Federal Rules of Evidence - SUMMARY
Preliminary Issues & Introduction to Rules and Trials
 102 Purpose. Role of the Judge - These rules shall be construed so as to administer every proceeding fairly,
eliminate unjustifiable expense and delay, and promote the development of evidence law, to the end of
ascertaining the truth and securing a just determination.
 103 Rulings on Evidence. A party may claim error in a ruling to admit or exclude evidence only if the error affects a
substantial right of the party. If the ruling admits evidence, the party on the record must timely object or move to
strike and states the specific ground, unless it was apparent from the context. If the ruling excludes evidence, the
party must inform the court of its substance by an offer of proof, unless the substance was apparent from the
context.
 104(a) Preliminary Questions: In General. Judge determines evidence admissibility/privilege/witness competency.
Judge not bound by the rules of evidence in making this decision.
 104(b) Preliminary Questions: Relevance that Depends on a Fact. Conditional relevance. Evidence that depends on
the existence of other evidence is not relevant unless the proponent can also prove up the other evidence. Proof
can be admitted later in trial though.
 105 Limiting Evidence that is Not Admissible Against Other Parties or for Other Purposes. If the court admits
evidence that is admissible against a party or for a purpose—but not against another party or for another
purpose—the court, on timely request, must restrict the evidence to its proper scope and instruct the jury
accordingly.
 606(b) Juror’s Competency as a Witness. A juror may not testify about any statement made or incident that
occurred during the jury's deliberations; the effect of anything on that juror's or another juror's vote; or any juror's
mental processes concerning the verdict or indictment. The court may not receive a juror's affidavit or evidence of
a juror's statement on these matters UNLESS prejudicial info was improperly brought, outside influence was
improperly brought, or a mistake was made in entering verdict
 `1101 Applicability of the Rules. Who? US District courts, bankruptcy and magistrate judges, courts of appeals,
federal claims, Guam, Virgin Islands, and Northern Mariana Islands. What? Civil and criminal proceedings as well
as contempt proceedings. Exceptions? Determination under 104(a), grand-jury proceedings,
extradition/rendition, arrest warrant/summons, sentencing, grant/revoke probation or release, and whether to
release on bail or otherwise
Relevance
 401 Test for Relevant Evidence. Any evidence tending to make a fact at issue more or less likely is relevant.
Probative value + of consequence. Needs to place at least one brick in the wall, but need not build the wall all on
its own.
 402 General Admissibility of Relevant Evidence. All admissible evidence is necessarily relevant evidence. Irrelevant
evidence is not admissible.
 403 Relevant Evidence/Balancing Test. Relevant or "probative" evidence may nonetheless be excluded if it
is substantially more unfairly prejudicial/confusing/misleading/undue delay/waste of time.
Personal Knowledge and Competency Requirements
 601 Competency to Testify in General. To testify at all, a witness must be competent. All are presumed competent
unless a rule provides 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.
 602 Need for Personal Knowledge. With one exception (expert testimony under Rule 703) all testimony and
evidence at trial must be based on a witness's personal knowledge. Guessing or speculating about things is
prohibited, and repeating second-hand things other people have told you (Hearsay) is generally banned with its
own list of exceptions under the 800 series of the FRE.
 603 Oath or Affirmation to Testify Truthfully. Before testifying, a witness must give an oath or affirmation to testify
truthfully. It must be in a form designed to impress that duty on the witness's conscience.
 604 Interpreter. An interpreter must be qualified and must give an oath or affirmation to make a true translation.
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 605 Competency of Judge as Witness. A presiding judge may not testify as a witness at trial. A party need not
preserve the issue for an appeal.
 611 Mode and Order of Examining Witnesses and Presenting Evidence. Court should exercise reasonable control
over the mode and order of examining witnesses and presenting evidence so as to make those procedures
effective for determining the truth, avoid wasting time, and protect witnesses from harassment or undue
embarrassment. Cross should not go beyond the scope of direct and matters re credibility of the witness.
