2016-evidence-turkheimer

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EVIDENCE OUTLINE
I.
Trial Basics
a. Adversary System – dominant theory of dispute resolution in this country
b. What is evidence?
i. YES
1. Witness testimony
2. Witness behavior and demeanor, body language, expressions,
tone, etc.  credibility evidence
3. Stipulated facts
4. Exhibits
ii. NO
1. Questions and statements by lawyers
2. Evidence that is stricken or excluded
3. Dress of defendants/restraints
4. Information jury finds outside the courtroom
5. Bench conferences
c. Roles of Trial Participants
i. Witness = people with knowledge of out-of-court events called to
share that knowledge under oath in court
ii. Jury = perceives information in the courtroom and evaluates and
make inferences about that information to find facts closest to the
truth
1. Cannot bring any outside knowledge
2. Determines weight of evidence
iii. Advocates = provide information to the jury through witnesses,
documents and other exhibits
1. Must investigate, interview, prepare, etc.
iv. Judge = controls trial process pursuant to rules of evidence, fairness
between parties, social and moral values, and efficiency
1. Has power to make all trial participants conform to roles in
courtroom behavior
2. Determines whether evidence is admissible
3. Can call and question witnesses (even if not called by the
court)
4. Also are fact finders in bench trials
d. Structure of the trial
i. Pretrial Motions
1. Motions in limine – motions made by parties to get rulings on
anticipated evidentiary issues (issues that are litigated before
trial)
a. Argued outside presence of jury
b. Tactical considerations drive decisions to use MIL
ii. Jury Selection – process of selecting jurors that are competent and
disinterested in the case; parties can object to certain jurors
iii.
iv.
v.
vi.
1. Anywhere from 6-12 jurors can be required depending on type
of case and jurisdiction
2. Federal court = 6 for civil, 12 for criminal
3. Voir Dire = questioning process to select jury that can be
conducted by counsel, judge or written questionnaire (or
combination)  goal is to elicit a rational verdict
4. Venire = group from which jury is selected
Preliminary instructions – instructions from the judge about
decorum, guidelines about evidence and credibility of witnesses, or
substantive law
1. Jury learns about what is and isn’t evidence, what the law is,
what their role is
Opening Statements – narrative about the what the evidence will
show to provide overview of the case to make it easy for the jurors to
understand (allows lawyers to make story coherent)
1. NOT evidence or argument
2. Argument includes pointing out weaknesses in opponents case,
discussing credibility, conclusions, etc.  can be objected to
during opening
a. BUT line between argument and fair opening is
arbitrary & discretionary – DT
3. Can reserve opening to maintain flexibility for defense, or to
wait to see if you even want to put a case on – DT
4. Needs a theme
Presentation of Evidence & Burden of Production
1. Order of Parties’ Presentation
a. Plaintiff/Prosecution case-in-chief
b. Defense case-in-chief
c. Plaintiff/Prosecution rebuttal case
i. Scope is limited to:
1. Matters raised in defendant’s affirmative
defenses
2. Attacks during defense case on plaintiff
case-in-chief
2. Burden of Production = must produce enough evidence such
that reasonable fact finder could find for plaintiff on each
element of charge
a. Criminal = beyond a reasonable doubt
b. Civil = preponderance of the evidence (more likely than
not)
c. Failure to meet burden of production can lead to JMOL
either before trial, after plaintiff case-in-chief, after
close of evidence or after verdict
i. In criminal, only defense can move for JMOL
Post-evidence Matters
vii.
viii.
ix.
x.
1. Court can take up legal matters with lawyers outside presence
of jury
2. Defendant can move for directed verdict  “no reasonable
jury” could find for plaintiff because evidence fails as a matter
of law
3. Plaintiff can move for JMOL  no sufficient evidence to
dispute claims
4. Jury instructions are argued
Closing Arguments = argue the facts, analyze evidence, argue
conclusions that should be drawn
1. Coherent story of events that prove your case
2. Can only present evidence that came in during trial
Jury Instructions & Burden of Persuasion
1. Judge gives instructions
2. Burden of persuasion explained to jury  degree of certainty
the jury must have in order to find on a certain issue
a. Beyond a reasonable doubt v. preponderance of the
evidence
Jury Deliberation & Verdict
1. Jurors take all documents and exhibits with them into
deliberation room and can request testimony to be read back
by court reporter
a. Federal cases
i. Criminal = unanimous verdict required
ii. Civil = unanimous required unless agreed upon
by parties
b. Other jurisdictions vary -- many jurisdictions allow nonunanimous verdicts in civil and some criminal cases
2. Some cases are bifurcated or trifurcated  separate trial for
damages or punishment
a. Guilt/liability phase
b. Penalty phase
Post-trial Motions
1. Verdict = jury’s ultimate decision
2. Judgment = judicial act that concludes a case
3. Losing party can bring post-trial motions (appeal to same court
rather than appellate court)
a. Motion for new trial (party fails to meet burden of
persuasion)
i. Erroneous jury instructions
ii. Inadequacy of damages
iii. Irregularities in trial/deliberation
iv. Erroneous admission or exclusion of
evidence
v. Verdict is “against weight of evidence”
b. Motion for judgment notwithstanding the verdict
(JNOV)
i. Can only be made if party previously moved for
directed verdict
ii. Party has failed to meet burden of production
e. General rules:
i. 104: Preliminary questions
1. In General. The court must decide any preliminary question
about whether a witness is qualified, a privilege exists, or
evidence is admissible. In so deciding, the court is not bound
by evidence rules, except those on privilege.
a. Judge can consider evidence that wouldn’t be
admissible under FRE, but not privileged evidence
b. Judge decides to admit or exclude items of evidence 
does not tell jury about decision on preliminary
question
i. Opponent can still continue to try to reduce
item’s probative value after admission
2. Relevance That Depends on a Fact. When the relevance of
evidence depends on whether a fact exists, proof must be
introduced sufficient to support a finding that the fact does
exist. The court may admit the proposed evidence on the
condition that the proof be introduced later.
a. 104(b): Conditional admissibility  if a factual
condition is necessary to establish the relevance of an
offered item of evidence and is in serious dispute, the
court can admit it conditionally upon later proof of
necessary fact
b. Higher standard than 401 “any tendency” standard
3. Conducting a Hearing So That the Jury Cannot Hear It. The
court must conduct any hearing on a preliminary question so
that the jury cannot hear it if:
a. the hearing involves the admissibility of a confession;
b. a defendant in a criminal case is a witness and so
requests; or
c. justice so requires.
4. Cross-Examining a Defendant in a Criminal Case. By
testifying on a preliminary question, a defendant in a criminal
case does not become subject to cross-examination on other
issues in the case.
5. Evidence Relevant to Weight and Credibility. This rule does
not limit a party’s right to introduce before the jury evidence
that is relevant to the weight or credibility of other evidence.
II.
Witness Examination
a. FRE 611
i. 611(a): breath of court’s power
1. Court controls mode and order of examining witnesses and
presentation of evidence
a. Effective & efficient procedures
b. Protect witnesses from embarrassment and harassment
ii. 611(b): Scope of cross is within direct and credibility issues
(impeachment)
1. Court can choose to allow additional issues
2. Can go outside scope to rehabilitate a witness that was
impeached on direct (hostile)
iii. 611(c): Leading questions can’t be used on direct
1. Only on cross & for hostile witnesses, calling adverse party, or
witness identified with adverse party
b. Direct Examination
i. Questioning witnesses during your case of chief (prepare them
before)
ii. Most evidence comes from direct  meet burden of production
iii. Open-ended questions allowing witness to explain narrative
iv. GOAL: let witness provide narrative and build story
v. Adverse/hostile witness (611(c))
1. Court can declare witness hostile
2. Can use leading questions
c. Cross Examination
i. Lawyer provides most of the information  limit what witness says
ii. Narrow/leading questions
iii. GOAL: argue case, develop theme, control damage, fill gaps in
evidence, get admissions
d. Redirect & recross
i. Redirect is limited to scope of cross
ii. Recross is limited to scope of redirect
III.
Objections
a. Basics
i. Interrupt trial to oppose introduction of evidence
ii. PURPOSE
1. Increase chances by excluding harmful evidence
2. Preserve argument for appeal
iii. Objections are argued at bench, outside presence of jury
iv. Can make offer of proof to summarize what evidence will show
v. Timing: must be timely objection
1. Failure to object or untimely waives issue on appeal
2. Can also ask for answer to be stricken on objections to form of
question
vi. Stating objections:
1. General = expression of objection w/o grounds
2. Specific = w/ grounds
3. Must use correct grounds
4. No speaking objections
b. TYPES
i. Form of question
1. Argumentative – question asks witness to agree with
questionable inference
2. Asked & answered – repetitive/cumulative
3. Assumes facts not in evidence – question phrased so witness
would have to adopt asserted fact that is in dispute and hasn’t
been proven
4. Calls for narrative – asks for lengthy answer (too general)
5. Compound – asks about more than one separate fact
6. Leading – suggests answer
7. Mischaracterization of evidence/misstating evidence –
question distorts evidence of misquotes witness testimony
8. Vague/unintelligible/ambiguous/confusing – unclear
question to answer
ii. Admissibility of answer
1. Hearsay – calls for out of court statement being offered for
truth of the matter asserted
2. Irrelevant – no probative value relating to any fact of
consequence in the case
3. Lack of foundation – insufficient factual basis to show witness
has knowledge to answer the question
4. Lack of authenticity – insufficient factual basis to show
exhibit is what the proponent claims it is
5. Speculation – calls for witness to guess/speculate beyond
their knowledge
6. Calls for opinion/conclusion – would violate lay witness
rules about opinions and inferences outside witness’s
perception of event
7. Inadmissible character evidence – violates FRE 404
8. More prejudicial/misleading than probative – probative
value is substantially outweighed by one of the 403 dangers
9. Cumulative – repetition of earlier testimony (similar to asked
& answered)
10. Nonresponsive – witness’s answer doesn’t meet substance of
question
11. Beyond the scope of the question – answer is outside scope
of question  basis for motion to strike
12. Beyond the scope of direct/cross/redirect/recross/etc. –
outside scope allowed on examination
13. Not best evidence – answer would violate best evidence rule
a. Best evidence rule = use of original writing, recording,
photograph to prove its content is required
c. FRE 103: Rulings on admissibility of evidence
i. Party can claim error in ruling in admission or exclusion of evidence
ONLY IF
1. error affects substantial right of the party AND
2. timely & correct objection is on record
a. If appellate court reaches opposite decision on
inclusion/exclusion of evidence, case can be reversed
b. Abuse of discretion standard: appellate court has to
find that trial court’s decision wasn’t just wrong, but
unreasonable
ii. STANDARD: Was the error harmless?
iii. EXCEPTION: Plain error rule = error was so serious and obvious
that it is grounds for reversal even if not objected to
IV.
Relevance
a. Only relevant evidence is admissible at trial
i. Relevance is relational & based on context of case at trial
ii. Relevancy is assessed with objection is made//when evidence is
proffered, while sufficiency is assessed at conclusion of trial
iii. Relevance is tested based on whether the evidence could influence a
reasonable juror or reasonable jury not whether it influences the
specific judge deciding admissibility
iv. Reasonable background information about witnesses is always
admissible to help jury gauge credibility and reliability of testimony
b. FRE 401: Test for relevance
i. Evidence is relevant IF:
1. Has a tendency to make any fact more or less probable
(probative) AND
a. “Any tendency” = low bar for relevance
b. Credibility is not a factor in determining probative value
2. Offered to prove a fact of consequence (materiality)
a. Evidentiary fact  leads to inference of fact of
consequence  leads to inference of essential element
(substantive law) = chains of inference/reasoning
i. Inferential reasoning is based on generalized
knowledge and experience to make rational
connections
ii. Generalizations must be REASONABLE and
based on common knowledge & experience
iii. Limits on generalizations:
1. Cannot be known to be false
2. Cannot be pure speculation
c. FRE 402: General admissibility of relevant evidence
i. Relevant evidence is admissible unless it is against:
1. Constitution
2. Federal statute
3. Rules of evidence
4. Other rules prescribed by supreme court
d. Two types of relevant evidence:
i. Direct evidence – establishes essential element without any
additional inferences
1. Never irrelevant
ii. Circumstantial evidence – evidence that requires additional
inferences to make connection between fact and essential element
1. Can be stronger than direct evidence
2. Irrelevant if there is no probative value
e. FRE 403: Excluding relevant evidence for prejudice, confusion, waste of time,
or other reasons
i. Relevant evidence can be excluded if its probative value is
SUBSTANTIALLY outweighed by a “403 danger”:
1. Unfair prejudice: Evidence might suggest improper basis for
jury to decide case
a. Risks:
i. Can trigger jury response unrelated to fact of
consequence (usually emotional reaction) 
turn jury against a party
ii. Could be used by jury in a way that violates FRE
b. Examples:
i. Gruesome pictures
ii. Pictures of victims or accidents
iii. Evidence of other crimes
2. Confusing the issues: Focuses jury’s attention too much on a
factual issue that isn’t central to the case
a. Collateral issues – connection to essential elements is
trivial and distant
b. Risks:
i. Jury will spend too much time on a trivial issue
and not enough on the central issue
ii. Confused jury
3. Misleading the jury: Evidence might lead to mistaken
inference
a. Risks:
i. Jury will draw the wrong inference from
evidence
b. Examples: complex statistics, probabilistic evidence,
DNA match cases, etc.
