non-verbal cues must be intended to represent or “say” something
a. Accepted when:
i. The declarant heard the accusatory statement
ii. The declarant was capable of denying it
iii. Under the circumstances a reasonable person would have denied it
if it were not true
ii. Declarant: A declarant is a person who makes a statement (must be human)
iii. Hearsay: A out of courts statement, offered into evidence to prove the truth of the matter
asserted
1. Out of court means outside this judicial proceeding—pre-trial statements an
depositions are “out-of-court”
2. Offered to show that the factual content of the statement is true
3. Allows declarant an opportunity to cross-examine and prove the statement’s
authenticity
4. Statements not offered for the truth of the matter asserted are relevant simply
because they have been said. Examples include:
a. State of Mind: statements offered to prove either the listeners or
declarant’s state of mind (Ex. “I am the walrus” shows insanity) or
statements to show the effect on the listener (warnings, notice)
b. Impeachment: Prior inconsistent statements—truth is irrelevant, just used
to show they had made inconsistent statements
c. Res gestae: not offered for truth, but simply as background evidence to
“complete the story” of an incident or event
d. Legally operative facts: Statements that create legal obligations or duties,
offered simply to show that the statement was made (defamation,
offer/acceptance, solicitation)
e. Verbal Acts: A category of statements related to operative facts
iv. Hearsay logic: Statements introduced solely on the theory that when a person asserts in
this situation that a fact is true, that fact is more likely to be true
1. Hearsay dangers since the declarant can’t be tested or impeached—crossexamination will allow us to check all of these:
a. Ambiguity: Perhaps his choice of words was improperly understood
b. Insincerity: Perhaps the declarant wasn’t being sincere when he made a
statement
c. Incorrect memory: Perhaps declarant didn’t remember event very well
when he said it
d. Inaccurate perception: Perhaps the declarant didn’t really observe
something very closely but made a statement—he can show that here
2. Value of having witness there:
a. Oath: more likely to tell the truth due to perjury; solemnity of occasion
b. Demeanor: fact-finder can assess sincerity
c. Cross-examination: clarify ambiguities, reveal mistakes
3. ***Approach to hearsay problems:
a. The evidence meets hearsay requirements (out of court statement made for
the truth of the matter)
b. Judge if it is a special prior statement of the witness or admission of partyopponent
c. Judge if it is within on of the hearsay exceptions
b. Rule 802. The Hearsay Rule: Hearsay is not admissible except as provided by these rules.
XIII. Hearsay Exemptions: A statement is not hearsay (***for the test these are considered exceptions to
hearsay, so they are technically hearsay, but they are excepted under the rules) if:
a. Prior Statements by Witnesses
i. Rule 801(d)(1): Prior Statement by Witness
1. **Prior statements are admitted for the truth of the matter asserted, provided the
witness is subject to examination at trial (Availability of witness is required)
a. Sworn prior inconsistent statements of the witness: Admissible for the
truth of the matter asserted I the statements were made under oath and
subject to the penalty of perjury at a prior trial, hearing, deposition or
other qualifying proceeding
b. Prior Consistent Statement: Admissible for truth of the matter asserted if
the statement is offered to rebut a charge of recent contrivance or
fabrication. Need not be under oath, but must have made it before the
motive to fabricate arose
c. Prior Identifications by the Witness: The fact that a witness has made an
identification of another person prior to trial may be admitted at trial for
the truth of the matter asserted—often arises in trials with a line-up or
photo array
2. Trustworthiness not at issue because declarant can testify and is subject to crossexamination
3. Admit declarant’s out of court statement into evidence for the truth of the matter
when they are able to testify at trial subject to cross-examination
b. Party Admissions
i. Rule 801(d)(2). Admission by Party-Opponent
1. The statement is offered against a party and is A) the party’s own statement in
either an individual or representative capacity or B) a statement which the party
has manifested an adoption or belief in its truth or C) a statement by a person
authorized by the party to make a statement concerning the subject or D) a
statement by the party’s agent or servant concerning a matter within the scope of
the agency or employment made during the existence of relationship or
a. This is a powerful way to get around the hearsay rule—basically require
an opposing party to explain their way out of a previous admission
b. Can be
i. Straight admission—Party’s own statement
ii. Adoptive admission—Statement which party has adopted
1. If party doesn’t deny something they would be expect to
deny, then they have adopted the admission (same elements
as non-assertive statement)
2. Under the circumstances, would a reasonable person have
denied it?