 612 Writing Used to Refresh Memory. A writing may be used to refresh a witness's memory. The proponent of the
evidence must show the writing to opposing counsel and wait for an objection. If there is no objection or all are
overruled, the proponent then shows the writing to the witness and asks her to read it to herself. The proponent
takes the writing back. If the writing successfully jogs the witness’s memory, the witness then testifies from the
refreshed memory. If not, the proponent usually tries to get the writing itself in. Often under 803(5).
 613 Witness’s Prior Statement. When examining a witness about the witness's prior statement, you don't have to
show it or disclose its contents to the witness but the party must, on request show it or disclose it to an adverse
party's attorney. Extrinsic evidence of a witness's prior inconsistent statement is admissible only if the witness is
given an opportunity to explain or deny the statement and an adverse party is given an opportunity to examine
the witness about or if justice so requires
 614 Court’s Calling or Examining a Witness. The court may call a witness on its own or at a party's request. Each party
is entitled to cross-examine the witness; The court may examine a witness regardless of who calls the witness; A party
may not object to the court's calling or examining a witness either at that time or at the next opportunity when the
jury is not present. He cannot ask questions that signal his belief or disbelief of a witness because it would usurp the
role of the jury in determining the witness's credibility.
 615 Excluding Witnesses. At a party's request, the court must order witnesses excluded so that they cannot hear
other witnesses' testimony. Or the court may do so on its own. But this rule does not authorize excluding:
(a) a party who is a natural person;
(b) an officer or employee of a party that is not a natural person, after being designated as the party's
representative by its attorney;
(c) a person whose presence a party shows to be essential to presenting the party's claim or defense; or
(d) a person authorized by statute to be present.
 701 Opinion Testimony by a Lay Witness. Must be rationally based on witness's own perception, not on scientific
or specialized knowledge, and must be helpful to a fact at issue – not something that would fall under Expert
Testimony (Rule 702).
Hearsay (second hand, rather than first-hand personal knowledge)
 801 Definitions that Apply to This Article. Hearsay is (a) a statement (b) made out of court (c) offered to prove the
truth of the statement's content (truth of the matter asserted)
o "statement" means an actual CLAIM that has truth or falsity value. "What's the weather today?" has no
truth or falsity value and cannot be hearsay.
o non-verbal conduct can be a statement if it was INTENDED to claim something, such as tucking your cap's
bill to warn your fellow bank-robbers that the cops are on their way
o Anything "said" by a non-human, like a dog or a mechanically produced object like a road sign, is by
definition not a hearsay statement. Declarant must be a person!
o "out of court" means any statement not said under oath by a witness AT THIS SPECIFIC TRIAL. A previous
trial for the same case is still "out of court" for hearsay purposes.
o "to prove the truth of the matter asserted" ex: A crazy guy comes up to you on the street and yells "I'm
Jesus!" Truth of the matter asserted is that he's literally Jesus. That's the CONTENT of the statement. Can't
use it to prove he's Jesus unless he shows up in court to say he is. But you can use it for a non-truth-of-thematter-asserted purpose... such as the fact that he's fucking crazy.
 802 The Rule Against Hearsay. Hearsay is inadmissible unless a federal statute, FRE, or other rules prescribed by
the S. Ct. provides otherwise.
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What is by Definition Not Hearsay (otherwise called "exemptions" rather than "exceptions" to hearsay)
 801.d(1) A Declarant Witness’s Prior Statement. A statement that meets the following conditions is not hearsay:
The declarant testifies and is subject to cross-examination about a prior statement, and the statement:
(A) is inconsistent with the declarant's testimony and was given under penalty of perjury at a trial, hearing,
or other proceeding or in a deposition;
(B) is consistent with the declarant's testimony and is offered:
(i) to rebut an express or implied charge that the declarant recently fabricated it or acted from a
recent improper motive in so testifying; or
(ii) to rehabilitate the declarant's credibility as a witness when attacked on another ground; or
(C) identifies a person as someone the declarant perceived earlier.
