1. Relevance
RULE 401 - Definition of “Relevant Evidence
“Relevant evidence” means having any tendency to make the existence of any fact that is of consequence to the
determination of the action more probably or less probable than it would be without the evidence.
NOTES:

first hurdle of admissibility

must be “probative of a fact of consequence to the determination of the action”

“fact of consequence…” is a fact helpful to resolving the suit; can be (1) an element of the cause of
action, claim, or defense; (2) the credibility of the witnesses; and (3) background facts

parties need not only introduce evidence that is in dispute
RULE 402 - Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible
All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act
of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority.
Evidence which is not relevant is not admissible.
RULE 104(b) - Preliminary Questions
(b) Relevancy conditioned on fact. When the relevancy of evidence depends upon the fulfillment of a condition of
fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the
fulfillment of the condition
NOTES:

when the relevance of evidence depends on the existence of a separate fact, the evidence is considered
to be “conditionally relevant”

evidence will be admitted if judge think reasonable jury find the fact exists by a preponderance of the
evidence; looks to see if jury could find witness credible, not if witness is actually credible

can be considered part of a foundational issue; can be considered a type of competency issue because it
requires a minimum connection to the facts of the case
RULE 403 - Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time
Although relevant, evidence may be excluded if it 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.
NOTES:

disallows relevant evidence when such evidence has an “undue tendency to suggest decision on an
improper basis, commonly, though not necessarily, an emotional one”

need for relevant evidence trumps concerns about unfair prejudice, hence “substantially”

403 can only be used after a judge has concluded that a limiting instruction would be insufficient to
offset prejudice
COMMON EVIDENCE FOUND “UNFAIRLY PREJUDICIAL” PROBABILITY EVIDENCE: using statistical evidence to imply that it would be highly unlikely that another
person committed the crime [ex. at trial, defense claims mistaken identity, while pros. brings in statistician who
claims a one in a million chance someone else did it]
EVIDENCE OF EXCESSIVE VIOLENCE: it is improper to offer evidence of a horrific act of violence when it is
sure to so blind a jury to the facts as to push them to an emotional decision; evidence cannot be so violent in
appearance that a reasonable jury will “lose its lunch” as a result of viewing it
SCIENTIFIC EVIDENCE: if evidence is not “substantially similar” to the even it is trying to create, it can be
highly prejudicial and thus be excluded; falls usually to experts [Rule 702]
SIMILAR OCCURENCES, HAPPENINGS, AND EVENTS: when there is a lack of evidence, use of similar
occurrences is attempted to corroborate their theory; sometimes allowed in (1) to show causation; (2) to show a
dangerous condition existed; (3) to show the mental state of a party when it is at issue; (4) to rebut a party’s
claim of impossibility; (5) to show the sales of other real property (to prove value); (6) to show the meaning of a
contract, contract provision or document; and (7) to show the meaning of a contract, contract provision or
document (custom)
AUTHENTICATION
All evidence that is to be admitted at trial must first be authenticated, per Rule 901. This involves laying
foundation showing relevance, a basic level of reliability, and that it is what it purports to be. Rule 902 lists items
that do not require extrinsic evidence to prove authenticity [domestic public records under seal, domestic public
records not under seal, foreign public documents, certified copies of public records, official publications,
newspapers and periodicals, trade inscriptions and the like, acknowledged documents, commercial paper and
related documents, presumptions under Acts of Congress, certified domestic records of regularly conducted
activity, and certified foreign records of regularly conducted activity].
TRADITIONAL QUESTIONS/PROCEDURE FOR AUTHENTICATION:

Do you recognize Exhibit #1 for identification purposes?

What is Exhibit #1 for identification purposes?

How do you recognize it?

[since documentary evidence can be modified] Witness, is Exhibit #1 for identification purposes in
substantially the same condition as it was when you last saw it?

[sometimes chain of custody must be proven]

Is Exhibit #1 for identification purposes a fair and accurate representation of what it depects as of a
particular time and date [when the incident occurred]?

[at this point usually entered into evidence]
RULE 1001 - Contents of Writings, Recordings, and Photographs
Definitions. For purposes of this article the following definitions are applicable:
(1) Writings and recordings. “Writings” and “recordings” consist of letters, words, or numbers, or their equivalent,
set down by handwriting, typewriting, printing, photostating, photographing, magnetic impulse, mechanical or
electronic recording, or other form of data compilation.
(2) Photographs. “Photographs” include still photographs, X-ray films, video tapes and motion pictures.
(3) Original. An “original” of a writing or recording is the writing or recording itself or any counterpart intended to
have the same effect by a person executing or issuing it. An “original” of a photograph includes the negative or
any print therefrom. If data are stored in a computer or similar device, any printout or other output readable by
sight, shown to reflect the data accurately, is an “original.”
(4) Duplicate. A “duplicate” is a counterpart produced by the same impression as the original, or from the same
matrix, or by means of photography, including enlargements and miniatures, or by mechanical or electronic rerecording, or by chemical reproduction, or by other equivalent technique which accurately reproduces the original.
RULE 1002 - Contents of Writings, Recordings, and Photographs
To prove the content of a writing, recording, or photograph, the original writing, recording or photograph is
required, except as otherwise provided in these rules or by Act of Congress.
NOTES:

