EVIDENCE OUTLINE
Why have federal rules of evidence? We want to 1) Reign in the parties in an adversary system; 2) We don’t fully
trust juries; 3) Time is short; 4) We want people to consult attorneys and we want those relationships protected.
I. GENERAL PROVISIONS
FRE 103. Rulings on Evidence.
(a) Effect of Erroneous Ruling. Error may not be predicated upon a ruling which admits or excludes
evidence unless a substantial right of the party is affected, and
(1) Objection. In case the ruling is one admitting evidence, a timely objection or motion to strike
appears of record, stating the specific ground of objection, if the specific ground was not apparent
from the context; or
(2) Offer of proof. In case the ruling is one excluding evidence, the substance of the evidence
was made known to the court by offer or was apparent from the context within which questions
were asked.
Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before
trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.
(b) Record of Offer and Ruling. The court may add any other or further statement which shows the
character of the evidence, the form in which it was offered, the objection made, and the ruling thereon. It
may direct the making of an offer in question and answer form.
(c) Hearing of Jury. In jury cases, proceedings shall be conducted, to the extent practicable, so as to
prevent inadmissible evidence from being suggested to the jury by any means, such as making statement or
offers of proof or asking questions in the hearing of the jury.
(d) Plain Error. Nothing in this rule precludes taking notice of plain error affecting substantial rights
although they were not brought to the attention of the court.
A. Hard to Win Reversals: It is difficult to win reversals because of FRE 103(a), not only must the
objection be made but a substantial right must have been affected. Reversals are rare and much deference
is given to lower courts.
FRE 104. Preliminary Questions.
(a) Questions of admissibility generally. Preliminary questions concerning the qualification of a person
to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the
court, subject to the provisions of subdivision (b). In making its determination it is not bound by the rules
of evidence except those with respect to privileges.
A. Questions for the Court: 104(a) deals with questions for the court, using a preponderance of the
evidence standard to even admit the evidence.
(b) Relevancy Conditioned on fact. When the relevancy of evidence depends upon the fulfillment of a
condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to
support a finding of the fulfillment of the condition.
B. Questions for the Jury: 104(b) deals with questions for the jury; once the judge has concluded that there
is a condition of for an offered item, the judge will admit it.
(c) Hearing of jury. Hearings on the admissibility of confessions shall in all cases be conducted out of the
hearing of the jury. Hearings on other preliminary matters shall be so conducted when the interests of
justice require, or when an accused is a witness and so requests.
(d) Testimony by accused. The accused does not, by testifying upon a preliminary matter, become
subject to cross-examination as to other issues in the case.
(e) Weight and credibility. The rule does not limit the right of a party to introduce before the jury
evidence relevant to weight or credibility.
II. RELEVANCY (Preliminary Question 401)
FRE 401. Definition of “Relevant Evidence”
“Relevant evidence” means evidence having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than it would be without the
evidence.
A. Relevance: Despite the fact that according to Wigmore, “the law establishes no test of
relevancy,” the inferential chain helps in deciding. Relevancy begins the process of admitting
evidence (though it does not end there, certainly). To be relevant, the evidence must have
probative force. There is a relatively minimal test for relevancy. As Weinstein and Berger say,
relevance of evidence is determined by whether the evidence could influence a reasonable juror or
jury. The jury must use generalizations to make such a conclusion. [Knapp v. State: Trial court
was right in allowing testimony that tended to disprove a fact that the defendant contended, “it
must at least be said that the testimony complained of had a tendency to render his claim as to
what he heard less probable.]
1) Relevant, But Not Necessarily Sufficient: Furthermore, just because evidence is
relevant does not mean that the evidence is sufficient to support a verdict: “A brick is not
a wall.” Additionally, the evidence may be relevant even if its is not certain. Many items
of evidence must be shown to prove or disprove the claim.
EF
(Evidentiary Fact)
The evidence
offered in court.
IF
(Inferred Fact)
The fact the jury
believes. (Evidence
could be false)
Probative Connection
FOC
(Fact of Consequence)
The fact that the jury concludes
after viewing the evidence
is more (or less) probable.
EE
(Essential Element)
The element needed to
satisfy (or not) the claim.
B. Direct Evidence: Direct Evidence is evidence in which
EF
IF (very little needed, just truth of the evidence needed)
FOC.
As long as the jury believes the evidence fact, then the evidence is an element.
C. Circumstantial Evidence: Circumstantial evidence requires a longer inferential claim. Though
direct evidence also requires the fact-finder to make inferences, circumstantial requires more.
EF
IF (many inferences may be needed)
FOC
FRE 402. Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible
All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States,
by Act of Congress, by these rule, or by other rules prescribed by the Supreme Court pursuant to statutory
authority. Evidence which is not relevant is not admissible.
FRE 403. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time
Although relevant evidence may be excluded if its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue
delay, waste of time, or needless presentation of cumulative evidence.
A. Probative Value: Probative Value is a measure of the evidence’s ability to make the fact of
consequence more or less likely. The court will consider a piece of evidence’s probative value
based on the a) strength of the underlying inferences, the b) certainty of the evidence itself,
and c) need for the evidence.
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– Trial Dangers Must Substantially Outweigh Probative Value–
B. The Dangers (Trial Concerns): Relevant evidence will not be allowed if one of the six dangers
outweighs the probative value. The burden is on the party seeking the exclusion to show that a)
the danger(s) substantially outweighs the evidence’s probative value and b) the exclusion will
prevent an adverse affect on a party’s substantial right. If so, the court could give an FRE 105
limiting instruction. [U.S. v. Hitt: There was little probative value to photograph of defendant’s
gun taken along with pictures of other guns that did not belong to the defendant, furthermore,
extreme 403 dangers of photograph]. Hitt court a little too extreme though in excluding evidence
with little probative value because of little risk of misleading jury. [Old Chief: “[T]he prosecution
is entitled to prove its case free from any defendant’s option to stipulate the evidence away rests
on good sense.” Evidence will not be excluded for relevant purposes outside of what defendant
opposing party stipulates. Thus, essentially, offering wide stipulation will not keep evidence out.]
1) Unfair Prejudice: Evidence may bring unfair prejudice if it might lead the jury to
make a decision based on a) emotions such as outrage, disgust or sympathy. Also, the
danger of unfair prejudice excludes evidence which b) might be used to make an
inference prohibited by other evidence rules.
2) Confusion of the Issues: Evidence which leads to confusion of the issues may lead the
jury to consider collateral issues that may have little to do with the essential elements of
the case. Rather than focusing on the real issue(s), the evidence sidetracks the jury’s
attention. Evidence which elicits confusion of the issues will be excluded if such
confusion outweighs the probative value of the evidence.
3) Misleading the Jury: Evidence which misleads the jury may lead the jury to draw a
mistaken inference. Evidence such as polygraphs or reenactments may lead to a
mistaken inference if the evidence is taken out of context, given too much persuasive
force, or lacks statistical or scientific validity.
4) Undue Delay and Waste of Time: Evidence that leads to undue delay or wastes time
will be excluded if it does just that.
5) Needless Presentation of Cumulative Evidence: Evidence will be excluded if it
essentially is just being shown repetitively. However, evidence may not be excluded
solely to avoid delay.
FRE 105. Limited Admissibility.
When evidence which is admissible as to one party or for one purpose but not admissible as to another
party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper
scope and instruct the jury accordingly.
A. Limiting Instruction: The party offering the limiting instruction moves to have instructions read which
“limit” the jury’s use of certain evidence.
1) Given If FRE 403 Danger: If there’s a FRE 403 danger, then the limiting instruction should be
allowed so the evidence will not be used by the jury in an improper way.
2) Danger of a Limiting Instruction: The party seeking that certain evidence be viewed by the
jury under a limiting instruction still may not want a limiting instruction because such an
instruction may emphasize or highlight potentially damaging evidence. Furthermore, jurors may
think that a piece of evidence is relevant despite what the judge has instructed them. Finally, the
jury may not like being limited in its analysis.
