EVIDENCE OUTLINE
I. INTRODUCTION
A. The Adversary System – Past and Present
 History of evidence
o English created circuit judges and royal appointees in charge of them
(shire reve) who collected the judgments
 Jury was an inquisitorial one – Duty was to investigate
o Right of audience – Aristocrats who attended trials and were onlookers
who were asked to assist the court
o 12th -16th C was the development of an actual trial system
o Primitive criminal cases:
 Trial by ordeal, Trial by battle, Wager by law
o Centuries later the advocates formed groups and formalized training in a
model known as the adversarial system
 16th and 17th C start seeing the formation of the rules of evidence
 Adversarial system
o 1. Contesting litigants
 a. Hire trained advocates
 b. Choose evidence to offer
o 2. Evidence submitted in structured setting
 a. Rules of evidence, procedure, ethics
 b. Use of appellate courts
o 3. Neutral, passive fact finder
B. Judicial Function – Factfinding, Discretion, Standards of Appellate Review
 Lawyer – Role as the judge’s helper, remind him of the rules
o Counsel has the responsibility of choosing what the evidence will be
o Essentially building a model, the blueprint is the substantive law
 Judge – Monitors the process
o Has inherent power – Derived from the separation of powers doctrine in
the Con to prevent usurpation of the judiciary by other branches
 Jury – Two functions
o 1. Decides what happened – the fact finder
o 2. Judges credibility of the witnesses
 Witness – Median through which information would be received
 Deference that an appellate court gives to a trial court on review of Q of fact
o Bench – If there was any factual evidence from which a jury could have
found otherwise, Appellate can reverse
o Jury – Considerable deference, only if no reasonable juror could have
 Evidence law
o Bundle of rules that regulate proof to persuade question of fact at trial
o How can an evidentiary question be elevated into a constitutional question
 How can you take it from a mere objection to a violation of the
client’s due process rights when it goes to appeal
 Goal of course – look to the constiutionalization of evidence
o Remained CL country for many decades, codification in last century
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 Most states have now codified evidence law based on FRE
o We have these rules for economy of time, and long held distrust of jury
 Rule 101. Scope – These rules govern proceedings in the courts of the United
States and before the United States bankruptcy judges and United States
magistrate judges, to the extent and with the exceptions stated in rule 1101.
o Applies to federal proceedings, large majority of states have copied them
o 1101(a). Courts and Magistrates – US district courts, US courts of
appeals, US Claims court, and to US bankruptcy judges and US
magistrates
o 1101(b). Proceedings Generally – These rules apply generally to civil
actions and proceedings, including admiralty and maritime cases, to
criminal cases and proceedings, to contempt proceedings except those in
which the court may act summarily, and to proceedings and cases under
title 11, US Code.
o 1101(d). Rules Inapplicable - the rules do not apply in the following
situations (other than privilege rule): Preliminary questions of fact (104);
Grand jury; Miscellaneous proceedings
 Rule 102. Purpose and Construction – These rules shall be construed to secure
fairness in administration, elimination of unjustifiable expense and delay, and
promotion of growth and development of the law of evidence to the end that the
truth may be ascertained and proceedings justly determined.
o “liberal construction rule”
 FRE have a reputation as being more liberal, flexible, than CL
o Should be construed to get fairness in administration – factors such as
cost, time, efficiency, economy may be factored in
o Gives you an opportunity to argue policy, how they’re to be construed
C. Order and Burden of Proof
 ANATOMY OF THE TRIAL
o Pretrial
 Motions in Limine – Pretrial motion for the purpose of requesting
the judge to exclude certain evidence at the trial that is going to
prejudice the jury or to obtain a ruling on the admissibility of
evidence
 It is limited to jury trials (criminal or civil)
o The law presumes the judge to know the law and
not be biased, it’s the jury we’re concerned about
 NOT a pretrial ruling on relevancy (those await trial)
o Really means not a pretrial ruling on logical
relevancy, may be legal relevancy
o Logical is whether the evidence is helpful, legal is
whether it’s probative value is outweighed by
prejudice
 Jury Selection/Voir dire – Narrowing panel of jurors to a petit jury
 Preliminary instructions – list of standard instructions given to the
jury having to do with the presumption of innocence in criminal, in
civil, burden’s of proof or persuasion
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o Opening Statement
 Advocate presents an opening statement
 Law of trial advocacy limits this phase to state what the evidence
will be
 Cannot ask the jury to make conclusions here
 Defense can then give opening statement or reserve for later
 They’ll probably want to give it as soon as possible, rather
than wait until the plaintiffs give their case
o Plaintiff’s Case in Chief (or the party with the burden of proof)
 Judge has near unfettered discretion in deciding how it will go, and
is nearly impervious to review as long as he was trying to be fair
 Rule 611(a) – The court shall exercise reasonable control
over the mode and order of interrogating witnesses and
presenting evidence so as to (1) make the interrogation and
presentation effective for the ascertainment of the truth, (2)
avoid needless consumption of time, and (3) protect
witnesses from harassment or undue embarrassment.
 Witness A
 1. Direct examination by the P
 2. Cross by D
 3. Re-Direct by P
 4. Re-Cross by D
 Plaintiff Rests
o Defense makes motions
 Motions to take it away from the jury
 Causation, breach of duty (negligence itself), damages
 P wants to fill up a quantum of evidence to overcome sufficiency
motions
 Distinction btwn. sufficiency of evidence and admissibility
of evidence (tendency to prove a disputed fact)
 If the motion is overruled then we continue with the D’s case
o Defendant’s Case – Identical to the P’s
 Defendant Rests
o Rebuttal
 P gets another chance, must be directed at something from the D’s
case
 In terms of scope, it’s governed by what came out in D’s case
o Surrebuttal
 D then rebuts the P’s rebuttal
 P shouldn’t then be allowed to call another witness
o More sufficiency motions, if appropriate
o Charging Conference
 Address what instructions will be given tot the jury
 Can only give instructions if there was evidence on it
o Closing arguments
 Ultimate goal is to use the evidence to persuade in closing
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R 614. Calling and Interrogation of Witnesses by Court
o (a) Calling by court – The court may, on its own motion or at the
suggestion of a party, call witnesses, and all parties are entitled to crossexamine witnesses thus called.
o (b) Interrogation by court – The court may interrogate witnesses, whether
called by itself or by a party.
o (c) Objections – Objections to the calling of witnesses by the court or to
interrogation by it may be made at the time or at the next available
opportunity when the jury is not present.
D. Objections, Offers of Proof, and Making the Record
 R 103. Rulings on Evidence
 103(a) Effect of Erroneous Ruling – Error may not be predicated upon a ruling
which admits or excludes evidence unless a substantial right of the party is
affected, AND
o (1) The party makes a timely and specific objection or motion to strike, or
(2) an offer of proof if evidence was excluded
 Codification of the harmless error principle
 Evidence is admissible, unless the judge or lawyer objects
 Failure to make timely and specific objection is deemed to waive
that issue later
 Motion to strike on available when no opportunity to object
 To perfect an evidence issue for appeal 2 things must be shown
o 1. Must show a substantial right of a party was affected
 No one definition of substantial right – means the judge’s ruling on
the evidence likely affected the verdict
 Means judge often looks at evidence in context of the trial
 Frequently referred to as harmful error, contrasted with harmless
 Harmless errors don’t affect substantial rights
o Get an affirmance
 Harmful error/prejudicial error/reversible error
o Can get a reversal
 Constitutional error
 Places the burden on the appellee of showing that any error
was harmless beyond a reasonable doubt
 Ex; denial of due process not to allow D to raise every offer
of innocence through rejecting D’s expert W
 Appeal will be viewed through an abuse of discretion standard
 See if judge was irrational in decision made
o 2. Where evidence held inadmissible, that a timely and specific objection
was made
 Specific – bound by the grounds stated for an objection at trial,
can’t bring up a new objection on appeal (judicial economy)
 Court can grant a continuing objection, considered timely
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Amendment to Rule 103 – Once the court makes a definitive ruling on the record
admitting or excluding evidence, either at or before trial, a party need not renew
an objection or offer of proof to preserve a claim of error for appeal.
o The word “record” was widely held to mean trial record prior to 2000, not
anything pretrial
 Before that, if you made a motion in limine, the objection had to be
made at trial too, but that was thought unduly harsh and amended
 Now, so long as the judge makes an unqualified ruling, a party
need not renew it during the trial for appeal
o Key is understanding the word definitive
 Rulings are sometimes called provisional/tentative/reserved orders
when they are not definitive
 Those words mean that the judge is concerned about
context and issues are sometimes dealt with best in a trial
environment
 Means that you must make an objection at trial because you
don’t have a definitive ruling
 If a party violates the motion in limine, you must make an
objection on the record to preserve it for review
 Judge is free to change his mind with respect to a pretrial
definitive order and then you must object during trial
Where evidence is excluded, lawyer is entitled to make an offer of proof
o Allows opposing counsel to take corrective measures, to inform the trial
court what the evidence would have been after judge sustains an objection
 Advocate’s responsibility to make an offer of proof
o 3 Types
 1. Lawyer offer – 103(a)(2)
 Out of the hearing of the jury, tells the court on the record
what the evidence would have been
 Purpose is to make the record, preserve the issue for appeal
 2. Tangible offer
 You have a right to make an OOP for a tangible object
 Look at the object that was excluded and determine if a
substantial right of a party was affected
 3. Witness offer – 103(b)
 The court may add any other or further statement which
shows the character of the evidence, the form in which it
was offered, the objection made, and the ruling thereon…
 “May” tells you that it’s discretionary
o Construction of a FRE such as misreading the word
“shall” may be reviewed de novo
o There the judge simply misconstrues the rule
 Witness offer is the taking of testimony from the witness
under oath out of presence of the jury
R. 103(c) Hearing of Jury
o Sidebar rule
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R. 103(d) Plain Error – Nothing in this rule precludes taking notice of plain errors
(fundamental error) affecting substantial rights although they were not brought to
the attention of the court
o Special dispensation where you fail to make the record at trial if there is a
fundamental error – more obvious and serious than reversible error
 Manifest injustice is done if the court doesn’t declare it
 Sometimes trial judge will jump in if they see reversible error
 Not technically declaring plain or fundamental error, which
is done by the appellate court
D. Preliminary Questions
 R. 104(a) Questions of Admissibility Generally – Preliminary Questions
concerning the qualification of a person to be a witness, the existence of a
privilege, or the admissibility of evidence shall be determined by the court
o Judge is not bound by the rules of evidence in making his determination
on a preliminary question, except with regard to privileges
o Judge may consider inadmissible evidence in making his determination
o The judge rules on almost every possible objection to admission, except
for the one left for the jury to rule on in 104(b), “conditional relevance”
 R. 104(c) Hearing of Jury – Hearings on admissibility of confessions and whether
or not it was voluntary are conducted out of the hearing of the jury
o Codified in Jackson v. Denno
 R. 104(d) Testimony by Accused – Accused doesn’t open up other matters on
cross by testifying on preliminary matters
 R. 104(e) Weight and Credibility – This rule does not limit the right of a party to
introduce before the jury evidence relevant to weight or credibility
o A basic axiom that the trial judge decides issues of admissibility and the
jury decides questions of weight and credibility
o This makes clear that an admissibility ruling does not curtail the right of a
party to dispute the reliability of admitted evidence before the jury
II. Relevancy
A. Concepts of Logical and Legal Relevancy
1. Conditional Relevancy/Competing Policy Concerns
 Relevancy – Refers to a logical connection between something called evidence
and some proposition sought to be proved
o The proposition must relate to one or more issues in the case, therefore we
can’t analyze an evidence issue without knowing the substantive
component of the case
 Blueprint from the substantive law that is set out in the pleadings
 Logical relevancy – does the evidence have a tendency in logic to
make a fact in dispute more or less logical
o At CL there was a separate doctrine as to whether an issue was probative
 Doctrine of materiality – Still out there, but most states have
adopted the federal view, which merges materiality with relevancy
 Modern rule, don’t use the word material very often
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R. 401 Definition of “Relevant Evidence” - "Relevant evidence" means evidence
having any tendency to make the existence of any fact [that is of consequence to
the determination of the action] (this is the old materiality rule) more probable or
less probable than it would be without the evidence
o Rule of logical relevancy – very low threshold
o Any tendency test – If it has any tendency in logical to make any fact in
dispute more or less logical, it’s ok
 Test that measures the probability of a fact’s existence, not to do
with the weight of it
o It is not an inherent item or characteristic, rather it is a relationship
between an item of evidence and some proposition sought to be proved
 Relevancy hearings are of little precedential value
 “E”  “P” (Evidence  Proposition)
 The Ps are the elements of the case
o Standard of review is likely very deferential – may be clearly erroneous
Two kinds of evidence
o 1. Direct Evidence – Doesn’t depend on any inference for its relevancy
other than the credibility of the W through whom it is offered
 “I saw X stab Y”
o 2. Circumstantial Evidence – Depends for its relevancy not only on W
credibility, but also on an inference to be drawn from the evidence
 “I saw Y with a knife in his back and X running from the scene”
 It can be one inference, two inferences, a fact on top of another
fact raiding an inference
R. 104(b) Relevancy conditioned on fact – When the relevancy of evidence
depends upon the fulfillment of a condition of fact, the court shall admit it upon,
or subject to, the introduction of evidence sufficient to support a finding of the
fulfillment of the condition
o Does the relevancy of the evidence rest upon the establishment of one or
more conditional facts?
 If yes, the doctrine of conditional relevancy is applied
o There is flexibility for the trial judge – they can handle it in two ways
 1. Upon – The judge is not going to allow evidence of what X did
right now, the proponent is going to have to show conditional
relevancy of the fact first
 Concern of the court is that the evidence of may be
potentially prejudicial to the jury
o Expect that in criminal cases more often
 2. Subject to – The evidence is admissible now, subject to the
establishment of the conditional fact later
 Doctrine of connecting up - you introduce the fact, and it’s
admitted based on the fact that additional information will
be presented
 Opponent’s responsibility to make sure the advocate later
establishes the conditional fact
 Can’t raise it on review if you don’t
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o The Judge – different roles and burdens of proof
 Under 104(a) the judge is the sole fact finder, he determines by a
preponderance of the evidence as to the preliminary evidence
 Under 104(b) the judge has a different role – as a gatekeeper he
determines if there is prima facie evidence sufficient to support a
finding by the jury on a conditional fact (very low threshold)
 Jury determines relevancy
 This is about admissibility, not sufficiency
EX; Jack drank poisoned coffee served by his estranged wife
o Direct E – X saw Jill put the poison in the cup
o Circumstantial E – X heard Jill previously say, “I hate Jack”
 It’s relevant – People who declare hatred are more likely to kill
 Whether that persuades you is part of sufficiency, we’re only
looking for any tendency in logic for relevancy
 If you find rat poison in her purse, you can link up the poison with
the statement
o Have to persuade the judge that the inference derived is logical
EX; Chata refuses to go in the cobra pit
o Relevancy – Those who refuse to go in the pit are more likely to be guilty
o Objection – It rests on one or more conditional facts; 104(b)
 Only on establishing his belief in the validity of the ordeal is his
refusal relevant – then probative of his belief that he would die
because he knew he was guilty
 Judge can allow connecting up to prove his belief
R. 403 Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or
Waste of Time – Although relevant, evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair prejudice, confusion of
the issues, or misleading the jury, or by considerations of undue delay, waste of
time, or needless presentation of cumulative evidence
o 403 is the second hurdle in relevancy
o Deals with evidence that is relevant, it has passed the any tendency test
 Any tendency is a very low threshold
o But probative value under 403 will be more difficult
 Burden is on the OPPONENT, not the PROPONENT
 Substantial burden for the opponent
o There are not specific rules for everything (there are some prepackaged
rules on legal relevancy) – 403 is a general concept, not specific
 Judge can always keep out otherwise admissible evidence w/403
State v. Mathis – Prosecutor sought to establish the D was poor
o Money he had + when he last worked to raise an inference that he had
motive to commit a crime involving theft
o It’s logically relevant, but it takes too large a toll on too many
 Penalized the poor, unfair
o Most important word in evidence is “purpose”
 P offered the evidence for another purpose, to undermine
credibility of D as a witness, but leads it back to his poverty
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o Under 403 it’s excluded for undue prejudice
o Conditional relevancy – could have been admissible to show he was
affluent after the theft without other explanation (insufficient here, though)
 Competing Inference
o Ex: Promissory Note – evidence introduced to raise an inference for the
need for money, but it might also show other things
 Any inference proffered by the opponent is known as a competing
inference
 Competing inferences may be raised on cross-examination, or the
D’s case in chief
o RULE – competing inferences go to the weight of evidence, not the
admissibility
 Nothing inherently relevant about evidence, but the RELATIONSHIP
between the evidence and what the proponent is trying to show
o Ex: Police officer charged with killing a member of radical group
 Relevancy of testimony about the anti-police beliefs of the group
rests on whether the D knew of victim’s membership in the group
 If D knew of victim’s membership it makes self-defense
more likely, OR alternatively;
 It affects the probability of a fact’s existence (that the
victim was the first aggressor)
 Judge might say you have to call the D first to prove the
conditional fact before the W comes in
2. Limited or Multiple Admissibility
 R. 105 Limited Admissibility - When evidence which is admissible as to one party
or for one purpose but not admissible as to another party or for another purpose
is admitted, the court, upon request, shall restrict the evidence to its proper scope
and instruct the jury accordingly
 Carbo v. United States – Ds charged with extortion/conspiracy regarding boxing
o One indicted co-conspirator seeks to have testimony regarding his
reputation as being a strong-arm man out
o The use of character as evidence of circumstantial conduct is an inference
which is prohibited (reputation, opinion, specific instance of conduct)
 Forbidden to use this to show his guilt
o But purpose here is to show reasonableness of others’ fear
 Can be admitted to show this, but practical quandary
o 104(b) relevancy conditioned on fact – it has to be shown they knew of his
reputation to demonstrate reasonable fear
 Doctrine of Multiple Admissibility – evidence that is admissible for one purpose is
admissible, notwithstanding that it might be excluded if offered for another
purpose
o They are protected by a limiting instruction of the evidence
 Limited admissibility
o R. 105 you must ask for limiting instruction, but if you do, the court must
grant it, if you don’t ask for it, it’s discretionary
3. Rule of Completeness
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R. 106 Remainder of or Related Writings or Recorded Statements – When a
writing or recorded statement or part thereof is introduced by a party, an adverse
party may require the introduction at that time of any other part or any other
writing or recorded statement which ought in fairness to be considered
contemporaneously with it
o Opponent may require introduction at that time or they will sometimes
bring it on cross, or just say the evidence shouldn’t be trusted
o You may also have another document submitted for completion purposes
o Purpose is to place the evidence in context
o Back to R. 102 – mantra you should argue is fairness, avoid misleading
4. Prepackaged Rules of Legal Relevancy: An Overview
 R. 407 Subsequent Remedial Measure – Changes made after an injury or harm
that would have made the harm less likely to occur are not admissible to prove
negligence, culpable conduct, defect, etc., but the evidence may still be used for
other purposes such as feasibility of precautions, ownership, impeachment
o Reasons for exclusion – the conduct is not in fact an admission and social
policy encourages people to take steps in furtherance of added safety
 R. 408 Compromise and Offers to Compromise – Makes evidence of settlement
or attempted settlement of a disputed claim inadmissible when offered as an
admission of liability or the amount of liability
o Broad protection for conduct and statements related to compromise
negotiations
o Only meant to shield settlement negotiations, but is not meant to apply in
non-settlement activities that would instead be characterized as occurring
in the course of regular business contracts
o Applies when statements in civil settlement negotiations are later offered
in criminal cases
o But it may be used to prove a W’s bias, negating a contention of undue
delay, proving and effort to obstruct a criminal investigation
 R. 409 Payment of Medical and Similar Expenses – Evidence of furnishing or
offering or promising to pay medical, hospital, or similar expenses occasioned by
an injury is not admissible to prove liability for the injury
o Opposing party giving such a payment or offer of payment may be made
from humane impulses and not from an admission of liability
o Any statements that may accompany the payment or offer of payment are
admissible under 409
 R. 410 Inadmissibility of Pleas, Plea Discussions, and Related Statements – In
civil and criminal, plea of guilty that is withdrawn, plea of nolo contendere, any
statement made in plea discussions with prosecuting attorney that don’t result in a
guilty plea or it is later withdrawn are NOT admissible
o Criminal counterpart rule to 408, seeks to facilitate plea bargaining by
providing confidentiality for statements made in plea bargaining
o Applies only to situations where a prosecutor has been involved in the plea
negotiations, unlike 408 and 409 where there is no limitation on the
identity of the negotiators
o But allowed if other parts of plea are introduced for fairness
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R. 411 Liability Insurance – Evidence that a person was or was not insured
against liability is not admissible upon the issue whether the person acted
negligently or otherwise wrongfully. This rule does not require the exclusion of
evidence of insurance against liability when offered for another purpose, such as
proof of agency, ownership, or control, or bias or prejudice of a witness
B. CHARACTER AND HABIT
 Law of Character – Evidence which seeks to show who an actor is as
circumstantial proof of what he or she did, an inference which the law disfavors
o Generalized description of one’s disposition or in regard to a general trait
o The law does allow character for other purposes
o “General propensity”
 Law of evidence does like the inference of conformity with a habit
o “Specific propensity”
o Is it logical to reason that one who exhibits a pattern (habit) or shows a
propensity (character) is more likely to do something?
