I.
Overview of a Trial, Witness Competence, Relevance
A. Intro to the Rules:
Steps required to admit evidence
• Testimonial
o Asking a witness a series of questions
• Tangible
o Proposed exhibited marked for identification, referred to by number
o Submitted to opposing counsel and judge
o Authenticate object or writing
o Offered into evidence
• Demonstrative (ie sample weapon, model)
o Exhibits used to illustrate and explain testimony may be admissible if they are substantially accurate
representations of what witness is endeavoring to describe
FRE 1101--Application of rules
• FRE 1101(a): all federal courts before all federal judges
• FRE 1101(b): all types of cases, eg: civil, criminal, admiralty, maritime + most contempt proceedings
• FRE 1101©: privilege rules always apply, even when other evidence rules don't
o For quiz purposes:
• FRE 1101(d): rules (except for privilege) DO NOT apply-o Preliminary questions of fact (re admissibility)
• Eg FRE 104(a) hearings
• --> rules of evidence don't apply where judge needs the evidence to decide facts to even apply
the rule (ie where there is an objection)
• Like a mini trial to decide on the validity of the objection --> needs to evaluate evidence
to decide
o Grand jury proceedings
o Misc. proceedings
FRE 104: Preliminary Questions
a) in general, it is the role of the trial court judge alone to make the determination on preliminary questions
involving the admissibility of evidence (and whether a witness is qualified or a privilege exists)
• Only bound by rules of privilege
• But judge can also decide whether there is sufficient evidence to satisfy the condition or conditions of fact
on which the relevance of the conditionally relevant piece of evidence is based
• Final decision made by judge --> can't talk to jury about the facts
• preliminary questions --> Q's re:
o Qualification of a person to be a witness,
o Witness qualification (expert?)
o The existence of a privilege, or
o Privilege (valid marriage?) or
o The admissibility of evidence
o Evidence admissibility (speaker "excited"?)
o Note: preliminary hearings on the admissibility of confessions must always be conducted outside the
hearing of the jury
b) Re Conditional Relevance: but if have to determine credibility of the fact, then have to use the rational juror
standard --> goes to weight, not admissibility (qualifies 104(a))
Rule: 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.
•
STANDARD (for the judge): they need only determine that a reasonable jury/any reasonable juror could so
find by the preponderance of the evidence
o ALWAYS applies to conditional relevance
• The trial court must admit the evidence upon (or subject to) the introduction of evidence sufficient to
support a finding of the fulfillment of the condition
• Calls for the admission of conditionally relevant evidence so long as there is sufficient evidence for the jury
to find the conditions satisfied
o But order doesn't matter --> ie sufficient proof of the necessary predicate facts DOESN'T have to
be introduced into evidence BEFORE the judge may admit the conditionally relevant evidence
Note: motion in limine to admit evidence rarely granted
FRE 403: Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons
Rule: although relevant, evidence may be excluded if its probative value is SUBSTANTIALLY outweighed by a danger of
one or more of the following:
• Unfair prejudice
• Confusing the issues
• Misleading the jury
• Undue delay
• Wasting time
• Needlessly presenting cumulative evidence
o Cumulative evidence: information that proves what has previously been established by other
information concerning the same issue
• --> so: even though evidence having the slightest of probative value may satisfy the requirements of 401 and
402, it may still be subject to exclusion under 403
Note: Mere prejudice alone is insufficient to justify exclusion --> so Rule 403 concerns itself not with prejudice per se,
but with UNFAIR prejudice
FRE 105: Limiting Evidence that is not Admissible Against Other Parties of for Other purposes
Rule: if the court admits evidence that is admissible against a party or for a purpose--but not against another party or for
another purpose--the court, on timely request, must restrict the evidence to its proper scope and instruct the jury
accordingly
• Limiting instruction:
o Involves the judge telling jurors that they may use the evidence only for one purpose but not for
another, with the instruction sometimes being given at the time the evidence is introduced, sometimes
just as before the jury deliberates, and sometimes on both occasions
• Note: the judge should consider the probable effectiveness of a limiting instruction as an alternative to outright
exclusion under 403 when the basis is unfair prejudice
FRE 106: Remainder of or Related Writings or Recorded Statements—Rules of Completeness
Rule: If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction,
at that time, of any other part (or any other writing or recorded statement) that in fairness ought to be considered at
the same time
• For practical reasons, 106 encompasses only writings and recordings, and doesn't apply to testimony about oral
statements
o But some courts have extended it to oral statements
• Rule 106 applies not just to other portions of a writing or recording, but to related writings and recordings as
well
B. Witness examination:
FRE 611: Mode and Order of Examining Witnesses and Presenting Evidence
a) vests trial courts with broad discretion over the mode and order of examining witnesses and presenting
evidence
• Empowers trial courts to require that evidence be presented in some sort of chronological or topical
order, --> trial court has discretion to:
o To require that witnesses testify in a particular order,
o To decide whether and to what extent re-direct and re-cross examination of witnesses will be
permitted
o To allow a party to re-open their case when they have failed to introduce any evidence on a
particular element
o Permit witness to testify in narrative
o Let a party re-open its case or recall a witness
• --> court's exercise of authority under Rule 611 is virtually immune to appellate review -- even more
deferential than review of rule 403 rulings
b) Governs the appropriate scope of cross-exam
• General rule: cross-examination should be limited to the scope of the direct examination and matters
affecting the witness' credibility, but giving the trial court discretion to permit inquiry on cross-exam
that goes beyond the scope of direct exam
• Cross-exam should be limited to:
o Subject matter of the direct examination, and
o Matters affecting the credibility of the witness
• The court has discretion to permit inquiry into additional matters as if on direct examination
• Virtually nothing is "beyond the scope" of direct exam on the FIRST round of cross exam if it is relevant
c) Governs the use of leading questions
• Leading question: a question that suggests the answer
• General rule: leading questions are barred on direct exam but permitted on cross-exam
• With regard to direct exam--exceptions to the bar on leading questions: (when the rules permit a lawyer
to ask leading questions of their witness on direct exam)
o Allowed on undisputed preliminary matters
§ Ie witness' name, age, occupation, and residence
o Can be used where a party calls as a witness someone who is hostile toward that party, which
includes the opposing party themselves and those affiliated with that party, as well as someone
who is simply unwilling to be cooperative
o As necessary to develop the witness's testimony
§ Ie when the witness is very young, mentally incapacitated or timid
• Leading questions should not be used on direct examination except as may be necessary to develop the
witness' testimony
§ Don't want to lead even if allowed
Generally
4
exceptions:
•
o Hostile witness
o Child witness/adult with problems
o Forgetful witness
o Preliminary undisputed matters
• Ordinarily leading questions okay on cross-exam
o Except: "buddy" witness and beyond the scope
• When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, may
question be by leading questions or beyond the scope of direct
• Advisory committee note: a leading question can be used with a "witness whose recollection is
exhausted"
FRE 611(c) and 612 together: allow for (and regulate) refreshing a witness's memory
• About something they once knew
• The writing/refreshing thing is not the evidence, the TESTIMONY is the evidence --> so whatever's used (ie
writing) can't be read on the stand
FRE 612: Writing used to refresh a witness’s memory
Rule: allows the opposing party to introduce in evidence any portion that relates to the witness's testimony that is
understood to be for the limited purpose of impeaching the witness's credibility by showing that the witness just
parroted verbatim whatever was on the paper and that they were not in fact testifying from present memory
• BASICALLY: it doesn't create an exception to the hearsay rule that allows the writing to be admitted as
substantive proof of the matter asserted therein
• Riccardi: virtually anything can be used to refresh memory
o Rule:
a) gives an adverse party certain options when a witness uses a writing to refresh memory/recollection
• Assumes an ability to refresh a witness's memory, and provides rules that govern when a writing is used to
refresh a witness's memory
• Applies ONLY when a WRITING is used to refresh memory and ONLY to refresh memory (not put it in their
heads)
• Note that if a writing is used to refresh the witness's memory "while testifying," rule 612 gives opposing
counsel certain rights
o Includes: the right to have the writing produced, to inspect it, to question the witness about it, and
to introduce into evidence those portions which relate to the testimony of the witness
• What is the difference between writing being used WHILE testifying vs. a writing used to refresh memory
BEFORE testifying?
o 612(a)(1)--While testifying: adverse party is automatically entitled to see the writing (although some
say it is not automatic, just highly likely)
§ Other protections have to give way to fairness of allowing other documents into evidence to
allow jury to see it
§ Can see what it is and get it into the evidence for the trial to see
o 612(a)(2)--Before testifying: adverse party MAY be entitled to see the writing if the court finds that
the party's need to examine the writing outweighs the risks of requiring disclosure ("interests of
justice")
§ Testimony is more likely a genuine recollection, reducing the need for opposing counsel to
view the document to test its sufficiency for the purpose used
§ Subject to balancing test: factors to consider-(1) status of the witness—for example, fact, expert, or corporate representative;
(2) nature of the issue in dispute;
(3) when the events took place;
(4) when the documents were reviewed;
(5) the number of documents reviewed;
(6) whether the witness prepared the documents reviewed;
(7) the extent to which the documents contain “pure” attorney work product;
(8) whether the documents had been previously disclosed; and
(9) whether there are legitimate concerns regarding destruction of the documents.
§ Possible conflict with work-product doctrine (ie thought processes of the attorney)
§ Within the judge's discretion
o Takeaway:
§ While: automatic
§ Before: less certain that other party can see
Notes: Refreshing recollection--present recollection revived
• Can only be used when witness once knew, but doesn't remember now
• That used to refresh need not be admissible to evidence
• Can be anything (a song, a scent)
• The witness's testimony, not the writing, is the evidence
o Witness CANNOT read from writing while testifying
• Need foundation before refreshing--must show failure of memory
• Failure to refresh? Go to past recollection recorded
Rule 803(5) later
• Then the writing is the evidence
104(a) determination
o
•
FRE 602: Personal Knowledge Requirement
Rule: a witness's own testimony can suffice to establish that the witness has personal knowledge of the matters to
which they are testifying
• Witnesses must observe, or otherwise perceive the matter about which they are testifying
• Perceived through 5 senses
• (preview): issue of personal knowledge is question of conditional relevancy, subject to 104(b)
§ Evidence can = witness's own testimony
§ Threshold is LOW: no reasonable juror could believe….
