Evidence Outline:
By: Elizabeth Frederick
Introduction:
 Definition of Evidence: Materials from which inferences may be drawn as basis of proof of truth
or falsity of fact in question.
 The Litigation Proof Triangle (3 things that constitutes a case)
o Substantive law – The substantive law within a particular field – ex. Torts.
o Procedural law – Civil Procedure & rules of civil procedure.
o Evidence – An attorney must know what they must prove and how they prove it in court.
Four Major Topics in Evidence:
 Relevance
o Overriding theme in Evidence. Many things come down to it.
o Study of Relevance will occupy 30% of the study time.
 Examination of Witnesses
o The rules regarding this.
o 20%
 Opinions and Experts
o Juries rely on expert more than many other witnesses.
o 10%
 Hearsay – want to not let juries hear declarant statements if you can’t examine them.
o And the Exceptions to the Hearsay Rule – 40%
General Layout of a Trial:
 Calling Witnesses:
o When plaintiffs or Government calls witnesses, this is cross examination. After this,
opposing side may cross-examine the witness. Original calling party may redirect to
clarify points.
o Then, defendants will have chance to do the same thing.
 Rebuttal:
o After defendant rests, there may be that certain issues come up that may need to be
responded to. Party that bears burden of proof can put on a rebuttal case.
 Cross examination available here.
 Summation – Summarizing the case.
 Jury instructions.


Offering Evidence
o Generally: Evidence will be in form of oral testimony and tangible exhibits
o Types of Evidence
 Testimonial Evidence: oral testimony given by witness, under oath or
affirmation, in court
 Tangible Evidence:
 “Real” Evidence: the “real thing” involved in the underlying event –
actual murder weapon, written contract, etc.; can be direct evidence or
circumstantial…
o Marking for Identification
o Laying the Necessary Foundation
o Offering Exhibit into Evidence
o Securing an Express Ruling on the Record
o Showing or Reading the Exhibit to the Jury
Demonstrative Evidence: not the “real thing” involved in the case; visual or audiovisual aid for
the fact finder; tangible material used for explanatory or illustrative purposes only; anatomical
model, chart, diagram, etc.
o
o
o
o



Selected Demonstrative Evidence
Prepared or Reproduced Demonstrative Evidence: risk of fabrication; law seeks to
minimize this risk –
must show exhibit not significantly different from those that existed at time; and
must show exhibit is “true and fair rep.” of what it purports to show
Objections to Evidence: It is up to the contending lawyers, and not the judge (umpire), not only to
make objections but to support them with reasons
o Reasons to Forgo Objecting
 No need to complain where it may be advantageous to efficiency or poses no
risk of prejudice
 Do not want to underscore hurtful testimony
 Do not want to create impression of being excessively obstructive or create
distrust
 Material may favor client
 The objectionable evidence may ‘open the door’ for more important evidence
later on
Time for Objecting to Testimony: Waiver
o Timely Objection: objection must be interposed b4 evidence was received [b4 witness
answered, or exhibit was shown to fact finder]; Objection must be made as soon as basis
for it becomes apparent
Offer of Proof: presentation of evidence for the record outside the jury’s presence usually made
after the judge has sustained an objection to the admissibility of that evidence; must descend into
specifics and be made in good faith;
o Function:
 Permits the trial court to make a fully informed, and correct ruling on the
objection
 Three Parts: evidence itself; explanation of the purpose for which
evidence is offered; and an argument supporting admissibility
o Renewing Offers of Proof: happens when an offer, defective when first made, is
thereafter perfected
COMMON EVIDENCE THEMES
1. Foundation: Any piece of evidence, for the most part, must be produced by a witness and a foundation
must be laid showing that the evidence is what it purports to be (authentic & legitimate) before that
evidence may be introduced
(1) How to Lay the Foundation
i. Witness Has Knowledge of the Event;
ii. Establish the Chain of Possession;
2.
Role of Judge and Jury: theme pervading evidence
3.
Distinction b/t Admissibility of Evidence (Judge) vs. Weight of Evidence (Jury) vs. Sufficiency:
i.
Weight: jury must decide how much weight to give to the evidence that is admitted
1.
Defined: jury’s mastery over the proof – credibility, strength, etc.
ii.
Opinion: Judge does not provide opinion as to value of evidence; makes rulings on
admissibility (Rule 104(a))
iii.
Sufficiency: Preponderance of Evidence vs. Beyond a Reasonable Doubt
4.
Recurring Issues in Rules of Evidence:
a. What matters and materials should be admitted at trial for the fact finder to consider; and
b. What use can properly be made by the fact finder of those matters and materials that are ruled
admissible
RELEVANCE
Relevance – Is this evidence helpful in proving a proposition or truth?
 Rule 401 says: “Relevant evidence” means evidence having any tendency to make the existence of
any fact that is of consequence to the determination of the action more probable or less probable
than it would be without the evidence.
Two Ideas for Consideration in Relevance:
 Does This Evidence have ANY tendency to advance your case?
o Ex. Tattoos with violent imagery? Bulletproof vest in an alleged drug trafficker’s home?
Defendant speeding a few miles from a car accident?
 All of these have some tendency to advance the cases.
o Relevance is what logical inferences would make of it. If the logical inference is
something that’d support or disprove a fact or issue, it’s relevant.
 Is this Evidence Properly Provable or of ANY Consequence?
o Ex. Evidence of Contributory Negligence at Workman’s Compensation Trial. Evidence is
NOT RELEVANT. Workman’s Comp is a strict liability issue and Contributory
Damages does not matter like in ordinary Tort Actions.
o Ex. Defendant offers evidence at trial that girl he had sex with made him believe she was
of age. NOT RELEVANT. Statutory rape is strict liability.
 But, if Defendant offers evidence that he refused her invitation to take her to the
prom, then it is relevant because there is an inference that she had the motive to
make up the claim.
Degree of Probative Value: Any evidence, however negligible, is admissible if there is any probative value
to the evidence.
 Union Paint & Varnish v. Dean:
o FACTS: Customer took cans of paint, found one can defective and stopped payment on
the rest, now suing for breach of warranty.
o HOLDING: Previously defective can was relevant. It shows that customer was
reasonable in refusing second batch because his experiences were bad with the first batch.
Resolution of a Primary Issue: Relevance of evidence will be determined by whether the evidence
reasonably tended to help resolve the primary issue at trial.
 Knapp v. State
o FACTS: Defendant kills cop. Claims that he heard from someone in the neighborhood
that the cop beat an old man to death. Prosecution seeks to introduce evidence that old
man died due to senility.
o HOLDING: Evidence is relevant. Testimony makes it less probable that defendant heard
someone tell him old man was beaten to death.
Disputed Fact: The fact to which the evidence is directed need not be in dispute (i.e. background evidence
which helps facilitate a better understanding of the proceeding)
Rule 402:
 All relevant evidence is admissible – unless it is one of the exclusions or exceptions under the
Constitution, Statutes, or Federal Rules of Evidence.
o Constitutional excusions – 5th Amendment, 4th Amendment, etc.
o Statutes – For example, federal statutes on wiretapping or other statutes.
o Evidence excluded by the FRE, like privileges, character evidence, or hearsay.
 Corrollary: Evidence that is not relevant is NOT admissible.
Evidence:
 Direct evidence – something that proves the issue on the case. (Ex. Eye witness testimony,
confession.)


Real Evidence – Something that you can take into a courtroom and have the jury touch. Tangible
evidence. (Ex. Murder weapon).
Circumstantial Evidence: Evidence of a subsidiary fact from which the existence of the ultimate
fact may be inferred, and not based on personal knowledge or observation.
o Inference: Conclusion reached by considering other facts and deducing a logical
consequence from them.
o Circumstantial cases may be powerful.
o Ex. Res Ipsa Loquitor cases.
Rule 403: Exclusion of relevant evidence is permissible if its probative value is substantially outweighed
by danger of (1) unfair prejudice, (2) confusion of the issues, (3) misleading the jury, (4) considerations of
undue delay, (5) waste of time, or (6) needless presentation of cumulative evidence
 Generally, the last analysis taken by judges before allowing or excluding evidence.
 Judge’s discretion is broad when it comes to admissibility or exclusion.
Rule 403 Considerations:
 PROBATIVE VALUE? – What is the probative value? How clear is it? Is there a strong logical
link between the evidence and what it tries to prove? How positive is the witness? Is there a less
prejudicial alternative?
 UNFAIR PREJUDICE: Prejudice must Substantially outweigh the probative value. Prejudice
comes in the form of tendency to form decision based on improper basis (ex. An emotional basis –
pictures of murder victims).
o Creative judges sometimes limit gruesome photos or make them black and white.
o Confusion: Third party guilt evidence – if it’s just speculation, then you’re confusing the
jury.
Doctrine of Limited Admissibility:
 Relevance Depends upon Purpose: Purpose for which evidence is introduced must be known.
What is relevant to one purpose may be irrelevant (or inadmissible) for another purpose.
 RULE:
o Evidence that is inadmissible for one purpose may be admissible for another so long as
there is a Limiting Instruction given to the jury.
 Shall restrict the evidence to its proper scope.
 Must consider: probable effectiveness or lack of effectiveness of
limiting instruction. _
 However, there is a problem because how can a jury be prevented from
thinking of any particular bit of evidence if it is introduced?
 Rule 105 – When evidence which is admissible as to one party or for one purpose but not
admissible for another, the court, upon request, shall restrict the evidence to its proper scope
and instruct the jury accordingly.
Rule 403 – Unfair Prejudice:
 Ballou v. Henri Studios:
o FACTS: Ballou sues for negligence by Henri studios in death of decedent. Henri Studios
introduce blood-alcohol level of .24. Ballou introduces testimony by nurse saying she
didn’t smell alcohol on decedent. Trial Judge gives more credibility to nurse than blood
test, kicks evidence of Ballou’s intoxication as prejudicial.
o RULE:
 Judges can’t determine the credibility of evidence, that is for a jury. Before
kicking evidence out due to prejudice, he must take it as true.
 Not enough that evidence is prejudicial, but it must be very unfairly
prejudicial.
Relevance of Mathematical Probability Evidence:





There must be Direct Evidence. Cannot make the entire case based on Mathematical Probability:
Smith v. Rapid Transport
o FACTS: Woman is driving, got knocked off the road by a bus. There’s an 90% chance
that it was a Rapid Transit Bus, but no evidence otherwise besides that they have a lot of
routes.
o RULE: You need direct evidence. Cannot directly rely upon the mathematical probability.
We require direct evidence because we want verdicts to be accurate and acceptable.
People v. Collins:
o FACTS: Bank robbery perpetrated by man and woman. Eye-witnesses say it’s an
African-American man with a beard and mustache and a white woman who was blonde
with a ponytail and they were in a yellow convertible.
o RULING: LA’s population is huge and the variables can be dependent sometimes. Plus,
not sure where numbers are coming from. No good.
Good uses of probability evidence:
o Guy is a recording artist. Has agreement with agency to promote records. Guy wants
mathematician’s statistical model to show that a record that went to top 100 would’ve
moved up except for lack of advertising.
 Probative that agency was less than vigorous in promoting the record.
Authentication: before any writing (or secondary evidence of its content) may be received into
evidence, proponent must offer a foundation of evidence sufficient to support a finding that the
document is genuine and is what it purports to be (Rule 901)
(1)
Exception: authentication not required where
a. genuineness of document is admitted in pleading or by other evidence, or
b. adverse party fails to raise a timely objection for lack of foundation
(2)
How to Authenticate: by direct or circumstantial evidence, or the documents
may be ‘self-authenticating’
(A)
Oral Statements: although not documents or real evidence, oral statements require
authentication as to the speaker’s identity
(B)
Examples of Authentication Methods (902(b)):
i. Testimony of Witness With Knowledge,
ii. Nonexpert Opinion on Handwriting,
iii. Comparison by Trier of Fact or Expert Witness,
iv. Distinctive Characteristics and the Like,
v. Voice Identification,
vi. Telephone Conversations,
vii. Public Records or Reports,
viii. Ancient Documents or Data Compilation,
ix. Process or System, Methods Provided by Statute or Rule [Rule 902(b)]
(C)
(D)
Subscribing Witness Not Necessary: Testimony of a subscribing witness unnecessary to
authenticate a writing unless required by the laws of the jurisdiction whose laws govern the
validity of the writing (Rule 903)
Ways to Authenticate Handwriting:
a. Witness testifies who is familiar with person’s handwriting (direct evidence)
[Rule 901(b)(2)];
b. Witness observed the letter being written;
c. Handwriting expert; or
d. Self-authenticating writing (something in the subject matter of the
document indicates who the writer is)
e.
(E)
[maybe] Showing comparisons of handwriting to the jury and letting them
decide
Authentication of Oral Statements: authentication consists in identifying the speaker;
i. Lay opinion testimony to authenticate an oral statement, witness must testify that he
or she is acquainted with the person’s voice
Character Evidence:
 Generally: If you can besmirch the character of your opponent, you have a better chance of
winning. Judges are very cautious about allowing character evidence into a case.
 Definition: Evidence of a person’s “general propensity” (human trait) towards honesty, violence,
etc.


