EVIDENCE
EXAM OUTLINE
Professor Tanford, Fall 2002
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GENERALLY
Rules are found in Federal Rules of Evidence (FRE), statutes, common law, and
local custom.
All evidence is admissible if no one objects to it.
FRE 102 – purpose of rules: “fairness in administration, elimination of
unjustifiable expense and delay”, end—“that the truth may be ascertained and
proceedings justly determined”
A. DISCRETION
The judge ultimately controls the admissibility of evidence and does so at her
broad discretion. She makes decisions according to what has been proven in court
(not by what is “true”), except you don’t have to prove the obvious.
Presumption for admissibility: when in doubt, evidence is admissible.
“Sustain” = in favor of the objection/excludes the evidence
“Overrule” = against the objection/include the evidence
FRE 611(a) – court exercises “reasonable control” over questioning so as to make
it “effective for the ascertainment of the truth, avoid needless consumption of
time, and protect witnesses from harassment or undue embarrassment.”
o Cross-examination should be limited to the subject matter of direct or
impeachment of credibility – FRE 611(b). But the judge has discretion to
allow more.
B. MAKING OBJECTIONS
The person making the objection has the burden of persuasion (this is like a minimotion).
Objections must be timely; they must be made at the earliest opportunity (as soon
as the grounds become apparent and there is enough information on the record for
the judge to determine if the rule applies and if foundation is laid). – FRE 103(a)
Objections must be specific: topic (foundation, competency, personal knowledge,
relevancy, opinion rule, hearsay), specific rule (number or name), text of the rule,
point to record – 3-4 sentences at most.
o Specifically what item of evidence you object to
o What rule (name or number or both + text)
o Why?
If the jury has already heard the evidence, you must also make a motion to strike.
Specify what you want striken and why (instruct to disregard).
Response (optional): must also be specific (rule and text, etc.). Need not argue
for the whole thing; keep what you really need.
o Offer of proof – if evidence is excluded, show for the record in some way
the substance of the proposed evidence (specific description). Must be
sufficient indication on the record that the court was informed of what was
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intended (formal offer not required; just enough to show court was
informed). – FRE 103(a)
 Remove jury from the courtroom and question witness as if jury
was present OR
 Submit an oral or written summary of the excluded evidence
outside the hearing of the jury. OR
 Written, signed statement by the witness regarding to what the
witness would have testified.
May object in limine (before trial or before a witness is called). Judge need not
rule on the objection right away but puts court on notice that there is a potential
problem.
II.
COMPETENCY—whether a witness is legally qualified to testify (NOT mental
competency)
 Everyone is competent to be a witness (FRE 601). It is the jury’s job to
determine credibility.
o EXCEPT presiding judges (and their staff) and sitting jurors – FRE 60506. Also, according to state law or other rules, attorney representing a
party (witness advocate rule) and Dead Man’s Statute (cannot testify as to
communications with the dead regarding financing obligations, will, trust,
etc.) may come into play.
 Oath—every witness must take an oath or affirm to tell the truth (no specific form
is required) – in a manner “calculated to awaken the witness’ conscience and
impress the witness’ mind with the duty to do so.” Must demonstrate appreciation
of the duty to tell the truth (FRE 603)
o Young children and severely retarded adults are competent if they
demonstrate that they understand the difference between telling the truth
and a lie, understand the obligation to tell the truth, and have intellectual
capacity to observe, recall, and narrate.
 Must have perceived something important to the case, be able to recollect it, and
able to communicate it. No mental or moral qualifications.
III.
PERSONAL KNOWLEDGE
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A. PERSONAL KNOWLEDGE—A factual event that was perceived through
any of the five senses
A person may not testify to matters about which they have no personal knowledge
(FRE 602)
Must lay foundation: direct testimony from the witness that s/he was present and
perceived what happened or circumstantial evidence based on the witness’s
overall testimony that it is obvious the witness has personal knowledge. Also,
memory and ability to communicate. Any slight opportunity to observe is
sufficient.
o Witnesses are presumed to have personal knowledge of their own thoughts
and acts – no foundation is required.