“best evidence” rule; aims at minimizing potential authenticity problems by imposing requirement that
original be produced

rule only applies when witness is testifying solely from a writing or when a party attempts to prove the
contents of a writing; includes written confession, the written contract, or motion picture [containing an
obscenity]

there are a host of exceptions to the rule: Rule 1003 [admission of duplicates unless question of
authenticity of original or if unfair to use instead of original], Rule 1004 [admission of other evidence if
original is lost/destroyed, not obtainable, in possession of opponent, or collateral matters], Rule 1005
[public records may be proven by copy], etc.
CASES:
PEOPLE V. COLLINS [1968]
RULE: “…it was prejudicial error to allow the prosecution to offer, through an expert, a formula in statistical
probability, logically irrelevant and evidentially inadequate, from which the jurors were invited to infer that the
odds against defendants' innocence were one in 12,000,000, where the circumstantial nature of the evidence and
length of the jury deliberation showed that the case was a close one, and where, under the circumstances, the
"trial by mathematics," with which the jurors were not technically equipped to cope, so distorted their role and so
disadvantaged defense counsel as to constitute in itself a miscarriage of justice.”
OLD CHIEF V. UNITED STATES [1997]
RULE: When offers to concede the existence of a prior conviction, a court abuses its discretion if it rejects the
offer and admits the full record of a prior judgment when the name or nature of the prior offense raises the risk
of a verdict tainted by improper considerations, and when the purpose of the evidence is solely to prove the
element of a prior conviction.
SEILER V. LUCASFILM, LTD. [1986]
RULE: Court held that: (1) plaintiff's drawings constituted "writings" for purposes of best evidence rule; (2) best
evidence rule applied in plaintiff's copyright infringement case and thus plaintiff had to show that originals were
lost or destroyed through no fault of his own; and (3) rule defining evidentiary weight to be accorded certificate
of copyright registration did not require admission of copies of artist's work deposited at Copyright Office where
certificate of copyright had no bearing on ultimate facts artist sought to prove by its submission.
2. The Examination and Impeachment of Witnesses
RULE 601
General Rule of Competency. Every person is competent to be a witness except as otherwise provided in 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.
NOTES:

all persons are generally considered competent to testify; judges, per Rule 605, are not included

two situations where jurors might testify: juror has information about facts in dispute/juror might testify
to improper conduct by the jury [covered by Rule 606]; if juror is called as witness, opposing party may
object outside the presence of the jury

juror may only testify on the topic of whether or not “extraneous prejudicial information was improperly
brought to the jury’s attention or whether outside influence was improperly brought to bear upon any
juror…” [Rule 606(b)]
RULE 602
Lack of Personal Knowledge. A witness may not testify to a matter unless evidence is introduced sufficient to
support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge
may, but need not, consist of the witness’ own testimony. This rule is subject to the provisions of rule 703,
relating to opinion testimony by expert witnesses.
ORDER, SCOPE, AND FORM OF DIRECT/CROSS EXAMINATION

proponent of witness calls witness first

opposing parts, per 611(b) can only cross about “subject matter of direct examination and matters
affecting credibility”

proponent may then redirect: rebuttal or exploration of points raised on cross-examination
COMMON OBJECTIONS

leading questions: questions that suggest an answer

asked and answered

compound questions; two or more questions in a single sentence

questions assuming facts not in evidence

argumentative questions; phrased in such a way to engage in improper argument

calls for speculation; asks something about which no knowledge or for inadmissible opinion

non-responsive

narrative; answers exceed the scope of the question
RULE 612
Writing Used to Refresh Memory. (2) before testifying, if the court in its discretion determines it is necessary
in the interests of justice, an adverse party is entitled to have the writing produced at the hearing, to inspect it,
to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony
of the witness. If it is claimed that the writing contains matters not related to the subject matter of the testimony
the court shall examine the writing in camera, excise any portions not so related, and order delivery of the
remainder to the part entitled thereto…
NOTES:

judges retain discretion to refuse to permit some writings to be used

impeachment is a form of evidence, while refreshment is not
REHABILITATION OF WITNESS

pre-emptive rehabilitation is not permitted

credibility can be rehabbed after his/her truthfulness has been directly attacked

can occur through redirect or separate reputation or opinion witness testifying to good character
IMPEACHMENT
RULE 607
Who May Impeach. The credibility of a witness may be attacked by any party, including the party calling the
witness.
COMMON TYPES OF IMPEACHMENT CONTRADICTION: may be impeached by contradiction concerning facts not dispositive or important to case [if
inaccurate about one fact, likely to be inaccurate about others]; a party may not introduce extrinsic proof that
particular details in testimony are false unless topic of testimony would be relevant in trial regardless of
witnesses having or having not testified about it [must relate to a main issue at trial]
BIAS: witness is shown to be influenced, prejudiced, or predisposed toward or against one party; common
sources of bias include family ties, financial ties, and membership to an organization - sometimes a witness has
made a deal with prosecutors for a lesser sentence [this might be excluded if deal did not involve obligation to
testify]
CRIMINAL CONVICTIONS: conviction makes witness less believable; two types, crimes of dishonesty or false
statement and felonies [see Rule 609 below]
PRIOR UNTRUTHFUL/BAD ACTS: drug use, speeding, tax fraud, even if acquitted, can impact
TESTIMONIAL CAPACITIES: physiological defects, bad hearing, eye sight, allows examiner to display to jury
problems with witness that impact the veracity of testimony; independent evidence on the topic of shortcomings
of a witness’ perceptive capacities is also permitted
PRIOR INCONSISTENT STATEMENTS: except in limited circumstances, the jury may not rely on the truth of
what prior statement asserts, but simply use its inaccuracy to disbelieve current testimony [see Rule 613 below]
POOR CHARACTER FOR TRUTHFULNESS: can be introduced as both “opinion and reputation” evidence, as
well as “specific instances of conduct [see Rule 608 below]
RULE 608
Evidence of Character and Conduct of Witness. (a) Opinion and reputation evidence of character. The
credibility of a witness maybe be attacked or supported by evidence in the form of opinion or reputation, but
subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and
(2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been
attacked by opinion or reputation evidence of otherwise.
(b) Specific instances of conduct. 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. They may, however, in the discretion of the court, if probative of truthfulness or
untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness’ character for
truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another
witness as to which character the witness being cross-examined testified. 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 matter that relate only to character for truthfulness.
NOTES: OPINION

