Abhijit Das, 1999
Evidence Outline, reprint 3/6/2016
Abhijit Das – Evidence Outline
Table of Contents
RELEVANCE ........................................................................ 1
WITNESSES ........................................................................ 14
WHAT KIND OF PROOF? ....................................................... 1
IS THE EVIDENCE RELEVANT TO THE ISSUE? ....................... 1
COMPETENCY AND PERSONAL KNOWLEDGE ................... 14


FRE 401 (71) ..............................................................1
RELEVANT BUT STILL EXCLUDED ....................................... 1

FRE 403 (75) ..............................................................1
CONDITIONAL RELEVANCE DETERMINATIONS .................... 1

FRE 104 (44) ..............................................................1
LIMITED INCLUSION OR EXCLUSION .................................... 2


FRE 105 (49) ..............................................................2
FRE 106 (50) ..............................................................2

RELEVANCE AND PROBABILITIES ....................................... 2
CHARACTER ........................................................................ 2
 FRE 607 (129), 608 (130), 609 (134), 613 (156), 801
(178) 16
FRE 404 (77) ..............................................................2
Character in Civil Cases ................................................. 2
Character in Criminal Cases .......................................... 2
Victim’s Character .......................................................... 3
PRIOR ACTS / HABIT........................................................... 3

Impeaching Credibility ................................................. 16
REHABILITATION OF WITNESSES ...................................... 18

FRE 404(77), 406(84) ................................................3

FRE 407 (86), 408, 409, 410, 411 ..............................4

FRE 412 (99), 413 (106) ............................................5
HEARSAY .............................................................................. 5

BASIC DEFINITION .............................................................. 6
FRE 801 (a-c) (178) ...................................................6
FOUNDATIONAL EVIDENCE AND
AUTHENTICATION .......................................................... 21
FRE 801(d) (179) .......................................................7
DANGERS OF HEARSAY........................................................ 9
BENEFITS OF TESTIMONY; CONTRAST WITH HEARSAY ........ 9
HEARSAY EXCEPTIONS (DECLARANT  UNAVAILABLE) ..... 9

AUTHENTICATION .............................................................. 21

FRE 901 (247) ......................................................... 21
Steps in Authenticating ................................................. 21
Tape Recordings ........................................................... 21
Telephone Conversations .............................................. 22
Self-Authenticating Exhibits.......................................... 22
BEST EVIDENCE DOCTRINE ............................................. 22
FRE 803 (191) ............................................................9
POLICY – FOR EXCEPTIONS (DECLARANT = UNAVAILABLE)
........................................................................................... 13
HEARSAY EXCEPTIONS (DECLARANT = UNAVAILABLE) ... 13

FRE 612 (153) ......................................................... 21
Adverse Party ................................................................ 21
STATEMENTS WHICH AREN’T HEARSAY ............................. 7

FRE 501 (113), 502 (299), 503 (300), 504 (306)..... 19
State & Common Law ................................................... 19
Social Worker-Client .................................................... 20
Physician-Patient .......................................................... 20
Husband-Wife ............................................................... 21
WRITTEN MEMORANDA ................................................... 21
Rape ................................................................................ 5
Similar Sexual Assault Cases .......................................... 5

FRE 611 (147) ......................................................... 19
Cross Examination ........................................................ 19
Direct Examination ....................................................... 19
PRIVILEGES ...................................................................... 19
Relevance Exceptions for Public Policy ......................... 4
Documents and Records.................................................. 5
TYPES OF EVIDENCE: SEXUAL ASSAULT / RAPE ................. 5

FRE 608 (130) ......................................................... 18
Basic Principles ............................................................ 19
Ways to Repair… .......................................................... 19
LEADING QUESTIONS ........................................................ 19
Other Bad Acts of Misconduct ........................................ 3
Habit ............................................................................... 4
PUBLIC POLICY EXCLUSIONS / PLEAS ................................. 4

FRE 701 (161), 702(162), 704 (165), 705 (167)...... 15
Lay Witnesses ................................................................ 15
Expert Witnesses ........................................................... 15
IMPEACHMENT OF WITNESSES.......................................... 16
RELEVANCE PART DEUX ................................................ 2

FRE 601 (119), 602 (121), 603 (122) ...................... 14
Competency Assumed.................................................... 14
Personal Knowledge Required ..................................... 14
Oath .............................................................................. 14
Dead Man Statutes ........................................................ 15
Testimony by Jurors ...................................................... 15
HYPNOSIS IN THE COURTROOM ......................................... 15
OPINION TESTIMONY AND SCIENTIFIC EVIDENCE ........... 15
FRE 804(b) (221) .....................................................13

FRE 1001 (259), 1002 (261) .................................... 22
Duplicates ..................................................................... 22
Summaries..................................................................... 22
Judge/Jury Allocation ................................................... 22
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Abhijit Das, 1999
Evidence Outline, reprint 3/6/2016

BURDENS OF PROOF ....................................................... 22
BURDEN OF PRODUCTION................................................. 22


FRE 301 (63) ............................................................22
FRE 301 (63) ............................................................23
Generally....................................................................... 23
Allocation ...................................................................... 23
Standards of Proof ........................................................ 23
BURDENS IN CIVIL CASES.................................................. 23

FRE 201 (53) ........................................................... 24
Legislative Facts ........................................................... 24
Adjudicative Facts ........................................................ 24
Mandatory Judicial Notice ........................................... 24
Permissive Judicial Notice ............................................ 24
Effect of Judicial Notice ................................................ 24
Presumptions................................................................. 22
BURDEN OF PERSUASION .................................................. 23