 801.d(2) An Opposing Party’s Statement/Admission. Five different situations where statements by the opposing
party come in if offered by the other party, IF:
(A) made by party in individual or representative capacity (through a lawyer)
(B) party adopted truth of the statement (ex. signing a document)
(C) made by someone authorized to speak for the party (spokesman)
(D) admission by agent of party acting in scope of agent relationship
(E) admission by criminal defendant's co-conspirator, provided (1) prosecution can prove to judge a
conspiracy existed by preponderance of evidence, and (2) the statement was made in furtherance of the
conspiracy
Hearsay Exceptions, Without Caring if Declarant Can Testify
 803(1) Present Sense Impression. Something said during or immediately after the declarant's perceiving it
happening.
 803(2) Excited Utterance. While still suffering under startlement from an event, recalling information about that
startling event.
 803(3) Statement of Mind. Then-existent physical/emotional condition, or statement of intent, plan or scheme.
Not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the
validity or terms of the declarant's will.
 803(4) Statement Made for Medical Diagnosis or Treatment. A statement from patient to doctor/staff designed to
influence treatment/diagnosis. Is (A) made for and pertinent to medical dx and tx, and (B) describes medical hx.
 803(5) Recorded Recollection. Witness cannot remember an event but earlier recorded their recollection of that
event when it was fresh in memory. Proponent can only read the recording into evidence as a supplement;
opponent can introduce the document itself as evidence.
 803(6) Record of Regularly Conducted Activity. (A) record was made by someone with personal knowledge of the
information inside of it (B) kept in course of regular activity at business (C) regular practice is to make record of it
(D) as proved either by a testifying custodian of document or a written certification by the same, and (E)
opponent does not show source of info or method of record-keeping lacks trustworthiness.
 803(7) Absence of a Record of a Regularly Conducted Activity. Missing evidence, if normally kept in the course of
business, can be used as evidence that something did not occur and the opponent does not show that the
possible source of the information or other circumstances indicate a lack of trustworthiness. (Absence of
evidence can be used as evidence of absence!)
 803(8) Public Records. Record or statement of public office that (A) sets out office's activities, or is a matter
observed under legal duty to report (but not in criminal cases), or is a factual finding used in a civil case or against
the gov in a criminal case, and (B) opponent does not show source of info or record-keeping methods lack
trustworthiness.
Hearsay Exceptions that Require Witness Be Unavailable First
 804(a) Criteria for Being Unavailable. Five kinds. Witness is:
(1) exempted from testifying because of privilege
(2) refuses to testify in spite of court order
(3) testifies to not remembering subject matter
(4) dead or has then-existing physical or mental impediment
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(5) absent from trial because party could not reasonably procure:
(A) the declarant's attendance, in the case of a hearsay exception under Rule 804(b)(1) or (6); or
(B) the declarant's attendance or testimony, in the case of a hearsay exception under Rule 804(b)(2),
(3), or (4). But this subdivision does not apply if the statement's proponent procured or wrongfully
caused the declarant's unavailability as a witness in order to prevent the declarant from attending
or testifying.
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804(b)(1) Former Testimony. Former testimony given by witness at trial/hearing/depo, offered against party whose
predecessor in interest had opportunity and similar motive to examine that witness
804(b)(2) Statement Under the Belief of Imminent Death/Dying Declaration. Statement under belief of imminent
death. In all civil cases, but only in criminal prosecutions that are over a homicide, if witness made statement while
believing his death to be imminent and the statement was about its cause or circumstances.
804(b)(3) Statement Against Interest. Statement against Interest. (A) Reasonable person in dec's position would only
make if they believe it to be true and it was so contrary to his proprietary or pecuniary interests. AND (B) IT WAS
CORROBORATED by trustworthy evidence.