attack on character with opinion or reputation must refer only to character of truthfulness or
untruthfulness

can only be introduced once the specific trait is attacked

a simple prior inconsistent statement does not fit under “or otherwise” in this rule; inconsistency raising
an inference of untruthful nature may meet the “or otherwise” part [usually does not trigger right of
rebuttal]

only a suggestion of untruthful character permits an truthful character counter-strike
NOTES: SPECIFIC INSTANCES OF CONDUCT

at court’s discretion may be inquired to in character of witness or another witness for
truthfulness/untruthfulness

unlike 404 and 405, 608(b) changes rule for evidence used to impeach; specific acts may be used to
impeach character, but only if those acts are elicited from the mouth of the witness whose character is
being challenged

if witness denies incident took place, witnesses may not be called to prove otherwise

if extrinsic evidence is offered to impeach on grounds other than character, 402 and 403 apply
RULE 609(a)(1) - Impeachment by Evidence of Conviction of Crime
(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…
NOTES:

some felonies are probative of falsehood, some are not

for most witnesses, Rule 609(a)(1) applies the usual Rule 403 balancing test; a witness who is also a
criminal accused, the court may admit the evidence only if it the proponent can prove it is more
probative than prejudicial, a higher standard than 403
o
the degree which the crime reflects on credibility
o
the nearness/remoteness of the prior conviction
o
the similarity of the prior offense with the one charged - this factor weighs against
admissibility when the only theory of admission is impeachment of the accused; if two autothefts are very similar, might come in under 404(b), but not simply for impeachment
o
the extent to which defendant’s testimony is needed for fair adjudication of the trial; if
defendant’s testimony is crucial to defense, if this is admissible, less likely defendant will
testify
o
whether defendant’s credibility is central to the case
RULE 609(a)(2) - Impeachment by Evidence of Conviction of Crime
(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.
NOTES:

evidence that a witness has been convicted of any crime involving dishonesty or false statement shall
be admitted

trial judge has no discretion to weigh probative value

dishonest crimes include: false statement, criminal fraud, false pretense, perjury…

does not include bank robbery/larceny
RULE 613(a) - Prior Statements of Witnesses
(a) Examining witness concerning prior statement. In examining a witness concerning a prior statement made by
the witness, whether written or not, the statement need not be shown nor its contents disclosed to the witness at
that time, but on request the same shall be shown or disclosed to opposing counsel.
NOTES:

rationale: a person who says one thing one time and another thing another time has probably lied or
suffered from memory deficiencies on one of the two occasions

the cross-examiner may accept the witness’ denial or explanation, but also has the right to introduce
extrinsic evidence of the prior statement; extrinsic evidence of the statement could be a
document/testimony by person who knows about statement [extrinsic evidence is controlled by Rule
613(b)]
RULE 613(b) - Prior Statements of Witnesses
(b) Extrinsic evidence of prior inconsistent statement of witness. Extrinsic evidence of a prior inconsistent
statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny that
same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of
justice otherwise require. This provision does not apply to admissions of a party-opponent as defined in rule
801(d)(2).
NOTES:

the statement can be used as to prove the truth of the matter asserted if it was given under oath
[governed by hearsay rules, outlined below]
3. Introduction to Admissibility for Particular Purposes: the Quasi-Privileges
RULE 407
Subsequent Remedial Measures. When, after an injury or harm allegedly caused by an even, measures are
taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the
subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in
the product’s design, or a need for a warning or instruction. This rule does not require the exclusion of evidence
of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of
precautionary measures, if controverted, or impeachment.
NOTES:

incident that causes injury

organization that potentially is liable fixed problem

could be used to prove that organization should have fixed earlier [perhaps met baseline standards, but
injury caused them to be proactive]
RULE 408
Compromise and Offers to Compromise. Evidence of (1) furnishing or offering or promising to furnish, or (2)
accepting or offering or promising to accept, a valuable consideration in compromising or attempting to
compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or
invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations are
likewise not admissible. This rule does not require the exclusion of any evidence otherwise discoverable merely
because it is presented in the course of compromise negotiations. This rule also does not require 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 a criminal investigation.
NOTES:

evidence is irrelevant because offer could be made with a focus on peace, and says nothing about the
strength of the case

traditionally, only offer, not content of negotiations, was excluded
RULE 410
Inadmissibility of Pleas, Plea Discussion, and Related Statements. Except as otherwise provided in this
rule, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who
made the plea or was a participant in the plea discussions:
(1) a plea of guilty which was later withdrawn;
(2) a plea of nolo contendere;
(3) any statement made in the course of any proceedings under Rule 11 or the Federal Rules of Criminal
Procedure or comparable state procedure regarding either of the foregoing please; or
(4) any statement made in the course of plea discussions with an attorney for the prosecuting authority which do
not result in a plea of guilty or which result in a plea of guilty later withdrawn. However, such a statement is
admissible (i) in any proceeding wherein another statement 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 defendant under
oath, on the record and in the presence of counsel.
RULE 409
Payment of Medical and Similar Expenses. Evidence of furnishing or offering or promising to pay medical,
hospital, or similar expenses occasioned by an injury is not admissible to prove liability for the injury.
RULE 411
Liability Insurance. Evidence that a person was or was not insured against liability is not admissible upon the
issue whether the person acted negligently or otherwise wrongfully. This rule does not require the exclusion of
evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or
control, or bias or prejudice or a witness.
CASES:
UNITED STATES V. MEZZANATTO [1995]
FACTS: Defendant was convicted of possession of methamphetamine, and he appealed. The Court of Appeals
reversed and remanded based on finding that defendant cannot waive exclusionary provisions of plea-statement
rules. Certiorari was granted.
RULE: The Supreme Court held that agreement to waive exclusionary provisions of plea-statement rules was
enforceable absent any showing that defendant entered agreement unknowingly or involuntarily.
4. Character and Habit Evidence
CHECKLIST:

offered as character evidence?

