Evidence Table of Contents
INTRODUCTION
1
RELEVANCE
2
PROBATIVENESS AND MATERIALITY
CONDITIONAL RELEVANCE
RISK OF UNFAIR PREJUDICE, CONFUSION, WASTE OF TIME
THE CHARACTER-PROPENSITY RULE
EXCEPTIONS TO THE CHARACTER/PROPENSITY RULE
OTHER ACTS EVIDENCE OUTSIDE THE CHARACTER/PROPENSITY RULE
IMPEACHMENT AND CHARACTER FOR TRUTHFULNESS
REHABILITATION OF WITNESSES
2
3
3
9
12
15
18
23
RELIABILITY
25
COMPETENCY OF WITNESS
THE RULE AGAINST HEARSAY
WHEN IS EVIDENCE HEARSAY?
HEARSAY EXCEPTIONS - OPPOSING PARTY STATEMENTS
HEARSAY EXCEPTIONS - PAST STATEMENTS OF WITNESS AND PAST TESTIMONY
HEARSAY EXCEPTIONS – DECLARANT UNAVAILABLE
HEARSAY EXCEPTIONS – AVAILABILITY IMMATERIAL
THE RESIDUAL EXCEPTION
25
26
26
28
30
32
34
38
CONFRONTATION AND COMPULSORY PROCESS
38
THE CONFRONTATION CLAUSE AND HEARSAY
38
LAY OPINIONS AND EXPERT TESTIMONY
40
LAY OPINIONS
EXPERT TESTIMONY
40
41
Evidence Outline
Introduction
1. Sources of the rules
a. The common law
i. Only source of evidence “rules” before they were codified (1800s?)
ii. Still a source of guidance, but almost totally overruled by statutes
b. The Constitution
i. Sets outer limits/basic rights in evidence law
1. Right against self-incrimination
2. Right to confront the witnesses against you
c. The legislature
i. Each state determines their own rules of evidence within confines of the Constitution
ii. The Federal Rules generally set the standard
2. Sets (sup-categories) of rules
a. Civil v. criminal cases
i. Right against self-incrimination only applicable when would lead to criminal liability
b. Jury v. non-jury trials
i. In jury cases, judge can keep out evidence that is otherwise admissible but might be
predjudicial
ii. In non-jury, judge looks at everything, but only “factors in” what is non-prejudicial
1. Still will never look at privileged material
c. Idiosyncratic rules
i. judges will just kind of make up evidence rules they think exist
ii. sometimes they’ll just use the generic law instead of looking at specific situation
3. Reasons for evidence rules:
a. Efficiency
b. Undue prejudice
c. Reliability
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d. Policy reasons
i. Promote beneficial relationships (Doctors, lawyers, marriages)
ii. Encourage/discourage activities (killing witnesses, fixing harmful property features)
4. Finality of the Jury Verdict R606(b)
a. Prohibits testimony of jurors to impeach a jury verdict
i. Flat prohibition on testimony regarding anything internal such as:
1. Mental state or competence
2. Drug or substance abuse
b. Exceptions to prohibition
i. Extraneous influence effecting the jury such as:
1. Prejudicial information brought to the jury by radio, newspaper accounts
2. Coercion, i.e., threats to family members
c. Treatment of racial/ethnic prejudice (three different approaches):
i. No bar – 606(b) is no bar to testimony by fellow jurors about the jurors racists comments
made during deliberations
ii. The Middle Approach - Rule 606(b) applies, but racism may be a violate of due process,
and it can always be vetted during vior diore
iii. Total Bar - Rule 606(b) prohibits it
d. Policy:
i. Jury must enjoy complete freedom of deliberation and we want stability and finality of
verdicts
ii. Consequence: because we never overturn jury verdicts, the rules of evidence must be
stringent so that those verdicts are not based on an improper basis
Relevance
Probativeness and Materiality
1. R401 Definition of ‘‘Relevant Evidence’’—‘‘Relevant evidence’’ means evidence having any tendency
to make the existence of any fact that is of consequence to the determination of the action more probable
or less probable than it would be without the evidence.
a. “any fact that is of consequence”
i. any fact bearing upon a legal issue on trial (the “substantive law”)
ii. applies to legal defenses to the charges
b. “any tendency”—must be probative of the proposition, low threshold
i. NOT a "more probable than not" standard.
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1. Nor is this a test of “sufficiency” (see conditional relevance)
ii. It is a much broader standard, its just needs to be a brick in the wall it doesn't have to be a
wall in itself. It needs only be a step in the process.
iii. There is no rule against weak or ambiguous evidence – minimal relevance is still relevance
2. R402: Evidence must be relevant to be admitted – see below
United States v. James - James gave gun to 14 year old daughter “to protect her” from James’ boyfriend. Daughter
shoots boyfriend, James charged with aiding and abetting manslaughter. James argues self-defense, requires fear of
immanent violence. This may NOT be proved by boyfriend’s history of violence that is unrelated to James. She
must show she was afraid at that particular time. Defendant wants to bring in evidence that boyfriend bragged to
her about hurting other people, which will tend to show that James had good reason to fear for her life. However,
this evidence may be too predjudicial, as the jury will use evidence of past violence to judge the victim, not the
mental state of the defendant at the time.
Conditional Relevance
1. R104(b) Relevancy conditioned on fact—When the relevancy of evidence depends upon the fulfillment
of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to
support a finding of the fulfillment of the condition.
2. Judge makes an independent determination of “sufficiency”
a. Reasonable jury standard: The evidence of the condition must be established by enough evidence
that a reasonable jury could find that more often than not the condition can be satisfied.
(Huddleston)
3. Guidelines for judicial determination:
a. Must provide foundation of “enough evidence to support a finding” of conditional fact
i. Sufficient evidence supported finding that appellant knew of the events at the bond
reduction hearing, a condition precedent to admission of bond hearing evidence (Cox v.
State)
b. look at the evidence as a package
4. Evidence may be introduced if the linking evidence will be put in later
a. Stricken if not brought in later
5. Policy: Chain of inferences severed if condition does not exist,
a. We must make sure jury relies on true/likely inferences
Risk of Unfair Prejudice, Confusion, Waste of Time
1. R402 Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible—All relevant evidence
is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by
these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence
which is not relevant is not admissible.
a. Irrelevant evidence is never admissible—but there must be a proper (timely, specific, correct)
objection
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i. Guesses are irrelevant
b. This rule does not exclude weak but relevant evidence
2. R403 Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time—
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, misleading the jury, and efficiency.
a. Before exclusion, court should consider limiting factors
i. Jury instructions
ii. Make evidence less inflammatory
iii. Keep out of jury box
iv. Crop the pictures
b. Risk of unfair prejudice
i. Would lead the jury to make an emotional or irrational decision or to use the evidence in a
manner not permitted by FRE
ii. Inflammatory evidence:
1. Photographs
a. May be of a nature to incite passion and inflame the jury
b. Absent clear evidence of adverse effect on the jury, admissibility is in
judge’s discretion (State v. Bocharski)
c. Mitigating steps:
i. Admit black and white: Could make the pictures black and white
to keep the gore down
ii. Instruction has to show what is proved: Jury instructions to show
what they have to prove
iii. Keep images out of jury box: Keep them out of the jury box, so
they ado not just sit there
iv. Can crop a picture: can crop information if there is evidence that
would be prejudicial
2. Computer generated images
a. Risk that the lifelike nature of the images is unduly prejudicial
b. Images are admissible if a “fair and accurate representation” of the
evidence it purports to portray, and is not unduly lifelike, and proper jury
instructions given (Commonwealth v. Serge)
3. Economic Disparity: The trail court should consider weather or not the
defendants ability to counter this evidence should lead to preclusion
4. A victim’s past acts are particularly likely to be prejudicial by putting the victim,
not the defendant, on trial (United States v. James)
iii. Evidence of flight
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1. May be prejudicial if it requires defendant to admit to another crime (US v.
Myers)
a. Evidence likely prejudicial in this case – a limiting instruction is
appropriate here
2. More remote in time the flight from the commission or accusation of an offense,
greater the likelihood that it resulted from something other than feelings of guilt
concerning that offense (US v. Myers)
3. Evidence of NOT fleeing is normally not admissible
4. The probative value of flight depends on evidence to support each of the four
links in the inference chain (Meyers):
a. From defendant’s behavior in fleeing
b. to consciousness of guilt
i. courts tend to presume this far in the inference chain
c. to consciousness of guilt concerning the crime charged, (AND)
d. to actual guilt of the crime charged. Myers
iv. Homosexuality – sexual orientation may be prejudicial depending on the community
c. confusion of the issues, or misleading the jury, or
i. Probability evidence
1. The risk of confusion or misleading the jury almost always outweighs the value of
probability evidence (People v. Collins)
2. Preconditions for probability evidence:
a. Mathematical formula has to be clearly explained to the jury, and not
beyond common sense
b. Requires a level of certainty about the assumptions used in the formula,
and the matters have to be independent
c. Must be clearly explainable to the trier of fact, not beyond the common
juror
d. Efficiency: undue delay, waste of time, or needless presentation of cumulative evidence.
3. Balancing in favor of admissibility—if close, relevant evidence should be admitted. Harm must
substantially outweigh probative value.
a. Tie goes to admission
4. Appellate deference: will usually defer to trial judge as long as there is evidence in the record that trial
judge engaged in balancing—R403 rulings generally do NOT get overturned
a. Trial judges are in a much better place to understand what will improperly influence the jury (US v.
