EVIDENCE
FALL 2018
Shepherd
Chapter 1  Evidence Law and The System
A. Why Rules of Evidence?
Why Law of Evidence?
1. Mistrust of Juries – hearsay doctrine exists largely because we believe that a lay jury (an amateur factfinder) cannot
do a good job in evaluating statements made outside its presence.
2. Serve substantive policies relating to the matter in the suit – rules that set and allocate burdens of persuasion; who
wins.
3. Further substantive policies unrelated to the matter in the suit – extrinsic substantive policies; privileges.
4. Ensure accurate factfinding – authenticate evidence (lay a foundation) before the evidence is put in.
5. Waste of Resources – make sure trials don’t go on too long and waste too much time, evidence rules are sort of
designed to save time.
1.
2.
3.
What Happens at Trial?
Jury Selection (if jury trial; could just be a bench trial)
a. Voir Dire – in which court and counsel try to find out whether any members of the panel should not serve.
b. In jury trial  judge decides the law and evidentiary issues; jury decides facts
Opening Statement
a. Gives each side its first opportunity to set before the jury the story that ensuing proof will tell.
b. The lawyer presents an overview that will help the jury understand what is to come, as the actual
evidence is usually fragmented and disjointed.
c. Generally, P goes first, then D. – each describing what they expect the evidence will show.
d. P usually begins in civil suit, then D; (D may disprove P by affirmative defenses).
e. Prosecutor begins in criminal case, then the accused.
Presentation of Proof
a. Each party presents their “case-in-chief”
i. Here, each party calls every witness on whom he depends, building his case by testimony
elicited on “direct examination” and also introduces tangible evidence, such as the defective
instrument that caused the accident, or the contract sued on, or medical records, or models and
photographs of the accident scene.
1. After direct examination of each witness is completed, the opponent gets a turn to ask
questions – “cross examination”
a. When cross-examination is finished, the calling party may engage in
“redirect” examination, and then the adversary may again cross-examine
(now “recross-examination”).
b. After both have put on their “cases-in-chief,” the party who opened has another chance – to present their
“case-in-rebuttal”
c. Summary of Order of Proof (generally):
i. Plaintiff (or prosecutor presents his case-in-chief, then rests;
ii. Defendant presents his case-in-chief, then rests;
iii. Plaintiff (or prosecutor) presents his case-in-rebuttal;
iv. Defendant presents his case-in-rebuttal (sometimes called his “case-in-rejoinder”);
v. Each side presents further cases-in-rebuttal (also sometimes called cases-in-rejoinder).
d. Summary of the order of examination (generally):
i. Direct examination by the calling party;
ii. Cross-examination by the adverse party;
iii. Redirect examination by the calling party;
iv. Recross by the adverse party;
v. Further redirect and re-cross as may be necessary.
4.
Trial Motions
a. Motion in Limine – pretrial motion; anticipate what adversary will probable do
i. Allowed more elaborate argument than in front of a jury
ii. 103(a) if judge makes definitive ruling on pretrial motion, it doesn’t need to be renewed during
trial for appeal
5. Closing Argument
a. Reaffirms opening and also what the evidence did not show.
6. Instructions
a. Judge instructs the jury on the law
b. Proposed jury instructions submitted to judge, then judge decides which instructions to deliver.
7. Deliberations
a. Secret!
8. The Verdict
a. Judge enters the verdict.
9. Judgment and Post-Trial Motions
a. Judgment not withstanding – we lost, but we make a motion to reverse that, or a motion to make a new
trial. Can appeal if judge denies those motions.
10. Appellate Review
a. 103 – only going to be a reversal if there is a substantial mistake (mistake by the trial judge probably
affected the result)
b. Error – reviewing court only awards relief when error “probably affected” the result
c. Show: (1) error must have affected a substantial right + (2) assurance that error made such an affect
d. Reversible Error – mistake affected judgment, verdict of trial court can be reversed because it is so
important and appellant took steps during trial to preserve rights (object)
e. Harmless Error – error that did not affect the judgment
f. Plain Error – the kind of mistakes that warrant relief on appeal, in the estimation of the reviewing court
How Evidence is Admitted Or Excluded
Getting Evidence In: Foundation and Offer

Testimonial Proof – Direct Examination
o Generally, each party presents witnesses’ evidence/testimony by direct examination  party offering the
testimony

Witness will take the oath.

Includes preliminary information to prove the witness really knows what they are talking about
 background information (name and address, occupation, etc.).

Each party “lays the foundation” (prima facie case) for testimony that follows by asking
questions that show that the witness has “personal knowledge” of the matters to which he/she
will speak about.

Lawyer asks substantive questions – getting at the witness’ knowledge of pertinent facts.
o Form of Questioning – 611(c) – Generally, the lawyer cannot ask leading questions on direct examination [a
question that suggests an answer]

Testimonial Proof – Cross-Examination
o With each witness, direct examination can be followed by cross-examination by the adverse party.

CE seeks to limit or bring out inconsistencies in the direct.
o Here, the attorney is encouraged to use leading questions – getting witness to admit and agree to stuff
that will be good for cross examining attorney’s clients – 611(b)
o 611(b) Scope of Direct Rule – Cross should be limited to the subject matter of the direct AND matters
affecting the credibility of the witness.
o What can the cross-examining defense attorney ask about?

Scope of direct: the cross examining is limited to matters explored on direct examination.

“Points raised on direct test”  must address same points

“Transaction Described Test” – if there is testimony about some transaction then that
is the appropriate subject matter of cross examination.

Real Evidence – refers to tangible things directly involved in the transactions or events in litigation; objects that are
part of the underlying facts of the case
o Almost all evidence is through a witness, usually need a witness to get the gun into evidence.
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o
i.e., murder weapon, defective steering assemble involved in the accident, the weapon used in the
homicide or armed robbery, the wound or injury suffered by the claimant, the written embodiment of the
terms of the agreement
o Proponent’s task in getting them admitted is to “lay the foundation”  “authenticating” the evidence 
information produced that must show evidence is what proponents says it is.

Demonstrative Evidence – tangible proof that in some way makes graphic the point to be proved
o Created for illustrative purposes and for use at trial and it played no role in the events or transactions
which gave rise to the lawsuit
o i.e., a map to demonstrate where the parties were that were involved in the crime, diagrams,
photographs, models
Keeping Evidence Out

The Objection  FRE 103(a)(1)
o Reasons to require objections  (1) helps the trial court/judge & (2) allows the adversary (the offering
party) to cure/fix the problem in his proof
o Requirements: (1) The objection must be timely [103(a)(1)(A) – must be raised at the earliest reasonable
opportunity & (2) The objection should include a statement of the underlying reason (“ground”)
[103(a)(1)(B)] – a detailed/specific reason for the objection.
o 2 kinds – the specific grounds that support an objection may be:

Substantive  objections that are based on the nature of the evidence itself; rest on particular
exclusionary principles of the Rules of Evidence

Hearsay Doctrine, Attorney-Client Privilege and Martial Confidence Privilege, Rules
governing Character Evidence and “Subsequent Remedial Measures”

Formal  focus on the manner/form of question; the adversary is free to change around the
way the question is asked.
o IF you want to preserve your right to appeal  you have to object right away!
o Can obtain a ruling in advance  motion in limine  anticipating what the adversary will probably do --motion before trial to get a ruling then by judge that evidence cannot be introduced.
The Offer of Proof  103(a)(2)

Counterpart to the objection.

If objection is sustained to exclude evidence, you must make an offer of proof to preserve the right to appeal.
o Must make it known to court what would have been presented if objection overruled.
Judicial “Mini-Hearings”

104(a) says the judge determines “preliminary" questions – witness competency, privilege, and admissibility of
evidence.

104(b) says it is different when relevancy turns on whether some “fact” exists.
o Jury decides preliminary questions of fact.
o Here, the judge merely screens the evidence: When different answers are possible, the jury decides
whether the factual condition is satisfied.

Categories where judge decides on their own and then there’s categories where the judge shares the decision with
the jury.
o EX: Who decides whether certain cross examination is outside the scope of direct? Judge.
o Issue is whether the gun is the actual murder weapon (gun is irrelevant if it is not the murder
weapon)(only admissible if it is actually the murder weapon)  Second category 104(b) issue – the
decision would be shared by the judge AND the jury.
Consequences of Evidential Error
 103  only going to be a reversal if there is a substantial mistake (mistake by the trial judge that probably affected the
result/outcome of the trial)
o Reversible Error  a mistake that probably DID affect the judgment.
o Harmless Error  a mistake that probably did NOT affect the judgment.
o Plain Error  the kind of mistakes that warrant relief, in the estimation of the reviewing court, even
though appellant failed to take the steps to perverse its rights (objecting or making an offer of proof).
(2)  Authentication
 Authentication = Laying a Foundation  Process by which you show exhibits and other forms of evidence are really
what they appear to be; create a prima facie case that the thing appears to be what it is.
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 901(a)  general standard for authentication  “sufficient to support a finding that the item is what the proponent
claims it is.”
o TEST  Evidence that a reasonable jury could find what is claimed if the find the evidence is true.
 901(b)  Ways to Authenticate  what kind of information you provide to the court to make prima facie case [not an
exclusive list]
 What don’t you need to authenticate?
o Someone testifying on the stand  602 – what you have to do before you have somebody testify
(personal knowledge)
 The parties can agree in advance that a piece of evidence is true or what it purports to be (aka stipulate)
 Chain of Custody Testimony from each chain in the link
o EX: Cocaine is confiscated

Must have evidence that a reasonable juror can find that the bag of evidence is the SAME bag
that was confiscated.
 Would have testimony from each officer with custody (must show there was no
mistake).
 Writings
o How do you show a letter is from or to someone claimed?
 Examples:
o Authenticate land sale contract from more than 20 years ago that was in the local county public records
office?

901(b)(7)

901(b)(8)  presumption that documents that are more than 20 years old are authentic.
(3)  Relevance: Logical and Pragmatic
Pragmatic Relevance
 401  Test for Relevant Evidence  any tendency to make the existence of any facts that is of consequence to the
determination of the action more or less probable than it would be without the evidence.
o 2-Part Test:

(1) Evidence must be material = speaks to a critical issue in the case

(2) Evidence must be relevant = evidence tends to prove some fact; more or less probable
 402  irrelevant evidence is not admissible.
 403  Although relevant, evidence may be excluded if its probative value is substantially outweighed by a danger of
one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time,
or needlessly presenting cumulative evidence.
o Lets the judge exclude relevant evidence on account of any danger  unfair prejudice, confusion of the
issues, misleading the jury.
o Other considerations  undue delay, waste of time, needless presentation of cumulative evidence.
 Balancing test  weighs probative value of evidence against the dangers or other considerations.
o What if there is an equal amount of probative value and prejudice?  Evidence is admitted; presumption
of admission.
 Direct Evidence  evidence which if believed proves the fact for which offered.
 Circumstantial Evidence  evidence which even if believed, does not necessarily prove the fact for which offered.
 Law makes no distinction between direct and circumstantial evidence.
 4 inferences from flight and ways to argue against it:
o (1) Behavior to Flight
o (2) Flight to Consciousness of Guilt
o (3) From Consciousness of Guilt to Consciousness of Guilt of Crime Charged
o (4) Consciousness of Guilt of Crime Charged to Actual Guilt
 Deductive Reasoning  one thing necessarily leads to another
 Inductive Reasoning  uses circumstantial evidence/educated guesses to reach a conclusion
Limiting Instruction
 105 – Someone objects to the admission of some part of evidence… so then what is the judge supposed to do if there
is some good reason for evidence to be admitted and it suffers some defect?
o Judge can: (1) Exclude the whole thing under 403; or (2) Admit the evidence with limiting instruction (how
the jury should consider it).
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 411 – an application of 403 in a certain circumstance  Evidence of insurance is NOT admissible to prove whether the
person acted negligently or otherwise wrongfully.
Completeness Rule
 106  If a party introduces all or part of a written statement, an adverse party may require remainder/any part of
related written statement “if ought in fairness to be considered at the same time” if other party already offered.
 Applies only to written evidence/statements or recorded, not oral testimony.
 Writing or Recorded Statements  Judge can: (1) Exclude under 403
Statistical & Mathematical Evidence
 Probabilities 
o Standard of Proof 

Preponderance of the Evidence  A little bit over 50% (civil)

Beyond a Reasonable Doubt  Jurors have to consider (even subconsciously) some percentage
 Product Rule  probability of the joint occurrence of a number of mutually independent events – can just multiply
them together to find out what the odds are that the individual has both the characteristics (can be used for more
than just 2 possibilities)
(4)  Relevance: Character Evidence
Character Evidence
 General Rule under 404  cannot be used for the predisposition argument; because someone has a character for
being a certain way, therefore, they acted in that way later on.
 404(a)(1)  Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion
the person acted in accordance with the character or trait. (generally, cannot use character evidence, however,
there are exceptions to this general rule)
o LET’S SAY: one of the exceptions fits and character evidence is allowed, what kinds of character evidence
can we use? [405]

(1) Specific Acts

(2) Opinion Evidence

(3) Reputation Evidence
404(a)(2)  Exceptions for a Defendant or Victim in a Criminal Case
 404(a)(2)  the following exceptions apply in a criminal case:
o 404(a)(2)(A)  D may offer evidence of the D’s pertinent trait, and if the evidence is admitted, the
prosecutor may offer evidence to rebut it (only by opinion or reputation, NOT specific acts).
o 404(a)(2)(B)  A D may offer evidence of an alleged victim’s pertinent trait, and if that evidence is
admitted, the prosecutor may: (1) offer evidence to rebut it; and (b) offer evidence of the D’s same trait
o 404(a)(2)(C)  in a homicide case, the prosecutor may offer evidence of the alleged victim’s trait of
peacefulness to rebut evidence that the victim was the first aggressor.
 What can the prosecutor do if the D opens the door by testifying about the V’s character or Defendant’s own
character?
o Prosecutor is allowed to have their own character witness to testify to rebut
 Usually the prosecutor cannot offer character evidence about the V unless the D opens that door… but there is an
exception:
o 404(a)(C)  in a homicide case, the prosecutor may offer evidence of the alleged V’s trait of peacefulness
to rebut evidence that the V was the first aggressor.
o When the victim is dead (AKA homicide prosecution, the prosecutor is allowed to, right off the bat, bring
in testimony that the V is a peaceful person who would have never attacked anyone (aka don’t need door
opening by the D).
 What about evidence that the V threatened the D?
o D is allowed to put in evidence about the V’s character, but they CANNOT put in specific act evidence.
o If D’s attorney is trying to show V is violent based on the fact that they threatened D “I’m going to kill
you!”  that is a specific act (aka not admissible under 405), but it can come in another way  under
404(b)(2) to show intent, not that they have a bad character for violence, just that they intended to
assault or kill someone.
404(b)  Crimes, Wrongs, or Other Acts (civil cases)
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 404(b)(1)  Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show
that on a particular occasion the person acted in accordance with the character.
404(b)(2)  Permitted Uses
 404(b)(2)  The evidence may be admissible for another purpose, such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or lack of accident.
o Character evidence can come in – not for propensity argument, but for other reasons.
o Modus Operandi  if perpetrator’s identity is in doubt, proof of D’s prior crime so similar may help
identify. Zoro when he does stuff, slashes curtains, including when he robs banks, and here the guy
slashed the curtain while robbing the bank. (specific ways of robbing bank) therefore must be the same
person.
o Reverse Modus Operandi
Methods of Proving Character
 405  What kinds of character evidence can be admitted? [3 kinds]
o 405(a)  By Reputation or Opinion  When evidence of a person’s character or character trait is
admissible, it may be proved by testimony about the person’s reputation or by testimony in the form of an
opinion.