FRE 301 (63) ........................................................... 23
JUDICIAL NOTICE ............................................................. 24
FRE 301 (63) ............................................................23
BURDENS IN CRIMINAL CASES ......................................... 23
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Evidence Outline
Relevance
Relevant But Still Excluded
Clark: Relevance is a low threshold, and it is very
difficult to exclude on this basis. The judge makes
the call based on his experience. The “step
method” is used to show aspects of the situation.
FRE 403 (75)
Clark: FRE403 is also written to favor admissibility
because the burden is to prove why it shouldn’t be
admitted, not the other way around. Also, never
make this your first argument – it signals you
have nothing else on which to exclude.
Admissible
Inadmissible
What Kind of Proof?
1. Direct Evidence – proves a proposition directly. If
believed, solves the matter at issue. [e.g. testimony
by eyewitness that he saw defendant kill victim]
2. Circumstantial Evidence – tends to prove a
proposition indirectly through inference (additional
reasoning is used to reach the proposition) [e.g.
testimony by officer that defendant was seen
running after gun shot that killed victim was heard]
In the judge’s judgment, if the evidence’s relevance 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”
it may be excluded.
1. Prejudice – “unfair prejudice” is the key: judgment
will be made on an improper basis such as emotion.
a. gruesome pictures – often excluded, especially
if the pictures are large or in color. [State v.
Chappel, AZ, 1983 (79) - which is an exception
to the general rule] However, when necessary to
show how the defendant brought about death,
pictures are not usually excluded despite
prejudicial impact.
b. prior crimes – usually excluded because the
possibility jurors will be less concerned with the
high burden of proof for a person with a record
– it is an abuse of discretion to admit name and
type of prior conviction despite a defendant’s
offer to stipulate to a conviction [Old Chief v.
US, US, 1997 (s377)]
2. waste of time / cumulative - limits may be
imposed on the number of witnesses, if repetitive,
etc.
3. no unfair surprise – FRE403 doesn’t recognize
“unfair surprise” as a ground for excluding
otherwise relevant evidence.
Is the Evidence Relevant to the Issue?
FRE 401 (71)
FRE401 merges the “materiality” and “probative” inquiry
into one test.
1. Does it tend to prove or disprove a fact of
consequence?
a. Materiality – Whether the evidence being offered
relates to an issue in the case – (relationship
between the fact and the applicable substantive law
– certain matters like bias and credibility are
always in issue.) [e.g. In an action for negligence in
a car accident, evidence that car was going 35 in a
20 would be material, whereas 35 in a 55 wouldn’t]
If direct evidence, and passes this test, always
relevant. Circumstantial evidence must satisfy
probative test.
b. Probative – The evidence must make the factual
proposition more or less likely than without the
evidence. [e.g. testimony by witness to assert she
thought car was going 55 to back up claim that car
was travelling at 55 makes it more likely that it was]
“Step Method” – When the link isn’t obvious, an
“evidential hypothesis” or “chain of inference”
must be provided.
a) the longer the chain, the less probative value,
b) the circumstantial evidence need not make
the entire fact more probable, but rather make an
element of that fact more probable.
Conditional Relevance Determinations
FRE 104 (44)
Ordinary relevance determinations do not involve a
finding of fact. Some evidence, however, is relevant
only if some other preliminary fact exists. [e.g. the fact a
warning was made only relevant if it was heard.
preliminary fact = whether it was heard.]
1. jury decides – in a majority of courts and the FRE
hold that the jury should decide questions of
conditional relevance
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Evidence Outline
2. judge decides – a judge may disallow of he
determines that a reasonable jury could not possibly
find that the preliminary fact existed. A judge may
allow evidence subject to a promised later proof of
the preliminary fact.
Clark: 104(b) is a dumb rule. To be subject to this
rule evidence must be type that can be
disregarded if condition is deemed unmet.
Evidence that may linger, like membership in the
KKK, wouldn’t really work. *** CHECK THIS
Relevance Part Deux
Admissible
Inadmissible
Limited Inclusion or Exclusion
Character
FRE 105 (49)
FRE 404 (77)
If evidence is admissible as per one defendant or
purpose and not another, the court can give limiting
instructions to the jury.
Character in Civil Cases1
1. Generally not admissible to prove probable conduct
[e.g. Plaintiff can’t introduce evidence that
defendant is usually a reckless driver to prove that
he was negligent on the day in question.]
2. Admissible when directly in issue
a. Character is an ultimate fact in dispute and
must be proved by competent evidence2
i. Defamation: Plaintiff sues defendant for
calling plaintiff a thief and defendant pleads
truth as an affirmative defense – that
plaintiff is as despicable as they say he is.
ii. Negligent Entrustment: plaintiff sues
defendant for negligently permitting the use
of car by reckless driver, driver’s character
for recklessness at issue – should not have
lent car, etc.
iii. Wrongful Death – as evidence that the
damages for loss of the individual – a
compulsive gambler for example – is not
great
b. Evidence of either reputation in the
community, opinion, or specific acts to show
this character issue. Hence, FRE allows any type
of evidence (reputation, opinion, or specific
acts)3 when character is in issue.
Clark: you generally don’t want this. Not only don’t
juries always follow the rules, this ends up calling
attention to evidence you don’t even want the jury
to consider.
FRE 106 (50)
Generally known as the rule of completeness, this rule
allows another part of a writing earlier introduced to be
presented in order to correct what would have otherwise
been an inaccurate or unclear picture of the situation.
Relevance and Probabilities
If probability evidence – in a case where plaintiff was
hit by unidentified blue bus the fact that 85% of blue
buses in town are operated by D - is to be introduced, it
must be upon a solid foundation. [Consider People v.
Collins, CA, 1968, 96 – black man, blond girl in yellow
car – mathematician multiplies probability of partly
yellow car (1/10) by moustache (1/4) by girl with
ponytail (1/10) by girl with blond hair (1/3) by all the
other factors to get 1 in 12 million that couple exists
with such criteria – Court reversed conviction – a) no
scientific basis for the probability numbers, b) no
showing that factors were independent – which means
no reason to believe they should be multiplied, c) jury
may accord too much weight to the resulting figure
instead of any independent probabilities.]
Character in Criminal Cases4
1. Generally bad character inadmissible to prove he
is more likely to have committed crime5
Clark: You might get away with statements like
“what are the chances” but this form is too
conclusory.
1
FRE 404
FRE 405(b)
3
FRE 404(b)
4
FRE 404
2
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Abhijit Das, 1999
Evidence Outline
Prior Acts / Habit
2. Accused may always introduce evidence of good
character having tendency to show he didn’t
commit the crime whether or not he takes the stand.
a. Methods of Proving Character
i. traditional: witness limited to reputation
only, opinion or specific acts not allowed.
ii. modern: witness may testify to defendant’s
reputation and his personal opinion of
defendant, but not specific acts, which are
still not admissible
3. Prosecution may not initiate evidence of bad
character of defendant, but if defendant puts
character in issue by having a character witness
testify as to his opinion of defendant’s character,
prosecution may rebut by showing bad character.
a. by merely taking the stand, the accused
doesn’t “open the door.”
4. Cross examination
a. majority view: prosecution may test the
credibility of defense witnesses by asking
whether witness has heard of particular
instances of misconduct (reputation) and may
ask about arrests and convictions
b. modern view: inquiry is allowed regarding
specific instances of conduct [“Do you know
that ------?” is allowed. if a witness denies
knowledge of specific instances, prosecution
cannot prove by extrinsic evidence
(arrest/conviction records)
FRE 404(77), 406(84)
Other Bad Acts of Misconduct
1. Admissible to prove another element of present
crime7 and not to show defendant had criminal
propensity. It is unclear what level of proof is
required on the prior act sought to be introduced or
who should decide it.8
2. Huddleston four part test employed by many courts
in which a judge:
a. decides whether the evidence is offered for a
proper purpose
b. decides if it is relevant for that purpose
c. decides if the probative worth is outweighed
by the risk of unfair prejudice
d. limiting instruction on the request
3. Upon reasonable notice by request of defendant or
prosecution in a criminal case, admissible to prove
another purpose: MIMIC rule: Motive, Intent,
Mistake (Absence of), Identity, Common Plan or
Scheme9
a. Identity – if modus operandi is a crime
signature – must be very similar so as to almost
preclude the possibility that two different
criminals were involved.
b. Intent – if the person admits the act, but offers
an innocent explanation, intent evidence could
rebut that innocence (evidence of similar acts,
for example) – relatively lax standard.
c. Absence of Mistake – other crimes evidence
used to show that the act in question was not
inadvertent [e.g. Huddleston v. US,10 defendant
purchased stolen goods from seller but claimed
not to know they were stolen. Evidence that
defendant had previously purchased other stolen
goods from this seller was admissible.]
d. Common plan or scheme – evidence defendant
recently stole burglary tool is probative of
burglary or that defendant used a similar method
as the crime alleged
Victim’s Character6
1. Admissible in Homicide Cases – when defendant
claims self-defense, he may introduce evidence of
victim’s violent nature to show that the victim was
actually the aggressor. The prosecutor may then
introduce evidence of victim’s good character. Most
courts do not allow prosecutors to offer rebuttal
evidence of defendant’s reputation for violence to
show that he was the aggressor.
2. Methods of Proving Character – reputation and
opinion evidence is admissible to show character of
the defendant or victim. On cross examination,
inquiry is permitted into specific instances of past
conduct of victim.
7
Examples/Clarification: often how litigators try to sneak in
previous crimes evidence is by trying to convince the judge
that it is needed to prove an element of the current crime
8
see page 497
9
Examples/Clarification: while usually used by a prosecutor,
defendants in signature crimes sometimes use this technique to
show that someone else committed the crime.
10
page 497
Rationale: such evidence creates extreme prejudice – jury
may convict regardless of guilt in crime charged
6
FRE 404(a)(2)
5
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Evidence Outline
defect in product or design, or need for warning16
(Applied by a majority of courts to product liability)
Such evidence is admissible to:
a. prove ownership or control
b. prove defendant has destroyed or concealed
evidence [e.g. repairing fender to hide evidence
of collision]
c. rebut evidence of defendant’s witnesses on
safety of the condition (“there was no hazard”
with a later sign that says “beware, hazardous”)
d. to rebut a claim that all feasible safety measures
had been taken17
2. Settlement Offers or negotiations18 – offers to
compromise or compromises in settlement of a
disputed claim not admissible to prove liability for
or invalidity of claim or amount19 Conduct or
statements made during negotiations are also
excluded (it’s all my fault, I’ll pay you $5000 –
under FRE, all excluded). Such evidence is
admissible to:
a. prove bias or prejudice of a witness
b. negative contention of undue delay in presenting
a claim
c. prove obstruction of criminal prosecution
3. Offers to pay medical expenses20 - evidence that
defendant paid or appeared to pay plaintiff’s
medical bill is not admissible to prove liability for
the plaintiff’s injuries21 Unlike settlement
negotiations, conduct or statements accompanying
offers to pay medical expenses are admissible22
Habit
1. Routine reactions to regular responses as compared
to character evidence – quality of conduct
2. Habit is more specific than character evidence [e.g.
#1) habit: defendant walk to work on the same
streets every day and stops at the same stop sign
every day. #2) character: fact that defendant is
“careful” or “careless.” Can’t use drinking as
evidence to prove drunk on a specific occasion.
3. Rule:11 Habit or routine business practice is
admissible to prove conduct of person or
organization on a specific occasion conformed to the
habit or routine. Some states reject habit evidence or
allow it only where no eyewitnesses are available.12
4. Habit must be routinely performed without
deliberation13 [e.g. #1) evidence that mail is
routinely put in a certain stack to be picked up by
mail clerk and mailed by same is admissible to
prove a particular letter was picked up and mailed.
#2) Halloran v. Virginia,14 where testimony that an
auto mechanic regularly used an immersion heating
coil to heat a refrigerant in violation of warnings and
labels had been excluded. Held: testimony should
have been allowed. Such evidence of habit is
admissible to prove conformity on a specific
occasion, because “no one who has demonstrated a
consistent response is more likely to repeat that
response when the circumstances arise again.”]
Public Policy Exclusions / Pleas
FRE 407 (86), 408, 409, 410, 411
Society wants to encourage this behavior
16
Rationale: conduct is equally consistent with injury by mere
accident or through contributory negligence, and social policy
of encouraging people to make such repairs [FRE 407 note]
see also Flaminio v. Honda Motor Co, page 506, which
discusses the applicability of FRE rules to diversity cases, and
the interest the Congress has procedurally in preventing juries
from focussing on the wrong issue – remedial designs – and
hence
17
considered to be opening the door to this type of claim.
18
FRE 408
19
Rationale: Offers may be motivated by “desire for peace
and not from weakness of position” and public policy favors
settlement of disputes [FRE 408 note]
20
FRE 409
21
Rationale: payment may be made for humanitarian motives
and not admission of liability
22
Rationale: communication is essential to compromises so