James (dissent))
b. The closeness of the case makes an error more likely to be harmful (US v. Myers)
5. Effect of stipulations:
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a. General rule: A party can put on the evidence that it finds most persuasive, tells the best story
i. Stipulations are rarely required of litigants. Other side can refuse an offer to stipulate.
ii. However, trial judge still must consider R403.
iii. Some evidence can never be let in
b. Exception: When proof prior of conviction is an element of the crime and the prior conviction is
likely to support a conviction on some improper grounds and the defendant is willing to stipulate,
the record of the nature of the prior conviction should NOT be admitted (Old Chief v. United
States)
i. If the actual nature of the crime has no probative value, can be kept out by stipulation
c. Procedure:
i. Parties may offer a stipulation to the other side, which they can agree to
ii. Judge may decide to grant an evidence motion on the condition that the moving party
stipulate to a fact, in order to prevent unfair advantage from an exclusion (United States v.
Jackson)
Old Chief v. United States (1997) – Stipulation (alternative evidence) should have been accepted b/c evidence at
issue was prejudicial. Old Chief charged with crimes of being a felon in possession of a gun & assault with a
dangerous weapon. Government refused offer of stipulation of prior felony conviction (to establish convict status
of prior felony conviction). D did not want fact that it was assault “causing serious bodily injury” to be revealed.
Specialized (policy) Rules of Relevance (automatically fail 403 weighing test)
Subsequent Remedial Measures
1. R407 Subsequent Remedial Measures—When, after an injury or harm allegedly caused by an event,
measures are taken that, if taken previously, would have made the injury or harm less likely to occur,
evidence of the subsequent measures is not admissible to prove
a. [1] negligence,
i. evidnce that hospital changed procedures to make sure patients were properly medicated
before surgery may not be admitted (Tuer v. McDonald)
ii. evidence that negligent employee was fired not admissible
b. [2] culpable conduct, a
c. [3] defect in a product, a defect in a product’s design, or
i. however, measures taken after design/manufacture and before specific incident at issue are
admissible
ii. rule applies to strict liability cases
d. [4] a need for a warning or instruction.
2. This rule does not require the exclusion of evidence of subsequent measures when offered for another
purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or
impeachment.
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a. Feasibility - Can show that defendant had options available to prevent the harm (ie it was possible
then because they are doing it now)
b. Impeachment
c. Ownership/control
3. Evidence of third-party repairs is probably admissible (Circuit Split)
a. However, might be less probative and fail 403 balancing test
4. Does not apply to reports of accident investigations
Compromise Offers and Payment of Medical Expenses
1. R408 Compromise and Offers to Compromise—Evidence of (1) furnishing or offering or promising to
furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or
attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to
prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in
compromise negotiations is likewise not admissible.
a. CANNOT be used to impeach as prior inconsistent statements
b. Exception: if one party uses the prospect of a settlement offer to convince the other to breach a
contract, the other party will be allowed to introduce evidence of the settlement negotiations to
explain its conduct (Bankcard America v. Bancard Systems, Inc)
2. This rule does not require the exclusion of any evidence otherwise discoverable merely because it is
presented in the course of compromise negotiations.
3. This rule also does not require exclusion when the evidence is offered for another purpose, such as
a.
[1] proving bias or prejudice of a witness,
i. P sues driver & insurance company. Insurance company can offer evidence of P/driver
settlement to show bias of driver.
b. [2] negativing a contention of undue delay, or
i. Can use negotiation process to explain why you didn’t bring suit earlier—b/c you were
trying to settle
c. [3] proving an effort to obstruct a criminal investigation or prosecution.
4. Policy: don’t chill settlements
a. People may be interested in peace, not saying they have a weak position
5. Requires an actual dispute or at least an apparent difference of opinion between the parties with regards
to validity or amount
6. Use of compromise statements to impeach
a. May be offered to show a witness’s bias or prejudice
i. May be traditional prejudice (racism, employer)
ii. Also may show conflict of interest
1. Settled with other person for a lot of money, then used them as a witness
b. May NOT be offered to show inconsistent statements or contradictions
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7. No distinction between offeror & offeree—both parties protected
8. Judges may at their discretion bar evidence of third-party compromises to advance public policy (circuit
split)
a. Focus is on whether offers concern “common event” or “same transaction”
9. R409 Payment of Medical and Similar Expenses—Evidence of furnishing or offering or promising to
pay medical, hospital, or similar expenses occasioned by an injury is not admissible to prove liability for
the injury.
a. No dispute required (differs from 408)
b. does NOT protect against admission of guilt or other statements unrelated to the offer to pay
medical expenses
i. narrowly defined: only the words relevant to paying medical expenses are protected
c. people not related to the litigation not covered by the rule
Liability Insurance
1. R411 Liability Insurance—Evidence that a person was or was not insured against liability is not
admissible upon the issue whether the person acted negligently or otherwise wrongfully.
a. Absolute bar only applies to issue of negligence and wrongfulness
2. This rule does not require the exclusion of evidence of insurance against liability when offered for another
purpose, such as [1] proof of agency, ownership, or control, or [2] bias or prejudice of a witness.
a. If a party hired defense counsel because she was told by insurer she would not receive her full
settlement, she will be allowed to give this explanation to avoid undue prejudice (Williams v.
McCoy)
b. Evidence of insurance might be admissible to neutralize D’s assertion of limited funds
c. Punitive damages—Jury needs to decide on appropriate figure & quite common to admit net
worth evidence. Amount of insurance available is relevant to assessing total worth of company &
to understand the pain the company will feel as a result of punitive damages award. Bifurcation of
liability/compensatory damage from punitive damage is appropriate.
3. Policy: Jury will almost always speculate on the possibility of insurance, a limiting instruction will not be
that useful
Pleas in Criminal Cases
1. R410 Inadmissibility of Pleas, Plea Discussions, and Related Statements—Except as otherwise
provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible
against the defendant who made the plea or was a participant in the plea discussions:
a. (1) a plea of guilty which was later withdrawn;
b. (2) a plea of nolo contendere;
c. (3) any statement made in the course of any proceedings under Rule 11 of the Federal Rules of
Criminal Procedure or comparable state procedure regarding either of the foregoing pleas; or
d. (4) any statement made in the course of plea discussions with an attorney for the prosecuting
authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn.
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2. However, such a statement is admissible
a. (i) in any proceeding wherein another statement made in the course of the same plea or plea
discussions has been introduced and the statement ought in fairness be considered
contemporaneously with it, or
i. Rule of completeness—if D offers evidence of something that happened in discussion with
the prosecutor, prosecutor can present evidence to put D’s evidence in context
b. (ii) in a criminal proceeding for perjury or false statement if the statement was made by the
defendant under oath, on the record and in the presence of counsel.
3. Scope of rule:
a. Protects any participant in the plea discussion
b. Applies in all subsequent cases—both civil & criminal
c. May NOT be used to impeach
d. Qualifying as “plea discussions”:
i. Meeting to discuss possible charges qualify as plea discussions
e. NOT qualifying as “plea discussions”:
i. completed pleas of guilty
ii. statements made in connection with completed pleas
iii. unilateral statements by defendant outside the scope of negotiations
1. Must establish negotiations kind of started
iv. Discussions with police officers not normally covered unless prosecution delegated that
responsibility for negotiations to them
f.
Perjury exception: if you just lie, can be used against you
4. Role of Waivers
a. General rule: All waivers are valid—not limited to waivers for impeachment uses.
i. Waiver is only as broad as the D agrees to (i.e. agreement to subsequent criminal cases
only would apply only to criminal cases, not civil cases)
b. Extraordinary, shocking waivers may be INVALID (United States v. Mezzanatto)
5. ONLY protects defendants, not the government???
a. Rejection of a plea offer/immunity from government is VALID evidence of a defendant’s
consciousness of innocence, may be highly probative of his consciousness of innocence (US v.
Biaggi)
The Character-Propensity Rule
1. R404(a) Character evidence generally—Evidence of a person’s character or a trait of character is not
admissible for the purpose of proving action in conformity therewith on a particular occasion, except:
a. R404(a)(1) Character of accused—Evidence of a pertinent trait of character offered by an
accused, or by the prosecution to rebut the same, or if evidence of a trait of character of the
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alleged victim of the crime is offered by an accused and admitted under Rule 404(a)(2), evidence of
the same trait of character of the accused offered by the prosecution;
i. Plain english: IF the accused elects to offer evidence of his character OR that of the
victim, prosecution may rebut with evidence of the character trait (and only that character
trait)
1. Applies when D claims charged act is inconsistent with his character trait
ii. Method: may present reputation or opinion evidence from witnesses but NOT specific acts
iii. Does NOT apply to civil cases
b. R404(a)(2) Character of alleged victim—Evidence of a pertinent trait of character of the alleged
victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a
character trait of peacefulness of the alleged victim offered by the prosecution in a homicide case
to rebut evidence that the alleged victim was the first aggressor;
i. IF D initiates by attacking pertinent character trail of V
1. P may respond by rebuttal evidence of V’s character (limited to same character
trait)
2. P may respond by attacking D for same character trait—(a)(1)
ii. D initiates by alleging V was first aggressor in homicide case (not an attack on
character)
1. P may respond by rebuttal evidence of V’s peaceable character
2. P CANNOT offer evidence of D’s violent or aggressive character—b/c V’s
character has not been attacked
3. In self-defense case that’s not homicide, P CANNOT offer rebuttal evidence as to
V’s peaceable character
iii. Only reputation or opinion testimony may be offered—neither D nor P may use specific
acts
c. R404(a)(3) Character of witness—Evidence of the character of a witness, as provided in rules
607, 608, and 609.