 Yes, but evidence is selective, only likes habit
 What’s bad about character are strong policy reasons against it
 Problems of logical and legal relevancy of character
o 1. Character has slight probative value (not devoid, though)
o 2. Character creates inferences about people like good/bad person
o 3. Takes too much time – policy of judicial economy
o 4. Character evokes a response and jury can get confused, get the
impression the trial is about character as opposed to the facts
 If it comes in, it must be led by the D, but then the door is open to
the prosecution’s character Ws
 No limit on how many (611(a) – judge decides how many you call)
o 5. Confusion of the issues and unfair surprise
 Character: Framework for Analysis:
o START with general rule – Character is not admissible to prove conduct
 R. 404(a) Character evidence generally – Evidence of a person's
character or a trait of character is not admissible for the purpose
of proving action in conformity therewith on a particular occasion
o BUT two situations where character evidence is admissible
 1. Ok to use it when character is an issue in the case
 This is the only way character can come in in a civil case
 It’s very rare for character to be an issue
 Ex: Uxley v. Rock – Counterclaim that the wife libeled the
mistress by writing she is a “loose woman” would change
the admissibility of evidence since truth is a defense of libel
 JLV – The trait of parenting is an issue in the case
 Entrapment – If a D raises the defense of entrapment, D’s
predisposition to do a certain act becomes an issue
 2. Or it’s ok to use it under the 3 exceptions to 404
 404(a)(1) Character of accused:
o In a criminal case the D may open the door and
offer character by calling a good character W
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o Then the prosecution may rebut it by calling bad
character witnesses
o Must be “pertinent” – means relevant
 Ex; pertinent trait in robbery is showing the
D is peaceful because robbery is a violent
crime
 404(a)(2) Character of the alleged victim:
o In a criminal case if the D attacks the character of
the victim, they are open to being attacked by the
prosecution for the same trait
o These two exceptions are substantive character
 Means that this is evidence like all other
substantive evidence that is going to raise
reasonable doubt
o Or evidence of a character trait of peacefulness of
the alleged victim offered by the prosecution in a
homicide case to rebut evidence that the alleged
victim was the first aggressor
 404(a)(3) Character of a witness:
o Can bring in a character witnesses regarding the
truthfulness, etc., of a fact witness
o Character trait of truthfulness – also called
credibility
o Jury find the facts (substantive) and judges
credibility of witnesses
o Applies in civil and criminal, any case, any W,
process is the same, rules likely the same
R. 405 Methods of Proving Character
o (a) Reputation or opinion – In all cases in which evidence of character or
a trait of character of a person is admissible, proof may be made by
testimony as to reputation or by testimony in the form of an opinion. On
cross-examination, inquiry is allowable into relevant specific instances
of conduct
o (b) Specific instances of conduct – In cases in which character or a trait
of character of a person is an essential element of a charge, claim, or
defense, proof may ALSO be made of specific instances of that person's
conduct
405 governs procedure, how you do it
o 405(b) – Proof may ALSO be made of specific instances
 Where character is an issue, you may prove it in any of three ways
 405(a) reputation or opinion, 405(b) specific acts
 Specific instances will rarely be allowed, only when character is an
issue in the case
 Ex; Character was an issue in JLV so specific instance were
admissible
o 405(a) – Permits character by reputation or opinion
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Law of character requires that one have a reputation in a
community
 Goes to the reliability of the opinion, we want evidence that
is reliable and that this community is discernable
 Have to satisfy the court as to what this community is (ex;
law school community, company, even a family if it’s large
enough)
o You may not call a character witness in a civil case where character is not
an element of the case
REPUTATION under 405(a)
o 1. So you know the D/V/W or people who do?
o 2. How do you know about D/V/W/ (among associates/community)?
o 3. Are you familiar with D/V/W in the ___ community for ________
(character trait) as of the ___ day of ______, YR- / at this time?
 Important question, you have to pin down the character trait,
establish the relevancy and the foundation
 Can object to foundation otherwise
 Want to show that the victim or defendant had that pertinent trait
on that day
o 4. What was that reputation?
 Specific instances are not admissible to prove character
 So it can only mean he had a good or bad reputation
OPINION
o Questioning the W
 Do you know the D?
 How do you know the D?
 Do you have an opinion about his honesty?
o It must be rationally based upon the perception of the person
 The witness has to know about the person
o Specific instances of conduct are admissible to prove a basis for the
witness’ opinion
 Poses practical problems for court, but can give limiting instruction
 Instruct the jury not to consider this as proof of the D’s
character, only consider those specific instances as the
basis for the opinion
EX: Defense tries to get in information about widow’s husband that characterizes
him as a drunk
o Bereaved wife is entitled to damages, and reputation on the trait of
temperateness is admissible as circumstantial proof that widow didn’t lose
a whole lot—the guy was a ne’er-do-well to begin with
 Doesn’t violate 404a.
o Character evidence can be admissible for a purpose other than proof of
conduct
EX: Defendant charged with insider trading, civil case, but the underlying acts are
criminal, he tries to get in information on his integrity
o This is not a criminal case and character is not admissible
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o Character is not admissible in a civil case where character is not an issue
in the case
EX: Lawyer charged with subornation of perjury (criminal case) can call a good
character W to talk about reputation or opinion for a pertinent trait (integrity as a
lawyer)
o When it’s not an element of the case it must be opinion or reputation, not
specific acts
Michaelson v. US - Law doesn’t invest D with presumption of good character, but
closes the whole matter on P’s case in chief
o If D does bring in character, he opens the door and the prosecution may
test the validity and may bring in evidence to rebut
 Intended to allow a lot of latitude, door is wide open
But 405(a) – cross is limited to RELEVANT SPECIFIC INSTANCES and
contradictory evidence
o Rebuttal character is admissible – Extrinsic evidence of bad character is
allowed once the door has been opened
EX: D is charged with murder, they seek to offer evidence of victim’s violence
o 2000 amendment – when you attack the victim’s good character, you are
no longer shielded and the prosecution can attack the same character trait
 That witness cannot testify for the prosecution about the D’s
honesty, the trait brought in was violence
o If D’s reputation for violence is admitted, and D seeks to cross examine
the W on specific instances of non-violence, he can – 405(a)
 Proper cross examination on relevant specific instances of conduct
o If D calls fact W in case in chief to testify that the victim was the
aggressor
 Then the prosecution calls W on rebuttal to say victim’s character
is good, he wouldn’t have started the fight
 That’s ok, they’re rebutting the evidence, not character
evidence
 Special rule in homicide cases is that ANY evidence, doesn’t have
to be character, allows the prosecution to rebut
 In homicide cases, the prosecution can go first
Character and Expert Testimony
o Emerging body of decisional law where courts are struggling with the use
of experts and the extent to which they may raise a character inference,
and if so, what’s the court going to do about it
EX: Evidence of previous car accidents of D, P moves for motion in limine
o Not allowed – character cannot be used to prove conduct where it’s a civil
case and character is not an element of the case
o POLICY – lower burden of persuasion in civil cases accentuates the risk
of undue prejudice
ARTICLE VI – Witnesses
R. 608 Evidence of Character and Conduct of Witness
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o (a) Opinion and reputation evidence of character – The credibility of a
witness may be attacked or supported by evidence in the form of opinion
or reputation, but subject to these limitations:
 (1) the evidence may refer only to character for truthfulness or
untruthfulness, and (2) evidence of truthful character is admissible
only after the character of the witness for truthfulness has been
attacked by opinion or reputation evidence or otherwise
o Party who calls a W may not ACREDIT that W until he is first discredited
 Attack will be done by opinion, reputation, or otherwise
 “Or otherwise” – means an attack can take place on cross
 Where the attack takes place during opening statement, he can seek
to attack the credibility of the other side’s W before the evidence
has come in
 Some judges say that constitutes an attack and that the
party who calls that witness can Accredit
o (b) Specific instances of conduct – Specific instances of the conduct of a
witness, for the purpose of attacking or supporting the witness' character
for truthfulness, other than conviction of crime as provided in rule 609,
may not be proved by extrinsic evidence. They may, however, in the
discretion of the court, if probative of truthfulness or untruthfulness, be
inquired into on cross-examination of the witness
 (1) concerning the witness' character for truthfulness or
untruthfulness, or (2) concerning the character for truthfulness or
untruthfulness of another witness as to which character the witness
being cross-examined has testified
Worksheet – Character of Witness
o DIRECT - P
 W-1 is a fact witness, giving evidence that is governed by rules of
relevancy and personal knowledge
 Target witness – he’s the one we’re going after
o If we can discredit W-1, the jury is less likely to
believe him and find for the D
o CROSS – D
 Attack W-1 – Specific instances 608(b)(1) (or otherwise)
 W-2 may not be called if D doesn’t attack W-1 on cross
 Certain modes of cross-examining W-1 count as an attack and
certain things don’t
 Bias, hostility, prejudice do NOT constitute an attack
 608(b)(1) and 609 – Prior instances of misconduct, prior
convictions, do constitute an attack
 Purpose is to show he’s a dishonest witness
 608(b)(1) – Important because it constitutes an attack
 After attacking, the Plaintiff can then accredit W-1 by calling W-2
o PLAINTIFF
 Call W-2 to the stand as a good reputation witness
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Ask him if he’s familiar with W-1’s reputation in the law
school community for truthfulness at the time of the trial
testimony – that’s when time is relevant
o Foundation for 608(a) character is time of the trial
 If he’s an opinion witness, ask his opinion
o Basis for his opinion can go into specific conduct
 Then goes to cross examination
o DEFENSE
 As the D lawyer you get to cross-examine W-2 on relevant specific
instances of conduct pertaining to the person about who character
proof is offered 608(b)(2)
 Character trait that is led on direct is truthfulness as it
always is with 403 character
 You may ask W-2 any specific instances that pertain to
truthfulness
o No mandatory time limit, but would probably be
greater probative value the closer to trial
 608(b)(2) – “of another witness” refers to W-1, not W-2
o D’s CASE IN CHIEF
 Extrinsic evidence – another witness
 Calls W-3 as a bad reputation/opinion witness to attack W-1
 W-1’s reputation for being a truthful person
 Specific instances are admissible
 Then the P gets to cross
o PLAINTIFF
 Specific instances of W-1 manifesting truthfulness
 Cross examining a bad reputation witness, trying to tear
down that bad character
o REBUTTAL by the Plaintiff
 We want to rebut D’s evidence
 Call W-4 to talk about W-1, always go back to the target witness
HABIT
R. 406 Habit; Routine Practice – Evidence of the habit of a person or of the
routine practice of an organization, whether corroborated or not and regardless
of the presence of eyewitnesses, is relevant to prove that the conduct of the person
or organization on a particular occasion was in conformity with the habit or
routine practice
o It is a rule of inclusion, unlike 404 which is a rule of exclusion
o We like habit so it may be proved in any of the available modes
 Reputation, opinion, or specific instances (mostly this)
o Unlike character it’s not morally tinged, and is admissible in civil and
criminal
o It’s now admissible irrespective of eye witnesses
EX: W can testify to a pattern of behavior of the driver to life it to the status of
habit so that it will be probative that he acted in conformity with that habit
o Testimony the driver goes to that bar every night and drinks for a few hrs.
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o Circumstantial proof that he was drinking at the time he was driving
o Logically relevant under 401
o This is a very inclusionary rule – up to the advocate to persuade the court
that it belongs in some exclusionary category like character
 2 measuring sticks for habit evidence:
o 1. Regularity (adequacy or frequency of sampling)
 Conduct gleaned from a long period of time isn’t really enough
 It has to be semi-automatic
 Ex; dentist habitually advised patients of risks of a procedure
 Strong inference it’s done on a regular basis
 Ex; Victim had a habit of reacting violently to police
 Could be troubling, but court thought it satisfied regularity
 “Generally” is not a good word for habit
o 2. Uniformity of response to the environment
 Must be substantially the same for it to have a logical connection
 Eaton v. Bass – Evidence that a driver always checked the breaks of trucks did
rise to the level of custom/routine practice and HABIT.
o Circumstantial proof that the truck was checked on the day in question
C. OTHER CRIMES, WRONGS, OR ACTS
 R. 404(b) Other Crimes, Wrongs, or Acts - Evidence of other crimes, wrongs, or
acts is not admissible to prove the character of a person in order to show action
in conformity therewith.
o It may, however, be admissible for other purposes, such as proof of
motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident,
o provided that upon request by the accused, the prosecution in a criminal
case shall provide reasonable notice in advance of trial, or during trial if
the court excuses pretrial notice on good cause shown, of the general
nature of any such evidence it intends to introduce at trial.
 Proponents burden is to lift it to the status of one of these categories so that it
becomes good propensity evidence
o MIMIC KOP
 Motive
 Intent
 Mistake (or absence of)
 Identity
 Common scheme or design (not in rule, but widely used)
 Knowledge
 Opportunity
 Plan (or preparation)
 Underlying principle – 404(b) is admitted for non-character purposes
o Fine balance between character, which it’s not, and evidence offered for
some other purpose
 Rule takes a rather inclusive approach
o They contain a risk they jury will draw character inferences, so judges
have to be very careful in analyzing this evidence
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 Big potential for prejudice
 It’s also among the most devastating proof in a trial
Huddleston v. U.S. – The proponent must prove must prove the other act, wrong,
or crime by a preponderance of the evidence (low threshold)
o Rule of conditional relevancy (R. 104(b)) – requires in 404(b) cases that
the court determine that a jury could find a prima facie showing evidence
sufficient to support a finding, by a preponderance of the evidence, as to
the existence of a prior wrong
o This is the floor set by the SC
 Some states have risen it, given the potential for prejudice
Not reputation or opinion, exclusively specific instances of conduct
o Important to realize that the conduct may be an uncharged crime, an act
that’s not a crime at all, or it may be a criminal conviction
o Applies to both civil and criminal
As a general rule, the D must dispute the purpose before the prosecution may
offer 404(b) evidence – CANNOT be offered to rebut anticipated defense
o Dispute may be shown in various ways:
 D testifies and disputes the purpose of the 404(b) evidence
 Cross on prosecution’s witnesses
 Opening statement the attorney may dispute (not ordinarily a good
idea, then it paves the way for 404(b))
 Plea of not guilty in a specific intent crime places the matter of
intent in dispute
 Doesn’t apply for general intent crimes
o EX: Lawyer charged with subornation of perjury, he’s denying it
 It’s a specific intent crime, so the matter is in dispute
 Must still overcome matter of undue prejudice, repetition
 Burden on the opponent to show it’s outweighed
403 and 104(b) issues coming into play
o 1. The similarity of the other crimes, wrongs, acts
 Most courts take the position that the act must be similar to the
case at hand
 Odds of admissibility go up, the more similar it is
 Unclear that the other wrongs have to be similar or how similar
o 2. Duration in time between the other wrong and the charged conduct
 No time rule for 404(b) – some cases have allowed years without a
concrete upper limit
 Probative value dissipates at some point
 But duration in time goes to the weight, not its admissibility
Motive
o Sometimes linked with common scheme
o Courts will sometimes look to dictionary for definition
o Gang affiliation is particularly ripe for attack – looks very close to the
forbidden theme of character
Identity
o Ex; claim of mistaken identity, D says someone else did it
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o Issue of identity is placed into contest and the P offers other wrongs,
crimes, or acts that are similar to this act, which is probative of identity
o Anything that can be deemed probative of identity, raises an inference that
this is the guy
 Parties can agree to stipulate to certain facts to prevent them from being presented
to the jury in a more detailed form
o Ex; stipulate that I am a felon, don’t want the jury knowing what that
felony conviction was
o Court has wrestled with this – tends to move trial along, efficient, but on
the other hand, it deprives the proof process pursuant to the model
 In non-status situations, the court is to create a balance – relevancy
of evidence versus undue prejudice and makes a determination as
to whether the party is to be permitted to admit certain facts
 EX: Evidence of prior fights where the victim attacked others first
o Objection – specific instances may not be used to prove character
o Response – the evidence is being used to show specific propensity or
common scheme or design
 Likely allow the evidence in
 Notice Requirement under 404(b)
o In criminal cases, if D asks for it, the prosecution MUST provide
reasonable notice prior to trial or during trial, if the court excuses pretrial
notice on good cause
 Another disputed point – how specific does it have to be
o The rule left it more general – Not sure how much information is required
on what evidence will be brought
 Relevancy Problems with 404(b) Evidence
o 1. Low logical relevancy (401-403)
 Must lift it up, it has low logical relevancy otherwise
o 2. Disguised character (403)
o 3. Where D charged but not convicted of prior crime, jury may have sense
of retribution (403)
o 4. Fact finder may be less willing to listen to D’s evidence, less
conscientious about reaching correct result (403)
o 5. If D is not charged with prior crime and now contests guilt, proving D
committed it may involve a trial within a trial (403)
 No clear standard of proof
 See Huddleston v. US
D. PRIOR SEXUAL BEHAVIOR OF VICTIM
 R. 412 Sex Offense Cases; Relevance of Alleged Victim's Past Sexual Behavior
or Alleged Sexual Predisposition - (a) Evidence generally inadmissible. – The
following evidence is not admissible in any civil or criminal proceeding involving
alleged sexual misconduct except as provided in subdivisions (b) and (c):
o (1) Evidence offered to prove that any alleged victim engaged in other
sexual behavior.
o (2) Evidence offered to prove any alleged victim's sexual predisposition.