804(b)(6) Statements Offered Against a Party that Wrongfully Caused the Declarant’s Unavailability. Statement
offered against party that wrongfully procured Wit/Dec's unavailability. Provided opposing party intentionally made
person unavailable, proponent can offer unavailable person's statement against the opposing party.
Random Hearsay Rules to Know
 805 Hearsay Within Hearsay. Each layer of hearsay must have an applicable exception for the deepest level to be
admissible. Hearsay within hearsay is not excluded by the rule against hearsay if each part of the combined
statements conforms with an exception to the rule.
 807 Residual Hearsay Exception. You can argue to the judge to invent a new hearsay exception if statement has
circumstantial guarantees of trustworthiness, is more probative than non-hearsay evidence of the same fact, and
if the statement is not specifically covered by a different exception that it couldn't satisfy. How to get otherwise
inadmissible evidence admitted by proving its reliability, materiality, probative value, and interest of justice.
 Remember, 801(d)(2) Admission by Party Opponent is NOT the same thing as 804(b)(3) Unavailable Witness's
Statement against Interest!
 Co-conspirator admissions offered under 801(d)(2)(E) can violate the Confrontation Clause according to
the Bruton case.
NOT FROM FRE: Exclusion Required Because of Confrontation Clause
 Confrontation Clause of Constitution says "in all criminal prosecutions, accused shall enjoy right to be
confronted with witnesses against him." Generally, means that prosecutions in criminal cases cannot offer
second-hand statements (hearsay) against a criminal defendant unless the declarant shows up in court with an
opportunity to be cross-examined. There are a few important exceptions to this rule.
 Testimonial Evidence, from Crawford v. Washington: CC applies only to "testimonial" hearsay. Hearsay
statements by a declarant that were not given with the understanding that the declarant was essentially giving
testimony against a person are not subject to the CC. Typically, this involves statements by a person to law
enforcement, which a person would understand will or could be used against a defendant.
 Availability of Witness: If statements are testimonial, the wit must usually be available. If testimonial and wit is
unavailable, defendant MUST have had prior opportunity to confront with cross exam. Look for 804(a) when
defining availability.
 Defining sufficient opportunity for cross: Being present at a former hearing where witness testified usually
suffices as opportunity to cross-examine. The defendant need not have actually chosen to cross them.
Exceptions to Confrontation Clause Requirement
1) Emergency Exception, from Davis v. Washington: Non-"testimonial" statements are any statements to law
enforcement officers made during an ongoing emergency, when the primary purpose is to help law enforcement
resolve the emergency rather than establish or prove past events. "Testimonial" statements to law enforcement
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are the opposite: when there is no ongoing emergency and the primary purpose is to establish or prove past
events potentially relevant to later criminal prosecution.
 Factors determining if emergency exception exists: Consider (1) whether statement describes past events
or events that are still unfolding, (2) its purpose is to assist investigation of crime or provide info for some
other purpose, (3) the formality of exchange when statement is given (more formal the questioning, then
the more obviously testimonial it is).
 Ex 1: A 911 call about an ongoing domestic assault is not "testimonial" because purpose of call is informal
and to resolve a crisis, not help law enforcement prosecute the abuser. But it depends what the caller is
saying. If she's describing an assault that is occurring at her house but also adds that the abuser lives at a
different address, then that statement in particular is made for purposes of a more investigatory and
"testimonial" nature. On the other hand, if the abuser has left her house, say, to go get a gun from his
place and come back, then that is a fact that would actually make it more of an ongoing emergency
situation even though the instant assault itself is over-with. TLDR: This analysis is very fact-specific.
 Ex 2: If an armed perpetrator shoots someone and leaves the scene of the crime, then details about that
armed prep are similarly going to tend to be about resolving the emergency of an armed perp being out
there and dangerous.
2) Forfeiture by Wrongdoing Exception: If defendant makes the witness unavailable for the purpose of preventing
them from testifying, then he forfeits his right to confront the witness. Note, however, that it requires specific
purpose of wanting to prevent them from testifying. A regular old murder for money would not satisfying this rule.
