EVIDENCE - Attack Outline - Summary (pdf)

Evidence: Outline
If rule does start with 4 or 9, apply 104(b). If rule does NOT start with 4 or 9, use 104(a).
Erie rules → 601 (W competency), 302 (presumptions), & 501 (privileges) – look to CA law for these
FRE 103(a)
Rulings on Evidence
To preserve an evidentiary issue for appeal, a party must object to the court’s ruling. This protects the system against wasteful
circumstances in which a party might tolerate an incorrect ruling in the hope of obtaining a favorable result at trial, but then seek reversal on the
evidentiary ground if the result was unfavorable.
FRE 104(a)
Preliminary Questions:
The trial judge, not the jury, decides whether evidence is admissible. For almost every possible objection to admission, the judge rules. There is
Questions of Admissibility
only one specific type of objection that is left for the jury to rule on, “conditional relevance”, described in Rule 104(b).
FRE 104(b)
Conditional Relevance
This is the one type of objection to admission that the jury decides itself (not ruled on by the judge). If the party seeking to introduce an item of
evidence agrees that it is not relevant by itself but states that it will be relevant when some other fact is established that provides a context for it,
this is “conditional relevance” and the jury will hear it. It typically applies to issues arising out of Article IV and IX of the FRE.
FRE 201(a), (b)
Judicial Notice: Scope of
This rule only applies to adjudicative facts. “Adjudicative facts” are facs that are specific to a particular litigation, such as whether a certain street
is in the business or residential district. “Legislative facts” refers to more general facts about society and human nature that are not available for
rule and Kinds of facts
judicial notice. The rule is that a judicially noticed fact must be one not subject to reasonable dispute because it is either generally known or is
capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. Because elements of crimes
must be proven beyond a reasonable doubt, no judicial notice of an element may be taken.
FRE 201(g)
Instructing the Jury
In a civil action, court shall instruct the jury to accept JN fact as conclusive. In criminal case, court shall instruct jury that it may, but is not
required to, accept as conclusive any JN fact.
FRE 301
Presumptions in Civil
Typically, the person who wants to change the status quo (P in civil, gov’t in criminal) bears the burden of production/persuasion. In all civil
Actions and Proceedings
actions, a presumption imposes on the party against whom it is directed the burden of production, but does not shift the burden of persuasion.
This “Thayer” view is also known as the “bursting bubble” theory and is different than the “Morgan” view that shifts the burden of persuasion as
FRE 302
Applicability of State Law
In civil actions and proceedings, the effect of a presumption respecting a fact which is an element of a claim or defense as to which State Law
supplies the rule of decision is determined in accordance with State law.
Burden of Production
Burden of moving forward. Meaning who has to come forward with what type of evidence in order to proceed. The standard is whether there is
sufficient evidence to prevent the other party from getting a directed verdict/JNOV (sufficient evidence to raise a question for the jury)
Burden of Persuasion
Aka the “Risk of Non-persuasion”, this burden determines who has to convince the fact finder that a certain fact is true, and by what standard.
Beyond a reasonable doubt for criminal, clear and convincing for some civil, and preponderance of the evidence (> .5) for most civil.
FRE 401
Relevance defined
“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. Therefore, evidence is relevant if it has any effect on the likelihood
that a disputed fact is true.
FRE 402
FRE 403
Relevant Evidence is
Exclusion of Relevant
Evidence Based on Prejudice
FRE 404(a)
Character Evidence Not
Admissible to Prove Conduct
FRE 404(a)(1)
Character of Defendant
All relevant evidence is admissible, except as otherwise provided by the Constitution, Acts of Congress, these rules, or SC authority. Evidence
which is not relevant is not admissible.
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. This balancing
test allows trial courts to exclude relevant evidence where its admission would harm the judicial process. Ballou v. Henri (lower court wrongly
excluded blood test because judge did not think it was reliable); Old Chief (D was willing to stipulate to prior crime, but motioned to restrain gov’t
from mentioning)
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. This is the rule against “propensity” evidence.
Despite the general rule against the propensity inference, a criminal D may introduce evidence of “good” character related to the type of offense
for which the D is being tried. If the D takes advantage of this opportunity, the prosecution is entitled to introduce opposing character evidence.