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o Once you have established personal knowledge of the event, the witness
may testify about the specific details without further foundation for each.
o Cannot know what someone else is thinking; there is never personal
knowledge of someone else’s mental process.
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IV.
B. MEMORY
FRE 612—Writing used to refresh memory. Opposing party may be entitled to
examine the writing and use it to cross-examine (may be redacted to exclude
anything not related to the testimony).
Can use anything to refresh memory (subject to the discretion of the judge).
FRE 803(5)—recorded recollection is not excluded by the hearsay rule. Must
have been made “when the matter was fresh in the witness’s memory and…[must]
reflect that knowledge correctly.”
Hypnosis – Borawich v. Shay, 2d Cir. 1995: totality of the circumstances test.
Factors – for recollection or therapy, subject to suggestion, record of session,
qualified hypnotist, corroborating evidence, highly hypnotizable witness, expert
testimony as to procedures.
RELEVANCY
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A. RELEVANCY
FRE 401—any tendency to make any fact in dispute more or less probable than
without the evidence. Need not be conclusive in and of itself (“brick on a wall”).
Evidence is relevant if it is
o Material (question of law)—does it help prove a contested legal issue (as
defined by the pleadings, case law, or as opened by previous testimony)? –
properly in dispute
o Has probative value (question of common sense)—does it logically help
prove or disprove an issue? – sheds some light on those issues.
FRE 402—relevant evidence is generally admissible and irrelevant evidence is
generally inadmissible.
All evidence usually has some minimum probative value so objections should be
made on FRE 403 grounds.
Trial judge has especially broad discretion in this area.
Evidence that is relevant for one purpose or one party but not another is
admissible but the judge may instruct the jury to restrict its use of the evidence
(FRE 105). BUT if the evidence has low probative value and the jury is likely to
use it for impermissible purposes (prejudice) then a FRE 403 “confusion of the
issues” problem may exist.
If relevancy depends upon some connecting fact, the judge has the discretion to
require the connecting fact to be proven first or admit it on the condition that
“connecting up” occurs at some point (FRE 104(b)). Must be made in good faith
that the condition exists.
B. PREJUDICIAL EFFECT
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Unfair prejudice—arousing jurors’ emotions, biases, or prejudice not already
inherently involved in the case so that they are likely to use the evidence for an
improper purpose. Sex, drugs, religion. (90% of prejudice objections are here).
Confusion of the issues—confusing or misleading the jury about facts or law
Waste of time or needless presentation of cumulative evidence
C. THE FRE 403 BALANCING TEST
Unimportant relevant evidence (low probative value) may be excluded if its
probative value is substantially outweighed by prejudicial effect. Prejudicial
effect must be demonstrably greater probative value.
If it is important, the evidence will be admitted regardless of prejudice.
When making an objection argue both
o Low probative value because the evidence tends to prove an issue of little
importance or is of little help proving an issue AND
o Substantial prejudicial effect for one of the three reasons above.
When responding to a relevancy objection argue both
o Substantial probative value because the evidence tends to prove one of the
central issues in the case and/or is important to proving an issue AND
o The evidence will cause little or none of the prejudicial effects mentioned
above.
D. SPECIFIC RELEVANCY OBJECTIONS
Specific relevancy rule (FRE 407-11) trump the general relevancy test of FRE
403.
These rules exclude evidence when offered to prove liability. If the evidence is
offered for some reason other than to prove liability, the rule of exclusion does
not apply (not the same as being admissible, still has to run the gauntlet including
the FRE 403 balancing test—prejudice is usually whether the jury will use it for
the improper purpose of proving liability).
FRE 407—evidence of subsequent remedial measures. Conduct by defendant in
tort that, after an accident, it took measures (repairs, replacements, upgrades)
designed to reduce the possibility that a similar accident will occur in the future.
o EXCEPTIONS—to prove ownership or control OR to prove the feasibility
of safety measures.
FRE 408—evidence of offers to compromise in civil cases. Offers to settle a
dispute, completed settlements, and statements made during negotiations. A
lawsuit need not be pending, but the controversy must be genuine and “disputed
as to either validity or amount.”
o EXCEPTION—To show the bias of a witness who agreed to testify as part
of a settlement.