4. Undue delay
a. Risk:
i. Waste of time and money
5. Waste of time
a. Risk:
i. Waste of time and money
6. Cumulative evidence
a. Risk:
i. Trial time wasted on repetitive testimony
ii. Losing attention of jury
ii. 403 balancing test: balance probative value and the need for the
evidence against harm likely to result from its admission
1. Factors in determining probative value & need:
a. Availability of other forms of proof
b. Strength of tendency to make a fact in the case more or
less probable
c. Persuasive effect of evidence on jury
d. Strength of underlying inferences
e. Certainty of starting point of evidentiary chain
2. Factors in measuring harm:
a. Nature of the danger
b. Likelihood jury will be negatively affected
c. Probable degree of harmful effect
d. Number of dangers the evidence raises
iii. Substantially outweigh = burden of proof for admission under 403
iv. Can also admit, but with a limiting instruction
1. Unclear whether juries follow these instructions
v. Appellate review under 403:
1. Abuse of discretion standard  deferential standard that
appellate courts will accept trial court decisions that the
appellate judge would not have made themselves
a. Reversal is only justified when the trial court abuses its
discretion and there is a “clear error of judgment”
b. Must be against logic and facts of the case
2. Reasons for standard:
a. Complexity & uncertainty of balancing test
b. Competence  trial judge has more experience than
appellate in these judgments, and is closer to the
evidence
c. Tolerance for inconsistent outcomes  defer to trial
court b/c appellate court can’t actually know whether
the outcomes are inconsistent
vi. Bad man theory: you associate with someone who is a bad person so
you might be a bad person
vii. 403 forbids forbidden chain of inferences, which includes action and
conformity therewith
f. FRE 407: Subsequent Remedial Measures
i. When measures are taken that would make earlier injury or harm less
likely to occur, evidence of subsequent measures is NOT admissible to
prove:
1. Negligence
2. Culpable conduct
3. Defect in product or design OR
4. Need for warning or instruction
ii. BUT court can admit this evidence for other purposes:
1. Impeachment
2. Proof of ownership or control (IF DISPUTED)
3. Feasibility of precautionary measures
iii. Examples of subsequent remedial measures:
1. Change in policy
2. Memo about safety regulations
3. Altering design of product
4. Repairing condition of property
5. Firing or disciplining someone whose negligence was
responsible for accident
6. Recall notice
7. Change of rules or regulations
8. Posting warning signs
iv. No intent or motive requirement  don’t have to show subsequent
measures were don’t to prevent future injury or to make conditions
safer
v. Remedial action must occur after earlier injury or harm  rule only
applies to changes after the occurrence that caused damages
vi. Courts sometimes admit evidence of remedial measures taken by
someone other than the party against who the evidence is offered
vii. Rationales for 407:
1. Low probative value for prohibited purposes
a. Could just be the person being cautious
b. Changes could be for reasons unrelated to safety
2. 403 factors
a. Could mislead the jury
b. Hindsight bias  if you changed the product you must
have known its danger
3. Don’t want to discourage individuals from engaging in
desirable conduct and making things safer
4. Don’t want to punish desirable conduct or disadvantage people
for doing good things
g. FRE 408: Compromise offers and negotiations
i. FRE 408(a): Evidence of the following is NOT admissible to prove or
disprove validity or amount of disputed claim, or to impeach:
1. Furnishing, promising offering, accepting, promising to accept,
or offering to accept a valuable consideration in compromising
or attempting to compromise the claim AND
2. Conduct or statement made during compromise negotiations
about the claim
a. EXCEPTION:
i. Criminal case  when negotiations relate to
claim by public office in exercise of regulatory,
investigative or enforcement authority
1. Basically if there were settlement
discussions in a previous civil suit
brought by the government, collateral
statements or conduct by adverse party
can be introduced by the government in a
subsequent criminal case
a. Individuals who speak in front of
governmental agents should
anticipate that collateral
statements will be admitted
against them in subsequent action
2. ONLY for proof of statements or conduct,
not prior settlement offers
ii. FRE 408(b): EXCEPTIONS:
1. Admissible for other purposes such as:
a. Proving bias or prejudice of a witness
b. Negating contention of undue delay
c. Proving effort to obstruct criminal investigation or
prosecution
2. Third person exception:
a. Admissible when referring to settlement between a
party and third person
iii. What is inadmissible?
1. Conduct in compromise negotiations
2. Statements from negotiations
3. Collateral statements
a. Admission of fact during course of negotiations, even if
separable from settlement offer
iv. Compromises are only inadmissible if there was an actual dispute
between the parties about the validity of the claim or amount at issue
v. There must be a true or attempted compromise
vi. Cannot introduce a party’s own effort to compromise either – rule still
applies
h. FRE 409: Offers to pay medical and similar expenses
i. Evidence of furnishing, promising to pay, or offering to pay medical,
hospital or similar expenses resulting from an injury is not admissible
to prove liability for the injury
1. Statements made in conjunction with the payments, including
statements of fault, are NOT excluded
ii. Evidence of expenses is admissible for purposes other than to prove
liability
i. FRE 410: Pleas, plea discussions, related statements
i. 410(a): Evidence of the following is NOT admissible against a
defendant who made the plea or participated in the plea discussion:
1. Guilty plea that was later withdrawn
a. Guilty pleas can be withdrawn only with permission of
the court
i. There must be a cause or good reason to permit
withdrawal
ii. Ex. If procured by force, violation of rights, etc.
2. Nolo contendere plea
a. Not permitted in every jurisdiction
3. Statement made during proceeding on either of those please
under FRCP 11 or comparable state procedure OR
a. FRCP governs plea bargaining
4. Statement during plea discussions with an attorney for the
prosecuting authority if the discussions didn’t result in a guilty
plea, or resulted in later-withdrawn guilty plea
ii. 410(b): EXCEPTIONS:
1. Can admit statements described in 410(a)(3) and (4) in:
a. Proceedings in which another statement made during
the same plea or plea discussions has been introduced,
if in fairness the statements ought to be considered
together OR
b. In criminal proceeding for perjury or false statement, if
defendant made the statement under oath, on the
record, with counsel present
j. FRE 411: Liability insurance
i. Evidence that a person was or was not insured against liability is not
admissible to prove:
1. Negligence
2. Wrongful conduct
ii. This evidence can be admitted for another purpose, such as:
1. Proving witness’s bias
2. Prejudice
3. Proving agency, ownership or control
k. Cases for relevance:
i. Knapp v. State: Self defense argument in murder of police officer
1. Common law threshold for relevance is v low
ii. United States v. Stever: Weed growing operation & drug trafficking 
defendant says Mexican traffickers are responsible for the weed not
him
1. Threshold is also v low under FRE 401
iii. United States v. Hitt: Picture of defendant with a ton of weapons that
didn’t belong to him in a case where he had a machine gun in violation
of statute
1. Photo is unfairly prejudicial and marginally probative  would
mislead the jury and can’t be admitted
iv. Old Chief v. United States: Defendant in assault w/ dangerous
weapon case had prior assault charge and didn’t want the name and
nature of the crime to be admitted
1. Trial court abused discretion by allowing the details of the
previous conviction to be admitted b/c it was unfairly
prejudicial and admission was available
2. 403 balancing must include assessment of evidentiary
alternatives
V.
Character Evidence
a. Types of character evidence:
i. Character = tendency of a person to act a certain way; evidence to
show that the person committed a particular act because of a certain
character trait (generally inadmissible)
ii. Propensity = tendency of a person or thing to behave in a certain way
iii. Past specific acts = other crimes or wrong acts, instances of a
person’s past conduct that is not a subject of the current case
iv. Habit = conduct that is more consistent, routine, and repetitive
(generally admissible)
b. FRE 404: Character Evidence
i. FRE 404(a)(1): Basic rule: Character evidence or character traits are
not admissible to show that on a particular occasion the person acted
in accordance with that character or trait
ii. 404(a)(2): EXCEPTIONS (Only apply to defendant or victim in a
criminal case):
1. Defendant can offer evidence of pertinent trait, and if admitted,
prosecution can offer evidence to rebut it
a. Criminal defendants have right to introduce evidence of
their own “pertinent” character traits
b. “Opening the door” to character  allows pros to
rebut the relevant character or trait
i. Must be about SAME character introduced by
defendant
c. Pertinent = character or trait being introduced must be
relevant to the charge/case at issue
2. Defendant can offer evidence of victim’s pertinent trait, and if
admitted, prosecution can rebut it or offer evidence of same
trait in defendant
a. Criminal defendants can introduce evidence of
character of victim
b. If defendants introduce victim’s bad character  “open
the door” to pros introducing defendant’s bad
character too
i. Must be about SAME bad character addressed by
defendant
3. Homicide cases  prosecution can offer evidence of victim’s
trait of peacefulness to rebut evidence that victim was first
aggressor
4. Rationale for these exceptions:
a. Unfair prejudice is only most likely to be from bad
character, which won’t come in unless defendant
chooses to open the door
b. Criminal defendant should not have to face
consequences of conviction without every opportunity
to establish reasonable doubt
c. Risk of unfair prejudice from evidence of victim’s good
character is remote
i. Defendant also has right to keep the door closed
(except homicide cases)
iii. 404(a)(3): Evidence of a witness’s character can be admitted under
607, 608 and 609
1. Relevancy of a witness’s testimony depends on their 608
2.  can introduce evidence that undermines or supports their
truthfulness
3. Applies to both criminal and civil cases
iv. FRE 404(b): Crimes & wrong acts
1. FRE 404(b)(1): CANNOT be admitted to show character and
conformity with that character on a specific occasion
2. FRE 404(b)(2): ADMISSIBLE to show fact of consequence, that
is not a character trait, including: (this list is not exhaustive)
a. Motive
i. Essential aspects of story of case that are
necessary for the story to be fully told can be
admitted
b. Opportunity
c. Intent
i. Intent or knowledge can make an accident or
innocent act a crime or tort
ii. Intent varies based on circumstances – having
intent and one point doesn’t mean you always
have it
d. Preparation
e. Plan
f. Knowledge
i. Mental state can be element of a criminal or civil
charge and state of mind is sometimes at issue 
can use past specific acts to show
knowledge/intent/accident/absence of mistake
ii. Knowledge is different from intent because once
knowledge is acquired it is retained indefinitely
1. Something that someone knew in the past
proves they knew it on a subsequent
occasion without a character inference
g. Identity
i. Modus Operandi theory: When other conduct
is so distinctive and nearly identical in its
attributes or methods to litigated conduct so as
to suggest that the same person did both acts, it
can be admitted to show identity
1. High degree of distinctiveness and
similarity required to establish modus
operandi
2. Applies only in limited circumstances
3. Rationale is that it is more probative than
general character evidence
h. Absence of mistake
i. Lack of accident
j. To admit evidence under this rule (404(b)(2)),
requirements must be met:
i. Show some non-character purpose that the
specific act evidence is relevant for
ii. Introduce evidence that the person actually
committed the act
iii. Standard of proof: governed by 104(b)  must
introduce evidence sufficient to support finding
by preponderance of the evidence
1. Relatively low standard
iv. Respond to 403 objection to evidence
v. If proponent of evidence is prosecution 
respond to defendant’s demand for notice (to
reduce surprise)
vi. Must explain details of how the prior
evidence relates to one of these requirement
k. Res Gestae: evidence that involves the same
transaction as conduct at issue or helps complete the
story  theory that gives argument to admit this
evidence more weight
l. Anticoincidence theory of relevance/doctrine of
chances: if specific acts are sufficiently numerous and
similar to crime charged, coincidence or randomness is
unlikely to explain the occurrence
i. More likely that there is some unifying causal
explanation for occurrence
ii. Used to prove absence of mistake or accident
iii. Allows past specific acts to prove intent when
there might not be evidence to support a finding
that any single past specific act was itself
intentional
iv. Evidence has to support inferences that at least
some of the past accidents were not accidents,
and that number of non-accidents refutes
defense of accident on occasion in question
3. Prosecutor must provide reasonable notice of nature of
evidence they are going to offer before trial (if requested by
defendant)
4. Even if there is a valid non-character purpose for specific acts
evidence, it is not automatically admissible  still subject to
other rules
a. 403 objections are common here – courts must balance
403 factors:
i. How probative the non-character purpose of the
issue is
ii. How probative specific act is to prove the noncharacter purpose
iii. How probative the evidence is to establish that
the act occurred
iv. How much risk of unfair prejudice would result
from introduction of evidence
v. How effective a limiting instruction is likely to be
in reducing risk of unfair prejudice
c. FRE 608: Witness’s Character evidence
i. Reputation or opinion evidence  witness’s credibility can be
attacked or supported by testimony about their reputation for
truthfulness or untruthfulness
1. Can also use opinion testimony about truthfulness or
untruthfulness of a witness
2. Admissible only after witness’s character for truthfulness has
been attacked
ii. Specific instances of conduct
1. Extrinsic evidence of specific instances of a witness’s conduct
to attack or support character for truthfulness is not
admissible
a. EXCEPTION: criminal conviction (FRE 609)
2. On cross, attorney can ask about a specific instance of conduct
if it is probative to character for truthfulness of the witness, or
another witness the witness has testified about
d. FRE 405: Methods of proving character
i. 405(a): Reputation or opinion
1. When evidence of character is admissible, can prove by:
a. Reputation testimony
i. What people say about the person in the
community
ii. Hearsay evidence, admissible under 803(21)
b. Opinion testimony
i. Generalizations from specific facts
ii. Generalization based on witness’s perception of
someone’s behavior
iii. Witnesses called to testify about character
usually have strong personal feelings about the
person
iv. Admissible evidence is confined to “nature and
extent of observation and acquaintance upon
which opinion is based”
c. Cross:
i. On cross of character witnesses  can ask about
specific instances of conduct
1. Court will allow questions that might be
extremely prejudicial under this rule
2. Can also ask about prior arrests or
convictions
a. Tests witness’s knowledge of
defendant’s character or
background
b. Can be v prejudicial
ii. Limitations:
1. Questions must be relevant to character
trait that the witness testified about
2. Must be about acts the witness is likely to
know or have heard
3. Cross-examiner must have reasonable
basis for believing act occurred
a. If not, must be very general
inquiry without any implications
i. Not leading questions
d. Probative value of reputation and opinion testimony
depends on:
i. How long person has known the person
ii. How well they know them
iii. Context in which they know them
ii. 405(b): Specific acts or instances of conduct
1. When character or trait is essential element of charge, claim, or
defense  can be proved by relevant specific instances of
person’s conduct