If the D takes advantage of Rule 404(a)(2) producing character evidence concerning an alleged victim, then the prosecution can offer similar
character evidence about the defendant. Michelson (D brought 5 W to show good reputation so P’s specific conduct evidence on cross was ok to
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Evidence: Outline
FRE 404(a)(2)
Character of Alleged Victim
Evidence of a pertinent trait of character of the alleged victim of the crime accused, or by the prosecution to rebut the same, is admissible. (e.g. to
establish self-defense involving an attack by D on another person, D can introduce evidence that V had a violent character.
FRE 404(a)(3)
Character of Witness
Allowed for Impeachment
Character Evidence: other
crimes, wrongs or acts
Character evidence that would otherwise be prohibited due to the general bar against propensity evidence is admissible for impeachment purposes
under Rules 607, 608 and 609.
The general bar against propensity evidence excludes evidence when the only rationale for admission is to support inferences about a person’s
character and the person’s having acted in conformity with that character. Rule 404(b) confirms that information about a person’s past conduct
that would naturally lead to inferences about the person’s character may be introduced for different purposes, such as proving intent, motive, plan
or preparation, special knowledge, or identity. US v. Cunningham (Demerol addiction could be used to show motive for stealing it. Court allowed
evidence of addiction but not actual prior conviction); United States v. Carillo (identity signature exception – prior sales involving balloon drug
sales ok to show MO)
Character evidence requires a two-step analysis. The first step, treated in Rule 404, is determining whether any information related to character is
allowed to be introduced. The second step, treated in this rule, is determining how that character information may be proved. In every situation
where character information is admissible, it may be shown with opinion or reputation testimony. Information about specific past acts relevant to
establishing a person’s character may be asked about on cross-examination.
In cases where character is in issue, that is character is an essential element of the crime, proof may also be made by specific instances of the
person’s conduct. (Or on cross examination under 405(a)).
Proof that a person has a habit is admissible, since it is different from proof that a person has a particular character trait. A habit of custom is a
routine way of doing something that a person or organization accomplishes in a uniform way, free from individual thought or judgement about
how to do it.
Evidence that a D changed or repaired something after it was allegedly involved in an injury is not admissible to establish D’s negligence or a
product’s defectiveness. We don’t want to discourage reevaluation of risks in light of injury. If there is a rationale for proving the change to
establish something other than negligence or product defect, proof of the change may be admitted.
FRE 404(b)
FRE 405(a)
Proving Character:
Reputation or Opinion
FRE 405(b)
Proving Character: Specific
Habit; Routine Practice
FRE 406
FRE 407
Subsequent Remedial
FRE 408
Compromise and Offers to
Evidence about a settlement or statements made in settlement negotiations may not be admitted with respect to the validity of the claim involved
in the settlement or settlement negotiations. The evidence may, however, be admitted on any other rationale such as proving bias, prejudice of a
witness, ownership, impeachment. Davidson v. Prince (statement must be part of negotiations to qualify)
FRE 409
FRE 410
Payment of Medical
Inadmissibility of Pleas
Information about medical payments and promises of medical payments is not admissible to show liability for the injury. Statements made while
paying of promising can be admitted, in contrast to the Rule 408 treatment of statements made in settlement negotiations.
Certain pleas and plea bargaining statements are inadmissible except to provide a full context for partial revelation of plea bargaining statements
or where a case involves perjury.
FRE 411
Liability Insurance
FRE 412(a), (b)
Sex Offense Cases:
Relevance of Alleged
Victim’s Past Sexual
FRE 413
Evidence of Similar Crimes
in Sexual Assault Cases
Evidence of insurance may not be admitted to show liability for negligence or other wrongful action, but other rationales such as proof of agency,
ownership, control, bias or prejudice, can provide a basis for admission.
This is contrary to typical character evidence rule. This “rape shield” provision applies to all types of sexual misconduct cases and says evidence
about a person’s past sexual conduct and sexual traits may not be admitted to show how he or she acted in a situation that is the basis for a sex
offense charge. In criminal cases, the general prohibition does not apply to evidence that (b)(1)(A) supports a claim that someone other than D
was the source of the semen, B) occurred with the D and supports a claim of consent, C) is so crucial that exclusion would be unconstitutional. In
a civil case, the general prohibition does not apply if the probative value substantially outweighs the danger of harm to the victim and unfair
prejudice to any party. State v. Cassidy (Conn. – prior sex with D okay but sex with other partner where she also freaked out was not ok)
Evidence of a D’s past sexual offense is admissible to support an inference that his or her commission of such an act in the past increases the
likelihood that he or she committed the charged offense. Because evidence of past sexual offenses is so prejudicial, a notice provision requires
that the D have warning prior to its introduction.