III. WITNESS COMPETENCY (Preliminary Questions 601, 602)
FRE 601. General Rule of Competency
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Every Person is competent to be a witness except as otherwise provided in these rules. However, in civil
actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the
rule of decision, the competency of a witness shall be determined in accordance with State law.
A. Competency: At common law, there were many different categories of people considered
incompetent to testify. The FREs have abolished such a broad abolition of categories, however.
Yet when state law is governing in federal court, then a state category of incompetency will be
used. Problems with a witness’ competency are often dealt with as either FRE 403 matters or the
like at the discretion of the court or as matters of credibility for the jury. There is a generally very
low standard for competency, designed to get evidence in to court.
FRE 602. Lack of Personal Knowledge
A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the
witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not,
consist of the witness’ own testimony. This rule is subject to the provision of FRE 703, relating to opinion
testimony by expert witnesses.
A. Personal Knowledge: A witness must have personal knowledge of the matter in order to testify
about it. This personal knowledge must be “sufficient to support a finding” and is made
sufficient by having the witness testify that they saw, heard or perceived the matter. There is a
generally low standard for personal knowledge, designed to get evidence in. In order to be
sufficient to support a finding, the evidence must be a fact on which the court thinks a jury could
reasonably find the fact of consequence more or less likely.
FRE 603. Oath or Affirmation
Before testifying, every witness shall be required to declare that the witness will testify truthfully, by oath
or affirmation administered in a form calculated to awaken the witness’ conscience and impress the
witness’ mind with the duty to do so.
IV. AUTHENTICATION AND IDENTIFICATION OF EXHIBITS (Preliminary Question (901)
FRE 901. Requirement of Authentication or Identification
(a) General Provision. The requirement of authentication or identification as a condition precedent to
admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its
proponent claims.
A. What the Exhibit Is: According to FRE 901(a), the proponent of the exhibit must first offer what the
exhibit is, articulating its connection to the case.
B. Evidence Sufficient to Support a Finding: Then, according to FRE 901(a), the proponent of the exhibit
must produce evidence or additional proof that the evidence is what it is. As with FRE 602, the proponent
must submit evidence “sufficient to support a finding.” The judge will make such a decision by looking at
the probative value. Authentication and identification concerns situations in which testimony is not offered
but exhibits – exhibits cannot be cross-examined.
(b) Illustrations. By way of illustration only, and not by way of limitation, the following are examples of
authentication or identification conforming with the requirements of this rule:
(1) Testimony of witness with knowledge. Testimony that a matter is what it is claimed to be.
(2) Nonexpert opinion on handwriting. Nonexpert opinion as to the genuineness of
handwriting, based upon familiarity not acquired for purposes of the litigation.
(3) Comparison by trier or expert witness. Comparison by the trier of fact or by expert
witnesses with specimens which have been authenticated.
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(4) Distinctive characteristics and the like. Appearance, contents, substance, internal patterns,
or other distinctive characteristics, taken in conjunction with circumstances.
(5) Voice identification. Identification of a voice, whether heard firsthand or through mechanical
or electronic transmission or recording, by opinion based upon hearing the voice at any time under
circumstances connecting it with the alleged speaker.
(6) Telephone conversation. Telephone conversations, by evidence that a call was made to the
number assigned at the time by the telephone company to a particular person or business, if (A) in
the case of a person, circumstances, including self-identification, show the person answering to be
the one called, or (B) in the case of a business, the call was made to a place of business and the
conversation related to business reasonably transacted over the telephone.
(7) Public records or reports. Evidence that a writing authorized by law to be recorded or filed
and in fact recorded or filed in a public office, or a purported public record, report, statement, or
data compilation, in any form, is from the public office where items of this nature are kept.
(8) Ancient documents or data compilation. Evidence that a document of data compilation, in
any form, (A) is in such condition as to create no suspicion concerning its authenticity, (B) was in
a place where it, if authentic, would likely by, and (C) has been in existence 20 years or more at
the time it is offered.
(9) Process or system. Evidence describing a process or system used to produce a result and
showing that the process or system produces an accurate result.
(10) Methods provided by statute or rule. Any method of authentication or identification
provided by Act of Congress or by other rules prescribed by the Supreme Court pursuant to
statutory authority.
C. Laying the Foundation: FRE 901(b) establishes examples of ways that the proponent can lay the
foundation and show that the evidence is sufficient to support a finding. As in the Advisory Committee’s
Notes, (1) is supportive of a broad spectrum of testimony; (2) is the conventional doctrine to establish
familiarity with handwriting; (5) is concerned with familiarity; (7) public records are regularly
authenticated just by proof of custody; see FRE 901 below.
1) Real Evidence: Real Evidence is evidence which had some role in the litigated events, for
example the weapons in a crime or the home appliance that is allegedly defective. Such evidence
is identified and authenticated through a readily identifiable characteristic such as a unique
design or a fingerprint. Or identification could be established through the chain of custody,
however a complete chain of custody is not always necessary but big gaps in the chain may hurt
the relevance or even admissibility. The purpose of real evidence is to allow the fact-finder an
opportunity to draw a relevant first hand sense impression.
2) Demonstrative Evidence: Demonstrative evidence is evidence that reproduces or depicts
objects that are connected to the litigated events, such as models, diagrams, drawings or
photographs and is identified by witness saying what it is, as in real evidence. The content of
the evidence is connected to the case and assists the trier of fact in its deliberations. Despite the
identification, in laying the proper foundation, the proponent of the evidence must be prepared to
show that the evidence is “fair,” “accurate” or “true” depiction of what it is claimed to portray.
a) 403 Danger: If there is a 403 danger the judge may disallow or issue a limiting
instruction, for example with With recorded simulations and animations
FRE 902. Self-Authentication
Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to
the following:
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A. Extrinsic Evidence of Authenticity Not Needed: Under FRE 902, extrinsic evidence is not needed
because practical considerations reduce the possibility of unauthenticity to a very small dimension. There
is a generalization to the following that someone has already paid attention to the genuineness. However,
the opposing party can still always dispute the authenticity. Yet (3) requires official certifications to be
self-authenticating; (7) realizes that there are serious penalties for trademark infringement, etc.
(1) Domestic public documents under seal. [See rule].
(2) Domestic public documents not under seal. [See rule].
(3) Foreign public documents. [See rule].
(4) Certified copies of public records. [See rule].
(5) Official publications. [See rule].
(6) Newspapers and periodicals. [See rule].
(7) Trade inscriptions and the like. [See rule].
(8) Acknowledged documents. [See rule].
(9) Commercial paper and related documents. [See rule].
(10) Presumptions under Acts of Congress. [See rule].
(11) Certified domestic records of regularly conducted activity. [See rule].
(12) Certified foreign records of regularly conducted activity. [See rule].
FRE 1001. Definitions
For purposes of this article the following definitions are applicable:
(1) Writings and recordings. “Writings” and “recordings” consists of letters, words, or numbers,
or their equivalent, set down by handwriting, typrewriting, printing, photostating, photographing,
magnetic impulse, mechanical or electronic recording, or other form of data.
(2) Photographs. “Photographs” include still photographs, X-ray films, video tapes, and motion
pictures.
(3) Original. An “original” of a writing or recording is the writing or recording itself or any
counterpart intended to have the same effect by a person executing or issuing it. An “original” of
a photograph includes the negative or any print therefrom. If data are stored in a computer or
similar device, any printout or other output readable by sight, shown to reflect the data accurately
is an “original.”
(4) Duplicate. A “duplicate” is a counterpart produced by the same impression as the original, or
from the same matrix, or by means of photography, including enlargements and miniatures, or by
mechanical or electronic re-recording, or by chemical reproduction, or by other equivalent
technique which accurately reproduces the original.
FRE 1002. Requirement of Original
To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph
is required, except as otherwise provided in these rules of by Act of Congress.