what purpose; character a material fact/offered to prove “action in conformity therewith [act
propensity]/mental state/offered to disprove credibility of witness [intrinsic/extrinsic]?

do any exceptions to act propensity apply?

homicide/sexual assault [special rules]

what type; reputation/opinion of a witness who knows person/specific acts
RULE 404 - Character and Habit Evidence
Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes.
(a) Character evidence generally. Evidence of a person’s character or a trait of character is not admissible for
the purpose of proving action in conformity therewith on a particular occasion, except:
(1) Character of accused. Evidence of a pertinent trait of character offered by an accused, or by the prosecution
to rebut the same, or if evidence of a trait of character of the alleged victim of the crime is offered by an accused
and admitted under Rule 404(a)(2), evidence of the same trait of character of the accused offered by the
prosecution;
(2) Character of alleged victim. Evidence of a pertinent trait of character of the alleged victim of the crime offered
by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the
alleged victim offered by the prosecution in a homicide case to rebut evidence that the alleged victim was the
first aggressor;
(3) Character of witness. Evidence of the character of a witness, as provided in rules 607, 608, and 609.
(b) Other crimes, wrongs, or acts. Evidence of other crimes, crimes, wrongs, or acts is not admissible to prove
the character of a person in order to show action in conformity therewith. It may, however, be admissible for
other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence
of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall
provide reasonable notice in advance of 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.
EXCEPTIONS TO THE RULE 404(a) PROPENSITY BAN

character evidence offered by accused - sometimes called “mercy rule,” this exception is created by
Rule 404(a)(1) and lets in evidence “of a pertinent trait of character” [peacefulness/violence]

character of the victim in cases other than homicide or sexual misconduct - allows “pertinent trait of
character of victim” and allows prosecutor to rebut such evidence with character evidence [404(a)(2)]

character trait of peacefulness of the victim at a homicide trial - 404(a)(2) allows prosecutor to
introduce character trait of peacefulness to rebut inference that victim was first aggressor

new exception for character of the accused offered by the prosecution where there has first been an
attack made on the victim’s character by the accused - when accused first introduces evidence to attack
the character of the victim, the prosecution may introduce evidence to rebut the accused’s assertion,
AND attack the character of the accused

character impeachment of a witness
THING THAT LOOK LIKE ACT PROPENSITY EVIDENCE BUT ARE NOT; RULE 404(b)

evidence is not offered to show character, but to show something else, either a trait of personality that
is too narrow to be called character, or something that is not a trait at all

404(a) is ban on act propensity, mental propensity is explicitly sanctioned by 404(b)

some acts in (b) are “acts” in act propensity fashion, but as so specific, and more predictive in character,
as to not be considered simply general character traits

the more situationally specific, the greater predictive power, and the less like “character” it should be
considered
SPECIFIC TYPES OF USES -
MOTIVE: evidence of specific acts may be admissible to prove motive; motive is the reason why a specific
offender acted with a mental state required by the definition of a charge, crime, claim or defense/motive is not
an element of a crime but is offered to prove some non-motive element
OPPORTUNITY: evidence of specific acts may be admissible to prove opportunity; opportunity is access to or
presence at the scene of the crime or in the sense of possessing distinctive or unusual skills or abilities employed
in the commission of the crime charged
IDENTITY: evidence of specific acts may be admissible to prove identity; meaning is limited to referring to a
specific criminal MO, a “calling card”
INTENT OR KNOWLEDGE: evidence of specific acts may be admissible to prove intent or knowledge; evidence
of other acts may be introduced to establish that a defendant did not act mistakenly but rather with the intent
needed to prove a required element of a tort or crime/doctrine of “objective chances” holds that certain, rare
mistakes or occurrences are so unlikely to occur that mistake is impossible
COMMON PLAN, SCHEME, OR DESIGN: evidence of specific acts may be admissible to prove a common plan,
scheme or design; purpose is to prove the existence of a larger plan, scheme, or conspiracy, of which the crime
on trial is a part - each crime should be an integral part of an over-arching plan explicitly conceived and executed
by the defendant of his confederates… shows motive, identity, or intention…
RULE 406
Habit; Routine Practice. Evidence of the habit of a person or of the routine practice of an organization, whether
corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the
person or organization on a particular occasion was in conformity with the habit or routine practice.
NOTES:

habit describes one’s regular response to a repeated, specific situation [walking down a certain hallway
two steps at a time]