 Relates to the past sexual behavior of the victim
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o All activities involving sexual conduct qualify, but courts have said those
that imply sexual conduct can count too
 Proving use of contraceptives, birth of an illegitimate child,
venereal disease – all imply sexual conduct and thus evidence
along these lines has been inadmissible
Rule of exclusion – start with the ban and then go to exceptions
o Intent of the rule is to supersede any other Article IV rules
412(b) Exceptions
o (1) In a criminal case, the following evidence is admissible, if otherwise
admissible under these rules:
 (A) evidence of specific instances of sexual behavior by the alleged
victim offered to prove that a person other than the accused was
the source of semen, injury, or other physical evidence;
 (B) evidence of specific instances of sexual behavior by the alleged
victim with respect to the person accused of the sexual misconduct
offered by the accused to prove consent or by the prosecution; and
 (C) evidence the exclusion of which would violate the
constitutional rights of the defendant.
o (2) In a civil case, evidence offered to prove the sexual behavior or sexual
predisposition of any alleged victim is admissible if it is otherwise
admissible under these rules and its probative value substantially
outweighs the danger of harm to any victim and of unfair prejudice to any
party. Evidence of an alleged victim's reputation is admissible only if it
has been placed in controversy by the alleged victim.
EX: D wants to offer evidence that the victim consented to sex with other men in
similar situations – NOT ADMISSIBLE
o Cannot introduce victim’s sexual predisposition
o Cannot introduce evidence of other men
o 412 supersedes any ability to introduce evidence on reputation of the V
EX: D is charged with rape, and the victim previously had sex with his friend,
saying she was going to screw D after having sex with the friend
o Prior sex is not admissible under first two exceptions
o But what she said might be – look to her motive in saying that
 There are a number of situations where the Con trumps the policy
and language of the statutes (6th A – right to cross examine and
confront witnesses against you)
 But can’t allow X to testify about what she said and NOT what she
did – that would be a problem of ripping from context
 Ultimately up to the court to decide
Other reasons for Con approval
o Prejudice - courts have approved prejudice as being con required
o Knowledge – Victim’s prior sexual behavior to show the knowledge the
victim have about sex came from 3rd parties
R. 412(b)(2) Exceptions – In a civil case, evidence offered to prove the sexual
behavior or sexual predisposition of any alleged victim is admissible if it is
otherwise admissible under these rules and its probative value substantially
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outweighs the danger of harm to any victim and of unfair prejudice to any
party. Evidence of an alleged victim's reputation is admissible only if it has been
placed in controversy by the alleged victim.
o Burden of proof in civil cases of sexual battery/harassment is on the
proponent (Flip flop of the burden in most evidence rules)
o Differs in 3 respects from 403
 1. Burden shifted to proponent
 2. Threshold of admission has been raised
 3. Puts harm to the victim on the scale, in addition to prejudice to
parties
o Prior false accusations by the victim are not prior sexual behavior, so 412
doesn’t apply there, but a foundational determination must be made to
show they really were false
E. PRIOR SEXUAL MISCONDUCT
 New Rules FRE 412-415 deal with criminal cases
o Came around in the 90s out of demand for firmer handing of sexual
assault cases
 R. 413 Evidence of Similar Crimes in Sexual Assault Cases
o Specific instances of conduct to prove prior sexual assaults are admissible
on any theory of relevancy, including character
o Exception to the prohibition on character
 Rule 414. Evidence of Similar Crimes in Child Molestation Cases
o In a criminal case where the D is accused of child molestation, evidence of
previous offenses of child molestation are admissible
o Almost identical to 413, but for child molestation
 Temporal scope:
o Courts are very flexible, tend to allow prior acts from remote periods
 Rule 403 balancing test:
o Transcends these analysis, assures constitutionality of the statute
 Rule 415. Evidence of Similar Acts in Civil Cases Concerning Sexual Assault or
Child Molestation
o Allowed in a civil case, but must disclose it to the other party
F. SIMILAR HAPPENINGS (FRE 401, 402, 403)
 Doctrine of similar happenings – requisite showing that will generally have to be
made to get this evidence in
o Like other prepackaged rules, it’s a fairly low threshold of sufficient
similarity
 If P has asserted other claims like the one in this case and you can show they are
substantially similar, such evidence is admissible to prove this case is fraudulent
o But still concerned bout protecting litigants from unfair prejudice
 Firlotte v. Jesse – P sued D because after the contract to use the 200 acres, he took
his livestock off the parcel an came back and discovered the D’s cattle on the
property eating everything
o P prevailed because another witness testified that they had an almost
identical conversation and that there was no mention of a reservation by
the D to use the land for any purpose
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o D said it was something between others, collateral, not admissible
 Court – it was logically relevant and a collateral matter is
admissible as long as it’s relevant
 OK as long as no undue prejudice
o Other contract is similar – establishes it as being material and relevant
 Must lift it up to the level of being sufficiently similar
o EX: Can show contracts between nonparties to show what the P was worth
as a baseball player before an accident
 Have to be similar to the P, position, skill
 If he had received any offers yet and what they said
o EX: Other sales of property to show value of a house
 Other accidents, injuries – Must be to the circumstances in dispute
o EX: P slips on water at Kroger, she is able to show other injuries of a
similar nature to show a condition or defect
 Other defects, dangerous conditions
o Ex; congestive heart failure from chemotherapy
 Index of similarity
o It’s sometimes really easy and intuitive like the water at Kroger
o But a certain regimen of chemotherapy is more difficult
 Because of similarities that the particular chemical caused it
III. Examination of Witnesses
A. Competency (FRE 601-606)
 Competency – an independent judicial determination made by the judge
o Likely reviewed by the abuse of discretion standard
o Judge is a good person to make a determination of the demeanor of the W
 R. 601 General Rule of Competency – Every person is competent to be a witness
except as otherwise provided in these rules
o The law presumes competency
 R. 602 Lack of Personal Knowledge - A witness may not testify to a matter unless
evidence is introduced sufficient to support a finding that the witness has personal
knowledge of the matter
o A specialized application of 104(b), the law requires that you had the
opportunity to observe and did in fact perceive that which you are going to
talk about
o Requirement of personal knowledge is low
o Advisory Committee – Satisfied if the person THINKS he knows
o Not a big priority; there’s a preference to examine the W through the
prism of credibility rather than competency
 R. 603 Oath or Affirmation - Before testifying, every witness shall be required to
declare that the witness will testify truthfully, by oath or affirmation administered
in a form calculated to awaken the witness' conscience and impress the witness'
mind with the duty to do so.
o Intended to get the witness to manifest consciousness of being truthful
o Courts have interpreted this very deferentially to the judge as long as
judge shows the W has some sense to be truthful and says something
 R. 605 Competency of Judge as Witness – The judge may not testify
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R. 606 Competency of Juror as Witness – Juror may not testify about the
deliberation, except if there has been extraneous prejudicial information was
brought to them, other outside influence, or mistake in entering the verdict
Tanner – SC distinguished between the extraneous influence exception and the
use of drugs or alcohol by members of the jury who were falling asleep at trial
Common Law Requirements:
o 1. Oath or affirmation - ritualized acknowledgment by a prospective W to
show appreciation for being truthful. Must state the oath as a general
proposition when presented by the court, a commitment to contributing
truth is assured.
 The history of CL has been one of steady erosion of formality and
elevation of substance over form.
 Threshold becomes low to satisfy oath req. for competency
o 2. Perception – capacity of prospective W to have perceived through the
available senses at the time of the event.
 W saw or heard or felt it.
o 3. Memory/Recollection – the capacity of W at THIS TIME during the
trial, to recall events that took place at a prior time.
 If the W thinks he knows/says he knows that satisfies the req.
 How much weight should be given goes to credibility
 There’s always a second reading between competency and then for
credibility
o 4. Communicative ability/ Narration: Not highly disputed. Ensure
prospective W has capacity to understand Qs and narrate answers.
 Weight to be given is for fact finder to determine under credibility
analysis.
EX: Witness of a robbery has limited mental capacity, does the court grant the
psychiatric evaluation and should he be allowed to testify?
o Yes, there must be a hearing on competency
o Burden is on the proponent of the motion who wishes to exclude the W to
rebut the presumptive competency of W
o No mental or moral requirement under modern FRE
o R. 706 Court Appointed Experts – The judge has discretion to grant a
request or order an examination of the W
o R. 614 Calling and Interrogation of Witnesses by Court – On its own
motion or on request of party, court may call Ws
 Ordering the intervention of an expert to test the law of
competency
EX: Father is accused of sexually assaulting daughter, on cross it seems like she is
making it up with help of the mother, Defense moved to strike all testimony
o Issue – should court grant motion to strike? Should she have been
permitted to testify?
o Court says: There’s no reason to think that competency should be
implicated when W caves in on cross – after all, the idea is FOR the W to
cave on cross
 This is a question of credibility on cross
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The judge does have the power to revisit competency, but only in extraordinary
cases – when the W is incompetent and should be stricken
o Unlikely that courts will revisit competency issues
o Shouldn’t conduct competency hearing in front of jury – could be unduly
prejudicial and could be a 403 error that affects sub. R of a party
 It’s possible that inadmissible evidence will be raised in a
competency hearing
o Considerable case law that any further competency issue should be dealt
with through the prism of credibility
 Problem we haven’t come close to solving in evidence law – should the court
make a determination as to the competency of a hearsay declarant
o No cross possibility of the declarant, means we should be very concerned
about the trustworthiness of what the declarant said to the witness
 Laws of evidence are silent on this
 Norfleet – illustration of how a court can be overzealous in what they require
o Stands for the important proposition that competency is discretionary with
the court and where the evidence is needed in a criminal case, doubts
should be decided in favor of credibility
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B. DIRECT EXAMINATION
 R. 611(c) Leading Questions – No leading question on direct/re-direct, except as
may be necessary to develop W’s testimony
o Leading – suggests the answer, NOT leading just because it may be
answered yes or no
 Risk of substitution of thoughts and words or the lawyer for those
of the witness
 Scott v. State – Leading questions is a province of the trial judge, very unlikely
that an appellate court is going to find an abuse based on leading, but it could
 Leading may be allowed:
o 1. Preliminary or background matters (CL)
o 2. Undisputed matters (CL)
o 3. Inconsequential details (CL)
o 4. Transition to new topic
 Transition/leading is a recognized purpose of moving
trial along and setting stage
 (Question which calls for a narrative:
 Narrative can serve efficiency/economy if disciplined
 Can also enter things we don’t like, like character
 2 problems:
o 1. They don’t give the opponent an opportunity to
interpose an objection
o 2. Could provide inadmissible evidence, hearsay,
comment on personality)
o 5. Refresh recollection
 One device for establishing memory loss, which is the threshold
requirement for memory devices
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 You should ask permission to lead on a refreshing Q
o 6. Hostile W (611c)
 Manifests personal antagonism to certain party or their COA
 Either before or at trial, shows dislike, disrespect, or hostile to a
party or their lawyer
 Ct will make a finding that = hostile W and then you can lead
o 7. Reluctant W
o 8. Adverse W (611c)
 Anyone listed on other sides’ witness list = adverse witness.
 Don’t really have to ask for leave
o 9. W who has trouble communicating
o 10. Foundation for exhibits
 A policy of necessity – allow leading because no other form of Q
is reasonable or effective
o 11. Expert Ws
 On the theory that it is unlikely that the expert will permit
substitution of language, not as concerned they’re susceptible
C. USE OF WRITINGS IN EXAMINATION OF WITNESSES
 General rule – witness may not read from a prepared memorandum or writing
o At best it’s a prior consistent statement that is admissible in certain
instances
 R. 612 Writing Used to Refresh Memory – If a W uses a writing to refresh
memory for purposes of testifying, an adverse party is entitled to have the writing
produced at hearing, to inspect it, to cross-examine W thereon
 803(5) Recorded Recollection – A memorandum or record concerning a matter
about which a witness once had knowledge but now has insufficient recollection
to enable the witness to testify fully and accurately, shown to have been made or
adopted by the witness when the matter was fresh in the witness' memory and to
reflect that knowledge correctly...
 Present Memory Refreshed vs. Past Recollection Recorded
o Refreshing Memory – an exception to the leading questions, allowed to
jump start memory, low threshold
 Not offered for substantive purposes
 W looks at it and then testifies independent of it, can’t read from it
 Any object that jumpstarts memory is ok
o Past Recollection Recorded –when you want to SUBSTITUTE witness’
lost memory, W doesn’t testify, so proponent seeks to offer into evidence
the recollection that was recorded at that time, higher standard
 Writing made at time when memory was fresh
 Or someone else prepared the writing and W read it at the
time, and can testify today that she read it at the time,
approved it, and adopted it
 That it was accurate when made and necessary to come into
evidence
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Baker v. State – Defense wanted to be permitted to use leading questions and
documents to refresh the memory of a police officer, who had previously said he
heard the dead victim say the defendant was NOT the criminal
o Attorney attempted to give the officer a report by another officer to refresh
memory, judge thinks he wants it for substantive evidence, doesn’t let it in
o Purpose – Lawyer’s purpose was to jump-start his memory with the report
 If your purpose is to offer the document as a recorded memory,
that’s a substantive purpose, and since it’s an out of court
statement it’s hearsay
o Deemed error here to refuse refreshing memory with a document
 Objection on R. 1002 Original Document Rule - To prove the content of a writing,
recording, or photograph, the original writing, recording, or photograph is
required, except as otherwise provided in these rules or by Act of Congress
o You’re not offering the document to prove it’s content when you refresh
 R. 612 – Distinguish between refreshing memory at trial and before trial
o At trial 612(1)
 The adverse party has the right to give up the protection that this
not be allowed in as substantive evidence
 You have a right to use it on cross-examination
o If it’s done before trial 612(2)
 Can ask to see any document the W reviewed
 General rule – where the documents are used for trial preparation,
work product and privileges are waived
 Documents should be discoverable
IV. Real, Demonstrative, and Visual Aid Evidence
A. REAL EVIDENCE (FRE 401 – 403, 901 – 903, 104b)
 Categories of Evidence
o 1. Testimonial
 Competency, direct examination
o 2. Real
 Tangible objects
 Something that is retrieved from the real world and brought into
the court room
o 3. Demonstrative evidence
 Fair and accurate representation of something from the real world
 Illustrative or visual aid
o 4. Documents and writings
 Exhibits – general term, physical object can be real, demonstrative, documents
 R. 901 Requirement of Authentication or Identification
o (a) General provision – The requirement of authentication or identification
as a condition precedent to admissibility is satisfied by evidence sufficient
to support a finding that the matter in question is what its proponent
claims
 R. 902 Self Authentication
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R. 903 Subscribing Ws Testimony - The testimony of a subscribing witness is not
necessary to authenticate a writing unless required by the law of the jurisdiction
whose laws govern the validity of the writing
Analytical Framework – 5 legal issues
o 1. Relevancy – FRE 401-403
 If this is sustained, you can’t go any further
o 2. Authentication/Identity – FRE 901-903 (104(b))
 Exhibit has to be genuine, authentic, come from authentic source
 901 – proponent of the evidence has the burden of showing it is
what he claims it to be
 Specialized application of the rule of conditional relevancy
 Rests on relevancy of facts which show it’s genuine
o 3. Hearsay – FRE 801-807
 In all cases with an exhibit, 1 and 2 must be addressed, but in some
exhibit issues, you must address hearsay, in addition to those two
o 4. Original document or best evidence rule – FRE 1001-1008
 Documents and writings
o 5. Privilege – FRE 501
Every time there is an exhibit, run through these (BARPH)
o Best evidence
o Authenticity
o Relevance
o Privilege
o Hearsay
Exhibits – Practical aspects of getting them into the trial
o 1. Witness(es) need to authenticate
 Who must I call, which Ws, through whom will I make the offer?
o 2. Litany required to authenticate
 You are expected to lead here, and with authenticity in particular,
there are magic words
 Have to ask legal questions – is P’s exhibit a fair and accurate
representation?
