EVIDENCE I
Professor McCarthy
1
I.
INTRO
A.
APPLICATION, HISTORY/BACKGROUND INFORMATION

Focus of course: Federal Rules of Evidence, enacted on Jan. 1, 1975. The rules apply
for all federal court proceedings.

Application: Generally, the rules of evidence apply to both civil and criminal cases.
However, some are specific to criminal and civil only.

History: The "rules of evidence" were extremely scattered and unorganized due to
inconsistent state and federal constitution, case law, statutes, until the enactment of the
Federal Rules of Evidence (January 1, 1975). The enactment of these rules was by far
the most important event in American Evidence Law. Once the federal rules were
adopted, most states patterned their rules after the federal rules while retaining some
of their respective local rules and provisions.
-Alabama History on Evidence: Alabama adopted in 1996; the Ala. R. Evid. are
not completely identical to the federal rules, but they are patterned after the
federal rules. The majority of the rules are the same. (In this class, we are
responsible to know both the Federal and corresponding state rule of Alabama.
If McCarthy teaches the federal rule without reference to the state rule, assume
they are the same)
- Effect of Amendments: The Alabama rules have not been amended like the
Federal Rules of Evidence. Every time the federal rules change, the Alabama
rules get a little different provided that Alabama doesn't amend their rule in
accordance with the federal amendment.

Background information to know:
- In December 2011,
• a new set of federal rules went into effect. Bryan Garner (Black laws) rewrote the
rules to make them easier to understand. Substantively they are the same, but the
terminology has be rearranged to make more sense. The quoted rule in cases prior
to the new changes in 2011, are going to be in the form of the old way the rule was
structured.
- Alabama Rules Evidence:
• have not been amended EXCEPT in last December (2011) the Alabama Supreme
Court sent a revised change to the Supreme Court of United States for amendments
to some of the Alabama rules. For now, only required to know what is in effect
now.

Challenges of Evidence as a trial lawyer: A lawyer whom practices trial work, must
adequately prepare to be organized and QUICK! (TIMELY AND SPECIFIC)
2
1. Making an objection: Generally, when counsel asks a witness to answer a question
on the stand, opposing counsel must OBJECT immediately before the witness
answers, which according to McCarthy is a 3 second time period. Thus, the time
frame to object is very short and one must be adequately prepared.
2. Consequence of failing to object: If a party fails to object, he or she waives the
objection, inadmissible evidence is entered, and the objection will not be preserved
for appeal.
3
B.
EVIDENCE TOOL CHART for Objecting Timely and Specific YET effectively in a 3
second time period. (When evidence is offered, it needs to pass all 5 columns)
Materiality
Relevancy
Policy
- 401
(1)Logical
Relevancy
- 500's: Privileges
-"Of
consequence"
to the case. i.e.
what is the
purpose of the
piece of
evidence being
offered?
-Evidence has
to "matter;"
i.e. something
to do with the
case.
Ex: Car wreck
case and
asking witness
the color of
the car that she
saw passing at
a fast speed.
Ex: Where
were you (d)
at the night of
the crime?
- 401; "any
tendency to make
the existence of
any known fact
more probable or
less probable
than it would be
without the
evidence. (Does
the evidence
prove or say it
will prove what
your going to
say)
(2)Legal
Relevancy
- 402, et seq. (rest
of the 400's rules)
- Ex: Murder
case; prosecution
attempts to offer
prior murder acts.
Does it get
admitted? No.
Rule 404 (rules
of court)
character
evidence restricts
prior murder acts.
- Therefore, it
can be logical,
but it can be left
out on the basis
of rule 402, et
seq.
Procedural
- 100's:
Objections; be
Ex: Prosecution asks D on the timely and
stand in trial "didn't you tell specific
your lawyer that you did the
act." This would restrict entry - 200's: Judicial
because of attorney/client Notice; Ex:
privilege.
"Obama is the
current president"
- 600's: Witnesses; personal
would satisfy an
knowledge of witness
objection for
judicial notice
-700's: Opinion Testimony;
because it is a
Ex: Med Mal -cardiologist
fact not subject to
accused of messing up
reasonable
surgery. P wants to call expert dispute (stuff
on cardiology that is well
everybody
renowned, etc. P expert will
knows)
be allowed to give expert
testimony.
-300's:
Presumptions;
-800's: Hearsay; Ex: Jo said
not very common
that Sally Said, that Billy
in practice.
said. Hearsay is most
important and most tested.
-1100's: Where
Generally, we do not like
the rules of
hearsay, but there are
evidence apply
numerous exceptions.
-900's: Authentication or
Identification; Document or
recording must be
authenticated before entering
into evidence.
-1000's: Best Evidence Rule
(Not common); Generally, we
prefer the original
document/copy of document,
but there are tons of
exceptions.
Extraneous
- 402:
1. Const.
2. Statutes
3. Rules
Court
of
-These are
three
exceptions
under rule
402. Relevant
evidence is
admissible
except under
the above 3
exceptions.
Ex: admission
by D that he
killed victim;
if it was a
custodial right
such that D
did not get his
Miranda
rights, the
evidence can
still be
excluded
under 402
regardless of
satisfying all
other
requirements
of
admissibility if
D did not get
his Miranda
rights.
*Even if material and relevant, it can
stay out of the case for policy reasons.
4
II.
MATERIALITY AND RELEVANCY
A.
MATERIALITY - To be Relevant, Evidence must first be MATERIAL!

Side note: Rules 401, 402, 403 apply to all proceedings in all courtrooms in Alabama.
 Fed. R. Evid. 401 - Definition of Relevant Evidence (MATERIALITY is subsumed within
the definition of Relevant Evidence)
(1) "Relevant Evidence" means evidence
(2) Having any tendency to make the existence of any fact
(3) that is of consequence (Material) to the determination of the action
(4) More probable or less probable
(5) Than it would be without the evidence.

MATERIALITY - Under the restyled Federal Rule of Rule 401, the threshold issue
whenever a piece of evidence is being offered (whether it be in the form of testimony,
document, tape), every question surrounds WHAT IS THE PURPOSE of that evidence.
Every piece of evidence needs a purpose. For it to have a purpose, it must be "OF
CONSEQUENCE" to the determination of the action. (i.e. ask yourself if the evidence at
issue has anything to do with the case at bar)
- Example: D broke into LL COOL J's house 2 days ago. Counsel asks D, "WHERE
were you on the night in question?" Opposing lawyer objects and says not material. To
rebut, you state it's material b/c is it "of consequence" to the determination of the action.
 3 primary ways a piece of evidence becomes material – EXAM QUESTION
 1. Substantive Law
 2. Open the Door
 3. Credibility
o (1) LOOK TO SUBSTANTIVE LAW (most important way for it to be material).

- The evidence is material if it goes to:
o (2) an ELEMENT of the crime or cause of action; OR (OPEN THE DOOR)
o (3) Credibility to DEFENSE to the crime or cause of action.
o Ex: Pita Loco gets sued; P slips and falls on banana peel and sues pita loco. P wants to
offer evidence that 5 hrs before the accident the banana peel was there numerous hours
before hand. (Substantive? YES, b/c it is given to establish an element of negligence,
which is BREACH OF DUTY. Thus, the evidence of the banana peels existence for 5
hours before the accident would be MATERIAL)
5
o 1. - Substantive Evidence Offered for Defense: In the same example above, P claims
that he hurt his back, and D (Pita Loco) wants to offer evidence that P went to the doctor
for prior back pain before the slip and fall, which could establish the result that P's slip and fall
at pita loco slip was not the P's primary source of back injury. (Substantive? YES. It is offered
for defense, thus the evidence of the "prior back injury" goes to negating P's injuries, and
would be material as being a defense raised by D)

Ex: Woman sues Ford b/c she was injured driving a Ford vehicle claiming
that the seat belt didn’t work; she sued for personal injuries and anguish
(losing sleep and anxiety). D wants to offer evidence that the mother was
seeing a psychiatrist and counselor prior to accident. (This Defense goes to
the materiality of showing that the accident was not the primary purpose
of the mental anguish damages)

Ex: (Make sure the substantive law is not altered by State Statute) Parents
sue b/c sons seat belt didn't function properly. Sued ford motor co. under
Ala. Wrongful Death statute and want to offer evidence of all mental
anguish suffered. In Ala., mental anguish doesn’t have anything to do with
the case, b/c in Alabama you only get punitive damages; Thus, this would
not be substantive satisfying materiality b/c mental anguish is not
permitted under Alabama Wrongful death. HOWEVER, you could still get
the evidence in under another rule, etc.

- In all, you must know the substantive law in order to understand
whether evidence is material under this particular way to get
evidence admitted.

***Side note: Remember that there are SEVERAL other steps under the "CHART" not
just materiality.***

2. "OPENS THE DOOR" - United States v. McRae; D's testimony stated that he was
distraught over his wife’s death and that he accidently killed his wife (victim); trial court's
admission of prosecution’s evidence of his subsequent intimate relationships two months
after wife's death was held as admissible to negate his testimony of his grief/intense
devotion to his wife & family in his attempt to cast the murder as an accident.
o Opening the door Rule - through testimony - evidence offered in argumentative
counsel - a party may make evidence material that otherwise would be immaterial.
Ex: D says that he has never been in trouble with the law; thus D opens the door to
prior acts of "being in trouble with the law."

Ex: Car Wreck case; D on stand and lawyer asks, "have you received a ticket
for speeding, etc?" D says no. Then you can introduce it. (Opened the door)
6

3. CREDIBILITY - evidence which goes to show that a witness is not credible (i.e.
impeachment); witness says "Joe ran red light" but in the past he said he didn’t. This goes
to attacking credibility. (See Old Chief v. United States supra, which discusses when a
party will try to avoid introduction of otherwise material evidence by STIPULATING that
he or she is a felon. Court held: D is not relieved; the materiality of undisputed facts are
fair game).
*********- Exam will focus on 1 or 2 above.*********

Casebook Notes on Materiality and Relevancy - (These notes are not derived from class)f
o Fact of consequence to the determination of the action (aka materiality) –
• Relevancy is not an inherent characteristic of any item of evidence, BUT exists as
a relation between
 1. an item of evidence and
 2. a proposition sought to be proved.
o If an item of evidence tends to prove or disprove any proposition (claim or defense), it
is relevant to that proposition.
o If the proposition itself is one provable in the case at bar, or if it in turn forms a further
link in a chain of proof leading to the final proposition of which is provable in the case
at bar, then the offered item of evidence has probative value in the case.
o Pleadings, procedural rules, and substantive law, which govern the case, determine
whether the immediate or ultimate proposition sought to be proved is provable in the
case at bar. B/c relevancy means to prove a proposition properly provable in the case, an
offered item of evidence may be excluded as irrelevant for
• (1) not probative of the proposition at which it is directed, or
• (2) b/c the proposition is not provable.
o Undisputed facts - evidence is not excluded under rule 401, only under rule 403. So if
not objected to under 403, the fact of consequence to which the evidence is directed need
not be disputed, and such background evidence such as photographs, views of real estate,
basic bio info of a witness, murder weapons, is relevant under rule 401. In order to get
it excluded, an objection must be raised under 403.
o Real and demonstrative evidence –
• Real = actual murder weapon, product that caused injury;
 PHYSICAL EVIDENCE
 having or alleged to have an actual connection to the events that are the subject
of the trial.
• Demonstrative/Illustrative = charts, models, maps, drawings, most photos, films,
videotapes; no real connection to the events but are tangible items that are employed
11
to aid the trier to comprehend testimony or other evidence.
o Both real and demonstrative evidence are subject to relevancy requirements of rule
401, 402, 403. Real and demonstrative evidence are also subjected to
AUTHENTICATION or IDENTIFICATION (foundation presented that the item is
• 1) relevant,
• 2) its identity is known, and
• 3) that its condition has not materially changed
o - Foundation must establish that the item depicts RELEVANT info and that it is or will
be proven by other SUBSTANTIVE EVIDENCE; that is accurate; and that it will aid
the trier of fact in understanding the evidence.
o - View by trier of fact - Whether a view of a scene, etc should be taken by the jury is
with the trial courts discretion and subjection to only review for abuse of discretion. The
discretion is generally affirmed in the negative on appeal.
B.
RELEVANCY AND ITS LIMITS
Fed. R. Evid. 401 - Definition of Relevant Evidence

"Relevant Evidence" means evidence
o 1. Having ANY TENDENCY to make the existence of any fact
o 2. That is of consequence (Material)
o 3. to the determination of the action
• A. More probable or less probable
• B. Than it would be without the evidence.
RELEVANCY –

Two types:
o (1) Logical
o (2) Legal

1.) Logical Relevancy - Fed. R. Evid. Rule 401 or 401(a) for Alabama.
o TEST - Does the piece of evidence have "ANY TENDANCY" TO MAKE A
MATERIAL FACT MORE PROBABLE OR LESS PROBABLE than it would be
WITHOUT the evidence."
o (Not a lot of tendency--just "any" tendency. Doesn't have to be all that good). Abuse
of Discretion standard makes it hard to reverse introduction or exclusion of evidence.
12
o
o Consider the following when making a relevancy determination:
• 1. Similarity - Ex: Altering odometers; D on trial for intentional fraud, and
prosecution wants show evidence that the same week you did the same thing to a car
(altering odometer). Is it of consequence? Yes; it shows intent; does the fact that I
did the same thing a week ago to the other car have any tendency? Yes. (Note to
Remember: this is just a RELEVANCY inquiry, so we haven't considered past acts
rules, character, etc).
• 2. Remoteness - Ex: Prosecution Offers evidence that 15 years ago D lied about
maintenance history to show "intent". Is this evidence relevant? Tougher call. At this
point, you stand at the judge and make an argument. Evidence is not as similar. On
trial for rolling back odometers not maintenance history, and on top of that
REMOTENESS is at issue since this evidence was from 15 years ago.
o - Side note: Generally, this boils down to how persuasive the lawyer can be
 Implication of the rule:
* 1. Evidence must be "probative" of the proposition it is offered to prove, AND
* 2. The proposition to be proved must be one that is "of consequence to the
determination of the action." Whether a proposition is of consequence to the
determination of the action is a question that is governed by substantive law.
*See State v. Nicholas - Statistics show 60% that it was D's DNA, based on him being a
non-secretor. Facts: D convicted of rape. State introduced evidence of lab tests to show
that D was a non-secretor to indicate that it was more probable that D was guilty. Issue:
Whether the admissibility of the lab tests was admissible as relevant evidence to the issue
of the D's identity? Held: Yes. Reasoning: In reaching their decision, the court of appeals
held that the evidence was relevant; the evidence tends to limit the possibility of other
perpetrators and to some to degree make it more probable that D was guilty of the rape. D
failed to allege prejudice under rule 403 (exclusionary rule), thus the probative value
argument to the jury was not error.
• - Notes on Nicholas - Studies today show that a Majority of people are secretors; resources
now state that about 17 percent are non-secretors. However, the court in this case came up
with a 60% figure, which still obviously favored the prosecution in limiting other
perpetrators. Blood group evidence had more probative value because it linked D to the crime
charged by limiting other perpetrators, which in all carries more weight than the fact that D
was in the city at the time of the crime, or some other broad evidence that could have been
offered. Doesn't have to be more or less than 50 %; only has to have ANY TENDANCY.
This the court will determine.
o Reviewing materiality and relevancy: ANALYSIS conducted in determining whether
evidence is relevant AND material –
o
13
• 1st step –
 Is the evidence Material? (e.g. is the lab test evidence offered to prove that he did
crime charged [rape]? Yes. It goes to proving the proposition that D is guilty of
raping victim)
• 2nd step –
 Logical Relevancy? - Any tendency (60%) makes the probability that he did
commit the crime more likely; doesn't mean the evidence has to be good. (Logical
relevancy rules are liberal)
 Example: Prosecution wants to offer evidence that D owned a gun at the time of
murder.
* 1) Offered to prove MATERIALITY by prosecution to show he committed
the act (murder by shooting). Does it make ANY TENDANCY to make it
more probable or less probable without the evidence? Yes; ownership
shows that there is likelihood that D did it.*However, what if prosecution
is offering evidence that D owned a knife (as opposed to a gun) and the
murder was committed by a "shooting"? 1) Material? Yes, b/c the Purpose
is to show that he did the crime (murder).
2) Prosecution loses on logical relevancy b/c it is NOT LOGICALLY
RELEVANT since the murder was a shooting not a stabbing.
- See State v. Kotsimpulos (Relevancy and material analysis)
o Basic Facts: D accused of stealing 5 pork tenderloins from the meat plant D worked at.
Meat ended up in his car. D Convicted of theft and appealed.
• Evidence at issue was exclusion of D's request to enter evidence that boss said, "I'm
going to make you lose your job." D offered this evidence on the basis that the pork
could have been "planted" in his car, thus establishing reasonable doubt to D's guilt.
Trial court didn't allow this evidence.
 Process of solving whether evidence is material and relevant: (using State v.
Kotsimpulos as the example)
* 1. First, ask is it material? Test: Is it of consequence (material) to this case?
Purpose of D offering the evidence was that D was "framed," which is material
to show that D didn't commit crime of theft.
* 2. Second, is it logically relevant? Test: Does it have any tendency to make
the existence of any fact (theft) more probable or less probable? Logically
relevancy comes down to how PERSUASIVE you are. (A good argument in
favor of getting the evidence entered is that stealing would lead to termination,
thus possessing logical relevancy and (since our rule is liberal), the fact of D's
boss saying "I'm going to get you fired" is relevant. (BE PERSUASIVE).
* - Most important thing to remember from a realistic perspective:
• how much time do you think appellate court judges think about whether
14
the evidence was logically relevant? Probably not much time, because the
standard on evidentiary matters is for ABUSE OF DISCRETION - more
than wrong not just merely wrong. Therefore, deference is given to the
trial court on discretionary matters such as logical relevancy. See State v.
Kots holding (references Rule 403 and abuse of discretion standard which
formed a major basis of the courts holding in this case; McCarthy mainly
referenced this case in class discussion to conduct a materiality and logical
relevancy analysis): Evidence may be thrown out if its probative value is
substantially outweighed by the risk of creating problems for the jury (misleading
jury). When the probative value is 0, the evidence is simply not admissible. The
presiding justice must exercise his discretion in determining whether logically
relevant evidence is so lacking in probative value that it should be excluded under
the circumstances of the case. Defense counsel conceded that there was no
evidence that boss had participated in the surveillance or apprehension of D, nor
was there any evidence that boss had an opportunity to plant the pork tenderloins
in D's car. Under the circumstances of this case, there was no abuse of discretion
on the part of the presiding justice in excluding the evidence in question.
o Revisiting Logical Relevancy analysis (Most emphasis placed on SIMILARITY and
REMOTENESS):
• - Side note: Similarity and Remoteness are influential factors to consider when
making arguments on logical relevancy.
•
• Example (Similarity): If D is on trial for selling used cars and D buys cars for his lot
that have 80,000 miles and back track odometer to say 20,000 miles. D gets sued for
fraud. P wants to offer evidence that the same week D sold P a car, and D sold 5 other
cars the same way (back tracking); Material? Yes; "intent" element material (proof of
element of a claim of intentional fraud). Relevant? Yes. Closely related, similar acts,
which has "any tendency". (Materiality and Relevancy are satisfied)
• Example (Remoteness) Same example as above, except 15 years ago, D lied about
maintenance history of cars sold. P wants to introduce evidence that D lied about
maintenance history. Argument is made that this happened 15 years ago, thus lying
about "maintenance history" is not relevant to the fraud issue of back tracking
odometers (not closely similar) and 15 years ago is too far in time (too remote).
15
(2) Legal Relevancy - (Rules 402 through 415) Fed. R. Evid. 402 –

