Evidence Outline
Prof. Kuhns, Fall 2001
I.
Relevancy and Probative Value
A. FRE 401. Definition of “Relevant Evidence”
evidence having any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be w/out the evid.
1. Elements of 401 Relevance
a. is the evidence probative? Does it help a little (any tendency)?
1. a common sense question
2. very little required to satisfy this element
b. proposition that the evidence is trying to prove must be of consequence (i.e. material)
to an essential element of the case.
1. a fact of consequence comes from the substantive law at issue
2. Notion of relevance something that cannot be determined w/ litmus test certainty
a. inherently imprecise
B. FRE 402. All Irrelevant evidence inadmissible. Relevant evidence is admissible, except if
subject to some other rule (an exclusionary rule)
C. FRE 403. Judicial discretion to exclude relevant evidence
1. Probative Value (“ProbV”)
a. the persuasive effect that the evid. will likely have on the jury’s thinking about the fact
of consequence it is offered to prove, measured by the strength of the inference
b. expressed in general terms, like “highly,” “minimally”
2. 403 Dangers
a. Factual Accuracy
1. Unfair prejudice: jury’s use of evidence improperly (unfairly) to decide a case
a. risk jury will decide on irrelevant grounds (bad person prejudice) and ignore
reasonable doubt; or
b. may use in relevant, but impermissible manner, i.e. past bad acts to show char.
2. Confusion of the issues
a. risk jury will focus too much attention on a collateral issue
b. risk jury might think that it is supposed to focus on an altogether different issue
3. Misleading the jury
a. jury may give evidence more weight than it deserves/ overestimate probative
value of the evidence, i.e., may treat video reenactments as documentations.
b. Efficiency Concerns – by self, rarely enough to keep evidence out and never grounds
for reversal b/c no prejudice
4. Undue delay
a. ex: if continuance required for production of evidence or to transport the jury
to view the scene of the crime, tr. will be delayed; judge must balance
b. ex: extension of time limit to present rebuttal evid decided under 403
5. Waste of Time
a. ex: evid. offered to prove stipulated, collateral, or background facts
6. Needless presentation of cumulative evidence
a. danger includes expenditure of trial time on repetitive testimony, plus the risk
of losing the attention of the jury
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b. degree to which evid is repetitive v. reasons why repetition may be needed (i.e.
centrality of the f.o.c.; fact highly disputed; ProbV of the corroboration itself)
3. Probative Value Substantially Outweighed by One of the 403 Dangers
a. balancing test; imprecise b/c can’t quantify
b. “substantially outweighs” standard high: pretty darn sure evid more bad than good.
-- Favors Admissibility!
c. App. cts usually defer to tr. ct. decision on 403 objections
1. Unusual Case: Hitt. Reversed, held prejudice of showing picture of guns (assume
guns are defendants) outweighed its probative value (cleanliness of inside of gun).
2. McQueeny, reversed, held evid that P suborned perjury of a proffered witness is
admissible as evid that P’s claim is unfounded even though witness didn’t testify
a. 401 issue: evid of tampering always relevant; but weigh against 403 dangers
b. here, ct. never engaged in proper 403 balance b/c understand probative value,
i.e., relevant for subornation of perjury
D. Relevancy Conditioned on Fact
1. FRE 104(b).
a. “evidence sufficient to support a finding of the fulfillment of the condition” is a
directed verdict standard: evid from which a jury could reasonably find the conditional
fact by a preponderance of the evidence (more probably true than not).
1. judge does not decide credibility, i.e. if the condition exists.
2. evid to the contrary is not considered.
b. Inherent conflict between 401 and 104(b) standards
1. 104(b) requires judge to apply higher threshold to relevance question than 401
a. ex: evidence of warning given relevant under 401, but under 1.4(b) would also
have to produce evid. sufficient to support finding of P hearing the warning.
b. may exclude evid that is relevant under 401 and might be useful to jury
2. no evid is relevant in the abstract, but is conditioned upon relation of one evid. fact to
another; therefore, must make some inferences
a. which standard is applied depends on what obj. is made
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II.
Foundational Requirements
A. Generally
1. universal principle of evid law: no evid is admissible until it is first shown to be what its
proponent claims that it is.
2. universal requirement: laying the foundation for proof
a. proponent must present an adequate foundation that shows that the item of evid is
what the proponent claims it to be
b. if don’t, opposing counsel may obj. and evid excluded.
B. Laying Foundation for Witnesses
1. FRE 601. Everyone competent to be a witness except as otherwise provided in FRE.
a. changed C.L. rule of competency that excluded certain categories of persons from
testifying: spouses, parties to the dispute, atheists, felons, children, and mentally ill.
b. A.C. Note: “no mental or moral qualifications for testifying as a witness are specified.
1. 603 abolishes the moral qualification of taking a religious oath
2. what if mental incapacity to testifying or understanding oath?
a. Two approaches
1. 601 regulates status of person to testify, not their ability; witness can be
excluded under 403, 603 (oath requirement), or 602 (personal knowledge)
2. under 601, tr. ct. retains the complete discretion that it had under C.L. to
decide whether an indiv. is competent to testify.
b. Under either view, tr. ct. may need to hold hearing on the competency issue
1. judge authority to hold hearing under 104(c)
2. decide prelim. quest. of incompetence under 104(a) by a prepond. of evid.
c. witness status is still relevant to impeach the credibility of the witness
2. FRE 602. Witness may not testify to a matter unless evid is introduced sufficient to
support a finding that the witness has personal knowledge of the matter.
a. personal knowledge can be based on any of the senses
b. 104(b) standard: witness’s own assertion of person knowledge will suffice
3. FRE 603. Oath and affirmation to testify truthfully
4. FRE 605 and 606. Incompetency of judge and jurors to testify in the case b/f them.
C. Authentication and Identification of Exhibits
1. FRE 901.
(a) Judge decides if evid sufficient to support a finding that the exhibit in quest. is what
its proponent claims (specialized conditional relevancy w/ same 104(b) standard)
(b) illust. of the kinds of foundation facts the drafters believe should satisfy the standard
-- just examples; anyway that satisfies 901(a) is acceptable.
c. Types of Evidence
1. Real Evidence (tangible item that played some role in the event that are in dispute)
a. I.D. through readily identifiable characteristic or through chain of custody
b. Unchanged condition established through chain of custody, when condition of
the item is an important as its identity (fingerprints on weapon, drugs)
1. complete chain of custody need not always be shown to satisfy 901(a)
c. also subject to exclusion on 403 grounds
2. Demonstrative Evid. (reproductions or depictions of items connected to litigation)
a. relevant only if helpful to the jury in understanding the litigated event.
b. typically identified by testimony of person with knowledge of its content and
the connection of that content to the case
c. in-court demonstrations and recorded simulations must be sufficiently similar
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to litigated event so as to provide a fair comparison and not mislead the jury
d. also subject to exclusion on 403 grounds
3. Written documents
a. usually identified by testimony the identifies the author or the source of the doc
1. observation of the creation or execution of a doc., i.d. based on familiarity
w/ handwriting, testimony of custodian about how doc stored and retrieved
b. Written docs that are self-authenticating
1. FRE 902: some written documents can be admitted on their appearance
alone, w/out extrinsic evid. of authenticity
2. A.C. Note: opponent may still dispute the authenticity (phony, forged, etc.)
4. Recordings
a. may be authenticated by a percipient witness that can testify that the recording
is a fair and accurate record of the real world event.
b. if no percipient witness, 901 may require proof of the recording process and
the chain of custody of the recording itself.
D. Judicial Determination of Preliminary Questions under FRE 104
1. FRE 104. general rule on judicial decision-making about foundational issues
a. same standard applies in civil and criminal cases (preponderance of the evidence)
b. when existence of a prelim fact is disputed, both sides may present evid to the ct.
c. these issues can be decided b/f trial.
2. FRE 104(a): Ct. decides preliminary questions, under a preponderance of evid. standard.
a. judge may consider evid not be admissible under FRE, but not privileged evid.
b. judge either admits or excludes, doesn’t inform jury about decision on prelim. quest and
jury cannot redecide the issue
c. most preliminary quest. of fact raised by the application of the rules of evid. to an
offered item of evid are for judge to decide under 104(a)
1. applies to qualifications of witnesses (FRE 601, 603, 702)
2. applies to application of rules of privilege (FRE 501)
3. also, character, hearsay, and impeachment
3. FRE 104(b): Ct. screens the preliminary quest. for the jury; decides if evid. sufficient to
support a jury finding that the preliminary fact is true; judge doesn’t decide if true
a. judge may only consider evid. that would be admissible to the jury.
b. judge either admits or excludes, doesn’t inform jury about determination of sufficiency
c. opponent may present truth of the prelim. fact; jury will decide the preliminary fact
d. applies to authentication (Rule 901), witness first hand knowledge (602)
E. The Best Evidence Rule
1. specialized foundational requirement for writings, recordings, and photographs; intended to
increase the reliability, and thus ProbV of the evid
2. FRE 1001, 1002, 1003, 1004, 1006, and 1007
a. creates a preference for an original doc, which can be excused if the absence of the
original is explain and justified and “secondary” evid may be admitted
b. only applies to evid. that the proponent is offering to prove its own content
3. FRE 1008. Functions of Court and Jury
a. most prelim quest of fact under the best evid. rule are for the judge under 104(a)
b. Three specific issues which must go to the jury if 104(b) standard met
1. whether the asserted writing ever existed
2. whether another writing, recording, or photo produced at the trial is the original
3. whether other evid of contents correctly reflects the contents.
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III.
The Relevance Rules (Exclusionary Rules)
A. Evidence of Character Offered to Show Action in Conformity with that Character
1. FRE 404.
a. 404(a): prohibits the use of character evidence to show action in conformity w/
character except in three situations
(1) Evid. of a pertinent character trait of D, offered by D or by the Pros. to rebut the
same, or if evid of a character trait of V is offered by D and admitted under 404(a)(2),
evid of the same character trait of D offered by Pros.
a. Criminal D may always open the door to character evid issue by introducing
evid of D’s own character; only way char. of D introduced is by D opening door
b. Pros. has right to rebut D’s character evidence of D (and V) by offering own char.
evid of D.