Rule 405:
o (a) In all cases in which evidence of character or a trait of character is admissible, proof
may be made by testimony as to the reputation or by testimony in the form of an opinion.
 On cross-examination, inquiry is allowable into specific instances of conduct.
o (b) Where character or trait is an essential element of charge, claim or defense, proof
may be made of specific instances of that person’s conduct.
Types of Character Evidence: Three Types are Available:
o Opinion: Opinion Testimony by acquaintances (Rule 405(a))
 Witness personally acquainted with the accused.
 Witness knows the accused well enough to form a reliable opinion.
o
Reputation: Testimony as to the person’s reputation in the community (Rule 405(a))
 Witness is from the same community as the accused
 Witness knows the person a substantial period of time.
o
Past Conduct: Character or trait of a character or person is an essential element of charge,
claim, or defense, past specific instances of that person’s conduct may be admissible
(Rule 405(b))
Generally, Character Evidence can't be used except for IDVOXS
I- character is the ISSUE to be proven - 405(b)
D- DEFENDANT in a criminal case can prove his own character - 404(a)(1)
V- D can prove character of VICTIM in a criminal case - 404(a)(2)
O- OTHER CRIMES - 404(b)
X- on X-EXAMINATION - 607, 608, 609
S- SEX CRIMES (civil and crim) - 413, 414, 415
Fundamental Rule of Character Evidence:
Propensity Rule: Evidence of a character trait is generally inadmissible to show action in conformity with
the trait on a particular occasion. (Rule 404(a)) (i.e. that D is a bad person or that he had propensity to
commit the crime charged.

Cleghorn v. NY Central H. River Ry. Co
o FACTS: Passenger is injured when on train due to negligent rail switching. Switchman is
habitually drunk, but no evidence of actual drunkenness.
o RULE: Evidence of a person’s character or trait of character is not admissible for the
purpose of proving action in conformity therewith on a particular occasion.
 Not enough to demonstrate that the person acted in accordance to a particular
trait on a particular day.
Another Way to Admit Character Evidence:


Federal Common Law: Criminal defendants may allow defendants in a criminal case to bring on
character witnesses to testify to Reputation.
Rule 404(a)(1): Evidence of character trait offered by accused or by prosecution to rebut character
evidence are admissible.
o Accused may offer evidence of pertinent trait of character.
o Prosecution may offer evidence in rebuttal of accused’s evidence of character.
 Opening The Door: When defendant puts character at issue through reputation
evidence, prosecution may ask witnesses if they are aware of specific bad acts
relating to defendant.
 Prior arrests can’t be asked about. Lots of reasons why arrests may be
bad.
 Prosecutors may use arrests to test character witness’s standard for
information (i.e. if witness didn’t know of defendant’s arrest, maybe
he’s not knowledgeable about the defendant).
 Specific Instances must be in good faith.
o

If accused offer evidence of a trait of character of alleged victim, prosecution may offer
evidence of same trait of character of the accused.
Michelson v. United States:
o FACTS: Michelson charged with bribing a federal agent. He admits he bribed, but claims
entrapment.
o RULE: Criminal defendants can call Character Witnesses for his “honesty” and “law
abidedness”.
 Have to lay foundation. (show witness knows people who the accused is, how
long known the accused, heard the accused did this…)
 Prosecutors can call negative character witnesses after defense opens the door.
 Can use specific instances – Rule 405(a).
Victim’s Character in a Criminal Case:
 Rule 404(a)(2) – Following are admissible.
o Evidence of pertinent character of alleged victim offered by accused
o Or evidence by prosecution to rebut
o Or evidence of peacefulness of character of alleged victim so they wouldn’t be first
aggressor.
Evidence of Past Crimes (Bad Man Evidence):
 Rule 404(b) are Crime Evidence, which, in certain instances, allow prosecutors to provide
evidence that defendant has done bad things.

Rule 404(b) – Evidence of other bad acts are not admissible to show bad character.
o May be admissible for other purposes such as:
 Proof of motive
 Opportunity
 Inent
 Preparation
 Plan
 Knowledge
 Identity
 Absence of mistake or accident
o As long as on request by accused, prosecution shall provide reasonable notice.
Acronym: KIPPOMIA – Bad Man evidence can be introduced to demonstrate:









K - Knowledge
I - Intent
P – Preparation: for example, evidence that D stole a car is admissible to show D’s preparation to
facilitate bank robbery
P – Plan: (common scheme or plan; must be unique / uncommon in the elements): Prove
existence of a larger plan, scheme, or conspiracy, of which the crime on trial is a part
o Guideline: must be reasonable similarity showing a MO from which the jury could
logically infer that the commission of the earlier crime tends to show that the D was
likely to have committed the crime charged
O – opportunity
M – Motive: not an element of a crime, but it’s important to proof – suggests a person is more
likely to have done something – big piece of circumstantial evidence because it allows the
inference for mens rea + actus reus
I – Identity: modus operandi in both crimes must be similar and unusual enough to indicate that
the same person perpetrated both - extrinsic acts must bear a high degree of similarity to mark
them as the handiwork of the accused (United States v. Carillo) “SIGNATURE”
o Facts: evidence of two past drug sales where D used cocaine filled balloons to help
establish D’s identity as a drug dealer was inadmissible b/c use of balloons as the drug
package were not so unique to mark them as a signature or handiwork of D alone
A – Absence of mistake or accident
What does Rule 404(b) do?
 Cannot be used to show defendant has bad character. This is reversible error.
o Steps:
 Have to show that purpose is relevant. Prove any of the elements in the
Acronym
 After finding the probative value of the case, then must balance against unfair
prejudice.
What is the test to use Rule 404(b)?
 Relevance on a purpose other than proving the defendant’s bad character.
 Evidence must contain probative value not substantially outweighed by undue prejudice.
(Mollineaux Evidence in NY)
Signature Crimes under 404(b):
 US v. Carrillo:
o FACTS: Defendant was tried for narcotics sale. Defendant says mistaken identity.
Prosecutor brings up past instances of narcotics sales.
o RULE: In order to establish identity/signature crimes, there must be sufficient similarity
and sufficient uniqueness to mark the crime as the work of the accused.

Ex. If man kills and rapes women by them that his wife was kidnapped, it’s
probably so unique that it’s probably allowed.
Proving Past Crimes: Require at least a preponderance or clear and convincing evidence.
 Tucker v. State:
o FACTS: Tucker charged with killing Omar Evans. Prosecutor found another incident
with identical circumstances, but no charges were filed against Tucker.
o RULE: Need direct evidence connecting defendant to crimes. Need clear and convincing
evidence (not Federal Test, but some state) or more than a preponderance of evidence to
establish.
 There has to be reasonable notice.

403 Considerations: strength of evidence as to commission of other crime,
similarities between crimes, interval of time elapsed between crimes, need for
the evidence, efficacy of alternative proof, degree to which evidence probably
will rouse the jury to overmastering hostility
Preliminary Questions (Rule 104(a)): Preliminary questions concerning qualification of person to be a
witness, privilege or admissibility of evidence determined by court. Court not bound by rules of
evidence except w/ respect to privileges
 Burden of Proof: a court need not make a preliminary finding that the acts actually occurred,
rather it need only find that the evidence is sufficient to create a permissive inference that the
accused committed the act (Huddelston)
o Facts: D admitted possession of stolen property, but claimed that he did not know the
tapes were stolen. Evidence introduced to show that D had previously sold bulk number
of televisions on one occasion, and negotiated to sell appliances on another. Admitted.

Huddleston v. US
o FACTS: Guy admitted to possession of stolen property, but claims he did not know tapes
were stolen. Evidence introduced to show D had previously sold bulk number of TV and
appliances on another. This is admitted.
o RULE: Rule 104(a) Preliminary Questions. Judge may determine if privilege,
qualifications of witness, or admissibility of evidence.
 Judge uses Preponderance of the Evidence for Admittance.
 Judge is not bound by the rules of Evidence in making Preliminary
Determination.
Tendancies & Habit Evidence:
 Generally: “Habit” evidence refers to a person’s routine reactions to particular situations.
o Must be routine and frequent and repetitive that a judge can label it a habit and label the
conduct as habitual.
o Ex. Lawyer’s habit in making a will. University’s habit in sending out certain letters.
Habitual dress of an individual

Rule 406: Evidence of a habit of a person or routine practice of organization, wether
corroborated or not and regardless of presence of eyewitnesses, is relevant to prove the
conduct of the person or organization on a particular occasion was in conformity with the habit
or routine practice .
o
Distinctions from Character Evidence:
 Character t ypically limited to criminal cases, habit may be used in civil cases.
 Character evidence limits specific instances of conduct; Habit normally requires
specific instances
 In character, you want to avoid propensity; in Habit, you want to show
propensity.
Character Evidence vs. Habit Evidence
Character
“Sally is always in a hurry”
“Bart is a drunk”
“Jeff is a careless driver”
Habit
“Sally always takes two stairs at a time”
“Bart stops by the Black Bear every Friday and
drinks 4 beers”
“Jeff always runs the stop sign at 232 nd Street”
Perrin v. Anderson:
 FACTS: Deceased’s family sues cop for killing a man. Cops bring dozens of cops testifying that
deceased always gets violent with cops.

RULING: There was a habit in this case by the deceased to violently resist cops. It’s similar to
reputation or opinion evidence.
Halloran:
 FACTS: Halloran injured when Freon can explodes. Testimony that he’s immersed Freon cans in
hot water before to get it flowing (dangerous).
 RULING: There was a habit of Halloran to immerse Freon with immersion heating coils to heat it
up.
o Must convince a judge that person did it enough times before it exploded. Once isn’t
enough.
Difference Between Halloran and Other Types of Negligence:
 Difference between Halloran and a “habit” of jumping over cars or running on racetracks:
o In Halloran, Halloran was in complete control of the circumstances involved.
o It cannot be a habit if others contribute to the conduct you engage in.
o Must have enough instances to allow a court, as a matter of law, to say because of the
repititve nature of the conduct, it allows us to preduct what happened today.
Prior Similar Happenings:
 Generally: To prove something, Plaintiff may introduce evidence of other incidents involving the
same or similar objects, subject to Rule 403.
o Common Law: this is a Common Law Rule.

Simon v. Kennebunkprot:
o FACTS: Old lady slipped on sidewalk and injured herself. Plaintiff’s lawyer tries to show
that it happened so many times that there is a defect in the sidewalk and that it’s the fault
of the town.
o RULE: Evidence of Prior Similar Happening may be relevant and admissible for
purposes of showing a defective or dangerous condition, notice thereof, or causation on
the occasion in question.
 Foundation:
 Someone has seen it happen a lot.
 There has to be substantial similarity between condition when plaintiff
fell and when other people fell at that place.
Other Prior Similar Happening Rule may occur:
 There was a condemnation proceeding. Want to get price. Can show other houses prices in the
neighborhood.
 Gas main break a few miles away in a particular locale and some trees near the gas main are
damaged. You live two miles from the gas break. You want to prove that the gas break occurred
two miles from you. Can you prove foliage damage if your neighbor a mile away sustained foliage
damage?
o This is continuing condition.
 Why can’t you admit evidence that yesterday he was driving at 100 MPH? It’s character evidence,
essentially. However that he was driving fast a few minutes ago, then it’s okay.
 This is an idea of a continuing condition.
Subsequent Precautions:
 Generally: Proof of subsequent remedial action to make a spot more secure is not admissible
evidence to demonstrate that the condition was dangerous, that there was negligence or that the
person believed it to be dangerous.