(EXCEPTIONS to admissibility of Relevant Evidence)
o 1. All relevant evidence is admissible,
o 2. Except as other provided by:
• (a) The U.S. Constitution,
• (b) By an act of congress (federal statute)
• (c) By these rules; or
• (d) By other rules prescribed by the Supreme Court pursuant to statutory authority.
• Example: admission by D that he killed victim; if custodial rights were not given to D (i.e. Miranda
rights) then admissible relevant evidence may be excluded regardless of satisfying every other rule
for admissibility because the U.S. Constitution grants D's Miranda rights.
o 1. Evidence which is not relevant is not admissible. (Irrelevant not admissible)
C.
PREJUDICE
-Intro Note: the underlying purpose for Rule 403 is like Rule 401 in that it favors keeping
evidence in; exclusion is heavily argued, but it is rarely excluded; presumption is to let the
relevant evidence in the case.
- Remember that All good evidence is prejudicial. Only excluded if SUBSTANTIALLY
OUTWEIGHED by UNFAIR PREJUDICE
Fed. R. Evid. 403 - Exclusion of Relevant Evidence on Ground of
Confusion, or Waste of Time
Prejudice,
(1) Relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of
(a) *Unfair prejudice, (i.e. evidence has undue tendency to suggest
decision on an improper basis, commonly - thought not
necessarily - an emotional one; i.e. it appeals to the jury's
sympathies, arouses its sense of horror, provokes its instinct to
punish, or otherwise may cause a jury to base its decision on
something other then the established proposition of the case) - Basically, the Judge thinks jury will use evidence for an
improper purpose.
(b) confusions of the issues,
(c) misleading the jury, or
(2) by considerations of
(a) ) undue delay,
(b) waste of time, or
(c) ) needless presentation of cumulative evidence.
16
- Easy for the offering party to pass this hurtle.
- Before prejudicial evidence is entered, consider the following when
evaluating whether it should be admitted or not:
• (1) Is there a less prejudicial way to get it entered?
• (2) How effective would a rule 105 limiting jury instruction be?
•
U.S. v. McRae, p. 10; (Unfair Prejudice Exclusion)
FACTS: After a conviction and sentencing to life in prison for the murder of his wife, McRae (D) appeals that
photographs of the death scene, and of his wife, along with testimony as to his relations with other women,
were admitted by the trial court in error.
Evidence at issue - gruesome photos of the murder; when dealing with evidence as a such, a D in opposition
to the evidence will generally always raise a 403 objection. If trial judge lets it in chances of getting it reversed
on appeal is slim (i.e. Abuse of Discretion standard).
Making the argument -- counsel should always strive to make the better argument. The advisory
committee states that unfair prejudice arguments are based on two arguments:
1) 1st argument - trial judge determines whether there is a LESS PREJUDICIAL way to
prove the same thing- i.e. a diagram, testimony; or any other less prejudicial way besides
gruesome photos; Attorney's whom are proponents or objectors to any piece of evidence must
recognize the fact that evidence may sometimes be inadmissible to prove one purpose but that
same evidence may be admissible to prove another purpose. Example: Slip on board on steps
in BSL; Dean fixes it the next day and P sues. P would like to offer evidence that BSL fixed
the steps next day; rule - if someone fixes something after an accident it is a subsequent
remedial measures evidence, and P cannot use that evidence to show BSL is negligent - why?
B/c the rule promotes safety. HOWEVER, suppose the Dean say's "were not responsible". P
could then submit the evidence of fixing the steps to show that they are responsible by
showing CONTROL. Therefore, if proponent of evidence is shut down by one purpose, find
another purpose.
2) 2nd argument - Rule 105 entitles D to a limiting jury instruction restricting evidence to
its proper use. Example: trial judge determines how effective a rule 105 limiting instruction
would be if the evidence is admitted. (Photographs example: "Ladies and gentleman of the
jury, you can use the photos as evidence of crime scene, but you are not allowed to get your
sympathies involved; Then, the judge must determine whether the jury will listen to that and
whether it will be effective. If not, the judge may use his discretion on whether or not to let
the evidence be admitted)
- Jury Instructions: Old Chief Case - felon in possession of firearm. Defense lawyer
didn't want all the evidence of past prior acts coming into the case. D said we
STIPULATE that he is a felon. Thus, we stipulate it and it’s not material. Ct opposed
the D's stipulation argument and held it was material. [IT VIOLATED RULE 403
however]
1st - is there a less prejudicial way to prove he is a felon? Yes, he
17
admitted it.
2nd - how effective would a limiting instruction be? SC said trial court
abused its discretion b/c the jury would use it for an improper purpose.
**Review - 1st - what is the purpose? Is it material i.e. of consequence?;
2nd - any tendency (logical relevance), 3) satisfy rule 403? (ANALYSIS)
- Old Chief v. United States, 519 U.S. 172 (1997)
Basic facts - D on trial for being a felon in possession of a firearm.
- Prosecutor for this particular case (felon in possession of gun in violation of criminal statute), the
two elements to prove are: 1) D is a felon, and 2) D possessed a firearm. In this case, the D had a
checkered past with some bad felonies (rape, kidnapping, burglary). Lawyer for D said judge we
STIPULATE that D is a felon, thus the first element is proven (i.e. Defense counsel's strategy is that
now there is no need to prove that D is a felon and evidence of past acts of D's prior felonies would
be restricted because D admitted that he was a felon, thus the evidence couldn’t be offered b/c now
it is no longer material to the case)
Held: The SCOTUS rejected the argument and said that this evidence is still material, (however, it
could still be brought in under another rule). Reason: the advisory committee notes on Rule 401
state that for evidence to be material, it does NOT HAVE TO BE IN DISPUTE (undisputed evidence
comes in ALL the time). RULE: Does NOT have to be disputed to be material.
- However, the court further held that Rule 403 excludes the evidence: 1) Less prejudicial
way to prove he was a felon? No need b/c it was stipulated. 2) How effective would a limiting
jury instruction be? Not effective, b/c the jury would know D is a past felon regardless of the
jury being instructed to not use the evidence to prove that he is guilty for the crime at bar.
- Rule 403 Notes, p. 11-17 in Casebook.
D.
OTHER ACCIDENTS & ABSENCE THEREOF, OTHER CLAIMS
Example: Decedent, Elderly Woman wearing robe while cooking over a gas flame. P's whom are the
administrators of decedent's estate bring a wrongful death claim alleging that decedent was cooking
over a gas flame, the robe sleeve was too long and caught on fire. P's sued under products liability
theory claiming that the robe was defective because (1) sleeve too wide, (2) robe's buttons made it
harder to remove and a zipper would have made it easier to remove, 3) flammable material. P's
wanted to offer evidence of other similar incidents.
- Ultimate issue: Are those other similar accidents admissible?
Simon v. Kennebunkport, p. 17 (other similar accidents)
FACTS: The Town of Kennebunkport (D) contended that evidence of prior slip and fall accidents at the site
of Simon's (P) accident was inadmissible (EVIDENCE AT ISSUE) to show a defect in the design or
construction of the sidewalk. (The state of Maine once had an absolute rule saying that other similar accidents
would never be admissible, but if a state adopts rules patterned after FRE, the rule would be excepted)
18
ISSUE: Is evidence of prior similar accidents admissible to show a defect in design or construction?
RULE: Evidence of "other similar accidents or occurrences" may be relevant circumstantially to show:
o Substantially Similar Rule
1) Defective or dangerous condition,
2) Notice thereof, OR
3) Causation on the occasion in question.
- Therefore, when a party can show other accidents happening under SUBSTANTIALLY SIMILAR
CONDITIONS to the accident in question, the evidence may be admitted subject to rule 403
exceptions. (Remember, the evidence is NOT ADMISSIBLE to show guilt.
***Admissible by one of the 3 ways (stated above) and must be under substantially similar
conditions)
o Another Example: Simon fell on Jan 1, 2010; other similar accident all happened subsequently; I
represent city AND OBJECT, and P says he is giving it to show notice... wouldn't work because these
accidents happened AFTER. It would not be logically relevant b/c notice isn’t after the fact.
o Ex: Pandit case (pg 19); suppose Wal-Mart gets sued for slip and fall. P sues and Wal- Mart doesn’t
have any prior evidence of slip and falls to show notice. THE LACK of accidents may be admissible
to show LACK of defect, LACK of notice, LACK of causation, or LACK of dangerous condition.
(UNSUBSTANTIAL SIMILARITIES). Assuming that lack of accidents occurred under
SUBSTANTIALLY SIMILAR circumstances. If you are representing Wal-Mart, lay a foundation to
prove the fact that lack of notice draws the inference they don’t know about any other accidents, thus
making the indication that there was not an accident on the occasion in question.
• For example, Wal-Mart could state they have surveillance evidence and that they watch them all day
everyday. (However, this doesn't come up too often). BUT, if you are representing D and you know
you client has a clean history, then this is what you would want to do.
o Ex: P gets hit from behind in her car. P sues for negligence; D discovers that this P has filed 10 lawsuits
in the past for people rear-ending her. Defense lawyer wants to get this into evidence that P is a
"professional p" –
o General Rule of Admissibility of Other Claims- cannot offer those other claims to show that the
current claim is a fraud or that person is "claim minded."
• One rare exception - D has evidence that those other claims were in fact fraudulent then they can
come in to show that the current claim is a fraud (Ex: p has admitted to someone that her other
claims were fraudulent and frivolous, and that particular someone will testify against her);
• maybe a 2nd exception - if forbidden by one purpose find another - P gets rear ended; P sues saying
that her neck is injured, but what if P sued prior for same injuries. Purpose of this evidence (prior
neck injury claim) is to show that the damages may have come from some place else. Thus, the
proponent would not be offering the evidence to show that P is claim minded or bringing fraudulent
lawsuits. If objection arises by P's lawyer stating that Defense counsel cannot use this evidence to
show P is claim minded, the Defense could respond by stating that the evidence is material and
relevant to show her damages came from some place else, which would satisfy rule 403.
o ALL OF THESE SCENARIOS
• 1. touches on RULE 105 –
19
 may be inadmissible to one purpose but admissible to another purpose; can you offer this type
of evidence to show D is guilty? No; but can offer the evidence 3 conditions (Defective or
dangerous condition, notice, or causation).
• 2. It lays the foundation
 Substantially similar conditions
* 1. Defective or dangerous condition,
* 2. Notice thereof, OR
* 3. Causation on the occasion in question.
o These 3 cases all require the proponent of evidence to lay a certain foundation; if counsel wants to offer
evidence of prior act, then counsel should "talk facts" that make it substantially similar.
• Example: if it was a dark spooky night on the accident, then the act in question must be a dark
spooky night.
o
Notes - p.19
E.
EXPERIMENTS, REENACTMENTS, ETC.
Fusco v. General Motors Corp., p. 19
FACTS: While Fusco (P) was driving her Chevrolet, it suddenly left the roadway, slid across an ice- covered
embankment, and hit a telephone pole. Fusco (P) was injured. She brought suit against General Motors (D),
claiming that a key component in the steering system had broken due to metal fatigue, causing the accident.
GM (D) contended that the component fractured when the car hit the telephone pole, not before. To support
its claim, GM (D) put together two videotapes to demonstrate that the car would not behave as Fusco (P)
claimed it did if the component had broken before the accident. Fusco (P) objected to the taped scenes on the
ground that they did not adequately replicate the conditions of the accident. The trial judge ruled the
videotapes inadmissible. The jury subsequently awarded Fusco (P) $1 million in damages. GM (D) appealed,
arguing that the tapes were admissible to show general scientific principles.
ISSUE: May trial judges exclude demonstrative evidence unless such evidence has been created under
conditions substantially similar to the actual occurrence on which the litigation is based? Yes.
HOLDING: Manufacturer’s videotapes showing test track replication of accident were properly excluded
RULE: Trial judges may exclude demonstrative evidence unless such evidence has been created under
conditions substantially similar to the actual occurrence on which the litigation is based.
***Sometimes in Court a party will find it helpful to provide a demonstration in court... Generally governed
by rule 403 –

GENERAL RULE for reenactment or demonstrative evidence: those reenactments and demo's are
generally allowed if the proponent shows that it happened under substantially similar conditions and
satisfied rule 403.
 In an experiment or reenactment, lawyers will try to recreate what happened to show a jury (video of car
wreck or something).
20
o RULE: Has to be under substantially similar conditions.
- Scientific Principle versus actual reenactment of an accident
Example: P alleges defective fuel rail, gas leaked out, and it ignited in compartment and came into the car and
burnt passenger. P's sue under products liability theory claiming that the f-150 was defective. To negate the P's
claim, D got an f-150 make and model and drilled holes, etc to show that the flames could not have occurred as
P contends etc. Here, the Defense counsel was not trying to reenact the accident. (D was illustrating a
SCIENTIFIC PRINCIPLE). The bar to gaining admission of the evidence was lower since it was solely a
scientific principle.
Lower standard: the demo needs to be accurate enough to assist the trier the fact. (D was going to use the
evidence through expert testimony showing that the flames were impossible to come out on passenger side and
defense team wanted to show the video to assist the expert’s testimony making it easier to explain to the jury).
Rule of thumb: Lower standard if you’re not recreating the accident and you are solely trying to demo a scientific
principle.
In class Practice Quiz Questions 1) Slip and fall civil case; p wants to offer evidence that 6 others slipped on banana peel at same grocery
store:
a) If caused by slipping on wet floor, this evidence is probable admissible (not substantially
similar)
b) Other accidents admissible to show negligence based on slipping on banana peel (not offered
conclusively to show negligence)
c) p slipped on banana peel after others did, thus these other acts are probably admissible (YES;
but not if p slipped before the other witness)
d) never admissible
2) D is accused of statutory rape of 13-year-old girl. D wants to offer 3 other witnesses that she consented
(purpose to show consent)
a) Material but not logically relevant (consent not material to statutory rape case - not a defense
under statutory)
b) Logically relevant but not material (YES - it would have "any tendency"; but does it matter?
b/c it fails materiality)
c) Excluded b/c it is prejudicial (misstatement of law)
d) This evidence should be admitted (NO b/c it is not material)
21
CHARACTER EVIDENCE Fed. R. Evid. 404 - Character Evidence; Crime or
III.
Other Act
(a) Character Evidence.:

1. Prohibited Uses. Evidence of a person's character or character trait is not admissible to
prove that on a particular occasion the person acted in accordance with the character or trait.

2. General Exceptions for a Defendant or Victim in a Criminal Case. The
following exceptions apply in a criminal case:
oA. 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;
oB. 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:
• 1. offer evidence to rebut it; and
• 2. offer evidence of the defendant's same trait; and
oC. 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.

Exceptions for a Witness. Evidence of a witness's character may be admitted under Rules
607, 608, and 609.
(b) Crimes, Wrongs, or Other Acts.
(1)
Prohibited Uses.
oEvidence of a crime, wrong, or other act is not admissible to prove a person's character in
order to show that on a particular occasion the person acted in accordance with the
character.
(2)
Permitted Uses; Notice in a Criminal Case.
o This evidence may be admissible for another purpose, such as proving motive,
opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of
accident. On request by a defendant in a criminal case, the prosecutor must:
(A)
Provide reasonable notice of the general nature of any such evidence that
the prosecutor intends to offer at trial;
(B)
Articulate in the notice the permitted purpose for which the prosecutor
intends to offer the evidence and the reasoning that supports the purpose and,
22
 C.) Do so, MUST be in writing before trial—or in any form during trial if the court
for good cause excuses lack of pretrial notice. –
 D.) The defendant does NOT need to request this information
Intro Note:
*Character evidence analysis starts with the General Exclusionary Rule (GER) - Rule 404(a)
o which states, "Character evidence is inadmissible to prove that a person acted in accordance
with that character on the occasion in question." (Gives a forbidden purpose)
• Example: Criminal D on trial for stealing. Issue - whether he stole? Just b/c he is a bad
person we don't use that against him (under the general exclusionary that is). Defendant's
gets prosecuted b/c they commit an act, thus the purpose of the rule is to keep evidence
FOR THE ACT IN QUESTION.
o However, in this rule we will study exceptions the general exclusionary rule to get those past
acts, character, etc, in the case.
20
- EXCEPTIONS CHART to get Character evidence admitted: (look at chart)
Conformity 404 (a)(2)(A) - Mercy Rule;
if D
chooses to do so, he can inject his character
into the case and Jury can use this evidence.
Ex: Lance on trial for stealing, and criminal
trial begins. If lance calls character witness to
say "I know Lance and in my opinion, he’s an
honest person in his community." Jury can then
use this evidence for conformity to establish he
didn’t do the crime. (**Does not apply to civil
cases; HINT: likely to be on exam) Character
is not in question at the outset of the case. D
injects his character.
404(a)(2)(B) - Character of
Victim - normally in self-defense cases
Nonconformity
404 (a)(1) Other purpose -
Ex: on
trial for intentional fraud of rolling back speed
odometers; P wants to offer evidence that you
did it to five others. In response to an objection,
show that the evidence is offered to show intent
and not conformity.
404 (b) - Other Crimes, Wrongs,
or Acts
412
Essential Element
405 (b) - [RARE] Some cases where a party
must prove character, and if they don’t, they
will lose their case. Jury instruction must be
given for a limited/other purpose
Ex: Lance sued McCarthy for defamation b/c
M published defamatory article. Answer to
complaint says, "truth" as a defense. Thus, you
would have to use character as evidence or
you'll lose case. (Show that D is a truthful
person by injecting character evidence to
negate the charges against D)
***Essential element of the crime or cause of
action.
(assault, battery, murder, where D pleads selfdefense). Jody is victim, D is on trial, and D
says Jody started it. D can call witnesses to
show Jody is a violent person (victim is
violent thus she started the problem) - purpose
to show conformity that victim is violent
person thus victim started the altercation.
404(a)(2)(C) - Character of
Victim
404(a)(3) - Credibility of
Witness; i.e. impeachment purposes.
When witness takes stand he puts his
credibility at question. If witness commits
felony and he is a witness, you can seek to put
in character evidence to impeach credibility.
413 - Sex Offenders - If committed sex
offense in past, then it comes in. (Rules passed
by congress to make life harder on sex
offenders.
414 - Sex offenders
415 - Sex offenders
20
Methods of Entering Character Evidence --- can come in 3 Different Mediums –
1) Reputation evidence - what people think about that person in a particular community
2) Opinion - some rules allow witness to state whether person in question is honest
3) Acts - "is it true that you (beat up children) at McDonald’s playground." (On crossexamination by prosecution or by D on cross examining rebuttal witness)
- These 3 methods are discussed in further detail below
***Critical note- NOT all 3 will be available. For example, some of the rules say
you can use reputation for one instance but not on the other. ******
A.
GENERAL EXCLUSIONARY RULE OF CHARACTER
- Fed. R. Evid. 404(a)(1) - "Character evidence is inadmissible to prove that a person acted in
accordance/conformity with that character on the occasion in question";
Ex: D robbed bank in past, and D is on trial for robbing bank now. Just b/c D robbed banks in past,
doesn't mean D robbed the bank now. Those prior bank robberies (acts) cannot be admissible under
the general exclusionary rule to show that D robbed the bank in question. Generally, we don’t
prosecute or sue people for being bad people. However, those past bank robberies may be offered
for ANOTHER PURPOSE. Exceptions to the general exclusionary rule are under the following
subsection (B), starting with
 (1). Conformity,
 (2) Non-Conformity, and
 (3) Character as an Essential Claim or Defense.
B.
EXCEPTIONS TO THE GENERAL EXCLUSIONARY RULE
1.
CONFORMITY
- The following areas will be covered in regards to conformity:
Exceptions
• 1. (a) Mercy Rule,
• 2. (b) sex offenses,
• 3. (c) character evidence concerning a victim in a criminal case, and
• 4. (d) habit evidence.
a.
(1st Exception) Mercy Rule
-Fed. R. Evid. 404 (a)(2)(A) -- states, "a D may offer evidence of the D's pertinent trait, and if the
evidence is admitted, the prosecutor may offer evidence to rebut it." (Applicable to CRIMINAL
CASES ONLY; Civil Defendant's Proof of Good Character NOT APPLIED under the mercy rule
analysis - Any ambiguities or uncertainties have been cleared up by an amendment making it applicable
25
to criminal cases only. Before the adoption of this amendment, however, some civil cases were attempting
to apply the mercy rule).
o Purpose of the rule:
 Gives D the choice to inject his character into the case. Example: The Pope could call a
character witness who will say that Pope is "honest" and his "reputation is good." The
character witnesses testimony as to D's character is offered to show that D's character, at
which he injects, conforms with his character now, thus the evidence can be used for the
purpose to show that he did not commit the crime in question.
- Minority of cases: character evidence standing alone can create reasonable
doubt. Ex: the D can only put on character witnesses.
- How do you get the evidence in? How does the D activate the mercy rule?
 1st, Criminal Trial - Prosecution goes first putting on his case in chief presenting his evidence.
Prosecution will put on their witnesses and Defense counsel can cross.
 2nd -When prosecution rests, the Defense puts on their case in chief by calling their witness.
 3rd - When the Defense rests, then we have rebuttal by prosecution. (Prosecution goes first and
last)
- See U.S. v. Gilliland. D's stepson appeared as a witness to testify for D. D's Witness (FACT WITNESS)
was their to testify that he was present when D bought the car and present to see the transfer an exchange of
sale/title. After D testified, the prosecutor cross examined introducing EVIDENCE AT ISSUE, which is past
acts of criminal convictions of D, 14 to 34 years prior to the offense at bar, and prosecution wants to use this
evidence to prove that D stole the car in question. Jury found D guilty for transporting a stolen automobile
across state lines in violation of a Dyer Act. Issue: whether the trial court erred in allowing the character
evidence? Held: Yes. The D must inject character in order for the prosecution to bring it into issue on crossexamination. The witness was solely testifying that he witnessed the sale of the vehicle (FACT WITNESS).
Prosecution could not introduce character evidence in this manner. In addition, the judge has wide discretion
to examine the evidence and determine whether it is still admissible based on the probative value described
in Rule 403.
-Rule of thumb: D HOLDS THE KEYS TO CHARACTER! Prosecution is prohibited from turning
a fact witness into a character witness.
o 1st - Prosecution case in chief (Defense Cross examines)
o 2nd- Defendant's case in chief; *generally when the Mercy Rule is invoked
(Prosecution cross examines)

- TWO MEDIUMS for entering evidence under the Mercy Rule:
 1. REPUTATION EVIDENCE - is D a good person in the community.
 - Reputation Character Witnesses: When reputation character witnesses are
called to the stand on trial in a criminal case, counsel must lay the following
26
foundations:
1. Must attach a community –
• here, counsel is inquiring into what a "community of people" thinks about D; a
community can be any place where a person can develop a reputation (e.g. Town of
Elba, Al -- counsel will ask what D's reputation is in Elba, Al; also a community can be
a school, such as BSL - e.g. the reputation of a student at BSL).
2. Establish Witness's sufficient contacts with community that enables witness to
talk about the D's reputation. (i.e. witness should be from the community).
3. Establish D's contacts with the community (i.e. lay a foundation that D has been
established to the community for a period of time that is long enough to show that
he has formed a reputation in that area)
4. The evidence must be limited to a pertinent trait (i.e. the witness does not testify
to the persons reputation as a whole in a community---the witness must testify to a
TRAIT as associated with crime) Is usually showing VIOLENCE or VIOLENT
Tendency
 1. First, attach a community;
 2. second, establish witness's sufficient contacts with the
community;
 3. third, establish D's contacts with community; and
 4. fourth, attach a pertinent trait]
 Example: D on trial for larceny; what would be a trait that is pertinent to larceny?
o HONESTY -- if it can be established that D is honest, it is probable that D does not to
steal.
 Example: If the crime is just a brutal murder-- pertinent trait? MILD MANOR,
PEACEFULNESS?
o Counsel would proceed to ask the reputation witness "what is D's reputation in Elba, Al for
being peaceful?"
 The usual trait (LAW ABIDING) -- what is D reputation in Elba, Al for being law abiding?
o 2. OPINION EVIDENCE
 - counsel will ask witness, "in your opinion is the D an honest person?

-Opinion Character Evidence - "in your opinion, is the D honest?" Counsel must
establish the following Foundations:
5. Establish Witness's contact with D
• able to form an effective opinion about the D).
27
6. Attach a pertinent trait
• (e.g. "how long you known D?" Response: "20 years, go to school with him,
socialize with him, know him well, etc." Counsel then proceeds to ask witness,
"in your opinion is D HONEST?"
• (Counsel addresses jury stating "ladies and Gentleman of jury if you believe these
character witnesses you can use that evidence to conclude that D is an HONEST
PERSON and that he did not commit the crime in question. (CONFORMITY)
***** ONE WITNESS to both reputation and opinion: Counsel can invoke both
opinion and reputation evidence with the same witness. ********
o 1. **** Cross Examining D's Character Witness's: *****

(Still under the 2nd phase of the proceedings) Defense rest’s their case in chief, now
prosecution has the opportunity to CROSS EXAMINE the D's character witnesses
 ***** Side Note: prosecution also gets a second opportunity on rebuttal by
calling their own character witnesses, Prosecution gets 2 chances to negate
D's character which he or she has injected)*****
Example: Prosecution approaches D's character witness and questions, "you just said
that D is an honest person correct?" Witness responds with "yes." Prosecution proceeds
to ask witness "did you know that D steals from Mr. blind man?" Either way the
character witness answers the question, she is likely impeached. If witness answers
“yes”, obviously witness knows that D is not honest. If witness answers “no”, then
obviously witness doesn't know the D very well to be testifying in favor of him. (These
types of questions usually start with "did you know" or have you heard")
 SPECIFIC ACTS inquiry allowed on cross-examination:
o Fed. R. Evid. 405(a)
 (emphasis on the last sentence of the rule) - "On cross-examination of the character
witness, the court may allow an inquiry into relevant specific instances of the person's
conduct." Under this rule, the prosecution can ask about SPECIFIC ACTS committed by
the D that are inconsistent with the testimony just given as to D's reputation or opinion,
or both.


Therefore, as stated in the example directly above, D's stealing acts (from blind man)
are inconsistent with D being honest)
Remember, every piece of evidence must have a purpose, which is of consequence
(e.g. evidence that D stole from blind person has its purpose to impeach witness's
28
testimony just give).

The purpose of these questions are to IMPEACH the witness’ testimony

 When inquiring into SPECIFIC ACTS, there are THREE rules from the
prosecution must follow: RULES
o 1. Prosecution (i.e. the state) must have a good faith basis that the "specific
act" actually occurred,
o 2. The specific act must be relevant to the pertinent trait, and
o 3. If it’s a "reputation character witness", the prosecution must have a
good faith basis that the act affected the reputation of the accused.
o See U.S. v. Monteleone -- which held not a good faith basis;

Facts: D was charged for disposing of a firearm to a felon. D presented a character witness to
testify about the honest and truthfulness of the D and that he wouldn’t have done this on purpose.

Evidence at issue: Prosecution sought to enter into evidence on cross-examination of D's
reputation character witness that D had once before committed perjury to a federal grand jury.
Was the character evidence properly entered? NO. While character evidence can be entered upon
the injection of the D putting his character in issue, the type of evidence offered by prosecution
in this case was improper. The prosecutor must posses a good faith belief that the described events
are of a type "likely to have become a matter of general knowledge, currency, or reputation in the
community. If the instances are private in nature, then they are not admissible to question the
credibility of a witness. Private conduct not known to the community would likely be irrelevant.
In this case, the prosecutions entering of "D testimony as a witness before a federal grand jury is
protected by an obligation of secrecy."

Examples of "good faith basis" - an affidavit from FBI agent that D told agent D committed the
crime, was held to be an adequate basis for questioning of specific acts; also a letter of reprimand
has been upheld as being a good faith basis.
 Guilt assuming hypos on cross-examination NOT ALLOWED –
o Example: D's character witness testifies that D is an honest person, and counsel proceeds
to ask witness whether witness's opinion would change if D were found to be guilty of the
crime?
 CAN'T DO THIS! This would obviously not be good faith on behalf of the prosecution
when inquiring into specific acts on cross-examining the D's character witnesses.
 Extrinsic Evidence (anything other than the testimony of the witness) NOT ALLOWED in this
29
instance:
o for example, can Prosecution use video evidence when cross-examining the D's character
witness? NO. The State can only attack the witness's testimony and the jury will be allowed
to give it whatever weight and credibility they decide.
o
Thus, when prosecution is inquiring into specific acts to negate the character witness testimony of
D, asking questions such as "have your heard or did you know", the prosecution cannot use extrinsic
evidence under THAT RULE. Whatever answers the witness gives, the prosecution is stuck with.
Once again, it is up to the jury to give it whatever weight. (REMEMBER, that this extrinsic evidence
rule applies under mercy rule as applied to prosecutions cross examination) -- Reiterated once more,
under Rule 405 (a) -- on cross- examination by prosecution, you can inquire about specific instances
of conduct (i.e. an INQUIRY; not a whole host of extrinsic evidence) -- purpose: we don’t want to
drift too far away from the main issue by entering in all this extra evidence.
3rd - Prosecution Rebuttal
 - prosecution now gets a second chance to impeach D's character witnesses by offering "other
negative witnesses" to impeach the witness(s) whom testified in favor to D's character to show
conformity.
 (The same rules above apply; once the prosecution rests their rebuttal by introducing NEW
WITNESSES, the Defense counsel can cross examine the prosecution's witnesses, thus getting
the opportunity to negate the prosecutions witnesses.
 Both parties get the opportunity to cross-examine each other's character witnesses).
o Once completed, the Prosecution can give jury instruction: "ladies and gentlemen of the jury
if you believe prosecution's evidence, you can use this as substantive evidence of
establishing guilt. (Conformity!!) Once again, the jury will be able to weight the evidence
as it see fit.
 Difference between Federal Rules and Alabama Rules under the MERCY RULE
o - (the rules covered thus far are the same as federal, BUT under the Mercy Rule they get a
little different)
o TWO differences between Federal and Alabama:

1. In Alabama, you DO NOT have to attach a pertinent trait (i.e. asking about general
reputation is allowed)

2. Alabama DOES NOT recognize "opinion". (i.e. Opinion evidence not allowed under
Alabama Rule, thus Reputation is the only route D can take)
o ****Note - The main way that mercy rule is activated is by D calling character
witnesses. But sometimes the D unintentionally activates the mercy rule. ****

Example: D takes stand and says, "I’m a good person, I have never been in trouble with
the law, etc..." When D does this, character evidence is fair game. Why? D Activated
30
Mercy Rule by OPENING THE DOOR.
 RULE OF REBUTTAL:
o
Example: Billy witness (BW) in case against his father. BW on stand called by D. On direct, "has
your dad ever been in trouble with the law?
o
Can prosecution now object?


YES; I object because that is improper use of the mercy rule.
On direct, must use
 (1) reputation and/or
 (2) opinion.
 Consequence of answering: If witness says, NO, he has then opened the door.
o
Rule
 - if my opponent goes into something - even impermissibly - I have the right to rebut that with
relevant evidence. Even if D improperly injected this by not using reputation or opinion,
prosecution can continue on with it because it has been injected.