they should be protected but statements regarding offers to pay
medical expenses are usually incidental [FRE 407 note]
Relevance Exceptions for Public Policy
1. Subsequent Remedial Measures:15 Evidence of
repairs following an injury to the plaintiff is
inadmissible to prove negligence, culpable conduct,
11
FRE 406
Rationale: some fear that habit evidence can consciously be
used to one’s advantage (you always do something at 6 and
hence there’s an alibi), it can easily be disregarded even well
established ones, and especially easy to fabricate.
13
Definition/More Info: Generally, has three qualities: a)
specificity, b) regularity, and c) degree of regularity
14
similar hypo – exploding can – on page 501
15
FRE 407
12
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Evidence Outline
4. Liability Insurance23 – evidence that one was or
was not insured against liability is inadmissible to
prove negligence or wrongdoing24 Admissible to
prove ownership or control and to show bias.
Rape30
1. Reputation or opinion of victim’s past sexual
behavior is not admissible in any civil or criminal
proceeding (Rape Shield Statute) If the probative
value of victim’s sexual behavior or predisposition
substantially outweighs the danger to the victim, it
may be admissible in a civil case – such as a sexual
harassment suit.
2. Admissible in criminal cases to show:
a. victim’s past sexual behavior with others to
prove whether defendant was or was not the
source of semen or injury31
b. victim’s past sexual behavior with defendant to
prove consent
c. when the Constitution requires that evidence be
admitted32
d. Above only admitted on motion with 15 days of
trial and offer of proof at hearing in chambers
Pleas and Related Statements
1. Withdrawn guilty pleas, pleas of nolo contendre,
offers to plead guilty or evidence of statements to
prosecute in making such pleas are not admissible in
any proceeding25
2. Admissible:
a. where another contemporaneous statement in
plea negotiations has been introduced
b. in subsequent perjury prosecution, false
statement made under oath, on record, and in
presence of counsel
c. to impeach inconsistent testimony [US v.
Mezzanatto]
Similar Sexual Assault Cases33
The addition of FRE 413-415 completely eviscerates the
“no showing of predisposition” for sex offenses.
1. Sexual Assault - evidence of defendant’s prior
commission of sexual assault admissible in a
criminal case to prove any matter to which it is
relevant
2. Similar child molestation cases34 - evidence of
defendant’s prior commission of child molestation
admissible in a criminal case to prove any matter to
which it is relevant
3. Similar acts in a civil case35 - evidence of
defendant’s prior commission of sexual assault
admissible in a civil case where a claim for relief is
based on one’s conduct of sexual abuse or child
molestation.
Documents and Records26
1. Must be authenticated27
2. Best Evidence Rule28
a. Original is required only when contents of
writing are at issue
b. copy admissible if original unavailable29
3. Not available on collateral matters
Types of Evidence: Sexual Assault / Rape
FRE 412 (99), 413 (106)
23
FRE 411
Rationale: knowledge of presence of or lack of liability
insurance would cause juries to decide on improper grounds
and prejudicial effect on defendant – whether defendant had
insurance or not does not tend to prove liability
25
Rationale: Prejudicial effect of the evidence would
outweigh the probative value of a withdrawn plea of guilt as an
admission Furthermore, pleading guilty may very well be a
response to a defendant’s analysis of the alternatives of a
punishment after trial – he’s choosing the better option, not
necessarily saying he did it.
26
Definition/More Info: Includes a) handwriting, b) voice
and telephone, c) photographs and X-Rays
27
FRE 401
28
FRE 1002
29
FRE 1003
24
Hearsay
30
FRE 412
FRE 412(b)(1)(A)
32
Examples/Clarification: See Olden v. Kentucky, page
474, where the court held that it was unconstitutional to
preclude sexual history evidence of victim’s incestuous
relationship with brother which may have been part of a bias
against father for stopping relationship.
33
FRE 413
34
FRE 414
35
FRE 415
31
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Abhijit Das, 1999
Evidence Outline
should be inadmissible hearsay on the issue of
whether the vessel was seaworthy41] and is
admissible both to show declarant’s state of mind
and truth of the matter asserted. Absence of
complaints or silence in a situation where such
conduct can be interpreted as a statement that
“everything’s ok” is admissible since no assertion is
intended. [e.g. people who are on a train but say
nothing about the extreme cold asserted by plaintiff]
2. Offered to prove the truth of the matter asserted
– when a statement is offered for another reason [i.e.
impact on listener] statement is not hearsay and is
admissible. Examples:
a. Verbal Acts – a statement that is itself a
legally operative fact because the fact that
those words were said means something
apart from their truth (including an offer to
contract) [e.g. #1) officers recounting of
prostitute’s offer to have sex not hearsay,
because its unimportant whether she
actually would. #2) statement “you’re a
dumb shit-head who’d steal from your own
mother” is not hearsay when offered as
proof of slander – truth of words
unimportant to the charge, #3) Husband in
Denver problem42 - lies are performative
words, hence not hearsay]
b. Verbal Part of Act – words that accompany
physical acts are not hearsay if they clarify
otherwise ambiguous acts [e.g. bob hands
the mayor money. Unclear if proper or a
bribe. Statement that “this is to repay your
loan last year” would be admissible as nonhearsay.]
c. Impact on listener – statement is not
hearsay and is admissible when offered to
show hearer’s state of mind in sense of
showing notice or knowledge or motive [e.g.
#1) third parties’ statement that floor was
wet admissible as proof that plaintiff had
notice of the condition, #2) statement by a
person, “I’m from the gas company” you
Admissible
Inadmissible
Basic Definition
FRE 801 (a-c) (178)
An out of court36 statement37 offered to prove the truth
of the matter asserted is inadmissible.
Policy reasons: adverse party is denied the opportunity
to cross examine, thereby violating the constitutional
right to confront.
Clark: Only hearsay when offered to prove what the
speaker was primarily trying to affirm or
communicate
1. Statement – oral or written assertion or non verbal
conduct intended as an assertion [e.g. #1) declarant
nods his head up and down, #2) robbery victim
picks a picture out from a series of mug shots and
hands it to the officer without saying a word is
hearsay because it’s the same as saying “that’s the
one”] non-assertive38 conduct is not hearsay [#1)
truck driver lurching forward at light39, #2) Wright
v. Doe d. Tatham,40 Baron Parke in invalidating the
admission of letters by persons who presumed they
were corresponding with a sane man, analogized:
fact that sea captain loaded his family on a ship
36
Definition/More Info: In-court testimony by a party to a
prior conversation that includes a one-sided conversation
intended to parse out the other party’s statement to avoid
hearsay is also inadmissible as hearsay, see United States v.
Check, page 132.
37
Definition/More Info: Must be by a human. “statements”
by machines – the reading of a clock or radar gun, which
would be inadmissible if made by a human declarant, are not
hearsay. Similarly, objects establishing a link between a person
and a place are not usually considered hearsay. [e.g. #1)
Eagle’s Rest Bar Problem, page 141 – matches in pocket
more like mud on shoes than a note that says “I’ve been to that
bar.” – verbal object exception, #2) Luggage with Clarke’s
card – also verbal object, might not be able to use as proof of
ownership, but definitely a strong connection., #3) Eagle’s
Rest Bar Problem #3, page 141, testimony “I pointed out the
couple to the police in the past” not hearsay because verbal
marker. *** CHECK THIS, #4) US v. Singer, p. 158, address
on envelope not hearsay because not being used to prove that
defendant lived there, only landlord’s behavior]
38
Definition/More Info: The assertion must be intended by
the person doing the conduct. Common law was different: any
statement that could be interpreted as an assertion. See US v.
Singer in footnote above.
39
page 121
40
England, 1837, page 121.
Examples/Clarification: The fact that the sea captain’s
actions are interpreted by an observer as an assertion that the
ship is seaworthy would not be enough to make this
inadmissible hearsay under the Federal Rules, hence this case
isn’t the modern law on the issue. Under FRE, therefore, the
letters probably would have been admitted.
42
page 160
41
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Abhijit Das, 1999
Evidence Outline
Statements Which Aren’t Hearsay45
believe that the person is from the gas
company and hence your following him is
more reasonable.]
d. Declarant’s state of mind – circumstantial
evidence of such kind is not hearsay because
not offered to prove matter asserted but that
declarant believed them to be true or what
the declarant knew [e.g. #1) “I’m the Queen
of England” not as proof of its truth but to
prove declarant’s insanity., #2) statement
that “I need to get my brakes fixed”
admissible to show D’s knowledge – not
that brakes were indeed bad, #3) Betts v.
Betts,43 “he killed my brother and he’ll kill
mommy too” not hearsay because not
offered to show that Ray killed her brother
but to show her mental state and fear at the
time, #4) Paper-Mache Man44 - a girl’s
description of the room where she was
previously raped – not hearsay because goes
to her knowledge. #5) Anna Sofer’s will:
like a public slap on the face – unlikely to
lie. Clarke: so darn reliable, we consider it
not hearsay]
FRE 801(d) (179)
Not hearsay if:
1. Prior Inconsistent46 Statement47 – made under
oath48, if it was made at a prior proceeding or
deposition, is admissible to both impeach credibility
and as substantive proof (for its truth).
2. Prior Consistent Statement – whether under oath
or not, offered to rebut an express or implied charge
of recent fabrication or improper influence or
motive on part of witness - hence admissible for its
truth [Tome v. US,49 statements must be made
before the motive arose to be admissible under
801(d)(1)(b)]
Clark: prior statement by a witness who is on the
stand should be admissible on the theory that the
person is available for cross now – even regards
to prior statements. He is opposed to the
traditional rule which doesn’t allow it.
3. Prior Statement of Identification50 – of a person
after perceiving him [e.g. photo ID or from a lineup
– because and ID closer to the event is presumably
more reliable]. This ID is not limited to
corroborative evidence, but can be used as a primary
source of ID [State v. Motta51]
Clark: Every hearsay problem can be broken down
as follows:
a) declarant did or said X
b) therefore Y is true
c) because _____________.
* is X isn’t an assertion, no hearsay.
* if X is an assertion, but no the same as Y, also
probably not hearsay.
45
Some consider these to be exceptions, but they are treated
by FRE as not hearsay at all.
46
Definition/More Info: Inconsistency seems to include
feigned and possibly truthful claims of failure to recall.
47
Definition/More Info: This is different than common law
where it was hearsay, though admissible to impeach
48
Definition/More Info: Threshold for oath seems to be any
proceeding with a notary present and under oath in State v.
Smith, 181, but Clark indicates this is not the standard and
most courts wouldn’t follow it. Statements made in agency
proceedings are admitted, however, under US v. CastroAyon, 186.
49
Examples/Clarification: page 193. – there are several
different readings of Tome: 1) only non-hearsay use is
statements made before motive, 2) if used for this purpose only
available if pre-motive and then can be used for truth, and 3)
may be admissible on many grounds, but substantive evidence
use only in rebuttal and if pre-motive. Casebook likes #3,
Clark not so much.
50
This is different than common law where it was hearsay
51
Examples/Clarification: page 206 - Which allowed both ID
and sketch drawn by a sketch artist to be introduced at trial. In
US v. Elmy it was held that a third party (like an officer) could
also testify to the ID. Perhaps the same concept as verbal
marker.
Examples:
a) “I’m alive, I’m alive”
b) he’s alive
c) dead people can’t speak – even if liar
Impeachment:
a) said X
b) therefore a liar
c) because now says not X
notice:
a) said X
b) therefore had notice of something
c) should’ve checked based on notice
43
44
Washington, 1970. page 171.
page 143
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Abhijit Das, 1999
Evidence Outline
remember, you can’t use the statement to
prove the matter asserted – that driver
worked for X if the statement is “I was
making a delivery for X” – independent
evidence of such employment/agency would
be required – but see Bourjaily]
d. Vicarious Admissions – statements made
by another party may be imputed to a party
based on certain relationships – also a
modern trend.57 There are limits, however.
[Bruton v. US,58 which held inadmissible
“the powerfully incriminating extrajudicial
statements of a codefendant, who [stood]
accused side-by-side with the defendant.”
e. Co-Conspirator Statements59 – Statements
made by one conspirator (1-co-venturer) are
admissible against other co-conspirators, so
long as the statement was made during the
course of the conspiracy (2-pendency)60, and
in furtherance of it (3-furtherance).61
[note: Bourjaily v. US62 eliminated the
independent evidence requirement in
holding that a trial judge, in making a FRE
104(a) factual determination, may use the
hearsay testimony itself as evidence of the
existence of a conspiracy63 without, or in
addition to, other independent evidence.64 A
4. Admission by Party Opponent52 – an out of court
statement or conduct by a party to the present
litigation that is used against him. Does not need to
be “against interest” of the person, can be an
opinion, and does not need to be a result of personal
knowledge. Statements overheard while declarant is
sleeping generally not allowed. [e.g. “the accident
was my fault” – an opinion made by the party
opponent, would get in.]
a. Civil pleadings (judicial admissions) –
admissions made in civil cases may bind
parties even if later amended.53 Most courts
provide limited protection for guilty pleas in
minor traffic infractions – allowing pleas to
avoid the costs of litigation.
b. Criminal pleadings – (a) nolo contendre
plea is inadmissible because it doesn’t admit
guilt, but (b) guilty plea is admissible in a
following criminal or civil case involving
the same act.
c. Authorized Statements54 – a statement by
an agent or person authorized by partyopponent is admissible as is a statement by
an agent while under the agency
