EVIDENCE ELEMENT EXAM OUTLINE
ELEMENT
Summary
Judgment
Rule of
Completeness
FRE 106
Weight and
credibility
104(e)
AUTHORITY
INTERPRETATION/APPLICATION
EVIDENTIARY PRINCIPLES
Evidence that supports summary judgment must be admissible
at trial
To offer other parts of document which in fairness should be considered in order to provide context
Allows opposing party to introduce evidence before the jury relevant to weight and credibility. ie Two diametrically opposed
hearsay statements are considered by the judge under 104(a). Both are excludable. Once one comes in the other must come in as
non-hearsay simply to refute the other statement.
RELEVANCE
1. What is the evidence being offered to prove?
Relevance

Very low standard of helpfulness. A feather on the scale is sufficient
2. Does it help to establish a proposition?

Admissible if its relevant though on its own insufficient to conclusively prove it
3. Is the fact properly provable in the case?

Evidence towards affirmative defenses not raised in the pleadings are not properly provable

Notice of certain kinds of evidence is required ie evidence of prior bad acts.
1. How much does the evidence help and what are its costs?

FRE 401: relevance→ FRE 402: presumptively admissible→ FRE 403: burden on the party trying to keep it out must
show unfair prejudice outweighs probative value
Knapp v. State (1907) (in murder prosecution, self-defense is raised. Prosecution’s evidence of an old man dying of natural
Feather on the
causes properly makes the rumor that the defendant heard less likely to be truthful) but see
Scale Approach
Sherrod v. Berry (1988) (in wrongful death action against police evidence that victim was unarmed irrelevant to refute
defendant’s perception that he was in imminent danger)
Old Chief v. U.S. (1997) (where defendant is charged with
Probative Value
Old Chief FRE 403 Balancing Teaching:
felon in possession of firearm, proof of prior aggravated
v. Prejudicial
1. For what proper purpose, if any, could the evidence by
assault risk should be limited to a stipulation due to a high
Effect Rule 403
used?
risk of prejudice) but see
2. For what improper person, if any, could the evidence
Parr v. U.S. (1958) (defendant not entitled to stipulation that
be used?
movie was pornographic where possession of pornography is 3. Could the proper purpose be accomplished as well or
part of the charge)
nearly as well by evidence alternatives that do not
*Note: Standard of Review for Rule 403 determinations is
create as much danger that they would be used for
abuse of discretion
improper purpose?
Ballou v. Henri Studios, Inc. (1981) (conflicted evidence
4. Considering the alternatives, does the prejudice
over defendant’s intox. In the face of fair prejudice, the jury
substantially outweigh the probative value?
should make credibility determinations)
1. Narrative Integrities: Cohesive sequence of events
Four Parr
2. Juror Expectations/Disappointment: Jury may take disappointment out on party
Rationales
3. Moral Persuasiveness/Standard: Evidence does more than just satisfy elements intellectually. It can properly have an
emotional impact.
4. Multiple Utility/Purpose: Pieces of evidence can have multiple purposes, some which may be unforeseen by the parties’
intended purposes
FRE 105: Court must issue limiting instruction to limit
Limited
evidence to its proper scope and instruct jury accordingly
Admissibility
Character Evidence
Two Primary Issues for Character Evidence
1. When is character evidence admissible? FRE 404
-may be inadmissible for one purpose but admissible for another
2. If admissible, how may it be proven? FRE 405
-opinion, reputation testimony or specific act evidence
Four Ideas Regarding Character
1. If character is an essential issue → anything goes FRE 405(b)
2. If character is not an issue → not admissible to prove conduct FRE 404(a)
3. Character can be used as a defense in a criminal case → FRE 404(a)(1), FRE 404(a)(2)
4. Character is admissible to attack the credibility of a witness for truthfulness → FRE 404(a)(3) & impeachment rules
1
Character in
Issue
Character as
Circumstantial
Evidence
Extrinsic
Offense
Evidence
Identity
Intent
Motive
Knowledge
Other Crimes,
Wrongs, or Acts
404(b)
Cleghorn v. N.Y. Central (1874)
Facts: RR switchman causes accident
Procedure: Negligence and negligent entrustment action seeking punitive damages RR
Disputed Evidence: Intemperance
Admissibility: Specific acts and reputation evidence admissible to show RR should not have hired him. Use FRE 105.
Michelson v. U.S. (1948)
Facts: Defendant accused of bribing federal official.
Disputed evidence is that he was arrested for receiving stolen goods 27 years ago.

FRE 404(a)(1) Mercy Rule → Defendant can present character evidence but this opens the door for prosecution to offer
character evidence to rebut it

FRE 405 allows for evidence of prior arrests to be elicited by cross-examination
404(b) Extrinsic Offense Evidence (MIMIC KOP)

Motive

Intent

Mistake

Identity

Common Plan/Scheme

Knowledge

Opportunity

Preparation

Completing the story

Guilty Conscience

Modus operandi/signature
Rex v. Smith (brides of the bath case)
-Evidence Has Multiple Permissible Purposes
-Modus operandi/Handiwork/Trademark
-Crime is committed in such a unique way it can only be committed by the same person (Identity)
-Absence of mistake/accident
-Opportunity
-Intent (so frequent he must have intended to kill his wife)
U.S. v. Carrillo (1993) (prosecution evidence of prior drug sales using balloon must be excluded where use of a balloon is not
unique but rather common)
U.S. v. Beasley (1987)
FRE 403 balancing
Facts: Chemist acquires drugs claiming it was for plant

Other evidentiary alternatives
research

What is the evidence that connect defendant to other
Disputed Evidence: Doctor shopping. Testimony from drugcrimes is it clear that he was involved in other crimes?
addicted customer. Giving drugs to colleagues for their

Time factor. Remoteness reduces probative value
personal use.
Theory: Pattern to show intent
Holding: Conduct must be similar/close in time to show
pattern however case must be remanded where trial fails to
conduct FRE 403 balancing
U.S. v. Cunningham (1996)
Facts: Theft of Demerol. Prosecution wants to introduce evidence that nurse falsified drug test to get license back after
suspension for stealing Demerol to satisfy addiction
Analysis: Firebug Theory → Unusual case where addiction shows propensity that is not improper

Cannot satisfy compulsion for drugs in any other way

Addiction can come in but not evidence of conviction. Conviction is not necessary to show addiction. Theft does not
distinguish her from someone who steals drugs to make money. It is the reason for the theft that is important.