o 3. Purpose or theory of relevancy
 Have to have a foundation behind you which establishes this thing
in the real world
o 4. Publication
 How you advance your persuasive argument
Laying the Foundation for Real Evidence
o 1. Relevant – If it’s appearance or some physical characteristic advances
the inquiry
 Factual foundation of relevance (401-403)
 Have to show that it’s going to prove a disputed fact
 Good lawyer lays a testimonial foundation of relevancy, bring in a
W to testify about an exhibit
o 2. Authentication – The witness can identify the object as the real thing or
looking like the real thing
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1. Witness must identify the exhibit (901(a), (b)(1))
 Matter is what it is claimed to be (901(b))
 2. Connection to D or other party (104(b), 901(a))
 Can be difficult when the object is subject to tampering
 Authentication of fungible real evidence takes place by the
“chain of custody” or possession
 Problem A – Chain of Custody
o You must deal with authenticating fungible evidence
o You’ll likely deal with 104(b) issues of conditional relevancy
 If you call the chemist first (end of the chain of custody) you have
the problem that there’s been no showing that the drugs are
connected to D
 Going to have to connect up through Ws
o Purpose of chain of possession rule was to ensure proper justice by the
state
o All agree that with a fungible item, a chain of possession is required
 McCormack – If it’s non-fungible, don’t need chain, but many
states do require it
 Pre-federal rules courts were using words like reasonable
probability for the degree of certainty
 Modern – 104(b) low threshold
 Very fact sensitive
 Hard to prove the level of probability of tampering
 EX: Burger with E coli that kills a boy, chain of custody of the burger
o Police officer can bag and tag evidence to try to convert it into nonfungible
o Central issue – causation, showing the E coli was present in the burger
o Attack authenticity – have to be specific and show where the chain has
been broken, where authenticity was lost
 Fendley – Passenger sues another driver, wants evidence of that driver’s blood to
show he was intoxicated
o Evidence was taken, but no evidence that the blood that made it to the lab
was the D’s blood – NO chain of custody
B. DEMONSTRATIVE EVIDENCE/SILENT WITNESS THEORY
 EX: Police want to show a jimmy was used to move a shaft, in order to rebut D’s
argument that he fell on the roof and was just trying to escape
o Physical appearance is relevant – a particularly unique object was used to
remove the shaft
o Foundational framework
 Relevancy – the physical appearance renders a fact in dispute more
or less probably than if we didn’t have the evidence
 Authenticate – Ask officer to identify the exhibit, he knows it’s the
real one because he bagged and tagged it
 It’s fungible, so need to lay a proper foundation through the
chain of custody
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Demonstrative Evidence – Evidence that is not the real thing but is a fair and
accurate representation
o Factual foundation for relevancy – witness must have knowledge, so the
testimony is the same
 Then go to demonstrative evidence
 Not required to tell the jury it’s not the real evidence
o EX: The jimmy has been lost
 Ask the police officer is the exhibit is a fair and accurate
representation of the jimmy he described
 It is authenticated as an illustration of what the witness described
Real vs. Demonstrative Evidence
o Real evidence – substantive purpose
o Demonstrative – illustrate the testimony and the testimony is the
substantive evidence
 Something that can be seen felt, so it raised concern that a jury
might be unduly swayed by this
 Frequently arguing rule 403 with real and demonstrative
evidence
o Difficult to keep real or demonstrative evidence out
on ground of logical relevancy
o Most of the debate will be on prejudice
Pictorial testimony theory of demonstrative evidence
o Photo or other exhibit – Once testimony has been established by one with
personal knowledge, then the photo is shown to be a fair and accurate
representation and admitted to illustrate the testimony of the witness
EX: Wife is asked to authenticate photo of her deceased husband
o Does the evidence raise certain inferences regarding some proposition
sought to be proved (damages)
 Yes, seeking to prove her damages through her testimony
 Lay the testimonial foundation – P’s lawyer has to demonstrate it
as a fair and accurate representation
o After she has testified about him, go to the exhibit:
 Leadings questions ok here to start
 Purpose is to illustrate relevant testimony, which is the substantive
proof
o May be an objection on foundation that he is being represented a few
years ago, since she is entitled to damages when he died
 Ask authenticating question – does this exhibit look like husband
as you described him on the morning in question
EX: Husband accused of killing wife in a ditch, photo of the place where the wife
is found, taken by a surveyor 2 years before
o All you need is a W who can authenticate it as a fair and accurate
representation as of the time Mary was found in the ditch
o Up to the opponent to raise any authenticity issues
o Practical application
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1. Witness – call someone who can authenticate it as a fair and
accurate representation on the date in Q
 2. Litany - fair and accurate representation, use the language the
court expects
 3. Purpose – Testimony will seek to establish the theory of the case
 If a W can describe it, a picture can show it, generally
 Don’t need photographer and doesn’t matter when it was
taken
 But picture can be fair and accurate and still unduly
prejudicial
o Police ambulance in background will be too
prejudicial
 4. Publication – show that picture to the court
Silent Witness Theory
o Sometimes there are cases where there is no authenticating W
 No W to lay the testimonial foundation for relevancy to say this is
a fair and accurate representation
 Theory is that the photo becomes the W and a further foundation
must be established for the evidence to be received for evidence
o Photo is admissible pursuant to the silent W theory
 Derives it’s name from the fact that the photo becomes the W
 Must lay a very elaborate careful foundation to authenticate a
photo where we don’t have an authenticating witness
 X-Rays – no one can say they’re fair and accurate rep, but we have
technology and an elaborate foundation we can lay to show the
content of that photo should be displayed to the fact finder
o Bergner v. State – No W to testify about the act being done in the photo
 Automatic mistrial to call the D in a criminal case, so no
authenticating W
 Ex-Wife is called and testifies to factors in the photo that make her
believe it’s her ex-husband
 The photo becomes the W and if the foundation can be laid, then
the photo comes in for substantive purposes
o NEED and RELIABILITY
 1. Identify person/s in photo
 Someone must testify to the identity of the person in it
 2. Installation of film, function of camera
 Date photograph was taken, installation of film,
programming of camera, or even identifying unaltered
photos
 3. Removal, processing of film – ensures authenticity
 Photograph not altered
 4. Chain of custody
 Film – fungible
EX: Boy Scouts being branded, if they don’t testify, any other way you rpove it is
going to require some testimonial foundation for relevancy
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o May authenticate the coat hangar as real evidence
 Ask W if he can identify the real evidence and then authenticate
with proper questions
o Opponent might make the argument that the exhibitions are unduly
prejudicial and since the W can testify about it, no need to show it
 No FRE rule on this, just CL
 Subject to a method of proof being unduly prejudicial or taking too
much time, the advocate can generally prove the disputed fact in
whatever way they want to
 Rarely will it happen that a judge doesn’t allow it
 If a witness can testify about it, a photo or demonstrative
evidence is generally allowed to show it
o If there are photos of the injury, anyone who saw the injury can
authenticate them in court
 Simulation
o In court reenactments using the real evidence or demonstrative evidence
o Require a foundation of substantial similarity (equivalent to fair and
accurate representation really)
 Very difficult calls for judges
 Sometimes too much time, sometimes it doesn’t turn out
the way rehearsed
o Once the foundation is laid, it’s pretty much 403 after
 Significant risk of feigning in reenactments, exaggerating
o Another problem with reenactment is the difficulty of cross-examination
 May be 6th A right to cross-examine problem
o Defense will fight this – feigning, problem of cross-examining, response
from jury that is not in line (logical problem)
 Judge’s discretion will prevail – but in criminal, you’ll have 6th A
claim on appeal (Chapman)
o Reenactment is a culmination of real and demonstrative evidence
C. ILLUSTRATIVE/VISUAL AIDS (FRE 401-403, 901)
 Illustrative aids are props, they’re physical objects
o May be writing on the blackboard, chart on an easel that is partially
prepared and may be added to by a witness
 Illustrative aid is not a fair and accurate representation of anything
o It’s purpose is to assist a witness to testify
o They are relevant only because of the assistance they give to the trier in
understanding other real, testimonial and documentary evidence
 Most courts want it marked, but it’s not offered into evidence
o Though it may evolve into demonstrative evidence
D. VIEWS/EXHIBITS IN JURY ROOM
 “View” – venturing forth to observe places or objects that are material to
litigation but which cannot feasibly be brought, or satisfactorily reproduced,
within the courtroom
o Judge has wide discretion on whether or not to grant them since they can
be very time consuming
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o Some courts hold a view is not itself evidence, only purpose is to assist the
jury in evaluating the evidence
o Better view is that it’s an independent source of evidence
 Exhibits in the jury room – common practice to allow tangible exhibits in
o Widely viewed as discretionary by the judge
o Crucial documents where the wording matters are often let in
o Taking in other tangible documents is weaker, but still well established
E. COMPUTER-GENERATED EVIDENCE
 Technology raises certain evidence issues
o Much evidence, documents, and records almost always in digital format—
admissibility issues involving hearsay and authenticity
o Computer generated animations and simulations – relevance and expert
testimony questions.
 Theory of admissibility
o Distinction
 Computer stored information – entered into a computer
 Records of regularly conducted activity – 803(6) that
record can be admitted in court
 Computer generated information – human doesn’t do anything, but
rather the machine generates the information (ex; telephone bill)
 Courts are increasingly recognizing that computer
generated information is not hearsay
 803(6) business records exception to hearsay – stored information
o 1. Have to show the record reflected regularly conducted activity
o 2. Made at the time of the recorded event
o 3. Have to show that the person had a duty to do it correctly
o 4. Have to show it’s not being prepared for the lawsuit
 Ex: To admit a computer generated bill, you have someone from AT&T come and
say that it is created routinely and accurately by a computer system that we test to
ensure it works well
o Alternative theory – no human involvement, not a statement
 Animations and simulations
o 2 types of computer generated evidence
 Computer animation – depiction of an act, event, or transaction
used to illustrate W’s testimony
 Essentially a demonstration, not the W
 Computer simulation – an attempt to recreate the act through the
employment of scientific or technical principles to prove what
actually happened
 Becomes the W
 Relevant, authentic, not prejudicial
 But also have to pass Daubert test (federal)
o Judge has to make sure it’s real science
o Ex; proper method of intubating a child or car accident simulation
 Demonstration – Foundation
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o 901 – Demonstrative evidence must be an accurate representation of the
evidence in the record to which it relates
o 402 – Animation must fairly express or illustrate the testimony of a
witness so as to be helpful to the jury’s understanding of the testimony.
o 403 – Because of its dramatic power, proposed animations must be
carefully scrutinized for the potential of undue prejudice.
V. Documents and Writings
A. AUTHENTICATION (FRE 901-903, above)
 R. 901 Requirement of Authentication or Identification (above)
 R. 902 Self Authentication - Extrinsic evidence of authenticity as a condition
precedent to admissibility is not required with respect to the following:
o 1. Domestic public documents under seal
o 2. Domestic public documents not under seal
o 3. Foreign public documents
o 4. Certified copies of public records
o 5. Official publications
o 6. Newspapers and periodicals
o 7. Trade inscriptions and the like
o 8. Acknowledged documents
o 9. Commercial paper and paper documents
o 10. Presumptions under Acts of Congress
o 11. Certified domestic records of regularly conducted activity
o 12. Certified foreign records of regularly conducted activity
 2 Main Issues – (1) Whether the writing or document depend for its relevancy on
certain authorship, and (2) the original document rule
 1. Whether the writing or document depends for its relevancy on certain
authorship:
o EX: On the issue of the value of a piece of land, P would like to put in a
document from the school district of an offer of a higher price
 Most documents are NOT self-authenticating
 Generally must be authenticated by a W
 Self-Authenticating under R. 902(8) deals with documents that are
acknowledged
 Enough to deem it self-authenticating because it has been
notarized
 Remember – just because it’s been authenticated, doesn’t mean it
satisfies all other legal rules (relevance, hearsay, etc.)
 NOTE – This is not a public document executed under seal
 It’s notarized by a notary’s seal, not one of the school dist.
 Public document versus corporate document
 No rule providing for self-authentication of a corporate seal
 Possibly a 902(8) document if properly acknowledged
o EX: Libel action by shop owner, Fuller, against customer who accused
him of stealing her toaster in a letter printed in a newspaper
 Q of authentication:
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Does a writing, the original letter, depend for its relevancy on
certain authorship – YES
 This is decided under 104(b) and 901(a)
o If the signature of that letter can be authenticated,
then it’s relevant, if it can’t, then it’s not
o Article 9 authentication 901(a) or possibly (b)
 Specialized application of 104(b)
 Proponent must offer evidence sufficient to support a
finding that the signature is that of McCray
o It becomes relevant if it can authenticated
 Second issue – If the P sued the newspaper as a party defendant,
then the Q would be the authenticity of the printed letter that was
published by the newspaper
 902(6) making newspapers self-authenticating
 But 902(6) has no bearing on the letter of McCray or the
authentication of her signature
 Central problem is to prove authorship of the letter
 901(b)(2) – establish familiarity with the signature
 Probably the most frequently utilized method for
authenticating a signature
How to authenticate signature of X
o 1. Stipulation
 Stipulation = an agreement to the authenticity (not necessarily to
the relevance)
 Things like pretrial conference where the goal is to settle the issues
and narrow down the focus of the trial
 Save time and costs
o 2. Judicial admission (FRCP 36)
 Ask the party to admit it’s their duly executed signature
 Rule 36 – failure to admit or to deny may be construed as an
admission after a certain period of time
o 3. Testimony of X
 Call X as a W to testify about it
o 4. Testimony of W who witnessed signature of X (901(b)(2))
o 5. Testimony of W familiar with X’s signature (901(b)(2))
o 6. Testimony of E handwriting analyst (901(b))
o 7. Display handwriting samples to the jury for their own comparison
o 8. Circumstantial evidence
 Raise an inference that the signature on the document is the
buyer’s signature with outside information
o 9. Certificate of authenticity
o 10. Twenty years of age (901(b)(8))
 Goes to genuineness, not truth of document per 803(16)
o 11. Distinctive characteristics (901(b)(4))
R. 901 Requirement of Authentication or Identification
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o (a) General provision – The requirement of authentication or identification
as a condition precedent to admissibility is satisfied by evidence sufficient
to support a finding that the matter in question is what its proponent
claims
 (b) Illustrations
 1. Testimony of witness with knowledge
 2. Non-expert opinion on handwriting
 3. Comparison by trier or expert witness
 4. Distinctive characteristics and the like…
 5. Voice identification
 6. Telephone Conversations
 7. Public Records or reports
 8. Ancient documents or data compilation
 9. Processor system
 10. Methods provided by statute or rule ….
 R. 901: Condition precedent to admissibility, specialized application of 104(b)
o 901(b)(5 and 6) – statements over the phone are covered
 901(b)(5) – satisfied once the evidence shows the witness is
familiar with the voice of X, but it tends to be raised in phone calls
more than a conversation in the proximity of the witness
 2. The original document rule
o In seeking to prove the content of a R. 1001 instrument (writings and
recordings; photographs) you must do so by offering the original
 Rule that’s deeply embedded at common law
 (Remember, overruled when being used to refresh memory)
B. ORIGINAL DOCUMENT OR “BEST EVIDENCE” RULE
 R. 1002 Requirement of Original – To prove the content of a writing, recording,
or photograph, the original writing, recording, or photograph is required, except
as otherwise provided in these rules or by Act of Congress
o Historically called the “best evidence rule”, but it’s not a hierarchy of
probative value to determine what would be the best way to prove a fact
 Big misnomer, probably better to call it the original document rule
o R. 1004 Admissibility of Other Evidence Of Contents – You can prove the
content of a writing, recording, or photo with secondary evidence but you
must prove one of the excuses
 (1) Originals lost or destroyed
 (2) Originals not obtainable
 (3) Originals in possession of opponent
 (4) Collateral materials
o Not everything a W says about a 1001 instrument is bared by 1002
 There are things which a witness has personal knowledge that
doesn’t trigger the original document rule
o At CL it was extremely important, but in modern law practice, with all the
means of electronic storage, we’re not as concerned about this rule
 R. 1001 Definitions
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o “Writings and recordings” are now broadly defined to include any form of
data compilation.
o “Photograph” includes x-ray films, film and video recording.
 OG photo not required when merely used as illustrative aid.
EX: Parties to a contract agreed to tape regarding the terms
o If they try to talk about those terms ta trial, objection on original document
rule will be sustained since you are seeking to prove the content of a 1001
document and you need to provide the original tape
o They agreed their conversation would be superseded by the taping
Application of rule to inscribed chattels is discretionary with the court
o EX: Prosecution wants police officer to testify that a cap of dynamite was
marked “Boom Brand”
 Purpose of the OG document rule was a reduction in hazards of
mistransmission
 View tends to be that the loss of detail through transmission is
ordinarily not as much of a problem in these cases, so the rule is
not generally applied
 Minimal risk that testimony on a chattel is not going to be accurate
Content versus just being illustrative of the testimony of the W
o EX: D is charged with selling porn to a minor, can the prosecution have a
W testify as to the content of the photo
 Frequently see someone ask the W to describe what is in a photo,
seeking to prove the content of a 1001 instrument
 Not allowed under OG document rule
o If you must prove the content of it, then you lay a foundation about the
transaction or occurrence that relates to it and then offer the original photo
o When you go to the exhibit before you’ve laid a testimonial foundation for
relevancy, you invite an OG document rule objection
R. 1003 Admissibility of Duplicates – A duplicate is admissible to the same extent
as an original unless (1) a genuine question is raised as to the authenticity of the
original or (2) in the circumstances it would be unfair to admit the duplicate in
lieu of the original
o Now: any process or technique which accurately reproduces the original is
defined as a duplicate and is generally admissible to the same extent as the
original
 Doesn’t include hand made copies or manually prepared transcripts
R. 1005 Public Records – The contents of an official record, or of a document
authorized to be recorded or filed and actually recorded or filed, including data
compilations in any form, if otherwise admissible, may be proved by copy,
certified as in accordance with 902 or testified to be correct by a W who has
compared it with the original. If a copy which complies with the foregoing cannot
be obtained by the exercise of reasonable diligence, then other evidence of the
contents may be given
R. 1006 Summaries – The contents of voluminous writings, recordings, photos
which cannot conveniently be examined in ct may be presented in the form of a
chart, summary, or calculation. The originals, or duplicates, shall be made
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available for examination or copying, or both, by other parties at reasonable time
and place. The ct may order that they be produced in court
 R. 1007 Testimony or Written Admission of Party – Contents of writings,
recordings, or photos may be proved by the testimony or deposition of the party
against whom offered or by that party’s written admission, without accounting for
the nonproduction of the original
 R. 1008 Functions of Court and Jury – When the admissibility of other evidence of
contents of writings, recordings, or photos under these rules depends upon
fulfillment of a condition of fact, the Q whether the condition has been fulfilled is
ordinarily for the court to determine in accordance with the provisions of 104.
However, when an issue is raised (a) whether the asserted writing ever existed, or
(b) whether another writing, recording, or photograph produced at the trial is the
original, or (c) whether other evidence of contents correctly reflects the contents,
the issue is for the trier of fact to determine as in the case of other issues of fact
VI. CROSS EXAMINATION AND IMPEACHMENT
A. SUBJECT MATTER – SCOPE RULES (FRE 611(b))
 R. 611 Mode and Order of Interrogation and Presentation:
o (a) Control by court – The court shall exercise reasonable control over the
mode and order of interrogating witnesses and presenting evidence so as
to (1) make the interrogation and presentation effective for the
ascertainment of the truth, (2) avoid needless consumption of time, and (3)
protect witnesses from harassment or undue embarrassment.