Closest Rule to this is (Rule 106)
WRITINGS AND RECORDED STATEMENTS.

Rule 106 - opponent brings part of a document out (writing or recorded statement). In
fairness, I can bring out the remainder of the writing/recorded statement if necessary to put
the document in context.
31
Hypos for Mercy Rule-- [Gillian case] - D charged with transporting stolen car across state lines. There
was a fact witness who testified as to the transfer and sell by D. Instead, the fact witness is called as a
character witness, thus invoking the mercy rule by D.
Under federal rules, what is correct? (Call of the question)
1) Could the defense attorney ask character witness what the D's "general reputation" is at briarwood
church? NO. Under federal rule, you must attach a pertinent trait. (In Alabama, it would be allowed b/c
Alabama allows asking about general reputation)
2) Could defense attorney ask witness what D's "general reputation" is in the community of Elba, Alabama
for honesty? NO. First, the Defense attorney must establish foundations. While the Defense attorney
complied with attaching a community and a pertinent trait, defense attorney must first establish the other
foundations. [First, attach a community; second, establish witness's sufficient contacts with the community;
third, establish D's contacts with community; and fourth, attach a pertinent trait]
3) Assume that the appropriate foundations have been established for an opinion character witness (attach
community and pertinent trait). Defense Counsel asks witness, "in your opinion is the D a law abiding
person?" State whether this is sufficient under both the federal rule and the Alabama Rule. Answer: Federal
- Yes, Alabama -No, b/c opinion character evidence is not allowed under Alabama Rules of Evidence.
4) Assume that the Character Witness is asked sufficient questions on direct examination establishing the
requisite foundational questions and that D is honest. Now, prosecution cross examines D's character
witness asking "have you been aware that D has been charged with taken stolen property across state line?"
===>Would this question posed by the prosecutor be proper? Yes; it is proper. Prosecution posed a question
about a SPECIFIC ACT consistent with the act being charged.
===>If witness answers with "no, I did not know that," can the prosecution introduce a video? NO. On
cross, this question was to impeach witness -- jury question- go to credibility of witness and not the guilt.
Extrinsic evidence not allowed. Prosecution can only use the response given by the witness, and jury can
evaluate the weight they would like to attach to that particular response by the witness.
5) Defense attorney calls character witnesses saying D is HONEST. In rebuttal, prosecution introduces a
rebuttal witness that "D cheated on tax records and that D robs banks". Assuming prosecution has a good
faith basis, can the prosecution introduce these instances of specific acts on rebuttal? NO. Can’t bring in
extrinsic evidence on [rebuttal direct] - Prosecution can only can inquire about reputation and opinion since
the prosecution will be setting the stage with the new witness. Thus, the defense attorney will be allowed
to ask about "specific acts" on cross-examining the rebuttal witness, which were introduced to attack D's
witness. (Example question posed by defense attorney on cross-examining prosecution’s rebuttal witnesses:
"Did you know that the D won the Medal of Honor for honesty?" Here, the defense attorney is once again
able to reestablish that D is an honest person)
32
Sex Offenses (second set of rules offered for CONFORMITY)
o 413, 414, 415, supersedes trumps rule 404(b).
o Permitted use.
 In a criminal case in which a defendant is accused of a sexual assault the court may
admit evidence that the defendant committed any other sexual assault. The evidence
may be considered on any matter to which it is relevant.
 Creature of Congress; these rules were essentially established to make life more miserable for sex
offenders to create an unfair playing field for sex offenders.
 Fed. R. Evid. 413 - Similar Crimes in Sexual Assault;
o (Criminal Cases; Rule 413 only applies in criminal prosecutions)
o
In criminal cases, rule 413 overrides rule 404(b) when dealing with prior similar crimes
of sexual assault.
o General Rule: In a prosecution for sexual assault, evidence of the D's prior sexual assaults is
admissible FOR ANY PURPOSE THAT IS RELEVANT. (Narrow set of circumstances).
Example: Prosecution offers evidence of prior sex acts; D objects; P says its
sexual assault and rule 413 allows it. Then a jury instruction will be given which
allows jury to consider the prior act for conformity/propensity.
(APPLIES TO ONLY PRIOR SEXUAL ACTS; thus, acts of murder do not
apply under this rule, would have to go back to rule 404(b) analysis).
o -Second part of the rule deals with DISCLOSURES: (Disclosure Obligation)
 If Prosecution wants to use rule 413 evidence, the prosecution shall disclose to D at
least 15 days prior to trial. However, there is a
 Safeguard provision:
 Prosecution can disclose later if good cause shown.
 If not allowed in, Can enter in under any other rule.
o - Effect on other rules provision
 states that rule 413 is not designed to limit the admission of evidence under any other rule
(ex: suppose government doesn't disclose prior sexual assault until the last minute and don't
show good cause for being late. Can the evidence still come in?

YES. The prosecution is allowed to find another rule that doesn't restrict them to abiding
by the 15-day provision; ex: if D opens the door, then they could get it in. Also, they
could try rule 404(b) and find ANOTHER PURPOSE (i.e. intent, knowledge; creative
argument)
- Example of good cause for being late notifying D - find out the night before
the trial of these past acts.
 Fed R. Evid. 414 - Similar Crimes in Child Molestation cases
o This Rule is exactly the same as rule 413 (just deals with Children)
30
 Fed. R. Evid. 415 - Similar Acts in Civil Cases Involving Sexual Assault or Child
Molestation
o - Makes 413 and 414 applicable in civil cases. Ex: If D is sued, P can get in other instances
of child molestation.
*****Remember that 403 (prejudice rule) still applies! Thus, the evidence may past muster
under Rule 413, but there could also be an argument that it doesn't satisfy rule 403
prejudice******
 Alabama DOES NOT recognize rules 413 through 415;
 Advisory committee voted against adoption of these rules
****Note: Courts have found that rules 413-415 do not violate the U.S. Constitution.****
- See U.S. v. Lecompte, U.S. v. Mound, State v. Ellison (pgs. 53-63)
• Rule 403 does apply to sexual offender rules.
• But, the courts must apply rules as their suppose to be applied
• Similarity and remoteness
Character Evidence concerning a Victim in a criminal case (ALSO offered for
Conformity Purposes)
 Fed R. Evid. 404(a)(2)(b) –
 Character evidence regarding Pertinent traits of victim in criminal case


- Gives D option to inject character of victim into a case.
Theoretically, this rule applies to all criminal cases. Practically, only seen in cases
where criminal D pleads self-defense. (Assault/battery/murder)
******- Test questions: will involve assault, battery, or murder case, thus
involving self-defense. *******
 1. Purpose is Conformity.

The point of this rule allows criminal D to offer evidence that the victim is violent and
that victim started the "fight." Thus, the jury can infer that victim started the fight.
 TWO PARTS of the Rule:
2. Any criminal case (practically self-defense cases)
 Operates like the Mercy Rule (reputation or opinion by character witnesses)
 The character witnesses are about the VICTIM (as opposed to the D)
 PERITINENT TRAIT - victim is violent. (Must attach a pertinent trait)
 Must Attach a community.
 Foundations
30
Example: (Character of Victim) D pleads self-defense (He said she said). D knows victim has
reputation for being VIOLENT; Thus, D will call character witness to say victim has reputation
in community for violence. The Witness is from Elba, Al and that is where victim is from.
Witness lived there 20 years (laying foundation) and witness says victim’s evidence against D
is faulty.

This evidence is USED FOR CONFORMITY. It is SUBSTANTIVE EVIDENCE that
victim started the fight. (Under this rule, we are not using to show D's state of mind...
its for purposes of showing victims character.

If you are the prosecution: b/c D injected the victim's character, the prosecution can
ask about SPECIFIC ACTS of victim's character to impeach the witness's knowledge
about the victim.

Prosecution Rebuttal: the prosecution can call character witness to show
that victim is peaceful and the D is violent.

**SAME PROCESS as when D brings forth character witnesses for himself. (See
mercy rule)
(2) Homicide cases ONLY
 "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."
 Example: (When the victim is dead)-- if the D puts on factual evidence that the
victim "started it," prosecution can introduce a character witness that victim is a
peaceful person.
- This is NOT the D offering the evidence. (D is not invoking the rule; D is
solely pleading SELF DEFENSE. If D says the homicide victim "started it",
then Prosecution can offer Character Evidence that D started it. Purpose of
the evidence is to show conformity that peaceful people do not start fights.
 Example: Carino case, D on trial for assault with intent to commit mayhem. At
trial, D claimed the victim (Girl Friend) started the fight and V said he started it.
Thus, we have "he said she said".
- Criminal Case involving self defense. Evidence at issue - that V killed her
previous boyfriend (This is a SPECIFIC ACT - thus, D cannot use it for
"conformity" 404 (a)(2)(b)) and it cannot be offered for the homicide part
b/c its an assault case. What to do? OFFER it under 404(b) for ANOTHER
PURPOSE. For example, if D testifies about his Girl Friend killing her past
30
boyfriend, the D can rebut a past acts objection by stating "D not offering
for conformity, but for state of mind of victim."
 Rule 404(a)(2)(B) - only applies for reputation or opinion.
 If d, think of 404(b) to find another way to get the evidence in.
30
Type of Evidence
Medium
1. V beat people
up in past
Act
2. V carried gun in
past
Act
3. V bad
reputation for
violence (can be
used through 2
sources)
Reputation
4. W testifies as to
his opinion that V
is violent (also can
be used through 2
sources
Opinion
Source
Purpose
Must D know?
Rule 404(b):
specific acts for
another purpose
Rule 404(b) specific acts for
another purpose
-Rule
404(a)(2)(B):
victims character
Non conformity;
ex: state of mind
- If D knew,
404(a)(1)
-Non-conformity;
SOM (state of
mind)
- Conformity
- Yes
-Non-conformity;
SOM (state of
mind)
- Yes
-Rule
404(a)(2)(B):
victims character
-If D knew,
404(a)(1)
Non conformity
-Conformity
Yes; D must know
victim beat people
up in the past
Yes; D must know
victim carried a
gun in the past
- NO; b/c your not
showing state of
mind
- No
- Example: Homicide case; suppose D kills victim at Auburn game. D on trial and
pleads self-defense. Can Abe put on reputation evidence of victim? Yes. (Analyze
under the chart above)
 *Remember, Alabama only recognizes reputation in mercy rule as applied to character of
D. (***BUT in character of VICTIM, Alabama allows BOTH reputation and opinion.
(Probably a good test question)
 Two ways Alabama rule differs:

1. Prosecution only gets to rebut with evidence that the victim was peaceful, not that D was
violent.

2. In Alabama, you can apply this rule in some civil cases.
 Fed R. Evid. 412
 Sex offense cases; The Victims Sexual Behavior (Character of Victim in Sex Offense
cases)
 Most states passed "RAPE SHIELD" statutes to limit the amount of sexual evidence that
come in regarding a victim in a rape case. (Very difficult to get this evidence in)
 The rape shield rule
- has a general exclusionary rule in criminal and civil cases dealing with
victim's sexual predisposition/past. Generally inadmissible,
 EXCEPT under one of the exceptions. The exceptions are in part (b) of the
rule.
37
 Exception in Criminal Cases regarding Victims past sex behavior, etc –412(b)(1)
 A.) Sexual contact between rape victim and 3rd party may be admitted to show an
alternative source of injuries or semen (specific acts between victim and another person).
 B.) Prior specific sexual acts between victim and D can be admitted to show CONSENT; Thus, D
can testify that they had been together other times in the past and D thought she consented.
 C.) Evidence whose exclusion would violate D's constitutional rights to not let in
(normally falls under Confrontation Clause; example: victim testifies and says I have never
had sexual relations before. D can confront the witness. (See Summit)

v. State - V knew about sexual details that were alleged to be done by D, but D wants
to offer evidence that she gained this knowledge from some other source, thus implying
that D didn't do it and if the court does not admit the evidence, it would violate D's
constitutional rights under the confrontation clause).

Confrontation Clause
o The provision of the Sixth Amendment to the United States Constitution that
guarantees a criminal defendant the right to confront the witnesses against him and
conduct a reasonable cross-examination.
 Rule 404(a)(2)(b) doesn't govern 412. Rule 412 trumps general victims
character under 404 if the victim's character is regarding sex offenses.
- See Government of Virgin Islands v. Carino, Summit v. State, In the Interest of John Doe (pg 63-76)
Habit Evidence (last section regarding conformity)
 Fed. R. Evid. 406
 Evidence of a person’s habit or an organization routine practice may be admitted to
prove that on a particular occasion the person or organization acted in accordance with
the habit or routine practice. The court may admit this evidence regardless of whether
it is corroborated or whether there was an eyewitness.
 Habit evidence is sometimes referred to as character evidence.
 Habit evidence is treated different than character, b/c habit evidence has greater probative
value.
 If one's habit or conduct is consistent, automatic, and specific, then one is more than likely
to live your life in accordance with that manner.
 Conformity:
 (Habit is offered for conformity purposes) If something rises to the level of a habit, then the
38
jury can infer that the person acted in conformity with that habit on the occasion in question.
- Example: get in the car and put on seatbelt (habit)
- If in car wreck and M is hurt; an issue is whether M is belted. M introduces
evidence of witness or testimony of those who rode with M several times to say
M always wears his seat belt. Then M can get a Jury Instruction stating that if
they choose to believe the evidence then they can, and the evidence can be used
to establish that M wore the seatbelt on the occasion in question.
 Habit Defined:
 (loose concept-- not easily defined-- there are competing definitions) - the advisory
committee in the federal rules are not very clear on which one to use, but there are couple
of major theories of habit to consider:

1. Pavlovian dog theory (not sure I spelt that correctly)o this is an experiment with a dog where one rings a bell, and the dog will salivate
and get the food. This theory defines habit as a "conditional response" that is
almost unconscious. Example: driving car, using right foot to break (unconscious
choice). This is a MORE NARROW strict rule.

Probability Theory –
o any kind of repetitive conduct (broader test) -- the rational for this theory is that
people are more likely to do what they have done in the past, rather than to choose
a different form of conduct. LESS NARROW RULE (i.e. more broad)
 Common elements to establish habit:



1. Must be a specific type of act
2. Must be some sort of FREQUENCY
3. Invariability

1. Must be a specific type of act.
- Bad example: being a bad driver is not a specific act... it is a character
evidence description.
- Example: former MBA basketball player, whenever he would go to shoot, he
would rub his head (i.e. routine practice such as dribbling three times)

2. Must be some sort of FREQUENCY involved
o (i.e. look at the number of times that the act was performed)-- there is no set
number that makes something a habit.
o (e.g. Done something 2 or 3 times, likely not a habit; if 100 times, then definitely
likely a habit)
39
o Stricter in federal court
-

--The number of times a potential habit is done, must be high. (Maybe not as
strict in state court, and it will depend on the judge)
3. Invariability –
o that when faced with this stimulus, your response is almost invariably the same.
- Example: suppose what M wants to say his habit is "every time I make a turn,
I turn on the blinker and put my hand out the window doing the hand signal."
This would meet element "1", and if M does this 100 times, likely to meet
element "2", BUT say there is testimony that M only did it half the time --- this
would probably not pass element three b/c it is something that M hasn't done
invariably (i.e. always, consistently, regularly)
 Common Ways to prove:
 (1) Person asserting the habit testifies,
 (2) by calling witnesses that say that the person in question invoking habit always puts on
his seatbelt.
NON-CONFORMITY THEORY: COLLATERAL ACTS EVIDENCE
 Intro note: Rule 404 (b)
 opens the door to non-conformity evidence.
 Example: if two D's are on trial for breaking into highly sophisticated bank vaults at a casino
(i.e. hard thing to do; D's are not just Joe Moe criminals). Prosecution would like to offer
evidence of prior bank robberies. D will object under Generally exclusionary rule of
character. Prosecution will respond stating - not offering for conformity, were offering to
show that they are "sophisticated" (OTHER PURPOSE) to break into these vaults. Would
that be material, relevant, satisfy 403?
 Most likely.
***Non-Conformity gives parties another way to get character evidence into the case.***
 Under Rule 404(b) we are dealing with SPECIFIC ACTS.
 Example: D on trial for homicide, and D plea’s self-defense to killing Victim. D wants to
take stand and claim in the past D saw Victim beat people up and kill people, hit them with
hammers, etc. (Self defense) Prosecution says I object under generally exclusionary rule.
D's response: not offering for conformity, only to show "state of mind" that D reasonably
feared for his safety b/c Victim had been a bully, etc in the past. Is it material?
40

Yes. Would it make any tendency (relevant; victim beat people up in the past, thus it
shows "any tendency" that D was scared)?

Yes. Does it satisfy rule 403? Yes.
Fed. R. Evid. 404(b) - Character Evidence; Crimes Wrongs, or Other Acts
 Evidence of a Crime, Wrong, or Other Act,
 1. is not admissible
 2. to prove a persons character
 3. in order to show that on a particular occasion
 4. the person acted in accordance with that character.
 1. The evidence MAY be admissible (ON REQUEST BY THE D) for ANOTHER
PURPOSE, such as proving:










Motive
State of mind
Opportunity
Intent
preparation
plan
knowledge
identity
absence of mistake
lack of accident.
 *In determining whether it be admitted under these "other purposes", a determination
must be made asking whether
 1) the danger of undue prejudice, OUTWEIGHS
 2) the probative value of the evidence,
 3) in view of the availability of other means of proof and other factors appropriate for
making decisions of this kind under rule 403 (exclusion of relevant evidence)
 General things:
 Rule 404(b) applies in both criminal and civil cases
 Deals with "other acts" (not reputation/opinion)
 Prior acts do not have to be a conviction (can be an uncharged crime)
 Common Issue under the rule:
41

how strong does the evidence have to be that the other act occurred?
 Threshold the proponent has to meet; the burden:

the evidence of the other act under 404(b) must be strong enough to where o
o
1. a jury could reasonably conclude that the act occurred and
2. that the person in question - at issue - was the actor.
 The Huddleston Rule





-- this case discusses how strong the evidence must be; most of the time the past act will not
be a conviction, so the judge will make the decision if the evidence is strong enough)
Evidence of a prior act should be admitted under an exception to Rule 404(b) if a jury could
reasonably find that the defendant committed the prior act.
The analysis is always the same. When someone offers a prior act against a party,
o
1st, opposing party objects claiming the past acts to fall under rule 404(a) character
evidence;
o
2nd, proponent says, not offering it for conformity I'm offering for it another
purpose;
o
3rd, the proponent identifies that purpose which must be material, relevant, and
satisfy rule 403.
Last critical pointo
o
in a criminal case, and proponent brings in other acts. Prosecutor must give the defense
REASONABLE PRIOR NOTICE.
In civil cases, most of the time you will have to give notice of 404 (b) witnesses, even
though it is not required under rules explicitly, but judge will most likely require it.
 Types of "OTHER PURPOSES" for non-conformity:

 1. Motive –
 the reason that nudges the will and prods the mind to indulge the criminal intent.

 Frank case:
42
 D kidnapped girlfriend by taking her across Stateline.
 Evidence at issue:
 1) D's drug activity and victims knowledge of those activities,
 2) D's prior abuse of the victim.
 D objects on the introduction of prior acts evidence under the General Exclusionary Rule
 Prosecution responds by saying: I am offering the evidence to show:
 1. MOTIVE
 Material? Yes
 Does the fact that victim knew about D's drug activity have any tendency to
make the motive for the kidnapping established? Yes.
 Does it satisfy Rule 403? Yes.
 Also, one could argue that it is "necessary to complete the story".
*
PRONE TO HOSTILITY
- Hostile in past? Yes
- Some of the abuse was close in time and not too remote, yet those instances
that are too remote (ex: more than a year) may not have as much probative
value, which will ultimately be decided by the discretion of the judge.
Another Example: D on trial for bank robbery. D also has a drug addiction, which Prosecution
sought to enter into evidence. D objected under the GER and prosecution claims the purpose
is to show MOTIVE. Drug addiction could likely lead to someone committing robberies.
o
2 Opportunity - (aka capacity)
-
D on trial for using victims ATM card and withdrawing money.
Prosecution wants to enter into evidence that D broke into victims house a week or
two earlier to show the PURPOSE OF OPPORTUNITY that D stole the victim’s card.
o 3. Intent
-
Van Metre Case: D on trial for kidnapping with intent to rape. D raped and killed victim.
-
Two pieces of evidence at issue:
*
1. Prior acts evidence of a "similar incidence" which was 11 days
prior to crime in question.
- D objects to prosecutions advancement of the evidence
- D counsel says the is character evidence and it is improper
- P responds saying the PURPOSE for the "prior acts incidents" is to
establish INTENT. One must then ask
- (1) is it material?
- Yes; INTENT is an element of the crime charged
- (2) Any tendency?
- Yes; happened 11 days prior - close in time; does it satisfy rule 403? Yes.
43
*
2. Second evidence at issue: Attempted murder of witness---
- Prosecution offers the evidence and D objects under GER
- P says I'm offering it to show "consciousness of guilt" (ex: suspect dies his
hair a different color after a crime is committed).
- P says this other purpose of "consciousness of guilt" is established
because D wanted to spoliate evidence, which could show his guilt.
- U.S. v. Mills: D on trial for falsification of travel documents to get reimbursed for her travels.
Instead of going on the trip that would authorize reimbursement, she went somewhere else for
a high school reunion. Thus, the allegations were that D was cheating on travel expenses.
- Prosecution wanted to offer into evidence:
- "Customs" inspection from the past where D concealed jewelry.
- D objects
- P says offering to establish another purpose, INTENT.
(If she cheated then she must have cheated now)
- The court rejected and said this was offered for
conformity as substantive evidence and said it was not
relevant here.
*
3. Consciousness of guilt –
- a powerful and highly incriminating inference that a judge or jury may
draw from the statements or conduct of a defendant (accused) after a
crime has been committed suggesting that the defendant knows he or she
is guilty of the charged crime.
-
(see directly above under Van Metre (2) examples) - suspect coloring his
hair.
o 4. Preparation/Plan
-
D on trial for burglary
P offers evidence that D went to Wal-Mart and bought a ski mask, tools, etc that can
be used for break-ins.
D objects, and prosecutions responds
stating that
its purpose is to show
PREPARATION/PLAN.
*
Preparation/Plan - defined:
- when properly applied, usually required that the charged and uncharged
offenses be integral components of a "single coherent scheme."
o 5. Knowledge
-
D on trial for breaking into a "highly secure place with advanced technology security
system"
P offers evidence that D broke into "similar secured places"
In response to D's objection, P will say that they are offering it for the purpose that D
has the KNOWLEDGE and knows how to break into a highly sophisticated security
system.
o 6. Innocent Explanation
44
-
D knowingly let minors drink in the household and D found guilty of misdemeanor.
Momma says, "I didn't know this was going on". However, prosecution can rebut the
innocent explanation by saying, "what about the other 20 or so times there were
minors drinking in your home?"
-
Identity (Signature Crimes/Handywork/Modus Operandi)
*
Whitty v. State (sexual assault of minor child)
*
Must be a material piece of the case
-
V testified as to IDENTITY that D was the one who led her to the
basement with the scheme of helping D find a black and white rabbit and
then proceeding to rape victim.
-
D on trial; HE DENIES and say I DIDN'T DO IT (D injected identity)
-
Evidence at issue: V's testimony
-
Prosecution wanted to call a rebuttal witness that "same" thing happened to
that witness.
- D objects as character evidence
- Prosecution say offering for the purpose of IDENTITY (D put identity
into issue)
-
Elements for IDENTITY:
*
*
*
1. Must be a MATERIAL ISSUE in the case
2. Acts committed in a "novel" or "peculiar" manner (leading with a rabbit
3. Must be similarity between past act and one at issue.
Ex: Silence of the lambs; Buffalo Bill released on Parole and started doing the
skinning of people again)
o 7. Absence of Mistake
-
Prosecution says we offer to show "absence of mistake"
D says, "Officer I didn't know, this was a mistake."
P rebuts absence of mistake by asking what about the other 100 times this happened.
***KEY NOTE--- Not offering the evidence for conformity-- Offering it to show another purpose,
thus this evidence is for NON-conformity.
 - Common Argument –
 Not a separate act and it is inextricably intertwined with the act in issue. Ex: D on
trial for hijacking a plane with a gun. Prosecution offers evidence that as D was
going through security, the D beat up the TSA security guard. D objects as character
evidence. Prosecution - not an extrinsic act, it is all part of the same transaction.
45
 RULE - Act is NOT a separate act if:
1) Arose out of the same transaction or occurrence; OR
2) Necessary to complete the story of the crime; OR
3) Inextricably intertwined with the crime charged to D.
- Non-Conformity Notes:
- LIMITING INSTRUCTION - RULE 105; Right to limiting Instruction - Instruct on how evidence is to be applied to its proper ADMISSIBLE PURPOSE.
Ex: It cannot be used to show conformity, only for the purpose of establishing
knowledge.
- PRE-TRIAL NOTICE
- In criminal cases, prosecution must give reasonable notice of the 404(b) evidence,
which is specific past acts for another purpose, such as intent or knowledge.
- REMOTENESS
- - applicable in a nonconformity setting Prior evidence happening to far in time.
- 11 days is more probative than 20 years ago.
-Notes - pg. 35-38, Notes - pg. 42-43, Notes - pg. 44-46, People v. Howard, Notes - pg. 5152
CHARACTER AS AN ESSENTIAL ELEMENT OF A CLAIM OR DEFENSE
 Fed. R. Evid. 405(b) –
 looking at the chart it is the 3rd column. (i.e.3rd way to get around the general exclusionary rule)
 Every now and then, but extremely rarely, you have a case where a party is required to prove
someone's character or they lose the case.
 Can you reputation, opinion, or acts to prove a person’s character.
 *Character evidence is admissible if it is essential element of a parties evidence or dense*
 Affirmative duty to prove character:
 1. Classic Example: (Negligent Entrustment) –
 Suppose that Joe loans M a car and M drives car and runs red light and hits P. P sued M for
negligence. In a negligence case, does either party have an affirmative duty to prove character?
NO. The p just has to prove that M is negligence and caused the P's injuries.
 HOWEVER, in addition to the above facts, the P also sues Joe (who loaned car to M). Cause of action
against Joe would be NEGLIGENT ENTRUSTMENT and that he knew or should've known that M
was a bad driver.