• Witness must have personal knowledge of the fact they're testifying to
• Requirement of personal knowledge does not apply in certain circumstances --> ie:
§ Expert testimony
§ Hearsay: witness need not have personal knowledge of subject matter of statement, but may have
heard statement (that is the personal knowledge requirement)
• Admissions of party opponent
• Hearsay: as a general rule, a witness cannot testify about what some other person said, wrote, or otherwise
communicated --> but numerous exceptions
FRE 103: Rulings on evidence (evidence rulings on appeal)
a) A party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the
party and:
1) must preserve issue for appeal by objecting timely on specific ground
• Burdens on lawyers to object timely, and give specific evidentiary rule as basis of objection
• Helps opposing counsel to correct any errors in the offer of their evidence (ie asking additional questions
to lay further foundation)
• Avoids interminable/never-ending litigation
• Objecting timely: right after the offer of the evidence
o Ie with a question: after question but before witness answer
• NO objection = waiver (unless plain error)
• Appellate rules favor judge's trial evidentiary rulings
o Standards of review on appeal:
• De novo review: no deference to trial court, on purely issues of law
• Extraordinarily Deferential: recognition that trial judge was the one that was there, etc.
o Wrongly ADMITTED evidence: upheld unless opponent raised correct objection
• Ie defense offers document. P objects authentication. P cannot later argue on appeal
that it was inadmissible hearsay --> appeals court will only review for authentication
• Limited to the basis that you gave --> barred from raising anything else on appeal
o Wrongly EXCLUDED evidence: upheld if there is ANY support in record
• Ie judge sustains authentication objection, but was wrong. If the document was
inadmissible as hearsay, the appellate court will uphold the ruling
2) If judge excludes evidence proponent feels should be admitted, lawyer generally required to make an
offer of proof to preserve the point for later appellate review
• Offer of proof = demonstrate what would have been admitted
o Describe evidence; and
• Because of the standard of harmless error
o Identify specific grounds for admitting it
• Two purposes:
o Providing the proponent of the evidence the opportunity to persuade the judge not to exclude
the evidence
o Preserving the error on the record for appellate review
The requirements that the offer of proof be specific and timely are not explicit à but you still should
Failing to make offer of proof: waives the right to claim error in excluding evidence, absent plain error
The offer of proof must state a particular ground for admissibility, and only those grounds raised will be
preserved for appeal
• No specific rounds stated = no basis for appeal
• METHODS: all become part of record on appeal
o Examine the witness outside wence (Q and A)
o Oral statement by counsel as to what testimony would be
o Written statement by counsel describing witness's answers
o Written statement of testimony signed by witness
b) once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial,
a party need not renew an objection or offer of proof to preserve a claim of error for appeal
• But rule is loaded with traps, applying only when the ruling is definitive (can be debatable)
• ALWAYS RENEW YOUR CLAIM
c) Court’s statement about the ruling; directing an offer of proof
d) Plain Error Doctrine: preventing the jury from hearing inadmissible evidence
• Plain error refers to the kind of error that is so obvious and substantial that failing to correct it would affect
the fairness, integrity, or public reputation of a judicial proceeding
• Must be extremely serious–In other words, the defendant in a criminal case probably would have been
acquitted but for the error
• Will rarely if ever apply in civil cases
• Vs. Harmless Error Doctrine: Non-constitutional errors–Error is harmless if it is more probable than not (or
“highly probable”)that the error did not affect the outcome
Notes:
• Cumulative evidence doctrine–while the trial judge erred in admitting (or excluding) evidence offered against (or
by) the appellant, so much other proof was properly received on the same point that the jury would likely (or
not likely) have found against (or for) her even if the judge had correctly excluded the evidence
• If evidence was ONLY or PRIMARY = prejudicial
• Constitutional errors in criminal cases–Harmless if court finds beyond a reasonable doubt that error did not
affect outcome
•
•
•
C. Relevance
FRE 401: Defining Relevance
Rule: contains two separate requirements. BOTH must be satisfied for evidence to be deemed relevant. Evidence is
relevant if—
a) Probative worth prong: it has any tendency to make a fact more or less probable than it would be without the
evidence; and
• evidence relevant only if it tends to prove or disprove the point for which it is offered --> any tendency to
make a fact more or less probable than without the evidence
§ Need only have some tendency, however slight, to support the party's claim with respect to that
element
§ Probable as only relative to the judge
§ SUPER EASY to satisfy
b) Materiality requirement: re that the fact must be "of consequence in determining the action"
• Evidence is material only if it is offered to prove or disprove (aka there is a connect to) an element of a
legally cognizable claim, offense, or defense that has been raised in the parties' pleadings
• But connection doesn't need to be direct --> evidence is material if it is logically related, either directly or
through a chain of inferences, to an element of a claim, offense or defense
• Respects state law
• How the judge decides: Looks at 4 corners of the pleading
Note: how does the judge determine if something is relevant? à looks at the FOUR CORNERS of the pleading and then
test the TWO prongs
•
•
failure to satisfy either prong is fatal to a claim of relevancy
But even if you have both, it may only be presumptively admissible
FRE 402: The Gateway to Admissibility – General Admissibility of Relevant Evidence
Rule: irrelevant evidence is not admissible PERIODT à but not all relevant evidence is admissible
• Relevant evidence is admissible unless any of the following provides otherwise:
§ Constitution
§ Fed statute
§ FRE
§ Other rules prescribed by the SC
§ --> irrelevant evidence not admissible
• 402 contains two rules: an absolute rule and a rebuttable presumption
§ Absolute rule: information that does not matter is not admissible
• No exceptions: if some piece of information doesn't matter, it can't be admitted into evidence
and thus cannot be presented to the trier of fact
§ Rebuttable presumption: information that matters is admissible, unless there is some other reason to
exclude it
• Proviso allowing for the exclusion of such evidence when another rule of evidence provides
otherwise sets apart 402
Note: 402 as an initial gateway on a road to admissibility through which every piece of evidence must pass before
making its way to the trier of fact
D. Witness Competency
FRE 601: Witness Competency – deferential to state law
Rule: every person is competent to be a witness unless rules provide otherwise. But in civil cases in which state law
supplies the rule of decision, state competency law governs (ie diversity cases).
• Even if a witness is screened for competence under state law per 601,
• Witness is still subject to federal standard for witness qualification/reliability
• SO: not all persons competent to testify
FRE 605: Judge’s Competency as a Witness
Rule: presiding judge incompetent to be witness
FRE 606: Juror’s Competency as a Witness
Rule: jurors incompetent to be witnesses in the case or regarding most matters related to deliberations
a) at the trial: a juror may not testify as a witness before the others jurors at the trial
b) during an inquiry into the validity of a verdict or indictment
§ Rule: juror testimony cannot be used to impeach a jury verdict
§ Exceptions: when a juror CAN become a witness and give testimony after a verdict is rendered
• Extraneous prejudicial information was improperly brought to the jury’s attention
• External influence
• Ie: bribe, juror reading newspaper coverage, background research
• Internal influence—DOESN’T COUNT: ie misunderstanding jury instruction, physical or
mental incompetence, drunken jurors, propensity inferences
Mistake
in entering verdict onto the verdict form
•
• Not about misunderstanding jury instruction
• Ie verdict was innocent, juror was tired, juror accidentally scribbles down guilty
Note: Why does Rule 606(b) limiting jury testimony not violate the 6th amendment?
• Because rule only limits the FORM of evidence (Tanner and Pena-Rodriguez).
o Limits type of evidence party can use
• Still can use:
o
o
o
o
II.
Court personnel
Other non-juror witnesses
Juror testimony BEFORE the verdict
Voir dire: process used by the parties to select a fair and impartial jury
• Also the preliminary questioning of witnesses (especially experts) to determine their
competence to testify
The Rule Against Hearsay
Hearsay: a statement (an ASSERTION), NOT made by the declarant while testifying at the current trial or hearing, offered
in evidence to prove the truth of the matter (fact) asserted in the statement
• ALL hearsay exceptions require personal knowledge!!
• Standard for exceptions: by a PREPONDERANCE
• 104(a) determination
5 Common Categories of non-hearsay uses of statements (used for other purposes):
• Impeachment
o Ie testified red light, but told X yesterday that it was green light --> offering their out of court statement
• Effect on hearer or reader
o Ie assumption of risk --> hearer was on notice of the danger
o Ie "I told her weeks ago to get those brakes fixed"
• Verbal acts: legal/logical import
o If significance of offered statement lies solely in fact that it was made
o Ie slander
• State of mind
o Offered to prove or explain acts or conduct of the defendant
o Ie "I'm the president"
o Direct: establishes a fact
o Circumstantial: offered to prove the declarant’s sate of mind at that time or at any other time when it is
itself an issue
§ Requires that judge/jury make an indirect judgement or inference about what happened
• Verbal objects
o Ie bumper sticker, (reading off a) license plate, ie US v. Snow (pg. 469)
o Words written on an object are not hearsay when offered to identify the object --> need other evidence
to make it circumstantially relevant
Notes:
• If you CAN'T find a NON-truth reason for wanting to get the OOCS (the facts) into evidence, then you ARE
putting it in to prove the truth of those facts --> because you NEED them to be true and that's your proof
• An OOCS can have BOTH a truth and a non-truth probative value!! à 105 limiting instruction
FRE 801: Hearsay Definitions
a) Statement: a person's oral assertion, written assertion, OR nonverbal conduct, if the person intended it as an
assertion
• THERE HAS TO BE INTENT TO COMMUNICATE/ASSERT
• Burden on party claiming intention existed
b) Declarant: the person who made the statement
• HAS to be a human
• But evidence itself can be hearsay
o Ie a certificate that a dude won best hooper to prove that dude is good at hooping
o Ie death certificate to prove dude is dead
c) Hearsay is a statement that the declarant does not make while testifying at the current trial or hearing
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;
§ can be both for impeachment AND truth of facts
b. is consistent with the declarant’s testimony and is offered: (consistent + some trigger)
i. 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
1. re the declarant’s improper motive
ii. to rehabilitate the declarant’s credibility as a witness when attacked on another ground;
iii. à The Statement was made prior to time that alleged motive to falsify arose
c. identifies a person as someone the declarant perceived earlier. à statement of identification
i. à identification was made after perceiving the person
o COMMON REQUIREMENT: the declarant testifies and is subject to cross-exam about a prior
statement
• They HAVE to testify and HAVE to be subject to cross-exam!!!