a. Substantive law sometimes makes character essential
element
i. Ex. Falsity in defamation
1. Reputation is ALWAYS relevant in
defamation cases
ii. Character for child custody
b. All three forms of character (reputation, opinion,
specific instances) are admissible when character is
essential element
2. Only limitation is FRE 403
a. Consider risk of emotional response from jury
b. Time and effort to litigate details of character
e. FRE 406: Habit & Routine Practice
i. Evidence of habit or organization’s routine practice cab be admitted to
show that on a particular occasion the person/organization acted in
accordance
1. Admissible regardless of whether it is corroborated or there is
an eyewitness
ii. No restrictions on habit evidence
iii. Not subject to 404 & 405 even though its similar to character evidence
iv. Habit = tendencies or propensities of people to behave in certain
predictable ways; much more specific than character
1. Relevance of habit evidence depends on propensity
inferences  that people are more likely to act in a certain
way on a certain occasion if it was in their propensity/habit to
act that way
v. Methods of proving habit & routine
1. Can describe many acts specifically
2. Can use generalization of habit or practice
vi. Character v. habit
1. Use factors to distinguish:
a. Regularity
b. Specificity
c. Moral neutrality
2. Alcoholic habits: admissibility depends on court
vii. Organizations:
1. FRE 406 applies to organizations (not 404)
2. Possible objections:
a. No evidence to establish that it was a custom or practice
b. Witness offering organizational practice evidence
doesn’t have firsthand knowledge of practice
c. FRE 403: Past bad acts of organization have low
probative value for proving routine practice but are
prejudicial
3. Organizations are made up of human beings, and there is a
blurry line something between the employee/actors routine
practice and the organization’s
a. Person’s could be considered character and be
inadmissible
viii. Rationale for allowing habit/routine practice evidence:
1. Regularized, specific nature of the evidence makes it more
probative of action of a specific occasion than character
2. People act in accordance with their habits
3. No potential for prejudice that comes along with character
f. Similar Happenings
i. Category outside of 404, 405 and 406  No specific rule
ii. Conduct by people or occurrences involving inanimate objects offered
for a purpose other than to prove character, habit, or routine
iii. Presence or absence of external factors that make past happenings
more or less probative to case
1. Weigh probative value against 403 dangers
a. Waste of time
i. Time to introduce AND deal with evidence
b. Confusion of issues
c. Unfair prejudice
iv. Three categories:
1. Organizational propensity to prove conduct on a specific
occasion
a. Show that organization has propensity toward certain
acts or occurrences to show conduct on a specific
occasion
b. Based on some factor attributable to the organization
rather than chance
i. Could be formal or informal policies
1. Evidence to show institutional policy or
practice is one of the most important uses
of similar happenings evidence
2. Organizational liability based on policy, practice or notice
a. Past similar conduct or occurrences within an
organization to show element of liability such as notice,
pattern or practice liability, or to establish a standard of
care
i. Ex. Prior safety violations  show company
should have known about potentially hazardous
conditions
ii. Vehicle safety inspections  standard of care
that was breached when there was no inspection
3. Characteristics of objects
a. Past similar behavior or operation of or occurrences
involving an inanimate object
i. Ex. Instruments that have caused similar injuries
in the past
ii. Evidence that similar objects have had other
characteristics similar to an object at issue
v. Evidence of similar NON-happenings:
1. Can be offered to prove:
a. Lack of notice
b. Event didn’t happen
c. Event didn’t happen in the way stated
d. Event didn’t happen for the reason stated
2. Court will likely require significant number of non-happenings
g. Sexual offenses
i. FRE 412: Sex offense cases & the victim’s sexual behavior or
predisposition
1. 412(a): NOT admissible in proceedings involving alleged
sexual misconduct:
a. Evidence to prove victim engaged in other sexual
behavior
i. Sexual behavior = all activities that involve
actual physical conduct or imply sexual
intercourse or conduct
1. Includes use of contraceptives, birth of
illegitimate child, disease
2. Includes fantasies or dreams
b. Evidence to prove victim’s sexual predisposition
i. Sexual predisposition = evidence not directly
referring to sexual activities or thoughts but may
have sexual connotation for fact finder
1. Ex. Relating to victim’s dress, speech,
lifestyle
2. Includes all evidence offered to show
conduct on a particular occasion
2. 412(b): EXCEPTIONS:
a. Criminal cases:
i. Evidence of specific instances of victim’s sexual
behavior IF offered to prove that someone other
than defendant was source of semen, injury or
other physical evidence
ii. Evidence of specific instances of victim’s sexual
behavior with respect to person accused of
sexual misconduct, IF offered by defendant to
prove consent, or if offered by prosecutor
iii. Evidence that would violate defendant’s
constitutional rights if it is excluded
1. Due process
2. 6th amendment confrontation clause
b. Civil cases:
i. Evidence to prove victim’s sexual behavior or
predisposition if probative value substantially
outweighs danger of harm to any victim or any
unfair prejudice
ii. Evidence of victim’s reputation ONLY IF victim
has put it in controversy
c. Test for admissibility:
i. REVERSE 403 TEST  favors exclusion rather
than admissibility
1. Probative value must substantially
outweigh countervailing factors
ii. Consider prejudice against party and harm to
victim
3. 412(c): Procedure to determine admissibility:
a. Motion: To offer evidence under 412, party must:
i. File motion describing evidence and purpose for
which it is offered
ii. At least 14 days before trial
1. Later if court sets different time for “good
cause”
iii. Serve motion on all parties AND
iv. Notify victim or victim’s
guardian/representative
b. Hearing: Before admitting this evidence, court must
conduct camera hearing to allow victim and parties
right to attend and be heard
i. Record must remain sealed
4. 412(d): Victim = includes alleged victim
5. Hostile work environment cases:
a. Can use 412 to bring evidence of behavior at work in
sex discrimination suits based on hostile work
environment
6. Rationale for excluding evidence of prior sexual behavior and
predisposition:
a. Don’t want to make victim’s character the focal point of
the litigation
i. Might discourage victims from cooperating with
prosecutor or from reporting assault
b. Only marginally relevant
c. Protection of rape victims from humiliation
d. Rape shield rule  to protect rape victims
i. When criminal defendant wants to testify about
rape victim’s prior sexual conduct, there might
be conflict between jurisdiction’s rape shield
rule and constitutional right to testify (due
process/confrontation clause)
ii. FRE 413: Similar crime in sexual assault cases
1. 413(a): When defendant is accused of sexual assault, evidence
of ANY OTHER SEXUAL ASSAULT is admissible
2. 413(b): Prosecutor must tell defendant in advance
a. At least 15 days before trial OR
b. Later time if court allows “for good cause”
3. 413(c): This rule doesn’t limit admission of evidence under
other rules
4. 413(d): Sexual assault = crime under federal or state law
involving:
a. Conduct prohibited by 18 U.S.C. 109A
b. Contact, without consent, between any part of
defendant’s body or an object, and another person’s
genitals or anus
c. Contact, without consent, between defendant’s genitals
or anus and any part of another person’s body
i. Consent = legal or actual consent
d. Deriving sexual pleasure or gratification from inflicting
death, bodily injury, or physical pain on another person
e. Attempt or conspiracy to engage in conduct described
above
iii. FRE 414: Similar crimes in child molestation cases
1. FRE 414(a): When defendant is accused of child molestation,
evidence of ANY OTHER CHILD MOLESTATION is admissible
2. FRE 414(b): Prosecutor must tell defendant in advance
a. At least 15 days before trial OR
b. Later time if court allows for “good cause”
3. FRE 414(c): Does not limit admission under other rules
4. FRE 414(d): Definitions
a. Child = person under the age of 14
b. Child molestation = crime under federal or state law
involving:
i. Conduct prohibited by 18 U.S.C. 109A and
committed with a child
ii. Conduct prohibited by 18 U.S.C. 110
iii. Contact between any part of defendant’s body or
an object and child’s genitals or anus
iv. Contact between defendant’s genitals or anus
and any part of a child’s body
v. Deriving sexual pleasure or gratification from
inflicting death, bodily injury, or physical pain on
a child
vi. Attempt or conspiracy to engage in conduct
described above
iv. FRE 415: Similar acts in civil cases concerning sexual assault or child
molestation
1. 413 and 414 apply to civil cases as well
v. These rules liberalize admissibility of character evidence in sexual
assault and child molestation cases
1. Remove two primary objections:
a. Prosecution can open the door
b. Prosecution can use past specific acts regardless of
404(b)
vi. Rationale:
1. Sexual misconduct evidence has high probative value to show
action on a particular occasion
2. Probative value of this evidence is not outweighed by
prejudicial effect
h. Rationales for generally excluding character evidence:
i. Probative value of character evidence to show action in conformity
therewith is rarely great
ii. Inference from evidence offered to what the person’s character
actually is might be weak
iii. Character evidence that is disputed can divert from the main issues of
the trial
iv. Character evidence can be unfairly prejudicial, especially when it is
about a party of the lawsuit  jury will be prejudiced against the
person
v. Past specific acts can lead to negative character inferences
VI.
Impeachment
a. Impeachment = process of trying to raise doubts about inferences
i. Attempt to show that a witness may have narrated the events
incorrectly, lied, misperceived the events, or forgotten some or all of
what happened
b. Can impeach by:
i. Examining on cross
ii. Introducing extrinsic evidence
1. Other than what is developed through direct or cross of the
witness
2. Ex. Exhibits or testimony of other witnesses
c. Testimonial inferences
i. Strength of a witness’s testimony depends on testimonial abilities
1. Witness must be able to observe events, remember them and
relate them accurately
2. Jury has to make inferences about the abilities to credit what
the witness says
ii. It is the job of the judge to assess the accuracy of testimony
iii. Opposing counsel also has job to raise doubts in testimony
d. FRE 602: Need for personal knowledge
i. A witness cannot testify to a matter unless evidence is introduced to
show that the witness has personal knowledge of the matter
ii. Evidence to prove personal knowledge can consist of witness’s own
testimony
e. FRE 603: Oath or affirmation to testify truthfully
i. Before testifying, a witness must give an oath or affirmation to testify
truthfully. This must be in a form designed to impress that duty on the
witness’s conscience.
f. Types of impeachment evidence:
i. Evidence of character for untruthfulness
ii. Showing bias of witness or interest in case
iii. Attacks on narrative, perception or abilities
iv. Proof of inconsistent statements
v. Testimony from other sources to the contrary
g. Impeachment evidence vs. Substantive evidence
i. Impeachment evidence must still be relevant to litigation
ii. Difference is the theory of relevance
iii. Evidence must be analyzed for impeachment purpose only if it is not
admissible for substantive purpose
iv. When only admissible to impeach, there are three consequences:
1. Can’t rely on that evidence as substantive for burden of
production
2. Can’t rely on that evidence as substantive proof of facts
disputed
3. Opposing party can make 403 objecting and is entitled to
limiting instruction
h. FRE 608: Witness’s character for truthfulness or untruthfulness
i. 608(a): Reputation or opinion evidence
1. Credibility can be attacked or supported by testimony about
the witness’s reputation for having a character for truthfulness
or untruthfulness, or by testimony in the form of an opinion
about that character
a. Rehabilitation:
i. Evidence of truthful character is ONLY
admissible after that character trait has been
attacked  untruthfulness must come first
b. One way to impeach is prove character for
untruthfulness to suggest they are lying on the stand
ii. 608(b): Specific instances of conduct
1. Except for criminal convictions under 609, extrinsic evidence is
NOT admissible to prove specific instances of a witness’s
conduct to attack or support character for truthfulness
a. Too much time and energy would be required to litigate
the truth or falsity of facts whose only ability is to
impeach the credibility of a witness
b. Would be potential for a mini-trial with every witness
2. On cross, the court can allow them to be inquired into if they
are probative of character for truthfulness or untruthfulness
of:
a. 608(b)(1): The witness OR
i.
b. 608(b)(2): Another witness whose character the
witness being crossed has testified about
i. Must be relevant to what the witness already
testified about
c. 3 limits to admission under 608(b):
i. Must be good faith belief
1. Cross-examiner must have good faith
basis for asking the question
2. Question can still leave a bad impression
on jury if it isn’t true
a. Breach of professional ethics
ii. Must be on cross
1. Exception: Parties can impeach their own
witnesses on direct examination
iii. Can’t use any other method to introduce proof of
bad acts
3. Can ask about:
a. Witness’s own acts during examination of that witness
b. Acts of another witness whose character the witness
has testified about
c. MUST RELATE TO CHARACTER FOR TRUTHFULNESS
i. Court has never defined “truthfulness” and there
is no scope of the limitation
ii. Gray area when courts sometimes reach
different results
d. Can still have 403 concerns
i. Low probative value
ii. Risk of unfair prejudice
iii. Confusion and waste of time
iv. Courts are usually liberal in admitting inquiry
about specific acts to prove character for
impeachment purposes
4. Witness doesn’t waive privilege of self-incrimination for
testimony that relates only to character for truthfulness by
testifying on another matter
a. NOT a waiver of 5th amendment privilege with respect
to questions that are only permissible to undermine
witness’s credibility
iii. Bolstering credibility: There is no general prohibition to bolstering
credibility prior to an impeachment
FRE 609: Impeachment by evidence of a criminal conviction
i. 609(a): These rules apply to attacking a witness’s character for
truthfulness by evidence of a criminal conviction
1. For a crime that, in the convicting jurisdiction, was punishable
by death or by imprisonment of more than one year, evidence:
a. MUST be admitted, subject to 403, in a civil or criminal
case in which the witness is not a defendant AND
b. MUST be admitted in a criminal case in which the
witness is a defendant, if the probative value of the
evidence outweighs its prejudicial effect to the
defendant AND
c. 609(a)(1) Balancing tests:
i. Witness who is not a criminal defendant  403
balancing test
1. Civil defendants treated the same as other
witnesses
ii. Criminal defendants who are witnesses 
Reverse-403 balancing test
1. Probative value must outweigh prejudice
to the defendant
a. Probative value considerations:
i. Age of conviction
ii. How probative murder is to
show bad moral character
or general disposition for
law-breaking  shows
disposition for
untruthfulness
iii. Witness’s intervening
behavior
b. Prejudice considerations:
i. To what extend the jury will
consider the witness a bad
person  get biased
against them
ii. Risk that jury may use
conviction not just in its
proper propensity to prove
they may be untruthful, but
also in an improper way
2. Favors exclusion
3. Burden on prosecution to justify
admissibility
2. For any crime regardless of the punishment, evidence must be
admitted if the court can readily determine that establishing
the elements of the crime required proving—or the witness’s
admitting—a dishonest act or false statement
a. 609(a)(2) rule: dishonest act or false statement
convictions are automatically admissible
i. No balancing
ii. Category of crimes includes:
1.
