Evidence Outline
Summer 2007
Prof. Elward
GENERAL INTRODUCTION
a.
Competing Stories @ Trial
i. Factual Differences – the prosecution claims that Jim shot the gun; the defense claims that Jim
was in Chicago at the time
ii. Differences in Inferences – in a criminal case, the parties agree as to the facts, but disagree about
the mens rea; what was in ∆s state of mind?

Purpose of FRE
1. Accuracy
 Rationality – does the evidence have a rational relationship to the case?
 Example: offering the fact that ∆ took $10 from you 25 years ago is most likely irrelevant to the current case
2. Reliability – is the evidence credible?
 Example: saying something is true because you deemed it so is not credible
3. Efficiency
4. Fairness
5. Danger of Misuse of Information
 Limiting Instructions – we may allow evidence to be admitted and the judge will give a limiting instruction
that the jury should not use it to inform their opinion on another issue
 Mistrust of Juries – if we are dubious of the jury’s willingness to follow the instructions and the harm from
the evidence greatly outweighs the benefits; we may exclude the evidence from the jury
6. Protect the Right to a Jury Trial
 Judge v. Jury – FRE divides authority between the judge and the jury; it would not be fair to say that the jury
can do nothing but what the judge says
 6th / 7th Amendment – however, the judge must protect the jury prerogative to guard the protections of a jury
trial
7. Privileges
8. Finality

Evidence
a. Trial Evidence  a method of reconstructing something that happened in the past
i. Key concern is fairness; make fair decisions according to the rules
ii. Biases – never collateral; you can always prove bias
iii. “A brick is not a wall”
b. Types of Evidence
i. Direct Evidence: testimony or other proof which expressly or straight-forwardly proves the existence of a fact
ii. Circumstantial Evidence: unrelated facts that, when considered together, can be used to infer a conclusion about
something unknown
iii. Example: if a witness testified that he was out in rain or saw rain from a window while indoors, that testimony
would be direct evidence that it was raining in a specified place at a specified time; if a witness testified that
they had gone underground to catch a train when the weather was dry, but while on the train, noticed passengers
boarding with wet clothes and umbrellas, the testimony would be strong circumstantial evidence that it was
raining in the area

At Trial
a. Factual Differences – the prosecution claims that Jim shot the gun; the defense claims that Jim was in
Chicago at the time
b. Differences in Inferences – in a criminal case, the parties agree as to the facts, but disagree about the mens
rea; what was in ∆s state of mind?

Admissibility  The judge can ascertain admissibility in 2 ways:
1. FRE 104(a): Competency of the Evidence
 Rule: The judge must be persuaded himself, by a preponderance of the evidence, that the
evidence is what you say it is
1. The judge has the power to decide the law, make legal decisions, and answer questions of
admissibility
2. The judge is not bound by the rules of evidence and may look at whatever he wants when
deciding whether or not something is sufficient
 Preponderance of the Evidence
1. The things that must be established in order for the evidence to be used must be more
likely true than not true in the eyes of the judge
2. This is a higher standard than conditional relevance
 Role of the Jury:
1. A jury decides the question of fact as to whether or not to believe a witness
2. Witnesses: a judge will determine one’s qualification to be a witness which is:
a. Some knowledge of the case …AND…
b. An ability to communicate that knowledge to the court
c. Young Child  a party must prove that a young child knows rights vs. wrong
2. FRE 104(b): Conditional Relevance
 Rule: The judge must ask if a jury could hypothetically find that the evidence is what you say it
is. In other words, can they handle the evidence such that they could ignore it if they determine
there is not enough to prove?
1. Occurs when an item of evidence, by itself, has no relevance to any issue at trial, but will
be relevant if the trier of fact has some other information
2. It becomes relevant because it will be linked to other evidence
3. It is almost impossible not to meet this standard!
 Preponderance of the Evidence
1. Look at the evidence in the light most favorable to the proponent of the evidence
2. Ask: can the other side bring forth evidence disputing this that the jury can consider?
 Explanation
1. Evidence A is relevant
2. Evidence B is conditionally relevant by itself and therefore, alone, is inadmissible
3. But, A + B = relevant fact of evidence and both must be allowed to show how B is related
 Example: The prosecution wants to show that ∆ owns a red hat with blue feathers because the
eyewitness saw the murdering wearing the hat
1. The hat ownership alone is not relevant to the question of murder
2. But, coupled with testimony of the eyewitness, it becomes relevant
REQUIREMENTS
Always Remember: there are three possible objections to something offered into evidence
 Relevance  is it relevant?
 Hearsay  is it hearsay or does it meet an exception? are there dangers of unfair prejudice?
 Authenticity  is it authenticated? does the best evidence doctrine apply?
1. RELEVANCE
a.
b.
FRE 401: evidence is relevant if it has any tendency to make an important issue more or less probable
than it would be if we did not have the evidence
i. FRE 402: all relevant evidence is admissible; evidence which is not relevant is not admissible
Logical Relevance – The Relevancy Test
i. Is it logically relevant? What is the evidence being offered to prove?
1. “Relevant” – any tendency to make a fact more or less likely
a.
c.
Any tendency is a very low standard of admissibility and may include
something that otherwise seems irrelevant, but in some way puts part of the
issue into context
b. Example: a personal injury may be unrelated to a witness’s home life, but the
fact that the witness has 2 kids provides a certain amount of background
information to help create a context
c. Relevant Evidence is Pretty Darn Clear
i. Pleadings
ii. Defense
iii. Issues of Credibility
2. “Important Issue” – elements themselves or circumstantial evidence
a. Explain the connection between the evidence and the important issue;
explain the logical chain of inferences
b. May have to argue a general proposition as part of the chain of inferences,
while the opponent will try to discredit the inferences
i. Example: a confession is relevant because of the general proposition
that people ordinarily speak rationally in accord with their interests
ii. Acceptance of relevance will often times depend on the judge/jury’s
acceptance of the general proposition
ii. Recurring Issues of Relevance
1. Guilty Conscience: These examples relate to recurring issues of relevance involving
the admissibility of circumstantial proof. Generally speaking, evidence indicating
consciousness of guilt will be found relevant to prove that the actor was involved in
wrongful conduct. However, evidence of consciousness of guilt is insufficient
standing alone to support a conviction; there may be innocent explanations for the
actions
a. Flight as proof of guilt  evidence of flight is admissible, but does not
create a presumption of guilt or suffice for conviction
i. Classic example of circumstantial evidence used to show
consciousness of guilt
ii. Other possible explanations for flight go towards the weight of the
evidence, not the admissibility
iii. Bottom Line – flight is circumstantial evidence of guilt
b. Similar Kinds of Proof of Consciousness of Guilt
i. False IDs & aliases
ii. Attempts to destroy or conceal evidence
iii. Fabricating evidence or suborning perjury
iv. Bribing public officials
c. Prior Crimes
i. Prior crimes may be admissible to prove motive or intent
1. Example: ∆ committed a robbery, so he needed to steal a
car to get away (motive)
2. Example: ∆ had often sold cocaine, so this time when he
possessed cocaine, he probably intended to sell it (intent)
ii. See FRE 404 RE: character evidence
2. Other Accidents: Evidence of prior accidents is not admissible to prove negligence
or contributory negligence in the accident giving rise to the lawsuit
a. Narrower Purposes: may be admissible to prove an element of a negligence
claim
b. Substantially Similar: to be admissible for a narrower purpose, other
accidents must be “substantially similar” to the one at issue
c. Remoteness: accidents or mishaps occurring at remote times in the past or
under different conditions are usually excluded as irrelevant
Pragmatic Relevance
i. Relevant Evidence Excluded
1.
d.
FRE 403: although relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger or unfair prejudice, confusion of the issues, or
misleading the jury; this is a rule of inclusion that favors admission
a. Excluded Evidence
i. Unfair Prejudice  evidence primarily inflames the jury’s passions;
causes a “knee-jerk” reaction based on an emotional response due to
an improper appeal to emotion
1. Examples: bigotry, racial discrimination
2. Criminal Cases – unfair prejudice is “the capacity of some
concededly relevant evidence to lure the factfinder into
declaring guilt on a ground different from proof specific to
the offense charged”
ii. Confusion  a similar idea to prejudice in that it causes the jury to
become mis-focused
iii. Considerations  of undue delay, waste of time, or needless
presentation of cumulative evidence; if a party has already made its
point, the judge may exclude it from doing so again
b. Look @ narrative value – what part of the opposing party’s story is going to
be hurt if the evidence is not let in
c. Bottom Line – If there is a danger of unfair prejudice, it must substantially
outweigh the probative value of the evidence
2. Alternative Methods
a. If there is a danger of unfair prejudice, ask: is there any alternative method of
proving this evidence
i. Danger v. Less dangerous alternative proof
ii. Example: an offer to stipulate
b. “Needometer”  the greater the need, the more likely the court is to let it in
ii. Limited Admissibility
1. FRE 105: the judge may admit evidence only for a certain purpose and instruct the
jury to consider it for only that purpose
a. Example: Police tell the wife they need the shirt her husband was wearing
last night. W hands them a bloody shirt. Police immediately arrest H.
i. If offered to prove H had a bloody shirt, this act is hearsay; it is
assertive conduct
ii. It is not hearsay if offered to explain why the police arrested him
(effect on listener)
iii. Therefore  the judge can instruct the jury to consider that
evidence only for effect on the listener
2. Evidence that is admissible to prove one point doesn’t necessarily go to prove another
point. The judge can give a curative instruction that the jury is presumed to follow
iii. Rule of Completeness
1. FRE 106: if you offer in a portion of a writing or recorded conversation, the other
side may ask that the remainder of the writing/recorded conversation be admitted
under the rule of completeness
a. Opposing party can require the complete writing/recording to be introduced
on the opposing party’s cross, or can answer an incomplete presentation later
in trial (i.e. rebuttal)
2. FRE 106 trumps the hearsay rule!
a. If only part of a witness’ own statement is being offered, that witness can use
the rule of completeness to get the rest of the statement into evidence, even
though it is hearsay (it would not be a party admission since that doctrine
does not allow one to introduce his own statements)
Character/Propensity Evidence
i. General Rule – FRE 404: character/propensity evidence is not admissible for proving action
in conformity therewith
ii. Character Evidence Defined: “character” for purposes of evidence law means a person’s
tendency (disposition or propensity) to engage or not engage in certain types of behavior
1. Character for truthfulness or untruthfulness
2. Character for being peaceable or prone to violence
3. Qualities of recklessness or carefulness
iii. Uses of Character Evidence: there are 3 different possible uses for character evidence, each
with different rules of admissibility
1. Conduct on Specific Occasion
a. “He had a tendency to act in a certain way, so he probably acted in that way
on this occasion”
b. This is circumstantial or substantive use of CE
c. It is generally prohibited, subject to important exceptions (see 404(a))
2. Element of Charge, Claim, or Defense
a. ∆s character is said to be at issue:
i. Defamation
ii. Negligent Entrustment or Hiring
iii. Character of the Decedent
iv. Child Custody
b. CE will generally be admissible in these instances
3. To Prove Motive, Intent, or Similar Specific Points
a. A person has engaged in conduct that reflects his character or propensities
i. Example  a ∆ repeatedly convicted for burglary is caught entering
someone else’s house and claims he entered by mistake, “I thought
it was my friend’s apartment”
ii. Evidence of prior burglary conviction may be offered to prove
intent and rebut the claim of mistake
b. Evidence of prior bad acts to prove intent and similar narrow points will be
admissible (see 404(b) and 403 for possible exclusion)
iv. FRE 405 – Methods of Proving Character: which of the 3 traditional methods for proving
character is allowed will depend on the use being made of the evidence; what it is offered to
prove
1. Reputation  offered in the form of testimony by a character witness shown to be
familiar with the person’s reputation in the community; doesn’t have to know him
personally but have personal knowledge of the outlook of the community and can’t be
too remote
a. “Relevant Community” – includes geographical area, the workplace, school,
church, and other organizational settings, as well as “virtual” representations
(voicemail, email, conference calls)
b. Reputation testimony is hearsay (it is a distillation of the out-of-court
statements of community members or associates.) See FRE 803(21) for
means of getting it in
2. Opinion  opinion evidence is allowed provided that the proponent shows that the
character witness has an adequate basis in experience to support such opinion; will
require personal knowledge; more than one time “gotta know this person”
3. Specific Instances of Conduct
a. Generally not allowed as proof of character
i. Tends to consume time and divert a trial to side issues
ii. See FRE 412 – 415 for exceptions
b. Allowed on CX – while a character witness may not be asked about specific
instances of conduct on DX, the CX-er can raise these points with certain
limits;
i. Purpose  must be to test the credibility of the witness; it will not
be permitted as actual proof of character, but only for the narrower
purpose of testing knowledge and judgment of the character witness
1. If the CW has not heard of the prior conduct, how much
does she really know? (knowledge is suspect)
2.
