Relevancy (Rule 401 – 402) ........................................................................................................................... 3
Rule 403: Probative Value and the Rule 403 Dangers ................................................................................... 4
c. Rule 403 dangers......................................................................................................................................... 5
III. Laying the Foundation for Proof..................................................................................................................... 6
a. Laying the Foundation for Witnesses ......................................................................................................... 6
i.
FRE 601: Competency ........................................................................................................................ 6
ii.
FRE 602: Lack of Personal Knowledge.............................................................................................. 7
iii.
FRE 601, 602, 603 taken together ...................................................................................................... 7
iv.
FRE 603: Oath or affirmation ............................................................................................................. 7
b. Laying the Foundation for Authentication and Identification of Exhibits.................................................. 8
i. FRE 901(a)( & (b): Authentication and Identification of Exhibits ......................................................... 8
ii. FRE 902: Self-Autheticating Documents ............................................................................................. 10
c.
FRE 104: Judicial Determination of Preliminary Questions ................................................................ 10
IV. FRE 1001 -1007: The Best Evidence Rule and Additional Provisions ........................................................ 11
a. FRE 1001: Best Evidence Rule................................................................................................................. 11
b. FRE 1002: Requirement of Original; Former Testimony; Depositions.................................................... 12
c. FRE 1003: Admissibility of Duplicates .................................................................................................... 12
d. FRE 1004: Admissibility of Other Evidence of Its Contents ................................................................... 12
e. FRE 1005: Public Records ........................................................................................................................ 13
f. FRE 1006: Summaries .............................................................................................................................. 13
g. FRE 1007: Testimony or Written Admission of Party ............................................................................. 13
h. FRE 1008: Functions of the Court and Jury ............................................................................................. 14
V. The Character and Propensity Rules ............................................................................................................. 14
b.
FRE 404 & 405: Evidence of a Person’s Character Used to Show Action in Conformity with That
Character ................................................................................................................................................... 14
ii. FRE 404 – Character evidence not admissible to prove conduct; exceptions, other crimes ................ 14
iii. FRE 405: Methods of proving character .............................................................................................. 18
VI. FRE 412-415: Sexual Behavior, Sexual Assault and Child Molestation..................................................... 21
a. FRE 412: Relevance of Alleged Victim’s Past Sexual Behavior or Alleged Sexual Predisposition ....... 21
b. FRE 413-415: Evidence of Similar Crimes in Sexual Assault and Child Molestation ............................ 23
VII. FRE 406: Habit and Routine Practice ........................................................................................................... 24
VIII. FRE 407-411: Evidence Inadmissible to Prove Fault or Liability ............................................................... 26
a. FRE 407: Subsequent remedial measures ................................................................................................. 26
b. FRE 408: Compromise and Offers of Compromise ................................................................................. 28
c. FRE 409: Payment of Medical or Similar Expenses ................................................................................ 28
d. FRE 410: Withdrawn Guilty Pleas, Pleas of No Contest, and Offers to Plead Guilty ............................. 29
e. FRE 411: Liability Insurance .................................................................................................................... 31
IX. Two Issues that NO Federal Rule of Evidence Addresses ........................................................................... 31
a. Similar Happenings ....................................................................................................................................... 31
X. HEARSAY RULES: SEE ATTACHED SUPPLEMENT ........................................................................... 32
XI. Impeachment ................................................................................................................................................. 32
b.
FRE 607: Who May Impeach ........................................................................................................... 34
c.
FRE 608: Character Evidence – Impeachment and Rehabilitation .................................................. 34
ii.
FRE 608(a)(1) & (2) : Opinion and Reputation Evidence of Character ........................................... 34
iii.
FRE 608(b)(1) & (2): Specific Instances of Conduct ....................................................................... 35
iv.
FRE 608(b)(2): Specific Instances of Conduct ................................................................................. 37
I.
II.
d.
FRE 609: Impeachment by Evidence of Conviction of Crime ................................................................. 37
ii. FRE 609(a): The General Rule ............................................................................................................. 37
iii. FRE 609(b): Time Limts ...................................................................................................................... 38
e. FRE 613: Witness’s Prior Statements – Impeachment and Rehabilitation............................................... 40
ii. FRE 613(a): Examining Witness Concerning Prior Statements ........................................................... 40
iii. FRE 613(b): Extrinsic Evidence of Prior Inconsistent Statement of Witness ...................................... 40
iv.
Prior Consistent Statements .................................................................................................................. 42
f. Other Impeachment Techniques ............................................................................................................... 43
i. Bias ....................................................................................................................................................... 43
ii. Mental or Sensory Incapacity ............................................................................................................... 45
iii. Contradiction ........................................................................................................................................ 45
XII. FRE 701-705: Lay Opinions and Expert Witnesses ..................................................................................... 46
a. FRE 701: Lay Opinion .............................................................................................................................. 46
b. FRE 702: Testimony by experts ............................................................................................................... 47
c. FRE 703: Bases of Opinion Testimony By Experts ................................................................................. 49
d. FRE 704: Opinion on Ultimate Issue ........................................................................................................ 49
e. FRE 705: Disclosure of Facts or Data Underlying Expert Opinion ......................................................... 49
I.
Relevancy (Rule 401 – 402)
a. General
i. Rule 401: Definition of Relevant Evidence
1. 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 probably
than it would be without the evidence
ii. The judge makes its determination under Rule 104(a).
iii. Only relevant evidence helps the jury achieve rational outcomes, meaning outcomes
based on the jurors’ use of their reasoning capacity
iv. Only relevant evidence is admissible
v. “Immaterial” is the common law parlance for “irrelevant”
b. Rules
i. FRE 401 – “Relevant Evidence” means 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 without the evidence
ii. FRE 402 – All relevant evidence is admissible, except as otherwise provided by the
Constitution of the United States, by an Act of Congress, by these rules, or by other rules
prescribed by the Supreme Court pursuant ot statutory authority. Evidence which is not
relevant is not admissible.
c. Interpretation of FRE 401 and 402
i. Their must be a logical process of deduction from the EF(Evidentiary Fact) to the FOC
(Fact of Consequence) to the EE (Essential Element as defined by the cause of action).
1. Several other Inferrential Facts (IF) can be made
2. i.e. EF  FOC  EE
d. Relevant Evidence must make a FOC more or less probable
i. Probability is determined from Knowledge and Experience
1. Jury uses its various knowledge and backgrounds
2. Advisory note to FRE 402: “principles evolved by experience and science,
applied logically to the situation at hand.”
e. Relevancy requires reasonable generalizations
i. In other words, “whether a reasonable person might believe the probability of the truth of
the consequential fact to be different if that person knew of the proffered evidence.”
ii. Two exceptions to the “reasonable juror” test:
1. The necessary generalizations cannot be known to the judge to be false (“people
can see through brick walls”)
2. The necessary generalizations cannot be speculation (“people with red hair are
more aggressive than brown-haired people”)
iii. The exceptions are to hinder prejudices
f. FRE 401’s minimal standard of “Any Tendency”
i. FRE 401 defines relevancy as “any tendency to make the existence of any fact . . . more
or less probable.”
1. Therefore, if even a slight bit more probable, it should be allowed
2. This is because judge’s can’t make any assumption as to what others know as
anyone else can
II.
ii. The relevance of evidence is determined by whether the evidence could (not would)
influence a reasonable juror or reasonable jury.
g. Direct v. Circumstantial Evidence
i. Relevant evidence can be either direct or circumstantial
ii. Direct Evidence – Evidence that, if believed, establishes an essential element.
iii. Circumstantial Evidence – The evidence presented requires several intervening
inferences to reach the essential element.
1. Therefore, all that differentiates these pieces of evidence is the length of the
inferential chain.
h. Background Information
i. “Background information about the witness who is testifying is “always admissible . . . it
allows the jury to make better informed judgments about the credibility of a witness and
the reliability of that witness’ observations.”
ii. Advisory Committee Note to FRE 401 explicitly allows consequential evidence (that
which explains a situation better)
i. Elaboration of FRE 401 and 402
i. Knapp v. State:
1. App. Convicted of 1st degree murder and plead self-defense. Testified he had
heard from “someone” in town that sheriff had beaten an old man to death to
show he was afraid of sheriff. State was allowed to introduce evidence that the
old man died of alcoholism and senility. App. appeals b/c he thinks the only
important evidence was that he “heard” the story. Held, not error to introduce
state’s evidence because it negates what the app. was likely to have actually
heard.
Rule 403: Probative Value and the Rule 403 Dangers
a. Rule 403 – Exclusion of relevant evidence on grounds of prejudice, confusion, or waste of time
i. Although relevant, evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the
jury, or by considerations of undue delay, waste of time, or needless presentation of
cumulative evidence
b. Illustration/Examination
i. Relevant evidence is to be excluded only if its probative value is substantially
outweighed by one of the rule’s articulated dangers
ii. Probative Value
1. The judge must first analyze the persuasive effect that the item of evidence will be
likely to have on the jury’s thinking about the fact of consequence it is offered to
prove
iii. Strength of the underlying inferences
1. Most courts and commentators agree that the primary measure of probative value
is the strength of the inferences that connect the evidentiary fact to the fact of
consequence and then to an essential element of the case
iv. Certainty of the starting point
1. How certain is the starting point in the inferential chain is important for affecting
the probative value
2. However, judges are admonished not to make judgments as to believability.
Judges must estimate the probative value of statements as if they were to be
believed.
v. Need
1. Advisory Committee notes also say that, alongside probative value, judges’ are to
balance the need for the evidence.
2. The lack of alternative forms of proving a fact of consequence can also raise the
probative value of an item of evidence “in the relative sense, as being determined
by supply and demand.”
c. Rule 403 dangers
i. Unfair Prejudice
1. The term refers to the danger that evidence might suggest an improper basis upon
which the jury could decide the case.
2. Evidence is not unfairly prejudicial simply because it is detrimental to a party’s
case.
3. Two principals judge this issue:
a. Evidence about a party can trigger a response that has nothing to do with
its logical connection to a fact of consequence (often emotionally)
b. Evidence can be used in a manner that violates an evidence rule. For
example, the violation of establishing an inference that shows that past
actions are in conformity with character
ii. Confusion of the issues
1. Evidence can confuse an issue when it focuses the jury’s attention too closely on a
factual issue that is not central to the outcome of the case.
a. These are termed “collateral” issues – their connection to the essential
elements is trivial and may be based on complicated to attenuated theories
of relevance.
iii. Misleading the Jury
1. Often no distinction made between confusion and misleading.
2. Usually, misleading refers to the risk that jurors will draw a mistaken inference.
3. Evidence can also be misleading because jurors have a problem estimating its
persuasive force.
a. Scientific evidence and expert testimony can also appear overpersuasive.
iv. Undue Delay, Waste of Time, and Needless Cumulative Evidence
1. Evidence may not be excluded solely to avoid delay . . . under Rule 403, the court
should consider the probative value of the proffered evidence and balance it
against the harm of delay.
2. Evidence may waste the jury’s time if offered to prove stipulated, collateral, or
background facts.
d. Probative Values “substantially outweighed” by Rule 403 dangers
i. Generally: What is the likelihood that the “bad” aspect of evidence will seriously
dominate the mind of the jury, overwhelming the “good” aspect?
ii. Evidence should be excluded only when the judge is quite confident that the prejudicial
aspects of the evidence outweigh its probative value
e. The Effect of Limiting Instructions on the Balancing Process
III.
i. FRE 105 – When evidence which is admissible as to one party or for one purpose but not
admissible as to another party or for another purpose is admitted, the court, upon request,
shall restrict the evidence to its proper scope and instruct the jury accordingly
a. Judge may give a limiting instruction that directs the jury to consider the
evidence only for its proper use
b. May serve to emphasize the inadmissible evidence, which may be more
damaging than simply letting the matter go unnoticed
c. Courts assume that these instructions are effective
f. Notes
i. Rule 403 can often be used to exclude gruesome photographs, etc.
g. Old Chief v. United States (FRE 403)
i. Old Chief was arrested and charged under a statute that said if convicted of a crime
punishable by more than one year and possession of a firearm, he’s guilty. He wanted to
reduce the evidence to stipulate he had been convicted of the crime punishable by more
than one year, not that he had been convicted of assault – he thought this would add
unfair prejudice by the jury forming a character judgment. Held, the failure of the court
to stipulate to this evidence is reversible error. (1) Under Rule 403, alternative forms of
evidence can be compared (as opposed to Rule 401) to determine the least prejudicial
type. In this way, Old Chief wins. (2) However, sometimes some prejudicial evidence
can be used to tell a story and connect inferences in a logical sequence. “A convincing
tale can be told with economy, but when economy becomes a break in the natural
sequence of narrative evidence, an assurance that the missing link is really there is never
more than second best.” (3) Here, the nature of the crime could be shown by the
stipulation, and the name of the crime, assault, was not needed to satisfy the statute or aid
the jury in determining whether Old Chief was guilty. (4) Therefore, the risk of unfair
prejudice did substantially outweigh the discounted probative value of the record of
conviction, and it was an abuse of discretion to admit the record when an admission was
available.
Laying the Foundation for Proof
a. Laying the Foundation for Witnesses
i. FRE 601: Competency
1. Every person is competent to be a witness except as otherwise provided these
rules. However, in civil actions and proceedings, with respect to an element of a
claim or defense as to which State law supplies the rule of decision, the
competency of a witness shall be determined in accordance with state law.