iii. Authorize admission—Statement by person authorized by party to
make statement
1.
iv. Employee admission—Statement by party’s agent or servant
within scope of agency or employment
c. Declarants are actual parties here and they are available to testify
ii. Rule 801(d)(2)(E). Co-Conspirator Admissions Rule
1. E) a statement made by a co-conspirator of a party during the course or in
furtherance of the conspiracy.
2. The contents of the statement shall be considered but are not alone sufficient to
establish the declarant’s authority under C, D, or E.
a. Conspiracy:
i. Existence decided by the judge
ii. Preponderance of the evidence standard
iii. Can rely on disputed evidence to prove its existence
iv. Can’t rely entirely on inadmissible evidence to prove
XIV. Hearsay Exceptions: Availability of Declarant Immaterial: The following are not excluded by the
hearsay rule, even though the declarant is available as a witness
a. May use these (the testimony of a percipient witness) because the declarant wouldn’t be good on
the stand
b. Trustworthiness: Exceptions allowed because they are considered to be very trustworthy
statements and require no independent verification
c. Contemporaneous and Excited Utterances
i. Rule 803(1). Present Sense Impression: A statement describing or explaining an event
or condition made while declarant was perceiving the event or condition or immediately
thereafter
d.
e.
f.
g.
h.
1. Observation and statement came simultaneousely
ii. Rule 803(2). Excited Utterance: A statement relating to a startling event or condition
made while the declarant was under the stress of excitement caused by the event or
condition
1. No definitive law on the amount of time that can pass between event and when
stress ends
Rule 803(3). Statement of Presently Existing State of Mind, Feeling or Belief: Statement of
the declarant’s then existing state of mind, emotion, sensation or physical condition (such as
intent, motive, plan, design, bodily health) but not including a statement of memory or belief to
prove the fact remembered or believed unless it relates to a declarant’s will
i. Cannot be a backward looking/memory of your state of mind then
ii. Cannot include a statement that either recalls what your state of mind was earlier or if
you believe something (need to know it or state it as a fact)
iii. Statement of a declarant’s intent to perform a future act is admissible as a state of mind to
prove that the declarant followed through with it (Hillmon Rule)
Rule 803(4). Statements Made for the Purposes of a Medical Diagnosis or Treatment:
Statements made for the purposes of medical diagnosis or treatment and describing medical
history or past or present symptoms, or the inception of the cause or external source thereof as is
reasonable for diagnosis or treatment
i. Cannot admit parts of the statements/facts extraneous required for treatment *Must tie
hearsay to disagnosis/treatment
ii. Includes doctors, nurses, EMT’s, can be parents or relatives if a child who needs
assistance
iii. Can’t admit statements about fault (I.e. “My husband hit me…”—the action, not the
person is relevant)
Rule 803(5). Recorded Recollection; Refreshing Recollection: A memorandum or recording
concerning a matter about which a witness once had knowledge but now has insufficient
recollection to enable the witness to testify fully and accurately, shown to have been made or
adopted when the matter was fresh in the witness’ memory and to reflect knowledge
accurately—it may not be itself entered into evidence as exhibit unless by adverse party but can
be read into it
i. Allowed when no amount of refreshing will allow the witness to testify from present
recollections
ii. Was created or adopted when the witness still had clear recollection of what was going
on
Rule 803(6). Business Records: A memorandum, report, record or data in any form of events,
acts, conditions, opinions or diagnoses made at or near the time by or from information
transmitted by the person with knowledge, if kept in the court of regularly conducted business
activity. Can either be verified by the custodian or certified under Rule 902(11) or (12).