relationship. Statements made between an
agent and a principal, once held
inadmissible, are increasingly admitted
because they are considered very reliable –
that view is codified by the FRE. [e.g. #1)
written and oral statements made by a
wildlife director to the wildlife president
after a wolf bit a child held admissible since
it was a statement made under the scope of
the agency – also, first hand knowledge was
not necessary when used against the party
that made the statement, see Mahlandt v.
Wild Canid Survival & Research
Center55, #2) Errand for Boss problem56 -
57
Definition/More Info: Common law used be that
statements themselves needed to be authorized, but FRE seems
to say that statements made while under an agency relationship
are generally admissible.
58
page 219
59
Rationale: FRE 801(d)(2)(E) – Consider the rationale –
conspirator comments such as those admitted can be
considered the verbal acts of a conspiracy.
60
Definition/More Info: A statement made after a
conspiracy has ended, is admissible only against the declarant
himself. What if the conspiracy included plans for after they
got caught? Courts usually don’t accept this, see Krulewitch
v. US, p. 261.
61
Examples/Clarification: Does not require the declarant to
be absent – because the context of the conspiracy cannot be
replicated, see US v. Inadi, page 248.
62
page 248
63
under the POE standard
64
Examples/Clarification: This rule effectively overruled US
v. Nixon and Glasser v. US, both pre-rules cases. The dissent
argued that the independent evidence rule was essential to
safeguard the reliability of these statements and 104(a) could
be read as consistent with FRE801(d)(2)(E)’.
52
Examples/Clarification: Treated differently because a)
unlike other exceptions, there’s no special reason to think
these comments are more reliable, and b) arguably this isn’t
hearsay – merely part of the litigation.
53
This excludes pleadings in the alternative: “even if I was
negligent, I am still not …” may not be used as evidence of
negligence.
54
FRE 801(d)(2)(C)-(E) The statement may be used against
both in suits against the individual or the party under whose
authority the statement was made.
55
Page 240
56
page 245
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Abhijit Das, 1999
Evidence Outline
f.
4. Inaccurate Perception – because of poor
perceptive ability [i.e. eyesight or hearing],
declarant’s statement was simply incorrect though
believed by declarant
5. Mistake in transmittal – mistake made by person
simply repeating the statements of another
circularity problem exists, but so does a
coincidence problem.65]
Adoptive Admissions66 – cases where A
explicitly or implicitly adopts B’s statement
as correct are admissible.67 [e.g. #1) Q:
“Were you speeding?” A: “Yes” – adopts
the question as part of the answer as both
being declarant’s statement; #2) US v.
Hoosier68, silence in the face of an
inculpatory statement where a denial is
expected from an innocent man, is
effectively an adoption of the statement and
admissible69 #3) consider insurance cases –
cases go both ways – whether death cert. is
an admission by beneficiary for purposes of
cause of death]
Benefits of Testimony; Contrast with Hearsay
1. Oath – fear of perjury and solemnity of occasion
increases truth potential. Hearsay = no oath.
2. Demeanor – Jurors can judge demeanor of witness.
Hearsay = no such opportunity.
3. Context – Statements in the contexts of a larger
story that jurors can evaluate for sincerity and
accuracy. Hearsay = no such context.
4. Cross Examination – Subject to adversary seeking
to uncover truth. Hearsay = no such opportunity.
Dangers of Hearsay
1. Ambiguity – what was asserted wasn’t really what
declarant meant to say due to language difficulties
or similar impediment
2. Insincerity – knowing statement intentionally
misleading for ulterior motive
3. Incorrect Memory – honest belief but faulty
memory or confusion with another similar fact or
issue
Admissible
Inadmissible
Hearsay Exceptions (Declarant  Unavailable)
FRE 803 (191)
1. Present Sense Impression – statement describing
or explaining an event while declarant was
perceiving the event or immediately thereafter
a. does not have to be startling or exciting
b. includes cases where a witness makes an
accident or crime report shortly after it
c. safeguard – statement is free from memory
deficits and there is no time for calculated
reflections
2. Excited Utterance70 – statement made about a
startling event while under the stress of excitement
is admissible71, but the event must produce shock or
excitement and the scope must be relate to the event.
[see US v. Iron Shell, below – some lapse of time
(45 minutes) and response to inquiry (“what
happened?”) doesn’t necessarily destroy exception]
65
Examples/Clarification: The judge could let the testimony
in based on his FRE104 determination that a conspiracy
existed and the statement isn’t hearsay, while the jury could
find that no hearsay existed, but rather some negligence. How
about treating the evidence under FRE104(b) and let the jury
decide if its relevant?
66
FRE 801(d)(2)(B)
67
Examples/Clarification: Generally, party needs to have a)
heard the statement, b) understood it, c) not have been under
confusion or duress, d) been called upon to deny the statement
if untrue
68
page 227
69
Examples/Clarification: This is not the case where
declarant was in custody and had been told that anything he
said could be used against him – there, silence is
understandable – see Doyle v. Ohio, page 230, because that
would invalidate Miranda. However, pre-arrest custodial
questioning is different under Jenkins v. Anderson, page 234.
Where police aren’t present, and statements are made that an
innocent person is expected to rebut, the adoption by silence
theory applies per US v. Alker. My thoughts: I wonder how
sensible this policy is – there are bragging rights that such a
statement might carry that might question its credibility.
70
FRE 803(2)
Rationale: Based on the theory that a person’s reflective
faculties are stilled and memory is not a problem. Generally
limited to a half-hour from the occurrence as a limit to how
long you can wait – some exceptions for medical necessity or
coma, etc.
71
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Hillmon78 - letters stating intention to travel to
Colorado admissible as proof of intention to go,
because the letters increased the probability that
he did in fact go to Colorado; #2) where
declarant states an intent and is the murder
victim, like US v. Pheaster79, that declarant’s
stated intent to meet defendant80 would be
admissible under common law to support
inference that defendant was there81; #3) even
where he statement includes some backward
looking statement (“I just got a call from D
asking for money which I intend to send”), if the
thrust of the statement is forward looking, the
entire statement will be admitted, under US v.
Annunziato82]
e. statements as to past state of mind are
generally not admissible. [e.g. #1) “I didn’t
mean to kill him” in a murder case; #2) for
present statements based on past actions, like
Shepard v. US83, court will not admit
statements such as “Dr. Shepard has poisoned
me” because it was backward facing, not
forward facing like Pheaster or Hillmon]
exception for cases dealing with the execution
or revocation of wills where statements by
testator before and after execution of will are
admissible
4. Statement for Medical Diagnosis or Treatment –
statements made to medical personnel which are
reasonably pertinent to diagnosis or treatment are
admissible84
a. including both past and present statements
b. FRE allows statements of the cause or source of
the condition closely related to medical
diagnosis and treatment to be admitted even by a
Clark: maybe this is a case where a hard case made
bad law – stretched too far, perhaps. Also, think
about the wife abuser situation – wife: “he’s
going to kill me” based on years of abuse – not
the first time you’ve thought about it – hence no
guarantee of non-reflective response72
a. no requirement of unavailability, competency,
or identification of the declarant
3. Then Existing Mental or Physical Condition73–
statement of declarant’s then existing state of mind,
emotion, sensation, or physical condition (intent,
plan, motive, pain, health, etc.) may be used to
prove existence of that condition or to prove
probable future conduct consistent with the intent
[see Nuttall v. Reading Co.74]
a. statement of past memory or belief to prove
the fact remember is not admissible unless
related to declarant’s will.
b. Present physical condition – when one’s
physical condition at certain time is in issue,
statements made at that time are admissible to
prove that condition. [e.g. plaintiff’s statement
at accident that he is in pain are admissible to
prove he was in fact in pain75 but a person’s
statement that “my leg must be broken” would
not be admissible for uninformed opinion
because of the opinion stated]
c. Statement of past conditions – generally
excluded [e.g. last friday I was in pain76]
d. statements of present intent to prove
subsequent behavior are admissible [e.g. #1) “I
intend to go to X admissible to show probability
he went there77” see Mutual Life Ins. Co. v.
72
Examples/Clarification: statements that are clearly self
serving, such as “I carefully stopped at the sign” may be
suspect.
73
FRE 808(3)
74
page 264, husband’s statement that he was feeling ill
admissible to prove that point
75
Rationale: Perhaps based on the theory that statements
contemporaneous with symptoms are more reliable than
present testimony based on recollection
76
Rationale: on the theory that there’s no way to cross
examine and greater likelihood of falsification
77
Examples/Clarification: modern view also allows such a
statement, if including the intent to accompany another person,
to support the inference that such action was taken with the
other person a that the other person did that thing with
declarant
78
page 282
Examples/Clarification: page 286 – see also People v.
Alcade, p. 288 – “I’m going out with Frank tonight”
admissible as evidence that see did so in a murder trial against
Frank.
80
Examples/Clarification: especially forceful if there is
independent evidence that declarant actually did the things he
claimed – even if independent of the other named person
81
FRE803(3) may limit this doctrine, though – see House
Judiciary notes
82
page 293
83
page 292
84
FRE 803(4) – based on the theory that people don’t usually
lie about symptoms to their doctors
79
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Abhijit Das, 1999
Evidence Outline
third person.85 [see US v. Iron Shell86 in which
a little girl told her doctor about a man trying to
put something in her vagina – because the
statements related to the doctor’s inquiry as to
what happened so that he could treat her
condition – not an inquiry into who did it, etc.]
Factual statements of other circumstances
surrounding the event are inadmissible.87
the regular practice to make the record, is
admissible.95 Testimony must be:
a. provided by someone who can provide a
foundation for the records such as a
“custodian” of the records.
b. free from self-serving influences (such as the
accident report written by one party after an
accident) [like Palmer v. Hoffman96 where the
court held inadmissible a railroad’s accident
report because of lack of regularity – most
courts would probably now hold it inadmissible
for self serving reasons]
c. for medical records: statement made by a
hospital doctor or administrator. a statement
made to a doctor by a patient97 cannot be used
later to prove the matter asserted by the patient.
[see Petrocelli v. Gallison98]
7. Absence of Entry in Business Records99 –
absences may usually be admissible since the failure
to record a transaction is rarely an assertion.
Generally, the same requirements apply as to the
regularity of the records.
8. Public Records & Reports100- records, statements
and reports, prepared by a public official are
admissible101 if:
a. prepared by public employee within scope of
duty
b. made at or near the time of the event
c. police reports102 inadmissible in criminal cases
5. Recorded Recollection88 – memorandum or record
on matter about which witness once had first hand
knowledge89, but now has insufficient recollection
may be read into evidence.90 Document must have
been prepared or adopted by the witness, and the
witness must have vouched for its accuracy at the
time it was recorded.91 [See Ohio v. Scott92]
a. this is different than FRE 612 “Present
Recollection Refreshed” – because, there, the
only thing going into the record is the testimony,
not the device used to refresh the witness
testimony.
6. Business Records Exception93 – a writing, record
or memorandum of any act, transaction, occurrence,
if made in the regular course of business94 and it was
personal knowledge of the matter recorded. “business” can
mean association, or institution of many kinds.
95
Rationale: business incentive to keep accurate records – no
motivation to file. it would also be too cumbersome to bring in
everybody that may have contributed to the records.
96
page 325
97
Examples/Clarification: courts are also reluctant to admit
opinions made by doctors in such reports that doctors could
otherwise make in live testimony
98
page 316
99
FRE 803(7)
100
Definition/More Info: FRE 803(8) various parts: (a)
activities of the office, (b) matters observed by public officials
and (c) factual findings from official investigations unless
untrustworthy
101
Examples/Clarification: as opposed to the business
records exception above, public records are self-authenticating
if certification procedures are used.
102
Examples/Clarification: statements excluded are those
made by police and other law enforcement personnel. In US v.
Oates, a full-time chemist for the Customs Service was held to
fall under the category of “other law enforcement” personnel.
85
Definition/More Info: if the person whose condition is
being discussed is unconscious, for example – often called the
“Good Samaritan” doctrine
86
page 269 and 298
87
Examples/Clarification: so in the Iron Shell example, a
statement about who raped the girl to the doctor may not be
admissible.
88
FRE 803(5)
89
the knowledge also had to have been made “fresh”
90
Rationale: theory being that statements made fresh in mind
are more reliable than statements made on the stand.
91
the person must be available to testify to having made the
recording.
92
page 306
93
FRE 803(6)
94
Examples/Clarification: and in a timely manner, near the
point in time when the event occurred by someone with
11
Abhijit Das, 1999
Evidence Outline
d. in civil cases, factual findings (including
opinions and conclusions) are admissible.
e. not untrustworthy [see Baker v. Elcona Homes
Corp.103 – where the factors for trustworthiness
were applied: 1. timeliness, 2. skill or
experience, 3. whether a hearing was held, and