Suspension was necessary to contextualize why she falsified drug tests
Huddleston v. U.S. 1988 (knowledge of the goods being stolen, not a conviction, governs admissibility)
Huddleston v. U.S. 1988 (FRE 404(b) questions are 104(b)
404(b) Question
questions of condition relevance)
1. Is there sufficient evidence that the defendant committed
Dowling v. U.S. (acquittal for prior bad acts does not affect
the uncharged misconduct?
admissibility b/c a second jury could reasonably find that he
2. If there is sufficient evidence, sis the unchanged
did commit the prior bad act. Lower stand of proof.)
misconduct offered for some purpose other than showing
character?
3. Is that non-character purpose relevant to a disputed
issue in the case?
4. Is the probative value of the extrinsic offense evidence
2
substantially outweighed by the danger of unfair prejudice?
5. Must still give 105 limiting instruction
Character of the
Alleged Victim
FRE 404
FRE 406 Habit
FRE 412 Rape
Shield Laws
Prior Sex
Crimes Evidence
Similar
Happenings
Subsequent
Remedial
Measures
Perrin v. Anderson (character evidence that victim hated
police admitted in a civil case→ overruled by 2006
amendment. However, it could probably have come in as
FRE 406 habit evidence)

Accused may offer character evidence of pertinent/relevant
trait of alleged victim 404(a)(1)
o Prosecution can then rebut this character evidence
about victim offered by accused 404(a)(1)
o Prosecution can also offer evidence concerning the
same character trait of accused 404(a)(1)

Only in a homicide case prosecution can go first and enter
evidence concerning peaceful character of victim
*Note: Comes in for propensity purposes
404(b) comes in for non-propensity purposes
*Note Everything is subject to FRE 412, the rape shield rule.
* A 404(a) question is a FRE 104(b) question of conditional
relevance
Halloran v. VA Chemical (habit can be proved using
Habit= Automatic response to a specific situation
extrinsic or specific act evidence)
Habit evidence is always admissible and is not subject FRE 405
State v. Cassidy (evidence of prior sexual behavior of alleged FRE 412 applies to all cases involving alleged sexual
victim is generally inadmissible under FRE 412
misconduct
Olden v. KY (where victim has motive to fabricate rape to
Predisposition→ dressing, lifestyle, speech, fantasies ,
protect relationship and live-in boyfriend is witness, the
contraceptives, illegitimate children → sexual connotation
constitution does not allow rape shield statute to preclude
banned
admission of evidence re current relationship)
B(1) exceptions criminal cases
-allowed to accuse someone else of the misconduct
-specific instances w/ defendant
-constitutional right (such evidence is only subject to 104(b))
B(2) exceptions civil case: defendant has burden of showing
probative value is so great it outweighs prejudice.
Presumptively inadmissible
(c) procedure: notice, in-camera, sealed transcripts
Johnson v. Elk Lake (prior sex crime must meet elements of FRE 413 Criminal Sexual Assault
sex crime under either state or federal law to be admissible
FRE 414 Criminal Child Molestation
under FRE 413-415)
FRE 415 Civil Sexual Assault or Child Molestation
Relevance and its Counterweights
Simon v. Kennebunkport (ME rule that similar happening
No specific rule but governed by FRE 402
evidence is not admissible is overruled)
FRE 104(a) Preliminary Question of Fact
-trial court must determine whether conditions of prior
happening were similar enough
Anderson v. Malloy (professional judgment call will put
FRE 407 Subsequent Remedial Measures
feasibility at issue)

Only admissible for purpose other than showing that
But see Toer v. McDonald (when you make professional
subsequent measures would have reduced likelihood of
judgment call and weigh risks and benefits feasibility is not
harm
controverted)

Must be controverted
Muzyka v. Remington Arms (defendant who claimed that

Under 1997 amendments FRE 407 to product/strict liability
this was the best safety design for the gun could be
cases, but some courts decline to apply
impeached using subsequent remedial measures)

Always trigger FRE 105 limiting instruction

Measures: encompasses broad variety of changes that
might have prevented the injury of harm → repair,
procedures, terminating employee

Rationale behind exclusion of subsequent remedial
measures
-relevance rationale: changing policy does not amount to
admission of fault or culpable conduct
Two Definitions of Feasibility
-Physically, economically, technologically possible def: will
virtually never be admissible b/c def typically will not dispute
they could have done it (not controverted)
-Cost and Benefit/Judgment Call/Balancing of Risks def: almost
always controverted in a negligence case
3
Davidson v. Prince 1991 (an ultimatum letter does not involved a compromise and is admitted as substantive evidence. Would
have been allowed to impeach plaintiff prior to 2006 Amendments)
Analysis

Excludes settlement negotiation correspondence letters, statements, and conduct
o Prohibited for showing liability, validity of claim or amount of claim

Offer of compromise does not have to have a settlement amount

Under new 2006 amendment to FRE408 impeachment of an inconsistent statement is not allowed/not a legitimate nonnegligence use of offer of compromise. Cannot be used to achieve impeachment through prior inconsistent
statement/contradiction.

However, FRE408(b) allows offers of compromise can be used to demonstrate witness bias.

Can only impeach to show bias and prejudice ie as part of sttlmt one defendant agrees to testify against another defendant
FRE 410
FRE 410
Inadmissibility

Inadmissible
of Pleas, Plea
o Defendant has withdrawn guilty plea
Discussion, and
o Defendant has plead nolo contendre
Related
o Plea discussion
Statements
o Guilty pleas themselves are admissible. Judgments of conviction are admissible under FRE 803(22)

Admissible
o If it gets in then the rest of the discussion can come in the interest of fairness
o In a perjury case if the contradictory plea statement was made on the record under oath w/ counsel present
2. HEARSAY
Statement of an out-of-court declarant offered to prove the truth of the matter asserted
Definition FRE
Definition Questions
801(c)
1. Who is the declarant?
2. Has the declarant made as “statement” out of court?
3. What if anything is being asserted?
4. Is the statement offered “to prove the truth of the matter asserted”?
Testimonial Infirmities
1. Memory
2. Perception
3. Insincerity
4. Ambiguity
Hearsay admissibility is a 104(a) Preliminary Question of Fact that judge will decide.

The party seeking to exclude the evidence must carry the burden of convincing the court that conduct was assertive by
a preponderance of the evidence  see comments to Rule 801
801(d) Definitions  These are not hearsay though they are offered to prove truth of matter asserted. They are
exclusions

prior statements of id

prior inconsistent statement made under oath

prior consistent statements offered to rehabilitate witness charged with fabrication.