Rule 407: When subsequent remedial actions are taken after an event that’d have made the event
less likely, evidence of subsequent remedial actions are not admissible to prove negligence,
culpable conduct, defect, or need for warning.
o
HOWEVER: May be used to prove: ownership, control, feasibility of precautionary
measures, or for impeachment.
Exceptions: evidence of subsequent measures is admissible to prove –
1. Prove Ownership / Control [if Controverted also],
2. Feasibility of Precautionary Measures, if controverted, or
1. unless it is contended that the measures were not physically, technologically, or
economically possible under the circumstances at the time, subsequent remedial
measures not admissible (Tuer v. McDonald)
A. Impeachment: (e.g. D’s engineer testifies that D’s stairway was safe and proper at the time P fell;
evidence that this engineer personally ordered installation of railing of stairway after accident is
admissible as tending to impeach his testimony)
i.

Tuer v. McDonald:
o FACTS: Hospital prescribes anticoagulant to man, but stops prior to surgery because of
fears of puncturing carotid artery. Emergency occurs and doctors are called away and
man dies because he’s not on Heparin anymore. Afterwards, hospital changes protocol on
Heparin.
o RULING: General Rule of 407, proof of subsequent remedial change of protocol is
generally not admissible.
 Especially where in cases where there is a tradeoff and a judgment call was
made.
Rationale for Subsequent Remedial Actions Rule:
 We want to encourage individuals to make things as safe as they possibly can.
 It doesn’t logically show that the condition was dangerous or the person believed it to be
dangerous.
 It discourages people from fixing things up otherwise.
 This is bad social policy.
 (Policy weighs against probative value here).
Posner Case:
 FACTS: Guy was riding a motorcycle and he was checking his struts and he loses control. Said
struts were too narrow. Afterwards, Honda changed the design and added a few inches to the struts.
 RULING: There was a tradeoff here, as in McDonald. Judgment call was made.
Controverting Feasibility:
 Anderson v. Malloy:
o FACTS: Motel guest sues motel for being raped, sued because motel was negligent.
Wanted to show that after rape, motel installed peepholes on the doors and chained locks.
 Manager said previously that the precautions creates a false sense of security.
o RULING: If Manager said it’d give a false sense of security and afterwards installs
peepholes and chain locks, then feasibility was controverted.
Offers in Compromise:
 Generally: Offers in compromise or that one paid money in settlement of a disputed claim is NOT
ADMISSIBLE to fix liability between parties.

Rule 408: Evidence of furnishing, offering or promising to furnish or accepting or promising to
accept valuable consideration in compromising a claim that was disputed is not admissible to
prove liability for or invalidity of a claim or its amount.
o Conduct or statements made in compromise are not admissible. But does not exclude
evidence that is discoverable otherwise.
o

Not exclude evidence to prove bias, prejudice, negativing a contention of undue delay or
proving effort to obstruct criminal investigation or prosecution.
Rational for Exclusion:
o Lack of Relevancy: offers don’t necessarily reflect liability – litigants trying to avoid
costs of trial
o Danger of prejudice: juries may attach undue weight to such offers
o Implied Agreement: parties impliedly agree that settlement negotiations are to be without
prejudice to their positions
o Public Policy: it is policy of the law to encourage settlement of disputes w/o litigation to
promote judicial economy. If either party could attempt to prove liability on basis of
offers made by other, such settlements would be discourage

Davidson v. Prince:
o FACTS: Cow in middle of road., Davidson injured – he sues. Defendant wants to
introduce a letter where Davidson said the cow was 10 feet away. Plaintiff says that it’s
not admissible because it was during negotiations.
o RULE: Even if a statement is made during negotiation, it is admissible to inform the
defendants as to plaintiff’s facts. It wasn’t made in offering any settlement.
 Person seeking to exclude must show that discussion were made in
“compromise negotiations”
Other exceptions:
 Impeachment
o Even though offers of compromise are excluded, but if the settlement statements differs
from statements in the court, there may be an impeachment exception.
 Not stated in the Rule of 408, but implied in Decision.
 Bias or Prejudice
o Ex: A sues B for personal injury from auto accident. A calls witness C. Witness C gives
testimony that A was driving within the law when B comes along and negligently caused
injuries.
o C was in the car and was injured with A. C sued A and settles.
o B wants to cross-examine C for the settlement with A.
o Yes.
o Isn’t C biased towards A?
 C has a motive to lie to help A. The motive arise from the fact that C is getting
lots of money from A. He has a motive to shave testimony. Settlement may bias
B to help A.
 Undue Delay:
o Person claims that the defendant has been unduly delaying.
o The peson can say, “We’re not delaying, we’re trying to settle.”
 Proving effort to obstruct a criminal investigation or prosecution.
o Making settlement to be a bribe to keep person quiet.
Payment of Medical and Similar Expenses:
 Evidence of furnishing or offering or promising to pay medical, hospital, or similar expenses
occasioned by an injury is not admissible to prove liability for the injury.
o We want to encourage people to do the proper social thing.
 Rule 409.
1. Policy Reason: payment or offer is usually made from humane impulses and not from an
admission of liability, and to hold otherwise would tend to discourage assistance to an injured
person
a. Note: rule does not extend to conduct or statements not a part of the act of
furnishing or offering or promising to pay
2. HYPO: A gets in accident with B. A says “I’m sorry, it was my fault, let me pay your
medical expenses.” Later, there is a trial. Should the judge admit A’s statement?

Answer: statement relating to the offering to pay medical expenses is not admissible
under Rule 409. But, statement relating to admission of fact would be admissible
since it was not made in compromise.
Guilty Pleas:
 Rule 410: Evidence of following is not admissible against defendant who made the plea or was a
participant or was participant in pleas if:
o Plea of guilty was withdrawn .
o Plea of nolo contendere (no contest)
o Statements made under Rule 11 of FR of Crim Pro.
o Any statements made in course of plea discussions that does not result in plea of guilty or
results in guilty plea later withdraw.
 However, admissible where:
o Contemporaneous statements when a statement in same plea discussion was introduced.
o Perjury or false statement criminal case if the statement in plea was on the record and in
presence of counsel and under oath.

Rule 410 does not deal with Guilty Pleas, because these are admissions, but rather specialized
forms of pleas.
Exceptions:
 Withdrawn Guilty Pleas: withdrawing a guilty plea is a rare occurrence – it’s only permitted
where holding the person to the guilty plea would be unfair
 Nolo Contendre Pleas (No Contest): no criminal conviction follows you; seen frequently in
tax and antitrust cases; some jurisdictions like NY do not permit
 Bankruptcy Statements: Statements made in course of any Chapter 11 Proceeding, or
comparable state procedure; or
 Statements Made During Plea Bargaining: statements made during plea bargaining with a
government / prosecuting attorney are not admissible
a. Rationale: rulemakers wanted to facilitate plea bargaining
b. Limits:
i. Not Law Enforcement Officials: only applies to statements made during plea
bargaining w/ attorney for the government, not plea bargaining with law
enforcement investigators, and
ii. Waive: if prosecutor gets D to waive the protection, statements made during
discussions which are inconsistent w/ D’s testimony can be used (United States
v. Mezzanatto – US 1995)


Doctrine of Completeness: If one party introduces a portion of the statement (evidence), the other
party may introduce the remainder of the statement (evidence) [Rule 410(i), Rule 106] – it’s a rule of
fair play
Acquittals: evidence of an acquittal in a criminal proceeding would not be admissible in a civil action
for the same incident because it would have a low probative value (acquittal does not prove innocence)
and it would have a high potential for unfair prejudice against P (Rule 403 balancing).
(B) Ando v. Woodberry:
 FACTS: Defendant given ticket for failure to signal.
Caused accident. Defendant sued. Plaintiff wants to
enter into evidence the guilty plea to traffic ticket.
 RULE: Where Defendant enters guilty plea, it may be
used as an admission. But it is not conclusive, the
defendant may explain the circumstances surrounding
the plea.
i. Jury may determine weight of the plea.
Trade Usage:
(a) Generally: You must establish the industry standard to show a violation of trade usage leading to
some theory of negligence (Diaz)
(1)
Facts: P introduced an affidavit from a board certified radiologist that the
hospital deviated from the standard of care for performing these ultrasounds by failing to have
a staff person present and cited two national organizations’ guidelines;
(2)
Held: P failed to establish an industry standard (by showing the practice by
other hospitals), and merely showed industry guidelines that may or may not be followed
(b) Method
a. Custom or Practice: custom or practice has evidentiary value to establish a standard of care in
the industry (Anderson v. Malloy)
(1) Facts: D’s failed to install peepholes in the motel doors; P introduced evidence of
other motels in the area which provided greater security for guests. 8 th Cir. held it
was admissible
b.
Experts: You can show custom or practice through the introduction of expert testimony to
establish the industry standard via ‘real proof’
AKS ASK ASK ASK
Prior Sexual Conduct:
(C) Historically: Before rape shield legislation, a man accused of
rape can claim the victim consented by using evidence of
victim’s reputation for promiscuity.
(D) Now: Federal Rules of Evidence 412 – 414 creates a Rape
Shield around the victim’s past sexual behavior.
(E) Rule 412: The following are inadmissible:
 Evidence offered to prove any alleged victim
engaged in other sexual behavior (past acts)
 Evidence offered to prove any alleged victim’s sexual
predisposition (reputation)
 EXCEPT in Criminal Cases where:
i. Evidence of specific instant sexual behavior
of victim is offered as alternative source of
semen, injury or other physical evidence.
ii. Evidence of specific instances of behavior
by victim consenting to sexual acts with the
accused.
iii. Evidence where it’d violate the
constitutional rights of defendant.
 Etc
(F) Rule 413: Evidence of past sex crimes are admissible.
 Gov must disclose at least 15 days before start of trial.
 Not limit admission or consideration of evidence
under any other rule.
 Hearing must be in camera to afford all parties right
to be heard and to protect privacy.
 All motions are sealed.
(G) Rule 414: Evidence of past child molestation is admissible.
 Gov must disclose at least 15 days before start of trial.
 Not limit admission or consideration of evidence
under any other rule.