If she has heard of the prior conduct, how could she think
the man honest if he is so dishonest? (soundness of
judgment is suspect)
3. The CX-er will most likely score points either way
ii. No Extrinsic Proof  the questioner is not allowed to prove that the
conduct asked about actually happened when the witness denies
knowledge of it
iii. Good Faith Basis  CX must demonstrate a good-faith basis for
believing that the conduct actually occurred
1. A lawyer cannot ask a groundless question to provide the
jury with an unwarranted innuendo
2. Good-faith basis = an official record indicating that the
conduct occurred, statement from a reliable informant, etc.
iv. FRE 403  trial court retains discretion to prohibit CX abut
specific instances of conduct that are insignificant, remote,
conjectural, or otherwise unfair
v. Civil Trials
1. Rule: character evidence is admissible in civil trials if character is at issue, if it is a
central element in the case (see above for details)
a. Defamation (libel/slander) – claiming damage to reputation requires proof of
reputation before the alleged tort; (all three methods used)
b. Negligent Entrustment or Hiring -- ∏ must prove that the entrusted person
was careless in order to show that ∆ was negligent in hiring him
c. Character of the Decedent – in a wrongful death case, the character of the
decedent bears on the worth of the decedent to ∏
d. Child Custody – the best interests of the child depend on the character of
each parent
2. If the character is at issue, then reputation, opinion, or specific instances of conduct
will be admissible
vi. Criminal Cases (character of ∆ and victim)
1. FRE 404(a)(1) – Character of ∆
a. Rule: if relevant to the crime, the defense can offer evidence of a pertinent
trait about ∆ himself through reputation or opinion evidence
i. Entrapment  ∆s character to commit crimes will be pertinent
ii. Battery  peaceful, non-violent will be pertinent
iii. Murder  evidence of reputation as a peaceful person in the
community is pertinent; reputation of honesty would not come in
because it is not relevant
b. Prosecution’s Rebuttal: if the defense first offers evidence of his own
character, then the prosecution can rebut in one of two ways:
i. Call its own character witness to rebut ∆s witness
ii. CX the ∆s character witness; here the prosecution can ask about
specific instances to test the basis of the opinion if:
1. There is a good faith basis for believing that ∆ committed
the bad act
2. The bad act is relevant to the specific character trait the
witness has testified to
2. FRE 404(a)(2) – Character of the Alleged Victim
a. Rule: the defense can offer evidence of a pertinent character trait of the
victim through reputation or opinion evidence
b. Rule: the prosecution can offer evidence if the victim’s character in 2
different situations
i. The defense introduces evidence of a pertinent character trait of the
alleged victim; the prosecution can rebut in 2 of 2 ways (whatever
bounces of me sticks to you):
1.
Call its own opinion witness to testify using reputation or
opinion to rebut the defense
2. CX the defense’s witness and use reputation, opinion, or
specific instances
ii. In a homicide trial, the defense offers evidence that the alleged
victim was the first aggressor; the prosecution may offer evidence
of the alleged victim’s peacefulness to rebut in 1 of 2 ways:
1. Present its own witness to give reputation or opinion
evidence that the victim was peaceful
2. CX the defense’s witness and use reputation, opinion, or
specific instances evidence to show that the victim was
peaceful
c. Sexual Abuse Cases: this rule is qualified by FRE 412
vii. FRE 404(a)(3) - Character of Witnesses: on civil and criminal trials, character of witnesses
may be admissible under FRE 607, 608, and 609
1. FRE 607 – Who May Impeach
2. FRE 608 – Evidence of Character and Conduct of Witnesses
a. FRE 608(a): witness who takes the stand puts their credibility at issue
b. FRE 608(b): CX about specific instances of misconduct that relate to
credibility
3. FRE 609 – Impeachment by Evidence of Conviction of a Crime
viii. FRE 404(b) – Evidence of Other Crimes, Wrongs, or Acts
1. Rule: evidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show that he acted in conformity therewith
a. “Other Crimes”  not necessarily convictions; all that is required is that a
reasonable juror could find that the other crime was committed by this person
2. Exceptions: evidence of other crimes, wrongs, or acts may be admissible for purposes
of:
a. Impeachment
b. For purposes other than proving character (still must pass 403)
i. Motive
ii. Intent (especially when entrapment is a defense)
iii. Absence of Mistake or Accident
1. Example: ∏ claims a fire was an accident; the Insurance
Co. offers evidence of 7 prior fires
2. Using the fires to rebut the claim of accident would be
permissible as “absence of accident”
iv. Modus Operandi (signature crime, idiosyncratic)
v. Identity
1. Must go to a distinctive, detailed pattern of criminal
behavior that identifies something about the ∆
2. Is not offered for propensity except in cases claiming
entrapment
3. See Rule 414 re: prior sexual abuse of children
vi. Knowledge
vii. Opportunity (skill/capacity to commit)
1. Example: evidence that a man drugged his wife to sleep
while he abused her daughter
2. May be used to show opportunity to commit a crime (could
also fall under “preparation”)
viii. Preparation
ix. Prior plan or scheme
3. This evidence will come in under the state’s case-in-chief (mainly used by
prosecutors), but can be brought in by either side in civil cases
4.
Notice Requirement: because this evidence can be strongly damaging and the
relevance test may be difficult, the rule entitled the opposing party to notice if the
other side intends to rely on 404(b)
5. Relevance Test  does the probative value of the evidence substantially outweigh
the prejudicial effect; proponent must make 2 connections:
a. Between ∆ and past conduct
b. Between past conduct and current charge (show a unique pattern)
6. Miscellaneous Notes
a. Crimes of Dishonesty – false claims, embezzlement, bank fraud, perjury,
theft (in IL) shall be admitted
b. Entrapment -- ∆ says he lacked the intent of the crime; evidence of ∆ saying
she wanted to kill her husband 6 months earlier will come in to show “intent”
or “prior plan/scheme”
c. Prior Acquittals – may be admissible to show ∆ had “knowledge”; even if ∆
had been acquitted, evidence of a possible connection with those crimes may
be used against him
ix. FRE 406 – Habit and Routine Practice
1. Habit: evidence of habit of a person is relevant to prove the conduct of the person on
a particular occasion was in conformity with the habit
a. 2 Requirements of Habit
i. Particular and Specific
ii. Frequent and Recurrent
b. Theory is that evidence of habit tends to prove that behavior conformed to
the habit or custom; it is less likely to carry moral overtones or present
serious dangers of unfair prejudice of confusion
2. Routine Practice: evidence of routine practice of an organization is relevant to prove
the conduct of the organization on a particular occasion was in conformity with the
routine practice
3. Examples
a. Arranging for child care before going out
b. Leaving a turn signal on after changing lanes
c. Approaching railroad crossings slowly
d. Crossing a certain street in the crosswalk
e. Deportation procedures of INS
f. Firing procedures of an organization
g. Doctor’s speech give to patients regarding informed consent
x. FRE 407 – Subsequent Remedial Measures
1. Definitions
a. “Subsequent” = after your injury (not someone else’s) and not after the item
was made
b. “Remedial Measures”
i. Change in design
ii. Installing protective devices or warnings
iii. Removal of a dangerous condition
iv. Revision of a K
v. Discipline or dismissal of an employee
vi. New Warnings
c. Remember: subsequent remedial measures are inadmissible under 407 only
if undertaken voluntarily; if forced by the government to fix the problem,
407 is not applicable
2. Subsequent remedial measures are not admissible to prove:
a. Negligence
b. Culpable Conduct
c. Defect in Product
d. Defect in Design
e. Need for Warning or Instruction
3.
Subsequent remedial measures are admissible to prove:
a. Ownership
b. Control
c. Feasibility of Precautionary Measures
i. Must be raised by ∆; for example, “this is state of the art”
ii. ∏ can then rebut with evidence of it being fixed later
d. Impeachment
i. Example: “there was no hazard,” impeach with “you fixed it, didn’t
you?”
ii. “If it’s state of the art, then why did you fix it?”
xi. FRE 408 – Civil Settlement Negotiations
1. Rule: an exclusionary principle that excludes settlement agreements and statements
regarding efforts to reach a settlement when offered to prove the liability or the
invalidity of the claim or its amount
2. The evidence will not be admissible if:
a. A claim is disputed as to liability or damages
b. There is a genuine intent to compromise
c. As to the validity or amount is at issue
d. The idea is that allowing the evidence penalizes people for making offers and
if that were the case, many cases that would have settled will not
3. Evidence may come in to:
a. Prove prejudice or biases of a witness
b. Rebut a claim of undue delay
c. Demonstrate the terms of an agreement once it has been reached (i.e. if a K
has been broken, evidence of offers of negotiation may be entered)
d. Prove an effort to obstruct a criminal investigation or prosecution
xii. FRE 409: Payment of Medical and Similar Expenses  evidence of
furnishing/offering/promising to pay medical, hospital, or similar expenses occasioned by an
injury are not admissible to prove liability for the injury (doesn’t get rid of “I should’ve paid
attention” stated by ∆ if in a companion statement
xiii. FRE 410 – Plea Bargaining in Criminal Cases
1. Rule: the following are not admissible against a ∆ in civil or criminal cases:
a. Guilty plea that was later withdrawn or a guilty plea that was rejected by the
prosecutor
b. Plea of no contest
c. Any statement made during Rule 11 proceedings
d. Any statement made in plea discussions with the prosecuting attorney that do
not result in a guilty plea
e. Any statement made in plea discussions with the prosecuting attorney that
result in a guilty plea later withdrawn
2. Exceptions
a. In a proceeding where another statement made in the course of the same
plea/plea discussions has been introduced and fairness requires that the
statement be considered with it (rule of completeness) …AND…
b. In a criminal proceeding for perjury or false statement if the statement was
made by ∆ under oath, on the record, or in the presence of counsel
3. What is a “plea discussion” ?
a. Did ∆ exhibit an actual subjective expectation to negotiate a plea?
b. Was the expectation reasonable given the totality of the circumstances?
c. Was the prosecutor present and was it reasonable to believe that plea
discussion was occurring (both sides must be intending to engage in plea
bargaining)
xiv. FRE 411 – Proof of Insurance Coverage
1.
Rule: existence of liability insurance is not admissible to prove that a person acted
negligently or wrongfully (or if made in a companion statement like “I should’ve paid
attention” then this part is still admissible)
2. Admissible to prove:
a. Agency
b. Ownership
c. Control
d. Bias or interest in outcome
e. Prejudice of a witness
xv. FRE 412 – Rape Shield Statute
1. General Rule: in any civil or criminal proceeding involving alleged sexual
misconduct:
a. Evidence of a victim’s prior sexual behavior or history is not admissible
b. Evidence to prove a victim’s sexual predisposition is not admissible
c. Inadmissible Examples
i. Venereal Diseases
ii. Use of Contraceptives
iii. Pregnancy
iv. Manner of Speech
v. Dress
2. Exceptions
a. 412(b)(1); Criminal Case  the following are admissible:
i. Evidence of specific instances of sexual behavior by the victim to
prove that someone else is the source of:
1. Semen
2. Injury
3. Other Physical Evidence
ii. Evidence of specific instances of sexual conduct between the victim
and ∆ to show consent if consent is a genuine issue
iii. As the Constitution would require; if the victim is charging rape
because she does not want the person she lives with to know of the
sexual relationship with ∆, ∆ can use evidence that she lives with
someone else to prove motive to lie (Olden v. Kentucky)
1. 6th Amendment
b. 412(b)(2); Civil Case  evidence to prove the sexual behavior or
predisposition of the victim is admissible if:
i. It is otherwise admissible under the rules
ii. The probative value substantially outweighs the danger of harm to
any victim and unfair prejudice to any party
iii. The evidence has been placed in controversy by the alleged victim
c. Prior False Allegations  prior false allegations of rape are admissible
under 608(b) and prior instances of conduct relating to credibility
xvi. Evidence of Similar Crimes
1. FRE 413: Sexual Assault Cases  where ∆ is charged with sexual assault, evidence
of ∆s commission of another similar sex offense is admissible and may be considered
on any matter to which it is relevant; including propensity (if the judge rules
admissible, it will come in as part of the prosecution’s case-in-chief)
2. FRE 414: Child Molestation Cases  where ∆ is charged with child molestation,
evidence of ∆s commission of another child molestations is admissible and may be
considered on any matter to which it is relevant
3. FRE 415: Civil Cases  where ∆ in a civil case is charged with sexual assault or
child molestation, evidence of ∆s commissions of another sexual assault or child
molestation is admissible and may be considered on any matter to which it is relevant
4. Remember
a. “Offense” does not require a conviction
b. FRE 403 still applies!