• Any time they're dead or whatever and just aren't there --> can't access these 3
§ INCLUDING even if they're there but pulling the privilege card
2) Statements of an Opposing Party: defines as "not hearsay" 5 different categories of statements made by
a party or by certain people associated with a party when offered into evidence against that party
o Opposing party declarant doesn’t need personal knowledge of the facts in the out of court
statement
a. Individual (express)--was made by the party in an individual or representative capacity;
b. adoptive admissions (adopt/endorse/agree)--is one the party manifested that it adopted or
believed to be true;
i. express: no express intent to communicate facts, but circumstantially, you own it
1. Jury will hear BOTH the full statement (with 105 instruction) so they know what
was agreed to and the shore agreement
2. Comes in for the TRUTH (substantive evidence)
ii. silence: can adopt another’s statement through silence à must have 3 things:
1. heard it
2. understood it
3. had an opportunity to deny it
iii. possess written statement + “plus”
c. Authorized ("speaking agent")--was made by a person whom the party authorized to make a
statement on the subject;
i. The person speaking is expressly or impliedly authorized to speak à so basically
becomes you speaking
ii. Express
1. Ie you tell your kid to go tell the neighbor's dog to stfu --> you authorized your
kid to go tell the dog
2. Ie note-take for company authorized to note take for CEO --> becomes CEO's
notes/statements
iii. Implied: relationship implies speaking authority
iv. Usually, authority limited to certain subjects
v. Comes in for TRUTH (ie independent legal significance)
vi. Covers in-house (internal) statements: re corps
d. Agents & employees --was made by the party’s agent or employee on a matter within the scope
of that relationship and while it existed; or à elements:
i. Relationship: party's agent/employee;
ii. Timing: during existence of the agency/employment relationship; and (they speak
about--(to other employees usually))
iii. Content: matter within scope of agency/employment--relates to the declarant's duties
e. Co-conspirators--was made by the party’s coconspirator during and in furtherance of the
conspiracy. (104(a)) determination
i. Elements:
1. Conspiracy existed
2. Statement was made during the conspiracy
a. Only when withdrawn from the conspiracy, will the subsequent
statements made by former coconspirators not be admissible against
them
i. Statements made AFTER withdrawal can’t be used against them
ii. But statements made during or even BEFORE joining can
3. Statement made in furtherance of the conspiracy
a. "in furtherance of" requirement satisfied so long as the statement was
made with the apparent intent to promote the objectives of the
conspiracy:
ii. Conspiracy charge not a necessary prereq so long as there existed a conspiracy of which
the declarant and D were members
FRE 802: The Rule Against Hearsay
Rule: hearsay is not admissible unless a rule of evidence or other federal rule or statute provides otherwise
FRE 805: Hearsay within Hearsay
Rule: hearsay within hearsay is admissible if all hearsay within the statement is covered by an exception
• BUT EACH LAYER OF HEARSAY MUST BE DEALT WITH
o If one layer does not meet a hearsay exception, then the statement is inadmissible
A. Unrestricted Hearsay Exceptions
General Rule: can be invoked without regard to whether or not the declarant is available to testify as a witness
FRE 803: Hearsay Exceptions—Unrestricted
1) Present Sense Impression: a statement describing or explaining an event or condition, made while or
immediately after the declarant perceived it
a. Time limit: slight lapse allowable (23 minutes in case law)
b. No special mental state
c. Subject matter: permissible subject matter of the statement is limited to description or explanation of
the event or condition
d. Event or condition need not be startling
e. Doesn’t require corroboration that the events described in the statement occurred (no evidence to
confirm or support)
2) Excited utterances: a statement relating to a startling event or condition, made while the declarant was under
the stress of excitement that is caused
a. Difference from (1): requires a startling event or condition
b. No time limit
c. Mental state: declarant must be under the stress of excitement --> but no answers as to how long the
period of excitement lasts
d. Subject matter: the statement need only relate to the startling event or condition --> affords a broader
scope of subject matter coverage
e. Requires startling event or condition
f. Doesn’t require corroboration that the events described in the statement occurred (no evidence to
confirm or support)
3) Then-Existing Mental, Emotional or Physical Condition: provides an exception for 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
a. Covers:
i. Plans (thought processes): relevant to prove that person went forward with it
ii. Physical feelings
iii. Mental feelings: Fact that statement was made is non-truth circumstantial evidence of the
declarant's state of mind, without regard to truth of the statement
1. Statement cannot be offered to prove the truth of the matter asserted
iv. But NOT MEMORY OR BELIEF: would make hearsay rule messy (except wills)
b. Note:
i. Exception covers a statement by a declarant referring to physical pain or feelings that the
person is experiencing when making the statement,
ii. But not statements by a declarant in which they describe past physical pain or feelings
c. I.e. "I'm going to tell him tonight that I'm divorcing him"
i. Hearsay BUT then-existing intent to do something in the future (plan)
4) Statements made for medical diagnosis or treatment: creates an exception for a statement that—
a. is made for--and is reasonably pertinent to--medical diagnosis or treatment; and
b. describes medical history; past or present symptoms or sensations; their inception; or their general
cause
c. General rule: blame-casting statements are not admissible under the exception
i. UNLESS we need to know who it was to be able to treat you --> to extent necessary for medical
diagnosis and treatment
d. Exception also covers statements made solely for diagnosis
e. The statement need not be made to a physician to fall within the rule, for it requires only that the
statement be made for medical diagnosis or treatment --> covers statements made to those who
serve as intermediaries between patient and physician
f. Exception is one-sided: language only covers statements made FROM the patient (directly or via
intermediaries) TO the physician --> not the other way around
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 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 witnesses knowledge
If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an
adverse party.
d. the writing MUST be read into evidence, because it's the contents of the writing--not the witness's
memory--that is being offered into evidence
i. substitute for the declarant's words while on the stand
e. Requires the declarant to actually appear as a witness in court and first attempt to testify from firsthand knowledge of the events recorded in the record
i. Only if they are unable to recall those events sufficiently to testify fully and accurately can the
record be offered into evidence as a substitute for their testimony
ii. (unlike 803(1-4))
f. a writing can be admitted only if the declarant testifies to a loss of memory concerning the incident
g. 104(a) issue for judge: all facts decided by judge under 104(a)
h. allows witnesses to testify to the accuracy of a recording or documentation of their own out-of-court
statement based on their recollection of the circumstances under which the statement was recorded or
documented - even though the witness does not remember the events attested to in the statement
i.
Elements:
1. A record (writing, audio recording): can be anything
a. Can be made by one or multiple people
i.
If multiple people: ALL have to come to court, ALL have to take the stand/testify
1. A recorded recollection compiled through multiple witnesses (a joint effort)
is admissible under the rule, where each participant in the chain testifies at
trial as to the accuracy of their piece of the chain
b. Document can only be READ into evidence--document itself is not an exhibit
2. Witness had prior personal knowledge
3. Witness has insufficient recall
4. Made or adopted by the witness
5. When matter was "fresh" in witness's memory, and
a. Fresh NOT a time issue; court looks at lots of factors included how detailed and habit of
creating (can be days or months later)
6. Accurate when made
6) Business Records Exception—Records of a Regularly Conducted Activity: A record of an act, event, condition,
opinion, or diagnosis if—
a. Elements:
i. A record of an act, event, condition, opinion, or diagnosis
ii. Made at or near the time (like "fresh")
iii. By or from information from a person with knowledge
iv. Created in regular course of business activity and
v. Retained in regular course as a matter of regular practice
1. AND made
2. Must be retained f
vi. Opponent doesn't show it to be untrustworthy
1. Once the proponent satisfies requirements for admission, burden is on opponent to
establish untrustworthiness
b. Insiders, outsiders & double hearsay
i. "outsider" statements contained in business records are not admissible
1. We trust "insiders" because they were trained to make these records
2. Not admissible under 803(6) but maybe under another hearsay exception
ii. Vigneau: if independent evidence that it was Vigneau, then statement of opposing party and
non hearsay
c. Foundation:
i. Records custodian does not need to testify; for authentication the records can be certified under
FRE 902(11)-(12)
ii. Certification requires advance NOTICE
iii. Parties can stipulate
iv. If the source of information or the method or circumstances of preparation indicate lack of
trustworthiness business records can be excluded under 803(6)
v. Some accident reports ok if made per statutory duty
d. NOT a business record if a record prepared for litigation
7) Absence of a record of a regularly conducted activity. Evidence that a matter is not included in a record
described in (6) if:
a. The evidence is admitted to prove that the matter did not occur or exist
b. A record was regularly kept for a matter of that kind
c. The opponent does not show that the possible source of the information or 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 law-enforcement personnel; or
iii. in a civil case or against the government in a criminal case, factual findings from a legally
authorized investigation; and
b. the opponent does not show that the source of information or other circumstances indicate a lack of
trustworthiness.
c. Notes:
i. ie prosecution would NOT be able to admit ie a police report as a business record under (6) if
not admissible as a public record
ii. testimony as to the absence of a public record is admissible
B. Restricted Hearsay Exceptions
Rule 804--restricted hearsay exceptions: exceptions that can be invoked only if the proponent first makes a showing that
the declarant is unavailable as a witness
• CAN’T use any of these UNLESS you first establish unavailability
• Not as solid and strong and reliable as 803 scenarios --> but better than no evidence at all
• FOCUS ON THE UNAVAILABILITY OF THE TESTIMONY, NOT the human body --> they can be physically there, but
if they refuse to answer the question
a) A declarant is considered to be unavailable as a witness if the declarant:
1) Privilege: requires that an actual claim be made and that the court sustains the claim
2) Refusal to testify: requires declarant to take the stand and refuse to testify despite the threat of
contempt or other judicial pressure
a. Refusal to testify can establish unavailability
3) Lack of memory: requires declarant to take the stand, and requires proponent to make good-faith
effort to get witness to testify (including refreshing memory)
a. For this rule to apply, it is irrelevant whether or not the declarant remembers making the
very hearsay statement whose admissibility is at issue --> what matters is that they lack a
memory of the underlying events themselves
b. Applies only if the declarant is unable to remember the subject matter
4) Death/infirmity: need not be a permanent infirmity (as short as one or two weeks)
5) Cannot procure: must take reasonable steps to procure declarant’s attendance (& sometimes
testimony by deposition), including a request to appear voluntarily
[Exclusion--procurement or wrongdoing] 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.