2. Key Points
a. FRE 601 establishes that all persons are competent to testify. In most
cases, facts that bear on competency will affect the weight of the witness’s
testimony, but not that ability to testify.
b. Particular challenges to the competency of individual witnesses may be
resolved as a matter of the trial court’s Rule 601 discretion, or under FRE
602, 603, and 403.
c. First sentence abolishes all categorical grounds of incompetence, except
where state law provides an exception to the rules.
i. FRE 605 and 606 prohibit the presiding judge or jury from
testifying
d. The FRE permit the jury to decide whether such status or interests of a
witness affect his/her credibility, whereas the categorical incompetencies
of statutes and the common law would have withheld witnesses form the
jury entirely.
i. FRE 603: abolishes the moral qualification of taking a religious
oath in favor of secular obligation to testify truthfully
e. Pg. 202-203: discussion of the mentally incompetent witness
f. Pg. 203: discussion of child witness
ii. FRE 602: Lack of Personal Knowledge
1. A witness may not testify to a matter unless evidence is introduced sufficient to
support a finding that the witness has personal knowledge of the matter. Evidence
to prove personal knowledge may, but need not, consist of the wetness’ own
testimony. This rule is subject ot the provisions of Rule 703, relating to opinion
testimony by expert witnesses
2. Key Points
a. FRE 602 requires that witnesses must have personal knowledge of the
matters about which they testify. The proponent of a witness must present
evidence sufficient to support a finding of the witness’s personal
knowledge, typically by having the witness testify that the witness saw,
heard, or otherwise perceived those matters
b. Requirement of Personal Knowledge
i. Percipient witnesses – eye witness or at the scene of the crime
1. This avoids hearsay or speculation
c. Requirement of Evidence sufficient to support a finding
i. Must meet “sufficiency” standard of proof (FRE 104(a))
ii. If the fact of personal knowledge is disputed by the opponent, then
final resolution of the question is given to the jury as part of its
decision-making role
iii. Usually all that has to happen is the proponent of the evidence ask
the witness of they saw or heard the events
iii. FRE 601, 602, 603 taken together
1. These rules require:
a. the witness has the capacity to accurately perceive, record and recollect
impressions of facts at the time of the event
b. The witness in fact did perceive, record and can recollect impressions of
having any tendency to establish a fact of consequence in the litigation
c. The witness declares that he will tell the truth, understands the duty to tell
the truth as well as undertstands the difference between the truth and a lie
or fantasy, and
d. The witness possesses the capacity to comprehend questions and express
himself understandably, where necessary with the aid of an interpreter
(Rule 604 – narration)
iv. FRE 603: Oath or affirmation
1. Before testifying, every witness shall be required to declare that the witness will
testify truthfully, by oath or affirmation administered in a form calculated to
awaken the witness’ conscience and impress the witness’ mind with the duty to do
so.
2. Other rules
a. FRE 604: Interpreters
b. FRE 605: Judge Can’t be a witness
c. FRE 606: Jury can’t be a witness
b. Laying the Foundation for Authentication and Identification of Exhibits
i. FRE 901(a)( & (b): Authentication and Identification of Exhibits
1. The Rule
a. (a) The requirement of authentication or identification as a condition
precedent to admissibility is satisfied by evidence sufficient to support a
finding that the matter in question is what its proponent claims to be
b. (b) By way of illustrations only, and not by way of limitation, the
following are examples of authentication or identification conforming with
the requirements of this rule:
2. Key Points
a. Real evidence is a tangible exhibit that played some role in the events that
are in dispute at trial
b. Real evidence is usually identified pursuant to FRE 901 by testimony
concerning a readily identifiable characteristic of the exhibit or its chain of
custody. Testimony concerning chain of custody may also be necessary to
establish the exhibit’s unchanged condition.
c. Pursuant ot FRE 901(a), the judge must decide whether there is evidence
sufficient to support a finding of the exhibit’s identity and unchanged
condition
3. Proponent of the exhibit must do two things:
a. To articulate what it is the proponent claims the exhibit to be
i. This is the time to articulate the connection between the item and
how it connects to the people or events
b. To produce testimony “sufficient to support a finding” that shows what the
exhibit is
i. This just means evidence that proves that what you’re introducing
is what you say it is. It is someone’s signature, it is a rental
agreement, etc.
4. General notes
a. Examples in 901(b) are not exhaustive of things that would satisfy the
requirements
b. Judicial Determinations of Sufficiency Under FRE 901(a)
i. Evidence upon which the judge thinks a jury could reasonably find
a fact to be more likely true than not.
c. The Process of Laying the Foundation
i. You offer it into evidence
ii. You have a hearing where it is proved
iii. It becomes part of the record: ready for appeal process, etc.
5. Elaboration of FRE 901: Real and Demonstrative Evidence, Written Documents,
and Recordings
a. Real Evidence
i. Tangible items that played some role in the litigated event and
from which the jury can draw inferences
1. Weapons, home appliances, etc.
ii. Can be identified through a readily identifiable characteristic or
through a chain of custody
1. Under FRE 901, the complete chain of custody is not
always required
b. Demonstrative Evidence
i. General
1. Exhibits that reproduce or depict persons, objects, or scenes
that are connected the litigated events in the case
2. It is relevant b/c it its content is connected to the case and is
typically identified by a person with knowledge about he
nature of its content, and by the connection of that content
to the case
3. Demonstrative Evidence must assist the trier of fact
4. Must be prepared to show that it is a “fair, accurate, and
true” depiction of what it is claimed to portray
a. Demonstrative Evidence is identified pursuant to
FRE 901 by testimony as to what its contents are
claimed to be, that the witness has a basis for being
able to identify it, and that it is a fair and accurate
reproduction
5. Sometimes, evidence that is demonstrative might violate
FRE 403
a. E.g. photographs of gruesome injuries or an autopsy
ii. Demonstrations and Experiments in Court
1. FRE 403 can often be applied to demonstrations b/c of their
potential for confusing the jury
2. May lay foundation by establishing the demonstration is
similar to the actual event
iii. Recorded Simulations and Reconstruction of Events
1. Computer generated or animation, etc. are subject to the
same foundation of “fairness and accuracy” as a single
drawing would be
2. The principal risk is that the model simplifies the real world
events and that much data pertinent to accident
reconstruction may be unknown
3. Also, jurors might be misled to overestimate the value of
such things
iv. Written Documents
1. The rule provides several ways these can be identified as
accurate:
a. Signature
b. FRE 901(b)(4) – By its contents alone
c. FRE 901(b)(1) – Business records can be identified
by a custodian’s testimony
d. FRE 901(b)(7) – public records or reports
v. Ancient Documents
1. Over 20 years old, and must be in a place where it would be
likely to be if it were authentic
a. Pursuant to FRE 901(b)(8)
b. An extremely broad “ancient documents” exception
to the rule excluding hearsay, FRE 803(16),
provides for the admission of a document in
existence twenty years or more the authenticity of
which is established
vi. Electronic Documents
1. Raise problems with authenticity, but courts are more
confident than before
2. There is no mention in FRE 901(b)
vii. Recordings
1. Courts are very accepting of recordings if they are shown to
be accurate and real
2. When a percipient witness exists who has perceived events
outside the courtroom that witness can lay the foundation
for the recording
3. However, with a “silent witness” recording, the authenticity
of such recordings as an accurate representation of real
events requires reliance on the scientific theory of the
operation of the recording device, the qualifications of the
operator, the condition of the equipment, the unchanged
condition of the recording, and a chain of custody from the
recording device to the courtroom
a. Courts differ as to what degree they require these
things
4. Recordings can be authenticated by their content alone
c. FRE 901 Provides flexibility in application
i. Courts apply the standard of FRE 901(a) flexibly and don’t always
require that a particular subsection of 901(b) be satisfied
ii. FRE 902: Self-Autheticating Documents
1. General
a. Written Documents that are self-authenticating
2. Interpretation
a. These are basically documents that are so secure that it they are selfauthenticating
b. Self-authentication also does not resolve questions as to the source or
accuracy of information that is reported in the document
c. Objections can still be made to these documents, on the grounds they may
be inaccurate or that they are hearsay.
c. FRE 104: Judicial Determination of Preliminary Questions
IV.
i. Questions of Admissibility Generally
1. In general, all preliminary questions are to be decided by the court
2. Trial judge applies the rules of evidence in order to determine whether items of
evidence offered by the parties should be admitted or excluded
3. The power of the court is subject to 104(b)
a. Under (b) the judge must still determine whether evidence sufficient to
support a finding of fact has been introduced
ii. FRE 104 - Establishes Two Standards for Deciding Preliminary Questions of Fact
1. 104(a) - The Court Decides the Preliminary Question Itself, Under a
Preponderance of the Evidence Standard
a. Preliminary questions of fact concerning the admissibility of evidence
shall be determined by the court
i. Judges are to decide these on a “preponderance of the evidence”
standard
ii. The preponderance standard ensures that before admitting
evidence, the court will have found it more likely than not that the
technical issues and policy concerns addressed by the FRE have
been afforded the consideration
b. The judge must be persuaded that it is more likely than not that the
preliminary fact is true
2. FRE 104(b) - The Court Screens the Preliminary Question, Under a Sufficiency of
the Evidence Standard, But Gives the Question to the Jury
a. Relevance of an offered item depends on a “condition of fact”
b. Judge determines only whether the proponent has introduced “evidence
sufficient to support a finding of the fulfillment of the condition.”
c. If there is sufficient evidence of this preliminary “condition of fact,” the
judge will admit the offered item and leave it to the jury to decide the
preliminary question
iii. The Difference Between FRE 104(a) and 104(b)
1. Under the lower standard of proof of 104(b), the evidentiary burden on the
proponent is lighter, and the more likely it is that the judge may find that the
evidence is “sufficient to support a finding” of the preliminary fact.
2. Under the higher standard of proof of the 104(a), the evidentiary burden on the
government is heavier, and the more likely it is that the judge may not be
persuaded by a preponderance of the evidence
FRE 1001 -1007: The Best Evidence Rule and Additional Provisions
a. FRE 1001: Best Evidence Rule
i. Theory: When a writing recording, or photograph is offered to prove its content, the
chances are good that the original will be more trustworthy than a copy
ii. The importance of the precise terms of writings in the world of legal relations, the
fallibility of the human memory as reliable evidence of the terms, and the hazards of
inaccurate or incomplete duplication are the concerns addressed by the best evidence rule
1. Preference for the production of originals
2. Can be excused and other “secondary” evidence of the contents can be admitted if
the absence of the original is explained or justified
iii. 1001(1): Writings and Recordings – Definition
iv. 1001(2): Photographs
v. 1001(3): Definition of Original
vi. 1001(4): Duplicates
b. FRE 1002: Requirement of Original; Former Testimony; Depositions
i. General
1. Original is required when proponent seeks to prove the contents of a writing,
recording, or photograph.
2. Best Evidence Rule does not apply when evidence is presented that a memo, etc.,
does NOT contain a particular matter
3. Rule Applies Broadly
ii. A writing is offered to prove its own content under FRE 1002, if:
1. The content of the writing, recording, or photograph is the event
a. E.g. an obscenity prosecution, a libel suit, etc.
b. When the terms of the writing are at issue, accuracy is important and the
original would be required
2. The writings, recordings, or photograph is the record of an event
a. E.g. a transcript of something, an officers report
b. If it is offered to prove what happened, the proponent would be offering it
to prove its contents and the original would be required
c. Also, if a writing is used as a record to prove an event, most probably it
reflect the heresay statement of its author and a hearsay exception must be
found as well.
3. Facts about the writing are not its “contents”
a. A writing is referred to, but it is a fact about the writing, not the precise
terms of its content – the original writing is not required.
b. Testimony about these items sometimes may be all that is necessary; often
originals are not required – e.g. “did you make a report?”
c. FRE 1003: Admissibility of Duplicates
i. Duplicates may be furnished instead of an original in most circumstances
ii. Duplicates may not be used if (1) the opponent presents evidence that disputes the
authenticity of the original, or (2) if other aspects of the original or duplicate –
incompleteness, erasures, defects – make it unfair for the proponent to use the duplicate
d. FRE 1004: Admissibility of Other Evidence of Its Contents
i. General
1. This is the standard catalog of common law exceptions that justify or explain why
a proponent should not be required to produce an original or duplicate
ii. 1004(1): Original Lost or Destroyed
1. Loss or destruction is often proved through evidence of a diligent but
unsuccessful search
2. Proof of loss or destruction is made pursuant to Rule 104a, supra
3. Destruction of the original in bad faith by the party or another person at his
instigation precludes introduction of secondary evidence of the contents by the
guilty party
iii. 1004(2): Origianal In Possession of Third Person Not Obtainable
1. If documents, etc., are in the possession of others, the court will probably require
the proponent to show that the originals cannot be obtained by judicial process or
procedures
a. Third PartyCan’t be subpoenaed, etc.
iv. 1004(3): Original in Possession of Opponent; Notice to Produce
1. If you give reasonable notice that the contents of a document in the opponents
possession will be used, and he fails to present it, then secondary evidence of its
contents can be used.
v. 1004(4): Collateral Matters
1. The original is not required when not closely related to a controlling issue
2.
e. FRE 1005: Public Records
i. Generally, you don’t need the original of a public recird if (1) the record has been
certified as correct under FRE 902 standards or (2) its been testified to as correct by
someone who has compared it to the original.
f. FRE 1006: Summaries
i. General
1. Permits the proponent of voluminous writing, recording, and photographs to
present the contents of these items in the form of a summary, chart, or calculation.