On cross-examination of the character witness, the court may allow an inquiry into relevant
specific instances of the person’s conduct  using specific instances to show that the witness
cannot be trusted and does not know what they are talking about (impeach the witness)
o 405(b)  When a person’s character or character trait is an essential element of a charge, claim, or
defense, the character or trait may also be proved by relevant specific instances (acts) of the person’s
conduct.
o EX: Evidence that D had been seen in the store stealing other things before  404(a), you can’t put in
evidence to show previous disposition (specific acts/instances)
o Reputation that the D is a shoplifter?  this is not an element of the claim for being convicted of
shoplifting (405(b) is inapplicable because reputation is not an essential element of the crime); 404(a)
reputation evidence only if P is rebutting.
o Opinion evidence --- what kind of foundation would be necessary?  Person testifying must have
personal knowledge – have to have witness testify that they know the D and have hung with the D enough
to know that they are, for example, peaceful or violent.
o Reputation evidence --- what kind of foundation would be necessary?  do not have to show that the
witness personally knows the D, but do have to show that W lived in community for long time and talked
with many people
 405(b) – in civil cases – common situations in which character is an ultimate issue
o Negligent Entrustment
o Child Custody
o Wrongful Death
(5)  Relevance: Habit and Routine
Habit
 406  Evidence of a person’s habit or an organization’s routine practice may be admitted to prove that on a
particular occasion the person or organization acted in accordance with the habit or routine practice.
o If a person has a certain habit, that evidence is allowed to come in to show that a person has a certain
habit.
 While evidence of character is generally inadmissible to prove conduct under 404, evidence of habit is generally
admissible to prove conduct under 406.
 Habit v. Character
o Forbidden character  general, non-specific, tendency, volitional
o Habit of individual  nonvolitional, involuntary, specific reflex reaction

Consider 
 Specific  the more specific the behavior, the better chance of being a habit.
 Regularity  the more regular the behavior, the more likely to be a habit.
 Automatic  conduct is more likely to indicate habit where it represents semiautomatic or unreflective behavior.
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(6)  Relevance: Remedial Measures
Remedial Measures
 407  remedial measures are generally inadmissible when offered to prove that the person in question was
somehow at fault.
 After harm occurs, later D fixes something that if it was done before harm, it would have made the injury or harm less
likely to occur (not admissible to prove liability – negligence, culpable conduct, a defect in a product, a defect in a
product’s design, or a need for a warning or instruction).
 EXCEPTION  407 does not bar evidence of subsequent remedial measures when offered to prove “ownership,”
“control,” or “feasibility of precautionary measures, if controverted” or for impeachment.
o Ownership or control  evidence of subsequent remedial measures may be introduced to establish the
D’s ownership or control of the premises or instrumentality causing the injury.
o Feasibility of preventative measures 
o Impeachment 
(7)  Relevance: Settlement
Settlement Discussions
 408  bars proof of civil settlements, offers to settle, and conduct or statements made during settlement
negotiations, when offered to prove or disprove the “validity or amount” of a disputed claim.
 408(b)  Exceptions:
o The court may admit this evidence for another purpose, such as proving a witness’s bias or prejudice,
negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or
prosecution.
Plea Bargains
 410(4)  renders any statement made in the course of plea discussions with the prosecutor inadmissible against the
D in any civil or criminal proceeding, at least where those discussions fail to produce agreement or lead to pleas
later withdrawn  AKA, excludes plea bargaining statements by the accused.
 Discussions leading up to plea are inadmissible; but if you just plead guilty, that is admissible.
 401 does not exclude guilty pleas entered on the basis of plea bargains (it only excludes guilty pleas “later
withdrawn”), nor does it exclude plea bargaining statements that lead to guilty pleas (it only excludes plea
bargaining statements if no agreement was reached or a plea was entered but later withdrawn).
 Nolo Contendre Plea – kind of like a guilty plea – you don’t plead guilty, you plead no contest  nolo plea cannot be
admitted in a later receiving.
(8)  Relevance: Proof of Payment and Insurance
Payment of Medical Expenses
 409  proof of payment of medical expenses is inadmissible.
 Evidence of furnishing or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury
are not admissible to prove liability for the injury.
Insurance
 411  Introducing evidence of insurance is inadmissible
o Don’t want to create bias in a trial
o Cannot be admitted to show someone acted negligently or wrongfully
 HOWEVER, the court may admit this evidence for another purpose, such as proving a witness’s bias or prejudice, or
proving agency, ownership, or control.
o Bias Example: Investigator hired by insurance company and comes to the conclusion that D was at fault.
Admissible? YES, because it can be used to show BIAS of witness because he is hired by insurance
company.
o Ownership Example: Accident and D claims that the car is not his. Is insurance admissible to show that he
owns the car? YES – not using to show insurance coverage to prove liability, but to show ownership of car.
o EX: investigator is hired by insurance company and comes to the conclusion that D was at fault. Is his
testimony admissible? Insurance coverage is admissible here because it can be used to show bias of
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o
witness because he is hired by insurance company (bad by insurance company because it opens the door
about info on insurance).
EX: car accident, D is insured. Insured’s lawyer puts on an investigator (the insurance company’s employee
who said “D is not guilty.” Is P’s lawyer allowed to put in evidence that D has liability insurance? YES
because you aren’t putting it in to show that D acted negligently or wrongfully, he is testifying for his boss
to get him off the hook so he doesn’t have to pay the claim.
(9)  Hearsay
 801(a),(b),(c) set forth the definition of hearsay that we’ve been using so far  (OUT OF COURT STATEMENT OFFERED TO
PROVE THE TRUTH OF THE MATTER ASSERTED)
Hearsay
 801(c)  Hearsay is (1) an out of court statement (2) offered to prove the truth of the mater asserted.
o Generally speaking, one person (the witness) is on the stand (in court), repeating what was said by
another person (the declarant) out of court.
o To constitute hearsay, the repeated statement must be offered for the truth of the matter asserted.
 What is a Statement?
o 801(a)  a person’s (1) oral assertion, or (2) written assertion, or (3) nonverbal conduct if the person
intended it as an assertion.
o Nodding or shaking the head, shrugging the shoulders in answer to a question, pointing as a means of
identifying or selecting.
 Machines & Animals 
o General idea: Under 801(a), a statement is something uttered by a “person” so nothing “said” by a
machine or animal is hearsay – however, this is not always the case.
 Indirect Hearsay – ask somebody “well where were you born?” and they say “well I was born in Connecticut”  How
do they know where they were born? They are repeating what they heard from somebody else, so technically
hearsay.
 U.S. v. Check 
o Detective was trying to find out about the bad conduct of a dishonest police officer and D hires informant,
and informant sets up a drug deal with the dishonest PO.
o Trial, when prosecuting PO, informant doesn’t show up. D would be on the stand giving out of court
statements of informant which would be hearsay!
o P tried to do: put Detective on stand, and didn’t have D testify about what informant said to D (would be
hearsay), instead D testified about the D’s reaction to what informant said.
o Need to identify the levels of hearsay that exist? 3 in this case.

(1) Detective on stand is testifying about what the detective said in reaction to what the
informant said = hearsay = out of court statement describing detective’s out of court statement
being offered to prove the truth of the matter asserted (the informant said BLAH, and the out of
court statement is being offered to prove BLAH).

(2) Detective  about the informant  what the detective said out of court about what the
informant said out of court.

(3) Informant describing what the informant and police officer talked about out of court.
 EX: issue = value of Mona Lisa Painting; famous art expert has examined and has given an opinion on the value.
o I can’t repeat what the expert told me about what the value is (that’s hearsay), so I’m just going to tell my
reaction to what the expert said “$1.4 million, that’s way too crazy! That’s just way too much” (this is 2
levels of hearsay)

How many levels of hearsay? 2 levels
 Me describing what I said out of court (my reaction).
 Me describing what art expert said.
 Machines and Animals
o EX: Apple Watch  Looked at watch and it said “15 minutes till 3” and the issue in the trial was “what
time did I drop my marker in class”; and I wanted to testify that I looked down at my watch and it said “15
minutes till 3”  Hearsay? Well it’s an out of court statement by the clock (apple watch)  not hearsay
because look at definition of hearsay --- A PERSON’S oral statement… a person making the statement (all
about the person) a clock is not a person that cannot make an out of court statement.
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o
But didn’t a person set and create the clock? Viewing what the clock says right now as an indirect
assertion by a person that it is 15 minutes till 3, BUT courts won’t look at it this way. Apple watch is not a
person.
o Foundation to get to testify that when I looked at my watch it was 15 minutes till 3? Wouldn’t need to
overcome a hearsay objection, clock is not a person, instead would have to present evidence that my
apple watch was a reliable watch (laying a foundation for a tape recording/conversation)  someone
testifying “yeah this is reliable…”
o A SUPER complicated machine (not a watch or clock)… but some really complicated computer machine
that has been set up by a special computer person. The machine works like a house alarm with sensors.

I get home and my guitar is stolen, so I check the computer and the computer says “George, the
thief was your mom.” The computer has indicated that mother is thief. So in prosecution, if I
want to report what the computer said, is that hearsay? Some courts would say hearsay
because it is an indirect statement by computer guy that it was mom who stole the guitar. The
computer is like a mouth piece for the guy who set up the computer.
o Dog security at airport following me around and alerting the police about my bag, and they open it and
there’s illegal drugs in my bag.

At my trial for drug possession, they want to testify about what the animal did.
 If someone testifies about what the dog did  hearsay problem (dog alerted about my
bag) --- out of court statement.
 BUT, is it an out of court statement by a person? Well, a person trained the dog to
react in a certain way… except this is not dealt with as hearsay.
 4 Problems/Risks associated with out of court testimony (4 M’s) 
o Misperception – a witness misidentified the D/suspect.
o Faulty Memory – witness forgot that the suspect was Bob, not Tim.
o Misstatement (misunderstanding) –
o Mendacity (lying) –
 3 Testimonial Protections (preference for live testimony) 
o Cross Examination
o Demeanor Evidence of the Witness
o Oath (person out of court generally does not have to take an oath)
(10)  Hearsay: “When is a Statement Not Hearsay?”
 Best way to view 801(d) is that they are just hearsay exceptions.
o Even if something is hearsay, if it fits within one of the things in 801(d) it is nonetheless admitted.
 STRUCTURE OF EXCEPTIONS:
o First group of hearsay exceptions – 801(d)

Certain prior inconsistent statements,

Certain prior consistent statements,

Certain statements of identification,

Certain admissions by a party opponent (adversary says something)
 ON A TEST, IF GEORGE ASKS whether something is hearsay and if it fits the
definition of hearsay, but it nonetheless fits one of the exceptions in 801(d),
AND GEORGE’S QUESTION IS: “IS THIS STATEMENT HEARSAY?” THE ANSWER
WOULD BE: YES, THIS IS HEARSAY, BUT IT IS NONETHELESS ADMITTED
BECAUSE OF A HEARSAY EXCEPTION.
 Second group of hearsay exceptions – 803
 Third group of hearsay exceptions – 804
 Under 801, a statement is hearsay when “offered to prove the truth of the matter asserted.”
 Below are categories for which if you are trying to get evidence admitted, these might be ways to get some evidence
admitted even though they might seem like hearsay.
 2 ways: TWO STEP ANALYSIS
o (1) Argue that it is not hearsay in the first place.
o (2) Even if it is hearsay, does it fit some exception?
9

Say it fits an exception… does it nonetheless get admitted because it fits within a hearsay
exception?
 NO! [rules against character evidence, 403 balancing, evidence that there is insurance
in an accident, etc.]
 801(d)  Statements That Are Not Hearsay [(1)]
o 6 nonhearsay categories:

(1) Impeachment
 Provide evidence that witness earlier said the opposite out of court.
 Prior Inconsistent Statements, not for the truth of the matter asserted, but for
impeachment, are generally not viewed as hearsay and are admissible.
 Can’t be used for the truth of the matter asserted, but to prove that the Witness’s prior
statement or this statement should not be relied upon.
 Problem 3-C.  “The Blue Car Ran a Red Light”
o Whether the light at an intersection was green.
o Witness for P testifies that the light for the P was green
o Defense wants to cross-examine that witness and provide evidence that the W
earlier said that the light was red.

Can the out of court statement by the witness come in? Well it is
hearsay.

If you are trying to offer evidence that the W previously said it was
red – “I’m not offering the statement to prove that the light was
red, I’m offering it to prove that it is different from what they said
earlier. I’m offering to impeach – show that they said something
different compared to what they said now.”

If you are offering a prior inconsistent statement, not for the truth
of the matter asserted, but to show that W said something
different before compared to now  impeachment, it is ok.

(2) Verbal Acts (or Part of Acts)
 Statements that have independent legal significance
o How to tell if independent legal significance?  just by the words being
uttered, does it change the legal meaning? If they do, not hearsay.
o Does it matter whether the statement is true or false?
o Has to have independent legal significance in the proceeding that is NOW
before the court.
 Verbal Acts in Criminal Cases
o Problem 3-D.  “Any Way You Like”

Prosecution for prostitution: Witness on stand indicates that
Defendant said “I will have sex with you for money.”

Defense counsel stands up and says “Hearsay!”

How do you Rule on that?

NOT Hearsay: (1) Out of Court Statement? YES …BUT (2)
Is it offered to prove the truth of the matter asserted?
NO  it doesn’t matter if the statement is true or false,
instead the statement is just offered by the prosecutor
to show that the statement was made. (so it is not an
out of court statement offered to be prove the truth of
the matter asserted)

Idea is that it has independent legal significance. If D
actually uttered these words, then the D is guilty of
prostitution (pretends these are the elements necessary
for being guilty) – it doesn’t matter if it is true of false,
all that matters is that the Defendant said the words.