admissions
Estate of Murdock (pretend case) (statement by husband that I am still alive is not hearsay when offered to show that he was still alive)
Subramaniam v. Public Prosecutor (statements made by terrorists go to defendants belief that he was in reasonable danger of death or imminent
bodily harm)
Vineyard v. Vineyard Funeral Homes (evidence about other people saying the surface is slippery when wet in a slip and fall case goes to notice)
Johnson v. Miscordia Hospital (written reports about doctor’s incompetence goes to proving notice in a negligent hiring claim)
Ries Bio v. Bank of Santa Fe (statement by bank VP that we guarantee payment is legally operative language and non-hearsay)
Fun-Damental Too Ltd. v. Gemmy Ind. Corp. (statements by retail customers that it is unfair to sell a toy that they do not realize is a copy to other
retailers at a lower price shows actual consumer confusion in a copyright infringement case. Even if statement was hearsay “I am confused” it would
come in under the state of mind exception.)
U.S. v. Hernandez (out of court statement made by US Customs Agent that defendant was a drug smuggler is non-hearsay for the purpose of
demonstrating investigators state of mind, but investigator’s state of mind is irrelevant and not at issue in a criminal trial)
Wright v. Tatum (at common law, implied assertions were inadmissible hearsay)
Implied
U.S. v. Zenni (betting instruction made by gambler over the phone is not hearsay because there is no intent to assert that Zenni is
Assertions
a bookie. Furthermore, a betting instruction cannot be offered for the truth of the matter asserted)
Wilson v. Clancy (absent specific circumstances, silence is not sufficient to amount to assertive conduct. *Note on summary
judgment, always ask if the disputed evidence raises a genuine issue of material fact)
U.S. v. Jaramillo-Suarez (in drug distribution case, pay-owe sheet is admissible to show nature of activities that took place on
the premises, but not that a specific transaction actually occurred)
U.S. v. Rhodes (Soviet letters indicating that Rhodes is a Soviet spy demonstrate that Soviets have a relationship with him
FRE 408
Compromises
and Offers to
Compromise
4
FRE 602
Personal
Knowledge
Definition of
Declarant
Bootstrapping
Admissions FRE
801(d)(2)
Adoptive
Admissions
Authorized &
Unauthorized
Admissions FRE
801(d)(2)(C)&
(D)
regardless of whether the letter’s statement are true or not)
U.S. v. Brown (where tax auditor testifies that 90% of returns prepared were fraudulent she either lacks FRE 602 personal
knowledge or is testifying based on hearsay)
State v. Jones (rule is satisfied where declarant speaks from personal knowledge)(present sense impression admissible where
unidentified declarant speaks from personal knowledge about what he heard on CB radio)
Reed v. McCord (personal knowledge not required for admissions)
City of Webster Groves v. Quick (radar gun is a machine and a machine cannot be a declarant)
Truck Ins. Exchange v. Michling (where a hearsay
Definition: Considering the hearsay statement in determining its
statement that husband hit his head is the only evidence that
admissibility
this accident occurred, bootstrapping is not allowed and the
Since hearsay exceptions are 104(a) preliminary questions of
statement cannot come in as a present sense impression)
fact bootstrapping is allowed under the FRE
HEARSAY EXCLUSIONS
Reed v. McCord (personal knowledge not required for

Extremely broad  anything a party says or does can be
admissions)
offered against them.

No against interest aspect to the statement necessary, in
fact can be self-serving

Should really be called statements of a party opponent

104(a) Preliminary Question of Fact is → preponderance
of the evidence
5 Types of Admissions FRE 801(d)(2)
A. Parties own statement on their own behalf

Must have independent evidence to show that it was
the party
B. Adoptive admissions
a. Statements of others party opponent have adopted by
words or conduct
C. Authorized admissions
a. Ie attorneys statement for client
D. Unauthorized admissions
a. Agent/employee of the party during course or scope of
agency/employment
E. Statements of coconspirators
*FRE 801(d)(2) has been amended to allow bootstrapping for
sections (C), (D), or (E) but bootstrapping will not be allowed if
the statement is the only evidence. Cannot use the statement by
itself to prove the elements of the hearsay exception sought to
admit it.
*Note: Brutton doctrine does not allow admissions against codefendants. However, declarations against interest might be
admissible if non-testimonial
U.S. v. Hoosier (in bank robbery case where defendant did
Adoptive statement by silence → only if reasonable person
not refute girlfriend’s boasting that they had sacks of money
would have refuted the statement under the circumstances
was an adoptive admission)
*Reconciling Hoosier and Carlson
State v. Carlson (in drug case, fact the defendant hung and

Silence is much more ambiguous in the presence of a
shook his head after being accused of doing drugs to too
police officer.
ambiguous to be an adoptive admission)

In Hoosier def. had already told witness that he planned to
rob the bank so silence was not due to lack of trust.
Would have probably denied it if it was untrue.
Based on Agency relationship. Agent must have fiduciary
Mahlandt v. Wild Canid Survival & Research Ctr.
Facts: Wolf allegedly bit child
ability to alter legal relationship. Principal must have control
Holdings:
over agent’s conduct
(1) Minutes of the board meeting reaching the
For authorized admissions, agent must be clearly authorized to
conclusion that the wolf bit the child are
speak on behalf of principal
admissible against the center as authorized
Three Elements of Agency
admissions
1. The power of the agent to alter legal relationships btw the
(2) A note & a statement from handler of wolf to
principal and third party and btw the principal and himself
director that wolf bit a child are admissible against
2. A fiduciary relationship btw the principal and agent
the center as an unauthorized admissions. Does
regarding matters within the scope of the agency
not matter that the note was an internal statement.
3. The right of the principal to control the agents conduct
5
Statements of
Co-conspirators
FRE 801(d)(1)
Prior Statements
of Identification
Present
Recollection
Refreshed
FRE 803(5) Past
Recollection
Recorded
FRE 803(6)
Business Record
Exception
Big Mack Trucking v. Dickerson
Evidence rules do not allow the use of evidence not
admissible against the employer to establish liability for
vicarious liability purposes
For example: If admission of employee is made after he is
terminated it will be admissible to prove employee’s liability
but inadmissible to prove employer’s vicarious liability
Sabel v. Mead Johnson & Co. (in negligence action against
drug manufacturer, statements of outside specialists in
meeting are inadmissible as authorized/unauthorized
admission b/c manufacturer lacks the control over them to
make them agents. However, statements of in-house
specialists are admissible under either (C) & (D).
U.S. v. Doerr (in prostitution case where statement was idle
chatter, it was not in furtherance of the conspiracy and was
inadmissible hearsay)
U.S. v. Bourjaily (prior to amendment, bootstrapping was
allowed when statement was the only evidence that
foundation requirements of exception are met→ overruled by
amendments)
U.S. v. Owen (extreme memory loss does not defeat
available for cross-examination for cross examination
element of prior id exclusion. This is a question of
credibility)
regarding matters within the scope of the agency
o Consent of the agent to control. See US v. Summers
(cannot be agent and informant at the same time)
*Note: LIMITED BOOTSTRAPPING. Statement itself cannot
establish foundational requirements
Foundational Requirements
1. Must establish existence of conspiracy
2. Must establish participation of declarant and party
opponent in conspiracy
3. Must establish that statement is made in furtherance of the
conspiracy
4. Must establish that statement is made during course of
conspiracy

