Evidence
3 Steps:
1) Is it relevant? 401 relevance.
Impeachment is also another type of relevancy. Credibility is always important.
2) Is it reliable?
 Competent Source? Lay witness rules. Expert rules.
 Inadmissible opinion?
 Authentic?
 Violate the Best Evidence Rule?
 Hearsay?
3) Is it right? Rule 403 balancing.
Key Features of Trial:
 The adversary system- 2 sides fighting for their version of the truth.
 Bifurcated court- judge decides what evidence is let in; jury decides what that
evidence means.
 Lay decision making
 Concentrated proceeding.
FRE 102: Purpose and Construction. These rules shall be construed...to the end of
ascertaining the truth and securing a just determination.
Why have evidence rules?
 We don’t want to let everything in because some evidence tends to make a jury
lean one way based on past experiences and emotion. We want to prevent this
to get better accuracy.
 Efficiency
 Consistency
 *Uniformity balanced by flexibility- the broadness of the rules allows some
creativity.
*Remember: it is very hard to overturn an evidentiary ruling on appeal, so you must
win the evidence argument at the trial level.
***Core Concept of Evidence:
 You always must be able to articulate WHAT THE EVIDENCE IS BEING OFFERED
TO PROVE. Evidence may be admissible to prove one fact, but inadmissible to
prove another.
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The Three “R”s
1. Is the evidence relevant for the offered purpose?
 An item admitted into evidence must always be used to prove a material
fact. *Remember the importance of common sense inference- what is the
evidence being offered to prove?
 FRE 401/402—Legal Relevance.
 FRE 403—Pragmatic Relevance.
2. Is the evidence reliable for the offered purpose?
 Competent source? Inadmissible opinion? Authentic? Violate the best evidence
rule? Hearsay? (Article 8)
3. Is it right to allow the fact resolver to receive the evidence for the offered purpose?
 The balancing of probative value against likely harm is a way of protecting the
integrity of the fact-finding process”- a commitment to the principle that juries
must not decide cases for the wrong reasons- ex. anger, outrage, or sympathy.
 Balancing Test- Rule?
Other examples: Public policy decisions, privileged information
Relevance
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Logical Relevance: Rules 401-402
Pragmatic Relevance: Rule 403
Character Evidence: 404, 405
Conditional Relevance: Rule 104
Habit, Custom: Rule 406
Policy Exclusions to the Relevance Rules: Rules 407-15
Note: Relevance Issues should be raised in trial as early as possible to give the judge an
opportunity to become educated on the facts.
 Judges are usually generous in allowing witness background that has a
bearing on credibility.
Note: There are two types of relevance—substantive relevance (going to one of your
legal theories of the case) and impeachment relevance (going to the credibility of the
witness).
Legal Relevance:
FRE 401: Evidence is relevant if:
 (a) It has any tendency to make a fact more or less probable than it would be
without the evidence; and
 (b) The fact is of consequence in determining the action
o “Probative value”
 FRE 401 has this two-step inquiry.
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o 1) What are the matters in issue in this case?
 Does not have to be controlling matter or
disputed.
o 2) Is the evidence probative of a matter in issue in the
case?
 Man losing his job is more likely to need money
and more likely to rob a bank. PROBATIVE
 A husband taking out life insurance policy on wife
10 years before death is SPECULATIVE-not
relevant
 Sometimes things may be “conditionally relevant”. It is conditionally relevant
under 104(b) if a party first has to prove that another fact exists before the
offered evidence will be relevant. Judge has discretion to admit conditionally
relevant evidence out of turn, based on the representation that the
proponent will connect it later.
FRE 402. General Admissibility of Relevant Evidence
A) Relevant evidence is admissible unless any of the following provides
otherwise:
1. The US Constitution, federal statute, these rules…
B) Irrelevant evidence is not admissible.
 Questions to ask under this rule: 1) What is the evidence being offered to
prove? 2) Is the fact provable in this case?, 3) Does the evidence help
establish that fact?
Take aways from 401-402: The burden to get evidence in for relevance is very low.
What is it being offered to prove? Is that point material? Does it have any tendency to
prove that point?
Pragmatic Relevance:
FRE 403. Excluding Relevant Evidence for Prejudice, Confusion, waste of time, or
other reasons.
The court may exclude relevant evidence if its probative value IS SUBSTANTIALLY
OUTWEIGHED by a danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting time, or
needlessly presenting cumulative evidence.
 In FAVOR of allowing in evidence! One of the dangers must substantially
outweigh the probative value to have the evidence kept out.
 **This is the balancing test!
Rule 403 Factors:
 Enumerated Dangers:
o Unfair Prejudice, Confusion of issues, Misleading the jury
 Enumerated Considerations
o Undue delay, Waste of time, Needless cumulative evidence
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Purpose of Rule 403: As society, we have this rule because we want the jury to be
deciding things logically rather than empathetically. It is unfair for the jury to use their
emotions to decide a case rather than the logical facts.
Three Step Process:
1. Determine the probative value of the proffered evidence.
2. Identify the presence of any enumerated dangers or efficiency considerations.
a. How is it prejudicial or misleading?
3. Balance the probative value against the identified dangers or considerations.
a. Dangers must SUBSTANTIALLY OUTWEIGH THE PROBATIVE VALUE. The
rule is biased in favor of admissibility.
Conditional Relevance
FRE 104. Preliminary Questions
A) In general. The court must decide any preliminary question about whether a
witness is qualified, a privilege exists, or evidence is admissible. In so deciding,
the court is not bound by evidence rules, except those on privilege.
B) Relevance That Depends on a Fact. When the relevance of evidence depends
on whether a fact exists, proof must be introduced sufficient to support a finding
that the fact does exist. The court may admit the proposed evidence on the
condition that the proof be introduced later.
C) Conducting a Hearing So That the Jury cannot Hear It
i. The Court must conduct any hearing on a preliminary question so that
the jury cannot hear it if:
1) the hearing involves the admissibility of a confession;
2) a defendant in a criminal case is a witness and so requests; or
3) justice so requires.
D) Cross-Examining a Defendant in a Criminal Case. By testifying on a
preliminary question, a defendant in a criminal case does not become subject
to cross-examination on other issues in the case.
E) Evidence Relevant to Weight and Credibility. This rule does not limit a party’s
right to introduce before the jury evidence that is relevant to the weight or
credibility of other evidence.
Rule 104(a) Notes:
 When fact finding is necessary to determine the admissibility of evidence, the
judge will decide whether or not this evidence is true. Somebody has to argue
whether or not there is a foundation for this “evidence” and if it is, argue that it
is true to a preponderance of the evidence.
o Gives the judge the fact-finding power.
o Example: Excited utterance statement. Judge must decide the statement
qualifies as an excited utterance before it gets in.
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The judge does not have to rely on only admissible evidence.
Must be by a preponderance of the evidence.
Rule 104(b) Notes:
 This is where CONDITIONAL RELEVANCE applies!
 Judge still plays gatekeeping role, but is less of a gatekeeper than under 104(a).
 When the relevance of a fact is conditioned upon finding that some other fact
occurred.
 Evidence offered in court must meet all required evidence rules.
 This rule does not require any particular order of proof- The judge may allow the
disputed evidence to be heard by the jury before a judicial finding that the
condition has been fulfilled if the judge believes that the reasonable juror may
find that, by a preponderance of the evidence, the fact is true.
 If the evidence turns out to be relevant, than the jury will consider it relevant
and use it in their decisions. If the evidence is not relevant in the eyes of the
jurors than they will ignore it.
Huddleston Test: Evidence of a “bad act” need only be sufficient to allow a reasonable
jury to conclude by a preponderance that the person committed the act.
 Need to be sure the prior act happened and don’t want to get into a trial within
a trial—don’t want to spend too much time proving the prior bad acts.
*Need to understand how 404(b) and 104(b) relate to each other. Whenever you are
attempting to introduce an ACT, you must make sure it is factually based and provable.
(Know how to relate these two rules together).
Character Evidence
Structure of Character Rules:
 404(a). Ban on Propensity Argument
o Exceptions: (a)(2)(A), (a)(2)(B), (a)(2)(C), (a)(3)- 607, 608 609
 404(b). Prior Bad Acts—Ways to Use Bad Acts for Reasons OTHER THAN
propensity
 405. How to Prove Character for Propensity Argument- when you are allowed
to.
FRE 404. Character Evidence; Crimes or Other Acts
(a) Character Evidence
(1) Prohibited Uses. Evidence of a person’s character or character trait is
not admissible to prove that on a particular occasion the person acted
in accordance with the character or trait.
Notes:
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Though much character evidence would be relevant, 404 says that in general it is
not allowed because it has slight probative value and often misleads.
When you are trying to prove, on the instance in question, that the party acted
in accordance with that character trait, 404(a)(1) very clearly bans this evidence!
This is called the propensity argument.
Purpose: We only want the jury to be looking at what the party did in the
instance under scrutiny. Same idea as 403- unfair prejudice- don't want jury to
decide with emotion rather than facts.
404(a) is a BAN on what is called the propensity argument. To prove that they
acted in accordance with the evidenced character traits.
o Character may still be used to prove other points- just not that they acted
in accordance with that character on the instance in question.
o Adverse attorney could still raise 403 objection that it’s danger outweighs
its probative value.
Can be used to prove motive, opportunity, intent, preparation, plan, knowledge,
etc. but prosecution must give notice
o Ex: Brooke thought Joe was lazy and good for nothing so she had motive
to frame him. (Not showing he was lazy, showing Brooke’s motive)
FRE 404(a)(2) Exceptions for a Defendant or Victim in a Criminal Case. The
following exceptions apply in a criminal case:
(A) A defendant may offer evidence of the defendant’s pertinent
trait, and if the evidence is admitted, the prosecutor may offer
evidence to rebut it;
(B) Subject to the limitations in Rule 412, a defendant may offer
evidence of an alleged victim’s pertinent trait, and if the
evidence is admitted, the prosecutor may:
i) Offer evidence to rebut it; and
ii) Offer evidence of the defendant’s same trait; and
(C) in a homicide case, the prosecutor may offer evidence of the
alleged victim’s trait of peacefulness to rebut evidence that the
victim was the first aggressor.
(3) Exceptions for a Witness. Evidence of a witness’s character may be
admitted under Rules 607, 608, 609.
Notes:
 Tells us when character evidence is allowed in for the propensity argumentexceptions to the general rule against character for propensity.
 **404(a)(2) applies only to criminal cases! Not civil! Therefore, since there are
no exceptions, character evidence is not usually admissible in civil cases-simply
banned under 404(a)(1).
 404(a)(2)(A): Mercy rule permits a criminal ∆ to introduce evidence of pertinent
(can’t just be random—think about why it matters to the case) character traits
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(peacefulness) of the ∆ since their liberty is at stake and any need a
counterweight against strong investigative and prosecutorial resources.
However, once the ∆ has put the ∆’s character into issue, the π can now bring in
evidence to rebut the peacefulness claim under 404(a)(2)(A).
o Purpose: Play fair. If we are going to allow the Defendant’s character
testimony, then the mercy rule gets thrown out. Both sides should then
be able to question character.
o PAY ATTENTION ON WHERE EVIDENCE IS OFFERED. ∏ CAN’T BRING IT IN
UNLESS ∆ HAS ALREADY OPENED DOOR.
404(a)(2)(B)*If victim was the alleged first aggressor, then their character traits
may be allowed in. *AGAIN the ∆ must be the first to bring the character into
question!! Then, the π will be allowed to rebut (404a2Bi) OR offer evidence of
the defendant’s same trait. (404a2Bii)
o Ex. If allegedly, Leslie was the first aggressor, and D called witness to
testify that Leslie was an angry and violent person. P can then rebut this
evidence AND offer evidence that D was also angry and violent.
Under 404(a)(2)(B)(ii): Once the ∆ “opens the door” to the victim’s character, he
has “opened the door” to his own character.
o Practice Tip: ∆ should always remember that it is their choice whether or
not to call character into question (to “open the door”)- they should
weigh what witnesses are going to say? Overall bad or good idea to call
character into question?
Though opinion/reputation evidence sounds a lot like hearsay, there is an
exception for it found in FRE 803(21).
FRE 404(b) Crimes, Wrongs, or Other Acts
(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not
admissible to prove a person’s character in order to show that on a
particular occasion the person acted in accordance with the character.
(2) Permitted Uses; Notice in a Criminal Case. This evidence may be
admissible for another purpose, such as proving motive, opportunity,
intent, preparation, plan, knowledge, identity, absence of mistake, or
lack of accident. On request by a defendant in a criminal case, the
prosecutor must:
(A) Provide reasonable notice of the general nature of any such
evidence that the prosecutor intends to offer at trial.
(B) Do so before trial— or during trial if the court, for good cause,
excuses lack of pretrial notice.
Notes:
 Remember core concept of evidence:
o Evidence may be admissible to prove one fact but inadmissible to prove
another.
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404(b)(1): Can’t use specific acts as evidence. Evidence of specific instances is
generally not allowed. Only opinion/reputation evidence is allowed under
405(a)
o Not admissible as proof of notice of a condition.
o Firsthand knowledge is required when evidence is offered to show
dangerousness of a product or location.
o Purpose for allowing opinion/reputation and not specific acts: Specific act
evidence is TOO powerful. It has the greatest capacity to raise unfair
prejudice—can also be a waste of time because the other party will argue
then that the specific instance did not occur; therefore, extremely large
403 concerns.
o Opinion or reputation is less powerful evidence, and it IS more generally
admissible.
 This is an odd phenomenon- we allow witnesses to tell their
opinion and reputation, HOWEVER we don't allow them to ask the
basis for those opinions or reputation. (Unless provided for in
specific acts under 404(b)(2)).
404(b)(2): Instances in which you CAN use specific acts that are not the
propensity argument.
o Used to show: Identity, Modus operandi, intent, knowledge, motive,
preparation, plan, consciousness of guilt, state of mind, dislike of or
attitude toward the victim, opportunity or preparation, absence of
mistake or accident, to impeach defendant’s alibi, circumstances of
arrest, proximity of defendant to time or place of crime, identification of
weapon used in crime, etc.
o Basically, you CAN use specific instance evidence as long as it is not being
used to prove propensity!
Basic Rule- if you are going to use specific incident evidence you have to let the
other party’s attorney know.
Examples of 404(b):
Person A is accused of stealing information from a password-protected computer.
A had been convicted once before for stealing info from the exact same computer.
 Bad argument: Because he did it before, this evidence should be used to
show that he probably did it again.
 Good argument: Using this evidence to show that Person A had knowledge of
the password of the computer.
Person C is accused of trying to sell a rare painting by Vincent Van Gogh. There is
evidence that Person C is the individual who stole the Van Gogh painting three months
earlier.
 Bad argument- Because he is a bad person and stole this painting, that
means he is a bad person and selling the painting.
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Good argument: evidence is being used to prove that he had the opportunity
to sell the painting.
What is the best way to attack evidence being allowed under 404(b)?
o 403 Balancing Test (Remember—with all the rules, you still need to use the 403
balancing test.)
o Considerations
o Probative Value:
 Prosecutor’s need for the evidence.
 Degree of probative worth regarding the prior act.
o Unfair prejudicial risk:
 Nature of prior misdeeds and their potentially prejudicial effect.
 Effectiveness of a limiting instruction in reducing the unfair
prejudice.