Therefore, it doesn’t fit #2 requirement --- aka not
hearsay.

Verbal act – just describing somebody doing something.
 Verbal Acts in Civil Cases
o Problem 3-E.  Whose Corn?
10





K for use of farm land and the tenant agrees to give owner of the
land 40% of the crop. Tenant after the harvest has the landlord
over and points to a container of grain and makes a comment
“this is your 40%”

Tenant then goes bankrupt, bank forecloses on the grain tenant
has including grain in bin, landlord sues for grain in the bin.

Bank says that is our grain because it belonged to the tenant.

At trial, testimony from landlord about what the tenant said (this
is your 40%, pointing to the bin) --- is this statement hearsay? The
answer would be no, because the statement that the tenant made
has independent legal significance.

His statement transfers ownership to the landlord, so from then
on, the grain becomes the grain of landlord. So, it doesn’t matter
if the tenant was lying or not. The title to the grain transfers so all
that matters is that the statement was made. Just by uttering that
statement, it had independent legal significance, and grain
transferred ownership from tenant to landlord. Words constituted
a verbal act.

It would be an out of court statement, but not offered for the
truth of the matter asserted.
(3) Effect on the Listener or Reader
 Problem 3-F.  “I’m from the Gas Company”
o Crane company employee sues Interstate gas on a negligence theory, and
Interstate raises contributory negligence as a defense, arguing that Crane
employee should not have gone so close to what he knew or suspected to
be a gas leak.

Issue --- whether the guy in uniform is really from the gas
company?

Crane company employee wants to offer testimony that
Forrest said “I’m Joe Forrest from Interstate Gas” to
show that Forrest was an agent of Interstate gas 
hearsay --- out of court statement, offered to prove the
truth of the matter asserted (offered to prove that
Forrest is from the gas company). Unless there is an
exception, it would not be admitted.

Crane company employee wants to offer testimony that his
behavior was reasonable  not hearsay; the reason he went near
the scene is because he (reasonably) believed Forrest and could
follow him to the leak because he is an expert with him. (under
this use of the statement, not hearsay  not to prove the truth of
the matter asserted, but to prove he is reasonable based off the
statement just being made) (statement has independent legal
significance, just because statement was made, eliminates P’s
contributory negligence).
(4) Verbal Markers or Objects
(5) Circumstantial Evidence of State of Mind
(6) Circumstantial Evidence of Memory or Belief
(11)  Hearsay: “Prior Statements by Testifying Witnesses,” 801, and Hearsay & Nonhearsay
Hearsay and Nonhearsay  Borderland of the Doctrine
 Statements with Performative Aspects
o Problem 3-J.  “My Husband is in Denver”

A woman falsely tells police that her husband is out of town because she knows the husband is
guilty and she wants to help him escape from being arrested.

At prosecution of husband, the prosecution offers this false statement by the woman.

Can they offer this statement? It is not hearsay, the prosecution is not offering to show the truth
of the matter asserted, they are showing the falsity of the matter asserted. She must have
11
known he was guilty; otherwise why would she need to lie. The fact that she said something
false shows she knew she was guilty.
 Betts v. Betts 
o Child custody battle  1 issue is which home will provide a better place for the child? Both parents have
remarried, and the brother died for injuries and bruises. New husband was charged, then acquitted.
o Foster parents wants to testify that the little girl said “the boyfriend killed my brother, he will kill my mom
and me too”  when offered in child custody proceeding is this hearsay?

If it is offered to show that boyfriend actually killed the brother? YES.

If adversary wants to get it in, they have to create some theory to make it so it doesn’t matter if
it is true or false, but should be admitted because it just matters if the statement was made.

Case treats fact-laden statements as nonhearsay circumstantial evidence of state of mind.
(12)  Hearsay Quiz
 HERE’S HOW HEARSAY QUESTIONS WILL BE STRUCTURED ON THE EXAM
o “IS A CERTAIN STATEMENT HEARSAY?”

IS IT AN OUT OF COURT STATEMENT OFFERED TO PROVE THE TRUTH OF THE MATTER ASSERTED?
o IF SOMETHING IS HEARSAY, “DOES IT NONETHELESS GET ADMITTED BECAUSE IT FITS WITHIN ONE OF THE
HEARSAY EXCEPTIONS?”
 But note… say we finish that analysis (^) and find that something is not hearsay  not automatically admitted --- there
are other reasons that something can be kept out:
o
Rules against character evidence;
o 403 “danger of unfair prejudice will substantially outweigh the probative value”;
o Insurance in an accident (in general, insurance is not allowed)
 But if something is hearsay, does that mean that it automatically gets excluded? No, hence hearsay exceptions.
(13)  Hearsay Exceptions
Hearsay Exceptions (second part of Hearsay Analysis)
 The Rules set out the exceptions in 5 groups:
o (1) Statements by Declarants Who Testify: 801(d)(1)

Contains 3 exceptions – all 3 apply in the special situation of testifying witnesses  they apply
to certain prior statements by declarants who testify  aka the person who made the
statement out of court is now in the court testifying.
o (2) Admissions: 801(d)(2)

5 exceptions – paving the way for statements made by opponents of the offering party.
o (3) Unrestricted Exceptions: 803

23 “unrestricted” exceptions

Doesn’t matter whether or not that the person who made the statement is in court or available
or not.
o (4) Statements by Unavailable Declarants: 804

5 exceptions  may be invoked ONLY if the declarant is “unavailable as a witness” under
804(a).

Opposite of the situation for the exceptions in 801(d)(1)
o (5) Catchall: 807
801(d)(1)  Declarant Testifying
 801(d)(1) cover some previous statements by persons who now testify and submit to cross.
o 801(d)(1)(A)  prior inconsistent statements  person made some statement on the stand, adversary
points out they said something inconsistent earlier  paves the way for substantive use of a prior
inconsistent statement by a testifying witness.

4 requirements 
 (1) Declarant (person who made the out of court statement) must be on stand now and
subject to cross-examination,
o What if a person just gets up on the stand and says “I don’t remember anything
about the prior statement.” Is that person subject to cross? As long as the
12
o
adversary attorney can make any headway with them, it counts as being
subject to cross.
 (2) Earlier statement has to be inconsistent with their present testimony,
o What if they now say “I don’t know anything about the prior statement.” Is that
inconsistent? (yes, counts as inconsistent).
 (3) Earlier statement had to be under oath,
o
 (4) Prior statement must have been made in a “trial” or “other proceeding”
(deposition; where there is a discussion between somebody and the witness and the
witness knows they are on the record). [trials, depositions, preliminary hearings, and
grand jury proceedings] (Can’t just be an affidavit that you filed)
 NOTE: The prior inconsistent statement did not have to be subject to crossexamination.
o State v. Smith  “other proceedings”

Assault victim wrote out a statement on a form supplied by a
detective (notarized – oath – someone as her attacker, but at her
trial she named another man as her attacker.

Prosecuting attorney introduced the written statement (prior
inconsistent statement) at issue for impeachment purposes
(impeaching use of prior inconsistent statement is deemed
nonhearsay), and then also tried to use the prior inconsistent
statement as substantive evidence.

If prosecutor didn’t use hearsay exception the prosecutor
probably would have no evidence that the D was guilty of the
crime. If used for impeaching – cannot be used to proof the truth
of the matter asserted (that D is guilty of the crime)

Trial court allowed her prior inconsistent statement to be used as
substantive evidence, ruling it was not hearsay under 801(d)(1)(i).

Issue: was the earlier statement made in a trial or other
proceeding? (at a police station)

Is filling out an affidavit in a police station a trial or other
proceeding? Yes it is under oath, but most courts would
say it is not a trial or other proceeding.

Washington Supreme Court affirmed trial courts ruling: V
voluntarily wrote the statement herself, swore to it under oath
with penalty of perjury before a notary, admitted at trial she had
made the statement and gave an inconsistent statement at trial
where she was subject to cross-examination  801(d)(1)(i) is
satisfied.

Case decision pushes the envelope and is an outlier.

Smith stresses that criminal charges can rest upon statements
taken at “stationhouse interviews”

Another outlier  Castro-Ayon  applied the exception to
statements given under oath at a border control station

REMEMBER: prior inconsistent statements have also come in as nonhearsay for purposes of
impeachment (which cannot be used as substantive evidence).

Here
801(d)(1)(B)  a prior consistent statement 

Requirements:
 (1) Witness has to be on stand, subject to cross-examination,
 (2) Consistent earlier statement with testimony,
 (3) (earlier consistent statement) Has to be offered to rebut a charge of recent
fabrication or improper influence or motive or to rehabilitate the witness if attacked
on some other ground.
o Someone is testifying on the stand, they say something, and the opposing
attorney says “You just made this up didn’t you!” or “there is some
improper motive/bias you have here and we shouldn’t believe you”
13
o
o If opposing attorney doesn’t say anything like that then you can’t use this
exception. Has to be challenging the witness’s statement on the stand
(attack).
o What are the earlier statement being offered to rebut?

EX: Jane is the defendant; One month ago the witness started
dating the defendant Jane, and after they start dating W says “Jill
is the murderer” and at trial W says “Jill is the murderer, therefore
Jane is not guilty and should be acquitted.” The prosecutor says
“W isn’t is true you are just saying Jill is the murderer because you
are dating the D?” (aka a charge of fabrication or improper
motive/bias). What would the defense attorney like to do? Would
like to introduce the W’s prior consistent statement (that Jill is the
murderer) – W has been saying this for a while now and says it
again.

Why would Judge say this doesn’t fit in the exception? Would say
the earlier statement doesn’t REBUT the recent charge of
fabrication because when W made the statement first they were
already dating. Bias that might exist, existed the whole time.

Before the W even knew who Jane was, said that Jill was the
murderer (THIS WOULD WORK) – the statement would be from a
time when there was no possibility of bias or improper motive.

DOESN’T have to be under oath (different than above).

Problem 4-B.  “He Thinks I’m His Wife.”
 Facts from Tome case.
 Prosecution of father for sexual abuse of daughter. Daughter told several witnesses
that dad abused her, after she moved in with mom and mom started having custody
battle with dad.
801(d)(1)(C)  Prior Statements of Identification 

Requirements:
 (1) Witness (person who make the earlier identification statement) has to be on stand,
subject to cross,
 (2) Made the statement of identification after “perceiving the person/subject”

State v. Motta 
 Step 1: Is the sketch hearsay? (how many levels of hearsay are there with a sketch? 2)
o (1) Woman tells artist what the perpetrator looked like
o (2) artist draws down what woman said (picture expresses what her words
were, as if he wrote down what she said)
 So yes, hearsay, but does it come in under the exception of identification? Court says
yes, it is an earlier identification after perceiving the person and said “this is a picture
that looks like him” and it counts as an identification of a person after perceiving
them.
 Case suggests that an identification based on a photo array (“mugshots”) would satisfy
the rule.
 If a witness sees a crime, recognizes the culprit, and later says (to a friend or to police),
“Tom Jones is the one who did it,” the exception applies.
 It applies as well even if the witness only hears the voice of the culprit and says it’s the
defendant’s voice, or hears the voice of the culprit during the offense and then hears
a recording of a suspect and says “Yes, that’s the voice I heard.”
(14)  Hearsay Exceptions: Admissions by Party Opponent
801(d)(2)  Admissions by Party Opponent
 801(d)(2) cover admissions that we allow in evidence on account of the philosophy of the adversary system.
 Example: George gets into a car crash and just out the car say “I’m so sorry, it’s all my fault.” George then gets sued in
a civil case. At trial, the adversary wants to testify about what George said out of court.
o That is hearsay… does it come in? Yes, because of this exception.
14
o
Once it comes in, can my adversary say they automatically win? Usually not, evidence comes in, but I’m
allowed to try and convince jury I made a mistake. (not usually deemed binding and conclusive of the
issue)
 801(d)(2)  Admissions are generally not hearsay.
o 801(d)(2)(A)  Individual Admissions  creates what amounts to an exception for statements by a party
when offered against him.

Problem 4-C.  Fire in the Warehouse
 Guys leaves truck at a warehouse, and an employee at the warehouse causes an
explosion. Truck owner sues the truck shop, and wants to put on insurance adjuster
testifying that he talked to the shop owner and the shop owner said he spoke with the
insurance adjuster “yeah my employee started the fire.” Does the statement come in?
Yes, it comes in because exception (A) – offered against opposing party.
 Does shop owner have to be on stand? No.
 Switch around hypo… suppose somebody else was testifying on the stand and they
weren’t near explosion and didn’t see anything about it and proposes to testify “the
employee started the fire and he was negligent.” They got this info from talking to
other people. Would they be able to make this statement on the stand? He’s
repeating somebody’s hearsay statement, you don’t have any personal knowledge.
BUT personal knowledge is not required when talking about admissions by a party
opponent, however, normally there is a personal knowledge requirement when
testifying on the stand.

No requirement that the statement be made “against interest” HERE (but there is a whole other
section that requires the statement be made against interest).

Not allowed to have conclusory testimony in court. “My adversary is liable.”

But the statement “my adversary is liable” out of court is not objectionable.

What if statement was made when adversary was injured or intoxicated? Court says still usually
comes in.

Person talks in their sleep? Court says doesn’t come in.

Hesitant in criminal cases when offering against defendant.

Statement by a child that it was the child’s fault for running in street and getting hit by car.
Could driver of car introduce that in court? In general yes, there is no competency requirement,
even if the child is incompetent to testify in court.

Prior Guilty Pleas
 Problem 4-D.  An Encounter Gone Bag
o Sexual assault, defendant takes guilty plea, V then goes and files a civil case.
Can that guilty plea be admitted in the civil case? The answer is, most of the
time, yes. Admission by party opponent “yeah I did it, I’m guilty.” If you say
that to judge under oath and penalty of perjury, that is an admission.
o Defendant is represented, and the judge explains his situation. If D then enters
a plea, usually it is admissible in a later civil damage suit.
o The statement is admissible, but does that mean the Plaintiff automatically
wins? Courts go both ways on that.
o Guilty plea always comes in, whether it is dispositive, courts disagree.
o Guilty plea of minor traffic infractions (i.e., speeding)? Should such a plea, or
any resultant conviction, be admissible in a later civil damage suit? Absent
some special statute or rule, courts generally say yes.
o Nolo Contendre plea – you don’t plead guilt, you get the prosecutor to agree
that you are kinda sorta guilty, “no contest”  although you except criminal
liability, it doesn’t count as admission and can’t be used in a civil case.