• Forfeiture by misconduct: Under rule 804(a), a party who engaged in wrongful conduct forfeits their
right to invoke the 804 hearsay exceptions to admit statements made by the unavailable declarant
• Wrongfully keeping a witness from coming to court and testifying
o The bad actor who does this WITH THE INTENT to silence the witness, has lost any right to
complain when objecting to hearsay from that particular witness
o Court has to find that the party INTENTIONALLY silenced the witness by preponderance of the
evidence
• !!! Party invoking privilege against self-incrimination have taken action to keep their own live testimony
out of court --> so now they can't object to the other party offering their OOCS
o Forfeit right to object to missing witness's statements if YOU MADE THEM MISSING TO SILENCE
THEM
b) Exceptions: for unavailable witnesses
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.
• Elements:
o Declarant unavailable
o Testimony in trial, hearing, deposition
o Other party had
§ Opportunity to develop testimony and
§ Similar (or greater) motive to develop that testimony
• Questioner must have substantially similar (or higher) interest in
prevailing in both proceedings
• If stakes are too different, motive might not be sufficiently similar
• Predecessor in interest: In a civil case ONLY Rule 804(b)(1) can be invoked if a party’s
“predecessor in interest” had an opportunity and similar motive to develop the testimony in an
earlier proceeding
• Criminal cases: don’t require opportunity to cross declarant at the current trial
• If civil suit AFTER criminal prosecution?
• Testimony should be admissible as former testimony
• If the civil case precedes the criminal case?
• Testimony is inadmissible
2) Dying declarations: in a prosecution for HOMICIDE OR CIVIL CASE, a statement that the declarant,
while believing the declarant's death to be imminent, made about its cause or circumstances
o THEY DON”T ACTUALLY HAVE TO DIE
o Elements:
• Type of cases in which the exception can be invoked: homicide or civil case
• State of mind of the declarant: belief that their death was imminent
• Subject matter of statements covered by the exception: "cause or circumstances" of
what the declarant believed to be their imminent death
• Personal knowledge of the declarant
o doesn't have to be definitive proof, just enough circumstantial evidence
3) Statements against interest: a statement that—
(A) a reasonable person in the declarant’s position would have made only if the person believed it
to be true because, when made, it was so contrary to the declarant’s proprietary or pecuniary
interest or had so great a tendency to invalidate the declarant’s claim against someone else or to
expose the declarant to civil or criminal liability; and
• An objective standard (odd)
(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.
Note: doesn’t include statements that would expose to public ridicule and social disgrace
6) Counterpart to the forfeiture by misconduct proviso: Creates an open-ended hearsay exception that
permits an unavailable declarant's statements to be offered against a party if the party "wrongfully
caused” unavailability
• In effect, by engaging in such wrongdoing, a party forfeits the right to object on hearsay
grounds to the admission of the absent declarant's statements
Rule 807: The Residual Exception—an open-ended exception to the hearsay rule
a) In General. Under the following conditions, a hearsay statement is not excluded by the rule against hearsay
even if the statement is not admissible under a hearsay exception in Rule 803 or 804:
1. the statement has equivalent circumstantial guarantees of trustworthiness;
2. it is offered as evidence of a material fact;
3. it is more probative on the point for which it is offered than any other evidence that the proponent can
obtain through reasonable efforts; and
4. admitting it will best serve the purposes of these rules and the interests of justice
b) Notice. The statement is admissible only if the proponent gives an adverse party reasonable notice of the
intent to offer the statement
To invoke the rule, a party must demonstrate that the proffered evidence is reliable and necessary.
III.
The Confrontation Clause
Confrontation Clause of the 6A: in all CRIMINAL prosecutions, the accused shall enjoy the right to be confronted with
the witnesses against them
o The right to confront is understood to provide criminal defendants with a right to cross-examine, before the trier
of fact, witnesses against them
o A procedural guarantee
ANALYSIS: the use of an OOCS (even if it falls under a vliad hearsay exception or testimonial privilege) VIOLATES the CC
if—
1. The proceeding is a criminal action
2. The declarant is unavailable
3. The defendant did NOT have an opportunity to cross-exam
4. The statement is testimonial
a. Statements to police:
i. Testimonial: A statement made to police whose primary purpose is to collect evidence to be
used in a future criminal prosecution
ii. NOT testimonial: a statement made to police whose primary purpose is to provide
assistance in an ONGOING emergency (but see Bryant factors below)
CC and Hearsay: if the statement was testimonial (ie factual and either accusatory or important in making out the case
against the accused), then the CC prevents its use against a D UNLESS the D has an opportunity at trial or in another
context to cross-exam
o Testimonial Statement: statements that the declarant would reasonably expect to be used by the prosecution
o Requires that a defendant be able to cross-examine witnesses regarding out of court statements introduced to
prove the truth of the matter asserted
o The fact that a statement falls into a traditional hearsay exception does not make it admissible --> must also
prove unavailability and prior cross exam for testimonial statement to be admissible
o MUST be offered for the truth!!
o If NOT offered for the truth, NOT testimonial, admission at trial does not violate CC
o NOTE: only the witness needs to be there for cross exam, not the declarant ie in a hearsay
o Hearsay Exceptions meeting the test:
o Former testimony
o Dying Declarations
Crawford v. WA:
RULE: Testimonial statements of witnesses not present at trial are admissible only where the declarant is unavailable
and the defendant had a prior opportunity for cross examination.
Holding:
o
o
o
o
o
Although the Confrontation Clause on its face negates almost every hearsay exception, hearsay may still be
admissible under the clause if the declarant is unavailable and the defendant had a prior opportunity for cross
examination
Required for admissibility of hearsay statements:
o Testimonial
o Unavailability
o Prior opportunity for cross-exam
What is testimonial?
o Ex-parte in-court testimony (at a prelim hearing before a grand jury or at a former trial)
o Formal written testimonial statements (ie affidavits)
o Prior testimony
o Statements taken by cops during interrogations
Non-testimonial: where circumstances make them non-testimonial
o Business records
o Co-conspirator admissions
o BUT: must examine the circumstances under which the statement was made
Admissible under Crawford:
o Prior witness statements
o Former testimony
o Dying declarations
o Forfeiture by wrongdoing
o Past recollection recorded
o Not offered for the truth of facts stated
o Non-testimonial hearsay
§ Business records
§ Co-conspirators
Michigan v. Bryant (2011): expanding what ongoing emergency means
• After crawford, courts understood there was a dichotomy:
§ If primary purpose of police interrogation was to enable police assistance/ongoing emergency:
• Statements were nontestimonial
§ If, during police interrogation, no ongoing emergency, THEN primary purpose was to establish/prove
past events for criminal prosecution & statements
• Testimonial
• After Bryant: no such clean dichotomy
§ There may be other circumstances, aside from ongoing emergencies, when a statement is not procured
with a primary purpose of creating and out of court substitute for trial testimony
• Objective evaluation: primary purpose is determined by looking at both declarant and interrogator
§ Consider statements of BOTH declarant AND questioner
• Where no such primary purpose exists, admissibility governed by evidence rules, not the CC
• Allows judges to assess totality of circumstances bearing on reliability à reliability as factor in determining
testimonial v. non-testimonial
Ohio v. Clark (2015):
• Testimonial statements: made to law enforcement when there is no emergency and for the primary purpose of
using the information obtained
• Non-testimonial statements: made to law enforcement for the purposes of helping during an emergency
§ Or made to non law enforcement
IV.
Character Evidence
Rule 404:
a) Character Evidence: Generally--rule bars the prosecution from introducing evidence of D's character for the
purpose of showing action in conformity therewith
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.
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.
i. Normally prosecution can't initiate, only rebuttal --> BUT if it's a homicide case, there must be
evidence/FACTS that victim was the aggressor, if so then-2. Can now initiate use of character evidence to rebut that victim was the aggressor ie
peacefulness
ii. in some instances, D can, without even introducing character evidence, open the door to the
prosecution's use of character evidence
3. Exceptions for a Witness. Evidence of a witness’s character may be admitted under Rules 607, 608,
and 609.
4. Note: can be offered in civil cases concerning sex/molestation cases
b) Other Crimes, wrongs, or Acts
Generally: evidence of other crimes, wrongs, or acts is barred ONLY if its relevancy is based on drawing an
inference from the other conduct to a propensity to engage in the conduct to a conclusion that the D engaged in
the conduct on the occasion at issue
§ Acts permitted in CIVIL cases if NOT for propensity
§ Even conduct for which D was acquitted
§ "other" does not mean prior
§ "other" conduct need not be unlawful or criminal
§ although it's prosecution that usually offers other acts, it can be the D
1. Re ACTS for propensity: 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. BUT when such evidence is offered for other purposes, it's not barred by this rule
3. Prosecutor must provide notice in a criminal case when requested à not required
Notes:
• Character evidence: a generalized description of one's disposition, or of one's disposition in respect to a general
trait
o Ie honesty, temperance (re alcohol use), or peacefulness
• General bar of rule 404 + 3 exceptions in 404(a)(2) give criminal defendants control over whether either
evidence of their own character traits or those of the alleged victim can be offered by either side for the purpose
of showing action in conformity therewith
o But once D opens these doors, these same exceptions give the prosecution the ability to introduce
character evidence to rebut that offered by D
o Prosecution can get up on cross-exam and use it against you
o Note: law-abidingness ALWAYs pertinent
• 4 safeguards protect against unduly prejudicial 404(b) evidence: Rules 105 & 403 ALWAYS considered
o 402: Must be relevant
o 104(b): has to be enough evidence presented to the court by conditional relevance --> one rational juror
must be able to find
o 403: judge can still say it's too much
TAKEAWAY:
• Character evidence BARRED if offered to prove conformity/propensity (forbidden purpose)
• If NOT offered for FORBIDDEN PURPOSE of propensity, then not barred, BUT:
o Usually triggers a limiting instruction
o Exclusion may still be called for by rule 403
• Prosecution can sometimes initiate
Rule 405: Methods of Proving Character—sets forth the permissible means of proving character by reference to specific
instances of conduct in two situations:
a) By Reputation or Opinion (direct evidence): When evidence of a person’s character or character trait is
admissible, it may be proved by testimony about the person’s reputation or by testimony in the form of an
opinion. On cross-examination of the character witness, the court may allow an inquiry into relevant specific
instances of the person’s conduct.
§ NO indirect evidence of character (unless on cross)
§ Requirement--Qualification: Witness has to be familiar with the defendant/community AT THE TIME of
the incident that is subject of the trial (ie robbery)
b) By Specific Instances of Conduct (indirect evidence): When a person’s character or character trait is an essential
element of a charge, claim, or defense, the character or trait may also be proved by relevant specific instances
of the person’s conduct (ACTS).