Huddleston Test: Evidence of a “bad act” need only be sufficient to allow a reasonable
jury to conclude by a preponderance that the person committed the act.
o Need to be sure the prior act happened and don’t want to get into a trial within
a trial—don’t want to spend too much time proving the prior bad acts.
o Can be proven by convictions or witness testimony.
o This is the 104(b) test. The relevance of a prior act under 404(b) is conditioned
upon proof that the defendant actually engaged in the conduct. Thus, proof of
whether the prior act occurred is considered under the 104(b) standard as would
any other conditionally relevant facts.
o If its obvious-they may admit it. If it is in dispute as to whether it actually
happened, the act can only come in under the Huddleston test.
o Ex: You want Joe’s bar fight in. You can’t get this in for specific event or
character. You might get it in under knowledge of how to fight. Now that
you’ve argued knowledge, you can’t say it proves he was violent, you just
have to say he had knowledge bc that’s how you got it in.
FRE 405. Methods of Proving Character
(a) By Reputation or Opinion. When evidence of a person’s character or
character trait is admissible, it may be proven by testimony about the
person’s reputation or by testimony in the form of an opinion. On crossexamination of the character witness, the court may allow an inquiry into
relevant specific instances of the person’s conduct.
a. Reputation is the community’s belief about someone. The reputation
must be at the time of the incident, not at the time of trial.
b. Opinion is a person’s own belief about that person.
(b) By Specific Instances of Conduct. When a person’s character or character
trait is an essential element of a charge, claim, or defense, the character or
trait may also be proved by relevant specific instance of the person’s
conduct.
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a. Example: If a drug dealer uses a defense that he was entrapped,
prosecution may offer evidence of a defendant’s character as a
preexisting drug dealer.
Notes:
 The difference between 404(b) and 405(b) is what the prior acts are being
offered to prove. Under 404(b), they are being offered to prove something other
than character. Under 405(b), specific acts can be used to prove character- for
propensity argument--, but only when character is an “essential element” of a
claim, defense, etc.
 Rule 405(a) says that when character evidence is admissible, it is admissible
through reputation or testimony in the form of an opinion.
o Though this may sound like hearsay- an exception is provided for it803(21).
 Rule 405(a) allows the cross-examiner to bring up prior instances of conduct if
the D has brought up the opposing character trait in the case in chief/on direct
examination [of a character witness!].
o Purpose: P is testing the knowledge of the witness. Testing the
credibility. *Credibility of a witness is always a fact of consequence!
o Notice that this creates a very fine line. The cross-examiner is ONLY
allowed to test the knowledge of the witness, the cross-examiner cannot
assert the facts they are asking.
 Ex. “Did you know that Joe broke x’s nose in a bar fight?”
o Problem: Once the question has been asked, the evidence that is
otherwise inadmissible will get into the jury’s minds.
 Michelson Limiting Instruction: The judge must limit the evidence
and tell the jury that they may only use that “question” to test the
credibility of the witness. Judge will instruct the jury that this is
no proof that the event actually occurred, but instead only
brought up to question reputation.
 *Ethics Question
 Rule 405(b) allows certain circumstances when you can use specific act evidence
to prove character if the trait is an “essential element of a charge, claim or
defense.”
o Very rarely is something an essential element of a charge, claim or
defense.
 In order to determine “essential element”- look to the actual
definition of the charge, claim, or defense.
 Example- Suing City for Police violence- must prove they hired
someone who was known to have a violent temper.
 Example- “Negligent entrustment of vehicle with incompetent
driver.” Must prove driver was incompetent.
o When the character trait is an essential element, then evidence towards
it is admissible if proven by reputation, opinion, or specific instances.
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Example: Did you know about the bar fight? So do you still think
he’s peaceful?
o Can only be used ON CROSS EXAMINATION (unless its used under 404(b))
*Specific instances of pertinent character traits allowed in two instances (other than
enumerated in 404(b)—1) where it is a necessary element of the crime (405(b)); 2) to
impeach witnesses as to their truthfulness or untruthfulness (405(a)).
Habit Evidence
FRE 406. Habit; Routine Practice.
Evidence of a person’s habit or an organization’s routine practice may be admitted to
prove that on a particular occasion the person or organization acted in accordance with
the habit or routine practice. The court may admit this evidence regardless of whether
it is corroborated or whether there was an eyewitness.
Judge determines whether this gets in under rule 104(a)
Character v. Habit
FRE 404(a): Evidence...of character...is not admissible to prove that on a particular
occasion the person acted in accordance with the character.
FRE 406: “Evidence of..habit..may be admitted to prove that the person acted in
accordance with that character”
 Habit may be allowed for purposes of the propensity argument while character
may not. (The party acted in accordance with that habit)
 There is a very thin line between character and habit, make best argument.
 Reflexivity matters for habit. It must be something that is almost non-volitional,
semi-automatic.
 Habit applies to more than just people. It usually is used in evidence for
organizations. (Routine organizational evidence will 1st be decided by judge).
Purpose: Habit is much more probative value than simple character.
 Saying they are always wearing their seatbelt-this is reflexive. It is a habit.
 Versus saying they are a “careful” person. Careful people are sometimes not
careful.
Purpose: Character can seem too “damning”, and then the jury will look at the type of
person the defendant is. Habit doesn’t go to the type of person, but is more telling.
How to prove habit:
 Form of opinion if someone has seen you do something over and over.
o Ex: In your opinion, did the ∆ have a habit of stopping at that
intersection?
 Recounting many specific examples of behavior.
o Multiple witnesses can be called to testify to this.
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*Stakes are high- if it is habit, then the prosecution can use it in their case in chief. If
character, have to wait until D brings it into question.
Rule is pretty ambiguous. It helps to look at other courts prior decisions and how
they’ve handled it. *Remember this
Policy Exclusions and Privileges
In rules 407-412: Probative value of this type of evidence is generally low.
FRE 407. Subsequent Remedial Measures
When measures are taken that would have made an earlier injury or harm less
likely to occur, evidence of the subsequent measures is not admissible to prove:
(fault)
o Negligence
o Culpable conduct
o A defect in a product or its design; or
o A need for a warning or instruction.
But the court may admit this evidence for another purpose, such as
impeachment or—if disputed—proving ownership, control, or the feasibility of
precautionary measures.
Notes:
 Purpose: 1) Promotes repairs; 2) Such repairs may not necessarily prove
negligence or fault, but there is a danger that the jury may erroneously think so;
3) Takes the jury’s attention away from the central issues in the case.
 Notice exceptions—impeachment, and if disputed, to prove ownership, control,
or the feasibility of precautionary measures.
o Example: When ∆ is saying that they were not in control of the property,
however, they fixed the property.
o Exceptions will still be subject to the 403 test.
 However, if the evidence is going to show negligence, culpable conduct, defect,
or need- NOT admissible.
**Notice that in order to know whether or not evidence is admissible, you must look to
the theories of the case. Therefore, the legal claims being argued are important in
evidence. Need to know what “fact of consequence” the evidence is going to prove
towards what legal theory.
 Example: A customer slips in a store and injures herself. π claims the type of
flooring was too slippery, and she sues the store for negligence. Π wants to offer
evidence to show that a week after the accident ∆ storeowner changed the
store’s flooring to non-slip flooring to show that the floor was too slippery when
she fell.
o Relevant & makes it more likely, but clearly excluded.
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She slipped & fell outside of the store on the sidewalk. ∆ said it wasn’t his fault
b/c he didn’t own the sidewalk out front. A week later ∆ installed non-slip
material on the sidewalk.
o This evidence would be admissible because its not going to show fault,
just ownership.
FRE 408. Compromise Offers and Negotiations
(a) Prohibited Uses. Evidence of the following is not admissible—on behalf of any
party—either to prove or disprove the validity or amount of a disputed claim or to
impeach by a prior inconsistent statement or a contradiction.
(1) Furnishing, promising, or offering—or accepting, promising to accept, or
offering to accept—a valuable consideration in compromising or attempting
to compromise the claim; and
(2) Conduct or a statement made during compromise negotiations about the
claim—except when offered in a criminal case and when the negotiations
related to a claim by a public office in the exercise of its regulatory,
investigative, or enforcement authority.
(b) Exceptions. The court may admit this evidence for another purpose, such as proving
a witness’s bias or prejudice, negating a contention of undue delay, or proving an effort
to obstruct a criminal investigation or prosecution.
Notes:
 Purpose: Offers to settle are irrelevant, since there are many reasons other than
fault to settle a case. Also, settlements, as a matter of policy, should be
encouraged.
FRE 409. Offers to Pay Medical and Similar Expenses
Evidence of furnishing, promising to pay, or offering to pay medical, hospital, or similar
expenses resulting from an injury is not admissible to prove liability for the injury.
Notes:
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Purpose: Such offers may be motivated by altruistic reasons, but that a jury
will assume it shows fault. Encourages providing prompt medical attention to
injured persons and humanitarian impulses.
FRE 410. Pleas, Plea Discussions, and Related Statements
(a) Prohibited Uses. In a civil or criminal case, evidence of the following is not admissible
against the D who made the plea or participated in the plea discussions:
(1) a guilty plea that was later withdrawn;
(2) a nolo contendere plea;
(3) a statement made during a proceeding on either of those pleas under FRCP
11 or comparable statute;
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(4) a statement made during plea discussions with an attorney for the
prosecuting authority if the discussions did not result in a guilty plea or they
resulted in a later-withdrawn guilty plea.
(b). Exceptions. The Court may admit a statement described in Rule 410(a)(3) or (4)
(1) in any proceeding in which another statement made during the same plea or
plea discussions has been introduced, if in fairness the statement ought to be
considered together or;
(2) in a criminal proceeding for perjury or false statement, if the D made the
statement under oath, on the record, and with counsel present.
FRE 411. Liability Insurance
Evidence that a person was or was not insured against liability is not admissible to prove
whether the person acted negligently or otherwise wrongfully.
But the court may admit this evidence for another purpose, such as proving a witness’s
bias or prejudice or proving agency, ownership, or control.
Notes:
 Rationale: The existence of such insurance has little or no relevance to the
issue of negligence or fault and that the amount of compensatory damages
the jury may award the P should not be influenced by whether the D had
insurance, or of the D’s financial condition otherwise.
 Again, evidence is inadmissible for issues of negligence or fault, but is
admissible to prove witness bias/impeachment, prejudice, or proving agency,
ownership, control.
 Info about insurance generally will not be let in, unless the insurance
company is accused of misrepresenting things.
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FRE 412. Sex Offense Cases-The Victim’s Sexual Behavior / Predisposition
(a) Prohibited Uses. The following evidence is not admissible in a civil or criminal
proceeding involving alleged sexual misconduct:
(1) evidence offered to prove that a victim engaged in other sexual behavior; or
(2) evidence offered to prove a victim’s sexual predisposition.
(b) Exceptions.
(1) Criminal Cases. The court may admit the following evidence in a criminal
case:
(A) evidence of specific instances of a victim’s sexual behavior, if offered
to prove that someone other than the defendant was the source of
semen, injury, or other physical evidence;
(B) evidence of specific instances of a victim’s sexual behavior with
respect to the person accused of the sexual misconduct, if offered by the
defendant to prove consent or if offered by the prosecutor; and
(C) evidence whose exclusion would violate the defendant’s
constitutional rights.
(2) Civil Cases. In a civil case, the court may admit evidence offered to prove a
victim’s sexual behavior or sexual predisposition if its probative value
substantially outweighs the danger of harm to any victim and of unfair prejudice
to any party. The court may admit evidence of a victim’s reputation only if the
victim has placed it in controversy.
(c) Procedure to Determine Admissibility.
(1) Motion. If a party intends to offer evidence under Rule 412(b), the party
must: file a motion that specifically describes the evidence and states the
purpose for which it is to be offered at least 14 days before trial, serve the
motion on all parties and notify the victim.
(2) Hearing. Before admitting evidence under this rule, the court must conduct
an in camera hearing and give the victim and parties a right to attend and be
heard. Unless the court orders otherwise, the motion, related materials, and the
record of the hearing must be and remain sealed.
Notes:
Without this rule, the argument of consent would be made much more.
This rule takes away from reputation and opinion evidence.
Can’t prove lack of mistake stuff permitted by rule 412.
This evidence is highly prejudicial and outweighs its probative effect. We are so skeptive
of this rule that we wanted a rule so judges/juries weren’t left to figure these issues out
on their own. Almost always excluded.
FRE 413. Similar Crimes in Sexual-Assault Cases
(a) Permitted Uses. In a criminal case in which a defendant is accused of a sexual
assault, the court may admit evidence that the defendant committed any other sexual
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assault. The evidence may be considered on any matter to which it is relevant. (Must
disclose to defendant 15 days before trial)
FRE 414. Similar Crimes in Child Molestation Case
(a) Permitted Uses. In a criminal case in which a defendant is accused of child
molestation, the court may admit evidence that the defendant committed any other
child molestation. The evidence may be considered on any matter to which it is
relevant. (Must disclose to defendant 15 days before trial)
FRE 415. Similar Acts in Civil Cases Involving Sexual Assault or Child Molestation
(a) Permitted Uses. In a civil case involving a claim for relief based on a party’s alleged
sexual assault or child molestation, the court may admit evidence that the party
committed any other sexual assault or child molestation. The evidence may be
considered as provided in Rules 413 and 414.
WITNESS EXAMINATION
Notes:
 Facts are 1st hand observations; opinions are drawn from those observations
 Opinions are often used because people don’t know if the car was going 85mph,
but they do know it was going fast.
 Can be rejected if it seems like speculation or guesswork.
 We don’t want the witness to make conclusions that overcome the jury’s
function. They are supposed to make the conclusions, not the witness.
FRE 601. Competency to Testify in General
Every person is competent to be a witness unless these rules provide otherwise. But in
a civil case, state law will govern the witness’s competency regarding a claim or
defense...
FRE 602. Need for Personal Knowledge
A witness may testify as to a matter only if evidence is introduced sufficient to support a
finding that the witness has personal knowledge. Evidence to prove personal
knowledge may consist of the witness’s own testimony. This rule does not apply to 703.
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.
FRE 604. Interpreter
An interpreter must be qualified and must give an oath or affirmation to make a true
translation.
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FRE 605. Judge’s Competency as a Witness
The presiding judge may not testify as a witness at the trial. A party need not object to
preserve the issue.
FRE 606. Juror’s Competency as a Witness
(a) At the Trial. A juror may not testify as a witness before the other jurors at the trial. If a juror
is called to testify, the court must give a party an opportunity to object outside the jury’s
presence.
(b) During an Inquiry into the Validity of a Verdict or Indictment
1. Prohibited Testimony or Other Evidence. During an inquiry into the validity of a verdict or
indictment, a juror may not testify about any statement made or incident that occurred
during the jury’s deliberations; the effect of anything on that juror’s or another juror’s
vote; or any juror’s mental processes concerning the verdict or indictment. The court
may not receive a juror’s affidavit or evidence of a juror’s statement on these matters.
2. Exceptions. A juror may testify about whether:
a. Extraneous prejudicial information was improperly brought to the jury’s
attention.
b. An outside influence was improperly brought to bear on any juror; or
c. A mistake was made in entering the verdict on the verdict form.
FRE 701. Opinion Testimony by Lay Witnesses
If a witness is not testifying as an expert, testimony in the form of an opinion is limited
to one that is:
(a) Rationally based on the witness’s perception;
(b) Helpful to clearly understanding the witness’s testimony or to determining a fact in
issue; and
(c) Not based on scientific, technical, or other specialized knowledge within the scope of
Rule 702.
