Evidence
Outline
Fourth Edition
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Evidence
Table of Contents
Quimbee Outlines
Quickline
1
I.
19
II.
Presentation of Evidence
Proceedings to Which Evidence
Rules Apply
19
Proceedings to Which Evidence
Rules Do Not Apply
19
Introduction of Evidence
20
Presumptions
33
Mode and Order of Trial Procedure
36
Impeachment, Contradiction, and
Rehabilitation
41
Relevancy and Reasons for Excluding
Relevant Evidence
57
Probative Value
57
Authentication and Identification
65
Character and Related Concepts
68
Expert Testimony
81
III. Privileges and Other Policy Exclusions
94
Privilege Issue-Spotting
94
Source of Applicable Privilege Law
94
Spousal Immunity and Marital
Communications
95
Attorney-Client Privilege and WorkProduct Doctrine
98
Physician/Psychotherapist-Patient
Privileges
114
Other Privileges
116
Insurance Coverage
118
Remedial Measures
119
Compromise, Payment of Medical
Expenses, and Plea Negotiations
120
Past Sexual Conduct of a Victim
125
IV. Writing, Recordings, and Photographs
128
Requirement of Original
128
Exceptions to the Best-Evidence
Rule
131
Summaries
134
Completeness Rule
136
V.
Hearsay and Circumstances of Its
Admissibility
138
Definition of Hearsay
138
Present Sense Impressions and
Excited Utterances
146
Statements of Mental, Emotional, or
Physical Condition
149
Statements for Purposes of Medical
Diagnosis and Treatment
151
Past Recollection Recorded
153
Business Records
154
Public Records and Reports
156
Learned Treatises
161
Reputation Evidence
162
Prior Judgments
163
Hearsay Exceptions Requiring an
Unavailable Declarant
164
Other Exceptions to the Hearsay
Rule
169
Right to Confront Witnesses
171
Testing a Hearsay Declarant’s
Credibility
174
Multiple Hearsay
175
Evidence
I. Presentation of Evidence
Evidence is something that tends to prove or disprove the existence of an alleged fact. The
Federal Rules of Evidence (FRE) apply to the presentation of evidence in all federal cases.
Although most states have enacted mirroring provisions applicable in state cases, some states
retain some common-law evidentiary rules.
Introduction of Evidence
Not all evidence is admissible. Courts must make admissibility determinations based on the
FRE.
1. Laying a Foundation
A party introducing evidence must first lay a foundation for that evidence to be admitted.
The foundation includes preliminary facts needed to establish that the evidence is
authentic and relevant. All evidence requires some foundation; the type of foundation
required depends on the type of evidence and the purpose for which the evidence is
being introduced.
2. Requirement of Personal Knowledge
A lay witness (i.e., a nonexpert witness) must have personal knowledge of a matter to
testify about it. Expert witnesses do not need to have personal knowledge to testify.
3. Refreshing Recollection
If a witness has difficulty remembering a fact or prior statement, the witness may view
evidence to refresh his memory.
4. Objections and Offers of Proof
A party may ask the court to disallow the introduction of evidence by objecting to its
introduction. A party may ask the court to allow the introduction of evidence by making
an offer of proof.
5. Lay Opinions
Lay testimony is any testimony on a subject given by a witness who is not qualified as an
expert on that subject. Lay opinion testimony is proper only if it is:
• rationally based on the witness’s perception;
• helpful in understanding the witness’s testimony; and
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• not based on any scientific, technical, or other specialized knowledge.
6. Competency of Witnesses
A witness’s competency is the witness’s ability to testify truthfully and accurately. Every
witness must be competent to testify and is presumed competent under the FRE unless
proven otherwise.
7. Judicial Notice
Judicial notice is a court’s recognition of a commonly known and certain fact not subject to
reasonable dispute, without the need for a party to prove the fact.
8. Roles of Judge and Jury
The judge manages the trial. A judge makes all legal rulings during a trial, instructs the jury
on all matters of law, and, in criminal cases, determines sentencing. At a bench trial, the
judge acts as factfinder and renders a final verdict. In a jury trial, the jury is the factfinder.
The jury determines what evidence to believe and applies the law to that evidence to
reach a verdict.
9. Limited Admissibility
If evidence is admitted specifically for one purpose but not another, or against one party
but not another, the court, upon timely request, must issue a limiting instruction to the
jury and limit the scope of the evidence accordingly.
Presumptions
A presumption is an inference or assumption that a fact exists because another fact is known
or has been proven to exist. A presumption may be conclusive (i.e., it may not be overcome by
other evidence) or rebuttable (i.e., it may be overcome by contrary evidence).
Mode and Order of Trial Procedure
Courts have discretion to exercise reasonable control over trial procedures, including how
and when evidence is presented. Rulings on trial-court procedure are reviewed under an
abuse-of-discretion standard.
1. Scope of Examination
Examination of witnesses generally consists of:
• direct examination (a party questioning its own witness),
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• cross-examination (a party examining an adverse party’s witness after that witness has been
directly examined), and
• redirect examination (a party’s second chance to question its own witness).
2. Form of Questions
Leading questions (i.e., questions that suggest the answer) are generally not permitted on
direct examination but are permitted during cross-examination. Additionally, courts
generally will not permit questions that are misleading, confusing, inflammatory,
compound, ask for a narrative response, call for speculation, or have been sufficiently
asked and answered.
3. Exclusion of Witnesses
The court must, upon request, or may, upon its own motion, order a witness to leave the
courtroom so that the witness does not hear the testimony of other witnesses. This rule
may not be used to exclude (1) parties, (2) a party’s designated representative if the party
is not a natural person, (3) a person whose presence is essential to the case, or (4) a
person authorized by statute to be present.
Impeachment, Contradiction, and Rehabilitation
Impeachment is the questioning or discrediting of a witness’s veracity or reliability. Any party
may impeach any witness, including a witness the party has called. Once a witness has been
impeached, the opposing party may rehabilitate that witness’s credibility.
1. Intrinsic and Extrinsic Evidence
A party may use all types of impeachment methods to impeach a witness by the witness’s
own testimony (intrinsic or examination evidence) during direct or cross-examination.
Except for impeachment by specific instances of conduct, all types of impeachment
methods may also include the introduction of evidence other than the witness’s
testimony (extrinsic evidence).
2. Inconsistent Statements and Conduct
The credibility of a witness’s testimony may be impeached by introducing prior
inconsistent statements: evidence that the witness previously made statements that were
inconsistent with part or all of the witness’s current testimony.
3. Bias and Interest
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Bias is a witness’s preconceived self-interest or belief that induces the witness, either
consciously or subconsciously, to give testimony that is not completely truthful, in order
to favor or disfavor a party. Bias is always relevant, but courts generally require a party to
lay a foundation before introducing extrinsic evidence of a witness’s bias.
4. Conviction of Crime
For impeachment purposes, a party may cross-examine a witness regarding a prior
conviction if the conviction was for a crime (1) punishable by death or more than one year
of imprisonment or (2) involving a dishonest act or false statement, regardless of the
punishment.
5. Specific Instances of Conduct
A party may inquire about specific instances of conduct, or prior bad acts not resulting in a
conviction, related to a witness’s character for truthfulness, if the party has a plausible,
good-faith basis for doing so.
6. Character for Truthfulness
A witness’s character for truthfulness may be attacked by calling another witness to
testify about the witness’s reputation for untruthfulness or provide opinion testimony
about the witness’s bad character for truthfulness. A party may also ask the witness
herself during cross-examination about specific instances of conduct indicative of her bad
character for truthfulness. However, a party may not use extrinsic evidence to prove the
prior bad acts. Finally, a party may ask a witness about, or offer extrinsic evidence of, the
witness’s prior criminal convictions.
7. Ability to Observe, Remember, or Relate Accurately
A party may impeach a witness with examination or extrinsic evidence based on the
witness’s inability to observe, recall, or relate facts or events accurately.
8. Rehabilitation of Impeached Witnesses
A party may bolster a witness’s credibility only after it has been attacked. In general,
evidence used to rehabilitate an impeached witness must directly answer the
impeachment evidence.
9. Contradiction
Impeaching a witness by specific contradiction involves addressing inconsistencies
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between the witness’s present testimony and facts other than prior inconsistent
statements.
10. Prosecutor’s Duty to Disclose Evidence Impeaching Government Witness
In a criminal case, evidence that might impeach a prosecution witness whose testimony
relates to the defendant’s culpability is material exculpatory evidence that a prosecutor
must disclose to the defense.
II. Relevancy and Reasons for Excluding Relevant Evidence
Evidence is admissible if it is relevant, and no other exclusionary rule applies to bar it. Irrelevant
evidence is not admissible.
Probative Value
The probative value of relevant evidence is the degree to which evidence makes a material
(i.e., consequential) fact more or less likely.
1. Relevancy
Evidence is relevant if it has any tendency to make the existence of any material fact
more or less probable than it would have been without the evidence.
2. Exclusion for Unfair Prejudice, Confusion, or Waste of Time
A court may exclude relevant evidence under Rule 403 of the FRE if the evidence’s
probative value is substantially outweighed by a danger of unfair prejudice, confusing the
issues, misleading the jury, undue delay, waste of time, or needlessly presenting cumulative
evidence.
Authentication and Identification
For evidence to be admissible, the party proffering the evidence must demonstrate that the
evidence is what the party claims it is. This process is called authentication.
Character and Related Concepts
Character evidence (i.e., evidence regarding a person’s mental and moral qualities) is generally
not admissible to show that a person acted in conformity with that character. However, it may
be admissible for other purposes.
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1. Admissibility of Character Evidence in Criminal Cases
Character evidence may be admissible in a criminal case if the character trait is pertinent
to the trial, and the defendant places it in issue.
2. Using Character Evidence to Impeach Witnesses in Civil and Criminal
Cases
Evidence of a witness’s character is admissible in civil and criminal cases to impeach the
witness.
3. Methods of Proving Character
Character may be proven by reputation testimony, opinion testimony, and specific
instances of conduct.
a. Direct Examination–Reputation and Opinion
If evidence of a person’s character is admissible, it may be proved on direct
examination by testimony about the person’s reputation or testimony in the form of an
opinion.
b. Cross-Examination–Specific Instances of Conduct
If evidence of a person’s character is admissible, a party may ask a character witness
about specific instances of the person’s conduct on cross-examination.
c. Character as an Essential Element
If a character trait is an essential element of the claim, charge, or defense, the trait
may be proved in a civil or criminal case by any method a party might use to prove any
element of its case.
4. Habit and Routine Practice
Habit is evidence of a person’s customs or standard response in a given recurring situation .
Habit evidence is generally offered to demonstrate that a person acted in conformity with
that habit on a particular occasion. Evidence of an organization’s routine practice is
admissible to demonstrate that the organization probably acted in accordance with that
practice on a particular occasion.
5. Other Crimes, Acts, Transactions, and Events
Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in
order to show that the person acted in conformity with that character. However, this
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evidence may be admissible for other purposes, e.g., to show motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or lack of accident.
6. Prior Sexual Misconduct of a Defendant
Evidence of sexual assaults committed previously by the defendant is only admissible in
criminal or civil cases directly involving sexual assault, and evidence of acts of child
molestation committed previously by the defendant is only admissible in criminal or civil
cases directly involving child molestation.
Expert Testimony
A witness qualified as an expert by knowledge, skill, experience, training, or education may
provide opinion testimony if (1) the expert’s specialized knowledge will help the trier of fact
understand the evidence or determine a fact in issue, (2) the testimony is based on sufficient
facts or data, (3) the testimony is the product of reliable principles and methods, and (4) the
expert has reliably applied the principles and methods to the facts of the case.
III. Privileges and Other Policy Exclusions
Privileges and policy exclusions prevent certain information from being discoverable or admissible
in a proceeding.
Spousal Immunity and Marital Communications
The two types of marital privileges are spousal immunity and marital communications.
1. Spousal-Immunity Privilege
A person claiming the spousal-immunity privilege may not be required to testify against
his or her spouse in a criminal case.
2. Marital-Communications Privilege
A person claiming the marital-communications privilege may not be required to testify
regarding confidential communications the person had with his or her spouse while they
were married. This privilege applies in both criminal and civil cases.
Attorney-Client Privilege and Work-Product Doctrine
The attorney-client privilege protects communications between clients and their lawyers in all
legal settings to promote full disclosure and effective representation. The work-product
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doctrine protects materials prepared in anticipation of litigation or trial to protect the mental
processes of lawyers and promote a fair adversarial system.
Physician/Psychotherapist-Patient Privileges
The physician-patient and psychotherapist-patient privileges encourage full and free
disclosures between patients and their practitioners.
1. Physician-Patient Privilege
Federal courts do not recognize a general physician-patient privilege. Under state law, the
privilege usually applies to confidential communications between physicians and patients
while the patient is seeking treatment or diagnosis.
2. Psychotherapist-Patient Privilege
All jurisdictions recognize a psychotherapist-patient privilege for confidential
communications between a psychotherapist (i.e., a psychiatrist, psychologist, or clinical
social worker) and the psychotherapist’s client made for the purpose of obtaining
treatment or diagnosis of a psychological, mental, or emotional condition.
Other Privileges
A number of other privileges protect important relationships and enable persons protected by
the privilege to perform important functions effectively.
1. Clergy-Penitent Privilege
The clergy-penitent privilege protects private communications between a penitent
seeking moral or spiritual advice and a member of the clergy.
2. Privileges Arising in Government Service
Privileges arising in the context of government service are:
• the state-secrets privilege, which allows the United States to prevent the disclosure of
information in a judicial proceeding if there is a reasonable danger that disclosure of the
information would expose military matters that should not be disclosed for national-security
reasons;
• the deliberative-process privilege, which protects the disclosure of documents created in
furtherance of the formation of governmental policy;
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• the presidential-communications privilege, which protects the disclosure of documents and
other materials reflecting presidential decision-making and deliberations that the president
believes should remain confidential; and
• the law-enforcement privilege, which protects disclosure of undercover investigations,
investigatory files, and the identity of confidential informants.
3. Journalist’s Privilege to Withhold a Source’s Identity
A number of states recognize a journalist’s privilege not to disclose the identity of a
confidential source. Some federal courts have acknowledged a qualified journalist’s
privilege requiring a balancing of interests.
Insurance Coverage
Generally, a party may offer evidence of health, life, and other forms of insurance. Evidence
that a person involved in a lawsuit did or did not have liability insurance is not admissible to
prove the person’s negligence or wrongfulness. Nor is this evidence admissible to show that a
defendant has the ability to pay a civil judgment against him. However, evidence of liabilityinsurance coverage may be admissible for other reasons.
Remedial Measures
The FRE limit the admissibility of subsequent remedial measures (i.e., steps taken after an
injury or harm has occurred that would have made the injury less likely to occur). Evidence of
remedial measures is not admissible to prove negligence, culpable conduct, a product or
design defect, or a need for a warning or instruction, but it may be admissible for other
purposes.
Compromise, Payment of Medical Expenses, and Plea Negotiations
The FRE limit the admissibility of statements and conduct occurring during efforts to settle a
civil or criminal matter.
1. Compromise Offers and Negotiations
Settlement offers or acceptances and any conduct or statements made during related
negotiations are not admissible to (1) prove or disprove the validity or amount of a
disputed claim or (2) impeach a witness by a prior inconsistent statement or a
contradiction. However, they may be admissible for other purposes.
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2. Offers to Pay Medical and Similar Expenses
Evidence of paying or promising or offering to pay medical, hospital, or similar expenses
resulting from an injury is not admissible to prove liability for the injury. This type of
evidence may be admissible for other purposes.
3. Pleas, Plea Discussions, and Related Statements
Certain pleas and statements made during plea negotiations and proceedings are
inadmissible against the pleading defendant for any purpose. There are limited exceptions
in subsequent trials for perjury or if fairness dictates that statements be admitted
together with other, admissible statements from the same negotiation or proceeding for
the sake of completeness.
Past Sexual Conduct of a Victim
In civil or criminal cases involving alleged sexual misconduct, evidence that the alleged victim
engaged in other sexual behavior or has a sexual predisposition is generally not admissible. A
court may admit past sexual conduct of a victim in criminal or civil cases only under limited
exceptions.
IV. Writing, Recordings, and Photographs
If a writing, recording, or photograph is introduced into evidence, special rules govern its
admission.
Requirement of Original
The best-evidence rule provides that an original writing, recording, or photograph is required
in order to prove its contents, unless the FRE or a federal statute provides otherwise. If an
exception to the best-evidence rule applies, a party may prove the contents of a writing,
recording, or photograph with secondary evidence (i.e., evidence other than the original).
Summaries
A party seeking to prove the content of a writing, recording, or photograph may use a
summary, chart, or calculation to prove the content if the writing, recording, or photograph is
so voluminous that it cannot be conveniently examined in court. Summaries must:
• be based upon admissible evidence,
• accurately reflect the underlying originals, and
• present the underlying information correctly in a way that is neither prejudicial nor misleading.
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Completeness Rule
The rule of completeness provides that if a party introduces all or part of a writing or a
recorded statement, the opposing party may require the introduction, at the same time, of
any other part of that statement or any other writing or recorded statement if the judge
determines that in fairness, the evidence ought to be considered at the same time .
V. Hearsay and Circumstances of Its Admissibility
Hearsay is an out-of-court statement (or nonverbal assertive conduct) offered to prove the truth of
the matter asserted. Hearsay is presumptively inadmissible but may be admitted if (1) it is not
offered for the truth of the matter asserted, (2) it falls under an exemption to or exclusion from the
definition of hearsay, or (3) it falls under an enumerated hearsay exception. The person who made
the out-of-court statement is called the declarant.
Nonhearsay Statements Not Offered for the Truth of the Matter Asserted
The following out-of-court statements are not hearsay, because they are not being introduced
for the truth of the matter asserted:
• statements offered to prove the statement was made;
• statements offered solely to impeach a witness;
• statements offered because the statement itself has some independent legal significance (i.e.,
verbal acts);
• statements offered to show that the statement had some effect on the hearer or reader;
• statements offered to demonstrate the declarant’s state of mind; and
• statements offered to prove that the declarant and the listener/recipient are associated in some
way.
Prior Statements by Witness
Some prior statements of a declarant-witness are exempted from the definition of hearsay.
1. Declarant-Witness’s Prior Inconsistent Statement
A declarant-witness’s prior, out-of-court statement is not hearsay and is admissible to
prove the truth of the matter asserted if (1) the witness testifies and is now crossexaminable regarding the statement, (2) the statement is inconsistent with the declarantwitness’s present testimony, and (3) the statement was made under penalty of perjury in a
prior proceeding or deposition. A prior inconsistent statement that does not meet these
criteria may still be admissible for impeachment purposes.
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2. Declarant-Witness’s Prior Consistent Statement
A declarant-witness’s prior, out-of-court statement is not hearsay and is admissible to
prove the truth of the matter asserted if:
• the declarant-witness testifies and is now cross-examinable regarding the statement;
• the statement is consistent with the declarant-witness’s present testimony;
• the statement was made before the alleged motive to fabricate arose; and
• the statement is offered to rebut an allegation of recent fabrication or improper influence or
motive, or to rehabilitate the declarant-witness’s credibility when attacked on other grounds.
Statements Attributable to Party-Opponent
A statement by an opposing party is not hearsay if the statement is offered against the party
who made the statement. This hearsay exception includes admissions made by others and
adopted by the party-opponent.
Present Sense Impressions and Excited Utterances
Some out-of-court statements fall under exceptions to the hearsay rule and are admissible for
the truth of the matter asserted, because the circumstances under which they were made
were accompanied by some independent guarantee of reliability.
1. Present Sense Impression
A statement describing or explaining an event or condition, made while or immediately
after the declarant perceived it, is admissible.
2. Excited Utterance
A statement relating to an exciting or startling event or condition, made while the
declarant was under the stress of excitement that the event or condition caused, is
admissible.
Statements of Mental, Emotional, or Physical Condition
A declarant’s statement regarding her current (at the time of the statement) motive, intent,
plan, pain, sensation, mental health, or physical health is admissible under the state-of-mind
exception to the hearsay rule.
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Statements for Purposes of Medical Diagnosis and Treatment
A hearsay statement that is made for purposes of receiving a medical diagnosis or treatment is
admissible if it is reasonably pertinent to the treatment and describes:
• medical history,
• past or present symptoms or sensations,
• the symptoms’ inception, or
• the symptoms’ general cause.
The statement does not have to be made to a medical professional to be admissible.
Past Recollection Recorded
A witness may read into evidence a recollection recorded in a hearsay writing if (1) the
witness once knew the recorded information but lacks present recollection of the matter at
trial, (2) the record was made or adopted by the witness while the matter was fresh in the
witness’s mind, and (3) the record accurately reflects the personal knowledge the witness
once had at the time the record was made.
Business Records
A hearsay business record is admissible if the record:
• was made at or near the time of the event;
• was made by, or based on information from, someone with knowledge acting in the regular course
of business;
• was kept in the course of a regularly conducted business activity; and
• was created as a regular practice of that business.
The record’s proponent must show that these elements are met by calling the custodian of
the records, calling a different qualified witness, or offering a certification.
1. The Absence of a Record of a Regularly Conducted Activity
The absence of a matter from an admissible business record may be used as evidence of
the matter’s nonexistence if a record was regularly kept for a matter of that kind, and the
opponent of the business record does not show that the possible source of the
information or any other circumstances indicate a lack of trustworthiness.
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Public Records and Reports
The FRE define exceptions for public and other similar records.
1. Public Records
A hearsay record or statement of a public office is admissible if it details:
• the activities of the office;
• a matter observed by a public official while under a legal duty to report, excluding matters
observed by law-enforcement officers if being offered in a criminal case; or
• in any civil case or a criminal case if offered against the government, findings resulting from a
legally authorized investigation.
2. Public Records of Vital Statistics
A record of a birth, death, or marriage is admissible if it is reported to a public office in
accordance with a legal duty.
3. Absence of a Public Record
Testimony or a certification that a diligent search failed to disclose a public record is
admissible to prove that (1) the record does not exist, or (2) a matter did not occur, if the
public office regularly kept records for matters of that kind.
4. Records, Certificates, and Statements Concerning Personal or Family
History
The FRE define exceptions for various familial and religious records, specifically:
• regularly kept religious records concerning birth, legitimacy, ancestry, marriage, divorce, death,
relationship by blood or marriage, or similar facts of personal or family history;
• statements of fact contained in certificates from ceremonies; and
• statements of fact about personal or family history contained in a family record.
5. Records of Documents and Statements in Documents That Affect an
Interest in Property
A record of a document that creates or affects an interest in property is admissible if (1)
the record is admitted to prove the content of the original recorded document, along with
its signing and its delivery by each person who purports to have signed it; (2) the record
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is kept in a public office; and (3) a recording statute authorizes recording documents of
that kind in that office.
6. Statements in Ancient Documents
Any statement contained in a document that was prepared before January 1, 1998 , and
can be proven authentic is admissible.
7. Market Reports and Similar Commercial Publications
Market reports and similar commercial publications or compilations that are generally
relied on by the public or by people in a particular field are admissible.
Learned Treatises
A statement in a treatise, periodical, or pamphlet is admissible for the truth of matter
asserted if the statement is relied on by an expert witness on direct examination or called to
the expert’s attention on cross-examination, and the publication is established as a reliable
authority.
Reputation Evidence
The FRE define exceptions for reputation evidence.
1. Reputation Concerning Personal or Family History
A person’s reputation among his family, his associates, or people in his community is
admissible to prove the person’s personal or family history.
2. Reputation Concerning Boundaries or General History
A person’s reputation that has reached general consensus in a community and has arisen
before the controversy is admissible concerning (1) boundaries of land or customs about
land in the area or (2) historical events important to that community, state, or nation.
3. Reputation Concerning Character
A person’s character reputation among her associates or in the community is admissible.
Prior Judgments
The FRE provide exceptions for certain previous judgments.
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1. Judgment of a Previous Conviction
Evidence of a previous criminal conviction is admissible if (1) the judgment was entered
after a trial or guilty plea, but not a no-contest (i.e., nolo contendere) plea; (2) the
conviction was for a crime punishable by death or by imprisonment for more than a year
(usually, a felony); (3) the evidence is admitted to prove a fact essential to the previous
conviction; and (4) when offered by the prosecutor in a criminal case for a purpose other
than impeachment, the judgment was against the defendant.
2. Judgments Involving Personal, Family, or General History, or a Boundary
Evidence of a previous judgment may be admitted to prove a matter of personal, family,
or general history, or boundaries, if the matter was essential to the previous judgment
and could be proved by reputation evidence.
Hearsay Exceptions Requiring an Unavailable Declarant
The FRE defines hearsay exceptions that only apply if the declarant is unavailable to testify in
the current proceeding. Unavailable does not necessarily mean physically absent or physically
unable to attend the proceeding.
1. Former Testimony
Former testimony of an unavailable declarant is admissible if (1) the former testimony was
given at a trial, hearing, or lawful deposition, and (2) it is offered against a party who
had—or, in a civil case, whose predecessor in interest had—an opportunity and similar
motive to develop it by examination.
2. Dying Declarations
An unavailable declarant’s statement made under the belief that his own death was
imminent is admissible in a prosecution for homicide or in a civil case if the statement
concerns the cause or circumstances of the declarant’s death.
3. Statements of Personal History
An unavailable declarant’s statement about the declarant’s own personal or family history
is admissible. Statements made by an unavailable declarant about another individual’s
personal or family history are admissible if the declarant was related to the individual or
was so intimately associated with the individual that the declarant’s informa tion is likely
to be accurate.
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4. Statements Offered against Party Who Wrongfully Caused Declarant’s
Unavailability
An unavailable declarant’s statement offered against a party who wrongfully and
intentionally caused or acquiesced in causing the declarant’s unavailability is admissible.
5. Statements against Interest
A statement so contrary to an unavailable declarant’s penal, proprietary, or pecuniary
interest that a reasonable person in the declarant’s position would not have made it if it
were not true is admissible.
Other Exceptions to the Hearsay Rule
To be admissible under the residual exception to the hearsay rule, a statement must:
• have equivalent circumstantial guarantees of trustworthiness as statements permitted in the
exceptions in Rules 803 and 804 of the FRE,
• be offered as evidence of a material fact,
• be a party’s best available evidence on a given point, and
• serve the general purposes of the FRE and the interests of justice by its admission.
Right to Confront Witnesses
The Confrontation Clause of the Sixth Amendment guarantees a criminal defendant the right
to be confronted with the witnesses testifying against him. To protect a criminal defendant’s
rights, the United States Supreme Court has limited the ways in which out-of-court
statements may be used against criminal defendants.
1. Issues with Testimonial Hearsay Statements
A hearsay statement is testimonial if its primary purpose is to prove past events for use in a
criminal investigation or prosecution. Testimonial hearsay statements are not admissible,
even if they otherwise qualify under an existing exception, unless (1) the declarant is
unavailable, and (2) the defendant had a previous opportunity to cross-examine the
declarant about the statement.
2. Issues with Testimonial Statements of Codefendants Implicating
Defendants
The prosecution may not use (1) a testimonial out-of-court statement from a codefendant
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that implicates another defendant, if (2) both defendants are tried together, and (3) the
codefendant does not testify.
Testing a Hearsay Declarant’s Credibility
If a hearsay statement or a statement exempted from the definition of hearsay is admitted
into evidence, the declarant’s credibility may be attacked, and subsequently supported, by
any evidence that would be admissible for those purposes if the declarant had testified at
trial as a witness.
Multiple Hearsay
Multiple hearsay occurs if a hearsay statement itself refers to another hearsay statement; it is
admissible if each part of the combined statement is admissible under a hearsay exemption or
exception.
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Presentation of Evidence
Evidence is “[s]omething (including testimony, documents, and tangible objects) that tends to
prove or disprove the existence of an alleged fact.” [Evidence, Black’s Law Dictionary (11th ed.
2019).] Evidence can be testimonial (i.e., a written or oral assertion), documentary (e.g., a contract
or a will), or real (i.e., something tangible, such as a fingerprint or a photograph). The Federal
Rules of Evidence (FRE), first enacted in 1975, apply to the presentation of evidence in all federal
cases, whether civil or criminal. The FRE mostly codified common-law evidentiary rules, with
some departures. Although most states have enacted mirroring provisions that ar e applicable in
state cases, some states retain at least some common-law rules of evidence.
Proceedings to Which Evidence Rules Apply
Generally, the FRE apply in civil and criminal cases and proceedings brought in the United
States courts, including bankruptcy, admiralty, and maritime cases. The following courts apply
the FRE to proceedings:
• all United States courts of appeals;
• the United States district courts, including those in the District of Columbia, Puerto Rico, and the
territories of Guam, the Virgin Islands, and the Northern Mariana Islands;
• the United States Court of Federal Claims; and
• the United States Tax Court.
All United States judges, magistrate judges, and bankruptcy judges in these courts apply the
FRE. The FRE also apply to contempt proceedings, except those in which the court can act
summarily (summary proceedings are alternative forms of litigation used to quickly resolve
legal actions without pleadings or formal charges). Finally, the FRE’s privilege rules apply to
all stages of a proceeding or case. [Fed. R Evid. 101, 1101(b), 1101(c).]
Proceedings to Which Evidence Rules Do Not Apply
Other than the FRE’s privilege rules, the FRE do not apply to:
• a court’s resolution of a preliminary question of fact governing admissibility;
• grand jury proceedings; and
• other miscellaneous proceedings such as extraditions; the issuance of arrest warrants, criminal
summons, and search warrants; preliminary examinations in criminal cases; sentencings; the
granting or revocation of probation or supervised release; and detention matters.
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Example:
A prosecutor subpoenaed a drug task force’s supervising officer to testify before a federal
grand jury. Because the supervising officer was not personally involved in the investigation,
she had no direct knowledge of the criminal activity. Therefore, the s upervising officer based
her testimony on reports prepared by the investigators, as well as conversations she had with
them during the investigation. The prosecutor also played portions of incriminating audio and
video recordings of the suspects for the grand jury. The grand jury returned the presented
indictments. The indicted defendants moved to dismiss the indictments on the ground that
they were impermissibly based on hearsay evidence. The court denied the dismissal motion
because FRE 1101 explicitly provides that the FRE do not apply in grand-jury proceedings.
Introduction of Evidence
Not all evidence is admissible. Courts must make admissibility determinations based on the
FRE, which should be interpreted to conduct proceedings fairly and eliminate unjustifiable
expense and delay. The FRE’s primary goals are to ascertain the truth and secure a just
determination in a proceeding. [Fed. R. Evid. 102.]
1. Laying a Foundation
A party introducing evidence must first lay a foundation for that evidence. The foundation
includes any preliminary facts needed to establish that a particular piece of evidence is
what the party says it is (i.e., that the evidence is authentic) and relevant to be admitted.
All types of evidence, whether witness testimony, real or physical evidence, and
demonstrative evidence, require some kind of foundation. The type of foundation
required depends on the type of evidence and the purpose for which the evidence is
being introduced. For example, a party could lay the foundation for expert testimony by
asking the expert about his qualifications to testify about the subject matter at the
beginning of the examination. [See, e.g., Simms v. Dixon, 291 A.2d. 184 (D.C. 1972)
(observing that the foundation for photographic evidence can be laid by any person who
can testify that the photographs accurately represent the facts allegedly portrayed in
them).]
2. Laying the Foundation for Lay-Witness Testimony with Personal
Knowledge
To lay the foundation for testimony from a lay witness (i.e., a nonexpert witness), a party
must show that the witness has personal knowledge of a matter to testify about it. A lay
witness has personal knowledge if she actually perceived the matter firsthand, through
physical senses. A lay witness also has personal knowledge if she is testifying about
opinions rationally based on personal observation or experience. A judge may consider
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the witness’s own testimony in determining whether the witness has sufficient personal
knowledge. In contrast to lay witnesses, expert witnesses do not need to have personal
knowledge to testify. [Fed. R. Evid. 104, 602, 701; 3-602 Weinstein’s Federal Evidence §
602.04 (2017); 29 Charles Alan Wright, Arthur R. Miller & Victor James Gold, Federal
Practice and Procedure Evidence § 6254 (3d ed. & Supp. 2022).]
Example:
The owner of a sporting-goods store testified that a certain brand of gun was made in a
different country. The owner had never been to the other country to witness firsthand
the making of that type of gun. The owner may testify about where the gun was made ,
because his knowledge and opinions are based on his personal experience in the industry.
[Adapted from United States v. Doe, 960 F.2d 221 (1st Cir. 1992).]
3. Refreshing Recollection
If a witness has difficulty remembering a fact or prior statement, the witness may refresh
his memory. Recollection may be refreshed by any type of evidence, such as a writing,
audio recording, or a tangible item. [Fed. R. Evid. 612.]
a. Procedure for Refreshing a Witness’s Recollection
To refresh a witness’s recollection during testimony, an attorney must show that (1)
the witness once knew, but is now unable to recall, a fact or event, and (2) an item
(usually, but not always, a writing) will help the witness recall the fact or event.
Generally, neither a writing nor a tangible thing used to refresh recollection is
admitted into evidence. Instead, the evidence is used only by the witness to refresh
the witness’s memory. Thus, a witness who has trouble remembering a fact or
previous statement is permitted to view a writing (or other evidence) to refresh his
memory. [Fed. R. Evid. 612; United States v. Carey, 589 F.3d 187 (5th Cir. 2009).]
Example:
A defendant was on trial for burglary. At trial, a police officer testified that, after the
defendant had been arrested and had agreed to answer questions, the officer had
interrogated him in the presence of a stenographer. The officer testified that she
could not recall what the defendant had said. The prosecutor presented the officer
with a photocopy of the stenographic transcript of the interrogation. After examining
the transcript, the officer testified that she recalled the defendant had admitted to
being near the area of the burglary. The officer’s testimony is admissible because she
used the transcript to refresh her recollection and was not seeking to prove the
transcript’s contents.
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b. Adverse Party’s Options
If a party uses a writing to refresh a witness’s recollection, the adverse party may:
• compel production of the writing,
• inspect the writing,
• cross-examine the witness about the writing, and
• introduce into evidence any portion of the writing relating to the witness’s testimony.
In a federal criminal case, the defense’s options are somewhat different if the
government uses a document to refresh a witness’s recollection, because the Jencks
Act prohibits disclosure of a government witness’s reports or statements until after
the witness has testified on direct examination. Once the government witness has
testified, the defense may view the witness’s reports or statements, including those
used to refresh the witness’s recollection during direct examination. If something
other than a writing is used to refresh recollection, the FRE do not govern its use. [18
U.S.C. § 3500 (2012); Fed. R. Evid. 612 advisory committee’s note; United States v.
Jimenez, 613 F.2d 1373 (5th Cir. 1980).]
Example:
A defendant was on trial for bank robbery. Evidence adduced at trial included the
testimony of a bank teller who had been present during the robbery. The teller
testified for the prosecution after having refreshed her memory by reading an FBI
agent’s investigative report that was created shortly after the robbery. The defendant
sought to examine the report. FRE 612 provides that if a writing is used to refresh a
witness’s memory while the witness is testifying, an adverse party has the right to
inspect the writing. If the writing was used to refresh the witness’s memory before the
witness testified, then the adverse party may inspect the writing if the court
determines that justice requires the inspection.
c. Relation to Hearsay Rule
Refreshing recollection is not the same as the past-recollection-recorded exception to
the hearsay rule. The difference between these evidentiary concepts is the witness’s
ability to testify from present knowledge. If a witness’s recollection is refreshed, the
witness recovers the ability to testify about the information from personal kn owledge.
On the other hand, under the hearsay exception for a past recollection recorded, the
witness’s memory is not refreshed. Rather, the writing is introduced into evide nce as
substantive proof of the information. [See Past Recollection Recorded, infra.]
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4. Objections and Offers of Proof
A party may ask the court to disallow the introduction of evidence by objecting to its
introduction. In contrast, a party may ask the court to allow the introduction of evidence
by making an offer of proof.
a. Objections
Objections to the admission of evidence should be made before the witness answers
an improper question or the evidence is admitted. The court will either sustain the
objection and disallow the evidence or overrule the objection and allow the evidence.
If evidence or testimony gets into the record before a party states its objection, the
party may, via a motion to strike, request that the judge remove the testimony or
evidence. Upon granting a motion to strike, a court usually instructs the jury that the
evidence has been removed from the record and should not be considered.
Preserving Objections for Appeal
To preserve an overruled objection for an appeal, the objection must be (1) timely
and (2) accompanied by a stated ground (e.g., inadmissible as hearsay or as a
leading question). This is called a specific objection, as opposed to a general
objection, which does not state the grounds on which the objection is based. A
general objection may be appropriate if the grounds are apparent from the
context. [Fed. R. Evid. 103.]
Motion In Limine
In limine literally means at the threshold. A party may make a motion in limine to
admit or exclude certain evidence prior to trial. This technique is often used if a
party believes potentially inadmissible evidence would be prejudicial if discussed in
front of the jury—even if it is ultimately ruled inadmissible.
Example:
A criminal defendant with prior convictions for petty larceny was about to be tried
for burglary. The defendant intended to testify. The prosecution wanted to
introduce evidence of the defendant’s prior convictions at trial to impeach him.
The defendant’s attorney feared that evidence of the defendant’s prior convictions
would be highly prejudicial. Further, the defendant’s attorney was afraid that if the
prosecution mentioned the prior convictions in front of the jury, any objection,
motion to strike, or limiting instruction from the judge would come too late, as the
damage would have already been done. Accordingly, before the trial began,
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defense counsel filed a motion in limine, seeking to suppress evidence of the prior
convictions.
b. Offers of Proof
Once an objection to evidence is made, an offering party must convince the court that
its evidence is nevertheless admissible. To do so, an offering party typically makes an
offer of proof. An offer of proof is a party’s explanation to the court justifying why
objected-to evidence should be admitted. To make an offer of proof, the party may,
for example, explain why evidence is relevant or provide the judge with a roadmap of
where a line of questioning is going. This is often done outside the jur y’s hearing. The
forms of an offer of proof vary and may include:
• a statement by counsel,
• witness testimony,
• a document, or
• an affidavit.
Following the offer of proof, a court will either sustain the objection and disallow the
evidence or overrule the objection and allow the evidence. To preserve for appeal
evidence disallowed after an objection was sustained, the proffering party must
present an offer of proof, unless the substance of the evidence was apparent from the
context. [Fed. R. Evid. 103.]
c. Burdens of Proof on Preliminary Questions of Admissibility
Rule 104 of the FRE does not define or allocate any particular burden of proof for
preliminary questions of admissibility. Generally, once an opponent objects, the
offering party has the burden of persuading the trial court that the evidence is
admissible. [See Fed. R. Evid. 104(a).]
Preponderance-of-the-Evidence Standard
Most commonly, the offering party in both civil and criminal cases must show that
the evidence is admissible using a preponderance-of-the-evidence standard. A
preponderance of the evidence means more likely true than not true; in this
context, that the evidence is more likely admissible than inadmissible . In numerical
terms, a preponderance of the evidence is a probability greater than 50 percent. A
preponderance of the evidence is a lighter evidentiary burden than clear and
convincing evidence, which is, in turn, a lighter evidentiary burden than beyond a
reasonable doubt (used on ultimate issues in criminal cases). [See Fed. R. Evid.
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104(a); Bourjaily v. United States, 483 U.S. 171 (1987) (defining preponderance-ofthe-evidence standard).]
Example:
In a civil action for breach of an oral contract, the defendant denied having
entered into a contract with the plaintiff, although the defendant admitted that she
had discussed doing so. The plaintiff proffered evidence to prove that the parties
had formed a contract. The court’s admission of the proffered evidence will
depend on whether the evidence has any tendency to make the fact of contract
formation more or less probable then without the evidence.
Clear-and-Convincing-Evidence Standard
For some evidentiary questions, particularly in criminal prosecutions, a greater
evidentiary burden applies. For example, the prosecution has the burden of
proving, by clear and convincing evidence, that an in-court identification of a
criminal defendant was not tainted by an unconstitutional out -of-court
identification. Clear and convincing evidence is an intermediate standard of proof,
greater than a preponderance of the evidence, but less than the beyond -areasonable-doubt standard used for ultimate questions of criminal guilt. [See United
States v. Wade, 388 U.S. 218 (1967).]
d. Error
A court can commit three types of errors in deciding to admit or exclude evidence:
harmless, prejudicial, or plain. The type of error committed will determine whether the
negatively affected party will be entitled to relief on appeal.
Harmless Error
Harmless error is error that does not adversely affect a party’s substantial right and
thus will not warrant reversal of a judgment. An error is harmless if, more likely
than not, the jury would have reached the same verdict absent the error. [ Obrey v.
Johnson, 400 F.3d 691 (9th Cir. 2005).]
Example:
A defendant was convicted of murder. Evidence at trial included a confession,
eyewitness testimony, and security-camera footage of the defendant committing
the murder. The defendant appealed and claimed that the confession was illegally
coerced and should not have been admitted at trial. The court of appeals agreed
with the defendant that the confession should not have been admitted but held
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that it was harmless error because, even without the confession in the record,
there was sufficient admissible evidence to convict the defendant. Thus, the court
of appeals affirmed the conviction.
Prejudicial Error (Reversible Error)
Prejudicial error is error that adversely affects a party’s substantial right and
warrants reversal. Error adversely affects a substantial right if it affects the
outcome of the case—i.e., if the jury most likely would not have reached the result
it did, but for the error.
Example:
A defendant was charged with murder. Evidence at trial included a confession and
some circumstantial evidence. No murder weapon was found. The defendant was
convicted. The defendant appealed and claimed that the confession was illegally
coerced and should not have been admitted at trial. The court of appeals agreed
with the defendant that the confession should not have been admitted. The court
reversed the conviction because the error was prejudicial. In other words, without
the confession in the record, there may not have been sufficient evidence to
convict the defendant.
Plain Error
Plain error is error that is not raised at trial but is so obvious and substantial that it
excuses any failure to raise it and warrants reversal.
Example:
A defendant was found guilty at the conclusion of a peonage (i.e., involuntary
servitude) trial in which the evidence did not support a finding of guilt. The
defendant’s counsel had failed to request that the jury be instructed to find the
defendant not guilty, even though such a motion would have been the correct
method to present the question of whether there was evidence to sustain the
verdict. Regardless of the defendant’s counsel’s failure to make the request, the
matter was so vital to the defendant that reversal of the conviction was still
warranted. [Adapted from Clyatt v. United States, 197 U.S. 207 (1905).]
Compare:
A trial court improperly admitted into evidence the defendant’s coconspirator’s
guilty plea. Although the admission was a serious error, the prosecutor did not
emphasize the guilty plea and did not otherwise engage in prosecutorial
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misconduct. Moreover, there was a significant amount of other credible evidence
of the defendant’s guilt presented at trial, including testimony from the victim and
an eyewitness. Because of this very strong evidence of the defendant’s guilt and
the lack of deliberate prosecutorial misconduct, the admission of the guilty plea did
not rise to the level of plain error in the circumstances. Accordingly, the conviction
was affirmed. [Gov’t of the Virgin Islands v. Mujahid, 990 F.2d 111 (3d Cir. 1993).]