FRE 409—evidence that a third party (or its insurance company) offered to pay
plaintiff’s medical and related costs
FRE 410—evidence of offers to compromise in criminal cases. Covers plea
bargains, offers to plead guilty, and statements made during bargaining. Formal
charges must have been brought against the defendant and the discussion must
have been between the defense and the prosecutor (not the police).
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V.
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o EXCEPTION—to show the bias of a witness who agreed to testify as part
of a plea agreement.
FRE 411—evidence that a party carried liability insurance.
o EXCEPTIONS—To prove agency (i.e. A’s insurance covers X proving
that X is an agent of A), ownership or control, bias of a witness (that the
witness is employed by the insurance company).
CHARACTER EVIDENCE
Character = a tendency to usually behave a certain way.
Character evidence is not admissible to prove conduct (FRE 404(a))
o EXCEPTIONS:
 The accused may offer evidence of his own good character and the
prosecution may rebut it
 The accused may offer evidence of a pertinent trait of character of
the victim and the prosecution may rebut it
 The state may prove a homicide victim’s peaceful character to
rebut a claim of self-defense (Π cannot bring up character unless Δ
does).
 Character of a witness (character for truthfulness to rebut
impeachment)
 Character at issue
Character evidence is admissible in unusual situations where there is a material,
disputed issue concerning a person’s character. It may be proved by either
o Reputation—lay foundation that character witness is familiar with the
subject’s reputation
o Personal opinion—lay foundation that witness has know the subject over a
long enough period of time and under sufficient circumstances that they
can form a reasonably reliable opinion. (FRE 405)
Sexual character is covered by FRE 412-15
o Evidence of a rape victim’s sexual character is not admissible (FRE 412).
 EXCEPTIONS (if the defendant gives advance notice)
 Pattern of consensual activity between the victim and the
defendant if the defendant claims consent
 To show another man committed the act with which the
defendant is charged.
 To show that someone other than the defendant is
responsible for the victim’s pregnancy (if visible to the
jury)
 That the victim has brought prior false rape accusations
 When constitutionally required to enable the defendant to
present a defense
SPECIFIC BAD ACTS
Character may not be proven by specific acts (FRE 405(a))
Specific acts of bad character (usually criminal behavior – some states have
created similar rules for civil cases) may be admissible (subject to FRE 403
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VII.
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VIII.
balancing) against a defendant to prove a material issue (genuinely at issue, not
pretext) other than guilt (FRE 404(b)):
o Motive—properly invoked when a prior crime provides a specific motive
for the crime charged, e.g., defendant’s desire to avoid prosecution on
burglary charges was the motive for bribing a potential witness.
o Opportunity
o Intent—properly invoked in a specific intent crime; defendant must
specifically dispute intent.
o Preparation—properly invoked when one crime is committed in
preparation for another.
o Plan—properly invoked only when planning is a material disputed issue
(usually conspiracy or murder in which premeditation is denied).
o Knowledge—properly invoked in possession of contraband cases when
the defendant denies knowledge of the contraband (i.e. what it is).
o Identity—properly invoked when the evidence strongly connects the
defendant to a prior similar crime that is sufficiently distinctive to qualify
as his criminal “signature.”
o Absence of mistake or accident—properly invoked only when the
defendant claims that harm was caused by mistake or accident.
FRE 404(b)—
o It doesn’t matter whether the defendant was ever charged, tried or
convicted of the crime, wrong or act – the question is whether s/he did the
act.
Upon request by the accused, the prosecution must provide reasonable notice of
intent to offer such bad character evidence.
Evidence of specific prior sex crimes committed by the defendant are admissible
“if relevant” upon advance notice to the defendant (FRE 413-15).
No double inference allowed; i.e. act must be the issue (not similar act to act to
issue; just similar act to issue/act).
HABIT AND CUSTOM
Habit = a pattern of always behaving a certain way
Evidence of habit and business custom is admissible (FRE 406)
Foundation:
o The witness has personal knowledge of the person or organization whose
conduct is at issue
o The witness has observed a large number of situations similar to the one at
issue.
o The person or organization has always responded to the situation in a
particular way. It is not enough that the person or organization usually
acts in a certain way.