i. R608(a) – reputation or opinion testimony on character for truthfulness
1. Done ONLY with extrinsic evidence
2. Call character witness to testify that target witness has bad reputation for
truthfulness
3. NOT allowed to use specific acts to prove other witness’s character, not even to
show basis for opinion
ii. R608(b) - Inquiry about specific bad acts where there has been no conviction IF the bad
acts reflect adversely on the witness’s character for truthfulness
1. Must have good faith basis for asking question
2. Procedure:
a. Admissibility is in the court’s discretion
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b. NO extrinsic evidence
c. Counsel simply asks point blank if act was committed
d. NO follow up allowed
i. Matter of efficiency – must take the answer of witness
3. General criteria for admissibility:
a. Arrests generally not permissible, just accusations
4. NOTE: this is not the rule for bias, only character for truthfulness
2. Rule: Character/propensity evidence generally not allowed to show conformity with that trait on a
particular occasion, R404(a)
a. Definition: evidence that a person has a particular character trait, introduced to show that the
person acted in accordance with that trait at a particular time
b. Other acts as character evidence:
i. Evidence of defendants’ extensive firearms collection when there is no suggestion they
were used in the events at issue (People v. Zackowitz)
c. Other acts NOT character evidence:
i. Ability or training
1. Evidence that pilot lacked training
2. Evidence that attorney lacked experience
3. Evidence that defendant was poor at driving stick shift
ii. Relevant evidence of state of mind
1. “I had previously been warned that D was a dangerous and violent man”
a. not offered as evidence that D acted in conformity with that trait, or that D
even had that trait, just that witness had reason to be scared
b. offered not as character evidence but to explain fear.
iii. R406 Habit; Routine Practice
1. admissible as evidence of how person or business acted on the occasion at issue in
litigation
2. Critical factors:
a. Frequency of conduct
b. Particularity of conduct
3. Plaintiffs history serviceing hundreds of automobiles and used thousands of cans
of Freon was relevant evidence of habit as to whether the plaintiff used an
immersion heating coil to heat the can of refrigerant on the occasion in question
(Halloran v. Virginia Chemicals)
4. Not enough: “defendant runs stop signs all over town”
5. Enough: “defendant ran particular stop sign several times in 2 week period”
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6. The more you can show lack of volition, the more likely the court is to admit it
d. Evidence that is arguably character evidence is admissible if offered for a not-for-character purpose
(see R404(b)).
Exceptions to the Character/Propensity Rule
3. Exception: character/propensity evidence to show conformity with character admissible in CRIMINAL
TRIAL under certain circumstances, R404(a)(1) R404(a)(2)
a. evidence of character as proving conduct NOT admissible during prosecution’s case in chief
i. exception: in sexual assault or child molestation case, evidence of specific bad acts are
admissible to show propensity toward the relevant conduct
b. defendant has the right to “open the door” to character evidence by introducing it in his defense
i. may provide evidence of his reputation, peoples’ opinion of him in community via
witnesses R405
1. may NOT provide evidence of specific acts
ii. evidence must be to the relevant character trait
1. if charges is for violent crime, cannot show reputation for truthfulness
iii. NOTE: testifying to the facts does not “open the door”
1. Denying culpability does not open the door by itself
2. “I’m always a man of my word”
iv. The door may be “opened” by the defendant inadvertently
1. Doesn’t matter what he intended, just whether the evidence he presents goes to
character
c. Prosecution may respond once door is opened through two methods:
i. cross-examination of defendant’s character witness (Michelson v. US)
1. Procedure: question whether witness heard or knows of specific acts or convictions
or arrests of defendant if they reflect adversely on character trait that defendant
himself has introduced
a. Must take the answers as given, no follow up
2. prosecutor must have decent basis for these questions (good faith standard)
3. prosecutor may NOT prove that the incident questions he’s asking about actually
happened – efficiency concerns
ii. rebuttal reputation and opinion testimony
1. can bring in own witnesses
2. these are subject to cross-examination in same manner as defendants’ (see above)
(Michelson v. US)
d. Evidence of the victim’s character
i. Typically not an issue
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ii. May arise in case of self-defense
1. Defendant has the right to introduce evidence of victim’s violent character as
circumstantial evidence that victim was the first aggressor
a. Done with reputation or opinion testimony
b. Cannot show victim acted violently on a prior specific occasion
c. Exception: can present evidence that the defendant heard of a prior violent
incident involving victim to prove that the defendant had reason to be
afraid of the victim
2. Introducing evidence of victim’s character opens the door to prosecution
introducing evidence BOTH
a. to rehabilitate self-defense person AND
b. to attack defendant’s character
4. Exception: character/propensity evidence to show conformity with character admissible when an element
of a claim or defense, R405(b)
a. Can use specific instances of conduct in addition to opinion & reputation testimony
b. Typical charges requiring character evidence:
iii. Negligent entrustment
iv. Defamation
v. Child custody
vi. Entrapment (most common criminal situation)
1. Requires proof that defendant was not predisposed to commit the crime but for the
inducement of the government
5. Exception: character/propensity evidence to show conformity with character admissible in cases of sexual
assault or child molestation, R413 R414 R415
a. Admissible “on any matter to which it is relevant”
b. Requirements for introduction of prior acts evidence:
i. Accusations are sufficient, provided they are criminal allegations
ii. Convictions NOT necessary
c. NOT admissible under these rules:
i. Character evidence relevant to sexual crimes
ii. Domestic violence evidence (except in California)
d. R414 (child molestation) applies only to sexual crimes involving children under 14
e. Still goes through R403 balancing test
f.
Policy: we hate rapists and molesters, hard to get evidence in these types of cases
g. Procedure:
i. provable ONLY by proof of other offenses
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ii. Disclosure to defendant: prosecutor must provide a summery to the defendant 15 days
before trail or at a later time that the court can allow for good cause
6. Exception: Evidence of a witness’s character may be admissible, R607 R608 R609
a. FRE 607 – Either party may impeach the witness’s credibility
i. This means you can impeach your own witness if they turn against you
b. FRE 608(a) – reputation or opinion testimony on character for truthfulness
i. Done ONLY with extrinsic evidence
ii. Call character witness to testify that target witness has bad reputation for truthfulness
iii. NOT allowed to use specific acts to prove other witness’s character, not even to show basis
for opinion
c. R608(b) - Inquiry about specific bad acts where there has been no conviction IF the bad acts
reflect adversely on the witness’s character for truthfulness
i. Must have good faith basis for asking question
ii. Procedure:
1. Admissibility is in the court’s discretion
2. NO extrinsic evidence
3. Counsel simply asks point blank if act was committed
4. NO follow up allowed
a. Matter of efficiency – must take the answer of witness
iii. General criteria for admissibility:
1. Arrests generally not permissible, just accusations
d. R609 - Criminal convictions of witness
i. Felony or misdemeanors requiring proof of dishonesty or false statement as an
element of the crime are automatically admissible (no balancing)
1. Rule narrowly interpreted –
a. Requires the actual uttering of false words or a breach of trust
(embezzlement)
i. Shoplifting probably does not qualify, no uttering of false words
2. Test is whether the elements of the crime involved dishonesty
a. Not enough that defendant was dishonest in course of crime (lied to
achieve murder, ect)
ii. If crime does not involve dishonesty, inadmissible UNLESS
1. A felony AND
2. Judge in her discretion finds probative value of witness’ credibility is greater than
danger of unfair prejudice to a party
iii. 10-year time limit applies to both categories
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1. If witness was convicted or released from prison more than 10 years ago,
conviction will typically NOT be probative of credibility
2. However, court can let the conviction(s) in if it finds the probative value is
substantial
e. NOTE: this is not the rule for bias, only character for truthfulness
Other Acts Evidence Outside the Character/Propensity Rule
7. Rule: prior acts/wrongs/crimes evidence is permissible for ANY PURPOSE besides showing a particular
action was in accordance with character R404(b)
a. Alternative purposes for evidence of past acts are not exceptions to 404(a), they are simply outside
the rule’s scope
i. R404(b)’s list of non-propensity purposes is NOT exhaustive, includes:
1. Motive, opportunity, intent, preparation, plan, knowledge, identity, absence of
mistake, or lack of accident
b. NOTE: a chain of inferences, even if ultimately for a permissible purpose (ie identity of
perpetrator) is invalid if it relies on other acts to show a character trait
i. IE you cannot show a defendant’s identity by showing he had a lot of guns, which makes it
more likely he is violent, which makes it more likely he committed a violent murder
(People v. Zachowitz)
8. Common alternative purposes for prior acts/crimes/wrongs evidence:
a. Proof of Knowledge
i. A defendant’s guilty plea to a computer hacking crime may be probative of their skill and
ability to commit an earlier crime (PR 3.1)
ii. Prior conviction for dealing drugs NOT admissible to show knowledge of drug trade
b. Proof of Motive
iii. Evidence that defendant was arrested by a particular police officer previously shows he had
motive to murder that police officer in this occasion
c. Proof of Intent
iv. In drug-selling charge, evidence that defendant previously sold drugs at spot where he was
arrested is relevant to his intent to sell while standing at that location this time
d. Proof of Identity
v. Proof of Modus Operandi: 1. Crime is so distinctive that the inference that nobody else could have committed
this crime overcomes the jury’s temptation to engage in propensity reasoning
a. IE sufficiently idiosyncratic
2. Elements:
a. Defendant is sufficiently linked to the prior acts
i. Usually indicated by prior arrest
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b. The connection between the acts is so strong that no one else could have
committed this crime
i. May be shown by highly individualized characteristics
1. Inquiry is highly facts-driven, may be shown by (US v.
Trenkler):
a. Conjuction of several identifying characteristics
AND/OR
b. Some highly distinctive characteristic
ii. May also be shown via knowledge
1. IE there is no one else (or very few people) who have the
requisite knowledge to commit the two crimes
iii. Does not have to be a 100% match
3. Ignoring significant characteristics may be dispositive of an MO claim (Trenkler
dissent)
4. Still do 403 analysis – even if there is an MO link, will the jury improperly rely on
it rather than looking at all other evidence?
ii. “Reverse 404(b) evidence” – defendant may introduce evidence tending to suggest a
different individual committed the offense in question (United States v. Stevens)
1. court conducts the standard R403 balancing test and decides whether to admit the
evidence
2. Because prejudice to the defendant is not a factor… the admissibility of reverse
404(b) evidence depends on a straightforward balancing of the evidence’s
probative value against considerations such as undue waste of time and confusion
of the issues. (United States v. Stevens)
e. Narrative Integrity (Res Gestae)
vi. Evidence permitted when “necessary to do so in order to permit the prosecutor to offer a
coherent and comprehensible story regarding the commission of the crime”
1. Evidence of a defendant’s history of sinking boats was necessary to show why he
used shell corporations and could not obtain insurance in his own name (United
States v. DeGeorge)
a. Evidence limited to his non-disclosure of prior losses, not details or
allegations surrounding them
ii. Prior acts “constitute a part of the transaction that serves as the basis for the criminal
charge”
1. Must be close in time and circumstances
f.