Waiver
A party who waives an objection for strategic reasons is not entitled to plain-error
review.
e. Burden on Appeal
To prevail in an appeal on a properly preserved (by timely objection or offer of proof)
argument that the court erroneously excluded or admitted evidence, a party must
show that (1) the trial court abused its discretion, and (2) the error affected a
substantial right of the party. To meet this second requirement, the party must show
that the error probably had a significant influence on the jury’s verdict. Prejudicial
errors probably have a significant influence on the jury’s verdict, but harmless errors
do not. Plain errors have a significant influence on the jury’s verdict and warrant
reversal even if the argument was not properly preserved for appeal. [ Proctor v. Fluor
Enters., Inc., 494 F.3d 1337 (11th Cir. 2007); Tesser v. Bd. of Educ., 370 F.3d 314, 319
(2d Cir. 2004).]
5. Lay Opinions
Lay testimony is testimony on a subject given by a witness who is not qualified as an
expert on that subject. Lay opinion testimony is proper only if it is:
• rationally based on the witness’s perception;
• helpful in understanding the witness’s testimony; and
• not based on any scientific, technical, or other specialized knowledge (and therefore not within
the scope of expert testimony).
Lay witnesses may draw reasonable inferences from their own experience to reach an
opinion, provided they use a process of reasoning familiar in everyday life. A lay witness’s
opinion helps the jury if it is based on the witness’s experience and gives the jury more
information than a mere recitation of facts would provide. [Fed. R. Evid. 701 advisory
committee’s note; Fed. R. Evid. 702; State v. Brown, 836 S.W.2d 530 (Tenn. 1992); see
Expert Testimony, infra.]
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Examples:
(1) A convenience-store customer presented a personal check to the cashier to pay for
the customer’s purchases. When the cashier examined the check, he recognized the name
and address that was printed on the check as belonging to another customer. Because
the other customer was a regular patron, the cashier was familiar with the customer’s
handwriting. This familiarity caused the cashier to recognize that the check was
completed in handwriting that did not resemble that customer’s. Thereafter, the customer
was arrested and charged with uttering a false instrument. The check was never
recovered. At the customer’s criminal trial, the prosecution called the cashier to testify
that the handwriting on the check was not the customer’s. Because the cashier’s
testimony is rationally based on her perception and is helpful to the jury, it is admissible.
(2) A federal agent who had extensively surveilled a criminal defendant testified that, in
his opinion, a person appearing on a blurry video was in fact the defendant. The agent’s
extensive surveillance of the defendant during the time the video was taken, and the
poor quality of the video, made the agent’s testimony helpful to the jury because the
agent was more likely than the jury to correctly identify the person in the video. Thus, the
agent’s testimony was properly admitted. [ United States v. Sanchez, 789 F.3d 827 (8th Cir.
2015).]
Compare:
A court admitted lay-opinion testimony from a witness on whether the witness believed
the defendant’s claim that the authorities had confused the defendant with someone else.
The jury was in just as good, and arguably even better, position than the witness to judge
the veracity of the defendant’s claim of mistaken identity. Therefore, the witness’s
opinion testimony was not helpful to the jury and should have been disallowed. [ United
States v. Sanabria, 645 F.3d 505 (1st Cir. 2011).]
6. Competency of Witnesses
A witness’s competency is the witness’s ability to testify truthfully and accurately. A
person is competent to testify if the person:
• has personal knowledge of the facts to which he will testify,
• is able to relate those facts to the jury,
• gives an oath or affirmation to testify truthfully, and
• is neither a judge nor a juror in the case.
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Every witness must be competent to testify and is presumed competent under the FRE
until proven otherwise. [Fed. R. Evid. 601-06 advisory committee’s notes; 27 Charles
Alan Wright, Arthur R. Miller & Victor James Gold, Federal Practice and Procedure Evidence
§ 6005 (3d ed. & Supp. 2022).]
a. Reasons for Incompetency
The most common reasons for a determination that a witness is incompetent to testify
are age, lack of mental capacity, and intoxication at the time of the testimony.
However, courts have held that provided the witness appreciates his duty to tell the
truth and can at least minimally observe, recall, and communicate events, the witness’s
testimony should be admitted. Once this initial threshold is met, any issues with
competency (e.g., the witness’s age or mental capacity) go to the weight of the
testimony but do not affect its admissibility. [United States v. Phibbs, 999 F.2d 1053
(6th Cir. 1993).]
b. Judge’s Competency as a Witness
The presiding judge may not testify at trial. [Fed. R. Evid. 605.]
Example:
A defendant was on trial for murder. While walking down the hallway during a recess
in the defendant’s trial, the judge overheard the defendant say to his lawyer, “Even
though I did it, the jury won’t convict me.” After the judge reported the incident to
counsel, the prosecutor called the judge to testify about what she had heard. Because
a judge may never testify in a trial over which she is presiding, the judge may not
testify.
c. Juror’s Competency as a Witness
A juror may not testify at trial in the presence of the other jurors. In addition, jurors
may not testify about the deliberation process, other than about improper outside
influences or information. [Fed. R. Evid. 606.]
d. Applicability of State or Federal Law
In federal criminal cases, the federal rule of competency always applies. In other
words, witnesses in federal criminal cases are presumed competent to testify until
proven otherwise. In federal civil cases, state rules of competency apply if state law
supplies any element of a claim or defense. [Fed. R. Evid. 601 advisory committee’s
note; Legg v. Chopra, 286 F.3d 286 (6th Cir. 2002).]
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7. Judicial Notice
Judicial notice is a court’s recognition of a commonly known and certain fact not subject to
reasonable dispute, without the need for a party to prove the fact. For example, a
mathematical formula or the fact that it was raining outside on a particular day may be
subject to judicial notice.
Example:
A man suffered serious complications from surgery due to his severe vascular disease,
which his doctors said was caused by smoking. The man filed a products -liability lawsuit
against the tobacco company that produced the cigarettes. The court could take ju dicial
notice of the health risks of smoking because these risks are scientifically well -established
and not subject to reasonable dispute. [See Roysdon v. R.J. Reynolds Tobacco Co., 849 F.2d
230 (6th Cir. 1988).]
Compare:
A teen was sent by his mother to a residential psychiatric facility for treatment. Upon
reaching the age of majority, the teen filed suit against the facility, alleging civil -rights
violations pursuant to 42 U.S.C. § 1983. The teen asked the court to take judicial notice
of the fact that the private facility was a state actor for purposes of § 1983, because, in a
previous lawsuit, the facility’s predecessor had been adjudicated a state actor. Ho wever,
the court could not take judicial notice of a factual finding that another court had made,
because the fact underlying the finding was not necessarily indisputable. [ See Taylor v.
Charter Med. Corp., 162 F.3d 827 (5th Cir. 1998).]
a. Adjudicative versus Legislative Facts
A court may take judicial notice of an adjudicative fact ( e.g., a fact about the case or
the parties) but not a legislative fact (e.g., a fact that a court uses to construe the
meaning of the law). [Fed. R. Evid. 201 advisory committee’s note.]
b. Procedure for Taking Judicial Notice of Facts
A court may take judicial notice on its own or by request of one of the parties at any
time in the proceeding, including before trial, during trial, or during an appeal. The
court must take judicial notice if one of the parties requests it and provides the court
with the necessary information, including the fact to be noticed and the source of the
information. However, the parties are entitled to be heard on the issue, either before
or after the court takes judicial notice, provided the request to be heard is timely.
[Fed. R. Evid. 201 advisory committee’s note, Clark v. S. Cent. Bell Tel. Co., 419 F.
Supp. 697 (W.D. La. 1976).]
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c. Judicial Notice and the Jury
Judicial notice is binding on the jury in civil cases, meaning the jury must recognize the
judicially noticed fact as conclusive. In criminal cases, judicial notice satisfies the
prosecutor’s burden of proof as to that particular fact but is not binding—i.e., the jury
may or may not recognize a judicially noticed fact as conclusive. [Fed. R. Evid. 201.]
Example:
A defendant was charged with bank robbery. The prosecutor supplied the court with
information from accurate sources establishing that the bank is a federally insured
institution, and that fact is not subject to reasonable dispute. The court must take
judicial notice of this fact and instruct the jury that it may, but is not required to,
accept the judicially noticed fact as conclusive.
Compare:
A defendant was charged in federal court with selling heroin, a controlled substance,
in interstate commerce. At trial, the prosecutor introduced evidence that the
defendant had obtained the substance from a supplier in Kansas City, Missouri, and
delivered it to Chicago, Illinois. The defendant denied that the substance was heroin
but introduced no evidence contradicting the evidence of the substance’s
transportation. The court should instruct the jury that if it finds that the defendant
obtained the substance in Kansas City and delivered it to Chicago, the jury may, but is
not required to, find that the transaction was interstate in nature.
8. Roles of Judge and Jury
The judge and jury play distinct and sometimes overlapping roles in the trial process,
working together to apply the law to the facts of the case.
a. Judge
The judge is the manager of a trial. A judge makes all legal rulings during a trial,
including the admissibility of evidence, whether a privilege exists, and on parties’
motions and objections. The judge also instructs the jury on all matters of law and, in
criminal cases, determines sentencing. In instructing the jury on the law, the judge
may give limiting instructions if a particular piece of evidence is admissible for one
purpose (e.g., impeachment), but not for another purpose. A judge may raise an iss ue
sua sponte (i.e., on the judge’s own initiative) without prompting from a party. At a
bench trial, the judge additionally acts as the factfinder and renders a final verdict.
[Fed. R. Evid. 104(a); Fed. R. Evid. 105 advisory committee’s note; see Limited
Admissibility, infra.]
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b. Jury
In a jury trial, the jury is the factfinder. Although the judge determines the
admissibility of evidence and testimony, the jury determines the weight accorded to
the evidence and whether to believe testimony. In other words, the jury determines
what testimony and other evidence to believe and applies the law to that evidence, as
instructed by the judge, to reach a verdict. [Fed. R. Evid. 104(b), 901, 1008.]
General Verdict
A general verdict is a jury verdict in which the jury decides who wins the case.
Special Verdict
A special verdict is a jury verdict that makes specified findings of fact based on
questions from the judge but does not apply the law or make a final judgment.
Special verdicts are often used in complex cases. [Fed. R. Civ. P. 49(a).]
Example:
In a civil suit for negligence, gross negligence, and fraud, the judge submitted a
special verdict form containing interrogatories on each issue to the jury, rather
than simply requesting a general verdict in favor of one party or another. [ See
Stewart & Stevenson Servs., Inc. v. Pickard, 749 F.2d 635 (11th Cir. 1984).]
9. Limited Admissibility
If evidence is admitted specifically for one purpose but not another, or against one party
but not another, the court, upon timely request, must issue a limiting instruction to the
jury and limit the scope of the evidence accordingly. For example, a defendant’s prior bad
act is not admissible to show that the defendant has the propensity to act in accordance
with the prior act. But the evidence may be admissible for another p urpose, such as
impeaching the defendant’s credibility as a witness. [Fed. R. Evid. 105; 21A Charles Alan
Wright, Arthur R. Miller & Victor James Gold, Federal Practice and Procedure Evidence §
5066 (3d ed. & Supp. 2022); see Specific Instances of Conduct, infra.]
Example:
A consumer sued a microwave-oven manufacturer for burn injuries allegedly caused by
the manufacturer’s negligent failure to warn purchasers of the danger of heating foods in
particular types of containers. The consumer sought to introduce three letters received
by the manufacturer before it shipped the oven to the consumer, in which customers
complained of receiving serious burns under circumstances like those in the consumer’s
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case. The manufacturer objected to the letters on hearsay grounds and, in the alternative,
sought a limiting instruction directing the jury to consider the letters only regarding the
issue of notice and not for the truth of the assertions contained in them. Because the
manufacturer requested that the judge instruct the jury not to use the letters for an
impermissible purpose, the court must give the limiting instruction.
a. When Limiting Instruction Is Not Required
A court is not required to provide a limiting instruction to the jury on evidence
admitted for a limited purpose if (1) a party fails to request one in a timely manner, (2)
a party decides as a matter of strategy not to request one, or (3) a limiting instruction
is insufficient to cure the danger of unfair prejudice. [ United States v. Sciolino, 505
F.2d 586 (2d Cir. 1974).]
b. Relation to Rule 403
The rule allowing the admission of evidence for one purpose but not another must be
implemented in conjunction with Rule 403 of the FRE, which states that evidence may
be excluded if its probative value is substantially outweighed by the danger of unfairly
prejudicing or misleading the jury, among other things. Even evidence that is admissible
for a limited purpose must pass scrutiny under Rule 403. [See Fed. R. Evid. 105, 403.]
Example:
A defendant was on trial jointly with a codefendant for armed robbery. A witness
testified that the codefendant confessed that he and the defendant had committed
the crime. The trial court admitted the witness’s testimony but limited its scope to
evidence of the codefendant’s guilt. The court instructed the jury not to consider the
confession as evidence of the defendant’s guilt. Both the defendant and the
codefendant were convicted. Even though the court limited the confession’s
admissibility and instructed the jury to disregard the testimony with respect to the
defendant’s guilt or innocence, the risk of prejudicial effect against the defendant
outweighed the testimony’s probative value. Thus, based on FRE 403, the defendant’s
conviction was reversed. [Adapted from Bruton v United States, 391 U.S. 123 (1968).]
Presumptions
A presumption is an inference or assumption that a fact exists because another fact is known
or has been proven to exist. In other words, when a fact or group of facts exists, a
presumption is a shortcut that allows the factfinder to conclude that another related fact,
which logically follows, exists as well. A presumption may be conclusive or rebuttable.
Examples of legal presumptions include that a witness is presumed competent to testify, a
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person is presumed sane, and a person missing for seven years is presumed dead.
[Presumption, Black’s Law Dictionary (11th ed. 2019).]
1. Conclusive Presumption
A conclusive presumption, also known as an absolute or irrebuttable presumption, is a
presumption that may not be overcome by other evidence. In other words, a conclusive
presumption carries the same weight as a proven fact.
2. Rebuttable Presumption
A rebuttable presumption is one that may be overcome by evidence to the contrary.
Rebuttable presumptions are more common than conclusive presumptions.
a. Procedure for Rebutting a Presumption
In civil cases, the burden is on the party against whom a presumption applies to rebut
the presumption. The rebutting party may overcome the presumption by presenting
evidence establishing the nonexistence of the presumed fact. To meet this burden, the
rebutting party must present evidence that would be sufficient to withstand summary
judgment or judgment as a matter of law. However, the ultimate burden of persuasion
does not shift and lies with the party on whom it was originally placed. [Fed. R. Evid.
301; see McCann v. Newman Irrevocable Tr., 458 F.3d 281 (3d Cir. 2006).]
Examples:
(1) A woman sued her insurance company after it failed to pay a claim on the ground
that the woman’s policy had lapsed due to nonpayment of her premium. At trial, the
woman testified that she had, in a timely manner, placed a stamped, properly
addressed envelope containing the premium payment in her office’s outgoing mail.
The woman’s secretary testified that every business day, he takes all outgoing mail
from the bin to the post office. The insurance company called its mail clerk to testify
that he opens all incoming mail and that he did not receive the woman’s premium
payment. The woman has presented sufficient evidence to trigger the presumption
that the insurance company received her premium payment. The insurance company
has presented sufficient evidence to rebut that presumption. Consequently, the
presumption no longer applies, and it is the factfinder’s responsibility to determine
whether the insurance company received the payment.
(2) After hitting a sunken barge and damaging its vessel, a towboat operator sued the
government for failing to maintain a navigable channel. The court granted summary
judgment for the government and denied the towboat operator’s motion to amend the
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judgment. After the time to appeal had passed, the towboat operator claimed that it
was never notified that its motion had been denied. However, the district court had
sent timely electronic notice. Information properly sent via email is presumed to be
received by the party to whom the email was sent. The other party may rebut that
presumption, but only by presenting evidence that adequately demonstrates the party
did not receive the email. [Adapted from Am. Boat Co., Inc. v. Unknown Sunken Barge,
567 F.3d 348 (8th Cir. 2009).]
b. Bursting-Bubble Theory of Rebuttable Presumptions
The bursting-bubble theory is another way to visualize how a rebuttable presumption
operates. A party benefitting from a rebuttable presumption must produce evidence to
support it. The opposing party can then produce rebuttal evidence. If the opposing
party provides sufficient counter-proof to rebut the presumption, then the
presumption disappears (i.e., the bubble bursts), and the party formerly benefitting
from the presumption bears the burden of persuasion. [Fed. R. Evid. 301 advisory
committee’s note; Cappuccio v. Prime Capital Funding LLC, 649 F.3d 180 (3d Cir.
2011).]
Example:
In a suit based on a will, the distribution of the estate depended on whether the wife
survived her husband when they both died in a ski-lift collapse. An applicable statute
provided that, for purposes of distributing an estate after a common disaster, the re is
a rebuttable presumption that neither spouse survived the other. A witness sought to
testify that, as he approached the ski-lift wreckage, he heard what he thought was a
woman’s voice saying, “Help me,” although by the time the couple was removed fro m
the wreckage, both people were deceased. The witness’s testimony, although not
conclusive, is sufficient to rebut the presumption that neither spouse survived the
other and to support a jury finding that the wife outlived the husband. Therefore, the
presumption is no longer controlling.
3. Applicability of State Law
In federal civil cases in which state law applies, the federal court should also apply state
law with regard to the effect of presumptions. [Fed. R. Evid. 302 advisory committee’s
note; Kokins v. Teleflex, 621 F.3d 1290 (10th Cir. 2010).]
4. Criminal Cases
Congress chose not to adopt a specific rule regarding evidentiary presumptions in
criminal cases, considering the constitutional and due-process rights of the accused.
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Thus, if a presumption in a criminal case is referenced, it is likely more of a permissible
inference. Of course, in all criminal cases, there is a presumption that defendants are
innocent until proven guilty. [See Coffin v. United States, 156 U.S. 432 (1895).]
Example:
A defendant was on trial for the murder of a woman who disappeared 10 years earlier.
Since the woman’s disappearance, no one had heard from her, and her body had not been
recovered. The prosecutor presented strong circumstantial evidence that the defendant
murdered the woman. To help establish the fact of the woman’s death, the prosecutor
requested that the judge instruct the jury that, “a person missing and not heard from in
the last seven years shall be presumed to be deceased.” The Supreme Court had held that
it is a violation of due process for a judge to give a mandatory jury instruction in a
criminal case on an element of the crime charged. Here, the jury could have interpreted
the phrase “shall be presumed” to shift the burden of proof to the defendan t or to
require that the jury find an element of the crime charged, neither of which was
permissible. Accordingly, the court did not give the requested instruction.
Mode and Order of Trial Procedure
Courts have the discretion to exercise reasonable control over trial procedures, including how
(the mode) and when (the order in which) evidence is presented. [Fed. R. Evid. 611.]
1. Control by Court
Although a court may not exclude otherwise-admissible evidence or admit inadmissible
evidence, a court has broad power to craft effective procedures that will uncover the
truth, avoid wasting time, and protect witnesses from harassment and undue
embarrassment. [Fed. R. Evid. 611.]
a. Types of Control Over Mode and Order of Evidence
A court may control (1) when, where, and how a witness may testify; (2) how long and
in what form a party may question a witness; and (3) whether a party may recall a
witness, reopen a case, or offer rebuttal evidence. For example, a court must make
rulings on matters such as objections, requests to recall witnesses, requests for
recesses, and requests to reopen cases once a party rests, among other things. [Fed.
R. Evid. 611; 28 Charles Alan Wright, Arthur R. Miller & Victor James Gold, Federal
Practice and Procedure Evidence § 6162-64 (3d ed. & Supp. 2022).]
b. Abuse-of-Discretion Standard
Rulings on trial-court procedure are reviewed under an abuse-of-discretion standard.
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This deferential standard recognizes that the trial court is in the best position to
decide these matters because it is viewing the evidence firsthand and has a grasp of
the case. Under this deferential standard of review, the trial court’s decision will n ot
be overturned unless the facts and circumstances of the case indicate that the court’s
ruling was an abuse of its discretion. The precise analysis will vary depending on the
nature of the ruling involved. For example, in evaluating a challenge to a tria l court’s
limits on cross-examination, a reviewing court might analyze whether the jury had
sufficient information to assess the bias and credibility of witnesses. In general,
reviewing courts tend to focus on whether the challenged procedure unduly
prejudiced or otherwise deprived the complaining party of its rights at trial. [ Loinaz v.
EG & G, Inc., 910 F.2d 1 (1st Cir. 1990); United States v. Singh, 628 F.2d 758 (2d Cir.
1980); Skogen v. Dow Chem. Co., 375 F.2d 692 (8th Cir. 1967).]
2. Scope of Examination
Examination of witnesses generally consists of direct examination, cross -examination, and
redirect examination.
a. Direct Examination
Direct examination refers to a party’s questioning of its own witness.
b. Cross-Examination
Cross-examination refers to a party’s examination of an adverse party’s witness after
that witness has been directly examined. Cross-examination is the primary method for
testing a witness’s credibility. Cross-examination generally must stay within the scope
of direct examination, unless a matter involves the witness’s credibility, or the judge
specifically allows broader examination. For example, a court may allow cross examination outside the scope of direct examination if the party conducting the cross examination plans to call the witness during its own case, and the witness would be
inconvenienced by having to return to testify again. [Fed. R. Evid. 611; Fed. R. Evid.
806 advisory committee’s note; 28 Charles Alan Wright, Arthur R. Miller & Victor
James Gold, Federal Practice and Procedure Evidence § 6168 (3d ed. & Supp. 2022).]
Example:
A plaintiff sued a defendant for injuries allegedly suffered when he slipped and fell on
the defendant’s property. At trial, the plaintiff called the defendant’s property
manager solely to establish that the defendant owned the property where the plaintiff
fell. On cross-examination of the manager, the defendant’s attorney sought to
establish that the defendant had taken reasonable precautions to make the property
safe for business invitees. However, because cross-examination generally should be
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limited to the subject matter of the witness’s direct examination and matters affecting
the credibility of the witness, the defendant’s cross-examination of the manager on
the safety precautions was not permissible.
Compare:
At a defendant’s trial for mail fraud, the defendant called his wife to testify that she
committed the fraud herself without the defendant’s knowledge. On crossexamination, the prosecutor asked the wife, “Isn’t it true that you have fled your home
several times in fear of your husband?” Because the question raised an inference that
the wife is in fear of her husband and was, therefore, falsely taking the bl ame for her
husband’s crime, the question was permissible.
c. Redirect Examination
Redirect examination occurs after cross-examination and provides a party a second
chance to question its own witness. The FRE do not expressly address redirect
examination. Generally, the scope of redirect examination is limited to the matters
raised on cross-examination. [United States v. Riggi, 951 F.2d 1368, 1375 (3d Cir.
1991).]
d. The Confrontation Clause
The Confrontation Clause of the Sixth Amendment to the US Constitution guarantees
a criminal defendant the right to be confronted by the witnesses against him.
Although a court has broad discretion to control the manner and mode by which
witnesses are examined, if new matters are raised on cross-examination or redirect
examination during a criminal case, the Sixth Amendment requires the court to permit
redirect examination (to address new issues raised on cross-examination) and recross
examination (to address any new issues raised on redirect examination). [U .S. Const.
amend. VI; United States v. Riggi, 951 F.2d 1368, 1375 (3d Cir. 1991).]
e. Hostile or Adverse Witness
Typically, a hostile witness is one who (1) has some bias against the party conducting
the examination, (2) refuses to testify, or (3) is aligned with an adverse party. However,
not all witnesses who provide unfavorable testimony are deemed hostile. The term
hostile has a meaning unique to evidence law distinct from its common, nonlegal
definition. For a witness to be deemed hostile, the judge must find that a witness has
a bias against the questioning party or is uncooperative. The FRE permit a party to
knowingly call a hostile witness. [Fed. R. Evid. 607; Hostile Witness, Black’s Law
Dictionary (11th ed. 2019).]
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f. The Court and Witnesses
The court may call and examine its own witness or examine a witness called by either
of the parties. If the court calls its own witness, each party is allowed to cross examine that witness. A party may object to the witness or to the court’s questions of
the witness. Unlike with other objections, the party may wait until the jury is not
present to make the objection. [Fed. R. Evid. 614; United States v. Cochran, 955 F.2d
1116 (7th Cir. 1992).]
3. Form of Questions
There are specific rules regarding the form in which questions may be asked.
a. Leading Questions
A leading question is one that suggests the answer to the person being asked. Leading
questions generally are not permitted on direct examination, except:
• for preliminary or undisputed matters (e.g., a witness’s demographic information);
• to develop the witness’s testimony;
• for hostile witnesses; or
• if the witness is the opposing party.
For example, a party’s counsel may be permitted to use leading questions to develop
the testimony of a child who is shy and thus not forthcoming with his testimony. In
contrast to direct examination, leading questions are permitted during crossexamination. [Fed. R. Evid. 611(b); Leading Question, Black’s Law Dictionary (11th ed.
2019).]
b. Other Restrictions on the Form of Questions
In addition to restricting leading questions, a court generally will not permit questions
that are misleading, confusing, inflammatory, compound, ask for a narrative response,
call for speculation, or have been sufficiently asked and answered.
4. Exclusion of Witnesses
The court must, upon request, or may, upon its own motion, order a witness to leave the
courtroom so that the witness does not hear the testimony of other witnesses. This rule
may not be used to exclude (1) parties, (2) a party’s designated representative if the party
is not a natural person, (3) a person whose presence is essential to the case ( e.g., an
expert witness), or (4) a person authorized by statute to be present. [Fed. R. Evid. 615;
Morvant v. Constr. Aggregates Corp., 570 F.2d 626 (6th Cir. 1978).]
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Examples:
(1) A defendant requested to have the police officer in charge of the investigation
excluded from the courtroom, so the officer could not hear other witnesses’ testimony.
However, the officer was the government’s designated representative in the case. Thus,
the defendant’s request to have the police officer excluded was correctly denied based
on Rule 615(b) of the FRE. [Adapted from United States v. Payan, 992 F.2d 1387 (5th Cir.
1993).]
(2) A defendant on trial for mail fraud, wire fraud, and money laundering moved to
sequester the state’s summary witness. Prior to trial, the witness spent approximately
1,800 hours familiarizing himself with hundreds of pages of bank records and financial
spreadsheets. Accordingly, the court denied the defendant’s sequestration motion on the
ground that the case was a complex fraud prosecution in which the witness was essential
to helping the prosecutor understand the significance of new testimony and explain it to
the jury. [Adapted from United States v. Fujinaga, 2022 WL 671018 (9th Cir. 2022).]
Compare:
A man sued his neighbor after suffering a broken jaw in a fistfight that occurred while
they were both spectators at a hockey game. The man requested that the court exclude
the nonparty eyewitnesses from the courtroom during the testimony of other witnesse s.
Under Rule 615 of the FRE, the court ordered the exclusion of these witnesses, as
requested.
a. Relation to Rule Authorizing Court to Control Witness Examination
If a witness may not be excluded under one of the exceptions to the rule permitting
exclusion of a witness, the court may exercise its procedural powers to protect the
integrity of the witness’s testimony. For example, the court may order the witness to
testify first so that her testimony will not be influenced by the testimony of others.
[Fed. R. Evid. 611, 615.]
b. Persons Authorized by Statute to Be Present
Congress added an exception to the rule permitting exclusion of witnesses from the
courtroom to include a “person authorized by statute to be present” among those who
may not be excluded from the courtroom. [Fed. R. Evid. 615(d).] Congress added this
subsection after it passed a statute permitting victims of crimes to be present
throughout the trial of the crime. [See Fed. R. Evid. 615 advisory committee’s note.]
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Example:
The defendant in a criminal fraud case requested that the victims of the fraudulent
conduct be excluded from the courtroom under Rule 615 of the FRE. However, the
Crime Victims’ Rights Act, 18 U.S.C. § 3771 (2012), authorized the victims to be
present for the entire trial. Thus, the defendant’s request was denied based on that
statute and Rule 615(d). [Adapted from United States v. Edwards, 526 F.3d 747 (11th
Cir. 2008).]
Impeachment, Contradiction, and Rehabilitation
Impeachment is the questioning or discrediting of a witness’s veracity or reliability. Any party
may impeach any witness, including a witness the party has called. Once a witness has been
impeached, the opposing party may rehabilitate that witness’s credibility. [Fed. R. Evid. 607.]
1. Impeachment Issue-Spotting
There are a number of different impeachment methods. The nature of the impeachment
method affects whether and under what circumstances a party may use evidence other
than the impeached witness’s own testimony (i.e., extrinsic evidence) to impeach.
a. Intrinsic and Extrinsic Evidence
A party may use all types of impeachment methods to impeach a witness by the
witness’s own testimony (intrinsic or examination evidence) during direct or (more
typically) cross-examination. Except for impeachment by specific instances of conduct,
all types of impeachment methods may also include the introduction of evidence other
than the witness’s testimony (extrinsic evidence), such as the testimony of other
witnesses, audio and video recordings, documents, or other physical objects. However,
an impeaching party must usually lay a foundation before introducing extrinsic
evidence. [See Laying a Foundation, supra.]
b. Collateral-Evidence Rule
For impeachment methods in which the use of extrinsic evidence is permitted,
sometimes the collateral-evidence rule bars the admission of extrinsic evidence to
impeach a witness on a collateral matter. A collateral matter is a matter that has no
tendency to make any fact in the proceeding (other than the witness’s impeachment)
more or less probable. The collateral-evidence rule is designed to avoid undue
distraction and mini-trials on a witness’s credibility. The collateral-evidence rule
evolved at common law before the FRE’s promulgation.
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Methods of Impeachment to Which the Collateral-Evidence Rule Applies
The collateral-evidence rule bars the admission of extrinsic evidence to impeach a
witness for an inconsistent statement and by contradiction on a collateral matter.
To use extrinsic evidence to impeach a witness by these methods, the matter on
which the witness is impeached must be noncollateral, i.e., it must relate to a fact
of consequence in the proceeding. [See Inconsistent Statements and Conduct,
Contradiction, infra.]
Methods of Impeachment to Which the Collateral-Evidence Rule Does Not Apply
The collateral-evidence rule does not bar the admission of extrinsic evidence to
impeach a witness for bias and interest or for a qualifying prior criminal conviction
because a witness’s bias or qualifying prior criminal conviction are not collateral
matters. [See Bias and Interest, Conviction of Crime, infra.]
c. Applicability of Rule 403
Regardless of whether the collateral-evidence rule applies to the particular
impeachment method, Rule 403 of the FRE also governs the admission of any extrinsic
evidence used to impeach a witness. Rule 403 bars the admission of extrinsic
evidence to impeach a witness if the evidence’s probative value is substantially
outweighed by the risk of unfair prejudice, confusing or misleading the jury, wasting
time, or needlessly introducing cumulative evidence. The FRE employ a heightened
admissibility standard leaning toward exclusion if the impeaching evidence is a prior
felony conviction used to impeach a criminal-defendant witness. [See Conviction of
Crime, infra.]
2. Inconsistent Statements and Conduct
One way to impeach the credibility of a witness’s testimony is to introduce prior
inconsistent statements: evidence that the witness made statements in the past that were
inconsistent with part or all of his current testimony. These are extrinsic statements
because they are not statements made at the present proceeding in which the witness is
being impeached. Because statements of this type are often hearsay, in most jurisdictions
prior inconsistent statements may be used only to impeach and not as substantive
evidence. However, prior inconsistent statements made under oath at prior proceedings
are not hearsay and may be admitted as substantive proof of the matter asserted. [Fed. R.
Evid. 801(d)(1)(A).]
Examples:
(1) A defendant was on trial for possession and sale of narcotics. A witness for the
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prosecution told police officers during the investigation that the defendant had sold him
drugs on the day in question. At trial, the witness denied seeing the defendant on that
day. The prosecution introduced the prior inconsistent statement made to the police
officers regarding seeing the defendant on that day for purposes of impeaching the
witness’s credibility. However, the prosecution could not introduce the contents of the
statement indicating that the defendant sold the witness drugs. [ Wisconsin v. Major, 79
N.W.2d 75 (Wis. 1956).]
(2) A buyer sued an art dealer for fraudulent misrepresentation arising out of the buyer’s
purchase of a $200,000 sculpture from the dealer. The buyer claimed that the dealer had
falsely misrepresented who had created the sculpture. The dealer denied the f alse
representation. The buyer called one of the dealer’s business partners to testify about the
dealer’s representations regarding the sculpture’s creator. Unexpectedly, the business
partner testified that the dealer had never falsely represented who crea ted the sculpture
and denied having made any contrary statement. The plaintiff called a second witness to
testify that the business partner told the second witness that the dealer had falsely told
the buyer who had created the sculpture. The dealer objected. Because the second
witness’s testimony was not made under oath, it did not satisfy the requirements for
exclusion from hearsay. Therefore, the testimony was admissible only to impeach the first
witness.
a. Extrinsic Evidence Permitted, but Not Required
Extrinsic evidence of a prior inconsistent statement is not a prerequisite to asking
about the prior statement, although a court may require some good -faith basis for
asking.
b. Procedures for Using Extrinsic Evidence to Impeach with a Prior
Inconsistent Statement (Collateral-Evidence Rule Applies)
If a party opts to use extrinsic evidence to impeach a witness with a prior inconsistent
statement, the extrinsic evidence is admissible for impeachment purposes only if (1)
the prior statement relates to a noncollateral matter (i.e., to facts of consequence at
trial), (2) the witness is afforded the chance to explain or deny the statement, and (3)
the opposing party has the chance to question the witness about it. The impeaching
party must lay a foundation before the extrinsic evidence is admissible. [Fed. R. Evid.
613(b); United States v. Tarantino, 846 F.2d 1384 (D.C. Cir. 1988); see Laying a
Foundation, supra.]
c. Direct Contradiction Not Required
Whether a prior statement is inconsistent with a witness’s current testimony is left to
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the trial court’s discretion. To be inconsistent with the witness’s present testimony,
the prior statement need not be directly contradictory. Rather, any difference between
the prior statement and the current testimony that has a reasonable bearing on
credibility is sufficient to render the statement inconsistent. Moreover, the
inconsistency need not be plain on the face of the two statements; it may be apparent
from the surrounding circumstances. An inconsistency can also arise if a witness omits
a fact that one might reasonably expect a similarly situated person to mention if he
believed it to be true. [United States. v. Agajanian, 852 F.2d 56 (2d Cir. 1988); Charles
Alan Wright, et al., 28 Federal Practice and Procedure § 6203 (3d ed. & Supp. 2022).]
Example:
A witness’s prior recorded statements of “I want it” and “I’ll take it,” in reference to a
firearm, were inconsistent with the witness’s trial testimony that he only took
possession of the firearm temporarily as a middleman before delivering it to a third
party who was serving as a government informant. It was unnecessary for the
recorded statements to directly contradict the witness’s trial testimony in order to be
used for impeachment purposes as prior inconsistent statements. [ United States v.
Richardson, 515 F.3d 74 (1st Cir. 2008).]
d. Inconsistent Statements within Testimony
If a witness makes inconsistent statements within her present testimony, the rule on
prior inconsistent statements (i.e., statements outside of the present proceeding) does
not apply.
Example:
A witness testified that a traffic light was red. Later, in the same line of questioning,
the witness testified that the traffic light was yellow. Both statements are admissible
because both were made in court in the present proceeding under oath. There is no
prior (i.e., outside of the present hearing) inconsistent statement that would be
covered by the rule. It is for the jury to decide which version to believe or to reject
the witness’ testimony as untrustworthy.
e. Prior Inconsistent Conduct
Rule 613 of the FRE does not expressly address impeachment by prior inconsistent
conduct. To impeach a witness based on the witness’s prior conduct, a party must rely
upon the witness’s prior criminal convictions or the witness’s specific instances of
conduct. [Fed. R. Evid. 608, 609; Fed. R. Evid. 613 advisory committee’s note; United
States v. Smith, 605 F.2d 839 (5th Cir. 1979); see Conviction of Crime, Specific
Instances of Conduct, infra.]
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3. Bias and Interest
Bias is a preconceived self-interest or belief held by a witness that induces the witness,
either consciously or subconsciously, to give testimony that is not completely truthful, to
favor or disfavor a party. Bias can be caused by family relationships, friendships,
employment relationships, the receipt of something of value in exchange for testimony,
fear of retaliation, or general like or dislike. [ United States v. Abel, 469 U.S. 45 (1984).]
a. Extrinsic Evidence of Bias Permissible
Bias is always relevant, but courts generally require a party to lay a foundation before
introducing extrinsic evidence of a witness’s bias. A party may lay a foundation for
future extrinsic evidence about a witness’s bias by, for example, asking the witness
himself questions about the bias. Proof of a familial, friendly, or employment
relationship between a witness and a party, for example, also provides the foundation
for introduction of bias. A witness’s bias does not affect the admissibility of the
witness’s testimony; it goes to the relative weight of the witness’s testimony.
b. Extrinsic Evidence of Bias Not Subject to Collateral-Evidence Rule
Extrinsic evidence of a witness’s improper bias or interest is not subject to the
collateral-evidence rule. Unlike evidence of prior inconsistent statements, extrinsic
evidence that a witness has an improper bias or interest is never collateral. Parties may
question a witness about the witness’s alleged bias or interest as well as prove the
existence of that bias or interest by introducing extrinsic evidence. [Fed. R. Evid. 403,
611; United States v. Abel, 469 U.S. 45 (1984); United States v. Moore, 529 F.2d 355,
357 (D.C. Cir. 1976).]
Example:
At a defendant’s trial for a gang-related murder, the prosecution introduced, as former
testimony, a statement by a gang member who had testified against the defendant at
the preliminary hearing and then invoked his privilege against self -incrimination. The
defendant sought to impeach the gang member’s credibility with testimony from a
witness that when the gang member testified at the preliminary hearing, the gang
member had been challenging the defendant’s leadership role in the gang. This
testimony was evidence of bias. It showed that the gang member had a motive to
falsely implicate the defendant because, by doing so, he would remove the defendant
from the leadership position that the gang member sought. Because evidence of bias
is considered important, it is liberally admitted. Therefore, the court admitted the
evidence of the gang member’s bias.
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c. Applicability of Rule 403
Although the collateral-evidence rule does not bar the use of extrinsic evidence, Rule
403 of the FRE still controls. Therefore, courts should evaluate whether the probative
value of any extrinsic evidence of a witness’s bias is substantially outweighed by
unfair prejudice, confusion, waste of time, or needless presentation of cumulative
evidence. [Fed. R. Evid. 608(b) advisory committee’s note.]
4. Conviction of Crime
For impeachment purposes, a party may cross-examine a witness regarding a prior
conviction if the conviction was (1) for a crime punishable by death or more than one year
of imprisonment (usually, but not always felonies) or (2) for a crime involving a dishonest
act or false statement, regardless of the punishment. The introduction of a prior
conviction may be used only to attack the witness’s character for truthfulness. If the
witness denies or has forgotten about the conviction, the record of conviction m ay be
introduced into evidence. If admissible, evidence of the prior conviction is limited to the
name of the offense, the date of the offense, and the punishment for the conviction.
[Fed. R. Evid. 609.]
a. Only Convictions Admissible
Rule 609 of the FRE only admits evidence of prior convictions. Rule 609 does not
admit arrests or indictments. However, the conduct that resulted in the arrest or
indictment may be admissible to impeach the witness as a specific instance of conduct
if it relates to the witness’s untruthfulness. [Fed. R. Evid. 608(b), 609(a); see Specific
Instances of Conduct, infra.]
b. Actual Punishment Imposed Not Relevant to Conviction’s Admissibility
To admit a prior conviction of an offense punishable by death or more than one year
of imprisonment, the actual punishment imposed does not matter. Rather, the
maximum punishment authorized by law determines the admissibility of a prior
conviction under Rule 609(a)(1)(B) of the FRE.
c. Admissibility of Prior Felony Convictions
There is a higher standard of admissibility for a prior felony conviction of a criminal defendant witness than there is for a witness who is not a criminal defendant, because
evidence of prior convictions is viewed as extremely prejudicial to criminal defendants.
However, evidence of a crime involving a dishonest act or false statement of a witness
must be admitted, regardless of whether the witness is a criminal defendant. [Fed. R.
Evid. 609(a)(1).]
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Criminal-Defendant Witness
An otherwise-admissible prior felony conviction of a criminal-defendant witness is
admissible only if the probative value of admitting the prior felony conviction
outweighs its prejudicial effect. For convictions over 10 years old, evidence of the
conviction is admissible only if (1) its probative value substantially outweighs its
prejudicial effect, and (2) the proponent gives an adverse party a fair opportunity to
contest its use. [Fed. R. Evid. 609(a)(1)(B), (b).]
Example:
A defendant was on trial for assault. His prior conviction for assault was
inadmissible because its probative value to the current assault trial did not
outweigh the prejudicial effect that the prior, unrelated assault conviction would
have on the jury. [United States v. Sanders, 964 F.2d 295 (4th Cir. 1992).]
Witness Who Is Not a Criminal Defendant
An otherwise-admissible prior felony conviction of a witness who is not a criminal
defendant is admissible under the same standard as Rule 403 of the FRE, meaning
the prior conviction must be admitted unless the probative value of admitting the
prior felony conviction is not just outweighed, but is substantially outweighed, by
its prejudicial effect. [Fed. R. Evid. 609(a)(1)(A).]
d. Crimes Involving a Dishonest Act or False Statement
Crimes involving a witness’s character for truthfulness must be admitted, regardless of
the type of crime (whether felony or misdemeanor), the type of witness (whether a
criminal defendant or not), or how prejudicial the evidence is. Common examples of
crimes involving a dishonest act or false statement are perjury, fraud, and false
pretenses, as each requires an act of dishonesty as an element of the crime. Although
there is some disagreement over whether theft or drug crimes fall under this category,
most courts have held that they do not and that the admissibility of evidence of these
types of convictions is subject to a balancing test under Rule 403 of the FRE. [Fed. R.
Evid. 609(a)(2); see Exclusion for Unfair Prejudice, Confusion, or Waste of Time, infra.]