2.
HEARSAY
a.
b.
The Rationale for the Rule
i. Policy Reasons  there are three policy justifications for the rule against hearsay
1. Cross Examination – we prefer live testimony over out of court statements and the
hearsay doctrine helps protect the rights of parties to cross examine witnesses
a. Critical component of the search for truth
b. Direct testimony may be stricken, therefore, if the witness cannot be CX-ed
c. CX would have little effect if out-of-court statements were freely admissible
even though the declarant never testified
2. Oath – the safeguard of the oath quells any impulses to lie and may impose on the
witness the obligation to take care and be serious in testimony
3. Demeanor – the factfinder deserves the right to watch the witness as she testifies and
assess credibility in part on the basis of mannerisms, voice, facial expressions, etc.
ii. Constitutional Underpinnings  6th Amendment guarantees criminal ∆s the right to confront
the witnesses against them, including the right to CX
iii. Hearsay Risks  the following testimonial dangers can be minimized or reduced with trial
witnesses because of safeguards such as CX; when hearsay is admitted, there may be no
opportunity to CX if the declarant is not also a witness
1. The Risk of Misperception  witness or declarant may have misperceived the event
she is describing because of sensory error (poor eyesight), physical circumstances
(poor lighting), or other factors (distraction)
2. The Risk of Faulty or Failed Memory  even if the witness or declarant correctly
perceived the event, she may not remember it accurately; she may have forgotten
important details or confused them with the circumstances of some other similar event
3. The Risk of Narration / Ambiguity  when a witness describes a vehicle as being
“red” she may have really seen a color that could more accurately be describes as
orange or maroon; similarly, she may describe a car as swerving to the left when she
really meant the right
4. The Risk of Insincerity  a speaker may lie or distort (consciously or unconsciously)
in reporting about the perceived event
FRE 801 Definition  an out of court statement, other than the one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted
i. Part I: “Out of Court”
1. A statement other than one made by the declarant while testifying at the trial or
hearing
2. Wet Cement Doctrine  put the statement in quotes; it does not matter that the
declarant is now in court
ii. Part II: “Statement” - means oral assertion, an assertion in a record, or nonverbal conduct of
a person who intends it as an assertion
1. Verbal Expression – can be oral or written
a. Assertive Intent  almost every verbal utterance, oral or written, is both a
statement and an assertion
i. “Assertion” – an attempt to communication with someone or to
express ideas or information in words
ii. “Verbal Assertion” – any intentional expression or communication
of ideas or information using words
b. Forms of Expression
i. Declarative Sentences – “John is pointing his gun at me”
1. Subject, verb, and object
2. A strong factual claim that expresses ideas or information;
John is pointing his gun at the declarant
ii. Requests or Commands – express ideas and information, even
though indirectly; for example, “John, don’t shoot me”
Main purpose is to communicate the speaker’s request not
to shot and his desire not to be shot
2. Indirectly, the declarant is asserting that John is poised to
shoot the declarant. This indirect meaning is part of what
he intends to express and it is hearsay if offered to prove
that point
iii. Questions – Dan is charged with robbing a bank. The bank teller
identifies the gun that was pointed at her as a .38 special. As
evidence that Dan once owned that kind of gun, the prosecutor
offers testimony by Rose that she heard Daryl ask Dan, “Do you
still own that .38 special? I’d like to buy it”
1. This question asserts that Dan once owned a .38 special
2. It is hearsay if offered to prove that point, even though the
words referring to the gun are contained in a question
c. Multiple Assertions  a single verbal expression may contain many factual
assertions and the expression will be considered hearsay if offered to prove
the truth of any of them; example:
i. A pilot says to passengers, “because we’ve used a lot of fuel facing
the high winds, we’re going to have to make an emergency landing
in Peoria.” This statement makes three assertions
1. The plane is low on fuel
2. The flight has been experiencing high winds
3. The pilot intends to land in Peoria
ii. This statement will be hearsay if offered to prove any of these
points
d. Indirect Assertions  sometimes people make statements that express facts
indirectly; example:
i. Richard, treasurer of his church, is charged with embezzlement of
church funds. At trial the prosecutor offers the testimony of
Gertrude that she heard Richard and his sister Ruth have an
argument in which Ruth said, “at least I’ve never stolen money from
my church”
1. If the prosecutor offers this testimony as evidence of
Richard’s guilt, it should be excluded as hearsay
2. Ruth implies in her statement that Rickard stole money
from the church and it was apparently Ruth’s intention to
assert this point
ii. Her statement is therefore offered to prove the point asserted
indirectly
e. Nonassertive Verbal Expressions  some verbal expressions are not
intended by the declarant to make a factual assertion and therefore are not
hearsay; examples:
i. Singing a song, acting a play, reciting poetry are not normally
intended by the declarant to assert the truth of the words used
ii. ∆ is charged with running a booking operation out of his premises.
Witness testifies that when he answered ∆s phone the caller on the
other end said, “Secretariant to place 3rd.” Caller’s statement will
not be hearsay because even though it was verbal, it did not intend
to assert, “I am talking to a betting parlor” or anything else
Non-verbal conduct of a person intended by that person as an assertion
a. Assertive Conduct – the conduct must be intended to have been an assertion
and offered to prove its truth; the justification is that sometimes an actor
intends conduct to be a communication or expression of ideas/information
and the conduct is simply a substitute for words, for example:
i. Example #1: Eunice, who is mute, observes a car accident. Using
sign language, she gives her version of what happened to Mary, an
1.
2.
b.
interpreter. Mary testifies at trial about Eunice’s observations, but
Eunice does not appear.
1. Mary’s testimony is subject to a hearsay objection.
2. Eunice is expressing and communication ideas and
information in conduct that is the equivalent of words
ii. Example #2: The DEA investigates a marijuana smuggling ring
operating across the Mexican border. Sometimes the drugs are
hidden in motor homes and driven across the border. Other times
they are hidden in fishing boats and smuggled in by sea. Rodriguez,
a DEA informant, infiltrated the right in Mexico. He agreed to send
up a signal flare to alert DEA agents that a shipment was being sent
and how it was being transported; 1 flare meant by land, 2 meant by
sea. On Oct. 20, Rodriguez sent up two signal flares
1. If this evidence of conduct is offered to prove that a drug
shipment was sent by sea on that day, it will be hearsay
2. The conduct was an expression of information and
intended to assert that drugs were being sent by sea
iii. Example #3: Hank is about to be released from prison. He does not
know whether his wife wants him to return home, so he writes and
asks her to tie a yellow ribbon to the mailbox if she wants him back.
He writes that he will be on a bus going through town and will stop
if he sees the ribbon. Marge drapes the entire from yard with
yellow ribbon
1. If offered to prove that Marge wants Hank back, the fact
that she draped yellow ribbons will be considered hearsay.
It is assertive even though it speaks no words
2. However, it would likely be admitted as hearsay under
FRE 803(3)
Nonassertive Conduct – conduct is nonassertive if the actor does not intend
to make an assertion
i. 2 Step Inference – a hearsay issue is likely to arise when
nonassertive conduct is offered to support a 2-step inference about
an act, even or condition:
1. The act suggests what the person is thinking
2. Since the actor thinks something is so (and he is in a
position to know), it probably is so
ii. Example – Surviving relatives of persons lost at sea bring suit
against Farway Shipping Co. for sending out an unseaworthy ship
that sank. As evidence that the ship was seaworthy, Farway offers
proof that it was piloted by an experienced captain who inspected
the ship before departing and took his family along on the voyage.
1. 2 Step Inference: it is offered to establish that:
a. The captain believed the ship to be seaworthy
after his inspection (or he wouldn’t have sailed
away and taken his family)
b. The ship was, in fact, seaworthy
2. The conduct is hearsay if offered for the purpose of
showing that the ship was seaworthy
iii. Hearsay Dangers
1. Misperception – captain may have overlooked something
in making his inspection and thus misperceived the
seaworthiness
2. Faulty Memory – he may have forgotten a dangerous
condition after making the inspection
Ambiguity – he may have thought that the ship needed
repairs, but went on the trip anyways because there was no
other available transportation
4. Bottom Line: CX of the captain is necessary to check
against these dangers, and the evidence is, therefore,
hearsay
iv. Performative Aspects  statement with performative aspects are
not hearsay
1. Ask: is there a performative aspect to this statement; if
there was not an intention to assert the matter it is now
being offered for, it is not hearsay
2. US v. Singer: a letter was addressed and sent to ∆ at his
home; this was offered to prove that he lived at the address
a. Issue: is the letter hearsay?
b. Holding: No; its purpose was not to assert that ∆
lived there. It would be hearsay if the letter was
intended to make the assertion, but it was only
intended to evict ∆
Example and Analysis
i. Example: A wrongful death suit is filed on behalf of Adrien who
was killed in a car accident. It is important to know when Adrien
died because it bears on the issue of damages for pain and suffering
prior to his death. As evidence that Adrien died at the scene of the
accident, ∆ calls Officer Johnson to testify that he saw the
emergency paramedic check for a pulse and then pull a sheet over
Adrien’s face before loading him into the ambulance.
ii. Analysis
1. Common Law  this testimony is hearsay; it is offered for
the 2 step inference:
a. From the conduct of the paramedic, the factfinder
is invited to infer that he believed Adrien was
dead at the time
b. From the paramedic’s belief, the factfinder is
invited to infer that Adrien was, in fact, dead at
the time
2. FRE 801  admissibility depends on whether paramedic’s
conduct was assertive or not; can be argued either way
a. Assertive – pulling the sheet over Adrien’s face is
an expression by the paramedic of the idea that
Adrien is dead; hearsay, not admissible
b. Nonassertive – more likely conclusion; not
hearsay under 801, admissible
FRE v. Common Law
i. FRE 801  only assertive conduct can be considered hearsay; at
common law, conduct could be hearsay whether assertive or not
ii. Intent  whether conduct is assertive or nonassertive depends on
the intent of the actor
iii. Burden of Proof
1. CAN to FRE 801(a): “when evidence of conduct is offered
on the theory that it was not a statement, and hence not
hearsay, a preliminary determination will be required to
determine whether an assertion is intended; the rule is so
worded as to place the burden upon the party claiming that
the intention existed and ambiguous/doubtful cases will be
resolved in favor of admissibility”
3.
c.
d.
2.
Burden is on the objection party (the party claiming
hearsay) to persuade the court that the conduct was
assertive
iii. Part III: “Offered for the truth of the matter asserted”
1. Identify the Purpose  we must determine whether or not an out-of-court statement
is offered to prove the truth of the matter asserted; that determination can be made
only if one knows the purpose for which the statement is offered
WHAT IS NOT CONSIDERED HEARSAY?
c.