2.
3.
4.
5.
6.
Perjury
False statement
Criminal fraud
Embezzlement
False pretenses
Crimes that involve element of
untruthfulness, deceit or falsification
3. NO PROHIBITION ON EXTRINSIC EVIDENCE
a. Can use records for finding of guilt:
i. Indictments
ii. Statement of admitted facts
iii. Jury instructions
iv. Etc.
b. BUT there is rarely a need for this evidence
4. Rationale:
a. Shows general character trait or disposition for
untruthfulness from which one can infer whether the
witness is telling the truth on the stand
b. DOES NOT APPLY when prior convictions are offered
for relevant purpose other can character for
truthfulness
c. Prior convictions are relevant to general credibility
ii. 609(b): Limit on using evidence after 10 years: If more than 10
years have passed since the witness’s conviction or release from
confinement (including probation or parole periods) for it (whichever
is later), evidence is only admissible if:
1. Its probative value, supported by specific facts and
circumstances, substantially outweighs its prejudicial effect
AND
2. The proponent gives an adverse party reasonable written
notice of the intent to use it so that the party has a fair
opportunity to contest its use
3. Uses reverse 403 balancing test
iii. 609(c): Effect of a pardon, annulment, or certificate of
rehabilitation: Evidence of a conviction is not admissible if:
1. The conviction was the subject of a pardon, annulment,
certificate of rehabilitation or other equivalent procedure
based on finding that the person has been rehabilitated, AND
person has not been convicted of a later crime punishable by
death or by imprisonment for more than one year OR
2. The conviction has been the subject of a pardon, annulment or
equivalent based on finding of innocence
iv. 609(d): Juvenile Adjudications: Evidence of a juvenile adjudication
is admissible under this rule ONLY IF:
1. Offered in a criminal case
2. Adjudication was of a witness other than defendant
3. Adult’s conviction for that offense would be admissible to
attack the adult’s credibility AND
4. Admitting the evidence is necessary to fairly determine guilt or
innocence
v. 609(e): Pending appeal: Convictions that satisfy this rule are
admissible even if an appeal is pending.
1. Evidence of the pending appeal is also admissible.
j. Motions in limine about impeachment:
i. Parties can file motions in limine seeking advance ruling on whether
prior convictions will be admissible against them
1. Considerations about whether to seek motions in limine for
defense counsel:
a. Should provide as much information as possible to the
trial court
b. If motion is not granted, can renew it at the close of
prosecution case AND before defendant will decide
whether to take the stand
c. Can seek conditional ruling if trial judge is hesitant to
rule
ii. Defendants want to know ahead of time whether the prior convictions
will be admissible to impeach them
iii. Effect on trial strategy:
1. Defendants whose prior convictions are admissible for
impeachment may choose not to testify
2. If defendant does testify, it is important for them to mention
their prior convictions on direct examination to avoid
prejudice
k. Impeachment & Rehabilitation with prior statements
i. Prior statement = statement made at another time and place prior to
current testimony
1. Falls within hearsay  admissible if offered for the truth of the
matter
2. If not for truth  can be admissible (this is what is addressed
here)
a. Usually will be to show inconsistency in statements OR
b. For rehabilitation (to show consistency in statements)
ii. FRE 613: Witness’s prior statement
1. 613(a): When examining a witness about their prior
statement, party doesn’t have to show or disclose its contents
to the witness, but they have to show it to the adverse party’s
attorney if they are asked for it
a. This is to prevent against insinuation that a statement
has been made if it hasn’t
2. 613(b): Extrinsic evidence of witness’s prior inconsistent
statement is admissible only if the witness is given an
opportunity to explain or deny the statement and an adverse
l.
party is given an opportunity to examine the witness about it,
or if justice so requires.
a. Use when you try to impeach with inconsistency and
the witness answers no  extrinsic evidence
b. This doesn’t apply to an opposing party’s statement
under 801(d)(2)
c. Two-fold requirement for admissibility of extrinsic
evidence:
i. Witness must have opportunity to explain the
statement
ii. Opposing party must have opportunity to
explore inconsistency with witness
d. Exceptions:
i. “If justice so requires”
1. There can be situations when its not
possible to give witness an opportunity to
explain inconsistency
2. Ex. If impeaching party finds out about
prior inconsistent statements only after
witness is dismissed and no longer
available
ii. Statements falling under 801(d)(2)
1. Admissible for the truth regardless of
whether party testifies
iii. Probative value & 403 concerns:
1. Risk of improper “substantive” use
a. Risk that jury will consider the statement not only for
impeachment value but also for its truth  unfair
prejudice
b. Rarely a basis for exclusion of evidence
c. Most prejudicial statements are usually also the most
probative
d. 403 test favors admissibility
2. Loss of memory & inconsistency
a. Claiming loss of memory of an event and having a prior
statement about that event can be viewed as
inconsistency
b. If claim of memory loss is plausible then there is no
inconsistency
3. Inconsistent statements about collateral matters
a. Probative value may be low and then 403 would require
exclusion
Impeachment of experts with statements in treatises
i. 803(18): Hearsay exception for learned treatises
1. Can use statements in treatises apart from impeachment value
as well
m. Prior consistent statements
i. Can be relevant to admit for two purposes:
1. To prove truth of their contents
a. Hearsay concerns
i. 801(d)(1)(B): Exception to hearsay for witness
statements that are:
1. Consistent with declarant’s testimony
AND
2. Offered to rebut express/implied charge
that declarant recently fabricated it or
acted from improper influence/motive in
testifying
ii. LIMITATION: Rule is interpreted narrowly 
only prior consistent statements made before
the time that a motive to fabricate or improperly
influence are within scope of the rule (Tome v.
United States)
1. If other prior consistent statements are
admitted for rehabilitation, there should
be a limiting instruction
2. To rehabilitate or bolster credibility by showing the witness
was consistent about a matter
a. Two views of 801(d)(1)(B):
i. Rule governs use of prior consistent statements
for both hearsay and rehabilitation purposes 
if not admissible for truth, it is not admissible for
rehabilitation
1. This says that the rule would eliminate
the need for limiting instruction when
prior consistent statement is admissible
ii. Rule is only a hearsay exception
1. This would mean that admissibility of
prior consistent statements for nonhearsay purposes is governed by 401-403
2. This would allow limiting instructions
n. Impeachment for bias
i. Three types of bias evidence:
1. Bias – all types of hostility or prejudice against the opponent
personally, or favor to the proponent personally
2. Interest – specific inclination to be produced by relation
between witness and case at issue in the litigation
3. Corruption – Conscious false intent inferable from giving or
taking a bribe or expressions of unscrupulousness for the case
a. This one can sometimes be considered character
evidence, not bias
ii. Any of these types of bias are admissible because they are highly
probative of insincerity
iii. Extrinsic evidence:
1. Can prove bias through extrinsic evidence too
2. Not automatically admissible  subject to 403 limitations
o. Mental or Sensory incapacity
i. Any sensory or mental deficiency that inhibits a witness’s ability to
perceive events accurately at the time they occur or to remember and
tell about them accurately is relevant  credibility issue
ii. Examples:
1. Intoxication
2. Mental illness
3. Memory problems
4. Color blindness
5. Basically any fact related to witness’s testimonial capacities on
the occasion in question
iii. Extrinsic evidence can be used to show mental or sensory incapacity
1. Can use courtroom experiments
2. Psychiatrist testimony
iv. Mental illness doesn’t bar people from testifying
1. Only exception would be if a mental condition prevents the
person from understanding their oath or obligation to testify
truthfully
p. Impeachment by contradiction
i. Can impeach a witness’s credibility by introducing evidence that
contradicts something the witness has said
ii. Governed by 401-403
iii. Collateralness doctrine: Idea that you cannot introduce extrinsic
evidence to impeach on a collateral matter
1. Not in the rules, this is a common law doctrine, but some
courts still use it
2. What is NOT collateral:
a. Facts relevant to substantive issues in the case
b. Facts relevant to impeach credibility (apart from
contradiction), if the evidence is admissible for noncontradiction impeachment
c. Facts recited by the witness that would undermine the
witness’s story if they aren’t true
3. Test for Collateralness
a. Could the fact have been proven with extrinsic evidence
for any purpose other than showing a contradiction?
i. YES  not collateral
ii. NO  collateral
VII.
Hearsay
a. Hearsay rule = out of court statements offered for the truth of the matter
asserted are not admissible in court
b. FRE 801: Definitions & Exclusions
i. 801(a): “Statement” = person’s oral assertion, written assertion, or
nonverbal conduct, if the person intended it as an assertion
1. Assertive conduct = conduct intentionally used by actor as a
substitute for words  hearsay
a. Silence can sometimes be considered conduct
i. Most relevant in two contexts:
1. Absence of complaint (to prove that a
danger or defect did not exist)
2. Silence by person accused of something
(to prove they were guilty)
2. Nonassertive conduct = not intended by the actor as an
assertion  not hearsay
a. There is no sincerity/ambiguity  hearsay danger
b. Relevance of such conduct depends on inferences
3. Disguised assertion/assertive conduct = when assertion is
offered to prove not the truth of what is asserted, but truth of
some fact that is inferred or implied from the matter directly
asserted
a. Two step inference:
i. Matter directly asserted
ii. What the proponent is trying to prove
b. Not barred by hearsay rule when the conduct or
statement is offered as basis for inferring something
other than the matter asserted
i. Still brings a hearsay danger of insincerity 
relatively small risk
4. Intent test = was the nonverbal conduct intended as an
assertion?
a. Decided based on nature of the conduct and
circumstances surrounding it
b. Absence of hearsay danger
c. Necessity
d. Intent must be decided by the judge pursuant to 104(a)
 burden to persuade judge is on the person objecting
to admission
e. Rationale behind intent requirement:
i. Sincerity of declarant
ii. Necessity  we would give up a lot of probative
evidence if we forced every non-verbal gesture
through a hearsay exception
iii. Weight of evidence is greater w/ intent
5. Statements by machines or animals  NOT hearsay
a. Hearsay rule applies only to statements by human
beings
b. Hearsay dangers don’t apply to machines (they are
unique to humans)
c. Must have foundation for statements by machines
i. Machines can sometimes have incorrect
information  must lay proper foundation for it
to admit
ii. 801(b): “Declarant” = the person who made the statement
iii. 801(c): “Hearsay” = statement that
1. Declarant does not make while testifying at the current trial or
hearing AND
2. The party offers in evidence to prove the truth of the matter
asserted in the statement
a. “Truth of the matter asserted” test:
i. Identify the “matter” that the out of court
statement is being offered to prove
ii. Apply to last inference that depends on
testimonial quality
b. Does not include oral or written utterance that is
offered to prove a declarant’s unstated beliefs, b/c these
are not offered to prove truth of the literal matters they
assert
iv. 801(d): Statements that are not hearsay:
1. Declarant-witness’s prior statement – if the declarant testifies
and is subject to cross about a prior statement, and the
statement:
a. Is inconsistent with the declarant’s testimony and was
given under penalty of perjury at trial, hearing, or other
proceeding or in a deposition
i. Does not include sworn affidavits
ii. Can use the statement for its substantive value
iii. Must be under oath
iv. If the witness denies ever having made the prior
statement, but there is independent evidence
that they did, the prior statement will probably
be inadmissible
v. Factors in favor of admitting:
1. No hearsay dangers
2. Can cross examine
3. Oath
4. Demeanor during previous statement is
irrelevant cause can look at current
demeanor
5. Recency
6. Improper influence
vi. Against admitting:
1. Hearsay dangers
2. Cross at the time of the statement is
important
vii. There might be a confrontation clause issue
b. Is consistent with the declarant’s testimony and is
offered to rebut an express or implied charge that the
declarant recently fabricated it or acted from a recent
improper influence or motive in so testifying OR
i. If rebuttal of accusation requirement is satisfied,
prior consistent statement is substantively
admissible
c. Identifies a person as someone the declarant perceived
earlier
i. Easier to get into evidence than prior consistent
or inconsistent statements
ii. Person must be testifying at trial and subject to
cross
iii. No requirement that identification was fair, and
not product of unfair bias or suggestion
2. An opposing party’s statement – the statement is offered
against an opposing party AND
a. Was made by the party in an individual or
representative capacity
b. Is one the party manifested that it adopted or believed
to be true
c. Was made by a person whom the party authorized to
make a statement on the subject
i. Can be implied authority
ii. No need for specific authorization of the
statement
d. Was made by the party’s agent or employee on a matter
within the scope of that relationship and while it existed
OR
e. Was made by the party’s coconspirator during and in
furtherance of the conspiracy
f. Foundational requirements for this rule:
i. Did the party adopt the statement
ii. Was there express or implied authority
iii. Consideration of circumstances
3. The statement must be considered but does not by itself
establish the declarant’s authority under (C), the existence or
scope of relationship under (D), or the existence of the
conspiracy or participation in it under (E)
c. FRE 802: The Rule Against Hearsay
i. Hearsay is not admissible unless any of the following provides
otherwise:
1. Federal statute
2. These rules
3. Other rules prescribed by the Supreme Court
d. Problems with hearsay:
i. Hearsay dangers (why hearsay is excluded):
1. Ambiguity
2. Sincerity
3. Perception
4. Memory
ii. In court, witnesses are under oath, jury can observe them when they
respond and speak, and are subject to cross
1. These things reduce testimonial/hearsay dangers and make in
court testimony more reliable
iii. More problems:
1. Lack of first-hand knowledge  this is a different rule, but
often confused with hearsay
a. If a witness makes a statement that sounds like it comes
from their own knowledge but its clear from context
that its based on hearsay, it is still treated as hearsay
b. Doesn’t usually make a difference if the objection is
based on lack of first-hand knowledge or hearsay
c. This rule has no exceptions so even if there is a hearsay
exception
e. Non-hearsay uses:
i. Effect on the listener
1. Can be used to create a state of mind (knowledge, good faith,
provocation, reasonable apprehension of bodily harm)
a. Ex. Warnings, threats, commands, etc.