Example:
A prison inmate filed a civil-rights lawsuit against a guard at his prison, alleging that
the guard had violated the inmate’s constitutional rights during an altercation. The
inmate and the guard, who were the only witnesses to the incident, provided
contradictory reports about what occurred. After the inmate testified at his jury trial,
the guard’s counsel moved for leave to impeach the inmate with an eight -year-old
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misdemeanor perjury conviction. Misdemeanor perjury was punishable by up to one
year in jail and a fine up to $10,000. The inmate was not sentenced to jail time but
was fined $5,000. Because the inmate’s eight-year-old misdemeanor conviction was
for perjury, a crime of dishonesty, and was within the past 10 years, evidence of the
conviction was admitted.
e. Passage of Time
If more than 10 years have passed since the conviction or the witness’s release from
jail or prison (whichever is later), the bar for admissibility rises, regardless of the nature
of the prior conviction or whether the witness is a criminal defendant. After 10 years,
evidence of a prior conviction is admissible only if its probative value substantially
outweighs its prejudicial effect. Note that this is the opposite of the presumption in
Rule 403 of the FRE. Additionally, the party seeking to introduce the 10-year-old
conviction must give the adverse party reasonable written notice of the intent to use
the conviction, so that the adverse party can contest its use. [Fed. R. Evid. 609(b).]
f. Other Limitations—Pardons and Juvenile Adjudications
A prior conviction is not admissible if (1) it was pardoned or annulled, or (2) the
conviction was a juvenile adjudication. However, a prior juvenile conviction of a
witness who is not a criminal defendant may be admissible if necessary to fairly
determine guilt or innocence in a criminal case, if an adult conviction for the same
offense would be admissible to attack the adult’s credibility. [Fed. R. Evid. 609(c) -(d).]
Example:
A teenager trespassed on a defendant’s property in violation of the teenager’s
probation, which was imposed as a result of a juvenile adjudication. In response to the
trespass, the defendant fired warning shots at the teenager and was charged with
aggravated assault. The defendant may impeach the teenager with evidence of the
juvenile adjudication, because the teenager’s testimony was central to the
prosecution’s case, and the juvenile adjudication was the only evidence that could
impeach the teenager. Moreover, because the teenager was on probation, he had
added motive not to testify truthfully about the trespass, as it would have been a
probation violation. [Arizona v. Van Den Berg, 791 P.2d 1075 (Ariz. Ct. App. 1990).]
g. Convictions Admissible for Other Reasons
Rule 609 of the FRE is applicable to convictions used to impeach the witness’s
character for truthfulness. Convictions introduced for other reasons are not subject to
the rule allowing impeachment by evidence of criminal convictions. Rather, these
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convictions are subject to the probative value/prejudicial effect balancing test of Rule
403 of the FRE. [See Fed. R. Evid. 609.]
Example:
A defendant in a drug case testified that he had never seen marijuana. The
prosecution was permitted to introduce—after passing Rule 403 scrutiny—evidence of
a prior marijuana conviction for the purpose of contradicting the defendant’s
testimony. [United States v. Lopez, 979 F.2d 1024 (5th Cir. 1992); see Contradiction,
infra.]
5. Specific Instances of Conduct
A party may inquire about specific instances of conduct, or prior bad acts not resulting in a
conviction, related to a witness’s character for truthfulness, if the party has a plausible,
good-faith basis for doing so. However, the inquiring party must stop the inquiry at the
witness’s answer and may not use extrinsic evidence to prove that the conduct actually
occurred. [Fed. R. Evid. 608(b), 609.]
Example:
In a personal-injury trial, the plaintiff testified on direct examination that she was merging
onto the highway from an entrance ramp when the defendant’s truck struck her sedan.
The plaintiff further testified that before she attempted to merge, she had s lowed down,
checked her mirrors, and, seeing no vehicles in her path, accelerated to merge. On cross examination, the defense asked the plaintiff whether she had been driving carefully at the
time of the collision. The plaintiff replied affirmatively. The defense sought to ask the
plaintiff about three collisions she had been involved in during the two years prior to this
collision. In all the previous collisions, the plaintiff received traffic citations for failing to
yield while merging. Because improperly failing to yield on the other occasions neither
bore on the plaintiff’s veracity nor contradicts her testimony, the lawyer could not ask the
plaintiff about the other incidents.
a. Extrinsic Evidence of Prior Bad Acts Not Permitted
A party may not use extrinsic evidence to impeach a witness with the witness’s prior
bad acts. A party may only examine or cross-examine the witness herself about the
prior bad acts. [Fed. R. Evid. 608(b), 609.]
b. Relation to Rule 403 Balancing Test
If evidence of a specific instance of conduct related to a witness’s character for
truthfulness is admissible for impeachment purposes, the line of questioning will not
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be permitted if, under Rule 403 of the FRE, its probative value is substantially
outweighed by its prejudicial effect. In determining the prejudicial effect, the court will
examine, among other things, the nature of the act, how long ago the act occurred,
whether the witness has already been impeached on other grounds, the importance of
the witness’s credibility, and the similarity of the witness’s prior bad acts to the issues
in the case. [Fed. R. Evid. 403, 608(b).]
c. Underlying Facts of Prior Conviction Not Admissible as Prior Bad Acts
Even if evidence of a prior conviction is admissible for impeachment purposes, the
conviction’s underlying facts are not admissible as specific instances of conduct. This is
because the rule allowing impeachment by prior bad acts applies only to conduct that
did not result in a conviction. [Fed. R. Evid. 608(b), 609.]
Example:
A court determined that a witness’s prior murder conviction ( i.e., the name of the
offense, date, and punishment only) was admissible to impeach the witness. However,
the opposing party was prohibited from introducing evidence of the facts that gave
rise to the murder conviction.
6. Character for Truthfulness
When a witness takes the oath to testify truthfully, he opens the door to admission of
evidence about his character for truthfulness. Impeaching a witness’s character for
truthfulness is an exception to the limitations on character evidence imposed by Rule 404
of the FRE. A witness’s character for truthfulness may be bolstered only after his
character is attacked, and only with reputation or opinion evidence. [Fed. R. Evid. 608;
see Character and Related Concepts, infra.]
a. Methods of Attacking Character for Truthfulness
A witness’s character for truthfulness may be attacked by calling another witness to
testify about the witness’s reputation for untruthfulness or to provide opinion
testimony about the witness’s bad character for truthfulness. A party may also ask the
witness herself during cross-examination about specific instances of conduct (i.e., prior
bad acts not resulting in a conviction) indicative of her bad character for truthfulness.
However, a party may not use extrinsic evidence to prove the prior bad acts. Finally, a
party may ask a witness about, or offer extrinsic evidence of, the wit ness’s prior
criminal convictions. [Fed. R. Evid. 608(a)-(b); see Specific Instances of Conduct,
Conviction of Crime, supra.]
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Reputation Evidence
Reputation evidence refers to evidence indicating that the witness has a bad
reputation for truthfulness in the witness’s community. To give reputation testimony
about another witness, a person serving as a character witness must be sufficiently
familiar with the witness’s reputation in the witness’s community to give
competent testimony on the topic. [Fed. R. Evid. 608(a).]
Examples:
(1) An investigator had only a few conversations with people in the witness’s
community and did so only for the purpose of uncovering reputation evidence. The
investigator was not competent to testify about the witness’s reputation in the
community, because the investigator did not have sufficient familiarity with the
witness’s reputation or the people in the witness’s community. [ United States v.
Perry, 643 F.2d 38 (2d Cir. 1981).]
(2) A defendant was charged with Social Security fraud, a federal crime. The
defendant declined to testify at his trial; however, he called a witness who testified
that the defendant had a reputation for honesty. On cross-examination, the
government asked the witness whether she had heard that the defendant had
been arrested for forgery two years earlier. Because the witness testified that she
knew about the defendant’s reputation, the prosecutor could test the basis and
adequacy of that knowledge, as well as the nature of the community itself. If the
witness answered that she had not heard about the arrest, that admission could
have indicated that she was not very knowledgeable about the defendant’s
reputation in the community, because that type of arrest w ould likely have
negatively affected his reputation. Conversely, if the witness answered that she
had heard about the arrest, that could have raised a negative inference about the
community itself and its standard for what is an honest person.
Opinion Evidence
Opinion evidence refers to a witness’s testimony about his or her personal opinion
about another witness’s character for truthfulness. To give opinion testimony
about another witness, a person serving as a character witness must know and be
familiar with the witness. [Fed. R. Evid. 608(a).]
b. Character for Truthfulness Versus Prior Inconsistent Statement
Impeaching a witness’s character for truthfulness is an attack on the witness’s
character generally, whereas impeaching a witness for a prior inconsistent statement is
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impeachment of the witness’s ability to tell the truth at the present trial, specifically.
In other words, when a party impeaches a witness’s character for truthfulness, the
impeaching party is saying to the court, “This witness is a liar by nature and thus may
be lying now.” When a party offers evidence of a witness’s prior inconsistent
statement, the impeaching party is saying, “This witness said something different
about this case previously and thus may not be able to testify truthfully about the
matters of this case.” This distinction is important, because extrinsic evidence may be
used to prove a prior inconsistent statement, but it may not be used for all methods of
attacking the witness’s character for truthfulness. For example, extrinsic evidence is
not admissible to prove a witness’s prior bad acts in order to impeach th e witness’s
character for truthfulness. [Fed. R. Evid. 609, 613(b).]
7. Ability to Observe, Remember, or Relate Accurately
Although this method is not explicitly mentioned in the FRE, a party may impeach a
witness with examination or extrinsic evidence based on the witness’s inability to observe,
recall, or relate facts or events accurately. In these cases, the witness is deemed
competent (unless she completely lacks personal knowledge), but she still may be
impeached for lack of ability to observe, remember, or relate accurately. For example, a
witness may be impeached based on sensory deficits such as poor eyesight or a brain
injury affecting the witness’s ability to recall events. [Fed. R. Evid. 601; see Competency
of Witnesses, supra; but see Refreshing Recollection, supra.]
Example:
A party was permitted to inquire into a witness’s regular drug use in an attempt to
demonstrate that the witness lacked the ability to observe and remember facts accurately.
The witness was competent to testify, but he could still be impeached. [ United States v.
Kaplan, 832 F.2d 676 (1st Cir. 1987).]
8. Impeachment of Hearsay Declarants
Hearsay is an out-of-court statement that a party is seeking to introduce in the present
proceeding for the truth of the matter asserted in that statement. Hearsay is presumptively
inadmissible, but after an out-of-court statement is admitted into evidence under a
hearsay exception, the declarant’s credibility may be attacked with any evidence that
would be admissible if the party had actually made the statement at trial. Once attacked,
the declarant’s credibility may then be rehabilitated. [Fed. R. Evid. 806; see Hearsay and
Circumstances of Its Admissibility, infra.]
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a. Hearsay Declarant Impeachable by Any Methods Available for Witness
Testifying at Trial
A party may impeach a hearsay declarant using any evidence that would be admissible
if the declarant had testified at trial. [Fed. R. Evid. 806 advisory committee’s note.]
b. Impeaching a Hearsay Declarant with an Inconsistent Statement or
Conduct
Some limits on how a witness may be impeached do not apply when impeaching a
hearsay declarant. A party may introduce a statement by or conduct of a hearsay
declarant that is inconsistent with the hearsay statement, regardless of when the
statement or conduct occurred or whether the hearsay declarant has an opportunity
to explain or deny it. The rule allowing impeachment of a witness with prior
inconsistent statements only if the witness is given the chance to explain or deny the
inconsistency is inapplicable; the hearsay declarant is not afforded the opportunity to
explain. Note that inconsistent conduct is also admissible against a hearsay declarant,
but not a witness. Moreover, in the context of an admitted hearsay statement, the
inconsistent statement is not necessarily made prior to the hearsay statement. [Fed. R.
Evid. 613, 806.]
Examples:
(1) A tourist sued a carnival for injuries she sustained when the carnival’s Ferris wheel
allegedly malfunctioned, causing the tourist to fall out of the ride. At trial, a carnival
witness testified that just before the tourist’s fall, the witness heard a bystander say to
her companion, “That crazy woman is standing up!” The tourist offered the testimony
of another witness to testify that the day after the accident, the same bystander
described the incident to the witness and told her that the ride had stop ped suddenly
and “threw the woman out of the ride.” This statement is admissible only as a prior
inconsistent statement to impeach the bystander because it contradicts the
bystander’s earlier statement. The testimony is not admissible as substantive eviden ce
to prove the facts asserted in the statement, because that would be hearsay.
(2) At a defendant’s robbery trial, a private mall security guard testified for the
prosecution, without objection, that while the guard was on a break, the defendant’s
brother rushed up to him and said, “Hurry! My sister is robbing the jewelry store!” The
defendant then sought to call a witness to testify that the brother, who was
unavailable to testify, later told the witness, “I got my sister into trouble by telling a
security guard that she was robbing the jewelry store, but I now realize I was
mistaken.” Ordinarily, a witness who has been impeached with a prior inconsistent
statement must be given an opportunity to explain or deny the statement. However,
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when a hearsay declarant is not produced at trial, it is not possible to provide that
opportunity. Therefore, FRE 806 provides that the ordinary requirement of a fair
opportunity to explain or deny a prior inconsistent statement is not applicable to
hearsay declarants.
c. No Hearsay Statements Solely to Impeach
A party may not introduce a hearsay statement for the sole purpose of impeaching the
statement with otherwise-inadmissible extrinsic evidence. This technique improperly
evades the rules of evidence. For example, because a nontestifying criminal
defendant’s prior conviction for embezzlement is inadmissible, it would be a
circumvention of the evidentiary rules for the prosecution to ask a witness about the
defendant’s prior statement that he had never stolen anything in his life, for the sole
purpose of then introducing the defendant’s prior conviction to impeach the witness.
9. Rehabilitation of Impeached Witnesses
A party may bolster a witness’s credibility only after it has been attacked. In general,
evidence used to rehabilitate an impeached witness must directly answer the
impeachment evidence. Mere vigorous cross-examination of the witness or the fact that a
witness has been contradicted by other evidence is not an attack on the witness’s
credibility that justifies rehabilitation. [United States v. Thomas, 768 F.2d 611 (5th Cir.
1985).]
Example:
A plaintiff sued a sheriff after being injured while in the sheriff’s custody. The plaintiff
testified that the sheriff made certain statements, but the sheriff denied making them.
The court did not permit evidence regarding the sheriff’s good character fo r truthfulness,
because the plaintiff’s testimony was merely a contradiction and did not constitute an
explicit attack on the sheriff’s character for truthfulness. [ Stokes v. Delcambre, 710 F.2d
1120 (5th Cir. 1983).]
a. Good Character for Truthfulness
A witness’s character for truthfulness may be bolstered only after his character for
truthfulness is attacked, and only with reputation or opinion evidence. [Fed. R. Evid.
608.]
b. Prior Consistent Statement
A prior, consistent out-of-court statement is admissible to (1) refute allegations of
recent fabrication or improper motive or (2) rehabilitate credibility if attacked on other
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grounds. The opposing party must be given an opportunity to cross -examine the
declarant-witness about the prior consistent statement. Once admitted, the
statements may be used as substantive evidence and are not limited to uses pertaining
to the witness’s credibility. [Fed. R. Evid. 801(d)(1)(B); see Declarant-Witness’s Prior
Consistent Statement, infra.]
Example:
A witness made an out-of-court statement about a drug case to an FBI agent. After
the witness testified at trial, the defense alleged that the witness made up the
testimony simply to help send the defendant to jail. The prosecution was entitled to
introduce the prior consistent out-of-court statement to rebut the charge of
fabrication. [United States v. Stover, 329 F.3d 859 (D.C. Cir. 2003).]
c. Rule 403 Applicable
Otherwise-admissible rehabilitation evidence will not be admitted if its probative value
is substantially outweighed by its prejudicial effect. [Fed. R. Evid. 403.]
d. Redirect Examination
If the court permits, a party may also rehabilitate an impeached witness by re examining the witness after cross-examination to explore and explain any
inconsistencies that arose.
10. Contradiction
Impeaching a witness by specific contradiction involves addressing inconsistencies
between the witness’s present testimony and facts other than prior inconsistent
statements. Like bias, specific contradiction is not explicitly covered in the FRE but is
governed by the rules addressing relevance and probative value. By definition, specific
contradiction will always require the admission of extrinsic evidence (the evidence bein g
used to contradict the witness). [Fed. R. Evid. 401-03; see Exclusion for Unfair Prejudice,
Confusion, or Waste of Time, infra.]
Example:
A defendant was asked if he was a drug dealer, which he denied. The prosecution was
then permitted to impeach the defendant with evidence of prior convictions for drug
dealing. The convictions were admitted not under the rule generally permitting
impeachment by evidence of prior convictions, but instead under the doctrine of
impeachment by specific contradiction. [United States v. Gilmore, 553 F.3d 266 (3d Cir.
2009).]
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a. Specific Contradiction Distinguished from Prior Inconsistent Statements
The distinction between prior inconsistent statements and specific contradiction is
important because different evidentiary rules govern these two impeachment
methods. Prior inconsistent statements are self-contradiction through statements
made out of court or in a prior proceeding. On the other hand, specific contradiction
involves inconsistencies between the witness’s present testimony and specific
contradicting evidence other than prior inconsistent statements or even the witness’s
own statements. Impeachment by specific contradiction reveals that some part of the
witness’s testimony is not true. [See Fed Rule Evid. 801(d)(1)(A); Inconsistent
Statements and Conduct, supra.]
Example:
A defendant was charged with possession of marijuana with intent to distribute. On
direct examination the defendant testified that she worked as a drug counselor, that
she hated drugs, and that she had never used drugs and would not touch them. The
government called a police officer as a rebuttal witness. The officer testified that,
three years earlier, he saw the defendant purchase fentanyl from a drug dealer. The
officer’s testimony about the prior drug purchase directly contradicted the defendant’s
direct-examination testimony that she would never possess drugs. Therefore, the
officer’s testimony was an admissible contradiction with which to impeach the
defendant.
b. Rules Governing Specific Contradiction versus Prior Inconsistent
Statements
Although impeachment by prior inconsistent statements is governed by the FRE, the
FRE do not explicitly address specific contradiction. Specific contradiction is governed
by the rules addressing relevance and probative value. [See Fed. R. Evid. 401-03;
United States v. Tarantino, 846 F.2d 1384, 1409 (D.C. Cir.1988); Exclusion for Unfair
Prejudice, Confusion, or Waste of Time, infra.]
c. Collateral-Evidence Rule Applies to Impeachment by Contradiction
The collateral-evidence rule bars the use of extrinsic evidence (i.e., evidence other than
testimony of the witness being impeached) to impeach by specific contradiction on a
collateral matter. If the specific-contradiction evidence is not collateral (i.e., the
evidence has some tendency to prove or disprove a fact in addition to specifically
contradicting the witness’s testimony), the collateral-evidence rule does not apply, and
both intrinsic and extrinsic evidence may be used to impeach by specific contr adiction.
Thus, although the accuracy of a witness’s perception or memory may always be
tested through traditional cross-examination techniques, the collateral-evidence rule
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limits the extent to which the witness’s testimony about nonessential matters may be
contradicted by extrinsic proof. [See, e.g., Simmons v. Pinkerton’s, Inc., 762 F.2d 591
(7th Cir. 1985).]
Example:
An eyewitness to an auto accident testified that the car that caused the accident was
red. A party sought to impeach the witness by contradiction, relying on evidence that
the car was actually yellow. If the color of the car were not directly relevant to any
substantive issue in the case (e.g., if the identity of the car were stipulated), it would
not be worth the factfinder's time to have a “mini-trial” on the car's color, simply to
prove that the witness was mistaken.
11. Prosecutor’s Duty to Disclose Evidence Impeaching Government Witness
In a criminal case, evidence that might impeach a prosecution witness whose testimony
relates to the defendant’s culpability is material exculpatory evidence that a prosecutor
must disclose to the defense. A failure to disclose this type of impeachment evidence
violates the defendant’s rights under the Due Process Clause. [ Giglio v. United States, 405
U.S. 150 (1972); Brady v. Maryland, 373 U.S. 83 (1963).]
II. Relevancy and Reasons for Excluding Relevant Evidence
Evidence is admissible if it is relevant, and no other exclusionary rule applies to bar it. Therefore,
relevancy is necessary, but not sufficient, to render evidence admissible. Irrelevant evidence is
not admissible. [Fed. R. Evid. 401-03.]
Probative Value
The probative value of relevant evidence, sometimes called the logical value or weight of the
evidence, is the degree to which evidence makes a material fact more or less likely. The FRE
call material facts facts of consequence. A fact of consequence is connected to the legal
issues in the case, as determined by the substantive law governing the claims and defenses
asserted in the case. Evidence with high probative value is more convincing than evidence
with low probative value. [Fed. R. Evid. 401 advisory committee’s note.]
1. Relevancy
Evidence is relevant if it has any tendency to make the existence of any consequential, or
material, fact more or less probable than it would have been without the evidence . This is a
low bar. If admitted, the weight, or probative value, of the evidence is determined by the
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factfinder—evidence can be relevant and admissible even if it is not very persuasive. [Fed.
R. Evid. 401.]
Examples:
(1) After a fire destroyed an entrepreneur’s vacation home and she collected $3 million in
insurance proceeds, the federal government charged her with arson. At trial, the
government sought to introduce evidence that the entrepreneur had recently lost a $2 .5
million investment in a failed tech start-up, which was her motive for the arson. Although
this evidence was not conclusive that the entrepreneur committed arson, it was relevant
to the issue of whether the entrepreneur had a financial incentive to comm it the arson.
The entrepreneur might have been able to generate cash more quickly by burning down
her home and collecting the insurance proceeds than by selling the property. To be
relevant, evidence needs only to tend to make the existence of a fact of co nsequence
more or less probable than it would be without the evidence. Therefore, evidence that
only has the slightest probative value may be admitted under FRE 401.
(2) A murder was committed in New York City. That the defendant charged with the
murder lived in New York City was relevant, because it made it more probable that the
defendant committed the murder. However, even though the evidence was relevant, this
evidence was not very persuasive, on account of how many people live in New York City.
a. Admissibility of Relevant Evidence
Relevant evidence is admissible unless deemed inadmissible by the US Constitution
(e.g., evidence obtained pursuant to an unreasonable search and seizure under the
Fourth Amendment, evidence obtained in violation of due process under the Fifth
Amendment, or evidence obtained in violation of the right to counsel under the Sixth
Amendment), a federal statute, the FRE, or other United States Supreme Court rules.
[Fed. R. Evid. 402.]
b. Inadmissibility of Irrelevant Evidence
Relevancy is an initial admissibility determination made by the trial judge. Irrelevant
evidence is not admissible. [Fed. R. Evid. 104, 402.]
Example:
A child died in a car crash. The child’s estate sued the car manufacturer, alleging that a
design defect in the car rendered it unable to withstand a crash. The court properly
excluded evidence that the driver of the car was at fault for the accident. The
evidence was irrelevant, because the lawsuit was based on a design defect that made
the car unsafe once a crash occurred, and the cause of the crash was not relevant to
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that determination. [Adapted from Jimenez v. DaimlerChrysler Corp., 269 F.3d 439 (4th
Cir. 2001).]
c. Direct Versus Circumstantial Evidence
In general, relevant evidence may be direct or circumstantial, depending on whether a
factfinder must make any necessary inferences between the evidence and the fact
sought to be proved. Direct evidence is not necessarily better than circumstantial
evidence; the factfinder must weigh all evidence admitted at trial to make its
determination. [See United States v. Russell, 919 F.2d 795 (1st Cir. 1990) (finding that
in certain cases circumstantial evidence may be given the same weight as direct
evidence).]
Direct Evidence
Direct evidence supports a fact without requiring an inference to be made between
the evidence and the fact. For example, in a murder case, eyewitness testimony in
which the witness states that he saw the defendant shoot the victim is direct
evidence of the defendant’s guilt.
Circumstantial Evidence
Circumstantial evidence makes a fact more or less probable but requires the
factfinder to make an inference between the evidence and the fact. For example,
the fact that the defendant owns a gun may be circumstantial evidence of his guilt
in a shooting murder, because the defendant’s gun ownership tends to make it
more probable that the defendant shot and kille d the victim.
d. Conditional Relevance
Evidence is conditionally relevant if its relevance depends on the existence of another
fact. A party offering conditionally relevant evidence must sufficiently demonstrate
the existence of the other fact. [Fed. R. Evid. 104(b).]
Example:
An employee of a company subject to litigation destroyed a document that was
relevant to the litigation. This fact could have been relevant, but its relevance
depended on whether the employee knew about the litigation and the document’s
relevance to the litigation. [Blinzler v. Marriott Int’l, Inc., 81 F.3d 1148 (1st Cir. 1996).]
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2. Exclusion for Unfair Prejudice, Confusion, or Waste of Time
In its discretion, a court may exclude relevant evidence under Rule 403 of the FRE if the
evidence’s probative value is substantially outweighed by a danger of unfair prejudice,
confusing the issues, misleading the jury, undue delay, waste of time, or need lessly
presenting cumulative evidence.
a. Three-Step Process under Rule 403
A court evaluating relevant evidence challenged under Rule 403 of the FRE should:
• determine the probative value of the proffered evidence,
• identify the presence of any of Rule 403’s identified dangers or considerations, and
• balance the probative value of the evidence against the identified dangers or
considerations.
If the identified dangers or considerations substantially outweigh the evidence’s
probative value, the court has the discretion to (but is not required to) exclude the
relevant evidence under Rule 403.
b. Presumption of Admissibility
Because the probative value of the evidence must be substantially outweighed by the
identified dangers or considerations, the balancing test under Rule 403 of the FRE tilts
toward admissibility. Therefore, there is a presumption of admissibility of relevant
evidence under Rule 403. In reviewing challenges to relevant evidence under Rule
403, courts should maximize the evidence’s probative value and minimize its dangers.
[Fed. R. Evid. 403; United States v. Edouard, 485 F.3d 1324 (11th Cir. 2007).]
c. Presumption of Exclusion for Certain Types of Evidence Posing a
Heightened Risk of Unfair Prejudice
The FRE impose an opposite presumption of exclusion for certain types of evidence
that have a heightened risk of unfair prejudice. The following types of evidence should
be excluded unless their probative value substantially outweighs their prejudicial effects :
• a criminal-defendant’s prior felony conviction,
• a criminal conviction more than 10 years old,
• an otherwise-inadmissible basis of an expert’s opinion, and
• in a civil case, evidence of a victim’s sexual behavior.
[Fed. R. Evid. 403, 412, 609, Fed. R. Evid. 703 advisory committee’s note.]
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d. Unfair Prejudice
To a certain degree, any relevant evidence a party offers is prejudicial (harmful) to its
opponent’s case. However, Rule 403 of the FRE is not concerned about just any
prejudice, it is only concerned about unfair prejudice. Evidence is unfairly prejudicial
when it creates an undue tendency to suggest a jury reach a decision on an improper
basis. The improper basis is usually, but not always, an emotional one. In other words,
unfair prejudice results from a factfinder being exposed to evidence that so arouse s
emotions that the factfinder abandons calm and logical reasoning. Unfair prejudice
may also result from the factfinder’s use of evidence admissible for only one purpose
for a different, improper purpose. In addition, unfair prejudice may result from the
factfinder’s use of evidence that is admissible against only one party against other
parties. [Fed. R. Evid. 403 advisory committee’s note; United States v. Cerno, 529 F.3d
926 (10th Cir. 2008); 22A Charles Alan Wright, Arthur R. Miller & Victor James Gold ,
Federal Practice and Procedure Evidence § 5215.1 (3d ed. & Supp. 2022); Prejudice,
Black’s Law Dictionary (11th ed. 2019).]
Example:
A defendant was on trial for cocaine possession. The prosecution was prohibited from
introducing evidence that the defendant abused his wife, even if the evidence was
relevant, because the graphic nature of the evidence was particularly likely to incite
the jury to make an irrational decision, and the evidence was therefore unfairly
prejudicial. [Adapted from United States v. Hands, 184 F.3d 1322 (11th Cir. 1999).]
Compare:
A defendant was charged with money laundering. The prosecution had recordings of
the defendant discussing his money-laundering operation. However, on the
recordings, the defendant frequently used racial and ethnic slurs. The defense argued
that the slurs should be redacted before the recordings were played for the jury. The
court held that the slurs were so prevalent in the recording that their redaction would
hinder the jury’s ability to adequately follow the recordings. Thus, even though the
defendant’s use of slurs was prejudicial, the prejudicial effect did not substantially
outweigh the probative value of having the jury hear and comprehend the entire
substance of the recordings. [United States v. Mackie, 893 F. Supp. 12 (E.D. La. 1995).]
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Factors in Evaluating Unfair Prejudice
Although there is no specific test for determining whether evidence is substantially
more prejudicial than probative, courts generally evaluate:
• the degree to which the evidence might arouse strong emotions or irrational prejudice,
• whether the jury will misuse or overvalue the evidence,
• the probable effectiveness of a limiting instruction on the evidence’s admission,
• whether other means of proof are available, and
• how central the evidence is to the case.
[22A Charles Alan Wright, Arthur R. Miller & Victor James Gold, Federal Practice
and Procedure Evidence §§ 5215, 5215.1 (3d ed. & Supp. 2022).]
Other Means of Proof
If a party seeks to introduce unfairly prejudicial evidence, the court is required
under Rule 403 of the FRE to consider whether other, less prejudicial evidence
would prove the same point.
Example:
A defendant was charged with being a felon in possession of a firearm. To prove
that the defendant was a felon, the prosecution sought to introduce evidence of
the defendant’s prior felony conviction for an act of violence. The defense offered
to stipulate that the defendant was a felon, rather than having the court admit the
prior conviction for an unrelated crime. The court could enter the stipulation as an
alternative, less-prejudicial means to prove the felon element of the felon-firearmpossession crime. [Old Chief v. United States, 519 U.S. 172 (1997).]
1)
Stipulation as an Alternative
The United States Supreme Court has held that although a court may require a
stipulation if a prior conviction is an element of the crime, requiring a
stipulation as an evidentiary alternative should be a rarely invoked method.
[Old Chief v. United States, 519 U.S. 172 (1997).]
2)
Agreement Not to Raise Issue
If a witness enters a plea in exchange for his testimony against a defendant,
the defendant may typically introduce the witness’s plea agreement with the
government to show that the witness is biased against the defendant.
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Admissibility of any plea agreement, like other issues of relevancy, is in the
court’s discretion. A court may also exclude evidence of a witness’s plea
agreement as unfairly prejudicial if the defendant agrees not to raise the plea
agreement on his own to attack the witness’s bias or bring a claim of selective
prosecution. [See United States v. Universal Rehab. Servs. (PA), Inc., 205 F.3d
657 (3d Cir. 2000); Pleas, Plea Discussions, and Related Statements, infra.]
Demonstrative Evidence
If a party seeks to use an in-court or computer-generated demonstration or
recreation of an event, the admissibility of the demonstration is governed by the
Rule 403 balancing test. For example, in a murder trial, a party may seek to show
the jury a computer-animated recreation of the shooting to demonstrate how or
where the shooting could have occurred. This evidence will only be admitted if the
court determines that its probative value is not substantially outweighed by the
risk of unfair prejudice. [See, e.g., Hinkle v. City of Clarksburg, 81 F.3d 416 (4th Cir.
1996).]
Bench Trials
Many courts have held that Rule 403’s unfair-prejudice concerns apply only to jury
trials, and not to bench trials (i.e., a trial with no jury in which the judge is the trier
of fact). If there is no jury, evidence should not be excluded based on the risk of
unfair prejudice, because (1) a judge can avoid improper inferences, and (2) to make
a Rule 403 determination, the judge by definition must review the proffered
evidence, anyway. [See, e.g., United States v. Preston, 706 F.3d 1106 (9th Cir.
2013).]
e. Confusion
The court may exclude evidence under Rule 403 of the FRE if its probative value is
substantially outweighed by a risk of confusing the issues or misleading the jury.
Example:
A defendant’s trademark application was denied by the Trademark Trial and Appeal
Board (TTAB). Later, a plaintiff sued the defendant for trademark infringement over
the mark on the grounds that there was a likelihood of confusion between the
defendant’s mark and the plaintiff’s mark. At trial, the plaintiff sought to introduce
evidence of the TTAB decision, but the court excluded the evidence under Rule 403.
Because a trademark application proceeding and a trademark-infringement suit carry
two different standards for likelihood of confusion, the probative value of the TTAB
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decision was substantially outweighed by the risk of it confusing or misleading the
jury. Thus, the court properly excluded the evidence. [ Adapted from B & B Hardware,
Inc. v. Hargis Indus., Inc., 716 F.3d 1020 (8th Cir. 2013).]
Heightened Rule 403 Scrutiny for Experts
Given how much weight a jury generally gives to expert testimony, courts
scrutinize expert testimony under Rule 403 of the FRE more closely than lay
testimony. Juries’ willingness to ascribe infallibility to experts and other scientific
or technical evidence raises the likelihood that expert testimony will mislead them.
[See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993); see Experts, infra.]
Guilt of a Third Party
In criminal cases, the parties frequently argue over the degree to which alleged
evidence of a third party’s guilt will confuse or mislead the jury. The United States
Supreme Court has held that excluding this type of evidence denies a defendant
his constitutional right to a fair trial, if the evidence raised a reasonable inference
of the guilt of a third party, and the prosecution had presented strong forensic
evidence of the defendant’s guilt. [See Holmes v. South Carolina, 547 U.S. 319
(2006).]
f. Waste of Time
Rule 403 of the FRE also permits a court to exercise its discretion and exclude
evidence if the risk that the evidence will cause undue delay, waste time, or be
needlessly cumulative (i.e., redundant) substantially outweighs the evidence’s
probative value. These considerations are designed to conserve scarce judicial
resources.
Examples:
(1) A pedestrian brought a negligence action against a motorist who struck and injured
her. The parties stipulated to the severity of the pedestrian’s injuries, her pain and
suffering, and the total value of her damages. The parties proceeded to trial only on
the issue of negligence. The motorist sought to introduce evidence that the
pedestrian’s injuries resulted in memory loss, thereby undermining the reliability of her
testimony. The pedestrian countered that if the jury heard about some of her injuries,
it must hear about all of them. Accordingly, the pedestrian sought to introduce
evidence of the full nature and extent of her injuries. Because of the parties’
stipulations, the fact that the pedestrian suffered these injuries did not, by itself, tend
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to prove any disputed fact of consequence that would aid the jury in determining
liability. Therefore, the evidence was a waste of time.
(2) A defendant was charged with battery after running onto the field and attacking an
umpire during a professional baseball game. The judge would not permit the
prosecution to call each of the thousands of fans in attendance to testify that they
saw the defendant commit the act, because that would have been needless (and also a
waste of time) under Rule 403. Once the prosecution sufficiently makes its point with
a few witnesses, the judge will require the prosecution to move on.
Authentication and Identification
For evidence to be admissible, the party proffering the evidence must demonstrate that the
evidence is what the party claims it is. This process is called authentication. Authentication has
a fairly low threshold, because a party need only make a prima facie showing of genuineness.
Once that showing is made, it is up to the jury to decide the true authenticity and probative
value of the evidence. Almost all evidence, besides live witness testimony, must be
authenticated before it may be admitted. [Fed. R. Evid. 901; United States v. Harvey, 117 F.3d
1044 (7th Cir. 1997).]
Examples:
(1) A defendant was on trial for assaulting a man with an axe. The prosecution sought to
introduce into evidence an axe it claimed the defendant used in the assault. To authenticate
the axe, the victim testified that he was “pretty sure” that the axe being introduced was the
one that the defendant used, and that he was familiar with the axe because he had used it
before and seen it in the defendant’s hand. The court properly admitted the axe into
evidence because a reasonable jury could find that the axe introduced was the one the
defendant used. [United States v. Johnson, 637 F.2d 1224 (9th Cir. 1980).]
(2) A defendant was tried on multiple counts of bank fraud for a scheme in which he allegedly
withdrew currency from other peoples’ bank accounts by using false identification and
forging signatures on checks. A codefendant, who had assisted the defendant in five of the
75 transactions for which the defendant was being tried, testified that she had witnessed the
defendant endorse five of the checks. Thereafter, the prosecutor moved to admit all the
checks the defendant had allegedly endorsed, arguing that the jury could compare the
signatures on the checks the codefendant had identified as the defendant’s with the other
checks and conclude that the defendant had signed all the checks. Because jurors are
permitted to determine the authenticity of evidence by comparison with other authenticated
specimens, the court admitted all the checks.
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1. Methods of Authentication
There is no single prescribed way to authenticate evidence. Authentication is often
accomplished simply by a witness with personal knowledge testifying that the evidence is
what it is claimed to be. To save time, parties may agree, or stipulate, that proffered
evidence is authentic. The FRE provide a nonexhaustive list of other ways a party may
authenticate evidence, including a nonexpert authenticating handwriting or a recorded
voice with which he is familiar or an expert comparing a proffered item with an alreadyauthenticated item (e.g., fingerprints, blood, or hair). [Fed. R. Evid. 901(b).]
2. Photographs
A witness with personal knowledge of the scene depicted in a photograph may
authenticate the photograph by testifying that the photograph is a fair and accurate
representation of the scene. [Fed. R. Evid. 901.]
3. Tape Recordings
The authentication of wiretap/tape recordings is often contested. To determine the
authenticity of a wiretap or tape recording, the proffering party must make several
showings about both the recording technology and the contents of the recording.
a. Factors Related to Recording Technology
Regarding the recording technology, the proffering party must show that (1) the
recording device was capable of recording the conversation, (2) the operator was
competent to operate the machine, and (3) the recording has been preserved in a
manner shown to the court. [United States v. Branch, 970 F.2d 1368 (4th Cir. 1992).]
b. Factors Relating to the Content of the Recording
Regarding the contents of the recording, the proffering party must show that (1) the
recording is a correct rendition of the occurrence; (2) no changes, additions, or
deletions have been made; (3) the speakers are identified; and (4) there was no
impermissible inducement. [United States v. Branch, 970 F.2d 1368 (4th Cir. 1992).]
4. Internet and Email Evidence
Information sent in an email or posted on a website or in a chat room still must be
authenticated using traditional authentication principles. Questions such as who maintains
a website, when it was last modified, and whether there is potential for manipulation by
hackers may need to be answered.
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Example:
In a trial for attempting to entice a child to engage in unlawful sexual activity, the
prosecution authenticated printouts of internet chat-room conversations between the
defendant and a child by calling the child to testify that he printed out the convers ations
himself and that the printouts were accurate reflections of the conversations. [ United
States v. Lebowitz, 676 F.3d 1000 (11th Cir. 2012).]
Compare:
A defendant was charged with fraud against the US Postal Service for falsely attributing
hate mail to white supremacist groups. The defendant sought to introduce postings from
the websites of the white supremacist groups. The court ruled that the defendant did not
properly authenticate the postings by demonstrating that they were actually posted by
the groups and not by the defendant herself, a skilled computer user. [ United States v.
Jackson, 208 F.3d 633 (7th Cir. 2000).]
5. Chain of Custody
The chain of custody is the history of a piece of evidence, from the moment it was first
discovered until it is presented in court. The chain of custody tracks the condition and the
location of the evidence, as well as the custodians in possession of it. The party offering
the evidence bears the burden of establishing that the chain of custody is substantially
unbroken. Absent this showing, the court has the discretion to exclude the evidence.
However, even evidence with some break in the chain of custody m ay be admissible. For
example, in a trial for possession of drugs, the prosecution may try to authenticate drugs
seized from the defendant using a chain of custody. The defendant may try to
demonstrate that there are substantial gaps in the chain of custod y or that the drugs
were somehow altered since being in his possession. [Fed. R. Evid. 901(a); Chain of
Custody, Black’s Law Dictionary (11th ed. 2019).]
Examples:
(1) In a drug-trafficking case, the prosecution authenticated guns seized from the
defendant by establishing a chain of custody. The agent who initially seized the guns
testified that she took them to the police station and possessed them until a federal
agent came to take them. The federal agent then testified that he took the guns from the
police station and possessed them until he completed a property-inventory form on
which he listed the guns. [Adapted from United States v. Carlos Cruz, 352 F.3d 499 (1st
Cir. 2003).]
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(2) In a personal-injury action for electrocution by a defective light bulb, there was not a
perfect chain of custody. Instead, during a later search for the bulb, a broken light bulb
was found in a cabinet next to the accident site. Although there was suf ficient
authentication for admissibility, the jury could weigh the evidence to determine whether
the light bulb from the cabinet was the defective lightbulb that had caused the
electrocution. [Bruther v. Gen. Elec. Co., 818 F. Supp. 1238 (S.D. Ind. 1993).]
a. Self-Authenticating Evidence
Some evidence is self-authenticating and does not need to be further authenticated
by the proffering party to be admissible. Generally, this category of evidence consists
of documents that are not particularly susceptible to fraud or forgery . Evidence that is
self-authenticating includes:
• government documents that are sealed or signed and certified;
• foreign government documents;
• certified copies of public records;
• official publications;
• newspapers and periodicals;
• trademarks and trade inscriptions;
• acknowledged documents, such as those signed by a notary public;
• commercial paper documents;
• documents declared to be presumptively authentic under a federal statute; and
• certified business records of regularly conducted activity.
[Fed. R. Evid. 902.]
Example:
In a bank robbery case, the prosecution sought to introduce a Federal Deposit
Insurance Corporation (FDIC) certificate to prove that the bank was insured. The FDIC
certificate was self-authenticating. [United States v. Wingard, 522 F.2d 796 (4th Cir.
1975).]
Character and Related Concepts
Character evidence is evidence regarding a person’s mental and moral qualities. Character
evidence is generally not admissible to show that a person acted in conformity with that
character (i.e., propensity or proclivity evidence) because of the potential that a jury would
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make improper inferences from the evidence. However, it may be admissible for purposes
other than showing a person acted in conformance with that character, for example, to
impeach a witness, or, in a criminal case, to prove motive or opportunity. [ See Fed. R. Evid.
404(a), (b)(1); Conviction of Crime, Specific Instances of Conduct, Character for Truthfulness,
supra.]
1. Admissibility of Character Evidence in Criminal Cases
Rule 404(a) of the FRE defines limited exceptions for the use of character evidence in a
criminal case, sometimes referred to collectively as the mercy rule. Character evidence
may be admissible in a criminal case if the character trait is pertinent to the trial, and the
defendant places it in issue.
Example:
A defendant was charged with battery for allegedly attacking a man after the two of them
left a bar together. No one else witnessed the incident. At trial, the defendant and the
victim each testified that he had acted in self-defense. The defendant called his neighbor
as a witness to testify to the defendant’s reputation for truthfulness and for
peacefulness. Evidence of the defendant’s character for peacefulness was admissible
because it was pertinent to the crime charged. Evidence of the defendant’s chara cter for
truthfulness was not admissible because there was no indication that the defendant’s
character for truthfulness while testifying had been questioned.
a. Exception for Defendant’s Character in Criminal Cases
The defendant in a criminal trial may introduce evidence of her own character if it is
of a type that is pertinent to the charges against her. When this type of evidence is
introduced, the defendant opens the door, and the prosecution may rebut that
evidence. [Fed. R. Evid. 404(a)(2)(A).]