FRE 414
Evidence of Similar Crimes
in Child Molestation
Evidence of Similar Acts in
Civil Cases Concerning
Sexual Assault or Child
FRE 415
This is parallel to Rule 413 except that it deals with child molestation cases rather than “sexual assault” cases.
This allows character evidence to be introduced in a civil case as relevant to the issue of someone’s out-of=court conduct. It allows introduction
of evidence of a party’s past sexual offsens or child molestation to support an inference that his or her commission of such an act in the past
increases the likelihood that he or she committed the conduct charged in the civil suit.
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Evidence: Outline
FRE 501
FRE 503 (prop)
Attorney-Client Privilege
FRE 504 (prop)
Physician-Patient Privilege
FRE 505 (prop)
Husband-Wife Privilege
News Gathering Privlege
FRE 509 (prop)
State Secrets
FRE 510 (prop)
Informants Identification
FRE 601
Witnesses: Competency
FRE 602
Witnesses: Lack of Personal
FRE 603
Witness: Oath or
Who May Impeach
FRE 607
FRE 608(a)
Impeach Using Opinion &
No specific privilege provisions have been adopted as part of the federal rules, although detailed provisions have been proposed by the drafters.
Privilege law, therefore, is open to traditional common law development. In civil cases, state privilege law governs where an issue is governed by
state law.
Policy is to provide a higher quality of representation and encourage honest discourse with legal counsel. Without the privilege, clients might not
disclose facts favorable to their case to their attorneys. The proposed rule states that a client is a person who is rendered legal services by a lawyer
OR who consults with a lawyer with a view to obtaining legal services. A lawyer is anyone reasonably believed by client to be authorized to
practice law in any state/nation. General rule is that client has privilege to refuse to disclose and to prevent any other person from disclosing
confidential communications made for the purpose of facilitating the rendition of professional legal services to client. Applies between client and
lawyer, lawyer and staff, etc. The client holds the privilege and the privilege survives death. The privilege does not apply if services sought
would enable someone to commit or plan what client should have reasonably known was a crime or fraud. US v. Zolini.
1) work product privilege – materials prepared for litigation by attorney are privileged unless there is a showing of substantial need AND party
cannot without undue hardship obtain substantial equivalent elsewhere.
Federal does not recognize. Some states do.
Psychotherapist is any person authorized to practice medicine or reasonably believed by patient to be, while engaged in the diagnosis or treatment
of mental conditions. A communication is confidential if it is not intended to be disclosed to third parties. Rule: A paitent has a privilege to
refuse to disclose and to prevent any other person from disclosing confidential communications, made for the purposes of diagnosis or treatment
of his mental or emotional condition. The privilege may be claimed by patient, guardian, or personal representative of decased. It does not apply
where the mental condition is an element of the claim or defense.
An accused in a criminal proceeding has a privilege to prevent his spouse from testifying against him. The privilege may be claimed by the
accused or by the spouse on his behalf. Exceptions in situations where 1) they are suing each other, 2) matters prior to marriage.
Nothing at common law, but some sates have enacted including CA. CEC 1070 – refusal to disclose news source. Others include Clergy 103034, Secrecy to vote CEC 1050, trade secrets 1060, domestic violence CEC 1037.
State secrets are governmental secrets relating to national defense/international relations of the US. The gov’t may refuse to provide evidence and
prevent a person from giving evidence upon showing of reasonable likelihood of danger that evidence will disclose a state secret or official
information. The Department head must formally claim the privilege. Privilege would not apply in criminal cases. The government would either
have to present the evidence or drop the case.
The gov’t or state may refuse to disclose the ID of a person who furnished info relating or assisting in investigation of illegal activity to a law
enforcement officer or member of legislative committee. The privilege must e claimed by the appropriate gov’t representative and it does not
apply where the ID is voluntarily disclosed. The rational is the necessity and public interest in effective law enforcement. A balancing test is used
by judge to determine if the testimony is crucial. Public interest v. D’s right to prepare a defense. The material W rule says that W cannot have
actually participated, just informed.