Absence of Accident/Mistake
i. Evidence demonstrates the unlikelihood that the harm in this case was the result of
accident or mistake
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ii. Previously shown motive/disposition to harm:
1. If you threw a knife at your mother before, unlikely that “dropping” axe on her
head was an accident in this case
2. Evidence that you beat dogs previously tends to show that your throwing a dog
into the street was not reflex or accident (PR 3.12)
iii. Acts highly similar or identical to a previous “accident”
1. Guy shoots two separate wives “accidently” while cleaning guns, unlikely
g. Doctrine of chances
i. Evidence shows that it is unlikely a defendant would be repeatedly, innocently involved in
similar, suspicious circumstances (Rex v. Smith)
1. Creates an “inference of design”
2. Death of three former wives by drowning in the bathtub is subject to an inference
of design (Rex v. Smith)
ii. Probativeness is a factor of:
1. The unusualness of the past events
2. The frequency of the past events
3. The similarity of the past events to the current event
h. Common Scheme or Plan
vii. In bank robbery case, car theft can be brought in because part of common bank robbing
scheme
9. Procedure for admission of character/propensity evidence for an alternative purpose:
a. Counsel attempts to introduce evidence of prior bad acts
i. Typically met with an objection by opposing counsel
b. Judge must make a ruling on admissibility of the prior acts/crimes/wrongs
i. Is the purpose for admitting the evidence outside the scope of R404(a)?
1. Is the purpose of the evidence to show conformity with a character trait, or is there
a legitimate alternative purpose?
a. Look for category in common alternative purposes, above
2. Also called the requirement for “special relevance”
ii. Is the probative value of this purpose substantially outweighed by its risk of prejudice?
3. R403 balancing test: is the evidence of acts relevant?
a. More likely to be relevant if within common alternative purposes, above
b. Also, traditional factors apply:
i. Strength of the evidence to the commission of the other crime
ii. Degree the evidence will rouse the hostility of the jury
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iii. Efficacy of alternative proof
iv. Need for the evidence
v. Interval of time between the crimes
vi. Similarities b/w the crimes
4. R104(b) conditional test: did the acts in question actually occur?
a. If there is a conviction, you’re all set
b. Test: can the jury “reasonably conclude that the act occurred and that the
defendant was the actor” (Huddleston v. US)
i. The court has the broadest discretion in making this determination.
ii. The court must look at all the evidence as a whole not
individualized or stovepiped.
iii. Protection against irrelevant evidence in 104(b) and 402, 403, but
not in 404
iv. Can even use evidence of prior act when acquitted of prior act
(Dowling) no double jeopardy violation
c. Judge determines whether JURY could reasonably find by a
preponderance of the evidence that act occurred, defendant was actor
i. Judge does NOT determine whether preponderance standard has
been met
i.
If evidence is allowed in, judge MUST give a limiting instruction, R105
viii. Applies whenever evidence is admitted for one purpose but not another
Impeachment and Character for Truthfulness
Forms of impeachment –
1. R607 – either party may impeach a witness
2. Character for truthfulness, R608 R609 (referenced at 404(a))
a. Criminal convictions of witness, R609
i. Can only come in as court document reflecting conviction
1. Specific facts of crime are barred
ii. Must be punishable by at least one year
iii. Felony or misdemeanors requiring proof of dishonesty or false statement as an
element of the crime are automatically admissible (no balancing)
1. Rule narrowly interpreted –
a. Requires the actual uttering of false words or a breach of trust
(embezzlement)
i. Shoplifting probably does not qualify, no uttering of false words
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2. Test is whether the elements of the crime involved dishonesty
a. Not enough that defendant was dishonest in course of crime (lied to
achieve murder, ect)
iv. If crime does not involve dishonesty, inadmissible UNLESS
1. A felony-grade offense (not necessarily felony?) AND (CHECK THIS – only one
year need?)
a. Crime subject to a sentence of one year or more
2. Judge in her discretion finds probative value of witness’ credibility is greater than
danger of unfair prejudice to a party – 403 test?
v. 10-year time limit applies to both categories
1. If witness was convicted or released from prison more than 10 years ago,
conviction will typically NOT be probative of credibility
2. However, court can let the conviction(s) in if it finds the probative value is
substantial
vi. Effect of pardon, annulment, or certificate of rehabilitation, R609(c) - Evidence of a
conviction is not admissible under this rule if
1. (1) the conviction has been the subject of a pardon, annulment, certificate of
rehabilitation, or other equivalent procedure based on a finding of the
rehabilitation of the person convicted, and that person has not been convicted of
a subsequent crime which was punishable by death or imprisonment in excess of
one year, or
2. (2) the conviction has been the subject of a pardon, annulment, or other
equivalent procedure based on a finding of innocence.
3. Plain English: evidence of conviction barred if
a. Convict found innocent
b. Found rehabilitated and clean record for a year
vii. Juvenile adjudications, R609(d) - Evidence of juvenile adjudications is generally not
admissible under this rule.
1. The court may, however, in a criminal case allow evidence of a juvenile
adjudication of a witness other than the accused if conviction of the offense
would be admissible to attack the credibility of an adult and the court is satisfied
that admission in evidence is necessary for a fair determination of the issue of
guilt or innocence.
viii. Pendency of appeal, R609(e) - The pendency of an appeal therefrom does not render
evidence of a conviction inadmissible. Evidence of the pendency of an appeal is admissible.
b. Specific prior bad acts where there has been no conviction, R608(b)
i. Acts must be relevant to truthfulness (credibility) if true
ii. Must have good faith basis for asking question
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iii. NO extrinsic evidence
1. Only questioning of the witness is allowed
2. “did you fail the polygraph?” is extrinsic
iv. Procedure:
1. Admissibility is in the court’s discretion
2. Counsel simply asks point blank if act was committed
3. Counsel MUST take the answer of the witness
a. May not prove that prior bad acts occurred
b. May not ask about the consequences suffered as a result of the bad acts
i. May ask “did you steal money from your employer?”
ii. but may not follow up to ask “did you tell your employer your
lied?” or “did your employer fire you?”
4. no undue harassment through questioning (R611)
v. Rule: - SEE JACKE OUTLINE
1. Probative
2. Goes to truth and veracity
vi. If defendant is his own character witness – look at rules for this
vii. Permissible bad acts:
1. Generally: Acts that would constitute a crime of dishonesty or false statement
under R609(a)(2)
2. False credit card applications
3. Did you lie about drug use when you applied for government employment?
4. Did you understate your income on your federal tax return?
5. Plagiarizing, faking insanity defense, failure to report political contributions, false
excuses for absences from job, lying about marital status on marriage license,
forgery, bribery, suppression of evidence & embezzlement.
viii. Impermissible bad acts:
1. Prior arrests (just accusations, not acts)
2. Drug use
3. Prostitution
4. “Have you ever smoked marijuana?”
5. litigiousness
ix. May ask character witness about prior bad acts of the defendant/victim, provided all
other criteria are met
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1. “Have you heard [fact relevant to X’s character for truthfulness]?” or May ask
opinion W who opined that X is truthful “Did you know [fact relevant to X’s
character for truthfulness]?”
a. If W admits hearing or knowing of act, can ask: “Did that affect X’s
reputation?” or “Did that affect your opinion of X?”
b. If W denies hearing or knowing of act, denial effectively stops further
cross-examination
c. Reputation or opinion testimony on character for truthfulness, R608(a)
i. Character for untruthfulness evidence by reputation or opinion testimony is admissible at
any time
ii. Character for truthfulness evidence by reputation or opinion may be offered ONLY after:
1. W takes the stand or hearsay statement is introduced (hearsay declarant becomes a
W & can be attacked) AND
2. W truthfulness is attacked
a. Efficiency – why waste time with character if it’s not attacked
iii. Done ONLY with (intrinsic?) evidence
1. NOT allowed to use specific acts to prove other witness’s character, not even to
show basis for opinion
iv. Must define the community, establish it all
1. Usually done in judge’s chambers
v. Procedure: Call character witness to testify that target witness has bad reputation for
truthfulness
10. Prior Inconsistent Statements of Witness, R613
a. Rule: witnesses may generally be impeached by showing a prior inconsistent statement
i. May use intrinsic or extrinsic evidence
b. Limitations:
i. Can ONLY impeach them to extent their statement is inconsistent
ii. Can NOT be evidence of credibility generally (character for truthfulness?)
iii. Can NOT use inconsistent statement as substantive evidence
1. Cannot use inconsistent statement to prove the truth of what the inconsistent
statement says
2. Exception: R801(d)(1): prior inconsistent statements made orally under oath as
part of a formal hearing, trial, proceeding or deposition can come in as substantive
evidence
a. Hearsay exception
c. Contradiction of witness Procedure:
i. Accomplished by introducing extrinsic contradictory evidence
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1. Another witness, documents, or other evidence
2. Evidence must be for purpose of proving that specific testimony is false, cannot be
general credibility evidence (see R608(b))
ii. No requirement to confront witness about their inconsistent statement
iii. Contradiction of cross-examination is allowed, but may be discouraged
d. When Hearsay can be used to show prior inconsistent statement R613
11. Contradiction by Conflicting Evidence:
a. Can bring forward evidence that contradicts the witness which can illustrate lies, and also mistakes
in perception, memory or narration
b. Procedure identical to prior inconsistent statements
i. Most important criteria:
1. Must contradict something actually said
2. Must be limited to showing what they said wasn’t true
12. Bias of the witness:
a. May be shown by intrinsic and extrinsic evidence
b. Most federal courts require that the witness be asked about the bias as a prerequisite to proving it
with extrinsic evidence
i. Efficiency – if they admit, no need for extrinsic evidence
c. Possible sources of bias:
i. Has pending charges against him and therefore incentive to cooperate with government
1. Charges need not relate to same criminal activity that is the focus of trial
d. See motive under 404(b)
13. Sensory deficiencies
a. Anything that could affect perception or memory
i. Eyesight, medical, alcohol/drugs
b. No prerequisite of intrinsic impeachment
14. Prior false accusations of rape
a. NOT barred by the rape shield law
15. Impeachment of hearsay declarants, R806
a. [1] When a hearsay statement, or a statement defined in Rule 801(d)(2)(C), (D), or (E), has been
admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be
supported, by any evidence which would be admissible for those purposes if declarant had
testified as a witness.
b.