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A. The Best Evidence Rule: The “Best Evidence Rule” is the compilation of several rules (FRE 1001-1007)
that has a simple premise: the original of the contents of a writing, recording or photograph is generally
more trustworthy than a copy because of the fallibility of memory, the hazards of duplication, etc. FRE
1002 best summarizes the rule. However, the rule does not extend beyond writings, recordings, or
photographs.
1) Best Evidence Rule (Goldwasser) Summarization: To prove the contents of a non-collateral
and thus legally operative writing, recording or photograph, (defined in FRE 1001 (1) & (2)), the
proponent of the evidence must produce the original (defined in FRE 1001(3)) or satisfactorily
account for the absence of the original (FRE 1004 (1)-(3)). If indeed the proponent does not
produce the original and produces a duplicate, there must be no questions about the authenticity of
the original and it must not be unfair to admit (FRE 1003).
Nonetheless, there is more flexibility towards public records, summaries and when the
content has been admitted by the opposing party in testimony.
a) Rule Only Applies to Contents: The Best Evidence Rule does not apply to facts that
are not the contents of the writing, recording or photograph.
FRE 1003. Admissibility of Duplicates
A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the
authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of
the original.
A. Duplicates Generally Admissible Unless…: Duplicates are generally admissible if they have been
properly authenticated. However, they will be excluded if the authenticity is disputed or if incompleteness,
erasures, defects, etc, make the copies unfair to admit.
FRE 1004. Admissibility of Other Evidence Contents
The original is not required, and other evidence of the contents of a writing, recording, or photograph is
admissible if –
(1) Originals lost or destroyed. All originals are lost or have been destroyed, unless the
proponent lost or destroyed them in bad faith; or
(2) Original not obtainable. No original can be obtained by any available process or procedure.
(3) Original in possession of opponent. At a time when an original was under the control of the
party against whom offered, that party was put on notice, by the pleadings or otherwise, that the
contents would be a subject of proof at the hearing, and that the party does not produce the
original at the hearing; or
(4) Collateral matters. The writing, recording, or photograph is not closely related to a
controlling issue.
A. Original Not Required: The original will not be required if it has been lost or destroyed, is not
obtainable, the opposing party won’t give it up, or it deals with collateral matters (matters that are not
relevant as legally operative facts).
FRE 1005. Public Records
The contents of an official record, or of a document authorized to be recorded or filed and actually recorded
or filed, including data compilations in any form, if otherwise admissible, may be proved by copy, certified
as correct in accordance with rule 902 or testified to be correct by a witness who has compared it with the
original. If a copy which complies with the foregoing cannot be obtained by the exercise of reasonable
diligence, then other evidence of the contents may be given.
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A. Preference for Duplicate of Public Record: There is preference for certified or compared copies of
public records.
FRE 1006. Summaries
The contents of voluminous writings, recording, or photographs which cannot conveniently be examined in
court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall
be made available for examination or copying, or both, by other parties at reasonable time and place. The
court may order that they be produced in court.
FRE 1007. Testimony of Written Admission of Party
Contents of writings, recordings, or photographs may be proved by the testimony or deposition of the party
against whom offered or by that party’s written admission, without accounting for the nonproduction of the
original.
FRE 1008. Functions of Court and Jury
When the admissibility of other evidence of contents of writings, recordings, or photographs under these
rules depends upon the fulfillment of a condition of fact, the question whether the condition has been
fulfilled is ordinarily for the court to determine in accordance with the provisions of rule 104. However,
when an issue is raised (a) whether the asserted writing ever existed, or (b) whether another writing,
recording, or photograph produced at the trial is the original, or (c) whether other evidence of contents
correctly reflects the contents, the issue is for the trier of fact to determine as in the case of other issues of
fact.
A. Most Questions to Judge: In a dispute as to administration of Best Evidence Rule, the questions go to
the court, pursuant to FRE 104(a). However, if there are specific factual issues as to the original, then such
a question is one for the jury to determine, those specified in (a), (b) and (c). As the Advisory Committee
notes, this rule insures treatment of certain situations as jury questions and prevents the premature
termination of certain cases.
V. CHARACTER AND PROPENSITY EVIDENCE
FRE 404. Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes
(a) Character evidence generally. Evidence of a person’s character or a trait of character is not
admissible for the purpose of proving an action in conformity therewith on a particular occasion, except:
(1) Character of accused. Evidence of a pertinent trait of character offered by an accused, or by
the prosecution to rebut the same, or if evidence of a trait of character of the alleged victim of the
crime is offered by an accused and admitted under FRE 404(a)(2), evidence of the same trait of
character of the accused offered by the prosecution.
(2) Character of alleged victim. Evidence of a pertinent trait of character of the alleged victim of
the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a
character trait of peacefulness of the alleged victim offered by the prosecution in a homicide case
to rebut evidence that the alleged victim was the first aggressor.
A. Criminal Cases Only: FRE 404(a) applies to criminal cases; in civil cases character evidence is not
allowed to prove action in conformity therewith.
B. Defendant Opens the Door, Prosecution May Follow: The defendant may introduce evidence pertinent
evidence of their own character or of the victim’s character. Most often, the defendant is introducing
evidence of their own good character. As soon as the defendant has introduced evidence about either their
own character, then the prosecution can introduce evidence about the defendant’s character. When the
defendant has introduced evidence about the victim’s character, the prosecution can then introduce
evidence about the victim’s character and the defendant’s character. Nevertheless, the prosecution is
limited to the same character trait that the defendant has introduced.
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C. Prosecution’s Limited Right to Open Door: The prosecution may outrightly offer evidence of a
homicide victim’s trait of peacefulness, regardless or whether the defendant has called the victim violent,
but the prosecution can do this only if the defendant has called the victim the first aggressor. This is
because the victim cannot testify – they’re dead. However, the prosecution cannot simultaneously promote
evidence about the defendant’s character.
(3) Character of witness. Evidence of the character of a witness, as provided in rule 607, 608,
609.
D. Rationale for Restricting Character Evidence: Character evidence is restricted because the inference
may be weak and have a low probative value. Furthermore, the law – not the emotions of jurors – should
decide cases. We don’t want juries to reward the “good man” and punish the “bad man.”
(b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove
the character of a person in order to show action in conformity therewith. It may, however, be admissible
for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake of accident, provided that upon request by the accused, the prosecution in a criminal
case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on
good cause show, of the general nature of any such evidence it intends to introduce at trial.
E. Prohibition of Specific Acts: The proponent of character evidence cannot offer evidence of specific acts
in order to show conformity therewith – either for good character or bad.
1) Specific Acts for Non-Character Purpose Are Allowed: Though character evidence is not
allowed to show action in conformity therewith, evidence of specific acts are allowed for noncharacter purposes. Such acts are usually offered by the prosecution against the defendant and are
admissible to show proof of motive, opportunity, etc. In order to admit this evidence, the
proponent needs to a) articulate the noncharacter purpose element for which the specific acts
evidence is offered, such as being part of the “common plan” that the defendant is charged with; b)
introduce evidence that the specific act did in fact occur; c) deal with 403 dangers (probative
value to noncharacter purpose, probative value to contested issue, risk of unfair prejudice,
effectiveness of a limiting instruction; d) provide notice to the defendant (if prosecution is offering
because of amendment to 404(b)).
F. Rationale for Restricting Specific Acts: Specific Acts are prohibited because emotions should not
decide cases, because mini-trials over the specific act would erupt and be time consuming and because
specific acts offer low probative value, furthermore opinion and reputation are relatively general and can be
dealt with with “relative dispatch.”
FRE 405. Methods of Proving Character
(a) Reputation or opinion. In all cases in which evidence of character or a trait of character of a person is
admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On
cross-examination, inquiry is allowable into relevant specific instances of conduct.
A. Reputation or Opinion Allowed: While the proponent of character evidence is prohibited from bringing
up specific acts to prove action in conformity therewith, the proponent of the character evidence can bring
in evidence of reputation of opinion. Reputation is the community’s estimate of the party, opinion is the
witness’ estimate of the person.