Example:
A defendant on trial for robbery claimed that he could not have committed the
robbery because he was babysitting his niece when the robbery occurred. At the
prosecution’s suggestion that he could have left his niece to commit the robbery, the
defendant testified that he was devoted to his niece and never left her alone. The
court interpreted this as opening the door to character evidence and allowed the
prosecution to introduce evidence of a knife fight the defendant had with his father to
rebut the defendant’s testimony that he was responsible and devoted to his family.
[United States v. Dahlin, 734 F.2d 393 (8th Cir. 1984).]
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b. Exception for Victim’s Character in Criminal Cases
Subject to Rule 412 of the FRE, which bars evidence regarding the victim’s previous
sexual conduct and predisposition in sexual-assault cases, the defendant may introduce
character evidence about the victim if it is of a type that is pertinent to the charges
against the defendant. Once introduced, the prosecution may rebut that evidence and
also introduce evidence of the same trait in the defendant, if applicable. [Fed. R. Evid.
404(a)(2)(B); United States v. Keiser, 57 F.3d 847 (9th Cir. 1995); see Past Sexual
Conduct of a Victim, infra.]
c. Exception for Victim’s Character in Homicide Cases
In homicide cases, the prosecution may introduce evidence about the victim’s
character for peacefulness if the defendant claims self-defense, in order to rebut the
defendant’s argument that the victim was the first aggressor. [Fed. R. Evid.
404(a)(2)(C).]
Example:
A defendant on trial for murder claimed self-defense. The defendant was able to
introduce evidence that the victim had an aggressive or violent character to help prove
that the victim acted aggressively or violently during the incident in question. In
response, the prosecution was permitted to introduce evidence of the victim’s
peacefulness and the defendant’s character for aggressiveness or violence.
2. Using Character Evidence to Impeach Witnesses in Civil and Criminal
Cases
Evidence of a witness’s character (including a criminal-defendant witness) is also
admissible in civil and criminal cases to impeach the witness. [Fed. R. Evid. 404(a)(3), 607 09; see Conviction of Crime, Specific Instances of Conduct, Character for Truthfulness,
supra.]
3. Methods of Proving Character
If character evidence is admissible, the method by which parties may prove that character
depends on (1) who is questioning the witness (i.e., whether the questioning occurs on
direct or cross-examination) and (2) whether the character or character trait is an
essential element of the charge, claim, or defense. There are three main methods by
which character can be proven: by reputation testimony, by opinion testimony, and by
specific instances of conduct. [Fed. R. Evid. 405.]
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a. Direct Examination–Reputation and Opinion
If evidence of a person’s character is admissible, it may be proved on direct
examination by testimony about the person’s reputation (if the witness is sufficiently
familiar with the person’s reputation in the person’s community) or testimony in the
form of an opinion (if the witness knows and is familiar with the person). During direct
examination, a party may not prove a witness’s character with specific instances of
conduct. [Fed. R. Evid. 405(a); see Character for Truthfulness, supra.]
b. Cross-Examination–Specific Instances of Conduct
If evidence of a person’s character is admissible, a party may ask a character witness
(i.e., a witness who has provided evidence of the person’s character during earlier
direct examination) about specific instances of the person’s conduct on crossexamination. An inquiry like this tests the character witness’s knowledge of the
person, while also testing the credibility of the character witness’s testimony about
the person’s character. The prior conduct must be something that the character
witness should have known about (for a character witness’s opinion testimony) or the
community should have known about (for a character witness’s reputation testimony).
Prior matters of an extremely personal or private nature may be outside the scope of
testing the character witness’s knowledge or credibility with respect to the person.
[Fed. R. Evid. 405(a).]
Example:
A defendant was charged with fraud for falsely overrepresenting her income on a
home-mortgage application. At trial, a defense witness testified that the defendant
had a reputation in the community for being honest. The prosecution obtained the
defendant’s college records, which showed that the defendant had been placed on
academic probation for stealing a final examination from a professor’s office. On
cross-examination, the prosecution intended to ask the defense witness whether the
witness had heard about the final examination theft. The question sought to test the
witness’s knowledge of the defendant’s reputation and the quality of the community.
If the witness answered that he had not heard of the theft, this answer would have
suggested that the witness was not aware of the news in the community.
Alternatively, if the witness answered that he had heard the news, the jury might have
concluded that the community had a low bar for honesty.
Compare:
A defendant was charged with disposing a firearm to a felon. The defendant called a
character witness to testify that he had a good reputation for truthfulness in the
community. On cross-examination, the prosecution should not be permitted to ask the
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character witness if he knew that the defendant had lied to a grand jury 25 years
earlier. Because grand-jury testimony is not subject to public disclosure, the
defendant’s community could not reasonably be expected to know about this prior act
of untruthfulness. [United States v. Monteleone, 77 F.3d 1086 (8th Cir. 1996).]
Extrinsic Evidence Not Permitted
The purpose of an inquiry into a prior bad act under cross-examination is to test
the character witness’s credibility by showing how much the witness does or does
not know about the person who is the subject of the character evidence.
Accordingly, a court will not allow the examining party to prove the prior bad act
with extrinsic evidence.
Example:
A police officer was charged with selling drugs. At trial, the defense called
character witnesses to testify to the police officer’s good character, opening the
door to rebuttal. Although the prosecution was permitted to ask the character
witnesses whether they knew that the police officer had previously accepted a
bribe, the prosecution was not permitted to introduce extrinsic evidence that the
bribe actually occurred. [Adapted from United States v. Glass, 709 F.2d 669 (11th
Cir. 1983).]
Good-Faith Basis Required to Ask about Prior Bad Acts
Although an offer of proof of a prior bad act is not allowed, the examining party
must have a good-faith basis in fact for asking about the prior bad act. The court
may require the examining party to lay the foundation for the inquiry outside the
presence of the jury. Without a good-faith basis for asking about the prior bad act,
the examining party could, in theory, ask about random bad acts that the
defendant may have possibly committed, hoping that one might have occ urred.
c. Character as an Essential Element
If a character trait is an essential element of the claim, charge, or defense, the trait
may be proved in a civil or criminal case by any method a party might use to prove any
element of its case. This includes introducing reputation or opinion testimony as well as
extrinsic evidence of specific instances of conduct (also called prior bad acts). In criminal
cases, the defendant does not have to open the door for the prosecution to introduce
character evidence if character is an essential element of the charge. [Fed. R. Evid.
405(b).]
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Example:
A defendant charged with solicitation claimed entrapment as a defense. Whether the
defendant was predisposed to committing the crime of solicitation is an essential
element of the defense. Therefore, the prosecution was permitted to introduce
evidence of prior instances when the defendant was convicted of solicitation in order
to counter his entrapment defense by proving that he was predisposed to commit the
crime.
Circumstances under Which Character Is an Essential Element
Character is rarely an essential element of a charge, claim, or defense. To
determine whether character is an essential element of a charge, claim, or defense,
the court must determine if character is an operative fact under the substantive
law that determines the parties’ rights and liabilities. The court will ask whether
proof, or a failure of proof, of the character trait will satisfy an element of the
charge, claim, or defense. If so, character is an essential element.
Claims Involving Character as an Essential Element
Charges or claims for which character is an essential element include negligent
entrustment, negligent hiring, child custody, and defamation.
Example:
A plaintiff sued a defendant for slander. At trial, the plaintiff showed that the
defendant had called her a cheater. A defense witness testified that he had been
the plaintiff’s longtime neighbor and that people in the community generally
referred to the plaintiff as a cheater. This testimony was admissible because, in
slander cases involving the plaintiff’s character, the plaintiff’s character is in issue
in two respects. First, proof of the plaintiff’s character will determine whether the
defendant was incorrect in his assessment of the plaintiff, and therefore, liable.
Second, the plaintiff must show that the statement damaged her. However, if the
plaintiff has a bad reputation, then her damages are limited. Therefore, in slander
cases, character evidence is relevant both to whether the plaintiff has a particular
character and to the damages suffered. Because character is in issue, it may be
proven by evidence of reputation, opinion, or specific acts.
Compare:
The CEO of a medical-technology start-up was charged with multiple counts of
investor fraud. At trial, the court permitted the CEO to call her former employer to
testify about the CEO’s reputation for honesty within her community. Over the
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government’s objection, the CEO then sought to elicit testimony from her former
employer that, on several occasions, the employer had entrusted the CEO with
large sums of money without incident. Good character may not be proven by
specific instances of conduct unless character is an essential element of the crime
or the defense. Here, because character was not an essential element of the crime
of fraud or its defense, it could not be proven by specific instances of conduct.
Therefore, the court did not admit the former employer’s additional testimony.
Extrinsic Evidence Permitted When Character Is an Essential Element
Because proof of character is permitted by any method used to show an element
of a claim or defense, extrinsic evidence of character (even of prior bad acts) is
permitted if character is an essential element. The prior bad acts are not being
used to show the defendant’s propensity for committing the act. Rather, they are
used only to prove the particular character trait at issue in the claim or defense.
[Fed. R. Evid. 405(b).]
4. Habit and Routine Practice
Habit is evidence of a person’s customs or standard response in a given, recurring situation.
Habit evidence is generally offered to demonstrate that a person acted in conformity with
that habit on a particular occasion. The more specific and more regular the conduct is, the
more likely a court will consider it a habit. [Fed. R. Evid. 406 advisory committee’s note.]
a. Habit versus Character
The difference between character evidence and habit evidence is that character is who
you are, and habit is what you do. It is not always the case that a person with a
particular character trait will act in accordance with that character trait ( e.g., a violent
person is not always violent). On the other hand, habit evidence is more probative,
because if some act is a person’s habit, it is more likely than not that the person acted
in accordance with that habit on a particular occasion ( e.g., a person who has a habit
of locking his doors at night will more likely than not have locked the doors on a
particular night). The more specific and more regular conduct is, the more likely a court
will consider it a habit versus a character trait. Similarly, the more reflexive or
automatic behavior is, the more likely the court will consider it a habit. [Fed. R. Evid.
406 advisory committee’s note.]
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Examples:
(1) A defendant was on trial for illegally transporting undocumented aliens. The
defendant, a member of the Coast Guard Auxiliary, sought to introduce evidence of
his Coast Guard training to show that he had a habit of taking the least
confrontational course of action in potentially dangerous situations. The court did not
allow the defendant to introduce this evidence, because the evidence of the training
was not sufficiently reflexive or specific to be habit evidence. [Adapted from United
States v. Angwin, 271 F.3d 786 (9th Cir. 2001).]
(2) A plaintiff was run over by a train owned by the defendant. The plaintiff sued. At
trial, the defendant posited that the plaintiff was drunk at the time he was run over
and sought to introduce evidence of the plaintiff’s four prior convictions for publ ic
intoxication. The court concluded that this evidence was not admissible, because four
convictions over three and one-half years were of insufficient regularity to rise to the
level of habit evidence. [Reyes v. Mo. Pac. R.R. Co., 589 F.2d 791 (5th Cir. 1979).]
Compare:
In a decedent’s estate’s lawsuit against a car company, the estate presented evidence
that the decedent always wore his seatbelt when driving or riding in a car. This habit
evidence was admissible to show that the decedent was wearing his seatbelt when the
accident occurred. [Babcock v. Gen. Motors Corp., 299 F.3d 60 (1st Cir. 2002).]
b. Routine Business Practices
Evidence of an organization’s routine practice is admissible to demonstrate that the
organization likely acted in accordance with that practice on a particular occasion. For
purposes of admitting evidence of routine business practices, courts define
organization broadly to include companies; businesses; and charitable, religious,
educational, governmental, or political organizations. [Fed. R. Evid. 406.]
Example:
A plaintiff sued a life-insurance company for denying the plaintiff’s claim. The plaintiff
introduced evidence that the insurance company routinely waived certain standard
conditions when issuing a life-insurance policy. This was admissible evidence of the
life-insurance company’s routine organizational practice. [Rosenburg v. Lincoln Am. Life
Ins. Co., 883 F.2d 1328 (7th Cir. 1989).]
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c. Methods of Proving Habit or Routine Business Practice
Both habit and routine practice may be proven by evidence of specific instances of
conduct or by opinion testimony. [United States v. Newman, 982 F.2d 665 (1st Cir.
1992).]
d. Corroboration Not Required
Habit evidence is admissible regardless of whether (1) it is corroborated or (2) there
was an eyewitness present. This is a change from the common-law rule that evidence
of a person’s habit or an organization’s routine practice could not be admitted unless
it was corroborated. [Fed. R. Evid. 406 advisory committee’s note.]
Example:
A motorist struck a pedestrian in a crosswalk, injuring her. At trial, one of the
motorist’s witnesses testified that he walked past the pedestrian no more than five
seconds before the incident and saw the pedestrian speaking, although she appeared
to be walking alone. The pedestrian testified that she talks on her mobile phone while
walking almost every day, and that she always uses headphones. This habit evidence
was admissible to prove that the pedestrian acted in conformity with that habit. Habit
evidence is admissible even if the only evidence of a habit is the person’s own
testimony.
5. Other Crimes, Acts, Transactions, and Events
Evidence of a crime, wrong, or other act (sometimes called prior bad acts) is not
admissible to prove a person’s character in order to show that the person acted in
conformity with that character. However, subject to Rule 403 of the FRE, evidence of
prior bad acts may be admissible for other purposes, for example, to show motive,
opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of
accident. [Fed. R. Evid. 404(b)(1).]
Examples:
(1) A defendant was charged with being a felon in possession of a firearm, which requires
proof that the defendant knowingly possessed the firearm. The prosecution was
permitted to introduce evidence of the defendant’s prior conviction for the same crime t o
prove the knowledge element. The evidence was not admitted to show that the
defendant had a propensity to be a felon in possession of firearms; rather, it was
admitted because a prior act involving the same knowledge decreases the likelihood that
the defendant lacked the requisite knowledge in committing the current offense. [ United
States v. Moran, 503 F.3d 1135 (10th Cir. 2007).]
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(2) A defendant was on trial for attempted fraud of an electronics store. The state alleged
that, at the store, the defendant purchased two wireless audio speakers, one for $200
and one for $40. Thereafter, the defendant switched the speakers’ packaging an d
attempted to return what purported to be the more expensive speaker. When the store
clerk opened the packaging, she discovered the packaging contained the cheaper speaker.
At trial the defendant denied having switched the speakers. On cross -examination, the
state asked the defendant whether he had been previously convicted twice for
misdemeanor fraud of a retailer by swapping cheaper products for more expensive ones
and returning them. Because the prior misdemeanor convictions were very similar to the
acts in dispute, they could be admitted to prove intent, knowledge, lack of accident, and
modus operandi.
a. Admissible in Civil and Criminal Cases
A party may introduce evidence of a crime, wrong, or other act in both criminal and
civil cases. Although far more common in criminal cases, this type of evidence is
sometimes offered in civil cases, particularly to prove a person’s intent, or for use in
discrimination, hostile workplace, harassment, fraud, and civil-rights cases.
b. Not Limited to Crimes
Although it is often used to admit evidence of other criminal conduct, Rule 404(b) of
the FRE is not limited to evidence of crimes. Rather, it includes evidence of other
wrongs and acts. [Fed. R. Evid. 404(b).]
c. Evidence of Subsequent Acts Admissible
Although it is frequently used to admit evidence of prior crimes, wrongs, or other acts,
Rule 404(b) of the FRE also admits evidence of subsequent acts. For example, a
criminal defendant’s subsequent threatening of a witness to the crime is a subsequent
wrongful act that may be used under Rule 404(b) to show the defendant’s knowledge
of her guilt. [Fed. R. Evid. 404(b).]
d. Court’s Admissibility Determination
In evaluating whether evidence of a prior or subsequent crime, wrong, or other act is
admissible, a court must determine that the evidence:
• is offered for a purpose other than propensity (i.e., not to show that a person acted in
conformance with a specific character trait);
• is relevant for that purpose; and
• is not, under Rule 403 of the FRE, substantially more unfairly prejudicial than probative.
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The court must also, on request, issue a limiting instruction. [Fed. R. Evid. 403, 404(b);
Huddleston v. United States, 485 U.S. 681 (1988).]
e. Facts Relevant in Evaluating Prior Acts Evidence under Rule 403
There is no established test for determining whether evidence of a prior or
subsequent crime, wrong, or other act is more prejudicial than probative under Rule
403 of the FRE. In making this determination, courts consider factors including:
• the strength of the evidence available to prove the other act,
• the proximity in time between the other act and the current case,
• the degree of similarity between the other act and the actions alleged in the current case,
• the offering party’s need for the other-act evidence,
• the risk that the jury will make an emotional decision or an improper propensity inference,
and
• the efficacy of a limiting instruction.
[United States v. Gomez, 763 F.3d 845 (7th Cir. 2014); United States v. Chapman, 692
F.3d 822 (7th Cir. 2012).]
f. Prosecutor’s Notice to Defense
Upon a request from the defense, a prosecutor must provide reasonable notice of the
general nature of any evidence of a crime, wrong, or other act that the prosecutor
intends to offer at trial. The prosecutor must provide this notice before trial, or, if
excused for good cause by the court, after trial. The main purpose of the notice
requirement is to prevent surprise and allow for pretrial resolution of any objection to
the admissibility of the evidence via, for example, a motion in limine. There is no
notice requirement in civil cases. [Fed. R. Evid. 404(b)(2); see Motion In Limine, supra.]
g. Relationship to Rule 608—Character Evidence
The admissibility of prior bad acts under Rule 404(b) of the FRE is distinct from the
admissibility of character evidence under Rule 608 of the FRE. Evidence under Rule
404(b) is admitted as substantive proof of a disputed issue (e.g., motive, opportunity, or
intent). In contrast, character evidence under Rule 608 is admitted only to impeach a
witness. [See Character for Truthfulness, supra.]
6. Prior Sexual Misconduct of a Defendant
Due to (1) the particularly heinous nature of sexual misconduct, (2) the notion that this
type of conduct is exceptionally probative of a propensity to commit the conduct again,
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and (3) the difficulty of proving this type of conduct, many of the limitations on the
admission of a defendant’s prior bad acts are not applicable to the defendant’s prior
sexual misconduct. Specifically, evidence of sexual assaults committed previously by the
defendant is admissible in criminal or civil cases directly involving sexual assault, and
evidence of acts of child molestation committed previously by the defendant is admissible
in criminal or civil cases directly involving child molestation. This evidence of misconduct
is admissible as evidence of any relevant matter even if the defendant does not open the
door. Unlike other character evidence, the jury may consider prior sexual misconduct as
evidence that the defendant has the propensity to commit the offense in question. The
three rules regarding prior sexual misconduct of a defendant operate identically. The only
differences between the rules are the prior act (sexual assault versus child molestation)
and the type of case (criminal versus civil) involved. [Fed. R. Evid. 413-15.]
a. Prior Sexual Assault Committed by Defendant Charged with Sexual
Assault
Prior sexual assaults committed by the defendant are admissible in cases in which the
defendant is charged with sexual assault. This rule is construed very narrowly. For
example, only prior sexual assaults are admissible under this rule, not similar behavior
that does not constitute sexual assault. [Fed. R. Evid. 413(a), (d).]
b. Prior Child Molestation Committed by a Defendant Charged with Child
Molestation
Prior acts of child molestation committed by the defendant are admissible in cases in
which the defendant is charged with child molestation. This rule is also construed very
narrowly. [Fed. R. Evid. 414(a).]
Note: Rule 414 of the FRE defines a child as someone under the age of 14. [Fed. R.
Evid. 414(d).]
c. Prior Sexual Misconduct in Civil Cases
The admissibility of a defendant’s prior acts of sexual assault and child molestation
extends to civil cases involving claims for relief based on sexual assault or child
molestation. [Fed. R. Evid. 415(a).]
d. Notice and Disclosure Requirement
If a party intends to introduce evidence of prior sexual misconduct in a civil or criminal
case, generally it must inform the defendant at least 15 days prior to the trial, or later
with the court’s permission for good cause. The notice must include witness
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statements or a summary of the expected testimony. [Fed. R. Evid. 413(b), 414(b),
415(b); United States v. Benais, 460 F.3d 1059 (8th Cir. 2006).]
e. Conviction Not Required
The defendant need only have committed the sexual misconduct; he need not have
been formally charged or convicted of the act. Courts apply a preponderance-of-theevidence standard to determine whether prior sexual misconduct is admissible absent
a conviction, meaning the evidence will be admitted if it is more likely than not that
the defendant committed the act. [See United States v. Mann, 193 F.3d 1172 (10th Cir.
1999).]
f. Methods of Proof
Unlike many other types of character evidence, evidence of a defendant’s past sexual
misconduct is not limited to reputation and opinion evidence. Rather, the defendant’s
past sexual misconduct may also be shown with specific instances of previous
misconduct. [Compare Fed. R. Evid. 405(a) (limiting proof of character to reputation
and opinion evidence on direct examination), with Fed. R. Evid. 413(a), 414(a), 415(a).]
g. Relationship to Rule 403
The rules for admitting evidence of a defendant’s prior sexual misconduct do not
entirely preempt Rule 403 of the FRE, which gives the court discretion to exclude
evidence having unfair prejudice that substantially outweighs the evidence’s probative
value.
Exclusion Rare under Rule 403
It is very rare that evidence of prior sexual assault or child molestation will be
excluded under Rule 403 of the FRE. With other character evidence, a court must
weigh the possibility that the jury will improperly use a prior bad act to determine
that the defendant has the propensity to commit the charged act. Under Rules
413-15 of the FRE, however, the court may allow the jury to make the inference
that the defendant has the propensity to commit sexual assault or child
molestation. In other words, the propensity inference is not an improper use of the
evidence under Rules 413-15. [See United States v. Rogers, 587 F.3d 816 (7th Cir.
2009).]
Rule 403 Considerations for Sexual Misconduct Evidence
A court assessing the admissibility of prior sexual assault or child molestation
under Rule 403 of the FRE may consider:
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• the amount of time between the prior incident and the trial,
• the similarity of the prior incident to the crime charged, and
• whether the defendant committed acts of sexual misconduct in between the prior
incident and the trial.
[See, e.g., Doe ex rel. Rudy-Glanzer v. Glanzer, 232 F.3d 1258 (9th Cir. 2000).]
Example:
A defendant charged with child molestation was previously convicted of child
molestation that occurred more than 20 years before the trial. Although the
evidence of the prior conviction was admissible under Rule 414, the court
excluded the prior conviction under Rule 403. Due to the amount of time that had
passed, the conviction’s probative value was low and was substantially outweighed
by a danger of unfair prejudice. [Adapted from United States v. Larson, 112 F.3d
600 (2d Cir. 1997).]
Compare:
A defendant charged with child molestation was previously convicted of child
molestation that occurred 16–20 years before the trial. The court properly
admitted evidence of the prior conviction. Although a significant amount of time
had passed since the conviction, the evidence passed Rule 403 scrutiny in part
because the conduct resulting in the prior conviction was very similar to the
events alleged in the current case. [Adapted from United States v. Larson, 112 F.3d
600 (2d Cir. 1997).]
Expert Testimony
Rule 702 of the FRE permits a witness qualified as an expert by knowledge, skill, experience,
training, or education to provide opinion testimony if (1) the expert’s specialized knowledge
will help the trier of fact understand the evidence or determine a fact in issue, (2) the
testimony is based on sufficient facts or data, (3) the testimony is the product of reliable
principles and methods, and (4) the expert has reliably applied the principles and methods to
the facts of the case. [Fed. R. Evid. 702(a)-(d).]
Examples:
(1) In a drug case in which the defendant was charged with manufacturing cocaine base, the
court permitted a police officer to testify as an expert witness for the prosecution on the
process of making cocaine base. The witness had specialized knowledge that an average juror
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did not possess, and the witness’s testimony was relevant to the charges against the
defendant. [United States v. Saulter, 60 F.3d 270 (7th Cir. 1995).]
(2) A couple was involved in an acrimonious divorce. The wife, who was seeking full custody
of the couple’s two children, accused the husband of being an unfit parent due to a mental health condition. At trial, the husband acknowledged that he had a persis tent mental-health
condition but asserted that the condition was well managed and that he had been mentally
stable for the last seven years. The husband also called his mental -health therapist to testify
that, in her opinion, the husband was mentally stable and was highly likely to remain so
provided he continued to adhere to his medication and therapy protocols. The therapist’s
testimony was admissible because it was a helpful opinion by a qualified expert.
Compare:
In a slip-and-fall case, the plaintiff, who was wearing high heels, walked around a sidewalk
grate, which contributed to her fall. The court did not permit the plaintiff’s expert witness to
testify that women wearing high heels tend to avoid walking on sid ewalk grates. This
testimony was not based on specialized knowledge but was well within the common
knowledge of an average juror. [See Scott v. Sears, Roebuck & Co., 789 F.2d 1052 (4th Cir.
1986).]
1. Qualifications of Witnesses
A party offering expert-witness testimony generally bears the burden of showing that the
expert is qualified. A party may qualify its expert witness and may do so on the basis of
knowledge, skill, experience, training, or education (whether formal or informal). An expert
witness is only qualified to testify as an expert in his designated area of expertise. [ See
Ancho v. Pentek Corp., 157 F.3d 512 (7th Cir. 1998).]
a. Formal Education and Training Not Required
A witness may be qualified as an expert even if the witness is without any formal
training or education in the relevant subject area. The term expert is not limited to
witnesses who hold a degree in a particular field of study or even to those who have
formal education of any kind. A witness may be qualified because of experience
gained outside a classroom. Experts may include homeowners, landowners, b usiness
owners, hobbyists, and those with significant experience in a particular vocation or
avocation. Any witness may qualify as an expert if she has sufficient knowledge, skill,
experience, training, or education in the pertinent subject area. [Fed. R. Evid. 702
advisory committee’s note.]
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b. Same Witness Providing Both Expert and Lay Testimony
The same witness may testify as both a lay witness (sometimes called a fact witness)
and an expert witness. There is no requirement that a witness be called exclusively as
a lay witness or exclusively as an expert witness. For example, an investigator in a
criminal case may testify as a lay witness to the events she witnessed in the case and
also be qualified to provide an expert opinion on an issue. [Fed. R. Evid. 702.]
Examples:
(1) A plaintiff sued a defendant for injuries the plaintiff received when the parties’
automobiles collided. Both motorists were driving alone, there were no other
witnesses, and an accident investigation failed to determine which of the motorists
was at fault. The defense offered testimony of a mechanic that he had inspected the
plaintiff’s vehicle a week before the collision and had determined that her brakes were
worn and in need of repair. The mechanic had ordered new parts for the plaintiff’s
vehicle, but the plaintiff had not returned the vehicle to the mechanic to complete the
repair. The mechanic’s testimony about the condition of the plaintiff’s brakes could be
admitted as a lay opinion rationally based on the mechanic’s personal perception or as
an expert opinion because the mechanic possessed the necessary technical knowledge
to be qualified as an expert.
(2) A district court permitted an investigating officer to provide lay testimony
regarding events the officer actually witnessed during the narcotics investigation in
question, as well as expert opinion testimony regarding common practices of drug
dealers. The officer could properly rely on his previous experiences investigating drug
crimes in providing expert testimony. Thus, the district court did not abuse its
discretion in allowing the officer to provide both lay testimony and expert testimony.
[United States v. Penny, 60 F.3d 1257 (7th Cir. 1995).]
2. Bases of Testimony
An expert’s testimony may be based on facts or data in the case that the expert
personally knows or of which the expert has been made aware. Unlike lay testimony,
expert testimony need not solely be based upon the expert’s personal knowledge or
firsthand observations. In general, an expert’s testimony may be based upon three
possible sources:
• the expert’s firsthand observations,
• facts or data provided to the expert in court, or
• facts or data given to the expert outside of court.
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The judge makes any necessary initial determinations, based on the preponderance of the
evidence, on the bases of an expert witness’s testimony under Rule 703 of the FRE. [Fed.
R. Evid. 703.]
a. Testimony about Opinion without First Stating the Facts or Data
Underlying the Opinion
Generally, an expert witness may state an opinion formed in reliance on facts or data
without first testifying to the underlying facts or data. However, the opposing party
may inquire into those facts or data on cross-examination. If an expert is asked about
the bases for an opinion on cross-examination, the expert must disclose them.
Although the FRE do not require it, in practice it might be useful for the party calling
the expert to adduce the underlying facts or data on direct examination. [Fed. R. Evid .
705.]
b. Testimony Based on Inadmissible Evidence
An expert may rely on inadmissible evidence to form his opinion testimony if experts in
the field generally would reasonably rely on that type of evidence. The goal of this
rule is to allow an expert to rely on sources on which he ordinarily would rely in his
professional work outside the courtroom. [See, e.g., Burns v. Progressive Cas. Ins. Co.,
2022 WL 827036 (E.D. Cal. 2022).
Circumstances Justifying Reliance on Inadmissible Evidence
To determine whether the inadmissible evidence is of the type an expert may rely
upon, a court may consider (1) the expert’s testimony, (2) other experts’ testimony,
(3) learned treatises, or (4) adjudicative facts subject to judicial notice.
Examples:
(1) In a civil case involving damage to property during shipment, the plaintiff’s
expert appraiser relied on hearsay statements regarding the value of comparable
property in forming his opinion on the value of the damaged property. Although
these statements would be inadmissible hearsay on their own, experts in the
relevant field frequently relied upon evidence of comparable sales, regardless of
how the evidence came to them (i.e., even if the appraiser heard about the sale
from someone else but had no personal knowledge of it). Therefore, the expert
witness could rely on the hearsay statements about comparable sales to form his
opinion testimony. [Adapted from Trepel v. Roadway Express, Inc., 194 F.3d 708 (6th
Cir. 1999).]
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(2) A plaintiff sued her employer, alleging that poor working conditions had caused
her to develop emphysema. At trial, the plaintiff’s medical expert testified to the
cause of the emphysema and stated that his opinion was based, in part, on
information in a letter the plaintiff’s personal physician had written to the
plaintiff’s employer explaining why the plaintiff had been absent from work. The
expert was permitted to rely on the letter, even though it was hearsay, to form his
opinion, provided that other experts in the field would reasonably rely on this type
of information. However, simply because the expert relied on the letter did not
permit its admission into evidence.
Compare:
In an action alleging that a railroad’s negligence resulted in a fire that destroyed
the plaintiff’s property, the district court properly excluded portions of an expert’s
testimony based on an inadmissible lab report. The lab report was the only
evidence that there was gasoline present in the soil. The expert planned to use the
lab report not as other experts in the field would use it, but as substantive
evidence of his ultimate conclusion that the fire was created by pouring gasoline
into the soil. The prejudice that would result from admission of the evidence would
be substantial. [Turner v. Burlington N. Santa Fe R.R. Co., 338 F.3d 1058 (9th Cir.
2003).]
Disclosure of Inadmissible Evidence as Basis of Expert Opinion to the Jury
An expert may not disclose inadmissible evidence to the jury unless its probative
value in helping the jury evaluate the expert’s opinion substantially outweighs its
prejudicial effect. This test tips the balance toward excluding the otherwise
inadmissible evidence. Note that the evidence is not being admitted for the truth
of any matter it asserts; its probative value is in its ability to help the jury evaluate
the expert’s opinion. If otherwise-inadmissible evidence is disclosed to the jury, the
opposing party is entitled to a limiting instruction. [Fed. R. Evid. 703; Trepel v.
Roadway Express, Inc., 194 F.3d 708 (6th Cir. 1999).]
c. Relationship between Rule 702 and Rule 703: Expert Witnesses
The rules regarding an expert witness’s testimony (Rule 702 of the FRE) and the bases
of that testimony (Rule 703 of the FRE) are related, but not redundant. For example,
an expert might use reliable methodology under Rule 702(c) to analyze data, some of
which is not a type reasonably relied upon by experts. Therefore, there would be an
issue with the basis for a portion of the expert’s opinion under Rule 703. The expert
may testify provided her testimony survives Rule 702 without any reliance on the data
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that may not form the basis for her opinion under Rule 703. [In re Paoli R.R. Yard PCB
Litig., 35 F.3d 717 (3d Cir. 1994).]
3. Ultimate-Issue Rule
An ultimate issue is a final question that must be decided by the trier of fact, such as
whether a defendant in a personal-injury action was negligent. At common law, witnesses
were prohibited from testifying on ultimate issues. The FRE abolished this so -called
ultimate-issue rule. Instead, the FRE take the general position that an opinion on an
ultimate issue, whether from a lay witness or an expert witness, is admissible if it is helpful
to the trier of fact. [Fed. R. Evid. 704(a) advisory committee’s note.]
Example:
A defendant was on trial for an assault involving “extreme physical pain” and “protracted
and obvious disfigurement.” [United States v. Two Eagle, 318 F.3d 785 (8th Cir. 2003).]
The prosecution’s medical-expert witness was permitted to testify that the injuries the
victim suffered included disfigurement and likely extreme physical pain.
a. Expert and Lay Opinion Testimony on an Ultimate Issue
A lay witness may also give an opinion on the ultimate issue in the case. Like all
opinion testimony from lay witnesses, a lay witness’s opinion on an ultimate issue
must be (1) rationally based on the witness’s perceptions; (2) helpful to the trier of
fact; and (3) not based upon any scientific, technical, or other specialized knowledge. Lay
witnesses may draw reasonable inferences from their own experiences, provided they
use a process of reasoning familiar in everyday life. [See Lay Opinions, supra.]
b. Relative Helpfulness of Expert and Lay Opinions on an Ultimate Issue
In practice, an expert opinion on an ultimate issue is admissible because the expert’s
specialized knowledge is helpful to the factfinder. In contrast, a lay witness’s opinion
on an ultimate issue is frequently not helpful to the trier of fact, because the jury (or
other trier of fact) is in just as good a position as the lay witness to form its own
opinion about the facts of the case to reach an opinion on the ultimate issue. [ See Fed.
R. Evid. 701(b), 702(a); Fed. R. Evid. 704(a) advisory committee’s note ; Lay Opinions,
supra.]
c. Exceptions for the Mental State of a Criminal Defendant
An expert opinion on the ultimate issue of whether a defendant in a criminal case had
the mental state required as an element of a charged crime or defense is inadmissible
under Rule 704(b) of the FRE. However, Rule 704(b) does not forbid a lay witness
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from opining on a criminal defendant’s mental state, if the requirements for lay opinion testimony are otherwise met. [Fed. R. Evid. 704(b); United States v. Goodman,
633 F.3d 963 (10th Cir. 2011); Lay Opinions, supra.]
Example:
A defendant was on trial for fraud. The trial judge barred the defendant’s psychiatric
expert witness from testifying that the defendant’s mental issues made it unlikely that
the defendant could form the mental state required for the crime. [Fed. R. Evid.
704(b); United States v. Bennett, 161 F.3d 171 (3d Cir. 1998).]
Compare:
A defendant was on trial for possession with intent to distribute heroin. At trial, an
investigating officer, testifying as an expert witness, opined that the large amount of
heroin the defendant possessed indicated that it would be used for distribution, rather
than for personal use. The officer did not testify about the defendant’s mental state.
Therefore, FRE 704(b) did not bar the officer’s testimony. [Fed. R. Evid. 704(b); United
States v. Draine, 26 F.4th 1178 (10th Cir. 2022).]
d. Hypothetical Questions about a Criminal Defendant’s Mental State
Although an expert witness may not testify that a defendant in a criminal case has or
does not have the mental state necessary to form an element of the charged crime or
defense, many courts allow parties to ask psychiatric expert witnesses hypothetical
questions about a mental condition and its causal relationship, generally, to a
hypothetical person’s actions. The admissibility of these lines of hypothetical
questioning can frequently hinge on the precise wording of the question. Questions
that directly track the wording of a statute defining an offense are inadmissible,
whereas questions that leave the jury to draw some inference independently (rather
than being told what conclusion to draw by the expert witness) are more likely to be
admissible. [Fed. R. Evid. 704(b); United States v. Goodman, 633 F.3d 963 (10th Cir.
2011).]
Example:
A defendant was on trial for bank robbery. The trial evidence demonstrated that the
defendant disguised himself before entering the bank. The defendant asserted a
temporary-insanity defense, claiming that he experienced a severe manic episode at
the time of the robbery. The prosecution called a psychiatric expert to rebut the
defense. The prosecution could ask the expert hypothetical questions about whether
someone experiencing a severe manic episode could have engaged in conduct similar
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to the defendant’s (e.g., pausing to put on a disguise). The expert was not asked to
opine on whether the defendant possessed the requisite mental state for the crime.
Rather, the testimony focused on whether conduct similar to that in evidence
resembled that of a hypothetical person suffering a severe manic episode. Any
necessary inference about the defendant’s ultimate mental state was left to the jury.
[United States v. Levine, 80 F.3d 129 (5th Cir. 1996).]
4. Reliability and Relevancy
A trial judge serves an important gatekeeper function in ensuring that admitted expert
testimony is shown to be both reliable and relevant under Rule 702 of the FRE. Three
landmark cases have established the framework for evaluating expert testimony in federal
courts: Daubert v. Merrell Dow Pharmaceuticals, Inc., General Electric Co. v. Joiner, and
Kumho Tire Co., Ltd. v. Carmichael. Rule 702 was amended to codify Daubert and Kumho
in 2000. [See Fed. R. Evid. 702(a)-(d); Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579
(1993); Gen. Elec. Co. v. Joiner, 522 U.S. 136 (1997), and Kumho Tire Co., Ltd. v.
Carmichael, 526 U.S. 137 (1999).]
a. Judge’s Role as Gatekeeper
In Daubert, the United States Supreme Court held that if a party seeks to introduce
expert testimony based on purportedly scientific knowledge, the judge must make an
initial determination, using a preponderance-of-the-evidence standard, that the
evidence is (1) reliable; (2) relevant; and (3) not unfairly prejudicial, confusing, or
misleading. The Daubert Court concluded that given how much weight a jury generally
gives to expert testimony, it is not proper to refer to a jury questions about the
testimony’s reliability. [Fed. R. Evid. 403, 702; Daubert v. Merrell Dow Pharm., Inc., 509
U.S. 579 (1993).]
b. Daubert Factors
To assist in determining the reliability of scientific expert testimony, the Daubert Court
established a flexible test consisting of five nonexclusive factors trial courts should
consider:
• the testability of the technique/theory;
• peer review or publication, if any, of the technique/theory;
• rate of error;
• the existence and maintenance of standards and controls, and
• the degree of general acceptance of the technique/theory in the scientific community.
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Not all factors will necessarily apply in a given case, and other factors not specifically
named may prove to be helpful in evaluating the reliability of expert testimony. It is
the judge, in her gatekeeping role, who determines which factors to apply in a dmitting
or excluding expert testimony. In sum, the goal of the Daubert standard is to ensure
that experts, in their testimony, “adhere to the same standards of intellectual rigor
that are demanded in their professional work.” [Rosen v. Ciba-Geigy Corp., 78 F.3d 316,
318 (7th Cir. 1996); see also Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).]
c. FRE Superseded Frye’s General-Acceptance Test
Prior to Daubert, the admissibility of expert testimony in federal courts was controlled
by the standard announced in Frye v. United States: whether the expert’s test,
technique, or other methodology had gained general acceptance in the particular field
to which it belonged. Daubert concluded that the FRE superseded Frye’s generalacceptance test. The general acceptance in the field (or lack thereof) remains a factor
in the Daubert analysis, but it is not the only factor. The Frye standard remains
relevant because some, but not all, states have adopted Daubert. Some states,
including California and Illinois, continue to apply Frye; however, other states apply
Frye but also incorporate other Daubert factors into admissibility determinations. Still
other states have developed their own tests entirely. [ Daubert v. Merrell Dow Pharm.,
Inc., 509 U.S. 579 (1993); Frye v. United States, 293 F. 1013 (1923); Alice B. Lustre,
Post-Daubert Standards for Admissibility of Scientific and Other Expert Evidence in State
Courts, 90 A.L.R. 5th 453 (2001).]
d. Abuse-of-Discretion Review for Decisions on the Admissibility of
Expert Testimony
The Court concluded in General Electric Co. v. Joiner that a trial court’s decision to
admit or exclude expert testimony under Daubert is reviewable for an abuse of
discretion. [Gen. Elec. Co. v. Joiner, 522 U.S. 136 (1997).]
e. Daubert Applicable to All Expert Testimony, Not Just Scientific
Evidence
Although Daubert initially focused on the reliability of scientific knowledge under Rule
702 of the FRE, the Court later concluded that the gatekeeping function applied to all
expert testimony based not only on scientific, but also on technical or other
specialized knowledge. [Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999).]
f. Determining the Relevancy, or Fit, of Expert Testimony
In addition to ensuring that expert testimony is reliable, a judge must also determine
that expert testimony is relevant, necessary, and appropriately limited. Relevance in
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this context is often called fit, because there must be a fit between the expert’s
testimony and the disputed facts in the case. The testimony is necessary if it addresses
information beyond common knowledge or experience. Testimony is appropriately
limited if it does not undermine the power of the judge and jury to decide the law, the
weight of evidence, or the credibility of witnesses. The standard for admissible expert
evidence is whether the evidence contains knowledge that “will help the trier of fact
to understand the evidence or to determine a fact in issue.” [Fed. R. Evid. 702.] This is
a low standard for admissibility, but it is higher than the standard for relevant
evidence.
g. Procedures for Determining the Reliability of Expert Testimony
A court may opt to hold a Daubert hearing to explore the reliability and relevancy of
an expert’s testimony. However, hearings are not required. [ United States v. Williams,
506 F.3d 151 (2d Cir. 2007).]
h. Credibility of an Expert Witness
Although Daubert established the judge as a gatekeeper for determining the reliability
of an expert witness’s testimony, an expert’s credibility is still properly determined by
the jury.
5. Proper Subject Matter for Expert Testimony
A trial judge decides whether a topic is appropriate for expert testimony. An expert may
testify on any topic, if the topic (1) involves scientific, technical, or other specialized
knowledge and (2) helps the trier of fact understand the evidence or determine a fact at
issue. As a result of these broad guidelines, experts may testify on innumerable topics
and in almost every available cause of action, crime, and defense. [Fed. R. Evid. 104(a),
702.]
a. Legal Experts
The opinion of a legal expert may be admissible, depending on how the offering party
plans to use it. For example, legal-expert testimony might be offered in a case
involving legal-malpractice claims. In contrast, legal experts may not provide admissible
testimony on the law governing the case. This type of testimony could confuse or
mislead a jury (and therefore not be helpful) when the judge instructs the jury on the
applicable law. [Fed. R. Evid. 702; United States v. Kellington, 217 F.3d 1084 (9th Cir.
2000) (permitting legal-expert testimony on a lawyer’s ethical obligations in a case
prosecuting a lawyer for alleged misconduct); United States v. Sinclair, 74 F.3d 753
(7th Cir. 1996) (noting potential for juror confusion posed by experts on the law).]