Hearing must be in camera to afford all parties right
to be heard and to protect privacy.
All motions are sealed.
State v. Cassidy:
(H) FACTS: Woman has sex with man. Woman makes some
weird statements during sex and then claims rape.
(I) RULING: Evidence of one previous sexual encounter where
woman acted oddly is not sufficient to demonstrate that there
is a pattern of odd sexual behavior.
 If man could’ve brought more instances, might be
able to establish a pattern. But as it stands, no case
here.
 Normally bringable under Victim’s Particular Trait
exception under IDVOX. However, 412 is an
exception to IDVOX.
Olden v. Kentucky:
(J) FACTS: Defendant is charged with kidnapping and rape.
Defense claims victim is fabricating the rape because she has a
boyfriend and she did not want the boyfriend to be suspicious
of being with another man and making up the rape.
(K) RULING: Sometimes accused has Sixth Amendment right to
cross-examine alleged victim regarding her relationship with
other men. Here, defendant should be able to ask about her
cohabitation with another man because it gave her motive to
lie about the nature of the incident.
Examination of Witnesses:
Generally
Rule 611:
(L) (a) Court exercises reasonable control over mode and morder
of interrogating witnesses and presenting evidence so to:
 Make the interrogation and presentation effective for
ascertainment of the truth
 Avoid needless consumption of time
 Protect witnesses from harassment or undue
embarrassment
(M) (b) Cross examination should be limited to the subject matter
of direct examination and matters affecting the credibility of
the witness.
 Essentially: We can impeach a witness to show that
he’s a liar.
 But can’t go onto new matters, that’d confuse the
issue and the jury.
(N) (c) leading questions cannot be used in direct examination.
 Cross-examination or examination of hostile witness
may be by leading questions.
STAGES OF
WITNESS
QUESTIONIN
G
RULES
DESCRIPTION:
Direct
CrossExamination
611(c):
a.
Leading Questions Not Permitted w/ Exceptions
607:
b.
Abolishes voucher rule; any witness underneath 607 may be
called and cross examined
612
(“PRR”
):
611(b)
c.
You can use any cue you want, including 612 documents to
refresh the witnesses recollection
i.
Subject matter of direct exam
and issues of witnesses
credibility
Re-Direct
Direct Examination of Witnesses:
(O) Generally: Witness’ testimony given by party that calls the
witness, bringing out all of the facts that needed to be brought
out.
(P) Form of Questions: Examiner limited to questions calling for
specific responses by witnesses (Who, what, when, where,
why, how?)
(Q) Leading Questions:
 Not permitted – expressly stated in Rule 611(c).
 Policy: May suggest lawyer is incompetent. Don’t
want witness to accept false suggestion>
 Exceptions:
i. Preliminary Background Questioning:
“setting the stage, you are an insurance
salesman, aren’t you?” “You were assigned
to the crime scene, right officer?”
ii. Surprise answers: (Witness testimony at
odds with deposition – similar to hostile
witness in this respect)
iii. Jog a Witness’ Memory (Present
Recollection Refreshed)
iv. Timid or Confused Witness or Child of
Tender Years (Children may be asked
leading questions)
v. Hostile Witness (under Rule 611(c))
vi. Examining Adverse Party (611(c)) –
assumes that adversary wouldn’t be mislead
vii. Any Witness associated with Adverse Party
(Rule 611(c))
Writing Used to Refresh Memory
(R) Generally: Where witness does not remember relevant fact or
information, but possesses additional information, witness
may be shown document or item to jog their memory.
(S) Rule 612: If witness uses a writing to refresh memory while
testifying or before testifying:
 Adverse party is entitled to have writing produced at
the hearing to inspect it, cross-examine the witness ,
and introduce into evidence the portions which relate
to the testimony of the witness.
i. Portions not related to testimony will be
removed.
ii. Any portion withheld over objections are
preserved for appeals court.
Impeaching One’s Own Witness:
(T) Voucher Rule: common law rule that party is not allowed to
impeach their own witness
 Because by calling witness, you vouched for their
credibility.
(U) Modern Approach: Impeachment of any witness by any party,
including party calling the witness:

Rule 607: Credibility of a witness may be attacked by
any party, including the party calling the witness.
i. Rationale: There are situations where a
witness is required by law to prove the
proponent’s case, witness is an adverse party,
or witness is hostile on the stand or
provides surprise testimony – in those
situations, it may be necessary to impeach
one’s own witness.
(V) Chambers v. Mississippi
 FACTS: Defendant accused of murder, calls witness
who confessed to killing the victim previously,
witness now repudiates. Defendant attempts to
impeach by showing prior confession.
 RULING: The accused has the right to confront and
cross-examine any witness who gives damaging
testimony against him under the Due process Clause.
Cross Examination and Impeachment
(W) Generally: To discredit a witness’s testimony , includes
exposing untruthfulness or witness’ mistake.
 Wigmore called it the “greatest legal engine ever
invented for the discovery of truth”.
(X) Effect of Impeachment: Simply because a witness has been
impeached doesn’t mean the jury may disregard the testimony,
the impeachment affects the weight the jury may choose to
give to the testimony.
(Y) Two Methods of Impeachment:
 Intrinsic impeachment—the witness is in chair and
questioning witness and asking them questions to
impeach the witness, and asking them intrinsically.
Intrinsic means as lawyer bringing out defects and
impeaching witness self by asking them the question
 Extrinsic Impeachment—to what extent can I
introduce extrinsic, other, evidence, other witnesses,
to show witness is lying and to discredit the witness,
bringing other evidence and introducing other
evidence, bringing it in. This is time consuming and
adds time, and rulemakers might be more willing to
allow intrinsic impeachment than extrinsic proof.
These two methods will be developed more with the
rules of evidence.
Purpose/Mode of Impeachment
Contradiction:
Acts (Bad)
Convictions (Higher form of bad
acts. Official recognition of
antisocial conduct)
Intrinsic Evidence
Yes.
608(b) Yes - if probative to
truthfulness. (ex, fraud, lying
etc…)
Yes, 609
Perception
Yes
Psychiatric Condition
Reputation for Truth and Veracity
Prior Inconsistent Statements
Yes
Bias
Yes
613(a) Deals with intrinsic. No
requirement for foundation.
Extrinsic evidence
No, if collateral.
No, 608(b) bars you.
Yes. (Very pro-admissibility) (If
you find any of the potential
witnesses committed any crimes,
you'd get copies of convictions so
that when you get on the witness
stand you can just ask the witness
if they were convicted. Any
witness or criminal defendant can't
deny it, it's right there. You can
introduce a copy of the conviction.
Witness would be convicted right
on the stand of perjury,
practically.)
Yes. (If you can't see, then there's
a major problem)
Yes
Yes, 608(a)
No, 613(b) --> Can bring in so
long as witnesss can explain. But it
doesn't say when.
Yes
Acronym For Impeachment Methods: CRIB CAPP
C  Contradictions
R  Reputation
I Inconsistent
B Bias
C Convictions
A Acts, Bad
P  Psychiatric Conditions
P  perception
Impeachment by Contradiction:
(Z) Generally: Showing the nonexistence of any fact testified to
by the witness.
(AA)
Relevance: Rules of evidence and Rule 402
authorizes admission of ‘logically relevant’ evidence and
courts recognize that specific contradiction testimony is
logically relevant to witness #1’s credibility.
(BB)

Collateral Evidence Rule
State v. Oswalt:
i. FACTS: Oswalt accused of robbing a store.
Oswalt has owner of a restaurant testify that
he was at the restaurant during the whole of
the day. He said he was there everyday for a
while. Prosecution wants to bring in
detective to say that he saw Oswalt on the
12th in Seattle. The crime occurred on the
14th.
ii. RULE: Cannot use extrinsic evidence to
prove contradiction if the contradiction is on
a collateral issue.
1. Here, whether Oswalt was in
Seattle on the 12th is collateral. The
main issue is whether he was there
on the 14th.
Impeachment by Character:
(CC)
Generally: In cross examine, we can bring in bad
character. Traditionally, cross examiner can impeach any
witness by showing witness engaged in bad conduct.
 (Rule 404(a) and IDVOXS allows impeachment by
bad character)
 Rational In Common Law Rule: Have to attack
credibility. If a person has done bad things in the past,
he might not be as truthful today because he has
already placed his own self interest above that of
societies, he might still be doing it on the witness
stand.
(DD)


Prior Bad Acts:
Generally: bad acts that aren’t crimes, but reflect on
witness’s character and veracity – cheated at cards,
lies a lot, etc.
Rule 608(b): Specific instances of conduct of witness,
for purpose of attacking or supporting witness’s
character for truthfulness MAY NOT BE PROVEN
BY EXTRINSIC EVIDENCE, except for
conviction of a crime under 609.
i. May be used, by discretion of court, if
probative of truthfulness or untruthfulness,
to be asked (intrinsic evidence) at cross
examination:
1. Concerning witness’s character for
truthfulness or untruthfulness
2. Concerning character for truthness
or untruthfulness of another witness
as to which character the witness
being cross-examined has testified.
ii. Giving of testimony by accused or other
witness is not a waiver of right against selfincrimination when examined with respect
to matters that relate only to character for
truthfulness.

State v. Owens:
i. FACTS: Man shoots wife. Claims it was an
accident. At trial prosecutor asks man under
oath about past acts he’s done (lied on
applications, etc)
ii. RULE: Prosecutor may ask (intrinsic
evidence) of past bad acts. However, cannot
use extrinsic evidence to demonstrate prior
bad acts

(EE)


Formal Charges: Cannot ask a witness about formal
charges (arrest, indictment, etc) when you are trying
to attack witness’ veracity b/c it is too prejudicial;
however we can ask witness about their awareness of
the arrests of the accused to test their qualifications to
be fair, reliable, good character witnesses.
Prior Convictions:
Generally: Prior convictions demonstrate the same as
prior bad acts. A person is willing to break the law
and have a character for dishonesty.
Rule 609:
i. (a) Generally, purpose of attacking
credibility of a witness:
1. (a) Evidence that witness other than
the accused has been convicted of a
crime shall be admitted (subject to
Rule 403) IF:
a. Crime is punishable by
death or imprisonment in
excess of 1 year (felony)
b. Court determines that
probative value outweighs
prejudicial effect (not
substantially, but merely
outweighs)
c. Evidence that the crime
involved dishonesty or
false statement (for
example, fraud, or even
shoplifting)
2. (b) Not admissible if more than 10
years since date of conviction or
release.
a. Unless court finds
probative value
substantially outweigh
prejudicial effect
b. Unless proponent gives to
adverse party sufficient
advanced notice to have
fair opportunity to contest.
3. (c) If annulled, pardoned,
rehabilitated, or other, then not
admissible.
4.
5.


(d) Juvenile adjudications generally
not admissible, but may allow if
necessary for fair determination of
guilt or innocence.
(e) pendency of appeal is irrelevant.
Does not make conviction
inadmissible.
Problem: Similar crimes and MO (except those that
are signature crimes) are highly prejudicial.
i. In NY, use Sandoval hearing where judge
determines what prior bad acts prosecutor
uses and judges make ruling on what prior
convictions to use and what bad acts to use.
ii. People v. Sanders:
1. FACTS: Defendant on trial for
shanking X. Defendant is
impeached with evidence he
shanked Y in the past.
2. RULING: Rule 609 does not allow
similar crimes because it does little
to impeach credibility and is highly
prejudicial.
Crimes of dishonesty or false statement:
i. US v. Wong:
1. FACTS: Prosecutor wants to
impeach defendant by using prior
convictions for mail fraud and
medicare fraud.
2. RULE: If elements of the crime
involve fraud or dishonesty, judge
has no discretion in disallowing the
prosecutor to use it.
a. Only instance in Fed
Rules where Judge may
not use any form of
balancing.
(FF) Psychiatric Condition:
 Generally: Evidence of history of mental instability
may be used to impeach a witness.

US v. Lindstrom:
i. FACTS: Government’s star witness has
history of psychiatric problems (suicide
attempts, overdosing, paranoia.
ii. RULE: Evidence of mental instability may
be used to impeach a witness.
1.

Also goes to defect in perception.
Altered or diminished capacity
through drugs, medicines, etc.
Medical Records of Insanity: Judge may or may not
allow you to use records depending on whether he
sees there was evidence of mental illness. Medical
records are tricky because they violate confidentiality
and privilege.
i. Judge determines. He has broad discretion
in making sure issue is probative and
relevant.
(GG)
i.