B. Specific Instances Allowed on Cross-Examination: When character witnesses are being crossexamined, they may bring up specific acts and arrests. This means that on direct examination the witness
will stick to reputation and opinion testimony. When on cross-ex, the witness can be asked about specific
acts to see whether the witness really knows the party, nevertheless these questions may be prejudicial and
limited by a 105 instruction or furthermore ruled 403 inadmissible (though both are rarely used). The
questions must just be for witness impeachment, nevertheless they may prejudice the defendant. The
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specific acts questions must be a) relevant to the character trait; b) acts which the witness is likely to
know about; c) based on a reasonable belief by the cross examiner that the act occurred.
(b) Specific instances of conduct. In cases in which character or a trait of character of a person is an
essential element of a charge, claim, or defense, proof may also be made of specific instances of that
person’s conduct.
C. When Character is An Essential Element of Claim or Defense: Unlike when character evidence is used
to show action in conformity, character evidence – reputation, opinion or specific acts – may be used when
the substantive law makes the character of a person an essential element of a claim or defense, such as in
defamation cases, child custody cases and some tort claims. Nonetheless, there is always a 403 concern.
VI. EVIDENCE OF SEXUAL ASSAULT AND CHILD MOLESTATION RE: DEFENDANT
FRE 413. Evidence of Similar Crimes in Sexual Assault Cases
(a) In a criminal cases in which the defendant is accused of an offense of sexual assault, evidence of the
defendant’s commission of another offense or offenses of sexual assault is admissible, and may be
considered for its bearing on any matter to which it is relevant.
(b) In a case in which the Government intends to offer evidence under this rule, the attorney for the
Government shall disclose the evidence to the defendant, including statements of witnesses or a summary
of the substance of any testimony that is expected to be offered, at least fifteen days before the schedule
date of trial or at such time as the court may allow for good cause.
(c) This rule shall not be construed to limit the admission or consideration of evidence under any other rule.
(d) For purposes of this rule and Rule 415, “offense of sexual assault” means a crime under Federal law or
the law of a State (as defined in section 513 of title 18, United States Code) that involved –
(1) any conduct proscribed by chapter 109A of title 18, United States Code;
(2) contact, without consent, between any part of the defendant’s body or an object and the
genitals or anus of another person;
(3) contact, without consent, between the genitals or anus of the defendant and any part of another
person’s body;
(4) deriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical
pain on another person; or
(5) an attempt or conspiracy to engage in conduct described in paragraphs (1)-(4)
FRE 414. Evidence of Similar Crimes in Child Molestation Cases
(a) In a criminal cases in which the defendant is accused of an offense of child molestation, evidence of the
defendant’s commission of another offense or offenses of child molestation is admissible, and may be
considered for its bearing on any matter to which it is relevant.
(b) In a case in which the Government intends to offer evidence under this rule, the attorney for the
Government shall disclose the evidence to the defendant, including statements of witnesses or a summary
of the substance of any testimony that is expected to be offered, at least fifteen days before the schedule
date of trial or at such time as the court may allow for good cause.
(c) This rule shall not be construed to limit the admission or consideration of evidence under any other rule.
(d) For purposes of this rule and Rule 415, “child” means a person below the age of fourteen and “offense
of child molestation” means a crime under Federal law or the law of a State (as defined in section 513 of
title 18, United States Code) that involved –
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(1) any conduct proscribed by chapter 109A of title 18, United States Code, that was committed in
relation to a child;
(2) any conduct proscribed by chapter 110 of title 18, United States Code;
(3) contact between any part of the defendant’s body or an object and the genitals or anus of a
child;
(4) contact between the genitals or anus of the defendant and any part of the body of the child;
(5) deriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical
pain on a child; or
(6) an attempt or conspiracy to engage in conduct described in paragraphs (1)-(4)
FRE 415. Evidence of Similar Acts in Civil Cases Concerning Sexual Assault or Child Molestation
(a) In a civil case in which a claim for damages or other relief is predicated on a party’s alleged
commission of conduct constituting an offense of sexual assault or child molestation, evidence of that
party’s commission of another offense or offenses of sexual assault or child molestation is admissible and
may be considered as provided in Rule 413 and Rule 414 of these rule.
(b) A party who intends to offer evidence under this Rule shall disclose the evidence to the party against
whom it will be offered, including statements of witnesses or a summary of the substance of any testimony
that is expected to be offered, at least fifteen days before the scheduled date of trial or at such later time as
the court may allow for good cause.
(c) This rule shall not be construed to limit the admission or consideration of evidence under any other rule.
A. Allows Admission Prohibited by 404(a) & (b): Though 404(b) does not allow specific acts, 413-415 do
allow the admission of specific acts. And though 404(a) does not allow the admission of character
evidence to show propensity or action in conformity therewith, 413-415 do allow the admission of such
evidence to prove action on a particular occasion. There is No Right to a limiting instruction.
Furthermore, some courts allow specific acts in cases that deal with sexual assault, however other courts
limit the admissible specific acts evidence to acts with the same victim.
B. Admission Subject to 403 Balancing: Regardless of the fact that 404 does not apply, the sexual
character evidence or child molestation evidence is still subject to exclusion on 403 grounds. Some courts
are very broad
C. Definition of “Offense of Sexual Assault” is Broad: Anything described in (d)(2) through (d)(5) is
sexual assault as long as such conduct is proscribed somewhere.
D. Definition of “Without Consent” is Broad: The term consent means either without actual consent and
without legal consent.
E. Rational for Admissibility of Sexual Character Evidence: a) The rationale for admission is the such
evidence has high probative value because of the nature of the crime; b) recidivism of such a crime.
However, there are tremendous dangers to 413-415, particularly concerning unfair prejudice. These rules
were enacted by Congress and did not go through the regular process.
VII. EVIDENCE OF ALLEGED VICTIM’S PAST SEXUAL BEHAVIOR
FRE 412. Sexual Offense Cases; Relevance of Alleged Victim’s Past Sexual Behavior or Alleged
Sexual Predisposition
(a) Evidence generally inadmissible. The following evidence is not admissible in any civil or criminal
proceeding involving alleged sexual misconduct except as provided in subdivisions (b) and (c):
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(1) Evidence offered to prove that any alleged victim engaged in other sexual behavior.
(2) Evidence offered to prove any alleged victim’s sexual predisposition.
(b) Exceptions.
(1) In a criminal case, the following evidence is admissible, if otherwise admissible under these
rules:
(A) evidence of specific instances of sexual behavior by the alleged victim offered to
prove that a person other than the accused was the source of semen, injury or other
physical evidence;
(B) evidence of specific instances of sexual behavior by the alleged victim with respect to
the person accused of the sexual misconduct offered by the accused to prove consent or
by the prosecution; and
(c) evidence the execution of which would violate the constitutional rights of the
defendant.
(2) In a civil case, evidence offered to prove the sexual behavior or sexual predisposition of any
alleged victim is admissible if it is otherwise admissible under these rules and its probative value
substantially outweighs the danger of harm to any victim and of unfair prejudice to any party.
Evidence of an alleged victim’s reputation is admissible only if it is has been placed in
controversy by the alleged victim.
(c) Procedure to determine admissibility.
(1) A party intending to offer evidence under subdivision (b) must:
(A) file a written motion at least 14 days before trial specifically describing the evidence
and stating the purpose for which it is offered unless the court, for good cause requires a
different time for filing or permits filing during trial; and
(B) serve the motion on all parties and notify the alleged victim or, when appropriate, the
alleged victim’s guardian or representative.
(2) Before admitting evidence under this rule the court must conduct a hearing in camera and
afford the victim and parties a right to attend and be heard. The motion, related papers, and the
record of the hearing must be sealed and remain under seal unless the court orders otherwise.
A. “Other Sexual Behavior and “Sexual Predisposition”: “Other Sexual Behavior” means, according to the
Advisory Committee, “all activities that involve physical conduct, sexual intercourse, use of contraceptives,
VD and even fantasies or dream” etc. “Sexual predisposition” means “evidence that does not directly refer
to sexual activities or thoughts but that the proponent believes may have a sexual connotation for the
factfinder” ex, dress, speech, mode. This is very broad and includes behavior on specific occasions.