Because it is difficult to tell opinion from fact, the rules allow some inferential testimony
in as long as it meets the three criteria of 701:
1. Rationally based on witness’s perception—must have personal knowledge from
FRE 602. Has to be something they witness on their own.
2. **Helpful to clearly understanding the witness’s testimony—is it helpful to a
jury!?
 The judge should only allow in the part of the inference that is helpful to the
jury to understand what actually happened- something that the jury couldn't
make up the opinion by themselves. Something that is part of being at the
event and being a witness.
 Ex. The car was going about 80 mph- I got a good look at it.
 Of course, the witness made the inference that the car was going 80
mph from senses at the scene of the event, but it would be very
difficult for the witness to describe the exact sounds, sights, feelings,
of being there and seeing the car speed past, so it’d be admissible.
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Lay Opinion Subjects Typically Allowed:
Collective Facts Doctrine: Allowed to convey some opinions generally using common
descriptive terms (He looked happy rather than lips curled up and twinkle in eye, etc)
because it’d be too hard for people to communicate exact perceptions.
 Appearance of objects (size color texture)
 Intoxication (I think he was drunk)
 Emotions (He looked happy)
 Descriptions (He was tall/young/weak/sick)
 Value of witness’s property
OK UNDER 701: Shorthand factual inferences; single events; helpful to jury
NOT OKAY UNDER 701: Speculation & general conculsions
-Trick with all of these is figuring out whether the testimony falls on the OK side of 701
or fall into too far opinion- not ok under 701.
-Decisions are almost always left up to judicial discretion.
-Cannot testify as to what another person thinks, feels, or intends. No amount of
observation or perception by a lay witness can support an inference or opinion about
another person’s thoughts or feelings.
Making the Record, Offers of Proof & Limited admissibility:
Making the Record
 Rule 103 states that in order to have any ground for an appeal we had to object
at the right time for the right reason and in the right way. Even then, it would be
hard to over turn trial. Appellate court must decide the error likely had an effect
on the outcome of the case to overturn it or a substantial right was forbidden.
o You always have to make sure you are on the record.
o 103(a) the objection has to occur at the first time the evidence is offered.
So if you miss a hearsay statement the first time, when it comes up again,
you’ve waived your objection to it. It has to be timely. If you miss it, you
are stuck under 103(e) plain error. AND you have to be right. If you object
on the wrong grounds, there is no error.
Making Objections
 Make them timely and state the specific legal grounds. A general objection is
deemed to be relevance.
 If you need more than a simple statement ask to be heard out of the presence of
a jury.
 Don’t be argumentative.
 If you make an objection, be sure the record reflects a ruling.
 If you want to keep objecting to the same thing but the judges attitude is clear,
ask the judge for a continuing objection to be clear on the record.
Offer of Proof
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
When lawyers show the judge and appellate court what the excluded evidence
would have been. Two ways to do this:
o Ask a question to the witness out of presence of jury
o Give a narrative as to what you anticipate the testimony to be at a side
bar.
Limiting Instructions
 Rule 105 relies on the presumption that jurors will follow limiting instructions (to
consider evidence for one purpose and not another).
 Judges may give limiting instruction without being asked or opponents of the
evidence can ask. If we don’t ask, the issue will be waived on appeal.
 Judges have to give it if it is proper.
 Strategy is important here. Telling a jury they can’t consider evidence for one
purpose might send up a red flag.
Redirect Examination
 Why questions are the best. No leading questions under 611(C)
Re-cross Examination
 Completely up to judge’s discretion.
 Use leading questions.
Rebuttal Evidence
 Limited to non-collateral matters first raised in defendants case in chief.
 Plaintiff cannot recall witness who have already testified to repeat testimony.
 Not an opportunity to have the last word.
 If ∆ says rebuttal is improper the π’s last opportunity is to ask judge for
permission to reopen case in chief in the interest of fairness and accuracy.
Sur-rebuttal Evidence
 Not typically allowed, but discretionary under FRE 611.
Motions in Limine
 If the objection has been made through a motion in limine and the motion is
denied (the evidence admitted at trial); then you do not need to renew your
objection at trial. If you won the motion in limine (evidence is excluded at trial),
then make sure the opposing counsel does not attempt to bring this evidence in
anyways- object if they try to.
 If you want to appeal a motion in limine, then you cannot open the door to
the evidence yourself (in an attempt to “ease the sting”)- because this would
be waiving your right to appeal. (Ohler Case)
 You can undermine the evidence after it is brought up on rebuttal.
*Be very cautious of order on exam & the bar…witnesses impeached after they’ve
testified and can only be rehabilitated after they’ve been impeached.
Expert Witnesses
Differences once you get a witness opinion?
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

Can rely on hearsay or other admissible evidence, as long as it is the type of
evidence that experts in the field typically use.
Must be qualified: personal knowledge outside the knowledge of the normal
person.
o Must lay foundation for personal knowledge.
FRE 702. Testimony by Expert Witnesses
A witness who is qualified as an expert by knowledge, skill, experience, training, or
education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of
fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.
FRE 703. Bases of an Expert’s Opinion Testimony
An expert may base an opinion on facts or data in the case that the expert has been
made aware of or personally observed. If experts in the particular field would
reasonably rely on those kinds of facts or data in forming an opinion on the subject, they
need not be admissible for the opinion to be admitted. But if the facts or data would
otherwise be inadmissible, the proponent of the opinion may disclose them (the
otherwise inadmissible evidence) to the jury only if their probative value in helping the
jury evaluate the opinion substantially outweighs their prejudicial effect. [403]
Sources:
1. Expert’s personal knowledge
2. Admitted evidence
3. Inadmissible evidence (under certain circumstances)
Limitations:
FRE 704. Opinion on an Ultimate Issue
(a) In General—Not Automatically Objectionable. An opinion is not objectionable just
because it embraces an ultimate issue.
(b) Exception. In a criminal case, an expert witness must not state an opinion about
whether the defendant did or did not have a mental state or condition that constitutes
an element of the crime charged or of a defense. Those matters are for the trier of fact
alone.
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Cross-Examination, Impeachment, and Rehabilitation
Questions
 1. What are you offering the evidence for? Substance or Impeachment?
 2. What box does it fall under? Bias? Capacity? Prior Conviction?
Contradiction? Prior inconsistent statements? Character for untruthfulness?
Conduct Probative of Untruthfulness? Treatises?
 3. Can you bring in extrinsic evidence to back up that impeachment?
o Always allowed or only collateral/non-collateral?
 4. Are we on direct examination or cross-examination?
o Different kinds of impeachment are allowed for each.
Rule 607. Who May Impeach a Witness
Any party, including the party that called the witness, may attack the witness’s
credibility.
 When a party attacks the credibility of his own witness, the examination is
subject to the rules that apply to cross exam
Rule 611. Mode and Order of Examining Witnesses and Presenting Evidence
(a) Control by the Court; Purposes. The court should exercise reasonable control over
the mode and order of examining witnesses and presenting evidence so as to..
 1) make those procedures effective for determining the truth;
 2) avoid wasting time; and
 3) protect witnesses from harassment or undue embarrassment.
(b) Scope of Cross Examination. Cross-Examination should not go beyond the subject
matter of the direct examination and matter affecting the witness’s credibility. The
court may allow inquiry into additional matters as if on direct examination.
(c) Leading Questions. Leading questions should not be used on direct examination
except as necessary to develop the witness’s testimony. Ordinarily, the court should
allow leading questions:
 1) on cross examination
 2) when a party calls a hostile witness, an adverse party, or a witness
identified with an adverse party.
Note- Cross examination to bring out impeaching matter is always proper.
Most Common Impeachment Methods
Two ways to impeach:
 Cross Examination
o Rules 608 & 609 define when to use
 Extrinsic evidence
o After the witness has testified, you put up another witness to impeach
their credibility.
o Only can do this if it is non-collateral
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Each of these numbered, bolded, underlined sections should be its own “impeachment
box” and has its own rules.
There are three types of impeachment for untruthfulness: Through a character witness
(reputation and opinion); specific acts of dishonesty (non conviction); and evidence of a
conviction.
Impeachment must be relevant.
Common law says a witness should first have the opportunity to be confronted
by the inconsistent statement first. Not a requirement though.
1. Bias, Interest and Motive
a. Bias & motive exists where there is a witness who has a frame of mind
that could color his testimony.
b. Interest exists where a witness’s relationship to a party or the lawsuit is
such that he stands to gain or lose, usually financially, from a particular
outcome.
c. Doesn’t have a specific rule, look to common law or 607 (attack on
credibility of witness) or 611(b) which allows cross on matters affecting
the credibility of a witness.
2. Religious Beliefs
FRE 610. Religious Beliefs
Evidence of a witness's religious beliefs or opinions is not admissible to attack or
support the witness's credibility
 Advisory Committee Notes: If the church or someone involved in the case as
a party then it may be admissible to prove interest or bias.
3. Prior Inconsistent Statements (FRE 613)
This is the only time we always have to think about collateral/non-collateral.
Only has hearsay issues if being offered for truth of the matter. We don’t care
about truth, we’re just trying to show he’s lying.
Inconsistent statements (other than obvious)
 A witness’s inability to recall info then later having a clear recollection of it
 Impeachment by omission: When a witness makes a statement about an
event and later testifies but adds important facts that they didn’t include
before.
 Silence when you would expect them to talk about it.
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Can be used in two different ways:
1. For Impeachment/witness credibility
 Relevant because it is different from what they said before.
 Does the prior statement/omission have a reasonable tendency to
discredit the testimony of the witness?
 Note- not all judges go by a collateral vs. non-collateral rule- many simply
use rule 403 balancing.
FRE 613. Witness’s Prior Statement.
(a) Showing or Disclosing the Statement During Examination. When examining a
witness about the witness’s prior statement, a party need not show it or disclose
its contents to the witness. But the party must, on request, show it or disclose
its contents to an adverse party’s attorney.
 The witness is given an opportunity to explain or deny the statement and
 We do not have to directly give them the opportunity. As long as
the other side has a chance, it is fine. They might not choose to
pursue it.
 An adverse party is given an opportunity to examine the witness about it,
or if justice so requires.
 Some courts require the witnesses be asked about the statement
first, before extrinsic evidence is brought. Rule doesn’t directly say
this though.
 How is this done?
o Extrinsic Evidence (prior testimony, prior written statement, prior
oral statement, statements in pleadings or discovery requests,
omissions) or
o Cross (Use the 4 C’s)
 Commit- You heard witness on direct say something
inconsistent than what you know. Commit them to the
testimony they claimed on direct. Date, time and place
should be established.
 Credit- You want to credit your prior testimony- make it
sound really strong. It was given closer to the
incident...the witness was sworn to tell the truth at that
time, etc.
 Confront- clearly; concisely. You read the inconsistent
statement.
 Complete- if necessary. If they deny and evidence is noncollateral, then bring in extrinsic evidence.
 Remember- if evidence is solely collateral, then you
are done and have to let it go.
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

Rule 613(b) must be followed.
Evidence must be dually relevant or indicate bias,
motive, capacity, or untruthful disposition.
Criminal ∆’s may be crossed on matters obtained in
violation of their constitutional rights (eg:
statements made in violation of Miranda) There is
no requirement that documents used to impeach
even be admissible.
(b) Extrinsic Evidence of a Prior Inconsistent Statement. 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 it, or if justice so requires.[does not
apply to 801d2]
 If a witness denies making the statement or equivocates about making it
with responses such as “I might have” or “I don't remember”, the cross
examiner is obligated to offer extrinsic evidence that the statement was
in fact made.
o However, the witness can only do this if the evidence is noncollateral. Extrinsic evidence is not admissible for collateral
evidence.
o There is no requirement that documents used to impeach be in evidence
or even admissible.
Collateral vs. Non-collateral:
Prior inconsistent statements and contradiction are the only two
categories where you have to decide whether the topic is collateral.
The General Rule: Extrinsic evidence cannot be used for impeachment by
prior inconsistent statement or by contradiction on a “collateral matter”.
The Traditional Definition of Collateral: A matter is collateral if the only
purpose for proving the fact in question is for contradicting the witness.
In other words: If the fact doesn’t matter to the case, but is only used for
impeachment, then it is collateral and no extrinsic evidence is allowed.
o Judge will let us prove something up if it is for anything other than
simply contradicting the witness.
o Therefore, for extrinsic evidence to be admissible, it must be
dually relevant.
 1. Always conflicts with original testimony, which
undermines credibility of witness
 2. May establish or refute a point with substantive
importance
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
3. May indicate bias or motive, defect in capacity, or
untruthful disposition
 4. May reveal a “telltale” deception
o COLLATERAL = relates to case only for 1st reason
o ADMISSIBLE = relates to case for 2nd, 3rd, or 4th reason also
The collateral evidence rule applies to all types of impeachment, but some other
categories are ALWAYS non-collateral (e.g. bias) and some are ALWAYS collateral
(608(b)).
2. For Substantive Evidence (for truth of the inconsistent statement)
 Relevant because you want to offer it for the truth of the prior
inconsistent statement.
 This obviously brings up a hearsay argument- hearsay is not admitted for
the truth of the statement itself. BUT we have an exception in the rules!
To get around the hearsay rule in cases where the prior inconsistent statement is
being used for substantive purposes—for the truth of what it asserts, the
evidence must use FRE 801(d)(1)(A). It must fit the requirements in FRE
801(d)(1)(A):
Rule 801(d) Statements That are Not Hearsay
(1) A Declarant-Witness’s Prior Statement. 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;
*If the evidence/statement does not fit these requirements of 801(d)(1)(A); then
it must be being offered for a purpose OTHER THAN the truth of what it asserts.
It must be being offered for pure impeachment purposes- bias, credibility, etc.
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Email from Moberly: 613 applies to all prior inconsistent statements, while
801(d)(1)(A) only applies to prior inconsistent statements that fit its
requirements (under oath in a prior proceeding, etc.). Also, the requirements of
801(d)(1)(A) take care of the concern addressed by 613 because 801(d)(1)(A)
requires that the declarant be available for cross-examination. Remember,
801(d)(1)(A) only applies to limited inconsistent statements, but when it applies
you can use the statement for its truth. Other, non-801(d)(1)(A) statements can
still be used, but only for impeachment, not for substantive use.
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4. Contradictory Facts




Same rules under contradiction as prior inconsistent statement, except it isn’t
just a “prior inconsistent statement”, but instead it is something directly
contradictory.
o Extrinsic evidence can be brought in, but again- only for non-collateral
issues.
Lawyer can only subject a witness to a contradictory fact if he has a good faith
basis for doing so and can prove that fact when required
Party witnesses need to be careful not to open the door to evidence that would
otherwise be inadmissible as character evidence under
contradiction/impeachment.
o Hypo: D is charged with selling narcotics. Testifies he’s never even seen
meth. Could bring in a prior arrest for meth.
Must either:
o 1-Be conflicting and somehow relevant to the case OR
o 2-Present a telltale fact (a lie so important that it is improbable the
witness would just be mistaken and must be lying).
 Example: Witness claims he was coming from an ice cream store
when he witnessed the accident on trial but evidence shows he
was at his wife’s funeral.
 This has nothing to do with the case, but its such a crazy lie
that it goes to show he should not be trusted at all.
5. Character for Untruthfulness
FRE 608. A Witness’s character for truthfulness or untruthfulness
(a) Reputation or Opinion Evidence
A witness’s credibility may be attacked or supported by testimony about
the witness’s reputation for having a character for truthfulness or
untruthfulness, or by testimony in the form of an opinion about that
character. But evidence of truthful character is admissible only after the
witness’s character for truthfulness has been attacked.