Prosecution must prove this exception by a preponderance of evidence.
3) Dying declarations have NOT been explicitly acknowledged by Supreme Court as exception to CC, though they are
an 804 unavailability hearsay exception that USED to be applied to CC IN OLDER TIMES.
Bruton, Confrontation, and 801.d(2)(E) Co-Conspirator Exemption from Hearsay
 Bruton v. US held Def's CC rights are violated when non-testifying codefendant's confession naming Def as
participant in conspiracy are introduced at their JOINT trial, even when jury is instructed to only consider the
co-conspirator's confession against that co-defendant and not the other defendant.
 Why is Bruton an issue? Essentially, what happened in this case is that two defendants were tried in the same
trial for the same crime as co-conspirators. Prosecutor used Def A's admissions under 801.d(2)(E) to count as
an admission of guilt against Def B. Defense objected, and judge instructed jury to only consider the
statements for A's guilt, and ignore the fact that B was implicated in the inadmission. Problem is that the
implicated defendant wanted to confront and cross-examine the veracity of the confession by questioning his
co-defendant on the stand, but his co-defendant chose not to testify. Quite the bind! The Court said it's unfair
and unconstitutional to allow 801.d(2)(E) to be used even with the trial court's instructions to the jury in this
super narrow fact pattern.
Character Evidence
 404(a) Character Evidence; Crimes or Other Acts. Character is a tendency to do something, as demonstrated by
specific acts of conduct or by reputation. 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 that character trait. Ex: Violent character,
law-abiding character, honesty, or dishonesty.
 404(a)(1) The Mercy Rule. Not admissible to show a person acted in accordance with char trait on a specific
occasion. The Mercy Rule allows the defendant to present evidence of his good character to the degree it is
pertinent to the crime with which he is charged. Under 405(a), Mercy Rule witnesses can only testify as to their
knowledge of the defendant's reputation or their opinion of the defendant's relevant character trait but not as to
the specific acts that form the basis of their testimony. Mercy Rule defense witnesses can be crossed by asking
them about any of the defendant's prior acts that demonstrate that his character is contrary to what the witness
testified to. Can't ask about the details or imply that the acts actually occurred. Ex: You murdered in 1981, so you
must have committed the 2015 murder. Or: You're a violent person, so you must be the bank robber.
 404(b)(1) Prohibited Uses. Specifically precludes offering past crimes or wrongs to show character. Yep, two rules.
404(a) is general to any character, helpful or hurtful, 404(b) more specific to past crimes and wrongs.
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Character Evidence Exceptions
 404(a)(2) The Victim’s Character Generally in Criminal Cases/Defense Opens Door in Criminal Case. Defendant can
either bolster his own character as a defense, or he can attack the victim's character, but the prosecution gets to
rebut him with the same kind of otherwise-inadmissible character evidence.
(A) Defendant offers evidence of his own good character, and prosecutor may rebut with evidence of his bad
character. (Ex. Molestation trial. Def offers testimony that he is attracted to his adult wife; prosecutor
rebuts with his Google search history to show he is in fact a pedophile.)
(B) Def attacks victim's character. Ex: Self-defense shooting. Defendant says victim is the violent one of the
two and was the aggressor. Prosecutor gets to rebut with defendant's violent criminal history.
 404(b) The Prosecutor’s Rule. Evidence for non-character purposes. Evidence proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, lack of accident, are all fair game.
o In criminal case, prosecutor must give reasonable notice of any 404(b) offer.
 Do so before trial – or during if the court, for good cause, excuses lack of pretrial notice.
 406 Habit; Routine, Practice. Evidence of habit or organization’s routine practice admissible to prove on particular
time it acted in accordance. Basically, has to be conduct that occurs so often it is said to be "automatic or semiautomatic". The court may admit this evidence regardless of whether it is corroborated or whether there was an
eyewitness or not.