[2] Evidence of a statement or conduct by the declarant at any time, inconsistent with the
declarant’s hearsay statement, is not subject to any requirement that the declarant may have been
afforded an opportunity to deny or explain [R613 foundation requirement does not apply]. If the
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party against whom a hearsay statement has been admitted calls the declarant as a witness, the
party is entitled to examine the declarant on the statement as if under cross-examination.
c. Same as if declarant had taken the stand
d. No extrinsic evidence allowed
e. Opposing party may call declarant and cross-examine
16. 613 – procedural uses for hearsay
Rehabilitation of Witnesses
1. R608(a) Opinion and reputation evidence of character - (2) evidence of truthful character is admissible
only after the character of the witness for truthfulness has been attacked by opinion or reputation
evidence or otherwise.
a. W must first be attacked (efficiency rule)
i. Can then call character for truthfulness witnesses to rehabilitate
b. Danger in calling rehabilitation W: impeaching party may now ask rehabilitation W about specific
instances of conduct
2. Prior consistent statements R801(d)(1)(B)
a. R801(d)(1)(B) non-hearsay requires statements to have preceded the motive to falsify
i. Pre-motive NOT required if offered to rehabilitate, as opposed to substantively
b. Prior consistent statements may put inconsistent statements in context
3. Can generally address anything on which they were attacked
a. Bias, improper motive, sensory issues,
4. R106 Remainder of or Related Writings or Recorded Statements—When a writing or recorded
statement or part thereof is introduced by a party, an adverse party may require the introduction at that
time of any other part or any other writing or recorded statement which ought in fairness to be considered
contemporaneously with it.
a. If part of a writing introduced, other party can get the whole thing introduced
The Rape Shield Law, R106
1. Prohibited Uses. The following evidence is not admissible in a civil or criminal proceeding involving
alleged sexual misconduct:
a. evidence offered to prove that a victim engaged in other sexual behavior; or
i. Res Gestae - defendant may not introduce evidence of the exact words he said to victim
during sex, even when critical to his defense narrative (Stevens v. Miller)
1. wants to tell jury he told wife “I know you slept with ______”
2. court limits him to saying he “said something to make her angry”
3. no guaranteed constitutional right to testify on your own behalf
ii. sexual behavior defined:
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b. evidence offered to prove a victim’s sexual predisposition.
i. Sexual reputation to show consent: Evidence that defendant had heard of victim’s sexual
predisposition, and therefore had reason to believe she consented, is probably not
admissible (United States v. Knox)
1. Circuit split on the issue
ii. Specific sexual instances with the defendant: Can show specific incidence of sexual
conduct with the defendant to show the victims consent, or lack of consent when dealing
with the specific matter
1. Can’t necessarily say what was said in these encounters (see Stevens v. Miller)
c. Does NOT bar evidence of prior false accusations of rape
2. Exceptions.
a. Criminal Cases. The court may admit the following evidence in a criminal case:
i. evidence of specific instances of a victim’s sexual behavior, if offered to prove that
someone other than the defendant was the source of semen, injury, or other physical
evidence;
ii. evidence of specific instances of a victim’s sexual behavior with respect to the person
accused of the sexual misconduct, if offered by the defendant to prove consent or if
offered by the prosecutor; and
iii. evidence whose exclusion would violate the defendant’s constitutional rights.
b. Civil Cases.
i. In a civil case, the court may admit evidence offered to prove a victim’s sexual behavior or
sexual predisposition if its probative value substantially outweighs the danger of harm to
any victim and of unfair prejudice to any party.
ii. The court may admit evidence of a victim’s reputation only if the victim has placed it in
controversy.
c. In all cases: evidence of prior false accusations of rape
3. Procedure to Determine Admissibility.
a. Motion. If a party intends to offer evidence under Rule 412(b), the party must:
i. file a motion that specifically describes the evidence and states the purpose for which it is
to be offered;
ii. do so at least 14 days before trial unless the court, for good cause, sets a different time;
iii. serve the motion on all parties; and
iv. notify the victim or, when appropriate, the victim’s guardian or representative.
4. Hearing. Before admitting evidence under this rule, the court must conduct an in camera hearing and give
the victim and parties a right to attend and be heard. Unless the court orders otherwise, the motion, related
materials, and the record of the hearing must be and remain sealed.
5. Prior false allegations of rape NOT barred
a. This goes to defendant’s truthfulness, not sexual propensity, therefore doesn’t implcate rule
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6. Evidence of Bias may come in under the confrontation clause
a. May show that a witness is in a sexual relasionship with a party
b. Brought in under the Huddleston standard (prove condition is true)
Reliability
Competency of Witness
1. R601 General Rule of Competency—Every person is competent to be a witness except as otherwise
provided in these rules.
a. However, in civil actions and proceedings, with respect to an element of a claim or defense as to
which State law supplies the rule of decision, the competency of a witness shall be determined in
accordance with State law.
2. Presumption: every person is competent to be a witness
a. No exception made for mental incapacity or immaturity
b. No mental or moral qualifications for testifying as a witness specified
3. Exception: child witnesses
a. Under some state law, child may not be competent
b. Rebuttable presumption that child is competent
c. Factors:
i. Whether the child can perceive and remember events accurately
ii. Whether she can communicate them intelligently
iii. Whether she understands the differences between truth and falsehoods and the obligation
to tell the truth AND
iv. Whether she can respond intelligently to questions posed on cross-examination.
4. Competency v. Credibility
a. Judge decides competence
i. Drug use may temporarily render W incompetent
ii. Requiring W to take a mental examination is the exception—not the rule
b. Jury decides credibility
i. Mental derangement, where it affects the ability of the witness to observe, remember, and
recount, can got to attack credibility
ii. Prior inconsistent statements go to credibility of witness
iii. Drug use goes to credibility and W’s ability to observe and remember but does not render
W incompetent
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The Rule Against Hearsay
Caution:
1. Court not actually bound by any evidence rules except privilege
a. Basically, they can ignore hearsay rules if it’s really important
When is Evidence Hearsay?
2. R801 Definitions—(c) Hearsay.—‘‘Hearsay’’ is
a.
[an out of court statement],
i. (a) Statement.—A ‘‘statement’’ is (1) an oral or written assertion or (2) nonverbal conduct
of a person, if it is intended by the person as an assertion.
ii. May be either orally, in writing, or through conduct/actions
1. Questions may be assertions
a. “What’s your name?” inadmissible to prove speaker did not know the
other person’s name
2. Indirect assertions
a. “I just spent all morning spalling my retirement home”
i. Indirectly asserts she was planning for the future, therefore likely
did not commit suicide
ii. However, relies on immediate fact that she spent the morning
planning her retirement home, therefore inadmissible
3. Affadavits, gestures can also be hearsay
a. Out of court identifications may be hearsay
iii. The key distinction is the purpose for which the assertion was made
1. 801 – was it intended as a substitute for written words?
2. Two key questions:
a. Did the assertion intend to communicate anything?
i. If yes, is what was communicated an issue at trial?
1. If yes to both, hearsay, otherwise, not hearsay
b. Does the statement’s evidentiary force depend on the sincerity of the
declarant?
i. If no, not hearsay
3. Not hearsay: actions taken with no communicative intent in mind
a. “a man does not lie to himself”
b. captain getting on ship with his family is not a statement for hearsay
purposes IF he was not intending to influence anyone by this conduct
i. admissible to prove captain thought ship was safe
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ii. if captain did this to calm the fears of nervous passengers on
shore, this is a statement, therefore hearsay to prove he thought
ship was safe
4. Not hearsay: nonassertive words
a. probably limited to involuntary expressions (“Ouch!”)
iv. Saying that you said something to someone else IS hearsay
1. “I told the cops that _________”
v. Policy: we’re mostly concerned about sincerity
1. If no reason to think insincere, probably will be let in
b. offered in evidence to prove the truth of the matter asserted.
i. NON-hearsay purposes for out-of-court statements (not barred by hearsay rule):
1. Verbal act or legally operative words
a. creates legal rights, substantive law attaches legal significance because
they were spoken
b. examples:
i. “I offer you a part in my TV pilot” – legal offer to form contract
ii. word of defamation in charge of defamation
iii. words of bribery
2. words used to show an effect on person who heard or read the statement
a. Negligence case: another customer tells manager “there is a banana peel
on isle 3”
i. not hearsay if it is to show that manager was on notice of banana
ii. hearsay if to prove that there was a banana on that isle
b. Sexual discrimination case: defendant says “it wasn’t discrimination, we
heard woman had previously embezzeled”
i. not hearsay if to show that the listener had a good reason not to
hire the woman
3. circumstantial evidence of the speaker’s state of mind
a. Insanity case: witness says “defendant said my name is elvis presley and
I’m back”
b. not hearsay if brought in to prove insanity, defendant’s state of mind
4. Dual purpose
a. If hearsay for one purpose and not another, court does a balancing test
under 403
b. If admitted, probably a limiting instruction?