Statements Offered for Nonhearsay Purposes  out-of-court statements are often times used for
nonhearsay purposes, but are not listed in the FRE; the 6 most common examples are:
i. Impeachment: a statement is not hearsay if it is used only to impeach the trial testimony by
the declarant testifying as a witness
1. The fact that he testifies to one version of facts at trial, while having given an
inconsistent version earlier, may undermine his credibility
2. Example: Cody is charged with holding up a 7-11 store at 9:30 p.m. and murdering
the clerk. he asserts an alibi defense claiming he was at a movie with his girlfriend
Dixie at the time. Dixie testifies that she and Cody were at a movie together from 8 –
11 p.m. that day. On CX, Dixie is asked whether she told police the morning after the
murder that she and Cody were together at their apartment for the entire evening and
did not go out.
a. The earlier statement is admissible for the nonhearsay purpose of
impeaching her trial testimony
b. The prosecutor is not trying to prove the truth of Dixie’s earlier statement
(that Cody was at the apartment at the time of the murder)
c. The fact that Dixie has made inconsistent statements about Cody’s
whereabouts makes it less likely that the jury will believe her alibi testimony
at trial
ii. Verbal Acts: a statement is not hearsay if it is a verbal act or part of an act
1. Usually refers to utterances that have an operative effect under substantive legal
principles.
a. For example, words of offer and acceptance can form a binding legal K and
words demanding that a victim relinquish his wallet can be part of the crime
of robbery
b. In these situations, the dichotomy between words and conduct disappears;
uttering words is a form of conduct and words are acts or parts of acts
2. Independent Legal Significance
a. Example – At a auction, if you raise your card (assertive conduct), that
would generally be considered hearsay. At an auction, though, there is an
independent legal significance because it shows you are making an offer
(words of K), and would not be considered hearsay
i. The mere fact that the assertive conduct occurred brings legal
consequences
ii. The proponent is not using it as an assertion to prove truth
b. Example – Zeke is charged with robbing a bank. Judy, the bank teller,
testifies that Zeke pointed a gun at her head and said “Give me all of your
money. If you do anything dumb, someone will get hurt”
i. Statement is admissible as the verbal part of the act of robbing a
bank
ii. His pointing a gun and uttering the words is an act of force that is an
element of robbery
iii. The prosecutor will not offer the words to prove that Zeke intended
to hurt someone
Ambiguous Examples – these ambiguous scenarios constitute independent legal
significance when paired with words
a. A gives B $; this is ambiguous without words giving it meaning. If A says,
“this $ is for the debt I owe”, it can be admitted into evidence because
otherwise, we do not know what the act means.
b. A gives B car keys; this is ambiguous on its own but if you pair it with “go
park my car” or “Happy Birthday”, then it has meaning
iii. Proof of Effect on Listener or Reader: a statement is not hearsay if it is offered to prove its
effect on a listener or reader;
1. Sometimes out-of-court statements notify, warn, or threaten the person who hears
them and when they are offered only to prove that they had a particular effect on the
person hearing/reading them, they are no hearsay
2. Example – Evelyn slips on ice while taking out the garbage. She files a civil suit for
damages against he owner of the building. In his answer, the owner alleges that E
was C/N in going down stair she knew were covered with ice. To prove his defense,
the owner calls Jack, the maintenance man, to testify that just before the fall, he yelled
to E, “those stairs are really icy, don’t go down them” and the E ignored the warning
a. Jack’s statement is admissible as nonhearsay because it is offered to prove
that E was aware of the icy condition and, therefore, negligent in going down
the stairs
b. The statement is not offered to prove that the steps were really icy (to prove
its truth)
iv. Verbal Markers / Objects: if there are statements written on an object, they are not
considered hearsay because they are being used for identification
1. Examples: when offered as circumstantial evidence, as an identifying mark, the
following are not hearsay
a. Sweatshirt with “Stanford is #1” written on it is not hearsay; we don’t care
about the truth of the matter asserted (that Stanford is #1) and it is not offered
to prove that
b. License plates or insignia on the care indicating the make/model are not
hearsay because they identify only the thing that is marked; they do not
assert anything (we don’t care what kind of car it is, we care that a witness
saw ∆ driving a blue Chevy Caprice)
c. A matchbook from a restaurant  could be offered in to show that it was
more likely that ∆ had been to the particular restaurant, but not to show that
the restaurant is located at the address printed on the matchbook
2. Example and Analysis
a. Duane is prosecuted for stealing Sally’s Apple computer from the library at
10:15 while Sally was in the bathroom. The computer was never found, but
S testifies that D was the only other person studying there at the time and did
not have a computer with him. George testifies that he saw D running down
the steps of the library at 10:17 carrying a computer with the insignia
“Apple” on it.” D objects that the testimony is hearsay if offered to prove
that the computer D was carrying was an Apple.
b. Overruled; “Apple” is a verbal marker that helps ID the computer D was
carrying. If S has testified that her computer is an Apple and described it as
having the insignia, G’s testimony involves the use of “Apple” as a verbal
marker and it is not hearsay
v. Circumstantial Evidence of State of Mind: verbal conduct which is assertive but offered as a
basis for inferring something other than the matter asserted is not considered hearsay
1. Possible Uses
a. To show declarant’s knowledge
b. To show declarant’s sanity
c. To show declarant’s emotion
2. Examples
3.
Husband wants to prove loss of companionship of his dead wife and ∆ offers
wife’s will in which it says she hate’s her husband. This statement is
circumstantial evidence that goes to what the wife thought and felt.
Therefore it is not hearsay
b. Betts v. Betts: in a custody dispute over D, D told foster mother that the
stepfather killed her brother and is going to kill mommy
i. Issue: is this statement hearsay if offered to show that it is in the
best interests of the child to live with her father instead of the
mother and stepfather?
ii. Holding: no; it is not offered for the truth of the matter asserted (that
he killed and is going to kill), but rather to show D’s state of mind
which is relevant to a best interest determination
vi. Circumstantial Evidence of Memory, Knowledge or Belief: a statement whose purpose is to
prove the act, event or condition is remembered (as opposed to the memory itself) may fall into
this category if it displays knowledge that is sufficiently distinctive so that relevant inferences
can be drawn without relying on the truth of the statement
1. The Papier-Mache Man – victim’s description of the room where she alleges she was
abused is offered to show that she was there. The statement is admissible because it is
not offered for the truth of the matter asserted (that the room looked a certain way),
but to show that she has a memory that she would not have if she had not been there
2. Example – as proof that J had been in the law library before, evidence that upon
enteriin she said to the librarian, “please give me the key to the locked cage in the
basedment so that I can look at Starkie on Evidence” coupled with proof that the book
is, in fact, in a locked cage in the location. This is not hearsay, it is circumstantial
evidence of her knowledge
FRE 801(d)(1)(A); Prior Inconsistent Statements: prior inconsistent statements are not hearsay and
can be offered as substantive evidence (for the truth of the matter asserted) if 3 requirements are met:
i. Declarant testifies at trial and is now subject to CX concerning the prior statement
1. US v. Owens  held that if a witness cannot remember, he is still considered crossexaminable; as long as the witness is the witness put on the stand, memory is
irrelevant
2. This is a low threshold!
ii. Statement is inconsistent with declarant’s testimony
1. Inconsistency = any material omissions or additions
2. If a witness does not recall at trial, this is inconsistent
iii. Statement is given under oath at a “trial, hearing, or other proceeding, or at a deposition”
1. “Proceeding”  Look @ whether the statement was made in a solemn, serious
situation with enough reliability such that it should be accepted even though it is
technically hearsay; examples of proceedings:
a. Grand Jury Proceedings; ex parte proceeding
b. Preliminary Hearings
c. Prior Trials
d. Administrative Hearings
e. Station house statements are generally not considered proceedings
2. If the statement is not made under oath, it can be admitted for the limited purpose of
impeachment, but not for the truth of the matter asserted
3. There is no requirement of opportunity for CX when the prior inconsistent statement
was made
FRE 801(d)(1)(B); Prior Consistent Statements: prior consistent statement are not hearsay and can be
offered as substantive evidence (for the truth of the matter asserted) if 4 requirements are met:
i. Declarant testifies at trial and is now subject to CX concerning the prior statement
ii. Statement is consistent with declarant’s testimony
1. “Consistent” = the same ideas, not necessarily the same words
2. Cannot add additional facts
iii. Offered to rebut a charge of:
1. Fabrication
a.
d.
e.
f.
g.
2. Improper Influence
3. Motive
iv. Prior statement must be made before the fabrication, improper influence, or motive occurred
1. Rule of Tome: prior consistent statement has to have been made before the motive to
fabricate was present; cannot rehabilitate a witness who has been impeached with a
prior consistent statement made after the motive to fabricate/undue influence arose
2. Note that the first statement does not have to have been made under oath
FRE 801(d)(1)(c); Prior Statement of Identification: identification of a person made after perceiving
the person is not hearsay and can be offered as substantive evidence (for the truth of the matter asserted)
if 2 requirements are met:
i. Declarant testifies at trial and is now subject to CX concerning the statement
ii. The statement is one of identification of a person made after perceiving the person
1. “Perceiving” = seeing, hearing a voice, etc.
2. State v. Motta: an artist’s composite sketch made from a description given after the
witness perceives the person qualifies as a statement
3. The witness needs to be in court and have made a prior ID; it does not matter whether
or not the person can or does accurately ID in court
iii. The statement will be admissible even thought it was not made under oath or at a formal
proceeding
1. Example: V, the robbery victim, is walking down the street the day after the robbery
when she spots D. She says to her friend H who is walking next to her, “that’s the
robber.” H will be permitted to repeat this statement at D’s trial even though W’s
statement was not made under oath or at a proceeding
2. Mis-Identification  A witness previously identified person X and then in court
identifies person Y. Under FRE, the prior ID will come in as substantive evidence.
But, the inconsistent statement can then be used to impeach
FRE 801(d)(2); Admissions by a Party Opponent: admissions by a party opponent are not hearsay
and can be offered as substantive evidence (for the truth of the matter asserted) if the statement is
offered against the party
i. 5 Types of Admissions
1. Personal Admission  the party’s own statement
a. Must be “across the V”; if the case is ∏ v. ∆1 and ∆2, ∆1s statement cannot
be used against ∆1 by ∆2, but ∆1s statement can be used against ∆2 by ∏
b. Special Situations
i. Drunken Statement  admissible
ii. Injured Declarant  admissible/judgment call by judge
iii. Sleep Talking  not admissible
iv. Hallucinations  admissible
v. Criminal Case  if ∆ pleads guilty in a criminal case, the guilty
plea is admissible in a later damage suit for the same incident
1. Pleadings from prior lawsuits and interrogatories are
admissions
2. Pleas of “no contest” are not admissible because they are
too ambiguous
3. Bruton v. US – in a criminal case against 2 ∆s, a statement
by one ∆ is not admissible against another; confrontation
clause applies and admitting the statement would violate
that clause
2. Adopted Admission  statement of which the party has manifested an adoption of
belief
a. 3 Requirements
i. ∆ heard the statement
ii. ∆ understood the statement
iii. A reasonable person under the circumstances would take exception
b. Witness Statements  statements made by a party’s witness during DX are
considered adopted by the party unless the party challenges at the time
Silence  a party’s silence in the face of another’s statement may indicate
agreement
i. Example: D flashes a large wad of bills. X, his g/f, says to W, “D
got that $ as his piece of the bank job last week.” D’s silence here
will probably be found to show that he agreed with X’s statement
and will be admissible as an adoptive admission
ii. Post arrest silence is never admissible as an adoptive admission
3. Authorized Admissions  a statement by a speaking agent authorized to make a
statement concerning the subject matter
a. Requirements
i. Statement is made by a person authorized to make a statement
1. Must establish this relationship by preponderance of the
evidence
2. Judge can consider the statement itself in deciding
authority, but the statement alone is not enough
ii. Statement must concern the subject matter the party was authorized
to speak on
b. Examples
i. Current Pleadings  binding on those who file them and binding as
judicial admissions
ii. Other Pleadings  generally admissible against the party who
signed or authorized them to be filed; statements in such pleadings
are not binding and can be contradicted by the party at trial
iii. Interrogatories  answers to interrogatories are viewed as
authorized admissions in the suit in which they are filed as well as
later suits; are evidentiary admissions only and may be contradicted
by party’s testimony
iv. Requests to Admit  responses filed under FRCP 36 are judicially
binding in the lawsuit in which they are filed, but inadmissible in
any other litigation
4. Admissions by Agents & Employees  statements made by the party’s agent or
servant
a. 3 Requirements  the statement itself is not enough to prove the existence of
the relationship
i. Statement made by agent or servant (establish agency by
preponderance of the evidence)
ii. Made during the existence (the course) of the relationship
iii. Concerning a matter within the scope of the agency or employment
b. Mahlandt v. Wild Candid Survival – declarant does not need to have personal
knowledge of the underlying facts of the statement
5. Co-Conspirator Statements  statements made by a co-conspirator of a party; for
these to be admissible, you must establish 3 things:
a. The conspiracy
i. Conspiracy = An agreement to commit an illegal act + some act in
furtherance of the agreement
ii. Proven by preponderance of the evidence
b. Statement made during the course of the conspiracy
i. When a conspirator enters an on-going conspiracy, he is held to
have adopted the earlier statements of fellow co-conspirators and
they will be admissible against him
ii. Post-Arrest Statements  generally not in the course of or in
furtherance of the conspiracy
c. Statement was made in furtherance of the conspiracy
FRE 803: UNRESTRICTED Hearsay Exceptions  in these situations, it does not matter if
declarant is available or unavailable; these statements are considered hearsay, but are exceptions to the
exclusionary rule and will be admitted
c.
h.
i. FRE 803(1): Present Sense Impressions
1. Requirements
a. Timing  Statement is made at or about the time of the event; there is no
time to corroborate or fabricate
b. Perception  statement is made while perceiving the event
c. Content  statement relates to what is being perceived; it describes the
events
2. Example: A woman driving a Pinto is stopped by a policeman and he says he won’t
ticket her if she has sex with him. She says she is going to sue him. In court she says
that he took off really fast and she followed him. At the time of the event, 2 people
were talking over walkie-talkies. One said to the other, “hey look how fast the police
car is going and look at that little Pinto go after him!” This statement would come in
as a present sense impression of the event to support her in-court testimony.