§ Both civil and criminal
§ Acts only ok if element of the charge
§ indirect evidence of character OK
§ Must give notice if using acts on cross
§ 104(b)
Rule 406: Evidence of Habit
• Rule: evidence of an individual's habit or an organization's routine practice is potentially admissible to prove
action in conformity therewith (subject to exclusion under 403)
o Ie honesty, temperance (re alcohol use), or peacefulness
• Habit evidence: both lay and psychological, more specific
o Describes one's regular reponse to a repeated specific situation
o Key factors in determining whether behavior rises to the status of habit: adequacy of sampling and
uniformity of response
• Provides for the admission of evidence of habit or routine practice regardless of whether it is corroborated or
whether there was an eyewitness
• Corroboration not needed (cf, common law)
• Admissible even if there's an eyewitness (cf, CL)
• Form is unregulated (opinion or specific acts? Discretion of court)
Burden of Proof
• Huddleston: 404(b) is an issue of conditional relevance under 104(b)
o Standard: Can any reasonable juror find 2 things by the preponderance of the evidence-• ACT occurred and
• Party/Defendant did it
• Quantum = preponderance of the evidence (even in criminal cases)
• Order of proof in court discretion (can admit subject to connecting it up later)
Rules 412-415: specific instances of conduct OK!! à otherwise only ok if:
• On cross of character witness
•
•
•
•
For 404(b) NON-propensity purpose
For rules 412-415
Habit
If character is an element of claim/defense
Rule 412: character evidence in sexual assault and child molestation cases
Generally: with regard to evidence about the victim, bars any evidence offered to prove their sexual predisposition or to
prove that they engaged in other sexual behavior (but there are exceptions)
a) Following evidence is not admissible in a civil or criminal proceeding involving alleged sexual misconduct:
1) Evidence offered to prove that a victim engage in other sexual behavior or (ACTS)
2) Evidence offered to prove a victim’s sexual predisposition (CHARACTER)
b) Exceptions:
1) Criminal cases: the court may admit the following in a criminal case—
A. Evidence of specific instances of a victim’s sexual behavior, if offered to prove that someone other
than the D was the source of semen, injury, or other physical evidence
• Applies only if the prosecution has introduced into evidence the existence of injuries or
semen
B. exception for evidence of specific instances of a victim's sexual behavior with respect to the person
accused of the sexual misconduct, if offered by the D to prove consent or if offered by the
prosecutor
C. exception for evidence whose exclusion would violate the D's constitutional rights
2) Civil Cases: 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
o Reverse 403
o Burden is on the proponent of the evidence
o Puts harm to the victim on the scale, weighed with prejudice to ONLY the parties
o When applicable: allows only for evidence in the form of specific instances of conduct
c) Requires that a party seeking of offer evidence under one of the exceptions in 412(b) must generally file a
written motion at least 14 days before trial
1) Motion (in camera hearing for privacy)
2) 14 days pre-trial
3) Notice requirement (and notice to VICTIM)
Notes:
• Even if evidence fits within an exception to 412, it may nonetheless be subject to exclusion under other rules,
including 401 and 403
• Sexual misconduct need not be alleged in the pleadings
§ So sex crime need not be charged
• Ie kidnap charged, but sexual assault offered as motive/background for kidnap
• Must have victim of alleged sexual conduct
§ So doesn't extend to defamation cases
• CANNOT violate D's rights
• KINDS OF EVIDENCE ALLOWED/NOT:
§ Form: specific instances of conduct (ACTS)
§ Reputation/opinion NOT allowed (unless constitutionally required)
§ Opposite of rule 405
§ BUT no mandated form if constitutionally required (any form ok)
Rules 413-415 effectively amends rule 404:
• P can put on evidence of D's conduct for ANY relevant reason in SA and CM cases (criminal or civil)
o Propensity ok!!
• Rationale:
o Propensity is particularly probative (sex offense)
HIGH NEED for the evidence
• Usually NOT ever a reason for an evidence rule
Note: in a criminal case, both D and P can a use of character evidence to prove that on a particular occasion a
person acted in accordance with the character
o
•
V.
Authentication
Evidence authentication/identification: a fundamental prereq to the admission of all forms of physical evidence
o Including writings, recordings, photographs and objects
o And for some forms of testimonial evidence
o Rules greet every piece of evidence with a skeptical eye
o 104(b) determination
o If evidence is:
o Unique
o Readily identifiable
o Resistant to change
o à authenticate by calling witness who saw it before and have witness testify that they recognize it as the
item that was seized from D (901(b)(1))
o DON’T NEED CHAIN OF CUSTODY
Chain of custody: fungible evidence
o If evidence is not readily identifiable or if it is susceptible to alteration, then need to introduce evidence of the
chain of custody (or testimonial tracing) of the evidence
o Presumption of regularity
o TAKEAWAY: you don't need EVERY single person (ie every cop who handled the document)
o But if you're prosecutor, you want them
o If defense, you might, but prob not
Rule 901: Authenticating or Identifying Evidence
a) 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
• Rule just assumes the existence of requirement à relevance rule is actually the source
b) 10 specific methods of authenticating evidence (but not limited to these)
1) Testimony of a witness with knowledge: testimony that an item is what it is claimed to be
• Pictorial testimony: a witness who has personal knowledge of the scene depicted testifies that
the photograph fairly and accurately portrays the scene
2) Nonexpert opinion about handwriting: a nonexpert’s opinion that handwriting is genuine, based on a
familiarity with it that was not acquired for the current litigation
3) Comparison by an expert witness or the trier of fact: a comparison with an authenticated specimen by
an expert or the trier of fact
4) Distinctive characteristics and the like: the appearance, contents, substance, internal patterns, or other
distinctive characteristics of the item, taken together with all the circumstances.
5) Opinion about a voice: an opinion identifying a person’s voice—whether heard firsthand or through
mechanical or electronic transmission or recording—based on hearing the voice at any time under
circumstances that connect it with the alleged speaker.
6) Evidence about a telephone conversation: evidence that a call was made to the number assigned at the
time to—
A. A particular person, if circumstances, including self-identification, show that the person
answering was the one called; or
B. A particular business, if the call was made to a business and the call related to business
reasonably transacted over the phone.
• Self- identification by making the call (incoming calls): insufficient
§ Need self-id PLUS something more
• Ie caller id
Self- identification by receiving the call (outgoing calls): sufficient to authenticate the identity of
the recipient
Evidence about public records: evidence that—
A. A document was recorded or filed in a public office as authorized by law; or
B. A purported public record or statement is from the office where items of this kind are kept.
Evidence about ancient documents or data compilations: evidence that it—
A. Is in a condition that creates no suspicion about its authenticity
B. Was in a place where, if authentic, it would likely be; and
C. Is at least 20 years old when offered
Evidence about a process or system: evidence describing a process or system and showing that it
produces an accurate result
• Silent-witness model: the witness testifies to the reliability of the process by which the
photograph was made
Methods provided by a statute or rule: prescribed by fed statute or SC
•
7)
8)
9)
10)
Ways to authenticate handwritten notes:
• Lay witness personal knowledge of handwriting
o Has to have been acquired NOT for purposes of litigation
o Can be acquired during an investigation
• Distinguishing: Personal knowledge of the content of the note
o Uniquely known
o If there's near unique content, or small universe of people who know the information
• Appearance of the note
o Ie note has a tear, dude's notebook has remnants of a tear
• Special language
• EYEWITNESS: someone saw them write the note
• Unique aspects: distinctive characteristics
o Patterns in writing
• --> doesn't have to establish CONCLUSIVELY, just by the preponderance
• Need to establish two things:
o Content is as accurate now (as when written) when it's being admitted to the court
o Author
With communications (oral, written, recorded) --> need to authenticate BOTH:
• Content
• Identity/author
• --> who was the communicator?
Photos/recordings:
• Can be authenticated without a witness who has first-hand knowledge of the events depicted in the photo
• Witness with personal knowledge (ie familiar with the scene)
• Silent witness model
• Content + circumstances
• Usually, no chain of custody needed
• Exception: some courts with recordings and if facts suggest recording was "lost" and thus subject to alteration
Electronic Evidence--2 levels of authentication:
• Data (content)
• Person (ID)
Ancient documents:
• Rationale = necessity (witnesses are dead)
• Kairys: free of suspicion does NOT mean the contents are reliable--just that it is an OLD doc
•
Elements:
o Document does not create suspicion
o It is in a place where, if it's authentic, would likely be
o It has existed 20+ years when offered
o Date on document alone is not enough
o Includes digital data (ACN)
Rule 902: Self-Authentication list of 14 categories of evidence that are deemed to be self-authenticating: they require no
extrinsic evidence of authenticity in order to be admitted
• Evidence meeting criteria of any of the provisions of rule 902 is admissible without a showing of authenticity to
the judge
• Parties are still free to dispute authenticity
• Ie:
o Certain domestic and foreign public documents
o Certified copies of public records
o Official publications
o Newspapers and periodicals
o Trade inscriptions
o Acknowledged documents
o Commercial paper
o Certified business records
VI.
Categorical Rules of Exclusion
A. Subsequent Remedial Measures
Rule 407: Subsequent Remedial Measures
• First sentence: Categorically bars the use of evidence of subsequent remedial measures when offered to prove:
o negligence,
o culpable conduct,
o a defect in a product or its design, or
o the need for a warning or instruction
• But like 404, second sentence: evidence of subsequent remedial measures may be admissible if offered for some
purpose other than the forbidden purpose
o Other side must open the door
o Still excludable under 403
• Notes:
o Date of injury governs
o Only changes made POST injury are covered/protected by 407
o Can be offered for impeachment
o But an opponent can argue it should be excluded under 403
B. Compromises, Payment of Medical Expenses, Liability Insurance
Rule 408: Compromise Offers and Negotiations
• bars the admission of evidence of offering or accepting a valuable consideration in compromising or attempting
to compromise a claim that is disputed either as to validity or amount
o Applies only if a claim is disputed
o Not applicable if offered prior to the assertion of any claim
• Exceptions: court may admit this evidence for another purpose
o Proving a witness's bias or prejudice
o Negating a contention of undue delay
Proving obstruction of criminal investigation or prosecution
Can’t be offered for impeachment
Excluded in both civil and criminal
o
•
•
Rule 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.