(2) Evid. of a pertinent character trait of V offered by D, or by the Pros. to rebut the
same, or evidence of a char. trait of peacefulness of V offered by the Pros. in a
homicide case to rebut evid that V was the 1st aggressor.
a. Criminal D free to open door to char. issue by introducing evid. of V’s char.
b. Pros. has right to respond to D’s char. evid. of V.
c. only time Pros. has right to open door to char. evid. issue is with evid. of V’s
peacefulness to rebut evid that V was the 1st aggressor
(3) Evid. of the char. of a witness, as provided in rules 607, 608, and 609 (impeachment)
a. except in the impeachment context, FRE don’t permit char. evid to show action
in conformity w/ character in civil actions.
b. Min. C.L. rule permits civil D to open door to char. evid if civil action based on
culpable conduct proscribed by the criminal law (some Fed. Cir. Allow this rule)
b. 404(b): Evid. of specific acts not admissible to prove char. in order to show action in
conformity with character.
1. but, it is admissible for other purposes; specific acts often come in to show something
other than action in conformity w/ character.
2. Exceptions to the prohibition against the use of specific acts to show a.i.c.
a. FRE 608(b) and 609 explicitly authorize the use of specific acts for this purpose
b. FRE 413-415 appeal to contemplate the use of specific acts for this purpose
c. When char. evid is admissible under 404, it must relate to a pertinent char. trait
2. FRE 405(a). Methods of Proving Character
a. Where evid of char is admissible under 404(a), proof may be made by reputation or
opinion testimony; on cross, may inquire into relevant specific instances of conduct.
1. no foundation requirements for char. witnesses in FRE
2. FRE 403 permits judge to exclude testimony that is marginally probative b/c the
witness does not have much of a basis for knowing or knowing about the person
3. risk that opinion testimony could evolve into specific acts testimony
a. A.C. Note: use of opinion testimony to prove char to show a.i.c. should not turn
into litigation about specific acts upon which the opinion may be based.
4. may cross-exam the char witness about relevant specific acts to test witness’s
credibility as a reputation witness (impeach witness), not to show a.i.c. w/ char.
a. party calling the char witness is entitled to a limiting instruction under FRE 105
b. Possible 403 danger of unfair prejudice, but most prejudice quest also most
probative of witness’s knowledge; cts usually allow where directly related
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c. specific acts must be related to witness testimony and be ones the witness is likely
to have known or heard; if not, may be excluded under 403 for low prob value.
d. cross-examiner must reasonably believe that the act occurred
B. Character as an Essential Element of a Claim or Defense
1. FRE 405(b). If char. of a person is an essential element of a claim or defense, proof of
specific instances of that person’s conduct may be made.
a. When the substantive law makes the character of a person an essential element of a claim
or defense, party w/ initial burden of producing evid. will have to introduce char. evid in
order to avoid a directed verdict.
b. all types of character evid. (reputation, opinion, and specific acts) are potentially
admissible when character is an essential element of a claim
c. only limitation is 403;
a. significant countervailing 403 concerns to admitting specific acts if the character
is general: prejudicial, waste of time to litigate details,
b. if char. trait is specific, should be preference for specific acts b/c high prob. value
C. Evidence of Specific (Bad) Acts Not Offered to Prove a Person’s Character
1. FRE 404(b) 2nd Sentence. Evid of specific acts may be admissible for other purposes, i.e.
motive, opportunity, preparation, plan, knowledge, identity, or absence of mistake
a. Three requirements
1. proponent must articulate some non-character purpose for which the specific acts
evid. is relevant.
2. proponent must introduce evid that the person did in fact commit the act
a. Huddleston (S.Ct.), question of the person’s culpable involvement is one of
conditional relevance governed by 104(b).
b. some state courts continue to apply 104(a) type standard (protects crim. D)
c. also, anti-coincidence theory of relevance where multiple similar acts
3. proponent must be prepared to respond to a likely 403 obj. to the evid.
a. factors for court to consider in making the 403 balancing decision
1. how probative the non-char purpose is of some contested issue in the case
2. how probative the specific act is to prove the non-char purpose
3. how probative the evid is to establish that the act occurred
a. should be assessed in terms of the need for the evid in light of other evid
4. how close in time the act is to the event that it is offered to prove
5. how much of a risk of unfair prejudice would result from intro. of the evid
6. how effective a limiting instr. is likely to be in reducing that risk
b. where a 403 obj. most successful: when the evid. is offered to est. a proposition
that is not seriously contested in the case.
b. If proponent is Pros., must respond to a criminal D’s demand for notice
c. Other permissible purposes (McCormick’s handbook on the law of evid.)
1. “same transaction”: when reference to other crimes is essential to a coherent and
intelligible description of the offense at bar, to complete the story
2. to prove existence of a larger plan, scheme or conspiracy, of which the crime on trial
is an integral part; relevant as motive, identity, and intention
3. to prove other crimes by D so nearly identical in method to earmark them as the
handiwork of D; pattern and characteristics must be so unusual and distinctive to be
like a signature
4. to show passion or propensity for unusual and abnormal sexual relations
5. to show that D acted with malice, deliberation, or the requisite specific intent
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D. Evidence of Sexual Assault and Child Molestation
1. FRE 413-415. permit specific acts of sexual misconduct to prove a person’s character or
propensity for engaging in sexual assault to show action in conformity in cases involving
charges of sexual assault and child molestation.
a. removes the 404 impediment to the admissibility of relevant sexual assault evidence
b. low preliminary fact requirements
1. no requirement that the sexual assault resulted in a conviction or even a crim. charge
2. if question about nature of D’s involvement, resolved same as question of culpable
conduct in other specific acts, 104(b)
c. actual impact
1. may be generally insignificant:
a. FRE applies to Fed. Ct. and most crim. cases in state court,
b. 404(b) restrictions already quite limited b/c can argue other purpose
c. courts already quite willing to allow the evid in stranger rape and child
molestation cases
2. where it makes a difference
a. in acquaintance rape cases where D claims consent and civil cases
b. but even w/ rules, cts still likely to exclude evid. in these cases that would get in
for stranger rape or child molestation cases
d. 403 issues
1. whether 413-415 preclude reliance on 403 to exclude sexual misconduct evid?
a.. virtually every App. ct. has held FRE 403 still applies!
2. “is admissible” suggests court do not have discretion to exclude on 403 grounds
e. methods of proof
1. although rules could be read to only allow specific acts, may be little reason to obj to
opinion or reputation evid. since always allowed if char is allowed
2. but, reasonable basis for limiting to specific acts b/c most probative.
E. Evid. of an Alleged Victim’s Past Sexual Behavior or Disposition in Sex Offense Cases
1. FRE 412. excludes most evidence of an alleged victim’s prior sexual behavior and sexual
predisposition, even when relevant
a. 412(b) Exceptions
1. in crim. cases; admissible if otherwise admissible under these rules.
a. to prove other source of semen, injury, or other physical evid
b. instances of sexual behavior w/ the D, offer by D to prove consent or by Pros.
c. evid. the exclusion of which would violate he constitutional rights of D
2. in civil cases
a. Reverse 403 balancing test in 412(b)(2) governs admissibility; favors exclusion
b. 412(c) Notice and hearing requirement
1. more demanding than other notice requirements
c. Rationale
1. theoretically, should be handled by 403, but b/c of society’s view and treatment of
women, esp. rape victims, the rule is needed
2. Exclusion under 412 may be challenged as a violation of D’s constitutional rights
a. most unsuccessful
b. most common type of successful constitutional challenge occurs where D seeks to
introduce evid to impeach the alleged victim by showing bias.
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F. Habit and Routine Practice
1. FRE 406. Evid of the habit of a person or routine practice (custom) of an org is relevant to
prove that action on a particular occasion in conformity w/ the habit or routine practice.
a. since relevant and not excluded by another FRE, it is admissible w/out limitation to show
action in conformity on a particular occasion
b. no conditions of admissibility
1. at common law, some jurisdictions would only admit habit if there were no
eyewitnesses and routine practice only if it were corroborated; 406 rejects these
c. Rationale
1. likely to be more probative b/c of regularity
2. not likely to be prejudicial
3. may be essential, esp. evid of business custom, where no one remembers
d. A.C. Note definitions
1. habit: regular response to a repeated specific situation
2. routine practice: behavior equivalent to habit done on the part of a group
3. character: generalized descrip. of disposition or of a general trait (moral connotation)
e. Methods of proof
1. 406 does not deal w/ it, but likely either specific acts or opinion
2. cannot use reputation evid, b/c would be hearsay
f. preliminary fact-finding: whether the evid est. the existence of the habit or routine prac.
1. evid must be one that can qualify as a habit rather than a character trait
2. evid. must est. that the activity is sufficiently regularized to be a habit
3. if not, court may exclude on 104(a) or 403 grounds
G. Similar Happenings or Nonhappenings
1. Examples:
a. evid that a tort D has committed similar torts in the past
b. evid, in tort case, that an instrumentality has caused other similar injuries
c. evid. that a party has filed similar claims in the past to suggest that such claims are
spurious or that there is a pre-existing cause for P’s injuries
d. evid, in a br. of K case, that a party has entered into similar contracts
e. evid of other property transactions to prove the value of property
2. No Specific FRE
3. Approach to admissibility
a. why is the evid. arguably admissible?
b. if relevant, does a specific exclusionary rule (like 404 or hearsay) make it inadmissible?
c. if not, is it inadmissible under 403? (remember, 403 favors admissibility)
4. Human v. Nonhuman evidence
a. when similar happenings are actions of persons offered to show how that person behaved
on a particular occasion, they are subject to 404-406 considerations
1. need to characterize as “habit” to get in
b. when similar happenings are allegedly caused by some nonhuman instrumentality:
1. if offer witness w/ 1st hand knowledge, then judge will only have to consider 401-403
b/c no 104 preliminary finding of similarity is required for admissibility.
5. Similar happenings to show an institutional policy or practice
a. one of the most imp. uses for similar happenings
b. ex: in civil rights cases against police for police brutality, evid of other incidents of
excessive force are almost a necessity in order for P to win
6. Application of 403 to similar happenings evidence
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a. when similar happenings evid is offered to show notice, courts are typically liberal in
admitting it; prob. value of the evid depends on whether D knew or should’ve known of
the other incidents
b. when the prob. value of the evid. depends on the degree of similarity, cts likely to require
a high degree of similarity (substantial similarity) as condition to admissibility, under 403
7. Evid of Similar Nonhappenings
a. cts tend to exercise high degree of control over admissibility of evidence of
nonhappenings offered to prove lack of notice or that an event did not occur or did not
occur in the manner or for the reasons alleged.
b. Ct. is likely to require:
1. evid that the conditions were similar during the time of nonhappenings
2. significant # of nonhappenings
H. Inadmissible to Prove Negligence, Culpable Conduct, or Liability
1. Certain types of evid are inadmissible to prove negligence, culpability, or liability
-- BUT they are admissible to prove other matters like ownership, control, or bias.
a. argument that jury will not be able to follow the limiting instruction
b. exclusion based on low prob value on quest of negligence or fault and 403 dangers, i.e.
mislead or confuse jury; also, don’t want to deter remedial action or punish good actions
2. FRE 407. Subsequent Remedial Measures.
a. exclusionary mandate: evid of taking remedial measure is inadmissible if opponent est.