ii. FRE 803(2): Excited Utterances
1. Requirements
a. Startling Event  determined by a subjective test; do not use the reasonable
person
b. Declarant was under the impression of the startling event
c. Statement relates to the startling event itself
2. United States v. Iron Shell
iii. FRE 803(3): Then Existing Mental, Emotional, or Physical Condition
1. Uses  creates a hearsay exception for statements by a declarant describing her
current physical condition or mental state; may be used to prove:
a. The mental state itself
b. Future conduct by the speaker
c. Cannot be used to prove the truth of memories or beliefs about events in the
past (unless they relate to execution, revocation, or terms of declarant’s will)
2. Explanations
a. Physical Condition – statements describing current ailments, pains, and
injuries fall within the exception even if not made to a doctor
i. Must relate to current physical condition and can support inferences
about recent past/immediate future
ii. Example: it may be inferred that a declarant who complains of a
broken arm in the morning was probably not practicing violin that
afternoon
b. Proving Mental State – statements by declarant revealing a mental state
(particularly of a victim or party) may be highly relevant
c. Proving Future Conduct – mental state of the declarant, as shown by a stateof-mind statements, can be used to prove future conduct; if he says he
intends to do something, he is more likely to do this
i. Hillmon: Supreme Court approved use of a statement of intent (“I
intend to go with Hillmon”) to prove future conduct (declarant did
go with Hillmon)
ii. This doctrine should be limited; state-of-mind statements are
admissible to prove declarant’s future conduct, but not future
conduct of another person
iii. Rule: we will let in a statement of intent to prove a future act if:
1. It only refers to the declarant
2. It refers to someone else and we have sufficient
corroborating evidence (this hardly ever occurs in criminal
cases because of the potential for prejudice)
iv. FRE 803(4): Medical Diagnosis or Treatment
1. Requirements
a. A statement made for purposes of treatment or diagnosis
i. “Diagnosis” – figuring out what is wrong
ii. Commonly arises in situations of personal litigation injury involving
a personal injury
iii. Statement does not have to be made to a doctor so long as the
purpose was to get medical care
b. Statement must be reasonably pertinent to the diagnosis or treatment
i. Limited to “why you’re lame, not who to blame” or “why you’re
sore, but nothing more”
ii. Identifying cause is admissible, but who is at fault is generally not
admissible
2. Who Can Make the Statement?
a. Most common speaker is the injured party to a doctor or nurse
b. Parent or guardian
c. Doctor to doctor
d. Good Samariatan
v. FRE 803(5): Recorded Recollection
1. Requirements
a. The witness lacks present recollection of the matters; he cannot remember
what happened and refreshing recollection will not work
b. A memorandum or record concerning the matter will enable that witness to
testify fully and accurately
c. The memorandum is shown to have been made or adopted by the witness
when the matter was fresh in the witness’ memory
d. The memorandum or record accurately reflects knowledge about which the
witness once had personal knowledge (i.e. first hand)
e. This is the only hearsay exception where the declarant must be on the stand
2. Presenting the Record
a. If all requirements are met, the recorded recollection can be read into
evidence, but not entered into evidence by the offering party
b. The adverse party is the only party who can enter it into evidence
vi. FRE 803(6): Business Records
1. Requirements
a. Regularly Kept Business Records
i. “Business” = ongoing enterprise that follows a routines
1. Defined broadly; includes one person operations,
professions, companies, corporations, charitable
institutions
2. The exception applies even to illegal activities such as
gambling
ii. “Records” = routinely made, on a repetitive basis
1. Made by people acting in regular course of their work
2. The exception does not apply to personal records (i.e.
checkbooks, diaries, etc.)
b. Source with Knowledge Acting in the Course of Employment
i. Source of the records must have personal knowledge and must be
acting in the course of employment
ii. This exception includes “layered hearsay” (info passed along a
chain of people before it is ultimately recorded), but the source must
be a person who saw or observed what was recorded
c. Contemporaneity
i. When a record reflects an event, it must be made close to the time
of the event
ii. Computer output generated after information was entered into
memory is OK and so are investigative findings analyzing a certain
source
d. Foundation
i. Requires testimony by (or a signed certificate from FRE 902.11) the
“custodian or other qualified witness”; someone who knows how
the record was prepared
ii. Ideally this is someone who helped prepare the record, but a witness
with “circumstantial knowledge” will suffice
2. Risks  was the record made in anticipation of litigation; if so, it is most likely
inadmissible because of the lack of trustworthiness
3. Examples
a. Petrocelli v. Gallison – while it may include an opinion, source of the info
must have personal knowledge; in this case, a doctor’s notes that would have
been business records were excluded because they simply restate what the
patient told him
b. Guest Book – a hotel’s guest book where ∏ signed himself in is not a
business records because ∏ made the record and he is not an employee or
agent of the business
vii. FRE 803(7): Absence of a Business Record
1. A custodian or affidavit may be offered to prove the nonoccurrence or nonexistence of
the matter; the requirements are the same as 803(6)
2. Example: ∆ claims he went to Loyola but the school has no record of enrollment; a
custodian or affidavit may be brought in to prove he didn’t go there
viii. FRE 803(8): Public Records
1. Requirements
a. Records, reports, statements, or other forms of data compilation (these records
are self-authenticating if certified)
b. Of a public office or agency with a duty to keep such a record
2. May be used to prove:
a. Activities of Office or Agency  includes almost anything that public agencies
do; serving papers, issuing tickets, disbursing checks, selling equipment, etc.
b. Matters Observed  includes matters observed pursuant to duty imposed by
law as to which there was a duty to report those observations
i. Cannot be used against a criminal ∆, but may be used by a criminal ∆
ii. Examples
1. Code violations by building inspectors
2. Preamble from a state law stating that a river is navigable
3. Records prepared by the CEA concerning prices of a
commodity
iii. Hypo: An IRS agent does a field audit of T’s tax return @ T’s house.
T claims a deduction for a home office but the agent does not find
one. The agent’s report may be introduced in a later civil suit as it
relates to whether or not T had a home office. However, his
observation that T possessed cocaine would not be admissible since
the agent had no duty to report non-tax related matters
c. Investigative Reports in civil actions and criminal cases, if offered against
the government, factual findings resulting from an investigation made pursuant
to authority granted by law will be admissible
i. These reports are not allowed against criminal ∆s. If a police
investigator writes a report about a series of events, that report will be
admissible in a civil suit, but not against a criminal ∆
ii. Examples
1. Studies on Toxic Shock Syndrome prepared by CDC
2. Reports on statistics on accidents prepared by the Consumer
Products Safety Commission
iii. Look at factors indicating trustworthiness
1. Timeliness of the investigation
2. Use of hearing procedures
3. Motivation of the investigator
i.
ix. FRE 803(9): Records of Vital Statistics
1. Includes birth certificates, death certificates, marriage certificates, and other such
records
2. Made to a public office pursuant to the requirements of law
x. FRE 803(10): Absence of Public Records or Entry
1. Admissible to prove that the record does not exist
a. Diligent search
xi. FRE 803(11): Records of Religious Organizations
xii. FRE 803(12): marriage, Baptismal, and Similar Certificates
xiii. FRE 803(13): Family Records
xiv. FRE 803(14): Records of Documents Affecting an Interest in Property
xv. FRE 803(15): Statements in Documents Affecting an Interest in Property
xvi. FRE 803(16): Ancient Documents
1. Document is over 20 years old
2. Found in a proper place
3. Does not appear to be tampered with; authenticity can be proven
xvii. FRE 803(17): Market Reports, Commercial Publications
xviii. FRE 803(18): Learned Treatises
1. Can be used to impeach an expert witness or may be read by an expert witness. The
treatise is not received into evidence as an exhibit
2. Requirements
a. Expert witness on the stand who can interpret the learned treatise
b. Statements published in a learned treatise
c. Established as a reliable authority by:
i. Witness agreeing it is a treatise
ii. Another expert acknowledging it as such
iii. Judge can take judicial notice
xix. FRE 803(19): Reputation Concerning Personal or Family History
xx. FRE 803(20): Reputation Concerning Boundaries or General History
xxi. FRE 803(21): Reputation as to Character
1. Generally considered pure hearsay; this exception allows it in
2. Reputation for purposes of character are hearsay, but admissible as an exception
xxii. FRE 803(22): Judgment of a Previous Conviction
1. Requirements
a. Evidence of a final judgment either:
i. After trial
ii. After plea of not guilty (not after a plea of no contest)
b. For a felony
c. To prove a fact essential to sustain a judgment
2. Criminal Cases  the prosecutor cannot introduce prior felony convictions of 3 rd
persons for purposes other than impeachment; felony convictions of 3 rd parties may only
be used to impeach
xxiii. FRE 803(23): Judgment as to Personal, Family, or General History, or Boundaries
FRE 804: UNAVAILABLE DECLARANT Hearsay Exceptions
i. FRE 804(a): A declarant is deemed “unavailable” in 5 different situations
1. FRE 804(a)(1)  witness claims a privilege
a. Spousal Privilege
b. Attorney – Client Privilege
c. Doctor (Psychotherapist) – Patient Privilege
d. Self-Incrimination Privilege (more common in criminal cases; witness takes the
stand and pleads the 5th)
2. FRE 804(a)(2)  witness refuses to testify
a. On the stand, witness declines to answer and does not cooperate when ordered
to answer
b. The Rule contemplates a threat of contempt if witness ignores a Court order to
answer
FRE 804(a)(3)  witness testifies to a lack of memory
a. Applies to a witness who testifies that he does not remember “the subject
matter” of his prior statement
b. US v. Owens
i. Held that if the witness takes the stand, he is technically subject to CX
even if he cannot remember
ii. Under 804 if he can’t remember he is unavailable by definition, but
Owens says you may still cross this witness
c. Issue  Can a witness be subject to cross under 801(d)(1), but yet be
considered unavailable under 804(a)?
i. Yes.; a person may remember making the statement well enough to be
CX-ed about it, even though he has forgotten the underlying events
(thus making him unavailable under 804)
ii. Remember: Rule 801(d)(1) refers to prior statement by witness, and
Rule 804(a) to declarant unavailable
4. FRE 804(a)(4)  unavailable due to death or physical/mental illness
a. Weigh the following factors:
i. What is the nature of the illness and expected time of recovery?
ii. Will the person suffer physical/psychological damage from testifying?
iii. What will be gained by the testimony?
iv. What is the reliability of the evidence?
b. Ultimately the judge will decide if the person is unavailable for this reason
5. FRE 804(a)(5)  witness is outside the reach of the court
a. Applies to a party who cannot be obtained by the court
b. Offering party must use process or other reasonable means in attempting to
contact declarant:
i. Process may be served on someone in jail
ii. Process may be served on someone in another state
iii. Process may be served on US citizens or nationals in other countries
iv. If witness is beyond the reach of a subpoena, he may still be invited to
attend with expenses paid
v. Absence of a good faith effort may result is a Confrontation Clause
issue
c. Criminal Case – offering party must make extraordinary efforts to obtain the
witness
6. Note: a declarant is not considered unavailable if the only reason they are unavailable is
due to the wrongdoing of the proponent of the statement for the purpose of preventing
the witness from attending or testifying
ii. FRE 804(b): if a declarant is found to be “unavailable”, then the following hearsay evidence will
not be excluded under the usual hearsay rules
1. FRE 804(b)(1)  Former Testimony Exception; requirements
a. First: Declarant is unavailable
b. Second: Witness testimony was given at another hearing of a same or different
proceeding, or in a deposition during the course of the same or another
proceeding
i. “Hearing / Proceeding”  any official inquiry in which sworn
testimony was taken
1. Prior Trials
2. Preliminary Hearing
3. Grand Jury Hearing
4. Deposition
ii. Not Included  affidavits (State v. Smith), statements to officers
during investigations
c. Third: whichever of the following two applies:
i. Criminal Case: the opposing party must have had an opportunity and
similar motive to develop the testimony by DX, CX, or Re-DX
3.
2.
3.
4.
ii. Civil Action: a predecessor in interest had an opportunity and similar
motive to develop the testimony by DX, CX, or Re-DX
d. Note  The party seeking to keep the former testimony out must show that at
the prior proceeding, his interests were not adequately represented
FRE 804(b)(2)  Dying Declarations; requirements:
a. First: Must be a homicide or civil action; the theory is that a person who is
about to die would not lie before he dies
b. Second: Declarant is unavailable
c. Third: Statement was made by a declarant who believed his or her death was
imminent; you show this through:
i. Circumstantial Proof  is there circumstantial proof indicating that
declarant believed he was going to die?