Rule 410: Pleas
• Only bars if offered against D
o D can offer evidence they rejected a plea offer
o Can offer to show "consciousness of innocence"
o Like 408, no impeachment
• Note: prior plea NOT barred if COMPLETED
Rule 411: Liability Insurance
• Bars evidence that a person was/wasn't insured against liability when offered on the issue of whether the
person acted negligently or otherwise wrongfully
• Ie probably not barred where evidence shows that someone had less of an incentive to do something because
they were insured
VII. Expert Testimony
Rule 701: Opinion Testimony by Lay Witness
A allows lay witnesses to sometimes testify in the form of an opinion: 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 (personal knowledge)
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
Notes:
• Permits resort to inferences (opinions) when it would be HELPFUL (this is KEY)
• Admission depends on 2 factors:
o Degree of generality
o Based NOT on "special knowledge" but a "process of reasoning familiar in everyday life"
o Decisiveness re: the case
o Can't invade jury's province--no opinion allowed re: "guilty" or "negligent"
o If the opinion is actually the issue that the jury is looking at, then judge can exclude
• Subject to 403
Rule 702: Expert Witnesses
General rule: expert cannot testify unless their testimony is based on sufficient facts or data and their opinion is the
product of reliable principles
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
Elements:
• If scientific, technical, or other specialized knowledge
• Will assist (help) the trier of fact
• To understand the evidence or determine a fact in issue
3 prerequisites: experts don’t need personal knowledge (but still subject to 403)
• Qualification as expert à how does one qualify:
o Step 1: establish the educational background and experience of the witness through questioning, as well
as the witness's familiarity with the lawsuit
o Step 2: ask the court to qualify the individual as an expert (but don't have to in WA)
§ Even federal court may not permit expert word
o 104(a) determination
• Reliability of testimony
o Data
§ required
o Method
§ required
o Application of method to data
§ Goes to weight, not admissibility
§ Doesn't necessarily mean it's fatal if the expert didn't accurately apply the method to data
o 104(a) determination
o Governed by Daubert:
§ Recognizes that science evolves and someone is first --> doesn't discriminate against new
methodology
§ Preponderance standard
o Daubert's Flexible Inquiry/Test
§ Focus is solely on principals/methodology:
• Is the technique testable?
• Subjected to peer review/publication
• Does it have a knowable rate of error?
• Standards and controls + applied right?
• Is it generally accepted in the field? (Frye)
§ Focus is NOT on conclusions --> Conclusions don't govern
• Because the two experts will disagree every time --> so the judge can't focus on just the
conclusion of one
Helpfulness
to
jury
•
o Beyond the common knowledge of jurors
o "relevancy plus"
Notes:
• Judge doesn’t have to follow state rules regarding admission of expert testimony in diversity actions
• Kumho Tire (USSC, 1999)
o No uniform standards --> extends to all expert testimony (scientific or not)
o Standardless standard for all expert testimony
o Appellate review = abuse of discretion standard
§ Very deferential
• Standard of appellate review:
o Under Frye: the general acceptance finding is subject to de novo review
§ 104(a) determination
§ Superseded by 702
§ Applies only to scientific evidence
§ Provides for a minimum reserve of experts in the field
§ Promotes uniformity of decisions across courts
§ Serves as a “technical” jury
§ Releveant under a Daubert analysis
o Under Daubert: the reliability finding is subject to deferential review
US v. Lester -- 3 step approach
• Reliability DOES NOT EQUAL correctness
o Doesn't need to be a finding that the opinion is correct, only reliable
• Daubert requires testimony to be BOTH reliable and helpful in THIS case to resolve issues
o Exclude expert testimony if within common knowledge of jurors (if yes, not helpful)
§ 2 factors intuitive: exposure time and retention interval
§ 4 factors outside common knowledge:
• Cross-race recognition, weapon focus, stress experienced by witness, and relationship
between witness confidence and accuracy + thus HELPFUL
o Conduct 403 balancing in determining admissibility of expert testimony
§ Significance of eyewitness ID to case (probative value?)
§ Risk of confusion if expert cant testify in concrete terms (risk?)
§ Risk of "aura effect" (risk?)
• Where you just take the expert's word because they're an expert
• 3 step approach: the approach itself is a 403 consideration really
o Significance of eyewitness ID (probative value?)
o Exclude under 702 if within common knowledge of jurors (not helpful? Not probative?)
o Rule 403 balancing of aura effect?
•
Rule 703: Bases for Expert 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
o The evidence doesn't have to be admissible itself, but it DOES have to be the type reasonably relied on
by experts in the field
• But if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the
jury ONLY if their probative value substantially outweighs their prejudicial effect
o Reverse 403
o Presumption against disclosure
• Governs 4 possible bases:
o Firsthand observation (ie treating doctor)
o At trial: testimony heard by expert (re 615© which allows for expert to sit and watch)
o At trial: hypothetical question (record must support question)
o Pretrial: outside data before trial
• Notes:
o 104(a) determination: if NOT data/facts a type relied on by experts in field, then this expert cannot rely on
the particular data
• Separate issue from 702 which focuses on the total sufficiency of the expert's opinion
o NOT admitted for truth of facts/data (only to understand expert's opinion)
o Rule 705—re disclosure: but if cross brings out data à opens door to rebuttal on redirect
• Court to consider if opponent will disclose on cross when performing balancing test
Rule 704: opinion on ultimate issue
• 704: applies to both expert and lay testimony
o Opinion not objectionable just because it touches ultimate issue
o Does not mean it IS admissible, just not automatically excluded--other rules may bar it
•
•
Excluded in criminal cases: expert opinion that "necessarily compels" conclusion re: D's mens rea
o expert may not give his or her opinion on whether a defendant had the mens rea to fulfill an element of
the crime charged.
Excluded?: opinion that amounts to a legal conclusion
o Many fed circuits so hold based on ACN re: capacity to make a will
o But if it's a subconclusion based more in science than law that helps jury with legal conclusion, then it's
ok?
Rule 706: court-appointed experts
• Gives trial courts authority to appoint expert witnesses
• On party's motion/or on its own
o Court has inherent power; rule gives structure
• Ask parties to nominate experts
• Court may disclose to jury that expert was court-appointed
• Parties may still call their own experts
VIII. Best Evidence Rule
Rule 1002: Requirement of the Original--Best Evidence Rule
An original writing, recording, or photograph is required in order to prove its content unless these rules or def statute
provides otherwise
• Requires production of the original instead of lesser evidence, such as a copy of the same or testimony by a
witness as to its content
• Narrow: it applies only when one seeks to prove the content of a writing, recording, or photograph
• Subject to exceptions (rules 1003-1007)
• Two circumstances in which one is said to be seeking to prove the contents of a writing, and thus two
circumstances in which the best evidence rule requires production of the original:
• Legal Aspect: When proof of the content of a writing, recording, or photograph is an element of the
underlying substantive offense
• Element of the underlying offense/claim/defense
• Practical Aspect: When practical circumstances make it necessary to prove the content or a writing,
recording, or photograph
• something in the material that will establish a fact that you need to prove an element/fact that
you need to win
• Need the original UNLESS it's unavailable through no fault of the other side --> then any secondary evidence
suffices
• If its lost or unavailable, you're free to put in whatever evidence you want
• 104(a) determination
• Original is #1 preferred
• #2 is a duplicate: not an original, not as admissible as an original, but PRESUMPTIVELY as admissible as
an OG
• Prefer over copy or testimony
Rule 1003: Duplicates – PRESUMPTIVELY as admissible as an original
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
• 1001(e)—duplicate: a counterpart produced by a mechanical, photographic, chemical, electronic, or other
equivalent process or technique that accurately reproduces the original
• Copies NOT admissible (if three’s an original) --> duplicates ADMISSIBLE (presumptively)
o Because there could be a challenge to your duplicate
• Duplicate of duplicate is admissible
• Photograph of a writing is a duplicate
o Duplicates: made through mechanical means that reduces likelihood of falsehoods
Copy: anything that you're duplicating by hand --> any duplicate created by a human
§ Ie even if you're retyping everything verbatim
§ Not admissible if an original exists and can be obtained
Digitally enhanced copy of a videotape, or an audiotape is a "duplicate"
NOTE: a photo is a duplicate of almost everything EXCEPT a computer screen
o --> for any of these, still need to authenticate!
2 exceptions: when duplicate not as admissible as original
o Genuine question raised as to the authenticity of the original
o It would be unfair, under the circumstances, to admit the duplicate in lieu of the original
(incomplete/illegible) --> 403 determination
If challenge to authenticity of duplicate, judge admits if reasonable juror could find it authentic
o Authenticity = 901 issue & 104(b) determination
o
•
•
•
•
Rule 1004: Production of Original Excused
Under the best evidence rule, the original is not required and secondary evidence may be used if the original-1) is lost or destroyed, unless the proponent lost or destroyed it in bad faith;
2) is unobtainable by any judicial process;
3) was in the possession of an opponent at a time when the opponent was put on notice that the document would
be a subject of proof at trial, and the opponent does not produce the document at trial, or
4) is only relevant to a collateral matter.
Original required UNLESS:
• Unavailable AND
• Unavailability not due to proponent bad faith
Notes:
• 104(a) determination
• This means a witness may testify to the contents EVEN IF there is a duplicate available
Rule 1005: Copies of Public Records to Prove Content à originals not preferred
Provides a special modification for the best evidence rule for a public record, defined to include both an "official record"
as well as a "document that weas recorded or filed in a public office as authorized by law"
• Preference for certified copy:
o Certified copy okay without accounting for original
o Lost original? --> certified copy preferred even over duplicate
§ Preferred even over handwritten (still original)
• Duplicate NOT admissible as an original
Rule 1006: Summaries
Requirements for a summary to be admitted into evidence to prove the content of voluminous writings, recordings, or
photographs that cannot be conveniently examined in court:
1) the underlying documents must be so voluminous that they would be inconvenient to review by the trier of fact;
2) the underlying documents must have been made available to the opposing party for copying or examination;
3) the underlying documents must be admissible themselves;
4) the summary must be accurate and not cause prejudice; and
5) the summary must be properly introduced with the testimony of the witness who supervised its creation.
• Foundation: need a witness that attests to its accuracy
If the summary document meets all of these requirements, then the underlying documents need not be admitted into
evidence, and the summary may be reviewed by the jurors the same as any other evidence.
• Types of summaries
o 1006: primary evidence summaries
o Pedagogical device summaries: used as illustrative aids, but not as evidence
o Secondary-evidence summaries: admitted in addition to the evidence they summarize
Rule 1007: Testimony or Statement of a Party to Prove Content
Exception that allows evidence of testimony, written state, or deposition of the party against whom the evidence is
offered to be used to prove the contents of a document. Original not needed.