 Plenary authority over the mode and proof at trial
 Judge has almost unfettered discretion with a view to addressing
the policy in 611(a), comes into play on cross
o (b) Scope of cross-examination – Cross-examination should be limited to
the subject matter of the direct examination and matters affecting the
credibility of the witness. The court may, in the exercise of discretion,
permit inquiry into additional matters as if on direct examination
 Cross-examination should be limited to:
 (1) The subject matter of the direct examination and
 (2) Matters affecting the credibility of the W
 Majority rule (American rule, restrictive rule) – The scope of the direct (what
came out on direct) defines the scope of cross as to subject matter
o This is a matter of discretion for the court – the cross examiner can always
go into any matter which tends to “elucidate, modify, explain, contradict,
or rebut testimony given in chief, given by the witness”
 Near unanimous that any inference from the direct may also be
explored on cross
 Sometimes a basic premise must be shown to demonstrate this is a
reasonable inference to draw
o Pervasive aspect of scope issues is the discretion the court has
 Trial judge is in a position to assess things, Appellate court is
removed from time and place, this is NOT fertile appellate
 Criminal case is different because of the Con
 Davis v. Alaska – Full searching cross examination is the right the D has
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o They can go into almost anything if it is reasonable under the
circumstances
 Wide-open rule – English rule – Any subject on cross that is relevant in this case
o Under FRE the court can move the trial along, likely to be more efficient
o With this there are risks of time, that the jury may be distracted
o Basically a relevancy test
 EX: D is charged with stealing a car from P’s lot, P claims misunderstanding
o On cross they ask about a conversation between the D and the P – object
that it wasn’t in the scope of direct
 D will try to keep it in, argue it’s to rebut a valid inference
 Should be able to go into the facts and circumstances that
relate to whether D committed it
o Two distinct characterizations of the direct
 Proponent wants to shrink and limit the direct – the more it is
limited, the less that the opponent may cross examine on
 Defendant wants to expand, maximize
o If the case in chief is about it being an accident, can they bring in a prior
car theft (404(b) Prior Acts – to rebut that it was an accident)
 Judge has the discretion to allow matters on cross outside the scope of direct:
o D attorney can then go into X,Y,Z as if on direct
 Even though this is as if on direct, most courts are going to allow
leading since the W is still hostile
 Danger is greatest with leading Qs when the W is friendly to the
examiner
 Leading questions are permitted on cross
o BUT if they bring it up here, they can’t bring it up under 611(c) as an
adverse W again (No two bites at the apple)
 Might lose your ability to bring W as an adverse W
B. TESTIMONIAL CAPACITY OF WITNESS IMPEACHMENT (607-610, 613)
 Impeachment – inquiring into matters which affect the credibility of the W
o Nothing to do with the subject matter of direct
 Matters Affecting Credibility – Four Issues
 1. When may the proponent accredit his own W?
o R. 608(a)(2) – Proponent may accredit his W only after the credibility has
been attacked
 May be done on cross or extrinsic proof of bad character
 On direct, if it’s a hostile W
o Accomplish this on re-direct – after impeached, ask W to explain what
they meant on re-direct
 Or through rule of completeness, extrinsic proof of good character,
or prior consistent statements
 2. When may the proponent discredit his own W?
o R. 607 Who May Impeach – The credibility of a witness may be attacked
by any party, including the party calling the witness
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Can be done at any time, so long as there was a reasonable
expectation there would have been otherwise valuable testimony
heard (don’t call them just to impeach)
o R. 106 Completeness – Can have W read the remainder of the document
used on cross or re-direct to impeach your W
o CL – limited by “voucher rule” that you called him, you’re stuck with him
 You vouch for his credibility and may not discredit your own W,
unless you can show the answer of the W surprised you and was
harmful, prejudicial
o R. 607 – Any party may impeach a W
 Webster – 607 should be read to include a good faith test and
rejected the CL rule of surprise and prejudice
 Prosecution calls W, who gives favorable testimony to D,
so P introduces prior inconsistent statements to show he
changed his story
 P impeached the W through those prior inconsistent
statements
 D said it was a ploy – R. 607 is abused when a party knows
a W is going to give harmful evidence and then offers a
prior inconsistent statement to get in substantive evidence
otherwise inadmissible
 Court – P was acting in good faith, it was ok
3. What are the permissible modes of discrediting opponent’s W?
o Test W’s Testimonial capacity:
 1. Sincerity – disrespect for he justice system (almost never
happens)
 2. Perception – ability to perceive at the time of the incident by the
senses (doesn’t impeach, but undermines testimony) (NC)
 3. Memory – Capacity of the W to recall that which happened at
the time of the incident (NC)
 4. Communication – W’s capacity to respond to Qs with answers
(NC)
 Ex; scripted testimony, using phrases that aren’t theirs
o May always inquire into these for impeachment:
 5. Bias, prejudice, motive, corruption, interest (NC)
 6. Prior convictions 609 (NC)
 7. Prior bad acts 608 (C)
 8. Prior inconsistent statements 613 (C/NC)
o Prior inconsistent statement 801(d)(1)(b) – consistent with direct
testimony and used to rebut a claim of fabrication or motive
o EX: Avon lady sees robbery suspect from across the street
 Qs on what she sold that day are permissible – always allowed to
probe memory
 When Avon lady denies an impeaching question or testimonial
capacity, whether D’s attorney can question a neighbor to
contradict Avon lady depends on whether the matter is collateral
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4. How may the proponent accredit W after W’s credibility has been attacked on
cross-examination?
o FRE 106 (Rule of completeness), 801(d)(1)(b); 608(a)
o May call a good reputation W, putting in EE of good character
 Reputation or opinion
What constitutes an attack:
o Extrinsic evidence of bad character;
 608(a) Opinion/Reputation E of Character - The credibility of a
witness may be attacked or supported by evidence in the form of
opinion or reputation
o Modes of impeachment;
 1. Bias, prejudice, motive, corruption, interest
 2. Prior bad acts 608(b)(1)
 3. Prior convictions 609
 4. Prior inconsistent statements 613 (sometimes not an attack)
Not an attack:
o 1. Bias – Irrational predisposition
 May discredit the W, but it’s not an attack
o 2. Prejudice – Suggesting membership in a hate group that he has an
irrational predisposition
 Hear racial bias when they mean prejudice
o 3. Motive (generally not an attack)
 Substantive, but also to impeach a W
 Distinguish between 404(b) and 608 use of motive
o 4. Interest
 W stands to gain in some way as part of the suit
Five Main Modes of Attack Upon Witness Credibility:
o 1. Self-Contradiction
 Self Contradiction vs. Specific Contradiction
 Self: the making of a statement may be brought out by a
2nd witness w/out prior inquiry during cross examination
of the witness who made it
 Specific: mere production of other evidence as to material
facts conflicting with the testimony of the assailed witness.
o 2. An attack showing the witness is Biased
o 3. Attack on W’s character
o 4. Attack W’s capacity to observe, remember, or recount matters testified
about
o 5. Specific contradiction – proof by other witnesses that material facts are
otherwise than as testified by W
To Ways to Impeach:
o 1. Intrinsic Evidence: when the facts discrediting the W or W’s testimony
are elicited from W himself, or upon cross exam.
 Good faith basis for inquiry is required.
o 2. Extrinsic Evidence: wait for own case on rebuttal, and prove by a 2nd
witness or documentary evidence the facts that discredit W’s testimony.
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Impeachment by contradicting W-1 Testimony with Extrinsic Evidence
o Extrinsic Evidence – Proof in any style other than statements by the W
being questioned, additional evidence outside just asking the W questions
o Collateral vs. Non-Collateral Issues
 Non-Collateral – It’s important and extrinsic evidence is
admissible to contradict on the cross
 A party may not introduce extrinsic proof that particular
details of a W’s testimony are false unless those details
involve a topic that could be subject to proof, even if the W
had not referred to them
 Collateral – If the topic has no independent significance
EX: Asking the Avon lady question about her memory of that day is ok
o Memory is non-collateral, so it’s important, and extrinsic evidence is
allowed to contradict the cross
o OR – D’s attorney, later in D’s direct, can also call another W as extrinsic
evidence to contradict the cross on the Avon lady
Must lay foundation with preliminary Q to W before you can use EE to impeach
o 1. If W admits, it’s done, he been impeached
o 2. If W Denies, THEN go to whether it’s collateral or non-collateral
o 3: If non-collateral, then call EE
2 Scenarios
o 1. On cross – put to the W the Qs to impeach and undermine the evidence
o 2. On direct – call another W as long as the matter is non-collateral
 W must deny an impeaching Q before you can call second W for
contradicting him with extrinsic evidence
EX: W gives testimony that the D isn’t guilty, but on cross it’s shown that he’s
being paid for his time testifying
o If he is questioned on this and denies it, you can use extrinsic evidence
o CORRUPTION – involves money, raises an inference that he’s giving
testimony in exchange for money
 It’s a non-collateral issue
o If he admits it, you CANNOT bring another W
o Evasion of answer is tantamount to denial for purposes of EE
o Other party might object to cross on these issue, but you can always
impeach a W on corruption
They are outside the scope of direct, but impeachment has a separate purpose,
having nothing to do with the direct
o Say, it goes to impeachment, not subject matter
o It’s allowed in because it goes to credibility of W (611(b) Scope of Cross)
If you never ask about an issue you CANNOT bring another W for extrinsic
evidence – a preliminary Q must be asked
o Reasons – Judicial economy, Con right of full cross
o Must lay a foundation first
o Before a W can be impeached by calling other Ws to prove
acts/declarations showing partiality, the W under attack must first be
asked about these facts on cross
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o Can argue fairness to allow an impeaching W without laying a foundation
 Con right to due process, doubts resolved in favor of the accused
EX: Seek to impeach the W for being an (a) an alcoholic and (b) drunk
o Specific instances of conduct are permissible to impeach if they are
probative to truthfulness or untruthfulness
o (a) Alcoholic – NO, it’s a character inference, not probative of truthfulness
o (b) Drunk on day he witnessed – YES, goes to testimonial capacity,
perception and mental state at the time
o If he denies an impeaching question regarding drug use (prior bad acts),
extrinsic evidence is NOT admissible
 Prior bad acts are collateral
EX: D claims entrapment for selling police officer drugs in a pharmacy
o With the defense of entrapment, he must take the stand
o 608(b)(1) – Specific instances of conduct concerning the W’s character for
truthfulness
 His prior bad acts – plea deal on conspiracy to distribute and a
conviction on tax evasion
 These are admissible if probative of truthfulness, most courts will
allow it in
o 608(b) safeguard – Proof of misconduct for which there has been no
conviction are limited to intrinsic impeachment
 If W denies the alleged misconduct, the cross-examiner may not
later call other Ws to prove the discrediting acts
 He must “take his answer”
R. 609 Impeachment by Evidence of Conviction of Crime:
o (a) General Rule – For the purposes of ATTACKING the character for
truthfulness of a witness.
 (1) evidence that a W other than accused has been convicted of a
crime shall be admitted, subject to 403, if the crime was
punishable by death or imprisonment in excess of one year under
the law under which the W was convicted, and evidence that an
accused has been convicted of such a crime shall be admitted if the
court determines that the probative value of admitting this
evidence outweighs its prejudicial effect to the accused; and
 (2) evidence that any W has been convicted of a crime shall be
admitted regardless of the punishment, if it readily can be
determined that establishing the elements of the crime required
proof or admission of an act of dishonesty or false statement by the
W
o (b) Time Limit – Not admissible if more than 10 years has passed
o (c) Effect of pardon, annulment, or certificate of rehabilitation –
Conviction is not admissible if they’ve had one of these and not been
charged with a serious crime in one year, or if found innocent
o (d) Juvenile Adjudications – These are not generally admissible, unless in
a criminal case used to attack an adult who is not the accused
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o (e) Pendency of Appeal – Does not render evidence of a conviction
inadmissible
R. 609 – Prior convictions used for the purpose of attacking character for
truthfulness of a W
o Remember 404(b) Other Crimes, Wrongs, Acts are used for substantive
purposes (Ex; prior robbery to show knowledge of a crime under similar
circumstances relating to the crime at trial)
o 609 prior convictions seek to establish:
 1. The readiness to do evil, which shows a readiness of W to lie,
falsify testimony
 2. Willingness to disobey the law, which shows W will disregard
the oath to testify truthfully
o 609(a) burden is different for accused and other Ws
 1. For accused, burden is on the impeacher
 2. For everyone else, burden is on the party calling the W – must
prove by a preponderance of the evidence that the probative value
of admitting the evidence outweighs its prejudicial effect on the D
 Starts with assumption that it has some probative value
(relevance) but then looks to see if outweighed by prejudice
 If you are impeaching, you must overcome 403 objection
by the party who called the W
 The party who is impeaching has the burden (shift from
normal)
 Shifts the burden to the proponent because of the risk of
prejudice
o 609(a)(2) – Evidence that at W has been convicted of a crime shall be
admitted regardless of punishment if it can be determined the crime was
an act of dishonesty or untruthfulness
 So look at the crime, perjury, dishonesty, false statements
 Allow in any crime with elements of truthfulness
 Crimes in court
 Mere Fact Method – Some simply allow “felony last year”
 Some allow name of the crime
 Luce Issue – D must take the stand at trial in order to appeal prior
conviction impeachment admissibility
o Ohler – D who brings up conviction on direct waives ability to challenge
it on appeal
 But it’s not as if D is voluntarily doing this, dissenters say you
don’t waive it since it’s a strategic move
o Similarity of impeachment crime with alleged crime
 Risk that the jury will look at impeachment crime and reason by
that crime, he’s guilty of this crime
 Need to get limiting instruction – NOT for substantive E
 The evidence may be inadmissible under 404(b) Other Crimes,
Wrongs, Acts, but that doesn’t affect the court’s discretion in
allowing it for impeaching the D if he takes the stand
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o Issue of stale conviction
 Stale convictions are inadmissible (10 years or older)
 Start the clock running on date of release from prison or
date of conviction, whichever is later
 Unless, in the interest of justice, it’s value substantially outweighs
the prejudice – judge has discretion
R. 608(a) Opinion and Reputation Evidence of Character – The credibility of a
witness may be attacked or supported by evidence in the form of opinion or
reputation, but subject to these limitations: (1) the evidence may refer only to
character for truthfulness or untruthfulness, and (2) evidence of truthful character
is admissible only after the character of the witness for truthfulness has been
attacked by opinion or reputation evidence or otherwise
o When anyone takes the stand, they open the door to question their
truthfulness through extrinsic proof of bad character, or otherwise
 If the D takes the stand, a W can then give opinion testimony about
the D for truthfulness
o Assuming that testimony is admitted, D cannot introduce evidence to then
show he is a moral person
 On rebuttal you’re limited to the character trait that was broken
down, so here it MUST be for truthfulness
 TRUTHFULNESS IS THE TRAIT PROVIDED FOR IN 608
o Time requirement – The foundation for 608(a) character proof is the time
of the trial
o When cross-examining the character W, you may introduce evidence of
D’s past convictions
 608(b)(2) Specific instances concerning character for truthfulness
of a witness (here the D) may be inquired into on cross concerning
the character for truthfulness
 It goes to the basis of his opinion
 Even if prior convictions were excluded on cross exam of D under
608(a), it might still be in on cross of the character W under 608(b)
 The scope of cross of a character witness is almost unlimited if it
goes to the trait that the character witness testified about
 HERE – the prior convictions are very probative of truthfulness
General Mutual Insurance Co. – Prior inconsistent impeachment, seek to show
that he’s not credible as a W, that he blows hot and cold
o But extrinsic evidence would not likely be admissible here to show the W
is lying about impeaching questions since they were collateral
R. 613 Prior Statements of Ws
o (a) Examining W Concerning Prior Statement - In examining a witness
concerning a prior statement made by the witness, whether written or not,
the statement need not be shown nor its contents disclosed to the witness
at that time, but on request the same shall be shown or disclosed to
opposing counsel
o (b) Extrinsic Evidence of Prior Inconsistent Statements of W - Extrinsic
evidence of a prior inconsistent statement by a witness is not admissible
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unless the witness is afforded an opportunity to explain or deny the same
and the opposite party is afforded an opportunity to interrogate the
witness thereon, or the interests of justice otherwise require. This
provision does not apply to admissions of a party-opponent as defined in
rule 801(d)(2)
R. 613(b) requires that to admit EE of a prior inconsistent statement, the W must
first be given a chance to explain or deny the statement
o W must be confronted with the statement on cross to give the opportunity
o If W admits it, W has been impeached and no EE allowed
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C. RIGHT OF CONFRONTATION
 Doubts should be resolved in favor of the accused
 Alford v. United States – D is convicted of mail fraud, at trial he wants to ask P’s
W where he lived, judge grants objection that it was inappropriate
o On appeal SC says TC was incorrect – It’s proper cross-examination, and
judicial history shows that witnesses should/may always be asked about
who they are, what they do, etc.
o Additional basis – W was in federal custody, could show the W was
irrationally predisposed to testify the way the state wants
 Davis v. Alaska – W who testified against D was a juvenile on probation, the D
wants to impeach the W with this evidence on cross to show it was probative of
bias (either to agree with the State or out of fear of being a suspect)
o SC – Con right under Confrontation Clause to cross examine those giving
evidence against him under 6th A
 Bias is a mode of impeachment you can ALWAYS go into
 Con trumps important state policies, almost always wins
 D was entitled to question him on juvenile record
o Use the Con as a filter in criminal cases, not civil
VII. LAY OPINION
A. FIRST HAND KNOWLEDGE (FRE 602, 701, 704)
 R. 602 Lack of Personal Knowledge – A witness may not testify to a matter unless
evidence is introduced sufficient to support a finding [104b!!] that the witness has
personal knowledge of the matter. Evidence to prove personal knowledge may,
but need not, consist of the W’s own testimony. The rule is subject to provisions of
703, relating to opinion testimony by expert Ws
o Nothing more than a specialized application of 104(b), the doctrine of
conditional relevancy
o Modern Approach – Described more as a rule of preference
 Burden is satisfied as long as he W thinks he knows
o The rest is left to cross and an ultimate determination by the fact finder
about how much weight should be given to the testimony
o It may be in whole or in part established by extrinsic E
 Deaf/mute testifies in conjunction with an expert who testifies that
deaf/mutes compensate in other senses
 Personal knowledge WITH an expert
o Lay opinion is NOT based on scientific or other special knowledge
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BUT there’s a grey area – “skilled witness”
 Not in FRE, but still recognized in many states
 May not be an expert, but has knowledge which makes his
opinion not superfluous
 Scientific, technical, or other specialized knowledge
 Treated as an expert
R. 701 Opinion Testimony by Lay W – If the witness is not testifying as an expert,
the witness' testimony in the form of opinions or inferences is limited to those
opinions or inferences which are (a) rationally based on the perception of the
witness, and (b) helpful to a clear understanding of the witness' testimony or the
determination of a fact in issue, and (c) not based on scientific, technical, or other
specialized knowledge within the scope of Rule 702
o Opinion must be rationally based on personal knowledge and be helpful
o Perception – to become aware directly through any of the senses
 Important to ask if this is the kind of perception one normally
forms under the circumstances
 Ex; does one normally see or hear a car with a cut out muffler?
 Look to everyday affairs or life to make these determinations
 Court allows these, cross is to test the W
o How is rational basis established? – Look to R. 602
R. 704 Opinion on Ultimate Issue – (a) except as provided in (b), testimony in the
form of an opinion or inference otherwise admissible is not objectionable because
it embraces an ultimate issue to be decided by the trier of fact
o (b) No expert W testifying w/ respect to the mental state or condition of a
defendant in a criminal case may state an opinion or inference as to
whether the defendant did or did not have the mental state or condition
constituting an element of the crime charged or of a defense thereto. Such
ultimate issues are matters for the trier of fact alone
At CL opinion on ultimate issue was reserved to jury
o At CL it was a rule of exclusion, opinion is presumed inadmissible
 Lay W was generally limited to testimony of facts
o Theory of judicial economy – Jury and judge are capable of coming to
conclusions, W’s is superfluous
o Collective Facts Rule – “permits lay W to resort to a conclusion or opinion
to describe observed phenomena where there exists no feasible alternative
by which to communicate the observation to the trier of the fact.”