 Different from 405. Here, we can put the truthfulness of a
character at issue even though they didn’t put it in question.
 By taking the stand, you automatically give the other side
a chance to attack your credibility.
 We’re tying to say “You don’t tell the truth generally, so the jury
shouldn’t believe you now.”
 FRE 608(a) makes character of witness for truthfulness or
untruthfulness admissible.
 But evidence of truthful character is admissible only after the
witness’s character for truthfulness has been attacked.
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



This is an express exception to 404(a)(1) which states that you
cannot use character evidence for the propensity argument- you
can against witnesses to prove untruthful or truthful character.
Only applies to witnesses; but remember- someone can be both a
party and a witness.
Witness can be asked the names of the people who spoke about
the reputation to test for foundation.
Have you heard? (reputation). Do you know? (opinion).
No time limit on this evidence, but it could lose its probative value
under 403.
6. Conduct Probative of Untruthfulness
FRE 608. A Witness’s character for truthfulness or untruthfulness
(b) Specific Instances of Conduct







Except for criminal conviction, extrinsic evidence is not admissible to
prove specific instances of a witness’s conduct in order to attack or
support the witness’s character for truthfulness. But the court may, on
cross examination, allow them to be inquired into if they are probative of
the character for truthfulness or untruthfulness of:
1) the witness; or, 2) another witness whose character the witness being
cross-examined has testified about.
Only on cross-examination, evidence is not admissible on direct.
Drug use isn’t a character for untruthfulness, lying is though. Spectrum.
Typically when issues arise about this rule it is whether or not the character
or conduct is “probative of truthfulness” (particularly in (b) cases but also in
(a) cases).
No extrinsic evidence is allowed to prove that these specific instances
happened in the case that the Witness denies the instance’s occurrence.
Can use to impeach the facts a witness is testifying to or to impeach the
character of a witness!
Example: Can be crossed on the fact that they submitted a false loan
application to a bank last year.
Typically This overlaps with prior inconsistent statement.
7. Prior Convictions
**Remember always to distinguish between FRE 404 dealing with Defendants
testifying as Defendants, and FRE 608/609- Defendants testifying as witnesses.
a. 608/609 only applies to witnesses (includes criminal ∆ if he testifes)!!
Rule 609. Impeachment by Evidence of a Criminal Conviction
(a) In General. Witness’s character for truthfulness-1) for a crime that, in the convicting jurisdiction, was punishable by death
or by imprisonment for more than one year, the evidence:
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A) must be admitted, subject to Rule 403 in a civil/criminal case in
which the witness is not a defendant and
B) must be admitted in a criminal case in which the witness is a
defendant, if the probative value of the evidence outweighs its
prejudicial effect to that defendant and
2) for any crime regardless of the punishment, the evidence must be
admitted if the court can readily determine that establishing the
elements of the crime required proving a dishonest act or false
statement.
(b) Limit on using evidence after 10 years. Evidence of the conviction is only
admissible if:
1) its probative value substantially outweighs its prejudicial effect and
2) the proponent gives an adverse party reasonable notice
(c) Effect of a pardon, annulment, or certificate of rehabilitation is not admissible
if:
1) Conviction has been subject to one of these or other equivalent
procedure and the person has not been convicted of a later crime
punishable by death or imprisonment for more than one year or
2) the conviction has been the subject of a pardon, annulment, or other
equivalent procedure based on a finding of innocence.
(d) Juvenile Adjudications are admissible only if
1) it is offered in a criminal case,
2) The adjudication was of a witness other than the defendant
3) an adult’s conviction for that offense would be admissible to attack the
credibility and
4) admitting the evidence is necessary to fairly determine guilt or innocence.
 FRE 609(a)(1): Certain crimes may be admissible to impeach a witness (to
show character for untruthfulness), but only if convictions satisfy
appropriate balancing test:
o Two different balancing tests under this rule:
 1) Criminal Defendants: Probative value must outweigh
prejudicial effect. (“reverse 403 balancing test”)
 2) Everyone Else: 403 balancing test.
o Factors for 609 Balancing Test:
 Nature of the Conviction
 Recency or Remoteness of Conviction
 Whether it is similar to the charged offense
 Whether D’s record is otherwise clean
 Importance of credibility issues
 Importance of getting the D’s own testimony
 Whether conviction followed a plea of innocence in a trial
in which the alleged offender testifies and is convicted
anyways.
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


FRE 609(a)(2): Automatic Admissibility for a prior conviction for a crime
involving “dishonesty or false statement”.
o Not necessarily a felony like in 609(a)(1)- but any crime at all that
is directly probative of untruthfulness.
o Perjury, false statement, criminal fraud, embezzlement… (not
theft or drug dealing)
o When crimes of dishonesty or false statement are involved, Rule
403 does not apply and the trial judge has no discretion to weigh
prejudicial effect against probative value.
What is the effect of Rules 608/609 on Criminal Defendants?
o 1) Significant deterrent for Defendant to testify.
o 2) Difficult decision to make as an attorney- whether or not to let
your criminal D testify as a witness. Can’t appeal a motion in
limine that is going to allow in the criminal D’s evidence UNLESS
the criminal D actually testifies—from Luce case.
o 3) Attorney wants to “pad” past conviction, so D’s counsel brings
it up on direct. However, then, can’t appeal the conviction’s
admissibility at court. Because the P didn’t bring it up.
Crimes are non-collateral.
608 & 609 OVERVIEW:
 These rules only apply for truthfulness/untruthfulness (everything else will fall
under 404 or 405)
 Apply to all witnesses.
 Only extrinsic evidence allowed: reputation, opinion, proof of convictions
 These rules are a huge deterrent for defendants to take the stand.
o If they have a criminal history at all, it will likely come out under Rule 609.
o Would likely come out in a motion in limine prior to hearing.
 Defendant can take the stand and not put any of his normal character at issue,
but he still can’t protect it from coming in. 608 & 609 say character for
truthfulness of defendant can be attacked.
 There is no 403 backstop for 609(a)(2)!
 609(a)(1)(A) is subject to 403, but 403 is geared toward admissibility.
8. Treatises (FRE 803(18))
RULE 803(18): Statement in learned treatises, periodicals, or pamphlets if:
(A) The statement is called to the attention of an expert witness on cross or relied
on by the expert on direct and
(B) the publication is established as a reliable authority by the expert’s admission or
testimony by another expert testimony or by judicial notice.
o The most common use of treaties is on cross, where the examiner usually
attempts to show the witness’s testimony is not consistent with something in
the literature. Rule does not require that the treatise contradict the testimony,
30
o
o
o
o
simply that it be called to the attention. No requirement that the witness rely on
or even knows the existence of the treatise.
Using it on direct acts to establish the testimony. Have to use it on direct and
establish the authoritative nature of the treatise, its relevance of fact in this
case, and the witness’s reliance on it when reaching its opinions, then it may be
offered and read to the jury.
Three ways to establish reliability:
 Witness on stand recognizes it as authoritative or reliable whether or
not he agrees with it.
 The judge takes judicial notice of the authoritative or reliable nature of
the treatise under 201.
 A witness already called, or to be called later, by the proponent of the
evidence testifies that it is a reliable authority.
If it is permitted, statements from the treatise may be read into evidence but
may not be received as exhibits.
Requires good faith.
9. Rehabilitations
Timing Issue for Test!! --**Cannot make someone out to be truthful unless their
credibility has already been attacked on cross examination.
FRE 801(d)(1)(B): Exclusions from Hearsay
(d) Statements That Are Not Hearsay. A statement that meets the following
conditions is not hearsay:
(1) A Declarant-Witness's Prior Statement. The declarant testifies and is
subject to cross-examination about a prior statement, and the statement:
(B) Is consistent with the declarant’s testimony and is offered to
rebut an express or implied charge that the declarant recently
fabricated it or acted from a recent improper influence or motive
in so testifying.
*This is the idea that consistent statements (vs. inconsistent statements) have
the same value towards the credibility of the witness, and out of fairness, are
admissible to rehabilitate the witness after cross examination.
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The Last Three Boxes:
• Interaction of 608(b), Prior Inconsistent Statement, Specific Contradiction
– Normally, these overlap: if extrinsic evidence is not permitted by 608(b),
it would also not be permitted by the other two impeachment
mechanisms because it would be “collateral”
– Unless you can argue that the information is not collateral for some
reason, such as fairness when a party makes an overly broad claim on
direct that can be contradicted.
Note: There are 3 ways to impeach witnesses for untruthful character: 1) Reputation
and Opinion Evidence (608a); 2) Evidence of non-conviction dishonest acts (608b); 3)
Evidence of Convictions (609).
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Real Evidence—Exhibits
Real Evidence—Hurdles to Admissibility
1. Relevance
2. Personal Knowledge (of witness)
3. Non-prejudicial
a. 403 argument. It will of course be somewhat prejudicial.
4. Authentication
a. Is it what it purports to be? How do you prove this is what you say it is?
5. Non-Hearsay
a. All documents, by definition are statements made outside of court, so we
need an exception
6. Original Documents (Best Evidence) Rule
a. Is it the original or an authorized copy? Do contents of the document
matter?
7. Is it right?
a. Blood stained clothes would be too prejudicial, even though they might
be relevant and reliable.
Real v. Demonstrative Evidence
 Real evidence is the actual object (gun) and you have to show it was in the
same condition as itw as on the relevant date and it hasn’t been tampered
with. Think about the chain of custody.
 Demonstrative evidence is whether there is a fair and accurate
representation of the item (picture)
Civil v. Criminal Cases
 Civil: Parties have a right to extensive pretrial discovery and resolve most
admissibility issues before trial
 Criminal: Discovery is limited and admissibility issues are common in trials.
Judges treat authentication issues in criminal cases more seriously.
You cannot read from, argue, or talk about a document if it is not admitted into
evidence.
Laying the Foundation: Asking questions that make the evidence “sufficient to support a
finding that the item is what the proponent claims” Can’t ask of details before it is
received into evidence. Showing that the witness has personal knowledge,
authenticating.
Most Courtrooms have developed procedures to lay foundation for an exhibit:
1) Have the exhibit marked
2) Show the exhibit to opposing counsel
3) Ask the court’s permission to approach the witness
4) Show the exhibit to the witness
5) Lay the foundation for the exhibit
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6) Offer the exhibit in evidence
7) Have the exhibit marked in evidence (if required).
FRE 901. Authenticating or Identifying Evidence
(a) In General—To satisfy the requirement of authenticating or identifying an item of
evidence, the proponent must produce evidence sufficient to support a finding that the
item is what the proponent claims it is.
(b) Examples—List of evidence that satisfies the requirement:
1) Testimony of a witness with knowledge; 2) Non-expert opinion about
handwriting; 3) Comparison by an Expert Witness or the Trier of Fact; 4)
Distinctive Characteristics and the Like; 5) Opinion about a voice; 6) Evidence
About a Telephone Conversation; 7) Evidence About Public Records; 8) Evidence
about ancient documents or data compilations; 9) Evidence about a process or
system; 10) Methods provided by a statute or rule.
Notes:
 Authentication: Must be able to prove that the document is what it purports to
be.
o Authentication is something you need to satisfy with real evidence. Like
how you need to satisfy non-hearsay for all kinds of evidence.
 Standard under 901: “Sufficient to support a finding that the item is what the
proponent claims that it is.”
o ***This is a Rule 104(b) decision- made by the jury, not 104(a)
 Since it is Rule 104(b) factual decision, you must first provide
sufficient admissible evidence to prove that the document is what
it purports to be. Judge will decide whether a reasonable jury
could conclude that is what it is purported to be.
 When you are talking about authenticity, you are talking about reliability.
 The fact that the opposing side may present contradicting testimony about the
evidence does not preclude it from being admitted into evidence.
 Two different ways that real evidence can be identified: 1) Sensory
Identification; 2) Chain of Custody.
 Often, what you are offering the evidence to prove makes a difference with how
you need to authenticate.
FRE 902. Evidence That is Self-Authenticating
The following items of evidence are self-authenticating; they require no extrinsic
evidence of authenticity in order to be admitted:
(1) Domestic Public Documents That Are Sealed and Signed(2) Domestic Public Documents that are not sealed but are signed and certified(3) Foreign Public Documents(4) Certified Copies of Public Records
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Must be certified as correct by the custodian or another person authorized to
make the certification or a certificate
(5) Official Publications
 A book, pamphlet, or other publication purporting to be issued by a public
authority.
(6) Newspapers and Periodicals
(7) Trade Inscriptions and the Like
(8) Acknowledged Documents- by notary public
(9) Commercial Paper and Related Documents
(10) Presumptions Under a Federal Statute
(11) Certified Domestic Records of a Regularly Conducted Activity
 Think about hearsay here. Might still need a custodian to come testify
(12) Certified Foreign Records of a Regularly Conducted Activity
Presumption for these docs is that the exhibit is authentic. Don’t need to lay foundation
for them since they are self authenticating. Judge determines whether it is selfauthenticated under 104(a). Usually done before trial.
Notes:
 902 is another way to authenticate. However, all of these things are simply “selfauthenticating”—don't need to lay foundation for them.
 Rationale: These documents under 902 are thought to be more reliable than
other documents- satisfy the reliability function.
Other Types of Evidence
Demonstrative Evidence: Not the actual thing, but represents the actual thing—Photos,
diagrams, models, etc. To authenticate, must call someone with personal knowledge.
 Must make sure photos and models aren’t distorted.
 Magic words: “Fairly and Accurately Represent”
Documents/Instruments: Admitted for non-hearsay reasons. Ex. contracts have
independent legal significance- not admitted for the truth of what is said in the contract,
but for the fact that the contract was made and existed. To authenticate- introduce the
signature verified by handwriting witnesses.
Electronic Evidence:
 Lorraine v. Markel American Insurance Co.
o Moberly really likes the analysis here—good review of reasoning and
rules for admitting exhibits.
o Suit between insurance claimant and insurance company. Both parties
moved for summary judgment and neither party produced admissible
evidence to support facts set forth in their motions.
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o
o
o
o
o
o
o
First, relevance- under FRE 401, 402, 105.
Next, authentication under FRE 901.
Next, hearsay requirements under FRE 801.
Next, FRE 1001-1001- original documents rule.
Lastly, FRE 403 balancing test.
Motions dismissed w/out prejudice.
Raised issue of Electronically stored information
 In short, there is a significant difference between the way that
Rule 104(a) and 104(b) operate. Because, under Rule 104(b), the
jury, not the court, makes the factual findings that determine
admissibility, the facts introduced must be admissible under the
rules of evidence. It is important to understand this relationship
when seeking to admit ESI. For example, if an e-mail is offered into
evidence, the determination of whether it is authentic would be
for the jury to decide under Rule 104(b), and the facts that they
consider in making this determination must be admissible into
evidence. In contrast, if the ruling on whether the e-mail is an
admission by a party opponent or a business record turns on
contested facts, the admissibility of those facts will be determined
by the judge under 104(a), and the Federal Rules of Evidence,
except for privilege, are inapplicable.
 When thinking about emails and cell phones, we have to think
about who had access to the computer/cell phone and when. It
becomes vastly more difficult when we think about the electronic
format because there are so many more ways to fake it.
HOWEVER, it is the same because you are trying to get enough
evidence for a reasonable jury to think it could have been from
him. We don’t need special rules, but we have to think about how
it is being offered, what it is being offered for, and how we can get
it in.