1. the measure was taken after the event being litigated
2. taking the measure would have lessened the likelihood of the event’s reoccurrence
3. the evid is offered to show negligence, culpability, or liability
4. if the evid. is relevant for some other purpose, that the prob value for that purpose is
subst. outweighed by the risk that jury may consider the evid as proof of neglig., etc.
b. doesn’t exclude evid of remedial measures offer to prove ownership, control, or
feasibility of precautionary measure, if controverted, or impeachment, if:
1. the issue on which the evid is offered must be in actual controversy, and
2. 403 standard must be satisfied
c. A.C. Notes on Purpose of rule: conduct not an admission b/c equally consistent w/ the
injury by accident or contributory neg. (just b/c wiser now, doesn’t mean foolish b/f)
3. FRE 409. Payment of Medical and Similar Expenses
a. Purpose: such offers are generally made from humane impulses and not from an
admission of liability; to hold otherwise would discourage assistance to injured
b. statements made in conjunction w/ payments are not excluded
c. common law permitted admittance of payments for other purposes; not clear if rule does
d. not clear what “similar expenses” includes; issue rarely arises
4. FRE 411. Liability Insurance.
a. excludes evid of liability insurance to prove negligence, etc, BUT doesn’t exclude when
offered for other purpose, i.e., proof of agency, ownership, or control; bias or prejudice.
a. list of permissible purposes is not exclusive
b. if permissible purpose, admissibility hinges on 403, which requires at a minimum that
the issue for which the evid is offered be contested.
b. A.C. Note: not very probative evid. and risk of jury decide against D b/c insured
c. A.C. Note: the rule applies to contrib. negligence or other fault of P, as well as fault of D.
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I. Inadmissibility of Offers and Pleas
1. FRE 410. Pleas, plea discussions, and related statements are inadmissible against the D
a. Withdrawn Guilty Pleas
1. Purpose:
a. value of withdraw as a remedy for a violation of D’s rights would be undermined
b. judge already determined that plea unreliable, so prob. value doubted
c. relitigation of that issue could be time consuming &/or force D to take stand
b. Pleas of No Contest (nolo contender)
1. Purpose:
a. promotion of disposition of crim cases by compromise (encourages pleading)
-- to use for purpose of admission would undermine the value of the plea
b. free communication is needed to compromise
2. Probative Value uncertain by nature of plea, a compromise
c. Statements made in conjunction with the process of making and negotiating pleas
1. excluded in the rule b/c need open communication to settle
d. Scope of FRE 410(4)
1. 2 important limitations on the scope of 410(4)
a. statements must be made in the course of plea discussions,
i.e. if D is merely seeking leniency in the charge w/out suggesting possibility of
pleading guilty, then not excluded
b. D’s statements must be made to an attorney for the prosecuting authority
e. The exceptions to FRE 410(3) and (4)
1. #1 acknowledges the rule of completeness encompassed in FRE 106
2. #2 permits the prosecution to bring perjury charges against a D who lies under oath
during plea negotiations (rare)
f. Waiver of FRE 410’s Exclusionary mandate
1. U.S. v. Mezzanatto, S.Ct. held that D may waive the 410(4) exclusionary mandate as
part of plea negotiations, at least w/ regard to the impeachment use of statements
made in the process of plea negotiations.
J. Curative Admissibility, “Fighting Fire w/ Fire”
1. permits a party to introduce normally in admissible evid in response to the opposing party’s
introduction of or attempt to introduce inadmissible evidence.
a. likely to apply only in situation where a timely obj. to the opponent’s inadmissible evid is
unlikely to correct the unfairness of presenting or suggesting the evidence to the jury.
2. No FRE dealing w/ the doctrine, but the fed courts have invoked the doctrine
3. Most, but not all jurisdictions recognize some version of the curative admissibility doctrine
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IV.
Hearsay Rule
A. General Rule of Exclusion and the Definition of Hearsay
1. FRE 801. Definitions.
a. Hearsay: an out-of-court statement offered to prove the truth of the matter asserted
2. FRE 802. Hearsay Rule
a. Hearsay is inadmissible except as otherwise provided
1. excludes evid only for a particular purpose: to prove the truth of the matter asserted
2. some out-of-court statements are relevant w/out regard to their truth
3. First question always: Why is the evidence relevant?
b. Rational: no opportunity to cross-examine, not made under oath, and jury didn’t have
opp. to observe demeanor.
1. hearsay dangers:
a. Narration danger: inadvertently used wrong word
b. Ambiguity danger: words subject to more than one interpretation, listener unsure
c. Sincerity danger: speaker is trying to deceive the listener
d. Perception danger: an inaccurate reflection of the event
e. Memory danger: at time of statement, forgot details about the event perceived
2. These hearsay dangers exists for both witnesses and declarants
3. Testimonial triangle
a. Start w/ declarant’s spoken or written out of court words, usually presented to jury via
testimony or exhibit
b. Inference from declarant’s words to declarant’s state of mind;
1. requires reliance on the declarant’s sincerity and narrative-ambiguity
c. inference from the declarant’s state of mind of belief to the existence of the event that
caused the belief (C)
1. Requires reliance on declarant’s perception and memory
Declarant’s Belief
B
Narration-Ambiguity,
Sincerity
Essential
Element
A
Perception,
Memory
C
Declarant’s
Utterance
Event
Issue
3. Multiple Hearsay
a. inadmissible unless there is a hearsay exemption or exception for each layer of hearsay
b. FRE 805. Hearsay included w/in hearsay is not excluded if each part of the combined
statements conforms w/ an exception to the hearsay rule
4. Non-hearsay uses
a. if statement not offered to prove the truth of the statement, it is not hearsay and may be
admissible
1. ex: relevant to show its effect on the listener
2. ex: a statement that is itself a legally operative fact; where the fact the statement (the
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words themselves) was made is the event to be proved.
3. ex: prior inconsistent statements if offered to impeach
4. ex. State of mind
b. how to respond to a hearsay obj.
1. articulate what the out-of-court utterance is offered to prove
2. that what it is offered to prove is a fact of consequence in the case
3. why exclusion as hearsay is not appropriate; why hearsay policy is not implicated
c. statements relevant for non-hearsay and hearsay uses
1. where a piece of evid is admissible for one purpose, but inadmissible for another,
quest of admissibility falls under 403
5. Nonverbal Conduct
a. FRE 801(a)(2): a “statement” is . . . (2) nonverbal conduct of a person, if it is intended
by the person as an assertion.
b. Assertive Nonverbal Conduct
1. Test: did the declarant intend her nonverbal conduct to be an assertion?
c. Nonassertive conduct
1. conduct not intended by the actor as an assertion
2. Rationale for excluding it from the def. of hearsay
a. probable absence of any sincerity danger
b. A.C. Note also says the other dangers are low, although book disagrees
-- actually increases the ambiguity problem, so low probative value
c. necessity: burdensome or even impossible to obtain other, “better” evid; so
pervasive and often relied on as a matter of course
d. The intent test: used as an alternative to the literal truth of the matter asserted test under 801(c)
1. a prelim. quest of fact: was the actor’s nonverbal conduct intended as an assertion?
2. decided based on the nature of the conduct and the circumstances surrounding it
3. judge makes decision under 104(a)
a. A.C. Note states that the burden is on the party opponent of the evid who is obj to
the admission of the actor’s conduct as hearsay
e. disguised assertions: evid that appears to be nonassertive but is in fact relevant only b/c of
underlying assertive behavior should be considered hearsay
1. ex: conviction, arrest, revocation of license.
2. minority position
6. Implied Assertions
a. Utterances relevant to prove the truth of the declarant’s unstated beliefs
1. ex. Sally says, “That driver must be drunk”: not offered for its truth, but statement is
offered to prove Sally’s unstated belief that the driver of the car drove recklessly.
2. hearsay policy is implicated
3. no “correct” response to whether it is hearsay
a. common law rule that utterances not offered for the truth of the literal matters
they assert, but for truth of the implied assertions that make them relevant, should
be classified as hearsay; Declarant-oriented test
-- Wright, letter offered to prove the decedent’s competency considered hearsay;
b. under 801(c), such utterances escape the def. of hearsay b/c they are not intended
as an assertion offered to prove the truth of the literal matter asserted.
1. focus on intent; Wright letters not hearsay b/c no intent, so admissible.
2. analogy to nonverbal nonassertive conduct
c. Not hearsay (admissible) if not statement of historical fact, non-declarative;
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i.e., “Hello Dave,” or “Beware of Dog”
7. State of Mind Evidence
a. where state of mind is an issue, declarants statements about own state of mind are highly
probative and no perception or memory danger, b/c state of mind is the issue not an event
b. 801(c) defines utterances that directly assert the declarant’s mental state as hearsay, but it
will be admitted under 803(3), the state-of-mind exception
-- ex: “I hate basketball” or “I hate my wife”/ “I feel alienated from my wife.”