1. He was hit by a bus going 75 m.p.h.
2. He was shot in the chest
ii. Other Statements  did declarant say anything to others that might
suggest he thought he was going to die?
iii. This is ultimately a decision for the judge under 104(a)
1. The person does not have to end up dying
2. So long as he believed at the time he made the statement that
death was imminent and he is now unavailable, it will come
in
d. Fourth: Statement concerns the cause or circumstance of what the declarant
believed to be his impending death
i. This includes:
1. Prior threats and quarrels
2. Physical pain or sensations
3. Matters inhaled, ingested, injected
ii. The statements must be based on personal knowledge (i.e. the dying
declarant cannot claim to know who shot him in the back)
FRE 804(b)(3)  Declarations Against Interest
a. 2 Types of Declarations Against Interest
i. Against Penal Interest – declarant is exposed to criminal liability
ii. Against Monetary Interest – declarant is exposed to civil or pecuniary
liability
b. Presumption  you would not make a statement that would expose you to
these kinds of liability unless it were true; therefore, we let in this hearsay
because of its reliability
c. Requirements
i. First: Declarant is unavailable
ii. Second: Declarant has reasonable knowledge when making the
statement that they are exposing themselves to liability
1. Measured by an objective standard
2. Does it hurt the speaker more than it helps him?
iii. Third: Statement is so against declarant’s interest at the time that it
was made such that a reasonable person in declarant’s position would
not have said it unless it were true
d. Criminal Cases
i. Statements to Exonerate the Accused: corroborating evidences must
“clearly indicate” the trustworthiness of the statement
ii. Statements Implicating the Accused: not considered firmly rooted and
are admissible only if surrounding circumstances clearly indicate
trustworthiness of the statement
FRE 804(b)(4)  Statements of Personal or Family History
a. Requirements
i. Declarant is unavailable
5.
6.
7.
ii. Information about Declarant – even if it is not based on declarant’s
person knowledglede, the statement must concern the declarant’s own:
1. Birth or Adoption
2. Marriage or Divorce
3. Legitimacy
4. Relationship by blood, adoption, or marriage
5. Ancestry
iii. Information about Another Person – a statement concerning the
foregoing matters, and death, of another person if the declarant was
related to that other person or intimately associated with the family
b. Examples
i. My parents told me I was born in Maryland
ii. Ben is my brother
iii. Statements as to motive or purpose do not fall under the exception (“I
married him so that he could get residency)
FRE 804(b)(5)  not FRE 807
FRE 804(b)(6)  Statements Admissible because of Forfeiture by Misconduct
a. Requirements
i. Declarant is unavailable
ii. Statement is offered against a party who has engaged or acquiesced in
wrongdoing that was intended to, and did, make the witness
unavailable
b. Examples
i. Persuasion and/or control by ∆
ii. Directing a witness to plead the 5th
iii. Threats by ∆ or others acting on his behalf
FRE 807  The Catchall Exception
a. Requirements
i. No other hearsay exception applies; this is a last result
ii. The statement has a circumstantial guarantee of trustworthiness
1. Look at the statement itself aside from corroborating
evidence
2. State v. Weaver – factors to consider
a. Declarant’s propensity to tell the truth
b. Was the statement made under oath
c. Assurance of personal knowledge
d. Time between the event and the statement
e. Delarant’s motivations
f. Reaffirming or recanting statement by declarant
g. Credibility of the witness reporting the statement
h. Opportunity for CX (even if they don’t)
iii. The statement must be offered as evidence of a material fact (in other
words, its relevant)
iv. The statement is more probative than any other evidence that the
proponent could procure through reasonable efforts (i.e. its necessary)
v. Justice is served by admission
vi. Proponent must give the other side timely notice
1. Stating intention to offer the statement
2. Particulars of the statement
3. Name and address of declarant
4. The other side must have fair opportunity to prepare to meet
it
vii. Must satisfy the Confrontation Clause
b. Bottom Line  when all else fails, if it sounds like another exception and its
close, then we will probably let it in (even thought it is not firmly rooted)
i. Child Abuse Cases: often used to admit statements by the child
describing the abuse
ii. Ohio v. Roberts: ∆ stole checks from his friend’s mom but said he had
permission from the friend; at preliminary hearings, friend says he
never had permission and then disappears so she is unavailable.
1. Can the prosecution get this in denial in?
2. Yes. There is a great need and the declarant is unavailable.
The defense chose not to CX, but had the opportunity to
iii. Confrontation Clause  when a statement falls into a hearsay exception and the statement is
offered against a criminal ∆, this becomes an issue since there was no opportunity to CX
1. To satisfy CC rights, the state must prove that the statement has the requisite indicia of
reliability through:
a. Firmly Rooted Exception
i. 801(d)(2)
ii. 803(1)
iii. 803(2)
iv. 803(3)
v. 803(4)
vi. 803(5)
vii. 803(6)
viii. 804(b)(1)  prosecution must show that declarant is unavailable
ix. 804(b)(2)
b. A particularized guarantee of trustworthiness
i. Totality of the circumstances around the making of the statement must
provide this “particularized guarantee of trustworthiness”
ii. Do not look to corroborating evidence, only the circumstances
surrounding the statement
2. Crawford v. Washington – in a criminal case, the 6th Amendment applies; testimonial
hearsay by an unavailable declarant where there was no prior opportunity to CX violates
the constitution
iv. Hearsay for the Defense  for example, ∆ may argue that his right to confront a witness
includes a right to hearsay by X, to prove facts conflicting with testimony and to impeach the
witness
1. Rule: a criminal ∆ has a right to present an effective defense and, therefore, traditional
hearsay rules may be trumped by ∆s right to put on his case
2. Chambers v. Mississippi – traditional rules of evidence violated ∆s Compulsory Process
Rights because they prevented him from presenting important and reliable evidence
a. Held  the CC trumps the rules about hearsay
b. Held  the voucher rule can impeach your own witness (FRE 607)
3.
Competency of Witnesses
a. FRE 601: witnesses are presumed to be competent, with few exceptions
i. State Law  In civil actions/proceedings with respect to an element of a claim or defense as to
which State law supplies the rule of decision, the competency of a witness shall be determined in
accordance with State Law
ii. Dead Man’s Statutes  block claimants who sue estates from testifying in support of their cases
1. This is one type of such a state law
2. Miscellaneous – state doctrines, statutes, or rules may block or limit the use of affidavits
or testimony by jurors from being used to attack or set aside verdicts (with exceptions)
b. FRE 602: witnesses must have personal knowledge (or be an expert witness) to testify
i. Young and Old  while there is no age too young to testify, many states limit the use of children
as witnesses (see below); no age is too old, but circumstances may make a witness unavailable
and matters related to capacity (i.e. failing memory, eyesight, hearing) can be raised on CX
ii. Felons  convicted felons are not disqualified from testifying; convictions can be used to
impeach as matters relating to “character for truth and veracity” (FRE 609)
4.
iii. Insane Persons  people suffering from mental illness are qualified to testify; mental problems
may be explored on CX as matters that effect credibility because they relate to “capacity”
(sometimes medical records or psychiatric testimony is admitted)
iv. Children  must show that:
1. The child understands what it means to tell the truth
2. The child understands the consequences of telling a lie are
c. FRE 603: witness must commit to tell the truth
d. Judges, Jurors, and Lawyers
i. FRE 605: Judges
1. Judges may not testify in cases in which they preside
2. FRE 614 allows a judge to question a witness; if the judge is asking a series of leading
questions in which he is essentially testifying, this is reversible error and the judge
should testify before another judge
ii. FRE 606: Jurors
1. 606(a): Pre-Verdict Testimony; a member of the jury cannot testify as a witness at that
trial and if a juror is called, the other side may object outside the presence of the jury
2. 606(b): Post-Verdict Testimony
a. A juror may not testify to:
i. Any matter or statement occurring during deliberations
ii. Anything upon that or any other juror’s mind/emotions
iii. Anything that influenced the juror
1. Anything about the mental processes in connection with
deliberations
iv. A juror may testify if
1. There has been extraneous prejudicial information brought to
the attention of the jurors
a. Example: A juror reading a newspaper
b. Tanner v. US
2. Outside influence was improperly brought to bear upon a
juror
a. Jurors using drugs or drinking during the
trial/deliberations
b. As held in Tanner, these are not external influence
and jurors cannot testify to them
3. Lawyers as Witnesses
a. Technically lawyers may be witnesses in cases where they are acting as
counsel, but a judge can exclude such testimony or require counsel to withdraw
form the case first
b. This violates the Code of Professional Responsibility
c. Lawyers cannot be witnesses for a client (Elward)
Presenting Evidence
a. Direct Examination
i. FRE 611: generally speaking, on DX, there are no leading questions, only open-ended ones
1. The theory is that the witness is supposed to be the focus and we want the witness to tell
the story
2. Cannot ask, “isn’t it true…”
ii. 4 Exceptions  leading questions are ok…
1. When necessary to develop the witness’ testimony in the case of:
a. A child witness
b. A forgetful witness
c. A witness with mental defect
2. When the witness is uncooperative
a. Hostile Witness
b. Adverse Party
c. Witness Identified with Adverse Party
3. When the rule is more trouble than its worth
b.
c.
d.
a. Preliminary or foundational matters (i.e. witness’ name)
b. Matters that are not contested
4. When memory seems exhausted
a. “Is your memory exhausted?”
b. “Would anything refresh your recollection?”
c. Remember, anything can be used to refresh recollection (pictures, scents,
songs)
Cross Examinations
i. General Rule: leading questions are allowed
1. The attorney is essentially the testifying witness
2. CX is used to test the witness’ credibility
3. Rare Exception: you cannot lead when the witness is your own client or aligned with
your client (ex: ∏ in a civil case calls ∆ and ∆s counsel CXs him; ∆s counsel cannot ask
leading questions)
ii. Scope: scope of CX is limited to the subject matter of DX (some courts may permit inquiry into
additional matters as if on DX)
iii. FRE 612: Writing Used to Refresh Memory
1. Rule: if a writing is used to refresh the memory of a witness for the purpose of
testifying either (1) while testifying or (2) before testifying, the adverse party is entitled
to:
a. Have the writing produced at the hearing
b. Inspect the writing
c. CX the witness on it
d. Introduce into evidence those portions which relate to the testimony of the
witness
2. James Julian: if an attorney uses attorney work product documents to prepare a
witness before trial or to refresh recollection during a trial, then the work product
privilege may be waived and it is therefore discoverable by the other side
Excluding a Witness (“Invoking the Rule”)
i. FRE 615: witnesses may be asked to leave the courtroom during other witness’ testimony so that
they cannot hear the testimony and then tailor theirs to fit that of the previous witness
ii. Exceptions; you cannot exclude:
1. 615(1): a party to the case
2. 615(2): an officer/employee of a corporation party
3. 615(3): a person whose presence is shown to be essential to the presentation of a party’s
case (i.e. an expert)
4. 615(4): a person authorized by statute to be present (i.e. victims of crimes are authorized
by federal statute to be present)
a. Note: this allows a criminal ∆ to testify last @ trial and there is a good
possibility it will be consistent with everything else that has been said
b. You can comment during closing on the fact that ∆ was permitted to sit there,
hear everyone’s testimony, and then talk
Impeaching a Witness  under FRE 607, anyone can impeach a witness, even the calling party, through:
i. Bias or Motivation  you want to show that the witness has an interest, pre disposition,
prejudice, or favoritism that will effect her testimony
1. Types of Bias
a. Familial relationship (i.e. a mother who is called as a witness)
b. Romantic relationship
c. Members of the same club
d. Witness who is paid to testify
2. Relevancy – bias is always relevant since witness credibility is always at issue (the right
to impeach on bias is in the rules)
3. Collateral Evidence
a. Bias is never collateral and you can always prove it up by extrinsic evidence
(i.e. bringing in another witness)
b. You must have a good faith basis to ask and can never harass the witness
ii. Sensory and Mental Capacity  you want to show a defect in sensory or mental capacity
1. May be brought during CX or proved by extrinsic evidence when the attacking party
presents his case
2. Examples
a. Drugs and Alcohol  an attacking party may show that the witness was under
the influence of drugs or alcohol at the time of the events or even during trial
b. Mental Illness  party may CX on mental afflictions or illness including
treatment or stays in medical institutions
iii. Character for Truth and Veractiy  you want to show a disposition for untruthfulness and the
rules recognize three means of proving untruthfulness:
1. FRE 608(b): CX on Non-conviction of Misconduct (specific instances of misconduct
relating to dishonesty/prior bad acts)
a. General Idea – one way to suggest that a witness is disposed to be untruthful is
to bring out instances of misconduct that seem to bear on veracity; note that
these prior bas acts can only be shown through CX and not through extrinsic
evidence
i. Lying on employment applications
ii. Using false names or aliases
iii. Accepting Bribes
iv. Specific instances of cheating others
v. Tax fraud
b. Safeguards – trial judges have the discretion to block even well-founded
questions
i. Misconduct must be related to dishonesty
ii. Must have a “good faith” basis for bringing it up
iii. Must pass 403; prejudice cannot substantially outweigh probative
value
c. Remember
i. Under 404(b), you cannot prove someone committed a particular act
by showing that they committed some other bad act of similar nature.