Major Documentary Hearsay Exceptions
Documents will always create a hearsay problem when you are trying to use them for
the truth of what the documents say.
Three Questions you always must ask about documents:
1. Relevance
2. Authenticity
3. Hearsay?
Refreshing Recollection (FRE 612) vs. Past Recorded Recollection (FRE 803(5))
Both deal with forgetful witnesses and trials that happen a long time after the fact.
FRE 612. Writing Used to Refresh a Witness’s Memory
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(a) Scope. This rule gives an adverse party certain options when a witness uses a writing
to refresh memory
1. While testifying; or
2. Before testifying, if the court decides that justice requires the party to have
those options.
 FRE 612 permits a witness to use a writing “to refresh memory” while testifying.
Adverse party is permitted to inspect writing and cross-exam about it [(b)].
o Ex: Which car failed to stop at the stop sign officer? I don’t recall. Would
anything help refresh your recollection? Yes, my report.
 Court can excise parts that are not related to the testimony before it is produced
to the opposing party. Adverse side could also bring this up. [(c)].
 Idea: Individual ends up testifying from present memory. Testifying from
personal knowledge that needed to be refreshed.
 Judge uses discretion to weigh whether it should be brought in or not because it
could break attorney/client privilege or work product doctrine. Judge will weigh
the necessity for disclosure against the need to protect the writing.
 Doesn’t have to be writing. Can be a leading question.
 Can’t just read from the document. Memory has to be truly refreshed.
o Trial judge has discretion. If it is a nurses records or something hard to
remember specifics, they could allow her to read from the document.
FRE 803. Exceptions to the Rule Against Hearsay
(5) Recorded Recolleciton. A record that:
(A) Is on a matter the witness once knew about but now cannot recall well
enough to testify fully and accurately;
(B) Was made or adopted by the witness when the matter was fresh in the
witness’s memory; and
(C) Accurately reflects the witness’s knowledge


If, even having one’s memory refreshed does not help the witness remember
what happened, then it becomes necessary to get the recorded recollection
admitted into evidence. Obviously this presents a hearsay problem. FRE 803(5)
is the exception to use to admit the recorded recollection.
**If admitted, the record is read into evidence as if it were testimony; however it
may not be received as an exhibit—unless offered by an adverse party.
Otherwise:
o It will be read as if it were testimony. Can be in whole or in part.
o Offered for its truth.
 Lay foundation, they say “I offer this as a recorded recollection,
may I read it to the jury?”
Business Records
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803(6) Records of a Regularly Conducted Activity. A record of an act, event, condition,
opinion, or diagnosis if:
(A) The record was made at or near the time by or from information transmitted
by someone with knowledge.
(B) The record was kept in the course of a regularly conducted activity of a
business, organization, occupation, or calling, whether or not for profit;
Record has a broad recognition, when it was created. Use 406 if we don’t
know
(C) Making the record was a regular practice of that activity and;
(D) All these conditions are shown by the testimony of the custodian or another
qualified witness, or by a certification that complies with Rule 902(11) or (12) or
with a statute permitting certification; and
(E) Neither the source of information nor the method or circumstances of
preparation indicate a lack of trustworthiness.
Generally, documents prepared for litigation are not trustworthy.
Elements:
 Record of an act, event, condition, opinion, or diagnosis.
 Record made at or near the time of the transaction.
 Someone with knowledge can certify the record—“custodian”.
o Source of info must come from personal knowledge. Often the record
maker won’t have personal knowledge and only relies on other sources
of info. If the info is offered for its truth, it must come from the source??
o Person testifying to foundation for business record must be its custodian
or other witness
 Witness doesn’t have to have personal knowledge of the contents
of the record or how it was made. They can be anyone who can
explain the way the records like the one in question are made and
kept. No requirement that they actually know who the person
was who made the record or supplied the info.
 Record was kept in the course of a regularly conducted activity and making the
record was a regular practice of that activity.
o Not enough that it was written down. Has to be something that is
typically recorded. Routine recording assures accuracy.
o Doesn’t have to happen every day though. If a business is burglarized, a
report will suffice.
o Opinions or diagnoses must be made at or near the time of events about
which it was made.
o A record created merely to support an expert’s opinion will not qualify.
o Includes illegal business.
o Exception to duty to report: The person making the record doesn’t have a
duty to report so long as someone has a duty to verify the reported info
(prison record book)
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




If the record fits under Rule 902(11) or 902(12), then don't need to have a
custodian come testify- it becomes self-authenticating.
Trustworthiness- most common example of non-trustworthiness- documents
made in preparation for litigation.
Often involves layers of hearsay. Employees add to each other’s recorded work.
Each recording fits this exception.
o Requires each person in the chain act in the course of their duties with
reasonable speed and the source of the info be a person with knowledge.
o Outsider statements incorporated in a business document need their
own hearsay exception.
Lay the foundation thoroughly.
Hearsay within Hearsay!!! WATCH FOR THIS!
o Statements from sources not having a business duty to report and record
accurately are usually hearsay. Governed by rule 805.
o Ex: A bystander tells an officer “it was the blue car who ran the light” the
police report with the statement is not admissible for the truth of the
matter. Bystander is not under a duty to report accurately. It’d be the
same as a cop on the stand testifying to the bystanders statement.
 If it was an excited utterance, it would have its own hearsay
exception and be okay.
Rationale: If a business depends on having accurate and complete records to run the
business competently, such records are reliable enough to qualify as a hearsay
exception.
Public Records
(8) Public Records. A record or statement of a public office if
(A) It sets out:
(i) the office’s activities; (ii) a matter observed while under a legal duty to
report, but not including, in a criminal case, a matter observed by lawenforcement personnel; or (iii) in a civil case or against the government
in a criminal case, factual findings from a legally authorized investigation;
and
(i) Must be reasonably necessary for the performance of the
agency’s duties and the record must not be prepared for specific
litigation. (Hunting licenses issued)
(ii) Exception: allows routine reports that are prepared in a nonadversarial setting (calibration on breathalyzer). Defendants
cannot offer police reports even if they are helpful. (But they can
try to get it in saying the rule was meant to protect defendant)
(B) Neither the source of information nor other circumstances indicate a lack of
trustworthiness
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Notes:
Rationale- Reliability. Public employees, just like private employees, have a business
duty to report and record accurately.
 There are three types of public records:
o 1) Those setting forth the activities of the office or agency.
o 2) Those recording matters observed pursuant to a legal duty.
o 3) Investigative reports.
 Two Limitations:
o 1) May be excluded if “sources of information or other circumstances
indicate lack of trustworthiness”.
o 2) Certain types of public records are inadmissible in criminal cases.
 No reports of matters observed by police officers and other law
enforcement personnel.
 No investigative reports against criminal defendants.
 No requirement that the document be made and kept in the
course of a regularly conducted activity nor does it require that a
report be made at or near the time the event it records. Also does
not require either the maker of the record or the source of the
info speak from personal knowledge of the matter.
 Records don't need to be open to the public, just means any government
document, but any public record will be government.
 Instead of offering a witness, the foundation can be satisfied by a declaration
that qualifies as self-authenticating under 902(11)&(12).
Learned Treaties
803(18): A statement is called to the attention of an expert on cross or relied on by the
expert on direct and the publication is established as a reliable authority by the expert
or by another expert or by judicial notice.
 Statement may be read into evidence but not received as an exhibit.
 We might have to call our own witness to testify that it is reliable.
The Original Documents Rule
Rule 1001: DEFINITIONS THAT APPLY TO THIS ARTICLE
(a) A “writing” consists of letters, words, numbers, or their equivalent set
down in any form.
(b) A “recording” consists of letters, words, numbers, or their equivalent
recorded in any manner.
(c) A “photograph” means a photographic image or its equivalent stored
in any form.
(d) An “original” of a writing or recording means the writing or recording
itself or any counterpart intended to have the same effect by the person
who executed or issued it. For electronically stored information,
“original” means any printout — or other output readable by sight — if it
40
accurately reflects the information. An “original” of a photograph
includes the negative or a print from it.
(e) A “duplicate” means a counterpart produced by a mechanical,
photographic, chemical, electronic, or other equivalent process or
technique that accurately reproduces the original.
FRE 1002. Requirement of an Original
An original writing, recording, or photograph is required in order to prove its content
unless these rules or a federal statute provides otherwise.
FRE 1003. Admissibility of Duplicates
A duplicate is admissible to the same extent as the original unless a genuine question is
raised about the original’s authenticity or the circumstances make it unfair to admit the
duplicate.
FRE 1004. Admissibility of Other Evidence of Content
An original is not required and other evidence of the content of a writing, recording, or
photograph is admissible if
(a) all the originals are lost or destroyed, and not by the proponent acting in bad faith;
 If it is not the proponent’s fault that the evidence is destroyed- then other
evidence of the content may be admissible.
(b) an original cannot be obtained by any available judicial process;
(c) the party against whom the original would be offered had control of the original; was
at that time put on notice, by pleadings or otherwise, that the original would be a
subject of proof at the trial or hearing; and fails to produce it at the trial or hearing; or
(d) the writing, recording, or photograph is not closely related to a controlling issue.
Rule 1005: COPIES OF PUBLIC RECORDS TO PROVE CONTENT
The proponent may use a copy to prove the content of an official record — or of a
document that was recorded or filed in a public office as authorized by law — if these
conditions are met: the record or document is otherwise admissible; and the copy is
certified as correct in accordance with Rule 902(4) or is testified to be correct by a
witness who has compared it with the original. If no such copy can be obtained by
reasonable diligence, then the proponent may use other evidence to prove the content.
Rule 1006: SUMMARIES TO PROVE CONTENT
The proponent may use a summary, chart, or calculation to prove the content of
voluminous writings, recordings, or photographs that cannot be conveniently examined
in court. The proponent must make the originals or duplicates available for examination
or copying, or both, by other parties at a reasonable time and place. And the court may
order the proponent to produce them in court.
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
Proponent of the summary has to be able to produce originals or duplicates so
that the other side can check accuracy.
 Assumes all the evidence would be properly presentable in court. If the
opponent can show that a summary reflects or incorporates inadmissible
evidence, the summary should not be admitted.
 A summary should always be disclosed before trial so that the other party is not
unfairly disadvantaged at trial and the judge can resolve any disputes.
Rule 1007: TESTIMONY OR STATEMENT OF A PARTY TO PROVE CONTENT
The proponent may prove the content of a writing, recording, or photograph by the
testimony, deposition, or written statement of the party against whom the evidence is
offered. The proponent need not account for the original.
Rule 1008: FUNCTIONS OF THE COURT AND JURY
Ordinarily, the court determines whether the proponent has fulfilled the factual
conditions for admitting other evidence of the content of a writing, recording, or
photograph under Rule 1004 or 1005. But in a jury trial, the jury determines — in
accordance with Rule 104(b) — any issue about whether:
(a) an asserted writing, recording, or photograph ever existed;
(b) another one produced at the trial or hearing is the original; or
other evidence of content accurately reflects the content
Notes:
1. When Does the Best Evidence Rule/Original Docs Rule Apply?
a. When testimony is being used to prove the contents of a writing.
i. If this testimony is being offered, the rule requires that the
original document instead be present and used as evidence.
b. FRE 1003- Duplicates will suffice. However, when you use a duplicate you
subject yourself to two possible defenses—
i. Questions about authenticity.
ii. Questions about fairness of substituting the original for the
duplicate.
c. The rule does not apply to collateral matters.
2. Original writings rule does not apply to every item of proof that there is a
writing, recording, or photo that might constitute more persuasive proof.
a. Ex: If a doctor testifies, we do not need to see her license b/c it is not the
main issue in the case.
3. Boiled down: Prevents talking about an exhibit before it is admitted unless you
satisfy 1004. If you want to talk about it, you have to submit it first.
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Hearsay
Hearsay is about reliability- because hearsay is generally thought to be unreliable, it is
not allowed in evidence. Sometimes we want it in because it is necessary for fair results
to be achieved.
 Other policy considerations: opportunity to cross-examine to determine
reliability, perception, memory, sincerity, and ambiguity.
801(a)-(c)
801(d)
802
803
804
805
806
807
Definitions for Hearsay
Exclusions from Hearsay definition
Hearsay inadmissible unless it falls within
exception
Unrestricted exceptions – Availability of declarant
immaterial
Declarant Unavailable
Permits the admission of hearsay within hearsay
Allows hearsay to be used to attack/support
credibility of out-of-court declarant
Residual Exception
Questions to ask for Hearsay:
4. Is it hearsay fitting the definition of hearsay? 801(c)
a. Out of court assertion offered for its truth
i. When it is not an assertion (more of a natural reflux, we trust it)
5. Does it fit within a hearsay exception?
6. Confrontation clause issue?
Silence is a non-assertion and is often tested over. Silence can only be used as an
assertion hen there is a duty to respond or a typical person would respond.
FRE 801. Definitions that Apply to this Article; Exclusions from Hearsay
(c) Hearsay. “Hearsay” means a statement that:
1) The declarant does not make while testifying at the current trial or hearing;
and
2) A party offers in evidence to prove the truth of the matter asserted in the
statement.
Definition:
1. Statement: Can be oral, written, or non-verbal conduct but it must be intended
as an assertion
2. Declarant: Person who made the assertion
3. Hearsay: Statement that the declarant does not make while testifying at the
current hearing and the party offers to prove truth
4. Truth: Ask what is this statement being offered to prove?
a. Hearsay statements can be admissible for other purposes.
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Assertive vs. Non-assertive Definition:
 Always look at the intent- was the person intending the statement to be
asserted?
o Verbal conduct is almost always asserted.
o Ex: A ship has sunk at sea. Families of the survivors bring a lawsuit
claiming that the ship was not sea-worthy. The insurance
company ∆ wants to present testimony from a witness who saw
the ship’s captain inspect the boat before it sailed and then sail
with his family on board.
 This is NOT an assertion by the captain. He is just doing his
job.
 However, if we change the facts to say that the crew had
felt nervous about whether or not the ship was safe, and
the captain called them out to show them his inspection of
the ship, then this would be sending a message—an
assertion.
o How do you make an inference from conduct that is not an
assertion?
 ConductBelief
 BeliefFact
 Here, you can infer that the captain believed the
ship was seaworthy since he inspected the ship and
then sailed it. You can then infer that the ship
actually was sea-worthy.
o Ex: ∆ fleeing the state after the crime.
o This is not assertive conduct. However, a jury may believe from
the action that they are fleeing because they were guilty from the
crime. The jury then may take that belief (if it is strong enough)
and infer it to be a fact.
 Silence is not typically deemed to be an assertion.
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When is a statement NOT offered for the truth of the matter asserted?
 Three most typical reasons:
o Impeachment
 Out of court statements of a witness that are inconsistent with
the witness’s in court testimony are not hearsay if they are
offered only to prove that the witness said something different at
an earlier time.
 Under FRE 613(a)&(b) the have the ability to explain/deny the
statement.
 Doesn’t matter if it is true or not. Just matters that the person
perceiving the statement is on the stand. The jury can judge their
demeanor.
o Verbal Acts—Independent Legal Significance:
 Some conduct/actions can only be taken verbally and the fact that
words are spoken is enough to satisfy some legal consequence.
We don’t care about its truth, just that they said it.