ii. To come in to show the statement was made, sincerity
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3. Rule: hearsay is inadmissible unless an exception or an exclusion applies
a. Hearsay purpose: to prove the truth of the matter asserted
i. Inadmissible unless enumerated exception applies
Hearsay Exceptions - Opposing Party Statements
4. R801(d)(2) Opposing Party Statements—The statement is offered against a party and is (A) the party’s
own statement, in either an individual or a representative capacity or (B) a statement of which the party
has manifested an adoption or belief in its truth, or (C) a statement by a person authorized by the party to
make a statement concerning the subject, or (D) a statement by the party’s agent or servant concerning a
matter within the scope of the agency or employment, made during the existence of the relationship, or (E)
a statement by a coconspirator of a party during the course and in furtherance of the conspiracy
a. Rule: any statement made by a party is admissible if offered by opposing party
i. only applies to statements offered by other side against the party
ii. must be made by party or representitive
b. No requirement for personal knowledge
i. Not concerned about reliability, just make people accountable for their statements
ii. Statement that man’s wolf bit a child held against him even though he had no personal
knowledge of the source of the injuries (Mahlandt v. Wild Canid Survival & Research
Center)
c. Form of the statement doesn’t matter
d. Can be self-serving at the time it was made
i. “my husband’s death was suicide”
1. self serving to prove you didn’t do it
2. however, still may come in in a life insurance case to show he committed suicide
e. Does not need to be against interest of party making it at time it was made
i. only interest at time of trial matters
ii. distinguish from statement against interest
1. can be in conclusory form
f.
Adoptive admissions: party manifested that it adopted or believed statement to be true
i. Elements:
1. The person heard the statement
2. The person was free to respond to the statement
3. The situation called for a response
4. The person then failed to respond or in a way that he did, he did not manifest his
dissent
ii. Probably not an adoption if statement made by police officer
g. Vicarious party admissions: Admission adopted because of agent/employment relationship
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i. statement by employee or agent admissible IF
1. statement concerns a matter within the agency or employment AND
a. trucker saying he got in an accident because he was looking for a joint can
come in against the employer (someone else can say that he said it)
b. however, trucker’s statements about hiring policies cannot come in,
outside scope of his job
2. made during the existence of the agency or employment relationship
3. NO requirement for communication to outsiders
ii. employees to not adopt the statements of their employers
1. minutes of a corporate board meeting may not be used against a non-attending,
non-participating employee of that corporation (Mahlandt v. Wild Canid Survival
& Research Center)
a. liability goes up the chain of command, not down
h. Conspirators’ Statements R801(d)(2)(E) & 104(a)
i. A conspirator’s statements may be introduced as an opposing party statement against a
fellow conspirator IF
1. A conspiracy existed at the time the out-of-court statement was made;
2. The conspiracy included both the feclarant and the party against whom the
statement is offered; and
a. Defendant “knew of the venture and intended to associate with it”
3. The declarant spoke during the course of and in furtherance of the conspiracy
a. Confessions made knowingly to the police are not in furtherance of the
conspiracy
ii. Admission is at the discretion of the judge under R104(a)
1. Standard is preponderance of the evidence
a. The contested hearsay statement itself may be evidence of the existence of
the conspiracy and other preliminary facts (Bourjaily v. United States)
i. Not clear whether judge may rely solely on the hearsay statement
b. Individual pieces of evidence which are insufficient in themselves may
cumulatively prove a point
c. The evidentiary standard is unrelated to the burden of proof on the
substantive issues
d. Parties cannot introduce their own statements in self-serving way
iii. The effect of Miranda rights and silence – PUT IN OPPOSING PARTY STATEMENTS
1. Silence may be used to impeach a defendant pre-Miranda reading, regardless of
whether he is in custody
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a. Defendant’s claim of self-defense at trial could be impeached by his
failure to raise this defense when arrested (Fletcher v. Weir)
2. Silence post-Miranda reading is never admissible against the defendant, as
adoptions or impeachment (Doyle v. Ohio)
3. Circuits are split on whether silence by the defendant pre-Miranda may be an
adoption under R801(d)(2)(B)
a. Probably admissible if made by friend or private employer, provided no
police officer was nearby
4. Probably not an adoption if made by police officer
iv. Bruton doctrine – when there’s joint defendants, if co-defendant in joint jury trial admits
liability and refuses to testify, this violates other defendant’s Sixth Amendment right to
confrontation
Hearsay Exceptions - Past statements of Witness and Past Testimony
5. Past Statements of Witnesses and Past Testimony R613?
a. Inconsistent statements offered to impeach
i. Past inconsistent statements may be offered to impeach IF
1. The declarant testifies at the current proceeding AND
2. Questioning lawyer has a good-faith belief that witness made the past statement
ii. 613(b) does not absolutely require that a foundation be laid to introduce a prior
inconsistent statement, only that an opportunity be given to the declarant to explain or deny
that statement
1. Excluding the prior inconsistent statement of an alleged co-conspirator for lack of
foundation was reversible error (US v. Barrett)
iii. when testimony lacks any probative value and carries a high risk of prejudice, the evidence
must be excluded, even when it meets the technical requirements of Rule 607
1. testimony of a police officer that a witness was lieing, although fitting the
requirements for impeachment of credibility (R607) was merely a backdoor way to
get the witness’s statement to the police officer on the record, and such attempts to
evade the hearsay rule are invalid (US v. Ince)
iv. The effect of Miranda rights and silence – PUT IN OPPOSING PARTY STATEMENTS
1. Silence may be used to impeach a defendant pre-Miranda reading, regardless of
whether he is in custody
a. Defendant’s claim of self-defense at trial could be impeached by his
failure to raise this defense when arrested (Fletcher v. Weir)
2. Silence post-Miranda reading is never admissible against the defendant, as
adoptions or impeachment (Doyle v. Ohio)
3. Circuits are split on whether silence by the defendant pre-Miranda may be an
adoption under R801(d)(2)(B)
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a. Probably admissible if made by friend or private employer, provided no
police officer was nearby
b. Probably not an adoption if made by police officer
b. Past inconsistent statements offered substantively R801(d)(1)(A)
i. Admissible IF
1. Declarent testifying at current proceeding AND
2. Subject to cross-examination about the prior statement AND
3. Statement was given under oath at a “proceeding” or deposition
c. Past consistent statements
i. Admissible IF
1. Declarent is tesifying in current proceeding and is subject to cross-examination
about the prior statement AND
2. Past statement is consistent AND
3. Is offered to rebut charge of recent fabrication or improper motive AND
a. Only admissible if fabrication or alterior motive alleged
b. NOT admissible to show general veracity of prior testimony
4. statements were made before the charged recent fabrication or improper influence
or motive arose (Tome v. United States)
a. hearsay statements by child saying she wanted to remain with her mother,
after the parents had split up, were after motive arose to fabricate abuses
by her father (Tome v. United States)
ii. Statements of identification R801(d)(1)(C)
1. Admissible IF
a. Declarent is tesifying in current proceeding and is subject to crossexamination about the prior statement AND
b. Past statement identifies a person whom declarent perceived earlier AND
c. Process of identification has a reasonable assurance of accuracy? And was
not unduly suggestive
i. A composite drawing made with a “kit” that uses transparent
overlays is admissible as substantive evidence of identification
under Rule 801(d)(1)(C), so long as its creation was not “tainted”
and the procedures used in its creation were not unnecessarily
suggestive (Commonwealth v. Weichell)
2. An inability to recall the identity of the perpetrator at trial does not make the
previous identification inadmissible, under either R802 or Sixth Amendment
a. Victim’s previous identification of the perpetrator was sufficient, even
though he failed to identify defendant immediately after accident, and
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could not recall any of the visitors he had after the attack (United States v.
Owens)
3. Policy: closer in time identifications to when you saw them should be allowed in,
more credible, as long as reasonably reliable
d. The problem of double hearsay:
i. Multiple levels of hearsay: A witness is referencing something that a declarant said who in
his or her speech is referencing something that another declarant had said and a party wants
attempts to bring the statements in for their truth.
1. E.g., A said something to B and B said something to C who testifies in court
regarding what A said to B and B repeated to C that A said.
ii. Have to be exceptions for each level: To be admissible all lawyers of the hearsay must fall
under an exception.