Bruton v. United States 
o 801(d)(2)(B)  A statement is “not hearsay” under this provision when offered against a party and is one
the party “manifested that it adopted or believed to be true.”
o 801(d)(2)(C)  Creates an exception for a statement offered against a party and made by one whom the
party authorized to speak for him  sometimes called a “speaking agent.”

Barbara S. hires George as her agent to negotiate contracts for her. George goes to Dean
Hughes and asks if he would like “Barbara S. to sing for $10,000 on Thursday.” Dean says yes.
Then Barbara S. doesn’t show up to perform, and law school sues Barbara for not showing up.
George’s statement that “Barbara S. will show up on Thursday for $10,000”  is that admissible
15
o
against Barbara S.? Would it fit within the admissions hearsay exception. TRICK – it is not
hearsay. The statement would be offered to show that there was a K between Barbara and law
school. Statement by B.S.’s agent, but it is not hearsay (doesn’t need a hearsay exception).

But change it up… Pretend George and Hughes agreed to that deal, calls George later asking
what the deal was and George says, but B.S. doesn’t show up so law school wants to introduce
the statement by George… is that hearsay? YES. Offered to prove that there was a contract. To
have that admitted, need an exception, (the one here works) George is B.S.’s agent.

Pleadings from prior lawsuits, and pleadings superseded by amendment in the pending lawsuit,
are generally admissible against the party who filed them. So are answers to interrogatories,
whether filed in a prior suit or the pending suit.

Not so with an “admission” filed in response to “requests for admission.”

Expert witnesses – put one on and they testify in a certain way in your case – is this an
admission by you if I put an expert on? [NOTE 3 page 214]; supposed to be an impartial person,
and that testimony by my hired expert will count as an admission by me.
801(d)(2)(D)  Creates an exception for a statement by a servant or agent of a party if made during the
agency or employment, relating to a matter within its scope, when offered against the party.

Miranda is the plaintiff, and there was a statement made by the Defendant’s attorney  it
comes in! Statement by the party opponent.
 Party opponent, has an agent (attorney), whatever agent says comes in.

Exception endorses the use against employers or principals of statements by employees or
agents if the speaker himself is the tortfeasor.

Agent that has been hired to say stuff specifically on your behalf (aka a lawyer), hired to be my
mouthpiece in court or an agent of a performer hired to negotiate on your behalf  the
statement comes in (count as my statements), counts as an admission against the principal
(person who hired them)
 EX: general counsel for the greyhound bus company is afraid of liability, so GC sends a
memo to all the bus drivers that says “if you are ever in an accident, do not saying
anything, especially stay silent about what happened in the accident, and if you say
anything, you’ll be fired.” Bus accident, and bus driver can’t control himself and says
“my fault.” Witness heard bus driver say that... can that be admitted?
o No, the statement cannot come in under 801(d)(2)(C)  the company DID NOT
authorize the driver to say anything about the accident.
o But what about 801(d)(2)(D)? can’t avoid your agents statements coming in
against you just by making a rule they can’t speak. This exception would
allow the statement to come in.

Anything your employee says in the normal scope of employment  counts as a statement and
will come in under the hearsay exception.

What if the D is the government? (aka government admissions)  US Government, somebody
in justice department is being sued for disclination. Could you get in a statement that was made
by someone in the department of fisheries? (pretend it is relevant), technically yes, person in
fisheries is someone who is an agent of the government. But some courts say no you can’t hold
the whole government as an employer.
 Most courts would say government is just treated like any other employer – sometimes
this hearsay exception doesn’t get applied as rigorously when applied with the
government.

Mahlandt v. Wild Canid Survival & Research Center 
 Child was attacked by neighbor’s work, and they are employees of a company so they
seek the wolf at home.
 P’s say wolf attacked child.
 D says no the child crawled under the fence and got scratched by the fence, not the
wolf.
 If P wants to put in certain statements (1) the guy who cared for the wolf wrote a note
to superiors that the wolf beat the child and (2) at board meeting there was a decision
about the wolf beating the child. Do they come in against the D’s? Wolf guy and
company are the D’s. Are they hearsay? Yes
 Statement 1  does it come in against Wolf guy? Yes, 801(d)(2) admission by a party
opponent. Against Company? Yes, 801(d)(2)(D).
16


Statement 2  801(d)(2)(C) board members are agents of the company, come in. With
respect to wolf person do they come in? No, they are not agents of the wolf guy.
Requirement of Personal Knowledge? No personal knowledge requirement here.
(15)  Hearsay Exceptions: Unrestricted Exceptions
803  Unrestricted Hearsay Exceptions

Unrestricted Exceptions  apply regardless whether declarant is available as a witness (aka not on the stand).

These exceptions are said to turn on considerations of trustworthiness and necessity – statements fitting these
exceptions are considered trustworthy for one reason or another, and for various reasons they are considered
necessary for rational decision making.
o Present Sense Impressions and Excited Utterances  before FRE, considered “res gestae” (things that
happened)  a part of what happened, statement was made as the thing was happening.

Rationale = reliability, made at the time of the event, no time to forget.
o 803(1)  Present Sense Impressions  Creates an exception for statements describing or explaining an
event or condition if made while the speaker was perceiving it “or immediately thereafter” (immediacy is
key).

Requirements: (1) describe an event or condition) (2) made while the declarant perceived the
event, or immediately after it.

(1) The statement must be contemporaneous with the event or condition  while the
speaker perceives it or immediately thereafter;

(2) The speaker must have perceived the event or condition;

(3) The statement must describe or explain the event or condition.

Evidence Under the Rules Elements:

(1) Statement must be made “during or immediately after” the speaker “perceived”
an even or condition, and (2) must describe or explain the event of condition.

Nuttall v. Reading Co. 

Decided before FRE was adopted.

Husband died while at work.

Issue (1) what the employer said to the employee that forced him to come in.

Issue (2) whether the employee felt compelled to come into work

Some of the evidence the wife wanted to use was from what she heard the husband
say while he was on the phone with the employer – “Why are you forcing me to come
in?” Hearsay? Hearsay  out of court statement, and it is offered to prove that the
employer forced employee to come into work. Exception? Yes, description of event or
condition (Boss forcing him to come in) and statement is made at the same time that
he heard his boss say he has to come in.

2 levels of hearsay
o (1) Wife on stand describing husband’s statement – hearsay
o (2) Husband describes Boss’s statement
o 803(2)  Excited Utterances  Creates an exception for a statement by someone speaking under the
stress of excitement, expressing his reaction and relating to the casual event or condition.

Requirements:

(1) An event excited the declarant & (2) statement the declarant made was under the
excitement

Evidence Under the Rules Elements:

(1) the statement must relate to the event or condition and (2) declarant must speak
“under the stress of excitement that is caused.”

Judge determines these points (not a jury) under 104(a), as matters affecting
admissibility.

United States v. Arnold 

Under FRE 803(2), a court may admit out-of-court statements for the truth of the matter
asserted when they “relate to a startling even or condition made while the declarant was under
the stress of excitement caused by the event or condition.” To satisfy the exception, a party
must show three things. “First, there must be an event starting enough to cause nervous
excitement. Second, the statement must be made before there is time to contrive or
misrepresent. And, third, the statement must be made while the person is under the stress of
the excitement caused by the event.”
17


Hearsay statements:
o (1) 911 call from a witness (Gordon called 911 and told the emergency
operator that her mother’s boyfriend, Arnold, had just threatened her with
a gun)– admissible  she was frazzled and right after the threat
o (2) Gordon’s initial statements to police officers upon their arrival at the
crime scene (15 minutes later) – still distraught 15-20 minutes later is fine admissible
o (3) Gordon’s statement to officers upon Arnold’s return to the scene –
admissible because 5 minutes later and still visibly shaken (more emphasis
on shaken than time frame)
EXTRA NOTES:
o
o
o
(1) 911 Call

Satisfies first requirement  being threatened by a convicted murderer
wielding a semi-automatic handgun amounts to a starting event that
would prompt at least nervous excitement in the average individual, if
not outright human.

Satisfies third requirement  Gordon plainly remained in this state of
anxiety during the 911 call. Throughout the call, the operator had to tell
her to “calm down” and “quit yelling” and often had difficulty
understanding her frantic pleas for help.
(2) Gordon’s statement to officers upon their arrival at the scene
(3) Gordon’s statement to officers when Arnold pulled up next to the police car.

o
Does declarant have to be competent to testify (i.e., 2 year old kid who makes some out of court
statement all freaked out after being assaulted or hit by a car, does it come in under this
exception? Yes, there is no requirement that the out of court declarant be competent to testify
at trial.

Problem 4-J.  “I Felt This Sudden Pain”

S (who comes home from work early) told E “I felt this sudden pain just a few minutes
ago where I had to lift one of those 30-gallon cans out on the Chase” (part of his job),
H took S to doctor, doctor gave S tranquilizer, H died of heart attack.

E sues Liberty Insurance Company (workers’ compensation carrier for S’s old
company), seeking benefits as surviving widow.

Wrongful death claim: whether he suffered heart attack from work.

Do they come in under Present Sense Impression? No, statement is not right after the
event, he says statement several hours later.

What about Excited Utterance? Event excites the declarant – scary to feel chest pains,
and his statement to wife is the statement under that excitement/stress

E testifies (1) that she was surprised to see her husband come home at that hour, and
that he “never comes home at that time.”

E also testifies (2) what S said. Counsel invokes the excited utterance exception.

NOTES:
o Trend is courts are not requiring independent evidence of an exciting event.

Common Situations:

Accident Case

Violent Crimes Case

Child Abuse Case
803(3)  State of Mind Exception  covers statements regarding present thinking/feeling (statement
can’t be about something you remembered from before (retrospective)), has to be present state of mind

This exception covers a declarant’s statement about his then-existing:

(1) State of mind, including motive, intent, or plan (e.g., “I intended to go to Chicago
tomorrow”)

(2) State of emotional condition (e.g., “I’m so sad because…”)

(3) State of sensory condition (e.g., “My lower back really hurts right now”)

(4) State of physical condition (e.g., “My legs feel as though it’s broken”)

Has different uses… to prove:

(1) declarant’s then-existing physical condition
o In personal injury suits, the exception is regularly invoked for statements
describing aches and pains (“my shoulder hurts”)  hearsay, but does it fit
18


into this exception? Yes, describing physical condition at the time
experiencing the physical condition.
o But what if the statement “right after the wreck, my shoulder really hurt”
was made 1 day after the car accident? Issue in the case: whether the neck
hurt at the time of the accident. So, this statement is hearsay, offered to
proof the truth of the matter asserted. Does it fit within an exception? No, it
doesn’t describe then-existing physical condition, describes what the
physical condition was a day before.
o It does not matter whether the speaker is talking at the very time he was
hurt or at the onset of the ailment, so long as his words describe how he
feels NOW.
o Statements directly describing mental condition, so long as relevant, are
admissible.
(2) declarant’s then-existing mental or emotional condition
o Exception reaches only statements of PRESENT mental state
o EX: Defendant has been accused of selling drugs. D’s defense is that he was
just working as an undercover informant, so I’m not guilty. At the time he
was working as an informant, he tells his mom “I am so happy to be working
as an undercover informant for the government right now, I’m so proud to
be helping out.” Does it come in? Yes  statement that talks about his
then-existing mental/emotional condition (they have a feeling of happiness)
o EX: extortion prosecution (note, element of extortion is that the V felt
fearful)

“I’m scared! I feel threatened by X now”  admissible if offered
to show extortion against X (feeling threatened/fear is an element
of the crime = relevant), then admissible because it is relevant so
show that V is fearful. [present feeling at the moment when they
made the statement]
o D was alleged to have sold drugs on October 1 and then on October 3rd the
D says to mom “I’m so happy right now to be working for the government as
an informer.” Then are prosecuted for selling drugs 2 days before making
the statement. Fit exception? Yes, at that point they are taking about their
present feeling of working for government. Is there present feeling relevant
to their defense of selling drugs 2 days earlier? Yes – circumstantial
evidence. Current state of mind shedding light on the state of mind 2 days
earlier, it is good.
o Proving State of Mind by Fact-Laden Statements

Problem 4-K.  “He Says He’ll Kill Me”

V was killed with a knife, W will testify that V said “I am
scared, he said he will kill me and has threatened me
before.”

Prosecution is charging D with extortion  can it be
admitted with the state of mind exception to show that
D threatened V? No, it is past, at the time the statement
is made, V said “D in the past has threatened me” 
doesn’t fit the exception because, essentially, V is saying
“I remember in the past D threatened me” (that is a fact
that V remembers, and it is offered to show that D
threatened V) --- DOES NOT FIT (retrospective
statement).

What if the charge is murder not extortion?
o Can’t use a statement to prove a fact of memory or belief
(3) Declarant’s later conduct
o Mutual Life Insurance Co. v. Hillmon 

Three insurance carriers resisted a claim that the insured, John Hillmon,
died of an accidental gunshot at the hands of his traveling companion,
John Brown, at their camp in Crooked Creek. The defense argued that a
third man, Walters, was the man who killed Hillmon, and that Hillmon and
Brown conspired to fake Hillmon’s death. To prove Walters went to
19

o
o
o
Crooked Creek, the carriers offered two letters written by him (one to his
sister and the other to his fiancé), both saying he intended to leave
Wichita and go we toward Colorado. The Court concluded that the letters
in question were admissible: evidence that shortly before the time when
other evidence tended to show that he went away, he had the intention of
going with Hillmon.

Rule: A statement indicating intent of the speaker to do
something may be admitted as evidence that he later did
it/that.
Hillmon Doctrine:

The Hillmon Doctrine allows proof of a declarant’s declaration
of intent to do an act in the future to prove that the declarant
carried out that intent and di the stated act.

The allowed statements are those that are forward-looking in
time – statements that are backward looking constitute a fact
remembered or believed and the exclusion for a fact
remembered.

The most controversial aspect of the Hillmon Doctrine is the
use of the declarant’s statement to prove the future conduct of
a third person.

In Hillmon, SCOTUS held that the statement was not only
admissible to prove that Walters did go to Crooked Creek, but
also that he went with Hillmon.
o United States v. Pheaster 

(4) Declarant’s facts about his will (did not cover in class)
803(4)  Statements to Physicians  when a person seeks treatment from a physician, life and health
may hang in the balance – 803(4) recognizes an exception for such statements – descriptions of both
present and past symptoms, provided that they be pertinent to diagnosis or treatment.