4. motivation problems (Palmer v. Hoffman)
and the court determined that the report was
trustworthy]
9. Treatises104 - in direct testimony, parts of written
treatises can be read into testimony, though they may
not be included as exhibits. in cross examination,
treatises may be used against an expert even if the expert
refuses to accept the authoritativeness of the treatise.
The court also held that such material is not to be admitted
under any other evidence rules and was absolutely
inadmissible.
103
page 328
104
FRE 803(18)
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Abhijit Das, 1999
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a. party against whom testimony is now being
offered was a party to former suit and had
opportunity and some motive111 to cross
examine112 as adverse party in present
proceeding, or
b. in a civil action113, a predecessor114 with similar
interests had an opportunity to cross examine
2. Dying Declarations115 – in a homicide
prosecution116, or in a civil action, a statement made
by unavailable declarant while believing his death is
imminent117 that concerns the cause or
circumstances of what he believed to be his
Admissible
Inadmissible
Policy – for Exceptions (Declarant = Unavailable)
A group of hearsay exceptions are available only when a
declarant is unavailable for two primary reasons:
1. Trustworthiness – special guarantees which make
up for the inability to cross examine
2. Necessity – need for hearsay evidence, usually
caused by the unavailability of the declarant
“Unavailable” when the declarant:
1. Exempt due to privilege
2. refuses to testify
3. testifies to lack of memory of subject matter of
statement105
4. physically unavailable (death, physical or mental
illness106)
5. is absent107 or cannot be subpoenaed (out of
country)108
110
Examples/Clarification: the former testimony must have
been given under oath or sworn affirmation and subject to
cross examination – prior trial, preliminary hearing, grand jury
investigation (is used by the defense only – never by
prosecution), suppression hearing or deposition. affidavits and
statements made to police are not admissible.
111
Examples/Clarification: motive can be different, if, for
example, the amounts in question are very different – prior suit
was small, the second much larger. The Supreme Court seems
to construe this requirement strictly for defense requests. See
US v. Salerno, 368, where the Court held that unless the
defense could argue that the prosecution had a motive when it
cross-examined individuals for grand jury testimony, it could
not introduce the exculpatory evidence on lack of similar
motive grounds. The witnesses had not been offered “use
immunity” by the government for their testimony, and were
thus unavailable to testify.
112
Examples/Clarification: there is no requirement that
actual cross examination have occurred, though if the
defendant had no counsel, it may be judged that he had no
reasonable opportunity to cross examine.
113
this is strictly civil – no criminal cases allowed
114
see Lloyd v. American Export Lines, Inc., page 293,
where testimony from a coast guard hearing regarding a fight
two ship crewmembers had was held admissible in a
subsequent suit brought by one of the combatants against the
shipping company. the “nucleus of operative facts,” the
conduct of the combatants, was the same and “there was a
sufficient community of interest shared by the Coast Guard in
its hearing and Alvarez in the subsequent civil trial” – they
both sought to establish Lloyd’s wrongdoing. this holding,
followed by many courts, minimizes the importance of the
predecessor in interest requirement.
115
FRE 804(b)(2)
116
unavailable in a non-homicide cases, though under common
law, it wasn’t available for civil cases either.
117
this may be shown through statements made by the
declarant, or his knowledge of the severity of his wounds
Hearsay Exceptions (Declarant = Unavailable)
FRE 804(b) (221)
1. Former testimony109 – by a now unavailable
witness at another hearing or in deposition110 is
admissible in a subsequent trial if:
105
Examples/Clarification: see US v. DiCaro, page 347,
where a witness was held to be “subject to cross examination”
for FRE 801(d)(1)(A) – prior inconsistent testimony –
purposes but unavailable for 804(a)(3) purposes because he
remembered making the statement but not the underlying
events.
106
a minor illness will not do – for which an adjournment
would be more appropriate
107
Examples/Clarification: for criminal cases, where
confrontation clause issues arise, the state must show that
attendance could not be procured by other means. See Barber
v. Page, page 352, which held that in a state prosecution,
where a prisoner was in a federal prison in another state he
wasn’t unavailable because procedures where available which
would have allowed him to testify. But see Mancusi v.
Stubbs, page 356, which held witness was unavailable where
it found he was living in Sweden and the prosecutor made no
effort to procure his attendance.
108
Examples/Clarification: the federal rules are stricter than
state rules when a witness is absent. the person seeking to offer
the testimony must show that the declarant cannot be
persuaded to appear and that efforts to take a deposition were
unsuccessful.
109
FRE 804(b)(1)
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Abhijit Das, 1999
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impending death118 Under common law, death was
required – not under FRE, where declarant may be
unavailable on other grounds.
3. Statements Against Interest119 - statements which,
when made,120 was against declarant’s121 pecuniary
or proprietary interest122 or tended to subject
declarant to civil or criminal liability such that a
reasonable person would not have made it unless he
believed it to be true.123 However, statements which
subject the declarant to criminal liability124 and
are offered to exculpate the accused are not
admissible125 unless corroborating circumstances
clearly indicate the trustworthiness of the
statement.126
Witnesses
Competency and Personal Knowledge
FRE 601 (119), 602 (121), 603 (122)
Competency Assumed127
Every witness is presumed competent to testify. The
district judge does retain the power to order a mental
evaluation.128 Children are also able to testify.129 Three
reasons why they may be incompetent:
1. lack of personal knowledge
2. failure/refusal to take oath130
3. lack of capacity to recall
the rationale for this rule being more religious than legal –
the “dying declarant, knowing he is about to die, would be
unwilling to go to his Maker with a lie on his lips.” Does this
rationale stand up to modern views of hell, etc? are you much
more likely to make such a statement in the hopes of getting
revenge, or self-exoneration than you are to speak truthfully
for fear of god?
119
FRE 804(b)(3)
120
on the theory that if the person doesn’t know its against
interest, then the reliability factor goes down
121
unlike an admission, the declarant whose statement is
admitted need not be a party to the litigation.
122
declarant must have had actual knowledge of the facts and
have known that the statement was against interest
123
Also incorporates one-way interests: a tax return to prove
that the person made at least that much – theory that you
would never overstate your income: where the interest of the
declarant is to aim high, use the number as the maximum.
Conversely, where the interest is to aim low, use the number as
a minimum. Courts are mixed on the application of conclusory
remarks, such as “it wasn’t your fault” right after an accident.
See Carpenter v. Davis, where the court allowed in a portion
of the statement, “you pulled right in front of me” – “I know”
but it excluded, “it’s not your fault.” Perhaps this should have
been attempted as a party admission – which would allowed
even the opinion portion (though the court ruled the wife
wasn’t a party to husband’s suit).
124
Definition/More Info: but where a statement is part
against a declarant’s interest, but part neutral or self serving,
the collateral statements are simply not admissible under
FRE804(b)(3) according to the Supreme Court in Williamson
v. U.S., page 377. the fact that a person is making a partly
inculpatory statement doesn’t increase the reliability of the
non-self inculpatory portion. (in fact, there’s a fear that the
declarant may be trying to curry favor with the authorities by
“bringing in the big fish” etc.)
125
under the traditional approach, they weren’t admissible –
see Justice Holmes’ dissent in Donnelly v. US, page 376,
protesting the reason behind excluding this evidence while
allowing dying declarations.
118
Personal Knowledge Required131
An ordinary, non-expert witness, must limit his
testimony to facts of which he has first-hand
knowledge.132 Difference from hearsay: if it appears on
its face that the testimony is a repetition of what
someone else said, then its hearsay. If the witness claims
to have personal knowledge but contexts supports the
contention that he couldn’t have seen it, then it is void
for lack of personal knowledge.
Oath133
What does the requirement do?
Rationale: we don’t want people confessing to get others
off the hook. However, with corroboration, the situation is
different, where a reasonable person can infer from the
corroborating evidence that the declarant, not the defendant
could have committed the crime.
127
FRE 601
128
page 529
129
See Ricketts v. Delaware, page 532, where a six year old
was allowed to testify after a statement to the effect that “lies
are bad” and a promise to tell the truth. Sufficient under 601
for competency and 603 for oath. Some states do not presume
competency for children.
130
See United States v. Fowler, page 530, where defendant
refused to take the oath “I state that I will tell the truth in my
testimony” but offered alternatives such as “I am a truthful
man” – held insufficient under FRE 603.
131
FRE 602
132
See Mahlandt which held that first-hand knowledge is not
required when a statement is to be used against the party that
made the statement.
133
FRE 603
126
14
Abhijit Das, 1999
Evidence Outline
1. impress upon witness solemnity of duty
2. ensure witness is paying attention and will
articulate clearly
3. awaken conscience – express willingness to
pay for lie
Hypnosis in the Courtroom
1. Testimony by witnesses after hypnotic
refreshment – most courts will exclude such
statements because of lack of safeguards though
some courts will allow such testimony after
stringent safeguards including videotaping and
documentation.
2. Defendant has a right to testify, even after
hypnosis – whatever burdens courts place on third
party testimony, the Supreme Court has held, in
Rock v. Arkansas,139 that though states have some
right to guard against unreliable hypnotized
testimony, a per se ban on all hypnotically refreshed
testimony is unconstitutional. Especially where posthypnosis testimony was corroborated, it should
have been admissible. Procedural safeguards which
should be employed:
a. hypnosis only by psychologist or psychiatrist
b. neutral setting
c. videotaped or recorded
Dead Man Statutes134
A survivor from common-law, dead man’s statutes
attempt to “equalize the opportunities of proof in
litigation involving a decedent and survivor where the
subject matter of the suit is a transaction or event that
occurred when both were living.”
1. Extreme – prevent the survivor from testifying at all
about the transaction between him and the decedent.
Oral agreement, for example, will not be permissible
without evidence beyond survivor’s testimony to its
existence
2. More liberal – less draconian versions allow the
survivor to testify but equalize the advantage by
allowing the decedent’s estate to introduce hearsay
statements by the decedent.
3. Federal Rules – there is no federal Dead Man’s
Statute, but a court sitting in diversity must apply
the state statute under FRE 601.
Opinion Testimony and Scientific Evidence
FRE 701 (161), 702(162), 704 (165), 705 (167)
Lay Witnesses140
1. Generally inadmissible
2. Admissible as to common sense impression such as
appearance, state of emotion, intoxication, speed of
vehicle, and testimony helpful in resolving issues141
Expert Witnesses142
1. Generally admissible where scientific, technical, or
other specialized knowledge will help the trier of
fact to: understand the evidence or determine a fact
in issue. Does not necessarily have to testify to
something beyond jury’s knowledge – just has to
provide a refined understanding. Judge has ultimate
discretion.143
2. Expert may be qualified by:
a. knowledge
b. skill
Testimony by Jurors135
1. Testimony Prohibited before the same panel on
which she sits
2. Pre-Verdict Questioning136 - regarding failure to
follow instructions (reading a newspaper) is allowed
while the trial is in progress
3. Post-Verdict Questioning137 – jurors can be asked
questions about their jury service – not about
deliberations – but about whether improper evidence
(extraneous prejudicial information) was available
a. key: external/internal distinction
b. Drug and alcohol use by the jury while hearing
testimony and under deliberation is internal, and
hence not subject to questioning.138
134
page 543
FRE 606
136
FRE 606(a)
137
FRE 606(b)
138
see Tanner v. United States, page 553, which involved an
affidavit from a juror regarding such abuses during the trial.
The Supreme Court held that the affidavit was not a valid basis
for a post-verdict evidentiary hearing into the validity of the
verdict. see also Advisory Committee Notes, page 126,
talking about reasons for questioning jurors – almost every
“internal” factor is out.
page 535 – defendant shot her husband in the chest. She
cannot remember all of the events. After hypnosis, defendant
remembered that her finger was not on the trigger but rather
that the gun fired when her husband grabbed her arm. A gun
expert corroborated with testimony that the design of the gun
was defective allowing such accidental shooting.
140
FRE 701
141
see examples on page 690
142
FRE 702
143
FRE 104(a)
135
139
15
Abhijit Das, 1999
Evidence Outline
c. experience
d. training
e. education
h. credentials of the scientists
3. Appellate Daubert Standard – under GE v.
Joiner,147 the appellate standard for Daubert is
abuse of discretion by the trial judge as gatekeeper –
not an overly stringent review.148
Clark: remember, an expert needs no formal
education. could be tons of experience a.k.a. My
Cousin Vinny – Marissa’s automobile testimony
Clark: Though Daubert appears at first to liberalize
admissibility, it is enormously anti-plaintiff.
Instead of a head count, the judge now has any
factors to consider – many more places along the
way to eliminate new emerging sciences. It has
been especially difficult to get in toxic tort cases
because of expert testimony inadmissibility.
144
3. Bases of Expert Testimony: The facts or data
upon which an expert bases an opinion may be those