Hearsay Exceptions – Declarant Unavailable
6. Hearsay Exceptions Under Rule 804: “Declarant Unavailable”
a. ALL of these require that the declarant is unavailable R804(a)
i. 5 grounds of unavailability
1. privilege
2. absence from the jurisdiction
3. illness or death
4. lack of memory
5. stubborn refusal to testify
ii. these are all waived by a misdeed
b. Past testimony R804(a), (b)(1)
i. Testimony given at a former proceeding or deposition is admissible against a party who on
the prior occasion had an opportunity and a motive to cross-examine or develop the
testimony of that witness
1. The motive to cross-examine in the prior proceeding must be essentially the same
as at trial
a. Court looks to the “fundamental objective” of the party at the time
b. Inherently factual inquiry
c. Defendant’s motive at a suppression hearing to demonstrate that
declarant’s statements were involuntary and in violation of Miranda was
fundamentally different from his motivation at trial to challenge the
substance of the statements (US v. Duenas)
2. The opportunity to cross-examine must be essentially the same as at trial
a. Grand jury proceedings do not allow for cross-examination, inadmissible
under this rule
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3. Party against whom the statement is offered must be the same – same issue is
insufficient
a. Exception: in civil cases, statement may come in if a “sufficient
community of interest” exists between the party against whom the
statement is offered and their “precedessor in interest”
b. Coast guard and defendant shared a “community of interest” because both
had interest in showing that plaintiff had started the fight, thus proving that
defendant was not liable and coast guard not liable for negligent
entrustment (Lloyd v. American Export Lines, Inc.)
ii. If the requirements are met, no confrontation clause problem (Duenas)
c. Statements Against Interest R804(b)(3)
i. Statements admissible IF
1. a reasonable person in the declarant’s position would have made only if the person
believed it to be true because, when made, it was so contrary to the declarant’s
proprietary or pecuniary interest or had so great a tendency to invalidate the
declarant’s claim against someone else or to expose the declarant to civil or
criminal liability; and
a. Defined narrowly to exclude all statements in a larger narrative which are
not self-inculpatory (Williamson v. US)
i. Judge may include a limiting instruction, probably
b. Applies to declarant’s financial, property or criminal interests
2. is supported by corroborating circumstances that clearly indicate its
trustworthiness, if it is offered in a criminal case as one that tends to expose the
declarant to criminal liability.
d. Dying declarations R804(b)(2)
i. The dying declaration of the unavailable declarant is admissible IF
1. It is a criminal prosecution for homicide OR a civil case AND
2. Declarant believes death is impending and certain
a. Must have lost all hope of recovery
b. Imploring a doctor to make you well defeats a claim you thought death
was certain (Shepard v. United States)
c. It’s not the belief of the doctor, belief of the declarant
3. Statement regards cause or circumstances of death
ii. Very hard for a written statement to be a dying declaration
e. Forfeiture by wrongdoing R804(b)(6)
i. Declarant’s out of court statement may be offered against any party who
1. wrongfully made the declarant unavailable and
a. suffices that party acquiesced in making party unavailable
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2. did so with the purpose of preventing the declarant from testifying
a. intentionally making a declarant unavailable as a witness in ANY
proceeding forfeits the right to exclude, on hearsay grounds, the declarant's
statements at ALL subsequent proceedings (US v. Gray)
ii. Judge must be persuaded that defendant is responsible for the unavailability of the witness
AND that the motivation was for the specific purpose of preventing the witness from
testifying
1. burden of proof is a preponderance of the evidence
2. evidence of admission of killing witness to a friend and evidence that one victim
feared for his life is sufficient (US v. Gray)
f.
Statement of Personal or Family History R804(b)(4)
i. A statement about:
ii. the declarant’s own birth, adoption, legitimacy, ancestry, marriage, divorce, relationship by
blood, adoption, or marriage, or similar facts of personal or family history, even though the
declarant had no way of acquiring personal knowledge about that fact; or
iii. another person concerning any of these facts, as well as death, if the declarant was related
to the person by blood, adoption, or marriage or was so intimately associated with the
person’s family that the declarant’s information is likely to be accurate.
Hearsay Exceptions – Availability Immaterial
7. Exceptions Under Rule 803: Declarant’s Availability Immaterial
a. Present Sense Impression R803(1)
i. A statement describing or explaining an event or condition,
ii. made while or immediately after the declarant perceived it.
1. Must be very short amount of time that passed – no time to fabricate
b. Excited Utterance R803(2)
i. A statement relating to a startling event or condition,
1. Event must be startling by it’s nature
ii. made while the declarant was under the stress of excitement that it caused
1. important factors:
a. nature of event
i. traumatic accident, gunfight
b. passage of time
i. no hard and fast rule, probably never more than one hour
c. visual clues
i. exclamatory phrase
ii. excitement-oriented verb – shout, scream
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iii. exclamation points!!!
iii. Look for confrontation clause problems
c. Statements of then-existing condition R803(3)
i. A statement of the declarant’s then-existing state of mind (such as motive, intent, or plan)
1. Whenever a person’s intention is of itself a distinct and material fact in a chain of
circumstances, it may be proved by contemporaneous oral or written declarations
of the party
a. Letters to family that man was going to Wichita with another man was
proper evidence of his intention to travel there (Mutual Life Insurance v.
Hillmon)
2. State of mind evidence may only look forward into the future with statements of
feeling or intent
a. Woman’s statement to her doctor that she believed her husband had
poisoned her was backward-looking, not admissible (Shepard v. US)
3. allowing statements of intention cannot come in to prove the future intention of
someone who is not the declarant
4. only admissible to (1) whether decarant had this plan and (2) carried out the plan
ii. or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health)
iii. NOT including a statement of memory or belief to prove the fact believed UNLESS related
to the validity of the terms of a will
d. Statements for Medical Diagnosis or Treatment R803(4)
i. A statement that is made for — and is reasonably pertinent to — medical diagnosis or
treatment; and
1. Statements of young girl to doctor more than 1.5 hours after incident that she “was
grabbed, held around the neck, and threatened” was admissible as reasonably
related to treatment (US v. Iron Shell)
2. It is sufficient that the information eliminates potential physical problems from the
doctor’s examination
a. Does not matter if examination would have been identical to the one he
performed without the information
3. Does NOT have to be made to a physician
a. Can be made to hospital attendants, ambulance drivers, even family
members
4. Statements to doctor about who harmed them never admissible
5. Certain statements never admissible
a. “driver of car who hit me ran a red light”
6. child has same knowledge and incentive to be honest in medical treatment as
anyone else
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ii. describes medical history; past or present symptoms or sensations; their inception; or their
general cause.
iii. If patient makes statement
iv. Generally applies to three types of statements:
1. Medical history
2. Past or present sensations
3. Inception or general cause of the disease or injury
e. Refreshing Memory and Recorded Recollections R803(5) & 612
i. Hearsay does not apply to a record that:
1. is on a matter the witness once knew about but now cannot recall well enough to
testify fully and accurately;
a. requires evidence that a witness had firsthand knowledge of an event
(Johnson v. State)
b. if you conveniently forget, this is purjury
2. was made or adopted by the witness when the matter was fresh in the witness’s
memory; and
a. “near the time of the event while the witness had a clear and accurate
memory of it”
3. accurately reflects the witness’s knowledge.
a. Requires evidence that the witness’s memory was correctly transcribed
and that factual assertions are true (Johnson v. State)
b. Witness must vouch for the accuracy of the written memorandum
(Johnson v. State)
i. Enough that they see signature, think they wouldn’t have signed it
if it weren’t true
ii. Procedure: If admitted, the record may be read into evidence but may be received as an
exhibit only if offered by an adverse party.
iii. R612 – rule for using writings specifically
1. If it’s a writing, has to go through 612
f.
Business Records R803(6) & (7)
i. records of any type of business
1. can be digital, format doesn’t matter
ii. made in the regular course of business
iii. where business records of this type are regularly kept
1. Does NOT include accident reports prepared for litigation even if the reports are
prepared in a routine, systematic process (Palmer v. Hoffman)
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2. Conditions shown by a custodian or qualified witness
3. Absence of a business record can be evidence if there normally would have been a
record but for whatever is seeking to be proved
iv. made at or about the time of the event recorded (contemporaneous)
v. contents consist of information observed by employees of business OR statement falls
within independent hearsay exception
1. statements by outsiders in a business record must be redacted, unless it falls within
an independent hearsay exception (US v. Vigneau)
a. otherwise outsider statements are inadmissible hearsay
vi. Procedure: examine each entry individually
vii. Policy: businesses need reliable information, we’ll presume it’s reliable
g. Public Records and Reports
i. A record or statement of a public office is admissible if:
1. it sets out:
a. the office’s activities;
b. a matter observed while under a legal duty to report, but not including, in a
criminal case, a matter observed by law-enforcement personnel; or
i. in a criminal case, excludes police reports/investigations prepared
for prosecutorial purposes
1. encourages cops to testify live
2. also confrontation clause issues
ii. does not exclude routine activities of police department, such as
maintenance records of the radar guns
c. in a civil case or against the government in a criminal case, factual
findings from a legally authorized investigation; and
i. construed broadly to ensure reports that contain opinions or
conclusions are not automatically excluded from evidence (Beech
Aircraft Corp. v. Rainey)
ii. conclusions and opinions of a Judge Advocate General’s report
were admissible as to the cause of a plane malfunction (Beech
Aircraft Corp v. Rainey)
iii. four part test:
1. timeliness of investigation
2. special skill or experience
3. hearing held
4. done with eye for possible litigation?
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2. neither the source of information nor other circumstances indicate a lack of
trustworthiness.
h. Ancient documents R803(16)
i. 20 or more years old
ii. regular on it’s face
1. no white-outs, erasures
2. possible that declarant needs to have first-hand knowledge of matter asserted
iii. found in a place of natural custody
1. where you would expect to find it
The Residual Exception
8. Residual Exception R807
a. Even though not falling within an exception, hearsay may be admissible IF:
i. the statement has equivalent circumstantial guarantees of trustworthiness;
1. a newspaper article is likely trustworthy if the event it describes would have been
known throughout the community – the newspaper’s reputation depends on it
(Dallas County v. Commercial Union Assurance)
ii. it is offered as evidence of a material fact;
iii. it is more probative on the point for which it is offered than any other evidence that the
proponent can obtain through reasonable efforts; and
1. statement may be admissible if described event happened so long ago that there is
likely no trustworthy eyewitness (Dallas County)
iv. admitting it will best serve the purposes of these rules and the interests of justice.
b. Notice requirement – proponent of statement must give other party reasonable notice about
intention to introduce it
i. including the declarant’s name and address
c. Near-miss theory: rule covers evidence that could almost come in under another exception, but not
quite
i. Circuit split was settled by the restyling of the rules
Confrontation and Compulsory Process
The Confrontation Clause and Hearsay
1. Rule: In a criminal case, defendants shall have the right to confront their accusers (Sixth Amendment)
a. The government does not possess this right, even when a defendant in a criminal case
b. Never extends to either party in a civil case
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2. Rule: Testimonial statements cannot be used against a defendant who is not given the opportunity to
confront the witness giving the statement
a. Exceptions:
i. declarant is available at trial for cross-examination (California v. Green)
ii. if declarant is unable to testify and D had prior opportunity to cross-examine (Mattox)
iii. defendant who intends by his wrongdoing to keep the declarant from testifying at trial and
thereby renders the declarant unavailable forfeits his confrontation right (Giles v.