ii. Legally operative facts
1. Facts that have independent legal significance based on
substantive law
a. Ex. Defamation case where the words themselves are
the crime/act that is relevant
b. Ex. Bribery, contractual language,
iii. Identifying non-hearsay uses:
1. Prior inconsistent statements (offered for impeachment)
2. Circumstantial evidence of declarant’s state of mind
3. Logically operative facts
iv. Existence of words at all
v. If a statement has both a hearsay and non-hearsay use, its admission
is determined by 403 balancing test
f. 805: Hearsay within hearsay
i. Hearsay within hearsay is not excluded by the rule against hearsay if
each part of the combined statements conforms with an exception to
the rule
1. Multiple hearsay is a thing too  each part must be able to be
admitted through an exception or exemption
a. If any of the declarations don’t fall within an exception,
nothing is admissible
b. Ex. Written report of an oral out-of-court statement
i. Look at whether the report is hearsay
ii. Then look at whether statements are hearsay
g. 803: Exceptions to hearsay:
i. Rationale for exceptions:
1. Particularly likely that the statements are so accurate or
truthful that the impossibility of probing the original speaker’s
statements is not that harmful
2. Statements are particularly necessary
3. Other factors are more important than potential harm of
allowing the statements  risks are outweighed by fairness
ii. Admissions: Admissions made by a party opponent can be admitted
against them
1. Treated separately than other types of hearsay
2. Admission has no special circumstances or guarantees of
reliability
3. Unclear whether admission should be considered an exception
to hearsay or not hearsay at all
a. Under 801(d)(2) they are NOT hearsay
4. Must distinguish admission from a declaration against interest
(separate exception)
a. Admission does not have to be against interest at the
time it was made
5. Out of court admission by a party is NOT binding  can still
offer evidence contradicting the admission
6. First hand knowledge is not required for an admission
7. Admission can be made in an individual or representative
capacity
8. Pleadings can also be treated as admissions
a. Civil pleadings in the same case  cannot be amended
b. Subsequent case  statements made in one case can be
introduced against someone in a subsequence case
c. Inconsistent pleadings  not admissible as
admissions
d. Multiple defendants  pleadings that are similar to
alternative counts in a single pleading will most likely
be excluded
i. Like if a plaintiff isn’t sure who injured him and
charges two defendants
e. Guilty plea  if not withdrawn, it is admissible as an
admission
i. For a minor offense (like a traffic ticket),
probably not admissible
1. This is because sometimes the cost of
litigating the issue was more than just
paying the fine, so it can’t be used as a
sign of guilt in other cases
ii. Withdrawn guilty plea  not admissible (410)
1. Not all states follow this approach though
9. Conduct as admission
a. Manifestation of guilt  criminal defendant’s flight after
a crime or attempt to obstruct justice is admissible as an
admission
b. Failure to testify or produce  defendant’s failure to
testify (in a civil case only) or failure to produce a
witness close to him or some item of evidence within
his control, or failure to go through some sort of
physical exam, are all admissible as admission evidence
i. Permissible but not mandatory to admit
10. Admission in a criminal case
a. Admissions by a criminal defendant are admissible
against them as long as there is no specific
constitutional guarantee that is being infringed (like a
Miranda rule)
11. Adoptive admissions
a. Statement is not hearsay if offered against a party and is
a statement they have manifested “adoption or belief” in
its truth
b. Test for adoption:
i. Express adoption
ii. Implied adoption  like if someone is present
while a statement is made and then takes action
that amounts to adoption
1. Includes silence (can be acquiescence)
iii. Whether, taking into account all
circumstances, the person’s conduct or
silence justifies the conclusion that they
knowingly agreed to the statement
c. Real acquiescence  court will look to all
circumstances to determine whether party’s conduct or
silence manifested a real and knowing agreement
with the other person’s statement
i. Insurance  death certificates
d. Silence  silence alone is not adoption
i. No agreement amongst courts about what else
has to be shown to consider silence adoption
ii. Factors:
1. Statement was heart by party claimed to
be acquiesced
2. Statement was understood by party
3. Subject matter was within party’s
knowledge
4. Impediments to response were not
present
a. Confusion, etc.
5. Statement itself must be such that if
untrue, would call for a denial under the
circumstances
iii. Silence is much harder to apply in letters or
other writings (like failure to reply to a letter)
12. Representative/vicarious admissions
a. Three types:
i. Explicitly authorized admission (801(d)(2))
1. Party expressly agreed that agent can
make a statement on the subject
2. Often applies to corporations
a. Sometimes there is a problem if
the person is only allowed to speak
in house about the topic  can be
protected, but modern trend is to
allow this to be admitted
b. Company books and records for
internal use alone are admissible
to admissions
ii. Vicarious admissions by agents
1. Not explicitly authorized to speak on the
matter, but the matter arises out of a
transaction within the agent’s authority
2. Admissible under 801(d)(2)(D)
3. Must show the agency relationship by
more than the contents of the statement
itself
iii. Other exceptions
1. Excited utterance exception, etc.
13. Co-conspirator admissions
a. Partnership  courts usually assume that when a
partner speaks for the partnership, they are authorized
to do so since they are part of the partnership
b. Liability of individual partner:
i. Each partner is fully liable for the debts of the
partnership
c. 801(d)(2)(E): General rule = Statements made by one
co-conspirator are admissible against the other coconspirator as long as the statement was made during
the course of the conspiracy and in furtherance of it
i. Rationale is based on reliability and necessity
ii. Can be admissible even if there is no conspiracy
charge
1. Also applies to previously acquitted coconspirator, if the other requirements are
satisfied
iii. Three requirements for this rule:
1. Must be by member of the same
conspiracy of which the party against
whom it is admitted is a member
2. Must be made while conspiracy was still
in force (during its course)
a. Termination:
i. Statements after
termination of the
conspiracy are only
admissible against the
declarant, not the other
members of the conspiracy
ii. If conspiracy was broken
up by an arrest of one
member, anything arrestees
say to police is not
admissible against the
others
iii. Conspiracy also ends once
it achieves its goal
b. Abandonment:
i. If a conspirator abandons
the conspiracy, statements
made by that member while
the conspiracy is still going
on are admissible, but
statements by the other
conspirators are not
admissible against the
abandoner
c. Statements before joining:
i. If one member joins while
conspiracy is going on,
statements are still
admissible against them
from before that person
joined  they are said to
have implicitly adopted the
earlier statements of the
earlier conspirators
3. Must have been made in order to further
aims of the conspiracy
a. Only admissible if the statement
was made for the purpose of
advancing the conspiracy’s
objectives
b. Things that are inadmissible b/c of
this requirement:
i. Confessions
ii. Narratives of past events
iii. Finger-pointing against a
co-conspirator
c. This requirement is sometimes
ignored by the courts
iv. Procedure:
1. Judge decides:
a. Existence of conspiracy
b. Satisfaction of other factual
requirements
2. How?
a. Can conduct “mini-trial” outside
the presence of the jury to see
whether it is more likely than not
that there was a conspiracy
b. Can decide based on evidence that
has already been admitted
c. Can admit statement subject to
later “connecting up”
i. Dangerous for prosecution
d. Independent evidence
i. Must have evidence outside
of the statement itself of the
conspiracy
14. Privity
a. Statements made by one person will be admissible as
admissions against another  “parties in privity”
i. Applies to personal property and intangibles as
well
ii. Joint tenancy  parties that are joint tenants or
tenants in common
iii. Intangibles  statements made by owner of
note, contract right, copyright, etc. can be
admitted against any successor in interest
b. This is not explicit in the federal rules but most courts
recognize it
iii. 803(1): Present sense impression
1. Statement describing or explaining an event or condition made
while or immediately after the declarant perceived it
2. Foundational requirements:
a. Occurrence of the event or condition
b. Contents of the statement describe or explain the event
or condition
i. Can be an opinion too
c. Declarant made the statement while or immediately
after perceiving the event or condition
i. No time can pass between event and statement
d. Must have perceived the event, not heard about it from
someone else
3. Justification: proves sincerity
a. Spontaneous statements are not premeditated so there
is no time to fabricate
b. Eliminates memory problem
iv. 803(2): Excited utterance
1. Statement relating to a startling event or condition, made while
the declarant was under the stress of excitement that it caused
2. Foundational requirements:
a. Occurrence of startling event or condition
i. Must be “sufficiently startling”  would a
normal person have spoken before thinking?
1. Courts are split on whether there has to
be independent proof of the event or
statement alone is enough
b. Contents of statement relate to the event or condition
c. Declarant made the statement while under stress of
excitement
d. Stress of excitement was caused by startling event or
condition
3. Factors to consider:
a. Lapse of time  longer time doesn’t defeat this
exception, if defendant remains under stress
i. General rule: Statements made during event or
within half an hour are generally admissible, an
hour or more later are generally excluded, and
within 30 min to an hour are dealt with based on
circumstances
ii. If there is shock, memory loss, coma or some
other condition that delays the time for
reflection, the time can be prolonged
iii. If there was no time to reflect  time can be
prolonged
b. Whether made in response to an inquiry
c. Age
d. Physical and mental condition of the defendant
e. Characteristics of the event
f. Subject matter of the statement
v. 803(3): Then-existing mental, emotional or physical condition
1. Statement of declarant’s then-existing state of mind (motive,
intent, plan, etc.) or emotional, sensory or physical condition
(such as mental feeling, pain or bodily health), but not
including a statement of memory or belief to prove the fact
remembered or believed unless it relates to the validity or
terms of the declarant’s will
a. Physical condition  most often used for pain
i. When statement is made to a layperson  only
admissible if it relates to present bodily
condition or symptoms
1. Must be spontaneous (to prevent
manufacture of evidence)
ii. When made to physician  look to 803(4)
b. Mental or emotional state  two types of statements:
i. State of mind directly in issue
1. Statements offered to prove the mental
state asserted because the mental state is
at issue in the litigation
2. Only applies to THEN EXISTING mental
state
a. Admissible even if the ultimate
mental state at issue in the case is
one that pre-dates or post-dates
the statement at issue
ii. Proof of subsequent act
1. Statements when the mental state
referred to is not directly at issue, but is
circumstantial evidence of some other
fact at issue
a. Usually the other fact will be a past
or future act by the declarant
2. Basically being used to prove that some
subsequent act took place when the act is
at issue
a. Often used to show intent
3. Limitation:
a. Relevance
2. Foundational requirements:
a. Contents of statement express declarant’s state of mind
that is currently existing at time of statement
b. State of mind can include motive, intent, plan,
emotional, sensory or physical condition, mental feeling,
pain or bodily health
c. State of mind of memory or belief CANNOT be used to
prove the fact remembered or believed unless it relates
to the validity or terms of the declarant’s will
3. Cannot use statements of mental state as circumstantial
evidence that a prior event caused the mental state  this
would essentially abolish the hearsay rule
a. This exception doesn’t apply to statements of memory
or belief about past actions or events
b. EXCEPTION:
i. Wills  can admit statements relating to
someone’s own will, even if they are memory or
belief offered to prove the fact remembered or
believed
4. Justification:
a. No risk of misperception
b. No memory danger
c. No requirement for spontaneity means sincerity risk is
substantial
d. Necessity
vi. 803(4): Statement made for medical diagnosis or treatment
1. Statement that is:
a. Made for, and reasonably pertinent to, medical
diagnosis or treatment AND
b. Describes medical history, past or present symptoms or
sensations, their inception or their general cause
i. Past symptoms  still admissible, doesn’t have
to be about present bodily condition
ii. Cause  statements about cause of pain are
admissible if they are reasonably related to
treatment
1. BUT statements about fault are generally
not admissible
2. Statement would be relied upon by the doctor  makes it
more reliability
a. More likely to be admitted then statement about pain or
medical issue that is made to a layperson
3. Foundational requirements:
a. Statement made for purpose of medical treatment
b. Must describe medical history, symptoms, sensations,
or causes
c. Reasonably pertinent to diagnosis or treatment
d. Does not require declarant to be the patient and talking
about their own medical symptoms
i. Can be family, friends, nurses, etc.