Witness’ Perception:
Generally: Perception issues is always fair game.
Always can raise.
Reputation and Opinion for Truth and Veracity:
i.
Rule 608(a): credibility of a witness may be attacked or supported by evidence in
form of opinion OR reputation but only as to the witness’s character for truthfulness
or untruthfulness,
i. Purpose: Opponent uses the proof of the character trait for untruthfulness of the
witness as circumstantial proof of conduct… The opponent reasons that if the
witness has character trait for untruthfulness, the character trait increases the
possibility that the witness is lying…
ii. Opening the Door: evidence of truthful character is admissible only after the
character of the witness for truthfulness has been attacked by opinion or
reputation evidence or otherwise
iii. Extrinsic Evidence: This tactic uses extrinsic evidence (the use of a witness to
attack character for truthfulness through reputation or opinion)
1. HYPO: X is prosecuted for sale of heroin to A, police informer. A
testifies that he made a purchase of heroin from X as part of a three
month “buy” program with A’s purchase from X coming in the second
month. X calls B to testify that he has been A’s next door neighbor for
10 years and that A has a reputation for having a bad memory.
2. Memory issues are unrelated to truthfulness. Thus, 608(a) does not
apply
Prior Inconsistent Statements:
ii.
Generally: Oral or written statements that are inconsistent with the testimony of the witness
currently on the stand. The fact that a witness said one thing and then another at trial goes to
their credibility. Jury may infer from inconsistency that he is uncertain or lying.
iii.
i.
Rationale: Inconsistent statements says that the person doesn’t know what’s going on
or isn’t reliable. Can’t rely on a witness who changes his story. We should trust
people who are consistent rather than inconsistent.
ii.
Limiting Instructions: Just because witness is inconsistent doesn’t mean he’s not
credible. Judge will give limiting instructions to ensure jury understands.
Rule 613:
i.
(a) In examining witness concerining prior statement made by witness, statement
need not be shown nor contents disclosed to witness at that time, but on request shall
be disclosed to opposing counsel.
ii.
(b) Extrinsic evidence of prior inconsistent statement is not admissible unless witness
is afforded opportunity to explain or deny the same and opposite party is afforded
opportunity to interrogate the witness.
iv.
Rule 801(d)(1)(A): Not hearsay if: witness testifies at trial and is subject to cross
examination and statement is inconsistent with declarant’s testimony which was given under
oath to penalty of perjury.
i.
Where does Lawyer get Inconsistent Statements? Many sources such as:
i. Depositions
ii. Witness statements
iii. Research
iv. Grand Jury Testimonies.
ii.
Foundation to Impeach Witness’s Credibility:
i. Common Law: Before asking whether a statement was made, must ask time,
place, and person to whom it was giving the witness, and must provide
opportunity to explain or deny. Ex. Where you at this place on this day and was
this person there BEFORE asking.
1. Avoids unfair surprise to witness and calling party> Saves time, gives
witness chance to explain.
2. Problem: Trap for unsuspecting lawyers.
ii. FRE says: Witness may be questioned intrinsically regarding prior inconsistent
statement, written or oral. Ex. Did you ever say this? Does away with
Foundation Rule.
1. Extrinsic Evidence is not allowed unless witness is afforded
opportunity to explain or deny the same (excusing witness subject to
recall) and the opposing party is afforded an opportunity to interrogage
the witness.
Bias:
v.
vi.
Generally: If a witness has a bias to lie on behalf of a party or against a party, that is highly
probative and very effective way to impeach. Relationship between party and witness might
lead witness to lie or slant testimony in favor or against a party.
General Rule: Cross Examiner may impeach witness to show bias, hostility, or some interest
in the outcome of the trial giving her a motive to lie or slant, provided its probative value is
not substantially outweighed by unfair prejudice. (May use Extrinsic Evidence)
vii.
US v. Abel:
i.
FACTS: Witness was an accomplice and says Abel was involved. Defense
impeaches Ehls with Mills, Mills, Abel and Ehls were prisonmates. Mills says Ehls
would falsely lie to convict Abel in the robbery. Prosecutor counters by wanting to
call Ehls showing Mills had bias favorable to Abel (because gang was close and
would retaliate against him if he falsely convicts).
ii.
RULING: Can ask questions to demonstrate bias. Essentially can use whatever so
long as not substantially outweighed by unfair prejudice.
viii.
Great latitude allowed to prove bias. Serves as a means of circumventing other evidentiary
rules.
i.
Ex. Evidence of settlement – not to prove liability, but to show witness may have
incentive to lie.
Judge gives qualifying instructions regarding bias: Just because a person has a motive to lie, doesn’t mean
you can’t accept his testimony as true. Just because a motive to lie exists doesn’t mean you have to
disbelieve him
Acronym For Impeachment Methods: CRIB CAPP
C  Contradictions
R  Reputation
I Inconsistent
B Bias
C Convictions
A Acts, Bad
P  Psychiatric Conditions
P  perception
Rehabilitation & Prior Consistent Statements:
ix.
Generally: Prior consistent statements are not admissible as evidence. Just because a witness’
statement is consistent doesn’t mean they’re telling the truth or that they’re accurate. It
doesn’t say anything really.
x.
Rehabilitation: Prior Consistent Statements are admissible for the purpose of rehabilitating
damage done to a witness after impeachment. Done upon redirect. Can be used to show the
other side took inconsistencies out of context.
xi.
Rule: Witness is allowed to testify to prior consistent statements to rebut an express or
implied charge against the declarant of recent fabrication or improper influence or motive.
xii.
Rule 801(d)(1): A statement is not hearsay if, witness is on the stand and available for crossexamination, and testimony is consistent with declarant’s testimony and is offered to rebut an
express or implied charge against the declarant of recent fabrication or improper influence
or motive.
xiii.
Tome v. United States:
i.
FACTS: Custody hearing for child. Child said to pediatrician her father molested her.
Girl’s mother brings 6 other people tot estify to the same fact.
ii.
RULING: Generally, can admit prior consistent statements to rehabilitate charge of
recent fabrication. HOWEVER, only allowable if statements were made before
alleged recent fabrication, improper influence or motive.

The “Best Evidence” Rule (The Original Writings Rule)
o Generally: you may not prove the contents of a writing by testimony, the original
writing itself must be introduced into evidence, unless it is shown to be unavailable





Applies to: Writing, Photograph, Recording, etc. [Rules 1001 – 1005]
Function: You can’t testify to the contents of what the writing shows, but you
can introduce independent evidence of what the writing reflects.
EX: Not allowed to ask X what the bill said unless he introduces the bill into
evidence, but you can ask X whether he paid the bill)
Policy Matter: production of the original prevents fraud that might result if oral
testimony or copies were used in lieu thereof; slight differences in written words
or symbols may make a vast difference in meaning.
Limitations: not applicable to official records, where contents of writing only
“collateral,” where party admits contents, when proof is oral conversation rather
than a record thereof, does not apply to testimony regarding the absence of
material from a document’s contents
Opinions and Experts:
 Generally: Almost everything stated is an opinion. Ex. “I smell smoke.” “It looked like blood.”
 Two Categories of Opinion:
o Lay Person Opinion
o

Lay Person Opinion:
o Rule 701: If a witness is not testifying as an expert, testimony in the form of opinion or
inferences is limited to opinions or inferences which are:
 Rationally based on the perception of the witness
 Helpful to a clear understanding of witness’ testimony or determination of a fact
in issue
 Not based on scientific technical, or other specialized knowledge.


o

Expert Opinion
Categories of Permissible Lay Witness Opinion: Matters of Taste and Smell, Another’s
Emotions, Vehicular Speed, Voice Identification, A witness’ own intent, where relevant,
Genuineness of another’s handwriting, Another’s irrational conduct, Intoxication
Skilled Lay Observer Testimony: if witness has had repeated, prior opportunities for
observation, the witness qualifies
Commonwealth v. Holden:
 FACTS: Witness claimed that the wink of defendant was telling him to create an
alibi for him.
 RULE: Testimony of a W as to his opinion of the intentions manifested by the
accused in a certain semaphoric signal (ie, wink) should be inadmissible as
outside the W’s personal knowledge.
Expert Testimony:
o Generally: Opinion expert by expert witnesses comes in through exception to the general
rule against opinion testimony.
o
Common Law originally required experts to have knowledge beyond the kin of laypeople.
Now, FRE requires that the expert be able to help jury make determination.
o
Rule 702:
 Admissible if scientific, technical or other specialized knowledge
 If will assist trier of fact to understand evidence or determine a fact in issue,
a witness qualified as expert by knowledge, skill, experience, training or
education may testify as to opinion if:
 Testimony is based on sufficient facts or data
 Testimony is the product of reliable methods and principles
 Witness has applied the principles and methods to the case.
o
Bases of Opinion Testimony By Experts
 Rule 703: facts or data in the particular case which an expert bases an opinion or
inference may be known before or at the hearing. If information is a type
reasonably relied upon by experts in the field, facts or data need not be
admissible in order for opinion or inference to be admitted. Inadmissible facts
cannot be disclosed to jury unless court determines probative value substantially
outweighs prejudicial effect.
o
Opinion on Ultimate Issue:
 Rule 704:
 (a) Testimony in the form of opinion or inference not objectionable
because it embraces an ultimate issue to be determined by trier of
fact.
 (b) Unless it is with respect to mental state or condition and whether
or not defendant have the mental state or condition constituting an
element of the crime.

o
Disclosure of Facts or Data Underlying Expert Opinion:
 Rule 705: expert may testifying in terms of opinion or inference and give
reasons without first testifying to underlying facts or data unless court requires
otherwise. Must disclose upon cross-examination, however.
o
Court Appointed Experts:
 Rule 706: Court, by its own motion or motion of any party, may request parties
to nominate experts. Courts will appoint their own experts based on nominations
or based on own prerogative.
o Witness must consent.
o Informed of witness’s duties in writing.
o Shall advise parties of witness’s findings.
o Can be called by either party and subject to cross examination.
 (b)Entitled to reasonable compensation.
 (c) May disclose to jury that court appointed witness.
 (d) doesn’t limit parties from calling own witnesses.
Steps of Giving Expert Opinion:
o Qualification: Ask about credentials. May establish through education, experience,
certificates, etc.
o

Test For Admissibility:
 Rule 702: Must assist trier of fact.
 Judge Finds sufficient Need when he concludes that subject is beyond
layperson’s ken or expert can draw substantially reliable conclusion on subject
than layperson AND
 Frye or Daubert Standard:
 Frye: Scientific Evidence is admissible only if the principle upon which
it is based is sufficiently established by being subject to peer review or
publication to have general acceptance in the field (minority view)
 Daubert v. Merrell Dow:
o FACTS: Minor children allege Benedectin caused birth
defects in pregnant women. Dow’s expert files affidavit and
said no correlation between Benedectin and Birth Defects.
Plaintiffs bring in 8 experts who conclude Benedictin create
birth defects. Studies are done by Mice.
o RULE: The expert witness testimony must have valid
scientific reliance and able to assit the jury.
 To determine if a theory is reliable, ask:
 Testable?
 Subject to Peer Review and Publication?
 Rate of Error?
 General Acceptance by Scientific
Community?
 Problem with Frye is that new theories would be out because it’s not
been out long enough to be accepted or peer tested. Knocks out a lot of
new theories.
 NY is a Frye state.
The Expert is giving an opinion and the opinion is sounded with “A reasonable degree of
certainty”. The question is. What are the bases under which an expert can give an opinion? What
are the sources of the expert’s opinion?
o
o
o
o


Facts personally observed.
Court testimonies.
Second hand data. There’s a limitation on second hand data, though, must be of a “type
reasonably relied upon by experts in the particular field in forming opinions or inferences
upon the subject”
 Can be things that aren’t admissible or admitted into evidence.
Can respond to the hypothetical question.
 Hypothetical question
 Person asking will probably take best facts in the hypothetical question,
which he present to the doctor.
 But sometimes the hypothetical questions may take a long time to ask.
 Federal Rules abhor hypothetical question.
 Hypothetical questions must track with the record.
 Hypothetical Question is a phony question. It’s more like a summation.
How can we properly and correctly impeach the expert?
o Have him acknowledge that the material is recognized as authoritative. Then, you can
pick out portions of the learned treatise, and then pick inconsistencies between the
treatise and expert testimonies.
 Rule 803(18)  When used to impeach, statements in published treatises,
periodicals and publications can be read into evidence for the truth of what they
assert.
o You can ask Expert for what he’s getting paid for the testimony.
o You can ask expert whether he’s ever testified for the plaintiffs.
o Can impeach on qualifications.
State v. Chapple:
o FACTS: Can expert give valid opinion that calls into doubt the memories of
eyewitnesses?
o RULE: Witness’s certainy is a factor to consider. May bring memory experts to testify as
to the effect of stress on memory.
 Generally, in close cases, it’s an abuse not to use experts.
Hearsay:




Statements: Statements are made outside the courtroom intended as an assertion. May be verbal or
in writing or derived from conduct.
Rule 801(a): Statement:
o Oral or written assertion or
o Nonverbal conduct of a person, if intended by the person as an assertion.
 Ex. Getting up and walking out of class is not an assertion. Isn’t intended by the
person as meaning anything. Could be getting up to go to the bathroom.
Rule 801(c): Hearsay: Statement, other than one made by the declarant while testifying at the trial
or hearing, offered in evidence to prove the matter asserted.
o Oral or written assertion or conduct amounting to assertion
o Made or done by out-of-court declarant
o That is offered to prove the truth of the matter asserted
Rule 802: Hearsay is not admissible except as provided by Hearsay exceptions or other rules
prescribed by Congress or Supreme Court.
o Even if declarant is testifying on his own statement from a prior occasion, it’s still
hearsay.