i. Business includes business, institution, profession, occupation and calling of every land
whether or not conducted for profit
ii. Require authentication from custodian or they can be certified
iii. 803(7): The absence of evidence which would usually be kept in the course of business is
admissible unless something shows that it lacks trustworthiness
Rule 803(8). Public Records: Records, reports, statements or data compilations in any form of
public offices or agencies setting forth: A) the activity of the agency, B) matter observed
pursuant to duty imposed by law as to which matter were reported, excluding in criminal cases
matters observed by police officers and other law enforcement, or C) in civil actions and
XV.
proceedings and against the government in criminal cases, factual findings resulting from an
investigation granted by law unless shown to lack trustworthiness
i. “Activities of an office”—(lien, tax records, deeds)
ii. “Matter observed pursuant to duty imposed by law” (rainfall recs, court reporter
transcripts)
iii. Factual findings resulting from an investigation (OSHA, FAA investigation)—can be
opinions based on facts as well
i. Other Exceptions
i. Rule 803(9). Records of Vital Statistics: Records or data compilations in any form of
births, deaths or marriages is the report was made by a public office
ii. Rule 803(13). Family Records: Statements of fact concerning personal or family history
in family bibles, genealogies, charts, engravings on rings, inscriptions on family
portraits, or the like
iii. Rule 803(15). Statements in Documents affecting an interest in property: A statement
contained in a document purporting to establish or affect an interest in property if the
matter stated was relevant to the purpose of the document, unless dealings with the
property since the document was made have been inconsistent with the truth of the
statement
iv. Rule 803(16). Statements in Ancient Documents: Statements in a document in
existence twenty years or more the authenticity of which is established
v. Rule 803(17). Market Reports and Commercial Publications: Market quotes,
tabulations, list, directories or other published compilations generally used and relied
upon by the public or by persons in particular occupations
vi. Rule 803(18): Learned Treaties: Statements contained in treatises or periodical, on a
subject of history, medicine, or other science or art established as a reliable authority. If
admitted it can be read into evidence but may not be received as an exhibit
1. Must show that it is a reliable authroity
Hearsay Exceptions: Declarant Unavailable
a. Certain types of hearsay are admissible only if declarant cannot testify
b. Rule 804(a). Definitions of Unavailability: Unavailability includes situation in which:
i. Declarant is exempted from testifying on the ground of privilege
ii. Declarant refuses testifying concerning the subject matter despite an order of the court
to do so
iii. Testifies to a lack of memory on the subject matter of the declarant’s statement
iv. Is unable to be there or testify because of death or then existing physical or mental
infirmity
v. Is absent from the hearing and the proponent of a statement has been unable to procure
the declarant’s attendance by process or other reasonable means
vi. A declarant is not unavailable if his exemption, refusal, claim of lack of memory,
inability or absence if due to the wrongdoing of the proponent of a statement
1. Refers to the unavailability of the declarant’s testimony rather than the
unavailability of the declarant
2. Declarant must be unavailable to allow the testimony in
c. Rule 804(b)(1). Former Testimony: Testimony given as a witness at another hearing of the
same or a different proceeding or in a deposition taken in the course of the same proceeding if
the party against whom it is offered has an opportunity (no need to actually take it) to direct,
cross or redirect examination
i. The party against whom the statement is offered must have had the same motive in both
earlier and current proceedings
1. What was at stake in previous proceeding
2. Under what conditions was the previous testimony developed
3. In most situations if previous trial was criminal it will suffice in a civil court
unless the civil penalties are higher; most felonies suffice in civil
d. Rule 804(b)(2). Dying Declaration: In a prosecution for homicide or in a civil action or
proceeding, a statement made by a declarant while believing that his death was imminent,
concerning the cause or circumstances of what he believed was his impending death
i. The declarant does not actually have to die
ii. Declarant actually needs to believe he would die
e. Rule 804(b)(3). Statement Against Interest: A statement which was at the time of its making so
far contrary to the declarant’s pecuniary or proprietary interest, or so far as tended to subject
the declarant to civil or criminal liability, or to render invalid a claim by the declarant against
another, that a reasonable person in the declarant’s position would not have made the statement
unless believing it to be true. A statement implicating the declarant in a criminal matter and
i. Examples
1. Pecuniary—Money (I owe you $100)
2. Proprietary—Property (I no longer own Blackacre)
3. Penal—Criminal (I killed X)
4. Civil—(I am responsible for the accident)
ii. Must be adverse to the declarant and the declarant must be aware of that adversity at the
time of making it
iii. If exculpating the accused, you need more corroboration and evidence that suggests he
did not do it
1. Honor among thieves—people may say things to get friends off, so you need
something else to corroborate story
iv. Different than a party admission in three ways
1. Statements against interest require the declarant to be unavailable to testify
2. Statements against interest do not have to be made by parties or their agents
3. Statements against interest must have been against a defendant’s pecuniary,
proprietary, civil or penal interest at the time of the utterance
v. Williamson decided that using the narrowest form of the statement that reflects the party