May be proved by describing specific similar events or by opinion testimony
Witness may testify to their own habits as well as the habits of others.
OPINIONS
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A. LAY WITNESS OPINION
Lay witnesses may testify to their personal opinions if the following foundation is
laid:
o The witness has personal knowledge of the underlying facts (the only part
of the foundation you can prove) – FRE 602(1), 701. Cannot use
scientific, technical or other specialized knowledge – FRE 701(c).
o The opinion is rationally based on that knowledge (in general, an opinion
is rational if it is the kind of opinion that people ordinarily form). – FRE
602(2), 701. Distinguish from average witness if necessary (somewhere
between lay and expert = skilled)
o The opinion will be helpful to the jury – FRE 602(3), 701.
 Relevant
 Whether it will be more helpful for the jury to hear the opinion or
the underlying details. In general, opinions are preferred when the
issue is of little relevance, details are preferred when the issue is of
central importance. There is a lot of judicial discretion in this area.
Opinions about physical appearances (age, sleepiness, etc.) are allowed
Opinions about mental states are not allowed (because no personal knowledge)
Legal opinions are not allowed.
B. EXPERT WITNESS OPINION
Expert testimony and opinions are admissible if the following foundation is laid
(FRE 702)
o The witness is qualified by training or experience (or knowledge, skill, or
education) to be an expert. The foundation for qualifications is satisfied
either by a witness’s formal training or self-taught “experience.” Whether
a witness is qualified is a question of competency so voir dire is permitted.
Voir dire must go to the presence or absence, not the extent of those
qualifications.
o The witness has knowledge of the facts of the present case (FRE 703).
Need not be admissible facts for the expert to base her opinion on them
(but cannot be disclosed to the jury). Experts may rely on any information
they deem relevant.
o The opinion is rationally based on data (“sufficient facts or data”). An
expert’s opinions and testimony must be based on adequate data and be
within the witness’s area of expertise. Under the Daubert (v. MerrellDow) test, the judge must make the decision whether proposed expert
testimony is scientifically reliable – derived from scientific methodology
(neutral scientists in a controlled study), peer review and publication (not
private or proprietary), small rate of error in results (<.05), and widespread
acceptance (educated elite). (“reliable principles and methods and the
witness has applied the principles and methods reliably to the facts of the
case”)
o The expert testimony will assist (be helpful to) the jury
An expert is NOT restricted to personal knowledge, but may base opinions on
second hand information (FRE 703).
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Scientific evidence is admissible if a foundation is laid that the evidence is
scientifically reliable.
HEARSAY
FRE 802—hearsay is not admissible (really 95% of hearsay is admissible)
o Something that actually isn’t admissible – when a police officer on the
stand says “X said Δ did it.”
A. DEFINITION – FRE 801(a)-(c)
Oral statements or written documents (out of court statements).
Evidence does not fit the definition of hearsay if:
o No content (it does not include the content of someone’s out of court
statement) – FRE 801(a). Does not describe out of court declaration;
must be quote or summary of communication.
o The out of court statement is not an assertion – FRE 801(a). An assertion
is a description of an observable fact or event. Questions, commands,
promises, threats, etc. are not assertions. Contracts, deeds, wills and other
purely legal documents are not assertions.
o The statement is not being offered for the truth of the fact asserted, but for
a different material purpose – FRE 801(c). Not offered for its truth if it
explains the future or future act (police search exception—why police
begin to investigate). Res gestae: miscellaneous parts left over; things
that don’t have anything to do with the central issue but ought to be in
anyway (just part of the conversation that can’t be extracted).
o Conduct not intended to communicate – FRE 801(a). The barking of
dogs is not hearsay. Street signs are not hearsay.
Does not apply if laying a foundation.