1) Civil Cases: In civil cases, there is a) a reverse balancing test, rather than requiring that the
dangers substantially outweigh the probative value, thereby preferring admissibility, 412 requires
that the probative value substantially outweigh the dangers, thereby preferring exclusion; b) the
test requires that not only will the unfair prejudice be outweighed, but so too will harm to the
alleged victim (embarrassment, invasion of privacy, etc.)
2) Criminal Cases: The defendant’s evidence is admissible if it concerns a) the source of semen
or injury; b) the victim’s behavior with the defendant to suggest consent; c) when due process or
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the confrontation clause, etc, allows the defendant to present such a defense. Regardless, these
admissions are subject to 403 concerns.
B. Rationale for “Rape Shield” Laws: Rape shield laws, also enacted by Congress, exist because a)
evidence about the victim’s past sexual history has relatively low probative value to the element of
consent; Weak propensity: It is hard to go from prior sexual conduct to the fact of consequence and b) as a
policy matter, we don’t want rape victims or sexual assault victims to be afraid to testify or be on the
defense.
VIII. HABIT; ROUTINE PRACTICE
FRE 406. Habit; Routine Practice
Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not
and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or
organization on a particular occasion was in conformity with the habit or routine practice.
A. Unlike Character Evidence – Habit or Routine Practice is Relevant and Admissible: FRE 406 makes
habit or routine practice evidence relevant, thus according to FRE 402, admissible.
B. Means to Prove Habit: Habit is shown by FRE 701 lay witnesses testifying about specific acts or
opinion. Habit cannot be shown by reputation witnesses.
C. Difference Between Character and Habit: According to McCormick, a) Character has to do with a
person’s “tendency to act…in all the varying situations of life, business, family life, handling situations,
etc.” Habit has to do with the person’s “regular (or ‘semi-automatic’)practice of meeting a particular kind
of situation with a specific type of conduct.”/ it is more specific and routine than a character trait. b)
Character is generally has a moral connotation whereas Habit is generally morally neutral.
D. Rationale for Admission of Habit Evidence: a) Habit is more probative to demonstrate action on a
particular occasion; b) Habit is morally neutral, less likely to prejudice. To prove habit, proponent must
demonstrate difference between allowance of habit evidence and disallowance of character evidence. To
measure specifically if it is habit, however, as said in the Advisory Committee Notes, “Precise
standards…cannot be formulated.” Case law is very important to determine standards.
IX. EVIDENCE INADMISSIBLE TO PROVE “NEGLIGENCE,” “CULPABLE CONDUCT,” OR
“LIABILITY”
A. Rationale Behind Exclusion of Certain Evidence to Prove Liability: We do not want to discourage
individuals from engaging in socially desirable conduct. Furthermore, we do not want to punish
individuals for engaging in socially desirable conduct.
FRE 407. Subsequent Remedial Measures
When, after injury or harm allegedly caused by an event, measures are taken that, if taken previously,
would have made the injury or harm less likely to occur, evidence of the subsequent measures is not
admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product’s design, or a
need for a warning of instruction. This rule does not require the exclusion of evidence of subsequent
measures when offered for another purpose, such as proving ownership, control, or feasibility of
precautionary measures, if controverted, or impeachment.
A. Subsequent Remedial Measures Cannot Prove Neg., Culp. Conduct or Liability: There is a notion that
a manufacturer or other party was negligent, etc, if the product or item or action was not safe, etc to begin
with if after the event that is the subject of litigation, the defendant took subsequent remedial measures to
reduce the likelihood of the event’s reoccurrence. Firing an employee is an example of a subsequent
remedial measure.
B. But, Subsequent Remedial Measure Admissible for Other Measures: Subsequent remedial measures
may be used for any other purpose than to show liability, etc. Measures may show that repairs, etc, were in
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fact feasible and could have been done or that the defendant doing remedial measures proves the defendant
was in control of the product. However, these issues must be “controverted” (contested) in the claim.
FRE 408. Compromise and Offers of Compromise
Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to
accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed
as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its
amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible.
This rule does not require exclusion of any evidence otherwise discoverable merely because it is presented
in the course of compromise negotiations. This rule also does not require exclusion when the evidence is
offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of
undue delay, or proving an effort to obstruct a criminal investigation or prosecution.
A. Compromise and Offers to Compromise Cannot Prove Neg., Culp. Conduct or Liability: The inference
is that the offeror believes they were at fault in the action and thus offers to compromise. However, on the
other hand, the offeror may not believe they are at fault and may be compromising to avoid litigation costs.
The exclusion extends to offers made during settlement negotiations.
B. But, Compromise and Offers to Compromise Admissible for Other Measures: a) Compromise and
offers to compromise is admissible to show other things than neg, culp conduct, etc., for example, that the
“comprimiser” was aware of the situation giving rise to the action or had tried to obstruct a prosecution
through settlement. The evidence must be relevant to the issues in the case, however. b) Furthermore,
evidence cannot be insulated from admission just because it was part of an offer to compromise. c) the
offer must be for a disputed claim, if a claim has not yet arisen, then the offer is admissible.
FRE 409. Payment of Medical and Similar Expenses
Evidence of furnishing or offering or promising to pay medical, hospital, or similar expense occasioned by
an injury is not admissible to prove liability for the injury.
A. Payment of Medical and Similar Expenses Cannot Prove Neg., Culp. Conduct or Liability: As with 407
and 408, the inference that someone is paying or taking remedial measures because they are at fault is not
allowed.
B. But, Satetments of Fault Admissible if Made With Payment and for Other Measures: If a party makes
statements of fault – or any statements, these could be admissible if they are made with the payment.
According to the Advisory Committee, these are not negotiations or part of a compromise on which policy
encourages. Furthermore, the payments may be used to show where an injury occurred, for example
FRE 411. Liability Insurance
Evidence that a person was or was not insured against liability is not admissible upon the issue whether the
person acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of
insurance against liability when offered for another purpose, such as proof of agency, ownership, or
control, or bias or prejudice of a witness.
A. Liability Insurance Cannot Prove Neg., Culp. Conduct or Liability: The inference that someone who
has insurance is careless, etc., is impermissible just because they have liability insurance. Furthermore, we
don’t want juries awarding damages just because the defendant has insurance.
B. But Liability Insurance Admissible for Other Measures: Liability Insurance can be used to show other
elements of claim, such as ownership, etc. 403 dangers, however.
X. WITHDRAWN GUILTY PLEAS, PLEAS OF NO CONTEST, AND OFFERS TO PLEAD GUILTY
FRE 410. Inadmissibility of Pleas, Plea Discussions, and Related Statements
Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal
proceeding, admissible against the defendant who made the plea or was a participant in the plea
discussions:
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(1) a plea of guilty which was later withdrawn;
A. Plea of Guilty Later Withdrawn Not Admissible: If the judge decides that a plea of guilty was
inaccurate or violated the defendant’s rights, thus no probative value anyway, it may be withdrawn. The
prosecutor cannot then use the plea, otherwise the defendant’s point of withdrawal would be meaningless.
(2) a plea of nolo contendere;
B. Pleas of No Contest Inadmissible: A plea no contest is a compromise, has little probative value.
(3) any statement made in the course of any proceedings under Rule 11 of the Federal Rules of
Criminal Procedure or comparable state procedure regarding either of the foregoing pleas; or
(4) any statement made in the course of plea discussions with an attorney for the prosecuting
authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn.
C. Statements Made in Conjunction with the Process of Negotiating: For the same reason that settlements
in civil case are excluded, as a matter of policy, plea negotiations may facilitate guilty pleas. Limitations on
Exclusions: a) Plea must be made in negotiations or plea discussions. b) plea must be to prosecuting
attorney, not police officer or anyone else.