In contrast to the common law, virtually all people are competent as witnesses under the Federal Rules. The jury simply decides how credible the
witness is when weighting their testimony. Where state law governs a claim, state competency law applies. In civil cases, state law determines
competency where state law rule is the elemtn of the claim/defense. .
If someone testifies as a lay witness, not an expert, evidence must be introduced that could support a jury finding that the witness has direct
knowledge of the subject of his or her testimony. That evidence may be introduced as part of the witness’s own testimony. This rule is subject to
FRE 703 on expert opinion.
The requirement of an oath or affirmation to tell the truth.
Impeachment is attempting to discredit a witness. There are five main methods of impeachment, including impeachment by 1) contradiction, 2)
prior inconsistent statements, 3) character (bad acts, opinon/reputation, conviction), 4) capacity, and 5) bias/interest. The credibility of a witness
may be attacked by any party, including the calling witness. This rejects the common law requirement that an offering party vouch for the honesty
of its witness. US v. Hogan (Gov’t put D’s pilot on stand to impeach with other hearsay evidence; Rule: cannot use prior inconsistent statement
by W under guise of impeachment where primary purpose is to get evidence in that otherwise is not allowed).
Opinion and reputation evidence may always be introduced to detract from the credibility of any witness. This type of evidence may also
be introduced to support the credibility of any witness whose credibility has been attacked in any way. However, you cannot bolster your
own witnesses by proving their “good” character.
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Evidence: Outline
FRE 608(b)
Impeach: “Bad Acts”
(Specific Instances of
Impeachment by
FRE 609(a)(1)
Impeach: Prior Crimes
Punishable by Death or
Imrpisonment > 1 yr
FRE 609(a)(2)
Impeach: Prior Crime
Involves Dishonesty
FRE 611(b)
Scope of Cross-Examination
FRE 611(c)
Leading questions
FRE 612
Present Recollection
Prior Inconsistent Statement
FRE 613(b)
FRE 701
FRE 702
Opinion Testimony by Lay
Testimony by Experts
FRE 703
Basis of Opinion Testimony
by Experts
FRE 704
Opinion on Ultimate Issue
Past conduct of any witness, relevant to the character trait of truthfulness, may be asked about in cross-examination of the witness or in crossexamination of another witness who has testified in support of the witness’s credibility. Extrinsic evidence may not be used unless it is a
crime per FRE 609 or if it is relevant in some way other than to show W’s character for truthfulness. Extrinsic evidence may be okay on cross
examination, at discretion of court, using the FRE 403 test. US v. Owens.
(NOTE: revision of 608(b) appears to have gotten rid of collateral test so the only issue is FRE 403 (e.g. collateral matters substantially
outweighed via dangers of confusion/time considerations).
Collateral Test – could fact have been shown in evidence for purpose other than contradiction? State v. Oswalt (if yes, it is okay)
A aprty may not introduce extrinsic proof that particular details of a witness’s testimony are false unless those details involve a topic that would be
relevant in the trial whether or not a witness had earlier given testimony about it. If it has no independent significance, the topic is “collateral” and
evidence that will only show a mistake or false statement regarding a collateral topic is prohibited from being introduced extrinsically. However,
during cross-examination of the witness, they may be questioned but no matter what answer they give, additional extrinsic evidence would be
Exceptions to Collateral Test for 1) bias, 2) capacity, 3) prior crimes, and 4) character for truthfulness.
If a witness, other than D, has been convicted of a felony, evidence of the conviction shall be admitted subject to FRE 403 (not allowed if its
probative value on the topic of the witness’s credibility is substantially outweighed by the risk of prejudicial effect on the D). If a witness is a
criminal D, such evidence shall be admitted unless its probative value is outweighed in any degree by the risk of prejudice. (Unless conviction
was >10 yrs ago. Rule 609(b))
If any witness has been convicted of a crime involving dishonesty or false statements, such as perjury, evidence of the conviction shall be
admitted. FRE 403 does NOT apply. (Unless conviction was >10 yrs ago. Rule 609(b)) Conviction is not admisissible if there has been a pardon
or certificate of rehabilitation or finding of innocence.
Attacking W’s credibility base on sensory disability, lack of memory, mental disorders, or lack of knowledge is allowed and is not subject to
the collateralness test. US v. Lindstorm.