2 Elements:

(1) The statement has to be for the purpose of treatment or diagnosis & (2) Pertinent
to the diagnosis or treatment.
803(5)  Recorded Collection
803(6)  Business Records  Records of regularly conducted activity (statements, records, documents)
connected with organizations (business, law school, etc.); can get in many layers of hearsay; the ultimate
source of the information that is in the business record must be from someone within the organization.

4 elements:

(1) Regular business
o Record is kept in the course of regular activity, a record fits the exception
only if each person involved in its preparation was acting in the regular
course of business activities.

(2) Personal knowledge of source
o Ultimate source of information has to be a person with knowledge within
the business.
o Exception contemplates multiple levels of hearsay – one entry based on
another, based on another, and so forth.

(3) Contemporaneity
o Record was made near or at time of event described

(4) Foundation testimony
o “Record Keeper” / “Custodian of Records”
o Expressly contemplates testimony by the custodian” of the records” or
“other qualified witness”

Can piggy-back business records exception with another exception

EX: patient telling the doctor something and then the doctor putting it in a record.
o Two levels of hearsay: (1) doctor records that record [BR] (2) what patient
says [803(4)]
o Ultimate source of the information is the patient, not the doctor. The
patient is the one who told the doctor something. The ultimate source of
what the patient said is the doctor. The doctor heard the patient tell the him
something.

Petrocelli v. Gallison  (medical records)
20

Norcon v. Kotowski  (investigative reports)

Allegations of sexual harassment within a company, company hired another company
to do an investigation (outside company comes up with the report). P sued for
wrongful termination after sexual harassment complaint by supervisor; evidence
showed the conduct towards her was inappropriate.

The investigation was done by an outside firm hired to monitor compliance with
workplace rules.

2 levels of hearsay:
o (1) report by the outside company (investigative company) – includes
statements by D company – does this report fit within exception? Yes, with
BRE…but can only have things observed by people within the business, but
report has statements from people OUTSIDE the business (2) … so need
another hearsay exception to get in report
o (2) includes hearsay statements by the Defendant company – statements by
employees of the D – need another exception to get this in  statements
get in with admissions by employees or agents by party opponent.

NOTE: In general, these internal investigation reports that are most likely to be used in
litigation, where the report is offered by the company, the reports are deemed to be
untrustworthy and not admissible  “self-serving investigative report”
803(8)  Public Records  gives an exception for any “record or statement of a public office” if the
record sets out information falling into any one of three categories. [Government analogy of business
records exception]

3 kinds of documents:

(1) Records that talk about the activity of the office or agency – documents that would
otherwise fit in the business records exception (covers stuff that goes on in the
business)

(2) “Matters observed” by government officials [pursuant to a duty imposed by law
(public officials)] – stuff that government officials go out to look at.

(3) Factual findings from official investigation
o 803(8)(A)(iii) – criminal case exception  government/police officers/law
enforcement personnel cannot use these exceptions against the criminal D
(not admissible). However, they can be used in a civil case.
o
Criminal D can use them against the government.

Trustworthiness Clause just like the BRE

Baker v. Elcona Homes Corp. 

Truck company wants to put in report of what the police officer saw when he came to
the scene of the accident. The report indicated (1) the truck was not at fault, and (2)
quoted that the light was green and the car just ran through it. Want to introduce (1)
the police report and (2) the quotation of the truck driver.
o Court discusses the public records exception.
o The report is admitted under the second category of documents covered: a
police report is a public record and report within the meaning of 803(8).
o The quotation of the truck driver that was in the report: The court says
another hearsay exception is required for the truth of the matter asserted
and they suggest one for a prior consistent statement. For prior consistent
statements, think the requirements: (1) a charge of recent fabrication…
does the prior statement by truck driver rebut…? (Shephard says “ I don’t
think so”).

Bottom line: factual findings can come in even if they are based on hearsay – don’t need any
other hearsay exception.

Public Records vs. Business Records

Which is broader? Public Records
803(13)  Family Records
803(18)  Statements in Learned Treatises

803(18) permits full use of a learned treatise if (a) it is shown to be “reliable authority” and (b)
either a testifying expert relies on it during direct examination or it is called to his attention on
cross.

o
o
o
21

o
o
o
I.e., offer expert testimony  expert testifies that he knows and respects the work, or
the work is authoritative)

The idea here, much like the idea behind expanding the medical statements exception to cover
statements made to doctors who merely “diagnose” a person (and not limiting it to “treating”
doctors”), is that if an expert can rely on such material, then the jury ought to be able to do so
as well.

Prior to FRE, one could cross-examine an expert about a treatise but could not offer it as
substantive evidence.

Under 803(180, a treatise may be “read into evidence” but not “received as an exhibit.”
803(19)  Reputation Concerning Personal or Family History  authorizes evidence of personal reputation
 covers reputation of a person within his family concerning matters such as his birth, marriage, death,
and relationship by blood and marriage.
803(21)  Reputation Concerning Character  authorizes proof of reputation within the “community” as
to “character.

REMEMBER: limited number of situations which you are allowed to prove character.

No hearsay issue when the person testifying uses opinion evidence because it is their
opinion.

Reputation evidence – someone on stand gets up and says, “George Shephard has a
reputation in the community for being a total jerk.” Objection? HEARSAY! Person on
the stand is so called reporting what other people have told him what George is like.
BUT 803(21) allows it in (it is an exception).
803(23)  Reputation Evidence/Family History Evidence  Judgments on matters of personal, family or
general history, or boundaries.
(16)  Hearsay Exceptions: Declarant Unavailable




1)
The 5 hearsay exceptions in 804 envision a two-step process:
o (1) The proponent shows that the declarant is unavailable as a witness [804(a)],
o (2) The proponent shows that the statement fits one of the 5 exceptions [804(b)].
804 is a series of exceptions when the out of court declarant is unavailable.
Judge determines whether the declarant is unavailable, meaning that the question is one of admissibility under
104(a).
NOTE: “unavailability as a witness” does not mean that the declarant is physically unobtainable – hiding or beyond
reach of subpoena  the requirement is also satisfied if his testimony is unobtainable.
The Unavailability Requirement  804(a)(1-5)
a. 804(a)(1) – Claim of Privilege
i. “Unavailable” if exempted from testifying by court order on ground of privilege.
ii. In criminal cases, witnesses sometimes invoke 5th Amendment privilege against selfincrimination.
b. 804(a)(2) – Refusal to Testify
i.
c. 804(a)(3) – Lack of Memory
i. Declarant testifies to not remembering the subject matter.
ii. Some person who said something before “D is guilty” and then at trial are asked about it and say
“I don’t remember about whether the D is guilty.” (counts as unavailable) and prior testimony
would come in as long as it fits an exception in 804(b).
d. 804(a)(4) – Death, illness, Infirmity
i. A minor ailment from which speedy recovery is expected should not satisfy this requirement,
even though the declarant cannot attend trial on a given day.
ii. A serious illness of uncertain prognosis is likely to be enough.
iii. In some situations, mental condition makes a witness unavailable to testify even though the
modern view is that insanity does not disqualify one from giving evidence.
e. 804(a)(5) – Unavoidable Absence
i. Can’t get them to show up.
ii. If his/her presence cannot be had at trial by subpoena or “other reasonable means.”
iii. Have to try to get them to show up, otherwise doesn’t count as unavailable.
iv. You cannot cause them to be unavailable.
22
f.
Barber v. Page 
i. Not unavailable because no effort or reasonable means to secure the W’s presence at the trial.
ii. No good-faith effort was made to get the W at the trial
**** If someone is unavailable… Does an exception apply?

804(b)  The Exceptions  The following are not excluded by the rule against hearsay if the declarant is
“unavailable as a witness”:
o 804(b)(1)  Former Testimony Exception  Testimony that:

(1) was given as a witness at a trial, hearing, or lawful deposition, whether given during the
current proceeding or a different one; and

(2) is now offered against a party who had  or, in a civil case, whose predecessor in interest
had  an opportunity and similar motive to develop it by direct, cross-examination, or redirect
examination.

EX: Prior testimony of another witness (not the D) from a transcript from a prior trial… how do
you get it in? Start with: How many levels of hearsay are there?

2: court reporter writing & what person actually said.

(1) Court reporter transcript (reporting what the witness said)  public records
exception (observed by a government official, observing what goes on in court)

(2) What the witness said  prior testimony exception 804(a) + 804(b)(1) gets actual
statements in for the truth of the matter asserted.
o NOTE: cannot use admissions by party opponent here because it is not a
party opponent (if D, then could use admissions by party opponent
exception).

Lloyd v. American Export Lines, Inc. 

Fight between L and P on a boat, and coast guard holds a hearing to determine if L
should lose his license.

“If it appears that in the former suit a party having a like motive to cross-examine
about the same matters as the present party would have, was accorded an adequate
opportunity for such examination, the testimony may be received against the present
party.”

PURPOES OF OUR CLASS: (1) same motive to cross examine at earlier proceeding as the present
case AND (2) predecessor in interest (privity kind of way)

Example 1: Bus crash:

P1 sued D(bus line). Witness testifies for D. P1 cross examines the Witness. D wins.

P2 sues D(bus company), D(bus company) wants to use witness testimony from first
case. P2 will say “I didn’t get a chance to cross-examine the Witness in the first case,”
most courts would say P1 is not the predecessor in interest of P2 (P1 not in privity
with P2), so the prior testimony exception would NOT be available.

Example 2: Bus crash

P1 sues D1, Witness testifies for P1, Witness dies. Case resolved.

P1 sues D2

Can P1 introduce testimony from W from first proceeding? D’s are different, and don’t
count as predecessor in interest, and therefore, the exception would NOT be
available.

Not admitted because although D1 cross-examined W, D2 did not have the
opportunity to cross-examine W (not predecessor in interest).

Example 3: Bus crash

P1 sues D, P1 wins. P1 has W testify and then W dies.

P2 sues D and wants to use W’s testimony.

Can P2 use testimony from the first case? YES!  The D in the first had an opportunity
to cross-examine the witness against them. Have the same motive to cross-examine
them in the first case as in the second case, so the exception IS available.

NOTE: Non-mutual collateral estoppel.
o 804(b)(2)  Dying Declarations  in a criminal homicide case AND all civil cases, a statement that the
declarant, while believing the declarant’s death to be imminent, made about its cause or circumstance.

When a person understands that his death is imminent and speaks of his circumstance, the
hearsay doctrine has recognized an exception for his words.
23

o
Judge decides whether the declarant knew he was dying (it affects the admissibility rather than
relevancy)

Requirement: (1) the person who makes the statement has to believe that death was imminent
(only statements that come in are the cause and circumstances of impending death)

Related to the “Excited Utterances” Exception  Dying Declarations Exception could also fit
Excited Utterances Exception.

If you are really zen/calm/chill/peaceful when dying  dying declaration exception would work,
while excited utterance would not.

What happens if person eventually recovers? They have a knife in them, think they are going to
die, says something, then totally recovers. First part of 804 (unavailability requirement) DOES
NOT APPLY!

What if a person recovers, then gets hit by a bus? Dying Declarations Exception would apply!

You don’t have to die from the cause you are talking about, but as long as you believe you are
about to die, then the exception applies.

Who decides whether the declarant thinks they are about to die? JUDGE (104(a) issue.

Some courts say there is a personal knowledge requirement, some courts say there is not a
personal knowledge requirement.
o Shepard: Dying declaration admissible only if circumstances permit
inference that declarant had knowledge and should be excluded if speaker
expresses “suspicion or conjecture.”
o State v. Wilks: statement that certain people hired assailant inadmissible as
dying declaration because of lack of knowledge.
o COMPARE with Soles v. State: admitting statement by declarant shot in the
back of head identifying defendant as his assailant, without discussing
personal knowledge.

How imminent must the prospect of death be?

Shepard v. U.S. 
o Trial of Shepard for the murder of his wife.
o Wife was poisoned and slowly died and while dying said “my husband
poisoned me.” Justice Cardozo said that the exception did not apply – she
didn’t really believe death was imminent.
804(b)(3)  Declarations Against Interest 

Thought to be trustworthy on the ground that a person is unlikely to state facts (or make
statements) harming him own interest unless they are true.

TIMING  At the time the statement is made, it must be against Declarant’s interest AND the
declarant must understand his own interests and how the fact or statement could affect them
(personal knowledge).

3 ways a statement can be against interest:

(1) Pecuniary/financial interest --- might lose money because of a statement.

(2) Against proprietary interest --- ownership of something, if you say something that
suggest that you don’t own something valuable.

(3) Against Criminal Interest (penal interest) --- admit you are guilty of a crime.

DOES NOT include statements against your social interests.

EX: “I have a problem with my digestive system, so I have bad gas.”  does not fit within the
exception.

Thought of to be trustworthy --- a person is unlikely to state facts (or make statements) harming
his own interest unless they are true.

Williamson v. United States 





o
Williamson says “I am guilty, but other guy is too.” Witness refuses to testify (unavailable
despite court order)
Issue: What part of this statement is the “statement against interest”?
Court says “I am guilty” is the “statement against interest” (if it implicates you  against
interest)
“Other guy is guilty” not generally admissible, not really against own interest.
804(3) does not reach associated (or “collateral”) statements  instead, opinion says a
statement must itself be against interest.

Criminal Cases  Statements Implicating the Accused
804(b)(4)  Statement of Personal or Family History  lets in statements about when a person says
something about their family history, or an intimate saying something about your family history.
24


Statements include matters relating to birth, adoption, and relationship by blood or marriage
are admissible under this exception when the declarant is unavailable.
Applies despite the fact that the declarant sometimes conveys what he heard from another and
thus lacks personal knowledge (“My mother told me I was born in West Virginia.”
(17)  Hearsay Exceptions: Constitutional Bars

Confrontation Clause
Confrontation Clause in the 6th Amendment --- “In all criminal prosecutions, the accused shall enjoy the right… to be
confronted with the Witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to
have the Assistance of Counsel for his defense.”
o The 3 clauses protect the right of the accused to defend against criminal charges
o The first (Confrontation Clause) bears directly on using hearsay against the accused (out of court
statement to be used against criminal D cannot be used, have got to get the out of court declarant in the
court to confront the accused).
o Entitles the accused 2 things: the accused is entitled to be there when witnesses testify against him, and
to cross-examine.
o NOTE: The CC sometimes blocks hearsay that would ordinarily be admissible and sometimes allows
hearsay that would ordinarily be excluded.
o ONLY applies in criminal cases & ONLY the Criminal D gets the benefit of this.
o Most of the time, if an out of court statement fits within a hearsay exception, almost always then it comes
in, and it is consistent with the CC clause. (doesn’t always act as a second means that something is
excluded, because sometimes it acts as an additional hurdle).
o Applies in federal and state courts.
o 6th Amendment today: Must satisfy BOTH 6th Amendment CC protections AND fit into a hearsay exception.
o NEW SYSTEM = Crawford System (2 parts)

(1) Confrontation clause prevents admission only of “testimonial” statements.