B. EXCLUSIONS
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1. PRIOR STATEMENTS
The prior out-of-court statements of witness who testifies at trial are exempted
from the hearsay rule if the statements are:
o Inconsistent with the witness’s trial testimony and were made under oath,
subject to cross-examination – FRE 801(d)(1)(a)
o Consistent with a witness’s trial testimony, offered to rebut a charge of
recent fabrication or motive to falsify testimony, and were made before the
motive arose – FRE 801(d)(1)(b).
o Statements identifying someone (usually a suspect) – FRE 801(d)(1)(c)
2. “ADMISSIONS” BY THE OPPOSING PARTY
The prior out-of-court statements of the opposing party are exempted from the
hearsay rule. These are often called “admissions”
o Statements made personally by the opposing party – FRE 801(d)(2)(a)
o Statements made by someone adopted by the opposing party – FRE
801(d)(2)(b). Silence after accusation will be considered adoption of the
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statement, unless made in police custody wherein the Δ has the right to
remain silence.
o Statements by an authorized spokesperson of the opposing party – FRE
801(d)(2)(c)
o Statements by an employee of the opposing party relating to the
employee’s duties – FRE 801(d)(2)(d)
o Statements by the opposing party’s co-conspirators during the course and
furtherance of the conspiracy – FRE 801(d)(2)(e)
Personal knowledge rule does not apply (strict liability concept)
C. EXCEPTIONS FOR UNAVAILABLE DECLARANTS
In criminal cases, the use of incriminating hearsay against a defendant implicates
his 6th Amendment confrontation rights. Most courts therefore require showing
that it is necessary to use the hearsay because the witness is unavailable despite
reasonable efforts to obtain her presence and that the hearsay has indicia of
reliability.
Former testimony – FRE 804(b)(1).
o Declarant is unavailable to testify because s/he
 Asserted a privilege and the court sustained it
 Persistently refused to testify despite a court order
 Has no memory of the subject
 Is dead or so seriously ill that the declarant cannot testify
 Is absent despite reasonable efforts to compel the declarant’s
attendance.
o The former testimony was given at a trial, hearing, or deposition in which
the declarant was under oath and subject to cross-examination
o The party against whom the evidence is offered must have had an
opportunity and similar motive to develop the testimony by direct or
indirect cross-examination at that previous hearing.
Dying declarations (not useful anymore because of modern medicine; can’t lay
foundation – have to have no doubt in your mind that death is imminent)
Statements against interest – FRE 804(b)(3)
o Declarant is unavailable to testify because s/he
 Asserted a privilege and the court sustained it
 Persistently refused to testify despite a court order
 Has no memory of the subject
 Is dead or so seriously ill that the declarant cannot testify
 Is absent despite reasonable efforts to compel the declarant’s
attendance.
o Declarant made a statement that was clearly against her interest at the time
it was made. It may be against monetary, property, or penal interests.
o A reasonable person would not have made the statement unless it were
true, looking at all the circumstances surrounding the statement, including
whether the declarant has a probable motive to make a false statement, and
whether the present controversy had already arisen at the time the
statement was made, and whether it is self-serving.
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o Statements offered to exculpate the defendant must be corroborated and
trustworthy.
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D. EXCEPTIONS NOT DEPENDENT ON UNAVAILABILITY (remember
these are just a few – there are dozens of other hearsay exceptions in the FRE,
common law, and state statutes)
Present sense impression – FRE 803(1)
o The declarant must have been a participant in or witness to a material
event (personal knowledge requirement)
o The statement must describe or explain the event. It cannot be a narrative
of past events.
o If it is in opinion form, it must be rationally based on perception and
helpful to the jury
o The statement must have been made while the event was happening or
immediately thereafter.
o Most jurisdictions require corroboration that the event happened.
Excited utterance – FRE 803(2)
o A startling or unusual event happened. Most states require some
corroboration.
o Declarant was a witness or participant
o Declarant was placed in a state of extreme excitement by the event.
o The statement relates to, describes, or explains the startling event
o The statement was made spontaneously, without thinking, not in response
to a question
o The statement was sufficiently contemporaneous with the event so that
there was no time for reflection and the person was still under stress.
There is no fixed time limit. – continuous stress (somewhere between 1530 minutes courts start to get suspicious unless there are unusual
circumstances such as isolation).
o If the statement contains an opinion, it must be rationally based on
perception.