Some states do not require during the course element.
They allow post-conspiracy cover up statements.
*Note: LIMITED BOOTSTRAPPING. Statement itself cannot
establish foundational requirements.
801(d)(1): Prior Statement of ID Elements
1. declarant testifies at trial
2. and is available for cross-examination
3. about identification of person by declarant
4. Made after perceiving that person (no temporal limit)
HEARSAY EXCEPTIONS
Baker v. State (police officer can use report of another
-show the W s stimulus to jog his memory, then he testifies
officer to refresh his memory of a matter of which he has
from memory
personal knowledge)
-If using a writing to refresh recollection, must follow
procedures in FRE 612

Show to opponent , allow to inspect, and opponent
can cross regarding source of document

May be able to show W is just quoting verbatim, not
truly testifying from memory, or that testimony is
inconsistent with source or something important has
been left out
Adams v. NY Central RR Co. (unlike FRE, Ohio restricts
Foundation Requirements
documents used for past recollection recorded to be business
1. made/adopted by witness
records)
2. at time when fresh in witness’s memory
3. witness must testify it was accurate when made/adopted
4. witness can’t remember the matter now/insufficient
recollection
5. Witness can say that the doc reflects his knowledge and
can be read into evidence, but it is not allowed to be
received as an exhibit unless offered by an adverse party
Foundation Requirements
1. Need a memo/report/record/ (basically any sort of data compilation)

Computer records are included too—assumed reliable unless potential defect in their trustworthiness is shown
2. Describing acts/events/conditions/opinions/diagnosis/ etc.
3. Made at or near time of event
4. Made and kept in the course of a regularly conducted business activity
5. By a person with a business duty and with knowledge of the event or from info transmitted by a person with a business
duty and with knowledge of the event.
Lewis Factors: timing, litigation or non-litigation purpose, legal or other duty to create, outside reliance on report, regularity of
6
Business
Records Cases
practice, against interest?, who is it offered by?
Johnson v. Lutz (adds implied req. that person supplying info contained in the records must have a business duty to report them
only encompasses records made as part of a business duty to keep/report business records)
U.S. v. Vigneau (Western Union computer records with defendant’s name filled-out by defendant were inadmissible to prove
that defendant sent money in drug transaction. Defendant had no business duty to Western Union and they did not verify
defendant’s identity. Could be offered for highly prejudicial non-hearsay identity purpose)
U.S. v. Duncan (prosecution can introduce insurance records that contain hospital records under business records exception
where hospital relies on the hospital records contained therein. No requirement that record be created by business in possession)
(seems inconsistent w/ Lutz)
Williams v. Alexander (where plaintiff admits to doctor that defendant is not liable, the statement is not admissible b/c doctor’s
do not regularly record statements of liability in the course of business)
Hahnemann University Hosp. v. Dudnick (computer records admissible)
Potamkin v. B.R.I. (computer records inadmissible when not created in the regular course of business, but for litigation)
Palmer v. Hoffman (business record showing RR is not liable is inadmissible b/c its primary utility is in litigating, not
railroading)
Note: Under Advisory Committee notes, Palmer is still good law, but courts usually define it to these facts
Lewis v. Baker (where railroad has statutory duty to generate accident reports, such reports are admissible)
FRE 803(8)
Public Records
FRE 803(22)
Judgment of
Previous
Conviction
Sana v. Hawaiian Cruises (3 levels of hearsay) (where business record of defendant is offered against defendant, it is more
likely admissible as a business record b/c party offering the evidence did not have opportunity to falsify it. Does not matter if it
was made in prep. Of litigation since it is against the interest of the party who created it)
[Sana told sailors: “I feel ill.” → state of mind
Sailors told insurance company what Sana said. → admission of a party opponent
Insurance company offered as business record → business record exception
Beech Aircraft Corp. v. Rainey (as long as the report
Foundational Requirements
contains factual findings, opinions and conclusion based on
From a public office or agency, setting forth
these facts are also admissible)
(A)—Routine activities
U.S. v. Oates (no other hearsay exception can be used to

Payroll, accounting records, organizational charts,
admit police reports otherwise inadmissible under the public
minor stuff
records exception) (Chemist has law enforcement duties)

No limit on introducing this evidence
U.S. v. Rosa (medical examiner does not have law
(B)—Matters observed pursuant to duty imposed by law
enforcement duties)

Law enforcement reports not admissible against D in
criminal cases, unless they are routine, nonOates Exception (Irish Gun Case)
adversarial observations (Majority View; Grady)
U.S. v. Grady (if police reports is routine recordkeeping,

They are admissible D against government even
ministerial, and non-adversarial, it is admissible)
though language doesn’t say so

Must ask whether report was prepared by person w/
Law Enforcement Reports
law enforcement duties
Majority View: law enforcement report inadmissible under

Likely to be reporting requirements
public record exception may be admissible under hearsay
(C)—Factual findings resulting from investigatory reports made
another hearsay exception provided witness is available for
pursuant to authority granted by law
cross examination

Allowed in all civil cases and against government
Minority View (Oates, 2d Cir.): Law enforcement reports

“facts” embodies opinions and conclusions—so called
inadmissible under public record exception inadmissible
evaluative reports—Beech
under any other hearsay exception

Opinions must be based on facts—Beech

And facts must be gathered from investigation
803(10) Absence of public record or entry
Unless Clause
“Unless the sources indicate lack of trustworthiness”
Majority View: This caveat applies to all reports under 803(c)
Minority View: This caveat only applies to subsection C
Stroud v. Cook (where judgment of prior conviction shifts

Only applies to prior felony convictions and guilty pleas to
burden to D in civil case under state law, burden-shifting
felonies
nature amounts to a substantive law and must be allowed

Does not apply to misdemeanor convictions or nolo pleas
under Erie)
to felonies or misdemeanors
7

Guilty pleas to misdemeanors may be an admission of a
party opponent

Civil judgments not admissible either b/c not convictions

Conviction can only be offered to prove a fact essential to
sustain the judgment

In a criminal case, prosecution can’t offer convictions
against anyone other than the accused, unless for
impeachment purposes