How to Acceptably Prove Character When It is Allowed
 405 Methods of Proving Character. When character and action in accordance is necessarily at issue because of the
particular kind of case, or when a criminal defendant opens the door to it, it only be proved in the following ways:
o 405(a) By Reputation or Opinion. On direct examination, only reputation and opinion of character are
allowed. On cross, specific instances are allowed to rebut the general rep/op.
o 405(b) Essential Element. When character is an essential element of a charge, claim or defense, then it can
be proved by specific instances of conduct. (Ex. Felon in Possession of Firearm. Prosecution has to actually
prove that Defendant is a felon, which is a specific instance of conduct.)
 609 Impeachment by Evidence of a Criminal Conviction. Impeaching a witness with specific instances of criminal
convictions under 609 is allowed provided that rule is satisfied for its requirements.
 608 Witness’s Character for Truthfulness or Untruthfulness. Impeaching a witness with specific instances of
dishonesty under 608 also allowed, also provided rule is satisfied.
Impeachment: Defined
 What is it? Showing a witness is less credible by offering inconsistent past statements, evidence of bias, or
evidence of past crimes, wrongs or acts.
 607 Who May Impeach a Witness. Everyone. Even the party calling their own witness may impeach that witness.
Impeaching with Past Conduct
 609 Impeachment by Evidence of a Criminal Conviction.
o 609(a)(1) Crimes Not About Truthfulness. A felony -- any crime punishable by death or more than 1 year
prison -- MUST be admitted: (A) subject to Balancing Test FRE 403, in any case where witness is not a
defendant, or: (B) in a criminal case where wit is Def, if reverse 403 is true: probative value outweighs
prejudicial effect
o 609(a)(2) Crimes Affecting Truthfulness. Any crime, regardless of felony or punishment status, MUST be
admitted without any 403 balancing analysis, if elements of crime require proving a dishonest act or
statement.
o 609(b) 10 Year "Limit". Ten years after conviction or confinement, whichever is later, make it harder to
offer a crime. Reverse 403 must be true: Probative value substantially outweighs prejudice, and party gives
reasonable written notice of impeachment.
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609(c)-(e). Advanced rules for effects of pardons, rehabilitation, juvenile convictions and ongoing appeals.
Not worth memorizing unless told otherwise.
 608 Impeaching with Non-Conviction Past Bad Acts and Reputation of Untruthfulness.
o 608(a) Reputation/Opinion Evidence. Character for truthfulness may be attacked or rehabilitated by
evidence of a person's reputation for (un)truthfulness or by opinion testimony. Truthful reputation
admissible only after being attacked.
o 608(b) Specific Instances of Conduct. Except for convictions under 609, extrinsic evidence not admissible
to prove specific instances of witness's character for truthfulness. Only reputation evidence or an
admission by the witness himself will be allowed. Testifying witness may be crossed with the witness's
own specific acts of dishonesty by allowing a cross examiner to question the witness directly about the act,
regardless of whether or not they resulted in conviction. Trial judge has discretion to determine whether
the acts are sufficiently probative of dishonesty to be admissible. If the witness denies dishonest acts, the
questioner must take the witness's answer and cannot bring in extrinsic evidence to refute the denial.
Privileges
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501 Privilege in General. Common law controls any claim of privilege for FRE jurisdictions, unless the US
Constitution, federal statute, or Supreme Court case law says otherwise.
o After Eerie, the CivPro case, federal diversity jurisdiction cases use the privilege rules of the host state.
o Federally recognized privileges: attorney-client, spousal, therapist/doctor-patient, executive, clergycommunicant
Random Policy Rules
 407 Subsequent Remedial Measures. Can't let plaintiffs prove negligence or culpability with corrective actions
the defendant took after the plaintiff's harm occurred, or else that would instill a chilling effect on correct
measures by corporations.
 408 Compromise Offers and Negotiations. None of the substance or results of these are admissible to prove
fault, liability or damages. If we let this shit in at trial, then parties would never have negotiations out of fear
that everything they say could be shown to the jury later.