Proponent is obligated to produce the originals and to permit the opponent to
examine and copy them, obviously to check the summary for any errors or
inconsistencies and for purposes of cross-examination.
2. The originals must be admissible into evidence themselves in order to lay a proper
foundation for the summary.
ii. Types of Summaries
1. Summaries of voluminous documents are not admitted at trial
a. If a Rule 1006 summary or chart is offered as an exhibit in the place of
voluminous documents, the proponent must establish that the documents
underlying it are admissible in evidence
b. It is not appropriate for the court to give any kind of limiting instructions.
c. The summary or chart, not the underlying documents, is the evidence that
is to be considered by the fact finder
2. Illustrative Aids
a. Illustrative aids are not under 1006, but rather under 611(a) and 403
3. Analytic Summaries
a. Combination of a Rule 1006 and 611(a) aid
b. The raw data has been admitted, and this is a summary of that data
c. The summary is not independent evidence of its subject matter . . . it is
only as valid and reliable as the underlying evidence it summarizes and the
jury is the ultimate judge of its accuracy
g. FRE 1007: Testimony or Written Admission of Party
i. The contents of a writing, recording, or photograph may be proved without accounting
for the nonproduction of the original by the testimony or deposition of the party against
whom offered or by his written admission.
1. Irregardless of whether the original is available or not
ii. Oral admissions are not included under FRE 1007
V.
1. However, they are allowed if nonproduction of the original has been accounted
for, under FRE 1004
h. FRE 1008: Functions of the Court and Jury
i. Intepretation and Illustration of 1008
1. Preliminary questions of fact necessary to applying Rules 1001-1007 are
typically to be decided by the judge under FRE 104(a) prior to admitting
evidence of the contents of a writing. Examples:
a. whether a given item of evidence is an “original”
b. whether a given item qualifies as a duplicate and is thus presumptively
admissible;
c. whether a genuine question is raised as to the authenticity of the original
for purposes of FRE 1003
d. whether it would be unfair to admit a duplicate in lieu of an original as
provided for in FRE 1003
e. whether an orginal is lost of destroyed, and whether a diligent search has
been conducted for the original;
f. whether the proponent lost or destroyed evidence in bad faith
g. whether an original can be obtained by any available judicial process
h. whether an adverse party has possession or control over the original and, if
so, whether proper notice was given to that party
i. whether evidence goes to a collateral matter or to a controlling issue
ii. Three specific factual issues are for the trier of fact to determine
1. Judge applies the standard of 104(b) (lower standard) to the decision
2. See Seiler v. LucasFilm LTD. (706)
a. Man claims he lost originals, but the Empire Strikes Back copied his idea.
Judge requires originals, and decides that models made after Empire
Strikes Back are not admissible
The Character and Propensity Rules
a. General Relevance Rules
i. FRE 404-415
ii. NOTE: Courts and commentators frequently refer to the use of character evidence as
“propensity evidence” or as evidence that requires the fact finder to draw “propensity”
inferences
b. FRE 404 & 405: Evidence of a Person’s Character Used to Show Action in Conformity
with That Character
i. Character Evidence Overview
1. Character: Nature of a Person, Their Disposition
a. E.g. Peacefulness, Truthfulness
2. This is not reputation
a. Reputation is the community estimate of someone (which may enter under
FRE 405 and 608)
ii. FRE 404 – Character evidence not admissible to prove conduct; exceptions, other crimes
1. Character in General
a. Any party may introduce character evidence for impeachment and
rehabilitation purposes, to the extent allowed by FRE 607-609
b. The FRE do not define “character” or “character trait.” However,
character traits are qualities or aspects of a person that ten to have moral
overtones and, therefore, inherent prejudice.
2. Character in Civil Actions
a. Character is circumstantial when the inference suggests that a person’s
character or a particular trait of a person’s character makes it more
probable that the person acted or is acting consistently with that character
than it would be w/o such evidence
b. This type of evidence is not permissible in civil cases except to impeach or
support the character of a witness for truthfulness as provided in FRE 607,
608, 609, and 404(a)(3).
i. Habit of a person, and routine practice of an organization may be
admitted as provided in FRE 406
c. However, There is a minority rule that permits civil D’s to open the door
to character evidence if the civil action is based on culpable conduct
proscribed by the criminal law
i. This is followed in a few jurisdictions
3. FRE 404(a): prohibits the use of evidence of a person’s character to prove
action in conformity therewith.
a. General
i. The D’s and the prosecutions character evidence must tend to
establish a “pertinent” character trait
1. E.g. You can’t introduce honesty to show non-violence, etc.
b. FRE 404(a)(1): Character Evidence of The Accused
i. First:
1. In criminal cases, the Prosecution may not in the first
instance introduce evidence of a pertinent character trait of
the accused as part of the case in chief against him.
2. However, if the accused offers evidence of a character trait,
the P then can offer evidence of the SAME trait in rebuttal
ii. Second:
1. If evidence of a trait of character of the alleged victim of
the crime is offered by an accused and admitted under FRE
404(a)(2), evidence of the same trait of character of the
accused may be offered by the prosecution.
a. So the accused can’t attack a victim’s character trait
and expect to be shielded from having his trait
exposed.
iii. Must be in the form of either reputation or opinion testimony; can’t
be proof of specific instances of conduct, [FRE 405(a)]
iv. The P can introduce this evidence regardless of whether the
accused testifies at trial
c. FRE 404(a)(2): Character Evidence of the Alleged Victim
i. First:
1. Evidence of a pertinent character trait of the alleged victim
of a crime is circumstantial evidence admissible if offered
by the accused, or by the prosecution to rebut the evidence
of the accused
2. Evidence of specific acts is not admissible for the purpose
of showing character; proof must be by reputation or
opinion
a. FRE 405(a)
ii. Second
1. The Prosecution may introduce evidence of a homicide
victim’s character for peacefulness, if the defendant has
suggested that the victim was the first aggressor
d. The rationale for Restricting Evidence of a Person’s character
i. Weakness of the Propensity Evidence
1. The probative value of character evidence to show action in
conformity with character will seldom, if ever, be great.
a. People who are honest will sometimes be dishonest
ii. Low Probative Value of the Evidence to Prove Character;
Diversion from Main Issues
1. The inference from the evidence offered to what a person’s
character actually is may be weak. You don’t want to
divert the attention into several minitrials
iii. Bad Person Prejudice
1. May be unfairly prejudicial, particularly if it is evidence of
the character of a party to the lawsuit. The jury might
divide into moral qualities, and then use those as basis for
deciding.
iv. Moral Issue
1. It is simply wrong to base a conviction on the character of a
person as opposed to what that person has done
e. The rationale for the 404(a)(1) & (2) exceptions
i. The most controversial aspect of these rules is the recent
amendment to FRE 404(a)(1), which permits the prosecution to
introduce evidence of D’s bad character once D has presented
evidence as to the victim’s character
1. The amendment recognizes that opening the door to the
victim’s bad character is simply a way to open the door
(through comparison) to the D’s good character
4. FRE 404(b): Other Crimes, Wrongs, or Acts
a. Derivative of the rule that the prosecution can’t introduce evidence of a
character trait of the accused as part of its case in chief
b. Evidence of the commission of other crimes wrongs or acts by him is
inadmissible for the purpose of showing a disposition or propensity to
commit crimes
c. However, you can try to introduce these crimes for other purposes if they
are relevant for those purposes; the proponent must identify the other
purpose:
i. Proof of motive
d.
e.
f.
g.
ii. Opportunity
iii. Intent
iv. Preparation
v. Plan
vi. Knowledge
vii. Identity
viii. Absence of mistake or accident
ix. Existence of a Conspiracy
x. Person’s participation in a conspiracy
xi. Consciousness of guilt
xii. To corroborate crucial testimony
xiii. To rebut a defense of entrapment
However, introduction of the prior crimes for other purposes is subject to
FRE 403; Limiting instruction under FRE 105 should be accounted for as
“not going to the character of the accused.”
Three things necessary to admit evidence of bad acts for non-character
purpose:
i. The proponent must articulate some non-character purpose for
which the specific acts evidence is relevant.
ii. The proponent must introduce evidence that the person who
allegedly committed the act in fact did commit the act
iii. The proponent must be prepared to respond to a likely FRE 403
objection to the evidence
The Notice Requirement of 404(b)
i. “. . . shall provide reasonable notice in advance of trial, or during
trial if the court excuses pretrial notice on good cause shown, of
the general nature of any such evidence it intends to introduce at
trial.”
ii. Added in 1991 “to reduce surprise and promote early resolution on
the issue of admissibility.” No specific time limts, etc.
The permissible uses for specific acts evidence:
i. The list in 404(b) is not exhaustive. The list is, proof of:
ii. Additional permissible uses:
1. To complete the story of the crime on trial by placing it in
the context of nearby and nearly contemporaneous
happenings
a. Man shot wife and all other kids to prove he shot
this kid
2. To prove the existence of a larger plan, scheme or
conspiracy, of which the crime on trial is a part.
a. Each crime should be an “integral part” of the overarching plan
3. To prove other crimes by the accused so nearly identical in
method as to earmark them as the handiwork of the accused
4. To show, by similar acts or incidents, that the act in
question was nor performed inadvertently, accidentally,
involuntarily, or without guilty knowledge
5. To establish motive, but the evidence of motive must be
probative of the criminal
6. To establish opportunity, in the sense of access to or
presence at the scene of a crim or in the sense of possessing
distinctive or unusual skills, or abilities employed in the
commission of the crime charged
7. To show, without considering motive, that defendant acted
with malice, deliberation, or the requisite specific intent
8. To prove identity – which is rarely a distinct ground for
admission
9. To show passion or propensity for unusual and abnormal
sexual relations
iii. FRE 405: Methods of proving character
1. FRE 405(a): Reputation or Opinion; Specific Instances Permitted Only on
Cross-Examination
a. Proof of Character or a trait of character permitted under 404(a)(1), (2), or
(3) is confined to evidence of reputation and opinion; specific instances of
conduct are not admissible.
b. The trial court has discretion to limit the number of character witnesses
c. On cross-examination of a witness who has testified as to the reputation of
another with respect to a pertinent character trait, inquiry is of course
proper with respect to with whom, where, and when the reputation was
actually discussed and the nature of the relationship with the person about
whom testifying
d. Specific Instances of relevant conduct and rumors and reports thereof may
be brought out on cross-examination: the reputation or opinion witness
may be asked either “if he knows” or “has he heard” of such matters
i. Counsel must have a good faith basis for an inquiry; counsel may
be required to disclose this to the court (outside jury presence)
ii. Extrinsic evidence is not permitted with respect to the specific acts;
counsel must take the witness’ answer.
e. A limiting instruction may be needed under 105
f. Where character evidence has been offered in the form of reputation or
opinion, it may be rebutted by the testimony of other witnesses only in the
form of reputation or opinion
g. Advisory Committee Note states that where a pertinent character trait is
involved, “the opinion of a psychiatrist based upon examination or
testimony” is permissible under 405(a)
2. FRE 405(b): Character as an element; Specific Instances of Conduct
a. When character or a trait of character is itself an essential element of a
charge, claim or defense (civil or criminal), reputation, opinion, and
specific instances of conduct are recognized as a proper part of the case in
chief of the Prosecution
c.
d.
e.
f.
b. Advisory Committee presents two instances of such a situation:
i. The chastity of a victim under a statute specifying her chastity as
an element of the crime of seduction.
ii. The competency of the driver in an action for negligently
entrusting a motor vehicle to an incompetent driver.
c. Other situations:
i. Negligent Hiring
ii. Truthfulness in a perjury prosecution
iii. Truth is an essential element of a defamation defense
iv. Fitness or Character is an essential element in deciding whether to
award custody
v. Character for lack of care is an essential element in a negligence
claim
vi. When damages depend on decedent’s character in wrongful death
cases, this is an essential element of proof
The prohibition Against the Use of Specific Acts
i. FRE 404(b) prohibits the use of specific acts to prove character to show action in
conformity with character
ii. Although this seems counterintuitive, there are substantial FRE 403-type countervailing
concerns that justify excluding specific acts to prove character to show actions in
conformity with character
1. Bad Person Prejudice – the jury may just assume that through bad acts this is a
bad person
2. Confusion and Efficiency Concerns – Their would be lots of minitrials which
would consume time and resources and risk confusing the jury by focusing its
attention on the specific acts as opposed to the crime charged
3. Low Probative Value – the inference to character from one act is very weak; thus,
its not worth the time, resources, possible prejudice to introduce it
iii. Exceptions to the 404(b) prohibition
1. 608(b) & 609: explicitly authorize the use of specific acts to show actions in
conformity with charcter
2. 413-415: admissibility of sexual misconduct evidence also allows it
Probative Value of Opinion and Reputation Evidence to prove character
i. The probative value of someone’s opinion relies on many factors:
1. how long they knew them, how well they know them
ii. The FRE do not deal specifically with the foundation requirement for character
witnesses.