Hearsay Analysis:
o Identity of the Statement: What is the statement that is being offered into proof?
o Conduct, verbal, written?
 Why is this statement being used?
 This question will tell you whether it’s hearsay or not.
o What is the issue the statement is trying to prove?
 This question will tell you if it’s hearsay or not.
o If it’s not hearsay, is it relevant?
o If it is hearsay, does it fit under an exception?
Ex. Of Hearsay:
o
US v. Brown:
 FACTS: Tax preparer is convicted in Fed court for producing fraudulent tax
returns. IRS investigator investigates 160 clients and asked client how much
deduction they claimed. Can report with all of the client’s statements be
admitted?
 RULE: No, out of court statements were asserting to the truth of the matter at
issue. Was being used by prosecution as proof of actual deductiosn.
 Defense attorney couldn’t confront taxpayers.


Hypothetically, can use for a nonhearsay purpose, however. Can use to
prove Peacock prepared the test, and use statement to prove good faith
preparation of the report. Can also speak to legitimacy of the
investigation.
Non-Hearsay Statements:
o Hearsay rule not applicable where evidence of out-of-court words or actions offered show
that the statement was made or that it had certain effect on the l istener or the observer,
rather than prove the truth of the matter asserted
o
Analysis:
 What is the Issue?
 Is it being used to prove the truth of the matter at hand?
 If it isn’t, is it relevant?
Types of Nonhearsay
1. Where the out of court statement is used to prove the state of mind of the hearer.
a. Knapp, Subramanian, etc…
2. Where the out of court statement is used to prove the state of mind of the speaker
a. Supermarket case, case of the will, case of the car where the guy said other car driver
is having a heart attack.
3. Conduct
4. Knowledge  Proof of knowledge.
5. Independent Legal Significant Words.
6. Silence is not hearsay.
7. Machines don’t make statements.
8. Animals don’t make Statements.
o
Acronym – KISS SMAC:
o K - Knowledge
o I – Independent Legal Significance
o S – State of Mind of hearer
o S – State of Mind of the Speaker
o
o
o
o




S – Silence
M - Machines
A - Animals
C – Conduct
State of Mind of Hearer:
o Subramanian: D is arrested for treason for associating with a bunch of terrorists. D uses
conversations with terrorists to prove state of mind of D from the fear imposed by the
terrorists. (Threats to life )
o Vineyard: Evidence of complaints to D that its parking lot pavement was slippery is
admissible when to prove that D had notice of danger, not to prove truth of whether
pavement was slippery.
o Johnson: Committee reports of doctor’s performance is not hearsay. Demonstrates hiring
committee’s knowledge that the doctor is incompetent, notified to the reputation and goes
to show hospital is negligent.
o Susan Smith: Drowned her own children. Letter from ex-boyfriend saying he doesn’t
want to be with her because of her kids. Letter admissible because it goes to state of her
mind. Creates motive.
o Hernandez: Guy was arrested for carrying drugs. Trial Judge allows testimony that DEA
gets referral from US Costums that Hernandez was smuggler.
 Prosecution received referral proof of Hernandez’s guilt, not as proof of state of
mind.
 Lacked relevance, too.
State of Mind of Declarant:
o Loche: Wife sues D for loss of consortium for death of husband. D moves to admit a will
stating that wife was faithful, but husband was horrible and thus she leaves him $1.
 Non-hearsay purpose because it shows declarant doesn’t like her husband.
 Relevance: If she didn’t like husband, it affects consortium claim.
o Tropacoola: Lawsuit against Tropacoola for false advertisement. Advertisement states
that their orange juice is made from freshly squeezed oranges. Government does a survey
and 80% believe they make it from freshly squeezed oranges.
 Non-hearsay purpose because it proves that advertising leads to deceptive
impressions.
 Relevance: Element of false advertisement requires that advertisement have
capacity to deceive.
Conduct: If conduct is done by the actor with the intention of making an assertion, then it’s
hearsay and then it’s incompetent.
o Zenni: Cops bust gambling house and hears phone calls from people calling in bets.
 Nonassertive Conduct: Caller are calling to palce bets, not to make
statement that the place is a betting establishment.
 Relevance: If callers are placing bets, this allows the inferences that the
location is a betting establishment.
o Sea Captain case: Is it hearsay to prove the vessel is seaworthy if sea captain took his
family on a voyage?
 If getting on vessel with family, that’s an implied assertion.
Knowledge (Personal): Statements by declarant subject to cross-examination and based upon
personal knowledge are not hearsay.
o Kinder: Kinder brothers charged with larceny. Evidence has defendant’s nephew w ho
was with the brothers in pickup truck. Police questioned little boy. Boy responded by
pointing to a shack.
 Non-hearsay: Not using to prove that property was under the shack. Used to
show that the property is under the shack.

o




Relevance: Boy knows where the property was, then he saw the property. That’s
proving defendant’s consciousness of guilt and knowledge.
Child Rape case: Girl vividly describes to mother the room where the rape took place.
Rest of her testimony is vague. She’s discredited. Prosecutor calls mom to relate the
conversation. Mom tells jury about where little girl was taken..
 Not Hearsay: Not used to prove what the room looks like.
 Relevant: Demonstrates that the girl was in the room and knows the room.

Silence (is not a statement): only issue becomes relevance
o HYPO: Lawsuit against passenger train company for failing to install heaters in the
winter. Several passengers became ill and are suing the train company for negligence in
failing to do so and causing the illness. Train company’s defense is that no passenger
ever complained to an employee.
o Is silence a statement? No.
Animals (do not make statements): only issue is relevance
Machines (do not make statements): only issue is relevance
o HYPO: Officer guns you going 75 mph on the highway. He wants to admit the reading
from the machine into evidence. Admissible?
o Machines do not make statements
Independent Legal Significance: Mere utterance of words have independent
o Words of gift, sale, or bailment: “Take the book as a gift”
o Words alleged to be deceitful.
o Words of marriage: “Will you marry me?”
o Inciting Violence: “Taking up arms against country.
o Words of offer, acceptance, rejection, etc, in contract actions.
o Defamatory Words.
Hearsay Exceptions:
 Introduction: Several rationales are used for hearsay exceptions. 1) Necessity for using hearsay
evidence, 2) something that serves as a guarantee or inherent trustworthiness and reliability.
o Civil Cases: Evidence can come in if it fits under an exception.
o Criminal Cases: Must Consider the Confrontation Clause.

Unavailablility under Rule 804. – Where a declarant is, defined by the code, unavailable, some
types of hearsay may be used:
o Types of 804 Unavailability:
 Death/Illness
 Privilege: Ruling by judge is required
 Refusal to Testify: Witness refusing to testify despite judicial pressures.
 Lack of Memory: Established by witness and subject to cross examination.
 Absence: Must show due diligence in seeking out the witness.
 Declarant Out of Country: Subpoena cannot be served on witness b/c it
is outside of the jurisdiction of the court, so if the witness is asked to
appear and refuses, the witness is unavailable.
 Subpoena:
o Federal Criminal Case: Nationwide.
o Federal Civil Casees: Within 100 miles of the jurisdictions of
the Federal Court.
o State Criminal Cases: Interstate compact, all states agree to
cooperate in enforcing subpoena nationwide.


Dying Declarations: Circumstantial Guarantee of trustworthiness because dying person won’t
die with lie on their lips.
o Rule 804(b)(2) – A statement made by a declarant while believing that the declarant’s
death was imminant, concerning the cause or circumstances of what the declarant
believed to be impending death.
 In criminal case: limited to homicide.
 Concerning the cause or circumstances of what the declarant believed to be
impending death.
o
Elements:
 Victim’s Statement (must be the victim, not third party)
 Unavailable
 Sense of Impending Death: Must make statement while believing the death was
imminent (e.g. I’ve got to die)
 Judicial determination: Judge must pass on a preliminary legal
conditions necessary to the admissibility of evidence, including
whether victim had a belief in impending death (104(a)).
o By preponderance of Evidence.
 Weight: After dying declaration is dmitted, the jury may then decide
the amount of weight to give to the statement.:
o Rule 806 – May attack credibility of the declarant.
o
Facts related to cause or circumstances of what victim believed to be impending death:
Cannot say “I was shot by X because of a debt I owed him”. This does not speak to fact
or circumstances of debts.
o
Soles v. State:
 FACTS: Boy gets shot in the back of the head while escaping from defendant.
Declarant tells father “Carl Soles shot me and I’ve got to die.”
 RULE: Statement made while declarant believed it was imminent debt.
Excited Utterance:
o Rule 803(2): A statement relating to a startling event or condition made while the
declarant was under stress of excitement caused by the event or condition.
o
Rationale: Statement made under immediate and uncontrolled domination of the sense
and during brief period when considerations of self-interest could not be fully considered
by reasoned reflection, it guarantees trustworthiness.
o
3 Elements of Rule 803(2)
 Startling/Exciting Event.
 Allow because a response to a startling event hasn’t allowed
individuals to fabricate or intellectualize the event yet. No chance to
think or reflect the event.
 While the Declarant was under Stress of the Exciting Event.
 There’s no definite time as to when this is. Could be minutes, hours, or
several hours.
 Statement must relate to that event.
o
Truck Insurance v. Michling:
 FACTS: Wife brings case for husband who died said he said he hit his head in
the bulldozer where he worked. Dies a month later.
 RULE: Look at the 3 Elements of Rule 803(2):




Federal Rules: Michling’s statements may be considered to prove the
truth of the startling event because Rule 104(a) allows judges to
consider hearsay in making Foundation requirements.
Minority Rule (Texas): Can’t use hearsay statement to be used to
prove the event. Won’t look at the exception because of it
Present Sense Impression:
o Rule 803(1): A statement describing or explaining an event or condition made while
declarant was perceiving the event or condition or immediately thereafter:
o
Elements of Present Sense Impression.
 1) Event or condition
 2) Statement explains or describes the condition
 3) Made while the declarant was perceiving the event or condition, or
immediately thereafter (very important timeframe)
o
Rationale: A spontaneous statement, not reflected upon, has an inherent guarantee of
reliability.
o
Time Frame: Must be immediately thereafter or during the time. More strict than an
excited utterance. No more than a few minutes after the event.
o
Lira v. Albert Einstein Medical Center:
 FACTS: Woman goes to sore throat, goes to a specialist. Doctor looks at the
throat and said of the earlier nasogastric tube “Who’s the butcher who did
this?!”
 RULE:
 Present Sense impression must be an instinctive reaction. A
deliberative medical opinion is not an instinctive reaction.
 Rule 803(1): Present Sense Impression needs the statement to explain or
describe t he event that is happening, no need for it to be instinctive/reflex
reaction.
o
Houston Oxygen:
 FACTS: Collision between Plymouth and Houston Oxygen Truck. Plymouth
driver sues Oxygen Truck. Defendants introduce witness in another car whose
passenger said “The driver of the Plymouth must be drunk.”
 RULE: This is a present sense impression. Instinctive and describes what’s
happening.
Admissions: MUST BE UNAVAILABLE.
o Rule 801(d)(2): Statement is offered against a party and is:
 A) Party’s own statement in either an individual or representative capacity
 B) Statement of which party has manifested an adoption or belief in truth
 C) A statement by a person authorized by the party to make a statement
concerning the subject matter
 D) Statement by the party’s agent or servant concerning matter within scope
of agency or employment.
 E) Statement of a coconspirator during course and in furtherance of conspiracy.
o In order to establish, needs independent evidence before finding a authorization, agency,
or coconspirator relationship.
o
Personal Knowledge: NO NEED FOR PERSONAL KNOWLEDGE
 Reed v. McCord:


FACTS: Worker killed while on job at factory. Boss of defendant
company made statement that the machine wasn’t working and caused
the deceased’s demise. Stenographer writes it down. Boss had no
personal knowledge of what happened, was told by foreman.
RULE: No need for personal knowledge. Enough if the party manifests
an adoption or belief of what was told to him.
o
Relationships: Consider the party relationship as Parties In Privity.
o
Own Statements: Party cannot introduce its OWN statements as party admissions. Must
be introduced by the opposing party.
o
Three Categories of Admissions:
 Individual or Representative Admissions: Statement attributable to party
opponent/
 Incompetence: Drunk admissions are okay.
 Unconsciousness: Sleep-talking admissions are inadmissible.
 Durress or Forced: Coerced admissions are inadmissible – involuntarily
given.