Here, though, the prior bad acts are being offered to show the witness
is untruthful, not to show they acted in accordance with character
ii. No Extrinsic Evidence  this is a collateral issue and prior bad acts
may only be proved through CX
2. FRE 609: CX on Convictions
a. General Rule: Past convictions include felonies and crimes of dishonesty and
may be used to impeach either the criminal ∆ or another witness
i. “Conviction”  when using convictions to impeach, it does not matter
how the plea got on the books (plea, found guilty, no contest, etc.);
they are all admissible
ii. Pardons  convictions are not admissible if there was a pardon for
rehabilitation and there was no subsequent felony in the next year, or
there was a pardon for innocence
iii. Pendency of Appeals  convictions on appeal are admissible
b. Analysis
i. Who is being impeached?
1. Criminal ∆
2. Other Witness
3. Remember that FRE 609 is about impeachment, and can only
be used if the person takes the stand
ii. What kind of conviction is being brought in?
1. Felony
2. Crime of Dishonesty
iii. Does it fall within the time limit?
1. Rule: the conviction have to have been less than 10 years ago
a.
c.
d.
e.
Start Date = date of conviction or release from jail
(whichever is later)
b. End Date = when the case starts
2. If the conviction was more than 10 years ago, the judge may
still decide that probative value substantially outweighs
prejudicial effect and let it in
iv. After this analysis, find the proper category:
Felony Conviction Against Criminal ∆
i. Rule: ∆s felony conviction will only be admitted if the probative
value outweighs the prejudicial effect; this is a rule of exclusion
founded on the fact that it will be hard for the jury to consider ∆s prior
felony conviction only on the issue of credibility and not on the issue
of guilt
ii. The judge will consider the Gordon factors:
1. What was the prior conviction?
a. Nature of the crime
b. Example - crimes of violence do not have much to
do with credibility and, therefore, may not be
admitted
2. Was the conviction recent or remote?
a. The more remote, the greater the chance of
exclusion
3. How similar is the prior crime to the current charge?
a. If the crimes are too similar, there is the danger that
the jury will convict on propensity, and therefore it
will probably be excluded
4. The nature of the criminal record
a. If there are a lot of priors, the judge is more likely to
allow a few to be admitted
5. How important is it that ∆ testify?
a. If it is very important, that ∆ testifies, the judge will
exclude the conviction to allow for that testimony
6. Does the jury need to evaluate ∆s credibility?
a. Example – it is ∆s word against informant’s word;
the jury will need to evaluate his credibility
b. The judge will admit conviction because the jury
should know about priors (since ∆s credibility is
important)
7. Other considerations or anything else relevant
a. Example – if ∆ pled not guilty in the past and was
then found guilty, this suggests less credibility
Felony Conviction Against Another Witness
i. Test: this only has to pass the 403 analysis; it will be excluded only if
the probative value is substantially outweighed by the danger of unfair
prejudice
ii. This is a rule of inclusion, the conviction will probably come in
Crimes of Dishonesty Against ∆ or non-∆ witness
i. Test: these are always admitted, there is no 403 analysis (this is the
best way to get in priors)
ii. “Crimes of Dishonesty”
1. Fraud
2. Embezzlement
3. Filing False Claims
4. Perjury
5. False Statements
6. Criminal Fraud
7.
8.
9.
Counterfeiting
Forgery
Theft
a. Federal Court – not a crime of dishonesty unless
there is more to it (look at the underlying facts of the
crime)
b. Illinois
iii. Analysis  look to past crimes and ask, looking behind the actual
crime, to the underlying facts, was it a crime of dishonesty?
1. Dishonesty involved in the commission of the crime?
2. If you can argue that there is, then there is no need for a 403
balancing test
f. Juvenile Adjudications
i. Never admissible against criminal ∆
ii. Generally not admissible against other witnesses
iii. May be admissible against non-∆ in a criminal case if all three of the
following are true:
1. Witness is an adult
2. Prior adjudication would be admissible to attack witness’
credibility
3. Admission is necessary for a fair trial
a. Usually arises when Confrontation Clause rights are
in conflict with the policy of making juvenile
records secret
b. Davis v. Alaska: ∆ had a right to CX prosecution’s
witness to show bias; ∆ was allowed to CX on past
juvenile adjudication which suggested that the
witness had a motivation to implicate ∆
(confrontation clause trumps)
g. Appealing a Judge’s 609 Decision
i. Judge allows priors and ∆ decides not to testify  ∆ cannot later
appeal that priors should have been kept out; he waives the issue if he
decides not to testify
ii. Judge allows priors and ∆ testifies
1. If in his own case in chief, he fronts his conviction; if he
brings it up himself on DX, he has waived the issue and
cannot appeal
2. If ∆ does not introduce it himself on DX, but is then
impeached with the prior on CX, then ∆ can appeal the
decision to let in the prior conviction (this is the only time ∆
can appeal
3. FRE 608: Reputation or Opinion of Untruthfuless  you want to introduce
testimony by a character witness that the principal witness is, by reputation or opinion,
untruthful; 2 general rules:
a. FRE 608(a)(1): opinion and reputation are admissible to show untruthfulness
b. FRE 608(b)(2): evidence of a truthful character is only admissible after the
witness’ character for truthfulness has been attacked
i. You can’t fix what isn’t broken
ii. Criminal ∆  by taking the stand, a criminal ∆ opens himself up to
this kind of evidence, even if he does not affirmatively state that he is
a truthful person
c. Example: ∏ has made an attack on ∆s credibility. ∆ can call a witness who
will testify that ∆ has an opinion for being a truthful person. ∏ can then CX on
specific instances
iv. Prior Inconsistent Statements
1. “Inconsistent”
a.
b.
2.
3.
Straight contradiction
Omission or addition of a material fact under circumstances where witness
would not have admitted it before
c. Failure to recall something under circumstances were it is unlikely he has
forgotten
d. Any change in position which suggests the witness is lying on the stand
If a witness’ testimony is inconsistent with prior statements, the attacking party
may:
a. CX on these statements:
i. Material Inconsistency  the party can prove the inconsistency by
extrinsic evidence
1. Example: witness says to police that ∆ ran the red light and
on the stand says that ∆ had a green light
a. Is the first statement useful for any other issue
besides saying that W said 2 different things?
b. Yes. It goes to who is at fault. It will be let in
2. You do not have to show the statement to the witness, but the
witness must be given opportunity to explain
3. Note: the issue of bias is never collateral, it is always
material
ii. Immaterial Inconsistency  the statement is being offered only to
show a contradiction, for no other reason; in this case, the party is
stuck with the witness’ answer and cannot bring in extrinsic evidence
Constitutional Limits on Impeachment
a. Pre-Arrest Silence
i. Rule: to impeach ∆ in a criminal case with pre-arrest silence, ∆ must
take the stand and in his trial say something that, if it were true, he
would have made the statement when police arrived, before he was in
custody
ii. Jenkins v. Anderson  ∆ stabbed and killed Doyle Redding and was
charged with 1st degree murder. ∆ claims he was acting in selfdefense despite the fact that he did not say anything to police before
he was arrested 2 weeks later
1. Court said a reasonable person would have brought up this
defense prior to being arrested; the fact that he did not
suggests this version is not true
2. This use of pre-arrest silence to impeach ∆s credibility does
not violate the 5th or 14th ammendments
b. Post-Arrest Silence
i. Pre –Miranda; Fletcher v. Weir  Murder case, defense is self
defense. When the cops arrive to arrest Weir, he spends 15 minutes
getting ready, without saying a word. At trial Weir claims self
defense and alleges that the knife was in his truck back at his house;
the knife was never produced.
1. On CX, the prosecution brings up this post-arres, premiranda silence to impeach his credibility
2. Rule: you can show that under these circumstances, ∆ should
have said something. This silence was allowed in to impeach
ii. No Miranda Given; Harris v. New York  Harris is on trial for
selling drugs, he is arrested but never read his Miranda Rights. A
motion to exclude a statement that shows Harris is guilty is granted.
Harris was never coerced and made the statement willingly
1. Harris takes the stand and says he sold the cops baking
powder and the prosecution impeaches him with the nonmirandized statements (even though his remedy was
exclusion)
2.
e.
Rule: otherwise inadmissible evidence is barred from the
government’s case in chief, but may be used to impeach
a. The exclusionary rule is a shield, not a license for
perjury!
b. Coerced statement may not be used to impeach
c. Post-Custodial Silence  there is no such thing as a post-custodial adoptive
admission; there is no impeachment through admission by silence
4. Abuse of 607: impeachment by a prior inconsistent statement cannot be employed as a
“mere subterfuge” to get before the jury otherwise inadmissible evidence
a. You cannot call a witness for the sole purpose to impeach using otherwise
inadmissible hearsay
b. Example – a party calls a witness they know is going to impeach himself, and
then offer otherwise inadmissible hearsay in order to “impeach” him
v. Contradiction
1. Impeachment through contradiction may be done in two ways:
a. Cross Examination  getting the witness to admit he is wrong
b. Extrinsic Evidence  showing the witness was wrong; the extrinsic evidence
must be relevant for some other purpose (see below)
2. Extrinsic Evidence – if extrinsic evidence is not otherwise admissible, it will only be
allowed in if the ∆ either:
a. Made specific false statements on DX
b. Volunteered false statements on CX
i. US v. Havens
ii. Rule: If ∆ testifies and denies knowledge of otherwise constitutionally
inadmissible evidence, he has opened the door. On CX, that otherwise
inadmissible evidence can be used to impeach his asserted lack of
knowledge
Repairing Credibility
i. General Rules
1. You cannot repair credibility before an attack occurs
2. Whatever repair is done must be related to the attack (you can only fix what has been
broken)
ii. 3 Ways to Repair Credibility
1. Rebut Impending Attacks
a. If a party anticipates a claim of bias against a witness, then on DX:
i. Any party may have an expert say that he is being paid for services
ii. Any party may bring out that a witness has been convicted of crimes
iii. The prosecution may bring out that his witness has made a plea
bargain
iv. Any party can bring out a connection between the party and the
witness
b. Other than these 4 situations, the calling party cannot support credibility until it
has been attacked. While anticipatory rehabilitation is not allowed, you can
front that bad stuff. That’s not rehabilitating
2. Evidence of Truthful Character
a. FRE 608(a): a party may support a witness’ credibility through reputation or
opinion if:
i. The party is referring only to character for truthfulness
ii. The opposing side has already attacked the witness’ truthful
character
b. Specific instances will only be allowed on CX
i. Example - ∏ has made an attack on ∆s credibility. ∆ can attempt to
repair by calling a witness who will testify for being a truthful person
ii. ∏ can then CX on specific instances
3. Prior Consistent Statements
a. Prior consistent statements may be used to repair credibility if:
f.
i. The statement is consistent with court testimony
ii. There has been a charge of improper motive or fabrication …AND…
iii. The prior statement was made before the motive to fabricate arose
b. FRE 801(d)(1)(B): Prior consistent statements are not hearsay if they are
offered to refute a claim of improper motive or fabrication, rather than being
offered for the truth of the matter asserted
i. If this test is satisfied (all 3 factors above), then the prior statement
may be used as substantive evidence
ii. If it is not satisfied, it is only admissible for rehabilitation, not
substantive proof
c. Example  If ∏ claims that ∆ does not remember the events anymore, ∆ can
offer a prior statement that is consistent with his testimony to show that he has
always remembered things this way.