1. FRE 403 provides latitude for trial judges to exclude testimony that is marginally
probative b/c the witness does not have much of a bases for knowing or knowing
about the person in question.
Reputation v. Opinion Evidence
i. FRE 705: When a witness testifies in the form of opinion, it is permissible to inquire into
the underlying basis for the opinion on both direct and cross-examination
1. This allows for specific acts testimony
Unfair Prejudice Concerns: The prejudicial impact of specific acts questions
i. There is a two-fold risk of prejudice
1. Party may infer from the questions that the D is a violent, etc.
2. Jurors may also be willing to ignore a reasonable doubt if they regard D as a bad,
dangerous, etc., person
ii. Therefore, FRE 403 concern of unfair prejudice is out there b/c jurors may base there
conclusion not on legally recognized facts
iii. However, since 405(a) specifically authorizes these questions, and since high prejudice is
likely always to be a concomitant of high probative value with FRE 405(a) specific acts
questions, courts regularly permit the cross-examiner to ask character witnesses questions
that are in fact extremely prejudicial.
g. Preliminary Factfinding with regard to whether D committed bad acts
i. What proof do you need to have that the person committed the specific act?
ii. Supreme Court in Huddleston: only follow “evidence sufficient to support a finding” by
the propensity of the evidence standard.
1. Some state courts apply the 104(a) standard, and show (a) that the person
allegedly responsible for the act in fact committed the act; and (b) (if culpability
in the commission of the act is important to its relevance, as it usually is) that the
person did so culpably.
a. Rationale for using this standard: protect criminal D’s from the unfair
prejudice that inheres in the admission of D’s bad acts
h. Probative Value and Prejudice Generally
i. The term “may” in FRE 404(b) suggests that you must incorporate other evidentiary
rules, especially FRE 303. Factors include:
1. How probative the non-character purpose is of some contested issue in the case;
2. How probative the specific act is to prove the non-character purpose (e.g. whether
there is a sufficiently close temporal proximity between the specific act and the
crime charged)
3. How probative the evidence is to establish that the act occurred (e.g. whether
there is a dispute about the nature of the act or the D’s involvement in it)
4. How much of a risk of unfair prejudice would result from introduction of the
evidence (e.g. how heinous the act)
5. How effective a limiting instruction is likely to be in reducing the risk of unfair
prejudice
6. Don’t forget the risk of the “bad person” prejudice
7. Keep in mind that FRE 403 is a rule favoring admissibility (probative value must
be substantially outweighed by the countervailing facters), and there is a long
tradition of admitting prejudicial specific acts evidence for non-character
purposes.
ii. FRE 403 is seldom a barrier to the admissibility of specific acts evidence
i. FRE 403 and the Question Whether the Specific Act Evidence Is Offerred to Prove a Contested
Issue
i. The Noncontested Issue Scenario
1. When the evidence is offered to establish a proposition that is not seriously
contested in the case.
2. D is charged with selling heroin. D claims he did not knowingly sell it. P offers
evidence of a time two years ago when D sold heroin in order to show that D
VI.
knows what heroin is. D offers to stipulate to the knowledge requirement and
asks for a limiting instruction rather than allow the evidence
ii. The argument for exclusion
1. Even if one believes there is a strong inferential link between prior knowing sale
and present knowledge, the evidence, in context, appears to have low probative
value. The stipulation and jury instruction further decrease the need.
2. Then, against low probative value you weigh the FRE 403 risks of unfair
prejudice. (1) Bad person prejudice, and (2) D is the kind of person, because he
sold heroin before, that sells heroin.
iii. The impact of Old Chief in theory and in fact
1. In theory
a. Old Chief suggests that trial judges should be wary not to undervalue the
probity of bad acts offered by the prosecutor, even in cases in which
defendants are willing to stipulate to pertinent facts. In short, (see 295)
Old Chief arguably should have little or no impact on precedent for
excluding other crimes evidence in cases like the heroin hypo above.
2. In fact
a. With respect to 404(b) evidence to show knowledge or intent, most courts
that have considered the issue have concluded that Old Chief supports the
admissibility of such evidence.
b. Typically, the court begins with the observation that the stipulation does
not make the evidence irrelevant. They then identify a noncharacter
purpose for which the evidence is arguably relevant and conclude with
little or no detailed analysis that admission of the evidence was either
proper or at least not prejudicial error.
j. Multiple Specific Acts and the Anticoincidence Theory of Relevance
i. Basically, this is based on the generalization that if the specific acts are sufficiently
numerous and similar to the crime charged, “coincidence” or “randomness” is unlikely to
explain their occurrence.
ii. The ultimate conclusion is that when several similar incidents are presented, it seems
reasonable to believe that the D was culpably involved in one or more of the incidents,
even though we do not know which one(s).
iii. In short, under the FRE, admissibility of uncharged injury evidence in a hypo should ask
these questions:
1. Taking into account the anticoincidence theory of relevance, is there evidence to
support a finding that D was culpably involved in one or more of the prior
incidents, even if we are not sure which one?
2. To the extent that there is sufficient evidence to support such a finding, is the
evidence relevant ot prove something other than D’s character (e.g. absence of
accident, etc.)?
3. Assuming that there is a noncharacter purpose for which the evidence is relevant,
is the probative value of the evidence substantially outweighed by countervailing
FRE 403 factors?
FRE 412-415: Sexual Behavior, Sexual Assault and Child Molestation
a. FRE 412: Relevance of Alleged Victim’s Past Sexual Behavior or Alleged Sexual
Predisposition
i. Evidence that is offered to prove that any alleged victim engaged in other sexual behavior
or evidence offered to prove any alleged victim’s sexual predisposition is generally
inadmissible
ii. Relevance to prove conduct
1. 412(b)(1)(B) – Explicitly permits proof of sexual behavior between the D and the
alleged victim to prove the victim’s consent
a. There is no explicit limitation on the use of prior sexual conduct to prove
consent in civil cases.
2. Individuals have propensities to behave in characteristic ways and if we know
something about the individual’s conduct on some occasions, we can make
reasonable inferences about their conduct on other occasions
iii. The Scope of FRE 412
1. The Meaning of “Other Sexual Behavior” and “Sexual Predisposition”
a. Sexual behavior connotes all activities that involve actual physical
conduct or that imply sexual intercourse or conduct
i. Use of contraceptives, birth of an illegitimate child, or venereal
disease
ii. Activities of the mind – Fantasies or dreams
b. Evidence that does not directly refer to sexual activities or thought but that
the proponent believes may have a sexual connotation of the fact finder
2. The Applicability of 412 When the Issue Is the Victim’s Behavior on a Particular
Occasion
a. The theory of relevance will be that the evidence shows something about
the sexual predisposition of the individual and that from this
predisposition one can infer how the victim behaved on a particular
occasion.
3. The Applicability of 412 in Other Contexts
a. Sexual behavior includes activities of the mind, such as fantasies or
dreams
4. The Admissibility of Other Sexual Behavior and Sexual Predisposition Evidence
in Civil Cases
a. FRE 412(b)(2) governs admissibility of evidence of an alleged victim’s
sexual behavior and predisposition
i. Reverse 403 Test:
1. Requires that the probative value must substantially
outweigh countervailing factors
a. Favors exclusion
5. The Admissibility of Other Sexual Behavior and Sexual Predisposition Evidence
in Criminal Cases
a. Three Exceptions to the General Rules of Exclusion:
i. The victim’s behavior with third persons to suggest that they may
be the source of semen or injury
ii. The victim’s sexual behavior with the defendant to suggest consent
iii. Cases in which exclusion would violate the constitutional rights of
the defendant
1. Due process doctrine that a criminal defendant has the
constitutional right to a defense
2. The Sixth Amendment confrontation clause right to
confront and cross-examine witnesses
b. The first two exceptions are not automatically admissible
i. The evidence must be otherwise admissible under the rules
6. The Notice Requirement
a. Notice and hearing requirement is more demanding than any other notice
requirement in the Federal Rules
7. FRE 412 and the Constitutional Rights to Present Evidence and to Confront and
Cross Examine Witnesses
a. The right to present a reasonable defense takes precedence over the state’s
policy
b. The importance of the evidence is what triggers the constitutional right
c. Two Generalizations
i. The vast majority of constitutional challenges are unsuccessful
ii. The most common type of successful constitutional challenge
occurs in cases in which the defendant seeks to introduce the
evidence to impeach the alleged victim by showing bias
b. FRE 413-415: Evidence of Similar Crimes in Sexual Assault and Child Molestation
i. FRE 413: Evidence of Similar Crimes in Sexual Assault Cases
1. In a criminal case in which the D is accused of an offense of secual assault,
evidence of the D’s commission of another offense or offenses
2. In a case in which the Government intends to offer evidence under the rule, the
attorney for the government must disclose the evidence to the D, including
statements of witnesses or a summary of the substance of any testimony that is
expected to be offered, at least 15 days before the scheduled date of trial or at
such later time as the court may allow for good cause.
3. FRE 413(c): provides specifically thathte rule “shall not be construed to limit the
advmission or consideration of evidence uner any other rule
4. Sexual Crime
a. Crime under federal law or a law of the state that involves:
i. Conduct proscribed chapter 109A of Title 18
ii. Contact, w/o consent, between any part of the D’s body or an
object and the genitals or anus of another person;
iii. Contact, w/o consent, between the gentals or anus of the D and any
part of another person’s body;
iv. Deriving sexual pleasure or gratification from the infliction of
death, bodily injury, or physical pain or another person; or
v. An attempt or conspiracy to engage in conduct described in
paragraph (1)-(4)
5. Reference Notes
a. Importance: evidence of the above crime is “admissible for any matter in
which it is relevant”
i. Propensity to commit similar offenses
VII.
ii. Assessment of the probability or improbability that the D has been
falsely accused
b. It is possible that the language “is admissible” makes other FRE such as
the hearsay rules or Rule 403 inapplicable
i. This interpretation HAS BEEN REJECTED – FRE 403 is
applicable
c. The Meaning of “Without Consent” in 413(d)(2) and (d)(3)
i. Legal consent
1. Sexual contact with a minor that was with the minor’s
actual consent, but not legal consent because of the minor’s
age
ii. Actual Consent
1. Prior sexual contact with other adults against their will
d. Limiting Instructions and Closing Arguments
i. No right to a limiting instruction and no restriction on the
prosecutor’s making a character/propensity argument to the jury
ii. FRE 414: Evidence of Similar Crimes in Child Molestation Cases
1. Just like FRE 413, only for Child Molestation as opposed to Sexual Assault
a. Child is a person below 14 years old
iii. FRE 415: Evidence of Similar Acts in Civil Cases Concerning Sexual Assault or Child
Molestation
1. In a civil case in which a claim for damagesor other relief is predicated on a
party’s alleged commission of conduct constituting an offense of sexual assault or
child molestation, evidence of that party’s commission of another offense or
offenses of sexual assault or child molestation is admissible and may considered
as provided in FRE 413 and FRE 414
2. A party who wants to use this evidence must disclose it to the party against whom
its offered, including statements of witnesses or a summary of the substance of
any testimony that is expected to be offered - at least 15 days before trial, unless
the court allows an extension.
b. Preliminary Fact Finding
i. There is no requirement that the sexual assault resulted in a conviction or even a criminal
charge. One must show that there is evidence sufficient to support a finding (104(b)) that
the D was culpably involved in the crime
FRE 406: Habit and Routine Practice
a. Rule Breakdown
i. Evidence of the habit of a person or of the routine practice of an organization, whether
corroborated or not and regardless of the presence of eyewitness, is relevant to prove that
hteconduct of the person or organization on a particular occasion was in conformity with
the habit or routine practice.
ii. Habit of an Individual
1. This is one’s regular response to a repeated specific situation to the extent that
doing the habitual response becomes semi-automatic and extremely regular
2. May be admitted only if a sufficient pattern of repeated responses is established
so that the conduct of the person can be considered a habit.
iii. Habit of an Organization
1. Routine practice of an organization may be admitted only if a sufficient pattern of
repeated responses is established to warrant a finding that the practice was routine
b. Reference Notes
i. Unlike the other rules of evidence, this is an admittance, not an exclusionary rule
ii. What the Advisory Committee says is NOT habit:
1. “Habit” of intemperance to prove drunkenness
2. Evidence of other assaults to prove this assault
3. Evidence of a religious “habit” to establish presence at a particular time
iii. The importance of Habit and Routine Practice Evidence
1. It may be probative if it shows that you respond in a certain situation routinely in
the same manner
iv. Methods of proving habit and routine practice
1. The introduction of testimony of a number of specific acts or to offer a summary
or “opinion” based on a large number of observations that are not individually
described.
a. FRE 602 and 701 in combination provide that an opinion of a non-expert
witness is admissible if based upon personal knowledge and helpful to the
trier of fact in determining a fact of consequence
2. Also, a proponent SHOULD NOT be allowed to use reputation evidence to prove
habit or routine practice
3. Proof of specific instances of conduct to establish habit or routine practice is
subject to FRE 403
4. FRE 602 and 701 in combination provide that an opinion of a non-expert witness
is admissible if based upon personal knowledge and helpful to the trier of fact in
determining a fact of consequence
v. The distinction between habit and character
1. Definitely happens more regularly than character trait
2. Both common usage and the case law suggest that habit refers to a propensity that
is much more specific and routine than a character trait.