perceived by or made known to the expert and need
not be admissible in evidence if: they are of a type
reasonably relied upon by experts in the particular
field.145 Hence, there is a body of evidence that an
expert can rely upon but the trier may not.
4. Opinion on ultimate issue is admissible, including
defendant’s state of mind at time of trial
a. exception: opinion on criminal defendant’s state
of mind at time of crime
5. Opinion admissible without first testifying to
underlying facts or data unless required by court
Scientific Evidence
1. The Frye Standard – under Frye, only “generally
accepted” scientific evidence could be admitted.
2. The Daubert Standard – in rejecting Frye, the
Supreme Court in Daubert v. Merrell Dow
Pharmaceuticals146 established a new standard
focussed upon “reliability.” Under the new standard,
in order to be admissible, scientific evidence must:
a. be derived by scientific method and be valid
b. fit at least one issue in the case, and therefore be
relevant to the task at hand.
c. the above determinations are for the court under
FRE 104(a)
In determining whether the evidence qualifies as
scientific, the court will consider the following
factors:
a. whether methodology can be applied to the facts
in this case
b. whether the method has been and can be tested
c. whether the method has been subject to peer
review and is published
d. rate of error for the method
e. whether method was designed independent of
the litigation
f. operational standards regarding the method
g. general acceptance
4. Syndrome evidence: some courts apply Daubert to
syndrome evidence – but most fail the test. The
names of syndromes, like Battered Wife Syndrome,
are not usually allowed so as to prevent undue
prejudice.149
5. DNA Evidence – satisfies the Daubert standard
under State v. Moore.150 What should trial judges
do with the application of an otherwise accepted
method in a particular case? should the judge
decide, or is that a question of fact for the jury?
Impeachment of Witnesses
FRE 607 (129), 608 (130), 609 (134), 613 (156), 801
(178)
Impeaching Credibility
There are six ways to impeach the credibility of a
witness:
1. Prior Inconsistent Statement151
147
supplement page 397
Examples/Clarification: Can be read to emphasize the antiadmissibility bent of Daubert, because decisions to exclude
scientific evidence are not subject to a searching review. my
opinion: Is there any reason to believe that trial judges, and
more than appellate courts are better prepared to answer these
questions? perhaps we just want to draw a line and have it
done with earlier.
149
Rationale: syndrome evidence is allowed into the
courtroom to equalize misconceptions about abusive
situations. The jury'’ background information should be
corrected, or they might let incorrect assumptions distort their
evaluations of the facts.
150
page 741
151
FRE 613 – note that this really applies to non-parties only
since a prior inconsistent statement is substantively admissible
as an admission (does not get tossed as hearsay)
148
144
FRE 703
see examples on page 698
146
page 717
145
16
Abhijit Das, 1999
Evidence Outline
a. witness must first have opportunity to explain or
deny only with extrinsic impeachment (laying
the foundation)152
b. extrinsic evidence regarding material153 issues
only; no extrinsic impeachment on collateral
issues (can highlight the inconsistency, but can’t
introduce other evidence to hammer it home)
c. may not be used as a subterfuge to get
otherwise inadmissible testimony in – under
FRE 607 – by impeaching your own witness.
[e.g. #1) you can’t ask a witness a question you
know he will get wrong in order to bring in the
prior statement; #2) it is OK, however, if you
call the witness in good faith not knowing what
he will say – see Webster154]
d. May include statements obtained in violation
of Miranda unless under coercion or
involuntary. [see Harris v. New York155 for one
that was admissible, or Portash 156 for an
example of where statements under a grant of
immunity are not useable to impeach.] Possible
to avoid the prior statement if that portion of
your testimony is in accordance with the
defective confession.
2. Bias evidence is always allowed and is never
collateral. This can take the form of a witness’
friendly feeling to one of the parties, hostility to
one of the parties, or self interest in the outcome.
a. membership in group: bias may be shown by
demonstrating that the witness belongs to a
particular group and subscribes to its beliefs.
Extrinsic evidence may be used only if bias is
denied. [see United States v. Abel,157 Supreme
Court held that: prosecution entitled to show
that a defense witness was a member of a secret
prison organization which had a creed requiring
members to lie to protect each other. Common
membership in an organization, even absent
proof of personal adoption is certainly probative
of bias, according to the court.]
i. court may limit how much you can say
about the group to limit prejudice (i.e. not
allowing the name “Aryan Brotherhood)
b. paid witnesses: clearly a proper issue to bring
up. [e.g. “Will you tell us, sir, what hourly rate
you charge for testifying in cases such as this
one?”]
c. confrontation clause – courts have held that
constitutional issues (due process) may arise
upon denial of a defendant’s right to impeach
the credibility of a witness [see Olden v.
Kentucky and Davis v. Alaska]158
3. Defect in Sensory of Mental Capacity – Attacking
party may try to demonstrate that witness was under
the influence of drugs or alcohol,159 or that witness
is mentally impaired.160 Proof of mental illness can
be made through the introduction of medical records
and psychiatric testimony.161
4. Character for Untruthfulness - in addition to
cross, may be introduced on direct as well under
607.
a) specific instances of conduct (which did not
result in conviction)162 – allowed at the
discretion of the court if probative of
truthfulness.163 No extrinsic evidence allowed.
Hence, if you ask “Isn’t it true that you…?” and
the witness denies it, you’re stuck.
b) instances of crimes involving dishonesty or
false statement 164 Trial judges usually lack
discretion to disallow this type of evidence.
158
page 585
though perhaps most courts may not allow proof of habitual
impairment or alcoholism as proof of impairment at the
particular time.
160
Cross examination should be aimed at illness within the
time period the witness is testifying about and should not be
aimed to stigmatize the witness.
161
See United States v. Lopez, page 597, for information
regarding trial court discretion in requiring a witness to
undergo psychiatric or mental evaluation.
162
FRE 608(b)
163
Examples/Clarification: Usually must usually directly
involve truthfulness – theft, for example, is debatable.
Questions about drug use, violence, or sexual relationships are
disapproved, though potentially useful to show bias. Some
jurisdictions do allow bad conduct unrelated to truthfulness.
164
FRE 609(a)(2)
159
152
FRE 613(b)
Examples/Clarification: For example, if the testimony
varies only slightly from the record, or the fact is a minor one,
extrinsic evidence is not allowed. Keep in mind, however,
some evidence that may be excluded here could be introduced
as bias evidence, etc.
154
page 636
155
page 639
156
page 646
157
page 586
153
17
Abhijit Das, 1999
Evidence Outline
5. Opinion or Reputation – witness credibility may
be attacked or supported based on reputation or
opinion evidence given by a character witness.
Testimony must refer only to character for
truthfulness or untruthfulness and must be preceded
by a foundation – asserting personal knowledge of
the witness or his community. Evidence of
truthfulness may be introduced only if original
witness’ truthfulness attacked and may include
specific instances of truthfulness.169
6. Contradicting Testimony – only evidence that has
relevance independent of its contradicting effect
gets in,170 either through cross examination or
extrinsic evidence. [FRE 608(b) does not apply to
this category – only covers untruthful disposition
impeachment, However, 608 and rape shield laws
both trump the general right to contradict]
a. Counterproof that contradicts but also proves
a substantive point admissible
b. Counterproof that tends to prove another
impeaching point admissible171
c. Counterproof which only contradicts is usually
excluded as collateral
d. prosecution may ask questions on direct, the
cross-examination of which can open up the
introduction of otherwise inadmissible evidence
to impeach. [see US v. Havens172 where
illegally seized evidence that had been excluded
as inadmissible was held admissible for use by
the prosecutor in rebuttal to answers in response
to questions asked by the prosecutor during his
cross examination – a.k.a. opening his own
door]
7. Forbidden Attacks: impeachment based on
religion, beliefs, or opinions
c) other crimes by a witness other than the
accused165 – if punishable by death or 1+ year, if
it passes muster under 403 (prejudicial impact
doesn’t outweigh probative value)
i. if the witness has lied about the prior
conviction in the past, you may be able
to get the conviction in under 608, even
though it would not have been
admissible under 609
d) defendant’s prior conviction – evidence of a
defendant’s prior conviction may be introduced
to impeach if the probative value outweighs (not
substantially) prejudicial impact to defendant.
Factors employed include:
i. nature of conviction
ii. recency or remoteness
iii. whether similar to charged offense
iv. whether defendant’s record is clean
v. importance of credibility issues
vi. importance of getting defendant’s
testimony
e) Inadmissible convictions166
i. more than 10 years elapsed – unless by
special notice of intent to use and the
interests of justice require its use
ii. juvenile adjudications
iii. witness has been pardoned and no
subsequent conviction in excess of one year
f) Judge’s Evaluation – a judge may inquire into
the factual background leading to the prior
conviction, but need not do so in determining
admissibility. [See Lipscomb167]
g) Preserving appeal – to raise and reserve for
review the claim of improper impeachment, the
defendant must testify. [See Luce168] States may
still allow defense appeals from adverse rulings
in limine.
h) Limits – impeaching party is allowed to bring in
the fact of the conviction, date, and type but not
the underlying details.
Rehabilitation of Witnesses
FRE 608 (130)
169
FRE 608(a)(2)
generally viewed as a result of judicial discretion in FRE
403.
171
Examples/Clarification: when otherwise excludable
testimony gets in to contradict a witness, usually the testimony
being contradicted could itself have been excluded: e.g.
testimony by D, “I’m a good driver” could be excluded by
objection because it’s character evidence. But P won’t object,
because it lets him bring in evidence of other accidents as
counterproof.
172
page 661
Clark: thinks that you should not be able to skirt 609
and bring in the gory details under 608, but there
seems to be no case law.
170
165
FRE 609(a)(1)
FRE 609
167
page 614
168
page 625
166
18
Abhijit Das, 1999
Evidence Outline
Privileges
Basic Principles
1. You can’t repair until attacked. 173But you can
bring out damaging information on direct so as to
defuse:
a. expert fees
b. prior convictions
c. plea bargains
2. Repair must meet attack: only fairly direct
responsible is allowed, hence, a statement
supporting the general veracity of a witness will not
be allowed to answer an attack on a specific
statement.
Ways to Repair…
1. Redirect examination of witness: an attempt to
explain away any aspersions cast upon his veracity
2. Cross examine negative witnesses: in an effort to
refute point suggested during the attack
3. Positive character witnesses:
a. testimony of character witnesses as to good
reputation for truth of primary witness [see US
v. Medical Therapy Sciences174]
b. generally, we don’t like expert witnesses
testifying as to whether someone is telling the
truth, but they can support the plausibility of the
testimony.
4. Prior Consistent Testimony: to rebut charges of
recently fabricated testimony175
a. should predate alleged fabrication or motive
[Tome v. US]
b. since it is a non-hearsay use, doesn’t have to
meet requirements of FRE 801(d)(1)(B) – only
needs to do so if you wish to use it as
substantive proof.
5. Court retains the discretion to limit embarrassment
of witnesses176
FRE 501 (113), 502 (299), 503 (300), 504 (306)
State & Common Law
1. Based on societal desires to encourage particular
relationships, and therefore unlike other rules of
evidence.177
a. FRE has no specific privilege provisions178
except for FRE 501
b. in diversity cases, governed by state law and
privilege rules, in federal question cases,
governed by federal common law – not bound
by the state in which the court sits.
c. there must be a confidential communication for
the privilege to apply
d. person who holds privilege may waive it by
consent
a. disclosure to a third party can constitute
waiver
e. Eavesdroppers – as long as the privilege holder
was not negligent, there is no waiver, and
eavesdropper may not testify which is different
than the common law rule.
Attorney-Client179
1. Client holds privilege to refuse to disclose and to
prevent anyone else (including lawyer) from
disclosing a confidential communication180
between attorney and client181 during legal
services182 An attorney’s waiver is invalid without
client’s consent.
177
Examples/Clarification: the privileges are often aimed at
obstructing the free flow of information. the other rules of
evidence are generally viewed as tools to ensure more
accurate adjudication. To this end, see Bentham, on page
868 which says the privilege is only for protecting the guilty.
Counter arguments: a) even innocent people need
representation to protect their rights and may not want to spill
their privacy to do so, b) we live in a complex society – need
help to conform to the law.
178
they were approved by the Supreme Court but rejected by
Congress. Proposed FRE 502-510
179
PFRE 502
180
Examples/Clarification: the communication must have
been made to an attorney (which includes secretaries,
paralegals, etc under US v. Kovel, 882). and applies to
consultations, even where the attorney is not retained
181
client can be a corporation as well as an individual
182
Examples/Clarification: services performed by lawyers are
not always privileged. If lawyer performs other services,
accounting, investigator, shipping agent, etc. those activities
are usually not covered unless the legal component is great.
see page 872
Leading Questions
FRE 611 (147)
Cross Examination
1. Cannot refuse answer
Direct Examination
1. Improper, except to establish preliminary facts; to
aid witness with memory loss; when questioning
hostile witness, child witness, timid witness; to
develop testimony as necessary
173
FRE 608(a)(2)
page 673
175
FRE 801(d)
176
FRE 611(a)(3)