ii. Patient can be speaking to intermediary (not
doctor)
1. This includes social workers, therapists,
pharmacists, etc.
e. Applies only to statements by people seeking and not
giving care
4. Justification:
a. Selfish motive on the part of the declarant to be truthful
b. Sincerity and danger risks are minimized
c. Patients still lie when it comes to smoking, sex, alcohol,
drugs, etc.  be careful of this
vii. 803(5): Recorded recollection
1. A record that:
a. Is on a matter the witness once knew about but now
can’t recall well enough to testify fully and accurately
b. Was made or adopted by the witness when the matter
was fresh in their memory AND
c. Accurately reflects the witness’s knowledge
2. If admitted, record can be read into evidence but can only be
received as an exhibit if offered by adverse party
3. Can also be a recording, doesn’t have to be written record
a. Best evidence rule applies  must be original unless
the original is unavailable through no fault of the
proponent
4. Foundational requirements:
a. Declarant is testifying as a witness
b. Statement is in the form of a record
c. Statement is on a matter about which the witness once
had personal knowledge (first-hand knowledge)
d. Witness can’t remember the matter sufficiently to
testify fully and accurately
i. Witness must have suffered at least some
impairment of memory of the events recorded
e. Statement was made or adopted by the witness when
the matter was fresh in witness’s memory
f. Statement accurately reflects witness’s knowledge
i. Witness must testify to the accuracy of the
record
ii. If the witness is not the person testifying about
the record, the witness must have approved or
adopted the record after it was made as an
accurate reflection of knowledge
viii. 803(6): Records of regularly conducted activity
1. A record of an act, event, condition, opinion or diagnosis if:
a. Record was made at or near the time by, or from
information transmitted by, someone with knowledge
b. Record was kept in course of regularly conducted
activity of a business, organization, occupation, or
calling, whether or not for profit
i. Includes schools, churches, hospitals
ii. Also includes police records
c. Making the record was a regular practice of that activity
d. All these conditions are shown by testimony of the
custodian or another qualified witness, or by
certification that complies with rule 902(11) or 902(12)
or with a statute permitting certification AND
e. Neither the source of information nor the method or
circumstances of preparation indicate a lack of
trustworthiness
2. Requirements:
a. Regular entries
i. Entries must be made in the routine of a
business
ii. Oral records are usually not allowed
b. Knowledge
i. Record must have been made by, or from
information from, a person with personal
knowledge of the matter record
c. Timeliness
i. Entries must have been made at or near the time
of the matter recorded
d. Witness must testify to all these things
i. Witness testifying to the record will usually be
someone with authority in the record-keeping
department
ii. Alternative: can come into evidence based on
certification without any testimony by a
foundation witness
3. Judge can exclude information for lack of trustworthiness
a. Information whose primary purpose is litigating
b. Interpret narrowly what constitutes regular business
conduct and would eliminate documents prepared with
self-interested business or personal motivation
4. Burden of persuasion  opponent to record has the burden
a. Must produce “specific and credible” evidence of
untrustworthiness
5. Rationale:
a. Written records are often best evidence of events that
happen during course of business
b. More trustworthy
i. Court can exclude things it thinks are still
untrustworthy
ix. 803(7): Absence of a record of regularly conducted activity
1. Evidence that a matter is not include in a record described in
803(6) if:
a. Evidence is admitted to prove that the matter did not
occur or exist
b. A record was regularly kept for a matter of that kind
AND
c. Neither the possible source of the information nor other
circumstances indicate a lack of trustworthiness
2. General rule: Most courts allow absence of entry as evidence
of the non-occurrence of the event
a. Usually this isn’t even hearsay because there is no
assertion  it is only hearsay if it is considered a
declaration that nothing happened
x. 803(8): Public records
1. A record or statement of a public office if:
a. It sets out
i. Office’s activities
1. Generally activities of the agency or office,
like in a policy manual
ii. Matter observed while under a legal duty to
report, but not including, in a criminal case, a
matter observed by law-enforcement personnel
or
1. If observations were made in line of duty
and official had duty to report those
observations
iii. In a civil case or against the government in a
criminal case, factual findings from a legally
authorized investigation, and
1. Only factual findings from an
investigation
a. Opinions, evaluations and
conclusions in the report are
admissible as long as they are
based on factual statements
2. Investigative reports
3. Cannot be used against a criminal
defendant
b. Neither the source of the information nor other
circumstances indicate a lack of trustworthiness
i. Factors:
1. Timeliness
2. Special skill or experience of the official
3. Whether hearing was held and the level at
which it was conducted
4. Motivation problems
2. Government records usually fall under both business and
public records, but the difference is that public records
exception can be used without any testimony at all if a
certification procedure is used
a. Certification  official in charge of the document can
copy the document and make a written certification
3. Can also apply to records that are not otherwise open to the
public, like something obtained through freedom of
information act, etc.
4. Hearsay within hearsay in public records:
a. Three categories:
i. Report by one government agent to another  if
the report quotes the first agent’s statements,
the quoted statements can come in as evidence
of the truth of the matters they assert
ii. Statements by those without duty to talk 
quoted statements by third party with no duty to
talk to the government are not admissible unless
they fall under some other hearsay exception
iii. Reports based on statements  does not make
the report inadmissible, but this is a factor in
determining the trustworthiness of the
document (803(8)(b))
xi. 803(9): Public records of vital statistics
1. A record of a birth, death, or marriage, if reported to a public
office in accordance with a legal duty
xii. 803(10): Absence of a public record
1. Testimony, or a certification under 902, that a diligent search
failed to disclose a public record or statement if
a. Testimony or certification is admitted to prove that
i. The record or statement does not exist or
xiii.
xiv.
xv.
xvi.
xvii.
ii. A matter did not occur or exist, if a public office
regularly kept a record or statement for a matter
of that kind, AND
b. In a criminal case, a prosecutor who intends to offer a
certification provides written notice of intent at least 14
days before trial, and defendant doesn’t object within 7
days of receiving notice, unless court sets different
times for notice and objection
2. Two ways:
a. Certificate by keeper of records in question that diligent
search was done and failed to find record
b. Testimony of the record keeper saying the same thing
803(11): Records of religious organizations concerning personal
or family history
1. Statement of birth, legitimacy, ancestry, marriage, divorce,
death, relationship by blood or marriage, or similar facts of
personal or family history, contained in a regularly kept record
of religious organization.
803(12): Certificates of marriage, baptism and similar
ceremonies
1. A statement of fact contained in a certificate
a. Made by a person who is authorized by a religious
organization or by law to perform the act certified
b. Attesting that the person performed a marriage or
similar ceremony or administered a sacrament AND
c. Purporting to have been issued at the time of the act or
within a reasonable time after it
803(13): Family records
1. A statement of fact about personal or family history contained
in a family record, such as a Bible, genealogy, chart, engraving
on a ring, inscription on a portrait, or engraving on an urn or
burial maker
803(14): Records of documents that affect an interest in property
1. The record of a document that purports to establish or affect
an interest in property if:
a. The record is admitted to prove the content of the
original recorded document along with its signing and
its delivery by each person who purports to have signed
it
b. The record is kept in a public office AND
c. A statute authorizes recording documents of that kind
of office
803(15): Statements in documents that affect an interest in
property
1. A statement contained in a document that purports to establish
or affect an interest in property if the matter stated was
xviii.
xix.
xx.
xxi.
relevant to the document’s purpose — unless later dealings
with the property are inconsistent with the truth of the
statement or the purport of the document.
803(16): Statements in ancient documents
1. A statement in a document that is at least 20 years old and
whose authenticity is established.
2. Rationale:
a. Document is required, so there is greater assurance of
reliability
b. Requirement of 20 years makes it likely that the writing
predates the present controversy, removing motive for
the writer to have lied
3. Limitation:
a. There must be first-hand knowledge
803(17): Market reports and similar commercial publications
1. Market quotations, lists, directories, or other compilations that
are generally relied on by the public or by persons in particular
occupations.
2. Proponent must show that evidence is generally reliable
803(18): Statements in learned treatises, periodicals or
pamphlets
1. A statement contained in a treatise, periodical, or pamphlet if:
a. the statement is called to the attention of an expert
witness on cross-examination or relied on by the expert
on direct examination; and
b. the publication is established as a reliable authority by
the expert’s admission or testimony, by another
expert’s testimony, or by judicial notice.
2. If admitted, the statement may be read into evidence but not
received as an exhibit.
3. Procedure:
a. Direct:
i. Can be brought into evidence by an expert
witness who can testify that the treatise is
authoritative, and parts can be read into the
record as part of that party’s case
b. Cross:
i. Can be used even if the expert didn’t rely on the
treatise and refuses to recognize its
authoritativeness
ii. Must still establish its authoritativeness in some
way
c. Expert must be on the stand when the treatise is read
into evidence to prevent misuse or misunderstanding
by the jury
803(19): Reputation concerning personal or family history
xxii.
xxiii.
xxiv.
xxv.
1. A reputation among a person’s family by blood, adoption, or
marriage — or among a person’s associates or in the
community — concerning the person’s birth, adoption,
legitimacy, ancestry, marriage, divorce, death, relationship by
blood, adoption, or marriage, or similar facts of personal or
family history.
803(20): Reputation concerning boundaries or general history
1. A reputation in a community — arising before the controversy
— concerning boundaries of land in the community or customs
that affect the land, or concerning general historical events
important to that community, state, or nation.
803(21): Reputation concerning character
1. A reputation among a person’s associates or in the community
concerning the person’s character.
2. Limitation:
a. Character evidence rules still apply
803(22): Judgment of a previous conviction
1. Evidence of a final judgment of conviction if:
a. The judgment was entered after a trial or guilty plea,
but not a nolo contendere plea;
b. The conviction was for a crime punishable by death or
by imprisonment for more than a year;
c. The evidence is admitted to prove any fact essential to
the judgment; and
d. When offered by the prosecutor in a criminal case for a
purpose other than impeachment, the judgment was
against the defendant.
2. The pendency of an appeal may be shown but does not affect
admissibility.
3. This exception is mostly used when plaintiff in a civil suit
wants to use prior criminal conviction of defendant or third
person to prove some fact relevant to the case
a. This doesn’t apply to prior judgments in civil cases
4. Cannot use this exception to admit conviction of a third person
5. Most courts don’t allow misdemeanor convictions to be used in
subsequent proceedings
a. Sometimes more sensible to pay fine than litigate in
these cases even if they are innocent
803(23): Judgments involving personal, family, or general
history or a boundary
1. A judgment that is admitted to prove a matter of personal,
family, or general history, or boundaries, if the matter:
a. Was essential to the judgment; and
b. Could be proved by evidence of reputation.