Court transcripts aren’t admissible here, but can come in
under a number of other exceptions
Permits litigants to introduce statements in professional publications  matters of history, medicine, or other science or arts so
long as someone lays foundation that treatise is reliable authority in the field. For purpose of proving truth of matter asserted.
Minority View: judgment is a public record under
FRE803(8)(A)
Majority view: FRE803(8)(A) routine activities apply only
to executive agencies.
FRE 803(18)
Learned
Treatise
Unavailability
Definition
FRE 804 Unavailability Hearsay Exceptions
Unavailability as a witness" includes situations in which the declarant—
(1) is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant's
statement; or
(2) persists in refusing to testify concerning the subject matter of the declarant's statement despite an order of the court to do so;
or
(3) testifies to a lack of memory of the subject matter of the declarant's statement; or
(4) is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or
(5) is absent from the hearing and the proponent of a statement has been unable to procure the declarant's attendance (or in the
case of a hearsay exception under subdivision (b)(2), (3), or (4), the declarant's attendance or testimony) by process or other
reasonable means.
FRE 804
Exception for
Former
Testimony
FRE 804(b)(3)
Statement
Against Interest
Collateral
Statements
A declarant is not unavailable as a witness if exemption, refusal, claim of lack of memory, inability, or absence is due to the
procurement or wrongdoing of the proponent of a statement for the purpose of preventing the witness from attending or
testifying.
Travelers v. Wright (Minority View)
Foundational Requirements
Broad Interpretation of Predecessor in Interest
(1) Witness must be unavailable 804(a)
In civil case for insurance fraud, statements of witnesses in
(2) Opportunity to develop the testimony
criminal arson case against brother are admissible b/c brother (3) Similar motive (ie identity of issues)
had the same motives in cross examining them
(4) Identity of Parties
U.S. v. Salerno (grand jury testimony cannot be introduced
Party who the evidence is being offered against must be
against the government b/c prosecution does not have similar
identical or in a civil case a predecessor in interest
motive at grand jury and trial)
Strict Construction of Predecessor in Interest Requires Privity
McKelvey v. General Casualty (Ohio court finds that
Statement Against Interest
admissions of embezzlement are statements against
(1) Must be aware that statement subjects them to pecuniary,
pecuniary interest because it must be paid back despite
financial, civil, or criminal liability at the time it is made
possible motive to falsify)
(2) Does not have to be under oath
(3) Do not confuse these with admissions of a party opponent
o Statements Against Interest can be made by any
person.
o Statements Against Interest have to be an actual
incriminating admission
o Does not have to be offered against a party. Can be
offered on your own behalf.
o Personal knowledge required on some level. Not as
liberal in this regard.
o FRE804(b)(3): self-inculpatory statement by declarant
cannot be offered by accused to exonerate absent
corroborating facts to clearly indicate trustworthiness
o Defendant’s testimony not enough to
o Does not apply if prosecution offers to inculpate
def.
U.S. v. Barret (court determines that neutral looking
Statements Against Interest Containing Two Parts
statement is indeed self-inculpatory and admissible b/c it
1. Contains self-inculpatory=admissible
strengthened the impression that he had inside knowledge of
2. Contains non-self-inculpatory statements (either
the crimes)
neutral and self-serving statements)=inadmissible
8
U.S. v. Williamson (non-incriminating self-serving
statements inadmissible even if part of a general selfinculpatory statement)
FRE 804(b)(2)
Dying
Declarations
FRE 803(1)
Present Sense
Impression
FRE 803(2)
Excited
Utterance
FRE 803(3)
State of Mind
Residual
Exception
FRE 807
Collateral self-serving statements are inadmissible
Is it collateral?

Does it provide context to broader statement against
interest?

When entire statement is taken as a whole is
seemingly collateral part self-inculpatory? ie does the
mention of another person implicate the declarant in a
criminal conspiracy?

Does statement demonstrate personal knowledge of
crime

If statement is self-serving or blame shifting it is
inadmissible
State v. Jensen (allowing doomsday letter implicating
Statements under belief of impending death
husband as a dying declaration)
Foundation Requirements
1. Unavailability
2. Prosecution for homicide or civil action
a. According to congress there is an exceptional need in
homicide cases and allow them in civil cases since
freedom is not at stake
3. Statement by declarant while believing death was
imminent
a. Unlike some jurisdictions does not actually have to die
under FRE
4. Must be regarding cause or circumstance of what declarant
believed to be impending death
Hearsay Exceptions: Availability
Lira v. Einstein Medical Ctr. (in contrast with this PA
Foundational Requirements
ruling, a statement made by a doctor during examination can
1. Must describe or explain an event or condition
be a present sense impression however it virtually never an
2. While declarant is perceiving it or immediately
excited utterance)
thereafter—Close in time proximity required
Foundational Requirements
1. Startling condition
2. Statement must be made under the stress/excitement of the condition (relaxed temporal limit)
3. Event/condition caused stress/excitement
4. Statement must relate to event/condition
Adkins v. Brett (in alienation case, statements of wife that
803(4) The existing mental, emotional, or physical condition
she prefers another man are admissible however statements

Must be a statement made by declarant about their
about their past escapades are not → statements of memory
own state of mind
or belief are inadmissible)

Useful to show intent
Mutual Life Ins. Co. v. Hillmon (letters admissible to prove

Never admissible if it only reflects on another
future intent of declarant despite reflecting on conduct of
person’s conduct
another)

Admissible to show anybody’s statement of mind, not
U.S. v. Shephard (statement that her husband poisoned her is
limited to a party
retrospective statement of memory or belief and inadmissible Statements that prejudicially reflect on conduct of another
under statement
person or req. conduct of another person for fulfillment of
U.S. v. Pheaster (statement that kidnapped decedent was
declarant’s intent.
intended to meet defendant in parking lot admissible despite
Majority View: Admissible under Hillmon Doctrine.
showing conduct of another person)
Minority View: Inadmissible see House Committee Report
Zippo v. Rogers (surveys and call-ins re consumer confusion
are not hearsay. Even if they were they would fall under
803(3) exception. Surveys come in under business record
exception. Questions about survey methodology go to its
credibility.
Residual Hearsay Exception
Turbyfill v. Int’l Harvester Co. (allowing defendant to admit Foundation Requirements
account of employee re accident at a car lot despite the fact

Equivalent circumstantial guarantees of trustworthiness
that it was a near-miss for several other hearsay exceptions)

Material fact

More probative than any other evidence procurable by
reasonable efforts

Interests of justice
9
Confrontation
Clause Standard
“Unavailable”
“Opportunity to
Cross-Examine”
“Testimonial”
“Evidence”
Other 6th
Amendment and
Due Process
Issues
Forfeiture

Advance notice required
Near Miss Doctrine

Some argue courts should only use 807 for situations not
considered by Congress

If near miss exception is amorphous, doctrine does not
apply

Grand jury testimony always fails the obviously applicable
former testimony exception. Grand jury testimony existed
at time of FRE