interest
1. Excludes collateral (related) statements
2. Is the relevant portion integral to the whole?
XVI. Residual Hearsay (Rule 807): A statement not specifically covered by Rule 803 or 804 having
equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule if the
court determines that A) the statement is offered as evidence of a material fact, B) the statement is
more probative on the point for which it is offered than other evidence which the proponent can
procure through reasonable efforts, C) the general purposes of these rules and the interests of
justice will be best served by admitting it. The proponent of the information tell the adverse party of
their intent to use it sufficiently in advance to allow them to prepare to meet it, the intent to offer and
the specific of it, including the name and address of the declarant.
a. Captures the things the things FRE forgot or didn’t anticipate; a catch all
b. Questions to ask:
i. Are there equivalent guarantees of trustworthiness
ii. Is the statement offered as evidence of a material fact (necessity issue)
iii. Is the evidence more probative than other evidence the proponent can procure through
reasonable efforts
iv. Are the general purposes of the rule and interests of justice served by admitting the
evidence
v. Are the general purposes of the rules and interest of justice served by this?
vi. Has notice to the adverse party been given?
XVII. Confrontation Clause (Sixth Amendment): A criminal defendant has the right to be confronted
with the witnesses against him.
a. Allows three things
i. Right to be present at trial
ii. Right to face accuser
iii. Right to cross-examine
b. Crawford v. Washington
i. If a declarant is absent from trial, testimonial evidence cannot be used in a criminal case
unless the defendant has previously had the chance to cross-examine
ii. Only meant to capture government officials; private party discussions rest solely on
hearsay princples
iii. “Testimonial” statements are made under the circumstances where witness would
reaonsably believe that the statement would be available for use at a later trial
(preparation for hearing)
1. Include affidavits, statements given to police officers, courtroom testimony and
depos
XVIII. Lay Opinion Evidence
a. Rule 701. Opinion Testimony by Lay Witness: If the witness is not testifying as an expert the
witness’ testimony in the form of opinions or inferences is limited to those opinions which as A)
rationally based on the perception of the witness and b) helpful to a clear understanding of the
witness’ testimony or determination of the fact at issue and C) not based on scientific, technical
or other specialized knowledge
i. Rationally based on the perception of the witness:
1. The opinion echoes personal knowledge
2. Opinion must be one a reasonable person could draw from the underlying facts
ii. Distinguishes between lay and expert opinion
iii. An objection will often be more helpful if it is supported with an explanation as why the
opinion is not rational or not helpful (calls for expertise, required mix of law and facts;
requires conclusion)
iv. Lay opinion on the ultimate issue are allowed except where the mental state is concerned
v. Easier to get in than expert opinion
vi. Allowed because inferences, conclusions and opinions are not merely the product of
observation, but of the power of reason
vii. “Collective facts”—a shorthand, summary rendition of what the witness perceived—ex. a
smile
viii. Skilled Lay Opinions
1. The admissibility of a skilled lay observer’s testimony turns not on whether most
layperson’s 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
XIX. Expert Opinion Evidence
a. Introduction
1. Experts can offer opinions without personal knowledge while lay witnesses must
generally stick to facts
2. “Helpfulness” goes beyond relevance requiring the testimony assist the jury in
resolving an issue
3. All expert opinions must be based on reliable and valid methods that fit the facts
of the case
4. If the testimony will assist the jury in deciding the facts, an expert can testify
about the ultimate fact questions
5. Can rely on inadmissible hearsay to come up with opinion, must be relevant
6. Experts can be used unless an untrained layman would be qualified to determine
intelligently, without specialized understanding the subject involved in the dispute
ii. Rule 702. Testimony by Experts: If scientific, technical or other specialized knowledge