3. Courts will usually consider evidence that someone acted “carefully and
cautiously” as a character trait – need more specificity
4. Also, activities that constitute a habit tend to be morally neutral
5. Therefore, the characteristics that differentiate habit from character are regularity,
specificity, and moral neutrality
vi. Judicial Fact Finding on the Question of Habit
1. First question is whether the activity is of the type that can qualify as a habit
2. If the answer is yes, must ask whether the witness’s testimony can establish that
X’s activity is sufficiently regularized to be her habit.
3. In situations where it is a close question (a) whether the type of activity fits into
the habit or routine practice category or (b) whether the particular case the
evidence is sufficient to establish the habit or routine practice, courts tend to
exercise fairly tight controls over the admissibility of the evidence
vii. The degree of regularity and specificity required for habit evidence
1. Note that the advisory committee note to FRE 406 gives two paragraphs: the
McCormick on Evidence passage suggests a broad view of what constitutes habit
and the Levin quotation seems to limit habits to involuntary, Pavlovian responses.
2. Examples from cases
a. 5th Circuit Jones: nine various safety violations over 29-year period not
evidence of a habit
b. DC Circuit Weil: passing off steroids as antihistamines not habit; habit is
something that occurs with “invariable regularity”
c. 7th Circuit Simplex Inc: supplier’s conduct in making late deliveries on
other contracts not a habit
d. Oregon Charmley: frequently crossing same intersection within unmarked
crosswalk is habit evidence
viii. The strategy for distinguishing between habit and character
1. The advocate who wishes to convince a judge that evidence should fall into one
and not the other category should follow a two-fold strategy:
a. First, it is important to look at the existing case law and draw analogies to
and distinctions from situations in which courts have designated evidence
as habit or character
b. Second, one should try to relate the desired classification to the
evidentiary justifications for having different rules for habit evidence and
character evidence in the first place
i. If it is consistent, regular, and specific, push for habit
ii. If there is a risk of unfair prejudice, or generalizations, seek for
character
VIII. FRE 407-411: Evidence Inadmissible to Prove Fault or Liability
a. General
i. Relevance rules that make evidence inadmissible to prove fault or liability, but that
permit such evidence for other purposes
ii. The federal rules prohibit evidence of X to prove liability or fault:
1. Subsequent remedial measures (FRE 407)
2. Compromises and Offers of Compromise (FRE 408)
3. Payment of Medical and other Similar expenses (FRE 409)
4. Liability insurance (FRE 411)
i. Rationale for rules
1. These rules typically have been excluded on the ground that we don’t want to
discourage individuals from engaging in socially desirable conduct
2. Regardless of deterrence, prejudice, or confusion, we don’t want to punish or
disadvantage individuals for doing good things
ii. These rules don’t exclude evidence altogether, they simply do so for the purpose of
PROVING LIABILITY OR FAULT
a. FRE 407: Subsequent remedial measures
i. Rule
1. Subsequent Remedial Measures, whether a change, repair or precaution, taken by
a party after an injury or harm allegedly caused by an event, that if taken
previously would have made the injury or harm less likely to occur, may not be
introduced to prove negligence, culpable conduct, a defect in the product, a defect
in a product’s design, or a need for a warning or instruction
ii. Overall issue
iii.
iv.
v.
vi.
vii.
viii.
1. When a person takes steps to alter a condition or object that caused an injury so as
to make future injury less likely, one possible inference to draw from the remedial
action is that the person who made the alteration believed that the object or
condition before the alteration posed an unreasonable risk of injury
Rationale
1. Even though such a measure if taken previously would have made the event less
likely to occur, the taking of remedial measures may be motivated by a desire to
exercise the highest care and thus in fact not be an admission of negligence or
culpable conduct
2. The taking of corrective steps likely to be overvalued by the jury should not be
discouraged by allowing evidence thereof to be introduced against the party
3. Postinjury advancement in the state of art
4.
Products Liability
1. FRE 407 makes it clear that its exclusionary mandate extends to subsequent
remedial measure evidence offered to prove product defects
Activities that may be subsequent remedial measures
1. Sending a memo to employees urging them to follow safety regulations
2. Repairing or altering the condition of property
3. Disciplining or firing an individual whose alleged negligence was responsible for
an accident
4. Sending a recall notice
5. Changing rules or regulations
6. Posting warning signs
Investigations
1. There is precedent for the proposition that FRE 407 does not apply to
investigations which are not remedial measures, but only “steps toward
ascertaining whether remedial measures are called for”
The timing of remedial action
1. The remedial action must occur “after an injury or harm caused by an event”
a. The purpose of this language is to make it clear that the rule applies only
to changes made after the occurrence that produced the damages giving
rise to the action
b. If the D took the remedial action subsequent to the injuries of several other
people but prior to the P’s injury, FRE 407 would not preclude
admissibility of the design change
The “if controverted” requirement
1. Advisory Note and Case Law indicate that the “if controverted” language
requirement applies to all of the permissible uses of subsequent remedial
measures
a. Thus, one should read this language as governing the offer of subsequent
remedial measure evidence not only to prove feasibility but also to prove
other purposes “such as . . . ownership or control.”
b. By the terms of the rule, this language does not apply to evidence offered
for impeachment
c. FRE 403 should be a basis for excluding evidence of a subsequent
remedial measure offered to prove an issue that is not controverted
ix. The relationship between FRE 407 and FRE 403
1. The question of offered evidence that goes to FRE 407 should turn on FRE 403
considerations:
a. Is the probative value of the evidence for the legitimate purpose
substantially outweighed by the possibility that the jurors may use the
evidence for the impermissible purpose of inferring negligence or other
culpable conduct
b. FRE 408: Compromise and Offers of Compromise
i. Rule
1. Neither an offer to compromise, acceptance of such offer, nor an actual completed
compromise of a disputed claim is admissible to prove liability for or invalidity of
the claim or its amount
2. Evidence of conduct or statements made in compromise negotiations is not
admissible
3. The rule does not require exclusion when the evidence is offered for another
purpose, such as proving bias or prejudice of a witness, negativing a contention of
undue delay, or proving an effort to obstruct criminal investigation or prosecution.
ii. Rationale
1. Irrelevancy: The offer or compromise may depending on the circumstances in
reality involve a purchase or attempt to purchase peace rather athan an admission
of liability, and;
2. Policy: Compromises favored by public policy would be discouraged by
admitting the evidence.
ii. Possible permissible uses for this type of evidence:
1. To show the bias of a witness who testifies for the P, the D may want to establish
that the settlement of that witness’s claim against the P includes a provision for
the P to pay to the witness a portion of any judgment obtained against the D
2. A municipality’s settlement of a police brutality action may be admissible to show
that the municipality knew of and condoned the officers conduct
3. Proof of negotiations and offers to compromise may indicate that a party was
acting in good faith to resolve a claim and thus rebut a charge of undue delay
4. Offers of compromise during an income tax audit may be admissible to show the
taxpayer’s knowledge and to rebit a claim of good faith in a tax evasion
prosecution
iii. Comparing with FRE 407
1. There is NO “if controverted” language in FRE 408
iv. Conduct or Statements during negotiations
1. Statements made outside of negotiation time period (before or after) are going to
be admissible
v. The attempt to resolve a disputed Claim requirement
1. If there is no disputed claim or if the statement of fault occurs outside the context
of compromise negotiations, the statement of fault is admissible
2. Make sure the conversation has “crystallized to the point of negotiations”
c. FRE 409: Payment of Medical or Similar Expenses
i. Rule
1. Evidence of furnishing, offering or promising to pay medical expenses occasioned
by an injury is inadmissible to prove liability for the injury
ii. The Impication of paying expenses
1. The implication, of course, is that paying or offering to pay someone else’s
medical expenses is an admission of fault: the payment raises the inference that
the payor feels responsible for the incident
iii. Rationale
1. Public Policy: We want people to assist with medical expenses
iv. Admissibility of Statements made in Conjuction with payment
1. FRE 409 and FRE 408 are very different – Statements made in conjuction with
the payment or offer of payment of medical bills are NOT EXCLUDED under
FRE 409
2. Still subject to FRE 403
v. Whether FRE 409 permits evidence of payment for purposes other than to show liability
1. There is precedent under the Federal Rules for admitting payments to prove
something other than liability
vi. “Similar Expense”
1. No very good explanation – one case suggests that when D offered to help pay to
clean up a fuel leak, this was not evidence of D’s culpability
d. FRE 410: Withdrawn Guilty Pleas, Pleas of No Contest, and Offers to Plead Guilty
i. Rule
1. In any civil or criminal proceeding evidence of (1) a plea of guilty later
withdrawn, (2) a plea of No Contest, (3) any statement made in the course of
proceedings under Rule 11 of the Fed Rules of Criminal Procedure or comparable
state procedure regarding either of the foregoing pleas, or (4) any statement made
in the course of plead discussions with an attorney for the prosecuting authority
which result in a plea of guilty later withdrawn, are not admissible against the D
who made the plea or was a participant in the plea discussions either as
substantive evidence or for impeachment.
2. However, such a statement is admissible (1) in any proceeding wherein another
statement made in the course of the same plea or plea discussions has been
introduced and the statement ought in fairness be considered contemporaneously
with it, or (ii) in a criminal proceeding for perjury or false statement if the
statement was made by the D under oath, on the record and in the presence of
counsel.
ii. Withdrawn Guilty Pleas
1. In order for a D to withdraw a guilty plea, there must be a court approved motion,
and there usually must be some “cause”
2. To the extent that the concern for allowing the removal of the plea was the D’s
due process rights, exclusion of evidence of the withdrawal may be necessary in
order to make the remedy of the violation meaningful
3. To the extend that the concern is with the reliability of the plea, the fact that a
judge has already determined that the plea was unreliable casts doubt on the
plea’s probative value
iii. Pleas of No Contest
iv.
v.
vi.
vii.
viii.
1. No contest pleas are acquiescence to a criminal conviction w/o admitting guilt or
innocence
a. Their compromise nature makes uncertain the probative value to prove
that the person committed the acts charged.
2. Moreover, to use a no-contest plea for this purpose would tend to undermine the
initial value of the pleas a device to encourage settlement
Statements Made in Conjunction with the Process of Making and Negotiating Pleas
1. Federal Rule of Crim Procedure 11, to which FRE 410 refers, excludes:
a. Statements made in Rule 11 plea bargaining proceedings, and
b. Statements made in the course of plea bargaining with prosecutors
2. We want to encourage plea bargaining
a. 70-95 % of all criminal cases are disposed of this way
Scope of FRE 410
1. Must be made “in the course of plea discussions”
2. The D’s statements must be made “to an attorney for the prosecuting authority”
a. Not to police officers
3. Also, substantial precedent indicates that statements will not be admissible if the
D or his attorney (as an agent) has a subjective belief that plea negotiations with a
prosecuting authority were taking place and if that belief was objectively
reasonable
The exception to FRE 410(3) & (4)
1. These enumerated exceptions will rarely be of consequence
a. The first merely acknowledges the rule of completeness encompassed in
FRE 106
b. The second in effect permits the prosecution to bring perjury charges
against a D who lies under oath during plea negotiations
i. Rarely are these under oath
Waiver of FRE 410’s exclusionary mandate
1. US v. Mezzanatto: SC holds that a D may waive the FRE 410(4)(statements in the
plea negotiations) exclusionary mandate, at least with regard to the impeachment
use of statements made in the process of plea negotiations
a. In dictum, J. Thomas suggested that the waiver would be valid even if it
were not limited to the impeachment use of the statements
b. At least two circuits (D.C. and 7th) have upheld waivers that allow
prosecutors to use FRE 410 evidence in their case in chief
c. This is awckward, b/c:
i. At least some D’s won’t enter into plea negotiations if they have to
have it as evidence
ii. Especially if this waiver becomes a standard prosecutorial policy
iii. However, if prosecutors can get waivers, maybe it will make them
more likely to enter into plea negotiations
Non-Party Witnesses and “against the defendant”
1. A non-party witness in a civil or criminal case may be impeached by a plea or
statement given under any of the circumstances in FRE 410
IX.
2. Also, a witness may be impeached by a statement given under any of the
circumstance FRE 410 if the statement is not “against” the interests of the
defendant
e. FRE 411: Liability Insurance
i. The Rule
1. Evidence that a person was or not insured against liability is not admissible upon
the issue whether the person acted negligently or otherwise wrongfully.
2. The rule doesn’t require the exclusion of evidence of insurance against liability
when offered for another purpose, such as: proof of agency, ownership, or control,
or bias or prejudice of a witness
ii. The exclusionary mandate
1. The probative value of this is weak compared to the other rules: The underlying
premise of the ionference is that people w/ liability insurance are likely to be less
careful than people w/o insurance, who will be individually responsible for the
injuries they cause
2. If this were admissible, there would be a huge risk of unfair prejudice: Jurors
might impose damages because of insurance, etc.
iii. Rationale
1. A person w/o insurance is no more likely to be negligent than anyone else
2. This is also excluded as being an invitation to the jury to share the resources of
the insurer with the P, regardless of the merits of the case
iv. Permissible Uses
1. Those listed in the rule
2. When there is a permissible purpose, the admissibility of the evidence should
depend of FRE 403, and FRE 403 should require at a minimum that the issue for
which the evidence offered is a contested issue in the case
v. Quick note
1. If, as is frequently the case, an insurance investigator testifies about the results of
an investigation, evidence that the investigator represents a company that insures
one of the parties will probably be admissible both as part of the general
background information about the witness and as an indication of the possible
bias of the witness.