Suppose there is evidence of M that he has a drunk driving record, tickets, accidents etc. (these
acts generally not admissible in case solely against M for sole negligence, BUT, in reference
of the negligence entrustment action,
o
p must prove that Joe knew or should have known that M was a poor driver and not to be
trusted with a vehicle). Now the P takes on an AFFIRMATIVE DUTY to prove that M is
46
a bad driver (character). If they don't prove that M is a bad driver, etc, then P loses the
case.
 **Rule 105 jury

instructions would be needed in this instance moving to "sever" the claims b/c all the bad acts
of M will be in play. If it is all tried to together, then Limiting Jury Instruction will state that
those bad character acts will only be applied to Joes (J) Negligent Entrustment, not to
McCarthy's (M) liability.
 2. Second Example: (Entrapment Defense) –

In Criminal law, where older man is suspected of child pornography by setting up a steam
operation, and was arrested for child pornography. D said he was entrapped. Whether D was
predisposed is an element, thus the party takes on the requirement of affirmatively proving.
 3. Third Example: (Defamation)
 where D pleads truth as a defense - M publishes a statement that Joe is an ax murder. Joe sues
M, and M says, "yea I said that, but it is true." When M pleads truth, M takes on the affirmative
duty that Joe is an ax murderer. Thus if there are any prior incidences of Joe being an ax
murderer, M could bring these acts in order to prove his case.
 - Side note on Defamation –
o
in this type of case, the p is saying that d published an untrue statement, thus P reputation
has been damaged. In any DEFAMATION CASE, the P's general reputation both before
and after the defamation is admissible. The reason is because it goes to damages. B/c if
P has a great rep before and a horrible rep after, then p has a good case. If bad before and
bad after, then P doesn’t have a good case.
- What mediums apply to 405(b) non-conformity?
- So far we have learned 3 different mediums: (1) Reputation, (2) Opinion, and (3)
Specific Acts
***In 405(b), the question becomes what mediums? ALL THREE:
REPUTATION, OPINION, AND ACTS.
Practice Question ANSWERS and EXPLANATIONS (Answers to questions posted on TWEN 9/14/2012
1. C is the best answer. (D implies the wrong standard for relevance; "more likely than not" is not the
correct standard)
2. D is the best answer. (C is incorrect because in this "strict liability" case, care is NOT an issue)
3. C is the best answer; Evidence of "FLIGHT" usually will be admissible. How do we get it in? Offer it
for another purpose (i.e. consciousness of guilt) to show conformity.
IV. SUBSEQUENT REMEDIAL MEASURES (Read through p110)
Fed. R. Evid. 407 - Subsequent Remedial Measures - evidence of SRM is inadmissible for
47
3 forbidden purposes:
1. Negligence
2. Culpable conduct
3. Product liability
a. Manufacturing defects
b. Design defect
c. Failure to warn
- Example: Ford motors finds out that there is a seat belt design defect. M gets injured and sues. Ford
then fixes the defect after the accident. The issue: P wants to bring the subsequent remedial measure
of fixing the seat belt into the case. Generally, it is inadmissible to prove design defect b/c it is a
forbidden purpose under "product liability" under Rule 407 (the old rule had only negligence and
culpable conduct, BUT an argument was made if it were only those two it wouldn’t apply to strict
liability where most product cases arise in theory, but now it DOES apply to strict products liability -- Alabama rule still only has the first TWO, but cases have interpreted the product liability to apply)
- Rationale behind the rule: Ford Motors has sophisticated lawyers who know the repercussions of
subsequent remedial measures, however, we do not want those companies to question whether or not
they should fix a bad product or not b/c of potential future lawsuits; We want to PROMOTE fixing
products, etc for safety reasons.
- To offer another purpose under this rule that purpose MUST BE IN DISPUTE/CONTROVERTED:
-The forbidden purposes are illustrative not exhaustive. The argument is open to PROVE that your
"new purpose" is material. Some other non-listed purposes:
- See Anderson v. Malley - P wants to offer into evidence that D hotel installed safety devices
and D objects under SRM. Hotel Manager takes stand and says we couldn't have made it any
safer. But they did make it safer.
- Feasibility of precautionary measures; D
DISPUTED/CONTROVERTED the feasibility of the precautionary
measure.
- On another note, what if hotel manager takes the stand and says we could have made it safer
but we didn't do it. (Here he is not CONTROVERTING or disputing it)
Dispute Requirement:
Example: (Control) Man works for Alabama Power (D) and while at a job site, he gets hurt and
dies. Injuries could have been remedied if there had been a first aid measures. After he was
hurt, D put in a first aid thing. At trial, the P wants to offer evidence that they put in the first
aid kit. D objects with SRM. To refute it, P argues that Alabama power has CONTROL, but if
Alabama Power (D) stipulates to that and says yes we do control that area, then there is NO
DISPUTE. Therefore, this point makes it clear, that it must be CONTROVERTED for it to
come in.
Example: P falls on broken step at BSL and breaks his arm. The next morning, Dean Warren
and Bushnell are seen fixing the steps. P sues, and wants to offer evidence that day after the
injury the Deans were fixing the steps. D, BSL objects under RULE 407 - SRM. P then rebuts
and says were not offering to prove one of the forbidden purposes. We are offering it to show
control or ownership (another purpose to show nonconformity). Additional aspect for another
purpose: If D, Dean Warren says we don't own that, THEN IT WOULD COME IN b/c they
48
are not controvertng the allegation of control for which the evidence is offered. On another
note, if they admit they own it and control it, then they are not controverting and it will not
come in.
Example:
JAN 1, 2010 Ford (D) manufactures a car.
JUNE 1, 2010 (5 months after) ford changes the seatbelt design.
JAN 1, 2011 (7 months after change) P had accident in the particular car made in
2010
- The design change was NOT SUBSEQUENT TO THE INJURY. The design
change was made before the injury occurred, thus the rule would not be applied.
***Keep in mind, the rationale behind SRM rule- want to encourage repairs and safety. (e.g.
Ala power installing the 1st aid kit was a good thing)
 Non-party SRM - Does the rule cover measures taken by non-parties?
 Example: P slips on steps at BSL. Random Guy (3rd party) on street hears about the bad step and
that P was injured and he fixes it. At trial, P wants to offer the fix by the 3rd party. D, BSL says
SRM, and P says its a NONPARTY. Response: If non-party, rule 407 does NOT apply to changes
made by nonparties or those not responsible for the harm. THUS, the evidence will come in b/c rule
407 doesn't apply b/c the random guy is not a responsible party. [Rule 407 would not apply in this
instance]
- Rule 407 head spinner: Subsequent is after the injury.
Example 1:
Jan 2000 - p buys car
June 2000 - D changes
design Jan 2002 - P
injured in car
- P wants to get into evidence the design change. D says I object - rule 407.
RULE 407 WOULD NOT keep the evidence out in this instance. (Since the
design change was made before the injury, rule 407 would not apply) Thus,
we must determine another way to get the evidence admitted?
Example 2:
Jan 1, 2010 - K injured with saw
Jan 15, 2010 - Design
change Jan 20, 2010 - S
injured with saw
- K AND S want to get that design change into evidence. Rule 407 applies in
K's case so the analysis applies b/c design change was made subsequent to K's
injury. S wants to offer it into evidence as well, and D objects as SRM. S says
not a SRM at all, b/c the design change became before the harm. S would
49
have to get it in under a different rule b/c they rule will not be invoked! D thus
cannot rely on rule 407 to keep the evidence out in S case b/c it would simply
not apply since the "fix" was not made after his injury.
V.
COMPROMISE AND OFFERS OF COMPROMISE
- Rules 408, 409, and 410
Fed. R. Evid. 408 - Compromise offers and negotiations
Purpose: to encourage people to settle! Generally in trial, open and candid negotiations
and offers of compromise are inadmissible.
Common Law - case dealt with "offers of compromise" - "I'll pay you $500 if you agree
not to sue me" -- this was protected; but rule 408 made it BROADER!
Modern Rule - ANY STATEMENT made in compromise and negotiations, to attempt to
settle a disputed claim are NOT ADMISSIBLE on the issues of liability or amount.
 3 ELEMENTS FOR THIS RULE  1. Must be a DISPUTE as to liability or amount

(ex: M and K get into wreck, and both dispute on who ran a red light; thus we have a dispute.
Also, there can be a dispute as to amount of money to satisfy the damages). If after class, K
orders beer and leaves, and bartender says you owe me $3 dollars, and K says I only owe you
two bucks-- this is not a dispute.. it is weak. Must be a dispute over liability or amount.


 2. Must be an offer or acceptance OR in compromise negotiations

i.e. offer money to settle claim OR in negotiations.
o
One way to object is to say your not having a compromise or negotiation (See
Rochester v. Mulach -- Landlord and Tenant case; moves out and L sends letter
with damages, and T respond admitting to some damages but did not admit
others; there was NO COMPRPOMISE. However, it would have been a
compromise IF T's letter said "can I just pay $700 instead of the $1000 you
claim I owe." BUT IN THIS CASE, it was not a compromise at all)
- Compromise defined - simply, where the parties are looking for
settlement in resolving their differences
- HOW DOES IT COME IN? To determine whether parties are in a
compromise negotiation, RULE 104 comes into play to help.
 Rule 104 Preliminary decisions –

1. judges throughout out trial make numerous preliminary determinations (e.g.
this is invoked when counsel files a pre-trial motion; counsel and judge have
50
side bar discussions; counsel asking "judge may I approach the bench;"
whatever method chosen, the Judge will make the preliminary decision).
Judges make all sorts of these decisions. For example, say that something is
privileged. HOWEVER, when dealing with privileges, the judge is NOT
BOUND by the rules of evidence (i.e. the judge can consider whatever
evidence he wants.. hearsay, character, etc)
(2) OFFERED FOR a Forbidden purpose –
- 1. if inadmissible under
- (2) to prove the validity or invalidity OR the amount, WE IDENTITY ANOTHER
PURPOSE, which will be material, relevant, and rule 403. Ex: S gives testimony
against M. M counsel S and says awful things about M. P and S were both in
accident and D asks M weren't you in the car too and paid out by 200,000.
Objection, rule 408. Response - Not offering to show forbidden purposes, but
offering to show "bias". (?)
- Mediation: formal way of trying to settle lawsuit. There are SEPERATE mediation rules which
will cover admissibility and statements in mediation, thus it provides for more protection. If you
want to get it in, just b/c you satisfy 408 doesn't mean it comes in, b/c we have tougher rules under
mediation rules if the case goes to mediation.
- EXTREMELY IMPORTANT - ("contradicts" Rochester case under PA rules) Rochester case
dealt with admissions made in compromise (e.g. M and S in negotiation and M says I'm "sorry" I
know I ran the red light, so will you take X amount of dollars and S says no.
51
- M's admission of fault does not come in under Alabama and federal rules -admissions are protected in compromise; but Rochester allowed it under PA law, which
doesn't apply to us, unless litigating in PA)
 Joint Tortfeasors:
 2 people responsible; suppose P sues both D1 and D2 as joint tortfeasor's. P settles with D1 FOR
$10,000 and proceeds to trial with D2. Can the jury be made aware of this 10,000 settlement?
UNDER ALABAMA RULE, YES. The "remaining" joint tortfeasor (D2) has 2 choices:
o
o
(1) instruct jury to discount it by that amount, or
(2) choose to not let jury know about it, then have it deducted after damages have been
awarded.
*Side NOTE - There is No rule that says something never comes in.
- Otherwise Discoverable Evidence
Example: P sues M for a car wreck. M says there was nothing I could do to prevent the accident. P
can send a request for production of records for repairs (which is discoverable information). If M
hasn't produced the records, and we subsequently enter into "compromise negotiations", and M
presents the brake records offering $X to settle and a settlement is not reached, and P wants to offer
those records in court, and M tries to "cloak" or shield the records by invoking "compromise
negotiation rule, the objection will be overruled. One can't shield the documents in this instance.
Rule - Evidence that is otherwise discoverable - is still admissible even if presented
in compromise negotiations. (Can’t cloak it in compromise negotiations, b/c P was
entitled to that evidence procedurally for discovery purposes)
- Ala rule is the same under SRM and Otherwise discoverable evidence.
- Last note on compromise negotiations: Fed rule 408 was amended a few years
ago, and it clarified some things and resolved inconsistencies.
1) The issue on "bias" example; prior inconsistent statement for
impeachments-- but what if in compromise negotiations you say one thing
and in trial say something different. FED RULES say you cannot impeach
someone by statements made in compromise negotiations. This has not been
clarified yet.
2) Federal rule drafter dealt with the following issue: the IRS catches K
for not paying taxes in 20 years, and K tries to "work it out and negotiate
with IRS" and agrees to a settlement. Is the IRS the only problem?
NO. K can be prosecuted criminally for failing to pay taxes. Fed rule 408
states that in this scenario, when a D had a compromise negotiation in the
prior civil IRS case - that compromise can be admissible under the
subsequent criminal case.
Narrow Rule: In Criminal cases, rule 408 does not prohibit stmt's
from compromise negotiations regarding a civil dispute with a
GOV'T AGENCY and the compromise negotiations will be
admitted. (NARROW EXCEPTION)
52
October 2, 2014 Fed. R. Evid. 409 - Offers to Pay Medical and Similar Expenses.
Ex: M is rich guy with tons of money. K and M get in wreck and M says go to hospital and get
"fixed" and M agrees to pay medical expenses. (Purpose of this rule is to promote health and safety)
Rule - evidence that someone paid OR offered to pay
1) Medical
2) Hospital, or
3) Other "similar expenses"
- of an injured person is forbidden for the purpose of proving LIABILITY OF
THE INJURY.
*Inadmissible to prove liability, but could offer it for another purpose.
Analysis under Rule 409:
- 1st, am I dealing with one of the 3 types of expenses.
- 2nd, is it being offered to prove liability
- If I say go to hospital
- If I say go to Wal-Mart and get bandages (similar expense)
- If I say go to dominos and get you a pizza (NO DOESNT APPLY)
- If I offer to pay for "clean up" of a chemical spills for an accident with a chemical
truck (that does NOT apply because it is not involving "medical" purposes.
Ex: M and K get in accident. M says, I am sorry I ran that red light, go to the hospital and I will
take care of your medical expenses. At trial, K wants to offer into evidence that M offered to pay
medical expenses. M objects under rule 409 b/c it is dealing with medical expenses and they can't
be shown to prove liability. If K wants to overcome the objection, K will have to offer it for another
purpose and not for liability. However, if K wants to get the admission of fault of "running the red
light" in, K could sever the admission of fault from the offer by D to pay medical expenses. M's
admission would not be protected in this instance because it can be severed from the inadmissible
offer to pay medical expenses. (If not in compromise negotiations, the oral statements made by D
be severed and admitted)
- However, if M makes an "offer of compromise" in compromise negotiations, the
admission by M is NOT ADMISSIBLE, b/c compromise negotiations protect the
admission of fault. Example: If M says, K I am sorry I ran the red light, can I pay for your
medical expenses in exchange for your promise not to sue me. K says no thank you. If K
wants to introduce this as evidence at trial, M would object as offers of compromise and
offer to pay medical expenses. Result: The admission (M admitting that he ran the red
light) is protected.
- The admission in the compromise is not admissible under ALABAMA or Federal
rule, so the evidence would not come in. Compromise negotiations protect the
admission.
53
Fed. R. Evid. 410 - Plea's, Plea discussion, and Related Statements
- Deals with plea discussions. (Defined: negotiations b/w D and Prosecution where discussions are had and
where offers of compromise are given)
To know:
- Generally, statements made in plea discussions:
The following is generally not admissible against D:
1) Guilty plea that is later withdrawn
2) Plea of nolo contendre (plea of no contest)
3) Statements made in connection with plea discussions that are covered
by Rule 11 of FED R. CRIM PRO.
- U.S. v. Greene - only stmt's made to the prosecuting attorney are excluded. In this case, it doesn't
apply to discussions with the DEA agent or with someone without authority to act for the
prosecution.
VI. LIABILITY INSURANCE
Fed. R. Evid. 411 - Liability Insurance
- Purpose: Rule restricting liability insurance b/c we do not want the jury to make decisions based on who
is insured or who isn't insured. (Want to avoid this prejudice). Thus, we want to limit how liability insurance
comes in.
- Deals with discovery of liability in a civil case. A Plaintiff is entitled to info pertaining to the defendants
liability coverage under civil procedures law. (discoverable)
- Jury selection
- Rule: Evidence that a party has liability insurance is inadmissible to prove that the person acted:
1) Negligently or
2) Otherwise "wrongfully"
- i.e. we have TWO forbidden purposes in this rule. THUS, you must find another purpose. Which
must material, relevant, and must satisfy rule 403.
- COURT may admit this evidence for another purpose SUCH AS proving a witness’s bias or
prejudice or proving agency, ownership or control
- Ex: (See Charter v. Chleborad) - P sues D (doctor) for med-mal and the P calls expert doctor witness, Dr.
Lichter. The D in rebuttal called an attorney as witness, Mr. Alder. Alder said he worked with med- mal
cases and that Dr. Lichter had a bad reputation. (D's witness, Attorney Alder, is attacking P's case in chief
expert testimony, which testifies as to D's negligence.
- Purpose of Attorney Alder as witness for D: when one party calls a witness (e.g. the plaintiff's
expert), then the other party (D), as a proper method of impeachment, will call a rebuttal witness
(attorney Alder) to say that witness (P's expert) is a liar.
51
- Alder’s role as a witness to bash the testimony of the doctor on cross-examination.
- Alder worked for the liability insurance company for the D. (Usually happens when your in trial,
and someone you worked for induced you or something) P wants to introduce that D's rebuttal
witness (Attorney Alder) worked for the insurance company. D objects. P says were not offering
for one of the forbidden purposes above (negligence or other wrongful conduct), we are offering
it to show BIAS, b/c he gets paid by the insurance company. This would be material and relevant
to show "bias" and it would satisfy rule 403.
- Further Examples of rule 405 (b) - character is essential to the claim or defense.
- Control and Ownership:
- (Negligent entrustment cases Rule 405 (b)) –
• P gets hit by D, and P sues D's father for negligent entrustment. D had many DUI's on
her record. Would that evidence come in? Prior Dui's would come in, and
Reputation/opinion would come in as well. At trial, D's father gets on stand and says I'm
not liable for negligent entrustment b/c its not my car. Cross-examination says here's the
"liability insurance policy" with your name on it, and D OBJECTS. P says not showing
insurance for negligence or wrongful conduct it is offered to show CONTROL AND
OWNERSHIP so it comes in. Then the attorney must ask whether it is material, relevance,
and satisfies rule 403. ("Control" is not one of the forbidden purposes of the rule, thus it
would come in)
- LACK of liability insurance inadmissible. Ex: D can NOT take the stand and say, "I don't have liability
insurance." (Not as common)
Side note: Civil Pro - McCarthy is D and receives an interrogatory or request of production asking for the
documents showing Liability insurance. Can D object under rule 411 to produce that? Answer: NO.
 Documents DO NOT have to be admissible to be discoverable.
 Why would this be? For many numerous reasons (i.e. promotes settlement; D has no assets, but they
have a 100,000 liability insurance policy). Thus, if you’re a P lawyer you will ask for production of these
documents in the discovery process so P can negotiate the policy limits of $100,000 and settle the case.
- Voir Doir (VD) Jury selection
- as it pertains to rule 411 liability insurance rule (jury selection) - Lawyer's can ask about liability
insurance in VD. If D's insurance carrier is State Farm, then the lawyers have the right to know if
any of the jury members have state farm insurance.
- For example: If working on a car wreck case with a D who uses State Farm, Lawyers can VD the
jury by asking who has state farm insurance.
Collateral Source Rule
 A Defendant may not offer as evidence to mitigate damages that the plaintiff has been
compensated for.
 1 reason is for
 Subrogation from the insurance company (person is suing to get money back to insurance
company)

VII. PROCEDURES FOR ADMITTING AND EXCLUDING EVIDENCE
52
- 4th Column of the Chart - Crux of procedural aspects of evidence: One can have evidence that satisfies material, relevant,
and 403, BUT that is not the end of the analysis. There are procedural hoops that can dictate that
admissibility of a piece of evidence.
Rule 801




Exceptions
Rule 804 (Unavailable)
Rule 803
Rule 807 (Residual)
PROCEDURAL RULES:
100's:
Fed. R. Evid. 103
 - (Making sure evidentiary issues are preserved for appeal); Failing to preserve: You go through trial,
you lose, and then your client wants to appeal. If you don't preserve it, then your screwed.
 Think about "who's" perspective were looking at:
1) Are you the PROPONENT (offering) of the evidence, OR
2) Are you the one OBJECTING to the evidence (party that wants to exclude evidence)
1.) PROPONENT - General Rule:
 if the judge excludes the evidence, the Proponent must make an OFFER OF PROOF to preserve that
issue for appeal.
Offer of proof - put on the record what you expected the evidence to show.
Proponent: Generally, when the proponent gets an objection and that objection is sustained in favor of the
excluding party, the Proponent must generally make an offer of proof to preserve that issue for appeal to
argue that trial judge committed error.
Proffer: Make an offer of proof to show why that piece of evidence is there to help the appellate court
understand why you were offering the evidence that was just excluded. (e.g. Your Honor, this document
shows that the "fuel system" is not defective)
Apparent from Context - It can "apparent" from the context; e.g. asking eyewitness, "you saw who ran the
red-light correct?" "Yes." This is obviously apparent. It was an EYE WITNESS.
In sum, TELL THE JUDGE what you expected to prove with the evidence. That gives the judge the ability
to determine whether or not he should let the evidence in, and even more importantly on appeal. (Appellate
judges will only get a transcript of the record, and you want it all in the transcript to make out your case on
appeal to ensure that the record has enough detail for the appellate court to determine whether the exclusion
of the evidence at trial was reversible error)
Not a checklist, it is flexible: normally, it will be lawyer’s hearsay statement telling the court why it was
offered. Sometimes you can even exclude the jury and go to an answer and question format in the absence
of the jury and then get it on the record.
 2.) OBJECTING - party that objects to keep the evidence out.
53
 General Rule to preserve on appeal: to preserve an objection for appeal, generally the party must make
a TIMELY AND SPECIFIC OBJECTION.
 Exception: Specificity is not necessarily required if a specific ground is "APPARENT". (However, you
ALWAYS want to make a timely and specific objection to avoid the fall back of the rule)

Objecting party:
o Why would we want objector to be timely and specific? Judicial economy! We want to give
the trial judge the authority to fix it then and there at trial level! Let the lawyers object and get
it done then and there.

By timely and specific objections, lawyers help trial judges avoid error.

TIMELY: Generally, a party must object AS SOON AS IT KNOWS or REASONABLE SHOULD
HAVE KNOWN the ground for the objection. When is that usually going to be? Right after is asked
(i.e. in 3 seconds) -- as soon as that question is asked or evidence is offered, you have to be able to
take the entire rulebook and spot it out. If you don't make the timely objection, then generally it is
waived.
o
Unobjectionable Questions: What if question is asked is quickly and the
answer is immediate without time to speak.
What to do then? MOTION TO STRIKE the evidence.
o
Archibald case: Mother was asked how she knew the child? She answered by saying her 14
year old child fathered her other child. What happens when you have an unobjectionable
question that illicit's an objectionable reply; or if you have previously elicited testimony that
becomes objectionable b/c of subsequent testimony? When the question was asked in this case,
D lawyer didn't know what the answer would be b/c it was an unobjectionable question.
 Rule: Counsel must object whenever the ground of the
objection becomes apparent.

In Archibald, the "questions" were okay, but when the answers (unintentional answers) came out,
it showed that D had a "past uncharged rape case" which would be objectionable b/c it is evidence
of prior crimes. In this case, you seek a motion to strike the evidence.

Documents: if proponent is offering document into evidence, and objector thinks it is objectionable,
then go ahead and object. You must make the objection at the time the evidence is formally offered!
Normally, the proponent will hand the witness the document, and then proponent will say to the
witness, "this is the K you signed correct," asking foundational questions. Proponent counsel then
tells the judge (formal moment) we would like to introduce this. THIS IS WHEN you will need to
make the objection for the document.