c. utterances that are circumstantial evid of the declarant’s state of mind are not offered for
the truth of the literal matter they assert, maybe not hearsay; 803(3) admits if hearsay
-- ex: “basketball is boring” or “My wife is a rat”
B. Process of Admission of Possible Hearsay Evid Under Exemptions or Exceptions:
1. Proponent typically offers to prove a declarant’s out-of-court statement through the
testimony of a W who overheard it or through an exhibit that contains it
2. Opponent objects b/c hearsay
3. To Rule on Objection -- Judge needs to decide:
a. Whether statement is hearsay under 801 (a) – (c)
b. IF yes, whether it falls w/in a categorical terms of an exception or exemption
4. Burden is on the proponent of the statement to produce foundational evidence to satisfy
the exemption or exception
a. Foundational Req. = Foundational evid typically is evidence of who the declarant is,
what the content of the statement is or the out-of-court circumstances in which the
hearsay statement was made in; must satisfy the 104(a) standard
b. Typically end up needing to call a foundational witness
c. Keep in mind that an out of court statement may be admissible under more than one
exception or exemption and its sufficient to overcome the hearsay objection to show
evidence of just ONE exemption or exception
C. Exemptions
1. FRE 801(d) exempt certain categories of out-of-court statements from the def. of hearsay
a. 801(d)(1) Prior Statements
1. Admits specific types of out of court statements made by declarant who is testifying
a. General Foundational Requirements of all 801(d)(1) Exemptions:
1. Out of court declarant is testifying at trial and
a. to prove, W can acknowledge out of court statement or can offer testimony
of another W who can say that the W was the out of court speaker
2. Declarant is subject to cross concerning the statement
a. Opponent’s opportunity to cross the W-declarant is the principle
justification for the exemption
b. Cross includes re-direct
c. prior statements can also be admitted through the testimony of a third
person as long as the W-Declarant is still available, in court, subject to reexamination and may easily be recalled by opposing party
d. requirement of being able to cross W on a prior statement applies to W’s
who can’t remember their prior statement or the underlying events or both
3. Personal Knowledge, under 602 is REQUIRED of hearsay declarants
a. Some cts have required 104a preponderance of the evidence std. to
personal knowledge requirement of hearsay declarants
b. Justifications for 801(d) (1) Exemptions:
1. Availability to the W-Declarant for cross
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2. Prior statements may be more reliable than in-court testimony (Memory fades)
3. admissible for impeaching and rehabilitating W so if going to get in any way,
arguably appropriate to admit for truth, rather than confuse jury w/ limiting
instructions
2. 801(d)(1)(A): admits W’s prior statement, under oath or in a deposition, that is
inconsistent w/ W’s testimony at trial
a. Foundational Requirements:
1. Contents of the statement are inconsistent w/ testimony given at trial
a. Determined by comparing the contents of the two statements
b. Evasion: Some courts have found inconsistency when W claims loss of
memory of relevant events while testifying at trial but had previously
testified fully about them b/f the grand jury
c. Inconsistency can be found in evasive answers, silence, or changes in
position and in a manifest reluctance to testify at trial
2. Statement made under oath subject to penalty of perjury
3. statement was made at a trial, hearing, other proceeding or in a deposition
b. Prior statement need not have been subject to cross
1. Represents a compromise in Congress b/w those wanting all prior inconsistent
statements in and those wanting to keep them out unless subject to cross
c. FRE allows these to be used for substantive use (not just to impeach), but has to
be a statement previously made under oath during a proceeding or in a deposition
d. Prior inconsistent statements Not w/ in 801(d)(1)(A)
1. At common law any prior inconsistency was admissible to impeach a
testifying W but not for its truth
2. Under FRE, an alleged inconsistent statement not w/ in 801(d)(1)(A) may still
be admitted to impeach but should not be relied on for their truth
3. 801(d)(1)(B): admits W’s prior statement that is consistent w/ W’s testimony at trial,
to and is offered to rebut an express or implied charge against W of recent fabrication
or improper influence or motive
a. Foundational Requirements
1. Contents of the statement are consistent w/ the testimony given at trial
a. Determined by comparing the contents of the two statements
2. Statement is offered to rebut charge of recent fabrication or improper
influence or motive
a. only exempt from def. of hearsay after credibility has been attacked
b. attack will be apparent from the examination of the W or from the
admission other impeaching evidence
c. implied charges of recent fabrication or improper influence or motive does
not incl. a mere inconsistency at C.L. so couldn’t rehabilitate
d. rebutting the charge
1.must be rebutting, not bolstering
2. only pre-motive statements can rebut an improper motive charge
b. if admissible, no limit on using extrinsic evidence to prove prior consistent
statements but in practice probably won’t need to!
c. expands the C.L. b/c if this rebuttal requirement is met, the statement is
admissible for its truth (substantively admissible)
4. 801(d)(1)(C): admits W’s prior statement of identification of a person made after
perceiving the person
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a. Foundational Requirements:
1. Contents of the statement identify a person
2. Statement was made after the declarant perceived that person
a. Intended to include statements made at traditional line-ups and show-ups
b. Its been held to include statements that identify a person seen again in a
chance encounter, that identify the photo of a person, and that identify a
police artists sketch, or even physical description of a person given by the
declarant to the police w/out any re-perception of the person at all
c. No requirement of close temporal proximity b/t perceiving the person and
the statement of identification
c. Consistent Identifications:
1. 801(d)(1)(C) means that a prior identification that’s consistent w/ in-court
testimony can be admitted w/out proof of an express or implied charge of
recent fabrication or improper influence
d. Inconsistent Identifications:
1. can also be admitted even though not made under oath or at a hearing
2. Even if W can’t remember the underlying event and can’t make an in-court id
at all can still get in the prior statement of identification
3. doesn’t have to be made under oath, or in a proceeding, so if trying to get in
an inconsistent identification statement doesn’t matter if not made under oath
e. Justifications for 801d1C:
1. Ability to cross
a. Still have Risks though b/c prior statement has no inducement to sincerity
b/c no oath and may be informal setting
2. Necessity of prior id’s
f. Constitutional Concerns: whether the prior i.d. violated crim D’s rights:
1. Right to counsel and right to due process
2. Case that suggests this may be grounds for exclusion of the id in some cases
b. 801(d)(2) Admission by party-opponent
1. admits statements made by a party or made by persons affiliate w/ a party as long as
the statements are offered against that party
a. Primary justifications:
1. the party can’t fairly complain about the loss of cross of the declarant b/c the
party can explain the unreliability in the statement; or
2. necessity
b. common foundational requirement is that the declarant’s statement must be
offered against the party; must be offered by the party’s opponent
c. no personal knowledge requirement under 801d2(A,B,C, or D)
2. 801(d)(2)(A): admits a party’s own statement that is against that party
a. Foundational Requirements:
1. statement is made my a party
a. person can be a party to the suit as an individual or as a trustee, executor,
guardian of another entity or individual
b. statements against the individual party even if those statements were made
when the individual was speaking as a representative out of court
2. statement is offered against that party
b. any statement made out of court by a party may be used against that party to prove
the truth of the matter asserted as long as it’s relevant and not otherwise objection.
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1. subject to 104(b) and (a) if relevance is questioned
2. subject to 403
c. Diff. b/t admissions and declarations against interest
1. Party admissions don’t have to be against interest
2. Declarations against interest apply only when declarant is unavailable to be a
witness at trial
3. admission must be made by a party or his/her representative and admitted
against the party;
4. declarations against interest apply to statements which can
be offered as evidence by the party who made the statements and can include
statements by 3rd persons
c. Justification:
1. Opportunity to explain – party can always take stand and explain on direct so
no worry about not being able to cross
2. although admitting an admission might put pressure on criminal Defendant to
waive 5th amendment right not to incriminate, there are lots of similar threats
that don’t trigger the constitution
3. moral responsibility rationale: responsible or own statements
4. norms of fairness: people who choose to speak usually do so in own selfinterest, analogous to estoppel: can’t change position mid stream
5. adversarial fairness
d. Admissibility of Party Admissions in Multiparty Case:
1. admissions only admissible against party who said it, so if multiparty then can
either use limiting instruction or may have to exclude b/c of constitutional
concerns, unless can edit out references to the co-defendant
2. Courts split on letting parties in multi party case raise out of court admissions
against each other even though technically they aren’t opponents
e. NOTE: pleadings count as admissions but not when pleading in the alternative
3. 801(d)(2)(B): admits a statement of which the party has manifested an adoption or
belief in its truth
a. Foundational Requirements
1. a statement has been made
--no limit on who makes it
2. party has done something to manifest an adoption of or show belief in its truth
-- no limit on type of behavior either
a. ex: party opened bag of crack & said you can get another from my friend
party nodded after statement by another and made sound of agreement
party used for own advantage a written statement prepared by another
party signed statement prepared by another
party repeated statement of another
b. can be implied, like silence
a. test for implied adoptions via silence or action not expressly adoptive:
taking into account all circumstances, does A’s conduct or silence
justify the conclusion that he knowingly agreed w/ B’s statement?
b. Justification: party credited the sincerity, narration, perception and memory of
the 3rd person declarant so fair admission
4. 801(d)(2)(C): admits statement by a person authorized by the party to make a
statement concerning the subject.
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a. Foundational Requirements
1. Statement concerns a subject;
2. Statement was made by someone that party authorized to make a statement
concerning that subject; and
3. Statement offered against that party.
b. Statements by Attorneys:
1. Statements of facts made in litigation docs (briefs, pleadings, answers,
responses to requests for docs) and in opening and closing statements at trial
may all be w/ in attorneys authority even though no specific grant of authority
to make the particular statement
2. Att’ys tasks and nature of relationship imply authority to speak on party’s
behalf
c. Justification
1. Necessity: no guarantee that the declarant will be available to testify at trial
2. Fairness: if proponents can’t use it they would either have to call the agents as
hostile W’s or forego the info, plus third parties rely on these statements in
course of business so fair to place some burden of accountability for agent’s’
out of court statements
3. Reliability: if statement authorized under C, it’s reasonable to infer that the
principal has exercised some discretion in selecting a trustworthy and reliable
spokesperson
5. 801(d)(2)(D): admits statements by the party’s agent or employee concerning a matter
w/in the scope of the agency or employment, made during the relationship
a. Foundational Requirements
1. the declarant is an agent or employee of the party;
2. the statement was made during this relationship:
3. the statement concerns a matter w/in the scope of the agency or employment;
4. the statement is offered against the party
b. note: no authority requirement
c. Justification:
1. Necessity: no guarantee that the declarant will be available to testify at trial
2. Fairness: if proponents can’t use it they would either have to call the agents as
hostile W’s or forego the info, plus third parties rely on these statements in
course of business so fair to place some burden of accountability for agent’s’
out of court statements
3. Reliability:
a. if statement is about a matter central to the activities of the agency there is
reason to believe that the agent has solid basis for making the statement
and for making it carefully and accurately
b. if the declarant is an agent at the time of the statement then reasonable to
infer that the declarant is loyal to the interests of the principal and so the
declarant would not lie to injure the principal
d. Since many courts dispense w/ the personal knowledge requirement, possible for
an agent’s statement that is based only in rumor to be admissible against a princip
--Puts principal under heavy burden of disproving the reliability of the statement
and has been severely criticized
6. 801(d)(2)(E): statements made by one conspirator are admissible against another as
long as statement was made during the course of conspiracy and in furtherance of it
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1. Foundational Requirements
a. Declarant and party against whom statement offered were both members of a
conspiracy
1. Requires meeting of the minds to accomplish an illegal purpose
2. Both conspirators don’t have to be formally charged w/ conspiracy to use
admissions
b. The statement was made during course of the conspiracy
1. Statements made prior to the D joining the conspiracy are inadmissible
2. Statements after termination of the conspiracy admissible only against the
declarant not against the other conspirators; so if conspiracy broken up by
arrest, anything said to police is not in its furtherance
3. If conspiracy achieves its goals
4. Statements made during concealment phase are not admissible under
majority opinion b/c self preservation risks but can be dispute over when
concealment phase begins
c. Statement made in furtherance of conspiracy
2. Justification
a. Reliability: active conspirators are likely to know who the members of the
conspiracy are and what they have done; when speaking in advance of the
conspiracy they are unlikely to describe non-members as conspirators and
usually will have no incentive to misdescribe non-members as conspirators
b. necessity: conspirators will rarely give testimony implicating each other at
trial, each will have 5th amendment right against self incrimination on
anything involving the conspiracy, so need exception to get convictions
3. Preliminary Fact-finding:
a. existence of the conspiracy and satisfaction of other factual requirements is to
be decided by the judge according to 104(a). Bourjaily
b. Process of decision:
1. Conduct mini trial outside jury
2. By time statement offered might already have enough evidence on the
record
3. Conditional admission: let the statement in conditioned on connecting up
later
c. Bourjaily also held that the judge can rely on the statement itself as evidence