Statement of mental condition – FRE 803(3)
o Foundation
 The statement describes the declarant’s mental condition or
emotional state
 The statement was made contemporaneously with the feeling or
emotion
o The declarant’s state of mind must be a material issue in order to invoke
this exception
o The Hillmon exception holds that a statement describing and intent to do
an act in the near future is admissible to prove that the declarant later did
the act, if the declarant had the capacity to accomplish it.
o The exception only applies if the statement describes a state of mind and it
is the speaker’s state of mind that is at issue. Statements that affect
someone else’s state of mind by causing a reaction are not hearsay at all,
because they are not being offered for their truth.
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o A statement of memory or belief, used to prove the fact remembered or
believed, does not come within the exception.
Statement of physical condition – FRE 803(3)
o Declarant’s physical condition is at issue
o The statement expresses or describes then-existing pain, malady, or other
physical condition.
Statements made for purposes of medical diagnosis or treatment – FRE 803(4)
o The Statement was made or intended to be conveyed to medical personnel
o It was made for the purpose of obtaining diagnosis or treatment.
Statements about past symptoms made to a “consulting” physician for the
purposes of preparing for litigation probably do not qualify under this
exception.
o Declarant describes own medical history, past or present symptoms, pain
or sensations, or the cause or inception of the problem.
o The information is reasonably pertinent to diagnosis or treatment
o Physical condition must be a material issue.
Business records exception – FRE 803(6)
o Foundation
 The record is sponsored by someone familiar with record keeping
 The record appears regular and unaltered on its face.
 It was made at or near the time of the event or transaction
 The regular practice of the business includes
 The event itself
 The making of the record
 Keeping the record
 It is based on facts within the personal knowledge of employees,
although the entrant need not be the same employee as the one who
had personal knowledge. Statements by non-employees may not
be included.
o The original is not required
o The term “business” includes every business, institution, association,
occupation, and calling of any kind, whether or not conducted for profit.
o Records prepared by a party in anticipation of litigation are not admissible.
Public records exception – FRE 803(8)-(10)
o Foundation
 The record must be authenticated as true and complete
 Testimony of official from the relevant office
 A written certification by an official from the office
 A certification under an official seal
 It was prepared in a public office by a public official
 The record concerns the official activities, observations, or
personnel of a local, state, or federal office or agency
 The source of the information and other circumstances indicate
trustworthiness
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It must report facts within the personal knowledge of employees of
the public office, or that are required by state to be given to public
offices
 It appears regular and unaltered on its face, but the original is not
required.
o Police investigation reports are not admissible against criminal defendants
o Records of vital statistics (e.g. birth certificates) are admissible although
the information does not come from state officials.
o FRE 803(5) – Recorded recollection. Writing containing information about
which the witness previous had knowledge but now has forgotten (such as a
police report) made when the information was fresh in her memory. May be read
into evidence but not offered as an exhibit.
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X.
E. RESIDUAL EXCEPTION – in the “interests of justice”
A residual “exception” gives the judge discretion to admit hearsay not within an
exception but having equivalent circumstantial guarantees of trustworthiness –
FRE 807
o The opponent must have advance notice
o The statement should have circumstantial guarantees of trustworthiness
equivalent to other exceptions
o The statement must be relevant
o The statement should be highly probative and on point
IMPEACHMENT
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A. GENERALLY
All witnesses may be impeached by any party – FRE 607
An impeached witness may be rehabilitated on re-direct examination, but the
witness’s credibility may not be bolstered on direct examination before it has been
placed in issue.
Generally, impeachment is limited to cross-examination and may not be shown
through extrinsic evidence. No bolstering rule: may not bolster a witness in
anticipation of an attack on cross-examination (except in cases of perception,
memory, and ability to communicate).
o Extrinsic evidence: bringing in outside witnesses to testify as to that issue.
May be impeached for bias, interest, or motive to fabricate – psychological/
mental or physical limitations, inadequate opportunity to observe, low salience,
poor memory, bias/self-interest, bad character.