• ONLY written admissions and testimony
Rule 1008: Functions of the Court and Jury
Ordinarily, court 104(a) determines whether proponent has fulfilled the factual conditions for admitting other evidence
of the content of a writing, recording, or photograph under 1004 or 1005. But in a jury trial, 104(b) governs any issue
about whether—
a) an asserted writing, recording, or photograph ever existed
a) refers to the situation in which P seeks to invoke
b) instructs that the court is to decide only whether there is sufficient evidence that the trier of fact
reasonably could find that ie a contract existed
b) another one produced at the trial or hearing is the original;
a) refers to the situation in which both parties introduce what they purport to be originals of the contract
b) So long as a reasonable jury could believe each one to be the authentic original, the question is one for
the jury to decide, and both are to be admitted
c) other evidence of content accurately reflects the content.
a) it's up to the jury to evaluate the secondary evidence offered
What qualifies as a writing, recording or photograph?
• When there are words on an object, then court is going to treat it as either an object or a writing --> up to the
court's discretion and what they think about it
• Inscribed chattels? (Buchanan)
o RULE: if it's an object or a writing, Court has discretion to treat evidence as chattel or as a writing,
examining policies:
• Simplicity or complexity of content
§ The more simple, less likely a failure of memory, more of an argument to treat as a
chattel,
§ The more complex, more likely a failure of memory, more of an argument to treat as a
writing
• Centrality to case; other evidence on point
• Difficult of producing item in evidence
• Dangers of fraud and failed memory
What qualifies as an original? NOT necessarily the "first"
• Rule 1001(d) contemplates that there can be more than one original!!!
o Not focused on order of creation, but which one are we fighting in this case
• Which one gave rise to the dispute
• US v. Rangel
o Carbon copies of original = original ACN
• Counterpart intended to have same effect
o The one at issue in the case = original
o Photos: negative, or any print produced from negative
o Computer print outs:
• Original: Data typed into computer = original + any print out/other output of that data (if it
accurately reflects the information)
§ So photo of data = original (special for computers because you can take a writing to
court but not a whole ass computer)
• Duplicate: Data scanned into a computer
• Copy: Data manually entered into computer from a paper record is a copy of whatever was on
the paper record
o RULE: If a writing is executed in a way that's intended to create multiple originals, they are ALL originals
IX.
Impeachment
5 methods of impeachment:
• Untruthful character disposition 404(a)(3)
o 608(a): opinion and reputation evidence
o 608(b): specific instances of prior conduct
o 609: prior criminal convictions
• 401-403: bias, animus, motivation (noncollateral)
• 401-403: defect in sensory/mental capacity
• 401-403: contradiction
• 613: prior inconsistent statement
Rules governing impeachment methods:
• FRE 607: Witness credibility may be attacked by any party, including the party calling witness.
• FRE 608(a): Opinion and reputation testimony to prove character for untruthfulness.
• FRE 608(b): Evidence of the witness’s non-conviction conduct.
• FRE 609: Evidence of the witness’s criminal convictions.
• FRE 610: Evidence of the witness’s religious beliefs or opinions.
• FRE 613: Prior inconsistent statements.
• --> other forms of impeachment governed by 401-403 + CL background
Intrinsic & extrinsic evidence
• Intrinsic: asking a question of the witness on the stand during cross
• Extrinsic: bringing in exhibits or testimony by OTHER witnesses to prove the impeaching point
• Evidence itself but still be admissible
Collateral vs. Noncollateral
o Collateral: issues that are to the side/not germane to the issues in dispute at trial
o Noncollateral: issues that are central/relevant
o Dictates if you can use extrinsic evidence or are limited to intrinsic evidence
o Can bring in intrinsic evidence for both
o ONLY for noncollateral: can bring in extrinsic
o Collateral: NO extrinsic
o No extrinsic if rule says so
Rule 608: A Witness’s Character for Truthfulness or Untruthfulness
a) Reputation or Opinion: permits an attack on a witness's credibility by calling a second (character) witness to give
opinion or reputation testimony as to the first witness's character for truthfulness
• foundation requirement: evidence of the witness's character for truthfulness is being introduced to
show that the individual is acting in conformity with that character trait AT THE TIME OF TRIAL
• Thus the character witness must be familiar with the individual/reputation AT the time of trial
• A character witness who testifies that another witness has a character for untruthfulness under 608(a) is
subject to impeachment to show that they have a character for untruthfulness
o Ie if X testifies that D witness has reputation for untruthfulness, defense may be able to
impeach on cross by asking X about their own untruthfulness
o So a character witness can be impeached by asking them on cross about their own prior
misconduct under 608(b)
o Yet another character witness could be called to testify that the first character witness has a
character for untruthfulness
• TAKEAWAY:
o Limited to the character trait of veracity
Offered in form of reputation or opinion testimony
Truthfulness evidence only AFTER attack
Foundation must be established:
o Reputation: character witness must be acquainted with target witness AND
§ Community where TW lives, works or goes to school
o Opinion: character witness must show a period of personal acquaintance
o Foundation requirements:
o Rules 404(a)(1)-(2) & 405(a)--Character of accused/victim: character witness must have
been familiar with A or V (or their reputation) at the time the EVENTS AT ISSUE took place
o Rules 404(a)(3) & 608(a)--Character of a witness: CW must have been familiar with the
TW/their reputation at the TIME OF THE TRIAL
b) Specific Instances of Conduct (collateral): provides for a means by which the trier of fact can infer from evidence
of specific instances of the witness's prior dishonest conduct that the witness has a character for untruthfulness.
a) Can be either the witness OR another witness whose character the witness being cross-examined has
testified about.
b) not necessary that the prior conduct be unlawful --> all that matters is that it represent dishonest
behavior on the witness's part
o And the mere fact that conduct is unlawful does not necessarily mean that it cane be inquired
about under 608(b) --> not all prior criminal conduct deemed to be probative for truthfulness
c) the court MAY on cross allow questions concerning the prior conduct of a witness à factors that weigh
against permitting questioning:
o Remoteness in time of the alleged misconduct
o The extent to which the prior misconduct is probative of veracity’
Note: extrinsic evidence admissible to rehab? à depends
o Yes: If extrinsic evidence allowed to impeach for that purpose
o Also if rehabilitating re bias or sensory perception
o SAME RULES (for impeachment) APPLY to rehabilitation
o
o
o
Rule 609: Impeachment by Evidence of a Criminal Conviction (noncollateral)
provides for a means by which the trier of fact can infer that the witness has a character for untruthfulness from
evidence that the witness has previously been convicted of certain offenses
• includes not only those convictions that follow a jury trial, but also those based on a plea of guilty or a plea of
nolo contendere
• a party seeking to impeach through the use of a prior conviction normally does so by asking the witness to verify
that they were convicted of that offense
o If witness denies, the party seeking impeachment can introduce extrinsic evidence of the conviction
§ Normally done through a written record of conviction
• 609(a)(1): key is not the actual sentenced imposed/served but only the POTENTIAL sentence
o If not dishonesty: Must be in excess of one year --> exactly one year not admissible
o If dishonesty: regardless of punishment
• Only rule not subject to 403
• US v Brown (9th) factors: soft presumption against admissibility
o Nature (impeachment value) of prior crime
o Remoteness in time
o Subsequent history
o Similarity between past and charged crimes (creates tension with 404(b))
o Importance of D's testimony
§ Where jury really needs to access credibility
o Importance of credibility issues
•
•
•
Modified reverse 403: PV just outweighs Prej ( vs. substantially outweighs)
§ Slight bias against admission
Reverse 403: strong bias AGAINST admission
Time measure:
§ Starting date: has 10 years elapsed between the date of the conviction OR of the release of the witness
from the confinement imposed, whichever is the later date?
§ Ending date: no clear answer
Rule 610: Religious Beliefs or Opinions
Evidence of a witness’s religious beliefs is not admissible for purposes of attacking or supporting the witness’s credibility.
• canNOT be used to bolster or impeach
• Ok when religious affiliation bears on motive or bias of a witness
• Under 403: denomination may be eliminated
o Only relevant that it is a common church, not what type of church
Rule 613: Witness’s Prior Statement (either collateral or noncollateral)
a) Showing or Disclosing the Statement During Examination: provides that when a witness is examined concerning
their prior statement, the statement, on request, shall be shown or disclosed to opposing counsel
a) But need not show or disclose to the witness
b) Extrinsic Evidence of a Prior Inconsistent Statement: provides that, as a general rule, extrinsic evidence of a
witness's prior inconsistent statement is not normally admissible unless 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
a) But no specification of any particular time or sequence
b) Two Exceptions:
o When the statement is that of an opposing party under 801(d)(2),
o Or if justice so requires
Rule 806: Attacking and Supporting the Declarant’s Credibility
Provides that the impeachment of the hearsay declarant is limited to evidence that would be admissible if the declarant
had testified as a witness
• Credibility may be attacked, and then supported, by any admissible evidence
• applicable only when a statement is admitted for a hearsay purpose à When a statement is admitted for some
other purpose, 806 doesn't apply
• the court may admit evidence of the declarant's inconsistent statement or conduct, regardless of whether the
declarant had an opportunity to explain or deny it
• regardless of when it occurred
Bias and Motivation: CL, no rule (noncollateral)
• Evidence of “bias” is admissible to impeach the credibility of a witness, and is always relevant
• Extrinsic evidence ok – must be admissible itself and still subject to Rule 403 exclusion
• Ie Personal relationships, employment/business relationships, financial stake, hatred, fear, settlement (NOT
barred by 408), fee arrangements, plea bargains, grant of immunity
• Constitutional right to develop bias on part of prosecution witnesses in criminal cases
o Some discretion to limit under 403
• Bias may be shown by BOTH intrinsic and extrinsic evidence
Sensory and mental capacity: CL, no rule (noncollateral)
• Impeachment of sensory or mental incapacity, like bias, motivation or animus, is always relevant
• Can be accomplished both by inquiry on cross-examination and by way of extrinsic evidence*
• * Must be admissible itself (e.g., hearsay, authentication, etc) and subject to Rule 403
• Mental illness: must impact ability to perceive and tell truth
o Ie person hallucinates: admissible
o
Depressed/suffering from a personality defect: inadmissible
Impeachment by contradiction: CL, no rule (collateral)
• Where witness says one thing, and I have proof it's not true
• Subject to court's discretion per 403 and 611 --> ok to impeach by getting witness to admit original testimony
was mistake (intrinsic impeachment)
• Under the collateral-matter rule: NO extrinsic evidence UNLESS relevant for some purpose OTHER than mere
contradiction of the witness
o Substantive issues (merits)
o Something ok to use extrinsic evidence (bias, interest, motive, sensory capacity)
o Linchpin fact
• Vague exception, court's discretion, 403 may exclude
X.