 Examples:
 Giving perjured testimony;
 Offering to sell contraband;
 Demanding ransom;
 Blackmail;
 Slander/libel;
 Assault
 Firing someone
 Offer/acceptance in contract.
o Effect on Listener or Reader
 Out of court statement used to show why a listener acted in a
certain way; motive, intent, fear, reasons for acting/not acting a
certain way.
 That motive, fear, etc. must be relevant & material.
 Motive Ex: Testimony that Leslie told Joe she wanted a divorce.
Not hearsay if used to show Joe’s motive. Hearsay if used to show
that Leslie actually wanted a divorce.
 Notice Ex: When a store patron is overheard telling the manager
that there is a slick spot by the frozen foods it is evidence the
store had notice of the condition.
 Fear Ex: “I’m going to kill you if I see you again” is not hearsay
because it doesn’t matter whether they meant the statement, just
showing fear.
 Action Ex: Police get anonymous tip so they went to the house
and found drugs.
The Sixth Amendment Confrontation Clause
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“In all criminal prosecutions, the accused shall enjoy the right...To be confronted with
the witnesses against him...”
Confrontation Clause is only an issue in criminal cases—not in civil cases.
Statement made out of court:
1. Hearsay?
a. Does it fall within an exception?
2. Is this a criminal case?
a. Does the confrontation clause apply?
i. Is the statement testimonial?
1. If it is testimonial, then it isn’t allowed in unless the
declarant has been cross-examined.
a. Has or can the declarant be cross-examined?
For every out of court statement [CRIMINAL CASE], need it to satisfy two separate things
1) Hearsay (state law); 2) Confrontation clause (federal constitutional law).
The Confrontation Clause is very broad, vague, and leaves open many interpretive
questions:
1. Can any cross-examination by the D, at any time, satisfy the language of the
Clause?
2. Can the prosecution ever introduce statements from out of court declarants?
3. What is the interaction between the Confrontation Clause and the hearsay rules
we will be studying?
Ohio v. Roberts
Two-pronged Approach:
1. “Necessity” Prong: Declarant must be “unavailable” before a hearsay statement is
admitted
2. “Reliability” Prong: Only reliable hearsay can be offered.
• Reliable if it falls within a “firmly rooted” HS exception
• If not, can still be admitted if there is a showing of “particularized guarantees” of
trustworthiness
*Crawford Court’s problems with the Ohio v. Roberts test:
o “Reliability”: gives the judges a lot of discretion. Results in conflicting
rules.
o Scalia is really worried about statements made with “an eye towards
prosecution”-statements in affidavits and statements made to police
officers.
 **This allows court to employ people to go get “testimonial”
statements and then use the testimony in court.
o Also, it applies the same mode of analysis whether or not the hearsay
consists of ex parte testimony.
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Crawford v. Washington
Crawford stabbed a man [Kenny Lee] who allegedly tried to rape his wife. At trial, the
State played for the jury Sylvia’s tape recorded statement to the police describing the
stabbing, even though he had no opportunity for cross examination. Crawford’s
statement makes it seem as though Kenny Lee had a knife in his hand, therefore,
Crawford has a defense of self-defense. Sylvia’s statement makes it seem as though
Kenny Lee did not have a knife in his hand—therefore, no self-defense. Sylvia had
spousal immunity. Can Sylvia’s statement to the police come in without her testifying?
Reasoning: Court examines the common law behind the 6th Amendment and the right to
confront one’s accusers.
Holding: Where testimonial evidence is at issue, the Sixth Amendment demands what
the common law required—*1) unavailability and a *2) prior opportunity for crossexamination. “Where testimonial statements are at issue the only indicium of reliability
sufficient to satisfy constitutional demands is the one the Constitution actually
prescribes—confrontation.”
o What is “testimonial”? Court here only defines what is testimonial at a
minimum:
 Ex parte in court testimony or its functional equivalent—
affidavits, custodial examinations, business record if prepared in
anticipation of trial, counselor’s reports, prior testimony that the
D was unable to cross examine, or similar pretrial statements that
declarants would reasonably expect to be used prosecutorially...
 Statements that were made under circumstances which would
lead an objective witness to believe that the statement would be
available for use at a later trial.
o What is “non-testimonial”?
 Off hand, overheard remark.
 Statements made in furtherance of criminal conspiracy.
Rule from Crawford:
The Rule:
Out of court testimonial statements by declarants are not admissible against
criminal Ds UNLESS:
 1) D has opportunity to cross declarant at present trial OR
 2) a) The declarant is unavailable AND b) the D had a prior opportunity to crossexamine the Declarant.
**Only applicable when the out of court statement is being offered for its truth.
Davis: Michelle called 911 and said her former bf was beating her up. The victim does
not want to testify at the trial of her bf. Can this 911 call come in? Is it testimonial?
 Holding: The 911 call is non-testimonial.
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o Reasoning: Ongoing emergency. Michelle was not worried about giving
testimony for some trial at a later period in time. She was not under oath
and was simply interested in getting help to her immediate emergency.
Hammon
Police respond to a “reported domestic disturbance”. Husband and wife are separatedin different rooms with an officer with each of them. Wife gives oral statement to police,
as well as signs a written “battery affidavit”.
o The affidavit is within the core of what Crawford talks about- it is
definitely not admitted as testimonial.
o The oral statement?
 Holding: The emergency was over. She was being questioned by
the police. Testimonial.
 A sworn statement is always testimonial.
Problem: Cases come about where the rule of “ongoing emergency” is not dispositive
enough. Then the Court gets Michigan v. Bryant.
Michigan v. Bryant
Bryant was convicted of murder because of the statements that the victim made at the
scene of the crime describing Bryant as his assailant. At the time of the statement, the
shooter was still “at large” and the victim was in critical medical condition—he died
shortly afterwards.
Issue: Is this statement by the victim testimonial or non-testimonial?
o Is it taken in response to an ongoing emergency, and thus, non-testimonial, and
thus, admissible as an excited utterance?
o Was the primary purpose of the police’s questioning to establish the facts of an
event that already occurred or was it to enable police assistance to meet an
ongoing emergency?
Rule: Primary Purpose Test- “Statements are non-testimonial when made in the course
of police interrogation under circumstances objectively indicating that the primary
purpose of the interrogation is to enable police assistance to meet an ongoing
emergency. They are testimonial when the circumstances objectively indicate that
there is no such ongoing emergency, and that the primary purpose of the interrogation
is to establish or prove past events potentially relevant to later criminal prosecution.”
 Objective factors to look at:
o Speaking about events as they are actually happening.
o Statements elicited to resolve a current emergency.
o Existence of a medical emergency.
o What would the reasonable person have taken as the purpose of the
questioner’s interrogatories?
 Black letter law: Was it to create testimony or respond to an emergency?
Holding: Non-Testimonial.
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There are two ways that you can satisfy the confrontation clause requirements even if
the statement is determined to be testimonial:
1. The Defendant has the opportunity for cross-examination at the current trial OR
2. The witness is unavailable AND there has already been the opportunity to cross
examination.
a. What is “unavailable”?
i. Defined in FRE 804.
Remember
 Reliability is no longer used in the confrontation clause analysis.
 Can use testimony taken in an ongoing emergency.
 If it is non-testimonial, confrontation clause doesn’t matter and we just have to
worry about hearsay.
 Only applies to statements offered for their truth.
Statements that are NOT Hearsay
Hearsay exclusions and exceptions are generally carved out based on two concepts:
1. Reliability: Some out-of-court statements, because of the circumstances under
which they are made, are inherently reliable.
2. Necessity: Sometimes the choice is between evidence that bears some risk of
unreliability and no evidence at all—necessity sometimes dictates that the
evidence be admitted.
General rationale for hearsay exception rules is that where reliability and necessity coexist, then the rule against hearsay need not apply.
Summary of Hearsay Exceptions:
Statements that are NOT Hearsay [Exclusions]: FRE 801(d)(1) and 801(d)(2)
Statements excluded from Hearsay, even if the declarant is unavailable for trial: FRE 803
Statements excluded from Hearsay out of necessity, only because the declarant is
unavailable: FRE 804.
Availability of Declarant for Hearsay Exceptions:
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FRE 801(d). Statements That Are Not Hearsay
Prior Statements
FRE 801(d)(1) A Declarant- Witness’s Prior Statement. 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 deposition.
*Three elements here- Declarant subject to cross; inconsistent; given
under oath. Still have to satisfy 613 & give them opportunity to
explain/deny.
*We know we can use this for impeachment, but this makes it so we can
use it for the truth as well (substantive evidence)
B. Is consistent with the declarant’s testimony and is offered to rebut an express or
implied charge that the declarant recently fabricated it or acted from a recent
improper influence or motive in so testifying; or
*Three elements here- declarant subject to cross, consistent with
testimony, offered before recent motive to fabricate
*Timing is really important here.
-Have to be accused of lying before bolstering evidence.
-Example #1:
In an assault case, victim goes to police to file report and is
accused of lying on trial, can’t use the statement made to
the police to rebut the accusation b/c they would have had
the same motive to lie at the police station. *Can be
admitted for its truth.
-Example #2:
Day 1: witness says blue car had the light
Day 2: Witness meets blue car driver & becomes friends
Day 3: Witness repeats observation
Trial: Same as above
(Here, you could offer the Day 1 consistent statement to
rebut the suggestion of bias. If you used day 3, then it
would not rebut the assumption. It confirms the motive.)
*Can’t use just to bolster the testimony.
C. Identifies a person as someone the declarant perceived earlier.
*Three elements—1) declarant subject to cross examination; 2)
statement is one of identification of a person; 3) statement is made after
perceiving the person.
Rationale—identifications of people made prior to trials are likely to be
more accurate than identifications made during testimony.
*NE does not have the equivalent of 801(d)(1)(C).
*Can be consistent or inconsistent.
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Type of Statement
Consistent
Required to Have
Been Made under
Oath?
No
Inconsistent
Yes
When Admissible?
Only to rebut
claimed improper
influence or recent
fabrication
Always
Party Admissions
FRE 801(d)(2) An Opposing Party’s Statement. The statement is offered against an
opposing party and:
A. Was made by the party in an individual or representative capacity;
 Can be oral, written, non-verbal.
 If it is made by a declarant in a representative capacity, its relevant. Doesn’t
matter if they were acting in that capacity when they made the statement.
 Any words/acts by a criminal ∆ before arrest are admissible against him as
admissions. After arrest, constitutional principles apply.
B. Is one the party manifested that it adopted or believed to be true;
 Can be words, conduct, or silence.
 Example: When A says to B, “I am sorry I had to shoot the bank teller, but it
was the only way to get the money” and b says, “You’re right” or nods his
head, B adopts A’s statement as his own and is not hearsay when offered
against B.
 Example: Silence after one driver says to the other “you ran the red light” is
deemed to be an admission.
 Could be conditionally relevant as to whether the person heard/understood
and assented to the truth. Has to be clear the party adopted the statement.
C. Was made by a person whom the party authorized to make a statement on the
subject;
 Hard to prove. Agents are rarely authorized to make a statement that
damages their principal. (lawyer against their client).
D. Was made by the party’s agent or employee on a matter within the scope of that
relationship and while it existed; or
 See notes below.
E. Was made by the party’s coconspirator during and in furtherance of the
conspiracy.
 See notes below
*In FRE 801(d)(2), the declarant need not testify, but it can only be used by the party
against the declarant. Declarant has to be a party. MUST BE USED AGAINST PARTY.
 Statements that are offered for truth when they come in.
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



Rationale—This is an adversarial system, this is war, any statement you make
can be used against you.
o It is fair that parties should be asked to own up to their prior statements.
Only can be used against the opposing party. A party cannot bring in their own
out of court statements under this rule.
Can be used for its truth as an admission or to impeach an inconsistent
statement.
Party who makes the admission doesn’t have to be given a chance to
explain/deny it or be at trial. 613(b) doesn’t apply.
Three principles to keep in mind:
1. A party cannot offer the party’s own out-of-court statement into evidence as
an admission.
2. Any statement can qualify as a party statement, regardless of whether or not
it confesses wrongdoing or was in any way against the party’s interests at the
time it was made.
3. A party’s out-of-court statement can qualify as an admission regardless of
when it was made.
FRE 801(d)(2)(D): Statement is being offered against an opposing party and was made
by the party’s agent or employee within the scope of that relationship and while it
existed
 Elements:
a. The statement is offered against the party;
b. The declarant was the adversary’s “agent or servant”;
c. The statement concerns “a matter within the scope of the agency or
employment”; and..
d. The statement was “made during the existence of the relationship.”
 Agent does not have to be authorized to speak.
 Judge will decide initial fact under 104(a) preponderance of the evidence.
 Have to prove the person was an agent with more evidence than just this
statement.
 A lawyer’s clear statement cannot bind his client.
 Agent/employee does not have to be identified.
 Out of court statements of law enforcement agents are not admissible against
the government in criminal cases.
Three issues under 801(d)(2)(D):
1. Personal knowledge
Statements by a party can be used against them even if they had no idea that
they had testified, had said that, or were making an admission.
2. Within the scope of employment
Includes:
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1. Statement that describes speaker’s own behavior in performing his duties
(whether well or badly);
2. An account of activities by another person and appraisals of the work of the
other if the speaker is responsible to supervise, oversee, or direct the other;
3. A description of events or conditions that are naturally of concern to the
speaker in performing his duties;
4. An account of company practices or policies relating to the speaker’s
responsibilities;
5. An account of orders the speaker got from someone in authority, and related
behavior by the person giving orders;
6. Findings made by the speaker in investigating acts or events on behalf of his
employer; and
7. Statements relaying messages from the speaker’s superior to others.
3. Bootstrapping problem
 Many times, with hearsay exceptions or with non-hearsay, the determination
that the evidence is not hearsay depends upon a factual determination—
o Ex. That the declarant was the agent of a party [801(d)(2)(D)] OR
o That the declarant was in a conspiracy [801(d)(2)(E)].
 In these cases, the judge will need to determine if the declarant fits this criteria
[ex. if he is an agent] through admissible and non-admissible evidence under FRE
104(a).
o So, the judge can use the statement seeking to be admitted itself to
determine whether or not the declarant is [ex.] an agent.
 The judge will need to determine the procedural factual question by a
preponderance of the evidence under 104(a).
 The judge is only deciding this fact for procedural purposes—if an issue in the
case is whether or not the declarant is an agent, the jury may still find otherwise
since they are deciding by a different standard—by beyond reasonable doubt
standard for the substantive decision.
 Difference between the procedural decision for evidentiary reasons (by the
judge under 104a) and the substantive decision (by the jury).
Admissions made in a conspiracy – FRE 801(d)(2)(E)
Elements:
1. The statement is offered against a party
2. That party and the declarant were in a conspiracy
3. The statement was made during the existence of the conspiracy
4. The statement was made in furtherance of the conspiracy
This takes all statements made by all and any co-conspirators and allows them to be
used against you in court.
Applies in both civil & criminal cases.
In criminal cases, once the co-conspirator has been arrested, his statements are
not in furtherance of a conspiracy.
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There is no necessity of being charged with conspiracy, only a factual determination by
the judge under FRE 104(a) of whether or not there was a conspiracy. (doesn’t have to
be a conspiracy case)
 Person who testifies does not have to be part of the conspiracy, they just had to
have overheard it.
o Declarant has to believe he is making the statement in furtherance of…


May have to prove up conspiracy to the judge in order to get this allowed.
o By a preponderance of the evidence, there needs to be evidence of some
sort of joint enterprise.
o Again, the judge may use otherwise inadmissible evidence to determine
whether or not there was a conspiracy, therefore, the judge may use the
statement itself to determine whether or not there was a conspiracy.