h. 804: Exceptions to hearsay when the declarant is unavailable as a
witness
i. 804(a): Criteria for being unavailable
1. A declarant is considered to be unavailable as a witness if the
declarant:
a. Is exempted from testifying about the subject matter of
the declarant’s statement because the court rules that a
privilege applies
b. Refuses to testify about the subject matter despite a
court order to do so
c. Testifies to not remembering the subject matter
d. Cannot be present or testify at the trial or hearing
because of death or a then-existing infirmity, physical
illness, or mental illness or
e. Is absent from the trial or hearing and the statement’s
proponent has not been able, by process or other
reasonable means, to procure
i. The declarant’s attendance, in the case of a
hearsay exception under rule 804(b)(1) or
804(b)(6) or
ii. The declarant’s attendance or testimony, in the
case of a hearsay exception under 804(b)(2),
804(b)(3), or 804(b)(4)
1. Must also show that getting a deposition
was unsuccessful
2. Confrontation clause issues:
a. If prosecution is introducing out of
court declaration for which the
declarant’s unavailability is
required, the defendant has right
to cross-examine witnesses
against him  could be violated
with unavailable defendant
b. Someone just being absent from
the state and can’t be compelled to
testify is not sufficient to satisfy
confrontation clause
c. Must show that attendance could
not be procured by means other
than process
2. This subdivision does not apply if the statement’s proponent
procured or wrongfully caused the declarant’s unavailability as
a witness in order to prevent the declarant from attending or
testifying
a. If defendant purposely causes unavailability to evade
testimony, defendant will have forfeited right to invoke
confrontation clause
b. If defendant caused the unavailability but did not act
with purpose to avoid testimony  no forfeiture of
confrontation clause
3. SUMMARY:
a. State must show that witness is beyond the state’s
own process AND
i. That it made good faith effort to procure
witness OR
ii. Such efforts would have been very unlikely to
succeed
ii. 804(b): EXCEPTIONS: The following are not excluded by the rule
against hearsay if the declarant is unavailable:
1. Former testimony – testimony that
a. Was given as a witness at trial, hearing or lawful
deposition whether during the current proceeding or a
different one AND
i. Hearing = any setting in which sworn testimony
by a witness is taken
ii. Proceeding = any official inquiry conducted in a
manner authorized by law, whether judicial,
administrative, legislative, investigative, or
inquisitorial
iii. Includes:
1. Prior trial
2. Preliminary hearing
3. Grand jury investigation
4. Suppression hearing
5. Deposition
iv. Does not include:
1. Affidavits
2. Statements made to police/law
enforcement officials
v. MUST BE MADE UNDER OATH
b. Is now offered against a party who hard, or in a civil
case whose predecessor in interest had, an opportunity
and similar motive to develop it by direct, cross or
redirect examination
i. This includes if someone who was an observer at
a prior hearing and is orally recounting the
testimony
c. Requirements:
i. Declarant is unavailable
ii. Former testimony was made in a hearing,
deposition or proceeding
iii. Party against whom the testimony is offered had
opportunity to examine in prior proceeding
1. Actual examination not required, as long
as there was a reasonable opportunity
2. Can be direct OR cross examination
iv. Party against whom testimony is offered had
similar motive in prior proceeding
1. Only if there was a similar motive would
the former testimony be a reasonable
substitute for unavailable live testimony
2. If issues or stakes were different  no
assurance that equivalent examination
could have been performed (or was
performed)
3. Issues and stakes must be similar, and
parties must be the same
v. Identity of parties:
1. There must be an identity of parties
between the two proceedings  the party
against whom the former testimony must
have been a party at the prior proceeding
2. In civil cases, this is interpreted more
loosely if there was another party with
similar motive to examine
3. In criminal cases, interpreted strictly
2. Statement under the belief of imminent death
a. In a prosecution for homicide or in a civil case, a
statement that the declarant, while believing the
declarant’s death to be imminent, made about its cause
or circumstances
b. Requirements:
i. Awareness of imminent death
1. Can be shown by person’s statements,
severity of wounds, or evidence of
statements made by others (like doctors)
to the victim of impending death can be
used to show they knew they were dying
2. Must believe that death was imminent
ii. Actual death not required
iii. Homicide
1. Declarations are not usable in nonhomicide criminal cases
2. Are still allowed in civil cases
iv. Must relate to circumstances of killing
1. Declaration concerns cause or
circumstances of what the person
believed to be their impending death
v. First hand knowledge
vi. Can be admitted on the behalf of the defendant
1. Usually admitted against them
vii. Can include opinions
1. Unless opinion testimony is outweighed
by factual testimony  judge can keep
this out
c. Rationale:
i. Dying declarant would be unwilling to “go to his
maker with a lie on his lips”
3. Statement against interest – a statement that
a. A reasonable person in the declarant’s position would
have made only if the person believed it to be true
because, when made, it was so contrary to the
declarant’s proprietary or pecuniary interest or had
so great a tendency to invalidate the declarant’s claim
against someone else or to expose the declarant to civil
or criminal liability; and
i. Against interest includes:
1. Pecuniary interest:
a. Property/property rights
b. Debts
c. Tort liability
2. Penal interest:
a. False confessions
b. False testimony
c. Can also introduce statements
against declarant’s penal interest
to inculpate the excused
i. Usually used for statements
exculpating the accused
ii. No need for corroboration
in this case (nothing in the
rules
3. If there is evidence that the declarant
didn’t realize the statement was against
their interest when they made it  most
likely will be excluded
a. Use reasonable person standard
ii. Collateral statements:
1. There is an issue when there is a
statement where part of it is against
interest and part is neutral or self-serving
(aka collateral)  NOT admissible under
804(b)(3)
iii. “Testimonial” statements:
1. If a statement against interest is
testimonial, it brings a confrontation
clause issue and won’t be admissible
b. Is supported by corroborating circumstances that
clearly indicate its trustworthiness, if it is offered in a
criminal case as one that tends to expose the declarant
to criminal liability.
i. Corroboration factors:
1. Motive
2. General character of declarant
3. People hearing the statements
4. Spontaneity of the statement
5. Timing of declaration
6. Relationship between declarant and
witness
7. Other evidence linking declarant to crime
c. Requirements:
i. Against interest when made
1. If later developments make the statement
against interest, it is not enough to meet
this rule
ii. Declarant is unavailable
iii. First-hand knowledge of facts in declaration
4. Statement of Personal or Family History – statement about:
a. The declarant’s own birth, adoption, legitimacy,
ancestry, marriage, divorce, relationship by blood,
adoption, or marriage, or similar facts of personal or
family history, even though the declarant had no way of
acquiring personal knowledge about that fact; or
b. Another person concerning any of these facts, as well as
death, if the declarant was related to the person by
blood, adoption, or marriage or was so intimately
associated with the person’s family that the declarant’s
information is likely to be accurate.
i. Can be a non-relative if the person has a close
relationship with the family
5. Other exceptions
a. Transferred to rule 807
6. Statement Offered Against a Party That Wrongfully Caused
the Declarant’s Unavailability
a. A statement offered against a party that wrongfully
caused — or acquiesced in wrongfully causing — the
i.
declarant’s unavailability as a witness, and did so
intending that result.
i. Proponent only needs to show by
preponderance of the evidence that party
against whom the declaration would be used has
intentionally committed the wrongdoing that
made the declarant unavailable
807: Residual Exception
i. 807(a): Under the following circumstances, a hearsay statement is
not excluded by the rule against hearsay even if the statement is not
specifically covered by a hearsay exception in 803 or 804
1. the statement has equivalent circumstantial guarantees of
trustworthiness;
2. it is offered as evidence of a material fact;
3. it is more probative on the point for which it is offered than
any other evidence that the proponent can obtain through
reasonable efforts; and
4. admitting it will best serve the purposes of these rules and the
interests of justice.
ii. 807(b): Notice – the statement is admissible only if, before the trial
or hearing, the proponent gives an adverse party reasonable notice of
the intent to offer the statement and its particulars, including the
declarant’s name and address, so that the party has a fair opportunity
to meet it.
iii. This is the broad “catch-all” exception
iv. Requirements:
1. Circumstantial guarantees of trustworthiness
a. Make it equivalent to 803 and 804 reliability
b. Factors of the declarant:
i. Oath
ii. Time lapse between event and statement
iii. Motive for truth
iv. First-hand knowledge
v. Written v. oral statement
vi. Corroboration by other evidence
2. Material fact
a. Must be offered as evidence of a material fact
3. More probative
a. Must be more probative on the point for which it is
offered than any other evidence the proponent can get
i. Unavailability – usually successful when
declarant is unavailable
4. Interests of justice
a. Consistent with general purposes of rules and interests
of justice
5. Notice
j.
a. Person offering evidence must give notice of intention
to offer it in advance
b. Must include particulars of statement
c. There is some discretion with this requirement – can
get continuance, and notice after trial starts can be okay
v. Common uses:
1. Grand jury testimony
a. Doesn’t fall under 804(b)(1) because there was no
opportunity to cross
2. Notes by observer
a. Handwritten notes by observer of an event, when the
person is not available to testify
3. Oral statement
a. When declarant is unavailable, or denies making the
statement, and evidence is badly needed, and there are
circumstantial guarantees of reliability
4. Child abuse victims
a. Used to allow use of out of court statements by children
who are victims of abuse
Confrontation clause:
i. ONLY APPLIES TO TESTIMONIAL STATEMENTS
ii. RULE: Testimonial statement cannot be admitted against the accused
in the absence of declarant’s presence and availability for cross
UNLESS:
1. Declarant is unavailable to testify
2. Accused had prior opportunity to cross declarant about the
statement
iii. 6th amendment says that a defendant has to have the ability to
confront the person accusing him
iv. When prosecution is using 3rd party declaration to inculpate the
accused, the confrontation clause can help the accused keep the
statement out:
1. “Testimonial” statements  Cannot be admitted against
accused unless the declarant is available to be cross-examined
about the statement (Crawford)
a. Statements made in custody
b. Statements in response to police interrogation
c. Prior testimony at a hearing, grand jury, trial, etc.
d. Lab reports (created by scientists or people working
with law enforcement)
2. Non-testimonial statements:
a. 911 calls
b. Excited utterances
c. Statements for medical treatment or diagnosis
v. When accused wants exculpate themselves through 3rd party’s
declaration against interest, can make an argument based on due
VIII.
process (5th/14th amendment) and compulsory process clauses (6th
amendment)
Foundation
a. Process of laying foundation:
i. Things are received into evidence after being given number or letter
designation based on the party and place in the trial
ii. After it is offered, opposing counsel can object based on lack or
foundation or other grounds
iii. Conditional admission = Can admit something subject to additional
evidence
iv. Identification = what is the item
v. Authentication = genuineness of the item
vi. Real evidence = tangible items that played a role in the litigated
event and from which jury can draw inferences
1. Must be identified and stuff
vii. Demonstrative evidence = tangible evidence that just illustrates a
matter of importance in the litigation
1. Ex. Maps, diagrams, models, etc.
viii. Chain of custody identification - when exhibit is generic and doesn't
have identifiable characteristics, links in chain of custody would be
the people who had the item between the time it was found at the
scene and when it got to the courtroom
1. Chain of custody can also establish unchanged condition/lack
of tampering/that item is in same condition as when it was
discovered
a. Sometimes required
b. 601: Competency to testify in general
i. Every person is competent to be a witness unless these rules provide
otherwise. But in a civil case, state law governs the witness’s
competency regarding a claim or defense for which state law supplies
the rule of decision.
ii. Children:
1. Can testify as long as they can understand and answer simple
questions
2. There are issues of credibility, but not of competence
a. Issues of competence are resolved by trial courts 601
authority, or under 602, 603 and 403
c. 602: Need for personal knowledge
i. 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.
ii. Jury can find that it is more probable than not that the witness has
personal knowledge based on 104(b) and 901 standards
d.
e.
f.
g.
1. Usually just requires asking if the witness did in fact see or
hear the matters at hand
603: Oath or affirmation to testify truthfully
i. Before testifying, a witness must give an oath or affirmation to testify
truthfully. It must be in a form designed to impress that duty on the
witness’s conscience.
605: Judge’s competency as a witness
i. The presiding judge may not testify as a witness at the trial. A party
need not object to preserve the issue.
ii. This would lead to procedural complications and unfair prejudicial
effect of testimony on jurors
606: Juror’s competency as a witness
i. 606(a): At trial
1. A juror may not testify as a witness before the other jurors at
the trial. If a juror is called to testify, the court must give a
party an opportunity to object outside the jury’s presence.
ii. 606(b): During an Inquiry into the Validity of a Verdict or
Indictment
1. Prohibited Testimony or Other Evidence. During an inquiry
into the validity of a verdict or indictment, a juror may not
testify about any statement made or incident that occurred
during the jury’s deliberations; the effect of anything on that
juror’s or another juror’s vote; or any juror’s mental processes
concerning the verdict or indictment. The court may not
receive a juror’s affidavit or evidence of a juror’s statement on
these matters.
2. Exceptions: A juror may testify about whether:
a. extraneous prejudicial information was improperly
brought to the jury’s attention;
b. an outside influence was improperly brought to bear on
any juror; or
c. a mistake was made in entering the verdict on the
verdict form.
iii. This would lead to procedural complications and unfair prejudicial
effect of testimony on other jurors
Exhibits & Authentication:
i. All evidence must be authenticated before it is admitted
ii. 901: Authenticating or identifying evidence
1. 901(a): In General: To satisfy the requirement of
authenticating or identifying an item of evidence, the
proponent must produce evidence sufficient to support a
finding that the item is what the proponent claims it is.
a. Not a very high standard, but nothing is generally
presumed to be authentic
b. Proponent just has to have some connection between
exhibit and parties or events of the case
c. Connection is what the court requires to be proven to
authenticate the exhibit
d. Authenticating real evidence  Show the object is the
object that was involved in the underlying event
i. Two ways:
1. Ready identifiability – if the item is
unique, the witness just has the testify
that the object they originally saw had a
unique identifier and that the item shown
in court has that same identifier
2. Chain of custody – when one element of
identifiability is absent (like the object is
not unique), you must have every person
who has handled or possessed the object
since it was first recognized as relevant to
the case explain what they did with it
a. This is required to prevent
tampering with evidence
e. Authenticating demonstrative evidence  show that
the object fairly represents or illustrates what it is
claimed to represent or illustrate
2. 901(b): Examples. The following are examples only — not a
complete list — of evidence that satisfies the requirement:
a. Testimony of a Witness with Knowledge. Testimony
that an item is what it is claimed to be
b. Nonexpert Opinion About Handwriting. A
nonexpert’s opinion that handwriting is genuine, based
on a familiarity with it that was not acquired for the
current litigation.
c. Comparison by an Expert Witness or the Trier of
Fact. A comparison with an authenticated specimen by
an expert witness or the trier of fact.
d. Distinctive Characteristics and the Like. The
appearance, contents, substance, internal patterns, or
other distinctive characteristics of the item, taken
together with all the circumstances.
e. Opinion About a Voice. An opinion identifying a
person’s voice — whether heard firsthand or through
mechanical or electronic transmission or recording —
based on hearing the voice at any time under
circumstances that connect it with the alleged speaker.
f. Evidence About a Telephone Conversation. For a
telephone conversation, evidence that a call was made
to the number assigned at the time to:
i. a particular person, if circumstances, including
self-identification, show that the person
answering was the one called; or
ii. a particular business, if the call was made to a
business and the call related to business reasonably transacted over the telephone.