i. Here there is no charge of fabrication or improper motive
ii. Therefore, it does not fit 801(d)(1)(B) and will be allowed for
rehabilitation, but not as substantive proof
4. Miscellaneous – other ways to repair credibility
a. Explain a conviction
b. Explain an inconsistency
c. Explain a bias
d. Explain the ability to perceive
Opinion / Expert Testimony
i. FRE 701: Lay Opinion Testimony
1. Lay Witnesses
a. Must take an oath
b. Must testify from personal knowledge
c. Must state facts rather than opinions; unless the opinion/inference is:
i. Rationally based on the perception of the witness
1. Hypothetical Situations  lay witness cannot answer; “let’s
assume my client…”
2. Perception  “the car was going too fast” is ok
ii. Helpful to the trier of fact
iii. Not based on scientific, technical, or other specialized knowledge
2. Lay Witnesses May Testify As To:
a. Mental or physical condition of a person
b. Emotions manifested by an act (based on personal observation of behavior)
c. Speed of a moving object
d. Odors, flavor, color
e. Temperature (hot v. cold)
f. Time, distance, weight, height, size, quantity, masure
g. Value
h. Age
i. Intoxication, sickness, health
j. Voice, handwriting
3. Watch For….
a. A lay witness who interprets what a person said or did
b. Example – “He said, “I went to get the potato” and I knew that meant
marijuana”
i. Witness has not been qualified as an expert
ii. Cannot be speculating as to what this means
ii. FRE 702: Testimony by Experts
1. Requirements
a. An expert must be qualified
b. The information must be relevant and reliable
2. Qualified
a. Expert must have:
i. Some specialized knowledge, education, training, or skill not available
to the general public
ii. That will assist the trier of fact
b. Opinion must be formed with a reasonable degree of certainty
c. Expert must have a basis for the opinion
i. Old Rule  had to be generally accepted in the field
ii. New Rule  if the methodology that the expert used is reliable, then
we will let it in (judge will decide)
iii. FRE 703: Basis for Expert Testimony; expert opinions may be based on:
1. Personal knowledge; facts known or perceived before trial
2. Information made known or perceived at trial
a. Based on information about the case learned at trial (i.e. from listening to other
testimony)
b. Based on a hypothetical question given at trial
3. Facts reasonably relied on by experts in the field, even if based on otherwise
inadmissible evidence:
a. The facts or data will be that are otherwise admissible will be subject to a
balancing test (presumed inadmissible) and will be disclosed to a jury only if:
i. It is reasonably relied upon by experts in the particular fiend in
forming opinions/inferences on the subject
ii. Probative value substantially outweighs the danger of unfair prejudice
(rule of exclusion)
b. If the facts pass the balancing test, the judge must give a 105 limiting
instruction
iv. Review  Is the Expert Testimony GRREAT?
1. Gatekeeper for the expert testimony is the district judge who decides (in respect to
abuse of discretion) if the testimony is…
2. Reliable
a. Look @ Daubert factors:
i. Can the technique or theory be tested or replicated?
ii. Has the technique or theory been subject to peer review or
publication?
iii. If it has been tested, what is the known or potential error rate?
iv. Are there standards in place governing the operation of the technique?
v. Is the technique or theory generally accepted in the scientific
community?
b. Others to consider (in determining which method will go to the jury)
i. Non-judicial uses of the technique (unrelated to litigation)
ii. Novelty of the method and, subsequently, its relationship to other
methods in the community
iii. Qualifications of the scientists who formed them
iv. Any professional literature and/or criticixm
3. Relevant (does the information fit the case)
4. Evidence that will
5. Assist
6. The trier of fact (it must be helpful to the jury’s understanding of the case/ fit to the facts
of the case)
v. Ultimate Issues
1. FRE 704(a): witness may testify to and opinion regarding ultimate issues of the case,
but may eventually be excluded through:
a. 702  does not assist the trier of fact
b. 403  too prejudicial
2. FRE 704(b): expert witnesses may not testify as to whether ∆ did or did not have the
mental state or condition constituting an element of a crime or defense
a. Expert witness is limited to:
i. What he observed
5.
6.
ii. The basis for an opinion
iii. ∆s condition
iv. How the condition would effect a regular person
b. Expert cannot testify using the exact words of the charge or defense
i. “He knew the nature and extent of his property”  OK
ii. “He had the capacity to make a will”  NOT OK
c. Psychologists
i. “∆ was schizophrenic”  OK
ii. “∆ was unable to form the requisite intent”  NOT OK
iii. “∆s schizophrenic condition prevented him from appreciating the
wrongfulness of his conduct”  NOT OK (this is the substantive
federal insanity standard)
vi. CX-ing an Expert
1. Show bias as a result of compensation (expert is being paid)
2. Use learned treatises that contain a differing view
a. Can be used as impeaching evidence even if the expert did not rely upon it in
forming his opinion (expert must concede that it is authoritative)
b. FRE allows the treatise to be used substantively, not just for impeachment
3. Challenge the basis of the opinion
4. Use your own expert to point out holes in the testimony and then CX on those holes
Judicial Notice
Privileges
a. FRE 501: privileges are not codified by the FRE; under 501, federal privilege law is governed by “the
principles of common law as they may be interpreted by the Courts of the United States…”
i. Federal judges will usually decide privileges based on prior federal case law and the court’s own
judgment
ii. Intended to protect societal relationships and values
iii. Goal is to encourage the free flow of communication in various relationships
b. Attorney – Client Privilege; Requirements:
i. Communication for the purpose of representation; to gain legal advice (talk of future crimes is
not protected by the privilege)
1. “Communication”  only the communication is privileged, not the underlying
statements
2. Physical characteristics are not privileged
ii. Statement made with the expectation of privacy
iii. Must be made only to the attorney; if made in the presence of any 3 rd party not related to the legal
team, the privilege is waived
c. Psychotherapist – Patient Privilege
i. When the purpose of communication is to obtain treatment, this privilege covers the relationship
between:
1. Psychotherapists
2. Psychologists
3. Psychiatrists
4. Redmond v. Jaffee  extended the privilege to liscensed social workers
ii. The privilege will be waived if:
1. The patient indicates he will do some future harm/crime and the only way to prevent it
is to disclose
2. There is a court ordered mental evaluation
3. It is an element of a claim or defense
a. If a person puts his mental state at issue in a case, they privilege may not be
invoked (i.e. plea of insanity)
b. Expert testimony cannot state a mental condition that a person had or did not
have
d. Spousal Privileges
i. Adverse Testimony Privilege  blocks all testimony by one spouse against the other, including
accounts of events or acts before marriage
1.
Criminal Cases Only
a. Applies to people married at the time of trial
i. Must be a valid marriage (i.e. not 2 weeks)
ii. Common law marriage is OK if jurisdiction recognizes it
b. Privilege belongs only to the testifying spouse
i. Trammel  privilege belongs to the witness spouse, not ∆ spouse
ii. The witness spouse alone has a privilege to refuse to testify
adversely; s/he may not be compelled to testify or foreclosed from
testifying (even by ∆)
2. Exceptions
a. Privilege does not apply if the case is about a crime/tort committed against the
spouse or minor child
b. Privilege does not apply to exculpatory evidence (evidence that will help ∆
spouse; the other spouse can be compelled to testify if they have exculpatory
evidence)
ii. Confidential Communication (“pillow talk”)  protects testimony after marriage if it describes
communication between the spouses during marriage
1. Applies to Civil and Criminal Cases
a. Applies to testimony concerning private communication between the spouses
during marriage
b. Privilege belongs to both the husband and the wife; both must agree to waive
the privilege, but either spouse may assert it
c. Applies only to verbal communication (not to conduct or acts)
d. Must have an expectation of privacy
2. Exceptions are essentially the same as above
7.
Authentication (foundational evidence)  a basic requirement before exhibits and other forms of
nontestimonial evidence may be received is that they be properly authenticated; how do we know that the
piece of evidence is what you say it is?
a. The Rules and Process
i. FRE 901(a): the authentication requirement is satisfied by offering “evidence sufficient to
support a finding that the matter in question is what is proponent claims”; this standard
favors admissibility, it is a relaxed standard
1. Before exhibits and other forms of nontestimonial evidence may be received, they
must be properly authenticated
2. Example – before a gun offered as the murder weapon may be received, a
preliminary showing must be made that it really is the murder weapon
ii. FRE 901(b): ways of authenticating:
1. Testimony of witness with knowledge
2. Nonexpert opinion on handwriting
3. Comparison by trier or expert witness
4. Distinctive characteristics
5. Voice identification
6. Public records reports
7. Ancient documents or data compilation
8. Process or system
9. Methods provided by statute or rule
iii. FRE 902: self-authenticating documents include:
1. Certified copies of public records
2. Official publications
3. Newspapers and periodicals
4. Certified domestic/foreign records of regularly conducted activities
iv. Conditional Relevancy
Issue  something offered into evidence becomes relevant in the case only if the
proponent proves that the thing is what he claims it to be
2. FRE 104(b): the trial judge will play only a screening function and will allow the
jury to make the ultimate decision about authenticity
a. Judge decides whether to admit
b. Jury decides whether to believe
3. Therefore  proponent must offer enough proof of authenticity to enable a jury
to find an exhibit authentic
a. If he does not – exhibit will be excluded
b. If he does – exhibit will be received, jury will decide authenticity
v. Steps to Authentication
1. Have the exhibit marked for ID by the court reporter
2. Authenticate by testimony of a witness unless it is self-authenticating
3. Offer the exhibit into evidence
4. Permit adverse counsel to examine it
5. Allow adverse counsel an opportunity to object
6. Submit the exhibit to the court for examination
7. Obtain the ruling of the court
8. Request permission to have the exhibit, if admitted presented to the jury
What is Being Authenticated?
i. Tangible Evidence
1. Unique  in order to authenticate, the object just has to be identified and it must
be shown that it was not altered/tampered with (i.e. driver’s license)
2. Fungible  evidence that is interchangeable, it is all the same; (i.e. a bag of
cocaine, Red Radioflyer wagon, a gun, witness’ sweater); steps to authentication:
a. Make it unique (mark or case #)
b. Show that the evidence is in the same or substantially same condition
c. Demonstrate the Chain of Custody; you need to show that the object has
not been tampered with
i. Requires a showing of virtually continuous care, custody, and
control
ii. This rule does not require that you bring in every person who
has come in to contact, just someone who can testify that the
condition has not been materially changed (i.e. lab technician)
iii. Ultimately this will go to weight, not admissibility; if you can’t
account for a material change, it will only effect credibility
ii. Writings
1. Who Can Authenticate?
a. Lay witness who is familiar with the handwriting before trial began
b. The person who wrote it
c. Eyewitness testimony (i.e. the landlord who says “I saw it signed”)
d. Circumstantial evidence (Bagaric; a finding of authentication may be
based entirely on circumstantial evidence, including appearance,
contents, substance, and other distinctive characteristics of the writing)
e. Jury comparison
2. Steps to Authentication (R. Keeton)
a. Has the witness seen the exhibit before?
b. When did they see it?
c. Where were they when they saw it?
d. Why did they notice it?
e. Do they know who sent or made the writings?
f. How do you know?
g. Without saying whose signature it is, are they able to recognize it?
h. How many times have they seen the signature before and in what
context?
i. Whose signature is it?
1.
b.
c.
iii. Tape Recordings;
1. Must show:
a. That the operator of the recorder knew what he was doing
b. That the equipment worked
c. That there were no material alterations, additions or deletions
d. Identify the speaker (because of familiarity with voice either before or
after the conversation)
2. To get what is said on the recording into evidence, you must meet a hearsay
exception; possibilities:
a. Admission by party opponent
b. Effect on listener (not offered for TOMA)
c. Adoptive admission
d. Offered to put ∆s admission into context
Best Evidence Doctrine  when a litigant seeks to prove the contents of a writing, the original
writing must be offered unless the original is unavailable for some reason other than the fault of the
proponent of the evidence
i. Requirements of an Original Apply to:
1. Writing if its terms or contents are sought to be proved
2. Recordings if trying to prove the contents of the recording
3. Photographs if offered to prove the contents of the item:
a. Still photographs
b. X-Rays
c. Video tapes
d. Motion pictures
ii. Chattel or Writing?
1. Duffy  when there is a dispute as to whether an object is a chattel or a writing
and it is not material to the case, the trial judge will have the discretion to treat
the evidence as a chattel or writing
2. Examples of Inscribes Chattels
a. Number of a police officer’s badge
b. Words on a tombstone or traffic sign
c. Odometer reading on a car service sticker
d. Serial number on a manufactured product
iii. FRE 1001(3): Defining an Original
1. An original of a writing or recording is the writing or recording itself or any
counterpart intended to have the same effect by a person executing or issuing it
a. Photographs  original includes the negative or any print made from it
b. Compupter Data  any printout or other output is an original
2. Consider the elements of the charge or claim, intention of the parties, surrounding
circumstances and the party’s purpose in offering the evidence when determining
which writing is an original
iv. FRE 1001(4): Use of Duplicates
1. Admissible to the same extent as an original unless
a. Genuine question as to authenticity of the original
b. In the circumstances it would be unfair to admit the duplicate in lieu of
the original
2. Original is not required when:
a. Lost or destroyed (unless in bad faith)
b. Unobtainable by judicial process or procedure
c. In possession of the opponent
d. Collateral matters (not essential to the lawsuit)