 Ex; the speed of a moving vehicle, smell of gas at a fire
 Court developed these short hand exceptions
EX: W testified that he saw the robbery, the lights weren’t bright, that he thinks
it’s the D, common since Ws get nervous
o Objection overruled – opinion is rationally based on a perception of the W
o Conditional relevancy has a very low threshold – evidence to support a
finding he had personal knowledge
o This type of opinion and its admissibility apply 104(b) relevance standard
and 602 personal knowledge requirement under 701 rationally based
perception
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o Lights not being bright goes to WEIGHT not ADMISSIBILITY
 EX: Car accident
o W CANNOT testify the noise of the collision led her to believe that one
car was moving faster than 20 mph
 Noise as a rational basis for speed won’t work
o W CAN testify one car sounded like it had a muffler cut out
 EX: A police officer CAN testify that the D (charged with killing his son)
appeared to fake cry when told of his death
o It’s based on personal knowledge, rationally based perception
 EX: Woman was grabbed in bed, held down by man who “sounded black”
o Objection – not rationally only based only on her perception (sound)
o Court upheld an opinion on sounding black was admissible
VII. Expert Testimony
A. EXPERTS – TRADITIONAL RULES
 R. 702 Testimony by Experts – If scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the evidence or to determine a
fact in issue, a W qualified as an expert by knowledge, skill, experience, training,
or education, may testify thereto in the form of an opinion or otherwise, if (1) the
testimony is based upon sufficient facts or data, (2) the testimony is the product of
reliable principles and methods, and (3) the W has applied the principles reliably
to the facts of the case.
o No personal knowledge requirement for experts
 Not to say they won’t, one of the bases under 703 is personal
knowledge
 Lay W must have personal knowledge (602)
o Burden is on the PROPONENT to establish the expert’s qualifications
by a preponderance of the evidence
 This has been expanded to include the “skilled witness”
 No set rule on the quantum of knowledge or skill
 Expert W Testimony
 1. Qualifications 104(a), 702
o Judge must determine by a preponderance of the evidence that the expert
is qualified (104(a) preliminary Qs on qualifications of W)
 This is solely a Q for the judge
o Qualification of an expert W
 Stipulation is an agreement on a particular fact
 Not required to accept offered stipulation to the qualification of W
 Qualifications of W are vital to the credibility of the W
 Stipulation goes to qualification, which goes to credibility
of the W, which is the province of the jury
o Certification of the expert W
 If you are in a certification jurisdiction, after the qualifications
have been offered, a proponent tenders the W as an expert in a
particular field or subject and asks that the W be formally certified
 Subject to the Judge’s discretion, subject to local rule
 Problem – it’s viewed by many courts as improper
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Seal of approval is a subtle/not so subtle seal of approval
on credibility, which is the jury’s domain
 Court is barred from making any opinion on credibility
 Benefit – there must be an opportunity for the opponent to
challenge
 May ask to voir dire the expert on qualifications with the
mission to narrow the ambit of the W’s expertise
 Judicial economy – we don’t want to spend 2 hours on W
qualifications
o Examining qualifications
 Mullholland v. DEC International Corp – The judge has a lot of
discretion in this area, court found it was an abuse of discretion to
not allow an expert on mastitis since he lacked edu. qualifications
 The trend in examining qualification issues is for the appellate
courts to become more specialized, look for more specific
credentials
2. Subject matter/expertise 702
o Subject matter
 Central piece – Must show the judge this is going to assist the fact
finder, must be helpful
 Must be beyond the ken – beyond the understanding of the jury
 If it’s within the ken of the jury, then it’s superfluous
o How is expertise acquired
 People v. Whitfield – D wanted to call expert W, judge didn’t
allow his, but allowed P’s
 Denial of due process to not allow him to raise every offer
of his innocence – 6th A claim
 Court applied Chapman v. California – burden on the
appellee to show that any error is harmless beyond a
reasonable doubt
 Court said expert was qualified under the orindary
interpretation of R. 702
 But the bottom line is that there is no precise standard
 Don’t necessarily have to have formalized education
3. What the expert based his opinions on 702, 705
o R. 705 Disclosure of Facts or Data Underlying Expert Opinion – The
expert may testify in terms of opinion or inference and give reasons
therefore without first testifying to the underlying facts or data, unless the
court requires otherwise. The expert may in any event be required to
disclose the underlying facts or data on cross
4. Opinion or otherwise 702, 704
o R. 704 Opinion on Ultimate Issue (above)
o Whether an opinion is allowed is determined by discretion of the judge
and reviewable by abuse standard
o Discretionary, up to the judge to determine if helpful
o Big change from CL where there were no opinions by Ws
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5. Basis for opinion 703
o R. 703 Bases of Opinion Testimony by Experts – The facts or data in the
particular case [not opinion] upon which an expert bases an opinion or
inference may be those perceived by or made known to the expert at or
before the hearing. If of a type reasonably relied upon by experts in the
particular field in forming opinions or inferences upon the subject, the
facts or data need not be admissible in evidence in order for the opinion
or inference to be admitted. Facts or data that are otherwise
inadmissible shall not be disclosed to the jury by the proponent of opinion
or inference unless the court determines that the probative value in
assisting the jury to evaluative the expert’s opinion substantially
outweighs their prejudicial effect.
 “Facts or data” – not opinion
o Before hearing
 1. Firsthand observation
 Expert can observe, the actual doctor, inspector
 2. Documents
 Report, test results, etc.
 3. Learned treatise
 Or it can be in a learned treatise, but this isn’t very often
 Note – Expert W may also be impeached with treatise when
you connect the treatise to the expert in that they relied on
it in their opinion OR the W recognizes it as an
authoritative source
o Can use EE to prove it’s an authoritative sourse
o At the Hearing
 4. E attends hearing, listens to testimony
 But experts are expensive so this can limit this
 5. Hypothetical question
o “the facts or data need not be admissible in evidence in order for the
opinion or inference to be admitted” – BIG DEAL
 Allows experts to base testimony on inadmissible evidence
 Like doctors making decisions based on inferences of other people
 Means the test is going to be reasonable reliance, not underlying
trustworthiness
 Some states don’t allow this – check your jurisdiction
 Concern that 703 would create a giant hearsay exception
 Changed it to say if the W uses inadmissible evidence for
their opinion, these facts aren’t disclosed to the jury, unless
the court determines their probative value to evaluate the
opinion outweighs their prejudicial effect
 REALLOCATION OF THE BURDEN
 R. 706 Court Appointed Experts – The court may enter an order to show cause
why expert witnesses should not be appointed, it may appoint experts agreed on
by the parties, it may appoint its own experts
B. “SCIENTIFIC EVIDENCE” AND FRE 702
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Frye Rule (Frye v. United States) – “General acceptance” standard for new
unfamiliar expert testimony based on technology (now soft science too)
o It must be sufficiently established to have gained general acceptance in the
particular field it belongs to
o Court will often treat experts without a hearing in Frye jurisdictions,
opponent files a motion for a Frye hearing
 The judge decides if it’s new and novel, which needs a hearing
 Outcome determinative – if you lose Frye hearing, the judge will
usually say it’s not reliable
o There are about 25 states still using Frye, they have rejected Daubert
 Then R. 702 – doesn’t necessarily replace or abolish Frye
o “liability science” emerged – highly credentialed people who would
provide either scientific or scientific sounding explanations for why things
occurred and 702 is created
o Morphing into soft, non-traditional psychological science
 Daubert Rule (Daubert v. Merrell Dow Pharmaceuticals) – Put the judicial stamp
on R. 702, finds that Frye rule is dead, that 702 doesn’t include it
o It adds reliability analysis for “scientific knowledge”
o Listed non-exclusive list for guidelines for relevancy:
 1. Testing
 2. Peer review and publication
 3. Known or potential rate of error
 4. Standards controlling technique’s operation
 5. General acceptance
 Law as it stands today (General Electric Co. v. Joiner) – Nothing in Daubert or
the FRE requires a court to admit opinion evidence that is connected to existing
data only by the ipse dixit of the expert
o A court may conclude that there is simply too great an analytics gap
between the data and the opinion proffered
 What type of evidence this applies to (Kumho Tire Co. v. Carmichael) – SC
concludes there is no distinction, courts CAN apply Daubert to “technical” and
“other specialized knowledge” as well as scientific
o Courts have leeway in determining whether particular expert testimony is
reliable, consider Daubert factors where reasonable
 Today’s FRE 702 includes Daubert and Kumho
IV. HEARSAY RULE
A. DEFINITIONS (FRE 801, 802)
 R. 802 Hearsay Rule – Hearsay is not admissible except as provided by these
rules or by other rules prescribed by the S. Ct. pursuant to statutory authority or
by Act of Congress
 CL – E which couldn’t be cross-examined shouldn’t be admitted
o We believe cross is the best way to determine the truth
 Evidence which depends for its probative value upon the credibility of someone
who cannot be cross-examined is not admissible
o Call this hearsay
o Preoccupation was lack of cross, but also concern of no oath and inability
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to view the W
HEARSAY
o Out of court statement (OCS) – FRE 801(c)
o Offered to prove the tuth of the matter asserted (TMA) – Relevancy issue
o OCS + TMA = Hearsay
R. 801 Definitions
o (a) Statement – A "statement" is (1) an oral or written assertion or (2)
nonverbal conduct of a person, if it is intended by the person as an
assertion
o (b) Declarant - A "declarant" is a person who makes a statement
o (c) Hearsay – "Hearsay" is a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in evidence to
prove the truth of the matter asserted
o (d) Statements which are not Hearsay …
Statement
o A statement is anything other than what the W says in this courtroom right
now
o May be more helpful to think of it as an assertion
o Core of hearsay is words spoken by the declarant
 Or it can be a written out of court statement
 Or assertive conduct – may silently point to the man
o If it’s an OCS, it’s not necessarily hearsay, it’s purpose must still be to
prove the matter asserted
 Relevancy must rest upon the statement being offered for TMA in
order for it to be hearsay
o Non-assertive conduct – At CL conduct which was not intended as an
assertion, but gave a clue as to belief and was offered to prove the truth of
the belief was within hearsay
 FRE exempts it from the hearsay rule at 801
Photographs
o Generally regarded as passive, rather than assertive (important general R)
o They are thus not statements under 801(a) and not hearsay
o Most are admissible under the pictorial testimony theory (Personal
knowledge with photo as a fair and accurate representation of what the W
has just testified to)
 But hearsay is triggered where the photo depicts assertive conduct
and isn’t different from a W testifying about assertive conduct
 Ex; day in the life film (object on hearsay)
Example 1:
o W says under oath that he spoke with his mother on Sunday and she said it
was snowing in Detroit
 Only hearsay if trying to prove the truth of the matter asserted
 If used to show mother was alive, not that it was snowing, it’s ok
 If excluded then, it will be due to relevancy
 Or can be used to show the phones were working on Sunday
o Counsel produces a notarized letter from the meteorologist at the local tv
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station, which states it was snowing in Detroit
 OCS offered to prove the TMA – yes, hearsay
o Transcript of a hearing in another court where W said he was in Detroit on
Sunday and it was snowing
 OCS offered to prove the TMA – yes, hearsay
o W takes stand and says it wasn’t snowing, but on cross they ask him about
another time he said it was
 OCS but not offered to prove TMA, it’s to show he’s not a credible
W
 It’s impeachment, not hearsay
o W testifies that on Sunday he said “it’s snowing in Detroit”
 OCS but look to 801(d) to see if hearsay
Example
o Officer says his radar gun was in working order and it said the D was
driving at 75 mph and pulls out the reading
 Note – Courts have concluded that certain scientific
theories/techniques are established without testimony from experts
(don’t have to prove how the radar gun works, just that it was in
working order)
 The reading is an OCS to prove the TMA
 Technically hearsay, but not under Art. 8
 We’re not concerned about cross examining machines or
animals
o Says the dispatcher told him about a robbery, so he went to the bank
 Used to prove why he went to the bank – not hearsay
Example
o Want to prove the time of an accident at 9 am – W testifies he heard the
bells ring as the accident took place and the priest always rings them at 9
 Priest is the declarant – have to show the conduct (bell ringing) is
substitute for words
 He’s intending to make an assertion – it’s hearsay
Example
o Want to prove pain and suffering in personal injury case – P calls
ambulance driver who testifies the P was screaming when he was put in
the ambulance
 P is the declarant
 It’s involuntary conduct and he’s not intending to make an
assertion
 Not hearsay, so ask if it’s relevant
o If P says “go easy on my right leg”
 This is an assertion – trying to assert the location of pain
 Hearsay
Example
o Husband wants to prove wife is insane – He offers evidence that wife has
refused to leave their home for two years
 Declarant is the wife
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Conduct that is a substitute for words – she is NOT intending to
make an assertion to prove the truth of the matter that she’s crazy

Example
o Proving decedent knew he was dying when he made a statement – P
testifies he heard doc tell him “you will die in a few minutes”
 Declarant is the doc
 Not being offered to prove the truth of the matter asserted (that he
actually will die in a few minutes)
 Not hearsay
 Example
o Whether or not W dislikes the D (we know this as prejudice under
impeachment) – If impeaching W-1, W-2 takes the stand and testifies that
W-1 once told me “D is a cheat and a liar”
 Declarant is W-1
 Not hearsay – not being used to prove the truth of the matter
asserted (that D is a cheat/liar)
 Example
o Whether X, a man, and D, a woman, were engaged to be married – W says
he heard D say to X “I promise to marry you in June”
o Contract to marry or other acts of independent legal significance on
ground of policy are exempted from the hearsay rule
 No FRE on this, but in advisory committee notes to 801, you see
statements which have independent legal significance
 Example
o If X assaults Y, who sexually assaulted his wife, want to prove
provocation – W testifies that wife said “Y ravished me”
 Declarant is the wife
 Not hearsay – not being used to prove the truth of the matter
 Example
o If trying to prove that Y was conscious after the attack – W testifies that Y
said “X shot me, as he often threatened to do”
 Not hearsay – not being used to prove the truth of the matter
o Now identifying shooter with same statement
 Yes hearsay – offered to prove identity
 Example
o Prove X’s honesty – W testifies that X’s ER promoted him
 Declarant is X’s boss
 Not hearsay – Conduct is the promotion, have to prove the
declarant intended to make an assertion by giving X the promotion
 Better answer is he didn’t intend to make an assertion
HEARSAY RULE – EXCLUSIONS
B. PRIOR STATEMENTS OF WITNESSES AND ADMISSIONS
 R. 801(d) Statements Which are NOT Hearsay – A statement is not hearsay if
o (1) Prior statement by witness – The declarant testifies at the trial or
hearing and is subject to cross-examination concerning the statement, and
the statement is (A) inconsistent with the declarant's testimony, and was
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given under oath subject to the penalty of perjury at a trial, hearing, or
other proceeding, or in a deposition, or (B) consistent with the declarant's
testimony and is offered to rebut an express or implied charge against the
declarant of recent fabrication or improper influence or motive, or (C)
one of identification of a person made after perceiving the person;
U.S. v. Decisto – Truck hijacking, at trial truck driver pointed out the D and noted
that the person who robbed him had no distinguishing features
o Defense showed all the tattoos the D had
o Re-direct by prosecution, showed prior identification where the driver
correctly picked him out of a line-up and where he’d IDed him at a
previous trial
 Judge said prior identification could only be considered for
credibility of driver, not substantive
o On appeal court said limiting instruction to jury was not needed
o Forerunner to 801(d)(1)
 His prior statements were made under oath, we ought to let these
statements in for substance as well as credibility
 NOT hearsay – may be used for dual purposes
Prior Consistent Statements to accredit the W – 801(d)(1)(B)
o Tome v. United States - Adopts “pre-motive rule” that prior consistent
statements must take place PRIOR to the motive for fabrication
 D claims child is lying about molestation to give the mom primary
custody, so P wants to give evidence that the child claimed
molestation prior to trial
 Court – these consistent statements can only be entered into
evidence if it can be proven that they were said BEFORE the
alleged motive (to change custody) arose
801(d)(2) Admission by party-opponent – A statement is NOT hearsay if the
statement is offered against a party and is
o (A) the party's own statement, in either an individual or a representative
capacity or
 Classic admission, can always put into evidence what the other
side said, assuming relevancy
o (B) a statement of which the party has manifested an adoption or belief in
its truth, or
 Adoptive admission, can be in any appropriate manner, even
silence
o (C) a statement by a person authorized by the party to make a statement
concerning the subject, or
 Need not be an intent to disclose
 Books, records are admissible
 KEY – were they authorized to speak
o (D) a statement by the party's agent or servant concerning a matter within
the scope of the agency or employment, made during the existence of the
relationship, or
 Wigmore View (below)
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o (E) a statement by a coconspirator of a party during the course and in
furtherance of the conspiracy.
o The contents of the statement shall be considered but are not alone
sufficient to establish the declarant's authority under subdivision (C), the
agency or employment relationship and scope thereof under subdivision
(D), or the existence of the conspiracy and the participation therein of the
declarant and the party against whom the statement is offered under
subdivision (E)
 Court is concerned about bootstrapping – lifting something into
existence with an our of court statement that has not been crossexamined
 Contents of the statement SHALL be considered but is not alone
sufficient to establish declarant’s authority, etc.
 Ex; statement alone about conspiracy alone is not
sufficient, must be some other evidence
801(d)(2) – Admissions (NOT judicial admissions, stipulations)
o Admissions are limited to parties
o Four required elements:
 1. It is an 801(a) statement or act/conduct by the declarant
 2. Statement by a party
 Usually admissible, even in the form of an opinion
 3. Admission relates to prior acknowledgement of a fact that’s
before the trial
 No requirement that the party (party-opponent) had
personal knowledge of it
 4. Admission is inconsistent with the position that the party now
takes at trial
 May be entirely in the interest of the party when made, as
long as it’s inconsistent with position at trial
o Don’t confuse with the exception to the hearsay rule
804(b)(3), statement against interest
HYPO – Lawsuit brought by decedent estate against a Speedway
o Pace car swerves off, kills the decedent, under respondeat superior have to
show the pace car driver was negligent (driver unavailable at trial)
o W is the ambulance driver, wants to say the pace car driver said “I guess I
was going too fast”
 Out of court statement used to prove the truth of the matter
 But is it an admission under 801(d)(2)?