SPECIFICIFTY: must be specific OR apparent from the context. Hint: don't rely on the "apparent
from context". ALWAYS be specific and cover your ass. General objections without specificity
will not suffice generally. State your grounds on which the evidence was based so that the court
may intelligently rule on the objection. (See McEwen v. Texas)

McEwen v. Texas - (General Objections and Raising new issues on appeal) Counsel asking wife if
she was fond of playing "bridge". What was the objection? Materialness. D said it was not material,
but gave only a general objection and the grounds stated were that "whatever may be her mode of
amusement could not bear on the extent of her injury." Trial court said this was too general. On
appeal, it was argued that it was prejudicial. Arguing something else on appeal -- cannot do that! If
you’re the objecting party and you didn't argue it at the trial court, you cannot offer it anew at
54
appellate court. (However, there is minor exception to this rule that we will cover later on)
 Making Offers of Proof

Padilla v. State - impeachment of witness case; W says light was green before trial at pre-trial
hearing and at trial says W says the light was red. There was no transcript offered in the questioning
and counsel said that there was no transcript that could be used at trial because there was none taken
at the pretrial hearing. However, there was a tape recording. D tries to impeach with an incomplete
tape. Court sustained objection and didn't allow D to impeach. On appeal, D argues we should have
been allowed to impeach. However, but was nothing in the record for the appellate court to
reference since there was no transcript. Fallback would be that it is apparent from the context.
SUMMARY OF CASE: AT TRIAL, counsel should have made an offer of proof. Here, for
example, D could say that "the tape has witness saying light is green at pre-trial hearing and it is
admissible under Rule 613, which gives the appellate curt the ability to review it." Since there was
not enough on the record, the upper court affirmed the trial courts overruling of the objection.
o
Ex: P, in a civil case had two convictions which could go against his honesty. 1) Theft, 2)
unlawful distribution of controlled substance (For impeachment purposes, D could use this
evidence) P filed motion in limine to keep it out. Judge overruled objection. D, on cross
examination said "I want to cross exam on the theft and unlawful distribution b/c P brought it
up." Judge said no and a side bar was held. Reporter didn't get the side bar on the record. Was
there enough on record? Argue that it is apparent from the context.
 HEARSAY Rule 801
 Is a
 1. Statement
 2. Made by declarant outside the hearing/trial
 3. Offered to prove the truth of the matter asserted

1. A STATEMENT is
o An oral or written assertion or non-verbal conduct if the person intended it as an assertion.
-
Declarant
* Means the person who made the statement
-
Hearsay
* Means a statement that:
- 1. The declarant does not make while testifying at the current or hearing
- 2. A party offers in evident to prove the truth of the matter asserted in the
statement

2. Declarant outside the hearing or trial
o When if the declarant is on the stand testifying to own statement

3. Offered to prove the truth of the matter asserted
o Can get statement in to show the effect on the listener
 Hearsay Rule 801 (d)
 Statements that are not Hearsay
 A statement that meets the following conditions in not hearsay
o
1. A declarant- Witness Prior Statement
55
-
The declarant must
* (1) testifies and
* (2) is subject to cross-examination about a prior statement and the statement:
* A. (3) Witness made a prior consistent statement with the declarant’s testimony
- .
*
B. Rule 801(b) is consistent with the declarant’s testimony and is offered
-
(4) has to be one of the following:
-
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
-
ii. To rehabilitate the declarant credibility as a witness when attacked on another
ground or
*
(5) under penalty of perjury at a
(6) trial hearing or other proceeding or in a deposition
C Rule 801(c)
- Identifies a person as someone the declarant perceived earlier.
 Rule 801(d)
 Statements that are NOT hearsay. A statement that meets the following condition is NOT hearsay
if:
 Rule 801(d)(2) An opposing Party’s Statement (know 4 EXAM Question)
o (Fka admission of a part opponent.)
- The statement is offered against an opposing party and:
* A. was made by the party in an individual or representative capacity;
*
B. (Adoptive admission) is one the party manifested that it adopted or believed to be
true
*
C. made by a person whom the party authorized to make a statement on the subject
(Higher-level people)
*
D. was made by the party’s agent or employee on a matter within the scope of that
relationship and while it existed or (Lower-level employee)
*
E. was made by party’s co-conspirator during and in furtherance of the conspiracy
- 3 Elements of 801(E)
- 1. There must be conspiracy, between the declarant and against whom the
statement is being offered
- 2. The statement must have been made during the course of the conspiracy
- 3. The statements must have been made in furtherance of the conspiracry
- (A conspiracy ends when the primary purpose of the conspiracy either fails or
is achieved )
- Whoever is trying to use Rule 801(2)(E)
- Must prove the elements by a ponderance of evidence.
 Some jurisdictions will admit Silence as an adoption of a statement
 1. An excusatory statement
 2. The party heard and understood the statement
56

3. The party must have been able to respond
 Other Proceedings
 Cross examination is not a part of other proceedings.
 8 major exceptions
 Federal Rule of evidence 803 Declarant unavailability Irrelevant
 1. Under 803(1), a present sense impression is a statement that: (Social Media
often applies under this real)
o
o
1st, describes or explains an event or condition; and
2nd, is made while or immediately after the declarant perceives the event or condition.
o
The reasoning behind 803(1) is that a declarant has less time to fabricate or forget anything if
the statement is made contemporaneously with the event, such that this type of statement is
more reliable.
o
Difference 803(1) and 803(2)
-
-
803(1) describes the even
803(2) relates to the event
Timing is another difference
* 803(1) has to while or immediately after
* 803(2) can be longer afterwards because person can still be under stress and
excitement still.
3rd is the age and maturity of the person
4th is the characteristics of the events
5th the subject matter of the statements
 2. 803(2), applies to excited utterances.
o Under 803(2), an excited utterance is a statement that:
- 1st, relates a startling event or condition; and
- 2nd, is made while the declarant is still under the stress of the excitement caused
by the startling event or condition.
o
Difference 803(1) and 803(2)
-
-
803(1) describes the even
803(2) relates to the event
Timing is another difference
* 803(1) has to while or immediately after
* 803(2) can be longer afterwards because person can still be under stress and
excitement still.
3rd is the age and maturity of the person
4th is the characteristics of the events
5th the subject matter of the statements
57
 3. 803(3), applies to then-existing mental, emotional, or physical conditions.
(usually social media applies under this rule)
o Under 803(3),
- a statement of a then-existing state of mind condition must describe a mental
condition, such as a motive, intent, or plan, or it must describe an emotional or
physical condition, such as a mental feeling, pain, or bodily health.
- DOES NOT include a statement of memory or belief to prove the fact remembered
or believed
* The testimony is admissible for the purpose of showing intent of future
conduct because in such a case, the statement is considered only for thenexisting state of mind. (statements made for future plans are acceptable but
not the companying statements made afterwards.)
* the statement is not admissible to show the reason behind that state of mind.
* unless it relates to the validity or terms of the declarant’s will. (memory or
belief is valid)
- Hillmon doctrine (Not Tested)
* Statement of intent (i.e. state of mind) can be circumstantial evidence to prove
subsequent conduct. If you said intending to do X tomorrow, statement can
be used as circumstantial evidence that you did do X the next day.
- If X's statement of intent to do something with person Y, statement can go to Y's conduct as
-
well as to X's conduct. U.S. v. Phaester (p.281) Larry's statement that he was going to the
parking lot to meet Angelo can be used as circumstantial evidence that it was more likely that
Angelo was in parking lot.\
Critics of this ruling say that X's statement can show intent and probability of X but has no
bearing on Y or his intent or conduct.
NOT CLEAR if need independent corroborative evidence along with statement of intent.
iii. Problems with this part of rule
1) Statement of intent to do X could be used to prove other assumptions and beliefs about
conditions in the world and expected behavior of other people.
2) Statement of intent can include factual assertions.
2. Rule does not include a statement of memory or belief to prove the fact remembered or
believed unless it relates to execution, revocation, identification, or terms of declarant's WILL.
3. Reasons why statements reliable
a. Declarant best source of info.
b. Statement has virtue of immediacy
c. Risk of misperception and faulty memory is small
*
 4. 803(4), applies to statements made for medical diagnosis or treatment.
o
Under 803(4), such a statement must be:
- 1st, made for and reasonably pertinent to medical diagnosis or treatment; and
- 2nd, must describe medical history or past or present symptoms and sensations, including
58
o
o
o
o
their inception or general cause.
Rule is broad enough to included other people besides the patient (Who is declarant)
Audience is usually part of the medical team. (doctor, nurse, ems)
Medical diagnosis OR treatment, note OR. Patient may seek doctor for diagnosis but not for
treatment. (cross-examination would try to basis)
Cause vs. Fault. General rule, this exception will cover to the cause of the medical diagnosis
or treatment but not to the fault of the person that causes it.
* Exception
- Who is at fault if it is reasonably pertinent to the treatment and medical
diagnosis.
- Ex. Daughter raped by father.
 5. 803(5), applies to past recorded recollections.
o
Under 803(5), a past recorded recollection is a record that:
-

This type of record must meet several requirements to fall under 803(6);
-
1. first, the record must be made by someone with knowledge or with information
transmitted by someone with knowledge, at or near the time of the activity;
-
2. second, the record must be kept in the course of regularly conducted activity of a
business, organization, occupation, or calling, whether for profit or not for profit; and
-
3. third, the act of making the record must have been a regular practice.
-
Furthermore, a qualified witness, such as the creator or the custodian of the record, must
testify that the record meets these requirements, and neither the source of information nor
the method or circumstances of preparation may indicate a lack of trustworthiness.
7. 803(7), specifies that the absence of business records may also be admissible,
o

The declarant must testify as a witness at the present trial to establish that the record meets
these requirements. If admitted, the past recorded recollection may be read into evidence;
however, it may not be admitted as an exhibit unless offered by an adverse party.
6. Under 803(6), a record of regularly conducted activity may be a record of an act, event, condition,
opinion, or diagnosis.
o

1. is regarding a matter that the witness once knew about but can no longer recall well
enough to testify fully and accurately;
2. was made or adopted by the witness while the matter was still fresh in the witness’s
memory; and,
3. accurately reflects the witness’s knowledge.
if offered to prove that a matter did not occur or exist.
8. Under 803(8), a record or statement made by a public office must fall into one of three categories.
o
- 1. First, a public record or statement may address the public office’s activities; for
example, court transcripts of trials, or treasury records of receipts and disbursements.
59
-
2. Second, a public record or statement may address a matter observed by a public official
while under a legal duty to report the matter.
*
For instance, if Child Protective Services investigates a report of child abuse, any
records or statements addressing the matter may be admissible under 803(8).
However, if Child Protective Services records a matter that it does not have a legal
duty to report, such as animal cruelty or violations of fire code, then such records
would not be admissible under 803(8). Furthermore, in criminal cases, any matters
observed by law-enforcement personnel may not be admissible under 803(8), even
though law enforcement may have been under a legal duty to report the matter.
 Hearsay statements:
 Offer of proof can be a lawyers hearsay statement, OR counsel could request a question and answer
format, OR a convo outside of jury with judge with the court reporter present to record the
statements.

3 types of error:
o
1. Harmless error –
error objected to at trial but on appeal it was found not to have had affected a substantial
right of the party. Ex: D on trial for "cracking open vaults" and robbing banks. Prosecution
offers evidence of D's 4 prior bank robberies where vaults were robbed, to show that D
had knowledge on how to crack open vaults. Suppose it turns out that at one of those four
bank robberies, the vault was already open which would lessen his knowledge. However
there are 3 in which D cracked open vaults to establish knowledge so it would be harmless
error.
- Factors:
*
*
*
1) Was evidence cumulative - plenty other evidence (i.e. the 3 other times of cracking
open safes;
2) Did counsel rely on this piece of evidence in argument;
3) Could that evidence been proper for another purpose. *Here the significant amount
of times, it was error, but there is overwhelming other evidence on this issue, so it
was harmless.
o
2. Reversible error
- i.e. prejudicial error: Error that is raised at trial and it HAS affected a substantial right
of the party. Ex: the trial ct excluded D's fire expert and wouldn’t allow him to testify.
Fire expert was going to testify to "causation" and offer another cause to how it happened
to defeat P's claim. In closing statement, P said the D didn’t give you indication that there
was another way the fire could have started in the car. (But the D wanted to introduce fire
expert as to causation to show that there was error). If P seeks to avoid reversible error it
could be unlikely b/c P said that D didn't show another cause. What to do in this instance?
D would use one of the mechanisms such as "being outside of jury" to get it on the record
that the fire expert would have testified to the CAUSE, and the appellate ct would have
had this on the record to possibly reverse the trial courts ruling.
o
3. Plain error
- Rule 103(d); error that is NOT preserved at trial, But is so egregious that the appellate
court will correct it. (i.e. So terrible that upper ct will forgive counsel for not raising it at
trial) Test:
*
(1) there must be error,
60
*
*
(2) must be CLEAR and OBVIOUS error,
(3) must affect a substantial right.
-
Not very common. Ex: same case above - judge says im not going to let any P's experts
to testify, and P says ok.
-
Rule 103 subsequent issue on appeal - trial judge will admit evidence that should be
admitted but admit it for the wrong reason or the trial court excludes it but for the wrong
reason.
-
Ex: P's expert on stand and not an expert on autos. P lawyer asks expert, "was there a
defect?" D objects saying witness is not a qualified expert. Judge didn't allow him to testify
b/c it was going to the ultimate issue. The correct issue is that the witness was not
qualified. What happens on appeal? (Think rule 404 (b); judge admits prior act to show
knowledge, but judge should have been under intent element). RULE: Appellate court can
uphold an evidentiary decision on ANY THEORY that finds support in the record. Ex:
TRIAL ct let hearsay in to evidence b/c it satisfied rule, but the appellate ct said another
rule. The evidence would have came in anyway. Trial court can be affirmed on a different
theory.
-
One minor exception:
*
if the objectionable evidence would have been treated differently at trial if offered
under a different theory. Ex: Character evidence generally inadmissible what if trial
court let in character evidence for conformity. Appellate court decides that the
evidence would have been treated differently.




Final points on this topic –
o ex: witness (w) on stand and counsel would like to talk to W a/b relationship with JS.
Opposing counsel Objects saying that the relationship with JS is irrelevant. Ct overrules.
(Assume that the counsel has to continue objecting to this relationship aspect over and over
and over) Continuing objections: this is what you could do when you have to continuously
object, and object, and object. Ask judge for continuing objection for any questions that are
pertaining to relationship with JS.
o
To preserve this issue and how it helps:
-
rule - a continuing objection, if requested and granted, will preserve error with regard to
SIMILAR questions and offers of evidence as long as it is SPECIFIC and Unambiguous
(i.e. clear). IF JUDGE GRANTS, you are preserved. If not granted, you have to stand up
and object every time. If relationship pertaining to a different individual, then it would not
satisfy the specifics portion of the rule.
 Motions in limine - pre trial motion filed before the trial and before the trial starts. Asking the ct to
exclude or admit evidence.
Reason for the motion: so you can get a handle of what you’re working with at trial. Ex: Suing
Toyota for defective seatbelt. During trial you want to offer 5 other defects. Before trial, you would
like to know if you can get these people in there at trial to testify as to the 5 other defects. Thus, the
motion prepares the parties for trial. It is common for the ct to rule on them or sometimes they
61
would rather wait to see how it turns out.
Adverse pre trial motion: What happens if you get a pretrial MIL ruling, and it is adverse to your
case. At trial, do you have to do anything to preserve the issue on appeal? YES. Generally, you
have to re raise that issue at trial. Ex: P filed MIL telling the judge that P knows these 5 other similar
accidents and P would like to get a pre-trial ruling as to whether or not he can use the 5 other
witnesses at trial to testify to the defects. The judge overrules P's request. AT THAT POINT, before
trial, the MIL has NOT BEEN PRESERVED for appeal. At trial, what must you do? MAKE AN
OFFER OF PROOF regarding other accidents to show defect b/c it was under same or similar
circumstances. The logic behind this rule is that a MIL is a provisional ruling b/c judge could
change his mind at trial, so that is why you have to bring it back up in trial to preserve it.
 Exceptions to Motion in Limine:
 FEDERAL court: if a motion in limine ruling is DEFINITIVE, it does not need to be renewed at trial to
be preserved for appeal. Definitive - asking the judge at pre trial ruling, "are you sure I do not have to
raise it at trial." However, a good rule of thumb is that you should renew it trial to save your ass.
 Alabama: a party is not required to renew objection or make an offer of proof at trial if the court gives
EXPRESS ACQUIESENCE on the record that it is not necessary to renew that issue at trial. Most
practicing lawyers do not rely on this and they will re raise it at trial. EX: Counsel asks Judge, "do I have
your EXPRESS ACQUIESENCE that I do not have to re raise it at trial." However, still raise it a trial
just in case.

Ex: Counsel appeals the judges ruling on prior convictions when p offered them into evidence first.
RULE: a party who introduces evidence cannot complain on appeal that it was
wrongfully/erroneously admitted.
• Depositions - do you have to object at depositions to preserve error for appeal? Rule: GENERAL objections to questions that can be cured at a deposition are waived unless they are made at the
deposition. If it is something that can be cured at depositions, you must make the objection at the
deposition. Ex: Lawyer is asking 20 question to quickly. (If there is a problem with the FORM of the
question, that must be made (objection) at deposition or it is waived. If lawyer on other side ask a
compound question, then it should be cured at deposition as well.
Rule 804 Exceptions when declarant unavailable
 Rule 804(a)
 Criteria for being Unavailable. A declarant is considered to be unavailable as a witness if the declarant:
 (1) is exempt from testifying about the subject matter of the declarant’s statement because the court
rules that a privilege applies
o This can include constitutional privileges, such as the 5th Amendment’s right against selfincrimination, or evidentiary privileges, such as attorney-client privilege.




(2) refuses to testify about the subject matter despite a court order to do so;
(3) testifies to not remembering the subject matter
(4) cannot be present or testify at the trial or hearing bc of death or a ten-existing infirmity,
physical illness, or mental illness or
(5) is absent from the trial or hearing and the statements proponent has not been able by process or
other reasonable means to procure:
o
o
A. the declarants attendance in the case of a hearsay exception under Rule 804(b)(1) or (6) or
B. The declarant
62
 Exceptions to Rule 804(b)
 (b): Exception:
o
Rule 804(b) lists the following five hearsay exceptions:
-
o
1. former testimony,
2. dying declaration,
3. statement against interest,
4. statement of personal or family history, and
5. forfeiture by wrongdoing.
The following are not excluded by the rule against hearsay if the declarant is unavailable as a
witness:
o 804(b)(1). Former Testimony:
-
Testimony that a hearsay statement must meet two requirements in order to fall under the
exception for former testimony
-
1. A. Was given as a witness at a trial, hearing, or lawful deposition, whether given during
the current proceeding or a different one and
-
2. B. is now offered against a party who had (or in a civil case), whose predecessor in
interest had, an opportunity and similar motive to develop it by direct, cross or redirect
examination.
o 2. 804(b)(2) Dying Declarations (Will be on EXAM)
-
Considered more reliable than out of court statements. Justified bc people think dying
people have less incitive when they die.
a hearsay statement must meet 4 four requirements in order to fall under the exception for
dying declarations:
4 Requirements
* 1. Witness must be unavailable.
- Declarant doesn’t have to die. Does account for miraculous recovery.
* 2. the statement must be offered in a prosecution for homicide only or in any civil
case;
* 3. the declarant must have been under the belief that his or her own death was
imminent; and
- Witness believe death is coming soon or is certain. (ex. A few hours)
- Factors
- A.1. The condition of the declarant is highly relevant to the analysis.
- B. 2. Courts consider what the declarant say other than the dying statement.
- C. 3. What did other people around the declarant say.
*
4. the statement must be about the cause or circumstances of the declarant’s
imminent death.
o 3. 804(b)(3) Statements Must be so Against the Declarant’s Interest
-
(A)a hearsay statement must be so against the declarant’s interest at the time that a
reasonable person in that position would have made the statement only if he or she
believed it to be true. Such a statement may be contrary to the declarant’s property or
financial interest, tend to invalidate the declarant’s claim against someone else, or tend to
63
-