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b. Expert Opinions on Credibility Usually Inadmissible
Expert opinions on the credibility of other witnesses are generally inadmissible. Under
Rule 702 of the FRE, an expert’s opinion that someone was lying or telling the truth is
not helpful to the jury, because generally the jury and the expert are equally situated
to evaluate witness credibility. [See Fed. R. Evid. 702(a).]
6. Real, Demonstrative, and Experimental Evidence
In addition to hearing testimony from expert and lay witnesses, a factfinder may consider
three main types of evidence: real evidence, demonstrative evidence, and experimental
evidence.
a. Real Evidence
Real evidence is any physical evidence, such as a document or an object, that was
involved in the controversy and usually existed before the controversy arose.
Examples of Real Evidence
Some examples of real evidence include a gun allegedly used as a murder weapon,
the drugs confiscated from a defendant, or the object that caused a plaintiff’s
injury.
Admissibility of Real Evidence
Real evidence is subject to all the rules governing admission of evidence, such as
the requirements of authentication and that the evidence is not substantially more
prejudicial than probative. Real evidence is admissible upon its identification that it
is the object at issue in the case. An offering party identifies real evidence either
by (1) establishing that it is readily identifiable or (2) that there was an unbroken
chain of custody. If the condition of real evidence is material, an offering party
must also show that the evidence is in substantially the same condition as it was at
the time of the event at issue. [United States v. Smith, 481 F.3d 259 (5th Cir.
2007); 22 Charles Alan Wright, Arthur R. Miller & Victor James Gold, Federal
Practice and Procedure Evidence § 5163 (3d ed. & Supp. 2022); Authentication and
Identification, supra.]
1)
Readily Identifiable Real Evidence
Real evidence with distinctive characteristics, e.g., an item with a serial number,
is readily identifiable. An offering party need not establish a chain of custody
for readily identifiable real evidence. Instead, the offering party may
authenticate real evidence with distinctive characteristics with testim ony from
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a witness with personal knowledge who recognizes the item. [Fed. R. Evid.
901(b)(4).]
2)
Establishing a Chain of Custody for Real Evidence
An offering party may also identify real evidence by proving the object’s chain
of custody. Through the testimony of custodians, proof of chain of custody
establishes that the evidence was not altered or exchanged between the time
when the parties do not dispute the location and condition of the real
evidence and the time when the evidence is offered at trial.
3)
Proof of Chain of Custody Sometimes Required
Proof of chain of custody is required if, for example, the evidence is not readily
identifiable because it has no unique identifying characteristics ( i.e., because
the evidence is fungible). Frequently, proper handling of evidence by securely
storing and labeling it can make fungible evidence readily identifiable. For
example, drug samples seized from a crime scene may not be readily
identifiable as those seized at a particular location (because they resemble any
drugs seized from any location), but the drug samples can be made readily
identifiable if stored in labeled evidence containers. However, if real evidence
is relevant due to laboratory testing, police markings at the scene would not lay
a sufficient foundation. Police markings would show that the evidence was the
evidence seized at the scene, but chain of custody is required to show that the
evidence seized at the scene was the same as that tested at the lab. Finally, if
the condition, and not merely the identity, of the real evidence is relevant , chain
of custody may be required to show that the evidence was not altered during
police custody. [Fed. R. Evid. 901(b)(4); United States v. Smith, 481 F.3d 259
(5th Cir. 2007) (concluding that a police officer authenticated drugs seized
from the criminal defendant’s vehicle by testifying that he placed them in a
paper bag at the police station and sealed the bag, writing his name and initials
over the seal); United States v. Ladd, 885 F.2d 954 (1st Cir. 1989) (concluding
that there was no competent proof to show that sample extracted from corpse
was the same sample the lab tested).]
b. Demonstrative Evidence
Demonstrative or illustrative evidence is any physical evidence that was not involved in
the controversy but instead is used to illustrate or explain the testimony of a lay or
expert witness. In contrast to real evidence, demonstrative evidence did not exist
before the controversy arose. [22 Charles Alan Wright, Arthur R. Miller & Victor
James Gold, Federal Practice and Procedure Evidence § 5174 (3d ed. & Supp. 2022).]
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Examples of Demonstrative or Experimental Evidence
Demonstrative evidence could include models (e.g., a model of the crime scene),
illustrations (e.g., a hand-drawn map of the intersection where an accident
occurred), physical objects (e.g., a knife that is similar to the alleged murder
weapon), or other types of evidence.
Admissibility of Demonstrative Evidence
Courts vary on the admissibility of demonstrative evidence. If a court does admit
demonstrative evidence, the proponent must show that the evidence is a fair
depiction or reasonable facsimile of the actual object. Demonstrative evidence must
also be relevant, may not be substantially more prejudicial than probative, and is
subject to the court’s control. [See, e.g., United States v. Stewart-Carrasquillo, 997
F.3d 408 (1st Cir. 2021) (holding the circuit’s substantial-similarity test for the
admission of demonstrative evidence in civil actions applies to criminal
prosecutions).]
c. Experimental Evidence
Expert testimony is frequently based upon experiments, or experimental evidence. The
experiments may be conducted outside or inside the courtroom. For example, an
expert might conduct out-of-court experiments to recreate the circumstances under
which an injury occurred in an attempt to ascribe fault in a negligence case.
Experimental evidence is admissible if the experiment occurred under substantially
similar circumstances as those involved in the case. However, perfect identity between
the experimental conditions and actual conditions is not required. [22 Charles Alan
Wright, Arthur R. Miller & Victor James Gold, Federal Practice and Procedure Evidence §
5171.2 (3d ed. & Supp. 2022).]
Example:
In a trial concerning insurance coverage for allegedly stolen Persian rugs, the court
permitted the plaintiff rug-seller to show a videotaped reenactment of the burglary in
which the reenactors were testing how long the theft could have taken. The plaintif f
used the videotaped reenactment to show that the rugs’ theft could have occurred in
the time that elapsed between the security alarm sounding and the first officer’s
arrival on the scene. The reenacted burglary scene in the videotape was substantially
similar to the actual scene. Any differences between the two, such as the alleged
placement of broken glass, went to the credibility of the video reenactment, which
was an issue for the jury. [Adapted from Persian Galleries, Inc. v. Transcontinental Ins.
Co., 38 F.3d 253 (6th Cir. 1994).]
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III. Privileges and Other Policy Exclusions
A number of privileges and policy exclusions prevent certain information from being discoverable
or admissible in a proceeding. A privilege is a special legal right, exemption, or immunity giving
someone the legal freedom to do or refrain from doing a given act. For example, a testimonial
privilege grants a witness the right not to disclose matters within the witness’s knowledge. Other
privileges may even bar information or communication from being discoverable. Understanding
the policies that make nondisclosure of information more favorable than its use in a proceeding
will also help in understanding how the privilege or policy exclusion applies. [Fed. R. Evid. 501;
Privilege, Black’s Law Dictionary (11th ed. 2019).]
Privilege Issue-Spotting
Privileges arise routinely in both transactional and litigation matters. In evaluating a privilege
question, lawyers should pay attention to issues such as:
• the source of the governing law (i.e., whether state or federal law defines the privilege);
• the applicability or scope of the privilege (i.e., the items and relationships to which it applies);
• the holder of the privilege (i.e., who has standing to assert the privilege and the concomitant
burden of proving the privilege’s applicability);
• whether any exception to the privilege applies; and
• whether the holder of the privilege has waived it and the scope of any resulting waiver.
Source of Applicable Privilege Law
The FRE do not enumerate all privileges. However, Rule 501 of the FRE explicitly states that
the common law governs claims of privilege, unless the privilege is controlled by the US
Constitution, a federal statute, or a United States Supreme Court rule. Under the Erie
doctrine, federal courts must apply state law regarding evidentiary privileges in civil cases in
which state law supplies the rule of decision. The federal courts recognize the following
privileges under federal common law:
• spousal immunity and marital communications,
• attorney-client communications and work product,
• communications between patients and psychotherapists and clinical social workers, and
• a clergy-penitent privilege.
The federal courts also recognize qualified or limited privileges for trade secrets, state secrets,
political votes, informer’s identity, and journalists’ sources. Other privileges, such as the
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physician-patient privilege or the journalist privilege, may be recognized by state courts as a
matter of state law. [Fed. R. Evid. 501 advisory committee’s note.]
Spousal Immunity and Marital Communications
There are two types of marital privileges that can overlap: spousal immunity and marital
communications. The spousal-immunity privilege is intended to protect the harmony of
marriages by not forcing a person to testify against his or her spouse in a criminal case. The
marital-communications privilege is intended to foster healthy communications and full
disclosure between spouses. Federal courts recognize both privileges as a matter of federal
common law. States may define the privileges in common law or by statute.
1. Spousal-Immunity Privilege
A person claiming the spousal-immunity privilege may not be required to testify against
his or her spouse in a criminal case. [Wolfe v. United States, 291 U.S. 7 (1934).]
a. Relationships to Which Spousal Immunity Applies
The spousal-immunity privilege only applies to persons in an active marriage during
trial; it does not apply to divorced or permanently separated couples. Once the
marriage ends, the privilege also ends. The privilege also does not apply if the primary
purpose of the marriage was to establish the privilege, or the marriage was otherwise
a sham. [Lutwak v. United States, 344 U.S. 604 (1953); United States v. Mathis, 559
F.2d 294 (5th Cir. 1977).]
b. Scope of Spousal-Immunity Privilege
The spousal-immunity privilege is comprehensive, in that it excuses a person from
testifying against his or her spouse on all matters, including communications and
actions, whether they occurred during the marriage or were confidential. For example,
if a criminal defendant marries his spouse after committing a crime but before the
trial, the spouse is immune from being called to testify at trial, even for the events
that occurred before the marriage. [United States v. Lofton, 957 F.2d 476 (7th Cir.
1992).]
Example:
A defendant was charged with criminal trespass and theft arising out of the burglary
of a federal scientific-research facility. At trial, the principal issue was the
perpetrator’s identity. The government called the defendant’s wife to testify about the
clothing her husband had been wearing when he left their house on the day of the
incident. The government believed that the wife’s description would match the
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eyewitnesses’ description of the perpetrator. Both the defendant and his wife
objected to the wife testifying against the defendant. Because the parties were in an
active marriage and the husband was a defendant in a criminal case, the spousaltestimonial privilege applied, and the court did not compel the wife to testify.
c. Criminal Cases in Which Spousal Immunity Does Not Apply
The spousal-immunity privilege does not apply if the spouses were coconspirators in a
crime. The privilege also does not apply if one spouse is charged with a crime against
the other spouse, the marital property, or a child of either spouse. [ United States v.
Bahe, 128 F.3d 1440 (10th Cir. 1997); United States v. Clark, 712 F.2d 299 (7th Cir.
1983).]
d. Waiver of Spousal Immunity
In cases arising under federal law, the witness-spouse holds the spousal-immunity
privilege. Therefore, the witness-spouse may waive the privilege if he or she chooses
to testify against his or her spouse. The defendant-spouse may not prevent the
witness-spouse from waiving the privilege by testifying. The United States Supreme
Court has recognized that if one spouse has chosen to testify against the other, this
reflects a state of disrepair in the marriage such that applying the privilege would be
more likely to frustrate the interests of justice than to serve the privilege’s intended
purpose of preserving marital harmony. [Trammel v. United States, 445 U.S. 40 (1980).]
2. Marital-Communications Privilege
A person claiming the marital-communications privilege may not be required to testify
regarding confidential communications the person had with his or her spouse while they
were married. Unlike the spousal-immunity privilege, this privilege applies in both criminal
and civil cases.
a. Relationships to Which the Marital-Communications Privilege Applies
Unlike the spousal-immunity privilege, the marital-communications privilege remains in
place even after divorce, meaning that confidential communications made during a
valid marriage remain confidential even after the relationship ends. Communications
made after ex-spouses are permanently separated or the marriage otherwise ends are
not protected. [United States v. Miller, 588 F.3d 897 (5th Cir. 2009).]
b. Scope of Marital-Communications Privilege
The privilege extends to communications between spouses, provided the
communications are confidential and made during a valid marriage.
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Confidential Communications
A confidential communication is one expressed privately between the married
spouses and not in the presence of, or likely to be overheard by, third parties.
Communications made outside the presence of third parties are presumptively
confidential. [United States v. Hamilton, 701 F.3d 404 (4th Cir. 2012); United States
v. Lea, 249 F.3d 632 (7th Cir. 2001).]
Example:
A district court denied a criminal-defendant husband’s motion to exclude a draft of
a letter under the marital-communications privilege. Although the marriage was
troubled and experienced long periods during which the spouses lived separately,
the marriage was valid at the time the letter was drafted. However, there was no
evidence that the husband ever intended to send the draft letter to his wife.
Therefore, the draft letter was not a communication within the scope of the
privilege. [United States v. Pugh, 162 F. Supp. 3d 97 (E.D.N.Y. 2016).]
Words, Acts, and Observations
Jurisdictions vary on whether the privilege protects only words, or if it also
protects acts. Some jurisdictions include within the privilege not only words, but
also acts intended to be communications. Courts have also concluded that the
privilege protects matters learned by observing a spouse if the acts observed were
confidential in nature or would not otherwise have been engaged in in the
presence of others if not for the marital relationship. [See, e.g., United States v. Vo,
413 F.3d 1010 (9th Cir. 2005) (opining that the privilege includes communications
and acts intended as communications); State v. Godbey, 792 S.E.2d 820 (N.C. Ct.
App. 2016) (observing that the privilege under North Carolina law includes
communications, acts intended as communications, and the types of acts induced
by a marital relationship).]
c. Cases in Which the Marital-Communications Privilege Does Not Apply
The marital-communications privilege applies both in civil and criminal cases in which
federal law supplies the rules of decision. However, marital communications are not
privileged in (1) civil suits between spouses, including divorce and custody cases; (2)
proceedings in which one spouse is charged with a crime or tort against the other spouse
or against children in the household; and (3) situations in which spouses jointly
participate in criminal acts.
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d. No Unilateral Waiver of Marital-Communications Privilege
Voluntary disclosure of a confidential communication waives the privilege, as does the
failure to object at trial to the disclosure of a privileged communication. The privilege
may be invoked by either spouse, meaning that even if one spouse is willing to testify
about confidential marital communications, the other spouse may invoke the privilege
to prevent the testimony. [See, e.g., United States v. Pugh, 162 F. Supp. 3d 97 (E.D.N.Y.
2016).]
Example:
A husband’s intent to disclose a draft letter to a translator waived any claim of marital communications privilege. The translator was a third party, and voluntary disclosure of
marital communications to third parties waives or destroys any claim of marita lcommunications privilege. [United States v. Pugh, 162 F. Supp. 3d 97 (E.D.N.Y. 2016).]
3. No Parent-Child Privilege
The federal courts and most state courts have refused to recognize a parent-child
privilege, on the grounds that this type of privilege and the accompanying confidentiality
are not necessary to a successful parent-child relationship. [In re Grand Jury, 103 F.3d
1140 (3d Cir. 1997); 81 Am. Jur. 2d Witnesses § 491, Westlaw (database updated June
2022).]
Attorney-Client Privilege and Work-Product Doctrine
The attorney-client privilege and work-product doctrine can provide overlapping protections
but serve distinct purposes. The attorney-client privilege protects communications between
clients and their lawyers in all legal settings to promote full disclosure and effective
representation. The work-product doctrine protects materials prepared in anticipation of
litigation or trial to protect the mental processes of lawyers and promote a fair adversarial
system.
1. Attorney-Client Privilege
The attorney-client privilege protects communications between a client and an attorney if
the communications were (1) intended to be, and kept, confidential, and (2) made for the
purpose of obtaining or providing legal services . The policy behind the attorney-client
privilege is to promote the rendering of legal services to clients. By protecting
confidential communications, the privilege seeks to promote free and open communication
between the lawyer and the client, thus allowing the lawyer to effectively represent the
client. Furthermore, the privilege is meant to allay putative clients’ fear that if they seek
legal representation, what they say to their lawyers may eventually be u sed against them.
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With the exception of waiver issues, which are addressed in Rule 502 of the FRE, the
attorney-client privilege in federal practice is a matter of federal common law. [Fed. R.
Evid. 502.]
a. Relationships in Which the Attorney-Client Privilege Applies
The attorney-client privilege only applies to legal representation; it does not apply if a
person attempts to retain a lawyer for something that a nonlawyer could do. For
example, if a lawyer acts merely as a messenger or conduit for information to or from
the client, the privilege does not attach.
Examples:
(1) Telephone conversations between a person and a lawyer were not protected by
the attorney-client privilege, because the predominant purpose of the calls was to
engage in friendly conversation. The nonlawyer participant on the calls who asserted
the privilege could not establish that the calls were made for legal advice. [ United
States v. Salyer, 853 F. Supp. 2d 1014 (E.D. Cal. 2012).]
(2) Communications about lobbying efforts and other matters of political strategy
were not protected by the attorney-client privilege. Although the lawyer involved in
the communications provided helpful advice, the advice was not legal in nature. [ In re
Grand Jury Subpoenas, 179 F. Supp. 2d 270 (S.D.N.Y. 2001).]
Attorneys
For purposes of the attorney-client privilege, an attorney is any person licensed to
practice law in any state or nation, or any person the client reasonably believes is
so authorized to practice.
Necessary Agents
The attorney-client privilege extends to the attorney’s nonattorney agents, e.g.,
paralegals, private investigators, and doctors, who are necessary to effectuate the
underlying legal representation. Communications involving these agents will also
be privileged if they meet the other requirements for the attorney-client privilege
to apply. Similarly, the presence of these agents while a client is consulting her
lawyer will not undermine a privilege claim on the grounds that the communication
was not confidential. For example, when a doctor examines a client in anticipation
of litigation, rather than for treatment purposes, the exam is privileged on the basis
of the attorney-client privilege, rather than any doctor-patient privilege.
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Corporate and Organizational Clients
A client may be either an individual or an organization. In the corporate context,
the attorney-client privilege still requires that communication with the attorney be
made (1) in the lawyer’s capacity as the corporation’s attorney, (2) for the purpose
of obtaining legal advice for the corporation, and (3) with the intent that the
communication be confidential when made and kept confidential. Issues frequently
arise regarding which employees in an organization might have privileged
communications with the corporation’s lawyer. As interpreted under federal
common law, the attorney-client privilege is not limited to employees at a
particular level within the organization (the so-called control-group theory of
corporate attorney-client privilege). Rather, federal courts examine a number of
factors, including:
• whether both the employee and the lawyer acted at the behest of the corporation in
communicating;
• whether the employee knew that the communication was made to enable the
corporation to obtain legal advice; and
• whether the communication concerned matters within the employee’s corporate
duties.
[Upjohn Co. v. United States, 449 U.S. 383 (1981).]
Example:
The Internal Revenue Service audited a corporation for alleged illegal payments.
The corporation’s general counsel sent questionnaires to employees seeking any
information the employees had regarding the challenged payments. The
questionnaires were protected by the attorney-client privilege, even though the
respondents were at a lower level within the corporation (i.e., not within the group
of employees controlling the corporation). Employees responded to the
questionnaires to enable the corporation’s general counsel to give sound and
informed legal advice to the corporation. The employees knew that they were
providing their responses to the company’s general counsel and that the
information was to be used in a legal investigation. [Upjohn Co. v. United States,
449 U.S. 383 (1981).]
b. Scope of the Attorney-Client Privilege
The attorney-client privilege applies only to communications that the client reasonably
believes are and will remain confidential. Generally, this means that the privilege lapses
when communications are (1) made to a third party who is not the attorney or a
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necessary agent, or (2) overheard by a third party who is not the attorney or a
necessary agent, under circumstances in which the client’s actions are inconsistent
with an intention that the communications remain confidential.
Example:
An incarcerated criminal defendant made calls using the prison telephone. The
defendant knew that calls made on prison telephones were recorded and monitored.
Therefore, the attorney-client privilege did not protect communications made during
the calls to the defendant’s attorney (via the defendant’s sister) regarding the
defendant’s desire to enter a plea agreement. Because the defendant was aware that
the Bureau of Prisons was recording the call, the defendant could not show that the
communications were intended to be, and in fact kept, confidential. The defendant
could have taken reasonable steps to ensure that his communications were
confidential, for example, by telling his sister over the phone that he had an important
message for his attorney without revealing the substance of the message. [United
States v. Mejia, 655 F.3d 126 (2d Cir. 2011).]
Compare:
A defendant and a codefendant were charged with odometer tampering. Before trial,
the codefendant and his attorney offered to cooperate with the government and
provide it with evidence that would strengthen its case against the defendant, in
exchange for the government’s agreement to recommend that the defendant receive a
lenient sentence. The government refused the offer. The next day, the codefendant
unexpectedly died. At trial, the government called the codefendant’s attorney and
asked her what the codefendant had told her about the defendant. The government
was seeking disclosure of a confidential communication between the codefendant and
his attorney, which was protected by the attorney-client privilege. Therefore, the
attorney’s testimony was not admissible. Had the codefendant disclosed the
information to the government, as his offer promised, the disclosure would have
waived the attorney-client privilege as to any communications the codefendant
previously made to his attorney.
Form of Communications
Confidential communications can take any form, oral or written. However, the
mere transmission of information to an attorney does not automatically render the
communication privileged. For example, a person may not make all of his emails
privileged by copying his attorney on them.
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Common-Interest Doctrine
Under the common-interest doctrine, the privilege may still apply to confidential
communications shared with a third party if the third party and the client share a
common legal interest—for example, alleged coconspirators who are tried
separately or two spouses who hire a lawyer to draft an estate plan—and agree to
jointly pursue that interest. For the common-interest doctrine to apply, the
agreement to jointly pursue the common interest must be made before the
communication; the doctrine does not apply retroactively. [United States v.
McPartlin, 595 F.2d 1321 (7th Cir. 1979).]
Information Not Shielded by the Attorney-Client Privilege
The attorney-client privilege protects only communications, not the facts
underlying those communications. The attorney-client privilege generally does not
shield the client’s identity, the fact that the attorney has been hired by the client,
and the client’s legal-fee arrangements with the attorney. [Dole v. Milonas, 889 F.2d
885 (9th Cir. 1989).]
Examples:
(1) The Internal Revenue Service audited a corporation for alleged illegal payments.
The corporation’s general counsel sent questionnaires to the corporation’s
employees seeking any information the employees had regarding the challenged
payments. The questionnaires were protected by the attorney-client privilege
because the employees responded to the questionnaires to enable the
corporation’s general counsel to give sound and informed legal advice to the
corporation, and the employees knew that they were providing their responses to
the company’s general counsel for use in a legal investigation. However, even
though the questionnaires were protected, the facts contained within the
questionnaires were not protected, and the prosecution could elicit those fact s by
questioning the employees directly. [Upjohn Co. v. United States, 449 U.S. 383
(1981).]
(2) A defendant was on trial in federal court for income tax fraud. The government,
seeking to establish the defendant’s income by showing her expenditures,
subpoenaed the defendant’s attorney to produce records disclosing only how
much the defendant had paid in attorney’s fees. Generally, the attorney-client
privilege does not protect fee arrangements and payments because this financial
information is considered an incident of the representation, rather than a
communication regarding the representation. Th erefore, because the subpoena
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called for relevant information that was not protected by the attorney -client
privilege, the court upheld the subpoena.
c. Distinguishing the Attorney-Client Privilege from a Lawyer’s Ethical
Duties to Keep Information Confidential
The attorney-client privilege protects communications between lawyer and client. This
is distinct from an attorney’s professional responsibilities imposed by a jurisdiction’s
ethical rules regarding the confidentiality of information (not just client
communications) obtained as a result of a representation. The attorney -client privilege
only applies during legal proceedings, whereas an attorney’s ethical obligations apply
outside legal proceedings, as well. In other words, an attorney’s professional
responsibility to keep information obtained as a result of the representation
confidential is broader than the scope of the attorney-client privilege, both because
the ethical rules apply to more information than the privilege and because the ethical
rules apply in more places than the privilege. [See Model Rules of Prof. Conduct r. 1.6
(Am. Bar Ass’n 2020); see also Legal Ethics Outline, Professional Obligation of
Confidentiality.]
d. Duration of the Attorney-Client Privilege
The privilege attaches when a client or potential client contacts a lawyer about legal
representation. Once attached, the privilege, as interpreted under federal common
law, applies in perpetuity, even after the client is no longer a client of the attorney and
even after the client has died. [Swidler & Berlin v. United States, 524 U.S. 399 (1998).]
e. Waiver or Forfeiture of the Attorney-Client Privilege
The client holds the privilege with respect to confidential communications made to an
attorney for the purpose of legal representation. This means that the client may assert
the privilege, and the attorney may assert it only on the client’s behalf. As the asserter
of the privilege, the client, through his attorney, has the burden of proving, as a
preliminary question of admissibility under Rule 104(a) of the FRE, that the privilege
applies. This is true regardless of whether the client is a party t o the current
proceeding or is merely a witness. As the holder of the privilege, the client may waive
the privilege. After a valid waiver, the attorney may disclose communications or be
compelled to testify.
Voluntary Disclosures
Voluntary disclosure of privileged information to a third party waives the privilege.
As a result of the rising costs of limiting inadvertent disclosure of confidential
materials, particularly in complex cases involving massive amounts of e -discovery,
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Rule 502 of the FRE was adopted in 2008. Rule 502 limits the scope of any waiver
resulting from a voluntary disclosure in a federal proceeding. If a voluntary
disclosure of otherwise-privileged materials is made in a federal proceeding or to a
federal office or agency (thereby waiving the attorney-client privilege), the waiver
extends to undisclosed materials only if (1) the disclosed and undisclosed material
concern the same subject matter, and (2) fairness dictates that the materials should
be considered together. This rule is part of the FRE’s adoption of predictable and
uniform standards to allow parties to determine the consequences of disclosing
material otherwise covered by the attorney-client privilege or work-product
protections. [Fed. R. Evid. 502(a) advisory committee’s note.]
Inadvertent Disclosure to Third Party
An inadvertent disclosure to a third party does not constitute a waiver of the
attorney-client privilege if the holder of the privilege took reasonable steps to
prevent disclosure and promptly took reasonable steps to rectify the mistake, such
as immediately notifying the party to whom she made the disclosure and ensuring
that the materials are returned or destroyed. The FRE take a middle -ground
approach to waiver issues resulting from inadvertent disclosures; other
jurisdictions vary with the degree of diligence required in preventing and rectifying
inadvertent disclosures, as well as in defining the resulting scopes of any waiver.
[Fed. R. Evid. 502(b).]
Example:
A client retained a lawyer to handle a federal copyright lawsuit. The client
preferred to communicate with the lawyer by email. The client responded to an
email from the lawyer and accidentally forwarded a copy of the email to the
opposing party and opposing counsel. The email string contained numerous
privileged communications between the client and the lawyer. Both the client and
the lawyer realized the mistake but decided not to call attention to the error,
hoping the opposing party would not read the email. Two months later, opposing
counsel referenced the email in a conversation with the lawyer. The lawyer
immediately demanded that the opposing party return or destroy the inadvertently
disclosed email, as required by Rule 502. The privilege was waived. Even though
the disclosure was inadvertent, the privilege holder did not promptly take
reasonable steps to rectify the mistake.
Advice-of-Counsel Defense
If a defendant asserts as a defense that he was acting on advice of counsel, the
defendant implicitly waives the attorney-client privilege. Courts have recognized
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that under these circumstances, the client has chosen to make the attorney’s
advice an issue in the litigation. [In re County of Erie, 546 F.3d 222 (2d Cir. 2008);
Glenmede Tr. Co. v. Thompson, 56 F.3d 476 (3d Cir. 1995).]
f. Exceptions to the Attorney-Client Privilege
There are limited exceptions in which the attorney-client privilege does not protect
communications between lawyer and client, even if the communications were
confidential when made and kept confidential. In determining the applicability of the
exception, courts may make use of in camera inspection of allegedly privileged
materials.
Lawyer Claim of Self-Defense
A lawyer may disclose confidential client communications if the disclosure is
necessary for the lawyer to defend himself, for example, from a legal-malpractice
claim, a claim of ineffective assistance of counsel, or an ethical complaint.
Breach-of-Duty Exception
If a client breaches a duty owed to the lawyer, or the lawyer breaches a duty owed
to the client, the attorney-client privilege does not apply. For example, in a client’s
malpractice suit against the client’s former lawyer, the attorney-client privilege
could not be used by the lawyer or the client to prevent discovery of their
communications.
The Garner Doctrine
The Garner exception to the attorney-client privilege permits a corporation’s
shareholders to overcome management’s assertion of the attorney-client privilege
in a shareholder derivative action against the corporation. Communications between
management and corporate lawyers relating to matters in which corporate
management owes a fiduciary duty to its shareholders are presumptively
privileged. However, shareholders may rebut the presumption of privilege upon a
showing of good cause why it should not be invoked under the circumstances.
Courts may consider nine nonexclusive factors in evaluating whether shareholders
have shown good cause, including:
• the number of shareholders and the percentage of stock they represent;
• the bona fides of the shareholders;
• the nature of the shareholders’ claim and whether it is obviously colorable;
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• the apparent necessity or desirability of the shareholders having the information, and its
availability from other sources;
• whether the alleged wrongful conduct by management is criminal, or illegal but not
criminal, or of doubtful legality;
• whether the communication related to past or prospective actions;
• whether the communication is of advice concerning the litigation itself;
• the extent to which the communication is identified versus the extent to which the
shareholders are blindly fishing; and
• the risk of revelation of trade secrets or other information that the corporation has a
confidentiality interest in for independent reasons.
[See Garner v. Wolfinbarger, 430 F.2d 1093 (5th Cir. 1970).]
Crime-Fraud Exception
If a client knowingly seeks legal advice to further an ongoing or future crime or
fraud, the crime-fraud exception to the attorney-client privilege applies. A party
seeking discovery of materials under the crime-fraud exception must make a prima
facie showing that the communications between the client and the lawyer were
related to and in furtherance of a present or intended criminal action. A party may
make this showing even if the lawyer alleges no knowledge of the fraud. Following
this showing, a judge may review allegedly privileged materials in camera to
determine if the exception applies. [United States v. Chen, 99 F.3d 1495 (1996).]
Deceased-Client Exception
Generally, the attorney-client privilege survives the death of the client. However, if
multiple parties claim an inheritance from the same deceased client, the attorney client privilege does not prevent the lawyer from revealing confidential
communications from the deceased client in order to resolve the dispute and
thereby effectuate the deceased client’s testamentary intent. [United States v.
Osborn, 561 F.2d 1334 (9th Cir. 1977).]
Joint-Client Exception
If a lawyer represents two or more persons, jointly, one person may not assert the
attorney-client privilege to prevent disclosure of confidential communications the
person had in a subsequent lawsuit between the joint-client parties. The parties
may, however, assert the privilege in a lawsuit against anyone else.
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Example:
An individual lawyer represented a man and his spouse in drawing up their joint
will and trust. The man subsequently sued the spouse, and the case went to trial.
The man may not assert the attorney-client privilege at trial to protect from
disclosure communications the man had with the lawyer one-on-one during the
drafting of the wills.
2. Work-Product Doctrine
The work-product doctrine protects from disclosure material prepared in anticipation of
litigation or for trial. The doctrine applies in both criminal and civil litigation. Its goal is to
protect a lawyer’s mental processes, providing a sheltered area in which she can prepare
her case. [Hickman v. Taylor, 329 U.S. 495 (1947).]
Example:
Prior to trial, potential witnesses made off-the-record statements to the defendant’s
lawyer during the lawyer’s initial interviews. The judge did not allow opposing counsel to
ask about those statements or the resulting records at trial because they were made and
recorded in anticipation of litigation. [Hickman v. Taylor, 329 U.S. 495 (1947).]
a. Comparing the Work-Product Doctrine to Attorney-Client Privilege
The work-product doctrine differs from the attorney-client privilege with respect to
the scope of protected materials and also the settings in which each applies.
Scope of Protected Materials
The attorney-client privilege protects only communications (not any kind of
materials). In contrast, the work-product doctrine protects any kind of materials
(not just communications), provided they were prepared in anticipation of
litigation. For example, the work-product doctrine would protect a strategy
memorandum a lawyer drafted explicating a theory of a medical -malpractice case,
even if the memorandum were never transmitted to the client (and thus, it was not
a communication to which the attorney-client privilege applies).
Applicability of the Doctrine
The attorney-client privilege applies both inside and outside of litigation, to protect
any communication in which a client consults a lawyer for legal advice. In contrast,
work-product protections only apply to materials prepared in anticipation of
litigation. For example, the attorney-client privilege would protect discussions a
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client had with her lawyer about preparing a will, but the work-product doctrine
would not.
b. Ordinary versus Opinion Work Product
There are two types of work product: opinion work product and ordinary work
product.
Opinion Work Product
Opinion work product includes a lawyer’s legal theories, conclusions, opinions, and
mental impressions. Opinion work product is nearly absolutely protected against
discovery. Discovery of opinion work product may be permitted in extraordinary
circumstances in which the lawyer’s mental impressions or opinions are at issue in
the case, and there is a compelling need for their discovery. [See Holmgren v. State
Farm Mut. Auto. Ins. Co., 976 F.2d 573 (9th Cir. 1972).]
Ordinary Work Product
Ordinary work product, sometimes called fact work product or tangible work
product, includes memoranda, notes, witness statements, and similar items that a
lawyer or the lawyer’s agent prepares in anticipation of litigation. Ordinary work
product receives qualified protection from disclosure during discovery.
c. The Work-Product Doctrine in Civil Litigation
The work-product doctrine protects materials prepared by a lawyer or the lawyer’s
agent in anticipation of civil litigation. These protections exist before a civil matter is
filed and apply throughout the duration of the trial. Moreover, Rule 26(b)(3) of t he
Federal Rules of Civil Procedure codifies work-product protections in civil litigation by
protecting certain information from disclosure during pretrial discovery.
Materials Protected by Rule 26(b)(3)
Rule 26(b)(3) provides that documents and tangible things (i.e., ordinary work
product) prepared in anticipation of litigation or for trial by or for another party or
its representative (including the other party’s lawyer, consultant, surety,
indemnitor, insurer, or agent) are protected from disclosure. [Fed. R. Civ. P.
26(b)(3)(A).]
Overcoming Qualified Protections for Ordinary Work-Product in Civil Litigation
In civil cases, the work-product doctrine provides a qualified privilege for
documents and tangible things. In other words, a party seeking discovery of
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materials protected by the work-product doctrine may overcome the protections
(and thereby compel discovery) upon a showing of substantial need for the
materials and that the party is unable, without undue hardship, to obtain the
substantial equivalent of the materials by other means. [Fed. R. Civ. P. 26(b)(3)(A);
Fed. R. Evid. 502(g)(2); Upjohn Co. v. United States, 449 U.S. 383 (1981).]
Protecting Opinion Work Product If Ordinary Work Product Disclosed
If a party shows substantial need for materials protected as ordinary work product
and an inability to obtain the materials by other means without undue hardship,
then a court may order their production. If a court orders production of materials
protected as ordinary work product, the court must protect against disclosure of
opinion work product—the mental impressions, conclusions, opinions, or legal
theories of a party’s lawyer or other representative. Opinion work product is
almost absolutely protected from discovery and may be discovered only under
extraordinary circumstances and a showing of a compelling need. [Fed. R. Civ. P.
26(b)(3)(B); Holmgren v. State Farm Mut. Auto. Ins. Co., 976 F.2d 573 (9th Cir.
1972).]
d. The Work-Product Doctrine in Criminal Litigation
Although grounded in the same concerns, the work-product doctrine functions
differently in criminal cases than it does in civil cases. This is because the work product doctrine in criminal cases has a constitutional dimension. Interfering with the
privacy of a defense lawyer by requiring disclosure of materials prepared in
anticipation of litigation violates a criminal defendant’s rights to due process and to
effective assistance of counsel under the Fifth and Sixth Amendments to the US
Constitution. In that sense, unlike in civil cases, the protections afforded by the work product doctrine belong just as much to the criminal-defendant client as they do to
the lawyer. [See United States v. Nobles, 422 U.S. 225 (1975); United States v. Mitchell,
372 F. Supp. 1239 (S.D.N.Y. 1973).]
Work-Product Protections for Prosecutors
The work-product doctrine protects materials prepared by a lawyer or the lawyer’s
agent (i.e., ordinary work product) in anticipation of criminal litigation. These
protections exist before a criminal matter is filed and apply throughout the duration
of trial. Moreover, Rule 16(a)(2) of the Federal Rules of Criminal Procedure codifies
work-product protections for prosecutors by preventing disclosure of certain
materials during pretrial discovery.
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Reports, Memoranda, and Other Documents
Prosecutors need not disclose or make available for inspection reports,
memoranda, or other internal documents prepared by a government attorney
or other government agent in investigating or prosecuting the case. [Fed. R.
Crim. P. 16(a)(2).]
Example:
The work-product doctrine protected from disclosure the government’s death penalty evaluation form and accompanying prosecution memorandum. The
documents were prepared for and used to decide whether the prosecution
would seek the death penalty for the defendants. They were therefore
documents prepared by government attorneys in anticipation of litigation .
[United States v. Fernandez, 231 F.3d 1240 (9th Cir. 2000.]
Compare:
A report of a computer search run by government agents on a seized firearm
was not work product exempted from discovery. The report consisted of a
computer-generated printout from a government database maintained for
broader purposes than prosecution of the defendant. The federal employees
who maintained the database and who generated the report were not agents
of the federal investigators or the prosecutor, and the computer printout did
not contain mental impressions, conclusions, or legal theories of the
prosecution. [Virgin Islands v. Fahie, 419 F.3d 249 (3d Cir. 2005).]
2)
Statements Made by Prospective Government Witnesses
Prosecutors also need not disclose or make available for discovery statements
made by prospective government witnesses, unless otherwise required to do so
by the Jencks Act. The Jencks Act requires the government to provide any
statement or report made by a prospective government witness (other than
the defendant) upon a request by the defendant or court order, but only after
that witness has testified on direct examination. Jencks material can include,
for example, FBI reports made during a criminal investigation that an FBI agent
later relies upon in testifying at trial. [18 U.S.C. § 3500 (2012); Fed. R. Crim. P.
16(a)(2).]
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Work-Product Protections and a Prosecutor’s Duty to Disclose Exculpatory
Evidence
Upon request by the defense, prosecutors have a duty to disclose evidence
material to guilt or punishment, which includes any evidence tending to
impeach a government witness. This exculpatory material is also called
Brady/Giglio evidence. Courts have concluded that the discovery protections
afforded to prosecutors by Rule 16(a)(2) of the Federal Rules of Criminal
Procedure should be narrowly construed to avoid conflict wherever possible
with the prosecutors’ duties to disclose exculpatory material. However, a
prosecutor does not have a duty to disclose all opinion work product. In other
words, the prosecutor’s opinions and mental impressions of the case are not
discoverable under Brady/Giglio unless they contain underlying exculpatory
facts. [Brady v. Maryland, 373 U.S. 83 (1963); Giglio v. United States, 405 U.S.
150 (1972); United States v. Kohring , 637 F.3d 895 (9th Cir. 2011); Virgin
Islands v. Fahie, 419 F.3d 249 (3d Cir. 2005).]
Example:
A prosecutor’s email summarized what a prospective government witness had
told the prosecutor. Statements in the email that the prosecutor thought the
witness recollected certain events better than another witness constituted the
prosecutor’s mental impressions of the evidence and were protected opinion
work product. Other statements in the email that directly narrated the
witness’s recollection of events were underlying exculpatory facts material to
the defendant’s guilt. Therefore, although the government was not obligated
to disclose the email (because it contained the prosecutor’s mental
impressions), it had to disclose the underlying exculpatory facts in the email.
[United States v. Kohring, 637 F.3d 895, 907 (9th Cir. 2011).]
Work-Product Protections for Defense Counsel
Rule 16(b)(2) of the Federal Rules of Criminal Procedure codifies work -product
protections for defense counsel by preventing disclosure of certain materials
during pretrial discovery.
1)
Reports, Memoranda, and Other Documents
Except for scientific or medical reports, defense counsel need not disclose or
make available for inspection reports, memoranda, or other documents ( i.e.,
ordinary work product) made by the defendant or the defendant’s lawyer or
agent, during the case’s investigation or defense. [Fed. R. Crim. P. 16(b)(2)(A).]
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Witness Statements
The work-product protections also cover witness statements that may be
collected by the defense, for example, during the course of investigating a
case. Protected statements include those made by the defendant, a
government defense witness, or a prospective government defense witness to
the defendant or the defendant’s lawyer or lawyer’s agent. [Fed. R. Crim. P.
16(b)(2)(B).]
Waiver of Work-Product Privilege in Criminal Cases
In contrast to civil litigation, a party may not use any showing of substantial need
to overcome work-product protections in criminal litigation. However, a party may
waive work-product protections at trial by relying on or otherwise placing at issue
materials protected by the doctrine at trial.
Example:
Defense counsel hired an investigator to interview two eyewitnesses to a robbery.
The eyewitnesses were expected to testify that the defendant was the person who
committed the robbery. The investigator saved written notes from the interviews.
At trial, defense counsel used the written notes while attempting to impeach the
eyewitnesses’ testimony with testimony from the investigator. Although the
investigator’s notes were protected under the work-product doctrine, defense
counsel had waived those protections by choosing to examine the investigator in
order to impeach the eyewitnesses. [United States v. Nobles, 422 U.S. 225 (1975).]
e. Experts
Lawyers preparing for trial sometimes work with experts. Whether lawyers’
communications with an expert are protected from discovery under the work -product
doctrine depends on whether an expert is testifying at trial.
Experts in Civil Cases
Rule 26(b)(4) of the Federal Rules of Civil Procedure governs the pretrial
discoverability of communications with experts in civil cases.
1)
Nontestifying or Consulting Experts in Civil Cases
Facts or opinions held by nontestifying experts are generally protected by the
work-product doctrine and are discoverable only upon a showing of
exceptional circumstances under which it is impracticable for the discovering
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party to obtain facts or opinions on the same subject by other means. [Fed. R.
Civ. P. 26(b)(4)(D).]
2)
Testifying Experts in Civil Cases
Communications between a party’s lawyer and a witness required to provide a
report (i.e., a testifying expert witness) may be protected work product.
However, the protection does not cover communications (1) relating to the
expert’s compensation or (2) identifying facts, data, or assumptions that the
party’s lawyer provided and that the expert considered in forming opinions to
be expressed. These are rather broad categories of unprotected
communications, so lawyers should be careful about what information t hey
disclose to testifying experts in civil litigation. [Fed. R. Civ. P. 26(b)(4)(C).]
3)
Protection for Draft Reports of Testifying Experts
The 2010 amendments to Rule 26(b)(4) of the Federal Rules of Civil Procedure
extended work-product protection to drafts of any reports a testifying expert
is required to submit. Before the Rule’s amendment in 2010, a majority of
courts held that any material protected by the attorney -client privilege or
work-product doctrine that was shown to a testifying expert was discoverable
under Rule 26. [See, e.g., In re Pioneer Hi-Bred Int’l, Inc., 238 F.3d 1370 (Fed.