Two Issues that NO Federal Rule of Evidence Addresses
a. Similar Happenings
i. General
1. There is NO SPECIFIC FRE for similar or non-similar happenings
ii. Most often arises in the following situations:
1. Evidence of other people slipping and falling on the same allegedly slippery floor
where P fell
2. Offers to prove that a tort D has committed similar torts in the past
3. Offers in tort case to prove that an instrumentality has cause other similar injuries
4. Offers to prove that a party files many similar claims in the past
5. Offers in a breach of contract case to prove that a party has entered into similar
contracts
6. Offers of other property transactions to prove the value of property
iii. Approaching the Issue
X.
XI.
1. Why is the evidence arguably relevant?
2. If the evidence is relevant, does some specific exclusionary rule like FRE 404 or
the hearsay rule make the evidence inadmissible?
3. If the evidence is relevant and not inadmissible pursuant to specific exclusionary
rule, is the evidence inadmissible b/c its probative value is substantially
outweighed by FRE 403 factors?
iv. Human v. Non-Human evidence
1. On some occasions, the similar happenings a party wishes to show are events that
are caused by some non-human instrumentality
a. Someone falling down a defective staircase
2. If the proponent of this type of similar happenings evidence offers witnesses with
firsthand knowledge of these events, the only rules that a judge will probably have
to consider are FRE 401-403
3. It is not a FRE 404 preliminary fact for a judge to consider
4. Frequently, however, courts make little or no reference to FRE 403 and instead
discuss admissibility in terms of the similarity of the prior incidents
v. Institutional policy or practice
1. Most common use is to show an institutional policy or practice
a. Prisoners class action to show records of numerous incidents of police
brutality
vi. Application of FRE 403 to similar happenings evidence
1. When the issue is notice, the probative value of the evidence depends on whether
the D was or should have been aware of the other incidents, and not on how
similar they are to the incident that gave rise to the litigation.
2. Most federal courts speak of a requirement of “substantial similarity”
3. Perhaps one can justify this careful screening by courts on the ground that the
probative value of similar incidents standing alone is sufficiently low that it is
substantially outweighed by the FRE 403 efficiency and confusion factors
4. In making an FRE 403 determination, one should not look merely at the time that
it will take initially to introduce the evidence but rather at the total time that it will
take to deal with evidence
vii. Evidence of non-happenings
1. Courts also exercise a HIGH degree of control over evidence of nonhappenings
a. Mainly, know that the probative value must be very high
b. Evidence that three people didn’t fall on the staircase is low probative
value, evidence that 7000 people didn’t fall on the staircase is high
probative value
b. The Doctrine of Curative Admissibility
i. This doctrine permits a party to introduce normally inadmissible evidence in response to
the opposing party’s introduction or attempt to introduce inadmissible evidence
ii. Most, but not all, jurisdictions recognize some version of the curative admissibility
doctrine, and although there is no FRE dealing with the subject, federal courts have
envoked the doctrine.
HEARSAY RULES: SEE ATTACHED SUPPLEMENT
Impeachment
a. General
i. The Inferential Process
1. The Testimonial Inferences
a. To believe the truth of a statement, we must believe in the honesty,
perception, memory, and accuracy of the witness.
b. If any of the inferences in the diagram are false, the evidence isn’t relevant
to prove that the D did not do something wrong. To help ensure that they
aren’t false, the law requires witnesses to testify from firsthand knowledge
(FRE 602) and to affirm that they will testify truthfully (FRE 603).
ii. Types of impeachment evidence
1. Impeachment is an attempt to show that a witness may have inadvertently
narrated the events incorrectly, been insincere, misperceived the events about
which the witness testified, or forgotten some or all of what happens
2. Ways to discredit a witness
a. Evidence that a witness has a character trait for untruthfulness suggests
that the witness may be untruthful on the witness stand
b. Showing that the witness has a bias or interest in the case suggests a
motive for being untruthful.
c. Attacks on other testimonial qualities such as the witness’s narrative or
perceptive abilities may also undermine a witness’s credibility. Such
attacks may focus on general abilities (e.g. colorblindness) or on the
specific exercise of those abilities on the occasion relevant to the case (i.e.
not wearing your glasses).
d. Proof of a witness’s inconsistent statements suggest that the fact finder
should be skeptical about the accuracy of the witness’s testimony
e. Testimony from other sources that contradicts the witness may reduce the
witness’s believability.
iii. Impeachment Evidence v. Substantive Evidence
1. To admit evidence for the purpose of impeaching the credibility of a witness is to
admit evidence that, but for its impeachment value, would not be admissible –
either because it would be irrelevant or b/c some exclusionary rule (i.e. hearsay
rule or FRE 404(b)) would prohibit its substantive use)
2. When evidence is admissible ONLY to impeach the credibility of a witness, the
limited admissibility has three significant consequences:
a. The proponent of the impeachment evidence in resisting a directive verdict
or summary judgment motion can’t rely on that evidence to satisfy a
burden of production.
b. The proponent in closing argument can’t rely on the impeachment
evidence as substantive proof of the disputed fact.
c. Whenever the evidence is relevant but inadmissible for some nonimpeachment purpose, the party against whom the evidence is offered can
make an FRE 403 objection and, if the evidence is admitted, is entitled to
a limiting instruction.
iv. Extrinsic Evidence and Impeachment
1. Extrinsic evidence means any evidence other than that developed through direct
or cross-examination of the witness
v. Bolstering Credibility
1. FRE 608(a) prohibits introducing reputation or opinion evidence of a witness’s
good character for truhtfulness unless the witness’s character for truthfulness has
been attacked.
2. Federal Rules contain NO GENERAL prohibition against bolstering witness’
credibility prior to impeachment
a. However, it turns on FRE 403 – and usually if the witness hasn’t been
impeached, the rehabilitation has little probative value
3. Federal Courts continue to articulate the general common law prohibition against
all bolstering prior to impeachment
b. FRE 607: Who May Impeach
i. Rule
1. The credibility of a witness may be attacked by any party, including the party
calling the witness
ii. Contradiction: Collateral and Non-Collateral Matters; Good Faith Basis
1. If a matter is considered collateral, the testimony of the witness on direct or crossexamination
c. FRE 608: Character Evidence – Impeachment and Rehabilitation
i. Note
1. FRE 608 is specifically mention in 403(a)(3) as one of the exceptions to the use of
character for relevancy
ii. FRE 608(a)(1) & (2) : Opinion and Reputation Evidence of Character
1. General Rule
a. The credibility of a witness may be attacked or supported by evidence in
the form of opinion or reputation, but subject to these limitations:
i. The evidence may refer only to character for truthfulness or
untruthfulness
ii. Evidence of truthful character is admissible only after the character
of the witness for truthfulness has been attacked by opinion or
reputation evidence or otherwise.
2. Application
a. The process of eliciting reputation or opinion testimony from a character
witness pursuant to FRE 608(a) is identical to the process for using
reputation or opinion for substantive purposes
3. Advisory Committee note:
a. The inquiry [under FRE 608(a)] is STRICTLY limited to character for
veracity, rather than allowing evidence as to character generally
4. FRE 608(a)(2): Limitation on evidence of Truthful Character
a. Courts find attack:
i. When impeached by showing of prior convictions. FRE 609.
ii. When impeached by showing bad acts that did not result in
convictions. FRE 608(b).
b. On the other hand, courts have regarded proof of a witness’s bias as not
being an attack on the witness’s character
c. When parties use other impeachment devices – for example, prior
inconsistent statements or demonstrations of contradiction, courts are
divided on the propriety of allowing the proponent of the witness to use
reputation or opinion evidence to rehabilitate the witness.
iii. FRE 608(b)(1) & (2): Specific Instances of Conduct
1. General Rule
a. Specific instances of the conduct of a witness, for the purpose of attacking
or supporting the witness’ character for truthfulness, other than conviction
of crime as provided in Rule 609, may not be proved by extrinsic
evidence.
b. They may, in the discretion of the court, be inquired into on crossexamination of the witness
i. Concerning the witness’ character for truthfulness of
untruthfulness or
ii. Concerning the character for truthfulness or untruthfulness of
another witness as to which character the witness being crossexamined has testified.
c. The giving of testimony, whether by an accused or by any other witness,
does not operate as a waiver of the accused’s or the witness’ privilege
against self-incrimination when examined with respect to matters that
related only to character for truthfulness.
2. The prohibition against the use of extrinsic evidence
a. The first sentence of FRE 608(b) prohibits the use of extrinsic evidence of
a witness’s specific acts to prove character for truthfulness to show
dishonesty or honesty on the witness stand.
b. FRE 608(b) and a majority of states, however, do permit inquiry into a
witness’s own acts during the examination of that witness.
c. The prohibition against the use of extrinsic evidence means that the
examiner is bound by the answer of the witness
d. The impeaching party cannot introduce extrinsic evidence to contradict the
witness.
3. The proposed clarifying amendment
a. The proposed amendment to FRE 608(b) makes it clear that 608(b)’s
extrinsic evidence ban applies only to acts offered to prove character for
truthfulness.
4. The limited scope of permissible inquiry
a. FRE 608(b) is consistent with FRE 608(a) in that the specific acts must
related to character for truthfulness
b. Time constraint
i. The time factor is obviously still relevant in assessing probative
value, and the concern with remoteness should be remoteness from
the time of trial.
5. No fifth amendment waiver
a. B/c of the centrality of cross-examination to our adversarial system, the
giving of testimony by a witness is regarded as a waiver or forfeiture of
the witness’s 5th amendment right against self-incrimination, at least with
respect to the subject matter of the witness’s direct examination testimony.
This rule protects that.
6. Scope of the Extrinsic Evidence Ban
a. The narrow interpretation of 608(b) is correct for several reasons
i. The cross-reference to FRE 608 suggests that FRE 608 should
apply to impeachment with evidence of character for truthfulness,
not attacks on credibility generally.
ii. United States v. Abel strongly supports the limited reading of FRE
608(b)
b. The Scope of Permissible Questions: The Meaning of Untruthfulness
i. At the extremes, courts tend to find that perjury or other instances
of making false statements suggest untruthfulness, and that acts of
violence do not suggest untruthfulness.
ii. Then, there is a big grey area between these extremes at which
courts disagree.
c. FRE 403 can keep this evidence out in many instances
i. 403 concerns may militate against even asking a witness about
specific acts of untruthfulness:
1. In some instances the witness’s conduct, even if relevant to
show untruthfulness, may have low probative value.
2. If the witness acknowledges an act of untruthfulness, there
is a risk of unfair prejudice. The risk is particularly great of
the witness happens to be a party; the jury may be willing
to think this is a bad person.
3. If there are numerous inquiries about the specific acts of
truthfulness, there are likely to be concerns with timeconsumption and confusion of the issues.
4. Even if the witness honestly denies committing a dishonest
act, there is a risk that the jury may be more swayed by the
suggestiveness of the question than by the answer.
5. If the witness is a party and if the question relates to
conduct similar to the conduct that is the subject of the
litigation, there is a risk that the jury will consider the
evidence, contrary to the dictate of 404(b), as evidence that
the D engaged in the conduct that is the subject of the
litigation.
d. Good faith and Practical Considerations
i. The examiner must have a good-faith basis for believing that the
act occurred.
ii. Such a requirement is usually satisfied by knowledge that the
witness had been arrested for the activity or by hearsay information
obtained during the investigation.
e. Specific Acts showing character for Truthfulness
i. Unlike FRE 608(a), 608(b) does not provide that evidence showing
a truthful character is permissible only after the opposing party has
attacked the witness’s character.
1. Nonetheless, courts may rely on FRE 403 to prohibit preimpeachment efforts to bolster a witness’s credibility.
iv. FRE 608(b)(2): Specific Instances of Conduct
1. FRE 608(b)(2): the cross-examination of reputation or opinion witnesses to test
their knowledge of the reputation or the basis for the opinion of which they
testify.
a. Once a character witness has given reputation or opinion testimony
pursuant to FRE 608(a), the opposing party – in addition to impeaching
the character witness with Q’s about the character witness’s own acts of
untruthfulness (608(b)(1)) – may impeach the character witness in the
same manner in which a party may impeach character witnesses who give
reputation or opinion testimony pursuant to FRE 404(a)(1) and (2):
i. The impeaching party may ask the character witness if the
character witness is aware of relevant specific acts committed by
the person whose character was the subject of the witness’s
testimony.
2. FRE 608(b)(2) impeachment process is identical to the process for impeaching
character witnesses already discussed.
d. FRE 609: Impeachment by Evidence of Conviction of Crime
i. General
1. This is a highly controversial rule
2. Employment of a prior conviction to impeach is premised upon the assumption
that a person with a criminal record has a bad general character, evidenced by his
willingness to disobey the law, and that his bad general character would lead him
to disregard his oath to testify truthfully.