However, such a statement is admissible (i) in any proceeding wherein another statement made in the
course of the same plea or plea discussions has been introduced and the statement ought in fairness be
considered contemporaneously with it, or (ii) in a criminal proceeding for perjury of false statement if the
statement was made by the defendant under oath, on the record and in the presence of counsel.
D. Exceptions: Other statements and lies during negotiations may be allowed.
XI. SIMILAR HAPPENINGS
A. Similar Happenings Evidence: Though not dealt with in any specific rule, similar happenings is like a
form of evidence best dealt with by 401 to 406.
XII. CURATIVE ADMISSIBILITY
A. Curative Admissibility: Curative Admissibility is like “fighting fire with fire,” in which the judge
allows one party to introduce inadmissible evidence to respond to the other party’s inadmissible evidence.
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XIII. HEARSAY EXCLUSION
FRE 801. Definitions
The following definitions apply under this article:
(a) Statement. A “statement” is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is
intended by the person as an assertion.
(b) Declarant. A “declarant” is a person who makes a statement.
(c) Hearsay. “Hearsay” is a statement, other than one made by the declarant while testifying at the trial or
hearing, offered in evidence to prove the truth of the matter asserted.
A. Hearsay Defintion: Hearsay: 1) a person’s statement (oral or written); 2) made at a time other than
while the person is testifying in court, thus out of court; 3) and this statement is offered “to prove the
truth of the matter asserted.”
TEST:
*If we care that: A) the declarant had a sincere belief in the event, and B) the declarant had an
accurate memory of the event, and if it were true it would be relevant in the case toward an issue,
then it is hearsay.
Also, A statement is also hearsay if it is the witness’s own statement outside of court even if the witness
testifies and is under oath. The basis of knowledge – is it firsthand – is the point of inquiry.
B. Multiple Hearsay: Multiple Hearsay is hearsay within hearsay, for example a declarant’s statement
described in a letter. Each hearsay component must be subject to an exception or exemption to be
admissible
C. Policy to Exclude (Hearsay Dangers): Thought there could be relevance to a hearsay statement, (the
statement is sincerhearsay policy is to exclude hearsay because there is no opportunity to a) hold the
declarant under oath and have Sincerity; b) no opportunity to cross examine the declarant, c) there could
problems of Memory of what the declarant actually said; d) there are problems of narration or careless
recall and Ambiguity of what declarant said, such as perhaps the declarant spoke differently than what they
meant; e) the jury cannot watch the witness speak and gauge reaction to demeanor, etc. f) there’s a
Perception danger of what the declarant saw, etc.
D. Nonhearsay Uses: When an out of court statement is not offered to prove the truth of the matter
asserted, then the statement is not hearsay and is admissible. The relevance is not about the truth of the
statement. Furthermore, such a statement is not offered to prove the declarant’s belief. It could be offered
to prove: a) the effect on the listener, regardless of truth; b) legally operative facts (verbal acts) such as
whether there was a contract offered, we’re not concerned with the declarant’s sincere belief of if it’s the
truth of what’s asserted, just in the words themselves.
E. Nonverbal Conduct: Even though not an oral or written statement, nonverbal conduct intended as an
assertion is inadmissible hearsay. Thus the person who did the nonverbal conduct must have intended it as
an assertion. If it is nonassertive, meaning if the person did not intend to assert it, it is not hearsay.
INTENT TEST:
* To determine if the nonverbal conduct is intended as an assertion, the proponent must persuade
the judge under 104 that based on the nature of the conduct and the circumstances surrounding the
nonverbal conduct, it was not intended as an assertion and thus it is not inadmissible hearsay. If
the declarant was not intending to communicate, then the declarant was likely not intending to lie.
F. Nondeclarative Utterances and Statements Offered to Prove Truth of Something Other Than the Literal
Matters Asserted: Statements such as these are not hearsay.
(d) Statements which are not hearsay. A statement is not hearsay if –
(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to
cross-examination concerning the statement, and the statement is (A) inconsistent with the
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declarant’s testimony, and was given under oath subject to the penalty of perjury at a trial, hearing,
or other proceeding, or in a deposition, or (B) consistent with the declarant’s testimony and is
offered to rebut an express or implied charge against the declarant of recent fabrication or
improper influence of motive, or (C) one of identification of a person made after perceiving the
person; or
(2) Admission by party-opponent. The statement is offered against a party and is (A) the party’s
own statement, in either an individual or a representative capacity or (B) a statement of which the
party has manifested an adoption or belief in its truth, or (C) a statement by a person authorized by
the party to make a statement concerning the subject, or (D) a statement by the party’s agent or
servant concerning a matter within the scope of the agency or employment, made during the
existence of the relationship, or (E) a statement by a coconspirator of a party during the course and
in furtherance of the conspiracy. The contents of the statement shall be considered but are not
alone sufficient to establish the declarant’s authority under subdivision (C), the agency or
employment relationship and scope thereof under subdivision (D), or the existence of the
conspiracy and the participation therein of the declarant and the party against whom the statement
is offered under subdivision (E).
F. Hearsay Exemptions: FRE 801(d), in addition to the exclusions in 803 and 804, exempts eight types of
out-of-court statements from the hearsay exclusion. If a proponent offers evidence which is indeed hearsay
and the opposing party objects, then the proponent needs to provide foundational evidence:
801(d)(1):
*1) The statement was made by the declarant testifying in court
*2) The declarant is subject to cross-examination by opposing counsel concerning the statement.
AND:
3) The contents of the statement are inconsistent with testimony given
4) The statement was given under oath
5) The statement was made at a trial, hearing, other proceeding, etc.
801(d)(2):
Statements made by a party so long as the statements are against the party…“You said it, you eat
it.”
The rationale for exemptions is that the declarant can be cross-examined.
G. Bootstrapping: Under 104, the judge can use the hearsay evidence in preliminary fact-finding.
FRE 802. Hearsay Rule
Hearsay is not admissible except as otherwise provided by these rules or by other rules prescribed by the
Supreme Court pursuant to statutory authority or by Act of Congress.
FRE 803. Hearsay Exceptions; Availability of Declarant Immaterial
A. Hearsay Exceptions Not Requiring the Unavailability of the Declarant: Some hearsay statements are
reliable enough to be used by the fact-finder. However a) the declarant thus becomes like a witness
testifying and b) the opponent to the hearsay can thus attack the credibility of the hearsay declarant.
However, the witness’ testimony is not affective nor is the availability of the declarant significant.
(1) Present Sense Impression. A statement describing or explaining an event or condition made
while the declarant was perceiving the event or condition, or immediately thereafter.
B. Present Sense Impression: A present sense impression must describe the event or condition pretty much
during or right after the event, for example, such as right after seeing the car drive through the red light,
with the justification being that the statement is spontaneous and not the product of a lie.
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(2) Excited Utterance. A statement relating to a startling event or condition made while the
declarant was under the stress of excitement cause by the event or condition.
C. Excited Utterance: An excited utterance is one which occurs because of a startling event or condition
related to the stress event or condition. Like a present sense impression, this is not hearsay because it does
not have the sincerity and memory dangers. However, it may have perception and narration dangers. An
opposing party should contest the declarant’s perception, the time lapse and the content of the statement
and proof of personal knowledge. There is even more flexibility towards the utterances of children.
(3) Then existing mental, emotional, or physical condition. A statement of the declarant’s then
existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive,
design, mental feeling, pain, and bodily health), but not including a statement of memory or belief
to prove the fact remembered or believed unless it relates to the execution, revocation,
identification, or term’s of declarant’s will.
D. State-of-Mind Declaration: To establish a state-of-mind exception, the contents must represent the
declarant’s currently existing state-of-mind at the time of the statement. Memory or belief cannot prove the
specific fact, just of knowledge. Memory or belief can be used for will, however. The justification for the
exclusion is the fact-of-consequence going on inside the party’s mind. Can’t be used to prove past facts.
(4) Statements for purposes of medical diagnosis or treatment. Statements made for purposes
of medical diagnosis or treatment and describing medical history, or past or present symptoms,
pain, or sensations, or the inception or general character of the cause or external source thereof
insofar as reasonable pertinent to diagnosis or treatment.