 Pace car driver is not a party, so it becomes complicated
 Vicarious admission of the principle?
o Law of agency – bound when a statement it within
the scope of his authority
o Driver’s authority limited to driving, not making
statements
o CL – unauthorized statement by driver not
admissible
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Wigmore View – If the statement was made at a time the agent was
employed and it involved what he was authorized to do, it’s ok
 Codified at 801(d)(2)(D)
EX: Dog bite injuries
o At trial D says he didn’t own the dog so can’t be liable
 W testifies D told him he never sold the dog and it was still his
 Not hearsay because it’s an admission
 (1) Statement (2) by a party (3) prior acknowledgement of a
fact (4) inconsistent with position taken now at trial
o Or if D argues that it’s a different dog that bit her
 W testifies D said “I know the dog bit you”
 Admissible admission
o Statement by a party of a prior acknowledgment of
a fact, inconsistent with position taken at trial
 Declarant doesn’t have to have first hand knowledge
 “I wasn’t there, but Arthur told me the dog bit you”
 Classic adoptive admission 801(d)(2)(b)
 “Arthur knew the dog was vicious”
 Admissible in the form of an opinion 801(d)(2)(A)
 W testifies that Arthur said “D hired me to take care of that dog
and here it bit you”
 CL – Arthur is not an agent of D
 FRE 801(d)(2) – YES, statements by putative agent
(prospective agent) may by themselves be used to prove
agency
o Statement by the declarant, together with some
other evidence
o Made during period of agency/dealt with duties
EX: P falls on the tile floor in lobby of bowling alley, sues the alley
o P wants to testify an EE asked the janitor why he didn’t mop
 Questions can be assertions within 801(a)
 Likely hearsay if offered to prove that EE meant to say there was
stuff on the ground
o P testifies the EE picked her up off the floor
 He was not intending to make an assertion by doing so
 At best, non-assertive conduct, not hearsay
EX: Able is a member of the conspiracy but has not been indicted
o Court must find that there’s a conspiracy
 Amendment to 801(d)(2) – Court will consider statements by
conspirators, but other evidence must be established
 Established here, assume there’s a conspiracy
o W testifies he had a conversation with Able about a car he stole and W
agreed to burn the cars
 Must be made during and in furtherance of the conspiracy
 Here they were made after the conspiracy, but government will try
to define conspiracy as loosely as possible to get it in
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o W says Able told him during the conspiracy they could get him out of jail
 Intended to get him out to work with them – in furtherance
 Objection overruled
o W says Able said “we’ve got this scheme, we’ll retire happy old, men”
 Statements which are puffing, deemed not to be in furtherance
 Where the line is drawn is in the discretion of the judge
 If party’s expert W gives information helpful to other side:
o Collins v. Wing Corporation – Ps brought a products liabilities action
against bus manufacturer after their child died on a bus in an accident
 D’s 702 expert gives deposition opinion that supported the Ps, but
the judge didn’t let them call him and D didn’t either
 Notion that the other side can always call a W to explain a
statement that is a putative admission
 Viewed as a rather creative use of R. 801
o Dong v. Amtrack – P had been shot in Amtrack’s Penn Station and alleged
that there was inadequate security in the station
 Amtrak’s liability expert said in deposition a bunch of things that
helped the Ps theory that more security would have prevented it
 801d2D used to get in information from other side’s expert
 And they cited Collins
EXCEPTIONS TO THE HEARSAY RULE
C. FORMER TESTIMONY
 Two Overarching Concerns to Exceptions:
o 1. Necessity – Important policy in the law
 We need this evidence
 Practical necessity – Some evidence too costly to prove otherwise
 Ex; how much Sears closed at on the date in question, just
looking to newspaper is ok
o 2. CGT – circumstantial guarantee of trustworthiness (trustworthiness)
 We’re looking for a substitute for the absent cross examination
 R. 804 Hearsay Exceptions – May be invoked only when the out of court
declarant is unavailable
o (a) Definition of unavailability (Must lay a foundation to show):
 (1) DC declares privilege (self-incrimination)
 (2) Refuses to testify
 (3) Testifies to lack of memory
 (4) Unable to be present (death/illness)
 (5) Unable to get the DC by reasonable means
o Declarant is not unavailable if the condition results from fraud
 804(b)(1) Former testimony – Testimony given as a witness at another hearing of
the same or a different proceeding, or in a deposition taken in compliance with
law in the course of the same or another proceeding, if the party against whom
the testimony is now offered, or, in a civil action or proceeding, a predecessor in
interest, had an opportunity and similar motive to develop the testimony by direct,
cross, or redirect examination
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o Examples of former testimony for non-hearsay purposes, impeachment by
prior inconsistent statement and to refresh memory
o Former testimony for hearsay purposes – Declarant in present trial was a
W in the first trial and is unavailable today
 Primary mission – assurances the evidence is trustworthy
 CL – parties must be the same in both trials
 FRE – Relaxes that, must be same identity or substantial identity or
parties and issues and similar motives between the two
proceedings
EXAMPLE – Lawyer tried for subornation of perjury from T-1
o EX: Parties and motives must be similar
 T-1: W testifies for D, then as a rebuttal W for the P, implicating
D’s lawyer for subornation of perjury
 T-2: P seeks to show foundation W is unavailable, wants to offer
his testimony from T-1
 P must present facts he can’t come, can’t just say he’s in a
mental institution (hearing and determination, likely)
 D may be entitled to face him (6th A) if he can get better
 804(b)(1) – testimony at another hearing is allowed if the party
against whom is now offered (lawyer) had an opportunity and
similar motive to develop
 Lawyer’s motive to cross examine in T-1 is a conflict of
interest
o To the extent he tries to save himself he
compromises his cross for his client
 The party against whom the evidence is offered is a
different person in T-2
o Should not treat the lawyer as if he were a party in
T-1
 Objection sustained – not admissible
o EX: Testimony from the preliminary hearing where W testified against the
D (the lawyer) and D had an opportunity to cross but does not
 Do not engage in a qualitative analysis of D’s attorney’s skills
 D may have had a similar motive and opportunity to cross, though
some courts say preliminary hearing doesn’t have the same motive
as at trail (lower burden of proof at hearing)
o EX: D wants to introduce transcript from sentencing hearing from T-1, it
was offered against the state in T-1
 Same party against whom it is offered in T-2
 But the state did not have the motive to cross examine him in T-1
 Objection sustained – it will not be allowed, must have cross
o EX: D wants to offer transcript of wife of the previous D in T-1
 But the wife is not unavailable, so the transcript is not allowed
EXAMPLE – Civil case on car accident
o T1 – Philip sues Dwight on theory of negligence
 Theresa testifies for Dwight
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o T2 – Paul (passenger) sues Dwight, wants Theresa’s testimony
 No problem of unavailability since Theresa has died
 The party against whom the evidence is now offered must have
had a similar motive or opportunity to examine Theresa
o Predecessor in interest for civil cases – someone who previously had that
opportunity or interests
 Yes, Philip is a predecessor in interest to Paul so that it’s not unfair
to bind Dwight to the cross in T-1 – certainly to the negligence
 But instructed that it might make a difference if in addition to
charges of negligence that Paul charged Dwight with other things
 Former testimony would be admissible only on negligence
and causation because those issues were crossed in T1
 Other issues not allowed in since there was no opportunity
to cross on them
 Predecessor in interests is only for civil cases
 EXAMPLE – Criminal case (ex; date rape), followed by civil case (victim of rape
has a child) – the D in T1 wants to establish parenting tim
o Where you have civil and criminal trial, court asks where the stakes are
higher, in first or second trial
 If the stakes are higher in the second trial, it’s NOT allowed in
 Motive to cross is much less in a civil case
 If the stakes are higher in the first case (criminal), the motive to
cross examine is at its zenith – doing a full cross
 It’s unlikely that it will be unfair to bind the party against
whom the evidence is offered
D. STATEMENTS UNDER BELIEF OF IMPENDING DEATH
 R. 804(b)(2) Statement under belief of impending death – In a prosecution for
homicide or in a civil action or proceeding, a statement made by a declarant
while believing that the declarant's death was imminent, concerning the cause or
circumstances of what the declarant believed to be impending death
 EX: Jack becomes doctor, makes a lot of money, ends up having an affair
o Jack is found in his office, dying declaration he says Diane shot me
 Why should the court admit the testimony of this police officer?
 Consider need and trustworthiness
 Commonwealth v. Brown – The awareness of imminent death is the guarantee of
trustworthiness of statements
 At CL – it had to be a criminal homicide case (distinction with the FRE)
o It was a statement that was oral or written regarding the circumstances of
the killing and had to have personal knowledge
o Had to die (not in FRE)
o Declarant had to believe death, abandon all hope
 Proving awareness of imminent death – 3 ways to prove it
o 1. Court considers the condition of the victim
 Court asks would a reasonable person under these circumstances
be aware of imminent death
o 2. Where a W speaks to the declarant
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If the witness tells the victim he’s about to die, he’s reporting his
out of court statement, but it’s offered to explain the victim was
aware of death, not to prove TMA
o 3. Victim speaks and officer reports it
 Offered to show belief in death like “call me a priest/mother”
 Dying declaration is X shot me
 80(4)(b)(2) permits dying declaration to be in the form of an opinion
o Declarant may have an opinion, believe he’s about to die
 EX: Two people killed by husband
o Wife is dying, but says “I’ll get him”
 NOT OK – Motive of the declarant cannot be to live
 If they manifest that, then they’re not aware they’ll die
 Not allowed, even if they die, undermines trustworthiness
 EX: W reports that Charlotte said, “yesterday he said he would kill me”
o Hearsay within hearsay
o 801(d)(2) – admission by a party opponent (husband), prior
acknowledgement of a fact that is inconsistent with position at trial
o Challenge what you can – Judge will be disinclined to rip from context
 Say “he” could apply to husband or lover
o If she later dies of natural causes – NOT ALLOWED IN
 Only admissible in homicide cases where the need is great enough,
or in civil cases
E. STATEMENTS AGAINST INTEREST
 R. 804(b)(3) Statement against interest. A statement that:
o (A) a reasonable person in the declarant’s position would have made only
if the person believed it to be true because, when made, it was so contrary
to the declarant’s proprietary or pecuniary interest or had so great a
tendency to invalidate the declarant’s claim against someone else or to
expose the declarant to civil or criminal liability; and
o (B) is supported by corroborating circumstances that clearly indicate its
trustworthiness, if it is offered in a criminal case as one that tends to
expose the declarant to criminal liability.
F. PRESENT SENSE IMPRESSIONS AND EXCITED UTTERANCES (803(1-2))
 R. 803 Hearsay Exceptions – These exceptions may be invoked whether or not the
out of court declarant is available
o Sometimes we prefer W reporting, rather than declarant trying to
remember and narrate his perceptions
o NO FOUNDATION required, simply ask what was said
o REMEMBER – If you object on hearsay, it’s the burden of the proponent
to show that an exception qualifies
 R. 803 (1) Present sense impression. A statement describing or explaining an
event or condition made while the declarant was perceiving the event or
condition, or immediately thereafter.
o Statement that is made relatively simultaneously with the event or
condition reported
o Almost non-existent at CL
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o Key factor which guarantees the reliability, circumstantial trustworthiness
is that the statement is made while the declarant is perceiving the event
 Immediately will be interpreted fairly strictly
R. 803 (2) Excited utterance. A statement relating to a startling event or condition
made while the declarant was under the stress of excitement caused by the event
or condition.
o Have to identify an exciting event – Idea is that the event triggers
excitement in the mind of the declarant
 Some causal relationship, declarant speaks as a result
 Generally can’t narrate past events
 Declarant need not be part involved in the event
 Event  Excitement  OCS
o We consider such statements to be circumstantially trustworthy
 Unlikely to have time to plan or surmise, really contemplate the
circumstances
o Different interpretations
 Some courts say it must describe the event, others that it doesn’t
even need to relate to the event
o Reliability is governed by the extent to which the dominion of excitement
remains with the declarant
 Some research that children retain excitement longer than adults
 Some say this is being stretched beyond its intended use
EX: Witnesses a car crash, trying to identify the driver in damages case
o Officer questions witnesses, is going to report what was said at court
 Problem that the officer was doing a lot of things at this time
 Issue about the capacity of the W who also is a declarant to
perceive at the time of the investigation, and also at the
time he spoke
 The declarants who gave evidence can’t be found
 This qualifies as an exciting event, and these declarants
were speaking under the excitement
EX: Suit against insurance, who say it was suicide, she says it was an accident
o Look for the exciting event based on the information base of the declarant
 James going downstairs was an exciting event when we see that
she knew he had been depressed and considering suicide
 Well established the preliminary matter may be established under
104 and supported by hearsay
o First, it’s telephonic, so must lay a foundation under 901b5 to show that it
was really her
o Then look to hearsay – “and she said to me …”
 Exciting event proved by hearsay immediately thereafter
 Could be to prove fear, but D wants it in to prove the truth of the
matter (that he was suicidal)
o Statement to the W where she says, “I’m afraid”
 803(3) as a statement of then existing state of mind
 She was afraid he was going to carry out his threat
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o Maid says decedent said he’d burn it down
 Hearsay within hearsay R. 805
 Each part under 805 must qualify under a hearsay
exception, or one statement may be used for a relevant nonhearsay purpose
 First level of hearsay is admissible under 803(1) or (2)
 His threat to burn it down is admissible under 803(3) because it’s a
statement to prove an act intended
o W saying “I told her to call the police”
 801(d)(1) – his own prior statement
 But it’s not to prove the truth of the matter asserted
 Out of court statement not for TMA, objection overruled
o W later says the maid appeared to be surprisingly calm
 A fact that would otherwise be pertinent to the analysis for 803(2)
comes up after it has been admitted as an excited utterance
 You can ask a preliminary question before the court rules
on 803(2), otherwise have to try to get a motion to strike
 But it’s alternatively admissible under 803(1), so it’s still ok
o Compare 803(1) and (2)
 She’s talking about how depressed he’s been – Despite the
retrospective nature of this statement, it may cease at some point to
be a statement by the declarant while she is perceiving
 It’s looking backward – very troublesome for 803(1), very
weak argument
 The dominion of the excitement is so profound that 803(2)
will work well here
G. RES GESTAE
 People v. Hill – Tape recording of conversations with people outside the D, state
argues they’re part of the res gestae of the offense, necessary to show surrounding
circumstances
o Res gesae – Refers to an exception to the hearsay rule for statements made
spontaneously and concurrently with an event
o Court refuses to allow it, res gestae is DEAD
H. STATEMENTS OF MENTAL, EMOTIONAL OR PHYSICAL CONDITION
 803(3) THEN existing mental, emotional, or physical condition. – A statement of
the declarant's then existing state of mind, emotion, sensation, or physical
condition (such as intent, plan, motive, design, mental feeling, pain, and bodily
health), but not including a statement of memory or belief to prove the fact
remembered or believed unless it relates to the execution, revocation,
identification, or terms of declarant's will
 Certain statements under 803(3) are deemed trustworthy
o They must hold that conscious belief at the time they speak
o We don’t think they are mistaken under these circumstances
o There is a risk of unreliability
 Declarant may be joking, lying, exaggerating, unaware of the true
nature of his state of mind, but these dangers are minimal
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
We draw the line at retrospective statements of memory
o We consider those to be untrustworthy – They represent problems with a
state of mind that is passed, rather than contemporaneous
 With the exception relating to wills
 EX: Personal injury case for negligent maintenance of work area
o Paula slipped on a slippery floor, W states that since the fall, Paula has on
numerous occasions cried out in pain
o Statement of declarant are cries of pain, but there is no assertion
 So it’s not a statement, and it can’t be hearsay
 It’s admissible because it’s relevant for proving damages
o W will testify that Paula has said to him her back is hurting
 Paula is intending to make an assertion – it’s hearsay
 But it’s admissible as an exception under 803(3) of her then
existing pain
o W says she told him she’s had outburst while doing chores
 Statement of memory to prove a fact remembered
 Illustrates a statement 803(3) doesn’t consider reliable
 Retrospective statement in reference to other events
o Self-serving is NOT a basis for an objection
 The whole idea of how the model works is you put into the trial
every thing you can find that’s self-serving
 EX: Fight over a tiara, Diana has it, Pamela thinks she gets half
o Roger will testify that 3 weeks after Diane got the tiara, the mother said to
him, “I’m glad I gave the tiara to her then”
 Out of court statement to prove truth of matter, so it’s hearsay
 But it satisfies 803(3) because it expresses her THEN mental state
 The rule doesn’t bar reference to past events
 It bars statements of memory to prove the facts
remembered – can’t be used to prove she gave her the tiara
 We are happy to have W report then existing mental state
o Gertrude now takes the stand as witness for Pamela, two days before
Diana got the tiara, the mother said, “I’m going to give the tiara to her”
 It CANNOT be a statement of intent to prove an act intended
 There is no deliver to Pamela, she died before it happened
 She did give it to Diane and it’s therefore relevant to prove her
intent when she gave it to Diane
 Her intent when she gave it to Diane was that it was a loan,
on a temporary basis
 Statement of intent here and since she delivered it to Diane, it’s
admissible to show the nature of the intent
I. STATEMENTS FOR MEDICAL DIAGNOSIS OR TREATMENT
 803(4) Statements for purposes of medical diagnosis or treatment – Statements
made for purposes of medical diagnosis or treatment and describing medical
history, or past or present symptoms, pain, or sensations, or the inception or
general character of the cause or external source thereof insofar as reasonably
pertinent to diagnosis or treatment
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o Theoretical underpinning is that people who go to doctors tell the truth
because they’re motivated to get better
o Today we live in a world with large numbers of professions that are
working with clients – RNs, psychologist, counselor, therapist
 Law is not of one mind about this issue; confined or not?
 It’s another exception that is being strained by modern practices
 Some states limit it to medical dr.s, others allow it to lots of people
 Whether the declarant reasonably expected diagnosis and
treatment from the person
 803(4) – Types of cases
o 1. Doctor’s reliance cases – If it was helpful in doctor’s diagnosis in
treatment, these cases often say NOTHING about the declarant
 Policy of necessity – we need this evidence, so focus on the doctor
 We need this if the declarant can’t testify
o 2. Declarant focused cases – More restrictive approach, look from the
declarant’s perspective to see if the exception is properly grounded
 Ex; Court has said the child in question didn’t understand the
purpose for which the doctor’s questions were asked
 Colorado – swings it to rule 807 (residual rule)
 Allows just to accept it where there’s no other exception
 Maryland – medical diagnosis doesn’t cover the two year old
statement that her father molested her
 Too young to understand the connection between honest
answers and treatment
o 3. Court looks and doctor’s use AND declarant focus
 Probably what the rule intended
 Look at both of these underpinnings
 EX: Child tells her mother her step-father molested her two days ago
o Look at the environment in which that declarant spoke
 Are they in a divorce proceeding, is there anything that would
motivate the mother to ask leading questions, were there people
there who don’t like the husband
 May be able to prove it’s inherently untrustworthy
 Relevant non-hearsay purpose of subsequent conduct, show what
the mother did in response
o Mother then took child to counseling center
 Look at that encounter – are these professionals, are they
volunteers, what was the subjective motive of the declarant, did
they engage in counseling first which might suggest predisposition
of the volunteers?