Cross-examination may cover only the topics raised in direct examination and matters affecting the credibility of the witness, unless the judge
allows a broader scope.
Leading questions are allowed on cross-examination and in examining an opposing party or a hostile witness. In direct examination of a party’s
own witness, they are only allowed “to develop” the testimony. Improper questions include “Do you still beat your wife?”
When a witness uses a document or something else to refresh his or her recollection and then testifies from their “present recollection refreshed”,
the opposing party is entitled to see the document, cross-examine the witness about it, and introduce parts of it that are relevant to the testimony.
Ordinarily, if a party wants to introduce a witness’s past statement, rather than just ask the witness about it, the witness must be given an
opportunity to comment specifically on that past statement, and the opposing party must also have an opportunity to question the witness about it.
Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless witness gets opportunity to explain or deny or justice
requires it. This does not apply to party admissions under 801(d)(2).
A witness may speak in terms of opinions if that style of narration makes the testimony clearer. It must be 1) rationally based on the perception of
W, 2) helpful to clear understanding of W’s testimony, and 3) not based in scientific, technical or other specialized knowledge.
Where expertise from an identifiable field will assist the finder of fact, opinion testimony by an expert in the field is permitted. The trial court
must determine whether the witness’s science or technology is “reliable” and whether the witness has applied that expertise “reliably”. W can be
qualified as an expert by knowledge, skill, experience, training or education
An expert can base testimony on anything the expert has heard at te trial, anything that experts in the field reasonably rely on (including hearsay),
whether or not that material is admissible (hearsay is an acceptable basis but give limiting instruction that the material should not be used for the
truth of the matter asserted – People v. Gardeley. The expert can only reveal otherwise inadmissible information that was the basis of their
testimony if the judge concludes that its probative value outweighs any prejudicial effect. (Note: an expert’s testimony does not have to include
the basis for the opinion it states, but that basis must be given on cross-examination if it is requested. Rule 705).
a) Testimony of an expert may contain conclusions on issues that the trier of fact must decide. b) however, experts in criminal cases are
prohibited from expressing an opinion on the specific issue of a D’s possession of a mental state that is an element of a crime. John Kinckley
Memorial Act (cannot testify to ultimate issue of mens rea).
Daubert Test (Daubert v. Merrell Dow) – no “general acceptance” test. The Frye rule requiring expert opinion to be based on techniques
“generally accepted” to be reliable in community does not survive FRE 702. The knowledge must be scientific, technical or otherwise
specialized, and must assist the trier of fact to understand evidence/facts at issue. Judge is the gatekeeper under FRE 104(a) and considers
factors like 1) has proposition been tested, 2) subjected to peer review, 3) known error rates, and 4) general acceptance in the community.
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Evidence: Outline
FRE 801(a), (b),
Definition of Hearsay
FRE 801(d)(1)(A)
Prior Inconsistent Statement
Under Oath is Not Hearsay
Consistent Statement
Offered to Rebut Charge of
Recent Fabrication
Prior Identification of a
FRE 801(d)(1)(B)
FRE 801(d)(1)(C)
FRE 801(d)(2)
Party Admissions
FRE 801(d)(2)(B)
Adoptive Admissions
FRE 801(d)(2)(C),
Agents & Employees
FRE 801(d)(2)(E)
Admission by Coconspirator
FRE 802
Hearsay Rule
FRE 805
Hearsay within Hearsay
FRE 803
FRE 803(1)
Hearsay Exceptions;
Availability of Declarant
Present Sense Impression
FRE 803(2)
Excited Utterance
“Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the
matter asserted. Therefore, a statement made by anyone out of court is “hearsay” if the proponent seeks to introduce it to support a conclusion that
the information it asserts is true. A person’s words in speech or writing and a person’s conduct can all be statements under the hearsay rule, if the
person intended them as an “assertion” or to convey information. US v. Zenni (calls made asking to place bets while officers were present –
evidence was ok because the best were implied assertions, not hearsay) Estate v. Murdock (non-hearsay use – officer could testify to hearng
husband say “I’m still alive” because dead people don’t talk); Subramanian v. Public Prosecutor (non-hearsay use - D can testify about what
terrorist said to him because it wasn’t for truth but to show the impact it had on D believing it); Vineyard v. Vineyard funeral Home (evidence that
people had complained about slippery surface was okay to show D’s knowledge of problem, but not to show the surface was slippery when wet);
Ries Biologicals v. Bank of Santa Fe (independent legal meaning)
A witnesses out-of-court statement that is inconsistent with trial testimony of witness is not hearsay if the prior inconsistent statement was made
under oath subject to penalty of perjury. The most common use of this is for impeachment purposes.