habit in a group setting is designated routine practice of an organization

called the probability theory; the probability of someone reacting in a specific, predictable way to a
narrow, specific situation is high
RULE 405
Methods of Proving Character. (a) Reputation of opinion. In all cases in which evidence of character or a trait
of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the
form of opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.
(b) Specific instances of conduct. In cases in which character or a trait of character of a person is an essential
element of a charge, claim, or defense, proof may also be made of specific instances of that person’s conduct.
CASES:
MICHELSON V. UNITED STATES [1948]
FACTS: D claimed that he had been entrapped by the official he had allegedly bribed. He introduced testimony
as to his good reputation. One element of entrapment is predisposition.
RULE: When a defendant puts his character at issue through the introduction of reputation evidence, the
prosecution may ask these witnesses if they have heard of specific acts of bad conduct relating to the defendant.
5. Hearsay Rule and Definition
RULE 801(a-c) - Definitions
(a) Statement. A “statement” is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is
intended by the person as an assertion.
(b) Declarant. A “declarant” is a person who makes a statement.
(c) Hearsay. “Hearsay” is a statement, other than one made by the declarant while testifying at the trial or
hearing, offered into evidence to prove the truth of the matter asserted.
STATEMENT CONTINUED: nodding head generally considered “nonverbal conduct” intended to communicate;
non-assertive conduct, under the FRE does not constitute a statement [ex. evidence that experienced sea captain
inspected boat and then sailed with it, while communicating something similar to captain saying “the boat is fine”
is admissible] - another FRE exclusion from hearsay is testimony about an out-of-court statement that is offered
to prove something the speaker did not intend to assert [ex. in case over landlord’s failure to heat apartment,
“it’s cold in here” and “great place for polar bears” is non-admissible hearsay, but “i need to put on a sweater” is
admissible because the statement is not asserting it is cold, only acting on such a perception]
NOTES:

a party cannot have a witness quote what anyone ever said outside of court [barring
exemption/exception]

a party cannot introduce a document containing words written outside of court [barring
exemption/exception]

out-of-court statement is hearsay only if introduced to prove the truth of what is asserted

“for the truth of the matter asserted” is determined if the statement must be accurate to be relevant

if the purpose for the offer makes the statement relevant without regard to its accuracy, the statement
is non-hearsay

basic definition: witness is not witness to the act to which he is testifying, but to someone repeating
their own recollection instead

monograms, inscriptions and commercial signage - you need to introduce fact that truck said ABC on it,
not to prove ABC actually owned it, and then introduce evidence that ABC wrote “ABC” on their trucks
and drove specific routes that included hit and run location
4-STEP HEARSAY MATRIX

Does the evidence constitute an out-of-court statement?

If so, for what purposes does the offering party offer the out-of-court statement?

If the offering party offers the out-of-court statement for a non-hearsay purpose, is that purpose
relevant, and is its probative value substantially outweighed by risks underlying 403?

If offered for its truth, can the party satisfy the foundational requirements of any exemption/exception?
HIDDEN STATEMENTS

Implied Assertions - judge concludes statement is hearsay; demonstrates an implicit intent to assert the
fact statement is offered to prove

Sub-Assertions - declarant’s intent to assert extends to all sub-assertions; a statement offered to prove
any sub-assertion is hearsay

Invisible Assertions - commonly occurs when witness appears to present own perception when in reality
is a conduit for information supplied by an invisible declarant
COMMON HEARSAY MISCONCEPTIONS

Paraphrasing - no matter how loosely paraphrased, answer is hearsay if offered for truth of contents

Witness is Declarant - when a witness testifies to own out-of-court statement, unless there is a nonhearsay use or exemption/exception, hearsay still applies [if witness is in court, should testify to event,
not to out-of-court statement]

Circumstantial Evidence - inferences are not actually proving truth, yet if the inference depends on the
accuracy of the out-of-court statement it is hearsay

Presence of Officer - there is no general doctrine governing things said in front of officer
STEP 2: IDENTIFYING AN ASSERTION’S NON-HEARSAY PURPOSE

limiting instruction; ex. allowed for limited purpose of showing defendant’s state of mind, not to prove
that what defendant thought was actually true
STEP 3: DETERMINING RELEVANCE OF NON-HEARSAY PURPOSE

non-hearsay use must be relevant: makes a material fact more or less probable than it would without
the evidence

if non-hearsay purpose is relevant, 403 still balances
COMMON NON-HEARSAY USES

words may be introduced not to show what was asserted in them was true, but to show that words
were said; see in a defamation case: was defamatory statement uttered? [ex. was warehouse guarded?
janitor may testify to hearing guards speak because this would answer question and content of their
speech irrelevant; not offered to prove content]

in some jurisdictions, contracts constitute “verbal acts” and can be used to simply see if words that
might form a contract were spoken; contract will be enforced if legal principles independent from
statement’s truth require those words once spoken/written be held as contract

evidence of speaker’s state of mind [ex. if status of gift as a gift depends on speaker calling it a gift,
then truth of him calling it such is irrelevant]

words introduced only to show their effect on the hearer/reader; evidence of state of mind of person
who heard the assertion [ex. truth irrelevant, only perception of hearer when repeating what was said;
was response reasonable based on what was said?]

assertion offered to impeach

assertion offered to provide context and meaning
CASES:
UNITED STATES v. ZENNI [1980]
FACTS: D contended that testimony of government agents, concerning phone conversations they had with callers
to D’s premises after his arrest, wherein the callers stated directions for placing bets, was inadmissible hearsay.
RULE: Non-assertive verbal conduct is not covered by the hearsay rule, FRE 801, and is therefore admissible.
6. Hearsay Exemptions
RULE 801(d)(1)(A) - Exemptions
(1) Prior inconsistent statements. The declarant testifies at the trial or hearing and is subject to crossexamination concerning the statement, and the statement is (A) inconsistent with the declarant’s testimony, and
was given under oath and subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a
deposition, or…
NOTES:

admissibility to impeach witness with inconsistent statement does not require exception/exemption [to
simply show contrast, not to show the prior statement was true]

prior inconsistent statement: any statement by a witness (1) made out-of-court; (2) before the witness
testifies; that (3) conflicts with something the witness says in testimony

when foundation under 801(d)(1)A) is made, not only can statement be used to impeach credibility, but
it can be used for truth of contents