Declarant reasonably expects the statement would be used in an investigation of a
crime.

Statements made to the police = testimonial

Police asked you to sign an affidavit

Prior testimony in some earlier case.

Includes actual testimony at a trial, before a grand jury, or in a preliminary hearing or
pre-trial motion, or other proceeding (like plea hearing)

Eyewitness statements to police officers when they describe criminal acts (because
they will be used in investigation or prosecution)

What is not testimonial?
o Statement to a friend, conversations, etc.
[NOTE: just because something is testimonial does not mean it is automatically excluded, there is a second
requirement]

(2) Has to be cross-examination

Limits with regards to cross-examination of testimonial statement --- can be
contemporaneous or deferred (has to be cross-examined either when when the
statement was originally made or at trial)
o What if the statement is not testimonial? Confrontation Clause DOES NOT APPLY  aka the statement
can come in as long as it fits under another hearsay exception
o SUMMARY: CC is only going to apply to testimonial statements. But even if something is testimonial, it is
still ok for it to be admitted, as long as there was either contemporaneous CE or there is CE now.
o Court notes that certain statements are going to come in even if they don’t seem to satisfy the analysis.

EX: dying declarations may be admitted even if they are testimonial.
o Friend of assault V wants to testify that the V told friend that D was the assailant. Does CC bar that?

Private conversation between alleged victim and friend, first Q: whether this is testimonial?
Courts most of the time say these are nontestimonial (private conversation – no expectation to
be used for an investigation for a crime).
o Statements by a child abuse victim to a mother? Mother wants to testify about what the child said,
because child refuses to testify. Can the statement by mother still come in? Most of the time the courts
would say these statements are nontestimonial (don’t really except to be used by police); fine under CC,
then would have to find a hearsay exception
25
o
o
o
o
o
Child abuse V to police and then they investigate? Most of the time the courts would say testimonial.
Conspiracy? Statement by one conspirator to another? One conspirator tells police what other said. Is that
testimonial? Not barred, it is testimonial, they would be horrified if there statement would be used in an
investigation. If there is a hearsay exception that applies, statement would come in.
Lied to police? Cases say it does not implicate the CC.
Statements to law enforcement do count as testimonial. Aka barred by CC, unless there has been either
(1) contemporaneous cross-examination at the time the statement was made, or (2) deferred crossexamination (the person is on the stand right now)… there is an exception to that (Emergency Doctrine)
Davis v. Washington  The Emergency Doctrine  not testimonial if dealing with ongoing emergency.

Talking to law enforcement, about an on-going emergency don’t count as testimonial. Can come
in, CC does not prevent them from coming in. What hearsay exception would you want to use?
Excited utterance.

Statements are non-testimonial when made in the course of police interrogation under
circumstances objectively indicating that the primary purpose of the interrogation is to enable
police assistance to meet an ongoing emergency; however, they are testimonial when there is
no ongoing emergency.

A 911 call is not designed to prove past fact, but to call in current circumstances requiring police
assistance.
(18)  Competency






Competency  The Modern View: U.S. v. Lightly 
o Every witness is presumed competent to testify, 601, unless it can be shown that the witness does not
have personal knowledge of the matters about which he is to testify, that he does not have the capacity to
recall, or that he does not understand the duty to testify truthfully.

This rule applies to persons considered to be insane to the same extent that it applies to other
persons.
o Insane person can testify if he understands what it means to be truthful AND can take the oath.
o Everything comes in, nobody is incompetent, jury is deemed to be smart enough to account for the
potential biases that people have  assumption is that you let them testify and then they can be crossexamined.
Rules to Exclude Testimony of the Incompetent:
o 401 & 402: relevancy rules (argue what they are saying is irrelevant because it is jibberish)
o 403: unfair prejudice outweighs probative value: testimony is so confusing
o 602: Lack personal knowledge – what they are saying is completely incomprehensible
o 611: courts power to control witnesses, allows judge to regulate what happens at trial, needless
consumption of time
o 603: does not understand oath
Could a witness be forced to undergo a psychiatric exam? Cannot request psychiatric exam/evaluation unless W is a
party of the action or P.
Man who consumed opium on stand was deemed competent to testify at trial – comes out on cross-examination.
601  Competency to Testify  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.
o AKA --- Every person is competent to be a witness except if another rule applies (401, 402, someone is just
insane), lacks personal knowledge under 602, or 611 allows the judge to regulate what happens at trial.
o 2 situations in which they are NOT competent to testify  (1) judges in the case & (2) jurors in the case.
602  Personal Knowledge Requirement  Before a witness is allowed to testify, 602 requires that evidence must
first be introduced “sufficient to support a finding that the witness has personal knowledge of the matter about
which the witness proposes to testify.
o Who decides whether the witness has personal knowledge?  The judge & the jury.

Under 104(a) the judge must decide whether there is sufficient evidence to support a jury
finding of personal knowledge.

But the ultimate determination of whether the witness has such knowledge is made by the jury
under 104(b).
o Relates to the hearsay rule 

EX: “I heard someone say Rich Freer is wonderful.” (pretend I don’t have personal knowledge of
Rich Freer being wonderful). How does 602 work in this situation? Would appropriate objection
26





be “lack of personal knowledge”? No, 602 would not be appropriate. I am just introducing
hearsay statement of someone else (out-of-court statement)  appropriate objection would be
hearsay.

I would have to have personal knowledge about what I am testifying about… did
George really have personal knowledge that someone said “Rich Freer is wonderful”

“Rich Freer is wonderful.” On cross-examination it appears George doesn’t have any personal
knowledge and he’s only saying it because he heard from someone else. He got the knowledge
from someone telling him.  appropriate objection would be 602 lack of personal knowledge
objection.

Personal knowledge requirement for out-of-court declarant? George testifying on stand that
someone said “Rich Freer is wonderful”

602 Personal Knowledge is applicable to George – he must have heard someone say it
out of court.

What about the person he heard say it out of court? Do they have to have personal
knowledge that Rich Freer is wonderful? Generally, they do. Every level of hearsay,
there has to be personal knowledge. Person in court testifying has to have personal
knowledge, as well as the person who made the out of court statement.

In-court-statement (repeats the out-of-court statement) [have to have personally
heard someone say “Rich is wonderful”], then have the out-of-court statement [does
person who actually said “Rich is Great” has to have personal knowledge that Rich is
great]  602 applies to both.

In general, out-of-court statements have to be based on personal knowledge, except
for statements by party opponent (agents, business records exception, etc.); another
hearsay exception  dying declaration – person is supposed to have personal
knowledge.

When doing hearsay analysis, every level of hearsay, have to see if there is personal
knowledge.
603  Oath Requirement  Requirement that every witness must give an oath or affirmation to testify truthfully.
o If a person refuses to take the oath, they are deemed incompetent to testify at the trial.
o United States v. Fowler 

Court refused to allow D to testify after he refused to either swear or affirm that he would tell
the truth
o Child Witness  children that are too young to understand the oath are incompetent to testify --- a child
can understand the oath as long as they know the difference between what is true and what is false.

Ricketts v. Delaware 

Only witness to a crime is a small child, and the child is so small that they don’t understand the
oath  child can’t testify, you get away with the crime.
Dead Man’s Statutes  an interest W testifying on a transaction with a person who is now deceased.
o A really rich person dies, and people come out trying to get money out of dead man’s estate, and one
person says “2 days before he died, I was going to buy his $20 million dollar house for $20” --- is that
testimony allowed that there was an agreement between the mean and dead man? Problem is that this is
a total fraud scam, second party is dead. Some states have rules that say no.
Lawyers as Witnesses  FRE do not prohibit lawyers from testifying.
o EXCEPT, testimony by an attorney who is acting as counsel violates applicable ethics rules, unless the
testimony falls into one of several narrow exceptions.
605  Judges Competency as a Witness  A judge may not testify as a witness at the trial over which she/he is
presiding. However, a judge may testify as a witness in a different trial or hearing.
606  Jurors Competency as a Witness 
o Preverdict Testimony by Jurors  606(a)  At Trial  A juror may not testify as a witness before the
other jurors at a trial.

Problem 6-A.  Outside Influence

In a highly publicized criminal prosecution of Volstad, a leading political figure, the jury
is given strict instructions not to read newspaper accounts of the trial or discuss the
case with anyone. During the trial, the judge receives information that one juror read
newspaper accounts of the trial and discussed those accounts with others at lunch.
The judge also hears that an associate of the defendant talked with the same juror
outside of the court and offered what may have been a bribe. During a recess in trial,
27
o
after other jurors have been excused, the judge questions the juror about both
matters. Does FRE 606(a) bar such inquiry?
o Here, the juror is allowed to testify --- the other jurors have been excused.
o If the other jurors had not been excused, the juror would not have been
allowed to testify --- a juror may not testify as a witness BEFORE the other
jurors at the trial.
Postverdict Testimony by Jurors  606(b)  During an Inquiry Into the Validity of a Verdict or Indictment


Renders a juror incompetent to 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 process concerning the verdict or indictment.”

606(b)(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.

This rule deals with situations in which the jury has reached a verdict and the issue is
that one of the jurors wants to testify that bad things happened in the jury room. 
Can’t testify!

In general, under 606(b) you cannot have a challenge of a jury verdict based on bad
stuff that happened in the jury room.

606(b)(2)  Exceptions  A juror may testify about whether:

606(b)(2)(A)  extraneous prejudicial information was improperly brought to the
jury’s attention;

606(b)(2)(B)  an outside influence was improperly brought to bear on any juror; or

606(b)(2)(C)  a mistake was made in entering the verdict on the verdict form.

Problem 6-B.  Refusal to Take the Stand

Adkins is convicted of unlawful possession of narcotics at a trial in which he did not
testify in his own defense. A week after trial, the judge receives a letter from a juror
expressing concern that the jury violated the judge’s instructions because it
considered Adkins’ refusal to take the stand as an admission of guilt. The judge
informs both counsel of the letter, and the attorney for Adkins files a motion for a
new trial based on juror misconduct. May the juror be called to testify on the matters
in the letter? May the letter be considered?
o Cannot be testimony about the letter --- not extraneous prejudicial
information and no outside influence either.
(19)  Presenting Evidence

611  Mode and Order of Examining Witnesses and Presenting Evidence 
o General Rule --- 611(c)  Leading Questions  Leading questions should not be used on direct
examination (supposed to use open-ended questions).

611(c)(1)  on cross-examination; and

611(c)(2)  when a party calls a hostile witness, an adverse party, or a witness identified with
an adverse party.
o Under 611(c), trial judges have discretion to permit leading questions, even during direct examination.

EXCEPTIONS:

(1) When necessary to develop testimony Where you wouldn’t be able to get
anything by using open ended questions.
o (1) very young, hence apprehensive, uncomprehending, or confused.
o (2) timid, reticent, reluctant, or frightened.
o (3) ignorant, uncomprehending, or unresponsive,
o (4) infirm.

(2) When witness is uncooperative  When the witness is “hostile” or “an adverse
party” or “identified with an adverse party.”
o Idea is when a witness refuses to cooperate, the trial lawyer needs a little
coercive power to get at what the witness knows.

(3) When the Rule is more trouble than its worth When it would be stupid to insist
on using narrative questions (preliminary matters, uncontested matters)
28

(4) When memory seems exhausted  Situation where the witness does not
remember the answer to the question they are beyond asked.
o “Refreshing the recollection of the witness”
i. EX: You are the prosecutor in a murder prosecution, and I call my
witness who is going to identify the D as the perpetrator (qualify
them, etc). Then I say “Who is the murderer?” And they say “Uhh,
I don’t remember.” I can write down on a piece of paper “the D is
the murderer, now review the piece of paper I’m handing to you.”
And then I ask again, who is the murderer?” and then witness
says, “I remember now, it is the D.” ALLOWED.

Baker v. State 

Defense wanted to refresh W’s memory (who could not
remember) by using a police report written by someone
else who talked to the witness. Refresh recollection of
first police officer with the report of the second police
officer. ALLOWED – use anything to refresh the
recollection of a witness who doesn’t remember.

PRACTICING HEARSAY: Would it be possible to admit the
police report by the other police officer?
o How many levels of hearsay? 2  (1) police
report (describing what the V said) (2) What
the victim said.
o Level 1: would be a public record for things
observed by a public official [but doesn’t get it
to the truth of the matter (level 2)]
o Level 2: for the truth of the matter asserted
 excited utterance or dying declaration

Usually the attempt to refresh memory involves a prior statement
by the witness. Baker allows use of a report by a fellow officer.

Lawyer gently reminds the witness of something she/he said
before, often in a written statement or affidavit or a deposition.

612 recognizes this technique  when you refresh the
witnesses’ recollection with an item or document, the
adversary is entitled to look at it.

Can cross-examine a witness who has had their recollection
refreshed 

Document used AT trial to refresh  almost always
allowed.

Document used BEFORE trial (preparation material) 
612(a) the court may order production not only of
writings used to refresh memory “while testifying,” but
also of writings used “before testifying,” if the court
decides that justice so requires.

James Juilan, Inc. v. Raytheon Co. 
o Attorney gave witness a binder of documents
to review, none were privileged. Attorney
claimed work-product privilege because he
worked to select the info.
o Other side claims he waived work-product by
showing
o If you show witness work product  opposing
party gets to see it.
o P’s counsel made a decision to educate their
witness by supplying them with the binders,
and the D’s are entitled to know the content
of that education.
o Interest of justice they should be disclosed.
29
o

Cross-examination is a right the litigant has, in both civil and criminal cases, each party has the right to
cross-examine witnesses called by the other side.
615  Excluding Witnesses  a court “must order witnesses excluded” so they cannot hear other testimony, if
requested by a party, or the Court may do so on its own.
o “Sequestering” (excluding) the witness --- usually sequester them out of court unless they are a party or
authorized by statute to be present.
o This rule does not authorize the exclusion of:

Natural person parties are authorized to be present.

Party is a corporation, and a corporation can have a representative to be in the courtroom.

Essential to presenting party’s claim or defense (expert witness).

Can’t exclude a person authorized by statute to be present (often victims in criminal
prosecutions).

Problem 7-A.  Daily Transcripts
o Judge sequesters witness (there are other initial witnesses), but the
attorney shows the transcript of the trial in advance of those witnesses
testifying  can’t do this, it violates the sequestration order, cannot find
out other ways of what happened at trial.
o Crime Victims?