E. Statements for medical diagnosis or treatment: Statements made for medical diagnosis or treatment are
hearsay exceptions. Such statements must describe medical history, past or present, be about the cause and
are for the purpose of medical diagnosis. The justification for admissibility is that the declarant’s purpose
is sincere and likely accurate. Common in child abuse and child molestation. Opposition should challenge
medical purpose and when the statement is a medical statement in preparation for litigation, sincerity is
likely lacking.
(5) Recorded Collection.
A memorandum or record concerning a matter about which a witness once had knowledge but
now has insufficient recollection to enable the witness to testify fully and accurately, shown to
have been made or adopted by the witness when the matter was fresh in the witness’ memory and
to reflect that knowledge correctly. If admitted, the memorandum or record may be read into
evidence but may not itself be received as an exhibit unless offered by an adverse party.
G. Past Recollection Recorded: The recording of a past recollection falls under the hearsay exceptions
when the witness is testifying, the statement is in the form of a memorandum or record, the witness cannot
remember the matter sufficiently but once had personal knowledge of the matter and made the recording
when the matter was fresh in the witness’ mind and was correct in their knowledge. There is no limit on
what counts as such a record. To lay an adequate foundation for correctness, it must be shown that the
record was accurate then, a 104(a) question. It can only be read (if a recording, it cannot be played so as
the jury doesn’t put too much weight on it. Furthermore, if it goes in as an exhibit, it must be so because
the opposing party allows it to go as an exhibit. There is a trustworthiness component to the exception,
“freshness” is flexible and open to intrpretation.
FRE 612 Writing Used to Refresh Memory (NB)
Except as otherwise provided in criminal proceedings by section 3500 of title 18, United States Code, if a
witness uses a writing to refresh memory for the purposes of testifying, either –
an adverse party is entitled to have the writing produced at the hearing, to inspect it, cross-examine it…
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H. Refreshing Recollection: If a party uses something to refresh their memory for testimony, then they
must hand it over to the opposing party, because that is what they are testifying about, mainly, so discovery
is imporatn. Nonetheless, it probably won’t help the otherside. If it does not refresh their memory, then
they don’t have to turn it over.
(6) Records of regularly conducted activity.
[Business Records]
I. Business Records: Business Records are admissible hearsay if it is in written or recorded form, it
concerns acts, events or diagnoses, it was made at or near the time of the matter recorded, the source has
personal knowledge, the record was kept in the course of regular business activity and it was the regular
practice to make the record. It is interpreted broadly, the justification is that such records are sincere and
because the record itself is likely the only accurate reflection of the record. However, they are excluded if
untrustworthy but the opponent must challenge. And all declarants – each link – involved in preparation
must satisfy all aspect of the foundation. Much can be redacted in business records, however.
(8) Public records and reports.
Records, reports, statements or data compilations, in any form, of public offices or agencies,
setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty
imposed by law as to which matters there was a duty to report, excluding, however, in criminal
cases matters observed by police officers and other law enforcement personnel or (C) in civil
actions and proceedings and against the Government in criminal cases, factual findings resulting
from an investigation made pursuant to authority granted by law, unless the sources of information
or other circumstances indicate lack of trustworthiness.
J. Public Records: Public records are excepted as hearsay, justification is like that of business records.
However, (B) limits the admission of matters observed pursuant to duty, thus arrest records and such can’t
come in as hearsay exception. Law enforcement is defined narrowly. But the defendant can offer the
police’s records. Under (C), the sources relied on need not be operating under public duty. Regardless,
concerns for trustworthiness will keep out the evidence.
(22) Judgment of previous conviction.
Evidence of a final judgment, entered after a trial or upon a plea of guilty (but not upon a plea of
nolo contendere), adjudging a person guilty of a crime punishable by death or imprisonment in
excess of one year, to prove any fact essential to sustain the judgment, but not including, when
offered by the Government in a criminal prosecution for purposes other than impeachment,
judgments against persons other than the accused. The pendency of an appeal may be shown but
does not affect admissibility.
I. Judgment of Previous Conviction: To be excepted hearsay, a judgment of previous conviction must
follow a criminal trial or a guilty plea, and must be for a crime punishable by death or for more than a
year’s imprisonment, the judgment must be offered to prove a truth of the fact essential to the judgment;
and a judgment offered against a criminal defendant must be a judgment entered against that defendant,
unless it is offered only for impeachment.
FRE 804. Hearsay Exceptions; Declarant Unavailable
A. Hearsay Exceptions Requiring the Unavailibility of the Declarant: In these situations in which the
declarant is unavailable, the statement is excepted hearsay, each definition has certain requirements.
(a) Definition of unavailability. “Unavailability as a witness” includes situations in which the declarant –
(1) is exempted by ruling of the court on the ground of privilege from testifying concerning the
subject matter of the declarant’s statements; or
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(2) persists in refusing to testify ….[See Rule]
(3) testifies to a lack of memory …[See Rule]
(4) is unable to be present…because of death or then existing physical or mental illness or
infirmity; or
(5) is absent from the hearing and the proponent of the statement has been unable to procure the
declarant’s attendance …[See Rule]… by process or other reasonable means.
(b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable
to testify.
(1) Former Testimony.
[See Rule]
B. Former Testimony: Former testimony is admissible if the declarant is unavailable, it must be in the form
of testimony, in a criminal case the other party must have been able to respond through examination, in a
civil case must have been able to respond through examination. Justifications are that the testimony has
already happened.
(2) Statement under belief of impending death.
[See Rule]
C. Dying Declarations: Dying declarations are admissible if the declarant believes they are about to die and
must be in either a homicide or civil case and concern the cause or cirumctances of death. Sincerity is
enhanced, the declarant is unavailable. But necessity and reliability are big concerns.
(3) Statement against interest.
[See Rule]
D. Declarations Against Interest: Declarations against the unavailable declarant’s pecuniary, proprietary,
penal or civil interest are excepted as hearsay. Such a statement is likely to be reliable, however some
people do say things against their interest. The court should look at the situation and motives of the
declarant.
(4) Statement of personal or family history.
[See Rule]
E. Statements of Personal or Family History: Statements made by the unavailable declarant about the
declarant’s own family history is excepted, personal knowledge is not a big concern.
(6) Forfeiture by wrongdoing.
A statement offered against a party that has engaged or acquiesced in wrongdoing that was
intended to, and did, procure the unavailability of the declarant as a witness.
F. Forfeiture by Wrongdoing: A statement made by the unavailable declarant allows the statement of
declarant who may have been killed because of their testimony. Sixth Amendment concerns disregarded.
FRE 805. Hearsay Within Hearsay
Hearsay within hearsay is not excluded under the hearsay rule if each part of the combined statements
conforms with an exception to the hearsay provided in theses rules.
FRE 806 Attacking and Supporting Credibility of Declarant
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When a hearsay statement, or a statement defined in Rule 801(d)(2)(C), (D), or (E) has been admitted in
evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any
evidence which would be admissible for those purposes if declarant had testified as a witness. Evidence of
a statement or conduct by the declarant at any time, inconsistent with the declarant’s hearsay statement, is
not subject to any requirement that the declarant may have been afforded an opportunity to deny or explain.
If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party
is entitled to examine the declarant on the statement as if under cross-examination.
A. Confrontation Clause and Exceptions: When evidence allowed under the above exception is brought in,
the other party can attack per 608, 609 and 613.
XIV. IMPEACHMENT AND REHABILITATION OF WITNESSES
A. Impeachment Evidence: Impeachment is the process of rasing doubts about the inferences a witness
provides. Impeachment evidence must be relevant, otherwise it would be inadmissible. It is done
implicitly, attacks on narrative or perceptive abilities, inconsistent statements, contradictory testimony.
When evidence is used just for impeachment, though, it cannot be used for any impermissible substantive
purpose. This is done on cross-examination basis or through extrinsic evidence. Extrinsic evidence is
essentially anything but asking the witness him or herself. The first question about character evidence
should always be relevance.