Nonetheless courts often admit reliable grand jury
testimony under 807

Crawford has chilled this in criminal cases b/c of
confrontation clause concerns
CONFRONTATION CLAUSE
Old Standard—Two Pronged Approach
Foundational Requirements
Ohio v. Roberts (1965)
 Requires defendant and accusers be present at trial
1. The prosecution must either produce the declarant at
 To learn what is being offered against him
trial or it must demonstrate the declarant’s unavailability  Face-to-face confrontation
2. If #1 is satisfied, then adequate indicia of reliability is
 Cross examination
presumed as long as it falls under firmly rooted hearsay
 All hearsay in criminal cases raise confrontation clause issue
exception. If it is not a firmly rooted hearsay exception,
 Courts have struggled to balance confront. clause and hearsay
it can be admitted if there are particularized guarantees
exceptions
of trustworthiness.)
*Note: The Confrontation Clause does not bar the use of
New Standard—More Burdensome Approach
testimonial statements for purposes other than establishing the
Crawford v. Washington (2004)
truth of the matter asserted
1. “Testimonial” hearsay is not admissible unless the
*Note: Brutton doctrine does not allow admissions against codeclarant is unavailable and the defendant had a prior
defendants. However, declarations against interest might be
opportunity for cross examination.
admissible if non-testimonial
FRE 804(a) definition of unavailable is helpful, but not dispositive here
Opponent needs to be able to challenge testimony when it is made
Davis v. Washington (2006)
1. Statements made to a 911 operator become testimonial
once the ongoing emergency ends.
2. The Confrontation Clause does not apply to nontestimonial hearsay
3. Different parts of the phone call may or may not be
testimonial hearsay
Hammon v. Indiana (2006)
1. A crime scene investigation yielded testimonial
responses as it was related entirely to past conduct and
in a formal setting to learn facts
Melendez-Diaz v. MA (government has to provide defendant
an opportunity to cross examine even scientific witnesses)
Situations and Requirements of Testimonial Statements
-A solemn declaration for the purpose of proving or establishing
certain facts
-Police Interrogations—“what happened? inquiries” and when
the ongoing emergency has ended
-prior testimony at a preliminary hearing
-prior testimony before a grand jury
-prior testimony at a former trial
-dying declarations given to law enforcement personnel where
the speaker intends the statement to be used in an investigation
The Confrontation Clause applies to all evidence, not just the
evidence that is accusatory. Ask whether an objective witness
would know that this is evidence to be used in a prosecution.
Holmes v. SC (a state evidence rule barring introduction of
Defendant must not be deprived of a meaningful
evidence of third party guilt if forensic evidence against
opportunity to present a complete defense.
defendant is strong enough is overturned as arbitrary)
Holmes and Green should be read very narrowly to
Green v. GA (a state evidence rule bars defendant from cross circumstances where evidence rule is very arbitrary and
examining his co-defendant is overturned as arbitrary)
evidence is very meaningful and trustworthy.
*Other valid reasons include relevance, prejudicial, and
confusion
FORFEITURE OF OBJECTIONS
Giles v. CA
Facts: defendant killed his girlfriend after she reported to the police a domestic violence report
Holding: Only by showing intent to procure unavailability can the confrontation right be abridged. Thus, if the defendant killed
his gf to prevent her from testifying, then he forfeits his confrontation right.
*No domestic abuse exception. However, in domestic abuse cases it will be easier to show procurement b/c the whole point of
domestic abuse is to isolate the victim and prevent them from getting help.
*Prosecution must show that the accused acted purposely to prevent a witness from testifying
10
Fighting Fire w/
Fire
FRE 607 Who
May Impeach
Impeachment by
Contradiction
FRE 608
Evidence of
Character and
Conduct of
Witness
FRE 608(b)
Specific
Instances of
Conduct
When party succeeds in admitting inadmissible evidence, can the opposing party introduce inadmissible evidence to counter it?
Courts take widely diverging approaches
o Some courts say yes some say no
o Some courts require objection to allow party to fight back US v. Kristiansen (failure to object precludes opp. to fight w/ fire
o Some courts say even if you do object party cannot fight back if opposing parties evidence was not prejudicial
o Some let trial ct decide w/ broad discretion
IMPEACHMENT & REHABILITATIONS: CROSS-EXAMINATIONS
Proper Bases for Impeachment
U.S. v. Hogan
Facts: Plaintiff put a witness on the stand who had confessed  Perception
his involvement in a drug ring initially, but then lied twice
 Memory
about his aforementioned involvement. He is called by the
 Bias (motive to lie)
prosecution solely to impeach his testimony w/ prior
 Prior testimony (impeachment with prior inconsistent
inconsistent statements.
statement)
Holding: Prosecution may not call a witness for the primary
 Prior convictions
purpose of impeaching him with otherwise inadmissible
 Character for truthfulness or untruthfulness
hearsay testimony
 Contradictory witness
*Notes: Note that there is a difference btw prior inconsistent
statements, former testimony, and prior statements. Prior
statements under 613 do not require under oath or prior
opportunity to cross and do not come in for the truth of the
matter asserted.
Rule: Impeachment by extrinsic evidence cannot be done on
Two Ways
1. Collateral Issues: Impeacher is constrained to
collateral issues but only principle issues.
impeaching a witness solely on cross-X  bound by
Principle issues  issues bearing strongly on a claim or defense
witnesses answers
2. Principal Issues: Introduce extrinsic evidence to achieve
Purposes behind the rule
impeachment (bias and lack of capacity are always
1. Confusion of the jury. Jury needs to focus on whether he
principal issues)
was there in July not June.
2. Waste of time
State v. Oswalt (a statement that defendant had been at
3. Unfair to witnesses to impeach them on collateral issues
witness’s restaurant for the past couple months could not be
with extrinsic evidence.
impeached by contradiction with a policeman’s statement that 4. The effect would be a witness not prepared to answer
he interviewed the defendant in Seattle a month prior)
collateral issues, which would unfairly undermine his
U.S. v. Copelin (prosecution was allowed to impeach the
credibility.
defendant on his statement that he’d never seen cocaine
before w/ the fact that he had failed 3 prior drug tests because
recognition of coke is relevant to the drug charge)
Character Impeachment
Permissible Evidence
-Character for truthfulness is always at issue. FRE 404(a)(3)
1. FRE608(a) Evidence regarding reputation or opinion is
allows character evidence as provided by 607, 608, or 609
allowed but must refer to character for untruthfulness.
-Form of extrinsic evidence will only be opinion or reputation
Reputation or opinion as to character for truthfulness can (on collateral matters).
only be rehabilitated by reputation or opinion evidence
-Specific instances of conduct (re collateral matters can only be
after it is attacked.
elicited intrinsically on cross)
2. FRE608(b) Specific instances of conduct  can only be
Timing is critical in this matter
elicited on cross and must be relevant to truthfulness.

Must wait until character for truthfulness is attacked
They cannot be proven with extrinsic evidence.
before it can be rehabilitated.
3. FRE608(b) Allows prior convictions as permitted under
FRE 609
Requirements for Prior Bad Acts
U.S. v. Owens
Facts: defendant testified that the shooting of his wife was an 
Prior bad acts may only be proved intrinsically on crossaccident. On cross-examination, the prosecutor brought up
examination, not by extrinsic evidence
misstatements on his warrant officer application.