Policy- by proving up conspiracy, you are proving up liability.
Confrontation clause will never apply because they will never be testimonial
statements.
The most used argument for co-conspirator statements will be over what is “in
furtherance” of the conspiracy. “In furtherance” is usually where you will want to focus
on a test.
 Will always look SUBJECTIVELY at whether the declarant himself believed the
statement to be in furtherance of the conspiracy.
o Ex. Even if the statement was made to an undercover DEA officer, the
declarant still believed the statement to be in furtherance of the
conspiracy.
o Judge will usually admit them then if they aren’t proven by end of case
they’ll be stricken.
 Theory: Co-conspirator’s will be reliable because they want to
further their conspiracy. They won’t lie to each other because it
wouldn’t get done.
 Type of Co-conspirator statement that WILL NOT be allowed into trial: “Bud
bought the cocaine”—this is just a statement. Unless it is made to convince
someone of something in furtherance of the conspiracy, this statement, by itself,
is not in furtherance and will be excluded.
o Casual conversation about past events would not be “in furtherance”
Exceptions to the Rule Against Hearsay—Regardless of Whether the Declarant is
Available as a Witness
FRE 803 Advisory Committee Notes: 803 proceeds upon the theory that under
appropriate circumstances a hearsay statement may possess circumstantial guarantees
of trustworthiness sufficient to justify nonproduction of the declarant...even though he
may be available
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
Rationale: These particular exceptions are seen to be very reliable.
o So reliable that it doesn’t matter whether the out of court declarant is
available or doesn’t testify
FRE 803. Exceptions to the Rule Against Hearsay—Regardless of Whether the
Declarant is Available as a Witness
The following are not excluded by the rule against hearsay, regardless of whether the
declarant is available as a witness:
Hearsay exception procedure:
 1-Evidence must be relevant under 401-402 and 404-406.
 2-Other considerations of reliability outside hearsay rules that must be
satisfied. Personal knowledge requirement 602; authentication 901-902;
original writings rule 1001-1004.
 3-There may still be policy reasons to exclude it under 403, 407-415 & 501
803(1)-(4)—Spontaneous Statements: Allowed in because they are “part of the event”
or res gestae. Therefore, since they are part of the actual event, they are thought to be
reliable—contemporaneous, lack of reflection, therefore, the declarant must have
meant what they were saying. No motive to fabricate.
*Yes, confrontation clause WILL be implicated with these statements. Must go through
and make sure that they are non-testimonial.
*Read advisory committee notes
1. Present Sense Impression. A statement describing or explaining an event or
condition, made while or immediately after the declarant perceived it.
o Spontaneity! Key to establishing this exception is the length of time
between the event or condition and the statement about it.
o Theory is that they didn’t have time to fabricate a story.
o Declarant could testify, but doesn’t have to.
o Statement can be admitted even if declarant denies making it.
o Declarant does not have to be identified.
o Elements:
 1) Statement must be contemporaneous with the event or
condition (at the same time or immediately after);
 2) Speaker must have perceived the event or condition (personal
knowledge);
 3) Statement must describe or explain the event or condition.
o In Nebraska- this rule doesn’t exist.
o Example: A witness to a burglary is on the phone and described the
robber. The friend can testify as to what the witness described.
o Harder to satisfy than excited utterance b/c it has to be right away.
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2. Excited Utterances. A statement relating to a startling event or condition, made
while the declarant was under the stress of excitement that it caused.
o Spontaneity is the key factor—it must be as the result of a startling event.
o Elements:
 An external stimulus that is startling;
 An excited reaction;
 A statement that relates to the stimulus;
 Made while under the stress of the startling event.
o Subjective excitement—was the person who made it excited? Judge will
decide this. Can argue more since it is subjective.
o Not necessarily a statement made immediately after the event like
present sense impression. Ex. Someone may still make an excited
utterance after being removed from the locale--their “excitement”
persists.
 Courts tend to be lenient in sexual assault cases allowing more
time.
o Can’t talk about something that happened in the past.
 “Tom has a gun and he’s grabbed Jane! He’s been threatening to
do this for weeks!” (The first part would be admitted, not the 2 nd)
o Distance is not an issue. Could happen miles away.
o Statement can be admitted when the declarant denies making it.
o Could contain opinion or accusation:
 “Look out! That car is speeding” …still admissible.
3. Then existing mental, emotional, or physical conditions. A statement of the
declarant’s then-existing state of mind (such as motive, intent, or plan) or
emotional, sensory, or physical condition (such as mental feeling, pain, or bodily
health), but not including a statement of memory or belief to prove the fact
remembered or believed unless it relates to the validity or terms of the
declarant’s will.
o State of mind- including, intent, plan, motive, design, mental feeling, pain,
and health.
 Eg: I’m frightened, I love you, my back is killing me.
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
o
o
o
o
o
Can be used as circumstantial evidence that the person did what
they intended to do. [Hillmon case]
 Hillmon Case: Disagreement over whether husband’s
statement that he will “head towards Witchita” may be
allowed in under this rule as circumstantial evidence that
he went to Witchita.
o Hillmon Doctrine: Evidence of a person’s intent to
commit an act can be offered as proof that she
later committed that act.
o This can be admitted as forward looking
circumstantial evidence.
 CANNOT use statements of memory- that
are backward looking!
o Just of the declarant...can’t use the statement for
the forward-looking actions of a secondary person.
Declarant must be referring to his own present mental, emotional, or
physical condition, not someone else’s.
 Eg: Cannot say the declarant said, “I’m going to the beach for the
party. John is going to meet me there.” When John is on trial for
murder, can say “I’m going to the beach” because it shows her
future conduct, but cannot offer it to show John’s.
NOT including a statement of memory or belief to prove the fact
remembered or believed [cannot be backward looking] UNLESS it relates
to the execution, revocation, identification, or terms of declarant’s will.
 Ex: Can’t say “He has poisoned me” right after they drank form
the bottle.
Can be used to admit scientific survey evidence:
 In deciding whether doctors used promotional pitches by
pharmacy companies, surveying their then existing state of mind
and impressions from the companies can be used.
Rationale: When someone states how they are currently feeling, this is
the best evidence of how they are actually feeling. Allowed in moreso
because of NECESSITY than reliability.
Distinction between 803(3) vs. Circumstantial Evidence of SoM
 If it is Circ. Evid of SoM, then it is not hearsay under 801(c). Not
used for the truth of the statement
 “I have at least 350K on hand to get started” Cannot be
used to show he had money.
 803(3) is direct evidence about how someone is feeling use it
for the truth.
4. Statement Made for Medical Diagnosis or Treatment—A statement that:
a. Is made for—and is reasonably pertinent to—medical diagnosis or
treatment; and
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b. Describes medical history; past or present symptoms or sensations; their
inception; or their general cause.
 Reliability rationale is based on patient’s strong motivation to be
truthful to get effective medical care.
 Distinction from FRE 803(3) State of Mind: These statements are
backwards looking.
 Statement must be reasonably pertinent to medical diagnosis or
treatment—statements of fault ordinarily do NOT come within
this exception.
 A patient’s statement that he hurt his neck in a car
accident would qualify but not his statement that the car
was driven through a red light.
 Statements of causation allowed. Statements of fault not.
 This exception and this fault exception is used most frequently in
rape cases. Where the victim doesn't want to testify. Out of
necessity.
 However, huge confrontation clause implications here.
 A child abuse victim’s statement identifying the abuse as a
member of their household is admissible. Relevant to the
patient’s future physical and emotional health.
 Statement doesn’t need to be made to doctor (can be a nurse,
therapist, ambulance attendant, etc)
 A non-treating doctor may testify regarding statements made for
medical diagnosis, even though the real purpose for the
examination was to qualify the doctor to testify at trial.
 This issue could be brought out on cross examination so
the jury isn’t mislead.
Documentary Exceptions
FRE 803 (5-18). Exceptions to the Rule Against Hearsay—Regardless of Whether the
Declarant Is Available as a Witness
5. Recorded Recollection. A record that:
a. Is on a matter the witness once knew about but now cannot recall well
enough to testify fully or accurately;
b. Was made or adopted by the witness when the matter was fresh in the
witness’s memory; and
c. Accurately reflects the witness’s knowledge.
 If admitted, the record may be read into evidence but may be
received as an exhibit only if offered by an adverse party.
 Cross referenced with 612—refreshing recollection and recorded
recollection. Witness must have made or adopted the statement
while it was fresh in his mind.
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
Once the foundation is laid, say “I offer this as a recorded recollection,
may I read it to the jury?”
6. Records Of A Regularly Conducted Activity. A record of an act, event, condition,
opinion, or diagnosis if:
a. The record was made at or near the time by someone with knowledge;
b. The record was kept in the course of a regularly conducted activity of a
business, organization, occupation, or calling, whether or not for profit;
c. Making the record was a regular practice of that activity.
d. All these conditions are proven by testimony of the custodian or other
qualified witness, or by certification that complies with FRE 902(11)/(12);
and
e. Neither the source of information nor the method or circumstances of
preparation indicate a lack of trustworthiness.
 Often is a layer of hearsay. Employees add to each other’s work. Each
recording has to fit the exception. Requires each person in the chain act
in their duties reasonable and the source of the info be a person with
knowledge acting in the course of their responsibilities.
 Have to lay foundation thoroughly and satisfy each element.
 Has to be something that is typically recorded, not just a one-time thing.
Doesn’t require day to day though, if a business is burglarized, a report
will be sufficient.
 Watch for hearsay w/in hearsay.
7. Absence of a Record of a Regularly Conducted Activity. Can be evidence if
a. The evidence is admitted to prove the matter did not occur or exist
b. A record was regularly kept for a matter of that kind and
c. Neither the possible source of the information nor other circumstances
indicate a lack of trustworthiness.
8. Public Records. A record or statement of a public office if
a. It sets out:
i. The office’s activities;
ii. A matter observed while under a legal duty to report, but not
including, in a criminal case, a matter observed by lawenforcement personnel; or
iii. In a civil case or against the government in a criminal case, factual
findings from a legally authorized investigation; and
b. Neither the source of information nor other circumstances indicate a lack
of trustworthiness.
10. Absence of a Public Record
a. Showing the record or statement does not exist or
b. A matter did not occur or exist if a public office regularly kept a record for
that kind.
18. Statements in Learned Treatises, Periodicals, or Pamphlets. A statement
contained in a treatise, periodical, or pamphlet if:
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A. The statement is called to the attention of an expert witness on crossexamination or relied on by the expert on direct examination; and
B. The publication is established as a reliable authority by the expert’s
admission or testimony, by another expert’s testimony, or by judicial notice.
 Three ways to establish reliability of a treatise—1) witness on stand
recognizes it as authoritative; 2) judge takes notice of it as authoritative;
3) witness called at some point testifies it is reliable.
 This is the only impeachment method that applies solely to experts.
 Be careful for Rule 106 completeness.
21. Reputation Concerning Character. A reputation among a person’s associates or
in the community concerning the person’s character.
 Character evidence in reputation form can sometimes be used as direct
evidence if it is an essential element in the case. 404 & 405 permit it for
circumstantial proof. 608 allows it to attack truthfulness or rebut that attack.
 Must be directed to the proper time frame & witness must be qualified to
testify about it. Must testify that they have heard people in the community
talk about the kind of person the other is.
Exceptions to the Rule Against Hearsay—Where the Declarant is Unavailable as a
Witness
FRE 804
First, requires a showing that the declarant is unavailable by one of the means in FRE
804(a)(1)-(5).
 Note: FRE 804 does not apply if the statement’s proponent wrongfully caused
the declarant’s unavailability.
Second, the statement must fit within one of the exceptions enumerated in 804(b).
(a) Criteria for Being Unavailable. A declarant is considered to be unavailable as a
witness if the declarant:
1. Is exempted from testifying about the subject matter of the declarant’s
statement because the court rules that a privilege applies;
2. Refuses to testify about the subject matter despite a court order to do so;
3. Testifies to not remembering the subject matter;
4. Cannot be present or testify at the trial or hearing because of death or a thenexisting infirmity, physical illness, or mental illness; or
5. Is absent from the trial or hearing and the statement’s proponent has not been
able, by process or other reasonable means, to procure:
a. The declarant’s attendance, in the case of a hearsay exception under Rule
804(b)(1) [Former Testimony] or (b)(6) [statement offered against party
who wrongfully caused declarant’s unavailability]; or
b. The declarant’s attendance or testimony, in the case of a hearsay
exception under Rule 804(b)(2) [statement under belief of imminent
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death], (3) [statement against interest], or (4) [statement of family
history].
But this subdivision (a) 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.
-5(a) and 5(b) exceptions are a little difficult. Its former testimony. We’re
using 5(a) You cannot compel anyone to come to court unless you have the
power of subpoena. If we were in federal court, you have to be within 100
miles of the district court. In state court, state courts only have in-state
powers. Some federal statutes allow for nation wide subpoena power (antitrust) etc.
(b) The Exceptions. The following are not excluded by the rule against hearsay if the
declarant is unavailable as a witness:
1. Former Testimony. Testimony that:
a. Was given as a witness at a trial, hearing, or lawful deposition, whether
given during the current proceeding or a different one; AND
b. Is now offered against a party who had—or, in a civil case, whose
predecessor in interest had—an opportunity and similar motive to
develop it by direct, cross-, or redirect examination.
o This rule includes the minimum requirements for 804(b)(1) to
apply:
 1) Witness must be “unavailable”
 2) Declaration must be testimony given in another hearing
or in a deposition
 3) Opportunity for cross examination by the opposing
party OR a predecessor in interest
 Difference here between criminal and civil. Actual
party in criminal. Predecessor in interest in civil
cases.
o What is a predecessor in interest?
 Must show more than the same
motive and opportunity to cross
examine.
 Must show that the parties have
some sort of relationship to one
another or are “within the same
community” of interest.
 Usually this is some sort of privity of
contract or outside relationship.
 4) With a similar motive to develop testimony.
*Biggest test issue: Opportunity to cross examine?
Confrontation Clause Implications: Yes, you would to do the analysis
here. However, the Confrontation clause exception enumerated in
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Crawford is the same requirements of 804(b)(1). The exceptions overlap.
Confrontation Clause has the same requirements for testimony to be
admitted-- if the D is unavailable and there was a prior opportunity to
cross-examine.
2. Statement Under the Belief of Imminent Death. In a prosecution for homicide
or in a civil case, a statement that the declarant, while believing the declarant’s
death to be imminent, made about its cause or circumstances.
Dying declaration. Rationale: People will not lie when they are on their
deathbed.
Limited to civil cases and criminal homicide cases.
Elements
1) Declarant must be unavailable (he’s dead)
2) Declarant must have expected to die soon after making the statement.
*Saying, “I’m dying. Vito shot me” helps
3) Must be based on personal knowledge of the declarant.
4) Must concern the “cause or circumstances” of impending death.
 James Washington case—he was about to die of a heart attack
and confesses of a murder done years before.
 Even though it fits policy, it does not fit definition of dying
declaration!!
 The statement must concern the “cause or circumstances”
of impending death.
o Dying declarations are essentially an exception to the confrontation
clause.
o Declarant doesn’t have to actually die, just has to think he’s going to.