of the conspiracy; but FRE amended so that statement alone is not sufficient
to establish declarant’s authority and/or participation under C,D, or E
4. Privity ???
D. Exceptions
1. FRE 803. Exceptions Not Requiring the Unavailability of the Declarant
a. 2 General Points about the exceptions:
1. b/c the declarant’s statement is being offered for its truth, declarant is source of
knowledge for jury and subj to the fundamental requirement that it be personal
knowledge (602)
a. the advisory committee sets this out
2. opponent can attack credibility of declarant in most of ways that a witness’ credibility
is attacked, Rule 806
a. may be attacked and if attacked may be supported by evidence which would be
admissible for those purposes if declarant had testified as witness
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b. evidence of statement or conduct inconsistent w/ hearsay statement is not subject
to requirement that declarant have chance to explain
c. if party against whom hearsay admitted calls declarant can examine the declarant
on statement as if under cross
b. 803(1) Present Sense Impression
1. Foundational Requirements
a. Occurrence of event or condition
b. Contents of the statement describe or explain the event or condition; and
c. Declarant made the statement while perceiving the event or condition or
immediately thereafter
1. many courts have interpreted immediately thereafter to mean w/in seconds –
2. some have stretched it to admit apparently spontaneous statements made 10 to
15 minutes after the event they describe or explain
2. Justification for admissibility of Present Sense Impressions:
a. Reliability: the contemporaneity of the statement and the event it is offered to
prove tends to ensure the declarant’s sincerity b/c it is spontaneous rather than
premeditated, so no time to fabricate
b. Also, no memory issues
3. Different from C.L.: Common law required that there be some independent
corroboration of the substance of the statement – but 803(1) doesn’t require it
b. 803(2) Excited Utterance.
1. Foundational Requirements
a. occurrence of startling event or condition
b. contents of statement relate to a startling event or condition (broader than 803(1))
c. statement made by the declarant while under stress of excitement; and
d. stress of excitement was caused by startling event or condition
[e. no specific time restraint but time is relevant in determining whether the statement is
made while the declarant is still under stress]
2. Justification for Admissibility:
a. Reliable: statement made under stress of exciting event or condition tends to
ensure statement is spontaneous, so no time to fabricate and if no time to fabricate
then no opportunity to fabricate, so likely statement is sincere
b. less memory danger b/c duration of stress of event likely to be relatively short
1. no foundational requirement of contemporaneity b/w event and statement –
stress of excitement is the substitute—so longer time lag if still under stress of
excitement won’t defeat an 803(2) exception
c. CRITICISM of the justification:
1. stress that decreases sincerity danger may increase perception and memory
dangers and even narration dangers
2. But rule is well established in federal and most state jurisdictions
3. Factors re. whether declarant was under stress of excitement when statement made:
a. Declarant actually involved in event
b. Appeared to be visibly shaken by event
c. Made in response to a question
c. Issues arising under both 803(1) and 803(2).
1. Use of Statement Itself in Preliminary Fact-finding: May Judge rely on the content of
hearsay statement alone to establish the preliminary fact that that event occurred?
a. under 104(a) inadmissible evidence is ok to use so statement itself is permitted
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some authority that it is
b. A.C. Notes
1. on occasion only evidence may be the content of the statement itself;
rulings that it may be sufficient are increasing and prevailing practice
2. If declarant was an unidentifiable bystander, only in appropriate
circumstances would statement alone be sufficient
a. if only relevant if D said it, let it in and let the jury decide
b. if hearsay is relevant regardless of who made it, then judge exclude under
104(a): not satisfied by preponderance of evid
c. Excited utterance may be easier to est. in practice b/c ample indep. evid that
an exciting event occurred; even if no eyewitnesses, declarant’s nervousness
or injuries or quivering voice would constitute some independent evid
2. Proof of Personal Knowledge: Must estab. declarant had personal knowledge of event
a. Content of statement and circumstances surrounding the making of it may be
sufficient even when the declarant is unidentified.
e. Ex: Miller v Keating un-i.d. bystander ran up to parties involved in collision and
exclaimed that one car had cut into traffic causing the accident; court reversed
admissibility b/c subst of statement doesn’t contain words revealing perception
d. 803(3) Then Existing Mental, Emotional, or Physical Condition (State of Mind)
1. Foundational Requirements
a. contents of statement must express declarant’s currently existing state of mind at
time of statement;
1. judge can determine content from proof of the statement itself
2. no foundational facts concerning the declarant or the circumstances w/in
which the statement was made are required -b. state of mind may include emotion, sensation, physical condition, intent, plan,
motive, design, mental felling, pain, and bodily health; and
1. defined broadly to include any sensation present in the mind of declarant,
2. scope limited to proving the relevant state of mind
c. state of mind of memory or belief may not be used to prove the fact remembered
or believed, unless it relates to the declarant’s will
1. ex: I think my brakes are bad – may prove state of mind knowledge but not
that the brakes are bad
2. but I want Harold to inherit all of my estate so I have left it all to him in my
will—is admissible to prove state of mind and terms of declarant’s will
2. Justification for Admissibility of State of Mind Exception:
a. state. to prove current state of mind requires inferences about the declarant’s
sincerity and narration but not perception or memory
b Reliability: the absence of these dangers provides circumstantial guarantees of
trustworthiness and thus diminishes the importance of cross
1. But, substantial sincerity risks b/c no independent requirement of spontaneity
so can have premeditation, opp. to fabricate, and no definitive means of
proving that declarant really has the mental state being spoken about
2. Such concerns are for jury to consider in its fact-finding
c. Necessity: may justify even though sincerity risk is high b/c such a pervasive part
of substantive law that unwise to bar admissibility of primary source of evidence
about mental states
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1. But state of mind evid is not limited to situations where mental state is
ultimate issue in litigation and frequently can infer mental state from conduct
d. Statements about wills requires reliance on all testimonial qualities, but admit
it b/c justified by the likelihood that person will speak carefully about their
wills and necessity that arise from unavailability of declarant
3. Elaboration of Relevant Uses of State of Mind Evidence:
a. Future and Past State of Mind of the Declarant
1. For declarant’s statement of state of mind to be relevant, currently existing
state of mind need not be ultimate issue in case
2. May be used to infer a past or future state of mind (the fact of consequence)
b. Future Conduct of Declarant
1. the inferences from intent to conduct concern the behavior of people but don’t
require eval of declarant’s testimonial qualities
a. Ex.: Plan to leave on Tuesday for vacation
b. truth of the matter asserted is intent to leave on Tuesday; from there, infer
prob. had same intent on Tues and carried it out
2. Probability of each inference from intent to future conduct depends on nature
of intended activity and time lag involved
c. Evid of State of Mind Used to Prove Past Facts
1. Memory or belief to prove the fact remembered or believed not admitted
through state of mind exception (except re: wills) b/c memory and perception
are necessarily implicated to establish relevance
d. 803(4) Statements for Purpose of Medical Diagnosis or Treatment
1. Foundational Requirements
a. Statement must describe medical history, past or present symptoms, pain,
sensation, or inception or the general cause or external source of symptoms
b. Statement about the cause or source must be reasonably pertinent to diagnosis or
treatment; and
c. Statement must be made for the purpose of medical diagnosis or treatment
2. Difference b/w 803(4) and 803(3):
a. 803(4) admits statement to prove current symptoms that exist outside the mind
b. declarant can be a family member, friend, doctor or nurse relating declarant’s
medical history and symptoms. Wilson v Zapata (5th Cir.)
c. key is purpose of statement
3. Justification for admissibility:
a. Assumption that person seeking medical treatment likely to perceive med.
sympt carefully and speak honestly (sincerity) about symptoms and conditions
4. Statements about the cause or external source
a. Common for persons seeking medical treatment to describe how injury happened
and if reasonably pertinent to diagnosis or treatment, then included in 803(4)
1. if not pertinent, then reason to suspect motivation for saying it so question the
sincerity
2. Even if pertinent, perception and memory risks apply, but in Tome, S.Ct.
admitted statements about sexual abuse to dr made a year after alleged
incident when child visited dr’s b/c of litigation and dr asked about the abuse
b. 2 perspectives of Pertinence
a. from declarant’s perspective or perspective of other person receiving the info
b. pertinence is generally determined from the medical professional’s testimony
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re: what reasonable practitioner would ask about the condition
c. some cts require child to know speaking to dr. and why to apply the exception
5. Statements made for Diagnostic Eval for Litigants
a. sincerity rationale may not apply;
1. treatment motive to tell truth tends not to apply
2. possibility of receiving high damage award is incentive to exaggerate present
and past symptoms or suffering
b. at C.L. physical condition exception did not apply to declarations made for
purpose of diagnosis in preparation for litigation
c. FRE specifically abandons C.L. limitation
6. 803(4) may overlap w/ 803(1) and 803(2).
e. 803(5) Recorded Recollection
1. Foundational Requirements
a. Declarant testifies as witness
b. Statement is in form of memo or record
c. Statement concerns matter about which witness can’t remember sufficiently to
testify fully and accurately.