always admissible, but requires that statement be made under oath
RULE 801(d)(1)(B) - Exemptions
(1) Prior consistent statements. The declarant testifies at the trial or hearing and is subject to crossexamination concerning the statement, and the statement is (B) consistent with the declarant’s testimony and is
offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or
motive, or…
NOTES:

does not require out of court-consistent statement be made under oath

any statement made out-of-court by witness before witness’ testimony that reinforces/supports
testimony

not generally allowed as non-hearsay

only purpose is to rebut an express or implied charge of recent fabrication

must show that witness made statement before the time the alleged fabrication/alleged motive to lie
[ex. if witness is accused of lying or bias, proof that witness has said similar things in the past can rebut
this accusation]
RULE 801(d)(1)(C) - Exemptions
(1) Pretrial identifications. The declarant testifies at the trial or hearing and is subject to cross-examination
concerning the statement, and the statement is (C) one of identification of a person made after perceiving the
person; or…
NOTES:

allows prosecutors to offer evidence of identification closer to time of actual events

it witness sees crime, and tell an officer X did it, this identification may be used as substantive evidence
X committed crime; identification through a mug shot has the same result

rationale: identifications of people made prior to trials are likely to be more accurate than during
testimony
RULE 801(d)(2)(A) - Party Admissions
(2) Straight admissions. The statement is offered against a party and is (A) the party’s own statement in either
an individual or a representative capacity or…
NOTES:

offered against the party who made it

ex. if A sues B for reckless driving, and after the accident B said “i didn’t see the light,” A may introduce
this against B at trial

silence may be admitted as an admission when a statement is made in a party’s presence and there is
no response

prevents party sued in one capacity from avoiding by claiming statement was made in a different
capacity
RULE 801(d)(2)(B) - Party Admissions
(2) Adoptive admissions. The statement is offered against a party and is (B) a statement of which the party
has manifested an adoption or belief in its truth, or…
NOTES:

offered against a party

adoption by party/belief in its truth [ex. executive, in a note with attached article, writes “this shows X
is dangerous;” executive has “adopted” article as true and his statement about it is an admission, thus
is admissible]
RULE 801(d)(2)(C) - Party Admissions
(2) Authorized admissions. The statement is offered against a party and is (C) a statement by a person
authorized by the part to make a statement concerning the subject, or…
NOTES:

statement offered against a party

statement made by party’s agent

statement authorized by party [atty’s statement about client can be used against client]
RULE 801(d)(2)(D) - Party Admissions
(2) Employee admissions. The statement is offered against a party and is (D) a statement by the party’s agent
or servant concerning a matter within the scope of the agency or employment, made during the existence of the
relationship, or…
NOTES:




statement
statement
statement
statement
offered against a party [ER]
by party’s agent [EE]
made during employment/relationship
concerns matter within scope of employment
RULE 801(d)(2)(E) - Party Admissions
(2) Co-conspirator admissions. The statement is offered against a party and is (E) a statement by a
coconspirator of a party during the course and in furtherance of the conspiracy.
NOTES:




statement offered against a party
conspiracy exists
statement made by coconspirator, during the conspiracy, and in furtherance of the conspiracy
[writing from jail to cover up conspiracy is considered a new conspiracy; 104(a) question]
Distinguishing exemptions from exceptions: Admitting declarant’s out of court statements into evidence for
their truth when the declarant is available to testify [and be crossed] is a sensible corollary to the policy of
protecting litigant’s opportunity to cross examine adverse witnesses. This policy underlies rule 801. Rules 803,
804 and 807 are supported by the idea that declarant’s out of court statements are admissible, regardless if
declarant is available, when made in circumstances suggesting that they are likely to be accurate.
CASES:
TOME V. UNITED STATES [1995]
RULE: 801(d)(1)(B) permits the introduction of a declarant’s consistent out-of-court statements to rebut a
charge of recent fabrication or improper influence or motive only when those statements were made before the
charged recent fabrication or improper influence or motive.
BOURJAILY V. UNITED STATES [1987]
FACTS: Charged with conspiracy to distribute cocaine. Coconspirator talked about defendant and took deliver in
defendant’s car.
RULE: Rule 104(a) required trial judge to determine if adequate foundation had been laid by a preponderance of
the evidence [not reasonable doubt] that a conspiracy existed. Then determine if statements were made in
furtherance of conspiracy. The court may use the statement itself to determine if whether a conspiracy exists.
7. Hearsay Exceptions: Availability of Declarant Immaterial [ADI]
RULE 803(1) - Hearsay Exceptions; Availability of Declarant Immaterial
(1) Present sense impression. A statement describing or explaining an event or condition made while the
declarant was perceiving the event or condition, or immediately thereafter.
NOTES:

substantial contemporaneity of event and statement negative the likelihood of deliberate or conscious
misrepresentation; if the witness is the declarant, he may be examined on the statement - if not, he
may be examined as to the circumstances as an aid in evaluating the statement.