Only those prior bad acts that are probative of
Holding: this is permissible b/c the misstatements were
untruthfulness may be brought up
likely made to receive a promotion and pay increase

Can never offer specific instances of conduct to show
U.S. v. Saada 2000 (prior bad acts of the deceased witnesses
truthfulness unless it some weird situation where you want
may not be introduced because doing so would be extrinsic
to show that the opposing parties witness is truthful on
evidence. The only way to impeach him on prior bad acts is
cross.
cross examination, which is impossible)
11

FRE 609
Impeachment by
Evidence of
Conviction of
Crime
U.S. v. Sanders 1992 (holding that impeachment with a prior
conviction that is too similar to the current charge should be
disallowed as too prejudicial)
Factors To Consider:

Time

Veracity

Similarity

Importance of Testimony

Credibility
U.S. v. Wong (judges have no discretion to exclude crimes of
dishonesty)
U.S. v. Brackeen (armed robbery is not a dishonest crime as
it is not a crime of deceit)
The court may block any attempt to impeach w/ a prior bad
act
*Note: Arrests are not prior bad acts—too ambiguous
Impeachment by Convictions of a Crime

Much easier to impeach w/ felony conviction than other
bad acts.

Witnesses other than the accused receive FRE 403
balancing of their felonies (Green Bock)

The accused as a witness receives enhanced balancing of
his felonies

Automatic admissibility of any prior conviction requiring
an act of dishonesty or false statement as element of the
offense

Ten-year old time limit for prior convictions unless it is in
the interest of justice.
*Crimes of Deceit: criminal fraud, false pretense,
embezzlement, perjury, subornation of perjury.
Luce v. U.S. (holding that to raise and preserve for review the claim of improper impeachment with a prior conviction, a defendant must testify)
Ohler v. U.S. (defendant may not remove the sting of his prior conviction on direct; he forfeits his right to appeal the judge’s prior decision that the
conviction was admissible)
A witness’s religion cannot be used to enhance or impair their credibility
Religion
A witness may be impeached if they believe they are the reincarnation of Jean Harlow outside of any religion
FRE 610
Coles v. Harsch (at the common law, an extensive
Foundational Requirements
FRE 613
foundation was needed before impeaching a witness with his 
Impeach or
Must give the non-party witnesses a chance to remember
prior statements)
Rehabilitate by
their prior statement
Prior Statements Tome v. US (1995) (A party can only use a prior consistent

Defendant does not need any foundation
statement to rebut a charge of improper influence or
motivation if they were made before the improper influence
or motivation.)
US v. Abel (SCT 1984) (extrinsic evidence appropriate to
Impeaching for
Extrinsic evidence can always be used
FRE608(b) only limits extrinsic evidence to impeach for
Bias, Veracity or impeach member of Aryan brotherhood for bias in trial of
gang member. This is not impeachment for truthfulness but
untruthfulness. Bias, veracity, and capacity are never collateral
Lack of
for bias which allows for extrinsic evidence.)
matters.
Capacity
U.S. v. Lindstrom (the impeachment of the witness w/ her
*Note: These are non-character purposes. ie Capacity (ability)
psychiatric condition should have been allowed b/c it goes to to tell the truth, is different from willingness to the tell the truth
her capacity to tell the truth and provides a reason for her to
fabricate her testimony against the defendants)
See Saada (extrinsic evidence of a hearsay declarant's prior
FRE 806: A hearsay declarant is a witness only impeachable to
FRE 806
bad acts are not admissible for impeachment purposes even
the same extent they would be were they present at trial.
Impeachment of
when those declarant is unavailable to testify)
Declarant
Impeachment Review

May introduce extrinsic evidence if the issue is not collateral

As long as prosecution is “surprised” by turncoat witness the court will let them be impeached. But if it is made under oath w/ prior opportunity
to cross there will be no Hogan problem b/c it is not hearsay under FRE 801(d)(1)

Only statements made before the arrest are allowed because that is when an improper motive/influence to fabricate arose.