May be impeached by proving the witness has a poor opportunity to observe the
event testified to. This is also considered probative and extrinsic evidence is
permitted subject to FRE 403.
Impeachment generally requires a foundation in which the witness is directed to
admit or deny a specific act
o In meaningful way, direct witness’s attention to the time, place and
circumstances of the prior event before you ask about the prior event
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Rehabilitation—After impeachment a witness may be rehabilitated on redirect.
Permissible rehabilitation includes:
o Evidence similar in kind an scope to the impeaching evidence which
rebuts it
o Explanations that a bias was only temporary or minor and has since
lessened
o Denials of bias, but not that bias is justified
B. PRIOR CONVICTIONS AND BAD CHARACTER
Evidence of bad character for truthfulness is admissible to impeach. Crossexamination only (person must take the stand in order to use this). FRE 609
balancing: prejudice outweighs probative value.
o Reputation, opinion or acts of bad character for dishonesty and
untruthfulness – FRE 608
o Felony convictions within the past 10 years – FRE 609(a)(1)
 Juvenile adjudications are not convictions
 Pendency of appeal is irrelevant
 Felonies are admissible only after balancing probative value on
truth telling tendency against prejudicial effect
o Convictions within past 10 years for crimes of dishonesty and false
statement – FRE 609(a)(2)
 Juvenile adjudications are not convictions
 Pendency of appeal is irrelevant
 Both felonies and misdemeanors admissible. No balancing
required.
A witness may be impeached by showing s/he has a mental or physical defect that
reduces her ability to perceive or remember events correctly. No extrinsic
evidence allowed.
o Poor memory, dementia or Alzheimer’s disease
o Attention deficit disorder
o Poor eyesight or hearing
o Drug or alcohol intoxication at time of the event
A witness may not be impeached for lack of religious belief –FRE 610
C. PRIOR INCONSISTENT STATEMENTS
A witness may be impeached by proving prior inconsistent statements.
This is considered fairly probative and extrinsic evidence may be permitted after
foundation has been laid
o The witness must give direct examination testimony
o Direct the attention of the witness to the time, place, and person to whom
the inconsistent statement was made
o The statement being referred to must be the witness’s own, not the
statement of a third party.
o The substance of the statement should be disclosed to the witness with
sufficient specificity to allow the witness to recall it. However, the
statement need not be shown to the witness
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o The witness is then asked to admit making the statement
o If the witness denies or does not remember making the statement and if
the statement is on a material issue, then the cross-examiner may introduce
the statement itself if the issue is material.
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D. BIAS
Any fact tending to show that a witness has bias for or against a party, an interest
in the outcome or any other motive to testify falsely may be proved
Events that demonstrate bias directly or raise a circumstantial likelihood of bias
are both admissible
Bias is considered the most probative form of impeachment and extrinsic
evidence is allowed.
PRIVILEGE – FRE 501 (defers to other types of law)
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A. ATTORNEY-CLIENT
Confidential communications between a client and an attorney concerning a bona
fide legal matter are privileged
Protects legal advice only (not tax advice, business advice, consulting relatives/
friends).
Agents of both the client and attorney are covered by the privilege
It survives death of the client and by be asserted by the estate
No privilege in lawsuits between the client and the attorney
No privilege if co-clients are suing each other
Physical evidence, fees, and the identity of the client are not privileged.
Waived if client voluntarily discloses parts of the conversation, either in or out of
court or fails to object to someone else disclosing it
Protects a client’s knowledge (the client tells the lawyer where the bodies are
buried) but not the lawyer’s independent knowledge (lawyer goes to the scene,
sees murder weapon, takes it back to office and locks it in a drawer). States vary
on whether the middle ground is privileged – lawyer visits scene, looks at body,
simply verifies what client said and gains no new knowledge.
Crime/fraud exception: communication designed to further future crime or fraud
is not privileged.
B. OTHER PRIVILEGES
o Personal – witness has privilege to testify or not for self (5th Amendment,
executive privilege, journalist, adverse spousal privilege)
o Testimonial—non-witness has privilege to stop another from testifying. Privilege
belongs to the non-witness and must be invoked by her.
o Protects communication but not identity, fee agreement
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