A prior statement that is consistent with declarant’s trial testimony is not hearsay if offered to rebut an express or implied charge against the
declarant of recent fabrication or improper influence or motive. A prior consistent statement does not have to be made under oath to be
A prior statement of a declarant testifying at the trial or hearing and subject to cross-exaimination that identifies a person after having perceived
that person. US v. Owen (W struck on head by D identified D pre-trial and then lost memory – Confrontation Clause not violated by admission of
statement of W despite difficulty in cross-examining regarding the basis of the ID)
At common law, admissions are an exception to the general rule excluding hearsay. Under the FRE, admissions are treated as outside the
definition of hearsay. An admission is any statement a party ever made out of court that is relevant for use against the party. The rule classifies a
variety of types of admissions, ranging from a party’s own statement to statements made by a party’s agent, employee or coconspirator. Reed v.
McCord (personal knowledge of declarant is not required)
A statement which the party manifested an adoption or belief in its truth is NOT hearsay. Silence can constitute adoption if under the totality of
circumstances a reasonable person would protest the statement if it were untrue. Whether D intended to adopt is a preliminary question for the
judge under 104(a). US v. Hoosier (D did not deny girlfriend’s statement in front of a friend who already knew bank robbery plans – held to have
adopted the statement)
A statement by a person authorized by the party to make a statement is NOT hearsay and 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 is NOT hearsay. Statement alone is not
sufficient to establish declarant’s agency or employment relationship. Big Mack Trucking Co, Inc v. Dickerson
A statement by a coconspirator of a party during the course and in furtherance of the conspiracy is NOT hearsay. The statement is okay even if
made before D joined the conspiracy. Judge determines existence of conspiracy and D’s involvement. Bourjaily v. United States (preponderance
of evidence standard)
Hearsay is not admissible except as provided by these rules, etc. Although the rule is written in absolute terms, there may be situations in which
excluding the evidence on grounds of hearsay would violate a criminal D’s constitutional right to present evidence. The reason is that there is no
way to test for inaccuracies of perception, memory, sincerity or ability to relate via cross-examination.
Hearsay within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay
rule provided in these rules. Out-of-court statements that themselves contain additional statements may be admitted, so long as each statement can
overcome a hearsay objection. A police officer’s notebook might contain a quote from someone who claimed to have seen a car accident. To be
admissible, both hearsay (the words of the eyewitness and the written words of the police officer) have to be overcome. The eyewitness’s might
be overcome by present sense impression and police officer might fit the public records exception.
FRE 803: Hearsay Exceptions; Declarant Availability IMMATERIAL
The following are not excluded by the hearsay rule, regardless of whether the declarant is available as a witness.
A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately
thereafter. Boot v. State (content of statement may be evidence of spontaneity)
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.
The statement must relate to the startling experience. Courts are split about whether the statement itself can be evidence of the act. Truck
Insurance Exchange v. Nichling (court held there must be some evidence of an act independent of declaration) Excited utterances do not need to
be as contemporaneous as present sense impression.
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Evidence: Outline
FRE 803(3)
State of Mind
FRE 803(4)
Medical Diagnosis or
FRE 803(5)
Past Recollection Recorded
FRE 803(6)
Business Records
FRE 803(7)
Absence of Business Record
FRE 803(8)
FRE 803(8)(A)
Public Records
Public Records: Activities of
Public Records: Duty
Imposed By Law
Public Records: Factual
Findings from Investigations
FRE 803(8)(B)
FRE 803(8)(C)
FRE 803(10)
Absence of Public Record
FRE 803(16)
Ancient documents
FRE 803(21)
Reputation as to Character
FRE 803(22
Judgment of Previous
This is different than the state of mind non-hearsay use (not used to prove the truth of the statement but just the effect on the hearer so
nonhearsay). 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. (e.g.