California)
b. Bars ONLY testimonial statements introduced for the purpose of establishing the truth of the
matter asserted
i. see non-hearsay purposes for out of court statements, page 27
c. Test for what is testimonial is “primary purpose”:
i. Testimonial: Establishing or proving past events potentially relevant to a later criminal
prosecution (Bullcoming)
ii. Non-testimonial: resolving an ongoing emergency (Davis v. Washington)
d. Clearly Testimonial statements:
i. Solemn declarations… made for the purpose of proving some fact (Crawford v.
Washington)
ii. “Formalized testimonial materials” (White v. Illinois) (Thomas, concurring)
1. “affadavits, depositions, prior testimony, confessions”
e. Clearly NON-testimonial statements:
i. Casual, offhand remarks
1. Offhand, overheard remarks do not implicate confrontation clause
ii. Coconspirators’ Statements
iii. (Some) Business Records
1. does not apply to certificates of analysis sworn to before a notary by state drug lab
analysts (Melendez-Diaz)
f.
Key factors:
i. Suggesting statement IS testimonial:
1. Involved “government officers in the production of testimony with an eye toward
trial” (Crawford)
a. State lab technician’s sworn statement declaring a substance the defendant
possessed to be cocaine is testimonial (Melendez-Diaz v. Massachusetts)
b. A lab technician’s sworn statement remains testimonial even if technician
is absent and another technician testifies about the procedures followed
and equipment used in such analyses (Bullcoming v. New Mexico)
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2. Does “precisely what a witness does on direct examination” (Bullcoming v. New
Mexico)
3. For child victims: the primary purpose is often assessed based on who had the
clearest motives for speaking
a. Questioning of three-year-old by social worker in company of police
officer in the police department using a ‘forensic technique’ indicates the
statement is testimonial (Bobadilla v. Carlson)
ii. Suggesting statement is NOT testimonial:
1. Presence of an ongoing emergency
a. A dying gunshot victim’s answers to police questions about who shot him
were not testimonial because the gunman’s unknown motives, intentions,
and location created an ongoing emergency (Michigan v. Bryant)
i. Not clear what this holding was based on
2. Absence of motivation to lie/fabricate
a. Testimony be an expert witness who relies heavily on the lab report of an
absent technician does not violate the Conforntation Clause at least when
the author of the underlying report did not know if the reported results
would aid the prosecution (Williams v. Illinois)
3. For child victims: the younger the declarant and the more private her disclosure,
the more readily a court will deem the statement non-testimonial
a. 12-year-old sexual assault and murder victim’s statement to a friend a
week before the murder that she was afraid of her uncle and that he made
weird looks at her and grabbed her inappropriately, and her insistence
friend “not tell anyone” was not testimonial (People v. Loy)
b. statements to doctors and nurses by children are almost never testimonial
4. Dying declarations are probably not testimonial
a. Identified as “sui generis” in Crawford opinion
b. Four Bullcoming dissenters plus Thomas would almost certainly favor the
pragmatic approach: admit dying declarations that appear reliable
iii. Bruton doctrines: if co-defendant confesses and refuses to testify against other defendant,
violates contfrontation right to use his confession against the other
iv. Defendant has a right to call accusers to the stand on their behalf
Lay Opinions and Expert Testimony
Lay Opinions
1. R701 Opinion Testimony by Lay Witnesses—If the witness is not testifying as an expert, the witness’
testimony in the form of opinions or inferences is limited to those opinions or inferences which are
a. (a) rationally based on the perception of the witness, and
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i. personal knowledge requirement
ii. interpreted loosely, no requirement that witnesses purge all inferences from testimony
iii. Two categories:
1. fundamental inferences that resist being boiled down to fundamental facts
2. opinions that can be reduced to more fundamental facts but are nonetheless helpful
b. (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in
issue, and
i. again, a loose standard, in the discretion of the court
ii. testimony may not be helpful if it uses “legal jargon”
1. “grossly negligent” “reasonable care”
iii. may not be helpful if simply declares who should win/lose lawsuit
c. (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702
Expert Testimony
2. R702 Testimony by Experts—If scientific, technical, or other specialized knowledge will assist the trier
of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by
knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or
otherwise, if
a. (1) the testimony is based upon sufficient facts or data,
i. Proper basis for the expert’s opinion R703
1. Personal Knowledge
a. IE the physician who treated plaintiff can testify about this treatment
2. Other evidence in the trial record
a. Medical records, other testimony
3. Facts outside the record IF of a type reasonably relied upon by experts I this
field in forming their opinions
a. Whatever people in the field normally rely on is fine
b. May be relied upon by the expert even if the source/statements would be
inadmissible hearsay on their own
c. NOTE: expert may not say exactly what is in these sources
i. May describe them in general terms without disclosing the actual
contents (otherwise hearsay)
ii. Exception: learned treatise hearsay exception R803(18)
1. Relevant portions/excerpts from a learned treatise may be read into record as
substantive evidence (to prove truth of the matter) IF the treatise is established as a
reliable authority
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a. Must be done in conjunction with live expert testimony, not simply on its
own
2. Procedure:
a. Simply read into evidence, text NOT admissible for jury inspection
b. Available on direct examination to bolster or on cross to contradict
b. (2) the testimony is the product of reliable principles and methods, and
i. test is NOT “general acceptance” (Daubert v. Merrell Dow) (overruling Frye v. US)
ii. Daubert factors of reliability:
1. Whether the technique “can be (and has been) tested”;
2. Whether it has been “subjected to peer review and publication”
a. Failure to cite pre-litigation research suggests the research was developed
expressly for the purpose of testifying or trial, and is therefore disfavored
(Daubert)
3. “the known or potential rate of error”
a. failure of expert to determine with any certainty how far a tire had traveled
cast doubt on opinion of relative tread wear differences (Kumho Tire
Company v. Carmichael)
4. “the existence and maintenance of standards controlling the technique’s operation”
5. “general acceptance” in the relevant scientific community
a. Frye still relevant, just not determinative
b. Lack of evidence of any other experts employing a specific “two-factor
test” to judge the cause of a tire malfunction suggests unreliability (Kumho
Tire Company v. Carmichael)
c. When there is a lack of peer-review or publication, court may require “a
learned treatise, the policy statement of a professional association, a
published article in a reputable scientific journal or the like” to show that
they have followed the scientific method as it is practiced by at least a
minority of scientists in their field (Daubert)
iii. Other factors:
1. Inadequate inspection: An inspection only relying on photographs, or which was
brief, or done only immediately before a deposition suggest unreliability (Kumho
Tire Company v. Carmichael)
iv. Test is the same for technical expertise as for “scientific” expertise (Kumho Tire Company
v. Carmichael)
v. Court has wide latitude to decide HOW the reliability of expert’s testimony will be
evaluated, in addition to whether the testimony is reliable
c. (3) the witness has applied the principles and methods reliably to the facts of the case.
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i. Trial judge must scrutinize the principles and methodology AND on the expert’s
conclusions (General Electric v. Joiner)
1. “nothing in either Daubert of the Federal Rules of Evidence requires a district
court to admit opinion evidence which is connected to existing data only by the
ipse dixit of the expert. A court may conclude that there is simply too great an
analytical gap between the data and the opinion proffered.”
ii. Requires adequate showing of causation (Daubert)
d. Other Reuirements:
i. “qualified as an expert”
1. does NOT require formal degrees or education, may be hands-on experience (See
My Cousin Vinny)
ii. Fact(s) at issue are proper subject matter for expert testimony
1. scientific, technical or specialized knowledge that will be helpful to the jury in
deciding a fact issue
2. NOT topics of common knowledge
3. NOT opinions on law or opinions on ultimate issues in criminal trials R704(b)
4. Syndrome Evidence
a. Can use expert testimony to explain why a person acted the way they did
i. Must make sure they’re a real expert, using scientific methods
(qualifications and Daubert factors)
ii. Only if the studies are really, truly reliable (more suspect in this
context)
b. Evidence to explain why people in a certain situation act a certain way
MAY be relevant depending on…
i. Whether other side is making this issue a big deal
1. IE defense relying on fact rape victim asked charges be
dropped against perpetrator
ii. There are particular reasons why this conduct needs an alternative
explanation
1. IE why rape victim moves back in with abuser
e. Standard of review: abuse of discretion (General Electric v. Joiner)
i. Trial judge’s decisions will almost always be upheld
3. R705 Expert need not provide basis for opinions in the first place, but may be required to on crossexamination
Impeachment

All witnesses (including defendant)
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May always bring up character for truthfulness, after they’ve testified
 Specific rules apply depending on how it’s attacked
o Prior inconsistent statements (limited to contradiction unless under oath)
o Contradictory evidence (limited to contradiction)
 Can ask about anything about the incident itself
 Where were you standing, how far away, how did you know?
o Bias
o Perception/sensory
o Narrative, ect.
o Can always ask about anything that happened
o After that – independent evidence
 Prior inconsistent statements
 Bias
 Direct questions about untruthfulness
 Witness ONLY on opinion or reputation for truthfulness
 Can test this person’s basis for their opinion (did you know)
 Can never prove these actually happened
 If they admit to it, can follow up “did that affect your opinion?” “why not?”

o After that – what you can ask about
 Prior acts showing untruthfulness
 Prior crimes meeting felony or truthfulness requirements
Character witnesses (including defendant if he testifies on character)
o Question them on general character for _____ (what they testified on)
o Question them about prior acts of defendant which contradict ________ trait
 Must have good-faith basis for questions
 If they say they did know of incident, may follow up with “did that change your opinion?”
o Can also go after character for truthfulness
o

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