1. No limit on subject matter or content of statements admitted as past
recollection recorded
d. Witness once had personal knowledge of matter (failed memory)
e. Statement was made or adopted when matter was fresh in mind
f. Statement correctly reflects witness’s knowledge
1. Often okay to just say it does, if witness remembers
2. Other ways to lay the foundation:
a. can use the actual record to show how carefully it was made
b. Signed Statement that it was an accurate statement to best of recollection
2. The record may only be read to the jury
a. Can’t be handed around by the jury or taken into jury room for deliberations b/c
might put undue weight on it; deposition is treated same way.
b. if opponent wishes to have the record b/f the jury, may offer it as an exhibit
3. Justification
a. Necessity: absence of memory creates need for admission of statements that
record a witness’s past recollection
b. Reliability: Foundational reqs may increase trustworthiness
1. Made when fresh so decreases memory issue
a. Cts have discretion re: how long after event the statement is recorded
2. Has to be shown to be correct reflection of witness’ knowledge; decreases
sincerity problem and narration issues
c. W is available for cross
4. Multiple Declarants –
a. Ok but increased hearsay policy implication, so proponent must alleviate these –
one way is to call both person making statement and person declaring it so they
can be cross examined
b. Multiple hearsay req. hearsay exception or exemption for each level. FRE 805
1. Recorder under 803(6) doesn’t have to be there if making record was part of
regular business
5. Refreshing Memory (“Present Recollection Refreshed)
a. different procedure
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b. refresh a witness memory by presenting W w/ a document or something else that
the examiner thinks or W suggests will jog W’s memory
c. once memory is jogged, testify from current memory, not the object
d. never admitted into evid, so no restrictions
e. Must keep FRE 612 in mind:
1. if use document to refresh W’s memory prior to trial the adverse party may be
entitled to see that document, even if it would be covered by work product
or client confid.; may be destroying the confidentiality of those documents
2. This rule can get you into a lot of trouble
f. Often easier to just refresh memory, even if could get in by 803(5) or records
f. Records Exceptions
1. 803(6) Business Records.
a. Foundational Requirements
1. Statement is in written or recorded form
2. Record concerns acts, events, conditions, opinions or diagnoses
3. Record made at or near time of the matter recorded
4. Source of info had personal knowledge of matter
5. Record kept in course of reg. business
6. Was regular practice of business to make the record
b. Special Features
1. a specific foundational witness must testify about the foundational facts: “the
custodian or other qualified witness”
2. Exclusionary Cl.: permits judge to exclude, if “the source of the info or the
method or circumstance of preparation show lack of trustworthiness”
a. Palmer, accident report excluded b/c not reg course of business;
Interpreted narrowly what constitutes regular business conduct or duty in
order to eliminate docs prepared w/ self-interest motivation
b. Burden of Persuasion: courts have determined that the opponent to the
records must persuade the judge that it lacks trustworthiness
c. Circumstances indicating lack of trustworthiness:
1. significance of the record for the business; records prepared
specifically for litig are viewed as infused w/ a motive to distort truth
a. where accident reports are prepared pursuant to duty or reg routine
may be found not oriented toward litigation
2. when original source unknown, may find it untrustworthy
3. when reocord on face is irregular, contains mistakes or inconsistencies
may find it untrustworthy.
c. Personal Knowledge:
1. Original source has to have personal knowledge of matter observed
2. Has to be started at or near time observed matter
3. If original source not available then custodian or some other person w/
knowledge of how report prepared would be ok; a 104(a) quest for judge
d. Justifications:
1. Necessity: Frequently multiple person involvement in the production of
business record and would be time consuming and inconvenient to call stand
each individual and may not be available
a. Even if W’s were on the stand may not have present memory of matters in
record so all can do is testify to routine practice of making such a record
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2. Reliability: Requirement that record be made at or near time of matter
recorded reduces memory issue; person making business record has incentive
to be honest; fact that record kept in regular course suggests that may be
checked for accuracy increasing its trustworthiness & no incentive to lie b/c
routine matter
e. Opinions and Diagnosis
1. may lack opportunity to cross person who made the opinion or diagnosis
2. McCormick says that diagnostic material that on its face is conjectural will
likely be excluded
3. Info about the expert or the basis for the opinion may be avail from the
foundation witness or may be contained in the doc.
4. If not, can argue for exclusion several ways
a. FRE 702 – not been qualified as expert
b. FRE 705 – impossible to comply w/ requiremnt that bases for expert
opinion be disclosed
c. FRE 403
f. Multiple Levels of Hearsay
1. 805 requires that each level fit in an exception, so all declarants must be
shown to satisfy all foundational reqs
3. if info transmitted along business chain then its final incarnation may fall w/in
803(6), as long as person w/ the original source of knowledge had a business duty
3. maker of record or foundational W doesn’t’ have to have first hand knowledge
g. Computer-generated Records
1. 803(6) also permits reliance on computer-generated docs. (A.C. Note)
2. their accuracy depends on the accuracy of the software and the abilities of the
person who enters the info;
a. foundation should include both elements
b. the accuracy of the computer program may be part of 901(b)(9)
authentication burden
2. 803(8) Public Records and Reports.
a. Foundational Requirements
1. statement is in the form of a record or report from a public office or agency
2. the contents of the record involve
a. the activities of that office or agency; (incl. internal housekeeping f(x)’s,
records of official activities indep. of any specific investig. or litigation)
b. matters observed and reported pursuant to a duty imposed by law; but
NOT matters observed by police or law enforcement in crim. cases; or
--duty imposed by law rarely requires indep. proof of the law
--has been held that crim D’s may offer such records v. the government
c. factual finding resulting from an investigation authorized by law, but not
against the D in a criminal case
--likely to include multiple hearsay; but don’t need excep. for every level
--Beech Aircraft, S.Ct: as long as the opinion/ concl. is based on factual
invest. and satisfies the trustworthiness req., should be admissible
b. Exclusionary Clause: permits judge to exclude if sources of info or other
circumstances indicate lack of trustworthiness
1. factors indicating lack of trustworthiness of factual findings
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a. timeliness of the investigation
b. special skill or experience of the official
c. whether a hearing was held and the level at which conducted, and
d. possible motivation problems
c. cannot use 803(6) to circumvent limitations in 803(8) Oates; but wrong when
says would be impermissible to use any other exception
d. Def. of Law Enforcement Personnel in 803(8)(c)
1. Oates define law enforcement personnel broadly to incl. customs worker
2. many other courts have interp. it more narrowly: prosecutorial f(x); also allow
police statements in records that are very routine or by officers not engaged in
the investig or prosecution of the indiv. case
3. Other Uses of Records under 803.
a. Other Types of Records; likely to be reliable b/c nature of the entity preparing
them and their subj. matter
1. FRE 803(9) Records of Vital Statistics
2. FRE 803(11) Records of Religious Organizations
3. FRE 803(12) Marriage, Baptismal, and similar Certificates
4. FRE 803(13) Family Records
5. FRE 803(14) Records of documents affecting an interest in property
6. FRE 803(15) Statement in document s affecting an interest in property
7. FRE 803(16) Statements in ancient documents
8. FRE 803(17) Market reports, commercial publications
b. Absence of entry in business and public records
1. FRE 803(7) Absence of Entry in Business Records, under 803(6)
2. FRE 803(10) Absence of Public Record or Entry
3. These exceptions may be used to prove the nonoccurrence or nonexistence of
a matter that probably would have been included in a particular record
a. absence may not be hearsay at all b/c no intent to assert a nonoccurrence
g. 803(22) Judgment of Previous Conviction
1. Foundational Requirements
a. judgment must follow a crim trial or guilty plea
b. judgment must be for a crime punishable by death or impris. of more than 1 year
c. judgment must be offered to prove the truth of a fact essential to the judgment
-- must be clear from the verdict underlying the judgment what facts were
necessarily decide by the jury
d. judgment offered against a crim D must be a judgment entered against that D,
unless it is offered only for impeachment
2. Justification
a. Reliability: confidence that a judgment of guilt in a crim felony is reliable proof
of the facts essential to sustain the judgment (beyond a reasonable doubt stndrd)
2. FRE 804. Exceptions Requiring the Unavailability of the Declarant.
a. 804(a) Definition of Unavailability
1. “includes situations in which the declarant--”
(1) is exempted by ruling of the court on the ground of privilege form testifying
concerning the subject matter of the declarant’s statement; or
(2) persist in refusing to testify concerning the subject matter of the declarant’s
statement despite an order of the court to do so; or
(3) testifies to a lack of memory of the subject matter of the declarant’s statement; or
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(4) is unable tot be present or to testify at the hearing b/c of death or then existing
physical or mental illness or infirmity; or
(5) is absent from the hearing and the proponent of the statement has been unable to
procure the declarant’s attendance (or in the case of 804(b)(2), (3), or (4), the
declarant’s attendance or testimony) by process or other reasonable means.
2. Preliminary Fact-finding: (under 104(a))
a. Representations of counsel have been held sufficient to est. the absence or
unavailability of a witness 804(a)(5), so long as good faith efforts have been made
to secure the witness, incl. request for vol. attendance and subpoenas
b. When issue is witness’s claim of priv. under 804(a)(1), some cts hold that
statements from counsel are insufficient to show W actually will not testify
c. Evid that a mental or physical infirmity will continue for some length of time is
usually necessary under 804(a)(4); otherwise, ct. may seek a continuance to call
the witness, if the testimony is significant
3. Preference for former testimony or deposition when person attendance cannot be
obtained, b/f will be considered unavailable under 804(a)(5)
4. Unavailability caused by the Proponent
a. if witness is unable to, or refuses to testify b/ of the conduct of the proponent, the
witness may not be found to be unavailable
b. there must be a finding of “purpose” underlying the proponent’s conduct;
carelessness, or inability to keep track of a witness is not wrongdoing
b. 804(b) Hearsay exceptions: following are not excluded by the hearsay rule if the
declarant is unavailable as a witness
(1) Former Testimony
a. Foundational Requirements:
1. statement must be in the form of testimony given at a hearing or a deposition
2. in a crim case, the party against whom the statement is being offered must
have had an opp. And similar motive to develop the testimony at the prior
hearing or deposition by direct, cross or re-direct exam; and
3. in a civil case, either the party against whom the statement is being offered, or
a predecessor in interest to that party, must have had an opp. and similar
motive to develop the test. at the prior hearing or deposition by direct, cross or
re-direct exam.
a. No Similar motive at guilty plea hearing or grand jury hearing as at a trial
[4. No requirement of “Offered on the same issue”
a. B/f FRE some cts required the evid be offered on the same legal issue
b. FRE makes no reference to such a requirement; similarity b/t the factual
issues in dispute determine a party’s motive to develop W testimony]
b. Justification
1. Necessity
2. prior opp. to develop testimony is a substitute for present cross
c. Method of introducing Former Testimony
1. any W w/ present knowledge of the content of the former testimony can relate
what was said
2. most common method is to introduce a properly authenticated transcript; the
business records exceptions will generally get around the multiple hearsay
d. Objections to the Content of the Former Test
1. may opponent object to the contents of the former testimony?