will assist the trier of fact to understand evidence or determine the fact at issue, a
witness qualified as an expert by knowledge, skill, experience, training or education may
testify in the form of opinion if 1) the testimony is based upon sufficient facts or data, 2)
the testimony is the product of reliable principles or methods and 3) the witness has
applied the principles and methods reliably to the facts
1. Qualities of “Qualified Experts”
a. Experience
b. Publications
c. Acceptance Record
d. Education
e. Honors
f. Licensing
iii. Rule 703. Bases of Opinion Testimony by Experts: The facts or data used by an expert
to form an opinion or inference may be those perceived by or made known to the expert
at or before the hearing. If a type of information reasonably relied upon by experts in
the field, the facts or data need not be admissible (this could be hearsay for example;
*must be relevant though). The facts or data otherwise not admissible shall not be
disclosed to jury unless the probative value will substantially outweigh their prejudicial
value
1. Three Sources of Expert Knowledge
a. Personal Observation
b. Observation in the courtroom
c. Facts made known at or before the trial
iv. Rule 704. Opinion on Ultimate Issue:
1. Except as provided in b), testimony in the form of an opinion or inference
otherwise admissible is not objectionable because it embraced an ultimate issue
to be decided by the trier of fact
2. No expert witness testifying with respect to the mental state or condition of a
defendant in a criminal case may state an opinion or other inference as to
whether the defendant did or did not have the mental state or condition
constituting an element of the crime charged or of a defense thereto. Such
ultimate issues are matters for the trier of fact alone
a. Grounds for objecting:
i. Lay witness not qualified, opinion beyond witness’ expertise
b. Expert can testify that accused has a mental defect and describe the effects
and characteristics of it, just can’t give final answer whether it was
element of crime or defense
c. Change from common law because it was often difficult to distinguish
“ultimate” issues from others; juries got more credit for not being guillable
and automatically following the expert and often unreasonably difficult for
experts to contort their answers
v. Rule 705. Disclosure of Facts or Data Underlying Expert Opinion: The expert may
testify in terms of opinion or inference and give reasons therefore without first testifying
to the underlying facts or data unless the court requires otherwise. The expert may in
any event be required to disclose the underlying facts or data on cross-examination.
b. Scientific Evidence: Daubert is standard, but Frye still used in some states. Rule 403 (chance the
jury will be mislead) is still in effect
i. The Frye Test: Requires that novel evidence be generally accepted in the particular
scientific field in order to be admissible
1. Required due to fears that expert science opinions have an “aura of infallibility”
so a jury may not independently evaluate it and judges won’t know enough about
it to guide the jury
2. Look at the validity and reliability of the science
a. Validity: Is the test accurate and does it measure what it is supposed to
measure
b. Reliability: Does this test consistently yield the same results?
3. May also be rejected because it is not relevant, expert testimony is not needed,
based on speculative data, based on questionable theories
ii. The Daubert Test: Used to determine admissibility of scientific evidence; factors:
1. whether the theory or technique has been tested
2. whether the theory or technique has been subjected to peer review and
publication
3. the known or potential rate of error of the particular theory or technique and
whether means exist for controlling its operation
4. the extent to which the theory has been accepted (Frye)
5. whether the expert has done research independent of litigation
6. whether the expert has accounted for other obvious explanation
c. Daubert has been expanded to nearly all expert testimony—“technical and other specialized
knowledge” rather than just science
Keys:
1. Steps in evidence:
a. Is it relevant? (threshold)
b. If it is relevant, is it more probative value substantially outweighed by its prejudicial effect?
c. Does this evidence relate to character, other crimes or wrongs, acts or habits?
2. Pay close attention to the characters and their part of the problem
3. Pay close attention to the question asked