174
19
Abhijit Das, 1999
Evidence Outline
2.
3.
4.
5.
a. the fact that lawyer-client relationship exists and
the identity of the client are not privileged. [See
In re Grand Jury Investigation (Durant)183
but see page 910-911 for contrary examples]
unless they may constitute the missing link in
an investigation – self incrimination worries.
b. reasonable steps must be taken to preserve
privilege – throwing documents in the trash –
not reasonable. [see Sew ‘n Sweep v. SwissBernina184]
Documents and correspondence prepared by
attorney for his own use are not privileged
communication (not communication)
a. research memos and witness statements, are
examples of such documents
b. also, physical evidence given to the lawyer –
not as a means by client to communicate with
lawyer not covered. Also, if an attorney
chooses to remove or alter an object, he
deprives the prosecution of the opportunity to
observe the evidence in its original condition,
therefore the original location and condition of
the evidence lose the privilege – it’s like the
object wore a tag: “this object was in place A”
which has been removed. Attorney must then
reveal how and where he got the object. [see
People v. Meredith185]
Work product – attorney has qualified privilege,
which is not subject to discovery unless good cause
exists
No privilege exists if:
a. made in the presence or hearing of third party
b. act in furtherance of crime or fraud [See State v.
Phelps, where the court held that advice to
avoid a future crime is privileged, advice taken
to commit future crime and not get caught is
not privileged.]
c. dispute between attorney and client (breach of
duty)
d. joint clients – when communication made
between joint clients and attorney and a dispute
arises between the clients.
The Corporate Client – prior to Upjohn v. U.S.,186
the “control-group” test applied to who may
communicate within a corporation to a lawyer under
the privilege. In Upjohn, the corporation had
learned of possible illegal activity in its foreign
dealings. In order to investigate, its corporate
counsel confidentially spoke with individuals at
all levels of the company to discuss the legal issues
involved. The court upheld the privilege and
overruled the “control group test.” To rule
otherwise, would destroy the purpose of the
privilege and make it difficult for corporations to
comport with the law.
a. still unclear who exactly is covered, but
broader than control group, and must deal with
employee in his corporate role.
Social Worker-Client
1. Extends physician-patient privilege in some states
2. Patient hold privilege
3. applies whether or not patient is a party
4. professional must be licensed or certified
a. applies to psychologists and psychiatrists
b. notes taken by licensed clinical social worker
may protected as well
5. communication must be confidential
6. no privilege if:
a. patient puts mental condition in issue
b. court ordered examination
c. commitment proceeding against patient
Physician-Patient187
1. statutory privilege based on encouragement of full
disclosure
2. patient holds privilege to refuse to disclose and to
prevent physician from divulging information
acquired while attending the patient in his
professional capacity
a. If patient is not present, in most jurisdictions, a
doctor may assert on patients behalf
b. if person incompetent or deceased, may be
asserted by guardian or personal representative
3. no privilege if:
a. non-medical information
b. patient/witness puts physical condition in issue
c. criminal or tortious act
d. dispute between doctor and patient
e. contractual agreement exists
4. generally, only recognized in civil proceedings
5. applies whether or not patient is party to the
proceedings
183
page 905
page 888
185
page 875
186
page
184
187
20
FRE 503
Abhijit Das, 1999
Evidence Outline
Husband-Wife188
1. protects marital relationship when valid marriage
exists, ends upon divorce
2. spousal immunity from testifying in criminal cases
a. common law – both spouses barred from
testifying against each other in civil or criminal
cases
b. modern rule: most states allow either spouse to
testify for the other in a civil case, and most
states also hold that either spouse can be
compelled to testify against the other in a civil
case
c. Federal courts in criminal cases: privilege
belongs to witness spouse who cannot be
compelled to testify or barred from testifying
[see Trammel v. US]
3. Spousal Communications
a. must be communication made in reliance upon
the sanctity of marriage which spouse would
want to keep confidential
b. may be asserted by either party
c. divorce does not terminate, and extends beyond
marriage
evidence is what the party claims, then it is
admissible under authentication standards
Steps in Authenticating
1. having the exhibit marked for ID by the court
reported
2. authenticating the exhibit by the testimony of a
witness unless the exhibit is self-authenticating
3. offering the exhibit into evidence
4. permitting examination by opposing counsel
5. allowing opposing counsel opportunity to object
6. submitting to court for examination if the court
desires
7. obtaining the ruling of the court
8. requesting permission to have the exhibit, if
admitted, presented to the jury by reading it to
them or having it passed to them.
Tangible Objects
1. Someone generally identifying something is
enough. They are not required to give specific
reasons for why they identify the object. “pretty
sure” good enough as ID [see US v. Johnson,190
where the victim authenticated the ax used in the
case]
2. Chain of Custody: a missing link in the chain if
custody doesn’t destroy the authenticity of the
evidence if there is sufficient evidence that the
offered object is what it is purported to be. [see U.S.
v. Howard-Arias191]
Writings
1. Nicknames and references in a written letter
discovered during a consent search were sufficient
to authenticate the letter. [see U.S. v. Bagaric192]
2. Stylistic patterns, misspellings, etc. can all be used
to authenticate when reasonably reliable
3. Contracts:
a. someone who saw it executed [901(b)(1)]
b. recognized handwriting [901(b)(2)]
c. jury compares handwriting samples [901(b)(3)]
d. distinctive characteristics [901(b)(4)]
e. obtain - public office where filed [901(b)(5)]
f. show – ancient document [901(b)(6)]
4. see sample on page 974
Tape Recordings
1. Trial judge has broad discretion. Though
competency of the operator, accuracy of the
recording, and ID of the person on the tape are
Written Memoranda
FRE 612 (153)
To promote Credibility and Memory
Present Recollection Refreshed189
1. Shown to a witness
2. May not be read while testifying
3. Exception: past recollection recorded
a. read into evidence after proper foundation laid
Adverse Party
1. Entitled to inspect and introduce portions relating to
testimony
Foundational Evidence and Authentication
Authentication
FRE 901 (247)
The requirement of authentication as a condition for
admissibility is satisfied by evidence sufficient to
support a finding that the matter in question is what
the proponent claims.
1. Judge plays a screening function under FRE
104(b). If evidence is such that there is a chance
a jury could reasonably believe that the
190
page 968
page 970
192
page 972
188
191
FRE 504
189
FRE 612
21
Abhijit Das, 1999
Evidence Outline
considered, corroborating evidence through a
“voiceprint” etc. is enough [see U.S. v. Biggins193]
Telephone Conversations
1. Self-Identification is Insufficient. [See US v.
Pool194]
Self-Authenticating Exhibits195
1. domestic public documents under seal
2. domestic public documents not under seal
3. foreign public documents
4. certified copies of public records
5. official publications
6. newspapers and periodicals
7. trade signs, tags, or labels
8. acknowledged documents
9. commercial paper and related documents
10. presumptions under Acts of Congress
4. if you can prove the its contents by the
testimony, deposition, or written admission of
the party against whom it is offered.
Summaries
Allowed if the original writings are too voluminous to
be entered conveniently into the record.
Judge/Jury Allocation
1. When the admissibility of other evidence of
writings, recordings, or photographs under these
rules depend upon a fulfillment of a condition
of fact, the question whether the condition has
been met is for the court to decide
2. When the issue is whether the asserted writing
a) ever existed,
b) another writing at trial is the original, or
c) the evidence correctly reflects the contends
then it is a jury matter.
Best Evidence Doctrine
Burdens of Proof
FRE 1001 (259), 1002 (261)
Might be called the “Original Document Rule”
Burden of Production
FRE 301 (63)
Rule in general: “In proving the terms of a writing,
where the terms are material, the original writing must
be produced unless it is shown to be unavailable for
some reason other than the serious fault of the
proponent.”
1. Original Document rather than a copy
2. when presented to prove terms of writing: rule
only applies where what is to be proved is the terms
of the writing and
3. the rule does not apply if the document is
unavailable because destroyed.196
Duplicates197
Duplicate is admissible unless:
1. genuine question exists as to authenticity of the
original
2. under the circumstances, it is unfair to admit the
original
and usually admissible where:
1. all originals lost or destroyed
2. if no original can be obtained
3. if the original is in the possession of the
opponent
Presumptions
1. Definition: a deduction that the trier of fact is
required to draw from the evidence in the absence of
a contrary showing [US v. Ahrens]
a. A presumption shifts the burden of going
forward with the evidence
2. Rebuttable presumptions – place the burden of
going forward with the evidence on the opposing
party – or a directed verdict is entered against it
a. if opposing party meets its burden of going
forward with the evidence, the case goes to the
jury or judge – if not directed verdict is entered
against it
3. Majority view: Bursting Bubble Theory – a
presumption is not evidence, but a preliminary
assumption of fact which disappears after the
introduction of sufficient evidence to sustain a
contrary finding. Under this approach, once the
defendant produces some evidence that the
presumption – a.k.a. plaintiff’s claim – is invalid,
the presumption disappears.
4. Minority view: Morgan: The presumption should
shift the burden of production and persuasion.
Hence, under this approach, once the defendant
produces some evidence that the presumption – it
must also bear the burden of persuading the trier that
its evidence is persuasive.
193
page 975
page 980
195
see page 31, supplement
196
Rationale: to eliminate chances for distortions in copies,
and fraud.
197
FRE 1003, 1004
194
22
Abhijit Das, 1999
Evidence Outline
trier of fact, rather, after P’s presentation of a prima
facie case, D was only required to demonstrate some
legitimate non-discriminatory reason, and thereafter,
it was P’s burden to prove, by POE, that the
proffered reasons weren’t actually followed. P
retains the burden of persuasion throughout.
2. Disbelief in the defendant’s reasons does not
equal verdict for the plaintiff. See St. Mary’s v.
Hicks199
3. Direct evidence of discrimination, once shown,
requires D to bear the burden of persuasion of
demonstrating it would have made the same decision
absent the discrimination. See Price Waterhouse v.
Hopkins,200 where the court held that this was not a
burden shift inconsistent with Burdine, but rather
like an affirmative defense.
5. Conclusive Presumptions: rules of substantive
law which cannot be rebutted by producing
evidence to the contrary
6. Due Process: as long as there is a rational
connection between the fact proved and the ultimate
fact presumed, due process requirements are met.
Congress, therefore, can allocate presumption, if
rationally related to the purpose, in different issues
for which civil claims may be brought.
Burden of Persuasion
FRE 301 (63)
Generally
1. Task - present legally sufficient evidence to
persuade trier of fact on all issues. Only relevant
when both sides have met their burden of production
so as to make either plaintiff or defendant victory
possible.
Allocation
1. Usually, the party seeking to change the status quo
has the burdens upon it.
2. Burden on plaintiff to prove the allegations in the
complaint and the burden upon the defendant to
prove all affirmative defenses
Standards of Proof
1. Preponderance of the Evidence – fact at issue is
more probable or likely than not to exist than not to
exist
2. Clear and Convincing Evidence
a. existence of fact at issue is highly probable or
reasonably certain
b. higher than POE
3. Beyond a Reasonable Doubt
a. sufficient evidence to overcome presumption of
innocence of defendant
b. standard used in criminal cases
Burdens in Criminal Cases
FRE 301 (63)
1. Elements of a crime – those elements required and
defined by a legislature that constitute the crime
2. Affirmative Defenses – certain factors recognized
by the legislature as being excuses or justifications
for the crime
3. Burdens – the state has the burden of proof as to the
elements of the crime while the defendant has the
burden for affirmative defenses
4. Discretion – a state has considerable discretion in
allocating whether a factor is an element or a
defense. Constitutional limits are applicable: due
process and Eighth Amendment. The following are
generally considered allowed:
a. insanity
b. self-defense
c. duress
d. voluntary intoxication
e. extreme emotional disturbance
5. Mullaney v. Wilbur201 - Maine’s murder statute,
which required a defendant to rebut the presumption
of “malice aforethought” was held to be an
unconstitutional shifting of burden from the
prosecutor to the defendant, hence a due process
violation.
6. Patterson v. New York202 – a New York law
defined 2nd degree murder as the intentional killing
of another. Can be reduced to manslaughter if the
Burdens in Civil Cases
FRE 301 (63)
1. Workings of FRE 301 – In Texas v. Burdine,198
involved a suit under Title VII, where P had the
burden of producing evidence that D had
discriminated. She also had to persuade the trier of
fact that such discrimination occurred. She had the
benefit of a presumption of the existence of
discrimination upon the showing that she was
qualified. D was thereafter required to prove that he
had valid non-discriminatory reasons. Held:
defendant was never required to persuade the
198
199
page 787
page 787
201
page 797
202
page 795
200
page 779
23
Abhijit Das, 1999
Evidence Outline
material whose accuracy cannot reasonably be
questioned (almanacs, encyclopedias)
2. Examples on page 844
Legislative Facts
1. Definition: those facts that are relevant to “legal
reasoning” and the “lawmaking process”
a. includes statutory law and judicial decisions
2. Advisory Committee Notes – distinguishes
legislative from adjudicative facts
Adjudicative Facts
1. The rules which “relate to the parties”