J. RECORDED MEMORY
 803(5) Recorded recollection – A memorandum or record concerning a matter
about which a witness once had knowledge but now has insufficient recollection
to enable the witness to testify fully and accurately, shown to have been made or
adopted by the witness when the matter was fresh in the witness' memory and to
reflect that knowledge correctly. If admitted, the memorandum or record may be
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read into evidence but may not itself be received as an exhibit unless offered by
an adverse party
 Past Recollection Recorded –when you want to SUBSTITUTE witness’ lost
memory, W doesn’t testify, so proponent seeks to offer into evidence the
recollection that was recorded at that time, higher standard
 Requirements:
o Memorandum or record
o Matter about which W once had knowledge
o Now has insufficient recollection to testify fully and accurately
o Made or adopted by W
 Or someone else prepared the writing and W read it at the time,
and can testify today that she read it at the time, approved it, and
adopted it
o Writing made at time when memory was fresh in W’s memory
o Reflects that knowledge correctly
o W must acknowledge the accuracy of the statement at trial
K. REGULARLY KEPT RECORDS AND PUBLIC RECORDS
 803(6) Records of regularly conducted activity – A memorandum, report, record,
or data compilation, in any form, of acts, events, conditions, opinions, or
diagnoses, made at or near the time by, or from information transmitted by, a
person with knowledge, if kept in the course of a regularly conducted business
activity, and if it was the regular practice of that business activity to make the
memorandum, report, record or data compilation, all as shown by the testimony
of the custodian or other qualified witness, or by certification that complies with
Rule 902(11), Rule 902(12), or a statute permitting certification, unless the source
of information or the method or circumstances of preparation indicate lack of
trustworthiness. The term "business" as used in this paragraph includes business,
institution, association, profession, occupation, and calling of every kind, whether
or not conducted for profit.
 Having no knowledge about the transaction, had to resort to records
o People realized that it was in their interest to keep records of transactions,
if they couldn’t remember it would be very difficult to prove
 Advisory committee notes – commonwealth foundation produced a model statute,
which was so popular that it was adopted by many states
o 1. It pertained to a business – refers to any entity which kept records
 Carried on into the modern law
 Doesn’t matter if the entity is for profit or not for profit, any entity
that keeps records on a regular basis is within the rule
 “Business” is given a very broad definition – This refers to any
entity which keeps records on a regular basis
o 2. Lack of personal knowledge of the maker goes to weight and not
admissibility of the record
o 3. The record was admissible in evidence when regularly made
 Policy underpinnings that justify its place among the exceptions
 In re Relationship of ET– regularity of the record that assures its
trustworthiness
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



Trustworthy and Necessary
o These habits of precision, business reliance on these records, obligation or
duty to make an accurate record, system of checks and balances
o We certainly need them, people can’t ordinarily remember what’s in them
Have to lay a foundation for business exception
ET case – Certain problem areas
o 1. Source problem –source of the recorded information
 ET, they were concerned about the amount of information
provided by people who had no duty to give information to SCAN
o 2. Entries which are in opinion form
 Sometimes records contain opinions and when we consider that it’s
never been cross-examined, that gives us pause
 Special attention will be given to these
o 3. Motivation problem
 Deals with the circumstances under which the record is prepared
 Maybe not prepared by entity as capacity as business, but for some
other purpose such as litigation
 Judge has the discretion to keep it out even if a proper foundation
has been laid for its admissibility
HYPO 1: Wrongful death case, driver negligent
o D calls police officer to the stand, who has no personal knowledge
 Show exhibit, which will be officer’s report, then lay the
foundation by having W identify it as his report
o Now lay business records foundation – 4 touchstones
 Assuming police office is a business within the exception, but
could ask if they keep regular records
 Four points
 1. Made in regular course of business
 2. Regular practice to keep such records
 3. Made at or near the time
 4. By someone with personal knowledge or from
information provide by person with knowledge
o Now go to the rule – judge determines that page one of the report contains
a “statement of bystander”
 Statement says “B said to me, ‘X went through the red light’”
 Source problem – Record contains information from a
source that gives us pause, situation where there’s a
question as to whether this should be included
 Advisory committee notes on how to interpret source problem
 The courts have held that in order for a statement to be
made in the regular course of business, the person that
provides it must have a business duty to do so
o B had no duty to speak to the officer so whatever B
said to him is not part of the business record
 Johnson v. Lutz – Appeals affirmed trial judge which kept this part
out of business exception
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

o No exception applies to B’s statement – it’s OCS to prove TMA
HYPO 2 : Elderly woman, O, owned an apartment building and leased to business
tenants downstairs, one of which was S (Kelly v. Wasserman)
o O said to S he could have the building, but she’d live there till she died
 S declares O gave him the building in fee simple, only condition
was she live there for 3 years, and now those are up
 O seeks to have an equitable trust arrangement to live there
o Trial – O calls a caseworker from SS agency, who knows nothing about
the case but looks after records, exhibit of contacts between O and SS
 No question the agency is a business within the rule
 Foundation - Regular course, regular practice, at or near time, by
someone with personal knowledge (ok)
 BUT – includes a call where S agreed to O’s version
 NOT allowed in – The topic in the business records did not
relate to the business of Social Services
 This part is affirmed it on authority of Johnson v. Lutz
 But it’s admissible because it’s a party admission
 Hearsay within hearsay – no other exception would allow it
in for Johnson
 Here, what S said to Z is an admission, prior statement that
is inconsistent with the position he now takes at trial
HYPO 3: Lawsuit against a bus company and theory of P is negligence
o D at trial calls A to the witness box, who is an accident investigator
employed by the bus company
 Federal and state governments require transportation to have
accident investigation and to file forms on investigations
 D wants in evidence from the report where the bus driver, B, said
the light was red for the P, who went through anyway (B is not
available)
o Foundation – It’s ok under business records foundation and there is no
source problem, but have a motivation problem
 Palmer v. Hoffman – Dealt with a similar situation involving a
train crash and the court’s exclusion of the statement where the
court concluded it was not made in the regular course of business
but for the purpose of litigation
 Critics – how can you reject when prepared with an eye
towards litigation when you allow such information in
general?
 Palmer stands for codification in 803(6) – “unless the source of
information or method or circumstances of preparation indicate
lack of trustworthiness”
 Court’s exercise of discretion – all things on balance,
record has more to do with litigation than with RR
EX: P in a car accident keeps a diary of her pain for a year
o Business within the meaning of the exception for regularly kept records
has nothing to do with business in the common meaning of the term
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Better view is that this diary doesn’t rise to the level of an 803(6) record
803(5) – no insufficient memory
803(4) – maybe a series of medical exceptions, very flexible rule
“Couldn’t sleep” – fine under 803(4), not ok under 803(3), existing mental
state because it’s past
 803(7) Absence of entry in records kept in accordance with the provisions of
paragraph (6) – Lack of business record is admissible, if relevant, of something’s
non-occurrence or nonexistence if its occurrence or existence would normally
have been recorded
 R. 803(8) Public Records and Reports – Records, reports, statements, or data
compilations, in any form, of public offices or agencies, setting forth (A) the
activities of the office or agency, or (B) matters observed pursuant to duty
imposed by law as to which matters there was a duty to report, excluding,
however, in criminal cases matters observed by police officers and other law
enforcement personnel, or (C) in civil actions and proceedings and against the
Government in criminal cases, factual findings resulting from an investigation
made pursuant to authority granted by law, unless the sources of information or
other circumstances indicate lack of trustworthiness
o Only applies in civil case, not criminal
L. FORFEITURE BY WRONGDOING
 804(b)(6) Hearsay exception, declarant must be unavailable: Forfeiture by
wrongdoing – A statement offered against a party that has engaged or acquiesced
in wrongdoing that was intended to, and did, procure the unavailability of the
declarant as a witness
M. RESIDUAL EXCEPTIONS
 R. 807 Residual Exception – Judge may admit evidence not under the prior
exceptions but has a circumstantial guarantee of truth, catchall
o EX: Attorney had to show a building had been on fire without witnesses
and fire department record
 Newspaper article about the fire was let in, even though there was
no exception that would allow it
 The rule against hearsay is not a rule against common sense
 Judge has discretion
o Judge can allow it in:
 A. Offered as evidence of a material fact
 B. This statement is more probative for the purpose offered than
any other evidence you can get
 C. General purposes of the rule will best be served by admitting it
 Find the purposes at R. 102 – liberal construction rule
o Must read 102 along with 807
o Notice requirement – Broadly written, but it is required
 Must give notice to the other side prior to hearing within a
sufficient amount of time offered to meet the proof
N. ATTACKING AND SUPPORTING CREDIBILITY OF DECLARANT
 R. 806 – When a hearsay statement, or a statement defined in Rule 801(d)(2)(C),
(D), or (E), has been admitted in evidence, the credibility of the declarant may be
o
o
o
o
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attacked, and if attacked may be supported, by any evidence which would be
admissible for those purposes if declarant had testified as a witness. Evidence of a
statement or conduct by the declarant at any time, inconsistent with the
declarant's hearsay statement, is not subject to any requirement that the declarant
may have been afforded an opportunity to deny or explain. If the party against
whom a hearsay statement has been admitted calls the declarant as a witness, the
party is entitled to examine the declarant on the statement as if under crossexamination
O. HEARSAY AND THE RIGHT OF CONFRONTATION
 Hearsay offends the 6th A right to cross examine Ws against
o 6th A provides that in all prosecutions, the accused shall be afforded the
right to confront those who speak against them
 First Issue – 6th A has never been interpreted literally, otherwise all hearsay would
be unconstitutional
o Confrontation clause acts as a filter
 Ohio v. Roberts (1980) – former testimony case: writing bad checks, forgery, etc.
o Prior to the trial, the D saw his friend at the courthouse and he called her
as a W, hoping she would support his story that he had permission to use
the parents’ checks – She says NO, he never had permission
 At trial prosecution showed that the declarant was unavailable and
offered into evidence the transcript of her testimony, which the
court allowed
o 804(b)(1) when hearsay is offered against, the parties must be the same
 Court found that while this was a little unorthodox (since he called
her to support him) the court found that she had been crossexamined and he was convicted
o Case goes to SC – on confrontation clause and the hearsay rule
 Court announced a recipe – confrontation clause operates in 2
ways to restrict admission of hearsay in criminal
 1. Rule of necessity – prosecutor must produce the declarant or
show that the declarant is unavailable
 Under necessity, we’re going to place upon the proponent
the burden of showing unavailability
 2. If unavailable, need such trustworthiness that there’s no material
departure from the reason of the rule (sub for cross)
 Such reliability can be inferred, without more, where a
firmly rooted hearsay exception applies or there is other
indicia applying
o After Roberts – had to show declarant was unavailable and that a firmly
rooted hearsay exception applied OR that there was some other indicia of
trustworthiness
 “OR” has been a source of confusion, we just knew it meant
discretion, gave the judge a lot of power
 Inadi v. U.S (1986). – D sought to exclude taped convos between people in the
conspiracy, saying they didn’t satisfy 801(d)(2)(E), a statement by a coconspirator
of a party during the course and in furtherance of the conspiracy
69



o Also objected to admission of evidence on confrontation ground
o Objection hearsay and objection confrontation clause
 In a criminal case, the confrontation clause supersedes the
application of the statutes
 Here, it was ok under FRE, but not on Confrontation Clause
o SC – confrontation clause does NOT require showing of unavailability
 Roberts being read too broadly
 The court is pulling back a little and saying we’re going to address
these hearsay exceptions one at a time
 This is an 801d2e case involving co-conspirators, it’s been
exempted from hearsay for a good reason
o In coconspirator statements there is no unavailability requirement
 The statement must still pass hearsay, but to satisfy confrontation,
that’s all that is necessary
Idaho v. Wright (1990) – two child victims, molestation, one 5.5 and the other 2.5
o Court admits statement of doctor with the 2 year old under residual
hearsay exception
o SC – the admission of child statements violated CC rights, they lack
circumstantial guarantee of trustworthiness, court goes back to Roberts
 To satisfy hearsay and confrontation clause:
 Unavailability of declarant
 That the out of court statement is reliable
White v. Illinois – D charged with sexual assault upon a four year old girl
o Trial court allowed girl’s statements offered by other people
 Allowed to testify under exceptions (medical diagnosis and
spontaneous utterance exceptions)
o Went to SC – confrontation clause does NOT require unavailability be
proved under those two exceptions
 Going back to Inadi, looking at exceptions one at a time, Roberts
didn’t establish across the board unavailability
 Discussion on why unavailability is not appropriate
 We like this hearsay and we cannot recapture that evidence
in the same way in the trial
 We like the context in which these statements are made
 They can be trusted, we can’t duplicate it in the courtroom
so a rule of unavailability wouldn’t help
 We retreat from Roberts recipe here
Crawford v. Davis – Court didn’t like Roberts, historically the CC was aimed at
prohibiting ex parte statements, usually in the form of an affidavit, where people
were historically convicted on un-cross-examined ex parte E
o Roberts, according to the court, was egregious in that it gave the judge
discretion the ability to allow anything in under that second prong
 Wanted to return to literal interpretation
 Testimonial is the key word in Crawford
o If “testimonial” evidence is at issue, 6th A CC demands to let it in:
 Prior opportunity to cross examine W
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



 DC unavailable at trial
 (Like an exception to the prohibition of testimonial E)
o Testimonial – Statement where Declarant is bearing witness against the D
 Crawford doesn’t define, but gave us a clue on testimony
 1. Prior testimony at preliminary hearing, grand jury,
former trial
 2. Police interrogations
 3. Whether objective would reasonably believe that
statement would be available for use at a later trial
 Look to see if declarant is acting as a W, functional equivalent of
testimony
Davis v. Washington (2006) – 911 call conversation shifts to more of a narrative
o Q – Is this person is bearing witness or are they still speaking in the
emergency environment of the situation
 We may wish to impute to this declarant knowledge and
experience that might affect how we analyze the statement
o Hearsay statements made here were NOT "testimonial" in nature and thus
their introduction at trial did not violate the Confrontation Clause as
defined in Crawford
Hammon v. Indiana (2005) – D convicted of domestic battery, wife signed a
police statement regarding abuse, but later refused to testify at trial
o SC ruled that the police report did qualify as testimonial in nature and was
therefore inadmissible
o Is the declarant serving as a W against the D? – Yes, it’s testimonial
 Court thinks this sounds like a detached statement where the wife
may be bearing W against the D
 If not, then it’s not testimonial and subject to hearsay, not
confrontation clause
o Statements are not testimonial when made in the course of police
interrogation under circumstances objectively indicating that the primary
purpose of the interrogation is to enable police assistance to meet an
ongoing emergency
 Look at whether the declarant knows what he or she is saying is
going to be used later on in prosecution
 If seeking to show these statements are prohibited because
testimonial, you have to show they’re not an emergency
Second issue – How the confrontation clause affects testimonial evidence at trial
Coy v. Iowa (1988) – Shield placed before the witnesses so W can’t see D at all
o Key was that the Ws could give evidence without looking at him
o D argued it was a violation of his confrontation clause
 Many thought the shield was patently unfair – painted in the mind
of the jury that the D was dangerous and the girls had to be
protected by a barrier to give their evidence
o Confrontation clause by its words provides the D the right to confront face
to face the Ws giving evidence against him
 This CORE GUARANTEE
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 Previously saying for years the core right is cross
 Is he saying here it’s eye to eye?
o Court held appellant’s right to face to face was violated by a statute that
had allowed the screen
o Scalia – even if there’s an exception to face to face (acknowledges there
can be exceptions – IMPORTANT) there’s nothing in the record to show
that these Ws needed protection
 No individualized findings
 Maryland v. Craig (1990) – One way closed-circuit television used
o Found child would suffer serious emotional distress
 All that was missing was face to face
 Still had oath, cross exam, W observed during testimony by judge,
jury, and D
o Reliability assured by “combined effect” of “elements of confrontation”
 1. Physical presence of W
 2. W’s oath
 3. Cross-examination
 4. Fact finder’s observation of W’s demeanor
o Necessity – Had to show it was to protect child
 1. Procedure necessary to protect child’s welfare
 2. C would be traumatized not by the courtroom generally but by
D’s presence, must be that nexus
 3. Emotional distress suffered by C in the D’s presence must be
more than de minimus
 It’s unclear exactly what this means
o O’Connor – Face to face it just one element and may be dispensed with if
the reliability of the testimony can be otherwise assured by the central
concern of subjecting evidence in an adversary proceeding before a trial
court to assure reliability
 Reliability is assured by the combined effects of the elements of
confrontation
 Denial of right of confrontation is permitted if necessary to further
an important public policy, such as protection of child Ws
 Have to remember there is no confrontation clause right for civil cases
JUDICIAL NOTICE
 R. 201 Judicial Notice of Adjudicative Facts
o (a) Scope of rule – This rule governs only judicial notice of adjudicative
facts
o (b) Kinds of facts – A judicially noticed fact must be one not subject to
reasonable dispute in that it is either (1) generally known within the
territorial jurisdiction of the trial court or (2) capable of accurate and ready
determination by resort to sources whose accuracy cannot reasonably be
questioned.
o (c) When discretionary – A court may take judicial notice, whether
requested or not
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o (d) When mandatory – A court shall take judicial notice if requested by a
party and supplied with the necessary information.
o (e) Opportunity to be heard – A party is entitled upon timely request to an
opportunity to be heard as to the propriety of taking judicial notice and the
tenor of the matter noticed. In the absence of prior notification, the request
may be made after judicial notice has been taken.
o (f) Time of taking notice – Judicial notice may be taken at any stage of the
proceeding
o (g) Instructing jury – In a civil action or proceeding, the court shall
instruct the jury to accept as conclusive any fact judicially noticed. In a
criminal case, the court shall instruct the jury that it may, but is not
required to, accept as conclusive any fact judicially noticed.
PRIVILEGES
 R. 501. General Rule - Except as otherwise required by the Constitution of the
United States or provided by Act of Congress or in rules prescribed by the
Supreme Court pursuant to statutory authority, the privilege of a witness, person,
government, State, or political subdivision thereof shall be governed by the
principles of the common law as they may be interpreted by the courts of the
United States in the light of reason and experience. However, in civil actions and
proceedings, with respect to an element of a claim or defense as to which State
law supplies the rule of decision, the privilege of a witness, person, government,
State, or political subdivision thereof shall be determined in accordance with
State law
PRESUMPTIONS AND BURDENS OF PROOF
 R. 301 Presumptions in General Civil Actions and Proceedings – In all civil
actions and proceedings not otherwise provided for by Act of Congress or by
these rules, a presumption imposes on the party against whom it is directed the
burden of going forward with evidence to rebut or meet the presumption, but does
not shift to such party the burden of proof in the sense of the risk of
nonpersuasion, which remains throughout the trial upon the party on whom it was
originally cast.
 Rule 302. Applicability of State Law in Civil Actions and Proceedings – In civil
actions and proceedings, the effect of a presumption respecting a fact which is an
element of a claim or defense as to which State law supplies the rule of decision is
determined in accordance with State law.
 Rule 611. Mode and Order of Interrogation and Presentation
o (a) Control by court – The court shall exercise reasonable control over the
mode and order of interrogating witnesses and presenting evidence so as
to (1) make the interrogation and presentation effective for the
ascertainment of the truth, (2) avoid needless consumption of time, and (3)
protect witnesses from harassment or undue embarrassment.
o (b) Scope of cross-examination – Cross-examination should be limited to
the subject matter of the direct examination and matters affecting the
credibility of the witness. The court may, in the exercise of discretion,
permit inquiry into additional matters as if on direct examination
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