Adoptive Admissions: third party makes a statement, but we impute the
statement to party-opponent because they manifest adoption or belief in truth of
statement.
 Silence: Silence is used in support to manifest adoption of declarant’s
statement, must be established that probable human behavior would’ve
been to deny.
o Hoosier:
 FACTS: Defendant accused of robbing bank.
Girlfriend said to friend in presence of defendant
imply defendant robbed bank. Defendant was quiet.
 RULE: Silence may be adoption or belief if probable
human behavior would be to deny the statement.
HYPO: D tried for a crime. Earlier, X, D’s brother, writes a
detailed confession to the crime. X meets with D and D looks
over the confession at the police station. D says to X, ‘You
might as well sign it, you’ve already told the police
everything.’ Is that an adoptive admission of the statement by
D? Yes
Vicarious: A third party makes a statement, but the party-opponent doesn’t
manifest agreement; instead the statement is attributed by legal relationship.
 Authorized Admissions: Statements by person authorized by the party
to make a statement concerning the subject.
 Agency Admissions: Statement by party’s agent or servant concerning
matter within scope of the agency or employment.
o Agency: Must be within scope of the employment or
relationship.
o


o
Mahlandt: Statements made by Poos would constitute
statements made within the scope of his agency
because he was caretaker of wolf.
Ex. Bus Driver case – Lawsuit by injured passenger against
bus company. Plaintiff seeks to introduce bus driver’s
statement against bus company. Would it be admissible under

801(d)(2)(D). Bus driver was an agent of bus company. Did
the statement concern the matter within the scope of bus
driver’s employment? Yes.
Coconspiracy: Statement by co-conspirator of a party during course of and in
furtherance of the conspiracy is admissible.
 Must establish conspiracy to trigger the rule first. Require independent
evidence to confirm.
o Bourjaily: Court said that hearsay statement saying there was a
conspiracy may be enough to establish a conspiracy.
o

Former Testimony: MUST BE UNAVAILABLE
o Rule 804(b)(1): Testimony given as a witness at another hearing of the same or different
proceeding, or in a deposition in compliance of law, if party against whom the
testimony is now offered or predecessor in interest had opportunity and similar
motive to develop testimony by direct, cross, or redirect examination.
o
Reliability: Witness has to be on the stand , under oath, and cross examined. Indicia of
trustworthiness of that out of court statement is pretty strong. There was cross
examination by previous lawyer.
o
Elements:
 Party against whom former testimony is offered must have been a party or a
predecessor in interest.
 Witness Unavailable
 Prior Proceeding: Must involve testimony given under oath.
 Party had opportunity to Develop Testimony by Direct, Cross, or Redirect.
 Preliminary Hearing: Admissible, under oath and Defendant still had an
opportunity to cross-examine witness.

o

Grand Jury: Former testimony is inadmissible. No opportunity for
cross-examin to confront and develop testim
Travelers Fire Insurance:
 FACTS: JB and JC sue Traveler’s for proceeds on insurance policy because
building burnt down. JB was previously indicted for arson on the same building.
Two co-conspirators testified against JB.
 RULE: Admissible if can make out:
 Unavailability,
 Opportunity to cross-examine
 Similar motive to examine at the criminal trial.
o Same issue?


FRE says: Must have independent evidence to confirm that
there was a conspiracy.
Might be able to use testimony against JC even if JC wasn’t a party in
criminal trial because JC would’ve cross-examined the same way. Can
call JB a predecessor in interest to JC.
Good Faith Efforts: Witness is in south America. Witness talks to prosecutor and ascertains that
the Witness didn’t want to come. Witness doesn’t speak English very well.
o Ct. of Appeal says: Error to use former testimony to show the witness was unavailable.
Should’ve had an interpreter, should’ve done more.
Declarations against Interest: MUST BE UNAVAILABLE.
o
Rule 804(b)(3) – Statement which at the time was: 1) So fara contrary to declarant’s
pecuniary or proprietary interest or 2) tended to subject declarant to civil or criminal
liability, or 3) render invalid a claim by the declarant against another – that a reasonable
person in declarant’s position would not have made statement unless believing it to be
true.
 If exposes declarant to criminal liability and used to exculpate accused, not
admissible unless corroborating circumstances indicate trustworthiness of
statement.
o
Elements:
 Unavailable under 804.
 Sufficiently Against Interest: Must be against the interest of declarant in
pecuniary, proprietary, or penal interest.
 So a reasonable person would not make the statement.
 Declarant knew the statement was contrary to his own interest and there is no
motive to lie.
1.
Difference from an Admission of Party-Opponent
a. Must be “against interest” when made; admissions have no such requirement
b. Admissible only if the declarant knows (personal knowledge) the statement was
against interest (guarantee of reliability); admissions don’t require personal
knowledge
c. Declarant must be unavailable; admissions have no such requirement
d. Third party can make a declaration against interest; admission has to be made by
party-opponent
o
Categories:
 Civil Cases: Proponent of declaration against interest must be unavailable, had
peculiar means to know the fact and no motivation to lie.
 McKelvey v. General Casualty:
 FACTS: Want to use confessions of employees to show they stole
money from him.
 RULE: Employee admissions were unavailable, against pecuniary
interest, had knowledge. There’s no motive to falsify. If a motive to
falsify exists, then no declaration against interest.

Criminal Case: D uses Declarations to Exculpate Himself:
 Rule requires corroborating circumstances clearly indicating
trustworthiness of statement.
o This is SUPERCORROBORATION. Courts distrust the
against interest declarations of absent declarants. Often used to
help out Friends.


US v. Barrett:
o FACTS: Guy on trial for stealing stamps. Offers Melvin who
said Tilley said another guy did it and not D.
o RULE: For D exculpating himself with against interest
statement of others, need corroborating circumstances clearly
indicating trustworthiness.
Criminal Case: Prosecutor Uses Declarations Against Interest to Implicate D.
 Generally: Confessions of One defendant Implicating another is not
admissible.





Confrontation: Declarations against Interest raises issue of
Confrontation because the declarant is unavailable and D cannot crossexamine the witness to challenge the statement.
Ex. A & B rob a bank and says “A and B robbed a bank.” Can
prosecutor use B’s statements against A?
o Bruten: Supreme Court said judge’s limiting instructions by
the judge are incapable of curing the problem. Instructions
cannot limit or cure this problem.
o Prosecutor must sever the cases or bifurcate criminal trial.
Ex. B said “I killed X”. A and C are charged with being accomplices.
Can B’s statement be admitted on behalf of A and C?
o No problem here.
Types of Statements
 Self-serving: X believes that by implicating D, he will curry favor w/
police and receive leniency (inadmissible – non-self-inculpatory
statement)
 Neutral: if X neither helps nor hurts himself by implicating D
(sometimes admissible)
 Disserving: X’s knowledge of Z’s activities incriminates X further by
showing insider knowledge of a criminal conspiracy (admissible)
State of Mind:
o Rule 803(3): A statement of the declarant’s then-existing state of mind, emotion,
sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain
and bodily health),
 Unless it is a fact remembered or believed
 Unless it pertains to declarant’s will.
o
Elements:
 Statement that bears on state of mind of declarant;
 Present state of mind is at issue in the case.
 Cannot be a memory or belief to prove a fact remember.
o
Adkins v. Brett:
 FACTS: Husband sues another man for alienation of affection of his wife. Man
seduced wife. Wife said that she went out to dinner, got flowers, etc.
 RULE: The statements were offered to prove the truth of the matters asserted
and is hearsay. The statements are used to show Alienation, a state of mind.
o
Hillmon Doctrine: Declaration of a plan or intent to perform an act in the future may be
introduced into evidence as proof that the act has been committed.
 Hillmon: Letter stating X’s intention to go to crooked creek admissible to allow
inference that X went to Crooked Creek.
 RULE: Letter stating plan or intention may be introduced. Goes to
intention, which is a state of mind. Fair inference of if you say you’re
going somewhere next week, then you’d do it.

Problem: logical gap b/c doctrine assumes that the person will not change their
mind (seems counter-intuitive to say that a statement of intention to do
something can be used to prove that a person did the act, but a statement that the
act was performed cannot be used)
o
Past Looking Statements: Statements must observe the present state of mind of the
declarant and not look to the past
 Shepard v. United States: Shepard’s wife, before dying, stated “Dr. Shepard has
poisoned me.”
 RULE: Testimony that “Dr. Shepard has poisoned me” is looking to the
past and not looking to present or future states of mind or intentions?
o
Conduct of Third Parties:
 Probable Conduct of Third Parties: Statement of declarant’s state of mind cannot
be used to implicate or reflect on the probable conduct of third person.
 Cannot say “I know X is going to kill me”.