“I am the King of Mars”, or “I plan to go to the restaurant tomorrow.”) Mutual Life Insurance v. Hillmon (can be used to show declarant’s intent
to carry out an act); Zippo v. Rogers Imports (surveys may be used to show state of mind of respondents)
Statements about physical condition, medical history, and symptoms made for the purpose of medical diagnosis or treatment are exceptions to
the general prohibition against hearsay. The declarant may make the statements to either treating or diagnosing medical personnel (ambulance
attendants, nurses or even family members) and statements about the cause of a condition are within the coverage of the exception as long as they
reasonably relate to the diagnosis or treatment. The trustworthiness is based on declarant’s desire for correct treatment. US v. Iron Shell
(declarant’s motive must be consistent with purpose of obtaining medical treatment and content must be reasonably relied on by physicians in
providing treatment/diagnosis. Williams v. Alexander (hospital records with details of accident not allowed because not within purpose of
Different than past recollection refreshed FRE 612 which can be used to refresh a witness’s memory on the stand. Rather, this is a memorandum
or record concerning a matter about which the witness had knowledge but now can’t remember fully and accurately, shown to be adopted by the
witness when the matter was fresh in the witness’ memory and to reflect that knowledge correctly. If admitted, the record can be read into
evidence but cannot itself be received as an exhibit. Note that the witness must be shown to have either slight or no memory of the information
recorded in the document but must have known it when the record was made. Witness must vouch for the document. If admitted, the evidence
may be read but not offered as exhibit unless by the adverse party.
The “business records” exception is widly used. The declarant who is the originating source of the information in the record must have a duty
within the organization to provide the information and the info must be of a type that the organization usually records. If someone with no duty to
report provides information that is the type of information usually kept by the organization, the document will serve as proof that the words were
communicated, but the words will be admissible for their truth only if some other exception applies to them. The purpose is to alow a
writing/record without calling everyone who made it as W’s if it was made in the regular course of business and without anticipation of litigation
as part of a duty of a person making it OR on info given by person under a duty to provide it. The court has discretion to exclude if the source or
other circumstances indicate untrustworthiness. Williams v. Alexander (hospital records with details of accident not allowed because not within
purpose of diagnosis/treatment). Johnson v. Lutz (person who reports must have a duty to report – police report not admissible because W officer
questioned at scene did not have a duty to give the information)
Allows evidence that information is lacking in a place where it would normally be recorded. It could be argued that this type of omission is not
hearsay at all, but this exception makes the point moot.
This exception applies the basic idea of business records to public entities, but treats criminal and civil cases slightly differently.
Public records and reports (or data compilations) of public offices or agencies that set forth the activities o of the office or agency are an exception
to hearsay.
Public records and reports covering matters observed pursuant to a duty imposed by law as to which matters there was a duty to report, except
matters observed by police officers and law enforcement personnel in criminal cases
Public records, reports, statements or data compilations in civil actions and in criminal cases against the Gov’t, factual findings resulting from an
investigation made pursuant to authority granted by law, unless the sources of information indicate lack of trustworthiness. Beech Aircraft v.
Rainey (as long as document contains factual findings, it is admissible, regardless of whether it contains opinions as well.); United States v. Oates
(In criminal cases, reports of public agencies that set forth factual findings from investigations cannot be let in under other hearsay exceptions or it
would violate the confrontation clause)
Absence of public records, reports, statements or data compilations regularly made and preserved by a public office or agency is an exception to
Statements in a document 20+ years old the authenticity of which is established (e.g. found in a place where it would likely have been kept is
admissible to prove the truth of its assertions).
This rule, creating an exception to hearsay for statement’s regarding the reputation of a person’s character, is related to the provisions of FRE
405(a) and FRE 608(a) detailing how character may be proved when its admission is proper. This rule protects the uses of reputation allowed by
those other rules from being barred by the hearsay doctrine. It basically just reiterates 405(a).
Evidence of a final judgment against D, entered after trial of a crime punishable by death or imprisonment > 1yr is okay to prove any fact essential
to sustain the judgement, but not applying in criminal cases when presented by Gov’t for reasons other than impeachment.