expose the declarant to civil or criminal liability.
(Reasonable people don’t make statements against themselves)
* Elements
- 1. Must be unavailable
- 2. Statement must be made against the interest of the declarant at the time the
statement was made.
- 3. Statement has to made in regards to a certain subject matter
- 1. Proprietary or pecuniary interest
- 2. Would expose the declarant to a civil or criminal liability
- 3. Statement would render invalid the declarant has against someone else.
- 4. Any statement that exposes the declarant to criminal liability is admissible
only when corroborating circumstance clearly indicate the statements trust
worthiness.
-
Factors of 4th Element
-
Did the declarant make that statement to other people?
Who did the declarant tell this too?
Timing and circumstances of the statement
(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 declarants to criminal
liability.
Opposing party statement rule
o Differences
- 1. Only applies to statements of opposing party
- 2. Opposing statement does not require unavailability
- 3. Any statement made can be offered against opposing party
o
4. 804(b)(4)
- a hearsay statement may address either the declarant’s own personal or family history,
even if the declarant had no way to acquire personal knowledge about the information, or
another person’s personal or family history, if the declarant is related to or associated with
the person or the person’s family, such that the stated information is likely to be accurate.
- Personal or family history can include facts regarding birth, adoption, legitimacy,
ancestry, marriage, divorce, or any other relationship by blood, adoption, or marriage.
o
5. 804(b)(6) Statement Offered Against a Party That Wrongfully Caused the Declarant’s
Unavailability
- a hearsay statement may be admissible if it is offered against a party that wrongfully
caused the declarant’s unavailability with the intention of preventing the declarant from
testifying as a witness at trial.
- The wrongdoing does not have to be a criminal act.
- This exception provides that a party forfeits the right to object to hearsay if that party
commits wrongdoing. this exception attempts to protect witnesses from intimidation or
other harm.
- Must prove that defendant made the witness unavailable by preponderance of evidence
* Elements (All elements must be meet)
- 1. Witness must be unavailable
- 3. The party engaged in/or acquiesce wrongdoing (Doesn’t have to be a
criminal act)
64
-
-
4. The wrongdoing caused the declarants unavailability
5. The party intended to do the wrongdoing to cause the declarant unavailable
If elements are meet, party forfeits rights to object to hearsay, and also forfeits his right to
the confrontation clause.
Confrontation Clause
* The provision of the Sixth Amendment to the United States Constitution that
guarantees a criminal defendant the right to confront the witnesses against him and
conduct a reasonable cross-examination.
Starting with Rule 803(1)
Read through U.S. Baker.
 Rule 807. This rule is considered a residual or “catch-all” exception
 may admit hearsay statements even if they are neither redefined as non-hearsay by Rule 801(d) nor
specifically addressed by one of the hearsay exceptions in Rules 803 and 804. Created by
combining and transferring the contents of 803(24) and 804(b)(5), Rule 807 may apply regardless
of whether the declarant is available or unavailable to testify.
 Rule 807 provides that a hearsay statement is not excluded by the rule against hearsay if it meets
four requirements:
o 1. first, the statement must have equivalent circumstantial guarantees of trustworthiness as
those found in the other hearsay exceptions;
o 2. second, the statement must be offered as evidence of a material fact;
o 3. third, the statement must be more probative than any other evidence that the offering party
can obtain through reasonable efforts; and
o 4 fourth, the statement’s admission will best serve the purposes of the Federal Rules of
Evidence and the interests of justice.
- Rule 807 also requires the offering party to give the adverse party reasonable notice
before the trial or hearing.
Fed. R. Evid. 104 - Preliminary Rulings (by the judge)
- During any trial, a judge is going to make numerous preliminary rulings on decisions on whether or not
to admit evidence. Sometimes admissibility depends on a question of law or question of fact that needs to
be established before trial.
Ex: (law or policy questions) Theft can be used to impeach b/c it is crime of dishonesty or false statement.
Who decides if something is dishonest? JUDGE would make this ruling.
Ex: (compromise negotiations) - Who makes decision on compromise negotiations? Judge.
-Privileges - judge needs to make a preliminary decision.
RULE: juries DO NOT determine questions of law.
-- A lot evidence will deal with CONTESTED FACTS. Ex: sexual assaults and evidence of prior sex acts.
Ex: D says it was consensual. Would it come in? NO. But if it wasn't contested it would come in. THIS IS
SOMETHINGING to be determined preliminarily.
Ex: (Subsequent Remedial Measures) - Ex: Was repair done after or before injury? Would judge determine
this? Yes.
- Prelim decision made solely by judge: if there is a policy decision or question of law, the judge will
65
determine it. If it passes that threshold, then it is sent to the jury. If judge decides they weren’t in
compromise negotiations, or it wasn’t a subsequent remedial measure SRM, then he will not send it to the
jury.
66
- When does the jury make the call 1st without a preliminary ruling. EX: D on trial for sex assault. P wants
to offer prior sex assault. Dispute over whether the prior act was consensual. If that prior sex encounter was
consensual, does that evidence come in? Yes. Nonconsensual? Yes.
TEST: When there is a factual question on a dispute, first the judge looks at the issue after hearing
both parties arguments. Then the judge applies this test:
- Whether enough evidence exists that a reasonable jury could resolve the factual dispute
in a manner that makes the evidence admissible. (Often referred to as conditional
relevancy; Conditioned on the proof of some other fact)
- Whether that prior act is admissible depends on whether it was consensual.
Rule 104(b)
Conditional Relevancy- relevancy of evidence is conditioned on some other fact.
Ex: robbery and the robbers tell everyone to lie face down and rob bank. Woman peaks up to take
a look at the robbers. Woman, now a witness, says she saw the main robber and identifies him as a
man named Butch. She identifies him in a line up and they prosecute Butch. Butch filed a MIL to
exclude the woman's testimony in that she has poor eyesight and it is not reliable. Is this a factual
dispute? Test: Whether to let it in, "is there enough evidence where a jury could believe that this
woman could see him."
- If she did not see butch, would her testimony have any relevance? NO. But if she could,
then it would be relevant. Main question to ask yourself: IS THERE ENOUGH evidence?
Under these circumstances, yes. It will go to trial and it will be left up to the jury to
determine whether she could see the robber.
Ex: Huddleston case; D on trial for selling stolen videotapes. D said he didn’t know they were
stolen. Prosecution wants to offer evidence to the fact that D sold stolen TV's in the past. D then
objects as to character evidence and says it is improper. Prosecution says we are offering to show
knowledge (i.e. another purpose) that he stole things in the past. Does the judge let it in under rule
104? Would this prior evidence have any relevance if they weren’t stolen? No. The judge would
hold a mini side bar as to whether there is enough evidence to where a jury could decide the issue.
Ex: Rule 412; past sexual behavior - generally in a rape case, it makes it hard to get a victims past
sex acts into trial. Exceptions: alternative source of injury, prior sex encounters with D to prove
consent. Issue: Should judge just automatically let it all in? No. JUDGE will hold a mini hearing to
determine whether there is enough evidence where a jury could believe that they have had sexual
relations in the past to show consent. (Side note - the bar is low and judge will typically balance
the admissibility with the seriousness of the case)
Rule 104 (a) – Judges sole discretion
- Decided SOLELY by the court. Law or policy concern will allow the evidence in. Ex: Subsequent
Remedial Measures. If accident occurred on JAN 1st, and P claims a remedial measure was made
on December 31. D says SRM was made on Jan 2. One injury is subsequent and one is not
subsequent to injury. THUS, there is a dispute and the critical issue of policy of SRM's is left up to
judge to determine when the SRM was made in order to determine admissibility.
67
Compromise Negotiations - generally a jury does not know what compromise negotiations are.
Only judge and lawyers know this rule and the policy rules for invoking it. Rule 104 (a) will be in
force in this instance.
- In preliminary decisions, the judge is NOT BOUND by rules of evidence, except for privileges.
- LOTS OF ISSUES need to be decided in advance of the trial and they will fall under rule 104.
- NOTE- if question pertains to Compromise Negotiations, SRM, or an area of law or policy, then
ask the judge for a preliminary hearing on the topic.
Fed R. Evid. 105 - Limited Admissibility
- Sometimes evidence can be admissible for one purpose but not to another or admissible to one
party and not to the other.
- Purpose of rule: when evidence is admissible on a limited basis, then a party upon request can
receive a jury instruction that restricts the evidence to it proper use. Ex: D has prior bad acts being
offered to prove knowledge. Jury instruction is given to say that the prior acts cannot be used to
determine that D committed the crime in question, but you can use it to show “knowledge” that he
can crack open safes.
- Relationship of rule 105 to rule 403 - when court is forming an analysis under rule 403, there is
two criteria the court will look to,
• (1) how effective would a rule 105 limiting jury instruction be, OR
• (2) less prejudicial way to offer the evidence.
- If you want a limiting jury instruction, the court has to give it to you. The court SHALL give it
to you B/C the rules require them to do so. (Thus, the judge is prohibited from saying no to your
limiting jury instruction in this instance, such as offering it for another purpose)
- Other Issues under rule 105 - timing of the instruction. If evidence comes in for a limited purpose,
the question arises as to whether you are entitled to it when the evidence comes in or at the end of
trial when the jury is charged.
• Rule of thumb: You can ask to have it introduced when it is offered. The judge then has
the discretion to determine whether or not to do give JI then or at the end or perhaps both.
Sometimes, you do not want a limiting instruction b/c it may reinforce something that
hurts your case.
Fed. R. Evid. 106 - (Rule of Completeness)
United States v. Sweiss
- M poses as a "co-conspirator" for the investigation of D (owner of a grocery store). M acting who as a
secret co conspirator is wearing a wire recording device to record incriminating statements made by D in
regards to burning down a competition grocery store. There were two times recordings were done
between M and D.
- Prosecution offered one of the recordings, but D wanted to introduce the other recording.
68
- Court held under rule 106 that the D did not meet the foundation requirements under rule 106.
- Rule 106 is when a party wants to introduce part of something and the other party wants to introduce the
remainder.
69
Rule 106; WRITINGS and RECORDED statements; the rule states the following:
"When a writing or recorded statement OR part of a writing or recorded statement is introduced
by a party then an adverse party can obtain admission of the entire writing or recorded statement,
OR any other writing or recorded statements that in fairness should also be admitted."
Purpose: if there is a missing part that is necessary to tell the story it should also be admitted.
- Alabama Rule DIFFERENCE: Under federal rule, a party can introduce a "separate" writing or
separate statement; Alabama does not allow separate writing or separate recording statements.
-Alabama Rule - if a party introduces part of a writing or recorded statement, the adverse party
can secure the admission of the REMAINDER of the same writing or recorded statement. Ex:
(My Cousin Vinnie and famous line in that movie when the D said, "I shot the clerk." At trial, M
is Def and prosecution wants to introduce part of an email thread, and the only part they introduce
is "I shot the clerk." What if, the part of the email that was not admitted was that of the famous
line from my cousin vinnie (someone sent D an email asking him what that famous line is in my
cousin vinnie, and D responds saying I shot the clerk). P obviously wants to offer only the "I shot
the clerk" to help its case.
-M can get the admission of the question that was in the email thread admitted under the rule.
- HOWEVER, back in time before email was invented, say D responded by a "separate"
letter saying "I shot the clerk" with nothing else, what would happen to the admissibility
of the other letter asking the question about the famous line? In federal court, D could
admit the separate letter asking D about the famous line to my cousin vinnie. In Alabama,
this would be a separate document, this not admissible under rule 106, so you would have
to find ANOTHER PURPOSE to get the other letter in.
- Primarily effects timing; Normally in a trial, prosecution puts case on first, D goes 2nd. Rule 106, is
primarily the timing; if the D is trying to admit something out of context, and you can make them stop
and admit the remainder right then. Ex: Joe on stand, prosecution says read this email, "Dear Joe, I shot
the clerk." D says I object, rule 106, I want to admit the letter I was responding to asking D the famous
line in my cousin vinnie. Under Ala, you would have to find another purpose. Under federal rule, it
would be allowed.
- ELEMENTS TO RULE 106: (NARROW)
-When you can secure the remainder in Alabama, or in federal court of separate writing or recorded
statement?
- The remainder of the writing or recorded statement is only necessary under one of the
following four:
(1) Necessary to explain the admitted portion
(2) Place the admitted portion in context
(3) Avoid misleading the trier of fact, OR
(4) To ensure a fair and impartial understanding.
* Basically, all four have the same basis
70
- Under Sweiss, the court did not find any of these four requirements. The adverse party
carries the burden of showing that one of the 4 things is present when trying to introduce the
other part of the evidence under rule 106.
- Common issue under rule 106: Writing or recorded statement, and the party introduces part
of it against D, then D wants to introduce the remainder. D persuaded judge that it meets one
of the 4 requirements, and then P says no it contains improper character evidence or that the
other part is hearsay, etc. In majority of courts, you cannot admit part of document that is out
of context, and then argue that the committed part contains hearsay or some other
improper use. If you meet one of 4 requirements, it basically trumps the other rules of
evidence.
- This is fair because, if you have a misleading document, the offering party should not be
able to keep one part out that might be hurtful to their case. Offering party put this in
issue, so the offeror bears the risk by the introduction of the other parts. (Determining
whether to offer evidence can be challenging if there could be potential other parts of a
doc or recorded statement that has adverse consequences when D seeks to offer the
"hurtful" remainder.
- PRIMARILY about TIMING. Generally, this is the only rule of evidence that says, if you
meet the elements, you can interrupt the other party by introducing a document that is out of
context.
- Rule 32 of the rule of civil procedure dealing with depositions at trial, also references a rule
of completeness, which states that if you admit part of deposition in the trial, then the
remainder of the deposition can be admitted if it is necessary to tell the story.
- Rule 106 is an illustration of a much broader concept, which we discussed in "materiality."
- Materiality can be based on "substantive law", or in this instance "opening the door"
- Rule 106 makes this concept clear under materiality, which is one type of way
of entering evidence by the offering party opening the door-- BROADER
CONCEPT: if M goes into something impermissibly, the other side has the right
to fight back and reply in kind. Ex: at the outset of any lawsuit or any criminal
prosecution, the character of D at the outset is generally not at issue, unless the D
opens the door, thus if the D says "I have never been in trouble with the law"-this is when the other party can fight back.
200's:
Fed. R. Evid. 201 - Judicial Notice (substitute for evidence)
Ex: Should D have to call witnesses to say that Barack Obama is the President of the United States? No.
Philosophy behind the rule: some things are so well known and accepted that it is unnecessary to put on
formal proof.
 This is way to "short circuit" the case to speed it up
 Basically, judicial notice is the process where the trier of fact accepts certain facts as true
without the necessity of formal proof. (Substitute for evidence)
 Judicial notice can be broken down into 7 categories:
71
(1) Adjudicative facts (rule 201 applied to AF only);
(i) who what where when how - it is the facts that help one prove the elements of the case. Ex: car
wreck, "who ran the red light" is an adjudicate fact. (RULE 201 does not apply to legislative
facts- ex: a legislative fact is what we base our rules of law on; in the US we believe that
segregated schools are not equal. The patriot act was passed to fight terrorism. These would be
legislative facts)
(2) TWO-part test:
(i) 1. The fact must be not subject to reasonable dispute
(a) (Barack Obama is not subject to reasonable dispute as currently being the president of
US); Ex: the KKK of having a violent reputation is not in reasonable dispute; old people
like to pay bingo.
(ii) Meet one of the following criteria:
(a)
•
Adjudicate Fact generally known within the courts jurisdiction,
(ex: in Alabama state court or federal court, is it generally known that B'ham
is north of mobile. Would a court in Oklahoma knows this? Maybe not.
OR
(b)
Capable of accurate and ready determination from consulting RELIABLE
sources.
• Ex: name of national anthem of France could be accurate and ready
determination by reliable resources in a quick manner. Ex: How many feet are
in a mile may not be generally known, but could be found out be ready
resources that are reliable. Another example: the boiling point of water. (The
court only has to determine that they are reliable; the reliable resources do not
have to be admissible into evidence.
(3) Discretionary;
(i) if it hasn’t been asked by a party, a court may take judicial notice of something whether
requested to do so or not.
(4) Mandatory;
(i) a court shall or must take judicial notice if requested by the party and supplied with the required
information. (The court will have no discretion in this instance; they MUST take judicial notice.
(5) Opportunity to be heard;
(i) if the other side asks the court to take judicial notice of something, the opposing party has the
right to be heard, and court must hear the argument. (ex: counsel says, "Judge, the authority he
provided you is not reliable").
(6) TIME of taking judicial notice;
(i) judicial notice may be taken at ANY STAGE in the proceeding. It can be done at trial, on
post judgment motion, the appellate court...
(7) Jury instruction;
(i) how is the jury instructed on this? Difference b/w civil and criminal
- Civil: the judge instructs the jury to accept as conclusive any judicially noticed fact. (ex:
ladies and gentlemen of the jury, the court is taking judicial notice that B'ham is north of
mobile and you must accept it as conclusive.
72
- Criminal: judge instructs jury that they MAY accept a judicially noticed fact as conclusive.
(ex: the court is taking judicial notice that B'ham is north of Mobile, you may accept this as
conclusive.
 Taking judicial notice of judicial and agency decisions:

example - M is in a lawsuit and there has been another lawsuit where there is a final judgment that
is relevant to M's lawsuit. Can the court take judicial notice in M's claim?

Generally, YES. THERE IS A HUGE CAVIAT -- a court can take judicial notice of judicial or
agency records but not to the facts underlying the decision. (ex: res judicata/collateral estoppel;
hows the fact there is a judgment on a particular lawsuit) Courts can take notice of the judicial
existence (lawsuit 1 same allegations as lawsuit 2, can't do it again under res judicata, so here is
the record of the trial saying that he already won) and the outcome, but not the truth of the facts
that are litigated within.
VIII.
WITNESSES

NOTE - WITNESSES fall under 3RD COLUMN RULES: (where the bulk of evidence happens)
50 % of the bar exam covers this material.
 3 broad categories under this rule:
(1) Competency
• - covers Rule 601- through 606;
(2) Impeachment
• - very important part of witness rules;
(3) Mode and order of interrogation of witnesses
• - covers stuff such as leading questions and when you can ask them, and the
scope of cross examination.
(1) COMPETENCY:
 History prior to adoption of the rules: statutes existed not allowing certain people to testify such
as people that were married, believe in certain religion, etc. which are all now abolished. The modern
trend has been to let people take the stand and tell their stories, because perjury can be had on crossexamination. Goes more to weight and credibility now.
 RULE 601: Competency to Testify in General

"all witnesses are competent except as provided in these rules".


(There is not a rule that says someone cannot take the stand; thus, the new rule abrogates the prior
statutes which said certain people are incompetent to testify;
federal advisory opinion says “it’s difficult to imagine a person that is not able to testify which
influences broad reaching to allow people to take the stand.”

Dead man's statutes:
o
ex: of historical dead mans statutes - a witness cannot testify as to conversations Witness
had with decedent (someone that is now deceased).
73
o
Rationale: the deceased person is not alive to corroborate it and defend against it if need be.
o
- BIG ISSUE:
o
Did Rule 601 abrogate the dead man's statutes?
-
Yes. ALA S. CT abrogated the dead man statute in a long opinion. Reason we study it?
*
1) There are certain states which recognize another "exception" applying the dead
mans statute
- (states can keep it in there rules, but the fed rules do not have it.)
*
o
2) the federal rules of evidence apply in federal court.
- If diversity case, state substantive law applies, thus under rule 601, under a
diversity action, and your determining the competency of a witness, you fall
under the state rules of evidence.
- Ex: case in Alabama in fed court, and the law of Kentucky applies, and KY
recognizes dead man statute. Kentucky's dead man statute would apply. BUT
MOST STATES have done away with it.
United States v. Odum
-
Issue: whether feeble elderly people were competent to testify? Under historical statutes,
they probably could not testify, but under the modern trend, the witness can testify.
Judge will look to whether the W has a bare minimum of credibility to testify.
-
Judges role:
*
if witnesses' competency is in question, such as an elderly or small child,
trial judges will do a preliminary hearing or side bar to look for 4 things:
• 1. Does Witness have competency to observe claim,
• 2. Ability to remember it,
• 3. Do they have ability to Relate it by minimum to apply it educationally,
• 4. Witness have ability to understands Oath/affirmation?
 In Odum case, as long as you met the 4 criteria, you would be ok.


- "Except as provided under these rules"
o
1. (person must have personal knowledge;
o
2. if capacity is so diminished by being so young or feeble, they do not have basic knowledge,
or
o
3. if Witness does not have the ability to understand the oath, then judge can deem them
incapable of testifying)
Capps v. Commonwealth \
74
o

- children can testify if they meet the 4 abilities, then it doesn’t matter how young. Once
deemed competent to testify by the sound discretion of the trial judge, it is the JURY'S
prerogative to WEIGH the testimony of the child.
BOTTOM LINE:
o The statutory grounds of incompetency are abolished, all witnesses are competent to testify,
except as otherwise provided in these rules (4 GROUNDS), BUT those four ground of
incompetency go to the weight of the testimony, not the admissibility.
-
Extrinsic Evidence
*
Extrinsic evidence means evidence that would be inadmissible under the common
law parole evidence rule or a similar doctrine because the evidence is not contained
in the governing instrument to which it relates.
 IMPEACHMENT (Intro; remainder covered in Spring Semester)
 Purpose:
 Trying to tear down credibility of witness, usually on cross-examination
 Impeachment is a Critical and powerful aspect of trial lawyering
 Numerous ways to impeach a witness (Mainly we will focus on 5 ways)
 Rule 404(a)(3)
-
(a) Character Evidence
-
(1) Prohibited use: 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.
-
(3) Exception for a Witness (Exception)
-
Evidence of a witness’ character may be admitted under Rules 607, 608,
and 609
 Impeachment

Any party may impeach the credibility of any witness with evidence suggesting that the
witness’s direct testimony is unworthy of belief. A witness's testimony may be unreliable
for three quite different reasons:

1 a) The witness may be deliberately lying and therefore knowingly committing the crime
of perjury -- it happens, but people willing to commit crimes in front of judges are rare.
75

2 b) More likely, the witness is trying to tell the truth, but happens to be mistaken because
he or she saw the event incorrectly, has forgotten parts, misinterpreted what the witness
saw, etc.

3. c) The witness may be telling half-truths, exaggerating parts, or omitting details out of
embarrassment, love, anger, political beliefs, or other emotions.

Impeachment does not consist of asking the witness directly to admit to being a coldblooded liar or to admit that the witness has remembered something incorrectly. The liar
will not admit being a liar, and the honest but mistaken witness will not know s/he is
mistaken, so neither will admit to being wrong if asked. Impeachment is the process of
introducing circumstantial evidence that suggests to the jury a likelihood that the witness
does not understand the need to tell the truth, is mistaken, is incomplete, or is lying.
Impeachment evidence is subject to the basic principles of relevance, and may be excluded
if its probative value on the issue of credibility is substantially outweighed by its
prejudicial effect.
 Any party may impeach any witness by attacking the credibility of that witness.

Under the Webster case, however, a party may not call a witness solely to impeach that
witness.

A witness may be impeached during cross-examination or through extrinsic evidence;
however any evidence used for impeachment may not be used for anything else unless
introduced for the other purpose. The first method of impeachment, bias, attacks a
witness’s credibility by showing another motive for testifying.

Finally, under Rule 609, prior convictions for a felony or a dishonest crime may be used to
impeach a witness by showing previous untruthful criminal behavior. However, if any
prior conviction occurred more than 10 years ago, its probative value must substantially
outweigh its prejudicial effect.
 5 techniques:
 1. Prior Inconsistent Statements – Rule 613
-
Rule 613 both fed and ala; ex: witness on stand says P ran red light and
76
sometime before said D ran red light. Obviously can impeach here, but there
are a lot of hoops to encounter but generally this is the rule.
-
1. A prior inconsistent writing had to be disclosed to the witness before the
witness could be crosse-examined about it
Queen Caroline Case: Rule in Queen Caroline's Case is a common-law principle
that required a cross-examiner to confront a witness with the contents of a prior
inconsistent statement before the introduction of extrinsic evidence. The
-
witness must be confronted with the time, place, persons present and the
substance of an impeaching statement before extrinsic evidence could be
admitted as proof that the statement had been made.
2. Before extrinsic evidence of the P.I.S. could be offered,
the witness on cross had to be confronted with the particulars and given
the opportunity to admit or deny it.
Both are still active in common law and AL law.
-
 613(b) Extrinsic Evidence of a Prior Inconsistent Statement. Rule 613
-
Extrinsic evidence of a witness's prior inconsistent statement is admissible
only if the witness is given an opportunity to explain or deny the statement
and an adverse party is given an opportunity to examine the witness about
it, or if justice so requires.
-
This subdivision (b) does not apply to an opposing party's statement under
Rule 801(d)(2).
-
A Witness cannot be denied the opportunity to explain their answer away
-
You can impeach a witness even if the witness isn’t even there
-
Impeachment by omission
-
1. Showing that the person being impeached knew the need to be complete
when the earlier statement was given, either by a pre-existing duty or
because of the setting in which the statement was taken.
-
2. There was a place in the earlier statement where the critical and
heretofore unmentioned fact(s) should have been raised.
-
3. “Under the factual circumstances of this case, at the time of the making
of the document, report, or hearing, the matters were known and were
important.”
77
 2. Bias – Rule 616
-
Ala rule 616, federal (in case law);
-
Ex: induced witness into given bias testimony, relations, employers,
money.
-
1. A bias can be conscious or unconscious, and can be for or against
anyone or anything involved with the case. Under Abel, any witness bias
is always relevant and admissible for the purpose of impeachment. Even
religious beliefs, normally excluded under Rule 610, may be used to
impeach a witness based on bias.
 3. Convictions – Rule 609: Impeachment by Evidence of a Criminal
Conviction (Test Question)
 Finally, under Rule 609, prior convictions for a felony or a dishonest crime
may be used to impeach a witness by showing previous untruthful criminal
behavior. However, if any prior conviction occurred more than 10 years ago,
its probative value must substantially outweigh its prejudicial effect.
 prior inconsistent statement, which suggests that a witness’s testimony is not
credible because it is inconsistent with a statement made by the witness prior
to the trial. Rule 613 sets forth two guidelines for the use of prior inconsistent
statements.
o 1. if a prior inconsistent statement is introduced during examination of
the witness, the examining party must show or disclose the contents of
the statement to the opposing party upon request.
o 2nd, if a prior inconsistent statement is introduced through extrinsic
evidence, the witness must be given an opportunity to explain or deny the
statement, and the opposing party must be given an opportunity to
78
examine the witness about the statement.
 Rule 609(a)(1)
-
Ala Rule 609 and Fed rule 609; the drafters have decided that there are
certain crimes where if a person is convicted of those crimes, they are
less credible or less believable than someone who hasn't been convicted
of those crimes. Examples are perjury, fraud; Counsel would ask
witness, "Isn’t it true that you were committed to perjury, etc." TWO
types of convictions:
-
1. Felony
2. Crimes of dishonesty or false statement (perjury and fraud)
-
Rule 609(a) In General.
The following rules apply to attacking a witness’s character for
truthfulness by evidence of a criminal conviction:
-
-
609(a)(1) Felony – for a crime that, in the convicting jurisdiction,
was punishable by death or by imprisonment for more than one
year, the evidence:
o The Balancing TEST is Rule 403
o (A) must be admitted, subject to Rule 403, in a civil case or in a criminal case
in which the witness is not a defendant; and
o (B) must be admitted in a criminal case in which the witness is a defendant, if
the probative value of the evidence outweighs its unfair prejudicial effect to
that defendant; and
o
o Prosecutor has the burden of proving that the probative value does not
substantially outweigh the prejudicial effect of.
o
o Should be used sparingly/rare
o The similar the case the more prejudicial it is
o
- (2) (perjury and fraud) for any crime regardless of the punishment, the
evidence must be admitted if the court can readily determine that
establishing the elements of the crime required proving — or the witness’s
admitting — a dishonest act or false statement.

o If it is a crime of dishonesty or false statement and is less than 10 years oldThere is no balancing TEST (Test Question)
79
 NOTE: If Drafters of laws
 If they omit something, we assume it was done on purpose!
 609(b) Limit on Using the Evidence After 10 Years.
 This subdivision (b) applies if more than 10 years have passed since the witness’s
conviction or release from confinement for it, whichever is later. (Test Question)
Evidence of the conviction is admissible only if:

o (1) its probative value, supported by specific facts and circumstances,
substantially outweighs its prejudicial effect (Important Detail) (Test Question);
and

o (2) the proponent gives an adverse party reasonable written notice of the
intent to use it so that the party has a fair opportunity to contest its use.

 Still applies to acts of dishonesty to are over 10 years old.
 TEST Question

Random Witness
o Rule 403
o The objecting party has to prove that the relevant evidence shows an UNFAIR
PREJUDICE that is Substantially Outweighed by the Probative Value.

Criminal Defendant
o Probative value must outweigh the unfair prejudice

10 Years old
o Probative value must Substantially outweigh the unfair prejudice
80


609(c) Effect of a Pardon, Annulment, or Certificate of Rehabilitation.
Evidence of a conviction is not admissible if:

(1) the conviction has been the subject of a pardon, annulment, certificate of
rehabilitation, or other equivalent procedure based on a finding that the person
has been rehabilitated, and the person has not later been convicted of a felony.

2) the conviction has been the subject of a pardon, annulment, or other equivalent
procedure based on a finding of innocence.

* In ALABAMA
o A conviction can still be used despite the PARDON, but a PARDON can be
used to rehabilitate the witness.


609(d) Juvenile Adjudications.
Evidence of a juvenile adjudication is admissible under this rule only if:
o (1) it is offered in a criminal case;
o (2) the adjudication was of a witness other than the defendant;
o (3) an adult’s conviction for that offense would be admissible to attack the
adult’s credibility; and
o (4) admitting the evidence is necessary to fairly determine guilt or innocence.

609(e) Pendency of an Appeal.

A conviction that satisfies this rule is admissible even if an appeal is pending.
Evidence of the pendency is also admissible.
81
 Important Points about RULE 609 (Random Points)
 Impeachment Questions

Generally, will limit to 3 things
o 1. Name of Crime
o 2. Time and Place of conviction
o 3. Punishment
 What if Witness says “NO”?

Proving party can use Extrinsic Evidence to impeach the witness
 Remove the sting (Trial Court Strategy)

Bring up the incident before other

If you choose to remove the sting on direct, you wave the right to appeal the
inadmissibility of the conviction even the trial court unequivocally denies the
motion.
 Criminal Trial

Judge rule that criminal conviction will come be in play if when pretrial motion in
limine

IF a court denies the D motion in limine to exclude a prior conviction and the D
does not testify, the D may not appeal the motion in limine decision.
 4. Rule 608(b) 4. Non-convictions related to truthfulness–Ala - NOT
APPLICABLE
 Specific Instances of Conduct

(b) Specific Instances of Conduct.
82

o Except for a criminal conviction under Rule 609, extrinsic evidence is not
admissible to prove specific instances of a witness’s conduct in order to attack
or support the witness’s character for truthfulness. But the court may, on
cross-examination, allow them to be inquired into if they are probative of the
character for truthfulness or untruthfulness of:

o (1) the witness; or

o (2) another witness whose character the witness being cross-examined has
testified about.