Cir. 2001) (illustrating pre-2010 rule).]
Experts in Criminal Cases
The work-product doctrine protects communications to consulting (nontestifying)
experts in criminal cases, but not communications to testifying experts. The
Federal Rules of Criminal Procedure also enable a criminal defendant to discover
any expert testimony the prosecution intends to rely upon in its case -in-chief. [See
Fed. R. Crim. P. 16(a)(1)(G), 16(b)(1)(C).]
1)
Nontestifying or Consulting Experts in Criminal Cases
Communications to consulting experts, who do not testify at trial but help an
attorney understand and prepare for issues in the case requiring specialized
knowledge or expertise, are considered protected by the work-product
doctrine in a majority of courts. Permitting discovery of communicat ions made
to nontestifying experts would deprive a defendant of the effective assistance
of counsel. [See, e.g., United States v. Alvarez, 519 F.2d 1036 (3d Cir. 1975)
(concluding that disclosures made to psychiatrist as sisting defense counsel to
prepare for trial remain protected unless the psychiatrist testifies).]
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Testifying Experts in Criminal Cases
In criminal cases, communications to testifying experts are not protected by the
work-product doctrine. If the privilege applied to testifying experts, this would
enable a party to hamper effective cross-examination of its expert by asserting
the privilege. In fact, Rule 16(a)(1)(G) of the Federal Rules of Criminal
Procedure requires the prosecution, at the defense’s request, to provide a
written summary of any expert testimony the government intends to use
during its case-in-chief. If the defense makes this request, or if the defense
provides notice of its intent to present expert testimony on the defendant’s
mental condition, it must also provide a written summary of expert testimony
upon which the defense intends to rely. Any written summary of expert
testimony must describe (1) the expert’s opinions, (2) the bases and reasons for
those opinions, and (3) the expert’s qualifications. [Fed. R. Crim. P. 16(a)(1)(G)
(prosecution’s written summary); Fed. R. Crim. P. 16(b)(1)(C) (defense’s written
summary).]
Physician/Psychotherapist-Patient Privileges
The physician-patient and psychotherapist-patient privileges serve similar policies: to
encourage full and free disclosures between patients and their practitioners, thereby
encouraging effective treatment and diagnosis. For both privileges, usually the patient holds
the privilege. Therefore, the patient, not the practitioner, has the ability to assert and waive
the privilege. State common law and statutes defining the privilege may also permit health care practitioners and hospitals to assert the privilege to maintain the confidentiality of their
medical records.
1. Physician-Patient Privilege
Federal courts do not recognize a general physician-patient privilege. Most states have
either a common-law or codified physician-patient privilege, and federal courts apply the
state’s physician-patient privilege in diversity cases if state law supplies the rule of
decision. Although state laws vary, the privilege usually applies to confidential
communications between physicians and patients while the patient is seeking treatment or
diagnosis. States vary in how liberally they interpret the privilege’s sco pe. [In re Medtronic,
184 F.3d 807 (8th Cir. 1999); Gilbreath v. Guadalupe Hosp. Found. Inc., 5 F.3d 785 (5th
Cir. 1993).]
Example:
A prosecutor subpoenaed a hospital, seeking all medical records of any person treated for
stab wounds in the emergency room. The prosecutor hoped to use the medical records to
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identify an injured assailant who had fled from the scene of an attack. However, the
prosecutor’s discovery requests sought information protected by the physician -patient
privilege under New York law, because the medical records contained information
acquired by means of medical diagnosis, treatment, or expertise. There would be no way
for a hospital to review its medical records to reasonably discern which information they
contained that could have been observable by a lay person, as opposed to that
observable only through the use of medical expertise. Thus, the subpoenas were
quashed. [Adapted from In re Grand Jury Investigation, 779 N.E.2d 173 (N.Y. 2002).]
2. Psychotherapist-Patient Privilege
All jurisdictions recognize a psychotherapist-patient privilege. The United States Supreme
Court established a privilege for communications between a psychotherapist and the
psychotherapist’s client. This privilege is absolute, but it is subject to an exception for
instances in which disclosure of the communication is necessary to avoid serious harm to
the patient or someone else. The policy behind the privilege is to promote an atmosphere
of trust and confidence that allows psychotherapists to provide effective treatment to
their patients. [Jaffee v. Redmond, 518 U.S. 1 (1996).]
a. Practitioners Included within Psychotherapist-Patient Privilege
The psychotherapist-patient privilege applies to communications to psychiatrists,
psychologists, and clinical social workers during the course of psychotherapy. [Jaffee v.
Redmond, 518 U.S. 1 (1996).]
b. Scope of Psychotherapist-Patient Privilege
The psychotherapist-patient privilege applies to confidential communications made
between a patient and a therapist for the purpose of obtaining treatment or diagnosis
of a psychological, mental, or emotional condition. [Jaffee v. Redmond, 518 U.S. 1
(1996).]
c. Exceptions to Psychotherapist-Patient Privilege
Although the law on the psychotherapist-patient privilege continues to evolve, some
courts recognize exceptions for dangerous patients and in cases in which
communications between the psychotherapist and patient would be directly at issue,
such as civil commitment proceedings and court-ordered examinations.
Dangerous-Patient Exception
Some federal circuit courts of appeal recognize an exception to the
psychotherapist-patient privilege if disclosure of a confidential communication is
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necessary to avoid serious harm to the patient or someone else. However, other
circuits treat the psychotherapist-patient privilege as absolute and recognize no
exception, even in cases in which disclosure may be necessary to prevent harm.
[See Jaffee v. Redmond, 518 U.S. 1 (1996) (suggesting in dicta that it may be
necessary in some circumstances for a dangerous-patient exception to the
psychotherapist-patient privilege). Compare United States v. Ghane, 673 F.3d 771
(8th Cir. 2012) (rejecting dangerous-patient exception), United States v. Chase, 340
F.3d 978 (9th Cir. 2003) (same), and United States v. Hayes, 227 F.3d 578 (6th Cir.
2000) (same), with United States v. Glass, 133 F.3d 1356 (10th Cir. 1998)
(recognizing dangerous-patient exception), and Tarasoff v. Regents of the Univ. of
Cal., 551 P.2d 334 (Cal. 1976) (recognizing exception).]
Other Exceptions
Although federal law continues to evolve on the scope of the psychotherapist patient privilege and its various exceptions, and state law may vary, three scenarios
in which the privilege likely would not extend are (1) civil commitment proceedings,
(2) court-ordered examinations, and (3) lawsuits in which patients place their
psychological state at issue. [See Doe v. Oberweis Dairy, 456 F.3d 704 (7th Cir.
2006) (reasoning that defendant could seek discovery of records of plaintiff’s
psychological state if plaintiff claimed damages for emotional distress); Barrett v.
Vojtas, 182 F.R.D. 177 (W.D. Pa. 1998) (concluding that patient had no reasonable
expectation of confidentiality during court-ordered psychiatric exam).]
Other Privileges
In addition to protections for spouses, attorneys, and clients, a number of other privileges
protect important relationships (e.g., those between clergy and penitents) and enable persons
protected by the privilege to perform important functions effectively (e.g., persons in
government service or journalism).
1. Clergy-Penitent Privilege
Every jurisdiction has some form of a clergy-penitent privilege. The federal common-law
clergy-penitent privilege protects private communications between a penitent seeking
moral or spiritual advice and a member of the clergy. Typically, a member of the clergy
includes a minister, priest, rabbi, or other person serving a similar function in a religious
organization, or an individual reasonably believed to be functioning in that capacity by the
penitent consulting him. The communications will be privileged u nless the privilege is
waived—even if the communications include disclosures of illegal acts. The policy behind
the clergy-penitent privilege is to promote the confidentiality necessary for fostering and
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protecting relationships between clergy and communicants. [In re Grand Jury Investigation,
918 F.2d 374 (3d Cir. 1990).]
Example:
A penitent’s communications with a church music director were not protected by the
clergy-penitent privilege. The music director did not serve as the church’s pastor or
handle questions of church doctrine or policy. The music director was therefore not a
member of the clergy included in the privilege. [Waters v. O’Connor, 103 P.3d 292, 297
(Ariz. Ct. App. 2004).]
2. Privileges Arising in Government Service
In addition to the attorney-client privilege, a variety of privileges may arise in the context
of government service.
a. State-Secrets Privilege
The state-secrets privilege allows the United States to prevent the disclosure of
information in a judicial proceeding if there is a reasonable danger that disclosure of
the information would expose military matters that should not be disclosed for
national-security reasons. This privilege belongs only to the government and may not
be claimed or waived by a private party. [El-Masri v. United States, 479 F.3d 296 (4th
Cir. 2007).]
b. Deliberative-Process Privilege
The deliberative-process privilege protects the disclosure of documents created in
furtherance of the formation of governmental policy (e.g., pre-decisional documents
that would reveal recommendations, deliberations, or advisory opinions). The purpose
of the privilege is to allow the government to make informed decisions by giving
officials the freedom to privately deliberate alternative approaches. [ In re Sealed Case,
121 F.3d 729 (D.C. Cir. 2007).]
c. Presidential-Communications Privilege
The presidential-communications privilege protects the disclosure of documents and
other materials reflecting presidential decision-making and deliberations that the
president believes should remain confidential, including communications made directly
to the president and the president’s closest advisors. The purpose of this privilege is
to allow informed decision-making by ensuring confidentiality and preserving the
president’s ability to obtain candid, informed opinions from advisors. [Ctr. for Effective
Gov’t v. U.S. Dep’t of State, 7 F. Supp. 3d 16 (D.D.C. 2013).]
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d. Law-Enforcement Privilege
The law-enforcement privilege protects disclosure of the identity of confidential
informants, undercover investigations, and investigatory files. The purpose of the
privilege is to prevent disclosure of law-enforcement techniques and procedures and
otherwise prevent interference with law-enforcement investigations. The privilege
also safeguards witnesses, sources, and other individuals involved in law-enforcement
investigations. [See, e.g., In re City of New York, 607 F.3d 923 (2d Cir. 2010).]
3. Journalist’s Privilege to Withhold a Source’s Identity
A number of states recognize a journalist’s privilege not to disclose the identity of a
confidential source. A divided United States Supreme Court held in Branzburg v. Hayes
that the First Amendment’s guarantee of freedom of the press does not require a
journalist’s privilege. Since then, federal courts have taken various approaches to whether
a privilege might exist under federal common law. Some federal courts have
acknowledged a qualified journalist’s privilege requiring a balancing of interests. Others,
citing Branzburg, have rejected that view. [Branzburg v. Hayes, 408 U.S. 665 (1972); In re
Grand Jury Subpoena, Judith Miller, 438 F.3d 1141 (D.C. Cir. 2006) (expressing jurists’
differing views on whether a federal common-law journalist’s privilege exists); McKevitt v.
Pallasch, 339 F.3d 530 (7th Cir. 2003) (opining that there might be a privilege for
journalists based upon federal common law and not upon the First Amendment); United
States v. Cuthbertson, 651 F.2d 189 (3d Cir. 1981) (acknowledging a qualified privilege for
the media under federal common law).]
Insurance Coverage
In general, a party may offer evidence of health insurance, life insurance, and other types of
insurance. There are limits on the admissibility of liability insurance to prevent a factfinder
from drawing an improper influence about a party’s fault or ability to pay a judgment.
1. Evidence of Liability Insurance Inadmissible to Show Fault or Ability to Pay
Judgment
Evidence whether a person involved in a lawsuit had liability insurance is not admissible to
prove the person’s negligence or wrongfulness. Nor is this evidence admissible to show that
a defendant has the ability to pay a civil judgment against him. This rule prevents a jury
from making an improper inference that a party carrying liability insurance may be more
likely to be reckless. Further, this rule encourages people to maintain liability insurance.
[Fed. R. Evid. 411; Church Ins. Co. v. Trippe Mfg. Co., 250 F. App'x 420 (2d Cir. 2007).]
2. When Evidence of Liability Insurance Coverage Is Admissible
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Evidence of liability insurance coverage may be admissible for other reasons, including:
• to prove a witness’s bias (e.g., if the witness is an insurance investigator);
• if the insurance company is a party in the action (e.g., in a claim of bad faith against the
insurance company); or
• to prove an insurance policyholder’s agency, ownership, or control.
This is a nonexclusive list; therefore, evidence of liability insurance could be admissible for
other purposes if the party does not offer the evidence to show that the insured acted
negligently or otherwise wrongfully or that the defendant has the ability to pay a civil
judgment. [Fed. R. Evid. 411 advisory committee’s note; Pinkham v. Burgess, 933 F.2d
1066 (1st Cir. 1991).]
Examples:
(1) A bicyclist sued a motorist, alleging that the bicyclist was seriously injured when the
motorist failed to stop at a stop sign and struck the bicyclist while she was in the
intersection. A defense witness testified that the bicyclist had told him that she was
“barely touched” by the motorist’s car. On cross-examination, the bicyclist sought to elicit
from the witness the fact that he was an adjuster for the motorist’s insurance company.
Because FRE 411 bars evidence of liability insurance to prove negli gence or wrongful
conduct, this testimony was admissible only to impeach the witness for bias.
(2) A plaintiff injured at a hardware store sued for negligence. The defendant claimed that
he sold the hardware store and no longer owned it. The plaintiff could introduce evidence
that the defendant held an insurance policy on the store. The evidence was admitted
solely to prove that the defendant owned the store.
Remedial Measures
Subsequent remedial measures are steps taken after an injury or harm has occurred that would
have made the injury less likely to occur. For example, subsequent remedial measures can
include physical repairs; installation of safety or warning devices; or changes in design,
instructions or labeling, or business practices or procedures. Subsequent remedial measures
do not include post-accident investigations or reports. The FRE limit the admissibility of
subsequent remedial measures to avoid discouraging tortfeasors from taking reasonable and
responsible steps after an injury occurs—if subsequent remedial measures were admissible to
prove negligence, there would be an incentive not to take these measures, even though it
would be in the public interest to do so. [Fed. R. Evid. 407 advisory committee’s note; Werner
v. Upjohn Co., Inc., 628 F.2d 848 (4th Cir. 1980).]
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1. Remedial Measures Inadmissible to Show Fault, Defect, or Need for
Warning
Remedial measures are not admissible to prove negligence, culpable conduct, a product or
design defect, or a need for a warning or instruction. [Fed. R. Evid. 407.]
2. When Subsequent Remedial Measures Are Admissible
Subsequent remedial measures may be admissible for other purposes, including proving
ownership, control, or the feasibility of precautionary measures if these issues are in
dispute. Subsequent remedial measures also may be admissible to impeach a witness, but
generally only to prevent the jury from being misled. [Fed. R. Evid. 407; see, e.g., Minter v.
Prime Equip. Co., 451 F.3d 1196 (10th Cir. 2006).]
Examples:
(1) A motorist was transported to a hospital for emergency medical treatment of injuries
he sustained in a single-car accident. The hospital advised the motorist of its policy
requiring that “in all cases of injuries sustained in single -car accidents, conscious patients
must be interviewed and cleared by a substance-abuse counselor prior to treatment.”
Hours later, a substance-abuse counselor cleared the motorist. Hospital personnel
immediately evaluated the motorist and found that he had a significant brai n bleed
necessitating immediate treatment, which had been delayed by the hospital’s policy. The
motorist sued the hospital for negligence and medical malpractice. Shortly thereafter, the
hospital eliminated its policy regarding single-car accident victims. The hospital
elimination of its single-car-accident policy was a subsequent remedial measure.
Accordingly, it was not admissible to prove negligence, culpable conduct, a product or
design defect, or a need for a warning or instruction.
(2) An employee injured by a slip-and-fall on a ramp at work sued his employer, the
owner of the facility, and another occupier of the facility for negligence. The three
defendants disputed which of them controlled the ramp. The district court could proper ly
admit evidence of ramp repairs for the limited purpose of showing which of the
defendants controlled the ramp at the time of the employee’s injury. The judge properly
instructed the jury that the fact that the occupier of the facility had replaced the r amp
was not evidence that the occupier was negligent in maintaining the ramp. [Clausen v.
Storage Tank Dev. Corp., 21 F.3d 1181 (1st Cir. 1994).]
Compromise, Payment of Medical Expenses, and Plea Negotiations
Rules 408, 409, and 410 of the FRE limit the admissibility of statements and conduct
occurring during efforts to settle a civil or criminal matter. The rules serve the policy goals of
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promoting prompt settlement of matters by encouraging candid disclosures during settlement
negotiations.
1. Compromise Offers and Negotiations
Rule 408 of the FRE limits the admissibility of settlement offers and all related
negotiations. The purpose of this rule is to encourage parties to reach a compromise
without a trial. [Fed. R. Evid. 408 advisory committee’s note.]
a. Inadmissible to Show Validity or Amount of Disputed Claim or to
Impeach a Witness
Settlement offers or acceptances and any conduct or statements made during related
negotiations are not admissible to (1) prove or disprove the validity or amount of a
disputed claim or (2) impeach a witness by a prior inconsistent statement or a
contradiction. Statements like these are not admissible by either party, meaning that
even the party who made the statement in question may not introduce it into
evidence. During settlement negotiations, parties may necessarily make statements
detrimental to their cases. [Fed. R. Evid. 408(a).]
Note: As the bar on statements or conduct requires that there must be a dispute as to
the validity or amount of a claim, a statement completely admitting liability may be
admissible. [Fed. R. Evid. 408(a).]
Examples:
(1) A homeowner sued a roofer for damages resulting from the roofer’s allegedly
faulty replacement of roof shingles, which resulted in leakage that damaged the
house’s second-floor ceilings. At trial, the homeowner testified that when he first
detected the roof leak, he called the roofer for help. The roofer responded, “I’ll come
by early tomorrow and redo the shingles for free.” The roofer moved to strike this
testimony. The roofer’s statement was not an offer of compromise because there was
no pending dispute when the roofer made the statement. The homeowner was simply
calling for service and had not complained about the roofer’s work or otherwise
indicated that the parties had a dispute. Therefore, the testimony was admissible.
(2) A plaintiff sued a defendant for personal injuries the plaintiff suffered when she
was bitten as she was trying to feed a rat that was part of the defendant’s caged -rat
experiment at a science fair. At trial, the plaintiff offered evidence that immedia tely
after the incident, the defendant said to her, “I’d like to give you this $100 bill,
because I feel so bad about this.” The statement would not be excluded from evidence
under FRE 408, which excludes statements that are made to settle a claim, because
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that rule only applies when the statement is made as a compromise to a disputed
claim. Here, at the time the defendant made the statement, he was not contesting that
he was at fault. Therefore, there was no disputed claim. Accordingly, the statement
was admitted as a statement of a party-opponent, notwithstanding FRE 408.
Compare:
A plaintiff sued a gas station for injuries she sustained when she fell while pumping
gasoline. The plaintiff alleged that the station had negligently failed to keep its
premises free of spilled gasoline and automobile fluids. Before the plaintiff filed he r
complaint, she threatened to sue the gas station. The gas station manager responded
by saying, “I know that things were slippery from gas, but be real, you fell because
you’re clumsy. However, we don’t need the hassle. The station will give you $500 if
you release it from any claims you might have.” The plaintiff refused the offer. At trial,
the plaintiff sought to testify about the manager’s statement about the station being
slippery due to gas. Because there was a dispute between the parties, and the ga s
station manager’s statement was made in furtherance of settling that dispute, Rule
408 barred the admission of the manager’s statement.
b. Compromise Offers and Negotiations Admissible for Other Purposes
Settlement offers and negotiations may be admissible for any other purposes,
including (1) proving a witness’s bias or prejudice, (2) negating a contention of undue
delay, or (3) proving an effort to obstruct a criminal investigation or prosecution. [Fed.
R. Evid. 408(b).]
Example:
A plaintiff injured by scalding fluid from a car’s radiator sued the car manufacturer on
a products-liability theory. At trial, the plaintiff introduced evidence of three other
instances in which the same type of radiator failed and caused injury. In each of those
cases, the parties settled before reaching trial. The plaintiff called the injured parties
in each of the cases to testify. The court permitted the defendant to introduce
evidence of the three settlements to demonstrate that the reason the injured parties
were testifying against the defendant was because they were unhappy with their
settlements. The settlements were not admitted into evidence to help the defendant
prove it was not negligent, but rather to demonstrate the witnesses’ bias against the
defendant. [Croskey v. BMW of N. Am., Inc., 532 F.3d 511 (6th Cir. 2008).]
c. Compromise Negotiations with Government Agencies Admissible in
Subsequent Criminal Case
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Conduct or statements made during compromise negotiations in a civil dispute
involving a government regulatory, investigative, or enforcement agency are
admissible in a subsequent, related criminal case. This exception does not apply to
settlement offers or acceptances. [Fed. R. Evid. 408(a)(2) advisory committee’s note.]
Example:
The Securities and Exchange Commission (SEC) brought a civil securities -enforcement
action against a defendant. During negotiations related to that civil enforcement
action, the defendant made incriminating statements. Subsequently, the state in which
the alleged activity occurred charged the defendant with criminal mail fraud. The rule
regarding admissibility of compromise negotiations with government agencies does not
bar the prosecution from introducing into evidence the statements that the defendant
made to the SEC during the negotiation phase of the civil proceeding. [ United States v.
Prewitt, 34 F.3d 436 (7th Cir. 1994).]
2. Offers to Pay Medical and Similar Expenses
Under Rule 409 of the FRE, evidence of paying or promising or offering to pay medical,
hospital, or similar expenses resulting from an injury is not admissible to prove liability for
the injury. The purpose of this rule is to encourage parties to make the humane gesture
of offering to pay an injured individual’s medical expenses. Similar to other policy -based
exclusions, this type of evidence may be admissible for other purposes ( e.g.,
impeachment), as this rule applies only to evidence offered for the purp ose of proving
liability. In addition, the rule bars evidence only of offers to pay for medical expenses; it
does not bar surrounding statements or conduct. However, it is possible that the
statements or conduct would be barred by the rule regarding settlement offers if the
offer is made in the context of settlement negotiations. Also, unlike the rule regarding
settlement offers, offers to pay for medical ex penses do not have to relate to a disputed
claim to be deemed inadmissible. [Fed. R. Evid. 409; see Compromise Offers and
Negotiations, supra.]
Example:
A fast-food restaurant patron was injured when the attendant at the drive -through
window spilled a cup of scalding coffee onto the patron’s hand. The restaurant manager,
who witnessed the incident, immediately went to the patron’s aid, and said, “I am so
sorry! The restaurant will pay for all your medical expenses.” Thereafter, when the
restaurant denied liability for the incident, the patron sued the attendant, the restaurant
manager, and the restaurant. At trial, the patron sought to introduce the manager ’s
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statements as proof of the restaurant’s liability. The manager’s statement was not
admissible to prove the restaurant’s or attendant’s liability for the patron’s injury.
3. Pleas, Plea Discussions, and Related Statements
Rule 410 of the FRE renders certain pleas and statements made during plea negotiations
and proceedings inadmissible against the pleading defendant for any purpose. There are
limited exceptions in subsequent trials for perjury or if fairness dictates that s tatements
be admitted together with other, admissible statements from the same negotiation or
proceeding for the sake of completeness. However, Rule 410 does not exclude evidence
pertaining to accepted pleas or statements made during negotiations resulting in accepted
pleas. [Fed. R. Evid. 410; see also Fed. R. Crim. P. 11(f) (stating admissibility of a plea, plea
discussion, or any related statement is governed by FRE 410).]
a. Not Admissible against Defendant Who Made the Pleas or Participated
in Plea Discussions
In a civil or criminal case, evidence of the following is not admissible for any purpose
against a defendant who made the plea or participated in the plea discussions:
• a guilty plea that was later withdrawn,
• a no-contest plea,
• statements made during proceedings for a guilty plea later withdrawn or a no-contest plea,
and
• statements made during plea discussions with an attorney for the prosecuting authority if
the discussions did not result in a guilty plea or resulted in a later-withdrawn guilty plea.
The purpose of this rule is to encourage parties to enter into plea bargains. This is
essentially the criminal version of Rule 408 of the FRE, which bars the introduction of
negotiations in civil cases. This rule does not cover accepted pleas or statements made
during negotiations that lead to accepted pleas. Additionally, the rule does not apply to
statements made after a plea is accepted, but before it is withdrawn, as the
statements are not during plea negotiations. Finally, the rule does not apply to
statements made during police interrogation sessions, as those discussions generally
are not authorized plea negotiations. [Fed. R. Evid. 410(a); Fed. R. Crim. P. 11(f); see
Compromise Offers and Negotiations, supra.]
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b. Limited Exceptions for Statements for Completeness and in Perjury
Trials
A defendant’s otherwise-inadmissible statement made during plea negotiations or plea
proceedings may be admissible (1) if another statement made during the same plea
negotiations or proceedings was introduced, and fairness dictates that the jury should
consider the statements together or (2) in a criminal proceeding for perjury or false
statements, if the defendant made the statement under oath, on record, and with
counsel present. [Fed. R. Evid. 410(b).]
c. Waiver Permitted
A defendant may agree to waive the protections of Rule 410, provided he does so in
advance of entering plea negotiations. [United States v. Mezzanatto, 513 U.S. 196
(1995).]
Past Sexual Conduct of a Victim
Rule 412 of the FRE, sometimes called the rape-shield rule, limits the admissibility of evidence
of a victim’s past sexual behavior in civil or criminal cases involving alleged sexual misconduct .
The rule protects victims from invasions of privacy, potential embarrassment, and
stereotyping associated with disclosure of intimate sexual details. [Fed. R. Evid. 412 advisory
committee’s note.]
1. Scope of Exclusion
In civil or criminal cases involving alleged sexual misconduct, evidence that the alleged
victim engaged in other sexual behavior or has a sexual predisposition is generally not
admissible. [See Fed. R. Evid. 412 advisory committee’s note.]
a. Sexual Misconduct
Sexual misconduct is not defined in the FRE, but it has been construed broadly to
include conduct such as sexual harassment.
b. Sexual Behavior
Sexual behavior includes all activities that involve physical contact (e.g., sexual
intercourse and sexual contact) and activities that imply sexual intercourse or contact;
behavior can also include activities of the mind, such as fantasies or dreams.
Example:
A defendant charged with sex trafficking sought to present evidence that the alleged
victims of his trafficking had engaged in prostitution. He sought to demonstrate that
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the women’s propensity to engage in prostitution negated their testimony that the
defendant forced them into prostitution. Because this is precisely the type of evidence
that FRE 412 and 404 bar, the court correctly excluded the evidence. [Fed. R. Evid.
404, 412; United States v. Bixler, 2022 WL 247740 (6th Cir. 2022).]
c. Predisposition Evidence
Predisposition evidence is evidence that does not refer directly to sexual activities or
thoughts, but instead to evidence that the proponent of the evidence believes may
have a sexual connotation for the factfinder (e.g., the victim’s lifestyle, dress, or
speech).
2. Exceptions under Which Past Sexual Conduct Is Admissible
A court may admit past sexual conduct of a victim in criminal or civil cases under limited
exceptions. If none of the exceptions apply, then the evidence is inadmissible.
a. Admissibility of Victim’s Past Sexual Conduct in Criminal Cases
A court may admit evidence of a victim’s previous sexual behavior or sexual
predisposition in a criminal case involving allegations of sexual misconduct under three
circumstances.
To Show Someone Else Assaulted the Victim
First, a court may admit specific instances of the victim’s past sexual conduct if it is
offered to prove that someone other than the defendant was the source of semen
or other physical evidence (e.g., injury).
To Show Consent, for Past Sexual Conduct with the Defendant Specifically
Second, a court may admit specific instances of the victim’s past sexual conduct
with the defendant specifically, if offered by the defendant to show consent, or if
offered by the prosecution for any purpose.
If Exclusion Would Violate the Defendant’s Constitutional Rights
Third, any type of evidence of the victim’s past sexual conduct or predisposition
(not only specific instances) may be admitted if its exclusion would violate the
defendant’s constitutional rights (e.g., a defendant’s rights under the Confrontation
Clause). [See Olden v. Kentucky, 488 U.S. 227 (1988).]
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Rules 401 and 403 Still Govern
Even if one of the exceptions applies, the evidence is still subject to exclusion
under Rule 401 of the FRE if it is irrelevant, or under Rule 403 of the FRE if its
probative value is substantially outweighed by the danger of unfair prejudice. [Fed.
R. Evid. 412 advisory committee’s note.]
Method of Proof in Criminal Cases
In a criminal case, generally a party may prove a sexual-assault victim’s past sexual
behavior or predisposition through specific instances of conduct. This form of proof
is required in light of the evidence’s limited probative value and the questionable
reliability of reputation or opinion evidence. Unless required by the US
Constitution, neither party may call a witness to testify about the victim’s p ast
sexual behavior or predisposition. [Fed. R. Evid. 412(b)(1) advisory committee’s
note; United States v. Pablo, 696 F.3d 1280 (10th Cir. 2012).]
b. Admissibility of Victim’s Past Sexual Conduct in Civil Cases
A court may admit evidence of a victim’s past sexual conduct or sexual predisposition
in a civil case involving allegations of sexual misconduct if the evidence’s probative
value substantially outweighs the danger of harm to the victim (e.g., humiliation) and
unfair prejudice to any party. This is the opposite of Rule 403’s admissibility standard,
which allows for the admission of evidence if the danger of the evidence’s unfair
prejudice does not substantially outweigh the evidence’s probative value. [Fed. R.
Evid. 412(b)(2); Excel Corp. v. Bosley, 165 F.3d 635 (8th Cir. 1999); but see Exclusion
for Unfair Prejudice, Confusion, or Waste of Time, supra (discussing Rule 403, which
operates under the opposite admissibility standard).]
Example:
A woman filed a civil action against a coworker seeking damages for physical and
psychological injuries arising from an alleged sexual assault at a holiday party.
According to the woman, her psychological injuries were especially traumatic because
she believed in sexual abstinence before marriage and lacked prior sexual experience.
The coworker moved to admit evidence that the woman had sexual relations with
another person in the year preceding the alleged assault. Evidence of the woman’s
past sexual behavior with another person had significant probative value because the
woman specifically alleged psychological injuries attributable to her belief in
abstinence before marriage and her lack of prior sexual experience. The probative
value of this evidence likely substantially outweighed the potential harm that could
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inure to the woman if the jurors heard evidence that the woman previously had sexual
relations with another person. Therefore, the court admitted this evidence.
c. Notice and In Camera Hearing Requirement for Civil and Criminal Cases
In both civil and criminal cases, a party planning to offer evidence of past sexual
conduct of a victim under an exception to the rule must file a motion to do so at least
14 days in advance of trial and must provide notice to the victim. In addition, the court
must conduct an in camera hearing, at which parties have the right to be heard, to
determine the admissibility of the evidence. [Fed. R. Evid. 412(c).]
d. Previous False Accusations of Rape
Although not directly covered by the rule, it is possible that a defendant may
introduce into evidence a victim’s past accusations of rape that turned out to be false.
[See, e.g., United States v. Stamper, 766 F. Supp. 1396 (W.D.N.C. 1991); but see United
States v. Crow Eagle, 705 F.3d 325 (8th Cir. 2013) (holding that the trial court properly
excluded evidence of the victim’s prior false accusations of sexual misconduct because
the accusations constituted sexual behavior).]
IV. Writing, Recordings, and Photographs
If a writing, recording, or photograph is introduced into evidence, special rules govern its
admission. Sometimes the best-evidence rule will require that the original writing or recording be
introduced into evidence, or at least made available to the opposing party. The best -evidence
rule acts to ensure that the evidence introduced at trial is as reliable as practicable. Moreover,
the rule of completeness may require that additional evidence be admitted simultaneously with
the written statement or recording, to ensure that evidence is not made misleading by being
taken out of context.
Requirement of Original
The best-evidence rule provides that an original writing, recording, or photograph is required
in order to prove its contents, unless the FRE or a federal statute provides otherwise. The
best-evidence rule was initially implemented to ensure the completeness and accuracy of
written works (recordings and photographs were added later) and to safeguard against
forgery. [Fed. R. Evid. 1002 advisory committee’s note; United States v. Buchanan, 604 F.3d
517 (8th Cir. 2010).]
1. Applicability of Best-Evidence Rule
The best-evidence rule only arises when a party uses a writing, recording, or photograph
to prove its contents. The rule typically arises if a writing, recording, or photograph has
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independent legal significance (e.g., a contract in a breach-of-contract action or an
offending publication in a libel action), and a party chooses to use the writing, recording,
or photograph to prove its contents. It can also arise when a party uses a writing,
recording, or photograph to prove a fact contained in the writing, recording, or photograph.
For example, a party may choose to use a recording of a conversation to show what a
person said. In that case, the recording is being used to prove the cont ents of the
recording itself, and the best-evidence rule applies.
Example:
In a drug case, the prosecution sought to introduce photographs of documents found in a
drug lab in order to prove what the documents said. Under the best -evidence rule, the
prosecution was not permitted to introduce the photographs for that purpose. Becau se
the prosecution wanted to prove the contents of the documents, it must introduce the
documents themselves. [United States v. Stockton, 968 F.2d 715 (8th Cir. 1992).]
Compare:
A defendant was being prosecuted for conspiracy to commit murder. At trial, a
government agent sought to testify about a conversation that he overheard between the
defendant and a coconspirator regarding the murder plans. That conversation was also
audiotaped, although significant portions were inaudible. The defendant objected to the
agent’s testimony on the ground that it was not the best evidence of the conversation.
Because the agent personally heard the conversation, he was not relying on the
audiotape’s contents for his testimony. The agent was not attempting to prove the
audiotape’s contents, only what he overheard. The conversation could also be proven by
introducing the audiotape, and there was an argument that the audiotape was better
evidence than the agent’s testimony. Nevertheless, provided the agent obtained his
knowledge of the conversation from his own perception, and not by listening to the
audiotape, the best-evidence rule did not apply.
a. Inapplicable to Use of Writing, Recording, or Photograph for Purposes
Other Than Proving Its Contents
An original is not required if the proffering party is not seeking to prove the contents
of the writing, recording, or photograph with the writing, recording, or photograph.
Example:
In a bank-fraud case, the court allowed the prosecution to prove that a bank was
federally insured via testimony. The court did not require the prosecution to produce
the original insurance policy, because the fact the prosecution was seeking to prove
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was that the bank was insured, not the actual contents of the written policy. [United
States v. Sliker, 751 F.2d 477 (2d Cir. 1984).]
b. Inapplicable to Use of Other Evidence to Prove Facts Contained in
Writing, Recording, or Photograph
An original is also not required if an offering party uses other evidence to prove facts
contained in a writing, recording, or photograph. For example, a party to a recorded
conversation may testify about the contents of the conversation without admitting the
recording into evidence; the best-evidence rule does not apply to the witness’s
testimony because the witness is testifying based on her own personal knowledge of
events. However, if a witness’s only personal knowledge of the facts to which she is
testifying comes from having viewed a writing, recording, or photograph, then the
best-evidence rule does apply to that witness’s testimony. Under those circumstances,
the original of the writing, recording, or photograph must be produced unless an
exception applies. [Fed. R. Evid. 1002; United States v. Bennett, 363 F.3d 947 (9th Cir.
2004).]
Example:
An investigator’s testimony about GPS data showing where a defendant’s boat had
traveled violated the best-evidence rule. The investigator had not personally observed
the defendant’s boat traveling a particular route. Rather, the investigator’s only
personal knowledge of which route the defendant’s boat had traveled came from the
GPS’s backtrack feature, which the investigator had viewed during a search of the
defendant’s boat. During the search, the investigator had not taken possession of the
GPS device itself or obtained any of the data the device contained. The investigator’s
testimony could not be used to show that the defendant’s boat had traveled a
particular route without introducing the best evidence of which route the boat had
traveled—here, the GPS data showing the route. [United States v. Bennett, 363 F.3d
947 (9th Cir. 2004).]
2. Original
For purposes of the best-evidence rule, an original writing or recording is defined as the
original writing or recording itself or any counterpart intended to have the same effect as
the original by the person who executed or issued the writing or recording. Under this
definition, an exact or carbon copy of a document executed in duplicate and intended to
serve as an original is considered an original. For information stored electronically, an
original means any printout or other output readable by sight, i f the output accurately
reflects the information sought to be proven. For many types of written or recorded
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evidence, there may be more than one “original” that suffices under the best -evidence
rule. [Fed. R. Evid. 1001(d) advisory committee’s note.]
3. Writing
For purposes of the best-evidence rule, a writing is defined as letters, words, numbers, or
their equivalent that are set forth in any form (e.g., newspapers, emails, accounting
ledgers, and drawings). Courts have held that the best-evidence rule is inapplicable to
short inscriptions on chattels (e.g., markings on a safe). However, if an inscription on a
chattel is complicated, or its precise content is central to the issues before the court,
courts have discretion to treat the inscription as a writing to which the best -evidence rule
applies. [Fed. R. Evid. 1001(a); United States v. Buchanan, 604 F.3d 517 (8th Cir. 2010).]
4. Recording
Although the best-evidence rule originally applied only to writings, the rule was later
expanded to include recordings, in recognition of technological advancements in
recording and storing data. For purposes of the best-evidence rule, a recording is defined
as letters, words, numbers, or their equivalent recorded in any manner (e.g., wiretap
recordings or tape recordings). [Fed. R. Evid. 1001(2) advisory committee’s note.]
5. Photograph
For purposes of the best-evidence rule, a photograph means a photographic image or its
equivalent stored in any form. An original of a photograph includes the negative or a print
made from a negative. [Fed. R. Evid. 1001(c)-(d).]
Example:
A motorist, who had been injured when a passenger train struck her at a railroad crossing,
sued the railroad for damages. Central to the case was the severity of the motorist’s
injuries. At trial, the motorist sought to introduce a color photograph of hers elf made
from a video recording taken by a bystander at the scene of the collision. The photograph
showed the motorist moments after the collision, unconscious and covered in blood. The
motorist demonstrated that the original videotape had been erased and that the
photograph had been made from the videotape. Therefore, the photograph was either a
duplicate of the original, or an original itself if it was found to be a print from a negative.
Accordingly, the best-evidence rule did not bar the photograph’s admission.
Exceptions to the Best-Evidence Rule
Certain exceptions to the best-evidence rule have been adopted to acknowledge
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technological advances since the adoption of the rule and practicalities if an original is not
available. If an exception applies, then a party may prove the contents of a writing, recording,
or photograph by using secondary evidence (i.e., evidence other than the original).
1. Admissibility of Duplicates
Unless there is a genuine dispute over the authenticity of an original document, or it
would be unfair to admit a duplicate, an exact copy of the document is admissible just as
the original would be. For purposes of the best-evidence rule, a duplicate includes any
counterpart to the original made by mechanical, photographic, chemical, electronic, or
other equivalent process that accurately reproduces the original. Handwritten copies are
not duplicates. Under this exception to the best-evidence rule, the proponent does not
have to show that the original is unavailable. [Fed. R. Evid. 1001(e) advisory committee’s
note; Fed. R. Evid. 1003.]
a. Duplicates Distinguished from Originals
Depending on the intent of the maker, a copy of a writing or recording (also called a
counterpart) may be an original or a duplicate. Counterparts intended to have the
same effect as the original by the person who executed or issued the writing or
recording do not need an exception to be admissible under the best -evidence rule;
they are within the rule’s definition of originals. In contrast, counterparts not intended
to have the same effect as the original by the person who executed or issued the
writing or recording may be admissible as duplicates, provided they accurately
reproduce the original, there is no genuine dispute over the original’s authenticity, and
it would not be unfair to admit them.
b. Circumstances under Which Duplicates Are Inadmissible
Duplicates are inadmissible if there is a genuine dispute over the original’s authenticity
or it would be otherwise unfair to admit a duplicate. If the opposing party raises a
genuine issue about whether a document is a forgery, the proponent must produce
the original. Similarly, if a duplicate is incomplete or illegible, a court may find that it is
unfair to admit the duplicate and require the proponent to produce the original. [Fed.
R. Evid. 1003; Ball v. A.O. Smith Corp., 451 F.3d 66, 71 (2d Cir. 2006); United States v.
Leight, 818 F.2d 1297 (7th Cir. 1987).]
c. Digitally Enhanced Duplicates
A digitally enhanced photograph or video may be considered a duplicate of the
original photograph or video if the enhancements do not affect the accuracy of the
substance of the image itself. Digital enhancements may include enlarging the image,
adjusting brightness or contrast, or slowing time-lapse recordings to normal speed.
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[Fed. R. Evid. 1001(e), 1003; United States v. Seifert, 351 F. Supp. 2d 926 (D. Minn.
2005).]
2. Admissibility of Other Evidence of Content If Original Is Unavailable or
Collateral Evidence
The contents of a writing, recording, or photograph may be proven by testimony or other
methods if any one of the following occurs:
• the original is lost or destroyed through no bad faith of the party seeking to prove its contents;
• the original cannot be obtained through a judicial process, such as a subpoena;
• the adverse party controls the original and after being given reasonable notice to produce the
original, fails to do so; or
• the document is collateral evidence, i.e., not closely related to a controlling issue in the case.
If failure to produce the original is explained satisfactorily by one of the above four
circumstances, secondary evidence is admissible to prove the contents of the original. No
particular form of secondary evidence is required, and the rule does not establish any
hierarchy or ranking of the different types of secondary evidence. Rather, the rule relies
upon the parties’ natural instincts in the adversarial process to present the best evidence
available to persuade the factfinder. [Fed. R. Evid. 1004(a)-(d) advisory committee’s note.]
3. Copies of Public Records
A party seeking to prove the content of an official public record or of a document
recorded and filed in a public office as authorized by law may do so with a copy under
Rule 1005 of the FRE, provided the document is otherwise admissible and (1) is certified
as correct under Rule 902(4) of the FRE by the custodian of the document or is selfauthenticating or (2) is certified by a witness who compared the copy with the original. If
no such copy can be obtained by reasonable diligence, the party may use other evidence
to prove the content of the public record, as permitted under Rule 1004. [Fed. R. Evid.
902(1)-(4), 1004, 1005.]
4. Testimony of the Adverse Party to Prove Content
A party seeking to prove the content of a writing, recording, or photograph may do so by
using the testimony, deposition, or written statement of the party against whom the
evidence is being offered. In this situation, the proffering party is not required to produce
the original document. Unlike the rule regarding secondary evidence of a document’s
content, this rule does not require an account of the original ( i.e., an explanation of why
the original is unavailable or collateral evidence). [See Fed. R. Evi d. 1004, 1007.]