3. Statement Against Interest. A statement that:
a. The reasonable person in the declarant’s position would have made only
if the person believed it to be true because, when made, it was so
contrary to the declarant’s proprietary or pecuniary interest or had so
great a tendency to invalidate the declarant’s claim against someone else
or to expose the declarant to civil or criminal liability; and
b. Is supported by corroborating circumstances that clearly indicate its
trustworthiness, if it is offered in a criminal case as one that tends to
expose the declarant to criminal liability.
Elements:
1) Declarant must be “unavailable”
2) AGAINST- statement must be “so contrary” to declarant’s interest that
a reasonable person in declarant’s position would not have made the
statement unless believing it to be true. Declarant’s statement against
himself!
3) Interest: The only interests that count are pecuniary(financial),
proprietary (property) or penal interests (criminal)
4) Criminal Exception: A statement tending to expose the declarant to
criminal liability AND offered in a criminal case is NOT admissible UNLESS
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corroborating circumstances clearly indicate the trustworthiness of the
statement.
*Williamson Case: Sometimes the statement may be against the
declarants’ own interest, but it is much more unfavorable to a
codefendant. What if the declarant has struck a plea bargain? Does this
still serve the policy behind allowing in statements against interest? Is
this statement truly AGAINST the declarant’s interests in a plea bargain
situation?
 Factors: Is there a plea bargain involved? Whose interests are
more at stake in the statement? Given all circumstances is it
really against their interest?
Declarant does not have to be a party!
Examples:
-I owe John $100, I shouldn’t have drank so much before I drove
home, I shouldn’t have jammed my breaks without warning. I
gave Mary the diamond as a present. “I drove the getaway car but
Joe robbed the bank” Only admissible party would be the first.
-In a malpractice case against the doctor he seeks to have the
nurses statement “I made a big mistake in there” admitted. If you
could show she’s unavailable, then it’d be admissible.
Trustworthiness Inquiry:
1. The relationship between declarant and accused
2. The declarant’s motives for making the statement
3. The extent to which the statement was against the declarant’s
interest
4. The number of people who heard the statement and the
specificity of their accounts of the statement
5. What kind of person the speaker is
6. The time and circumstances of the making of the statement
7. The existence other evidence corroborating the statement.
4. Statement of Personal or Family History. A statement about:
a. The declarant’s own birth, adoption, legitimacy, ancestry, marriage,
divorce, relationship by blood, adoption, or marriage, or similar facts of
personal or family history, even though the declarant had no way of
acquiring personal knowledge about that fact; or
b. Another person concerning any of these facts, as well as death, if the
declarant was related to the person by blood, adoption, or marriage or
was so intimately associated with the person’s family that the declarant’s
information is likely to be accurate.
5. Statement Offered Against a Party That Wrongfully Caused the Declarant’s
Unavailability. A statement offered against a party that wrongfully caused—or
acquiesced in wrongfully causing—the declarant’s unavailability as a witness,
and did so intending that result.
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o If the statement is offered against a party and that party caused the
declarant’s unavailability and did so with intent for that result.
o Wrongdoing should not enable one to have an advantage.
o ∆ waved confrontation clause with his actions.
FRE 805. Hearsay Within Hearsay
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.
 These issues arise almost exclusively within the business & public records.
 Lawsuit: Paul v. Dan for Assault
o Paul calls Wally Witness to testify. Wally testifies:
 “Andy ran up all excited and said ‘Dan told Paul he was going to
punch him in the nose’”.
 Dan’s statements will always be available as a party opponent.
 Andy said Dan told Paul. This is an excited utterance.
 Need two different hearsay exceptions- one for Andy, one for Dan. Not hearsay
because all the layers are solved!
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FRE 806. Attacking and Supporting the Declarant’s Credibility
When a hearsay statement—or a statement described in Rule 801(d)(2)(C)/(D)/(E)—has
been admitted in evidence, the declarant’s credibility may be attacked, and then
supported, by any evidence that would be admissible for those purposes if the declarant
had testified as a witness. The court may admit evidence of the declarant’s inconsistent
statement or conduct, regardless of when it occurred or whether the declarant had an
opportunity to explain or deny it. If the party against whom the statement was
admitted calls the declarant as a witness, the party may examine the declarant on the
statement as if on cross-examination.
 Basically, whenever a declarant’s statements come in under a hearsay exception,
then the other side can attack the declarant for impeachment purposes. As
always, we need to know if the declarant has bias or credibility issues.
 613 requirement that they be allowed to explain or deny is eliminated (which
makes sense b/c they are out of court)
FRE 807. Residual Exception
(a) In General. Under the following circumstances, a hearsay statement is not excluded
by the rule against hearsay even if the statement is not specifically covered by a hearsay
exception in Rule 803/804.
1. The statement has equivalent circumstantial guarantees of trustworthiness;
2. It is offered as evidence of a material fact;
3. It is more probative on the point for which it is offered than any other evidence
that the proponent can obtain through reasonable efforts; and
4. Admitting it will best serve the purposes of these rules and the interests of
justice.
(b) Notice. The statement is admissible only if, before the trial or hearing, the
proponent gives an adverse party reasonable notice of the intent to offer the statement
and its particulars, including the declarant’s name and address, so that the party has a
fair opportunity to meet it.
 Rationale: Nervous about having limited exceptions—want to have a catch-all
exception if the hearsay statement is extremely necessary in
 Both a substantive (a) and procedural (b) requirement in FRE 807:
o Substantive:
 Applies to a statement not otherwise specifically covered by the
rules, but having equivalent circumstantial guarantees of
trustworthiness.
 Evidence of a material fact [necessary].
 More probative on the point for which it is offered than any other
evidence [necessity]; and
 General purposes of the rules and interest of justice will be best
served by admittance.
o Procedural Requirements:
 Timely Notice
 Provide particulars of statement to the opponent.
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Counter-arguments to FRE 807:
 No opportunity to cross-examine, in front of a jury, to determine reliability.
o Under oath?
 Is it a non-material fact? A collateral issue? Don’t want to get into a trial within a
trial.
 Is there other evidence that might be more probative on the point?
Proponent must make the hearsay statement seem absolutely necessary to the case and
absolutely reliable, or else you can attack it under all of these points.
 Must be: trustworthy, necessary, material, satisfy general pruprose of rules and
interest of justice under 102 and give notice.
Privileges
FRE 501. Privilege in General
The common law—as interpreted by US courts in the light of reason and experience—
governs a claim of privilege unless any of the following provides otherwise:
 The US Constitution;
 A federal statute; or
 Rules prescribed by the S.Ct.
But in a civil case, state law governs privilege regarding a claim or defense for which
state law supplies the rule of decision.





Privileges have a different mission than other rules of evidence.
o This mission is societal. Just serves a goal outside of the litigation process.
Usually to protect a relationship where we think there needs to be
privacy in communication. Not reliability.
Be aware of parallel rules of professional responsibility.
Privileges are not codified in FRE- but some states have codified them.
o Just have FRE 501 & 502
Where does it come from? The FREs that were rejected by Congress are the very
places that Federal courts look to to see if the common law has this kind of
privilege.
o These are called the “Standards 501-513”.
 Many have become basis for federal common law of privileges
STEPS:
o 1- Which jurisdiction’s laws apply?
 Federal criminal & Federal question Federal common law
 Federal diversity & state  State law
o 2- Who is the holder of the privilege? (Who is it intended to benefit?)
o 3- Is there a waiver or a termination of privilege?
Marital Privilege: Two Types:
The Communication Privilege- privilege related to confidential spousal communications.
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


Provided by federal common law
Applies in civil OR criminal cases
Applies to communications between spouses during the course of their marriage.
o Privileged communications remain privileged even if marriage dissolves.
o But, communications that occur after the marriage dissolves are not
privileged.
 Intent matters- did the couple intent the communication to be confidential?
Privilege doesn’t attach if spouses didn’t intend communications to be
confidential. Judge will often times have to make a 104(a) determination here.
 Exceptions: When there is a divorce proceeding, no communications privilege.
o Exceptions include:
 Legal proceeding between spouses
 Prosecutions for crimes against spouse or crimes against their
children
 On-going criminal activity (Joint Participant exception) – may be
limited by jurisdiction
 Reason for this privilege: We want people to be comfortable in their marriage.
 Nebraska Rule:
o Both hold the privilege. Other can always stop the other one.
o Communication must be private- only between the two spouses and
intended to be confidential.
o Communications during marriage remain privileged even after the
marriage ends.
The Testimonial Privilege—privilege against adverse spousal testimony.
 Standard 505:
o Provides the Testimonial privilege only (no communications privilege).
o Applies only in criminal proceeding!
o Can be claimed by either accused or spouse. (HOWEVER, Tremmel does
not follow Standard 505- so this is not the actual rule.)
 Exceptions:
o Crime against spouse or child or their property
o Matters occurring before marriage (jurisdictions don’t all agree)
 Rationale: We don't want people to be able to get married to
assert the privilege.
o Proceedings involving prostitution
 Rationale: just seen as unseemly that one spouse should have to testify against
another spouse.
 Not limited to disclosure of confidential communication.
 Typically required they are married at the time of testimony. Can’t be evoked
after divorce.
 Doesn’t apply when the spouse is asked to testify to objective facts having no
direct adverse impact on the party spouse.
 Who holds the privilege?
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o Defendant spouse cannot assert the privilege. [Tremmel] However, this is
not what Standard 505 says- Standard 505 says that either spouse holds
it.
 *this will be on test/ bar or final!
o Trammel v. Standard 505:
 Trammel
 Does NOT apply Standard 505
 Holds that only testifying spouse holds the privilege not to
testify. Accused cannot prevent spouse from testifying.
o Privilege is meant to protect the one testifying, so if
they want to, we should let them.
 Does not address communications privilege
 Applies only in criminal cases
 Exceptions include:
o Legal proceeding between spouses
o Prosecutions for crimes against spouse or their
children
o On-going criminal activity (Joint Participant
exception) – may be limited by jurisdiction
o Matters occurring before marriage (some courts)
 Standard 505
 Can be claimed by either spouse (testifying or defendant)
o NE Testimonial rule:
 “During the existence of the marriage, a husband and wife can in
no criminal case be a witness against the other. This privilege
may be waived only with the consent of both spouses.”
 Notice: Difference from Trammel- falls in line with
Standard 505.
 Exceptions: crimes against spouse/children; claims of one spouse
against the other; divorce cases.
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The Attorney-Client Privilege
 Standard 503: Elements—
o 1) Confidential Communication
 Intent to be confidential.
o 2) Between Privileged Parties
o 3) To Facilitate the Rendition of Professional Legal Services
 Rationale—Necessary to encourage full and frank communications.
o There is a famous argument against Attorney Client privilege on the basis
that it protects the guilty.
o Counterargument: Clients don't necessarily know what their legal rights
are.
 They might hide something that might be very helpful to them,
just because they are embarrassed and don't want it to come into
court.
 Also, you may be talked out of the fact that you committed a
crime.
 Also, you want to come to lawyers to ask whether or not you can
lawfully do something....then be able to act lawfully. Can’t have
your attorney then later testifying that you came to them asking
advice about this.
 Upjohn v. US
o Thomas, general counsel of Upjohn was told to conduct an internal
investigation as to “questionable payments” to foreign governmental
officials. This internal investigation took place as a result of the findings
of an internal auditor. In order to avoid tax fraud, the company
immediately submitted a form to the IRS disclosing certain questionable
payments. The IRS then demanded all the questionaires sent out to
Upjohn employees in the internal investigation. Upjohn declined to give
them up.
o Rationale for Lawyer Client Privilege: The lawyer-client privilege rests on
the need for the advocate and counselor to know all that relates to the
client’s reasons for seeking representation if the professional mission is
to be carried out...to encourage clients to make full disclosure to
attorneys....out of necessity. A lawyer needs to have all facts to carry out
his mission professionally.
o Distinguishes between two tests Control Group Test- upper level officials
 Atty/Client privilege can include any employee who has important
information to give the attorney that the attorney needs- Upjohn
expands to include this group, WHEN
 Upjohn Factors:
o Communications were made by employees to
corporate counsel
o At the director of corporate superiors
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
o For the purpose of obtaining legal advice
o Regarding matters within the employees’ duties
o Employees knew the communications were for
legal purposes
o Communications were considered “highly
confidential”.
o Need to understand the difference between the control group test and
the Upjohn test.
 Upjohn is the federal rule, states may have their own rules.
Bergan’s notes on UpJohn:
o Attorney Client Privilege: Documents could be privileged under attorney
client communications. UpJohn is getting at who is the client when the
company is a client.
o Rule before Upjohn was “attorney client communications w/in the
control group would be privileged but anything else would not be
privileged.” This means that if a lower level employee talked to a
corporate attorney, it would not be privileged. It didn’t allow the
attorney to go and investigate and it was hard to determine who was in
the control group.
o Look at the Upjohn factors. Once it is privileged, the other side can’t ask
about it.
o The facts don’t disappear just because they are privileged. The only thing
that cannot be allowed in is what the attorney
o Could ask everything the employee witnessed, but couldn’t ask what the
employee said to the attorney or what the attorney said to the employee.
o Work product doctrine: Need a showing of undue burden and substantial
hardship without it. FRCP Rule 26 sets this out.
o Advice to Wells Fargo manager to get good information and give good
legal advice?? President sends a letter saying, Richard Moberly is our
attorney, he is going to speak to you about legal advice about this issue.
These will be considered confidential conversations so that we can get
the best advice as to how to deal with this issue.
Waiver
• Standard 511:
• Can waive privilege if holder “voluntarily discloses or consents to
disclosure”
• Of any “significant part” of the matter or communication
• Attorney-Client Waiver Specifically:
• Disclosure of communication by client or by attorney on clients behalf,
and must be voluntary.
• Exceptions:
• If the client attacks an attorney’s competence—usually be filing a
malpractice suit—then the attorney is permitted to disclose
communications in order to defend himself.
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•
Future crime-fraud exception: no privilege if the attorney’s
services were obtained to further a crime or a fraud.
• If the client intends to commit a crime or fraud when they
go to get advice, then the privilege will be waived.
• However, this exception only applies to future crimes—if
you have already murdered or committed a crime and
then need representation, you have privilege.
• FRE 502: Limitations on Waiver for Atty-Client Privilege and Work
Product
• General goal is to stop corporate lawyers from worrying
about disclosing entire boxes in litigation- from worrying
about waiving a privileged document.
• 502’s goal is to not have to worry about inadvertent
disclosures.
• Disclosures:
• In federal proceedings:
• involuntary disclosures will not waive
privilege for related undisclosed
communications (no subject matter waiver)
• Inadvertent disclosures will not waive
privilege for disclosed communications
• In state proceedings:
• Not waived in future federal proceeding if
would not be a waiver had it been disclosed
originally in federal proceeding OR is not a
waiver under state law
Standard 504: Doctor Patient Psychotherapist Privilege
• Patient holds the privilege
• Confidential communications
• For purposes of diagnosis OR treatment of mental or emotional condition
• Exceptions:
– Proceedings for hospitalization
– Examination by court order
– Condition an Element of Claim or Defense – will include claim for
emotional distress
• States vary, but Nebraska has this rule.
• Theory: Want patients to communicate w/ doctor to get accurate treatment.
• Privilege does not terminate upon the termination of the relationship.
Other Privileges:
• Standard 506: Communications to Clergymen
• Confidential communication
• To clergyman “in his professional character as spiritual advisor”
• Standard 507: Political vote
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•
•
•
Standard 508: Trade Secrets
Standard 509: Secrets of State and Other Official Information
Standard 510: Identity of Informer
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