By testifying on another matter, a witness does not waive any privilege against
self-incrimination for testimony that relates only to the witness’s character for
truthfulness.


Witness committed a dishonest act in past, but has not been convicted of it (in fed
court, you can ask witness about this dishonest statement);

o ex: Witness gave good testimony for D. Counsel asks M "isn't it true you steal
money out of the Ronald McDonald house fun at McDonald’s window?"

suggests that a witness’s testimony is incompatible or in conflict with a fact. The
contradicting fact may be proved by extrinsic evidence

In Order to ask the question
o 1. Must have a good faith basis (Can’t make it up)
83
o 2. Is subject to Rule 403.
o 3. Prior acts being asked about, must be about dishonesty
o 4. NO Extrinsic evidence is allowed under this rule

By testifying on another matter a witness does not waive any privilege against
self-incrimination for testimony that relates only to the witness’s character for
truthfulness.
o Witness can still plead the 5th!!!
 Federal rules allow this, but not Alabama
 5. Rule 608(a) Reputation/Opinion/Impeachment – Rule 608(a) 608(a)
both Ala and federal
 Ex: Witness 1 gets up and testifies. Opposing side that wants to impeach witness 1
can bring witness 2 to testify about witness 1 reputation or opinion (lay the
foundations, etc. from the mercy rule)
 If cross-examination constitutes an attack on a witness’ character for truthfulness, FRE
608(a) authorizes the use character evidence to bolster the witness’ credibility even if
the cross-examination was based on facts initially brought out on direct examination.
 Where a party introduces negative facts about a witness during direct examination and
the opposing party then uses those facts to attack the witness’ character for
truthfulness, FRE 608(a) authorizes the use of character evidence to bolster the
witness on rebuttal. A party has the right to bring out negative facts during direct
examination if that party anticipates the evidence will be used for impeachment on
cross-examination.
 Witness B can testitfy to (Impeaching Witness )
84

1. Reputation

2. Opinion

3. Charaticter for truthfulness

Lay Foundation for Reputation and attach to a
o 1. Community
o 2. Connect in that community with each other
o 3. Trait (Truthfulness or Untruthfulness)

The second method of impeachment, character, comes in three forms: opinion or
reputation, specific instances of conduct, and prior convictions. Under Rule
608(a), opinion or reputation evidence may be used to impeach a witness by
showing his or her untruthful character. Under Rule 608(b), specific instances of
conduct may be used to impeach a witness by showing previous conduct
probative of untruthfulness.
 Rehabilitation

Evidence of truthfulness of character is admissible

only after the witness’s character for truthfulness has been ATTACKED.

Process of repairing the witness’s credibility to make his or her testimony seem
more believable. Rehabilitation may only occur after impeachment. Any attempt to
increase a witness’s credibility before being impeached is known as bolstering
and is generally not permitted. A witness may be rehabilitated only by the same
method by which he or she was impeached, under the same rules and guidelines.
capa

Attacking Character is:
o 1. Bias
85
-
Allegiance bias
*
-
Not Attacking
Bias by corruption is an Attack

Homework Read through leading questions.
 ***this is all we need to know for the final on impeachment for the fall semester final
exam.
 Addition Impeachment Topics

1. Rehabilitation Rule 608(a)

2. Impeachment due to lack of Capacity

3. Collateral Matter Rule (Common Law)

4. Impeaching One’s Own Witness (Rule
 Capacity

capacity, suggests that a witness is not credible because of unreliable sensory
perception, unreliable memory, or lack of expert qualifications. A witness may
have unreliable sensory perception due to an inability to properly sense what he
or she claimed to sense, or due to diminished mental capacity.

 Collateral Matter Rule (TEST QUESTION)
86
 A collateral matter is evidence solely affecting the credibility of a witness. While
questioned about a collateral matter, the party cross examining the witness is bound
by the witness's answer to matters solely affecting credibility.
 It precludes the cross examiner from calling other witnesses or producing
documentary evidence to contradict the witness. Proving a Witness’s bias is not a
collateral matter


If a witness denies having a bias, extrinsic evidence of that bias is allowed If the
issue is whether something is collateral
o 1. Is the issue before the court relevant to any issue of the case
o 2. Would this extrinsic evidence impeach the witness in any way, other than
showing a minor inconsistency.
 If the answer to both these questions is NO, then the matter is collateral and you can’t
go extrinsic.
 Rule 611(a) MODE AND ORDER OF INTERROGATION OF
WITNESSES
 611(a) Control by the Court; Purposes.

The court should exercise reasonable control over the mode and order of
examining witnesses and presenting evidence so as to:

Judge has wide discretion in order and mode of the witnesses and interrogation.
Judge is there to help find the truth.
87
o (1) make those procedures effective for determining the truth;
o (2) avoid wasting time; and
o (3) protect witnesses from harassment or undue embarrassment.

611(b) Scope of Cross-Examination.
o Cross-examination should not go beyond the subject matter of the direct
examination and matters affecting the witness’s credibility. The court may
allow inquiry into additional matters as if on direct examination.
o limits the scope of cross-examination of all witnesses to matters testified to on
direct and matters bearing on credibility, unless the court in its discretion
allows inquiry into additional matters as if on direct examination.
o The scope of cross examination is broad enough to allow questioning
intended to expose a witness's bias.
o Question on Cross examination
-
1. substantive question brought out in direct questions
-
2. Impeachment
o AL.
-
-
Wide Open Rule
*
Substitutive questions can be relevant to any issue in the case
*
Can Always impeach
Redirect Questions
*
Should be is limited to matters that were covered during crossexamination

611(c) Leading Questions.
88
o Leading questions should not be used on direct examination except as
necessary to develop the witness’s testimony.
o Ordinarily (Judge’s discretion) The court should allow leading questions:
-
(1) on cross-examination; and
-
(2) (Exception) when a party calls on Direct examination:
*
1. hostile witness,
*
2. an adverse party, or a
*
3. witness identified with an adverse party.
*
4. Small Children and children with communication problems
*
5. Preliminary matters
-
(is a discrete element of a dispute that has the potential to
decisively conclude the claim, or a substantial part of the claim, or
otherwise substantially cut down on the scope and costs of the
litigation.)
*
6. In direct, necessary to develop the witness’s testimony
*
7. When the witness is having trouble remembering
o Object to the form of the question is possible when objecting to a leading
question.
Homework: mode and interrogation of witnesses and 1st case of lay witness.
-
 Rule 612 Refreshing Recollection (Test Question)
 Rule 612 (a) Scope.

This rule gives an adverse party certain options when a witness uses a writing to
refresh memory:
o (1) while testifying; or
o (2) before testifying, if the court decides that justice requires the party to have
those options.
89

You can refresh a witness’s memory without inadmissible evidence.
o Memory can be refreshed with you have never even seen. (Test Question)

Elements (If elements are refreshed then Rule 612 is allowed) Present
recollections is revived.
o 1. Witness has trouble remembering
o 2. At one point, had personal knowledge about what they are being asked
about
o 3. Their memory is capable of being refreshed with a writing or a things.

Judge has great discretion on how witness refreshes their memory

Rule 612(b) Adverse Party's Options; Deleting Unrelated Matter.
o Unless 18 U.S.C. § 3500 provides otherwise in a criminal case, an adverse
party is entitled to have the writing produced at the hearing, to inspect it, to
cross-examine the witness about it, and to introduce in evidence any portion
that relates to the witness's testimony. If the producing party claims that the
writing includes unrelated matter, the court must examine the writing in
camera, delete any unrelated portion, and order that the rest be delivered to
the adverse party. Any portion deleted over objection must be preserved for
the record.
o Gives Adverse Party Rights
-
1. Right to see the writing
-
2. To inspect it
-
3. To cross-examine witness with the writing
-
4. They can introduce the writing into evidence
o Is allowed in an effort to keep cheating in check
o Past recollection recorded. (3rd Tool for refreshing recollection)
-
803(5)
-
Happens when Witness’ memory cannot be refreshed
*
1. Witness cannot remember
90
*
2. The witness wrote or saw a writing that the witness can’t remember
*
3. The witness wrote or saw the writing when the matter was fresh on
their mind
*
-

4. At that time the witness knew the information was correct.
The writing can be read into evidence.
Rule 612(c) Failure to Produce or Deliver the Writing.
o If a writing is not produced or is not delivered as ordered, the court may issue
any appropriate order. But if the prosecution does not comply in a criminal
case, the court must strike the witness's testimony or--if justice so requires-declare a mistrial.
o When a privilege doc. Is used to refresh a witness’s recollection the adverse
party receives limited access to the part that was used to refresh the memory
but not the entire writing.
 Rule 614 Courts Calling or Examining a Witness

Rule 614(a) Calling.
o The court may call a witness on its own or at a party's request. Each party is
entitled to cross-examine the witness.
-
Historically
*
Rule developed bc asks judge to call witness, so party didn’t have to
vouch for witness
*
-
Judge can call witnesses
*

Couldn’t lead on direct
If judge calls the witness then both sides can lead questions
(b) Examining.
91
o The court may examine a witness regardless of who calls the witness.
o Can Judge question witness?
-
Yes, but the Judge can’t ask questions cannot reveal about the credibility
of the witness or his opinion of the case.

(c) Objections.
o A party may object to the court's calling or examining a witness either at that
time or at the next opportunity when the jury is not present.
o If Judge asks a question and the lawyer objects to the question it must be
timely or at the first available time when jury isn’t present.
o No rule speeches about if jury can ask questions
-
It is up to the judge’s discretion
o If jury wants or is admitted to asking questions
-
Have jury write questions down and then outside the presence of the jury
have the questions read and the objections can be made.
 Rule 615 Excluding Witnesses (Test Question) (Known as the Rule)
 At a party's request, the court must order witnesses excluded so that they cannot
hear other witnesses' testimony. Or the court may do so on its own
 Why
o Bc we want the untainted truth of the witnesses
 The Judge does NOT have discretion when Rule 615 is invoked.

But [Rule 615] does not authorize excluding:
o 1. (a) a party who is a natural person;
o 2. (b) an officer or employee of a party that is not a natural person, after being
designated as the party's representative by its attorney; (Representative)
o 3. (c) a person/witness whose presence a party shows to be essential to
presenting the party's claim or defense; or (possibly Experts are allowed to
stay or lead police office/Lead Detective)
o 4. (d) a person authorized by statute to be present. (Most common, is
92
VICTIM)

If Rule 615 is violated
o Excluding the witness’s testimony (Should be rare)
o Hold the witness in contempt
o Can instruct the jury that this witness violated the rule and can you that when
the jury weighs the witness’s testimony
o Mistrial

Other Issues
o The rule doesn’t apply to depositions!!!
-
But, you can contact the judge and get the other witness’s out of the
deposition room.
 Rule 701 Lay Witness

If a witness is not testifying as an expert, testimony in the form of an opinion is
limited to one that is:
o 1. (a) rationally based on the witness's perception; (aka, personal knowledge)
o 2. (b) helpful to clearly understanding the witness's testimony or to
determining a fact in issue; and
o 3. (c) not based on scientific, technical, or other specialized knowledge within
the scope of Rule 702. (Translation: it can’t be expert testimony) (AL doesn’t
have this one)

2 Things working against you if you don’t want evidence entered.
o This is based on discretion
o There is no reversal is the error was harmless

Elements
o 1.
93
o 2.
o 3. 701© Subject matter cannot be based on expert testimony.
Fed. R. Evid. 702 (as originally enacted)
 “If scientific, technical, or other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue, a witness qualified as an
expert by knowledge, skill, experience, training, or education, may testify thereto in the
form of an opinion or otherwise.”

Fed. R. Evid. 702 (eff. 1975)
 FRE and ARE Rule 702 Requirements/Elements

1. Must be proper subject matter
o Scientific, technical, or other specialized knowledge

2. Expert must be qualified
o Knowledge, skill, experience, training, or education

3. Testimony must
o “assist the trier of fact”

THESE HAVE NOT CHANGED AND APPLY TO ALL EXPERTS IN FEDERAL
AND ALABAMA STATE COURT (Test Question)

1.Element: Proper Subject Matter
o Must be proper subject matter
-
Scientific, technical, or other specialized knowledge
o Montas case
-
Rule:
-
Expert testimony may not be used if an untrained layman would be able to
understand the issue without an explanation from someone with
94
specialized understanding of the subject.

2. Element: Qualifications
o Expert must be qualified
-
Knowledge, skill, experience, training, or education
o Trial judge has great discretion
o Logistics of qualifying expert can vary
o Rule

-
An Expert may only give opinions within the scope of their expertise
-
Objection: Expert is not qualified to speak on this matter.
3rd Element: Assist the Trier of Fact
o General rule.
-
Expert testimony assists the trier of fact if it concerns matters that are
beyond the understanding of the average lay person.
o Expert testimony generally will NOT help the trier of fact when it offers nothing
more than what lawyers for the parties can argue in closing arguments.
FRE and ARE Rule 702 Requirements
 Expert Standard Today

Must be proper subject matter (702(a))
o Scientific, technical, or other specialized knowledge

Expert must be qualified (702(a))
o Knowledge, skill, experience, training, or education

Testimony must “assist the trier of fact” (702(a))

Expert must satisfy Daubert
95
o Codified at 702(b), (c), and (d)

The Frye Rule
o Historically, an additional common law “hoop” for “novel, scientific” evidence.
o “General acceptance test”
o Federal and Alabama courts historically applied the Frye standard to expert
testimony based on a “novel, scientific” theory, principle, or technique.
o Frye v. United States, 293 F. 1013 (D.C. Cir. 1923)
 Fed. R. Evid. 702 (now)
o 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:
o 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.

The Daubert Decision, 509 U.S. 579 (1993)
o Held that the Frye test was not incorporated into the Federal Rules of Evidence and
should not apply to federal trials.
o Introduced a new test admissibility test for scientific expert testimony in federal
courts.
o In 1999, the Daubert standard was extended to all expert testimony in federal courts.
Kumho Tire v. Carmichael, 526 U.S. 137 (1999)
96
o In 2000, the Daubert standard was codified in FRE 702.
o Every expert in Fed. Court must satisfy the Daubert standard.

Key Points of Daubert Analysis
o Trial judge must determine that expert evidence is both relevant and reliable.
o Trial judge is the “gatekeeper” of expert evidence.
o Under the old Frye test, the trial judge could admit the expert testimony if the
method or technique was “generally accepted.”
o Under Daubert, the trial judge needs to look behind the expert and determine
reliability.
o Expert Witnesses
-
Traditional Daubert Factors
*
(1) Can or has expert's theory been tested?
-
-
If no, it can still be admitted, just counts against them.
*
(2) Subjected to peer review and publication?
*
(3) Generally accepted in relevant scientific community?
*
(4) Known or potential rate of error?
*
(5) Standards of controlling application?
Additional Factors
*
1. Was testimony prepared solely in anticipation of litigation, or is it based
on independent research?
*
2. Is expert’s field known to produce reliable results?
*
3. Have other courts determined the expert’s methodology is reliable?
*
4. Non-judicial uses for the expert’s methodology/science?
97

Daulbert In AL.
o 2011 AL amended 702 that Daulbert applies to scientific experts
o Doesn’t apply to all cases like, domestic violence, etc. most civil cases it will apply.
 Rule 703 Bases of an Expert’s Opinion Testimony

“An expert may base an opinion on facts or data in the case that the expert has been
made aware of or personally observed. If experts in the particular field would reasonably
rely on those kinds of facts or data in forming an opinion on the subject, they need not be
admissible for the opinion to be admitted. But if the facts or data would otherwise be
inadmissible, the proponent of the opinion may disclose them to the jury only if their
probative value in helping the jury evaluate the opinion substantially outweighs their
prejudicial effect.”

Bases of an Expert’s Opinion Testimony
o “An expert may base an opinion on facts or data in the case that the expert has been
made aware of or personally observed. If experts in the particular field would
reasonably rely on those kinds of facts or data in forming an opinion on the subject,
they need not be admissible for the opinion to be admitted. But if the facts or data
would otherwise be inadmissible, the proponent of the opinion may disclose them to
the jury only if their probative value in helping the jury evaluate the opinion
substantially outweighs their prejudicial effect.” (Test Question)
-

There is a presumption against the disclosure of evidence!!
Expert Witness can base their opinion on:
o 1. Common Law Rule
-
Generally, expert could base opinion on two things:
o 2. Personal knowledge
-
Facts, part of the record and presented in form of a hypothetical question
o 3. General rule.
98
-
Historically, expert could not, but CAN NOW base opinion on inadmissible
evidence.
-

Usually inadmissible evidence is hearsay
Problems with Old Rule 703
o Experts, when acting in the real world outside courtroom, rely on information
(primarily hearsay) that may not be admissible
o Result.
-
Common law trend became more liberal.
o Trend allowed experts to base opinions on hearsay that appeared “particularly
trustworthy.”

Foundation to Admit Expert Opinion Based on Inadmissible Facts or Data
o “Reasonable reliance” includes two considerations:
-
1. Whether other experts in the field “normally and customarily rely on such
information in forming opinions,” and
-
2. Whether the otherwise inadmissible facts or data is trustworthy enough to
make reliance “reasonable.”
o Examples of “reasonable reliance” found
-
Doctor diagnosis. Based on reading another doctor’s review of autopsy report
not in evidence. Peabody v. Director, 165 F.3d 1126, 1128 (7th Cir. 1999)
-
Arson cause and origin expert. Based on inspection and witness interviews.
U.S. v. Lundy, 809 F. 2d 392, 395-96 (7th Cir. 1987)
o Examples of “reasonable reliance” found
-
Accounting fraud expert. Based in part on review of corporate documents,
financial statements, and library research into background of company. Bauman
v. Centex Corp., 611 F.2d 1115, 1120 (5th Cir. 1980) (“these sources, while not
99
all in evidence, are of the type reasonably relied on by certified public
accountants in evaluating the operation of corporations and did not render the
testimony unreliable.”)
-
Bank fraud expert.
*
Based on review of bank documents and interviews with bank employees.
First Nat’l Bank v. Lustig, 96 F.3d 1554, 1575-76 (5th Cir. 1996)


Can jury be made aware of inadmissible information?
o Arguments for allowing disclosure:
-
It gives the jury a basis to evaluate the opinion
-
It is not substantive evidence.
o Argument for NOT allowing disclosure:
-
Danger that proponent will use Rule 703 as a vehicle to get persuasive
inadmissible evidence before the jury
 Rule 703 (Test Question)

If an expert bases his opinion on inadmissible evidence can the jury know this?

On Direct examination, which facts or data or witness statement’s can the jury be made
aware of ?

Can jury be made aware of inadmissible information?
o Reverse 403 balancing test: presumption against disclosure
o If disclosed, may not be used for substantive purposes. Information may only be
used to evaluate opinion.
o Upon request, the court must give a Rule 105 limiting instruction.
o The adverse party may disclose the otherwise inadmissible evidence.
10
0
 Rule 705 Disclosing the Facts or Data Underlying an Expert’s Opinion

“Unless the court orders otherwise, an expert may state an opinion--and give the reasons
for it--without first testifying to the underlying facts or data. But the expert may be
required to disclose those facts or data on cross-examination.”

Disclosing the Facts or Data Underlying an Expert’s Opinion
o “Unless the court orders otherwise, an expert may state an opinion--and give the
reasons for it--without first testifying to the underlying facts or data. But the expert
may be required to disclose those facts or data on cross-examination.”
 Rules 703 & 705 Work Together

Can jury be made aware of inadmissible information?

Rose Hall, LTD., v. Chase, 576 F. Supp. 107, 158 (D. Del. 1983) (“While an expert
witness may base his opinion on such evidence [hearsay], this does not magically render
the hearsay evidence admissible.”)

Rule 705 allows the opponent to bring out such information. The critical issue is whether
the proponent may do so.

703 is not a hearsay exception. An expert can rely on facts.
 Rule 704 Opinion on an Ultimate Issue

Historically/Common Law “Ultimate issue Rule”
o Objection goes to the ultimate issue of the case

704(a) In General
o
Not Automatically Objectionable. An opinion is not objectionable just because it
embraces an ultimate issue.
o A witness may not testify to a legal conclusion.

704(b) Exception.
10
1
o In a criminal case, an expert witness must not state an opinion about whether the
defendant did or did not have a mental state or condition that constitutes an element
of the crime charged or of a defense. Those matters are for the trier of fact alone.
o CANNOT DO:
witness may not testify to a legal conclusion.
-
Question cannot mirror a federal/state law or mirror it.
-
If opposing party asks this type of question, the correct response is, “Objection,
Legal Conclusion.”
 Rule 901 – Authentication or Identifying Evidence-LIVE PERSON/Witness

Rule 901(a)
o (a) In General.
-
To satisfy the requirement of authenticating or identifying an item of evidence,
the proponent must produce evidence sufficient to support a finding that the
item is what the proponent claims it is.
*
Authentication is a low bar
*
Standard is
-
Could a reasonable juror concluded that the evidence or statement is
what it claims to be.

Rule 901(b)
o (b) Examples. The following are examples only--not a complete list--of evidence
that satisfies the requirement:
-
(1) Testimony of a Witness with Knowledge. Testimony that an item is what it
is claimed to be.
-
(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. (Witness can gain information for litigation purposes for
non-expert opinion, must be obtained by real world situations.) TEST Question
10
2
-
*
3 Questions to satisfy authentication
*
Have you ever seen the person write?
*
Would you recognize his hand writing if you saw it?
*
In your opinion, is this (person) hand writing?
3) Comparison by an Expert Witness or the Trier of Fact. A comparison
with an authenticated specimen by an expert witness 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.
-
*
Means something can be authenticated based on circumstantial evidence.
*
901b4: Big for Social Media and electronic evidence.
(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.
*
Translation:^ Test Question
-
A witness can give opinion on voice even if familiarity became
familiar for litigation purposes.
*
-
This can be done by 3 ways
-
Have you ever heard person speak
-
Would you recognize person’s voice if you heard it.
-
In your opinion, is this person’s voice on the recording.
6) Evidence About a Telephone Conversation. For a telephone conversation,
evidence that a call was made to the number assigned at the time to:
10
3
*
(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 telephone.
-
(7) Evidence About Public Records. Evidence that: (Used to Authenticate
Public Records)
*
(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.
-
(8) Evidence About Ancient Documents or Data Compilations. For a
document or data compilation, evidence that it: (Authenticate Ancient
Documents)
-
-
3 Elements
*
1. (A) is in a condition that creates no suspicion about its authenticity;
*
2. (B) was in a place where, if authentic, it would likely be; and
*
3. (C) is at least 20 years old when offered.
(9) Evidence About a Process or System. (ex. Surveillance Video, results from
radar gun) Evidence describing a process or system and showing that it
produces an accurate result.
*
-
2 Elements requirements
-
1. Show the process or system is generally liable
-
2. It was reliably applied properly to the evidence of this case
(10) Methods Provided by a Statute or Rule. Any method of authentication or
identification allowed by a federal statute, or a rule prescribed by the Supreme
10
4
Court.
*
 Rule 902 – Evidence That Is Self-Authenticating

The following items of evidence are self-authenticating; they require no extrinsic
evidence of authenticity in order to be admitted:

(4) Certified Copies of Public Records. A copy of an official record--or a copy of a
document that was recorded or filed in a public office as authorized by law--if the copy
is certified as correct by:
o A certified copy of a public record is self-authenticated
o (A) the custodian or another person authorized to make the certification; or
o (B) a certificate that complies with Rule 902(1), (2), or (3), a federal statute, or a
rule prescribed by the Supreme Court.

(5) Official Publications. A book, pamphlet, or other publication purporting to be issued
by a public authority.

(6) Newspapers and Periodicals. Printed material purporting to be a newspaper or
periodical.
o Newspaper are self-authenticated

(7) Trade Inscriptions and the Like. An inscription, sign, tag, or label purporting to
have been affixed in the course of business and indicating origin, ownership, or control.

(9) Commercial Paper and Related Documents. Commercial paper, a signature on it,
and related documents, to the extent allowed by general commercial law.
o

(10) Presumptions Under a Federal Statute. A signature, document, or anything else
that a federal statute declares to be presumptively or prima facie genuine or authentic.
10
5
o

(11) Certified Domestic Records of a Regularly Conducted Activity. The original or
a copy of a domestic record that meets the requirements of Rule 803(6)(A)-(C), as
shown by a certification of the custodian or another qualified person that complies with a
federal statute or a rule prescribed by the Supreme Court. Before the trial or hearing, the
proponent must give an adverse party reasonable written notice of the intent to offer the
record--and must make the record and certification available for inspection--so that the
party has a fair opportunity to challenge them.
o Business records that are certified are self-authenticated
o 2 procedural requirements
-
1. Must send the opposing party written notice that you are traveling under this
rule
-
2. Must make records and certification available for review of other part.