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Summaries
A party seeking to prove the content of a writing, recording, or photograph may use a
summary, chart, or calculation to prove the content if the writing, recording, or photograph is
so voluminous that it cannot be conveniently examined in court. However, if a party avails
itself of this rule, the party must make the originals—or duplicates—available for examination,
copying, or both, at a reasonable time and place, regardless of whether the opposing party
has made a discovery request for the underlying mate rials. Failure to do so will render the
summary inadmissible. The court may order the originals or duplicates to be produced, and if
they are unavailable, the summary will be deemed inadmissible. [Fed. R. Evid. 1006; United
States v. Modena, 302 F.3d 626 (6th Cir. 2002); Amarel v. Connell, 102 F.3d 1494 (9th Cir.
1996); United States v. Miller, 771 F.2d 1219 (9th Cir. 1985).]
1. Unavailable Original—Relationship to Rule 1004
Summaries may be admissible as other evidence of the content of an unavailable writing,
recording, or photograph. In that case, the requirements of the rule for admitting
summaries are inapplicable, but a party must account for the absence of the original
under Rule 1004 of the FRE. [Fed. R. Evid. 1004, 1006; see Admissibility of Other
Evidence of Content If Original Is Unavailable or Collateral Evidence , supra.]
2. Inadmissible Original
If the original writing, recording, or photograph would be inadmissible at trial, the
summary is also inadmissible. In other words, summaries must be based upon admissible
evidence. [Fed. R. Evid. 1006; United States v. Milkiewicz, 470 F.3d 390 (1st Cir. 2006).]
3. No Numerical Threshold Established for Voluminous Originals
There is no specific numerical threshold that writings, recordings, or photographs must
meet to be considered so voluminous that their content may be proved by summary
evidence. There is also no requirement that it be literally impossible to review all of the
writings, recordings, or photographs in court before a summary may be allowed to prove
their content. The rule allowing the use of a summary to prove content requires only that
the writings, recordings, or photographs be voluminous, and that in-court examination be
inconvenient. [Fed. R. Evid. 1006; United States v. Bray, 139 F.3d 1104 (6th Cir. 1998);
United States v. Scales, 594 F.2d 558 (6th Cir. 1979).]
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4. Requirements for Summary’s Contents
To be admissible, summary evidence must accurately reflect the underlying voluminous
originals. The summary must present the underlying information correctly in a way that is
neither prejudicial nor misleading. [Fed. R. Evid. 611(a), 1006; United States v. Ogba, 526
F.3d 214 (5th Cir. 2008); United States v. Janati, 374 F.3d 263 (4th Cir. 2004); United
States v. Taylor, 210 F.3d 311 (5th Cir. 2000); United States v. Bray, 139 F.3d 1104 (6th
Cir. 1998).]
5. Procedures for Admitting Summary into Evidence
Typically, to admit a summary into evidence, a party presents the testimony of a witness
who made or supervised the creation of the summary. This witness should be able to
testify about the information upon which the summary is based and the methods used t o
prepare and summarize the information. However, the witness is not required to be an
expert in the relevant subject matter. [Fed. R. Evid. 1006; Colón-Fontánez v. Municipality
of San Juan, 660 F.3d 17 (1st Cir. 2011).]
6. Difference between Demonstrative and Summary Evidence
Demonstrative evidence is any physical evidence that was not a part of the controversy
but is used to illustrate or explain a witness’s testimony, such as a model of a crime scene
or a knife similar to the alleged murder weapon. Demonstrative evidence is not admissible
as substantive evidence; rather, it is only admissible to help explain a witness’s testimony
or other admitted evidence. Because it is not substantive evidence, demonstrative
evidence is not permitted in the jury room during deliberations. In contrast, a summary
offered to prove content because the original is too voluminous to be conveniently
examined in court is admissible as substantive evidence. Because summaries offered to
prove content are admitted as substantive evidence, they are permitted in the jury room
during deliberations. [Fed. R. Evid. 1006; United States v. Buck, 324 F.3d 786 (5th Cir.
2003).]
7. Functions of the Court and Jury
The court generally determines whether a party seeking to prove the contents of a
writing, recording, or photograph may do so through secondary evidence or summaries,
charts, or calculations under FRE Rules 1004 and 1005. However, in a jury trial, the jury
determines issues concerning whether:
• a writing, recording, or photograph ever existed;
• a writing, recording, or photograph produced at trial is the original; or
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• secondary evidence of content accurately reflects the content.
[See Fed. R. Evid. 104(a)-(b), 1008.]
Completeness Rule
The rule of completeness, codified in Rule 106 of the FRE, provides that if a party introduces
all or part of a writing or a recorded statement, the opposing party may require the
contemporaneous introduction of any other part of that statement or any other writing or
recorded statement if the judge determines that in fairness, the evidence ought to be
considered at the same time. The rule of completeness seeks to ensure that statements are
not rendered misleading by being taken out of context when presente d to the jury. By
requiring that any context needed for fairness be admitted at the same time as the rest of the
statement sought to be introduced, the rule also provides a more effective solution for
written and recorded statements than simply waiting until cross-examination or another later
point in the trial. [Fed. R. Evid. 106 advisory committee’s note; Fed. R. Evid. 611(a); Fed. R.
Civ. P. 32(a)(6) (applying rule of completeness to depositions used in court proceedings).]
1. Rule Applicable to Written or Recorded Statements, Not Oral Statements
The rule of completeness applies when a party seeks to introduce all or part of a written
or recorded statement, but not an oral statement. Therefore, if a witness who was party
to a conversation testifies to portions of that conversation on direct examination, the
opposing party must usually wait until cross-examination to elicit the remainder of the
conversation. However, courts will still require a party testifying about an oral statement
to present the substance and effect of the statement’s context fai rly. Some courts have
interpreted their authority to do so as an extension of Rule 106 of the FRE to oral
statements. Other courts cite Rule 611(a) of the FRE, which gives courts the right to
exercise reasonable control over the mode of presenting evidence to make those
procedures fair and effective for determining the truth. [Fed. R. Evid. 106, 611(a); United
States v. Castro, 813 F.2d 571 (2d Cir. 1987); 21A Charles Alan Wright, Arthur R. Miller &
Victor James Gold, Federal Practice and Procedure Evidence § 5074.1 (3d ed. & Supp.
2022).]
2. Types of Contextual Evidence
The additional evidence that may be introduced may include other portions of the same
statement or recording, or any other written or recorded statement. A trial judge has the
discretion to similarly compel testimony for completion purposes. Rule 106 of th e FRE
does not expressly require that the additional evidence being introduced for
completeness be otherwise admissible. Some federal courts have imposed this
requirement, concluding that Rule 106 is a rule of admissibility rendering otherwise-
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inadmissible evidence admissible. Other courts have disagreed, concluding that Rule 106
is simply a rule of timing dictating that some otherwise-admissible evidence must be
admitted, for the sake of fairness, when a party seeks to introduce an initial statement or
portion of a statement. [Compare United States v. Woolbright, 831 F.2d 1390 (8th Cir.
1987) (concluding that Rule 106 did not allow the introduction of hearsay evidence), with
United States v. Garcia, 530 F.3d 348 (5th Cir. 2008) (opining that whether Rule 106
allows for the introduction of otherwise inadmissible evidence remains unsettled), and
United States v. Sutton, 801 F.2d 1346 (D.C. Cir. 1986) (concluding that Rule 106 permits
the admission of otherwise inadmissible evidence when fairness dictates).]
3. Circumstances Requiring Introduction of Contextual Evidence
Federal courts apply a fairness standard in determining whether the rule of completeness
requires additional contextual evidence. Fairness requires the introduction of another
portion of a statement, or any other writing or recorded statement, if (1) it is necessary to
explain the introduced portion, (2) it is necessary to place the introduced portion in
context, (3) it is necessary to avoid misleading the jury, or (4) fairness dictates that the
two pieces of evidence should be considered in concert. [United States v. Branch, 91 F.3d
699 (5th Cir. 1996).]
Example:
In a civil-rights action for excessive force in a juvenile-detention center, the defendant
county introduced into evidence most of the detention center’s logbooks covering the
juvenile’s time at the center. Under the rule of completeness, the court allowed the
introduction of the other logbooks covering the remainder of the juvenile’s time at the
center, which indicated that the juvenile was injured while at the center. Given that the
defendant was able to introduce certain logbooks, fairness dictated that the court should
not exclude only those logbooks that were harmful to the defendant’s case. [ See Flores v.
Cameron Cty., Tex., 92 F.3d 258 (5th Cir. 1996).]
4. Procedure for Requesting Introduction of Contextual Evidence
The opposing party must request the introduction of the other evidence
contemporaneously with the introduction of the statement. The opponent of the initial
statement must show that the remainder of the statement, or a related statement, is
relevant to an issue in the case (i.e., it has the tendency to make a fact of consequence in
determining the action more or less probable than it would be without the evidence). The
opponent must also establish that fairness dictates admission of the remainder of the
statement or a related statement. [Fed. R. Evid. 106, 611(a); United States v. Soures, 736
F.2d 87 (3d Cir. 1984).]
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V. Hearsay and Circumstances of Its Admissibility
Hearsay is an out-of-court statement, or nonverbal assertive conduct, offered to prove the truth of
the matter asserted. Because a hearsay statement is not made under oath, in the presence of a
factfinder, or subject to cross-examination, it is seen as unreliable and is presumptively
inadmissible. An out-of-court statement may nevertheless be admitted if (1) it is not offered for
the truth of the matter asserted, (2) it falls under an exemption to or exclusion from the definition of
hearsay in Rule 801 of the FRE, or (3) it falls under an enumerated hearsay exception in Rules 803
(usually applicable regardless of the declarant’s availability), 804 (only applicable to unavailable
declarants), or 807 of the FRE. Even if a statement is admissible because it is not hearsay or
qualifies under an exemption or exception, a c ourt must still evaluate its admissibility under the
remaining rules of evidence (e.g., its relevance under Rule 401 and the degree to which its
probative value substantially outweighs its prejudicial effect under Rule 403). [Fed. R. Evid. 80104, 807.]
Definition of Hearsay
Rule 801 of the FRE defines hearsay and also exempts some types of out -of-court
statements made by witnesses and party-opponents from the definition. [Fed. R. Evid. 801.]
1. What is Hearsay
There are three main components to the common definition of hearsay. Hearsay is (1) an
out-of-court (2) statement (or nonverbal assertive conduct) (3) offered for the truth of the
matter asserted. Therefore, to understand whether hearsay is at issue, one must know
what the statement is and how the offering party, or proponent, plans to use the
statement in court. Some out-of-court statements not offered for the truth of the matter
asserted are nonhearsay statements.
a. An Out-of-Court
The individual or entity who made the out-of-court statement is called the declarant.
The declarant must make the statement outside the current trial or proceeding.
Therefore, most technically, hearsay is not just an out-of-court statement, but an outof-the-present-court statement. [Fed. R. Evid. 801(a)-(c); 30B Charles Alan Wright,
Arthur R. Miller & Victor James Gold, Federal Practice and Procedure Evidence § 671315 (3d ed. & Supp. 2022).]
b. Statement
A statement includes oral or written statements, as well as nonverbal conduct that the
actor intended to serve as an assertion. For example, a person who shakes her head
yes or no in response to a question or who points to identify a person when asked has
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engaged in nonverbal conduct intended as an assertion. [Fed. R. Evid. 801(a) -(c); 30B
Charles Alan Wright, Arthur R. Miller & Victor James Gold, Federal Practice and
Procedure Evidence § 6713-15 (3d ed. & Supp. 2022).]
Example:
A man brought his motorcycle to a mechanic for routine maintenance. As part of the
service, the mechanic examined the motorcycle’s brake system. When the mechanic
finished servicing the motorcycle, he texted the man and advised him that when he
picked up the motorcycle, he would need to schedule another appointment for brake
repair and the mechanic would order the parts in the meantime. When the man
arrived to pick up his motorcycle, he asked, the mechanic, “Is my bike safe to ride?”
The mechanic responded by giving the man a thumbs up. The facts demonstrated that
the mechanic intended his nonverbal conduct, the thumbs up, to be an assertion that,
in his opinion, the motorcycle was safe to ride. Therefore, the thumbs -up gesture was
hearsay and was inadmissible to prove the truth of the matter asserted, namely that
the motorcycle was safe to ride.
Compare:
A homeowner hired a technician to repair her malfunctioning motorized garage -door
opener. After the technician completed the repair, he presented the homeowner with
an invoice. As the homeowner was writing a check to pay the invoice, she asked the
technician, “Is the garage door safe to operate?” Although the FRE do not define what
constitutes an assertion, for more than 150 years, evidence scholars have agreed that
an assertion simply means to say that something is so. Under this definition, the
homeowner’s question about whether the garage door was safe to operate was not an
assertion. Accordingly, the question was not hearsay.
c. Offered for the Truth of the Matter Asserted
To constitute hearsay, an out-of-court statement must be offered for the truth of the
matter asserted. Thus, one cannot know if there is a hearsay issue or not without also
analyzing the purpose for which the offering party seeks to introduce the out-of-court
statement. A statement is offered for the truth of the matter asserted if there is a
match between the reason the offering party or proponent introduced the statement
and the assertion in the statement itself. For example, if a witness testifies that the
declarant said, “The light was red when the defendant drove through it,” and the
proponent is using the statement to prove that the light was red when the defendant
drove through it, then the statement is being offered for the truth of the matter
asserted. However, if the proponent is offering the statement to prove that the
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declarant is not colorblind, then the statement is not being offered for the truth of the
matter asserted. [Fed. R. Evid. 801(c).]
d. Nonhearsay Statements Not Offered for the Truth of the Matter
Asserted
Some statements, even though made out of court, are not hearsay because they are
not being introduced for the truth of the matter asserted and thus do not meet the
definition of hearsay. For these statements, the court still must determine under Rule
403 of the FRE if the probative value of a statement is substantially outweighed by
the chance that the jury may interpret the statement as pro of of the matter asserted.
[See Fed. R. Evid. 801(c).]
Statements Offered to Prove the Fact of the Utterance
A statement offered simply to prove that the statement was made, and not to
prove the substance of the statement, is not hearsay.
Statements Offered for Impeachment Purposes
A statement offered solely to impeach a witness and not to prove the truth of the
matter asserted is not hearsay. [See Impeachment, Contradiction, and
Rehabilitation, supra.]
Statements Offered as Verbal Acts
A statement offered because the statement itself has some independent legal
significance, in that it triggers certain rights or liabilities, is not hearsay. These
types of statements are known as verbal acts. A verbal act is not hearsay because
it is being offered because of the effect it had in triggering a legal right or liability,
and not for the truth of the matter asserted.
Example:
A case involved a challenge under the Dormant Commerce Clause to
Pennsylvania’s wholesale price floors that shielded Pennsylvania businesses from
more efficient out-of-state competitors. The plaintiff, an out-of-state milk dealer,
could introduce its employees’ testimony regarding offers that Pennsylvania milk
dealers made to them. The offers were admissible because the statements
themselves had independent legal significance, in that they constituted offers to
enter into contracts. [See Cloverland-Green Spring Dairies, Inc. v. Pa. Milk Mktg. Bd.,
298 F.3d 201 (3d Cir. 2002).]
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Statements Offered to Show the Effect on the Hearer or Reader
A statement offered to show that the statement had some effect on the hearer or
reader, but not for the truth of the matter stated, is not hearsay.
Statements Offered to Show the Declarant’s State of Mind
A statement offered to demonstrate the declarant’s state of mind, but not for the
truth of the matter asserted, is not hearsay. This example of nonhearsay is
functionally equivalent to the state-of-mind hearsay exception. [See Fed. R. Evid.
803(3); Statements of Mental, Emotional, or Physical Condition, infra.]
Example:
A defendant was on trial for knowing possession of a stolen gaming console. The
defendant claimed that he had received the console as a gift from a friend, who
has disappeared. The defendant sought to testify that his friend had told him that
she had received the console as a gift from her mother. The defendant sought to
offer the friend’s statement as evidence that the defendant thought that the friend
owned the console. In other words, the defendant sought to offer the friend’s
statement as evidence that the defendant did not know that the console was
stolen. Because the defendant was charged with knowing possession of a stolen
gaming console, his state of mind was relevant. Therefore, the friend’s statement
was not being offered to prove its truthfulness. The statement was only being
offered to prove the defendant’s state of mind. Accordingly, the statement was not
hearsay.
Statements Offered as Evidence of Association
A statement offered to prove that the declarant and the listener/recipient are
associated in some way is not hearsay. A Rule 403 analysis may be particularly
important before such a statement is deemed admissible, given what the content
of the statement may be.
Example:
A defendant was on trial for conspiracy to sell drugs. After a Rule 403 analysis, the
court permitted the prosecution to introduce a recording of the defendant talking
to another individual allegedly involved in the conspiracy. The recording was not
introduced to prove what the defendant actually said, but rather to prove that the
defendant and the other individual were associated in some way, which tended to
help the prosecution’s conspiracy case.
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2. Prior Statements by Witness
In addition to defining hearsay, Rule 801 of the FRE also excludes some out -of-court
statements from the definition. Some out-of-court statements made by a declarantwitness meet the definition of hearsay but are explicitly exempted from the hearsay
definition in Rule 801 and deemed not hearsay if the statements meet certain criteria.
Specifically, some prior statements of a declarant-witness are exempted because the
declarant-witness is at trial and able to be cross-examined about the prior statement, and
some statements of a party-opponent are exempted because the party has the
opportunity to explain, clarify, or diminish the importance of the statement at trial. [Fed.
R. Evid. 801(d).]
a. Declarant-Witness’s Prior Inconsistent Statement
A declarant-witness’s prior, out-of-court statement is not hearsay and is admissible to
prove the truth of the matter asserted if (1) the witness testifies and is now crossexaminable regarding the statement, (2) the prior statement is inconsistent with the
declarant-witness’s present testimony, and (3) the prior statement was made under
penalty of perjury in a prior proceeding or deposition. A prior inconsistent statement
that does not meet these criteria may still be admissible for impeachment purposes.
[Fed. R. Evid. 801(d)(1)(A); see Inconsistent Statements and Conduct, supra.]
b. Declarant-Witness’s Prior Consistent Statement
Rule 801(d)(1)(B) of the FRE imposes extra requirements for introduction of prior
consistent statements. Without these additional requirements, it would be very easy to
contrive a statement prior to trial only to use it at trial as a “consistent” statement to
improperly bolster the declarant-witness’s credibility. A declarant-witness’s prior, outof-court statement is not hearsay and is admissible to prove the truth of the matter
asserted if (1) the declarant-witness testifies and is now cross-examinable regarding
the statement, (2) the prior statement is consistent with the declarant-witness’s
present testimony, (3) the prior statement was made before the alleged motive to
fabricate arose, and (4) the prior statement is offered to rebut an allegation of recent
fabrication or improper influence or motive, or to rehabilitate the declarant-witness’s
credibility when attacked on other grounds. [Fed. R. Evid. 801(d)(1)(B); see Tome v.
United States, 513 U.S. 150 (1995).]
c. Declarant-Witness’s Prior Statement of Identification
A declarant-witness’s prior, out-of-court statement is not hearsay if (1) the declarantwitness testifies and is now cross-examinable regarding the statement, and (2) the
prior statement identified a person that the declarant-witness perceived earlier. [Fed.
R. Evid. 801(d)(1)(C).]
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Examples:
(1) A defendant was charged with attempted murder following his assault of a
correctional counselor in a federal prison. Several weeks after the attack, the
counselor was able to identify the defendant as the attacker from a photographic
array. At trial, the counselor could not remember the earlier identification. However,
the prior identification was still admissible as nonhearsay because the counselor
testified and could be cross-examined at trial. [United States v. Owens, 484 U.S. 554
(1988).]
(2) A defendant was on trial for attempted murder for allegedly beating the victim,
handcuffing him to a fence post, and leaving him there, unconscious, to die. Although
the victim testified that he could not remember who attacked him, he testified that he
recalled that, moments before he lost consciousness, he told the bystander who found
him that the defendant had been the attacker. The prosecution moved to strike the
victim’s testimony about his attacker’s identity on the ground that it was inadmissible
hearsay. FRE 801 expressly excludes from the definition of hearsay a declarant’s prior
statement identifying someone the declarant perceived earlier, provided the declarant
testifies and is subject to cross-examination about the prior identification. Therefore,
here, because the victim was subject to cross-examination, his statement of prior
identification was excluded from the definition of hearsay and was admissible.
3. Statements Attributable to Party-Opponent
A statement by an opposing party is not hearsay if the statement is offered against the
party who made the statement. This exemption is very broad and covers almost any
relevant statement made by an opposing party or a representative of the party. The
statement may have been made in an individual or representative capacity and need not
carry any additional guarantees of trustworthiness. Thus, the statement need not be
against interest, made under oath, or offered for a particular enumerated purpose. [Fed.
R. Evid. 801(d)(2).]
Examples:
(1) At the trial of an employment dispute, the employee sought to testify about what the
employer had said to her during their private conversation, which the employee had
secretly recorded on her mobile phone. What the employer said to the employee, even
privately, was a statement of a party-opponent. Therefore, the recorded conversation
was admissible.
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(2) A secretary was called as a witness in a civil fraud case. At trial, the secretary testified
falsely that she had never seen anyone destroying incriminating documents. As a result,
the secretary was charged with perjury. At the secretary’s perjury trial, she again testified
that she had never seen anyone destroying incriminating documents. In rebuttal, the
prosecutor sought to have a witness testify that, after the civil trial ended, the secretary
had privately admitted to the witness that she had seen the destruction of numerous
incriminating documents. The secretary’s admission to the witness that the secretary had
known about the destruction of the documents was a statement of a party -opponent.
Therefore, the statement was admissible.
(3) A cyclist sued a defendant corporation for injuries the cyclist received when she was
struck by a truck owned by the defendant and driven by its employee, who was making
deliveries for the defendant. The day after the accident, the employee visited the cyclist
in the hospital and said, “I’m sorry for what I did.” At trial, the cyclist testified about what
the defendant’s employee had said to her when he visited her in the hospital. The
cyclist’s testimony about the defendant’s employee’s statement was a dmissible as a
statement of a party-opponent because it was a statement by a party’s agent concerning
a matter within the scope of employment made during the existence of the relationship
and was being offered against a party.
a. Personal Knowledge Not Required
For a statement by an opposing party to be admissible, the opposing party who made
the statement need not have personal knowledge of the contents of the statement . The
statement is admissible if offered against that party, regardless of whether the party
had personal knowledge of the matter when the statement was made. This is an
exception to the general rule that the testimony of lay witnesses (whether offered liv e
and in-person or via out-of-court statements) must be supported by personal
knowledge. [Fed. R. Evid. 801 advisory committee’s note.]
Example:
A plaintiff sued a defendant after the defendant’s wolf bit the plaintiff’s small child.
After the bite occurred, the defendant’s employee, who was caring for the wolf, left a
note for the defendant stating that the wolf bit the child. The plaintiff could introduce
the note into evidence as a statement by a party-opponent, even though the
employee did not actually see the wolf bite the child and thus had no personal
knowledge of the bite. [Adapted from Mahlandt v. Wild Canid Survival & Research Ctr.,
Inc., 588 F.2d 626 (8th Cir. 1978).]
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b. Adoptive Admission
An adoptive admission is a statement made by another person in which a party has
manifested an adoption or belief in its truth. The hearsay exception for statements by a
party-opponent includes admissions made by others and adopted by the party opponent. Adoption may occur (1) explicitly; (2) if the other person was authorized to
speak about the subject matter on the party’s behalf; or (3) if the other person was
the party’s agent or employee, and the subject matter was within the scope of that
agency or employment. [Fed. R. Evid. 801(d)(2)(B)-(D).]
Foundation Required to Admit Adoptive Admission
A party seeking to introduce an adoptive admission made by one authorized to
speak or by an agent or employee must independently establish the declarant’s
authority to speak on behalf of the opposing party or the existence or scope of the
employment or agency relationship. [Fed. R. Evid. 801(d)(2)(C)-(D).]
Silence as Adoption
Silence may be admissible as an adoptive statement. For example, silence in
response to an accusation may be admissible if a reasonable person would have
responded by denying the accusation. [See, e.g., United States v. Ward, 377 F.3d
671 (7th Cir. 2004).]
Example:
During a sentencing hearing in federal court, the federal court relied upon a state
court’s characterization of the defendant’s prior burglary in concluding that the
defendant was an armed career criminal. The state court had summarized the
defendant’s prior burglary in a plea colloquy at which the defendant was present.
The defendant had multiple opportunities to correct or object to the state court’s
characterization of the burglary; however, the defendant remained silent. By
remaining silent, the defendant adopted the state court’s characterizations. This
made the state court’s characterizations admissible in the federal sentencing
proceeding under the hearsay exemption in Rule 801(d)(2) of the FRE for adoptive
admissions by a party-opponent. [United States v. Miller, 478 F.3d 48 (1st Cir.
2007).]
c. Coconspirator Statements
A statement made by the party’s coconspirator during and in furtherance of the
conspiracy is exempted from the hearsay definition if the statement is offered against
the party. [Fed. R. Evid. 801(d)(2)(E).]
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Admissible in Civil and Criminal Cases
Statements made by a party’s coconspirator are exempted from the hearsay
definition in both criminal and civil cases, regardless of whether the party is
charged with conspiracy.
Foundation Required for Coconspirator Statements
A party seeking to introduce a statement under this exemption must independently
establish, by a preponderance of the evidence, the existence of the conspiracy and
the party’s participation in it. Note that this exemption does not apply to
statements made by one party against a mere coparty if the coparty is not a
coconspirator.
Present Sense Impressions and Excited Utterances
Rule 803 of the FRE defines many exceptions to the hearsay rule, under which out-of-court
statements are admissible for the truth of the matter asserted because the circumstances
under which they were made were accompanied by some independent guarantee of reliability.
Except for past recollections recorded, the exceptions defined in Rule 803 apply regardless of
whether the declarant is available as a witness in the current court proceeding.
1. Present Sense Impression
A statement describing or explaining an event or condition, made while or immediately
after the declarant perceived it, is admissible as a present sense impression. A statement
like this is reliable because the event is occurring in real time while the statement is being
made, so the declarant has no chance to fabricate the statement. For this same reason,
statements made after a declarant has time to think are not present sense impressions,
because they are not spontaneous. Similarly, statements made by the declarant for a
particular reason are not present sense impressions. The event or condition need not be
startling or exciting nor elicit any specific type of reaction in the declarant. However, the
event or condition and the statement must be substantially contemporaneous. Often,
courts will require some sort of corroboration of the statement. [Fed. R. Evid. 803(1).]
Examples:
(1) A physician suing for defamation sought to introduce an out -of-court statement from
a declarant, who allegedly said that the defendant was “downstairs right now and just told
me [the plaintiff] paralyzed four patients.” The district court properly excl uded the
declarant’s statement because the declarant testified in court that he made the statement
for a particular reason, namely, because he was concerned about the physician’s
reputation. Statements made after deliberation or for a particular reason are not present
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sense impressions because they are not spontaneous. [Schindler v. Seiler, 474 F.3d 1008
(7th Cir. 2007).]
(2) In a criminal prosecution for interstate transportation of a stolen vehicle, the
prosecution sought to introduce testimony from a state trooper about a report from an
unidentified caller who told the trooper he had seen two shirtless men walking away f rom
an abandoned truck and attempting to hitch a ride. The caller’s statements were not
admissible under the present-sense-impression exception to the hearsay rule, because
there was no way to know how much time had elapsed between the caller’s observation s
of the men and the phone call to the state trooper. Specifically, there was no way to tell
if the call had been made within the very brief time permitted in Rule 803(1) of the FRE
for a statement to qualify as a present sense impression. [United States v. Cain, 587 F.2d
678 (1979).]
Compare:
A motorist sued a truck driver for injuries the motorist suffered in a hit -and-run accident.
At trial, the motorist called a witness who sought to testify that he saw the accident and
that as the truck sped away, the motorist dictated to the witness the co mpany name and
phone number that were displayed on the truck’s cab. The motorist’s dictation of the
truck’s company name and phone number qualified as a present sense impression
because it described the information while the motorist was perceiving it.
2. Excited Utterance
A hearsay statement relating to an exciting or startling event or condition, made while the
declarant was under the stress of excitement that the event or condition caused, is
admissible under the excited-utterance exception to the hearsay rule. [Fed. R. Evid.
803(2).]
Example:
A pedestrian sued a motorist for personal injuries sustained when the motorist struck the
pedestrian in a crosswalk. At trial, the pedestrian testified that the motorist had driven
directly into her without stopping while the pedestrian was in the crosswal k. The
pedestrian was not asked about whether she had made any statements before, during, or
immediately following the incident. The pedestrian’s lawyer sought to call a witness to
testify that as the motorist was speeding away from the scene, the pedestri an screamed,
“He hit me! Stop him!” The pedestrian’s statements, “He hit me! Stop him!” were
statements that relate to a startling incident, being hit by a car, that were made while the
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pedestrian was under the stress of the excitement from the incident. Therefore, the
statements qualified as excited utterances and were admissible.
Compare:
A pedestrian sued a motorist alleging that the motorist had struck and injured the
pedestrian while speeding through a parking lot. The pedestrian was transported to the
hospital by ambulance, accompanied by her brother. At trial, the pedestrian called an
emergency-room physician to testify that when the physician asked the pedestrian’s
brother what had happened, the brother wearily replied, “Four hours ago, I saw my sister
get run over by a driver who was speeding like a lunatic.” The excited -utterance
exception to the hearsay rule requires that the declarant make the statement while under
a continuous state of excitement or stress resulting from an exciting or stressful event or
situation. Here, because four hours passed between the accident and the brothe r’s
statement, and the brother wearily made the statement, it was unlikely that the brother’s
statement was made while he was still in a state of excitement or stress.
a. Utterance Need Not Be Contemporaneous with Event
Unlike the exception for present sense impressions, the hearsay statement does not
have to be made contemporaneously with the exciting or startling event; the declarant
just must still be excited or startled by the event when making the statement. Likely,
though not always, a statement admitted under this exception is made very soon after
the event. In general, a statement is not an excited utterance if the declarant has an
opportunity to reflect on the event, because it becomes difficult to show that the
declarant was still under the stress of excitement when the statement was made.
Excited utterances are considered reliable because the declarant’s emotional
excitement makes fabrication improbable. [Fed. R. Evid. 803(2).]
b. Subjective Standard for Whether Event Is Exciting or Startling
An excited utterance must arise from a subjectively exciting or startling event. The key
question is whether the declarant found the event startling or exciting, regardless of
whether an objectively reasonable person in the same situation would have the same
reaction. However, as a general matter, courts tend to presume that an objectively
startling event, like a fatal car crash, is sufficiently startling to trigger the exception.
Whether the event was exciting or startling is usually determined by evaluati ng the
declarant’s tone of voice and demeanor. Other relevant factors may include the
event’s timing, the declarant’s age, the event’s characteristics, and the substance of
the statement itself. [Fed. R. Evid. 803 advisory committee’s note; Biegas v. Quickway
Carriers, Inc., 573 F.3d 365 (6th Cir. 2009); 30B Charles Alan Wright, Arthur R. Miller
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& Victor James Gold, Federal Practice and Procedure Evidence § 6818 (3d ed. & Supp.
2022).]
Example:
A declarant had seen the defendant point a gun at another person’s head. The
declarant whispered to his girlfriend that the defendant had a gun. The defendant
attempted to argue that the whispered statement was not admissible under the
exception for excited utterances, because the declarant had whispered instead of
yelled, and therefore the event in question was not startling to the declarant.
However, whispering instead of yelling did not mean the declarant was not startled by
the defendant’s gun-wielding. The declarant likely whispered to avoid detection by the
defendant. Moreover, seeing someone point a gun at someone else’s head would likely
always be considered a startling event. [Adapted from United States v. Zuniga, 767 F.3d
712 (7th Cir. 2014).]
3. Statements That Qualify as Both a Present Sense Impression and an
Excited Utterance
Sometimes, a statement meets the requirements for admissibility as a present sense
impression and as an excited utterance. Accordingly, a court may admit the statement
under either, or both, exceptions to the hearsay rule.
Example:
A robber snatched a victim’s purse and fled. A bystander immediately called 911.
Moments later, a police officer arrived. The officer asked the bystander, who was pacing
and wringing her hands, to describe what she saw. She immediately responded, “He’s
about six feet tall. Short brownish hair, wearing jeans and a blue jacket.” Based on this
description, police apprehended the robber. At trial, because the bystander was
unavailable, the responding officer testified and repeated the bystander’s description of
the robber. The bystander’s description was admissible as a present sense impression
because she described the robber to the police officer when he arrived moments after
the incident. The bystander’s description was admissible as an excited utterance beca use
the bystander had just witnessed a purse snatching, which was a startling event, and her
description of the robber related to that event. Therefore, the bystander’s statement
could be admitted under either exception.
Statements of Mental, Emotional, or Physical Condition
Rule 803(3) of the FRE provides an exception for hearsay statements of the declarant’s thenexisting state of mind (e.g., motive, intent, or plan) or emotional, sensory, or physical
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condition (e.g., mental feeling, pain, or health). These types of statements are reliable because
a declarant has a unique perspective on his or her mental, emotional, or physical state. [Fed.
R. Evid. 803(3).]
1. Statement Must Relate to Present State (Not Memory or Belief)
For a statement of this type to be admissible, the condition has to exist when the
statement is made. The exception does not include statements of memory or belief to
prove facts remembered or believed. In other words, a statement indicating present state
of mind is admissible, but a statement indicating the reason for that state of mind is not
admissible.
Example:
A defendant was on trial for poisoning his wife. After the wife was poisoned, she stated,
“I feel nauseated, because my husband poisoned me.” The court permitted the
prosecution to introduce the first part of the wife’s out -of-court statement made after
she was poisoned: “I feel nauseated.” However, the court did not permit the prosecution
to introduce the latter part of the wife’s statement: “Because my husband poisoned me.”
The first part of the statement was a statement of a then-existing physical condition; the
second part of the statement was the declarant’s belief about the reason for that
condition and was not admissible. [See Shepard v. United States, 290 U.S. 96 (1933).]
Note: Statements of memory or belief are admissible if they relate to the validity or terms
of the declarant’s will. In litigation involving an estate, it can be difficult to determine the
true intent of the deceased testator. Rule 803(3) of the FRE enables fa ctfinders to more
easily determine a testator’s intent by allowing the use of statements of memory or belief
pertaining to the declarant-testator’s will. [See 30B Charles Alan Wright, Kenneth W.
Graham, Jeffrey Bellin, Federal Practice & Procedure Evidence § 6836 (3d ed. & Supp.
2022).]
2. Statements Referring to Declarant’s Future Intent Admissible
A statement referring to a declarant’s future intent is also admissible. For example, a
declarant’s hearsay statement regarding an intent or plan is admissible to show that the
declarant later acted in accordance with that intent or plan. Thus, a deceased declarant’s
hearsay statement that the declarant planned to leave town with another person is
admissible both to show that the declarant planned to leave town and to show that the
declarant left as planned.
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Example:
A man wrote a letter, stating that he expected to travel with his friend on a certain date
to a certain town. The friend died, and a body was found in the town named in the man’s
letter. In an action for life-insurance proceeds brought by the friend’s wife, there was a
question of whether the body found was that of the friend or of the man travelling with
him. The insurance company sought to introduce the letter to show that the man did
travel and that the body found was that of the man, and not his friend. The letter was
admissible to show the man’s present state of mind concerning his future intent to travel
to the town. This came to be known as the Hillmon Doctrine, named for the friend in this
1892 case. [Mutual Life Ins. Co. v. Hillmon, 145 U.S. 285 (1892).]
Statements for Purposes of Medical Diagnosis and Treatment
A hearsay statement that is made for purposes of receiving a medical diagnosis or treatment is
admissible if it is reasonably pertinent to the treatment and describes (1) medical history, (2)
past or present symptoms or sensations, (3) the symptoms’ inception, or (4) the symptoms’
general cause. This type of statement is reliable because a person making a statement for the
purpose of receiving medical treatment is unlikely to lie, as without the truth, the person will
not receive the proper medical care. [Fed. R. Evid. 803(4).]
Examples:
(1) A plaintiff sued a garage-door manufacturer for injuries she sustained when the door
collapsed onto the plaintiff. The plaintiff’s physician referred her to an orthopedist, who
diagnosed the plaintiff with an acute cervical strain and referred her to h er physician for
treatment. At trial, the plaintiff called the orthopedist to testify that when he had asked the
plaintiff how she was injured, she replied, “I was walking out of my garage when the garage
door fell on me, knocking me down.” FRE 803(4) permits the admission of an otherwise
inadmissible hearsay statement if it qualifies as a statement made for medical diagnosis or
treatment. Statements made to treating physicians, as well as statements made to other
medical professionals for evaluation or diagnosis, including medical professionals consulted
specifically for litigation, are admissible. Therefore, here, because the plaintiff’s statements to
the orthopedist were made for medical diagnosis, they were admissible.
(2) An insured sued her insurance company for nonpayment of benefits under her long -term
disability policy. Central to the dispute was the date on which the insured first experienced
the aneurysm that disabled her. The insured’s primary-care physician testified at trial that he
saw the insured on March 1, when the insured sought treatment for a persistent headache.
At that appointment, the insured completed a questionnaire on which she wrote, “Last week,
I got a terrible headache that persists.” The insured’s lawyer showed the questionnaire to the
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physician, who identified and authenticated the questionnaire. The insured sought to admit
the written statement into evidence. Because the insured was seeking medical attention, her
March 1 statement on her intake questionnaire about her symptoms qualifie d as an
admissible statement made for medical diagnosis or treatment.
1. Statements Not Made to Medical Professional or by Person Needing
Treatment
The statement does not have to be made to a medical professional to be admissible. For
example, a statement to a bystander is admissible provided it meets the other criteria.
Similarly, the statement does not have to be made by the person in need of medica l
treatment—a bystander making a statement for the person in need would qualify.
However, because the exception applies to statements made for the purpose of receiving
diagnosis or treatment, it generally does not cover statements made by a doctor to a
patient.
2. Statements about Present and Past Symptoms Reasonably Pertinent to
Treatment
Because this exception covers both present and past symptoms, it is broader than the
exception for statements of mental, emotional, or physical condition (which only covers
present conditions). Qualifying statements for medical diagnosis or treatment may
describe:
• medical history,
• past or present symptoms or sensation,
• the symptoms’ inception, or
• the symptoms’ general cause.
These statements are reasonably pertinent to medical diagnosis or treatment if (1) the
declarant’s motive in speaking is consistent with the purpose of the rule, and (2) it is
reasonable for the physician or health professional to rely on the statements for diagnosis
or treatment. Statements ascribing specific blame or giving the identity of the person
causing an injury do not usually fall within the exception, unless relevant to preventing
future injury or to the success of ongoing treatment. [See, e.g., United States v. Yazzie, 59
F.3d 807 (9th Cir. 1995); Statements of Mental, Emotional, or Physical Condition, supra.]
Example:
In a sexual-assault prosecution, the government sought to admit testimony from the
physician who had treated the victim after the attack. The victim, a minor, told the
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treating physician that a man had dragged her into the bushes and removed her clothes.
The victim’s statements to the physician were made for the purposes of obtaining medical
treatment and were admissible as a hearsay exception. The physician explained th at he
used the victim’s responses to determine where on the victim’s body the physician should
examine more closely. The physician’s questions focused on what happened, not who had
assaulted the victim. In responding, the victim-declarant’s motives were consistent with the
purposes of the exception, which was to facilitate treatment, not provide a fabrication. It
was reasonable for the physician to rely on the victim’s statements in treating the victim.
[United States v. Iron Shell, 633 F.2d 77 (8th Cir. 1980).]
Past Recollection Recorded
Ordinarily, a writing made outside of court is hearsay if it is offered for the truth of the
matters asserted in it. However, a witness may read into evidence a recollection recorded in a
hearsay writing if (1) the witness once knew the recorded information but lacks present
recollection of the matter at trial, (2) the record was made or adopted by the witness while
the matter was fresh in the witness’s mind, and (3) the record accurately reflects the personal
knowledge the witness once had at the time the record was made. The proponent of the
record may not offer the record itself as an exhibit, but the opposing party may. These types
of records are trustworthy, because the events were fresh in the witness’s mind when the
record was made and thus are more likely to be accurate than later testimony. [Fed. R. Evid.
803(5).]
Examples:
(1) A defendant was on trial for assault. During the investigating officer’s direct examination,
the prosecutor asked whether the defendant had said anything to the officer after being
arrested. The officer testified that she could not recall. In response, the prosecutor showed
the officer a handwritten document, which the officer identified as the notes she had made
shortly after arresting the defendant. The prosecutor asked, “Now do you remember what the
defendant said?” The officer responded “no” although she remembered that when she made
the notes, she recalled the statements clearly and wrote them down accurately. Although the
notes were hearsay, they were admissible under the recorded-recollection exception because
they concerned a matter about which the officer once had knowledge but no longer recalled
adequately to testify fully and accurately, they were made when the events were fresh in the
officer’s memory, and she testified that the notes were accurate.
(2) A witness reported seeing a defendant in a bank robbery. The witness told an FBI agent
that the defendant entered a white truck and gave the FBI agent the truck’s license plate.
The FBI agent noted the license-plate number in his investigative report. Both the FBI agent
and the witness testified at trial. In order to use the hearsay exception for past recollections
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recorded to testify about the license-plate number recorded in the FBI agent’s report, the
witness would have to testify that he reviewed the report when it was made and was satisfied
at the time that the report accurately reflected his belief about the license -plate number.
[Adapted from United States v. Booz, 451 F.2d 719 (3d Cir. 1971).]
1. Distinguishing Past Recollections Recorded from Refreshing a Witness’s
Recollections
Under the exception for past recollections recorded, the witness’s memory is not
refreshed, but the writing is read or introduced into evidence as substantive proof of the
information. In contrast, when refreshing a witness’s recollection with a document, the
document does not enter into evidence as substantive proof of the information it
contains; the substantive proof comes from the witness’s recollection of her pe rsonal
knowledge. [Fed. R. Evid. 612, 803(5); United States v. Riccardi, 174 F.2d 883 (3d Cir.
1949); but see Refreshing Recollection, supra (discussing the ability to use a writing to
refreshing a witness’s recollection under Rule 612).]
2. Record Made by Someone Other Than the Witness-Declarant
Records recording the declarant’s recollections that were made by someone else are
admissible under the hearsay exception for past recollections recorded if the witness
adopted the record while the subject matter was fresh in the witness’s mind. A recorded
recollection can be introduced if (1) the witness once knew the recorded information but
cannot recall it well enough to testify fully and accurately, (2) the record was adopted by
the witness when the matter was fresh in the witness’s memory, and (3) the record
accurately reflects the witness’s knowledge at the time it was made. [Fed. R. Evid. 803(5);
United States v. Wimberly, 60 F.3d 281 (7th Cir. 1995).]