In our system, crime victims are not parties. Victims are not covered by 615’s exemption for
“parties.” Nor are victims normally categorized as persons “essential to the presentation of the
case” (this exemption usually applies to agents and experts).
o What if a witness violates a sequestration order, and sneaks back into the courtroom to listen to the trial…
what is the penalty in that situation? Usually the penalty will not be excluding the witness from testifying,
they will still get to testify but the other side may get to comment on the fact that the violated the order.
o And what if the potential witness is a criminal defendant? He cannot be excluded from his own trial, and
an order not to discuss the case with his attorney could violate his constitutional right.
(20)  Impeachment:



Impeaching the Witness  show that the adversary’s witness is lying, should not be believed, does not know what
they are talking about; casting doubt on a witness.
Technical Rules  various ways of impeaching, in some ways you can only use intrinsic evidence, and in other ways
you can use extrinsic evidence.
o Intrinsic evidence  evidence you get from the mouth of the witness you are trying to impeach; usually
evidence that comes out on cross-examination.
o Extrinsic evidence  getting information from another witness; doesn’t come from the witness himself;
comes from someone else: other person’s testimony.
Methods of Impeachment 
o NOTE: 1-3 are nonspecific; 4&5 are specific.
1) Showing that the witness has some bias, animus, motivation, or corruption that might lead him to
fabricate or shade his testimony to help or hurt one of the parties.
2) Showing a defect in sensory or mental capacity (perception or memory) that undercuts his testimony.
3) Showing that he is by disposition untruthful.

Ways to get this in:
1) 608(b)  Cross-examining the target witness about non-conviction misconduct
casting doubt on his honesty.
2) 609  Cross-examining him about certain kinds of convictions.
3) 608(a)  Testimony by a character witness that the target witness is untruthful.
4) Showing that the witness has made a prior inconsistent statement (one that conflicts with his current
testimony.
5) Contradicting the witness  showing that he is just plain wrong on one or another point in his testimony.
(21)  Impeachment: Nonspecific Impeachment

Nonspecific Impeachment  trying to show that the witness is generally not to be believed; that the witness is a
non-reliable witness.
1) Showing Bias 
30

2)
Use extrinsic evidence to show bias (bias from witness themselves) – to show that the witness
has an incentive to shade the truth and to lie, sometimes there is a subconscious incentive to
shade the truth in one way.

Can use both, extrinsic evidence AND intrinsic evidence.

Completely truthful person can have a motive for bias.

Prosecutor who has given a plea deal to a witness will always bring out the plea deal on direct
examination.

Hypo 

Someone who testifies against criminal D, witness should be allowed to show bias by
BOTH extrinsic and intrinsic evidence.

“Isn’t it true you are the cousin of the P?” They say “yes” = intrinsic evidence.

“Isn’t it true you are the cousin of the P?” They say “nope that’s not true.” – can you
introduce extrinsic evidence? YES (i.e., birth certificate).

United States v. Abel 

D and 2 cohorts were indicted for robbing a bank. (The cohorts elected to plead
guilty), but D went to trial.

One of the cohorts agreed to testify against D and identify him as a participant in the
robbery. At pretrial conference, D informed the Court that he would seek to counter
the cohort’s testimony with testimony of a friend (who was not a participant in the
bank robbery). The friend planned to testify that after the robbery the cohort had
admitted to the friend that he intended to implicate D falsely, in order to receive
favorable treatment from the government.

The prosecutor was going to impeach the friend by showing that they are all part of
the Aryan brotherhood.

Prosecutor crosses witness on this (would have been intrinsic evidence)  witness
denies  prosecutor has another W testify (this is extrinsic evidence)

Extrinsic evidence  allowed to use it to show bias.

What is the source of the right to impeach for bias since it is not in the FRE? Court
says it does not matter, the FRE sat upon lots of preexisting practice for evidentiary
issues so the FRE specifically mentions certain practices, but doesn’t mention others.
But the fact they aren’t mentioned doesn’t mean they are eliminated, they just
continue on (co-exist with the preexisting practice and continue on).

Specific form to show impeachment by bias? If you are a remember of the same group
as a party, that creates the kind of bias that we are talking about, so it would be
admissible.

Often it happens that key prosecution witnesses are themselves involved in crimes giving rise to
prosecution. The prosecutor must disclose information about deals and promises of leniency
affecting such witnesses, and defendants follow up at trial by asking about these points.

Problem 8-A.  The Hired Gun

Limits when showing bias?

Can there be payments to witness?
o Can pay them, can pay them by the hour, but CANNOT pay them on
contingency.

Can ask whether testified for this lawyer in the past or the defendant

Payments to non-expert witnesses?
o Can be paid too (i.e., witness protection plan)
Lack of Sensory and Mental Capacity

The attacking party may seek to show that a witness had only a brief chance to see or hear what
she has described in her testimony, or that she labors under defects in sensory capacity that
affect her observation, or that human perceptive processes work in ways suggesting that her
testimony is not so persuasive as it seems.

The cross-examining lawyer may bring out, for example, that the witness has poor
eyesight or hearing, or may have been fooled by the angle of the sun or by noises that
kept her from hearing what she thought she heard.

Can use extrinsic and/or intrinsic evidence.

Can show environmental conditions (dark, noisy, cloudy)

Defect the witness has in their ability to sense or perceive things (drunk, insane, on drugs, deaf,
mental issue, etc.)
31

3)
FRE don’t say anything about impeachment for limits or impairment of sensory or mental
capacity (just like impeachment for bias) --- SC said FRE implicitly allows it because they do not
disallow it) --
607  who May Impeach a Witness  Any party, including the party that called the
witness, may attack the witness’s credibility.

Mental Exam? NO!

Adversary wants to impeach witness on lack of sensory capacity on cross and wants a
mental exam. NOPE  cannot do that. If witness is not an opposing party, do not
require a non-party witness to get a mental exam.
Character for Truth and Veracity

608(a) provides that a witness may be impeached by proof that he is by disposition
UNTRUTHFUL.

Untruthfulness on the part of a witness may be shown in 3 different ways:
o (1) testimony by a second (or “character”) witness.
o (2) involve cross-examining the target witness about her own bad acts
shedding light on veracity or on her own convictions shedding light on
veracity.

Under 608(a), a character witness may give either opinion or reputation testimony indicating
that the principal witness is untruthful.

RECALL: 404 generally bars character evidence to prove conduct out of court. Showing that a
person is untruthful involves character evidence to show a particular kind of conduct in court –
lying on the stand – and 404(a)(3) makes an exception to allow this strategy.

3 ways to show untruthful disposition 

Cross-examination on non-conviction misconduct
o ONLY INTRINSIC EVIDENCE (extrinsic evidence is barred)
o One way to suggest that a witness is disposed to be untruthful is to bring
out on cross instances of non-conviction misconduct that seem to bear on
veracity.
o Witness did bad stuff in the past, so they are dishonest and shouldn’t be
believed.
o 608(b) says the court “MAY” allow questions about “specific instances” of
conduct by the witness relating to “character for truthfulness.”
o 608(b)  may NOT be proved by extrinsic evidence, only on cross, specific
instances of conduct if they are probative of the witness’s character for
truthfulness.
o “Isn’t it true that you regularly hit your dog with a baseball bat?”  not
allowed on cross; possible to have an honest dog beater.
o “Isn’t it true that you are promiscuous sexually?”  not allowed, has
nothing to do with whether or not you are honest; these past acts don’t
have anything to do with the truth, not an appropriate question.
o After witness testifies, opposing counsel stands up and asks, “isn’t is true
that you have lied repeatedly on your tax returns?”  ALLOWED –
probative of truth (since dishonest before, may be dishonest now).

But note, cannot bring in extrinsic evidence to show past nonconviction misconduct (i.e., the tax returns).
o What if person denies past behavior (and is lying): CANNOT bring in extrinsic
evidence (cannot bring in another W to testify)
o NOTE: if you are bringing a witness and know there is going to be
impeachment for bias… what do you do? Bring it out on direct, it is a helpful
litigation strategy (bring it out yourself, rather than your adversary pop it on
you and make it seem like you are hiding something.
o Non-conviction misconduct standard --- probative for character for
truthfulness.
o Most probative  Shows dishonesty – forgery, embezzlement, fraud,
perjury
o Not allowable  things that are just bad, but don’t have dishonesty to them
– violence, selling drugs, prostitution, things don’t show propensity for
truth, not probative
32
Middle Category  Courts differ; thief – burglary, break into someone’s
house, shows some aspect of dishonesty
o United States v. Manske 

Describes a broad, narrow, and middle view of the breadth of
question under 608(b).
Cross-examination on convictions
o A second way to suggest that a witness is untruthful involves showing actual
convictions.
o 609(a)(2)  Crimes for dishonesty – no balancing – automatically comes in
 doesn’t matter whether felony or misdemeanor.
o 609(a)(1) when witness is NOT criminal defendant 

(1) the cross-examiner can ask about convictions for crimes
punishable by death or imprisonment in excess of one year,
(usually these are felonies) but such convictions can be used to
impeach a defendant in a criminal trial only if probative value
outweighs their prejudicial effect.

Balancing test!

If the crime is one of dishonesty, doesn’t matter whether felony or
misdemeanor  automatically comes in (no balancing).

If the crime is NOT one of dishonesty, felony crimes are what can
come in. For a crime punishable by death or imprisonment for
year  what is the balancing test that is used?

For felony – has to admitted subject to 403 (civil or
criminal case/NON-criminal D)  presumption of
admission unless it can be shown that probative value is
substantially outweighed by the danger of unfair
prejudice.

What if Witness = CRIMINAL D in a criminal case?

Balancing Test!
o Admitted is probative value outweighs its
prejudicial effect (weak presumption of
exclusion).
o Probative Value VS. Prejudicial

Highly Prejudicial 

Past conviction is viewed as highly prejudicial if the prior
conviction is for exactly the same crime being charged
now.

Prejudice for Non-party witness testifying for D in criminal
Prosecution 

The prejudice that counts here is the prejudice to the D,
not the witness.

If the prior conviction is offered it might unfairly
prejudice the D, unfair harm to the party who is calling
the witness?

Probative Value of Prior conviction 

Most Probative = crimes of dishonesty, forgery,
embezzlement, lying on tax returns  automatically
comes in, no balancing test.

Middle Category = Where you steal stuff; larceny,
burglary, sneak around and steal stuff  viewed as
relatively probative, so when doing balancing, would be
considered pretty probative.

Least Probative = violent crimes (drugs, crimes that
don’t involve dishonesty but may involve horrible
conduct, but don’t involve dishonesty  viewed as not
probative, so when balancing, probably would stay out.

Courts also look at: Did the witness take the stand before they
were convicted? 
o

33

o
The jury is implicitly saying they don’t believe what the
D said on the stand and is in effect a liar (highly
probative).
o If witness took the stand (punished for taking
stand); conviction after you testified  jury
found you lied.
609(b)  Limit on Using the Evidence After 10 Years (age of conviction)  if
crime is MORE than 10 years old)

Applies if more than 10 years have passed since the witness’s
conviction or release from confinement for it.

Evidence of the conviction is admissible ONLY IF:

Balancing Test  probative value substantially
outweighs its prejudicial effect. AKA OPPOSITE OF 403.
o Strong presumption of exclusion.
Balancing Test Hypo 

D is prosecuted for robbing a bank. P puts on a witness, and Defense puts on 2 witnesses: a non-D and a D (all 3
witnesses had prior conviction for robbing a bank within the past 5 years). NOTE: age of conviction is not a concern
in this problem.

Use of character witnesses
o Third way of suggesting lack of veracity is to introduce testimony by a
character witness that the witness in question is untruthful.
o 609 authorizes testimony of this sort.
o Using character for dishonesty on the stand is allowed, there is an exception
to the rules against character evidence.

404(a)(3)  Exceptions for a Witness  Evidence of a witness’s
character may be admitted under 607, 608, and 609.
o 608(a)(1)  A witness’s credibility may 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 (opinion or reputation).
o You don’t have to wait for the door to be opened, you can just bring it in.
o Character evidence for determining the witness’s character for being
truthful (a specific kind of evidence)  ONLY admissible after the witness
has been attacked.
(22)  Impeachment: Specific Impeachment


Trying to show that a given statement (specific statement) that the witness has made should not be believed.
2 kinds:
o (1) Prior Inconsistent Statement 

801(d)(1)  under oath in proceeding comes in for truth of the matter asserted, can come in on
cross not for substance.

How do you impeach by a prior inconsistent statement?

Governed by 613  cross-examining attorney can, out of the blue, just ask about the
prior inconsistent statement (aka just spring it on them).

Adversary can then request to see a copy of the source of the purported statement
but allowed to just pop the PIS on the witness during cross-examination.

613(b) – extrinsic evidence is allowed ONLY if the witness has been given an
opportunity to explain or deny the statement.
o (2) Impeachment by Contradiction

You say something now, but we aren’t going to believe you because you said something
different before.
(23)  Opinion & Expert Testimony: Law Opinion and Expert Witness
Lay Opinion Testimony

701. Opinion Testimony by Lay Witnesses
34
o
o
o
o
Before FRE, a lay witness was prohibited from giving opinion testimony.
Modern approach  it is ok to give an opinion as a lay witness if it is: rationally based on the witness’s
perception, helpful to clearly understanding the witness’s testimony or to determining a fact in issue, and
not based on scientific, technical, or other specialized knowledge within the scope of 702. (informed
opinion)
Doesn’t matter that a lay opinion may determine an ultimate issue in the case.

Example: “Is D the murderer?” It is ok for a witness to say “yes, the D was the murderer.” 
704(a) embraces ultimate issue.
An identification of somebody based on a guess is not rationally based on the witness’s perception  it is
a guess, based on chance  not appropriate testimony.
Expert Witness

Expert testimony is the subject of Rules 702-706 (part of 704 also applies to lay witnesses).

702 is the basic provision, and the ensuing four provisions deal with important aspects of expert testimony.
o (1) Qualified Expert  a witness must qualify as an expert to be able to testify as such.

702 refers to a witness “qualified as an expert” through “knowledge, skill, experience, training,
or education.” It is only such persons who can give “opinion” testimony on “scientific” or
“technical” matters or offer “specialized knowledge.”
o (2) Helpfulness Standard  When can Experts testify?  an expert may provide opinion testimony under
702 only if it would “help the trier of fact” understand the evidence or determine a fact.