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Evidence: Outline
FRE 804: Hearsay Exceptions; Declarant UNAVAILABLE
FRE 804(a)
“Unavailable” Definition
FRE 804(b)
FRE 804(b)(1)
Hearsay Exceptions
Former Testimony
FRE 804(b)(2)
Dying Declaration
FRE 804(b)(3)
Statement Against Interest
FRE 804(b)(6)
Forfeiture by Wrongdoing
FRE 806
Attacking and Supporting
Credibility of Declarant
FRE 807
FRE 901(a)
Authentication: General
FRE 901(b)
Examples of Authentication
FRE 902
FRE 903
Subscribing Witness’
Testimony Unnecessary
A declarant is unavailable if 1) an order of the court excuses him or her from testifying (e.g. privilege), 2) declarant refuses to testify despite a
court order, 3) declarant testifies to lack of memory of the subject matter (people state that they have no memory in many instances,
sometimes truly and sometimes because they do not want to testify), 4) declarant is dead (or seriously ill), 5) the proponent of the statement is
unable to procure the declarant’s attendance by process or reasonable means. A declarant is NOT unavailable if a party intentially prevents
the declarant from being present through wrongdoing.
The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
If unavailable, testimony or deposition statements are admissible if at the time they were made the party against whom they are currently sought to
be introduced had an opportunity and similar motive to develop the testimony by questioning. In addition to the opportunity, that party’s
motivation at the time of the testimony must have been similar to its motivation in the current trial. In civil cases, a predecessor in interest is
treated as equivalent to the current party.
In murder cases (not all criminal cases) and in all civil cases, a statement made by a person who believed he or she was about to die that relates to
the cause of the expected death is admissible. This is the classic dying declarations exception. Soles v. State (judges determine whether the
condition exists before admitting – 104(a))
Because people do not usually say things that could harm them, it is likely that when a person does say such a thing, it is true. Statements that
could hurt a person in the contexts of money, property, or criminal liability are covered by this “statement against interest” exception, provided
that a reasonable person would have understood the risks involved in making the statement. The declarant must be unavailable, he must have
had personal knowledge, the statement must have been against interest when it was made. If the statement is made to exculpate an accused, it
can qualify only if it is corroborated.
If a party wrongly prevents a person from testifying, for example by being involved in bribing, intimidating or killing that person, any
statement that person ever made can be introduced against the party.
Hearsay declarants and the people whose statements are admissible as admissions may be impeached with any technique that would have been
available if they had made their statements in testimony. The provisions for allowing a declarant to deny or explain inconsistent statements do not
apply since the declarant may not be available at trial.
A statement not covered by 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, C) the general purposes of these rules and the
interests of justice will best be served by admission of the statement into evidence. However, the proponent must make known to adverse party in
advance of trial so they have a fair opportunity to prepare to meet it. This exception requires equivalent trustworthiness, strong necessity, relevant
topic, that justice will be served, and notice of intention to use to rule to the other party. A controversial example of this is the use of grand jury
testimony given under oath. US v. Dent (concurring opinion stating that you shouldn’t be able to go around other rules with 807); Easterbrook
and Prof believe 807 should only apply to circumstances not addressed by rules – no “near misses”. Ohio v. Roberts.
When a party seeks to introduce a document or any object or thing, the party must also provide a basis for a finding that the document or object
really is what the proponent claims it is. This requirement also applies to testimony about conversations. It is important to remember that
authentication is only one requirement that must be satisfied for admission of an item of evidence. For example, an authenticated document may
still need to satisfy the rules converning hearsay and original writings (best evidence rule). FRE 104(b) applies to authentication (evidence must
be sufficient to support jury finding of genuineness). Therefore, in some ways the authentication requirement is unnecessary because it is just an
application of conditional relevancy.
It is pretty easy to satisfy the authentication requirement. Here are some typical methods, but any proof that could support the required finding is
allowed: 1) testimony of witness with knowledge, 2) nonexpert opinion on handwriting, 3) comparison by trier or expert witness, 4) distinctive
characteristics and the like, 5) voice identification, 6) telephone conversations, 7) public records
Here, items discussed in the rule are considered so likely to be what they seem to be that further proof is not required. This includes 1) domestic
public documents under seal, 2) certain domestic public documents not under seal, 3) certain foreign public documents, 4) certified copies of
public records, 5) official publications, 6) newspapers and periodicals, 7) trade inscriptions, signs or tags, 8) commercial paper, etc.
The testimony of a subscribing witness is not necessary to authenticate a writing unless required by the laws of the jurisdiction whose laws govern
the validity of the writing.
Page 7
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