3. However, evidence of the prior conviction is admissible under FRE 609 only to
impeach the witness’ character for truthfulness and not as evidence bearing on the
witness’ character for being law abiding.
a. This fits with Rule 404
4. Huge possibility with this impeachment of a bad person prejudice
5.
ii. FRE 609(a): The General Rule
1. Rule
a. For the purpose of attacking the credibility of a witness, (1) evidence that
a witness other than an accused has been convicted of a crime shall be
admitted, subject to Rule 403, if the crime was punishable by death or
imprisonment in excess of one year under the law under which the witness
was convicted, and evidence that an accused has been convicted of such a
crime shall be admitted if the court determines that the probative value of
admitting this evidence outweighs its prejudicial effect to the accused; and
(2) evidence that any witness has been convicted of a crime shall be
admitted if it involved dishonesty or false statement, regardless of the
punishment.
2. Thus, two types of convictions are permitted under this Rule:
a. Convictions for serious crimes (punishable by more than one year)
b. Convictions, regardless of punishment, for crimes of dishonesty and false
statement
3. Extrinsic Evidence
a. FRE 609 contains no prohibition against the use of extrinsic evidence
4. The Balancing Tests:
a. General
i. FRE 609(a)(1) mandates a reverse-403 balancing test:
1. The probative value must outweigh the prejudice to the D
ii. Favors exclusion and puts the burden on the prosecution to justify
admissibility
b. Reverse-403 balancing for Criminal D’s:
i. B/c the risk of prejudice to criminal D’s is particularly high and b/c
the probative value v. prejudice balancing process is inherently
imprecise, 609(a)(1) employs a reverse 403 balancing test for
witnesses who are criminal D’s.
ii. As a result, it is somewhat more likely, at least in theory, that the
murder conviction – and other FRE 609(a)(1) convictions – will be
admissible againt witnesses who are not criminal D’s than against
criminal D’s.
c. FRE 403 Balancing Test for other witnesses
i. FRE 609(a) does not give civil parties who are witnesses the
benefit of the reverse FRE 403 balancing test
ii. The risk of prejudice from using prior convictions for
impermissible propensity purposes may be less in civil cases
generally than in criminal prosecutions.
5. Dishonesty and False Statements
a. Dishonesty and false statement conviction are automatically admissible
w/o regard to balancing and w/o regard to the seriousness of the crime
i. Just must fit w/in the 10 year time limit
b. The meaning of “dishonesty and false statements”
i. Given a narrow construction
1. Equates with crimen falsi at common law
ii. Examples (Advisory Committee Note):
1. Perjury, subornation of perjury, false statements, criminal
fraud, embezzlement or false pretenses, or any other
offense in the nature of crimen falsi the commission of
which involves some element of untruthfulness, deceit or
falsification.
6. The significance of the Underlying Details of the Crime
a. Courts are reluctant to allow the underlying details of the crime
b. Rather, they look to the elements that make up the crime
c. Rationale:
iii. FRE 609(b): Time Limts
1. Rule
a. Evidence of a conviction under this rule is not admissible if a period of
more than ten years has elapsed since the date of the conviction or of the
release of the witness from the confinement imposed for that conviction,
whichever is the later date, unless the court determines, in the interest of
2.
3.
4.
5.
6.
justice, that the probative value of the conviction supported by specific
facts and circumstances substantially outweighs its prejudicial effect
b. However, Evidence of a conviction more than 10 years old as caculated
herein, is not admissible unless the proponent gives the the adverse party
sufficient advance written notice of intent to use such evidence to provide
the adverse party with a fair opportunity to contest the use of such
evidence.
The Reverse Balancing Test
a. General
i. All prior convictions falling with the scope of 609(a) – including
dishonesty and false statement convictions- are subject to the
reverse-403 balancing test if they fall outside the 10 year time
limit.
ii. The ten year time limit runs from the date of conviction, or release
from imprisonment, whichever is later.
Extrinsic Evidence
a. Convictions are the result of a plea or a fact finder’s beyond a reasonable
doubt finding of guilt. They provide highly probative evidence that the
underlying bad acts occurred.
b. Thus, the concern with time-consuming litigation about collateral matters
that arguably justifies FRE 608(b)’s exclusion of extrinsic evidence is not
prevalent in FRE 609.
The factual details of the conviction
a. Most courts will only let the impeaching party ask the name of the crime,
when and where it occurred, what sentence was imposed, and nothing
more
b. Some courts prohibit the impeached witness from offering any explanation
for the conviction.
c. A number of courts will permit the witness, especially if the witness is a
party, to testify briefly about any mitigating or extenuating circumstances.
Hearsay
a. A prior conviction is hearsay.
b. The FRE 803(22) as well as a number of other jurisdictions, have a
judgments exception to the hearsay rule.
i. Typically, however, the judgments exception is narrower than the
rule authorizing judgments for impeachment purposes.
Motion in Limine (liminy)
a. Typically, a D will file a motion in limine (liminy) to ask the court if they
will admit prior convictions.
b. Rationale for filing such a motion:
i. Typically, there is substantial empirical evidence that the
admission of a criminal D’s prior convictions contributes to the
likelihood of a guilty verdict.
ii. Particularly for defense witnesses, it is likely to be tactically
important for the witness to mention admissible prior convictions
on direct examination
1. Shows the jury they’ve “come clean”
c. Rulings on this issue (Important):
i. Luce v. United States: There is no obligation for a judge to rule on
a motion in limine. Supreme Court held that a D who chose not to
testify after the trial judge refused to rule on his motion in limine
could not seek reversal on the ground that the convictions should
not have been admissible. This would encourage bad things
ii. Ohler v. United States: D who acknowledges prior convictions on
direct examination after a ruling that they will be admissible
pursuant to FRE 609 cannot claim on appeal that the admissibility
decision was erroneous.
e. FRE 613: Witness’s Prior Statements – Impeachment and Rehabilitation
i. General
1. A witness testifying in court may be impeached by proof that the witness made a
statement outside of court contradicting his or her in-court testimony, or failed to
speak under circumstances where it would have been natural to relate the matters
testified to in court if true
2. An inconsistent statement by a witness meeting the definition of hearsay is
admissible as substantive evidence only if the statement is exempted from the
category of hearsay, or if the statement meets the requirements of a hearsay
exception.
a. Thus, FRE 613 applies only with respect to prior inconsistent statements
admissible solely to impeach credibility of the witness or as substantive
evidence solely by virture of Rule 801(d)(1)(A) [See Hearsay Supp.]
3. Prior inconsistent statement impeachment is subject to FRE 403
4. If a witness’s prior statement is admissible for its truth, there is no need to
consider whether it may also be admissible for the non-hearsay purpose of
impeaching the witnesses credibility.
ii. FRE 613(a): Examining Witness Concerning Prior Statements
1. Rule
a. In examining a witness concerning a prior statement made by the witness,
whether written or not, the statement need not be shown nor its contents
disclosed to the witness at that time, but on request the same shall be
shown or disclosed to opposing counsel.
2. Elaboration
a. This abolishes the Queen Caroline’s Case rule
b. The examiner need not disclose the contents of a prior inconsistent
statement to the witness before asking wither the witness made the
statement
i. Showing the statement to the witness before questioning gives the
dishonest witness the opportunity to concoct a false story that
minimizes the impact of the inconsistency
c. FRE 613(a) does provide that opposing counsel has the right, upon
request, to learn of the statement
iii. FRE 613(b): Extrinsic Evidence of Prior Inconsistent Statement of Witness
1. Rule
2.
3.
4.
5.
a. Extrinsic evidence of a prior inconsistent statement by a witness is not
admissible unless the witness is afforded an opportunity to explain or deny
the same the opposite party is afforded an opportunity to interrogate the
witness thereon, or the interests of justice otherwise require.
b. This provision does not apply ot admissions of a party-opponent as
defined in FRE 801(d)(2).
Elaboration
a. In most instances there is a twofold condition for the admissibility of
extrinsic evidence:
i. The witness must have the opportunity to explain the statement;
ii. The opposing party must have an opportunity to explore the
inconsistency with the witness.
b. To fulfill these requirements the party offering the prior inconsistent
statement must generally do so when the witness is still testifying or must
make sure that the witness is available for recall
c. Requiring that the witness have the opportunity to explain the statement
gives the fact finder a reasonable basis for evaluating the alleged
inconsistency.
The “interests of justice”
a. The “interests of justice” exception exists b/c there may be situations in
which it is not possible to give the witness an opportunity to explain the
apparent inconsistency.
b. The requirement is inapplicable to inconsistent statements by a party
falling within FRE 801(d)(2).
Inconsistency
a. This rule isn’t limited to those statements which are directly contradictory;
it is sufficient if the inconsistency has a reasonable tendency to discredit
the testimony of the witness.
b. The prior inconsistent statement may consist of:
i. A previously expressed opinion whether or not the subject matter
would be a proper one for opinion evidence offered at trial.
ii. The omission from a prior statement of a matter which would
reasonably be expected to have been mentioned if true,
iii. The failure to speak at all of a matter asserted at trial under
circumstances in which it would have been natural to do so.
iv. Also, under circumstances which would normally call for a denial
if true, the failure to respond to the statement of another may be
treated as an adoption by silent acquiescence.
Lack of Recollection
a. A witness who testifies to a fact at trial may be impeached with a prior
statement of the witness claiming lack of recollection of that fact
b. However, when a witness claims lack of recollection on the stand as to the
existence of an earlier event, a prior statement describing that event is
arguably not on its face inconsistent with the witness’ current lack of
recollection.
c. When a witness on direct examination asserts lack of recollection as to the
underlying event, provided the court initially determines that current lack
of recollection as to the underlying event and a prior statement are in fact
inconsistent, the calling party’s right to impeach the witness with an
inconsistent statement is governed by FRE 607.
6. Good Faith Basis
a. A Good faith basis is required
i. Innuendoes and Insinuations of a nonexistent statement are
improper
7. Probative Value and FRE 403 concerns
a. The Risk of improper “substantive” use
i. When an inconsistent statement relates to an issue in the lawsuit,
there is, of course, the possibility that the jury will consider the
statement not merely for its impeachment value but also for its
truth.
ii. This will, SELDOM IF EVER, be a way to exclude the evidence
iii. The FRE 403 unfair prejudice argument is not likely to succeed
unless the objecting party can show some way in which the
statement at issue is likely to be uniquely prejudicial in comparison
to other inconsistent statement.
b. Loss of memory and inconsistency
i. FRE 403 unfair prejudice argument should have a reasonable
chance of succeeding in one situation:
1. If a witness who testifies to a lack of memory about an
event has made a prior statement about the event, some
courts view the claimed current loss of memory and the
prior statement as inconsistent with each other.
c. Inconsistent Statements about Collateral Matters
i. If it is about collateral matters, its probative value may be very
low, so it might not make a 403 test unless there are other severe
circumstances
ii. The important question for admissibility should be whether the
probative value of the inconsistent statement for its impeachment
value is substantially outweighed by countervailing 403 factors
iv. Prior Consistent Statements
1. Prior Consistent statements may be relevant for two distinct purposes:
a. To prove the truth of their contents, in which case they implicate hearsay
concerns
b. To rehabilitate or bolster a witness’s credibility by demonstrating that the
witness has spoken consistently about a matter.
2. Pursuant to FRE 801(d)(1)(B): Admissibility for Truth
a. FRE 801(d)(1)(B): Exempted from the definition of hearsay is a witness’s
statement that is consistent with the declarant’s testimony and is offered to
rebut an express or implied charge against the declarant of recent
fabrication
b. The SC in Tome v. United States has interpreted FRE 801(d)(1)(B)
narrowly:
i. Only prior consistent statements made prior to the time that a
motive to fabricate or an improper influence arose fall within the
scope of the rule
c. Admissibility to rehabilitate pursuant to FRE 401-403?