FRE 608. Evidence of Character and Conduct of Witness
(a) Opinion and reputation evidence of character. The credibility of a witness may be attacked or
supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence
may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is
admissible only after the character of the witness for truthfulness has been attacked by opinion or
reputation evidence or otherwise.
B. Character Evidence of a Witness in Opinion or Reputation for Truthfulness: Character evidence in the
form of opinion or reputation of a witness can be used against all witnesses. After the opposing party has
attacked the witness’ character for truthfulness, the witness can submit reputation or opinion evidence to
prove a witness’ good character for truthfulness.
(b) Specific instances of conduct. Specific instances of conduct of a witness, for the purpose of attacking
or supporting the witness’ credibility, other than conviction of crime as provided in rule 609, may not be
proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of
truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the
witness’ character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or
untruthfulness of another witness as to which character the witness being cross-examind has testified.
The giving of testimony, whether by an accused or by any other witness does not operate as a
waiver of the accused’s or the witness’ privilege against self-incrimination when examined with respect to
matter which relate only to credibility.
C. Specific Acts: The witness can be questioned about their own specific acts that show character for
truthfulness. However, these acts cannot be shown by extrinsic evidence by the attacking party on crossex.
D. Criminal Defendant Testifies: When a criminal defendant testifies on their own behalf, it is limited by
404(a)(1).
FRE 609. Impeachment by Evidence of Conviction of Crime
(a) General Rule. For the purpose of attacking the credibility of a witness,
(1) evidence that a witness other than accused has been convicted of a crime shall be admitted,
subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year
under the law under which the witness was convicted, and evidence that an accused has been
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convicted of such a crime shall be admitted if the court determines that the probative value of
admitting this evidence outweighs its prejudicial effect to the accused; and
(2) evidence that any witness has been convicted or a crime shall be admitted if it involved
dishonesty or false statement, regardless of the punishment.
(b) Time Limit.
Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed
since the date of the conviction or of the release of the witness from that conviction, whichever is the later
date, unless the court determines, in the interests of justice, that the probative value of the conviction
supported by specific facts and circumstances substantially outweighs it prejudicial effect. However,
evidence of a conviction more than 10 years old as calculated herein, is not admissible unless the proponent
gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the
adverse party with a fair opportunity to the use of such evidence.
A. Use of Prior Conviction: Extrinsic evidence is allowed, Evidence of a prior conviction may be used
against a witness for a) serious crimes punishable by more than one year in prison and b) crimes of
dishonesty and false statement. Crimes of dishonesty and false statements are easily admissible.
If a crime that is not a crime of dishonesty or false statement is brought up, then the evidence is subject to a
Reverse 403 Test. If the witness is the defendant, there is also a Reverse 403 Test. For the Test, the
probative value of the conviction must seriously outweigh the prejudicial effect.
There is no Reverse Test for other witnesses.
B. Conviction Outside of 10 Years: Convictions that fall outside of 10 years are subject to the reverse 403
balancing test.
C. Used for Character for Truthfulness Only: The conviction is for truthfulness – that’s it.
(c) Effect of pardon, annulment, or certificate of rehabilitation.
[See Rule]
(d) Juvenile adjudications.
[See Rule]
(e) Pendency of appeal.
[See Rule]
FRE 613. Prior Statements of a Witness
(a) Examining witness concerning prior statement. In examining a witness concerning a prior statement
made by the witness, whether written or not, the statement need not be shown nor its contents disclosed to
the witness at that time, but on request the same shall be shown or disclosed to opposing counsel.
(b) Extrinsic evidence of prior inconsistent statement of witness. Extrinsic evidence of a prior
inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to
explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness
thereon, or the interests of justice otherwise require. The provision does not apply to admissions of a partyopponent as defined in rule 801(d)(2).
A. Prior Statements: The examiner does not need to disclose to the witness their inconsistent statements
before examining them. Nonetheless, the witness must have an opportunity to explain the statement and
the witness’ party must be able to go back and explore the inconsistency with the witness.
B. Other Impeachment Techniques: There are other impeachment techniques, such as bias, etc.
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XV. OPINIONS AND EXPERT TESTIMONY
FRE 701. Opinion Testimony by Lay Witnesses
If the witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences is
limited to those opinions or inferences which are (a) rationally based on the perception of the witness, and
(b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue, and (c)
not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.
A. Lay Opinion: Lay opinions are generally prohibited, instead the witness testimony must largely be a)
based largely on fact; b) on the perception of the witness which essentially means firsthand knowledge; c)
not scientific, technical, etc. …this all will allow the jury to be the fact-finder.
FRE 702. Testimony by Experts
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence
or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or
education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon
sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the
witness has applied the principles and methods reliable to the facts of the case.
A. Testimony by Experts: Testimony by Experts must a) be within a broad range of scientific, technical or
specialized knowledge and b) it must assist the trier of fact. This ability to testify and speak is an ability
the fact-finder likely does not have.
Frye (1923): the scientific evidence must have “general acceptance”
Daubert (1993): scientific evidence must be “reliable and relevant,” thus scientifically valid.
Kumho Tire (1999): all technical and specialized knowledge must be a) “reliable and relevant”
and b) based upon sufficient facts and data; c) requiring that the witness has reliably applied the
principles and methods to the facts of the case. Furthermore, the judge is the gatekeeper.
FRE 705. Disclosure of Facts or Data Underlying Expert Opinion
The expert may testify in terms of opinion or inference and give reasons therefor without first testifying to
the underlying facts of data, unless the court requires otherwise. The expert may in any event be required
to disclose the underlying facts or data on cross-examination.
A. Opinion Before Basis: The expert can give testimony before giving all the facts necessary for the
testimony, thus experts do not need to testify in the form of long hypotheticals. Furthermore, the expert
may need not ever give the basis for the opinion on direct examination. The opponent however may find
out the basis outside the presence of the jury or on cross-examination. Thus the opponent must know the
subject well to challenge bases. Scope of cross is at discretion of court.
FRE 703. Basis of Opinion Testimony by Experts
The facts or data in the particular case upon which an expert bases an opinion or inference may be those
perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by
experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not
be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are
otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless
the court determines that their probative value in assisting the jury to evaluate the expert’s opinion
substantially outweighs their prejudicial effect.
A. Basis of Opinion: The Basis of opinion testimony must be based on 1) firsthand observation of facts
perceived before trial, 2) facts art trial in the form of a hypothetical, 3) Facts, etc., presented outside ot
court. When outside of court it is inadmissible Evidence as Basis: An expert can rely on inadmissible
evidence as the basis, for example, a doctor who relies on hearsay to form an opinion or disregards the best
evidence rule. The inadmissible evidence must be “reasonably relied upon.” The information will be
disclosed if a Reverse 403 is met.
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FRE 704. Opinion on Ultimate Issue
(a) Except as otherwise provided in subdivision (b), testimony in the form of an opinion or inference
otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of
fact.
A. Opinion on Ultimate Issue: It does not invade the province of the jury for the expert to offer testimony
on an ultimate issue in the case. The jury does not have to accept the expert’s testimony. The witness has
helpful testimony to provide, this allows it. Nonetheless, 701-703 still apply.
(b) No expert witness testifying with respect to the mental state or condition of a defendant in a criminal
case may state an opinion or inference as to whether the defendant did or did not have the mental state or
condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are
matters for the trier of fact alone.
B. But, Opinion on Mental State of Criminal Defendant Prohibited: Though an expert can give their
opinion on an ultimate issue, they cannot give their opinion on an ultimate issue if the issue is the
defendant’s requisite mental state.
FRE 706. Court Appointed Experts
[See Rule]
A. Court Appointed Experts: An expert may be court-appointed because 1) a litigant may be unable to
attain an expert; 2) the expert may not be the most qualified; 3) the jury may not be able to decide between
experts; 4) an impartial expert promotes settlement; 5) it curbs shopping for experts
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