(12) Foreign Business records

(13) Certified Records Generated by an Electronic Process or System. A record
generated by an electronic process or system that produces an accurate result, as shown
by a certification of a qualified person that complies with the certification requirements
of Rule 902(11) or (12). The proponent must also meet the notice requirements of Rule
902(11).
o Self-authenticating electronic records

(14) Certified Data Copied from an Electronic Device, Storage Medium, or
File. Data copied from an electronic device, storage medium, or file, if authenticated by
a process of digital identification, as shown by a certification of a qualified person that
complies with the certification requirements of Rule 902(11) or (12). The proponent also
must meet the notice requirements of Rule 902(11).
o Ex. Text message on cell phone
o Self-authenticating electronic evidence
10
6
o This only gets evidence over authentication hurdle. Doesn’t mean that file or device
will be admissible to evidence bc evidence still has to pass objections

902(13)(14) Require Elements
o 1. Needs to come from a qualified person
o 2. Must authenticate correct kind of information
o 3. The certification must comply with Rule 902(11)(12) who is retrieving the
information
o 4. Procedural requirements must comply with 902(11)

-
1. Advance written notice
-
2. Opportunity to inspect
Break down of Authentication
o Writing
-
901(b)(1). Witness with knowledge
-
901(b)(2). Nonexpert opinion on handwriting
*

3 questions to authenticate
-
901(b)(3). Comparison by expert or trier of fact
-
901(b)(4). Distinctive characteristics and the like
*
Public records. 901(b)(7) (Live witness) and/or 902(4) (certificate)
*
Statutes. 901(b)(10) and/or 902(10)
*
Business records. 902(11) and/or (12) = Self-Authenticating
Voices
o 901(b)(1). Witness with knowledge = Best way
10
7
-
3 questions to authenticate
o 901(b)(5). Nonexpert opinion on voice
o 901(b)(3). Comparison by expert or trier of fact
o 901(b)(4). Distinctive characteristics and the like
o 901(b)(6). Telephone Conversations

Photographs and Videos
o Pictorial Testimony Theory (Historically only way to authenticate) (Most common)d
-
Evidence is admissible when a sponsoring witness can testify that it is a fair and
accurate representation of the subject matter or what the witness saw. It is
important to note, this theory is based on the personal observation(s) of the
witness.
-
Problem
*
-
Sometimes there is no witness
ex. Body cams
o Silent Witness Theory (see 901(b)(9))
-
a theory or rule in the law of evidence: photographic evidence (as photographs
or videotapes) produced by a process whose reliability is established may be
admitted as substantive evidence of what it depicts without the need for an
eyewitness to verify the accuracy of its depiction.
*
Video speaks for itself. (ex. CAT Scan, surveillance video)
*
Focus on the system and equipment
-
Have To Establish that the system is:
-
1. System is reliable
-
2. System Produces accurate results
10
8

Demonstrative evidence
o Demonstrative evidence can be objects, pictures, models, displays, or other devices
used in a trial or hearing to support facts that the party is trying to prove.
o Unless it is agreed upon demonstrative evidence does not go back to the jury room
-
1. Demonstrative evidence depicts relevant information that will be relevant and
helpful to the jury
-
2.
-
3. It will assist the jury assist the jury
o Demonstrative evidence is admissible if it is relevant, actually explanatory, and not
misleading. Admissible demonstrative evidence helps to give the jury a better
opportunity to understand the subject matter. However, demonstrative evidence
must not be used for dramatic effect or emotional appeal. In the present case, the
doctor used the skeleton model to help the jury understand his explanation that
Smith’s pelvis was injured and did not look like it should. This use of the model was
relevant and helpful to the jury, and was not overly dramatic or appealing to the
jury’s emotions

Chain of custody
o A process of authenticating real evidence through the testimony of custodians in
order to prove that the evidence was not altered or exchanged between the point in
time when the parties do not dispute the location and condition of the real evidence
and the point in time when the evidence is offered at trial.
o Each link in the chain testifies that they had the evidence who they gave it to.
o Ex. Blood, urine, drugs
o The trial judge must be satisfied that there is a reasonable probability that the
evidence has not been material altered of tampered with.
 Rule 201(a) Judicial Notice of Adjudicative Facts
10
9

courts may only take judicial notice of adjudicative facts. An adjudicative fact is simply
any fact that’s relevant to the disputed matters in the case.

A court’s recognition of a commonly known and certain fact without the need for a party
to provide proof of the fact.

(a) Scope. This rule governs judicial notice of an adjudicative fact only, not a legislative
fact.

(b) Kinds of Facts That May Be Judicially Noticed. The court may judicially notice a
fact that is not subject to reasonable dispute because it:
o (1) is generally known within the trial court's territorial jurisdiction; or
o (2) can be accurately and readily determined from sources whose accuracy cannot
reasonably be questioned.

(c) Taking Notice. The court:
o (1) may take judicial notice on its own; or
o (2) must take judicial notice if a party requests it and the court is supplied with the
necessary information.

(d) Timing. The court may take judicial notice at any stage of the proceeding.

(e) Opportunity to Be Heard.
o On timely request, a party is entitled to be heard on the propriety of taking judicial
notice and the nature of the fact to be noticed. If the court takes judicial notice
before notifying a party, the party, on request, is still entitled to be heard.

(f) Instructing the Jury.
o CIVIL CASES, the court must instruct the jury to accept the noticed fact as
conclusive.
o CRIMINAL CASES, the court must instruct the jury that it may or may not accept
the noticed fact as conclusive.
11
0
Fed. R. Evid. 602 - Personal Knowledge of witnesses

Kemp v. Balboa
*
Prisoner sued prison guard for taking away medicine to control prisoner’s
epilepsy. Evidence at issue is testimony of nurse (lay witness). P (inmate)
failed to pick up his medicine. Nurse was not their that day and she just
read off medical records at trial to give her "personal knowledge."
*
Rule: LAY WITNESSES MUST have PERSONAL KNOWLEDGE about
which that witness testifies.
*
Held: Nurse witness did not have personal knowledge.
*
Example: J sued D for negligence. Witness saw the accident and saw the D
run the red-light. Counsel must lay the foundation before questioning this
eyewitness by asking – “when, what, where, how” to establish that the
Witness saw what they have claimed to seen.
*
Note - "no foundation" will be a common objection.
o 3 different scenarios that a lay witness can show knowledge:
*
1. Witness personally observed the fact, OR could rationally infer it from
what they observed
-
(example: standing on the street corner with no obstruction and W
claims to have seen the crash)
-
if Rule 602 objection, it should be overruled so long as proper foundation
is laid. APPROPRIATE and satisfied rule 602. The other 2 below DO
NOT.
11
1
-
*
Does not apply to a witness’s expert testimony under Rule 703
2. When someone tells the W what happened.
-
(W says Joe told me that the ford pinto mint green ran the red-light; this is NOT
PERSONAL KNOWLEDGE, this is hearsay) -- NOT PERSONAL
KNOWLEDGE
*
-
Knowledge based on Hearsay is not personal knowledge!!!Test Question
*
3. When the witness speculates or has a hunch –
-
Generally, this is NOT ALLOWED. (Opinion testimony, only based on what the
observed or what they rationally perceived)
-
*Remember that foundation MUST be established.
Fed. R. Evid. Rule 603 - Oath or Affirmation
 Oath before a witness testifies

Before a witness testifies they need to give and oath or affirmation that they will
tell the truth.
o Normally, it say's "do you swear to tell the truth, the whole truth, nothing but the
truth, so help you God." (However, the Rules do not require this wording)

Bottom Line of the rule:

Couple of components to be present:
11
2

(1) W must be a declaration to TELL THE TRUTH,

(2) it must given in a solemn manner to "awaken the conscience" and
remind the witness of their duty to tell the truth.
 Oath - what makes something an oath? Involves God.

Affirmation - does not involve God. (Still must meet the 2 components
above)

Regardless of being oath or affirmation, it must underlie the 2 components
above.
 Constitutional Issue
o
W has the right under 1st amendment to refuse to take an Oath or use
words that would offend W religion choice. In this case, the W must take
an affirmation if they choose not to take an oath.
o
Alabama is the same as the federal rule.
Fed. R. Evid. Rule 604 – Interpreter


Interpreters relay testimony of the person who cannot speak the English
Language.
o
Interpreter virtually becomes the witness and must be administered
OATH or Affirmation JUST LIKE A WITNESS -- to give a TRUTHFUL
INTERPREATION/TRANSALTION.
o
If the interpreter doesn’t do something truthfully, they are subject to perjury,
etc.
11
3
o
One other point:
o
Interpreters like Experts have to be qualified--- ex: if expert is to give an
opinion as to Airbags and how they work, the expert has to be qualified. As
with experts,
o
INTEREPRETERS must be QUALIFIED as well before they conduct their
"expertise" of translating the message properly to the court.
o
Alabama rule is the same as federal

















11
4
 Fed. R. Evid. 605 - Judge's Competency as a Witness

Example: Opposing counsel calls judge to testify.
o
CAN NOT DO THIS!
o
Judges are NOT competent to be a witness. The presiding judge is not
competent to be a witness at the case at bar.
o
No objection necessary to preserve issue for appeal.
o
A party need not object to preserve the issue. You can raise it for
the first time on appeal. (Do not have to object at trial to preserve
it)

Alabama is the same as the federal rule

Federal statute of recusal:

says that a JUDGE MUST recusal himself where he is likely to be a witness.
 Fed. R. Evid. Rule 606 - Juror's Competency as a Witness
o MOST INVOLVED RULE IN THE 600'S
o Deals with the competency of juror as witness.
o Rule: (two categories) - when can a juror be a witness:
(1) Can juror be witness AT TRIAL?
• No; a JUROR is NOT COMPETENT to give testimony at trial at which the
juror sits.
11
5
• Why is this never an issue? Voir Dire! Counsel picks jurors by questioning
them asking whether they know anything about the case, etc, to figure out if
there is a potential witness that could be involved in the case. If so, they will
be relieved of jury duty. If it is an issue, in the unlikely event counsel calls a
juror as witness, the court must give a party an opportunity to object outside
the jury's presence.
• If in trial, there is some craziness such as drinking of jurors, the judge can
call mistrial. Rule 606 would not apply. Counsel can request mis-trial
instead.
(2) Post-Trial or Post Verdict
-
Ex: Jury reaches verdict and one side is happy and one side is
unhappy. Losing side is upset. After verdict, when jury is released, a
counsel can talk to the jurors asking questions such as why you were in
favor of either side. Here, you could face the issue of IMPROPER
CONDUCT by the jury. Procedurally, what can counsel do? File a motion
for new trial. When this is done, you must attach evidence, and the
evidence will most likely be an affidavit of the juror discussing what
happened.
-
Question: When is a juror competent to give testimony post verdict
through affidavit, testimony, or otherwise? Prior to rule 606(b) being
adopted, a majority of courts did not allow this. Courts wanted litigation to
be final and didn't want post verdict issues. But rule 606(b) has carved out
limited situations where a juror can attack its own verdict.
-
What juror CANNOT testify about: cannot attack verdict about what
was said such as deliberation or occurrences among the jurors
11
6
themselves in the confines of the jury room.
-
Exceptions: BUT jurors CAN (NARROR RULE) testify to the following
three things:
 1. Testify to EXTRANEOUS PREJUDICIAL INFORMATION that was used in
the jury room;
 2. Testify as to OUTSIDE INFLUENCES improperly brought to the jury's
attention
 3. (ONLY IN FEDERAL COURT) - Juror can testify to attack its verdict as to
MISTAKE on the verdict form. -- this is not applicable in Alabama.
 4. Extraneous prejudicial info: info not presented into evidence such as a
jurors reading a newspaper article, obtaining info from newspapers, internet,
another person, investigation, visiting scene of accident.
 5. Outside influence: Bribes or threats from non-jurors
- Ex: M is sitting in the jury room deliberating about the case, and M's phone
rings, giving him an offer of 5 million to find for P and 20 million for punitive
and if M doesn’t do this, the briber will break his arm.
- Suppose M as a witness tells defense counsel after case about this bribe.
This can be proper ground for M to testify as a juror post verdict.
- Tanner v. United States: D loses case and finds out jurors were drinking
and smoking pot. D counsel files motion for new trial and attaches affidavit
of juror saying that they were drinking, etc. Court held: NOT
EXTRANEOUS PREJUDICAL INFO, OR OUTSIDE INFLUENCE. It was
within the jury's deliberation.
11
7
*
Ex: During trial, you hear that jurors are smoking pot. (See above)
*
Ex: Attach affidavit of bailiff saying they were smoking pot and
drinking; 606(b) applies to juror testimony only, so it would not apply.
-
6. Mistake on verdict form (not common)
P lawyer talks to jurors after trial and juror says "we forgot to
add a zero on the form for the damages". Juror could testify
about this. Not an issue very often, b/c the judge will poll the jury
one member at a time to clarify their verdict is correct.
-
In fed court, you can do this. (This is a very recent rule
adopted in 2006 to federal rules; in Alabama it was unanimously
rejected)
Impeachment p330-conviction
o MISC, GENERAL PROVISIONS
-
PROCEDURAL issues that do not come up often:
-
Rule 101 - Scope:
*
these rules govern proceedings in courts of the United States.
(District Courts and appeals courts; it also applies to bankruptcy
judges; also Magistrate judges)
*
Exceptions Rule 1101 - applicability of the rules: Carves out
some exceptions where the rules of evidence do not apply
(even in federal setting):
-
1. Preliminary question of FACT, except with regards to
privileges. **
11
8
-
2. Grand Jury proceedings (prosecution is the only counsel
present)
-
3. Misc. Proceedings-
-
Examples:
-
proceedings for extradition, preliminary examinations in criminal
cases (when the court decides there is probable cause to hold
D for trial), sentencing or probation hearings, issuance of
warrants for search or arrest, proceedings with respect to bail.
-
RULES OF PRIVELEGE
* still apply in these type of proceedings listed above that are exempt
generally from the rules of evidence.
 Rule 102 Purpose
 These Rules
 Rule 103 Ruling of Evidence (WILL Be ON EXAM)
 When you are the objecting party

(a) Preserving a Claim of Error
o 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. If the ruling admits evidence, a party, on the record:
o (A) timely object or moves to strike and
-
Timeliness
-
The objecting party must object as soon as its known or should have
been known for the grounds for objection. (immediate)
-
Usually right after the question is asked.
-
Object and move to strike
*
-
Some testimony may blurted out.
Objection to evidence
11
9
*
Must be objected to when it is formally entered into evidence.
o (B) states the specific ground, unless it was apparent from the context.
-
Use context
 When you are the offering party
 103(a) Preserving a claim of Error

A party may claim error in a ruling to admit or exclude evidence only if the error
affects a substantial right of the party.

103(2) if the ruling excludes evidence a party informs the court of its substance
by a off of prof, unless the substance was apparent from the context.
 103 (b) Not Needing to Renew an Objection of Offer of Proof

Once/If the court rules definitively on the record—either before or at trial—a
party need not renew an objection or offer proof to preserve a claim or error for
appeal.
o Two 2 Practice Tips
-
Be wary about relying on this
-
AL. rule 103 is different.
 Removing the Sting
 If you know evidence is going to being something up, bring it up first and a kinder
light.
 The party that introduces evidence

Cannot complain that evidence was erroneously admitted.
 In a civil deposition

Rule 103 does NOT apply

General rule in civil case,
o Objections to questions at deposition that can be cured in the deposition
have to be objected to at the deposition.
Bar Exam: questions regarding "types of evidence" 1. Oral testimony: Comes in the form of witnesses.
12
0

3 types of witness -
i. Character Witness
ii. Lay/Fact witness
iii. Expert witness
2. Real evidence: any physical evidence that a party claims played a direct role
in the dispute. Ex: Murder weapon, bloody glove, sponge, etc.
- The rules do not have these terms "real evidence"
- Real evidence must be authenticated (lay a foundation that it is what you
claim it to be)
3. Documents: must be authenticated;
4. Demonstrative: evidence that lawyers create and use to illustrate or
demonstrate some fact or concept to the jury. Ex: Charts
5. Stipulations: often parties will stipulate to a lot of facts. Suing Toyota for seat belt
malfunction, and one element you would have to prove is that Toyota
manufactured the item. If that is the "car make", then it will be stipulated.
6. Judicial Notice: Substitute for evidence where judge instructs jury to accept
as true certain facts without the necessity of formal proof.
 Confrontation Clause Tips

Criminal Cases ONLY
12
1

Sixth Amendment – gives the criminal defendant the right “to be confronted with the
witnesses against him.”
 Issue – How do we reconcile the Sixth Amendment with allowing hearsay in a criminal
case when a declarant is unavailable or does not testify at trial?
 Confrontation Clause is only potentially an issue when evidence is offered against
a criminal defendant.
 3 simple rules from Crawford v. Washington
 1. The prosecution may introduce non-testimonial hearsay as long as those
statements comply with the hearsay rules. In other words, the Sixth Amendment
does not limit the admission of non-testimonial hearsay.
 2. The prosecution may introduce testimonial hearsay if the statements comply with
the hearsay rules, and the declarant is available as a witness to cross-examine.
 3. If the hearsay statement is testimonial and the declarant is unavailable at trial, the
prosecution may offer the statement only if the defendant had a prior opportunity to
cross examine the declarant.
 Difference between “testimonial” and “non-testimonial”
 Testimonial defined – while there is no comprehensive definition of testimonial, it is
described as a solemn declaration or affirmation made for the primary purpose of
establishing or proving some fact for use later in a criminal prosecution.
12
2
 Examples of “testimonial” statements (these share one common characteristic – they
are all statements made under circumstances which would lead an objective witness
reasonably to believe that the statement would be available for use at a later trial):

Preliminary hearing testimony

Testimony before a grand jury

Former trial testimony

Statements made during police interrogations

Factors to consider
 Statements made solemnly or under formal circumstances are more likely to be
testimonial than casual statements.
 Statements to law enforcement agents or other government employees are more likely
to be testimonial than those to private parties.
 Statements made with a primary purpose to prove a fact are more likely testimonial.
 Ongoing Emergency situation –

generally, statements are non-testimonial when made in the course of police
interrogation under circumstances objectively indicating that the primary purpose
of the interrogation is to enable police assistance to meet an ongoing emergency.

The Confrontation Clause is NEVER an issue with the following hearsay rules:
 Rule 1002. General Rule (Best Evidence/Original Writings Rule)
12
3

An original writing, recording, or photograph is required in order to prove its
content unless these rules or a federal statute provides otherwise.

To prove the content of a writing, recording, or photograph the original is required
except when provided by rule or statute

Big difference to Federal v AL
o AL: best evidence applies to writings only.

Ranks of best evidence
o 1. Original
o 2. Copy
o 3. Testimony

Duffy Case (Best Evidence Rule)
o Rule: The original must be produced only when the court determines in its
discretion that the policy consideration behind the best evidence rule requires
that evidence that is both a chattel and a writing be treated as a writing.
o Elements and 3 Questions Rule to see if Best Evidence Rule applies
-
1. How complicated is it?
*
More complicated the more likely the best evidence rule is to be
applies
*
1. How central to the case?
*
2. How critical is it?
*
The policy consideration underlying the best evidence rule is the
concern that precision in presenting the exact words contained in a
writing is important for determining the rights of the parties and that
there are inherent risks of error involved in reproducing the writing by
handwriting, typewriting or oral testimony. To avoid these risks, the
12
4
Rule requires that the original writing be produced unless the original
is unavailable.
*
-
2. Are they proving the content of the writing, recording or photograph
*
Gonzales Case
-
Rule: The best evidence rule is applicable only when a party
seeks to prove the contents of documents or recordings
-
Reason: The best evidence rule is applicable only when a party
seeks to prove the contents of documents or recordings. The rule
“does not set up an order of preferred admissibility, which must be
followed to prove any fact.” In this case, the best evidence rule
does not apply. The prosecution is not seeking to prove the
contents of the tape recordings, meaning the actual sounds in the
recordings. If it were, then the best evidence rule would apply and
the tape recordings themselves would have to be introduced. On
the contrary, the prosecution is seeking to prove the contents of
the conversations. The prosecution is permitted to do this via the
law enforcement agents’ testimony. The tape recordings would be
admissible as well to prove the contents of the conversations, but
are not necessary because the best evidence rule does not apply.
*
Asking about the content of the writing, recording, or photography
-
Best evidence rule does Not apply to personal knowledge of a
witness.
-
3. What is an/the original ?
*
Def. below
 Rule 1001(d). Definition of “Original”
12
5

An “original” of a writing or recording means the writing or recording itself or any
counterpart intended to have the same effect by the person who executed or
issued it. For electronically stored information, “original” means any printout--or
other output readable by sight--if it accurately reflects the information. An “original”
of a photograph includes the negative or a print from it.
 Rule 1001(e). Definition of “Duplicate”

A “duplicate” means a counterpart produced by a mechanical, photographic,
chemical, electronic, or other equivalent process or technique that accurately
reproduces the original.
 Rule 1003. Admissibility of “Duplicate”

A duplicate is admissible to the same extent as the original unless a
o 1. genuine question is raised about the original's authenticity or
o 2. the circumstances make it unfair to admit the duplicate.

 Rule 1004. Admissibility of Other Evidence of Content

An original is not required and other evidence of the content of a writing,
recording, or photograph is admissible if:

Exceptions
o 1. (a) all the originals are lost or destroyed, and not by the proponent acting in
bad faith;
o 2. (b) an original cannot be obtained by any available judicial process;
o 3. (c) the party against whom the original would be offered had control of the
original; was at that time put on notice, by pleadings or otherwise, that the
original would be a subject of proof at the trial or hearing; and fails to produce
it at the trial or hearing; or
12
6
o 4. (d) the writing, recording, or photograph is not closely related to a
controlling issue.

There are many statutes out there that state a certified copy of a report is
admissible

The doctrine of degrees of secondary evidence
o The Secondary Evidence Rule further states that the content of a writing must
"be proved by otherwise admissible secondary evidence." (§ 1521(a).) The
phrase "otherwise admissible" indicates that a writing "that passes muster
under the secondary evidence rule is not necessarily admissible."
 Rule 1005. Copies of Public Records to Prove Content

The proponent may use a copy to prove the content of an official record--or of a
document that was recorded or filed in a public office as authorized by law--if
these conditions are met: the record or document is otherwise admissible; and the
copy is certified as correct in accordance with Rule 902(4) or is testified to be
correct by a witness who has compared it with the original. If no such copy can be
obtained by reasonable diligence, then the proponent may use other evidence to
prove the content.
o The record must otherwise be admissible and certified through certificate or
testimony.

Certified copy of public record will get by
o 1. Authenticity
o 2. Hearsay
o 3. Best evidence rule
 Rule 1006. Summaries to Prove Content
12
7

The proponent may use a summary, chart, or calculation to prove the content of
voluminous writings, recordings, or photographs that cannot be conveniently
examined in court. The proponent must make the originals or duplicates available
for examination or copying, or both, by other parties at a reasonable time and
place. And the court may order the proponent to produce them in court.

This rule is the pathway to use a chart or other summary

4 Elements
o 1. It only applies to voluminous material
-
If it is large amount and judge believes it will save time
o 2. The underlining material must be admissible
-
Ex. Business records (have to be admissible but don’t have to be
introduced into evidence)
o 3. The court can order the proponent to produce the underlining information in
court.
o 4. A foundation needs to be established to be accurate
-
The person who prepared the chart
 Privileges




 801(d)(1) – Prior Statements by Witness. For this rule to apply, the declarant must be
on the stand and subject to cross-examination, which satisfies Crawford.
12
8
 801(d)(2) – Admissions of a Party Opponent (opposing party statement). The
Supreme Court has said the defendant may not complain about confronting himself or
others speaking on his behalf.
 803(5) – Past Recollection Recorded. This only applies if the declarant is on the
stand, which satisfies Crawford.
 804(b)(1) – Former Testimony. This testimony is only admissible if the criminal
defendant had an opportunity and similar motive to cross-examine the declarant on
the prior occasion, which satisfies Crawford.
 804(b)(2) – Dying Declaration. The Supreme Court has “grandfathered” this exception
to within the Confrontation Clause.
 804(b)(6) -- Forfeiture by Wrongdoing. The defendant waives his right to
Confrontation rights by intending to make the witness unavailable.
 The Confrontation Clause is RARELY an issue with the following hearsay exceptions:
 Rule 803(4) – Statements Made for Medical Diagnosis or Treatment. These
statements typically are non-testimonial because they are made to private parties and
the declarant would not expect them to be used in court.
 Rule 803(6) – Business Records.
 803(7) and (10) – Absence of Business Records and Public Records. The absence of
an entry is not a statement, so it is not testimonial. But if the witness searches the
records to provide evidence for the government, a statement declaring the absence of
those records could be considered testimonial.
 Rule 803(17) – Market Reports and Commercial Publications.
 Rule 803(18) – Learned Treatises.
 The Confrontation Clause most commonly arises with the following hearsay
exceptions:
12
9
 803(1) and (2) – Present Sense Impressions and Excited Utterances. The
Confrontation Clause is triggered when these statements are made to law
enforcement agents for the purpose of creating evidence for trial. They usually will not
present a Confrontation Clause problem when made to a private party or to law
enforcement to assist with an ongoing emergency.
 803(3) – Statements of Mental or Physical Condition. Under some circumstances,
such as when made to law enforcement agents gathering evidence for prosecution,
these statements are testimonial.
 803(8) – Public Records.
 803(16) – Ancient Documents.
 804(b)(3) – Statements Against Interest. Those made to government officials could be
testimonial.
 807 – Residual Exception.
13
0