Unlike prior inconsistent statement by witness under 801(d)(1) does not have to be made under oath. If its is offered under 801(d)(1), it is
substantive evidence that can be offered for the truth of the matter asserted. If offered for impeachment purposes under 613, limiting instruction
is appropriate.
EXPERTS
Commonwealth v. Holden (witness cannot testify as to his
FRE 701 Opinion Testimony by Lay Witness → opinion
FRE 701
opinion concerning why the defendant winked at him)
were generally not allowed but this rule liberalizes that doctrine
Opinion
1. based on perception of witness
Testimony by
Virgin Islands v. Knight (permissible for lay witness to
2. helpful to understand witness testimony
Lay Witness
describe a shooting as an accidental discharge. It would be
3. not based on scientific or technical knowledge
too difficult to describe what circumstances this entailed)
Police Officer Witness in Knight:
(1) not rationally based on perception b/c he was not present
(2) helpful but only if it is offered based on expertise since he
12
was not present therefore this is not permitted by FRE701(c)
and must fit under FRE702.
(3) Cannot avoid extensive expert disclosure, qualifications, and
reliability requirements of FRE 702 by offering expert as lay
witness. Same witness can testify as a lay witness and an expert
but expert opinions must be screened for admissibility under
702.
FRE 702 Expert
Testimony
State v. Odom (in drug distribution case, testimony of expert
that amount of drugs in possession was consistent with intent
to distribute is allowed. This is helpful to lay jury unfamiliar
with drug trade and while it mirrors statutory language, here
the statutory language uses common vernacular)
U.S. v. Scop
1. Where expert’s opinion of defendant’s conduct parrots
exact statutory language in complex securities fraud case this
is an inadmissibile legal conclusion
2. Unlike Odom, not commonplace language but a legal term
of art. This usurps role of jury.
3. Witness improperly instructed jury on credibility
assessment of another witness. May rely on another witness
in forming opinion, but jury can make their own credibility
determinations.
FRE 703 Bases
of Expert
Opinion
Testimony
FRE 704
Ultimate Issue
The
Gatekeeping
Ingram v. McCuiston (must not run around hearsay rules by
disclosing basis of expert opinion w/o court approval.
Cannot ask expert to rely on assumptions contrary to
undisputed facts.)
U.S. v. Brown (DEA agents can rely on statements of other
law enforcement officers since this is reasonably relied on by
experts in the field) (this may violate Crawford)
U.S. v. Tran Trong Cuong (experts may not parrot the
opinions of other experts but rather must form their own
opinions. Doctors do not typically rely on medical reports
prepared for litigation)
People v. Gardeley (law enforcement may rely on statements
of criminals)
U.S. v. Kristianson 704(b) allows would or could questions
but not whether particular defendant did appreciate
wrongfulness of conduct
Daubert v. Merrell Dow (overrules Frye test)(approving
flexible approach to admitting expert testimony in which trial
Examples of Permissible Opinions (See Advisory Committee
Notes)
(1) Appearance of person or things
(2) Manner of conduct
(3) Size of place or thing, etc.
FRE 702 Expert Testimony
1. Assist trier
2. Qualified as expert by knowledge skill experience training
or education
3. Daubert gate-keeping function of ct to ensure reliability
a.
Testimony is based on sufficient facts/data
b. Testimony if the product of reliable principle and
methods AND
c.
W has applied the principles/methods reliably to the
facts of the case
Specialization
Majority View: Liberal approach in which experts can testify
about anything in their field, ie. Dr. can testify anything medical
Minority View: Narrow approach in which expert can only
testify about matters within field of specialization, ie. Surgeon
cannot testify about prescription
FRE705
No disclosure of Fact or Data underlying expert opinion req’d
unless demanded by ct
FRE704
Experts can give opinion on ultimate issue in case unless it falls
in 1984 amendment dealing with ultimate issues re crim
defendant mental state
FRE706
Fed judge can appoint a neutral expert
FRE 703 Bases of Expert Opinion Testimony
May rely on personal knowledge, trial evidence, or inadmissible
evidence if it is the type of info experts in the field reasonably
rely on
Not a good idea to give testifying expert trial notes b/c they may
contain work product and under 612 these may have to be
disclosed if they were relied upon in forming the expert opinion
FRE 704 Opinion on Ultimate Issue
Experts can give opinion on ultimate issue in case unless it falls
in FRE704(b). 1984 amendment dealing with ultimate issues re
criminal defendant mental state
Daubert Factors
1. Scientific Testing
13
Function
Best Evidence
Rule
Authentication
court has broad discretion to provide a gatekeeping function)
2. Peer Review/Publication
G.E. v. Joiner (appellate courts should apply abuse of
3. Potential Rate of Error
discretion standard in reviewing trial court on admissibility
4. General Acceptance in Scientific Community
of expert testimony)
*Note: many appellate courts still apply a heightened
Must convince court by preponderance of evidence that
standard to provide guidance to lower courts
underlying facts are reliable, methodology is reliable, and under
Kumho Tire v. Carmichael (trial court does not abuse its
the facts the expert has applied methods reliably considering all
discretion in excluding where expert testimony is
other alternatives
speculative, subjective, and no other expert uses this
Case specific → look at manner expert applied method to the
approach)
facts is reliable
Best Evidence Rule and Authentication
Sirico v. Cotto (copies of X-rays inadmissible. While it is a
FRE 1002 Best Evidence Rule
duplicate it would be unfair to allow it under FRE 1003 b/c
When discussing contents of writing, recording, or photo must
X-rays show subtleties a copy cannot. No valid reason was
either produce the original, a copy, or a good reason why it
given for failure to produce)
cannot be present
Case Note (duplicate of taped jailhouse conversation
FRE 1003: Duplicates
admissible where police destroyed original in good faith to
Duplicate is admissible to same extent as original unless general
reuse the tape)
question is raised as to authenticity of original or it would be
unfair
Herzig v. Swift & Co. (testimony re earnings of partnership
FRE 1004 Valid Excuses
in lieu of partnership agreement does not generate a best
(1) if original is lost or destroyed, unless in bad faith by
evidence problem. Seeks to prove earnings not contents of
proponent
partnership agreement.)
(2) If can’t obtain the original through available judicial
processes
Meyers v. U.S. (in trial for suborning perjury testimony of
(3) If the original is in the possession of the opponent and
witness as to what he heard at a hearing in-lieu of a hearing
opponent is on notice that content will be at issue
transcript does not present a best evidence problem)
(4) The writing/recording/photograph relates to a collateral
matter**Court can ignore the best evidence rule on collateral
People v. Enkstat (pictures of porno admissible in trial for
matter
possession of illegal porn since defendant is a party in
FRE 1005 Certified Copies of Public Records
possession of originals and he is on notice the contents of the FRE 1008
originals will be at issue)
Provides that FRE 1004 is a FRE 104(a) preliminary question of
fact for the judge
U.S. v. Dockins (excluding unauthenticated fingerprint card
Authentication FRE 901, 902, 903
where there is no proof that it came from the Denver Police
FRE 902 Self Authenticating Documents
Department)
-public documents under seal, certified public records, official
publications, newspapers, trade labels, etc.
U.S. v. Hampton (testimony that copy looks like original
FRE 901 Non-Self Authenticating Documents
was sufficient to authenticate it)
If doc is not self-authenticating it is a 104(b) question and
proponent only has to present enough evidence that reasonable
First State Bank v. MD Casualty Co. (telephone that fails
jury could find that it is authentic. Non-exhausting list of ways
authentication under 901(b)(6) is admissible where
provided to show authenticity
circumstantial evidence exists to show it was made)
-witness testimony, comparison by witness, distinctive
characteristics, voice id etc.
Recent amendment to 902(11) and (12) → allows business
records to satisfy authentication and hearsay exceptions
Competency
Competency
Tanner v. U.S. (jury verdict can only impeach itself
regarding extraneous influences, but not internal processes
mental, emotional or drug related)
Competency
Unlike common law no per se compentancy disqualifications
instead most grounds have been turned into grounds for
impeachment → bias of parties or spouses, felony convictions,
etc.
FRE 601→ everyone is competent
FRE 602 → no personal knowledge results in incompetency
FRE 603 → oath or affirmation
FRE 604 → interpreters also take an oath
FRE 605/606 → Only judges and juries cannot testify
Juror testimony FRE 606(b)
14



Jury cannot impeach its own verdict
Jury cannot testify about what went on in the jury room
that affect mind, emotions, or mental processes and
deliberations
However jury can testify re extraneous prejudicial info
Cases
Old Chief v. US  Balancing CHIEF
U.S. v. Owens  Presence is deeper than OWENS Amnesia
US v. Barret  Co-BARRET-al Statements
Williamson v. US  Self-inWILLIAMSONTORY declaration
Johnson v. Lutz  LUTZ OF BUSINESS DUTIES
U.S. v. Vigneau  Western VIGNEAU
Williams v. Alexander  Williams Multiplies Injustice
Palmer v. Hoffman  PALMER Records Useless but see LEWIS
Beech Aircraft Corp. v. Rainey  Conclusions in BEECH craft Leech of facts
U.S. v. Grady  Non-adverGRADYal
U.S. v. Salerno  Saler-NO Grand jury against govt.
Mutual Life Ins. Co. v. Hillmon
U.S. v. Shephard  Shephards Facts Remembered
Crawford v. Washington
Green v. GA  Cross Examine your Co-GREEN
Davis v. Washington; Hammon v. Indiana  Hammon Davis Tesimonial Statements
U.S. v. Hogan  Hogan’s Lies No Surprise
US v. Abel  Always ABEL to impeach for bias extrinsically
U.S. v. Lindstrom  Lindstrom Extrinsic Lack of Capacity
U.S. v. Wong  WONG to exclude crimes of untruthfulness
Ingram v. McCuiston McCuiston Expert Undispution
15