3. Declarant Must Testify as a Witness
Even though the exception for past recollections recorded is found in Rule 803 of the
FRE, under which the availability of the declarant is supposedly irrelevant, the declarant
must testify as a witness in order to admit a hearsay statement under the excep tion for
past recollections recorded. In the case of a record created by someone other than the
declarant, either the maker or adopter of a recorded recollection must testify before the
recorded recollection can be read to the jury. [Newton v. E. Ryder Transp. Servs., Inc., 206
F.3d 772 (8th Cir. 2000); 30B Charles Alan Wright, Kenneth W. Graham, Jr., & Jeffrey
Bellin, Federal Practice and Procedure Evidence § 6853 (3d ed. & Supp. 2022).]
Business Records
A hearsay business record is admissible if the record:
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• was made at or near the time of the event;
• was made by, or based on information from, someone with knowledge acting in the regular course of
business;
• was kept in the course of a regularly conducted business activity; and
• was created as a regular practice of that business.
The record’s proponent must show that these elements are met by calling the custodian of
the records, calling a different qualified witness, or offering a certification. These types of
records are reliable, because entities have to keep accurate records to be successful,
regardless of any possibility of litigation. However, the court may exclude a business record if
the opponent shows that the source of the information, or the method or circumstances of
preparing the record, indicate a lack of trustworthine ss. [Fed. R. Evid. 803(6) advisory
committee’s note.]
Example:
Several senior executives of a corporation were charged with securities fraud. At trial, the
government called another employee of the corporation, to whom the prosecution had given
prosecutorial immunity, to authenticate handwritten notes that she had pre pared after
meetings of the corporation’s management team at which the alleged fraud was discussed.
The witness testified that she had prepared the notes on her own initiative to help her
remember what had transpired at the meetings. The government then of fered the notes into
evidence to establish what had happened at the meetings. The business -records exception
requires that it be a regular practice to make the records and that the records be kept in the
course of the business’s regularly conducted activity. Therefore, because the notes were
prepared on the witness’s own initiative to help her remember what had happened at the
meetings, the notes did not qualify as business records.
1. What the Business-Records Exception Covers
The scope of the business-records exception is very broad. Although referred to as the
business-records exception, the exception extends to entities that are not actual
businesses. It covers for-profit and not-for-profit businesses, including entities such as
schools, hospitals, churches, and sole proprietorships. The exception is broad enough to
cover opinions and diagnoses recorded in the ordinary course of business. The exception
is also broad enough to cover illegal records, such as the business records of a criminal
enterprise. However, business records are not admissible if prepared in anticipation of
litigation, as they lack the requisite trustworthiness. [Fed. R. Evid. 803(6)(B); Palmer v.
Hoffman, 318 U.S. 109 (1943); see Public Records, infra.]
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Note: Police records may be considered business records in civil cases, but not criminal
cases. [Fed. R. Evid. 803(8).]
2. Relationship to the Admission of Summaries under the Best-Evidence Rule
The best-evidence rule does not require that a summary of business records be kept in
the ordinary course of business. It requires only that the underlying records are kept in
the ordinary course of business. If the underlying records are admissible under the
exception for business records, the summary compiled later may also be admitted. [ See
Summaries, supra (discussing Rule 1006).]
3. The Absence of a Record of a Regularly Conducted Activity
The absence of a matter from a business record that is admissible under the business records exception may be used as evidence of the matter’s nonexistence if a record was
regularly kept for a matter of that kind (such that if the matter had occurred, one would
expect it to be recorded), and the opponent of the business record does not show that the
possible source of the information or any other circumstances indicate a lack of
trustworthiness. [Fed. R. Evid. 803(7).]
Examples:
(1) In a shareholder derivative lawsuit, the defendant board of directors could introduce
minutes of their board meetings under Rule 803(7) of the FRE to show that the board had
not been informed of certain matters. [United States v. Muñoz-Franco, 487 F.3d 25 (1st
Cir. 2007).]
(2) A patient sued a hospital for medical negligence, claiming that a hospital nurse failed
to administer critical medication prescribed by the patient’s treating physician during the
plaintiff’s hospitalization. At trial, to prove the nurse’s failure to a dminister the prescribed
medication, the patient called the medical-records custodian, who authenticated the
hospital’s record of the patient’s treatment, which contained no entry showing that the
medication at issue had been administered. The hospital record was hearsay but qualified
as a record of regularly recorded activity under FRE 803(6). The absence of a record of
regularly recorded activity is admissible under FRE 803(7) to prove the nonoccurrence of
a matter that ordinarily would have been recorded if it had occurred. Thus, the plaintiff
could use the absence of the entry to establish that the medication was not administered.
Public Records and Reports
Rule 803 of the FRE defines a number of exceptions for public and other similar records. Like
most of the other exceptions defined in Rule 803, the applicability of the exceptions does not
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depend on whether the declarant is available to testify as a witness in the current
proceeding. [Fed. R. Evid. 803(8)-(17).]
1. Public Records
A hearsay record or statement of a public office is admissible if it details:
• the activities of the office;
• a matter observed by a public official while under a legal duty to report, excluding matters
observed by law-enforcement officers if being offered in a criminal case; or
• in any civil case or a criminal case if offered against the government, findings resulting from a
legally authorized investigation.
These types of records are trustworthy, because it is assumed that a public official will
perform his duties properly. Further, it is unlikely that a public official will remember
details of the matter independently of the record. However, like the busines s-records
exception, public records are subject to exclusion by the court if the record’s source of
information or methods of preparation indicate lack of trustworthiness. For example,
public records may not be admissible if prepared in anticipation of lit igation. [Fed. R. Evid.
803(8).]
Example:
An insured sued her insurance company for nonpayment of benefits after her helicopter
crashed. The company based its nonpayment on a policy provision specifying that
insurance coverage was contingent on the helicopter’s compliance with all applicable
Federal Aviation Administration (FAA) safety-inspection requirements. At trial, the
company called an FAA field program manager, who was legally responsible for both
conducting the semiannually required helicopter safety inspections and maintaining the
inspection reports. The manager identified the helicopter’s inspection report, which
reflected that the helicopter had missed its two most recent safety inspections. Here, the
program manager had a legal duty to conduct the semiannually required safety
inspections and maintain the inspection reports. Therefore, the inspection reports
satisfied the requirement that they detailed a matter observed by a public official while
under a legal duty to report. Accordingly, the report was admissible under the public records exception to the hearsay rule.
a. Reports Prepared by Private Individuals
Hearsay reports prepared by private individuals are not considered records or
statements of a public office, even if an individual is required by law to file the report.
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[Fed. R. Evid. 803(8) advisory committee’s note; Lamphere v. Brown Univ., 685 F.2d
743 (1st Cir. 1982); Matthews v. United States, 217 F.2d 409 (5th Cir. 1954).]
b. Law-Enforcement Observations Offered in a Criminal Case: An
Exception to the Exception
Records of matters observed by law enforcement are generally excluded from the
public-records hearsay exception in criminal cases. In other words, these records
remain hearsay and are not covered by the exception. Most courts interpret this
carveout to apply only to records kept in adversarial situations, such as an
investigative report prepared in anticipation of criminal prosecution. In contrast,
routine, nonadversarial documents, like booking sheets, are admissible under the
public-records exception. However, some courts permit the introduction even of
adversarial records if they are offered to exculpate the defendant. [Fed. R. Evid.
803(8)(A)(ii); compare United States v. Dowdell, 595 F.3d 50 (1st Cir. 2010) (affirming
admission of police booking sheet as a public record because it was a routine,
nonadversarial record), with United States v. Smith, 521 F.2d 957 (D.C. Cir. 1975)
(concluding that certain police reports would be admissible under the exception for
public records when introduced at the defense’s request).]
c. Findings from a Legally Authorized Investigation Offered in a Criminal
Case
Findings from a legally authorized investigation are admissible in a criminal case under
the public-records exception only against the government. In other words, only the
defendant may introduce these types of findings under the exception; the government
may not. This limitation on the hearsay exception for public records stems from the
Confrontation Clause of the Sixth Amendment to the US Constit ution, which
guarantees a criminal defendant the right to cross-examine any witness against him.
Although the prosecution may not introduce the findings under the public-records
exception, the prosecution may be able to introduce the findings through the direct
testimony of an investigating officer, or by other nonhearsay means. [Fed. R. Evid.
803(8)(A)(iii); see Right to Confront Witnesses, infra.]
Example:
A hotel owner was charged with arson after a fire destroyed his struggling hotel. The
local police department’s arson specialist investigated the fire and prepared a written
report that detailed the specialist’s investigation and concluded that the fire ha d been
deliberately set using chemical accelerants. The specialist died prior to the hotel
owner’s trial. Accordingly, the prosecution sought to introduce the specialist’s written,
certified report. Although FRE 803(8) creates a hearsay exception for publi c records
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that would, under some circumstances, authorize the admission of a report of this
nature, the rule explicitly provides that this exception does not apply to “matter[s]
observed by law enforcement” or to “factual findings from a legally authorized
investigation” when offered by a prosecutor against a defendant in a criminal
prosecution. Therefore, the specialist’s report was inadmissible for use against the
hotel owner on this basis.
d. Comparison to the Exception for Business Records
Although some records may be admissible under both the business-records exception
and public-records exception, there are important distinctions. The public -records
exception, unlike the business-records exception, does not require that the record be
kept in the ordinary course of official business and does not require a qualified
witness to testify or provide an affidavit. [See Business Records, supra.]
2. Public Records of Vital Statistics
A record of a birth, death, or marriage is admissible if it is reported to a public office in
accordance with a legal duty. [Fed. R. Evid. 803(9).]
3. Absence of a Public Record
Testimony or a certification that a diligent search failed to disclose a public record is
admissible to prove that (1) the record does not exist, or (2) a matter did not occur, if the
public office regularly kept records for matters of that kind. If the prosecution in a
criminal case intends to use a certification under this exception, rather than testimony,
the prosecution must provide 14 days’ written notice in advance of trial. A criminal
defendant then has a chance to object to the use of a certificatio n (and instead, demand
that the official who prepared the certification testify live instead) within seven days of
receiving the notice. The diligence of the search required under this exception ensures
the reliability of any evidence of absence being admitted. This exception is similar to the
exception allowing for the admission of the absence of a business record. [Fed. R. Evid.
803(10); Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009) (approving notice-anddemand procedure in criminal cases in order to protect a criminal defendant’s rights
under the Confrontation Clause); see The Absence of a Record of a Regularly Conducted
Activity, supra; Right to Confront Witnesses, infra.]
Example:
The parties to a lawsuit contested whether the defendant was licensed by the state
Board of Examiners of Electrical Contractors (BEEC), the agency responsible for licensing
electrical contractors. The defendant testified that he was BEEC licensed. On rebut tal,
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the plaintiff offered a certification, bearing the BEEC’s secretary’s seal and signature,
stating that the secretary conducted a thorough search of the BEEC’s records, which
uncovered no record of a license having been issued to the defendant. The certific ation
was offered for the proper inference that if a license had been issued to the defendant, it
would have been recorded in the public record. The fact that no record was found was
probative evidence that a license was never issued to the defendant. Beca use the
certification was prepared by a public official, the secretary, and indicates, on its face,
that a diligent search of the records was conducted, the certificate was admissible.
4. Records, Certificates, and Statements Concerning Personal or Family
History
Rules 803(11), (12), and (13) of the FRE define exceptions for various familial and
religious records. Statements in these types of records tend to be trustworthy because
there is little incentive for religious organizations to fabricate records, and it is similarly
unlikely that a family would allow false records to be kept about it.
a. Records of Religious Organizations Concerning Personal or Family
History
Regularly kept religious records concerning birth, legitimacy, ancestry, marriage,
divorce, death, relationship by blood or marriage, or similar facts of personal or family
history are admissible. [Fed. R. Evid. 803(11).]
b. Certificates of Marriage, Baptism, and Similar Ceremonies
Statements of fact contained in certificates from ceremonies such as marriages,
baptisms, confirmations, bar mitzvahs, and the like are admissible. [Fed. R. Evid.
803(12).]
c. Family Records
A statement of fact about personal or family history contained in a family record, such
as a Bible, genealogy, chart, engraving on a ring, inscription on a portrait, or engraving
on an urn or burial marker is admissible. [Fed. R. Evid. 803(13).]
5. Records of Documents and Statements in Documents That Affect an
Interest in Property
A record of a document that creates or affects an interest in property is admissible if (1)
the record is admitted to prove the content of the original recorded document, along with
its signing and its delivery by each person who purports to have signed it; (2) the record
is kept in a public office; and (3) a recording statute authorizes recording documents of
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that kind in that office. This type of record is trustworthy given the prerequisites to filing
the document. Additionally, statements in these types of documents are admissible if the
matter stated was germane to the purpose of the document. A statement may be
inadmissible if later dealings with the property prove inconsistent with the truth of the
statement in the document. [Fed. R. Evid. 803(14)-(15).]
Example:
A deed granting a parcel of land contained a statement that the grantor was the heir of
the last record owner of the parcel. The statement was admissible under the hearsay
exception for statements in documents affecting an interest in property because the
statement was relevant to the conveyance of the parcel of land, which was the purpose
of the deed. [See Fed. R. Evid. 803 advisory committee’s note.]
6. Statements in Ancient Documents
Any statement contained in a document (1) that was prepared before January 1, 1998, and
(2) can be proven authentic is admissible. These types of statements are reliable, because
the age of the statement makes it likely that the statement was made well before the
controversy existed. The exception for ancient documents was amended effective
December 1, 2017; previously, the exception had encompassed authentic documents that
were at least 20 years old. [Fed. R. Evid. 803(16).]
7. Market Reports and Similar Commercial Publications
Market reports and similar commercial publications or compilations that are generally
relied on by the public or by people in a particular field are admissible. For example, a
listing of real estate sales may be admissible because it is used by real estate agents,
insurance agents, and appraisers in the c ourse of their occupations. These types of
records are considered trustworthy because if they are relied upon by large groups of
people—often paying customers—the party that compiles the records has an incentive to
ensure that the records are accurate. [Fed. R. Evid. 803(17); United States v. Cassiere, 4
F.3d 1006 (1st Cir. 1993).]
Learned Treatises
A statement in a treatise, periodical, or pamphlet is admissible for the truth of matter
asserted if (1) the statement is relied on by an expert witness on direct examination or called
to the expert’s attention on cross-examination, and (2) the publication is established as a
reliable authority. [Fed. R. Evid. 803(18).]
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1. Establishing a Publication as a Reliable Authority
A proponent may show that a treatise or other publication is a reliable authority by any
expert or by judicial notice. Learned treatises are authoritative works written by experts in
a particular field and are often peer-reviewed. Learned treatises include standards and
manuals developed by government agencies, industries, or professional organizations.
Learned treatises can span almost any topic, including law, history, medicine, engineering,
and art. For example, Physicians’ Desk Reference is a learned treatise on medicine, and
McCormick on Evidence is a learned treatise on evidence law. [Fed. R. Evid. 803(18);
Graham by Graham v. Wyeth Labs., 906 F.2d 1399 (10th Cir. 1990); 30B Charles Alan
Wright, Arthur R. Miller & Victor James Gold, Federal Practice and Procedure Evidence §
6938 (3d ed. & Supp. 2022).]
2. Statement Read into Record, but Not Received as an Exhibit
Similar to the treatment of past recollections recorded, if a statement in a learned treatise
is admitted, it may be read into evidence, but it may not be received as an exhibit.
Therefore, the jury may not take the treatise into its deliberations. This hearsay exception
works in tandem with the admissibility and acceptable bases for expert testimony. [ See
Fed. R. Evid. 702-03, 803(18); Past Recollection Recorded, supra.]
Example:
After a plaintiff’s house collapsed shortly after construction, the plaintiff sued the
architect. At trial, the plaintiff sought to show that the architect had designed the
plaintiff’s house in violation of well-established principles involving the design and
construction of load-bearing walls. The plaintiff called an expert witness who based her
testimony solely on her own professional experience. The expert also testified that
Gambhir's Treatise on Strength of Materials was a reliable treatise in the field and
consistent with her views. The defendant later asked his own expert witness, “Do you
believe the Gambhir treatise is reliable?” The expert answered, “It was. But it was written
in 1925, so it’s outdated.” Under the learned-treatise-hearsay exception, if a court finds
the book to be a reliable authority, statements from the book may be read into evidence,
however, the book may not be received as an exhibit.
Reputation Evidence
Rules 803(19), (20), and (21) of the FRE define a series of exceptions for reputation evidence.
The evidence is seen as reliable because if it were not true, it likely would not have reached a
general consensus. [Fed. R. Evid. 803(19)-(21).]
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1. Reputation Concerning Personal or Family History
A person’s reputation among his family, his associates, or people in his community is
admissible to prove the person’s personal or family history (i.e., the person’s birth,
adoption, legitimacy, ancestry, marriage, divorce, death, familial relationships, or similar
facts of personal or family history). [Fed. R. Evid. 803(19).]
2. Reputation Concerning Boundaries or General History
A person’s reputation that has reached general consensus in a community and has arisen
before the controversy is admissible concerning (1) boundaries of land or customs about
land in the area or (2) historical events important to that community, state, or nation.
[Fed. R. Evid. 803(20).]
3. Reputation Concerning Character
A person’s character reputation among her associates or in the community is admissible.
[Fed. R. Evid. 803(21); see Fed. R. Evid. 405, 608; Character and Related Concepts,
supra.]
Prior Judgments
Rules 803(22) and 803(23) of the FRE provide exceptions for certain previous judgments.
1. Judgment of a Previous Conviction
This exception allows for the admissibility of a previous conviction that may otherwise be
inadmissible on hearsay grounds. Evidence of a previous criminal conviction is admissible
if: (1) the judgment was entered after a trial or guilty plea, but not a no-contest (i.e., nolo
contendere) plea; (2) the conviction was for a crime punishable by death or by
imprisonment for more than a year (usually, a felony); (3) the evidence is admitted to
prove a fact essential to the previous conviction; and (4) when offered by the prosecutor
in a criminal case for a purpose other than impeachment, the judgment was against the
defendant. The pendency of an appeal of the prior conviction does not affect the
admissibility of the prior judgment. These types of judgments are trustworthy because
guilty verdicts for serious crimes covered under this exception are accompanied with
extensive procedural safeguards. [Fed. R. Evid. 803(22).]
2. Judgments Involving Personal, Family, or General History, or a Boundary
Evidence of a previous judgment may be admitted to prove a matter of personal, family,
or general history, or boundaries, if the matter was essential to the previous judgment
and could be proved by reputation evidence. [Fed. R. Evid. 803(23).]
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Hearsay Exceptions Requiring an Unavailable Declarant
Rule 804 of the FRE defines a variety of hearsay exceptions that only apply if the declarant is
unavailable to testify in the current proceeding . These exceptions allow the admission of prior
out-of-court statements that are not as trustworthy as present testimony but are
nevertheless better than no evidence at all from the unavailable declarant. These exceptions
include former testimony, dying declarations, statements against interest, statements of
personal history, and statements offered against a party who intentionally caused the
declarant’s unavailability. [Fed. R. Evid. 804.]
1. Criteria for Unavailability
The judge determines whether a declarant is unavailable. Unavailable does not necessarily
mean physically absent or physically unable to attend the proceeding; the proffering party
may establish the declarant’s unavailability in a number of ways. A declara nt may be
deemed unavailable to testify as a witness in the current proceeding if the declarant:
• is exempted from testifying as a result of a privilege,
• continuously refuses to testify despite a court order to do so,
• testifies to a lack of memory about the subject matter,
• is dead or has a long-term physical or mental illness, or
• is absent and cannot be tracked down via subpoena or some other reasonable means despite
a diligent search.
In no case will a declarant be deemed unavailable if the proffering party procured or
wrongfully caused the declarant’s unavailability. [Fed. R. Evid. 804(a), 804(b)(6).]
2. Former Testimony
Former testimony of an unavailable declarant is admissible if (1) the former testimony was
given at a trial, hearing, or lawful deposition, and (2) it is offered against a party who had—
or, in a civil case, whose predecessor in interest had—an opportunity and similar motive to
develop it by examination. This type of testimony is reliable because the statement was
made under oath, and the declarant was subject to cross-examination. Note that former
grand-jury testimony against a criminal defendant is never a dmissible because the
defendant had no opportunity to cross-examine the witness during the grand-jury
proceeding. [See Fed. R. Evid. 804(b)(1) advisory committee’s note.]
Example:
A defendant was acquitted of murder. The defendant was subsequently charged with
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federal weapons charges relating to the murder. Testimony of a presently unavailable
prosecution witness from the murder trial about the defendant possessing the weapons
was admissible because the witness was unavailable during the present trial, and the
defendant had an opportunity and similar motive to cross-examine the witness at the prior
murder trial. [See United States v. Lombard, 72 F.3d 170 (1st Cir. 1995).]
3. Dying Declarations
An unavailable declarant’s statement made under the belief that his own death was
imminent, also known as a dying declaration, is admissible in a prosecution for homicide or
in a civil case, if the statement concerns the cause or circumstances of the declarant’s
death. A dying declaration is reliable because it is unlikely that someone who knows they
are about to die would lie. [Fed. R. Evid. 804(b)(2) advisory committee’s note; see also
Fed. R. Evid. 602; 30B Charles Alan Wright, Arthur R. Miller & Victor James Gold, Federal
Practice and Procedure Evidence §§ 6982-83 (3d ed. & Supp. 2022).]
a. Declarant’s Actual Death Not Required
The declarant does not have to actually die for a dying declaration to be admissible, but
the declarant must be unavailable under Rule 804(a) and have made the statement
under a subjective belief in his impending death.
b. Declarant’s Subjective Belief in His Impending Death
To have the requisite subjective belief, a declarant must be conscious of impending
death and under the belief that there is no possibility of surviving. A court may infer
the requisite belief from the nature and extent of the declarant’s injuries. Like all lay
witnesses, the declarant must have firsthand knowledge of the cause or circumstances
of the declarant’s impending death to meet this exception. [ United States v. Peppers,
302 F.3d 120 (3d Cir. 2002); 30B Charles Alan Wright, Arthur R. Miller & Victor
James Gold, Federal Practice and Procedure Evidence §§ 6984 (3d ed. & Supp. 2022).]
Note: Although the declarant’s dying declaration must be made under a subjective
belief in the declarant’s impending death to be admissible under the hearsay
exception, the declarant does not need to express her belief in her impending death at
the same time, or in the same statement, as the statement sought to be introduced as
a dying declaration. [See Webb v. Lane, 922 F.2d 390 (7th Cir. 1991).]
Example:
Police officers visited a victim in the hospital two days after the victim had been shot.
The victim identified his attacker by pointing to a photograph police officers
presented. Six hours before the identification, the victim had told his family that he
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believed he was going to die. At the time of the identification, the victim was on life
support and had been shot six times, including hits to the chest and abdomen. The
victim’s identification was a dying declaration. The victim’s earlier communication of his
belief to his family, as well as the seriousness of his wounds, supported an inference
that at the time he made the identification, the victim believed his death was imminent.
The victim need not express his belief of his impending death contemporaneo usly with
making the statement sought to be introduced under the exception. [ Webb v. Lane,
922 F.2d 390 (7th Cir. 1991).]
Compare:
A declarant made a sworn statement that his lymphoma was caused by exposure to a
chemical manufactured by the defendant. At the time of the statement, the declarant
had stage 4 lymphoma, which was considered incurable. The declarant believed that
he then had approximately three to six months to live. The declarant continued to
work at that time on a limited basis. The declarant had also recently visited a religious
shrine to seek healing. Here, the declarant’s sworn statement was not a dying
declaration. The length of time the declarant believed he had remaining to live, and his
continued engagement in his profession, did not support a finding that he believed his
death was imminent. Moreover, the declarant’s visit to the shrine for healing did not
support a finding that he believed there was no possibility of survival. [ Sternhagen v.
Dow Co., 108 F. Supp. 2d 1113 (D. Mont. 1999).]
4. Statements against Interest
A statement so contrary to an unavailable declarant’s penal, proprietary, or pecuniary
interest that a reasonable person in the declarant’s position would not have made it if it
were not true is admissible. The reliability of statements against interest is evident from
the text of the rule itself, as a person generally will not make a statement against his or
her own interests if the statement is not true. [Fed. R. Evid. 804(b)(3).]
a. Distinguishing Statements against Interest from Statements
Attributable to Party-Opponent
A statement against interest must be so contrary to the declarant’s proprietary,
pecuniary, or penal interest that a reasonable person in the declarant’s position would
make the statement only if he believed it to be true. The declarant need not have a
relationship to any party in the case and must have personal knowledge of the facts in
the statement. In contrast, hearsay statements of a party-opponent need not be
contrary to the declarant’s interests. Rather, statements of party-opponents can be on
any subject, provided they are made or adopted by a party to the case. Moreover, a
declarant need not have personal knowledge of the statement’s facts in order for the
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statement to be admissible under the exception for statements of party -opponents.
[See Statements Attributable to Party-Opponent, supra.]
b. Corroborating Evidence Required in Criminal Cases
If a statement against interest is offered in a criminal case in which the declarant is
exposed to criminal liability, the statement must also be supported by corroborating
evidence clearly indicating the statement’s trustworthiness. Factors in determining the
sufficiency of corroborating evidence include:
• the timing and circumstances under which the statement was made,
• the declarant’s motive,
• whether the declarant repeated the statement under different circumstances,
• to whom the statement was made,
• the relationship between the declarant and the party seeking to exclude the statement, and
• any independent evidence relevant to the conduct in question.
[Fed. R. Evid. 804(b)(3)(B); see, e.g., United States v. Bumpass, 60 F.3d 1099 (4th Cir.
1995); United States v. Camacho, 163 F. Supp. 2d 287 (S.D.N.Y. 2001).]
Examples:
(1) A man was charged with murdering his secretary. The prosecution planned to call
one of the man’s coworkers to testify that he overheard a receptionist say to the man,
“I can help you and I won’t get caught.” The receptionist fled the country after
learning of the murder investigation, and the court was unable to compel her
appearance. Here, because the receptionist fled the country and the court could not
compel her appearance, she was unavailable. The receptionist’s statements were
statements against interest because they exposed her to criminal liability. Lastly, the
fact that the receptionist fled the country after learning of the investigation
corroborated her statements. Therefore, the receptionist’s statements were
admissible.
(2) A defendant made an out-of-court statement confessing to killing someone while
in prison. The only evidence tending to corroborate the confession was that the
defendant was out of his prison cell at the time of the murder and had the opportunity
to commit the murder. At trial, the defendant invoked his Fifth Amendment right
against self-incrimination and was therefore unavailable to testify. The prosecution
was not permitted to introduce the out-of-court confession under the statementsagainst-interest hearsay exception. The evidence that the defendant was out of his
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prison cell at the time of the murder did not clearly corroborate the confession; it was
merely consistent with it. [Adapted from United States v. Silverstein, 732 F.2d 1338 (7th
Cir. 1984).]
c. Statements Inculpating or Exculpating Third Parties
An otherwise-admissible statement against interest that also inculpates a third party
must be parsed and only admitted in part, excluding the inculpating portion. A
statement against interest that also exculpates a third party may be admissible in full if
all parts of the statement disserve the declarant’s interests. [ See United States v.
Paguio, 114 F.3d 928 (9th Cir. 1997) (permitting the introduction of a declarant’s
statement confessing to a crime and also indicating that his sons had nothing to do
with the crime).]
Example:
A declarant made the following out-of-court statement: “I robbed the bank, and [the
defendant] helped me.” The declarant was unavailable at the defendant’s trial for the
bank robbery. The prosecution sought to introduce the declarant’s statement in full.
However, the prosecution was only permitted to introduce the first part of the
statement—“I robbed the bank.” The prosecution may not introduce the second part of
the statement (“and [the defendant] helped me”), because it inculpated the defendant.
[Adapted from Williamson v. United States, 512 U.S. 594 (1994).]
5. Statements of Personal History
An unavailable declarant’s out-of-court statement about the declarant’s own personal or
family history is admissible, even if the declarant had no way of acquiring personal
knowledge of the stated fact. Statements made by an unavailable declarant about another
individual’s personal or family history are admissible if the declarant was related to the
individual or was so intimately associated with the individual that the declarant’s
information is likely to be accurate. [Fed. R. Evid. 804(b)(4).]
6. Statements Offered against Party Who Wrongfully Caused Declarant’s
Unavailability
An unavailable declarant’s out-of-court statement offered against a party who wrongfully
and intentionally caused or acquiesced in causing the declarant’s unavailability is
admissible. To exclude the statement would give parties incentive to cause witnesses to
be unavailable or reward parties for their wrongful interference with a prospective
witness’s testimony. [Fed. R. Evid. 804(b)(6).]
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Other Exceptions to the Hearsay Rule
In addition to the exceptions in Rules 803 (which usually apply regardless of whether the
declarant is available) and 804 (which apply only if the declarant is unavailable) of the FRE,
the FRE define a residual, or catch-all exception in Rule 807 for hearsay statements that do
not fit within another exception but are nevertheless reliable. To be admissible under the
residual exception, a statement must:
• have equivalent circumstantial guarantees of trustworthiness as statements permitted in the
exceptions in Rules 803 and 804;
• be offered as evidence of a material fact;
• be more probative on the point for which it is offered than any other evidence that the
proponent can obtain through reasonable efforts (i.e., be a party’s best available evidence on a
given point); and
• serve the general purposes of the FRE and the interests of justice by its admission.
A party seeking to offer a statement under the residual hearsay exception must provide its
opponent reasonable notice of its intent to do so, including the declarant’s name and address.
[Fed. R. Evid. 807 advisory committee’s note.]
Example:
A defendant was on trial for the attempted murder of his former boss. The defendant’s late
wife kept a diary of the defendant’s conduct on the advice of her attorney while the couple
was having marital troubles. The wife’s handwriting in the diary was iden tified by the wife’s
sister. The prosecution was permitted to admit, under the residual hearsay exception,
excerpts from the diary. The diary entries, although not specifically covered by a hearsay
exception, had circumstantial guarantees of trustworthiness and were admissible. [United
States v. Treff, 924 F.2d 975 (10th Cir. 1991).]
1. Circumstantial Guarantees of Trustworthiness
A trial judge may consider numerous factors in making a threshold determination of
reliability before admitting a hearsay statement under Rule 807 of the FRE. For example,
a court may consider:
• the statement’s spontaneity, consistency, and voluntariness;
• any motive to fabricate or bias (or lack thereof);
• the reason the declarant cannot testify;
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• the declarant’s character for truthfulness, capacity, and personal knowledge when the
statement was made;
• the person to whom the statement was made, including whether that person had any
relationship to the declarant;
• whether the declarant recanted the statement after it was made;
• whether the declarant made other consistent or inconsistent statements;
• whether the declarant’s behavior was consistent with the statement;
• whether the statement was corroborated by other evidence or statements of others; and
• the time frame within which the statement was made.
[See Idaho v. Wright, 497 U.S. 805 (1990).]
Example:
A defendant was on trial for conspiracy to import, importation, and possession with intent
to distribute drugs. Over the defendant’s hearsay objection, the prosecution was
permitted to introduce a letter written by the defendant’s codefendant to the
codefendant’s boyfriend. The letter did not satisfy any hearsay exception, but the court
found that the letter, written to an intimate acquaintance in the privacy of a hotel room,
was sufficiently trustworthy to be admitted under the residual hearsay exception. [United
States v. Morgan, 385 F.3d 196 (2d Cir. 2004).]
Compare:
A defendant was on trial for murder. Before dying, the victim identified someone other
than the defendant as the assailant. At the time of the identification, the victim was
capable of communicating only through blinks and nods due to her injuries. At tria l, the
defendant sought to introduce the identification under the residual hearsay exception.
However, given the victim’s physical state, the identification was ambiguous and thus not
sufficiently trustworthy. Therefore, the identification was inadmissible . [United States v.
Lawrence, 349 F.3d 109 (3d Cir. 2003).]
2. Best Available Evidence
To be admissible under Rule 807’s residual exception, a hearsay statement must be more
probative on the point for which it is offered than any other evidence that is reasonably
available. Generally, this means that statements admitted under the residual exception
are the offering party’s best available evidence for a given point. If the declarant is
available, this may render the residual exception inappropriate, because live testimony
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from an available declarant whose reliability can then be tested via cross -examination is
usually better evidence than the out-of-court hearsay statement. However, the
declarant’s availability does not necessarily render the residual exception inapplicable . In
some instances, an out-of-court statement might be more reliable than an in-court
statement by a declarant-witness, for example, if the witness is a child who may be
traumatized by testifying. [See, e.g., Noble v. Ala. Dep’t of Envtl. Mgmt., 872 F.2d 361 (11th
Cir. 1989) (concluding that a residual hearsay exception could not apply because
evidence was not unreasonably difficult to obtain directly from the available declarants
themselves).]
Right to Confront Witnesses
The Confrontation Clause of the Sixth Amendment to the US Constitution guarantees a
criminal defendant the right to be confronted with the witnesses testifying against him. This
constitutional right includes the right to confront witnesses face -to-face and the right to
cross-examine those witnesses. If out-of-court hearsay statements are offered against a
criminal defendant, the defendant consequently cannot confront declarants face -to-face or
cross-examine them. To protect a criminal defendant’s rights under the Confrontation Clause,
the United States Supreme Court has limited the ways in which out -of-court statements may
be used against criminal defendants. [U.S. Const. amend. VI; Hemphill v. New York, 595 U.S.
140 (2022), Crawford v. Washington, 541 U.S. 36 (2004); Bruton v. v. United States, 391 U.S.
123 (1968).]
1. Issues with Testimonial Hearsay Statements: Crawford
The United States Supreme Court held in Crawford v. Washington that testimonial hearsay
statements are not admissible, even if they otherwise qualify under an existing exception,
unless (1) the declarant is unavailable and (2) the defendant had a previous opportunity to
cross-examine the declarant about the statement. [U.S. Const. amend. VI; Crawford v.
Washington, 541 U.S. 36 (2004).]
a. Crawford Rule Inapplicable If Statement Is Not Hearsay
The Crawford rule only applies to hearsay statements. If a statement is not an
assertion, is not offered for the truth of the matter asserted, or is otherwise exempted
from the definition of hearsay in Rule 801(d), the Crawford rule does not bar its
admission.
b. Testimonial Hearsay Statements
A hearsay statement is testimonial if its primary purpose is to prove past events for use
in a criminal investigation or prosecution. For example, statements made to police to
seek help are usually not testimonial, because they are made to resolve or address an
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ongoing emergency. However, statements made by a witness or a victim to police
after an investigation has begun are testimonial, as are depositions, affidavits,
transcripts of prior testimony, and other formalized statements.
Examples:
(1) A defendant and his wife confronted a man about the possibility that the man
raped the wife. The defendant stabbed the man and later claimed self -defense. The
wife, while being interrogated by police, stated that the man did not have a weapon at
the time of the stabbing. The wife was unavailable to testify at the defendant’s (her
husband’s) trial because she invoked the spousal privilege. The prosecution could not
introduce the wife’s out-of-court statement about the lack of a weapon. Even though
it was otherwise admissible under a state-law hearsay exception, its admission would
violate the Confrontation Clause. The statement was testimonial, because its primary
purpose was for use in the criminal prosecution of the defendant, and the declarant wife was unavailable and unable to be cross-examined about the statement by the
defendant. [Crawford v. Washington, 541 U.S. 36 (2004).]
(2) At a trial for drug distribution and trafficking, state prosecutors introduced
certificates of analysis that had been prepared by analysts in the state crime
laboratory to show that the substance seized from the defendant was cocaine. The
analysts did not testify at trial. The defendant’s inability to cross-examine the analysts
at trial violated his rights under the Confrontation Clause. The statements in the
certificates were testimonial because an objective witness would reasonably believe
that the statements would be available for a later trial. The certificates were
functionally identical to affidavits or other in-court testimony elicited on direct
examination. Accordingly, the Confrontation Clause required that the defendant be
permitted to cross-examine the analysts who prepared them. [Melendez-Diaz v.
Massachusetts, 557 U.S. 305 (2009).]
Compare:
(1) Police arrived on the scene of a shooting and began questioning the victim. While
repeatedly asking when paramedics would arrive, the victim told the police who had
shot him and where the shooter lived. In the subsequent trial of the shooter, the trial
court admitted the victim’s statements to police as excited utterances. Admitting the
victim’s hearsay statements at trial did not violate the defendant’s rights under the
Confrontation Clause, because the victim’s statements were not testimonial. An
objective analysis of the circumstances indicated that the statements were made
during an ongoing emergency. The police’s questions were posed in an attempt to
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resolve that emergency, and the likelihood of fabrication was substantially reduced.
[Michigan v. Bryant, 562 U.S. 344 (2011).]
(2) A defendant was arrested for burglarizing hotel guest rooms. The investigating
officer obtained the hotel’s computerized records reflecting the times the burglarized
guest-room doors were opened and closed. The Confrontation Clause bars the
admission of testimonial statements against a defendant unless the declarant is
unavailable, and the defendant had a prior opportunity to cross-examine the declarant.
Under the primary-purpose test, a statement is testimonial if the primary purpose of
the statement was to gather evidence against the defendant or to create a substitute
for trial testimony. Here, the hotel records were not testimonial statements because
they were not prepared to gather evidence against the defendant or as a substitute
for trial testimony. Rather, they were records the hotel kept automatically and
routinely that were also used in the officer’s investigation. Therefore, if properly
authenticated, the hotel records may have been introduced against the defendant
without violating his Confrontation Clause rights.
2. Issues with Testimonial Statements of Codefendants Implicating
Defendants: Bruton
If multiple defendants are tried together, the United States Supreme Court has limited
the ways in which the government may use out-of-court testimonial statements (including
confessions) from codefendants who do not testify. These issues are sometimes cal led
Bruton problems, after the Court’s decision in Bruton v. United States. The Court held in
Bruton that the prosecution may not use (1) a testimonial out-of-court statement from a
codefendant that implicates another defendant, if (2) both defendants are tried together,
and (3) the codefendant does not testify. Permitting the government to use a statement
like this would violate the defendant’s rights under the Confrontation Clause. A limiting
instruction that the jury should only consider the statement against the codefendant
would be insufficient to cure the violation. [Bruton v. United States, 391 U.S. 123 (1968);
see also Gray v. Maryland, 523 U.S. 185 (1998); Richardson v. Marsh, 481 U.S. 200 (1987);
30B Charles Alan Wright, Arthur R. Miller & Victor James Gold, Federal Practice and
Procedure Evidence § 5064.1-5064.2 (3d ed. & Supp. 2022).]
Note: No Bruton problem arises if (1) the codefendant’s statement is redacted to remove
the portion that implicates the defendant, (2) the prosecutor simply forgoes the use of
the confession, or (3) the codefendant testifies (enabling the defendant to cross -examine
the codefendant).
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Testing a Hearsay Declarant’s Credibility
If a hearsay statement or a statement exempted from the definition of hearsay is admitted
into evidence, the declarant’s credibility may be attacked, and subsequently supported, by
any evidence that would be admissible for those purposes if the declarant h ad testified at
trial as a witness. [Fed. R. Evid. 806; see Impeachment of Hearsay Declarants, supra.]
1. Impeaching Hearsay Declarant with Prior Convictions
A hearsay declarant’s credibility may be impeached with evidence of a prior conviction
under Rule 609 of the FRE. In criminal cases, if the declarant is the criminal defendant
who is unavailable because he has invoked his right under the Fifth Amendment no t to
testify as a live witness, the defendant-declarant’s credibility may be impeached with
evidence of a prior conviction. [Fed. R. Evid. 609, 806; United States v. Noble, 754 F.2d
1324 (7th Cir. 1985) (permitting nontestifying criminal-defendant-declarant to be
impeached by a prior conviction); see Conviction of Crime, supra.]
2. Impeaching Hearsay Declarant with Inconsistent Statement
Because a hearsay statement is made out-of-court, an inconsistent statement used to
impeach the declarant will not necessarily be made prior to the hearsay statement but
may be made after. In addition, the procedural requirements regarding impeachment with
prior inconsistent statements are necessarily inapplicable to impeachment of a hearsay
declarant, because the declarant will have no opportunity to explain the inconsistency.
[Fed. R. Evid. 613(b), 806; see Inconsistent Statements and Conduct, supra.]
3. Using Extrinsic Evidence to Impeach a Hearsay Declarant with Specific
Instances of Conduct Reflecting the Declarant’s Character for
Untruthfulness
Rule 608(b) of the FRE prohibits an impeaching party from using extrinsic evidence to
impeach a witness with specific instances of conduct reflecting the witness’s untruthful
character. Rather, impeaching parties are limited to asking questions about speci fic
instances of conduct on cross-examination. However, a hearsay declarant cannot be
subjected to cross-examination because a hearsay declarant is not providing live
testimony. At least one court has permitted a party to impeach a hearsay declarant with
extrinsic evidence of the specific instances of conduct showing the declarant’s untruthful
character. [See United States v. Friedman, 854 F.2d 535 (2d Cir. 1988); Specific Instances
of Conduct, Character for Truthfulness, supra.]
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Multiple Hearsay
Multiple hearsay is also called hearsay within hearsay, embedded hearsay, double hearsay, or
layered hearsay. Multiple hearsay occurs if a hearsay statement itself refers to another hearsay
statement. Multiple hearsay is admissible if each part of the combined statement is admissible
under a hearsay exemption or exception. It is not necessary for each hearsay statement to be
admissible in the same way. Rather, each hearsay portion of a statement containing multiple
levels can be admissible under a different exemption or exception. [Fed. R. Evid. 805 advisory
committee’s note.]
Examples:
(1) An employee sued her employer for emotional distress. The employee had been treated
for anxiety in the hospital. At trial, the employer sought to admit hospital records. The
records included a statement the employee’s sister had made to a social worker that the
employee was a liar. The employer wanted to use the records to prove that the employee
was not credible. This use involved two levels of hearsay: one for the record itself, and
another for the sister’s statement in the record. The hospital record could be admitted under
an exception for business records. However, because the employee’s sister was not a regular
employee of the hospital, her statement could not qualify under the same exception. Instead,
the statement could qualify as one made to a medical professional for the purpose of
obtaining treatment. [Wilson v. Zapata Off-Shore Co., 939 F.2d 260 (5th Cir. 1991).]
(2) A plaintiff sued a defendant for injuries suffered during a fistfight between them. The day
after the fight, a police officer spoke with the plaintiff, the defendant, and an eyewitness.
From these interviews, the officer prepared an official police report. At trial, the plaintiff
sought to introduce from the properly authenticated police report a statement attributed to
the eyewitness, who was unavailable to testify at trial, that “[the defendant] started the
fight.” The eyewitness’s statement was hears ay within the hearsay report. The report itself
could have been admissible as a business or public record; however, the hearsay within it was
admissible only if it satisfied a separate hearsay exception, or if the plaintiff could show that
the eyewitness had a business or public duty to report the information accurately. Because
the eyewitness did not have a business or public duty to report the information accurately,
the eyewitness’s statement was not admissible.
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