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2. FRE does not address
3. McCormick: obj. to the form of the testimony must be made at orig. hearing
when they can be corrected; obj. that go to relevancy or competency of the
evid may be asserted for the 1st time when the former testimony is offered
(2) Statement Under Belief of Impending Death (Dying Declaration)
a. Foundational Requirements:
1. the statement concerns the cause or circumstances of what the declarant
believes is impending death;
2. the statement is made while the declarant believes death to be imminent; and
[--belief in imminent death may be shown by declarant’s own statement or by
circumstances such as the nature of the wound or evid that the declarant was
told death was imminent]
3. the statement is offered in a homicide prosecution or a civil case.
b. Justification:
1. Necessity:
a. unavailability means that there may not be another means of obtaining the
same or similar evid
b. many assaults occur in the privacy of a home or in situations in which
there are not likely to be eyewitnesses
2. Reliability: people who realize that death is imminent will be especially likely
to be sincere
3. Criticism: circumstances surrounding death may exacerbate other hearsay
dangers
(3) Statement Against Interest
a. Foundational Requirements:
1. the content of the statement, at the time the statement was made, was
a. against the pecuniary or proprietary interest of declarant;
b. could subject the declarant to civil or criminal liability; or
c. could render invalid a claim held by the declarant;
2. the statement was against any of the above interests of the declarant to an
extent great enough such that a reasonable person, in declarant’s position,
would not have made such a statement unless it were true; and
3. if the statement exposes the declarant to criminal liability and is offered to
exculpate the accused, evidence of corroborating circumstances that clearly
indicate trustworthiness of the statement must be offered
a. ct. looks to circumstances that corroborate both the content of the statement
and the trustworthiness of the declarant (volun., lack of motive to curry
favor, lack of subsequent inconsistent statements)
b. Justification
1. Reliability: anti-interest factor is thought to give the statement sufficient
circumstantial guarantees of trustworthiness, where the alternative is
foregoing the evid altogether; not likely to be a deliberately false statement
2. Criticism: statement may not really be against interest
a. may be motive to be insincere; self-serving reason to make statement
b. may be sincere statement s that declarant has no idea may be against
interest
c. Collateral Statements
1. S.Ct. in Willimson, held that statements directly implicating someone other
27
than the declarant while confessing to a crime can not be admitted under
804A(b)(3), even though in context of self-inculpatory statement
2. if the collateral facts add meaning or dimension to the anti-interest statement,
or provide more info that in context impairs that interest, might be admissible
under 804(b)(3)
(4) Statement of Personal or Family History
a. Foundational Requirements:
1. content must concern the declarant’s own personal or family history; or
2. the statement concerns the personal or family history of one to whom the
declarant is related or was intimately associated
b. Preliminary Fact-Finding
1. does not require the declarant to have personal knowledge;
2. expands the common law requirement that a declarant speaking about the
pedigree of another be related by blood or marriage
--so long as the relationship is such that the declarant would have accurate
info about the family history
a. may require indep. evid that the declarant was a family member or so
intimately associated w/ a family as to be knowledgeable
3. content limited to facts and events of an objective, rather than subj., nature
c. Justification
1. reliable enough to be admitted if the declarant is unavailable
2. no special assurances are required
(5) Forfeiture by Wrongdoing (Waiver by Misconduct)
a. An amendment that became effective Dec. 1, 1997.
b. meant to apply to witness tampering, but as written, would allow statements of
decedents when the D is charged w/ murder and enough evid exists to satisfy the
court under 104(a) that D committed the crime
3. FRE 807 The Residual Exception (Formerly 803(24) and 804(b)(5))
a. Foundational Requirements:
1. statement must have circumstantial guarantees of trustworthiness
-- either reliable testimonial qualities or independent corroboration
2. these guarantees should be “equivalent” to the exceptions in 803 and 804
3. the statement is offered to prove a material fact
--typically, means nothing more than statement must be relevant
4. the statement is more probative on the point for which it is offered than any other
evid that can be secured through reasonable efforts
b. Not a categorical exception
c. Justification: reliability and necessity
d. Where a statement almost, but not quite, fits w/in a categorical exception, not a bar to
admissibility under 807
1. may be viewed as enhancing trustworthiness or as undermining legis. Intent
2. exception: cts. will not allow prosecution to circumvent the limits of 803(8)(B) and
(C) by using other exceptions, including 807 to admit reports in crim cases
e. Notice requirement: proponent required to notify opponent
f. The Use of the Rule
1. the rule was intended to be used very rarely, and only in exceptional circumstances
2. however, this has not been adhered to in practice.
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V.
Cross Examination, Impeachment, and Rehabilitation
A. Direct and Cross-Examination
1. FRE 611.
a. FRE 611(a) Control by court
1. recognizes in general terms the authority of the judge to control the exam of witnesses
2. provides the authority for ruling on myriad obj., i.e., “badgering the witness,” “asked
and answered,” “improper narrative testimony,” “cumulative and time consuming”
a. courts rarely cite to it though; 403 and 102 already cover most of them.
b. FRE 611(b) Scope of cross-examination
1. Authorizes a cross-examiner to quest a witness about the subject matters to which the
witness testified on direct & about matters relevant to the credibility of the witness
2. Court, however, has discretion to permit inquiry into additional matters on cross; such
inquiry is treated as if it were direct examination.
b. FRE 611(c) Leading Questions
1. states the trad, rule that direct examiner may not generally use leading quest. on direct
a. common, but not “necessary,” to use leading quest for prelim. matters on direct.
2. gives a ct discretion to permit leading questions on direct of hostile witnesses or other
witnesses if the leading questions appear necessary to develop the testimony, and to
disallow the use of needlessly suggestive questions to a friendly witness on cross.
B. Impeachment and Rehabilitation
1. General
a. Impeachment is the process of trying to raise doubts about the testimonial abilities of a
witness
b. Types of Impeachment Evidence
1. Evid that a witness has a character trait for untruthfulness suggests that the witness
may be untruthful of the stand.
2. showing that the witness has a bias or interest in the case suggests a motive for being
untruthful
3. attacks on other testimonial qualities, witness’s narrative or perceptive abilities, may
undermine a witness’s credibility; may focus on general abilities or on the specific
exercise of those abilities on the relevant occasion.
4. proof of a witness’s inconsistent statements suggest fact finder should be skeptical
about the accuracy of the witness’s testimony.
5. testimony from others that contradicts the witness may reduce witness believability
c. Impeachment evid must be relevant to prove or disprove some fact that is in dispute;
-- if not would be inadmissible under 402.
1. impeachment evid need not be admissible for substantive purposes, though
a. opponent entitled to a liming instruction; admitted only for impeachment purpose
b. proponent of the impeachment evid cannot rely on such evid to satisfy a burden of
production
c. proponent in closing can’t rely on impeach. evid as subst proof of disputed facts.
d. Extrinsic Evid.: any evid other than that developed through direct or cross of that witness
1. presents 403 concerns of confusion of the issue and waste of time
e. Bolstering Credibility:
1. Gen’l C.L. rule prevented a party from bolstering a witness’s credibility b/f impeach
-- some Fed cts still follow
2. FRE contains no gen’l prohibition against bolstering credibility b/f impeachment.
-- 403 probably precludes it
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3. FRE 608(a), however, prohibits intro. of reputation or opinion evid of a witness’s
good char for truthfulness unless the witness’s char. for truthfulness has been attacked
2. Impeachment and Rehabilitation with Character Evidence
a. FRE 608. Allows evid of character for truthfulness to infer action in conformity w/ that
character while on the stand (impeachment or rehabilitation)
1. FRE 608(a).
a. permits a party to impeach the char. for truthfulness of a witness by offering
extrinsic opinion or reputation evid. about the witness’s char for truthfulness
b. permits reputation or opinion evid offered to prove a witness’s good char for
truthfulness only after the witness’s char for truthfulness has been attacked.
1. A.C. Note gives some indication of what is included in “char. for truthfulness”
a. misconduct probative of truthfulness (but no extrinsic evid.)
b. conviction of crime, as allowed under 609
c. bias or interest not allowed
d. contradiction, uncertain
c. Operates in same way as FRE 404 and 405 operate
1. extrinsic evid allowed where char evid allowed
2. foundation requirement same
3. if opinion, cannot delve into the factual bases for their opinion (specific acts)
d. Difference b/t 608(a) and 404-405
1. any evid may be impeached
2. can only use evid of good character after an attack on truthfulness
3. no door-opening by a party
e. different from C.L.
1. only char for truthfulness, not gen’l bad character
2. C.L. only allowed reputation evid, not opinion
2. FRE 608(b).
a. prohibits the use of extrinsic evidence of specific acts to prove character for
truthfulness to show dishonesty or honesty on the witness stand.
b. 608(b)(1) permits inquiry into a witness’s own acts during exam of that witness
1. examiner may not challenge the witness’s answer w/ extrinsic evid
2. the specific acts must relate to character for truthfulness
a. No limit to admissibility of evid of good acts to only after witness’s char.
has been attacked; but Cts may use 403 to prohibit pre-impeachment
efforts to bolster a witness’s credibility.
3. court has discretion to not allow the inquiry if not very probative
a. concern is w/ witness’s current character, so often old acts not admissible
1. old FRE required the act be “not remote in time.” now, ct often use
analogy to Rule 609’s ten year requirement
b. other 403 concerns could also be basis for exclusion
4. Examiner must have good faith basis for believing that the act occurred
a. A party that suspects that the opponent ask a specific acts quest w/out a
factual basis for the inquiry may request a hearing on the matter outside
the presence of the jury
c. 608(b)(2) permits inquiry, during exam of a char witness, into specific acts of the
person about whose character the witness has testified, to test the witness’s
knowledge of the reputation or basis for the opinion.
1. same limitations apply here as they do to 608(b)(1)
30
2. identical to process for impeaching character witnesses under 405(a)
3. 608(b) allows use of specific acts to show action in conformity; 404 -5 don’t!!
b. FRE 609. Permits impeachment by evid of certain types of convictions
1. Types of convictions allowed
a. Convictions of serious crimes, i.e., crimes punishable by death or imprisonment in
excess of one year (felonies);
1. admissibility to impeach is subject to a balancing test:
a. for all witnesses, except crim. D, the test is 403
b. for crim D’s, it is a reverse 403 balancing test; favors exclusion and puts
burden on Pros. to justify admissibility
b. convictions for crimes of dishonesty and false statement regardless of seriousness
1. automatically admissible to impeach a witness, if fall w/in time limit in 609(b)
2. what constitutes a crime of “dishonesty or false statement”?
a. Notes: perjury, subornation of perjury, false statement, criminal fraud,
embezzlement, false pretense
b. some jurisdictions look to specific crim act, others at statutory elements.