Future Conduct with Other People: Declarations of intent by a declarant to do
something in future with a third person may be admissible to show declarant met
third person (But can’t use statements to show third person met Declarant)
 Pheaster: Son of millionare kidnapped for $400K ransom. Son declares
to girlfriend that he’s going to meet Angelo.
o RULE: Statement can be used to show inference that declarant
met with Angelo.
Physical Condition:
o Rule 803(3): Where person’s present condition at a specific time is in issue, that
person’s spontaneous statements, made at the time, are admissible to prove the condition.
 Ex. P is injured in a traffic accident. Her statements at and after the collision
about how she feel are admissible to prove the same.
o
Rule 803(4): Statements made for purposes of medical diagnosis or treatment and
describing medical history or past or present symptoms, pain or sensations or the
inception or general character of the cause or external source as reasonably pertinent
to diagnosis or treatment.
 Essentially, can use statements made for treatment are reliable. Person want to
get treated or diagnosed.
 Diagnosis of non-treating doctor for purpose of expert testimony is okay.
o
Issues from Rule 803(4):
 Can describe past symptoms. Medical history is allowed.
 Statements can pertain to cause of symptoms, as long as it reasonably pertains to
diagnosis.
 Ex. You can say “I slipped on a banana peel.”
 Statements made to EMS and people who aren’t directly going to treat you is
admissible.
 Statements made to mother or other individual may be admissible if it’s for the
purpose of diagnosis or treatment. Doesn’t need to go directly to doctor or nurse.
 Kid said “That man did something to me last night.”
 It’s for the purpose of diagnosis and treatment, but is identifying
perpetrator reasonably pertinent to diagnosis or treatment?
o If physician or psychiatrist is interest in knowing who
abused girl or what heppend, may be important and
necessary.
a.
Cause of Declarant’s Present Medical Condition: Courts draw line where statement
regarding cause enters realm of fault (e.g. statement that X struck by car admissible, but
not that the car drove through a red light) unless the statement is reasonably pertinent…
i. Two Part Test:
(1) Declarant’s motive must be consistent w/ purposes of obtaining medical
treatment; and
(2) Content of statement must be such as is reasonably pertinent in providing
medical treatment or diagnosis
(A) questionable whether statements identifying perpetrator of the
condition (i.e. in a rape) is necessary for diagnosis or treatment
(probably not)
ii.
“Tender Years” Exception: allows statements of very young, ordinarily inadmissible
based upon their age, to be admitted where there is nothing to indicate a motive
other than a patient responding to questions by a physician for purposes of
medical treatment [this might include statement as to cause]
A. Prior Identification
1. Prior Identification Problems: misidentification is common among people making an
identification after perceiving an event; memory is faulty
a. Lineup: a police identification procedure by which a criminal suspect and other physically
similar persons are exhibited before the victim or a witness to determine whether the suspect
can be identified as the criminal
i.
Types of Lineups
(1) Corporeal Lineup: suspects line up and victim makes identification
(2) Photographic Array: victim goes through a mug book and makes identification
ii.
b.
2.
Dangers of a Lineup: lineup is a closed universe; the underlying expectation of
witness is that assailant is one of the suspects presented in the lineup (even if it may
not be)
Due Process Violation: improper identification procedures violate the 14 th Amendment;
examples –
i.
Show-Up: pretrial identification procedure in which a suspect is confronted w/ a
witness to or the victim of a crime; unlike a lineup, a show-up is a one-on-one
confrontation; considered inherently suggestive [ex: bringing the victim to a
suspect handcuffed to a chair and the victim identifies]
(1) Exigency Situation: under some circumstances, the show-up may be allowable;
the focus will be on how the police choose to arrange the situation. In an
impromptu identification, this type of show-up may pass constitutional muster
Rule 801(d)(1)(C): a statement is not hearsay if . . . the declarant testifies at the trial or hearing
and is subject to cross-examination concerning the statement, and the statement is . . . one of
identification of a person made after perceiving the person
a. Elements:
i.
Declarant must testify at trial or hearing;
ii.
Declarant must be subject to cross-examination concerning statement;
iii.
Statement is one of identification of a person made after perceiving the person
iv.
prior-identification must comport with Constitutional requirements (such as not
using a ‘show-up’)
b.
Rationale: given adequate safeguards against suggestiveness, out-of-court identification is
preferable to courtroom identification b/c as time goes by, witness’ memory fades and
identification will become less reliable. Minimizing the barriers to admission of more
contemporaneous identifications is more fair to Ds and prevents cases falling through because
the witness can no longer ID the person who committed the crime
c.
Memory Loss: Testimony concerning a prior out-of-court statement identifying a person is
admissible even if the declarant is unable, because of memory loss, to explain the basis for the
identification (United States v. Owens)
i.
ii.
Facts: Correctional officer badly beaten, identifies D as assailant while in the
hospital, but suffers memory loss at trial and cannot recognize D
Rationale: Confrontation Clause is not violated – it guarantees only an opportunity
for effective cross-examination. It’s a chance for a D to look his accuser in the eye;
memory loss does not make a person unavailable for cross-examination since
unavailability is a statutory definition not applicable to 801.
B. Past Recollection Recorded
1. Ways to Recall a Situation at Trial: Witness Testifies from Recollection; Present Recollection
Refreshed (item is used to refresh or revive the witness’ recollection) (612); and Past Recollection
Recorded (803(5))
a. Note: do not confuse Past Recollection Recorded w/ Present Recollection Refreshed
i.
Distinction: difference between evidence and non-evidence. For present
recollection refreshed, the document acts only used as a stimulus (anything can be
used) but the evidence is the witness itself. Past recollection recorded may be used
as substantive evidence when the witness is incapable of remembering the
information personally (Baker v. State – judge confused the standards)
2.
Rule 803(5): The following are not excluded by the hearsay rule: . . . A memorandum or record
concerning a matter about which a witness once had knowledge but now has insufficient
recollection to enable the witness to testify fully and accurately, shown to have been made or
adopted by the witness when the matter was fresh in the witness’ memory and to reflect that
knowledge correctly.
a. Elements:
i.
Memorandum or Record
ii.
Witness prepared or adopted document – giving witness adequate personal
knowledge;
iii.
Witness has forgotten the event (insufficient recollection);
iv.
Prepared or adopted record when fresh in witness’ mind (shortly after event: could
be talking about hours or days later);
(1) Adopted: witness read the document when the event was fresh in her memory,
knew then that the document was correct, and therefore adopted the document as
a record of event (i.e. police report)
v.
Document correctly reflects what was remembered when it was made;
b.
Rationale: since witness lacks sufficient memory, the only choice is to admit the written
statement or do without the evidence entirely (necessity); problems of memory and sincerity
are minimized b/c statement was written or adopted at time when it was fresh in witness’
mind, and witness is available for cross (reliability)
c.
Limitation: if admitted, the memorandum or record may be read into evidence but may not be
offered as an exhibit unless offered by an adverse party.
i.
Rationale: the limitation is adopted because the jury may assign too much weight to
the record (magnifies the importance of it) – it would be a way of inflating the
testimony of one witness.
d.
When Used: often used when the details in a record made by the declarant are extensive and
it is too much for them to remember those details
C. Forfeiture by Wrongdoing
1. Rule 804(b)(6): not excluded by the hearsay rule if the declarant is unavailable . . . a statement
offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did,
procure the unavailability of the witness.
a. Elements
i.
declarant is unavailable;
ii.
iii.
iv.
statement offered against party
who has engaged or acquiesced in wrongdoing
that was intended to and did procure declarant’s unavailability
b.
Rationale: if such wrongdoing is recognized to forfeit certain constitutional rights, it should
also result in a forfeiture of a litigant’s rights under the statutory hearsay rule
i.
EX: D made veiled threats to a witness that he should not identify him as the drug
purchaser in grand jury; witness did so and the day witness was to testify at trial, he
was murdered. Court held that D’s involvement in witness’ death forfeited his right
to confrontation (United States v. Mastregelo)
c.
Burden of Proof: preponderance of the evidence applies since this is an evidentiary issue
under 104(a)
Forfeiture vs. Waiver: forfeiture accurate term than a waiver b/c waiver assumes the person is
aware of their rights and waives them, but under this exception, the defendant may not be
aware that causing the unavailability of the witness will cause ‘waiver’ of the confrontation
right
d.
D. Business Records
1. Introduction
a. Old Standard: in order to introduce a business record into evidence, you needed to establish
the chain of possession to guarantee the authenticity of the document (which required
numerous witnesses and undue burden).
b.
2.
“Regular Course of Business Doctrine”: modern rule to align evidence law w/ business
practices; established that records kept in the regular course of business are admissible for the
proof that those documents’ assert.
i.
Rationale: it’s in the interests of the business to keep their records accurate and
reliable; the source of the information and the method and time of preparation
indicate the trustworthiness
Rule 803(6). Records of Regularly Conducted Activity:
a. Elements:
i.
Records Made At or Near Time of the Transaction
ii.
Business / Entity
(1) Defined: every business, institution, association, profession, occupation, and
calling of every kind, whether or not conducted for profit (broad enough to
cover organizations not ordinarily thought of as businesses) (e.g. schools,
hospitals, churches, etc.)
iii.
iv.
v.
Kept in the course of regularly conducted business activity
Must be the regular practice to make that record
Acts / Events / Conditions / Opinions / Diagnosis / Observations
(1) Prognosis vs. Diagnosis: a doctor’s diagnosis is admissible, but a prognosis
(prediction of a probable course and outcome of disease) may not be
vi.
Unless the source of information or methods of preparation indicate lack of
trustworthiness1
(1) Source of Information: entry must consist of matters either within personal
knowledge of entrant; or transmitted to entrant by someone who was under a
business duty to report such matters to the entrant and who had firsthand
knowledge
This is more of a limitation than an element that must be met – it’s the last thing that should be asked – is
the source reliable?
1
(A) Why: where the record contains statements by persons having a duty to that
business, their statements are inherently reliable b/c of the duty to that
company; if the record contains statements provided by third parties without
such a duty to the business or entity, it does not have the same guarantee of
reliability and is inadmissible
(B) Ex: police reports based on firsthand knowledge of officer is admissible,
but reports based solely on the statements of bystanders who are not under a
business duty to report are not (Johnson v. Lutz)
(2) Newspaper Reports: as a general rule, they would probably not come within the
business record hearsay exception because they are not sufficiently trustworthy
or reliable
(3) Accident Report Offered by D Being Sued: an accident report offered as a
business record by the defendant being sued probably does not have guarantees
of trustworthiness
b.
Record Authenticated: custodian of records or other qualified witness (not necessarily the
original entrant) must appear in court to identify the records, and testify as to their mode of
preparation and safekeeping
i.
Records within Records: no requirement that either the witness who lays the
foundation for business records be the author of the record or be able to personally
attest to its accuracy, or that the records be created by the business having custody of
them (United States v. Duncan)
(1) Ex: business records from an insurance company were admitted into evidence
even though they contained medical records from an independent entity – a
hospital (the hospital’s records had sufficient guarantees of trustworthiness)
c.
Form of Records: any form of records is permissible as long as made in the regular course of
business (e.g. computer printouts)
Redacting: a portion of a business record may be held admissible, while other portions are
not
d.
3.
Criminal Cases: it is still unsettled whether use of business records in a criminal case violates the
accused’s confrontation rights where the entrant fails to testify; Supreme Court may have to decide
the issue
4.
Business Records as Evidence of Absence of Any Entry: properly authenticated business records
can be used to prove “the occurrence or nonoccurrence of a transaction” as long as it can be shown
that it was the regular practice of the organization to record all such transactions (Rule 803(7))
E. Public Records and Reports
1. 803(8): statements are not excluded by hearsay rule if –
a. Activities of office or agency, or
b. Observations made pursuant to a duty imposed by law; or
i.
Limitation: no matters observed by law enforcement in criminal cases are
admissible under this exception
c.
2.
Factual findings resulting from an investigation made pursuant to authority granted by law
unless the source of the information or other circumstances indicate lack of trustworthiness
i.
When: civil actions / proceedings or if offered by defendant against the Government
in criminal cases
Overlap: public records exception may often overlap with business records, but the public record
exception goes beyond the business record exception…
3.
F.
Distinction from Business Records:
a. in the public records exception, we may be recording an event that’s ‘once in a lifetime’
b. with public records, you don’t need a sponsoring witness / custodian – you can simply get
them certified
c. can be based on statements from witnesses who had nothing to do with the agency
Residual Exception [“Catch-All Exception”]
1. Generally: exception that a judge can invoke when it’s evident that the statement is extremely
reliable but that does not meet the technical exceptions of the hearsay exceptions
2. Rule 807 Elements:
a. Statement not covered by 803 or 804
b. Has circumstantial guarantees of trustworthiness equivalent to other hearsay exceptions
c. Statement offered as evidence of a material fact;
d. Statement more probative on the point than any other evidence which proponent can procure
through reasonable efforts;
e. Interests of justice will best be served by admitting statement; and
f. Proponent provides notice
3.
EX: P brings suit for injury suffered when D’s used car backfired while P is inspecting it; D’s
mechanic handwrote unsworn report of accident while event was still fresh in his mind and w/o
prompting or pressure. D’s mechanic was unavailable (necessity); thus the court allowed the
statement finding it similar to meeting the requirements for past recollection recorded
(trustworthiness) (Turbyfill)
HEARSAY EXCEPTIONS PNEUMONIC DEVICE
Business records
Recorded Recollection
Interest (declaration against)
Excited Utterance
Former Testimony
Contemporaneous Utterance (Present Sense Impression)
Admissions
State of Mind
Everything Else (Residual Exception)
Dying Declaration
Actions causing absence (forfeiture by wrongdoing)
Diagnosis (medical treatment and diagnosis)
CHAIN HEARSAY (“Hearsay on Hearsay” or “Totem Pole Hearsay”)
A. Rule 805: Hearsay included within hearsay is not excluded under the hearsay rule if each part of the
combined statements conforms with an exception to the hearsay rule provided in these rules.
1. Translation: if a statement has hearsay within hearsay, and each one of these links can fit under its
own exception, then the hearsay within hearsay statement is admissible
B. Examples
1. Ex: Woman sees a hit and run accident and immediately writes down the license plate number.
An officer arrives 10 minutes later and records her account of the license plate number. Proponent
wants to offer officer’s writing. Officer testifies that he no longer remembers the number, but at
the time, he writing it down while it was fresh in his mind and that the writing accurately reflected
the information. Admissible?
a. Admissible: Woman’s action satisfies the present sense impression exception; officer
satisfies the past recollection recorded exception.
2.

Ex: business record containing the entry “Telephone call received from X saying his wife was
leaving for Brazil” is not admissible as proof that X’s wife left for Brazil. Even if the record
otherwise satisfies the business record requirements, it is excluded b/c the entrant had no personal
knowledge of the facts, but was merely relying on the inadmissible, out-of-court declaration of
another party