a. who did what, where, when, how, with whom,
and with what motive
b. facts that normally would go to jury except that
judicial notice may be taken because no
reasonable person could dispute them, e.g.:
i. the reliability of radar speed tests
j. the boiling point of water
Mandatory Judicial Notice
1. Facts that are so universally known that they cannot
reasonably be disputed (adjudicative)
2. Meaning of legal expressions (legislative)
3. Meaning of English words and phrases (legislative)
4. Federal and State law (legislative)
5. Federal and State rules of procedure (legislative)
a. [201(a) note – treat 2 through 5 as part of court’s
reasoning process and not as judicial notice]
Permissive Judicial Notice
1. May take judicial notice of certain matters206 and
required to take notice when requested by a party
and provided with the necessary information207
2. Laws of other states or nations208
3. Administrative regulations and orders
a. municipal ordinances must be plead, and may
not be judicially noticed, since they are often
compiled in a haphazard way and difficult to
research
Effect of Judicial Notice
1. Civil Case – binding on jury to accept as conclusive
any fact judicially noticed
2. Criminal Case – Jury instructed that it may, but not
required to, accept any fact judicially noticed as
conclusive209 Though generally, judicial notice can
defendant as an affirmative defense, under POE,
proves he was under emotional disturbance. Held:
did not violate due process rights of the defendant
because the prosecution had to prove all elements of
the crime beyond a reasonable doubt. It is within a
state’s legislative power to determine which
elements will be part of which crimes. Dissent:
What, then, prevents a state from abolishing all
distinctions and making basic crime definitions?
Clark: If you want to offer a new defense, you may
place it within the affirmative defense category so
as to place the burden upon the defendant.
7. Sandstrom v. Montana203 - involved a jury
instruction which stated “the law presumes that a
person intends the ordinary consequences of his
voluntary actions” Objection to the instruction
rebuffed by the trial judge – “you can give those to
the Supreme Court.” Held: the jury could have
interpreted this presumption to be a shift in the
burden of persuasion or a conclusive presumption as
to the issue of intent, and hence impermissible.
8. County of Ulster v. Allen,204 in which a NY state
statute stated that the presence of a fire arm in a car
is presumptive evidence of its illegal possession by
all in the car. defendants sought to have the statute
declared unconstitutional on its face. Held:
mandatory presumptions may be challenged on their
face, permissive presumptions must be challenged as
applied. Here, the presumption is rational – and
more likely true than not – and should be upheld
because of the rational link between the fact
presumed and the ultimate facts proved by the
prosecution.
Judicial Notice
FRE 201 (53)
Judicial notice is the acceptance of a fact as true
without the necessity of formal proof, which may be
taken at any stage of the proceeding – both trial and
appellate and without any notice required to the parties.
1. not subject to reasonable dispute because it is
generally known within the jurisdiction of the
court205 (such as location of a road) and capable
of accurate determination based on review of
206
FRE 201 (c)
FRE 201 (d)
208
Examples/Clarification: though this was impermissible in
many jurisdictions under common law, the federal courts and
rules allow such judicial notice generally
209
FRE 201(g)
207
203
page 814
page 822
205
a judge’s personal knowledge alone is insufficient to
support judicial notice
204
24
Abhijit Das, 1999
Evidence Outline
be taken on appeal, it must be taken at trial so as to
give the jury a chance to ignore it [See US v.
Jones210 - failure of the prosecution to prove an
element of the crime cannot be corrected upon
appeal, even if the fact would otherwise be subject
to judicial notice]
a. not for legislative facts, though: a judicial
notice regarding a legislative fact, since not
covered by FRE 201(g), is binding upon the
jury. Legislative facts are “established truths,
facts, or pronouncements that do not change
from case to case but apply universally.” [See
US v. Gould211]
210
211
page 845
page 858
25
Abhijit Das, 1999
Evidence Outline
Abhijit Das – Evidence Outline – Index
(Declarant  Unavailable)
Absence of complaints or silence
Absence of Entry in Business Records
Adjudicative Facts
Admission by Party Opponent
Adoptive Admissions
Affirmative Defenses
agent 8
Ambiguity 9
Attorney-Client
Authentication
Authorized Statements
Benefits of Testimony; Contrast with Hearsay
Best Evidence Doctrine
Bias 16
Burden of Persuasion
Burdens in Civil Cases
Burdens in Criminal Cases
Burdens of Proof
Bursting Bubble Theory
Business Records Exception
can’t repair until attacked.
Character 2
Character for Untruthfulness
child molestation cases
Circumstantial Evidence
Civil pleadings
Co-Conspirator Statements
collateral issues
Competency and Personal Knowledge
Competency Assumed
Conditional Relevance Determinations
conduct (which did not result in conviction
Context
9
Corporate Client
criminal liability
Criminal pleadings
Cross Examination –
Cross examine negative witnesses
Dangers of Hearsay
Dead Man Statutes
Declarant  Unavailable
Declarant = Unavailable
Declarant’s state of mind
Defamation
Defect in Sensory of Mental Capacity
defendant’s prior conviction
defendant’s prior conviction –
Demeanor 9
Direct Evidence
DNA Evidence
Documents and Records
Duplicates 21
Dying Declarations
Effect of Judicial Notice
Excited Utterance
Expert Witnesses
Former testimony
Foundational Evidence and Authentication
gruesome pictures
Habit 3
Hearsay
5
Hypnosis in the Courtroom
Impact on listener
Impeachment of Witnesses
Inaccurate Perception –
Incorrect Memory
Insincerity 9
judge decides –
Judge/Jury Allocation
Judge’s Evaluation
Judicial Notice
jury decides
Lay Witnesses
Leading Questions
Legislative Facts
Liability Insurance
Mandatory Judicial Notice
Materiality 1
Medical Diagnosis or Treatment
medical expenses
mentally impaired
MIMIC 3
Mistake in transmittal –
Morgan 21
My Cousin Vinny
Necessity 12
Negligent Entrustment:
Oath 9, 13
of crimes involving dishonesty
Offers to pay medical expenses
opening his own door
opinion 2
Opinion or Reputation
9
6
11
23
7
8
22
18
20
8
9
21
21
22
22
21
21
11
17
16
5
1
7
8
16
13
13
1
16
19
13
8
9
18
9
14
9
12
6
2
16
17
26
17
1
15
5
12
23
9
14
12
20
1
14
6
15
9
9
1
21
17
23
1
14
18
23
4
23
10
4
16
9
15
2
16
4
17
17
Abhijit Das, 1999
Evidence Outline
Other Bad Acts of Misconduct
other crimes
paid witnesses
Paper-Mache Man
past memory or belief
Permissive Judicial Notice
Personal Knowledge Required
Pleas and Related Statements
Positive character witnesses:
Present physical condition –
Present Sense Impression
Preserving appeal
Presumptions
Prior Acts / Habit
Prior Consistent Statement
Prior Consistent Testimony:
prior crimes
Prior Inconsistent Statement
Prior Statement of Identification
Privileges 18
Probabilities
Proving Character
Public Policy Exclusions / Pleas
Public Records & Reports
Rape 5
Recorded Recollection
Redirect examination of witness
Rehabilitation of Witnesses
Relevance 1
Remedial Measures
reputation 2
rule of completeness
Scientific Evidence
Self-Authenticating Exhibits
3
16
16
7
10
23
13
5
18
10
9
17
21
3
7
18
1
7, 15
7
Settlement Offers or negotiations
Sexual Assault / Rape
Standards of Proof
Statement 6
Statement of past conditions
Statements Against Interest
statements as to past state of mind
statements obtained in violation of Miranda
statements of present intent
Statements Which Aren’t Hearsay
Step Method
Steps in Authenticating
Stylistic patterns, misspellings
Subsequent Remedial Measures
Summaries 21
Syndrome evidence
Tangible Objects
Tape Recordings
Telephone Conversations
Testimony by Jurors
The Corporate Client
Then Existing Mental or Physical Condition
Treatises 11
Trustworthiness
Verbal Acts
Verbal Part of Act
Vicarious Admissions
Victim’s Character
Ways to Repair…
Withdrawn guilty pleas
Witnesses 13
Work product
Writings 20
Written Memoranda
2
2
4
11
11
18
17
4
2
15
20
2
4
5
22
10
13
10
16
10
7
1
20
20
4
15
20
20
20
14
19
9
12
6
6
8
3
18
5
19
20
Abhijit Das, 1999
Evidence Outline
Shepard v. US.............................................................. 10
St. Mary’s v. Hicks ..................................................... 22
State v. Chappel ............................................................ 1
State v. Moore ............................................................. 15
State v. Motta ................................................................ 7
State v. Smith ................................................................ 7
Tanner v. United States .............................................. 14
Texas v. Burdine ......................................................... 22
Tome v. US .............................................................. 7, 18
Trammel v. US ............................................................ 20
U.S. v. Bagaric ............................................................. 20
U.S. v. Biggins ............................................................. 20
United States v. Abel .................................................. 16
United States v. Check ................................................. 5
United States v. Fowler .............................................. 13
United States v. Lopez ................................................ 16
Upjohn v. U.S .............................................................. 19
US v. Ahrens................................................................ 21
US v. Alker. ................................................................... 9
US v. Annunziato ........................................................ 10
US v. Castro-Ayon ........................................................ 7
US v. DiCaro ............................................................... 12
US v. Elmy ..................................................................... 7
US v. Gould ................................................................. 23
US v. Havens ............................................................... 17
US v. Hoosier ................................................................. 8
US v. Inadi ..................................................................... 8
US v. Iron Shell ........................................................... 10
US v. Iron Shell, ............................................................ 9
US v. Johnson .............................................................. 20
US v. Kovel .................................................................. 18
US v. Medical Therapy Sciences ............................... 18
US v. Mezzanatto .......................................................... 5
US v. Nixon .................................................................... 8
US v. Oates .................................................................. 11
US v. Pheaster ............................................................. 10
US v. Pool .................................................................... 20
US v. Salerno ............................................................... 12
US v. Singer ................................................................... 6
Williamson v. U.S ....................................................... 13
Wright v. Doe d. Tatham ............................................. 6
Abhijit Das – Evidence Outline
Cases
also People v. Alcade .................................................. 10
Baker v. Elcona Homes Corp .................................... 11
Barber v. Page ............................................................ 12
Betts v. Betts ................................................................. 6
Bourjaily v. US.............................................................. 8
Bruton v. US.................................................................. 8
Carpenter v. Davis...................................................... 13
County of Ulster v. Allen ........................................... 23
Daubert v. Merrell Dow Pharmaceuticals ............... 15
Davis v. Alaska............................................................ 16
Donnelly v. US............................................................. 13
Doyle v. Ohio ................................................................. 9
Flaminio v. Honda Motor Co ...................................... 4
Frye .............................................................................. 15
GE v. Joiner ................................................................ 15
Glasser v. US ................................................................. 8
Halloran v. Virginia ..................................................... 4
Harris v. New York .................................................... 16
Huddleston v. US .......................................................... 3
In re Grand Jury Investigation (Durant) ................. 18
Jenkins v. Anderson ..................................................... 9
Krulewitch v. US .......................................................... 8
Lloyd v. American Export Lines, Inc ....................... 12
Luce.............................................................................. 17
Mahlandt v. Wild Canid Survival & Research Center
.................................................................................... 8
Mancusi v. Stubbs ...................................................... 12
Miranda ......................................................................... 9
Mullaney v. Wilbur .................................................... 22
Mutual Life Ins. Co. v. Hillmon ................................ 10
Nuttall v. Reading Co. .................................................. 9
Ohio v. Scott ................................................................ 11
Old Chief v. US, ............................................................ 1
Olden v. Kentucky ...................................................... 16
Palmer v. Hoffman ..................................................... 11
Patterson v. New York ............................................... 22
People v. Collins,........................................................... 2
People v. Meredith...................................................... 19
Petrocelli v. Gallison .................................................. 11
Pheaster or Hillmon.................................................... 10
Price Waterhouse v. Hopkins .................................... 22
Ricketts v. Delaware ................................................... 13
Rock v. Arkansas ........................................................ 14
Sandstrom v. Montana ............................................... 22
Sew ‘n Sweep v. Swiss-Bernina ................................. 18
2