Privileges
Rule 501: Privilege in General (normally a presumption against privilege)
The CL—as interpreted by US courts in the light of reason and experience—governs a claim of privilege unless any of the
following provide otherwise:
• Constitution
• Federal Law
• Rules prescribed by the SC
But in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of
decision
• Diversity civil case with state law claim: state privilege
• Diversity case with federal defense: federal privilege rules govern defense
• Federal & state claims combined: UNCLEAR
General rule: in absence of specific privilege, all witnesses have a duty to provide evidence (testimonial or real)
demanded of them
• Burden on claimant re: existence/applicability or privilege
• Whether the privilege applies is determined by the judge under 104(a)
• Quantum = preponderance
• Privileges apply in all stages of civil and criminal actions
• Evidence is subject to pre-trial discovery in civil proceedings notwithstanding that it is subject to exclusion at
trial under a rule of evidence unless it is claimed that evidence is protected by a privilege
Factors:
• Benefit/cost analysis of sorts
• Experience in the states
• Proposed but rejected rules
• Has congress considered but rejected the very privilege at issue
• Many courts apply wigmore factors (below)
Wigmore four-part test:
• Do the communications originate in confidence?
• Is the element of confidentiality essential to the relationship?
• Is the relationship one that ought to be fostered by society?
• Is the injury to the relationship caused by disclosure greater than the benefit gained in correctly deciding cases
using all relevant evidence?
1. Attorney-Client Privilege
ACP Generally:
• Different from RPC 1.6 confidentiality rule
•
Duty of confidentiality distinguished:
o Privilege: narrow and applies only in judicial settings
o Duty of confidentiality is broader and applies everywhere:
• Judicial AND non-judicial settings
• Extends to things other than communications
• Extends to communications that are not confidential
§ Ie statements made in front of third persons
o Duty of confidentiality cannot prevent court-ordered disclosure
•
•
Burden of proof: party invoking privilege must establish elements by a preponderance of the evidence
Beyond 1 lawyer and 1 client
o Communicative intermediaries
o Joint clients: BE CAREFUL
• Each client can waive OWN privilege
• No privilege between them
• Joint defense agreements (crim)
• Common interest agreements (civil)
o Corporate clients--who is the client? & scope of the privilege
• Everyone's the client (united shoe)
• Subject matter test: federal
§ Employee makes communication at the direction of superiors AND
§ The subject matter upon which the attorney's advice is sought by the corporation and
dealt with in the communication is the performance by the employee of the duties in
their employment
§ --> extends the privilege to communications with lower-echelon employees so long as
the communication relates to the subject matter of the representation
• Control group test
§ Privilege applies only to communications to counsel by persons in a position to control
or take a substantial part in a decision about any action which corporation may take
upon the advice of the attorney
§ Limits the privilege to communications to counsel from a corporation's policy makers
and key actors
• Nobody's the client: radiant burners
Upjohn v. US: re corps and their employees
o Holding: info is protected by ACP, rejects control group test but declines to set rigid test --> no rigid test
o Need to balance factors on a case by case basis
o Policy underlying AC privilege is IMPORTANT
o Factors to consider:
• Communications made by employees to enable counsel to provide legal advice to the corp, and
employees are AWARE of purpose
• Communications were treated as confidential
• Communications made at the request of the employees' corporate superiors (not essential
factor)
• Communications re matters within scope of employees' corporate duties
Former management & former officials of the corporate client?
o CFTC v. Weintraub:
• New corp board can waive ACP as to communications between former board members and the
corporation's legal counsel
§ Even if those former board members object
§ New management team represents the corp
o In WA--Newman v. Highland SD
• ACP doesn't broadly shield communications between corporate counsel and former employees
•
•
•
•
•
•
•
Crime fraud-exception:
o No ACP when the client seeks lawyer's advice/help in connection with the commission of crime or fraud
o Not necessary that the attorney actually assist the client
• Attorney need not be co-conspirator or provide legal directions on how to commit crime/fraud
• Applies even if attorney takes no steps after the communication to further the crime or fraud
• So applies if attorney declines to do the legal work
• No CF exception if attorney alone is responsible for misconduct
Future crime fraud exception
o Client was engaged in or planning criminal/fraudulent conduct when sought advice AND
• Or client later committed a crime or fraud in connection with advice
o Attorney's help sought to further criminal/fraudulent activity (or closely related)
o --> counsel's state of mind irrelevant
o --> not necessary that the attorney actually assist the client
Re Zolin
o Can court review allegedly privileged communication to determine if crime-fraud exception applies?
• YES
o If so, is a threshold showing needed before review?
• YES
• Prima facie--low: threshold showing before engaging in in camera review --> judge should
require a showing of:
§ A factual basis adequate to support
§ A good faith belief
§ By a reasonable person that
§ In camera review of the materials may reveal evidence to establish the claim that the
crime-fraud exception applies
§ --> court has discretion
o If so, what evidence can be used to make showing?
• Anything non-privileged
o What proof needed to establish CF exception? (not tested)
• ???
• But low
104(a) + 1101© re privilege:
o Zolin:
• Court MAY review communications to which a claim of privilege has been made
• In camera (not public) review by judge does NOT extinguish privilege
o Rules do not apply to materials as to which a mere claim of privilege has been made
o A communication is not privileged for 104(a) purposes until a determination has been made that it is
indeed privileged in that:
• It fits the elements of privilege and
• Does not fall within any exceptions
Other exceptions (implied waiver)
o Claimants through same deceased client
• Implicit waiver: Will content amongst heirs or devisees who claim an interest in the estate
through the decease client
• Does not apply to claims against the estate from outsiders
o Breach of duty by the lawyer to client or by the client to lawyer:
• Ie client sues the lawyer for malpractice or the lawyer sues the client for failure to pay fees
o Lawyer as attesting witness:
• A lawyer who attests (bears witness) to client's execution of will may testify to that fact
o But NO death exception --> ACP survives client's death
CL decisions applying 501, defining ACP:
• Where legal advice of any kind is sought
•
•
•
•
•
•
•
From a professional legal adviser in their capacity as such
The communications relating to that purpose
Made in confidence
By the client
Are at their insistence permanently protected
From disclosure by themselves or by the legal adviser
Except the protection be waived
Rule 502: Waiver of the Privilege
Can waive either voluntarily or by disclosing an otherwise privileged communication.
• Inadvertent disclosures--approaches to determine waiver:
o Lenient approach: privilege must be knowingly waived
o Strict test: any document produced, intentionally or not, loses its privileged status with the possible
exception of situations where all precautions were taken
o Middle test: 5 step analysis of the unintentionally disclosed document to determine the proper range of
privilege to extend--considerations: (see below)
• Waiver generally:
o Express waiver by client
o Waiver by lawyer if authorized by client
o Waiver by lawyer through negligence
o Waiver by inaction (ie no objection in deposition)
o Client or lawyer reveals to non-privileged person
o Client puts privileged communications at issue in case
o Disclosure may act as waiver of more than what was disclosed (see below)
• Middle of the road approach -- codified in 502: approach to inadvertent waiver (of what was actually disclosed)
o Multifactored test:
§ Reasonableness of precautions to prevent inadvertent disclosure
§ Number of inadvertent disclosures
§ Extent (importance) of the disclosures
§ Promptness of measures taken to rectify the disclosure
§ Whether the overriding interest of justice would be served by relieving the party of its error
§ à if waived, documents no longer privileged
• Rule 502(a): scope of waiver
o Inadvertent disclosure can NEVER result in waiver beyond what was disclosed
o If intentional disclosure, extension only if: (like rule 106 of completeness)
§ Same subject matter and
§ Fairness
• Rule 502(b): codifies MOTR approach to inadvertent waiver
o Effect of disclosure in federal court, even in state proceeding
• Rule 502©: effect of disclosure made in state court -o Need to apply whichever law, federal or state, is more protective of the privilege
• Rule 502(f): applies even if state law provides rule of decision (despite rule 501)
• Notes:
o Applies in all cases, even those based on state law or proceedings in state courts
B.
Psychotherapist Privilege
Jaffee v. Redmond (USSC, 1996)
RULE: Communications between a patient and his psychotherapist for purposes of diagnosis or treatment of an
emotional or mental condition are confidential and generally inadmissible.
Holding:
•
•
C.
because a psychotherapist-patient relationship depends on confidence and trust between the patient and
therapist, the important interests that the privilege promotes outweigh the need for the evidence that would
come from psychotherapist-patient communications.
Psychotherapist-patient privilege will serve the public good because it will facilitate the appropriate treatment
to improve the mental health of the country.
Spousal Privileges
Spousal Communications Privilege (Marital Confidence Privilege):
• Evidence covered:
o Covers only confidential communications, NOT observations of acts and non-confidential
communications
• Does it cover things occurring BEFORE marriage?
o No
• What types of cases does it apply in?
o All cases
• Who holds the privilege?
o Both Spouses
• Does it survive death, divorce, or perm separation?
o Yes
Adverse Spousal Testimonial Privilege: broader à covers everything
• Evidence covered:
o All types of testimony, including that regarding non-confidential communications, acts, etc
• Does it cover things occurring BEFORE marriage?
o Yes
• What types of cases does it apply in?
o Criminal Cases
o Civil cases tethered to criminal cases (unclear beyond that)
• Who holds the privilege?
o Witness-spouse
• Does it survive death, divorce, or perm separation?
o No
D.
Clergy-Communicant Privilege
Rule: Communications made—
1) With a clergyperson
2) In their spiritual and professional capacity
3) With a reasonable expectation of confidentiality
Presence of third parties (In re Grand Jury Investigation (3rd Circuit, 1990): like ACP, privilege not destroyed if their
presence is essential to and in furtherance of the communication
E.
Other Privileges
4 defined privileges under 501:
• AC
• Marital communications
• Adverse spousal testimony
• Psychotherapist-patient
Others:
• Parent child
o In re Grand Jury (3rd Circuit, 1997): parent-child testimonial privilege does not exist
• Clergy communicant
• Political vote
• Communications between partners to a civil union