recognizes that in many, if not most, instances precise contemporaneity is not possible, and hence a
slight lapse is allowable

must be a description or explanation of the event or condition; the assumption being that spontaneity,
in the absence of a startling event, may extend no farther

look for personal knowledge; descriptive conversations are good, inadmissible opinions are not
RULE 803(2) - Hearsay Exceptions; Availability of Declarant Immaterial
(2) Excited utterance. A statement relating to a startling event or condition made while the declarant was
under the stress of excitement caused by the event or condition.
NOTES:






startling event
event causes stress/excitement
statement must only relate to event, need not describe
rationale: any motive to lie is overcome by the shock caused by the event
statement must be made while under shock [unlike present sense which requires only substantial
contemporaneity]
[advisory committee] judge can base decision on relevance on inadmissible evidence
RULE 803(3) - Hearsay Exceptions; Availability of Declarant Immaterial
(3) Then existing mental, emotional, or physical condition. A statement of the declarant’s then existing
state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain,
and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed
unless it relates to the execution, revocation, identification, or terms of declarant’s will.
NOTES:

when people say what they think/feel there is no memory issue

covers statements about what a person is feeling at the time he or she speaks, both physically and
emotionally [ex. “I feel terrible,” would be admissible]

may show 1 of 2 things; the testimony was something speaker believed, and the testimony is true

statements of belief are covered by this exception if speaker’s belief, accurate or not, is relevant [ex. if
belief would form a motive]

while memory to prove a fact remembered can be excludable, a plan/statement about future intended
activity, for ex., is admissible as relevant to the issue of whether future intended activity occurred
RULE 803(4) - Hearsay Exceptions; Availability of Declarant Immaterial
(4) Statements for purposes of medical diagnosis or treatment. Statements made for purposes of medical
diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the
inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis
or treatment.
NOTES:

statement made for the purpose of diagnosis/treatment [ex. diagnosis with no aim towards treatment,
such as in preparation for trial, still is covered and thus makes evidence admissible; although patient
has motive to lie, the adversary has opportunity to point this out]

statement describes cause/external source of past/present pain

reasonably pertinent to diagnosis/treatment [ex. “hit his head while diving” is admissible while “hit his
head while diving where no warning sign posted” not]

this exception does not require the statement to be made by the person in need of medical assistance;
statement can be made on behalf of the person [ex. severely wounded person might be incapable, but
rationale behind assumed honesty of statement applies]
RULE 803(5) - Hearsay Exceptions; Availability of Declarant Immaterial
(5) Recorded recollection. A memorandum or record concerning a matter about which a witness once had
knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to
have been made or adopted by the witness when the matter was fresh in the witnesses’ memory and to reflect
that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself
be received as an exhibit unless offered by an adverse party.
NOTES:

memo, report, record, etc.

proponent of the document must show witness once had knowledge, does not currently have adequate
knowledge to testify “fully and accurately,” and that the witness made/adopted a record when memory
was fresh

record must correctly reflect knowledge

if given something refreshes memory: present recollection refreshed; if cannot be refreshed, but
something written down is used to reflect former stance: past recollection refreshed

unless offered into evidence by an adverse party, item can only be read into evidence, not introduced as
an exhibit
RULE 803(6) - Hearsay Exceptions; Availability of Declarant Immaterial
(6) Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form,
of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted
by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the
regular practice of that business activity to make the memorandum, report, record, or data compilation, all as
shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule
902(11), Rule 902(12), or a statute permitting certification, unless the source of information or the method or
circumstances of preparation indicate lack of trustworthiness. The term “business” as used in this paragraph
includes business, institution, association, profession, occupation, and calling of every kind, whether or not
conducted for profit.
NOTES:







memo, report, record, etc.
made at/near time
kept in regular course of business [business as business, not for litigation; see below train wreck case]
made/transmitted by person with knowledge and had business duty
witness must testify about how the record meets these requirements
report produced for litigation may be admissible
all provisions subject to trustworthiness principle
A business record containing a chain of multiple-hearsay is admissible if each statement in the chain is either: not
hearsay for the purpose for which it is offered; within some other exemption or exception; or made by a person
under a "business duty" to make such statements. "Business duty" means that it is a regular part of the person's
job to make or record such statements.
RULE 803(8) - Hearsay Exceptions; Availability of Declarant Immaterial
(8) Public records and reports. Records, reports, statements, or data compilations, in any form, of public
offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to
duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases
matters observed by police officers and other law enforcement personnel, or (C) in civil actions and proceedings
and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to
authority granted by law, unless the sources of information or other circumstances indicate a lack of
trustworthiness.
NOTES:

justified by same rationale as business records exception

A-C are qualified by trustworthiness provision

reports of factual findings from government investigations are allowed to be admitted by any party in a
civil case, and by the defendant in a criminal case [not allowed by state in criminal case because the
desire to obtain a conviction reduces assumption of truthfulness; police officer no, but office clerk in the
police department might not be barred by 803(8)(B) for use by defendant]

routine activities of office/agency
CASES:
MUTUAL LIFE INSURANCE CO. OF N.Y. v. HILLMON [1892]
FACTS: Letters written by X stating that he was planning to go to Colorado were held admissible as proof that he
had in fact gone there.
RULE: A person’s out-of-court declarations of state of mind may be admissible not only as proof of the person’s
state of mind at the time the statements were made, but also to show the probability that he committed a
subsequent act pursuant to that declared state of mind.
UNITED STATES v. PHEASTER [1976]
FACTS: The trial court admitted Into evidence the hearsay statements of the still-missing victim of a kidnap ransom conspiracy about whom he was going to meet when he disappeared.
RULE: The Hillmon-doctrine permits introduction of hearsay declarations as evidence that the declarant carried
out his intention to perform the act they indicate it was his intention to perform, even if its accomplishment
requires action by others.
PALMER v. HOFFMAN [1943]
FACTS: The engineer of a train involved in an accident, who died before trial, made a statement to the railroad
company regarding the accident. It was the custom of the railroad to record such statements whenever there was
an accident. This statement was not allowed in evidence.
RULE: A record is considered to be "in the regular course of business" if made systematically or as a matter of
routine to reflect events or transactions of the business.
8. Hearsay Exceptions: Declarant Unavailable [DU]
RULE 804(b)(1) - Hearsay Exceptions; Declarant Unavailable
(1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding,
or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party
against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an
opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.
I.
NOTES:

declarant unavailable; unavailability means has a privilege that permits the declarant to refuse to reveal
communication, refuses to testify about subject matter, cannot remember subject matter/death or
illness

testimony given at prior hearing in same or different proceeding

offered against same party [civil case: predecessor in interest]

opportunity to examine/develop testimony

similar motive to examine exists

[Advisory Committee Note] Both oath and opportunity to cross-examine were present in fact. The
only missing one of the ideal conditions for the giving of testimony is the presence of trier and opponent
[demeanor evidence]. Under the exception, the testimony may be offered (1) against the party against
whom it was previously offered or (2) against the party by whom it was previously offered.
RULE 804(b)(2) - Hearsay Exceptions; Declarant Unavailable
(2) Statement under belief of impending death. In a prosecution for homicide or in a civil action or
proceeding, a statement made by a declarant while believing that the declarant’s death was imminent,
concerning the cause or circumstances of what the declarant believed to be impending death.
NOTES:




declarant unavailable per 804(a)
homicide case or all civil actions
declarant believes death is imminent
statement only shielded on the topic of the cause or circumstances of impending death
RULE 804(b)(3) - Hearsay Exceptions; Declarant Unavailable
(3) Statement against interest. A statement which was at the time of its making so far contrary to the
declarant’s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability,
or to render invalid a claim by the declarant against another, that a reasonable person in the declarant’s position
would not have made the statement unless believing it to be true. A statement tending to expose the declarant to
criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly
indicate the trustworthiness of the statement.
II.
NOTES:

declarant unavailable

statement against interest

interests considered: pecuniary, proprietary, civil liability, criminal liability

[in italics] must be corroborative of other evidence pointing to D’s innocence

if statement is mixed (inculpatory and on another topic), then only inculpatory portion is admissible
CASES:
WILLIAMSON V. UNITED STATES [1994]
FACTS: A cop stopped a car driven by Harris. The cop found cocaine in the car. Harris told police that he had
gotten the cocaine from an unidentified person and that it belonged to Williamson. He also said that he was
supposed to deliver the cocaine that night to a specific dumpster. Then Harris said he was delivering cocaine for
Williamson. Harris refused to testify.
RULE: 804(b)(3) only to admits those declarations or remarks by Harris that were individually self-inculpatory;
Rule 804(b)(3) does not allow admission of non-self-inculpatory statements, even if they are made within a
broader narrative that is generally self-inculpatory. A statement is not self-inculpatory merely because it is part
of a fuller confession, especially when the statement implicates someone else. The arrest statements of a
codefendant are viewed with suspicion. Due to his strong motivation to implicate the defendant and to exonerate
himself, a codefendant's statements about what the defendant said or did are less credible than ordinary hearsay
evidence. Whether the statement was sufficiently against the declarant's penal interest (truly self-inculpatory)
can only be answered in light of all the surrounding circumstances.
NOTES:

distinguish declarations against interest from admissions

declaration against interest is a statement by a 3rd party, not by a party to the litigation or someone in
privity with a party, as with admissions

unavailability is required when dealing with a declaration against interest, but not in dealing with
admissions

declaration against interest must be based on particular personal knowledge of the declarant; an
admission need not

declaration against interest must be against interest when made; an admission need only be
inconsistent with the present position taken by the admitter
9. Residual Hearsay and the Confrontation Clause
RULE 807 Residual Exception. A statement not specifically covered by Rule 803 or 804 but having equivalent
circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, if the court determines that (A)
the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for
which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C)
the general purposes of these rules and the interests of justice will best be served by admission of the statement
into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes
known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair
opportunity to prepare to meet it, the proponent’s intention to offer the statement and the particulars of it,
including the name and address of the declarant.
NOTES:

lack of other means of evidence which would be equally/more probative

remember the element of notice
Amendment VI - Jury trials for crimes, and procedural rights
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of
the State and district wherein the crime shall have been committed, which district shall have been previously
ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the
witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the
Assistance of Counsel for his defense.
CASES:
IDAHO V. WRIGHT [1990]
FACTS: Defendant was convicted in the Fourth Judicial District Court on two counts of lewd conduct with a minor
less than 16 years of age. Defendant appealed. The Supreme Court of Idaho reversed and remanded.
RULE: On writ of certiorari, the Supreme Court held that hearsay statements of child victim lacked particularized
guarantees of trustworthiness required for admission under confrontation clause. Conviction was based on
pediatrician’s suggestive manner of questioning, casting doubt on the reliability of the statements.
LILLY V. VIRGINIA [1999]
FACTS: Defendant was convicted of capital murder and other crimes, and he was sentenced to death. Conviction
based on defendant’s accomplice’s confession which implicated both. Defendant petitioned for writ of certiorari.
RULE: The Supreme Court held that the hearsay exception for declarations against penal interest was not firmly
rooted. Testimony did not satisfy trustworthiness requirement; accomplice was drunk during confession,
confession was elicited through leading questions, and the accomplice had motivation to minimize own
responsibility.
CRAWFORD V. WASHINGTON [2004]
FACTS: Defendant was convicted of first-degree assault while armed with deadly weapon. At time of assault, wife
was arrested and subsequently gave taped statement which contradicted self-defense theory. Wife did not testify
at trial on “marital exception” and so the tape was introduced under admission against penal interest.
RULE: Statement should have been excluded. “Testimonial” in nature; while not clear, includes affidavits,
statements to the police, depositions, courtroom testimony, and those “made under circumstances which would
lead an objective witness reasonably to believe… the statement would be available” later. Protection against
testimonial statements was core of Confrontation Clause; testimony by non-testifying declarants only admissible
if defense has had an opportunity to crass-examine.