i. Neither FRE nor Tome addresses the question whether prior
consistent statement that do not satisfy the Tome-FRE
801(d)(2)(B) distinction are subject to FRE 401-403
ii. When a witness has been impeached with prior inconsistent
statements, the uniform view is that contemporaneous prior
consistent statements not satisfying the criteria of 801(d)(1)(B)
may be admissible to clarify or explain the alleged inconsistency
1. This is consistent with both the principle of completeness
in FRE 106 and the FRE 613(b) requirement that a witness
have an opportunity to explain or deny an inconsistent
statement
d. Rehabilitation with Consistent Statements in Other Contexts
i. Courts are split as to whether FRE 801(d)(1)(B) governs the use of
prior consistent statements offered to rehabilite witnesses
1. One view is that FRE 801(d)(1)(B) governs the use of prior
consistent statements for both hearsay and rehabilitation
purposes:
a. If the statement is not admissible for its truth, it is
not admissible to rehabilitate
b. Primary objective of 801(d)(1)(B) is to eliminate
the need for a limiting instruction when prior
consistent statements are admissible
ii. The contrary view is that FRE 801(d)(1)(B) is nothing more than a
hearsay exemption
1. Since there is no rule restricting the use of prior consistent
statements for non-hearsay purposes, the admissibility of
priors consistent statements is governed by FRE 401-403
f. Other Impeachment Techniques
i. Bias
1. Three methods of showing a witness’s emotional incapacity
a. General Bias
i. All varieties of hostility or prejudice against the opponent
personally or of favor to the proponent personally
ii. Intimate family relationship with one of the parties
b. Interest
i. Specific inclination which is apt to be produced by the relation
between the witness and the cause at issue in the litigation
1. The expectation of favorable treatment from the prosecutor
or sentencing judge in return for the testimony
c. Corruption
i. Conscious false intent which is inferable from giving or taking a
bribe or from expressions of a general unscrupulousness for the
case at hand
1. Attempt to bribe another witness or the receipt of money
for testimony
2. Two kinds of available evidence:
a. The circumstances of the witness’ situation making it a priori probable
that he has some partiality of emotion for one party’s cause
b. The conduct of the witness himself, indicating the presence of such
partiality, the inference here being from the expression of the feeling to
the feeling itself
3. Extrinsic Evidence
a. Bias IS ALLOWED to be proven with extrinsic evidence
b. Possible Limitations on Extrinsic Evidence
i. Two Limits
1. Some federal courts hold that when the evidence of bias is
a witness’s prior statement, extrinsic evidence of the
statement is not admissible unless the witness first has had
an opportunity to explain or deny the statement
2. A successful 403 objection
a. Typically evidence of bias is highly probative
b. If the witness fully admits the bias or if the
evidence in fact suggests little about the witness’s
possible bias, a court should probably sustain the
403 objection
4. Bias v. Character
a. It is not clear to what extent one should regard the concepts of character
and bias as mutually exclusive or as potentially overlapping
b. FRE 608(b) prohibition against extrinsic evidence to prove character
should not apply when the evidence is relevant and otherwise admissible
to show bias
i. To the extent that it is reasonable to infer from a corrupt act that a
witness has some particular concern about or interest in the
outcome of the litigation, the evidence has relatively high
probative value on the question whether the witness’s testimony is
tainted because of this interest
1. It seems appropriate to attach the bias label to this type of
evidence in order to permit exploration of the matter with
extrinsic evidence
ii. If the only reasonable inference to draw from a corrupt act is that
the individual has a general lack of integrity or disregard for the
truth, the probative value of the evidence to suggest untruthfulness
on one specific occasion on the witness stand is relatively low
1. The evidence should receive the character label in order to
prevent the possibility of time consuming and distracting
exploration of the matter with extrinsic evidence
ii. Mental or Sensory Incapacity
1. Relevance
a. Any sensory or mental deficiency that inhibits a witness’s ability to
perceive events accurately, at the time of trial is relevant to cast doubt on
the witness’s credibility
b. Any fact relating to the witness’s general testimonial capacities for
narration, perception, and memory or about the exercise of these capacities
in the occasion in question is relevant to impeach the witness
c. It is permissible to inquire about these matters during the examination of
the witness whose sensory or mental condition is at issue
2. Extrinsic Evidence
a. Parties may introduce extrinsic evidence of a witness’s mental or sensory
incapacity
i. Regarded as showing something different from a moral incapacity
or character trait:
1. Courts have permitted evidence of such matters as strange,
seemingly irrational acts of a witness
2. Expert testimony from a psychiatrist about a witness’s
mental capacity
3. Courtroom experiments to demonstrate a witness’s poor
memory or eyesight
b. It is appropriate to decide on a case-by-case basis how extensive a crossexamination to permit and how much, if any, extrinsic evidence to
introduce about a witness’s sensory or mental incapacity.
3. Mental Incapacity as a Bar to Testimony
a. FRE 601 presumes that every person is competent to be a witness,
including a person with a mental illness
iii. Contradiction
1. Relevance
a. Evidence that contradicts something the witness has said
i. If one can establish that a witness is incorrect about one thing, it is
arguably appropriate to infer that the witness may be wrong about
other things
ii. Evidence of contradiction is not offered as definitely showing any
specific defect of any kind, and yet it may justify an inference of
the existence of any one or more defect
1. All we know is that the witness is capable of making an
erroneous statement
a. Possible sources of defect
i. Mental defect as to powers of observation or
recollection
ii. Lack of veracity character
iii. Bias
iv. Corruption
2. Some unspecified defect which became a source of error,
the same defect may equally exist as the source of some
other error, otherwise not apparent
XII.
2. Extrinsic Evidence
a. Courts, applying FRE 403, may permit cross-examination but exclude
extrinsic evidence to prove the contradiction if the contradiction appears to
have little probative value to impeach the witness
b. The “No Extrinsic Evidence to Impeach on a Collateral Matter” Doctrine
i. What is Not Collateral Generally
1. Facts Not Within the Term
a. 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 evidence is generally
admissible for the non-contradiction impeachment purpose
AND
3. Collateral Doctrine should not prohibit the use of extrinsic
evidence that both contradicts the witness and also
impeaches credibility in some other way, as long as it is
clear that extrinsic evidence would be admissible for that
independent impeachment purpose
a. Facts recited by the witness that, if untrue, logically
undermine the witness’s story
ii. A Test For Collateral-ness
1. Could the fact have been proven with extrinsic evidence for
any purpose except to show a mere contradiction?
a. If yes, there is some relevant, permissible use for
extrinsic evidence above and beyond its value as
showing a mere contradiction, it is not collateral
FRE 701-705: Lay Opinions and Expert Witnesses
a. FRE 701: Lay Opinion
i. Rule
1. If the witness is not testifying as an expert, the witness’ testimony in the form of
opinions or inferences is limited to those opinions or inferences which are:
a. Rationally based on the perception of the witness
b. Helpful to a clear understanding of the witness’ testimony or the
determination of a fact in issue, and
c. Not based on scientific, technical, or other specialized knowledge w/in the
scope of FRE 702
ii. General
1. The rule states a preference for witnesses not to testify in the form of opinions –
largely, we want people relaying facts, not conclusions, to the jury and only in
situations where the facts are likely to confuse will we stand for opinions
iii. “Rationally based on the perception of the witness”
1. Rulings are extremely case-specific
2. When the witness observes first hand the altercation in question, opinions on the
feelings of the parties are based on personal knowledge and rational perceptions
are helpful to the jury
iv. “Helpful to a clear understanding of the witness’s testimonoy or the determination of a
fact in issue”
1. The witness must speak of facts within his knowledge, he cannot under the pretext
of an opinion , give his deductive conclusion from what he saw and knew
2. Must allow the witness to describe in the aggregate rather than break it down into
component parts
3. Trial judges are invested with substantial discretion
a. Makes decisions largely unreviewable
b. The more opinions are allowed, the more the witness usurps the role of the
fact finder
c. Forbidding lay opinions may at times interfere with the normal manner in
which a person relates what has been observed
v. Fact v. Opinion
1. Because of observational and memory problems, whether realized or not, it makes
it clear that nearly every word uttered is in some way an opinion
2. We want witnesses to relate sensory impressions that are less rather than more
varnished
3. Largely, the way to distinguish between allowable and impermissible lay opinions
is a matter of common sense
4. The legitimate concern which underlies the common sense inquiry is that we
don’t want witnesses to substitute their conclusions of facts that would be helpful
to the jury
b. FRE 702: Testimony by experts
i. Rule
1. If scientific, technical, or other specialized knowledge will assist the trier of fact
to understand the evidence or to determine a fact in issue, a witness qualified as
an expert by knowledge, skill, experience, training, or education, may testify
thereto in the form of an opinion or otherwise, if:
a. The testimony is based on sufficient facts or data
b. The testimony is the product of reliable principles and methods, and
c. The witness has applied the principals and methods reliably to the facts of
the case
ii. Will Assist the Trier of Fact
1. Any knowledge that is not likely to be possessed by the fact finder qualifies for
admission under this rule, no matter how the knowledge is obtained
2. A person offering an expert witness must be prepared to qualify the witness as
having knowledge that the jury lacks that would be helpful to the decision
iii. Witness qualified as an expert
1. If specialized information will assist the trier of fact, the trial judge must then
determine whether the person offered to present the information is qualified to do
so.
2. The crucial questions are whether the proposed witness has specialized
knowledge, however obtained, and whether it would be helpful to the jury
iv. FRE 403 evaluations
1. Some specialized evidence may have low probative value
2. The evidence may be misleading if scientific jargon gives an aura of legitimacy
that it doesn’t deserve; the complexity of the evidence may tend to confuse rather
than help jurors; and perhaps most important, the speculative nature or low
probative value of some specialized evidence may not warrant spending the time,
first, to demonstrate possible relevance of the evidence and, second, to explore all
of the possible weaknesses in the evidence
v. Elaboration of Scientific Evidence under 702: From Frye to Daubert
1. Frye v. United States
a. Systolic Blood Pressure lie detector. Set the standard for Scientific
Evidence. Was decided before the FRE
b. Scientific evidence, for admissibility, “must have gained general
acceptance in the particular field in which it belongs.”
2. Daubert v. Merrell Dow Pharmaceuticals
a. Rejects the Frye “general acceptance test”
b. States that “scientific evidence” must be reliable and relevant, which
essentially means scientifically valid and helpful to the jury.
c. General Test
i. The judge must assess whether the expert is testifying to
1. (1) scientific knowledge
2. (2) that will assist the trier of fact to understand or
determine a fact in issue.
ii. This entails a preliminary assessment (1) of whether the reasoning
or methodology underlying the testimony is scientifically valid and
(2) of whether that reasoning or methodology properly can be
applied to the facts in issue.
iii. Key questions to ask:
1. Whether the knowledge can be tested?
2. Whether the theory or technique has been subjected to peer
review and publication?
3. Consider the known or potential rate of error;
4. Consider the known or potential rate of error, and the
existence and maintenance of standards controlling the
technique’s operation.
5. Finally, general acceptance can have a bearing on the
inquiry
3. Kuhmo Tire Company V. Carmichael
a. Daubert does not only apply to scientific evidence
i. All expert testimony must have a reliable basis, including
testimony by experts based on their experience
ii. Daubert criteria may be helpful in evaluating other types of expert
testimony for reliability, but they are not exclusive
1. Some of the criteria are less likely to apply to nonscientific
forms of expert testimony
iii. The science must be pertinent, meaning it must “fit” in the sense of
relating directly to the issues of facts so that it can be truly helpful
to the trier of fact
4. Three Conditions to Admitting Polygraph
a. Notice of intent to use the evidence must be given to the opposition
b. The opposing side must be given an opportunity to administer its own test
AND
c. Admissibility of the evidence is to be governed by the normal rules for
admissibility of corroboration and impeachment evidence
i. Corroborating evidence would not be admissible until a witness’s
character for truthfulness had been attacked under 608.
c. FRE 703: Bases of Opinion Testimony By Experts
i. Rule
1. The facts or data in the particular case upon which an expert bases an opinion or
inference may be those perceived by or made known to the expert at or before the
hearing.
2. If of a type reasonably relied on by experts in the particular field in forming
opinions or inferences upon the subject, the facts or data need not be admissible in
evidence in order for the opinion or inference to be admitted.
3. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by
the proponent of the opinion or inference unless the court determines that their
probative value in assisting the jury to evaluate the expert’s opinion substantially
outweighs their prejudicial effect.
ii. Reasonably Relied On Requirement:
1. Reasonably relied upon requirement is taken seriously, and judges are not
required to bend over backwards to accommodate other disciplines
2. Judge must have a reason to believe that others in the field would rely on similar
data
iii. Need Not be Admissible in Evidence
1. Many and most facts relied upon by experts are hearsay that would not be allowed
without this element
2. The law bends to accommodate the practices of other professions
iv. Use a reverse FRE 403 test in this rule
d. FRE 704: Opinion on Ultimate Issue
i. Rule
1. An expert or a lay witness will not be precluded from testifying in the form of an
opinion or inference upon the ultimate issue on the ground that the testimony
invades the province of the jury
2. No expert witness testifying with respect to the mental state or condition of a D in
a criminal case may state an opinion or inference as to whether the D did or did
not have the mental state or condition constituting an element of the crime
charged or of a defense thereto. Such issues are for the trier of fact alone.
ii. Largely, this rule just says experts cannot render an opinion as to a matter of law that is to
be decided by the court.
e. FRE 705: Disclosure of Facts or Data Underlying Expert Opinion
i. Rule
1. The expert may testify in terms of opinion or inference and give reasons therefore
without first testifying to the underlying facts or data, unless the court requires
otherwise.
ii.
iii.
iv.
v.
2. The expert may in any event be required to disclose the underlying facts or data
on cross-examination.
Without first testifying to facts or data
1. Direct examiner given the flexibility to elicit the opinion or conclusion before
developing all the details that support it
2. Permits the opinion without requiring the proponent ever to produce the
underlying basis
The Court Requires Otherwise
1. If there is reason to suspect that the information on which the experts bases the
opinion is so unreliable that it may be appropriate to exclude the opinion
altogether, the opponent will want to test the basis for an opinion before, rather
than after the jury hears the opinion
Required to Disclose . . . on cross-examination
1. In some cases, the information revealed upon cross-examination can be quite
damaging to the party that proffered the evidence, either because it weakens the
expert’s credibility or because it muddles the story the jury hears
2. Cross-examiner is under no obligation to bring out any facts or data other than
those unfavorable to the opinion
a. Assumed that the cross-examiner has the advance knowledge of the
opinion from the discovery process
General Elaboration
1. The rule Eliminates the requirement of experts testifying in the form of a response
to a hypothetical
2. The rule Allows The Direct Examiner Some Flexibility
a. If the proponent is concerned that the jury will not pay careful attention
without having the expert opinion already before them, the proponent may
introduce the evidence early
b. If the proponent believes that laying the foundation first and then bringing
out the opinion is optimal, that approach is permissible
3. As a matter of strategy, the direct examiner is likely to explore the bases for an
expert’s opinion at sometime during the direct examination