Judge will decide whether or not expert testimony would be helpful. If judge decides the expert
testimony would be helpful, the second thing to do is to qualify the witness. (Voir Dire Process)
 the lawyer offering the witness has to ask the witness questions to make sure the witness
qualifies.
o (3) Reasonable Reliance Standard  Often experts testify on the basis of personal knowledge. Unlike lay
witnesses (who much have such knowledge), 703 allows experts to rely on hearsay and other material,
provided that other experts in the field “would reasonably rely” on such information.

The Bases of Expert Testimony  703 lets an expert testify on the basis of facts or data of 3
sorts:

(1) Facts or data that he learns by firsthand observation beforehand,
o Personal knowledge (firsthand experience)(personally observed)

(2) Facts or data that he learns at the trial or hearing itself,
o Testimony heard by the expert witness while sitting in the courtroom
listening to other witnesses before taking the stand himself,
o Information conveyed in hypothetical questions summing up evidence
previously admitted.
o Facts the expert is made aware of at the trial.

(3) Outside facts or data, meaning information he gleans before trial by consulting
other sources, provided that they are the kinds of data on which experts in the field
would “reasonably rely.”
o Information experts reasonably rely on in this field.
o A doctor could base their opinion on some medical treatise/volume.

What if bases of testimony would be otherwise inadmissible on their own? 703 – facts or data
that would otherwise be inadmissible, the proponent may disclose to jury only if the probative
value substantially outweighs prejudicial effect (opposite of 403) (403 is a presumption of
admission; this is a presumption of exclusion)
o (4) Mental State Restriction 704(b)  experts may NOT give opinion testimony that the accused “did
nor did not have a mental state or condition that constitutes an element of the crime charged or a
defense.”

704(b) bars experts in criminal trials from stating opinions that defendant had or lacked a
mental state or condition “constituting an element of the crime charged or of a defense.”
o (5) Stating Opinion Directly  705  an expert MAY provide opinion testimony “without first testifying to
the underlying facts,” which represents a purposeful departure from the conventions that generally
attend the presentation of testimony.
o (6) Court Appointment  706  a court may appoint an expert witness, on its own motion or on request
by a party.
o Technical Issues 

Experts cannot give things that make legal conclusions
35

Expert can’t give a legal conclusion on an ultimate issue (704(b))  psychiatrist cannot testify in
a criminal case about whether the D did or did not have a mental state or condition that
constitutes an element of the crime charged or defense (couldn’t say someone is insane – it is
an ultimate issue that is off limits).
Scientific Testimony

(7) Reliability Standard 
o For Scientific and Other Technical Evidence

Old Standard  Frye Standard  courts required evidence offered as science to satisfy a
standard  such evidence (peer review journals) must be “generally accepted” in the pertinent
scientific community.

Supreme Court decided Daubert, discarding Frye for federal courts in favor of a more flexible
approach that was still designed to insure the reliability of scientific evidence.

Supreme Court decided Kumho Tire, extending Daubert standard to ALL expert testimony
presenting technical or specialized material.

702 was amended so it formally requires expert testimony to rest on sufficient facts or data,
reflect reliable principles and methods, and reliably apply these principles and methods.
o Daubert v. Merrell Dow Pharmaceuticals 

Throughout, a judge assessing a proffer of expert scientific testimony under 702 should also be
mindful of other applicable rules.

703 provides that expert opinions based on otherwise inadmissible hearsay are to be
admitted only if the facts or data are “of a type reasonably relied upon by experts in
the particular field in forming opinions or inferences upon the subject.”

706 allows the court at its discretion to procure the assistance of an expert of its own
choosing.

403 permits the exclusion of relevant evidence “if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading
the jury.

(1) Scientific testimony must be reliable – judge has to decide themselves

Factors in determining reliability
o Whether the science is generally accepted?
o Whether it can be (and has been) tested?
o Known or potential rate of error?
o Subject to peer review and publication?

(2) Scientific evidence has to be fit (used for the appropriate purpose)

(3) No prejudice from the science (remember 403)
o Standard of review that some scientific evidence should not be the subject of expert testimony (it is
appealed) --- what is the standard of review on appeal? No deference to trial judge, court of appeals just
decides it on their own.
(24)  Judicial Notice




When judge/jury considers facts that no one has put into evidence.
Process by which a court determines certain matters without formal proof.
Covers 4 areas:
o (1) adjudicative facts – ONLY type governed by 201;
o (2) Evaluative facts  include matters of common knowledge that judges, and jurors bring to their
deliberations
o (3) Legislative facts  considered by a trial or appellate court in ruling on questions of law; deciding legal
issues in the case
o (4) Law  refers to the process by which the court determines controlling law
Adjudicative Facts
o ONLY type governed by 201.
o Facts that would normally have to be proved in court.
o Standard: a fact that is not subject to reasonable dispute because: (1) it is generally known, OR (2) can be
accurately and readily determined from sources whose accuracy cannot reasonably be questioned
(indisputable source).
36
201(c)  the judge may take judicial notice on its own, OR if a party requests it and the court is supplied
with the necessary information.
o TIMING  201(d)  the court may take judicial notice at any stage of the proceeding.
o Government of the Virgin Islands v. Gereau 

Basis for appropriate judicial notice  indisputable sources but “generally available”

RULE  judges may not base judicial notice on personal knowledge
o 201 does NOT require a party to notify an opposing party that judicial notice is requested of a particular
matter at trial.
o Does 201 require a court to notify (advance notice) parties prior to taking judicial notice on its own
motion?

No, but court must allow party an opportunity to be heard.

201(e)  if party wants JN, or judge just takes it on their own, the other side is allowed to be
heard.
o Judicial notice is mandatory under 201(c) on request by a party if the court is “supplied with the necessary
information.”
Judicial Notice in Criminal Cases
o 201 distinguishes between civil and criminal cases.

In civil – jury is required to accept as conclusive the judicial notice; it is not the case in criminal
cases.

201(f)  in criminal cases a judicial notice instruction does not bind the jury (instruct the jury
they may or may not take the judicial notice fact as conclusive)
o United States v. Jones 

D was convicted of unlawful interception of interstate telephonic communications; jury found D
guilty on 3 counts.

Posttrial judicial notice would violate 201(f) by preventing the jury from considering the issue.

Can’t be judicial notice on appeal in criminal case  taking jury out of loop and denying the jury
the right to nullify on a certain issue.

Can have judicial notice on appeal in civil case though
Evaluative Facts
o Facts known to the jury which are used to consider and evaluate evidence introduced at trial.
Legislative Facts
o Facts used by a court to make a legal ruling.
o Muller v. Oregon 

Court found a rational basis for statute limiting the amount of hours women could work.
o Houser v. State 
Judicial Notice of Law
o




(25)  Best Evidence Rule
The Rules:

1001: Definitions

1002: Requirement of the Original  codifies the common law BE & extends it to recordings and photographs

1003: Admissibility of Duplicates  general admissibility of duplicates

1004: Admissibility of Other Evidence of Context

1005: Copies of Public Records to Prove Content





Litigants have a natural incentive to offer the most direct, reliable, and persuasive evidence they can find to satisfy
their allocated proof burdens.
Main exception – the place where there is a rule of preference  arises in proving the contents of writings.
Common law tradition long included a requirement to offer the original writing whenever the purpose was to prove
its contents, or at least to explain in a satisfactory way why the original was not being offered.
This rule precludes proof of the terms of a writing not only by testimony, but also by a copy (even if reliable), unless
the original is unavailable through no fault of the party seeking to prove its content.
o Known as the Best Evidence Doctrine.
1002 not only codifies the common law Best Evidence rule but extends it to recordings and photographs.
37








1003 significantly qualifies the Best Evidence Doctrine by making “duplicates” generally admissible in lieu of
originals.
1005 prevents disruption of public recordkeeping systems by allowing litigants to submit a copy rather than an
original of a public record; but there must be either testimony or a certification that the copy is accurate.
o
This requirement effectively qualifies, at least for public records, the broad statement in 1003 that
duplicates are generally admissible without a certification.
“1002 escape clause”  1004(d)  dispenses with the requirement of producing the original when the writing,
recording, or photograph is “not closely related to a controlling issue.”
o Don’t have to have the original, can have testimony, if the document is some little side show (collateral).
o “Collateral” writings

Witness can refer to newspaper in explaining why he knows date of event because next day he
saw newspaper account of event and made mental note of date.
Problem 14-A.  The Defamatory Letter
Defining a “Writing, Recording, or Photograph”
o United States v. Duffy 

Duffy asks whether the BED applies to inscribed chattels. Whether an inscription is a “writing”
can also arise if a witness testifies to the number on a car’s license plate, or the number on a
police officer’s badge, words on a traffic sign, the odometer reading on a car service sticker, etc.
o Even if the BED applies, courts can excuse nonproduction under the collateral writing exception of
1004(d) if the inscription is tangential to the dispute.
Defining an “Original”
o 1001(d)  Definition of an “original”
o Original does not necessarily mean the FIRST writing, recording or photograph that was made, but rather,
refers to the writing, recording, or photograph that is at issue in the litigation.

AKA, a copy could be an original if it is the writing or recording of significance in the litigation.
o Problem 14-B.  The Unprivate Physician
o To decide which of several writings “is the original,” (ex. If photocopy of carbon copies is original) one
must consider the elements of the charge, claim, or defense, the intention of the parties, surrounding
circumstances, the use to which the writing in question was put, and the purposes of the offering party.

EX: photocopies of customer’s carbon copies of Master Charge receipts were “originals” when
they were submitted in support of false claim for travel expense.
o Why is it usually easy to satisfy the BED when it comes to photographs?  1004(d) an original of a
photograph “includes a negative or print from it.”
Use of Duplicates
o Modern technologies/machines  1003 permits the use in evidence of any “duplicate” without need to
make excuses for nonproduction of the original under 1004.
o 1001(e) defines “duplicate” to mean essentially a machine-made copy, and not handmade copies.
o Rule 1003 contains two escape clauses  duplicates are freely admissible, with 3 exceptions:

Permitting the exclusion of duplicates when concerns arise over “authenticity of the original” ;
or

Under circumstances it would be “unfair to admit the duplicate” ; or

Handwriting.
o 1008  allocates to the jury the responsibility of determining whether “(a) an asserted writing ever
existed; (b) another one produced at the trial or hearing is the original; or (c) other evidence of content
accurately reflects the original.”
o Problem 14-C.  “There was Never Such an Original”
o Problem 14-D.  Nine Hours or One?
The Best Evidence Doctrine In Operation
o Problem 14-E.  The XXX-Rated Movies
o Problem 14-F.  The Surveillance Photograph
o Meyers v. United States 
o Problem 14-G.  The Recorded Conversation
o Problem 14-H.  The Sick Chickens
o Problem 14-I.  Cash Payment
o Problem 14-J.  The Unreported Burglary
(26)  Privileges
38
INTRODUCTION:

Other rules promote fact finding (i.e., hearsay rule – prevent unreliable hearsay testimony, better to exclude certain
kinds of out of court statements because they are not reliable) and efficiency.

Privilege rule aren’t to improve the trial or fact finding, it is to further goals outside the courtroom (aka protect
certain relationships and values, even if protection imposes significant costs on litigation.

They impede the search for truth by excluding evidence that may be highly probative.
Attorney-Client Privilege

Covers confidential communications between attorney and client, but does not cover ALL communications by all
lawyers and all clients, it is more narrow than that.
o What does it cover?

Communications between a client and lawyer involving legal services, and they have to be
confidential.

Accounting/tax preparation services? Probably not covered by the privilege.

What if you hire a lawyer to do accounting because you don’t trust your spouse and hire him to
investigate? Not covered because not legal services.
o Examples:

Suppose client tells the lawyer that he ran the red light, and the adversary in a deposition asks
“did you run the red right?” You do answer, the ACP covers the communication, not the
underlying fact or facts reported in the communications. The adversary would be allowed to ask
if they ran the red light and the client would have to answer truthfully. HOWEVER, the adversary
cannot ask if the client told the lawyer (protected by privilege)

Suppose there is a document that is not covered by privilege (not a communication between
lawyer and client) and then once the client has been sued, the client mails the document to the
lawyer. Then the adversary seeks discovery of the document. CANNOT cover it with privilege 
just merely mailing an unprivileged document to a lawyer doesn’t make it privileged.

What about a cover memo of the document that client gives to attorney and the
adversary asks for a copy of the memo. The cover memo would be covered by
privilege, the underlying document would not.
o Holder  A privilege has a holder; only a holder has the ultimate power to assert or waive the privilege.
o Waiver 

EX: IF a client had voluntarily gone to lawyer and said “it was me who did it, not your client.” It
would waive the privilege. But if a lawyer of the guilty client tells another lawyer, it does not
waive the privilege.

You have to determine who holds the privilege.

Normally in ACP the holder of privilege is client, not the attorney. Aka attorney would
not be able to waive the privilege.
o Communications

What if someone comes into lawyers office covered in blood with gashes, and then lawyer was
asked in a criminal prosecution to testify about the appearance of the client when they came
into the office. The appearance of the client is not covered by privilege, it is not a
communication, just an observation of what the lawyer saw the client as (not repeating anything
the client told the lawyer). It is also not confidential – his appearance is observable to the public.

Client walks into lawyer’s office, looks normal, then takes off his shirt and there was a huge
cash. In a criminal prosecution, lawyer is asked to testify about the client in the office. COVERED
– the body language/behavior of the client was intended to be a communication (“my arm is
now gashed”).
o Confidentiality
o Corporate Client

EX: If there is a lawyer for Apple, who is considered the client?

Who do they mainly talk to? Officers and directors? Does it extend to everyone in the
corporation?

Upjohn Co. v. United States 

Evidence Review
FORMAT: All MCQs and T&F, all questions will come from book and examples in class
39
Study cases!!!!
Hearsay
2-step analysis (1) whether something is hearsay or not? (2) if it is, does a hearsay exception apply?
T or F, hearsay is always inadmissible – FALSE.
Hearsay exceptions in 801(d) – hearsay exceptions
Whether a statement is hearsay, and if it is, whether it fits in an exception, one of the sets of exceptions is 801(d).
404(a)(2) criminal D opening the door, offers evi to show character witness is a peaceful person
What kind can a criminal D offer? Reputation or opinion about their character, not specific acts.
What if criminal D puts on character witness that offers opinion evi? Prosecutor can put on character witness with their own
opinion about D, the prosecutor can also cross examination D’s character witness and offer specific acts. Prosecutor is trying to
attack credibility about character witness.
404(b) situations where certain kinds of character evidence can come in, and it does operate in criminal cases. Same evidence
rules in general for criminal cases and civil cases.
600 rules – impeach witness, dealing with truth.
40