2. No prohibition against use of extrinsic evidence
3. 906(b) Time limit
a. if fall outside of 10 yr. time limit, all convictions are subject to reverse 403 test
4. Motion in limine:
a. Crim. D may file motion in limine seeking an advance ruling on whether prior
convictions will be admissible against them
1. judge has no obligation to rule on the motion b/f D decides whether to testify
6. Impeachment and Rehabilitation with a Witness’s Prior Statements
a. FRE 613: procedure by which an examiner may introduce evid of a witness’s prior
inconsistent statement for the non-hearsay purpose of impeaching witness’s credibility
1. FRE 613(a): makes it clear that the examiner need no disclose the contents of a prior
statement to the witness b/f asking whether the witness made the statement.
a. opposing counsel has the right, upon request, to learn of the statement; protects
against insinuations that a statement has been made when it has not.
b. some courts, under 611(a), prohibit introduction of extrinsic evid of prior
inconsistent statements that they made no effort to explore w/ W on cross
2. FRE 613(b) Extrinsic evidence of prior inconsistent statement
a. extrinsic evidence of inconsistent statements may be admissible
1. in most instances, there is a two-fold condition:
a. W must have an opportunity to explain the statement
b. opposing party must have an opp. to explore the inconsistency w/ W
2. But, judge can also allow the evid if “the interests of justice” require it
a. allows extrinsic evid in situations where it is not possible to give W an
opportunity to explain the apparent inconsistency,
3. Also, the condition doesn’t apply if the statement is an admission under
801(d)(2).
b. liberalizes the C.L. rule which imposed a rigorous foundation requirement as a
condition for introducing extrinsic evid of an inconsistent statement.
1. some courts, under 611(a), prohibit introduction of extrinsic evid of prior
inconsistent statements that they made no effort to explore w/ W on cross
-- safe course to take is to lay the trad. C.L. foundation and bring up on cross
2. some cts won’t admit statement if W has admitted to it; should apply 403: if
31
witness tried to minimize the inconsistency , extrinsic evid should be allowed
c. 403 Concerns
1. Risk of unfair prejudice: risk jury will use the statement for an improper
substantive use (truth) when the statement relates to an issue in the lawsuit
a. however, the risk of unfair prejudice will seldom be a basis for exclusion
b/c most prejudicial statements also the most probative (403 favor admiss)
2. Where claim of loss of memory seems plausible, no inconsistency so
statement has relatively low prob value and high prejudice (good 403 arg.)
3. Inconsistent statement about collateral matters; probative value may be so low
that 403 efficiency concerns should require its exclusion
b. Impeachment of Experts w/ Statements in Treaties
1. B/f FRE, statements in learned treatises were frequently admissible for the nonhearsay purpose of impeaching or rehabilitating the credibility of an expert witness
a. witness had to acknowledge either reliance on the treatise or that the treatise was
authoritative; in effect, adopting the statements of the treatise
b. expert could try to account for the apparent inconsistency
c. only a few jurisdictions recognized a hearsay exception for learned treatises
2. FRE 803(18) contains a relatively broad hearsay exception for learned treatises
a. doesn’t require that any particular expert rely on or acknowledge the treatise as
authoritative, nor does it require that the statements in the treatise be inconsistent
w/ any expert’s testimony
b. if a statement is admissible for its truth, no need to consider admissibility for
impeachment purposes.
c. Prior Consistent Statements
1. Admissibility for truth pursuant to 801(d)(1)(B)
a. only FRE dealing w/ prior consistent statements is 801(d)(1)(B), which exempts
from the def. of hearsay a consistent statement offered to rebut an express or
implied charge of recent fabrication or improper influence or motive.
b. makes the statements admissible for their truth, not just to rehabilitate (C.L.)
c. Tome, S.Ct. held 801(d)(1)(B) incorporates the common law requirement that the
consistent statement must have been made prior to the time that the motive to
fabricate or improper influence arose
d. what is an implied charge?
1. most C.L. courts did not regard evid of a mere inconsistency to be an implied
charge of recent fabrication or improper influence; so couldn’t rehabilitate
2. reasons not to incorporate the C.L. def of implied charge:
a. reliance on C.L. to restrict admissibility under FRE is inconsistent w/ FRE
b. the distinction b/t mere inconsistency and express or implied charge is
largely nonexistent
2. Admissibility to rehabilitate pursuant to 401-403
a. FRE does not address whether prior consistent statements that do not meet the
Tome-801(d)(1)(B) criteria may be admissible for the non-hearsay purpose of
rehabilitating a witness.
b. One view: 801(d)(1)(B) is merely a hearsay exemption; since no rule restricting
the use of prior consistent statements for non-hearsay purposes, admissibility to
rehabilitate should be governed by 401-403.
c. Contrary view: implicit in 801(d)(1)(B) is a prohibition against the use of prior
consistent statements that do not meet its requirements
32
-- purpose of the rule was to eliminate the need for a confusing limiting instruct.
3. Extrinsic evidence
a. If a prior inconsistent statement is admissible, there is no prohibition against or
limitation on proof by extrinsic evidence.
b. Typically, party will be able to elicit the statement from a friendly witness
7. Other Impeachment Techniques:
a. Generally: attacking witness credibility other than by character or inconsistent statement.
1. FRE don’t specifically address these impeachment techniques
2. courts rely on 401-403 to determine the admissibility of evidence
b. Bias
1. a specific, concrete motive for fabricating testimony or being less than fully candid
2. Abel, S.Ct. upheld the C.L. rule permitting proof of bias w/ extrinsic evid, under FRE
3. Despite Abel, rt. to introduce extrinsic evid of bias in no automatic under FRE
a. some Fed. Cts hold that when the evid of bias is W’s prior statement, extrinsic
evid of the statement is not available unless W first given opp. to explain or deny
b. possibility of a successful 403 obj.
1. typically, evid of bias is highly probative, but if W fully admits the bias or if
the evid suggests little about W’s bias, ct should probably sustain a 403 obj.
2. evid of bias may also raise a 403 issue of unfair prejudice
4. Bias v. Character
a. extrinsic evid of W’s conduct is admissible to prove bias, but not char. [608(b)]
b. Abel suggested, but didn’t decide, that 608(b) prohibition against extrinsic evid
to prove char shouldn’t apply when the evid is relevant and admiss. to show bias
c. if evid suggests that W has a particular concern about or interest in the present
litigation, evid has relatively high prob. value on the quest. whether W’s
testimony is tainted
d. if only reasonable inference form the evid. is that W has a gen’l lack of integrity
or disregard for the truth, the prob. value of the evid is low
5. Hearsay Issues
a. if party attempts to bribe a W, evid of attempted bribe is admissible, regardless of
whether the party is a witness;
1. since conduct is not likely an assertion of guilt, probably not hearsay
2. if hearsay, admissible against the party as an admission [801(d)(2)(A)]
b. if a W, not a party, the state-of-mind exception overcomes hearsay
c. Mental or Sensory Incapacity
1. any sensory or mental deficiency that inhibit W’s ability to perceive events accurately
or to remember and to narrate accurately is relevant to cast doubt on W’s credibility
2. subject to ct’s discretion to control mode of cross [611(a)] and to balance prob. value
against 403 dangers, it is permissible to inquire about these matters during the exam.
of the W whose sensory or mental condition is at issue
3. parties may also intro extrinsic evidence of a W’s mental or sensory incapacity b/c
not a general character trait.
a. in absence of exclusionary rule, admissibility turns on the application of 401-403,
611(a) and if expert test. is offered, 702-706.
d. Contradiction
1. proof of contradiction about a collateral matter arguably relevant to suggest W may
be wrong about other things, incl. the substantively imp.
a. however, in absence of many contradictions by same person only marginally
33
probative to impeach the witness’s credibility
2. 401- 403 governs the admissibility of evid of contradiction
a. courts applying 403 may permit cross-exam, but exclude extrinsic evid. to prove
the contradiction if it appears to have little probative value to impeach W
3. C.L. and some Fed. courts would exclude extrinsic evid to contradict by applying
the “no extrinsic evid to impeach on a collateral matter” rule
a. what is NOT “collateral”
1. facts relevant to the substantive issues in the case
2. facts relevant, apart from the contradiction, to impeach the credibility of a
witness, if extrinsic evid would be admissible for that impeachment purpose
3. facts recited by W that, if true, logically undermine W’s story
b. test for “collateralness”
1. could the fact have been proven w/ extrinsic evid for any purpose except to
show a (mere) contradiction?
C. The Voucher Rule
1. FRE 607. Abolishes the C.L. voucher rule
a. now, credibility of a W may be attacked by any party, incl. the party calling the W.
b. some courts prohibit a party from impeaching a witness on cross if they regard the
impeachment as a subterfuge to get otherwise inadmissible evid. before the jury
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VI.
Opinion Testimony
A. Expert Witnesses
1. FRE 702
a. qualif. of W treated as a 104(a) issue
2. At C.L., expert opinioncould only be based on admissible evid.
a. But, expert not likely to have 1st hand knowledge, so typically would have other
witnesses lay out facts and then call expert W and ask hypo w/ all the pertinent facts
b. What if expert W relied on someone who is unavailable?
1. either expert would have to lie, strike evid., or limiting instr.
3. FRE wanted experts to be able to rely on non-admissible evid.
a. FRE 703 experts can base opinion on inadmissible evid, if the kind usually relied upon
b. FRE 705: expert does not have to provide basis for decision b/f rendering it
4. Conflict
a. 703 becomes conduit for getting inadmissible evid b/f jury, including hearsay
b. Approaches
1. evid must by the type usually relied upon by experts in the field, so more reliable
2. some commentators uneasy about judges nitpicking the evid experts rely on b/c
second-guessing what reasonable for expert to rely on; essentially negates 703
3. limiting instruction: cannot consider the hearsay evid for its truth, but only for its use
in evaluating the opinion (non-sensical)
a. A more coherent instruction: evid admitted for some other purpose than
evaluating the opinion (although logically coherent, jury can’t practically follow)
c. FRE added an amendment, which creates a reverse 403 balancing test (favors exclusion);
but won’t the evid almost always be critically imp. to evaluate the expert’s testimony?
--almost never exclude evid.
B. Lay Opinion
1. FRE 701
a. allows expert testimony if:
1. rationally based on the perception of the witness; and
2. helpful to a clear understanding of the witness’s testimony or the determination of a
fact at issue; and
3. not based on scientific technology
b. Rule wants best evid given to jury to help jury get an understanding of facts to
make good finding
1. W could NOT testify: “the staircase was unsafe”
2. W could testify to what actually saw, i.e., boards loose, nails sticking out, etc.
2. At C.L., impermissible for lay witness to give testimony; FRE more liberal approach
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