 409 Offers to Pay Medical and Similar Expenses. Not allowed to use to prove liability for an injury or else
nobody would ever offer to pay someone's medical expenses out of fear of getting later sued for their
generosity.
 410 Pleas, Plea Discussions, and Related Statements. Not admissible in both civil and criminal cases against a
defendant, as long as the plea did not occur or it was later withdrawn. However, a court may let in statements
from pleas and plea hearings to impeach a witness if they are lying about it, or in a criminal prosecution for
perjury involving the plea.
 411 Liability Insurance. Not admissible to prove liability. Can be offered to prove bias or prejudice, agency,
ownership, control.
 610 Impeachment of Religious Beliefs. Not allowed. Can't attack credibility because witness subscribes to any
religious belief. Religious beliefs may be relevant for other purposes though.
Sex History/Predisposition Rules
 412 Sex Offense Cases; Rape Shield. Victim's sexual predisposition. Generally, not allowed. Evidence offered to
prove that victim engaged in other sexual behavior or to prove a victim's sexual predisposition are not
admissible in a civil or criminal proceeding involving alleged sexual misconduct.
 412(b)(1) Criminal Exceptions. Allowed to show someone other than defendant is source of semen/injury, or to
prove consent, or anything offered by the prosecutor. Still won't come in unless excluding it would violate
defendant's constitutional rights.
 412(b)(2) Civil Exception. Admissible to prove victim’s predisposition or behavior if probative value
substantially outweighs danger to victim and unfair prejudice (reverse 403). Also, victim may place this topic at
issue by choice.
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
413-415 Defendant's Sexual History. In criminal and civil cases, prosecution/plaintiff can offer evidence that
defendant committed similar sexual misconduct in the past, provided they fully disclose all the info on those
past cases to defense and give written notice of intent to offer them.
Threshold Expert Testimony Qualifications
 Under Daubert and other cases, court must make finding that qualifications listed under Rule 702 have been
met before allowing a jury to hear testimony of expert nature.
 702 Testimony by Expert Witnesses. Witness cannot offer expert conclusion unless:
(a) he is qualified as expert by specialized training, education or experience in scientific, technical or other
such field.
(b) testimony based on sufficient facts or data
(c) principles and methods used are "reliable" as defined by Daubert. Reliable can but need not include peer
reviewed, testable, known error rate, accepted in the scientific community, or anything else relevant.
(d) expert reliably applied principles and methods to this case
Exceptions to Personal Knowledge of Testimony by Expert
 703 Bases of Expert. May base opinion on facts or data the expert has not been personally made aware of,
provided experts in his field would reasonably rely on them. The opinion can even be based on inadmissible
evidence such as character evidence or hearsay, provided it's reliable for expert to rely on it.
o Proponent can even offer the inadmissible underlying evidence for an expert conclusion, provided it is
reverse 403 substantially more probative than prejudicial and is helpful (i.e. necessary) to trier of fact in
understanding expert's conclusion.
 705 Disclosing Underlying Facts and Data. Proponent need not first offer underlying facts and data before
offering conclusion, but the court can order it if it wishes. And opponent can always delve into underlying facts
and data on cross examination to challenge credibility of expert's conclusion, even if underlying info is
otherwise inadmissible.
Expert Opinion on Ultimate Issue
 704 Opinion on an Ultimate Issue Defined. When a witness opines on existence of an element of crime or tort.
Ex: "In my opinion, John was criminally negligent." Old rule always prohibited this.
o 704(a) In General. Generally IS admissible today!
o 704(b) The ONE Exception. In a criminal case, an expert MUST NOT state opinion about whether
defendant did or did not have required mental state/condition for a crime or a defense to crime. Ex:
Expert cannot say defendant had mens rea or intent. Or: Expert cannot say defendant was criminally
insane at the time of the murder; rather, he can only say defendant demonstrated insanity at times before
and after the murder.
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