1. Authentication of phone conversation
contents requires establishing parties to
the conversation
2. Outgoing calls  must show that the
person made a call to the number
assigned by the phone company to a
particular person, and that the
circumstances show that the person who
talked on the other end was in fact the
person they were trying to reach
a. Self-identification is enough
b. Witness/caller identification of
voice is also enough
3. Incoming calls 
a. Self-identification is not enough
because someone could
impersonate the caller or the
callee could fabricate the whole
conversation
b. Voice recognition based on prior
conversation
c. Knowledge only the caller would
have had
d. Phone company records
g. Evidence About Public Records. Evidence that:
i. a document was recorded or filed in a public
office as authorized by law; or
ii. a purported public record or statement is from
the office where items of this kind are kept.
h. Evidence About Ancient Documents or Data
Compilations. For a document or data compilation,
evidence that it:
i. is in a condition that creates no suspicion about
its authenticity;
ii. was in a place where, if authentic, it would likely
be; and
iii. is at least 20 years old when offered.
iv. Requirements:
1. 20 years old
2. documents or data compilations in any
form (including electronically stored
data)
3. unsuspicious in appearance
4. not a guarantee of admissibility  still
subject to hearsay rules
i. Evidence About a Process or System. Evidence
describing a process or system and showing that it
produces an accurate result.
j. Methods Provided by a Statute or Rule. Any method
of authentication or identification allowed by a federal
statute or a rule prescribed by the Supreme Court.
iii. Admission of evidence:
1. Judge has to decide whether there is some evidence from
which the jury could reasonably find that the item is what its
claimed to be  can allow admission
a. Jury decides whether it is that
2. Opponent can still challenge the evidence’s authenticity even
after it is admitted, as well as the weight it should be given
iv. Writings & recorded communications:
1. Authentication of writing requires showing who the author is
2. No presumption of authenticity
3. If there is a signature, it will still not automatically be believed
or be authenticated
4. Can authenticate by direct testimony
5. Can authenticate through distinctive characteristics or
circumstances
v. Self-authenticating documents  no need for extrinsic evidence of
authenticity:
1. State statutes
a. Deeds
b. Notarized documents
c. Certified copies of public records
d. Books of statutes printed by government body
2. Official publications
3. Newspapers and periodicals
4. Trade inscriptions
5. Business records
h. Best evidence rule
i. 1001: Definitions
1. A “writing” consists of letters, words, numbers, or their
equivalent set down in any form.
2. A “recording” consists of letters, words, numbers, or their
equivalent recorded in any manner.
3. A “photograph” means a photographic image or its equivalent
stored in any form.
ii.
iii.
iv.
v.
4. An “original” of a writing or recording means the writing or
recording itself or any counterpart intended to have the same
effect by the person who executed or issued it. For
electronically stored in- formation, “original” means any
printout — or other output readable by sight — if it accurately
reflects the information. An “original” of a photograph includes
the negative or a print from it.
5. A “duplicate” means a counterpart produced by a mechanical,
photographic, chemical, electronic, or other equivalent process
or technique that accurately reproduces the original.
1002: Requirement of the original
1. An original writing, recording, or photograph is required in
order to prove its content unless these rules or a federal
statute provides otherwise.
a. Audio or computer tape would be covered
1003: Admissibility of duplicates
1. A duplicate is admissible to the same extent as the original
unless a genuine question is raised about the original’s
authenticity or the circumstances make it unfair to admit the
duplicate.
a. Can use photocopies without showing that original is
unavailable
b. Duplicate must be made through reliable and accurate
reproduction technique
i. Doesn’t include manually produced
(handwritten or typed) copies
c. Adversary can raise “genuine question” about
authenticity if they want
1004: Admissibility of other evidence of content:
1. An original is not required and other evidence of the content of
a writing, recording, or photograph is admissible if:
a. all the originals are lost or destroyed, and not by the
proponent acting in bad faith;
b. an original cannot be obtained by any available judicial
process;
c. the party against whom the original would be offered
had control of the original; was at that time put on
notice, by pleadings or otherwise, that the original
would be a subject of proof at the trial or hearing; and
fails to produce it at the trial or hearing; or
d. the writing, recording, or photograph is not closely
related to a controlling issue.
1005: Copies of public records to prove content
1. The proponent may use a copy to prove the content of an
official record — or of a document that was recorded or filed in
vi.
vii.
viii.
ix.
a public office as authorized by law — if these conditions are
met: the record or document is otherwise admissible; and the
copy is certified as correct in accordance with Rule 902(4) or is
testified to be correct by a witness who has compared it with
the original. If no such copy can be obtained by reasonable
diligence, then the proponent may use other evidence to prove
the content.
1006: Summaries to prove content
1. The proponent may use a summary, chart, or calculation to
prove the content of voluminous writings, recordings, or
photographs that cannot be conveniently examined in court.
The proponent must make the originals or duplicates available
for examination or copying, or both, by other parties at a
reasonable time and place. And the court may order the
proponent to produce them in court.
a. Can use summaries if the contents are too large
b. Summary must be sponsored by a witness who testifies
to the summary’s accuracy
c. Underlying documents become evidence
1007: Testimony or statement of a party to prove content
1. The proponent may prove the content of a writing, recording,
or photograph by the testimony, deposition, or written
statement of the party against whom the evidence is offered.
The proponent need not account for the original.
1008: Functions of court and jury
1. Ordinarily, the court determines whether the proponent has
fulfilled the factual conditions for admitting other evidence of
the content of a writing, recording, or photograph under Rule
1004 or 1005. But in a jury trial, the jury determines — in
accordance with Rule 104(b) — any issue about whether:
a. an asserted writing, recording, or photograph ever
existed
b. another one produced at the trial or hearing is the
original; or
c. other evidence of content accurately reflects the
content.
Requirements:
1. Original document
2. Prove terms of writing
3. Excuse
a. Doesn’t apply if original is unavailable because it is
destroyed, in possession of a 3rd party, or can’t be
conveniently obtained AND
b. Unavailability is not due to serious fault of the
proponent
i. “Bad faith”
c. Valid excuses for non-production:
i. Loss or destruction (1004(1))
ii. Inconvenience (some courts)
iii. Possession by third person (1004(2))
iv. Original in opponent’s possession (1004(3))
1. Must show that original is in hands of or
under control of adversary, and
proponent has notified him to produce it
at the trial, and adversary failed to do so
v. Public records (1005)
x. Rationale:
1. Make sure that exact terms of writing are brought before trier
of fact
2. Prevent distortion, fraud, etc.
IX.
Lay opinions & expert testimony
a. 701: Opinions by lay witnesses
i. If a witness is not testifying as an expert, testimony in the form of an
opinion is limited to one that is:
1. rationally based on the witness’s perception;
a. basically requiring first-hand knowledge
2. helpful to clearly understanding the witness’s testimony or to
determining a fact in issue; and
a. allow witness opinions if they will be helpful
3. not based on scientific, technical, or other specialized
knowledge within the scope of Rule 702.
ii. Requirements:
1. Based on rationally based perception
a. Look for word “seemed”
2. Helpful to understanding testimony or fact in issue
3. Not based on scientific or special 702 knowledge
b. 702: Testimony by expert witnesses
i. A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an
opinion or otherwise if:
1. the expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to under- stand the
evidence or to determine a fact in issue;
2. the testimony is based on sufficient facts or data;
3. the testimony is the product of reliable principles and
methods; and
4. the expert has reliably applied the principles and methods to
the facts of the case.
ii. Five requirements:
1. Scientific, technical, or other specialized knowledge will assist
trier of fact to understand evidence or determine a fact in issue
2. Witness must be qualified as expert by knowledge, skill,
experience training or education
a. Does not necessarily have to be both education and
experience, can be one or the other
3. Sufficient facts or data
a. Keeps out unreliable testimony
4. Reliable principles or methods
a. Applies to non-scientific testimony too
5. Applied the principles and methods reliably
iii. Judge has a lot of discretion about whether to treat a witness as an
expert
iv. Daubert v. Merrell Dow
1. Court must determine validity of 2 separate aspects of
evidence:
a. Scientific method
b. Application of that method to factual inquiry in
consideration
2. Experimental or scientific testimony need to be based on
principle that supported was the testimony purported to show
3. Required consistent results from repeated applications of the
principle (including any but not necessarily all of the
following)
a. Can it be tested and if it can be tested, has that testing
taken place
b. Has it been described in scientific publications subject
to peer review
c. Known or potential error rates
d. Standards that control its operation, where they used
e. Degree of acceptance in relevant community
4. Judge must act as the gatekeeper asking 3 questions
a. 1. Sufficiency of underlying data
b. 2. Reliability of methods
c. 3. Application of those methods
c. 703: Bases of expert’s opinion testimony
i. An expert may base an opinion on facts or data in the case that the
expert has been made aware of or personally observed. If experts in
the particular field would reasonably rely on those kinds of facts or
data in forming an opinion on the subject, they need not be admissible
for the opinion to be admitted. But if the facts or data would
otherwise be inadmissible, the proponent of the opinion may disclose
them to the jury only if their probative value in helping the jury
evaluate the opinion substantially outweighs their prejudicial effect.
ii. How experts learn about case:
1. Personal knowledge
2. Observation of prior evidence
a. Can listen to witnesses who testify before them
3. Hypothetical questions
a. Can draw conclusions based on factual assumptions
4. Otherwise inadmissible evidence
a. Experts can base opinion on clearly inadmissible
hearsay, if the type of hearsay is one that would
reasonably be relied upon by experts in that situation
d. 704: Opinion on ultimate issue
i. In General — Not Automatically Objectionable. An opinion is not
objectionable just because it embraces an ultimate issue.
1. This includes both lay witnesses and expert witnesses
ii. Exception. In a criminal case, an expert witness must not state an
opinion about whether the defendant did or did not have a mental
state or condition that constitutes an element of the crime charged or
of a defense. Those matters are for the trier of fact alone.
1. Cannot say how the case should be decided
2. Cannot express opinions on questions of law
3. Cannot use legal terms or criteria
iii. Can state opinion in any way including opinion on ultimate issue
iv. Basis of testimony does not have to be disclosed
1. Must disclose on cross if asked about it
e. 705: Disclosing facts or data underlying expert’s opinion
i. Unless the court orders otherwise, an expert may state an opinion —
and give the reasons for it — without first testifying to the underlying
facts or data. But the expert may be required to disclose those facts or
data on cross-examination.
f. 706: Court-appointed expert witness
i. Appointment Process. On a party’s motion or on its own, the court
may order the parties to show cause why expert witnesses should not
be appointed and may ask the parties to submit nominations. The
court may appoint any expert that the parties agree on and any of its
own choosing. But the court may only appoint someone who consents
to act.
ii. Expert’s Role. The court must inform the expert of the expert’s
duties. The court may do so in writing and have a copy filed with the
clerk or may do so orally at a conference in which the parties have an
opportunity to participate. The expert:
1. must advise the parties of any findings the expert makes;
2. may be deposed by any party;
3. may be called to testify by the court or any party; and
4. may be cross-examined by any party, including the party that
called the expert.
iii. Compensation. The expert is entitled to a reasonable compensation,
as set by the court. The compensation is payable as follows:
1. in a criminal case or in a civil case involving just compensation
under the Fifth Amendment, from any funds that are provided
by law; and
2. in any other civil case, by the parties in the proportion and at
the time that the court direct — and the compensation is then
charged like other costs.
iv. Disclosing the Appointment to the Jury. The court may authorize
disclosure to the jury that the court appointed the expert.
v. Parties’ Choice of Their Own Experts. This rule does not limit a
party in calling its own experts.
X.
Privileges
a. 501: Privilege = right of an individual not to disclose information about a
particular event
i. Applies to the person whose interest or relationship is intended to be
fostered by the privilege  this is the only person who can assert it
ii. Federal courts use their own judgment in determining if privilege
applies
b. Rationale:
i. Encouragement of professional advisory relationships
ii. Maintenance f certain zones of privacy
c. Categories of privileges:
i. Zone of privacy privileges
1. Self-incrimination
a. Constitutionally mandated privilege under 5th
amendment
2. Spousal privilege
a. Information between spouses is privileged when one of
the spouses testifies
b. Either spouse can invoke privilege
c. Requirements:
i. Must be married when communication was
made
ii. Can still claim privilege after marriage ends to
cover information that occurred during marriage
iii. Topic must have some relationship to marriage
1. Easy to meet
d. Exceptions:
i. When spouses are litigating against each other
ii. Criminal proceedings about family wrongdoing
1. Assault, abuse, etc.
ii. Institutional privilege
1. Government secrets
a. Informants have privilege
b. State secrets and executive communications
i. Protect national security
ii. Executive privilege
iii. Professional counseling privileges
1. Attorney-client privilege (502)
a. Right not to disclose (or have your lawyer disclose any
confidential communication between the two of them
relating to the professional relationship
b. Only confidential communications are protected by the
privilege
i. But this doesn’t have to be explicitly stated by
the client
c. Client to lawyer:
i. Oral or written communication is privileged
ii. Non-verbal communication  can still be
privileged
iii. Things that are observations a third party could
have made are not protected (like if a lawyer
sees stab wounds that are in public or
something)
d. Lawyer to client:
i. Includes representatives of the lawyer (like a
secretary), if they are assisting the lawyer
ii. Tangible evidence or documents received from
the client must still be disclosed if they would
have otherwise been required to disclose them
e. Privilege can be waived
i. Inadvertent disclosure doesn’t count as waiving
privilege
ii. If client reveals information
iii. If a third-person is present, communication is
not privileged
f. Lawyers cannot assist when there is ongoing fraud or
committing future crime
g. Cannot conceal evidence or destroy evidence
h. Claiming privilege:
i. Can be in all parts of the trial process including
discovery
ii. Can be claimed by client, lawyer, or others who
represent the client
iii. Corporations  must be current lawyer and the
lawyer with who the communication was made,
or by other
iv. Can be claimed after death by decedent’s
executor or representative
i. Work product privilege
i. Material attorneys possess in connection with
their representation of clients
ii. Not covered if opposing counsel has strong need
for it
iii. Attorney’s own thoughts are completely
protected
2. Physician-patient privilege
a. Exception:
i. When physical condition is part of the dispute
ii. Criminal cases
3. Clergyman-penitent privilege
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